AG2002/1766, Transcript of Proceedings [2002] AIRCTrans 1446 (1 May 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SPENCER

AG2002/1766

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of
the Act by G James Australia Pty Ltd,
Australian Workers Union, Construction
Forestry Mining and Energy Union, National
Union of Workers, Transport Workers Union
and Australian Building Construction
Employees and Builders Labourers Federation
for certification of the G James Australia
Pty Ltd Certified Agreement 2002

BRISBANE

10.14 AM, TUESDAY, 16 APRIL 2002

PN1

THE COMMISSIONER: I will take appearances please.

PN2

MR M. BELFIELD: If the Commission pleases, Belfield, initial M, from the Australia Industry Group, and on behalf of G. James Australia Pty Ltd, and with me I have MR S. KEUNE, who is the representative from the company.

PN3

THE COMMISSIONER: Thank you, Mr Belfield.

PN4

MS M. AUSTIN: Thank you, Commissioner, Austin, initial M, from the Construction, Forestry, Mining and Energy Union. I am also putting in an appearance for the Builders Labourers Federation.

PN5

THE COMMISSIONER: Thank you, Ms Austin.

PN6

MS Y. D'ATH: If the Commission pleases, D'Ath, initial Y, on behalf of the Australian Workers Union.

PN7

MR E. MOORHEAD: If the Commission pleases, Moorhead, initial E, on behalf of the Australian Manufacturing Workers Union.

PN8

MR D. PRIOR: Yes, if it please the Commission, the name is Prior, initial D, Industrial Officer for the Transport Workers Union Australia Queensland Branch.

PN9

THE COMMISSIONER: All right. Thank you, Mr Prior. Now, Mr Moorhead, you aren't a party to this agreement, as I understand.

PN10

MR MOORHEAD: Well, Commissioner, we seek to - we believe we are a party to the agreement, and if the Commission pleases I would like to address you on that point.

PN11

THE COMMISSIONER: You are seeking leave to intervene, Mr Moorhead?

PN12

MR MOORHEAD: No, Commissioner, we believe we are a party to the agreement. Commissioner, when the agreement was put to members from - sorry, when the agreement was put to the employees to vote, and - - -

PN13

MR BELFIELD: Commissioner, I need to object. Mr Moorhead is making submissions in regard to the process of this agreement being made. He needs to make submissions in relation to section 43, subsection (2); does he propose to be a party to this agreement? Because the application that is before you, Commissioner, does not contain any reference to the AMWU, and to my understanding therefore his union is not a party to these proceedings, and he needs to make an application to become a party by addressing you in relation to section 43(2), and not in any other way; if the Commission pleases.

PN14

THE COMMISSIONER: Well, Mr Moorhead, that is why I raised that question to you; in my reading of the agreement, I note, and I was going to bring that before the parties, I have correspondence from your union, that you have - well, firstly, as I understand it, you are not a party to the agreement and that is what you have brought to my attention, and secondly, you have some difficulties with the processing as your members were involved in the original agreement in this matter. But in the agreement that is before me, the AMWU, as Mr Belfield has pointed out, is not a party to this particular agreement, so you would need to address me in relation to section 43(2) so that I can consider whether to grant leave to intervene in these proceedings.

PN15

MR MOORHEAD: Commissioner, what we seek to address you on, as I was saying before Mr Belfield interjected, was we believe we are a party to the agreement, that we were a party to the agreement when the agreement was voted on, we have provided a statutory declaration, we have signed the agreement, and yet the agreement that has been submitted to the Commission does not include us. So while we have been physically removed from the wording of the agreement, we were a party when it was voted on, we were - we have signed the agreement and provided a copy of that to the Australian Industry Group.

PN16

We have provided a statutory declaration to the Australian Industry Group and to the Commission, however since that time we have been removed from the agreement. And the basis that we have been given for that is because we object to the process undertaken. So Commissioner, we believe there are two options here: the first is either that the document before you is a legal nullity and that it is not the agreement that was voted on which had the AMWU as a party, or we are a party and we should be able to make submissions on the certification of the agreement.

PN17

THE COMMISSIONER: In relation, though, to the first point in terms of giving you leave to intervene - well, there are two points there. In terms of the document that is before me you are not a party; you understand that?

PN18

MR MOORHEAD: Yes, Commissioner.

PN19

THE COMMISSIONER: And I understand what you are suggesting, as I understand from your correspondence, and I am not sure if Mr Belfield and the other parties have copies of that correspondence. Mr Belfield, have you seen that correspondence from the union?

PN20

MR BELFIELD: Yes, I have, I have various correspondence from the union, Commissioner.

PN21

THE COMMISSIONER: But in terms of this document that is before me in terms of an assessment as to whether I should grant you leave to intervene - - -

PN22

MR MOORHEAD: Commissioner, we do propose to become a party to the agreement. If the agreement is certified, we - - -

PN23

THE COMMISSIONER: But your statutory declaration would indicate otherwise in terms of the agreement that is before me; that your union has considerable difficulties with the process and the agreement.

PN24

MR MOORHEAD: Yes, Commissioner, but we - if that is found to be an agreement validly made by the Commission, we seek to be a party to that agreement.

PN25

THE COMMISSIONER: So are you suggesting by that statement, Mr Moorhead, that if in fact the Commission has no difficulties and is satisfied and cannot find reason to refuse to certify this agreement, that the AMWU wishes to be a party to the agreement?

PN26

MR MOORHEAD: Yes, Commissioner.

PN27

THE COMMISSIONER: But there is no documentation to assist you in that submission before me. Your statutory declaration that has been provided to me indicates that - well, it wouldn't meet the test in terms of the process and the valid majority, as I understand it. Are you seeking that that wouldn't be your position?

PN28

MR MOORHEAD: Well, Commissioner, while we do challenge the agreement, and that it isn't validly made under the Act, we do wish to be a party to any agreement that is made, and we have signed - and I have a copy of it here - a copy signed by Mr Harrison, our State Secretary, of the agreement that was forwarded to the Australian Industry Group and, I believe, to the Commission as well.

PN29

THE COMMISSIONER: No - - -

PN30

MR MOORHEAD: I am sorry, it may not have been submitted to the Commissioner, but we signed that agreement and passed that to the employer. And - - -

PN31

THE COMMISSIONER: We have got correspondence from you, Mr Moorhead, and we have received this morning a copy of a statutory declaration which was cited that has been missing from the correspondence; we don't have any former agreement.

PN32

MR MOORHEAD: Well, Commissioner, and that is what we seek to address you on; that there is a - that this is not the agreement. The agreement that was voted on had us as a party; we believe we are a party because when the employees voted on it we were a party, we have signed the agreement. Although our statutory declaration doesn't - provides that we don't believe it meets the test, we are seeking to be a party to the agreement.

PN33

THE COMMISSIONER: In doing so, and I am really only hearing you at the moment in terms of your intervention application, my understanding is that an employer is able to select one or more organisations that they wish to form an agreement with, and that is what the AIG seems to have done in this particular circumstance. Given your position as you have set out in your correspondence, why do you think that today - because what you are suggesting by your submission is that in entering these proceedings then the certification today couldn't go ahead.

PN34

MR MOORHEAD: Yes, Commissioner, what we - we believe that the employers do have a right to choose who they make an agreement with, but once that agreement is made by a vote of employees that choice finishes, that choice is made and it was chose - the employer chose to make an agreement with other unions, including the Australian - and one of those unions was the AMWU, and that agreement was voted on by the employees, and it has only been subsequent to that that we have been removed from the agreement.

PN35

THE COMMISSIONER: But as I understand it, and Mr Belfield will probably address me on this, but that the agreement was voted on and a valid majority of employees voted in support of that particular agreement, and in piecing together this simply from the correspondence after that fact the union then took issue with the particular process of that agreement, and none of the other unions who are suggesting that the agreement be certified today share those difficulties.

PN36

MR MOORHEAD: Well, we can't speak for the other unions, Commissioner, but we have problems, and we think that we have - our name was taken off that agreement that was submitted to the Commission following the vote that was taken by the employees merely because we raised concerns about the process undertaken. That the agreement was - we believe the agreement was made when the employees voted on it, and at that time we were party to the agreement; we have signed the agreement.

PN37

THE COMMISSIONER: But Mr Moorhead, wouldn't it have been the case if your union had difficulties with the actual document and the processing, that prior to having the vote taken that would have been the time you would raise those difficulties with the employer?

PN38

MR MOORHEAD: Well, we can address those, but I mean, those - that is part of our concern, Commissioner, that the way the vote was undertaken was employees were not informed - in our submission, if you allow us to raise this later, the employees were not fully informed of what they were voting for, how they were to vote, they were not given proper information about the vote, and this union wasn't advised that there would be a vote.

PN39

THE COMMISSIONER: So to take your submission then further, is it that you would be suggesting that this agreement be unravelled, and that the whole process be undertaken again?

PN40

MR MOORHEAD: Well, that is an option for the parties, and we have no problem with that; is that if - - -

PN41

THE COMMISSIONER: Well, the reason I ask you is because what we are considering is, under that section 43(2), I cannot grant leave to intervene in the matter to an organisation of employees other than what is proposed to be bound by the agreement. So what is the position of the union? Are you proposing that you will be bound by this particular agreement?

PN42

MR MOORHEAD: Yes, it is, Commissioner.

PN43

THE COMMISSIONER: And what are the practicalities of that?

PN44

MR MOORHEAD: That we believe that if the Commission does certify its agreement, we wish to be party to it. However, we believe that in making those submissions on whether the agreement meets the requirements of the Act, even though we will provide what we believe were the situation, even - we wish to be a party to the agreement. If there is an agreement, we wish to be a party to it; however, we wish that in that process of certification we as a proposed party be heard on the requirements of the Act.

PN45

THE COMMISSIONER: Is that all you wish to say in terms of the application for intervention?

PN46

MR MOORHEAD: Yes, Commissioner, we - yes, that is, Commissioner.

PN47

THE COMMISSIONER: All right. Mr Belfield?

PN48

MR BELFIELD: If the Commission pleases. It is rather - it isn't genuine for the union to suggest that they can have it both ways; they have a bob each way that they don't support the agreement that is before you now for certification, but if you certify it they will support it then. They can't do that; it is travesty of the concept of being a party to an agreement, and where it says that the right to intervene is only for those organisation for employees other than - sorry, that are proposed to be bound by the agreement, I say that the union has to say that they wish to be a party to the agreement that is before you prior to certification; they cannot stand back and have rights to make submissions to hijack the process that the other six parties have entered into in good faith, and the employees have been provided with the benefits of that agreement since 1 November.

PN49

They can't now stand here and say that they are going to unravel it, and they do that on the pretext that they have some right of intervention. They don't have right of intervention, they are not a party to this agreement, they don't propose to be a party to this agreement, and they are certainly not supporting the document that is before you today; they can't possibly be a party to that agreement, if the Commission pleases.

PN50

THE COMMISSIONER: Ms Austin, do you have any submission to make?

PN51

MS AUSTIN: No, Commissioner, I don't have anything to add. I am was not aware of this issue until this morning.

PN52

THE COMMISSIONER: All right. Your union has obviously come today to have the agreement certified, in support of it.

PN53

MS AUSTIN: Correct, and also for the BLF as well, the agreement for certification.

PN54

THE COMMISSIONER: All right. Ms D'Ath, do you have any submission to make?

PN55

MS D'ATH: If the Commission pleases, as far as the intervention, I mean, it is also I guess new news to the AWU as far as this issue. However, based on what has been heard, the AWU would not support any process that might delay the certification of this agreement.

PN56

THE COMMISSIONER: All right. But I take it that the submissions of the unions obviously are that you have no difficulty with the process that has been undertaking in the formation of this agreement, and the stat decs support that.

PN57

MS D'ATH: That is correct, that is reflected in our statutory declaration, Commissioner.

PN58

THE COMMISSIONER: All right. Mr Prior?

PN59

MR PRIOR: Thank you, Commissioner, I concur with my union colleagues to the extent that we were unaware that there was any problem prior to today's proceedings, and we would certainly support the other unions on the position that no delay in the circumstances should prevent the agreement - should it be certified today.

PN60

THE COMMISSIONER: All right. Mr Moorhead, do you wish to respond in relation to that?

PN61

MR MOORHEAD: Yes, Commissioner. In relation to Mr Belfield's suggestion that the union can't have a bob each way, that we can't propose to be a party to the agreement, and then raise concerns about whether the Act meets the requirements - whether the agreement meets the requirements of the Act, that process would mean that the submissions that we make every day on the certification of an agreement are - the ability of us to make those submissions is conditional on what those submissions should be, Commissioner.

PN62

We do propose to be a party to the agreement, but we also wish to raise out concerns. We are not going to change our statutory declaration to be a party to the agreement because that is what we believe is the case, but we see that we were a party to the agreement, that following our concerns about the making of the agreement we have been removed, after the vote made by the employee, and that we seek to be a party to the agreement and to make submissions as to how the agreement was made.

PN63

THE COMMISSIONER: Just so I understand you, Mr Moorhead, whilst you say to me that you seek to be a party to this agreement, in its current form that is being as applied to the Commission to be certified today, is that the basis on which you propose to be a party?

PN64

MR MOORHEAD: Yes, Commissioner. If that agreement is found - if the Commission finds that we are wrong in our terms of how the agreement was made, and that the agreement does meet the test, we accept that and we seek to be a party to the agreement, but - - -

PN65

THE COMMISSIONER: But that would be an issue that you would have to bring evidence on, wouldn't it, Mr Moorhead?

PN66

MR MOORHEAD: Sorry?

PN67

THE COMMISSIONER: If you are saying that the process in relation to the agreement and the way that it was formed, if your union has difficulties with that, that is an issue that you would have to bring

PN68

evidence on, isn't it?

PN69

MR MOORHEAD: Well, we can do that if you wish, Commissioner, we have got our official responsible for G. James Glass in the Commission today, and we can provide that evidence.

PN70

THE COMMISSIONER: And your difficulties are with it as in terms of your correspondence; that you say your members only haven't had it for 14 days, and that the manner in which the vote was taken for your 40 members, it was in breach of the Act; is that what you are suggesting?

PN71

MR MOORHEAD: I believe so, Commissioner. I believe there is also an issue of employees from a non-English speaking background as well. Our membership - we have a high Vietnamese membership at G. James Glass, and we have concerns about the way that that - the contents of the agreement were communicated to our employees of - who aren't - - -

PN72

THE COMMISSIONER: How many of those members do you have?

PN73

MS AUSTIN: 30 of the 40 non-English speaking.

PN74

THE COMMISSIONER: Anything else, Mr Moorhead?

PN75

MR MOORHEAD: No, thank you, Commissioner.

PN76

THE COMMISSIONER: All right. I intend to consider this issue and come back in the short term.

SHORT ADJOURNMENT [10.32am]

RESUMED [10.58am]

PN77

THE COMMISSIONER: Mr Moorhead, just in relation to the application for intervention, just so I am clear, which particular provision under section 43? Is it section 43(1) or section 43(2) that you are seeking to rely on?

PN78

MR MOORHEAD: Both, Commissioner, we believe that we are an organisation of employees as proposed to be bound by the agreement. When the proposed agreement was put to employees we were mentioned in that agreement, we were the first union in the parties' bound clause, and it is on the basis that the employees - that the agreement was made.

PN79

PN80

THE COMMISSIONER: That is of course not before me, though, that document.

PN81

MR MOORHEAD: No, it is not, Commissioner, and we are willing to provide evidence to deal with that, to provide evidence that we are a party; if the Commission believes that is desirable.

PN82

THE COMMISSIONER: Well, just in relation to that application for leave, you say in relation to (1), section 43(1), you are indicating there that you are acting as an agent then for a person who would be bound by this particular agreement?

PN83

MR MOORHEAD: Sorry, Commissioner.

PN84

THE COMMISSIONER: Because I understand it, 43(1), your application would be there that you would be acting as an agent of a person who would be bound by this particular agreement; or 43(2), whereby, and this is in relation to your submission that you are seeking to be bound by this particular agreement, part (b), a party, being the proposed party to the agreement?

PN85

MR MOORHEAD: Yes, Commissioner.

PN86

THE COMMISSIONER: So you are making a submission in relation to both of those particular - - -

PN87

MR MOORHEAD: Well, Commissioner, we - - -

PN88

THE COMMISSIONER: I am not trying to dissuade you from your submission, I am just trying to - - -

PN89

MR MOORHEAD: No, we concede that we have difficulties in relation to 43(1) because we don't have a written appointment as required by the Act and the rules as an agent for an individual employee who may be covered by the agreement. However, we don't believe we are excluded by 43(2)(b) because we are - because of the submissions that we have made in relation to that we are a - a party as proposed to be - sorry, an organisation of employees that is proposed to be bound by the agreement.

PN90

THE COMMISSIONER: Right. Well, look, I have considered it; I just wanted to clarify those steps with you. I have considered your initial submissions in relation to that matter. I intend to reserve my decision in relation to your application for leave to intervene, and hear your submissions in relation to this specific agreement as to whether you think this agreement in its current form should be certified by the Commission.

PN91

MR MOORHEAD: Thank you, Commissioner. So Commissioner, just a bit of clarification on how that would proceed, we would make submissions on why we believe that the agreement should not be certified, or that we plead the problems with the process that we have put before the Commission. However, if you at a later stage decide that we are not to be heard, those submissions will be not considered, or will be - - -

PN92

THE COMMISSIONER: What I would do is make a decision with both of those things in mind, Mr Moorhead, because this particular process today is to consider whether the agreement should be certified, and in relation to section 43(2) you have said to me that you do intend to be a proposed party, so I need to consider, and in fact you have said to me earlier that if I intend to certify this particular agreement you wish to be bound by it.

PN93

MR MOORHEAD: Yes, Commissioner. Commissioner, we would seek to call evidence on that point, if the - that we - - -

PN94

THE COMMISSIONER: Well, it - - -

PN95

MR MOORHEAD: Or we can just make submissions from the bar table.

PN96

THE COMMISSIONER: Well, I am not meaning you to bring that evidence, I mean, Mr - the other parties may make a submission in relation to that. But what are you suggesting that that evidence will say?

PN97

MR MOORHEAD: What our evidence will say, Commissioner, is that - - -

PN98

THE COMMISSIONER: And it may be an appropriate time, if the witness is here, to remove that witness.

PN99

MR MOORHEAD: Sorry. Commissioner, our submissions will be that the union does propose to be a party to the agreement. Firstly, maybe may - the AMWU organiser responsible for the G. James site has met with the employees and sought their position, and the position that came from that meeting was that they wish the AMWU to raise concerns about the process in reaching the agreement, but they wanted to be a party to that agreement. Commissioner, as well, the agreement was forwarded to the AMWU - - -

PN100

THE COMMISSIONER: Mr Moorhead, just to stop you there; the evidence of this - these are all the issues that will relate to the evidence of this particular organiser?

PN101

MR MOORHEAD: Yes, Commissioner.

PN102

THE COMMISSIONER: All right.

PN103

MR MOORHEAD: That the unions signed the agreement on the advice of its - sorry, Mr Harrison, the State Secretary of the union, signed that agreement on the direction of the AMWU Administrative Committee, the body which is responsible for making that decision, and that that agreement was forwarded to the employer party, that signed agreement was forwarded to the employer parties with the hope that it would be - with the proposal that we be a party to that agreement. However, we do believe that there are - the union has serious concerns about the process which need to be raised.

PN104

THE COMMISSIONER: And can you give some more specifics in relation to that?

PN105

MR MOORHEAD: Yes, Commissioner. The first concern which the union wishes to raise is the process for voting on the agreement. Our members at the Kingsford-Smith Drive site were not given a copy of the agreement, and when our organiser arrived at that site to have negotiations with the employer was told that the rural and regional sites of G. James had already voted 326 to 4 in favour of the agreement, and as there are only 200 other employees, that the agreement would be certified anyway.

PN106

So our members were not provided with a copy of the agreement, were asked to vote on that agreement, without knowing what they are voting on, and as well, our - - -

PN107

THE COMMISSIONER: How many members do you have in total?

PN108

MR MOORHEAD: Sorry?

PN109

THE COMMISSIONER: How many?

PN110

MR MOORHEAD: I am not sure in total. Just in relation to the Kingsford-Smith site, Commissioner, we have about 30 members.

PN111

THE COMMISSIONER: I thought your correspondence said 40.

PN112

MR MOORHEAD: Sorry, 40 members.

PN113

THE COMMISSIONER: In total.

PN114

MR MOORHEAD: I am just not sure. No, sorry, there is 30 Vietnamese members and 40 members in total, and I think at that site there is also about eight AWU members as well. That they weren't provided with a copy of the agreement, they were asked to vote on the agreement, and due to the difficulties that many of them have with the English language, there was no attempt made by the employer to explain the terms of the agreement to those employees.

PN115

And the final point, Commissioner, is, in relation to the long-service leave clause in the agreement that is in the agreement before you, Commissioner, I believe it is clause 24 of the agreement in the application, we have a copy of the agreement which we were informed was distributed to the employees, and that long-service leave clause isn't in that agreement.

PN116

And this was the agreement that was provided to Ms May as the agreement which was put to the employees, and it doesn't have that clause in it. And that has subsequently arrived in the agreement before you for certification, Commissioner. We also have concerns with the content of that agreement, in that it allows for the cashing out of long service leave which is prohibited by the award, the underpinning award for our members at that site, which is the Metal Engineering and Associated Industries Award 1998, part 1. So we believe - we have serious concerns about whether that provision, that long service leave provision does meet the no disadvantage test.

PN117

THE COMMISSIONER: Mr Moorhead, why have these issues - why has the union waited until today. I mean there are obviously other options that the union frequently exercises legitimately to pursue their concerns. I mean wasn't a dispute matter raised in relation to this, to deal with these issues prior to certification, considering that the union seems keen to be - proposed to be bound by this agreement?

PN118

MR MOORHEAD: Commissioner, the union hasn't notified the Commission of a dispute prior to this, and I can make no excuses for that. But the union has taken steps to contact Mr Lewis Saragoski of the company, as well as Mr Belfield of the Australian Industry Group and speak to them about our concerns. We have raised these concerns with our members, with management, at G. James Glass and Aluminium.

PN119

However, the response that we have got was if you wish to raise concerns - sorry, the response was you are either - propose to be a party or you don't and if you raise concerns about the agreement we will remove you from the parties to the agreement. And that came after the vote was taken, Commissioner, after we were a party to the agreement, when the agreement was made.

PN120

So, Commissioner, there are serious concerns about whether the requirements of the Act have been met, and we wish to raise them and put them before the Commission. However, if the Commission is of a mind to certify that agreement, we propose to be a party to that agreement.

PN121

THE COMMISSIONER: And this particular witness is the delegate, the organiser?

PN122

MR MOORHEAD: Yes, Ms May is the organiser for - the AMWU Organiser responsible for the G. James Glass sites across Queensland.

PN123

THE COMMISSIONER: Fine. Well, do you intend to call her now?

PN124

MR MOORHEAD: If the Commission pleases.

PN125

THE COMMISSIONER: Well, Mr Moorhead, you need to run your particular case, but what I am going to hear you on is today's proceedings are in relation to whether or not I certify this agreement. If your union has reason to believe that the agreement shouldn't be certified, and that, in fact, if you are granted leave in relation to being a party under section 43(2), who is going to be proposed to be a party under this agreement, then you need to provide that evidence and run those particular submissions. And then Mr Belfield will certainly address me on that as will the other parties, and I will make a decision on that basis.

PN126

MR MOORHEAD: Okay, thank you, Commissioner. In that case we seek to call Miss Margaret May.

<MARGARET GABRIEL MAY, SWORN [11.14am]

<EXAMINATION-IN-CHIEF BY MR MOORHEAD

PN127

MR MOORHEAD: Can you state your full name and address for the record, please?---My name is Margaret Gabriel May, and my address is 32 Kolora Crescent, Ferny Hills.

PN128

And what is your occupation?---I am an Organiser with the Australian Manufacturing Workers Union.

PN129

Are you the official responsible for the G. James Glass and Aluminium sites?---Yes, I am.

PN130

Can you outline to the Commission the process that was taken to gain the approval of the employees at the G. James Glass site for the agreement, which is before the Commission today?---The process that was conducted in my - sorry, I just need to clarify it, do you want to know the process that was conducted that I was a party to, or the process that was conducted as relayed to me by the company?

PN131

Both, thank you?---All right. Okay, the process that was relayed to me by the company was that at a second meeting to discuss the agreement where we expected that the company would reply to the log of claims that we put to them, they informed us that the vote had been taken in regional areas, and that that vote had got up by a majority of people. I can't exactly remember the numbers, but it was something like 326 to 4, or something like that. They then informed me that we should conduct our vote of our members. I informed them that we were not happy with the agreement, and that we did not believe that the agreement had been out for 14 days, in accordance with the legislation. They said, well, the vote has been taken, you will now have to vote - ask your members to vote on it. I did at the time say to Mr Keune, "How many people does the city area represent"? And he said, "250 approximately". And I said, "Well, of course, that means that any vote that they take will be meaningless because the agreement has already been voted on by a majority, according to you in regional areas." I subsequently conducted a meeting of our members and also in attendance was the AWU Organiser and AWU members, NUW and the ETU were also present at that meeting. We put it to the members the

**** MARGARET GABRIEL MAY XN MR MOORHEAD

position that they were now to have a vote on this agreement. They objected to the process that had been used in regards to the fact that they felt dis-enfranchised by the process in that they knew fully well that whatever they voted made no difference because the vote, according to the company, had already been taken in regional areas and their vote in essence was meaningless. At that point they voted to reject the agreement unanimously.

PN132

It was a unanimous vote?---It was a unanimous vote at our site to reject the agreement.

PN133

And where was that meeting?---That meeting was held in the lunch room at 1008 Kingsford Smith Drive, I believe the address is. It is the corner of French Street and Kingsford Smith Drive.

PN134

Okay?---Where we have the majority of our members.

PN135

And were - the employees who were present at that meeting had they been provided with a copy of the proposed agreement?---No, they had not. They had not seen a copy of the proposed agreement.

PN136

So what were they voting on?---They were voting on a draft copy that we had been discussing what the company had offered us in a draft. The agreement that they had seen they believed to be the company's offer. They did not believe that it was the final document, they believed that as we had initiated a bargaining period and served the company a log of claims, which we were intending to pursue with them, they believed that that document that was initially shown to them as a proposal was merely that, a proposal. And that at a subsequent time a final document would be offered to them after real negotiations had taken place.

PN137

Sorry, when was that document given to them?---We - there was never a document given to the employees, it was given to the unions as a proposal. This is the proposed agreement from G. James. But the employees themselves had never had agreement put to them.

**** MARGARET GABRIEL MAY XN MR MOORHEAD

PN138

Okay. Commissioner, I would seek to tender - - -

PN139

THE WITNESS: To my knowledge.

PN140

MR MOORHEAD: Commissioner, I seek to tender some correspondence from G. James. Sorry can the witness be shown a copy of that?

PN141

THE COMMISSIONER: I might just mark that for the record, so I understand. We will mark it exhibit 1 and it is a copy of an agreement entitled G. James Australia Pty Limited Certified Agreement 2002, with a piece of correspondence from Mr Saragoski dated 31 October 2001.

EXHIBIT #1 COPY OF AGREEMENT ENTITLED G. JAMES AUSTRALIA PTY LIMITED CERTIFIED AGREEMENT 2002 WITH PIECE OF CORRESPONDENCE FROM MR SARAGOSKI DATED 31/10/2001

PN142

MR MOORHEAD: So have you seen that document before?---Yes, this is what was forwarded to us after I requested that meetings take place in regards to the agreement.

PN143

Okay. And was that - and the attached agreement, if I can refer to that, the agreement that is attached to the letter?---Yes, this is what was forwarded to us, yes. And we subsequently initiated a bargaining period and served the company a log of claims. Similarly the NUW, the ETU also served a log of claims on the company.

**** MARGARET GABRIEL MAY XN MR MOORHEAD

PN144

Okay. And was this the agreement which was put to employees?---I am - I can't tell you because I - as far as I know this is the agreement that I told them was the draft, was an offer, right. As far as I know no copies were independently circulated by the company to their employees. This is the document - I did not represent this to our members as the final document ever. I said that this was the offer of the company, and that we had initiated a bargaining period because we didn't feel that this represented a reasonable deal, given what was out there in industry.

PN145

Did the employer tell you what agreement was put to the employees?---They said that this is what they circulated. They told me that they circulated this to their managers.

PN146

And when did they tell you that?---At the second meeting that we had where I said, "Well, I don't believe that this document is valid because it - and I don't think that the vote that you took was valid because this document hasn't been represented as the document." And they told me that they had circulated it to their managers on the same date, on 31 October, and that they saw that as a valid 14 day period in which to consider the document. So I disagreed with this point considering that we had had two meetings. We were still in the bargaining process at that stage, we had not concluded or even really commenced any bargaining. The first meeting was not held until 10 days, I think, after - I am not quite sure, but it was after this point that we had the first meeting, which was attended by the AWU, the CFMEU, the ETU, the NUW, the TWU and myself.

PN147

I would just like to ask you some questions about the membership at the Kingsford Smith Drive site. Are there AMWU members at that sites from a non-English-speaking background?---Yes, there are.

**** MARGARET GABRIEL MAY XN MR MOORHEAD

PN148

How many?---Of the 30 - we have 40 members in total. We have about eight out at the Riverview site. Predominantly, those people are of non-English-speaking background, Thai, Chinese and some South American. And the Kingsford Smith Drive site, the maintenance people that we have, about eight of those out of the 30 remaining - 32 remaining, about eight of those are maintenance people and they are all of Australian background. The others are all of non-English-speaking background. They are Chinese and Vietnamese. Sorry, does that add up to 40? It's about 30, 32.

PN149

Do those employees from non-English-speaking backgrounds have difficulty with the English language?---Absolutely. I have extreme difficulty and I use one of their number who has reasonable - but I spent quite a significant amount of time trying to explain to them what had happened, and what the voting process was supposed to mean, and they are not happy. When I showed them the stat dec that said that there were no people of non-English-speaking background working at G. James, they were quite upset and quite horrified that they had not been even recognised, and they do have difficulties in understanding what's going on. They really do.

PN150

Were there any efforts made by the company to explain the terms of the agreement?---No, not at all.

PN151

There was no provision of a translator or no - - - ?---No, nothing.

PN152

- - - of the agreement in another language?---No.

PN153

You have said that the agreement that came with the correspondence on the front from G. James was the agreement which you were informed was put to the employees?---Apparently, yes.

PN154

Can I just take you to - can I just ask you to look through that agreement for me. Is there a clause in that agreement in relation to long service leave?---Yes, there is.

**** MARGARET GABRIEL MAY XN MR MOORHEAD

PN155

Can you show it to me, please?---Oh, no, there isn't in this one. I am sorry, I will just see if I can find it. No, there isn't. Sorry, there wasn't in the original document. No, sorry, I can't see anything in regards to long service leave in this document. This is a copy of the previous agreement. It is a mirror image of the previous agreement.

PN156

Okay?---This was what was voted on.

PN157

And, on the front page, it is titled the G. James Australia Pty Limited Certified Agreement 2002?---Yes.

PN158

Commissioner, I would seek to tender another document.

PN159

THE COMMISSIONER: That will be exhibit 2. Mr Belfield has a copy? The other parties have a copy?

PN160

MR MOORHEAD: No. Sorry, I will hand up my copy to the witness.

PN161

THE COMMISSIONER: Well, if you need that, I can provide mine. You use that for the purposes, Mr Belfield, and then I will get a copy back.

PN162

MR BELFIELD: I've got that one, thank you.

PN163

THE COMMISSIONER: All right.

PN164

MR MOORHEAD: We would seek to tender that, Commissioner.

**** MARGARET GABRIEL MAY XN MR MOORHEAD

PN165

THE COMMISSIONER: All right. I will mark that exhibit 2.

EXHIBIT #2 DOCUMENT FORWARDED TO AMWU WITH STATUTORY DECLARATION ATTACHED FOR SIGNATURE

PN166

MR MOORHEAD: Ms May, can you explain - have you got the document in front of you?---Mm.

PN167

Can you explain to the Commission what you believe that is?---This is the document that was sent to our office with the stat dec attached which was the one that was proposed to be certified for our State Secretary to sign.

PN168

And on page 2 of that application, is the AMWU a party to that - mentioned as a party to that agreement?---Yes, it is.

PN169

If you turn over to page 5, there is a signature there?---Mm.

PN170

Do you know whose signature that is?---That's Dave Harrison's signature. He signed it under my - with my information.

PN171

Are you aware of whether that agreement was approved by the AMWU Administrative Committee?---Yes, it was. I was at that committee and I made a submission as to the agreement, and the decision was made to sign it.

PN172

And what was the intention of signing it?---The intention of signing it was so that we could speak in the Commission, so that we could stand in the Commission and raise our concerns as to the process used by G. James in relation to making agreements with their employees.

**** MARGARET GABRIEL MAY XN MR MOORHEAD

PN173

Did the union propose to be a party to that agreement?---Yes, they did, and I conducted meetings with members - our members out on the site to explain to them the process that, in order to speak to the agreement, we had to be a party to it, and they agreed that that was the best course of action for this time.

PN174

But if the union - and at those meetings, both the Administrative Committee and the meeting on site, what was said about the situation if the agreement was going to be certified?---We made a decision that we did not wish to disadvantage our members - considering that they are already disadvantaged by their lack of English skills, we should not seek to further disadvantage them by not becoming parties to that agreement. So should any difficulties arise that are part of this agreement, we would still be able to represent them, if there was a dispute. We just felt that it was fair to those people to put it to them, that this was the situation. If we weren't a party, we couldn't represent them if there was a problem about something in this agreement, and the decision was taken in conjunction with our members that that would be the best course of action.

PN175

I see to tender a further exhibit. It is the statutory declaration of Mr Harrison.

PN176

THE COMMISSIONER: I will mark that as exhibit 3.

EXHIBIT #3 STATUTORY DECLARATION OF MR HARRISON

PN177

THE COMMISSIONER: Do you have a copy of that, Mr Belfield?

PN178

MR BELFIELD: Sorry, which one is it?

PN179

MR MOORHEAD: It is the statutory declaration which the union submitted?

**** MARGARET GABRIEL MAY XN MR MOORHEAD

PN180

MR BELFIELD: Yes.

PN181

MR MOORHEAD: Is that a statutory declaration signed by Dave Harrison, the State Secretary of the AMWU?---Yes, it is.

PN182

Does it refer to the G. James Australia Pty Limited Certified Agreement 2002?---Yes, it does.

PN183

In that statutory declaration, it provides - sorry, what was the source of this document?---The statutory declaration was provided to us with the agreement from the AIG as far as I know.

PN184

Okay. But is that statutory declaration in the same form as it was when it was set to the union by the AIG?---Oh, no, no. We have altered the statutory declaration to express the problems, to show that there was, in fact, some parts of the process that weren't followed correctly.

PN185

And once again, it names the AMWU as a proposed party to the agreement at part IV?---Yes, it does.

PN186

And at 6.1, subclause (1), it talks about the steps taken by the employer to provide the employees with a reasonable opportunity to decide?---Yes.

PN187

Can you just explain what it says there and why that was put there?---It says, "No negotiations held in good faith." That is correct. The votes were taking place even as the first meeting was held, and, by the time the second meeting was held, the company informed us that the vote in regional areas had been completed which gave the majority decision to the agreement. "Final agreement was not circulated to all and the employees of G. James did not have the required 14 days to consider the document." I do maintain that the members - the workers particularly at the sites in Kingsford Smith Drive did

**** MARGARET GABRIEL MAY XN MR MOORHEAD

not have a copy of the agreement, particularly this agreement that was presented at the end which includes the long service leave clause which wasn't in the original one, and that there was no 14 day period given to them to consider the document. There was no meetings held by the company with the employees to inform them of what was going on as far as I know.

PN188

And at 6.5 of the statutory declaration you've provided information about the demographic or the characteristics of the employees of G. James Glass?---Mm.

PN189

And there it says that those persons from a non-English speaking background as 25?---25. That's our members. I don't know how many other people there are, but I looked at our memberships lists and also I know the people because I've had quite a few meetings with them, more than - about nine meetings with these people over the time, the last six months, and those people are definitely of non-English speaking background and do, indeed, have extreme difficulty in understanding and speaking and writing English. I couldn't - I mean there's more than that but that's just our members, you know.

PN190

I have no further questions.

PN191

MR BELFIELD: Thank you.

<CROSS-EXAMINATION BY MR BELFIELD [11.33am]

PN192

MR BELFIELD: Ms May, did a majority of employees vote to support the making of this agreement?---According to the company - - -

PN193

No ?--- - - - I was not present.

PN194

No. You have a statutory declaration before you - - -?---Sorry.

**** MARGARET GABRIEL MAY XXN MR BELFIELD

PN195

- - - signed by Mr Harrison?---Show me which part that you want me to go to.

PN196

Go to 6.12?---Yes.

PN197

Now, you changed 6.1 from it being "yes" at the top; you changed that to "no" and then - - -?---Yes.

PN198

- - - as the standard pro forma requires it, if it is "yes" you then specify the steps and so on and so forth. Okay? So you added something there different to what you had received from AI Group. Correct?---Yes, that's correct.

PN199

And then you - did you change the subparagraph 2 where it says "yes" at the bottom?---Sorry. I'll have to have a look at the original one to see. I guess we did because we said "Yes, see attached letter".

PN200

Right. So - - -?---We - I agree that the - - -

PN201

Excuse me?---Yes.

PN202

So it says - that question is:

PN203

Where a decision was made by a vote, the majority of such employees who cast a valid vote decided or generally decided they wanted to approve the agreement. Yes.

PN204

?---Mm.

PN205

And Mr Harrison has signed that statutory declaration saying that there is a valid majority of employees that cast their vote in support of this agreement. That's correct?---That's what it says there.

**** MARGARET GABRIEL MAY XXN MR BELFIELD

PN206

That's right. So should we stop paying a wage increase to the minority of employees who didn't support the agreement?---That's not a part of the legislation to my mind as far as I know.

PN207

So it's fair to say that the statutory declaration that you have submitted as the one which you preferred to be put to this Commission does recognise that a majority of employees have cast a valid vote?---As far as the company informs me. I cannot give you definite answers on that because - - -

PN208

This is - - - ?--- - - - as I said I was not a party.

PN209

So Mr Harrison has signed something which he is not fully informed of?---As I said there is an attached letter which outlines our concerns.

PN210

Does that attached letter say that there wasn't a valid majority?---It says that the process used was not - did not give the opportunity for a majority of employees to fully understand the document being put before them.

PN211

So does that make that answer incorrect? Does that mean that it shouldn't be "yes". In fact, it should be "no"?---I don't know.

PN212

Well, you're giving evidence in relation to this statutory declaration?---Unfortunately I can't give you an answer to that because I'm not quite understanding the question.

PN213

It's very simple. Does the union say there was a majority of employees who cast a valid vote who decided and generally decided that they wanted to approve the agreement. Yes or no?---Yes.

PN214

I've got no further questions, thank you, .

**** MARGARET GABRIEL MAY XXN MR BELFIELD

PN215

THE COMMISSIONER: I have one question, Mr Belfield and you may wish to follow up on that.

PN216

In relation to these non-English speaking employees, what is your evidence in relation to concern with those employees? In relation to the agreement, what are you saying are their circumstances?---Their circumstances are that they have extremely limited understanding of - - -

PN217

But I specifically want to know in relation to this agreement. What have they said to you in relation to the agreement?---They are concerned that they formulated a log of claims. I worked quite closely with those members and also our members in the maintenance department who are English speaking to formulate a claim which they thought represented a valid claim on the company and that that claim was utterly ignored. And, in fact, when they were told they now had an opportunity to vote that opportunity was really illegitimate because the vote had already been taken in other areas. So they knew that their vote meant nothing when they voted on that agreement.

PN218

But have they said this to you?---Yes. Yes. They were very angry at the time.

PN219

And you're saying this, "But I'll deal with this". That's what they have said to you?---Absolutely.

PN220

And do you have anyone specifically or are you talking generally on behalf of those employees?---We had a meeting of the whole group and discussion was had around that meeting about what had happened. And I put to them, "Well, you now have the opportunity to have a vote. This is your right to have this vote. Whether we in operationally realised that it's really not going to change anything, you still are entitled to that vote". So - - -

PN221

So you say that the reason that they took the vote against this particular document is because the vote had been taken in the regional areas in the first instance?---And they had no knowledge of that taking place.

**** MARGARET GABRIEL MAY XXN MR BELFIELD

PN222

So that it's not specifically in relation to the processes. It's the fact that the valid majority had already - - -?---Well, I think the process is the problem because there was not a 14 day period for them to consider. They were just told that "This was it. It's been voted on. It's going to be certified. You can have your vote if you like otherwise - - -

PN223

When did that vote take place?---Sorry. I can't give you the exact date.

PN224

As I understand in the statutory declaration it was 28 November and that you got that first document on 31 October?---That's right, but that document was sent to us as a proposed draft - an offer by the company. And we subsequently initiated a bargaining period and had meetings to discuss with them our log of claims and they never at that first meeting said that they weren't intending to even consider our log of claims; that they were intending to put this to a vote. They said, "All right, we'll go away and consider what you've said". We come back to the second meeting and they said, "Well, the vote has been taken; it's a done deal."

PN225

How would you normally deal with those employees? You said that you used one of the employees to assist you to explain it?---Well, there's two employees who are confident to speak English and they relay the information back in Chinese and Vietnamese to their colleagues.

PN226

And is that the process you used with that particular document?---Well, that's the process I used to explain to them. By the time I could have a meeting with them to discuss the fact that this document was going to be the only document, we already - the vote had already been taken. So whilst I was discussing with them the content of the document, I was also discussing with them the fact that this is what has happened. So it was a combined - I'm not exactly sure what you're getting at, but I think you're trying to ask me was I explaining the document to them in a way that they could understand.

PN227

Well, my - - -?---Yes. Yes, I was.

**** MARGARET GABRIEL MAY XXN MR BELFIELD

PN228

I mean I would say my difficulty to Mr Moorhead is that this particular - and whilst there are more relaxed rules in terms of evidence this is particular - this is hearsay in relation to the position of the Vietnamese employees. I'm not denigrating you as a witness - - -?---No.

PN229

- - - but that is the manner in which I have to take that particular evidence and formulate what weight I attach to that, Mr Moorhead.

PN230

MR MOORHEAD: Yes, Commissioner. We understand that that's the evidence we've provided. And if that is hearsay evidence the Commission can give it the weight that it believes is fit.

PN231

THE COMMISSIONER: Is there anything out of that, Mr Belfield?

PN232

MR BELFIELD: No, thank you, Commissioner.

PN233

THE COMMISSIONER: Ms Austin?

PN234

MS AUSTIN: No, Commissioner. I have nothing to add.

PN235

THE COMMISSIONER: Ms D'Ath?

PN236

MS D'ATH: No, Commissioner.

PN237

THE COMMISSIONER: Do you have any further questions, Mr

PN238

Moorhead? Oh, Mr Prior, I'm sorry. I keep - - -

**** MARGARET GABRIEL MAY XXN MR BELFIELD

PN239

MR PRIOR: No, Commissioner. I have nothing further.

PN240

THE COMMISSIONER: I know normally that you will step forward if you have something to say.

PN241

MR PRIOR: Indeed, Commissioner.

<RE-EXAMINATION BY MR MOORHEAD [11.42am]

PN242

MR MOORHEAD: When you had the meeting to take the vote, had those employees been provided with the document? And what document - or if they had, what document had they been provided with?---I had a copy of this document which - - -

PN243

Which document are you referring to? Sorry?---This one. The original one, this one. That's exhibit 1.

PN244

Is that one exhibit 1?---That's exhibit 1. I had a copy of this

PN245

document which is the document that I had been speaking to in all my meetings with them. They were - they understood the content of this document but they understood it as being an offer from the company and that is what all our members understood that to be.

PN246

So is that the document that you explained to them or did you try and explain that to them?---Yes, I did. Yes.

PN247

Okay. And they voted on that document?---Yes, they did.

PN248

Okay. And have they been provided with a copy of any other document?---Not to my knowledge.

**** MARGARET GABRIEL MAY RXN MR MOORHEAD

PN249

I have no further questions, Commissioner.

PN250

THE COMMISSIONER: At the risk of re-opening but just in relation to that final point: could it have been that those particular - your members were provided with this final copy of the agreement, exhibit 2, that was used for the purposes of voting and you were unaware of that - - - ?---No, I don't believe so.

PN251

- - - in that month period?---No, no. My information is I did attend the workplace after Christmas this year in January to explain to them, to discuss with them whether we should sign this agreement or not. And at that time they had never been provided with any other document other than the one. They had never seen any other document subsequent to any of our meetings before Christmas before the vote was taken.

PN252

But - - -?---So I can be quite sure that they haven't been provided with a document, no.

PN253

But wasn't your union opposing it prior to Christmas?---Yes, we were, but I had a subsequent meeting - when this actually arrived in our office with the stat dec and all that which wasn't till after Christmas for us to sign, I went out and had a meeting with them to ask them whether we should sign it or not, or what we should do. And at that meeting, I explained to them and what we were proposing to do to sign it in order so that we could then stand up and express our concerns to you. And they agreed that that was what we should do and I said, "But in the event that it is certified should we be a party to it, given the fact that if there would be a dispute arising from this agreement and we weren't a party to it, we couldn't represent you if there was an individual grievance or something as a result of it." And they said, "Well, given that, you should be a party to it". So that is what we have proceeded to do.

PN254

Thank you. Mr Belfield, did you have any other questions arising out of that?

**** MARGARET GABRIEL MAY RXN MR MOORHEAD

PN255

MR BELFIELD: No, thank you, Commissioner.

PN256

THE COMMISSIONER: Any other party? No. All right. You're excused, thank you for giving your evidence?---Thank you.

<THE WITNESS WITHDREW [11.45am]

PN257

THE COMMISSIONER: Do you have any submissions in relation to that, Mr Moorhead?

PN258

MR MOORHEAD: Yes, we do, Commissioner. The submissions that we wish to make are - we'd seek to rely on those that were made before we called Ms May in evidence. In our submission this document has not - the document which was before you today, Commissioner, has not been explained to employees from a non-English speaking background. There has been no attempt made to accommodate those difficulties. They weren't even provided with the document or a document on which they were supposed to have voted.

PN259

What they were provided with is a draft document that was presented to our organiser, which we believe was a draft document which we were told was the document to be agreed on, and that that document was - and in the short time available to her, Ms May made an attempt to explain the contents of that document. However, that document had not been available for 14 days and it had not and particularly in another language or any form of translation or have there been any forum at which these employees could ask questions about the agreement or to deal with their concerns.

PN260

And the agreement which was put to - that draft agreement varies significantly from the agreement which is before you today, Commissioner.

PN261

The first instance is that the AMWU is no longer expressed to be a party in that agreement. However, in both the agreement which Ms May explained to - which Ms May explained to the employees and which was - and the agreement which we were originally given in January as the agreement which was voted on, contained the AMWU as a party. And when that agreement was made by a vote, the AMWU was a party.

PN262

As well in that transition from the document which - the exhibit 1 to the document that you have been given today, Commissioner, there somehow has been the addition of a long service leave clause which was not in that proposed agreement. Commissioner, we have concerns about that long service leave clause. That long service leave clause allows for the cashing out of long service leave by agreement between the employer and employees.

PN263

The Metal Engineering and Associated Industries Award which is the underpinning award for our employees actually prohibits that, prohibits the cashing out of leave, and instead provides for a rigorous regime for the taking of leave instead. Commissioner, the union does propose to be a party to the agreement if the Commission finds that the requirements of the Act have been met.

PN264

We have raised concerns here today, but the union - Mr Harrison, on behalf of the union, has signed the agreement. And that signature has been endorsed by the Administrative Committee of the AMWU. And as well as that the direction given to the union by its members at the Kingsford Smith Drive site is that they wish the union to be a party to that agreement and to represent them in the operation of that agreement during its life.

PN265

Commissioner, in relation to the evidence provided by Ms May, well, admittedly a large proportion of that is hearsay when it comes to the opinion of members at that site. However, the evidence of Ms May's meetings with managers at G. James Australia is not hearsay.

PN266

THE COMMISSIONER: Sorry, the evidence of managers?

PN267

MR MOORHEAD: Sorry, the evidence of Ms May's meeting with managers at G. James Australia is not hearsay. And in relation to that hearsay the evidence which the Commission may consider hearsay is that the other parties, particularly the employer party, have had an opportunity to cross-examine Ms May on that evidence and chose not to. They have not challenged Ms May on that evidence, and if they do challenge that evidence that should have been put to her. So, Commissioner, we believe that there is - that the Commission, it is open to the Commission to give weight to that evidence.

PN268

So, Commissioner, we submit that these serious concerns that we have put before the Commission should bring the Commission - sorry, provide serious consideration as to whether this agreement and the making of this agreement has met the requirements of the Act in terms of the valid majority approval of the agreement required by section 170LJ and under section 170LT of the Act.

PN269

THE COMMISSIONER: Mr Moorhead, on that point, given that your submission is that you are seeking to be bound, to the union seeking to be bound by this particular agreement, but as I understand it your submissions in the main go to the process of finally validating the agreement, and given that Mr Harrison has, in fact, signed the agreement I understand what you say about his amended responses in the statutory declaration.

PN270

So I understand your position, if in the instance that I determined that on the basis of those alleged vulnerabilities in the process that the agreement should not be certified, given your position and the signing of the document, what is it that you are then seeking, that the entire vote be retaken, that the agreement be re-negotiated, considering that we have a number of other unions here, they are in support of the actual agreement, what is the position of your union?

PN271

MR MOORHEAD: Well, Commissioner, we - if the Commission does decide not - decides not to certify the agreement today, that does leave options open to the parties. The options open are to start to re-negotiate a further agreement, which I am not sure that other union parties and the employer may appreciate as a convenient option. And they may decide and it is open to the employer, to have the vote again and do it properly. To inform all the employees of G. James Australia, who are going to be subject to this agreement, of what the agreement contains, of how it affects their working conditions and how it will operate. So, Commissioner, we believe that is the option open to the parties if the Commission decides not to certify the agreement.

PN272

THE COMMISSIONER: Well, I think that particular submission is only coming from your union, isn't it?

PN273

MR MOORHEAD: Yes, Commissioner.

PN274

THE COMMISSIONER: All right, thank you.

PN275

MR MOORHEAD: So we - - -

PN276

THE COMMISSIONER: When I say that I mean in relation to your members not understanding at all, or not having the particular document for the appropriate period.

PN277

MR MOORHEAD: Sorry, Commissioner?

PN278

THE COMMISSIONER: As I understand that submission in relation to alleged deficiencies of the process, is only coming from your particular union?

PN279

MR MOORHEAD: Yes.

PN280

THE COMMISSIONER: And that would be 40 members of the overall work-force, which I think is over 900.

PN281

MR MOORHEAD: They have been our submissions. But I think the evidence of Ms May also shows that at that meeting that was held which discussed the - where the agreement was discussed and the process was discussed, that there were also AWU members. I think that was Ms May's evidence. But we're not making submissions about - our submissions are that they were present, but, I mean, we're not in a position to make submissions as to what they communicated because they would have communicated with their relevant official, not Ms May, so we don't - - -

PN282

THE COMMISSIONER: Let's not complicate it any more, Mr Moorhead.

PN283

MR MOORHEAD: Yes, Commissioner. Any more than it already is. So, Commissioner, on that basis we put those serious concerns before the Commission today and while we do seek to be a party to the agreement we also wish the Commission to take into consideration our serious concerns when determining whether this agreement meets the requirements of the Workplace Relations Act.

PN284

THE COMMISSIONER: Thank you. Mr Belfield, I think that that would be the order, then? That I would hear from you in response to Mr Moorhead's submissions, but also your submissions in relation to the certification of the particular agreement.

PN285

MR BELFIELD: Thank you, Commissioner. It's taken some time to get to this point.

PN286

THE COMMISSIONER: I concur.

PN287

MR BELFIELD: Look, I'll give the union the benefit of the doubt, that they would really like to be party to this agreement and that there's been some positions taken in principle about not being I guess part of the group of unions that have traditionally represented the members at that plant or at G. James Queensland, sorry, and I say this because in the last at least four EBAs that the company has made with the parties the AMWU have not been involved. They have not sought to be involved, they have not turned up and say, "We wish to represent our members." But in any case, the company has included the AMWU as a party to that agreement and the AI Group has circulated the documents and Mr Harrison duly signed those document and we've had them approved before this Commission.

PN288

Now, I have it from Mr Keune that approximately in the last six years, I think that would cover, that the AMWU had not shown a great deal of interest, if any, in the proceedings in negotiations. Obviously the primary parties are the Operative Painters and Decorators Union, Mr Paul Waters in particular. I think that's covered by the CFMEUs general umbrella now, and Frank Chambers, the old Iron Workers organisation, now part of the AWU. And so that relationship goes back some time with the extrusion operators and the glass workers and the process workers for glass assembling. It's, you know, quite clear that the AMWU has had limited membership there, and that's reflected, I guess, in the way they have not identified G. James as a priority in their representation.

PN289

So it was somewhat disturbing to be addressed by the AMWU at a meeting that Ms May attended in December that - in fact it was a bit earlier than that. But in any case, suggesting that the whole process was flawed and the company had been underhand and whatever. There was quite extensive attack made by Ms May against the officers of the company. Now, in response to the letter that was provided to the company on 28 November, Mr Lewis Sarigosi - and I'll just tender this. In fact, I'll just tender a couple of documents, just to show the process. So in relation to the meeting where Ms May put her concerns to the executive of G. James, the letter went back to Mr Harrison dated 5 December, and it states that:

PN290

We disagree with your comments in relation to the process used to negotiate the 2001/2002 ...(reads)... the Australian Industry Group will remove reference in the agreement to the AMWU.

PN291

Now, Commissioner, I think that that is a fair position that the company took. The union attacked the process. It indicated quite strongly in its letter of 28 November that they regarded the matters as serious indicators of a flawed process, etcetera, etcetera. So we said, "Well, you obviously don't want to be party to the agreement. We'll take you out." And after that letter was received by the union, we then received the letter which is dated 20 December - sorry, the 7th.

PN292

THE COMMISSIONER: Mr Belfield, the letter of 28 November that you're referring to - - -

PN293

MR BELFIELD: I think that was attached to some - I think that was tendered earlier.

PN294

THE COMMISSIONER: I just want to be sure that this is - it has a series of dot points in it?

PN295

MR BELFIELD: Yes, that's it. That's the one.

PN296

THE COMMISSIONER: All right. Yes.

PN297

MR BELFIELD: So that letter from the company on 5 December is in relation to that letter. And then after the union received the letter from the company of 5 December the company received back a letter saying that - referring to the letter of 5 December -

PN298

... and advise that the AMWU will continue to represent our members in any matter pertaining ...(reads)... remain a signatory and should forward a copy when available. Any further inquiries should be directed to Maggie May, State Organiser -

PN299

etcetera, etcetera. Now, I received a copy of that letter, as you can see, and I was - it's fairly ambiguous in the sense that - well, you know, we weren't going to be a party to the agreement and now we're going to be. So I read that that the union is to remain a signatory and forward them a copy as soon as possible. I did that. The copy they received was - and by the way, Commissioner, up until that point AI Group had been processing the paperwork, given that the vote was on 28 November. We've distributed the paperwork around the other unions, which are five other unions, and so we received this advice towards the middle of December.

PN300

The copy that the union - I have to try and recall how it happened. I think the AMWU has been in and out and in a couple of times, so I'm not sure if the paperwork that went out originally had the AMWU deleted. I believe it had. So what happened is that, given we received the letter on 7 December saying, "We want to be party - in fact, we want to be signatories to the agreement," I then had to organise all the paperwork so that the cover sheets of the application and the statutory declarations in the relevant pages re-inserted the AMWU. So that paperwork went around the traps. Christmas time came and went, new year and so on, and the paperwork that I received back from the union was, I think, exhibit 2. That was the one that was just tendered by - here we are. Yes. The document that is exhibit 2 - - -

PN301

THE COMMISSIONER: Yes.

PN302

MR BELFIELD: - - - was received by me and I thought, "Oh, that's good. This will be nice and straightforward," given that I'm probably dealing with 10 EBAs at any one time. And then I went through to the relevant sections, part 6, and I clearly saw that the union had no intentions of having this agreement succeed before the Commission. Now, I made a decision after speaking to Mr Keune that we couldn't possibly file this agreement - this statutory declaration, along with the other documents, because it clearly contested the grounds on which the agreement was made. It wasn't a genuine application in support of the other parties to the agreement. It sought to ambush and hijack the whole process. So it was removed. We didn't even file it so we could hardly say it was removed, but what we did do was we had to go back to the other parties and say, "Look, we're going to have to change those filing papers. The AMWU references are incorrect. We will remove those." So we had all that paperwork.

PN303

So, Commissioner, if there's anything about my submission, it clearly shows that we should have grounds for extension beyond that of the 21 days.

PN304

THE COMMISSIONER: I'll hear you on that.

PN305

MR BELFIELD: But what I'm saying is that the company remained open to the AMWU. We got a letter from the saying that they wanted to be a party to it after the discussions on 28 November seemed to indicated that they did want to be. So the paperwork went out to them. We then received back, with no prior warning whatsoever from them - no phone call to say, "Oh, by the way, we're going to send you a complete Claytons statutory declaration." So when it turned up I was quite - I guess I was disappointed that we were still locked into this ridiculous situation where they say they want to be a party but they wanted to attack from within, like some sort of Trojan horse. And I wasn't prepared to allow that to happen.

PN306

But in any case, they've turned up. They've sought leave to intervene. We're opposed to it, and you've said that you would reserve your decision in that regard. I simply say that they shouldn't be allowed to intervene because they've showed their bona fides. They are simply trying to mess up the system for everyone else. Going now to the agreement proper - - -

PN307

THE COMMISSIONER: I might just, Mr Belfield, mark those documents that you've - - -

PN308

MR BELFIELD: Yes.

PN309

THE COMMISSIONER: The letter of 5 December will be exhibit 4, and the letter of 7 December exhibit 5, and I will, as I do have that letter of 29 November on the file - it's been provided from the AMWU - I'll mark that as exhibit 6.

EXHIBIT #4 LETTER FROM G JAMES AUSTRALIA DATED 5 DECEMBER

EXHIBIT #5 LETTER TO G JAMES AUSTRALIA DATED 7 DECEMBER

EXHIBIT #6 LETTER DATED 29 NOVEMBER

PN310

MR BELFIELD: Thank you. Turning now to the agreement, Commissioner, under Section 170LT of the Act, the Commission must certify the agreement if - and must not certify the agreement unless it is satisfied that the requirements of this section are met. And it goes through the issues of no disadvantage test, public interest test and the processes of proof and whether or not the valid majority of employees employed at the time genuinely approve the agreement. And Section 170LU talks about grounds on which the Commission may refuse.

PN311

There are six statutory declarations before you, Commissioner, all of which attest to the process being in accordance with the Act, all of which indicate that the employees who are subject to the agreement were provided with an opportunity to assess the terms of that agreement and make a vote. In fact, the evidence from Ms May was also that the metal workers regarded that there was a genuine or valid majority of employees in support of the agreement; 963 employees. So we say that there is no doubt that the process on balance is not such that could possibly be refused by the Commission.

PN312

There was a point made about the long service leave, and I need to address that. As you can see on that letter that was tendered, exhibit 1, the cover letter to the draft agreement referred to allowance for state award long service leave. Commissioner, this was a matter raised by probably the CFMEU and the AWU that, given the recent introduction in the state jurisdiction of improved long service leave arrangements for state award and award free employees, and given that the agreement does cover both state award and federal award employee, as you can see by the parent award reference, it was sought by the unions that the employees under the agreement would also be given a uniform condition, ie that condition on the state jurisdiction.

PN313

And that means that employees can access their 13 weeks long service leave after 10 years instead of after 15 years, and also in certain circumstances can access their payout of long service leave after seven years. So the pro rata was improved. Now, where the requirements that there be no disadvantage on balance comes in, I think it would be fair to say that given that this agreement contains a 4 per cent wage increase and that there was an introduction of improved long service leave arrangements, the fact that some employees may seek the employer's approval to cash in their long service leave would hardly, I believe, say that the agreement disadvantages on balance the employees.

PN314

I believe that that is inappropriate. There was a procedural flaw in that the words that are contained in the proposed agreement, that is the words relating to long service leave, were not contained in the document that was prepared for the employees. However, there is clear reference on the document on 31 October that there would be such a reference, and I think on balance, Commissioner, it would be inappropriate for the agreement not to succeed, given that small point of process. I've already addressed you on the extension of time, but I do wish to just refer you, Commissioner, to a decision of Munro J, and I'll just tender that, if I may.

PN315

THE COMMISSIONER: I'll mark that as exhibit 7.

EXHIBIT #7 DECISION OF MUNRO J

PN316

MR BELFIELD: Thank you. Commissioner, I won't go into much detail on this. You probably are familiar with this, and the metal workers certainly are. The observations of Munro J in a matter where a union who was listed as a party to the agreement but hadn't signed it, sought to have the matter adjourned because some of the history of the negotiations were inappropriate or indeed there was some aspect about the content of the agreement that that particular union was not satisfied with. But in any case, his Honour looked at the Act and in particular Sections 170LT and 170LU, and if I draw your attention to paragraph 11, his Honour says:

PN317

Primarily I am obliged to apply the Act. If I were to adopt the union's desire for deferment ...(reads)... to how the Act should be applied to the circumstances that have arisen.

PN318

At paragraph 12 he goes on:

PN319

Section 170LT says that in relation to applications made to the Commission in accordance with Division 2 ...(reads)... according to the terms and conditions set down.

PN320

And over on paragraph 18, Commissioner, I again quote:

PN321

In summary, it appears to me that the obligation on the Commission is to simply act to ...(reads)... in which I am to be satisfied as to the elements of that condition and discretion.

PN322

And if I may just paraphrase, Commissioner, his Honour also suggested that whilst there were some minor procedural issues that were not on all fours with the Act, he was not prepared to adjourn the matter or refused to certify, given that they would not undermine the intent of that agreement.

PN323

Commissioner, on those grounds, I would simply ask that the application be certified. I believe, as you've already heard from the other parties and you have statutory declarations before you, that that would be in line with their wishes. I would ask that you, in your decision in relation to the intervention, that you reject the application to intervene by the union. They have provided nothing more than a disruptive element in this - these negotiations and have simply shown their true colours that they do not care to be a party to this agreement, if the Commission pleases.

PN324

THE COMMISSIONER: Mr Belfield, just so I can get some clarification. The total size of the workforce, from memory of her statutory declaration it was somewhere over 900.

PN325

MR BELFIELD: Yes.

PN326

THE COMMISSIONER: And do you have any information as to what the valid majority was?

PN327

MR BELFIELD: The - in the non-metropolitan area, there were 326 for and four against, and we don't have the details of the metropolitan area. The unions conducted those votes on a location by location basis, but we've been obviously advised by those unions that, other than the Metal Workers, that there was a, we believe, a unanimous vote.

PN328

THE COMMISSIONER: Thank you. Miss Austin - Miss D'Ath.

PN329

MS D'ATH: Thank you, Commissioner. Commissioner, look, the AWU acknowledges the right of the union, upon a vote being conducted at a work site, to determine themselves whether they are to become a party to an agreement or not, and those decisions have to be made on a daily basis, based on a number of factors. It is rather odd to be arguing both that an agreement should be rejected at the same time as wanting to be bound by the agreement. Generally a decision is made one way or the other by a particular union.

PN330

Having said that, I mean, you have, as has been stated by the AIG, a number of statutory declarations before you seeking the certification of the agreement stating that the agreement meets the relevant provisions of the Workplace Relations Act. It would be the AWUs submission that nothing has been put before this Commission today that should waiver the Commission's views on what has already been provided for in those statutory declarations.

PN331

What is certainly of concern to the union is one of the requirements of the Commission is to consider the public interest and obviously the no disadvantage test. What you've heard is that the Metal Workers' members had explained to them that they were signing the agreement for the purpose of coming to the Commission today and advising the Commission of their concerns. Now, advising the Commission of your concerns is a lot different to coming to the Commission and asking for the Commission to reject the application before it. And we've heard no evidence that the employees have actually had explained to them the ramifications of rejecting this agreement.

PN332

For example, the fact that these employees have been getting a wage increase since November 2001 under this agreement, on the preface that the parties are to support the document and will have the agreement certified before the Commission in the terms agreed to. So, as far as a public interest test, the AWU submit it would be against the public interest to reject the agreement because it would lead to employees who are currently getting a wage increase possibly having that wage increase cease and no certainly as to what will happen in the future as far as an enterprise bargaining agreement.

PN333

The AWU does support the agreement and it has provided a statutory declaration saying that it supports the agreement, and as submitted, there's certainly nothing that's been put today that would waiver those views. In relation to the long service leave, the AWU doesn't like the cashing out of long service leave. We've certainly not kept that hidden from any parties, however, simply the insertion of such a provision in a certified agreement does not lead to the agreement failing the no disadvantage test. Nor could it.

PN334

I mean, this is a provision that's been inserted into a state Industrial Relations Act and, you know, to argue that point would be to say that the state government has introduced a provision that as soon as certified - put into a certified agreement immediately makes every certified agreement fail the no disadvantage test. It just wouldn't stand up as far as a logical argument. At the end of the day, you have to look at the agreement as a whole and as - the agreement as a whole, it is the AWUs submission, meets the relevant provisions and does not disadvantage employees.

PN335

On that basis and also in support of the extension of time and the reasons given for the extension of time, we would certainly commend the agreement to the Commission and ask that it be certified from today's date. If the Commission pleases.

PN336

THE COMMISSIONER: Mr Prior.

PN337

MR PRIOR: Thank you, Commissioner. I'll be very brief, except to say that the TWUs position would simply be that on the balance of convenience, we would support the submission of the employer and the other unions that are party to the agreement, and we believe in the condition that the agreements be put to the Commission today. We rely on the statutory declarations as filed and we commend the Commission to you for certification today.

PN338

THE COMMISSIONER: All right. Thank you. Mr Moorhead.

PN339

MR MOORHEAD: Thank you, Commissioner. The first thing, Commissioner - - -

PN340

THE COMMISSIONER: Now, but - just - this order seems to be, I understand - sorry, I think Miss Austin, you've made - have you made your - you've had the ability to make a submission, haven't you?

PN341

MS AUSTIN: I have, Commissioner. We support the agreement to be also certified.

PN342

THE COMMISSIONER: And Mr Moorhead, you're going to respond to me now in relation to the application for certification on that submission, and Mr Belfield will have the ability to respond.

PN343

MR MOORHEAD: Okay. Thank you, Commissioner.

PN344

THE COMMISSIONER: If necessary.

PN345

MR MOORHEAD: Of course, Commissioner. Commissioner, in relation to the agreement provided - the decision of Munro J provided to you by Mr Belfield, our submission is that that decision is of little assistance to you today. What that decision provides is that in that - what the facts of that case were that the union in question, the AMWU, was seeking that the certification hearing be adjourned whilst other matters were dealt with by negotiation, and what Munro J decided in that case was that - at it's at the paragraphs 12 and 18 which Mr Belfield will refer you to - was that the Commission - if the Commission is satisfied that the requirements have been met, the Commission is to certify the agreement.

PN346

We're not asking you today, Commissioner, to adjourn an agreement, or not to certify an agreement, which has met the act. What we are arguing, Commissioner, is that our concerns raise questions as to whether the agreement has met those requirements. So we believe that this decision of Munro J can be distinguished from the circumstances which are before you today.

PN347

THE COMMISSIONER: Now, Mr Moorhead, you're suggesting that, even if fact that's determined, that it may be that then the process is returned to the workplace for either renegotiation or, at least, re-voting?

PN348

MR MOORHEAD: Well, that is the options open to the parties to the agreement, that they - - -

PN349

THE COMMISSIONER: Because I think that has some analogy to Munro Js decision in terms of where he talks about the practicalities of an agreement that's been bargained in good faith between the parties.

PN350

MR MOORHEAD: But, Commissioner, if I can take you to paragraph 11 where Munro J talks about the industrial practicality, the decision actually is not in favour of industrial practicality but against it. The AWUs argument in that case was that the industrial practicality required that the Commission not certify the agreement at that hearing, but adjourn it while matters of industrial practicality be dealt with by negotiation. And what the Commission, as constituted by Munro J provides, is that, well, while there are those circumstances of industrial practicality, which he believes has appeal, he says that the consequence of that is that the company will face loss of the agreement.

PN351

And then he goes on in paragraph 12 to refer to section 170LT, which mandates the Commission's decision. So what - in our submission, the ratio of that case is that the Commission is mandated to make a decision as to whether the requirements of the act and, in particular section 170LT, have been met, and that those considerations of industrial practicality should not prevent that decision under section 170LT being made. And that's what we're seeking before you, Commissioner. We - while we agree there are concerns with practicality that would result from the Commission not certifying - not certifying the agreement, we don't believe that that should prevent the Commission from certifying - from refusing to certify the agreement.

PN352

There were submissions made to you, Commissioner, that if the Commission was not to certify the agreement, it wouldn't be in the - they would not meet the public interest. However, the requirement that the public interest be met in section 170LT subsection 4, firstly in relation to whether the - that the certifying of the agreement is not contrary to the public interest, and does not mention any concern that certifying the agreement is in the public interest, but what that section provides is that - section 170LT says unless all of the requirements of that section are met, that Commission should refuse to certify the agreement.

PN353

And, in our submission, even if it's not in the public interest for the - even if the Commission believes that - is of the opinion that it is in the public interest to certify this agreement, it still hasn't met section 170LT(5) which requires that the majority must have approved the agreement and, in that case, should not be certified. So - so, Commissioner, we - so - - -

PN354

THE COMMISSIONER: But I think there is a valid majority before me, Mr Moorhead.

PN355

MR MOORHEAD: Well, Commissioner, we don't believe that the valid majority in accordance with section 170LJ - LJ has been met, and it took - and even section 170LJ(5) talks about generally approving the agreement. If I can refer you to section 170LJ, Commissioner, it talks - the requirement there of section 170LJ(3) talks about the requirements for a general approval, and that being that the employer must ensure that the persons are given, or have access to, the agreement in writing and that the terms of the agreement are explained to all the persons.

PN356

So, Commissioner, in our submission, while there is a vote of more people in favour than against, that that's not a valid - a genuine approval of the agreement, because those requirements for 14 days notice - 14 days possession of the document and - sorry, 14 days access to the documents, and the requirement that the document be explained to the employees, has not been met under section 170LJ.

PN357

THE COMMISSIONER: But that submission is only before me in relation to the 40 metal workers - or 40 members of your union - - -

PN358

MR MOORHEAD: Yes. It is, Commissioner.

PN359

THE COMMISSIONER: - - - as I understand it, Mr Moorhead.

PN360

MR MOORHEAD: But - yes, Commissioner. It is only in relation to those employees. However, it says that - section 170LJ subsection 3 is quite clear, Commissioner, where it says:

PN361

That at least 14 days before any approval is given, all the persons either have, or have ready access to the agreement in writing.

PN362

And it's - Commissioner, it's not a case where one of our members was away sick on this day. That whole work site at Kingsford Smith Drive was not provided with a copy of the agreement.

PN363

THE COMMISSIONER: As far as Miss May can recall.

PN364

MR MOORHEAD: As far as Miss May can recall. And there's been no - and the employer herself has not suggested that it has been. There's been no suggestion from Mr Belfield or anyone else today that those employees have been. So, Commissioner, we would - with those concerns in mind, we believe that there - and in section 170LT, Commissioner, under subsection (7), it talks about the requirement that the explanation of the terms must have been in an appropriate way in regards to the person's particular circumstances and needs, and subclause (b) of that subsection specifically refers to persons from a non-English background.

PN365

So there's specific reference and a physical requirement of the Act that persons who are from a non-English-speaking background should have that document explained to them in an appropriate manner and, in our submission, that hasn't been met. So, Commissioner, we have those serious concerns and we don't believe the requirements of the Act have been met in this case.

PN366

THE COMMISSIONER: Thank you, Mr Moorhead. Mr Belfield?

PN367

MR BELFIELD: Commissioner, only to say one thing. In good faith, G. James considers that the AMWU members who are a clear minority in the company will continue to be covered by this agreement both informally or formally, take it as you wish. We will do so unless the union want us not to do so. That is all I have to say. Thank you.

PN368

THE COMMISSIONER: I would indicate, not that I wish any parties - to deter any parties from attending these processes, but I would indicate that NUW took the option today of providing their support for the agreement in terms of a fax to the Commission, and that they do support the certification of the above-mentioned agreement today. So I would reserve my decision and indicate it in the short term in written form. Thank you for your patience.

ADJOURNED INDEFINITELY [12.28pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

MARGARET GABRIEL MAY, SWORN PN127
EXAMINATION-IN-CHIEF BY MR MOORHEAD PN127
EXHIBIT #1 COPY OF AGREEMENT ENTITLED G. JAMES AUSTRALIA PTY LIMITED CERTIFIED AGREEMENT 2002 WITH PIECE OF CORRESPONDENCE FROM MR SARAGOSKI DATED 31/10/2001 PN142
EXHIBIT #2 DOCUMENT FORWARDED TO AMWU WITH STATUTORY DECLARATION ATTACHED FOR SIGNATURE PN166
EXHIBIT #3 STATUTORY DECLARATION OF MR HARRISON PN177
CROSS-EXAMINATION BY MR BELFIELD PN192
RE-EXAMINATION BY MR MOORHEAD PN242
WITNESS WITHDREW PN257
EXHIBIT #4 LETTER FROM G JAMES AUSTRALIA DATED 5 DECEMBER PN310
EXHIBIT #5 LETTER TO G JAMES AUSTRALIA DATED 7 DECEMBER PN310
EXHIBIT #6 LETTER DATED 29 NOVEMBER PN310
EXHIBIT #7 DECISION OF MUNRO J PN316