C2001/3155, Transcript of Proceedings [2001] AIRCTrans 1331 (29 June 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 7819

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C2001/3155

TXU ELECTRICITY LIMITED

and

COMMUNICATIONS, ELECTRICAL, ELECTRONIC,
ENERGY, INFORMATION, POSTAL, PLUMBING AND
ALLIED SERVICES UNION OF AUSTRALIA

Notification pursuant to section 99 of the
Act of a dispute re alleged ban on scheduled
overtime at the Beaconsfield Depot and
surrounding area

MELBOURNE

9.05 AM, THURSDAY, 7 JUNE 2001

PN1

MR I. DIXON: I seek leave to appear on behalf of TXU Electricity Limited with MR G. McTAGGART.

PN2

MR G. SMITH: I seek leave to appear and intervene on behalf of Enetech Pty Ltd in this matter.

PN3

MR J. MADDISON: I appear on behalf of the CEPU with MR D. RILEY. The CEPU does oppose leave to counsel - both counsel appearing in this matter. The CEPU does not oppose intervention generally in respect to Enetech but we say they can be in my submission appropriately represented by others. If the Commission pleases.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Maddison. What is Enetech's role in this dispute?

PN5

MR SMITH: Your Honour, perhaps if I could just briefly explain the corporate structure. If we looked at it in two groups, Enetech basically is owner controlled by Tenex and Eastern Energy is basically part of TXU. Enetech was purchased by Tenex in December 1999 and it was formerly owned by the TXU Group, if I can put it like that. Enetech has four divisions: an energy division, a communications division, a water division and an electrical contracting division. Overall there are 700 employees in those divisions.

PN6

I should point out that those 700 were 1200 in September last year but due to a significant downturn, particularly in communications, there has been a large decrease in the number of employees. Of those 700 employees 280 are in fact - I call them employees but 280 are in fact on secondment from Eastern Energy. They are Eastern Energy employees working under our management and our supervision, and they work in the energy division. Also in the energy division there are another 100 or so employees who are our direct employees; that is Enetech's employees.

PN7

Of that 100 approximately 20 are line workers. Perhaps I should point out that the 280 Eastern Energy workers are essentially line workers as well.

PN8

THE SENIOR DEPUTY PRESIDENT: Sorry, 280 are line workers?

PN9

MR SMITH: Yes, your Honour. So there is a corporate mishmash behind all this, but essentially what the situation is that Enetech Energy Division do a lot of work in the maintenance area in the old SECV and other areas. We have depots all round Victoria, 25 in number, but we engage people from Eastern Energy who are seconded to us from Eastern Energy/TXU and there are about 280 of those, and we have about 100 of our own direct employees, 20 of which are lines people as well. The Eastern Energy employees have their own enterprise agreement which is current; it doesn't expire till the end of this year.

PN10

The Enetech employees also have their own enterprise agreement which is current and doesn't expire until the end of this year. You have before you a notification of dispute by Eastern Energy/TXU in effect talking about their 280 employees. Those are the 280 that are under our management supervision. We also have the same dispute with our 20 employees. So in effect there are 300 employees in dispute, all of them under our management and supervision, but only 20 of which are our direct employees. The organisation - - -

PN11

THE SENIOR DEPUTY PRESIDENT: Sorry.

PN12

MR SMITH: I was going to say, your Honour, as a consequence of that the organisation which is suffering loss and damage, significant loss and damage through this dispute, is in fact Enetech. We are the ones who are unable to fulfil our contractual obligations to various parties, particularly - because this is a ban on overtime, particularly on planned overtime for weekends, which we - on weekends we do a lot of work in shopping centres, we do work for VicRoads, those sort of projects that we can't get to during the week we can do on weekends. The ban as we understand it is on that overtime. It is not on unplanned overtime which are call-outs but is on that overtime which we work on weekends.

PN13

So we are the organisation who are experiencing the loss and damage. The other point I should make to your Honour is that we do have the authority of Eastern Energy/TXU to negotiate on their behalf, to make changes on their behalf, so ostensibly acting as their agent in respect of industrial employment matters.

PN14

THE SENIOR DEPUTY PRESIDENT: And in effect there are two agreements covering the workers that we are dealing with?

PN15

MR SMITH: Yes, there are.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes. What would justify counsel appearing in the matter?

PN17

MR SMITH: Your Honour, well in light of that fairly complex picture and the fact that we say there are clear breaches of the grievance procedure, clear breaches of our certified agreement, particularly section 170M of the Act, the fact that Enetech has no-one within its organisation who is consistently - in fact they have never appeared before the Commission - has been in the Commission but never appeared before this Commission and today all we are seeking is an attempt, or is making an attempt to have this matter resolved through negotiation with the CEPU.

PN18

Failing negotiation we would be seeking a direction that the bans be lifted. So we say in the light of those circumstances the fact that there are significant issues behind this, particularly legal issues behind this, the fact that the company can't be adequately represented without legal counsel, that leave should be granted.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Smith. Mr Dixon, just on the question of representation.

PN20

MR DIXON: Certainly, your Honour. Well, the same - I must admit, if I can say with respect, my colleague has outlined the difficulties that are involved in the present position from the employer's side. We notified formally as the employers but Mr Smith is correct and we endorse that publicly for the record that the management and supervision of the seconded employees is a matter which is for Enetech. We are aware of our obligations and it is that overlap but clearly the intention of negotiating with the workforce consistently, that brings two parties before you and with the assistance of counsel.

PN21

We do have Mr McTaggart who has appeared in the Commission briefly but is not necessarily across the corporate restructuring and the alliance contract which exists between Enetech and Eastern Energy. That is involved in what the matter is before you. We say also, your Honour, that it is a matter of discretion for you, this exercise of leave under section 41, or 42, sorry. We are not here to take these points. In fact we are here to try and assist the Commission and in negotiations with the ETU. Specifically, we are aware of our obligations under the Act not to take legalistic points but to get to the merits of the dispute.

PN22

We believe that the ETU is well represented by the two gentlemen at the table, Mr Maddison and Mr Riley, who are conversant with the Commission. If you at any time felt that they were being oppressed by our position you have more than ample powers under section 110 and 111 to remedy any prejudice they may feel by our representation. You are always able to withdraw our leave to appear if that was the way. But like Mr Smith indicated we are here because people are in dispute. I am here because there is a difficult commercial and contractual background which has been outlined to you in detail which I won't endorse, or go over again.

PN23

But we are seeking simply a resolution of the dispute on behalf of the people, but being aware that the management and supervision is with Enetech.

PN24

THE SENIOR DEPUTY PRESIDENT: Have you been involved in direct discussions with the union about this issue already.

PN25

MR DIXON: Not in this particular issue. I think there has been some contact made but on this particular ban, the overtime bans, no. And let me just go to that, your Honour. I thank you for raising it. We haven't. It is a matter that these personnel have been seconded to the service provider to fulfil the services on our network. The are out network; we are involved. It is ultimately TXU's network as a distributor but Mr Smith has already outlined the prejudice and damage that his client would suffer. We haven't but we are more than happy to be part of it, as in a secondary role as we take - it is a matter that we are not trying to complicate the issue here; we are trying to step back and leave Enetech to sort it out. But we are involved as a legal employer and we don't resile from that. If the Commission pleases.

PN26

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Dixon. Mr Maddison, do you want say anything in response?

PN27

MR MADDISON: Your Honour, I think Mr Smith has outlined the corporate structure where the relevant employees are engaged and who by, and if there is going to be any further dealings with that, which I don't understand there to be, then he has adequately dealt with that matter to highlight to your Honour that corporate situation, that we say is for the purpose of this argument anyway no more or no less complex than outlined. In relation to the subject - - -

PN28

THE SENIOR DEPUTY PRESIDENT: It still sounds complex to me I might say, Mr Maddison.

PN29

MR MADDISON: Well, if that is what - and it is. It is complex to some extent, definitely and we as the union representing some 300 employees, that is the extent of our knowledge, that what has been outlined to you. We have sought further information in the past when a secondment arrangement was entered into back early last year and that was the detail - as much detailed information as we received due to that old commercial confidential nature of this arrangement. Now, at some stage there may well be a need for us to further examine what this arrangement really entails.

PN30

Mr Smith took you to the point that he is authorised to negotiate on behalf of all these people who are seconded to Enetech. Now, Mr Riley and myself had discussions on Monday this week with Enetech and we said that you are not the employer of the 280. The employer has the legal responsibilities, why should we be negotiating with you in respect to what happens with these people? Now, they took that point and said that they would supply us with some legal document no doubt that would indicate or - within their minds demonstrate that they do have that ability.

PN31

Now, we have not received any such notification or advice as yet. So in the first instance we say that we do not necessarily concede that at this stage at least that Enetech do have the ability to negotiate and represent the some 280 employees who are seconded to them. And I just make that point in response to submissions - - -

PN32

THE SENIOR DEPUTY PRESIDENT: Yes, but you said you don't take objection to the intervention.

PN33

MR MADDISON: That is right, I didn't seek to take objection to the intervention because they by virtue of having 20 employees directly they have a relevant interest, and they may also have a relevant interest for the purpose of these proceedings as the corporate entity that is overseeing and supervising these employees. But I say that is certainly a different thing to being the employer and having the obligations per se. But we didn't oppose intervention on those bases, your Honour.

PN34

THE SENIOR DEPUTY PRESIDENT: But do you see any prejudice to yourself in negotiating directly with legal representatives of TXU and Enetech?

PN35

MR MADDISON: Your Honour, the notification that we received was - and it is mentioned simply as a ban on scheduled overtime at the Beaconsfield Depot and surrounding area.

PN36

THE SENIOR DEPUTY PRESIDENT: All right.

PN37

MR MADDISON: Now, this is still in my submission a lay person's jurisdiction and only in circumstances prescribed in section 42(3) at the Commission's discretion may then allow counsel to represent parties. Now, I say at this stage there is no such need. There is no special nature of the subject matter. The subject matter here is not the corporate structure but the subject matter is an alleged ban on overtime, nothing more, nothing less.

PN38

THE SENIOR DEPUTY PRESIDENT: I have a duty in any event to try to conciliate in this matter. Subject to hearing what it is all about- - -

PN39

MR MADDISON: Yes.

PN40

THE SENIOR DEPUTY PRESIDENT: - - - I would intend adjourning into conference and it may well be at that point in time if there are representatives of the companies available, then those people could be involved in the negotiations. But I see no prejudice to you in allowing a legal representation for the purpose of the hearing and the proceeding at this time.

PN41

MR MADDISON: What I say - and I think your Honour's suggestion about going into conference is a good one - but what we say in relation to that is that both the companies have representatives here, Mr McTaggart and Ms Carson, who are more than adequate to deal with those kind of discussions about any alleged bans and sorting out issues. It is what they do on a daily basis - maybe not on a daily basis but it is what they are employed to do and what they do. And, your Honour, in relation to the prejudice the union may suffer this is a matter that may or may not develop into something bigger than these alleged overtime bans and we would like to deal directly with the employer at this instance.

PN42

And if it does call down the track for far more complex and technical proceedings, then obviously the employer parties are at liberty to seek counselling in those kind of proceedings. But at this proceedings we say that there is no great need, with respect to my friends, for their presence, sir, to get the parties to sort out at this stage the dispute between them.

PN43

THE SENIOR DEPUTY PRESIDENT: Well, what I propose to do is to grant leave to Enetech to intervene and I grant leave to the legal representations of each of those parties, at least for the purpose of hearing what the matter is all about on transcript and we can consider the position as far as the negotiations are concerned when we adjourn into conciliation.

PN44

MR MADDISON: If your Honour pleases.

PN45

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Maddison. Who wants to tell me what it is all about?

PN46

MR SMITH: I think it probably falls to me, your Honour, as we are the party most directly involved. Your Honour, the events really commenced last week. If we go back to Wednesday, 30 May, there was a brief discussion between the company and the union, at which time the company advised - - -

PN47

THE SENIOR DEPUTY PRESIDENT: That is Enetech is it?

PN48

MR SMITH: This will be Enetech unless otherwise advised, your Honour.

PN49

THE SENIOR DEPUTY PRESIDENT: Yes.

PN50

MR SMITH: There was a brief discussion between the company and the union, in which the company advised the union that there was to be a meeting of - or set up a meeting for the following day - that is Thursday, 31 May and the company advising that a number of changes would be announced at that meeting. That meeting did in fact occur on 31 May. It was conducted by Mr Ian Grant, who is the General Manager of the energy group for Enetech and there was a presentation made at the Wonthaggi Depot. Effectively Mr Grant advised at that meeting that there were to be a number of changes and he outlined those changes.

PN51

The first was that there was to be - there were steps to be taken to reduce the amount of overtime that is being worked by the employees and the primary means by which that would be done would be the introduction of an afternoon shift, which is a little ironical, as you will see, your Honour, when in fact these bans are on overtime and the reason given to us by the union is that it is because of excessive overtime being worked. But we will come to that. The second point is that there is to be a redeployment of labour from depots which had a surplus to depots which had a deficit, or shortage.

PN52

So in other words, redeploying labour to where it is really needed throughout Victoria. The third was that there would be a review overall of workforce levels and I think at that point there were some questions asked and suggestions made that there may need to be a change in the number of workers by about 80. That doesn't necessarily mean a reduction of 80 but 80 positions might be affected and there would be some - - -

PN53

THE SENIOR DEPUTY PRESIDENT: Sorry, you mean redeployed or retrenched?

PN54

MR SMITH: There is the possibility of retrenchment, some redeployment, yes, your Honour. We would need some employees to work the afternoon shift, for example. And the fourth was that there would be - there would need to be a change in some work practices to make business more cost effective and efficient. That meeting concluded and the following day a number of area managers of Enetech were advised by the on-site delegates that there was a ban to be put on planned or scheduled overtime. That is the overtime to be worked on weekends, which is planned in advance. At that point no official reason was given.

PN55

Enetech advised TXU of what had occurred and at that point TXU notified the Commission of this dispute. There was contact made between Enetech and the union and we were advised that the purpose of the bans was to address concerns regarding excessive hours. Now, your Honour, that is the official reason, as we understand it, given by the union. We say it is not the real reason for this dispute. We say that the real reason that we believe is that the number of changes that we propose to introduce to make the business more efficient.

PN56

There was in fact overtime scheduled for last weekend and we had - we weren't able to perform that overtime and that had a significant impact on our business. In particular, we had a contract with VicRoads. VicRoads was actually changing the direction of a road and that all had to be done on the weekend, but it depended on us performing our role. We couldn't perform our role so the road could not be redirected. Now, clearly we are exposed contractually to a very extensive claim for VicRoads because of that.

PN57

THE SENIOR DEPUTY PRESIDENT: So the bans were actually applied last weekend were they?

PN58

MR SMITH: They were, yes, your Honour. So our potential loss and damage is that we are exposed contractually to claims for failure to deliver our services. We have already had customers ringing up and telling us that because we are not able to deliver they may be looking elsewhere to provide these services, and we are just simply unable to plan for the future to work overtime on weekends and, of course, that brings with it a significant loss of revenue as well.

PN59

THE SENIOR DEPUTY PRESIDENT: Is there overtime planned for this coming weekend?

PN60

MR SMITH: We believe there is, your Honour, yes. And we are in a position at this point in the week where we can actually put together an overtime roster for this weekend and work that weekend if we can get the bans lifted. Now, as I said to you earlier, the union gave us the reason that the bans were imposed because of excessive hours. We have also been contacted by the Victorian Government who apparently were contacted by the union, and according to the Victorian Government this dispute is all about the number of job losses in regional Victoria, which nothing was said to us from the Victorian Government about excessive hours.

PN61

Now, our concern, your Honour, is that clearly there are enterprise agreements in place. Section 170MN applies. This action is being taken in breach of section 170MN. There has been no attempt to follow the disputes settlement procedure and, of course, there are issues that then arise for us under section 187AA of the Act, whether these people can indeed be paid at all because of the industrial action which is incurred. So it is a rather complex picture in that sense and we are anxious that the bans be lifted as a matter of urgency so that we can plan this weekend overtime, so we can fulfil our contractual obligations and we would be ultimately seeking that direction from the Commission if the discussions that occur before you today bear no fruit.

PN62

THE SENIOR DEPUTY PRESIDENT: Has the afternoon shifts been introduced?

PN63

MR SMITH: Not yet, your Honour, no, not yet. In fact I don't think any of the changes have actually been introduced, they have just been flagged at this stage, that these are the things we would like to introduce.

PN64

THE SENIOR DEPUTY PRESIDENT: And have there been discussions between Enetech and TXU about the effects that that is likely to have on the people who are seconded from TXU?

PN65

MR SMITH: I believe that they have had those discussions, yes, your Honour.

PN66

MR DIXON: That is so, your Honour.

PN67

MR SMITH: And my understanding is that TXU fully appreciate that these changes have to be made so that Enetech can provide its services in a cost-effective and efficient manner. As I have outlined to you in leave to appear, your Honour, Enetech a year ago, or less than a year ago, had 1200 employees. We now have 700 employees. There is the potential for that to reduce further unless we become very, very cost-effective and efficient. These are measures that we believe have to be put in place to preserve jobs as much as anything else.

PN68

The other point I should make, and it is perhaps not a core issue, but just of interest, that also immediately following these announcements by Mr Grant, we seem to have had a flurry of safety issue notifications. Now, whilst we treat every issue and every - particularly every safety issue seriously and we are pursuing them, it is more than coincidental that the day after these announcements were made we apparently received a large number of safety issues and a ban on overtime. So we are hoping that we can sort the matter out before you today, your Honour.

PN69

We are open to full frank discussions but as I said, if that fails to resolve the issue we would be looking for a direction that these bans be lifted so that we can work our overtime on the weekend and we can fulfil our contractual obligations

PN70

THE SENIOR DEPUTY PRESIDENT: And was there consultation with the union about those proposed changes that were announced by Mr Grant?

PN71

MR SMITH: Could I just have a moment, your Honour. On my instructions, your Honour, there was consultation with the union on a number of occasions before the announcements were made on 31 May. From murmurings on the other side of the bar table I understand that that might be contested, but my instructions are very clearly that there were discussions.

PN72

THE SENIOR DEPUTY PRESIDENT: We will hear from Mr Maddison in due course. Yes. Anything else, Mr Smith at this stage?

PN73

MR SMITH: No, your Honour.

PN74

THE SENIOR DEPUTY PRESIDENT: Thank you very much. Mr Dixon, did you want to say something

PN75

MR DIXON: No, your Honour. I think Mr Smith outlined that we do - we confirm that these were discussed between ourselves as the network and the alliance contractor and were felt to be needed. We foreshadowed that changes had to take place, or would be introduced in discussion in the usual way and properly, and we understand that is the process which is taking place.

PN76

THE SENIOR DEPUTY PRESIDENT: Have you had any approaches from the union at all to discuss this?

PN77

MR DIXON: We have been contacted I understand you might say formally - in other words, we were contacted, but it was a matter which arose out of - we understand that Enetech were having more formal meetings with the union and that seemed to us to be the proper way to go. We were contacted and we said we were aware of the changes, or the proposed changes and measures, but I don't think - we haven't had any formal meetings to discuss them directly, no.

PN78

THE SENIOR DEPUTY PRESIDENT: Mr Maddison.

PN79

MR MADDISON: Thank you, your Honour. Your Honour, Mr Smith raised a number of issues. The first issue I wanted to address was the afternoon shift. Your Honour, there have been a number of discussions between the union and Enetech in respect of the afternoon shift. I don't want to go into all those discussions, your Honour.

PN80

THE SENIOR DEPUTY PRESIDENT: No.

PN81

MR MADDISON: Other than to say the union is not opposed to the introduction of the afternoon shift. The parties are opposed about the implementation of how the company wanted to implement the afternoon shift against how the union sees the afternoon shift being implemented. But we are not opposed to the implementation of the afternoon shift and there has been discussions about that.

PN82

THE SENIOR DEPUTY PRESIDENT: Yes.

PN83

MR MADDISON: Your Honour, in relation to Mr Grant from Enetech, who was at the Wonthaggi Depot last week - now, I think it is fair to say there has been a number of rumours about potential downsizing which have been floating around for a number of months. And every time these rumours have surfaced they have caused - obviously with the amount of - with the sort of economic situation they have caused great concern amongst our membership and they have sought for us to ascertain whether or not this is really going on or if it is just one of those rumours.

PN84

Every time in the past when we have sought off Enetech confirmation about are you going to downsize or not, up until Tuesday this week they have always responded that nothing is happening. That has been the official position of Enetech. Now, when Ian Grant went and, amongst other things, informed people that 80 people - and the word that got back to us is that 80 people be retrenched, not just moved to an afternoon shift or moved to a different depot, but the figure of 80 was in respect to people losing employment.

[9.35am]

PN85

THE SENIOR DEPUTY PRESIDENT: That was from your own members, was it?

PN86

MR MADDISON: Yes.

PN87

THE SENIOR DEPUTY PRESIDENT: Yes.

PN88

MR MADDISON: And, your Honour, we say that the same comments were made by Mr Grant in Lilydale, yesterday and the same figure was used. Now the union met with Enetech on Tuesday this week, 5 June and without going into great detail again, your Honour, other than to say that they said things were not as good as they would like to be. They were not as competitive, they were not winning tenders, they were looking at a range of options one of which may include the reduction of numbers.

PN89

They said they had not got up to the stage of working out specific numbers, areas, etcetera and at that meeting we - I think as I outlined it just previously, your Honour, said that the employer was not Enetech, we are going to start negotiating with the employer about reductions. We want to negotiate with the employer. And as I indicated, Enetech said that they would be the agent and we said, well show us why that is so. Until you do that, we believe that TXU or Eastern, as it was formerly known, Eastern Energy, is certainly the employer at law and they are the people who should be talking to us. That is a bit of a side issue but it is certainly something that comes up at the - I suppose at the outset of any negotiations about reduction in numbers. Now - - -

PN90

THE SENIOR DEPUTY PRESIDENT: But that, sorry - that will ultimately be determined by Enetech and those people would normally then return to their employer. It could be a question then of whether or not they can be employed by the employer to some other work, wouldn't it?

PN91

MR MADDISON: Well, your Honour, I do not propose to hand up the scant knowledge we know of the secondment arrangement but it is unclear about what the employer's responsibilities are and what Enetech's responsibilities are in relation to the some 280 employees.

PN92

THE SENIOR DEPUTY PRESIDENT: Yes, but what I am getting at is Enetech, at the moment, is the body or corporation that is going to have control over whether or not these people are deployed or continue in their current positions, or whatever. It is not going to assist if you do not talk to Enetech about it, is it?

PN93

MR MADDISON: The situation, your Honour, is a little bit more complex than that because all - Enetech have said to us they are in control of the on-site supervision of these people. The employer, TXU or Eastern Energy, also own the assets that they are engaged on so they probably have a little bit more to say, your Honour, about where the whole process is going, rather than just a situation where they are, I suppose like a labour hire or akin to a labour hire situation where they would just say to the client "How many people do you need? Here they are. Things go bad, you need less, we will remove them."

PN94

The situation is not quite like that because the employer actually does have a bit more at stake in the whole process and because they own the assets and they are not just like akin to a labour hire body. I think that they will have a bit more say rather than just pulling back and saying, "All we are doing is supplying the labour, like nothing more, nothing less". So this is a thing, I think, at the - it really needs to have some - we will need to know a bit more at the outset about who we are negotiating with because we do not want to find, at the end of the day, we have been negotiating with Enetech and the - whoever loses or may not lose their job, their claim is not going to be against Enetech.

PN95

It is, if there is any unfairness or harshness in the termination, it will be against Eastern and we do not want the situation to be, "Well you have negotiated with them, it is nothing to do with us." Because at the end of the day the legal liability is on TXU or Eastern. So it is - we say that it is really a very crucial issue at the outset. But pushing that to one side for now, in relation to the alleged bans - now Mr Smith at the end also - I am not sure if he has picked up on reports in the press about unions using bogus safety issues for industrial purposes or not, but we certainly do refute any such allegations that in any way safety issues have been used in this manner.

PN96

Your Honour, it is a live issue in the workplace, of people working extended hours and very long hours and, your Honour, there has been a recent case before Kaufman, SDP where one of the seconded employees was terminated after working 18 hours in a shift which is not uncommon I might add, your Honour. He made a mistake at the end of that 18 hours due to fatigue and was terminated as a result of that. Subsequently, there had been new policies in the workplace about extended hours as there had not been any such policies previously and our employees, our members, are now working towards this new policy and not working the hours that people were before. So we say that the amount of hours is a genuine issue in the work place and is not some bogus thing to be relied upon for other purposes.

PN97

THE SENIOR DEPUTY PRESIDENT: Just on the issue of planned overtime - - -

PN98

MR MADDISON: Yes.

PN99

THE SENIOR DEPUTY PRESIDENT: - - - I am not familiar with the Enetech agreement, but the Eastern Energy Agreement makes provision for planned overtime, doesn't it?

PN100

MR MADDISON: Can I just have a moment.

PN101

THE SENIOR DEPUTY PRESIDENT: I think it is in clause 31.

PN102

MR MADDISON: I thank your Honour for that. Your Honour, that does provide for planned overtime obviously and that clause, all it does, in my submission, is set out minimum periods of payment for schedule overtime and - - -

PN103

THE SENIOR DEPUTY PRESIDENT: And it contemplates, obviously, that there will be scheduled overtime?

PN104

MR MADDISON: It certainly does, your Honour.

PN105

THE SENIOR DEPUTY PRESIDENT: Yes. Is there a similar provision, sorry, in the Enetech Agreement? I was not aware this morning that we were going to have the Enetech agreement, the subject of this dispute?

PN106

MR SMITH: Yes, I believe there is, your Honour.

PN107

THE SENIOR DEPUTY PRESIDENT: There is, yes.

PN108

MR SMITH: Well, I have been instructed that the provisions are almost identical.

PN109

THE SENIOR DEPUTY PRESIDENT: Yes. Sorry, Mr Maddison, I did not mean to interrupt you. The only point I was making is, I understand what you are saying about the fellow who worked 18 hours straight and so forth.

PN110

MR MADDISON: Yes.

PN111

THE SENIOR DEPUTY PRESIDENT: But as far as schedule, that was not scheduled or planned overtime I take it, that was just - - -

PN112

MR MADDISON: No, that was scheduled and planned - for people on a - in that situation that I just mentioned, your Honour, the employees are engaged to do their normal eight hours and then they are on a roster for servicing and faults at the night time and the people that were, or the member who was terminated and eventually reinstated was working that, what we say is planned and scheduled overtime on the overtime roster. So - - -

PN113

THE SENIOR DEPUTY PRESIDENT: I understood that we were talking about the weekend work basically now and public holidays, but I mean perhaps we can sort that out later.

PN114

MR MADDISON: Yes, what we say in relation to any alleged overtime ban in the circumstances where employees have been informed that up to eight people are going to be made redundant we say people have taken it upon themselves to say in those circumstances well we need to re-look at how the work is organised to hopefully minimise any impact of proposed redundancies. One of the things we would look at, obviously in that situation, would be overtime. But we say - - -

PN115

THE SENIOR DEPUTY PRESIDENT: But, I mean, correct me if I am wrong, planned - schedule or planned overtime on the weekend would always be - sorry, weekend work would always be overtime anyway, wouldn't it? There is nothing in the agreement that allows - - -

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MR MADDISON: Yes.

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THE SENIOR DEPUTY PRESIDENT: - - - normal rostered days on weekends?

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MR MADDISON: Yes.

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THE SENIOR DEPUTY PRESIDENT: Yes. All right.

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MR MADDISON: In those circumstances people may have taken it upon themselves to not do planned overtime. We say that there is, though, no ban emanating from the CEPU and we say that our understanding is that people are responding to any emergency, servicing faults after hours but some people may have taken it upon themselves not to do planned overtime in circumstances where people's jobs are potentially at risk.

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In respect to what the Victorian government's position may or may not be, obviously, they have similar rights to Mr Smith to intervene if they think it is warranted and in my submission anything said in relation to what the government's position may or may not be is something for them to address and not Mr Smith, with respect. Just one final point, Mr Smith at the outset addressed that Mr Grant, when he was down at Wonthaggi sought, in his discussions with the members down there, to reduce the amount of overtime, so it may be said perhaps that people have taken that on board in any decisions they have made in respect to overtime being done currently.

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THE SENIOR DEPUTY PRESIDENT: But as I understood Mr Smith there was no amount of overtime nominated at that time that the amount of overtime would be reduced by. It was just suggested that might be one of the ways to deal with the situation that was confronting the company at the present time. Is that right?

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MR MADDISON: Yes. That is of what I understood his submission - and perhaps some of our members are a bit pro-active in that respect, your Honour. We have nothing further to say at this stage.

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THE SENIOR DEPUTY PRESIDENT: Okay, Mr Maddison.

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MR MADDISON: Thank you, your Honour.

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THE SENIOR DEPUTY PRESIDENT: Mr Smith, do you want to say anything in response, before I adjourn into conference?

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MR SMITH: No, I do not think so, your Honour. I think we can deal with that adequately in conference.

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THE SENIOR DEPUTY PRESIDENT: Mr Dixon?

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MR DIXON: No, thank you, your Honour.

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THE SENIOR DEPUTY PRESIDENT: No. Very well. I will adjourn this matter into conference. There will not be a need for the court reporting service. And if we require to go back on record for any reason we can ask the court reporting service to come back later.

NO FURTHER PROCEEDINGS RECORDED [9.50am]