Industrial Relations Commission of New South Wales CITATION : MEU v EnergyAustralia [2002] NSWIRComm 61 PARTIES : Federated Municipal and Shire Council Employees Union of Australia, NSW Division EnergyAustralia FILE NUMBER: IRC 6483 of 1999 CORAM: Harrison DP CATCHWORDS : Industrial dispute re introduction of merit based salary system - advancement available to supplementary pay points on competency assessment - agreement to retrospective payment not met - competency criteria delayed - management responsibility - retrospective payment determined. LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 06/14/2001; 06/27/2001; 09/10/2001; 03/04/2002 DATE OF JUDGMENT: 04/05/2002 APPLICANT Mr M Neilson LEGAL REPRESENTATIVES: RESPONDENT Mr J Bell Mr B Grimshaw JUDGMENT: - 10 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 5 April 2002 Matter No IRC 6483 OF 1999 Notification under section 130 by the Federated Municipal and Shire Council Employees' Union of Australia, NSW Division of a dispute with EnergyAustralia re non-implementation of pay points scheme DECISION [2002] NSWIRComm 61 1 This matter was notified by the Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division (MEU) on behalf of 39 members, identified individually in exhibit 9, employed by EnergyAustralia in the Customer Services Division. 2 The issue between the parties is the appropriate date for commencement of a pay increase arising from the application of an agreement between the parties for the introduction of a merit assessment process known within EnergyAustralia as the Supplementary Pay Points (SPP) Scheme. 3 The matter was subject to extensive conciliation and discussions between the parties throughout the year 2000, resulting in the issue of a Certificate of Attempted Conciliation on 13 February 2001 and the issue of directions to bring the matter to hearing. 4 Orders sought by the MEU are specified in Exhibit 10 in the following terms: a Clerical and Administrative Staff in Customer Service shall not be disadvantaged in relation to other Energy Australia staff where the Supplementary Pay Point Scheme has been implemented. b. The Supplementary Pay Point Scheme shall be backdated to 12 December 1994 for Customer Service employees. c. The date set by the Commission for backdating of Supplementary Pay Points must cover staff who were working in Customer Service but have since been appointed to other positions in Energy Australia. 5 Mr M Neilson maintained his appearance on behalf of the MEU and brought evidence from Mr G McLean, an official of the MEU involved in negotiations with EnergyAustralia leading to the introduction of the SPP Scheme. 6 Representation on behalf of EnergyAustralia varied throughout the course of proceedings. At the outset of proceedings Mr J Counter and Mr J Carroll appeared and dealt with the matter in conciliation. From the period of late 2000 to the commencement of arbitration Mr J Bell and Ms F Hocking appeared on various occasions with or in place of Messrs Counter and Carroll. 7 In arbitration on 14 and 27 June 2001 Mr Bell appeared on behalf EnergyAustralia and undertook cross examination of Mr McLean. Issues arising in the evidence of Mr McLean resulted in an adjournment of the matter to allow the parties to further confer and for the union to better detail their application and the issue in dispute. 8 This process was completed in February 2002. The Commission was informed and the matter then scheduled for completion of arbitration on 4 March 2002. 9 On this occasion Mr B Grimshaw appeared on behalf of Energy Australia and brought evidence from Messrs Counter and Carroll. 10 It is not in issue between the parties that in late 1993 discussions took place between the MEU, other unions and Sydney Electricity concerning the introduction of a new pay structure for clerical and administrative officers that would provide opportunities for career path advancement and recognition of competencies and reward therefor. 11 A restructure of Sydney Electricity and the formation of EnergyAustralia by combination of Sydney Electricity and Orion Energy was announced in the latter part of 1995 and continued concurrent with the pay system negotiations and implementation. 12 The basis of the pay system negotiated between the parties is a central 12 grade competency based structure which was developed as the first step in the process. The implementation of this system involved a full analysis of all positions throughout the organisation by specifically established group with responsibility to fit all positions into the appropriate pay point. The evidence of Mr McLean is that there was an understanding that subsequent movement within the structure would be based upon superior and improved performance within the particular grade. A ballot of all clerical and administrative employees was conducted jointly by the employer and the MEU, resulting in acceptance of the 12 grade competency based salary structure on 15 December 1995. 13 The evidence of Mr McLean is that the 12 grade pay system was approved by a mass meeting of employees, voting 70% in favour. Mr McLean deposed that the 70% vote was less than an enthusiastic majority as the proposal did not include an SPP Scheme, only a commitment that one would be introduced. 14 Information provided to employees for the purpose of the ballot included a memorandum from Mr P Sergent dated 23 September 1994 (Ex 4) which set out examples of the system, identifying five key features in the following terms: The following example illustrates how the 12 Grade Spine is to be implemented: 8 31 Job Evaluation Grade and p.p. 30 ) Intermediate pay points - for 29 ) negotiated skill acquisition and 28 ) proficiency progression 27 ) arrangements 7 26 Job evaluation Grade and p.p. Features: (a) Job Evaluation determines the value of the job at a 'spine' grade at the corresponding pay point e.g. Grade 7 = p.p.26. (b) The intermediate pay points (27 to 30) between Grade 7 and 8 can be used for separately negotiated skill acquisition/proficiency progression arrangements. (c) These intermediate levels relate to skill and proficiency standards and bear no direct relationship to the job evaluation. They recognise the additional skills and proficiencies that an individual adds to the job requirements. (d) The job is substantially graded at the spine grade; in this example Grade 7, p.p. 26. (e) On falling vacant, the position is advertised at Grade 7, p.p.26. Reference can be made in the advertisement that further advancement is available (e.g. p.p. 27-30) subject to satisfying the conditions for attainment of additional skills and increased proficiency. 15 Administrative and clerical employees of Sydney Electricity (as it was then known) were also provided with a joint newsletter prepared and endorsed by management and unions on 7 December 1995 (Ex 7). This joint newsletter stated: We would like to express our appreciation to everyone who attended the recent Sydney Electricity/ MEU-ASU sessions delivered over the past few weeks by Peter Sergent and Greg McLean, and who raised questions and issues on the proposed structure. This is a healthy sign that clerical/ administrative staff are taking a more active interest in their new career structure. Throughout these sessions, staff were advised that certain issues associated with this project would be addressed by the Steering Committee, and staff would be so advised before being asked to vote on the structure. The following points confirm many of the issues covered together with those which have been reconsidered. 16 The newsletter went on to inform the clerical and administrative staff that the 12 primary gradings were spaced evenly apart by five pay point intervals; each pay point being worth 2%. The newsletter outlined the process of job evaluation against National Training Board competencies and the process of position competency assessments and amendments to the competency framework involved or envisaged in placing all positions in the 12 grade structure. 17 Amendments to the competency based structure were anticipated due to late return of position assessments. The relevant section of the joint newsletter stated: Many position assessments have been received well after the return date. Several suggested changes to the competencies have also been received at different times, and this has meant that we could not address all of these proposals in time before the vote. A proper assessment needs to be made of whether the proposed amendments affect other jobs across the organisation, and to do that it is all the more important to have the job assessments and proposed amendments in from all regions for comparison purposes. Wherever possible, we will attempt to provide a response to those suggested changes before the staff vote. To confirm the commitment given during the briefing sessions, we will guarantee that if a competency element is altered subsequently by agreement, and the grading of a job is consequently increased, then the job holder will be entitled to retrospectivity to 5 December, 1994 (agreed operative date for any changes) as though the agreed change was in place in the Competency Framework at the time of the vote. [emphasis added] 18 SPPs were dealt with at item 5 of the joint newsletter in the following terms: To recognise additional competencies, the Administrative and Clerical Steering Committee, after taking on board comments and suggestions from all work areas, decided to utilise two (2) of the four (4) intermediate pay points between the spine grading pay points. The 2nd and 4th pay points have been selected as 'worthwhile' steps above the spine grading. 19 Section 6 of the joint newsletter dealt extensively with development of SPP Performance Criteria. This section advised of a preference to develop the SPP Criteria centrally to avoid the possibility of different standards; and that while it was expected that individual branches and regions would initiate many of the draft proposals, the Employee Development Section (Corporate Division) would have a coordinating role to ensure consistency. 20 Under the heading of Timing, recipients of the joint newsletter were informed that work was expected to start in early 1996. The newsletter then dealt with Performance Criteria and Commitment and at item 6(e) dealt with retrospectivity in the following terms: The Steering Committee has agreed to a similar undertaking on backpay for the supplementary pay points which is being given for the competency amendments. If you satisfy the assessment criteria (to be developed early in the new year), for the supplementary (a) or (b) pay levels, and the assessment recognises that you held those competencies at the time of the vote, then you will be eligible for back payment to 5 December, 1994. [Emphasis added] 21 Item 13 of the newsletter concerned arrangements for the staff vote to take place on or around 11 December 1995. The issue of the vote and preferred outcome were put to staff in the following terms: You will be asked whether or not you approve of the new structure including the Competency Framework, supplementary pay points, and the guidelines appearing in this newsletter. … … We encourage you to lodge a 'Yes' vote in this important change to your career structure. We believe it is a step forward and reflects the general community direction along the competency road. We also believe the new structure offers you much greater opportunities for the future than presently is the case with the current structure. 22 On acceptance of the 12 grade competency based structure the parties embarked upon a detailed process of transferring each clerical and administrative position to a specific grade within that structure. This was not without problem. The vast majority of positions were transferred to the 12 grade structure by agreement, whilst a substantial number were ultimately resolved by processes of conciliation and arbitration in accordance with the award disputes procedure (IRC 2027 of 1996, Harrison DP, 16/3/98, unreported). 23 The intention and programme described for the implementation of criteria for access to SPP set out in the joint newsletter did not come to fruition and, on the evidence, appeared to lay dormant and overtaken by other events. 24 The next reference to development of an SPP scheme is found in a memorandum to all General Managers from Peter Sergent, Employee Relations Officer, dated 27 May 1997, titled Administrative and Clerical Structure Supplementary Pay Points (Ex 8), advised: The Acting Managing Director has approved the introduction of the Administrative & Clerical Supplementary pay points scheme. This approval means that the final phase of the 12 grade Administrative & Clerical structure can be implemented. No retrospective payment is involved with the introduction of the supplementary pay points, so that any proposals for individual payments must apply subsequent to this date. (emphasis added) Approval Criteria The approval is subject to the following criteria. (i) payment of either the first or second supplementary pay point be subject to a Divisional Manager's approval, (ii) payment be based on an employee's attainment and utilisation of competencies at a higher level than their present job requirements, and (iii) the employee's demonstrated acceptance and application of organisational goals and values as outlined in the proposed Performance Development System. Implementation Guidelines The objective of the supplementary pay points is to recognise an employee's contribution which is over and above the basic or minimum job requirements, in terms of adding value to the job through higher competencies. Because of difficulties in the interpretation and application of the Competency Framework, the original proposal to develop a subset of the competency descriptors for the supplementary pay points was abandoned. In lieu, a more balanced approach has been adopted that is more in keeping with an individual's on-job performance and the organisation's future business needs, in terms of work group needs, multiskilling needs, and group and individual effectiveness in terms of providing an overall competency service base. There is a clear preference to defer the supplementary assessment to local management and to link it to the position description and to an individual's development and progress under the Performance Development System. This will involve an assessment by the Division Manager of an employee's achievement and application of higher grade competencies, as well as their demonstrated acceptance and application of organisational goals and values as per the Performance Development System. By linking an employee's advancement to the Performance Development System cycle, employees and their managers can jointly map out a supplementary competency plan and detail how the employee is to acquire the additional competencies and achieve the agreed objectives. As a general rule, this plan will extend over a 12 month period and be subject to the usual 6 monthly reviews, where there is the opportunity to discuss an employee's performance, areas for improvement or development, and general progress towards the achievement of the competency plan. Individual divisions may elect to develop their own assessment procedures provided they are consistent with the above criteria. The choice of either the first or second supplementary will be a matter of judgement, based on the assessment outcome as to the part or full achievement of objectives and competencies. It is expected that progression to the second supplementary will not occur in the one step. However, in some cases, Divisional Managers may already be satisfied that an employee has achieved the required competency levels and has demonstrated through their work performance that they are committed to the organisation's values and business goals. In such cases, employees can be placed on either the first or second supplementary, depending on the level of achievement. The attached schedules A and B show the 12 grade structure and supplementary pay points. 25 Within exhibit 10, a bundle of documents tendered by Mr Neilson, is a further memorandum from the Acting Manager, Employment Services, EnergyAustralia dated 29 December 1997 informing a broad range of management of additional information to assist them in the establishment of SPP's; the final point being advice that "Finalisation of the above (including existing skill based schemes) should occur before the end of January 1998 wherever possible". 26 Also within exhibit 10 are Minutes of a Divisional Consultative Committee meeting held on 10 November 1998 which record Mr Neilson advising agreement that the issue of clerical SPP's would be finalised by November 1998; affirming that the issue must be addressed urgently; reiterating his request for retrospective payment in view of the delay; and arrangements for this to be considered by management representatives. 27 Mr Counter's evidence is that the creation of EnergyAustralia by the merger of Sydney Electricity and Shortland County Council (t/as Orion Energy) introduced significant restructure and reorganisation and difficulties of pay equalisation. Mr Counter deposed that Shortland County Council had introduced a broad band structure including performance pay for technical and field staff but had not developed comparable arrangements for clerical and administrative employees. 28 Mr Counter deposed that the process of creation of EnergyAustralia also required an intricate series of negotiation concerning salary maintenance, two rounds of voluntary redundancies and the creation of a common pay scale. 29 Mr Counter's evidence is that in June 1996 the then Acting Chief Executive Officer announced the interim structure, establishing new operational divisions which divided into functional areas. In November 1997 a new Managing Director announced a further restructure which he described as a Holding Company/subsidiary company model. This structure was further modified in February 1998 which created the Customer Service Division with headquarters in Newcastle, and Customer Supply Division and EnerServe with headquarters in Sydney. The purpose of the restructure was to align business operations on a functional basis rather than geographically. 30 It is Mr Counter's evidence that arising from the restructure of EnergyAustralia management came to the view that it was virtually impossible to introduce a generic competency structure throughout the organisation based on the circumstances of Sydney Electricity operating in monopoly conditions. It is Mr Counter's evidence that this led to the memorandum of 27 May 1997 (EX 8) and the subsequent development of SPP schemes in each of the business units. Mr Counter's evidence is that an SPP scheme was introduced to EnerServe from 3 November 1997, Retail and Marketing from 5 July 1997, and Corporate Sector from 29 December 1997. 31 Mr Counter's evidence is that the Customer Service Division was created from a number of other entities, including the Call Centre, the former Retail Division and Testing Certification Australia. A number of sub-units of the defunct Business Services Division were also transferred to Customer Service. Mr Counter deposed that it had taken some time to establish the line of business within Customer Service, consequently a clear and transparent working knowledge of the competencies required in a number of functional areas was delayed. 32 Mr Counter deposed that these difficulties had been raised with the MEU and in the absence of agreed criteria it was impossible to readily introduce the SPP scheme. Mr Counter restated EnergyAustralia's contention that operative dates of the SPP arrangements in other divisions are not relevant to Customer Service and that to extend retrospectivity would be contrary to the approvals provided in Exhibit 8 by the Managing Director. Mr Counter put that retrospectivity would create anomaly in that some employees would receive the benefit of increased salary in respect to a period of time past in which they may have not met the competency standard, whilst employees assessed in the future would have the benefit of the scheme limited to the date upon which they were assessed and met the criteria. 33 Mr Counter concludes his affidavit with the submission that, having regard to the commencement of the assessment process on 1 July 1999 and its conclusion on 30 June 2000, the appropriate date for payment of the SPP should be 1 July 2000. 34 The evidence of Mr Carroll is that subsequent to representation from Mr Neilson in early 1999 agreement was reached that a working party be established to progress the establishment of an SPP scheme for clerical and administrative employees within Customer Service. 35 Mr Carroll's evidence is that the SPP working party first met in March 1999 in which specific criteria were established, and at a subsequent meeting on 18 March 1999 agreement was established that appropriate performance standards be developed to enable consistent approach to pay points progression across Customer Service. Mr Carroll's evidence is that the working party met at regular intervals in the period to July 1999, resulting in agreement on an action plan to develop performance criteria for progression to SPP A. 36 Mr Carroll's evidence is that in October 1999 some members of the working party formed the view that the performance criteria development to that point required further rigour. This led to the initiation of these proceedings, first before the Commission as presently constituted in December 1999, resulting in a recommendation that the process of introduction of an SPP scheme within Customer Service be accelerated. 37 Mr Carroll describes the subsequent development of the scheme as a cooperative process between the MEU, management and employees resulting in establishment of a scheme and adoption by management of the operative date of 1 July 2000. 38 Exhibit 15 is a memorandum, jointly signed by Mr Carroll and Mr Neilson dated 8 June 2000, which informs the Customer Service Executive Team and Regional Managers that: The Customer Service Supplementary Pay Point (SPP) Working Party has now finalised agreement for Performance Criteria and Working Guidelines to apply to Administrative and Clerical graded employees within the Customer Service Division. 39 Exhibit 15 further advised that criteria had been concluded for progression to SPP A and that movement to SPP B had yet to be finalised. Recipients of exhibit 15 were also informed that a process of consultation and team briefs would be undertaken by Messrs Carroll and Neilson. 40 Mr Carroll deposed that whilst it was never intended that salary progression through the SPP scheme be retrospective, offers of payment from 3 March 2000 and 1 January 2000 were put in an attempt at resolution by conciliation. He further deposed that in his view assessment of employees to the performance criteria standards at a date prior to the establishment thereto would be an impossible task given the significant change in the structure of the organisation, the duties of individual employees, and movement of personnel such that persons who may have been aware of an individual's capability and performance level at a time past for the purpose of assessment will have left the organisation. SUBMISSIONS 41 Mr Neilson submitted that the staff of Sydney Electricity voted to accept the 12 point salary system and the introduction of an SPP scheme in the subsequent 12 months with retrospectivity to December 1995 in good faith. 42 Mr Neilson put that following the merger of Sydney Electricity and Orion Energy and the subsequent restructure, SPP was put to one side and surfaced again in May 1997 in the form of Exhibit 8. 43 In referring to Exhibit 8 Mr Neilson noted that the authority to proceed with the establishment of the SPP scheme at local level included a requirement that there be no retrospective payments. Mr Neilson submitted that the MEU believed that this referred to the period between 1994 and 1997, not to some indefinite period after that date. 44 Mr Neilson noted that the Retail and Marketing and EnerServe divisions of EnergyAustralia introduced their schemes from mid 1997 and early 1998 and that Customer Service chose to do nothing. Mr Neilson submitted that it is at this point that Customer Service staff became disadvantaged in relation to other clerical and administrative staff at EnergyAustralia. 45 Mr Neilson submitted that during 1998 the matter was raised by the MEU with management of the Customer Service division and with Corporate Human Resources and at various consultative committees. Mr Neilson acknowledged that subsequent to the issue being discussed at a meeting in November 1998 Mr Carroll was appointed and subsequently actively pursued the introduction of the SPP scheme within Customer Service in consultation with the MEU. Mr Neilson emphasised that this action was 18 months after the other divisions had met their obligation in accordance with exhibit 8 to introduction of an SPP scheme. 46 Mr Neilson submitted that the delay by Customer Service and then insistence upon development of individual competencies for various functional areas was a cynical attempt to save money and reduce labour costs, which he put is further supported by the fact that consequent to the establishment of competencies in October 1999 Customer Service would not implement them until the matter was referred to this Commission in these proceedings. 47 Mr Neilson concluded his submission by reiterating the MEU's contention that the introduction of the SPP scheme was a Corporate Human Resources responsibility and the fact that this was deferred to local management should not relieve EnergyAustralia of the obligation to ensure that fairness and equity apply to all staff across the organisation. 48 Mr Grimshaw submitted that assumptions by the MEU that the introduction of an SPP scheme would flow automatically were erroneous, and that automatic payment was never intended. 49 Mr Grimshaw refuted the assertion that EnergyAustralia had acted in any manner which was unfair or inequitous, and that it is not appropriate to assume that EnergyAustralia is an homogenous business operating in all of its various parts in exactly the same way; and further, that comparison between each of the business units is inappropriate. 50 Mr Grimshaw put that the approach adopted by Customer Service was not in principle inconsistent with that applied across the organisation in that access to SPP was subject to assessment, divisional management recommendation and approval by the respective General Manager on the basis of acquisition and use of skills of benefit to the organisation. 51 Mr Grimshaw submitted that Customer Service had applied criteria correctly, noting that this was consistent with the other divisions which had also applied the criteria well after December 1994, the date sought in the MEU's application. 52 Mr Grimshaw drew the distinction between a general wage rise and the availability of a pay increase based on performance, putting that there should be no serious consideration of retrospectivity in respect to the performance based increase. 53 Mr Grimshaw submitted that the evidence supports the contention that there was always an intention to implement an SPP scheme which has now come to fruition in all of the business units, which he noted were all developed within the particular business unit having regard to the particular requirements of the unit. 54 Mr Grimshaw relied upon the evidence of Mr Carroll, noting the nature of the SPP scheme, being assessment against performance criteria, to emphasise that not all employees will necessarily meet the criteria. 55 Mr Grimshaw refuted the assertion by Mr Neilson that the requirement of no retrospectivity found in the memorandum of 27 May 1997 (Ex 8) excluded the period subsequent to that date. Mr Grimshaw submitted that to read exhibit 8 as Mr Neilson does: to say that if the process were to take another two years there will be retrospectivity, is simply not an available construction. 56 Mr Grimshaw's final submission that should the Commission come to the view that any retrospectivity should be awarded, then this posed significant practical difficulties and involved a substantial cost. CONSIDERATION 57 An examination of the evidence presented in this matter reveals no link what so ever between the proposition advanced to employees of Sydney Electricity in the joint newsletter of December 1995 (Ex 7), urging them to vote in favour of the revised salary structure which carried with it the development of performance criteria in early 1996 with back payment to 5 December 1994, and the managerial memorandum of 27 May 1997 (Ex 8) authorising development of SPP's on a prospective basis. The initial proposal was an agreement between the parties, whilst the latter appears to be a unilateral act by management which ignores the earlier undertakings, which on any examination were not met. 58 There is no evidence that the 1995 agreement, as set out in the joint newsletter, was ever formally set aside or abandoned by the parties. 59 Explanations of organisational upheaval, restructure, and changing personnel have been offered as a reason for the failure of the parties to develop an SPP scheme in early 1996 in accordance with exhibit 7. The MEU in its submissions accepts these explanations, advancing that exhibit 8 is to be understood on the basis that the qualification of "no retrospectivity" applied to the period prior to 27 May 1997. The MEU further by its actions accepted a reasonable prospective implementation, putting no quarrel with the introduction of SPP's in the EnerServe and Customer Supply sections of EnergyAustralia throughout 1997 with implementation in some areas in early 1998. 60 On the evidence presented to the Commission in these proceedings, the Customer Services section of EnergyAustralia failed to act upon exhibit 8 until pressed to do so by Mr Neilson, and then not until Mr Carroll was employed, who, the evidence suggests, moved the process forward in consultation with Mr Neilson to the establishment of criteria for SPP A. I note that criteria for attainment of SPP B is yet to be established. 61 The evidence that Customer Services came together from various sectors of the organisation and that throughout the relevant time management positions had not been appointed is neither excuse nor explanation for failure to meet what was a clear obligation upon EnergyAustralia. If there was no divisional management there was a default to Corporate responsibility, not abdication and neglect. 62 The failure of management to meet commitments of the nature described here is not a basis upon which employees should be denied access to wage increases agreed between the parties. The argument that it would be inequitous or unreasonable to put a retrospective operation upon such criteria on the basis that it may result in employees being paid for competencies not held at a prior date is not sustainable. The principle advanced in the 1995 arrangements between the parties that where a person is first assessed against the established criteria and found to qualify for payment, then it would be assumed, and I think safely so, that the person so satisfied those criteria from the earlier agreed date. An anomaly or inequity does not arise where a person fails to satisfy the criteria on transition and requires further training, experience or formal qualifications to do so, and so qualifies at a future date, compared to persons who meet the criteria on transition. Such transition and progression arrangements are common features surrounding the introduction of merit based salary systems. 63 The evidence of Mr Carroll that assessment of whether an employee held a certain level of skill and qualification at a time past is virtually impossible is at odds with the agreement between the parties to do so in 1995, as expressed in the joint newsletter (Ex 7). The task of determining retrospective qualifications obviously becomes more difficult the longer the period of time concerned. Responsibility for delay in the present circumstances falls primarily to management, or lack thereof; particularly so given the continual efforts and pressure from Mr Neilson to advance the project. 64 There is a strong argument in support of the claim for payment from December 1994, defeated only by the conduct of the parties who, by a collective inaction or distraction, left the commitment to a 1994 operative date behind them. Customer Service has taken in excess of two years longer than other divisions to introduce an SPP system, despite continuing requests from the MEU. This tardiness is simply unfair and unjust. 65 Having regard to all of the circumstances, I determine that an operative date of 5 January 1998 is appropriate; and that where any of the 39 persons named in exhibit 9 meet the performance criteria for payment of SPP A on first assessment, they be entitled to payment on and from 1 January 1998. 66 I encourage the parties to move with some alacrity to establish criteria and conduct assessment for SPP B. 67 Orders sought by the notifier are not granted. Should specific orders become necessary to give effect to the determination in this matter, the notifier is at liberty to apply. 68 I so determine. oo0oo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.