T10445 and T10695
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 National Union of Workers, Tasmanian Branch and Northern Group Training Limited t/a NGT Tasmania
Industrial dispute - breach of award - meal allowances - required notice when overtime worked - requirement to work overtime - order issued REASONS FOR DECISION [1] On 19 September 2002 and 3 February 2003 the National Union of Workers, Tasmanian Branch ("the applicant"), applied to the President, pursuant to s.29(1) of the Industrial Relations Act 1984 ("the Act"), for hearings before a Commissioner in respect of industrial disputes with Northern Group Training Limited t/a NGT Tasmania arising out of alleged breaches of the Wholesale Trades Award. [2] On 24 September 2002, the President convened a hearing in respect of the first application, T10445 of 2002, at the Workers Rehabilitation & Compensation Tribunal rooms, Launceston before myself, to commence on Monday 28 October 2002 at 2.30 pm. On that date the matter was adjourned into conference in an attempt to settle the dispute through conciliation. That was unsuccessful. The hearing then proceeded, joined, with the consent of the parties, with T10695 of 2003, on 17 and 18 February 2003, at the Supreme Court in Launceston. [3] Mr P Richardson, with Mr D Strickland and Ms K Wood appeared on behalf of the applicant ("the union") and Mr J Glisson appeared on behalf of the respondent ("NGT"). BACKGROUND [4] The disputes concern a number of employees of NGT who were engaged as trainees. They were placed with a host employer, Statewide Independent Wholesalers ("Statewide") at their dry goods store at Prospect. They spent the entire period of their traineeships at that site. [5] Section 3 of the Act defines as employee as including a trainee as defined under the Vocational Education and Training Act 1984. [6] The parties agreed that the relevant award is the Wholesale Trades Award ("the award") of the Tasmanian Industrial Commission. [7] It is alleged that the employer has failed to abide by the terms and conditions of the award, in that it has failed to pay the trainees the meal allowance provided for at clause 5(d) Meal Breaks and Tea Money - of Part IV - Hours of Work, Penalty Payments, Shift Work and Overtime - of the award. [8] Clause 5(d) says:
[9] It was agreed that this decision would deal only with overtime worked after 8.30 pm, ie more than two hours after the usual weekday finishing time (which, in this case was 6.30 pm) and that the question of whether the meal allowance should apply for work finishing after 7.30 pm would be dealt with by way of a separate application under section 43 of the Act, ie, an interpretation of the clause by the President of the Tasmanian Industrial Commission. Such application was to be made by NGT no later than 19 February 2003. As at the date of this decision, that application has yet to be heard. [10] At issue is whether or not the employees were notified in advance of the requirement to work overtime. Also at issue is whether, if the overtime was not compulsory, the meal allowance is payable. [11] The union claims that the employees were not given notice on any of the days claimed for, whereas NGT claims that they were given advance notice on a number of occasions. NGT also claims that because the trainees could not be compelled to work overtime, then they were not "employees required to work overtime" and therefore are not entitled to payment of meal allowances. [12] The Commission, in this case, is being asked to find whether or not, in all of the circumstances, trainees who worked beyond 8.30 pm are entitled to be paid a meal allowance. EVIDENCE [13] The evidence-in-chief of all but one of the witnesses for the union were presented by way of witness statements. Witness statements were provided by: [14] Jason Beck1, Mark Connell2, Craig Maxfield3, Graham Viney,4 Lee Bucknell,5 Brett Oxford,6 Michael Cherdron,7 (trainees), and John Gardner,8 an employee of Statewide and NUW delegate. Mr Patrick Bowerman, another trainee, gave oral evidence-in-chief. [15] The respondent relied upon statutory declarations provided by Phillip Leslie Clarke, Afternoon Shift Manager, Statewide, Prospect,9and Steven Harold Badkin, Day Shift 2 Area Manager, Stateside, Prospect.10 [16] Mr Clarke and Mr Badkin were not available for cross-examination. Mr Richardson, for the applicant, questioned whether such evidence should be admitted into the proceedings. After hearing the parties on that question I ruled that the evidence would be admitted, but would be given less weight than evidence subject to cross-examination. [17] The evidence of the trainees was that they were employed by NGT until the completion of their traineeship following which they were employed by Statewide, with the exception of Mr Oxford, who was still a trainee as at the time of the hearing. During the relevant period trainees worked at least 8.5 hours per day, excluding breaks. They worked on Day Shift 2, the nominal starting time for which is 12.30 pm. All, excepting for Mr Oxford, attached a list detailing finishing times of many of the days they were employed as trainees on Day Shift 2. Awareness of entitlement to claim overtime [18] The evidence showed that the trainees were required to complete a time sheet every week, which was forwarded to NGT.11 An examination of that form shows that there is a small box within it containing two lines headed "Comment/Allowances". None of the trainees filled in that box or made a claim for overtime for the periods claimed in this dispute. The reason given was that they did not know that they could claim it. [19] Mr Beck said: "We were [not] told that we were entitled to any allowances whatsoever".12 [20] Mr Connell said: "I don't know I wasn't even really sure whether or not we were entitled to them". He had never asked either NGT or Statewide whether he was entitled to a meal allowance. [21] Mr Viney had asked NGT what his entitlements were, and received a letter in response. That letter made no reference to meal allowance. He had asked for that information because he wanted to know how to fill out his time sheets when he worked overtime. Mr Viney said that the trainees knew their pay rate but "that was about it."13 [22] Mr Bucknell's evidence was that he was aware of the "Comments and Allowances" box on the time sheet. The trainees were never told that they would have an entitlement to meal money if they worked overtime. He said: "We were never told so we didn't receive it."14 He had never asked [when a trainee] about the entitlement to the allowance because, he said, he had thought that he would get it if he was entitled to it, but: "I didn't ask because it was never like mentioned in any way shape or form."15 [23] Mr Oxford's evidence was that he only became aware of the entitlement of trainees to a meal allowance since the dispute began, ie only in the last three months. [24] Mr Cherdron said that he became aware of the entitlement about a month before he completed the traineeship, but he did not make a claim because he was no longer working overtime at that stage. [25] Mr Bowerman said that when he became aware that some people in his work area [Statewide employees] were getting a meal allowance payment he took it up with Mr John Gardner [union delegate]. Since then he had raised it with NGT who told him that if he was not notified 24 hours prior to working overtime then he could put it in the comments section of the hand book if it was okayed by the supervisor. He has since done so and it has been paid for the occasions that he has claimed it. [26] The evidence of some of the trainees was that there was a copy of the relevant award in the crib room at Statewide, although their evidence differed as to whether it was there some of the time or all of the time. Their evidence was that none of knew the name of the award. [27] Mr Glisson tendered an email to himself, dated 9 January 2003, from Mr David Sutherland, Human Resource Manager, Statewide, which said:
[28] Mr Glisson's line of questioning revealed that there had been issues and disputes in relation to meal allowances and overtime between Statewide and its own employees between December 2001 and March 2002, and that notices had been posted on noticeboards in relation to that dispute. [29] Mr Beck, Mr Viney and Mr Oxford testified that they were not aware of the dispute in relation to meal money. [30] Mr Connell, Mr Maxfield, Mr Bucknell, Mr Cherdron and Mr Bowerman's evidence was that they were aware of the meal money dispute but not of the outcome. [31] Mr Bowerman said that he knew that Statewide paid meal money to their employees when they worked a set amount over their normal working hours. Once a few of the trainees found out about it they went to see John Gardner and he made enquiries. [32] Mr Gardner's evidence was that he had been union delegate for approximately two years. He represented all union members on site, both Statewide employees and NGT employees. He had been involved with enterprise bargaining negotiations at Statewide. He was a member of the Prospect Consultative Committee and attended regular meetings including meetings at which the dispute regarding meal allowances had been discussed. Minutes of the consultative committee meetings were supplied by management to the crib rooms and put on notice boards, as was the case with memorandums resulting from those meetings. [33] Mr Gardner said that he did not see the issue as applying to anyone other than Statewide employees and that he did not know at that stage that NGT were not paying it. At the time he was specifically dealing with Day Shift 2 [Statewide]. At that time no-one had raised the question of NGT employees with him. Once that happened, he looked at the Wholesale Trades Award and found the appropriate clause. There had not been a copy of that award in the crib room. He had never seen a copy of the Wholesale Trades Award in there, ever. [34] Mr Gardner's evidence was that a memorandum setting out the resolution to the meal money dispute with Statewide was addressed to the Statewide employees only. The Memorandum said:
[35] In his statutory declaration, Mr Phillip Clarke, Afternoon Shift Manager at Statewide, said inter alia:
[36] Mr Steven Harold Badkin, Area Manager, Statewide, said in his statutory declaration:
Prior Notice of Overtime [37] Mr John Gardner's statement said that he had been employed by Statewide since 1994 and that the allocation of overtime normally follows a review of orders received from stores at approximately 5.00 pm each day. After downloading those orders, management calculates the hours needed to pick the cartons required. They then tell the pickers on an individual basis the hours that each person will need to work that night. [38] This was not raised in cross-examination and he confirmed it in re-examination. [39] Only one of the trainees was cross-examined in relation to prior notice of the requirement to work overtime. Mr Cherdron's evidence was:
[40] In re-examination, Mr Bowerman' evidence was:
[41] In his statutory declaration, Mr Clarke said:
[42] Mr Badkin's statutory declaration included the following:
SUBMISSIONS For the applicant [43] Mr Richardson, for the applicant, submitted that the relevant clause is clear and unambiguous, that is, an employee required to work two or more hours beyond their normal finish time or after 7.30 pm is entitled to meal money. [44] He said that the Commission is confronted with a situation where there is largely unchallenged witness evidence and there are two statutory declarations that, on the face of it, challenge some of that evidence. The authors of the declarations did not attend and so were not available to be cross-examined. The Commission could conclude that the respondent could have made greater efforts to secure the presence of those persons, or they could have sought an adjournment so that the witnesses could be available. The respondent chose not to do so. [45] The witnesses gave uncontested evidence that they worked on numerous occasions, in fact, more often than not, after 7.30 pm. Each witness, except for Mr Bowerman, provided a table prepared from time sheets. Each of the witnesses was subject to cross-examination and their assertions were not challenged by NGT. Specifically, it was not challenged that each of the employees had worked later than 7.30 pm. [46] There can be no dispute that the employees are entitled to the meal allowance as provided for in the award. The only possible qualification could be whether there was some tangible evidence to suggest that each of the employees had been provided with at least 24 hours notice each time they were required to work overtime. The witness evidence is largely unchallenged in respect of whether or not they received prior notice. [47] Mr Gardner gave uncontested evidence both in chief and upon re-examination, that overtime was allocated on the day and that was to the best of his recollection the custom and practice since he commenced in 1994. Under cross-examination, Mr Cherdron and Mr Bowerman also said that. [48] Notwithstanding the primary submission which is that it was not the case that prior notice was given, Mr Badkin's statement is not inconsistent with the evidence of the trainees themselves. He is not specific about the occasions upon which overtime was offered prior to it occurring, nor is he specific about exactly who he offered it to; he could, for example, be talking about the employees of Statewide or he could be talking about the casuals. [49] Mr Badkin said in his declaration that he believed that all trainees should be aware of the provisions of the meal allowance clause in the award because it was the subject of a dispute between the union and Statewide. That dispute related to a provision in an agreement, not the award provision that is central to this hearing. Even it were publicised by means of notices and meetings, it was material that was in relation to a dispute between the union and Statewide, not the union and NGT. It is a long bow to conclude that, because there was a dispute between the union and another employer over a different clause under a different industrial instrument, the trainees should have been aware of what their rights and entitlements were. [50] It is implicit within Mr Glisson's submissions that the employees had an obligation to read and understand their industrial instrument. That is not the case. The fact that an employee does not know what their entitlements are under an award does not remove the fact that the employer still has obligations under that instrument. [51] What Mr Glisson was also saying, obliquely, was that the employees were aware of the entitlement, they did not claim it, and therefore there is no obligation for the employer to pay it. That is not the case. [52] There is a contradiction where Mr Glisson says that if the trainees had put their claims for meal allowances in their time sheets it would have been paid, and his submissions where he said that there is no obligation for trainees to be paid because they are not obliged to work overtime. This is despite the fact that he also said that NGT recognises that there are times when overtime has been made available on the day and a claim has not been paid that should have been. [53] The union acknowledges that the award does not contain a provision that obliges an employee to work a reasonable amount of overtime; but it is an absolute nonsense to suggest that the absence of such a clause means that an employee may not be required or asked to work overtime. [54] The meaning of the word "required" only has a meaning in respect of where it extends beyond two hours or beyond 7.30 pm, not, as suggested by Mr Glisson, that there is no requirement to work overtime at all. Clause 5(d) simply sets what happens in the event that more than two hours is worked. [55] Mr Richardson said that the applicant accepted that there is some difficulty for the Commission in trying to quantify exactly how many meal allowances each of the employees would be entitled to. He sought orders requiring NGT to make meal allowance payments for each occasion overtime was worked after 8.30 pm, and that, prior to the making of such payments, NGT and the union meet to agree upon and record the amounts to be paid, with leave reserved to either party to address the Commission on the specific amount to be paid to each trainee in the event that such an amount is disputed. For the respondent [56] Mr Glisson said that the respondent recognises that there were occasions when individuals were given insufficient notice that overtime was to be worked. For whatever reason, the trainees concerned have not lodged claims for meal allowances. If a claim had been made then the pay office would have paid it automatically. [57] Employees would have been aware of the entitlement. The memorandum clearly reads that the allowance applies " regardless of the shift you are on"22. It also shows clearly that it applies in line with the Wholesale Trades Award and those who were paid from the award rather than from the enterprise bargaining agreement could have taken from that that there is an entitlement for them too. [58] Mr Clarke's statutory declaration clearly states that on numerous occasions he gave prior notice to trainees that they could work overtime. Mr Clarke also clearly understands and accepts that trainees cannot be compelled to work overtime. One can draw from that that it is not compulsory for trainees to work overtime. NGT instructs trainees that overtime is optional. [59] The meal allowance provision in the award says: "Employees required to work overtime for more than two hours...." This talks about employees being required to work. The Collins Dictionary defines "require" as:
[60] "Requirement" is defined as:
[61] There might be a necessity that the work be performed, but it is not a necessity that the trainees perform that role. If they did not work then it would be offered to casuals. If the trainees are simply offered the overtime, then the requirement of the award clause is not being met. [62] The offer is often made more than a day in advance, as shown by the supervisors' statutory declarations. A number of trainees worked back regularly and understood and knew that they would be working overtime on a regular basis and were informed in advance that they would be working regularly. [63] Mr Glisson said that the orders do not all come in at 5 o'clock. Many come in directly from the computer systems in the various distribution networks. He said that he had obtained this information through asking management how the orders were received, and he had observed orders coming in. [64] The fact that they were not required to work overtime and the fact that they were informed in advance means that there is not an automatic entitlement to the meal allowance. [65] The trainees were not paid meal allowances because they did not make a claim on their time sheets; if it is not recorded then the payroll office does not make the payment. Mr Glisson said that he did not understand why this was the case and that it was a complete mystery unless the trainees were getting prior notice. [66] NGT is in the situation where the management of Statewide are telling them very clearly that on numerous occasions notice was given, and the trainees telling them that it was never given. FINDINGS [67] Although some of the evidence and argument in these proceedings concerned time worked after 7.30 pm, the parties have agreed that this decision will be confined to hours worked after 8.30 pm, that being the usual finish time of the employees concerned. Any order that arises from this hearing, therefore, cannot be seen as settling the aspect of the claim that concerns work performed after 7.30 pm. [68] I accept the evidence, which was not challenged, that the employees worked the hours that they claim they worked. It is common ground that they were not paid meal allowances on those occasions. [69] One of the arguments advanced as a reason why the trainees were not entitled to be paid meal allowances was that overtime was not compulsory for trainees and therefore they were not required to work overtime. Another argument was that the trainees were, on most occasions, notified in advance of the requirement to work overtime (or they had regular patterns of overtime) and thus knew in advance that they would be working, therefore the meal allowance, under the terms of the award, does not apply. [70] An implied argument of the respondent was that because the trainees should have been aware of their industrial rights and the right to meal allowances, but did not claim for them, that must mean that they did not claim them because they knew that they were not entitled to them. [71] The evidence does not persuade me that the employees were aware of any potential entitlement to meal allowances at the relevant times. The evidence suggests that they were not made aware, particularly the letter sent to Mr Viney by NGT setting out entitlements and which made specific reference to overtime payments, but no reference to meal allowances. The trainees' evidence, under cross-examination, was that they had no knowledge of an entitlement to meal allowances at the time. Mr Bowerman became aware "later on" and then made claims, which were paid. [72] The statutory declarations of the supervisors say, in effect, that the employees ought to have been aware of a potential entitlement to meal allowances. Mr Clarke said that he `believed that the Trainees knew of their rights under the award..." Mr Badkin said "I believe that all trainees should be aware of the provisions of the meal allowance clause..." The supervisors advanced reasons upon which they based their beliefs, which included an assumed general knowledge of the dispute between the union and Statewide regarding meal money. [73] Even assuming that the supervisors could know what the trainee's knowledge of their award was, which is doubtful, it is not reasonable to assume that awareness (if it existed) of a specific circumstance applying to other employees would have or should have been extrapolated by the trainees to apply to their own circumstances. The Statewide employees were employed under the terms and conditions of an enterprise bargaining agreement, not under the terms and conditions of the award. There was a different employer involved. The trainees may or may not have read the notices or heard about the dispute, and their evidence was that, in the main, they had not, but it is unlikely that they would have thought it had any application to them, because, as already stated, it concerned a different employer and a different industrial instrument. [74] On balance, I find that the employees were not aware, or were not made aware, that they may have had an entitlement to meal allowance at the times that are the subject of this dispute. However, whether the employees were aware, were made aware, were not aware, or were not made aware, it makes no difference to the employer's obligation to pay award entitlements, if they exist. [75] Even if the trainees were aware of the entitlement and did not claim for it, that alone would not disentitle them (assuming they have an entitlement) because the absence of a claim on the part of employees does not remove the employer's obligation to comply with the award, or other relevant industrial instrument. [76] The important question is: were the trainees notified in advance when they were required to work overtime? [77] The relevant clause says:
[78] I deal firstly with the meaning of "required to work overtime". The respondent said that there was no requirement for the trainees to work overtime - that they were simply offered the opportunity to work overtime and therefore the clause does not apply to the trainees. [79] The respondent claimed that trainees generally cannot be compelled to work overtime, but put forward no evidence and gave no reasons as to why that was the case. The National Training Wage (Tasmanian Private Sector) Award says that the Training Agreement (required under the Vocational Education and Training Act 1994) may restrict the circumstances under which the trainee may work overtime and shiftwork in order to ensure the training program is successfully completed (my emphasis). There was no evidence before me to show whether or not any restrictions applied in respect of the training agreements entered into by the trainees and NGT. I am not satisfied that there was necessarily any constraint upon trainees being directed to work overtime. [80] There is no clause in the Wholesale Trades Award that obligates employees to work overtime. Such a clause, according to the applicant, is common in many awards. Following the respondent's line of reasoning, the absence of such a clause would mean that no employees employed under the Wholesale Trades Award would be entitled to payment of a meal allowance, because no employees could be compelled to work overtime. [81] In my view, the clause does not refer to the requirement to work overtime. It refers to the hours that an employee needs to work in order to qualify for the payment of a meal allowance. A reading of the wording of the clause makes it clear that what is being referred to is the requirement to work overtime for more than two hours. "Employees required to work overtime for more than two hours after the usual finishing time....shall be paid a meal allowance..." So, the relevant consideration is not whether the employees were compelled to work overtime or accepted an offer to work overtime, the proper consideration is whether, once they worked that overtime, they were required to work more than two hours after their usual finishing time. [82] So, the question becomes: were the employees required to work overtime for more than two hours after their finishing time? Clearly, there was a requirement for overtime to be worked beyond that time, because the time sheets show that the trainees worked more than two hours beyond their normal finishing time. That is self-evident. [83] Even if I accepted the respondent's argument (which I do not) that a lack of compulsion to work overtime would negate the meal allowance clause, I am not satisfied that the trainees were not directed to work overtime, as opposed to having overtime merely "offered" to them. [84] The trainees were not cross-examined as to whether they were required to work overtime or simply accepted "an offer" to work overtime. However, their evidence seems to suggest that it was not an offer, rather, a part of their usual working arrangements. The evidence shows that there were periods when they worked overtime almost every day. Mr Gardner's evidence refers to "the allocation of overtime" which does not suggest an offer. His statement said "They [management] then tell the pickers on an individual basis the hours the each person will need to work that night." Again, the language does not suggest an "offer", rather it suggests at least an expectation that the overtime will be worked. Mr Bowerman's evidence was that the field clerk would work out "how many hours we would have to work. (my emphases) Whilst I accept the evidence of Mr Clarke and of Mr Badkin that on many occasions trainees advised them that they would not be available to work overtime on particular nights, or apologised for not being available to work overtime, that suggests that there was a general expectation that overtime would be worked. [85] For the above reasons, I do not accept the proposition that trainees are not entitled to the payment of meal allowance because they are offered overtime, rather than directed to work overtime. In any event, I am not satisfied that were not so directed. [86] The entitlement does not apply, according to the relevant clause, in situations where the employee has been notified the day before of the requirement to work overtime. [87] Mr Clarke's statutory declaration said that "on numerous occasions" at least a day's notice was given; "on many occasions" they were notified more than one day in advance; and employees were "often made aware" that overtime was available for the rest of the week. [88] Mr Badkin's statement said that "on numerous occasions" the offer of overtime was made the day before, "sometimes" several days before, and "sometimes" on the day it was to be worked. [89] I make the point that the award is clear that it is the day before that employees are to be notified, not the week before, not two days before, but "the day before". This lack of flexibility is a matter for the parties to the award to address. If the intention is that the employees be notified not later than the day before, that is not what the award says. In the present circumstances, the only occasions on which there would not be an entitlement would be occasions on which the employees were notified the day before, not several days before. [90] Mr Cherdron's evidence, during cross-examination, was that he was never given prior notice. No other trainees were cross-examined in relation to the question of notice to work overtime, which is a critical question in this dispute. [91] Mr Bowerman's evidence, during re-examination, was that the field clerk would work out the extra hours the trainees were required to work and would then come and tell them, on that same day. [92] Mr Gardner's evidence-in-chief was that the allocation of overtime follows a review of orders at approximately 5.00 pm each day, and that is when the employees would be told individually whether they would need to work that night. He has worked at Statewide since 1994 and, he said, this is the way overtime has always been allocated at Statewide. Mr Gardner's evidence in this respect was unchallenged. [93] When considering this question, I have given more weight to the evidence of the witnesses who were available for cross examination, ie the evidence of Mr Cherdron, Mr Bowerman and Mr Gardner, than I have to the evidence of the supervisors, who did not attend the hearing and were, therefore, not available for cross-examination. The evidence of Messrs Cherdron, Bowerman and Gardner was clear and unequivocal in relation to the question of notification. I have also taken into account the fact that the respondent did not challenge the evidence of the witnesses in this vital respect. [94] I have considered the assertions made from the bar table by Mr Glisson that he was told by [Statewide] management how the orders came in, ie that they did not all come in late in the day and that the bulk of them come in electronically. The implication being that employees could have been notified of the requirement to work overtime much earlier than the times given by Mr Gardner and Mr Bowerman. I would have given more weight to the respondent's assertions had members of management been present to give that evidence themselves and to clarify the time by which the final picking requirements for the day would be known. However, nothing that Mr Glisson said in respect of how and when orders come in necessarily contradicts the evidence that the employees were told between 5.30 and 6.00 pm each day what overtime they would be working on that day. [95] For the above reasons, I find that the general practice at Statewide at Prospect was to notify the trainees of the requirement to work overtime on the day that the overtime was to be worked. [96] I find that the employees named in the applications are entitled to be paid meal allowances, pursuant to clause 5 - Meal Breaks and Tea Money - of Part IV of the Wholesale Trades Award for all of the occasions on which they worked for more than two hours after their usual weekday finishing time whilst employed by NGT at the Statewide Independent Wholesalers' dry goods store at Prospect. ORDER I hereby order, pursuant to section 31 of the Industrial Relations Act 1984 that Northern Group Training Limited t/a NGT Tasmania, 403-405 West Tamar Road, Riverside, Tasmania 7250, make payable to the persons whose names appear below at Schedule A the amount stipulated for Meal Allowance at Clause 5(d) of Part IV - Hours of Work, Penalty Payments, Shift Work and Overtime - of the Wholesale Trades Award for all occasions each such person worked more than two hours after their usual finish time when working at Statewide Independent Wholesalers, Prospect, Tasmania in the employment of Northern Group Training Limited, and that;
SCHEDULE A
P C Shelley Appearances: Date and place of hearing: 2003 1 Exhibit A2 |