D2001/20, Transcript of Proceedings [2003] AIRCTrans 3301 (6 August 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
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TRANSCRIPT OF PROCEEDINGS


O/N WT0597
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS

D No 20 of 2001

APPLICATION UNDER SECTION 204 OF THE
ACT BY THE AUTOMOTIVE, FOOD, METALS,
ENGINEERING, PRINTING AND KINDRED
INDUSTRIES UNION FOR CONSENT TO ALTER
ORGANISATION'S ELIGIBILITY RULES

PERTH

10.06 AM, TUESDAY, 22 JULY 2003

Continued from 24.4.03

PN422

MR A. LAWRENCE: I seek leave to appear on behalf of the AMWU in this matter and appearing with me is Mr Sechinidis, initial A.

PN423

MR M.C. BORLASE: I appear on behalf of the Chamber of Commerce and Industry.

PN424

THE SENIOR DEPUTY PRESIDENT: Any objection to Mr Lawrence having leave?

PN425

MR BORLASE: No, sir, I don't.

PN426

THE SENIOR DEPUTY PRESIDENT: Leave is granted, Mr Lawrence. Yes.

PN427

MR G.T. MILLER: Excuse me, sorry.

PN428

THE SENIOR DEPUTY PRESIDENT: Yes, I am sorry. I didn't realise you - - -

PN429

MR MILLER: I appear on behalf of the Motor Trades Association of Western Australia.

PN430

THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Miller. Do you have any objection to Mr Lawrence having leave?

PN431

MR MILLER: No, not at all, sir.

PN432

THE SENIOR DEPUTY PRESIDENT: Yes.

PN433

MR LAWRENCE: Your Honour will be well aware that the purpose of the proceedings for the balance of this week were to be devoted to taking part of the evidence and submissions of the AMWU and the remaining objectors in this matter, being the AWU and the Western Australian Chamber of Commerce and Industry. I am pleased to be able to advise the Commission that in relation to the AWU, the AMWU has reached agreement with that objector and I am instructed a copy of that agreement was forwarded to the Commission late last week.

PN434

THE SENIOR DEPUTY PRESIDENT: I have now received it, yes. Do you have an original at all that you are seeking to tender?

PN435

MR LAWRENCE: We will forward that to the Commission in the next couple of days, your Honour. Your Honour, it is a memorandum of agreement, as been signed, between the AMWU and the AWU and if I can take the Commission to clause 5 of that agreement, which is pertinent. The Commission will there see that the parties agree that by this application, that is the AMWU will change application that is currently before the Commission. The AFMEPKIU will not seek to recruit or represent industrially any person who is and this relates to awards in Queensland, which are defined in clause 4(i) of the award, your Honour, being the Garage and Service Station Attendants Award, the Van Salesmans Award and the Motor Vehicle Salesmans Award and by this agreement the AMWU gives certain undertakings.

PN436

Firstly, that they will not seek to recruit or represent industrially any person who is primarily employed to undertake detailing work that is not connected or incidental to the preparation of a motor vehicle for sale or auction and that person is covered by the awards listed in clause 4(i) and is a member of the AWU as of 17 July 2003. In respect of that part of the AWUs objection, going to the state of Western Australia, that is dealt with at (ii) of clause 5 by this application and the AFMEPKIU will not seek to recruit or represent industrially any person who is employed to undertake work that is not connected or incidental to the preparation of a motor vehicle for sale or auction and that person is covered by the award listed in 4(ii), that being the Motor Vehicle, Service Station, Sales Establishments, Rust Prevention and Paint Protection Industry Award WA and that person is employed by an employer listed in attachment (a) to the agreement which there contains a number of employers as set out and is a member of the AWU as at 17 July 2003.

PN437

There is a proviso which operates, your Honour, that nothing in that particular clause would operate to limit the right of the AMWU to recruit and represent industrially any person who is or who may be eligible to be a member of the AMWU, as it is commonly known, otherwise than by way of this application. So that is the agreement that has been entered into, your Honour, by the AWU and the AMWU and on that basis the AWU will withdraw, if it has not already done so, its objection to the application currently before the Commission.

PN438

Your Honour, in respect of the other outstanding objection, that of the WACCI, we were advised yesterday afternoon by Mr Borlase that the WACCI would be withdrawing its objection to the AMWU rule change application and before I move on to other matters it may be appropriate to hear from Mr Borlase in relation to that, your Honour.

PN439

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Borlase.

PN440

MR BORLASE: Yes, thank you, Your Honour. I do apologise for the lateness of this, however we only received a copy of the agreement between the AWU and the AMWU on Friday and initial discussions with the local branch of the AWU indicated that they were concerned that what had been entered into by their federal office at 5(ii) did not actually reflect the protection that they thought was being entered into. And that was confirmed again to me yesterday, that they held those particular concerns, however they also informed me that they were effectively bound by their national office in terms of what had been signed.

PN441

The protection that is provided in 5(ii) is a lot narrower than they had envisaged the instructions that they had given their national office. The award which is referred to is actually a common rule award not a named respondent award in the fashion that awards are in Western Australia. So their concern firstly was that they had members employed by employers who were covered by the award by common rule who would not be protected by this particular agreement and also, I think, that they were concerned that they may not be receiving the same degree of protection in terms of the Queensland situation of people who were undertaking detailing work, which is not specifically referred to obviously in the Western Australian agreement, as well as other type of work which may be associated and covered by that particular award, being the Motor Vehicle, Service Station, Sales Establishment, Rust Prevention and Paint Protection Industry Award.

PN442

However, sir, as I've indicated, whilst they had those concerns and obviously that left us with concerns of potential for future demarcation disputes which may arise between the AWU and the AMWU, given the case law, which obviously you would be extremely well aware of, and matters which you've outlined in applications such as that by the National Tertiary Education Industry Union, while we feel that we have the capacity to be able to demonstrate to the Commission that there are, pursuant to section 204, unions which employees may more conveniently belong to and are already covered by awards of this state, without the unions actually becoming involved in the matter to demonstrate their own individual capacities to more effectively represent those people, we feel that we would be putting the Commission to an unnecessary expense and time to hear the matter, given that we cannot lead that evidence from those unions in terms of that particular capacity.

PN443

On that particular basis, whilst recognising that we do have those particular concerns about future potential demarcation disputes, it is not the - it is now the intention of the Chamber not to further pursue the objection which was previously lodged. May it please the Commission.

PN444

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Miller, as I apprehend it, your association's objection had been withdraw or settled, is that right?

PN445

MR MILLER: That is the case, your Honour. However, it seems there may be an issue of clarification needed with the exhibit 2, the AMWU annexure (a). The amended copy given to me just moments ago says, in fact, that:

PN446

The coverage will be of all other vehicles, parts thereof, whether wood, metal, material and the preparation for sale of motor vehicles pre-delivery and the sale by auction of any motor vehicle.

PN447

The objection was withdrawn in October last year and a directions hearing was heard on 18 December and the withdraw was certainly noted in transcript and I refer to a letter from Mr Kevin Redfern of the VACC, who represented the collective MTAs around Australia at that particular hearing and there is a letter dated 14 October which says that:

PN448

We withdraw our objection on the basis that an undertaking from the AMWU that coverage in AMWU2 is not intended to cover sales classification, neither new, used, vehicle dealerships or auction houses - - -

PN449

which is totally contrary to the annexure now that I have in front of me, sir. I seek clarification on this particular issue because I believe it is recorded in transcript that the objection, as was put in the letter of 14 October from Mr Redfern to Mr Sechinidis and later responded to by Ian Jones on 25 October agreeing to the fundamentals put forward by Mr Redfern, is the basis on which the objection was withdrawn and now looks slightly different. May it please the court.

PN450

THE SENIOR DEPUTY PRESIDENT: As I apprehended that undertaking refers - the one you're referring to is the second dot point in the letter from the VACC, is that right?

PN451

MR MILLER: That is correct, sir. It - - -

PN452

THE SENIOR DEPUTY PRESIDENT: Refers to sales classifications?

PN453

MR MILLER: That is correct, sir.

PN454

THE SENIOR DEPUTY PRESIDENT: Yes, and are you suggesting that what is now sought by the AMWU, as set out, would go to sales classifications?

PN455

MR MILLER: Correct, sir. It says in the amended annexure, number AMWU2:

PN456

...and sale by auction of any motor vehicle, including detailing work.

PN457

The detailing work we have no objection to but it was very clear in the dot point that there was nothing to be dealt with in terms of the sale of motor vehicle, either new, used or dealerships or auction houses and it very clearly says now in the annexure the -

PN458

sale by auction of any motor vehicle.

PN459

THE SENIOR DEPUTY PRESIDENT: Are you, Mr Miller, saying that the words -

PN460

sale by auction of any motor vehicle

PN461

include - is not governed by the words "preparation for"?

PN462

MR MILLER: It would seem ambiguous, sir, I would - - -

PN463

THE SENIOR DEPUTY PRESIDENT: Yes. I mean if it was, is that what you're - would that meet your concerns?

PN464

MR MILLER: If it was very clear that sale staff, whether in retail establishments or auction houses, were not to be involved we would then have no objection, sir.

PN465

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Lawrence?

PN466

MR LAWRENCE: Your Honour, I find the submission that has just been put a little strange. It is my - on my instructions there has been no change to exhibit AMWU2 from the time this agreement was reached and the agreement was obviously reached on the basis of AMWU2, as it was then and as it is now. It seems to be there is a suggestion that AMWU2 was in some way altered or amended between the time that this agreement was entered into and the present and on my instructions that is just not correct. But I think this matter will become clearer, your Honour, when I go to the issue of the actual rule change itself and what we see as being its intended scope and operation.

PN467

THE SENIOR DEPUTY PRESIDENT: Well, the undertaking that was given in relation to coverage of sales classifications is not resolved from by the union, as I understand it.

PN468

MR LAWRENCE: No, it isn't, your Honour, no.

PN469

THE SENIOR DEPUTY PRESIDENT: You confirm that you're not seeking to cover sales persons?

PN470

MR LAWRENCE: No.

PN471

THE SENIOR DEPUTY PRESIDENT: Or people in sales classifications, as I think is the expression?

PN472

MR LAWRENCE: That is correct. Automotive sales persons or sales classifications in auction houses, for example, including auctioneers.

PN473

THE SENIOR DEPUTY PRESIDENT: Yes, yes. Mr Miller, is that clear enough?

PN474

MR MILLER: Yes, sir. I would certainly think it would be in the best interest of all parties should the annexure be clarified a little more in writing so that there is no misconstruing as to what the actual coverage is, but I take the point that has been made that if we listen to the rules or the application that is being made it may very well be clear.

PN475

THE SENIOR DEPUTY PRESIDENT: Well, it is an undertaking that has been given by the union. It is an undertaking for the purpose of section 204 which now, as I recall - sorry, I will keep talking in those terms, section 204 which, as I recall, recognises the effect of giving undertakings. I would be reluctant to interfere with an agreement that has been reached between an applicant and an objector, particularly one that has been reduced to writing and signed in the manner in which this has by senior officials of the organisations concerned, where such an undertaking has been given and the undertaking has clarified the position that - or confirmed, put it that way, the position that has been adopt all along by the applicant.

PN476

What I could suggest is that, just to make it clear, the undertaking, I will record in any decision I issue. So it will be there recorded in a decision and people won't have to go trying to find the file and the letter on the file.

PN477

MR MILLER: Thank you, sir, that would be most acceptable.

PN478

THE SENIOR DEPUTY PRESIDENT: If that would meet your concerns. Would that be suitable to you, Mr Lawrence?

PN479

MR LAWRENCE: We have no difficulty with that, your Honour.

PN480

THE SENIOR DEPUTY PRESIDENT: Might I, just before I go on, indicate that, as you are probably aware, the Act has changed but this is one of those applications that would be dealt with as though the Act hadn't been changed. There is no one who disagrees with that approach?

PN481

MR LAWRENCE: Your Honour, can I next move to the material that has been filed in the proceedings and our preference would be, your Honour, for the material, particularly the witness statements, to be marked.

PN482

THE SENIOR DEPUTY PRESIDENT: Are you saying just yours or?

PN483

MR LAWRENCE: Well, what we would say in relation to ours, your Honour, is that there is clearly no cross-examination in relation to the witnesses of the AMWU and we would ask that that material go in as read and be marked. It may be appropriate to then mark the witness statements filed by the AWU, but only marked, because those witnesses would have been subject to cross-examination in the normal course.

PN484

THE SENIOR DEPUTY PRESIDENT: Yes.

PN485

MR LAWRENCE: The witnesses for the AMWU, your Honour, are as follows. John Salter.

PN486

THE SENIOR DEPUTY PRESIDENT: Yes, I do have a list of them here so I can go through them and mark them and you can check that I've covered everybody.

PN487

MR LAWRENCE: Yes, your Honour.

PN488

THE SENIOR DEPUTY PRESIDENT: Yes.

PN489

MR LAWRENCE: Yes, and there were - I think, from memory, there is nine in all. Correction, your Honour, there is 10 in all.

PN490

THE SENIOR DEPUTY PRESIDENT: Ten, including Mr Jones.

PN491

MR LAWRENCE: Including Mr Jones and there is two witness statements filed on behalf of the AWU.

PN492

THE SENIOR DEPUTY PRESIDENT: Yes.

PN493

MR LAWRENCE: A Mr Llewellyn and Mr Swan.

EXHIBIT #AMWU3 STATEMENT OF MR SALTER

EXHIBIT #AMWU4 STATEMENT OF MR HINGLE

EXHIBIT #AMWU5 STATEMENT OF MR JACK

EXHIBIT #AMWU6 STATEMENT OF MR CROOKALL

EXHIBIT #AMWU7 STATEMENT OF MR SHARMA

EXHIBIT #AMWU8 STATEMENT OF MR DANIELS

EXHIBIT #AMWU9 STATEMENT OF MR ANDERTON

EXHIBIT #AMWU10 STATEMENT OF MR GARDINER

EXHIBIT #AMWU11 STATEMENT OF MR MELLING

EXHIBIT #AMWU12 STATEMENT OF MR JONES

EXHIBIT #MFI1 STATEMENT OF MR LLEWELLYN

EXHIBIT #MFI2 STATEMENT OF MR SWAN

PN494

MR LAWRENCE: Your Honour, can I just go, for the record, go through the objections that were filed and agreements and other understandings that have been reached or in terms of objections that have been withdrawn.

PN495

THE SENIOR DEPUTY PRESIDENT: Yes

PN496

MR LAWRENCE: For the purposes of the Commission, in respect of the ALHMWU and the TWU Memorandums of Understanding were reached between the respective organisations and the AMWU and as I am instructed, copies of these Memorandums of Understandings have been provided to the Commission.

PN497

THE SENIOR DEPUTY PRESIDENT: Yes. Do you wish to have them marked?

PN498

MR LAWRENCE: It might be appropriate to do so, your Honour.

PN499

THE SENIOR DEPUTY PRESIDENT: Yes.

EXHIBIT #AMWU13 MEMORANDUM OF AGREEMENT WITH THE ALHMWU

EXHIBIT #AMWU14 MEMORANDUM OF AGREEMENT WITH THE TRANSPORT WORKERS UNION

PN500

MR LAWRENCE: Thank you, your Honour, and then there is another category whereby objections have been withdrawn. Firstly taking the SDA, the NUW and the Royal Train and Bus Union, the objections were withdrawn and this was formalised - this has been formalised on transcript, but I understand the RTBU has forwarded a letter of confirmation of withdrawal to the Commission.

PN501

THE SENIOR DEPUTY PRESIDENT: Yes. It is a letter of 12 September 2002 from that union to the Commission, informally informing the Commission that it withdraws its objection.

PN502

MR LAWRENCE: Yes, your Honour.

PN503

THE SENIOR DEPUTY PRESIDENT: And as I have recorded it, the National Union of Workers withdrawal of objection is recorded at paragraph 233 of the transcript in the Shop Distributor and Allied Employees Association's objection, the withdrawal of that objection is recorded in paragraphs 227 to 229.

PN504

MR LAWRENCE: Yes, your Honour. And the remaining two objections were those filed by the Victorian Automobile Chamber of Commerce and the Motor Traders' Association of Western Australia, your Honour. Those objections have been withdrawn on the basis of an exchange of letters to which your Honour has already referred, at least in relation to the VACC. And copies of those have been provided to the Commission as I am instructed.

PN505

THE SENIOR DEPUTY PRESIDENT: Yes, and there was also confirmation from Mr Miller's Association by letter of 1 November 2002.

PN506

MR LAWRENCE: Yes, your Honour. Your Honour, can I now take you to the relevant rule change and indeed to the existing rule. We can all see that the existing rule, that is rule 1(e), states:

PN507

Without anywhere limiting or being limited by sub-rules 1(a), (b), (c), (d), (f), (g), (h), and (i), the union shall consist of an ...(reads)... including motor cars, motor cycles and all other vehicles or parts thereof and whether in wood and/or metal and/or material.

PN508

Now the key words, in my submission there, in a particular rule, relate to the words of "process", "trade" or "business" and "connected with or incidental to", particularly in this context "repairing". Your Honour, repairing, to go to a dictionary definition of repairing in the Oxford English Dictionary is: The act of restoring to a sound or unimpaired condition, the process by which this is accomplished, the result pertained and to quote from the Macquarie: Repair is to restore to a good or sound position after decay or damage to mend, to restore or renew by any process of making good, strengthening etcetera.

PN509

Now, our primary submission, your Honour, is that the rule change itself does not extend beyond existing coverage in the particular area. Currently, any employee engaged in or usually engaged in a process, trade or business connected with or incidental to, of relevance here, repairing of trucks, motor cars, motor cycles, etcetera, is eligible to be a member of the AMWU. The only material addition to the existing rule is the addition of the words, "the preparation for sale of motor vehicles (pre delivery) and sale by auction of any motor vehicles, including detailing work." Now, a key consideration here, in my submission, is the nature of the work covered by these words.

PN510

Now, in terms of preparation for sale, this essentially covers the pre-delivery. What is generally known as the pre-delivery function. And essentially that involves work undertaken on motor vehicles, both new and used, post manufacture but prior to delivery into the hands of a purchaser. And the same applies in relation to sale by auction. The difference there being that it is an auction house that will be responsible for the selling as opposed to perhaps an automotive retailer. Now, the nature of the work undertaken in this area, your Honour, is clear from the evidence that has been filed by the AWU in the proceedings. Intrinsically it involves repair work.

PN511

That is, repairing the motor vehicle, including detailing, fixing scratches on paint work or dents, engine repair, automotive repairs, cleaning, polishing, buffing. And we say that work, your Honour, clearly falls within the scope of the existing rule, involving as it does, the repairing function. And this applies, your Honour, in relation to not only vehicles that have been manufactured in Australia but also vehicles that are imported. That is, that this work is undertaken generally in relation to vehicles that are imported for sale in this country. And there are other aspects of the work, as your Honour will see from the statements that have been filed by the AMWU, which includes installation functions.

PN512

That is, installation of various forms of equipment, for example, CDs, navigational devices, etcetera. And the installation of these particular pieces of equipment it is true to say may or may not involve repair work. And there is other work which, of course, includes such things as rust coating, scotch guarding of seats, other protective paint coatings. Now, the evidence also establishes, your Honour, that persons engaged in this work are usually engaged in repair functions and modification functions. And that the principal companies involved in this general area are engaged in repair and modification work.

PN513

Looking at the issue of preparation for sale and the issue of the relevant class in terms of the application, it may be said in theory that the relevant class could comprise persons who are undertaking modification work only. That is, work that did not involve any element of repair. For example, installing a CD or navigation device that did not involve any element of repair at all. On one construction, these persons may fall within the relevant class for the purposes of the rule change. And I will come to sale by auction in a moment. But the reality is and the evidence demonstrates that such a person, if they exist, or such a classification, is indeed very rare.

PN514

Because what you have in this area is a multi-skilled environment whereby employees undertake repair work and modification work. They, on the one hand, might be installing a CD in a particular car one hour but may be buffing, polishing or removing scratches from a particular vehicle in the next hour. And the AMWU existing rule covers, and the AMWU has membership of, persons who are involved in repair and modification work. To the extent that you have modification work involving repair work, we say those persons are already eligible to be members. And on that basis the union has a membership base in this area. And the evidence demonstrates effective representation of those persons and that they can more conveniently belong to the AMWU.

PN515

And that has been the pattern of coverage of the AMWU. So, to the extent, your Honour, that there may be persons in terms of preparation for sale who may form or comprise the relevant class involving modification work only, then we say there is no factor that would militate against the Commission consenting to the rule change application in respect of those persons. Now, if I can move to sale by auction, your Honour. And does your Honour require any further clarification in relation to - - -

PN516

THE SENIOR DEPUTY PRESIDENT: No, I am happy with the undertaking that has been given on the basis it is an undertaking that has been given.

PN517

MR LAWRENCE: Yes.

PN518

THE SENIOR DEPUTY PRESIDENT: It seems to me to clarify the situation and exclude any intention on the part of your client to cover persons in sales classifications.

PN519

MR LAWRENCE: Yes.

PN520

THE SENIOR DEPUTY PRESIDENT: In relation to this alteration.

PN521

MR LAWRENCE: Yes, your Honour, yes. Yes, your Honour. But we would say that leaving aside those sales classifications, I mean, all work in relation to this area falls within the rule. That is, it is work in or in connection with the detailing function.

PN522

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that.

PN523

MR LAWRENCE: Now, can I just deal with the statutory requirements in some more detail, your Honour.

PN524

THE SENIOR DEPUTY PRESIDENT: There is no need for you to do so in that respect. I have had a look at that material and I am satisfied that the statutory - you mean the technical requirements, as we commonly describe them?

PN525

MR LAWRENCE: Yes, your Honour.

PN526

THE SENIOR DEPUTY PRESIDENT: Compliance with the regulation 39, etcetera?

PN527

MR LAWRENCE: Yes, yes, yes.

PN528

THE SENIOR DEPUTY PRESIDENT: Yes. No, I am satisfied there has been compliance in that respect.

PN529

MR LAWRENCE: Your Honour, in respect of 204(4) - - -

PN530

THE SENIOR DEPUTY PRESIDENT: Yes.

PN531

MR LAWRENCE: - - - we say the Commission could be satisfied as to the matters contained therein. There is no objection on foot from a registered organisation of employees. Further, your Honour, we say there is no matter that needs to be considered for the purposes of 204(6)(a) or 204(6)(b). The relevant rule change does not contravene an agreement or understanding to which the AMWU is a party and it deals with the AMWUs right to represent under the Act the industrial interests of a particular class or group of persons. And the alteration would not change the effect of any order made by the Commission under section 118A. There is in fact no such order in place in this area, your Honour.

PN532

In respect of 204(6)(c), your Honour, we say there are no other grounds, public interest or otherwise, that would militate against the Commission consenting to the application and, your Honour, it is clear on the face of an AMWU2 that the alteration that is now sought would have the effect of narrowing the scope of the alterations originally sought by the AMWU. In light of those submissions, your Honour, we ask that the Commission consent in part to the application by consenting to the eligibility rule of the AMWU being altered in the manner set out in exhibit AMWU2.

PN533

THE SENIOR DEPUTY PRESIDENT: Yes. Can I just suggest that the copy of the memorandum of agreement between your client organisation and the AWU be marked as an exhibit on the basis that the original will be filed as soon as possible?

PN534

MR LAWRENCE: Certainly, your Honour.

PN535

THE SENIOR DEPUTY PRESIDENT: All right.

PN536

MR LAWRENCE: We have got - we have actually got an original here, your Honour, which we can - we are happy to provide the Commission with an original copy of that agreement now.

PN537

THE SENIOR DEPUTY PRESIDENT: Well, that would be suitable. I will mark that - - -

PN538

MR LAWRENCE: It is not stapled unfortunately, your Honour, but.

PN539

THE SENIOR DEPUTY PRESIDENT: That is very speedily remedied.

EXHIBIT #AMWU15 MEMORANDUM OF AGREEMENT WITH AMWU

PN540

MR LAWRENCE: That is the original of the one that was faxed to you late last week, your Honour.

PN541

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Is there anything else you wish to say?

PN542

MR LAWRENCE: No, there isn't, your Honour.

PN543

THE SENIOR DEPUTY PRESIDENT: Mr Borlase and Mr Miller, your objections are now withdrawn but do you wish to say anything further at this stage?

PN544

MR BORLASE: Thank you, sir. The only point of clarification that I would have sought was that the work Mr Lawrence was referring to, which was just purely modification or installation that was not associated with repair, in terms of an organisation which engages in work of that nature, and where that work was not associated with the preparation for sale, that it is not their intention that they would cover that type of work. Effectively an organisation, the examples used being the installation of a GPS system or a CD system, or something of that nature, where the organisation was just purely selling that type of material and installing it and that wasn't part of the preparation for sale or the repair business, I assume from what was being said that that is not intended to be covered?

PN545

THE SENIOR DEPUTY PRESIDENT: The distinction, as I apprehended Mr Lawrence, is between: I obtain a new vehicle and subsequently have installed a 6-stack CD player, that this alteration doesn't go to the person who subsequently installs the CD player, it goes to the person who installs that CD player before I obtain property of the car. Is that right?

PN546

MR LAWRENCE: That is correct, your Honour.

PN547

THE SENIOR DEPUTY PRESIDENT: It is in relation to the preparation for sale of the car.

PN548

MR LAWRENCE: Yes, that is correct.

PN549

THE SENIOR DEPUTY PRESIDENT: Where this work is done, as distinct from something that is done after the sale.

PN550

MR LAWRENCE: Yes, yes, that is correct, although that - - -

PN551

THE SENIOR DEPUTY PRESIDENT: That may well be covered in other - you might well want to argue it is covered by some other area of your rules.

PN552

MR LAWRENCE: Yes.

PN553

THE SENIOR DEPUTY PRESIDENT: But in relation to his alteration, that is not what that is intended to cover.

PN554

MR LAWRENCE: No, that is right, your Honour, but that, if that, for example, that installation also involves some sort of repair function, we will argue it may well be covered by this rule albeit that part of this rule that is not subject to any form of amendment, that is, the repair.

PN555

THE SENIOR DEPUTY PRESIDENT: Yes. It may be part of 1(e) but it is not the amendment to 1(e).

PN556

MR LAWRENCE: No, that is right. That is correct.

PN557

THE SENIOR DEPUTY PRESIDENT: Yes. Is that clear, Mr Borlase?

PN558

MR BORLASE: Yes, sir, in terms of the amendment that is sought, that satisfies my client.

PN559

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN560

MR BORLASE: Thank you.

PN561

THE SENIOR DEPUTY PRESIDENT: Mr Miller?

PN562

MR MILLER: Yes, your Honour, thank you very much. Mr Borlase's clarification would have been exactly the same as mine. I have no objection. Thank you.

PN563

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Is there anything else for the record at all? If not, on the basis of what has been put to me today I will reserve my decision. I will issue a decision as soon as possible and the date of effect if consent is given to the alteration will be as specified in that decision. The matter is adjourned on that basis. The Commission itself is adjourned.

PN564

MR LAWRENCE: Thank you, your Honour.

ADJOURNED INDEFINITELY [10.50am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AMWU3 STATEMENT OF MR SALTER PN494
EXHIBIT #AMWU4 STATEMENT OF MR HINGLE PN494
EXHIBIT #AMWU5 STATEMENT OF MR JACK PN494
EXHIBIT #AMWU6 STATEMENT OF MR CROOKALL PN494
EXHIBIT #AMWU7 STATEMENT OF MR SHARMA PN494
EXHIBIT #AMWU8 STATEMENT OF MR DANIELS PN494
EXHIBIT #AMWU9 STATEMENT OF MR ANDERTON PN494
EXHIBIT #AMWU10 STATEMENT OF MR GARDINER PN494
EXHIBIT #AMWU11 STATEMENT OF MR MELLING PN494
EXHIBIT #AMWU12 STATEMENT OF MR JONES PN494
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