Transport Workers' Union of Australia v Toll Transport Pty Ltd
[2012] FWA 4822
•6 JUNE 2012
[2012] FWA 4822 |
|
DECISION |
Fair Work Act 2009
s.739 - Application for Fair Work Australia to deal with a dispute in accordance with a Dispute Settlement Procedure
Transport Workers' Union of Australia
v
Toll Transport Pty Ltd
(C2012/3031)
COMMISSIONER CAMBRIDGE | SYDNEY, 6 JUNE 2012 |
Dispute settlement procedure - jurisdictional objection - interpretation of provisions of enterprise agreement - proper characterisation of dispute - nature of issue of contest alleged to not be a dispute for the purposes of the terms contained in the dispute settlement procedure clause - alleged absence of dispute to enliven jurisdiction - jurisdictional objection dismissed.
[1] This matter involves unusual circumstances concerning publicised allegations that members of the Transport Workers’ Union of Australia (TWU), who had travelled to Los Angeles, California (LA), physically threatened and intimidated staff working for the USA operations of their Australian employer as part of a Unionising campaign undertaken by the International Brotherhood of Teamsters (Teamsters Union).
[2] This Decision is made in respect of a jurisdictional objection taken against an application made pursuant to section 739 of the Fair Work Act 2009, (the Act), for Fair Work Australia (FWA) to deal with a dispute in accordance with a Dispute Settlement Procedure (DSP). The application was lodged at Sydney on 14 March 2012. The application was made by the TWU and taken against Toll Transport Pty Ltd (Toll).
[3] The application was made by way of reference to a DSP found at Clause 17 of the Toll Group and Transport Workers Union Fair Work Agreement 2011-2013 (the Agreement). The application identified that the catalyst for the dispute was a press release issued by Toll on 9 March 2012 which implied that unnamed members of the TWU were part of a pro-union crowd which was involved in an incident in LA during which physically threatening behaviour, intimidation and bulling was reported to have occurred (the LA incident). The application also referred to subsequent correspondence exchanged between the TWU and Toll on 12 and 13 March which inter alia, confirmed that Toll was conducting a disciplinary investigation into the conduct of 3 named employees who were TWU Delegates (the Delegates) and which apparently occurred at or in connection with the LA incident.
[4] The matter was the subject of unsuccessful conciliation conducted by Hamberger SDP. The matter has proceeded to arbitration which involved an initial Hearing held on 22 May 2012 to deal with a jurisdictional objection raised by Toll. At the Hearing regarding jurisdiction Toll was represented by Mr T Saunders a barrister instructed by Freehills lawyers, and the TWU was represented by Mr O Fagir.
[5] A witness statement of Damian Sloan, Toll’s Senior Legal Counsel, Workplace Relations and Safety was tendered by Mr Saunders and admitted as evidence without objection and without any need for cross-examination. Toll also adduced evidence in the form of copies of recent communications between the Parties. The evidence provided by the TWU was contained in two witness statements, one made by Michael Aird, the Assistant State Secretary of the TWU and the other made by Euan Scott-Bell, a TWU Delegate employed by Toll. Mr Aird and Mr Scott-Bell were not required for cross-examination.
Background
[6] On 9 March 2012, Christopher Whitefield, Toll’s Group Manager, Media & Research, sent an e-mail to the LA correspondent for Australian Associated Press (AAP), which included a press release, a copy of the press release was also sent to the Melbourne bureau of AAP. The press release is reproduced below except for the background material which is not directly relevant to this matter:
“Toll Group's US employees physically threatened in union campaign
Toll Group is disturbed by reports of physically threatening behaviour against US-based Toll staff at their LA workplace. The behaviour reportedly included a pro-union crowd also trying to physically force their way onto Toll property.
The threats and intimidation by a group apparently including 'masked men' occurred Thursday at Toll's Willmington drayage (port haulage) yard in LA.
The group included an Australian Transport Workers Union (TWU) official and three Australian-based Toll employees who are union site delegates from Sydney, Australia. It also included supporters of the US Teamsters union.
There are reports of people in this crowd donning masks, physically blocking access to the site, trying to forcibly enter the site, and abusing and intimidating Toll staff and their family members.
Employees and site security report being abused and physically threatened by a large group of men, primarily made up of the Teamster union representatives but also including the four Australians. Some members of the group were apparently wearing masks from 90's horror movie Scream.
"Bullying and threatening Toll employees goes completely against Toll's values. It is completely irresponsible behaviour and the company will not condone it from people who work for us or people who claim to represent our workforce," said Toll Group's official spokesman, Corporate Affairs General Manager Andrew Ethell.
"The company calls on the Teamsters Union and the TWU to denounce this behaviour immediately and to ensure it never occurs again.
"No one deserves to be physically threatened, especially in the workplace. The company will act to protect the safety and security of our employees.
"We pride ourselves on being able to provide a safe place for our staff to work, and to have union supporters conspire to threaten our staff and try to force their way onto Toll property is showing absolute disregard for the health and safety of the people they're supposedly wishing to represent.
"We work with responsible unions in many countries where employees have chosen to be represented by them. The company however will not support irresponsible and threatening behaviour.
"Toll has behaved openly and honestly in this union campaign and expects anyone campaigning on behalf of a union to do the same. We are not campaigning against the Teamsters: we believe it is up to employees to make their own decision in the upcoming ballot," Mr Ethell concluded.
The TWU's 'solidarity mission' to the US has seen the TWU official and three Australian-based Toll employees arrive in LA to join the Teamsters in accusing Toll of unfair labor practices, ahead of an impending US National Labor Relations Board (NLRB) ballot to decide if the site will be unionised. To date, all of the Teamsters accusations have been rejected by the NLRB or have been withdrawn.
Toll is adding extra security guards to protect their US employees and sites at this time.” 1
[7] The TWU complained about the press release in an e-mail communication from Mr Aird to Toll on 12 March which is reproduced below:
“We refer to your allegations in a press release issued by Toll against three senior toll Australian workplace leaders, your toll drivers in Los Angeles and myself.
The allegations are completely false. However to enable us to deal with them can you please provide us with the evidence you relied upon to make your attack.
Your three Australian workplace leaders are quite distressed at the conduct of Toll management in the United States and have asked for the opportunity to meet with appropriate senior Toll management to discuss their concerns. Certainly from what was observed in the US your claim that Toll is not campaigning against the Teamsters and your US employees rights to become union appears at best problematic. We would, as just one example, ask how you can make this comment whilst we were advised that you facilitated, or were at least aware, that Toll management arranged for two New Jersey drivers to sit in the lunch room of the Los Angeles site for around one week to encourage drivers not to become Union. As your [sic] aware the same access was not provided to the Australian drivers despite numerous requests including to yourself.
In regard to the allegations against the Australian workplace leaders and myself we advise that we seek to have these matters addressed through the dispute procedure in the Toll TWU National Agreement (clause 17). The first step in the circumstances of this dispute should be for Toll to arrange the appropriate manager for us (us being myself and the workplace leaders) to meet with. We advise that despite seeking to address some of the concerns in regard to yours and Tolls attacks through the dispute procedure we reserve our right to seek legal redress if the comments are defamatory and or unlawful.
We look forward to your urgent reply.” 2
[8] On the following day, 13 March, Mr Sloan from Toll responded to the TWU in the following terms:
“I am writing in response to your email to Andrew Ethell of 12 March 2012.
At the outset, Toll denies that there was anything false, defamatory or unlawful in the press release it issued on Friday evening. Toll also denies that it has engaged in any inappropriate conduct in relation to the treatment of its US employees or the Teamsters.
In any event, whatever "concerns" Euan, Mark and Jim may have, they are still expected to behave in an appropriate manner at a Toll site, whether in Australia or overseas. As "senior Toll Australian workplace leaders" they would be aware that any misconduct or other inappropriate behaviour in which they engaged would be in breach of their contractual and other obligations to Toll and in breach of Toll's code of ethics. They should know that the fact that they engaged in such conduct overseas would provide them with no defence, and would not shield them from disciplinary action resulting from any misconduct.
The conduct of Euan, Mark and Jim is being investigated. If and when Toll decides to take action against any or all of them, they will be provided with the relevant evidence.
Finally, we note that you have purported to invoke of [sic] clause 17 of the Fair Work Agreement. Toll does not regard that clause as having application in the present circumstances, which fall outside the meaning of a "Dispute" as defined in the Fair Work Agreement.” 3
[9] Subsequently Toll conducted a disciplinary investigation into the “behaviour of the Delegates whilst they were in the US” and relevantly particularised matters in the following extract from a letter to the TWU dated 30 March:
“Behaviour of the Delegates
Toll is continuing its investigation into the behaviour of the Delegates whilst they were in the US. Our investigation has included a review of video, photographic and documentary evidence from the US. That evidence suggests that the Delegates may have engaged in inappropriate behaviour, including:
1. they lied to Toll staff that they had authority from Toll management to access Toll's sites at Wilmington and San Pedro;
2. they repeatedly attempted to gain access to those sites, despite having been told that they have no authority to enter;
3. they did so in circumstances that could reasonably be regarded as intimidating;
4. they wrongfully accessed the Wilmington site on 6 March 2012, having been told the previous day they were not to enter without approval;
5. they therefore failed to follow Toll site procedures; and
6. they have taken part in other campaign activity which was intimidating, including through being part of a group containing people in skull masks.
In considering this alleged behaviour, Toll is mindful of the fact that the Delegates clearly travelled to the US for a purpose. Any behaviour in which the delegates engaged, and the extent to which they should be held accountable, will be viewed in this context.
Toll proposes to meet with the Delegates so that these matters can be put to them for a response. As previously advised, during these meetings the Delegates will have access to the evidence which supports the allegations. The Delegates of course will be entitled to have present with them a support person of their choosing. The relevant management representatives will liaise with the Delegates to arrange these meetings as soon as possible.” 4
[10] Toll concluded its investigation into the behaviour of the Delegates and “decided not to take any action against them.” 5
The Jurisdictional Objection
[11] Toll has asserted that FWA does not have jurisdiction to deal with this matter as the press release of 9 March does not satisfy the definition of “Dispute” as set out in clause 3 of the Agreement. Mr Saunders for Toll submitted that a proper characterisation of the matter raised by the application did not satisfy the relevant terms of the Agreement so that the jurisdiction of FWA was not enlivened.
[12] The DSP in the Agreement commences with the following words: “The Parties agree that any Dispute must be dealt with in the following manner:...”. The capitalisation of the word “Dispute” logically directs the reader to the definition of “Dispute” set out in clause 3 which is in the following terms:
“Dispute means any dispute or grievance that arises at the workplace between an Employee or Employees and Toll, or between the Union and Toll, about the interpretation or application of this Agreement or in relation to any matters pertaining to the relationship between Toll and an Employee (or Employees), or that between Toll and the Union, including but not limited to a dispute about any condition of employment or industrial matter.”
[13] Mr Saunders submitted that the press release of 9 March and any contest arising about the accuracy of information contained in that release could not be said to have arisen at the workplace and therefore the press release was a subject that did not satisfy the definition of Dispute contained in the Agreement. Mr Saunders submitted that the press release dealt with events in the USA which were not connected to the Australian workplace and were consequently outside of the definition of “Dispute” contained in the Agreement.
[14] Mr Saunders also submitted that the press release was not a subject which pertained to the employment relationship therefore the jurisdiction of FWA could not be enlivened by an issue that did not pertain to the employment relationship. Mr Saunders submitted that the proper characterisation of the dispute was directed at the accuracy or otherwise of the information contained in the press release of 9 March 2012. Mr Saunders said that the accuracy or otherwise of the press release was a dispute of an academic, political, social or managerial nature and it did not pertain to the relationship between employer and employee(s).
[15] Mr Saunders conceded that that aspect of the matter which related to the disciplinary investigation into the Delegates behaviour in the US was properly an employment issue which could be the subject of the operation of the DSP and s.739 of the Act. However he said that the application was without jurisdiction because it was established upon the accuracy or otherwise of the press release and that release could not be construed to have arisen at the workplace nor did it pertain to the employment relationship.
[16] In support of the jurisdictional objection Mr Saunders referred to a number of Authorities including: the High Court Judgment in Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; the Full Bench Decision of the Australian Industrial Relations Commission in United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board - PR973884 [2006] AIRC 575; and the Full Bench Decision of the Australian Industrial Relations Commission in GridComm Pty Ltd and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Communications Division [2007] AIRCFB 827.
The Applicant’s Case
[17] As applicant the TWU opposed the jurisdictional objection and submitted that the jurisdictional objection involved a microscopic focus upon a particular part of the dispute notification. Mr Fagir for the TWU submitted that the jurisdictional objection adopted a narrow and pedantic interpretation which was an approach that should be rejected.
[18] Mr Fagir relied upon various authorities including the Decision of Lewin C in Skurnik v Australian Broadcasting Corporation[2011] FWA 8069. Mr Fagir said that the dispute involved a number of different aspects giving rise to complaint about Toll’s conduct including but not limited to the press release of 9 March. Mr Fagir submitted that the correct characterisation of the dispute would need to include all the surrounding circumstances including the aspects of the dispute that developed after it had commenced together with regard for the relief sought.
[19] Mr Fagir rejected the assertion that the dispute did not arise at the workplace. Mr Fagir said that it was irrelevant that the press release was sent to AAP in LA because it was something that Toll sought to promote in the media in Australia. According to Mr Fagir the press release undeniably raised issues of direct impact upon Toll employees and the TWU in the context of the Australian workplace. Mr Fagir submitted that the dispute was properly comprehended by the Agreement definition of “Dispute”.
[20] Mr Fagir further submitted that it was wrong for Toll to suggest that the dispute, even if it was somehow confined to the press release, did not pertain to the relationship between employer and employee. Mr Fagir said that the public comments made by Toll about 3 of its employees and the TWU has had direct impact on the employees as evidenced by the imputations made against the character of Mr Scott-Bell. Mr Fagir submitted that it was clear that the conduct of Toll had serious implications for both the relationship between it and at least 3 of its employees and the relationship between Toll and the TWU.
[21] Mr Fagir said that the conduct of Toll whereby it issued a public statement before it had investigated the serious allegations that were involved raised dispute about the procedure that Toll utilises in cases of potential misconduct. According to Mr Fagir, a public attack made by the employer, in this case Toll, against its employees and their Union in the absence of evidence and before any investigation was clearly an industrial matter.
[22] Mr Fagir also submitted that the dispute could not be characterised as an academic or political exercise. Mr Fagir said that there were real practical consequences for the Delegates and the Union. Mr Fagir submitted that the jurisdictional objection was without merit and should be rejected.
Consideration
[23] The jurisdictional objection that has been raised by Toll is a curious approach. Toll has accepted that the disciplinary investigation into the behaviour of the Delegates in the US is a legitimate industrial matter which would be capable of due process via the DSP contained in the Agreement. However, Toll asserts that the press release of 9 March, which described the subject matter of the disciplinary investigation, cannot be a subject dealt with by the DSP.
[24] Consequently and as was confirmed during the Hearing, if the jurisdictional objection was upheld the TWU could simply make a fresh dispute application which nominated the subject matter as being the disciplinary investigation and the press release would logically be identified as the starting point for the investigation. The accuracy or otherwise of the press release of 9 March would become the subject of analysis by FWA albeit via a dispute application established by reference to the disciplinary investigation rather than the press release. Therefore there appears to be some futility associated with advancing a jurisdictional objection which is in all likelihood, to have no practical benefit other than perhaps create some delay before the accuracy or otherwise of the press release is examined and determined albeit via a different dispute application.
Interpretation of the words “arises at the workplace” contained in the Agreement
[25] The first aspect of the jurisdictional objection advanced by Toll involves an interpretation of the definition of “Dispute” as contained in clause 3 of the Agreement. The approach to interpretation of industrial instruments is not a matter of strict statutory interpretation. Although the words in an industrial instrument may be given their plain literal meaning, it is well established that often it is appropriate to adopt a contextual and purposive approach broadly based upon authority established by a body of decision-making which is well summarised in a Decision of a Full Bench of FWA in,Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Silcar Pty Ltd [2011] FWAFB 2555.
[26] The interpretation of the definition of “Dispute” in clause 3 of the Agreement focused upon the words “arises at the workplace”. It is clear that these words should not be interpreted literally so as to confine a Dispute to some issue that must involve an event that physically occurred at a Toll property. Toll asserted that because the events subject of the press release occurred outside of Australia it lacked sufficient connection to Toll’s Australian workplace and therefore did not arise “at the workplace”.
[27] The interpretation of the words “arises at the workplace” as urged by counsel for Toll when tested against some hypothetical circumstances provided for some interesting analysis. It seems clear that, as was exampled during the Hearing, if Toll employees engaged in some inappropriate conduct outside of work, say at a G-8 protest in LA it would be a matter that would be unlikely to satisfy the words in the definition “at the workplace”. Similarly, it was conceded by Mr Saunders that outside of work activities by Toll employees hypothetically at a picket line at a Qantas site, would not be something “at Toll’s workplace and therefore could not be within jurisdiction.” 6
[28] Consequently it would seem that the “behaviour of the Delegates whilst they were in the US” would not ordinarily be something that arose “at the workplace”. These activities would, in isolation, be matters outside the definition of “Dispute” in the Agreement and beyond jurisdiction for an application taken under s.739 of the Act. On one view it would seem that the activities of the Delegates and Mr Aird whilst in the US (the US activities), could not be sufficiently connected with the employment relationship so as to allow Toll to take any action against the Delegates in the context of the Act or any other Australian workplace law as contemplated by the definition of workplace law contained in s.12 of the Act.
[29] However, three particular factors, peculiar to the circumstances of this case, operate in combination to bring the US activities within jurisdiction of Australian workplace law and to also satisfy the words “arises at the workplace” as contained in the definition of “Dispute” in clause 3 of the Agreement.
[30] Firstly, the US activities have strong direct corporate connection. Although the Toll Group of companies originated in Newcastle, New South Wales, it now operates globally and inter alia, encompasses both Australian and US operations. If the US activities had not involved a Toll Group operation there would have been little prospect or legitimacy for Toll to raise any issue. 7
[31] Secondly, the press release of 9 March clearly states that Australian-based employees of Toll were part of a pro-union crowd which engaged in physically threatening behaviour, intimidation and other reprehensible behaviour. The Australians were not named in the press release but the inescapable inference made in the release is that one TWU Official and 3 Delegates from Australia participated in the reprehensible behaviour. Consequently the press release itself introduced the necessary connection to the Australian workplace and the predictable publicity which followed in the Australian media enlivened and disseminated a matter of contest between an employer and its employees and their representatives. Thus the nature of the press release and the resultant publicity gave rise to a dispute or grievance at the workplace in Australia.
[32] Thirdly, Toll’s decision to undertake a disciplinary investigation into the US activities was communicated to the TWU before the s.739 application was made. The subject matter of the application encompassed the press release and the subsequent communications which included advice that Toll was contemplating taking disciplinary action against the Delegates. One particular aspect of the dispute which might not of itself be sufficiently connected to the Australian workplace cannot be excised, and treated in isolation, so that it would somehow invalidate the other elements of the dispute including those clearly identified in the application and recognized as legitimate basis for jurisdiction.
Pertaining to the employment relationship
[33] The second aspect of Toll’s jurisdictional objection related to the assertion that the dispute did not pertain to the employment relationship. Mr Saunders suggested that the matters in contest involved a dispute of an academic, political, social or managerial nature and did not pertain to the relationship between employers and employees. This proposition would have considerable force and validity if applied to the US activities per se. In the absence of: (a) any corporate employer connection; and (b) a press release inferring serious misbehaviour of employees and their representatives; and (c) a disciplinary investigation, the US activities may be properly construed as political activity which should have been treated as if the activities occurred at a G-8 protest.
[34] However, as stated above, a dispute cannot be properly characterised by contemplation of one particular element alone. The US activities, if considered in isolation, may not satisfy the notion of being something that was pertaining to the employment relationship. Although the corporate connection with the US activities may be sufficient to establish an employment related character. The other elements of the issues of contest are matters which seem to clearly pertain to the employment relationship.
[35] The press release of 9 March makes serious public insinuations of misbehaviour against employees of Toll and their representative. Although the insinuations concern behaviour out of work hours and in a foreign country the public statement and its ramifications are matters that manifest in the context of the employment relationship. The suggestion made by Toll that the accuracy or otherwise of the press release would not be a matter pertaining to the employment relationship fails to recognise that public statements made by either employer or employee particularly if they include criticism of the other party, will usually pertain to the employment relationship. For example, one could hypothetically consider that if an employee of Toll publicly denigrated Toll management, Toll would want capacity to deal with such conduct as being employment related.
[36] Further, that element of the dispute involving Toll’s disciplinary investigation of the Delegates is intrinsically connected to the employment relationship.
Conclusion
[37] This Decision has been made in respect of a jurisdictional objection advanced by the respondent employer, Toll. In summary Toll has asserted that the accurate characterisation of the issues in contest are beyond jurisdiction because the matters do not satisfy the definition of “Dispute” contained in the Agreement and or the matters do not pertain to the employment relationship.
[38] Upon analysis the basis for the jurisdictional objection cannot be sustained. The assertion that the subject matter of the dispute does not arise at the workplace applies an overly restrictive characterisation of the dispute. The dispute contains a number of elements and even if one of those elements did not satisfy the relevant DSP terminology the true characterisation of the dispute must be assessed by having regard for all other components so that a complete picture is obtained.
[39] Once the complete picture of the dispute between the TWU, the Delegates and Toll is disclosed and examined it becomes clear that the matters of contest satisfy the practical interpretation that should be given to the words “arises at the workplace” appearing in the Agreement. Further, notwithstanding that an element of the dispute involved activities in a foreign country there is no basis to conclude that the dispute, when properly characterised, deals with a matter or matters not pertaining to the employment relationship.
[40] In summary, the dispute when properly characterised, satisfies the relevant DSP provisions contained in the Agreement and concerns subject matter which pertains to the employment relationship.
[41] There are some further aspects of this matter that should be mentioned.
[42] The disciplinary investigation conducted by Toll into the allegations of serious misbehaviour made against the Delegates was completed and Toll decided not to take any action against the Delegates. Importantly, Toll did not make any statement about the basis for its decision to take no further action against the Delegates. Consequently the spectre of the Delegates and Mr Aird as masked men physically threatening and intimidating others has neither been proven nor dispelled. In addition, the prospect emerges that Toll may have decided to take no action against the Delegates for some reason or reasons other than that the allegations of serious misbehaviour were not proven to Toll’s satisfaction.
[43] There is often a robust public exchange between parties involved in industrial contests. Unions and employers frequently make strong public accusations against one another in the “cut and thrust” of industrial relations. However, anybody who publicises serious allegations of misbehaviour possibly involving criminality has an ethical and perhaps legal obligation to only make such allegations upon a properly established basis that gives rise to reasonable and genuinely held belief. It is therefore somewhat troubling that Toll would issue the press release of 9 March before rather than after conducting an investigation into the behaviour of the Delegates in the US.
[44] Further, the use of physical threats, intimidation, bullying and harassment must be condemned in the strongest possible terms. There is no place for such misbehaviour even in the often highly charged circumstances of industrial disputation. Consequently any allegations of such misbehaviour should be treated very seriously and properly resolved. It appears that the basis upon which Toll decided to take no further action against the Delegates leaves these serious allegations in something of an indeterminate hiatus.
[45] There is an obligation on Toll to properly finalise this matter. If its investigation did not provide sufficient basis to support the allegations it should be prepared to say so. Toll is a major Australian company and as a respected corporate citizen it has a responsibility to admit mistake if that is what has occurred.
[46] Alternatively, if Toll decided that no further action could have been taken against the Delegates because of some other reason then such an explanation should be made. Interestingly, if the basis for any decision to take no further action involved a perceived absence of jurisdiction then the findings made in this Decision about jurisdiction extending to the activities of the TWU and the Delegates in a foreign country may assist.
[47] For the reasons stated above the jurisdictional objection is dismissed. Further proceedings shall be arranged upon the written request of either party.
COMMISSIONER
Appearances:
Mr O. Fagir, on behalf of the Transport Workers’ Union of Australia.
Mr T. Saunders, counsel, on behalf of Toll Transport Pty Ltd.
Hearing details:
2012.
Sydney:
May, 22.
1 Exhibit 1, attachment DS-1.
2 Exhibit 1, attachment DS-2.
3 Exhibit 1, attachment DS-3.
4 Exhibit 1, attachment DS-4.
5 Exhibit 1, paragraph 9.
6 Transcript of proceedings (22/05/12) @ PN269.
7 See transcript of proceedings (22/05/12) @ PN257-258.
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