United Fire Fighters' Union of Australia v Metropolitan Fire and Emergency Services Board
[2011] FWA 7986
•23 NOVEMBER 2011
[2011] FWA 7986 |
|
DECISION |
Workplace Relations Act 1996
s.170LW- pre-reform Act- Application for Settlement of Dispute (Certified Agreement)
United Fire Fighters’ Union of Australia
v
Metropolitan Fire and Emergency Services Board
(C2011/5767)
COMMISSIONER ROE | MELBOURNE, 23 NOVEMBER 2011 |
Alleged dispute concerning the obligations of the parties under the Agreement and clause 16.2 and clause 10 of the Agreement.
[1] On 7 September 2011 the United Fire Fighters’ Union of Australia (UFU) made an application to deal with a dispute in accordance with the disputes settlement clause (Clause 10) of the Metropolitan Fire and Emergency Services Board Administrative and Operational Support Staff Agreement 2005 (as varied in Order PR983901) (the Agreement). The employer party to the Agreement is the Metropolitan Fire and Emergency Services Board (MFB). The Agreement was certified by the Australian Industrial Relations Commission (AIRC) on 9 May 2006 and it was subsequently extended and varied by the AIRC on 2 October 2008. The Agreement was made under the Workplace Relations Act 1996 (WR Act) prior to 26 March 2006 and therefore the dispute is dealt with pursuant to Section 170LW of the WR Act. The Agreement and Section 170LW continued to operate pursuant to Part 2, Schedule 7 of the Workplace Relations Amendment (Work Choices) Act 2005 (Work Choices Act).
[2] Therefore, together with the operation of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and Schedule 19 of that Act in particular, the provision of section 170LW of the WR Act is able to be utilised to resolve disputes under the terms of the Agreement. Pursuant to Item 6 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 references in the certified Agreement to the AIRC are to be read as if they were references to Fair Work Australia. Negotiations are currently underway for a new Agreement as the nominal expiry date of the Agreement has passed.
[3] Section 170LW of the WR Act provides as follows:
“170LW Procedures for preventing and settling disputes
Procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject to the agreement may, if the Commission so approves, empower the Commission to do either or both of the following:
(a) to settle disputes over the application of the agreement;
(b) to appoint a board of reference as described in section 131 for the purpose of settling such disputes.”
[4] Section 595 of the Act provides that Fair Work Australia cannot deal with the dispute at large but can only deal with the dispute if it is expressly authorised to do so. It is clear that FWA can deal with this dispute to the extent that it is authorised by the terms of the Agreement and it is consistent with the powers under Section 170LW as they were under the WR Act.
[5] Clauses 10 and 16.2 of the Agreement are as follows:
“10. DISPUTE RESOLUTION
The following dispute resolution procedure will apply to any dispute over the application of the Agreement that arises between the MFB and employees who are covered by the Agreement.
a) In the first instance, the dispute will be discussed between the employee/s concerned and their immediate supervisor. A Union representative or other representative as nominated by the employee shall be present if desired by either party.
b) If the dispute is not resolved, it shall be referred to the next level of management. A union representative or other representative as nominated by the employee shall be present if desired by either party.
c) If the dispute is still unresolved, it shall be referred to senior management and/or senior management representatives and the Union representative or other representative as nominated by either party.
d) The parties to the dispute will endeavour to complete steps (a) and (c) within 10 calendar days.
e) If the dispute is not resolved, it may be referred to the Australian Industrial Relations Commission for the purposes of conciliation and arbitration.
f) While the above procedures are being followed, that work practice or situation that existed immediately prior to the lodgement of the dispute (status quo) shall be maintained until the matter is resolved.
g) No party shall be prejudiced as to the resolution of the dispute by working in accordance with this clause.
h) This clause does not apply to any dispute involving a bona fide health and safety issue.”
“16. CAREER PATHS AND OPPORTUNITIES
...
16.2 Descriptors
For those employees covered by the Metropolitan Fire and Emergency Services Board Administrative Officers, Professional Engineers and Support Staff Award 2000, the MFB and relevant unions shall negotiate the adoption of new descriptors applying in the MFB. These negotiations shall take into consideration the descriptors previously developed by the MFB and those applying in the Victorian Public Service.
The MFB and relevant unions shall finalise these negotiations within six months of 2008 variation of this Agreement. If no agreement has been reached at the end of six months, the parties may refer this matter to the Australian Industrial Relations Commission for conciliation.”
The parties and the material before the Tribunal.
[6] The UFU was represented by Ms K Bowshell. Leave was granted for her to appear. The MFB was represented by Mr J Tuck. Leave was granted for him to appear.
[7] Mr Casey Lee, Industrial Relations Manager for the UFU, gave evidence. The evidence of Mr Lee included 27 attached documents. 1 Mr Lee was closely involved with the negotiation of an agreement with the MFB which was reached on 13 July 2011 which the parties at the time said was reached under Clause 16.2 of the Agreement. The UFU provided written submissions and submissions in reply.2
[8] Ms Michele Salmon who had been Executive Manager Employee Relations for the MFB from 2004 until September 2008 gave evidence. Ms Salmon’s evidence particularly focused on the events leading up to the making of the Agreement in 2008. There were ten documents attached to her Statement. 3 Mr Arnold Garcia who was a member of the Employee Relations Group for the MFB gave evidence particularly related to the events leading up to the making of the Agreement in 2008. There were twelve documents attached to his evidence.4 Mr Aaron Hogan who is an Employee Relations Officer for the MFB gave evidence particularly related to the period from September 2008 until June 2010. There were twelve documents attached to his evidence.5 The MFB provided written submissions.6
[9] The matter was heard on 9 November 2011. I have carefully considered all of the submissions and the evidence.
[10] Following the hearing and whilst I was in the process of writing this decision the ASU contacted my office to advise that they had not been aware of the proceedings notwithstanding that they are a party to the Agreement and that they have a direct interest in the matter. The AMWU and NUW are also parties to the Agreement; however, their members are not affected by Clause 16.2 which is the subject of this dispute. The ASU, APESMA and the UFU members are affected by Clause 16.2. I requested that the ASU put in writing what it was they wished FWA to consider and I advised the UFU and the MFB.
[11] The submission of the ASU was received on 16 November 2011 from Mr Rizzo. Mr Rizzo advised that: “I have attached a Stat Dec which gives you my re-collection of what the parties intended and I hope you take this into deliberation when making your decision.” The Statutory Declaration of Mr Rizzo said that he negotiated the 2008 Agreement on behalf of the ASU and that:
“We spent some time during the negotiations discussing a new classification system at the MFB, which was more aligned to the CFA and VPS classification systems. My recollection of Clause 16.2 in the Agreement was that the parties were going to negotiate a new classification system and if we were unsuccessful that we would seek assistance from then referred to as the AIRC.”
[12] I advised the parties that I had the preliminary view, subject to considering any submissions to the contrary, that I should accept and consider this statement of Mr Rizzo. If the statement were accepted it would be on the basis that:
a. I would note the statement of Mr Rizzo only as evidence that the ASU had the view prior to the certification of the Agreement that Clause 16.2 was designed to be inclusive of negotiations for a new classification system.
b. I would also note that Mr Rizzo does not provide any evidence of what was said or done by the MFB negotiators of the Agreement which supported his conclusion or of anything which was said or done jointly by the parties to the Agreement which supports his conclusion about the intention of Clause 16.2.
[13] The MFB objected to this course of action and required that any evidence should be subject to cross examination. I came to the conclusion that even if I accepted the Statement of Mr Rizzo on the basis I had suggested it would not affect any of my findings or conclusions. I have therefore not had regard for Mr Rizzo’s Statement.
Jurisdiction and the nature of the dispute.
[14] The parties engaged in substantive negotiations under clause 16.2 from about December 2010 to July 2011. The discussions concerned the adoption of new descriptors and a classification system for staff covered by the certified agreement. The UFU gave evidence that on 13 July 2011 an agreement (the 13 July Agreement) was reached between the MFB and the UFU.
[15] The UFU submitted as follows:
“Mr Lee gave evidence that the agreement was:
a) each staff member of the MFB would be “translated” across to the equivalent level within the classification structure from the CFA Professional, Technical and Administrative Agreement 2006-2007 as set out in attachment CL13 to Lee based upon the “points” value of their position as assigned by MFB staff;
b) if after the translation a given employee’s salary did not increase by at least 5%, the employee would be moved to the paypoint within the classification which put them closest to a 5% increase;
c) the translation process would be undertaken in the week commencing 18 July 2011 by representatives of the UFU and the MFB; and
d) following the translation process, the UFU and the MFB would continue to discuss the precise wording of the new narrative descriptors, together with the adoption of a performance based progression system for employees.
The agreement was partly written and partly oral. It was made by:
a) an oral offer by a representative of the MFB during a teleconference on 13 July 2011 to the effect that the UFU proposed translation would be accepted and immediately implemented by the MFB conditional upon the UFU agreeing:
i. to provide “a commitment in writing of in principle agreement that incremental progression would be based on an agreed merit based progression system”; and
ii. to progress discussion of narrative descriptors; and
b) a letter from the UFU accepting the above and providing the agreement set out in a)i. and ii.
On 14 July 2011 Ms Byrnes notified the UFU that the MFB was having some “troubles with government”, and that it would be 3 weeks until the required government committee met. 7
On 4 August 2011 the CEO of the MFB wrote to the UFU informing the UFU that it had received advice that the matter of the adoption of a new classification structure should be “taken forward as part of the negotiations for a new Enterprise Agreement”.
The MFB has not implemented the new classification structure agreed with the UFU. The UFU submits that it is obliged to do so by Clause 16.2 of the certified agreement.” 8
[16] I accept this evidence and submission which was not challenged by the MFB.
[17] I am satisfied that in dealing with an alleged dispute pursuant to Clause 170LW I must first characterise the dispute and then I must determine if it is a dispute about the application of the agreement. Only if this is determined in the affirmative can I then proceed to consider the competing positions of the parties in respect to the suggested remedy to the dispute and resolve the dispute.
[18] Clause 10 of the Agreement provides for arbitration by the AIRC after the exhaustion of negotiation and conciliation. I am satisfied and the parties accepted 9 that, the required steps in the disputes settlement procedure have been followed in respect to the alleged dispute and that pursuant to Clause 10(e) Fair Work Australia can arbitrate the dispute provided that the dispute falls within the scope of the disputes settlement clause and Section 170LW.
[19] The dispute is not and cannot be about the “the adoption of new descriptors” because Clause 16.2 specifically provides that the parties will finalise negotiations about this matter within six months and if agreement is not reached it may be referred to the tribunal for conciliation. The express mention of conciliation in this clause overrides the power to arbitrate in the disputes settlement clause of the agreement. Hence, for example, I cannot arbitrate a dispute over what the new descriptors should be. This was not contested by the parties. This does not mean that other matters relating to Clause 16.2 and its application cannot be settled using the Clause 10 disputes settlement procedure, including arbitration.
[20] The UFU characterised the dispute as one over the application of Clause 16.2 of the Agreement. In other words it is a dispute over what Clause 16.2 requires the parties to do. It is not in dispute, and I find, that an agreement was reached between the MFB and the UFU on or about 13 July 2011 as summarised in the UFU submission quoted earlier (the 13 July Agreement). The alleged dispute relates to what Clause 16.2 of the Agreement requires the parties to do. If I find that the dispute does relate to the obligations of the parties under Clause 16.2 of the Agreement then it follows that it is a “dispute over the application of the Agreement” and it is also within the scope of Clause 10 Dispute Resolution.
[21] The UFU seeks findings that:
- The 13 July 2011 agreement was an agreement under Clause 16.2 of the Agreement.
- Clause 16.2 of the Agreement requires the MFB to implement the 13 July Agreement reached under that clause.
- The MFB must implement the 13 July Agreement as soon as possible and from the week commencing 18 July 2011.
[22] The approach to the second and the third findings sought by the UFU is relatively straightforward.
[23] I am satisfied and I find that the term in Clause 16.2 that the parties “shall negotiate the adoption of new descriptors applying in the MFB” requires that the parties implement any agreement reached about the “adoption of new descriptors”. I make this finding based upon an ordinary meaning of the words of the Clause in the context of the Agreement as a whole and having regard to the common use of such terms in industrial relations practice and the history of the industrial relations practice in the industry and between the MFB and UFU in particular. This was not seriously contested by the MFB. Hence I find that if there is an agreement under Clause 16.2 then Clause 16.2 requires that the agreement be implemented.
[24] I am satisfied that the timing of any implementation is primarily a matter to be negotiated between the parties. That is, if an agreement reached between the parties under Clause 16.2 includes an agreement about the implementation timetable then that timetable forms an enforceable part of that agreement. If the agreement is an agreement under Clause 16.2 then an agreement about the timetable is also an agreement under Clause 16.2. The parties accepted in response to my questioning that there could be more than one agreement or a staged agreement under Clause 16.2. It is not in dispute that in this case the 13 July Agreement did contain an agreed timetable for implementation. If no agreement on a timetable or an implied timetable had been reached then I doubt that the Tribunal would have been able to arbitrate that matter given that Clause 16.2 does not provide the Tribunal with the authority to arbitrate the “adoption of new descriptors” but only provides it with the power to conciliate that matter.
[25] If the 13 July Agreement is not an agreement under Clause 16.2 of the Agreement then it is not possible to use Clause 16.2 to require the 13 July Agreement to be implemented. It is not suggested that there is any other power in the Agreement which could provide the Tribunal with the authority to make such a finding.
[26] If, as is argued by the UFU, the 13 July Agreement is an agreement under Clause 16.2 of the Agreement then, for the reasons I have set out earlier, the dispute is a dispute about the application of the Agreement and the obligations of the parties under Clause 16.2 in particular. It would also then follow that there is an obligation on the parties to implement that 13 July Agreement and to implement it in the timetable that formed a part of that agreement.
[27] It is important to distinguish between the nature of the dispute and the remedies sought. Many of the arguments of the MFB about why the Tribunal does not have jurisdiction in this matter can properly be characterised as arguments about why the remedies sought are outside of jurisdiction. Essentially the MFB argues that the dispute should be characterised as being about the implementation of the 13 July Agreement. 10 They argue that the 13 July Agreement is not an agreement under Clause 16.2 and therefore a dispute about that agreement is not a matter which is about the application of the Agreement. If this were accepted then it follows that the Tribunal has no jurisdiction pursuant to Section 170LW to deal with the dispute.
[28] In my view this is too narrow a construction of the nature of the dispute.
[29] In my view there is strong evidentiary support for characterising the dispute as being a dispute about the obligations which arise under Clause 16.2 in the event that an agreement has been reached rather than it being narrowly a dispute about a failure to implement a particular agreement reached.
[30] The following submissions and evidence from the UFU was not contested:
- On 17 December 2010 the UFU wrote to Ms Kirstie Schroder of the MFB in relation to “corporate and technical staff classifications, descriptors and salaries” 11 and on 14 January 2011 Ms Schroder confirmed that the MFB “have engaged Mercer’s to research wage structures, classification methodologies and classification point values across the MFB, CFA, Vic Pol and VPS”.12
- On 17 February 2011 the MFB provided the UFU with the Mercer report which was titled “Remuneration Benchmarking for Non-Executive Staff”. 13
- On 16 March 2011 the UFU notified an alleged dispute with FWA stating that “clause 16 provides for review and negotiation of employees’ classification structures” and “the parties did not finalise negotiations within six months of the 2008 variation of the Agreement and have not finalised negotiations to date”. 14
- On 28 March 2011 following a conciliation conference directions were issued by FWA that included “the UFU and MFB are to provide an outline of how they see Clause 16.2 being implemented prior to the next conference”. 15
- In accordance with this direction the MFB provided their position “regarding the implementation of clause 16.2” on 31 March 2011. That position on its own terms was an outline of the MFB position concerning “the implementation of clause 16.2.” That position included the following: “MFESB welcomes the introduction of a revised, market based classification structure for corporate staff which addresses some existing anomalies in the structure, ensures proper salary bandwidth and equitable positioning which facilitates the attraction and retention of quality talent.” 16
- On 20 April 2011 the Executive Leadership Team (ELT) of the MFB issued a communiqué to staff covered by the Agreement in which they said “MFB and employee representatives to the Corporate and Technical Staff Agreement are working on an improved classification structure.” The communiqué went on to explain the conciliation process before FWA in respect to this matter. 17
- On 13 July 2011 the UFU wrote to the MFB confirming the agreement which had been reached and also issued a bulletin to UFU members on the subject. The content of that bulletin was read to and agreed with Danielle Byrnes, MFB Executive Director, prior to it being issued. 18 That bulletin stated that “the current enterprise agreement for corporate staff included a clause that required the parties to review the current classifications with a view to ascertain their applicability to the wider Victorian Public Sector.” The bulletin then outlined the nature of the agreement reached.19
- In response to UFU concerns about the delay in proceeding with the 13 July Agreement Ms Danielle Byrnes wrote to the UFU on 18 July 2011 and stated: “the matter of the classification structure for our Corporate and technical staff has been negotiated with you and other employee representatives in good faith. We acknowledge that this is a long outstanding matter and the ELT and Board of MFB support market - equitable wage outcomes for our valued staff.” 20
- On 15 August 2011 the CEO of the MFB Mr Nick Easy sent a bulletin to all staff in which he said under the heading “Administrative and Technical Employees Classification Structure” that: “By now everyone is aware that the Classification Structure was not delivered during the life of the last collective agreement.” He then went on to explain that: “The expiry of the collective agreement, Government policy on bargaining and the requirements of the new Fair Work Act have led the MFB to the view that the introduction of the new Classification Structure is be (sic) dealt with as part of the new EA.” 21
[31] This evidence satisfies me that both the UFU and the MFB regarded the 13 July Agreement as being an agreement under Clause 16.2 of the Agreement. They both publicly and privately characterised what they were doing as being pursuant to the process they had committed to in Clause 16.2 of the Agreement. From December 2010 until August 2011 this was the process they thought that they were engaged in. Mr Lee gave detailed and direct evidence which confirmed this. There was no evidence from the MFB which challenged this.
[32] The evidence is also clear that the UFU was in dispute with the MFB about the decision of the MFB, confirmed by the 15 August 2011 bulletin of the CEO, to not proceed to implement the 13 July Agreement which both parties at that time characterised as pursuant to their obligations under Clause 16.2 of the Agreement. The UFU sought the assistance of the Tribunal through conciliation and then through arbitration to resolve the dispute over what were the obligations of the parties under Clause 16.2.
[33] The approach I have adopted to the characterisation of the dispute, and in rejecting the narrower approach to characterisation suggested by the MFB, is consistent with the Full Bench decisions of the AIRC in 170LW jurisdiction matters and in SDAEA v Big W Discount Department Stores 22 and in ASU v Australian Taxation Office23 in particular.
[34] In SDAEA v Big W there was a clause which committed the parties to abide by OHS legislation, to discuss perceived OHS issues with the objective of reducing injuries, to allow training and consultation, and to consult about changes which may affect OHS. The Commissioner at first instance found that this did not provide the Tribunal with the power under 170LW to find that a particular solution, “anti fatigue matting”, to a perceived OHS problem must be introduced. The Commissioner at first instance also found that to do so would be to create new obligations and this was inconsistent with resolving disputes about the application of terms of the agreement under Section 170LW.
[35] However, the Appeal Bench in upholding the appeal against the Commissioner’s decision found at Paragraph 25 that: “.... what comprises a dispute over the application of an agreement should not be narrowly constructed, to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.” The Full Bench found that the dispute was not just about the anti-fatigue matting but was about occupational health and safety more broadly. The anti-fatigue matting was a means of resolving the dispute rather than the character of the dispute. The agreement imposed an obligation to abide by OHS legislation to achieve certain objectives.
[36] In the ASU v ATO case the full bench reaffirmed the position in SDEA v Big W 24 and also reaffirmed the observation in the Kucks case about not adopting narrow or pedantic approaches and the ability to strain for meanings which avoid inconvenience or injustice. They found that the industrial context is relevant in determining the mutual intention of the parties. The Full Bench accepted that aspirational words like “committed to ensuring” can create an enforceable obligation particularly given that legislative background would have been in the minds of the framers of an agreement and in that context the parties expect that agreements give rise to binding obligations.
[37] I am satisfied that in this case the dispute is a dispute about what Clause 16.2 of the Agreement requires the parties to do. In that sense it is a dispute about the application of the Agreement. Clause 10 of the Agreement provides the Tribunal with the power to settle a dispute over the application of the Agreement and Section 170LW of the WR Act also allows this to occur. A dispute over the obligations of the parties under Clause 16.2 of the Agreement establishes sufficient relationship or nexus between the dispute and the provisions of the relevant agreement. 25 The subject matter of the dispute is reasonably incidental to the application of the agreement to which the dispute relates.
[38] Clause 16.2 excludes the Tribunal from arbitrating a dispute prior to the reaching of an agreement over the “adoption of the new descriptors” but the dispute is not about this matter but about what are the obligations of the parties in the event that an agreement over the adoption of the new descriptors has been reached.
[39] The matter which remains to be determined is therefore whether or not the 13 July Agreement was an agreement under Clause 16.2. For the reasons discussed earlier this is a matter which I have the jurisdiction to determine under Clause 10 of the Agreement and under Section 170LW.
The approach to interpretation of Clause 16.2
[40] Mr Tuck for the MFB set out the relevant principles for interpretation of an Agreement as follows:
“The principles of interpretation of industrial instruments are settled. A useful summary of the principles applicable to the interpretation of industrial instruments is found in the following cases:
(a) City of Wanneroo v Holmes (1989) 30 IR 363 per French J at 378. The interpretation of an award begins with a consideration of the natural and ordinary meaning of the words.
(b) Bond & Co Ltd (in liquidation) v McKenzie (1929) 28 AR 499; Hancock SDP in PTC of Victoria v ARTBIU - The words used in an industrial instrument should not be interpreted in a strict, technical fashion, because those who framed the industrial instrument are often non-lawyers drafting words in the context of custom and practice in an industry or particular enterprise.
(c) Re Clothing Trades Award (1950) 68 CAR 597 - If the terms of an industrial instrument are clear and unambiguous, then the industrial instrument must be interpreted in accordance with that clear and unambiguous meaning.
(d) Ambulance Service of Victoria (South Western Region) v LHMU (1998) 80 IR 275 per Northrop J at 281. The aim is to give the meaning intended by the parties, keeping in mind that the framers may have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon.
(e) Re Tenix Defence Systems Pty Ltd Certified Agreement 2001-2004 PR9174548 at paras [29-30] – The Commission has to make an objective assessment of the words used in the relevant provision. The surroundings of the relevant provision cannot be ignored. In assessing the clarity of the relevant provision, the Commission is required to construe the words having regard to their context including, where appropriate, the relevant parts of a related instrument.” 26
[41] I accept this approach and also have regard for the summary in Vice President Lawler’s decision Watson v ACT Department of Disability Housing and Community Services. 27 The decision of the High Court in Codelfa Construction Pty Ltd v State Rail Authority of NSW28 is also important. This approach was adopted in Telstra Corporation v CPSU and others.29
“The true rule is that evidence of surrounding circumstance is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.” 30
[42] In BP Australia Pty Ltd v Nyran Pty Ltd 31, Nicholson J distilled, by reference to Codelfa, the following points of principle for resolving ambiguity in contracts:
- it is necessary firstly to determine whether the contract has a plain meaning or contains an ambiguity;
- if the contract has a plain meaning, evidence of surrounding circumstances will not be admissible to contradict the language of the contract;
- if the language of the contract is ambiguous or susceptible of more than one meaning evidence of surrounding circumstances is admissible to assist in the interpretation of the contract;
- the concept of surrounding circumstances is to be understood to be a reference to the objective framework of facts. It will include:
- evidence of prior negotiations so far as they tend to establish objective background facts known to both parties and the subject matter of the contract;
- facts so notorious that knowledge of them is to be presumed;
- evidence of a matter in common contemplation and constituting a common assumption.
[43] After referring to the foregoing points of principle Nicholson J continued as follows:
“From the evidence of that setting the parties' presumed intention may be taken into account in determining which of two or more possible meanings is to be given to a contractual provision. What cannot be taken into account is evidence of statements and actions of the parties which are reflective of their actual intentions and expectations. Objective background facts can include statements and actions of the parties which reflect their mutual actual intentions. That is, evidence of the mutual subjective intention of the parties to a contract may be part of the objective framework of facts within which the contract came into existence. It is the mutuality which makes the evidence admissible.” 32
[44] In Telstra Corporation v CPSU and others 33 the Bench made the following observation:
“Generally speaking, it is well established that the subsequent conduct of the parties to a contract is not admissible as an aid to construction of a contract. A contrary view was expressed by Santow J in Spunwell Pty Ltd v BAB Pty Ltd 34. However, even on the Spunwell approach subsequent conduct will only be relevant to the limited extent that the “conduct evidences a clear and mutual subjective intention as to what the contract originally meant.””35
Was the 13 July Agreement an agreement under Clause 16.2?
[45] For the reasons set out earlier the MFB and the UFU certainly regarded the 13 July Agreement as an agreement under Clause 16.2 of the Agreement up until at least 15 August 2011. During the period from December 2010 until 13 July 2011 the MFB and the UFU thought that they were engaged in a process pursuant to the Agreement and clause 16.2 in particular in seeking to finalise matters related to corporate and technical staff classifications, descriptors and salaries. However, just because the parties thought that is what they were doing does not mean that the 13 July Agreement was an agreement under Clause 16.2.
[46] To determine whether or not the 13 July Agreement was an agreement under Clause 16.2 it is necessary to determine whether or not the agreement can be characterised as an agreement concerning the “adoption of the new descriptors.”
[47] I am satisfied that Clause 16.2 should not be construed so narrowly as to exclude an agreement concerning the adoption of new descriptors also dealing with related matters such as:
- The timing of adoption;
- The process for implementation and related training, consultation and information matters;
- How consequential pay adjustments should be implemented; and
- How situations where an employee is classified at a higher or lower level (both in respect of pay and level in the structure) should be handled.
[48] In response to my questions during proceedings the parties did not dispute this approach.
[49] I am also satisfied that Clause 16.2 should not be construed so narrowly as to exclude an agreement being staged. That is, an agreement in respect of certain elements and adoption and implementation at one point in time on the understanding that there will be a subsequent agreement in respect to remaining elements.
[50] However, what is in contention is the extent to which an agreement which goes beyond “new descriptors” to include “new classifications and salaries” can be said to be an agreement under Clause 16.2.
[51] The MFB argues that:
“The UFU’s claim, to the extent that it concerns a new classification structure, cannot constitute a dispute over the application of clause 16.2 of the MFB Agreement upon a proper construction of that clause. On a proper construction of clause 16.2, it does not confer any rights or obligations upon the parties in respect of a new classification structure.” 36
[52] The UFU argue that descriptors and classification structure are intertwined.
[53] In answering this question I should first look at the plain words of Clause 16.2 in their context in the Agreement. In doing so I have regard for the words of the Honourable Madgwick J of the then Industrial Relations Court of Australia:
“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. 37
[54] Agreements and Awards commonly have classification structures. A classification structure in an Agreement or Award conventionally has the following elements:
- A series of classification points or levels to which a pay level (or pay levels) are attributed.
- Definition of the requirements which justify placement at a particular classification level.
- Definition of the process by which classification and disputes about classification are determined particularly if there are changes in the work performed or in the skills, competencies, and qualifications of a worker or required of a worker.
[55] The definition of the requirements to justify placement at a particular classification level varies between particular Agreements and Awards. In some cases it is a simple description of the job role; in other cases it is a more detailed description of the level and characteristics of the work, authority and responsibilities; in other cases it is a description of the level of qualification and or skill and or competency required; and in other cases it may be a combination of these matters.
[56] Descriptors are generally seen as a part of a classification structure. A change in the descriptors may well result in an individual worker being classified and paid at a different classification level when their skills, competencies and or qualifications are compared with the new descriptors. However, a change in the descriptors does not necessarily mean a change in the number of classification levels or in the pay rate(s) attributed to each of those levels. The 13 July Agreement involves a move to the CFA Professional Technical and Administrative Agreement structure. That structure is quite similar in its number of pay points and levels to the structure in Schedule 1 of the Agreement. However, the translation to the CFA structure does involve some change to the number of pay points and the pay rate(s) attributable to those points. 38
[57] A plain reading of the words “adoption of new descriptors” does not necessarily permit a review of the number of classification levels or in the pay rate(s) attributed to each of those levels. However, such a meaning cannot be excluded given how interrelated the descriptors, classification levels and pay levels are in industrial practice. In the absence of any consideration of the context or mutual intention, I consider it likely that the parties in “expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment” without much attention to “legal niceties or jargon” would have used the term “adoption of new descriptors” as including the possibility of related changes to the pay and classification levels.
[58] The heading of Clause 16 “Career Paths and Opportunities” gives some support for an approach consistent with the industrial practice described above. Clause 46 of the Agreement is headed “Wages” and provides that “all employees shall receive the wages as outlined in Schedule 1”. Schedule 1 sets out a number of pay points attributable to levels MFB 1 through to MFB 8 for administrative officers, professional engineers and support staff. Neither clause 46 nor Schedule 1 use the term “classification levels” or “classification structure”. Clause 30 is headed “Classification and Promotion Appeals” and provides that “for the purposes of translation and appeal in the matter of promotion and classification” the procedure in Schedule 4 shall apply. Schedule 4 establishes a Classification Committee with the power to decide “the appropriate level of the classification of the position.” The Agreement does not contain any definitions for MFB 1 through to MFB 8 nor any other reference to the criteria for determining how an employee will be classified or paid in accordance with Schedule 1.
[59] Clause 16.2 says that the negotiations will take into account the descriptors applying in the Victorian Public Service and those descriptors are aligned to a different structure and number of classification levels and pay points. This also gives some support to an approach consistent with industrial practice which includes the possibility of related changes to pay and classification levels.
[60] The restriction on arbitration of the actual content of the descriptors also favours a broader approach. The parties have confidence in entering into the negotiations to finalise the “adoption of new descriptors” that they cannot be forced to adopt a particular outcome. This allows for the consideration of a more open agenda.
[61] There is nothing else in the context of the Agreement as a whole which assists. The plain words suggest that Clause 16.2 is about the “adoption of new descriptors” but looked at in the context of the Agreement as a whole and the industrial context the term should be read as encompassing an agreement about the adoption of new descriptors which could include related changes in pay and classification levels.
[62] If there was a mutual intention and or context that suggested that descriptors must be read narrowly and strictly then the industrially ordinary meaning might be challenged. On the other hand if there was a mutual intention and or context that suggested that descriptors must be read as interchangeable with classification structures then the industrially ordinary meaning might also be challenged. In other words mutual intention or context might narrow the meaning to exclude related changes to pay and classification levels as argued for by the MFB, or it might broaden the meaning to treat descriptors and classification structure as intertwined or interchangeable as argued for by the UFU. In the absence of this an agreement of the parties under Clause 16.2 may include related matters including related changes in pay and classification levels.
[63] The clause requires the parties to negotiate the adoption of new descriptors. FWA cannot arbitrate about the content of the agreement. What is included in any agreement is a matter to be defined by the parties and in the absence of evidence of mutual intention to the contrary this may include related matters including aspects of the classification structure and translation rules and assessment processes. The timing of adoption or implementation may also be a matter which is part of such an agreement. Furthermore, the parties may reach partial or staged agreements on the adoption of the new descriptors. In the absence of mutual intention to the contrary all these matters are reasonably within the scope of “negotiate the adoption of new descriptors.”
[64] It is appropriate in this situation to examine whether or not further guidance can be given from the wider context and the mutual intention of the parties in making the agreement.
Was there a mutual intention of the parties to narrow or broaden the meaning of “adoption of new descriptors” in Clause 16.2?
[65] Although the UFU presented strong evidence that the parties saw Clause 16.2 as extending to changes to the classification levels and pay levels and treated descriptors and classification levels as interchangeable or intertwined in respect to the period 2010/11 they only presented one piece of evidence that relates to the period in the lead up to the making of the Agreement.
[66] That piece of evidence was the Transcript of the proceedings when the variation to the Agreement which included the insertion of Clause 16.2 was approved by Senior Deputy President Watson on 2 October 2008. 39 At PN21 Mr Pargeter on behalf of the UFU said “A review of the classification structure, 16.2, Your Honour, is another clause where we’ll seek to resolve that within the first six months of this agreement, but if not we will seek the assistance of the Commission.” Mr Pargeter was not called to give evidence; however, the MFB representative who spoke at these proceedings, Mr Garcia, did give evidence. Mr Garcia did not recall Mr Pargeter’s statement and could not provide any explanation as to why he did not respond to the submission of Mr Pargeter.
[67] The UFU submits that this is evidence that the mutual intention of the parties was that the term “adoption of new descriptors” is interchangeable with “a review of the classification structure”.
[68] The MFB provided evidence which they argue shows that it was not the mutual intention of the parties that the term “adoption of new descriptors” encompass “any review of the classification structure”.
[69] The strongest evidence in this respect is the evidence of Michele Salmon who was the MFB Executive Manager, Employee Relations responsible for the negotiations of the Agreement during the period 2004 to 2008. 40 Her evidence is that in 2005 negotiations commenced for a new agreement (the 2005 Agreement) and that a new classification structure was one of the major issues addressed in those negotiations. The negotiations resulted in a new structure being inserted into the agreement and translation of employees to that new structure resulted in some significant pay increases in addition to the annual 3% wage adjustments provided for in the resulting agreement. Clause 2.2, Appendix 1 of the 2005 Agreement stated that: “employees would be appointed to a Grade based on work and experience requirements in accordance with Standard Descriptors.” No descriptors formed part of the Agreement and it was the evidence of Ms Salmon that there were no such descriptors finalised at the time the 2005 Agreement was made.41 Ms Salmon gave evidence that she commenced work on development of the descriptors after the 2005 Agreement was certified in May 2006. The work that she did on this was then further developed by Mercer’s who provided the MFB with a report in November 2007.
[70] In the introduction to the Mercer report, it states that:
“As a result of recent negotiations, a revised classification framework has been developed. The framework ranges from MFB1 – MFB 8. It has been agreed that a set of descriptors will assist with communicating to managers and employees the differences between the classification levels ... The document provides information relating to the application of work level descriptors, our approach to developing the work level descriptors, descriptors for each level of the classification framework and the next steps.” 42
[71] I am not satisfied that the Mercer Report in any way reflects the mutual intention of the parties in that there is no evidence it was developed in conjunction with the unions or that the unions have ever approved it. The MFB argue that because the structure was new in 2005 it is unlikely that there was an intention to change it arising from a proposal for the adoption of descriptors in 2009. I do not accept this argument. There is no reason why a review of descriptors could not lead the parties to associated changes in the classification levels and pay levels. The reference in Clause 16.2 to taking into consideration the VPS descriptors which sit in a different classification level structure points in this direction, as does the evidence of Ms Salmon that the unions strongly rejected the Mercer CED method which was the basis for the MFB work which Clause 16.2 says is also to be taken into consideration.
[72] On the other hand, the consistency between the evidence of Ms Salmon, the Mercer Report and the 2005 Agreement give some support to the contention that the focus of the MFB in negotiations for the Agreement in 2008 was to finalise new descriptors to support the classification structure which was newly introduced in the 2005 Agreement.
[73] Ms Salmon and Mr Garcia gave unchallenged evidence that the unions in the negotiations for the Agreement in 2008 were pursuing a new classification structure but that the MFB rejected this claim and instead were pursuing the finalisation of new classification descriptors. The UFU submitted that there was no clear evidence that the UFU were present at the meeting(s) where Ms Salmon communicated the MFB rejection of the proposal for a new classification structure. Considering the evidence as a whole I am satisfied that Ms Salmon on behalf of the MFB did communicate the view of the MFB that the focus should be on the adoption of new descriptors and that the MFB rejected reference to revised classifications in Clause 16.2.
[74] I do not regard the evidence of Ms Salmon or Mr Garcia as establishing that the MFB and the UFU reached a mutual agreement or had a mutual intention that the negotiations about the adoption of new descriptors proposed to be finalised in the first six months of the Agreement were to exclude the possibility of related changes to the classification and pay levels. There is no evidence that the MFB and the UFU agreed that the words “adoption of new descriptors” was to totally exclude the unions’ claim for revisions to the classification structure.
[75] Ms Salmon could not give any evidence that the unions had specifically dropped their claim for changes to the classification structure 43 or that the unions agreed that the use of the term “adoption of new descriptors” excluded or was designed to exclude any changes to the classification structure. The closest the evidence comes to this is an internal advice from Mr Garcia to the MFB leadership team on the progress of bargaining on 16 May 2008 in which it is reported "The unions have requested the inclusion of a clause in the agreement for the adoption of the VPS descriptors."44 Mr Garcia said the following when asked about this matter:
“Did you understand what that meant?---Yes, at some point in time I suppose the negotiations went from classification structure and then to descriptors and one of the unions was specifically looking at getting VPS descriptors.” 45
[76] I am not satisfied that this summary by the MFB is evidence that the unions had abandoned their claim for changes to the classification structure or that they accepted that the use of words “adoption of new descriptors” or “adoption of the VPS descriptors” excluded changes to the classification structure.
[77] Ms Salmon gave evidence about how the draft wording for what became Clause 16.2 developed during the negotiation process. Ms Salmon gave evidence that:
“On 1 July 2008, I sent an email to all Corporate Staff at the MFB informing them of the status of the negotiations for the new agreement. The update included the following:
“The MFB have also given a commitment in the Agreement for negotiations to be undertaken for the adoption of new descriptors which may include the possibility of adopting the VPS Descriptors. These negotiations with the relevant unions will be finalised within 6 months of the commencement of this Agreement.” 46
[78] On 4 September 2008 the Agreement was issued for consideration by employees and then voted on by employees and approved by SDP Watson on 2 October 2008.
[79] The evidence presented by the MFB supports the contention that the MFB deliberately drafted the words “adoption of new descriptors.” None of the evidence or the documents from the period prior to the hearing before SDP Watson suggests any contemplation by the MFB of changes to the classification levels and pay levels in the structure. The MFB consistently refers to the “adoption of new descriptors.”
[80] I accept that the failure of the MFB to correct the statement by Mr Pargeter at the hearing when the Agreement was certified has some significance and lends some weight to the contention that there was a mutual intention that changes to classification levels and pay levels might be contemplated by the adoption of new descriptors.
[81] The UFU contend: “While the plain words of clause 16.2 do refer only to descriptors, it is clear from the time that the agreement was varied to contain 16.2 in late 2008, the parties regarded the two as being intertwined or interchangeable.” 47 The evidence supports the contention that the parties regarded the two as being intertwined and contemplated by Clause 16.2 in the period from the end of 2010 until August 2011.
[82] The evidence of Aaron Hogan is to the effect that in the period between October 2008 and November 2010 there was no negotiation of new classification structure and pay points only discussion about descriptors. I am satisfied from the evidence of Mr Hogan and Mr Lee and examination of the various documents that in fact there were no substantive negotiations between the parties during this period and hence the material does not provide any evidence about mutual intention.
[83] It is possible that Ms Schroder could have also given evidence about what happened in the period leading up to the making of the Agreement but Ms Salmon and Mr Garcia who were in responsible positions during that period have given evidence and there has been no evidence from the UFU about that period. In those circumstances I do not find that the failure to call Ms Byrnes, Ms Schroder and Mr S Hogan suggests that their evidence would not have been helpful to the MFB. Certainly Ms Byrnes and Mr S Hogan were not involved in the period leading up to the 2008 Agreement so they could not have given evidence about mutual intention during that period. I have accepted the UFU evidence about the period about which they could give relevant evidence namely the period leading up to the 13 July Agreement.
[84] I am not satisfied that the MFB have established that there was a mutual intention to exclude the possibility of a new classification structure. The following passage from the recent decision of Justice Gray in Health Services Union v Ballarat Health Services is instructive: 48
“Care is needed in approaching any suggestion of a common understanding as to terms used. In the first place, there must be positive evidence of a common understanding. Ordinarily, a failure to advance an argument as to the effect of a particular provision will not constitute such evidence. A failure to advance an argument is consistent with inadvertence, and common inadvertence is not common understanding. See Australian Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd [2006] FCA 11 (2006) 149 FCR 209 at [44]- [46] and Shop Distributive and Allied Employees’ Association v Woolworths Ltd [2006] FCA 616 (2006) 151 FCR 513 at [31]- [32].”
[85] It may well be true that the unions retained a desire and even an intention to seek to utilise Clause 16.2 to pursue a new classification structure with the MFB. Certainly the fact that this was their claim prior to the making of the Agreement and the mutual actions of the parties after the making of the Agreement suggest that this was the case. However, in the absence of any evidence from the UFU about the situation in the lead up to the making of the Agreement, I cannot conclude that this was the mutual intention of the parties.
[86] The evidence in respect of mutual intention is not conclusive. I am not satisfied that in making the Agreement in 2008 there was a mutual intention that the “adoption of new descriptors” should exclude the adoption of related new classification levels and pay levels as argued by the MFB. Further, the UFU have not established that there was a mutual intention that the terms “new descriptors” and “new classifications” or “new classification structure’ are intertwined or interchangeable.
[87] If the evidence of what happened after the Agreement was made could be used to establish mutual intention then there is no doubt that the situation would be different. The evidence is very strong that the parties regarded the 13 July Agreement as being pursuant to Clause 16.2. As late as 15 August 2011 the MFB CEO made it very clear that he regarded it as the mutual intention of the parties that the classification structure be “delivered during the life of the last collective agreement.” 49 Danielle Byrnes made it clear that the classification structure had been a long outstanding matter.50 However, the authorities strongly suggest that the behaviour and statements of the parties after the making of the Agreement should not be used to interpret an Agreement.
[88] Therefore, I conclude that I must rely on a plain reading of the words of the Agreement in the context of the Agreement as a whole and the industrial context. Therefore, an agreement under Clause 16.2 about the “adoption of new descriptors” may include related changes to classifications and pay levels. I have concluded that in the context of the Agreement as a whole and the industrial context, the terms “new descriptors” and “new classifications” or “new classification structure” are not interchangeable. This is why any agreement to changes to classifications and pay levels must be related to the adoption of new descriptors if the agreement is to be under Clause 16.2.
Conclusion
[89] I now turn to consider if the 13 July Agreement is an agreement about the adoption of new descriptors including related changes to classification and pay levels. The MFB submit that the 13 July Agreement does not constitute an agreement to the adoption of new descriptors. The summary of the 13 July Agreement says that: “following the translation process, the UFU and the MFB would continue to discuss the precise wording of the new narrative descriptors”. 51 Mr Lee gave evidence that the wording of the descriptors had not been agreed. The UFU provided no evidence of the nature and extent of any agreement which had been reached about new descriptors. Clause 16.2 envisaged that the parties “shall finalise these negotiations within six months.” The negotiations and agreement to which this refers is about the “adoption of new descriptors.” If the agreement does not lead to the adoption of new descriptors then it cannot be an agreement under Clause 16.2.
[90] I have already observed that a series of staged agreements would not be inconsistent with the requirements of Clause 16.2. However, an agreement which does not include the adoption of some wording for new descriptors cannot be reconciled with the wording of Clause 16.2.
[91] Of course it is open to the parties to reach agreement on unrelated matters but the agreement about those matters would not be enforceable under the Agreement and the disputes settlement clause cannot be utilised in respect to those matters. If the matters were sufficiently incidental or related then they would form an enforceable part of the agreement.
[92] In this case the 13 July Agreement is an agreement to implement new classification and pay levels and to continue to discuss associated descriptors rather than an agreement to implement new descriptors and associated new classification and pay levels. The latter could be an agreement under Clause 16.2 whilst the former cannot be.
[93] The parties negotiated the 13 July Agreement which in good faith they both believed was pursuant to Clause 16.2 of the Agreement. The MFB must have obtained appropriate authority to commit to the Agreement. It is readily apparent that the adoption of the new descriptors would mean that some employees who were currently classified at one level will end up being appropriately classified at a higher level in the pay and classification structure regardless as to whether or not the agreement to adopt new classification descriptors pursuant to Clause 16.2 of the Agreement was aligned to the current classification structure or a modified one. This would be the ordinary industrial expectation. The outcome of this process was clearly intended to be a part of the current Agreement and not the next agreement. The failure of the parties to implement an agreement pursuant to Clause 16.2 of the Agreement is not consistent with their obligations under Clause 16.2. The MFB’s actions in not honouring the 13 July Agreement is not conducive to good industrial relations practice.
[94] However, because the 13 July Agreement does not include the substantial adoption of a least some new descriptors it cannot be regarded as an agreement about the adoption of new descriptors. It therefore follows that the 13 July Agreement does not have sufficient nexus with Clause 16.2 for me to find that it is an agreement under Clause 16.2.
[95] I find that the 13 July Agreement is not an agreement about the “adoption of new descriptors” under Clause 16.2.
COMMISSIONER
Appearances:
Ms K Bowshell appeared for the United Firefighters’ Union of Australia (the Applicant.
Mr J Tuck appeared for the Metropolitan Fire and Emergency Services Board (the Respondent).
Hearing details:
2011
Melbourne
9 November
Decision Summary
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – classifications – pay levels – s.170LW Workplace Relations Act 1996 (pre-reform) – s.595 Fair Work Act 2009 – Schedule 7 Workplace Relations Amendment (Work Choices) Act 2005 (Work Choices Act) – dispute regarding descriptors relating to classifications and pay levels under enterprise agreement – dispute resolution clause of pre-reform enterprise agreement continues to operate via transitional legislation – enterprise agreement requires employer and unions to ‘negotiate the adoption of new descriptors applying in the MFB’ – union asserted that an agreement was made in 2011 regarding descriptors – assertion rejected – 2011 agreement is an agreement to implement new classification and pay levels and to continue to discuss associated descriptors rather than an agreement to implement new descriptors and associated new classification and pay levels – purported 2011 agreement is not an agreement about the ‘adoption of new descriptors’ under the enterprise agreement. | ||||
United Fire Fighters’ Union of Australia v Metropolitan Fire and Emergency Services Board | ||||
C2011/5767 | [2011] FWA 7986 | |||
Roe C | Melbourne | 23 November 2011 | ||
Citation: United Fire Fighters’ Union of Australia v Metropolitan Fire and Emergency Services Board [2011] FWA 7986 (23 November 2011) | ||||
1 Exhibit UFU 2.
2 Exhibits UFU 1 and UFU 3.
3 Exhibit MFB 2.
4 Exhibit MFB 4.
5 Exhibit MFB 3.
6 Exhibit MFB 1.
7 Exhibit UFU 2, at para 36.
8 Exhibit UFU 1, at paras 18 to 22.
9 PN136.
10 Exhibit MFB 1, at para 40.
11 Exhibit UFU 2, Attachment 3.
12 Ibid, Attachment 4.
13 Ibid, Attachment 5.
14 Ibid, Attachment 6.
15 Ibid, Attachment 7.
16 Ibid, Attachment 10.
17 Ibid, Attachment 12
18 Exhibit UFU2, at para 31.
19 Exhibit UFU 2, Attachments 18 and 19.
20 Ibid, Attachment 23.
21 Ibid, Attachment 27.
22 PR924554.
23 PR961315.
24 PR924554 at para 52.
25 See the Full Bench decisions in Automated Meter Reading Services v ASU (PR922053) and CPSU v Seven Network (PR933766).
26 Exhibit MFB 1, at para 48.
27 [2008] AIRC 29.
28 (1982) 149 CLR 337 at 352.
29 PR95498914.
30 Ibid at 352.
31 (2003) 198 ALR 442.
32 Ibid, at 34. The decision was subject to appeal in which the Full Court quoted Nicholson J’s characterisation of the surrounding circumstances without dissent - see BP Australia Ltd v Nyran Pty Ltd [2004] FFCA 163 (24 June 2004), at [18].
33 PR95498914 at para 42.
34 (1994) 36 NSWLR 290.
35 Ibid at 312.
36 Exhibit MFB 1, at para 44.
37 [1996] IRCA 166.
38 Exhibit UFU 2, Attachments 1 and 13.
39 Ibid, Attachment 2.
40 Exhibit MFB 2.
41 Ibid at para 18.
42 Exhibit MFB 2, at para 25 and Attachment MS3.
43 PN617.
44 Exhibit MFB 4, Attachment AG5.
45 PN700.
46 Exhibit MFB 2, at para 38.
47 Exhibit UFU 3, at para 22.
48 (2011) FCA 1256, at para 77.
49 Exhibit UFU 2, Attachment 27.
50 Ibid, Attachment 23.
51 Exhibit UFU 1, at paras 18 and 19.
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