BP2007/3627, Transcript of Proceedings [2007] AIRCTrans 567 (17 October 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17637-1

COMMISSIONER SIMMONDS

BP2007/3627

s.451(1) - Application for order for protected action ballot to be held
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
and
Chubb Fire Safety Limited
(BP2007/3627)

MELBOURNE

WEDNESDAY, 26 SEPTEMBER 2007

Continued from 25/9/2007

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA TELEPHONE CONFERENCE AND RECORDED IN MELBOURNE

PN53

MR G BORENSTEIN: I appear on behalf of the CEPU.

PN54

MR A GRAY: I seek leave to appear on behalf of the company.

PN55

THE COMMISSIONER: Any objection?

PN56

MR BORENSTEIN: No, Commissioner.

PN57

THE COMMISSIONER: Leave is granted. Yes, Mr Borenstein.

PN58

MR BORENSTEIN: Commissioner, I've just been advised about a minute ago that there are going to be some objections to the ballot order.

PN59

THE COMMISSIONER: I was advised more recently than that, as I walked in the door. What's the position, Mr Gray? I was told yesterday that the company didn't have any objection to the ballot order. It seems as though it's changed its mind in some fashion.

PN60

MR GRAY: Commissioner, I think this means that the company did not have a proper opportunity to consider the application.

PN61

THE COMMISSIONER: Yes, it did. It received the same opportunity as any company gets. I take exception to that proposition. The company was advised in accordance with the requirements of the Act.

PN62

MR GRAY: Commissioner, sorry, I wasn't being critical of anyone, in particular the notice that was given, it was more one of the difficulties that one of the company officers instructing, unfortunately, couldn't participate in the conferences yesterday, due to technical problems, as I understand it. That didn't help matters.

PN63

THE COMMISSIONER: The company was represented by an employer organisation.

PN64

MR GRAY: Be that as it may, Commissioner, the company does object to the orders and the application on essentially two grounds.

PN65

THE COMMISSIONER: Okay, well - - -

PN66

MR GRAY: It may be that - - -

PN67

THE COMMISSIONER: Hang on, just hold your fire, Mr Gray. Mr Borenstein, what's your position in regard to this matter?

PN68

MR BORENSTEIN: Our position is that we came here expecting that the - just making sure the employees have been given the relevant notice, but our position is that we are seeking the orders, obviously. I suppose we are caught off guard somewhat by the change of position by the company.

PN69

THE COMMISSIONER: There's been no prior advice to this change of position either. You come in totally ambushed, I take it.

PN70

MR BORENSTEIN: 30 seconds ago.

PN71

THE COMMISSIONER: Mr Gray, when did you receive instructions to oppose?

PN72

MR GRAY: Not much earlier, Commissioner, I must say. I only first received instructions from the company late yesterday afternoon.

PN73

THE COMMISSIONER: Why wasn't the union advised then?

PN74

MR GRAY: Sorry, that was when I first received instructions from the company. It was really only this morning that I've had a proper opportunity to get instructions from my client to discuss the issues with them and it's been determined that we wanted to raise this objection.

PN75

THE COMMISSIONER: Are you saying that until this morning the company hadn't made a decision to oppose the application?

PN76

MR GRAY: That's correct.

PN77

THE COMMISSIONER: Well, this is an interesting way to run a business. Okay, let's hear from you, Mr Gray.

PN78

MR GRAY: Essentially, Commissioner, the issues go to whether the union has been genuinely trying to reach agreement. I mean, our preference would be to have some time to put on some material supporting that proposition so we could be heard or I can just simply address you now on it.

PN79

THE COMMISSIONER: Yes, away you go.

PN80

MR GRAY: Commissioner, the issue really comes down to the position that the union is now seeking. I think you may have been told yesterday there are basically six outstanding issues in terms of the agreement . We say that one of those issues that the union is seeking be included in the agreement is prohibited content and therefore we'd say they haven't been genuinely trying to reach agreement. The Commission can't be satisfied of that as required by
section 461(1) of the Act.

PN81

The particular issue in question in the provision they're seeking is a requirement of the company to make a claim of a $5 training levy directly to the PROTECT fund. We say that's not a matter pertaining to the employment relationship. The union, as I understand it, is insisting that that be included in the agreement and the current negotiations. We say they're not genuinely trying to reach agreement.

PN82

The second matter that is pressed is one - - -

PN83

THE COMMISSIONER: You're going far too fast for me. What specifically is the claim, a $5 training levy to?

PN84

MR GRAY: PROTECT.

PN85

THE COMMISSIONER: How do we spell that?

PN86

MR GRAY: P-R-O-T-E-C-T.

PN87

THE COMMISSIONER: That's the name of something, is it?

PN88

MR GRAY: It's a redundancy fund which I understand the union administers but I can be corrected on that if I'm wrong.

PN89

THE COMMISSIONER: Yes, okay, I understand that.

PN90

MR GRAY: The second point, Commissioner, is one that there's - the union are, as part of negotiations, requiring the company to agree to a number of appendices. These appendices prescribe specific site rates and conditions for various sites, we say, across the vehicle industry, the petro-chemical industries. Essentially, we say that these appendices give rise to a concern of pattern bargaining. These are not terms and conditions which are specific to Chubb or Chubb employees.

PN91

THE COMMISSIONER: Hang on. What's the section in regard to pattern bargaining?

PN92

MR GRAY: Commissioner, it would be section 461C at least is the condition that the applicant not be engaged in pattern bargaining - - -

PN93

THE COMMISSIONER: Yes, what's the definition of pattern bargaining? Where do I find that?

PN94

MR BORENSTEIN: 421.

PN95

MR GRAY: Thank you.

PN96

THE COMMISSIONER: What's the evidence that they're a negotiating party, two or more proposed collective agreements?

PN97

MR GRAY: I'm just reading that now, Commissioner. That could be a problem for us. I think we can only put our case as highly as saying, at least, that the appendices amount to seeking common wages and conditions. I'm not in a position to put any further submissions on that point this morning. I think we really put that as a secondary point to the first one I've raised, on the evidence I can put today and the submissions I can put today, at least.

PN98

THE COMMISSIONER: Why do you say that the claim for the $5 training levy to the PROTECT redundancy fund is prohibited content?

PN99

MR GRAY: Commissioner, we say it's not a matter pertaining - - -

PN100

THE COMMISSIONER: No, take me to the section of the Act, please.

PN101

MR GRAY: We just need to look at the - we say not pertaining to the employment relationship. I don't have the section immediately to hand, Commissioner, apologies.

PN102

THE COMMISSIONER: How am I to determine the matter? I have to look it up myself, do I?

PN103

MR GRAY: No, the term is a well known phrase, Commissioner, in terms of the decision in Electrolux and what it says about matters not pertaining to the employment relationship.

PN104

THE COMMISSIONER: Can you help us, Mr Borenstein?

PN105

MR BORENSTEIN: I think it would be around - section 356 would be close.

PN106

MR GRAY: Apologies, Commissioner.

PN107

MR BORENSTEIN: It may well be the regulation .....

PN108

MR GRAY: Yes, I think the regulation gives it more content but 356 of the regulations might specify matters that are prohibited content for the purposes of the Act and then we need to look to chapter 2 of the regulations, regulation 8.7.3. Subdivision (c) of the regulation 8.7 defines matters that don't pertain to the employment relationship at that term explaining the Electrolux decision.

PN109

THE COMMISSIONER: Sorry, did you say (c)?

PN110

MR GRAY: It's Part VIII, chapter 2 of the regulations, Commissioner, sorry.

PN111

THE COMMISSIONER: I've got regulation 8.7. Is that the one?

PN112

MR GRAY: Yes, that's the one I'm referring to.

PN113

THE COMMISSIONER: Yes, I understand the argument.

PN114

MR GRAY: Thank you, Commissioner, I'm sorry that it took so long.

PN115

THE COMMISSIONER: Very good. So we've got a claim that requires the company to make a $5 training levy what, once per annum, once a year, once per employee, once a week per employee?

PN116

MR P BARBUTO: $5 per week per employee, Commissioner.

PN117

THE COMMISSIONER: Per employee covered by the agreement.

PN118

MR BARBUTO: Correct.

PN119

THE COMMISSIONER: That's the extent to which the opposition goes, is it?

PN120

MR GRAY: Commissioner, we say that's a condition that the union are pressing for. We say it's prohibited content and therefore they're not genuinely trying to reach agreement.

PN121

THE COMMISSIONER: I understand.

PN122

MR GRAY: Commissioner, if you're against us on that, then there are some points we would like to make in terms of seeking modifications to the order and the specific forms and types of industrial action that the union are proposing to ask members to vote on. I don't know if you'd like to hear me on that now.

PN123

THE COMMISSIONER: We might deal with this first point because clearly if I meet you on that the whole matter falls aside, so I'll hear Mr Borenstein.

PN124

MR BORENSTEIN: Commissioner, firstly, I might hand up a letter that was given to the company when we first initiated the bargaining period and started negotiations.

EXHIBIT #B1 LETTER FROM ETU DATED 06/12/2006

PN125

THE COMMISSIONER: Mr Gray, do you have it?

PN126

MR GRAY: No, I don't, Commissioner, unfortunately.

PN127

MR BORENSTEIN: It was attached with the bargaining period so I assume it would be in the possession of Mr Barbuto here in Melbourne, probably not there in Sydney, unless you have the same documents. In effect it states that we said in the bargaining period that the Workplace Relations Act has introduced a scheme, including prohibited content and we advised them that we do not seek any prohibited content and that's our intention. Unfortunately, because of - - -

PN128

THE COMMISSIONER: Perhaps it's best if you read the whole thing out.

PN129

MR BORENSTEIN: I'll read the whole thing out to you. I'll just find it. I don't think they'd have it. It says:

PN130

Please find enclosed by way of service a notice of initiation of bargaining period. As you might be aware the Workplace Relations Act introduced a new agreement making scheme which prevents prohibited content being included in workplace agreements. Accordingly, we hereby advise you we do not seek any prohibited content to be included in our workplace agreement reached with you. Unfortunately, as a result of the somewhat vague and unclear drafting of what is and what isn't prohibited content in the Act or through no fault of either party, a claim in the bargaining period or a claim that is innocently raised during negotiations may actually be prohibited content. Where this occurs we advise you that we do not seek such a claim and we reiterate that our clear intention is to have a workplace agreement that contains no prohibited content. As a safety mechanism, we also advise that the CEPU clearly supports submitting any workplace agreement reached to the OEA for assessment prior to any lodgement of the workplace agreement. Lastly, we ask you that you notify us immediately of any claims we have made or make in the negotiations that you believe are prohibited content.

PN131

To date we have not received any information on the negotiations with Chubb that we are claiming any prohibited content and in such a situation we say it's quite contrived for the company to come along now, after six months of negotiations and this being on the table for six months, and to sit on their hands for those
six months and come along now and try and run an argument that one of our claims is prohibited content. We say there's authority in the Tyco decision, but I don't have them here because I thought there would be no objections, but the Tyco decision by Ives DP which dealt with a similar situation where the company was advised to tell us if we were to seek any prohibited content and we advised them that we aren't seeking any prohibited content, then in that situation, even though there was a no AWAs clause in the draft proposed agreement, Ives DP held that the ballot order - there was genuine negotiations and the company's actions mean that the union was still genuinely trying to reach an agreement.

PN132

In any event, in this case there is no prohibited content anyway. An amount paid for the training of employees clearly relates to the employment relationship. It's a claim formulated by the employees. They have instructed us to seek it and in that situation there's no authorities that has my friend has referred to to say that this is prohibited content. I can say that this claim has been included in numerous other agreements that other unions have had and we've had. We've actually run this clause past the OEA and they have not stated that this is prohibited content so we would just say that there's no authority supporting the fact that this is prohibited content.

PN133

I suppose the closest decision to this was a decision regarding the AMWU's Manusafe sort of scheme where it was a trust fund run by the union to guarantee entitlements so the employee can make payments to that and the same sort of arguments as my friend was running here, although they're probably put in more detail, but were rejected by the - I think it actually got the courts and was rejected by the courts. They said that if you look at the subject-matter, in our situation it's training, in that situation it was guaranteed entitlements and clearly that pertains to the employment relationship.

PN134

The body which collects it is a company, it's a separate entity to the union. There are members of the union and the employer organisation ..... on the board and the people who run are not officials of the union or ..... so they're separate employees of the separate companies. There's no authorities to support any proposition and just because it's called a training levy doesn't mean that it's prohibited content and without any authorities to back my friend up, we'd say his argument must be refused, in our submission.

PN135

In respect of that issue of prohibited content, we say, even if it is or may be prohibited content we submit that the union can still be held to be genuinely trying to reach agreement because of the ..... the letter of 6 December '06, but we say there's just no argument to say it is prohibited content in any event.

PN136

The other point I wish to make is in respect of the pattern bargaining. First of all, my friend hasn't pointed to any other bargaining period which we're a party to where we're seeking the same terms and conditions that we're seeking with Chubb and I assume that's because there are no other bargaining periods where we're seeking the same terms and conditions as we're seeking with Chubb. The Chubb document has been negotiated between the parties for six months, numerous meetings, basically all the clauses have been modified to suit the needs of Chubb and the negotiations are to suit the needs of the parties and I don't think that can be disputed; many, many hours of editing the document on an overhead projector.
We say on that basis there is no argument again that there is any pattern bargaining. If my friend wished to put that submission, he would have to come with much more evidence and back-up than he has.

PN137

THE COMMISSIONER: With some evidence.

PN138

MR BORENSTEIN: With some evidence, that's right, and there is no evidence and that's the point. I'm sure my friends to the left of me here would agree with that.

PN139

In respect of the appendices that he relied upon, those terms and conditions apply to Chubb Fire and their existing agreement. The only difference is, under their existing agreement it has a jump-up clause that requires them to pay site agreements at the places they work. Under the previous Act that was legal to do that. Under the new Act you can't call up documents, you have to actually put them in there so what we've done is put them in there. For him to say we're pattern bargaining, well, the employees are just seeking the same terms and conditions that they currently have so it's a strange situation to say that we're seeking common terms and conditions when the employees are currently bound by such so we just say that that argument has no merit.

PN140

I won't go through the exceptions to pattern bargaining, because even you do find there was pattern bargaining, there are exceptions that say that if you agree to meet with the company and you consider their proposals seriously and the like, then it doesn't matter that you are - you do fit with the definition of pattern bargaining. We submit we satisfy all those exceptions in any event. We have spent many, many hours - I'm repeating myself, but we have spent many, many hours going over all the clauses in fine detail, amending them to the satisfaction of both parties and negotiating them so we have seriously considered all their proposals and met with them at all times possible and in such an occurrence we don't think the definition of pattern bargaining - - -

PN141

THE COMMISSIONER: As a matter of interest, the claim for the appendices that you're talking about, has that been agreed to? Is that one of the six outstanding items?

PN142

MR BORENSTEIN: One of the six outstanding items.

PN143

THE COMMISSIONER: It is one of the six outstanding items.

PN144

MR BORENSTEIN: That's right. I suppose that's the best I can do in reply to the submissions put. We just say that there's no basis and we seek our orders.

PN145

THE COMMISSIONER: Mr Gray.

PN146

MR GRAY: Commissioner, just on the authority points in respect of the prohibited content argument, there is one decision that I'm aware of at least, I've been able to find, I obviously can't hand it up, unfortunately, but it's a decision of Kaufman SDP in Visyboard Pty Ltd and Ors v AFMEPKIU.

PN147

THE COMMISSIONER: Can you give us the date and the print number, please.

PN148

MR GRAY: I can. It's print number 953703 and the date is 26 November 2004. That was a decision which, among other things, considered whether a clause requiring $1 per employee per week to be paid by the company into an AMWU printing division union education and training fund was a matter pertaining to the employment relationship and it was found it was not. I think actually it was ultimately conceded by the union that it was not.

PN149

THE COMMISSIONER: Do you challenge Mr Borenstein's submission from the bar table that the Office of Employment Advocate, by whatever name now called, has approved agreements containing this provision?

PN150

MR GRAY: I would have to take instructions on that, Commissioner.

PN151

THE COMMISSIONER: Could you get those instructions.

PN152

MR GRAY: I will try. Commissioner, I'm told, at least from the company's perspective, they are aware of similar clauses, in particular in agreements that they have in Queensland but we say there's a point of difference there because that is where the money is being directed directly to a training institution for the benefit of employees. I, unfortunately, can't point more broadly on what the OEA or
DEWR's attitude is to these provisions. I'm just not in a position to do that. It's the only instructions I have today.

PN153

THE COMMISSIONER: My point is that I'm bound to accept submissions from the bar table, unless they're challenged. You only have to challenge it, in which case I've got to put Mr Borenstein to the proof of it. That's the point of the question.

PN154

MR GRAY: I'm not aware of the OEA approving the particular term in question in this case, or these type of provisions more generally so if he's got proof of that, he can put it.

PN155

THE COMMISSIONER: He probably would have been able to put it if he'd been forewarned about this morning's proceedings and the attitude of the company to them. Mr Borenstein, what do you say about the general proposition that's been put that even if it be prohibited content that the contents of exhibit B, the fact that the company has been on notice about that for the last six months and has only now raised the issue of prohibited content, even though it's been on notice to do so since 6 December that that doesn't detract from the genuineness of their bargaining?

PN156

MR GRAY: Commissioner, on that we would say that the company has put an alternative formulation of the training levy payment that we say would avoid it being prohibited content, but unfortunately, the union are pressing for, as I understand it, the term required to be made in this $5 training levy paid directly to PROTECT. They're insisting that that position remain and not agreeing to the alternative formulations that I understand have been made by the company.

PN157

THE COMMISSIONER: I understand people might not agree with each other about a proposition. What my question is, is have you have at any time prior to this morning advised the union that you consider their claim to be prohibited content?

PN158

MR GRAY: Not to my knowledge, Commissioner.

PN159

THE COMMISSIONER: What they're arguing is that your failure to do so in the face of exhibit B means that that detracts from any argument that they're genuinely bargaining.

PN160

MR GRAY: All I can say in response to that, Commissioner, is that we maintain the condition they're requiring to be included in the agreement is prohibited content.

PN161

THE COMMISSIONER: When you say you maintain it, you haven't maintained it, you now argue that. The situation is that from 6 December 2006 until
26 September 2007 there has been no suggestion by the company that this claim constitutes prohibited content, even though there have been multiple meetings and negotiations.

PN162

MR GRAY: Commissioner, as I've said, we tried to put some alternative formulations forward, bearing in mind the concern that it was prohibited content. I don't think I can honestly tell you that we've gone and said to the union previously "We think this is prohibited content." No, I don't have those instructions and I can't put that submission.

PN163

THE COMMISSIONER: I'm satisfied that there has been genuine negotiations by both parties in this matter and I come to that conclusion because the claim by the company that the union is seeking prohibited content by virtue of a claim that is - and I don't think I have the claim before me, but I'm told that the claim is a requirement on the company to make a $5 per - - -

PN164

MR BARBUTO: Per employee per week.

PN165

THE COMMISSIONER: $5 per week payment for each employee as a levy to the PROTECT redundancy fund.

PN166

MR BORENSTEIN: It's by PROTECT but the money goes to EIT which is Electrical and Itronic Industry training body so that's a separate company.

PN167

THE COMMISSIONER: It's the payment of a training levy to a training provider.

PN168

MR BORENSTEIN: That's right.

PN169

THE COMMISSIONER: Which is a company separate from the union although the union has representation on it as does an employer organisation.

PN170

MR BORENSTEIN: Exactly.

PN171

THE COMMISSIONER: I'm not going to decide, I don't need to decide on the basis of what's before me whether or not that constitutes prohibited content, although without having the benefit of full argument on it, but it does seem to me to be at least arguable that it is not prohibited content, but more importantly I think is the conclusion I've come to that even if it be prohibited content it's only just now that the company has raised it, even though it's been on notice since 6 December 2006 that if it considers some claim to constitute prohibited content, it should advise the union. It, until today, has not done so so I am satisfied that there is a genuine attempt to reach agreement by the union and that at least on that regard there's no force in the company's submission that the application for a protected action ballot should be dismissed.

PN172

Mr Gray, you foreshadowed some argument about - I think it was about the questions to be put to the employees in a ballot but I'm not going to limit you to that if there are other matters in the proposed draft order that you wish to raise.

PN173

MR GRAY: Commissioner, I think it really is just limited to the issue I raised before and perhaps the timing of the process going forward. The concern the company has in respect of two of the questions being proposed, the union is proposing industrial action which will involve a ban on undertaking call-outs and call-backs and also a ban on paperwork. They are the third-last and second-last questions being asked in the documentation I've got here.

PN174

The company's submission is that that form of action will create a risk to health and safety, particularly the bans on undertaking call-outs and call-backs. This is because the work the employees are involved in is attending to emergency calls where fire alarms may fail, for instance, fire systems fail. We would be proposing that the appropriate action, if any, that should be taken or the question that should be put is that that action should be excluding any emergency situations because we would say that in circumstances where any action the union was taking may create a risk to health and safety, then ultimately the company would have rights to seek bargaining periods be terminated and the like. Therefore, those sort of questions should not really be put forward or that type of action being proposed.

PN175

The second one, the ban on paperwork is a problem for the company as well because it will potentially put them in breach of certain ACCC undertakings they've given regarding pricing. I think it's fair to say, in terms of the actual questions being proposed, we don't object to that question being put as much as we object to the first one on genuine safety grounds and we say the order should be amended to - and I haven't put this position to the union yet, they may be able to agree to it, I don't know - but that those bans should not occur when there's an emergency situation.

PN176

THE COMMISSIONER: Mr Borenstein.

PN177

MR BORENSTEIN: Of course we don't seek bans or putting people's lives in danger and the like and certainly, if there's any threat of that, the company has its rights. I need to get instructions on the actual risk, the threat of this happening.

PN178

THE COMMISSIONER: It might be useful if we go off the record to discuss this. We'll just go off record for a moment, please.

<SHORT ADJOURNMENT [9.47AM]
<RESUMED [9.55AM]

PN179

THE COMMISSIONER: As a result of the off record discussions I think I'm correct, Mr Gray, aren't I, in saying that you don't maintain your objection to the nature of the questions? That's not to say that you agree with them but - - -

PN180

MR GRAY: Our position is we don't have a basis to oppose the actual questions being put but the company reserves its rights in respect of any impact industrial action taken pursuant to those questions may have, in our submission.

PN181

THE COMMISSIONER: What I propose to do is, I have an order and it I believe meets the requirements of the Act. I'll just indicate to the parties present the nature of that order. I won't go through the detail of it but it requires a protected action ballot to be held. The Electoral Commission is to be the person authorised to conduct it. The employees to be balloted are the employees, including regular casuals employed by the employer on the date of this order, which will be today's date, who are members of the union and whose employment will be subject to the proposed collective agreement, excluding any employee who is bound by an AWA that has not passed its nominal expiry date by today.

PN182

The method of voting will be declaration voting as described in the Act and the employer is to provide a list to the authorised ballot agent by 4 o'clock today - sorry, tomorrow. I'll get that right in a minute, I'm a day ahead of myself. It actually says Thursday, the 27th. I think the company is aware of the nature of the list, we discussed that yesterday. The union has to similarly provide a list by the same time. The union is aware of what it has got to do, I'm sure.

PN183

The timetable for the ballot will be that the roll of voters will close at 5 o'clock on Friday. The ballot will open on Wednesday, the 3rd and voting is to close on Thursday, 11 October with votes being received by 10 o'clock on that day, 10 am that is.

PN184

The questions are those proposed by the union. There's a requirement on the employer to display or distribute any information sheet and attachments, if any, prepared by the ballot agent in accordance with any directions that the ballot agent might give and the ballot agent is to attempt to consult with the employer as to the most efficient and effective way for the employer to comply with any directions.

PN185

Both the union and the employer are to comply as quickly as reasonably practicable with any reasonable request made by the authorised ballot agent. The union and the employer to notify the ballot agent the names of scrutineers they propose to authorise at least two days before voting commences and either side or the authorised ballot agent may apply to have this order revoked or varied on short notice.

PN186

That's the rundown of what's involved in the order. That order will be made as soon as these proceedings are concluded and provided to the parties. Mr Gray, do you need a copy up there in Sydney or is it sufficient to be provided to Mr Barbuto?

PN187

MR GRAY: It's sufficient just to provide it to the company, Commissioner.

PN188

THE COMMISSIONER: I propose to adjourn the proceedings but I'd ask those here in Melbourne to remain and my associate will bring you a copy of the order in a short period of time. The proceedings are adjourned.

<ADJOURNED INDEFINITELY [9.59AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #B1 LETTER FROM ETU DATED 06/12/2006 PN124