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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 4686
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER HOLMES
C No 00870 of 1998
C2003/4724
C2003/2641
GAS INDUSTRY AWARD 1986
Review under Item 51, Schedule 5,
Transitional WROLA Act 1996 re
award simplification
TRANSPORT WORKERS (TASMANIAN
GAS INDUSTRY) AWARD 2002
GAS INDUSTRY AWARD 1986
Application under section 113 of the Act
by Transport Workers' Union of Australia to
vary the award re Safety Net Review - May
2003 and various clauses
MELBOURNE
10.27 AM, MONDAY, 15 SEPTEMBER 2003
Continued from 17.7.03
THIS HEARING WAS CONDUCTED BY VIDEO CONFERENCE AND RECORDED IN MELBOURNE
PN136
MS S. LEARMONTH: I appear on behalf of the Transport Workers' Union.
PN137
MR R. WORTLEY: I am representing the Gas Industry Sub-Branch of the Transport Workers' Union.
PN138
MR P. TAYLOR: I appear on behalf of Origin Energy Limited.
PN139
THE COMMISSIONER: Now, we have got a number of matters to deal with. What I thought that we would deal with first was the South Australian section of the award. First of all I would like to thank Ms Learmonth for coming, given that I gather she has got the flu today. Luckily you are in Adelaide so it won't flow over to you I hope. You can remain seated whilst we are dealing with this. There is no need to stand up. Hopefully we will get it all on transcript and as far as I see it, it is primarily, in relation to South Australia, a report back as to where you have got.
PN140
As I have been informed by my associate, you have done quite a deal of work on this South Australian part of the award and she has received a document this morning which is quite comprehensive with lots of changes in it and I think we have returned it - which we have just received this morning and I think we have returned the favour on you in the sense of on Friday I think my associate forwarded to you some proposed wording changes to Section 2 of the award with comments on a host of clauses. Now, I had better check that you have got that document from my associate.
PN141
MR TAYLOR: Yes, we have, Commissioner.
PN142
THE COMMISSIONER: You have, okay. Margot, have you got - is this the South Australian one? All right. Now, I am not quite sure, given that we have both got two documents - well, what I am minded to suggest is that I take on board the comments that you have got in your document, Mr Taylor and Mr Wortley, and use that to effectively amend the document that we have prepared. The document that we have prepared includes all of the standard test case clauses dealing with redundancy, termination of employment, anti-discrimination etcetera.
PN143
Now, I actually haven't had a chance to look at your document so I am not sure whether you have already done all that or not. Perhaps if I might - either of you, Mr Taylor or Mr Wortley, if you wish to indicate from your point of view how you see the test cases, whether you have dealt with them at all in the document that you have prepared.
PN144
MS LEARMONTH: It might actually, Commissioner - I see Russell and Phil both wondering who is going to talk over there. It might be easier if I start that off. Myself - - -
PN145
THE COMMISSIONER: Can you hear Susie?
PN146
MR WORTLEY: Yes, actually we can not only hear Susie but we are looking at her right now, but we can't see you, Mr Commissioner.
PN147
THE COMMISSIONER: You can't hear me?
PN148
MS LEARMONTH: They can't see you
PN149
MR WORTLEY: We can't see you.
PN150
THE COMMISSIONER: You can't see me, you are lucky.
PN151
MR WORTLEY: There we go. Put it back to Susie.
PN152
THE COMMISSIONER: Sorry about that. My associate doesn't get an allowance for the use of the video machine.
PN153
MS LEARMONTH: She needs to talk to her union about that, doesn't she?
PN154
THE COMMISSIONER: I am not inviting a claim.
PN155
MS LEARMONTH: Technology allowance or something.
PN156
THE COMMISSIONER: Yes, well if we it by first names it is probably easier. Susie, if you would like to talk about.
PN157
MS LEARMONTH: Certainly, Commissioner. What happened was myself and Russell and Phil met in Melbourne, August of last year to go through the South Australian section and out of that we decided that we would actually prefer to have an Origin Energy South Australia award that would stand on its own two feet, and be separate to the Gas Industry Award 1986, given that the South Australian section of the Gas Industry Award is the award that underpins the work that is done by Origin Energy over in South Australia.
PN158
So it was probably worthwhile to have an award that stood on its own two feet as I said. So what I did as a result of that initial meeting was to come up with a draft award that then Russell and Phil could work through, make it relevant to what their needs were, and basically I used the South Australian section as the basis and added in test case - the standard test case clauses and basically provided a whole range of issues and points that Phil and Russell should work through. So that is where the document that has been sent through to the Commission this morning, that is where that has originated from.
PN159
THE COMMISSIONER: Right.
PN160
MS LEARMONTH: I would anticipate - I mean there has been a few other bits and pieces that have come out subsequent to that such as the reasonable hours clause, those sorts of things. So they haven't actually made it into this award yet. But it should be relatively up to date in relation to test case standards although I did notice that Russell and Phil are looking - and I don't know what your view is on this - they are looking to perhaps make some changes to the test case standards. I don't know whether the Commission would consider that allowable or not.
PN161
So that is effectively what this - the document that has come through to yourself is. The Section 2, South Australia, that your associate has handed out this morning, I haven't had an opportunity to go through that at all. I am happy to sort of have a look at that and do perhaps a cross comparison if there is anything that is missing out of the proposed Origin Energy South Australia Award, we can certainly insert that into the South Australia Award, and I think effectively the way in which I would see the end result of this being as either we make an application to create a new award which would mean we would probably have to rope Origin Energy in and then use this award as the settlement of the dispute.
PN162
Or alternatively that we put in a 113 application to vary the South Australian section in its entirety and that that 113 draft order reflect the South Australian award. So I mean that is sort of a bit further down the track, there is probably still a little bit of work to do but that is perhaps just a bit of background to fill you in on where the award has come from.
PN163
THE COMMISSIONER: Now, do you want to add to that, Phil or Russell?
PN164
MR TAYLOR: Yes, we certainly have made some changes to the test case clauses. It is the case down here that what we do have for things like maternity leave, we have 12 weeks pay, so within the award we have actually put that in. Now, we are not sure whether we are allowed to do that or not. That is what we have done.
PN165
THE COMMISSIONER: The 12 weeks, where was - was that a decision of the South Australian Tribunal or is that - - -
PN166
MR TAYLOR: We have a enterprise agreement that sits on top of the award and we have taken that clause from the agreement and that is an agreement revised for 12 weeks paid maternity leave.
PN167
THE COMMISSIONER: Yes. Well, I will check it but my initial response is no, the award - all that I can do in an award is to follow the standards that have been set by a Full Bench and whatever is in an award - sorry, in an agreement, that is fine, but in a sense I think it is analogous to putting the rates in the award which are in the agreement which I can't do either.
PN168
So I think that I would have difficulty amending or improving the test case standard. I mean I can certainly lift - if the award had clauses in it which were below the test case standard, I can certainly improve those but I can't take them above the test case standard. I will check that out but that is certainly my understanding of the situation. Is there anything else that you want to say at this stage?
PN169
MR WORTLEY: Yes, Mr Commissioner. We also have an issue where our union has literally hundreds of members who are in classifications which aren't covered under this award.
PN170
THE COMMISSIONER: Which aren't, sorry?
PN171
MR WORTLEY: We have hundreds of members who are in classifications which are not covered under this award, namely the clerical, administration and supervisory, IT and the likes. We would be seeking somewhere during this process we would like to make application to insert those classifications with the appropriate wage rates into the new award.
PN172
THE COMMISSIONER: Are they covered by any award?
PN173
MR WORTLEY: Well they are covered under our agreement. We have a joint agreement there with the Australian Workers' Union but they are members of ours and as I say there are probably over 300 people who are members who are not covered under classifications.
PN174
THE COMMISSIONER: Yes.
PN175
MR WORTLEY: So we would like - and we are the only respondent to this award, the Gas Industry Award, so we would like somewhere during this process to either have them incorporated or make application to incorporate these classifications in the award.
PN176
THE COMMISSIONER: Well, my reaction to that would be that it would require an application under section 113. I certainly don't have any difficulty with establishing a separate South Australian award. In fact, the more I get into this, I am inclined in fact to replace the major award with awards for South Australia, for New South Wales and for the ACT, because the one that actually applies in the ACT should be a Common Rule Award and it is not. It would seem to me simpler to have separate awards. So certainly I don't have any objection to that, and that, if I make the South Australian award, would make it simpler to put in clauses which cover those groups of people.
PN177
There may be some difficulty and I don't know your rules well enough as to whether they can cover those people. Whilst they might be members and paying subscriptions, it is a question of whether your eligibility rules allow them to be members. Now I am not trying to raise this to be difficult but I suppose I see it as a reason why it might be simpler to vary a South Australian award to incorporate them, than try and incorporate them into an award which has application in New South Wales and in the ACT, in that other employer respondents to the award might well be opposed to the course of action you have got, and we could end up with quite a - well, objections to vary in those other States which might drag the thing out for quite some time. So - - -
PN178
MR WORTLEY: I agree on both the two issues. First of all, yes, I do agree that a South Australian award is the appropriate way to go and secondly, our constitution covers - is quite broad in the gas industry and we cover anyone in the gas industry, any employee in the gas industry so - - -
PN179
THE COMMISSIONER: Oh right, that deals with that problem then. I am sort of jumping at shadows.
PN180
MR WORTLEY: That is fine.
PN181
THE COMMISSIONER: Thank you.
PN182
MR WORTLEY: Better to cover all bases.
PN183
MS LEARMONTH: I think any 113 application to cover the clerical, administrative and supervisory roles would only apply to the South Australian section anyway. I guess the question is whether we do that now, put in the 113 now, or whether we put it in after the South Australian Origin Energy Award is made. I think our preference is to get it done now to try and get it all cleaned up and have a document that we can all start working from and to without any other sort of outstanding matters.
PN184
THE COMMISSIONER: What is AGL's view about that?
PN185
MR TAYLOR: Origin's?
PN186
THE COMMISSIONER: Origin, sorry.
PN187
MR TAYLOR: I would state that it should be done. I think stage one should be to simplify the award, and then vary it afterwards. I wouldn't really want to see both done at once.
PN188
THE COMMISSIONER: Yes.
PN189
MR TAYLOR: So I think if we can just put all our work into actually simplifying the award first, and then varying it afterwards.
PN190
THE COMMISSIONER: All right. Well I will let you have further discussions about that and I mean if the application is made now - well, after those discussions if the TWU proceeds to make the application now, well I will have the application and it will be a question if necessary of hearing argument if you object as to when it ought to be dealt with and then I will just determine that issue and sort that out.
PN191
Well, Susie, do I understand you are volunteering - I mean my associate is happy to do the work, she is sort of - it is a question of - well, are you volunteering to marry, if I might use that expression, the draft which has been prepared by you, and then amended by Phil and Russell, with the document that Margot has given you, to come up with what would be the proposed award for South Australia?
PN192
MS LEARMONTH: It think it would be easier if I did that, Commissioner. Russell and Phil are still able to continue working through the draft South Australian award.
PN193
THE COMMISSIONER: Yes.
PN194
MS LEARMONTH: And I can just identify any differences between the South Australia award and the Section 2, South Australia, that has been presented today, and any changes I can then talk to Russell and Phil about getting them inserted into the South Australian award.
PN195
THE COMMISSIONER: Is that course acceptable - well I suppose, Russell, you have to say yes.
PN196
MR WORTLEY: She is a tough woman, Susie.
PN197
MS LEARMONTH: It is a hard deal to handle, isn't it, Russell?
PN198
MR WORTLEY: It is.
PN199
THE COMMISSIONER: So I take it that course is acceptable to both of you?
PN200
MR TAYLOR: Yes, it is.
PN201
THE COMMISSIONER: Susie will prepare an amalgamated draft. Now the next hard question is what time frame can I - given you are ill, Susie, how long do you need?
PN202
MS LEARMONTH: Nothing makes you feel better than doing those sorts of tasks, Commissioner.
PN203
THE COMMISSIONER: I can't hear you, sorry. Maybe it is better that I didn't, I don't know.
PN204
MS LEARMONTH: It might be. Well, I am out of the picture for about three weeks in the week beginning 29 September.
PN205
THE COMMISSIONER: I was going to give you till the 29th.
PN206
MS LEARMONTH: Well, I could possibly get it done before that.
PN207
THE COMMISSIONER: Well, look, if we work on the basis you endeavour to get it done before that date, and if you don't, for obvious reasons, well we will just have to live with that and so we will wait to hear on progress from you before we re-list this part of the matter at least, with a view to hopefully having a document which you can forward to us and Margot and I will go through it and if we are happy with it, we will let you know. If we have got any problems, we will let you know in relation to those, and then once we know the state of play, then we can arrange a time to list the matter with a view to progressing the creation of a South Australian award.
PN208
So I think we might finish off dealing with the South Australian part now unless there is anything anyone wants to put to me.
PN209
MR TAYLOR: I am on leave from 3 October to about 3 November so I can't appear during that period obviously.
PN210
THE COMMISSIONER: Okay. Thank you for that, and what about you, Russell?
PN211
MR WORTLEY: No, I will be around, Mr Commissioner, and I will no doubt be talking to Susie over the next coming few days.
PN212
THE COMMISSIONER: Okay, all right. Well what we will do then is take that course, taking into account people's leave arrangements and certainly seek to have it all tied up in a bundle by 23 December, whenever that is. But hopefully before then, so if I could thank Phil and Russell, both of you, for the work you have done and of course what Susie has done and given the amount that is there, I am hopeful that it can be amalgamated without too much difficulty and we can get to the end of the road fairly quickly. So thank you both.
PN213
MR WORTLEY: Thank you, Mr Commissioner.
PN214
MR TAYLOR: Thank you, Commissioner, thank you, Susie.
PN215
MS LEARMONTH: No worries, thank you.
PN216
THE COMMISSIONER: Well, we have got Section 1 of the award, as we have numbered it, New South Wales and Australian Capital Territory, and Section 3, Local Government Gas Utilities, New South Wales. Now I think I indicated that I am minded in fact to make separate awards for New South Wales and the ACT, simply because the ACT award needs to be a Common Rule Award and it would seem to me, if we go down that path, that we would also shift Local Government Gas Utilities, New South Wales, that part of the award forward so that it would become part of Section 1.
PN217
So we would have Section 1, New South Wales and Local Government Gas Utilities New South Wales. Now I don't - I have sprung that on you so you might like to think about that, Susie. Stay seated, it is all right.
PN218
MS LEARMONTH: I mean, Commissioner, that is an obvious course of action is to combine them and the New South Wales section deals with New South Wales and ACT stand alone. What I might do in relation to the ACT is go to our Canberra branch and just establish with them what current awards they have got there and whether they actually still require this section. If they don't require it, then we will set it aside.
PN219
Certainly in the New South Wales branch - our New South Wales branch have indicated that they would like to keep the New South Wales section and we have still got a couple of members who are employed by Origin who are covered by that New South Wales section. Their EBA overrides it of course but I haven't actually checked with the ACT Canberra branch in relation to whether they have a view on it so I might do that and then that could potentially save us all a little bit of work.
PN220
THE COMMISSIONER: Yes, I mean if it is not needed, well that certainly would help. Now, Margot I think has just given you that part of the award which deals with those areas and again there are some sections which are obsolete and others which are test case standards, and I don't think - well, you might have got it Friday I think, so you wouldn't have had a chance to look through all of that.
PN221
MS LEARMONTH: I haven't had a chance to look through it at all, Commissioner.
PN222
THE COMMISSIONER: Have you done work on those provisions as well?
PN223
MS LEARMONTH: No, I haven't.
PN224
THE COMMISSIONER: Oh, right.
PN225
MS LEARMONTH: I have been working on the Tasmanian and South Australian sections. They are probably the most relevant at this stage.
PN226
THE COMMISSIONER: Well, the simplest thing I think is to say you have got now what we are suggesting might be appropriate for New South Wales and the ACT, and the simplest - I don't know what your - well, you will have to, as you indicated, talk to your ACT branch about a separate - well, whether they still need the award and if so, a separate award. I think the simplest thing is to just note that you have got the documentation and are aware of the course of action that I have in mind, even though you haven't seen this documentation before and what I have said is not actually included in the way these documents have been prepared, but if we just leave it with you to look at that documentation.
PN227
MS LEARMONTH: Certainly, Commissioner.
PN228
THE COMMISSIONER: And whilst there is a lot of paperwork there, certainly in going through it with Margot - I am coming probably at it from a different angle to you but it didn't appear to me as though there was much in the way of dramatic change except trying to do away with gender specific titles as far as is possible, and the test case standards and questioning in some instances whether statutory bodies that are cited in the award in '82 or whenever it was, still apply given the tendency of governments of either ilk when they come into power to change the names of organisations etcetera.
PN229
MS LEARMONTH: Yes.
PN230
THE COMMISSIONER: Okay. So I think we will leave that on the basis of you seeing what you can do again before you have a well earned break.
PN231
MS LEARMONTH: It is not all well earned - well, I shouldn't say that, it is not all a break.
PN232
THE COMMISSIONER: Isn't it?
PN233
MS LEARMONTH: No, some of it is work but some of it is a break.
PN234
THE COMMISSIONER: Pity it is not all break.
PN235
THE COMMISSIONER: We will now move to the application to vary the Gas Industry Award 1986 by setting aside the section 5 which deals with the Gas Corporation of Tasmania - it is section 4 actually. Anyway, we know what we are talking about it.
PN236
MS LEARMONTH: Yes, I think we all know what we are talking about there. I think firstly what I need to do, Commissioner, is actually ask that you deal with our application to vary the Tasmanian Gas Industry - the Transport Workers (Tasmanian Gas Industry) Award 2002.
PN237
THE COMMISSIONER: Yes, certainly.
PN238
MS LEARMONTH: Do you want me to stand up to make these submissions?
PN239
THE COMMISSIONER: Yes.
PN240
MS LEARMONTH: Okay, this is an application by the Transport Workers' Union to vary the Transport Workers (Tasmanian Gas Industry) Award 2002. Copies of the application and draft order and hearing notice were sent by registered post to the Award's respondents on 24 July and I can provide you with a statement of service which attests to that.
PN241
MS LEARMONTH: The purpose of the application is to consolidate a number of awards relevant to this industry within the one State, and currently in Tasmania there operates the Transport Workers (Tasmanian Gas Industry) Award 2002 and the appropriate section, whether that be 4 or 5, of the Gas Industry Award 1986. The Gas Industry Award 1986, as you know, Commissioner, is currently being simplified. However, should the application currently before the Commission be granted, then this would have the effect of inserting into the Transport Workers (Tasmanian Gas Industry) Award 2002 the outstanding yet relevant provisions currently contained within section 4 or 5 of the Gas Industry Award 1986, being the Tasmanian section of the Gas Industry Award 1986.
PN242
So should the application be granted in the terms sought, the TWU would then file, and we can make that application today, to set aside the Tasmanian section of the Gas Industry Award 1986. The draft order includes a number of things including a union delegate - I should re-phrase that, a Trade Union - I should re-phrase that again, a dispute resolution training leave clause, by inserting a new clause that deals with gear and equipment, inserting a new clause which deals with overalls, inserting a new clause which deals with a travel allowance, would also insert the reasonable overtime clause.
PN243
Also, a recall clause and a training clause, and effectively that would have the - should that order be granted as we are seeking, it would have the effect of covering off on the Tasmanian - the bits and pieces outstanding in the Tasmanian section of the Gas Industry Award 1986.
PN244
THE COMMISSIONER: So it would make the Transport Workers (Tasmanian Gas Industry) Award 2002 incorporate all of the relevant provisions from the Gas Industry Award 1986?
PN245
MS LEARMONTH: That is correct.
PN246
THE COMMISSIONER: Fine, thank you. Did you receive any response from Origin Energy in relation to this matter?
PN247
MS LEARMONTH: No, I haven't, Commissioner, and I have chased them up a few times electronically to see if there is somebody else I should be speaking to but I had no response so I - - -
PN248
THE COMMISSIONER: Fine. If you could just bear with me for a moment. Thank you. I have checked the file and it is clear that the company was notified by way of facsimile transmission forwarded by my associate on 3 September at 3.43 pm. The company has chosen not to appear. They have had ample opportunity to appear and it is clear that through exhibit L1 they were advised of the intention of the - the application. Having considered the text of the draft order, I am satisfied that the application ought be granted and I therefore grant the order and in due course my associate will provide you with a copy.
PN249
In relation - sorry. Now, there was an application - I think the other application is to vary the Gas Industry Award for the Safety Net Review. Is that right? Matter C2003/2641.
PN250
MS LEARMONTH: Commissioner, just before we move off C2003/4724 which was our application to vary the Transport Workers (Tasmanian Gas Industry) Award 2002, do you want me to make a formal application to set aside the Tasmanian section of the Gas Industry Award 1986?
PN251
THE COMMISSIONER: Well that is what you want done and a formal application hasn't been made, has it, lodged?
PN252
MS LEARMONTH: No. Do you want me to make that verbally and follow that up in writing now?
PN253
THE COMMISSIONER: That would be the simplest if you can indicate that that is what you want to do and I will ask you to advise the other side that that is your intention and at some stage we will list that matter when we are doing the simplification.
PN254
MS LEARMONTH: Certainly. Then, just to finish off that matter then, we will be seeking to - and we will file an application to set aside the Tasmanian section of the Gas Industry Award 1986.
PN255
THE COMMISSIONER: So I consider that what you have just said is in fact an oral application by the Transport Workers' Union of Australia, pursuant to section 113, to vary the Transport Workers' Union of Australia by way of deletion of the relevant part which deals with Tasmania in light of the fact that the variation is already granted today to the Transport Workers (Tasmanian Gas Industry) Award 2002, meaning that the provisions of the Gas Industry Award 1986 have no work to do in Tasmania. Thank you.
PN256
THE COMMISSIONER: The last application I think is matter C2003/2641, application by the Transport Workers' Union of Australia to vary the Gas Industry Award 1986 to reflect the decision of the Safety Net Review of this Commission issued in May 2003.
PN257
MS LEARMONTH: Commissioner, I am going to need to seek an adjournment to this particular matter. At this stage we have not - although we have made the application, we haven't yet served on their respondents our application or our draft order. That is easy enough to be done and certainly I have done the calculations to get the rates up to date and the allowances. It is simply a matter of converting those calculations into a draft order and serving that on the respondents.
PN258
It is a question of whether we serve that on the respondents using the old award or the current award, being the Gas Industry Award 1986, which although in one sense seems the simplest approach because it then gets the rates up to date and then we can continue on with the award simplification, the alternative approach is whether we can somehow have the draft order reflect a proposed simplified award relevant for each section. I am not too sure what the Commission's view would be on that. It doesn't really bother the TWU either way. We would certainly be happy to take some sort of direction as to how we should proceed with that.
PN259
THE COMMISSIONER: My initial reaction would be it is preferable just to vary the award as it currently is, given that the sooner the variation is dealt with, unless there is some constraints in terms of dates of effect as to when the 12 months is up, then if it is already up, then I would suggest that the simplest course would be to vary the award as it currently exists, given that in relation to the simplification process, whilst we are all quite focused on bringing about that simplified award as quickly as possible, it may still be some time. Therefore I suggest the course I have.
PN260
MS LEARMONTH: The award actually hasn't been varied for Safety Net adjustments since 1991. However, no employee is currently being paid under this award, fortunately. Therefore, we would - and we can do this at the time of the hearing, we would then need to seek - I have forgotten the words but in relation to the principles, we would need to seek some sort of - - -
PN261
THE COMMISSIONER: Arrange to include all of the Safety Net adjustments since 1991.
PN262
MS LEARMONTH: Certainly.
PN263
THE COMMISSIONER: Certainly. Well, if you indicate that in the draft order and if the factual situation reflects your understanding, then there shouldn't be any problem with that application.
PN264
MS LEARMONTH: What might assist with this Safety Net adjustment application is if we can get a date and another notice of listing, and then we can file or serve upon the respondents our application or our applications, the draft order and a notice of listing, and that will bring that matter on and be dealt with.
PN265
THE COMMISSIONER: All right. Well, I think what I will do is just deal with your initial application for an adjournment and then I will adjourn the proceedings and take on board what you have just said. The application for an adjournment by the TWU of Australia in relation to the variation of the Gas Industry Award 1986 to reflect Safety Net Review adjustments is granted. This matter is adjourned.
ADJOURNED INDEFINITELY [11.10am]
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