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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 6547
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER MANSFIELD
BP2004/2744
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
9.20 AM, MONDAY, 29 MARCH 2004
Continued from 25.3.04
PN3582
THE COMMISSIONER: Good. Now, is our witness available? Yes.
PN3583
MR BORENSTEIN: Commissioner, while Mr Drew is getting into the witness box, could I raise a logistical question? The issue of transcript. Mr Parry has indicated this morning that he won't be available on Wednesday, and as I understand it, the Commission will endeavour then, in those circumstances, to try and conclude this matter tomorrow. That makes the availability of transcript all the more critical. We have made some inquiries of the transcript people, and they tell us that they require the Commission to give a direction about urgency of transcript, but they also require that your Associate or someone in that position contact them in order to ensure that that process takes place, so that the transcript of today is available later today rather than on Wednesday.
PN3584
THE COMMISSIONER: Yes. Mr Borenstein, we will certainly give an order that transcript be provided urgently, and we will do whatever has to be done to ensure that it is provided as soon as practicable.
PN3585
MR BORENSTEIN: We appreciate that, thank you.
PN3586
THE COMMISSIONER: Thank you. Now, as you said, Mr Borenstein, we are going to endeavour to finish this matter in the two days we have available, but Mr Drew is still in the witness box. You haven't yet finished your cross-examination. You have several witnesses. And we also have to then go on to TXU - - -
PN3587
MR BORENSTEIN: That is right.
PN3588
THE COMMISSIONER: - - - and deal with their evidence and submissions. So I think we are going to be pressed for time, but let us see how we go.
PN3589
PN3590
MR BORENSTEIN: Mr Drew, when we finished on the last occasion, we were talking about the items that you had enumerated as major areas of disagreement, in paragraph 15 of your statement, and the final item that we hadn't yet dealt with was the item of employee entitlements. Now, that was the issues, was it not, where the unions were asking the company to create a trust fund to protect the accrued entitlements of employees?---Yes, that is correct.
PN3591
Yes. They had made a similar claim in the last EBA negotiations; is that correct?---I don't recall that, Mr Borenstein, it may have been correct.
PN3592
Okay. Do you not recall - or perhaps to assist you in recalling, can I suggest to you that there was a similar claim for a trust fund made on the last occasion and that claim was resolved on the basis of the unions accepting a letter of comfort, or something of that sort?---I do recall the letter of comfort.
PN3593
Yes. And is it not the case that the unions have indicated to you, in the course of negotiations on this issue this time around, that once again they would be prepared to discuss with you a mechanism of a similar kind, short of the establishment of a trust fund?---I don't think that is how our negotiations have gone at SPI PowerNet, although I am aware - I did overhear Mr Rizzo talking to some DB representatives at the facilitative meeting by Mr Pope, where some talk was engaged in terms of credit rating and other things were - might be a pathway through this disagreement.
PN3594
Yes?---But that matter has never been raised at one of our SBU meetings.
PN3595
Mr Drew, have you been at every one of the SBU meetings?---Yes, I have been to every SBU meeting.
PN3596
Yes. And have there been meetings outside the SBU structure where issues have been discussed with persons other than yourself?---As I have mentioned, the last week, the only meeting I wasn't present was the Merriman meeting.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3597
Are you in a position to say whether meetings have been had between Mr Broomfield and Mr Georgiou about issues in contention in the negotiations?---I am not aware of meetings. There may have been telephone conversation between the two, because they generally lead our SBU negotiations from respective sides.
PN3598
The reason I am asking you these questions, Mr Drew, is that Mr Georgiou will give evidence that he has proposed to Mr Broomfield a solution to this particular issue along the same lines that you say you overheard in respect of other DBs, that is, the credit rating and the auditor's letter. Are you not aware of that?---I am not aware of those discussions and such an offer to our business.
PN3599
All right. Are you able to dispute Mr Georgiou's evidence, if he gives that evidence, that he in fact did put such a proposal to Mr Broomfield?---I am not in a position to dispute that.
PN3600
Now, you gave evidence on the last occasion about this item when questioned by Mr Parry, and for the record, Commissioner, this is at transcript paragraph number 3106, where you said that you were not in agreement with the proposal for the trust fund, and I quote from the transcript:
PN3601
Mr Drew: 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 ten and a half million dollars into such a fund, which the company obviously is not in a position to do.
PN3602
And I end the quote there. Has there been any articulation from the companies to the union, of the measures which you refer to in that passage as implementing some form of security for the entitlements?---I would say generally, no. We have referred to our intentions there on several occasions, that we have our accounting and financial people looking at other ways in which we could bring about some security of entitlements, but we haven't, to my knowledge, articulated the options that the financial people are looking at.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3603
All right?---Because they are unclear at this stage as to which path we may be bale to go down.
PN3604
Which path generally, or which path on this particular issue?---This - on this particular issue of employee entitlements.
PN3605
I see, okay. Now, just returning briefly to the issue of workforce size that is referred to in paragraph 15, this is a claim which you raised - or the company raised during the negotiations for the last agreement, as well. Is that so?---I think - I believe that to be so.
PN3606
And the claim that you made on the last occasion was the same as the one you are making on this occasion, namely that you should not be required to secure the agreement of the unions for compulsory redundancies?---That is correct.
PN3607
Yes. And on the last occasion when you made this claim, was it justified to the unions on the same basis as you justify this time?---I can't recall those precise details from the two and a half years ago, but probably so.
PN3608
What I mean is, the reasons for advancing it last time, are they the same as the reasons that you advance it this time?---Yes.
PN3609
And on the last occasion this claim was ultimately conceded by the company and you accepted the continuation of the previous clause in the agreement; correct?---That is correct.
PN3610
And during the period since the making of the last agreement, there has been no issue of compulsory redundancies arising for consideration under this clause, has there?---I have some doubts about answering that question because there has been some advance, and I am having trouble recalling in which time slot, but two and half year - two years, most likely, no.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3611
Okay. Now, Mr Parry then took you to the document which is the notes of the meeting on 9 February, which is SPI6, Commissioner?---Meeting number 11?
PN3612
I beg your pardon?---Meeting number 11?
PN3613
Yes, that is correct?---I have it.
PN3614
Now this is the meeting that followed the meeting of 30 January which was explained in your e-mail on 2 February, which is SPI3, and you gave evidence, and indeed the document recalls that there was significant disagreement on the wording of the SPI record of the understandings reached at the last meeting on 30 January. Now, can I just deal with those misunderstandings that Mr Parry raised with you. The first of them, which is noted in SPI6 is the use of contractors - I am sorry, is the employment contracts. And there you have noted that the area of disagreement is over the need for the Singapore board of directors to give approval, final approval, to a contract that you here in Melbourne may agree upon with the unions. Is that a fair summary?---Yes.
PN3615
And in your experience, as a negotiator of these sort of agreements, is it correct that you wouldn't see this issue as one which would be, to use a colloquialism, a deal breaker, if the other outstanding matters were resolved?---I haven't listed this item in my priority and significant issues in my witness statement. So you could deduce that this is not a deal breaker.
PN3616
Good, thank you. Now, the next item is the use of contractors, and is it correct that the principal discussions that took place at the meeting on 9 February on this issue were - well, I shouldn't say the principal discussions - the discussions on this issue at the meeting were principally between Mr Hayes from the ETU and your Mr Broomfield?---That could have been the case, I don't recall.
[9.35am]
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3617
Well, let me perhaps endeavour to refresh your memory. Mr Broomfield - it is correct, isn't it, that Mr Broomfield asked Mr Hayes to which contractors the proposed clause that the unions were advancing would apply?---You are referring to as I recall the last few minutes of this meeting, as we were actually standing up around the table. Earlier in the meeting there had been, as I recall, some reference to this matter and as we were all sitting around the table, but you are referring to inquiries of Mr Broomfield to Mr Hayes at the very last few minutes of the meeting as we were disbanding.
PN3618
Yes. Well, I am at a disadvantage, Mr Drew, because I don't know the order in which these matters were dealt with at the meeting. I am simply going down the page of SPI6 of the notes. But in any event, Mr Broomfield asked Mr Hayes which of the contractors the proposed clause would apply to, yes?---Yes. Something to that effect.
PN3619
Something to that effect. And Mr Hayes responded that the clause would not apply to all non-core contractors, and I think you agreed with me - I am sorry, I don't know whether you did agree with me yesterday - on the last occasion - but do you recall Mr Hayes indicating that he did not intend the clause to apply to all non-core contractors?---No, I didn't agree with you on the previous occasion and I don't agree with you on this occasion.
PN3620
Mr Hayes was asked about contractors described as tree-clearers. Do you recall that?---Not specifically, no.
PN3621
Do you know what tree-clearers are?
PN3622
THE COMMISSIONER: People who clear trees, Mr Borenstein, away from power lines?
PN3623
MR BORENSTEIN: It may be something like that. I am just curious to know whether because Mr Drew says they weren't referred to specifically?---Yes, I do know what tree clearers are.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3624
Do recall there was a discussion about some small - some individual tree clearer contractors in Mildura and a concern by Mr Broomfield that they should be exempted from the clause? Does that ring any bells for you?---Mr Borenstein, as I recall, and I would like the Commission to note the setting; this is after some time, the meeting went through a range of issues and we were all standing up and there was banter across the table, and I overheard from one end to the other, Mr Broomfield asked some things of Mr Hayes. So, you know, it is not a particularly structured part of the meeting, but as I recall it, that was a type of hypothetical example of - that Mr Broomfield put towards Mr Hayes.
PN3625
Can I just explain, Mr Drew, I am not asking you to commit yourself on anything that you did not hear or don't know about. I am simply asking you about things and you will have to tell us whether you know about them or not, and if you don't know about them, well then, you don't. So please understand that. Now, when - again I am asking you whether you heard and recall that when Mr Broomfield raised this question of the tree clearers, Mr Hayes said that his union covered that work, but that he would be prepared to talk about individual cases being accommodated. Do you have a recollection about that?---No, I don't.
PN3626
All right. Do you have a recollection of Mr Broomfield expressing satisfaction with that as a solution?---I definitely don't.
PN3627
All right. And do you have a recollection then of Mr Broomfield asking the others at the meeting whether they were satisfied with that as a solution and you indicated that you were not?---I don't recall that.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3628
And as a result of that intervention on your part, no agreement was reached on that issue at that time. Again, do you have any recollection of that?---I do have recollection that there is no agreement on the issue of use of contractors at that time or this time.
PN3629
Do you have a recollection of Mr Hayes suggesting that a way around the problems with this clause might be to agree at the outset on a list of contractors that could be used by the company without the need for case by case approval by the union?---I do recall Mr Hayes asking for the list, something along the lines, give me your list.
PN3630
Okay. And what - - -?---To Mr - that was a request to Mr Broomfield.
PN3631
Yes. And do you know what list he was referring to?---I understood that to be the complete list of all our contracts.
PN3632
Isn't it the case, or do you not know, Mr Drew, that the company in fact has a list of agreed contractors with the union presently?---Yes.
PN3633
And is it possible that Mr Hayes was asking for that list?---That list he already would have.
PN3634
Okay. Any event, was there a suggestion to your recollection or not by Mr Hayes that a list of contractors could be agreed upon at the outset as a way of meeting some of the problems with the clause?---Mr Hayes did inquire about the list.
PN3635
Yes?---But our side was the company's management was of the view that or concerned that the list was going to be used to apply to a broad range of contract services. So, I wouldn't summarise my understanding the way you just did.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3636
Now, the next item that is referred to in the notes of 9 February is the flexible hours proposal. Now, you have noted under the heading: Flexible Hours Proposal, three items which are said to be the areas of disagreement or misunderstanding. Just so that we are clear about it, the first item that you have noted there is the misunderstanding over that item, or was the misunderstanding over that item to do with the time at which workers starting at 4 am would finish their day's work on those days?---Yes, that is - - -
PN3637
And was the company's position that 4 am would mark the start of their 7-1/2 or however many hours' work they do on a given day?---Yes. That is part of the story.
PN3638
And was the union's understanding or misunderstanding that their normal hours would start at 6 am and the two hours that they have worked before that would be treated as overtime as well as paid as overtime?---Yes. I believe that is the case.
PN3639
And is that the whole of the disagreement about that aspect, or is there something else as well?---Yes, there is.
PN3640
There is something else?---Yes.
PN3641
Could you tell us what it is, please?---We left the meeting on 30 January with a view that the arrangement would have an unlimited number of occasions when it could occur through the course of the year and that it wouldn't be by mutual agreement.
PN3642
I see?---Those things are in the minutes of the meeting on 30 January.
PN3643
Are they? Do you have those minutes there with you? This is SPI3, Commissioner?---I think it is the e-mail.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3644
This is the e-mail. Is that correct?---Well, you could stay on the present document, because item 2 and 3 advise you exactly what I just said.
PN3645
Yes. But - I understand that. Item 2 in the present document says that the arrangement would only apply up to five times per annum. That was the union's understanding. Is that so? And this was not SPIs understanding as there was no time limit set when the SBU meeting at Thomastown framed the draft agreement. Now, if we go back to the document that you just mentioned, that is, the e-mail, can you show us or can you direct our attention to that part of that e-mail which records that the arrangement would occur on an unlimited basis rather than just be limited to five times a year?---In the first line it says:
PN3646
In respect of 4 am starts for faults, breakdowns, emergencies and the AIS rebate scheme.
PN3647
Yes?---Those are practical circumstances which our people confront and there is no cap on the number of occasions listed there.
PN3648
Yes?---These are the words - this is the agreement we reached on 30 January.
PN3649
I see. What about the underlined part at the top which was the company's initial proposal?---Yes, the company's initial proposal.
PN3650
Was five times per year starting at 4 am?---And that is right, that is shown in the landscape table that is attached to that meeting.
PN3651
That is right. And it is also recorded in the actual minute or the note of the meeting. Now, the company's original position was five times a year and you say that the notes of the amendments there suggest that that was taken away and the proposal was then for an unlimited number of times. Is that so?---Counsellor Borenstein, the table on the back of this e-mail explains what was proposed to the meeting on the 30th.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3652
Yes?---Perhaps I could summarise it. What the company was seeking was for people to start at 4 am on occasions, five occasions, and for that to signify the commencement of the working day, and so nominally you would go home about 12 and receive a normal day's pay. We also were asking for this to be not by mutual agreement on the actual day when, you know, the few days before when the job is required.
PN3653
That is the five days that you wanted to be not by mutual agreement?---Mm. And we also did not ask for overtime to be paid from 4 am, so it is not - it is not appropriate for you in my view to be dissecting parts of - we went to a meeting on the 30th, we put a proposition. There was an understanding reached and then the understanding was not what we went into the meeting with, but we went away with that, which was different, which then led on to 9 February when absolutely nothing was agreed, and the parties were poles apart.
PN3654
THE COMMISSIONER: Mr Drew, the matrix shows in year one, the middle column, item 2;
PN3655
4 am start, up to five times per annum with no penalty rates/overtime.
PN3656
?---That is correct.
PN3657
You are saying that that was your original proposal?---That was our opening position at the beginning of the meeting.
PN3658
And then there were discussions?---Evolved.
PN3659
And as a result of those discussions, it became, in your understanding, an unlimited number of times per annum that individuals could be called on to do a 4 am start; in particular circumstances?---Yes, for the qualified circumstances of faults, breakdown emergencies and AIS.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3660
Right, okay. Thank you.
PN3661
MR BORENSTEIN: Thank you. Now, can I take you now to the next document which Mr Parry referred to, which is - - -
PN3662
THE COMMISSIONER: Just while you are looking at that, Mr Borenstein; Mr Parry, I understand you are - you have to leave us at some time this morning.
PN3663
MR PARRY: Yes, I have got - I will raise at some stage and leave the Commission. I have another - - -
PN3664
THE COMMISSIONER: And Ms MacLean will handle your matters in your absence?
PN3665
MR PARRY: Yes, until I return.
PN3666
THE COMMISSIONER: Good, thank you.
PN3667
MR BORENSTEIN: Sorry, Commissioner.
PN3668
Just one matter before I leave that 4 am start discussion, Mr Drew, the 4 am start that is referred to in SPI3, that is the e-mail, in the second paragraph under that heading, the first paragraph that is not underlined, there is recorded:
PN3669
In respect of 4 am starts for faults, breakdowns, emergencies for the AIS rebate scheme, current overtime rates will apply, the normal working day will commence.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3670
Now, isn't it correct that the proposal that you had for having the 4 am start for the five times a year, was in fact to meet those particular exigencies? That was the original purpose of the - of seeking the 4 am start?---Are you quoting from the third paragraph under heading 1?
PN3671
No, the second, in respect - the one that starts, "In respect of 4 am starts"?---Sorry, I was reading the wrong paragraph. Could I just read that?
PN3672
Of course?---And what was your question, please?
PN3673
My question was that in that paragraph there is explained the reasons for which the 4 am starts would be required, and I am suggesting to you and asking for your agreement with the proposition that they were the reasons for the initial proposal to have 4 am starts, five times a year?---Yes, they were some of the reasons. Probably the majority of the reasons.
PN3674
Yes. And - all right, thank you. Now, I was going to the document which is SPI11, which is the notes of the bargaining unit meeting number 13 on 20 February?---Yes, I have that.
PN3675
Now, on the issue of workforce size, it is recorded:
PN3676
The proposed union clause continues to be an issue which the parties are unable to reach agreement upon.
PN3677
Do you see that?---Yes.
PN3678
When you talk about the "proposed union clause", what are you referring to?---I believe we are referring to the clause which is fairly similar to the one we have now.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3679
Is it not identical?---I would have to put the two documents side by side but it is - - -
PN3680
Well?---Yes, it is fairly similar.
PN3681
It is not - it is not your understanding, is it, that the union seeks to change the existing agreement provision concerning workforce size; it is the company that seeks to change it, isn't that so?---That is correct.
PN3682
Yes, and so it is somewhat - perhaps I shouldn't criticise you, Mr Broomfield prepared these notes, but it is somewhat misleading to an outsider reading that document that it is suggested that it is a union proposition that is unable to be agreed upon, where in truth it is the company's proposition. Do you agree with that?---Yes, I would agree that it is our proposition.
PN3683
Yes. Do these minutes - I am sorry, I don't know that we established this early in the piece, you did indicate that these notes were provided to the unions. Are they also circulated within the company?---I don't believe so, but I suspect that they are provided to our employees who are taking part in the SBU meeting.
PN3684
Right, they don't go to Mr Ficca, for example?---Not that I am aware of.
PN3685
Can I then take you to the next document which is the EBA negotiations update of 20 February, which is SPI12?---Yes, I have that.
PN3686
Is it possible for you to recall who would have drafted this document?---The normal practice is, Mr Broomfield drafts and myself and Mr Amor comment on the draft, and then it is issued.
PN3687
Okay. This is a document that goes to all your employees, is that so?---That is correct.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3688
And it is intended to give them a fair and accurate description of the state of play on the negotiations?---Yes.
PN3689
Now, you were asked by Mr Parry about the fourth paragraph of that document where it is noted that:
PN3690
Management had canvassed employees views on the 36 hour week proposal and found that most employees spoken to did not appear to strongly support the proposal.
PN3691
And do you recall that you responded to Mr Parry, when he asked you on what that was based, and I quote your answer:
PN3692
That was based on 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.
PN3693
And I end the quote. For the record, Commissioner, that is at paragraph number 3255. Now, would you not agree that a - that the impression that is conveyed by paragraph 4 is somewhat different than a report of "some incidental conversations with a few employees across the company"?---I don't see there are any difference between that paragraph and what I said last week in this place.
PN3694
And you don't agree that someone who was just provided - an employee who was just provided with this document might read paragraph 4 to mean that management had done some structured survey of the views of its employees on the 36 hour week proposal?---The paragraph is silent on that. It just says "canvassed".
PN3695
Yes?---It can be done in a lot of different ways in a small business like ours.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3696
The point of this clause - the point of this paragraph is this, isn't it, Mr Drew, that you were seeking to lure the workers away from the position which the companies - which the unions had taken up on the 36 hour week, by suggesting to them that many of their workmates were, in fact, not in favour of the union's position. Isn't that the intent of that paragraph?---No, it - - -
PN3697
THE COMMISSIONER: I think the words say, Mr Borenstein, "did not appear to strongly support" - - -
PN3698
MR BORENSTEIN: Yes.
PN3699
THE COMMISSIONER: It doesn't say "appear to oppose" - - -
PN3700
MR BORENSTEIN: No.
PN3701
THE COMMISSIONER: - - - it says "strongly support", and they - - -
PN3702
MR BORENSTEIN: Did I say - did I say "appear to oppose"?
PN3703
THE COMMISSIONER: No, no, but I think you did say something on the lines that employees did not support the union's position.
PN3704
MR BORENSTEIN: I am sorry, yes. "Did not strongly support the union's position". I am sorry, I accept the correction, Commissioner.
PN3705
Wasn't that the purpose of paragraph number 4, to - part of - as part of the, sort of, psychological warfare with the employees?---Mr Borenstein, you use words that are not appropriate for our business, nor employees and psychological warfare - we don't engage in those things in our company.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3706
Well- - -?---We never have.
PN3707
- - - you would agree at the very least wouldn't you, Mr Drew, that that significantly overstates the inquiries that were made in order to find out the views of employees on the 36 hour week? You would agree with that, surely?---No, I definitely do not agree with that.
PN3708
Okay, and you don't think that an uninformed reader of this document would have a different reaction if in fact it said that "we also advise that management has had some incidental discussions with a few different employees and most of those didn't appear to strongly support the proposal". You don't think that that would give a completely different tenor to that paragraph?---It is all in the - beholden in the reader, isn't it?
PN3709
Yes, it is?---And we have 290 of those.
PN3710
THE COMMISSIONER: I wouldn't like to analyse every bit of communication that went out from either side, Mr Borenstein, and check it for objectivity.
PN3711
MR BORENSTEIN: Could I then raise with you your evidence about the meeting that took place with Mr Pope on 26 February I think it was, and to which you refer in paragraph 33 of your statement?---Yes, I have that.
PN3712
Now, do you - you say in paragraph 33 that the union CEPU reiterated there would be no agreement without a 36 hour week and that they wouldn't agree to any trade-offs of the 36 hour week. Do you have a specific recollection of what was said backwards and forwards at that meeting?---Yes, I have a recollection of part of what we said - - -
PN3713
Right?--- - - - at that meeting.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3714
Can I put to you a proposition and ask for your comment on it as to whether it is correct or not? Do you recall Mr Hayes from the CEPU saying at the meeting words to the effect that his union had had productive negotiations with a number of the companies that were represented at that meeting with Mr Pope, and that some had already agreed to the 36 hour week and others were discussing how to implement it? Do you have a recollection of that sort of thing being said?---That could have been - something to that effect would have been said, I think, by Mr Hayes.
PN3715
Now, at that meeting, the - all of the distribution companies were present, correct?---Well, there was a large number of distribution people there.
PN3716
Yes?---I am not sure if it - I believe everyone was present.
PN3717
Right. And there were also representatives there from NECA, is that so?---That is one person there.
PN3718
Yes, and NECA is the - is a representative of a large number of contractors, is that so?---I believe that to be so.
[10.05am]
PN3719
Now, there was on the following day a meeting of the SBU, that is on 27 February, and you were asked to identify, and there were tendered notes of that meeting which is number 14 of 27 February, and it was marked as exhibit SPI14. Now, in that document you were asked about the comments that are recorded in the third paragraph, which starts with the words:
PN3720
The union advised their position was 36 hours and a pay rise.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3721
The union has also advised that there would not be any trade-offs, but that there would be a trade-off in terms of the implementation of the timetable. You were asked by Mr Parry whether you remember that position being put at that meeting, that there would not be any trade-offs, and your answer, and this appears at transcript paragraph number 3284, is as follows, and I quote, Mr Drew:
PN3722
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.
PN3723
So, can I just be clear that by your answer you have no specific recollection that at that meeting on 27 February the union said that there would not be any trade-offs?---I don't have any specific recollection of the incidental discussions at the short meeting on the 27th.
PN3724
THE COMMISSIONER: Are there any notes of the meeting with Mr Pope, to your knowledge, Mr Borenstein?
PN3725
MR BORENSTEIN: I haven't seen any, Commissioner?---Sorry, Commissioner, I was - my answer then was in respect of our SBU meeting of thew 27th.
PN3726
THE COMMISSIONER: I think you were - were you referring to the Pope meeting, or were you referring to the SBU meeting, Mr - - -
PN3727
MR BORENSTEIN: In this last question?
PN3728
THE COMMISSIONER: Yes.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3729
MR BORENSTEIN: The SBU meeting.
PN3730
THE COMMISSIONER: SBU. Thank you.
PN3731
MR BORENSTEIN: I think you understood that, didn't you, Mr Drew, that I was asking you about the SBU meeting on 27 February?---Yes.
PN3732
Yes.
PN3733
THE COMMISSIONER: Good. Thank you?---I would hope - - -
PN3734
MR BORENSTEIN: Yes. I was reading from the notes of that meeting, Commissioner, and then putting the question?---I would like to add that I have absolutely no doubt that I have been told, or I have heard people say on the union side on more than one occasion quite vehemently that there will be no trade-offs, end of story.
PN3735
Yes. You have said that - - -?---There is no doubt.
PN3736
Yes. You have said that in your answer previously. Now, on 27 February, do you recall that at this meeting the unions were in fact asking the company to give them a list of the trade-offs that the company was seeking for the 36-hour week with a view to discussing them?---That is a rather humorous proposition. If I could alert the Commission to the demeanour of the meeting, the meeting was quite robust, shall I say, and our team was quite animated in its disappointed that we were getting nowhere, and we were not going to provide Mr Georgiou with a list of items for him to put in his newsletter to howl down our position, so we were asked, and we were going to, then we decided we would not provide a list, because this was the 14th meeting and it was clear that the unions were being mischievous by asking us for such a list, after 14 meetings.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3737
So is the answer to my question about whether the unions asked you for that list, yes?---The list was asked for by Mr Georgiou.
PN3738
Yes?---With pen in hand.
PN3739
And in response to that, you said, why are we even talking about the 36 hours? Yesterday the union said at the Pope meeting that there would be no trade-offs, or words to that effect. Did you say something like that?---At this meeting on the 27th?
PN3740
Yes?---Yes, I could have said something like that.
PN3741
And did Mr Hayes reply to you that you should not worry about what was said at the Pope meeting and that he was there to negotiate an agreement, and that he was authorised to negotiate, and that if he reached an agreement with you, his union would sign off on it? Do you recall him saying anything like that?---Yes, I do recall some words to that effect.
PN3742
Yes. And you kept responding words to the effect, but you said there would be no trade-offs. Do you recall that?---No, I don't recall that.
PN3743
All right. Do you recall Mr Hayes saying, look, we are looking for a 36-hour week and there is an unresolved claim for a pay increase and there was scope to reach agreement? Do you recall him saying anything like that?---Definitely not.
PN3744
Definitely not?---You might understand my - I may not have been listening attentively since it was only a day or so since more senior union officials from Mr Hayes's area made it crystal-clear that there would be no trade-offs.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3745
Yes. So when you say you weren't listening carefully - - -?---I may not have been listening carefully.
PN3746
Okay. All right. So if Mr Hayes gives evidence on oath that he said those words, you are not in a position to dispute that?---I have not committed to memory what has been said at 14 meetings by each person at the meeting.
PN3747
So your answer is, no, is that right?---I would not dispute Mr Hayes's words if he makes those words.
PN3748
And do you recall that in the context of the discussion I have just recounted to you Mr Georgiou said, we are looking for a win/win situation?---Mr Georgiou has said that probably more than 100 times in the course of the 14 meetings.
PN3749
But do you recall him saying it on this occasion?---I don't, but he probably did, because he said it at every meeting.
PN3750
All right. And do you recall that one of the other managers who was at the meeting with you said, we are looking for some trade-offs for the 36-hour week, and Georgiou replying: Well, tell us what they are? Do you recall that exchange?---I think you are coming back to your original point, did Mr Georgiou ask for the list, and yes, I have answered that he did.
PN3751
All right. And then when he said that, do you recall that Mr Bruce Amor, one of the company's negotiators, then produced a list and started to read the items? Do you recall that?---Yes, I recall this part of the meeting, yes.
PN3752
All right. And do you recall that after he had read the first item which was: Reduction in Wages, you then interrupted him and said, no, we want to know whether you are prepared to consider trade-offs, or words to that effect?---That is certainly - well, yes, words to that effect, I would believe that would be correct.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3753
So you interrupted the other manager who was about to provide the trade-offs, and prevented him from doing that?---The trade-offs that were already known to the other side, yes, so why waste time repeating them?
PN3754
Okay. Well, why waste time going to the meeting, Mr Drew?---Well, that is quite right, Mr Borenstein. By the 14th meeting - - -
PN3755
Yes, but you were there?--- - - - we were in deadlock. There was absolutely no common ground at this meeting, or very little. That is the reason we are here today.
PN3756
Okay, but you were there. All right. But you were there, were you not?---Yes.
PN3757
And so were your fellow negotiators from the company?---Two other - - -
PN3758
Yes?--- - - - negotiators.
PN3759
THE COMMISSIONER: Mr Drew, did I hear correctly a moment ago that I think it was you that said, it might have been Mr Borenstein had asked, the trade-offs were already known to the unions?---This was the 14th meeting, Commissioner, and yes, they were clearly known, the heart of them on 36 was in the landscape table behind.
PN3760
Yes?---This has a number of them. And then in the minutes of the meeting on the 25th we had, you know, it needed to based on a 10-day week and various other detailed discussions it was - I believe it was very mischievous of Mr Georgiou to be asking for such a list at the 14th meeting.
PN3761
MR BORENSTEIN: Mr Georgiou, when you interrupted Mr Amor, repeated that the unions were looking for what he described as a win/win situation and said words to the effect: I bet these items are on your list, and then proceeded to identify four or five items. Do you recall that?---I recall something to that effect.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3762
Yes. And do you recall Mr Amor responding: No, there are more than that, there are about 15?---Something to that effect, yes.
PN3763
And then Georgiou said: Well, tell us what they are or give us the list, or words to that effect?---It could have been.
PN3764
Yes. And you kept saying to Mr Georgiou: Tell us if you will consider trade-offs. Do you recall that?---No, I don't recall this, I kept saying this, I interrupted that. This meeting, as I have described, was very robust. There was plenty of banter and solid words across the table from - and great howls of laughter and criticism going on all around the table, so put it in that context.
PN3765
And when you asked him, Mr Georgiou said: If you told us what the trade-offs were we could give you a response. Do you recall him saying that?---He could have said that as part of the charade.
PN3766
Yes. If it was a charade, Mr Drew, why did you ask him whether they were prepared to consider trade-offs?---Because this is the cornerstone issue we had been dealing with since - seriously since December.
PN3767
I understand that, but I thought you said a moment ago that the negotiations were well and truly deadlocked and you had a firm view that there was nothing that the unions could say that would change your understanding of what they had told Mr Pope the day before?---That is right. So, isn't it perfectly logical that if I have a view that they are already aware of the trade-offs we are seeking, and in a mischievous way with pen poised ready for the next newsletter somebody wants to write them out, it is just that it is just a pointless exercise. The fundamental issue is, are trade-offs available or not. So, I was asking that question along with other people.
PN3768
You became, as you said, very agitated about Mr Georgiou and his requests for the trade-offs, didn't you?---Mr Borenstein, I did not say I became very agitated. If you quote me, please quote me correctly.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3769
I wasn't suggesting I was quoting.
PN3770
THE COMMISSIONER: No, it wasn't a quote, Mr Drew, it was simply a proposition that you became agitated?---Yes. I was excited at the meeting, along with a few other people.
PN3771
MR BORENSTEIN: Yes. And in your excitement you directed some choice barbs at Mr Georgiou, did you not?---No, I don't - - -
PN3772
THE COMMISSIONER: Were they in return for others, Mr Borenstein, or - - -
PN3773
MR BORENSTEIN: Well, we will get to that, Commissioner?---This - Commissioner, I feel Mr Borenstein as well as asking me after 39 years in the industry to I know what a tree-cutter is, he is now proceeding to somehow paint me as someone abnormal in the negotiations.
PN3774
THE COMMISSIONER: No, he is not so far, Mr Drew, I can assure you. I can imagine that these negotiations were robust. You had 14 meetings, people were probably fairly tired of going over the same ground, and as you say, it was a fairly lively meeting, and I can - I am sure Mr Borenstein isn't painting you in any particular way?---Thank you, Commissioner.
PN3775
MR BORENSTEIN: Well, I am asking questions, Commissioner. I am not prepared to commit myself beyond that, and I think I am entitled to ask the questions, and I am entitled to an answer.
PN3776
THE COMMISSIONER: Yes. It was a legitimate question, Mr Borenstein.
PN3777
MR BORENSTEIN: Now, I think you said you got - did you use the word "excited" at the meeting?---Something to that effect.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3778
Yes. And did you say things to Mr Georgiou like that he didn't even have any members? No? Didn't say that?---No, I wouldn't have said that, because obviously he does have members.
PN3779
And did you say to him words to the effect: Whatever we tell you about the trade-offs you will put in your bourgeois newsletters?---No.
PN3780
Didn't say that?---No. In fact, on that occasion Mr Georgiou misquoted me as well.
PN3781
Did you say what I put to you or not?---I did not say bourgeois newsletters. I said, bogus newsletter, and Mr Georgiou misquoted me.
[10.20am]
PN3782
All right?---In fact, bourgeois is one of his descriptions of this place.
PN3783
Yes.
PN3784
THE COMMISSIONER: This place we are in right now, Mr Drew?
PN3785
MR BORENSTEIN: And did Mr Georgiou respond to you by suggesting that you should play the ball?---Yes, we did have all those encouraging words from Mark.
PN3786
On numerous occasions he said that to you, didn't he?---No. One - - -
PN3787
And you kept haranguing him for about five minutes to the point where one of the other managers suggested there should be a time out? Is that correct?---No, I don't recall that.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3788
So it may have happened and you - - -?---I do recall Mr Georgiou haranguing me at the end of the meeting.
PN3789
Yes, I see, all right.
PN3790
THE COMMISSIONER: Mr Georgiou wasn't close to tears at this stage, Mr Borenstein, I hope, was he?
PN3791
MR BORENSTEIN: We will ask him when he gets in the witness box, Commissioner.
PN3792
In any event, that was effectively the end of the meeting, wasn't it?---No, Mr Borenstein.
PN3793
You took a break and went out, did you not?---We took a break and both parties separated for some five minutes or so.
PN3794
And did you then resume?---Yes, we did resume.
PN3795
And was there any business transacted when you resumed?---There was some discussion on some issues, summarised by Mr Amor, who is part of our team. And I don't know whether it was five minutes, 10 minutes or whatever after that, the 14th meeting completed - was completed.
PN3796
All right. There was a - according to the document, a meeting scheduled for 5 March, according to the note under the heading, Next Steps?---Yes, that is correct, at that time.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3797
What was the purpose of having another meeting?---We were in the habit, the longstanding habit of setting meetings in a sort of automated way. As you pointed out, some discussions do take place between Mr Georgiou and Mr Broomfield between meetings. The complexion of our dispositions could vary. We always look forward to another meeting.
PN3798
On 9 February in SPI6, that is the notes of the meeting number 11, under the heading, Next Steps, it is noted that:
PN3799
After some discussion, SPI PowerNet advised of its concern of the progress of the discussions in that no agreements were being reached. We appeared to be going backwards compared with the progress of previous meeting At this point the SBU meeting concluded, and no further meetings were set.
PN3800
?---Yes, I see that.
PN3801
And then the same thing happened on 17 February, I think, in document SPI9, which is the meeting number 12?---Yes, Mr Borenstein, though after 9 February meeting, we came to this place to seek some assistance on making some progress on the 16th.
PN3802
Yes?---And at the encouragement of this place, we engaged ourselves in bargaining in good faith the very next day.
PN3803
But the trend that seems to emerge is that you have a meeting where you feel that you are not able to make any progress, then you don't fix another meeting. Whereas, in the other notes that you have produced, where there seems to some progress, you do fix a further meeting. Is that not the pattern?---Well, Mr Borenstein, if you put a proposition to me that a trend has emerged because in this minute, and on a quick scan, only in this minute, and perhaps one other, did we not forecast the next meeting, well, I don't think that is a trend.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3804
I simply asked you the question, Mr Drew, because you said that it was always your practice to fix another meeting. And I pointed out to you that there seems not to be a practice of doing it every time, and suggesting to you that perhaps the practice arises when there is a prospect of making some progress and not otherwise. And you disagree with that, do you?---I am not quite sure what you are trying to get at, Mr Borenstein, but - - -
PN3805
Well, I am not trying to get at anything, I am just trying to ask you a question and ask for an answer. I am suggesting to you that when you do fix - when you - the notes that you have produced seem to show that if the meeting in question is felt to be going backwards or making no progress, then o further meeting is fixed. And on other occasions, when there seems to be progress, meetings are fixed?---Mr Borenstein, that proposition is totally flawed. If you take a look at the minute from 27 February, that meeting produced absolutely zero progress, yet another meeting was planned.
PN3806
Well, that is exactly where I was heading, Mr Drew?---Well, it is the opposite of your proposition.
PN3807
I see?---Your proposition means nothing if you look at that piece of paper.
PN3808
Unless, of course, the interpretation that you put on that meeting is not correct?---Well, Mr Georgiou, and other people have told us that there are no such thing as a minute of these meetings, so maybe other people might have a different view of the meeting of the 27th, and they are entitled to that.
PN3809
Or maybe Mr Broomfield had another view of the meeting when he prepared these notes and suggested that further date?---Could have been.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3810
Could have been, okay. Now, the meeting on 5 March in fact was cancelled by the company, was it not?---Now, that is a preposterous proposition. If I recall, the discussion went like this. And I hope I am right. I believe I am right. We were actually at the remote site where the meeting was planned to take place. We were there for another meeting. And I witnessed my colleague, Mr Broomfield make a call to Mr Georgiou in the shower, at about 20 to nine in the morning. The reason we knew he was in the shower, because his son said so. And anyway there was a call back. The two parties got together a little bit later, about half an hour later, or something to that effect, and the proposition was put, and I paraphrase, that if we were to withdraw our application to this place, then there would be a meeting. If we didn't withdraw, then there would be no meeting. So that is a very interesting proposition that we cancelled such a meeting.
PN3811
Can I take you to the internal up-date of 27 February, up-date number 281, which is SPI15?---Yes, I have that.
PN3812
In the final paragraph, it is said:
PN3813
SPI PowerNet's position is that the 36 hour week is not viable for the business.
PN3814
Do you see that?---Yes, I see that.
PN3815
Is it correct to say that that statement is premised on the absence of any appropriate trade-offs?---It is premised on the absence of any progress whatsoever on a range of priority and significant issues I have listed in the witness statement.
PN3816
All right. Now, in paragraph 49 of your witness statement?---Yes, I have it.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3817
In the first two sentences of the paragraph you say:
PN3818
In my view the unions will not reach agreement with SPI PowerNet unless SPI PowerNet agrees to the 36 hour week. SPI PowerNet will not agree to a 36 hour week.
PN3819
Now once again, may we read that as meaning that SPI PowerNet will not agree to a 36 hour week in the absence of appropriate trade-offs?---That would be a reasonable proposition.
PN3820
Okay. Now, in the next sentence, the third sentence in the paragraph, you say:
PN3821
In addition, there will not be an agreement unless the unions agree to SPI PowerNet's provisions in respect of flexible work hours, introduction of change, workforce size, use of contractors and the other matters discussed above.
PN3822
Now, they are the matters that you have discussed in the preceding paragraphs I think, starting at paragraph 39 and following?---They are some of the matters.
PN3823
Yes. Now, isn't that sentence saying that there won't be any agreement with the unions unless they agree to everything that you have asked for on each of those items?---In the context of negotiating a complete package, there are 60 clauses.
PN3824
Yes?---We have some words that aren't far apart. We have some words that are totally aligned. We have others where we need to negotiate a little bit, but they are not show stoppers. The matters that I have listed in the previous clauses are those matters which are - in which we are polarised and poles apart on.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3825
Yes, but I was really focussing on the way in which you express yourself in that sentence, where you say:
PN3826
There will not be an agreement unless the unions agree to SPI PowerNet's provisions in respect of...
PN3827
The items that you then list. It seems to suggest that you are insisting that the unions agree to what you have claimed on each item that you mention? Is that a mis-reading of it? Is that your intention or not?---What was intended by that sentence is to convey that we have negotiated at length, and there are things that are required for the introduction of 36 hour week which, you know, obviously is a watershed issue. And both parties are fully aware of their position on thee matters, and we have a number of things, all of which I articulated on, that are required, for us to seriously consider it. Which we have in many, many, many ways, seriously considered it. And since there are no trade-offs, and there is no interest in a 10 day fortnight, it was just stating the obvious, I thought.
PN3828
But you weren't taking an absolute provision that the totality of everything that you had claimed on those items had to be agreed to in order for an agreement to be reached? You weren't taking that sort of absolute position, or were you?---On the matter of introduction, a changed workforce size, 36 hours and extended and flexible hours, and 10 day fortnight, I was. There are other clauses in which obviously, perhaps the progress that has eluded us to this point, may merge one day. But it is our view that it won't, because the parties are entrenched in their views.
PN3829
Now, in the final sentence of that paragraph, you say that:
PN3830
...the company's position on these issues is one of principle, cost, and the operational needs of the business.
**** NORMAN PETER DREW XXN MR BORENSTEIN
PN3831
Now you have elaborated on the cost factors previously, and the operational needs. Can you tell me what the principle is that you are relying upon for these claims?---By mentioning the principle, I was - particularly had in mind the workforce size clause and the introduction of change.
PN3832
All right. And what is the principle that you are speaking of in those two cases?---The principle evolves from the fact that our business does confront change in the business place, business workplace, and if we are to remain relevant as a business and have secure employment for our people, then we need to embrace change, and we need to have a process for embracing change. And that is what our position on those two clauses is about.
PN3833
Yes. all right. And in relation to both of those clauses, that is the introduction of change clause and the workforce size clause; they were both clauses which you agreed to on the last occasion when you entered into an agreement with the unions two years ago or thereabouts. Correct?---Yes, we have an agreed agreement which is the current EBA.
PN3834
That is all the cross-examination I have thank you, Commissioner.
PN3835
PN3836
MS MacLEAN: If the Commission pleases.
PN3837
Just a couple of things, Mr Drew. In the previous or the current EBA negotiations, what was the last issue to be agreed between the parties?---The workforce size.
**** NORMAN PETER DREW RXN MS MacLEAN
PN3838
And what was the position of the company in relation to that issue, on the last occasion?---Counsellor, could I correct my previous answer? I am a bit of two minds as to how close quantum and workforce size were resolved. Certainly they were the last two issues. Whether one was resolved a day before the other, I am not sure. However, the one that needed most debate was workforce size and we referred that to the Commission.
PN3839
And, I think I asked you then, what was the company's position in relation to workforce size on the last occasion?---Our company's position is consistent with the position we have now, and that is that we need to be able to restructure the business in the face of business change; to secure the business and the jobs.
PN3840
Right. Now, you were asked some questions by Mr Borenstein in relation to the meeting that took place between the parties on 27 February, and he took you to the minutes of that meeting. That was the last meeting between the unions and the employer, was it not?---That was the last so-called official meeting.
PN3841
Yes?---There was an off-the-record meeting with some of the SBU members.
PN3842
All right. And you were asked some questions about an exchange between yourself and Mr Georgiou during the course of that 27 February meeting, do you recollect that?---I recollect those inquiries, yes.
PN3843
Yes, and you were asked whether Mr Georgiou listed a number of items which he described as trade-offs, and said that something to the effect of, "They - I bet they are on a list", something along those lines. Do you recollect that?---Yes, I do.
PN3844
Yes, and what were the items that Mr Georgiou thought might be on such a list?---I don't specifically recall the first five items he howled across the table. I could hazard a guess, but that doesn't help the Commission.
**** NORMAN PETER DREW RXN MS MacLEAN
PN3845
All right.
PN3846
MR BORENSTEIN: Commissioner, I don't think it is appropriate language for this witness to describe the goings on as "howling across the table", and I would ask that he be cautioned not to use that sort of language.
PN3847
THE COMMISSIONER: I am not prepared to caution him on that one, Mr Borenstein. I think it - in the circumstances the negotiation and Mr Drew's answer, it is not unreasonable.
PN3848
MS MacLEAN: Now, Mr Drew, you were also asked some questions in relation to that particular meeting of 27 February, about the position of the unions in respect of trade-offs. Was it your recollection of that meeting and the discussions that took place, that Mr Georgiou, or any other - - -
PN3849
MR BORENSTEIN: Excuse me, Commissioner, this is a leading question. You should ask him what his recollection was, not put to him what it is.
PN3850
MS MacLEAN: Right, I can do it that way. Mr Drew, coming back to the meeting of 27 February, what is your recollection of the exchange between yourself and Mr Georgiou in relation to the question that you asked about their preparedness to accept trade-offs? In relation the 36 hour week?
PN3851
THE COMMISSIONER: This is the meeting of the 27th?
PN3852
MS MacLEAN: That is right, Commissioner?---I recall the response was no different to any other time in that there were something along the lines of there were no trade-offs.
PN3853
Did you want to add something to that?---No.
**** NORMAN PETER DREW RXN MS MacLEAN
PN3854
You were then asked some questions in relation to that meeting, and also in relation to an answer that you gave to my learned friend on Friday about your recollection of the union statement that there were to be no trade-offs -I withdraw that. In relation to the questions that my learned friend asked you about the issue of contractors and the use of contractors, do you recall him asking you some questions about some statements that may have been made by Mr Hayes in relation to that issue?---Yes, I do.
PN3855
Is it - do you have any recollection of Mr Hayes, or any other person, confining the contractor's clause as it so - it was discussed at that time?---No, I don't. And this has been the source of some concern to us, as I said in this place last week. There are two issues; one, that the unions are insisting on all contractors having an EBA, and the other one that seriously worries us is the, what we perceive as the intention to broadly apply the clause. We are not aware of any serious or any other type of clarification being given to us that that wouldn't be the case.
PN3856
Yes, all right. Just finally, Mr Drew, you were asked a number of questions about the trade-offs which the company had proposed in relation to the 36 hour week. Can I just ask you to clarify the position of the company in relation to the 10 day fortnight?---The position is one that we have held all the way through. If you look at the notes from the meeting of 11 November, the notes from the meeting of 25 November; in particular it states something to the effect that our consideration of 36 hours has to be based on a 10 day fortnight which the unions rejected out of hand, from the outset. That is our view. We still require that for our 24/7 business.
PN3857
THE COMMISSIONER: Does that mean, Mr Drew, that employees who currently enjoy a nine day fortnight, would be required to work 10 days? Or do you want a 10 day coverage in some way, in some - - -?---I - it is the former, Commissioner. And remember that this would sit within a suite of other trade-offs we were pursuing; where people could start at 4 am and go home at midday and that type of thing. So, there was a balance to it all.
**** NORMAN PETER DREW RXN MS MacLEAN
PN3858
MS MacLEAN: Yes, thank you. I have nothing further for Mr Drew. Might he be excused?
PN3859
THE COMMISSIONER: Good, thanks, Ms MacLean. Mr Drew, you can step down?---Thank you, Commissioner.
PN3860
PN3861
THE COMMISSIONER: Now, Mr - - -
PN3862
MS MacLEAN: Just remains a couple of things before we close the evidence in relation to SPI; just a few documents that need to be tendered to complete the SPI picture. The first of them is the log of claims, if I can describe it in that way, which is under cover of a letter from - to Mr Ficca from Mr Georgiou on behalf of both his organisation and the other union parties. And if I could tender that, I think copies have been provided to my learned friends. We are all too far away here, Commissioner, we need longer arms.
PN3863
THE COMMISSIONER: We are.
PN3864
MS MacLEAN: If - I think we are up to - - -
PN3865
PN3866
MS MacLEAN: Thank you, Commissioner. The other document is a copy of the present Enterprise Bargaining Agreement. We could hand up a copy of that. And finally, Commissioner, in relation to the folder of documents that was filed in accordance with the Commission's direction and accompanying the application by SPI, perhaps it would be appropriate to mark that folder of documents excluding the outline of submissions, if you wish, Commissioner.
PN3867
THE COMMISSIONER: This is the folder of documents you submitted in response to directions, Ms MacLean?
PN3868
MS MacLEAN: That is right, Commissioner, yes.
PN3869
THE COMMISSIONER: Well, we will mark that - do you - - -
PN3870
MR BORENSTEIN: Could we just have a moment, Commissioner. I am not sure that we know which folder of documents is being referred to. Perhaps, Commissioner, we can just reserve that tender for the moment and we will sort out the documents in question.
PN3871
THE COMMISSIONER: Good, we might sort that out. I was intending to take a break at this stage.
PN3872
MS MacLEAN: All right, that would be appropriate.
PN3873
THE COMMISSIONER: We will break until 11 am?
PN3874
MS MacLEAN: Thank you, Commissioner.
SHORT ADJOURNMENT [10.46am]
RESUMED [11.07am]
PN3875
THE COMMISSIONER: Mr Borenstein.
PN3876
MR BORENSTEIN: Commissioner, my first witness is Mr Georgiou.
PN3877
THE COMMISSIONER: Good, thank you. Now, we have a small problem. I have lost my associate, and I just thought I would get underway regardless, but - - -
PN3878
MS MacLEAN: We need someone to swear him in.
PN3879
THE COMMISSIONER: Here he comes.
PN3880
PN3881
THE COMMISSIONER: Just before we go with Mr Georgiou, Mr Borenstein, the Enterprise Agreement 2002, Ms MacLean, did you want that marked as an exhibit or not?
PN3882
MS MacLEAN: Yes, Commissioner. I think - - -
PN3883
PN3884
MS MacLEAN: Thank you.
PN3885
THE COMMISSIONER: Thank you.
PN3886
MR BORENSTEIN: Mr Georgiou, your full name is Mark Georgiou?---It is.
PN3887
And your address is 163 Eastern Road South Melbourne?---Yes.
PN3888
And you are a senior industrial officer with APESMA?---That is right.
PN3889
And for the purposes of this application, did you prepare a summary of evidence comprising 18 paragraphs?---I did.
PN3890
And have you recently had a chance to re-read that summary?---Yes, I did.
PN3891
And are the contents of the summary, and the opinions that you have expressed in it, true and correct?---They are.
**** MARK GEORGIOU XN MR BORENSTEIN
PN3892
May that be marked as an exhibit please.
PN3893
THE COMMISSIONER: Yes. Yes. Now, is this your first exhibit in the SPI matter, Mr Borenstein?
PN3894
MR BORENSTEIN: It is, yes.
PN3895
PN3896
MR BORENSTEIN: Now, Mr Georgiou, you were in the Commission when Mr Drew was giving his evidence about the negotiations that had been conducted between the company and the single bargaining unit?---Yes, I was.
PN3897
Yes? Could I ask you whether you were in attendance at the meeting of the single bargaining unit with the company on 27 February of 2004?---Yes, I was.
PN3898
And at that meeting - I am sorry, perhaps before I go to that, I wonder if Mr Georgiou might be shown exhibit SPI14, which is the notes of the meeting on 27 February.
PN3899
THE COMMISSIONER: It is a single page.
PN3900
MR BORENSTEIN: Yes, it is a single page.
PN3901
Now, have you seen this document before, Mr Georgiou?---Yes, I have.
**** MARK GEORGIOU XN MR BORENSTEIN
PN3902
Yes. You see the notation in there of the - what is said to be the discussion about the 36 hour claim?---Yes, I do.
PN3903
Is that a complete and accurate record of what happened at the meeting on that subject?---No, it is a - a very jaundiced view of - and a very brief account of what occurred at that meeting.
PN3904
Well, do you recall at the outset of the meeting whether there were comments made, particularly in the direction of Mr Hayes, about statements that had been made the day before in the meeting with Mr Pope?---Yes, there were a lot of comments directed towards Mr Hayes about the Pope meeting.
PN3905
Yes, and can you tell the Commission, from your recollection, what the gist of those comments were?---They were to the effect that someone at the Pope meeting - and I wasn't at that meeting, so I - I don't know who said what - but that the state secretary of the ETU had made some reference to no trade offs.
PN3906
Yes?---For a 36 hour week. And there were some - someone said that Mr Hayes had also used similar words.
PN3907
All right. And can you recall what Mr Hayes' response was to those comments?---That he was - he was at the meeting to negotiate on behalf of his organisation, and that he was authorised - words to this effect, he was - he didn't use these exact words - words to the effect that he was authorised to negotiate an agreement on behalf of the ETU and that is what he was there to do.
**** MARK GEORGIOU XN MR BORENSTEIN
PN3908
All right. And do you recall whether the company raised the question of trade offs at the meeting itself, on the 27th?---The - Mr Amor from the company kept on referring to statements from the ETU at the Pope meeting that there would be no trade offs, and he asked whether the unions were prepared to countenance trade offs. And there was a heated exchange - not heated, Mr Amor isn't that sort of bloke to get too heated - he kept on persisting about whether there would be trade offs, and we then called a caucus where we asked the company to leave and the people present, Mr Hayes was the only other union official, and the representatives and myself had a discussion where we said we would use the term "win-win situation" in lieu of the term "trade off".
PN3909
Yes?---To get around that difficulty.
PN3910
Yes. Had you used that term previously in the discussions?---I always look for win-win situations and I use that term regularly.
PN3911
All right. So having caucused to that effect, what then happened when the meeting resumed?---The three company representatives, Mr Broomfield, Mr Amor and Mr Drew came back and I was asked what the position of the unions was, and I said we were looking for a win-win situation and we would like to know what the company wanted to discuss with regard to the 36 hour week.
PN3912
All right. And what was the response to that?---Mr Amor then said, "We are looking for -" or words to this effect, "No, we are looking for significant trade offs." And I said, I asked him what they were, and he had a piece of paper with writing on it, and I asked - I asked him if that was his list of trade offs, and he said, "Yes." And then I asked him what they were. He read the first one, which was a reduction in wage - wages. And at that point, he was told by Mr Drew not to give out any more, that the union - and Mr Drew used words to the effect that the unions aren't serious about considering them, we are going over old ground, and Mr Amor stopped reading from a piece of paper.
**** MARK GEORGIOU XN MR BORENSTEIN
PN3913
So then what followed from then?---I said, "Well, what are the others? How many?" I asked Mr Amor how many items were on the list, and I said, "I will bet you I know what they are," and I recounted a couple of clauses that they had raised in previous EBAs, like workforce size, introduction of change, contractors, employment agreements and Mr Amor then said, "That is some of them, we have got about another 10." And then Mr Drew told him not to recount any of the proposed trade offs, and Mr Drew then started saying, "Well, has your position changed?" or words to this effect, "From the meeting yesterday?" And Mr Drew focused on the Pope meeting, and whatever transpired there.
PN3914
And what was your reply to him?---That we were prepared to negotiate an enterprise agreement, as we always were - words to this effect - and if they would give us their list, we will have a caucus, we will consider them, and we will give them a response.
PN3915
And what response did you get from the company to that comment?---Mr Drew started - it - it became a little bit personal towards me. I - and I started saying to him, "Play the ball, Norm, not the man." And he kept on having a go at me about whether my organisation's members supported the 36 hour week, and I wasn't representing my members, that sort of stuff, and I just kept saying, "Play the ball, Norm, not the man," and indicating that we wanted to receive their list and have a caucus to consider that list and give them a formal response.
PN3916
And where did it go from there?---Well, he - he said, "I am not going to give you the list so you can put it in your" - he did use the words "bourgeois newsletter" which was a reference to a hearing we had before the Commission as currently constituted where I used the term, "You don't want to believe all you read in the bourgeois press." And Norm - sorry, Mr Drew obviously remembered that, and I just thought it was funny that he referred to our newsletters as being bourgeois. But it - it was not an atypical meeting in terms of the - the way the parties approached it. We have had several meetings of a similar nature in the past. At one meeting out at Malvern, the company actually walked out after a much much more heated exchange than occurred at that meeting in February.
**** MARK GEORGIOU XN MR BORENSTEIN
PN3917
And after the reference to your newsletters, what happened at this meeting?---Mr Drew took over from Mr Amor, I think they were playing good cop bad cop, and Mr Drew started - in a reasonably agitated manner saying, "You are not interested in talking about the 36 and the trade offs," and I kept saying, "Well, give us the list and we will consider them", and it got to the point where Mr Drew - we asked for a - sorry, the company asked for a break. Mr Amor, from the company, asked for a break because Mr Drew was fairly agitated, and all the way out of the room he was, in a reasonably raised voice, but nothing exception to what goes on, was directing some of his vitriol towards me, and I just kept all the way out of the room saying to him, "Play the ball, Norm, not the man." And Mr Hayes was keeping scorecard of how many times I said it.
PN3918
And how long did the company break for?---At that point it was not a - a long break. It might have been five or 10 minutes. It wasn't a long break and then they - they came back in.
PN3919
And what happened when they came back?---They came back in and the - Mr Amor started talking about the unions not being serious about negotiating around the issue of the 36, and the trade offs, and I kept on reiterating give us the list and we will consider them.
PN3920
[11.22am]
PN3921
You heard Mr Drew give evidence a little while ago about this meeting, and indicating that you already knew what the trade-offs were that the company wanted. Do you have a response to that?---I knew that the company had four items, three or four, around the early starts, the weekend work without penalty, and the radial allowance, and I had had a discussion with Mr Broomfield a couple of days earlier to that meeting, because I had put out a newsletter where I put in the newsletter that I thought we were fairly close to reaching agreement, and Mr Broomfield commented on that, and said, do you really think we are close, and I said, well, take out the 36 issue, I reckon all the rest is solvable, and we then need to get down to the money, and I said, you will ask
**** MARK GEORGIOU XN MR BORENSTEIN
as you do every time, for the introduction of change clause, the work force size clause, the employee entitlements, you will make a bigger issue. He didn't disagree because they are the issues that just come up every EBA you ever negotiate in the power industry, but he did - I don't want to put - say what he said, but he did indicate that the 36 was the stumbling block, and he didn't go beyond disagreeing with those items that I raised, just the key issues.
PN3922
The evidence that I - you heard Mr Drew give evidence earlier, where he was asked to explain why he wouldn't give you the trade-offs at the meeting on 27 February. Do you recall that?---Yes.
PN3923
And do recall him saying, well, why did we need to, they already knew all of them? Was that the position?---No. As I said at the meeting, I could only think of four or so items. In the discussion I had with Mr Broomfield previously I could only think of those four or so items, because they are just a recurring theme, and I expected them to open up with, you will have to take a pay cut, because they had put to us that the 36 was worth a percentage and they weren't prepared to match that.
PN3924
In re-examination Mr Drew was asked what the last two issues were, or what the last issue was that was settled on the last occasion, and he nominated the two last issues as being the work force size issue and quantum. Did you hear him say that?---Yes, I did.
PN3925
Do you agree with that?---No.
PN3926
What do you say were the last issues?---Quantum always is definitely the last.
PN3927
Why is that?---Because once you have settled all the other items, you know what the costs are, what you have gained out of the agreement, what the employer has gained, and you then balance it up, and in this industry in all the years I have looked after it we have never had a major dispute about quantum. It is always the last item. The employers say, we will give you 3 per cent, is usually their opening, and we say we want seven, and we get down to between
**** MARK GEORGIOU XN MR BORENSTEIN
four and five. I have not done an agreement where that hasn't been the case. The issue of the work force size was one of the final issues, but the key issue last time was the introduction of a trial period for early starts for the summer months where the company wanted more than a trial, wanted the same issue of early starts without penalty 4 am for a key period of their maintenance regime in summer and that was probably outside of the quantum, the last issue. With regard to work force size, last time it was put to us that the company didn't want the words "no compulsory redundancies" in the EBA because the Singapore Government believed that with those words in it the company was less sellable on the market and they would have difficulty using the words "no compulsory redundancies" in the EBA, not because they didn't believe the current words meant that, but they had been given instructions from their owners that those words would devalue the company.
PN3928
Now, speaking of the Singapore company, one of the issues that Mr Drew made mention of as an unresolved issue was the contract of employment?---Employment agreements.
PN3929
Employment agreements?---Yes.
PN3930
And his evidence was to the effect that the major stumbling block was your opposition to any document that you might agree with the company here being submitted to the Singapore board?---The - Mr Broomfield and I have dealt with this issue both the last EBA and this one, and it came as a shock after about four or five meetings when we got down to negotiating this issue and Mr Broomfield stated at the meeting that the management of SPI didn't have authority to negotiate employment agreements or contracts because they had to be approved by Singapore Power in Singapore and that they didn't want any variations to their standard contract.
PN3931
Okay. Now, Mr Drew has identified in his witness statement a number of issues which he says will be unable to be resolved. I will just open it up. Now, this is paragraph 49 of the witness statement, Commissioner. He says:
PN3932
In my view the unions will not reach agreement with SPI Powernet unless SPI Powernet agrees to 36-hour week. SPI Powernet will not agree to a 36-hour week.
**** MARK GEORGIOU XN MR BORENSTEIN
PN3933
And he went on his cross-examination to say that that was put on the basis that there were no trade-offs for the 36-hour week. And then he says:
PN3934
In addition there will not be agreement unless the unions agree to provisions in respect of flexible hours, introduction of change, work force size, use of contractors and other matters discussed.
PN3935
Now, what is your view based on your experience in the past in negotiating agreements with this company and other companies in this industry as to the prospect of reaching a settlement, given the state of the negotiations at present?---I think it is extremely good. We have had very, very tough issues to deal with in this industry with corporatisation, privatisation, continuing change of ownership, massive downsizing, massive outsourcing. This company in particular we had a massive dispute some five years ago over downsizing, and it was messy, I can tell you. In industrial terms it was a very nasty dispute. We resolved it. Everyone got on with life. We reached agreement. We have reached agreement with them on five occasions. Mr Broomfield has negotiated all of the EBAs for the company. I think we enjoy a reasonably good relationship, and that we understand what is a bargaining position and what will be the ultimate outcome.
PN3936
Can I go to some of the specific items that Mr Drew mentions?---Yes.
PN3937
Work force size. Now - - -?---Always been an issue. We started off when this company was in government hands that we couldn't have any reference to work force size because of AEU, the case re AEU, and the company recognised that. Even when they had the power to have compulsory redundancies when they were in state hands, they never did. So, we have always reached agreement on it.
PN3938
Okay. And on the last occasion, in the last round of negotiations, we heard from Mr Drew that the company raised the same issue with the unions and ultimately agreed on the clause that we see in the agreement?---Yes.
**** MARK GEORGIOU XN MR BORENSTEIN
PN3939
Now, over the life of the existing agreement, to your knowledge has there been any problem in the working of the clause in this company?---No.
PN3940
Now, in relation to the introduction of change clause the evidence that Mr Drew gave, the effect of the evidence Mr Drew gave, I think on the last occasion, was that the company's position was they wanted to be able to access the Commission for arbitration if they couldn't reach agreement with the unions on proposals for introduction of change. Is that in accord with your understanding of the company's position?---Yes.
PN3941
And what is your understanding of the unions' position in response to that?---The unions tried to strengthen the disputes resolution clause to make it absolutely clear that this Commission has power to arbitrate a dispute between the parties on any matter.
PN3942
Including introduction of change?---Including introduction of change.
PN3943
All right. Given that situation, do you a view as to the likelihood of resolution of this particular issue between the parties?---I wouldn't even rate it as in dispute between the parties.
PN3944
Now, the next issue I would like to raise with you is the issue of employee entitlements?---Yes.
PN3945
Okay. Now, the initial claim of the unions was for the establishment of a trust fund. Was that the same as the claim that the unions made when negotiating the existing agreement?---Yes, it was.
PN3946
And in relation to the existing agreement, how was that claim resolved?---We received a letter from the company which we have always referred to as a comfort letter, about employee entitlements. The only difference this time was that we asked for the company's credit rating because we had received advice from the ACTU that companies with a triple B plus rating would have enough to cover employee entitlements, so we asked the company for its rating under either Standard and Poors or Mooneys, is it, or Moodys?
**** MARK GEORGIOU XN MR BORENSTEIN
PN3947
Moodys?---Moodys. I am not a financial expert. And once they gave us the advice that they were better than triple B plus, we sent the comfort letter with a reference to the auditors providing the unions with statements was - that item as far as I am concerned is agreed between the parties.
PN3948
Well, the discussion about the provision of the credit rating and the letter that you have just mentioned, with whom did you have that discussion?---With the SBU and with Mr Broomfield, and also - yes, just those - - -
PN3949
When you say the SBU, do you mean the unions?---No, no. When we are negotiating that has been - - -
PN3950
You mean at the negotiating sessions?---Yes.
PN3951
All right. In relation to the item of the use of contractors, is that an item that has particular relevance for the CEPU rather than your organisation?---No, no. It is an issue that - and it actually has some relevance to my organisation because there is some engagement of contractors in the engineering field and it has been subject of correspondence between Mr Broomfield and myself over the engagement of contractors, and - so, no, it is not just a CEPU issue.
PN3952
Were you in court when I asked Mr Drew whether he had been told that the unions did not require all non-core contractors to be covered by this contractors' clause?---Yes, I was.
PN3953
What is your understanding of the position of the unions as to whether non-core contractors are to be covered by the clause?---Well, this is the third EBA where this issue has arisen. Mr Broomfield always says, we don't want the temporary receptionist or others that we contract in to have an EBA or to reach agreement, and they raised it during the last EBA negotiations, they raised that they have cleaners, for example, that is a good one that they always throw in, and they don't want the cleaners to have to be agreed. The three unions, the
**** MARK GEORGIOU XN MR BORENSTEIN
AWU is also there, but they don't come to the negotiations, but the three unions that are at the negotiations have repeatedly said that they were not interested in the cleaners, the temporary receptionists, the agency people that are brought in, that it was really to do with contractors who do core business for the organisation, and that has always been negotiated and agreed.
[11.39am]
PN3954
All right. And in relation to the negotiations on this occasion, is that the position of the unions?---Yes. And that has been put to them.
PN3955
All right. Now, then if we then return to the issue of the 36 hour week, can you tell the Commission what the position is of the unions in the SBU, in terms of their readiness to negotiate on the 36 hour week and the trade-offs?---The unions have constantly put to the company that the issue of hours of work is broader than 36 claim. That it is linked to the issue of work and family life balance, additional annual leave, those sorts of issues, and there was some discussion, for example, with regard to the ASU and ourselves, that the issue of Easter Tuesday, Show Day - a day in lieu of Show Day, Anzac Day falling on a weekend, and the three days between Christmas and New Year, would be - we would like to discuss those sorts of things. The position of the four unions, three unions, is that once the company tells us what it wants us to look at, we will take that away, look at it, and give them a response. We are prepared to continue to negotiate around the issue of hours.
PN3956
Can you tell the Commission whether the unions are open to negotiating on trade-offs, or however else you wish to describe them?---Yes.
PN3957
THE COMMISSIONER: How does that reconcile with your repeated statements, Mr Georgiou, that we have heard of in the negotiations, apparently said many times, no trade-offs? Are you saying that this is a development that has now occurred late in the negotiating process?---My evidence has been that we have never used, and can I say to you, Commissioner, that it was a joke in the caucus, that we never use the words, trade-offs. That I kept saying to them, we should talk about win-win situations. that way - - -
**** MARK GEORGIOU XN MR BORENSTEIN
PN3958
Was this understood by the other side, as your code for trade-offs?---I think so, I think they have been around long enough to know that.
PN3959
It didn't sound like it, form what Mr Drew told us earlier?---Well, I think Mr Drew was around last time when similar issues were raised. I don't think that there was anything new.
PN3960
But on the other hand, people were repeatedly saying, in various forums, no trade-offs?---It was put to the negotiators from this company that Mr Mighell from the ETU - because they did raise that he had used those terms - and Mr Hayes, and myself, put to them that we were there representing the unions with members at the company, and we were prepared to negotiate, as we always are, on issues that have been raised by either party, to reach agreement. It has not been an issue of us refusing to countenance trade-offs. It was the company giving us their wish list, as they did with those four items I mentioned. For example, radial allowance, which is in the documentation. I mean, if I go to another EBA and they raise the radial allowance, I am almost prepared to give it to them, so they don't raise it again. But it is raised every negotiations. Don't quote me on that, I am not really going to do it.
PN3961
MS MacLEAN: Oh, we will?---But I am just saying, that it is that sort of stuff, the same stuff just keeps coming up over and over again.
PN3962
THE COMMISSIONER: So you are saying that you were always prepared to listen to trade-offs?---A good example, on the radial allowance, I put to the company representatives that there was precedents from the SECV on how a company can negotiate an allowance and its removal, and we had quite a lengthy debate on what the companies were prepared to accept in lieu of the radial allowance. I think that has - that is another code word for, we were prepared to consider trade-offs.
PN3963
MR BORENSTEIN: Just on one of the points that the Commission has just raised with you, Mr Georgiou, I think this answer is probably encompassed in a more general answer that you gave earlier, but if you still have the note of the meeting number 14 on 27 February in front of you, do you see that in the third paragraph it is recorded that:
**** MARK GEORGIOU XN MR BORENSTEIN
PN3964
The unions advised their position was 36 hours and a pay rise. The unions also advised there would not be any trade-offs.
PN3965
Do you see that?---Yes.
PN3966
Now can you tell the Commission whether you regard that as an accurate statement of the unions' position on that occasion or not?---No, I don't.
PN3967
THE COMMISSIONER: What is an accurate statement of your position on that occasion, Mr Georgiou?---That if they give us a list of issues that they want us to consider in exchange for variation in hours, we will caucus, consider them one by one, and give them a response to each issue.
PN3968
Does that mean that you would have been prepared to negotiate on each issue?---Yes. And I think the issue of the early starts is a sign of that.
PN3969
MR BORENSTEIN: What do you mean by that?---The four o'clock starts for the five days.
PN3970
Well, why is that a sign of that?---I am not going to - my recollection is that the issue of the flexible starts was - as an outworking of the trial period last time, and the company wanted to formalise the outworkings of the trial by having five early starts during a crucial period of their maintenance regime, and it was really the issue of what constituted a working day that was dispute between the parties, not the issue of five days 4.00 am starts. I don't think that was ever in dispute. Just as with the weekend work, the 10 days weekend work, in the salaried areas under the award, people have the - don't get a full option of overtime and there are restrictions on overtime for different levels of employees. But they do get the option of time off in lieu. So we took that as the company simply wanting to extend an award clause that applies to salaried employees. It is not fair just to say, salaried, but office based employees and extend that to other classes of employees.
**** MARK GEORGIOU XN MR BORENSTEIN
PN3971
And are you saying that because those are things that are in operation in parts of the business, that the unions would be open to talk about their extension into other parts?---Yes. As last time the company claimed a 10 day fortnight for salaried employees under the flex time provisions, that was one of their claims. We negotiated through that.
PN3972
And what outcome did you reach?---The status quo.
PN3973
Thank you, Commissioner.
PN3974
PN3975
MS MacLEAN: Mr Georgiou, would it be fair to say, in relation to the list of items that you describe as the same stuff that keeps coming up over and over again, that as you have outlined in the last answer to Mr Borenstein, the status quo has remained in relation to the same stuff? There hasn't been a backward step taken by the unions in relation to those issues, has there?---Not so. The issue of - we wanted last time the term, no compulsory redundancies. If you check the documents from the last set of negotiations, the unions are quite adamant that they are comforted more by those words, but we reached a compromise, and agreed to the words, voluntary departure or natural attrition, which was a carry-over from the one before. So we - - -
PN3976
What I am putting to you, Mr Georgiou, is that on each occasion that the company has put a claim to the unions, take as an example, if you will, the claim for compulsory redundancies to be positively included in the enterprise bargaining agreement, the unions have not conceded that claim, have they?---They had compulsory redundancies from the start, so I don't know why you say that. Under the - when it was in State hands, and it is only - this was the last company privatised, so it has only been privatised for five or so years, maybe six, they always had the right to compulsory redundancies.
**** MARK GEORGIOU XXN MS MACLEAN
PN3977
And in relation to workforce size, you know, don't you, that there is a claim by the union - by the employer, on this occasion, to give them more flexibility in relation to change in workforce size - - - ?---Yes.
PN3978
- - - than they say they previously enjoyed?---Yes.
PN3979
You know that, don't you?---No, I don't know that. I know from the discussions that I have with Mr Broomfield, that he put certain things up, hoping to trade them off for later on. I mean, it is standard tactic. I don't think he is being underhand. He has done it the last - - -
PN3980
Well, that is a relief, yes?---He has done it the last three EBAs, I don't think - he has put the same words up last time, and I gave a reason for why they put it up last time.
PN3981
That is what I am putting to you, Mr Georgiou, and on each occasion the unions have not conceded in relation to those issues, have they?---Yes, we have. We wanted the words, no compulsory redundancies. We reached a compromise. That is what EBA negotiations are.
PN3982
THE COMMISSIONER: I must say I am a little confused here. I have taken everything we have spoken of so far in relation to SPI as meaning, at the present time there is a situation in the company which is brought about by an agreement which has been reached at some point - maybe it was SECV days - that there would be no compulsory redundancies in SPI?---No, that is not the case, Commissioner.
PN3983
Not the case. So if SPI says, look, we are 10 per cent over-staffed, and we have got to reduce our staff numbers by 10 per cent, they can compulsorily make employees redundant? Is that the case?---Under - when it was in State hands, the answer is - - -
**** MARK GEORGIOU XXN MS MACLEAN
PN3984
MS MacLEAN: No, now, Mr Georgiou.
PN3985
THE COMMISSIONER: No, I am talking about now?---Now?
PN3986
My question, which I thought was very clear - - -?---No, the answer, now.
PN3987
- - - was in relation to SPI as it is now?---The answer - - -
PN3988
Like, you have said in evidence, on oath, that SPI, as I have heard you, that SPI has the capacity right now to make employees compulsorily redundant?---No, I didn't say that.
PN3989
You didn't mean to say that?---Well, I hope I didn't say that. I said, when it was in State hands, they had that right.
PN3990
But we are talking here about a situation - - -?---And when they were privatised - - -
PN3991
Mr Georgiou, just stop, please. We are talking here about a situation where the company has, as part of its claims in the negotiating process, an effort to enable it to make employees compulsorily redundant?---Yes.
PN3992
And that is what we are discussing. And I have taken Ms MacLean's questions to you to be, well, you have shown no flexibility on this, have you? And that is basically her question. And your answer was, you have shown a lot of flexibility. And in fact SPI can make people compulsorily redundant. Now, that is why I am confused?---Well, we - - -
PN3993
Now, we are here giving evidence on oath about this matter?---Yes.
**** MARK GEORGIOU XXN MS MACLEAN
PN3994
I have got to determine whether or not there was a reasonable prospect of these negotiations concluding successfully. Now, from what you have told us so far, by the sound of things, we shouldn't even be here, because you are totally flexible on workplace size, it should be agreed. Yes, you agree that the company can access the IRC on the introduction of change. Employee entitlements is really just a sideshow anyhow. You know, I wonder why the company and yourselves had that 14 meetings to reach this point?---We had more last time, Commissioner, and we reached agreement. We had a lot more meetings.
PN3995
And on 36 and three quarter hour weeks, you are totally flexible on trade-offs, this is what you are saying?---The answer is yes.
PN3996
Now, this is almost in total contradiction to what Mr Drew has said in his sworn evidence?---That is correct. On the issues, I think in my witness statement - - -
PN3997
So what I am asking you to do is to be very precise in your answers?---Commissioner, the unions' claim for the last two EBAs is to include the words, no compulsory redundancies. The companies claim in the last two rounds of negotiations is that they want the right to introduce compulsory redundancies.
PN3998
Which they haven't got right now?---No, they haven't.
PN3999
Yes, good?---The terms in the current EBA, and I haven't got it in front of me, but I know them, is that any downsizing will be by natural attrition or voluntary departure. Now - - -
PN4000
Yes, which is a standard position for a company that hasn't - doesn't have the right to make employees compulsorily redundant?---Well, that is an interpretation you put on it. There are only two companies in this part of the industry that don't have the words, no compulsory redundancies. Which is why we seek those words so that there is no confusion. But - - -
**** MARK GEORGIOU XXN MS MACLEAN
PN4001
What have you got right now? What prevents the company from making employees compulsorily redundant?---By just terminating their employment, and then having us - - -
PN4002
Well, by saying, we have too many employees in this work location, we have to reduce our staff numbers by XX, we have asked for volunteers, we have attempted to do it by natural attrition. We still have too many employees. What prevents them form saying, well here are five employees who have to go, and we will pay them the redundancy payments and all their other entitlements? What prevents them doing that?---The current clause, I believe.
PN4003
The current clause which is an agreement between the unions and the company?---Mm.
PN4004
Yes?---And that is why - - -
PN4005
Now, that is what I am looking for you to give us evidence on, Mr Georgiou?---Well, I thought I had, and if I didn't make it clear, Commissioner - - -
PN4006
Well, it was a bit of tortuous path to get there I must say?---Well, I don't know, I can't answer that.
PN4007
MS MacLEAN: Perhaps if I could ask you this question again, Mr Georgiou, now that you have had an opportunity to give some consideration to your answer, the point that I put to you is this. The company, you know, is seeking to have removed from the enterprise agreement, the requirement that any departure from natural attrition or voluntary departure, to be agreed by the union, that that requirement shall be removed from the agreement, and that would give them, as you know, the right to, in appropriate circumstances, forcibly retrench employees?---Yes.
**** MARK GEORGIOU XXN MS MACLEAN
PN4008
Yes. And the union - the unions - have not conceded that claim?---That is right.
PN4009
No. And the unions have not conceded that claim on at least one other occasion, which was the negotiation of the previous EBA?---That is right.
PN4010
Yes. It is quite simple when we are not talking in code, Mr Georgiou.
PN4011
MR BORENSTEIN: That is an unnecessary comment?---Well, just to respond to that - - -
PN4012
MS MacLEAN: Well, perhaps if I ask you a question, you could respond to that. Now, in relation to the 36 hour week, Mr Georgiou, you understand, don't you, that that claim in money terms represents a considerable cost to the company, SPI PowerNet?---They have put a figure on it, yes.
PN4013
You don't imagine that it would involve additional cost as is put at the moment?---Some of it will. There are a number of scenarios proposed by the unions. For example Easter Tuesday, a day in lieu of Show Day, Anzac Day when it falls on a weekend; were all part of the award entitlements of employees - - -
PN4014
Ultimately, Mr Georgiou - - - ?--- - - - that were removed - - -
PN4015
MR BORENSTEIN: Well, let him finish the answer?
**** MARK GEORGIOU XXN MS MACLEAN
PN4016
MS MacLEAN: If I could get a response?---That were removed by the State Government. And we say that when - that if they were to be given back to the employees, that I don't see that there is a financial disadvantage given that they were given a free kick in front of goal four or five - no, more than that, about 10 years ago. The issue of the three days between Christmas and New Year used to always be given to salaried employees and it was just taken away. So, we are saying that there are - and in the negotiations there will be give and take but there is a cost. I would not say that there is not a cost to introducing flexible hours.
PN4017
And ultimately, Mr Georgiou, the matters that you have just been outlining, relate to employees doing less work. In the course of their overall working year - - -?---Yes, yes.
PN4018
- - - they will be at work less often?---That is correct.
PN4019
Yes, and you would acknowledge, wouldn't you, that someone will have to take up the slack and perform work, either on over-time rates or other employees perhaps, which will represent a cost to the company?---Or a reorganisation of the way work is performed. There are not - there is not one answer to your question. For example, my members work an average of between 45 and 50 hours a week and they don't claim over-time. So, I actually was pushed by my members to go for a 40 hour week so they could get an additional two and half hours pay, because they don't get that currently. In this industry there are swings and roundabouts; there is give and take and in the negotiations for the flexible hours we would have got down to this detail.
PN4020
And, perhaps if we could just pick up on that point, there have been a number of occasions when the company has put to you - I take it that, as in the other company negotiations that we have been talking about earlier in these proceedings, you were the spokesperson for the unions in relation to the negotiations with SPI PowerNet?---I did a lot of the talking, yes.
**** MARK GEORGIOU XXN MS MACLEAN
PN4021
Yes?---I wasn't delegated spokesperson.
PN4022
There haven't been separate negotiations in respect of your members and their particular interests with this company?---Only on a couple of issues.
PN4023
Yes, all right. Now, you know, don't you, and perhaps if you could have a look at SPI3, the weeks it shows - I think we have got a spare which we might be able to give you. You will remember, Mr Georgiou, that that is an e-mail to you and to others setting out the company's understanding of some flexibilities in relation to trade-offs that were being discussed, and their understanding of what those trade-offs were. You see that?---Yes, I do.
PN4024
Yes, and you are not in any doubt as to what was being proposed there? In the matrix, if you go over to that attached to your document, I am sure you have seen it before, Mr Georgiou, that matrix which is SPI4 sets out the company's proposal in relation to the introduction of the 36 hour week. See that?---Yes, I do.
PN4025
And this was the subject of some discussion between you and others and the company on 30 January 2004. And the company, you would agree, wouldn't you, has here set out in part the trade-offs that it was proposing in relation to the 36 hour week. You see that?---In part that is said, yes.
PN4026
Yes. And those trade-offs, I put to you, were rejected out of hand by the unions, were they not?---No.
PN4027
No? Which ones of those were accepted, Mr Georgiou?---I didn't say they were accepted.
PN4028
Well, you can either - you said they weren't rejected out of hand, which ones were accepted?---I didn't - I don't think it is one or the other. I think, I think - - -
**** MARK GEORGIOU XXN MS MACLEAN
PN4029
Well, perhaps you could tell me which ones, or none?---Well, if we had kept negotiating, for example on the 4 am start, with regard to what was to be regarded as a day; in other words, how many hours constitute a day and whether the hours between 4 and 6 were to be regarded as normal work time, I think we might have fleshed that out a bit better.
PN4030
Mr Georgiou, are you seriously suggesting that any of these flexibilities remained as items for discussion after they were rejected by the unions?---Yes.
PN4031
You are? And could you perhaps point us to the meeting between the parties where those flexibilities were the subject of further discussion?---We had a meeting at Thomastown and then we had one further meeting, and I am not - this was put at the Thomastown meeting - - -
PN4032
This is 30 January we are talking about here?---Yes, I know that. And there was another meeting where the issue of the start and finish times, and the fact that the company had moved from five days per annum to an unlimited number of days was subject of some discussion.
PN4033
Mr Georgiou, perhaps if I could show you SPI6 which is the minutes of the SBU meeting of 9 February?---Sorry, they are not minutes. There are no minutes of meetings.
PN4034
You get these notes, if I can use a neutral term, they are distributed to the unions for their comment? Mr Drew told us that in evidence?---No, they are not distributed to the unions for comment.
PN4035
THE COMMISSIONER: I don't think we need to argue about whether they are notes or minutes. They are notes and should be regarded as such.
PN4036
MS MacLEAN: And you receive them as they are prepared and sent out?---I do, I do.
**** MARK GEORGIOU XXN MS MACLEAN
PN4037
And if there was a matter of major disagreement as to the content of the minutes, you would no doubt raise that with Mr Drew or Mr Broomfield, wouldn't you?---No, no, at the very first meeting, the issue of minutes and notes and their status - see the first meeting never got around to EBA negotiations, we argued about whether - - -
PN4038
THE COMMISSIONER: Mr Georgiou - - -?---No the issue of the - - -
PN4039
- - - just focus on the minutes and the notes?---Whether they are notes - - -
PN4040
You are going to clarify the status of them?---Okay.
PN4041
MS MacLEAN: Perhaps if I could direct your attention to the second page, Mr Georgiou, you will see that on the first page there is the flexible hours proposal which is under discussion, and there are a number of numbered points there setting out, essentially, the matters that we have just been looking at from 30 January meeting?---Yes.
PN4042
There is then this comment made:
PN4043
The unions advise these proposals were unacceptable and not agreed. SPI PowerNet then advised it was taking the flexible hours matter off the table and was withdrawing any previous offers made in relation to flexible hours.
PN4044
You see that?---Yes.
PN4045
Do you have a - is that your recollection of what happened at that meeting?---Yes.
**** MARK GEORGIOU XXN MS MACLEAN
PN4046
Yes. So, as of 9 February, the proposals in relation to flexibilities put forward by the company were "unacceptable and not agreed", and their proposal in relation to flexible hours was "off the table"?---No. We didn't take the issue off the table - - -
PN4047
No, no, no, the company proposal, yes?---Sorry, yes, the company took it off the table.
PN4048
Now, you then had cause to communicate with your members by a newsletter dated 24 February. If I could show you a copy of this document, Mr Georgiou. I think we have talked about this in another context, Mr Georgiou, you prepared this document?---I did.
PN4049
And it is a - - -
PN4050
THE COMMISSIONER: Do you have a reference on that at all, Ms MacLean?
PN4051
MS MacLEAN: No, I will just get Mr Georgiou to identify it and then I will tender it, Commissioner. Mr Georgiou, this is a newsletter prepared by you and dated 24 February 2004?---It is, yes.
PN4052
Circulated to your members in SPI PowerNet and other power companies?---That is right.
PN4053
Yes, I will tender that, Commissioner.
PN4054
THE COMMISSIONER: I need a copy, Ms MacLean.
**** MARK GEORGIOU XXN MS MACLEAN
PN4055
MS MacLEAN: My apologies, Commissioner.
PN4056
PN4057
MS MacLEAN: Thank you, Commissioner.
PN4058
Now, Mr Georgiou, you will see there that SPI PowerNet is the first company mentioned, and you make this observation in relation to their negotiations:
PN4059
Negotiations are proceeding smoothly with agreement imminent save for a couple of curly issues; increased leisure, hours, restoration of lost holidays -
PN4060
etcetera. What I would like to know, Mr Georgiou, is how you could make the observation that agreement was imminent when, as we have just been discussing, negotiations had reached a standstill on the question of the 36 hour week?---Because I have been in a standstill situation enough times to know that there is no such thing.
PN4061
And upon - based on that experience, you thought the company was kidding, did you, in relation to the 36 hour week?---No, no, I didn't think they were kidding. I thought that once we got rid of all the other stuff and focused on the question of hours - because they have taken things off the table and put them back on, on other occasions - - -
PN4062
Do you mean on other occasions in previous enterprise bargaining negotiations or in - during these things?---No, even in these negotiations.
**** MARK GEORGIOU XXN MS MACLEAN
PN4063
Yes, all right?---And so I just assume that they were taking a stance and we would get back down to it as we have in the past.
PN4064
But you haven't, have you, on this occasion? The company, I will put it to you, has remained resolute that it requires significant trade-offs for the introduction of the 36 hour week?---No.
PN4065
No?---No, I don't think that is the case at all.
PN4066
Right, and the unions, I will also put it to you, have remained resolute that no trade-offs, that is financial savings to the company, so we are not confused about win-win situations and matters of that kind; you know, don't you, that the companies require significant financial concessions from the unions before they will agree to a 36 hour week?---I don't know if they are all financial. Mr Broomfield, on several occasions - - -
PN4067
But you know that they require at least some - - -
PN4068
MR BORENSTEIN: I wonder if the witness might be allowed to answer the question and finish his answer?
PN4069
THE COMMISSIONER: Yes, thank you. Ms MacLean, if you would let Mr Georgiou answer.
PN4070
MS MacLEAN: I beg your pardon, Commissioner?---Mr Broomfield, on several occasions, has put to me that they would want trade-offs. Not all of them were in the form of financial trade-offs, in other words simply to do with quantum. And very early on Mr Broomfield, Mr Ficca and I had a meeting in the coffee shop downstairs from their offices where the issue of how to deal with the 36 hours was the only subject of the discussions. And I put to Mr Broomfield and Mr Ficca that they had to think outside of the square and not see this as an overtime claim.
**** MARK GEORGIOU XXN MS MACLEAN
PN4071
And Mr Georgiou, from the union's point of view, all that has been suggested or put on the table, have been implementation proposals such as you were outlining to us a little earlier; perhaps restoring public holidays, days off between Christmas and New Year, phasing in over periods of time; matters of that kind have been put forward by the union, isn't that right?---No, yes, they would be - yes, they have, amongst other things.
PN4072
Amongst what other things?---Yes, for example, the being ready to start work at a certain time, and I am not the best person to tell you when the field employees start work and when they are supposed to start work, but there was a proposal put by one of the ETU representatives to do with being ready to start work at a set time, as distinct from the flexibility that currently exists equating to 20 minutes a day. That was put by the unions and was taken on board by the company, whether it had legs or not, only the negotiations as they evolved would have determined. There was also, for example, a discussion on flexibility for the taking of RDOs; that needed to be fleshed out. The company also proposed as a trade-off for the 36-hour week that they would remove shift penalties for people in the control centre. Now, whether they were serious about pursuing that or not, I don't know, because I never got a list of their - they had that in their earlier trade-offs that they wanted, but it fell off the table and I didn't know if it was back on again.
[12.09pm]
PN4073
How did it come to fall off the table, Mr Georgiou? Was it rejected by the unions?---It was rejected by the unions, yes.
PN4074
Thank you. All right. Now, just a couple of - - -?---I don't think that is the reason it fell off the table, though.
PN4075
You were telling us a little earlier, Mr Georgiou, about the last EBA negotiations, and you described from your experience that there had never been a dispute about quantum in this industry. I think you were telling us that it was usually the last thing to fall into place, and in your experience there hadn't been a major dispute about quantum of any pay increase. Is that right?---No. That is right.
**** MARK GEORGIOU XXN MS MACLEAN
PN4076
Yes. Would I be right in saying, Mr Georgiou, that there hasn't previously been a claim of the potential cost magnitude in this industry in your experience, that - as the 36-hour week?---The superannuation claim that the unions have put on the company would make the 36-hour week be a lay down misere. Our superannuation claim for the last two would cost five times more than a 36-hour week.
PN4077
And has that been seriously pursued in the same manner?---It has been pursued, and the issue of weekend penalties and shift premiums and availability being included in the superable salary has been taken on board by the company, and we should be able to reach some agreement. Our superannuation claim which other companies have conceded make - if you have a look at it and you analyse it and the company has given us costs from Mercers, who are, I think, actuaries for the superannuation fund, make the claim for a 36-hour week look like a claim for free water.
PN4078
And has that been agreed by the company?---What has been agreed by the company?
PN4079
The superannuation claim that makes the 36-hour week look like free water?---In part, some of it has been agreed.
PN4080
Has the 36-hour week claim been agreed?---It is being negotiated. We haven't concluded that one.
PN4081
All right. Now, just finally, Mr Georgiou, you gave some evidence about the meeting on the 27th?---I did.
PN4082
Of February. From your recollection, Mr Georgiou, how long did that meeting last?---In total with the breaks, an hour and a half, maybe an hour.
**** MARK GEORGIOU XXN MS MACLEAN
PN4083
And there were more than one break during the course of that?---Yes, yes, there were.
PN4084
Now, just in relation to what was said about Mr Hayes's comments at the Pope meeting, I understand you weren't at the meeting with Mr Pope; that is right, isn't it?---No, I wasn't.
PN4085
Nor were you at the meeting with Mr Merriman?---No, I wasn't.
PN4086
All right. Now, at the start of the meeting I think you said something along the lines of there were comments directed towards Mr Hayes based on statements he had made at the Pope meeting. Do you recollect that?---He and Mr Mighell, yes.
PN4087
And it was said that Mr Hayes and/or Mr Mighell had said words to the effect that the 36-hour week would be given with no trade-offs. Do you remember that? Mr Hayes didn't deny saying that, did he?---He said some - that was the unions' position, at the Pope meeting, yes.
PN4088
What I am putting to you, Mr Georgiou - - -?---Yes, is the answer, yes.
PN4089
- - - is that he didn't deny that he said that on 27 February?---Yes. Yes, that is right.
PN4090
And you also gave some evidence of an exchange, I think between yourself and Mr Drew, but you will correct me if I am wrong, that Mr Drew was asking you whether there had been a change in the union's position as it had been outlined by Mr Hayes that there would be no trade-offs between the Pope meeting and the meeting the next day. Do you recollect the - - -?---It was Mr Amor that was - - -
**** MARK GEORGIOU XXN MS MACLEAN
PN4091
Mr Amor?---Yes, it was Mr Amor.
PN4092
So Mr Amor was asking you whether your position had changed?---That is right.
PN4093
And the answer to that was, I put it to you, that there was no change. The trade-offs were not going to be conceded by the unions?---Absolutely wrong.
PN4094
What was the response to that?---That we were there to negotiate an agreement that what happened at the Pope meeting was not the position of the negotiators, that the three unions that were present were prepared to consider any issues raised by management and that is when I asked them if they had a list.
PN4095
And you knew, didn't you, at least some of the items that were on the list of trade-offs required by the company. They had been identified to you before?---No, I - sorry, yes, is the answer. When Mr Broomfield and I had a discussion on the phone I said, I will bet you any money you like you will raise work force size, introduction of change, employee entitlements, use of contractors, employment agreements, you do it every time. So, I did know that those issues would be subject of re-negotiation.
PN4096
None of which would be conceded by the unions, would they, at that point?---At which point?
PN4097
At the point that you were rattling off the list of the things that you thought might be required - - -?---Well, in the discussion - - -
PN4098
- - - by the company, they hadn't been conceded, had they?---In the discussion, yes, in the discussion with Mr Broomfield I said to him, you know that we always reach agreement with this, and you always use that as ambit. You will do it again, but we will reach agreement.
**** MARK GEORGIOU XXN MS MACLEAN
PN4099
And when the company had put some trade-offs on the table back on 30 January as we have just discussed, they were rejected by the unions, weren't they?---No. As I said to Commissioner Mansfield with regard to the radial allowance, we had quite a lot of discussion about the radial allowance, the cost impact and what the previous practice was for people coming off the receipt of allowances to minimise impact on superannuation and other factors for the defined benefit fund. So, we did negotiate that.
PN4100
And was an agreement reached in relation to the removal of the radial allowance?---No.
PN4101
No. You know the company requires the removal of the radial allowance, don't you?---And there is a process, as we said at the meeting, for that to occur. There was a diagnostic review, and this was mentioned to the three negotiators, some years ago, that looked at the issue of allowances the relative compensation for the removal of those allowances, and I put to the company, if you are prepared to consider the pay-out for the diagnostic review pay-out, the unions will caucus and consider it. They never came back to us on that.
PN4102
All right. So, is it fair to say that in relation to that the issue as the company puts it forward has not been conceded by the unions, that is right?---Mm.
PN4103
Yes. And there will be more caucusing and more considering perhaps in relation to that issue?---As with every issue, yes.
PN4104
All right. Now, Mr Georgiou, just finally, is it the position of your particular organisation that you pursue common conditions and common outcomes with the other unions on whose behalf you lead these negotiations?---No.
PN4105
No. It is not contemplated though, is it, that there would be separate agreements for the unions?---Not at this company, no.
**** MARK GEORGIOU XXN MS MACLEAN
PN4106
In relation to the 36-hour week, it is a claim that is pursued on behalf of your organisation, is it not?---Amongst a number of others, yes.
PN4107
Yes, but it is in - it is an essential element of this claim is what I am putting to you?---It is an essential element of the three - four unions - three - and how it comes out in the wash I don't know.
PN4108
Thank you, Mr Georgiou. I have nothing further, Commissioner.
PN4109
THE COMMISSIONER: Good thank you, Ms MacLean. Mr Borenstein, just before you start, Mr Georgiou, one of the statements by Mr Drew was that in one of the meetings which was undertaken, and I think it was the meeting which was undertaken shortly after the conciliation proceedings here in the Commission, the company and the unions appeared to make some progress on issues such as the early start time, for example, and then Mr Drew's evidence was, at a later meeting, which was undertaken not very long after, I think it might have been the meeting after the discussions with Mr Pope, it may have been that one, but in any case, he said, at a later meeting, all of the gains that they thought they had made in trying to come together and reach agreement on the issues seemed to be swept aside, and I think his note says the negotiations are going backwards.
PN4110
Now, that obviously is a factor in the judgment that has to be exercised here as to whether or not there is an opportunity for the parties to be able to achieve an agreement on these matters. Now, what do you say about that, that they made progress and there was evidence of some developments which appeared to be moving towards an agreement, and then on the next occasion it seemed to be all taken off the table and there were disagreements about what in fact was agreed and the way Mr Drew described it was, they were going backwards?
PN4111
MR BORENSTEIN: Commissioner, just before Mr Georgiou answers that, it may assist to have the specifics. I think for the meeting you are talking about where the progress was said to be made was 30 January, and then the meeting of 9 February was the one, is the second meeting which - and that took place shortly after a visit to the Commission. So, it is SPI3, the first one, and the second one is SPI6.
**** MARK GEORGIOU XXN MS MACLEAN
PN4112
THE COMMISSIONER: Yes. I think Mr Georgiou might have those, actually?---No. I do remember both, so I don't need to refer to them. The company referred a section 99 dispute, I think it was section 99, to the Commission. We were directed - not directed formally; we were advised by the Commission to continue the negotiations. We set up a meeting late on a Friday afternoon at Thomastown, which was the first time we had met at Thomastown.
PN4113
Mr Georgiou, the point I am coming to here is, Mr Drew described some progress in the first meeting, then all of a sudden everything was taken off the table, and in Mr Drew's words, they were going backwards?---Well, at Thomastown we - - -
PN4114
Now, is that a fair description of what happened, or not?---No. The company changed its position. The Thomastown meeting discussed the issue of the 4 am starts for five occasions. The next meeting, and what transpired in between was that there was an unlimited number of 4 am starts without agreement, and suddenly the 10 days on a weekend without penalty but time off in lieu appeared, so between the meeting at Thomastown and the next meeting the fact that the unions were looking at 4 am starts gave the company licence to include other issues.
PN4115
So are you saying that the company misunderstood or went further than the matters that were in fact agreed?---I think they were - they had decided to - once we had shown that we were prepared to concede the 4 am start that they needed to broaden that to either extract more concessions or to make the negotiations break down.
PN4116
**** MARK GEORGIOU RXN MR BORENSTEIN
PN4117
MR BORENSTEIN: Mr Georgiou, just in relation to the last answer you gave to the Commissioner, why do you have any thought that the company would be seeking to make the negotiations breakdown?---I don't think they have ever been able to come to grips with the hours claim. That was evident to me when I met with Mr Ficca, the CEO, and Mr Broomfield very early on. They indicated during the negotiations that they would like - they threatened the unions that if we didn't drop our claim they would seek arbitration using the paid rates award stuff. That was raised on at least three occasions during the negotiations.
PN4118
All right. Just on other matter, in the course of your answers to Ms Maclean you gave an example of a proposal that the unions had put forward as a possible saving to the companies on account of the 36 hour week, and you mentioned something about starting work earlier. Do you still have in front of you that chart which is SPI4?---Yes, I do.
PN4119
Do you see the first item in the third column:
PN4120
In the switch yard dressed and ready for permit at 7.35 am...
PN4121
?---Yes.
PN4122
Is that the item that you are referring to?---Yes.
**** MARK GEORGIOU RXN MR BORENSTEIN
PN4123
Yes. Yes, thank you. I have no further re-examination.
PN4124
THE COMMISSIONER: Thanks, Mr Borenstein. Good.
PN4125
MR BORENSTEIN: May Mr Georgiou be excused?
PN4126
PN4127
MR BORENSTEIN: I call Mr Hayes.
PN4128
PN4129
MR BORENSTEIN: Mr Hayes, is your full name Wesley Hayes?---Yes.
PN4130
And is your address 516 to 520 Swanson Street, Carlton South?---That is correct.
PN4131
And are you an organiser with the Electrical Division of the CEPU?---That is correct.
PN4132
And do you presently have responsibility in the power industry, including the SPI PowerNet?---That is correct.
PN4133
Okay. How long have you been organising in that area?---Within the power industry, about eight months but since about August 2003; within the union this is my eighth year.
PN4134
Okay. Now, you have prepared a short witness statement for this case in which you adopt the contents of Mr Georgiou's witness statement insofar as it relates to the 2004 negotiations?---That is correct, yes.
PN4135
Yes, and is it limited to that because you did not participate in the earlier negotiations?---Yes.
PN4136
All right. Commissioner, I wonder if that statement might just be tendered.
PN4137
THE COMMISSIONER: Yes, it can, Mr Borenstein. This is BS2? I might just re-number, change the initials there, Mr Borenstein.
PN4138
MR BORENSTEIN: I am not in the least offended, Commissioner.
**** WESLEY HAYES XN MR BORENSTEIN
PN4139
PN4140
MR BORENSTEIN: Now, could - Commissioner, I wonder if we could just ask the witness whether there are any of the notes of meetings left behind in the witness box?
PN4141
THE COMMISSIONER: No, there weren't; there weren't, Mr Borenstein.
PN4142
MR BORENSTEIN: I see, okay. I wanted to take him to the notes of the meeting on 30 January which are in exhibit SPI3.
PN4143
THE COMMISSIONER: It would help me, Mr Borenstein, if one of your colleagues could probably hand something up.
PN4144
MR BORENSTEIN: Yes, I will see if we can pull one out.
PN4145
THE COMMISSIONER: I would rather have something in front of me.
PN4146
MR BORENSTEIN: Well, we have got a bundle of SPI exhibits. Perhaps we will just hand them up.
PN4147
THE COMMISSIONER: Good.
PN4148
MR BORENSTEIN: Now, could you have a look at the document that is marked SPI3, please, Mr Hayes. That is a note of what the company says happened at a meeting on 30 January. Do you have that there?---Yes.
**** WESLEY HAYES XN MR BORENSTEIN
PN4149
And it should be followed by a chart with columns and entries?---Yes.
PN4150
Got that?---Yes.
PN4151
All right. Well, just going back to the first of the two documents SPI3, you will see that there are three items noted there in the minutes, the first one being the 36 hour flexible working arrangements; yes?---Yes.
PN4152
In the underlined part of that entry in the first paragraph you will see that the company refers to creating a win/win situation; they have obviously adopted the code for the introduction of a 36 hour week. And there is a proposal there that field staff be available for work up to five times per year starting at 4 am with no penalty rates. Do you see that?---Yes.
PN4153
Now, they then note that there was some discussion and that the proposal was amended, and they set out some further ideas in the following paragraphs. Do you see those?---Are they the ones in italic?
PN4154
No, the ones in the second and the third paragraphs?---Yes, yes.
PN4155
Do you see those?---Yes.
PN4156
Now, do you have a recollection of this discussion at the meeting?---Not on the 30th because I wasn't at the meeting.
PN4157
Were you not?---No.
PN4158
I see, okay. All right. Well, then that is the answer to that. Were you at the meeting on 9 February?---Yes.
**** WESLEY HAYES XN MR BORENSTEIN
PN4159
Okay. And if you turn some pages in that bundle that you have got there to a document numbered SPI6, you will see a note of a meeting on 9 February?---I think SPI6 is missing.
PN4160
It is missing?---I have got 5 and 7.
PN4161
THE COMMISSIONER: I want them back, Mr Hayes?---Yes.
PN4162
MR BORENSTEIN: Now, you were at this meeting, and can I direct your attention firstly to the heading: Actions, in the second paragraph where it reads:
PN4163
There was significant disagreement on the wording of the SPI PowerNet record of the understandings reached.
PN4164
Do you see that?---Yes.
PN4165
Now, in relation to the use of contractors, you will see that it is recorded that the unions were concerned about reference to contractors requiring an EBA with the unions. Do you see that?---Yes.
PN4166
Now, when it says "the unions were concerned", who was doing the talking on this subject on the union side?---Oh, it would be me, myself.
PN4167
It was you?---Yes.
PN4168
Do you recall doing that?---Yes.
**** WESLEY HAYES XN MR BORENSTEIN
PN4169
Yes, okay. And can you just explain to the Commission what was the issue about that?---Just a short background to the contractors' claim: the contractors' claim came - our initial claim for the use of contractors is one of engaging contractors by agreement. Currently we have an agreed list arrangement with the company and we are happy to continue that arrangement, and have indicated that to the company. But we want words in there that talk about agreement and no reference to being unreasonably withheld or anything that is vague. During the course of negotiations the company have, I suppose, interpreted our claim as one where all contractors have to have an enterprise agreement. Now, that has certainly been discussed during negotiations but we have remained - we have stuck to our position around the fact that agreement making process is the important part and the end result of that. Where the issues become complex was when the company was saying that contractors have to have an EBA, and it got to a point where they had actually effectively agreed to those words with our union, I was concerned that putting those words in an enterprise agreement may not render the agreement certifiable. So this - I suppose I am getting ahead of myself a little bit but just in reference to that, that is where we were all coming from.
PN4170
So is that what is meant by the first sentence there?---The unions would - - -
PN4171
Is that the background?---The first sentence:
PN4172
The unions were concerned - - -
PN4173
Yes?---Yes, that is correct.
PN4174
Okay. And so what was it that you were putting to overcome that problem?---Our initial claim was the engagement of contractors by agreement; no reference to EBA.
PN4175
Yes?---And that by-passes - that deals with that.
**** WESLEY HAYES XN MR BORENSTEIN
PN4176
Yes, and what response did you get to that?---Graham - at the meetings, and it started around about the 9th, coming out of the 9th meeting. The company were comfortable with those words which was our initial claim. There might have been some preamble in that document which talked about six monthly meetings or some other discussions which can help manage the issue of contractors, and we were comfortable with that. And the only objection I can recall was that Mr Drew had concerns with it. And certainly Mr Broomfield raised concerns about tree clearers but I did say to him: well, on a case by - or individual basis or case by case basis, we can work around that. So I thought we had had agreement on the use of contractors, to be honest.
PN4177
Was there - do you recall an issue being raised about whether the unions intended that the contractors' clause would apply to all non-core contractors?---No. And if it has been said once, it is said a thousand times. We are not interested in Jim's Mowing or Jill's Catering or John Smith, rose bush trimmers. I mean, they are not the contractors that effectively are engaged in the core work that - where we have membership coverage.
PN4178
And has that been conveyed to the company?---Yes, very clearly. It has been said verbally to them and say on the public record again, and I have said it to every company, we are not interested in the Jim's Mowing type approach.
PN4179
All right. In relation to this particular company, can you recall whether it was made clear at this meeting on 9 February?---Yes, absolutely.
PN4180
And then what is the reference to the tree clearers; how did that arise?---The reference to the tree clearers, because the - the scope of the clause could cover anyone and everyone. And first we eliminated that we don't want to cover anyone and everyone, but we did indicate that we do have tree clearers as members in the union which is the historical one and we would like those covered. And the company said, well, they specifically used an example of someone in Mildura, and I said, well, look, we can work around one person cutting a tree in Mildura, that is not the intent of the clause and we can specifically work around that. But certainly tree clearers as a big company, and there are some big companies out there, we would hope that the clause would cover them.
**** WESLEY HAYES XN MR BORENSTEIN
PN4181
All right. And when you explained that to Mr Broomfield, what was his response?---They were happy to - he didn't have any problems with it and they were happy to put the issue to bed. And I specifically remember the company saying: has anyone got any problems with that, and Mr Drew had a concern with it. And the item from there was not in the agreed basket again, or unagreed or not agreed.
PN4182
Do you recall what Mr Drew said about his concern; what he was concerned about?---No, no.
[12.38pm]
PN4183
Now, have you been able to make any further progress on this question of the contractors since 9 February?---The meeting on the 27th I was of the view that once again - well, I thought we were still - fairly well had an agreement, but I am just trying to - I don't recall that we progressed it on the 27th.
PN4184
All right. Now, the second item in that document is flexible hours, and you will see that there is a note there which says that discussion took place on the contents of the e-mail sent to the unions by SPI Powernet on 2 February 2004. The unions advised the situation as stated in the e-mail was not their position on the matter. Right?---Mm.
PN4185
Now, it then says:
PN4186
The unions advised after discussion with their members the following was their position on the matter -
PN4187
and there are three points set out, okay?---Yes.
PN4188
Now, in relation to the first of them, and this is dealing with the time of the start, what is recorded is that the 4 am to 6 am start would be at overtime rates:
**** WESLEY HAYES XN MR BORENSTEIN
PN4189
...and would be additional to a normal work day, that is, normal work would continue through to 2.30.
PN4190
And it said:
PN4191
This was not SPIs understanding which was the 4 am to 6 am would form part of a normal day with those hours paid as overtime.
PN4192
Right?---Yes.
PN4193
Now, can you tell us what happened to the discussion on that issue?---I missed the meeting on the 30th, and when I came - when I attended the meeting on the 9th my recollection is when the company put on the meeting on the 9th that this is, I suppose, their response to what was discussed on the 30th, people's immediate reaction, every person from every union was, well, hang on, that is not what was agreed at that meeting. It was consistent and clear from everyone.
PN4194
All right. Was there any - okay. Now, going to the second point which is the number of times that the 4 am starts would apply - - -?---Yes.
PN4195
There was also disagreement there, it seems?---Yes.
PN4196
Can you tell us what the disagreement was?---The company wanted more than five times a year.
PN4197
Yes?---And the unions' position was that up to five times a year was something they could live with and work around or work within their roster, and that was what was agreed at the previous meeting, their understanding was.
**** WESLEY HAYES XN MR BORENSTEIN
PN4198
And then item number 3 which talks about undertaking of work would be by mutual agreement only, is that referring to work commencing at 4 am but in addition to the prescribed five times, or is it referring to something else?---To be honest, I couldn't - I can't recall on that one, because I don't know the detail of what was put.
PN4199
All right. Now, was there any attempt made by the company to go back and renegotiate this 4 am start issue?---Not at the - no. I think the company either in its - in its own head had convinced itself that what they were putting was their interpretation the meeting on the 30th was gospel and clearly in the unions' eyes it wasn't, and the barriers went up.
PN4200
Now, when the 4 am start was proposed in the first place, that was a new working pattern for the members of the union, was it?---Members could work early starts and have in the past, so I am not sure if it was new in that sense, but I think on how the company were proposing early starts were - in early stages I recall them talking about taking away penalty rates or something to that effect, and that would certainly be new.
PN4201
All right. And was there - no, I withdraw that, thank you. Now, going to the attached - the chart that is attached to the minutes of the - or the notes of the 30 January meeting, that is exhibit SPI4 - - -?---Yes.
PN4202
Do you see in the first column there is an item:
PN4203
In the switch yard, dressed and ready for permit at 7.35.
PN4204
?---Yes.
PN4205
Where did that proposal emerge from, from the company, from the unions, or from where?---No, that came from - some of the shop stewards thought up that proposal and relayed that proposal, and relayed it to the company in meetings.
**** WESLEY HAYES XN MR BORENSTEIN
PN4206
All right. And are you able in brief terms to just explain what the significance of it is, or where the savings arise?---I am led to believe that being dressed and ready for a permit at 7.35 if employees start at 7.30 it leads to more productive working day, if you want to call it that, because I think the current practice is that people can be dressed and ready at 8 o'clock, as an example, or 10 to 8, so it is a significant in minutes per day in which people can get more work done, and it might work out to 15 or 20 minutes a day.
PN4207
All right. Now, can I ask you to turn in that bundle to the document that is numbered SPI9, which are the notes of the bargaining unit meeting on 17 February. Were you - you were at this meeting?---Yes.
PN4208
Yes. In relation to the relocation policy which you see is noted at the foot of the page, can you tell the Commission whether the unions put any proposal on this policy to the companies?---Yes. At that meeting Mr Georgiou - the company were asking for the relocation policy to be traded. Mr Georgiou specifically mentioned that if the company wanted to get rid of it there was a custom and practice within the industry that has paid out some policies or words to that effect, and he said he - they would use that as a guide as to what it would cost the company, and he did put a figure or a time - a figure to the company in terms of what it would cost. It was up - I think it was a minimum of about 3 or 4 and up to about 10 years in terms of a cost analysis on how you would determine that.
PN4209
Any event, a proposal was put?---Yes. A counter proposal was put from the union, yes.
PN4210
And was there any response to it?---The company rejected it.
PN4211
And was anything more put by the company?---No.
PN4212
Now, in relation to - on the second page, in relation to the issue of apprentices, there is a reference to a ratio which is said that the unions would accept, that is, 1 to 4.5?---Yes.
**** WESLEY HAYES XN MR BORENSTEIN
PN4213
Was your original claim in this case the same as in the other companies, of 1 to 3?---Yes, that is correct.
PN4214
And has that issue been able to be progressed since 17 February?---No, not as yet. I would like to sit down and have a decent session with the company to go through that, but we haven't had a full session to talk specifically about apprentices. We have exchanged - they have given me current numbers and we have obviously got to weigh all that up and have some discussions with our shop stewards.
PN4215
Now, can I take you to the meeting that occurred with Mr Pope on 26 February?---Yes.
PN4216
THE COMMISSIONER: Mr Borenstein, do you expect to be much longer?
PN4217
MR BORENSTEIN: I would think at least half an hour or so.
PN4218
THE COMMISSIONER: Another half an hour. Well, we might adjourn at this point, I think. We will resume at 2 pm.
LUNCHEON ADJOURNMENT [12.49pm]
RESUMED [2.04pm]
WESLEY HAYES:
PN4219
THE COMMISSIONER: Mr Borenstein.
**** WESLEY HAYES XN MR BORENSTEIN
PN4220
MR BORENSTEIN: Thank you, Commissioner.
PN4221
Mr Hayes, you attended a meeting with Mr Pope on 26 February?---That is correct.
PN4222
Along with a number of other people?---Yes.
PN4223
There were representatives from ASU, from your organisation?---Yes.
PN4224
Any other organisations?---From the union side, I think that was it.
PN4225
Okay?---Yes.
PN4226
And on the employer side, can you give us a quick run down on who was there?---In terms of numbers, there was probably, I think, two from each company, as a rough guide, and there was one representative from NECA.
PN4227
When you say two from each company, you mean two from each of the - - -?---Same company - - -
PN4228
- - - electricity distribution companies?---Distribution companies, yes.
PN4229
All right. And SPI PowerNet were represented among that group?---That is correct, yes.
PN4230
All right. Now, in relation to the negotiations with the various employers that were there, were there negotiations going on on 36 hour claims with each of the employers that was there?---Yes.
**** WESLEY HAYES XN MR BORENSTEIN
PN4231
And with NECA?---Yes.
PN4232
And were the negotiations with each of the employers and NECA at the same stage?---Varying stages, with NECA.
PN4233
And what about with the employers?---Varying stages, with each distribution company and SPI, yes.
PN4234
All right. Now when you went to this meeting, who else was there from your organisation?---There was myself, I think Greg Arnett was there, and I - Dean Mighell was there as well. He might have come late, I can't remember, but he was certainly there.
PN4235
All right. And what, to your recollection, was the process that was undertaken at that meeting?---The process was that issues were identified, as to where the parties were apart, at that stage. And that was done on a sort of a generic approach, because - it was a difficult forum to get into the nitty gritty of negotiations, because prior to that, you had been negotiating at enterprise level, effectively with every company. And maybe had a minimum of half a dozen meetings or so by that stage. So I think - and suddenly he was this one mediator and we were dealing with issues - or attempting to deal with issues at an industry level. I think it was a little bit - the parties were apprehensive as to what their - what cards they might play in that forum, I suspect, or I know. Certainly know we were.
PN4236
All right. Now, what position did your organisation take at the meeting in terms of putting its views forward on the negotiations?---Well, besides the fact putting forward as to what was outstanding, and each union did that, ourselves and the ASU, we took a conservative position, and that was that we wanted these issues and we wanted a certain - we had a position on a certain issue and that is how we wanted to move forward. It was put fairly bluntly.
**** WESLEY HAYES XN MR BORENSTEIN
PN4237
Okay. And what was the position that you put on the 36 hour week?---The 36 hour week, words were put that there were no trade-offs.
PN4238
Right. Now, did you say anything else to the meeting?---I said to the meeting that I know there were people - there were companies represented at that meeting - and I remembered addressing all the meeting at this point - who have either told us they have got an agreement on - we have reached agreement on the 36 hour week, or we are looking at ways on how it is implemented at our workplace. And I said that to all the people, all the audience sitting in that meeting.
PN4239
Did you get any reaction?---No.
PN4240
All right. And then after the meeting where everybody was present, what happened?---Yes. I was informed - - -
PN4241
Well, did you remain in one meeting, or did you split up or what?---No, we went into various caucuses, the parties went into different caucuses.
PN4242
All right?---Yes.
PN4243
And did you have any discussions with Mr Pope in those caucuses?---Yes. Mr Pope was attempting to bring the parties, I suppose, closer together, or trying to identify where they are apart more than anything else. It was a difficult meeting, I think, for him to be involved in as well, given the circumstances, the history of that. But it was certainly indicated to me that my statement had caused some unrest amongst the companies.
PN4244
In what sense?---I think that the - not any one company wants to be singled out as talking to the union.
**** WESLEY HAYES XN MR BORENSTEIN
PN4245
Now, on the following day, there was a meeting of the single bargaining unit with SPI PowerNet?---Yes.
PN4246
That is on the 27th. You should have in that bundle of documents that you have got in front of you a document which is the notes of that meeting, and which should have SPI14 on it. Have you found that?---Yes.
PN4247
Good. Now, you were at that meeting?---Yes, yes.
PN4248
Yes. And do you see under the heading of the document you have got there, under the heading, Actions, there is a reference to the company being disappointed about not getting any agreement on the 36 hour week, and then there is discussion focusses on the 36 hour week, and then there is a note that the unions advise that there wouldn't be any trade-offs. Yes?---That is correct, yes.
PN4249
Now, is it your recollection that that is an accurate statement of the unions' position there, that there would be no trade-offs? That that was what was said to the meeting?---No. that is - what happened at that meeting was - I think the companies were a bit worked out - worked up about the no trade-offs comment made at the mediation, and - the day before, but given it was a different forum to what everyone had been used to, that sort of explained that. But the first issue that was talked about on the 27th was the issue about the 36, because it was perceived to be, you know, the big one, rightly or wrongly. And the company have been raising the issue that it is a cost, and no-one has ever denied that. And two issues that I identified as outstanding were costs and 36 hour. And I said to the company, well, if they are the two issues that are the deal breakers in this business, you don't have to be Einstein to work out, if we are asking for 6 per cent, the 36 is outstanding, you do the formula. I mean, you don't have to be Einstein to work that out. You know, come back to us with some - and which they didn't, at that stage. So - and they haven't to yet. And that is where it - after we had this - I had this discussion, the dialogue started with Mark Georgiou after that, and then it got into the melee.
**** WESLEY HAYES XN MR BORENSTEIN
PN4250
Well, before we get to that, when the discussion started about the 36 hour week, was anything said to you about the comments that had been made at the Pope meeting?---Yes, the company - because Dean Mighell had been reported as saying that there were no trade-offs, the company said, well, Dean Mighell said there is no trade-offs, so there is not going to be any trade-offs. And I responded by saying, I am the one negotiating the agreement, I am the one who has been here for the whole process, I will be the one, along with the shop stewards, who determines how the agreement ends up, and Dean Mighell will obviously sign it at the end, but I am the one that decides what the content of the agreement is with the stewards, not Dean Mighell. And I said that to the company, and made it very clear to the company at that meeting.
PN4251
And what response did you get when you said that?---Well, they didn't believe me.
PN4252
All right. Then after that, did you witness an exchange between Mr Georgiou and some of the company representatives?---Yes, that was the slanging match, yes.
PN4253
All right. Well, we won't use that sort of language, we will just deal with it objectively then. Do you recall how that started?---It was - it came out of - when the issue about - and I said, you don't have to be Einstein to work out if pay is outstanding and 36 is outstanding, and cost is an issue, like put two and two together, well, you work out that, then Mark Georgiou started talking about - when the company were mentioning trade-offs, he said, well what do you want for trade-offs? And then it got into that dialogue about, well, they were going to start telling us, and then they stopped, and then it ended up into a sort of verbal match after that, where Mark wanted to know what they were, they didn't want to give them over. And then when the company proceeded to get up and go into our intermission, that Mr Drew got into his verbal barrage, I suppose, if you want to call it that.
PN4254
Do you recall - you said when they started telling you the trade-offs, do you recall who was telling you the trade-offs?---Mr Amor started to read them out, and was stopped.
**** WESLEY HAYES XN MR BORENSTEIN
PN4255
Who stopped him?---From recollection, it was Mr Broomfield stopped - Mr Broomfield - Mr Broomfield made a comment, then Mr Drew intervened with, I suppose, an overpowering comment. But initially it was sort of both of them. Then Mr Drew took the stage and stopped him.
PN4256
Okay. Now, you were in court this morning when Mr Drew gave his evidence?---Yes.
PN4257
And when I questioned him about this meeting?---Yes.
PN4258
Do you recall him saying that he didn't see any purpose in telling the unions the trade-offs that the companies wanted, because the unions knew them already?---Yes.
PN4259
Did you remember him say that?---I heard him say that, yes.
PN4260
Now, at this meeting on the 27th, did you know all of the trade-offs that the company was looking for for the 36?---No, I am hearing - I have varied reports on what the companies' position is on the trade-offs.
PN4261
Well, coming back to my question, on the 27th - - -?---Yes.
PN4262
- - - did you know all the trade-offs that they wanted?---No. No.
PN4263
In terms of what you call the exchange between Mr Georgiou and Mr Drew at that meeting, you were in court when Mr Georgiou gave his evidence just a little while ago and explained what had happened?---Yes.
PN4264
How does that match your recollection of the event?---I agree with everything he said.
**** WESLEY HAYES XN MR BORENSTEIN
PN4265
What happened after the, what you call the intermission?---I don't recall much happening after that. I - from my recollection is, that the meeting broke up shortly after the intermission. I don't recall how long after, but - - -
PN4266
All right. Now, you have told us that you told the company at this meeting on the 27th that they shouldn't be distracted by what had been said at the Pope meeting, and that you were there ready to negotiate?---Yes.
PN4267
It is now the 29 March, what is the position of your organisation now in terms of negotiating on the 36 hour week and the trade-offs that the company are asking for?---Well, we want to sit down with the company, obviously, and work through all the issues and the concerns they have with the 36 hour week, and we will seek to address those concerns, consistent with what our claim is for the 36.
PN4268
Is there - is it the position of the union that you will - does the union have a position on countenancing trade-offs for the 36?---Sorry, what do you mean by "countenancing"? What does that mean?
PN4269
THE COMMISSIONER: Possibly agreeing to?---Yes, absolutely. We - you can't have your blinkers on in negotiations. You can't and if you do I think you would be a little bit foolish.
PN4270
MR BORENSTEIN: Thank you.
PN4271
PN4272
MS MacLEAN: When did you take your blinkers off, Mr Hayes, in respect of SPI PowerNet?---Sorry, what was that?
**** WESLEY HAYES XXN MS MacLEAN
PN4273
When did you take the blinkers off in respect of SPI PowerNet. You just told us that "you can't have your blinkers on in negotiations in if you do, you would be a bit" - I didn't quite catch the last part of that?---Foolish, yes.
PN4274
Foolish?---Yes.
PN4275
When do you say that, as far as your organisation is concerned, those particular blinkers came off in respect of trade-offs?---You always go into negotiations with blinkers off.
PN4276
Yes, and you had a proposal before you, didn't you, which was put forward by SPI on 30 January, you remember that?---No, I wasn't at that meeting.
PN4277
No, I noticed that. But then, you see that an e-mail was sent out by the company after that meeting, setting out what it understood had been, if not agreed, then certainly suggested at that meeting. You remember that?---No, I don't remember the e-mail, no.
PN4278
Do you say that you didn't get the e-mail?---No, I don't remember receiving it. I may have but I don't remember actually accessing it and reading it.
PN4279
Right, so you may not have even read the e-mail that came out around about 30 January?---I was in Sydney for about three or four days around that time.
PN4280
Have any discussions with Mr Georgiou or Mr Rizzo about what happened at 30 January meeting?---Certainly not while I was in Sydney. I don't recall - my first recollection of 30 January meeting in any great detail, was on the 9th of Feb when I went back into the bargaining unit process.
**** WESLEY HAYES XXN MS MacLEAN
PN4281
So, you hadn't been appraised of the or - shall we say, proposal on the table from the company, as to how you might progress the 36 hour week? You say you didn't know about that until 9 February?---I wasn't aware of what came out of 30 January meeting in any great detail until about the 9th of Feb when we sat in the caucus and the company came back with a document and that is where the disagreement got in and I had to get up to speed on why we are disagreeing on all this stuff.
PN4282
So, Mr Georgiou hadn't told you, or Mr Rizzo for that matter, that there was a proposal on the table from the company as to how the 36 hour week might be progressed?---There is no - I can't recall any conversation where they said to me, "Oh well, we have got an agreement", or vice versa. The company may have said, "Do we think we are closer after the result in that meeting?". I honestly can't recall anything in detail outside of what occurred on the 9th.
PN4283
All right. Now, if we could just go back a few steps in time, Mr Hayes, the 36 hour week claim, I think you will acknowledge, is a very important claim as far your union is concerned?---Well, a lot of the issues - - -
PN4284
Just confine yourself to the 36 hour week?---Just on the 36?
PN4285
Yes?---Yes, that is an important claim, yes.
PN4286
It is? And it is a claim about which there has been a lot of, shall we say, media and other statements made by Mr Mighell and others in support of that claim, hasn't it?---There has been comments made in the media, I don't know the details of every media comment that has gone out, but - - -
PN4287
You will recollect, do you Mr Hayes, that there was a mass meeting called by your organisation for employees in the power industry?---Yes.
**** WESLEY HAYES XXN MS MacLEAN
PN4288
You were at that meeting?---Yes.
PN4289
Perhaps if I could just show you this document first. It is - - -?---Is that one or two?
PN4290
No, if you could just pass one over the Commissioner's associate, thanks, Mr Hayes. You recollect seeing that document?---Not that one.
PN4291
No?---No.
PN4292
Haven't seen that?---No, I think that looks like a press release.
PN4293
Yes?---We had another sort of notice we send out to our members which is the one I was more, sort of - - -
PN4294
All right?--- - - - drafted up, but not the press release.
PN4295
Now, this tells members of the press that there is to be a meeting on Wednesday, 4 February at the Collingwood Town Hall?---Yes.
PN4296
And that the meeting is to discuss a number of things; being apprentices and the enterprise - well, and one of the other matters to be discussed, Mr Hayes, wasn't it, was the present enterprise bargaining negotiations in the power industry?---Yes.
PN4297
Yes. What do you say about the claim that Mr Mighell makes there about the not training of one single apprentice in the privatised power industry, in respect of SPI?---Whereabouts are you reading there? The second?
**** WESLEY HAYES XXN MS MacLEAN
PN4298
First paragraph?---First.
PN4299
Between 1992 and 2002 - - -?---Yes.
PN4300
- - - didn't train one single apprentice, is that true?---Strictly speaking, I don't think it would be, no, no.
PN4301
Now, the mass meeting was held on 4 February at Collingwood?---Yes.
PN4302
You were at that mass meeting?---Yes.
PN4303
And there were speeches made - there was a speech made by Mr Mighell, wasn't there?---Yes.
PN4304
You stayed for the duration of his speech, did you?---Yes.
PN4305
And then there were a number of resolutions passed?---Number, I think, one might have encaptured a few things.
PN4306
One, maybe two?---Yes.
PN4307
All right. And Mr Mighell told the meeting that the pursuit of the 36 hours was a critical claim for the union?---Yes, he may well of, I am not - it was an important issue so - - -
PN4308
He certainly wasn't - - -?---I specifically can't remember him saying "critical claim" but - yes.
**** WESLEY HAYES XXN MS MacLEAN
PN4309
He certainly didn't down play the importance of the 36 hour week, did he, Mr Hayes?---No, I think that would be fair, yes.
PN4310
PN4311
MS MacLEAN: Recognise those documents, Mr Hayes, that I have just shown you; the recommendations?---Yes.
PN4312
And those recommendations were passed by the mass meeting?---Yes, they would have been, yes,
PN4313
Yes, and you will see that one of the parts of the recommendation which is marked number one is:
PN4314
We resolve that we must stay a strong and united group to achieve more secure employment, more apprentices, better health and safety practices, and shorter working hours.
PN4315
I tender those, Commissioner.
PN4316
**** WESLEY HAYES XXN MS MacLEAN
PN4317
MS MacLEAN: Yes, that would be fine.
PN4318
As far as you are aware, Mr Hayes, there has been no further mass meeting of your organisation, has there?---No.
PN4319
Those recommendations, as they were passed, haven't been withdrawn or resiled from in any way?---Yes, they have been resolved - what is that last word you used?
PN4320
Resiled from?---Resiled from? Yes, sorry. The apprentice ratio issue; we are making progress across - we are certainly making progress in the issue - on that issue with a number of companies.
PN4321
The claim there is for more apprentices?---Yes, a ratio of 1 to 3.
PN4322
Not in the resolution, Mr Hayes; the claim was for more apprentices, you haven't resiled from that claim, have you?---No, certainly not from that one, no.
PN4323
No. And you haven't resiled from the claim for shorter working hours?---No.
PN4324
No. And the position of your union, is it not, as of today, is that those shorter working hours are to be 36 per week?---Yes.
PN4325
Yes, right. Now, that mass meeting also endorsed a campaign of industrial action, did it not?---Yes.
PN4326
And notices of industrial action, I think, were served fairly shortly after and bans were in place shortly after these mass meetings were held, is that right?---Yes, yes.
**** WESLEY HAYES XXN MS MacLEAN
PN4327
Yes. And you say, do you, that when you went to the mass meeting on 4 February you had no knowledge of the proposal that SPI had put on the table for progressing the 36 hour week claim?---Can you repeat that again, sorry.
PN4328
Yes. Are you saying that when you went to the mass meeting on 4 February you had no knowledge of the proposal put forward by SPI PowerNet on 30 January, to progress the 36 hour claim?---In between 30 January and 9 February, I was not aware that there had been any significant breakthrough at SPI that constituted everyone being happy, I suppose.
PN4329
All right. Now, you were asked some questions by Mr Borenstein about the meeting with Mr Pope, do you recollect that?---Yes.
PN4330
Did you attend the meeting with former Commissioner Merriman, earlier in that week?---Yes.
PN4331
Yes, and what form did that meeting take? The meeting with Commissioner - former Commissioner Merriman?---It was a similar forum where all the parties were gathered around the table with similar numbers, if not the same. And issues identified.
PN4332
And you said to that meeting that your position in respect of the 36 hour week was that there would be no trade-offs, didn't you?---I honestly can't remember if I would have said that, but as I indicated before, given the nature of that forum in the comparison to what we had been dealing with, we may have been playing some conservative cards, to use the poker analogy.
PN4333
You certainly didn't indicate at the meeting with Commissioner Merriman, that the union was prepared to entertain trade-offs?---Once again, as I have said, I am not sure that forum was an arena where we were getting into detailed negotiations.
**** WESLEY HAYES XXN MS MacLEAN
PN4334
You didn't say that but, did you, Mr Hayes?---No, I certainly didn't say that, no.
PN4335
And at the meeting with Mr Pope, you said there would be no trade-offs. You don't deny saying that?---No, I don't deny saying that but it is in the context of where that forum had positioned itself in the broader industry negotiations.
PN4336
You said that you were concerned because there had been varying stages reached amongst some of the distribution companies?---No, I didn't say that.
PN4337
Varying stages of negotiations reached - - -?---Yes, certainly - - -
PN4338
- - - in respect of the 36 hour claim?---Across all the companies there were varying stages of negotiations in respect to that, yes. Sorry, I thought you were leading to another comment I made.
PN4339
No, but we will probably get to that one too?---Sure.
PN4340
The negotiations, I have got a note of you saying - - -?---Yes.
PN4341
- - - with employers, on the 36 hour claim, were at varying stages?---Yes, that is correct.
PN4342
And you were concerned that because you had only had half a dozen meetings in some cases, that you didn't want to get into the nitty gritty. Is that what - that is what you said, isn't it?---No, it was - we were dealing with the negotiations at an enterprise level, with each company and suddenly - and because the negotiations with each company and companies that were represented at the table were at varying stages, it wasn't prudent industrial relations strategy, to play all your hands at a centralised forum when you were at varying stages with different companies. You just wouldn't do that.
**** WESLEY HAYES XXN MS MacLEAN
PN4343
Mr Hayes, the comment you made in respect of the trade-offs, was in fact the union's position, was it not? There would be no trade-offs for the 36 hour week?---Well, in that forum - - -
PN4344
It either was or it wasn't?---Well, the fact that we were at varying stages of negotiations with different companies in our opinion proved that we were negotiating in the appropriate forums with those companies on specific instances on how the 36 would be implemented.
PN4345
Are you suggesting that some companies had, by that stage, conceded to 36 hour week?---Yes, they had told us that privately, represented at that table, yes.
PN4346
THE COMMISSIONER: When you say, do you mean at that meeting; the companies at that meeting at that time.
PN4347
MS MacLEAN: Yes, yes I do, Commissioner.
PN4348
And who were they?---I wouldn't disclose that.
PN4349
All right. Did you disclose it at the meeting?---No.
PN4350
No?---Other than to make the general comment that I know there are companies represented here today that have agreed, or in the process of working out how to implement the 36 hour week. And they had told us that.
PN4351
Those are two different concepts, Mr Hayes. Had any employee at the Merriman meeting, or at Mr Pope's meeting, conceded a reduction in working hours?---"Employers represented at that table" were the comments I made, and I specifically chose those words carefully at that forum.
**** WESLEY HAYES XXN MS MacLEAN
PN4352
Yes, and the answer is?---Yes, they had.
PN4353
Yes, they had. All right. SPI hadn't conceded that claim, had they?---By that stage, no.
PN4354
Had they at any stage?---Well, no.
PN4355
No?---No, but we were talking with them, we - - -
PN4356
Otherwise we can all pack up and go home?---Well, I hope SPI don't. It sounds as though they have, but at that stage certainly no, they hadn't.
PN4357
And you said earlier that you had had half a dozen meetings with some employers and you didn't want to take other than a conservative position- - -?---Yes.
PN4358
- - - at that particular time. That wasn't the case with SPI PowerNet though, was it? You had many more than half a dozen meetings with them and in fact there had been a proposal - there has been - I withdraw that. There have been numerous discussions about the 36 hour week claim, hadn't there?---There had certainly been discussions and there had been the talk about the start/finish times and the - - -
[2.33pm]
PN4359
And the company had made it plain to you, hadn't they, and the negotiating team that they required significant trade-offs, financial saving trade-offs, before the 36 hour claim would be conceded?---They talked about cost being an issue on the 36 hour week, and they put forward some issues that they wanted addressed if they were going to concede a 36 hour week.
**** WESLEY HAYES XXN MS MacLEAN
PN4360
And had the unions conceded any of those issues raised by the company?---The start/finish times, that is - we go back to that meeting on the 30th where that was up to five times a year. I am informed now out of that meeting that they were close, and then it turned out they weren't close. Dressed and ready in the switch yard at 7.35 was an initiative that came out of the unions to try and sort those issues out. The radial allowance on 17 Feb: the company wanted to withdraw that so the unions responded with what they saw as a cost value attached to that consistent with what had happened out of the SEC, for costing that is. I can't think of any other issues.
PN4361
But the position is, isn't it, though, Mr Hayes, that by 9 February, for whatever reason and whatever misunderstandings may have taken place on both sides, the parties had not been in a position to progress the 36 hour claim any more?---No. You can't be that close in one meeting and then be miles apart at the next unless, you know, either one party or both parties have dramatically got it wrong, you know. If you are close, you just keep on chipping away and you get there again. I mean, it is - you don't - you can't suggest that you can be so close and yet so far apart. Something must have gone wrong somewhere. I mean, you just keep chipping away if you are that close and work on where you thought you were - you had the same opinion.
PN4362
The company's proposals, as you know, Mr Hayes, were put forward in an endeavour to see the colour of the unions' money, if you like, on the question of trade-offs. Do you disagree with the proposition that the trade-offs put forward by the company were rejected uniformally by the unions?---Sorry, which - that the - - -
PN4363
The 30 January trade-offs that were put forward by the company: were any of those agreed to in principle or even in part by the unions?---I honestly thought we weren't far apart on the start/finish times up to five times a year; that is the feedback I received. The switch - dressed and ready to switch at 7.35, I thought there was scope there to get agreement on that. The radial allowance: I suppose like any employer if they want to take away an existing condition, there is a price attached to it and a price - and a proposal was put to the company on the 17th so I am not quite sure - - -
**** WESLEY HAYES XXN MS MacLEAN
PN4364
What about the 10 day fortnight, where were you getting to on that?---Yes, well, I am not quite sure how the 10 day fortnight got introduced into it. I think, because I missed the 30th, I am not quite sure if it was raised there and it was just thrown in the mix on the 9th on the - - -
PN4365
Mr Drew told us earlier, Mr Hayes, and I think you heard him that it has been the company's requirement from day one that it - before it concedes the 36 hour claim that the 10 day fortnight is a requirement - - -?---Yes. No, I apologise. I was getting confused with up to 10 days a year on that other proposal.
PN4366
I see?---Sorry. Yes, no you are right, the 10 day fortnight has been there from day one, yes.
PN4367
Yes, and that hasn't been agreed to by the unions?---No.
PN4368
No. No proposal from the unions as to how that might be chipped away at, as you put it?---No, there has been discussion around certainly the company talking about peak periods on non-peak periods in the way they operate or access their assets. If you get into real detailed discussion around all that, I mean, maybe a 10 day fortnight might bring itself in the mix. I mean, it is one of those - one of those issues that you have got to throw everything in the melting pot and see what you can come out of it. I mean, it is hard to just sort of completely - completely rule that out as a single issue.
PN4369
Okay. Now, you were asked a few questions about the contractors, the position of the contractors' clause?---Yes.
PN4370
I must say I was a little bit confused by the end of that. Could you clarify the unions' position as of now in respect of the contractors' clause at SPI?---At current negotiation or what is agreed or what we are claiming?
**** WESLEY HAYES XXN MS MacLEAN
PN4371
Right now. What is your claim?---Agreed - contractors can be engaged by the company so long as there is agreement with the union.
PN4372
Yes, and that applies to any contractor that the company may engage?---No, it applies - that the contractors would be engaged in what we would call the call work that our members do at the moment because it is a - the use of contractors, either directly or indirectly, is a job security issue. And Jim's Mowing do not undermine the job security of a line worker or a fitter.
PN4373
Well, probably not until we have Jim' Line Worker or Jim's Fitting which - - -
PN4374
MR BORENSTEIN: You are making a speech, are you?
PN4375
MS MacLEAN: No. What I - - -
PN4376
THE COMMISSIONER: That wouldn't be one of the trade-offs, is it, Ms MacLean?
PN4377
MS MacLEAN: No, they seem - Jim's is taking over everything, Commissioner. It will be Jim's Barristers next. The position, as I understood it - - -
PN4378
THE COMMISSIONER: Ms MacLean, just before you go on. The issue about the contractors, there does seem to be from the company point of view an understanding on their side that the unions were talking about all contractors, including the Jim's Mowing and the rose pruner and the rest of it, having to be the subject of an agreement with the unions?---Yes.
**** WESLEY HAYES XXN MS MacLEAN
PN4379
And you are saying, Mr Hayes, that that was never the intention?---No, never. And it is - I have never - I have never said to a company: we want each and every contractor that you engage to be covered under this arrangement. If that was the case, we would be getting into catering areas and - I mean, I don't - I just honestly don't know how many contractors the company use. They might be using window cleaners. I mean, we have never in any agreement we have negotiated into had that sort of focus on that clause.
PN4380
MS MacLEAN: Mr Hayes, you said that the scope of the clause can cover anyone and everyone. You recollect you saying that, do you; you said that earlier in your evidence in-chief?---I may have, yes. I don't - yes.
PN4381
Yes, and then you said that the position would be that the company would need to approach you on a case by case basis and seek agreement in respect of an engagement of a particular contractor. And if you thought they fell within the core business, well, then you would presumably have some discussions and, if you thought they didn't, then it wouldn't be a matter of concern to you. Is that how you envisage this clause would operate?---No. If there is any clause that has a right of veto in it, which is what has been suggested by the company, there is normally an agreed list attached to it. And that agreed list is the pool. And the company can utilise that pool at any given time they want to. And if I thought a clause like that was going to involve them ringing me up on a day by day basis, I would be running a million miles away from it because I don't want that responsibility. Certainly there has got to be a pool of contractors where everyone is comfortable with. If the dialogue is going to occur at an enterprise level, it should be occurring between employees and the company. In this case it would be our shop stewards. And there is an agreed list at the moment so we are not - we don't want to, you know, reinvent the wheel with contractors. We want to tighten up the agreement making process on how it works.
**** WESLEY HAYES XXN MS MacLEAN
PN4382
Sorry, if I can just go back to the question I asked you a moment ago, Mr Hayes. What is the unions' position in respect of the contractor issue now; you wish to retain a right of veto, do you not?---We want a process which requires the agreement of the union before the company engages a contractor. Once they engage the contractor, they can put it on an agreed list so long as we have agreed with it, and they can utilise that contractor as often as they like once it is on the agreed list. There has been discussion about meeting at six monthly intervals to just review the list or - I don't care if it is three monthly or anything like that but - - -
PN4383
And that would mean, would it not, that if they did want to engage Jim's Mowing, they would have to ring you up and ask you?---No, because you can put in the clause: this does not apply to building services, water, gas, anything like that which gives them the exemption. That is an easy fix.
PN4384
And you have put that form of words forward, have you, at the SBU meeting?---We have told them, we have told them we are not interested in covering Jim's Mowing, Jill's Catering and - if I mention Jim's Mowing again, anyone that is not involved in the core activities that threatens the job security of our employees - our members.
PN4385
What steps have you taken, Mr Hayes, or Mr Georgiou or Mr Rizzo to put that in a form of words to allay the concerns of the company?---I have told it verbally to the company. They have been told it lots of times about that. I am sure the company has - there is contractors on the current list which don't look like catering contractors or window cleaners to me, so I am assuming - we haven't certainly said to them we want to extend the scope of our coverage to pick up these people now. We have certainly wanted to tighten up the process making arrangement but - and when they have talked about who it covers, we have given - we have said to them: not interested in those people. Say it again today: not interested in that type of people.
**** WESLEY HAYES XXN MS MacLEAN
PN4386
That might apply to the Jim's Mowing and the Jill's Catering, but the tree clearers seem to be a question of how large the company was. So again you have to make some valued judgment, will you, as to whether permission will be given or not?---We did say that tree clearers/vegetation control that is - they are commonly used as well, we do have members in there and they do do work which is what we would call work in our industry. The company did say, but there might be one or two people up in Mildura, or another town was mentioned, and I did say to the company I am prepared to look at that in all the circumstances so long as the principles of our agreement is reached. And I mean it is one person chopping a branch in Mildura, with all due respect, is not - is not where our cause was designed to target, I suppose.
PN4387
So ultimately, Mr Hayes, you envisage it would come down to you having - or a representative of your organisation having the final say over whether a contractor would be engaged or not?---I would hope - if it is a right of veto, if the company approaches us with the contractor and says, I want to use Skill Power, we would say, yes, no problems. I might say there is no problems, and my shop stewards might say, well, we have worked with them in the past and we have got occ health safety concerns or something. It might be a two way street. I mean, I would always ask my members, have you had any problems with that particular contractor in the past as well. I need that dialogue. I require that dialogue.
PN4388
THE COMMISSIONER: Is this one of the matters, Mr Hayes, that - it was either yourself or Mr Georgiou mentioned that if the disputes provision in the enterprise agreement allowed matters to come to the Commission in the ultimate - and one hopes this would never come to that - but in the ultimate if there was a disagreement between the company and the unions about the ticking off of the contractor, it could come to the Commission?---I don't recall getting into too much debate about what role the Commission played in the process with the company at that level.
PN4389
No, I am just talking about this point about the disputes procedure though?---Yes.
**** WESLEY HAYES XXN MS MacLEAN
PN4390
We were talking earlier, and I think it was a disputes procedure over - - -
PN4391
MS MacLEAN: Introduction of change, Commissioner.
PN4392
THE COMMISSIONER: - - - introduction of change?---Right.
PN4393
But Mr Georgiou was saying, well, we want a disputes procedure at the end of the day that says: if anything in this agreement is not resolved between the company and the unions, having gone through the processes - - -?---Yes.
PN4394
- - - it can go to the Commission?---I think the company can do that anyway. I think the company can do that anyway. In - where we have agreements in other companies, not necessarily in this industry either, where there is an agreed list process, there is certainly ability for parties to go to the Commission if you can't get agreement. BHP comes to mind, not that I want to use that as the ideal example but - given the blues we have had with them, that is - - -
PN4395
MS MacLEAN: Thank you, Commissioner, are you - - -
PN4396
THE COMMISSIONER: Yes, thanks, Ms MacLean.
PN4397
MS MacLEAN: Now, Mr Hayes, if I can just finally take you to the last meeting that the unions had with SPI PowerNet which was on 27 February. Do you recall being asked some questions by Mr Borenstein about that meeting?---Yes.
PN4398
Now, you were telling us that there was a statement made by you presumably to Mr Drew and others about a balancing of claims and trade-offs and matters of that kind. Do you recollect that; you didn't need to be Einstein was one of the - - -?---Mm.
**** WESLEY HAYES XXN MS MacLEAN
PN4399
Could you explain to the Commission, Mr Hayes, what it was that you said at that meeting in relation to trade-offs?---It was my - my reading of that meeting that two issues were being discussed. One was the 36 hour week and the costs attached to it, which had been indicated to us; there was no debate about that. And the other issue outstanding was the quantum or the wages. And because our wage claim at that point in time, for memory, we might have been still at 7 per cent or 6 per cent, I said to the company: you don't have to be Einstein to work out if one issue outstanding is cost and the other issue outstanding is wages and you want to pay for something, well, do the maths together, I am not telling you how to negotiate but two and two - and that is where I - I was trying to induce the company into saying, well, if you want a 36, instead of 7 per cent you can have three or four.
PN4400
THE COMMISSIONER: Or two.
PN4401
MS MacLEAN: Was that an offer that you made, Mr Hayes?---I didn't make a direct offer. I was trying to get - I was trying to get the two jigsaw pieces together in there, in the company's head and get them to bring it together. Negotiating I did make that point.
[2.48pm]
PN4402
So the position that you were putting to the company, you say, on 27 February, was that you would be prepared to entertain some reduced pay increase for the introduction of the 36-hour week. Is that what you are telling the Commission?---I said to the company, and just said it again, there are two issues outstanding. One is cost, one is the shorter working hours, 36-hour week. We have both got issues outstanding. You don't have to be Einstein to work out how you could perhaps progress those issues.
PN4403
Pardon me, Mr Hayes, if I am not being Einstein at the moment; were you making a suggestion to the company which you expected them to take up that you were putting on the table the potential for a reduction in a wage increase for your members to secure the 36-hour week?---I was trying to move the issues forward that were understanding, if you want to play one off against the other, and - interpret it how it was, but that is what I said at that meeting.
**** WESLEY HAYES XXN MS MacLEAN
PN4404
And you would be prepared, would you, or were you at that time, to entertain such a trade-off; reduced wages for the 36-hour week, wage increase, should I say?---Without - I am just mindful, I don't want to get into the negotiations in the witness box, but - - -
PN4405
No, no, that is then. What was your position then when you were doing the balancing and being Einstein or not?---I wasn't Einstein, I was trying to get them to work out the formula of whatever it was. That was my position, that these issues are outstanding, just put the two together. I can't make it any more clearer than - - -
PN4406
Did you tell Mr Borenstein about your proposal for the - well, discussion of a wage increase - - -
PN4407
MR BORENSTEIN: Well, how does this question - - -
PN4408
MS MacLEAN: We want to know why it wasn't put to Mr Drew.
PN4409
MR BORENSTEIN: You can't ask him about discussions he has with me.
PN4410
THE COMMISSIONER: Yes. I would have thought that is going beyond what you can do, Ms MacLean.
PN4411
MS MacLEAN: We will take that up. I withdraw that. Mr Hayes - - -
PN4412
THE COMMISSIONER: But it does sound as though Mr Hayes was making a suggestion to the company.
PN4413
MS MacLEAN: Yes. Perhaps I will ask that, I will ask a different question.
**** WESLEY HAYES XXN MS MacLEAN
PN4414
MR BORENSTEIN: It wasn't put to our witness.
PN4415
MS MacLEAN: Mr Hayes, you have heard Mr Drew give evidence in the course of these proceedings, haven't you?---Yes.
PN4416
Yes. Did he at any time to your recollection respond to your suggestion that there be some looking at a reduced wage increase for the 36-hour week claim to be progressed?---He certainly didn't respond at what I had put in any manner that suggested to me they wanted to explore that further. I think the impression I got that they were - their mind was set on the fact that they were going to try and sort it out up here, to be honest. That is how I read that meeting.
PN4417
And how did you form that impression, Mr Hayes?---He went on to the personal attack.
PN4418
On you?---No, on Mr Georgiou.
PN4419
Yes. I want to take you back, Mr Hayes, to this proposal or this suggestion that you were floating. Did Mr Drew say anything about that at the time?---The Einstein theory?
PN4420
Yes, that one?---No, I don't recall him responding that was in a way which I sort of thought, well, let us talk about this issue further.
PN4421
And you have seen the minutes or the notes if I could call them that of the meeting of 27 February? They were produced, I think, last Thursday?---I am not sure I recall exactly. Is this 15?
PN4422
THE COMMISSIONER: This is SPI14, 14, I think, is it?
**** WESLEY HAYES XXN MS MacLEAN
PN4423
MS MacLEAN: That is 14?---14.
PN4424
THE COMMISSIONER: A single page?---Yes, yes.
PN4425
MS MacLEAN: Yes. Anywhere in there mention this idea that you floated?---No, it doesn't.
PN4426
No? Did Mr Drew mention it in his witness statement that you can recollect?---No.
PN4427
You mention it in your witness statement?---No.
PN4428
No.
PN4429
THE COMMISSIONER: Sorry, Ms MacLean, what was it - what were you asking about being mentioned?
PN4430
MS MacLEAN: The proposal about the trade-off perhaps between a wage rise, Commissioner.
PN4431
THE COMMISSIONER: I see. Yes, thank you.
PN4432
MS MacLEAN: Now, just finally, Mr Hayes, you were asked a question about, during the course of this 27 February meeting, that Mr Drew said something like there was no purpose in telling the unions what trade-offs the company required because the unions knew them. Do you remember that being said?---I remember him saying it in this box, yes.
**** WESLEY HAYES XXN MS MacLEAN
PN4433
MS MacLEAN: Yes. And you were then asked whether you knew all the trade-offs, and you said you didn't know all of them?---No.
PN4434
Did you know most of them?---I knew of, specifically in relation to 36, I knew of the issue about the start finish times and the radial allowance and the 10 times a year was thrown in the mix, and our suggestion being the one about dressed and ready in the switch yard.
PN4435
And the 10 day fortnight, I think we dealt with that?---Yes, yes.
PN4436
Yes?---Yes.
PN4437
So you had a fair idea of the range of things the company was looking at, in terms of trade-offs?---On those issues - - -
PN4438
On 36, yes?---We are aware of those issues, yes.
PN4439
And none of those claims by the company, if I can call them that, had been agreed to by the unions, had they?---No, the radial allowance we had put a counter offer to the company's proposal to get rid of it, the start and finished in the switch yard was our proposition, to try and offset costs, and the issue of up to five times a year, we thought we had had agreement on and then it turns out that there was no agreement on.
PN4440
So the proposition I have just put to you that there had been no agreement reached on any of those issues is the company's - the company saw them as trade-offs, is right, isn't it?---Well, I thought we had agreement - I mean, dressed and ready in the switch yard, I have never heard the company say that they would reject it. I think Mr Drew said, at one stage, it was minute but I don't think the company have ever said they rejected it. They rejected our counter offer on the radial allowance, and we had made significant progress and I thought we were close to revving on up to five times a year, and the company extended that to include unlimited times a year or words something to that - - -
**** WESLEY HAYES XXN MS MacLEAN
PN4441
And the unions had given serious consideration, had they, and retained on the table the proposal of the company that start at 4 or start between 4 and 6 would be at ordinary time, not at overtime rates?---There was detailed discussion with the union on that, yes.
PN4442
And it was rejected by the union, wasn't it? You wanted that paid at overtime rates?---If that was the current arrangement at overtime we would have seen that the current arrangement continue, yes.
PN4443
Thanks, Mr Hayes?---Thanks.
PN4444
MR BORENSTEIN: I have no re-examination, Commissioner, thank you.
PN4445
PN4446
PN4447
MR BORENSTEIN: Mr Rizzo, is your full name Michael Rizzo?---Yes.
PN4448
And is your address, 116 to 124 Queensberry Street, Carlton South?---Correct.
PN4449
And are you the Assistant Branch Secretary of the ASU at the Victorian Authorities and Services Branch?---Yes.
PN4450
Thank you. For the purpose of this application, did you prepare a summary of evidence dated 16 March 2004?---Yes.
PN4451
And have you had an opportunity recently to read that statement again?---Yes.
PN4452
Can you tell the Commission whether the contents of the statement and the opinions that you express in it are true and correct?---Yes, they are.
PN4453
PN4454
MR BORENSTEIN: Now, Mr Rizzo, you have been in Court while the evidence in this matter has been led?---Yes.
PN4455
Yes. And did you hear Mr Drew give evidence on behalf of SPI PowerNet that, in his opinion, it was not possible to reach agreement in this matter with the unions?---Yes.
**** MICHAEL RIZZO XN MR BORENSTEIN
PN4456
Do you have a view about that possibility?---I have the opposite view. I believe that we can reach agreement, as we have done on a previous five occasions relating to EBAs. But, quite apart from EBAs, I have been dealing with this company for the past 11 years, and apart from the EBAs I could not tell you, Mr Borenstein, how many other agreements we have come to relating to outsourcing, contracting, downsizing, rationalisations and the like.
PN4457
It is suggested that in no previous EBA negotiation have there been an issue as significant or as costly as the 36 hour week claim that the unions have made here. Do you have a comment about that?---Yes. There have been other significant issues. The last time I recall, at the last EB meeting we spent a lot of time on the trial process that the company wanted to put into place. In fact I think that took up a lot of the time the last EB, took up a lot of discussions, a lot in meeting time, and at other times we have had discussions and negotiations around things like workforce size, for example, which again have taken up a considerable amount of time, but on all those issues and all those occasions we have reached agreement.
PN4458
You have heard Mr Drew say that in order for the company to move forward on the 36 hour claim they would require the unions to agree to various cost offsets or trade-offs, as they call them?---Yes.
PN4459
What is the position of your organisation in terms of being prepared to negotiate and perhaps agree on trade-offs and cost offsets?---As I said on a previous occasion, Mr Borenstein, my union, along with the other unions, have had to be incredibly flexible in this industry, given the enormous amount of changes that have occurred over the last 11 years that I have been involved. So no-one is foolish enough to believe that something like the 36 hour week is going to have some sort of compromise in the way its implemented or in the way its brought about, and certainly, our union and I think APESMA, as well, have also talked about not just in terms of the 36 hour week but in terms of other ways that flexible and shorter or different working hours could be instituted. And Mr Georgiou covered some of this ground, bringing back public holidays and the like. So we are always open to negotiation with this company and other companies.
**** MICHAEL RIZZO XN MR BORENSTEIN
PN4460
Thank you.
PN4461
PN4462
MR PARRY: If the Commission pleases.
PN4463
Mr Rizzo, you were at the meeting - I withdraw that. Were you at the meeting at the end of January where certain proposals were discussed by the company in respect of the 36 hour week?---Was that on 30 January?
PN4464
Yes?---Yes, I was.
PN4465
Right. And did you receive the e-mail a couple of days later from the company setting out their sort of understanding of what had gone on at that meeting?---I don't recall actually receiving the e-mail but I have certainly seen that e-mail, yes.
PN4466
You don't recall receiving it?---No, not specifically. I don't recall actually getting it and printing it off.
PN4467
Did you keep any other record of the meeting on 30 January?---No.
PN4468
Right. So the only record in these proceedings, that we are going to see of that meeting, is that produced by the company, isn't it?---Well, apart what I know is in my own memory.
PN4469
That is not a record, a written record?---No, it is not a written record, Mr Parry, but it is my record, yes.
**** MICHAEL RIZZO XXN MR PARRY
PN4470
I see. Well, you called a meeting, I think, on 29 January. Your union put around a newsletter which said it was calling a meeting on 4 January. Do you remember that?---4 February.
PN4471
4 February, yes. And I think I have taken this to you before about negotiations being stalled?---Yes, we have traversed this territory before, yes.
PN4472
And you were accepting, I think, last time we traversed this territory, that by 29 January you were prepared and happy to tell your members that negotiations were stalled?---Yes.
PN4473
And of the significant issues on which they were stalled was the matter of hours?---That was one among a number yes.
[3.03pm]
PN4474
Right, now, you attended this meeting on 30 February - I am sorry, 30 January the day after - or a day or so after your letter and there was discussions regarding the 36 hour week. Was it your position that these discussions were significant or not?---Around the 36 hour week?
PN4475
Yes?---Yes, they were.
PN4476
You see, you were in the Commission recently when Mr Hayes said that his report at around that time was that no significant progress had been made with regard to the 36 hour week. Do you remember Mr Hayes giving that evidence about 10 minutes ago?---With Powernet?
PN4477
Yes, with SPI Powernet?---I think he may have said that.
PN4478
Do you agree or disagree?---I thought we had made some progress actually on the meeting on 30 January.
**** MICHAEL RIZZO XXN MR PARRY
PN4479
You thought you had made progress?---Yes.
PN4480
You thought that what the company had put up was worthy of consideration?---Yes.
PN4481
And might lead to some further negotiations?---Yes.
PN4482
Why did you - what happened on 4 February then? Did you tell the members this?---SPI Powernet is not the only company that we are negotiating with at the moment, Mr Parry and the 36 hour week is not the issue - not the only issue that we have - or we had at the time with this company or other companies.
PN4483
Yes, did you tell the members that, insofar as SPI Powernet were concerned, the negotiations weren't stalled?---No, I did not tell them that because they were stalled in a number of other areas and the information or the detail on the 36 hour, yet, had to fleshed out.
PN4484
I see, so what had been put to you on 30 January was, at best, preliminary and needed significant fleshing out?---It needed some fleshing out, yes.
PN4485
Right, because what happened on 4 February was that your members voted - I withdraw that. There was recommendations made about taking industrial action, wasn't there?---Yes.
PN4486
That was across all sectors, across all the employers?---Yes.
PN4487
And certainly there was no thought that SPI Powernet might be exempted from that industrial action?---No, because the state of negotiations of the various companies, as has been said, we were at varying levels. And despite the fact that we had, I thought, made some progress with the 36 hour week with Powernet on that particular day, there was still issues to be determined at Powernet as they were elsewhere.
**** MICHAEL RIZZO XXN MR PARRY
PN4488
Well, presumably, the issues to be determined with the 36 hours was still significant issues as far as the ASU were concerned?---That were yet to be determined?
PN4489
Yes?---Yes, there were still some issues that had to be determined, yes.
PN4490
Right, so if we could summarise the position as of 4 February then, as against SPI Powernet, there were a number of claims that were unresolved and with regard to the 36 hour week there were still significant issues between you?---There was issues between us outside of the 36 hour week and there was issues between us inside of the issue of the 36 hour week but we felt that on 30 January the proposal that we had discussed - we had made some progress, yes.
PN4491
You didn't attend the meeting, as I understand it - sorry, did you attend the meeting on 9 February 2004?---I believe I did, yes.
PN4492
At that stage any issue of there being agreement or progress went out the door, didn't it?---I am not sure that it went out the door. There was - it had come to the union's attention over the preceding nine-odd days that, contrary to our belief that we thought that this issue of the 4 am start was confined to up to five days a week, it came to light over the course of those 10 days, as I say, that all of a sudden it had become an unlimited number of days that could be worked and that was not our understanding on 30 January.
PN4493
I see?---And when we sought to clarify that with the company they did confirm that this was on an unlimited basis and we said that is not our understanding that we had a week ago. And they said that it was, we said that it wasn't and I think it is fair to say that we thought the company had changed its mind or shifted its position, but it was certainly contrary to what we understood about 10 days earlier.
PN4494
You agree - you would then agree with Mr Drew that the negotiations were going backwards at that time, weren't they?---No, I don't.
**** MICHAEL RIZZO XXN MR PARRY
PN4495
You don't agree with that?---No.
PN4496
So, notwithstanding the fact, that no-one agreed on what had been put in the past and there was no agreement on the way forward and any position that each party had on the table had been taken off, you thought there was still progress being made?---Mr Parry, you keep concentrating on the 36 hour week. The negotiations are much more than the 36 hour week.
PN4497
Sorry, is that the answer to the question I put, is it? Is that your comment on my proposition?---What was your proposition?
PN4498
I was putting to you that you would agree with Mr Drew that there was - the negotiations were going backwards?---I disagree with that.
PN4499
And you disagree?---Yes.
PN4500
I see. Now, after that meeting on 9 February to date, it has been the consistent position of SPI Powernet that it does not want a 36 hour week?---I am not sure that they have actually said that. I think they have opposed the 36 hour week and I think - - -
PN4501
I am sorry, I didn't catch that last bit?---I think they have said that they oppose the 36 hour week and they oppose it particularly if there is no - I think the terminology is, offsets, with a 36 hour week. But I am not sure that they have actually said that they will never entertain a 36 hour week.
PN4502
I see and you have been at the meeting with Mr Pope, were you?---Yes.
PN4503
And it was a pretty clear position enunciated by the unions at that meeting that there would be no trade-offs?---I didn't say that, Mr Parry, but - - -
**** MICHAEL RIZZO XXN MR PARRY
PN4504
Who was speaking for your union then?---I was.
PN4505
I see, did you say anything?---Yes, in fact I opened that meeting - not with Mr Pope, but the meeting with Mr Merriman, I opened that meeting and put the union's position. But I don't recall saying anything about that there is no off-sets or trade-offs or whatever terminology you want to use on the 36 hour week.
PN4506
Right. You heard Mr Hayes used the term, presumably?---To be honest with you I don't particularly, or specifically, recall Mr Hayes saying that.
PN4507
THE COMMISSIONER: That is the no trade-off comment, you are saying, Mr - - -?---Yes, Commissioner. There has been impression now in my mind that, obviously, someone said something along that effect. I don't specifically recall who said it. I don't doubt that something to that effect may have been said because, obviously, we were taking a public position about what our position on the 36 hour week was. But I can say to you that I have never personally said that there would be no trade-offs or offsets on the 36 hour week.
PN4508
MR PARRY: I see. Now, this - if I could hand to you a news brief dated 27 February 2004, a reference document under the ASU energy workers for you to all ASU members at SPI Powernet, AGL, Agility, TXU, Powercorp, Citipower and United Energy; Alinta. If I could just hand this to the witness, Commissioner. I am not sure I have a spare copy of it, it is a document that has been tendered in the other proceedings.
PN4509
THE COMMISSIONER: Yes.
PN4510
MR PARRY: And I just wanted to confirm with Mr Rizzo that on the second page when he says:
**** MICHAEL RIZZO XXN MR PARRY
PN4511
Contrary to popular opinion these negotiations are not just about the 36 hour week. This is one amongst many important claims.
PN4512
Can we accept at this point you are comfortable telling your members on 27 February 2004 that the 36 hours was still an important claim?---Yes.
PN4513
The union - your union has never resiled from wanting to introduce a 36 hour week, has it?---No, but we have said that we would want to see its implementation in various guises, as I have explained before.
PN4514
And your letter - this news brief also refers to other important claims including no compulsory departure and, again, you saw that as an important claim as of 27 February?---Yes, still do.
PN4515
Still an important claim?---Yes.
PN4516
And the 36 hour week, still an important claim?---It is still an important claim, yes,.
PN4517
Yes, protection of worker entitlements, you saw that as an important claim then?---Yes.
PN4518
Continues to be the case?---As has already been discussed I think the unions have come to a comfortable view on that about the credit rating.
PN4519
So it is not so much an important claim any more?---As far as we are concerned that is pretty much put to bed now.
PN4520
All right. Limiting contractors, important claim then?---Yes.
**** MICHAEL RIZZO XXN MR PARRY
PN4521
Still an important claim?---Yes, it is.
PN4522
What is limiting contractors? What do you mean by that?---Well, I suppose it is a shorthand way of saying that we want some limitation. We don't want, you know, a carte blanc on contractors coming into the industry. We want to have some say and some input into the use of contractors in the industry.
PN4523
It is still an important claim as far as you are concerned?---Yes, it is.
PN4524
Right. Pay increase, still important?---Of course, yes.
PN4525
PN4526
MR BORENSTEIN: I wonder if the Commission could make some copies of that please.
PN4527
THE COMMISSIONER: Yes, of course.
PN4528
MR BORENSTEIN: Thank you.
PN4529
THE COMMISSIONER: I need to get a copy myself at some stage.
PN4530
MR PARRY: Yes, I have nothing further, if the Commission pleases.
PN4531
THE COMMISSIONER: Pardon?
**** MICHAEL RIZZO XXN MR PARRY
PN4532
MR PARRY: I have nothing further, if the Commission pleases.
PN4533
THE COMMISSIONER: Thank you, Mr Parry. We will just get some copies made of that document, Mr Borenstein.
PN4534
MR BORENSTEIN: It doesn't have to delay Mr Rizzo's evidence. I have nothing to ask by way of re-examination.
PN4535
PN4536
THE COMMISSIONER: We will get some copies made of that anyhow.
PN4537
MR BORENSTEIN: That is all of the evidence that it is proposed to lead on behalf of the unions in this matter, Commissioner.
PN4538
THE COMMISSIONER: Good.
PN4539
MR BORENSTEIN: There was another witness statement but - - -
PN4540
THE COMMISSIONER: Yes.
PN4541
MR BORENSTEIN: - - - we don't propose to call that witness.
PN4542
THE COMMISSIONER: Are you not following up with Mr Delany?
PN4543
MR BORENSTEIN: No.
PN4544
THE COMMISSIONER: Good.
PN4545
MR BORENSTEIN: Before we move on to the next matter can I raise a logistical question. It looks as though we will complete the evidence in the TXU matter without a great deal of difficulty between the rest of today and tomorrow.
PN4546
THE COMMISSIONER: Yes.
PN4547
MR BORENSTEIN: I have been having some discussions with Ms MacLean about what the Commission might have in mind in terms of submissions and when they may be made. I would imagine we would probably take up, probably, all of the morning tomorrow and perhaps go into the afternoon a little bit. But we wouldn't have any real chance of looking at today's transcript, or certainly, tomorrow's transcript to assist you with submissions.
PN4548
THE COMMISSIONER: Yes.
PN4549
MR BORENSTEIN: We are obviously in the Commission's hands, but if there were a way that it was possible for us to have some time to look at the transcript, then we think that the submissions we make might be more helpful to you.
PN4550
THE COMMISSIONER: Yes, all right, well, I would prefer that, Mr Borenstein because it is a very important matter that is before the Commission. It is important to both the companies and to the organisations that you are representing.
PN4551
MR BORENSTEIN: Yes.
PN4552
THE COMMISSIONER: I think it would be far preferable for everybody if we had transcript available before final submissions. Now, if that was the case and recognising that we won't have transcript of today by - in time for submissions tomorrow, what does that mean in terms of timetable?
PN4553
MR BORENSTEIN: Well, I am really in the Commission's hands. I mean, we have already said we are available on Wednesday but we understand neither Mr Parry nor Ms MacLean is available on Wednesday. Beyond that, Mr Parry and I have a mutual commitment next week on the 7th but apart - I don't know what Mr Parry's position is apart from that next week.
PN4554
THE COMMISSIONER: I have a Full Bench on the 7th and 8th anyhow. Possibly, the 8th could be vacant.
PN4555
MR BORENSTEIN: Well, what about the 9th?
PN4556
THE COMMISSIONER: The 9th is Good Friday.
PN4557
MR BORENSTEIN: Well, that sounds like a good day.
PN4558
MS MacLEAN: What about earlier in the week, the 6th or - - -
PN4559
THE COMMISSIONER: I do have matters on Monday and Tuesday but if it really came to that I could do - I have got one matter on Monday which has already been postponed on, at least, one occasion and I think to do with this matter actually and it involves the Transport Workers Union. Then on Tuesday I have four matters on so it is somewhat difficult but - and then, unfortunately, in the week after Easter I am meant to go on a Full Bench in Adelaide. However, I could certainly try and get off that and make that week commencing the, what is in fact, effectively Easter Monday on the 12th available.
PN4560
MR BORENSTEIN: That is Easter Monday.
PN4561
THE COMMISSIONER: And we could possibly deal with this matter on the Tuesday or - - -
PN4562
MR BORENSTEIN: It wouldn't take beyond a day and it probably would take - - -
PN4563
THE COMMISSIONER: Yes.
PN4564
MR BORENSTEIN: - - - less than a day.
PN4565
THE COMMISSIONER: Yes, it is just a matter of finding a day, isn't it?
PN4566
MR BORENSTEIN: Yes, that is right.
PN4567
[3.18pm]
PN4568
MR PARRY: We do oppose after Easter, I indicate. We have - these days were set a few days ago on the basis that we would move through the evidence and then make submissions. And we all understand that that involves preparation on the way through and preparing submissions, and being prepared to present those at the completion of the evidence, as appears - as is the practice in many other courts and tribunals. Now, we have been proceeding on that basis. We would hopefully finish the evidence tomorrow morning, and we have been preparing, hopefully something in writing as best we can.
PN4569
Now we don't - so we are prepared to continue. But if you were to put it off, then we would be suggesting that parties put in what they want as best they can in writing by the end of this week, and then we have a couple of hours next week. At some time - - -
PN4570
THE COMMISSIONER: What if I set aside Monday afternoon of next week, the 5th?
PN4571
MR PARRY: We are happy with that.
PN4572
MR BORENSTEIN: I am happy with that too, yes.
PN4573
THE COMMISSIONER: And I will start the TWU matter. It is possible it may be finished by lunch time. I suspect not. But in any case we will - well maybe we can set aside the morning, because at the moment, because we have a Western Australian intervener coming in by video conference, we are starting it at 11.00. So we could put that Western Australian matter back until 2.00, and then have Monday morning for this matter.
PN4574
MR BORENSTEIN: Yes, we could start at nine o'clock.
PN4575
THE COMMISSIONER: Starting at nine o'clock, or 9.15, my Associate keeps telling me not to start at nine.
PN4576
MR PARRY: Yes, well, we have no - we will accommodate that.
PN4577
THE COMMISSIONER: Well, we will make it - we will finish up on Monday morning of next week.
PN4578
MR BORENSTEIN: Excellent, thank you.
PN4579
THE COMMISSIONER: Good. So are we moving onto TXU now?
PN4580
MR PARRY: Yes, there is just a changing of the guard.
PN4581
THE COMMISSIONER: Yes. Do you want to have a 10 minute adjournment?
PN4582
MR PARRY: As the Commission pleases.
PN4583
THE COMMISSIONER: Good.
SHORT ADJOURNMENT [3.22pm]
RESUMED [3.33pm]
PN4584
THE COMMISSIONER: Mr Parry.
PN4585
PN4586
MR PARRY: If the Commission pleases.
PN4587
What is your full name, Mr McTaggart?---Graeme McTaggart.
PN4588
And your address?---535 McDonald's Road, South Morang.
PN4589
And where are you employed?---TXU Customer Services, which is a business unit of TXU Australia Services Pty Limited.
PN4590
How long have you held that position for?---For the last six years.
PN4591
And where were you employed before that?---I was employed originally with the SECV. Left there and was employed by - in a consultancy firm, and local government. And then returned to the electricity industry six years ago.
PN4592
Could you describe the operations of TXU to the Commission?---TXU is a retail distribution company that covers the full spectrum of the supply of electricity in this instance, but not - also gas, poles and wires, for the electricity, underground pipes for gas, as well as a retail business dealing directly with the customers, and with marketing of the product.
PN4593
How many employees does it have?---Currently about 1800 across the business.
PN4594
And where are they based?---A number of locations. Two locations in the city. Two locations in South Morang, and depots across Eastern Victoria from Wodonga down through Sale.
PN4595
Have you prepared a statement for these proceedings, Mr McTaggart?---Yes, I have.
**** GRAEME McTAGGART XN MR PARRY
PN4596
Do you have a copy of that before you?---Yes, I do.
PN4597
If I could take you to paragraph 9, this refers to negotiations for a new enterprise agreement commencing, and then various dates being set out for meetings. Is the reference - what do you say about the reference to 6 February 2004?---The 6 February was a planned meeting, but it was cancelled by the company, and did not proceed until the 12th.
PN4598
Was it re-scheduled to the 12 February?---It was re-scheduled to the 12th.
PN4599
THE COMMISSIONER: So do you prefer the 6th becomes 12, Mr Parry?
PN4600
MR PARRY: Yes, if the Commission pleases.
PN4601
In paragraph 17, you refer to a meeting at which former Commissioner Merriman was at, and you say in the fourth line:
PN4602
APESMA had a representative present at the meeting.
PN4603
Is that the position?---No, it is not, no.
PN4604
So the reference to APESMA, should be deleted?---Correct.
PN4605
Now, subject to those amendments, are the contents of that statement true and correct?---Yes, they are.
PN4606
**** GRAEME McTAGGART XN MR PARRY
PN4607
MR PARRY: Now, Commissioner, there has been filed a number of documents, some of which are headed, TXU Employee Relations Update. And so I propose taking the witness to those documents. The first one that I was proposing to take Mr McTaggart to was an undated document with the heading, Enterprise Bargaining Agreement Negotiations.
[3.39pm]
PN4608
THE COMMISSIONER: Mr Parry, I recall on the last occasion we had some difficulty with some of the documents that were supposed to have been filed. I have an affidavit of Michael Besselink.
PN4609
MR PARRY: Not to be relied on.
PN4610
THE COMMISSIONER: Not to be relied on - don't worry about that. I have a second affidavit of Mr McTaggart.
PN4611
MR PARRY: Only to be relied on, as I understand it, in respect of the application that the Commissioner has already heard.
PN4612
THE COMMISSIONER: Already dealt with, good. And, apart from that, I have got an outline of submissions but I don't have anything else?
PN4613
MR PARRY: Well, never a dull moment. They were sent by e-mail, I am advised. But I will provide copies as we go along.
PN4614
THE COMMISSIONER: Thank you, Mr Parry.
PN4615
MR PARRY: Now, Mr McTaggart, we have already gone to paragraph 9 of your statement with regard to meetings held; did you attend these meetings?---Yes, I did.
**** GRAEME McTAGGART XN MR PARRY
PN4616
Now, the document that I have just been referring to heading "Enterprise Bargaining Agreement Negotiations", do you have that?---Yes, I do.
PN4617
And that is an undated document. What was that document?---It was an e-mail sent out by myself to all electricity award staff, outlining where we were at with the enterprise agreement negotiations.
PN4618
About when?---October, late October.
PN4619
Now the fourth paragraph down refers to the unions log of claims. What were you provided with?---A document of about 60 items, on behalf of all unions, that outlined their position, under the heading of "Log of Claims".
PN4620
If the Commission pleases, we do propose tendering that document. As I understand it it is in the same form as the document we have tendered in other proceedings, but I will tender it in these proceedings. I don't have a copy at present but, hopefully, I will address that first thing tomorrow morning. I tender that undated document.
PN4621
MR PARRY: Now in that document there is reference to a number of people. Who is John Kelso?---John Kelso is an operational manager within our business unit tsquared.
PN4622
What is tsquared?---Tsquared is a business unit of TXU that, in round terms, looks after the construction side of our business, the poles and wires part of our business.
**** GRAEME McTAGGART XN MR PARRY
PN4623
THE COMMISSIONER: Is it actually called T2?---No, no, it is tsquared but - - -
PN4624
THE COMMISSIONER: It is tsquared?--- - - - sometimes referred to as T2.
PN4625
MR PARRY: Paul Kazmierowski?---Paul is an area manager within tsquared, who has direct control of the day to day ongoing working requirements of tsquared.
PN4626
Fiona Harbison?---Human Resources Manager of tsquared.
PN4627
And Joe Arnephy?---Joe is the Manager of Data Management Services or Data Metering Services, which is another business unit that has employees under the TXU banner.
PN4628
Now, do you have the next employee relations update, dated 27 November 2003?---Yes, I do.
PN4629
And could you tell the Commission what these TXU employee relations update - who they were circulated to?---They are circulated to all electricity award employees via the e-mail system, and posted on noticeboards and handed out at remote locations.
PN4630
In that document there is reference to meetings that have taken place and there was reference to the outright rejection by the union negotiation team of the agreement proposed by TXU, based on the existing agreement. The next item refers to, the unions have also added new items to their original log of claims. What are you referring - or what - firstly, were you involved in drafting this document?---Yes, I was.
**** GRAEME McTAGGART XN MR PARRY
PN4631
What is the reference to adding new items to the original log of claims refer to?---At a couple of meetings, this was the first, additional items were submitted by the unions that were not included in the original log of claims.
PN4632
Such as?---Glove and barrier employees who are linesmen working in the field, an extra two steps in the payroll system. Gone blank.
PN4633
Does paragraph 12 refer to this, of your statement?---Yes, that is correct, paid - extra paid meetings and the gas business, a list of parties. There are also other items listed on that document that was tabled at that meeting. I can't remember them off the top of my head, but I do have them in my notes though.
PN4634
PN4635
MR PARRY: Now if I could then move on to the next employee relations update, dated 15 January 2004. Do you have a copy of that?---Yes, I do.
PN4636
And that refers to there being, in the second paragraph, five meetings to that stage with the union negotiating team.?---That is correct.
PN4637
And what had been the progress of negotiations up until that stage, Mr McTaggart?---Look, we had worked around some of the smaller items, however, the theme on those, at all of those meetings, that there were big ticket items, and that we would address those once we got through the items that were more easily agreed to.
**** GRAEME McTAGGART XN MR PARRY
PN4638
PN4639
MR PARRY: Now the next document is dated 22 January 2004. It refers to a meetings that have taken place and it refers to "on Tuesday", so presumably that is - in the second paragraph - presumably at some time in January, probably 20 January 2004, and in the sixth paragraph it refers to:
PN4640
We approached Tuesday's meeting positively and were able to reach agreement in a number of areas. There remain, however, some significant points requiring further discussion, including clauses that relate to...
PN4641
And there is six matters set out thereunder. At what stage did those points become issues in the negotiations?---They have been on the table since day one, since our October meeting 29 October meeting. We only really got to them, as I suggested, before - after a few of the smaller items had been moved on. These ones have been on the table and are still on the table, now, for negotiation.
PN4642
Whose suggestion was it that the minor matters be dealt with first?---I think we came to a mutual agreement. It was Mr Georgiou who was leading the discussions on behalf of the union. He suggested that we deal with some of the easier items first, and we agreed with that.
PN4643
**** GRAEME McTAGGART XN MR PARRY
PN4644
MR PARRY: And if I could move to the next employee relations update, dated 29 January 2004. And at that time the meeting for 4 February with the ETU had been announced?---That is correct.
PN4645
And there is reference there to apprentices; and the fourth paragraph deals with the position of refusing to engage apprentices. Why did you form the view you needed to deal with the assertion about engaging apprentices?---It was one of the so called big ticket items on behalf of the unions, particularly the ETU, and in the press statement by the ETU it was highlighted that no-one in the industry had employed apprentices for some period of time, and we were certainly about dispelling that, that we were actually employing apprentices.
PN4646
And had apprentices been a part of the negotiations to that stage?---Yes, they had, and it was always suggested that it be the ratio of one to three.
PN4647
That was the suggestion from the unions?---That is correct.
PN4648
And what was the company response?---Once we did the numbers on one to three we found that that was highly impractical and couldn't work in our business. That is why we put together a program that will enable us to deal with apprenticeships in the proper manner, providing them with good direction and support throughout their apprenticeship, rather than huge numbers in our business that would not receive the appropriate training.
PN4649
Well when was that program developed?---It was developed by our tsquared business unit, before Christmas, and was implemented after Christmas.
PN4650
Now, after it was implemented, did apprentices remain an issue in your negotiations?---Yes, they have.
PN4651
What about at present, are they still an issue?---Yes, it is still an issue.
**** GRAEME McTAGGART XN MR PARRY
PN4652
What are the respective claims?---The respective claims are still from the union one to three. We have put forward a proposal. However, the company's position is we will not put numbers in the agreement, however, we will put a paragraph or a clause in there relating to apprentices.
PN4653
Now, to stay with the employee relations update, further down the page, I think it is the bottom paragraph, starting:
PN4654
At today's negotiation meeting we were unable to secure any movement from the unions on the critical items that we are seeking to resolve.
PN4655
Now, then there are a number of items set out, some five items, thereunder. Do you recall what occurred around the 27th, I think, the - sorry, around 29 January, with regard to negotiations on those issues?---They just came to a stalemate. The unions weren't prepared to move; we had made suggestions that the current agreement clauses would be okay, but there was no movement from the unions, whatsoever, on these items, particularly the first two.
PN4656
Perhaps do deal with the first one, the introduction of change. The unions have demanded that TXU should not merely consult them over any change to our business but be required to seek their approval. Now, is that a demand in the log or is that a demand made in the negotiations?---No, that is a demand in the log.
PN4657
And how has it been expressed in the negotiations up until that time?---That it is any change - the original sticking points in our current clause were around words "major" and "significant". There were some discussions around how we could get around that. The unions continually went back to their log of claims that, by reading my interpretation and our interpretation, by reading the clause in the log, it gives the unions veto on the introduction of any change, must be negotiated and must be agreed.
[3.54pm]
**** GRAEME McTAGGART XN MR PARRY
PN4658
Now, the next use of contractors, the unions wish to have an unrestricted power to select or reject any contractors that we use and set their terms and conditions. Is that a claim that was being pursued in the log or in the negotiations or both?---Not, both, it is in their log and has been pursued since the start of meetings in October.
PN4659
And has there been a mechanism described to you up until that time, 29 January, about selecting or rejecting contractors?---The discussions went around that the contractors must have an enterprise agreement with the relevant union. They were happy to have a list of approved contractors. We have spoken about that agreed list. The company would like to - our position is that we would have to have some right of veto on that and that reasonableness will not be withheld, however, the union have rejected that.
PN4660
Does that bring the Commission up to the present position; does it?---That is correct.
PN4661
And with regard to introduction of change, the one above it, what is the current position with regard to the position of the two parties?---There has been discussions about changing words - changing the two words to, material, and/or designated work groups. There is also - in the current clause there is right of - should we not agree to come back to the Industrial Relations Commission for a judgment on that and that has also been rejected by the unions.
PN4662
And the next item over the page is shift premiums and it refers there to unions pushing for shift premiums to be used for all purposes of the award. Is that in the log or in the negotiations or both?---Again, it is both. TXU currently pays 50 per cent of shift premiums as all purpose. The unions are seeking the additional 50 per cent to be paid or phased in over the period of the negotiations.
PN4663
So what has changed from around that time to the present with regard to that claim?---Nothing.
**** GRAEME McTAGGART XN MR PARRY
PN4664
The next one is the 36 hour week and wages. There is a reference there that the unions have submitted a claim for the introduction of a 36 hour week and there is also below that:
PN4665
We have not as a union suggested placed 36 hour week in the too hard basket.
PN4666
Why did you include that reference in there, Mr McTaggart?---Well, there had been some union notification going out to say that we had refused to look at it and it was too hard so that we were ignoring it. We were under - we were working out what it cost - and what it would cost the company to implement 36 where it would be appropriate to look at the areas that it may fit. So we were carrying out a review, so it wasn't in the too hard basket.
PN4667
And redundancies, what was the issue there?---The unions claim that in the original log that you have no compulsory redundancies in the workforce manning level clause. We thought it appropriate that the current clause which provides for other mechanisms was sufficient and that hasn't changed, that claim is still on the table.
PN4668
Now, below that there is a reference to:
PN4669
The unions have suggested that we are waiting to see what other companies will do.
PN4670
Why did you feel as though it was necessary to make that reference?---Again, it was part of the mail - the newsletter that was sent out by the unions, that we were waiting to see what others would do and then jump on the bandwagon and that wasn't correct.
**** GRAEME McTAGGART XN MR PARRY
PN4671
PN4672
MR PARRY: Now, the next one is 4 February 2004, another update. There is reference to the stopwork meetings that took place that day and the industrial action proposed?---That is correct.
PN4673
There is reference in the large paragraph, about halfway through:
PN4674
As was mentioned in our previous update at our last meeting with the unions we failed to secure any movement at all on the key issues that remained to be resolved.
PN4675
Now, why did you put that in there?---Again, it was an update to employees to outline that we hadn't been able to secure any movement.
PN4676
And there is reference then to seeking the involvement of the Australian Industrial Relations Commission. How did you do that?---We lodged a section 99 dispute about the industrial - in the Industrial Relations Commission.
PN4677
This is referred to in paragraph 19 of your statement?---That is correct.
PN4678
Now, it refers to the matter being heard by Senior Deputy President Lacy on 5 February:
PN4679
I was present at the hearing but no progress was made with respect to negotiating any of the key items.
**** GRAEME McTAGGART XN MR PARRY
PN4680
What occurred on that day before Senior Deputy President Lacy?---Mr Dixon from Baker McKenzie sought leave to appear. That leave - the decision on the leave to appear was adjourned and a decision was handed down at a later stage. We went into conference to talk about the positions of both parties and there was no - no recommendations made from that hearing.
PN4681
PN4682
MR PARRY: Now, is the next one you have, Mr McTaggart, 6 February 2004?---Yes, it is.
PN4683
And it refers to a meeting scheduled on 6 February and I think you have given evidence about this already; that meeting did not take place?---That is correct.
PN4684
Why didn't it take place?---I had a phone call at about 7 am that some work hadn't been carried out in the north of the state. There appeared to be an issue around whether employees actually did work or didn't work. We decided to cancel the meeting until an investigation was carried out as we thought we were unsure whether it was unprotected action or not. Following a full review of the information we found that there was no problems with the ETU members and we rescheduled the meeting after a number of dates were tabled on the 12th.
PN4685
And that document also refers to drafting a complete offer to put to the unions - that work being undertaken by that stage, had it?---Yes, it had.
PN4686
**** GRAEME McTAGGART XN MR PARRY
PN4687
MR PARRY: Now, if I could move to the next one, 12 February 2004. There is reference there in the first paragraph to:
PN4688
This afternoon we presented an enterprise agreement offer to the ETU, ASU and APESMA at our meeting with the union negotiating team.
PN4689
Now, Mr McTaggart, do you have a copy of a document headed, "TXU Draft, TXUA Enterprise Agreement 2004"?---Yes, I do.
PN4690
Does the Commission have a copy of that?
PN4691
THE COMMISSIONER: I do.
PN4692
MR PARRY: Is that the document, or a copy of the document, that was presented on 12 February 2004?---To my knowledge, yes, it is.
PN4693
And if I could take you to that document. It commences with an index and if I could take you, I think it is to page 7, at the bottom of the page in the middle of the page there is a numbering - that is at clause 9, "Introduction of change"?---That is correct.
PN4694
Who drafted that?---I did on behalf of the company.
PN4695
And does it differ from what is in the existing EBA?---It looks like there is a slight change in it but it is pretty much the same as what the existing one is.
PN4696
That is the position the company wants in respect of introduction of change?---That is correct.
**** GRAEME McTAGGART XN MR PARRY
PN4697
And over the page, "Manning levels and workforce size." Is this different or the same as the existing EBA?---No, I believe that is the existing clause in the current EBA.
PN4698
And, again, is that the position with regard to manning levels and workforce size that TXU seeks?---That is correct.
PN4699
And on page 10, clause 14 - I am sorry, perhaps before getting to clause 10. How does this clause - I am sorry, how does this document deal with the shift premiums claim that you described to the Commission earlier?---It doesn't.
PN4700
And at paragraph - I am sorry, clause 14 deals with pay increases?---That is correct.
PN4701
And those are the pay increases that were proposed by TXU. Is that still the position of TXU?---Yes, these are - our first document had a pay increase of 2.6 per cent over the three years. This was an increased and a better position offered by the company of 4 per cent for each of the three years and it is our current position.
PN4702
And over the page, clause 16, flexible working hours. Is that similar to what is in the existing EBA?---Yes, it is with the exception of the heading, "The following applies to TXUA Electricity Pty Ltd employees."
PN4703
And on page 15, clause 21, "Contracting" where does the wording of that come from?---From the current agreement.
PN4704
And that is the position of TXU?---That is the current position of TXU.
PN4705
Yes, I tender that draft document.
**** GRAEME McTAGGART XN MR PARRY
PN4706
THE COMMISSIONER: Good. The employee relations update which is - it will be PT9, do you want to number the document separately, Mr Parry?
PN4707
MR PARRY: I am comfortable that they all form part of the one exhibit, Commissioner.
PN4708
PN4709
MR PARRY: Now, I think the next document should also - the heading, "Announcement to award employees" was attached to that. Mr McTaggart, was that a document that was distributed along with the employee relations update?---It was a letter sent to all electricity award employees directly to their home address.
PN4710
Right, so that is a separate document from the employee relations update?---Yes, it is.
PN4711
Yes. Now, perhaps before turning to that then, if I could stay with exhibit PT9, which is the employee relations update, in the second paragraph there is reference to:
PN4712
Mailing to our electrical award employees details of the proposal we have put to the unions.
PN4713
Is that reference to the following document?---Yes, it is.
**** GRAEME McTAGGART XN MR PARRY
PN4714
And that following document summarises the enterprise agreement offer?---It does.
PN4715
Now, the third paragraph refers, in the update, refers to:
PN4716
Disappointingly the unions rejected this offer without giving it due consideration.
PN4717
What occurred at the meeting on 12 February 2004?---We tabled the document and it was rejected by the unions and they continued to refer to their log of claims.
PN4718
Well, let us go back a step. You went into the meeting and handed over this document?---That is correct.
PN4719
What consideration was given to it?---Well, to my memory they had - the union negotiating team had time to review the document. I am not sure how long they took but came back with a rejection of the offer even though there was clauses in there that we had already had agreement with.
[4.09pm]
PN4720
And what did they say was in their response to the offer?---That they - that - our situation was that it was a complete offer and had to stand alone. They still wanted to re-negotiate or negotiate the clauses that we still had sticking points to. They rejected the introduction of claim clause, contractors clause, etcetera.
PN4721
And, also paragraph 3 refers to it - in PT9 it refers to:
PN4722
Additionally, they have also withdrawn their support for some clauses agreed previously.
**** GRAEME McTAGGART XN MR PARRY
PN4723
To what does that refer?---I can't remember specifically which clauses but we did have agreement on some of the clauses that were already in the contract - sorry, in the agreement that was tabled. "No additional claims", was raised as one - it is the only one I can remember off the - at this time. But there was some clauses in there that we already had agreement with that had now - now were rejected.
PN4724
Now the following document in the heading, "Announcement to Award Employees", that is a copy of the terms of the letter sent out to the employees?---That is correct.
PN4725
Yes. I tender that document.
PN4726
THE COMMISSIONER: Now, Mr Parry, I have got the TXU Employee Relations update which is PT9 and its attached Enterprise Agreement.
PN4727
MR PARRY: Yes.
PN4728
THE COMMISSIONER: And beyond that I go to the Employee Relations Update Dated 19 February. Am I in the same order as yourself here?
PN4729
MR PARRY: You are, apart from that document.
PN4730
THE COMMISSIONER: No, sorry. The Announcement to Award Employees.
PN4731
MR PARRY: Yes.
PN4732
THE COMMISSIONER: Yes. And that is PT10.
**** GRAEME McTAGGART XN MR PARRY
PN4733
PN4734
MR PARRY: Now, I think paragraph 20 of your statement then refers to the company requesting the Commission re-list the matter for hearing. And the matter came before Commissioner Lewin on 16 February 2004. There is a matter - there is a reference to the matter being adjourned into conference. What was adjourned into conference - what issues?---The whole situation was adjourned. Again, Mr Dixon, sought leave to appear. It was put on hold because, pending Mr - Senior Deputy President Lacy's decision, we then moved into conference after I had outlined the requirements of the dispute and asked seeking a recommendation from Commissioner Lewin about giving recommendations on a dispute. We then moved into conference to discuss the issues that were outstanding.
PN4735
Now if I could go to the 19 February 2004 update. There is reference there to a meeting with the unions that took place on 19 February 2004. And there is reference there to:
PN4736
We met with the unions to receive their formal response to our offer.
PN4737
Why a formal response after the matter had already been dealt with one week earlier?---The unions wanted to take - we recommended that they take the total document away to review it and, at that stage, we were awaiting their formal response. We had requested a formal response from them item by item or clause by clause.
PN4738
And you say there:
**** GRAEME McTAGGART XN MR PARRY
PN4739
25 of the 49 clauses are agreed and we are close to agreement on the majority of others.
PN4740
Well, what happened in the meeting with regard to the - what you describe there as the "key remaining items", being the unions claim for a 36 hour week; the amount of pay increase; use of contractors; and the process for resolving disputes?---It was the same as the meetings prior or previous. The 36 hour claim was all about implementation. The amount of pay increase was again deferred til the - to the end. It was always pushed back by the unions and said that would be the last union and we would fix that at the end. Use of contractors - there was again no agreement on the clause, and the processes for resolving disputes there is a step in step 4 of that, that is not agreed. Even today it is still not agreed.
PN4741
Now in these - this discussion on this date - 19 February 2004, was- there any discussion about trade-offs in respect of a 36 hour week?---I think all the way along we have both been asking each other for trade-offs about the 36 hour week. We did discuss some items at that time.
PN4742
Such as?---I think I have used the phrase, I think it was at this meeting that I used the phrase - off the top of my head - "No pay increases, use of contractors - unlimited use of contractors", and those type of trade-offs that we would require.
PN4743
And what was the response?---Laughter. And I think in one of the evidence statements that has been tabled, "Absolutely ridiculous", I think was the comment made.
PN4744
Who by?---I think it was Mr Kyle Pugh.
PN4745
I am sorry, who is he?---Shop steward for the ETU.
**** GRAEME McTAGGART XN MR PARRY
PN4746
THE COMMISSIONER: And - sorry, Mr Parry, but were the trade-offs made - were the trade-offs proposal made, Mr McTaggart, as a negotiating position or was it basically a statement of what you saw your bottom line as?---Well I think it was a statement from - from our perspective on what we thought we would need to move forward on the 36 hour message even though the 36 hour clause is not - it is not out there on its own. There are other clauses around it that still have to be negotiated or we still haven't reached any agreement on.
PN4747
MR PARRY: And what else - what have the unions said about being prepared to negotiate trade-offs, apart from this meeting?---It has been pretty much - it is not negotiable about trade-offs. It is only about how it would be implemented.
PN4748
THE COMMISSIONER: Was the term, "win-win" used with the TXU, Mr McTaggart?---No, not to my knowledge.
PN4749
You didn't hear, "win-win"?---No, I didn't hear, "win-win".
PN4750
Right.
PN4751
PN4752
MR PARRY: Now did you then attend a meeting with Commissioner Merriman?---Yes, I did.
PN4753
How did you come to attend that meeting, Mr McTaggart?---I was contacted by Mr Merriman and asked if we could attend the meeting. I was also contacted by the Industrial Relations Department of - up at Government, to see if we could attend that meeting.
**** GRAEME McTAGGART XN MR PARRY
PN4754
And where was that meeting held?---It was held up at Treasury Place.
PN4755
Who attended from TXU?---Myself, Mr Paul Adams - General Manager, Network, and Mr Joe Arnephy.
PN4756
And what happened at this meeting?---All of the distribution companies were represented. The unions were represented with the exception of APESMA. Mr Rizzo opened the batting for the unions, outlining the - the position of the unions. Mr Dean Mighell from the ETU then endorsed Mr Rizzo's outline of claims, including the 36 hour, including redundancies, apprentices, more people, more employees.
PN4757
What was said about the 36 hour week claim?---It was very clear to the companies that there would be no trade-off to that 36 hours.
PN4758
Why do say that. Were those words used?---Yes, those words were used.
PN4759
Who by?---My recollection is by Mr Dean Mighell.
PN4760
Now what happened at the end of that meeting?---Mr Merriman got us both back together and suggested that he would report back to the Government on the matters that were outstanding; specifically the 36 hour matter.
PN4761
Now did you also attend meetings with - did you attend meetings with the Minister for Energy Industries, Mr Theopanous?---Yes, I did.
PN4762
That meeting was about 24 February?---That is correct.
**** GRAEME McTAGGART XN MR PARRY
PN4763
Was that involved with - what happened at that meeting?---The Minister called all of the distribution companies together to work through what the current bans were doing and how much impact they were having. He discussed the Essential Services Act. He was looking for us to consider the union claims. We outlined our position on the union claims.
PN4764
Did you attend a meeting with Mr Pope?---No, I didn't.
PN4765
Now there is a TXU Employee Relations Update of 25 February 2004. Was that another such updated distributed after the meetings with Mr Merriman and the Honourable Mr Theopanous?---Yes, it was another meeting we had with the negotiating party.
PN4766
PN4767
MR PARRY: Now after 25 February 2004, was there a meeting held on 9 March 2004?---I think there was. Yes.
PN4768
How did that meeting come about?---I am not sure whether we had actually programmed it or it was at the request of the unions. I think it was a programmed meeting.
PN4769
And perhaps if I could go to the next Employee Relations Update of 10 March 2004. This refers to a hearing in front of the Australian Industrial Relations Commission on 10 March 2004. What happened at that hearing?
**** GRAEME McTAGGART XN MR PARRY
PN4770
THE COMMISSIONER: Mr Parry, sorry to interrupt you but the last item we numbered was PT12 - I think - - -
PN4771
MR PARRY: Yes.
PN4772
THE COMMISSIONER: - - - and that was the one headed 25 February.
PN4773
MR PARRY: Yes.
PN4774
THE COMMISSIONER: The next item in my pile is one dated 5 March and then you go to the one dated 10 March. Are you going through them in some chronological order?
PN4775
MR PARRY: Yes. Well, if you - I was.
PN4776
THE COMMISSIONER: Good. I would hate to throw my numbering out from your chronology.
PN4777
PN4778
MR PARRY: And to move to the next one - 10 March 2004, you referred to there being proceedings in the Commission, what happened in the Commission on 10 March 2004?---Now there was not a lot of movement from either party. We were discussing, in conference again, the hearings and where we would - we were.
**** GRAEME McTAGGART XN MR PARRY
PN4779
Perhaps not - we won't get into detail of what went on in the conference but those - the sort of negotiations were discussed in conference were they?---That is correct.
PN4780
Now, there is also a reference in the Employee Relations Update to a meeting on 9 March 2004 with the unions and who was present at that meeting, on 9 March 2004?---All parties.
[4.24pm]
PN4781
And how long did that meeting go for?---A couple of - I couldn't - I can't really say how long but it was a reasonable meeting.
PN4782
Why - do you have any explanation as to why this update says there was no progress on any of the key remaining issues, the unions' claim for a 36 hour week, the amount of the pay increase offered, the use of contractors, introduction of change, refusal to insert a no extra claims clause in the process for resolving disputes?---Well, again, it was to inform - keep the employees informed of how the negotiations were going or weren't going, as this indicates.
PN4783
Well, did that reflect what had occurred at the negotiations?---Yes, it had.
PN4784
And in the next paragraph there is reference to the union position remaining unchanged, apart from the commencement of negotiations. Is that with regard to these key issues your position, your understanding?---That is correct.
PN4785
And there is reference in the next paragraph, the unions in the last sentence says:
PN4786
The unions, however, have refused to move from their more pay for less work demand for a 5 per cent increase and a 36 hour week.
**** GRAEME McTAGGART XN MR PARRY
PN4787
Now, on what is that based?---Well, the union claim has been - originally it was a 7 per cent pay increase plus a 36 hour week. That has been reduced to a 5 per cent pay increase plus 36 hours, and that hasn't changed.
PN4788
PN4789
MR PARRY: Now, have you held a meeting with the unions on 16 March 2004?---Yes, we did.
PN4790
Was that an on the record meeting?---Yes. Yes, it was an agreed meeting, yes.
PN4791
Yes, and what occurred at that meeting; who was present firstly?---The negotiating team from both sides.
PN4792
And what occurred at that meeting?---Well, again, we went through the - our document, the TXU document. Where we had agreement on some clauses they were noted and the items, or clauses that we still were negotiating and didn't have agreement on were also noted. There was no movement from the unions on their position of 36 hour week, introduction of change, use of contractors.
PN4793
Now, I asked you about the off the record. Were you approached about an off the record meeting?---Yes, I was. I had a phone call.
PN4794
Who from?---Mr Georgiou.
PN4795
What did that - what were the - when?---Friday of last week.
**** GRAEME McTAGGART XN MR PARRY
PN4796
That would be Friday, the week before?---Yes, the week before it was actually. Yes, sorry. The week before, the 12th.
PN4797
The 12th?---Yes.
PN4798
And did he ring you?---Yes, he did.
PN4799
What was said in the conversation?---To my recollection, he suggested we should have a meeting. It would be an off the record meeting to try and sort out the issues that still lay in front of us.
PN4800
And what was the - did he say what off the record involved?---No, he didn't but he did suggest that it would be union officials only, or union organisers only and no shop stewards.
PN4801
THE COMMISSIONER: I think the actual date, by the way, was the 19th?---The 19th.
PN4802
Yes. Friday, not last Friday but the previous Friday?---The previous one.
PN4803
MR PARRY: And did any such meeting take place?---No, it didn't. We - I had - I was in the street at the time and I didn't have my diary in front of me. I said I would ring Mr Georgiou back. We set aside a meeting for last Friday. We had subsequently - have cancelled that meeting. We did cancel that meeting.
PN4804
Now, I am not sure how long the Commission is going to sit.
PN4805
THE COMMISSIONER: I was proposing to go till 4.45 but what - how much longer do you want, Mr Parry?
**** GRAEME McTAGGART XN MR PARRY
PN4806
MR PARRY: I am going to now go to the unions' statements and ask Mr McTaggart's comment on the unions' statements.
PN4807
THE COMMISSIONER: Would you be finished in 15 minutes? If not, we will - let us just think - - -
PN4808
MR PARRY: Probably not, but not - yes, sorry.
PN4809
THE COMMISSIONER: Good. Now, given that we are going to have Monday morning, are we confident that with all of tomorrow, starting at 9.15 going through until five, and Monday morning, we will finish?
PN4810
MR PARRY: I would be very confident that we will finish the evidence tomorrow.
PN4811
THE COMMISSIONER: Yes. Well, if we are going to finish the evidence tomorrow, then submissions on Monday morning, hopefully finish them as well.
PN4812
MR PARRY: Yes.
PN4813
THE COMMISSIONER: Well, let us break now and resume tomorrow morning at 9.15.
PN4814
MR PARRY: If the Commission pleases.
PN4815
THE COMMISSIONER: Good.
ADJOURNED UNTIL TUESDAY, 30 MARCH 2004 [4.30pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
NORMAN PETER DREW, ON FORMER OATH PN3590
CROSS-EXAMINATION BY MR BORENSTEIN PN3590
RE-EXAMINATION BY MS MacLEAN PN3836
WITNESS WITHDREW PN3861
EXHIBIT #SPI17 LOG OF CLAIMS - LETTER FROM MR GEORGIOU TO MR FICCA PN3866
MARK GEORGIOU, AFFIRMED PN3881
EXAMINATION-IN-CHIEF BY MR BORENSTEIN PN3881
EXHIBIT #SPI18 ENTERPRISE AGREEMENT 2002 PN3884
EXHIBIT #BS1 STATEMENT OF MARK GEORGIOU PN3896
CROSS-EXAMINATION BY MS MacLEAN PN3975
EXHIBIT #SPI19 NEWSLETTER PREPARED BY MR GEORGIOU DATED 24/02/2004 PN4057
RE-EXAMINATION BY MR BORENSTEIN PN4117
WITNESS WITHDREW PN4127
WESLEY HAYES, SWORN PN4129
EXAMINATION-IN-CHIEF BY MR BORENSTEIN PN4129
EXHIBIT #BN2 WITNESS STATEMENT OF MR W. HAYES PN4140
CROSS-EXAMINATION BY MS MacLEAN PN4272
EXHIBIT #SPI20 PRESS RELEASE PN4311
EXHIBIT #SPI21 RECOMMENDATIONS PASSED BY THE MASS MEETING PN4317
WITNESS WITHDREW PN4446
MICHAEL RIZZO, AFFIRMED PN4447
EXAMINATION-IN-CHIEF BY MR BORENSTEIN PN4447
EXHIBIT #BN3 WITNESS STATEMENT OF MICHAEL RIZZO PN4454
CROSS-EXAMINATION BY MR PARRY PN4462
EXHIBIT #SPI22 NEWS BRIEF DATED 27/02/2004 PN4526
WITNESS WITHDREW PN4536
GRAEME McTAGGART, SWORN PN4586
EXAMINATION-IN-CHIEF BY MR PARRY PN4586
EXHIBIT #PT1 STATEMENT OF G. McTAGGART PN4607
EXHIBIT #PT2 UNDATED DOCUMENT HEADED LOG OF CLAIMS PN4621
EXHIBIT #PT3 DOCUMENT DATED 27/11/2003 PN4635
EXHIBIT #PT4 EMPLOYEE RELATIONS UPDATE DATED 15/01/2004 PN4639
EXHIBIT #PT5 UPDATE DATED 22/01/2004 PN4644
EXHIBIT #PT6 EMPLOYEE RELATIONS UPDATE DATED 29/01/2004 PN4672
EXHIBIT #PT7 EMPLOYEE RELATIONS UPDATE DATED 04/02/2004 PN4682
EXHIBIT #PT8 EMPLOYEE RELATIONS UPDATE DATED 06/02/2004 PN4687
EXHIBIT #PT9 EMPLOYEE RELATIONS UPDATE DATED 12/02/2004 AND DRAFT ENTERPRISE AGREEMENT PN4709
EXHIBIT #PT10 ANNOUNCEMENT TO AWARD EMPLOYEES PN4734
EXHIBIT #PT11 DOCUMENT DATED 19/02/2004 PN4752
EXHIBIT #PT12 TXU EMPLOYEE RELATIONS UPDATE OF 25/02/2004 PN4767
EXHIBIT #PT13 DOCUMENT DATED 05/03/2004 PN4778
EXHIBIT #PT14 EMPLOYEE RELATIONS UPDATE PN4789
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