Electrolux Home Products Pty Ltd v Australian Workers' Union & Ors A122/2002 [2003] HCATrans 729 (9 May 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide Nos A122 and A123 of 2002

Office of the Registry

Sydney No S246 of 2002

B e t w e e n -

ELECTROLUX HOME PRODUCTS PTY LIMITED

Applicant

and

THE AUSTRALIAN WORKERS' UNION

First Respondent

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION

Second Respondent

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

Third Respondent

JAMES WATSON

Fourth Respondent

DAVE OLIVER

Fifth Respondent

ROBERT JOHNSTON

Sixth Respondent

ROBERT GERAGHTY

Seventh Respondent

THE MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS

Intervener

Applications for special leave to appeal

GLEESON CJ

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 MAY 2003, AT 10.31 AM

Copyright in the High Court of Australia

__________________

MR F. PARRY, SC: If your Honours please, I appear with my learned friend, MR C.B. O'GRADY, for the applicant. (instructed by Cutler Hughes & Harris)

MR S.C. ROTHMAN, SC: If the Court pleases, I appear with my learned friend, MR S.J. HOWELLS, for all of the respondents. (instructed by Lieschke & Weatherill, Taylor & Scott and Moloney & Partners)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth of Australia: If the Court pleases, I appear with my learned friend, MR M.P. McDONALD, for the intervener. (instructed by Blake Dawson Waldron)

GLEESON CJ: Yes, Mr Parry.

MR PARRY: If your Honours please, the issue raised by this application is whether industrial action can be protected under the Workplace Relations Act when it is taken to advance claims that cannot form part of an agreement, it can be certified under the Act. The issue involves the construction of two sections of that Act, being section 170ML and section 170LI, both of which fall within Part VIB, being that part which deals with certified agreements and their negotiation.

GLEESON CJ: I am just having a little bit of difficulty identifying the bone here. What is it?

MR PARRY: I am sorry, the bone?

GLEESON CJ: What are you fighting over?

MR PARRY: The issue that is being fought over are the terms and conditions that are to apply at Electrolux at their operations in Adelaide. The claim being advanced, one of the substantial claims, is for the employer to enforce non-Union members to pay Union fees.

HAYNE J: Bargaining agent's fee.

MR PARRY: An agent's fee, yes. The issue has been the subject of legislative amendment and the amending Act has been placed in our authorities. The importance of the construction of section - - -

HAYNE J: What is the consequence of the amendment?

MR PARRY: Your Honour, the amendments came into force on 11 April 2003. There are two possible ways of challenging the making of bargaining fees. Firstly, there is, as occurred in this case, via declarations concerning whether the industrial action could be protected and whether it complied with section 170ML and section 170LI.

GLEESON CJ: The process of reasoning being the industrial action is not protected because this could not be the subject of a certified agreement.

MR PARRY: That is right. That is the first way of attacking, as it were, this claim. The second way is via contravention of Part XA of the Act. That is that part of the Act which deals with discrimination. His Honour at first instance, Justice Merkel, in substance dealt with the first argument, but with regard to the second argument that appears in application book page 25, he also dealt with the second argument. At application book page 25, which is page 22 of his judgment, he referred to his conclusion that the bargaining agent's fee did not pertain to the requisite relationship. He said that he did not consider it necessary to consider whether the claim contravened the freedom of association provisions in Part XA. He referred to those sections and went on and said - he formed the view that:

There are substantial difficulties about the involuntary and discriminatory aspects of such a claim. However, as those matters were not the subject of argument in the present case -

So there was a second way of challenging these claims. We say that the legislative amendments come and directly address the Part XA aspect.

GLEESON CJ: In what way?

MR PARRY: They address the Part XA arguments in a couple of ways. The first way is to say that bargaining fees are what is described as objectionable provisions. That is if objectionable provisions are included in a certified agreement, they are void and can be removed. Secondly, the pursuit of objectionable provisions is a contravention of Part XA clearly. We submit that it was well arguable before these amendments that the pursuit of a bargaining fee claim was discriminatory and a contravention of Part XA.

GLEESON CJ: But why does not the legislative amendment overcome your problem?

MR PARRY: Your Honour, it does not for these reasons. Whilst it does deal with the argument about whether a bargaining fee claim can be enforceable in a certified agreement, it does not impact on the first basis, the basis that this case was argued on, that is the construction of section 170ML, nor the construction of section 170LI.

GLEESON CJ: Why are they still important?

MR PARRY: They are still important for these reasons. If industrial action is, for example, taken in support of a bargaining fee claim, it still would retain the status as protected action under that part of the Act. That would mean that section 170MT would apply, which means that one could not take common law action in respect of such a bargaining fee claim. Secondly and importantly, section 170MT removes the force and effect of a section 127 order from protected action. A section 127 order is one made by the Commission in respect of industrial action.

Accordingly, if there was to be pursuit of a bargaining fee claim, you would not have common law remedies. You could not stop the action via the Industrial Relations Commission. One would need to go to the Federal Court and Division 6 of Part XA to obtain an injunction and then pursue that action with the remedies under Division 6 of Part XA.

GLEESON CJ: Do they include damages?

MR PARRY: They include compensation, yes, your Honour.

GLEESON CJ: What could you get under proceedings of the earlier kind that you cannot get under proceedings of this kind?

MR PARRY: What you could get before was the remedy of going to the Commission to obtain a section 127 order to prevent the industrial action occurring. That would give a remedy under Part VI of the Act, being a straightforward remedy to obtain that. We say that is an important aspect of the industrial system; access to the Commission to deal with matters such as this.

GLEESON CJ: That is what I think I need to understand a little better than I do at the moment. Does the practical problem that you now seek to address, having regard to the amendment to the legislation, come down to the question of whether in the future you would make these complaints before the Commission or the Federal Court?

MR PARRY: Your Honour, the problem that we still have as employers is a Full Court judgment which adopts a certain construction of section 170ML and section 170LI.

GLEESON CJ: I understand that, but what I need to know is why that construction, if it stands, matters any more.

MR PARRY: It matters because we submit that bargaining fees are not matters that pertain to the relationship of employer and employee. Therefore, on the logic of the Full Court ruling, matters that do not pertain to the industrial relationship can be pursued via industrial action, be they bargaining fees or other matters that do not pertain - for example, claims in respect of donations to political parties, claims - - -

GLEESON CJ: I see, so that is a matter that is not covered by the amendment?

MR PARRY: No, the amendments do not deal with those matters. They leave section 170ML unaffected. They leave Division 6 unaffected apart from insofar as they deal with whether an agreement can be certified or not. So the bargaining regime stays the same. These amendments come at it from a different angle, come at the issue of bargaining fees specifically.

GLEESON CJ: That is what I want to understand. You say that the legislative amendment deals with the specific issue that, according to your argument, took this outside the area of something that could be dealt with by a certified agreement, but the amendment does not deal with other potential issues that might come outside what you say would be the effect of a certified agreement. Is that what it amounts to?

MR PARRY: That is so, your Honour. The amendments deal specifically with bargaining fee claims. They do not deal - - -

GLEESON CJ: Can you give us some examples of those other issues or claims?

MR PARRY: For example, they can be claims by an employer against an employee or a union or unions against employers. They can be either side. For example, a claim that either an employer or employees make a donation to a political party, firstly. Secondly, that the company agrees certain terms in a commercial transaction - coal prices, for example.

GLEESON CJ: What sort of claim might an employer make about a prospective donation by a union to a political party?

MR PARRY: I suppose it could demand that employees - not a demand on a union, but it might demand that employees make either a donation to a political party or it make a donation to some other entity which is unrelated to the employment relationship. Our proposition is that there are a range of claims that could be made that simply would not pertain to the relationship. If those claims are made and pursued, then you would have a regime which moves well beyond the scope of the Workplace Relations Act. You would have a regime whereby those further claims could be pursued supported by industrial action and, on the logic of the Full Court's judgment, protected and remain protected. It is our submission that that construction of section 170ML(2) and of section 170LI would change the nature of industrial affairs and would lead to great uncertainty in the conducting of industrial relations.

Your Honours, accordingly, it is our submission with regard to the legislative changes that they leave the reasoning and logic in the Full Court decision as it stands. Accordingly, the amendments do not directly impact on what we submit are the special leave questions. Insofar as they do impact, they impact on that part which deals with bargaining fees. We submit that that at the best is an area of law which has fairly clearly been established by the High Court in the Alcan and Portus decisions, and that is a very small part of the ultimate argument. We submit that each of the questions that we have identified is important and arguable. The first - - -

GLEESON CJ: We will hear what the Solicitor has to say.

MR BENNETT: If the Court pleases, we support the application for special leave.

HAYNE J: Are the issues alive, Mr Solicitor? What do you say the live issue is after the 2003 Act?

MR BENNETT: The live issue for the purpose of this case is the consequences of the action which the Union took. As to the future, we would put it this way, that in order to succeed the applicant has to succeed in a major premise and a minor premise. The major premise is the construction of 170LI and 170ML. The minor premise is that bargaining fees are not something relating to the relationship of employer and employee. The minor issue has been cured.

It is true that it would still be necessary to succeed for the applicant, were leave to be granted, to succeed on the minor issue but that would probably take 10 minutes of the High Court's time. There are two High Court authorities directly in its favour on that issue. The Full Court did not refer to them. What it referred to was a general passage in a dissenting judgment of Justice Murphy in another case and that was all it referred to on that issue.

There are two cases, the Alcan Case and the Portus Case, which have precisely defined that in those cases union dues to be deducted by the employer were not something which pertained to the relationship. What the Full Court did at page 74 of the application book was to deal with that issue, which I have called the minor premise, in one paragraph, paragraph 102. It did not refer to Alcan or Portus and merely referred to the dissenting judgment of Justice Murphy in R v Gaudron, which is a very general statement about the role of unions and their importance in the bargaining process.

So, in my respectful submission, although this is the unusual case where the Court might have to decide something which is no longer a special leave question in order for the applicant to succeed on the special leave question, that is something which is so clear and so short, it is not going to detain the Court. The issue is important to the applicant, no doubt, because of the consequences of the Union's actions in this case which would remain alive, but the issue under sections 170LI and 170ML is a very important issue.

The real importance of it, your Honours, is that there have been eight decisions of the Commission which have declined to follow the Full Court of the Federal Court in this case, two of them in the Full Commission. I have a list of those which I will hand up.

GLEESON CJ: Thank you.

MR BENNETT: Your Honours will see I may have overstated it slightly because 4, 5, 6 and 7 were single members and the appeals were heard together in item 2. These are all cases - and I can take your Honours to them if necessary - where the Full Court reasoning was simply not accepted on the construction of 170LI. What was said was that you cannot include in a certified agreement something which does not pertain to the relationship.

HAYNE J: Some but not all of these related to bargaining agents' fees?

MR BENNETT: That is so, your Honour. We have explained that in footnote 2.

HAYNE J: Can you explain to me shortly the content of items (c) and (d). What are the terms sought? Why are they outside?

MR BENNETT: Payroll deduction clauses concern deductions from payrolls for other purposes, normally for union membership fees. Union notification clauses are clauses requiring notification to a union of the details of new employees to enable the Union to approach them. So they illustrate how other matters are affected in this way. At the moment we have a direct conflict between the decision of the Full Federal Court and a universal approach being taken by the Commission. As I understand it, on my instructions, there are no decisions the other way.

GLEESON CJ: It is probably overstating it a little, is it not, to say that the Full Court of the Federal Court actually made a decision about 170LI(1) that is contrary to these? As I understand it, paragraph 102 was simply saying it might be the case and, because of the way they construed the other section, the fact that it was all a bona fide claim was all that was required.

MR BENNETT: That is the other part of the major premise, your Honour, which is the special leave question. Of course, to an extent they are related because, if you can include in a certified agreement provisions that do not relate to the relationship, the question of whether the exemption in relation to industrial action in support of the agreement applies is obviously a very different question.

GLEESON CJ: I understand that. I may have misunderstood the reasoning of the Full Court but I did not think they actually held that you could include in a certified agreement these Union fees. They thought it was enough to say that you might.

MR BENNETT: Your Honour, they make it reasonable clear in paragraph 98. They say:

However, we doubt that either proposition is correct.

Then they deal with the LI proposition and the bargaining fee proposition. The matter they deal with over the - - -

HAYNE J: The relevant proposition is the first sentence of 99, is it not? Is that not the key proposition which the parties seek to controvert?

MR BENNETT: Yes, that is the matter of the greatest importance and that is the matter which the Industrial Commission has simply not followed the Full Court on. If a court says, "A party can succeed for one of three reasons and we're in that party's favour on all three reasons", in the normal course all three are ratio. Of course, the court may express it in a way that makes one of them less than ratio or it may express it in a way that is an intermediate way. Here it has been done in an intermediate way. They say:

it is not necessary for us to express a final view about Electrolux's other propositions . . . we doubt that either proposition is correct.

They then deal with them fairly firmly.

The first proposition, the one they have dealt with, the question of whether the test under ML is subjective or objective, is of great importance and does, as I have said, impact on the construction of LI because the two to some extent go together. It is much easier to say one can have an entitlement to have industrial action over such a clause if one may have it in an agreement, notwithstanding that it does not pertain to the relationship. So for those reasons, your Honours, what we submit is there is an issue of importance.

There is a minor premise which has been superseded. That minor premise of course is in the same category as the LI issue in that it is dealt with in passing by the Full Court at page 74 in paragraph 102 but, as I have said, that will not take long to deal with because it simply ignores two unanimous decisions of this Court, one of them fairly recently. In my respectful submission, it simply cannot be right and, as I say, in relation to bargaining fees has not been followed.

So for those reasons we submit this is an important case. It is one which is where leave needs to be granted in order to resolve the difference between the Commission and the Court and of course it is of importance to the applicant. If the Court pleases.

GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Rothman.

MR ROTHMAN: If the Court pleases, might I start with reminding the Court, if I could be so bold, that the Court described the Workplace Relations Act as it came into force in 1996 as embodying fundamental alterations in the system of industrial dispute resolution. It did so in Pacific Coal. Those fundamental alterations occurred in some part in 1993 and then given full force in 1996. This Court has noted that the Act must be seen now in a context - I use my words rather than this Court's - of a move from industrial regulation to collective bargaining and industrial action within some but not many limits and the relegation - and I do not say that in any pejorative sense - of the Australian Industrial Relations Commission to minimum standards and with some exceptions.

That is achieved by giving force to agreements reached between an employer, being a single business, and either an organisation of employees on the one hand, or employees directly, sometimes both. The industrial action is given protection and industrial action is also prohibited during the life of an agreement or when it is not protected. That is the context in which the Court ought look at the provisions of section 170ML and 170NC.

HAYNE J: Was this in aid of a proposition that we should decide that the Full Court was plainly right?

MR ROTHMAN: Yes, your Honour. The application that was made before the Federal Court was an application under 170NC. That is part of a civil penalty scheme which prohibits a person from taking industrial action or refrain from taking any action:

with intent to coerce another person to agree, or not to agree, to:

(c) making, varying or terminating . . . an agreement -

That of course then depends upon the exception or exemption in section 170NC(2), which is that it does not apply to protected action. That is how the court came to deal with whether this was protected action. So that there was a civil penalty application made and the question arose whether the exemption in 170NC(2) applied. That then takes the Court back to 170ML, which is set out in the various judgments and I assume the Court has read. Nevertheless, 170ML talks of "protected action", which is action of varying kinds, taken by relevant parties in this case:

for the purpose of:

(e) supporting or advancing claims made in respect of the proposed agreement -

What is argued and what was argued before his Honour Justice Merkel was that the use of the term "proposed agreement" necessitated a reference back to the other provisions as to what an agreement could be about or ought be about.

What was held by the Full Court was that one looked primarily at the terms of section 170ML, it being the exemption provision in 170NC, and one looked at the purpose of the industrial action and decided the case on that basis. Their Honours in that process - and it may be appropriate to take the Court to it. At application book page 72 at the foot of the page, their Honours at paragraph 96 of the judgment make this statement:

Electrolux does not suggest the industrial action organised by the Unions in September 2001 was organised otherwise than for the support or advancement of the claims they were making against the company, including the bargaining fee claim. And Electrolux accepts that all the claims were genuinely made, in the sense that the Unions genuinely wished the substance of these claims to be included, in some form or other, in one or more certified agreements with the company. That being so, it seems to us the purpose of the industrial action clearly fell within the terms of para (e) of s 170ML(2) - - -

GLEESON CJ: Does that mean that if the Union had a subjective and bona fide belief that the matter might be the subject of a certified agreement, the action was protected even if objectively that belief was wrong?

MR ROTHMAN: Yes, your Honour. It means that if the Union subjectively - and, I would posit, reasonably and bona fide - takes the view that the claims it is making could be part of an agreement.

GLEESON CJ: If the view has to be reasonable, why does it not have to be right?

MR ROTHMAN: Because that would render the whole scheme of protected industrial action effectively nugatory. What it would mean would be that the, with respect, arcane distinctions that this Court in some senses had turned its face against as to what was or was not pertaining to the relations of employers and employees would have to be determined before it was clear that industrial action could be taken with the protection reposed in the action by the Act.

In those circumstances it would mean that the timeframe envisaged by the Act itself is a timeframe which could never be utilised. You would never be able to determine with certainty - and that is effectively, as I understand it, what your Honour the Chief Justice has put - what was or was not pertaining to the relations of employers and employees. It must be remembered that the Australian Industrial Relations Commission always has the power to terminate the industrial action by terminating the bargaining period under the provisions of section 170MW.

So if it was a situation where under the current regime only a claim for bargaining agents' fees would be made, without suggesting that that could be reasonably held nowadays, the position in terms of a party faced with such a claim, they could go to the Commission and say, "This is not genuinely seeking to reach agreement", have the bargaining period ended under section 170MW and the Commission would be able to ensure that the action was no longer protected.

In our respectful submission, sections 170ML and 170NC look to the purpose or intent of the industrial action, not what may or may not be in the certified agreement. Whether one looks at the provisions in the Act from a purposive or a literal approach, there is no reason, in our respectful submission, to read down section 170ML and its reference to "purpose" and to impose upon it those sorts of distinctions which would render nugatory the protection granted by the Act. The issue of the status of bargaining agents' fees is obiter in any event in the Full Court judgment. They took the view that 170ML did not require one to go back to look at the bargaining agents' fees. That seems, on the face of the application for leave to appeal, to be the issue of greatest importance in the resolution of these matters.

Can I deal very briefly if I might with the matters that have been raised now. There are no issues - when your Honour asked about the bone - between the parties as to the terms and conditions of employment at Electrolux. Agreement had in fact been reached which did not include bargaining agents' fees before the Full Court had even decided the issues in question.

HAYNE J: But is there still a live issue under whichever of the 170N provisions it is that provides for civil penalty?

MR ROTHMAN: No, your Honour, no civil penalty was sought. All that was sought was a declaration that a breach had occurred - that was made by his Honour Justice Merkel - and certain declarations in relation to findings made prior thereto.

GLEESON CJ: Where do we find the orders made by Justice Merkel?

MR ROTHMAN: There is three sets of course, but one of them is at AB 30. Your Honours will see there is a reference to certain dates. There is a declaration that:

1. the industrial action . . .

(a) was not protected action . . .

(b) breached s170NC(1) of that Act.

There is then the same finding in relation to other industrial action.

GLEESON CJ: What is the consequence of a finding of breach of 170NC(1)?

MR ROTHMAN: Without a penalty. That finding is on the record. It is not a criminal penalty; it is a civil penalty. It is a finding made against the Union that it has breached the Act which, I should add, the Union does not take lightly. Nevertheless, it is not a criminal sanction.

HAYNE J: Does the making of such a declaration in one set of proceedings permit or contemplate the later taking of proceedings under Division 10 for some form of remedy for that contravention?

MR ROTHMAN: Without giving the applicant advice, it would seem on the face of it that the provisions - such a declaration is ordinarily made in proceedings for a penalty under the relevant provisions under 170NF.

HAYNE J: Were these proceedings with which we are concerned 170NF proceedings?

MR ROTHMAN: Originally they were such proceedings, but the prosecutor did not seek the imposition of a penalty. All that was sought was the declarations.

HAYNE J: Bare declaration?

MR ROTHMAN: Yes, your Honour. There is one aspect to it of which, as a matter of completeness, I ought inform the Court. That is that there may be on one view, and subject to the provisions of section 166A, a right, given that the action was not protected for damages to flow in the industrial torts. That has not been seen to be contemplated and there may be issues about estoppel and all sorts of things associated with whether it should have been taken at the same time.

GLEESON CJ: There could be both legal and practical issues.

MR ROTHMAN: Yes, your Honour. The issue in terms of section 298K and the provisions of what I will call the victimisation provisions, that, as my learned friend has pointed out, was not argued below, that is at first instance. There was no notice of contention in relation to it and it was not a matter on which the appellant here sought to rely. Can I deal with the effect of the amendment made by the legislature in this way. It does, in our respectful submission, resolve the issue, at least in relation to bargaining agents' fees, as to any general application. There is no general application any longer in relation to that matter.

HAYNE J: Do you say it renders the present litigation between the present parties moot?

MR ROTHMAN: Yes, your Honour.

HAYNE J: How?

MR ROTHMAN: It renders it moot in the sense that if it were to occur today - - -

HAYNE J: That I understand.

MR ROTHMAN: Your Honour, I do not put it any higher than that. The present litigation between the parties is in any sense moot in the sense that the industrial action has ceased. There is an agreement between the parties which does not include this term in any event and in that sense there is no practical effect of the litigation. The Full Court still requires a bona fide claim for an agreement and industrial action around that claim.

The reference by my learned friend Mr Parry to section 127 is, in our respectful submission, misplaced. Section 127 orders may still be made. They may not have the effect if the action is protected but that is a matter to be determined by the court. There are remedies available under Part X which would allow the court to make, and usually does make, interlocutory orders which would stop people taking action which is contrary to the Act and contrary to the victimisation provisions, ex parte in most instances.

The third aspect of the amendment is the effect it has on the legislative intention. It is clear that one at least of the matters with which the legislature was dealing in this amendment was the issue that arose in this case. That is the issue associated with whether or not bargaining agents' fees can be subject to a certified agreement. When I say "this case", in the issue that seeks to be agitated by the applicant. It is also clear that the legislature did not seek and does not seek to alter the effect of section 170ML as found by the Federal Court.

So that what my learned friend the learned Solicitor says is that there are eight decisions of the Australian Industrial Relations Commission which are contrary to the Full Court judgment. In our respectful submission, that is not so. In our respectful submission, the Full Court is at pains to say on their view of 170ML, they do not need to deal with and do not finally deal with the issue that the Industrial Relations Commission deals with. What the legislative intention that is, in our respectful submission, obvious from the Act and even more obvious with this amendment, is that the legislature wishes to have certainty in relation to the protection that is granted and allow parties to claim any bona fide claim even if ultimately that cannot be the subject of a certified agreement.

That was a matter referred to by this Court in Australian Industrial Relations Commission v CFMEU in the Kestrel Coal Case, to which reference is given in the summary of argument. The Full Court did not deal with the bargaining agents' fee in one paragraph. It dealt with it by reference to the Full Bench decision which, notwithstanding the submission of the learned Solicitor, is in conformity with the Full Court decision - and indeed they follow it in that sense - and that is dealt with in paragraphs 69 to 74 of the Full Court judgment.

For those reasons, we say it is not a matter of general importance. We say that the Full Court judgment is manifestly correct and it is not a matter which warrants special leave. If it please the Court.

GLEESON CJ: Mr Parry, we are minded to grant special leave in this matter but we are distinctly unenthusiastic about the prolixity of the draft notice of appeal. Could somebody have a good hard look at that?

MR PARRY: Yes, your Honour.

GLEESON CJ: If it takes you that many grounds to get your argument off the runway, it is not likely to become airborne.

MR PARRY: Yes, your Honour.

HAYNE J: You might also give attention to the orders. Starting by saying that you want the orders below set aside is a good start; it is not an end.

MR PARRY: As your Honour pleases.

GLEESON CJ: In this matter there will be a grant of special leave to appeal. We will allow a day for the case and we will expect the parties, including the intervener, to agree upon division of time between themselves.

AT 11.14 AM THE MATTERS WERE CONCLUDED