Transport Workers' Union of Australia v Bristow Helicopters Australia Pty Ltd
[2011] FWA 3094
•30 MAY 2011
[2011] FWA 3094 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.437—Protected action
Transport Workers’ Union of Australia
v
Bristow Helicopters Australia Pty Ltd
(B2011/2838)
COMMISSIONER CLOGHAN | PERTH, 30 MAY 2011 |
Proposed protected action ballot by employees of Bristow Helicopters Australia.
[1] On 10 May 2011, the Transport Workers’ Union of Australia (“TWU”) made application to Fair Work Australia for a Protected Action Ballot Order pursuant to s 437 of the Fair Work Act 2009 (FW Act).
[2] The employees to be balloted are members of the TWU employed by Bristow Helicopters Australia Pty Ltd (“the Employer”) who perform duties on Barrow Island, Western Australia and who will be covered by a proposed replacement enterprise agreement.
[3] The employees to be balloted have their conditions of employment regulated, in part, by common law contracts with their Employer. Prior to March 2011, some but not all of the employees were party to Australian Workplace Agreements and Individual Transitional Employment Agreements until those employment agreements were terminated formally in accordance with the FW Act.
[4] On 16 May 2011, the application was heard and determined. At the conclusion of the hearing, I was not satisfied that the TWU had been and is genuinely trying to reach agreement with the Employer, and accordingly, declined to make the order as sought by the TWU and dismissed the application. This Decision sets out the reasons for not issuing the order sought in the application.
[5] At the hearing, the TWU was represented by Ms Papa, and Mr Richard Burton, Organiser, TWU, gave evidence in support of the application. Mr Drake-Brockman represented the Employer and Mr Ron Sherpenzeel, Commercial Manager, gave evidence opposing the application.
RELEVANT BACKGROUND FACTS
[6] From 1 July 2010, Bristow Helicopters has been contracted to Chevron Australia Pty Ltd to operate the Barrow Island (“BWI”) Airport. The BWI airport is used to transport personnel, goods and equipment for both Chevron’s existing production facilities on Barrow Island and the Gorgon construction project. The airport is predominantly used to fly workers between Barrow Island, Karratha and Perth.
[7] Since August 2010, Bristow Helicopters has employed the following employees at BWI airport:
2 Coordinators
4 Administrators
2 Security Administrators
10 Ground Handlers
[8] During 2010 and 2011, Bristow Helicopters had discussions with the Coordinators and Administrators on claims which they had made relating to their conditions of employment. Agreement was reached between the parties on the claims, with the exception of a productivity payment. By agreement, the productivity payment was referred to an independent arbitrator. The independent arbitrator determined that the claim could not be substantiated in a decision on 10 May 2011.
[9] Separately, Bristow Helicopters engaged in discussions with the Ground Handlers in 2010 and 2011 about the terms and conditions of their employment. On 3 March 2011, agreement was reached with the Ground Handlers and new common law contracts of employment were issued, signed and returned to the Employer during the month of March 2011. It is notable that on 3 March 2011, the Employer was provided by a Ground Handler, a sheet of paper headed “Appointment of Bargaining Representative”. While I was not provided with the document, I understand the document to be a version of the one provided by Mr Burton in his written statement of evidence 1.
[10] In early January 2011, Mr Burton met with some of the relevant employees and indicated the benefits of an enterprise agreement. On 18 January 2011 one of the employees indicated to Mr Burton that “all” (not defined) employees wanted to pursue an enterprise agreement. Mr Burton met with Bristow Helicopters on 31 January 2011 and indicated, on behalf of the employees, that he represented members at BWI airport and their desire to pursue an enterprise agreement.
[11] Following the meeting on 31 January 2011, Bristow Helicopters continued discussions with its employees and it was advised that the relevant employees did not want TWU to represent them in negotiations. Around the same date, Mr Burton organised what he described as a “petition” appointing the TWU as their bargaining representative with regards to negotiations for an Enterprise Agreement 2 but at that time related to discussions concerning common law contracts of employment.
[12] On 22 March 2011, Mr Burton emailed Ms Briggs indicating that the employees “would like the TWU to bargain for them in the ongoing discussions that you have been having” - that is, discussions relating to common law contracts of employment.
[13] On the same day, 22 March 2011, Ms Briggs, the Employer’s Human Resources Manager, responded to Mr Burton that “terms and conditions have been agreed and finalised” and that there was no need for bargaining 3.
[14] On 5 April 2011, Mr Burton sent a further email to Ms Briggs stating that members of the TWU wish to “formulise” an enterprise agreement that “spells out employment conditions and rates of pay” 4.
[15] Having received no response, on 14 April 2011, Mr Burton again emailed Ms Briggs outlining his understanding that “there has been agreement made in principle in respect to wages. The union has been asked to formulise (sic) this in the way of an Enterprise Agreement... We have also been asked to clarify the term and also the classifications to be put in the agreement ... The Union needs to know your position on these matters” 5.
[16] On the same day, Ms Briggs responded stating that, in the Employer’s view, employees were content with the discussions, had received their pay increase from 1 March 2011 but would continue to address any concerns directly with its employees.
[17] After receiving the email from Ms Briggs on 14 April 2011, Mr Burton “inferred” that Bristow Helicopters was not willing to enter into negotiations with the TWU for a proposed enterprise agreement. However, this application was not filed with FWA until 10 May 2011.
RELEVANT STATUTORY FRAMEWORK
437 Application for a protected action ballot order
Who may apply for a protected action ballot order
(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to FWA for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a multi-enterprise agreement.
Matters to be specified in application
(3) The application must specify:
(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
443 When FWA must make a protected action ballot order
(1) FWA must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) FWA is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2) FWA must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
(3) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
CONSIDERATION OF THE CASES PRESENTED BY THE PARTIES AND CONCLUSION
[18] Stripped back to its bare essentials, if the procedural requirements have been met, for the Tribunal to issue a Protected Action Ballot Order under the FW Act, it is necessary for the Tribunal to be satisfied that the TWU has been, and is, genuinely trying to reach an agreement with the Employer of the employees to be balloted “in relation to a proposed enterprise agreement”.
[19] For the Tribunal to be satisfied, the onus is upon the Applicant, in this case the TWU, to provide demonstrable evidence for the Tribunal to conclude that it has been and is genuinely trying to reach agreement.
[20] In this application, the TWU have provided evidence that on 31 January 2011, during a meeting with the Employer, the TWU advised that its members weren’t happy with negotiations on their common law contracts of employment. Specifically, the employees wanted clarifications as to their overtime payments, what their classifications were and that they wanted to “do an EBA” 6.
[21] The Employer followed up the concerns expressed by the TWU with the employees directly and replied to the Union that the employees did not want the TWU to bargain on their behalf. The TWU later provided the Employer with a petition appointing the TWU as a bargaining representative for the purposes of enterprise bargaining. The Employer responded to say that terms and conditions of the common law contracts with the employees had been concluded.
[22] On 5 April 2011, the TWU made it clear to the Employer that it wanted to bargain for an enterprise agreement which “spells out employment conditions and rates of pay, and their duties under each classification” 7. The TWU also stated that if the Employer does not want to bargain, it [The TWU] will make application to FWA. On receiving no answer by 14 April 2011, the TWU sought further clarification. On the same day, the Employer responded stating that, in their view, the employees were satisfied with the outcome of the discussion into the common law contracts but that it would maintain a dialogue with its employees. From this response, the TWU inferred that the Employer was not willing to enter into negotiations with the TWU on a proposed enterprise agreement.
[23] The TWU asserted in its opening submission:
“Further, we say that the TWU has been and is genuinely trying to reach an agreement with the respondent, however the respondent’s refusal to engage in negotiations for an enterprise agreement doesn’t alter the fact that genuine attempts by the TWU to reach agreement have actually occurred. If it please the Tribunal, to demonstrate that the TWU has genuinely tried to reach an agreement I’d like to call Mr Richard Burton as a witness.” 8
[24] In view of the Employer’s outline of submissions, I asked the TWU’s representative for her comments in relation to the Employer’s position that if the Union wanted to take protected industrial action, it should make application to the Tribunal for a majority support determination. The response was as follows:
“[PN21] MS PAPA: Our comments are very much so that we believe that, in regards to the making of a protected action ballot, there is no requirement underneath section 443 which requires bargaining to have commenced and we will be strongly relying upon the J.J. Richards Case [JJ Richards & Sons Pty Ltd v The Transport Workers’ Union[2010] FWAFB 9963 (“JJ Richards”)] which was handed down by the Full Bench in which the Full Bench stated that,
[PN22] “A proper application of the relevant principles of interpretation leads to a conclusion about an employee bargaining representative can genuinely try to seek an agreement within the meaning of section 443 in circumstances where the employer has refused to bargain for the agreement.”
[PN23] That is essentially what we will be relying on. In the respondent’s submissions which I’ve read through they have provided a lot of weight on the Ford case and essentially he states, no weight on the J.J. Richards case. Essentially what we are saying is that the J.J. Richards’ case is in a sense superseded that of the Ford and therefore we do not believe that we need to go through the majority support determination and/or a scope order.”
[25] As a result of these submissions and, for the purposes of this Reasons for Decision, I have characterised the TWU’s case in two parts. Firstly, that:
- The Tribunal can make Protected Action Ballot Order, notwithstanding that the Employer has refused to enter into bargaining with the TWU; and
- Irrespective of the Employer’s refusal to enter into bargaining negotiations, the TWU has been and is genuinely trying to reach agreement with the employees who are to be balloted in relation to a proposed enterprise agreement.
[26] Before addressing the two elements of the TWU submissions, it was not contested that I should approach my task in this application in the manner outlined in Total Marine Services v Maritime Union of Australia[2009] FWAFB 1240 (“Total Marine Services”) and endorsed by the majority of the Full Bench in JJ Richards 9which isas follows:
“[183] In Total Marine Services the concept of “genuinely trying to reach an agreement” was expressed in the following terms:
“[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.
[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. ....””
[27] I will now turn to the TWU’s proposition that the Tribunal can make a Protected Action Ballot Order, notwithstanding that the Employer has not entered into bargaining with the Union.
[28] While the JJ Richards decision is authority for the proposition that, in appropriate circumstances, a bargaining representative may be considered to be “genuinely trying to reach agreement” where the employer has refused to participate, I do not consider it authority for the view, inferred by the TWU, that an employer’s refusal to engage in bargaining following its proposal by the Union is, in and of itself, sufficient to establish that the Union has been “genuinely trying to reach agreement”.
[29] In my view, the TWU approach is tantamount to submitting that absence of action by the Employer to bargain, is evidence of action by the Union that it has been, and is, genuinely trying to reach agreement on a enterprise agreement. I am unable to agree with such an approach.
[30] Further, in my view, the majority in JJ Richards did not adopt such an approach as inferred by the TWU. The majority in JJ Richards stated:
“[64]... The first thing that an employee bargaining representative needs to do if it is to achieve an enterprise agreement is to secure the participation of the employer in bargaining. When the employer has not yet agreed to bargain, its efforts in that regard can properly be seen as part of genuinely trying to reach an enterprise agreement in accordance with the ordinary meaning of that expression.” (my emphasis)
[31] Simply put, if it is established that the Employer is refusing to bargain, that is only one factor in determining that the applicant, in this case the TWU, has been and is genuinely trying to reach agreement on a proposed enterprise agreement. If it is a fact that the Employer refuses to bargain, that does not relieve the TWU from the obligation to establish that it has been, and is, genuinely trying to reach agreement. The onus is on the applicant and not upon the action or inaction of the employer.
[32] For reasons outlined later in this Reasons for Decision, I am of the view that as the onus is upon the applicant to demonstrate to the Tribunal that it has been and is genuinely trying to reach agreement with the employer then, “the first thing [the applicant]... needs to do... is to secure the participation of the employer” 10 does not necessarily imply that this is the only step required. Bargaining should not be seen as a “lock - step” approach. The TWU, by adopting this “lock-step” approach, leaves to the action or inaction of the employer as determinative of the test in s.443 of the FW Act and excludes consideration of the applicant’s conduct.
[33] I now turn to the second arm of the TWU’s submission that, irrespective of the Employer’s refusal to bargain, the Union is and was genuinely trying to reach agreement in relation to a proposed enterprise agreement.
[34] With respect to the TWU’s claims, Mr Burton gave evidence as follows:
“I think you sent some emails to Bristow and I put it to you that you don’t really indicate in those emails apart from the fact that you want an EBA what the issues are, or what the claim is or what you’re negotiating for?---Well, I think I did. I summed it up also with a phone call to Margaret Briggs about what our actual intentions were, and not confuse the matter.
There seems to be no specific claims in relation to wages or conditions?---No, that’s correct. There was claims, well not actual claims, there was - to formulate an agreement, an enterprise agreement on what was required under the Act in respects to the disputes procedure, annual leave, classification structure, is what I put to her.
But nothing in relation to a log of claim?---Not in respect to wages because I believed that had been agreed.” 11
“You haven’t told Bristow in any detail as to what - - -?---Only respect to a phone conversation roughly outlining that we wanted to formulate an agreement, yeah.” 12 (my emphasis)
“Yes, but you could send them a log of claims or a draft agreement and just tell them what you want?---With all due respect it works as let’s sit down and start discussing that and let’s formulate a log of claims if there needs to be one, but in this case it was only to formalise what has already been agreed to in principle as far as I’m aware, into an enterprise agreement.” 13 (my emphasis)
“Sorry, what I wanted to clarify with yourself - - -?---Well, that’s normally the procedure. I would sit down, which I did, I went and met with the company to say we’ve got some issues, overtime, their wages. The company’s position was, to me, was that they were not aware of that and what would have normally happened, they would have come back and sat down with me again and that would have triggered me going up to Barrow Island and start to formulate all those logs of claims, but it just didn’t happen.”
Just to clarify, you would provide a log of claims after the employer had said yes, we want to bargain, is that correct?---That’s right.” 14
[35] The TWU submitted and provided evidence to the Tribunal of its desire to bargain for a proposed enterprise agreement. I accept that evidence. However, the TWU also has also submitted that this evidence is sufficient to meet “all the statutory requirements” 15 without setting out what its claims are (with maybe the exception on wages). I am unable to accept the assertion that it has met all the legislative requirements.
[36] The legislation provides that I must be satisfied that the TWU has been, and is genuinely trying to reach agreement, on a proposed enterprise agreement. The Tribunal did not have before it a log of claims, even of the most rudimentary nature, from which I could discern that it was genuinely trying to reach agreement upon a proposed enterprise agreement.
[37] For the Tribunal to be satisfied, I understand the legislation to mean that the applicant needs to provide the Tribunal with adequate information or proof of “genuinely trying to reach agreement” on a proposed enterprise agreement. The language of the legislation states that I have to be “satisfied”, not that I have to be absolutely certain. In this respect, the greater the vagueness of the information or evidence to the Tribunal, the less likely that it will be “satisfied” that the applicant has been, and is, genuinely trying to reach agreement.
[38] “Genuinely trying to reach agreement” is not a test in which any evidence would lead to a definitive satisfaction or otherwise - it has to be demonstrable and accepted.
[39] Importantly, the majority in JJ Richards did not depart from the statutory requirement that it is for the applicant, in these proceedings, to provide “acceptable” evidence to satisfy the Tribunal that it has been and is genuinely trying to reach agreement 16.
[40] The agreement referred to in s.443(1)(b) of the FW Act, which the TWU must be “genuinely trying to reach enterprised agreement” is stated in the opening words of s.443 of the FW Act, as a proposed enterprise agreement.
[41] The TWU specifically referred me to paragraph [55] in JJ Richards which states:
“[55] When a bargaining representative attempts to initiate bargaining, the proposed [enterprise] agreement may be “inchoate” to use the language of French J in Wesfarmers Premier Coal Limited v The Automotive Food Metals Engineering, Printing and Kindred Industries Union (No 2) 17 (Wesfarmers). In other words, a bargaining representative may propose that there be an enterprise agreement covering an employer and employees without identifying the terms of that agreement.” (my emphasis)
[42] The TWU, in specifically referring to paragraph [55] of JJ Richards inferred that it was unnecessary to formulate a proposed enterprise agreement.
[43] The adjective “inchoate” as used in paragraph [55] of JJ Richards is defined as “just begun and so not fully formed or developed”.
[44] However, in my view, for the Tribunal to be satisfied that, in this case, the TWU is genuinely trying to reach agreement on a proposed enterprise agreement, a precondition must be that there is some verifiable document, “inchoate” or otherwise, which will form the basis of a proposed enterprise agreement. Without such a document, the Tribunal would just be agreeing with the Applicant’s feelings, needs or desires.
[45] The idea or proposal by the TWU to have an enterprise agreement is essentially a statement of intention. However, putting forward the proposal of an enterprise agreement is not the same, in my view, as a proposed enterprise agreement which can be described as “inchoate” or not fully formed. Even for a proposed enterprise agreement not to be fully formed, it must have some existence, shape or sense, and not just be an idea or proposal in the mind of a TWU official or “roughly” 18 outlined in one telephone conversation with the Employer’s representative.
[46] Further, in my view, this approach is consistent with the context in which the adjective “inchoate” is used in paragraph [89] by the majority in JJ Richards when it stated:
“[89] At the time a party seeks to initiate bargaining and in the early stages of bargaining its claims and the agreement it proposes may, to use the language of French J in Wesfarmers, be “inchoate”. 19 However, that fact will not necessarily or even commonly be indicative of a bargaining representative not genuinely trying to reach an agreement.” (my emphasis)
[47] In an industrial context, it is readily understood that the shape or form of the claims and a proposed agreement will change, and become fully formed, through the process of bargaining - not that these claims do not exist in the first place, or only in the mind of a bargaining representative.
[48] Finally, the context of the use of the adjective “inchoate” is also readily apparent in paragraph [90] where the majority of the Full Bench in JJ Richards state:
“[90] This is not to say that a failure to articulate a major claim can never be a factor in favour of a finding that a bargaining representative is not “genuinely trying to reach an agreement”. Obviously, in particular circumstances such a failure could well support such a finding.”
[49] Again, I understand the majority in JJ Richards to be saying that claims are to be in existence, and the absence of a “major claim”, in particular circumstances, could support a finding that the applicant was not and is not genuinely trying to reach agreement with the employer.
[50] In JJ Richards the need to move beyond the idea of a proposed enterprise agreement to the “articulation” of claims is readily apparent. This need is particularly relevant where the lack of articulation of a major claim could support a finding that the applicant is not “genuinely trying to reach agreement”. The inference being that some, if not all, claims have been articulated.
[51] The Employer’s submissions and evidence went to four essential points.
[52] Firstly, the TWU is not entitled to a Protected Action Ballot Order as bargaining has not commenced. In this respect the Employer relies upon Ford Motor Company of Australia Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2009) 190 IR 300 (“Ford”).
[53] Secondly, the scheme of the FW Act provides that a bargaining order can be made to compel an employer that has refused to bargain to do so. Further, that s.237 of the FW Act allows FWA, upon application, to make a majority support determination where it is satisfied that a majority of employees want to bargain and the employer has not yet agreed to bargain. And, if made, a majority support determination triggers the requirement of an employer to give notice to employees of their representational rights.
[54] Thirdly, that the application is premature in that the TWU has not provided a log of claims or draft enterprise agreement and that it cannot be said that the Applicant is genuinely trying to reach an agreement with the employer of the employees to be balloted.
[55] Fourth, the TWU is not entitled to represent the industrial interests of all of the employees for whom it purports to represent in the application.
[56] Further, consistent with Ford, bargaining must be in place before protected industrial action can be organised or engaged in.
[57] The uncontested evidence of Mr Scherpenzeel related to the employment arrangements and discussions with the relevant employees, the Employer’s communication with the TWU, and importantly, at paragraph 42 of his written statement of evidence as follows:
“I said [at a meeting on 6 May 2011] that Bristow did not want to enter into enterprise bargaining because it would be time consuming and Bristow had only just agreed amendments to the employees’ common law employment contract.”
[58] While, pursuant to s.443(1)(b) of the FW Act, I was not satisfied that the TWU was, and is not, genuinely trying to reach agreement in relation to a proposed enterprise agreement for the employees, it is necessary to address Mr Scherpenzeel’s evidence should he think, as it was uncontested, it is a sound basis for the Employer to resist an enterprise agreement with the TWU.
[59] The Employer, in the first instance, need go no further than s.3 of the FW Act where it will find, under the General Objects of the Act, the following object:
“(f) achieving productivity and fairness through an emphasis on enterprise bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action.”
[60] Part 2-4 of the FW Act deals with enterprise agreements. The objects of Part 2-4 of the FW Act are, among others, to provide a “simple, flexible and fair framework that enables collective bargaining in good faith.”
[61] The simple fact is that the objects of the FW Act, in its entirety, and Part 2-4 dealing with enterprise agreement, is to enable collective instruments (called enterprise agreements) to be made between employees and their employer(s), irrespective of whether it is time consuming or that common law agreements are already in existence. Further, if a majority of employees want to bargain collectively, and an employer refuses to bargain, those employees, through their bargaining representative(s), can apply to FWA for a determination that there is majority support for collective bargaining. And if the employer still refuses to collectively bargain, the employee’s bargaining representative can seek a bargaining order requiring, the employer to bargain.
[62] For the most part, employers do not elongate the process. Rather, they engage with their employees and their representatives, and bargain in good faith. This state of affairs is borne out by the relatively few applications for majority support determinations and bargaining orders.
[63] I do not consider that the evidence of communications between the TWU and the Employer or the TWU’s efforts in compiling a petition is sufficient to satisfy the burden or onus on the Applicant to establish that it is and has been genuinely trying to reach agreement. No evidence was led by the TWU as to why the Union chose not to exercise its right to apply for a majority support determination, despite the Union possessing evidence (in the form of the petition) which most likely would have been considered sufficient to enable such a determination to issue. While the TWU may have considered it unnecessary to seek a majority support determination as a result of JJ Richards, the petition has been in existence from, at least, 15 March 2011. If a majority support determination is made, the bargaining begins. The TWU’s failure to seek such a determination does lead to a negative inference on its assertion that it genuinely trying to reach agreement.
[64] My approach to this application has been to apply the test in s.443 of the FW Act of whether the applicant has been, and is, genuinely trying to reach agreement on a proposed enterprise agreement. While the respective representatives appeared to engage in a struggle between Ford and JJ Richards. For my part, I have made my findings on the circumstances which existed and applied them to the statutory test of whether the TWU has been and is genuinely trying to reach agreement on a proposed enterprise agreement.
[65] Further and finally, the Employer raised the issue of whether the TWU is entitled to represent the industrial interests of all the employees referred to in the application. In view of my decision in relation to the application, it is not necessary that I address that issue.
[66] These are the reasons for my Decision to dismiss the application on 16 May 2011.
COMMISSIONER
Appearances:
Ms M. Papa for the Applicant
Mr A Drake-Brockman for the Respondent
Hearing details:
2011
Perth
16 May
1 Exhibit A1 - (b)
2 Exhibit A1 - Clause 10
3 Exhibit A1 - (c)
4 Exhibit A1 - (d)
5 Exhibit A1 - L
6 Exhibit A1 - paragraph 8
7 Exhibit A1 - (D)
8 PN9
9 JJ Richards at paragraph [84]
10 JJ Richards at paragraph 64
11 PN 39 - 41
12 PN46
13 PN61
14 PN70 - 71
15 PN7
16 JJ Richards - paragraph [62]
17 (2004) 138 IR 362 at para [70]
18 PN46
19 (2004) 138 IR 362 at para [71]
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