AMWU v Skilled Offshore Pty Ltd

[2015] FWC 6727

[2015] FWC 6727 [Note: An appeal pursuant to s.604 (C2015/6917) was lodged against this decision - refer to Full Bench decision dated 2 November 2015 [[2015] FWCFB 7399] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Australian Workers' Union, The (CEPU) and Anor
v
Skilled Offshore Pty Ltd
(B2015/1253)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 5 OCTOBER 2015

Proposed protected action ballot of employees of Skilled Offshore Pty Ltd.

Introduction

[1] Skilled Offshore Pty Ltd (Skilled Offshore) supplies labour in the form of crew to vessels operating in the offshore oil and gas industry. For present purposes, Skilled Offshore is engaged pursuant to a contract for the provision of marine and construction crew to Saipem Australia Pty Ltd for the operation of the Castorone, a pipe laying vessel (Castorone project). 1 An enterprise agreement titled Skilled Offshore Western Australia and Northern Territory Offshore Construction Projects Agreement 2011 – 2015 (Current Agreement) applies to Skilled Offshore and its employees performing work on the Castorone project. The nominal expiry date of the Current Agreement is 19 August 2015.

[2] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as The Australian Manufacturing Workers’ Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Australian Workers’ Union (AWU) (Collectively ‘the Unions’) have, by application lodged on 2 September 2015, applied jointly to the Fair Work Commission (Commission) under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order (PABO).

[3] Skilled Offshore opposes the making of a PABO. It says the proposed agreement in relation to which the application relates was not identified by the Unions before the application was made. It says the Unions have not, and are not, genuinely trying to reach agreement with it. It also says that the questions relating to industrial action that are to be posed are imprecise and vague, and that some of the action for which authorisation is sought (or for which authorisation would be given) is not industrial action. Skilled Offshore raises concerns about the proposed balloting process, the period within which the proposed ballot is to take place and it says that there are exceptional circumstances warranting the period of written notice referred to in s.414(2) to be extended to seven working days.

[4] I have decided to make a PABO because I am satisfied that in relation to a proposed enterprise agreement, an application has been made under s.437, and that each Union has been and is genuinely trying to reach an agreement with Skilled Offshore, the employer of the employees who are to be balloted. The PABO that I make is a modified version of the draft order submitted by the Unions on 25 September 2015. I am also persuaded to exercise my discretion to order that the period of notice for protected industrial action referred to in s.414(2)(a) be longer than three working days, because I am satisfied that there are exceptional circumstances justifying such an extension. The period of notice will be seven working days. These are my reasons for making the PABO.

Background

[5] Clause 5 of the Current Agreement provides:

‘The Company agrees that at least three months prior to the conclusion of the Agreement that the parties shall collectively bargain in good faith for an extension of the agreement for a further four years.’

[6] It seems common ground that the Current Agreement was made on terms that were consistent with that which is described as an industry framework agreement. 2 It also seems common ground that bargaining did not commence as contemplated by Clause 5 of the Current Agreement.

[7] Between approximately 17 June 2015 and 11 September 2015, representatives of Skilled Offshore and representatives of the Unions exchanged correspondence, attended various meetings and attended conferences in the Commission. So much is not in dispute, however the significance, purpose and effect of that which occurred between 17 June 2015 and 11 September 2015 is contested.

[8] Without setting out the substance of each event that occurred between 17 June 2015 and 11 September 2015, it is sufficient for present purposes to note that Skilled Offshore maintains that until 7 September 2015, the various discussions and exchanged correspondence was concerned with that which Skilled Offshore regarded as important namely, whether discussions would occur to secure an industry framework agreement or an agreement that would cover Skilled Offshore and its employees. It was on 7 September 2015, during proceedings in the Commission, commenced under s.739 of the Act that, according to Skilled Offshore, the Unions first indicated that they would not pursue an industry framework agreement. On 8 September 2015, Mr Glenn McLaren, a lead organiser with the AMWU wrote by email to Mr Mark Wakelin, the General Manager – Industrial Relations and Employee Relations at Skilled Offshore on behalf of the Unions in the following terms:

‘. . . I confirm that the Unions do not wish to enter negotiations for an industry-wide framework agreement.

For the avoidance of doubt: on our members’ behalf, we are pursuing an agreement to replace the Skilled Offshore WA and NT Offshore Construction Projects Agreement 2011. We continue to rely on the amalgamated log of claims that was served on you on 5 August 2015.’ (Underlining and bolding in the original) 3

[9] Skilled Offshore says that before 7 September 2015, the proposed enterprise agreement had not been identified by the Unions with the consequence that the application for a PABO was not in relation to a proposed enterprise agreement on the date on which the application was made, and so the application was not one made under s.437 of the Act.

[10] On 9 September 2015, Mr Wakelin responded by acknowledging the earlier email and indicating that ‘as per our previous discussions’, Skilled Offshore ‘will now proceed with issuing the Notices of Employee Representational Rights as soon as possible’. 4

A notice of employee representational rights (NERR) was issued by Skilled Offshore to relevant employees on 14 September 2015. 5

Relevant statutory framework and meaning of proposed enterprise agreement

[11] InMermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia 6, a Full Bench of the Commission considered the relevant statutory framework and the meaning of the phrase ‘proposed enterprise agreement’ in the context of a PABO and I adopt that which was there outlined without repeating it.7

[12] Section 437 enables a bargaining representative to apply for a PABO. Section 437(1) provides:

‘A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.’

[13] Excepting the prohibition of making an application in s.438(1), the Commission must make a PABO in relation to employees who will be covered by a proposed agreement in the circumstances set out in s.443. Section 443 relevantly provides:

‘443 When FWC must make a protected action ballot order

(1) FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and
(b) FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).’

[14] It is to be observed that the Act variously makes reference to a ‘proposed agreement’, or the ‘proposed enterprise agreement’ and ‘proposed single-enterprise agreement’ to describe in a particular context the same concept, that is, the agreement that is being proposed by a party wishing to bargain or by one that is actually bargaining. That this is so seems to be confirmed by the Explanatory Memorandum to the Fair Work Bill 2008 and its description of the use of the phrase ‘proposed enterprise agreement’ in Parts 2-4 and 3-3 as ‘a generic term’ 8, and its reference to the decision in Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Union (No 2)9in which French J referred to the use of the words ‘proposed agreement’ in s.170MI of the Workplace Relations Act 1996 as a ‘generic term [that] allows for a variety of possibilities’10. The content of a proposed agreement need not be settled nor need the scope of a proposed agreement be agreed between the bargaining parties for that which is proposed by one party to bear the character of a proposed agreement or proposed enterprise agreement for the purposes of the Act.

[15] In MSS Security Pty Ltd v Liquor, Hospitality and Miscellaneous Union  11, a Full Bench of Fair Work Australia observed that:

‘The Fair Work Act 2009 (FW Act) uses the expression “proposed enterprise agreement”, “proposed single-enterprise agreement” and “proposed agreement” in a number of places. An agreement may be “proposed” by an employer or it may be “proposed” by a bargaining representative of employees or there may be different and competing agreements “proposed” by both. Where a person makes an application under the FW Act in their capacity as a bargaining representative for a “proposed enterprise agreement” or “proposed single enterprise agreement”, the bargaining representative is entitled to rely on the agreement it has proposed or it may choose to make the application in relation to an agreement proposed by another bargaining representative. In this case, it was the LHMU that first “proposed” an agreement and it was the agreement proposed by the LHMU that was the “proposed single” for purposes of the LHMU’s application for a protected action ballot order under s.437.’ 12

Consideration

[16] Turning then to the arguments advanced by Skilled Offshore in opposition to the PABO.

Proposed enterprise agreement not identified when application was made

[17] As is apparent from the above, a proposed enterprise agreement therefore means no more than the agreement the bargaining representative applying for an order under s.437 is proposing at the time the application for a PABO is made. It is that agreement to which the ballot will relate and it is employees represented by the bargaining representative who fall within the scope of that agreement (or a group of such employees) who will vote on questions of particular industrial action.

[18] Skilled Offshore submits that as at the date on which the PABO application was made (2 September 2015) the Unions had not identified the proposed enterprise agreement. I do not accept that the proposed enterprise agreement was not identified at the time when the Unions made the application for a PABO.

[19] On 19 June 2015, Mr McLaren sent an email to Mr Wakelin in the following terms:

‘For the avoidance of doubt and so the position of the AMWU members is absolutely clear we advise you of the following;

. . .

The AMWU wishes to commence negotiations for the replacement of the current enterprise agreement with SKO ASAP and also reminds you of your obligations contained in clause 5 of the agreement.
We request that SK oh issue notice of representational rights to your employees as a matter of urgency.

. . .’ 13

[20] It seems clear enough that the only instrument capable of replacing ‘the current enterprise agreement’ with Skilled Offshore is relevantly another enterprise agreement under the Act.

[21] By email dated 29 June 2015, Mr McLaren complained to Mr Wakelin that another week had passed without any response from Skilled Offshore and that:

‘Should the AMWU not hear from SKO regarding a firm commitment to commence negotiations for the enterprise agreement by COD today we will put the matter in dispute and lodging with the FWC.’ 14

[22] In an email from Mr Wakelin to Mr McLauren later on 29 June 2015 it seems clear that Skilled Offshore was still considering:

‘. . . when bargaining should commence for a new Agreement.’

[23] It proposed that:

‘In the meantime, SKO understands that AMMA will be meeting with the AMWU early next week for ‘industry–level’ discussions about the renewal of our Agreement which is essentially an industry agreement’. . .
SKO is of the view that a meeting between AMWU and AMMA is the logical first step in the renegotiation process, particularly in light of the fact that none of the other Unions party to our agreement (AWU and ETU) have requested to renegotiate our agreement yet.’ 15

[24] Mr Matthew Dixon is an organiser with the Western Australian Branch of the AWU and a member of the State Executive of that branch. Mr Dixon gave the following evidence:

‘On 3 August 2015 Glenn McLaren, Les McLaughlan and I attended a meeting at AMMA's offices, which was attended by Steven Dunstan, Simon White, Mark Wakelin and Paul Schneider.

At this meeting a log of claims from both the AMWU and the AWU was served upon Skilled Offshore with a copy provided to AMMA also.

At this meeting the AMWU, CEPU and AWU also agreed to consolidate the respective Unions log of claims and send an electronic copy of the claim in an excel spreadsheet to both SKO and AMMA.

On 5 August 2015, I wrote to Simon White, and copied in Mark Wakelin and Paul Schneider to serve the Unions' amalgamated log of claims.’ 16

[25] Mr Simon White is Principal Employee Relations Consultant with AMMA. By 5 August 2015, if not earlier, AMMA was representing a number of employers including Skilled Offshore in relation to ‘a replacement framework WA and NT offshore construction industry agreement’. 17 The 5 August correspondence referred to in Mr Dixon’s evidence contained the following paragraph:

‘Please see attached spreadsheet that includes claims from the three offshore construction Unions (ETU, AMWU and AWU) with regards to the renewal of the Skilled Offshore Western Australian and Northern Territory Offshore Construction Projects Agreements 2011-2015.’(Bolding in original) 18

[26] The spreadsheet referred to in the above extracted paragraph is a document titled ‘Combined ETU, AMWU and AWU Log of Claims’ and contains items dealing with claims for wage increases and conditions of employment. 19

[27] On 6 August 2015, Mr Dixon sent an email to Mr White with a copy to Mr Dixon’s union colleagues at the AMWU and CEPU in the following terms:

‘As you are aware the SKILLED OFFSHORE WESTERN AUSTRALIA & NORTHERN TERRORITY OFFSHORE CONSTRUCTION PROJECTS AGREEMENT 2011-2015 and other similar agreements expire on the 19th of August 2015.

The AWU finds it interesting that with only weeks away from the expiry date of these agreements AMMA has advised the offshore construction Unions that you prefer to initiate unilateral discussions for an "'industry approach" to discussions around an "industry enterprise agreement discussions".

As stated at this meeting, this process could be long and convoluted and had AMMA approached the AWU 12 months ago to commence this process in this way The AWU might have entertained that offer. AMMA is seeking to commence this process mere weeks away from the expiry of these agreements leads us to question the motives of AMMA and the organisations that you represent.

As Skilled Offshore are the largest employer in the offshore construction industry and as the AMWU have taken steps with Fair Work Australia to ensure Skilled Offshore begin to bargain fairly, the AWU believes that proceeding with bargaining as defined by the Fair Work Act 2009 is the only fair and legal way to ensure that the rights of their employees are enforced through the Act. Once again, the AWU strongly encourages Skilled Offshore to issue the Notice of Representation Rights to its employees so we may commence enterprise bargaining discussions.

As per the prior commitment from the offshore construction Unions we have provided you with a combined Log of Claim document sent to you on Wednesday the 5th of August. This was an act of good faith to ensure our commitment to the enterprise bargaining process.

As stated at the meeting on the 3rd of August, the AWU would entertain a discussion with AMMA and its members, some of who do and some who do not have current enterprise agreements in the offshore construction industry, if a commitment was made by Skilled Offshore to commence good faith bargaining discussions. Skilled Offshore and AMMA did not agree to commence good faith enterprise bargaining discussions and hence we do not believe that AMMA's attempt to circumvent the Fair Work Act, to hold "industry agreement discussions" is in the best interests of the offshore construction union's members.

The AWU is willing to attend the meeting on Monday and Tuesday with industry representatives, however failing to reach agreement at these discussions AMMA must commit to ensuring that Skilled Offshore agree to commence good faith bargaining discussions and issue the Notice of Representation Rights to its employees by close of business Wednesday the 12th of August.

Please do not hesitate to contact myself on . . . or Glenn McLaren from the AMWU or Les McLaughlan from the ETU if you would like to discuss this matter further.’ 20

[28] On 6 August 2015, Mr Dixon sent email correspondence to Mr Wakelin which contained the following:

‘The Australian Workers' Union (The AWU) writes to inform you that we are in dispute over, what the AWU believes, is Skilled Offshore's refusal to commence good faith bargaining discussions for the renewal of the Skilled Offshore Western Australia & Northern Territory Offshore Construction Projects Agreement 2011-2015.

As per Clause 5 of the enterprise agreement, The AWU believes that the parities of the agreement by now have commenced good faith bargaining discussions to renew the agreement prior to its expiry on the 19^th of August 2015.

As the AWU, AMWU and ETU have meet with Skilled Offshore on three separate occasions to discuss the commencement of enterprise bargaining, and to date, there is still no agreement when Skilled Offshore will formally commence this process; The AWU feels that it is now appropriate to seek FWC's assistance in this matter.

The AWU will liaise with the other parities of the agreement the AMWU and ETU about the best way to collectively address this matter.’  21

[29] By email correspondence dated 7 August 2015 Mr Les McLaughlan, the CEPU’s ETU WA State Secretary wrote to Mr Wakelin in the substantially the same terms.

[30] By way of response, Mr Wakelin sent an email to the Unions later on 7 August 2015, which contained the following:

‘I refer to your email below, AMMA's letter to the AWU today (copied to the ETU and the AMWU, attached) and, the AMWU’s correspondence to the FWC last night (copied to the ETU and the AWU).

As I explained in our meeting earlier this week, I believe that the process proposed by AMMA is not only the more appropriate way forward but importantly, the most efficient and effective way.

Therefore, and in light of your insistence that SKO formally commence the bargaining process, I’m beginning to question your (and the other Unions') true motivation and intentions in bargaining with SKO at an enterprise level, particularly given the relatively short timeframe that our relevant workforce have remaining on the Ichthys Project (approximately 2 months).

I look forward to further discussions with the ETU and the other Unions in the manner proposed by AMMA or, failing that, then potentially in the FWC.’

[31] On 7 September 2015, representatives of Skilled Offshore and the Unions attended a conference in the Commission at which Mr McLaren told representatives of Skilled Offshore that the Unions did not wish to enter negotiations for an industry framework agreement. 22 Written correspondence confirming the position was sent to Skilled Offshore on 8 September 2015.23

[32] The events noted at [10] of this decision then followed.

[33] As earlier indicated, other correspondence also passed between the various parties, and conferences in the Commission also took place in which various of the parties participated. However, it seems to me the following is clear from the correspondence extracted above.

[34] First, Skilled Offshore wished to engage with the Unions through its representative, AMMA, to discuss and to try to reach an agreement on an industry framework agreement before, or as a necessary first step to, commencing discussions for an agreement that would cover Skilled Offshore and its employees.

[35] Secondly, Skilled Offshore did not initiate bargaining or agree to bargain for an enterprise agreement at any stage until it agreed to issue a NERR on 9 September 2015 or on 14 September 2015 when it issued the notice to employees. Given the events noted above and the opening words of the NERR issued advising that ‘Skilled Offshore Pty Ltd gives notice that it is bargaining in relation to an enterprise agreement’ (my underlining) so much may be inferred.

[36] Thirdly, the scope of the proposed agreement appears to be in dispute in as much as the NERR appears to confine the scope of the proposed agreement to ‘employees that are engaged by Skilled Offshore Pty Ltd to undertake construction work on board the Castorone vessel on the Saipem Ichthys Gas Export Pipeline Project’ whilst the Unions are proposing an agreement to replace the Current Agreement. The scope of the Current Agreement is that it applies to ‘all employees engaged by the Company in the classifications in clause 12 of this Agreement and who are engaged to work on Offshore Construction Projects off the Western Australian or Northern Territory coasts’.

[37] Fourthly, since at least 5 August 2015, Skilled Offshore has known that the Unions wanted to commence discussions for a replacement for the Current Agreement and was aware of the claims that the Unions intended to pursue in those discussions. By that date, the proposed agreement being pursued by the Unions was clearly identified.

[38] Fifthly, it is self-evidently the case that an industry framework agreement, whilst it might form the basis of a subsequent enterprise agreement made between Skilled Offshore and its employees, would not be the enterprise agreement made under the Act.

[39] Sixthly, whilst the Unions indicated a preparedness to continue to participate (or prepared to consider participation) in industry wide discussions, it seems clear that on and from 5 August 2015, they also wanted to bargain for a replacement agreement to the Current Agreement with Skilled Offshore, and told Skilled Offshore, in writing, the terms and conditions that they wanted to be the subject of the bargaining.

[40] It follows from the above, that at least on and from 5 August 2015, the enterprise agreement proposed by the Unions was clearly identified, as were the claims that were being advanced by the Unions that would be included in the proposed enterprise agreement.

[41] That Skilled Offshore did not want to bargain on this basis is beside the point. That the Unions were then still prepared to participate in industry wide discussions is also, with respect, beside the point. Presumably, the Unions, or at least the officials representing those Unions, can walk and chew gum at the same time.

[42] The submission that the proposed agreement had not been identified at the time that the Unions applied for a PABO must therefore be rejected.

Decision in Transport Workers' Union v Hunter Operations Pty Ltd

[43] In Transport Workers' Union v Hunter Operations Pty Ltd 24,Vice President Hatcher determined that the requirement in s.173(3) of the Act that an employer issue a NERR as soon as practicable and no later than 14 days after the notification time, relevantly the time when an employer initiates bargaining or agrees to bargain, was a mandatory requirement which touched upon the validity of a notice.25 The Vice President determined that a notice issued after the time prescribed would not be a valid notice.26 Once an employer initiates bargaining or agrees to bargain, the issuing of a valid NERR is a precondition to the approval by the Commission of any subsequently negotiated enterprise agreement.27 The Vice President’s analysis is in my respectful view, correct.

[44] The decision in Hunter Operations came into sharp focus during the course of the proceeding because of the conflicting evidence about when, if at all, Skilled Offshore agreed to bargain for a proposed enterprise agreement. Mr McLaren gave evidence that he believed bargaining for an enterprise agreement commenced at a meeting with officers of Skilled Offshore on 21 July 2015. 28 In an email from Mr McLaughlin to Mr Wakelin and others dated 7 August 2015, Mr McLaughlin wrote that ‘[T]he ETU believes that the parties of (sic) the agreement by now have commenced good faith bargaining discussions to renew the agreement prior to its expiry on the 19th August 2015’.29 Mr Dixon’s evidence is suggestive of bargaining for an enterprise agreement having commenced sometime in early August 2015.30 The evidence of Mr Wakelin suggests that Skilled Offshore did not agree to bargain for a proposed enterprise agreement until 9 September 2015 when it agreed to issue a NERR, or on 14 September 2015 when the notice was issued to employees.31

[45] Given my earlier findings that:

• the Unions identified the proposed agreement by at least 5 August 2015;



• Skilled Offshore agreed to bargain when it agreed to issue a NERR on 9 September 2015 or on 14 September 2015 when it issued the notice to employees; and



• the scope of the proposed agreement appears to be in issue,

it is unnecessary for me to consider the arguments advanced by Skilled Offshore which are founded on the decision in Hunter Operations.

[46] In the circumstances, and given my earlier findings, I am satisfied that an application in relation to a proposed agreement has been made under s.437 of the Act.

Whether each union has been and is genuinely trying to reach agreement with Skilled Offshore

[47] In Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing And Kindred Industries Union known as The Australian Manufacturing Workers’ Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; and The Australian Workers’ Union 32, a Full Bench of the Commission reviewed relevant Full Bench and Federal Court decisions concerning the question of whether a bargaining representative has been and is genuinely trying to reach an agreement with the employer. Relevantly for present purposes, extracts of the decision in Esso are reproduced below:

‘[33] A number of Full Bench decisions have considered the meaning of ‘genuinely trying to reach an agreement’ in s.443(1)(b) . . .
[34] In Total Marine Services Pty Ltd v Maritime Union of Australia  (Total Marine) the Full Bench upheld an appeal from a decision to grant an application for a protected action ballot. The Full Bench held that the member at first instance had erred in concluding that the applicant had genuinely tried to reach an agreement within the meaning of s.443(1)(b) in circumstances where certain claims were ‘put to one side’; the negotiations involved limited face to face meetings and limited articulation of many of the claims; many items were only set out in a list of headings, being neither explained nor discussed; and no wage claim was specified.21 In the course of its decision the Full Bench expressed the following views about s.443(1)(b),:

“[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.
[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.”

[35] For our part, for reasons we articulate later, we agree with the observations in paragraph [31] and the first three sentences of paragraph [32] of Total Marine, set out above. We note that the observations which follow the first three sentences in paragraph [32] are obiter and although we do not consider that they should be understood as attempting to establish any binding decision rule, nonetheless they are, with respect, somewhat inconsistent with the earlier expressed proposition (with which we agree) that it is not useful to articulate any alternative test or criteria to the words of s.443(1)(b). We note that similar reservations were expressed by the majority of the Full Bench in JJ Richards and Sons Pty Ltd v TWU (JJ Richards No.1) and by the Full Bench in Farstad Shipping (Indian Pacific) Pty Ltd v MUA (Farstad).
. . .
[47] The Full Bench decisions to which we have referred were all decided prior to the decision of the Full Court of the Federal Court in J.J Richards Sons Pty Ltd and Another v Fair Work Australia and Another. The applicants in that matter had contended that s.443 should be construed in a way which conditioned its operation upon bargaining having commenced. The Full Court rejected this proposition and held that a protected action ballot order under s. 443(1) of the Act may be made even though bargaining between an employer and employees has not commenced. Jessup J held, at [30]-[31]:

“However, notwithstanding that perception, and notwithstanding my disagreement, in one important respect, with the reasons of the Full Bench, it is not possible to construe s 443(1)(b) as the applicants would propose. I agree with the Full Bench that the contrast between the references to bargaining in Pt 2-4 of the Act, and the words actually used in s 443(1)(b) is striking. I accept that, under s 15AA of the Acts Interpretation Act 1901 (Cth), an interpretation should be favoured which would best achieve the purpose or object of the legislation. That is no basis, however, for the introduction of additional requirements or conditions which might have been, but which have not been, enacted. There is every reason to perceive in s 443(1)(b) a departure from the scheme of regulated bargaining set out by Pt 2-4 of the Act and, in that sense, there is a certain tension with the object referred to in s 3(f). Such a perception, however, would relate to the consistency of the implementation of legislative policy. It would contribute little or nothing to the task of construction which confronted the Full Bench.
In sum, the applicants’ case really amounts to no more than the proposition that the legislature ought, consistent with the structure and policy of the Act as a whole, have conditioned the power to make an order under s 443 upon the circumstance of bargaining having commenced. However, that was a step which the legislature did not take, and it is a step which FWA could not take. There was no jurisdictional error in the protected action ballot order made by FWA on 16 February 2011 and confirmed by the Full Bench on 1 June 2011.”

[48] As to the question of whether a bargaining representative has been and is genuinely trying to reach an agreement, Flick J said:

“It is ultimately concluded that s 443(1)(b) is to be construed such that Fair Work Australia cannot reach a state of satisfaction that an “applicant … is … genuinely trying to reach an agreement with the employer” unless:

● an applicant has approached the employer and informed the employer of the general ambit of that for which agreement is sought; and

● the employer has foreshadowed — even in the most general of terms — its attitude as to the proposed agreement.

More may be required. Much may well depend upon the factual scenario in which the terms of s 443(1)(b) are to be applied. But such a minimum statement of that which is required is sufficient to dispose of the present Application. Contrary to the submissions advanced on behalf of the Applicants, the terms of s 443(1)(b) do not require:

● bargaining to have commenced within the meaning of and for the purposes of s 173, found within Pt 2-4 of the Fair Work Act.

So much, it is concluded, follows from the natural and ordinary meaning of the phrase “trying to reach an agreement … ”. It is difficult to conclude that any person can try to reach an agreement with another in the absence of a disclosure of that for which consensus is sought. One person may wish to reach an agreement with another. But, until the general content of the proposed agreement is disclosed, it cannot be said that he has even attempted to reach an agreement. Until disclosed, it is not known whether the other person will readily embrace the proposed agreement or shun it or (perhaps) embrace the concept of an agreement but wish to vary one or other of its terms. Until disclosed, the person seeking agreement has not even tried to solicit the response of the other. Unless the disclosure is genuinely with a view to reaching agreement, it could well be said that the attempt to reach an agreement falls short of a person even trying to reach agreement. The addition of the word “genuine” — on one approach to construction — perhaps adds little. But the addition of that term serves to emphasise the importance of a person actually trying to solicit agreement. Until a proposed agreement has been disclosed to the prospective parties, and a response solicited, an applicant has not even tried to reach agreement — let alone genuinely tried to reach agreement.” 

[49] Tracey J agreed with Jessup and Flick JJ that on its proper construction s.443(1) could not be construed in the manner contended by the applicants:

“There is simply no warrant to read into the subsection words of limitation which do not appear. The legislature has required that FWA must make a protected action ballot order if the two conditions prescribed by s.443(1) are satisfied even if bargaining between an employer and employees has not commenced.” [Endnotes omitted]’

[48] The Unions submitted that they each have been and are trying to reach agreement with Skilled Offshore. I agree. It seems to me clear that Skilled Offshore has until recently maintained a preference for an industry framework agreement to be negotiated before bargaining for an enterprise agreement. The Unions have, since at least 5 August 2015, been trying to reach an agreement with Skilled Offshore for an enterprise agreement to replace the Current Agreement. In particular:

• On 5 August 2015, an email was sent to Skilled Offshore from Mr Dixon on behalf of the Unions attaching an amalgamated log of claims for a replacement agreement to the Current Agreement; 33



• The combined log of claims identified a claim for 5% per annum increase, as well as numerous other claims dealing with, inter alia:

○ Status of employment;
○ Long service leave;
○ Superannuation;
○ Communication;
○ Redundancy;
○ Overcycle;
○ Point of engagement;
○ Travel;
○ Allowance matters;
○ Agreement classifications;
○ Additional agreement clauses;
○ Safe work operations clause;
○ Training and development; and
○ Emergency and personal leave (casual and full time employee); 34

• Dispute proceedings were commenced by the AMWU in the Commission to further discussions for a replacement agreement for the Current Agreement as contemplated by Clause 5 of the Current Agreement, 35 and a few days later the Unions gave Skilled Offshore the combined log of claims referred to above.



• The Unions attended conferences before Commissioner Cloghan after 5 August 2015 to try to persuade Skilled Offshore to engage with the obligation in Clause 5 of the Current Agreement and thus they were trying to reach an agreement with Skilled Offshore on how to approach negotiations for a replacement agreement; 36



• Although the Unions remained open to the possibility of participating in industry framework agreement discussions, the Unions clearly expressed a preference to commence negotiations with Skilled Offshore for a replacement enterprise agreement for the Current Agreement; 37



• On 7 September 2015, at a conference in the Commission, the Unions made it clear to Skilled Offshore that they wished negotiate with Skilled Offshore for an enterprise agreement to replace the Current Agreement; 38



• This was followed by further correspondence from the Unions; 39



• On 9 September 2015, Skilled Offshore advised each of the Unions that it would issue NERRs; 40

[49] It seems clear enough that Skilled Offshore had not agreed to bargain for a proposed enterprise agreement until after the application for a PABO was made by the Unions, however, that bargaining must have commenced is not a precondition to satisfaction by the Commission that an applicant for a PABO has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.  41 It is also clear enough that the Unions had approached Skilled Offshore and informed Skilled Offshore of the general ambit of that for which agreement was sought, at least by 5 August 2015, and that Skilled Offshore had foreshadowed its attitude to the proposed agreement, namely that it preferred to negotiate an industry framework agreement, and only later, after the PABO application was made, did it agree to bargain for an enterprise agreement, albeit judging by the terms of the NERR, it prefers an agreement with a narrower scope than that which is proposed by the Unions. GivenSkilled Offshore’s reluctance to bargain in relation to the proposed agreement sought by the Unions, there is little more that could have been expected from the Unions although I note that they sought to advance their position about the proposed agreement through the initiation of and participation in dispute proceedings in the Commission and that this was done before the application for a PABO was made.

[50] Skilled Offshore submitted that the dispute proceedings were initiated because of a frustration that Skilled Offshore had not issued the NERR. It submitted that the steps taken by the Unions thereafter were for the purpose of achieving that outcome through trying to resolve the matter of the type of agreement to be bargained for. Their try was not to reach an agreement that had been identified. Accordingly, Skilled Offshore submitted that this step cannot be characterised as a genuine try to reach an agreement within the meaning of s.443(1)(b).

[51] This submission cannot be accepted. The relief sought by the AMWU in the dispute proceeding application is expressed in the following terms:

‘The AMWU is seeking the assistance of the Fair Work Commission in facilitating the commencement of negotiations for a replacement enterprise bargaining agreement, in the most expeditious manner possible.’ 42

[52] In the circumstances, I am satisfied on the material before me that each Union has been and is genuinely trying to reach an agreement with Skilled Offshore, being the employer of the employees who are to be balloted.

Questions to be put to the employees who are to be balloted

[53] By an amended draft PABO filed by the Unions, it is proposed that the employees who are to be balloted be asked the following:

For the purposes of supporting or advancing claims in respect of the proposed enterprise agreement with your employer, do you endorse the following protected industrial action against your employer (to be taken either separately, concurrently and/or consecutively):

1. An unlimited number of stoppages on the performance of work between 30 minutes and up to and including 24 hours? (excluding work that is required by trained and qualified persons of the emergency response teams as required by occupational health and safety legislation and regulations)

2. Bans on the performance of administrative work (except for the performance of any work required to be undertaken by legislation including any action, process or work consistent with Occupational Safety and Health legislation)?

[54] Skilled Offshore submitted that an application under s.437(1) must be in relation to ‘particular protected industrial action’ and that the application must specify the nature of the ‘proposed industrial action’. ‘Industrial action’ includes the performance of work by an employee in a manner different from that in which it is customarily performed, the result of which is a restriction or limitation on,or a delay in, the performance of the work. It submitted that given the width of the proposed action contemplated by question 1, it was possible that there would be a period of six hours during which employees, including those at whom the PABO is directed, would be unable to perform ordinary pipelaying activities.

[55] It was submitted that this would not be as a result of industrial action that is employee claim action but rather, as a necessary consequence of the industrial action taken at that time. Namely, it would be because of the fact that the inability to perform work as normal in the period of six hours is part and parcel of the preceding and subsequent industrial action and possibly inherent in the industrial action described in question 1. It was submitted that, in light of the formula that the proposed industrial action is to be taken either separately, concurrently and/or consecutively, the number of combinations and permutations of stoppages inherent in question 1, that there are very many possibilities of circumstances arising akin to that described.

[56] Skilled Offshore submitted that in effect, question 1 includes a question that asks employees to support action including action that is not industrial action. For this reason, the action specified in question 1 goes further than ‘industrial action’. Consequently, question 1 is not in accordance with s.437(3).

[57] Skilled Offshore submitted further, that as such, question 1 seeks to poll employees on whether they will approve action which could include action that creates unsafe conditions for themselves and others.

[58] Skilled Offshore contended that such action is not ‘industrial action’ within the meaning of that term in s.19(1). It submitted that Parliament could not have intended otherwise as that would require an interpretation of the Act as having primacy over occupational health and safety legislation.

[59] It was submitted that there are many indications in the Act, beginning with s.19(2), that demonstrate that Parliament intended that the term ‘industrial action’, albeit broad, should not be interpreted such that employees could take action that flouts safety requirements. Question 1 is not in accordance with s.437(3) for this reason as well.

[60] I deal with the second of these propositions first. Section 408 of the Act sets out the meaning of protected industrial action:

‘408 Protected industrial action

Industrial action is protected industrial action for a proposed enterprise agreement if it is one of the following:

(a) employee claim action for the agreement (see section 409);

(b) employee response action for the agreement (see section 410);

(c) employer response action for the agreement (see section 411).’

[61] Relevantly s.409 provides:

‘409 Employee claim action

Employee claim action

(1) Employee claim action for a proposed enterprise agreement is industrial action that:

(a) is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters; and

(b) is organised or engaged in, against an employer that will be covered by the agreement, by:

(i) a bargaining representative of an employee who will be covered by the agreement; or

(ii) an employee who is included in a group or groups of employees specified in a protected action ballot order for the industrial action; and

(c) meets the common requirements set out in Subdivision B; and

(d) meets the additional requirements set out in this section.

Protected action ballot is necessary

(2) The industrial action must be authorised by a protected action ballot (see Division 8 of this Part).

Unlawful terms

(3) The industrial action must not be in support of, or to advance, claims to include unlawful terms in the agreement.

Industrial action must not be part of pattern bargaining

(4) A bargaining representative of an employee who will be covered by the agreement must not be engaging in pattern bargaining in relation to the agreement.

Industrial action must not relate to a demarcation dispute etc.

(5) The industrial action must not, if it is being organised or engaged in by a bargaining representative, relate to a significant extent to a demarcation dispute or contravene an FWC order that relates to a significant extent to a demarcation dispute.

Notice requirements after suspension order must be met

(6) If section 429 (which deals with employee claim action without a further protected action ballot after a period of suspension) applies in relation to the industrial action, the notice requirements of section 430 must be met.

Officer of an employee organisation

(7) If an employee organisation is a bargaining representative of an employee who will be covered by the agreement, the reference to a bargaining representative of the employee in subparagraph (1)(b)(i) of this section includes a reference to an officer of the organisation.’

[62] Two provisions of the Act tell against construction advanced by Skilled Offshore. The first is the immunity provision in s.415 of the Act which provides:

‘415 Immunity provision

(1) No action lies under any law (whether written or unwritten) in force in a State or Territory in relation to any industrial action that is protected industrial action unless the industrial action has involved or is likely to involve:

(a) personal injury; or

(b) wilful or reckless destruction of, or damage to, property; or

(c) the unlawful taking, keeping or use of property.

(2) However, subsection (1) does not prevent an action for defamation being brought in relation to anything that occurred in the course of industrial action.’

[63] It seems clear from the structure of s.415 that protected industrial action might involve the OHS consequences foreshadowed by Skilled Offshore, but that where such action ‘has involved or is likely to involve’ personal injury, the protected industrial action ceases to have the benefit of the immunity provision. Provided the action is of a kind described in s.19 of the Act, the fact that it may involve a risk to health and safety does not mean that it is not industrial action, although it may mean that the immunity conferred by s.415 is lost in relation to such action.

[64] Secondly, there are other provisions in ss.424 and 431 of the Act which provide respectively:

‘424 FWC must suspend or terminate protected industrial action—endangering life etc.

Suspension or termination of protected industrial action

(1) The FWC must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:

(a) is being engaged in; or

(b) is threatened, impending or probable;

if the FWC is satisfied that the protected industrial action has threatened, is threatening, or would threaten:

(c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or

(d) to cause significant damage to the Australian economy or an important part of it.

431 Ministerial declaration terminating industrial action

(1) The Minister may make a declaration, in writing, terminating protected industrial action for a proposed enterprise agreement if the Minister is satisfied that:

(a) the industrial action is being engaged in, or is threatened, impending or probable; and

(b) the industrial action is threatening, or would threaten:

(i) to endanger the life, the personal safety or health, or the welfare, of the population or a part of it; or

(ii) to cause significant damage to the Australian economy or an important part of it.

(2) The declaration comes into operation on the day that it is made.

(3) A declaration under subsection (1) is not a legislative instrument.’

[65] It seems to me these provisions would have no work to do if industrial action could never include action involving any risk to health or safety.

[66] Accordingly, the narrow construction of the meaning of industrial action contended for by Skilled Offshore is rejected.

[67] As to the first of the propositions advanced by Skilled Offshore, it seems to me that it amounts to no more than a complaint that the potential combination of industrial action combined with the possible downtime that might result from particular forms of industrial action has the undesirable outcome that the total downtime will be a significantly longer period than the period of industrial action that has occurred. Industrial action is inherently designed to cause inconvenience and sometimes harm to an employer’s operation. It does not follow that the consequence of the industrial action, in this case the period of downtime, is itself industrial action or that the consequence must separately be authorised by a protected action ballot. The first proposition is also rejected.

[68] As to the second form of industrial action for which authorisation is sought through the ballot, Skilled Offshore submitted it does not adequately inform employees of what it is they are being asked to approve and so it does not specify the nature of the industrial action which is required by s.437(3) of the Act.

[69] Questions in a PABO should be stated with sufficient clarity so as to enable an employee to make an informed choice about whether to approve the nature of the industrial action identified in question.

[70] In John Holland Pty Ltd v AMWU and AWU 43 a Full Bench of Fair Work Australia (FWA) observed in relation to questions describing the nature of industrial action proposed for a protected action ballot order that:

‘. . . seen in its statutory context, all workers section requires is that the question should describe the industrial action in such a way that employees are capable of responding to them. If the questions are ambiguous or lack clarity there may be consequences for the bargaining representatives and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, conclusion may be reached at the industrial action specified in a notice under section 414 was not authorised by the ballot and that the action is not protected for the purposes of section 409(2). It is true that ambiguity or lack of clarity in the description of industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant.’ 44 

[71] It seems to me, on the face of the question proposed, that it describes the nature of the industrial action for which authorisation is sought, and does so in a way that employees are capable of responding to the question. That there may be some uncertainty as to what work may fall within the description of ‘administrative work’ does not detract from the adequacy of the described nature of the industrial action or the capacity of employees to respond to the question. It seems to me that the question is sufficiently clear to enable it to be answered by the employees who will participate in the ballot. Of course, disputes may later arise if notice of an administrative work ban is given, whether particular work that is the subject of the ban is administrative work or not. The Unions are now on notice of the concerns of Skilled Offshore and of the possibility of consequences on the banning of work which might not be said to be administrative work.

Ballot

[72] Skilled Offshore raised a number of concerns about the timing and terms on which the ballot is to be conducted. Without reciting each concern, they related generally to timing, compilation of the voter roll, information to voters and confidentiality of the employee list. I have taken into account some of the concerns in the PABO than I make.

Extended notice of industrial action

[73] The Commission may order that the period of notice for protected industrial action referred to in s.414(2)(a) be longer than three working days, if satisfied that there are exceptional circumstances justifying such an extension. Skilled Offshore sought a period of notice of seven working days in the event that a PABO was issued.

[74] The following evidence led by Skilled Offshore, largely from Mr Giuseppe Tese’, the Project Director of the Ichthys Gas Fields Development Project Saipem (Saipem) and Mr Paul Schneider, Skilled Offshore’s Industrial Relations Advisor, is relevant to the question whether there are exceptional circumstances, remembering that a purpose of the notice is to enable the employer to have some time to take steps to respond to or ameliorate the effects of the industrial action that is to be taken:

● The Castorone, the vessel on which the relevant employees work, is undertaking pipelaying operations at a remote location, which at the time of the hearing was 132km from the Western Australian coastline;  45

● There are around 600 employees of the respondent performing work on a fly-in fly-out roster basis in relation to the Castorone. Approximately 300 are on board at anyone time, with the remaining 300 offswing; 46

● The work performed by the employees to be balloted is complex; 47

● In the event of a stoppage of 12 hours or more, and subject to weather conditions, Saipem may have to abandon the pipeline to the seabed. That process takes approximately 13 hours to complete. Recovery of the pipeline takes a further nine hours to complete. The construction crew would also be required to attend a one hour pre-start meeting before recommencing production: 48

● As a result, Saipem will lose 23 hours of production time if the pipeline is abandoned, during which time the construction crew is unable to perform its normal duties and all production is stopped: 49

● Skilled Offshore would need to take responsive action to ensure the safety of the crew on the vessel in the event that it received notice of protected industrial action; 50

● Such action may require Skilled Offshore to bring in extra crew to perform duties that would otherwise not be performed; 51

● If a decision to bring in extra crew were made, Skilled Offshore must give Saipem at least 48 hours' notice before bringing that crew to the vessel, 52

● While the nature of the industrial action notified will doubtless determine the nature and extend of Skilled Offshore’s required response, depending on the nature and duration of the action notified, the Skilled Offshore may have to remove some or all of its crew from the Castorone and such a course of action would take 96 hours at a minimum, and may take longer depending on the availability of appropriate transportation and unfavourable weather conditions. 53

[75] Mr Tese’ was not required for cross-examination 54 and Mr Schneider was not cross examined about the matters noted in the last four dot points above.55 I accept their evidence.

[76] Consequently based on that evidence, the industrial action as currently framed by question 1, could, depending on the nature and duration of the proposed industrial action of which notice is given, require Skilled Offshore and Saipem to take responsive action involving a combination of abandoning the pipeline, removal of crew and transportation of new crew to the vessel, prevailing weather conditions and the availability of transport and crew. Given the remote location at which industrial action would occur and the consequences of that action, I am satisfied that there are exceptional circumstances and I am further satisfied that those circumstances warrant a period of written notice referred to in s.414(2)(a) for protected industrial action contemplated by question 1 being longer than three working days. The PABO that I make will require the notice period to be given to be seven working days.

[77] There is no warrant for extending the notice period in relation to the industrial action described in question 2.

Appointment of ballot agent

[78] The application made by the Unions proposes that an agent, namely RMK Investments Pty Ltd trading as the Australian Electoral Company (Proposed Agent) be appointed to conduct the ballot. This course was not opposed by Skilled Offshore. On the basis of the uncontested material contained in the statutory declaration of Mr Richard Kidd, the Principal of the Proposed Agent, I am satisfied of the matters set out in s.444(1)(a) and (b). I therefore propose to appoint the proposed agent as ballot agent for the protected action ballot.

Conclusion

[79]
For the reasons given, I have decided to issue a PABO because I am satisfied that in relation to the proposed enterprise agreement, an application has been made the by the Unions under s.437, and that each Union has been and is genuinely trying to reach an agreement with Skilled Offshore, the employer of the employees who are to be balloted. The PABO that I make is a modified version of the draft order submitted by the Unions on 25 September 2015. I am also persuaded to exercise my discretion to order that the period of notice referred to in s.414(2)(a) for protected industrial action contemplated by question 1, being longer than three working days, because I am satisfied that there are exceptional circumstances justifying such an extension. The period of notice will be seven working days.

[80] A protected ballot order is separately issued in PR572477.

DEPUTY PRESIDENT

Appearances:

P Lim for “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

N O’Brien for Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

E Douglas for Australian Workers’ Union

T Caspersz for Skilled Offshore Pty Ltd

Hearing details:

2015.

Perth:

15 September.

Melbourne:

25 September.

 1   Exhibit 6 at [3] – [4].

 2   Exhibit 3 at [10] and Exhibit 5 at [7] – [10].

 3   Exhibit 5; Attachment 13.

 4   Ibid.

 5 Exhibit 5; Attachment 14 and Exhibit 6 at [14].

 6   [2014] FWCFB 1317.

 7   Ibid at [28] – [44].

 8 Explanatory memorandum at [643].

 9 Ibid; (2004) 138 IR 362.

 10   Ibid at 377 – 378, [55].

 11   [2010] FWAFB 6519.

 12 Ibid at [8].

 13   Exhibit 3, GM-3.

 14   Exhibit 3, GM-4.

 15   Exhibit 3, GM- 5.

 16   Exhibit 4 at [22] – [25].

 17   Exhibit 3, GM- 11.

 18   Exhibit 4, MWD- 2.

 19   Exhibit 4, MWD-4.

 20   Exhibit 4, MWD- 4.

 21   Exhibit 5, Attachment 6.

 22   Exhibit 5 at [31]; Exhibit 3 at [56]-]57].

 23   Exhibit 5, Attachment 13.

 24   [2014] FWC 7469.

 25   Ibid at [70] – [78].

 26 Ibid at [79].

 27 Ibid at [72].

 28   Transcript PN 430 – PN 432.

 29   Exhibit 5, Attachment 6.

 30   Exhibit 4 at [15] – [25].

 31   Exhibit 5 at [33] – [37].

 32   [2015] FWCFB 210.

 33   Exhibit 4, MWD-2.

 34   Exhibit 4, MWD-3.

 35   Exhibit 3, GM-6.

 36   Exhibit 3; Exhibit 2 at [26]-[27].

 37   Exhibit 4, MWD-2, MWD-4, MWD-5, MWD-6; Exhibit 5, Attachment 6.

 38   Exhibit 3 at [56]-[57].

 39   Exhibit 3, GM-15.

 40 Exhibit 5 at [34].

 41   J.J Richards Sons Pty Ltd and Another v Fair Work Australia and Another (2012) 201 FCR 297.

 42   Exhibit 3, GM-6.

 43   [2010] FWAFB 526.

 44 Ibid at [19].

 45 Exhibit 7 at [21].

 46   Transcript PN 355-PN 357.

 47   Exhibit 7 at [27]-[49].

 48   Ibid at [56]-[58].

 49 Ibid at [60].

 50 Exhibit 6 at [16].

 51   Ibid.

 52   Ibid.

 53   Ibid.

 54   Transcript PN 800-PN 805.

 55   Transcript PN 748-PN 796.

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