AG2005/3736, Transcript of Proceedings [2005] AIRCTrans 2429 (29 November 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13496-1

COMMISSIONER RAFFAELLI

AG2005/3736

APPLICATION BY QANTAS AIRWAYS LIMITED & AUSTRALIAN AND INTERNATIONAL PILOTS ASSOCIATION
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/3736)

SYDNEY

9.41AM, WEDNESDAY, 16 NOVEMBER 2005

PN1

MS H McKENZIE: I seek leave to appear on behalf of Qantas Airways Limited. I've got MS S BUSSELL from Qantas with me, along with MR J HAILES and MS P EMERY.

PN2

MS A STARKE: I appear for the Australian International Pilots Association. I seek leave to appear. Appearing with me today is MS E JENSEN and
CAPTAIN I WOODS, the newly elected president of our organisation. I would also like to seek leave for Ms Jensen to appear.

PN3

THE COMMISSIONER: I am sure leave is not opposed on either side, and it's granted. Yes Ms McKenzie.

PN4

MS McKENZIE: Commissioner this is an application for certification of an agreement made under Division 2 Part VIB of the Act. I understand, as late as this morning, that there will be an application made for an adjournment. We wish to be heard on that, and we will be opposing it but it may, in the circumstances, be more appropriate to hear that application first so that I can respond to it and then proceed, rather than go on with the submissions in relation to the certification at the moment.

PN5

THE COMMISSIONER: Yes, thank you. Yes Ms Starke.

PN6

MS STARKE: Thank you, Commissioner. Might I just say that at the outset we did foreshadow to Qantas yesterday that we would be seeking an adjournment, and indeed we despatched a letter to Qantas to that effect yesterday afternoon. It might be of assistance to the Commission, in view of the fact that this application, this hearing, has in fact been deferred once before. If I briefly identify a time line surrounding the application for certification, a number of inadvertent administrative errors that have been identified in the new agreement and, more importantly, the emergence of an issue between the parties concerning a memorandum of understanding that has not yet been finalised.

PN7

THE COMMISSIONER: Yes.

PN8

MS STARKE: Commissioner, since the issue relating to the memorandum of understanding remains in contention AIPA approached Qantas yesterday by telephone and letter to have the certification hearing postponed in order to attempt to resolve the matter. Further, AIPA asked Qantas to consent to have the matter re-listed for certification on a further date. We suggested 22 November. Unfortunately, Qantas refused our request for today's hearing date to be vacated, to allow the parties to have discussions to resolve the matter. In terms of the general time line Commissioner, the ballot for this new agreement closed on Thursday 3 November.

PN9

The form R28 statutory declaration accompanying the application for certification of that new agreement was in fact made by Captain Robin Holt, AIPA's then president, on that same date that the ballot closed. That is on 3 November 2005. AIPA's elections for office bearers, as it turned out, closed the following day. That is Friday 4 November. AIPA's annual general meeting, at which the office bearers were formally declared, took place on Monday 7 November. The application for certification was originally listed for that same date Commissioner. That is Monday 7 November, at 2.30 pm.

PN10

A number of matters, as I understand it, concerning drafting inaccuracies in the new agreement were identified by a member of our organisation, Captain Gary Duggan, a former president of AIPA, and those issues were raised with Qantas on the same date of the AGM; the same date that Captain Ian Woods, our new president, was declared in office, and they were raised with Qantas on that same date. On 7 November in an email to Mr Julian Hailes, Qantas' IR manager. I mention all those dates because there was a very fine time line of convergent events, and Captain Ian Woods, in particular, wanted an opportunity to make sure that the application was to proceed in his understanding of all matters having been concluded.

PN11

Additionally, the parties had in fact agreed during EBA7 negotiations to review the certified agreement, with a view to removing provisions that do not pertain to the employment relationship, and which have been held pursuant to the decision of the High Court of Australia, in the Electrolux case, cannot be included in the certified agreement. Even more importantly, the parties agreed to transfer any provisions that were considered to contain non pertaining matters ..... agreements between the parties. The substance of those non pertaining matters is not in issue between the parties.

PN12

However, the document, or vehicle, containing the provisions, the memorandum of understanding that I've referred to already, has not yet been settled between the parties. In particular the application of the memorandum of understanding in terms of its duration and in effect its continued operation past the nominal expiry date in EBA7 has not been agreed. As a result of those administrative inaccuracies that needed to be checked, and the fact that the MOU had not been finalised as at 7 November, AIPA's newly elected president on my right, Captain Ian Woods, sought to have the original hearing date for certification deferred to today's date. Qantas agreed to defer the hearing of the application.

PN13

Shortly after Captain Ian Woods' declaration in office, ie two days later on 9 November, AIPA received Qantas' comments on the inadvertent inaccuracies that had been raised. That was Friday of last week, at about 3.45. Unfortunately as - I didn't want to draw too much attention to the state of my face, Commissioner, but I wasn't in a position to respond to the matters on Monday the 14th. I was undergoing surgery. However, all the matters have now been considered and as I understand it there are no matters of contention between the parties on those administrative inaccuracies. However, the MOU remains unsettled.

PN14

The parties met on Thursday 10 November to discuss the agreement. Currently the parties have exchanged five drafts between them and essentially the point of contention concerns the period of operation of the MOU. During the discussions in the EBA negotiations AIPA asked for the agreements to be housed in a deed. Qantas refused to enter into a deed but agreed to enter into a memorandum of understanding, and we agreed to that position. AIPA drafted a clause that in effect provided that the MOU would come into effect on certification of EBA7 and would continue in force at least until the nominal expiry date of EBA7.

PN15

Subject to another provision, and the provision provided that notwithstanding the passing of the nominal expiry date of EBA7 if the parties have in fact commenced negotiations for a new agreement then the MOU would continue to be in force until the new agreement is certified. Essentially they are the provisions that are in issue. Qantas has in fact rejected the provision that the MOU would continue in force while the parties are in negotiations for a new agreement, until the new agreement is certified. However Qantas has agreed to expand another provision to provide for the MOU to be extended, by agreement between the parties.

PN16

Importantly, during the course of EBA7 discussions on this issue, the understanding between the parties was that despite the non inclusion of the non pertaining matters in the new agreement the provisions would continue to operate de facto, as they have always operated in various certified agreements. All the provisions were at various stages agreements entered into between the parties as a result of enterprise bargaining. Significantly, AIPA's understanding was that the MOU would continue to operate beyond the nominal expiry date until a new agreement is certified.

PN17

At no stage during negotiations did Qantas disclose or even suggest to AIPA that the period of operation of the MOU would be anything less than what would occur under a certified agreement. Or that the MOU would not have the same de facto operation beyond the nominal expiry date. Qantas' position on this aspect came as a surprise to us during the course of drafting the MOU. The position that is now ventured by Qantas was not the position ventured during negotiations. Had it been we would have been in discussions on it. It's important to note, Commissioner, that the explanatory note accompanying the distribution of the new agreement did not disclose that limitation to employees.

PN18

In the circumstances AIPA has obtained external legal opinion that raises issues about the validity of the ballot. In particular, the advice notes that the ballot process may not have complied with s.170LJ(3) and s.170LT(5) of the Workplace Relations Act. In light of that advice received AIPA wrote to Qantas yesterday to seek their consent to the postponement of the certification hearing, pending resolution of the issues in the advice. We also proposed that the hearing date be set down for 22 November. Our letter was despatched to Qantas by email at 3.12 pm. according to our clock. Qantas responded very promptly; indeed six minutes later, at around 3.18 refusing to consent to a postponement. In the circumstances we consider that Qantas has been dismissive of our concerns.

PN19

Commissioner I have been instructed to hand up to the Commission a copy of the advice, external advice that has been received by AIPA, that I would refer to my friend on that issue. If you have no objection.

PN20

MS McKENZIE: I do object. At the moment we're dealing with an application for an adjournment. If there is legal advice which AIPA has received which goes to issues which the Commission has to satisfy itself in relation to certification then that's the appropriate time to deal with that, and once the application for adjournment has been dealt with we will put our submissions in support of the certification of the agreement, and AIPA can respond, and if they have got legal advice which will provide some basis for a submission then the submission will no doubt be put and I will have an opportunity to respond to it. But at the moment we're dealing with the adjournment.

PN21

In my submission that has got nothing to do with the issue of adjournment. The issues, if there is legal advice that goes to the question of whether the agreement is certifiable in its current form, and whether the Commission can be satisfied to test - I will want to put some detailed submissions about that - it can be relevant to that issue, not to the question of an adjournment. So I object to it being tendered at this stage. If the adjournment application is dealt with we may come back to it.

PN22

THE COMMISSIONER: Yes, what do you say about that Ms Starke?

PN23

MS STARKE: I simply say that goes to the strength of our concerns, Commissioner. This is not a flippant request for a postponement, but we have valid concerns that need to be addressed.

PN24

THE COMMISSIONER: But your concerns are over the inability to reach agreement on the MOU or the deed. This advice doesn't go to that. You're almost changing your line of attack.

PN25

MS STARKE: Provided the issue in the MOU can be settled between the parties the validity of the ballot goes away. Any question about the validity of the ballot goes away.

PN26

THE COMMISSIONER: I'm not sure about that, because if there's a difficulty with the ballot then you might find that any one of your 2000 members - I don't know how many you are, but that many - may very well jump up and down in due course. So we need to be satisfied by that. I don't propose to admit that Ms Starke. It might be something that you go to later. So anyway - - -

PN27

MS STARKE: As the Commission pleases.

PN28

THE COMMISSIONER: Yes.

PN29

MS STARKE: We regret any inconvenience to the Commission, and seek your indulgence by way of a further postponement of the hearing of the application, to allow an opportunity for the parties to engage in further discussions and hopefully resolve this remaining issue in the MOU.

PN30

THE COMMISSIONER: The difficulty we have Ms Starke is that the - what's the guarantee that you're going to reach agreement? You've had over a week now, with the new team, and Qantas. You haven't reached agreement yet. What's the chance of reaching agreement? That's the first thing. Secondly, what's it got to do with certifying the agreement. The Commission's got very limited powers. It must do certain things, and it must not do other things, and the operation of an MOU is of no great consequence. We often facilitate it being part of the file, but it doesn't actually force us or inhibit us. So that's my concerns. What do you say about that?

PN31

MS STARKE: Commissioner it was an essential claim in our log of claims, and it was a matter explained to members when they were voting on the agreement. In the explanatory note it explained what the parties have discussed in relation to these business arrangements.

PN32

THE COMMISSIONER: Thank you Ms Starke. I'll hear from Ms McKenzie. Sorry, yes, do you want to say anything?

PN33

MS STARKE: Would you excuse me for one moment please, Commissioner. Commissioner, Captain Woods wanted me to advise you that the advice was only received by AIPA yesterday and the extent of the concerns were not fully realised until that advice was received. That is the reason for our application today.

PN34

THE COMMISSIONER: But that advice goes to LJ(3), et cetera. But I don't understand how talking about that is going to help you, either of you. If there's a problem you'll have to re-ballot. There's not much point discussing it.

PN35

MS STARKE: It goes to the understanding of employees in relation to the matters agreed between the parties, as disclosed in the explanatory note.

PN36

THE COMMISSIONER: Yes.

PN37

MS STARKE: If it assists the Commission I have a copy of the explanatory note that accompanied the distribution of the agreement.

PN38

THE COMMISSIONER: Is that the one that goes to what is called - it goes to 15 pages?

PN39

MS STARKE: It is 15 pages, yes. And the relevant part of that explanatory note is contained on page 8, under the heading Administrative Issue.

PN40

THE COMMISSIONER: Under the heading Administrative Issue?

PN41

MS STARKE: Administrative issue, and matters not pertaining.

PN42

THE COMMISSIONER: Yes. Where does it say - that just permits the parties to the transfer into an MOU of a range of matters without negotiations. I understand what that means. But there was nothing addressed there about date was it? A living date, or the life of that MOU?

PN43

MS STARKE: Not in the explanatory note, Commissioner. You're correct on that point. But between the parties there was no discussion that is now being - on the issue now being proposed by Qantas.

PN44

THE COMMISSIONER: Or you. That's what I'm saying. It doesn't say how long that MOU would go for, and going from your comments that seems to be the difference. You said the MOU - you wanted a deed, they wanted an MOU. You agreed to an MOU. They then wanted until the certified agreement went to its normal date. Then you say no it could be longer than that. But none of that was a matter that went to members was it?

PN45

MS STARKE: In discussions between the parties in the negotiations Qantas did not say that it will only go to the nominal expiry date. But we were asking for something that would have a long term operation, ie the deed.

PN46

THE COMMISSIONER: Yes.

PN47

MS STARKE: I would also like to state, Commissioner, that in relation to deferring the certification hearing we submit that there is no disadvantage or prejudice caused to either party and the issue, we are hopeful, is capable of being resolved.

PN48

THE COMMISSIONER: Yes, but what happens when we turn up again in a week's time and you say the same thing? I mean I know we're talking of a relatively small period but the desire of those who made the agreement, ie the members, your association and Qantas can't be frustrated by either a company changing its mind and asking for an adjournment, or the Commission deciding to adjourn it for its own reasons. So there's got to be a limit, and my only concern is that Qantas can just not talk to you and on Wednesday enough will be enough and the Commission would certify it. I mean it's not inviting them to do much. Because I'm just saying I don't see - unless we might get to your document in due course, but the Commission is a bit obligated to act. Anyway we'll hear from - any further comments on the adjournment?

PN49

MS STARKE: I didn't hear that, I'm sorry.

PN50

THE COMMISSIONER: Anything else? You've said there's no prejudice and perhaps you're right in the short term.

PN51

MS STARKE: That's right, and also we'll be very hopeful that we can resolve this matter. We're not hoping to frustrate it, we rely upon the good relationships that have always existed between us to resolve these issues. I have been instructed here now, Commissioner, that Captain Woods would actually like to address the Commission.

PN52

THE COMMISSIONER: About the adjournment? Yes Captain.

PN53

CAPTAIN WOODS: Thank you, Commissioner. I heard your comments on why it may be necessary to consider this adjournment. I'd just like to say that this is quite a lengthy document that we wish to table, and it's quite complex, and as you would imagine with the inter relation of the changes in the IR laws and all the other things it's taken 27 pages to explain why this refers to the certification of this agreement. I don't say it's easy to put forward but I think it would be very helpful to the Commission in answering your own question about the going to the validity of the ballot. In other words - you know which is affecting certification eventually. If we could actually give this to you so if the adjournment is granted and we simply find ourselves back here next week without further consultation, then at least you have had an opportunity to consider the information contained in this document and weigh it up against the law.

PN54

THE COMMISSIONER: I think Ms McKenzie has flagged that she's not opposed to the granting of looking at that document but certainly not at this stage. Anyway, thank you Mr Woods. Yes Ms McKenzie, what do you say about all this?

PN55

MS McKENZIE: The basis for the adjournment appears to relate to this memorandum of understanding and, in a secondary way, some legal advice that has been received which raises issues about the certifiability of the agreement. In our submission the question about whether the agreement should be certified is a matter for the Commission to determine, and an adjournment can't assist that in any way. Because the agreement is either capable of being certified or it's not, and the agreement was made in principle between the parties - the employer and the union - back in August. The agreement has now been approved by a valid majority of pilots who voted.

PN56

The ballot took place over a period between 25 October and 3 November. So the agreement has been approved. The application has been filed. The application has been filed in accordance with the Act, with the supporting statutory declarations as required by the rules, and the Commission is now required to determine the application. If there are matters which AIPA now wish to put before the Commission as to why it must not certify the agreement then now is the time to put those, and an adjournment won't assist in that process because at the end of the day it's a matter for the Commission. It's not a matter for the parties to negotiate if it goes to the content of the agreement or the process by which the agreement came to be made and approved.

PN57

If the concern behind the adjournment relates to the memorandum of understanding then that has nothing to do with the agreement as such, and cannot be a basis upon which certification proceeds where the agreement can be delayed any further. As Ms Starke said the matter first came on before the Commission; it was listed on 7 November. At the request of AIPA that hearing was adjourned and Qantas consented to that. It's now on again. There's a suggestion now that it be adjourned again for a period to 22 November. It is unclear what could possibly be achieved during that time, which could in any way go to alleviating the concerns which appear to be raised in this legal advice.

PN58

The legal advice has not been provided to Qantas. I'm not sure when it was actually obtained but it has not been provided to Qantas so that we have an opportunity to consider it, and we may be able to say very quickly none of those things in our view trouble us, and the matter should proceed. Ms Starke has said that there will not be prejudice. When we were written to yesterday afternoon and asked to vacate the hearing date and have it adjourned until 22 November Qantas responded and said, no, we would not consent to that; and also said that the matter has already been postponed once. We're not aware of any basis upon which the agreement should not be properly certified and, in any event, any further delay to the certification will jeopardise the processing of the payments to pilots before Christmas.

PN59

This agreement contains some substantial commitments in relation to back pay. It has been Qantas' stated intention and desire to process those payments so the pilots, who have approved this agreement, get paid prior to Christmas. And we have clearly said to AIPA if this goes on any further that is in jeopardy. Now it may not be prejudice to AIPA but it's certainly going to be prejudicial to its members if the matter is delayed any further. In our submission the appropriate course would be for the matter to proceed this morning. We will then put our submissions to the Commission as to why we believe the Act's requirements have been met and the Commission must certify the agreement.

PN60

If AIPA has any basis for - by reference to the statutory requirements under LJ and LT - putting submissions to the Commission as to why the Commission cannot certify the agreement then the sooner we know what those are the better, and the Commission can rule on them. If, once they have put those submissions, we become aware of a substantial legal obstacle which we are not today aware of, then we may of course at that point want an opportunity to consider that in order to put some submissions in reply to the Commission. But we may not. So in our submission the appropriate course in all the circumstances, and having regard to the Commission's obligations to give effect to the objects, and to determine matters that are before it, we think the matter should proceed this morning.

PN61

And if there are then issues that are relevant to the Commission's determination under the Act which AIPA wish to put they can put them, and the Commission can deal with the application. And it will either do so by certifying the agreement or refusing to certify the agreement.

PN62

THE COMMISSIONER: Yes Ms Starke, what do you say? Do you have a response?

PN63

MS STARKE: Commissioner, we appreciate the administrative arrangements that need to be put in place to accommodate payment of back pay and the implementation of this agreement. We are only seeking to have discussions over the period of the next few days. What we would regard as a significant potential prejudice to our members is in relation to ongoing negotiations between the parties when we commence negotiations for EBA8. That the accommodation currently provided to AIPA under those business provisions is at serious risk on the nominal expiry date. That would be a greater prejudice to our members if we were not in a position to represent their interests in ongoing discussions. That would be a greater prejudice than the delay of back pay and this agreement.

PN64

THE COMMISSIONER: Thank you. I don't propose to grab the adjournment, for this reason. That if in fact Qantas had been neutral about it then the Commission would - on the application of one side wouldn't have been particularly concerned. But Qantas is opposed to it. It's one of the parties that has made the agreement and is entitled to press the Commission to proceed, given that prima facie - and we will get to your objections. But prima facie everything seems to be in order, and the agreement - an order so that the agreement can be certified.

PN65

There is some talk about prejudice in respect of back pay and there's also more long term prejudice which the association has referred to. Well, only they weigh in my consideration as much as the fact that - as I said - one side is opposed to the adjournment. It has already been adjourned once and I'm not confident that you'll reach agreement within a week. You might reach agreement within an hour, I just don't know. It's not a reason to stop the certification. It may very well be that an adjournment may be occasioned simply because you'll raise sufficient doubts either with the Commission or with Qantas that a few things need to be taken care of from that LJ(3) or LT argument. In any case, for short, the application for an adjournment is not granted. Yes Ms McKenzie.

PN66

MS McKENZIE: Thank you, Commissioner. Commissioner this is an application for the certification of an agreement which has been made under Division 2 Part VIB. The application which is signed by Ms Sue Bussell and headed Industrial Relations for Qantas was dated 3 November and filed on 4 November and the application attached a signed copy of the agreement, and the statutory declarations; one from Ms Bussell and one from the then president of AIPA, Mr Robin Holt, were also completed in accordance with the rules and filed in the Commission.

PN67

The agreement was made between Qantas and AIPA under s.170LJ on 4 August, and following that agreement being made between the parties there was then an agreed process whereby the required information explaining the agreement and the terms of the agreement were put together and provided to the employees covered. The employees who are covered by the agreement are Qantas long haul pilots, and clause 3 of the agreement describes the class of people. As the Commission is no doubt aware the workforce to whom this agreement applies is a mobile workforce, and therefore special arrangements had to be put in place in order to ensure that all employees covered by the agreement had access to the agreement and had an opportunity to understand the affect of the agreement.

PN68

So there was some period of time in which material was being put together. As is set out in the statutory declarations of both Ms Bussell and Captain Holt, on 10 October, a pack was put together and placed in all pilots' mail boxes in both Sydney and Melbourne. This is set out in clause 6.4 of the statutory declarations which specifies the steps that were taken, at least 14 days before the vote opened, to comply with the requirements of the Act. There was an explanatory note. There was a copy of the new EBA, the payment implement provisions which are headed the EBA section of it, and the full employment contract component.

PN69

In addition to that, to ensure that all pilots were aware of the material and the vote, there was a flight standing order issued. A flight standing order is a statutory instrument required under CASA regulations which once issued impose an obligation on all pilots to inform themselves as to its contents. So a standing order was issued which advised pilots that the documents which set out the content of the agreement and the explanation of the agreement had been placed in their effective mail boxes. They were in hard copy. There are a number of pilots who wished to receive that sort of material electronically, and accordingly a CD ROM was also produced, and a number of pilots were given the information electronically.

PN70

Further, pilots were also aware that they could access this information through the Internet, and all pilots during the relevant period, who have access to the Internet, would have been able to view the material that way. So it wasn't the case that some people had to wait till they returned to their base in order to receive the hard copies, the material was available electronically from 10 October to all pilots. Once that information process had been completed the ballot opened on 25 October and it was open from 25 October to 3 November, again to ensure that all pilots, having regard to their flying patterns and work obligations, had an opportunity to consider the material before they cast their vote.

PN71

The vote was conducted by an external organisation, Elections Australia. Elections Australia is an organisation that is very familiar with and experienced in conducting these sorts of ballots. They've done ballots within Qantas but also with many other employers as well. Elections Australia conducted the ballot over that period of time and, when the ballot closed, provided written advice to Qantas to advise that there had been a valid majority of valid votes cast approved. The agreement and the ballot was concluded and results published on 3 November. So following that the application was made, the documentation was provided.

PN72

The issues, in our submission, for the Commission to determine as part of considering the application, are firstly is the application a valid application, by reference to the particular requirements of the Act. And if it is a valid application which is before the Commission is there then any reason why the Commission must not certify it, and can the Commission be satisfied that all of the positive requirements that it must be satisfied of are met, and if it is then, in our submission, the Commission must certify it.

PN73

Turning to the first of those questions, is it a valid application, in our submission the Act sets out the requirements in order for an application to be valid; and it's clear from s.170LH that the requirements of Division 2 must be satisfied in order for applications to be made to the Commission to certify agreements. And s.170LI says that for an application to be made there must be an agreement in writing. We've obviously satisfied that requirement. About matters pertaining to the relationship between an employer who is a constitutional corporation and all persons who at any time, when the agreement is in operation, are employed in a single business, or part of a single business; and the statutory declaration goes to the latter point. It is a part of the business of Qantas Airways which is the subject matter of the agreement, and the contents of the agreement are, in our submission, all matters which are pertaining to the employment relationship.

PN74

Indeed, those matters which are not pertaining and therefore which cannot be included in the agreement and which would invalidate the agreement have been removed from - when I say removed. Insofar as they were in the current agreement, EBA6, that agreement was preserved as a valid agreement by virtue of the amendments to the Act. But of course any provisions which were not pertaining were void and as a result those matters do not appear in the new agreement, and in our submission, the Commission should be satisfied that the agreement does not contain any matters which are not pertaining. And s.170LI(2) makes it clear that the agreement must be in accordance with either LJ or K or LL, and this agreement is an LJ agreement between Qantas and an organisation of employees.

PN75

The Commission should be satisfied that the requirements of LJ(1) have been met. AIPA has at least one member employed in a single business, and is clearly entitled to represent the industrial interests of long haul pilots. LJ(2) requires the agreement to be approved by a valid majority of the persons. The results of the Elections Australia ballot, in our submission, should satisfy the Commission that the agreement has been approved. A valid majority is defined in s.170LE, and LE says that for the purposes of Part VIB a valid majority of persons employed at a particular time whose employment is or will be subject to an agreement - relevantly sub(b) - approve or genuinely approve the agreement if (c) the employer gives all of the persons so employed a reasonable opportunity to decide whether they want to make the agreement or give the approval.

PN76

And (d), and this is relevant to an approval, if the decision is made by a vote a majority of the persons who cast the ballot vote, decide, or genuinely decide that they want to give the approval. Now the content of the statutory declarations of Ms Bussell and Captain Holt set out in some detail the steps that were taken by both Qantas and AIPA to ensure that a reasonable opportunity was given to all pilots affected so that they could decide whether they want to give the approval. Those steps included providing access to all employees to a copy of the agreement, in hard copy, electronically, and through the Internet, to give them an explanatory note which explained the agreement.

PN77

I should say in that context, although the agreement is somewhat daunting in its length it is clear in the explanatory note that only a small component of the agreement has changed from the current agreement. And for ease the company, or the parties, have divided the agreement up into three sections. The first one sets out the requirements as to the scope and operation of the agreement. Section (2), and the Commission will no doubt be familiar with this agreement from another context, but it contains the conditions of employment. What's called the employment contract section.

PN78

And section (c) is the only part of the agreement which has really changed, and it is called the EBA7 section, the enterprise bargaining provisions, and it's clear from the explanatory memorandum that pilots are directed to this section (c), which is really only eight or nine pages, so that they can understand what are the key changes in this agreement from the current agreement. It sets out the pay increases that have been agreed. There are some provisions in relation to superannuation, and there are some particular provisions in relation to the introduction of the A380, and the implementation of a Singapore basing for 744 second officers. Then there are a few other efficiencies and work changes.

PN79

So the matters that are contained in section (c) really are the changes which pilots are voting on, in effect. But they were all given the full agreement and the explanatory memorandum directs them to that. So it's not the case that pilots were required to wade through the entire 500 pages or so of this agreement. It's a document that they are well familiar with, in the main part, and for ease of explanation to people the sections which represent the change and the outcome of the EBA negotiations are recorded separately. So in our submission the Commission should be satisfied that the requirements of the making of a valid majority as set out in LE were met.

PN80

So one then comes back to the remainder of LJ. LJ(2) in our submission, has clearly been met because a valid majority has approved the agreement. LJ(3) requires separately, and this does go to the question, in our submission, of the validity of the application. It requires that the employer take reasonable steps to ensure that at least 14 days before any approval is given, or persons have ready access to the agreement in writing. Again we rely on the statutory declarations of Ms Bussell and Captain Holt. The information was sent out on 15 October. The ballot did not open until the 25th - I'm sorry 10 October.

PN81

The information was sent out on 10 October, the ballot did not commence - open until 25 October. So there's clearly 14 days there before the ballot opened and the ballot period it itself went through till 3 November. So there was then a further 13 days for pilots to make their decision before they cast their vote. The statutory declarations set out the facts in relation to the provision of access to the agreement to all persons. And LJ(3)(b), before any approval is given, the terms of the agreement are explained to all persons.

PN82

If I can turn the Commission's attention to the explanatory note which was provided to all pilots. That's the 15 page document I think you asked Ms Starke about. That sets out the explanation as to the agreement. It summarises the provisions which have been negotiated. It explains, again, the framework of the agreement, and again it clearly identifies that section (c) contains the enterprise bargaining provisions. It explains how pilots should vote. It sets out the term of the agreement. It deals with the pay increases, and then the other particular matters. There are some issues to do with superannuation, which are clearly explained, and the Commission will find these matters - the body of the agreement - in section (c), and the Singapore base.

PN83

Then at page 6 of the explanation there is a part which is additional matters agreed between the parties as part of the negotiations which are not included in the agreement. There's some superannuation provisions. And then on page 8 administrative issue matters not pertaining to the employment relationship. Now the explanatory note, although it's not strictly required by the legislation to deal with these matters, does give some explanation as to the reasons behind the removal of matters which would otherwise invalidate the agreement. Those matters are matters which under legislation cannot be included in a certified agreement, and therefore what happens to those matters can only be a matter for discussion or negotiation between the parties absent, or external to the agreement.

PN84

There is an explanation as to the intention in relation an MOU there. But that's all there is. These are matters which cannot be included in an agreement. The requirements of the legislation, when the Commission comes consider an application for a certification, can only require the Commission to have regard to the explanation given as to the terms of the agreement. So any explanation given about matters which are not covered by the agreement are not relevant to the Commission's consideration, under s.170LJ(3). It's clear from LJ(3)(b) that the employer must take reasonable steps to ensure that the terms of the agreement are explained to all the persons. And in our submission we have clearly satisfied that requirement, and it is not relevant, and cannot be relevant to any consideration of whether that statutory test has been met, to have regard to the adequacy or otherwise of any explanation as to matters which are not covered by the agreement, and cannot be covered by the agreement.

PN85

So to that extent anything that's contained in the explanation which goes to - and they're clearly labelled administrative matters - which goes to matters external to the agreement cannot be relevant to the consideration of this, the extent to which the parties have met the test in LJ(3). So in our submission the Commission should be satisfied, firstly, that there is a valid application before it, because the requirements of s.170LJ(3), as informed by LE, have clearly been met. That being the case, the second question and the next step in the decision making process for the Commission, in our submission, is for the Commission to consider the matters contained in s.170LT, which go to the certification of the agreement.

PN86

LT(1) says that if an application is made to the Commission in accordance with Division 2 or 3, and we submit that we have met the requirements of Division 2, the Commission must certify the agreement if, and must not certify the agreement unless it is satisfied that the requirements of the section are met. So the Commission's decision making is a mandatory one. It must certify the agreement if it's satisfied that these matters have been met, and must not, if they're not met. So there is a very limited discretion in relation to the factors which the Commission must take into account in its decision.

PN87

In our submission we have clearly met all of the requirements of LT(2) but I will take the Commission through each of those, so that we can direct the Commission to the relevant material before it. Firstly, s.170LT requires the agreement to pass the no disadvantage test and the statutory declarations deal with the material in relation to that by asking the question as to whether or not the agreement reduces any benefit provided by an award. And the answer is no, both from Ms Bussell and from Captain Holt. And the Commission will be aware that the way the agreement operates is to provide benefits which are significantly more favourable than the underpinning award, which is the Qantas Technical Air Crew Long Award 2000.

PN88

Part 7 of the statutory declarations deal with the requirements in relation to the no disadvantage test, and 7.3, favourable terms or conditions prescribed being reduced; no. And the Commission should have regard to the statutory declarations in relation to that requirement of LT(2). LT(5) requires an LJ agreement to be genuinely approved by a valid majority of persons employed at the time. That test, in our submission, is no different to the test, or the definition, of a valid majority in s.170LE. LE makes it clear that you have a genuine approval, if the requirements are LE are met.

PN89

And for the reasons that we have put a moment ago we would rely on the material contained in the statutory declarations which go to the way in which the information was shared, the contents of the explanatory note, the holding of the secret ballot by Elections Australia and the result of that ballot, altogether, to satisfy the Commission that LT(5) has been met. LT(7) requires the explanation of the terms of the agreement to have taken place in ways that were appropriate, having regard to the person's particular circumstances and needs.

PN90

LT(7), although it perhaps focuses more on employees who may be from minority groups or disadvantaged groups, in our submission we have met that section, having regard to the particular circumstances of pilots, by ensuring that the agreement and explanation was available to them in hard copy, electronically, by the Internet, that the ballot period was open for a period of time to accommodate their different working arrangements. And in that regard, Commissioner, it is relevant to have regard to the actual outcome of the vote. The Elections Australia notice confirmed to the parties that there was a total of over 90 per cent of employees who are covered by this agreement who actually registered a vote.

PN91

That is a very significant percentage of relevant employees registering a vote. So there was a very high turnout and vote which, in turn, in our submission, supports the effectiveness of all the steps that were taken by way of meeting the requirements of the Act. LT(8) requires the agreement to include procedures for bringing and settling disputes. That's dealt within the statutory declarations, and the Commission should be satisfied with the answers given in clauses 7.7.1 of the statutory declarations. Clause 10 of the agreement - Part 1 in the agreement provides the DSP, and LT(9) is not applicable to an LJ agreement. LT(10), the nominal expiry date of the agreement, has been complied with.

PN92

So the Commission should be satisfied that those requirements have all been met, and therefore must certify the agreement. I'll deal just briefly with the provisions in s.170LU, because they do provide circumstances which would mandate the Commission to refuse to certify an agreement. So in our submission we can satisfy the Commission that none of the requirements of LU apply. There is no basis upon which the Commission could form a view that the agreement is in any way inconsistent with the Act or contains objection provisions, or that Qantas has in any way contravened the freedom of association provisions, or anything of that nature, as referred to in LU(3) and there's no suggestion, as far as we understand it, that any of those sections are in any way relevant.

PN93

LU(5). In our submission there are no provisions of the agreement which contain discriminatory provisions. LU(8) does not apply. This is clearly a part of a single business which is a distinct operation or an organisational unit within the single business. So none of the matters which LU deal with are applicable to this agreement. So in those circumstances, in our submission, the Commission must certify the agreement. As we've submitted earlier, there is a strong benefit to pilots which flow from this agreement being certified as soon as possible, because the agreement does require Qantas to make a process of back pay and Qantas is keen to do that as soon as possible, and no doubt the pilots are very keen to have the money and they've approved the agreement and they're in entitled to have the matter certified so that these things can be - the obligations in the agreement can be given effect to as soon as possible.

PN94

Obviously, in circumstances where AIPA has made reference to legal issues that it may wish to raise, we reserve our rights in relation to any response we put on that and we'd obviously like an opportunity to be heard in relation to those matters. But leaving that point aside, in our submission the Commission should be satisfied that the agreement can be certified and should be certified today. If it please the Commission.

PN95

THE COMMISSIONER: Thank you. Yes Ms Starke.

PN96

MS STARKE: Thank you Commissioner. In relation to the s.170LT of the Act it is clear that the Commission must not certify an agreement unless it is satisfied that the requirements of that section are met. Since AIPA is now in receipt of external advice that a question whether the provision of s.170LT(5) have in fact been met, we consider that the Commission must not certify the agreement until it has had an opportunity to consider the content of that advice. And we would seek, again - my instructions are to seek to tender that advice to the Commission.

PN97

THE COMMISSIONER: Yes.

PN98

MS STARKE: We would ask the Commission to consider that advice before it considers the certification under s.170LT.

PN99

THE COMMISSIONER: Yes. Ms McKenzie.

PN100

MS McKENZIE: The primary obligation on AIPA is to put the submission as to what LT(5) has not been met. I'm not sure that it's really sufficient to hand up a legal advice. I mean I don't object to it, but it would assist us to understand why LT(5) has not been met, and what this legal advice goes to. Because if the legal advice simply raises questions and says it's possible that it may, then in our submission that cannot be a substitute, if the submission has been put to the Commission, on the record as part of the hearing, and the Commission is under no obligation or duty in being satisfied about LT(5), to simply have regard to legal opinions that have been expressed.

PN101

The parties have an obligation to put submissions to the Commission. It's the Commission obviously that bears the statutory responsibility to be satisfied. But I'm a little bit troubled about the approach of simply handing up legal advice in circumstances where we don't know what instructions were given in relation to that legal advice, and what the submission is about why LT(5) has not been met. But as I say, I don't put it as an objection, and maybe all will be revealed when we have an opportunity to have a look at the legal advice. But I'm a little bit troubled about simply handing up a 27 page legal opinion.

PN102

THE COMMISSIONER: I note your point Ms McKenzie, but I will admit it and we will see whether it assists us at all.

EXHIBIT #AIPA1 LEGAL OPINION

PN103

THE COMMISSIONER: We'll adjourn for ten minutes.

<SHORT ADJOURNMENT [10.39AM]
<RESUMED [10.57AM]

PN104

THE COMMISSIONER: Yes, who wants to say something about the matter? Yes Ms McKenzie.

PN105

MS McKENZIE: I think Ms Starke has finished her submissions. By way of reply, Commissioner, in our submission there is nothing in the earlier advice from ..... which would lead the Commission to the view that it is not satisfied that the application before the Commission is valid, and that the agreement meets the requirements of s.170LT. The advice deals primarily with the memorandum of understanding, and that is for the reasons that we've already submitted. That is not a matter which is directly relevant to the application before the Commission for certification.

PN106

The only point which appears to in any way raise directly the requirements of the Act, in particular s.170LT, appears to be Section 13 and 14 of the advice, which refers to LT, and then says that it's arguable that the provisions of clause 2.5 - we take that to be a reference to the explanatory note, not the agreement. It's arguable that 2.5 is misleading.

PN107

THE COMMISSIONER: Where is 2.5?

PN108

MS McKENZIE: 2.5 appears on page 9 of the explanatory note. It's transfer of clauses, which make reference to association of business.

PN109

THE COMMISSIONER: Just wait a second. Yes.

PN110

MS McKENZIE: It appears to be a reference to that because there's nothing - there isn't a 2.5 in the body of the agreement so we take it to be a reference to that. It's arguable that that is misleading because no agreement has been reached on an MOU, and on tat basis it appears to be suggested that there may not have been the genuine approval by the pilots. The advice however does acknowledge, and sets out the - at paragraph 8 of the advice, refers to the opening words of the explanatory note which is headed Purpose of Explanatory Note, and makes it very clear that Par 1 of the Note refers to the matters which are in the new agreement.

PN111

Part 2 of the Note refers to matters which have, by agreement, have not been included in the new agreement. So it's clear in any event that 2.5 deals with matters which are not in the agreement and they've been included by way of information to pilots, but as we submitted earlier they cannot be relevant to a question of whether or not there has been an adequate explanation of the terms of the agreement and whether pilots have had a reasonable opportunity to consider the effect of the agreement. Because on any view of the information provided to pilots could be under no misunderstanding that those matters are not part, and cannot form, and do not form part of the agreement.

PN112

So it cannot be the case, in our submission, that any alleged misrepresentation or inaccuracy or deficiency in contents of the explanation, which deal with those administrative matters which are not to be covered by the agreement, could in any way be relevant to a consideration of LT(5) because LT(5) is directed to a question of whether there has been an approval of the agreement. And you won't see anywhere in the explanatory note or, importantly, in any of the information which AIPA provided to its members about the agreement. Any suggestion that AIPA's agreement was in any way a conditional agreement, or was subject to some condition precedent or subsequent about an MOU.

PN113

So the agreement, which never were voted on, was not a conditional agreement. It was an agreement which was made, and the approval was not in any way expressed or described or invited to be a conditional approval. So in circumstances where you have an agreement which was made, a valid majority approving that agreement and a dispute now, apparently, arising in relation to matters which could not be -including the agreement; it's hard to see how those issues can have any relevance to what the Commission must satisfy itself about. The remainder of the advice appears to then go into - or, we open questions of whether or not the matters which just came out were or were not pertaining.

PN114

Well they don't form part of the agreement so that's really not relevant. Then I think otherwise the advice deals with how the issue of the MOU can be dealt with. So in our submission the legal views expressed cannot be relevant to the question of certification for the agreement. The Commission has in the past considered from time circumstances where agreement is made, there's an approval and then different circumstances one party or other wishes to either resile from the agreement or defeat the certification of it. And without going in detail to it, perhaps can I just refer the Commission to two decisions. Both are Full Bench decisions. The Commission will no doubt be aware of them. One is the Australian Nursing Federation v. Alcheringa Hostel Incorporated.

PN115

It's a decision of the Full Bench 13 September 2004, PR951805. It's Senior Deputy President Acton, Senior Deputy President Lacy and Commissioner Hingley. In that situation there was an agreement which had been made under s.170LJ. Then, the employer purported to withdraw from the agreement. They told the employees before the vote that they were not supporting the agreement. The agreement was approved and then there was an application for certification and the Commission satisfied itself that (a) there could be a sort of unilateral withdrawing once an agreement was made, and under the scheme of the Act the Commission properly confined itself to whether there has been agreement made and whether it had been approved, and whether the requirements of LT had been met.

PN116

That decision referred to and came very soon after another decision, National Territory Education Industry Union v. Monash University, PR947598, 10 June 2004. That was Senior Deputy President Williams, Deputy President McCarthy, and Commissioner Tolley. I am not going to go into those because the circumstances were very different, but in both those cases there were a very active or live issue about whether or not one party wished to be bound by the agreement, and in those circumstances whether the Commission should certify it. That's not the case that we've got here.

PN117

There's no suggestion, whatsoever, that AIPA is in some way withdrawing from or resiling from the agreement which it's made. It simply points to the ongoing unresolved issues in relation to the memorandum of understanding that's been in some way relevant to the question of whether this agreement should be certified. And when one looks at the approach the Full Bench took in each of those cases - again, in our submission, it will be clear that the issues that are being raised now cannot be relevant to the issue of the certification. So I think they're the only comments we would make in relation to that advice, and in our submission the Commission must certify the agreement. Thank you Commissioner.

PN118

THE COMMISSIONER: Yes. Yes Ms Starke.

PN119

MS STARKE: Thank you Commissioner. Just in response I would like to refer to the very section that Ms McKenzie referred to, drawing from this advice received from ..... And that is that, the purpose of this explanatory note was indeed set out in that document and it says:

PN120

Part two of the explanatory note refers to matters that have been agreed between the parties as part of EBA7 negotiations but which, by agreement, have not been included in the new agreement.

PN121

We accept Ms McKenzie's submissions in relation to the application that is before the Commission today is not in relation to the memorandum of understanding. It is, obviously, in relation to this agreement - certified agreement. However, it is quite clear that the employees who were voting on this new agreement understood that indeed there were matters that had been agreed between the parties, as part of the negotiations. Significantly, I would say again, it was a misunderstanding that the vehicle that was to be used - ie, the memorandum of understanding - would continue to operate beyond the nominal expiry date. Just as it would have operated had it been in the certified agreement.

PN122

The matters that we understood to be the substance of that agreement between the parties must, of necessity include the operation of the agreement, for certainty. The precise vehicle that would ultimately agreement between the parties as to be the document that would contain these non pertaining provisions was a matter that is not disputed. We did ask for a deed initially. That was not agreed to. We ultimately settled on the fact that the vehicle would be a memorandum of understanding. It is, however, a matter of substance that the continued operation of those provisions - if the parties are in negotiations for a new agreement, and are trying to reach agreement for a new agreement - it would - it was clearly our understanding that the MOU would continue to operate in those circumstances.

PN123

It places AIPA at a significant disadvantage in relation to representing the rights of its members, if indeed that is not the case. I would further add, in conclusion, that it was clear between the parties that it was meant to be a de facto operation. That it was meant to be - nothing was to change in terms of how it would in effect, in practice, operate. That being the case we were certainly operating in an expectation that the parties would continue to conduct themselves in negotiating as they always have done. And once the nominal expiry date passes we just continue to do it and use our best endeavours to genuinely try and reach agreement.

PN124

THE COMMISSIONER: The MOU, though for obvious reasons, was not provided to employees. So that weakens the argument that somehow they thought that they were signing up for something. Then it wasn't actually provided to them. It's often the case that people don't get the agreement plus additional clauses, or exchanges of letters. They see that, it doesn't form part of the agreement but perhaps it informs them. In this case that is not the case. So the conclusions by the lawyer is not necessarily - at point 9 it's not necessarily the case that, it seems to me. The other thing is - LT5 talks about:

PN125

A valid majority of persons must have genuinely approved the agreement.

PN126

That ultimately means the agreement, not what a union official said or an employer promised. It's what's in the agreement, and if that's the case the Commission has - subject to all the other matters - really doesn't have any discretion does it?

PN127

MS STARKE: In relation to matters outside the agreement?

PN128

THE COMMISSIONER: As long is the Commission is satisfied that a valid majority genuinely approved the agreement then it doesn't really matter what they thought about something else. I mean these things don't normally arise and any promises that people might be given, normally, form part of - you know, an employer might say the agreement says that all overtime - there will be no overtime paid. But then there might be an exchange of letters, which is presented to everybody, which says - it's signed off - which says there'll be a wage increase of $150 a week. In this instance it will be unusual for that balancing consideration to somehow be - oh, and the parties will enter into an agreement about the payment of $150. I mean that normally doesn't happen. So in this instance you haven't tied that down, but that doesn't mean that the agreement is not there.

PN129

MS STARKE: Commissioner I take your point on that. I'm not in a position to comment on the advice that's been handed up. However there is a question that has been raised, and that is, well, did the employees vote on the agreement in reliance upon these matters having been concluded, and it was simply a matter that had not been reduced to writing. But the understanding was - the understanding we had during negotiations - was that it would be exactly the same operation, as a matter of practicality.

PN130

THE COMMISSIONER: I understand.

PN131

MS STARKE: That's the concern.

PN132

THE COMMISSIONER: The problem is, of course, you go further than that. You say - you say that we have to read into this - we have to read into the issue, an operative date, and I'm just not sure how you - I am not sure - you say, well it would be assumed that it would follow the same life of a certified agreement. We'd have to know the views of every employee on that. They might all have agreed, and I think we can assume they all agree that 17.1.5 that any change goes into an MOU. They all agree that 26.18.8 goes into an MOU. But as to how long that goes for - some might say, well, I expect it to go forever.

PN133

Why should it be limited to the life of the agreement. Others would say no I suppose that's right. Others. I mean it may very well be that very few of them would understand - - -

PN134

MS STARKE: There may be - - -

PN135

THE COMMISSIONER: You see, in the end, it might be assumed that they don't understand that way things just carry on, but they might look at the fact that the agreement expires on 31 December 2006. We might assume that they thought that the MOU things would go to 31 December 2006. But anyway it's all assumptions isn't it?

PN136

MS STARKE: Indeed it is assumptions. I mean we made an assumption that the relationship between the parties would be such that if - despite best endeavours on both sides in attempting to negotiate a new agreement that agreement hadn't yet been reached and the nominal expiry date had passed. That the arrangements between the parties would continue. Clearly that was an assumption that we made and we relied upon that. It is - we would also submit that it is in the interests of both parties for the MOU to continue past the expiry date where the parties are in discussions and genuinely try to reach agreement. It would, we would argue, not be in Qantas' best interests, for instance, that the administration of our organisation would be so heavily impacted that we would not be able to continue to engage in those discussions to attempt to finalise the agreement.

PN137

So that is why the assumption that we made, rightly or wrongly, was so strongly made by the negotiators at the time. We were not put on notice that the nominal expiry date was going to be the sunset date for any side agreement containing these business arrangement provisions. That is the concern that we have Commissioner, in that - depending upon your decision today in relation to this particular application - the opportunity for our organisation to resolve the issue with Qantas is significantly, adversely impacted. Which is precisely why we thought there'd be a postponement of the application, believing that we could reach a consensus position, a compromise position between the parties. That's the whole purpose for our application today.

PN138

THE COMMISSIONER: Yes. Thank you. This is an application to have certified an agreement that is to be known as the Qantas Airways Limited Flight Crew (Long Haul) Certified Agreement 2005 to 2006 (EBA7). The parties to the agreement are Qantas Airways Limited and the Australian and International Pilots Association.

PN139

The material before the Commission, including the agreement itself, and an explanatory note and the statutory declarations have been filed, and I've heard the submissions, and I've concluded that there is a valid application before the Commission. In that regard provisions in 170LH, LI, LJ and LE have been referred to and have satisfied me. In respect of s.170LT(1), which is the direction to the Commission to certify the agreement unless there are - some shortcomings in my mind have all been satisfied where they are irrelevant. In respect of s.170LU, which is a bar to the Commission certifying the agreement in certain circumstances, none of the matters there provide such an inhibition.

PN140

The Commission has noted that Exhibit AIPA1 does caution the Commission, or does raise concerns about whether the agreement can be certified. It goes to s.170LT(5), and also earlier sections. That is whether - although there has been a seemingly a valid majority, whether that majority has been misled or some misunderstanding such that - there was a question of whether they genuinely agreed or genuinely understood the agreement prior to voting with it, or at the same time as they voted. I note that that is put almost as - almost or as a submission by AIPA. In my view, notwithstanding that submission which attaches itself to Exhibit AIPA1, that to my mind does not indicate, or satisfy me, that the agreement was made in any other way but genuinely, and that there was informed consent.

PN141

The references to the MOU, and the provisions that went to the MOU, are not part of the agreement and are not therefore relevant to - directly relevant to the voting. But in any case what is in the MOU and pointed to - sorry. What is in the explanatory note and pointed to, as far as the MOU is concerned, is not a matter that is in any way in dispute. What seems to be in dispute is the life of any such MOU, which is not a matter that in my view is referred to in the explanatory note. So it's one of those matters that's left perhaps unsaid. But there's no question, in my view, anyone being misled, and I don't accept - whether the writer thinks it's unrealistic to conclude something is nice, but in my view it's not sufficient to force the Commission - sorry - to inhibit the Commission from doing what the Act seems to require it to do. Consequently the agreement will be certified.

PN142

It will come into force from 16 November 2005 and will remain in force until 31 December 2006. In saying that, the Commission is not dismissive of the concerns of the Association, as far as the MOU is concerned, and is always happy to assist the parties, should it be necessary. But I trust that won't be and you'll eventually get to the appropriate instrument. On that basis these proceedings are now adjourned. Thank you.

<ADJOURNED INDEFINITELY [11.21AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AIPA1 LEGAL OPINION PN102