PR936566 PR936566 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170LW application for settlement of dispute Shop, Distributive and Allied Employees Association and Bunnings Building Supplies (C2003/4517) Wholesale and retail trade COMMISSIONER RICHARDS BRISBANE, 21 AUGUST 2003 Redundancy of truck drivers. DECISION [1] This matter arose by way of an application by the Shop Distributive and Allied Employees Association (the SDA \ the Applicant) pursuant to section 170LW of the Workplace Relations Act 1996 (Cth) (the Act). The role of the Commission in this regard was specified at clause 8.8 (headed "Grievance Procedure") of the BBC Hardware Retail Certified Agreement 2001 (the agreement). This agreement was certified pursuant to section 170LT of the Act between BBC Hardware Limited and the SDA and bound Bunnings Building Supplies Pty Ltd, trading as Bunnings Warehouse, (the company \ the Respondent) as a successor employer. [2] As is detailed below, the matter in dispute concerned the relationship of the agreement to the circumstances of four employees, who are members of the SDA, in respect of their desire to access redundancies following workforce changes. [3] In essence, the four employees were seeking to be terminated from their positions and to be paid their due severance payments. They contested the Respondent's proposal to redeploy them to other work (in other functions) specified in their requisite classifications. JURISDICTIONAL ISSUES [4] Clause 8.8 of the agreement relevantly states: "[...] (d) If the matter still cannot be resolved, either party to the grievance may refer the matter to the Australian Industrial Relations Commission for resolution by conciliation. If either party is unhappy with the conciliation they can refer the matter to arbitration." [5] The Commission's jurisdiction to arbitrate (albeit privately) in relation to the matter was not challenged. [6] Nor was it contested that the " matter " that was the subject of this application was a matter about the application of the agreement, consistent with the terms of section 170LW of the Act. [7] Notwithstanding this, the Commission remained concerned that the terms of the application may not be able to be readily characterised as a dispute about the application of the agreement. In the decision of Senior Deputy President Lacy in Maritime Union of Australia v Australian Plant Services Pty Ltd his Honour said: "An important limitation on the Commission's powers under s.170LW is the kind of dispute that may be subject to resolution by the Commission. Parliament has authorised the Commission to exercise powers under an agreement to settle disputes over the application of the agreement and, accordingly, its powers are limited to disputes of that kind. Therefore it is necessary for the Commission in each case where it is asked to deal with the matter arising under the disputes settling procedure in an agreement, to ascertain the character of the dispute that is before it in order to determine whether the matter is a dispute over the application of the agreement, and, importantly, the character of the dispute as distinguishable from the orders that may be made in settlement of the dispute" 1 (Emphasis added). [8] The original application in Form R47 read: "The matter in dispute arises from the decision of Bunnings Building Supplies Pty Ltd to outsource its delivery function. As a consequence of this decision, several truck drivers will become redundant. The Company is seeking to re-deploy these drivers to other functions within their respective stores, and the timber yard appears to be the most likely re-deployment destination. We have made clear to the Company our contention that, given the calling of the affected employees, such a re-deployment will not comprise acceptable alternative employment, and that the only acceptable outcome is termination on the basis of the notice and severance payments prescribed by the Agreement. The Company rejects our representations, and persists with the re-deployment process, having established deadlines for that purpose, the earliest of which is 21 July 2003. I furnish extracts from the Agreement, (attached) being sub clauses 7.1 and 7.13 which relate to termination, change and redundancy, sub clause 8.8 which comprises the prescribed grievance procedure. In view of the close proximity of the deadlines above mentioned, early attention to this Notification will be appreciated." [9] In the Commission's view, this Notice was somewhat amorphous and did not allow for the ready characterisation of the dispute for the Act's purposes. With the express consent of the Respondent, the application, in effect, was amended so that the dispute was characterised as a dispute over the application of clause 7 of the agreement. That is, the dispute concerned whether or not the redundancy provisions of the agreement had been correctly applied in respect of the outsourcing of the Respondent's delivery functions. [10] It was further agreed that in the event that the Commission found in favour of the Applicant, the Respondent would submit an application seeking exemption from the payment of severance payments, to the extent that is provided for, and for this purpose, if it was to arise, the Commission would rely upon the submissions as put to the Commission. [11] This approach, which satisfies the Commission's jurisdictional prerequisites, permits the Commission to examine initially the threshold and defined issue that is in dispute between the parties: should the redundancy provisions of the agreement apply in the circumstances of the aggrieved employees. [12] The matter was the subject of a conciliation conference on 10 July 2003, which failed to achieve a resolution. The SDA subsequently lodged an application for "arbitration" pursuant to section 170LW of the Act. [13] The Commission was informed subsequently that the Company undertook to refrain from effecting the proposed re-deployments of the four employees upon whose behalf the application was lodged until 1 September 2003, or until such earlier date whereupon this matter may be determined. [14] Notwithstanding the defined framework of the amended Notification, the Commission provides a summary of the submissions put to it in relation to the global concerns that reflected the original application. APPLICANT'S SUBMISSIONS IN SUMMARY [15] The SDA submitted that it has as members a number of the affected employees, all of whom are truck drivers, and who are identified as Cyril Lawrence Farmer , Troy Philip Bartsch , Gregory James Bottriell and Robert Glass (the employees). [16] The length of service of each of the employees is: Mr Farmer: 13 years and 9 months Mr Bartsch: 10 years and 11 months Mr Bottriell: 12 years and 7 months Mr Glass: 13 years and 4 months [17] The Applicant submitted that all of the employees were informed by the management of the Company that they are to be re-deployed to duties other than truck driving. [18] The Applicant contended that, "given the calling of the employees", in which they have been exclusively engaged since the commencement of their employment in each case, the intended re-deployments will not comprise acceptable alternative employment. [19] The Applicant generally submitted that the employees had been employed as drivers and any wider duties they had performed were merely incidental to this function. In essence, the employees are "dead set truckies" and not identifiable as anything else. In support of this contention the Applicant took the Commission to various documentation, including correspondence and a position description current in 1996 that, it was put, identified the employees as having been `drivers' as a definable mode of employment. [20] The Applicant argued that the only acceptable outcome, consequently, would be termination upon the basis of the notice and severance payments prescribed by the agreement. [21] Clause 7.13 (a) of the agreement constrains the Company to adherence to Termination Change and Redundancy (TCR) standards set by the Commission in the TCR Case 2 . One such "standard" comprises the following: "10. An employer, in a particular redundancy case, may make application to the Commission to have the general severance pay prescription varied if he/she obtains acceptable alternative employment for an employee." 3 [22] The Applicant submitted that a substantial body of decided cases has arisen from the application of the phrase "acceptable alternative employment". The Applicant submitted that "one prominent test of `acceptability' which has emerged is that of the alternative employment being of a like nature". [23] The Applicant submitted that a Full Bench of the Commission in a decision on appeal concerning an application by Derole Nominees Pty Ltd for exemption from severance payment prescriptions 4 , addressed the test of "acceptability" citing as one element of such a standard "the work being of like nature". [24] The Applicant further noted that in granting an application of Westland Meats Pty Ltd for exemption from severance payments 5 , then Commissioner Leary noted that arrangements achieved by the Company saw the employees continuing "to work at the same location, with the same employees performing the same or similar work". [25] The Applicant also submitted that in QCCI and Bradford 6 , Commissioner Brown in granting an application for and on behalf of Aere Services Pty Ltd for exemption from severance payment provisions quoted "Derole Nominees" with approval. The Commissioner noted that the test thus established had been met in the instant case and that amongst other elements, the work offered to the employee was identical to the work he had performed previously. [26] It was also put to the Commission that in determining an appeal in favour of Steppes Pty Ltd trading as Beaufort Hotel from a decision denying exemption from severance payments 7 , a Full Bench of the Commission (Giudice J, Polites SDP and Bacon C) noted that for all intents and purposes nothing had changed for the employees, other than their employer. [27] It was further submitted that in granting exemption from severance payments to Axbond Pty Ltd, the vendor of a hotel, Commissioner Gay noted that the employees concerned whose employment continued with the purchaser continued at their existing jobs and pay rates and that this factor, together with the continued permanency of the positions, comprised acceptable alternative employment 8 . [28] In the matter now before the Commission, the Applicant stated that the company has no prospect whatever of obtaining acceptable alternative employment for the employees because it has no positions of truck driver at its disposal. The cases as cited, it was claimed, clearly define as an essential ingredient of acceptable alternative employment that the employment "be of like nature". In the absence of such an ingredient, the Applicant contended that the company has no choice other than to honour the severance payment prescriptions of the agreement. [29] In view of this, the Applicant claimed that the company should make available to the employees the notice and severance payment prescriptions of the agreement. [30] In this regard, it was noted that clause 7.13(c) of the agreement defines "redundancy" as: "...Redundancy applies where BBC Hardware has made a decision that it no longer wishes the job the employee has been doing to be done by anyone." RESPONDENT'S SUBMISSIONS IN SUMMARY [31] The Respondent engaged contractors to perform the work of certain employees who were previously engaged to perform as drivers. The reason behind this change, according to the Respondent, was cost efficiency. [32] Notwithstanding this, the roles currently performed by the persons engaged in driving duties will continue to exist elsewhere in the Respondent's business. [33] Pursuant to the definition contained in the agreement, "redundancy" can only occur when a job ceases to exist. In the Respondent's submission, this accords with the generally accepted and understood meaning of the word in an employment context. [34] The Respondent requires the "job the employee has been doing" to be done by someone, they just do not require it to be done by the employees who are a party to this dispute. [35] It was the Respondent's submission that the employees in question are not "redundant" within the meaning of the agreement and consequently, are not entitled to receive redundancy payments. [36] The Respondent also contended that the redundancy clause in the agreement could be read as only being triggered in circumstances in which it sought no one to do the work of delivery driving. The Applicant opposed this interpretation of the clause. The Commission notes, in this regard, that the clause is derived from the TCR standards, cited above. [37] This aside, the Respondent further submitted that the employees are engaged under specific classifications contained in the agreement. [38] All but one of the employees are classified "Hardware Employee Grade 2", and the remaining employee is a "Grade 3". It was put to the Commission that both classifications are particularly broad and contain a range of duties, which is varied and non-exhaustive. [39] The Respondent submitted that in the context of the consideration of the "redundancy" or otherwise of the employees, the Commission should consider the Respondent's lawful authority under these classifications to direct the employees to perform certain duties. [40] The Respondent submitted that it is clearly within the realms of a "reasonable and lawful" direction of the Respondent to direct the employees to cease driving trucks and to perform duties in the yard, or in some other fashion contemplated by the classification. A failure by any employee to abide by such a direction might justifiably result in the termination of an employee's employment. Such termination, the Respondent argued, would not attract payments for "redundancy". [41] In all the circumstances, the Respondent submitted that it is clear that no entitlement to redundancy exists as no "redundancy" exists. [42] In the event that the Commission finds that the restructure of the transport services effected by the Respondent constitutes "redundancy", it was the Respondent's submission that they would be entitled to apply for an exemption from their obligations to make redundancy payments. [43] The basis for such exemption would be that the Respondent deployed the employees into "acceptable alternative employment" pursuant to Clause 51(e) of the TCR supplementary decision. [44] The Respondent submitted that the SDA rejected the submission that deployment of the employees to work in the yard at their respective places of employment constitutes acceptable alternative employment. The basis for the SDA's opposition, it was claimed, was that the employees have predominantly worked as delivery drivers and consequently, the nature of the work which they are performing, and are to perform, is so radically different as to make it an unacceptable alternative. [45] In opposing the deployment to the yards, the Respondent submitted that the SDA relies on numerous decisions of this Commission, and the Queensland Industrial Relations Commission (QIRC). The Respondent submitted that all of these decisions stem from, or make reference to, the decision of Derole Nominees Pty Ltd, which is cited at paragraph 11 of the SDA's outline of submissions alternative employment. That decision relevantly stated: "Yet, the use of the qualification `acceptable' is a clear indication that it is not any employment which complies but that which meets the relevant standard. In our opinion there are obvious elements of such a standard including the work being of a like nature ; the location not being unreasonably distant; the pay arrangements complying with award requirements. There will probably be others... The relevant aspects of the job must be examined objectively to determine whether the employment is acceptable." [46] The Respondent contended that the SDA's submissions addressed only one of the criteria contained in the non-exhaustive and inclusive list set out in Derole . The Respondent went on to argue it was not for an employee or their representative to select the criteria which most favours their case: the criteria outlined by the Full Bench in Derole were intended to be applied as a whole, rather than individually. [47] The Respondent submitted that this Commission should apply a similarly global approach to the facts of this case. [48] The Respondent's evidence led over the course of the proceedings demonstrated that the status quo of the employees remains largely undisturbed, except that they are no longer driving. They will continue to receive the same base salary (plus allowances), in the same location, during the same hours of work, on the same days of the week. And all of this will occur in the context of the same classification under their governing industrial agreement. [49] The Respondent submitted that it could not be denied that the loss of truck driving duties constitutes a dramatic change to the day-to-day duties of the employees. But the Respondent argued that that in itself did not make their deployment to the yard "unacceptable". [50] The Respondent submitted that the SDA placed some weight on representations made by members of management of the Respondent in the preceding 6 months. There were a number of letters exchanged between the SDA and the Respondent's management regarding the progress of the restructure. [51] The Respondent argued that there was no correspondence in evidence, nor any allegation, that the Respondent has at any time undertaken to pay redundancies to the employees. Whilst it is commonly discussed in letters sent to the SDA by the Respondent, nowhere can it be said that the Respondent agreed to make the employees represented by the SDA redundant. [52] In all the letters that are in evidence, the Respondent argued that the possibility of redundancy is raised only in circumstances where acceptable alternative employment cannot be located. It was the contention of the Respondent that such acceptable alternative employment is on offer to the employees, but was unreasonably refused. [53] At paragraph 23 of his witness statement, Mr Newman deposed that "[t]he reference to Delivery Drivers at the commencement of the letter [to him dated 20 March 2003] was a means by which Mr Ketter [of the SDA] could readily identify the team members concerned." He also stated that the term "Delivery Driver" was a term used in clause 3.2(d) of the agreement. [54] The Respondent also submitted that the drivers were not for classification purposes identifiable as `drivers', and the position description tended by the Applicant was of no substantive assistance to the Applicant's submissions. [55] The Respondent also submitted that the employees would enjoy greater job security by working within the wider terms of the classification in which they were employed. FINDING [56] In considering whether the redundancy provisions should have applied to the circumstances, the Commission needs to determine firstly whether or not a redundancy, per se, had taken place. [57] The first step in reaching such a determination is to ascertain whether or not the work carried out by the employees is work that is no longer to be carried out by the employer in the terms of clause 7.13(c) of the agreement, which defines "redundancy" as: "...Redundancy applies where BBC Hardware has made a decision that it no longer wishes the job the employee has been doing to be done by anyone." [58] What is the work that the Respondent no longer wishes to have carried out? [59] It is uncontested that the work that the Respondent has outsourced, and no-longer wishes to be carried out, is the work conducted by delivery drivers. [60] The second question the Commission needs to answer is whether or not the employees, whose work the company now no longer wishes to have carried out by anyone, were employed exclusively as delivery drivers. [61] The answer to this question requires an examination of the agreement, and to some extent the parent award. [62] The agreement that covers the employees specifies their classifications in the following terms: "3.2 Hardware Employee Grade 2 (a) Hardware Employee Grade 2 shall mean an employee engaged to perform a range of duties' associated with the operation of a store including (but are not limited to): * Delivery of goods * Customer service and assistance * Merchandising * Operation of fork lift * Stock replenishment * Receipt and despatch of goods * Clerical & administrative duties * Answer & respond to telephone enquiries * Security of property and merchandise * Selling of merchandise & customer relations * Using information technology to maximise * Display sound interpersonal & sales communication skills * Be responsible for the quality of their own Work * Operation of Point of Sale Terminals/cashier operations * Routine and minor maintenance, not requiring trade qualifications * Sawing and Machining of timber for customer's orders/stock (not trade qualified) * Display good knowledge of product lines carried/available in own and adjacent Departments * Applying loss prevention procedures to minimise shrinkage & maximise store profitability * General cleaning within department but not including cleaning of toilets, window exteriors or washing of floors, except for the removal of occasional spillages (b) An employee required to have a forklift licence shall have all costs associated with the maintenance of such licence borne by BBC Hardware. (c) The employee shall usually be the subject of general supervision, but shall be willing and competent, to the extent required by BBC Hardware, to work without direct supervision and to make decisions on an independent basis. (d) Hardware Employee Grade 2 positions include: * Salesperson * Order person * Cashier * Store person * Clerical Assistant * Security person * Yard person * Meet and Greet person * Delivery Driver [...]" [63] Three of the employees who are the subject to this application are all employed at the Grade 2 level, one at the Grade 3 level (which includes a supervisory component). [64] The Commission has noted submissions by the Respondent that the employees affected in the context of this application were employees who were working in Grades 2 and 3 of their classification, with the exception of some minor incidences to date, had worked only in delivery driver functions within their classifications. Similarly, the Commission has noted that the delivery drivers require appropriate licensing under the Queensland State Transport Act . Essentially, this evidence was unchallenged in the proceedings. [65] The principal distinction between the positions of the Applicant and the Respondent turns on whether or not, by outsourcing the delivery driver function, those former drivers were consequently made redundant. [66] In the Commission's view this would have been the case if the employees employed in carrying out delivery driving functions had been employed in a distinct, separate and identifiable classification. In such circumstances, it is possible that the work carried out by the employer would not have been required to be done any longer (putting aside whether or not it was to be done by "anyone"). [67] This is not the case in the circumstances currently before the Commission. [68] The employees employed under the agreement are employed under classifications that are not limited to one function. They specify that a person in such a classification (be it either Grade 2 or 3) be classified for purposes of carrying out a range of functions, as specified above. [69] There would appear to be some history of multi-tasking in the classification structures as it applies to the hardware sector. [70] The Commission notes that the award, under Definitions at clause 5.2, specifies a similar range of functions within "Hardware Employee Grade II", which states: "5.2 `Hardware Employee Grade II' shall mean an employee engaged to perform a range of duties associated with the operation of a store including (but are not limited to): · " Routine and minor maintenance, not requiring trade qualifications; · Security of property and merchandise; · Customer Service and assistance; · Selling of merchandise and customer relations; · Operation of point of sale terminals/cashier operations; · Stock replenishment; · Receipt and dispatch of goods; · Clerical and administrative duties; · Answer and respond to telephone enquiries; · Operation of a fork-lift; · Delivery of goods; · Display good knowledge of product lines carried/available in own and adjacent departments; · General cleaning within department but not including cleaning of toilets, windows [...]; · Sawing and Machining of timber for customer's orders\stock (not using trade qualified); · Using information technology to maximise sales; · Applying loss prevention procedures to minimise shrinkage and maximise store profitability; · Be responsible for the quality of their own work; · Display sound interpersonal and communication skills; · Merchandising. The employee shall usually be the subject of general supervision, but shall be willing and competent, to the extent required by the employer, to work without direct supervision and to make decisions on an independent basis. Grade 11 positions include: - Salesperson - level 1; - Cashier; - Clerical Assistant; - Reserve stock hand; - Yardperson; - Order person; - Storeperson; - Security person." [71] The classifications in the agreement and the award have marked similarities, and demonstrate that employees under either instrument have for some time been required to work within classifications that demonstrably involves multi-tasking. Nothing was submitted to the Commission as to whether the classifications in each case were competency based. [72] In his witness statement, Mr Justin Newman, Employee Relations Manager for Bunnings Building Supplies, deposed that the classifications in the agreement were consistent with those of the parent award 9 , which stated relevantly at clause 4.1, which is headed `Objectives of this agreement': "iv) employees willingly accepting total flexibility of jobs and duties throughout the store, subject only to the training received, individual skills or abilities to perform particular tasks." [73] Neither the Respondent nor the Applicant submitted that the agreement was a comprehensive agreement, and as such displaced the award. That is, the agreement, it was submitted, displaced the award only to the extent that there was an inconsistency between the two instruments. [74] The Commission appreciates that the cessation of delivery driving, by way of the Respondent's outsourcing initiative, which is limited to that sub-set of the Respondent's stores where it will have beneficial effects, will generate a significant change in the work of the affected drivers. They have been drivers for a long period of time. They have come to perceive themselves to be drivers, exclusively. And they have only carried out other duties within their classification on an incidental basis in the past. [75] Indeed, on the evidence before the Commission, there has not been a great deal of cross-function work within the multi-tasked classification: "I'm sorry, I apologise for that. At paragraph 14 - and I'll read this out to you, just for your edification - Mr Kaust said: Notwithstanding the broad nature of the duties under grades 2 and 3, it is conceded that the employees were primarily occupied as drivers although they did perform some duties incidental to driving from time to time. Do you agree with that statement?---Yes. How frequently would these drivers be called upon to fulfil the roles of salesperson, cashier, clerical assistant, yard person, delivery driver, order person, storeperson, security person, meet and greet person - you'd recognise all of those roles as being a component in clause 3.2 of the agreement, wouldn't you?---Yes. How frequently would these drivers be required to fulfil those roles?---I couldn't say how frequently. From time to time they might be called upon to perform aspects or certain parts of those positions though. They would be very incidental though, wouldn't they?---Oh, that's correct. And how frequently would they be called upon to perform the role of senior salesperson/store clerk?---Again, not frequently. Very incidentally, would you agree?---Yes. When we look at these roles in 3.2 and 3.3, does the company regard all of those roles as totally interchangeable?---I'm uncertain as what you mean by interchangeable. Well, would it be reasonable to say that on any given day of the week or at the commencement of any given week, a grade 2 or grade 3 employee would go to work not knowing what functions they were going to be required to do for that week?---No. So they'd know of a certainty what functions they were going to be required to perform, wouldn't they?---Yes, they may - yes. So in other words, they are consigned to circumscribed duties, aren't they?---From time to time they are given duties to perform, yes. How frequently would these variations occur?---It could vary between team members. Some team members would perform a significant part of their time in a particular duty; others may perform a variety. Would it be reasonable to expect say a yardperson to be taken off stream in that area and put on a checkout?---Yes. Not frequently. Does it happen?---Yes, it does. But not frequently?---It may not occur frequently but it certainly does occur. Would it be usual to find a security person seconded to perform sales?---It could be. But it doesn't happen in practice, does it?---Yes, it could. Yes, but does it?---Yes. You know that for a fact?---I couldn't give you an individual instance, but certainly if there was a shortage of staff by way of example it could be necessary for a security person to perform sales functions, yes. But that would be only on an incidental basis, wouldn't it?---In most instances it would be on an incidental basis, yes." 10 [76] However, this cannot derogate from the fact they are not drivers within a separate classification, but are delivery drivers within a classification that is a composite of a range of functions. In such circumstances, the Respondent is entitled to require its employees to work within the full range of the classification in which they are employed, subject to adequate training. [77] This prescription is elemental to the agreement that binds the Applicant and the Respondent. It is a prescription that is clearly derivative of the award. [78] While the Respondent will no longer be carrying out any work in relation to the delivery driver functions as defined in either Grades II or III under the agreement, it may, consequently, redeploy those former drivers to other functions under the classifications under which they were employed. [79] Employees who are the beneficiaries of entitlements under certified agreements and awards are also bound to fulfil their obligations under the same instruments. [80] While it is possible some may have been reserving their view pending this decision, the Commission notes that only a relatively small number of the total number of delivery drivers affected by the Respondent's out-sourcing initiative have sought termination for reason of redundancy. Most have accepted, it would seem, redeployment within the terms of their classification. [81] Nonetheless, the change in duties will require some adjustment on the part of the four or so delivery drivers who were the subject of this application. It is understood that these former delivery drivers will be redeployed as yardmen, and work across a range of functions in their classification. The Commission understands, that given the circumstances, the transition will be underpinned by the provision of relevant training as necessary. [82] It is not the Commission's view, consequently, that the initiative to outsource or contract out the delivery driver functions at a number of the Respondent's stores gives rise to a redundancy situation. CONCLUSION [83] The Commission has determined, pursuant to the application under section 170LW of the Act, that the Respondent has not acted contrary to clause 7.13(c) of the agreement, and consequently, that the outsourcing of the delivery driver functions does not give rise to a redundancy. BY THE COMMISSION: COMMISSIONER Appearances: Gillespie L for the Applicant Dwyer J for the Respondent Place and date of hearing: Brisbane; 15 August 2003 Printed by authority of the Commonwealth Government Printer <Price code D> 1 AIRC, 3 September 2001 [PR908236] 2 Termination, Change and Redundancy Case (1984) 9 IR 115 3 Ibid at 135 4 AIRC, 12 September 1990 [Print J4414] 5 AIRC, 19 September 1995 [Print M5479] 6 QIRC, 2001 166QGIG264 7 AIRC, 22 September 1998 [Print Q6010] 8 AIRC, 5 February 1993 [Print K6537] 9 BBC Hardware Limited Retail Agreement 1995 (a consent award made on 16 November 1995) AW769933 10 Transcript at PN86-107, Cross-examination of Mr Justin Newman