National Union of Workers v Clifford Hallam Healthcare Pty Ltd

[2015] FWC 5525

[2015] FWC 5525

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
Clifford Hallam Healthcare Pty Ltd
(B2015/1032)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 17 AUGUST 2015

Proposed protected action ballot of employees of Clifford Hallam Healthcare Pty Ltd.

Introduction and background

[1] The National Union of Workers (NUW) is a bargaining representative of some employees of Clifford Hallam Healthcare Pty Ltd (CHH). These employees will be covered by a proposed agreement that is currently the subject of bargaining between the NUW and CHH. These employees are currently covered by the Clifford Hallam Healthcare Pty Ltd (Victoria, Tasmania, Queensland and New South Wales) and NUW Enterprise Agreement 2012 (current agreement). The nominal expiry date of that agreement has passed.

[2] CHH is a wholesaler and distributor of pharmaceutical, medical consumables and equipment to a variety of healthcare providers and facilities operating in Australia. 1 CHH does not itself manufacture any product but it facilitates the supply and distribution of products manufactured by others. Some of the products that it supplies include those which are described as life preserving drugs and medical consumables.2 Other products supplied by CHH are of a more mundane kind, such as plastic cups and other disposable products used by patients and staff of hospitals.

[3] Approximately eighty percent of the business of CHH involves the supply and distribution of pharmaceutical and medical consumable products to hospitals in Australia. 3

[4] CHH also supplies medical or medical related products directly to patients, for example, it supplies scripted nutritional feeds for people who do not have the ability to consume solids and who are solely dependent on these products for their sustenance. 4

[5] CHH operates a just in time method of distribution model in relation to the supply of products to its hospital customers. In effect, it operates as a warehouse for the supply of pharmaceutical and medical consumables that are required by its hospital customers. 5

[6] In early March 2015 the NUW provided to CHH a log of claims which represented the position of the NUW in respect of the content of the proposed agreement. 6 Bargaining for the proposed agreement commenced in early June 2015.7

[7] On 31 July 2015 the NUW made application under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order. The application sets out seven questions relating to particular industrial action for which authorisation is sought. CHH opposes the application and in the alternative, it maintains that if a protected action ballot order is made, there are exceptional circumstances justifying a period of written notice referred to in s.414(2)(a) of the Act, being longer than three working days. It proposes that pursuant to s.443(5), the ballot order, if made, should specify a period of seven working days.

[8] CHH also maintains that question five of the series of questions in relation to which the ballot is to be conducted, is ambiguous and unclear. This has the effect, according to CHH, that no valid application under s.437, as required by s.443(1)(a) of the Act has been made.

[9] CHH’s opposition to the application is founded on a submission that on the evidence, I cannot be satisfied that the NUW has been, and is, genuinely trying to reach an agreement with CCH as the employer of the employees who are to be balloted.

[10] I deal with each of these matters below.

Legislative scheme

[11] The requirements relating to Protected action ballots, applications for orders for ballots and the conduct of ballots are set out in Part 3-3, Division 8 of the Act.

[12] A protected action ballot order will only be made on application 8 relevantly, by a bargaining representative of an employee who will be covered by a proposed enterprise agreement. It is common ground that the NUW is a bargaining representative of at least some of the employees who will be covered by the proposed agreement. It is also not in dispute that the nominal expiry date of the current agreement has passed and that the NUW has served a copy of its application on CHH and the Australian Electoral Commission (AEC), within 24 hours of making the application.9

[13] A protected action ballot order may only be made in limited circumstances 10  and the Commission must make an order if it is satisfied that:

(a) there has been an application made under section 437; and

(b) the applicant,in this case the NUW,has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted. 11 

Technical Aspects

[14] I will deal firstly with the technical aspects of determining the application for a protected action ballot order. As I have already indicated, there is no dispute that the NUW is a bargaining representative for the proposed agreement. There is also no dispute that the NUW has given a copy of the application to CHH and to the AEC within the period specified in s.440 of the Act. The NUW has made an application under s.437 of the Act however CHH submits that as question five set out in the application is vague and unclear, that question does not properly describe the nature of the industrial action, and so there is no valid application under s.437(1). This is said to be because the NUW has not complied with s.437(3), which concerns the content of the application. It follows according to CHH, that the precondition set out in s.443(1)(a) has not been met.

[15] This submission is misconceived. I will deal with the question of ambiguity later in these reasons, however for present purposes, even assuming that a particular question in a series of questions relating to industrial action proposed in an application is ambiguous or uncertain so that, if it appeared in a protected action ballot order, the question might not enable employees to respond, it does not follow that this renders the application invalid or otherwise results in there being no application under s.437 of the Act. One consequence of a poorly drafted question in an application is that it does not find its way into the protected action ballot order ultimately made. But it is the protected action ballot order which contains the question or questions that are to be put to employees and which must describe the nature of the proposed industrial action 12 in such a way that employees are capable of responding to the question or questions.13 As s.599 of the Act makes clear, the Commission is not required to make a decision in relation to an application in the terms applied for. It follows that the mere appearance in an application of a question which, if it appeared in the ballot order might not enable employees to answer the question, does not invalidate the application. I am satisfied that the application is one that is made under s.437 of the Act.

Genuinely trying to reach agreement

[16] The question of whether the NUW has been and is genuinely trying to reach an agreement with CHH requires a finding of fact which is to be arrived at by reference to the circumstances of the particular negotiations.  14 Generally, the determination of this factual question will require consideration of the extent to which negotiations have progressed and the steps taken by the NUW to try and reach an agreement.15 It is not necessary to show that negotiations for the proposed agreement or for an item of the proposed agreement have been exhausted and it is not necessary to show that the making of an application for a protected action ballot order is a last resort.16

[17] In order to establish that the NUW has been and is genuinely trying to reach an agreement with CHH, the NUW called Ms Elizabeth Barrett, an industrial officer employed by the NUW and the officer responsible for bargaining for the proposed agreement with CHH, to give evidence. 17 Ms Barrett was not cross-examined. Ms Barrett’s evidence was as follows:

‘6. On 2 March 2015 I emailed the NUW’s log of claims to the Company
(the log of claims). The claims had been developed in consultation with
members (including through the completion of surveys).

4 June 2015 meeting

7. The first bargaining meeting occurred at the NUW’s offices in Docklands
on 4 June 2015. The NUW was represented by NUW Organisers (Ron
Herbert and Monique Segan), NUW delegates (Jez Tua, Dianne
Sullivan, Eli Luafalealo, Stacey Flavell and Fred Speller) and me. The
Company was represented by Ken Parsons (Ken) (Chief Financial
Officer & Company Secretary) and Darren Rogers (Darren) (General
Manager Supply Chain).

8. During the meeting the NUW representatives explained each claim on
the log of claims.

9. Ken also gave a presentation on the Company’s financial position. Ken
said that the Company wanted to ‘pause’ negotiations for a year - there
would be no wage increase this year and no guarantee of a wage
increase in subsequent years. Ken and Darren said they would consider
some of the NUW’s claims (these were minor, cost-neutral ones) but
that was all.

10. The NUW representatives considered the Company’s position over a
break. The NUW representatives then responded that if the Company
wanted to ‘pause’ negotiations for a year they would need to offer
employees a wage increase of at least 2.5% in the meantime, which we
said was the increase that the Fair Work Commission had awarded in
the annual wage review ruling. The NUW representatives said that we
believed that members would be very unhappy with the Company’s
position.

11. Darren and Ken said that they would respond to the NUW’s position on
15 June 2015 (this meeting was subsequently delayed at the Company’s
request).

23 June 2015 meeting

12. The second bargaining meeting occurred on 23 June 2015. It occurred
by way of telephone conference, because the Company had only agreed
to fly NUW delegates to Melbourne for the first meeting.

13. The same people participated in this meeting, with the addition of a
NUW member from the Derwent Park distribution centre (the NUW
delegate from this distribution centre was on personal leave).

14. At this meeting Ken and Darren said that they still wanted a ‘pause’ but it
could be for 9 months (so until 1 January 2016). The Company was still
not offering a wage increase this year or guaranteeing a wage increase
in subsequent years.

15. Ken and Darren said that in the meantime the Company would be willing
to establish the training committees referred to in the Agreement; try to
get more information included in employees’ payslips; ask employees
whether they would prefer gift cards rather than a Christmas party and
hamper; ask the landlord of the Lytton site whether it would install
shower facilities; and not unreasonably refuse requests from employees
for part-time work/flexible hours.

16. The NUW representatives indicated that we were very disappointed with
the Company’s position.

Since 23 June 2015

17. During the course of negotiations, the NUW organisers and delegates
have conducted regular feedback sessions with members employed at
the Dandenong South, Lytton, Derwent Park and Eastern Creek
distribution centres.

18. Following the bargaining meeting on 23 June 2015, mass meetings were
held at all of these distribution centres during which members rejected
the Company’s position and endorsed the NUW making an application
for a protected action ballot order.

19. On 30 July 2015 I telephoned Ken. I told Ken that members had asked
us to make an application for a protected action ballot order. I told Ken
that members wanted a wage increase. Ken then said words to the
effect of “no, put in the application”.’  18

[18] Ms Monique Cegan, an organiser employed by the NUW involved in bargaining with CHH gave evidence that on 2 July 2015 she conducted a mass meeting of NUW members at the Dandenong South site of CHH at which she discussed the position that the company had put during a bargaining meeting on 23 June 2015. 19 Ms Cegan’s evidence was that at that meeting NUW members endorsed the NUW seeking a protected action ballot order.20 The outcome of that meeting, including that the NUW members at that site maintained a claim for a wage increase, was communicated to CHH shortly after the conclusion of the meeting by Ms Cegan.21

[19] Ms Cegan also gave evidence that she conducted a further mass meeting at the Dandenong South site on 29 July 2015 in order to update NUW members on the progress of the protected action ballot application. 22 The NUW had not at that point made an application. Ms Cegan’s evidence was that prior to the commencement of the meeting on 29 July 2015, Mr Ken Parsons, the Chief Financial Officer and Company Secretary of CHH, sent an email to Ms Cegan inquiring whether speaking notes which set out the company’s position would be of assistance.23 Speaking notes were subsequently provided to Ms Cegan24 and Ms Cegan read out those notes during the meeting. Ms Cegan’s evidence was that she did not report the outcome of the members meeting of 29 July 2015 to CHH as she had already told CHH on 2 July 2015 that the offer made by the company on 23 June 2015 had been rejected.25

[20] The evidentiary basis for CHH’s contention that the NUW has not and is not genuinely trying to reach an agreement with CHH is contained in the evidence given by Mr Parsons as follows 26:

‘23. On or about 2 March 2015, the NUW served on CH2 a log of claims and notice of employee representational rights (NORR). Attached to my statement and marked KMP-2 is a copy of the log of claims and NORR.

24. On 4 June 2015, CH2’s General Manager Supply Chain, Darren Rogers (Darren) and I met with the NUW (Industrial Officer and Organisors from Melbourne and Sydney) and CH2’s delegates (from Melbourne, Sydney and Brisbane):

a. we presented CH2’s poor financial position to the NUW and delegates, namely that CH2 is financially distressed having made losses last year and this year. CH2 has implemented a financial turnaround plan to stern the losses and (in the hope to) make the business profitable again. Attached to my statement and marked KMP-3 is a copy of that presentation;

b. we explained that CH2 was not in a position to agree to an increase in wages and requested a ‘pause’ on negotiations in relation to financial claims in the log of claims for 12 months until 31 March 2016;

c. we discussed with the NUW the non-financial components of the log of claims;

d. we agreed with the NUW that we would both reflect on our respective positions and that we would hold a second meeting (via telephone) on 23 June 2015.

25. Following this meeting and prior to our next scheduled meeting, the NUW held site meetings in each State. Only a few days after our initial meeting, I found several NUW flyers in the canteen at our Dandenong distribution centre. Attached to my statement and marked KMP-4 is a copy of that flyer. The flyer entirely misconstrues CH2’s ‘pause’ stating that CH2 “management offered you $ZERO wage increase”. I was really disappointed to see this flyer as we had just agreed with the NUW to reflect on each other’s position and I felt that it was misleading and just an attempt to get more members.

26. On 23 June 2015, Darren and I met (via telephone) with the NUW (Industrial Officer and Organisers from Melbourne and Sydney) and CH2’s delegates (from Melbourne, Hobart, Sydney and Brisbane):

a. we agreed to a number of the non-financial claims being sought by the NUW;

b. we also told the NUW that we expected to be in a position to judge whether CH2’s turnaround plan was showing signs of success by the end of the year and agreed to reduce CH2’s request for a ‘pause’ in the negotiation of financial claims until 1 January 2016;

c. the NUW agreed to put CH2’s position back to its members for consideration and get back to us.

27. On 2 July 2015, there was a meeting held between the NUW and its members (in Melbourne). I believe similar meetings were held in Sydney, Brisbane and Hobart around this time. I assumed we would hear back from the NUW following these meetings with a response to our ‘pause’ position, but that did not happen.

28. On 20 July, I understand that the Melbourne Organiser, Monique Segan (Monique), contacted the Melbourne distribution centre manager to request another meeting with the NUW members and it was agreed that the meeting would occur on 29 July 2015 at CH2’s distribution centre at 60 South Park Drive, Dandenong South.

29. On 28 July 2015 I offered to provide Monique with “speaking notes” that outlined CH2’s position for the purposes of the NUW’s proposed meeting with members on 29 July 2015. Monique accepted this offer and that day I sent her some notes. Attached to my statement and marked KMP-5 is a copy of those notes.

30. CH2 gave these same notes to the SDA (in respect of the negotiations on the Beresfiled Agreement) and was told that its members unanimously supported the company’s ‘pause’ position.

31. On 29 July 2015, the NUW held a meeting with its members at our Dandenong distribution centre. Again, I expected that following this meeting the NUW would be able to provide us with a formal response to our position or to further engage with us regarding the negotiation. However, there was no such discussions and certainly no further requests from the NUW to hold further discussions with CH2. We are not sure whether the NUW has put CH2’s position back to its members in the other States covered by the Agreement.

32. On 30 July 2015, I received a call from Elizabeth Barrett of the NUW informing me that the NUW was going to make an application for a protected action ballot order.

33. On 31 July 2015, CH2 was served with this application.

34. To date, we have still not had a response from the Union regarding our position communicated to them on 2 July and set out in the ‘speaking notes’ provided in writing on 29 July 2015.

[21] Mr Parsons acknowledged during cross-examination that he had been told by Ms Barrett on 30 July 2015 that the NUW members wanted a wage increase. This was contrary to the offer of a pause in negotiations and no resumption of wage discussions until at least January 2016 being proposed by CHH. The response of the NUW may not have engaged with CHH’s financial difficulties or even fully acknowledge them but the position of the NUW and the reason for it was communicated and was responsive to CHH’s position as set out in the speaking notes. 27

[22] The position of CHH was that it was relevantly proposing no wage increases until 1 January 2016 at which time it would like to recommence good faith bargaining for a new enterprise agreement for a three-year period. CHH proposed that all of its employees (whether covered by an enterprise agreement or not) ‘will not receive any pay increases at this time as we monitor the financial performance of CH 2 for the next 6 months’. 28 It is difficult to accept that a communication to CHH on 30 July 2015 to the effect that the NUW members wanted a wage increase is anything other than responsive to that position.

[23] In any event, although not exclusively, it seems to me that CHH’s objection amounts to an allegation that the NUW was not meeting the good faith bargaining requirements which are set out in s.228 of the Act and therefore, given the nature of its conduct, was not genuinely trying to reach agreement with CHH.

[24] First, to state the obvious, if CHH is concerned about the NUW not meeting the good faith bargaining requirements then it was always open to it to pursue such remedies as are available for such a contravention under the Act. There is no evidence that such an application either was made or is in contemplation. I do not accept that the evidence of Mr Parsons demonstrates a failure to genuinely try to reach agreement either during the course of the negotiations or currently.

[25] Mr Parsons’ evidence was largely concerned with the adequacy of the response to the position of CHH and the perceived failure by the NUW to properly engage with CHH about its proposal.

[26] Any perceived shortcomings in the response given to CHH by the NUW is a matter concerning good faith bargaining, but the concept of genuinely trying to reach an agreement should not be conflated with the good faith bargaining requirements. 29  Self-evidently, a party may not meet a particular good faith bargaining requirement but may, nevertheless, be genuinely trying to reach an agreement.30

[27] Further, to the extent that it was submitted that there was an absence of genuineness in trying to reach an agreement with CHH because the NUW’s application for a protected action ballot order was made before the response to CHH’s position was given by the NUW, that submission does not survive scrutiny of facts. It is the uncontested evidence of Ms Barrett, and confirmed by Mr Parsons (notwithstanding his assertion at [34] of his witness statement), that on 30 July 2015, Ms Barrett responded to the position of CCH by informing Mr Parsons that the NUW members wanted a wage increase. The application for a protected action ballot order was made the following day, on 31 July 2015. There is nothing in the evidence which suggests that the NUW has not been or is not, genuinely trying to reach an agreement with CHH. The evidence clearly points the other way.

[28] Moreover, to the extent that CHH relied on the final two sentences in paragraph [32] of the decision in Total Marine Services Pty Ltd v Maritime Union of Australia 31 as an aid to this submission, I do not propose to adopt that approach for the reasons most recently explained by a Full Bench of this Commission in ESSO Australia Pty Ltd v AMWU, CEPU and AWU.32 In any event it seems clear on the evidence that the NUW has clearly indicated to CHH the major items it seeks to be included in an agreement and has provided a considered response to CHH. That CCH does not like the response or that it was hoping for a different response does not alter that fact.

[29] In the circumstances I am satisfied that the NUW has been and is genuinely trying to reach agreement with CHH for a proposed enterprise agreement.

Question 5

[30] The NUW proposes seven questions concerning the nature of industrial action for which authorisation is sought in the ballot. Question five asks whether employees would authorise:

‘An unlimited number of bans on paperwork of indefinite duration?’

[31] CHH submitted that this question is ambiguous and that it gives rise to two issues. Firstly it is said that employees who are asked to vote in the ballot will be unable to make an informed choice because of the ambiguity in the question. Secondly it is said that there is uncertainty as to what work will be included in the proposed ban on paperwork. CCH submitted that the term ‘paperwork’ in the context of a modern distribution centre operation is unclear and so that, for example, keyboard work and the use of hand-held scanners which generate paperwork may or may not be the subject of the ban.

[32] CHH submitted that questions in a protected action ballot order 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.

[33] In John Holland Pty Ltd v AMWU and AWU 33 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.’ 34

[34] 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 paperwork 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 a paperwork ban is given, whether particular work that is the subject of the ban is paperwork. The NUW is now on notice of the concerns of CHH and of the possibility of consequences on the banning of work which might not be said to be paperwork.

Extended notice requirement

[35] As I have earlier indicated CHH submitted that if a protected action ballot order were issued, that there are exceptional circumstances justifying a period of written notice referred to in section 414 (2) (a) of the Act, being longer than three working days and it proposed a period of seven working days. CHH does not operate on weekends and so the effect of a period of notice of seven working days would be to give CHH nine calendar days’ notice. CHH initially relied on the evidence of Mr Parsons, which in summary suggested that interruptions to the supply chain caused by the taking of protected industrial action could result in a shortfall in the supply of critical pharmaceutical and feeding products and thereby placing at risk the health of those who rely on these critical products. 35

[36] Ultimately Mr Parsons’ generalised evidence contained in his witness statement did not stand up in cross examination. 36 I subsequently gave leave to CHH to lead further evidence in relation to the existence of exceptional circumstances for the purposes of s. 443 (5) of the Act. Pursuant to that leave CHH file a further witness statement of Mr John Munnik, the commercial operations manager of CHH.37 Mr Munnik’s statement contains more detailed evidence about the impact of an interruption to the supply chain that might be caused by protected industrial action, the limited nature of alternative sources of supply and the various steps that would need to be taken before alternative sources of supply could be secured.38 I had initially scheduled a hearing for 5.00pm on 18 August 2015 in order to allow the NUW to cross examine Mr Munnik, however by email correspondence to my Chambers of 13 August 2015 the NUW indicated that it was prepared to accept that a period of five working days written notice of industrial action should be given and it provided a draft order reflecting its revised position.39 This is in effect seven calendar days.

[37] By email correspondence from its solicitors on 14 August 2015, CHH advised that it did not oppose a protected action ballot order being made in the form of the draft order attached to Ms Barrett’s email of 13 August 2015. 40

[38] On the basis of the evidence of Mr Munnik, which appears to be uncontested, I am satisfied, in relation to the proposed industrial action that will be the subject of a protected action ballot, that there are exceptional circumstances justifying a period of written notice referred to in section 414 (2) (a) being longer than three working days. Having regard to the views of the parties the protected action ballot order will specify a longer period, which will be five working days’ written notice.

Conclusion

[39] For the reasons earlier given, I am satisfied that a protected action ballot order must be made. I am also satisfied that there are exceptional circumstances justifying a longer period of written notice in relation to the industrial action the subject of the protected action ballot order that I make. That period will be five working days.

[40] A protected action ballot order has already been issued in PR570889.

DEPUTY PRESIDENT

Appearances:

Mr A. Portelli and Ms. E Barrett for NUW

Ms L. Houlihan for Clifford Hallam Healthcare Pty Ltd

Hearing details:

Melbourne

11 August 2015

Tuesday

Further evidence provided on 12 August 2015.

Further submissions on 12 August 2015.

 1   Exhibit 4 at [5]

 2   ibid

 3   ibid at [6]

 4   ibid at [9]

 5   ibid at [7]

 6   Exhibit 1 at [6]

 7   ibid at [7]

 8   Section 443(1)(a) and (2)

 9   See s.440

 10   See s.443(2)

 11   See s.443(2)

 12   section 443 (3)

 13   see John Holland Pty Ltd v AMWU and AWU[2010] FWAFB 526 at [19]

 14   Total Marine Services Pty Ltd v Maritime Union of Australia (2009) 189 IR 407 at [31]

 15   Ibid at [32]; see also Esso Australia Pty Ltd v AMWU, CEPU and AWU[2015] FWCFB 210 at [34]-[35]

 16   CEPU and AMWU v Kraft Foods Ltd (2010) 197 IR 12.

 17   Exhibit 1

 18   Ibid at [6]-[19]

 19   Exhibit 2 at [4]

 20   ibid

 21   ibid at [6]

 22   ibid at [7]

 23   ibid

 24   Exhibit 3

 25   Exhibit 2 at [8]

 26   Exhibit 4

 27   Exhibit 3 (3rd page)

 28   ibid at [6] and [7]

 29   Total Marine Services Pty Ltd v Maritime Union of Australia (2009) 189 IR 407

 30   ESSO Australia Pty Ltd v AMWU, CEPU and AWU[2015] FWCFB 210 at [18]; See also the decisions of Gostencnik DP in NUW v Riverland Oilseeds Pty Ltd [2013] FWC 5914 at [17] - [ 19]; Hamberger SDP in TWU v CRTGroup Pty Ltd[2009] FWA 425 at [26], and Lewin C in NUW v SKF Australia Pty Ltd[2010] FWA 6557 at [19] - [21].

 31 2009) 189 IR 407

 32   [2015] FWCFB 210 at [35]

 33   [2010] FWAFB 526

 34   ibid at [19]

 35   exhibit 4 at [9], [18] – [21]

 36   transcript PN 287 – PN 343

 37   witness statement of Mr John Barry Munnik , 12 August 2015

 38   ibid at [4] – [18]

 39   email from Elizabeth Barrett dated 13 August 2015 and attached draft order

 40   email from Louise Houlihan dated 14 August 2015

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