Endeavour Energy v Australian Municipal, Administrative, Clerical and Services Union & Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
[2011] FWA 5833
•15 SEPTEMBER 2011
Note: An appeal pursuant to s.604 (C2011/6111) was lodged against this decision.
[2011] FWA 5833 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Endeavour Energy
v
Australian Municipal, Administrative, Clerical and Services Union
&
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2011/195)Electrical power industry | |
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 15 SEPTEMBER 2011 |
Application for FWA to deal with a dispute in accordance with dispute settlement procedure in enterprise agreement; whether employees have an implied term in their contract of employment in relation to the allocation of motor vehicles.
[1] Endeavour Energy (the applicant) filed an application on 27 April 2011 for FWA to deal with a dispute under the terms of the dispute settlement procedure in the Endeavour Energy Enterprise Agreement 2010 (the enterprise agreement). The parties named as respondents were the Australian Municipal, Administrative, Clerical and Services Union, New South Wales United Services Branch (‘ASU’), and the Communications, Electrical, Electronics, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, New South Wales Division (Electrical Trades Division, NSW Divisional Branch) (CEPU) (collectively, ‘the unions’).
[2] Clause 28 of the enterprise agreement, ‘Disputes’, includes the following:
‘The objective of this DSP is to ensure that disputes relating to the relationship between the employer and employees are dealt with in accordance with this clause.’
The clause provides for disputes about ‘corporate wide’ matters which have not been resolved at the corporate level to be referred to FWA for conciliation and/or arbitration with the rights of the parties to appeal being reserved.
[3] The dispute concerns the applicant’s desire to implement changes in the way it allocates motor vehicles in accordance with its motor vehicle policy. The matter was discussed at a conciliation conference on 4 May 2011, but was not resolved. It was then listed for arbitration. Directions were issued for the parties to exchange written outlines of submissions, witness statements and copies of relevant documentation. Hearings were held in Sydney on 22 and 24 August 2011.
[4] At the hearings the applicant was represented by Mr Gerard Phillips, a partner with Middleton’s, and the unions by Mr Aaron McKinnon, a legal officer with the Electrical Trades Union - New South Wales Branch. The following witnesses gave evidence on behalf of the applicant:
- Mr Mark Greenhill (Manager, Employee Relations);
- Mr David Morrison (Manager, Supply Chain); and
- Mr Drew Ferguson (General Manager, Health and Safety).
[5] The following witnesses gave evidence on behalf of the unions:
- Mr Scott McNamara (Manager, Energy and Utilities, ASU);
- Mr Bradley Currey (CEPU union organiser);
- Mr Noel Langby (Underground Mains Co-ordinator);
- Mr Mark Turner (Lineworker Leading Hand);
- Mr Shaun Collimore (Lineworker Leading Hand);
- Mr Steven Pryke (Cable Jointer);
- Mr Daniel Thompson (Cable Jointer); and
- Mr Robert Balabka (Electrical Fitter Mechanic).
The history of the dispute
[6] For some years, Endeavour Energy (and its predecessor, Integral Energy) has had a policy in place that has allowed employees to be given approval to take home work vehicles, under certain circumstances.
[7] ‘Take home vehicles’ are company vehicles that are used for work purposes only. No private use is permitted other than direct travel between the driver’s home and work site or depot. There are currently 138 passenger vehicles being used as take home vehicles, 387 light commercial vehicles and 96 trucks. 1
[8] The policy has historically stipulated that a take home vehicle may be assigned to a specific position if:
a. The driver is required to be on standby roster;
b. The driver is required to start and finish on the job remote from the normal work location; or
c. The driver is required to be on call. 2
[9] It is not in dispute that the policy has in the past been inconsistently or ‘haphazardly’ applied. 3 Nor was it contested during the hearings that some employees who carry out the same role as other employees have been allocated a take home vehicle whilst others have not.4 According to Mr Morrison, in the past some employees were given permission to take home a vehicle due to a business need at that time. The take home status of their vehicle was then allowed to continue without being reviewed to see if there was a continuing business need (as proper application of the policy would have required). Take home use of vehicles was sometimes approved by line managers who did not have the authority to do so5. Mr Morrison agreed that even though take home vehicles are allocated to a position, not an individual, employees have sometimes been assigned a vehicle, moved position, and retained the vehicle (without the appropriate approval under the policy.)6
[10] In or about February 2009, the Board of Endeavour Energy sought to implement a Fleet Improvement Plan. One of the principles of the Fleet Improvement Plan was to ensure that company funded passenger, light commercial and heavy vehicles would not be used as take home vehicles if they were to be taken home to a location more than 30 kilometres from their base depot, unless there was a business case approved by the Chief Financial Officer. Under the Fleet Improvement Plan, if a business benefit cannot be demonstrated then the take home classification of a vehicle would be changed to business use only. 7
[11] The applicant has sought to implement a new policy based on the Fleet Improvement Plan (Administration of Company Vehicles and Plant GTT 0019) 8. Comparing the new policy to its predecessor, I observe that the changes to the part of the policy dealing with the allocation of take home vehicles are relatively minor. However as part of the process of seeking to enforce the new policy, the status of 403 take home passenger, light commercial and heavy vehicles have been reviewed as to the business benefit of their take home classification.
[12] The review process required line managers to review vehicles that were being taken home by employees against the criteria in the policy. Line managers categorised employees with take home vehicles into three groups:
a. Category A - covering employees who require a take home vehicle;
b. Category B - covering employees who only require a take home vehicle when on a standby roster; and
c. Category C - covering employees who do not require a take home vehicle.
[13] The review led to 226 employees being assessed as falling within Category A, 58 as Category B, and 119 Category C. 9
[14] Endeavour Energy first held discussions with the unions about the proposed changes to the allocation of motor vehicles in July 2008. Discussions were held between the parties at a number of Peak Consultative Committee meetings, where the unions indicated their opposition to the policy. Some changes were made to the policy in response to concerns expressed by the unions. 10
[15] Endeavour Energy wrote to a number of employees indicating that their position did not meet the criteria for a take home vehicle. This led to the lodgement of 184 grievances from employees in respect of take home vehicles. 11 A dispute was lodged with the New South Wales Industrial Relations Commission in 2009 with respect to the motor vehicle policy. While aspects of the dispute were resolved through these proceedings, the issue of the allocation of take home vehicles was not. Following the approval of the enterprise agreement, Mr Greenhill wrote to the unions in April 2011 notifying them that Endeavour Energy sought to resume the enforcement of the policy. The unions confirmed the issue was still in dispute, which led to Endeavour Energy’s application on 27 April 2011.
[16] During the hearings, Mr McKinnon made clear that the unions did not deny that the employer had a right to alter its motor vehicle policy. Rather, the unions’ concern was that the policy had to be applied reasonably, in a way that respected the situation of those employees whom the unions believed had an implied term in their contract of employment giving them an entitlement to a take home vehicle 12. Mr McKinnon did not submit that the entitlement to a take home vehicle arose from any industrial instrument, nor from the motor vehicle policy, but from the agreements that he said had been reached between various individual managers and individual employees13. The circumstances where the employees gained these entitlements ‘were not directly or obviously circumstances arising out of the motor vehicle policies’.14 He also acknowledged that the alleged entitlements did not arise from written agreements.15
[17] The nub of the issue before the tribunal is whether any employees have an implied term in their contract of employment entitling them to a take home vehicle. 16
The evidence
[18] Mr Langby, in his written statement, said:
‘I was offered a Take Home Vehicle in 1997 by my Manager Keith Oliver to compensate me for not taking a redundancy package following my change of residence to the Central Coast.’
[19] He said that he had accepted this offer. He also indicated that his position description provided ‘Take Home use’. He also said that loss of the take home vehicle would affect his productivity and that of other co-workers. 17
[20] Under cross-examination, Mr Langby agreed that it was his understanding that the take home vehicle was part of the position at the time he applied for it, though there was nothing in writing 18. Mr Langby also agreed that he could lose take home use of the vehicle if he was found to be driving under the influence of alcohol, if he allowed a family member to drive the vehicle, and if he did not have somewhere to store the vehicle. Finally he agreed that in his statement he had identified his productivity and that of his employer as the reason why he said he should maintain his ‘take-home right’.19
[21] In his statement Mr Turner said that he was unaware of his position description providing take home use. He said that approval for his take home vehicle had been ‘verbally provided’ by Mr Ferguson, during 1997-1998. He said that removal of his entitlement to a take home vehicle would affect his productivity and that of other employees 20. Mr Ferguson gave evidence that while he was involved in a meeting where Mr Turner worked, where the issue of take home vehicles was discussed, he was not generally involved in discussions with individual employees in relation to vehicles.21
[22] During his cross examination, Mr Turner agreed that he could lose access to a take home vehicle if he let a family member drive it, or if he drove under the influence of alcohol.
[23] Mr Collimore, in his written statement, said that he had been given verbal approval to have a take home vehicle by Mr Ferguson and General Manager Alan Slett during 2001. He had never signed any annual documentation relating to his entitlement to a take home vehicle. Loss of his take home vehicle would adversely affect his productivity and that of eight other co-workers. 22
[24] Mr Collimore was asked:
‘So really the reason why it’s needed for you is really the business case in that it’s more efficient in your view for you to be able to drive straight to the site rather than the depot? --- Yes, I find it very efficient and productive - works really well the way we’re doing it today.
Yes, and that’s the reason you assert as to why you would like to keep the take home rights? --- Yes.’ 23
During his cross examination, Mr Collimore was asked:
‘Now, would you accept this proposition: because of the nature of both of those positions or roles that you were performing, it was necessary to assist in your carrying out of those roles for you to be provided with take home use? Would that be correct? --- Yes.’ 24
[25] While he was giving his evidence, he referred to what he described as a ‘business case’ document from December 2003. 25 The document was unsigned, though it had the names of Mr Ferguson and Mr Flett on it. It was headed ‘Business Case for Authorisation for Take Home Vehicle 1 x ISUZU 850 Elevated Work Platform TD149805’. The document referred to the then motor vehicle policy (‘Corporate Procedure GTT0016’). The basis of the justification for Mr Collimore to continue to have a take home vehicle was described in the document thus:
- LV switching operations, assist District Operators to carry out HV isolations, LV paralleling, erect temporary traffic signage.
- Assist and carry out DNI switching operations when required, this requires early start and late finish on site.
- Start and finish times in the field compared to start and finish in the Depot is + or = to 60%
- Shaun is on standby one week per month but is available when the need arises.
‘This vehicle is currently a take home vehicle to enable to start and finish on site when required to carry out the following:
Recommendation
That we require Shaun Collimore to continue to be authorised to take home 1 x ISUZU 850 Elevated Work Platform to be used by Central Region (Hoxton Park).’
[26] During his oral evidence Mr Ferguson said that he had not written the document. With reference to documents such as this he said:
‘These typically were the outcome of a process of review or initiation of a business case for a take-home vehicle. Typically my section managers, those reporting to me, would provide substantial reason that would be documented and would be handed to me for endorsement/approval for that vehicle to be taken home for the purposes of business - business use application.’
[27] Mr Ferguson agreed that the reference in the document (which he described as an ‘approval document 26’) to company procedure GTT0016 was to the vehicle policy in force at the time. He also agreed that approvals such as the one in relation to Mr Collimore were judged in accordance with this policy.27 During his cross examination he said that the approval document was the outcome of a review in 2003. Such reviews were required as part of the policy.
[28] Mr Ferguson said he was unaware of any employees taking home vehicles without approval under the policy process. 28
[29] During his examination-in-chief, Mr Pryke was asked how he came to have take home vehicle use.
‘---Yeah, I’m Energy Australia trained. I’m not Integral trained, and I walked in off the street with an interview and I was told at that interview that the position comes with a take-home vehicle.’ 29
[30] During his cross examination, the following interchange took place:
‘...would you agree that the only reason you assert that you should keep the take-home rights relates to productivity and customer satisfaction? Is that a fair reading of your statement? --- Yes, it certainly improves productivity for the company.
Yes? --- Most definitely. I get loaned to other sections where I have to start and finish on site.
I mean, that’s the basis of it, because you start and finish onsite? --- Yes.
You may have call-out from time to time? --- Yeah.
So because of that, it assists you in performing that position, doesn’t it? --- It assists the customer in me getting on site quicker.
If you weren’t in that position where you were subject to either the call-out roster or had to start and finish onsite, there’d be no need for you to have the take-home rights, would there, in terms of the business case? --- I don’t know. I don’t think I can answer that. I’m not sure.
All I’m saying is you’ve identified productivity, about going to sites and being able to start more quickly and effectively and if there’s call-out - what I’m saying is if those circumstances didn’t exist, there wouldn’t be a need for you to have the take-home vehicle, would there? --- Well, that’s part of my job to do that...If I changed jobs, If I got another position, yes, but how my job is at the moment I required it.’ 30
[31] Mr Balabka, in his written statement 31, said that his position description provides take home use. From 1995, take home use for his vehicle had been verbally provided. He said he had received written approval from Mr Ferguson. Under cross examination he indicated that he no longer had the document giving approval, and seemed unsure about its contents32. He was also rather vague about what year approval was given.33
[32] During his examination-in-chief he said that 13 years earlier he had been working at Minto depot and Mr Ferguson held a meeting with all the staff and pointed out that the depot looked like it was going to close down. He asked if anybody could take a vehicle home or had provision for a vehicle.
[33] Mr Balabka said the company gains productivity benefits from his entitlement to a take home vehicle by having him start and finish on site. He agreed during cross examination that if he no longer started and finished on the job he would not require a take home vehicle. 34
Consideration of the issues
[34] The term ‘entitlement’ was used frequently during these proceedings. It could be said that those employees who have been given approval to take home a vehicle are thereby in one sense ‘entitled’ to do so. The issue in this case is whether the entitlements to take home vehicles enjoyed by certain employees are contractual in nature - and therefore legally binding. If such entitlements are not legally binding, in the circumstances of this case there is no legal impediment for Endeavour Energy to take them away, without the payment of compensation, if it chooses to do so. For any of the employees to have a legally binding entitlement to a take home vehicle, this entitlement must exist either by express agreement between the employee and Endeavour Energy, or by way of an implied term.
[35] Both parties agree that the enterprise agreement does not provide the employees with an entitlement to a take home vehicle. The unions, on the other hand, contend that a term providing an entitlement to take home vehicles should be implied into the common law contract of employment of certain employees.
[36] In BP Refinery (Westernport) Pty Ltd v Shire of Hastings 35, the Privy Council set out five requirements before a court can imply a term into a contract:
(1) It must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it; (3) it must be so obvious that ‘it goes without saying’; (4) it must be capable of clear expression; (5) it must not contradict any express terms of the contract.
[37] Brennan CJ, Dawson and Toohey JJ in Byrne v Australian Airlines 36said with regard to these requirements:
‘In laying down those criteria, it was recognised that there was a degree of overlap. Further, as Deane J has observed (see Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 at 121), the cases in which the criteria in BP Refinery (Westernport) Pty Ltd v Shire of Hastings have been applied in this Court are cases in which there was a formal contract, complete on its face. He pointed out that a rigid approach should be avoided in cases, such as the present, where there is no formal contract. In those cases the actual terms of the contract must first be inferred before any question of implication arises. That is to say, it is necessary to arrive at some conclusion as to the actual intention of the parties before considering any presumed or imputed intention. And the test to be then applied was in a later case formulated by Deane J in these terms (Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539 at 573):
"The most that can be said consistently with the need for some degree of flexibility is that, in a case where it is apparent that the parties have not attempted to spell out the full terms of their contract, a court should imply a term by reference to the imputed intention of the parties if, but only if, it can be seen that the implication of the particular term is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case. That general statement of principle is subject to the qualification that a term may be implied in a contract by established mercantile usage or professional practice or by a past course of dealing between the parties.”’
[38] As noted by Deane J, a term may be implied into a contract through custom and practice. In Con-Stan Industries 37Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ said:
‘The circumstances in which trade custom or usage may form the basis for the implication of terms into a contract have been considered in many cases. The cases have established the following propositions:
(1) The existence of a custom or usage that will justify the implication of a term into a contract is a question of fact...
(2) There must be evidence that the custom relied on is so well known and acquiesced in that everyone making a contract in that situation can reasonably be presumed to have imported that term into the contract... “(The custom) must be so notorious that everybody in the trade enters into a contract with that usage as an implied term. It must be uniform as well as reasonable, and it must have quite as much certainty as the written contract itself.”
(3) A term will not be implied into a contract on the basis of custom where it is contrary to the express terms of the agreement...:
(4) A person may be bound by a custom notwithstanding the fact that he had no knowledge of it. ... in modern times nothing turns on the presence or absence of actual knowledge of the custom; that matter will stand or fall with the resolution of the issue of the degree of notoriety which the custom has achieved...’.
[39] Mr McKinnon submitted that:
‘There is custom and practice in this organisation that allows for the provision of vehicles and entitlements to vehicles. The entitlement may arise by the employee taking a contract of employment for a specific role, and that role identifying the entitlement to a take-home vehicle.’
[40] In addition to arising from custom and practice, Mr McKinnon submitted that a contractual right to a take home motor vehicle might arise from specific arrangements such as the situation of Mr Langby. 38 In his case the term should be inferred as one necessary to give efficacy to the contract of employment.39
[41] One of the difficulties with the unions’ case is that they have not identified with any degree of precision what term should be implied into the employees’ contracts of employment. Mr McKinnon submitted:
‘the term that should be inferred as a term of the contract of employment is that arrangement that existed when the agreement was struck between the applicant and its employees and that term is that the employee while employed by the applicant in a position requiring start and finish on the job has the right to take-home use of the assigned vehicle.’ 40
[42] It is not clear from this whether the unions are submitting that all the employees of the applicant who occupy a position requiring start and finish on the job have a contractual entitlement to a take home vehicle, or only those employees who have previously had approval for a take home vehicle. Moreover, even the unions’ witnesses acknowledged that any such right to a take home vehicle was subject to certain limitations, for example where the employee breached certain rules, such as driving under the influence of alcohol, or allowing someone other than the employee to drive the vehicle. Other issues would be uncertain such as who would have responsibility for maintenance, fuelling etc. It would be very difficult to infer that an implied term exists, where the precise nature of that term was so unclear.
[43] In addition to custom and practice, the unions contend, at least in relation to some employees, that a term should be implied providing an entitlement to a take home vehicle on the basis that such a term is necessary to give business efficacy to the contract of employment. I do not consider that the evidence supports this submission. The employee witnesses all gave evidence that losing access to a take home vehicle would adversely affect their productivity. Even if one were to accept that evidence at face value, there was no convincing evidence that having an entitlement to a take home vehicle was necessary for any of the employees to perform their job. This is not a case where (as would be required by the second criterion in BP Refinery), if the term did not exist, the contract of employment would be ineffective.
[44] There are a number of difficulties with the unions’ submission about the implication of a term on the basis of custom and practice, beyond the inability to identify the precise nature of such a term. The alleged custom itself is rather unclear. As was noted by the High Court in Con-Stan Industries, before a term can be implied on the basis of custom and practice, the custom “must be so notorious that everybody in the trade enters into a contract with that usage as an implied term. It must be uniform as well as reasonable, and it must have quite as much certainty as the written contract itself”.
[45] The evidence demonstrates that the entitlement to a take home vehicle - far from being ‘so notorious’ that everybody knew it existed - did not ‘go without saying.’ None of the employee witnesses claimed to have an entitlement to a take home vehicle until they had received the approval of their manager. The employee witnesses all gave their accounts of the various circumstances which led to their being given approval to take home a motor vehicle. In no case does this approval appear to have been automatic. While the motor vehicle policy may not always have been applied consistently, in at least some cases, take home motor vehicles were only allocated on the basis of an approved business case. Moreover the ‘haphazard’ application of the policy itself is inconsistent with there being a uniform custom, letting alone one having ‘quite as much certainty as the written contract itself’. Mr Morrison’s evidence that some employees who carry out the same role as other employees have been allocated a take home vehicle whilst others have not was not challenged.
[46] While it was not specifically put by the unions, I have considered whether the arrangements entered into between Endeavour Energy and some of the employees may have constituted an express (rather than implied) term in the employee’s contact of employment concerning a take home vehicle (even if that express term was unwritten).
[47] The evidence discloses that the situation was quite similar to that considered by Senior Deputy Polites in a decision concerning whether the provision of free parking at the Sydney Opera House (SOH) was a condition of their employment for certain employees. 41 In that case a number of employees had been told at their recruitment interview that car parking would be available at the SOH if their employment application was successful. Indeed some of the employees indicated in their evidence that they would not have taken the job without the provision of car parking. The Senior Deputy President noted that all of the employees said it was their belief that cost free parking was a condition of employment at SOH. He commented:
‘This evidence, however, begs the question, it is not the belief of the applicants which is important; it is whether as a matter of objective fact the contracts of employment entered into by these employees with the SOH contained such terms.’
[48] The Senior Deputy President analysed the evidence and formed the conclusion that cost free parking was not a condition of employment of any of the employees.
‘It was clearly not provided for in any written documentation entered into at the time the claimants were employed. Moreover, while it is clear that cost free parking was referred to at the selection interviews of the claimants in various ways I am not able to form the view on the evidence before me that what was said about cost free parking in any of the interviews evinces an intention by the parties at the time of the formation of the contract that the provision of cost free parking was to be a term of the employment. In my view, the evidence taken as a whole supports the conclusion that it had been a practice at the SOH since its opening to provide cost free parking to employees who required it and that employees inquiring as to parking at their selection interview were told this. Put simply they were told what SOH practice was. This in my view does not establish that there was an intention on the part of the SOH that this practice be incorporated as a condition of employment into the employment contract of any employee. On this analysis the provision of cost free parking was not an expressed term of employment.’ 42
[49] The evidence in this case shows that certain employees who started and finished on the job were granted approval to take home a vehicle. This was broadly consistent with the motor vehicle policy at the time, and was generally in the context of some identified benefit to the company from granting the approval. That the rules in the policy were inconsistently applied does not alter this. As was the case with the Sydney Opera House, there is a lack of evidence establishing there was an intent on the part of the employer that this arrangement was incorporated as a condition of employment in to the employment contact of any of the employees. I find that the provision of a take home vehicle was not an express term of any of the employees’ contracts of employment.
Conclusion
[50] I am satisfied, on the basis of the evidence presented to me, that none of the employees in question have a contractual entitlement to a take home vehicle. Endeavour Energy is at liberty to proceed with the implementation of its motor vehicle policy on this basis.
SENIOR DEPUTY PRESIDENT
Appearances:
G. Phillips, for Endeavour Energy
A. McKinnon, for the Australian Municipal, Administrative, Clerical and Services Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, and the Association of Professional Engineers, Scientists and Managers, Australia
Hearing details:
Sydney
2011
22, 24 August
1 Exhibit E3 paragraph 4
2 Exhibit E3, paragraph 13
3 PN132, PN1199
4 Exhibit E3, paragraph 26
5 PN261
6 PN271-273
7 Exhibit E3 paragraphs 9-11
8 Attached to Exhibit E1 as M-G3
9 Exhibit 3 paragraphs 19 - 22
10 PN 164 - 169
11 Exhibit E1, paragraph 9
12 PN1447
13 PN 99-105
14 PN1433
15 PN115
16 PN 71-76
17 Exhibit U3
18 PN482-485
19 PN490-501
20 Exhibit U4
21 PN983-996
22 Exhibit U5
23 PN717-718
24 PN688
25 PN615, Exhibit E6
26 PN1002
27 PN972-982
28 PN1020-1021
29 PN741
30 PN784-791
31 Exhibit U8
32 PN882-895
33 PN875-881
34 PN919
35 BP Refinery(Westernport) Pty Ltd v Shire of Hastings [1977] HCA 24
36 Byrne v Australian Airlines [1995] HCA 25
37 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur (Australia) Ltd [1986] HCA 14
38 PN1460
39 PN1476
40 PN79
41 Media, Entertainment and Arts Alliance v Sydney Opera House Print M9086, 7 February 1996
42 Ibid p.5
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