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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 6541
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER MANSFIELD
BP2004/2755
BP2004/2756
BP2004/2757
APPLICATION FOR TERMINATION
OF BARGAINING PERIOD
Applications under section 170MW of the Act
by TXU Group of Companies and Others for
orders to terminate or suspend bargaining
periods in BP2003/7166, 7168, 7169, 7180,
7188, 7228, 7230, 7232, 7233, 7372, 7373
7374 and 7375
MELBOURNE
9.32 AM, THURSDAY, 25 MARCH 2004
Continued from 24.3.04
PN2438
THE COMMISSIONER: We are missing one person, a very important person.
PN2439
MR PARRY: Perhaps Mr Arnett could leave the witness box. I have got an application that I have mentioned to my learned friend.
PN2440
THE COMMISSIONER: Yes, Mr Arnett, you might just leave for a moment please.
PN2441
MR PARRY: About re-calling Mr Minster. I won't put the application until he comes back.
PN2442
MR BORENSTEIN: Sorry, Commissioner.
PN2443
THE COMMISSIONER: Yes. I am sorry, Mr Borenstein, we weren't aware that you weren't in the room. Mr Parry?
PN2444
MR PARRY: If the Commission pleases. Yesterday there was some evidence given by Mr Minster about a meeting, that he was of the view was off record and without prejudice. It appears to be the unions position yesterday via Mr Georgiou that that was not the position, that this meeting somehow was on the record and was to be used. Now, one cannot have off the record on one side and not on the other. And it appears that the other side are going to make some use of the existence of this meeting to advance their case, comments like the meeting that didn't occur, and so forth.
PN2445
Now, in those circumstances we think it is appropriate that that evidence of the meeting, and what took place immediately before and what took place after, needs to be before the Commission. Now, we want to make it clear that we don't consider that we are waiving our position of this being off the record, but it seems to be the position that the other parties are treating it as on the record. In those circumstances we think it should be on the record. So I make that application to call Mr Minster.
PN2446
THE COMMISSIONER: When do you wish to call Mr Minster, Mr Parry, immediately or when we finish with Mr Arnett?
PN2447
MR PARRY: My submission is to do it immediately.
PN2448
THE COMMISSIONER: Good. Now, I will turn to Mr Borenstein. Mr Borenstein, just before we start on this discussion, is it your instructions that the meeting was, in fact, on the record?
PN2449
MR BORENSTEIN: Can I just have a moment?
PN2450
THE COMMISSIONER: Your clients can't have it both ways.
PN2451
MR BORENSTEIN: I understand that. Can I say two things in relation to that. Mr Georgiou's instructions are that his proposal about the meeting was, that they would go to the meeting, it would be a meeting in the same way as previous meetings, but that they wouldn't open their books, they wouldn't make any notes, and they would have a discussion, a full and frank discussion about the issue.
PN2452
THE COMMISSIONER: Well, sort of midway between on and off the record then?
PN2453
MR BORENSTEIN: Well, I am not sure how you would characterise it.
PN2454
THE COMMISSIONER: Well, just stripping all whether you take notes or whether - did Mr Georgiou and his colleagues believe that the meeting as on the record?
PN2455
MR BORENSTEIN: Well, I understand from Mr Georgiou, yes.
PN2456
THE COMMISSIONER: Well, if that is the case, I think we will regard it as being on the record, if you are comfortable with that, Mr Parry.
PN2457
MR BORENSTEIN: Can I just add one thing before we get to that, and it deals with the other point that Mr Parry made. You will recall yesterday that the reason I - the submissions that I advanced in support of asking Mr Minster about some questions were essentially on the basis that he had given the Commission an impression as to the state of the unions position, which we said was not correct.
PN2458
Now, overnight this has troubled me, and I have looked to see whether, in fact, I was correct. And there is, in fact, judicial authority to the effect that even if the meeting were without prejudice, it would be improper to allow the privilege to stand in circumstances where the party that relies on that privilege would mislead the Court. Now, there is authority in the Supreme Court of New South Wales, and there is authority in the Federal Court of Australia to that effect.
PN2459
And so we would say whether it is without prejudice or it is not without prejudice, if the case which was being advanced by Mr Minster was that the union has had a particular position which is not correct, then that privilege wouldn't be allowed to stand. But you ruled on it, and we accepted your ruling. We didn't like it, but we accepted it.
PN2460
THE COMMISSIONER: The difficulty your clients have, Mr Borenstein, is the one we talked about a little bit the other day, and that is, in the course of industrial relations at times, as we are all aware, there may be opportunities for both parties to sit down in confidence and discuss options. And when that is done it is the general view of negotiating parties that those options that might be discussed are not then the subject of public comment.
PN2461
And if one side or the other chooses at some later time to disclose those comments, it certainly breaches the general understanding of how those exchanges of view are treated in the future. And the consequence of that is that it puts at risk any future opportunity for those sorts of discussions to occur. And I think even as Mr Georgiou accepted, he has what he described, I think, as private discussions or telephone discussions with Mr Minster from time to time of an informal kind in a sense. And, you know, you just have to question whether Mr Minster is going to be prepared to have those discussions in the future. That is the policy issue that I was concerned about.
PN2462
And then we discussed, well, if there were developments that occurred at that Monday meeting, how otherwise could they be dealt with? And we suggested ways of doing that, such as the evidence given by Mr Arnett and Mr Georgiou in regard to things like, are they prepared to be a bit more flexible with offsets on the 36 hour week? They could give that directly in the witness box and say it quite openly, and they alluded to it. I am not saying they said it, they alluded to it.
PN2463
MR BORENSTEIN: No. I am not trying to have you accept or acknowledge that you accept their evidence, but we tried to do that in the witness box in accordance with your indication.
PN2464
THE COMMISSIONER: Yes. In any case, we are now at the stage where Mr Parry wishes to recall Mr Minster to give evidence on some of the things that occurred at this Monday meeting.
PN2465
MR BORENSTEIN: Yes. Commissioner, the general comments that you made about the importance of confidential discussions between parties, we have nothing to say against. And, in fact, the way in which you described them as being a matter of public policy, is exactly the way in which the cases have discussed them. And if I can just take 30 seconds to read to you what was said in the Supreme Court of New South Wales.
PN2466
MR PARRY: Well - - -
PN2467
MR BORENSTEIN: Just wait a minute.
PN2468
MR PARRY: Well, it is unnecessary debate.
PN2469
THE COMMISSIONER: Mr Parry, if you just allow Mr Borenstein to make his comment.
PN2470
MR BORENSTEIN: The point is this. Mr Walsh J said in the Supreme Court:
PN2471
It is of importance that the rule protecting from disclosure discussing taking place in an endeavour to put an end to pending litigation should in general be applied. But it is after all a rule based on public policy. It cannot be permitted to put a party into the position of being able to cause a Court to be deceived as to the facts by shutting out evidence which would rebut inferences upon which that party seeks to rely.
PN2472
Now, that is the principle we have. We don't want to detract from the ability to have confidential discussions. Our concern was that our position should not be misrepresented, and when it is misrepresented and we want to put it to right, people say, well, you can't ask us about that because that was confidential. That was our sole position. Now, beyond that, if Mr Parry wants to recall Mr Minster, well, if the Commission wants to hear from Mr Minster, that is fine with us.
PN2473
Our problem is that we would then need to recall our witnesses to canvass the same thing again because they didn't have a chance to say what happened at that meeting.
PN2474
THE COMMISSIONER: The other issue here, Mr Borenstein, is this. Hearings on this matter were going to start this week. Where did the initiative come for the meeting? I think it came from the unions side.
PN2475
MR BORENSTEIN: Mr Georgiou.
PN2476
THE COMMISSIONER: The union side rings up the employer side and said let us have a confidential discussion, knowing that one of the issues in this particular matter is, well, a key issue as of last week, is, is there a reasonable expectation that agreement can be reached?
PN2477
MR BORENSTEIN: Yes.
PN2478
THE COMMISSIONER: And all of a sudden the union side in this so called confidential discussion says, well, we might be a bit more flexible on this, this and this, knowing they are coming into the witness box two days later to give evidence on those very matters. And the points they put at the confidential meeting, where the other side may be a bit more relaxed and starts to canvass possible options, are in real contrast to everything they have said before.
PN2479
Because a number of the pieces of evidence from Mr Minster to this point are to the effect that, whenever the raised the 36 hour week and offsets, the union said no offsets.
PN2480
MR BORENSTEIN: Well, that is Mr Minster's evidence.
PN2481
THE COMMISSIONER: But as of Monday it becomes, well, possibly offsets.
PN2482
MR BORENSTEIN: Well, that is Mr Minster's evidence.
PN2483
THE COMMISSIONER: Well, that is right.
PN2484
MR BORENSTEIN: Yes. Mr Georgiou's evidence and other evidence is to the contrary.
PN2485
THE COMMISSIONER: Yes.
PN2486
MR BORENSTEIN: If one accepts Mr Minster's evidence, that is fine, but you have got to assess both sides evidence before you come to a view.
PN2487
THE COMMISSIONER: Yes, I understand that, of course. But, you see, that is, again, a scenario that is troubling me about this Monday meeting.
PN2488
MR BORENSTEIN: But, Commissioner, the only position we took was, that the evidence from Mr Minster and the note that was taken of his evidence yesterday was that he started to say what had been put by the union at the meeting. And my instructions were that what he told you was not correct, and I had sought to question him about that. Now, that is how it all emerged, as the notes show. Now, if Mr Minster had not given that evidence and had not given evidence that was at odds with the outcome of that meeting, without even talking about it, but not given evidence at odds with that, there wouldn't have been an issue.
PN2489
It only became an issue because the evidence he was giving was, on my instructions, at odds with what happened. Now, as the passage in the case says, the Court shouldn't be misled as to the facts by reliance on such a privilege. Now, that is the reason for this whole debate. We don't want to preclude discussions on a confidential basis, we don't want to prevent further negotiations taking place. But it is an odd situation in which this has happened, because at the very same time as the negotiations are taking place the Commission is sitting in judgment on what is happening in the negotiations. So it is a curious situation and, in a sense, unique.
PN2490
THE COMMISSIONER: Yes. Mr Borenstein, I propose to allow Mr Parry to recall Mr Minster, and we will take it from there.
PN2491
MR BORENSTEIN: Yes.
PN2492
THE COMMISSIONER: And I understand your point, you may have to recall some of your witnesses to deal with the evidence given by Mr Minster.
PN2493
MR BORENSTEIN: Yes.
PN2494
THE COMMISSIONER: Good.
PN2495
MR PARRY: Might I say two things, Commissioner. I strongly reject and find offensive suggestions that we or Mr Minster have been improper and, to use the words of my learned friend, he used words this morning such as improper to allow privileges to apply, deceived as to the facts. That is an outrageous suggestion. We strongly refute that sort of suggestion.
PN2496
THE COMMISSIONER: Mr Parry, I understand what you are saying. I took Mr Borenstein to be explaining the previous decisions on issues relating to developments in meetings of the kind we are talking about. I didn't hear Mr Borenstein as saying the parties on your side behaved either improperly or dishonestly.
PN2497
MR PARRY: Well, I don't want to have a debate and we don't want to continue this.
PN2498
THE COMMISSIONER: Yes. But you are making it clear that you reject any suggestion that you were acting either improperly or dishonestly.
PN2499
MR PARRY: Certainly. And perhaps to move on to another totally different issue before calling Mr Minster. When this matter was set down for hearing, I think the programming was set down that the Commission would hear the evidence of Powercor/Citipower, then there would be submissions about the termination of that bargaining period, then there would be the evidence of the next company and submissions in respect of that bargaining period, and then TXU with submissions about that bargaining period.
PN2500
I think that was predicated on some sort of view that the Commission may be in the position at the end of each case to make a decision on each.
PN2501
THE COMMISSIONER: Mr Parry, can I say to you, it wasn't as clear in my recollection as you have outlined. The original proposal was Citipower, Powercor, I think SPI, and then TXU. And then following the general evidence on that there would be the final submissions. But then I suggested, well, is there a possibility of dealing with them in toto as we go, Citipower, Powercor, deal with all the submissions, rule off on the case for Citipower, Powercor, and that would enable me to, if I wished, to make a decision on the evidence for Citipower, Powercor at the same time as we are moving on to the other cases.
PN2502
And it was really left, as I recall, and I am certainly happy to hear any comment from the bar table on that basis, that it could be done one way or the other. But personally probably I would prefer that we deal with Citipower, Powercor in its entirety, and then we move to SPI, deal with that in its entirety, and then we would move to TXU. But I am in the hands of the parties to some extent.
PN2503
MR PARRY: What I was going to propose is that we hear the evidence with regard to Powercor, Citipower, then the evidence with regard to SPI, then the evidence with regard to TXU, then make submissions at the end. Now, the reason for that is, number 1, there is a number of elements of the evidence that are going to be consistent across each, that is, for example, the meeting with Commissioner Merriman, the meeting with the government, the meeting with Mr Pope. I shouldn't have to canvass that in respect of each case.
PN2504
THE COMMISSIONER: On three occasions, yes.
PN2505
MR PARRY: And further, the principles and the law are going to be the same in respect of the matter. There will be submissions made about the facts in each case. I would submit that it might be a more expeditious way of dealing with it if we get the evidence of the three companies out of the way, unless the Commission is of a mind to hand down a decision at the end of one case before moving on to the next one.
PN2506
THE COMMISSIONER: It probably wouldn't be possible.
PN2507
MR PARRY: Well, if it is not possible I think we would prefer to move through the evidence.
PN2508
THE COMMISSIONER: Yes. Could I turn to Mr Borenstein on that one. Mr Borenstein, are you of the same view as Mr Parry as to the preferred way of dealing with the matter?
PN2509
MR BORENSTEIN: We were actually persuaded by your suggestion that if we are going to hear the evidence separately it might be just as easy to make the submissions. As I said, I think when we were timetabling all of this, the argument is not going to be about the law. The argument is overwhelmingly about the evidence in each case. And we were attracted to your suggestion when you made it because of the fact that when the submissions are made the evidence will be fresh in your mind, it will be fresh in the parties minds, and we would be able to focus on it rather than do it in three weeks time.
PN2510
THE COMMISSIONER: Well, we will only now have a few days between the submissions of each of the matters, because we are proposing to sit again on Monday and Tuesday. So in terms of freshness, I am not sure that that is terribly compelling. So I am inclined to go with Mr Parry, if you don't have any objection to that.
PN2511
MR BORENSTEIN: I don't have a strong objection.
PN2512
THE COMMISSIONER: Now, I am relying on my Parry's judgment that this will expedite the hearing, and that is the basis of the way we will proceed.
PN2513
MR BORENSTEIN: Well, can I just say this. We may save a bit of time in terms of the submissions, but the exercise today is going to delay us.
PN2514
THE COMMISSIONER: Yes, of course. Well, let us see how it goes. Mr Minster?
PN2515
MR PARRY: I recall Mr Minster.
PN2516
THE COMMISSIONER: Now, do we need to re-swear Mr Minster in this matter?
PN2517
PN2518
MR PARRY: Mr Minster, was there a meeting for Monday at which you attended?---There was.
PN2519
How did you come to attend a meeting on Monday?---I was contacted, I am not quite sure what time on Friday, by Mr Georgiou, who stated that the unions wanted to have a meeting with us on Monday. Initially he suggested 10 o'clock, but we met at 9.30. He said that this would be an informal, no notes taken, no records kept, off the record meeting.
PN2520
THE COMMISSIONER: Were those words used, Mr Minster, off the record?---Informal, off the record, no notes taken.
PN2521
So were the words, off the record, mentioned?---Yes.
PN2522
Thank you.
PN2523
MR PARRY: What did you say in response to this on the Friday?---I said that I would talk to Brian Sullivan, who I wanted to attend the meeting with me, and I would get back to him.
PN2524
And did you get back to Mr Georgiou?---I got back to him sometime Friday afternoon and suggested the 9.30 time, and that was set up, the meeting was then set from there.
PN2525
And who attended at 9.30?---At 9.30 was Brian Sullivan and myself, and Mark Georgiou and Greg Arnett.
**** KENNETH MINSTER XN MR PARRY
PN2526
What happened at that meeting?---Initially we sort of bantered around about no one having any notebooks, and some jokes were made about whether someone had a tape recorder under the table, sort of a light session at the start, and then we got in, okay, what are we here for, what are some of the things that we want to discuss. And while there were no notes taken, no one opened a notebook, and some of us didn't even have a notebook with us, there was a record taken by way of a screen print from a whiteboard, and the unions kept a copy of that.
PN2527
If I could hand you a copy of this document.
PN2528
THE COMMISSIONER: Whose handwriting is this?---This handwriting is Brian Sullivan's.
PN2529
MR PARRY: Perhaps if, could you read Mr Sullivan's writing, or recollect what he was recording on this note, Mr Minster?---Well, after a number of times, I think two or three, when the unions left the room for a caucus, and Mr Rizzo joined the meeting at 10 o'clock, we talked about what were some of the things that were outstanding.
PN2530
THE COMMISSIONER: So Rizzo was there as well from 10 o'clock, you were saying?---From 10 o'clock, yes.
PN2531
MR PARRY: Yes?---And the unions came back and put a proposition to us on implementation of the 36 hour week, which is the first item listed there. And what it reads is, the agreement term is 11.04 to 31.12.06, that the 36 hour week would be implemented on 30 November 2006, and the wages would be 4.5 per cent per annum, which is the 13.5 over three years that we discussed yesterday. We also, in respect of that, on the other side of it, I think that that is win/wins. And we were looking at working nine hours over four days if people are working away from home, which was put up by Greg Arnett, and from our point we put up three points, which were shift work, the shifts means shift work, afternoon shift for faults, and staggered start and finish times, again, for faults, and rostered day of flexibility across - we initially said across five days, but Greg then modified that to across four days of the week. And the unions then in the middle of the page wanted to re-visit TOIL, which is time off in lieu of overtime.
**** KENNETH MINSTER XN MR PARRY
PN2532
What else was discussed about hours of work at this meeting?---There was nothing else at this meeting discussed about hours of work.
PN2533
What did the company say in response to these proposals that were put?---We said to the union that we would consider this proposal, that we would talk to our management group, and that we would get back to them no later than Friday.
PN2534
THE COMMISSIONER: Friday of last week?---No, Friday of this week.
PN2535
This week?---Yes.
PN2536
MR PARRY: Now, what are the other marks on this piece of paper, no extra claims?---No extra claims, that was an issue that was canvassed yesterday, and the no extra claims clause is one that was drafted for us and sits in the current draft agreement, and there is also one underneath that. The agreement is in place until replaced. And I think I mentioned yesterday that the unions were considering our no extra claims clause, and we were considering the agreement is in place until replaced clause in the duration of the agreement.
PN2537
What significance do the ticks next to those have?---I think that the ticks mean they they are okay, that they have pretty much been resolved, or no more discussions needed on them.
PN2538
What about employment agreements/contracts?---Well, the words on the side are to use as a guide for - the unions claim was that the employees on employment agreements or contracts shouldn't get any less of a pay increase than is stated in the enterprise agreement. And the words that were talked about were that we would draft a clause which said that the enterprise agreement increases would be used as a guide for increases for people on employment agreements or contracts.
**** KENNETH MINSTER XN MR PARRY
PN2539
Now, there is reference to below, employment agreements, contracts, apprentices. I can't read the next word. Company plan?---That is company plan, and that was requested by Mr Arnett, and we were to look at the company work plan and the company recruitment plan over the next three years, and bring that along at the next meeting.
PN2540
And what was the NA?---I am not quite sure what that means.
PN2541
That is Mr Sullivan's note, is it?---Yes, that is right.
PN2542
And was there agreement on apprentices reached at this meeting?---No. Because the main claim is to have numbers in the agreement.
PN2543
And below that there is contractors. What is the question mark, what was discussed about contractors?---Pretty much the same as has been discussed at a number of meetings about having words in that both parties can live with. And it was raised with us that although the current agreement has words for subcontract labour or day labour hire, that there should be consultation at the local level, and we should provide figures, and it was put to us that the consultation isn't going on at the local level and that figures haven't been provided for some time. That is what that word means.
PN2544
Was there any agreement reached on contractors at this meeting?---No. No, there wasn't.
PN2545
And below that, TEC/super, then the letter, question mark. What was discussed about that?---This is basing superable salary on the total employment cost of the contracts for people who had motor vehicles in Powercor and for all of the people who were on a defined benefits superannuation fund in Citipower. And what we discussed there was, well, this has already been done. The company doesn't want it in the enterprise agreement. And the suggestion was put that we could have an exchange of letters with the unions that are involved in this issue, that is, APESMA and ASU. But there was no final agreement on whether a letter would be acceptable or not, so I think that is why the question mark is there.
**** KENNETH MINSTER XN MR PARRY
PN2546
And what happened at the end of the meeting?---Well, the meeting just broke up. It went for about an hour and a half. And we said that we would give the position, particularly on the 36 hour week, earnest consideration, and that we would get back to the unions. I contacted Mr Arnett on Monday afternoon and again Monday evening to say, well, we are giving this a bit of thought, probably more than a bit of thought, careful consideration, and asked that the bans on live line work be lifted while we gave this some consideration. And I specified the locations that I would like the bans lifted until we got back to them, at that stage on Friday. Mr Arnett didn't want to remove the bans or suspend the bans for that period of time. We gave this proposition on the delayed implementation of the 36 hour week, we gave this some thought on Tuesday.
PN2547
Who is we?---Brian Sullivan, myself, and some of the EBA steering committee, but not all of them.
PN2548
Yes?---And I got back to Mr Georgiou part way through Monday - sorry, Tuesday afternoon, and told him that while we had considered it, the proposition put up by the unions on the 36 hour week implementation was rejected by the company. We felt that it was still just an implementation strategy. I then rang Mr Arnett and told him the same.
PN2549
When did you ring Mr Arnett?---Straight after I had spoken to Mr Georgiou, which I think was around about two or 2.30 on Tuesday afternoon.
PN2550
Are there any other meetings planned or scheduled at the moment?---There are no other meetings planned or scheduled between the company and the unions.
PN2551
**** KENNETH MINSTER XN MR PARRY
PN2552
MR PARRY: If the Commission pleases, that is the further evidence.
PN2553
THE COMMISSIONER: Thank you, Mr Parry. Mr Borenstein?
PN2554
MR BORENSTEIN: It may be that I won't need to call anybody to respond to this evidence. But I wonder if I could just have till quarter past to get some instructions?
PN2555
THE COMMISSIONER: Yes, of course.
PN2556
MR BORENSTEIN: And then indicate whether we need to or not.
PN2557
THE COMMISSIONER: We will adjourn for 10 minutes.
SHORT ADJOURNMENT [10.02am]
RESUMED [10.15am]
PN2558
THE COMMISSIONER: Yes, Mr Borenstein?
PN2559
MR BORENSTEIN: Commissioner, I would seek leave to cross-examine Mr Minster, and subject to that I don't anticipate seeking to call any people directly on this matter.
PN2560
**** KENNETH MINSTER XXN MR BORENSTEIN
PN2561
MR BORENSTEIN: Mr Minster, do you have a copy of P9 with you?---I do, yes.
PN2562
When you were going through the first of the issues, that is the 36 hour week, you say that the items on the left, the term of the agreement, date for the introduction, was put forward, and then on the right hand side of the page there were some suggestions made from the unions side and some suggestions made from the company's side as to flexibilities in relation to having the 36 hour week, correct?---Yes.
PN2563
Yes. And you were going to go away and have a think about whether that was something that was worth pursuing; is that the position?---That is right.
PN2564
Now, in relation to the other items on that document, on that list on the document, items like no extra claims, contractors, and so on, there were suggestions put which you were going to think about in terms of, for example, the no extra claims and the ongoing operation of the agreement. You have told us you were going to think about the unions proposal about the agreement's duration, and they were going to think about your no extra claims clause, and there was some discussion, wasn't there, that maybe if you gave on one they would give on the other?---That is correct.
PN2565
Yes. And then in relation to, you have told us, in relation to the employment contracts some words were going to be developed, and that is still under consideration. In relation to the apprentices you have told us that the company was going to provide some information to the unions about the company plan; yes?---That is right. Apart from the apprentices, the others aren't seen as big issues.
PN2566
No. Okay. And in relation to the apprentices you were going to provide some information to the unions to assist them in appreciating your position?---That was the intention.
**** KENNETH MINSTER XXN MR BORENSTEIN
PN2567
Yes. And has that been done?---No.
PN2568
No. And when is that going to happen?---I am not sure about that.
PN2569
Okay. Now, you left the meeting on Monday, saying that you would take this matter back to the steering committee?---Yes.
PN2570
And that you would give an answer no later than Friday?---That is what I said earlier.
PN2571
Okay. And at the time when you had this meeting your expectation was that on the Tuesday the TXU case would commence in the Commission?---Yes, although I wasn't sure about that.
PN2572
Yes. But you certainly didn't have any expectation that your case was going to start yesterday?---First up?
PN2573
Yes?---No.
PN2574
And so you felt you had some time to consider these matters before you were confronted with having to come to the Commission?---Well, we were looking at the matters irrespective of what this hearing was going to do.
PN2575
Well, you actually attended at the Commission on Tuesday morning, did you not?---That is right. No, sorry. I am losing track of time. No, I didn't attend the Commission on Tuesday morning, no.
PN2576
You say that you met with Mr Sullivan and some other persons on Tuesday morning; is that right?---The meeting was after hours on Monday, and then we met again briefly on Tuesday just before lunch.
**** KENNETH MINSTER XXN MR BORENSTEIN
PN2577
Who did you meet with on Monday night?---That was with Mr Sullivan, Mr Breheny, who is the CEO, and Mr Sturgess.
PN2578
And on Tuesday?---That was with Mr Sullivan, myself and Mr Breheny.
PN2579
But that is not the whole of the steering committee?---That is not the whole of the steering committee, no. I mentioned that earlier, it was only part of the steering committee.
PN2580
Yes, I understand that. There are nine people on the steering committee, according to your evidence the other day?---Of that order.
PN2581
Of that order. All right. Now, you say that you rang Mr Arnett on the Monday evening, was it, or was it the Tuesday?---No. I spoke to Mr Arnett on the Monday afternoon and again on Monday night.
PN2582
Right. And this was about the bans?---This was about the bans, asking that the - I asked Mr Arnett on Monday afternoon if he would consider lifting the bans in four locations, and then Mr Arnett said that he would call me back. I hadn't heard from him by 8.30 on Monday night, so I called him.
PN2583
And what difference did it make to you in terms of assessing the viability of discussions around the 36 hour week, whether or not Mr Arnett lifted those bans?---It didn't make any difference.
PN2584
So that is unrelated?---It was unrelated. The reason that I was asking Mr Arnett to consider lifting the bans was so that we could perhaps avoid having to implement a no work no pay in four locations at some point this week.
PN2585
Okay. Now, when you met on the Monday you said to the union people that you would take this matter back and give it serious consideration in the steering committee?---Yes. I am not sure whether I mentioned steering committee at that point.
**** KENNETH MINSTER XXN MR BORENSTEIN
PN2586
I see. All right. Why was it that the matter didn't go back to the full steering committee?---One reason was probably shortness of time, unavailability. I didn't go into that. We took it to people who were available on Monday night, and that was seen to be enough.
PN2587
I see. When you say shortness of time, you told them that you would get back to them by Friday?---I did. And that was probably thinking that we might be able to get the bans lifted. But it wasn't - the time that I thought we would need to consider it wasn't there. We were initially going to prepare a paper to go to a board meeting on Thursday, but once the people that we met with on Monday didn't believe that there was enough to take to the board to make a suggestion on any change in our position, then the time wasn't needed because the board wasn't needed to consider it.
PN2588
But the only people that were at this meeting made the decision, that weren't at the negotiations. The only additional person was Mr Quinn, isn't it?---Sorry?
PN2589
Mr Breheny?---Mr Breheny and Mr Sturgess.
PN2590
And Mr Sturgess?---Yes. But if that is what we need to make a decision in the company, that is what we will use.
PN2591
What I am getting at is, when you had the discussions with the unions you felt that it needed serious consideration, and you met on Monday afternoon, and only two other people joined the group, so presumably you and Mr Sullivan thought the matter was seriousness, and yet with the addition of these other two people the matter was treated as being not worth pursuing?---Well, because of - when we analysed it properly it was viewed as being just another implementation strategy rather than anything else.
**** KENNETH MINSTER XXN MR BORENSTEIN
PN2592
But is that correct, Mr Minster? Because what the document seems to show, that what was put on the agenda for discussion was things like shifts, staggered starts, and so on. Are they implementation matters too?---They were some of the things that we just put forward as things that we might like to talk about at some point if we were going to implement the 36 hour week with proper offsets.
PN2593
That is right. And so you went away with the unions' knowledge, going to assess whether you would talk about the 36 hour week in the context of these other matters?---That is right.
PN2594
Well, these other matters aren't implementation matters, are they?---Which ones?
PN2595
The ones that you have proposed, shifts, staggered starts, RDOs?---Well, they would be if we were going to give any serious thought to implement it. They would have to be the sort of trade offs, and that is not an exhaustive list, that we would need to consider.
PN2596
No. But that is right. But I am just puzzled by the reason that you say you gave for just stopping the discussion after Monday, where you say, well, the unions have only just put an implementation proposal to us. And what I am putting to you is, that on this document there seems to be more than just implementation issues that are up for discussion?---Well, we didn't see it that way.
PN2597
THE COMMISSIONER: Sorry, Mr Borenstein.
PN2598
Mr Minster, was one of the two people who attended the meeting in addition to yourself and Mr Sullivan, the CEO?---The CEO, yes.
**** KENNETH MINSTER XXN MR BORENSTEIN
PN2599
Yes, he was. Good. And when you itemised those three issues of shifts, staggered start times and RDO flexibility, did the unions agree in any way that, yes, they would be prepared to discuss those things, if I could just generally refer to them as part of a trade off package?---My recollection is that the shifts and staggered starts are really ETU issues, and Mr Arnett said that he would need to take them back to the areas, which we had raised them in the past, and the RDO flexibility we were looking at five days a week, and Mr Arnett said that he would give some thought to Monday, Tuesday, Thursday, Friday.
PN2600
So their response wasn't, well, they're off the table, we're not prepared to consider them?---That is right.
PN2601
But they said, we would have to talk to others about them?---Yes.
PN2602
Yes, thank you.
PN2603
MR BORENSTEIN: So then, Mr Minster, finally, can I suggest to you that when it became apparent that your company's case was going to be heard this week, that that was the real motivator for your point blank rejection of any further discussions on this document?---No, that is not the case. It was viewed by the people that looked at it as being just another way of getting the 36 hour week within the term of this agreement, and that is what we weren't prepared for.
PN2604
Just another way, but being prepared to talk about shifts and staggered starts and RDOs. That is not just another way, is it?---Well, the point is, we have raised these issues not in the context of the enterprise agreement on other occasions and met with a flat rejection, so we weren't given any great confidence on that.
**** KENNETH MINSTER XXN MR BORENSTEIN
PN2605
This would be the first time, wouldn't it, that your company has put forward any aspects in the context of the EBA negotiations and the claim for 36 hours, this is the first time your company has actually articulated the sort of trade offs that you want?---This is the first time we have put some of these things up, but we have repeatedly said that we wouldn't require significant trade offs if we were to implement a 36 hour week.
PN2606
Yes. But this is the first time you have put them forward?---This is the first time.
PN2607
And the unions have said, okay, well, you think about it, tell us if you're prepared to talk further, and tell us what you think. And you have come back and said, well, we just don't want to talk about it?---We have said that we have no interest in implementing a 36 hour week, and that's it.
PN2608
Even if you get the trade offs?---Well, at this point we don't see that the trade offs would have been achievable, and we decided that there was nothing in it for us with a 36 hour week.
PN2609
So you decided they wouldn't be achievable, this having been the first time that you have put them forward, and before the unions have come back with a definitive answer you have made that judgment?---That is right.
PN2610
And you have called off the whole negotiation on that basis?---We have rejected the position that the union has put forward.
PN2611
And quite by coincidence it happens on the day before your case is about to start?---Not by coincidence. The union asked for the meeting on that day, knowing well that the case was coming up.
PN2612
And you said you would give them an answer by Friday, and then all of a sudden the answer comes within 24 hours?---And we gave them an answer before Friday.
**** KENNETH MINSTER XXN MR BORENSTEIN
PN2613
And it comes within 24 hours and it comes, doesn't it, Mr Minster, so that you could come into this Commission and say, we have no outstanding negotiations with the union. That is the real reason you rejected it?---No, it's not the case. We gave them an answer because that was when we made our decision. And we could have held off until Friday and given the same answer.
PN2614
Well, that would have been forensically bad for you though, wouldn't it?---Well, not necessarily.
PN2615
No. You weren't concerned that you would then have to admit in this Commission that there are still ongoing discussions with the union?---No, I wouldn't, because I don't think there were ongoing discussions with the union. There has been no further meeting set up to discuss this issue.
PN2616
Because we were waiting on the answer from Monday?---There were no meetings set up even when we left the thing on Monday.
PN2617
Thank you, Mr Minster.
PN2618
THE COMMISSIONER: Mr Parry?
PN2619
PN2620
MR PARRY: You were asked questions about shifts, staggered starts, and so forth, and you said they were raised on other occasions. What other occasions were you referring to, Mr Minster?---We had meetings with the ETU in Geelong, I think it was just before Christmas or just after, but let's say it's just before Christmas, where we raised the matter of staggered start times. I am not sure whether we've raised shifts at that meeting, but we have talked about
**** KENNETH MINSTER RXN MR PARRY
afternoon shifts on other occasions to try and reduce overtime. But to try anything new and to look at any change to the current span of hours or the current normal working hours, was met with rejection. We have raised these before.
PN2621
Rejection by who?---By the ETU.
PN2622
I have nothing further.
PN2623
THE COMMISSIONER: Mr Minster, just a question. You currently work a 37-1/2 hour week?---That is right.
PN2624
And how frequently are the RDOs? Are they fortnightly or monthly?---Most people work a nine day fortnight.
PN2625
A nine day fortnight. And are the RDOs confined to one of the Mondays or Fridays?---Mondays or Fridays.
PN2626
Yes. And that is the flexibility you are looking for?---Within a work group they can work what we say, the first Monday or the second Monday, or the first Friday, second Friday.
PN2627
So on each occasion they will get a long weekend?---That is right.
PN2628
And the company probably was looking for the RDOs to be staggered throughout the week?---That is right. So it would give us a larger work force at any one day.
PN2629
Yes, thank you.
**** KENNETH MINSTER RXN MR PARRY
PN2630
MR PARRY: I have nothing further, Commissioner.
PN2631
PN2632
PN2633
MR BORENSTEIN: Mr Arnett, I just want to ask you a few questions about matters that arose in cross-examination yesterday. You were asked a number of questions by Mr Parry about the apprentices and the claim for apprentices, and you said that the claim was for a given ratio of apprentices to tradesmen across the operation of the companies; do you recall that?---That is right.
PN2634
Can you tell the Commission, are the companies operations carried out at various locations and depots?---Yes.
PN2635
And do each of them vary in size?---They do, yes.
PN2636
Do they vary in the number of tradesmen at each place?---They do.
PN2637
Do they vary in terms of the types of tradesmen at each place?---Yes, they do.
PN2638
So can you tell the Commission how it is that the union envisages or envisaged having a ratio that would apply across the operation?---Well, we would need to have the different ratios, I suppose, at different depots. There are larger depots, there are smaller depots, there are other sections of the business where we would like to have apprentices such elec plant and test, which is electrical fitters, which is based at two or three of the major depots. But we would need to know the demography of all those areas, if you like, and be able to then sit down and say, well, this number apprentices would be applicable at this place. Then we would be getting towards the ratio that we were seeking in negotiating the enterprise agreement.
PN2639
So when you say that the ratio that you are aiming for is one that is across the whole operation, does that not mean - are you not intending to say that it will happen at every location?---That is right, yes. The overall numbers of apprentices is what we were looking for, you know, contingent on the amount of tradespeople, but, you know, as you say, they are in varying areas and varying parts of the business.
**** GREGORY ARNETT RXN MR BORENSTEIN
PN2640
Now, Commissioner, I am not sure that I need to have leave, but just to avoid any debate, there is a reference to - and there was some evidence given by Minster about apprentices in relation to P9, and since it is connected I was wondering if I might have leave to ask Mr Arnett about that?
PN2641
THE COMMISSIONER: Yes, go ahead.
PN2642
MR BORENSTEIN: In that same vein, Mr Arnett, you heard Mr Minster give evidence that at the meeting on Monday the company indicated that it would prepare for presentation to you the company's plan in terms of recruitment of apprentices; do you recall that?---I recall that.
PN2643
Would the receipt of that document assist the union in advancing its negotiations on this issue?---Well, it certainly would. But this is the first time that I have actually had that information from the company, that they actually have a plan further than this year. What has been told to me and the others at the meetings is that they only - it is a budgetary thing and they can only do that year on year. It is just the first indication that there has been a comprehensive plan of the recruitment processes into the future.
PN2644
Okay. Now, do you have with you in the witness box the notes of the various meetings that were produced by Mr Minster?---Yes, I think I have pretty much got all of them, yes.
PN2645
This is exhibit P2, Commissioner.
PN2646
I wonder if you could have a look at the notes for 28 January?---Yes.
PN2647
That is a two page document, and on the second page there is an item under the heading, 36 hour week?---Mm.
**** GREGORY ARNETT RXN MR BORENSTEIN
PN2648
You were asked by Mr Parry to comment about the accuracy of that note, and your evidence was, as I noted it, that you were having difficulties in discussions with the company over the 36 hour week. This is on 28 January. Can you tell the Commission what difficulties you were referring to when you gave that evidence?---Basically the company was just, you know, bluntly not wanting to negotiate anything around the 36 hour week.
PN2649
At that stage had the question of trade offs been raised?---The proposition of trade offs had been mooted by the company from very early days, but nothing had been forthcoming about anything to discuss in regard to any trade offs.
PN2650
Is it your recollection, or do you have any recollection whether the company had been asked by the unions by that stage, that is, 28 January, to provide a list of the trade offs they were looking for?---I think in a number of occasions we had said, well, you keep saying that, but you never come up with anything.
PN2651
Okay. Now, could I ask you to turn to the notes of the meeting of 13 February. You were asked some questions about the item, contract labour?---Mm.
PN2652
And that is the position on 13 February. You were in the Commission yesterday, were you not, when Mr Minster gave evidence about drafts having been provided and being presently under consideration?---Yes.
PN2653
Is that the position as you understand it?---That is the position as I understand it, yes.
PN2654
Now, you were then asked some questions about the meeting that took place with Mr Pope on 24 February of 2004?---Yes.
PN2655
There are no notes to this. Can you just remind us please, at that meeting all of the unions involved were present?---All the unions, yes, except APESMA.
**** GREGORY ARNETT RXN MR BORENSTEIN
PN2656
Except APESMA. And in relation to the various companies in the electricity industry, which of those, or how many of those were also involved in the meeting?---All the companies were involved as well as the representatives from the National Electrical Contractors Association representing contractors within the industry.
PN2657
Now, of the major companies, those not represented by NECA, how many of them were there?---All of them.
PN2658
What is the number?---Well, I suppose you could call it five or six, whichever way you look at the enterprise agreements or the companies.
PN2659
Now, you gave evidence, in answer to Mr Parry, that you had made the statement in respect of the issue of 36 hours, that the union wasn't prepared to look at trade offs; do you recall that?---Yes.
PN2660
You were then asked some questions about notes that Mr Minster produced at the meeting on 1 March, where, in the first dot point about halfway down the page, there is a note that - do you have that, 1 March?---No. It's slipped out.
PN2661
We will see if there is another there for you, Mr Arnett. On the first page, halfway down, there is a note about Mr Georgiou reporting back on some items to the meeting on behalf of the unions, and you will see the first item is the 36 hour week, and it says the only interest is in how it is to be implemented, and offsets are not to be considered. And you gave evidence that that wasn't a correct statement of the union's position at that meeting, not a correct record of the union's position at that meeting. Now, can you tell the Commission how you reconciled the statement that you made to the Pope meeting on 24 February with your evidence about this particular record being inaccurate?---Well, I suppose the Pope meeting in February was, you know, in my consideration, nothing to do with negotiations. It was to do with really having the parties together. And when I say the parties, it was all of the parties, to see if there was - to put their positions of where they were at the
**** GREGORY ARNETT RXN MR BORENSTEIN
time, to ultimately make sure that the individual negotiations were going to continue with all of the companies. And I think coming out of that meeting it was agreed by everyone that we would continue on with the company negotiations as we had been for the, you know, previous whatever time. The meeting was - many people at the table. I think that, you know, there was a bit of talking to one company and talking to another company, and them talking back and them talking amongst themselves. So really I think it was a little bit of putting our solid positions, if you like, not really our negotiating positions.
PN2662
At that time, that is, the time of the Pope meeting, were you in negotiations with all the different companies?---Yes, negotiations were continuing with all the companies, and I think meetings had sort of, you know, had their dates in the diary.
PN2663
Okay. And were the negotiations with each of the companies being conducted separately?---Absolutely, yes.
PN2664
And had you reached different stages in negotiations with the different companies?---Different companies were at different stages at that point in time, yes.
PN2665
THE COMMISSIONER: Mr Arnett, were other companies also seeking trade offs for the 36 hour week if they were being prepared to discuss it, or was it just Citipower and Powercor?---It is probably a general theme, if you like. I am not involved in any of the other negotiations, but, you know, it is a general theme I would think.
PN2666
MR BORENSTEIN: Now, finally, you were asked at the end of your meeting whether it was the position of the union, your union, that any final agreement must include a clause for 36 hours and must include a ratio for apprentices, a designated ratio for apprentices, and must include a contractors clause requiring them to have an enterprise agreement. And your answer in relation to each of those was the words, that is the claim?---Mm.
**** GREGORY ARNETT RXN MR BORENSTEIN
PN2667
Now, what do you mean when you use that phrase, that is the claim, when you gave that evidence?---Well, that is the claim that was initially put on all of the companies, this company as well. You know, they have put certain claims to us, if you like. Everything, as far as I am concerned, at the negotiating table is up for consideration. You put a log of claims, you negotiate, at the end of the day you come up with an agreement. It has happened in every other case I have been involved in enterprise negotiations, and I am sure it will happen in this case as well, that we will ultimately reach agreement on all the issues that are on the table at the moment.
PN2668
Let me take one example. In relation to the ratio for apprentices, the claim that you make in this case was for a ratio of three to one?---That is right.
PN2669
Is that the same claim that you have made on all the other power companies initially?---It is the same claim, yes.
PN2670
And have you been able to progress that claim with any of the other companies?---Yes. In two companies we have progressed to the point of agreement with those companies.
PN2671
And has that agreement involved a variation on the three to one theme?---It has in both cases, yes.
PN2672
Thank you. That is all the re-examination, Commissioner.
PN2673
THE COMMISSIONER: Mr Arnett, just to return to this 36 hour proposition for a moment. The company has given evidence that on every occasion the issue of trade offs for a 36 hour week was discussed. The unions in one way or another basically said, we will not accept any trade offs. The unions in response have said that the company has been requested, when they have mentioned trade offs, well, provide us with a list of things which you believe would be trade offs that could be considered. And the company has refused to
**** GREGORY ARNETT RXN MR BORENSTEIN
provide a list. Is that basically the way you see the negotiations to date, that the unions have not accepted in the discussions that there will be any trade offs, but have asked the company to provide a list of trade offs, if that is their view, that they are only prepared to even consider the possibility of a 36 hour week if there are trade offs. And Mr Minster has said, well, one of the trade offs could be no wage increases for several years?---Yes. We have challenged the company to bring some trade offs to the table if they wish to do so. Our position, our negotiating position has always been that we don't believe that we should have to fall with any trade offs, if you like, in the conditions, because of the way that the work force has changed significantly since the last agreement.
PN2674
Yes. Your argument is that there had been productivity gains achieved by the company, and that should justify not only wage increases but also other things?---That is right.
PN2675
I understand your argument. If the company was to produce a list of trade offs, what would the unions do?---We would discuss those trade offs. We would discuss them and point out, well, you know, what are you gaining out of that in the first place, and what impact that would have on the membership.
PN2676
Is it conceivable that some of those trade offs could be acceptable?---It is conceivable, yes.
PN2677
Okay, thank you.
PN2678
MR BORENSTEIN: May Mr Arnett be excused?
PN2679
PN2680
PN2681
MR BORENSTEIN: Mr Mighell, is your full name Dean Mighell?---Yes, it is, Dean Jonathan Mighell.
PN2682
And your address is 516-520 Swanston Street, Carlton South?---That is correct.
PN2683
And you are the Branch Secretary of the Southern States Branch of the Electrical Division of the CEPU?---Yes, that is right.
PN2684
Mr Mighell, have you prepared a witness statement of 18 paragraphs for presentation to the Commission?---Yes, I have.
PN2685
Do you have a copy with you?---No, I don't.
PN2686
Can we provide you with one. Have you in recent times had the chance to read that document again?---Yes, as late as yesterday.
PN2687
And can you tell the Commission whether the contents of that document and the opinions that you have expressed in the document are true and correct?---Yes, they are true and correct.
PN2688
PN2689
MR BORENSTEIN: Mr Parry rightly prompts me that two of the paragraphs are unrelated, and they are paragraphs 12 and 13, and perhaps the tender can be noted as excluding them.
**** DEAN JONATHAN MIGHELL XN MR BORENSTEIN
PN2690
THE COMMISSIONER: Yes.
PN2691
MR BORENSTEIN: Now, do you have that document, Commissioner?
PN2692
THE COMMISSIONER: I do.
PN2693
MR BORENSTEIN: Now, your document generally outlines your experience in negotiating enterprise agreements in the power industry, Mr Mighell, and I won't trouble you to go through all of it in detail. But I wanted to ask you some questions about the meetings that took place in February, and which you refer to at paragraph 8 of the statement. You refer there to the meeting with Mr Neil Pope. At that meeting - I am sorry, perhaps a shorthand way of doing this. You were in Court when Mr Arnett was giving his evidence just a few moments ago about the meeting and who was present at the meeting?---Yes.
PN2694
You were at the meeting with Mr Arnett?---Yes, I was.
PN2695
Yes. Is Mr Arnett's account of who was there and the way in which the meeting was conducted correct?---Yes, it was.
PN2696
All right. Do you recall Mr Arnett saying at that meeting that there would be no trade offs agreed for the 36 hour week?---I don't specifically recall that, no, I don't.
PN2697
All right. Did you make a statement to that effect?---I don't believe I did, but certainly in our outline of the position the government, through Mr Pope, wanted to know the union's position, and we emphasised the importance of all of our key claims.
**** DEAN JONATHAN MIGHELL XN MR BORENSTEIN
PN2698
Did you have a view as to the nature of this meeting in terms of it being a negotiating meeting or some other form of meeting?---I think it was a little bit of the state government wanting to be seen to do something and to react to the media fanfare that had been about. They had obviously been concerned about some of the bans that have been placed on shopping centres and the Grand Prix, and those sorts of things, and I think they needed to be seen to act. I think that they would have liked to have brought the parties together, and we sat and had a bit of a saviour rattling from their side and a saviour rattling from our side, and a couple of breaks. Basically I think the most important thing we left that meeting with was the commitment by all parties to continue the company by company negotiations.
PN2699
When you say there were a couple of breaks, what are you referring to?---Basically just a chat with the employers, then a separate chat with the unions, those sort of things.
PN2700
I see. Breaks in the session?---Yes.
PN2701
PN2702
MR PARRY: Mr Mighell, has your union passed resolutions about, in Victoria, about achieving the 36 hour week?---I think if I - it would go back, my recollection, it goes back before my time. I think we have had a standing policy for a 35 hour week in our union probably since the 70s, but I would have to stand to be corrected on how long that has been around. Certainly before my time as an official, and I started in '88.
PN2703
Any recent, within the last two years, resolutions?---A state council? No, I don't think so, not that I can recall.
**** DEAN JONATHAN MIGHELL XXN MR PARRY
PN2704
The 36 hour week has been actively pursued by your union in the electrical contracting area?---Very much so.
PN2705
Very much so. Very aggressively so?---I wouldn't say aggressively. We have just concluded about 700 certified agreements so far without a day's lost time, so I would say very cleverly through negotiation.
PN2706
The 36 hour week has been the subject of a major dispute at Smorgons?---No. The subject of the major dispute at Smorgons was an enterprise agreement which included a 36 hour week, which, at the Smorgons example, I have got to say isn't delivered within the life of the agreement we have reached out there. Again, it is one of those scenarios where you have the best expectations and a great wish list, and end up with something perhaps less than you would really want.
PN2707
The major cause of the ongoing dispute at Smorgons was the pursuit of a 36 hour week, wasn't it?---No. The major dispute at Smorgons was for an enterprise agreement which, amongst other things, we'd have loved to have achieved a 36 hour week within the life of that agreement, and we did not.
PN2708
Do you accept that the pursuit of a 36 hour week has been a big ticket item for the ETU through 2001 and 2002?---I would say it has been a big ticket item and a very important campaign for us since the 35 hour week campaigns of the 70s, but I would say we have put far more emphasis on that in this branch of the union since '95 in just about any industry where our members.
PN2709
But with regard to the electrical contracting industry, the pursuit of 36 hours has been most active in the last two years?---No.
PN2710
You don't agree with that?---No, I don't, no.
**** DEAN JONATHAN MIGHELL XXN MR PARRY
PN2711
Okay. Now, you have been involved, you say, with a strategy for the negotiations. Can I take it that you mean the strategy for the negotiations in the power distribution industry?---In the light of this particular sworn affidavit, yes.
PN2712
Right. And you are presumably conscious that the log of claims being pursued is the same across the various power distribution companies?---Yes, I am.
PN2713
And that is a deliberate decision by the union the pursue identical claims across the companies, isn't it?---I think our members across all of the companies have a fairly similar expectation.
PN2714
Yes. And the bargaining notices that have been produced are identical across the power distribution companies?---I would take your word for it that they are, yes.
PN2715
Now, you haven't been directly involved in any of the meetings, as I understand it, apart from attending the meeting with Mr Merriman and Mr Pope and Mr Theophanous?---That is right, I haven't sat down directly with the companies.
PN2716
Why did you attend the meeting with Mr Merriman?---Because Mr Merriman rang me and asked me to.
PN2717
And just because Mr Merriman rang you and asked you, you decided to attend?---I think - well, two things. One, I have the greatest respect for that person and his role, and I think if the Victorian government asks you to attend a meeting, then you are obligated to attend.
PN2718
It is an important thing to attend these meetings, isn't it?---Well, for my union at that particular point in time, I thought that I had been asked to attend, and that I should.
**** DEAN JONATHAN MIGHELL XXN MR PARRY
PN2719
THE COMMISSIONER: Which meetings are you referring to, Mr Parry?
PN2720
MR PARRY: Sorry. The meeting with Mr Merriman, firstly. That was an important thing to attend that meeting for your union, wasn't it?---Out of respect for Bob, in particular, yes.
PN2721
Well, you didn't go out of respect for Bob, did you? You went because it was an important meeting?---No. I would tell you - and I have just given that answer, and I will give it to you once again. My primary meetings, if Bob Merriman asked me to go somewhere, and Bob has a great role in industries where our members work, including the Building Industry Consultative Council, and I believe that Bob Merriman would have had every intention of trying to do something to break a deadlock in this dispute. So him calling me to a meeting, yes, it counts for a lot.
PN2722
You knew at that stage there was a deadlock, didn't you?---No, it wasn't a deadlock.
PN2723
It wasn't a deadlock. So when you just said, you used the words deadlock, you are not of the view there was a deadlock at that time?---A deadlock was really referring to the industrial bans that were in place, particularly, causing the grief to the government.
PN2724
Mr Mighell, one doesn't use the word deadlock in respect of industrial bans, does one?---Well, if we're at a position where - yes. Well, that is exactly the words, Mr Parry, I used in respect to an industrial ban.
PN2725
I suggest that the term deadlock is used in respect of industrial negotiations to demonstrate that each party have taken positions in which they're locked on?---I appreciate your suggestion, but they are my words, and I will place my interpretation on it, and hopefully I have clarified that for this Commission.
**** DEAN JONATHAN MIGHELL XXN MR PARRY
PN2726
All right. You attended this meeting with Mr Merriman, and the parties were asked to outline their positions?---Yes, they were.
PN2727
Presumably that is a fairly serious in a proceeding before a man of Mr Merriman's stature?---It is a serious stage? I thought - - -
PN2728
It is a serious matter, outlining the company's and the union's position, isn't it?---I don't know how serious it is, but I think it's a damn fine starting point.
PN2729
You wouldn't want to mislead Mr Merriman, would you?---I would never mislead Mr Merriman.
PN2730
And at that meeting your union said, we want the 36 hour week and there will be no trade offs, didn't they?---At that meeting we had a number of conversations with Mr Merriman, some in front of the companies, and some privately with Mr Merriman.
PN2731
Do you accept that in front of the companies and in front of Mr Merriman your union's position was 36 hours and no trade offs?---I don't accept that specifically. I don't recall that if it was said, but Mr Arnett does.
PN2732
It may have been said, but you don't recall?---Not specifically I don't. But we very clearly indicated we wanted the 36 hour week.
PN2733
Yes. And evidence has been given in this Commission that Mr Hayes said no trade offs for 36 hours, you've already got the productivity improvements. He may have said that, may not have, you don't recall it?---I don't specifically recall. I accept that if he said it, fine.
PN2734
Now, there were breaks in this meeting with Mr Merriman. It followed a normal conciliation stage, didn't it, that is, breaks and discussions?---Yes.
**** DEAN JONATHAN MIGHELL XXN MR PARRY
PN2735
And as you understood that meeting, it was an attempt to see if there could be progress made on the negotiations?---I would have hoped that that was the intent. I somehow think the government was doing a little bit of knee jerk reaction to some of the media attention the dispute had received, but I think Bob Merriman, as an individual, if he could have assisted the parties, would have tried to do that.
PN2736
And at the end of that meeting the position was that no progress had been made on the negotiations, wasn't it?---I think that is fair to say.
PN2737
Yes. Now, there was then another meeting a day or so later, I think you met with Mr Theophanous, did you?---Yes, we did.
PN2738
Right. Why did you attend this meeting with Mr Theophanous?---I think that his office had asked me to attend. Normally in dealings with the government I will attend with the officials, in dealings with ministers or those sort of people.
PN2739
Your statement refers to this meeting with the Victorian Minister for Energy, and you say, I think it is in paragraph 8 of your statement, that parties return to meet with the Victorian Minister for Energy. Wasn't it the position that the meeting with the Victorian Minister for Energy was held with each party separately?---Yes. We didn't meet with the minister with the employers there, that is right.
PN2740
No. So when you refer to, this was a follow up meeting to report back on the bans of the ASU and to negotiate as well, what negotiation occurred at that meeting?---With the minister about - no, nothing in particular with negotiations as in conditions of employment on the EBA. Our meeting with the minister made it fairly clear about the government's position about the bans and limitations, their concern for how that affect the public, and that was really the negotiations that we had to conduct with the minister and his people.
**** DEAN JONATHAN MIGHELL XXN MR PARRY
PN2741
You attended a meeting around this time that Mr Pope organised?---Yes.
PN2742
Were you aware that Mr Pope had been acting as a mediator in some of the negotiations with the parties?---No, I wasn't.
PN2743
Why did you attend the meeting with Mr Pope?---For the same reason I attended with Mr Merriman.
PN2744
That is, you had respect, and you thought it might be of some assistance?---Yes, of course. If there is a chance of some progress you take it.
PN2745
Right. And, again, I suggest you, in this position, in this meeting with Mr Pope, the position advanced by your union was, any resolution had to involve 36 hours and there were to be no trade offs?---No, I don't recall that ever specifically being said at the meeting with Mr Pope. I did get there late. By the time I got there the parties had been in a break. Whether it was said before that or not, I don't know.
PN2746
It might have been said when you weren't there, you don't know. After you turned up you don't recall whether it was said?---I don't believe it was said at all. I believe Mr Pope, in his private discussions, his separate discussions with us, knows full well the reality of industrial relations, and that all of these claims, be it 36 or otherwise, are subject to negotiation.
PN2747
If it had been said at that meeting that any deal had to include 36 hours and no trade offs, that wouldn't have been any surprise to you at that time, would it?---Well, I don't know whether we would be surprised or not. If we say things in front of employers and hold a strong position in front of employers, that is our cherished holy position, and we have done that 100 times, and the other side has done it too. The reality is that at some stage people reach an agreement. Whether it was done at that stage or not, I don't know. I don't specifically recall it ever being said no trade offs.
**** DEAN JONATHAN MIGHELL XXN MR PARRY
PN2748
And, again, this meeting followed a course where there was breaks?---Yes.
PN2749
Discussions with the parties separately involving Mr Pope?---Yes.
PN2750
And, again, no progress in the negotiations was made, was it?---I don't recall anything specifically being negotiated at any depth in these meetings either with Mr Merriman or Mr Pope. It was important for us though that they serve some purpose. And the key outcome that I insisted on in that meeting was that there be a commitment to ongoing negotiations, and that was readily accepted by all parties.
PN2751
I might hand you a document, Mr Mighell. I think it is exhibit P7 in these proceedings. I will see if I have a spare copy. Have you seen that document before?---Yes, I have.
PN2752
Did you draft it?---No, I didn't draft it.
PN2753
You have got your name at the bottom as, for more information ring State Secretary, Dean Mighell?---Yes.
PN2754
Presumably you were familiar with its contents before it went out?---Yes.
PN2755
And this was from a meeting on 4 February, the biggest mass meeting in the power industry since privatisation?---Yes, it was fantastic.
PN2756
A fantastic meeting?---You should have been there.
PN2757
I think my membership has expired. Do you agree with the biggest mass meeting in the - - -
**** DEAN JONATHAN MIGHELL XXN MR PARRY
PN2758
THE COMMISSIONER: You may not be financial, Mr Parry.
PN2759
MR BORENSTEIN: He is very financial, we don't have to worry about that.
PN2760
MR PARRY: They will never get my address. The back dues would be too big.
PN2761
The biggest mass meeting in the power industry since privatisation, do you agree with those words?---Yes.
PN2762
Privatisation was when, 1994?---Two, I think.
PN2763
'92-3?---Yes, around that period.
PN2764
This is a pretty important meeting, isn't it?---Yes, it is.
PN2765
Right. And it is to vote on a campaign of industrial action in the Victorian power industry, and this was a meeting of all power industry employees of the various, Powercor, Citipower, AGL, and so forth, wasn't it?---Yes.
PN2766
And I just want to clear up this bit about apprentices in the first line:
PN2767
Between 1992 and 2002 -
PN2768
do you see that -
PN2769
privatised power companies didn't train one single apprentice.
**** DEAN JONATHAN MIGHELL XXN MR PARRY
PN2770
Is that true, to your knowledge?---No. I have been corrected on that. It is not the case.
PN2771
No. Have you put out another document clearing up that the privatised power companies have trained quite a number of apprentices?---Well, I have done a little bit of research on that and been through the records, and in our next ETU News I will talk about the disgracefully low number of apprentices that they have trained in that period.
PN2772
I take it the answer to my question is, no, you haven't put out any correcting material, have you?---No. It is coming out in the ETU News, and I am sure it will be quite factual.
PN2773
Now, you recall meeting and you recall talking to that meeting?---Yes.
PN2774
You recall talking about apprentices and the need for apprentices?---Yes.
PN2775
And that is a pretty important matter for the union, isn't it?---Well, I think it is an important matter for our industry, not just the union.
PN2776
Sorry, I didn't mean to interrupt, Mr Mighell. An important matter for your union?---Yes, we place a lot of emphasis on apprentices, yes.
PN2777
And the claim here in this industry is for ratios, isn't it?---Yes, it is.
PN2778
And that has been the claim from the start, and it remains the claim?---It does.
PN2779
And it is one that the union sees as a very, very important claim?---Yes, probably the most important claim.
**** DEAN JONATHAN MIGHELL XXN MR PARRY
PN2780
Right. That is a claim that the EBAs of the employers in the power industry contain provisions setting numbers or ratios?---Yes.
PN2781
Yes. Now, at this meeting do you also recall speaking about the 36 hour week?---Yes.
PN2782
Do you recall saying words to the effect, that it's time for a 36 hour week in the Victorian power industry?---Not specifically, but generally speaking, yes.
PN2783
Do you recall saying that this was a very important matter?---Yes, certainly would have said words to the effect of the importance of quality of working life, leisure time, lack of jobs, tied into an overall strategy which included apprentices, and all of those things.
PN2784
You made very clear in that meeting that the attainment of 36 hours was very, very important for your union?---No. It was very, very important for workers in this industry.
PN2785
All right. Very, very important for workers in this industry, and one that your union would pursue?---Yes, and we sought endorsement for that.
PN2786
And you also, in that meeting, made clear that the position was that there be common conditions of employment across the industry as far as possible?---That was a very strongly stated desire from our shop stewards, and again put that to our members for their views and endorsement.
PN2787
And the members did endorse resolutions about common conditions across the industry?---Yes, they did.
PN2788
And they also passed resolutions - and I don't want this to be a memory test, Mr Mighell. I am sorry, I have got two documents here, they are exhibits P8 and P9, two recommendations, one being mass meeting - I am sorry, have you got a copy?---Yes, thanks.
**** DEAN JONATHAN MIGHELL XXN MR PARRY
PN2789
THE COMMISSIONER: They are actually both P8, Mr Parry.
PN2790
MR PARRY: I am sorry, the Commissioner is correct.
PN2791
This was the recommendation that was passed at the meeting?---One of two, sorry?
PN2792
Yes, there was two?---Yes. Which one are you on, number one or number two?
PN2793
Number one?---Right.
PN2794
Common outcomes for our conditions of employment in the industry. That was a campaign recommendation that was passed on 4 February, and that remains the position of the union, to achieve common outcomes across the industry, isn't it?---Well, it is certainly our desire. But if you are to be realistic about that, there is no doubt that the agreements will be different.
PN2795
I am sorry. Yes, you say that is our desire. There hasn't been any mass meetings since this. You consider mass meetings to be important?---Of course.
PN2796
And implementing the recommendations of the members must be equally important to you?---Absolutely.
PN2797
So when your union passes, a mass meeting passes a resolution to achieve common outcomes, presumably you see that as incumbent on the union to achieve?---Yes, we do. But having said that, I think the important thing to understand is that the members in our industry have put together a shop stewards committee, and they place a fair bit of weight and emphasis on the stewards committee being able to deal with issues on the run, if you like.
**** DEAN JONATHAN MIGHELL XXN MR PARRY
While we may have sought a pretty good wish list at our mass meeting, members also know that there will need to be compromises, and I think they take some confidence that their shop stewards directly off the shop floor meet regularly for progress on the campaign, and they also know there will be compromises. But that is not to say that the mass meeting resolutions aren't incredibly important, because they are.
PN2798
What about a compromise - and I am dealing now with a position of the union - what about a compromise put before you from the shop stewards committee compromising on achieving the 36 hours and accepting the 37 hours in one of the companies? Would you accept a compromise like that?---Well, that is a matter for the troops at the end of the day, whether they would or whether they wouldn't. You know, it is really a matter for them as to what they rightly achieve.
PN2799
What would the position of the union be with regard to such a compromise?
PN2800
THE COMMISSIONER: I am not sure the witness can be asked to give an indication on a question such as that, Mr Parry. They are in negotiations. But perhaps a question along the lines of, is it conceivable that one company will have 36 hours, and another company might not have 36 hours?
PN2801
MR PARRY: Well, that is satisfactory. I will ask that question then.
PN2802
Is it conceivable that one company has 36, and another company have 37-1/2?---Yes, it is certainly conceivable.
PN2803
That is possible. I see. Now, just to go back to this recommendation. The second part of it deals with achieving more apprentices, right? That is to be achieved by obtaining the ratios and the numbers, isn't it?---Yes, we have used ratios as an effective method in other enterprise agreements.
PN2804
And the achieving of shorter working hours, that is achieving a 36 hour working week in some form, isn't it?---Ideally, yes.
**** DEAN JONATHAN MIGHELL XXN MR PARRY
PN2805
Yes. And at the bottom of the page:
PN2806
The industrial campaign introduced is to achieve our goals.
PN2807
And those are the goals set out above, more secure employment, more apprentices, better health and safety practices and shorter working hours, isn't it?---Yes.
PN2808
And the second resolution is the endorsing of the ratio of one apprentice to every three tradespeople, and that is the claim that is being pursued?---That is right.
PN2809
Right. Now, that resolution and those goals remain the position of the union, don't they?---Well, we would like to get them.
PN2810
Right. Now, just to be clear on the position of the union today. It is the position, firstly, that any resolution must include a 36 hour week?---That is certainly our claim.
PN2811
Yes. I have been very cleverly picked up on this, that that is our claim. Is it the position of the union?---Well, of course, it is the position of the union.
PN2812
Thank you. And the position of the union is also that in achieving 36 hours there won't be trade offs?---By position of the union, do you mean is that the fixed position that is intransigent and not subject to, is that what you would like me to say? I am not too sure.
**** DEAN JONATHAN MIGHELL XXN MR PARRY
PN2813
No, I think we can't get into speculation about what might be the position in the future. I think the Commissioner is correct, we don't want to take away a negotiating position. What I want to understand is, the position of the union now. The position of the union is, 36 hours, no trade off?---I would have to say that the position we have got to with other companies - and I have got to be a little bit careful, Commissioner, in terms of what I say, because they are competitors of the companies in this matter - is that there are very meaningful discussions going on with companies about the 36 hour week, and there is also discussions about the levels of trade offs. And I am happy to brief the Commission. I just don't know whether that should be on the public record or not.
PN2814
No?---So I can't honestly say that, look, it is without trade offs, because I think ultimately in every instance we have won a 36 hour week. There has always been compromises. It is the question of the level and what they are.
PN2815
I am not asking you to speculate as to what might be the position in the future. All I am asking you is, what is the position of the union now? Is it the position of the union now that the 36 hour week is to be introduced without trade offs?
PN2816
MR BORENSTEIN: Well, there is obviously some confusion in the witness' mind as to what Mr Parry is asking, whether he is asking what is the bargaining position or the bargaining stance, or whether he is asking some other position that the union is after. And perhaps that should be clarified.
PN2817
THE COMMISSIONER: Mr Parry, I am not sure there is any confusion in the witness' mind, but what I am hearing is, the union position on trade offs - and I am happy for Mr Mighell to correct me on this - the union position on trade offs is that there will be no trade offs. That is the position they are taking to the negotiations. However, Mr Mighell has also said that on each occasion they have secured a 36 hour week in other areas there has been trade offs.
PN2818
MR PARRY: I am not sure he said that last bit.
**** DEAN JONATHAN MIGHELL XXN MR PARRY
PN2819
THE COMMISSIONER: And that suggests to me that he is anticipating that if there is to be an agreement with these particular companies it will quite possibly include trade offs. Now, I am happy for Mr Mighell to correct that if that is a misinterpretation?---Yes. Look, I just think it is the word trade offs, that always has sort of negative aspect to them, like you're giving away things. And sometimes my experiences on 36 hour campaigns, and we have reached more agreements on 36 hour week campaigns in this industry and others, and they always involve some process of a bit of give and take. And I think whether you call them trade offs or a bit of give and take, the position of the union is, you have got to be in negotiations and there will have to be give and take. The 36 hour week has a cost impact for employers, we understand that. And so there is always X amount of money available in a negotiation, the capacity to pay X. And I suppose you have to form a judgment about, of that pot of money what do you take in terms of shorter hours, wages, superannuation or allowances, and I suppose the trade offs could be less wages, shorter hours. They are trade offs that are real and would absolutely be considered by us. I mean, we wouldn't rule out discussing anything. And if they're called a trade off, then we would gladly talk about trade offs.
PN2820
Mr Parry, those remarks probably don't resonate in the ears of the negotiators for the company as clearly as earlier remarks might have, but Mr Mighell is clarifying their position.
PN2821
MR PARRY: Well, he is not really, with respect. But that is a matter - he has just made a bit of a speech about possibilities and hypotheticals. All I was interested in is the position now and what the position of the union now is. And I think, Commissioner, you said what the position was, that there is to be 36 hours with no trade offs. What he has just given the little speech about is possibilities and speculation about what might happen in the future. And those are the things that we are very careful in these proceedings not to get into questioning about.
**** DEAN JONATHAN MIGHELL XXN MR PARRY
PN2822
THE COMMISSIONER: Well, I hear you, Mr Parry, but what I took the witness to be saying is, his expectations - and he is the Secretary of the Branch, the senior officer of the Branch of the ETU, and in a sense I expect he takes ultimate responsibility for the negotiations. And he is saying that, in effect, the union is prepared to sit down with the company and discuss trade offs, to the extent even Mr Mighell accepted there might be a possibility of reduced remuneration increases, a possibility of.
PN2823
MR PARRY: Yes, he has said that.
PN2824
Has any of that proposition, to your knowledge, been advanced in any of these negotiations with the power companies?---Yes.
PN2825
I am sorry, a reduced pay amount?---Well, you know, reduced from the initial claim we have put out, yes, they have. And, in fact, we have even reached agreement with some contractors for increases around the 4 per cent mark.
PN2826
No, I am not going to talk about contractors. I am talking about the power companies, the distribution companies?---Yes, we're having discussions with distribution companies.
PN2827
MR BORENSTEIN: Perhaps the witness shouldn't have to say who it is that he is negotiating on this aspect.
PN2828
THE COMMISSIONER: I don't think the witness should be asked to nominate the particular companies, but let us accept though, there is a very limited range. We have got three here, and there is only two more, as I understand it.
PN2829
MR PARRY: Well, that is right. And if that evidence is to be given any credit, I would want to put a couple of things to him about that. He has said that there has been an agreement reached, or he has suggested, half suggested there has been an agreement reached on 36 hours with another employer in this industry.
**** DEAN JONATHAN MIGHELL XXN MR PARRY
PN2830
THE COMMISSIONER: I haven't heard that, Mr Parry.
PN2831
MR PARRY: Well, because if that is to be suggested, I want to put to him that that is not the case.
PN2832
THE COMMISSIONER: Well, I haven't heard that. I am happy for it to be clarified.
PN2833
MR PARRY: Well, you have heard that exchange between the Commissioner and I?---Yes. You got it wrong again, mate.
PN2834
What is that?---Yes, you have got it wrong.
PN2835
I have got it wrong?---Yes. If you read back the transcript, I never said that.
PN2836
So just to make this crystal clear. There has been no agreement reached with any of the power distribution companies on the 36 hour week, has there?---No. But good progress.
PN2837
No. I am sorry?---But good progress.
PN2838
THE COMMISSIONER: Now, what I did hear, Mr Parry, and I want Mr Mighell to clarify this, is that in the discussions with the other companies where progress is being made, the issue of the wage increase which is to be paid is a factor in the overall bargaining that is going on in relation to the whole package, including the 36 hour week?---Yes, of course, Commissioner. And in every instance, whether it be those companies that are actually having discussions with it, or those companies that haven't wanted to engage us on the question, but in reaching an agreement there is always an amount of money, I always take the view there is always an amount of money that can be paid. Now, if you take that amount in hours, super or wages, then there has always got to be a compromise about how that is done, and that will be the same with the companies we reach agreement with.
**** DEAN JONATHAN MIGHELL XXN MR PARRY
PN2839
MR PARRY: You haven't personally been involved in any of these negotiations; I think you said that earlier?---In a direct formal sense, no.
PN2840
Well, you haven't attended any of the meetings, have you?---No. I have had some phone conversations with people.
PN2841
And the position put, as you understand it, I suggest to you, in the negotiations with Powercor and Citipower, and with regard to TXU and SPI, has been - - -
PN2842
MR BORENSTEIN: Well, I am sorry, Commissioner, I didn't realise that we were canvassing the other companies in this proceeding.
PN2843
MR PARRY: Well, is he going to give evidence every time? Are we going to keep calling Mr Mighell back for three cases?
PN2844
THE COMMISSIONER: Well, I took it that the witnesses that were going to be required in each of the cases would be called by each of the parties. Now, is it intended - can I just clarify this please, Mr Parry. Mr Borenstein, is it intended that Mr Mighell will come back for either SPI or TXU?
PN2845
MR BORENSTEIN: No. I indicated to Ms McLean that we would call him in reference to this case.
PN2846
THE COMMISSIONER: To this case only?
PN2847
MR BORENSTEIN: Yes.
PN2848
THE COMMISSIONER: What about Mr Georgiou?
**** DEAN JONATHAN MIGHELL XXN MR PARRY
PN2849
MR BORENSTEIN: Mr Georgiou will because he has been the - - -
PN2850
THE COMMISSIONER: Good. Is Mr Mighell the only witness that will not be called in the other two matters?
PN2851
MR BORENSTEIN: Yes. Unless they want him to be called.
PN2852
MR PARRY: Is anything going to be made of his evidence in the other cases?
PN2853
MR BORENSTEIN: No.
PN2854
MR PARRY: No.
PN2855
THE COMMISSIONER: Well, if there is no evidence given by him, on the face of it, no.
PN2856
MR PARRY: I see. Okay, that is fine, happy with that.
PN2857
Let's get back to the negotiations with Powercor and Citipower. From your understanding of the negotiations, the position put by the union to date has been 36 hours has to be introduced, firstly?---Yes, we want it introduced.
PN2858
Yes. No, that it has to be introduced?---Well, our position is that we claimed it and we certainly want it. But there is a whole range of negotiations that we have heard about, that we hope at the end of the day it will be there.
**** DEAN JONATHAN MIGHELL XXN MR PARRY
PN2859
And secondly, that it is to be introduced - this is the position put - without trade offs; is that your understanding?---Well, my understanding is that there was some hopefully without prejudice discussions that should have been off the record, that have somehow ended up on the record, that have led to, I think, some evidence about there being some compromise position put, and certainly some trade offs in my mind accepted. So if you were to ask me, is it a fixed position? Apparently not.
PN2860
Yes. I have nothing further, if the Commission pleases.
PN2861
THE COMMISSIONER: Thank you, Mr Parry.
PN2862
MR BORENSTEIN: Commissioner, may Mr Mighell be excused please?
PN2863
PN2864
THE COMMISSIONER: Now, we have Mr Rizzo, I think, Mr Borenstein?
PN2865
MR BORENSTEIN: Yes.
PN2866
THE COMMISSIONER: Is Mr Rizzo the last of your witnesses?
PN2867
MR BORENSTEIN: Yes.
PN2868
THE COMMISSIONER: Good. Well, with an ounce of luck we might get Mr Rizzo through by lunchtime.
PN2869
MR BORENSTEIN: Well, that depends on Mr Parry. I certainly won't be delaying.
PN2870
THE COMMISSIONER: It depends whether he speaks as long as Mr Georgiou did yesterday. No reflection on you, Mr Georgiou. I have found they are both pretty hard to stop, Mr Borenstein.
PN2871
PN2872
MR BORENSTEIN: Mr Rizzo, is your full name Michael Rizzo?---That is correct.
PN2873
And is your address 116-124 Queensberry Street in Carlton South?---Yes.
PN2874
And are you the Assistant Branch Secretary of the ASU in Victoria?---Yes.
PN2875
For the purposes of this case did you prepare a witness statement, dated 16 March 2004?---I did.
PN2876
Comprising of 26 paragraphs?---Correct.
PN2877
And have you recently had a chance to read that statement?---Yes, yesterday.
PN2878
And are the contents of the statement and the opinions that you have expressed in it true and correct?---Correct.
PN2879
PN2880
MR BORENSTEIN: Now, in large part the statement adopts the comments that Mr Georgiou made in his witness statement, but can I take you to paragraph 16?---Yes.
PN2881
And paragraph 17?---Yes.
**** MICHAEL RIZZO XN MR BORENSTEIN
PN2882
And can you tell us the - first of all, can you explain paragraph 16 and what you mean about the past changes to spread of hours that the unions have accommodated?---Yes, Mr Borenstein. The issue of hours has obviously taken up a lot of time in these proceedings, and I just wanted to make the point that on the union's side, that we have made significant shifts on hours in the past. So, for example, we changed the award from 7.30 till 5.30, and we made that six till six as the spread of hours, and on another occasion we also changed the call centre times of both Powercor and Citipower when they still had call centres, between six and six, and to 6 to 11, and also in those call centres we reduced the overtime rate from time and a half to double time on the Saturday, to simply time and a half on the Saturday. I wanted to make the point that the union side has shifted considerably on hours in the past.
PN2883
All right. Now, in relation to paragraph 17, what is the background to the material in paragraph 17?---Well, Powercor has put a proposition to us about, again, changing spread of hours and remuneration in the Powercor Bendigo call centre.
PN2884
As part of these negotiations?---Yes. But we have had virtually no discussions on this issue at all. And as I say in my statement, I can't see how negotiations can be at an end if we haven't even discussed the major issue at all.
PN2885
You have been in Court when Mr Georgiou gave his evidence yesterday, and Mr Arnett today?---I missed the first part of Mr Georgiou's evidence because I was at a meeting, but I did catch, I think, the second half of his evidence.
PN2886
You were here for his cross-examination?---Yes.
PN2887
Yes. You will have heard then that he and Mr Arnett were questioned about the position of the unions in relation to trade offs for the 36 hour week?---Yes.
**** MICHAEL RIZZO XN MR BORENSTEIN
PN2888
And the readiness to accommodate those trade offs. Can you tell the Commission, what is the position of your organisation on that score?---Our position is, we see the 36 hours, or a combination as we have put, that the hours could be expressed in terms of extra annual leave at the end of the year, or getting extra days, as Mr Georgiou said, in public holidays and the rest that we had lost over the last six or seven years, that we would like to get a decrease in the spread of hours in that sort of form. And we understand that this is an issue on the other side of the table, and we understand that, like all agreements, if we are to get agreement on this issue, that we will have to do some compromising and some trading, as we have done on five other occasions.
PN2889
All right, thank you.
PN2890
THE COMMISSIONER: Mr Parry?
PN2891
PN2892
MR PARRY: Mr Rizzo, this last question my learned friend asked you, what about trade offs? Do you remember that?---Mr Borenstein did?
PN2893
Yes, Mr Borenstein asked you, what about trade offs? Do you recall that?---I am not sure that he said trade offs.
PN2894
THE COMMISSIONER: He did say trade offs?---He did, okay, yes.
PN2895
MR PARRY: And I just want to go through your answer with you about what you said in respect of trade offs?---Yes.
**** MICHAEL RIZZO XXN MR PARRY
PN2896
We see the 36 hours could be the extra annual leave or extra days in public holidays, or a decrease in the spread of hours; remember that?---Yes.
PN2897
MR BORENSTEIN: Well, hang on. That is not the whole of his answer.
PN2898
THE COMMISSIONER: No, that is not his answer, Mr Parry.
PN2899
MR PARRY: I am sorry. Go on.
PN2900
THE COMMISSIONER: His answer extended beyond that, which I took that to be the way in which the reduced hours were going to be taken, and they were the preferences of his union. But he then went on to say that on previous occasions, and he is suggesting that it will be on this occasion as well, there have been compromises and trade offs - and they are the words I have put down on my notes - and he expected that to be the case on this occasion. Now, I am happy for the witness to correct me?---No, that is correct.
PN2901
MR PARRY: I was just going through the response to the question about trade offs. And the first part of that was about implementation of the 36 hours, wasn't it?---Yes.
PN2902
And it has been the firm position of your union throughout that 36 hours will be introduced?---Yes.
PN2903
And it is prepared to discuss the method of implementation?---Yes.
PN2904
It has at no stage said that it would consider trade offs?---We have made no statement to that effect.
**** MICHAEL RIZZO XXN MR PARRY
PN2905
No. Thank you. You have made no statement to that effect, you have made no statement that you won't look at trade offs?---That is correct. We have not said that we won't look at trade offs.
PN2906
Have you said you will look at trade offs?---We have had no trade offs to look at.
PN2907
Right. The answer to my question is simply, you have not said you will look at trade offs, isn't it?---No. We have not ever said that we will not look at trade offs. But we have had no trade offs to look at.
PN2908
Not ever said would not look at trade offs. You have had no trade offs to look at, you have at no stage said you would look at trade offs?---It is difficult to look at trade offs, Mr Parry, if there is no trade offs to look at.
PN2909
I think the question is really a yes or no one?---Well, that is the answer you are seeking.
PN2910
THE COMMISSIONER: I think, Mr Rizzo, you should answer the question. And the question is, at any stage have you said to the companies you are prepared to look at trade offs, yes or no?---I honestly can't recall, Commissioner, to be honest with you, I honestly can't recall. I don't recall over a four month period whether I have ever said we were prepared to look at trade offs or not. What I do know is that there has been no tangible trade offs to look at, and therefore I haven't had to elicit a response.
PN2911
MR PARRY: So your evidence is, you don't recall ever saying, or you don't recall saying that you would look at trade offs?---Correct.
PN2912
Right. So if the company's evidence is that it has been your union's position through the negotiations that you would not look at trade offs, you can't say that that is right or wrong, can you?---You see, are we talking about the, you know, the meeting no one wants to talk about on Monday. I think there has been - - -
**** MICHAEL RIZZO XXN MR PARRY
PN2913
THE COMMISSIONER: I think, Mr Rizzo, Mr Parry is talking about the whole process of negotiation from October last year until Monday?---Yes. Well, on Monday, for example, the unions were discussing trade offs, yes, were discussing compromises on the introduction of the 36 hour week and the like.
PN2914
MR PARRY: Right. Were discussing compromises. Which compromises were they?---For example, the timing of the introduction of 36 hour week, that it should come towards the end of the agreement as opposed to the start, the wage increase, we talked about around the 4-1/2 per cent wage increase as opposed to the original 7 per cent claim and then the 5 per cent claim. So there was compromise on the union's side on those issues, yes.
PN2915
Right. Those are the compromises that you recall; correct?---There were further compromises, in fact, that the unions were prepared to discuss, which Mr Arnett covered in his witness evidence, that the unions were prepared to look at other issues which were outlined previously. I don't have P9 in front of me. I think they were about shifts and about start and stop times.
PN2916
All predicated on the introduction of the 36 hour week, weren't they?---The topic was a 36 hour week, yes.
PN2917
Yes. And the wage increase around the 4-1/2 per cent, that was the company offer, wasn't it?---It was at one stage. There was some uncertainty whether it included the superannuation component or not, but yes, generally it was the company offer, 4-1/2 per cent.
PN2918
Now, do you recall distributing a newsletter, P5 I think. I will see if I can get a copy for you, Mr Rizzo.
PN2919
THE COMMISSIONER: Mr Georgiou, do you have a copy in front of you somewhere, P5? Can it be passed to the witness please. The 29th of January. He has one, Mr Parry.
**** MICHAEL RIZZO XXN MR PARRY
PN2920
MR PARRY: He is ahead of me at the moment, Commissioner.
PN2921
Have you seen that document before, Mr Rizzo?---Yes.
PN2922
Is that a joint newsletter you prepared?---Yes.
PN2923
Did you draft it?---No. I think Mr Georgiou drafted it, but I had input into it and certainly vetted it.
PN2924
You were comfortable with your name going out on it?---Yes.
PN2925
The first paragraph refers to, in the second last line, very significant clauses. And at that time the union identified, your union identified the use of contractors, hours of work, increase in leave provisions, and balance of work and family life, and that was the position of your union on 29 January 2004?---Well, they were some of the examples, yes.
PN2926
And that remains the position, that they are still very significant clauses, aren't they?---Yes, they are.
PN2927
Now, there is then reference to a report back meeting?---Yes.
PN2928
And there is reference to the meeting on 4 February, and below that:
PN2929
The report back will be followed by a question and answer session, and then members will be asked to give directions to the negotiators on how to deal with the stalled negotiations.
**** MICHAEL RIZZO XXN MR PARRY
PN2930
Do you see that?---Yes.
PN2931
Now, you were comfortable in telling your members that the negotiations were stalled at that stage, weren't you?---Negotiations, Mr Parry, stalled at various stages of the process.
PN2932
And you were comfortable with telling your members that the negotiations had stalled on 29 January, weren't you?---As I said, they do stall at various times, yes.
PN2933
And that was the fact as of 29 January, as you saw it, that the negotiations were stalled?---Most likely, yes.
PN2934
And that is the reason why there was to be the next stage of protected industrial action, wasn't it?---Yes.
PN2935
It goes on and describes this meeting on 4 February as the most crucial meeting, probably being the most crucial meeting in the Victorian power industry since the break up of the SECV. Do you see that?---Yes.
PN2936
A fair description of that meeting, as the most crucial in the Victorian power industry since the break up of the SECV?---Well, it is only the first time in the distribution transmission sector since the SEC that we had met as a block. But I must say to you that we had had mass meetings in the La Trobe Valley across five or six different companies over the Yallourn issue a number of years ago, and they were big mass meetings across the La Trobe Valley as well. So it wasn't the only meeting that we have had of that magnitude.
PN2937
No, I am not suggesting it was the only meeting. I am suggesting that when you described the meeting on 4 February as the most, probably the most crucial meeting in the Victorian power industry since the break up of the SECV, that was a view you honestly held?---It was an important meeting, yes. It was an important meeting in the sense that it was the first time in about 10 years that such a meeting had taken place in that sector, yes.
**** MICHAEL RIZZO XXN MR PARRY
PN2938
What do you mean, such a meeting?---Well, a meeting of six companies - sorry, five companies on this occasion, meeting across the board as opposed to individual companies.
PN2939
And do you accept that it was a crucial meeting?---Yes, crucial in the sense that we had to decide upon industrial action, and we wanted members to be in attendance so that we could get a comprehensive mandate for any industrial action that was ratified by the meeting.
PN2940
If I could hand you another document which you don't have, dated 27 February 2004, headed News Briefs?---Yes.
PN2941
Have you seen this document before?---Yes.
PN2942
Did you draft it?---Yes.
PN2943
And this was industrial action and bans update, and it was distributed to members at Powercor, Citipower?---Yes.
PN2944
And over the page there is reference to the negotiations:
PN2945
Contrary to popular opinion these negotiations are not just about the 36 hour week.
PN2946
What are you referring to there?---Well, there was a tendency of the companies to simply talk about the - that this was all about the 36 hour week. And I was correcting the view that it was not our view that this is just about the 36 hour week, and in the paragraph I continued to mention about six or seven other items that these EBA discussions were also about, including things like no compulsory departures and protection of worker entitlements.
**** MICHAEL RIZZO XXN MR PARRY
PN2947
And they were also important claims, as you describe them?---Yes.
PN2948
And so when you used the term, popular opinion, you are referring to the company opinion?---Well, not just the company opinion. There had been some media opinion also that somehow these negotiations were just about the 36 hour week, and in my view and in the view of my membership it is not just about the 36 hour week. That is one claim amongst a number of other claims, as I go on to mention in that paragraph.
PN2949
I see. And they remain important claims, don't they?---Yes, they do.
PN2950
PN2951
MR PARRY: Mr Rizzo, your statement refers to the last negotiations. You refer to the last negotiations and set out - - -?---Sorry, which paragraph are you referring to?
PN2952
Well, I am starting with general?---Yes.
PN2953
It refers to the 2002 negotiations, or the 2001-2002 negotiations, it refers to the number of meetings held and the issues that were raised?---Yes.
PN2954
Now, the issue of 36 hours, you were in the Commission when Mr Minster gave evidence, the 36 hours claimed last time, on his evidence, was in documentation in October 2001, and out of the documentation by the end of October 2001; did you hear that?---Yes, I did hear that, yes.
**** MICHAEL RIZZO XXN MR PARRY
PN2955
Yes. And I think your statement says you attach copies of the previous negotiating documents, but you haven't actually attached any copies to your statement, have you?---That was the intention. I am not sure that they were attached or not.
PN2956
Now, you can't disagree with Mr Minster on that, can you?---I don't recall when, if and when the 36 hour week did leave those negotiations.
PN2957
Right?---But I certainly know that the 36 hour week was a claim at those negotiations.
PN2958
Yes. I am not taking issue with your evidence that it was a claim. But my suggestion to you is that it was not a key issue in that dispute through the period of the meetings, as you suggest?---It was an issue, and at one stage it fell off being an issue, but I don't know when that was.
PN2959
Now, I think you were asked questions about paragraphs 16 and 17?---Yes.
PN2960
With regard to issues of hours of work. And I think your evidence was that hours of work, and then you talk about concessions in the past are changing spreads of hours, that is in paragraph 16, isn't it?---Yes.
PN2961
Those changes to spreads of hours were in the context of a 37-1/2 week, weren't they?---Yes.
PN2962
THE COMMISSIONER: And a reduction from what, Mr Rizzo?---In overtime rates?
PN2963
No. 37 hours was secured. Was it down from 40 or down from 38, or what was it?---No, no. The hours remained the same, Commissioner. It was the spread of hours.
**** MICHAEL RIZZO XXN MR PARRY
PN2964
So it was only in the context of a general negotiation for an enterprise agreement those concessions were made on hours, but not in return for a shorter working week?---No.
PN2965
Okay, thank you.
PN2966
MR PARRY: Now, this issue of the Bendigo call centre, the issue there is that Powercor wants to change the spread of hours at the Bendigo call centre?---And the remuneration, yes.
PN2967
Right. It would be a little difficult to change a spread of hours before one agrees what the average hours to be worked per week would be, wouldn't it?---Possibly. But in the period that we are talking about it was never raised as an issue with us. This whole subject matter has never been discussed between us and the company, and yet it was a feature of previous negotiations, but up to this point the company has not made an issue of this at all.
PN2968
Do you accept that it would be a bit absurd to be discussing spreads of hours at the Bendigo call centre whilst the company is maintaining a position of not introducing a 36 hour week, and remaining on a 37-1/2 week, do you accept that?---No. I would have thought the reverse. I would have thought if the company is going to stick to the 37.5 hours per week, then the discussion of a spread of hours is quite a legitimate one.
PN2969
I see. Remuneration at the Bendigo call centre, again, I would suggest to you that it would be a bit of an odd situation to be discussing remuneration at the Bendigo call centre when remuneration hasn't been agreed across the operations of Powercor in the EBA process?---No. Remuneration specifically, Mr Parry, is about overtime payments, as mentioned in paragraph 16. It is a demand, it is a request or a demand, or a log from the company wanting to reduce the Saturday overtime rate, so it is quite divorced from the quantum, if you like.
**** MICHAEL RIZZO XXN MR PARRY
PN2970
THE COMMISSIONER: Sorry, Mr Parry. But, Mr Rizzo, are you saying the company has not alerted the union to what it wants at Bendigo, or at this point it hasn't bargained on those issues?---No. It has alerted us to what it wants, which is similar to what we have discussed in the past, Commissioner, but we have had, I think, a very brief conversation at best in the four months about the changes proposed.
PN2971
Okay, thanks.
PN2972
MR PARRY: Now, you have seen all the minutes. I am sorry, they are not minutes, the notes of meetings prepared by Mr Minster, you have been in the Commission whilst they have been gone through with other witnesses?---Mostly, yes, I think so, yes.
PN2973
And Mr Minster has said that he recorded summaries of matters that were raised; do you recall him saying that?---Yes.
PN2974
And I have taken other witnesses through those meetings?---Yes.
PN2975
Mr Rizzo, you will note that at no time have I - well, I don't remember in any of those summaries of meetings the issue of the Bendigo call centre being raised?---Correct.
PN2976
And these were meetings in which the unions were putting forward they considered to be major issues?---We did put major issues, yes.
PN2977
And you have never at any stage said one of the major issues is the Bendigo call centre and the spread of hours there, have you?---No. That is their claim, not ours. It is their responsibility to pursue their claim, not me.
**** MICHAEL RIZZO XXN MR PARRY
PN2978
Right. So you are critical of them for not pursuing this Bendigo call centre claim independently of the issues of the 36 hour week and the hours of work claims?---I am saying if they put a claim on the table it is their responsibility to pursue. We are happy to discuss it, but I don't see why I should be advocating change that they propose.
PN2979
So your position is, they are not raising it and pushing it, right?---Yes.
PN2980
And you are not raising it and pushing it?---Not at that point, no.
PN2981
Well, it is hardly a major issue then, is it?---Well, it is a major issue, but it hasn't been discussed yet.
PN2982
I see. It is a major issue in your opinion?---Well, I think in most people's opinion. If you are changing spread of hours and if you are changing the award overtime rate, I would say that that is a major issue.
PN2983
I see. I have nothing further, if the Commission pleases.
PN2984
THE COMMISSIONER: Thank you, Mr Parry.
PN2985
MR BORENSTEIN: Just one matter, Commissioner. The witness was asked some questions and gave some evidence about the meeting on Monday without the benefit of exhibit P9. I wonder if he might be given a copy of that for a moment?
PN2986
THE COMMISSIONER: There is an interesting question here too, Mr Borenstein, in that I did recall Mr Mighell saying he understood the agreement, or the meeting to be off the record. And yet your other advisers are saying the reverse. Perhaps we should get that clarified at some point.
**** MICHAEL RIZZO XXN MR PARRY
PN2987
MR BORENSTEIN: Yes. I am sorry, Commissioner, I was assuming you didn't intend that to happen now?
PN2988
PN2989
MR BORENSTEIN: You remember you were asked by Mr Parry some questions about your union's position in terms of what has been described as trade offs for the 36 hour week?---Yes.
PN2990
And you gave some evidence by reference to what you could recall being in exhibit P9?---Yes.
PN2991
You mentioned a preparedness to talk about shifts and staggered start times?---Yes.
PN2992
You now have exhibit P9 in front of you?---Yes.
PN2993
You see that there is another item there of RDO flexibility which is apparently, according to Mr Minster, an item that the company put forward. Can you tell us what your union's position was in terms of discussions on that issue, readiness to discuss that issue?---I think it is fair to say that it wasn't primarily targeted at my union, but like all issues on the table, Mr Borenstein, the ASU is prepared to discuss them. We have had 11 years, Mr Borenstein, of privatisation, corporatisation, outsourcing, contracting out, downsizing, any management sort of terminology you want to apply, we have had it in this industry. And if we haven't been as nimble as sort of Muhammed Ali to get around a lot of these things and be flexible, we wouldn't have got anywhere. So our union's position is that we are flexible, we are prepared to negotiate, and we have negotiated with many people over a long period of time.
**** MICHAEL RIZZO RXN MR BORENSTEIN
PN2994
Thank you. I have no further re-examination, Commissioner.
PN2995
PN2996
THE COMMISSIONER: That is the last of your witnesses, I understand, Mr Borenstein?
PN2997
MR BORENSTEIN: That is correct, yes. We have no other evidence, Commissioner.
PN2998
THE COMMISSIONER: So no other evidence. So let us go back to the issue we were discussing earlier today. I think we have agreed now witness evidence will be presented in each of the three cases, and then we will have final submissions at the end. So does that mean insofar as Citipower, Powercor is concerned we should now move on to SPI?
PN2999
MR BORENSTEIN: Well, I believe so, Commissioner, that is the course of consent to be followed.
PN3000
THE COMMISSIONER: What is the preference of the parties in relation to moving on at this point? Do you want to move on now? I am happy to do so, and we will break at about 12.45?
PN3001
MR PARRY: We will move on.
PN3002
THE COMMISSIONER: Good.
PN3003
PN3004
MR PARRY: Mr Drew, what is your full name and address?---Norman Peter Drew, 452 Flinders Street, Melbourne.
PN3005
Where are you employed?---I am employed in SPI Powernet in the office at that address.
PN3006
How long have you been employed by SPI Powernet?---I have been employed by SPI Powernet for the whole time the company has existed here in Victoria, which is three or four years.
PN3007
These things don't magnify, unfortunately, Mr Drew, and I know that you don't speak very loudly, but if you could speak a little bit louder. Now, you worked with the SEC?---Yes, I did.
PN3008
And when did you start with the SEC?---In 1965.
PN3009
As?---As an apprentice power technician.
PN3010
And how long was your career with the SEC?---Well, right up until it was privatised, so on aggregate I had some 39 years in the industry.
PN3011
And towards the end of your time with the SEC what sort of work were you doing?---Management positions and different roles.
PN3012
Did you have any involvement with industrial matters?---No.
PN3013
What sort of management roles?---Line management roles in technical positions.
**** NORMAN PETER DREW XN MR PARRY
PN3014
Now, what position do you currently hold with SPI Powernet?---I am the General Manager Design and Development.
PN3015
And what responsibilities does that entail?---It involves working with a team of people to deliver mainly the capital program which sees us reinforcing and upgrading the network.
PN3016
Now, there has been a summary of evidence prepared for you. Do you have a copy of that before you?---Yes, I do.
PN3017
And you have read that, presumably?---Yes.
PN3018
Are the contents true and correct?---Yes.
PN3019
I tender that document.
PN3020
THE COMMISSIONER: Mr Parry, should we start our numbering again, to ask an important question?
PN3021
MR PARRY: Probably.
PN3022
PN3023
MR PARRY: Now, your statement in paragraph 14 refers to negotiations between the SBU and SPI Powernet, and a number of dates are set out therein. Now, have you attended some of these?---Yes, I have attended all of those meetings.
**** NORMAN PETER DREW XN MR PARRY
PN3024
And is there a practice of preparing notes of those meetings?---Generally there is a minute taken by one of our negotiating team.
PN3025
And what happens with that minute, as you describe it?---It is generally forwarded to the union team for their information and/or comment.
PN3026
Now, we filed some documents, and they have been enfiled in a couple of tranches, and there are some other documents that we have provided to the other side later that aren't before the Commission, Commissioner. So I intend going through some documents now which will have come from one of those sources. And we can make sure that at least the Commission and the witness have them.
PN3027
Now, one of the meetings is 25 November 2003. If I could hand you a document headed Single Bargaining Unit Meeting of 25 November 2003. Now, do you have a copy of that document?---I don't believe so.
PN3028
Was that, I don't believe so?---I do not have a copy of that document.
PN3029
Does the Commission have a copy of the - - -
PN3030
THE COMMISSIONER: I have a copy of the folder, but I cannot see that there is any reference in that to records of meetings or anything else.
PN3031
MR PARRY: It is one of the documents that has been relied on, we think, filed by the CEPU.
PN3032
Do you have a copy of that?---Counsellor, I do have that since I have gone to the one you said, the CEPU. I do have that minute.
**** NORMAN PETER DREW XN MR PARRY
PN3033
We have taken this document and, firstly, the documents filed by the ETU, and I can hand to the Commission a copy of two pages.
PN3034
THE COMMISSIONER: I haven't seen it at all. I don't recall seeing this at all, Mr Parry, unless it was given during the conciliation proceedings, no.
PN3035
MR PARRY: This is a document, being one of the ones we have been given notice of by the union that they intend to rely on. As I recall the directions, it was about filing documents that were to be relied on.
PN3036
THE COMMISSIONER: I have a file which has been made up, which is the SPI file, which includes the documentation provided by the company and the witness statements provided by the unions. I do not see anything in that material which is identical to these two pages.
PN3037
MR PARRY: Well, I am not going to make any great point of this. I think it is just that there has been obviously some documents filed, other documents exchanged. But hopefully that doesn't hold up the process, Commissioner.
PN3038
THE COMMISSIONER: As you would be aware, there is a large volume of paper that has been generated by this matter to date, and it may be on one of the other files we have in this matter. It is possible.
PN3039
MR PARRY: Now, you have that document before you?---Yes, I do.
PN3040
And this was one of those minutes, was it?---Yes.
PN3041
**** NORMAN PETER DREW XN MR PARRY
PN3042
MR PARRY: Now, there is reference there in the third paragraph down, the unions advised they had modified their claim from a 35 hour week to a 36 hour week. And perhaps if you could read that paragraph and just say if it is correct, to your recollection, that those things occurred at that meeting?---Counsellor, are you referring to the paragraph - - -
PN3043
The unions advised?---Yes, I see it now. Yes, that is in accord with my recollection.
PN3044
Right. And that was the position of SPI Powernet at that time?---That is right.
PN3045
Now, what is the - there is a document attached to that, 25/11 costings; do you see that?---Yes, I do.
PN3046
What is that document?---The document is an indicative working document of the costs related to a number of the matters that we had been discussing.
PN3047
Perhaps if you could just stop for one second. Does the Commission have the attached document?
PN3048
THE COMMISSIONER: I do.
PN3049
MR PARRY: Sorry, Mr Drew, go on?---I wanted to point out to counsel that since that time we have reviewed these costings, and they - - -
PN3050
Let's stay with these costings. Were they prepared at that time?---They were prepared by the negotiating team around about that time, in between this meeting and the previous one.
**** NORMAN PETER DREW XN MR PARRY
PN3051
Were they circulated?---Yes, they were circulated as part of the minute.
PN3052
I see. And since they have been prepared, you were saying they have been reviewed again?---The costings have been reviewed by our financial department and, in particular, the first two are incorrect.
PN3053
Why are they incorrect?---There was an error made in determining the base collective annual award salary in the company. In fact, the number that was used was 12 million, and it should have been 18 million. When that is introduced to those first two items, the dollars on the right hand side go, in the first case, the 1.26 million, and in the second case 1.2 million, and on the second line, 4.8 per cent becomes 6.8 per cent. We believe those numbers to be the correct numbers.
PN3054
And when was this re-calculation done, Mr Drew?---In the last 10 days.
PN3055
Now, perhaps to go through the negotiations in sequence. There were meetings on 8 December, 18 December and 23 January. And how would you summarise those meetings with regard to the progress on, firstly, the 36 hour week?---In respect of the 36 hour week, yes, we did discuss it at those meetings. At the 20 December meeting we discussed, or we explored aspects of possible split implementation across our award employees, and we also discussed ideas presented by the union in terms of grace days or type of rostered days where employees would be able to achieve 36 on an annual aggregate rather than working 36 hours in each week. That happened on 20 December, and on 23 January we further explored matters associated with 36.
PN3056
And was there, towards the end of January, was there agreement reached on these issues?---Following on from the meeting on the 23rd there was a meeting on 30 January, in which we tabled, in an attempt to see what was possible in relation to 36, and to get some traction on a topic that really had eluded us for, you know, 10 or 12 meetings, we tabled a document, which I believe is attached to the minutes - I am not sure if the Commission has it - which laid out possible implementation proposals over three years, and we debated that tabulation, and we left that meeting with a feeling that some progress might have been made on one of the particular issues.
**** NORMAN PETER DREW XN MR PARRY
PN3057
I see. Now, perhaps then if I could hand you a document headed, To Mark Georgiou, APESMA, Greg Arnett and Wes Hayes, ETU, Michael Rizzo. Now, that falls into the same category, your Honour, as documents that we understood had been filed, and apparently have not been.
PN3058
Do you have a copy of that document?---What date is that document, counsel?
PN3059
It doesn't have a particular date on it?---Does it start with, we believe this reflects?
PN3060
Yes, it starts with, we believe this reflects?---Yes, I have that.
PN3061
Now, what is that document?---That document is a minute of the discussions that took place at the regular SBU meeting on 30 January, and it attempts to encapsulate what we believed was the spirit of the discussions on that day.
PN3062
Now, it has, following under the heading, Graeme Bloomfield, at the top of the page - is this an e-mail that was sent to those people?---Yes, it is.
PN3063
And how soon after 30 January?---I believe it was, but I can't be sure, I believe it was 2 February. 30 January, you may recall, was a Friday afternoon. We met late into the afternoon. And 2 February was a Monday, and I believe it was dispatched on that day, but it has no date on it.
PN3064
THE COMMISSIONER: Well, the fax at the top.
PN3065
MR PARRY: I think the fax at the top is not the relevant date.
PN3066
Now, there is reference to the 36 hour week flexible working arrangement, and there is reference to a proposal regarding certain matters, and in the bottom line there is a reference to:
**** NORMAN PETER DREW XN MR PARRY
PN3067
Note. While this proposal was a positive step forward, there are a number of other initiatives necessary before a 36 hour arrangement can be implemented as per the document tabled by SPI Powernet at the SBU on 30 January 2004.
PN3068
To what document is that referring, Mr Drew?---That is referring to the table I referred to a moment ago, where we were exploring possible options associated with the negotiation around 36 hours and related matters.
[12.27pm]
PN3069
Is this holding up a table?---Yes.
PN3070
That is the table, right. Do you have a copy of that before you?---Yes.
PN3071
Does the Commission have it?
PN3072
THE COMMISSIONER: No.
PN3073
MR PARRY: No. I will hand up a copy to the Commission, 30.1.04. Now, what is that document?---This document is a document that emerged from the discussions and negotiations leading up to 30 January SBU meeting. It was an attempt to explore what might be possible associated with introducing a 38 hour week and embracing trade offs that we were looking for. I might add that as per the minutes on 25 November and the tabulation from 11 November meeting we were also looking for implementation to be based on a 10 day fortnight. However, the unions categorically refused to progress discussions in that direction and so we pushed on as it were on the meeting of 30 January with this table just to see exactly what was possible in terms of implementation ideas.
**** NORMAN PETER DREW XN MR PARRY
PN3074
PN3075
MR PARRY: Now, to return to the other document, the e-mail that was sent, that says, this is at the top of the page:
PN3076
We believe this reflects what we agreed at Friday's SBU meeting at Thomastown on Friday, 30 January.
PN3077
What was the belief that you had about agreement at that meeting?---That is reflected in the words here and essentially it is that one particular aspect of this table which has been tendered, namely, the 4 am starts matter, had been discussed, had been varied from the table but it appeared as though some progress had been made.
PN3078
Right. I tender the undated e-mail.
PN3079
THE COMMISSIONER: This is the two page document you are talking about?
PN3080
MR PARRY: Yes, the one that is - - -
PN3081
THE COMMISSIONER: I had that down already as SPI3, Mr Parry.
EXHIBIT #SPI3 UNDATED E-MAIL
PN3082
MR PARRY: Right. Now, did SPI PowerNet sent out an EBA negotiations report at around this time? Perhaps I will hand you a document headed SPI PowerNet EBA Negotiations Progress Report and at the top of the page Internal Update Number 255 or 265, issued 2 February 2004?---Yes, I have that document, counsellor.
**** NORMAN PETER DREW XN MR PARRY
PN3083
Now, what are these?---This document is an example of many such documents that we send to our employees following each SBU meeting or each significant event between meetings and so there quite a number of them. Issue 1 occurred in October and the latest one occurred recently.
PN3084
Right. And the first paragraph appears to refer to the earlier meeting we have been discussing and it says:
PN3085
At the meeting we appeared to make some progress on a number of the more significant issues.
PN3086
Is that a fair summary of your view of the position at that time?---Yes, and for the benefit of the Commission, realise that this document would have been drafted and sent out about the same time as the e-mail, the undated e-mail which has been tendered, the Monday after the Friday SBU meeting.
PN3087
And the second paragraph refers to on the matter of the 36 hour week:
PN3088
We table another proposal for stage implementation and seek some trade offs to offset the costs associated with the shorter week. While the unions did not completely rule out our proposal we left the meeting to consider a new part trade off arrangement that was suggested during the negotiations. For a 36 hour week to be introduced further negotiations or trade offs will be necessary.
PN3089
Is that - - -?---That is correct, counsellor, but I refer the Commission to the last line of that paragraph there is a typo. That "or between negotiations and trade offs" should be on trade offs, or of trade offs. It is not or. Obviously negotiations would be about trade offs, so it appears that is a typo there.
PN3090
And below that there is a reference to a key issue about engaging contractors. You haven't really dealt with that although your statement does, Mr Drew. Your statement refers to one of the major - I think this is paragraph 15:
**** NORMAN PETER DREW XN MR PARRY
PN3091
A major area of disagreement is the limitation on the use of contractors.
PN3092
Perhaps you could describe to the Commission what that issue was?---Well, that issue still remains deadlocked and it is that whereas we appeared to be making some progress, since this time that this update was written we have become aware that the unions are intent on applying the clause on the use of contractors across every contract service that we require in the company and we were approaching the negotiations prior to that on the basis that this clause would be agreed, yes, they were looking for every contractor to have an EBA and maybe we could live with that or a derivative of that, but to have this clause applied to every single activity other than the main electrical activities we carry out, it was just too much of an impost on the business to be in non core activities like plumbing and carpentry and tree cutting and cleaners and design services which are not carried out in-house. So that is the point of difference now between the parties which has emerged since this was written.
PN3093
All right. Well, we will get to the sequence in turn, Mr Drew. Perhaps whilst I am looking at paragraph 15 there is also reference to another major area of disagreement being workforce size. What is workforce size?---Workforce size clause is essentially about, as it stands at the moment in the present agreement, excluding the company from restructuring its business in the face of changed business circumstances. Now, the company's position is yes, we have lived with that under duress for some years but what we are looking for is the contingent capability to be able to restructure the company when the need arises in order to secure the business and that is our prerogative as people managing the company and that is our position on that matter.
PN3094
Now, paragraph 15 also refers to the introduction of change by agreement. What is that issue?---That issue is one where the parties are also deadlocked in that in the current EBA we have words to the effect that if change proposals come forward which are necessary from time to time in running a business we will refer the matter to the Commission. We want to make sure that all change proposals can be properly dealt with so they are not left in limb and so we wanted to strengthen the words and we are prepared to refer the matters to the Commission for arbitration so that change proposals can be dealt with one way
**** NORMAN PETER DREW XN MR PARRY
or another. The union team are referring us to the disputes resolution clauses in the EBA, in the new EBA, and we are of some doubt as to whether they could be applied to all types of change proposals and so to remove the doubt, and we need to remove that doubt in terms of running the business, we would like to, or we are seeking that the words be changed so that matters that can't be agreed in respect of introduction of change are referred to the Commission for arbitration.
PN3095
THE COMMISSIONER: Mr Drew, what sort of change are we talking about here?---Could be changes to the types of roles that people carry out. It could be change in terms of joining work teams together and creatings of new skill groups.
PN3096
So organisational changes?---Yes.
PN3097
And changes which somehow impact on the workplace. You are not talking about changes like a decision to introduce a new technology as opposed to another technology, are you?---Yes, I am talking about those sort of things. I suppose it is easier to go the other way. What I am not talking about is matters that might require people to separate from the company. Those things would be dealt with under the workforce size clause.
PN3098
Yes. But in terms of introduction of new technology are you saying that those sorts of matters the company would be prepared to refer those to the Commission?---Yes, our position, Commissioner, has been that on any matters that fall under the category of introduction of change we are prepared to, if the parties can't agree and deal with the matter with our employees, we take on board the views of the employees and the unions, we moderate our position, if at the end of the day we can't achieve agreement we want a pathway so that proposals can be dealt with and put aside and we see the Commission as offering that pathway through arbitration.
PN3099
Do you have an agreement with the unions at the moment that these sorts of changes must be agreed?---Yes.
**** NORMAN PETER DREW XN MR PARRY
PN3100
You do?---And it also says that we can refer the matter to the Commission, but of course that is silent on whether that is for conciliation or for arbitration.
PN3101
So the unions can at the moment say to the company we do not agree to introduction of this sort of technology?---Yes. Well, I believe so.
PN3102
Unusual, Mr Drew. But go on?---Perhaps it a technicality, the difference between new technology and other change proposals. I am not aware of that division.
PN3103
Yes.
PN3104
MR PARRY: We will hand up a copy of the EBA after the luncheon adjournment, Commissioner.
PN3105
Now, stay with paragraph 15. Another major issue of disagreement you identify is the relationship between the agreement and the award. What is that to do with?---This was a matter of debate between ourselves and the union over the technicalities associated with the history of the award and other matters. I must admit it is not an area that I am fully informed on, but it is a matter that did receive a significant amount of discussion. It appears to be more or less resolved as we see our positions at the moment.
PN3106
Right. And finally, employee entitlements, what is that about?---Employee entitlements are about the so called bank, or the bank of entitlements that our employees have through leave, long service leave and other things and there is a view from the unions that we should establish a trust fund to secure those entitlements. We are not in agreement with that proposal. However, we are as we have said on a number of occasions, committed to implementing some aspects of securing those entitlements for our employees but not a trust fund which would require us to deposit 10 and a half million dollars into such a fund which the company obviously is not in a position to do.
**** NORMAN PETER DREW XN MR PARRY
PN3107
PN3108
MR PARRY: Now, your statement then refers to going to the Commission on 3 February 2004 for a report back hearing. What happened there? It is in paragraph 22?---We did - I am sorry, paragraph - - -
PN3109
Paragraph 22?---We reported the apparent progress from the meeting from the 31st to Deputy President Lacy and we advised that we appeared to be making some progress.
PN3110
Now, there was a mass meeting on 4 February 2004 and soon thereafter there were bans placed on, according to your statement - I am sorry, you received notice of bans being placed on 4 February. Do you see that?---Yes.
PN3111
Now, between the offer being made on 2 February, or the negotiations are then confirmed in writing, and 4 February over those two or three days, was there any discussions between the unions and SPI PowerNet about the offer?---Not that I am aware of.
PN3112
Right. And then your statement refers to - I withdraw that. Those bans that are referred to on 4 February, receiving notice of that time, were they subsequently implemented in accordance with those notices?---Yes, they were. They were implemented and they were supplemented.
PN3113
Right. And there is reference there to 25 February, another meeting with the SBU?---Which clause is this, counsellor?
**** NORMAN PETER DREW XN MR PARRY
PN3114
I am sorry, paragraph 25 refers to a meeting on 9 February?---Yes.
PN3115
And there were notes kept of that meeting?---Yes.
PN3116
I assuming that the Commission doesn't have that set of notes of 9 February 2004. Again it was one of those ones we assumed had been filed. I will hand up a copy. Do you have a copy of that, Mr Drew, I think I asked you that, of 9 February?---Minutes?
PN3117
Yes?---Yes, I do.
PN3118
Right. Now, it starts with actions:
PN3119
Discussion took place on the e-mail issued by SPI PowerNet to the unions following the SBU meeting -
PN3120
and I am reading it paraphrasing it clearly -
PN3121
There was significant disagreement on the wording of the SPI PowerNet record of the understandings reached.
PN3122
What happened at the start of that meeting?---That meeting devoted a fair bit of its early time to the union advising us that we misunderstood their position on 30 January and the end result of that was that all of the progress that we had reported to the Commission earlier and that we understood was made on 30 January was washed away and so absolutely zero progress had been made from the meeting of 30 January.
**** NORMAN PETER DREW XN MR PARRY
PN3123
There is reference to the three items, one being employment contracts. What does that refer to, that issue?---That refers to ongoing debate we have had through the SBU about employment contracts for people who are engaged in that manner and we agreed that we would work with the unions to develop a so called standard employment contract, particularly relevant for APESMA, and then we would submit that to Singapore Power for their approval with our endorsement. However the SBU is not accepting that such a document that we developed together has to be approved by Singapore board of directors.
PN3124
I see. The next one, the use of contractors. Was that discussed as set out therein?---Yes, it was discussed as detailed there.
PN3125
Was there any agreement reached on that matter?---No, there was no agreement reached on the matter. The matter was ongoing.
PN3126
And below that, flexible hours proposal, it has:
PN3127
Discussion took place on the contents of the e-mail. The unions advised the situation as stated in the e-mail was not their position on the matter. The unions advised after discussion with the members the following was their position on the matter.
PN3128
Is that what they set out being their position on these issues?---Yes. Their position as of 9 February, which is different to their position as we perceived it on 30 January.
PN3129
The 4 am to 6 am start to be at overtime rates and to be additional to the normal day work.
PN3130
That was different with your understanding of the position reached?---Yes, and that is just within the provisions of the current agreement.
**** NORMAN PETER DREW XN MR PARRY
PN3131
And the next one:
PN3132
The arrangement would only apply up to five times per annum.
PN3133
?---That is different to what we - that was a matter that we raised initially. However, as we have said in the correspondence that you have referred to, there was an alternative apparently agreed on 30 January. So we introduced the idea of five times per annum but we understood to have an agreement at the meeting of 30 January that didn't have such a caveat on it.
PN3134
All right. Now, the third item:
PN3135
The unions advised the undertaking of the work would be by mutual agreement only.
PN3136
?---Well, that is also in our view a variation on what was discussed on 30 January.
PN3137
And then there is a part to the SPI advising the proposals were part of an overall package and then there is reference to weekend days at ordinary rates with days in lieu, abolishing the radial allowance and replacing it with a conventional travelling allowance and it says in the minutes here:
PN3138
The unions advised these proposals were unacceptable and not agreed.
PN3139
That occurred?---That is right and at that point it became crystal clear that the union's had a position that there were to be no trade offs in relation to 36 hour week.
**** NORMAN PETER DREW XN MR PARRY
PN3140
Why do you say it became crystal clear?---Because over a series of meetings leading up to 30 January we had discussed various aspects of the 36 hour week claim and I refer the Commission to the tabulation from 11 November meeting which was one of the earlier meetings, the issue of 10 day fortnight and other related trade offs was tabulated there. On the 25th we have already referred to that minute. It was mentioned there and anyway, we have also referred to the table that we took to the meeting on 30 January where we were exploring is anything at all possible in association with the 36 hour week claim and we thought we had some progress on a minor aspect of that and at this point it became crystal clear at this meeting that absolutely zero had been achieved in any form of trade offs other than the companion point that the unions did advise that they were able to flexible on implementation where - - -
PN3141
THE COMMISSIONER: Sorry. Have you finished, Mr Drew?---Yes, Commissioner.
PN3142
Good, thank you. Mr Parry, if you continue till one will you finish your initial examination of Mr Drew?
PN3143
MR PARRY: No, I probably won't.
PN3144
THE COMMISSIONER: Well, why don't we break at this point and resume at 2 o'clock.
LUNCHEON ADJOURNMENT [12.47pm]
RESUMED [2.05pm]
NORMAN PETER DREW:
**** NORMAN PETER DREW XN MR PARRY
PN3145
THE COMMISSIONER: Mr Parry.
PN3146
MR PARRY: If the Commission pleases.
PN3147
Mr Drew, we were dealing with a document that was dated 9 February 2004. Do you have a copy of that?---Yes, I do.
PN3148
And I think we were on the last page and I think just before lunch you were expressing a view that all the progress had been washed away and zero progress had been made at that meeting. There is a note there in the last sentence above the heading Other Improvements:
PN3149
SPI PowerNet then advised it was taking the flexible matters off the table and was withdrawing any previous offers made in relation to flexible hours.
PN3150
Why did SPI PowerNet so advise that?---Where were you reading from, counsellor, I missed that?
PN3151
On the second page, above the heading Other Improvements, do you see that?---Yes, I do see that.
PN3152
THE COMMISSIONER: The last sentence.
PN3153
MR PARRY: The last sentence, do you see that?---Yes, I do.
PN3154
Why did SPI PowerNet so advise the unions?---Well, it was a culmination of a series of discussions, more or less a dozen meetings exploring all different avenues associated with the positions of the respective parties which had come to a point where absolutely nothing had been achieved. So since there were no trade offs to be offered for the introduction of 36 then there was nothing to be discussed.
**** NORMAN PETER DREW XN MR PARRY
PN3155
Now, below the heading Other Improvements it has:
PN3156
SPI PowerNet then discussed some of the other important EBA topics including introduction of change, workforce size and site allowances. No agreement could be reached on any of these items.
PN3157
How much discussion of those topics took place, Mr Drew?---The exact proportion of the meeting that was dedicated to those things I am not sure, but I am sure that those items have been discussed at a dozen meetings or more.
PN3158
And below the heading Next Steps:
PN3159
After some discussion SPI PowerNet advised of its concern of the progress of negotiations and that no agreements were being reached and we appeared to be going backwards compared with the progress at the previous meeting at Thomastown.
PN3160
Was that an advice given to the unions in that meeting, was it?---Yes, it was.
PN3161
Yes, I tender that document.
PN3162
PN3163
MR PARRY: The Commission is ahead of me.
**** NORMAN PETER DREW XN MR PARRY
PN3164
Now, do you have a document before you being SPI PowerNet EBA negotiations issued 9 February 2004?
PN3165
I will hand them up to the Commission?---I believe I do. I am just getting to it. Yes, I do.
PN3166
I have a bundle of these but, Commissioner, I was proposing to go through the documents in a chronological sequence rather than just hand up bundles and then have the Commission going backwards and forwards. Do you have a copy of that, Mr Drew?---Yes, I do.
PN3167
And that was distributed to employees?---It was.
PN3168
And it also refers to seeking the assistance of the AIRC to help the parties reach agreement. Did the company thereafter seek the assistance of the Commission?---Yes, we came to the Commission on 16 February to seek some assistance.
PN3169
PN3170
MR PARRY: Now, at the Commission on 16 February, it was before the Commission as constituted, what was said on the record there to the best of your recollection?---To the best of my recollection is that we explained to the Commission that we were making no progress and we were seeking some assistance from the Commission and I recall the unions were of the view that they did not require the assistance of the Commission.
**** NORMAN PETER DREW XN MR PARRY
PN3171
Was the company prepared to engage in conciliation?---Yes, we were.
PN3172
Now, do you have another EBA negotiations update dated 16 February?---Yes, I do.
PN3173
PN3174
MR PARRY: Now, that refers to a meeting of the SBU tomorrow, on 17 February 2004. Was there such a meeting on 17 February 2004?---Yes, there was and that meeting occurred at the encouragement of the Commission.
PN3175
Have notes been prepared of this meeting?---Yes, they have.
PN3176
Have they been circulated in accordance with the practice of the others?---I believe not.
PN3177
Any reason for that?---Basically due to the level of activity on this matter they weren't circulated but I believe they have been passed on but not as promptly as would normally be the case. So they are with the unions at this time. That is my understanding.
PN3178
Do you have a copy of the document headed SPI PowerNet EBA Negotiations Single Bargaining Unit Meeting 12 of 17 February 2004 before you?---No, I don't believe so.
PN3179
Well, I will hand one to the Commission and to you. Okay. Now, you have that document before you, Mr Drew?---Yes.
**** NORMAN PETER DREW XN MR PARRY
PN3180
If we could go to the heading Actions:
PN3181
SPI PowerNet advised the unions it wasn't prepared to accept the 36 hour week proposal and intended to make an alternative offer to employees. The attached draft offer was tabled and discussed.
PN3182
Now, before turning to that table, it appears that the words "making an alternative offer" excited some concern about negotiating directly with employees and SPI PowerNet gave an assurance it wouldn't negotiate directly with employees. Did that occur, did it?---That was correct.
PN3183
And the unions advised they would like the next meeting to be based on a paper tabling of SPI PowerNet's position and the unions. That was advised by the unions, was it?---Yes, that was advised to us.
PN3184
Now, attached to this document is another document and the fourth page, Enterprise Bargaining Agreement SPI PowerNet Offer. Was that the document that was handed to the unions and spoken to?---I believe that to be the case.
PN3185
And if we could turn to that document, it includes on the first page four dot points, 4 per cent pay increase, revised relocation policy, discontinuation of the radial allowance and something to do with insurance cover. Then it deals with various claims by the unions and with regard to, I think it is on the third page in, there is introduction of change three quarters of the way down?---Yes.
PN3186
And that was the position I think you were describing to the Commission earlier about change being something that could be referred to the AIRC for arbitration?---That is right.
PN3187
Although there is a reference to electrical apprentice training. That was an issue regarding a demand for there to be ratios, was it?---Yes, one apprentice to each three qualified tradespersons is the claim.
**** NORMAN PETER DREW XN MR PARRY
PN3188
And not the page after that but the page after that,there is about two thirds of the way down the page, workforce size. There is a reference to business restructuring and that is the issue about workforce size I think you have referred the Commission to?---Yes.
PN3189
THE COMMISSIONER: Is that proposal envisaged at some point, Mr Drew, that there may be involuntary departures?---That could be an outcome of application of our proposed wording.
PN3190
MR PARRY: And then on the following page there is balance work life. That is in respect of claims for balancing of work and family life?---That is correct.
PN3191
And then I think you have also referred to no extra claims on the last page of this. There is no extra claims and what SPI was proposing and through this document, Mr Drew, at the end of a number of these matters I think you have set out whether the unions were agreed or not agreed with where the matters stood on occasions. That is the position, isn't it?---Yes, that is attached to the front and/or the back of this document I have. The same thing, yes.
PN3192
Now, these notes, the notes to which this is attached, set out I think on the first page discussion then followed on each of the union claims and that includes notes on what was discussed in respect of various of these matters?---Excuse me, counsellor, which document are you referring to?
PN3193
I am back to the document being the - - -
PN3194
THE COMMISSIONER: Mr Parry, I seem to have two copies of the documents. Is that deliberate or is it just an error? I have an SPI PowerNet EBA Negotiations and then a little bit later a repetition of that. There is no difference between the two documents I assume?
**** NORMAN PETER DREW XN MR PARRY
PN3195
MR PARRY: The 17 February?
PN3196
THE COMMISSIONER: Yes.
PN3197
MR PARRY: To be sure, to be sure. Yes.
PN3198
THE COMMISSIONER: No, that is okay.
PN3199
MR PARRY: Now, there is then discussion. Now, on the second page, this is of the document dated 17 February 2004, workforce size. It is three up from the bottom on the second page. The unions advised, "In your dreams". Were those words used, were they?---Yes, they were, on more than one occasion.
PN3200
They were used in respect of workforce size. Were they used in respect of any other claims?---I am not sure of that, counsellor.
PN3201
Right.
PN3202
THE COMMISSIONER: Perhaps the union representatives have seen too many re-runs of The Castle, Mr Drew?---Could be.
PN3203
MR BORENSTEIN: Mr Drew obviously didn't get the vibe.
PN3204
MR PARRY: On the next page there is no extra claims and the unions advised they didn't agree with the proposed clause and then there is reference to the 36 hour week proposal. This was discussed and after some explanation relating to business needs and costs, rejected by SPI PowerNet. What was the explanation that you recall relating to business needs and costs, Mr Drew?---As I recall we put the point of that 36 hours was a significant cost impost on running the
**** NORMAN PETER DREW XN MR PARRY
business. Unlike last negotiations in which we had one significant cost component and that was quantum. In this negotiation we are presented with two, quantum and 36 hours. We also indicated that it is not where we want to be. It is the opposite direction to where we want to be in respect of running a 24/7 business. We are interested in keeping the normal available hours the same and working on other flexible working arrangements and in addition there is a lot of inefficiencies associated with making up 20 minutes a day to complete our works program, who will work it, who will volunteer to work it, whether the team sizes are going to be the same and critical enough to do the job, whether we have to hand over jobs to other people who are willing to work the 20 minutes a day, that sort of practical difficulty. But the main reasons progressed throughout the negotiation were cost and not where we wanted to go for a 24/7 business.
PN3205
Right. Now, at the end of this meeting it has next steps:
PN3206
SPI advised of its concern of the progress of discussions that no agreements were being reached and we appear to be going backwards compared with the progress at the previous meeting at Thomastown.
PN3207
Was that advice about going backwards advised to the union representatives?---Yes, it was.
PN3208
PN3209
MR PARRY: Now, does the Commission have a document being an SPI PowerNet EBA Negotiations update dated 17 February 2004?
PN3210
THE COMMISSIONER: No, Mr Parry, I am sorry.
**** NORMAN PETER DREW XN MR PARRY
PN3211
MR PARRY: Do you have a copy of that before you, Mr Drew?---Yes, I do.
PN3212
Now, was the detail of the proposal circulated to employees?---Counsellor, could I just check that I am looking at the same document that you have in front of you?
PN3213
Yes?---The heading of the document is?
PN3214
It is an Internal Update Number 276, issued 17 February 2004?---Yes, I have it.
PN3215
Does it have an attachment to it?---Yes.
PN3216
And what happened here? What was distributed?---Well, following the meeting we distributed - - -
PN3217
Well, in the second paragraph it says:
PN3218
A lot of the detail of the proposal are shown in the pages attached to this update. The following is a summary of the benefits in the offer subject to an overall package being accepted.
PN3219
Do you see that?---Yes.
PN3220
Was this document circulated to employees with the attachment?---Yes, it was sent to every one of our employees via e-mail.
**** NORMAN PETER DREW XN MR PARRY
PN3221
PN3222
MR PARRY: Now, was there then a meeting on 20 February 2004?---Yes, there was.
PN3223
Was there notes prepared of that meeting?---Yes, there was.
PN3224
Were those notes circulated?---Not promptly in the normal fashion but they have been provided to the union as I understand since then.
PN3225
If I could hand a document headed SPI PowerNet EBA Negotiations Single Bargaining Unit Meeting 13, 20 February 2004?---I don't appear to have that document. I may have, just hold it. Yes, I do have that document. Yes.
PN3226
Now, it starts with Actions, SPI PowerNet:
PN3227
The unions discussed each item of the union claims and the following comments reflect the stage reached.
PN3228
I think that would mean in relation to each item. Was that what occurred at the meeting?---Yes, I would say so.
PN3229
You were present at the meeting?---Yes.
**** NORMAN PETER DREW XN MR PARRY
PN3230
And there is reference to site allowances. Is this to do radial allowances, is it?---No, it is not.
PN3231
It is not. What is it to do with?---It is to do with the unions interest in having the company pay a special site allowance to our employees when they are working on particular sites.
PN3232
At the bottom of the page, Introduction of Change:
PN3233
SPI PowerNet discussed the need for reference to a dispute resolution paragraph in the proposed clause.
PN3234
Was there any agreement reached with regard to that matter?---No, there definitely was not.
PN3235
Why do you say definitely?---Because this is a matter that we have been dealing with for a dozen meetings and we - - -
PN3236
MR BORENSTEIN: Sir, I can't hear this witness at all. I wonder if he could speak up.
PN3237
THE COMMISSIONER: I am sorry, yes. I am hearing you okay, Mr Drew, but perhaps if you could speak up for Mr Borenstein, please?---Yes, I will try to. I will.
PN3238
MR PARRY: Sorry, I think you were saying, as I heard you anyway, that this is a matter that had been discussed for a dozen meetings?---That is right, counsellor, and the parties are entrenched in their differing views.
**** NORMAN PETER DREW XN MR PARRY
PN3239
And other the page, workforce size:
PN3240
The proposed union clause continues to be an issue which the parties are unable to reach agreement on.
PN3241
That continued to be the case?---Yes.
PN3242
And at the bottom of the page there is reference to no extra claims and that still was a matter not agreed?---A significant area of disagreement, yes.
PN3243
And over the page, 36 hour week proposal. It says:
PN3244
This again was discussed including how the 36 hours would be spread. After some explanation relating to business needs and costs the proposal was again rejected by SPI PowerNet.
PN3245
Now, was this discussion similar to the discussion held in the previous meeting or different?---It was probably - the discussion probably took a little less since the parties had become polarised on the issue.
PN3246
Do you have before you Internal Update Number 278 issue, 24 February 2004?---Yes, I do.
PN3247
**** NORMAN PETER DREW XN MR PARRY
PN3248
MR PARRY: If the Commission pleases.
PN3249
Do you have that one of 24 February 2004?---Yes, I do.
PN3250
PN3251
MR PARRY: Now, a meeting - I am sorry, I think I have missed in my chronological attempts number 277 issue, 20 February 2004.
PN3252
If I could hand that up. Do you have a copy of that before you, Mr Drew?---Yes, I do.
PN3253
PN3254
MR PARRY: Yes, if the Commission pleases.
**** NORMAN PETER DREW XN MR PARRY
PN3255
Now, SPI12, the document of 20 February, in the fourth paragraph it refers to management canvassing employees views of the 36 hour week proposal and it found that most employees spoken to did not appear to strongly support the proposal. On what was that based in this document?---That was based upon some incidental discussions which were held with a few different employees across the company. I did not engage myself in those discussions but other members of our team did.
PN3256
Now, did you attend the meeting with Commissioner Merriman?---No, I did not.
PN3257
Did you attend the meetings with Mr Pope?---Yes, I did.
PN3258
They took place on 24 February, or thereabouts?---Well, certainly between our meeting of the 20th and the 27th.
PN3259
Could you tell the Commission what happened at this meeting with Mr Pope?---The parties assembled and - - -
PN3260
Who were the parties, I am sorry?---Representatives from the DBs and our - - -
PN3261
THE COMMISSIONER: The DBs?---Distribution businesses.
PN3262
Thank you?---And the three members of our negotiating team, plus Mr Hayes and Mr Arnett and Mr Rizzo and we were later joined by Mr Mighell.
PN3263
MR PARRY: Now, did the parties outline their positions at the commencement?---My recollection was there was a little bit of that, not too much, but more importantly, Mr Pope spent some time with each party privately and then reconvened towards the end with all parties present.
**** NORMAN PETER DREW XN MR PARRY
PN3264
In your statement in paragraph 33 you refer to this meeting with Mr Pope and you say:
PN3265
No issues were resolved. The CEPU reiterated there would be no agreement without a 36 hour week and the unions would not agree to any trade offs for the 36 hour week.
PN3266
Who said that?---My recollection was that Mr Arnett said that and Mr Hayes endorsed it with a yes, or some such positive gesture.
PN3267
And I think I didn't add in the CEPU saying the only matter - or reiterating the only matter for negotiation would be the timetable for implementation. Was that in the same discussion was it?---The same part of the mediation.
PN3268
THE COMMISSIONER: Mr Parry, before we move off those issues of SPI12 and 13, in SPI13, Mr Drew, which is the unions report to Government on EBA?---Are you referring to document - - -
PN3269
It is your circular, which I take it has gone to your employees?---Number 13?
PN3270
SPI13, yes. It is internal update 278?---Right, which I have in front of me.
PN3271
Good. In your statement in references to the meetings with Mr Merriman and Mr Pope you basically say nothing was resolved, but in the fourth paragraph of the internal update you say and I just quote:
PN3272
From the meeting it now appears that we are in a position to finalise agreement on most things except the unions continuing claim for a 36 hour week.
**** NORMAN PETER DREW XN MR PARRY
PN3273
What was the basis of that statement?---I am trying to recall back to the complexion of the proceedings at that time. I suppose we were optimistic that we could find some common ground on some of the issues that were between the parties and that were significant but we were recognising that the watershed issue was 36 hours.
PN3274
Yes. I just found it strange because the unions have basically the described the meetings with Mr Pope and Mr Merriman as not productive and your statement basically repeats that, but this circular seemed to give some hope that from the meeting you had progressed something?---I think it was also implying that we had another meeting planned on the 27th. We were looking forward to that.
PN3275
Okay, thanks.
[2.37pm]
PN3276
MR PARRY: Now, to turn to that meeting of the 27th that you were looking forward to. Do you have some notes of that, SPI PowerNet EBA Negotiations Single Bargaining Unit Meeting 14 of 27 February 2004?---Yes, I have that.
EXHIBIT #SPI14 SPI POWERNET EBA NEGOTIATIONS SINGLE BARGAINING UNIT MEETING 14, DATED 27/02/2004
PN3277
MR PARRY: Again are these notes that have been circulated date or not at all, as you were describing in respect of the two earlier ones?---Yes, they have been circulated later than usual.
PN3278
Now, the actions here:
PN3279
SPI PowerNet opened the negotiations by advising the union of his disappointment of not getting any agreement on the major issues, particularly the 36 hour issue.
**** NORMAN PETER DREW XN MR PARRY
PN3280
Was that so advised?---Yes.
PN3281
And discussion focused on the 36 hours claim:
PN3282
The unions advised their position was 36 hours and a pay rise. The unions also advised there would not be any trade offs but there would be a trade off in terms of an implementation timetable.
PN3283
You have there the unions advised. Who was doing the talking for the unions?---Usually it was Mr Georgiou who did most of the putting of the point of view.
PN3284
Do you remember this position being put in that meeting on 27 February that there would not be any trade offs?---Not specifically but I certainly can recall hearing that from the union representatives on numerous occasions. In fact it has been described in other ways, which I don't need to repeat here.
PN3285
What, it more derogatory ways?---Yes.
PN3286
THE COMMISSIONER: This is the issue of trade offs, Mr Drew, we are talking about?---Yes.
PN3287
MR PARRY: Well, what you are saying in strong terms, rejection?---Very strong terms.
PN3288
**** NORMAN PETER DREW XN MR PARRY
PN3289
MR PARRY: And at the bottom of the page there:
PN3290
SPI PowerNet's position is that the 36 hour week is not viable for the business. The current offer with its 4 percent pay increase, plus additional benefits, combined with our commitment to continued recruitment of apprentices and health and safety remains on the table.
PN3291
And that was the position, that it remained on the table?---Yes.
PN3292
PN3293
MR PARRY: And the second paragraph refers to disagreement between the parties on the major issues, particularly the 36 week issue has led to a deadlock in the negotiations. Was that a view you had at that time on 5 March?---Yes, it certainly was.
PN3294
And what were the major issues at that time?---The major issues were beyond 36. They were the priority issues I have listed in my witness statement of workforce size and introduction of change. They were also the significant issues I have listed in my statement of employee entitlements, no extra claims, site allowances, quantum, income protection, radial travel, relocation policy, those type of clauses.
PN3295
And these I think described in your statement from paragraph 37 onwards?---That is right.
**** NORMAN PETER DREW XN MR PARRY
PN3296
Now, after the meeting of 27 February has there been any other meetings with the unions?---Yes, there has been one.
PN3297
When did that take place?---Last Friday afternoon.
PN3298
And could you tell the Commission how that meeting came to take place?---Our general HR or employment services received, I understand, a telephone call inviting our team to join the union team at ETU House. This telephone occurred during the morning from Mr Georgiou as I understand and the meeting was to take place at 2.30 that afternoon, being last Friday.
PN3299
And did you have any understanding of whether this meeting was one of the official meetings or did it have some other status?---It was put to us that it most definitely had a different status, that it was unofficial and off the record, no notes, no documentation.
PN3300
THE COMMISSIONER: Do you we need to talk about this meeting in the same way as we talked about the previous meeting, Mr Parry?
PN3301
MR PARRY: Our position is on this, we have obviously considered this fairly carefully. My instructions are we so contacted, as the witness has given evidence, and we did so attend a meeting and we attended it on the basis that it was unofficial, off the record, not to be documented, but we, and I have taken instructions from Mr Drew on this, if it is to be put that this meeting is to be used or somehow to become part of this proceeding, we are quite happy to disclose what occurred there and I am quite happy to lead that before the Commission and Mr Drew is quite happy to give evidence of it.
PN3302
THE COMMISSIONER: Well, perhaps we should turn to Mr Borenstein to ask whether it is intended on his side that there will be any reference to this meeting.
**** NORMAN PETER DREW XN MR PARRY
PN3303
MR BORENSTEIN: No, we hadn't intended to, Commissioner.
PN3304
MR PARRY: So you had this meeting on last Friday and I want to take you to - - -
PN3305
THE COMMISSIONER: Are you going to go ahead in the light of that? I am in your hands here, Mr Parry. Mr Borenstein is saying that he intends to make no reference to this meeting.
PN3306
MR PARRY: I remember the exchange the other day. What I want to make clear and I intend leading this evidence from this witness is that following that meeting the position that Mr Drew has described in his statement remains the position.
PN3307
THE COMMISSIONER: Yes. Well, perhaps we should just acknowledge that there was a meeting and the position that has been outlined in both the statement and in the evidence today remains for SPI. Is that the position?
PN3308
MR PARRY: That will be the position and the very strong evidence.
PN3309
THE COMMISSIONER: Yes, good. And Mr Borenstein has informed us that he will not be making any reference to that meeting in his submissions, or in his questioning of your witness.
PN3310
MR PARRY: Right, that is satisfactory.
PN3311
Now, you have heard all that, Mr Drew?---Yes.
PN3312
Paragraph 49 of your statement sets out a view you hold and it is a view that - I am not going to get you to repeat it, but is that the view you hold today?---Yes, that is our view.
**** NORMAN PETER DREW XN MR PARRY
PN3313
Your view?---My view.
PN3314
THE COMMISSIONER: Essentially, Mr Drew, you are talking about the company's view?---I believe I reflect the company's view.
PN3315
Yes, good.
PN3316
MR PARRY: Now, I think there is the issue of the ban and their effect and whether they are going to alter the negotiations. I don't think, whilst my learned friend didn't jump up about paragraphs 50 onwards, 50 to 54, that is material that essentially relates to the effect of the bans. So we don't rely on paragraphs 50 to 54, but I do propose asking the witness, as I did Mr Minster, whether there are bans in existence, what the general effect of them is and whether they have had any effect to date on the bargaining position. Have you heard all that, Mr Drew?---Yes, I did.
PN3317
What are the bans?---The bans are a ban on availability, a ban on overtime, a ban on customer type construction, non residential construction work, company funded capital work, invoice processing and live work and also in the case of the CEPU, if I recall correctly, restoration of plant, save that it does not involve health and safety considerations. I think that is a summary of the spread of the bans applied by the four signatories to the agreement.
PN3318
And broadly, what effect are they having on SPI?---At the moment the effect is essentially being felt in the ban on non residential construction and/or company funded capital work in that we have about a 1.2 million dollar delay in our capital construction program because of the application of the bans. These projects that are being delayed are ones that are for either mostly for systemary enforcement and for installing new equipment to supply load growth in the coming months.
PN3319
Now, those delays that you refer to has affected the bans. What impact have they had to date on the negotiated stance of SPI?---To this point, none.
**** NORMAN PETER DREW XN MR PARRY
PN3320
Now, there has been some union statements provided in these proceedings and there is a statement provided by Mr Delaney. Perhaps if I could hand you a copy of Mr Delaney's statement. Do you have a copy of Mr Delaney's statement, Mr Drew?---I don't believe - - -
PN3321
We will hand a copy. If I could hand a copy of this to Mr Drew?---Thank you.
PN3322
Now, do you know Mr Delaney?---Yes, I do.
PN3323
He is referring in paragraph 3 to the negotiations for the 2002 SPI PowerNet certified negotiations. Were you involved in those negotiations?---Yes, I was.
PN3324
Now, over the page he expresses an opinion on paragraph 3 about the negotiations proceeded over very similar issues to the previous negotiations. What do you say to that summary?---In fact, counsellor, I think he said the current negotiations have proceeded and developed in a very similar way.
PN3325
But he also says over very similar issues?---And over very similar issues. Well, I would say it is a generalisation in comparison because at this time in the negotiations, last time, there were only two issues, quantum and workforce size to be discussed. All other issues had been agreed and obviously, as I have already mentioned, this time we have two significant cost components, quantum and 36 hours and in fact this time we also have four causes that didn't appear last time, relocation, site allowances, no extra claims and flexible hours and obviously also whereas the 36 hours last time was in the log of claims it really wasn't dusted off. It wasn't pursued, it wasn't negotiated. All I can recall is one discussion where we refused to discuss the implementation of 36 hours and was, to my recollection, never raised again. So obviously the complexion of the negotiations are quite different from where I sit and there are different issues and yes, we are negotiating about, or attempting to negotiate and we have reached a stalemate on clauses that have similar headings but the substance in some cases is different.
**** NORMAN PETER DREW XN MR PARRY
PN3326
Also Mr Delaney refers to in paragraph 8, he says:
PN3327
The statement that SPI will not agree to a 36 hour week is not a position has had all along in the negotiations.
PN3328
He refers to December 2003 SPI raising a number of trade offs that they would require for the 36 hour week to be introduced. Do you agree or disagree with that?---Yes, I agree but that is not the first time we raised such matters. We raised it on 11 November and also on the next meeting in November. I forget the date just at this moment. We certainly documented on 25 November that we needed to proceed on the basis of a 10 day fortnight. That is on the record so, you know, there was some discussions and some degree of negotiation before December, but certainly we did get into it in earnest in December and in January, as we have discussed.
PN3329
He also says there was some progress on the issue of a 36 hour week and the trade offs and then he says in the last sentence:
PN3330
However, before such negotiations were fully explored SPI PowerNet for no reason that was given to us took the 36 hour week off the table on 9 February 2004.
PN3331
What do you say to that, particularly with regard to no reason that was given to us?---Well, that is just absolutely not the facts. We did explore, as I have already said, implementation proposals. We did get all excited, if I could use that casual phrase, after the meeting of 30 January, but we were completely deflated on 9 February when all that we thought was gained was withdrawn by the unions and there was absolutely no progress and we explained time and time again that we have been seeking trade offs, there are none and there was nothing left to negotiate. It is just an example of the deadlock that the parties had reached over the issues.
**** NORMAN PETER DREW XN MR PARRY
PN3332
In paragraph 9 he refers to the radial allowance not being agreed to, said to be important. Is that the position, that it is said to be important?---It certainly is from our perspective and from the unions perspective.
PN3333
He says it was a matter raised in previous EBA negotiations?---That is true.
PN3334
And he expects it to be disposed of at the last minute in this one. What do you say to his expectation?---He is entitled to his expectation and I respect that. However, this system of radial travel is antiquated. It pays people money for so called travel irrespective of the distance travelled. It pays people to go to their normal depot. We feel it is time to move to a more equitable and consistent approach where if you travel extra kilometres you get paid in accordance with the ATO provisions of a rate per kilometre. That is what it time to adopt, not this system that is decades old.
PN3335
And it is a position that the company feels strongly about?---Very much so.
PN3336
THE COMMISSIONER: What is it costing the company each year, Mr Drew, any idea? Millions?---No, certainly not in order of. It is less than $100,000. It is probably somewhere around $50,000.
PN3337
MR PARRY: Why do you feel strongly about it?---Because it is not soundly based. What could be more equitable than paying people for the extra kilometres that they do actually travel?
PN3338
Now, Mr Rizzo has made a statement as well and he repeats in paragraph 12 that key issues in dispute were almost exactly the same as the current issues in the last negotiations. This is paragraph 12. What do you - - -?---I don't have this document.
PN3339
All right. You don't have, I am sorry. I will provide you a copy of Mr Rizzo's statement?---Thank you.
**** NORMAN PETER DREW XN MR PARRY
PN3340
Now, in paragraph 12 he expresses a summary that the key issues in dispute were almost exactly the same as the current issues. What do you say to that?---Yes, some of the key issues in dispute now were also in dispute in the previous agreement. However, the substance of the clauses that various parties are proposing are different. Their views are entrenched and as I have already said, there are at least four new clauses which weren't part of the previous negotiation, to my memory, in which we are deadlocked on.
PN3341
He also says in paragraph 14:
PN3342
During the previous negotiations for the 2002 EBA the company referred negotiations to the AIRC.
PN3343
What do you say to that?---Yes, that is correct.
PN3344
Which part of the negotiations went to the AIRC?---We went to the Commission on one issue and that is workforce size and the Commission was unable to help the parties and we went back into negotiation.
PN3345
And finally, Mr Georgiou has also provided a statement. Again I think this deals with the previous negotiations. He does express the view in the last paragraph, 17, that:
PN3346
The current negotiations are a little different from previous negotiations.
PN3347
What do you say to that?---I think I have already outlined the substance of how they are different, but it is crystal clear that at this time, last time round, we only had two issues, quantum and workforce size. This time we have quite a number of issues that we are deadlocked on, so how those could be regarded as similar and comparable, I wouldn't agree with that.
**** NORMAN PETER DREW XN MR PARRY
PN3348
I have no further questions, Commissioner.
PN3349
THE COMMISSIONER: Thanks, Mr Parry. It is 3 o'clock. I am proposing to go till 4.30. I am going to adjourn for 10 minutes. I am going to try and find some fans to circulate the air in this room a little bit. All these very heavy lines people at the back are probably generating lots of heat I think and it is getting a bit stuffy, so we will try and cool it down a bit. We will adjourn for 10 minutes.
SHORT ADJOURNMENT [3.05pm]
RESUMED [3.16pm]
PN3350
MR PARRY: Commissioner, I spoke to Mr Drew about taking his coat off and in your absence I gave him permission.
PN3351
THE COMMISSIONER: Yes, he is welcome to take his coat off, as you are, Mr Parry, if you wish.
PN3352
MR PARRY: I wouldn't want to get out of uniform.
PN3353
PN3354
MR BORENSTEIN: Thank you.
PN3355
Mr Drew, you told Mr Parry that your position currently at SPI is general manager, design and development, correct?---Yes, that is correct.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3356
And that is the position you have held since you went to SPI about three or four years ago, is that right?---No, I have only held that position since April last year.
PN3357
What was your position before that?---General manager, network services.
PN3358
You have said in your witness statement, or perhaps before I go to that, in your current position, can you just give me a brief statement of what your function or responsibilities are?---I work with a team of people to deliver the capital works program and a few other related activities.
PN3359
Now, the negotiating team representing SPI Powernet is you, Mr Graham Broomfield and Mr Bruce Amor, is that right?---That is correct.
PN3360
Now, what is Mr Broomfield's position?---Mr Broomfield is general manager, employment services.
PN3361
And Mr Amor?---General manager, network services.
PN3362
And what is the process by which the three of you work out the positions which you will take in various meetings, on the various issues that arise in the negotiations?---We obviously caucus, if I could use that word, between meetings. From time to time, we brief and take guidance from our managing director.
PN3363
Whose name is?---Nino Ficca.
PN3364
Is he located in Melbourne?---Yes, he is.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3365
And in terms of the final say on any outcome of negotiations on any particular issues, who are the persons who have the final say?---On issues, the negotiating team recommends the position on issues to the managing director. On a complete agreement, if we are ever to reach such a thing, we would make a recommendation to the managing director and in turn he would seek the endorsement of the director of our company board who resides in Singapore.
PN3366
I see, so is the process that as issues come up and are discussed, the negotiating team will come to you and make recommendations to Mr Ficca, is it?---No, it is not.
PN3367
I am sorry, have I mixed up - - -?---No, the team has been empowered to negotiate in good faith and from time to time, if I could give you an example, we have had 14 meetings and mediations on top of that, etcetera. We have briefed and taken commentary from our managing director probably on four occasions. We have actually sat down and say here we are to speak about this, apart from seeing him in the corridor and saying, you know, it is going fine or it is not going fine, so where necessary, we refer to the MD and clearly we need his endorsement to clinch a complete agreement at the end of the day and he would seek that endorsement from the director of our board. Usually it will only be one occasion when this matter goes to the director of our board. That is when we believe we have the basis of a good agreement.
PN3368
What I am coming to, Mr Drew, is where you have a difficult decision to make about, for example, agreeing to an issue for example like the 36 hour week and what you have been offered in return, if you are offered anything in return, is that a matter that would ultimately have to be decided by Mr Ficca or would that simply be decided by the negotiating team?---That particular matter was discussed with Mr Ficca very early on in the negotiations. I am talking about October, when it appeared in the log of claims and we formulated a position about that time and we have gone forward with that and we have had four or so incidental meetings with him about the general progress of the negotiations.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3369
My question was whether or not, if you got to a point where something was proposed as part of a resolution for that issue and I don't want to say that that issue necessarily could be resolved by itself, but if there was such a thing, is that something that Mr Ficca would have the decision to make about?---No, I am making the point that we would take a complete agreement, if we ever got to one, to Mr Ficca at this point in time. We won't be going to Mr Ficca with pieces of a possible future agreement. We understand what the company wants and what he requires. There is no further reference required to Mr Ficca at this time.
PN3370
Okay, so is the position, as you explained a moment ago, that when you first got the claim, you sat down with Mr Ficca and you had a discussion and looked at the issue of 36 hours being claimed and a position was adopted by the company and that you have been pursuing that position since that time?---That would be a reasonable statement.
PN3371
And you haven't changed that position since that time?---No, I believe not. Our position has been that we are looking for significant trade-offs and we want to be based on a 10 day fortnight. Those things are in the documentation from very early on in the negotiations.
PN3372
There are matters of judgment that are involved, are there not, in determining whether or not you have an adequate trade-off for the 36 hour week?---Yes.
PN3373
Okay, and the difference between reaching an agreement and not reaching an agreement could result, for example, as in this case, with the company being exposed to an arbitrated outcome, correct?---Correct.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3374
Now, in those circumstances, are you saying to the Commission that notwithstanding that may happen, nonetheless there is no process whereby Mr Ficca is called upon to make any decisions, everybody simply proceeds with the directive he issued in October?---No, that is a complete misconstruction upon what I said. Obviously, we can call Mr Ficca together at any time. However, at this point in time, after 14 meetings, we have done it a few times, as I have mentioned before. There is nothing new for us to advise Mr Ficca about at this time. When there is and if it is significant, well, we may call him together, but do you think that he was not part of applying to the Commission to seek their intervention at this time?
PN3375
Well, you see, Mr Drew, my job is not to think about that, but to ask you questions and to seek your answer and that is what I am trying to do?---And that is what I am providing.
PN3376
Well, I appreciate that very much. Now, you were taken by Mr Parry through a number of documents which the company prepared about the negotiations and I would like to just go back to some of those, if you don't mind. Could you have a look at firstly the document which is SPI2, which is the notes of the meeting on 25 November 2003?---I don't have that document at the moment. I had it, but there are so many documents and mine aren't marked like yours.
PN3377
It is the notes of the EBA negotiations on meeting number six, 25 November 2003?---Yes, I have it now, at the bottom of the pile.
PN3378
Now, you outline in the third and fourth paragraph a number of issues that were raised at that meeting and the position was adopted by the company and by the unions. In the third paragraph, the second sentence, there is a reference to the SPI Powernet claim for flexible hours. Now, can you just tell us briefly what that claim was about, that is the SPI claim for flexible hours?---At the meeting on the 25th, the claim I believe had already been aired at that time. It was centred around, in terms of flexible hours, some four am starts which would then effectively signal the start of the working day on a number of occasions, five occasions through the year and also - I think I am right in saying this - and also under the banner of flexible hours, we have a need for people to work up to 10 weekend days through the year at normal rate plus a day in lieu. I think that summarises our flexible hours position.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3379
So in terms of the second of the two matters that you raised, you were asking, were you, for workers to give up their overtime entitlement in return for a day off, correct?---That is right.
PN3380
So that the net effect in financial terms would be that workers who would previously - sorry, that workers who did this work under the existing enterprise agreement would be paid their overtime, whatever it was, whereas the financial effect of your change would be that they would effectively have the value of ordinary time pay?---That is right, because it was being proposed as a trade-off for 36 hours, which is an additional cost to our business.
PN3381
All right. Now, what is the significance of the 10 day fortnight that you say is a precondition for the 36 hours? How does that differ from the present situation?---Currently we have 155 people working in the field and they work a nine-day fortnight. Other people around the business, some work nine days, others work a flexible working arrangement and since we are running a 24/7 business, we are keen to move to a 10 day fortnight operation.
PN3382
And what does that mean in terms of impact on workers, in terms of the hours that they work? An ordinary fellow who is working at the moment under the existing award arrangements, if the 10 day fortnight were to be introduced, how would that person's employment pattern change?---Under 36 or 37.5?
PN3383
Under your 10 day fortnight?---Well, the 10 day fortnight was being talked about in connection to 36 hours.
PN3384
THE COMMISSIONER: For the purposes of the answer, Mr Drew, perhaps give it in terms of a 37-1/2 hour week, what would it mean to move from a nine-day fortnight to a 10 day fortnight?---That would be some reduced minutes which I can't compute at the moment per day because there would be an extra day worked.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3385
So you would reduce the daily hours? I think the figure is around about 26 minutes a day, but you work an extra day, instead of working nine, you work 10?---Yes. That would be the order of it.
PN3386
MR BORENSTEIN: And you say that would provide the company with some significant productivity offsets or benefits?---As part of a collection of trade-offs, it would provide us with better coverage for a 24/7 operation.
PN3387
THE COMMISSIONER: And obviously if you worked a 36 hour week, a 72-hour fortnight, 10 days, seven hours 20 minutes a day?---Something like that, Commissioner, yes.
PN3388
MR BORENSTEIN: You are much quicker than I am, Commissioner.
PN3389
THE COMMISSIONER: I am not even sure my arithmetic is right, by the way.
PN3390
MR BORENSTEIN: It is close. Could I ask you to then move on to the next document which is the e-mail report of the meeting on 30 January which is marked SPI3?---Yes, I have that.
PN3391
There are three issues that you raise here and there is a document or a chart which I believe is relevant for those minutes as well. Is that correct?---Yes, that is correct.
PN3392
That is SPI4?---Yes, I have that.
PN3393
Now, in relation to the first item in the e-mail which is the 36 hour week, there is a proposal which you have got in italics and underlined which is that:
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3394
Field staff would be available to work up to five times per year starting at four am with no penalty rates.
PN3395
That proposition was amended and am I correct in my reading of the amendment that effectively the two hours between four am and six am would be paid at overtime rates? Is that right?---Yes, that was what the union was proposing.
PN3396
Well, the underlying part of the section says:
PN3397
After some discussion, the proposal was significantly amended as follows.
PN3398
Do you see that?---Yes.
PN3399
THE COMMISSIONER: What are you referring to here at the moment, Mr Borenstein?---SPI3.
PN3400
Thanks. I have got the chart out.
PN3401
MR BORENSTEIN: It is the first section of SPI3.
PN3402
THE COMMISSIONER: Yes.
PN3403
MR BORENSTEIN: So you see that it seems to read that the original amendment which didn't involve overtime for those two hours had been amended to provide for overtime for those two hours. Is that your reading of it?---That is what was being offered by the unions at this meeting.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3404
And what was the employer reaction to that?---The employer reaction was not to that matter in a singular sense. Our reaction to everything else that was discussed at that meeting, some of which is reported here, was that it appears as though we were making some progress on the table.
PN3405
As a discrete issue, accepting what you say for the moment, that it could only be considered as part of an overall situation, but as a discrete issue on the four am start, what is put in this part of the document and which you have described as a union suggestion was, in fact, acceptable to the company. Is that not correct?---Well, counsellor, we didn't consider the outcome of this meeting in parts. We considered this section one of our negotiations, section one being the heading and we considered - I can give you our position on everything that was discussed in relation to heading one, but we didn't go into ticking off sub-parts of what we discussed.
PN3406
No, but, Mr Drew, when you are negotiating an enterprise agreement and there are 50 items on the agenda, you go through the items one by one, no doubt?---And this is not one of those 50 items in our EBA.
PN3407
No, that is right, but what I am saying to you is that this is one of the issues that was proposed by the company as a possible trade-off?---One of the issues and it got varied on request from the union at the meeting.
PN3408
That is right, but you put forward a proposal for a trade-off and you ask the unions to consider it and they come back to you with their position. Now, surely at the end of the discussion, people indicate, well, you know, we can't sign off in ink, but if all other things work out, the structure that we have reached will be acceptable?---That is a reasonable proposition.
PN3409
Okay, and that is what I am asking you about, Mr Drew. I am asking you whether at the end of the discussion on item one, the unions and the company had come to a position where, if other things are agreed, this process, if you want to call it that, was one that the company - one that was acceptable to the company?---Counsellor, I refer you to the note at the bottom of section one. We regarded this as a positive step forward.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3410
Yes, and it goes on to say, doesn't it, there are a number of other initiatives necessary before a 36 hour arrangement can be implemented?---That is right, because in the first line we say as part.
PN3411
Yes. Well, you talk about steps. Let us just talk about steps for a minute, Mr Drew. If you are going up a staircase and you are taking it one step at a time and you come to the first step and you find that the first step is sound, you may go to the second step. If the first step is not sound, then you won't go to the next step because you are not making any process. What I am asking you about very simply, Mr Drew, is when you completed your discussion about item number one, had you found that step to be sound, subject to being able to deal with other matters as well?---Yes, we regarded this as a positive step forward.
PN3412
In terms of the use of contractors, is it correct to say that as at the meeting on 30 January, there was no issue of concern between the union and the company in terms of what the union was asking for, for approval of contractors?---At that point in time, the only concern is listed in brackets at the end of this section on page 2.
PN3413
Well, what does that mean in the brackets?---It means we had some concern with the requirement for all our contractors to have an EBA.
PN3414
Can you just elaborate on that? What was the concern?---The concern is that many people, many companies supplying services don't have an EBA with the relevant union.
PN3415
And are you talking here about people who are existing contractors?---Yes.
PN3416
And is the concern about - - -
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3417
THE COMMISSIONER: I thought this morning, Mr Borenstein, the company's concerns went to the range of contractors that were proposed to be covered, including gardeners and people who supply coffee and a whole range of other things.
PN3418
MR BORENSTEIN: That is what I was trying to extract from the witness, whether that was the issue or whether it was something else?---But, counsellor, you specifically asked me for our position at this point in time. I said this morning, I said earlier that since those meetings, this meeting was on 30 January, since then we have become aware of the intention to broadly apply this clause across our business with all contractors. That wasn't known to us at this time, so you ask me to give my opinion at this point in time, so I gave it.
PN3419
Perhaps, although it takes it out of order, we will go to the issue that you have just raised, Mr Drew. You say that at some later stage, you became aware that it was sought to apply the contractor clause to a range of contractors providing all sorts of services to your company. Can you tell us firstly how you became aware of that?---We became aware of that at an SBU meeting in our offices from comments by Mr Hayes.
PN3420
Explicit comments that he wanted to cover every contractor?---No. As I recall it, when we were inquiring about the application of the clause and which contractors it would affect, the comment was, well, give us a full list of your contractors and we mentioned some of the non-core areas and there was no offer to exclude any of those. This was towards the end of a meeting as we were just wrapping up and the matter was left that way.
PN3421
THE COMMISSIONER: This is the meeting on 9 February, Mr Drew, is it?---Quite frankly, Commissioner, I don't remember which meeting, but it was certainly - - -
PN3422
That is the one where you say you were going backwards?---No. Well, I do remember it was later than the meeting of the 30th. We had meetings on the 7th, the 17th, the 20th and the 27th. I believe it was somewhere around probably the meeting of the 20th.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3423
20 January?---February.
PN3424
February?
PN3425
MR BORENSTEIN: So just to be clear, Mr Hayes said to you to provide him with a list of all your contractors and he would then indicate to you which contractors it applied to?---No, he didn't say those latter words.
PN3426
I see, so he simply said give me a list?---Provide me with a list.
PN3427
Okay, and did you provide him with a list or did you indicate that there are contractors across a range of activities that the company uses?---We discussed very briefly and we had discussed previously that there is a broad range of non-core contractors as well.
PN3428
And is it that state of exchange that has led you to the view that you held and seem still to hold that the unions persist in requiring the contractors clause to apply to the full gamut of all contractors that work with your company?---We are not advised to the contrary.
PN3429
I see. Have you expressly asked to the contrary?---We have expressed concern about who this clause would be applied to.
PN3430
On the original day?---I believe the unions are aware of our concern about non-core contractors and others.
PN3431
When you say you have expressed a concern, is that the concern that you expressed on the first occasion when Mr Hayes asked you for the list, or has it been done subsequently?---Counsellor, we discussed this issue probably a dozen times over all the meetings, obviously in the latter period more intensely and more fully. Exactly when we advised this and that about this issue, I don't recall.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3432
And do you say that the position as at today, so far as you understand it from the union, from the unions, is that they still require this clause to be applied to non-core contractors?---The negotiations aren't finished. However, we have not been advised to the contrary.
PN3433
Are you definite about that?---Yes, I am definite about that.
PN3434
And so if evidence is given by the union witnesses that the company has been told that they don't require this contractors clause to be applied to all non-core contractors, you would say that they won't be telling the truth to the Commission. Is that right?---No, I won't be saying that. They are entitled to their recollection of events, I am entitled to mine which I believe mine are a true representation of our knowledge of the union's requirements on this clause. Counsellor, I want it noted that you just said all non-core contractors, didn't you?
PN3435
Yes?---Thank you.
PN3436
No, I didn't say all non-core?---You did, counsellor, according to my recollection of a moment ago.
PN3437
THE COMMISSIONER: Well, let us just clarify what is intended here. As I recall the question, it was if union witnesses give evidence that they do not require agreement about - let me say deliberately, Mr Drew, they do not require agreement from the company regarding non-core contractors?---Commissioner, that was not what was said. If you check, you will find counsellor said all non-core contractors.
PN3438
Well, you have made that point to Mr Borenstein and what we are endeavouring to do is just to clarify what the question is?---Good, could we have it clarified, please?
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3439
MR BORENSTEIN: Can I perhaps assuage Mr Drew's anxieties?
PN3440
THE COMMISSIONER: Yes, please.
PN3441
MR BORENSTEIN: I am told by those taking notes here that I did use the word all non-core contractors?---Thank you, counsellor.
PN3442
And I am happy for the question to stand on that basis?---And you stand by that comment?
PN3443
Mr Drew, your function is to sit in the witness box and answer questions. My function is to ask you questions and if we do that, we will all get through this much more quickly?---Thank you.
PN3444
THE COMMISSIONER: And, Mr Borenstein, my function is to keep control of this Court and I intend to do that and I would ask both parties to be civil to each other, please.
PN3445
MR BORENSTEIN: I will repeat the question for you, Mr Drew, and you can give your answer. Do you say that the company has not been told that the unions don't require the contractors clause to apply to all non-core contractors?---We haven't been told that.
PN3446
Now, continuing on with SPI3, item 3 is the employment contracts issue. What do you say was the status of that issue as at 30 January?---As at 30 January, I would believe that we thought we had had a way through on this clause and that we would work together to develop a so called standard contract with in particular the APESMA team or person and we would then, once we had developed that and concluded it, recommend it for adoption in our company to Singapore. That was our position then.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3447
Yes, and Mr Georgiou raised objection about it going to Singapore, I think you told us?---Yes, Mr Georgiou has since raised an objection about the fact that what we work up together would have to be approved by Singapore.
[3.51pm]
PN3448
Based on your experience in negotiating agreements such as this, you would agree, wouldn't you, that that is clearly the sort of issue which will sort itself out as the more significant issues fall into place?---I would agree with that, counsellor, and that is why in my statement I haven't listed this matter in the priority or significant issues.
PN3449
Thank you. Now, the document which is SPI4 which is the table, this was a table which was prepared by the company to explain to the unions the process by which the company thought that it could affordably introduce the 36 hour week, is that correct?---No, that is not correct.
PN3450
Can you explain what the purpose of the table was, then?---The purpose of the table was, having reached a state where we had absolutely nothing firm in relation to 36 hours and the trade-offs we were looking for, the purpose of the table was to explore options of introducing 36 and related matters.
PN3451
And in terms of the hours reduction column, as you go down the page, is that intended to set out a process for a graduated introduction of the 36 hours?---Yes, that is what it is intended to convey.
PN3452
As to the third column, productivity savings, is that intended to convey the changes which were required by the company in return for the reduction in hours in each of the years?---Part of the requirement, yes.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3453
What do you mean by part of the requirement?---As I have referred to a number of times today, counsellor, our ability to adopt 36 hours is predicated on a 10 day fortnight. You will notice that that is not listed here. However, we were interested in exploring these matters, putting aside that entrenched disagreement on the 10 day fortnight. Also, we were negotiating a package. As always, we had indicated that there are a number of other clauses that were a priority for us, in particular workforce size and introduction to change, nonetheless to mention quantum.
PN3454
And if that is so, when were you proposing that those sort of changes would come into operation?---These changes here in the productivity column?
PN3455
No, the other ones that you have just mentioned, workforce change and so on?---They are all part of the parcel of clauses that we are negotiating for this agreement, so they would come into force when the agreement was reached.
PN3456
But do you say that those matters are also part of the offsets for the 36 hours or are they discrete?---No, those matters - are you referring to workforce size and introduction of change?
PN3457
Yes?---Those matters are just a set of clauses that are a priority for us and obviously we are looking for, in return for 36, all the priority issues and all the significant issues that I have listed in my witness statement.
PN3458
You see, the reason I am confused is this document is headed workforce flexibility, introduction of 36 hours, proposal submitted by SPI Powernet?---That is right, a proposal.
PN3459
A proposal for the introduction of the 36 hour week reads, is that misleading? I don't mean deliberately, Mr Drew. I just mean is it not accurate?---Counsellor, this was an attachment to the document dated 30 January which we have just been discussing and the note on the bottom of section 1 indicates the proper disposition. To take this chart out of its rightful place in the documentation and give it a life of its own is just misleading.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3460
So you say this chart is the document that is referred to in the document which is the e-mail? Is that right, and should be read together?---I am not sure if we referred to it, but it was attached to it as I recall.
PN3461
Well, I would just like to know which document you say it is part of. Is it the document that is the e-mail that we were speaking about a little while ago, which is SPI3? Is that the document with which we should read this?
PN3462
THE COMMISSIONER: It is the one headed to Mark Georgiou, Greg Arnett and Wes Hayes and Michael Rizzo.
PN3463
MR BORENSTEIN: Is that what you are saying?---This was tabled at the meeting on 30 January and this is meant to be a record of what occurred there.
PN3464
All right, and so we read the two of those together. Is that what you are saying?---That is what I am saying.
PN3465
Now, in the section headed number one in this e-mail that is addressed to Mr Georgiou, etcetera, we have set out the four am start proposition in the body of the section and then there is a note at the bottom:
PN3466
While this proposal is a positive step forward, there are a number of other initiatives necessary before a 36 hour arrangement can be implemented as per documentated by SPI Powernet on 30 January.
PN3467
Now, the document that is referred to there as having been tabled is this chart, is that what you say?---That is right.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3468
Okay, so doesn't that mean, if one takes these two documents together, that for the purpose of introducing the 36 hour week with the flexible working arrangements, the issues that we should look at are the discussion in SPI3 and the content of SPI4, the chart?---No, because you are ignoring SPI whatever number it is, which is a note from the meeting of the 25th where we have clearly stated that any outcome on 36 has to be based on a 10 day fortnight.
PN3469
The 25th of what?---November.
PN3470
That is not referred to in this document, I don't think?---No, it is not, but this is a chain of communication over a series of meetings. At every meeting, we don't discuss every item.
PN3471
I see?---This is not a record of a status of negotiations at this point in time across the whole gambit of clauses.
PN3472
No, that is right, but is it not the status of the negotiations on the 36 hour week at that stage?---No, it is not, not in its entirety.
PN3473
THE COMMISSIONER: And one of the items you are suggesting, Mr Drew, is not there as the 10 day fortnight item?---That is right.
PN3474
What do you make of the reference to nine-day fortnights in the bottom lefthand box?---That was just part of exploring what was possible. The status of this chart was simply that, to explore what was possible in terms of getting something firm on the ground around the whole watershed debate of 36 and related trade-offs.
PN3475
And just a further point, I take it the pay increase column indicates that if the company was able to secure a total agreement on 36 hours, it would also require a pay increase of no more than 2.5 per cent?---A total agreement on 36, yes, that is correct.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3476
MR BORENSTEIN: So you say that when we look at this document, we should take into account that the company had previously said it required a 10 day fortnight as part of the introduction of the 36 hour week, is that right?---Yes.
PN3477
And you maintain that that is the position notwithstanding, as the Commissioner has pointed out, that the proposal itself countenances a nine-day fortnight, do you?---Counsellor, in one of your own witness statements, the word explore was used by Mr Delaney as I recall and that is purely what it was, exploring what was possible in and around 36 hours and related trade-offs. It was not the complete story, it was never intended to be. It was an attempt to see whether we could agree to one thing.
PN3478
But if they agreed to this one thing, Mr Drew, they would be met - - -?---No, I am referring to one item in the productivity savings trade-off, could we get some agreement on something.
PN3479
The thing that is completely confusing is this, to me, anyhow. You put this document on the table and you tell the unions here is a proposal we want to talk about as a way of introducing 36 hours. It is called a proposal, submitted by your company?---Yes.
PN3480
And presumably that word is used deliberately. Now, you are in effect telling us that it is not really a proposal, it is part of a proposal for the introduction of 36 hours?---That is right, because this was a series of negotiations and this was just another one in the train.
PN3481
But as a proposal, as the next proposal on the train, is it a complete proposal or is it only part of the proposal?---It is part of the proposal associated with the 36 hour week and related trade-offs.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3482
Well, where in the notes of what happened at the meeting is it said this is only part of the proposal and if you want to see the rest of the proposal in order to respond to it, refer to minutes of meetings on whatever dates they were? That is not in the record of the meeting, is it?---Counsellor, are we given to believe that people come to the next SBU meeting and they have no recollection of any agreements or understandings from the previous meeting and we start each meeting looking at a piece of paper and begin our thinking from there?
PN3483
THE COMMISSIONER: Mr Borenstein and Mr Drew, I would have thought the note at the bottom of the reference to the 36 hour week is the qualification that you were looking for, Mr Borenstein. It does say:
PN3484
Whilst this proposal is a positive step forward, there are a number of other initiatives necessary before a 36 hour arrangement can be implemented.
PN3485
Does it not?
PN3486
MR BORENSTEIN: As per the documentated in the - as per this document.
PN3487
THE COMMISSIONER: As per that document.
PN3488
MR BORENSTEIN: Yes?---And so without us expressly saying, for example, that we no longer require the 10 day fortnight which was clearly stated in previous meetings, people have assumed that that then it withdrawn. Is that it? Well, that is a pretty big assumption.
PN3489
May I ask my next question now, please, Commissioner?
PN3490
THE COMMISSIONER: Yes, please, Mr Borenstein.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3491
MR BORENSTEIN: The issues in the productivity savings trade-off column in SPI4 in the first year include the switch yard, dressed and ready for permit at 7.35 am which I understand means that people have got to be ready to work at that time which involves some time saving for the company, is that right?---That is not correct, counsellor.
PN3492
Well, would you like to correct me and tell me what it does refer to?---Our people are paid from 7.30 in the morning and our people have work to do from 7.30 in the morning.
PN3493
Okay?---Are you postulating that they don't?
PN3494
No, I want to know what that items means, if you could explain it?---That item was specifically developed as something that may be beneficial on occasions if, for instance, our planning or other logistical matters meant that people couldn't progress their day's work from 7.30 or 7.35. May I say some more?
PN3495
Please?---It arises from the fact that we have 155 field employees; about 40 of those are regularly involved in taking of permits to work, so the work can be done safely. That generally happens around 10 to eight, five to eight, eight o'clock, say, and this point was brought in to the discussion as a small and extremely minor possible benefit on occasions when people find that they maybe haven't got other things to do. I need to remind the Commission that we have 214 award employees. Out of those 214, 40 are involved in permits, another 25 involved in permits on a very irregular basis. Of the 40, they do not take permits every day. The permits are only sometimes issued for one day or a few hours, sometimes for several days, so this was just a possible small, very small benefit if our planning is not working as planned.
PN3496
But however minute it may be in your thinking, can you help me to understand what it means? You say that people - you say they are paid to work from 7.30 I think you said. Is that right?---That is correct.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3497
Is it the case, if that is right, what is the need to have them ready to work at 7.35?---It is a little bit technical, counsellor, but I was trying to point out that on some occasions, when planning isn't going correctly, people may be not able to get onto their work because a permit hasn't yet been issued. This proposal was meant to deal with that on the infrequent occasion that that occurred and would involve us making arrangements for permits to be issued earlier.
PN3498
I see, so that although they are at work, they can't commence the work that they were proposing to do - I am sorry, they don't usually start the work that they are proposing to do on permits until later than 7.35 and this is a proposal to have them start at 7.35? Is that the summary of what it is?---In summary, and it happens on a very few occasions.
PN3499
Yes, you have said that.
PN3500
THE COMMISSIONER: You regard that as a relatively minor gain, Mr Drew, is what you are saying?---Well, a gain in the context that people are paid to work from 7.30 and that there is enough work for everyone to be gainfully active on things in terms of running a business from 7.30.
PN3501
MR BORENSTEIN: So instead of them actually starting their productive work around eight o'clock, this is a clause to try and get them to start around 7.35. Is that right?---No, counsellor, they can start work at 7.30 on productive matters.
PN3502
But no later than 7.35?---No, in relation to this item 1 in column 3, this was about specifically trying to address those occasions when the planning hasn't worked out as planned and people are held up from getting on with their permit work.
PN3503
The second item is the item of the four am start which we have spoken about in relation to SPI3. In the second year, the productivity savings, the first of them is the same, the 7.35 am issue. Is it intended that the four am start also apply in the second year?---Yes, once it is introduced and that would become the norm.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3504
So that carries through all the three years, is that right?---That was our intention.
PN3505
Okay, and then you have the radial allowance being replaced?---That is correct.
PN3506
Now, you were asked a little while ago by the Commissioner how much the radial allowance costs the organisation and you suggested a figure of the order of $50,000?---Am I allowed to augment that figure?
PN3507
Yes, if you want?---There are two figures in my mind and that is it costs us currently about 60,000 and if we were to move to an ATO base, it would cost us about 20,000, so the figure currently in terms of what it costs us now is 60,000, not 50.
PN3508
And the saving would be 40?---Yes, indicative numbers.
PN3509
Yes, of course. On that subject, are you able to give the Commission any indication of the overall annual revenue of the organisation, so that we can put this into context?
PN3510
THE COMMISSIONER: Well, than the overall annual revenue, perhaps another way of putting it is what is the current labour cost?---The current labour cost under award is what I mentioned earlier, $18 million, around 214 employees.
PN3511
MR BORENSTEIN: Without wishing to be rude to the Commission, perhaps I could ask nonetheless what the overall revenue of the organisation is.
PN3512
THE COMMISSIONER: By all means?---The overall revenue - - -
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3513
MR BORENSTEIN: Revenue income?---Before costs are accounted for?
PN3514
Yes?---Something in the order of 290 million per annum.
PN3515
I assume that the figures you gave us for the radial allowance costs, 60,000 and so on, were also per annum figures?---You are correct.
PN3516
Now, in the third year, should we take it that all of the productivity savings referred to in the first and second year are carried forward and then there are some additional ones?---Yes.
PN3517
And the first of those additional ones that you have got noted in column 3 is the 10 weekend days to be worked during each year at ordinary rates?---That is right.
PN3518
And we have discussed that and in the third year, you also say the revised relocation policy takes effect?---Yes.
PN3519
Now, can you just explain briefly, please, what the relocation policy is presently?---The current relocation policy allows for, if we are relocating an office other than within the CBD, people receive a $500 payment without substantiation because we are moving office and if their incremental travel is more than 25 minutes for the aggregate of morning and night, then they are given or offered or entitled to a payment for that extra time over 25 minutes I think computed for a year and as a small lump sum paid. That is the current arrangement, as I understand it.
PN3520
And what is your proposed revision to it?---The proposed revision is that the $500 payment is removed and if the incremental travel is more than one hour, then people will be entitled to a payment, a lump sum payment computed over a year or 18 months or whatever it is.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3521
And are you able to assist the Commission with an estimate of the cost saving that you expect to achieve by revising the policy?---I am trying to recall that, counsellor. I have maybe in the order of $20,000 per annum going forward on a sort of averaged normalised cost basis.
PN3522
THE COMMISSIONER: Mr Borenstein, just to perhaps to help Mr Drew a little, do you expect to be finished by 4.30?
PN3523
MR BORENSTEIN: No, I don't.
PN3524
THE COMMISSIONER: You don't? Would you expect to be finished by 4.45?
PN3525
MR BORENSTEIN: I don't want to mislead the Commission, but I doubt it. I think I might be a little while with him. Mr Drew was quite lengthy in examination in chief.
PN3526
THE COMMISSIONER: Yes. Well, we will finish at 4.30 if that is the case. I would point out to everybody that we have got two days next week. We are hardly into SPI and we have TXU to come and final submissions.
PN3527
MR BORENSTEIN: Now, you were taken by Mr Parry to paragraph 15 of your witness statement where you identified certain major issues and major areas of disagreement. If I could deal with the issues as you were asked about them, the first of them that you were asked about was the limitations on the use of contractors and you have told us a little while ago that there was as concern that the unions were seeking to extend the contractors' clause to all the contractors, all the non-core contractors. Is that what that particular clause is referring to?---Yes, that and our expressed concern about requiring them all to have EBAs.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3528
In terms of workforce size, the evidence that you gave Mr Parry was that this related to the ability of the company to restructure its workforce when it required to do so without the need to obtain the agreement of the organisation in respect of compulsory redundancies, is that right?---Without the need - our position is that we need that capability to do it without the approval of the unions, yes, the organisation.
PN3529
And the position at present is under the existing enterprise agreement that you do need to reach agreement with the union, is that right?---That is correct.
[4.18pm]
PN3530
And as we sit here today, does the company have in prospect restructuring of the kind that this clause is concerned with?---We have no plans to alter the size of our workforce.
PN3531
And so you are asking the organisations to give up an entitlement which they presently have to be consulted and to have their agreement obtained on this issue and you do so because you say according to your evidence that that is that the restructuring of your workforce is a management prerogative, correct?---Could you refer me to that quote, please, counsellor?
PN3532
It is not in - it is in the evidence that you gave to Mr Parry. You said that you had lived with this clause under duress. I assume you mean the clause in the existing agreement?---Yes.
PN3533
And that it is your prerogative to restructure as you see fit?---That is not what you said a moment ago, but that is what I did say.
PN3534
No, I was paraphrasing what you said, but you agree that that is your position, what I have just latterly said?---Yes, counsellor, and when you quote my words, would you please do it correctly?
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3535
THE COMMISSIONER: Can I ask that both parties again just show a bit of tolerance, which I am sure you are both doing? We have had a long day. It is getting hot. Mr Drew, I have to remind you, this is an application by your company to terminate the bargaining period of three unions who are bargaining with you and you are giving evidence which is meant to lead to taking away of their right to negotiate with your company. You have to expect that you are going to get fairly close examination by the representative of the unions and so I would ask you please just to be tolerant of the questions that are being asked?---Yes, Commissioner.
PN3536
Please continue, Mr Borenstein.
PN3537
MR BORENSTEIN: Do you have any knowledge or understanding of the general position in industry in relation to the accommodation of unions' opinions on questions of restructuring?---I am not aware of what the other businesses in the industry are doing.
PN3538
Okay, so you don't know in terms of industrial relations standards, if I can use that phrase, whether the provision for union agreement for restructuring is commonplace or not?---I don't know specifically, no, I don't.
PN3539
And when you and your colleagues determined to insist on this change to the existing enterprise agreement, did you make it your business to make inquiries of what the general standard in industrial relations is on this issue?---Could you explain what you mean by this general standard? I am not aware of such a thing.
PN3540
Okay, what I mean by that is did you make any inquiries to find out whether it is a matter of common occurrence or accepted practice in industry generally that union consent is allowed for in clauses providing for restructuring? Is that clear?---Yes. I never made any such inquiries.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3541
Now, would it make any difference to your company's position if the situation were that clauses of the kind which you say you have lived with under duress are, in fact, commonplace in industry?---I don't believe so.
PN3542
Now, the next item in paragraph 15 is introduction to change by agreement and is the position of the organisation, of your company, rather, on that issue that if agreement cannot be reached in respect of proposals for the introduction of change, that the matter be arbitrated, you refer to the Commission for arbitration?---Yes, that is our position.
PN3543
And the union's position, as I think you said this morning and you will no doubt correct me if I am wrong, the union's position that was put back to you was that this would be encompassed by the disputes clause. Is that so?---I believe that is their point of view.
PN3544
Okay, and the concern that the company has is that the company has a doubt as to whether in fact the disputes clause is apt to cover that sort of a disagreement?---That is right.
PN3545
Would you agree with me, then, that - I am sorry, just one last thing. When the unions have said to you that this issue can be dealt with and referred under the disputes clause, they have indicated that they would regard the disputes clause as being adequate to allow for an ultimate arbitration of the issue?---That is not my recollection.
PN3546
So is it your recollection that when the unions are speaking of dealing with these issues under the disputes clause, they don't envisage that you would be able to arbitrate?---No, I am not able to make that understanding either. What I do understand from the union's position is that they believe that the matter can be dealt with by the Commission through the disputes resolution procedure.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3547
That is right, and when the Commission deals with it, is it your understanding under the disputes resolution procedure that the Commission would be in a position to arbitrate?---It has been some time since I read the disputes resolution procedure. However, our whole motivation here on this clause has been to remove any doubt as to whether a matter of change can be brought to a conclusion and so we have indicated that we are quite willing to come to the Commission and have the matter arbitrated.
PN3548
What I am trying to get at here, Mr Drew, is whether this is simply a disagreement between the parties over terminology rather than substance. In other words, you say you want the introduction to change clause to have an ability to refer to the Commission for arbitration. The unions say there is already an ability in the EBA to refer it to arbitration and whether both of you are operating from the same premise that ultimately the matter would be able to be referred to arbitration. You don't think that is the position?---I don't think that is the union's position, but you need to clarify that with the unions.
PN3549
Okay. If that were the union's position and I ask you to assume for a moment that that is the evidence that they will give, then you wouldn't expect this issue would pose any obstacle to a resolution of the dispute between the parties if the other issues are also able to be resolved?---Before I got to that position, I would need to refresh my memory on the workings of the dispute resolution procedure.
PN3550
I was really proceeding on the basis of asking you to assume perhaps that it was open to have arbitration under the dispute resolution procedure?---Well, it is our view that since the union are intent on not having some simple words that matters can be referred to the Commission for arbitration, that they have some motive to disallow certain matters that could be treated under the disputes resolution procedure and therefore they couldn't be arbitrated.
PN3551
All right, and however justified that view may be, if that view proves to be wrong or can be demonstrated to be wrong, then this is not a big ticket item, is it?---How could the union's position any time between now and the next three and a half years be demonstrated at this point?
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3552
No, what I am saying to you is if the unions say we have no intention of preventing arbitration of these matters, but we believed rightly or wrongly that they could be arbitrated within the disputes clause, then that would meet the suspicions that you have, wouldn't it?---And we would just have those words in the agreement.
PN3553
Well, if that is right and if that is what it takes, well, then that may be so?---That all matters of change can be arbitrated on by the Commission through the disputes resolution procedure, those words.
PN3554
Well, if that is what it required. What I am trying to get at, I don't want to negotiate with you in the witness box, obviously - - -?---I thought you were hypothesising about where I might be.
PN3555
Yes, that is right. If it were clear that the disputes clause enabled arbitration of those issues to be undertaken, then that would solve this particular problem?---And how would it be made clear?
PN3556
Well, presumably by words?---Well, that might be a way forward, if the words are acceptable to us.
PN3557
And what I am saying to you is that if the unions tell this Commission that it was always their intention that that should be so in the sense of being able to arbitrate, then this would not be a major item or major obstacle to an overall agreement, would it?---Counsellor Borenstein, this is quite an unusual disposition because on several occasions, we have had the full litany of in your dreams, big ticket item, etcetera, etcetera, each time we have raised the matter of going to the Commission for arbitration. If you are now telling me that your organisations are able to think differently about it, then obviously we might be able to make some progress.
PN3558
All right. Thank you.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3559
THE COMMISSIONER: Mr Borenstein, it is now 4.30. Unless you wish to have one or two more questions that wrap up a particular issue - - -
PN3560
MR BORENSTEIN: I was going to another matter, anyhow.
PN3561
THE COMMISSIONER: Good. Let us just before we adjourn talk about next week. I have to say that I was in touch with Western Australia at lunch time and I was told it is 99 per cent certain that the other matter that I was going over there for on Tuesday and Wednesday will be resolved, so I think we can go ahead on the basis that it probably will be and we will advise you ASAP if that turns out not to be the case, so that means we will sit on Monday and Tuesday. I am suggesting we start at 9.15 on Monday.
PN3562
MR BORENSTEIN: Yes, that is fine.
PN3563
THE COMMISSIONER: And we will go through until five pm.
PN3564
MR PARRY: Commissioner, I am not sure, you are going to Perth on Thursday and Friday?
PN3565
THE COMMISSIONER: I am going to Perth on Wednesday evening.
PN3566
MR PARRY: For Thursday and Friday?
PN3567
THE COMMISSIONER: For Thursday and Friday, yes, and then I propose that we sit again on Tuesday, commencing again at 9.15 and if we appear likely to finish, I am prepared to sit on here until seven pm or thereabouts, but that is dependent on whether we can finish on Tuesday. Now, I understand at least one of the advocates is not available on Wednesday, Mr Parry. Now, we all understand what that means. If we don't finish Wednesday, we are not back here until after Easter, if we don't finish on Tuesday, I am sorry.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3568
MR BORENSTEIN: Commissioner, can I just say that for our part, if the situation changes at the other end of the bar table and Wednesday becomes an option, we are available on Wednesday.
PN3569
THE COMMISSIONER: Even part of Wednesday.
PN3570
MR BORENSTEIN: We are available.
PN3571
THE COMMISSIONER: Any chance of any part of Wednesday, Mr Parry?
PN3572
MR PARRY: Ms McLean is not and I was to be in Sydney. I will make an inquiry about that, but at present, no, but I will make what inquiries I can. I am certainly aiming to finish this on Monday and Tuesday.
PN3573
THE COMMISSIONER: Good, but it is not entirely in your hands, of course.
PN3574
MR PARRY: No, it is not.
PN3575
THE COMMISSIONER: Mr Borenstein, you will help as much as you can as well, I expect.
PN3576
MR BORENSTEIN: Yes, I will be happy to finish this case sooner rather than later.
PN3577
THE COMMISSIONER: Is there any other matter that we need to refer to?
PN3578
MR BORENSTEIN: One thing, transcript. We would be very appreciative if you could give some indication that we should get the transcript urgently.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3579
THE COMMISSIONER: Yes, I take it that the parties are looking for an urgent release of transcript. Yes, we will put an order in for urgent transcript. To apply to the whole of the matter?
PN3580
MR BORENSTEIN: Yes, these last two days.
PN3581
THE COMMISSIONER: From my point of view, that is necessary as well, because if the parties want a decision quickly, I want to have access to transcript as soon as possible. This matter is adjourned.
ADJOURNED UNTIL MONDAY, 29 MARCH 2004 [4.34pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
KENNETH MINSTER, RECALLED AND RESWORN PN2518
EXAMINATION-IN-CHIEF BY MR PARRY PN2518
EXHIBIT #P9 HANDWRITTEN NOTES OF MEETING PN2552
CROSS-EXAMINATION BY MR BORENSTEIN PN2561
RE-EXAMINATION BY MR PARRY PN2620
WITNESS WITHDREW PN2632
GREGORY ARNETT, ON FORMER OATH PN2633
RE-EXAMINATION BY MR BORENSTEIN PN2633
WITNESS WITHDREW PN2680
DEAN JONATHAN MIGHELL, AFFIRMED PN2681
EXAMINATION-IN-CHIEF BY MR BORENSTEIN PN2681
EXHIBIT #B13 STATEMENT OF DEAN MIGHELL PN2689
CROSS-EXAMINATION BY MR PARRY PN2702
WITNESS WITHDREW PN2864
MICHAEL RIZZO, AFFIRMED PN2872
EXAMINATION-IN-CHIEF BY MR BORENSTEIN PN2872
EXHIBIT #B14 STATEMENT OF MICHAEL RIZZO PN2880
CROSS-EXAMINATION BY MR PARRY PN2892
EXHIBIT #P10 NEWSLETTER PN2951
RE-EXAMINATION BY MR BORENSTEIN PN2989
WITNESS WITHDREW PN2996
NORMAN PETER DREW, SWORN PN3004
EXAMINATION-IN-CHIEF BY MR PARRY PN3004
EXHIBIT #SPI1 STATEMENT OF NORMAN DREW PN3023
EXHIBIT #SPI2 MINUTE OF MEETING PN3042
EXHIBIT #SPI4 TABLE PN3075
EXHIBIT #SPI3 UNDATED E-MAIL PN3081
EXHIBIT #SPI5 EBA PROGRESS REPORT, DATED 02/02/2004 PN3108
EXHIBIT #SPI6 PROGRESS REPORT, DATED 09/02/2004 PN3163
EXHIBIT #SPI7 PROGRESS REPORT, DATED 09/02/2004 PN3170
EXHIBIT #SPI8 PROGRESS REPORT, DATED 16/02/2004 PN3174
EXHIBIT #SPI9 ENTERPRISE BARGAINING AGREEMENT SPI POWERNET OFFER PN3209
EXHIBIT #SPI10 INTERNAL UPDATE NUMBER 276, DATED 17/02/2004 PN3222
EXHIBIT #SPI11 SPI POWERNET EBA NEGOTIATIONS SINGLE BARGAINING UNIT MEETING 13, DATED 20/02/2004 PN3248
EXHIBIT #SPI13 INTERNAL UPDATE NUMBER 278, DATED 24/02/2004 PN3251
EXHIBIT #SPI12 INTERNAL UPDATE NUMBER 277, DATED 20/02/2004 PN3254
EXHIBIT #SPI14 SPI POWERNET EBA NEGOTIATIONS SINGLE BARGAINING UNIT MEETING 14, DATED 27/02/2004 PN3277
EXHIBIT #SPI15 INTERNAL UPDATE NUMBER 281, DATED 27/02/2004 PN3289
EXHIBIT #SPI16 INTERNAL UPDATE NUMBER 285, DATED 27/02/2004 PN3293
CROSS-EXAMINATION BY MR BORENSTEIN PN3354
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