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New South Wales Industrial Relations Commission
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WINDSCREENS O'BRIEN (METALS) ENTERPRISE BARGAINING 1995 AWARD
  
Date11/30/2001
Volume329
Part5
Page No.
DescriptionRIRC - Award Review by Industrial Relations Commission
Publication No.C0799
CategoryAward
Award Code 1005  
Date Posted12/13/2001

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BEFORE THE INDUSTRIAL RELATIONS COMMISSION

(1005)

SERIAL C0799

 

WINDSCREENS O'BRIEN (METALS) ENTERPRISE

BARGAINING 1995 AWARD

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Notice of award review pursuant to section 19 of the Industrial Relations Act 1996.

 

(No. IRC 5907 of 1999)

 

Before the Honourable Justice Kavanagh

8 May 2001

 

REVIEWED AWARD

 

1.  Arrangement

 

Clause No

Subject Matter

1.

Arrangement

2.

Title

3.

Parties Bound

4.

Date and Period of Operation

5.

Relationship to Parent Award

6.

Probationary Period

7.

Improvements in Productivity and New Work Practices

8.

Wages

9.

Hours of Work

10.

Employee Meetings

11

Sick Leave

12.

Personal Carer's Leave

13.

Bereavement Leave

14.

No Further Claims

15.

Disputes Procedure

16.

Redundancy

17.

Anti - Discrimination

18.

Area and Incidence

 

2.  Title

 

This award shall be known as the "Windscreens O'Brien (Metals) Enterprise Bargaining 1995 Award".

 

3.  Parties Bound

 

This award shall be binding upon O'Brien Glass Industries Ltd., trading as Windscreens O'Brien, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (AMFEP&KIU) and employees eligible to be members of the AMFEP&KIU.

 

4.  Date and Period of Operation

 

The award published 21 June 1996 (293 I.G. 513), as varied, took effect from the first pay period commencing on or after 13 February 1997.  This award has been reviewed in accordance with section 19 of the Industrial Relations Act 1996 (NOTE:  See clause 18, Area, Incidence and Duration.

 

5.  Relationship to Parent Award

 

The terms and conditions of this award shall be read in conjunction with the terms and conditions of the Metal, Engineering and Associated Industries (State) Award, as varied, except that where an inconsistency occurs, the terms and conditions of this award shall prevail to the extent of the inconsistency over the parent award.

 

6.  Probationary Period

 

Consistent with a competency-based skill and knowledge classification structure and utilising objective criteria, the parties agree to implement a formalised three-month probationary employment period for all new employees.  At the satisfactory completion of the three-month period, the Company will confirm with the employee ongoing full or part-time employment (whichever is applicable) under normal award and contract of employment conditions.

 

It is agreed that during the three-month probationary period, employees will receive appropriate award rates of pay and will be counselled on an ongoing basis regarding their overall performance throughout this period.

 

7.  Improvements in Productivity and New Work Practices

 

In making this award the parties are undertaking to collectively and positively work towards creating the most efficient means of manufacturing windscreens and distribution of auto glass and associated products.

 

This will be achieved through employee co-operation in improving productivity and actively participating in the introduction of new work practices and technologies.

 

8.  Wages

 

The minimum wage for all employees will not be lower than the wages provided in the Metal, Engineering and Associated Industries (State) Award, as varied, from time to time.

 

9.  Hours of Work

 

The parties agree that the ordinary hours of work of an employee shall be an average of 38 per week, to be worked on the following bases:

 

A nine-day fortnight

 

Rostered days off (RDOs) may be scheduled on any weekday, providing that it is not on the Manufacturing RDO and no more than one employee shall take their RDO on any one weekday.

 

It is agreed that, because of the demands of maintenance and tooling work, there may be situations where an employee is required to work on a scheduled RDO and/or perform a callback.

 

10.  Employee Meetings

 

Where a meeting of employees is scheduled, it is agreed that the meeting shall be held during lunchbreaks or outside of ordinary hours and, therefore, not disrupting manufacturing maintenance operations.

 

11.  Sick Leave

 

On 1 July of each year, an employee shall be credited an entitlement of 38 hours sick leave.  Unused sick leave accrued prior to the new sick leave year shall be carried over into the next sick leave year. A doctor's certificate must be produced for each day or days for which sick leave is claimed.

 

"Sick leave year" shall mean the year commencing on 1 July.

 

12.  Personal Carer's Leave

 

(a)        Use of Sick Leave

 

(i)         An employee, other than a casual employee, with responsibilities in relation to a class of person set out in subparagraph (ii) of paragraph  (c), who needs the employee's care and support, shall be entitled to use, in accordance with this subclause, any current or accrued sick leave entitlement, provided for in clause 11, Sick Leave, for absences to provide care and support, for such persons when they are ill.  Such leave may be taken for part of a single day.

 

(ii)        The employee shall, if required, establish either by production of a medical certificate or statutory declaration, the illness of the person concerned and that the illness is such as to require care by another person.  In normal circumstances, an employee must not take carer's leave under this subclause where another person has taken leave to care for the same person.

 

(iii)       The entitlement to use sick leave in accordance with this subclause is subject to:

 

(1)        the employee being responsible for the care of the person concerned; and

 

(2)        the person concerned being:

 

(A)       a spouse of the employee; or

 

(B)       a de facto spouse, who, in relation to a person, is a person of the opposite sex to the first mentioned person who lives with the first mentioned person as the husband or wife of that person on a bona fide domestic basis although not legally married to that person; or

 

(C)       a child or an adult child  (including an adopted child, a step child, a foster child or an ex nuptial child), parent (including a foster parent and legal guardian), grandparent, grandchild or sibling of the employee or spouse or de facto spouse of the employee; or

 

(D)       a same sex partner who lives with the employee as the de facto partner of that employee on a bona fide domestic basis; or

 

(E)        a relative of the employee who is a member of the same household, where for the purposes of this subparagraph:

 

1.          "relative" means a person related by blood, marriage or affinity;

 

2.          "affinity" means a relationship that one spouse because of marriage has to blood relatives of the other; and

 

3.          "household" means a family group living in the same domestic dwelling.

 

(iv)       An employee shall, wherever practicable, give the employer notice prior to the absence of the intention to take leave, the name of the person requiring care and that person's relationship to the employee, the reasons for taking such leave and the estimated length of absence.  If it is not practicable for the employee to give prior notice of absence, the employee shall notify the employer by telephone of such absence at the first opportunity on the day of absence.

 

(b)        Unpaid Leave for Family Purpose

 

(i)         An employee may elect, with the consent of the employer, to take unpaid leave for the purpose of providing care and support to a member of a class of person set out in subparagraph (ii) of paragraph (c) of subclause (1) who is ill.

 

(c)        Annual Leave

 

(i)         An employee may elect with the consent of the employer, subject to the Annual Holidays Act 1944, to take annual leave not exceeding five days in single day periods or part thereof, in any calendar year at a time or times agreed by the parties.

 

(ii)        Access to annual leave, as prescribed in paragraph (a) of this subclause, shall be exclusive of any shutdown period provided for elsewhere under this award or the parent award.

 

(iii)       An employee and employer may agree to defer payment of the annual leave loading in respect of single day absences, until at least five consecutive annual leave days are taken.

 

(d)        Time Off in Lieu of Payment for Overtime

 

(i)         An employee may elect, with the consent of the employer, to take time off in lieu of payment for overtime at a time or times agreed with the employer within 12 months of the said election.

 

(ii)        Overtime taken as time off during ordinary time hours shall be taken at the ordinary time rate, that is an hour for each hour worked.

 

(iii)       If, having elected to take time as leave in accordance with paragraph (a) of this subclause, the leave is not taken for whatever reason payment for time accrued at overtime rates shall be made at the expiry of the 12 month period or on termination.

 

(iv)       Where no election is made in accordance with the said paragraph (a), the employee shall be paid overtime rates in accordance with the award.

 

(e)        Make-up Time

 

(i)         An employee may elect, with the consent of the employer, to work  "make-up time", under which the employee takes time off ordinary hours, and works those hours at a later time, during the spread of ordinary hours provided in the award, at the ordinary rate of pay.

 

(ii)        An employee on shift work may elect, with the consent of the employer, to work  "make-up time" (under which the employee takes time off ordinary hours and works those hours at a later time), at the shift work rate, which would have been applicable to the hours taken off.

 

(f)         Rostered Days Off

 

(i)         An employee may elect, with the consent of the employer, to take a rostered day off at any time.

 

(ii)        An employee may elect, with the consent of the employer, to take rostered days off in part day amounts.

 

(iii)       An employee may elect, with the consent of the employer, to accrue some or all rostered days off for the purpose of creating a bank to be drawn upon at a time mutually agreed between the employer and employee, or subject to reasonable notice by the employee or the employer.

 

(iv)       This subclause is subject to the employer informing each union which is both party to the award and which has members employed at the particular enterprise of its intention to introduce an enterprise system of RDO flexibility, and providing a reasonable opportunity for the union(s) to participate in negotiations.

 

13.  Bereavement Leave

 

(a)        An employee, other than a casual employee, shall be entitled to two days bereavement leave without deduction of pay, up to and including the day of the funeral, on each occasion of the death of a person within Australia as prescribed in subclause (c) of this clause. Where the death of a person as prescribed by the said subclause (c) occurs outside Australia, the employee shall be entitled to two days bereavement leave.

 

(b)        The employee must notify the employer as soon as practicable of the intention to take bereavement leave and will provide to the satisfaction of the employer proof of death.

 

(c)        Bereavement leave shall be available to the employee in respect to the death of a person prescribed for the purposes of personal/carer's leave as set out in subclause (a)(iii)(B) of clause 12, Personal Carer's Leave, provided that, for the purpose of bereavement leave, the employee need not have been responsible for the care of the person concerned.

 

(d)        An employee shall not be entitled to bereavement leave under this clause during any period in respect of which the employee has been granted other leave.

 

(e)        Bereavement leave may be taken in conjunction with other leave available under subclauses (a), (b), (c), (d), (e) and (f) of the said clause 12. In determining such a request, the employer will give consideration to the circumstances of the employee and the reasonable operational requirements of the business.

 

14.  No Further Claims

 

It is agreed by the parties that there shall be no further claims made upon the Company for wage, superannuation or any other allowance increases during the life of this award.

 

15.  Disputes Procedure

 

(a)        Procedures relating to grievances of individual employees -

 

(i)         The employee is required to notify (in writing or otherwise) the employer as to the substance of the grievance, request a meeting with the employer for bilateral discussions and state the remedy sought.

 

(ii)        A grievance must initially be dealt with as close to its source as possible, with graduated steps for further discussion and resolution at higher levels of authority.

 

(iii)       Reasonable time limits must be allowed for discussion at each level of authority.

 

(iv)       At the conclusion of the discussion, the employer must provide a response to the employee's grievance, if the matter has not been resolved, including reasons for not implementing any proposed remedy.

 

(v)        While a procedure is being followed, normal work must continue.

 

(vi)       The employee may be represented by an industrial organisation of employees and the employer may be represented by an industrial organisation of employees.

 

(b)        Procedures relating to disputes, etc., between employers and their employees -

 

(i)         A question, dispute or difficulty must initially be dealt with as close to its source as possible with graduated steps for further discussion and resolution at higher levels of authority.

 

(ii)        Reasonable time limits must be allowed for discussion at each level of authority.

 

(iii)       While a procedure is being followed, normal work must continue.

 

(iv)       The employer may be represented by an industrial organisation of employers and the employees may be represented by an industrial organisation of employees for the purposes of each procedure.

 

16.   Redundancy

 

(a)        Application -

 

(i)         This clause shall apply in respect of full-time and part-time employees.

 

(ii)        This clause shall apply in respect of employers who employ 15 employees or more immediately prior to the termination of employment of employees, in the terms of subclause (d), Termination of Employment, of this clause.

 

(iii)       Notwithstanding anything contained elsewhere in this award, this clause shall not apply to employees with less than one year's continuous service, and the general obligation on employers shall be no more than to give such employees an indication of the impending redundancy at the first reasonable opportunity, and to take such steps as may be reasonable to facilitate the obtaining by the employees of suitable alternative employment.

 

(iv)       Notwithstanding anything contained elsewhere in this award, this clause shall not apply where employment is terminated as a consequence of conduct that justifies instant dismissal, including malingering, inefficiency or neglect of duty, or in the case of casual employees, apprentices or employees engaged for a specific period of time or for a specified task or tasks or where employment is terminated due to the ordinary and customary turnover of labour.

 

(b)        Introduction of Change -

 

(i)         Employer's duty to notify -

 

(A)      Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed changes and the union to which they belong.

 

(B)       "Significant effects" include termination of employment, major changes in the composition, operation or size of the employer's workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alteration of hours of work, the need for retraining or transfer of employees to other work or locations and the restructuring of jobs.

 

Provided that where this award makes provision for alteration of any of the matters referred to herein, an alteration shall be deemed not to have significant effect.

 

(ii)        Employer's duty to discuss change -

 

(A)      The employer shall discuss with the employees affected and the union to which they belong, inter alia, the introduction of the changes referred to in subclause (b)(i), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees, and shall give prompt consideration to matters raised by the employees and/or the union in relation to the changes.

 

(B)       The discussions shall commence as early as possible after a definite decision has been made by the employer to make the changes referred to in subclause (b)(i).

 

(C)       For the purpose of such discussions, the employer shall provide to the employees concerned and the union to which they belong all relevant information about the changes, including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees, provided that any employer shall not be required to disclose confidential information the disclosure of which would adversely affect the employer.

 

(c)        Redundancy - Discussions before terminations -

 

(i)         Where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing to be done by anyone pursuant to subclause (b)(i)(A) and that decision may lead to the termination of employment, the employer shall hold discussions with the employees directly affected and with the union to which they belong.

 

(ii)        The discussions shall take place as soon as is practicable after the employer has made a definite decision which will invoke the provision of subclause (c)(i), and shall cover, inter alia, any reasons for the proposed terminations, measures to avoid or minimise the terminations and measures to mitigate any adverse effects of any termination on the employees concerned.

 

(iii)       For the purpose of the discussion the employer shall, as soon as practicable, provide to the employees concerned and the union to which they belong all relevant information about the proposed terminations, including the reasons for the proposed terminations, the number and categories of employees likely to be affected, and the number of employees normally employed and the period over which the terminations are likely to be carried out.  Provided that any employer shall not be required to disclose confidential information the disclosure of which would adversely affect the employer.

 

(d)        Termination of Employment -

 

(i)         Notice for changes in production, programme, organisation or structure - This subclause sets out the notice provisions to be applied to terminations by the employer for reasons arising from production, programme, organisation or structure, in accordance with subclause (b)(i)(A), of this clause:

 

(A)      In order to terminate the employment of an employee, the employer shall give to the employee the following notice:

 

Period of continuous service

Period of notice

Less than 1 year

1 week

1 year and less than 3 years

2 weeks

3 years and less than 5 years

3 weeks

5 years and over

4 weeks

 

(B)       In addition to the notice above, employees over 45 years of age at the time of the giving of the notice, with not less than two years' continuous service, shall be entitled to an additional week's notice.

 

(C)       Payment in lieu of the notice above shall be made if the appropriate notice period is not given.  Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof.

 

(ii)        Notice for technological change  - This subclause sets out the notice provisions to be applied to terminations by the employer for reasons arising from technology in accordance with subclause (b)(i)(A).

 

(A)      In order to terminate the employment of an employee, the employer shall give to the employee three months' notice of termination.

 

(B)       Payment in lieu of the notice above shall be made if the appropriate notice period is not given.  Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof.

 

(C)       The period of notice required by this subclause to be given shall be deemed to be service with the employer for the purposes of the Long Service Leave Act 1955, the Annual Holidays Act 1944, or any Act amending or replacing either of these Acts.

 

(iii)       Time off during the notice period -

 

(A)      During the period of notice of termination given by the employer, an employee shall be allowed up to one day's time off without loss of pay during each week of notice, to a maximum of five weeks, for the purpose of seeking other employment.

 

(B)       If the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment the employee shall, at the request of the employer, be required to produce proof of attendance at an interview or the employee shall not receive payment for the time absent.

 

(iv)       Employee leaving during the notice period - If the employment of an employee is terminated (other than for misconduct) before the notice period expires, the employee shall be entitled to the same benefits and payments under this clause to which the employee would have been entitled had the employee remained with the employer until the expiry of such notice. Provided that in such circumstances the employee shall not be entitled to payment in lieu of notice.

 

(v)        Statement of employment  - The employer shall, upon receipt of a request from an employee whose employment has been terminated, provide to the employee a written statement specifying the period of the employee's employment and the classification of or the type of work performed by the employee.

 

(vi)       Notice to Centrelink - Where a decision has been made to terminate employees, the employer shall notify Centrelink thereof as soon as possible, giving relevant information, including the number and categories of the employees likely to be affected and the period over which the terminations are intended to be carried out.

 

(vii)      Employment Separation Certificate - The employer shall, upon receipt of a request from an employee whose employment has been terminated, provide to the employee an Employment Separation Certificate in the form required.

 

(viii)     Transfer to lower-paid duties - Where an employee is transferred to lower-paid duties for reasons set out in subclause (b)(i), the employee shall be entitled to the same period of notice of transfer as the employee would have been entitled to if the employee's employment had been terminated, and the employer may, at the employer's option, make payment in lieu thereof of an amount equal to the difference between the former ordinary-time rate of pay and the new ordinary-time rates for the number of weeks of notice still owing.

 

(e)        Severance Pay -

 

(i)         Where an employee is to be terminated pursuant to subclause (d), Termination of Employment, of this clause, the employer shall pay the employee the following severance pay in respect of a continuous period of service:

 

(A)      If an employee is under 45 years of age, the employer shall pay in accordance with the following scale:

 

Years of service

Under 45 years of age entitlement

Less than 1 year

Nil

1 year and less than 2 years

4 weeks

2 years and less than 3 years

7 weeks

3 years and less than 4 years

10 weeks

4 years and less than 5 years

12 weeks

5 years and less than 6 years

14 weeks

6 years and over

16 weeks

 

(B)       Where an employee is 45 years of age or over, the entitlement shall be in accordance with the following scale:

Years of service

45 years of age and over entitlement

Less than 1 year

Nil

1 year and less than 2 years

5 weeks

2 years and less than 3 years

8.75 weeks

3 years and less than 4 years

12.5 weeks

4 years and less than 5 years

15 weeks

5 years and less than 6 years

17.5 weeks

6 years and over

20 weeks

 

(C)       "Week's pay" means the all-purpose rate for the employee concerned at the date of termination and shall include, in addition to the ordinary rate of pay, overaward payments, shift penalties and allowances paid in accordance with this award.

 

(ii)        Incapacity to pay - Subject to an application by the employer and further order of the Industrial Relations Commission of New South Wales, an employer may pay a lesser amount (or no amount) of severance pay than that contained in paragraph (i) of   this subclause.

 

The Commission shall have regard to such financial and other resources of the employer concerned as the Commission thinks relevant, and the probable effect paying the amount of severance pay in paragraph (i) of this subclause, will have on the employer.

 

(iii)       Alternative employment - Subject to an application by the employer and further order of the Commission, an employer may pay a lesser amount (or no amount) of severance pay than that contained in paragraph (i) of this clause, if the employer obtains acceptable alternative employment for an employee.

 

17.  Anti-Discrimination

 

(a)        It is the intention of the parties bound by this award to seek to achieve the object in section 3(f) of the Industrial Relations Act 1996 to prevent and eliminate discrimination in the workplace.  This includes discrimination on the grounds of race, sex, marital status, disability, homosexuality, transgender identity, age and carer's responsibility.

 

(b)        It follows that in fulfilling their obligations under the dispute resolution procedure prescribed by this award the parties have obligations to take all reasonable steps to ensure that the operation of the provisions of this award are not directly or indirectly discriminatory in their effects.  It will be consistent with the fulfilment of these obligations for the parties to make application to vary any provision of the award which, by its terms or operation, has a direct or indirect discriminatory effect.

 

(c)        Under the Anti-Discrimination Act, 1977 it is unlawful to victimise an employee because the employee has made or may make or has been involved in a complaint of unlawful discrimination or harassment.

 

(d)        Nothing in this clause is to be taken to affect:

 

(i)         any conduct or act which is specifically exempted from anti-discrimination legislation.

 

(ii)        offering or providing junior rates of pay to persons under 21 years of age.

 

(iii)       any act or practice of a body established to propagate religion which is exempted under section 56(d) of the Anti-Discrimination Act 1977.

 

(iv)       a party to this award from pursuing matters of unlawful discrimination in any state or federal jurisdiction.

 

(e)        This clause does not create legal rights or obligations in addition to those imposed upon the parties by the legislation referred to in this clause.

 

NOTES

(i)         Employers and employees may also be subject to Commonwealth anti-discrimination legislation.

 

(ii)        Section 56(d) of the Anti-Discrimination Act 1977 provides:

 

"Nothing in the Act affects any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion."

 

18.  Area and Incidence

 

(a)        This award is to be read in conjunction with the Metal, Engineering and Associated Industries (State) Award, as varied, except that where an inconsistency exists between this award and the Metal, Engineering and Associated Industries (State) Award, to the extent of the inconsistency, this award shall prevail.

 

(b)        This award is to apply to employees under the Metal, Engineering and Associated Industries (State) Award at the Padstow enterprise of Windscreens O'Brien, a division of O'Brien Glass Industries Ltd. This award is made following a review under section 19 of the Industrial Relations Act 1996 and rescinds and replaces the Windscreen O'Brien (Metals) Enterprise Bargain Agreement 1995 Award published 21 June 1996 (293 I.G. 513), and all variations thereof.  The award published 21 June 1996 took effect from the first pay period commencing on or after 13 February 1996.

 

(c)        The changes made pursuant to the award pursuant to the Award Review pursuant to section 19(6) of the Industrial Relations Act 1996 and Principle 26 of the Principles for Review of Awards made by the Industrial Relations Commission of New South Wales on 18 December 1998 (308 IG 307) are set out in the attached Schedule A and take effect on 23 April 2001.

 

(d)        The award remains in force until varied or rescinded, the period for which it was made having already expired.

 

Schedule A

 

Changes Made on Review

Date of Effect:  23 April 2001

 

WINDSCREENS O'BRIEN (METALS) ENTERPRISE BARGAINING 1995 AWARD

 

Unreviewed Award Clause

CHANGES

1. ARRANGEMENT

Rename 12 as 'Personal Carer's Leave'

Add new clause '13 Bereavement Leave'

Renumber '13' as '14'

Renumber '14' as '15'

Add new clause '16 Redundancy'

Add new clause '17 Anti Discrimination'

Renumber '15' as '18'

4. DATE AND PERIOD OF OPERATION.

Delete reference to 1991 Act and insert reference to s19 review under 1996 Act

5. RELATIONSHIP TO PARENT AWARD.

Update name of parent award

8.WAGES

Obsolete provisions removed

9. HOURS

Delete 2nd paragraph - obsolete reference to a trial period.

12. STATE PERSONAL/CARER'S LEAVE CASE - AUGUST 1996

Rename as Personal Carer's Leave

13. NO FURTHER CLAIMS

Renumber as clause 14

14. DISPUTE PROCEDURE

Delete clause, insert new clause and renumber as clause 15

15. AREA AND DURATION

Amend to reflect s19 review and renumber as clause 18

NEW CLAUSES INSERTED

 

Add new clause '13 Bereavement Leave' from parent award

Add new clause '16 Redundancy' from parent award

Add new clause '17 Anti Discrimination' from parent award

 

 

 

 

T. M. KAVANAGH  J.

 

 

 

 

____________________

 

 

 

Printed by the authority of the Industrial Registrar.

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