United Voice v Spotless Facility Services Pty Ltd T/A Spotless Facility Services

[2019] FWC 7178

[2019] FWC 7178

FAIR WORK COMMISSION

DECISION

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

United Voice
v
Spotless Facility Services Pty Ltd T/A Spotless Facility Services
(C2018/4993)

DEPUTY PRESIDENT BULL SYDNEY, 16 OCTOBER 2019

S.739 Application to deal with a dispute. Interpretation of an agreement, evidence of surrounding circumstances.

[1] In this matter, United Voice (the Union) has made an application for the Commission to deal with a dispute in accordance with the dispute settlement procedure set out in the Spotless Facility Services and Unions Southern NSW Defence Estate Maintenance & Operations Services Enterprise Agreement 2016 (the Agreement). The respondent to the dispute is Spotless Facility Services (Spotless) who is named as the employer in the Agreement at clause 4. 1

[2] Clause 11 – Model Dispute Resolution of the Agreement provides (among other listed matters) that a dispute concerning a matter arising under the Agreement may be referred to the Fair Work Commission (the Commission) for conciliation and, failing resolution, the Commission may arbitrate the dispute by making a determination.

[3] The matter was subject to a Commission conciliation conference on 16 October 2018, following which Spotless undertook to consider whether any employee under the Agreement should be reclassified from a Cleaner Level 1 to a Cleaner Level 2 as per the definitions contained in Schedule A of the Agreement. Despite the reclassification of some employees by Spotless the dispute remained unresolved and a further conciliation conference was held on 12 May 2019 where it was determined by the parties that a resolution was unable to be reached and the matter was requested to be listed for arbitration.

[4] Spotless sought to be legally represented at the hearing which was opposed by the Union who were represented by Mr Davis, a Union Industrial Office. For the reasons provided in transcript, Spotless were granted leave to be legally represented, suffice to state that the Commission was satisfied that the question of interpretation of the Agreement involved a degree of complexity where legal representation would enable the matter to be dealt with more efficiently. 2

[5] In the Agreement approval decision 3 both United Voice and the National Union of Workers (NUW) are noted as being covered by the Agreement.

Issue to be determined

[6] The issue for determination is the interpretation of the wording found at Schedule A Classifications and Wage Rates Cleaning Employees of the Agreement in relation to the definitions of Cleaner Level 1 and Cleaner Level 2.Clause 16 of the Agreement Classifications and Mixed Functions states at 16.1:

“The classification definitions for each service line are set out in Schedules A-F”

[7] The relevant definitions are in Schedule A and read as follows:

“The provisions of Schedule A shall apply to all employees engaged in cleaning services and related duties.

All employees will be classified according to the following classification definitions and paid as such, with the exception of employees within Canberra who are engaged under the Cleanstart Agreement.

Cleaner Level 1

This level shall apply to an employee who at the completion of their training and induction is capable of performing work within the scope of this level. Such an employee to the level of their training:

•  is responsible for the quality of their own work subject to routine supervision;

•  works under routine supervision either individually or in a team

•  exercises discretion within the level of their skills and training;

•  report all maintenance and cleaning equipment condition; and

•  performs those tasks customarily performed by cleaners utilising a range of materials and equipment, to clean a range of surfaces in order to restore or maintain buildings in a clean and hygienic condition.

Indicative of the tasks which an employee at this level may perform, on a daily or periodic basis, are the following:

•  cleaning work of any description, including but not limited to;

◦  collecting, sorting, storage and disposal of refuse;

◦  spot cleaning of carpets and soft furnishings;

◦  operating hand held powered equipment such as blowers, vacuum cleaners and polishers;

◦  sweeping and mopping;

◦  toilet cleaning;

◦  cleaning of glass, both internal and external; dusting of all hard surfaces;

•  re-arranging and re-organising furniture;

•  servicing accommodation areas and cleaning thereof;

•  responsibility for the distribution and maintenance of toilet and other requisites and

•  cleaning materials in building/s or establishment/s.

Cleaner Level 2

This level shall apply to an employee who has completed 12 months service at level 1and is capable of performing work within the scope of this level

•  works from complex instructions and procedures;

•  assists in the provision of on-the-job training;

•  works under general supervision either individually or in a team;

•  is responsible for assuring the quality of their own work; and

•  performs those tasks customarily performed by cleaners.

A Level 2 may be required to perform any duties of a Level 1 and, in addition, performs any of the following indicative tasks or a combination of such tasks:

•  ordering and distribution of toilet and other requisites and cleaning materials;

•  customer or public relations duties as required;

•  cleaning of communication rooms as required;

•  operating steam cleaning and pressure washing equipment on the exterior of buildings;

•  cleaning windows on the exterior of multi-storied buildings by any method including from swinging scaffolds, bosun’s chairs, hydraulic bucket trucks or similar devices;

•  deep cleaning of carpets by any of the following methods: hot water extraction; dry cleaning/bonnet system; dry foam or host system, excluding minor stain removal or spotting.

•  operating ride on powered sweeping machines, ride on vacuums, ride on polishers and ride on scrubbers;

•  ordering supplies and receiving deliveries of chemicals and cleaning supplies;

•  stripping and sealing, hard floor maintenance; and

•  provide specialist cleaning within a hospital setting, including a clinical ward”

(My underline)

[8] The wording underlined above in Cleaner Level 2 is the wording subject to the interpretation dispute which the parties require the Commission to arbitrate. In essence, the question to be answered is whether the wording:

•  requires an employee to (after 12 months service), be capable of performing Level 1 work and in addition perform at least one of the indicative tasks listed in Level 2.

and if so

•  whether employees are performing customer or public relations duties as required which is listed as an indicative task in Level 2.

Submissions and evidence

United Voice

[9] The Agreement at clause 5 - Coverage of this Agreement states that it applies to all persons who perform work in, or in connection with, the employer’s contract with the Department of Defence for the provision of Estate Management & Operations Services where this work is performed. The Union application 4 refers to Spotless as having a cleaning contract at four Defence bases commencing 1 November 2015, those being:

•  Wagga Wagga RAAF,

•  Kapooka ARTC,

•  HMAS Creswell and

•  HMAS Albatross.

[10] It was submitted that Spotless maintain most cleaners at the Level 1 classification and that “All United Voice members are capable of performing work at level 2”. 5 It was submitted that Spotless was in breach of the Agreement by not classifying employees capable of performing Level 2 work at the Level 2 classification.

[11] It was contended and was not in dispute that in lieu of the Agreement the Cleaning Services Award 2010 would apply, which has a similar classification structure. It was put that in the negotiations for the Agreement (which included the NUW) it was expected that on the anniversary of approval of the Agreement, Level 1 Cleaners who had been employed at Defence bases for the full year would be automatically reclassified to Level 2. This was the result of “union members seeking a better career path with better pay”. 6

[12] This submission is said to be confirmed by the wording of the Agreement’s Level 2 definition where is states:

“This level shall apply to an employee who has completed 12 months service at level 1and is capable of performing work within the scope of this level.”

[13] It was put that one reason for this is that new cleaners would not be paid the same as cleaners who had worked at the Defence bases for 12 months and longer, but the lesser Level 1 rate.

[14] United Voice concede that the Cleaner Level 2 descriptor in addition to having worked for 12 months at the Level 1 classification, and being capable of performing Level 2 work, requires an employee to also perform at least one of the indicative tasks as listed. 7

“‘A Level 2 may be required to perform any duties of a Level 1 and, in addition, performs any of the following indicative tasks or a combination of such tasks”

[15] It was submitted that while there is no ambiguity in the text of the Agreement nevertheless the Commission should consider the “ambition of the Unions in the bargaining for the Agreement” 8 to build a career path for employees after 12 months service at the Level 1 classification and being capable of performing Level 2 work.

[16] One of the 10 indicative tasks listed in the Level 2 definition includes “customer or public relations duties as required” which the Union submitted was carried out by cleaners because they deal with residents of the facilities as part of their daily work schedule. In dealing with the facilities’ residents, cleaners perform “customer or public relations duties as required”.

[17] It was put that the expectation of Spotless for cleaners to interact with the client in a courteous and professional manner equated to performing a customer relation role.

[18] Mr Ricky Keehn, a United Voice Organiser, gave evidence in support of the application stating that he had participated in the Agreement negotiation and that Union members were told that they would be on Level 2, 12 months from the start of the Agreement.

[19] A number of cleaners also gave evidence. Ms Sharon Ray a cleaner employed at HMAS Creswell and Union delegate for United Voice recalled that the Union asked for automatic progression from Level 1 to Level 2 after 12 months’ service. 9 Ms Ray’s evidence was that she had regular contact with the ‘customer’s people’ and responded to their requests.

[20] Ms Anne O’Shannassy who works at the Latchford Army Base Wodonga and is a Union delegate gave evidence by telephone. Ms O’Shannassy’s witness statement was similar in some aspects to the witness statement of Ms Ray. Ms O’Shannassy in cross examination stated that any requests from Defence were reported to her supervisor.

[21] Ms Jill Lok who is employed at the North Bandianna Army Base Wodonga also gave evidence by telephone. Ms Lok’s evidence was that in August 2017 she was promoted to Level 2 under the Agreement having been given an automatic mopping machine. 10 Ms Lok attached to her witness statement a copy of the discussion points for a July 2019 Toolbox Talk which stated “Customer service means keeping the customer in the loop”.

[22] The Union seeks a declaration confirming its interpretation of the disputed wording.

Spotless

[23] Spotless confirmed that as of 1 November 2015 it entered into a services contract with the Department of Defence for the provision of non-essential services (other than hospitality services) including cleaning services at various Defence bases in southern New South Wales, the Australian Capital Territory and northern Victoria.

[24] The employer’s submission was that upon a proper reading of Schedule A an employee can only be classified as a Cleaner Level 2 where they have:

•  completed 12 month’s service at Level 1;

•  are capable of performing Level 2 work; and

•  perform one or more indicative tasks listed in Level 2

[25] Spotless did not accept the contention that an employee need only be capable of carrying out Level 2 duties and have completed 12 month’s service to be classified as a Cleaner Level 2.

[26] It was put that the use of the phrase ‘performs any of the following indicative tasks or a combination of such tasks’ requires a degree of regular or ongoing work as opposed to carrying out a task on an occasional basis. This submission was said to be supported by clause 16.2 Higher Duties of the Agreement which provides that an employee engaged for more than two hours on duties carrying a higher minimum wage than the employee’s ordinary classification must be paid the higher minimum wage for the day, or where the work performed is for less than two hours, for the time so worked.

[27] Spotless submitted that there is no automatic right to progress from a Cleaner Level 1 to Level 2 based on having completed 12 months service. 11

[28] It was also put that a Cleaner Level 1 who deals with residents of the facilities as part of their daily work schedules is not performing customer or public relations duties as required. It was stated that ad hoc communication with a facility resident is not engaging in customer or public relations duties.

[29] Ms Janelle Damm a Cleaning Housekeeping, Laundry Dry Cleaning, Sports & Recreation Manager for Spotless gave evidence. Ms Damm stated that all Level 1 and 2 cleaners report to the Cleaning and House Keeping Supervisor or Periodical Supervisor for their site. Where Level 2 Cleaners are appointed they are required to carry out one of the indicative tasks listed in the Agreement definition in Schedule A.

[30] Ms Damm participated in the negotiations for the Agreement as a subject matter expert on cleaning staff and did not recall any discussion about the wording of the cleaning classification. 12

[31] Apart from being courteous and professional it was not expected that Level 1 cleaners engage with Defence Force personnel outside of basic incidental matters and Level 1 Cleaners are in fact discouraged from doing so. Whereas Level 2 cleaners are expected and required to carry out customer relations duties.  13

[32] Ms Damm’s evidence was that having observed cleaners at work on a regular basis she had not observed Level 1 cleaners performing Level 2 work. 14 Ms Damm accepted that the client relationship was important. Ms Damm further stated that the Toolbox talk document attached to Ms Lok’s witness statement other than the general statement of employees needing to be courteous in their contact with the customer, applied to employees at or above the level of Supervisor or Co-ordinator.

[33] Mr Wayne Walsh is the Estate Maintenance & Operations Service Operations Manager Wagga Bases (EMOS Contract). Ms Walsh’s evidence was that Level 1 cleaners under the Agreement are not required to perform customer or public relations duties. 15 Mr Walsh expressed that the EMOS Contract was a day cleaning operation and it is common for cleaners to engage with members of the Defence Force which may include greeting a person and requesting permission to start cleaning in an occupied area. Mr Walsh did not expect or require cleaners to take instructions from the customer in relation to their work. Defence Force requests are normally directed to leading hands or supervisors on site.

[34] If a request from a Defence Force employee was made to a Cleaner Level 1, Mr Walsh stated that he would expect the employee to be polite and pass on the request to the appropriate Spotless employee.

Interpretation of industrial agreements

[35] The Full Bench decision of Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited 16 (Golden Cockerel) traversed the approach to be taken in interpreting enterprise agreements and stated that the general approach to the construction of enterprise agreements was as explained in the judgment of French J, as he then was, in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) (City of Wanneroo).

[36] In City of Wanneroo French J, observed: 17

“The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘...the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘....ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).” 18

[37] The Full Bench in Golden Cockerel then drew on other authorities to expand on the approach to be taken at paragraphs 20 to 22 of their decision including the decision in Kucks v CSR Limited 19 (Kucks).

[38] In Kucks, a matter relating to the interpretation of an industrial award, Madgwick J held that that a narrow pedantic approach to interpretation of awards should be avoided and meanings which avoid inconvenience or injustice may reasonably be strained for:

“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. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award mean is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.” 20

[39] In 2017 a Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturers Workers Union (AMWU) v Berri Pty Ltd 21 made the following observations in relation to interpreting enterprise agreements:

“[41] The construction of an enterprise agreement, like that of a statute or a contract, begins with a consideration of the ordinary meaning of the relevant words. The disputed words must be construed in the context of the agreement as a whole. The process of interpretative analysis focusses upon the language of the agreement itself. In Amcor Limited v CFMEU, 22 Gleeson CJ and McHugh J described the process in the following terms: ‘[t]he resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose ...’.23 Or, as Kirby J put it in the same case, ‘[i]nterpretation is always a text-based activity’.24

[40] Later on in their decision at paragraph [114] the Full Bench determined that the summary of principles relevant to the task of construing an enterprise agreement summarised in Golden Cockerel should be modified as follows:

“The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

i. the text of the agreement viewed as a whole;

ii. the disputed provision’s place and arrangement in the agreement;

iii. the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”

Conclusion

[41] Based on the above, the interpretation of an industrial agreement begins with a consideration of the natural and ordinary meaning of the words in question. The words are to be read as a whole and in context. Ambiguity and uncertainty, if any, may be resolved by a consideration of the history and subject matter of an agreement.

[42] Despite the parties’ different interpretations, both parties submitted that the words of the Agreement under dispute are clear and unambiguous. Where the words are plain and unambiguous the parties must accept the meaning ascribed, unless an absurd outcome is the result. 25 I accept as put by the parties that the wording of the Agreement subject to the dispute is not ambiguous and that a plain reading of the wording will produce its meaning.

[43] As the Agreement has a plain meaning, evidence of the surrounding circumstances cannot be considered to contradict the otherwise plain language of the Agreement. It is therefore not possible based on the above authorities to have regard to, as United Voice submits, the ‘ambition of the Unions’ which also includes the NUW in bargaining for the Agreement to provide a career path for their members.

[44] It is inescapable on the wording of the Agreement that to be classified at the Cleaner Level 2 classification, a Level 1 Cleaner must in addition to having the required 12 months service, and being capable of performing work within the scope of Level 2, perform one of the listed indicative tasks at Level 2. There is not an automatic transition to a Level 2 classification based on an employee’s length of service and capability to perform work within the Level 2 definition. An employee must also be performing one of or a combination of the listed indicative tasks at Level 2.

[45] That being said, United Voice submits that Cleaners Level 1 under the Agreement are performing the work of at least one indicative task being ‘customer or public relations duties as required’. This is based on the interactions that Cleaners Level 1 have at the various Defence bases with Defence Force personnel and the requirement from Spotless for employees to act in a professional manner. 26

[46] I accept that there will be occasions where Cleaners Level 1 will be required to converse with Defence Force personnel, particularly where they need to clean in an occupied area or respond to anything that may be said to them by Defence Force personnel.

[47] I have had particular regard to the evidence of Ms Ray, and Ms O’Shannassy, and their description of the interaction and contact they may have with Defence Force personnel while performing their cleaning duties. Their evidence was that they were performing their cleaning duties in a professional manner as required; it did not in my view extend to or equate to performing ‘customer relations duties’.

[48] In this respect the employer’s position was clear; Level 1 employees are to be polite and courteous in their interactions and pass on any request outside their basic tasks. This in my view does not equate to performing the indicative task of ‘customer relations duties as required’. There would be very few, if any, jobs where a requirement to be polite and courteous to the client would not exist (as opposed to being rude or mute); this is not the same as performing customer relations duties.

[49] Ms Damm described what may be expected and required of a Cleaner Level 2 when carrying out customer relations duties. 27 This level of customer relations was not being undertaken by Ms Ray or Ms O’Shannassy.

[50] I am as such not satisfied that the proposition that cleaners under the Agreement are performing customer relations while classified at Level 1 has been made out by the evidence. If the reference to ‘public relations’ in the definition of indicative tasks relates to relations with members of the public, there was not surprisingly for Defence Force bases, any evidence of any interaction with members of the public.

[51] For the reasons provided above, I do not consider the interpretation of the disputed wording provides the outcome claimed by the Union.

[52] The application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Mr J Davis Industrial Officerfor United Voice

Mr S Meehan of Counsel and Ms Alannah Hogan Solicitor for the Respondent

Hearing details:

2019:

Sydney

August 28

Printed by authority of the Commonwealth Government Printer

<PR713435>

 1   Noting that the abbreviation Pty Ltd is not attached to the name as contained in the Agreement

 2 S.596(2)(a) of the Fair Work Act 2009

 3   [2016] FWCA 9261

 4   Form F10

 5 F10 at 2.1

 6   Union written submission of 15 July 2019 at [9-10]

 7   Union written submission of 15 July 2019 at [15]

 8   Union written submission of 15 July 2019 at [20]

 9   Witness statement at [7] Exhibit A1

 10   A Level 2 indicative task

 11   Initial written response of 9 October 2018

 12   Witness statement of 13 August Exhibit R2 at [17-18]

 13   Ibid at [26-29]

 14   Ibid at [33]

 15   Witness statement of 12 August 2019 Exhibit R3 at [17]

 16  [2014] FWCFB 7447

 17 (2006) 153 IR 426

 18   Ibid at 438

 19 (1996) 66 IR 182

 20   Ibid at 184

 21   [2017] FWCFB 3005

 22 (2005) 222 CLR 241

 23   Ibid at 246

 24   Ibid at 262

 25   Grey v Pearson (1857) 6 HLC 61 at 106 in respect of a statute

 26   Written submissions of 15 July 2019 at [22]

 27   Witness Statement of 13 August at [29]