CFMEU and AMWU v Fluor Daniel Power & Maintenance Services [1996] IRCA 510

DECISION NO:510/96 CATCHWORDS

INDUSTRIAL LAW - alleged unlawful TERMINATION OF EMPLOYMENT- VALID REASON - OPERATIONAL REQUIREMENTS - REDUNDANCY - PROCEDURAL FAIRNESS - CONDUCT AND PERFORMANCE - employees selected for redundancy by subjective and objective criteria - consultation process between unions and employer - extent of duty to afford opportunity to comment on selection for termination.

Industrial Relations Act 1988 (Cth) ss170DC, 170DE, 170EA

Kenefick v Australian Submarine Corporation Pty Ltd (No. 2)(1996) 65 IR 366,

CFMEU VI96/1426 VI96/1427 VI96/1428 VI96/1493 VI96/1494 VI96/1495 VI96/1723

Before: MURPHY JR Place: MELBOURNE Dates of hearing: 7, 8, & 9 OCTOBER 1996 Date of judgment: 10 OCTOBER 1996

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI96/1426 VI96/1427 VI96/1428 VI96/1493 VI96/1494 VI96/1495 VI96/1723 BETWEEN:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and OTHERS AND AUSTRALIAN MISCELLANEOUS WORKERS UNION and OTHERS Applicants

AND

FLUOR DANIEL POWER & MAINTENANCE SERVICES Respondent

BEFORE: MURPHY JR PLACE: MELBOURNE DATE: 10 OCTOBER 1996 MINUTES OF ORDERS THE COURT ORDERS THAT: 1. The applications are dismissed.

Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI96/1426 VI96/1427 VI96/1428 VI96/1493 VI96/1494 VI96/1495 VI96/1723 BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and OTHERS AND AUSTRALIAN MISCELLANEOUS WORKERS UNION and OTHERS Applicants AND

FLUOR DANIEL POWER & MAINTENANCE SERVICES Respondent

BEFORE: MURPHY JR PLACE: MELBOURNE DATE: 10 OCTOBER 1996 REASONS FOR DECISION Delivered ex tempore - revised from the transcript The AMWU and the CFMEU have issued proceedings on behalf of the each of the seven individual applicants who seek reinstatement to their positions with the respondent. The respondent has a maintenance contract with Loy Yang Power whereby it provides maintenance services to the power station. These proceedings arise out of a decision by the respondent in February this year to declare nineteen of its 110 person workforce redundant. The central issues in the proceedings were whether the respondent had a valid reason for the redundancy for each of the seven individual applicants, and whether the respondent, if it did have a valid reason to terminate the applicants' employment, had complied with its obligations to accord procedural fairness. Background. The contractual arrangement between the respondent and the power station is that the respondent is paid for the provision of labour and other services to the power station. During 1995 it appeared to the site manager of the respondent, Mr Morrow, that the power station was in danger of substantially over-running its 1995-96 financial year budget given the level at which it had been utilising the respondent's services in the first few months of the year. Mr Morrow discussed the matter with Mr Young, the engineering manager at Loy Yang Power, who advised that the customer was indeed over budget. Mr Morrow was told that Loy Yang Power was undertaking a budget review early in the new year. Concerned that the result of the customer's review may have an impact on the respondent, he called a meeting of the four unions on site. The four shop stewards were told that the customer was having a review. The question was asked whether it would lead to redundancies. Mr Morrow advised that the respondent was seeking to avoid redundancies. He was advised that given what had happened on an earlier occasion, any retrenchments would be resisted. Further meetings with the shop stewards were held on 19 and 30 January where the matter was again referred to. The customer finally clarified its expected requirements of the respondent in mid February. It reviewed the projects it expected to undertake for the balance of the financial year. The respondent was also advised at that time that the customer faced a 5% budget cut in the next financial year. The respondent then produced a breakdown of the numbers and classifications of employees (Exhibit R3) that would be required to do the work that the customer expected for the balance of the financial year. The profile indicated that the respondent had nineteen too many employees to meet the customer's budget forecast. The respondent formed the view that redundancies would be necessary. The respondent decided that it had to consult the unions in relation to the proposed redundancies. The respondent commences the EBA consultation period. The relevant unions and the respondent are the signatories to a certified enterprise agreement ("EBA") that provides for consultations before terminations on the grounds of redundancy. The whole document was not in evidence but Clause 5.7.1 provides for discussions between the respondent and the employees and their unions over a ten working day period. It provides that the discussions shall cover the reasons for the proposed terminations, measures to avoid or minimise the terminations, and measures to mitigate the adverse effects. The respondent is required to notify the employees and their unions of the number of categories of employees likely to be affected. The respondent sought to discharge its obligations to consult under the EBA by advising the state secretaries of the unions, the local organisers, and the shop stewards by letter dated 20 February (Exhibit R5). Mr Morrow said that the employees were also copied with the same letter. A meeting was called that day between Mr Morrow and Mr Ryan, the human resources and industrial relations manager, and the four shop stewards. At that meeting Mr Morrow advised the unions of the position in relation to its budget, the fact that the respondent had a surplus of labour given the customer's requirements for the future, and the respondent's proposals to reduce its workforce. He tendered a number of documents to the meeting. Mr Morrow also indicated to the meeting what the respondent proposed to do to select the employees for retrenchment. He tabled a list of selection criteria (Exhibit R6). It proposed that employees would be assessed against the criteria in order to chose those to be terminated in each category. Mr Morrow tendered the selection criteria and invited the shop stewards present to comment on it. The reaction was very negative. Mr Morrow advised the shop stewards that "this is the start of the ten day consultation period and we are giving them all the information we can up front and the reasons why there are redundancies.... and we wanted their input to make it as smooth and painless a process as possible". On the same day, Mr Morrow sought volunteers for redundancy from the workforce (Exhibit R4). None were forthcoming. The shop stewards called a meeting of the employees on site. Industrial action occurred. The men went on strike and returned to work on 22 February. A further meeting occurred on 22 February. Mr Morrow's evidence was that, again, the shop stewards rejected the proposed selection criteria, or any cooperation in the process of selecting the proposed retrenchees. At that meeting the shop stewards proposed some alternative courses of action for the respondent in order to avoid any retrenchments. These included job sharing, a four day week, leave without pay, and self-managed work groups. The shop stewards also sought to bargain for severance pay entitlements over and above those in the EBA to resolve what, at that stage, was a highly inflamed industrial landscape. The respondent would not offer the money sought. Mr Morrow advised the shop stewards that the respondent was following the consultation process in the EBA. He advised that the respondent would consider the suggestions that had been made for an alternative to retrenchments. Further, Mr Morrow advised that as the shop stewards were not prepared to contribute to the selection process, the respondent would proceed to assess all employees pursuant to the criteria. The selection process. The selection process that Mr Morrow conveyed to the shop stewards was that the respondent's supervisors and superintendents would assess each employee in each category against eight criteria. The employees would then be ranked, and the lowest ranked retrenched until the particular classification had been reduced to the level required for the respondent's operations. The respondent wanted to retain the employees it assessed as the best performers. When the criteria were rejected by the shop stewards at the meetings on 20 and 22 February, the respondent proceeded to assess the seventy employees that were in the categories affected by the proposed reductions in the workforce. Mr Morrow's and Mr Ryan's role at the meeting of the nine supervisors and three superintendents, was to facilitate the appraisal of each employee against each criterion. Mr Morrow's evidence was that he told those involved to be as fair as possible and not let personalities become involved. Only supervisors or superintendents who had had direct involvement with the employee were involved for each employee. Where there were differences, Mr Morrow required a consensus to be reached. Mr Ryan's evidence was that he was keen to ensure that only matters that could be properly backed up were used in the assessment. On 23 February the respondent finalised those aspects of the relative assessment of the employees that required the involvement of the supervisors and superintendents. Mr Ryan was then to complete the matters that required reference to records. These were the three criteria: absenteeism, time-keeping and skills. Mr Ryan ascertained that there was nothing adverse against any of the employees on the absenteeism and time-keeping criteria. All employees were given the maximum score for these two criteria. The skills criterion was completed by reference to a skills matrix held by the respondent listing the various tickets held by all employees. On 27 February, Mr Morrow wrote to the secretaries of the unions reviewing the position (Exhibit R8). The letter noted that the company was discussing alternatives to the proposed workforce reductions. The letter stated that agreement had not been achieved on the proposals under discussion. The letter went on: "As for the selection criteria and process, the union representatives have rejected participation in this process. Accordingly, the company is finalising its intended list of employees to be affected by the reductions and will table this list with the union representative for any comment." A further meeting with the shop stewards occurred on 27 February. At that meeting, again alternatives to redundancy were canvassed. In response to the suggestions put by the shop stewards, the respondent proposed to roll back a career path reclassification scheme that had recently been put in place under the EBA. This would have reduced the number of redundancies by five. The shop stewards said it was not acceptable. The respondent also advised that the other suggestions made would not be feasible. The shop stewards were told that it would be too difficult to manage the respondent's business under the proposals and some of the proposals involving job sharing had financial implications that the respondent did not believe were justified. The shop stewards were advised that the proposed list of employees to be retrenched was almost finalised and that the respondent wished to table it as part of the EBA consultation process. The shop stewards indicated that the union organisers should be involved. The employees went on strike again on that day. On 28 February a meeting took place at the CFMEU office in Morwell. Mr Addison from the AMWU, and two organisers from other unions, as well the shop stewards and Messrs Morrow and Ryan were present. This was the first meeting at which organisers for the unions had been involved, although Mr Ryan had a telephone conversation with Mr Addison on 22 February at which the redundancy process and the selection criteria were briefly discussed. At the meeting, Mr Addison, in colourful language, rejected the selection criteria that the respondent had been using. In particular, he indicated that those elements of it that relied on subjective assessments were not satisfactory to the unions. The response of Mr Morrow and Mr Ryan was that the criteria had been on the table since 20 February and the unions had not made any contribution up to that point. Mr Morrow agreed to take on board various issues that the union representatives had raised. Mr Morrow insisted, however, on tabling the list of proposed retrenchments (Exhibit R9) as part of the ten day consultation process. When the respondent tabled the list the temperature in the meeting reached boiling point and the respondent's representatives were invited, in no uncertain terms, to leave. Later that day a shop steward, Mr Hart, suggested that the employees named be advised about the matter as they arrived for work the next morning. The following morning the employees on the list were first addressed by Mr Hart, and then by Mr Morrow. Mr Morrow's evidence was: "I opened the meeting by explaining again the reasons why the redundancies had to occur. I explained that we have a selection criteria where the union people had not taken any input, had not given any input to it. That we had gone through the selection criteria as thoroughly as possible and as far as I was concerned that was a fair process." He went on to say, "I used the term 'they had missed the cut'". He also said he told them, "if anyone had any issues with the scores that we were quite happy to talk to them at any time through the rest of the consultation period." There were angry and emotional scenes at the meeting. The consensus was that the men had been "shafted" by the respondent. One of the applicants, Mr Benbow, challenged Mr Morrow to tell him which supervisor had nominated him for retrenchment. He found Mr Morrow's reply unsatisfactory. Mr Morrow and Mr Ryan did not remain at the meeting for long. Shortly after it, Mr Hart sought some additional entitlements for the retrenched employees. These were a $500 training allowance, and waiver of a one-year service requirement for two employees' entitlements to a severance payment. Mr Morrow agreed. Mr Hart also advised Mr Morrow that the men had indicated that they did not want to remain for the balance of the ten day consultation period. They wanted to be paid out immediately and to leave now. Mr Hart also told Mr Morrow that the men had sought their individual scores. Mr Morrow agreed to provide the individual scores but said it would take some time. A couple of hours later he had a brief discussion with a number of men about their individual scores when he handed them to them. He indicated to those who queried the ranking that he could not discuss the actual scores because he had not scored the individual but if they wanted to pursue the matter in detail, that could be done. On 29 February, each of the men were sent a letter confirming that they had been retrenched (Exhibit R10). The letter also said: "Your Union has been consulted about this matter and your Union Representatives are available for further advice. We are available to further discuss your selection assessment at any time, should you require it. Furthermore, (the respondent) will consider you for future employment opportunities. Additionally we will attempt to identify alternative employment opportunities." The individual applicants. Mr Alesi is one of six fitters retrenched out of thirty fitters. He has a good work record. He heard that he was on the list in the pub. He remembers being told he could work out the balance of the ten days. He did not ask for his score or seek to review it. He thought it would not be profitable; the company had made a decision. One reason was that if he succeeded, someone else would go. He did not think they would change their mind. After being told, he wanted to get out. Mr McColl is a qualified plumber and sheetmetal worker. He was one of two sheetmetal workers and the only one retrenched. He had had his differences with the preferred worker. That other person had, however, been an acting supervisor. He had a good idea that he was on the list once the categories were announced by the respondent. He was angry with Mr Morrow for failing to level with him at an earlier stage in the process because he had concluded that it was most unlikely that the respondent would get rid of the other sheetmetal worker, Mr Delaney. He wanted to be told early and get paid out but Mr Morrow insisted that no decision had been made. Mr McColl was telephoned by Mr Morrow on 29 February and told he "did not make the cut". He denied being told he could review the score, although Mr Morrow gave evidence that he did. Mr McColl said that if he had screamed, Mr Delaney would have lost his job. He thought it would be a waste of time to take up the opportunity of the review. Mr Cianti was one of six trades assistants out of fifteen who were retrenched. He missed the meeting on 29 February as he went to the wrong floor but found out later from the shop steward. He had a good work record. He sought advice from Mr Morrow as to how the score sheet worked. He was devastated by what happened and took advantage of a counsellor provided. Once he was advised by Mr Morrow how the selection system worked, he reached the conclusion that there was "no sense in arguing". He agreed that his supervisor would have been in a position to make an assessment of him according to the criteria. Mr Crimmins is a highly credentialled boiler cleaner and crane driver. He had every relevant ticket and his work performance had not been criticised. He discussed his score with Mr Morrow and when told that the foreman had been involved, he had indicated that the foreman was not in a position to assess his skills because he did not actually supervise his work. He was unable to recall Mr Morrow saying the score could be reviewed. He thought he was more skilled than those the respondent kept but was of the view that he would be unable to change their mind if they had already picked him. He admitted that he could have taken Mr Morrow to task on the skills criterion on an objective basis but did not. He agreed that on 29 February the men were given a choice to remain at work for the next few days or go now. Mr Wilson was a boiler cleaner. He too has a good work record and put in a commitment to the respondent. He knew about a selection process, and had been told by his supervisor at one stage that the respondent "was always keeping an eye on you". He recalls general support amongst employees for measures, such as a shorter working week, to avoid retrenchments. He recalls obtaining his score sheet and having a brief conversation with Mr Morrow. He could not recall Mr Morrow offering him the opportunity to take up his score in more detail. He said that he had a fatalistic attitude to the respondent after the meeting of 29 February. He felt he had been targeted and it was a final decision unlikely to be changed. He "wore it" and said he was not "going to fight the issue as someone else would get the boot". Mr Down was also a very experienced boiler cleaner. He was angry that he had been selected. His memory of events however was vague. He sought his score sheet from Mr Morrow but, apart from describing it in blunt language, did not discuss it. He believed that he had been hard done by as a result of a particular foreman but did concede that the foreman would be in a position to assess him. He did not read the letter of 29 February advising him of the opportunity to discuss the assessment. Mr Benbow was a trades assistant who presented as very aggrieved at his treatment by the respondent. He had never been criticised for his performance. On the contrary in January had been advised by his supervisor that he was happy with his performance. He had been the recipient of an award for a workplace suggestion. He suggested to Mr Morrow that he had been "shafted" by a supervisor when he was placed on the list. He said he had a very good attendance and safety record and found the scores that he had been given a slur. He sought to discuss them with Mr Morrow but Mr Morrow was unable to satisfactorily explain who did his assessment. He had decided that if he was one of the employees selected he would take the respondent for "unfair dismissal" because he was "pretty sure the company wouldn't want to listen to me". He denied ever being told of an opportunity to change the score. Mr Rod Hart also gave evidence for the applicants. At that time he was a rigger and shop steward, and now he is a union official. His evidence detailed the industrial struggle as the shop stewards and officials sought to resist the retrenchments. He accepted the thrust of Mr Morrow's evidence about the reaction of the shop stewards to the selection criteria and indeed the proposal for the retrenchments. The main concern was to avoid retrenchments. He was trying to address what he saw as a short-term problem. He found the respondent unyielding to union suggestions that alternatives be implemented. It was a "fairly fatalistic company". It was insisting that the consultation process and period proceed and that the names be tabled. He maintained that the shop stewards had little experience of criteria and were not capable of dealing with the issues raised. He was critical of the respondent for tabling the proposed names in the consultation period as it was obvious that the men would then want to leave. He denied that Mr Morrow indicated that selected employees had an opportunity to review their selection. I was impressed by the evidence of the applicants in their individual testimony. They were angry, aggrieved and fatalistic at what had happened to them. Collectively, they were the innocent victims of the chill winds of change that had affected their region. They were all obviously good workers because the respondent has extensively utilised their services on a casual basis since March this year. The issue before the Court is whether the respondent was acting lawfully in February. Did the respondent have a valid reason to terminate the applicants? The respondent carries the onus of proof that it had a valid reason in the sense of a sound, defensible or justifiable reason to terminate the applicants' employment. The respondent asserted that its operational requirements were such that, in the face of the budget cut by Loy Yang Power, it made a reasoned decision to reduce its labour force by nineteen employees, including the seven applicants. In addition to the nineteen employees, four supervisors were retrenched. It maintained that, in accordance with the EBA, it consulted the unions and its employees. It considered alternatives to retrenchment, but formed the view that this course of action was not a solution to its operational requirements as it saw them. It then chose the applicants by reasonable selection criteria that it applied in a fair manner. Further, it gave each of the applicants the opportunity to review their selection assessment. The applicants, through their representative Mr Addison, challenged each part of the respondent's process. The first issue is whether there was in reality a need for the respondent to take the action it did in response to the budget cut by the customer. It was suggested that lesser alternatives, as proposed by the unions, should have been adopted. Mr Addison particularly pointed to the evidence that, in late March, the customer suddenly found another substantial injection of funds for minor capital works projects utilising the respondent's services. Had the respondent held off for a short period, the redundancies would have been avoided. Hindsight is a marvellous thing, but the Court must assess the respondent's actions as at February this year. The issue is whether what the respondent did was a logical response to its operational requirements. Was there a causal connection between the decision to retrench and the operational requirements that it balance its labour force with the expected demand for its services? The evidence of Mr Young, from Loy Yang Power, makes it clear that in February the possibility of a transfer of certain capital moneys from another section of the customer to the power station was not known to him. That action occurred only after a company-wide review in early March. He was not told until late March. Thus the respondent could not, on the evidence, have expected this additional demand for its services from the customer. Next it was said that the respondent gave no genuine consideration to the alternatives raised by the unions. It just went through the motions. The evidence does not sustain this submission. The Court cannot remake the respondent's decision. The evidence however shows that the respondent had substantial grounds for its conclusion that the proposals made by the unions were not consistent with proper management of its business. Mr Young supported Mr Morrow on this issue. Further, the unions themselves rejected certain counter-proposals made by the respondent. The significant thing is that I am satisfied that the respondent, as it was bound to do under the EBA, did discuss with the unions and consider alternatives to retrenchment. It was not, as alleged by Mr Addison, engaged in a process that sought to further casualise its workforce, although that again, with the benefit of hindsight, may have been an outcome. The next attack on the validity of the decision was the issue of the selection criteria. It is appropriate to deal with it in combination with the question of the application of s170DC of the Industrial Relations Act ("the Act") to the circumstances of this case. The decision Kenefick v Australian Submarine Corporation Pty Ltd (No. 2)(1996) 65 IR 366, is authority for the proposition that the employer must discharge its onus of proof that it had a valid reason to terminate the employment of each applicant. Here the respondent says that each of the applicants were ranked by it lower than the necessary number of employees it needed for its operation. They each "missed the cut". Mr Addison argued that the respondent had failed to engage in a proper selection process. He argued that it had breached its obligation to consult with the unions and the employees about the process, and then it had failed to give those selected an opportunity to challenge their selection. It must first be emphasised that the provisions of the Act are to be applied in a practical way in actual workplaces. In this workplace, as in all others, the employer and employees have mutual duties and obligations. The EBA is a document that both industrial parties have committed themselves and their members to. The EBA clearly contemplates that redundancies may occur. It imposes a mechanism to seek to avert them and mitigate their adverse effects. The respondent sought to invoke the period of consultation provided in the EBA. The unions did engage in the consultation. There was much use of colourful language. In breach of the EBA, there were three strikes. Mr Addison was upset that the selection criteria were tabled and discussed before he became involved. He maintained, as did Mr Hart, that under the EBA union officials, rather than shop stewards, had to be involved. There is little substance in that particular matter. All correspondence was sent to the unions secretaries, organisers and shop stewards. The selection process that led to the selection of each of the applicants must be looked at as a whole and in the context of the consultation process. By the time Mr Addison became involved, the shop stewards had categorically rejected any participation in any form of a selection process. They were not going to get involved in "chopping off their members heads". This is reflected in Mr Morrow's letter of 27 February (Exhibit R8). The respondent, however, had proceeded to select and wished to table its list of "proposed" names as part of the ten day process. When the names were tendered, the industrial situation was very raw. The time for cool heads to discuss a process that might allay Mr Addison's concerns had passed. The respondent sought to address individual grievances with the process by the offer made by Mr Morrow to allow individuals to review their scores. This offer is confirmed in the letter of 29 February to each of the applicants (Exhibit R10). The men, however, just wanted to leave. Again, in hindsight, all parties may have dealt with the matter differently. Mr Hart conceded as much. It must be remembered that this was not the first round of redundancies that had occurred, and the respondent had just emerged from judicial scrutiny of its process on the earlier occasion. It is not surprising that the respondent was, to the annoyance of the unions, doing it by what it understood was the book. This is where the provisions of the EBA assume significance. Both the respondent, and the unions and their members, had a duty to co-operate in the process of consultation envisaged in Clause 5.7 of the EBA. Consultation does not always envisage agreement. The position was, however, that, once the shop stewards rejected the respondent's suggested criteria and process, the respondent was not deprived of its right to engage in that process. The selection process did involve both objective and selective factors. That did not make it fatally flawed, provided it was applied fairly. This is why the respondent offered, in its discussions with the unions and in its letters of 27 and 29 February (Exhibits R8 and R10), the opportunity to consult about the matter. This is why the list was described as "proposed". These offers, which I am satisfied were made, gave validity to the process which led to the list of proposed retrenchees. The respondent did not act in a capricious way in making the selections it did. It sought to act fairly and to give an opportunity for individuals to review the application of the criteria on an individual basis. It was engaged in a process of collective consultation with the unions and individual consultation with the named employees. That process remained on foot when all the employees named sought to be paid out three days short of the ten day period. The respondent thus, as a result of a reasoned process, reached a defensible or justifiable conclusion that the applicants, along with twelve others, had to be terminated for its operational reasons. The respondent has discharged its onus of proof on this issue. S170DE of the Act has not been breached. Application of s170DC of the Act. The respondent's process is relevant to the issue of s170DC of the Act. The applicants were selected on the basis of their comparative worth to the respondent. All employees were found to be performing to an adequate level. To the extent that it can be said that they were selected because of their comparative worth, they were selected on the basis of their "conduct and performance". Unlike Kenefick (above), there was no list of "concerns" here. There was no list of volunteers. Procedural fairness can be described as the provision of a "fair go" in a particular set of circumstances. Usually procedural fairness means a fair go or an opportunity to respond to some allegations. Here, any opportunity to respond was not to "allegations". It was to respond to the basis of selection of each employee. That is a significant difference. That opportunity, if it is required by Kenefick (above), has been accorded here. The opportunity was accorded because the consultation period and process in the EBA remained uncompleted. The opportunity to discuss the selection was provided by Mr Morrow's invitation at the meeting of 29 February, and his meetings with some of the individual applicants. It was confirmed in the letters to each of the applicants of that date. Each of the applicants have provided their own account as to why they took the opportunity to respond, to the extent they each did, to the selection criteria. Their individual reasons, while they are entitled to be respected and are sincerely held, do not impugn the respondent's process or the opportunity it afforded. In the context of this EBA, and what happened in this workplace, the substantive, but not necessarily formal, requirements of s170DC of the Act have been met. S170DC of the Act has not been breached. The applicants have not made out any breach of the Act, so each of the applications must be dismissed. I certify that this and the preceding seventeen (17) pages are a true copy of the reasons for decision of Judicial Registrar Murphy as recorded in the transcript and revised by the Judicial Registrar.