Textile, Clothing and Footwear Union of Australia v GSM Operations Pty Ltd T/A Billabong Australia
[2013] FWC 3693
•13 SEPTEMBER 2013
[2013] FWC 3693 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute
Textile, Clothing and Footwear Union of Australia
v
GSM Operations Pty Ltd T/A Billabong Australia
(RE2013/654)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 13 SEPTEMBER 2013 |
Dispute concerning right of entry on to respondent’s Helensvale premises - whether TCFUA entitled to represent industrial interests of employees at premises - earlier application by TCFUA for majority support determination refused by FWC on grounds TCFUA not entitled to represent industrial interests of employees at premises - wrong test applied and change in circumstances - TCFUA entitled to represent industrial interests of employees at premises in accordance with TCFUA rules.
[1] On 15 March 2013, the Textile, Clothing and Footwear Union of Australia (TCFUA) applied to the Fair Work Commission (FWC) pursuant to section 505 of the Fair Work Act 2009 (the Act)for the Commission to deal with a right of entry dispute between the TCFUA and GSM Operations Pty Ltd t/as Billabong Australia (Billabong).
[2] The dispute relates to three refusals by Billabong to allow TCFUA officials entry to its Helensvale premises for the purposes of holding discussions with employees and investigating a suspected contravention of the Act. Billabong has refused entry on three occasions on the basis that the TCFUA is not entitled to represent the industrial interests of any employees at its Helensvale premises. The fact of the refusals, and compliance with all other requirements for entry in accordance with the Act, were not in dispute. 1
[3] The Act relevantly provides:
481 Entry to investigate suspected contravention
(1) A permit holder may enter premises and exercise a right under section 482 or 483 for the purpose of investigating a suspected contravention of this Act, or a term of a fair work instrument, that relates to, or affects, a member of the permit holder’s organisation:
(a) whose industrial interests the organisation is entitled to represent; and
(b) who performs work on the premises.
Note 1: Particulars of the suspected contravention must be specified in an entry notice or exemption certificate (see subsections 518(2) and 519(2)).
Note 2: The FWC may issue an affected member certificate if it is satisfied that a member referred to in this subsection is on the premises (see subsection 520(1)).
------
484 Entry to hold discussions
A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:
(a) who perform work on the premises; and
(b) whose industrial interests the permit holder’s organisation is entitled to represent; and
(c) who wish to participate in those discussions.
501 Person must not refuse or delay entry
A person must not refuse or unduly delay entry onto premises by a permit holder who is entitled to enter the premises in accordance with this Part.
Note: This section is a civil remedy provision (see Part 4-1).
505 FWC may deal with a dispute about the operation of this Part
(1) The FWC may deal with a dispute about the operation of this Part (including a dispute about whether a request under section 491, 492 or 499 is reasonable).
Note: Sections 491, 492 and 499 deal with requests for permit holders to use particular rooms or areas, and comply with occupational health and safety requirements.
(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:
(a) an order imposing conditions on an entry permit;
(b) an order suspending an entry permit;
(c) an order revoking an entry permit;
(d) an order about the future issue of entry permits to one or more persons;
(e) any other order it considers appropriate.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(3) The FWC may deal with the dispute:
(a) on its own initiative; or
(b) on application by any of the following to whom the dispute relates:
(i) a permit holder;
(ii) a permit holder’s organisation;
(iii) an employer;
(iv) an occupier of premises.
(4) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.
(5) In dealing with the dispute, the FWC must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2 or 3 of this Part, unless the dispute is about whether a request under section 491, 492 or 499 is reasonable.
[4] The TCFUA’s eligibility rules relevantly provide:
4 - CONDITIONS OF ELIGIBILITY FOR MEMBERSHIP
The TCFUA shall consist of:
(a) Without limiting the generality of any other part of this rule, all persons wholly or partly engaged or usually engaged in or in connection with the following industries, mills, factories, places of work, products or processes in Australia:-
textile, woollen (other than wool scouring), worsted, wool tops, spinning, weaving, dyeing, finishing, waste-breaking, flock, wadding, felt and feltex, flax, cotton, carpets, silk and artificial silk, rayon and/or any vegetable or synthetic fibre or non woven substance, technical textile, textile backing, textile coating, textile services, hosiery, half-hose, knitting, textile printing, textile furnishings, tapestry, braids and tassels;
------
(e) Without limiting the generality of any other part of this rule, all persons wholly or partly engaged or usually engaged in or in connection with designing, preparing, patternmaking, manufacturing, making, processing, repairing, altering, trimming, blocking, pressing, finishing and/or selling from factory outlets the whole or any part of:
(i) any male or female garment;
(ii) any article of wearing apparel whatsoever, made from material of any description;
(iii) any article of neckwear;
(iv) handkerchiefs;
(v) any fashion accessory whatsoever.
------
(l) Without limiting the generality of any other part of this rule, all persons other than electrical workers, and fitters (including persons performing the job of fitters where these persons are described as mechanical and fabrication tradespersons, and including howsoever ‘fitters’ are termed in the future), wholly or partly engaged or usually engaged in or in connection with:
------
(iii) receiving, dispatching, packing, unpacking, storing and/or otherwise handling goods at any premises referred to in any other part of this rule, or at any premises where any of the processes or activities referred to in any other part of this rule occurs.
[5] The TCFUA submitted it had complied with all of the requirements relating to right of entry under Part 3–4 of the Act and was entitled to represent the industrial interests of certain employees at the Helensvale premises. It gave evidence that the following employees were employed at the Helensvale premises at the time of each attempted entry: 2
● Watch repairers (5–6)
● Sunglasses repairer (1)
● Wetsuit repairers (2)
● Quality control employees (at least 3)
[6] The evidence before me was that from 20 February 2013 wetsuit repair work was no longer undertaken at the Helensvale premises but that the assessment of wetsuits for repair might still take place on site. 3
[7] The evidence of Ms O’Neil, National Secretary of the Victorian-Queensland Branch of the TCFUA, was that Billabong has an “------active role in the design of some or all of their products” and that they “------handle and process products in the textile, clothing and footwear industry”. 4 These products are said to include watches, sunglasses and wetsuits.
[8] The TCFUA submitted that watches and sunglasses were “fashion accessories” and therefore employees engaged in the repair of these products were within TCFUA rule 4(e)(v). 5
[9] Ms Tran, Industrial Officer of the TCFUA, gave evidence that watches are fashion accessories. She provided evidence of several websites of department stores which identified their watches as fashion accessories. 6
[10] Ms Horton, Head of Discipline, School of Creative Industries, Queensland University of Technology, gave evidence that watches and sunglasses are fashion accessories. 7 According to Ms Horton “Factors that render an item a fashion accessory include its design, by which I mean that it is designed in line with trends, its branding, and its use as a symbol of fashionability”.8
[11] Billabong did not produce any evidence which suggested these items were not fashion accessories. 9 Mr Mallon, Group Operations Manager of Billabong, initially adopted the position that these items were not fashion accessories10, but he conceded in cross examination that he was not sure and was not an expert in the area.11
[12] The TCFUA further submitted wetsuits were “apparel” and therefore employees engaged in the repair of these products came under TCFUA rule 4(e)(ii). 12 According to the TCFUA, the rule would not only capture workers doing the actual repairs but also any worker who assessed and referred wetsuits for repair.13
[13] That wetsuits could be considered “apparel” was not contested by Billabong. However, Billabong submitted that this was not pertinent as Billabong no longer employed anyone at its Helensvale premises who actually carried out repairs to wetsuits. 14 Although Billabong conceded that it still retained a worker to assess and refer wetsuits for repair, Billabong submitted that such a worker was not a wetsuit repairer.15
[14] The TCFUA also submitted that “------those engaged in QC [quality control] are engaged in or in connection with processing of garments, apparel and accessories set out in 4(e)(i), (ii) and (v).” and accordingly, are within rule 4(e). 16 Processing includes “------making sure that the items are to standard and saleable, making sure that they’re labelled------” and “------re-labelling, re-barcoding------’17
[15] The TCFUA finally submitted that, “------as the Helensvale premises has employees, whether directly employed or not, where processes or activities referred to in rule 4(e) occur, employees engaged in receiving, dispatching, packing, storing and/or otherwise handling goods fall within the eligibility under rule 4(l)(iii)”. 18
[16] Billabong submitted that “The Distribution Centre operates as an off-site storage and distribution facility for both the Respondent’s retail stores and wholesale arm of the business”. 19 According to Billabong “There is no manufacturing or design work undertaken at the Distribution Centre.”20 and “------it does not employ any employees at the Distribution Centre to perform any of the work outlined in Rule 4(e) of the Applicant’s Union Rules”.21
[17] Billabong submitted, in regard to rule 4(e), that, “------when it’s construed properly means that any fashion accessory whatsoever has to be limited to garments”. 22
[18] It further submitted that a “------watch is not a fashion accessory but a timepiece worn typically on a strap on one’s wrist.” 23 and, “------rule 4(e)(v) is clearly intended to refer to items...which almost by definition are------decorative rather than functional------”.24 It goes on further to say that “A watch is a mechanical or electronic instrument used for telling the time”, and “------may be strictly utilitarian” especially in the case of a Billabong watch.25
[19] Similarly, Billabong submitted that sunglasses, especially its sunglasses, were not fashion accessories 26 and that “They perform a useful and essential function which is quite independent of any appearance or attractiveness”.27 Ms Horton’s evidence was that “The functional character of an accessory does not prevent the item from also being fashionable.” and, “It is unlikely that the purely utilitarian aspect is the reason why we would purchase such items”.28 Ms Horton stated “The value of the item lies in its branding and not necessarily in its functional aspect”.29
[20] In relation to quality control workers, or Supplier Compliance Administrators, Mr Mallon gave evidence that these “Employees do not amend or alter the product if it is unfit for sale” and “Stock is either destroyed or sent back to the supplier”. 30 In describing this aspect of Billabong’s operations at its Helensvale premises counsel for Billabong submitted that “What we do is purely an administrative function getting it ready for sale”.31
[21] Ms O’Neil gave evidence that “------finishing, in industry terms, means doing anything to a product to ready it for movement to a customer or client. This could include such activities as pressing, clipping threads, labelling, tagging, wrapping, inspecting, applying quality control, packaging or packing”. 32 Billabong rejected this evidence and argued “the notion of finishing does not fit with the concept of receiving and checking and then despatching within an Australian distribution centre, goods wholly manufactured outside Australia”.33
[22] Finally Billabong submitted “------that while employees at the Helensvale Site perform receiving, dispatching, packing, unpacking, storing and other handling of goods, this work is not performed at any premises referred to in another part of Rule 4 nor at premises where any of the processes or activities referred to in any other part of Rule 4 of the TCFUA Rules occurs”. 34 As such it submits that rule 4(l)(iii) has no application. It further submitted rule 4(l)(iii) is “------not an alternative rule. It’s a rule that you only get to use if you satisfy rule [4](e)”.35 The TCFUA agreed with this construction.36
[23] On 2 August 2012 an application was made by the TCFUA under section 236 of the Act for a majority support determination to cover employees of Billabong. The application was determined by Commissioner Spencer on 20 December 2012. 37 One of the key issues that fell for determination in that case was whether the TCFUA was entitled to represent the industrial interests of the employees it sought to cover. In that regard, Commissioner Spencer said (references omitted):
[26] Whilst the TCFUA urged the Tribunal to take a generous approach to the construction of the eligibility rules, the evidence did not support the TCFUA eligibility rule that all persons (at the distribution centre) “were wholly or partly engaged in or in connection with designing, preparing, patternmaking, manufacturing, making, processing, repairing, altering, trimming, clocking, pressing, finishing and or selling” any garments, apparel, fashion accessories etc.
[31] In assessing the eligibility rules by way of their “broad...but ordinary or popular denotation”, the evidence of the work does not marry with that in the eligibility rule.
[32] The Respondent submitted it is predominantly a retailer. There was no conclusive evidence that employees were involved in design or manufacture or any of the other processes set out in the eligibility rule.
[35] The Respondent is engaged on the evidence in the retail industry and operates a distribution centre (in support of the retail stores), where product (designed and manufactured overseas) is packed, dispatched and distributed.
[36] Whilst Rule 4(1)(iii) refers to “receiving, dispatching, packing, unpacking, storing and or otherwise handling goods” it must be emphasised that as per the Rule, these functions are to be performed by “persons...engaged in...industries: mills, factories, places of work, products or processing in Australia”. The work characterising those industries is:
“Without limiting the generality of any other part of this rule, all persons wholly or partly engaged or usually engaged in or in connection with designing, preparing, patternmaking, manufacturing, making, processing, repairing, altering, trimming, blocking, pressing, finishing and/or selling from factory outlets the whole or any part of footwear of every description including but not limited to boots, shoes, slippers and wood lasts.”
[37] In terms of the construction of the eligibility rule as set out by the TCFUA, to cure any ambiguity it was submitted to, first return to the industry. On the material provided, the industry is retail. This is so on the basis of the processes, the employees are engaged in, which are not those as set out in the Rules relating to manufacture, or design etc. Whilst the products are fundamentally textile, the functions of dispatch etc, are not in connection with the industries or functions in the eligibility rule, accordingly coverage is not caught by the Rule.
[38] The work of the Respondent is not connected with those processes. The Respondent is engaged in the retail industry. None of the above functions are performed save for very limited watch repairs and a swimsuit repairer (but not employed by the Respondent). Accordingly in terms of Rule 4(e) the nature of the duties of dispatching etc undertaken by the Respondent is not connected with an industry of the type described in Rule 4(a) or in connection with a process incorporated in Rule 4(c), (d) or (e). Accordingly the relevant coverage of the Respondent’s employees is not made out.
(my emphasis)
[24] The TCFUA lodged an appeal against the decision of the Commissioner on 9 January 2013 38 but subsequently withdrew it.
[25] According to Billabong “The issue central to these proceedings is the same as the central issue decided by the Commission in the Original Decision.” 39 Mr Pratt agreed with the Commissioner’s findings and submitted that “------because the rules are confined to an industry; they are confined to occupations within those industries that are listed in rule 4(a)”.40 Billabong submitted “The issue estoppel doctrine applies in this Commission.” and “The elements of that doctrine, as they apply to the facts of this case, result in a conclusion that the applicant is estopped from advancing this matter”.41 Mr Pratt submitted “If the elements are met, then it’s an injustice to proceed with the matter and at odd with the interests of justice...”42
[26] The TCFUA submitted that the doctrine of issue estoppel is concerned only with the judicial determination of issues and may not have any application to determinations of the FWC. 43 The TCFUA went on to submit “------that as a matter of law, the Commission could not conclusively decide the rights of representation under Union rules. That’s a judicial function------”44
[27] In any event, the TCFUA urged me to consider that “Commissioner Spencer never ruled on the question of whether there were or weren’t wet suit repairers at the premises because they weren’t there.” and “There was a significant change in the facts on the ground”. 45 Mr Clarke, a former employee of Billabong who was engaged in the assessment of wetsuits for repair46, gave unchallenged evidence that his job was moved to the Helensvale premises in September 2012 and that he remained there until he was made redundant on 27 March 2013.47 The evidence of Mr Clarke also suggested that the person who actually carried out repairs to wetsuits, Ms Lee, was also transferred to the Helensvale premises at around the same time.48 Ms Lee is also no longer employed with Billabong.49 According to Mr Borenstein, counsel for the TCFUA, “------this is a move that appears to have occurred after the previous proceedings before Commissioner Spencer”.50
[28] Mr Mallon gave evidence that both the assessment and actual repair of wetsuits had been outsourced, but that the assessment process is still shared with a worker at the Helensvale premises. 51 Mr Mallon conceded that this worker undertakes the same assessment process as previously undertaken by Mr Clarke.52 The TCFUA submitted that rule 4(e)(ii) would not only capture workers doing the actual repairs but also workers who assess and refer wetsuits for repair.53
[29] The TCFUA also respectfully submitted that the Commissioner’s decision contained errors and for this reason the FWC should “------exercise the discretion in favour of deciding this matter and not terminating it on the grounds of the issue estoppel argument------” 54 Mr Borenstein argued “------that it’s no objection to rule 4(e) to say, well, rule 4(e) might go beyond what is described as the clothing, textile, and footwear industry.” and “It is permissible for a TCFUA to have eligibility rules that go beyond the industry rule------.55. Mr Borenstein submitted that “------the vocational rule isn’t dependent on the industry of the employer, it’s simply dependent on the activities which the individuals are engaged in.”56 Other apparent errors that were identified by the TCFUA were that the Commissioner “------took the view that all the people have to be engaged in the activities under 4(e)------”57 and that she also took into account a matter that is not relevant under rule 4(e), namely that certain workers at the Helensvale premises were not directly employed by Billabong.58
[30] The TCFUA sought an order that TCFUA officials holding requisite permits are entitled to enter the Helensvale premises in accordance with Part 3–4 of the Act.
[31] I will determine the issue estoppel issue first. Whether or not a member of the FWC is bound by the doctrine of issue estoppel, there are a number of reasons related to the proper and efficient administration of the business of the Commission which could properly persuade a Member not to rehear, consider and determine an issue which had been determined by another member. There are also counter considerations which might cause a Member to hear an application where such an issue is at large for determination.
[32] In this case I am persuaded that I should consider the issue of coverage even though it has been relatively recently considered by Commissioner Spencer. Firstly, it is in furtherance of the objects of the Act that an organisation with an appropriate interest be able to examine the wage records of its members to ascertain that their entitlements are being paid. Such applications are often urgent, particularly in circumstances where the financial viability of the employer might be in doubt. Secondly, in applications of this kind, the actual circumstances in the workplace may be subject to change and, as a consequence, the circumstances considered by a Member in an earlier decision might be significantly different to the circumstances considered in any later application. Thirdly, I am persuaded that the test applied by Commissioner Spencer in her previous consideration was incorrect. These rules are vocational rules, not industry rules, and not all persons employed at the site have to be covered by the rules of the TCFUA for the TCFUA to have a right of entry to check on the entitlements of its members.
[33] This is an application where a number of factual findings are necessary regarding the work undertaken by employees of Billabong. I have considered the submissions of the parties, in particular the evidence of Ms Horton and Ms O’Neill. As Head of School in her discipline I accept Ms Horton as an expert witness in fashion. I am also satisfied that Ms O'Neill’s knowledge of the textile, clothing and footwear industry is extensive, given her long service to the TCFUA and its members.
[34] What is a fashion accessory ought not to be a complicated question. Nor, from the description in rule 4(e) is the category of fashion accessory intended to be defined narrowly. The rule states "---(v) any fashion accessory whatsoever." I am satisfied that the use of the word "whatsoever" is intended to produce a broad definition of what is a fashion accessory. I am not persuaded that the definition is confined to a category of fashion accessory that might be considered a garment.
[35] The submissions of Billabong as to whether or not watches and sunglasses are fashion accessories is based on the proposition that they have a practical function and are therefore that they are not fashion items. Watches have a functional purpose. It submits that watches record the time for the wearer. Watches designed by surf brands also often have an extended functional purpose in being able to be used for aquatic purposes. I am satisfied that although many of the watches designed by Billabong, and demonstrated on their online catalogue, are very functional and practical watches, they are also very decorative, fashionable trend orientated items. Although sunglasses also have a useful, and some might say, an essential function in protecting the eyes from the rays of the sun, they are also very fashionable and demonstrate many different fashion trends.
[36] Watches and sunglasses have, for at least as long as I can remember, been subject to fashion trends. They are fashionable items identified by brand. The brand itself can be fashionable. Billabong is a fashionable brand, particularly with younger people who identify with its surf identity. Functional items are very often deliberately fashionable with each brand producing a functional product which competes with other brands by distinguishing itself by its fashion differences. The array of fashionable watches and sunglasses used to accessorise an outfit is not infinite but any person who has been exposed to the retail sale of such items understands that despite function, fashion in these items is ubiquitous.
[37] A further question to be determined is whether or not assessing a wet suit for repairs is part of the process of repairing the wetsuit. I am satisfiedthat it is. It is common sensethat a wetsuit cannot be repaired unless the extent of the repair necessary is first assessed. No repairer repairs any item at large without prior assessment. The task is assessed and then the repairs are carried out. I am satisfied that assessing is an essential part of repairing.
[38] I am also satisfied that replacing the tags and labels onto garments when they have become detached is part of the finishing of garments referred to in the rules. If the garment is identified with a tag before sending it to retailers that action is simply part and parcel of the process. Bundling and unbundling orders for shops and checking for quality is, in my opinion, part of processing.
[39] The TCFUA submitted that because various members were involved in work repairing wetsuit suits and various fashion accessories, then rule 4 (l) (iii) would allow other employees to be covered by the TCFUA if they were engaged in warehousing activities where the earlier described activities were taking place. I accept that submission.
[40] I am not concerned about the number of employees in each category. There only has to be one employee in one category. I am satisfied there was at least one such worker.
[41] I am satisfied that the TCFUA officials who were previously refused entry to the Helensvale Billabong premises were entitled to enter those premises in accordance with Part 3-4 of the Act on each occasion that access was refused by Billabong. I am satisfied that TCFUA officials are presently entitled to enter the Helensvale Billabong premises in accordance with Part 3-4 of the Act. If an order to this effect is required the TCFUA should provide a draft.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr H. Borenstein of Counsel for Textile, Clothing and Footwear Union of Australia
Mr D. Prattof Counsel for GSM Operations Pty Ltd t/as Billabong AustraliaHearing details:
Sydney
31 July
2013
1 Transcript at PN107 and PN108.
2 Submissions of the applicant, paragraph 47. See also Affidavit of Neil Clarke, paragraph 12.
3 Transcript at PN451 to PN457.
4 Affidavit of Michele O’Neil, paragraph 31.
5 Submissions of the applicant, paragraphs 51-52.
6 Affidavit of Oanh Thi Tran, paragraph 5.
7 Affidavit of Kathleen Elizabeth Horton, paragraph 4.
8 Affidavit of Kathleen Elizabeth Horton, paragraph 5.
9 Transcript at PN630.
10 Transcript at PN398.
11 Transcript at PN436.
12 Submissions of the applicant, paragraph 53.
13 Transcript at PN584.
14 Submissions of respondent, paragraph 29 (subsequent paragraph 29). Affidavit of Richard Charles Mallon, paragraph 19.
15 Transcript at PN442-PN444 and PN451-PN457.
16 Submissions of the applicant, paragraph 54.
17 Transcript at PN195.
18 Submissions of the applicant, paragraph 56.
19 Submissions of respondent, paragraph 5 (initial paragraph 5). Affidavit of Richard Charles Mallon, paragraph 6.
20 Submissions of respondent, paragraph 5 (initial paragraph 5). Affidavit of Richard Charles Mallon, paragraph 8.
21 Submissions of respondent , paragraph 8 (subsequent paragraph 8).
22 Transcript at PN670.
23 Submissions of respondent, paragraph 24 (subsequent paragraph 24).
24 Submissions of respondent, paragraph 17 (subsequent paragraph 17).
25 Submissions of respondent, paragraph 21 (subsequent paragraph 21). Also see paragraph 24 (subsequent paragraph 24).
26 Submissions of respondent, paragraphs 26-28 (subsequent paragraphs 26-28).
27 Submissions of respondent, paragraph 27 (subsequent paragraph 27).
28 Affidavit of Kathleen Elizabeth Horton, paragraph 6.
29 Affidavit of Kathleen Elizabeth Horton, paragraph 7.
30 Affidavit of Richard Charles Mallon, paragraph 22.
31 Transcript at PN723.
32 Affidavit of Michele O’Neil, paragraph 14.
33 Submissions of respondent, paragraph 38.
34 Submissions of respondent, paragraph 31 (subsequent paragraph 31).
35 Transcript at PN741.
36 Applicant’s submissions in reply, paragraph 21.
37 [2012] FWA 7906.
38 C2013/2662
39 Respondent’s submission - issue estoppel, paragraph10.
40 Transcript at PN736.
41 Respondent’s submission - issue estoppel, paragraph 16.
42 Transcript at PN758.
43 Transcript at PN785-PN801.
44 Transcript at PN799. Also see Applicant’s submissions in reply, paragraph 7.
45 Transcript at PN583. See also PN137.
46 Affidavit of Neil Clarke, paragraphs 6 and 7.
47 Affidavit of Neil Clarke, paragraph 11.
48 Affidavit of Neil Clarke, paragraphs 18 and 27.
49 Transcript at 450 and 451.
50 Transcript at PN137.
51 Transcript at PN451 and PN458.
52 Transcript at PN452-PN457.
53 Transcript at PN584.
54 Transcript at PN821.
55 Transcript at PN576.
56 Transcript at PN818.
57 Transcript at PN814.
58 Transcript at PN815.
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