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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
(Administrator Appointed)
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 7574
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT LACY
BP2004/3795
APPLICATION FOR TERMINATION
OF BARGAINING PERIOD
Application under section 170MW of the Act by
Agility Services Pty Limited - AGL Electricity,
Agility Management Pty Ltd t/as Agility and
Another for orders to suspend or terminate
bargaining periods in BP2004/2163, BP2004/2169,
BP2004/2170, BP2004/2171, BP2004/2172, BP2004/2176,
BP2004/2177, BP2004/2183 and BP2004/2184
MELBOURNE
9.38 AM, WEDNESDAY, 23 JUNE 2004
Continued from 16.6.04
PN177
MR F. PARRY: I appear with MR C. O'GRADY for the applicants.
PN178
MR G. BORENSTEIN: I appear with MR W. HAYES, an organiser of the CEPU.
PN179
MR M. GEORGIOU: I appear on behalf of APESMA.
PN180
MR N. HENDERSON: I appear on behalf of the ASU.
PN181
THE SENIOR DEPUTY PRESIDENT: I apologise for the late start. I thought it might help expedite matters though if I read the material that was filed this morning by the - on behalf of the unions. Yes, Mr Parry.
PN182
MR PARRY: If the Commission pleases. On 11 June we filed an application under section 170MW(7) of the Act seeking the termination or suspension of various bargaining periods. The Commission will have noted from the material that there were earlier bargaining periods instituted by these unions in November last year. They were withdrawn and have been supplanted by bargaining periods in February 2004. I would understand that the Commission has those bargaining files in the Commission.
PN183
THE SENIOR DEPUTY PRESIDENT: Yes, I do.
PN184
MR PARRY: The Commission will also be aware that there was a certified agreement which expired on 31 December 2003 and that there have been negotiations to replace that agreement which commenced in or around November 2003. The Commission has been involved with those negotiations which have continued up until recent times. At the time we made the application we filed unsworn affidavits of Mr Deprinse and Mr Edwards. That was on 11 June 2004 and we then had those affidavits sworn with some very minor amendments and served on 15 June 2004. I assume the Commission has before it an affidavit of Mr Deprinse and an affidavit of Mr Edwards in a sworn form at this stage.
PN185
THE SENIOR DEPUTY PRESIDENT: Yes, I do. Have you been notified whether they are required for cross-examination?
PN186
MR PARRY: I haven't been told whether they are available - whether they are required. They are in the Commission if it be necessary.
PN187
THE SENIOR DEPUTY PRESIDENT: Yes, perhaps I will just clarify that before you go on, Mr Parry. Are they required for cross-examination?
PN188
MR BORENSTEIN: They are, your Honour.
PN189
THE SENIOR DEPUTY PRESIDENT: Yes, very well.
PN190
MR PARRY: The Commission made directions on 16 June about the filing of further material which was to be received by lunch time yesterday. Those directions weren't complied with. We did receive a submission from the ASU - a one page submission at about 3.30 and as the Commission is aware we have been handed this morning some - an outline of submissions and also three statements which take issue with some of the evidence of Mr Deprinse and make other assertions. Our position is that we want to proceed with the matter.
PN191
THE SENIOR DEPUTY PRESIDENT: Have you had an opportunity to look at those documents?
PN192
MR PARRY: I have - what opportunity one can have in half an hour to read three affidavits and compare them to our material. We will be proceeding. We will, of course, be making the submission that the Commission should bear in mind the failure to comply with the directions and the short time frame we have had to get instructions. We didn't know the sort of assertions and arguments that would be made until this morning. Our client, of course, has a serious concern that this matter will be delayed and that there will be a ramping up of the industrial action which is taking place at present and it is unfortunate that the directions weren't complied with in all those circumstances.
PN193
We have, as I have indicated, Mr Deprinse and Mr Edwards in the Commission. Depending on evidence that is given by Mr - not Mr Rizzo - Mr Georgiou we might need to call some further evidence in reply and we re trying to make those arrangements at present, your Honour. Unless there is anything further, your Honour, I will proceed to call Mr Deprinse.
PN194
THE SENIOR DEPUTY PRESIDENT: Yes. Just before you do, Mr Parry, what is the reason for the delay in the - or failure to comply with the directions.
PN195
MR BORENSTEIN: I apologise to the Commission for failure to comply with the directions, but I can say that I did my best to comply with the directions and I was in the office late last night finishing the draft affidavits and submissions and they had to read by Mr Georgiou and signed off by Mr Georgiou this morning and I apologise for that.
PN196
THE SENIOR DEPUTY PRESIDENT: Well, of course, the Commission expects its directions to be complied with.
PN197
MR BORENSTEIN: I understand that. I would like to say that it wasn't an extensive time allowed to prepare the material and there was a substantial amount of material to go into and I can say that the unions did their best to comply with the directions and took the directions very seriously.
PN198
THE SENIOR DEPUTY PRESIDENT: All right. You wanted to raise another matter?
PN199
MR BORENSTEIN: I would like to raise that - just to put on note that it is the applicant's decision about whether they wish to provide more evidence now. If they do not wish to provide it then we submit that - or they can either ask for an adjournment now so they can prepare reply material so that we can have it, or they can proceed with their case now and rely on the evidence that they have filed so far and what they can put in first. It is - - -
PN200
THE SENIOR DEPUTY PRESIDENT: Well, given the lateness of your materials I propose to proceed now and give them leave to call further evidence in reply should that be necessary.
PN201
MR BORENSTEIN: Well, could I reserve the union's right to present further evidence in reply to the material put by the applicant in reply?
PN202
THE SENIOR DEPUTY PRESIDENT: Yes, you can reserve your position in relation to that. I wouldn't know that it is a right but I will let you proceed - - -
PN203
MR BORENSTEIN: Yes, thank you, your Honour.
PN204
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Parry.
PN205
PN206
MR PARRY: If the Commission pleases. Your full name is Edwin Willy Deprinse?---Correct.
PN207
Where are you employed?---I am employed by Agility Services Pty Limited and my office is at 34 William Street, Broadmeadows.
PN208
And what position do you hold with Agility?---My position is Manager Asset Services Victoria.
PN209
And what are your responsibilities in that position?---My responsibilities is the management and supervision of the field operations, the construction and the maintenance predominantly of the electricity lines in the AGL network area of Victoria, north-west Melbourne metropolitan area.
PN210
Have you been involved in the negotiations with the three unions represented in the Commission in respect of a new certified agreement?---Correct, I have been involved in the majority of the meetings.
PN211
And why have you been so involved?---Because I am responsible for the high proportion of the people that this certified agreement will cover.
PN212
Have you prepared a statement for these proceedings, Mr Deprinse?---Correct, I have prepared an affidavit and I have got a copy here in front of me.
PN213
And are the contents of that affidavit true and correct?---Yes, they are.
PN214
**** EDWIN WILLY DEPRINSE XN MR PARRY
PN215
MR PARRY: Now, Mr Deprinse, I have been handed an affidavit this morning by Mr Wes Hayes. Have you had a quick look at that affidavit of Mr Hayes?---An extremely quick look but I haven't looked at the last two or three points as yet.
PN216
Right. In paragraph 54 of your witness statement you refer to meetings at the offices of the ETU and you refer there to discussion concerning issues such as the 36 hour working week and contractor clause issues; do you see that?---Yes.
PN217
Mr Hayes takes issue with this and he says that - well, his affidavit in effect as I read it suggests that the contractor's clause is resolved. Now, what do you say to that?---My recollection of the meeting was that we went through the original contractor's clause in the old EBA. We started making up words and we thought well, let us take a new approach and let us actually draft up a completely fresh contractor's clause. We did that together with the ETU. After much discussion the ETU drafted a new contractor clause. We reviewed it, we said - I can't remember the exact words but we commented that was fine or it was along the lines we were happy with, or - but there was no formal agreement at that meeting. Subsequent to that meeting the contractor clause was e-mailed to Ms Sue Baker. We then requested that some additional words be added that - along the lines of approval will not be unreasonably withheld. The union took issue with that and then accused us of reneging at that stage.
PN218
And as of today what is the position with regard to the contractor's clause?---We have had a further redrafting and a restart of a new contractor clause. At a further meeting we proposed another contractor clause that we came very close to agreeing to. At a subsequent meeting - I can't remember the date - we thought that we had agreed to that. The union then reversed their decision on agreeing to that clause and at this stage the contractor clause still remains unresolved.
**** EDWIN WILLY DEPRINSE XN MR PARRY
PN219
Mr Hayes also takes issue with your paragraph 86 where you refer to progressive escalation of bans and limitations since February 2004 to advance their claims. His statement disagrees with that and says that the unions have averted and lifted bans and stoppages in order to progress negotiations. What do you say to the proposition that the unions haven't escalated their bans and limitations since February 2004?---That is incorrect; the unions have escalated their bans. There have been some bans that have been lifted but through - since February there have been more and more bans progressively imposed on the business.
PN220
Do you have a concern about further ramping up of industrial action?---Correct. I have a concern that should the matters not be resolved the industrial action will ramp up further and further and further and it will further damage the prosperity and the mechanisms of the business.
PN221
Is that simply a concern that you have or do you base it on something you have been told?---I have heard rumours that there is going to be increased industrial action. I have got no evidence of that.
PN222
Now, if I could take you to paragraph 96 of your statement. You refer to the various issues that haven't been resolved as yet. Perhaps if you could describe briefly, hopefully, Mr Deprinse, each of those, what the claim is and what its significance is for Agility. Firstly, superannuation, what is the claim there?---On superannuation the claim by ASU and APESMA is that the total employment costs, including vehicle costs is included for the matters for defining superable salary and we have not had that included for people that have vehicles, including the salary, and we would like to maintain the status quo in that area.
PN223
What sort of cost would that involve to Agility?---We would have to top up the superannuation fund to a value of in excess of 3 million dollars and that is one of the main reasons that we don't want to do that because in Victoria alone for some 50 people we would have to provide funding for over 3 million dollars and in our view it is not equitable to provide 3 million dollars for some 50 people.
**** EDWIN WILLY DEPRINSE XN MR PARRY
PN224
There is also - the next item is parent award coverage. What is the issue there?---Our current EBA is tied back to numerous previous awards. We would like to bring it back to one or two awards and start to lose reference to a lot of the awards that go back in time and history. In the time that I have been in Agility there have not been many issues where people have wanted to go back to the previous awards or prior awards and we would like to tie it back to the two main awards.
PN225
The next item, use of contract labour, what is the issue there?---The use of contract labour there is really two issues. It is when - what companies we could put on our lists to be approved contractors and the second issue is when we are happy for contractors to be used in the business and at what time does the union have the right of veto or the ability to contest what we put forward.
PN226
The next item, introduction of contracts of employment, what is that matter?---If the ability to give individual contracts to what we call TFR people, we would like to have more individual contracts with people and it is really about how we come up with the terms and conditions for those individual contracts.
PN227
THE SENIOR DEPUTY PRESIDENT: What are TFR people?---Total fixed remuneration.
PN228
MR PARRY: Introduction of change provisions?---The introduction of change, the issue there is as we change processes and practices and change issues within the work practice, do we consult with the union or do we actually wait for their approval before we implement them and there is a - I suppose the issue of the right for us to manage the business in there.
PN229
Parental leave?---Parental leave, we have our existing policy and our existing EBA has that we have - I think it is 12 weeks' maternity leave and one week paternity leave. The union would like to increase that and we would like it to remain where it is.
**** EDWIN WILLY DEPRINSE XN MR PARRY
PN230
The hours of work, including a clause for a 36 hour working week?---This is predominantly with the ETU. That is the claim the ETU is that they would like that 36 hour working week. Our preference is to remain with the 37-1/2 working week. If we were to implement a 36 hour week it would have to be on a cost neutral basis.
PN231
Wage increases?---Wage increases, it is only towards the end of the EBA that we have really - or the end of the negotiations they have really started to talk about wage increases and even on wage increases we don't have an agreement on how much the wage increases would be. There is impact of costs of the other items or the other claims that need to be factored in before we can agree on what the wage increases would be.
PN232
Long service leave provisions?---Long service leave, that would be a lower priority issue and the issue there is whether we have seven years' pro rata recognition of long service leave instead of the ten years we have at the moment.
PN233
Now, Mr Deprinse, have you organised for the preparation of a document as to the history and formation of Agility?---Yes, there is a document there that shows the history from the old SECV and MEU to what we have today.
PN234
If I could hand you this document, Mr Deprinse?---Correct, I am familiar with this document.
PN235
That has been prepared by persons within your organisation, has it?---Correct.
PN236
Yes. I tender that if it needs to be tendered or added to the statement of Mr Deprinse, your Honour.
PN237
THE SENIOR DEPUTY PRESIDENT: It is not already part of his statement?
**** EDWIN WILLY DEPRINSE XN MR PARRY
PN238
MR PARRY: It is not already part of his statement, no.
PN239
THE SENIOR DEPUTY PRESIDENT: Do you have another copy of it?
PN240
PN241
MR PARRY: If the Commission pleases.
PN242
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Parry.
PN243
MR GEORGIOU: Can I have a minute to read this before I start cross-examining?
PN244
THE SENIOR DEPUTY PRESIDENT: Yes. Are you going to cross-examine, Mr Georgiou?
PN245
MR GEORGIOU: I am, your Honour.
PN246
THE SENIOR DEPUTY PRESIDENT: Yes.
PN247
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN248
MR GEORGIOU: Mr Deprinse, how long have you been with Agility?---As per my affidavit I commenced with Agility in November - November, nearly 18 or 20 months ago.
PN249
Right. When did you find out you had the EBA negotiations?---When did I find, sorry?
PN250
When did you find out you were going to be doing the EBA negotiations?---Approximately 12 months ago.
PN251
About 12 months ago. Did you decide to have any preliminary meetings with any unions prior to the EBA negotiations commencing?---No, I can't recall any.
PN252
You don't remember a meeting with me out at Broadmeadows?---Correct, I had a 101 meeting with yourself.
PN253
Thank you. And what was the subject of the discussions between you and I?---I can't recall that here and now.
PN254
Did superannuation figure reasonably prominently in our discussions?---Yes, it did.
PN255
It did. And can you give us some idea of what we discussed?---We discussed the superannuation case that was before Commissioner Tolley at the time and the - or that was going to go to Commissioner Tolley and the - your desire to get the superannuation issue closed down and my desire to similarly get the superannuation closed down.
PN256
And what does that mean, the superannuation issue closed down?---We were both at a deadlock and we had differences of opinions of where it would go. I was fairly new to what the issue was and I am still preparing myself as to what the cost and what the issues really were.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN257
You hadn't received any costings at that stage even though that material had been presented before Commissioner Tolley?---I was aware of some of the material, yes, I was.
PN258
Did you express a desire to have the matter resolved as part of the EBA?---Yes, I expressed a desire to have the matter closed down and resolved, yes.
PN259
You knew it was going to be part of the negotiations for the EBA?---Yes.
PN260
Did we discuss any other matters to do with the EBA at that meeting?---We could well have.
PN261
The 36 hour week?---No, I don't think that was discussed at that meeting.
PN262
Okay. Were you briefed as to the negotiations that had previously occurred for an EBA to - I will call them AGL for the sake of it but it is those companies that we all know who they are?---Mm.
PN263
Were you briefed about the previous EBA negotiations?---Yes.
PN264
What were you told about the previous negotiations?---What - I was told that there was long and lengthy discussions and the way the EBA went.
PN265
How long did the previous EBA negotiations take?---I don't know on the full date but I know it wasn't as long as this negotiation.
PN266
But it was pretty long. So you were in it for the long haul?---Correct.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN267
Was there any - were you advised if there was any industrial action taken during the previous EBA negotiations?---No.
PN268
So it was pretty long but there was no industrial action?---Yes.
PN269
Were outside consultants brought in for the previous EBA negotiations?---No.
PN270
Were facilitators brought in for the previous negotiations?---Correct, they had a facilitator last year.
PN271
Right. So even with facilitators, no industrial action, the previous EBA took a fair while. Do you know how long the fair while was?---No, I couldn't tell you what the fair while was.
PN272
You didn't research how many meetings there were?---I have - I could find out and I have got a - but I haven't got the number here with me, I can't - - -
PN273
Roughly similar would you imagine?---No, I think it was resolved quicker than what we are now.
[10.05am]
PN274
I will give evidence later. Let us get down to the TEC issue. When was the last time the issue - to your knowledge, the issue of the total employment costs for superannuation was discussed?---Between ourselves?
PN275
No, I didn't ask that. I want to know when he thinks the last time there were discussions on the TEC issue for superannuation between the company and persons negotiating an enterprise agreement?---The discussions we had with yourself, the last discussions we had, were, I think on the floor above this here in the Commission, about two or three weeks ago.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN276
No subsequent discussions with anyone involved from the union side n this issue?---I have not had any discussions and - - -
PN277
You haven't had any discussions with Mr Harrison from my organisation?---I have had discussions with Mr Harrison, yes.
PN278
On this issue?---Yes.
PN279
Did he put to you that he would recommend to my - to me, the suspension of some of the industrial action on the basis of resolving this issue?---Can you repeat that, please?
PN280
Did he put to you that he would recommend to me the suspension of some of my organisation's industrial action on the basis of progress being made on the issue of the superannuation?---No, I have had no formal offer or - no, have not.
PN281
Has anyone else, to your knowledge, from your organisation, been discussing this issue with others?---Yes. Yes. Ms Sue Baker has been talking to Mr Colin Harrison.
PN282
So earlier you said, you didn't - but now it is Ms Sue Baker? She has been having discussions with whom?---Sue Baker has had discussions with Colin Harrison.
PN283
Colin Harrison. On this issue?---Correct.
PN284
Anyone else?---Not that I am aware of, there could well have been.
PN285
Do you think - - -?---Sorry, yes.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN286
Go on?---I have had discussion with Colin.
PN287
Right?---Sue has had a discussion with Colin, and there may be other people who have had discussions with Colin, I am not aware.
PN288
Are you in charge of the negotiating team for AGL?---Correct.
PN289
Do you report to anyone in particular?---I report to a Mr Beech, Mr Tony Beech.
PN290
Has he advised you of any negotiations he has had on this issue?---He has advised me on some discussions he has had, but not on negotiations.
PN291
Discussions with whom?---I know he has had a discussion with - he has done some work group meetings and advised some people on the work groups. And - - -
PN292
He hasn't discussed it with any of the unions? He hasn't had any discussions to your knowledge with any of the unions?---I am aware that he might have had a discussion with yourself, but I am not privy to that discussion.
PN293
He might have had a discussion with me?---Yes.
PN294
How long ago might he have had this discussion with me?---About a week or two ago.
PN295
Before or after this application was lodged?---Could well have been afterwards.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN296
Did he not tell you what it was about?---No.
PN297
So you are the chief negotiator for the company?---Correct.
PN298
You report to Mr Beech?---Correct.
PN299
And Mr Beech has discussions, is what you said, with me but he had - - -
PN300
THE SENIOR DEPUTY PRESIDENT: Might have.
PN301
MR GEORGIOU: Might - no, no, I think he then clarified it as being a bit more specific, your Honour.
PN302
Well, do you know whether he had discussions with me?---I understand he was going to have a meeting with you, but I don't know what the details of the discussion were, when the discussion was, or what was said.
PN303
So you are the chief negotiator for the company?---Correct.
PN304
You are accountable to Mr Beech?---Correct.
PN305
You are in charge of the negotiations?---Correct.
PN306
But you are aware that he might have had discussions that didn't involve you on the issues that are subject of negotiation?---Correct.
PN307
So you are not really driving the train, are you?---I am.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN308
But Mr Beech is authorised to ignore you and deal directly with the unions?---I would not say that he has ignored me, but he is my - my manager.
PN309
Is he allowed to - sorry, does he make offers with regard to enterprise bargaining that don't involve you?---Not that I am aware of.
PN310
Has he ever discussed with you the quantum that may arise out of an enterprise agreement?---Yes.
PN311
What has he told you the parameters are?---Our quantum is - - -
PN312
MR PARRY: I object. This is asking a question about where the - what the possible parameters of the negotiation might be. This is asking this witness in the box what a potential bargaining position might be. I object to that.
PN313
THE SENIOR DEPUTY PRESIDENT: Yes. Well, Mr - - -
PN314
MR GEORGIOU: Your Honour, it goes to whether there is any reasonable prospect of reaching agreement.
PN315
THE SENIOR DEPUTY PRESIDENT: It is also asking the company to give away its bargaining position, isn't it?
PN316
MR GEORGIOU: Okay. Did Mr Beech tell you that he had offered me four and a half per cent by three?---No.
PN317
No. Would it surprise you that he had made such an offer?---Yes.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN318
Thank you. With regard to the superannuation claim, how many people are affected by the salaried unions claim for superannuation, because there are different dimensions to it?---I understand about 50.
PN319
About 50. How many of those are in the defined benefit fund?---Most of them.
PN320
Most of them. Are you in a defined benefit fund?---Correct.
PN321
When did you start with organisation?---I started with AGL back in 1994, I think it was.
PN322
I don't mean to pry into your private business, but which defined benefit fund are you in?---I can't remember the name of it, it is the AGL defined benefits fund.
PN323
Okay?---Because I started in Western Australia with the company.
PN324
So you are not in Equip Super?---No.
PN325
Does your TEC arrangements include a vehicle?---No.
PN326
So you don't have a vehicle as part of your arrangements?---I have a novated vehicle.
PN327
Does your fund allow for the vehicle costs to be included in your defined benefit?---I haven't explored it to that level, but I imagine if the company made that request, then that would be an option that they would be able to do. If the company said they were willing to support that financially.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN328
Do you do that currently, include a vehicle in your TEC costs?---Not for the purposes of superannuation. My vehicle costs is not included.
PN329
How many people of these 50 odd have novated leases?---I am not sure, I couldn't tell you, but a significant amount.
PN330
So they currently have novated leases. Does that impact on their superannuation?---If they have a vehicle allowance as part of their salary package, then it does, yes.
PN331
Have you got figures for how you have arrived at the $3 million mark?---Yes, we have got a statement from the actuary to say that that is what the cost is.
PN332
Is that - has that figure - sorry, is that information ever been provided to the unions?---I understand Brad Griffiths or Paul Edwards showed you a copy of the actuarial assessment at the meeting we had upstairs - the last meeting we had on the EBA.
PN333
You know that or you think that?---I know that. I saw a copy of the letter, and I know that Paul showed you at that meeting.
PN334
My memory must be slipping. Has Ms Baker - Ms Baker has been talking with Mr Harrison, to your knowledge, about this issue?---Correct.
PN335
Has she briefed you on the progress of those negotiations?---In what respect?
PN336
How they are going, where you are at?---Yes, I know they have had discussions and they are continuing to discuss and they are continuing to explore what other options there may be.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN337
Have they come up with any other options, to your knowledge?---Not an option that would break the current deadlock that we have.
PN338
On the parent award coverage, you say in your evidence that the majority of employees - it is in the last sentence:
PN339
... of employees at Agility and AGL Electricity are from the former SECV.
PN340
Is that correct?---Correct.
PN341
At the time of the formation of Solaris, have you done any research as to how many came from the MEUs and how many came from the SECV?---I haven't got the specific numbers for at the time it was in 1996, but I understand at the current time, the amount of people that come from the former MEUs is around the order of about 15 per cent.
PN342
Fifteen per cent. How many people have joined the company since Solaris was formed? In other words, having come from the MEUs or the SECV?---Oh, I - - -
PN343
Didn't do that research?---I haven't got that number on me, no.
PN344
These figures might be a bit rubbery. Would it surprise you that the majority of professional engineers joining Solaris at the time, came from the MEUs?---That would be a surprise, yes.
PN345
Well, would it surprise you that at the time, documents from the company referred to a majority of employees coming from the MEUs?---That would be a surprise to me, yes, that would be new.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN346
The network at the time of the formation of Solaris, are you aware of its composition and size at the time of the formation of Solaris?---Yes, in general terms, I am aware, yes.
PN347
Where was most of the activity at the time of the formation of Solaris? Where was most of the work?---I couldn't tell you that here and now.
PN348
There were five MEUs. Can we just go through. There were five Municipal Electrical Undertakings. They covered Williamstown, Footscray, Coburg, Preston and Heidelberg?---Correct.
PN349
Take those out of the equation, what was left?---The SEC.
PN350
Yes, which areas did that cover?---The remaining areas, Sunbury, Broadmeadows, Gisborne, those outer districts.
PN351
Yes. At the time of the formation of Solaris, was there that - well, you won't know because you weren't around. Do any of the records you have seen show that the growth in the Sunbury/Gisborne area and further out towards Craigieburn, all occurred after the creation of Solaris?---What I am willing to say is that they are areas of significant growth, yes.
PN352
So at the time of its formation, you don't know whether the main areas in Solaris's geographical area, were covered by the Municipal Electrical Undertakings?---No.
PN353
Does it surprise you that the City of Footscray alone had eight professional engineers?---It doesn't surprise me, no.
PN354
And there were five MEUs?---Mm.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN355
And would it surprise you that at the creation of Solaris, there were 58 professional engineers in the company?---That wouldn't surprise me.
PN356
And Footscray has got eight. There are five MEUs, not all as big, but only williamstown was significantly smaller, and Heidelberg?---Mm.
PN357
So it would be fair to say that perhaps a majority of the professional engineers came from the Municipal Electrical Undertakings?---But I am not aware of that.
PN358
Haven't done any research?---I haven't got those numbers, no.
PN359
Are you prepared to say that you believe that 85 per cent of the employees came from the SECV, but you haven't done any work to substantiate that?---Yes, we have done some work to substantiate that.
PN360
You have, sorry?---We have work to show that of the employee list that we have that work for us, how many come from the SECV, and how many came from the B
PN361
And you have gone right back to 1993?---Of the current workers that we have today, yes.
PN362
You didn't go back to the figures in 1993 though?---No, we went through the list of the employees that we have today.
PN363
Today? How many employees were there in 1993?---I couldn't tell you that now.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN364
Couldn't tell us. Were you familiar at all with the old State Electricity Commission?---In what regards?
PN365
What it did, who it covered, type of work it did?---Correct, yes, I am aware of the size and the scale of it.
PN366
From your own experience or from this history lesson we have been receiving?---From my own experience and from things that I have learnt since I have been in my role.
PN367
And how did you go with the MEUs? Did you do a little bit of research on them as well, to see how they were formed and how they came about, and what they did?---Yes.
PN368
What was the difference between the SECV and the MEUs?---The SECV was a retailer, generator, transmitter and distribution of the electricity, and the MEUs were largely a network company, a distributor.
PN369
If we take the customer services group of the old SECV, how does that stack up with the MEUs?---I couldn't tell you here and now.
PN370
Similar sort of work?---I am not sure. Which area of customer services - you are talking retail?
PN371
Well, there was - you say in this document A2, that there were three strategic business units. I didn't say. You did. Production group, power grid group, customer services group. Who are the customer services group?---Well, the distribution and the retail services, as it says in the document.
PN372
Yes. And how did they stack up with the MEUs? What did the MEUs do?---They did low volume distribution systems and retail.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN373
Very similar, wouldn't you say?---Yes.
PN374
Yes. Any of the MEUs involved in generation at all?---Not that I am aware, no.
PN375
Melbourne City council?---Oh, maybe, yes, to a lesser degree.
PN376
So the customer services group of the SECV did similar work. Let us not say it is absolutely identical to the MEUs. The MEUs all had their own control rooms?---I am aware they did, yes.
PN377
Did the SECV have control rooms scattered around, or were they more centralised?---I understand they were centralised.
PN378
So we go back to the creation of Solaris. There are five MEUs with five control rooms, involving professionals, but the old SECV customer services group, didn't have control rooms in the Solaris area, did they?---I don't think so. I am not aware.
PN379
And they covered the areas of Broadmeadows, but all of the growth, as you have said earlier, came from newer areas?
PN380
THE SENIOR DEPUTY PRESIDENT: No, I think his evidence was, he was prepared to say that there has been growth in Sunbury and - - -
PN381
MR GEORGIOU: At the time of the creation of Solaris, the geographical area covered by the MEUs, to your knowledge, was larger or smaller than that covered by the SECV at the time?---I couldn't tell you that here and now, because I haven't got that data.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN382
Don't mind doing the data on the number of employees, but not on the areas they covered.
PN383
MR PARRY: Just ask questions.
PN384
MR GEORGIOU: Was the SECV a State monopoly?---Yes.
PN385
But the MEUs, were they part of that monopoly?---The MEUs were not owned by the State - the SEC but they were - - -
PN386
Monopoly is not the right word, is it?---No.
PN387
No.
PN388
THE SENIOR DEPUTY PRESIDENT: Sorry, what did you say, the MEUs were owned by the State?---No, MEUs were owned by the local councils. The SEC was owned by the State Government.
PN389
MR GEORGIOU: When did the State monopoly cease to exist, that you refer to?---I haven't got the exact date here, but according to this document, I said, the Government decided to privatise the industry in 1993.
PN390
You know that or you are guessing?---That is what the research has showed us.
PN391
When was Loy Yang B privatised, Mr Deprinse?---I am not aware of that, I don't know when. I couldn't tell you.
PN392
Would it surprise you that it was before 1993?---It wouldn't surprise me, but I wouldn't contest it either.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN393
It was actually made by a Labor Government unfortunately. Privatisation occurred in 1993. What happened prior to privatisation, to your knowledge, do you know?---In what regards?
PN394
To the old SECV and the MEUs? You are the one that is giving us a history lesson?---Prior to 1993, SEC was a monopoly looking after all the electricity - - -
PN395
Had it been broken up, to your knowledge?---Prior to 1993?
PN396
Yes?---I don't think so.
PN397
When was it broken up, do you know?---About 1994, I understand.
PN398
How was it broken up? What happened? If you don't know, you don't know?---I don't know. I don't know.
PN399
You don't know. So A2 is - did you devise A2?---I had some people to help me devise that for me, yes.
PN400
Who helped you devise it?---Some colleagues that work for me and also some people from Fisher Cartwright Berriman helped me put it together.
PN401
Any of them come from the industry?---No.
PN402
And were around at that time?---I am unaware of that.
PN403
Have you ever heard of the Electricity Services Department?---ESC.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN404
ESV?---ESV.
PN405
Electricity Services Victoria?---No.
PN406
Hasn't even come up in the EBA negotiations, Mr Deprinse?---It has been mentioned but I know very little about it.
PN407
Would it surprise you that there was an enterprise agreement binding on your organisation, with regard to Electricity Services Victoria?---There may well be.
PN408
Right. When Solaris was formed, did you - did this research show you the enterprise agreements that were entered into at the time of the formation of Solaris?---I am aware that enterprise agreement was - an enterprise agreement was formulated at the time of formation of Solaris, yes.
PN409
Was it in State hands, or in private hands at that stage?---I understand it was in State hands.
PN410
So there wasn't an EBA with something called ESV, that you are aware of?---Could well have been, I can't attest to that.
PN411
And there was an enterprise agreement with Solaris when it was in State hands?---Once again, I think there was.
PN412
But in terms of the parent award coverage, you want to reduce all of these onerous awards and EBAs and simplify them down to one or two?---Correct.
PN413
Why do you want to get rid of all the other ones then?---Because administratively it is very time consuming for us, and that provides a lack of clarity unto what - the clear terms and conditions for our people are.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN414
So legally binding agreements that your organisation or its predecessors have entered into, are a bit onerous, are they?---No, not at all.
PN415
Have you got - can the witness be provided with the current EBA, if possible?
PN416
MR PARRY: It is his first exhibit.
PN417
THE SENIOR DEPUTY PRESIDENT: Do you have a copy of your statement and exhibits there, Mr - - -?---I don't have a copy of it. I have only got a copy of my affidavit.
PN418
MR PARRY: We will provide that, your Honour.
PN419
THE SENIOR DEPUTY PRESIDENT: That is all right.
PN420
MR GEORGIOU: Could you go to clause 4, Mr Deprinse?---Yes.
PN421
Clause 4(v)?---Yes.
PN422
You are negotiating this. Read it out?---Former Solaris Power, AGL Electricity and the Electricity Services Victoria Enterprise Bargaining Agreements.
PN423
So there was an ESV agreement?---Correct.
PN424
And you were entrusted by the company to negotiate it away?---No.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN425
Yes, you are, because you said, you wanted to get rid of it?---But our intent on the simplification of awards is to find out what are the significant clauses in those previous awards and agreements and put them all into one document. Not to undermine and to remove all those entitlements of our people.
PN426
So the negotiating team - who is your negotiating team, by the way?---Ms Sue Baker and Mr Paul Edwards.
PN427
And yourself?---And myself.
PN428
So before getting into this, you were given instructions to try to get rid of all of these and consolidate the good bits into the EB?---Incorrect. We weren't set out to get rid of all these. We are - our intent was to simplify the EBA, to reduce the amount of previous awards and agreements that it refers to. So everyone is clear on what the entitlements and terms and conditions are, and clarified it to as few as documents as possible.
PN429
So that was your brief prior to negotiating with the unions?---Well, not only was it our brief, it was our own intention.
PN430
So did you and Ms Baker and Mr Edwards sit down with these agreements and go through what was relevant and not relevant?---No.
PN431
What about with regard to the awards mentioned in (i), (ii), (iii), and (iv)? What do you know about the Power and Energy Industry Electrical, Electronic and Engineering Employees Award 1998?---I know a lot it. It is EEEE award. I can't recite it, but there is - it is - - -
PN432
Quite happy with it?---It is the award that we refer to, predominant award that we refer to in our day to day business.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN433
If a new employee starts under that award, and he or she is an electrical linesman, just finished his or her time, what classification level would you start them at?
PN434
THE SENIOR DEPUTY PRESIDENT: Where are we going with this, Mr Georgiou?
PN435
MR GEORGIOU: I want to find out whether there are bits of the award that the company feels are more precious than others, compared to the other awards and why they want to get rid of them. His evidence is that he wants to rely on one or two awards, and I want to find out why.
PN436
THE SENIOR DEPUTY PRESIDENT: They want to cut it back - they want to tie it back to two main awards.
PN437
MR GEORGIOU: Yes, I want to find out why and which two awards they are. He hasn't actually said at this stage.
PN438
THE SENIOR DEPUTY PRESIDENT: But what is the significance or relevance of it in terms of the - whether or not the parties - one, whether or not there is paid rates awards - relevant paid rates awards, or two, whether the parties can reach an agreement.
PN439
MR GEORGIOU: Well, he swears in his evidence that he knows it to be a paid rates award. And I want to find out how he knows that. I want to know how someone with as little a background as Mr Deprinse has in this industry, dealing with these classes of employees, knows some of the stuff that he has put in his statement. He swears that it is a paid rates award and I want to know why he - how he knows that.
PN440
MR PARRY: Well, is it going to be contested in this that the EEEE award, or 1980 - I am sorry - the 1989 award is a paid rates award? Is that in contest? I haven't been told that is in contest?
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN441
MR GEORGIOU: It is in contest.
PN442
MR PARRY: Well, then Commissioner Lewin's decision will become more relevant than perhaps the evidence of this witness, on his belief or not as to whether it is a paid rates award.
PN443
MR GEORGIOU: I haven't made any submissions in these proceedings with regard to the application. I did allude to it in my letter to you, your Honour, that I was challenging whether 170M - whatever it is - was the relevant bit, because I don't believe that the EEEE award is a paid rates award, and I want to know why this witness thinks that it is.
[10.30am]
PN444
THE SENIOR DEPUTY PRESIDENT: What difference does it make why he thinks it is. I mean if he thinks it is then I don't know that that even helps me but what difference does it make why he thinks it is?
PN445
MR GEORGIOU: Well, because the awards - the four awards mentioned are the basis of the - one of them, in particular, the EEEE award is the basis of the application made by the applicant and, this witness says, and supports the submissions - sorry, the contentions of the applicant that this award is a Paid Rates award and he swears that it is. He is their chief negotiator. He is the one that briefs them on the application before the Commission and the evidence he gives with regard to the negotiations - - -
PN446
THE SENIOR DEPUTY PRESIDENT: Well, ask him that question. Ask him how it is that he comes to that conclusion, but - - -
PN447
MR GEORGIOU: Well, I thought I had, your Honour.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN448
THE SENIOR DEPUTY PRESIDENT: No, you were asking him - - -
PN449
MR GEORGIOU: Not in those words - - -
PN450
THE SENIOR DEPUTY PRESIDENT: You were asking him what were the main awards that he wanted to tie the agreement back to.
PN451
MR GEORGIOU: Yes, but if we get down to - perhaps if I ask the question of the Paid Rates award up front rather than trying to say the classifications because the key issue is - the second key issue is Parent Award coverage.
PN452
THE SENIOR DEPUTY PRESIDENT: All right. Well, I don't know that we need to - - -
PN453
MR GEORGIOU: How do you know it is a Paid Rates award, Mr Deprinse?---I have been advised by a legal counsel and by numerous other people that the SECV award was a Paid Rates award and a EEEE was a Paid Rates award.
PN454
Was the Local Authorities' Interim Award 1991 a Paid Rates award?---No, I do not think so.
PN455
How far up the food chain, to put it in terms of classifications, did the EEEE award go - did it cover all employees, do you know?---No.
PN456
Do you know the scope of the Local Authorities' Interim Award and who was covered by that scope?---No.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN457
But you were aware of the proceedings before Commissioner Tolley, weren't you?---Correct.
PN458
Did you read the material with regard to the matters before Commissioner Tolley?---There was substantial material. I read most of it, yes.
PN459
Wasn't one of the key issues before Commissioner Tolley the coverage and scope of the Local Government award - it was, wasn't it?---I understand it was. One of the issues.
PN460
And you read that material but you do not know whether the Local Authorities' Interim Award covered all people?---Well, there was no decision, you know of that case.
PN461
I did not ask about a decision, I asked if you read the material. I did not ask you if you read the decision. You said you read the material - - - ?---Correct.
PN462
- - - was one of the issues in the material the scope and coverage of the awards?---I understand it was.
PN463
Thank you. You have not read all former Solaris Power EBAs I take it?---I have reviewed numerous of them, but I have not memorised them all.
PN464
And you have not read the - well, you cannot have read the ESV EBA because you were not sure that it existed. What other parts of the Parents Awards clause do you want to get rid of, Mr Deprinse, in the current negotiations?---What other parts of the Parent Award clause - we have drafted a new clause that you have seen on numerous occasions. It is in our draft EBA.
PN465
Which two awards do you want to keep?---The EEEE and the Victorian Local Authorities' Interim Award. They are actually stated on our new draft EBA.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN466
I have had so many drafts, I do not know which is the new one and which is the old one. You were involved in proceedings before his Honour in conciliation and some of it was on the public record - - - ?---Correct.
PN467
- - - and a document was produced in those proceedings that I have got marked as AGL3, which - I will show you what it looks like and I am - - - ?---Correct. I am familiar with that document.
PN468
The position - can we give the witness a copy of that document - - -
PN469
THE SENIOR DEPUTY PRESIDENT: Sorry, which document.
PN470
MR GEORGIOU: It is the one that was AGL3 before you, your Honour, that had the union's claim Agility and AGL Electricity Position Response, and the status of the claim.
PN471
THE SENIOR DEPUTY PRESIDENT: I am afraid I do not have a copy of that document here.
PN472
MR GEORGIOU: I am not going to give him this one because it has got some rude comments on it. Okay, rather than relying on it, in that document there is - would it surprise you to say that the issue of Parent Awards, and this is a document prepared for - by your organisation and is an exhibit in another proceedings, AGL3, it says:
PN473
The issue of the Parent Award has been agreed in principle.
PN474
Does that surprise you?---At the time we thought that it was agreed in principle.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN475
And what has happened subsequent to that time - have there been meetings since this document was tendered in the Commission?---There have been numerous drafts of that document. I am not sure which one you are referring to.
PN476
There is only one draft of this one, Mr Deprinse?---No, there has been - of drafts, there has been numerous drafts.
PN477
Well, there is only one being given to this side and there is only one marked AGL3?---Mm.
PN478
It says there, "Agreed in Principle", and the status of the claim - I will read it out:
PN479
This issue is subject to a final review of the deleted awards and preceding EBAs by Mark Georgiou, on behalf of the unions, and Paul Edwards for the companies, to ensure the new certified agreement covers all relevant employment conditions. Paul Edwards has reviewed the deleted awards and earlier EBAs and is ready to meet with Mark Georgiou and for this purpose is awaiting confirmation of the date for this meeting to occur.
PN480
And the union's claim in response, which is your words:
PN481
Agreed in principle.
PN482
?---Mm.
PN483
Would you say that there is a lot more work to do on that clause between the parties?---Correct, because I understand the next step was for yourself to meet with Paul Edwards and to go through that and grab those clauses out.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN484
Do you know whether we have met?---I know that you have met but I believe you have not gone through all those clauses and pulled out all the relevant clauses that you wanted to keep.
PN485
Do you know that or do you guess that?---I know that.
PN486
You have been advised of that - - - ?---Correct.
PN487
- - - by Mr Edwards, have you?---Correct.
PN488
But on the - the matter was only a couple of months ago - I have just got a date on that, I am sorry, it was agreed in principle - that is your company's words - - - ?---It was - - -
PN489
Okay, we get to the superannuation claim. There are different dimensions to the Superannuation Claim by the unions, aren't there?---Correct, yes.
PN490
There is the Salaried union's claim for TEC, total employment cost to be the superable salary; and then there were claims with regard to Shift Premiums and Weekend Penalties and Availability being included. How much was the cost - sorry, the company has conceded with regard to Shift Premiums, Weekend Penalties and Availability being included, what is the cost of that to the company?---Once again I do not know the exact dollar figures but they are fairly insignificant compared to the 3 million of the TEC claim.
PN491
Have you ever costed?---Yes. I have not personally, but someone else has and have brought me the information.
PN492
How many employees in the company receive Availability allowances?---How many - I do not know.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN493
Roughly?---It would be 40/50.
PN494
40 or 50 - roughly the same number as with regard to the - those under the claim by the Salaried unions. How many employees of the company receive Shift Premiums?---Something of the same order - 40 or 50.
PN495
Another 40 or 50. How many people in the company receive Weekend Penalties?---A slightly lesser number.
PN496
So we are looking at about 100 - just over 100 employees receive this. Most of those would be in the Defined Benefit?---Most of those people, yes.
PN497
Did you take long to negotiate that claim with the unions - the issue of the Shift Premiums, Availability and Weekend Penalty?---No. It did not take long at all.
PN498
Not take long at all - so there is over 100 people covered. There is an improvement to their final salary which improves the benefit they will receive under the multiples of the Defined Benefit and you cannot tell us how much that is - the cost to the company?---The cost to the company for implementing what we had proposed is a lot less than what the cost of the TEC one.
PN499
Roughly how much less?---It was in the - less than $100,000 a year I understand.
PN500
Less than 100,000.
PN501
THE SENIOR DEPUTY PRESIDENT: And that is the cost of the Penalties, is it, taking Penalties into account for - - - ?---The cost to the company to actually pay that amount, or to fund that.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN502
MR GEORGIOU: How much is the Availability allowance worth to an employee on an annual basis, roughly?---I do not know.
PN503
10,000 - 5000 - 3000?---Probably something around 5000.
PN504
5000 - the multiples for the superannuation fund on 5000 for those classes of employees would be roughly seven times final average salary?---The calculation for the super was different for those than it is for the TEC issue.
PN505
Was is it different?---Because we have calculated it differently.
PN506
The benefit is the benefit is the benefit, regardless. It is worked out on final average salary so it does not matter whether it includes Availability or Vehicles, is that correct?---It does make a difference.
PN507
How?---I am not the expert on superannuation. I have not done the calculations.
PN508
You have not done a bad job telling us about it. How - if a person's salary under the Defined Benefit is 50,000 and that is improved to 55,000 that employee receives the multiple benefit of that 5000 by seven, which is 35,000 by 100 employees is 3 and a half million?---It is not the way the calculation was done.
PN509
How was it calculated, Mr Deprinse?---I do not have the information in front of me.
PN510
Can you get this information?---I probably could, yes.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN511
Could you provide it to this Commission and to us so that we can have a look at it?---How we have calculated the superannuation?
PN512
For both classes of employees?---Mm.
PN513
The Power Industry allowance. Roughly was that worth, Mr Deprinse?---That was in a previous EBA. I am not aware of what the Power Industry allowance was.
PN514
Just - was that worth about $5000 as well?---I am not sure.
PN515
Was that included in the Salaried for those employees receiving the Power Industry allowance?---Correct, that was rolled into their salary in the previous EBA.
PN516
And what was that worth, Mr Deprinse?---I could not tell you that.
PN517
Can you provide those figures?---I can if you like.
PN518
Would it surprise you that the costs for the superannuation of those claims far exceeds that for those of the TEC employees?---I do not what the dollars are, so I could not say.
PN519
Okay. Would it surprise you that the cost of the TEC claim for the Salaried employees has been reduced to a claim for about 15 employees only?---No, I have not seen that fact. I still understand it is about 50 people.
PN520
Does Ms Baker report to you on the progress of discussions with Mr Harrison?---Correct.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN521
Okay. Introduction of change - what is the impasse between the company and the unions there?---Introduction to change - we would like to implement change and before we do so we consult with the unions and the unions would like to retain the existing clause where it says, "We will get agreement before we implement change".
PN522
How long have you had a clause that says you need to reach agreement with the relevant union on change?---It has been there for a number of EBAs. I could not tell you how many years, but it was in the previous EBA.
PN523
In your research, have you ever found that clause to be used by any union against the company to stop change?---We have been able to work well with the unions to get around that to implement change but we have had that clause suggested to us on numerous occasions that, "Don't forget you have got to get that clause changed before you make any changes".
PN524
Have you been briefed by anyone about other proceedings that have occurred in this Commission on similar applications?---With other power companies?
PN525
Yes?---I have been briefed on the general status of how they are going, yes.
PN526
Were you aware that that clause was a contentious clause with all of the other distribution businesses that were before this Commission?---Yes.
PN527
Are you aware that all, except one who has been a bit difficult, but three of the four applicants all reached agreement with the ASU and ourselves on this clause?---I have not heard that in exact details but I understand that it is the case.
PN528
Have the unions offered to make reference to the Disputes Settlement clause - the Disputes Settlement clause and the Change clause?---We have had numerous discussions about that, yes.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN529
And have the unions conceded that a dispute over that clause could come to this Commission?---There has been wavering discussions and it has gone both ways from my recollection. We have not had a clear understanding of where it has gone.
PN530
When you present a position to the unions is the position put by the company decided in advance by the negotiators?---Yes, we have tried to have a clear strategy before we enter into it, I understand.
PN531
Do you recall a meeting out at Broadmeadows - - - ?---Yes, I do recall a meeting - - -
PN532
You knew where I was going, didn't you - you are a wise man, Mr Deprinse - do you recall a meeting that discussed the Disputes Settlement clause?---I remember that well.
PN533
How many positions were put by the company on the Disputes Settlement clause that day?---My recollection was there was discussion about whether the final point on the Disputes Resolution procedure should enter into - whether we enter into arbitration or conciliation. There was a lot of discussion.
PN534
Look it was a bit humorous. So tell us what happened, Mr Deprinse - - -
PN535
MR BORENSTEIN: Let us kill more time.
PN536
THE SENIOR DEPUTY PRESIDENT: Is it relevant to - - -
PN537
MR GEORGIOU: It is relevant to whether the negotiators for the company have put a consistent position to the unions that they can respond to or whether they have put ambiguous positions to the unions on various matters so that the delays in reaching agreement are caused by the ambiguous positions of the company.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN538
THE SENIOR DEPUTY PRESIDENT: No doubt both sides have changed positions throughout the negotiating process as part and parcel of trying to achieve - - -
PN539
MR GEORGIOU: Well, your Honour, you do not know that. This Commission does not know that and on this issue one - and that is what I want to put to the witness, is one - - -
PN540
THE SENIOR DEPUTY PRESIDENT: What - are you saying that the unions have not changed their positions at any time?
PN541
MR GEORGIOU: We have never had the ETU put position A - the ASU put position B and APESMA put position C.
PN542
THE SENIOR DEPUTY PRESIDENT: No, no, no. I am talking about making concessions and changing - - -
PN543
MR GEORGIOU: My question goes to whether, at that meeting, different positions on what the company wanted were put by the company. In other words we were not able to ascertain what the company's position was.
PN544
THE SENIOR DEPUTY PRESIDENT: I will allow the question but I do not want to hear the story just because you think it might be humorous, Mr - - -
PN545
MR GEORGIOU: No, I did not - I was trying alleviate - Mr Deprinse did smile before he gave his response - - -
PN546
THE SENIOR DEPUTY PRESIDENT: Yes, all right, well - - -
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN547
MR GEORGIOU: Go on?---Well, for about - at one stage one member of the negotiating team says, "We prefer arbitration, the other one said, 'conciliation - there was a big raucous and uproar by the unions. I actually got my team and said we will have some time out. We stepped out of the room. We got our position clear. We went back in and there was only ambiguity for less than 5 minutes is my recollection and we were very clear on - - -
PN548
And what is the position of the - - - ?---- - - we made it very clear to the unions when we stepped back, what our position was. There was not - - -
PN549
And what is your position - what is your position?---As per the draft EBA now - that it is conciliation.
PN550
Conciliation. Have you discussed since then that it could be by arbitration as well with the ASU and ourselves?---If some other matters fall into place we would look at it because it is not a bigger issue as, say, the 36 Hour or the superannuation issues.
PN551
So with negotiations your position changes?---Not for any - we will not change for - to be difficult.
PN552
THE SENIOR DEPUTY PRESIDENT: Isn't that part of the process of negotiation, Mr - - -
PN553
MR GEORGIOU: That is my point entirely, your Honour. That as we negotiate more and more we get closer to consensus and the contentions of the company that there is no prospect of reaching agreement is false. On the issue of Long Service Leave - how - that is one of your key issues there. How long do you reckon it would take us to sort that out, Mr Deprinse, if everything else was in place?---We have said that is a low priority issue and while it is not agreed in the fullness of time, if a whole lot of other things get agreed that may well come out of the whole package - as part of the whole cost of the whole package.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN554
Would you hold up agreement for the EBA on that issue of the union's claim?---No. We would not.
PN555
The introduction of contracts of employment, Mr Deprinse, there has been provision - you have gone through the previous EBAs. There is provision in the previous EBAs for an employment agreement to be provided to employees. Has that ever caused a problem to the company in the past?---It has caused ambiguity with certain people.
PN556
Give us some examples of this ambiguity?---I have had people ask me is this a formal letter of contract, or is this an employment letter. People have been - there has been some ambiguity in that area about what their full terms and conditions are.
PN557
I did not understand. Is this new starters to the company or existing employees?---Existing employees.
PN558
And they do not know what their contract is?---They have asked for clarification on it.
PN559
On which points in the contract?---Not any specific ones.
PN560
But there has been no problem with the existing clause in the EBA, to your knowledge?---Not ground breaking ones that cripple the company.
PN561
So the current clause has worked reasonably well?---It has had its difficulties. It has caused administrative hassles and slowed us down. We would like to clear it up to provide clarification to our staff.
PN562
What do you want?---Pardon?
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN563
What do you want then?---We want - - -
PN564
If you want to change the current clause what do you want?---We want people to be very clear on what their terms and conditions of employment are.
PN565
What do you want in the EBA?---What do we want in our EBA - what is in our draft EBA - that is what we want in our EBA - what is in our draft agreement.
PN566
Have you not conceded to the unions that you want a similar clause to that contained in another enterprise agreement at Power Call?---No.
PN567
Have you had separate negotiations with the Salaried unions compared to the ETU?---We have had separate negotiations with APESMA and the ASU. Yes, we have had separate negotiations with the ETU.
PN568
And have the ASU and APESMA decided to drop the 36 week claim?---Correct.
PN569
So it is not a dispute between the parties so there has been movement on the part of some of the unions with regard to that - but the key issue with regard to APESMA and the ASU is the issue of TEC for super?---Correct.
PN570
The rest could probably fall into place?---They are lower priority issues. yes.
PN571
So that is the key issue?---Yes.
PN572
And with regard to the ETU it is the 36 and the Contractors?---I would say the 36 is the key issue.
**** EDWIN WILLY DEPRINSE XXN MR GEORGIOU
PN573
So the Contractors is - - - ?---Is a lesser priority.
PN574
Thank you. I have got no further cross-examination.
PN575
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Georgiou. Yes, Mr Borenstein.
PN576
PN577
MR BORENSTEIN: Mr Prance, is it correct to say that you are not happy with the current 36 hour clause proposed by the ETU?---Correct - which, sorry, which clause when you say that?
PN578
The 36 hour - the claim for 36 hours?---Correct. We would prefer not to have a 36 hour working week.
PN579
Okay. And was it correct that you said that at the meeting of the ETU offices regarding the Contractors' clause that you were happy with the Contractors' clause?---I cannot remember the exact wording because we said - - -
PN580
I think your evidence was that you were - you said you were happy with the Contractors' clause?---Words to that effect, yes.
PN581
So on the one hand you are not happy with the hours of work which links to the fact that you do not agree to it, but then when you say that you are happy with the Contractors' clause wouldn't it be reasonable to assume that that means you have agreed to the Contractors' clause?---When I say, "Happy with it", happy with the level of negotiations, not happy as in we are happy to sign it - we have signed off a formal agreement - they are two specific things.
**** EDWIN WILLY DEPRINSE XXN MR BORENSTEIN
PN582
Happy with the level of negotiations, is there some level classification level for negotiation?---With respect to the Contractors' clause?
PN583
Yes?---We had a very fruitful meeting with the ETU that day.
PN584
But when you reach a final set out - when you reach a set of words and you say, "We are happy with that"- - - ?---Mm.
PN585
- - - isn't it reasonable to assume that that means you are happy with the words and not the actual level of negotiations?---No. That was not a formal agreement, and a formal sign-off and further to that I contend that the words that we wanted to add, "Would not be unreasonably withheld", are not overly onerous words that we wanted to add to it that would change the intent or the scope of the Contractor clause as we proposed it.
PN586
Well when you have a set of words in front of you and say, "We are happy with those words"- - - ?---Mm.
PN587
- - - you did not then say, "We are happy with that except we want to add another sentence to it"?---Well, we had only just drafted it in that half hour.
PN588
That is all right but you had discussed the words?---Yes. We discussed them at that meeting.
PN589
And you said you were happy with them?---Words to that effect. Yes.
PN590
So then it is fair to say isn't it, the AGL did back track on its position from that meeting?---I do not - I do not agree with that. I do not agree that we back tracked. We did not change the intent or the scope or any of the clauses. We did not remove any clauses. We just wanted some other lines added.
**** EDWIN WILLY DEPRINSE XXN MR BORENSTEIN
PN591
Well, it is a bit like saying that if the union said it is happy with your Introduction of Change clause except that we want to add the word, "Agreement", instead of just "Consulting", I mean it is exactly the same as that?---Not to me, it is not.
PN592
Now with respect to the Introduction of Change are you willing to - if there is a dispute about Introduction of Change are you willing to have that matter to the Industrial Relations Commission?---I understand that is where the - our draft agreement goes to now.
PN593
So you are willing for the Commission - so, there is consultation and agreement and if agreement cannot be reached it can come to the Commission to be arbitrated on?---No, no. Our position - our position is we would like it just to go to consultation and not have agreement.
PN594
Well, then if the word, "Agreement", is not in there - - - ?---Mm.
PN595
- - - what is the Commission to do when it comes to the Commission?---We would like to have a level of consultation - - -
PN596
Yes?---- - - and once we have consulted the changes then we implement them.
PN597
And if there is a dispute over the changes, what occurs?---The dispute - then the Dispute Resolution clause kicks in.
PN598
And what - we come to the Commission for what?---For conciliation.
PN599
And if we cannot reach a settlement?---We reach an impasse I suppose, as we have now.
**** EDWIN WILLY DEPRINSE XXN MR BORENSTEIN
PN600
And what occurs?---We follow the Commission's directions or we - - -
PN601
So you are you saying that you would agree to follow the Commission's recommendations on the matter?---Depending on what they are, yes.
PN602
If they are favourable will you follow them, if they are not - - - ?---Yes.
PN603
Would that give you much comfort if you were in our shoes, as the union?---Probably not, but we do not have a proven track record of having lots of disputes or having irreconcilable disputes either.
PN604
So why wouldn't you be willing to say, "Well, if we cannot reach an agreement on this Introduction of Change, why cannot we come to the Commission and have the Commission solve the matter"?
PN605
MR PARRY: If the Commission pleases. One does not come to the Commission and negotiate and put up positions and say, "What do you think of that, what do you think of that?", in this sort of proceeding. The authorities are to the effect that it is a fairly pointless exercise to be speculating about possibilities. We accept that the course of negotiation what has occurred is relevant, and what the parties have put should be given, but this is really a fruitless line of cross-examination and it is not going to be of assistance to the Commission, as it was not of any assistance to Commissioner Lewin in the Yallourn Energy matter, if the Commission pleases.
PN606
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Borenstein, I have to say even - I mean I was feeling the same, or it seemed to me when Mr Georgiou was asking questions, what was being asked were all very relevant issues or topics for negotiation but hardly, as I see it, relevant to the issues before me.
**** EDWIN WILLY DEPRINSE XXN MR BORENSTEIN
PN607
MR BORENSTEIN: Well, as see it as going, firstly to whether there is a reasonable prospect of reaching agreement to see whether the actual attitude of the company has been somewhat reasonable or obstructive and that matter also goes to the discretion that the Commission has under section 170MW(1) about whether it should or not terminate or suspend the bargaining period.
PN608
THE SENIOR DEPUTY PRESIDENT: Well, I see the topics themselves, or the issues themselves, as to whether or not there has been agreement reached, or what the prospects of reaching agreement in respect of any of the issues outstanding is irrelevant, but to say, well, whether or not we would come to the Commission and what we would do when we get to the Commission they are all matters that ought to be discussed I think in the process of negotiation but not raised here in this type of proceeding.
PN609
MR BORENSTEIN: Well, I suppose I was raising in front of the Commission the fact that the company is seeking an indulgence of the Commission to take away rights from the unions to take - and its members to take protected industrial action. Now, if the company is asking unreasonably we would submit that the Commission should take that into account in determining whether or not it should award the company with such an indulgence. But I hear the Commissioner's point and I try and minimise the questions.
PN610
Can I just quickly turn to the 36 hour week which you say is the main issue. With the ETU is that the main issue and the others would - if that could be solved the others would most likely fall away?---Well, when you say the others fall away, would we automatically concede them. I don't think that is the issue but I - - -
[11.00am]
PN611
What do you expect?---They are lower priority issues and the 36 hour is what is stopping us coming to agreement with the others.
**** EDWIN WILLY DEPRINSE XXN MR BORENSTEIN
PN612
Now, you said that you wanted the 36 - you would only accept the 36 hour week if it was cost neutral?---Correct.
PN613
Have you done costings for the 36 hour week?---Correct.
PN614
Have you provided that to the unions?---We have had numerous discussions with the union and we have put scenarios up on whiteboards and we have discussed with the unions the principles and some of the details.
PN615
But the actual 36 hour week costings, have you provided those to the unions?---Verbally but not in writing, no.
PN616
So you haven't detailed how those costings are calculated?---No.
PN617
Have you seen such costings?---Yes.
PN618
You actually understand how they are calculated?---Yes.
PN619
And what do you say that the percentage costing was?---We have done calculations to determine what the cost of the 36 hour week if it was taken in minutes off and we have done a costing to determine what the 36 hour cost to the company is if it was days off and our calculations show there is a different - number of different scenarios but on average the minutes off one would be 5 per cent and the days off one would be in excess of 6 per cent. That is the cost in wages. On top of that the other cost that we have is that whatever contract companies we have they would have incurred - they would incur greater costs as well, which would flow on to us.
PN620
Why would they incur greater costs?---Because the contracting companies have indicated to us if we go for the - if we get the 36 they will too and they would have to pass their costs onto us.
**** EDWIN WILLY DEPRINSE XXN MR BORENSTEIN
PN621
But they are independent companies, aren't they?---Correct.
PN622
And they sign whatever agreements they determine to sign?---Correct.
PN623
That is right?---They have indicated to us that they would pass that increased cost onto us.
PN624
Well, that is their choice. You don't have to accept that increased cost, do you?---We don't have to but there is only a limited amount of contractors there and - - -
PN625
THE SENIOR DEPUTY PRESIDENT: It depends on whether they are contractors on your list or not.
PN626
MR GEORGIOU: Has the union talked to you about sacrificing their wage increase in order to enable the 36 hour to - - -?---There has been some discussions on sacrificing some of the quantum for the cost of the 36.
PN627
And in respect of your costings are you aware that other companies such as Powercor have costed a 36 hour minutes at significantly less than 5 per cent?---I am not aware of that.
PN628
So would AGL be willing to accept the 36 hour week if it can be shown the cost of it - if the cost was taken off the wage increase? Sorry, I withdraw that. Would AGL be willing to accept a 36 hour week where the cost of the 36 hour week was taken off the wage increase?---The wage increase is one element but if it is cost neutral to the business then we would consider the 36 hour week.
PN629
Well assuming the 36 hour week was off the table and the company accepted, say, 15 per cent wage increases, then you would be in the same situation, would it not, if the 36 hour week cost 4 per cent, that the union has got 11 per cent, plus a 36 hour week?---But you have made the assumption that the company has 15 per cent quantum to give, where we have maintained it as - - -
**** EDWIN WILLY DEPRINSE XXN MR BORENSTEIN
PN630
I have made that assumption, but assuming that is correct, would that be acceptable?---By a mathematical calculation it would be easy to show that, correct.
PN631
So really in respect of the 36 hour week and the wage increase it is just about trying to find a balance between the amount of the wage increase and the cost of the - trying to meet the cost of the 36 hour week?---Yes, but as you are aware we have proposed implementation of rosters or other productivity measures to help offset that.
PN632
Well, they provide extra savings for the company so they would reduce the cost of the 36 hour week?---Correct, or help increase the pay - help with the pay increase.
PN633
Can I take you to - I think it is A2, which was handed up. I think it is correct - I think that is - have you got it?---The history of the SECV?
PN634
The history?---Yes.
PN635
Now, was it correct that you had others prepare this document?---Yes.
PN636
And I think you said that you didn't know whether those others had been involved at the SECV, the MEUs or Solaris back in - between '94 to '96; is that correct?---Sorry, what was your question, that - - -
PN637
The people who prepared this document - - -?---Yes.
PN638
- - - weren't around in 1994 to 1996?---Correct.
**** EDWIN WILLY DEPRINSE XXN MR BORENSTEIN
PN639
Now, can I take you to the last paragraph where it says:
PN640
The remaining 85 per cent of employees were either employed by the SECV at that time or have been employed by Agility Victoria since that time.
PN641
So that doesn't say, does it, that 85 per cent of the employees are from the SECV?---No.
PN642
No. There could be 5 per cent possibly, couldn't there?---Could - could be but I doubt it.
PN643
Well, you don't know?---Mm. We could do the numbers to find out.
PN644
No, but you don't know that?---Not - - -
PN645
At the current time you don't know, do you?---Not right here and now, no.
PN646
And I put to you that at the date that Solaris was informed - was formed, the clear majority of employees were transferred over from the MEU - MEUs, sorry?---Well, I don't know that as a statement of fact.
PN647
And I also put to you that Solaris - the clear majority of Solaris' customers were contained within the regions of the MEUs at the time of formation; do you agree with that?---No, that would surprise me but I have got no - haven't done the research and don't have the evidence here to agree or deny that.
PN648
Why would that surprise you?---Because I was under the understanding that the SECV area was larger in number of connections than the MEU, but I won't attest to that or - - -
**** EDWIN WILLY DEPRINSE XXN MR BORENSTEIN
PN649
Now, you say you have a concern that industrial action will damage the prosperity of the company?---Yes.
PN650
So are you saying that the industrial action is influencing the way the company is operating?---Correct.
PN651
And does it influence the way the company negotiates the certified agreement?---It has an impact on how we negotiate, yes.
PN652
And if it continued to damage the prosperity of the company I suppose it would continue to have an effect on the way that the company operates and the way it negotiates its EBA?---Correct.
PN653
No further questions, your Honour.
PN654
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Borenstein. Do you have any questions, Mr Henderson?
PN655
MR HENDERSON: No, thank you, your Honour.
PN656
THE SENIOR DEPUTY PRESIDENT: Thank you. Any re-examination, Mr Parry?
PN657
MR PARRY: No, your Honour.
PN658
PN659
PN660
MR PARRY: If your Honour pleases. Your full name is Paul Edwards?---That is correct.
PN661
And your address is (address supplied)?---Yes.
PN662
Where are you - who employs you, Mr Edwards?---I am self-employed with my own company and currently engaged with Agility.
PN663
And in your self-employment what sort of work do you do?---An employee relations consultant.
PN664
And what sort of level of experience do you have in that area, Mr Edwards?---I have been in employee relations for nearly 30 years and worked all over Australia and most parts of the world.
PN665
And have you been involved in the negotiation of enterprise agreements before in various industries?---Yes.
PN666
Have you been involved in the negotiations that have been taking place between Agility and the unions here today?---Yes.
PN667
Have you prepared an affidavit which sets out the - your involvement in those negotiations?---That is correct.
PN668
Are the contents of that true and correct?---They are.
PN669
**** PAUL EDWARDS XN MR PARRY
PN670
MR PARRY: If the Commission pleases that is the evidence of Mr Edwards.
PN671
PN672
MR GEORGIOU: Have you got your statement in front of you, Mr Edwards?---No.
PN673
I just want - paragraph 53 - and I have only got the draft - I haven't got the sworn statement. It doesn't make any sense to me so can you tell me what it means?---It means exactly what it says and that is that in my opinion that - I don't believe that we are in a position to reach agreement on a negotiated settlement.
PN674
Mine says singular, so is it directed at one union or is it the three unions?---It is the three unions.
PN675
So it should be unions. I just needed that clarified. Mr Edwards, you have done lots of EBAs?---Yes.
PN676
Any in the electricity industry?---Yes.
PN677
Whereabouts?---Australian Inland in New South Wales.
PN678
So in New South Wales, Australian Inland. Who does that cover?---It covers geographically about a third of the state.
PN679
It is a big state with a lot of desert so can you pinpoint it a bit more?---It is a company around about the size of Agility, about 240 employees with a geographic spread of about a third of the state.
**** PAUL EDWARDS XXN MR GEORGIOU
PN680
Your background is mainly in the mining industry?---Predominantly in the mining industry, yes.
PN681
Who engaged you for this EBA?---AGL.
PN682
AGL?---Yes.
PN683
In Sydney?---Yes.
PN684
Did they brief you on previous EBA negotiations?---Yes.
PN685
What did they tell you?---To the extent that I - they gave me the minutes of the previous EBA and a copy of the previous EBA which I read prior to coming to Victoria.
PN686
How long did the previous EBA take to negotiate?---I believe it took a number of months to negotiate.
PN687
And what is a number of months, can you be a bit more precise?---From the - just from my reading I think probably five or six.
PN688
Five or six. Did AGL start these negotiations - when did AGL start these negotiations?---I think it was 11 November from memory.
PN689
And when was the second meeting?---A number of weeks later.
PN690
When did the company receive the log of claims?---They received the log of claims round about September.
**** PAUL EDWARDS XXN MR GEORGIOU
PN691
Have you seen the log of claims and the letter that accompanied it?---Sorry?
PN692
Have you seen the log of claims and the letter that accompanied the log of claims?---Yes.
PN693
Did it invite the company to commence negotiations immediately?---It invited the company to commence negotiations, but my recollection of it is that that was when it was convenient for all the parties to meet and that the unions were negotiating and had been negotiating with four other companies and so the time frame was somewhat limited.
PN694
How do you know that?---Because you told me.
PN695
When?---During the Melbourne negotiations. When you accused me of delaying the matter in Melbourne and we pointed out that the delay - we accept the fact there was some delay but also there was some delay on the part of the unions as well.
PN696
So you called the first meeting - AGL that is, sorry?---That is correct.
PN697
On the 11th of when?---November.
PN698
November, but you had it in September. Was any - were there any communications prior to that?---Yes.
PN699
And?---And we were looking at availability.
PN700
When did the first contact occur, closer to November or closer to September?---Closer to September. September was nearly over when we received it, probably October.
**** PAUL EDWARDS XXN MR GEORGIOU
PN701
What was your role - what was your brief with regard to these negotiations from AGL?---From AGL - Agility didn't have a human resources person in Victoria with Agility specifically. They have since engaged Ms Baker and my role was to assist the management team at Broadmeadows with the EBA.
PN702
Who was on the management team?---At Broadmeadows?
PN703
Wherever?---Yes, the senior manager is Ed Deprinse and there were a number of other managers at Broadmeadows.
PN704
Who else?---John Gardner, Bill Estaugh and various others.
PN705
Mr Estaugh as well?---Yes.
PN706
Did he brief you on the previous EBA?---I have had a number of discussions with Mr Estaugh, yes.
PN707
What did he tell you? Was it a long haul or a short haul?---He said that it was a typical negotiation, that it went along as they had gone previously and the company basically agreed on a dollar amount but for very little trade-off at that time.
PN708
Did you attend any proceedings in this Commission before Commissioner Tolley?---No. Sorry, I was - I didn't participate but I attended.
PN709
I said attend, yes?---Yes.
PN710
And you were aware of some of the issues raised in those proceedings?---On the basis that I only attended one day.
**** PAUL EDWARDS XXN MR GEORGIOU
PN711
Did you and I have discussions during those proceedings about the forthcoming EBA?---Yes.
PN712
What did we discuss?---We discussed the fact that it was probably going to be difficult, given the fact that the outcome of the Commission was that it was out of jurisdiction to deal with the matter.
PN713
We didn't know that at the time, Mr Edwards; that decision came after - well after?---Well, we had a discussion that it was going to be difficult.
PN714
What were the issues we decided were going to be difficult?---Well, the issue before Commissioner Tolley was superannuation.
PN715
Any other issues?---Not that I recall.
PN716
Can I to the issues - you have read the statement of Mr Deprinse?---Yes.
PN717
And you reckon it is fairly accurate and - - -?---As far as I know, yes.
PN718
Okay. The issues between the parties according to Mr Deprinse - - -?---Can I have a copy?
PN719
Do you agree it is in - I will find it somewhere?---'96.
PN720
'96, I am not that quick. Do you agree that they are the issues between the parties?---Yes.
PN721
When you first started negotiating with the unions who was part of the negotiating team for the company? Who were the negotiating team for the company when negotiations first started?---When they first started it was Ed, myself and Brad Griffith from Sydney.
**** PAUL EDWARDS XXN MR GEORGIOU
PN722
THE SENIOR DEPUTY PRESIDENT: Ed meaning Mr Deprinse, is it?---Yes, Mr Deprinse.
PN723
MR GEORGIOU: What is Mr Griffith's role?---Mr Griffith is the HR Manager for Agility, including Victoria - Agility New South Wales as well.
PN724
Has he attended all of the hearing - all the hearings - all of the negotiations?---He has attended I think it was three of the negotiations, yes.
PN725
Why did he drop off, do you know?---No, I think various other work commitments.
PN726
He works for AGL Corporate in Sydney; is that right?---That is correct.
PN727
And does he oversee the progress of these negotiations even today?---He certainly is involved in report backs, yes.
PN728
If we go to the issue of superannuation - - -?---Yes.
PN729
- - - and the TEC claim. Have you done any work on that claim?---Yes.
PN730
What sort of work have you done on it?---I have looked at all of the various policies and also looked at the costings.
PN731
Do you think that this issue is not capable of negotiation?---Not within this EBA, no.
PN732
But it is capable of resolution?---It is capable of resolution but outside of these proceedings. It is capable of resolution simply through either variations in people's personal remuneration or through AGL varying, I suppose, individual arrangements with individuals.
**** PAUL EDWARDS XXN MR GEORGIOU
PN733
Are you saying that the company does not want to resolve it as part of this EBA, but is capable of resolving it?---What I am saying is the claim the way in which it is put would be cost prohibitive in terms of these negotiations.
PN734
Since the last time we met on this issue has any further work occurred by AGL or any of the negotiating parties on this issue?---Yes, on my understanding, yes.
PN735
Have you done any work on it?---I have just done some more work on the vehicle policy and actually gave you a copy of it and you were going to get back to me but you haven't.
PN736
I haven't got it, Paul?---Yes, you have, I e-mailed it. You requested it by e-mail.
PN737
Sorry, I haven't got it. I am just saying that as an aside. Don't take it all to heart there. The amount you receive you can just calm down a bit. So the issue of the superannuation is capable of being resolved but outside of the EBA?---I think so.
PN738
Okay. The parent award coverage, have you and I gone through all the previous EBAs?---I have gone through a mountain of EBAs.
PN739
Have you and I gone through?---Yes.
PN740
And have we selected all of the relevant clauses and ticked them off?---Well, I thought we had but you now claim that we haven't the last time we spoke and - - -
PN741
Have you and I - let us not question - have you and I gone through all of the previous EBAs and agreed to which clauses are relevant to be included in this EBA?---We have gone through a number of EBAs, yes.
**** PAUL EDWARDS XXN MR GEORGIOU
PN742
Did that occur at my offices?---Yes.
PN743
A nice cup of coffee as well?---My shout.
PN744
Yes, it was. So we have had negotiations independent of the negotiating team?---Yes.
PN745
And you and I were able to more or less agree on the parent award and the EBAs?---Yes.
PN746
So the superannuation is capable of being resolved and we have reached agreement in principle?---Not as part of this EBA.
PN747
I know that. No, no, no, but it is capable of being resolved. You are aware of this document which is AGL3?---Yes.
PN748
Do you agree with the comments that - were you in the Court when I cross-examined Mr Deprinse?---Yes.
PN749
On the issue of the simplified EBA in relationship to parent awards it says they are under union claim response agreed in principle. Do you think that is fairly accurate?---I think that was an accurate statement at that time, but since that time you have raised other issues.
PN750
Have you got any evidence of that?---I just told you, right up until the very last meeting before his Honour.
PN751
What?---You simply said was that all - the parent award was not resolved and that there were other things such as Pulse and all that were now back in.
**** PAUL EDWARDS XXN MR GEORGIOU
PN752
You said agreed in principle?---I said at that time I thought that was a correct comment.
PN753
How many meetings have been held since this document was produced between - - -?---Well, it only takes one meeting for you to come back to me and say that it is not agreed.
PN754
On the issue of long service leave - - -?---Yes.
PN755
- - - are we close to reaching agreement?---I think the question of long service leave could be resolved if we could resolve the entire package.
PN756
The contract of employment clause?---No, I don't believe we are close.
PN757
Where are we apart?---We are apart on the basic principle of the management's right to manage and the union's requirement for the veto.
PN758
On the contract of employment?---On the contract.
PN759
Have you - - -?---Sorry, on the - - -
PN760
- - - contract of - the employment agreement?---Oh, the employment agreements.
PN761
Yes?---I thought we were close. We put a compromise into the EBA which I thought was acceptable.
PN762
You are familiar with the current clauses in the EBA with regard to employment agreements?---Yes.
**** PAUL EDWARDS XXN MR GEORGIOU
PN763
To your knowledge or any briefings you have received has there been any difficulty with the employment agreements or contracts to date?---Yes.
PN764
What are they?---A lack of clarity and some interpretations of those contracts. Certainly during the negotiations - - -
PN765
I will ask the question again. With regard to the clause in the current EBAs has there been any difficulty with the clause, not with the contracts?---With the clause?
PN766
Yes?---Well, if there is a difficulty with the contracts it is as a result of the clause. The clause leaves a degree of ambiguity in terms of interpretations of the contracts.
PN767
Have you got a copy of the current EBA? Can he be given a copy of the current EBA. It is clause 37, Mr Edwards. What is the problem with it?---The problem as I understand it that came out of the negotiations was in relation to - - -
PN768
That is not my question, Mr Edwards?---Well, the answer to your question lies in the result of the clause. You can say - if you are asking me about the specific clause then at best I can say well, it is - there is no spelling errors.
PN769
What parts of it are ambiguous, Mr Edwards?---The ambiguous, as I said to you before, lies in the overall diminution of wages, conditions and benefits and that is where there seems to be a lack of clarity and that is why we addressed it as part of the negotiations.
PN770
When the previous negotiators who you spoke to spoke about this clause did they say that they were uncertain or ambiguous or that they didn't understand what it meant?---I didn't speak to the previous negotiators about that clause.
**** PAUL EDWARDS XXN MR GEORGIOU
PN771
So it wasn't an issue that was raised that needed to be addressed?---No, I said I didn't speak with the previous negotiators. It was an issue that was raised and needed to be addressed as part of these EBA negotiations.
PN772
Who raised it and needed it to be addressed?---Agility.
PN773
Agility who - Agility is a bit broad for me?---The management team.
PN774
Mr Deprinse?---Mr Deprinse.
PN775
Mr Beech?---No, not Mr Beech, no.
PN776
Mr Griffith?---No, no, Mr Beech - sorry, Mr Deprinse's management team.
PN777
Who were?---Mr Gardner and Mr Estaugh, etcetera.
PN778
They were all around for the previous EBA?---Mr Estaugh was. I am not sure that Mr Gardner was.
PN779
Mr Estaugh negotiated the previous EBA, didn't he?---I think he was involved in it, yes.
PN780
He was one of the negotiating team?---Along with a number of others, yes.
PN781
And he agreed to that clause?---My understanding, yes.
[11.30am]
**** PAUL EDWARDS XXN MR GEORGIOU
PN782
How long have the negotiations - the meetings that have taken place, roughly how long do they go for?---They can go from anything from 30 minutes to 5 hours, 6 hours.
PN783
Not with me though, you haven't been to a meeting with me for 5 hours?---No, I was referring to 30 minutes is probably you, Mr Georgiou.
PN784
That is fine. Is that common in your experience of EBA negotiations, that the meetings vary to that degree?---No.
PN785
Are they longer here or shorter?---They are - some of them are much shorter than I have ever experienced but the 5 hours I think is a reasonable period of time for a negotiation.
PN786
Those meetings that we have had at the Tullamarine in - and the other one out at Tullamarine, have they gone for more than a couple of hours?---On occasions, yes.
PN787
Which do you see - so the long service leave is capable of being resolved, do you think?---It may be resolved in a total package.
PN788
And wage increase we haven't discussed?---Well, wage increase we have discussed and at the present time they are unresolved.
PN789
The hours of work is an impasse?---The hours of work is unresolved.
PN790
It is unresolved for all unions or - - -?---It - well, it is unresolved with the ETU, it is not an issue with the APESMA and the ASU because they have dropped the hours of work however they have replaced it with an additional wage increase which is unresolved.
**** PAUL EDWARDS XXN MR GEORGIOU
PN791
Right. Parental leave is unresolved?---Unresolved.
PN792
Huge impasse or - - -?---Well, it is unresolved.
PN793
Right. Why is it unresolved in your view?---Because AGL have a national standard that they apply which is 12 weeks for paternity leave.
PN794
Maternity?---Maternity leave and 1 week for paternity leave. The union claim was initially 17 weeks and 2 weeks.
PN795
It was originally 52 weeks just to clarify?---But no, AGL have a national policy which is 12 and 1 and as we have said throughout the discussions, that is the policy.
PN796
So it is not subject to negotiation from the company's point of view?---Well, we have certainly talked about it long and hard but no, it is unresolved.
PN797
The negotiators have authority to negotiate a higher amount for maternity leave and paternity leave?---No, not at this point.
PN798
Thank you. Introduction of change, the impasse between us is?---The impasse between the parties is that the need to have agreement from the unions prior to any change.
PN799
You have researched previous EBAs?---I have.
PN800
That clause has been there for some considerable time?---It has.
**** PAUL EDWARDS XXN MR GEORGIOU
PN801
Have you researched as to whether it has caused the company any difficulty in the past?---That is my problem with it is not so much dealing with the past but dealing with the future and the industry has changed.
PN802
How has it changed?---Well, there is a number of merges that have taken place since that clause was first introduced, the Citipower Powercor, also the TXU and SPI subject to the ACCC at the present time and that effectively means that Agility will be surrounded by bigger players. My understanding of what I have seen of the business is that the growth factor for Agility is in its ability to subcontract itself to the industry. As such, as the smallest player, it certainly requires the flexibility to react very quickly and in my experience around the world is that the companies that survive in that particular circumstances are those that can react quickly therefore the current clause is prohibitive.
PN803
The size of AGL is larger or smaller than Citipower?---It is smaller than the combined Citipower Powercor.
PN804
No, no, my question is: Is it larger or smaller than Citipower?---I think it is of similar size, my understanding.
PN805
And United Energy?---Which is now Alinta?
PN806
No United Energy is still United Energy?---I don't know the answer to that.
PN807
Similar size?---Don't know.
PN808
Those companies have had similar provisions to AGL Agility with regard to change and they are of smaller size?---But they are different. My understanding is they are different companies and they are not looking to have a growth factor that is tied into subcontracting itself out.
**** PAUL EDWARDS XXN MR GEORGIOU
PN809
The contract labour issue is one that the parties are close to resolving or sorry, the ASU and ourselves are we close to resolving that?---My understanding it wasn't an issue with you guys.
PN810
Thank you. The parent award we have covered. I have got no further questions, your Honour.
PN811
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Georgiou. Yes, Mr Borenstein.
PN812
PN813
MR BORENSTEIN: No questions, your Honour.
PN814
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Borenstein. Mr Henderson.
PN815
MR HENDERSON: No questions, thank you, your Honour.
PN816
PN817
MR PARRY: If the Commission pleases, I think you - Mr Edwards, you were taken to some of the early meetings that took place and I think in paragraph 8 of your statement you refer to a meeting on 21 November 2003?---Yes.
PN818
How long did that meeting go for?---That meeting went for a couple of hours and then terminated.
**** PAUL EDWARDS RXN MR PARRY
PN819
Why did it terminate?---The unions walked out.
PN820
Why?---There was an issue around the parent awards and why they walked out, certainly in opinion, it was premeditated.
PN821
You were also being asked about superannuation the TEC claimed by Mr Georgiou?---Yes.
PN822
And you said you were going through where the position currently was and why you said the issue wasn't resolved and you spoke - you gave evidence today about the last time you spoke to Mr Georgiou and where the matter stood as then. Do you recall that?---Yes.
PN823
When was the last time you spoke to Mr Georgiou about this matter?---At the very last meeting and we spoke about it and I agreed to give him a copy of the vehicle policy. I rang him and I e-mailed the vehicle policy to him.
PN824
And you haven't heard anything back?---And I haven't heard anything back from him, no. I go the vehicle policy from Mr Harrison.
PN825
I see?---Who is the APESMA rep.
PN826
I have nothing further of Mr Edwards, if the Commission pleases.
PN827
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Parry.
PN828
MR GEORGIOU: At the meeting - - -
**** PAUL EDWARDS RXN MR PARRY
PN829
PN830
MR GEORGIOU: Just one question that - I think you go confused with what happened at 11 November. He said the discussion was about parent awards. Was it about parties bound, Mr Edwards and not parent awards?---Same, yes. Yes.
PN831
No, it is not the same?---Well, it was about parties bound.
PN832
Thank you?---Yes.
PN833
THE SENIOR DEPUTY PRESIDENT: Anything arising out of that, Mr Parry?
PN834
MR PARRY: No, your Honour.
PN835
PN836
MR PARRY: If your Honour pleases, that is the material that we rely on. I did indicate that we may well seek leave having heard the materials advanced against us and subject to that leave being sought that is the material upon which we rely.
PN837
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Parry.
PN838
MR PARRY: If your Honour pleases.
PN839
THE SENIOR DEPUTY PRESIDENT: Mr Borenstein, are you going to first or is Mr Georgiou going first?
PN840
MR BORENSTEIN: I will go first. Is it possible to get an indication of when my friend can give us - tell us whether or not he is going to bring further evidence or not? He has got our statements which is the evidence of the respondents.
PN841
THE SENIOR DEPUTY PRESIDENT: Well, I suppose first of all, Mr Parry, are you proposing to cross-examine Mr Georgiou and Mr Hayes?
PN842
MR PARRY: I will cross-examine Mr Georgiou about one particular matter and that is all. As to Mr Hayes, to be fair, your Honour, I just haven't read the whole statement yet.
PN843
THE SENIOR DEPUTY PRESIDENT: No.
PN844
MR PARRY: If I could just have one minute.
PN845
THE SENIOR DEPUTY PRESIDENT: Well, look perhaps what I might do is stand the matter down for 10 minutes and you can have an opportunity to read the witness statement properly and in that time you might be able to give Mr Borenstein or the union some indication about whether or not you propose to call any further evidence. That is if you can get instructions in that time.
PN846
MR PARRY: Well, I am of course assuming on this, that the union have presented us the material upon which they rely - - -
PN847
THE SENIOR DEPUTY PRESIDENT: Yes.
PN848
MR PARRY: - - - and they are not going to call any further evidence. If they start leading further evidence-in-chief then that is all out the door.
PN849
THE SENIOR DEPUTY PRESIDENT: I understand. If, in the course of the witnesses giving evidence, they call any further evidence apart from what is in the witness statements, yes.
PN850
MR PARRY: If your Honour pleases.
PN851
THE SENIOR DEPUTY PRESIDENT: Yes.
PN852
MR BORENSTEIN: I can tell your Honour that we are not going to.
PN853
THE SENIOR DEPUTY PRESIDENT: Yes, all right, thank you. Very well, I will stand the matter down until 10 to 12.
SHORT ADJOURNMENT [11.40am]
RESUMED [12.00 noon]
PN854
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Borenstein.
PN855
MR BORENSTEIN: Thank you for the break, your Honour. I can - as I advised before the break, I am not seeking to lead further evidence from the witnesses.
PN856
THE SENIOR DEPUTY PRESIDENT: Yes.
PN857
MR BORENSTEIN: And I have - - -
PN858
THE SENIOR DEPUTY PRESIDENT: Mr Parry wishes to have them for cross-examination so you should - - -
PN859
MR BORENSTEIN: He wishes to have them - - -
PN860
THE SENIOR DEPUTY PRESIDENT: You should call them into the witness box and - - -
PN861
MR BORENSTEIN: And I am happy to call them and just in respect of whether he wishes to call further evidence afterwards, I was just wondering whether we could have indication of that as he knows the evidence that we are putting forward to the Commission.
PN862
THE SENIOR DEPUTY PRESIDENT: Yes. Mr Parry, have you had an opportunity of getting any instructions or not?
PN863
MR PARRY: I have got some instructions. The evidence that we would propose calling goes to the number and make-up of the workforce of Solaris in late 1996. That is the only area on which we would probably be seeking to call further evidence.
PN864
THE SENIOR DEPUTY PRESIDENT: All right.
PN865
MR BORENSTEIN: How do you propose to do that?
PN866
MR PARRY: Well, there is two ways it can be done either I can put my instructions to Mr Georgiou or we can call the evidence as it stands.
PN867
THE SENIOR DEPUTY PRESIDENT: Well, you can put the instructions to Mr Georgiou and then if Mr Georgiou agrees with it there is no need to call the evidence.
PN868
MR PARRY: That is right.
PN869
THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Yes, thank you, Mr Borenstein.
PN870
PN871
MR BORENSTEIN: Mr Georgiou, have you prepared - sorry, can you state your full name and address for the - - - ?---Mark Georgiou, 163 Eastern Road, South Melbourne.
PN872
And what position do you currently hold?---Senior Industrial Officer with the Association of Professional Engineers, Scientists and Managers Australia.
PN873
And have you prepared an affidavit for these proceedings?---I have.
PN874
Have you got a copy of that affidavit with you?---I have.
PN875
Have you read it recently?---I have.
PN876
Is it true and correct?---It is.
PN877
PN878
MR PARRY: If your Honour pleases, I do have a general objection to it. I somehow anticipate what - - -
PN879
THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Parry, I should have asked you if there was any objection.
PN880
MR PARRY: I sort of anticipate the ruling but I will still make the objection nonetheless.
**** MARK GEORGIOU XN MR BORENSTEIN
PN881
THE SENIOR DEPUTY PRESIDENT: Yes.
PN882
MR PARRY: The affidavit of Mr Georgiou contains very little fact at all but rather a collection of documents, which we don't take issue with, but a number of opinions and views that he forms from those documents and he expresses a number of opinions about matters which we will ultimately say are matters that your Honour will need to determine and the opinions and views of Mr Georgiou don't assist or advance the matters, in particular his views about which are the predominate awards at - which were the predominate awards at Solaris which is in paragraph 22, what the employees' industry they were in paragraph 28 and his views as to award coverage in paragraph 31. So I make an objection on that basis, your Honour.
PN883
THE SENIOR DEPUTY PRESIDENT: Yes, I will allow the clauses to stand subject to the weight that might be given to them on the basis of the objections raised, Mr Parry.
PN884
MR PARRY: As your Honour pleases.
PN885
THE SENIOR DEPUTY PRESIDENT: Yes.
PN886
MR BORENSTEIN: Thank you, your Honour. I might just ask Mark Georgiou some quick questions about the evidence given today by the applicant regarding the negotiations which Mark Georgiou did cross-examine on. Mr Georgiou, is there any comments that you wish to make about the statements of Mr Deprinse about the likelihood of agreement being reached?---I have been involved in EBA negotiations for about 14 years and I don't find these negotiations any harder, not any easier either but they are no harder than any other negotiations in the power industry. They are a lot easier that negotiations in the vehicle industry. They are a lot easier than negotiations in local government and the water industry so I don't see that these negotiations are exceptional in the way that negotiations occur in the Victorian power industry or the distribution businesses.
**** MARK GEORGIOU XN MR BORENSTEIN
PN887
And what is your views on whether there is a reasonable prospect of reaching agreement with AGL?---I thought Mr Deprinse and Mr Edwards today summed it up fairly well, that the outstanding issues of superannuation for my organisation and - well, that was it for me, were capable of being resolved outside of the EBA but they are still capable of being resolved and I am aware that Ms Baker from AGL and my representative at AGL, Colin Harrison, have been negotiating through the superannuation issue and are getting to a point of being able to make some recommendations to the negotiators.
PN888
Mr Georgiou, could you please set out what your experience has been in the last 15 to 20 years or so with the entities of SECV, the MEUs and Solaris?---Look I mean if the company thinks this was hard they should been around at the time of the break-up of the SECV and the creation of Solaris. The negotiations occurred with the Victorian government and its lackeys and they took some 9 to 10 months to reach what became a three page document. We had to do - I have negotiated in this industry with some 26 successor bodies to the SECV and they vary, I mean in some instances negotiations have taken a year and in other instances they have taken three weeks.
PN889
In respect of your own experiences, would you say that you have extensive experience in dealings with the SECV, the MEUs and their predecessor - and their successors?---That is almost all that I have done for the Association in the last 13 - God, is it 13 years?
PN890
So - I have no further questions, your Honour.
PN891
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Borenstein. Did you have any questions, Mr Henderson?
PN892
MR HENDERSON: No, your Honour.
PN893
**** MARK GEORGIOU XXN MR PARRY
PN894
MR PARRY: If the Commission pleases. Mr Georgiou, to go back to 1996, that must have been a fairly busy time for you given the various distributors and operators were being formed and were setting up their own industrial affairs?---Not '96, that happened in '93 and '94.
PN895
Right?---'96 I was cruising.
PN896
You were cruising in '96?---M'mm.
PN897
I see. You say in your statement, in this cruising period, that you - I think it is in paragraph 16, you say:
PN898
Not all employees of the five MEUs transferred to the new entity preferring to take redundancies or other positions in the councils however the large majority of the five MEUs did transfer to Solaris.
PN899
Did you get figures at that stage as to how many did?---I have no access to the final figures.
PN900
In fact you have got no idea at all as to how many did transfer to Solaris, have you?---I know how many of mine transferred.
PN901
Yours, that is members of APESMA?---Members of APESMA and I had discussions with the organiser of the ETU at the time who was John Cleary and his senior shop steward was Darren Riley who subsequently became an organiser with the ETU and we had our early meetings at the depot in Spotswood, the former Williamstown Electricity Department meeting rooms. I attended all of the negotiations for the redundancy agreements with each of the councils so I knew roughly how many employees there were in the MEUs for each of the five councils because I did the transition EBAs for them and I also had discussions with the ASU and I worked very closely with the ASU at the
**** MARK GEORGIOU XXN MR PARRY
time with Wendy McManus who is now the Assistant State Secretary of the ASU when we negotiated those transition agreements because Wendy had not had a lot of experience, she had no experience in the electricity industry and I had and so there was some reliance on me with regard to negotiating those agreements so I was very very familiar with the number of employees coming out of the MEUs. If you ask me some 10 years later to give the specifics I can't, the drugs and alcohol have had their toll on me but I am very familiar with the numbers. I am also familiar with the number of people from the SECV who transferred over because I was involved in the negotiations with Electricity Services Victoria prior to the break-up of that organisation into the five distribution businesses as to where they would be located and the choices that employees would have to go to various distribution businesses and the time frame that they would have to opt out of their choice, they were given three months after they chose, for example, to go to Solaris to say I don't like this I want to go to United.
PN902
THE SENIOR DEPUTY PRESIDENT: I think you might have answered it.
PN903
MR PARRY: Do you remember what I asked you?---Yes.
PN904
Got any idea?---Yes. You asked me - - -
PN905
What did I ask you?---Why - how do I know what the figures were and I have just told you, from the - - -
PN906
No, I asked you how - what are the figures?---No, I said I don't know that.
PN907
You don't know the figures and in fact my question was: You have no idea what the figures are?---Yes, I do.
PN908
Tell me, what are they?---The majority of the employees from the MEUs went over to the organisation called Solaris.
**** MARK GEORGIOU XXN MR PARRY
PN909
What is the majority?---The - - -
PN910
Of your members?---No, I also spoke to Wendy McManus and to John who was from the ASU and John Cleary from the ETU.
PN911
Yes, I am sorry. How many people were employed by Solaris in late 1996?---No, I don't know '96.
PN912
You don't have any idea, do you?---That was when I was cruising.
PN913
That is when you were cruising so you don't have any idea of how many employees were employed by Solaris in late 1996?---No, I don't.
PN914
Right. And you don't have any idea at all as to how many of those came from the old MEUs or how many came from the SECV?---I did a check before this - - -
PN915
No, do you?---Of my own figures, I do, of APESMA members. I did a check of some membership records in '96 for APESMA. There were 53 members and 5 non-members with professional engineering qualifications and I was able to ascertain roughly 23 were from the MEUs, 14 I identified from the SECV and I didn't know the composition - sorry, the background of the others, some of them had come from outside of those businesses and a lot of them I couldn't determine but the overwhelming majority of those who I could ascertain had come from the MEUs.
PN916
Of your members?---Of my members.
PN917
And your membership, did that cover all the professional engineers?---It did and - - -
**** MARK GEORGIOU XXN MR PARRY
PN918
It was closed shop?---No - sorry, our coverage is for all professional engineers, as I said, the number of non-members that you could count, because we are such a good organisation, are very very few and far between, Mr Parry.
PN919
I see. Can I go through the sort of operations that existed as we would say in late 1996. You are aware there was a Solaris operation in Lonsdale Street?---In '96?
PN920
Yes?---No, they weren't in Lonsdale Street, Mr Parry, they were in 1994.
PN921
All right. So you contest that Solaris were operating at Lonsdale Street in 1996?---I can tell you that when they were formed; first formed, they were in Lonsdale Street opposite the Flagstaff Gardens where I met their CEO, Mr Marshall at the time and their American owners because Ms Devines from my organisation came with me. When they moved from Lonsdale Street was a couple of years later but the exact date I don't know but they didn't move to 333 Collins Street straight away. My members went to the Elders Building on the corner of Queen and Bourke I think it is so there was - there were transition stages.
PN922
If evidence was given that they moved from Lonsdale Street to Collins Street in December 1996 you couldn't contest that?---No, I couldn't.
PN923
Queen Street, you are aware they operated there?---Yes, the Elders Building.
PN924
Right. And at both Queen Street - I am sorry or Lonsdale Street and Queen Street they were predominantly SECV employees?---No.
PN925
You dispute that?---Yes.
**** MARK GEORGIOU XXN MR PARRY
PN926
How do you know?---Because the number of engineers that were left in the company were very few, there were only a couple of depots going and the main depot was at Broadmeadows. There were still some engineers operating out of Williamstown but they were - most of them had transferred over but the membership that I had at the time was mainly people from the MEUs and I was negotiating packages; salary packages for them at the time. There were some contention with regard to the MEU. I had a lot more work to do with the MEU people because of their employment conditions.
PN927
Yes, because the MEU's employment conditions were largely being aligned with SECV-type conditions?---There was also - - -
PN928
Well, that was the position, wasn't it?---No.
PN929
Right?---No, the - - -
PN930
What about hours of work?---The hours of work were resolved in 1994.
PN931
Yes?---So it wasn't '96 so your question is the hours of work were aligned in 1994.
PN932
Yes. And that was aligned with the SECV?---Yes.
PN933
Yes. And it was the position between '94 and '96 that generally conditions were moved to alignment with the SECV-type conditions?---No.
PN934
You don't accept that?---No.
PN935
All right. So you would accept that at Lonsdale Street and Queen Street you had some members and - - - ?---Most of my members.
**** MARK GEORGIOU XXN MR PARRY
PN936
Yes, all right. And also you had members that came from the SECV?---Yes.
PN937
Right. And they were working side by side?---Yes.
PN938
Doing similar sort of work?---The same work.
PN939
Same work. Now, at the depots or at Heidelberg and Spotswood, you are aware of those?---Yes, I am.
PN940
Did you have members there?---Yes.
PN941
Right. Predominantly from the MEUs?---Entirely from the MEUs.
PN942
Right. Keilor and Broadmeadows, SECV?---SECV.
PN943
Right. And Coburg?---Closed down.
PN944
Closed down. I see?---They moved into the city.
PN945
I see?---So did Preston and did Footscray, just for clarity.
PN946
All right. But by late 1996 it was one business, Solaris's business?---M'mm.
PN947
Providing the maintenance and upkeep and construction and the billing in respect of the north and western suburbs of Melbourne?---Yes.
**** MARK GEORGIOU XXN MR PARRY
PN948
Right. And you assert the majority were ex-MEU but you don't have any figures or any basis in numbers supporting that proposition?---Only - I don't know the numbers because they are not - I don't know how many employees there are in the companies and I never do. I can only go by my membership, the ASU's membership and the ETU's membership and I can give you the nod we were pretty strong and there were very very few non-members.
PN949
All right. And, in effect, the operations of AGL, Agility, are not dissimilar to the sort of operations of Citipower?---No, not dissimilar. There are different engineering and lines work. The types of employees are similar.
PN950
Yes?---Citipower has a lot of underground cabling, whereas all of AGLs area is overhead. But, you know, the substation work and all of that - a substation is a substation no matter where it is.
[12.20pm]
PN951
I see. Could I hand you a newsletter of 29 January 2004?---You can.
PN952
I apologise to the Commission, it has markings on it. It was tendered in other proceedings. You have seen this before?---I have. Yes.
PN953
Did you draft it?---I - yes, is the answer.
PN954
And it was distributed to employees at SPR, Powernet, Powercor, Citipower, AGL, TXU?---That is right.
PN955
And it was an attempt to summarise the enterprise bargaining position?---I would have categorised it as beefing it up, so we could get good attendance at the meeting.
**** MARK GEORGIOU XXN MR PARRY
PN956
Beefing it up?---Mm.
PN957
I am sorry, what do you mean by "beefing it up"?---Trying to highlight why people should come to the meeting, and embellishing some of the issues. It is not meant to be an historical record. Its main objective was to ensure we got maximum attendance at the meeting.
PN958
You are not suggesting you would mislead your members, are you, Mr Georgiou?---I am suggesting that, just as the Collingwood Football Club misleads its members by saying they are the best team. That is the business that you are in.
PN959
I see. So you are in the business of misleading your members, I take it?---No. I am in the business of getting maximum attendance at my meetings, so they can direct me as to what I should be doing.
PN960
All right, then. Let us find out which parts that you have beefed up?---Yes.
PN961
Negotiations at each company have come to a difficult stage...
PN962
This was in January. Was that correct?---I beefed that up.
PN963
That is beefed up. All right. You accept that if a member of yours read this the negotiations at each company would probably assume that it included all the companies set out above, wouldn't it?---No, no, no, no. You are - - -
PN964
You don't read it that way?---I had called - I will give you an example. I called a meeting of my members at SPI Powernet, where I have some 40 members, to certify the EBA. One of them came along. Not because they are not interested in the pay increases, but my members need a lot of work on them to get them to attend meetings, and so I do have to beef it up. I had to have another meeting where at least I had 30 there. So this is intended to get people to come along.
**** MARK GEORGIOU XXN MR PARRY
PN965
All right. Well, let us just go on with the document:
PN966
...suffice to say that there are a number of key issues that have not been agreed to by any company. The issue of compulsory redundancies is a claim all employers are keen to pursue
PN967
Was that the position at AGL?---No, no, no.
PN968
No, it wasn't, was it?---Beefing it up.
PN969
Yes, that is beefing it up. The issue of consultation rather than agreement for the introduction of change is common with most employers. That was an issue at AGL wasn't it?---It still is an issue, and they are the only ones left. The others where it was an issue all rolled over; as is historically the case.
PN970
The use of contractors is obviously a very significant clause. That was the position at AGL?---Yes.
PN971
As is the issue of hours of work?---It certainly was.
PN972
Again, it remains an - was an issue and remains an issue?---Believe me, this was designed for a target audience.
PN973
All right. Yes, we understand what you are saying, I think, Mr Georgiou. The second paragraph:
PN974
No company has seriously negotiated the employment/contract clause
**** MARK GEORGIOU XXN MR PARRY
PN975
This is one that is an issue between yourself and the - or your union and AGL?---You said currently did you?
PN976
Yes?---No, not really. I agree with Mr Deprinse and Mr Edwards that on a scale of 1 to 10 it is at the lower end going down to 1, I think, or 2.
PN977
But it is not agreed?---No, nothing is agreed until everything is agreed, Mr Parry.
PN978
I understand that?---And that is the negotiating position of everyone in this business.
PN979
You go on and ask for this report back meeting on 4 February. And below the big parts there it has - there is a report back session. They will be asked to give direction to the negotiators on how to deal with the stalled negotiations. See that?---Yes.
PN980
Is that a fair description of the negotiations as they were in February, stalled?---With all of those companies, yes, I wouldn't say that AGL was stalled at that stage, but it is a little bit of poetic licence, as I said to you once before.
PN981
Beefing it up?---Beefing it up.
PN982
I see. And the first line of the next paragraph:
PN983
This is probably the most crucial meeting in the Victorian power industry since the break up of the SECV
**** MARK GEORGIOU XXN MR PARRY
PN984
As I understand your evidence, the break up of the SECV was in 1993?---Mm.
PN985
So you accept, presumably, that you were happy to tell your members that this was the most crucial meeting in the Victorian power industry for the last 11 years?---It was because it was the only one.
PN986
I see. The only meeting of your members?---Of all of the companies.
PN987
I see?---Yes, so it is - as I said to you in other proceedings, if I don't beef them up I don't get anyone to come.
PN988
I see. I suggest to you that you well knew that these negotiations were very important and, indeed, were some of the most important negotiations since the break up of the SECV?---I doubt it very much, Mr Parry.
PN989
You doubt it?---I doubt that very much.
PN990
I see?---I thought the privatisation meetings were a bit more important than the - any other meetings that I have had or any other negotiations. When the companies were privatised, believe me, they were tough; not this.
PN991
Now the industrial action that you took - I think this was a meeting and you - then there was a vote to take protected action, in February. That was industrial action that was taken across the various employers in the power industry, wasn't it?---No. I had a separate meeting of my members at AGL and they were - the membership at AGL insisted and had separate meetings. So you should also advise the Commission that there was a specific meeting at AGL to vote on the industrial action. As there was with each of the other companies.
PN992
I see. Perhaps if I could hand you a newsletter dated 4 February 2004.
**** MARK GEORGIOU XXN MR PARRY
PN993
THE SENIOR DEPUTY PRESIDENT: Did you want to mark the other document, Mr Parry?
PN994
PN995
MR PARRY: Now do you have a copy of that, Mr Georgiou?---I now do, yes.
PN996
Have you seen this document before?---I have.
PN997
Again, drafted by you and distributed to employees in the industry?---Yes.
PN998
And, I think the second paragraph - or the first paragraph talks about:
PN999
Members in the other companies also voted to take similar action although the vote was not unanimous at those meetings, although overwhelmingly endorsed
PN1000
?---Yes.
PN1001
And then there is set out industrial action?---That is right.
PN1002
Can I take it from that that the approach of APESMA, at the least, and probably the ASU, was that there was to be similar industrial action taken across the various companies?---Yes.
**** MARK GEORGIOU XXN MR PARRY
PN1003
PN1004
MR PARRY: Yes. I have nothing further if the Commission pleases.
PN1005
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Parry. Mr Borenstein, any re-examination?
PN1006
PN1007
MR BORENSTEIN: Mr Georgiou, can you go to - Mr Parry referred you to paragraph 16 of your affidavit?---Yes.
PN1008
Now, both at the time - is it true that both at the time that Solaris was formed, and at 31 December 1996 you were heavily involved in organising Solaris as it formed, and at 31 December 1996?---I was.
PN1009
And in doing so were you able to form an impression about where the employees came from?---Yes.
PN1010
And that was in respect of all - basically all the employees at Solaris?---A fairly good idea, yes.
PN1011
No further questions, your Honour.
**** MARK GEORGIOU RXN MR BORENSTEIN
PN1012
PN1013
MR BORENSTEIN: I seek to call Mr Hayes.
PN1014
PN1015
MR BORENSTEIN: Mr Hayes, could you please state your full name and address for the transcript?---Wes Hayes (address supplied).
PN1016
And have you produced a statement for the purposes of these proceedings?---Yes.
PN1017
Have you read it recently?---Yes.
PN1018
Can I take you to paragraph 9?---Yes.
PN1019
Can you please explain - give more details about what occurred there?---13 May, from recollection, I think we had a Commission hearing in front of your Honour, on or about that date, and at that time there was a notice that had been lodged that was intending to embark upon a 48 hour stoppage, and in front of - in the Commission we actually told the company we won't be going ahead with that 48 hour stoppage, as a show of good faith. We said it up here in the Commission. It might have been in conference, but I specifically recall saying it in this forum.
PN1020
So there was notice for a 48 hour stoppage?---Yes, yes.
PN1021
And that wasn't proceeded with?---No, we didn't go ahead with the 48 hour stoppage.
PN1022
Can I refer you to paragraph 13?---Yes.
PN1023
Can you explain how you became aware of that?---Last Friday I attended the - Friday the 18th - I think it was last Friday - I attended a mass meeting out at AGL. Before the meeting I had a shop stewards meeting and I was informed by all the shop stewards at that meeting that Mr Tony Beech had had a meeting with the line workers or that section and discussed what I have stated in that - in that paragraph, there.
**** WES HAYES XN MR BORENSTEIN
PN1024
Which - can you name the shop stewards who told you?---Well the meeting I had probably at best, just close to all my shop stewards there. I had Bob Wylie, Steve Albert, Glen O'Brien. All of them were in the meeting, and all of them were aware that that had occurred, that meeting had occurred with Tony Beech.
PN1025
And had they witnessed what Mr Beech said?---My understanding is, Mr Wylie and Mr O'Brien hadn't witnessed it, but Mr Albert had.
PN1026
MR PARRY: Well, I object to that. I object to that paragraph and I object to that - well, I object to the paragraph.
PN1027
THE SENIOR DEPUTY PRESIDENT: Paragraph 13, is it?
PN1028
MR PARRY: Yes. It is just manifestly hearsay. Now, if - I recognise that hearsay often is admitted in this Commission, and it is often given a more limited weight and so forth, but here if there is something to be made of that we say that we have been given this affidavit, today, it is clearly a hearsay part of it, and when parties bring material late to the Commission really it should be of direct evidence and not be hearsay; and so I object to paragraph 13.
PN1029
THE SENIOR DEPUTY PRESIDENT: What do you say about it, Mr Borenstein?
PN1030
MR BORENSTEIN: Well, your Honour, we say that it would be - it is too onerous to expect the union to call every witness regarding statements made, where proceedings were brought in such an urgent and short time has been allowed to prepare the material. Mr Hayes has been informed by a shop steward that this was said, and it is not unreasonable for us to put that in his statement. Hearsay is used, is allowable in urgent applications like injunctions in the Federal Court, and in the Courts; and in a matter, as today, which has been brought over a very short time, such evidence should be allowed. Now it
**** WES HAYES XN MR BORENSTEIN
is allowed under the - to be brought in injunctions under the Evidence Act, and we say the same should apply here. It is clear that the applicant can get instructions on this matter, and they haven't denied that such statement was made.
PN1031
THE SENIOR DEPUTY PRESIDENT: Well they haven't had an opportunity to cross-examine on it, yet.
PN1032
MR BORENSTEIN: No, they haven't, but they haven't got instructions on it. I mean, they could easily make a phone call in the preceding three hours to Mr Beech.
PN1033
THE SENIOR DEPUTY PRESIDENT: But they only got the statement his morning. I mean, that is one of the complaints they are making about it.
PN1034
MR BORENSTEIN: But they have had three hours. Mr O'Grady has been out of the - they have got two barristers here. Mr O'Grady has been out of the Commission. It doesn't take much to call Mr Beech and say, did you say this or not.
PN1035
THE SENIOR DEPUTY PRESIDENT: I will allow the paragraph to stand subject to the weight that might be given to it. In the course of the submissions I will hear an address on it. All right. Perhaps you should clarify a little more, though, the nature of the statements that were made.
PN1036
MR BORENSTEIN: Mr Hayes, what was the statement that you were advised Mr Beech ..... said?
PN1037
THE SENIOR DEPUTY PRESIDENT: Sorry, it was Mr Elkin, was it?---Albert.
PN1038
Albert?---Steve.
**** WES HAYES XN MR BORENSTEIN
PN1039
MR PARRY: Well, I think the document shouldn't be in his hands. He is just going to read that out.
PN1040
THE SENIOR DEPUTY PRESIDENT: Yes?---What is wrong with that?
PN1041
No, don't read - don't read - don't refer to the document at this stage?---Sorry.
PN1042
MR BORENSTEIN: Well, to the best of your recollection what did Mr Albert say to you on that day?---He said to me that the - Tony Beech had come in and called a meeting of all the line workers in that work group or section, and he explained to them that nothing else was an issue in terms of consultation and contractors and anything like that, and they have just got to sort out the 36; and he had said that to those people at that work group.
PN1043
THE SENIOR DEPUTY PRESIDENT: Yes, thanks, Mr - - -
PN1044
MR BORENSTEIN: On that basis I seek to tender the witness statement.
PN1045
PN1046
MR BORENSTEIN: Thank you, your Honour?---Am I allowed to look at my statement, your Honour?
**** WES HAYES XN MR BORENSTEIN
PN1047
Sorry?---Am I allowed to?
PN1048
PN1049
MR PARRY: If the Commission pleases. Mr Hayes, you have just not looked at this document and you have given a version to the Commission of what was said, and you have added in a few extra words that don't appear in your statement. Do you accept that you have added in "nothing else between us like issues such as contractors and consultation and anything else"? It seems to be a different set of words than you have put in paragraph 13. See that?---Well I can't because - am I allowed to look at my statement?
PN1050
Yes, have a look at your statement, now?---What is the question again, sorry?
PN1051
You have given a different version to the Commission than appears in your statement?---To what respect?
PN1052
You have added in a few words?---Which words?
PN1053
You have said to the Commission - - -?---Which words?
PN1054
- - - you have added in reference to "contractors and consultation and anything else". Do you understand that?---And what is the question?
PN1055
The question is, you don't recall precisely what was said, do you?---I recall precisely what was said at that meeting to me, and I have replicated that when I wrote the statement to that effect. If you are asking me to repeat my statement word for word without looking at it, no I can't.
**** WES HAYES XXN MR PARRY
PN1056
Yes. What I am suggesting to you is that you don't recall precisely what was said by this shop steward to you, do you?---I recall when I wrote the statement what the shop steward had told me, and that is what I put in the statement.
PN1057
Yes. And when did you write the statement?---What is today? What is today, Wednesday? I wrote the statement Monday, Tuesday. I have been looking at it a little bit, so.
PN1058
You wrote on Monday or Tuesday. You can't even remember which day of the week you wrote this statement, and you are saying you remember something precisely?---No. I started the statement and I continued writing the statement. So - I could start it Monday and finish it Tuesday.
PN1059
When did you finish it?---I think, yesterday.
PN1060
You think, yesterday?---Just settle down there, mate, take it easy. I know you get paid by your theatrics but just take it easy.
PN1061
Well, how about you tell us - - -?---Well, I just did.
PN1062
- - - exactly what you recall?--- - - - I just did. Well, I just did.
PN1063
What, when you finished the statement?---Well what is your question?
PN1064
When did you finish the statement?---I think, yesterday.
PN1065
You think, yesterday?---Yes.
**** WES HAYES XXN MR PARRY
PN1066
All right. Any reason why it wasn't provided to us, yesterday?---No.
PN1067
No. You had it all completed yesterday?---No, I said I think yesterday.
PN1068
You think yesterday?---Yes.
PN1069
Well could it have been on Monday?---No.
PN1070
Right. So, it was yesterday - - -?---Well, I think yesterday.
PN1071
What time, yesterday? What time?---Can't remember.
PN1072
Can't remember. Right. And I suggest to you you don't remember what was said to you by a shop steward last Wednesday, either?---You can suggest it, you can suggest it, but I have given my answer on that.
PN1073
All right. And you can't give any explanation as to why, when you finished this statement, you didn't provide this to us in compliance with the directions of the Commission?---I said - - -
PN1074
MR BORENSTEIN: Well, your Honour, I object to that.
PN1075
THE SENIOR DEPUTY PRESIDENT: What is the ground for that?
PN1076
MR BORENSTEIN: Now, this is going close to legal, professional privilege. I am a lawyer with a current practising certificate and there was a number of matters - I don't want to go into them, but this is not relevant to these proceedings, and if my - - -
**** WES HAYES XXN MR PARRY
PN1077
THE SENIOR DEPUTY PRESIDENT: Well, it goes to the issue of why the directions were not complied with, in terms of the statements.
PN1078
MR BORENSTEIN: Well it is going towards legal, professional privilege, your Honour.
PN1079
THE SENIOR DEPUTY PRESIDENT: Well not the issue of when it was provided. That doesn't go to - that is not - - -
PN1080
MR BORENSTEIN: No. It is going into how this statement was prepared by both Mr Hayes and myself. Now I don't want to be able to get in the box and say when this statement was actually finalised. Now, I mean, if my friend wants to - - -
PN1081
THE SENIOR DEPUTY PRESIDENT: I don't see it as going - - -
PN1082
MR BORENSTEIN: - - - delay the proceedings.
PN1083
THE SENIOR DEPUTY PRESIDENT: Sorry?
PN1084
MR BORENSTEIN: My friend is doing a good job of trying to delay these proceedings in going to matters to aren't relevant to the issues in dispute.
PN1085
THE SENIOR DEPUTY PRESIDENT: Well, if it wasn't - I mean, if it wasn't completed yesterday, and Mr Hayes is giving evidence, he can say that, can't he? I mean - - -
PN1086
MR BORENSTEIN: Well, but he is going - but he is going further than that, your Honour. He is saying why wasn't that provided to - - -
**** WES HAYES XXN MR PARRY
PN1087
THE SENIOR DEPUTY PRESIDENT: To them. To the parties, yesterday.
PN1088
MR BORENSTEIN: That is right. And that is matters that are under legal, professional privilege.
PN1089
THE SENIOR DEPUTY PRESIDENT: How is it under legal, professional privilege, what?
PN1090
MR BORENSTEIN: Because, Mr Hayes may have - well, I am going into how this statement was formed.
PN1091
THE SENIOR DEPUTY PRESIDENT: Well he may have drafted it and you may have seen it - - -
PN1092
MR BORENSTEIN: He doesn't know when the statement was actually in a position to be filed and served. And I think that is the extent as far as I can go in respect of talking about - without disclosing legal, professional privilege.
PN1093
THE SENIOR DEPUTY PRESIDENT: Mr Parry, do you need to go any further on the matter in any event? I mean - - -
PN1094
MR PARRY: Probably not. I don't think it is privileged, and I think the answer - - -
PN1095
THE SENIOR DEPUTY PRESIDENT: No, I don't accept that it is privileged, but, anyway.
PN1096
MR PARRY: So we have no explanation, and we will make submissions about that in due course.
**** WES HAYES XXN MR PARRY
PN1097
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1098
MR PARRY: Mr Hayes, you have given evidence, today, about - in paragraph 9 of your statement, about what occurred on 13 May 2003. See that?---Yes.
PN1099
Were you in the country, then?---13 May. Well the date I recall when I told them there was - the 48 hour stoppage was not going ahead, the one I recall is the one when I was sitting in front of his Honour in this jurisdiction. That is the one where we gave an exemption to a 48 hour stoppage.
PN1100
Well my understanding, you were in the United States on 13 May?---Well that could have been possible, mate.
PN1101
Well do you remember or is this another problem with your memory?---Well, in terms of the 48 stoppage, I sat in this jurisdiction and gave an exemption to a 48 hour stoppage. If that date is wrong, well that is - happy to admit that would be a wrong date. But we definitely gave an exemption to a 48 hour stoppage in this jurisdiction.
PN1102
All right. Can we accept then that as best you recall now, given that it is a month ago, you were in the United States on 13 May?---Yes, well, I recall being overseas around that date. Yes.
PN1103
I see. So you didn't advise anyone at that time, did you?---I advised the company that we weren't proceeding with the 48 hour stoppage, which we didn't go ahead with. If the 13th date is the date that was not correct there, happy to accept that as a correction.
PN1104
I see. In fact, wasn't it the position that the union actually advised the company that the action wasn't taking place after the designated date for the action to start?---No. The 48 hour stoppage I am referring to we sat here and I can remember Paul Edwards making appearances at the time, and we sat here and said, the 48 hour stoppage is not going ahead as a show of good faith.
**** WES HAYES XXN MR PARRY
PN1105
You were at the mass meeting in the power industry on 4 February?---There was a mass meeting of members, yes.
PN1106
Wasn't this the meeting that you - that your union publicised as the biggest mass meeting in the power industry since privatisation?---Yes.
PN1107
And that was a meeting at which a number of ETU power workers attended from various power companies?---Electrical distribution companies; it is a mixture.
PN1108
Yes. That included Agility, didn't it?---Yes.
PN1109
And this was a meeting at which Mr Mighell spoke?---Yes.
PN1110
And this was a meeting at which Mr Mighell made clear that there was going to be a campaign across the Victorian power industry for a 36 hour week?---Yes.
PN1111
And he also made clear that it was a very, very important campaign as far as the union were concerned?---I don't remember his specifics, but certainly that has been said in the past, so, yes.
PN1112
Yes. And, indeed, do you remember him also saying that they were looking at common conditions of employment across the power companies?---I don't him specifically saying that, but I think I have given evidence in the past and I will repeat it again, that that is certainly an objective we seek to achieve.
PN1113
And your union is continuing to pursue the 36 hour week across not only Agility but also in respect of other power distribution companies, isn't it?---Electrical distribution companies where it is appropriate. Yes.
**** WES HAYES XXN MR PARRY
PN1114
Yes. I have nothing further, if the Commission pleases.
PN1115
THE SENIOR DEPUTY PRESIDENT: Re-examination, Mr Borenstein?
PN1116
PN1117
MR BORENSTEIN: Mr Hayes, in respect of when you were away in the United States, are you aware of the exact dates that you were away?---Off the top of my head, early May - I don't recall - I don't recall the exact dates, but I remember late April, early May. So if 13 May was - - -
PN1118
Well, can I put to you that I am instructed that you returned from the United States on 10 May - - -
PN1119
MR PARRY: He remembers now?---Look, I couldn't answer that. To be honest, I would be lying, which I am not going to do, if I said I definitely knew that.
PN1120
MR BORENSTEIN: I will leave that matter for submissions, your Honour.
PN1121
PN1122
MR BORENSTEIN: I think there is only the statement of Mr Rizzo, the affidavit of Mr Rizzo.
PN1123
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1124
MR BORENSTEIN: I have been advised that Mr Parry does not wish to seek to cross-examine Mr Rizzo.
PN1125
THE SENIOR DEPUTY PRESIDENT: Do you wish to tender that?
PN1126
PN1127
THE SENIOR DEPUTY PRESIDENT: Is that a convenient time for a luncheon adjournment, or are you - - - ?
PN1128
MR PARRY: Your Honour, we have - I am assuming that is all the evidence - - -
PN1129
THE SENIOR DEPUTY PRESIDENT: I am sorry. Do you want to call somebody else?
PN1130
MR PARRY: I am assuming that is all the evidence that is going to be called - - -
PN1131
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1132
MR PARRY: - - - for the other side, your Honour.
PN1133
MR GEORGIOU: Except in reply to it.
PN1134
MR PARRY: The reply to the reply. We have somebody in the Court that we have called down to give evidence about the various numbers that I was putting to Mr Georgiou and that will be relevantly short and perhaps it might be appropriate - - -
PN1135
THE SENIOR DEPUTY PRESIDENT: Well, perhaps we could do that now then.
PN1136
MR PARRY: - - - to get all of the evidence out of the way.
PN1137
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1138
MR PARRY: Mr O'Grady will take care of this witness.
PN1139
THE SENIOR DEPUTY PRESIDENT: Yes, thank you.
PN1140
PN1141
MR O'GRADY: Ms Williams, could you tell the Commission your full name please?---Janette Lorraine Williams.
PN1142
And what is your business address, Ms Williams?---333 Collins Street, Melbourne.
PN1143
All right. And for whom do you work?---AGL.
PN1144
And in what capacity; what do you do for AGL?---I am an HR Consultant.
PN1145
Prior to working for AGL did you used to work for a company by the name of Solaris?---Yes, I did.
PN1146
And when did you commence working with Solaris?---In March 1995.
PN1147
And prior to working with Solaris, with whom did you work?---Linfox Transport company.
PN1148
When you were working with Solaris, what was your role then?---Initially I was the Personal Assistant to the CEO.
PN1149
I see. And the CEO was a Mr Marshall is that correct?---That is correct.
PN1150
Are you aware that, in these proceedings, it has been said that as at December 1996 the clear majority of employees employed by Solaris were from the five MEUs?---I have been told that, yes.
**** JANETTE LORRAINE WILLIAMS XN MR O'GRADY
PN1151
Yes. And this morning have you made some enquiries, based on your own recollections and from speaking to a number of other people, as to what was the position regarding the percentage of employees who were employed by Solaris who have come from the five MEUs as of December 1996?---Yes, I did.
PN1152
All right. With whom did you speak about that issue this morning?---I spoke with Tanya Bolton.
PN1153
Yes. What does Tanya Bolton do?---Tanya is the National Payroll Manager for AGL.
PN1154
THE SENIOR DEPUTY PRESIDENT: Sorry is that Tanya, or Tony?---Tanya.
PN1155
MR O'GRADY: So she is the National Payroll Manager for AGL. Did she used to work for Solaris?---Yes, she did.
PN1156
For how long do you know was she involved with Solaris or its predecessors?---She has been with the SECV right through until now - in excess of 20 years.
PN1157
In excess of 20 years?---Yes.
PN1158
So she came across to Solaris when it took over part of the SECVs business?---That is correct.
PN1159
I understand. And where was she based as of December 1996?---Broadmeadows.
**** JANETTE LORRAINE WILLIAMS XN MR O'GRADY
PN1160
Broadmeadows. Okay. I would like to come, in a moment, to where Solaris conducted its operations from but it is fair to say that one of - I think it is common ground that one of the centres was at Broadmeadows and that was where Tanya was working, is that the case?---That is correct.
PN1161
All right. Anyone else - who else did you speak to this morning in order to try and get a fix on these numbers?---Bill Estaugh.
PN1162
Okay. And what does Mr - what did Mr Estaugh do for Solaris?---He was an engineer. He was managing the - in the early days of Solaris, managing the Heidelberg depot.
PN1163
I see?---And subsequently moved into Broadmeadows.
PN1164
Okay. Fine. And did you speak to anybody else this morning about this issue?---Yes, I spoke with Ray Miles.
PN1165
Yes?---A former SECV/Solaris Power/AGL employee.
PN1166
Okay.
PN1167
THE SENIOR DEPUTY PRESIDENT: Ray Miles was it?---Yes.
PN1168
MR O'GRADY: And what about your own boss, your old boss, Mr Marshall, did you speak to him?---Sorry, yes, that is correct. I also spoke with John Marshall, the former CEO of Solaris Power.
PN1169
Can you tell us, as a result of those discussions, as at December 1996 or thereabouts - I know it is hard because it is a long time ago but as best as you have been able to work out from your own recollection in these discussions what were the offices being conducted by Solaris at that time - - -
**** JANETTE LORRAINE WILLIAMS XN MR O'GRADY
PN1170
MR BORENSTEIN: I object, your Honour. This is hearsay evidence. I am happy for the witness to give - to say - to base it on her own observations but to base it on evidence of other people's observations I would like to note my objection that this is hearsay and that it should not be allowed.
PN1171
THE SENIOR DEPUTY PRESIDENT: Again, I will deal with this in the same way that I am going to deal with paragraph 13 in Mr Hayes' statement. I will allow it and you can address me on the weight that I should give it, in due course.
PN1172
MR BORENSTEIN: Thank you, your Honour. If your Honour pleases.
PN1173
MR O'GRADY: I think I was asking you about the various offices being conducted by Solaris as of December, or thereabouts, 1996. Could you identify for the Commission where Solaris did conduct its operations from at that time?---There was staff in Lonsdale Street in the City up until December/late December '96.
PN1174
Now with respect to those staff do you have a view, based upon your own recollection and of course the conversations you have told us about, as to approximately how many staff there would have been as of December 1996, at Lonsdale Street?---Approximately 70.
PN1175
All right. And would those people, to the best of your knowledge, have been predominantly SECV employees or predominantly MEU employees?---My recollection would be predominantly SECV.
PN1176
And what sort of work would those people be doing?---It was the executive management team for Solaris. There was a finance group/accounts payable group/IT engineering people/management engineering people.
**** JANETTE LORRAINE WILLIAMS XN MR O'GRADY
PN1177
To your knowledge were those people - did they have the terms and conditions regulated by an award or because they were management people did they fall outside the award?---They predominantly fell outside the award in terms of their - the way they were remunerated.
PN1178
Okay. With respect to the Queen Street - sorry, what other operations were there?---There was a second city location. It was 160 Queen Street.
PN1179
Right. And approximately how many people worked there?---40.
PN1180
And were those people predominantly SECV employees or predominantly MEU employees?---Possibly just marginally SECV.
PN1181
All right. And where were the other offices being conducted?---There was the last depot at Broadmeadows that we have referred to.
PN1182
I am sorry. I will withdraw that. With respect to Queen Street, what sort of work did the people do at Queen Street?---They were engineers.
PN1183
Okay. Sorry, what other offices?---The Broadmeadows location.
PN1184
Now from your own recollection approximately how many people were working at Broadmeadows as in December 1996?---It was about 140.
PN1185
All right. Did you have discussions with others this morning that you gave you to reflect upon - in which a different estimate was given?---Yes. The number could have - from other people's recollections been as high as 250.
**** JANETTE LORRAINE WILLIAMS XN MR O'GRADY
PN1186
And were - what sort of people out at Broadmeadows do?---Quite a variety of tasks. There were office administrative support people. There were engineers - engineering people, meter readers, metering technicians, electrical linesmen. There is a logistics function store where the equipment is supplied out for the lines people. Quite a variety of tasks.
PN1187
Okay. And were those people dominantly SECV employees or predominantly MEU employees?---From my recollection they would be predominantly SECV.
PN1188
And would that have been the biggest office being maintained by Solaris at this time?---Yes.
PN1189
Okay. Can you recall any other centres that were being conducted?---Yes. There was the Heidelberg depot.
PN1190
And approximately how many people worked there Heidelberg?---50.
PN1191
All right. And what sort of work was done by those people?---There was a small engineering group. There were electrical linesmen. A small number of office support staff.
PN1192
And were those people predominantly SECV employees or predominantly MEU employees?---Predominantly MEU.
PN1193
All right. Were there any others?---Yes, there was another depot in Spotswood.
PN1194
And approximately how many people worked out there?---About 35.
**** JANETTE LORRAINE WILLIAMS XN MR O'GRADY
PN1195
THE SENIOR DEPUTY PRESIDENT: I am sorry, how many?---35.
PN1196
MR O'GRADY: And what sort of work did those people do?---Very similar to the Heidelberg - the mix at Heidelberg.
PN1197
Okay. And with respect to those employees, were they predominantly SECV or predominantly MEU?---They would have been MEU predominantly.
PN1198
All right. Were there any others that you can recall, at the time?---Yes. There was a location Keilor where we had people.
PN1199
And approximately how many people worked out there?---Again I think about 35.
PN1200
And what sort of work did those people do?---The System Control Room was located out there. It was a large terminal station so there was some technically trained people who were capable of operating the network and I think a small group of engineers and some substation tester and fitter people.
PN1201
And were they predominantly SECV employees or MEU employees?---SECV.
PN1202
All right. Were there any others?---Yes, there was a Coburg office.
PN1203
And how many people worked out at Coburg?---30.
PN1204
And what sort of work did those people do?---They were all basically office based people. There was some clerical functions and I think a small marketing group.
**** JANETTE LORRAINE WILLIAMS XN MR O'GRADY
PN1205
Okay. And would those people be predominantly MEU or predominantly SECV?---Probably MEU.
PN1206
Right. Now as at - sorry, you have described for us the sorts of tasks that people were doing in various offices and not surprisingly there is the same sort of tasks was being conducted at a number of different centres throughout the city, was that the case?---Throughout the city or throughout Melbourne?
PN1207
Yes, throughout Melbourne?---Mm.
PN1208
And some of the locations that were for example performing meter reading you told us were predominantly MEU - for example Heidelberg and Spotswood but meter reading was also conducted, as I understand it, out at Broadmeadows, which was predominantly SECV?---Correct.
PN1209
Was there any difference, as far as you are aware, between the nature of the task and these people who were engaged in the same classification if you like - any difference in the nature of the tasks that they were performing if they were SECV employees as opposed to those who were MEU employees?---I do not believe there was any substantial difference.
PN1210
So when Mr Georgiou told us it was identical, that it was the same work, you would agree with that?---Mm.
PN1211
And, would you also agree with Mr Georgiou's observation that come December 1996 some of these people were working side by side?---Yes.
PN1212
Now Solaris, as I understand it, started conducting the business in September 1995, or thereabouts?---I believe the business was actually formed in about September/October '94.
**** JANETTE LORRAINE WILLIAMS XN MR O'GRADY
PN1213
Okay. Were there any - putting to one side the precise date, were there any redundancies or change in staffing numbers from that time until December 1996?---Yes. There were.
PN1214
Yes. What sorts of changes occurred ?---I was not in the business at the time but I have read about and have been told that there was a substantial reduction in numbers very early after Solaris Power was formed.
PN1215
Yes. Approximately how many?---Approximately it went from about 680 down to 450.
PN1216
All right. Yes. And to your knowledge was there any subsequently further departures and indeed some people being recruited to your entity?---Yes, there was. Yes. There was another period of reasonable number of departures which I think took the total numbers to about 410 at one point.
PN1217
Now, despite your enquiries this morning, have you been able to come across a nice simply list that has a clean break up of the people who were former MEU employees and the people who were former SECV employees?---No, I have not.
PN1218
No. And to your knowledge does such a list exist as a - for the situation that pertained as of December 1996?---Not to my knowledge.
PN1219
Is there any reason to treat those people differently, depending on whether they came from the MEU?---No.
PN1220
No. Excuse me, your Honour. I have no further questions, your Honour.
PN1221
MR BORENSTEIN: Your Honour, can we come back after lunch to cross-examine so we can consider the evidence - you are aware we have had no former notice of the evidence?
**** JANETTE LORRAINE WILLIAMS XN MR O'GRADY
PN1222
THE SENIOR DEPUTY PRESIDENT: This was put in response to Mr Georgiou's evidence, wasn't it?
PN1223
MR BORENSTEIN: Well, it is but it is also the applicant's job to make out their case and if they want to put their case in reply - these are jurisdictional questions that have to be proved to the Commission in order to satisfy that it can actually make these orders and we have allowed them to put this case in reply we just would like time to talk about and get instructions on the evidence given by the witness.
PN1224
THE SENIOR DEPUTY PRESIDENT: Yes. Mr Parry, what do you say - is there any difficulty in the witness being available after lunch?
PN1225
MR PARRY: I do not know. I have not spoken to her. Perhaps it is a bit ..... for her if she has been dragged in today at short notice and I am sure she would prefer to be somewhere else.
PN1226
THE SENIOR DEPUTY PRESIDENT: I am sure she would prefer to be somewhere else.
PN1227
MR PARRY: As many of us would, but not all of us.
PN1228
THE SENIOR DEPUTY PRESIDENT: Are you available after lunch?---Yes, I can be.
PN1229
Yes. All right. Well, I will take the lunch break. I will adjourn until 2 o'clock.
LUNCHEON ADJOURNMENT [1.07pm]
RESUMED [2.07pm]
**** JANETTE LORRAINE WILLIAMS XN MR O'GRADY
PN1230
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Borenstein.
PN1231
PN1232
MR BORENSTEIN: Ms Williams, prior to lunch you were taken through the - a number of depots and the employees of Solaris prior to the end of 1996 I think the date was, is that correct?---My recollections were based on at or around December '96.
PN1233
Are you aware of what the make-up of the employees were in - when Solaris took - was first formed in October 1994?---No.
PN1234
You were not aware?---I was not in the business at the time.
PN1235
And, through your discussions, you are also not aware of what the make-up of the employees was then?---My recollections would be vague. Just based on what people have said.
PN1236
Now in respect of - you stated that at Broadmeadows it was predominantly SECV. Now it is true, is it not, that at Broadmeadows the number of people from the MEU depots - the previous MEU depots were brought over to Broadmeadows?---Over a period of time.
PN1237
Yes. And that is between when Solaris was formed in '94 to the date that you are referring to, December '96?---And beyond then.
PN1238
Yes. And it is my instructions that around December '96, that it may - the SECV would have had the majority in Broadmeadows, about 60 per cent to 40 per cent?---A very vague proportion, yes. Roughly.
**** JANETTE LORRAINE WILLIAMS XXN MR BORENSTEIN
PN1239
Would that be consistent with your views?---I would probably go a little higher, 70/30.
PN1240
Okay. So somewhere between 60 to 40 to 70 to 30.
PN1241
MR O'GRADY: With respect, that is - - -
PN1242
MR BORENSTEIN: Well, I am asking her a question. Well, first of all she agreed with 60 to 40 and then - - -
PN1243
MR O'GRADY: Well, that is unfair, with respect, your Honour.
PN1244
THE SENIOR DEPUTY PRESIDENT: Well, she said she would have said it was a little higher I think.
PN1245
MR BORENSTEIN: After saying that vaguely - it was a vague one.
PN1246
THE SENIOR DEPUTY PRESIDENT: Vaguely and then she said a little higher.
PN1247
MR BORENSTEIN: So would it be somewhere between 60 to 40 and 30 to 70?---The 60/40 range sits within the 70/30. I would stick with the 70/30.
PN1248
Now, in respect of the Heidelberg depot you said that there was 50 employees there and it is my instructions that there are 80 employees. Would you dispute that?---If we are talking about December '96 I still think it is less than 80. It may have been 80 in the earlier days.
**** JANETTE LORRAINE WILLIAMS XXN MR BORENSTEIN
PN1249
Okay. When you say less than 80 are you saying that it could be somewhere between 50 to 80?---No, I wouldn't go right out to 80, 50 to 60.
PN1250
THE SENIOR DEPUTY PRESIDENT: Sorry, 50 to 60?---Yes.
PN1251
MR BORENSTEIN: And at the Heidelberg depot it was entirely MEU employees, wasn't it?---That is my understanding.
PN1252
Now, in respect of the depot in Spotswood, you said - sorry, can I just confirm that; in respect of the Heidelberg depot when you say 50 to 60, is that based on your actual knowledge, or is it in reliance of others?---That is my recollection.
PN1253
That is your recollection. And in respect of - at Broadmeadows, is that based on other's knowledge, or is it based on your own knowledge?---I gave my view at around 140. Others had a different recollection.
PN1254
Okay, and in respect of the break up at 60 per cent - sorry to 70 per cent - - -?--- The 70/30 you are talking about?
PN1255
Yes?---Yes. The 70/30 is my perception.
PN1256
Okay. And how did you form that perception?---Based on what I had known of the history of the site, that it had previously been the nor'west business unit of the SECV.
PN1257
And what dealings did you have with that site? Were you stationed at Broadmeadows?---No, I wasn't. I was based in the city.
PN1258
Okay. Did you see the employees of the Broadmeadow on a day to day basis?---Not on a daily basis.
**** JANETTE LORRAINE WILLIAMS XXN MR BORENSTEIN
PN1259
Now, sorry, back to the depot in Spotswood; is it true that the Footscray depot merged with the, or was transferred to the Spotswood depot?---I believe so.
PN1260
It is my instructions that there were approximately 60 employees at the Spotswood depot?---In December '96?
PN1261
In December '96?---60, I think that is high.
PN1262
You think that is high. Is it possible?---No, I don't believe so.
PN1263
Okay. Would you like to review your figure of 35 that you stated earlier?---Based on the movement of people from functions like the clerical accounts payable areas, out of there into the city, no, I think 35 is about right.
PN1264
And it is true - it is correct, isn't it, that it was entirely MEU employees at Spotswood?---Yes, I believe so.
PN1265
Now, at the Coburg depot, you would agree, wouldn't you, that it was MEU entirely as well?---Yes, yes.
PN1266
Now you mentioned that there were some managers, I think, located at the Lonsdale Street premises, you said there terms and conditions fell outside of the award?---I think I said on the basis that they were remunerated, it was outside of the award.
PN1267
My notes say "fell outside the award", but in any event whether or not they were remunerated or not they fell within the scope of the local government award, didn't they?---I don't claim to have detailed knowledge about how the award was structured and what classifications that it covers.
**** JANETTE LORRAINE WILLIAMS XXN MR BORENSTEIN
PN1268
Okay, so you are not aware whether the local government awards apply to these managers or not?---I can't say with certainty.
PN1269
Okay.
[2.15pm]
PN1270
And are you aware that prior to Solaris being formed, there were five MEUs, and there was one division of the State Electricity Commission?---Yes.
PN1271
And that State Electricity Commission had a certified agreement that applied to it?---I wasn't aware to that - of that.
PN1272
You weren't aware of that?---No.
PN1273
Okay. And you are also aware that in 1994 Solaris entered into a certified agreement?---I am not aware of one in '94, I thought it was - - -
PN1274
As a transitional - - -?---Ninety-five.
PN1275
There is a '94 agreement, the transitional arrangement?---Okay, sorry, I wasn't aware of that one.
PN1276
And there was also a 1995 agreement?---I am aware of the '95 one.
PN1277
I understand that it must be difficult to try and recall numbers back in December 1996, but on the numbers given by you, there was a substantial amount of employees, as at December 1996, that were ex-MEU employees, weren't there?---I am not sure what you mean by substantial? There were a number of certainly a number of ex-MEU employees in the business.
**** JANETTE LORRAINE WILLIAMS XXN MR BORENSTEIN
PN1278
It was almost - well, it was either half or half or - there were more MEU employees than SECV employees?---That is not my recollection.
PN1279
MR O'GRADY: Well, how can that be put on this witness's evidence, with respect?
PN1280
THE SENIOR DEPUTY PRESIDENT: Sorry?
PN1281
MR O'GRADY: As I understand it, my friend has taken this witness to her evidence, and he is asking her to accept, on the basis of that evidence, that there was a substantial number, and the witness has asked for clarification of substantial. Now, he has said, half and half. Now, that is not compatible with what this witness has told us about the situation, your Honour.
PN1282
THE SENIOR DEPUTY PRESIDENT: Mr Borenstein, you have heard the witness's numbers, and then I think if you are going to put numbers to her, then you should stick to the numbers that the witness has given.
PN1283
MR BORENSTEIN: Ms Williams, can you please explain what attempts you have made to find out the company's records of what the numbers of employees were back in December 1996?---We have tried to resurrect SEC HR information system, data. There was a link between Solaris/AGL systems, and the former SEC system, but that link has been lost, and can't be recovered, without considerable effort. I have also spoken - as I said, in the evidence earlier, spoken with a number of people who are in the business around that time to try and substantiate my recollections.
PN1284
So you are saying there is no - the AGL cannot provide a list of - well, first of all of all its employees that it has had since 1994?---I think it could be created, with considerable effort.
**** JANETTE LORRAINE WILLIAMS XXN MR BORENSTEIN
PN1285
And next to those employees' names, would there be a record of whether they came from an - or when they first started employment, and whether they came from the SECV or an MEU?---What is your question, please?
PN1286
Sorry, would the details of whether they came from the SECV or an MEU be on that list?---That would take considerable effort. It is not captured anywhere in our systems, at the moment.
PN1287
Now in respect of - are you aware of the current day numbers of employees?---For AGL nationally.
PN1288
No, for - - - ?---For Victoria?
PN1289
AGL, the company subject to this application?---The company subject to the EBA. I don't have a precise number.
PN1290
It is my instructions that of the employees that first started with Solaris, and have continued in employment all the way through to the current date, the majority of those employees are ex-MEU employees. Can you dispute that?---That is not my recollection or my view.
PN1291
What do you base your view on?---Going through the numbers, as I have already outlined, and understanding the history of the people working at that site.
PN1292
Yes. But I am talking about, as of today?---Oh, as of today?
PN1293
Yes?---Sorry.
**** JANETTE LORRAINE WILLIAMS XXN MR BORENSTEIN
PN1294
Of the employees that transferred over to Solaris?---Ye.s
PN1295
The majority of those existing - of those employees that have been in employment with AGLs predecessors all the way through, the majority of them are ex-MEU employees?---No, I don't think that is the case today either.
PN1296
And what do you base that view on?---I have been working as a human resources consultant for the last five years in the business, and worked in both the Agility part of the business, and in the retail part of the business, and based on my HR dealings, of comings and goings, I am still of the view that the MEU employees don't out-number ex SEC.
PN1297
Have you undertaken such an examination?---No.
PN1298
And you say that the employee records don't define whether they came from MEU or SECV?---Not electronically, no. Paper files will tell us in most cases.
PN1299
Okay, so you have got actual paper files where these people came from?---In most cases. Some of the files don't have any history in them. We have only got records from when Solaris was formed.
PN1300
And have you gone through these files to determine - - -?---I haven't.
PN1301
I have no further questions.
PN1302
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Borenstein.
PN1303
MR GEORGIOU: No questions, your Honour.
**** JANETTE LORRAINE WILLIAMS XXN MR BORENSTEIN
PN1304
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Georgiou. Any re-examination, Mr O'Grady?
PN1305
PN1306
MR O'GRADY: Ms Williams, you were asked some questions about ratios, but one of the sites that you weren't asked about was the Keilor site. Now, as I understand your evidence before lunch, that was where the terminal sub-station and system control work was being done. Is that the case?---That is correct.
PN1307
If you were asked to give a ratio of SECV to MEU employees at that site, what would you say the ratio was, to the best you can recall?---To the best of my recollection, it would be almost 100 per cent SEC.
PN1308
You were also asked some questions about the evidence you gave before lunch concerning award coverage at the Lonsdale Street site; do you recall that?---Yes.
PN1309
As I understood your evidence before lunch, that was a predominantly SECV site?---Yes.
PN1310
All right. And have you had to turn your mind which award would be applicable on that site?---The EEEE award.
PN1311
Now, you were asked some questions about the current situation and how many people had stayed over from the Solaris days. Have you been asked to look at the personnel files with a view to ascertaining how many former MEU employees are currently employed by AGL?---I believe I was asked to have a quick scan at one point, yes.
**** JANETTE LORRAINE WILLIAMS RXN MR O'GRADY
PN1312
Yes, all right. And do you recall what the result of that was?---I don't remember the exact number.
PN1313
All right. Mr Deprinse has given evidence that from his inquiries, the - - -
PN1314
MR BORENSTEIN: Well, that is not right. I don't understand how this comes from re-examination. It should have been dealt with in examination in chief. I didn't refer to this document by Mr Deprinse.
PN1315
THE SENIOR DEPUTY PRESIDENT: How does the issue arise, Mr O'Grady?
PN1316
MR O'GRADY: It is because, as I understand it, the witness was cross-examined about the current ratio of former MEU employees. And Mr Deprinse has given evidence about that.
PN1317
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1318
MR O'GRADY: I simply want to ask the witness whether she accepts or takes issue with what Mr Deprinse has said.
PN1319
THE SENIOR DEPUTY PRESIDENT: Yes. Yes, all right. I will allow the question.
PN1320
MR O'GRADY: Mr Deprinse has given evidence that from inquiries that he has undertaken and has had undertaken, there about 50 - 15 per cent of the current employees who are employed by one of the five MEUs, the remaining 85 per cent were either employed by the SECV at that time, or have been employed by Agility Victoria since that time. Do you agree, disagree or want to make any comment about that figure?---I don't think I can comment. I don't have enough detailed knowledge of the Agility business.
**** JANETTE LORRAINE WILLIAMS RXN MR O'GRADY
PN1321
I understand. You were also asked about whether or not a search of the records could be undertaken in order to ascertain which of your employees were from the SECV and which of them from the MEU. Do you recall being asked those questions?---Yes.
PN1322
And I think you indicated that it was a - it might be possible - but it would be a very complicated or difficult sort of task to undertake; is that - - -?---I think I said it would take some considerable effort. And by that I mean, time consuming.
PN1323
Is it something that could have been undertaken in the few hours we have had since 9.00 am this morning, when we saw Mr Georgiou's statement?---Oh, no.
PN1324
No. I have no further questions, your Honour.
PN1325
PN1326
MR PARRY: Well, that is our evidence, your Honour.
PN1327
THE SENIOR DEPUTY PRESIDENT: Yes. Are you prepared to do your - I do have your written submissions. Are you - I am sorry, it was - can you do the final submissions or is Mr O'Grady? I didn't think to ask that.
PN1328
MR PARRY: Well, I had better not dump that on Mr O'Grady at this stage in the day, although I am indebted to him for the work he has done on preparing the outline of arguments.
PN1329
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1330
MR PARRY: Your Honour, I did prepare an outline which I handed up earlier and hopefully distributed. I just want to make sure that the - there was a couple of drafts of this, as you can imagine in the rush. And I hope your Honour has a draft which has a paragraph 11 in it, which is, the issue is as of December 1996, what award determined - - -
PN1331
THE SENIOR DEPUTY PRESIDENT: Yes, yes.
PN1332
MR PARRY: You have that, right.
PN1333
THE SENIOR DEPUTY PRESIDENT: I do, yes.
PN1334
MR PARRY: I think - I am just going to make sure, because we distributed a version, and I am a little concerned that some of my friends at the bar table might not have that version. I do have spare copies of the one that I propose to rely on. It is 16 pages, the last paragraph - yes, B36. I think Mr Borenstein has it.
PN1335
PN1336
MR PARRY: We will give Mr Georgiou an old copy just to see if he is awake.
PN1337
MR GEORGIOU: Have you got a Braille version for me? Now, your Honour, I don't propose going through this line by line. Clearly, your Honour has to be satisfied with regard to the kind of employees and that that kind of employees are covered by a paid rates award. Now, your Honour, clearly paragraphs 3 and 4 deal with this. Does your Honour have a copy of - perhaps I could see if we could hand up a copy of some of the decisions that we referred to. I am sure your Honour is generally familiar with them.
PN1338
THE SENIOR DEPUTY PRESIDENT: I would be assisted by anything you can provide, Mr Parry.
PN1339
MR PARRY: We have list of authorities, your Honour.
PN1340
THE SENIOR DEPUTY PRESIDENT: Yes. Thank you.
PN1341
MR PARRY: We have individual copies that we can hand to the other side, and we will have bundle of those made up. Now, your Honour, there is, of course, the APRA authority - the APRA v CPSU, and also there is the decision of Commissioner Lewin in Yallourn Energy. And your Honour, that - perhaps as a starting point if I could take you to the Yallourn Energy case which is in tab 2.
PN1342
THE SENIOR DEPUTY PRESIDENT: Yes, thank you.
PN1343
MR PARRY: Your Honour, as appears from - I am trying to - I think there was debate in that case about whether the EEEE award was a paid rates award, and much material and argument was advanced to Commissioner Lewin. And it was - there was argument about the award, and whether it was a paid rates award or not. Now, I can't quite find the reference at the moment, but Commissioner Lewin had a bundle of material before him, and he made a finding that the EEEE award was a paid rates award.
PN1344
THE SENIOR DEPUTY PRESIDENT: Was that decision subject to appeal?
PN1345
MR PARRY: No, there was no appeal. It was - well, it was appealed in some respects, but I don't understand that was any part of the appeal. And indeed, some parts of - at that process ended up in the full Federal Court, and I will take your Honour shortly to where that ended up and how they dealt with these issues. Now, we have researched the file of Yallourn Energy, and we have that bundle of materials. Now, we have not assumed, of course, that this matter was going to be ever debated. We rely, for present purposes, on the decision and ruling of Commissioner Lewin. Perhaps I will just - I will find out where the finding was actually made, your Honour. Yes, paragraph 39. It starts with - they refer to - in paragraph 39 it is, your Honour.
PN1346
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1347
MR PARRY:
PN1348
In essence the applicant has tendered voluminous evidence which n my view establishes that the award is applicable to the employment of those employees at Yallourn Energy ...(reads)... at the material time as paid rates awards.
PN1349
Now, I arranged to obtain from my chambers the not - I don't intend filing the voluminous material, but there is a covering memo which has as reference various reasons that the Commissioner relied on to come to that view. And from my recollection, it was a statement originally made by Commissioner Johnson back in about 1988, when he decided to make the award. And it was said at the time that it was to be a paid rates award. And thereafter there are transcript references where all parties treated this award as paid rates, the 1989 award. And it was so treated as such up until converted in 1998.
PN1350
And we contend that the Commission can firstly rely on the findings of another member of the Commission - never appeal - where he has made that finding after full argument and had extensive material placed before him. It has never been a necessity of this Commission that it has to continually re-invent the wheel when matters are so determined and heard and we say, rely on that, as a secondary position. When that memorandum turns up I will provide that to the Commission or provide a bit more detail for the reason why Commissioner Lewin made that finding.
PN1351
Now, Commissioner, then the issue is, as we start off with in our submissions, what - when one turns to consider the kind of employees - what kind of employees should we be referring to. Now, perhaps, curiously, the starting point for this may well appropriately be the Full Federal Court decision that I referred to earlier, the decision of the CFMEU and in the matter of an applications for writs of certiorari, prohibition and mandamus, 2002 Federal Court Appeal reports. I have copies of that that I provide and hopefully one is going up to the Commissioner.
PN1352
THE COMMISSIONER: Yes, it is under tab 3.
PN1353
MR PARRY: Now, as was the case with much of that Yallourn Energy material, your Honour, there was much litigation and parties went up and down and anything that they thought worth challenging they challenged. And, of course, they didn't challenge the EEEE finding with regard to it being paid rates, but on paragraph 51 which is on page 20 of 27 - and they have a heading, "Kind of employees" and there is argument about whether it is discretionary or not. Really, the test is set out in paragraph 53 as the Full Federal Court saw it, your Honour and it is the third line:
PN1354
That state of affairs is the Commission's satisfaction that the wages and conditions of the kind of employees whose employment will be subject to the agreement were determined by a paid rates award. However, the presentation masks the reality that in practice there will often be enormity of question necessarily bound up in the judgment of whether the employees are such a kind. The present case is an example, the existing employees might be said to be of any or all of the following kinds and perhaps other kinds. Employees of the company, former employees of SECV, employees in the Victorian power generation and so forth.
PN1355
And it goes over the page:
PN1356
Different results will flow depending on which category of employees is regarded as the kind. No ordinary process of fact finding will resolve that question. A value judgment is required.
PN1357
And they go on and deal with that section 170MW and in paragraph 55 they deal with the paid rates award and the policy of 170MW(7), and relevantly for our purpose, at the end of paragraph 55:
PN1358
In some cases of which this appears to be one the ascription of the kind of the employees in question will reasonably be answered by reference to consideration of fairness and appropriateness of the practical consequences of the choice.
PN1359
And then it goes on in the next paragraph:
PN1360
Thus the initial jurisdictional condition may at least in some cases be better viewed as whether the Commission has undertaken a reasonable evaluative process to ascribe a kind or class to the employees.
PN1361
Now, your Honour, out of all that comes - it is basically your call, I suppose and it is a matter that your Honour will form a view on in light of the arguments and the evidence and so forth. But of course in this case one could say these employees are employees in the power industry in the State of Victoria and that is the ascription that the kind of employees that we would submit is an appropriate description. They could be said to be employees in the electricity distribution industry in the State of Victoria which is slightly more narrow, and as the Federal Court noted in regard to Yallourn Energy, there are any number of possible categorisations.
PN1362
We do however make the submission that when one looks at, for example, the rationale set out in the Parliamentary debates by Senator Murray, there is no reason for reading the kind of employee in a particularly narrow way. It is, indeed - I think the CEPUs submissions have contained within them the extract of Commissioner Murray's statements which are also cited in some of the decisions and that appears I think on page - I am sorry, paragraph 31 of the CEPUs submissions where I think Senator Murray was primarily concerned with protecting the position of government employees in Victoria and on page - the second page of paragraph 31 he really dealt with the concept of the kind of employees in that context in a very broad way and we submit that when one turns to a kind of employees, one deals with that in a broad way.
[2.40pm]
PN1363
As support for that I was taking your Honour to the CFMEU case. Senator Murray's statements are also set out in paragraph 58 of that. We say that supports our argument with regard to that. I mentioned to your Honour the document which was tendered along with the other documents before Commissioner Lewin. Whilst we don't say it is necessary that you go to this material it contains within it a description of that material and if I could tender to the Commission a document. It is obviously from the Yallourn Energy case. It is headed Applicable Awards and Agreements at Yallourn Energy Immediately Before 31 December 1996.
EXHIBIT #A7 APPLICABLE AWARDS AND AGREEMENTS AT YALLOURN ENERGY IMMEDIATELY BEFORE 31 DECEMBER 1996
PN1364
MR PARRY: Now, to return to the proposition about the power industry or a more narrow definition, the Commission will note from Commissioner Lewin - the extracts from Commissioner Lewin's decision set out in our submission on page 3 in paragraph 35, in the middle of the page, Commissioner Lewin came to the view that employees in the power industry in Victoria are a kind of employees to whom the subsection applies and as I have taken the Commission to, the Full Federal Court didn't overturn that approach.
PN1365
Now, the argument, I suppose, to get to the detail of it, your Honour, is that back in 1993, as is the case, the SEC ran much of the power industry in the State of Victoria and was bound by a number of awards, the predominant one being the 1989 SECV Award. Now, at that time there was also distribution going on through some of the local government instrumentalities and what your Honour has called MEUs and there were some 11 MEUs in Melbourne. When privatisation came around what happened was that there was new entities created and one of those entities created was Solaris.
PN1366
Now, at that time Solaris soon thereafter entered into an agreement - a transitional agreement and that is, I think, attached to the statement of Mr Georgiou and that is, I think, exhibit - it is a transitional agreement struck - and it is attachment MG4. Now, at the time it was said by the parties that parent awards, being the 1989 award and the Victorian Local Government - Local Authorities Interim Award. Now, your Honour will also note from page 4 of that that this was very much an interim arrangement and the parties intended, as is set out at the bottom of page 4, tot negotiate an effective and mutually beneficial enterprise agreement.
PN1367
Now, what happened thereafter was that such an agreement was negotiated and that agreement is the attachment MG5 to the statement of Mr Georgiou. Now, we are here then very much in the world of determining what was the award that determined the wages and conditions of the kind of employees who will be subject to the agreement in December 1996. We identified that issue in paragraph 11 of exhibit A6, our outline. Now, it really doesn't matter what the parties say as to which award applies. Really it is a matter of law as to which award applies.
PN1368
The parties might say all sorts of things about why a particular award applies or they might even include it in a certified agreement, but that doesn't change the legal position. Now, we say that the awards that are relevant - the Local Government awards and the SECV 1989 Award arguably both transmitted to Solaris and I don't think there has ever been a dispute that Solaris was a transmittee or successor. So section 149(1)(d) of the Act provides that that award becomes binding on the successor. And so accordingly at a prima facie level the Local Government awards and the SECV Award became binding on Solaris.
PN1369
The issue, however, in section 170MW(7)(a) and (b) is not which awards bind but which awards determine the wages and conditions. Now, you then have a position where you have perhaps more than one award binding and say you have - and I think the evidence has been given today that really the operations in December 1996 were essentially integrated. They were the same - people were doing the same functions. It was one organisation, Solaris, providing distribution, construction, maintenance to electricity uses in the north-western area of Melbourne and outlying.
PN1370
Now, one doesn't say that an award follows an individual employee. That is not the legal position. One looks at where the obligation is and the obligations of the employer is bound by two awards. It has to make a choice between those awards as to which determines the wages and conditions. Now, as we say, there are two possibilities. One is that the 1989 award applied to all employees of Solaris and the second is both the 1989 award and the 1991, the LGAs apply and presumably determine the terms and conditions.
PN1371
Now, for the sake of our argument we don't particularly care either way. We say that on either basis on the evidence before the Commission either the SECV Award was the dominant primary award that applied - I will take the Commission to why that was the case shortly - or if they both applied then you look at the kind of employees and ask whether that kind of employee in the power industry in Victoria would have or did have their work regulated by a paid rates award. Now, to stay with the first proposition there are some decisions of this Commission and the Industrial Court which deal with competing award coverage where you have two awards that apply and you have to make a decision between which award applies.
PN1372
And the first one of those is a decision of Moore J in Logan v Otis Elevator Company Pty Ltd. It is unreported but I have copies. The citation is decision number 200 of 1997. It is a 48 page decision and it deals with a number of other matters which aren't really relevant and what I have is an extract of that to hand to the Commission.
PN1373
PN1374
MR PARRY: I have a full copy of it if anyone wants to look at it after I have - but I only intend referring to the pages that I have handed up.
PN1375
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1376
MR PARRY: It is on page 37 of 48 and the question is set out in the second bottom paragraph. The critical question is whether he was employed - Logan was employed as a local rep working as an electrician with special class of electrical mechanic and there was - at the bottom of the page his Honour starts out with the appropriate principles to determine whether Mr Logan worked as an electrical mechanic. There is then detail set out - and I am not going to take your Honour through all this, but there is a recitation of some of the decisions of the New South Wales Industrial Commission and - where things are covered by more than one award.
PN1377
And the - I think on the second page - on page 38 of 48 there is reference to a decision of NEI Pacific Limited v Nichol 1994 54 IR 355, and the assessment is made by looking at the work that is performed and, your Honour, the decision goes on in the second page - on page 39 of 48 halfway down the page where the principle enunciated by his Honour Sheldon J in Ware, which is set out above, and if one looks at the major and substantial employment and also at the other parties - the second bottom paragraph on page 39 of 48. So it is really an assessment, we say, of the substantial major employment.
PN1378
Now, your Honour, there is a decision of the Full Bench of this Commission asking the Industrial Relations Commission of Australia - Quint S0982 on 11 June 1999. It is an unfair dismissal case and at the bottom the citation, the relevant parts appear in paragraphs 18 onwards and thy go on 18 - paragraph 18, 19 and 20. Yes, and, your Honour, also in paragraph 44. Now, your Honour, our propositions are fairly simple here. It doesn't matter what parties agree on, whether awards apply or not, it is a matter for - it is a legal question.
PN1379
Ultimately the Commission has before it a question of whether Local Government awards apply or 1989 award applies. We contend that the parties have always treated the 1989 award as the predominant and dominant one. We say - and we gained a fair bit of support for this from what happened with regard to the parties themselves in their agreement that they reached in May 1995. Now, what happened in 1995 was that the parties did reach a certified agreement and this was the one that was in force when December 1996 rolled around.
PN1380
And we say on any perusal of that it is fairly clear that it was the 1989 award that was the guiding light, as it were, for the terms reached. Now, we don't say that is decisive; we simply say it is indication that the parties were generally taking their guide from the SECV Award. For example, we rely on that in paragraph 33 of that enterprise agreement which says that overtime is to be calculated in accordance with the 1989 award. Section 34, casuals, are to be employed under the 1989 award. Sick leave to be granted in accordance with the provisions of the 1989 award.
PN1381
And, indeed, as was clearly the case at that time, the hours of work were being moved to fit with the 1989 award, being 37-1/2 hour week. And, indeed, the curious part is that the Local Government awards are only mentioned once and that is in the parent awards. Now, we contend that the dominant award was the 1989 SECV one. It was the award that determined the wages and conditions of these employees. It was the main award in the industry. Now, we have heard some debate about the industry. Indeed, I think exhibit A2 describes the background of the power industry in Victoria.
PN1382
The great irony of the position of Mr Georgiou and others is when they distribute their memoranda around in this industry - and I think I have tendered it as exhibit A5 - what do they call it, the power industry, and they really are stretching it a bit by saying somehow there isn't a power industry in Victoria and their members aren't in it. They seem quite comfortable about distributing a newsletter across the sector under the heading power industry. So it really beggars belief to run an argument that there isn't a power industry. Might I also say in that context that the ASU are here. They, of course, are certain that they have coverage and we don't take issue with that.
PN1383
The reason they have coverage is because they made a section 118A application back in 1997, I think, and I have a decision of Senior Deputy President Polites which is in print P3791. If I could hand that to the Commission. This is a full one, not an extract from it. And the grounds upon which the ASU - their application is set out in the first paragraph of the decision - I am sorry under the heading Decision the Commission will see that the application was made on 25 January 1996 and the ASU asserted in their application that they wanted to cover the industrial interests of various of these entities, including Solaris Power.
PN1384
Their grounds were because the SEC - over on the other page - was the SECV had been broken up. The employees of the SECV were covered by the 1989 award and in effect the ASU wanted to pursue them and Solaris appeared, and without going through the detail of it, the application was granted. The ASU then had coverage of all these entities and largely relied on by the Commission - his Honour was on page 10 of 17, the pattern and history of award coverage. Of course that is the coverage of the 1989 award and then there was a demarcation agreement reached, which has been strongly relied on, on page 11 of 17.
PN1385
We say that supports the sort of treatment that the unions' approach have had to this sector. Either you can describe it as the electricity power sector - I think the demarcation agreement on page 11 of 17 calls it the electricity industry. When Senior Deputy President Williams came to make the actual order that arose from Senior Deputy President Polites' decision in print P7958, he actually headed it Representation of Employees in the Electrical Power Industry, and I hand that up to the Commission.
PN1386
Now, we say that this sort of material can assist your Honour in making the evaluation of the kind of employees and the sector that they work in and, indeed, we contend all the material before you would indicate that the kind of employees here dealt with, being employees in the electrical power industry in the State of Victoria, were the kind of employees that had their employment regulated by the 1989 award in December 1996. Now, your Honour, there is a secondary argument and that is accepting that the 1989 award applied and also accepting that the Local Government awards applied and may have determined some terms and conditions.
PN1387
Now, indeed, the Commission has fairly clear evidence that the terms and conditions of the employees in 1989 were determined by a certified agreement and that underpinning those was on the face of the documents before the Commission at that time two awards. Well, that is not decisive of whether it determined the conditions, but less assume that it did to some extent. Now, we say that doesn't really change the position at all and I am not going to take the Commission through the detail of this, but we have set out what happened in the APRA case and we have set out what Senior Deputy President Polites said in paragraph 15.
PN1388
What happened in the APRA case was in 1998 this - APRA was formed by these entities all coming together and the employer who was opposing the 170MW came and said well, you have got to look at each of these employees and where they came from and assess whether they are under a paid rates award or not and both Senior Deputy President Polites and the Full Bench said that - you don't have to go to that extent. We don't have to come here and say who was employed under the Local Government Award and who was employed under the 1989 award, that is not the point of section 170MW(7)(a) or (b).
PN1389
And, indeed, Senior Deputy President Polites said in paragraph - as we set out on page - paragraph 15 - paragraph 53:
PN1390
It is not to the point that some employees were from the state public services and may or may not have worked ...(reads)... who would be covered by a paid rates award.
PN1391
And, indeed, the Full Bench dealt with that and noted, as is set out in paragraph 16 at the bottom of the page - I won't read out the whole extract:
PN1392
The contract for the ground of appeal raised by APRA in this case, that consideration does not resolve the issue. It is necessary to find upon whether employees of the relevant kind were or would have been subject to relevant paid rates awards.
PN1393
And they ask whether it is - on the next page whether it is proper to look at the class and finally in paragraph 37 they agree with the FSUs submission that enquiring into whether some members of the relevant class had the award applying to them is not a determinative factor. So it is not a number exercise where you count up the numbers; it is a matter of looking at the kind of employees and asking. However, if the Commission does look at the numbers, and we have done some fairly quick calculations on Ms Williams' evidence, and we - there are two possible ways.
PN1394
The Commission will recall that her evidence was with regard to Broadmeadows there was a variation in the numbers. She had a view at one level that there were some 250 - I am sorry, somebody had told her 250 at the time, another view was 140. So you have got two possible numbers. If you assume the smaller number, on our rough figures those that formally came from the SECV were around 71 per cent and if you assume the larger number of 250 it is some 77 per cent. And, indeed, her evidence is, and if she is in a position to know, that continues - those sort of broad proportions continue to be the position.
PN1395
Now, if we - of course, we do rely on that to say that that demonstrates that really the SECV Award is the dominant award and it is the relevant award for the assessment of the kind of employee. Now, that is our submission with regard to the paid rates award, your Honour. As to the no reasonable prospect of settlement we have called Mr Deprinse and Mr Edwards. As the Commission will appreciate there is - and I think we have set it out - we have set out fairly - in a fair bit of detail the authorities in this area. I don't propose taking your Honour through those; I am sure you are familiar with them.
PN1396
THE SENIOR DEPUTY PRESIDENT: I have read your submissions.
PN1397
MR PARRY: Yes. We do note that there is relevant factors set out in paragraph 26 - included in our period of present negotiations. They have been going on for some seven or eight months. Negotiations have reached impasses. To be fair, the 36 hour has been a very solid impasse for a very long time, and the superannuation issue, as your Honour has heard from the evidence of Mr Edwards, was raised before the Commission last year at a very early stage. So superannuation and the 36 hour week have been significant issues between the parties for a very long time. Your Honour has heard evidence about the industrial action, and whether that has led to changes in negotiating positions and the Commission has really - has not heard any evidence to suggest that the industrial action has affected the negotiating positions on significant matters.
[3.10pm]
PN1398
The AIRC has been involved a number times, as has - as had Government appointed mediators, former Commissioner Merriman, former Minister for Labour Pope, have both been involved. There have been senior officers involved in negotiations, and all parties have been seriously involved in trying to resolve the issues. Might we say, having seen the unions submissions today, that their argument with regard to this seems to suggest, and I think it is at the latter part of their submission, that somehow there has been a lack of good faith or that the - or that somehow Mr Deprinse or company officers have not been negotiating genuinely. And we note that that proposition wasn't put to any of them in the witness box.
PN1399
THE SENIOR DEPUTY PRESIDENT: In any event, your position is that fault doesn't lie with anybody, it is just a - - -
PN1400
MR PARRY: We are not pointing the bone at anybody. At the end of the day it is not necessary under this section to find fault. We are not contending that the unions haven't been genuine in seeking what they want to achieve. So we take issue with that sort of submission. Finally, your Honour, we do rely on the evidence of Mr Deprinse, where he goes through a fairly detailed chronology, and we say the Commission can be satisfied that there is no reasonable prospect of resolution as contemplated by subsection (c). Now, your Honour, we, as a primary remedy, seek the termination of the bargaining period. The Commission will be aware that Commissioner Mansfield has - had opted for a suspension route. We repeat that we seek termination; but, obviously, your Honour has a discretion with regard to that. We do make the observation that there is a concern about escalation of industrial activity, as Mr Deprinse has referred to, and - - -
PN1401
THE SENIOR DEPUTY PRESIDENT: Just before you go to that. Mr Parry, I just wondered, with that notion of suspension, if subsection (7) of 170MW is the circumstance, and it is established, is suspension consistent with that notion? If I am satisfied that there is no reasonable prospect of the negotiating parties reaching an agreement under division 2 or 3, assuming I am satisfied as to the other elements, first, is suspension logically available or appropriate?
PN1402
MR PARRY: Well, in my submission, not. Section 170MW(7) is a section that rarely contemplates that at some stage perhaps parties will move beyond being under the paid rates in awards, and I don't really - have not seen the particular logic in there being a suspension. I just make that as a secondary position, your Honour. I am not - - -
PN1403
THE SENIOR DEPUTY PRESIDENT: No, no, I understand.
PN1404
MR PARRY: - - - submitting it as a primary position.
PN1405
THE SENIOR DEPUTY PRESIDENT: Well you said your primary position is termination, anyway. But you, I think you indicated that - or you didn't indicate, you drew my attention to the fact that Commissioner Mansfield had made an order suspending.
PN1406
MR PARRY: Yes, sir. In a way his decision is a sort of temporary one, it is a sort of adjournment, almost, of the main proceeding, because I wouldn't think that it could be contended that Commissioner Mansfield has made a final determination, because he is bringing it back for further submissions. It is almost a middle position; and one would assume that - - -
PN1407
THE SENIOR DEPUTY PRESIDENT: It is almost an interim order.
PN1408
MR PARRY: Well it is almost an interim order, that is so. It is sort of saying well we will come back in six weeks time and then if the matter is presumably not fixed at that time, and as I understand it, it is not fixed in a number of contexts, at that time, presumably, he will then exercise final powers, and will be, presumably, the companies will then be telling him that he should terminate at that time. But the reason I raise Commissioner Mansfield is that he did - if your Honour were minded to go down a track like that I would just indicate that Commissioner Mansfield also made a direction about there not being a ramping up of industrial action. And that is the purpose I raised these very much secondary positions to draw them to your attention. If the Commission pleases. Unless there is anything further, your Honour.
PN1409
PN1410
MR BORENSTEIN: That is all right, your Honour. What the applicants to this matter are asking the Commission to do is exercise a function under part VIB of the Workplace Relations Act. Now, in the Yallourn matter - and I think you have a copy of that decision.
PN1411
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1412
MR BORENSTEIN: Commissioner Lewin sets out three observations which he comes to about exercising functions under part VIB, and I set them out at paragraph 2 of my submissions. Now I have underlined there that the public interest is not a function - is not factor to take into account when exercising such a function, therefore, any submissions, although not made primarily, we submit that the Commission should not take into account the fact that the public may be affected by the industrial action in this matter and that the termination of the bargaining periods may stop industrial action, therefore stop any effects on the public. Therefore, the Commission should not, in any manner or in any way, take into account the effect on the public. I also underline, at paragraph 7 of Commissioner Lewin's decision, the fact that:
PN1413
The Commission must be careful to ensure that the object of the legislature which imposes responsibility upon the parties to determine matters affecting their industrial relationships at the workplace at enterprise level is given effect to as far as possible in performing the functions prescribed in the part VIB
PN1414
We submit that the Commission should start off from the position that it shouldn't interfere in negotiations between parties at an enterprise level.
PN1415
THE SENIOR DEPUTY PRESIDENT: 170MW, of course, allows us to, doesn't it?
PN1416
MR BORENSTEIN: It does. But we say that taking into account the objects of the Act it is a function only to - it is a function that the Commission can exercise but, we submit, the Commission should be loathe to exercise it. And in applying the tests and jurisdictional requirements of subsection (7) it should keep that in mind, as well. Now the first - I will take the Commissioner through each jurisdictional step because that is what is required to be proven for the Commission to exercise this function, to make an order under MW(7). Now, the first step is to determine what kind of employees will be subject to the agreement. Now, in our submission, the employees should be defined as persons employed in the electrical distribution business in the northern and western regions of Melbourne.
PN1417
THE SENIOR DEPUTY PRESIDENT: Why should it be so confined?
PN1418
MR BORENSTEIN: Because, we say, from 1994 onwards, and as at the relevant date, which MW(7) refers to, 31 December 1996, all through to the current day employees of AGL have been employed in the north - and have serviced, employed to service the northern and western regions of the Melbourne metropolitan area. And at paragraph 6 I set out what we rely upon to establish this fact. In paragraph (a) I set out what I just stated, that these employees have only known, prior to and since 1996 - so immediately prior to 31 December 1996 to the current date, they have only been employed in a business in the electricity distribution in the northern and western regions of Melbourne. And - - -
PN1419
THE SENIOR DEPUTY PRESIDENT: But do you agree that that is the power industry? That is the power industry?
PN1420
MR BORENSTEIN: Well, I think that is an inaccurate description of what these employees are, and what kind of employees they are. An example which Mr Georgiou puts in his affidavit is that you are saying that both the sellers of cars on the shop floor and those who build cars in the Ford factory down at Geelong are the same kind of employees.
PN1421
THE SENIOR DEPUTY PRESIDENT: Well why do the union notices refer to them, the power industry, as part of the power industry?
PN1422
MR BORENSTEIN: Well, I think it is a pretty broad brush approach, and I don't think much would be really gleaned from the union pamphlet, which is pretty much propaganda material. I wouldn't - well, it is setting up meetings - - -
PN1423
THE SENIOR DEPUTY PRESIDENT: I don't think you mean that, do you, Mr - - -
PN1424
MR BORENSTEIN: No. But I would hardly call it a legal document and one which will bind a union or an organisation.
PN1425
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1426
MR BORENSTEIN: Maybe only Mr Georgiou's pamphlet was propaganda. But, in any event, I think it is taking it way too far to rely on these documents to say that because there is a pamphlet which refers to the power industry of Victoria that automatically brings - makes these employees kind of employees, employees of the power industry. We would note that the Solaris pamphlet, which is exhibited to Mr Georgiou's affidavit, clearly refers to its business of electricity distribution serving the northern and western regions, which it then calls in the pamphlet "the Solaris area and our region".
PN1427
THE SENIOR DEPUTY PRESIDENT: But that almost suggests the premise of our region of the power industry, doesn't it?
PN1428
MR BORENSTEIN: Well it is not the - the power industry is made up of, in the SECV days, of a huge number of different sort of instrumentalities and services, and operations. So I think it is a bit too much to say that it is a region of the power industry. It is the region they look after, and their businesses - it is all they have to do with. They don't look after other areas of the power industry or distribution networks or anything else like that. They don't look after generation. You know, they are not involved in those things. They were formed prior to 31 December 1996 to look - and their region, their business, was solely directed towards the northern and western region of Melbourne.
PN1429
Now, if you take your Honour's point, why wouldn't it be then the power industry of Australia, because they are all involved in that? It just - it makes sense, and we say it is much more appropriate to actually look at what the kind of these employees are, what the duties they have been performing historically, you know, since 1994 to the current day, and from that you will glean that they have only been involved in the northern and western regions. This is not like the APRA case where the entity was formed after 31 December 1996. This entity was formed prior to that date, it had business, these employees were employed in that business, and it continued to do that since that time. Then to go, throw them into a much broader industry that they have never been involved in or they have never been employed by an entity that has been involved in such, was just taking it too far, we submit.
PN1430
And the submissions we make on why the Commission should determine that the kind of employees should be restricted to the northern and western region of Melbourne is set out at paragraph 6 of the submissions.
PN1431
THE SENIOR DEPUTY PRESIDENT: Yes. I have read your submissions, too, by the way.
PN1432
MR BORENSTEIN: Now, we say there is support for this type of characterisation in a number of cases of the Commission. And at paragraph 7 is set out the Caltex v AWU case, print 6320. I will hand that up. Now in this case the employees were employed by companies who operate the Kurnell Refinery. And as like in this case, there is an oil industry and there is also - and the Kurnell Refinery makes up - is part of that oil industry, but it is a distinct organisation that looks after the Kurnell Refinery. Now in that case, Senior Deputy President Harrison, as I have set out, defined the kind of employees with reference to the occupation of the employees and the actual real place of work, that is operators at the Kurnell Refinery. He didn't say employees in the oil industry or operators in the oil industry; he limited it with reference to occupation and the actual real place of work.
PN1433
And you will see there at paragraph 28 he says, they may - the kind of employees, in reference to the kind of employees, he says:
PN1434
They may mean Kurnell Refinery employees or mean oil refinery or even oil industry employees. In this decision I have applied the words as meaning Kurnell Refinery employees. It is probably the only sensible way to treat those words in the context of section...
PN1435
In the relevant section. So what your Honour was raising before, in this case Senior Deputy President Harrison has done the opposite and has restricted it. And we submit - - -
PN1436
THE SENIOR DEPUTY PRESIDENT: So when the ETU says it is seeking a 36 hour week in the power industry it is not seeking a 36 hour week against Agility?
PN1437
MR BORENSTEIN: We have made a log of claims for a 36 hour week versus Agility; and it's a misleading term to describe it as the power industry. It is not an accurate way of describing it. It is way too broad, and it is not specific enough, and it is a misleading way of describing these kind of employees. Now if you took it like that, if you said - he you took that statement by the ETU to say that we are seeking a 36 hour week in respect of generators or wherever else, well, it is just not applicable. That statement is not one that you could accurately define as what it is supposed to be aimed at, and it would be clear that if you were told that you would ask, well, who are they claiming against, and then you would find out that we are claiming against a number of different companies; and without being told what companies it is you would not be able to identify what the ETU are saying.
PN1438
Now, another case, a similar approach was taken by Senior Deputy President Watson in the IEU v Catholic Church case, print 936704. I will hand up a copy of that case.
PN1439
THE SENIOR DEPUTY PRESIDENT: Yes, thanks.
PN1440
MR BORENSTEIN: Now, in that case, again, his Honour gave specific details of the kind of employees, and he categorised them as school employees within independent catholic schools in the Northern Territory. And that actual group that he defined it as exactly coincided with the employee group to be covered by the proposed agreement. Now, his Honour in that case had a number of different ways he could categorise it which were much more broad as in employees within independent schools in the Northern Territory, or could have just been schools. So we submit that the Commission should not be - should not see that it has to take a broad brush category of employees but can actually look at what these employees do and what they have been doing, and to determine what kind they actually are. And we say that is a much more appropriate way of handling this matter because it is the actual employees who are having their rights affected; the actual employees of the company.
PN1441
Now a further case is the Commissioner for Public Employment v LHMEU, print 921358. Now at paragraph 48 of that decision Commissioner Eames determined the kind of employees as actually the employees who will be subject to the agreement. So that was the:
PN1442
...whose employment was subject to the Northern Territory Public Sector 2001 Certified Agreement
PN1443
So he actually said the kind of employees are the employees who are bound by the current expired agreement. And, again, we say the same should be done here. I will hand up a copy of that decision.
PN1444
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1445
MR BORENSTEIN: And, again, Senior Deputy President Polites in P & O Catering and Services v AWU examined the kind of employees, and defined them as catering employees in Bass Strait. He didn't choose to go with employees in the catering industry in Victoria or Australia; instead he limited the location just to Bass Strait. We submit he did that because that is where P & O operated. The same as the way that Agility operates in the northern and western regions of Melbourne. I will hand up a copy of that decision. And we submit that - and Senior Deputy President Polites decision was also upheld on appeal, in print number R0148.
PN1446
So we submit that it can be taken from these above decisions that it is clearly preferred to keep as close a nexus as possible between the actual employees to be subject to the proposed agreement and the definition of the kind of employees for the purposes of MW(7). And we submit - also submit that this is especially so where the employees have continually been employed in that business subject to the proposed agreement since immediately prior to 31 December 1996. And that is the case in respect of the AGL employees who since immediately before 31 December 1996 have always worked in the northern and western regions of Melbourne in the electricity distribution business; and they have all had continuity of the employment during that period.
PN1447
Now, at paragraph 17, I put my submissions as to why the Commission should not - why these employees are not part of the power industry, and why it is inappropriate to call them as employees of the power industry; and at paragraph 17 I set that out. And it is clear from that that the - as what Commissioner Lewin defined was the power industry, the SECV, that was clearly disbanded in 1993. We say that the SECV and what Commissioner Lewin defines, the power industry had absolved before 31 December 1996 completely, and split up into a number of different pieces. And, therefore, we say it is wrong to say that the employees of Solaris and its successors were employees of the power industry, because they just weren't; they were employees in the electricity distribution business in the northern and western regions.
PN1448
And to try and group them in a number of - in numerous unrelated companies is just wrong, in our submission.
PN1449
I gave you the vehicle industry example, and the same could be said about a person who works at Safeway to a farmer who works in the land; they are both in the food industry. But to say that the same type of kind of employee, I think, is inappropriate. Now in respect of trying to link the employees of AGL to the case of Yallourn we say is incorrect, as the case of Yallourn involved a completely different set of circumstances. Firstly, Yallourn was not involved in the electricity distribution business. Secondly, Yallourn didn't have any specific region that it provided power to. Thirdly, Yallourn didn't have as a predecessor local councils.
PN1450
THE SENIOR DEPUTY PRESIDENT: Well the SECV, I suspect, had as its predecessor local councils, because originally or historically local councils were responsible for the generation of electricity.
PN1451
MR BORENSTEIN: In the four days that I had, my research didn't go back that far but maybe Mr Georgiou might know something about that.
PN1452
MR GEORGIOU: That is twice now.
PN1453
MR BORENSTEIN: But, in any event, we say that in respect of the - in respect of Yallourn they were all ex SECV, and that the majority of Yallourn's employees were not from local councils. Yallourn was not bound by the local government awards which were set out - which are referred to in Mr Georgiou's affidavit and again Yallourn certified agreements did not have these local government awards as their underpinning award.
[3.40pm]
PN1454
So we submit there is a significant difference between the circumstances with Yallourn and its employees and those employees employed by AGL. So therefore we submit that our definition of the kind of employees is the correct one and based on that definition we move onto the next step as to whether - whether the wages and conditions of that kind of employees were determined by a paid rates award or would have been so had a certified agreement not prevailed over the award. Now, there are three awards that applied to the new Solaris entity by way of transmission which I think is admitted by the applicants and they were the two local government awards and the EEEE Award.
PN1455
Now, I think in paragraph 21 there might a mistake there. The local government awards are both minimum rates awards but I am not sure - is there any issue as to that? And there is no issue as to that. I could provide the decisions for making those awards in any event. I will leave the argument of whether the EEEE Award is a paid rates award for Mr Georgiou to make and we will adopt his submissions in that respect however, assuming the Commission finds against us on that issue, we submit that it is not enough in any event for only some of the employees to be covered by an alleged paid rates award.
PN1456
Now, as STP advised in the APRA case, it did examine each award that applied to the employees as at 31 December 1996. The difference between the APRA case and our case is (1) APRA didn't come into existence until 1998 so that was after the relevant date as set out in the MW(7).
PN1457
THE SENIOR DEPUTY PRESIDENT: You don't say his Honour's decision is wrong?
PN1458
MR BORENSTEIN: No.
PN1459
THE SENIOR DEPUTY PRESIDENT: You say it is distinguishable?
PN1460
MR BORENSTEIN: Yes. Secondly, the facts in the APRA case were that there was only a small number of employees that transferred over from the RBA, the Reserve Bank of Australia and the high majority came from - I think it was the financial government - now, on the evidence - on our evidence, Mr Georgiou who has extensive experience in dealing with Solaris and was there at the time says that the clear majority of employees that transferred to Solaris were ex-MEU. And we say his evidence should be preferred because he actually eye witnessed the transfer and could make an observation from that.
PN1461
But in any event the figures raised by my friend are a bit different to the figures that I could calculate from the evidence given today by Ms Janette Williams. And I hope my maths wasn't wrong, I don't have my calculator with me.
PN1462
THE SENIOR DEPUTY PRESIDENT: Don't ask me to correct it.
PN1463
MR BORENSTEIN: What I - what my notes say is that Lonsdale Street - there was approximately 70 employees predominantly SECV.
PN1464
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1465
MR BORENSTEIN: Now - - -
PN1466
THE SENIOR DEPUTY PRESIDENT: I think she subsequently gave evidence that they were covered by the EEEE Award, didn't she?
PN1467
MR BORENSTEIN: No. No, I think - I don't think that is right, they were people from MEU and therefore were - it would have transmitted through the - local government awards would have also transmitted through with those people. Sorry, can - - -
PN1468
THE SENIOR DEPUTY PRESIDENT: I thought, in re-examination, she was specifically asked about Lonsdale Street and expressed a view that the EEEE Award would apply there.
PN1469
MR BORENSTEIN: Well, there is no evidence of how it actually applied and what her opinion is of whether - - -
PN1470
THE SENIOR DEPUTY PRESIDENT: Anyway - - -
PN1471
MR BORENSTEIN: - - - the award applies or not is not really the question.
PN1472
THE SENIOR DEPUTY PRESIDENT: All right.
PN1473
MR BORENSTEIN: It is a matter of law in a sense. She also I think discounted those managers who fell outside the EEEE Award or her enumeration which we submit such people were - did fall within the local - were MEU - ex-MEU employees and did fall within the local government awards but in any event she said that 70 - there were 70 people predominantly SECV.
PN1474
THE SENIOR DEPUTY PRESIDENT: All right.
PN1475
MR BORENSTEIN: So on that basis I gave 50 to the SECV and 20 the MEU. There was no actual break down. I thought that is a pretty fair - unless they want to go 40, 30.
PN1476
THE SENIOR DEPUTY PRESIDENT: Should we take a straw poll on how many?
PN1477
MR BORENSTEIN: That is right.
PN1478
THE SENIOR DEPUTY PRESIDENT: How many predominantly.
PN1479
MR BORENSTEIN: I am not sure what the figures that was provided by - - -
PN1480
THE SENIOR DEPUTY PRESIDENT: No, that is all right, Mr Borenstein.
PN1481
MR BORENSTEIN: - - - the applicant, I assume it was about near zero, 70 but - - -
PN1482
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1483
MR BORENSTEIN: In any event, that is Lonsdale Street. At Queen Street she said that there were 40 people and there was just marginally SECV.
PN1484
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1485
MR BORENSTEIN: So in that I made it 25 to 15. I think I am being pretty generous there. At Broadmeadows, she said there was 140 people, that was her direct knowledge and we say that the hearsay evidence of other people should not be relied upon. She gave evidence that 70 per cent even though she wavered around 60 per cent, I will say - I will give the applicant 70 per cent which, in my rough calculations without a calculator, would make it 95, 45. In respect of the Heidelberg depot she said 50 employees. I said my instructions were 80. She then said 50 to 60. So - - -
PN1486
THE SENIOR DEPUTY PRESIDENT: Sorry, which one was that?
PN1487
PN1488
MR BORENSTEIN: The Heidelberg depot.
PN1489
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1490
MR BORENSTEIN: And she said that that was entirely MEU employees so I put down 60 MEU employees, zero to the SECV.
PN1491
THE SENIOR DEPUTY PRESIDENT: She was pretty firm on 50 though, wasn't she?
PN1492
MR BORENSTEIN: Well, not that one, I don't think.
PN1493
THE SENIOR DEPUTY PRESIDENT: Anyway, yes, go on.
PN1494
MR BORENSTEIN: I am happy to cut - split the difference. In respect of the - - -
PN1495
THE SENIOR DEPUTY PRESIDENT: Spotswood, 35 MEU.
PN1496
MR BORENSTEIN: Spotswood, well, we say there was - it was our instructions, 60. I have raised that to 40 but in the event, 35 to 40, I don't mind, so zero to 40. In respect of Keilor, there was 35, which she said was predominantly SECV, 100 per cent.
PN1497
THE SENIOR DEPUTY PRESIDENT: Did she say they were all SECV?
PN1498
MR BORENSTEIN: She first said predominantly but then in re-examination said 100 per cent so I will give 35 to zero. And then at Coburg, there was 30, which were entirely MEU. My instructions that comes out at pretty much 50/50. Certainly not the 80 or 75 per cent that was being bandied around before. That is the evidence of the applicant. Our evidence is that the clear majority was ex-MEU. And that - and even the evidence of the applicant is quite consistent with that, it is not just some employees, it is at least half on the applicant's evidence.
PN1499
Therefore we say that, as at December 1996, at least half of the employees were covered by a minimum rates award. And as can be seen - and the evidence also shows that employees in the northern and western regions of Melbourne prior to 1994 worked under local government awards at their MEUs. The MEUs covered the majority of the customers in the northern and western regions of Melbourne and that business was then transferred to Solaris. And that is what the Solaris pamphlet states, it says it was formed from five MEUs and one division of the SEC.
PN1500
And the award was significant and it is clearly referred to in all the statutory declarations from 1994 all the way through to 2002 setting out that it is bound by the local government awards. Now, if it is was insignificant those awards might well have dropped off but they haven't and they have continued all the way through.
PN1501
THE SENIOR DEPUTY PRESIDENT: As well as the SECV award?
PN1502
MR BORENSTEIN: Correct.
PN1503
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1504
MR BORENSTEIN: And we say, as at December 1996, local government awards were the predominant award because they applied to the majority or a substantial amount of employees. And it is also true that the local government award is able to apply to all the employees subject to the proposed agreement, has the scope to cover them all, whereas the classifications or the application of the EEEE Award doesn't apply to the upper management whereas the local government awards are able to do that.
PN1505
Therefore we say immediately prior to 31 December 1996 the predominant award for employees in the business of electricity distribution in the northern and western regions of Melbourne had their wages and conditions determined by a minimum rates award. And the Commission can look at the exhibits to Mr Georgiou's affidavit to see the acceptance of the transmission of the local government award and - I am not sure if your Honour has read it but the bans clause application before Commissioner Blair, where he actually inserts a bans clause in the local government award in respect of an application by Solaris.
PN1506
So that would suggest that the award substantially applied to at least half if not the majority of employees at Solaris. Now, the next step is in respect of section 170MW(7)(b) and there - were the wages and conditions customarily determined by a paid rates award prior to 31 December 1996? And we again say that customarily the wages and conditions of this kind of employees were determined by a minimum rates award and not a paid rates award. And we rely on the evidence of both Mr Georgiou and even the evidence of the applicant.
PN1507
And the Commission would note that the - and I don't think there is any issue that the local government awards didn't carry over but the employees of the ex-MEUs were told that their existing terms and conditions would carry over from the MEUs to Solaris. They were told that in writing and that is exhibited to Mr Georgiou's affidavit and has not been contradicted. So not only did it transfer by operation of the law but the employees were actually told that they would be keeping their existing terms and conditions which was the local government awards.
PN1508
And that is something to take into account when saying, well, I am going to terminate this bargaining period for employees who have historically been covered by a minimum rates award and be told that that award would follow them. And we would say that that goes against the intention of MW(7) to protect employees who have had the Commission set their maximum rates rather than having to bargain for themselves and that is just not the case in respect of the employees of AGL.
PN1509
Now, in addition to that argument we also strongly submit that in order to satisfy subsection 7(b) the Commission must examine whether prior to 31 December 1996 it was customary for a paid rates award to determine the wages and conditions of the kind of employees or whether a certified agreement customarily applied over the paid rates award in which case subsection 7 could not be invoked. Now, I will take you to - and the reason I argue that point is because in subsection 7(a) there is a proviso that - it says:
PN1510
Would the wages and conditions have been determined by a paid rates award or would have been so determined if a certified agreement had not prevailed over the award.
PN1511
But then in paragraph (b) that proviso is not there. And we think the lack of that inclusion of the proviso supports the intention of this provision. It supports the view that, where customarily employees prior to 1996 had been able to negotiate a certified agreement above the award that applies to them whether it be paid rates or not, that they don't need the protection given by MW(7). That is because these employees have been able to negotiate and bargain terms in excess of the paid rates award customarily and therefore don't need the protection.
PN1512
And it makes complete sense that the provision is there to protect employees who haven't been able - have relied on the Commission to set their maximum rates rather than being able to do it themselves. And we say that is the way the Commission should interpret subsection (b) which otherwise is quite superfluous in that it overlaps almost completely with subsection (a).
PN1513
THE SENIOR DEPUTY PRESIDENT: Well, they are conjunctive, aren't they? I mean - - -
PN1514
MR BORENSTEIN: They are conjunctive, that is right.
PN1515
THE SENIOR DEPUTY PRESIDENT: I understood it to mean first of all (a) says if they were paid - if they were covered by a paid rates award and (b) to be saying if they were covered - if they customarily determined by an award, a State or a Federal award as a paid rates award. In other words, you had to fulfil both and first of all having a paid rates award just prior to 31 December 1996 and being customarily paid by way or under a paid rates award.
PN1516
MR BORENSTEIN: That is correct but it doesn't add the proviso, or would have been so determined by a paid rates award if not ousted by a certified agreement. And that proviso is not contained in subsection (b). And we submit that is logical because the whole object of this Act is to allow free bargaining for employees at an enterprise level
PN1517
THE SENIOR DEPUTY PRESIDENT: But - I am sorry, I seem to be misunderstanding what you are saying.
PN1518
MR BORENSTEIN: Yes, continue.
PN1519
THE SENIOR DEPUTY PRESIDENT: Are you saying that if, just prior to 31 December 1996, the employees were covered by a certified agreement and notwithstanding that they might have customarily been covered by a paid rates award they - subsection - well, (7) doesn't apply?
PN1520
MR BORENSTEIN: Yes, if the employees, prior - not immediately prior but prior to 1996 were customarily - had their terms and conditions customarily set by a certified agreement which prevailed over a paid rates award then subsection 7(b) doesn't apply because logically it is inconsistent to have a certified agreement which applies over a paid rates award and the statue is saying well, if you are able to reach a certified agreement which does apply over it, well, we don't need to give you this protection because you are all used to - you are all in the - you are able to negotiate agreement by yourself.
PN1521
THE SENIOR DEPUTY PRESIDENT: Well, perhaps when I go back to my chambers and read it I might see that. I don't see it at the moment but - - -
PN1522
MR BORENSTEIN: Well, I think the main point I make there is that there is a proviso in subsection (a) and there is not that same proviso in subsection (b).
PN1523
THE SENIOR DEPUTY PRESIDENT: Yes, I understand the point, yes.
PN1524
MR BORENSTEIN: Yes. And then you will see in my submissions that from - you will see that since - both in - from 1994 and '95 there was the Solaris enterprise agreements which operated above the awards. Not only that, in the 1993 - there was an Electricity Services Victoria enterprise agreement 1993 which - where the SECV employees came through, there was the SECV then a break up company called the SEC and then - - -
PN1525
THE SENIOR DEPUTY PRESIDENT: The ESV?
PN1526
MR BORENSTEIN: Sorry, the ESV, sorry.
PN1527
THE SENIOR DEPUTY PRESIDENT: ESV, sorry, yes.
PN1528
MR BORENSTEIN: And that - even though that has underpinning it the EEEE Award they had a certified agreement there as well which applied above it. And in clause 6 of that agreement it states that it prevails over the relevant SECV award. And in that agreement the wage rates and above - and other above award conditions are set out. So we submit that that - these kind of employees whether they came from SECV or the MEUs did not have their wages and conditions customarily determined by a paid rates award but rather certified agreements which operated above the awards.
PN1529
In respect of determining how long "customary" means we refer to - I think I have handed up print S6320, the Caltex decision.
PN1530
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1531
MR BORENSTEIN: And I refer to paragraph 24 where it says:
PN1532
I am not persuaded that 18 months should not, in the context of section 170MW(7), be accepted as a long period in considering what "customarily" means.
PN1533
So in that situation we say well, it has been customary for three years prior to 31 December 1996 for these employees to have their terms and conditions covered by a certified agreement and therefore satisfies the definition of "customarily".
[4.05pm]
PN1534
You will see my short submissions regarding paragraph 39 for the reasonable prospect of reaching agreement.
PN1535
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1536
MR BORENSTEIN: We say that there is a reasonable prospect of reaching agreement and the parties should be allowed to continue to negotiate and we submit that should this application be dismissed that there is a likelihood of agreement being reached very quickly. In respect of discretion we say that the Commission should take into account the objects of the Act and be loath to interfere in terminating a bargaining period. Now, this should be even more prominent in the Commission's mind by reason of the fact that even on the applicant's evidence half of the employees employed by Solaris are covered by a minimum rates award.
PN1537
In a situation where the objects of the Act encourage and promote negotiation at the enterprise level without interference, we say the fact that half of these employees are covered by minimum rates awards is enough to stop the Commission making the orders. I have no further submissions.
PN1538
THE SENIOR DEPUTY PRESIDENT: Thank you very much, Mr Borenstein. Mr Georgiou.
PN1539
MR GEORGIOU: What is the power industry, your Honour? The power industry involved coal mining, thermal and steel based load generation, transmission, dams and hydro generation, distribution, gas. Under the old SECV there was a construction section. There were plumbers, there were carpenters, there were a number of classifications and the - they were all classified as power industry workers, but it is a very, very broad definition. To deal with the propaganda sheets, as Mr Borenstein referred to them, I am as guilty as everyone else cutting and pasting and paraphrasing and it is easier for me, who is not very computer literate, to simply take headings from other newsletters and transpose them, and it is also easier to use those types of descriptions to summons along members, so I - - -
PN1540
THE SENIOR DEPUTY PRESIDENT: How is it then that the APESMA is pursuing the same claims against Agility as it is pursuing against the other power companies - power distribution companies?
PN1541
MR GEORGIOU: They have similar origins because employees come from similar places and if you have a look at my vehicle industry claims, your Honour, you will find they are about the same as well. It is called cutting and pasting and pursuing the same agenda. The agenda doesn't vary across too many of the sectors I look after. I am - there is a presumption in all of this that the EEEE is a paid rates award. In the paid rates awards that I have dealt with in the vehicle industry and the airline industry and in public transport, when the award is made the Commission member making the award inserts a clause to the effect this award is a paid rates award. That was not done by Commissioner Johnson.
PN1542
THE SENIOR DEPUTY PRESIDENT: I think isn't there a decision that says the absence of those words is not determinative?
PN1543
MR GEORGIOU: There is, in the access in part. But in this case there is a bit more than simply the words not being there. A paid rates award by its very nature - and this is a question of law, not of speculation by either sides of the Bench - a paid rates award must have the wages and conditions and, in particular, the wage rates of the employees specified and the employer may pay no more or less than the wage rates stipulated for that classification. The reason that the EEEE Award in our submission fails that, is that there are no classifications in the award. It was one of the questions I tried to put to Mr Deprinse, which was a bit foolish on my part because he wouldn't have known the answers.
PN1544
But there are no classifications other than two in the award. One is for the graduate engineer and one is for the experienced engineer. Indeed, when we were trying to convert the award last year - two years ago, sorry, to set proper fixed minimum rates there was no prospect of the parties reaching agreement on that because there is no definition of what an electrical trades person is, what a fitter is, what a communications tester is, so that a person applying - or an employer applying this award cannot with any certainty or accuracy predict the classification and the pay level for any employees other than graduate engineers and experienced engineers.
PN1545
And, indeed, the award was made prior to the 1989 structural efficiency principle where minimum rates were applied. There are no minimum rates or relativities - one classification relative to the other in this award. So it isn't even possible by pinpointing the graduate engineer rate, which was 135 per cent of the base trade rate, to work backwards or forwards and the decisions of the Commission at the time of the making of the - sorry, at the time of the structural efficiency principle which applied to every award of this Commission in 1989 - and I do have the print number somewhere - stated that:
PN1546
We are not prepared to allow the restructure of some awards without relationships ...(reads)... existed inequitable relationships amongst various classifications of employees.
PN1547
And then it goes on to deal with the issue of relativities and in a paid rates award everything was relative to the Metal Industry Award, your Honour, at that time. Every award made subsequent to 1989 had to apply the structural efficiency principle. For paid rates awards the award had to stipulate the rates of pay for each classification of employee. The EEEE Award didn't do that and, indeed, in Commissioner Lewin's decision concerning the proper fixed minimum rates in PR921033 he does talk about the difficulties of the parties in being able to establish the minimum fixed rate and he did allow for my organisation to put further evidence, if necessary, about the rates to apply for professional engineers. So how can you have a paid rates award that can't determine the rates of pay for anything other than two classifications?
PN1548
THE SENIOR DEPUTY PRESIDENT: But another member of the Commission has already said that it is a paid rates award.
PN1549
MR GEORGIOU: I don't think those submissions were put and the difficulties arose when the minimum rates conversion came into play, which was in 2002, and the unions and the companies, including this one, had enormous difficulty in applying the principles. The fact that people have erred in the past doesn't mean we should err in this matter. One of the implications of the employer's - - -
PN1550
THE SENIOR DEPUTY PRESIDENT: Is the CFMEU a party to that award?
PN1551
MR GEORGIOU: No, they have their own separate award. They have the FEDFA Award. In 1998 we had to simplify both the EEEE Award and the FEDFA Award. They have always been a world unto themselves those boys down the Valley. No, they have their own award. The building industry unions have their own award. The metal industry unions have their own award. When I was at the vehicle builders we had our own award. So there were a number of awards. Indeed, just talking about the Metal Industry Award and which industry, there are a number of employees of the former SECV who were out-sourced or went - their work went to other companies like Siemens, ABB, Transfield, Silcar, etcetera.
PN1552
They were not part of the Victorian power industry, they came under the metal industry and they were classified by this Commission and by the employers as being part of the metal industry. One of the effects that this application will have is to do something which section 170 - whatever it is, the subdivisions that they rely on, MW(7) or whatever it is, doesn't allow them to do. The ASU, the ETU and ourselves have bargaining periods and notices with respect to the various AGL Agility companies. They apply equally to those. Even if I lose on the question of the paid rates award those bargaining period notices apply to both the employees from the former SECV and those from local government.
PN1553
The effect of this application would be to impose a section of the Act on those employees from the MEUs, who are governed by a minimum rates award and then stop them from being able to initiate a bargaining period and take whatever industrial action may be protected under the Act. The effect of this application is to impose a paid rates section of the Act on a large number, and whether it is 50 per cent or 20 per cent my submission is that you can't use that section to cancel the bargaining period of someone who is clearly covered, not by a paid rates award - if I can put it that way rather than saying by a minimum rates award.
PN1554
The issue of the - the quotes from Senator Murray that were in the Yallourn case related to public servants who were paid under paid rates awards at - sorry, not a large number, but a number of awards applying to state instrumentalities were all minimum rates awards. In the water industry they were minimum rates awards. In the public transport industry there were some minimum rates awards. In VicRoads some of them were minimum rates awards and the SECV had a number of minimum rates awards.
PN1555
Mr Parry drew your attention to the 1995 agreement which mentions the Local Government Award. It is in attachment 5 of my affidavit. He says that the Local Government Award is simply used - sorry, mentioned in the parent awards. He didn't draw to your attention clause 32 which talks about employees who work a 35 hour week and then those who work a 37-1/2 hour week, and in the schedule at the back with the pay rates there are two sets of pay rates. One set pertains to employees under a 37-1/2 week and another set for those worked a 35 hour week. I can tell the Commission for free that no-one in the SECV worked a 35 hour week, except some of the managers who shot through earlier, but officially they didn't.
PN1556
Then he referred to - under the casuals clause there was a reference to the SECV Award and on sick leave entitlements there was a reference to the SECV Award. The reason is that they were more generous provisions than local government, why wouldn't you take them? The issue of the likely prospect of the parties reaching agreement, the employer in this case replicates the submissions made before Commissioner Mansfield and a representative from Powercor, Citipower and SPI all swore black and blue that there was no likelihood of us reaching agreement with those companies and they sat in the dock and swore that and under cross-examination from Mr Borenstein's father reinforced that.
PN1557
It only took us two meetings to reach agreement with Powercor, Citipower and SPI and we are - I wouldn't say we are close because TXU have got other issues to do with their own in the way. One of the other issues of the type of industry, your Honour, you made a decision - and I haven't got it with me, it only triggered it off when Mr Borenstein was saying something and you asked him questions about the type of industry. My organisation made an application before you to have an organisation called UECOMM, which was a subset of United Energy, roped into the EEEE Award and you said they were not in the same industry and the industry was in that case a subset of the former power industry.
PN1558
THE SENIOR DEPUTY PRESIDENT: Rolling out cable, wasn't it?
PN1559
MR GEORGIOU: Well, one would argue that every company in this business - and you will find in the - - -
PN1560
THE SENIOR DEPUTY PRESIDENT: Their business was confined to rolling out cable, wasn't it?
PN1561
MR GEORGIOU: No.
PN1562
THE SENIOR DEPUTY PRESIDENT: Wasn't it?
PN1563
MR GEORGIOU: No, but anyway they were a subset - I am not going to go through that again. I got done once; I am not going to get done twice by it, so I will - but it was the same issue of what is the success or what are the businesses of the successors of either the SECV or the MEUs and in this case it is unequivocal that the work being done was the work being done by the MEUs. I haven't got anything else to add, your Honour. Hang on.
PN1564
MR BORENSTEIN: Your Honour, can I just - two matters which I forgot to address which were made by - raised by Mr Parry. The cases he handed up regarding award coverage, we submit - I don't think these help the Commission much. These are cases dealing with termination of employment and whether an employee is bound by an award or not. These are jurisdictional questions for terminations of employment and there is a principal purpose test about whether someone does come within award or not, but how that assists in splitting up the local government awards and the SECV Award and the EEEE Award, I don't think it assists the Commission in doing that.
PN1565
And in respect of the raising of the section 118A application we submit that it doesn't assist the case of the applicants. We submit that this is - it is an application made in respect of a number of different companies which all have, we say, different interests and we say the submissions put in that matter cannot be used in this current matter where it requires the Commission to examine the actual kind of employees and define them for the purpose of MW(7) where different considerations and different objects of the Act apply. We say that this is a much more general application than the current application before you and to link this to defining the kind of employees is just not appropriate in our submission.
PN1566
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Henderson.
PN1567
MR HENDERSON: Yes, thank you, your Honour. I wonder if the ASU outline of submissions might be marked.
PN1568
THE SENIOR DEPUTY PRESIDENT: Yes. Do I have that. I thought I had those filed earlier - yes, I do.
PN1569
PN1570
MR HENDERSON: Yes, thank your Honour. The ASU adopts the submissions made by both Mr Borenstein and Mr Georgiou and we simply rely on the very brief outline that we have sent into the Commission. We say that these aren't negotiations which in any way could be described as stalled and that the applicant's case doesn't give enough credit to the way in which the negotiations have developed and, in particular, doesn't give enough credit to the recent concession by the ASU and APESMA in relation to the hours of work claim, which can only be characterised as significant in the overall context of the negotiations, and to the fact that my friends referred to earlier, that the other companies which had earlier claimed a complete lack of prospect of reaching agreement, have subsequently reached agreement in relation to the same matters.
PN1571
But more particularly, in relation to the AGL group of companies the fact that the unions have so recently changed their negotiating position in a way which one could only consider brought them closer to reaching an agreement, has to be given great weight and in our submission the Commission should give it that weight in exercising its discretion and refuse the application. If the Commission pleases. Might I also say while I am on my feet without any disrespect to Mr Parry, who may well want to reply to some of the very interesting things which we have heard, may I be excused from further attendance?
PN1572
THE SENIOR DEPUTY PRESIDENT: Yes, you have no objection, Mr Parry?
PN1573
MR PARRY: No, it is a matter for Mr Henderson.
PN1574
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Parry, did you want any reply?
PN1575
MR PARRY: I will be brief, your Honour. The submissions about the industry and the kind of employees - I have taken you to the CFMEU decision and I think I had only really taken the Commission up to say paragraph 56, but the Full Court went on in paragraph 56 and dealt with the power industry, the kind of employees and they then set out the speech of Senator Murray and it - I think - as it said on page 22 of 27 at the end of paragraph 58 - the start of paragraph 58:
PN1576
The reference in APRA should be explained. In that case it was said the expression "kind of employers" extends beyond the particular language to whom the bargaining notice relates.
PN1577
And they then refer to the speech of Senator Murray and they go on and they say:
PN1578
Nothing in Senator Murray's speech nor in APRA indicates that in a particular case ...(reads)... would play a part in the evolution.
PN1579
So when it is submitted by the unions today that somehow it is - there should be a nexus between the actual employees to be the subject of the proposed - this is paragraph 16 of the proposed agreement and the kind of employees. We submit that that is simply not necessarily the position. Indeed, the various authorities taken - that you have been taken to show that the Commission looks at the industrial relations context, looks at the history and makes an assessment in all the circumstances. I don't think I can take the matter a lot more further. We have submitted as to why we say the power industry in Victoria has a particular history.
PN1580
The sectors that we are dealing with here have grown out of that history and it is appropriate that history and context be taken into account in making an assessment of the industry. Now, your Honour, Ms Williams gave evidence. She gave evidence about the numbers. Mr Georgiou said he didn't know the numbers, but he had a view. Really, the evidence of Ms Williams should be preferred. She is the one that is on the spot, she gave details of the enquiries she has made. Now, I don't - we can all look at the numbers and make them add up to different - make them add up differently.
PN1581
They have been massaged in a certain way by Mr Borenstein. Now, all we say is the Commission will, no doubt, look at the notes that have been taken. We simply say that there is at the very least a majority of employees that were formerly from the SECV coverage, but as we have submitted already it is not the individual award - employee that the award applies to, so that is an assessment that has to be made in all the circumstances. Finally, it is this argument at paragraph 30 that somehow there is an extra requirement put in subsection 7(b) that there needs to be - that if there is a certified agreement in existence somehow section - subsection (b) is not satisfied.
PN1582
Now, we cay say this. Firstly, there is no authority for this at all and there is no authority for that proposition from any of the vast number of cases on subsection (b) and this is in a context where there, of course, have been certified agreements in place since 1992 or 1993 regulating employment generally. So, firstly, we say it is astounding that such a proposition could be advanced seriously and ambitiously, we say, without any authority to support it. Secondly, we say it would - that construction, restraining as it does the words of the section, would significantly undermine - it would significantly undermine subsection (a).
PN1583
It would really denude subsection (a) of much of its meaning and we say that wouldn't be consistent with the statutory scheme for the operation of subsection MW(7). Can we say thirdly that that is not what the section would mean in any event. Subsection (b), we all have been talking about December 1996 because subsection (a) starts with the term "immediately before the commencement of this section". Of course, subsection (b) doesn't focus on "immediately before the commencement of this section". It commences - it has halfway through "before the commencement of this section".
PN1584
Obviously, it is looking over a long period. It is looking over customary regulation and in a way that is exactly what Senator Murray
was referring to when he pushed this forward. He was - the Commissioner - without going through a full history of all this, the
Commission will recall that in 1993 or 1992 Victorian awards were abolished. There was then a debate about the terms and conditions
that applied to Victorian public sector workers and there was movement on to individual employment agreements.
[4.30pm]
PN1585
And Senator Murray's particular concern was to make sure that people whose employment had been regulated at some stage in the past were protected, in effect, by this - or given an out, as it were. And as he said in paragraph 58 of the Federal Court decision, where his extract is set out, and I quote:
PN1586
Paragraph (b) adds the further requirement that where that kind of employees were customarily covered by a State or Federal award they were determined by paid rates awards. Again, this clearly picks up the situation of Victorian workers as they were covered by a paid rates award when they had award coverage.
PN1587
But it would not pick up the situation where the former paid rates award was converted to a minimum rates award as has happened, for example, in the building industry. Now, the Victorian employees up until 1992 were regulated by State awards that were paid rates awards. They were abolished. So clearly this section is not looking at a particular point in time but is looking at customary coverage in the past. And we say, when we look at this class of employees, this class of employees or this kind of employees, that are working, we say, in the power industry in Victoria, they were so customarily regulated. And that is our submission with regard to that matter.
PN1588
THE SENIOR DEPUTY PRESIDENT: I must say that was my construction of paragraph (b) that given the novelty of Mr Borenstein's submission I wasn't so sure if I was right about that. I just thought I would question it, that is all.
PN1589
MR PARRY: I have nothing further, your Honour.
PN1590
THE SENIOR DEPUTY PRESIDENT: Yes, thanks, Mr Parry. I will reserve my decision. I will publish the decision tomorrow afternoon, at 4 o'clock. Thank you.
ADJOURNED INDEFINITELY [4.32pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EDWIN WILLY DEPRINSE, SWORN PN206
EXAMINATION-IN-CHIEF BY MR PARRY PN206
EXHIBIT #A1 AFFIDAVIT OF EDWIN WILLY DEPRINSE PN215
EXHIBIT #A2 SUMMARY OF THE HISTORY OF AWARD COVERAGE IN THE AREAS FOR WHICH AGILITY IS RESPONSIBLE PN241
CROSS-EXAMINATION BY MR GEORGIOU PN248
CROSS-EXAMINATION BY MR BORENSTEIN PN577
WITNESS WITHDREW PN659
PAUL EDWARDS, SWORN PN660
EXAMINATION-IN-CHIEF BY MR PARRY PN660
EXHIBIT #A3 AFFIDAVIT OF PAUL EDWARDS PN670
CROSS-EXAMINATION BY MR GEORGIOU PN672
RE-EXAMINATION BY MR PARRY PN817
FURTHER CROSS-EXAMINATION BY MR GEORGIOU PN830
WITNESS WITHDREW PN836
MARK GEORGIOU, AFFIRMED PN871
EXAMINATION-IN-CHIEF BY MR BORENSTEIN PN871
EXHIBIT #R1 AFFIDAVIT OF MARK GEORGIOU AND ATTACHED EXHIBITS PN878
CROSS-EXAMINATION BY MR PARRY PN894
EXHIBIT #A4 APESMA ASU NEWSLETTER DATED 28/1/2004 PN995
EXHIBIT #A5 ETU APESMA ASU NEWSLETTER DATED 4/2/2004 PN1004
RE-EXAMINATION BY MR BORENSTEIN PN1007
WITNESS WITHDREW PN1013
WES HAYES, SWORN PN1015
EXAMINATION-IN-CHIEF BY MR BORENSTEIN PN1015
EXHIBIT #R2 STATEMENT OF MR WES HAYES PN1046
CROSS-EXAMINATION BY MR PARRY PN1049
RE-EXAMINATION BY MR BORENSTEIN PN1117
WITNESS WITHDREW PN1122
EXHIBIT #R3 AFFIDAVIT OF MICHAEL RIZZO PN1127
JANETTE LORRAINE WILLIAMS, AFFIRMED PN1141
EXAMINATION-IN-CHIEF BY MR O'GRADY PN1141
CROSS-EXAMINATION BY MR BORENSTEIN PN1232
RE-EXAMINATION BY MR O'GRADY PN1306
WITNESS WITHDREW PN1326
EXHIBIT #A6 SUBMISSIONS OF MR PARRY PN1336
EXHIBIT #A7 APPLICABLE AWARDS AND AGREEMENTS AT YALLOURN ENERGY IMMEDIATELY BEFORE 31 DECEMBER 1996 PN1364
EXHIBIT #A8 EXTRACT OF LOGAN V OTIS ELEVATOR COMPANY PTY LTD PN1374
EXHIBIT #R4 WRITTEN SUBMISSION OF MR BORENSTEIN PN1410
EXHIBIT #ASU1 ASU OUTLINE OF SUBMISSIONS PN1570
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