Fair Work Act 2009

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

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

[1] The Health Services Union (Applicant, the union, HSU) has made an application, under section 318(1) of the Fair Work Act 2009 (the Act), for orders relating to an instrument covering a new employer and the transferring employees.

[2] Following a public tender process, South West Healthcare (SWH) made a decision to change pathology service contractors from its then current service provider Clinical Laboratories Pty Ltd trading as Healthscope Pathology (Healthscope) to Specialist Diagnostic Services Pty Ltd trading as Dorevitch Pathology (Dorevitch). On 1 July 2015, Dorevitch (the new employer) replaced Healthscope (the old employer) as the pathology service provider in SWH's laboratories at the Warrnambool and Camperdown Hospitals.

[3] The transferring employees (medical scientists and laboratory technicians) were covered by the Healthscope Pathology - Victoria Medical - Scientists and Technicians - Enterprise Agreement 2014 to 2017 (Healthscope Agreement), being an enterprise agreement approved by a decision[1] of the Fair Work Commission (FWC) on 24 October 2014.

[4] Dorevitch opposed the granting of the orders sought by the HSU.

[5] A hearing was held on 19 and 20 February 2018. The HSU were represented by Ms S Bingham of Counsel and Dorevitch by Mr J Forbes of Counsel.

[6] Section 311(1) of the Act contains the definition of transfer of business:

Meanings of transfer of business, old employer, new employer and transferring work

(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:

(a) the employment of an employee of the old employer has terminated;

(b) within 3 months after the termination, the employee becomes employed by the new employer;

(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;

(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).

(2) An employee in relation to whom the requirements in paragraphs (1)(a), (b) and (c) are satisfied is a transferring employee in relation to the transfer of business.

Transfer of assets from old employer to new employer

(3) There is a connection between the old employer and the new employer if, in accordance with an arrangement between:

(a) the old employer or an associated entity of the old employer; and

(b) the new employer or an associated entity of the new employer;

the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):

(c) that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and

(d) that relate to, or are used in connection with, the transferring work.

(4) There is a connection between the old employer and the new employer if the transferring work is performed by one or more transferring employees, as employees of the new employer, because the old employer, or an associated entity of the old employer, has outsourced the transferring work to the new employer or an associated entity of the new employer.

New employer ceases to outsource work to old employer

(5) There is a connection between the old employer and the new employer if:

(a) the transferring work had been performed by one or more transferring employees, as employees of the old employer, because the new employer, or an associated entity of the new employer, had outsourced the transferring work to the old employer or an associated entity of the old employer; and

(b) the transferring work is performed by those transferring employees, as employees of the new employer, because the new employer, or the associated entity of the new employer, has ceased to outsource the work to the old employer or the associated entity of the old employer.

New employer is associated entity of old employer

(6) There is a connection between the old employer and the new employer if the new employer is an associated entity of the old employer when the transferring employee becomes employed by the new employer."

[7] Two orders were sought from the Commission by the HSU. The first order was that the Healthscope Agreement cover the employment of medical scientists and laboratory technicians who had been employed by Healthscope in the pathology laboratories at Warrnambool Hospital and Camperdown Hospital until 30 June 2015 and who commenced employment with Dorevitch on 1 July 2015.[2] The second order was that the Healthscope Agreement would apply to new employees of Dorevitch who perform work in the pathology laboratories at the Warrnambool and Camperdown Hospitals.[3]

[8] The first matter to be determined is whether or not there has been a transfer of business. There was no dispute between the parties in relation to the facts concerning section 311(a), (b) and (c). The key issue in dispute between the parties was in relation to section 311(d). That is, whether or not there was a connection between Healthscope (old employer) and Dorevitch (new employer), in the form of an arrangement as described in sub section (3) of section 311.

Section 311(d)

[9] Evidence was given in relation to section 311(d) by Mr Paul Elliott, Branch Secretary, Health Services Union. On behalf of the Respondent, evidence was given by Mr Domenic Persano, Regional Business Manager and Ms Rebecca Sekic (nee Bracko), Human Resources Officer for Victoria.

[10] It is noted that both parties filed written objections to the witness statements of the other party.[4] As was indicated during the hearing,[5] the Commission will take the usual approach and give the evidence the appropriate weight, taking into account the objections of each party.

[11] Mr Elliott provided a number of witness statements[6] and also gave evidence. Mr Elliott's oral and written evidence was as follows:

• There is a lot of competition between certain pathology companies for contracted out public sector pathology services.[7]

• He understood that there was no financial arrangement between Dorevitch and Healthscope in relation to the South West Healthcare contract.[8]

• It was accepted that Dorevitch did not purchase any goodwill from Healthscope.[9]

• There was no purchase of the premises in which Dorevitch provided its services to South West Healthcare.[10]

• Dorevitch has a commercial lease with South West Healthcare in relation to the two laboratories.[11]

• Healthscope employees were always going to be offered employment by Dorevitch. This was because the tender specifications made it clear that South West Healthcare preferred that staff be offered ongoing employment by Dorevitch. Mr Elliott also stated that Dorevitch had no choice but to employ the Healthscope employees if it had any chance of commencing the contract on 1 July 2015. This was because there was only three weeks between the awarding of the contract and its commencement. Mr Elliott indicated that he did not have evidence that any employee was told that they were guaranteed employment was Dorevitch.[12]

• There was no written guarantee of employment given to the Healthscope employees. Mr Elliott explained, however, that he was advised by South West Healthcare, in the lead up to the changeover, that South West Healthcare had made it clear that they expected job offers to be made to existing staff. As well, Mr Elliott said that it was his understanding that, when Dorevitch met with Healthscope staff before the changeover, Dorevitch had advised that job offers would be made to them.[13]

• He confirmed that some employees expressed an interest in working for Dorevitch but that two employees did not (and remained with Healthscope) and that it was their choice.[14]

• He confirmed that each employee received an employment offer from Dorevitch; that there was a probationary period; that the employees' prior service was not recognised by Dorevitch and that the employees had to undergo a police check.[15]

• He was aware of the arrangement that was necessary to ensure that there was a seamless transition from Healthscope to Dorevitch as required by the Request for Tender. Mr Elliott stated that there needed to be an arrangement to ensure that there was no disruption to testing so as to not place any patient at risk.[16] A high level of cooperation was therefore said to be required, between Healthscope and Dorevitch, to ensure a seamless transition.[17]

• The evidence of an arrangement was the testing that was performed after midnight on 30 June 2015 with Dorevitch having taken over at midnight.[18]

• He has been informed that at least one Healthscope scientist was working in the laboratory on night shift that night on Healthscope equipment and that that person became an employee of Dorevitch at midnight.[19]

• The tables (Healthscope testing data), attached to his witness statement of 14 February 2018,[20] indicated that 499 tests were performed on Healthscope's equipment including some at Warrnambool.[21]

• Mr Elliott stated that the Healthscope testing data[22] showed the tests that were performed on 1 July 2015 by Healthscope, on Healthscope equipment, in a number of different laboratories during the time of the Dorevitch contract. These included 39 tests which were requested on 1 July 2015, and which were tested in the Warrnambool laboratory by Healthscope.[23]

• It was accepted that, for the vast majority of the tests in the Healthscope testing data, the specimen collection date was prior to midnight on 30 June 2015 and that the specimens had been collected by Healthscope.[24]

• Some of the specimens collected prior to midnight on 30 June 2015 were tested in Warrnambool on 1 July 2015 on a Healthscope machine.[25]

• Dorevitch scientists tested the specimens using Healthscope equipment on a machine that Healthscope had left behind for the purpose of conducting the tests.[26]

• Healthscope had left that machine behind as the result of an arrangement because continuity was required in a transfer such as the one between Healthscope and Dorevitch. Mr Elliott stated that it was not possible to set up an entire laboratory and be able to click the switch at midnight on 30 June 2015. Therefore, the equipment had to stay in place to continue the testing to ensure continuity in the delivery of a pathology service.[27]

• There was no other option but for Mr Persano to have used Healthscope equipment to finalise those tests. This was because it was not an option to have discarded those samples and taken new ones as it could have potentially compromised patient safety.[28]

• He did not doubt Mr Persano's evidence that Healthscope received the financial benefit from performing Dorevitch's work.[29]

• He contested Mr Persano's statement that it was his decision alone to use the Healthscope equipment. Rather, Mr Elliott relied on the advice given to the union by the scientists who were working in the laboratory that night. The advice was said to be that, ahead of the changeover, Healthscope management had said to them that Healthscope was going to fully cooperate in the changeover including use of Healthscope's equipment if required.[30]

• Both companies were said to have been aware that Healthscope equipment might be used. Mr Elliott stated that, on 1 July and 2015, Healthscope management were aware that its equipment would be used to perform Dorevitch work and agreed that that was okay. Mr Elliott indicated that the scientists had checked with Healthscope management.[31]

• It was acknowledged that, from midnight on 1 July 2015, Healthscope did not employ anyone and was not capable of issuing instructions to their former employees.[32]

• With respect to the Healthscope specimen bottles that were used for blood cultures, Mr Elliott was not able to say that this was because staff on the wards had used the bottles and sent them to the laboratory.[33]

• Early on 1 July 2015, a Dorevitch instrument had problems in its start-up and commissioning and so was inoperative.[34]

• He believed that, by the end of 1 July 2015, Healthscope had moved all of its equipment. Mr Elliott did not think that Dorevitch had continued to use Healthscope equipment beyond the 400 or so tests in the Healthscope testing data document.[35]

• The tests in the Healthscope testing data document were Dorevitch contract work which was performed by Healthscope on Healthscope equipment in a number of different laboratories including Warrnambool.[36] This included samples that had been collected before midnight by Healthscope.[37]

• A significant number of these tests were on samples collected prior to midnight on 30 June 2015.[38]

• 39 of the tests were collected after midnight on 30 June 2015.[39]

• The only tests that could have been conducted by Dorevitch were the ones that were conducted at Warrnambool.[40]

• He contended that the work for the specimens collected prior to 30 June 2015, which was commenced by Healthscope, was ultimately work (from midnight on 30 June 2015) under the Dorevitch contract. Although it started under the old contract, it was work of the new contract once the new contract had started.[41]

• He did not accept that what was collected prior to 30 June 2015 was the property of Healthscope. This was because he thought that, ultimately, the specimens belonged to the Hospital.[42]

• The members who sent the two emails to the union (their names were redacted) attached to his witness statement of 24 October 2017,[43] and the other members, feared retribution from management if their identities were known. Mr Elliott stated that no threat of been made to them as their identity was not known by the company.[44]

• The first of these emails, dated 12 October 2017, stated that Dorevitch had installed its particular (and different to Dorevitch's) instrument for blood cultures, prior to 30 June 2015, and that the supplier had advised that relocating the instrument once installed and 'live' would be problematic. Up to, and including on 30 June 2015, blood cultures were collected and put in the Healthscope machine. It was Healthscope's intention that that machine would remain in Warrnambool until all of the existing blood cultures were finalised. This decision was reversed by more senior Healthscope management sometime on 1 July 2015. On the morning of 1 July 2015, the scientist reported the results via the Healthscope IT network despite being a Dorevitch employee. This was said to include phoning Healthscope in Clayton and dictating results over the phone. When the blood culture instrument was to be moved, as a Dorevitch employee, she shut it down and prepared it for transport including the existing bottles. For a number of weeks following the changeover, the laboratory continued to receive Healthscope blood culture bottles from the wards which had to be processed manually.[45]

• In the second email, dated 24 October 2017, the scientist stated that, when the shift started at 11.30pm on 30 June 2015, there were effectively two pathology laboratories in operation at the one site. The relocation of the Haematology and Coagulation analysers went smoothly but the Biochemistry analyser (AU480) was having problems. As at midnight, the AU480 was still not able to run patient samples and the other biochemistry analyser could only run certain tests. Around 1.00am, it was decided that no more could be done to the AU480 so Mr Persano told herself and another scientist to use Healthscope's biochemistry analyser to get the results out overnight. So, all requests slips were then split between the two companies for the majority of that shift with general biochemistry going to Healthscope and the other tests going to Dorevitch. Later, when a CSF sample arrived, this had to be processed under Healthscope as the other scientist was not trained in Microbiology and therefore could not test that sample. Around 7.00am, the Healthscope team arrived to begin the final pack up and one of the first things they packed up was the water filtration system which the AU480 was connected to be because the Dorevitch team had thought that the water system would have been one of the last things that Healthscope removed, not the first. This resulted in another issue with the AU480 which was still not working when the scientists came back to work later that day for the next night shift. Also, the scientist stated that there were still two fridges that were left over/forgotten by Healthscope which were currently being used by Dorevitch.[46]

• On 11 June 2015, Healthscope wrote to the union and advised that, shortly after 10 June 2015, Dorevitch had requested permission to meet with Healthscope staff about potential employment with Dorevitch. The union was advised that Healthscope would facilitate these meetings.[47]

• The union was contacted around 15 June 2015 by members employed by Healthscope who advised that, at a meeting around 15 June 2015, the CEO of Dorevitch spoke to staff about the new employment arrangements for staff who transferred.[48]

• The Dorevitch Agreement was compared to the Healthscope Agreement in detail. Mr Elliott stated that the combined reductions in the base weekly rate and allowances, under the Dorevitch Agreement, resulted in a 20% - 25% reduction in the weekly salary of a Grade 1 Year 7 scientist.[49]

• The value of the staff who transferred to Dorevitch is very significant due to their high levels of experience and is specialist pathology knowledge, skill and training.[50]

[12] Ms Sekic filed a witness statement[51] and gave evidence that:

• She was not familiar with the Request for Tender document.[52]

• She was very familiar with the employee's side of the tender.[53]

• She worked very closely with Mr Persano who passed the information to her. She was not working and looking at the tender document on her own.[54]

• She had limited involvement in preparing the tender.[55]

• She could not recall being told by Mr Persano that there were special conditions in the Request for Tender document or a requirement for a transition plan or a special condition that SWH supported the retention of existing employees.[56]

• She was not involved in the "staffing" part of the transmission plan nor was across anything in terms of the transmission.[57]

• Her involvement was in the appointment of new staff and issuing contracts.[58]

• It was Dorevitch's intention to offer employment to all Healthscope staff if they were interested.[59]

• She had absolutely no discussions with anyone in management from Healthscope.[60]

• She organised the discussions regarding employment/recruitment and Healthscope and Mr Moller.[61] She had organised the times for staff to meet with Mr Persano and herself if they were interested.[62]

• She attended a meeting at the SWH's laboratories with Mr Moller and Mr Persano. Mr Persano had organised the meeting. She did not have discussions with anyone at the laboratories to organise entry.[63]

• She arranged the timetable for the interviews and forwarded it to Mr Persano.[64]

• She was not sure that the employment of Healthscope staff would provide a seamless transition between services.[65]

• She could not recall Mr Persano telling her anything about the requirements of the contract regarding personnel, their training and committee participation.[66]

• She was not aware of training by Dorevitch for the new employees on SWH policies and procedures. Ms Sekic was not sure that that was because the scientists had been there for a long time.[67]

• She was not familiar with any of the scientific training or changeover implementation procedures as this was not her area.[68]

• She accepted that Dorevitch inherited a fully trained, professional medical scientist workforce from Healthscope.[69]

• Having that experience and continuity of personnel was valuable to Dorevitch.[70]

• She was not able to answer competently as to whether the work the scientists were performing was the same work they had performed under the Healthscope contract.[71]

• It was accepted that the majority of scientists felt that work and pay was better than no work at all.[72]

• Dorevitch's pay system is able to facilitate different rates of pay under different agreements. There are different agreements currently applying throughout Dorevitch.[73]

• In Victoria, the payroll system currently deals with the Public Sector Agreement and the Gippsland Pathology Agreements.[74]

• To add the Healthscope Agreement would be a complicated exercise. This was because it is difficult for the payroll officers to manage and it is not something that needs to be done unless it cannot be avoided.[75]

• Dorevitch does have employees on different pay rates working side-by-side.[76]

• When an employee moves to a laboratory with lower rates of pay, the employee is paid the lower rate.[77]

• Dorevitch is obliged to pay certain rates due to a transmission of business. Where there is no obligation to pay at the higher rate, Dorevitch does not do so. This creates unfairness as a result of Dorevitch's obligations.[78]

[13] Mr Persano provided two witness statements[79] and also gave oral evidence that:

• A team of people comprising the CEO, himself and the Western Regional Manager arrived at the laboratory around 6am on 1 July 2015.[80]

• The team had finished up the previous night at 1am (1 July 2015).[81]

• The Healthscope testing data document showed the tests performed by the laboratory and it contained internal codes used by Healthscope.[82]

• The Healthscope document showed that there was an overlap period when specimens were collected prior to the handover of the contract but the tests were performed after Dorevitch had taken over.[83]

• He became familiar with the Request for Tender document and would have had discussions with Ms Bracko around the staffing requirements in the Request for Tender document.[84]

• He accepted that one of the special conditions in the Request for Tender was that SWH supported the retention of existing pathology service staff. He could not remember the exact conversations but he would have discussed with Ms Bracko looking at what staff were available in the community because those staff were already working in that facility or vicinity.[85]

• In employing employees of the previous pathology service provider, it was still a new set of staff which resulted in the requirement for a significant amount of training. This was because Dorevitch's policies and procedures were completely different to any of the other pathology service providers.[86]

• Having a ready-made workforce that was familiar with the hospital's policies and procedures did not necessarily make life substantially easier. This was because it was a very small component of being the day-to-day work of a scientist.[87]

• He confirmed that Dorevitch had an agreement with SWH that there would be an agreed level of service provided from the moment it took over from Healthscope. Mr Persano stated that Dorevitch always wanted, and aimed for, a seamless transition.[88]

• It was complex but a seamless transition with patients having tests performed and Dorevitch releasing the results.[89]

• In the half a dozen transitions that he has managed in the last 5 or 6 years, Dorevitch has not used the equipment of any incumbent. However, in this instance, Dorevitch used Healthscope equipment to release 9 test results for four patients.[90] These were tests that were collected post 1 July 2015.[91]

• The South West Healthcare Transitioning Out Plan[92] was prepared by Dorevitch and it was a transitioning out plan at the end of the contract (2020).[93]

• With respect to the South West Healthcare Implementation Plan,[94] Mr Persano confirmed that he had spoken to Healthscope regarding permission to talk to staff prior to Healthscope's contract ending. It was stated that Healthscope allowed Dorevitch to have a chat to their staff over a lunch time.[95]

• The Implementation Plan was a generic document so there may not have been any impact statements at the time. Dorevitch did not consult with the union as the employees concerned were not their staff.[96]

• The Implementation Plan was presented to South West Healthcare and it was acknowledged that it said that Dorevitch was going to consult with the union from 22 June 2015 to 26 June 2015.[97] Dorevitch did not take any steps to consult with the union.[98]

• He was unaware of the conversations that Mr Elliott had with Mr Moller.[99]

• He could not remember the exact detail but Dorevitch did not employ a full complement of medical scientists and technicians from Healthscope. Mr Persano stated that there were a number of positions that were not filled at the time. He could not recall as to how long it took to fill the vacant positions but said that Warrnambool was one of those locations where it was not too difficult to recruit. This was because there are several laboratories in the area.[100]

• Dorevitch did not reject any Healthscope employees and employment was offered to all of them. It was Mr Persano's understanding that Healthscope did not offer redundancies to a number of employees (2).[101]

• Scenarios of whether employees of the current contractor wished to be employed by Dorevitch were not built into the plans. This was because Dorevitch did know if the employees wanted to come across.[102]

• To meet Service Specification part 5A of the Request for Tender, in relation to scientists, Dorevitch identified the Healthscope personnel that it needed to provide the service.[103]

• The work the scientists performed for Dorevitch was the same work as they had performed for Healthscope but on different machines. Mr Persano agreed that a scientist's skill, for example, in data interpretation and the incubation of particular samples, was developed over the years. The scientists who were inherited from Healthscope had been working for lots of years. However, like any new employee, there was a significant amount of training undertaken in relation to Dorevitch's different quality system, instrumentation, procedures, the way data is interpreted etc. Depending on which scientists they were, 60 days' worth of training was not quite the whole training for the whole entire process.[104]

• There were a significant number of Dorevitch pathology scientists on site who assisted the inherited staff. It was stated that Dorevitch doubled up every shift for quite some time and there was a lot of support from Dorevitch's scientists as well as senior scientists.[105]

• The benches, sinks and fittings and fixtures normally in a laboratory were there when Dorevitch took over. It was stated that they are part of the Hospital's fit out and so were owned by the Hospital. Mr Persano thought that Healthscope largely would have used the fit out as well.[106] Dorevitch pays rent for the laboratory spaces to South West Healthcare.[107]

• Dorevitch started moving equipment into the Hospital, but not the laboratory, from about 18 June 2015. Dorevitch was involved in the commissioning and calibrating of this equipment.[108] Dorevitch did not purchase any equipment from Healthscope as Healthscope uses different equipment to Dorevitch.[109]

• At the Camperdown laboratory, Healthscope decommissioned their instruments in the middle of the day on 30 June 2015 and shut up shop in the early afternoon.[110]

• In Warrnambool, Healthscope continued to operate through to midnight on 30 June 2015 and began removing its equipment on 30 June 2015 to make some space for Dorevitch's instrumentation. There were some Healthscope instruments at midnight that were still operational and were still able to be used on site. Healthscope had removed half of their equipment and Dorevitch, essentially, had moved in half of Dorevitch's equipment.[111]

• The one Healthscope employee on night shift commenced at 11pm on 30 June 2015 as a Healthscope employee. At midnight, the employee switched across to being a Dorevitch employee.[112] A Dorevitch scientist from the Ararat laboratory came across and did the night shift with this employee.[113]

• There were a number of issues that night with the AU480 machine. The agreement between an outgoing and an incoming provider was said to be that the outgoing provider would provide some space and the incoming provider would move their equipment in. There was no discussion about using the outgoing provider's equipment. Mr Persano explained that there was no cooperation as the outgoing provider is Dorevitch's competitor and the way it normally worked was that they vacate the facilities and Dorevitch starts testing.[114]

• He confirmed that Healthscope did not vacate the laboratory at one minute past midnight on 1 July 2015. Mr Persano recalled that Healthscope still had half of their equipment in there and some of the equipment was still operational.[115] On 1 July 2015, Healthscope had arranged for a removalist which allowed Dorevitch to manoeuvre its remaining equipment into place.[116]

• He agreed that when Dorevitch's AU480 was unable to run samples, Dorevitch had the ability to use the Healthscope equipment which allowed Dorevitch to provide a result for the patient.[117]

• He confirmed that he instructed two Dorevitch employees (one was a former Healthscope employee) to use Healthscope's biochemistry analyser to get the test results out. In doing that, Mr Persano agreed that Dorevitch had contracted that work to Healthscope to ensure that Dorevitch met its contractual obligations.[118]

• He was not present at the time of the CSF test but said that he would have authorised it. This was because Dorevitch had to provide the services for the welfare of the patients and to meet Dorevitch's contractual obligations.[119]

• The tests that were done on samples taken prior to 1 July 2015 was not Dorevitch's work and Dorevitch had no contractual requirement to do that work. The contractual requirement was said to be that Dorevitch tested from 1 July 2015 and Mr Persano stated that that was done. Mr Persano also said that Healthscope was contractually bound in relation to the samples taken prior to 1 July 2015.[120]

• He explained that the options for Dorevitch, in relation to the samples taken prior to 1 July 2015, were to discard the samples or asked for re-collection. The latter option was said to be impractical.[121]

• Mr Persano stated that, normally Healthscope would have taken the incubator with the samples away but they did not do that until several days later.[122]

• No one from Dorevitch, including Mr Persano, had sought permission from Healthscope to use their equipment on 1 July 2015.[123] It was stated that there were no Healthscope staff at the laboratory after 7.00pm on 30 June 2015 to provide any consent to Dorevitch employees. Mr Persano said that he did not contact Healthscope in any way to gain consent and that no prior arrangement was in place for Dorevitch to use any Healthscope equipment.[124]

• There was no financial transaction between Dorevitch and Healthscope for use of Healthscope's equipment. Mr Persano stated that Healthscope did not charge Dorevitch for use of its equipment and Dorevitch did not charge Healthscope for use of Dorevitch labour.[125]

• With respect to the BACTEC bottles, Dorevitch had reviewed Healthscope's stores and consumables which were tiny cupboards around the Hospital. The samples were initially placed in those (Healthscope's) bottles which were then transferred into Dorevitch's consumables in the laboratory.[126]

• He was unsure of the provenance of the fridges and fixtures in the laboratories but thought that South West Healthcare would have purchased them initially. Mr Persano confirmed that Healthscope had used the fridges. He stated that Dorevitch had bought some new fridges and that, when Healthscope took away their equipment, they had left things behind that they were happy to throw out (fridges). Mr Persano indicated that Dorevitch had then used those fridges.[127]

• When the pathology services contract went from a private company to a private company, there was no purchase of equipment from the incumbent provider. Mr Persano stated that no payment was made to Healthscope for the couple of fridges they were happy to discard.[128]

• The market for the provision of pathology services is intensely competitive.[129]

• He did not entirely accept that the former Healthscope employees had suffered a substantial loss to their income by accepting employment was Dorevitch. This was because they received substantial redundancies and also kept their jobs (at reduced rates) and so were better off in some instances.[130] Mr Persano explained that if the Healthscope Agreement salaries were applied, the net labour cost would increase by about 10 - 15%.[131]

• Dorevitch was very clear about the rate of pay and conditions of employment that would apply to those Healthscope employees who accepted offers of employment from Dorevitch. Therefore, Mr Persano's view was that those who accepted employment did so on the terms and conditions offered.[132]

[14] On behalf of the HSU, Ms Bingham stated that the union was seeking orders that the Healthscope Agreement cover the employment of medical scientists and technicians who were employed at South West Healthcare laboratories up until 30 June 2015 by Healthscope and from 1 July 2015 by Dorevitch. The union was also seeking orders that the Healthscope Agreement would apply to new employees of Dorevitch who performed work in these laboratories in the Warrnambool and Camperdown Hospitals.[133]

[15] The union referred the Commission to the Object of Part 2 - 8 Transfer of Business in section 309 of the Act and then to section 311 which defines "transfer of business". The HSU contended that there had been a transfer of business within the meaning of section 311 of the Act. It was stated that, in this matter, the elements of section 311(1) (a) to (c) were made out on the facts and were not in dispute between the parties.[134]

[16] The controversy between the union and Dorevitch was said to be as to whether there is a connection between the old employer (Healthscope) and the new employer (Dorevitch) as described in sub sections (3) to (6) of section 311. The union stated that subsection (3) was the controversial subsection and submitted that there had been an arrangement as contemplated by subsection (3).

[17] There were four grounds for this submission. The first ground was that Dorevitch would have the beneficial use of South West Healthcare's laboratories (the same laboratories used by Healthscope when it provided pathology services to South West Healthcare).[135] Secondly, the union argued that there was an arrangement that Dorevitch would have access to Healthscope employees in order to recruit staff and offer them employment. This was based on Mr Elliott's evidence together with that of Mr Persano about access to employees and Mr Moller's statement to the press that all Healthscope employees would be offered employment.[136]

[18] The third basis for contending that there was an arrangement between Healthscope and Dorevitch was said to be that Dorevitch had an intangible beneficial use of the transferring employees' know-how of the operational requirements of South West Healthcare which was developed by Healthscope and which Healthscope also had the benefit of. Dorevitch was said to have had the intangible benefit of the ability to acquire a fully operational workforce to commit to a seamless transition. The Commission was referred to the Oxford Dictionary definition of "intangible" in this regard.[137]

[19] Finally, the fourth ground of the union's submission was that there was an "arrangement" that Dorevitch had the beneficial use of Healthscope's equipment on and after 1 July 2015. It was contended that Mr Persano's evidence had confirmed Mr Elliott's hearsay evidence that Dorevitch had used Healthscope equipment after Dorevitch took over the contract from Healthscope. The union stated that Dorevitch employees used Healthscope equipment and that, therefore, Dorevitch had beneficial use of that equipment to allow it to provide the service it was contracted to provide to South West Healthcare.[138]

[20] The union argued that 400 or so tests were performed by Healthscope on Healthscope equipment during the commencement of the contract by Dorevitch. Although the vast majority of the specimens for these tests were collected prior to midnight on 30 June 2015, the union stated that 13 tests, that were requested on 1 July 2015, were tested by Dorevitch scientists using Healthscope equipment. It was contended that Healthscope had left behind that piece of equipment for the purpose of conducting the tests to ensure continuity of a pathology service to the patients.[139]

[21] The Commission was referred to the definition of an "arrangement" as set out in the Fall Bench decision in John Lucas Hotel Management Services T/A World Square Pub v Hillie[140] (John Lucas Hotel). The union argued that Dorevitch had assumed a moral obligation through the recruitment of Healthscope employees and the use of the Healthscope equipment by those former Healthscope employees to process the patient samples on 1 July 2015 so as not to jeopardise patient welfare. It was stated that the moral obligation was not to Dorevitch's commercial advantage but to its reputational advantage as the new service provider.[141]

[22] The union contended that, as there was an arrangement between Healthscope and Dorevitch, the Healthscope Agreement is a transferable instrument in relation to section 312 of the Act. With respect to the requirements regarding section 313, it was stated that these had been met.[142] With respect to the new argument raised by Dorevitch regarding the first order sought by the union, it was acknowledged that Dorevitch had a strong point in relation to Order 1. However, the union contended that that did not preclude the Commission from making a decision in relation to Order 2 and particularly as to whether there is a transferable instrument as contemplated by sections 311 and 312.[143]

[23] However, the HSU continued to argue that section 318(1) sets out what orders can be made. It was contended that there must be an ability to make an order that an enterprise agreement covers the new employer or covers the new transferring employees by reason of the operation of subsection (b).[144] It was stated that the transferring employees have the ability to go to court in relation to underpayment claims. The union grumbled that the new employees (the non-transferring employees) do not have that ability until an order of the Commission is made pursuant to section 319.[145]

[24] In terms of the orders sought relating to the new employer and non-transferring employees, the Commission was referred to section 319(3) for the matters that the Commission must take into account. It was accepted that there was no evidence from the employees who had filled the two positions that were advertised. The views of the employees affected by the order were said to include the views of the other medical scientists and technicians (the majority of employees). Their views were said to include genuine concern that they had been unfairly forced to accept significantly reduced wages and conditions for doing the same work in the same workplace. Concerns were also expressed that they would be working side-by-side with new employees who were on lesser pay and conditions. This would result in disquiet and discontent in the workplace.[146]

[25] The union addressed the other elements that the Commission is required to take into account in its Outline of Submissions.[147]

[26] In their Submissions in Reply, the union argued that, as contemplated by the Explanatory Memorandum, there did not need to be anything formal in writing in relation to the broadness of what an arrangement is. The fact that the two parties acted in a certain manner (when Dorevitch's machine broke down/Healthscope's machine was operational/employees of Dorevitch used it to perform the tests /Dorevitch did not bill), the parties acted in a certain way which gave rise to this moral obligation (arrangement).[148]

[27] The union contended that there was a moral obligation between Dorevitch and Healthscope based on the manner in which they acted between each other, namely that Dorevitch used Healthscope's equipment and allowed Healthscope to bill for what was Dorevitch's work.[149] It was argued that Dorevitch had beneficial use of Healthscope's equipment which was intangible - to avoid messing up the contract within 10 minutes of taking it over.[150] In addition, it was stated that there was short-term beneficial use by Dorevitch as well as intangible beneficial use, together with the other elements including the employees being transferring employees.[151]

[28] It was submitted by the union that there has to have been an arrangement (made between Healthscope and Dorevitch) for it to be a seamless transition. The arrangement was said to not need to have been a prior or formal arrangement and that it can be an arrangement that evolves as a result of the changeover.[152] The union's view was that "act and then ask forgiveness" amounted to an arrangement.[153]

[29] With respect to Part 4 Special Conditions of the Request for Tender at 4.7.1, which required the transition to be "proactively managed by all parties to ensure a successful seamless transition ... ", this was said, by the union, to require the parties to do that. The evidence that this occurred was said to have been the use of the particular Healthscope machine by Dorevitch.[154]

[30] It was submitted on behalf of Dorevitch by Mr Forbes that there has not been a transfer of business and so the Commission should dismiss the application. In the alternative, if the Commission found that there had been a transfer of business, Dorevitch contended that Order One was beyond jurisdiction. This was on the basis that, if there has been a transmission of business, the Healthscope Agreement becomes a transferable instrument which transfers with the transferring employees.[155] Dorevitch relied on the Full Bench decision in McCallum v Tenix Solutions Pty Ltd[156] in support of the contention that Order One sought a bare declaration of legal rights which is judicial power only exercisable by the courts.[157]

[31] Order Two, in relation to non-transferring or new employees, was said to be the only question to be decided. It was stated that, under section 319(1)(b), the Commission has the power to make an order in respect to the non-transferring employees - but only if there has been a transfer of business.[158] The Respondent addressed the various factors that the Commission is required to take into account if the union got through the jurisdictional gate.[159]

[32] Dorevitch argued that the threshold issue was whether there has been a transfer of business and, in particular, whether there is an arrangement between Healthscope and Dorevitch. It was stated that the onus was on the Applicant to establish that.[160]

[33] In relation to what constitutes an arrangement, the Commission was referred to the John Lucas Hotel decision as the only Full Bench authority on the point.[161]

[34] With respect to the evidence provided by the Applicant, Dorevitch argued that Mr Elliott's witness statements were hearsay and that the Respondent had filed formal objections to Mr Elliott's evidence. It was acknowledged that the Commission is not bound by the rules of evidence but stated that they were not irrelevant. Dorevitch submitted that the Respondent's objections should be ruled on or Mr Elliott's evidence should be weighed taking into account the Respondent's objections.[162] As the Applicant's evidence was hearsay, opinion and speculation, it should be given little weight.[163] Rather, Dorevitch stated that the evidence of the witnesses who had direct knowledge of the circumstances of the transition should be preferred.[164]

[35] With respect to the question of whether or not there was an arrangement, the Commission was referred again to the John Lucas Hotel decision and also the decision in Zabrdac v Transclean Facilities Pty Ltd (Zabrdac).[165] In relation to the first element identified in Zabrdac, Dorevitch argued that there was no evidence of any communication between Healthscope and Dorevitch.[166] Mr Persano's evidence was highlighted in this regard - that there was no communication as they were arch competitors.[167]

[36] The union's argument that an arrangement might be very subtle was accepted. However, Dorevitch contended that there was a flaw in the union's argument that Dorevitch had assumed a moral obligation. This was because there must be a moral obligation to the other party i.e. Healthscope. Dorevitch submitted that it was not a moral obligation as a result of an arrangement with Healthscope. It was explained that the moral obligation was that Dorevitch was a responsible pathology provider and, as the new provider, wanted to be seen to be doing the right thing. It was stated, however, that it was not a moral obligation to Healthscope.[168] Dorevitch submitted that the statutory test was whether or not there is an arrangement between the two companies - Healthscope and Dorevitch - not whether there was an arrangement, for example, between Dorevitch and South West Healthcare.[169]

[37] It was argued that one company sending a list of employees to a proposed new employer was not evidence of an obligation on the new employer to employ those employees. Dorevitch contended that the Applicant needed to prove that there was an arrangement and that there was conduct in accordance with that arrangement.[170]

[38] With respect to the union's contention that there was beneficial use of Healthscope assets by Dorevitch, it was submitted that there was no suggestion that Dorevitch or Healthscope bought or sold anything between them.[171] In terms of the argument that Dorevitch's occupation of the laboratories was a beneficial use, Dorevitch stated that the evidence was that Dorevitch entered into a commercial lease arrangement with South West Healthcare or the owners of the laboratories which did not involve Healthscope.[172]

[39] With respect to the argument that Dorevitch had the beneficial use of the "know how" of the technicians employed by Healthscope who accepted employment was Dorevitch, Dorevitch relied on the High Court decision in the Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (Gribbles).[173] The evidence of Mr Persano was referred to with respect to there being no requirement by Dorevitch that the former Healthscope employees use any of their Healthscope knowledge in their new employment with Dorevitch. Mr Persano's evidence was also that any knowledge that employees had gained from using Healthscope equipment was of no value to Dorevitch as the equipment protocols for the two companies were different.[174] It was agreed that Dorevitch had enjoyed the benefit of the employees' knowledge which was said to be the intellectual property of the employees and not that of Healthscope.[175]

[40] In so far as there was beneficial use of Healthscope equipment and "know how" early on 1 July 2015, it was contended that this argument did not go anywhere as it was Mr Persano's decision to use the Healthscope equipment without asking Healthscope.[176] Dorevitch stated that the situation was one of two companies in transition and likened it to tenants moving in and out of a rental property and a fridge being left to be picked up the next day and the incoming tenant putting their beer temporarily in the fridge.[177]

[41] Dorevitch stated that there was no secret understanding or clever arrangement or moral obligation between Healthscope and Dorevitch. Rather, it was one party going, another one coming in and the parties then bumping into each other. When Dorevitch had just gone and used some of the Healthscope's equipment, it was explained that it was Healthscope who received the payments. Dorevitch provided its labour in order to discharge a moral obligation it thought was in the best interests of the patients but there was no arrangement or understanding and certainly not enough to satisfy the Commission that that arrangement constitutes a transfer of business. It was stated that there was no transfer of business in any way, shape or form.[178] The facts that, in Dorevitch's view, went against any finding that there might have been a transfer of business, were set out in the Respondent's Outline of Final Submissions.[179]

[42] In response to the union's Submissions in Reply, Dorevitch stated that, in relation to the issue of what happened in the early hours of 1 July 2015 and whether that was an arrangement, there was a disconnect between the arrangement on the one hand and the conduct in accordance with the arrangement on the other hand. It was stated that the language of the Act requires conduct in accordance with the arrangement. What the union was said to be doing was pointing to things that occurred but not to the arrangement which gave rise to the conduct. However, it was argued that there was no evidence of any arrangement presented by the union.[180]

[43] With respect to the moral obligation argument, Dorevitch asked as to when that was assumed? Had the two companies discussed prior to the transition how to deal with particular scenarios if they arose? Dorevitch submitted that there has to be an arrangement which then results in certain conduct. It was stated that the union was asking the Commission to infer an arrangement from what had occurred on the grounds that, because of what had occurred, there must have been some arrangement (assumption of a moral obligation or something else that authorised that conduct to occur).[181] On the basis of Mr Persano's evidence, it was argued that there was not an arrangement between the two companies.[182]

[44] In terms of the question as to whether the Commission should take into account the fact that there might have been a few hours of the use of Healthscope's equipment by Dorevitch, it was argued that the Commission's consideration must be framed by whether there has been a transfer of business. It was submitted that the matter of proportionality should be taken into account because, if the Commission found that there may have been some arrangement for a short period of time, it was not an arrangement in the context of there being a transfer of business. Dorevitch contended that use of a machine for a short period of time could not be evidence that a business has transferred as it would result in a ludicrous outcome. It was argued that the Commission should take into account the proportion of the conduct in assessing whether there has been a transfer of business.[183]

[45] Section 311(1) of the Act defines what a transfer of business is. It was common ground that the requirements of section 311(1)(a), (b) and (c) have been met. On the basis of the material before me, I am satisfied that these requirements have been met.

[46] As set out earlier, the contentious subsection of section 311(1) was section 311(1)(d) in relation to whether or not there was a connection between Healthscope and Dorevitch as described in subsections (3) - (6). Specifically, the issue in dispute was whether there was an arrangement between Healthscope and Dorevitch as described in subsection (3).

[47] Subsection (3) of section 311 provides as follows:

"(3) There is a connection between the old employer and the new employer if, in accordance with an arrangement between:

(a) the old employer or an associated entity of the old employer; and

(b) the new employer or an associated entity of the new employer;

the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):

(c) that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and

(d) that relate to, or are used in connection with, the transferring work."

[48] It was submitted by the HSU that there was an arrangement between Healthscope and Dorevitch. This was on the basis that Dorevitch would have the beneficial use of South West Healthcare's laboratories; that Dorevitch would have access to Healthscope employees to recruit staff and had an obligation to do so and that Dorevitch had the intangible beneficial use of the transferring employees' "know-how" which had been developed by Healthscope and beneficial use of a fully operational workforce to enable a seamless transition.

[49] Finally, the HSU argued that there was a moral obligation (arrangement) between Dorevitch and Healthscope which enabled Dorevitch to have beneficial use of Healthscope's equipment on 1 July 2015. The union submitted that there had to have been an arrangement made between Healthscope and Dorevitch for it to be a seamless transition between the two companies. This arrangement was said to not need to have been a prior or formal arrangement but one that could have evolved during the changeover.

[50] On the other hand, Dorevitch argued that there was no arrangement between Healthscope and Dorevitch and that there was no evidence of any such arrangement. It was contended that the statutory test was whether there was an arrangement which then resulted in certain conduct in accordance with the arrangement - and not the other way round. Dorevitch argued that the union was asking the Commission to infer an arrangement (a moral obligation) which had authorised the conduct to occur. Even if it was accepted that Dorevitch had adopted a moral obligation, it was argued that this was not a moral obligation to Healthscope but to the patients.

[51] In terms of the union's argument that Dorevitch has the beneficial use of the "know how" of the Healthscope employees, Dorevitch relied on the decision in Gribbles. Further, with respect to the union's submission that Dorevitch had beneficial use of Healthscope assets, it was contended that Dorevitch and Healthscope had not bought or sold anything between them.

[52] As was submitted by both parties, the Full Bench decision in John Lucas Hotel is the only Full Bench authority regarding the correct application of the word "arrangement" in section 311 of the Act. The approach taken by the Full Bench, together with its approval of the criteria for an arrangement set out in Zabrdac, will be adopted in this matter.

[53] Section 311(3) provides for a connection between the old and new employer, "if, in accordance with an arrangement between [them]" certain actions then occur. These actions are the new employer owning or having "beneficial use of some or all of the assets (whether tangible or intangible) ... ". In this matter, subsection (3) would seem to require there to be an arrangement between Healthscope and Dorevitch whereby Dorevitch owns or has the beneficial use of some or all of Healthscope's assets (tangible or intangible) which relate to or are used in connection with the transferring work in SWH's laboratories in the Warrnambool and Camperdown Hospitals.

[54] The Full Bench in John Lucas Hotel, in relation to that matter, asked the question "Did the transfer of assets (such as they were) between Wanslea Grove and the appellant occur in accordance with an "arrangement" between them?"[184]

[55] The way in which the Full Bench posed the question would seem to support the Respondent's submissions in relation to the statutory test in section 311(3). Their submissions were that that the statutory test was whether there was an arrangement which then resulted in certain conduct in accordance with the arrangement - and not the other way round. Applying the approach taken in John Lucas Hotel, there has to firstly be an arrangement between Healthscope and Dorevitch which resulted in the beneficial use (in this case) of some or all of the assets (intangible or tangible) that Healthscope owned or had beneficial use of in connection with the transferring work in SWH's laboratories in the Warrnambool and Camperdown Hospitals.

[56] Further, in the John Lucas Hotel decision, the Full Bench expressed the view that the word "arrangement" should be interpreted broadly and need not imply a formal agreement. Specifically, the Full Bench stated that, "for an "arrangement" to exist one party must have assumed at least a moral obligation, or given an "assurance" or "undertaking" that it will act in a certain way."[185]

[57] It was common ground that, following the change in pathology services provider from Healthscope to Dorevitch at midnight on 1 July 2015, tests were conducted by Dorevitch, on specimens collected on 1 July 2015 for nine patients, using Healthscope equipment at Warrnambool Hospital for which Healthscope (and not Dorevitch) received payment.

[58] There is no evidence before the Commission that the tests which were conducted on Healthscope's equipment occurred because there was an arrangement, between Healthscope and Dorevitch which resulted in this conduct by Dorevitch (using Healthscope equipment). Mr Persano gave evidence that Dorevitch used the Healthscope equipment without asking if Dorevitch could use it, on the basis of a moral obligation to patients and their welfare. He stated that there was no communication between himself and Healthscope on this issue. It appears that Dorevitch also took this action (use of Healthscope's equipment without asking) out of self-interest as the new pathology service provider. However, neither of these motivations (moral obligations) relate in any way to Healthscope. The moral obligation was between Dorevitch and the Hospital's patients and also between Dorevitch and itself.

[59] The email from the HSU member, which alleges that there was such an arrangement between Healthscope and Dorevitch, is acknowledged. The two emails are noted in the context of the usual Commission practice that sworn evidence will be weighed more heavily when balanced together with unsworn (and unidentified) evidence which has not been able to be tested through cross examination. That is the case in this matter in relation to the content of the two emails.

[60] With respect to whether there was an assurance or undertaking given by either Healthscope or Dorevitch to the other, the evidence does not show that either of these occurred. Mr Persano's evidence is accepted that there was no communication between himself and Healthscope and that Dorevitch was operating on the basis of an assumption that the usual changeover of equipment, when contracts were lost and won, would happen.

[61] Therefore, I have not been persuaded that there was an arrangement (moral obligation, assurance or undertaking) between Dorevitch and Healthscope which resulted in the use of Healthscope equipment on 1 July 2015.

[62] With respect to the union's argument that the Intellectual Property ('know how') of the transferring staff was an intangible asset that the new employer (Dorevitch) had beneficial use of, I have further considered the union's submissions in relation to this point. However, I confirm the preliminary view, expressed during the hearing, that the Commission as presently constituted would follow the authority set out in Gribbles that employees are not assets on an employer's balance sheet which can be bought or sold.[186] With respect to whether the employees' "know how" was an intangible asset, the evidence does not appear to support this contention. This is on the basis that Dorevitch's equipment was different to that of Healthscope, with different protocols etc. and that intense training and Dorevitch scientific support was needed to be provided to the transferring Healthscope employees. That the transferring Healthscope employees were well versed in the Hospital's policies and procedures is accepted. However, Mr Persano's evidence that this formed a very small part of the work of the transferring staff is also accepted. On balance, the Commission has not been persuaded that the transferring employees' "know how" constitutes an intangible benefit to Dorevitch.

[63] In terms of whether Dorevitch had the beneficial use of South West Healthcare's laboratories, which Healthscope had occupied prior to the change in provider, the evidence before the Commission is that Dorevitch had entered into a commercial lease with SWH for the use of the laboratories. As the laboratories are owned by South West Healthcare, it cannot be said that there was an arrangement between Healthscope and Dorevitch that Dorevitch would have beneficial use of the laboratories. That was not something that Healthscope had the ability to come to an arrangement with Dorevitch about. This was within the Hospital's remit. Therefore, I find that Dorevitch did not have beneficial use of the laboratories as the result of an arrangement between Healthscope and Dorevitch. Rather, there appears to have been a commercial lease arrangement between Dorevitch and South West Healthcare.

[64] Finally, in terms of the argument that there was an obligation on Dorevitch to employ the Healthscope laboratory employees, I have not been persuaded that this is the case. It is clear from the evidence that the Request for Tender document stated that South West Healthcare supported the retention of existing staff by the new contractor. However, this 'obligation' is one that was imposed on Dorevitch by the Hospital and not by Healthscope. Access was given to the Healthscope scientific employees by Healthscope and offers of employment were made by Dorevitch to all of the employees. However, the evidence does not show that this occurred as the result of an arrangement between Healthscope and Dorevitch or that it created an obligation between Dorevitch and Healthscope that Dorevitch would employ any or all of Healthscope's existing scientific workforce at the Hospital. Rather, it appears to have been pursuant to the Hospital's support for the retention of the existing Healthscope employees by Dorevitch. Any obligation, if there was one, would therefore be between Dorevitch and the Hospital - and not between Healthscope and Dorevitch.

[65] Taking all of the findings together, I have not been persuaded that there was an arrangement, however broad, loose or informal, between Healthscope and Dorevitch, within the meaning of section 311(3) of the Act in relation to the change in pathology service provider that took place on 1 July 2015 at South West Healthcare.

[66] Therefore, I find that there was no connection between Healthscope and Dorevitch as described in subsections (3) to (6) as required by section 311(1)(d). Even though section 311 (a), (b) and (c) have been met, as section 311(d) has not been met, this means that the requirements regarding a transfer of business in section 311 (1) have not been met.

[67] As there has not been a transfer of business in accordance with section 311 of the Act, the Commission is unable to make an order in accordance with sections 317, 318 and 319 of the Act. Accordingly, the union's application is dismissed.

S Bingham of Counsel for Health Services Union of Australia

J Forbes of Counsel for Specialist Diagnostic Services Pty Ltd t/a Dorevitch Pathology

[1] [2014] FWCA 7473

[4] Exhibit A3 and Addendum to Exhibit A3 and Exhibit R1

[6] Exhibit A4, Exhibit A5, Exhibit A6 and Exhibit A7

[13] Ibid PN 594 and Exhibit A4 at paragraph 21

[14] Ibid PN 481 - 486 and Exhibit A4 at paragraph 52

[15] Ibid PN 489 - 492 and ibid at paragraph 51

[16] Ibid PN 493 - 495, ibid at paragraph 47 and Exhibit A7 at paragraph 14

[20] Exhibit A7 at Attachments PE-Ord 4 and PE-Ord 7

[21] Exhibit A7 at paragraph 10 and Transcript PN 510 - 511

[23] Exhibit A7 at paragraphs 8 and 12 and Transcript PN 523 - 524

[43] Exhibit A6 at Attachments PE-16 and PE-17

[44] Exhibit A4 at paragraphs 42 - 43 and Transcript PN 581 - 589

[47] Exhibit A4 at paragraph 22 and Attachment PE-9

[55] Ibid PN 659 and Exhibit R3 at paragraph 5

[82] Exhibit A4 at Attachment 7 and Transcript PN 858 - 863

[90] Ibid PN 892 and 1028 and Exhibit R5 at paragraph 9

[91] Ibid PN 1029 and ibid at paragraph 9

[104] Ibid PN 997 - 1004, 1006 and 1008

[105] Ibid PN 1007 - 1010 and Exhibit R4 at paragraphs 31 - 32

[111] Ibid at paragraph 29 and Transcript PN 1018 - 1023

[117] Exhibit R5 a paragraph 4 and Transcript PN 1044 - 1045 and 1080 - 1083

[118] Transcript PN 1055 - 1067 and 1079 - 1099

[121] Ibid PN 1095 - 1098 and Exhibit R5 at paragraph 7

[122] Ibid PN 1094 and 1100 - 1103 and ibid at paragraph 7

[125] Ibid at paragraph 4 and Transcript PN 1128 - 1130

[128] Ibid PN 1109 - 1110 and Exhibit R4 at paragraph 27

[131] Exhibit R4 at paragraphs 35 and 37

[133] Exhibit A1 at paragraphs 2 - 3 and Transcript PN 1212 - 1213

[134] Exhibit A10 at paragraph 3 and ibid PN 1215 - 1218

[135] Ibid at paragraph 5(a), Exhibit A1 at paragraphs 18 - 19 and Transcript PN 1224

[136] Ibid at paragraph 5(b), ibid at paragraphs 14 - 15 and ibid PN 325 and 1225

[137] Ibid at paragraph 5(c), Exhibit A2 at paragraphs 6 - 8 and Transcript PN 1227 - 1228

[138] Ibid at paragraph 5(d) and Transcript PN 1229 - 1231

[139] Transcript PN 523 - 542, 1184 - 1205 and 1233 - 1239

[140] [2013] FWCFB 1198

[141] Exhibit A10 at paragraph 6 and Transcript PN 326 - 329 and 1241 - 1243

[142] Exhibit A1 at paragraphs 21 - 24 and ibid PN 1260

[143] Ibid at paragraph 23 and ibid PN 1260 - 1264

[146] Ibid PN 1266, Exhibit A1 at paragraphs 28 - 29 and Exhibit A4 at paragraphs 41 - 43

[147] Ibid PN 1267 and Exhibit A1 at paragraphs 30 - 38

[149] Ibid PN 1346 - 1347 and 1358 - 1359

[155] Ibid PN 615, 618 and 1272 - 1273 and Exhibit R6 at paragraphs 1 - 2

[156] (2003) 128 IR 286

[157] Exhibit R6 at paragraphs 35 - 40 and Transcript PN 1315

[158] Ibid at paragraphs 41 - 43 and ibid PN 616, 1274 and 1316

[159] Ibid at paragraph 44 and ibid PN 1316 - 1317

[160] Ibid at paragraphs 3 - 9 and ibid PN 1275 - 1276

[161] Ibid at paragraph 11 and ibid PN 1277

[162] Ibid at paragraphs 13 - 17 and ibid PN 1278

[164] Ibid at paragraph 19 and Transcript PN 1279

[165] [2011] FWA 4492

[168] Ibid PN 1288 - 1293 and Exhibit R6 at paragraph 25

[171] Ibid at paragraph 28, Exhibit R2 at paragraph 8 and Transcript PN 1295

[172] Ibid at paragraph 29 and Transcript PN 1296

[173] [2005] HCA 9; (2005) 222 CLR 194 and Exhibit R2 at paragraphs 6 - 7 and 9

[175] Ibid PN 1297 - 1309, Exhibit R2 at paragraphs 4 - 10 and Exhibit R6 at paragraph 29

[176] Ibid PN 1310 and Exhibit R6 at paragraph 29

[179] Ibid PN 1314 and Exhibit R6 at paragraph 32

[184] [2013] FWCFB 1198 at [21]

[186] [2005] HCA 9; (2005) 222 CLR 194

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