C2005/1276, Transcript of Proceedings [2005] AIRCTrans 2395 (25 November 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13434-1

COMMISSIONER THATCHER

C2005/1276

ALCOA OF AUSTRALIA LIMITED
AND
THE AUSTRALIAN WORKERS’ UNION
s.127(2) - Appln to stop or prevent industrial action
(C2005/1276)

PERTH

11.43PM, MONDAY, 14 NOVEMBER 2005

PN1

MR D PARKER: I appear with my friend, MR Y FINGER, and leave is sought on behalf of both my friend Mr Finger and myself, sir.

PN2

MR M LOUREY: I appear for the respondent union. I too seek the Commission’s leave. I have with me MR T DALY on my left and
MR G TROTTER on my right.

PN3

THE COMMISSIONER: Very well. Yes, leave is granted in both instances. Yes, Mr Parker?

PN4

MR PARKER: Thank you, Commissioner. I neglected to say on my left I have Mr Stewart Allen from the company.

PN5

THE COMMISSIONER: Yes, Mr Allen.

PN6

MR PARKER: Commissioner, you may be aware of some of the background to this matter given that there were proceedings before Lacy SDP on an urgent basis on Friday night. But perhaps if I take the following steps if it please the Commission.

PN7

THE COMMISSIONER: Could I just say don’t assume anything. I have had a matter this morning and I’m really - I have tried to the best flicking through the papers but I don’t know if I - - -

PN8

MR PARKER: Yes. Perhaps rather than assume I take the approach that you’re coming to the matter fresh instead of - - -

PN9

THE COMMISSIONER: That would be a better assumption.

PN10

MR PARKER: Sir, what I intend to do is to briefly outline some background as to how we’re in the position that we’re in today, which will include events on Friday and throughout the weekend. Sir, I have outlined that background for the purpose of fleshing out, if I can put it that way, the grounds to the application and also to by way of - I withdraw that, sir.

PN11

Also, in an attempt to expedite proceedings somewhat today it may well be that certain matters of fact are not really the intention and the issues come down to exercise of discretion rather than the jurisdictional prerequisites in relation to section 127. Sir, to that end after I have concluded my outline it may be appropriate for you to hear from the union in response to what I cover in that outline and then, sir, based on submissions from the parties we would take I from there.

PN12

THE COMMISSIONER: Very well then. That sounds goods, Mr Parker.

PN13

MR PARKER: Thank you, sir. Sir, can I start by saying this matter is exceptionally urgent from the company’s point of view. Sir, on Friday the company was the subject of a snap strike called and organised by the Australian Workers Union. That snap strike on my instructions commenced at approximately 4 pm although, sir, we’re talking about four different sites that are covered by the relevant industrial instrument to which the AWU and the company are a party.

PN14

Sir, can I identify those two key factors, firstly, the agreement that covers the relevant work, the Alcoa World Alumina Australia WA Operations AWU Agreement, 2003, AG825712. Sir, I just inquire as to whether you have a copy.

PN15

THE COMMISSIONER: I have one here and I have noted the nominal term was up until 1 July 2005. Is that the one?

PN16

MR PARKER: Yes, that’s correct. Sir, that’s a key factor. This work is currently covered by or regulated by a certified agreement, albeit it as you have noted, sir, that agreement is not within it’s nominal term. Sir, there are a number of sites covered by that agreement but I’m instructed that the industrial action, the snap strike that occurred on Friday afternoon occurred at four different locations covered by the agreement. Those locations are the Huntley Bauxite Mine operated by the applicant, the Willow Dale Bauxite Mine, also operated by the applicant, the applicant’s Wagerup Alumina Refinery and the applicant’s Kwinana Alumina Refinery.

PN17

Sir, I’m instructed that - and if it’s in contention the evidence will be that industrial action, as I say, commenced at or about 4 pm at all of those locations. At that time there were persons working on shift who were not due to cease their shift until later on into the evening. Those persons, I’m instructed, attended the meetings organised by the AWU convenors on each of those sites and then did not work further. I’m instructed that when the next shift turned up there were meetings conducted by the relevant AWU convenors at each site and whilst at some sites some employees worked I’m instructed at all of the sites there was industrial action throughout the course of the nightshift - item 4 of that, sir.

PN18

Sir, when that industrial action occurred, on behalf of the applicant an application was made - an urgent application was made to the Commission. It was outside of hours because of the late hour today on a Friday when this snap strike occurred, it was not possible to notify the Commission of that within the Commission’s working hours. However, Lacy SDP conducted a hearing by telephone, an ex parte hearing, at which the AWU was not present and at the time of that hearing the AWU had not been served with an application. That ex parte hearing, the result of it was that Lacy SDP issued an interim order under section 127 - sir, I’m not sure whether you do have a copy of that interim order.

PN19

THE COMMISSIONER: I have a copy of that interim order.

PN20

MR PARKER: Sir, that interim order was issued in the evening on effectively late into the night at about 9.30 pm on Friday and then the applicant went about steps - took steps to serve the order in accordance with the order. I’m instructed that service was effected that night on all of the convenors at each of the four sites I have mentioned: Mr Andy Wing at Kwinana, Mr Chris King at Willow Dale, Mr Simon Price at Huntley, and Mr Stephen Price at Wagerup. So service was effected on those persons that evening.

PN21

I’m also instructed that the WA branch secretary, Mr Daly, was made aware of the orders by an agent of the applicant. Sir, we would say that there’s no question that those orders were immediately or as reasonably immediately as possible brought to the attention of the AWU including to its convenors. Then, sir, in accordance with the orders of the Commission concerning service, the applicant engaged in reasonable endeavours to serve the relevant employees who were also bound by the orders including in accordance with the auditor service, concerning ..... or reading those orders in the presence of employees at meetings at the commencement of their shifts. I’m instructed that that occurred at sites on Saturday morning and then also later.

PN22

THE COMMISSIONER: And the grounds of seeking the interim order were?

PN23

MR PARKER: The grounds of seeking the interim order? Sir, they essentially came down to the grounds as I’ve outlined in the application. I can walk through those, sir. They're fairly short and they don’t actually build on the circumstances that have occurred since the application was made. Sir, I thought it was only appropriate to leave the application, if you like, frozen as it was made - - -

PN24

THE COMMISSIONER: Yes.

PN25

MR PARKER: - - - on Friday evening. Then if there’s any update of his background and any further grounds added, I can deal with that today. So, sir, the nature of the industrial action is in very summary form as it was know on Friday night set out in the grounds. Sir, give the application was ex parte the applicant felt obliged to bring to the Senior Deputy President’s attention that there may be some argument about whether or not this action was protected action or not.

PN26

At that stage the company could only by what it knew and that was very - it’s fair to say in summary, sir, the company didn’t know very much about the basis upon which the union might assert that this action was protected. Sir, the background to that is as set out in the grounds and that is that the company brought to Lacy SDP’s attention the fact that by notice dated 8 April 2005, executed by the branch secretary of the AWU. The AWU purported to initiate a bargaining period under section 170MI of the Act.

PN27

THE COMMISSIONER: Yes, I got that. That’s BP2005/1017.

PN28

MR PARKER: That’s correct, Commissioner. So we brought that fact to the Senior Deputy President’s attention. We also brought to the Senior Deputy President’s attention that there had been a previous notice under section 170MO. That notice was an earlier notice. I understand that both the notice of initiation of the bargaining period which was being referred to in the proceedings before Senior Deputy President Lacy by telephone and a subsequent 170MO notice, although it appears to be written as a 170MD notice at the top of the AWUs note, though they have been faxed through to the registry of the Commission.

PN29

Sir, I might just inquire whether that’s been received by the Commission. The application confirmed this morning which I understand was sent through quite early this morning. Attached to that is a letter from Blake Dawson Waldron to Chapmans Barristers and Solicitors which I und is my friend’s firm, is appearing on behalf of the AWU, and then what purports to be a 170MO notice dated 1 September 2005 and then the notice of an initiation of bargaining period for BP2005/1017 under ..... too.

PN30

THE COMMISSIONER: Yes. I have the letter to Chapmans dated
12 November 2005.

EXHIBIT #P1 LETTER TO CHAPMANS SOLICITORS DATED 12/11/2005

PN31

THE COMMISSIONER: Attached to that is a letter signed by Tim Daly, branch secretary Australian Workers Union to Stewart Allen dated 1 September 2005, notice to employer under section 170MD. I have that notice. I also have on the registry file a notice of 1 September 2005under section 170MR of the Act, notice to the registrar that the members of the AWU have been authorised to engage in industrial action within the bargaining period, which seems to coincide with the MO notice of 1 September 2005.

PN32

MR PARKER: Commissioner, I understand. Then, sir, the bargaining period notice is also there.

PN33

THE COMMISSIONER: The MO, yes, I see that. That’s an attachment also to P1.

PN34

MR PARKER: Yes, sir. Sir, perhaps if I can go back a step. Those documents are bundled together as attachments to the facsimile from my firm to the Commission.

PN35

THE COMMISSIONER: Well, let’s - - -

PN36

MR PARKER: They were received in that way for convenience sake.

PN37

THE COMMISSIONER: Okay. Let’s make the letter to Chapmans P1. Let’s make the MO P2.

EXHIBIT #P2 170MO NOTICE
EXHIBIT #P3 INITIATION OF BARGAINING PERIOD

PN38

MR PARKER: Thank you, sir. And, as you say, the application is set out there which probably doesn’t need to be marked. Sir, the reason why I’m going through that is - - -

PN39

THE COMMISSIONER: And it’s obvious to me that P2 says that thee will be a series of stop work meetings commencing on 5 September until
30 September 2005 for all members of the AWU employed under the certified agreement.

PN40

MR PARKER: Yes, sir. Sir, those two documents, P2 and P3, were the documents being referred to before Lacy SDP and were brought to his attention.

PN41

THE COMMISSIONER: I see.

PN42

MR PARKER: The company also brought to Lacy SDP’s attention that the company had been advised, I’m instructed in a discussion between Mr Trotter and Mr Allen, that Mr Trotter asserted in that discussion which took place late on Friday, after the action had commence, that the union had sent through - or alleged that it sent through by facsimile, a section 170MO notice. Sir, notwithstanding that I’m instructed that Mr Allen made it very place to Mr Trotter that the company had no record of ever receiving such a notice, and leaving a message to that effect. No further copy of the notice was provided to the company - well, the alleged notice and indeed there was no confirmation further of that from the union, on my instructions.

PN43

Sir, what was put before Lacy SDP, is that: (1) there was a bargaining period - a notice of initiation of a bargaining period; (2) there’d been a previous notice which appeared to relate to what seems to be industrial action that may or may not have occurred between 5 September 2005 and 30 September 2005 and, sir, there was an assertion that the company was aware of that a bargaining - sorry, that a 170MO notice had been served somehow on the company on Wednesday afternoon, 9 November 2005, but the company knew no more and put those matters before Lacy SDP.

PN44

Sir, when those matters were put before Lacy SDP it was asserted on behalf of the company that none of that background served to make, even in an arguable sense, any industrial action that was happening on Friday night, or indeed any industrial action that was to follow on Saturday. None of that background served to make that action protected action. And that was put in the strongest terms to Lacy SDP. The reason for that office, sir, is that the act is crystal clear on this, that a respondent to a 170MO notice is entitled to 3 clear days’ notice of industrial action that will be taken pursuant to a section 170MO notice. If that notice is not given, then any industrial action taken pursuant to the notice will not be protected.

PN45

Sir, if that wasn’t crystal clear enough reference was made to the relevant authorities which have dealt with this and which plainly set out that that period is not 72 hours, it is 3 clear days. That means the day on which the notice is given is not counted in the 3 days and the day on which the action taken in accordance with the notice is not counted in the 3 days either.

PN46

It was put that even if, as had been asserted - but at that stage the company had no copy of the notice and no record it had ever received the notice, even if the union had served the notice on 9 November, Wednesday afternoon as it has been referred to on my instructions in the discussion between Mr Trotter and Mr Allen, then the union was not entitled to commence it purported protected action until Sunday.

PN47

Sir, I say that without any concession that action that’s commenced early and jumps the gun can continue to be protected. Indeed I’ll be asserting in fuller argument later on that again it’s quite clear under 170MO that any action which is taken will not be protected unless the requirements under 170MO are met. That requirement is very clear.

PN48

Sir, on that basis we put that the action is not protected. Reference was made to the significant damage that was potentially going to be caused to the company, the significant inconvenience that even at that stage has been experienced by the company. Because of the snap nature of the industrial action, no notice whatsoever was given to the company, the company had to put in place steps to try and continue to conduct its operations and operate the refineries that it operates at Kwinana and Wagerup, and that needs the utilisation of staff. At that stage those staff had worked a full week and there were concerns on the part of the company about fatigue of those staff if they continued to work for who knows how long it was going to need to be in order to keep the refineries operating.

PN49

Sir, I’m instructed that it’s not possible to simply flick a switch on in the refinery to shut it down. It’s an involved process. It takes a considerable period of time of, I’m instructed, somewhere between 7 and 14 days, and so from that point of view it is simply not an option for the company when the persons who are necessary for the operation of the refineries simply walk out with no notice whatsoever, organised by the union, it’s simply not open to the company to flick a switch and put a hold on operations until such time as the union decides that it’s going to stop organising snap industrial action against the company.

PN50

Sir, it was put that that was the serious prejudice being suffered by the applicant and for those reasons that an order should issue, an interim order, under section 127 and the term of the order determined by Lacy SDP was until 4 pm today.

PN51

THE COMMISSIONER: That was the order sought, wasn’t it? Was that the order sought or was that - - -

PN52

MR PARKER: That was the order sought. Sir, at the stage of Friday evening, of course the company would have wished to immediately move to get final orders but given the ex parte nature of the proceedings Lacy SDP said, I would say, with respect, as is understandable in those circumstances, was prepared to make an interim order, an interim order of course being for the purpose of allowing there to be a further hearing and about whether or not final orders should issue.

PN53

Sir, indeed, as indicated in the facsimile that my firm provided to the Commission and copied to the national office of the union and indeed I’m instructed that that application has actually been served by hand on the national office of the union as well this morning, the company’s instructions are to press for final orders to meet the company’s instructions to me, sir, and indeed that’s the application that’s being sought before you today.

PN54

Sir, that’s probably what I can say by way of background to the proceedings that occurred on Friday the 9th. I have already covered the service of those orders and that the company would assert that those orders were immediately brought to the attention of the union in a practical sense and also served in accordance with the instructions and directions given by the Commission.

PN55

Sir, what occurred after that is unfortunately a continuation of disruption to the company’s operations notwithstanding the orders made by the Commission and notwithstanding that those interim orders were brought to the attention of the union. Sir, can I preface my comments about described the nature of what occurred over the weekend by outlining that there are four different sites involves here. This action has occurred over a fairly short period of time of the weekend and it’s not always possible to get full instructions in relation to absolutely every site and every event that occurs on site.

PN56

So, what I would set out is a summary and a summary that may or may not be applicable to a lesser or greater degree in relation to particular sites but, sir, it would give you an outline of the disruption that continued to occur over the weekend. That disruption indeed is part of the reason why the company continues to press for final orders under section 127, of course subject how you wish to proceed today and what we get from my friend.

PN57

Sir, can I outline that disruption that continued to occur over the weekend. I’m instructed that there were meetings at the start of each shift as had been envisaged by the company and I’m instructed, as I mentioned earlier, that the company took steps at the start of each shift to bring the orders to the attention of employees including handing out copies of the orders to employees attending for work and also, I’m instructed, seeking to read orders.

PN58

I’m instructed that in general at each of the four sites the meetings continued past the normal start time but at each of the four sites employees did start work for a period but then at approximately 11 pm, although - sorry, I withdraw that - 11 am, although on some sites this started to occur earlier than that, further meetings were organised by the union convenors and those meetings resulted in the employees who had earlier started work again, albeit late, then leaving work and not working further that day.

PN59

Again, in summary form I’m instructed that industrial action continued throughout the course of Saturday and through Saturday night and through Sunday. Sir, I’m instructed, although my instructions are not absolutely clear, that there has been some return to work as of the nightshift last night and that there has been some return to work at some of the sites earlier today. But, sir, none of that has come with any indication about further industrial action. None of that return has come with any guarantee that the union concedes the point that the notice is invalid and will not take further action pursuant to the notice, that purported notice of 9 November referred to by Mr Trotter. Indeed, I’m instructed - - -

PN60

THE COMMISSIONER: Which you haven’t seen yet.

PN61

MR PARKER: I will come to that in a moment, Commissioner. It’s fair to say I have seen it now, very recently this morning. But I am still instructed that the company has received no notice of the lifting of a ban that was put in place at the Huntley mine site on AWU members filling in for assisting group leaders and indeed the company anticipates further industrial action tomorrow by these persons.

PN62

Sir, that’s a brief outline of what happened over the weekend and how we’ve got to proceedings today. Sir, the company would assert that industrial action is happening. The company would assert that - - -

PN63

THE COMMISSIONER: Sorry, why is it happened now?

PN64

MR PARKER: It’s on my instructions there continues to be a ban on AWU members filling in the assistant group leader positions at the Huntley mine site. Sir, the second point there is that the company anticipates because of previous discussions that there will be further industrial action tomorrow despite assurances being sought by the company that employees would attend for work as usual tomorrow. No assurances have been given. From that point of view the company takes the view that industrial action is also threatened, impending or probable.

PN65

The third point there, sir, relates to the mystery notice, if I can call it that. If I go to the notice, a notice dated 9 November 2005 was - - -

PN66

THE COMMISSIONER: Just stop a sec. You know this lifting of the bans about AWU members working as group leaders, wasn’t that the subject of a - is that the same one that was the subject of a 99 application by Alcoa to me some weeks ago?

PN67

MR PARKER: Sorry, sir, it may be and I can get instructions.

PN68

THE COMMISSIONER: Which I thought had nothing to do with the negotiation of the agreement.

PN69

MR PARKER: Sir, I don’t know the answer to that.

PN70

THE COMMISSIONER: Okay.

PN71

MR PARKER: I am instructed that that’s at a different site.

PN72

THE COMMISSIONER: Okay. Thank you for that.

PN73

MR PARKER: And relates to a different agreement being the Pinjarra agreement, not the agreement that applies to these four sites.

PN74

THE COMMISSIONER: Yes, okay.

PN75

MR PARKER: Sir, if I come to the notice or at least the letter dated
9 November 2005, from Mr Tim Daly to Mr Stewart Allen. Sir, I only have one copy of this and I’m not in a position to hand it up, although - sorry, sir, yes I do have some further copies of this notice.

EXHIBIT #P4 LETTER FROM MR DALY TO MR ALLEN DATED 09/11/2005

PN76

MR PARKER: Thank you, sir. Can I preface my comments by saying given that this notice has only been brought to my attention earlier today, I understand that’s because it was only found by the company earlier today. It’s a bit difficult to make detailed submissions in relation to the notice other than to note that the company has now located the notice. When we were before Lacy SDP we had no notice and had no record of ever receiving one and, sir, I feel obliged to complete the record in relation to that.

PN77

THE COMMISSIONER: Just a moment. Sorry, thank you, Mr Parker.

PN78

MR PARKER: Sir, you’ll see that the document that I have handed up is a letter dated 9 November 2005 from Tim Daly to Mr Stewart Allen and it attaches, at least in the form that I have handed it up, a notice, a form R41 signed by Mr Tim Daly, notice of the giving of authorisation to engage in industrial action. That form R41 is not stamped. However, there’s a letter which appears to be a covering letter to the form R41.

PN79

I’m not sure whether it is or not, but that does appear to attract - to have a stamp of the Commission dated 9 November 2005 and that is signed by Mr Tim Daly to the Registrar of the Australian Industrial Relations Commission. That’s what makes up P4. Sir, it’s probably more a matter for my friend to explain what the story is in relation to this notice. I can only explain it from the company’s perspective and we would seek to underscore, Commissioner, the first time that this notice came to the company’s attention was this morning.

PN80

THE COMMISSIONER: Sorry, the stamp on it is what?

PN81

MR PARKER: It appears to be 9 November 2005.

PN82

THE COMMISSIONER: And that was a stamp who by, by Alcoa, was it?

PN83

MR PARKER: Sir, I can’t read the stamp. I don’t know what it is. It may be a stamp of the Commission. It may be something else. I’m instructed that it’s not an Alcoa stamp, whatever it may be. Sir, in relation to that notice - - -

PN84

THE COMMISSIONER: Sorry, was the document found from - did you obtain this from Alcoa, Mr Parker?

PN85

MR PARKER: Yes, sir. Yes, sir. That’s the document I’m bringing to your attention, the document that Alcoa has found and has been brought to my attention for the first time this morning. Sir, that appears to be and it may well be the notice that Mr Trotter was referring in the discussions I’m instructed took place between himself and Mr Allen after the industrial action commenced on Friday afternoon.

PN86

There are a number of points that we seek to make in relation to that notice. I can make them - in brief, briefly now, and go further later after the outline. But, sir, we’d say service by facsimile is not good service. There are authorities on that to the extent the authorities are equivocal. This facsimile number at the top of the page - sir, I’m not sure whether that’s the number that it was sent to or that’s the number that it has subsequently been forwarded to other officers or the company.

PN87

But I’m instructed that it appears that this facsimile was sent to a facsimile at Wagerup refinery. It was not sent to Alcoa’s head office in Western Australia and Booragoon and, importantly, it was not sent to where I’m instructed Mr Allen - the office Mr Allen usually operates out of which is in Pinjarra. Sir, I’m instructed it was not even sent to the address that the previous 170MO notice, P2, the facsimile address it was sent to.

PN88

Sir, the company is at a loss to understand why such an important document, or what would seem to be such an important document is sent in such - what I can only describe with respect, sir, as a slap-happy way, if it was intended on behalf of the union to give the company the company’s right to 3 clear days’ notice of protected industrial action. Sir, quite apart from issues relating to whether facsimile service is proper service and, secondly, whether in the circumstances the way it appears that the union has sought to send this notice to the company can ever be held to be properly bringing the matter to the company’s attention, consistent with the purposes of section 170MO(2).

PN89

Quite apart from that, sir, on a brief reading of the notice today, it is manifestly inadequate to service any protection to the industrial action that occurred from Friday, and I’m instructed continued throughout Saturday and Sunday and I’m instructed continues in some form today. It’s manifestly inadequate to protect that action in any way. It refers only to stop work meetings in a vague sense. It refers to a very broad period of time and it refers to, it would seem if you interpret the third paragraph which says, “The meeting” - singular:

PN90

- will determine on each occasion the time to resume work.

PN91

whatever that means:

PN92

This will continue until all of the relevant shifts have held a meeting.

PN93

Sir, at best - at best - it contemplates one meeting for each shift and does not contemplate employees leaving the site and taking strike action. So, sir, the notice is, as I say, manifestly inadequate to serve as any protection for the industrial action that the company has been subject to and we would say continues to be subject to at the moment.

PN94

Sir, I think that probably completes the background, if I can put it that way, sir, which I have attempted to set out relatively comprehensively so that, as we mentioned earlier, almost on the assumption that you’d come to this matter without knowledge of that further background and what had been put to Lacy SDP on Friday night. With those points the company would assert, as I have already submitted, that the jurisdictional requirements in relation to industrial action are met. Industrial action is happening. Industrial action, the company would assert, is threatened, impending or probable, including tomorrow. If necessary, evidence will be called in support of the company’s position in that regard. To that end the company would have witnesses that are available to appear today, sir, because the company does wish to proceed with all expedition.

PN95

Secondly, the work is the subject of and regulated by a certified agreement, albeit an agreement where the normal term has expired and if anything further was needed, sir, we would say at least some of the action, and it seems all of the action, on the evidence, is in support of claims for a certified agreement if another jurisdiction was needed.

PN96

Sir, really it seems that the key issues are whether or not this action is protected. On the brief outline that I have set out, those are the arguments that the company would be seeking to make and flesh out with authorities if need be in relation to why the action that has occurred over the weekend and which continues to occur and indeed any action which would be pursuant to this notice or any other action would not be protected. The other factor, sir, is simply discretion.

PN97

Sir, can I say very briefly the industrial action that’s occurred has had a serious effect on the company. As I have said, the only contingency step that the company was able to take was to try to continue to operate the refineries that it operates and also the mines as need be using staff employees. That can only go on for so long. Sir, it’s one of the clear prejudices the company suffers from not being given the 3 days’ notice which is its right under the Act in that the company was given no opportunity to prepare for the snap action which commenced on Friday afternoon and I’m instructed in various forms has effective continued and it continues now.

PN98

Sir, the implications of not being able to at some point continue to run the refinery safely using the skeleton staff, and not being able to run the refineries in such a way that ongoing maintenance which I’m instructed occurs frequently and on an ongoing bass occurs - it’s been put to me that effectively the health of the refinery is declining. That can only continue for so long to such a point where the company will be forced to take steps to shut down the refinery. Indeed, those steps would take a considerable period of time, as I have already outlined.

PN99

Sir, suffice to say if that were to occur the company would suffer significant loss and damage. I’m instructed that not being able to respond quickly to various occurrences in relation to the refinery plant has led to production being impacted upon but it’s anticipated that production will be further impacted on as the health of the refineries declines. Thirdly, sir, in relation to the mines, the company will get to a point where it is not producing bauxite which is needed, on instructions, sent to refineries to continue the process.

PN100

Sir, that’s an outline of the company’s position and, as I say, the company would seek to press with some urgency a hearing in relation to final section 127 orders. If it emerges that that hearing is going to continue past 4 pm today, or if there are necessary adjournments which would take hearing beyond 4 pm today, I’m instructed to seek interim orders until the matter can be finally heard and determined. But, sir, that’s perhaps jumping the gun a little but. It may well be that the proceedings are over before 4 pm and that critical deadline in the - which is critical in the view of the company, will not be met - will not need to be met.

PN101

Sir, as I alluded to earlier - - -

PN102

THE COMMISSIONER: It doesn’t sound like 4 pm in y submission is having much of an impact maybe.

PN103

MR PARKER: Sir, I don’t know that it would be correct to say that the issuing of the interim orders on Friday night had no impact and that is one of the reasons why the company is back before the Commission to effectively continue with the process that the company started to seek a 127 order in relation to action which is not protected. Of course, there are issues in relation to enforcement of orders and those are matters for the Court but, sir, an interim order that expires at 4 pm - there are practical issues surrounding the enforcement of that particular order and indeed the company is pressing for a final order which no doubt if breached in a similar way would leave options open to the company seek enforcement in another place.

PN104

But, sir, the issue is not enforcement of orders, I would submit with respect, it’s the issuing of orders, whether the relevant circumstances exist when this matter is before you and whether as an exercise of your discretion you are minded to grant orders to the company. May it please the Commission I don’t know how I can assist further.

PN105

THE COMMISSIONER: That’s fine, thank you, Mr Parker. Yes, Mr Lourey?

PN106

MR LOUREY: Thank you, Mr Commissioner. I’m instructed to seek a brief adjournment for the purpose of taking some further instructions.

PN107

THE COMMISSIONER: How long would you like, Mr Lourey?

PN108

MR LOUREY: Perhaps no longer than 10 minutes, sir.

PN109

THE COMMISSIONER: Very well.

PN110

MR LOUREY: I was briefed only late this morning and there are a few things arising from my friend’s submissions.

PN111

THE COMMISSIONER: That clock says what, just on half past. I’ll be at quarter to.

<SHORT ADJOURNMENT [12.25PM]
<RESUMED [12.45PM]

PN112

THE COMMISSIONER: Mr Lourey, before you start I might just say for the record that I have located within the registry a letter of 9 November 2005 from the AWU to the Registrar which gives notice in terms of 170MR. It says:

PN113

Attached is the notice of giving of authorisation to engage in industrial action form R41, rule 59, between the AWU WA branch and Alcoa World Aluminium Australia.

PN114

Also attached to that notice is a copy of the letter dated 5 November 2005 from Mr Daly to Mr Stewart Allen and it seems clear from the two documents that the stamp on photocopy on P4 is a photocopy of the stamp of the registry so I’d say that the document which was P4 is originated from the registry. Yes, Mr Lourey?

PN115

MR LOUREY: Thank you, sir. Thank you for the opportunity to obtain some further instructions. My friend is correct in that the matters that bring us here today certainly concern the engagement of the parties in the negotiation of an agreement to be certified in the Commission, an agreement pursuant to this Act. But the respondent, sir, does not agree with the other assertion made and my instructions are that specifically the respondent does not concede any element of the jurisdiction in respect of the application which is made here pursuant to section 127.

PN116

The respondent, I’m instructed, puts the applicant to proof on all matters necessary to ground those orders. We say specifically that those orders should not issue. We say further that interim orders should not issue for any term beyond the expiry of the existing orders made ex parte by Lacy SDP. I did manage to obtain instructions during the short break, Mr Commissioner. The applicant’s letter to the Commission dated today and in fact my friend’s submissions refer to in terms of the letter, and I speak of the letter of 14 November 2005 on Blake Dawson Waldron letterhead to the Registrar in the second paragraph.

PN117

THE COMMISSIONER: We might just make that P5, if everybody is happy with that.

EXHIBIT #P5 LETTER FROM BLAKE DAWSON WALDRON TO THE REGISTRAR DATED 14/11/2005

PN118

THE COMMISSIONER: That’s the actual - that’s just the letter, the one-page of the attachments.

PN119

MR LOUREY: I’m sorry, sir?

PN120

THE COMMISSIONER: This is the 14 November 2005 letter.

PN121

MR LOUREY: That’s correct, sir.

PN122

THE COMMISSIONER: It was referred to by Mr Parker and I was just thinking for everybody’s ease of - we might just mark that as P5.

PN123

MR LOUREY: P5, sir. The reference in the last sentence of the second paragraph there is industrial action over the weekend and that industrial action being continuing. I managed to obtain instructions - - -

PN124

THE COMMISSIONER: Sorry, where’s that? In the - - -

PN125

MR LOUREY: The last sentence in that second paragraph of the letter.

PN126

THE COMMISSIONER: “Notwithstanding” - yes.

PN127

MR LOUREY:

PN128

Notwithstanding making of the orders and effective service of the orders there -

PN129

THE COMMISSIONER: Yes.

PN130

MR LOUREY: So, certainly, sir, one of the things that are not conceded there has been effective service of those orders. But it’s asserted or contended that there is industrial action over the weekend and that industrial action is to continue. I have and my friend identified - albeit couched with some equivocation - that there was said to be bans in respect of the performance of certain work at I think the Huntley Mine Site.

PN131

I have managed to obtain instructions that there is in fact no impediment whatsoever to the performance by AWU members of any work by way of relief in the positions identified and I’m advised, Mr Commissioner, by my client that there is in fact nothing occurring at any site identified by my friend that might be arguably described as industrial action. So we say that as we speak, our submission is that there is in fact no industrial action taking place. And that’s without conceding that there has been anything occur.

PN132

THE COMMISSIONER: You won’t concede there’s been any industrial action over the weekend?

PN133

MR LOUREY: My instruction, sir, is that no concessions are made. In terms of there being a hearing of the matter before you we’re unprepared for that hearing, sir. Certainly there was a significant amount of matters put forward by my friend, proper preparation for a hearing in that vein would require - and my friend alluded to witnesses being available to be able to give the Commission evidence of the things for which it was contended but we would need, sir, at least the opportunity to take instructions and with respect to my instructing clients to date, present now, the matters that are contended require instructions from the persons said to have been involved in the matters described.

PN134

So there would be little prospect, sir, of them being able to adequately represent the respondent’s position in this application without that opportunity to obtain proper instructions, at least even from the perspective of being able to adequately cross-examine the witnesses whom the applicant proposes to call, never mind the opportunity to prepare submissions and indeed evidence from the respondent were that thought necessary.

PN135

Sir, my instructions are that that being the case, to canvass whether there is a prospect of the matter being adjourned for the moment so that we might perhaps devolve into conference so that perhaps further discussions might take place between the parties, perhaps with the assistance of the Commission, on the matters the subject of the application.

PN136

THE COMMISSIONER: I might have missed it but I think you asserted that at the moment there is no problems with members of the AWU at Huntley site acting as group leaders and I think - - -

PN137

MR LOUREY: My instruction, sir, was that there is no obstacle, no impediment to AWU members performing that work that was identified or indeed any other work.

PN138

THE COMMISSIONER: And you said something about there is no industrial action occurring as we speak.

PN139

MR LOUREY: Specifically, sir, I said there is nothing occurring. My instructions are there is nothing occurring that would be arguably even described as industrial action, as we speak nor has there been at any point today. So we take issue with the contents in that second sentence or in that last sentence of the second paragraph of P5. There has been nothing occurred today which even arguably be described as industrial action.

PN140

THE COMMISSIONER: Well, I think the second - I mean, I think the sentence goes further, doesn’t it? It talks about “over the weekend” and I understand that your instructions are that you’re not conceding that that has happened?

PN141

MR LOUREY: Has occurred, but it goes on to talk about industrial action continuing. Now, the letter is dated - P5 is dated today, sir, and my instructions are that that is not capable of being a correct representation of facts, whatever the evidence might be.

PN142

THE COMMISSIONER: I just - as you’d be aware, section 127(3) of the Act requires the Commission to hear and determine an application for an order under section 127 as quickly as practicable.

PN143

MR LOUREY: I appreciate that, sir.

PN144

THE COMMISSIONER: And therefore everybody understands that when these matters come before the Commission they have to be dealt with expeditiously more so than other matters which can take greater time.

PN145

MR LOUREY: I appreciate that perfectly, sir, but that doesn’t detract from the need for or in fact the right of a party to such a matter to be able to properly prepare argument to be put before the Commission.

PN146

THE COMMISSIONER: I realise that might take an hour or so or in some matters it takes - sometimes a witness has to be made available and so forth. But I guess I have to ask, is there any undertaking, absolute undertaking being given at the moment that no industrial action will occur - if an adjournment is granted no industrial action in support of the proposed certified agreement will be undertaken prior to the resumption of the hearing of the section 127 application?

PN147

MR LOUREY: I can just briefly take instructions on that point, sir.

PN148

THE COMMISSIONER: Thank you. Yes, Mr Lourey.

PN149

MR LOUREY: Commissioner, thank you for that opportunity. I wonder if I might prevail further on the Commission for a further adjournment in order that instructions get taken from or sought from - or information and instructions be sought from people who are not present. You’ll appreciate, sir, that the matter has been listed this morning with very short notice and Mr Trotter and Mr Daly are present but there may - well, there is certainly the need to canvass the views of persons who are not here, with respect.

PN150

THE COMMISSIONER: Well, just hold it a second, Mr Lourey, I’ll hear from Mr Parker. Yes, Mr Parker.

PN151

MR PARKER: Sir, can I say quickly - and I’m sure you’re conscious of this, sir - but time is not on the applicant’s side and it surprises me greatly that the union appears before you today without proper instructions, supposedly with other persons that need to be consulted in circumstances, sir, where the union has known about the fact of these orders since Friday night. Whatever is not conceded in a technical sense on the part of my friend, my instructions are crystal clear about what occurred over the weekend. It was a campaign of industrial action.

PN152

My instructions are crystal clear also about the continuation of that albeit there’s been some return to work. They are firmly very clear and we have heard nothing on this in what’s been submitted by my friend in seeking to go to conciliation, that there will be further industrial action tomorrow. None of those things have been dealt with and we’re very concerned that the only instructions my friend seems to be getting are from some remote site rather than having those persons present in the Commission. When good notice has been given to the union, even if you only count what’s occurred this morning when papers were served on the federal office by hand the way they should be served, and secondly, also sent to the state branch.

PN153

Sir, I’m very surprised about this and it’s a great concern that here we are at this hour and instructions are still being sought on very limited matters. Sir, all I can say is that 5 minutes here or there may not be a problem in the context of what I’m submitting but, sir, if there are matters to get instructions on I’d be grateful if there are further matters the Commission is to inquire about - and certainly I have already raised one that’s been raised by the respondent that has not been addressed yet, and that is the industrial action on my instructions that is due to occur tomorrow - that there be comprehensive instructions about those matters gathered in this very short adjournment, if the Commission is minded to grant it.

PN154

But, sir, I would say with the timing of interim orders, time is not on the applicant’s side and I have already made plain the position in submissions about my instructions. May it please the Commission.

PN155

THE COMMISSIONER: Thank you, Mr Parker. Yes, Mr Lourey, while I proposed and agreed to the request for a 5-minute adjournment I have already drawn your attention to my obligations under section 127(3) and I look forward to your answer to my question. In any event, I’m not looking - if there was to be a short adjournment I’m not looking for a lengthy adjournment. I was thinking of say first thing in the morning at the very latest.

PN156

But I’d hear from each of you further on that and of course I’m aware of
Mr Parker’s submission that he may seek interim orders in any event and I certainly have - I’m keeping my mind open in that respect but I will adjourn for 5 minutes and I’ll be in 5 minutes.

PN157

MR LOUREY: Sir, I can say further, if the matter was to proceed first thing in the morning that would certainly afford an opportunity to obtain instructions to - - -

PN158

THE COMMISSIONER: I’ll wait till I hear what your advice is in respect of any undertakings. I’m talking about solid watertight undertakings that you might - if you can’t give them, just tell me. But that’s what I’m looking for.

<SHORT ADJOURNMENT [1.03PM]
<RESUMED [1.15PM]

PN159

THE COMMISSIONER: Yes, Mr Lourey?

PN160

MR LOUREY: Commissioner, the respondent is not able to give any undertakings in respect of matters pending the conclusion of these proceedings. I’m instructed to oppose the issuance of orders and certainly there needs to be a proceeding. In the interim we oppose the issuance of interim orders as sought by my friend, I suspect sought on the basis that they replace the orders currently in place, the interim - or the ex parte orders made by Lacy SDP on the basis that there is at this point nothing that can be described as industrial action occurring or threatened or probable or pending.

PN161

The parties are scheduled to meet this afternoon. I understand that’s been schedule for some days. The furtherance of the negotiations or the issuance of the agreement on terms of a new agreement and we urge the Commission to not issue further interim orders but to adjourn the matter to allow the applicant to have its application heard at a time convenient to the parties. I do again made the - - -

PN162

THE COMMISSIONER: So you’re saying that whilst you’re instructed that there’s nothing happening at the moment which could be characterised as industrial action, you can’t undertake it. There will not be any industrial action between now and tomorrow morning.

PN163

MR LOUREY: That shouldn’t be interpreted as a comment whether there may be or may not be, sir. The respondent will simply not - is not able to make any - to give any undertaking is the legal sense of that term, Commissioner, if that be the case.

PN164

THE COMMISSIONER: Yes, I can - - -

PN165

MR LOUREY: There is certainly nothing known in terms of - there is no undertaking given. I do again, sir, invite the prospect of breaking into conference to see whether that might afford the parties’ appreciation of mattes to a state that appears not to be the case at the moment.

PN166

THE COMMISSIONER: Thank you, Mr Lourey.

PN167

I have two options. I have one option of proceeding to hear the application for interim orders now, let’s deal with it, get the evidence, let’s go. I have a problem with my timetable in that that I would have to break for 2 o’clock for that and reconvene at the end of the other matter. I have the option of saying let’s see - if the parties want to confer to see if something can be arranged.

PN168

If the parties are already meeting this afternoon in the context but nevertheless in an context I think I’d set the thing down for first thing in the morning for the matter of further - hearing the application for final orders. So it’s a question of whether we have a bit of a conference and see where that takes us or we get on with the application for an interim order.

PN169

Mr Parker?

PN170

MR PARKER: Sir, it’s quite apparent the unions - it’s been put that they’re not able to I have an undertaking. They’re giving no undertaking that further industrial action will not occur. But, sir, I have already outlined what my instructions are about what’s said to be the industrial action that’s happening and what’s anticipated could be further industrial action tomorrow and, sir, we would say that the fact an undertaking has not been given in support of an application for an adjournment is absolutely pertinent to the exercise, sir, of your discretion in relation to the issuing of orders. But also, sir, we say that goes to whether or not you’re in a position to form a view in relation to the jurisdictional facts.

PN171

Sir, can I say very quickly because I’m conscious of the time - it’s 1.25. Sir, the interim orders issued by Lacy SDP expire at 4 pm. I understand, sir, that you have prior commitments in other proceedings to commence at 2 pm and I’m very concerned that not only is there insufficient time to seek to proceed to the further hearing and it seems that that’s probably not an option that’s available this afternoon, there may not even be enough time to call sufficient evidence in support of an interim order.

PN172

Sir, I would submit that based on what’s been submitted to you and the fact of the union not giving an undertaking while still seeking an adjournment, there is a sufficient basis for you to form the relevant view in relation to the issuing of an interim order. Sir, I don’t put that as something the equivalent of a no case to answer. Sir, if you’re of the view that you cannot form that view, and you’re unclear as to whether there’s a sufficient basis for you to form the views necessary to have the jurisdictional basis for a further interim order, notwithstanding what I have submitted and notwithstanding what has been submitted from the other side, then, sir, I would seek to call evidence. That’s going to have to be a significantly abridged case and may not be concluded before you have to adjourn for other proceedings.

PN173

Sir, I guess if we go down that option which I’d submit would be appropriate to go down, sir, if you don’t feel that you have sufficient basis to form the view for interim orders through to tomorrow - through to the conclusion of proceedings tomorrow or for determination of the application, then I would need to proceed to present evidence in support of an application for interim orders until this matter can be heard and determined finally.

PN174

THE COMMISSIONER: I am concerned that it is being submitted to the Commission that notwithstanding the interim orders that were issued by Lacy SDP on Friday, nevertheless industrial action has occurred over the weekend. In the circumstances I propose to proceed to hear an application for interim orders. I will commence those proceedings forthwith and I will adjourn at 2 o’clock for a period and I will resume those proceedings as soon as I can this afternoon. I will stay here until I decide on whether or not an interim order should be set down.

PN175

I foreshadow to the parties that it would be my intention that the matter as to whether orders should be issued will be set down for hearings tomorrow morning commencing at 9 am. Do you want a moment, Mr Parker, or are you right to go?

PN176

MR PARKER: Sir, a brief moment.

PN177

THE COMMISSIONER: I’ll give you 5 minutes.

PN178

MR PARKER: Thank you, sir.

<SHORT ADJOURNMENT [1.23PM]
<RESUMED [1.46PM]

PN179

THE COMMISSIONER: Yes, Mr Parker?

PN180

MR PARKER: Commissioner, if I may, thank you for that short break and, sir, as often happens in short breaks people talk. I’m instructed that there have been some discussions between the parties. Sir, I’m not sure where that’s going to take us but as a practical matter I’m conscious of the time and I’m conscious of how long those discussions have taken already. Sir, what I propose and what I’m instructed to do is to seek an adjournment until you are able to reconvene this afternoon as I understand -excuse me, sir.

PN181

Sorry, sir, as I say, my instructions are to seek an adjournment until you’re able to reconvene just so that the company can understand better what’s been put during those discussions, respond and hopefully put a clear position back to the Commission about whether proceedings are needed this afternoon or not. Sir, I’d leave it as a matter for you as to whether you’re prepared to grant that adjournment.

PN182

THE COMMISSIONER: Thank you, Mr Parker. Mr Lourey, do you want to say anything?

PN183

MR LOUREY: No, I don’t oppose that at all, sir.

PN184

THE COMMISSIONER: Very well. I propose to adjourn the matter and we will resume hearing at 3 o’clock.

<LUNCHEON ADJOURNMENT [1.48PM]
<RESUMED [3.57PM]

PN185

MR PARKER: Commissioner, thank you for your patience this afternoon.

PN186

THE COMMISSIONER: It hasn’t been patience. I have kept myself occupied.

PN187

MR PARKER: Thank you, Commissioner. Commissioner, can I confirm that I continue my appearance with my friend Mr Finger and with me from the company is Mr Stewart Allen. That’s important because I’m instructed that the parties have reached a consent position. Sir, if I may put that on the record.

PN188

Sir, from Alcoa’s perspective, as already outlined to the Commission, Alcoa is concerned that action since last Thursday alleged to be in breach of section 127 interim orders issued by Lacy SDP over the weekend has resulted in major financial losses to Alcoa so far and consequential losses will be substantial to avoid a continuation of that damage. I’m instructed that Alcoa agrees to the following consent position.

PN189

The AWU withdraw the section 170MO notice dated 9 November 2005 without prejudice to its right to serve a new notice down the track should that be necessary. The next point: that the AWU undertakes no further industrial action in support of a new certified agreement without prejudice to its right to take protected industrial action under a new 170MO notice. Next point: any person leaving site for purposes of attending the 15 November 2005 action do so from dayshift only and without any entitlement to payment and (that is, no impact whatsoever on nightshift tonight and nightshift tomorrow).

PN190

Within that point, if miners leave site during the dayshift on 15 November 2005 the company will use staff to ensure sufficient bauxite suppliers. The next point: consent direction from Commissioner Thatcher - with respect, sir, that’s part of the agreed position but obviously that’s a matter for you to continue to set out the consent position. Consent direction from Commissioner Thatcher that the parties meet this afternoon and continue to meet each day up to and including at least Friday, 18 November 2005.

PN191

The last point: Alcoa will not pursue an extension of the interim section 127 order and will provide a report back to the Commission by 4 pm Friday,
18 November 2005, copy to the AWU. Sir, I’m instructed that, as I say, there is a matter there that you would need to be satisfied the Commission is prepared to issue that direction but I’m instructed that subject to confirmation of the AWUs consent to that consent position, that is the position my client is prepared to consent to.

PN192

THE COMMISSIONER: Have you got a copy of those words for me?

PN193

MR PARKER: Yes, sir.

PN194

THE COMMISSIONER: Thank you, Mr Parker.

PN195

MR PARKER: May it please the Commission.

PN196

THE COMMISSIONER: Yes, Mr Lourey?

PN197

MR LOUREY: Thank you, Commissioner, and if I could also thank you, sir, for the way you’ve given the parties to continue discussions in these four walls. Needless to say the AWU doesn’t concede that there has been a breach of any orders or the Senior Deputy President or that there has been any loss or damage sustained as a result of any breach. But in the interests of maintaining industrial harmony and working towards a replacement agreement to be certified pursuant to the Workplace Relations Act 1996 and for the benefit of the applicant and of the respondent and its members, the AWU does indicate formally its agreement and acceptance of the consent position as outlined by my friend. You have just received I think a copy of a five-point plan.

PN198

THE COMMISSIONER: Yes, I have a copy.

PN199

MR LOUREY: There is a commitment to follow that process and to hope that that leads to the impasse in negotiations being broken and productive development from there. Unless you have any questions for me, sir, I have got no further submission to make.

PN200

THE COMMISSIONER: No, that’s fine. Thanks, Mr Lourey.

PN201

MR LOUREY: Thank you, Commissioner.

PN202

THE COMMISSIONER: I’m pleased that the discussions have taken place during the adjournment and that the parties have reached a consent position. Yes, I am agreeable pursuant to section 170NA of the Act to give a direction by consent that the parties meet this afternoon and continue to meet up to and including at Friday, 18 November 2005 with a view to reaching a new certified agreement.

PN203

In saying that I could also add that if necessary - and I see no reason for this to happen - but if necessary and worst comes to worst, the bottom line is that the Commission is always available to assist the parties by consent in that process if required. If I can assist Western Power - and I’m not saying that in a negative way, I can certainly help maybe Alcoa rather than the stoppage, any stoppages that may occur. So that’s an invitation to you.

PN204

Yes, I will include in my diary a report back to the Commission - actually I won’t because I notice that the consent position is that by that time at the latest. So, hopefully I might receive advice and I can set that down at an early stage.

PN205

Just the other couple of things I wanted to comment on and that is I just want to draw the parties’ attention to the fact that regulation 58A was inserted in the Workplace Relations rules as from 1 July 2005. Regulation 58A(1) now says, and this is as a result of Blue Scope, et cetera:

PN206

A notice under subsection 170MO of the Act of the intention to take action may be given to each other negotiating party personally or by post or facsimile transmission.

PN207

Secondly, as well as directing that by consent of the parties meet this afternoon I would only hope that there would be discussion between yourselves so that if either party, now that there is clearly a bargaining period - and if either party wants to serve a section 170MO notice on the other, can you please discuss amongst yourselves of how that - who is the contact, what’s the contact number, what’s the postal address or whatever, so that at least that won’t happen. If it has happened this time I haven’t heard enough about it but at least there should be a clear understanding that the if the employer wants to serve the union, this is a contact person, or this is a facsimile, this is the hotline, and vice versa.

PN208

The only other thing I would just draw attention to the parties - or to the union anyway - to that decision of Wilcox J in the Federal Court in respect of the meaning of “working days” as it is applied under 170MO(2)(b) if that hasn’t that should be readily available to you. But I think that’s certainly authority which I have seen used around the traps. So that may clear up any misunderstanding about when action is taken under MO, what time period as a minimum is needed.

PN209

If there’s noting further I hope - I wish you well in your discussions this afternoon. I’m sure that it will continue. If it continues in this vein I wish you well. Thank you very much. This matter is adjourned.

<ADJOURNED ACCORDINGLY [4.07PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #P1 LETTER TO CHAPMANS SOLICITORS DATED 12/11/2005 PN30
EXHIBIT #P2 170MO NOTICE PN37
EXHIBIT #P3 INITIATION OF BARGAINING PERIOD PN37
EXHIBIT #P4 LETTER FROM MR DALY TO MR ALLEN DATED 09/11/2005 PN75
EXHIBIT #P5 LETTER FROM BLAKE DAWSON WALDRON TO THE REGISTRAR DATED 14/11/2005 PN117