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Australian Industrial Relations Commission Transcripts |
AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825
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 8797
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER MANSFIELD
C2004/5955
APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION
Application under section 127(2) of the Act
by Powercor Australia Ltd for an order to
stop or prevent industrial action on the
BassLink project
MELBOURNE
9.39 AM, WEDNESDAY, 20 OCTOBER 2004
Continued from 19.10.04
PN454
THE COMMISSIONER: Mr Minster, you have been sworn and so Mr O'Grady.
PN455
PN456
MR O'GRADY: Mr Minster, have you prepared a statement for the purposes of these proceedings?---I have.
PN457
Could you have a look at this document for me please? Is that a copy of the statement that you prepared?---That is, yes.
PN458
And to the best of your knowledge is that statement true and correct?---It is.
PN459
PN460
MR O'GRADY: P5 I think it is, Commissioner. If I could just ask you a number of questions about that statement, Mr Minster. Firstly just to put it on the record, does Powercor have a current enterprise agreement with the ETU?---We have an enterprise agreement that has reached its nominal expiry date.
PN461
Yes?---But under the Act it is still current until it is replaced by another agreement.
PN462
All right. Well in your statement you describe in paragraph 6 a meeting that you had with the various unions that were involved in the BassLink project, and you say the unions included the respondent, so they included the ETU. In the course of that meeting did anybody from the ETU say anything to you about the need for there to be a separate EB, or enterprise agreement, between Powercor and the ETU?---No. At that meeting Mr Mooney represented the ETU.
**** XN MR O'GRADY
PN463
Yes?---And we put to that meeting that Powercor normally didn't sign on to the site agreement because it contained provisions in it that weren't necessary for us. And we were advised then that we would be required to sign up to a memorandum of understanding which would need to be signed by ourselves, Powercor, and the ETU at state secretary level.
PN464
Well was there any suggestion in the course of that meeting that that memorandum of understanding would have to be certified?---No, there wasn't.
PN465
Now you mentioned a site agreement. Could the witness please be shown exhibit P4? WE have a spare copy I think, Commissioner, I don't want to take your copy. Now this is a document headed Tas-Vic Interconnected Consortium BassLink Project Victorian Enterprise Bargaining "Model" Agreement 2003-2006. Is this the site agreement that you were referring to?---That was the site agreement that was shown to us at that meeting as being the model agreement.
PN466
Yes, all right. And why do you say that there are provisions in this agreement that don't apply or don't sensibly apply to Powercor?---Well in this agreement, and I am not sure where the clauses are, but it provides for payment of CBUS, Incolink, Coinvest, that is just the long service leave, and income protection, all of which Powercor carries itself and wouldn't pay separately into those funds.
PN467
All right. Okay. Now as I understand it you say in paragraph 8 of your statement that on 16 September Mr Mooney arranged for you to receive a draft copy of the memorandum of understanding between the applicant and respondent. Is that the case?---Yes, that was sent to me by e-mail.
PN468
All right. And that document is one of the documents that is included in P1, are you aware of that? Perhaps if I can show you that to clarify that, perhaps the draft too?---Yes, that was the document that was sent to me on the 16th.
**** XN MR O'GRADY
PN469
All right. Okay. And from what you have said already, was it the intention of this document to take out of this model bargaining agreement the relevant bits and plonk them into a memorandum of understanding to be signed off by Powercor and the ETU?---That was basically it. There were probably a few other things that were taken out of the model agreement as well but that didn't concern us. The model agreement that we received with a couple of minor changes was acceptable to us.
PN470
All right. Okay. And you recount in your statement how you sent back some details and then Mr Mooney sends you another version and incorporated your changes. Was that the case?---The changes that we made were fairly minor and Mr Mooney accepted those. And I also provided him details of wages and allowances that were paid in Powercor which when he sent me back the second draft, I think this one is called draft 2 but the second draft was called draft 3, that had those details incorporated into it.
PN471
Yes. Perhaps just for the purpose of completeness can I get you just to identify this document, and this is once again one of the documents included in the exhibit P1, Commissioner. Is that a copy of the document that Mr Mooney forwarded to you with the changes accepted and incorporated?---That is the document, yes.
PN472
And is Powercor prepared to sign that agreement?---Yes, we have indicated to Mr Mooney that that is acceptable to us and we are prepared to sign onto it.
PN473
Okay. So Mr Mooney on behalf of the union have offered or asked you to sign that agreement and you are prepared to accept that agreement and sign it?---Not exactly. What Mr Mooney said is that the ETU probably weren't prepared to sign it, even though we were, but we should continue to finalise the agreement in case the situation changed.
PN474
All right. And did he indicate why the ETU might not be prepared to sign it?---Well because we are having difficulties, to say the least, with our enterprise bargaining negotiations for our own agreement.
**** XN MR O'GRADY
PN475
Yes. Now just so we can clarify this issue because there was some confusion I thought yesterday. When you are talking about your enterprise bargaining negotiations are they BassLink specific or are they the general Powercor enterprise bargaining negotiations?---No, that is our general industry enterprise bargaining negotiations.
PN476
Yes. Okay, I understand. Now in paragraph 14 of your statement you say that you tried to contact Mr Mooney and left messages for him on several occasions. On how many occasions would you have rung Mr Mooney in the past - - -?---It was three or four, at least three but probably four. And when I rang I got the ETU memo service and left a message for Mr Mooney to give me a call but I wasn't successful in being able to contact him.
PN477
All right. Okay.
PN478
THE COMMISSIONER: When were these calls made, Mr Minster?---Well I made every couple of days following - well I guess late September, early October, Commissioner.
PN479
And so you rang Mr Mooney, left messages, didn't get any response?---That is right, rang his mobile.
PN480
MR O'GRADY: And then in paragraph 15 you say that you met with Mr Arnett, the state organiser of the respondent. Now has Mr Arnett been the person who has conducting these general EB negotiations on behalf of the union with Powercor?---That is right.
PN481
All right. And you discussed with him Powercor's changed position on the enterprise agreement negotiations. Now what was that change in position?---Well there was a number of changes. First of all right through the negotiations we have been fairly hard and fast in our opposition to a 36 hour week.
**** XN MR O'GRADY
PN482
Yes?---And at this fairly informal meeting with Mr Arnett we - - -
PN483
THE COMMISSIONER: Not an off the record meeting I hope, Mr Minster, was it?---I have learnt the hard way that nothing much is off the record, Commissioner.
PN484
Yes, good?---It was an informal meeting and we did advise - I did advise Mr Arnett that we had changed our approach on the 36 hour week. And that we made a number of offers on that occasions, including the 36 hour week.
PN485
MR O'GRADY: Now and did you raise at all the BassLink project with respect to Mr - in your conversation with Mr Arnett?---I said that we wanted some quid pro quo if we were going to make this offer, and that was that we wanted some slack on the BassLink project. Mr Arnett told me that that wasn't really his area and that he would have to talk to Peter Mooney and to Dean Mighell about it.
PN486
And when you say slack on the BassLink project what were you referring to?---Well I wanted him to cut us some slack so that we could get the memorandum of understanding signed and get access to the site.
PN487
Okay. And when you say get access to the site, why do you think it is necessary for you to have a memorandum of understanding before you can get onto the site?---Well all other contractors need the BassLink model agreement and, you know, it is part of the process that we would have to have some sort of agreement on top of our industry EBA to get access to the site.
PN488
Right. Okay. And what is the impediment to you having that agreement at this point in time?---Well although we have agreed to it from Powercor's perspective we can't get it signed.
**** XN MR O'GRADY
PN489
Right. Okay. Has at any stage the union indicated to you what would happen if you were to attempt to come onto site without a memorandum of understanding signed?---No, they haven't indicated directly.
PN490
Why would they see that it is important for you to have a memorandum of understanding?---Well for industrial harmony on the site.
PN491
Does that mean that there might be industrial disputation where you not have such an agreement?---Well we took it to mean that unless we had a memorandum of understanding signed up that we wouldn't get access to the site anyway.
PN492
Right. Now you had a further discussion with Mr Arnett, as I understand it, on 11 October. And what was said in that discussion?---Well not a lot. I asked Mr Arnett what the position was with the Loy Yang part of it because we were leading up to a meeting on our own enterprise agreement. And Mr Arnett basically just told me that there was no resolution and that he would have to - he hadn't been able to contact Dean at that stage, he said, and he would have to call Dean and clear it with him.
PN493
All right. Now you also had a discussion with Mr Arnett on 13 October. And did you make a note of that discussion?---I did.
PN494
Yes. Could the witness please be shown a copy of exhibit P1? Now on the bottom third of the page there is a note:
PN495
13/10 12.15 pm Greg Arnett.
PN496
Is that your writing?---It is.
**** XN MR O'GRADY
PN497
And is this the note you formed?---That is right.
PN498
And how long after the telephone conversation did you make this note?---Straight away after the conversation.
PN499
Okay. And in it you say:
PN500
Will not be given a BassLink agreement or MOU to work on BassLink project until we finalise an EBA in our own industry.
PN501
And then it goes on:
PN502
After we get an EBA we would need to discuss BassLink with Dean Mighell before the MOU would be signed.
PN503
Now is that an accurate record of what you were told by Mr Arnett in the course of this conversation?---That is an accurate record.
PN504
Now above that note there is another note relating to a conversation on 12 October:
PN505
Meeting BassLink at 11.05. Greg Arnett will not be signing any site agreement until the ETU problems with Siemens are sorted out, problems go back to the EBA and exclusions.
PN506
Do you see that?---That is just my record of another brief conversation that I had with Mr Arnett on the 12th.
**** XN MR O'GRADY
PN507
All right. Okay. Have you made inquiries or had inquiries made from Siemens to see whether they have any EBA problems with the ETU?---I have made that inquiry, yes.
PN508
Yes. And could you have a look at exhibit P3 please? Now this is an e-mail from Mr Turner to a Mr Paul Burke, and then there is a response from a Matthew Margach in which Mr Margach indicates that he had confirmed with Mr Mighell that Siemens and the ETU are not in dispute, rather - - -
PN509
MR MIGHELL: Commissioner, I am very concerned about this evidence that was led yesterday by the applicant. It seems to be relied on again today about an e-mail from a person I don't know, who I have never had a conversation with. And I tabled it yesterday, they seem to be relying on it today, and if they are going to rely on that evidence they should be prepared to call Mr Margach to the Commission, because I don't even know who he is. So I think if they are going to proceed with this then - and rely on this person who I don't know, who I don't even believe I have dealt with - then I think either they withdraw that evidence completely or they call him.
PN510
THE COMMISSIONER: The e-mail, Mr Mighell and Mr O'Grady, says that:
PN511
We confirmed with D Mighell last night that Siemens and the ETU are not in dispute, rather the ETU is running a strategic agenda against Powercor in respect of the power industry matters. Please confer with Ken Minster...
PN512
Etcetera. Now it doesn't say that Mr Margach spoke to you, Mr Mighell, it says we. It may be somebody else - Mr Margach is from Siemens I expect - it may have been somebody else. He is not saying in this e-mail, Mr Mighell - I take your point that this is simply an e-mail that says Siemens confirmed with you certain things. But whether there was any direct contact with Mr Mighell, what Mr Mighell said in that direct contact, this is hardly evidence of it, it is simply an e-mail that says, "We did something."
**** XN MR O'GRADY
PN513
MR O'GRADY: Well can I respond on two levels, Commissioner. In my submission it is evidence, albeit hearsay evidence, of what Mr Mighell had said, and it is a question of weight for you, Commissioner, to assess it.
PN514
THE COMMISSIONER: It is a weight issue, absolutely.
PN515
MR O'GRADY: Indeed, I accept that. But of course it is uncontested evidence. Mr Mighell can stand up from the bar table again and again and again and say that he doesn't know people, or say that this didn't happen, that is not evidence. Unless and until he is prepared to get into the witness box and take an oath, what he says from the bar table has no weight whatsoever. So at the moment the only evidence on this issue is what is contained in this e-mail. The other way in which I would respond to the issue, Commissioner, is this.
PN516
We are here concerned, in my submission, with a matter of discretion, this issue goes to the discretionary considerations of section 127. And whether or not Mr Mighell actually said these things or not is on one level by the by. We have acted on the basis that this is what is stopping us from getting onto the site. And at this point in time we have had no disavow from the ETU that we can go onto the site.
PN517
THE COMMISSIONER: And this is one of a number of pieces of evidence you put forward, Mr O'Grady, which suggests that there is a connection between the refusal of the ETU to sign the MOU, and the EBA negotiations between Powercor and the ETU?
PN518
MR O'GRADY: Indeed.
PN519
THE COMMISSIONER: Yes.
PN520
MR O'GRADY: And when viewed in that context, in my submission - - -
**** XN MR O'GRADY
PN521
THE COMMISSIONER: That is your point.
PN522
MR O'GRADY: Indeed. That is the case, Commissioner.
PN523
MR MIGHELL: Commissioner, yes, he hasn't - - -
PN524
THE COMMISSIONER: What is being said, Mr Mighell - sorry to interrupt you - but what is being said it is accepted by Mr O'Grady that this is an issue of weight. His submission is that it is an indication of certain - a position which the ETU is taking and he also suggests, as you have heard quite - that statements from the bar table in themselves are not evidence in regard to what you - who you spoke to and what you said. But rather if you want to have that put in as evidence you would need to go in the box and swear on oath to certain things.
PN525
MR MIGHELL: Well, that is all accepted. At the moment we have got the applicant leading its case. Now he hasn't heard much from the ETU because we haven't had our moment yet. Maybe he is a bit over anxious to hear from us, understandably perhaps he should be. But if they are going to introduce evidence, and I take a 127 as a serious matter. They lead evidence from Siemens; now I have tried to contact this person on e-mail purely by responding to that e-mail address in that e-mail because I have never dealt with this person before.
PN526
Now you can place all sorts of weight on it, and I think there is a lot of weight on that, I think that is a very serious e-mail. And if the applicant is introducing his evidence natural justice would give the union the opportunity to defend itself. Now I have tried to contact Paul Birch of Siemens by mobile phone, the only contact number I have for him, yesterday. I tried again this morning, I tried to respond to that e-mail. The union must have the right to respond to that. Now how we introduce that as evidence, well that is up to us, but I need to clarify off Siemens, who are being bought into this equation, by the evidence led by the applicant to be able to have some form of natural justice to defend the union's position.
**** XN MR O'GRADY
PN527
THE COMMISSIONER: But, Mr Mighell, you are the person who was referred to in this e-mail:
PN528
We have confirmed with Dean Mighell...
PN529
It is open to you to go into the box and take an oath regarding your evidence and present evidence that you have never spoken to anyone from Siemens that would lead to the statement by Mr Margach which is contained in this e-mail that says that Siemens has spoken to Mr Mighell and Mr Mighell has said the ETU is running a strategic agenda against Powercor in respect of the power industry matters. And that will be taken as evidence. And you will be the subject of cross-examination and you will answer any questions that go to that matter.
PN530
MR MIGHELL: Yes, happy to do that, that is one course of action. But I just - - -
PN531
THE COMMISSIONER: Because it is directly referring to you - - -
PN532
MR MIGHELL: Yes.
PN533
THE COMMISSIONER: - - - as the individual who gave that statement.
PN534
MR MIGHELL: There is no problem, Commissioner, for me getting into that witness box and saying that very thing.
PN535
THE COMMISSIONER: Yes.
**** XN MR O'GRADY
PN536
MR MIGHELL: I don't have legal counsel representing me when I do need to cross-examine me, but that is fine. I will even take that trip. What I am concerned about here is evidence that is hearsay at best is being lead by Siemens. Now Siemens is a pretty good player in this matter, they are a critical player. If the Commission is to be satisfied there is any industrial action in respect of this matter well then Siemens needs to be relied on as well. Now to put up information, and now I have never spoken to this man, that is clear, now I have spoken to people in Siemens.
PN537
Well then what I want the opportunity to do, and I am flagging with the Commission, that we would be seeking an adjournment at the end of this matter if that is anyway relied on to contact Siemens, clarify that matter, and produce our evidence in response to this, and I don't think in terms of natural justice that is too much to ask for.
PN538
THE COMMISSIONER: Well it is one piece of evidence that you could seek, Mr Mighell, but the other way is the way I have described where you could go in the box and deny that this conversation ever took place.
PN539
MR MIGHELL: Well - - -
PN540
THE COMMISSIONER: And your submissions will also go to this point which is being made by Mr O'Grady that the reason your union is refusing to sign the MOU with Powercor which would allow them to proceed with their work on the BassLink project is directly related to the failure of Powercor to resolve their EBA with the ETU including the 36 hour week issue.
PN541
MR MIGHELL: Commissioner, I am very happy to do that. I am mindful I don't have anyone else here at the bar table with me, but - - -
PN542
THE COMMISSIONER: Well that is your decision, Mr Mighell.
**** XN MR O'GRADY
PN543
MR MIGHELL: - - - but I accept though, Commissioner, if you have some role in putting the questions to me then I am very happy to go down that road, I am very happy to sit in the witness box and answer why this ETU hasn't breached any agreement with Powercor in respect to BassLink. Very happy to do that under oath, very happy to clarify conversations with Siemens. And if will assist the Commission then I am more than happy to do that. But I will just merely raise the point that they have bought Siemens into this equation, I want to bring Siemens in the equation in fairness and response and reserve the right to call Siemens to counter that evidence and bring our evidence about this matter in respect to that, that is all I would ask.
PN544
THE COMMISSIONER: Fine, Mr Mighell, but the other pieces of evidence - are you intending to bring either Mr Mooney or Mr Arnett as witnesses today?
PN545
MR MIGHELL: No, I don't think we need them to be quite honest.
PN546
THE COMMISSIONER: Well you see that is part of what Powercor is relying on. They are relying on assertions under oath by their witnesses that both Mr Mooney and Mr Arnett said to them, and it is in the notes of the witness who is in the box at the moment, Mr Minster, that Mr Arnett who said to him they won't sign the MOU until we finalise an EBA in our own industry, that is part of what is in there, not all of what is in there but part of. So the evidence that is being given in relation to statements of both Mr Mooney and Mr Arnett is not without some weight.
PN547
MR MIGHELL: No.
PN548
THE COMMISSIONER: You have the opportunity to bring either or both of Mr Arnett and Mr Mooney here, and put them in the box, and they can either confirm or deny those statements. Because the real issue here is at this stage, it is my view, the real issue is, is the ETU using its refusal to sign the MOU with Powercor re the BassLink project as an industrial pressure point on Powercor to get it to sign the EBA, the general EBA including the 36 hour week. That seems to be the issue that is - and in so far as Siemens is concerned, Siemens is just a party off to the side on this thing.
**** XN MR O'GRADY
PN549
This has got nothing to do with Siemens, excepting to the extent that there is a point of view been expressed that if Powercor does not have some form of agreement with the ETU, whether it is an MOU or an EBA, related to the BassLink project, Siemens could be required to refuse Powercor entry to its site as a contractor and Siemens is just off to the side. This is a dispute between Powercor and the ETU, and the Powercor allegation is the ETU is using the contract work which Powercor wants to do on the BassLink project as a lever in its dispute with Powercor over the current EBA negotiations.
[10.05am]
PN550
MR MIGHELL: Commissioner, I am more than well aware of where the applicant would like to try and take you and try and tell you all these things, and I will answer those things.
PN551
THE COMMISSIONER: Yes.
PN552
MR MIGHELL: Now, I can call a subordinate one or subordinate to Mr Mooney and put them in the box, if we wanted to. That is fine, and as you full well know the authorised officer on behalf of my union is here in front of you.
PN553
THE COMMISSIONER: Yes.
PN554
MR MIGHELL: And that is me.
PN555
THE COMMISSIONER: Yes.
**** XN MR O'GRADY
PN556
MR MIGHELL: Now, indulge me and ask one of my subordinates what their view of the world is and another, but by our union rules under - as a registered organisation, the authority lies with me. Now, I don't you could get a more credible witness in respect to that authority than myself, and I am more than happy to go in the box, and without defence of legal counsel on my side and have them and yourself ask me all the questions in the world, because I think we can clarify this matter. Now, Siemens isn't critical but when evidence is being led by their client, who we do have a binding document with, then it is an issue, and all I flag to the Commission is they have led evidence, I need to respond to that evidence as a form of natural justice, and that is all I have raised.
PN557
THE COMMISSIONER: Okay.
PN558
MR MIGHELL: Thanks.
PN559
MR O'GRADY: Commissioner, just following on from that, and I understand of course Mr Mighell is an extremely experienced union official and he knows these rules, I suspect, better than many legal counsel, but I should just put on the record we will of course at the end of the day be asking you to draw a Jones v Dunkel inference against the union from the failure to call Mr Arnett and Mr Mooney, and - - -
PN560
THE COMMISSIONER: Yes. You will argue, to the extent that I am familiar with Jones v Dunkel, that if there are allegations made that certain officers of the ETU made assertions regarding the linkage - - -
PN561
MR O'GRADY: Yes.
PN562
THE COMMISSIONER: - - - between the EBA negotiations and the BassLink MOU, and there is no evidence called to rebut that, there is a presumption that the evidence is correct.
**** XN MR O'GRADY
PN563
MR O'GRADY: Well, I think the presumption is you must assume that if they had have been called they would not have helped the union's case.
PN564
THE COMMISSIONER: Yes.
PN565
MR O'GRADY: And where you have got a straight out conflict between - or you have got some pretty strong assertions being made by Mr Minster regarding his conversations with both Mr Mooney and Mr Arnett. If you assume that if he had have got into the box they wouldn't have advanced the union's case, it is pretty strong corroboration, we would submit - - -
PN566
THE COMMISSIONER: Yes. Good.
PN567
MR O'GRADY: - - - of what Mr Minster is saying.
PN568
THE COMMISSIONER: Okay.
PN569
MR O'GRADY: Mr Minster, Mr Mighell raised again today this suggestion that there is some agreement that Siemens has with the ETU that requires you to have a certified agreement before you can come on to the BassLink site. At any stage have Siemens said to you that they have an enterprise agreement with the ETU that requires them to ensure that you have an enterprise agreement before you come on to the BassLink site?---No, they haven't.
PN570
No. You told us about the enterprise bargaining model agreement and you told us how that was introduced. Was there any other agreement that you became aware of that might have application to the BassLink project that Siemens had and that the ETU was a party to?---Yes, I am aware of - I am not sure of the exact title, but it is an agreement between the BassLink Consortium and a number of unions. It is a memorandum of understanding for the Victorian land content.
**** XN MR O'GRADY
PN571
Okay. Perhaps if you could have a look at this document for me, please. Is this the document that you are referring to?---That is the one I am aware of, yes.
PN572
All right, and how did you become aware of that document?---That was sent to me yesterday by Siemens.
PN573
Right, and did that flow from inquiries that you made in response to what Mr Mighell was saying yesterday about there being some binding agreement that required you to have an enterprise agreement to come on to the site?---This was sent in response to this inquiry.
PN574
Yes. I understand. Now, I have had a look through the document. The - - -
PN575
THE COMMISSIONER: Do you want to put it in as - - -
PN576
PN577
MR O'GRADY: Have a look at the document. The only part that seems to touch on contractors appears in clause 6, and it doesn't seem to impose any obligation at all, in contrast to what Mr Mighell was saying yesterday. But the second paragraph, clause 6, says:
PN578
The parties to this agreement...
PN579
and that includes Siemens, I would assume, and the ETU. Is that the case?---I am not sure who is part of the consortium, but I believe Siemens are.
**** XN MR O'GRADY
PN580
...note and confirm their mutual view that there is a benefit from the perspective of achieving safe and efficient operations and industrial harmony, including the utilisation of subcontractors where applicable, with a stable industrial record.
PN581
Now, other than that are you aware of any clause in this agreement that would require you to enter into a site specific enterprise agreement with the ETU before you could work on the BassLink project?---No, I am not.
PN582
THE COMMISSIONER: What does the last paragraph in section 6 go to, Mr O'Grady?
PN583
MR O'GRADY: Well, it would seem - - -
PN584
THE COMMISSIONER: Which is the certification of this agreement, is it?
PN585
MR O'GRADY: I would have thought it refers to the model agreement, which is P4.
PN586
THE COMMISSIONER: I see. Yes.
PN587
MR O'GRADY: So if a subcontractor wanted to enter into P4, then the ETU, as I understand it, or any other unions that are party to it, wouldn't unreasonably withhold their consent to that occurring.
PN588
THE COMMISSIONER: So one of the consortium members wishes to take on a subcontractor - - -
PN589
MR O'GRADY: Yes.
**** XN MR O'GRADY
PN590
THE COMMISSIONER: The subcontractor would be presented with the model agreement.
PN591
MR O'GRADY: Yes.
PN592
THE COMMISSIONER: And if the subcontractor then indicates that they are prepared to sign the model agreement, any concerns of the unions would need to be reasonable.
PN593
MR O'GRADY: Indeed.
PN594
THE COMMISSIONER: In terms of - - -
PN595
MR O'GRADY: That they wouldn't withhold their consent.
PN596
THE COMMISSIONER: - - - occ health and safety practices, or whatever.
PN597
MR O'GRADY: Yes. That they wouldn't withhold their consent to that certification unreasonably.
PN598
THE COMMISSIONER: Yes.
PN599
MR O'GRADY: That is my understanding.
PN600
THE COMMISSIONER: Okay.
PN601
MR O'GRADY: So in the context of this case you have heard, and will hear more evidence about Enesty Energy wanting to come on to the site.
**** XN MR O'GRADY
PN602
THE COMMISSIONER: Yes, yes.
PN603
MR O'GRADY: And being willing to enter into the model agreement.
PN604
THE COMMISSIONER: Yes.
PN605
MR O'GRADY: But the union not allowing them to. Now, in paragraph 24 you say:
PN606
The present situation is that the respondent is refusing to allow any of its members, be they Powercor employees or employees of any Powercor subcontractors, to work on the BassLink project until the memorandum of understanding is signed.
PN607
Now, you have told us that you are happy to sign the memorandum of understanding. Is that the case?---That is right.
PN608
All right, and is it your understanding that if the union were to either indicate that the memorandum of understanding didn't have to be signed, or - sorry. Was that if the union were to sign that memorandum of understanding you would be able to go on to site and perform this work?---That is right.
PN609
And at any stage has any issue other than the general enterprise bargaining negotiations been put to you by either Mr Mooney or Mr Arnett as a reason for why a memorandum of understanding hasn't been signed by the union?---No, there is no other reason why.
PN610
If the Commission pleases.
**** XN MR O'GRADY
PN611
PN612
MR MIGHELL: Thank you, Commissioner. Mr Minster, you have been working in industrial relations for many years, haven't you?---Around about 30 years.
PN613
And in all those 30 years you would have had many dealings with unions, almost constant I would imagine?---Yes. In fact I worked for unions for about 10 years, as well.
PN614
Well, then, you would be familiar that in terms of the unions, specifically our union, that organisers have some ability. But the ultimate authority to act on that organisation lies with the State Secretary?---Yes, and that was made clear to me by Mr Mooney and Mr Arnett.
PN615
Yes. On both occasions they told you, didn't they, when you talked to them about the BassLink agreement, that you should contact the State Secretary?---Mr Mooney told me that, yes.
PN616
Well, you actually said previously when you were asked, you said you went and spoke to Mr Arnett about the BassLink agreement. You said it wasn't really Mr Mooney's authority - Mr Arnett's authority. Mr Mooney was doing it, and Mr Arnett told you to talk to me. That was your evidence?---No. No, I didn't say that.
PN617
Well - - -?---Mr Mooney asked me to talk to you. Mr Arnett, on the - when I spoke to him on the 13th - - -
PN618
Yes?--- - - - told me that even after our enterprise agreement was finalised I would then need to talk to you about the BassLink situation.
**** XXN MR MIGHELL
PN619
Well, I think, given the opportunity, Commissioner, if you read back on the transcript of that question Mr Minster did say he spoke to Mr Arnett about BassLink, and that in fact he did say that Arnett - Mr Arnett told him to speak to me as well. But you are denying that now, Mr Minster, are you?---I didn't say that.
PN620
You didn't say it? Okay.
PN621
THE COMMISSIONER: My notes, which are just an abbreviation of what the evidence has been thus far, in regard to discussions with Mr Arnett, it started off the a note about the changed position on the 26 hour week issue; that Mr Minster wanted some slack on BassLink. Arnett said probably okay. Conversation with Arnett on 11/10. BassLink no resolution. He hadn't spoken to Dean Mighell. Arnett would have to contact Dean Mighell.
PN622
MR MIGHELL: Yes.
PN623
THE COMMISSIONER: And that is far as my notes suggest.
PN624
MR MIGHELL: But - yes, fine, Commissioner. But reading back, I am sure Mr - the transcript will reveal either that I am right or wrong about Mr Minster's statement.
PN625
THE COMMISSIONER: Yes.
PN626
MR MIGHELL: Mr Minster, you were aware that Mr Mooney was handling the BassLink project agreement, weren't you?---Yes.
PN627
Not Mr Arnett. He had nothing to do with it, did he?---No. The only reason I raised BassLink with Mr Arnett was in the context of the offer that we were making on the enterprise agreement.
**** XXN MR MIGHELL
PN628
But we had Mr Arnett handling the matter of your enterprise agreement with the Powercor employees. Quite separately, Mr Mooney handling BassLink, didn't we?---That is right.
PN629
Yet you felt compelled to talk about BassLink with Mr Arnett?---In the context of the offer that we were making on the enterprise agreement.
PN630
Okay?---That was the only discussion that I had with BassLink.
PN631
Right. Can I take you back to Exhibit P1? You have got a copy of that there.
PN632
THE COMMISSIONER: Which? Because there are several parts, Mr Mighell.
PN633
MR MIGHELL: Which is the e-mail. Yes.
PN634
THE COMMISSIONER: The e-mail?
PN635
MR MIGHELL: Really the first page - - -
PN636
THE COMMISSIONER: Yes.
PN637
MR MIGHELL: - - - that I am after, Commissioner, in respect to that. Mr Minster, you see the first e-mail addressed to you from Peter Mooney. He says:
PN638
Ken, this is my latest draft with your changes. I have included the waives and allowances clause in the draft. Have you made contact with Dean? Call me if you have any problems with the draft or contacting Dean.
**** XXN MR MIGHELL
PN639
What was your response to that?---I contacted Mr Mooney and said that we discussed it at Powercor and we didn't intend to make contact with Dean at this point.
PN640
I am sorry? You didn't contact - - -?---We said we didn't intend to make contact with Dean at this stage.
PN641
Why?---That is what I said to Mr Mooney.
PN642
Why did Powercor form that view?---Because we felt at that stage that contacting you on the BassLink project might jeopardise our position on the enterprise agreement, because we did see they were linked.
PN643
So you chose not to - you had an organiser you were negotiating an agreement with who said to you, "I am not going to sign off on this. The union can't sign off on this. You must talk to the authorised officer," and Powercor chose not to do that. Is that correct?---I just said we chose not to do that.
PN644
Okay. Well, fine. You were handed up Exhibit P6. Can I take you to that, which is the Vic-Tas Interconnector Consortium document? That is the one?---Yes.
PN645
Now, can I take you to clause 6 of that agreement? The scope and application. It says there that the parties - can you follow - the second paragraph of clause 6:
PN646
The parties to this agreement note and confirm their mutual view that there is a benefit from the perspective of achieving safe and efficient operations, industrial harmony, including the utilisation of contractors where applicable with stable industrial record.
**** XXN MR MIGHELL
PN647
It then goes on to say:
PN648
The unions party to this agreement must not unreasonable withhold their consent to certifying the terms for the BassLink Interconnector Victorian Enterprise Model Agreement.
PN649
Now, you would have to take from that, would you not, that you were required to certify - Powercor was required to certify a BassLink model agreement.
PN650
MR O'GRADY: Well, I object to the question, Commissioner. At the end of the day what these words mean and whether they impose any obligation is going to be a matter for you. This man doesn't hold himself out to be a lawyer and professing an expert opinion about what the agreement requires or doesn't require. It is a matter for submission, in my submission.
PN651
THE COMMISSIONER: Well, Mr O'Grady, Mr Minster is in the box. He said he has 30 years experience in the industrial relations area. Mr Mighell is asking him an opinion as to what the last paragraph of the document that you have partly relied on requires of companies involved with the BassLink project. I don't think it is an unfair question.
PN652
MR O'GRADY: It may just go to weight, Commissioner.
PN653
THE COMMISSIONER: Yes. It may well do.
PN654
MR O'GRADY: What I will be putting to you at the end of the day is - - -
PN655
THE COMMISSIONER: Yes.
**** XXN MR MIGHELL
PN656
MR O'GRADY: - - - Mr Minster's view may be right or it may be wrong.
PN657
THE COMMISSIONER: I agree.
PN658
MR O'GRADY: Yes, as the Commission pleases.
PN659
MR MIGHELL: So, Mr Minster, what do you take that last paragraph under 6 to mean?---That - I take that to mean that if we were to be signing up to the model agreement then it would need to be certified. However, in our discussions with Mr Mooney and previous records on some of these sites, we would not sign on to the site agreement, although we would be bound by some of the conditions.
PN660
Now, yourself and Mr Turner met with Mr Mooney even before then, I think, on 13 September. What caused you go and seek to meet with Mr Mooney about the BassLink agreement, or the BassLink project?---Well, we sought to meet with the three unions that we knew would have members with either the subcontractors that we were going to use or for our own people, to find out what would be the requirements of either our subcontractors or ourselves, once we got on to the - well, if we wanted to get on to the site to do the work.
PN661
Sure. Now, you would you have known, wouldn't you, in your experience that you would have needed some form of project agreement?---Not - well, for our subcontractors, yes. For Powercor generally, no.
PN662
You don't - you didn't feel you would ever have to worry about a project agreement for the - the agreement for Powercor?---No, because our record on getting on a number of sites from a Powercor point of view is that we don't usually sign on to the site agreement, although we pay site allowances and take on some of the conditions. But as a rule we don't sign on to the site agreements on any of the sites we go on to.
**** XXN MR MIGHELL
PN663
Okay. But Mr Mooney said, "Look, you will need some form of agreement on this project." Did that ever trigger you to go back to your client and say, "Well, look, we are required to have some form of agreement here. What do you require us to have"?---What Mr Mooney said to us at that meeting was that he didn't believe we needed to sign on to the model agreement because there was a number of things in it that wouldn't bind us. But he would draw it up, the memorandum of understanding, which he subsequently sent to me.
PN664
Yes. That is fine. Did you ever go back to your client and say, you know, "The union has hit us with this - all these site allowances and everything which we have to pay. How do you feel about that?" Or what did the requirement require? Anything - the client - - -?---No, because the site allowances and the increased wages and the 36 hour week on that site even didn't concern us, because we get caught up with a number of site conditions without any great concern. It was only later on when we had some difficulty with the - getting the memorandum of understanding signed that we went back to Siemens and spoke to them about it, and at that point they didn't say to us that we needed an enterprise agreement specific to the site.
PN665
But some time ago, Mr Turner said yesterday, you know, obviously even before that Powercor would have tendered to win work, and I am sure when it tendered that process - please correct me if I am wrong - you would have had to have been aware of what the terms and conditions would have been for employees in case you had to pay more, in which case it was the case. So were you involved at any earlier stage in considering those issues for Powercor?---I was involved in some respect in that if we were awarded the contract then we would need to make contact with the unions that were involved in the area to see what would be actually needed, and that is exactly what we did. In any contract - in any awarding of any contract we don't get concerned about the increased rates of pay or allowances, or basically anything else, apart from not being involved in the likes of Cbus, Incolink, CoINVEST, or that sort of thing. That is the only thing that bothers us.
PN666
You would have known Siemens had a project agreement, wouldn't you?---We were aware of the model agreement.
**** XXN MR MIGHELL
PN667
Yes?---If that is what you mean.
PN668
Yes?---But we weren't aware, and still are not aware of any other Siemens agreement on the BassLink site.
PN669
When were you aware of the model agreement?---Prior to us going down to talking to the three unions on 13 September.
PN670
Yes. Commissioner, yesterday a document was introduced by the applicant and I am not sure that it was given an exhibit number. The Tas Interconnector Consortium Project Agreement, I believe. Is it P4?
PN671
THE COMMISSIONER: P4. Yes.
PN672
MR MIGHELL: Yes, thanks, and Mr Minster, you have got a copy of that?---I have got a copy.
PN673
When did you first see that agreement, or that document?---Well, prior to going down on the 13th - I am not sure of the exact date. It may have been another - 9 or 10 September.
PN674
Yes. Can I take you to clause 3, scope and application, of P4, on page 4?---Yes.
PN675
Just take you down to the sixth paragraph where it says:
**** XXN MR MIGHELL
PN676
The parties to this agreement note and confirm their mutual view there is a benefit from the perspective of achieving safe and efficient operations and industrial harmony, including stable IR record. If subcontractors have a stable industrial relations record and work under industrial instruments which mirror in essential details these contained in this agreement, subject to all ..... and encourage the subbies and employees in this direction.
PN677
It then goes on and says:
PN678
If a subcontractor already has commenced work on the project prior to making this agreement the unions and parties must not unreasonably hold the consent to certifying the terms of this agreement for that subcontractor.
PN679
What do you take that to mean for Powercor?---Which clause? The first one or the second one?---Well, either. Both.
PN680
Well, the first one, you ignore the pre-amble. It means that if we have a stable industrial record and work under industrial instruments which mirror the essential details in this, and we took it that the memorandum of understanding mirrored the essential details in that, which we were prepared to sign, then that was okay. If we - the second paragraph that you referred to, if the subcontractor has already commenced work on the project, I think is irrelevant to us, because we hadn't already commenced work on the project.
PN681
So it is your honest view that you were never required to have a certified agreement with the union to cover your employees working on that project?---Well, we have a certified agreement in our own industry, and the memorandum of understanding - it was our belief that was all we needed, and it is not much different to our other subcontractors who have an industry specific agreement and must sign on to the BassLink, this model agreement. It is - our view was that if we had an industry agreement, which we have, and signed on to the memorandum of understanding which mirrored the essential details of the model agreement then that was all we required.
**** XXN MR MIGHELL
PN682
But there was some doubt about what you needed, wasn't there? Mr Mooney said there was doubt about what you needed?---Well, it wasn't doubt about it after we left the meeting with Mr Mooney, because by that stage he had raised the issue of a memorandum of understanding, which we said, "Send us a copy. We will have a look at it and we will advise you whether it is suitable or not." He also said at that meeting that he would have to talk to yourself and to Greg about where we stood.
PN683
That is right. So you knew there was issues. You knew you had to go and speak to the authorised officer of the union, but you didn't?---No, I didn't know we had to go and speak to the authorised officer of the union. I knew that the authorised officer would need to sign the agreement. But in a number of negotiations that I have been involved in with Powercor, over about 10 years, I have never gone to speak to the authorised officer, but the authorised officer has always signed the enterprise agreements.
PN684
Well, Mr Minster, you and I have had dealings over agreements and issues between the Powercor and I think previous entities over the years, in my capacity of authorised officer and otherwise, haven't we?---You might have a better memory than I have, Mr Mighell. I can't recall the dealings that you say we have had.
PN685
But you don't - you don't deny Mr Mooney had told you repeatedly, verbally and in e-mails, "You have got to talk to the State Sec"?---If I wanted to get the memorandum of understanding signed he said I had to go and talk to you.
PN686
But is that what he said? I mean, in P1 he didn't say that, did he? Go back to P1?---No, no. This was later on. Which is P1, sorry?
PN687
P1 is the e-mail?---No, he didn't say it at that point.
PN688
Yes?---He said it between the e-mail dated the 20th, which I sent back to him with our wage rates, and the e-mail that he sent back to me on the 22nd, that I would need to make contact with you.
**** XXN MR MIGHELL
PN689
If you made contact with me, as Mr Mooney requested, and as Mr Arnett advised you to do, do you believe there is a chance that all of this confusion could have been avoided and we could have not been in any dispute at all, or any question of being in dispute?---Well, two points there. First of all, Mr Arnett didn't advise me to talk to you on the issue. Mr Mooney did. And second, you are asking me for my opinion on - to say, look, if I had have contacted you what would have happened, and that is just a guess on my part. I don't know.
PN690
[10.30am]
PN691
Mr Minster, you said you have got a - there is a current certified agreement in place between your organisation and the ETU. In that agreement is there any requirement for you to negotiate with the union appropriate rates and paying conditions in line with the contracting industry standards where you win external work?---Yes.
PN692
There is?---There is.
PN693
So it is part of your obligations to negotiate contracting industry standards with the union for external work?---Yes, we normally refer to the pattern agreement with NECCA as the standards that we negotiate. And normally the only difference between the rates that we pay and the rates under those agreements are very minimal. And we pick up the site agreements, or the site allowances, on those sites to standardise the rates and any other conditions that are on site.
PN694
I have nothing else. Thank you, Commissioner.
PN695
THE COMMISSIONER: Good. Thank you, Mr Mighell. Can somebody clarify to me the status of P6 which is the agreement between the Tas Victoria Interconnector consortium and a range of unions. Is that a certified agreement or is it a memorandum of understanding?
**** XXN MR MIGHELL
PN696
MR O'GRADY: On my understanding, Commissioner, it is a memorandum of understanding.
PN697
THE COMMISSIONER: So this is a memorandum of understanding which sets out a range of issues which will determine the industrial conditions of employees on the land content of the - of the - - -
PN698
MR O'GRADY: Project.
PN699
THE COMMISSIONER: - - - BassLink project. Not certified?
PN700
MR O'GRADY: As far as I am aware it has not been certified, Commissioner.
PN701
THE COMMISSIONER: It does not contain wage rates - - -
PN702
MR O'GRADY: No.
PN703
THE COMMISSIONER: - - - that I can see. It really talks about a fairly narrow range of issues doesn't it?
PN704
MR O'GRADY: Yes.
PN705
THE COMMISSIONER: Okay. Thank you. Any re-examination, Mr O'Grady?
PN706
**** RXN MR O'GRADY
PN707
MR O'GRADY: Mr Minster, if we raise with you that you are under an obligation to negotiate rates for contractor work that you undertake and you referred to the NECCA rates?---That is right.
PN708
Yes. With respect to your conversation with Mr Mooney did you discuss the rates that you would be paying on the BassLink site?---Yes. The only difficulty there was that Mr Mooney was not aware of the classifications and the rates of pay that existed under our agreement. And that is why I forwarded the classification levels and some explanation to him. He then added the loadings and the extras on and sent them back to me. And we accepted the additional rates.
PN709
Yes. Thank you. Thank you, Mr Minster. No further questions, Commissioner.
PN710
PN711
THE COMMISSIONER: Now you have one more witness I think, Mr O'Grady.
PN712
MR O'GRADY: That is right. Mr Nigel Turner, Commissioner.
PN713
THE COMMISSIONER: Mr Turner. He is no relation I take it, Mr O'Grady?
PN714
PN715
MR O'GRADY: Mr Turner, could you tell the Commission your full name please, sir?---Nigel Scott Turner.
PN716
And what is your occupation, Mr Turner?---I am the Managing Director of Enesty Energy.
PN717
And what is your business address in that capacity?---Unit 7, 339 Williamstown Road, Port Melbourne.
PN718
Okay. And have you prepared a witness statement for the purpose of these proceedings?---I have.
PN719
Could you have a look at this document for me please? Is that a copy of the witness statement you prepared?---It is.
PN720
And to the best of your knowledge are its contents true and correct?---It is.
PN721
PN722
MR O'GRADY: Thank you, sir. Now, Mr Turner, does Enesty Energy have a current enterprise agreement with the ETU?---Yes, it does.
PN723
Could you have a look at this for me please? I think you might already have a copy, Commissioner.
**** NIGEL SCOTT TURNER XN MR O'GRADY
PN724
THE COMMISSIONER: Yes, I do.
PN725
MR O'GRADY: Could you tell the Commission what this is a photocopy of?---This is a photocopy of a card that was issued to me immediately after signing the agreement at the union office.
PN726
PN727
MR O'GRADY: Thank you, sir. Now as I understand it from your witness statement, Mr Turner, you have a subcontract with Powercor -some work on the BassLink project?---We do.
PN728
And you attended - sorry, you contacted - sorry, I will start again. You were contacted by Mr Mooney in respect of your work on that project?---I was after a phone call that I put into Peter on a previous date.
PN729
And you say in paragraph six of your statement that on 4 October you explained to Mr Mooney that you were engaged as a subcontractor and you wanted to meet with him and sign any necessary agreement that we would be required to do work on site. And Mr Mooney said that he was happy and you arranged to meet him the next day?---Yes, that is correct.
PN730
Now you have heard, when in Court, while we have been talking about various agreements that apply to this site and one of those is exhibit P4 - the Tas-Vic Interconnector Consortium BassLink Project Victoria Enterprise Bargaining Model Agreement. Are you aware of that agreement?---Yes, I am.
**** NIGEL SCOTT TURNER XN MR O'GRADY
PN731
And are you prepared, or is Enesty Energy, prepared to enter into that agreement as part of conducting work on the BassLink site?---Yes.
PN732
And you say in paragraph seven of your statement that when you met with Mr Mooney on 5 October he told you he would not issue Enesty Energy with a site agreement. That the problem was not with you it was with Powercor. Is that what took place?---Basically, yes. Mr Mooney expressed that we were fine to go on the site apart from that there was some documentation that needed to be drafted and a memorandum of understanding was one of them before - - -
PN733
Well, Mr Mooney having said that. Why didn't you just go on to the site anyway?---We are not really prepared to cause industrial disharmony or anything like that. So generally we just walk away from a subject of that.
PN734
And was it your understanding that were you just to go on to the site anyway without having this issue squared away with Mr Mooney or the ETU that you would be causing industrial disharmony?---Yes, I guess so.
PN735
I have no further questions, Commissioner.
PN736
THE COMMISSIONER: Thank you, Mr O'Grady. Mr Mighell?
PN737
PN738
MR MIGHELL: Mr Turner, you contacted Mr Mooney initially. You initiated contact. What was the purpose of that?---That was totally just to make contact with him and inform him that we were engaged as a subcontractor by Powercor to do some work on the BassLink project. And that I wanted to sort out the relevant documentation and get on site.
**** NIGEL SCOTT TURNER XXN MR MIGHELL
PN739
Had Powercor instructed you to call him?---Yes.
PN740
Okay. They have instructed you to call Mr Mooney. You have rung. He then met with you did he?---Yes.
PN741
Okay. You indicated that you would need a memorandum of understanding. You were happy with that. You indicated you were prepared to enter into an MOU. Can I ask you would you be prepared to enter into a certified agreement under the terms, those terms, a proper certified agreement? Certified with the Commission?---We were prepared to enter into a certified agreement for that project. Yes.
PN742
You said that Mr Mooney said you were right to go on site but you chose not to. Can you just explain why you chose not to?---The reason why we chose not to is because we were not going to be granted approval of the site agreement. And to my understanding and so forth we were not going to go on to that site without that agreement in place.
PN743
Did Mr Mooney tell you that you should not go on site without that agreement?---No, I guess not.
PN744
Who told you?---It was my decision not to go on site.
PN745
So Mr Mooney never said; you are not allowed to go on site?---No, I guess not.
PN746
PN747
MR O'GRADY: Just if I could clarify, Mr Turner. Mr Mooney said; he would not let you sign the model enterprise agreement because you were subcontracted to Powercor. Is that the case?---Yes.
**** NIGEL SCOTT TURNER RXN MR O'GRADY
PN748
And in those circumstances, after Mr Mooney having told you we are not going to let you sign the model enterprise agreement, why didn't you go on site?---Purely because we did not have that agreement in place and I did not want to go on to that site to create disharmony.
PN749
I have no further questions, Commissioner.
PN750
THE COMMISSIONER: Thanks, Mr O'Grady. Do I take it that completes your evidence, Mr O'Grady.
PN751
MR O'GRADY: Yes, it does.
PN752
PN753
THE COMMISSIONER: Mr Mighell, we have spoken earlier about the opportunity for you to give witness evidence. I am - if that is in any way an option you would like to take up I am prepared to adjourn for 30 minutes to allow you to - see the way I think it could happen is that you could go into the box. You could take the oath. And then you could make a sworn statement in the box about the matters relevant to the evidence that you have heard and your knowledge of that evidence.
PN754
If I felt it was necessary I could ask you a couple of questions. But basically it would be your statement. And then that would be subject to cross-examination by Mr O'Grady. If you are interested in that opportunity - - -
PN755
MR MIGHELL: I am happy - - -
PN756
THE COMMISSIONER: - - - perhaps we could have an adjournment for 30 minutes to allow you to collect your thoughts and - - -
PN757
MR MIGHELL: I am happy to go in there right now.
PN758
THE COMMISSIONER: You are okay to go in?
PN759
MR MIGHELL: Yes. Not a problem at all.
PN760
PN761
THE COMMISSIONER: Mr Mighell, would you like to give a statement of your evidence in this matter?---Yes, thank you, Commissioner. Unusual circumstances but - I will sum up later and reserve a few things. But for us - I am the State Secretary of the Electrical Trades Union. I have had that capacity since August 1995. And have dealt with a very vast and large number of industrial issues. Have been the signatory to many thousands of certified agreements that effect the union.
PN762
And have in the best part of 18 industrial staff acting for the union. The rules of our union, Commissioner, are very clear in that they - the organisers work as directed by me. It is a responsibility that I have to accept as the office bearer of the union. I am the officer who is sued and who sues on behalf of the organisation. Our organisers act quite autonomously out of necessity on many issues. And it is entirely normal for a range of officials to perform a range of negotiations certainly without daily contact with me. In the particular instance concerning this application, Mr Greg Arnett has been negotiating the Powercor agreement for the direct hire employees of Powercor with Powercor for probably in excess of 10 months.
PN763
And he has certainly been involved in many Commission hearings before yourself as well. Mr Arnett has not been involved at any stage with negotiations for the BassLink agreement nor has he been involved at any stage in respect to agreements with Powercor employees working on BassLink. Mr Peter Mooney who is an official with our organisation operating out of the Morwell office has had the sole undertaking of negotiations for the BassLink agreements in respect to sub contractors. It was my personal responsibility and I took it on personally to negotiate with Siemens, the initial BassLink agreement. It was a project agreement that was seen as particular significance to the State of Victoria. I assisted Mr Paul Birch of Siemens in many, many private conversations about the best way to get that agreement up and put a fairly high personal stake in its involvement, my involvement with it and ultimately the parties reached agreement, on certainly, most of the issues in respect to the BassLink agreement. One of the most important things was harmonious industrial relations at BassLink and right from day one I indicated to Mr Birch that we didn't want to have disputes on the BassLink agreement. We wanted to ensure that we minimised any potential industrial action that could occur on that project. That was seen as a key to both parties. To that end we agreed that the contractors who would perform work for Siemens at BassLink would all have current certified agreements with the relevant union. As I understand that now that is certainly reflected in the agreement. It is without doubt the understanding between Siemens and the unions about the nature of work and the nature of industrial implements that would cover work performed on the BassLink project. Powercor, as I understand it, have one contract work on that project and they employ many people with vast industrial experience and are familiar with the dealings with the Electrical Trade Union. At the BassLink project agreement they are required under that legal agreement we have with Siemens, an agreement that has been honoured, to have a current certified agreement that mirrors the terms and conditions of the BassLink MOU. Powercor does not have that agreement and I understand and accept that Mr Mooney has been involved in discussions with Mr Minster and others from Powercor in trying to develop an MOU. Mr Mooney acts with some autonomy but without ultimate authority. Mr Mooney has always made it clear to Mr Minster that Mr Minster would need to contact myself as the state secretary of the union to ensure that an agreement was reached in terms acceptable to the union ultimately. And Mr Minster has not done that. Has never sought to contact myself. No-one from Powercor has ever sought to contact me in respect to this matter to clarify the understandings and this is despite being told by Mr Mooney and Mr Arnett that they would need to do so. It is my firm belief that Powercor has for, its very own reasons that I do not understand, deliberately chose not to liaise with me in order to try and resolve any outstanding matters. The union relies heavily on its agreements with Siemens. We believe the project agreements are critical to the timely completion of projects in Victoria and are mindful of our responsibilities to honour the agreements we enter into. It is my view that if Powercor or any other sub contractor was to begin work on the BassLink agreement without complying with the agreements with their client, Siemens, who has an agreement with us, then there would be a breach of that agreement and that could lead to more industrial disputation. The union wishes to honour its agreements and we would reiterate that we are happy to sit down and negotiate with Powercor or any of its sub contractors a certified agreement in respect to the BassLink project that would comply with the agreements we have with their client. The union is not preventing Powercor from entering on to the BassLink project for any other reason in respect to its enterprise agreement. As the authorised officer of the union I am fully capable of making the statement that says that I am very happy to sit down with Powercor, negotiate the proper terms and conditions of a certified agreement for the BassLink project and I will do so personally. Should we reach agreement on that, which I don't imagine would be all that difficult, there would be no problem with the union certifying that agreement and work going ahead. It isn't a matter of resolving Powercor's outstanding issues that they have in respect to their own EBA. It is a separate matter. It is progressing, as I understand it, between the parties. There is movement on those issues and I have left Mr Arnett to see those issues through and I am very confident, or hope so, that anyway that the parties will reach some agreement in the near future about those matters. BassLink is stand alone, it is unique, it is an important project and unions and employers enter into project agreements and we don't want them broken. The extent of Powercor's application would be urging us to break that site agreement and we are not prepared to do that. If the Commission pleases.
PN764
Good, thanks, Mr Mighell. Mr O'Grady.
PN765
PN766
MR O'GRADY: Mr Mighell, as I understand what you have said it is the case that the union is not preventing Powercor from coming on to the site for any other reason than the fact that they don't have an agreement in the terms of the enterprise bargaining model agreement. Is that the case?---Well, it is not necessarily, it is just a matter of refusing Powercor to go on site. We believe that for Siemens to allow Powercor to undertake work there they have to have a certified agreement in place with the union.
PN767
Just bear with my question, Mr Mighell?---Yes.
PN768
Your evidence was that the union is not preventing Powercor from coming on to the site for any other reason than the fact that they don't have an agreement along the lines of the model enterprise bargaining agreement. Is that your evidence?---No, my evidence is that Powercor does not have a certified agreement in place that mirrors the terms and conditions of the BassLink project agreement that is required for them to undertake work on the site.
PN769
And the corollary of that, or the consequence of that, is that the union won't let them on site?---No, the consequence of that is that they are in breach of the agreement, or Siemens would be in breach of the agreement, if they let them on without those - that certified agreement being in place.
PN770
Well, I want to talk to you about Siemens' obligations in a moment. But is it the case or isn't it that the union won't let Powercor on to the site until they have an agreement along the lines of the enterprise bargaining model agreement?---No. The union doesn't want Power to go on site in a manner that would breach the project agreement that we have in place with Siemens.
PN771
Can Powercor go on to the site now, from the union's point of view?---The union doesn't want them going on site now because they will be in breach of the agreement we have with their client.
**** DEAN MIGHELL XXN MR O'GRADY
PN772
And if Powercor were to go on to the site now, then that would potentially lead to industrial disputation with respect to the site, wouldn't it?---Well, it certainly would be a breach of the agreement that we have with Siemens.
PN773
Do you understand my question?---Yes, and I answered it.
PN774
Well, could you answer my question?---Did you understand my answer? I think I did.
PN775
No. If the Powercor - - -?---Will you let me finish? I will answer your questions. You are - - -
PN776
No, please. If you could answer my question?---Well, I was attempting to do that.
PN777
THE COMMISSIONER: Gentlemen, re-state your question, Mr O'Grady, and Mr Mighell will answer it, without interruption please.
PN778
MR O'GRADY: Thank you, sir. If Powercor were to go on site without an enterprise agreement entered into with the union, that would potentially lead to industrial disputation, wouldn't it?---Well, there would certainly be a potential industrial dispute.
PN779
All right, and that would be an industrial dispute between the ETU and Powercor?---Well, I think it would be a breach of agreement between us and Siemens.
PN780
I want to talk to you about that in a moment, but you accept that there might be industrial disputation were Powercor to go on to site without an enterprise agreement?---Well, I think when you have a breach of agreement it certainly gives rise to an industrial dispute.
**** DEAN MIGHELL XXN MR O'GRADY
PN781
Okay. All right, and it is the case, isn't it, that if Powercor were to reach an agreement with the union that was certified they could go on to the site?---That is correct.
PN782
Yes. So that is the sticking point. The failure to reach an agreement with the union?---That is right.
PN783
Now - - -
PN784
THE COMMISSIONER: I gather from Mr Mighell's evidence it is not the failure to reach agreement, Mr O'Grady. It is the failure to have a certified agreement.
PN785
MR O'GRADY: Okay. All right. I think that is probably - - -
PN786
THE COMMISSIONER: That is what his evidence is.
PN787
MR O'GRADY: In context of what he said already, yes, I accept that, Commissioner. Now, you have said on a number of occasions that Siemens is under an obligation to insure that Powercor has a certified agreement with the union that is site specific, or words to that effect. Do you accept that? Is that your evidence?---Yes.
PN788
And you say that flows from which document, Mr Mighell?---Well, it flows from a very clear agreement I have with Mr Paul Birch with Siemens, and I also say that that is the intent, without doubt, of the MOUs between the BassLink consortium and the unions.
PN789
I see.
**** DEAN MIGHELL XXN MR O'GRADY
PN790
THE COMMISSIONER: That is P6. That is this one here, Mr Mighell?---Yes, it is. It is P6, and I think it is P4 too, Commissioner.
PN791
So, P4, is Siemens a party to P4?---I believe Siemens prepared P4.
PN792
Did you understand my question, Mr Mighell?---Well, I don't know whether they are intended to be a party to it or not. I have not looked at the back of it.
PN793
Well, if Siemens are not a party to it, they can't be bound by it, can they?---Well, I think the intent might be that they are. I am not too sure about that.
PN794
Do you know whether they are a party or not?---I am looking at the signatory page. No, I don't. It is an unsigned version of it. I don't know who signed it on behalf of the employers.
PN795
THE COMMISSIONER: Mr O'Grady, this is a model agreement, prepared on behalf of the Interconnector consortium.
PN796
MR O'GRADY: Yes.
PN797
THE COMMISSIONER: Which has as one of its major players, Siemens, I take it.
PN798
MR O'GRADY: Yes.
PN799
THE COMMISSIONER: But it applies to contractors.
**** DEAN MIGHELL XXN MR O'GRADY
PN800
MR O'GRADY: Yes.
PN801
THE COMMISSIONER: So obviously Siemens is not a party to a model agreement which applies to contractors.
PN802
MR O'GRADY: I would not have thought so, Commissioner. You see, one of the things I have been trying to understand is, you recall yesterday, Commissioner, Mr Mighell was very clear when he said there was a certified agreement between the ETU and Siemens that required Siemens to have all of its subcontractors enter into a certified agreement before they could work on site. We have not seen any such agreement.
PN803
THE COMMISSIONER: Except in P6.
PN804
MR O'GRADY: Well, P6 isn't a certified agreement.
PN805
THE COMMISSIONER: No, it is an MAU.
PN806
MR O'GRADY: Indeed, and Mr Mighell said that. He has given his evidence now, and he has not produced any such agreement. And I asked him, well, where are the documents, and I said - I asked him about P6, and he says P6 is there, and he also said P4. And that is why I asked him whether Siemens was party. I accept what you say, Commissioner. Siemens is not a party. This agreement cannot impose any obligations on Siemens with respect to the terms and conditions on its site contracts.
PN807
THE COMMISSIONER: Not any obligations under the Workplace Relations Act and its provisions. But on the face of it, Siemens was one of the negotiating parties that resolved what the content of the model agreement was going to be, and, on the face of it, has given assurances to the union parties that this model agreement will be applied to contractors who wish to come on site. And it is envisaged that this will be a certified agreement.
**** DEAN MIGHELL XXN MR O'GRADY
PN808
MR O'GRADY: I accept that that is an inference that you could draw from the terms of the agreement. There is no other evidence of that other than - - -
PN809
THE COMMISSIONER: I am simply making the point, Mr O'Grady, although strictly you are correct, the model agreement does not on its face bind Siemens as a party, but it is only half of the story, I suggest. Siemens was a major player in the development of the model agreement, and must accept some of the responsibility for the implementation of its contents.
PN810
MR O'GRADY: Perhaps if I can turn to the contents of that agreement. Clause 3 is the clause that you referred to in cross-examination, as I understand it, Mr Mighell?
PN811
THE COMMISSIONER: This is P4 we are going to, Mr O'Grady?
PN812
MR O'GRADY: Yes, Commissioner.
PN813
And you refer to the two paragraphs in the centre of the clause?---Yes.
PN814
I put it to you that neither of those paragraphs imposes any obligation upon Siemens to ensure that everybody who works on their site, or even every subcontractor who works on the site has a certified agreement with the union?---Well, that may be your interpretation of that. I have had the benefit of being probably the principal and first union negotiator to sit down with Siemens and be very clear about what that means.
PN815
Well, you know better than I do, Mr Mighell, that agreements are all composed of words, and you work out what the agreement obliges people to do by looking at what those words are. That is how it works, is it not?---Well, I think you sit down and you negotiate with someone about what the intent of clauses are, and you rely on a bit of honour and a bit of trust to get them through. And certainly I am clear on what that means, and I believe Siemens would be very clear on what that means.
**** DEAN MIGHELL XXN MR O'GRADY
PN816
Do you accept that the words in themselves - leave to one side your understanding or whatever Siemens' understanding is - do you accept that the words in themselves do not oblige a subcontractor to have an enterprise agreement, certified enterprise agreement with the union?---I think if you look at those words, I think it makes it clear to the parties, as it would have made it clear to Powercor, they need an agreement.
PN817
Well, why didn't it say that, Mr Mighell? You are responsible for this document. If you had wanted to say, every contractor who works on this site shall have an enterprise agreement with the ETU, you could have said so, couldn't you?---It could have been expressed in those terms. It could have been expressed in others that has the same effect, and we believe it does.
PN818
I put it to you that the words you used in this document do not say that or have that effect?---No, I put it to you, you are wrong. Otherwise your client would not have gone cap in hand to us trying to get an agreement.
PN819
That is the reason why you say these words require them to have an agreement?---I say these words require them to have an agreement, because I understand it was a party to the negotiations. I have also seen your client come to us, saying they want an agreement.
PN820
And they negotiated an agreement, didn't they?---No.
PN821
Well, Mr Mooney certainly negotiated an agreement with my client?---No, Mooney never - he gave them drafts, and he confirmed that they were drafts, and instructed your client to contact me, which they didn't do. They negotiated nothing.
PN822
Now, just while we are on this topic of words meaning what they say. The memorandum of understanding, P6, that does appear to involve Siemens directly: is that your understanding of the situation?---Yes.
**** DEAN MIGHELL XXN MR O'GRADY
PN823
I put it to you once again, other than a few expressions of intent appearing in the middle paragraph of clause 6, there is nothing about contractors having a certified agreement with the ETU, is there?---No, I think very much there is. Again, if the conditions were - - -
PN824
Point out to me, where do you say there are words that say, if you are a contractor you must have an agreement with the ETU?---Thanks for interrupting my answer again, but I will continue. I think there is. I think if you - the commitments are there from the parties. Again, if the Commission was in any doubt about the intent of Siemens, then the Commission could have Siemens attend the Commission and give evidence. I am very clear in the last dot point under 4, that it means that upon signing of this MAU, it goes on to say that the subcontractors should also go on and have appropriate agreements with wages, allowances, amenities, health and safety, first aid, and whole range of things into those agreements. I would have thought that is pretty clear, that they require them.
PN825
THE COMMISSIONER: Which paragraph?---The last dot point of 4, Commissioner.
PN826
Now, we are talking about P4?---We are talking about P6.
PN827
P6, sorry?---Under commitments. And it has just been my view that 4 is pretty clear. It says that the subcontractors will require comprehensive agreements.
PN828
MR O'GRADY: Well, it does not say anywhere, I put it to you, that no subcontractor will work on this site unless they have an enterprise agreement with the ETU?---Yes, but that is certainly the intent of the parties.
PN829
THE COMMISSIONER: Mr Mighell, going back to P4 and section 3, the reference is to industrial instruments?---Yes.
**** DEAN MIGHELL XXN MR O'GRADY
PN830
And this is a paragraph which was negotiated with Siemens, on the face of it. Is it your evidence that industrial instruments were solely confined to certified agreement?---Absolutely. Absolutely, and in the scope and application of P4 in 3, it says that if a subcontractor already commenced work on the project prior to the making of this agreement, the unions party must not unreasonably withhold their consent to certifying. There has always been the emphasis on certification. If it isn't explicit enough in other sections of it, I think you wouldn't just have that you are going to certify agreements that apply to subcontractors already existing and not certify them to others. It is absolutely always been the intent of Siemens and the unions to ensure that the agreements are certified. And in fact Siemens was insistent on it, to give them the stability of making sure that no-one changed tack and came up with protected action to take anything else. And we are very happy with that, and consented to that.
PN831
MR O'GRADY: Mr Mighell, the clause that you are talking about does use two different terms, doesn't it? It uses industrial instruments, on the one hand, and it refers to certification of agreements, on the other, in the paragraph you have referred to?---Yes.
PN832
I put it to you that one of the reasons why the parties used different terms, is that they intended them to have a different meaning. That industrial instruments was intended to be broader than certified agreements?---No, I disagree with that.
PN833
I put it to you, that if your construction is right, then what the parties would have done is they would not have used the words, industrial instruments, at all: they would have simply referred to certified agreements throughout?---Well, I don't think an industrial instrument precludes a certified agreement. And if you look at P6, under scope and application, which is the overriding overarching agreement between Siemens and ourselves, the bottom paragraph of that, Commissioner, clearly says:
PN834
The unions party to this agreement must not unreasonably withhold their consent to certifying the terms of this agreement.
**** DEAN MIGHELL XXN MR O'GRADY
PN835
And the emphasis is on certification, in either agreement you want to refer to.
PN836
I accept, Mr Mighell, that industrial instrument includes certified agreement. All I am putting to you is it is a broader term. Do you accept that? That an industrial instrument is broader than a certified agreement?---I accept it may be, but - - -
PN837
Do you accept that an industrial instrument extends to a memorandum of understanding?---Not in this instance. It was never the intent that industrial instrument be anything other than a certified agreement.
PN838
Please listen to my question, Mr Mighell. Do you accept that the word industrial instrument is capable of referring to a memorandum of understanding?---Not in the context of this agreement, but in a general sense, of course it does.
PN839
And do you accept that if the parties had wanted to in either P4 or P6, confine the types of agreements that were being talked about to certified agreements, they could have done so in clear and simple language?---Well, all agreements are a party, Mr O'Grady, to some negotiation input from a range of people, and this one was no exception. My view is that it is very clear that the emphasis on certified agreements there, it is my evidence under oath that that has always been the intent of the parties. So I am in no confusion about that.
PN840
All I am putting to you, Mr Mighell, is that is not the words that the parties have used?---Well, that they are not consistent with the words?
PN841
No?---That is right.
PN842
The parties have not described their obligations in terms that require people to enter into a certified agreement, have they?---Well, I think they have, and I think it is clear in both agreements that they have.
**** DEAN MIGHELL XXN MR O'GRADY
PN843
Now, Mr Mooney was not of the view that there had to be a certified agreement, was he?---Mr Mooney was of the view that Powercor prior to proceeding anywhere should make sure they talk to me.
PN844
Please listen to my question, Mr Mighell. Mr Mooney was not of the view that Powercor had to have a certified agreement to come onto that site, was he?---Well, I don't know for sure exactly about Mr Mooney's views, but he negotiated an MAU. He was happy to proceed with an MAU with Powercor, subject to, subject to talking to myself.
PN845
And the purpose of the MAU was to obviate or avoid the need to enter into the model certified agreement, wasn't it?---I don't believe so.
PN846
Well, what was the purpose of the MAU?---Peter Mooney was probably trying to lock down wages and conditions for Powercor employees.
PN847
Do you know that for sure, or are you just guessing?---Well, it would be my guess.
PN848
I put it to you that at no stage did Mr Mooney say to people from my client that they required to have a certified agreement before they could perform work on the BassLink site?---Well, whether Mr Mooney expressly said that or not, he made sure - many times he said to Mr Minster, make sure you call Mr Mighell and have a conversation about what you do need.
PN849
We understand that, Mr Mighell, and you have said it about five times, but the evidence of Mr Minster is that at no stage Mr Mooney ever told him that he needed to have a certified agreement to come onto the site. You don't dispute that, do you?---I don't know that.
PN850
Now, Mr Mooney also told Mr Minster that there was a connection between your refusal to sign the memorandum of understanding and the broader enterprise agreement negotiations between Powercor and the ETU: that is the case, is it not?---I don't know what Mr Mooney said to Mr Minster.
**** DEAN MIGHELL XXN MR O'GRADY
PN851
So you haven't asked him?---I asked Peter Mooney what he spoke to Mr Minster about, and he said he had spoken to him about doing an MAU. That he thought it would cover the employment conditions of people on the site in general terms, but he always knew that I negotiated the Siemens agreement, and he wanted to make sure that Ken had spoken to me. And that is about the extent of the conversation I have had with Mr Mooney about this.
PN852
Mr Arnett also saw that there was a link between the refusal of the ETU to enter into the MAU and the broader EBA negotiations?---Well, there is no link.
PN853
Well, Mr Arnett thought there was, didn't he?---No, I think Mr Arnett again directed Mr Minster to clarify that with me. Mr Arnett - and I think it has all been accepted - did not have any authority about the BassLink agreement.
PN854
Authority to one side, Mr Arnett told Mr Minster that there was a link between the BassLink project and the EBA negotiations, didn't he? Or don't you know?---No, I don't know that.
PN855
Now, you gave some evidence that organisers work as directed by you, but they have autonomy on many issues. That was, as I understand, the thrust of your earlier evidence. Is that a fair description of it?---Well, yes, they work as directed by me, but, you know, there is a lot of them, and they will do lots of things each day without talking to me about them.
PN856
It would have been possible, I put it to you, for Mr Mooney to have forwarded a copy of the MAU that he negotiated with Powercor to you for you to have a look at, and assess whether or not it was an appropriate instrument to regulate the BassLink?---He never did.
PN857
But he could have done that, couldn't he?---He certainly could have.
**** DEAN MIGHELL XXN MR O'GRADY
PN858
But there was no requirement, I put it to you, in order to get an agreement that was site specific up between Powercor and the ETU regarding the BassLink site for anybody from Powercor to ring you up and speak to you?---Sorry, I missed the first bit of that?
PN859
There was no requirement - if Mr Mooney could have forwarded the MAU to you, and you could have had a look at it and say, I am not happy about this bit, or it has going to have to be certified, or we are going have to change this or that, I put it to you there was no requirement, necessary requirement for anybody to ring you up and speak to you. You could have sorted that out within the union. Mr Mooney could have acted?---No, no, there was a necessary requirement. In fact, your client was asked to do exactly that.
PN860
But I put it to you that that was a requirement imposed by the ETU. You could have easily sorted out what terms would apply without Mr Minster or anybody ringing you up and having a chat?---Well, look, in an ideal world I would be very happy to negotiate with my officials as to what agreements applied to Powercor, but I think Powercor would have something to say about the outcome.
PN861
So, do you accept my proposition, or not?---No, I think your proposition is ridiculous.
PN862
So it would not have been open for Mr Mooney to send you the draft 3 of the MAO and say, you know, Dear Dean, please have a look at this. This covers off all the bases when you remember the other terms and conditions that Powercor pays its employees?---Could he have done it? Yes, he could have done it. He didn't do it. It would have thought that he directed Powercor to have that discussion.
**** DEAN MIGHELL XXN MR O'GRADY
PN863
I put it to you, the reason why he directed Powercor to have that discussion is because you wanted to ventilate broader EBA issues with Powercor as part of a quid pro quo for letting them onto the BassLink site?---Well, Commissioner, if ever there was a wild stab in the dark guess at what someone may have said, I think I have just heard it. I reject that. That is just ridiculous. Peter Mooney knew full well that I negotiated the Siemens BassLink agreement and took a stake in that. And commonsense would have prevailed that he had ensured that the very first agreement that he had done with any subcontractor, be it Powercor or anyone, met the requirements of the agreement that I negotiated.
PN864
If it is a stab in the dark, why did Mr Mooney say to the people from Powercor that there was a link between the broader EBA negotiations and BassLink?---Well, he may have had a perception there was. I don't know.
PN865
And if it is a stab in the dark, why did Mr Arnett say to the people at Powercor that there was a link between the BassLink project and the broader EBA negotiations?---Well, I don't know that Mr Arnett said that.
PN866
You can't dispute it, can you?---Well, I don't believe he had any authority to say that, or any reason to say that.
PN867
Well, he is not here to explain what he said, is he, Mr Mighell?---No, he is not, but the authorised officer of the union is.
PN868
I have no further questions.
PN869
PN870
THE COMMISSIONER: Well, that completes the witness evidence. Does either party require an adjournment of perhaps 30 minutes to prepare its final submissions?
PN871
MR O'GRADY: Not from our point of view, Commissioner.
PN872
THE COMMISSIONER: You are ready to go straightaway, Mr O'Grady? I am happy to give you 30 minutes when Mr O'Grady finishes, Mr Mighell, if you wish?
PN873
MR MIGHELL: No, that is fine Commissioner. I am happy to go.
PN874
THE COMMISSIONER: Good. Mr O'Grady, do you want to go first?
PN875
MR O'GRADY: Thank you, Commissioner. Perhaps it might assist, if I hand up a draft outline of submissions. This has been prepared without the benefit of the evidence, obviously, but it sets out, I suppose, the key ingredients of our position. To the extent that it refers to the evidence, in my submission, the evidence has been borne out before you.
PN876
Paragraph 1, I have simply set out section 127. Paragraph 2, I have set out section 4. If I could simply deal with those sections at the outset. It is clear, in my submission, from the words used in both of those provisions that they are extremely broad provisions. With respect to section 127, the first observation I would make is that the test for an order is whether or not it appears to the Commission. So it is a question of the Commission's perception, as opposed to any ultimate finding based upon - beyond a certain standard, if you like, that industrial action is happening, or is threatened, or is pending or probable.
PN877
Now, in my submission, given Mr Mighell's evidence, there is no doubt that there is industrial action happening, threatened, impending or probably. Because Mr Mighell has made it very clear that should my client go onto this site, there would be industrial disputation. That was his evidence. And in my submission, that first limb is therefore made out. It is not contested between the parties that this - well, if one takes Mr Mighell's evidence, this industrial disputation is directly and inextricably linked to the negotiation, or proposed negotiation of an agreement under Division 2 of Part XIB. Because Mr Mighell has said, that is the key. If we have an agreement that is certified in the terms of this model agreement, we can go onto the site. There will not be a problem. But because you don't have that agreement, you can't.
PN878
Now, the mechanism in the Act, of course, for dealing with the tension between the breadth of section 127 and the need for parties to negotiate a certified agreement, is of course protected industrial action. And section 170MT that provides in effect that section 127 does not apply to protected industrial action. But there is no suggestion that this is protected industrial action. Nor is there any suggestion that there is even a bargaining period in place with respect to this site specific agreement.
PN879
So if one was to accept Mr Mighell's evidence in its entirety, and accept his assertion that notwithstanding what Mr Mooney understood was the case, and notwithstanding what Mr Arnett understood the case that there was a link between not being able to go onto the BassLink site and the broader EBA negotiations. The pre-requisites for a section 127 are made out, because Mr Mighell has said, we want to negotiate a site specific agreement with you, and if we don't succeed with that, we are threatening industrial action, because there will be industrial disputation if you come onto the site without such an agreement.
PN880
THE COMMISSIONER: That is industrial disputation involving a union, or unions with Siemens?
PN881
MR O'GRADY: Well, he did not confine himself in those terms, in my respectful submission, Commissioner. And there has never been any suggestion that from the ETUs point of view, it is all right for my client's employees to come onto the BassLink site. If Mr Mighell wanted to say that, if Mr Mighell wanted to say, look, we have got a problem with Siemens if you come onto the site without the model agreement in place, and that is going to cause them some grief, but we understand that as against you guys, we can't do anything, because we haven't got a bargaining period in place, and you are welcome to come onto site.
PN882
He could have said that very easily. Throughout this whole process, if Mr Mighell was fair dinkum in saying there is no industrial action happening, or threatened, or probable, he could have got up there and said from the ETUs point of view, we are more than happy for Powercor to go onto site to do this work. If he had said that yesterday, we would not be here today.
PN883
THE COMMISSIONER: Did Mr Mighell say in relation to Siemens, there would be industrial action? I thought he said there would be industrial disputation. Now, an industrial dispute does not necessarily involve industrial action. It can be that the ETU then says to Siemens, we have a dispute with you because you have breached the terms of your agreement with us regarding the work on the BassLink project. That dispute could find its way into this Commission as a breach of an agreement. It could find its way through a disputes procedure to try and resolve the matter.
PN884
Did Mr Mighell actually accept that there was going to be stoppages of work, or things of that nature?
PN885
MR O'GRADY: I don't think he said it in those terms. But, in my submission - - -
PN886
THE COMMISSIONER: But he did say, I know there would be difficulties between Siemens and at least the ETU.
PN887
MR O'GRADY: And, in my submission, the Commission could when viewing the totality of Mr Mighell's evidence, and he is talking about industrial harmony, and the fact that he has not said, or disavowed any bans - if Mr Mighell had said, look, there might be an industrial dispute, and we might have to file a section 99 and bring Siemens in here to have a talk to them about it, but we would not impose any bans, or do anything that would in any way impede our members from working on this site, then the Commission, of course, could proceed on that basis.
PN888
But that is not Mr Mighell's evidence. Mr Mighell spent a lot of time talking about the need for the certified agreement to ensure industrial harmony on site. And in my submission it is overwhelming - the evidence is overwhelming that the Commission should find - - -
[11.20am]
PN889
THE COMMISSIONER: I am not sure it is overwhelming, Mr O'Grady, but - - -
PN890
MR O'GRADY: Well - - -
PN891
THE COMMISSIONER: - - - I hear what you are saying.
PN892
MR O'GRADY: Commissioner, all I can really say is that if one was to look at this in a sense, if you like, the real world of what is going to happen on site and ask the question what would happen if my client without an MOU walked on to site and say, is there likely to be any impediment to the performance of work in the normal way. The answer to that must be, well, pretty bloody likely.
PN893
THE COMMISSIONER: More likely than not perhaps, Mr O'Grady.
PN894
MR O'GRADY: More likely than not and that is all I need to satisfy the Commission on. Commissioner, you will see the other provisions in section 127, I will come to later, but they of course deal with the fact that you have a discretion plus those elements are made out. But my core submission at this stage, Commissioner is that the jurisdictional pre-requisites, if you like, to a section 127 order are made out, even on Mr Mighell's version of events. If you accept Powercor's evidence and accept what Mr Mooney and Mr Arnett apparently have said to the people from Powercor, then that is even more so the case.
PN895
With respect to section 4, the main reason for highlighting parts of section 4 is of course to focus on the breadth of that provision. It really is a provision that is designed to encompass anything that might impede the performance of work. And in my submission it doesn't make any difference for the purposes of section 4 if there is an additional step, if you like, inserted in the process. Section 4 is not confined to situations where you say, if you do X, I will strike. Section 4 is broad enough to encompass a situation of, well, I want you to enter into a model agreement or a memorandum of understanding and if you don't do that then your failure to do that is going to cause industrial action to be taken.
PN896
You can't play those sorts of strategies, in my respectful submission, with a provision that is as broadly expressed and we would say deliberately expressed as section 4. Section 3 - sorry, paragraph 3 also refers to section 493 and that simply deals with the Victorian situation and I don't think there is any issue with respect to that. In paragraph 4 of the submission I have simply referred to the oft-sighted passage of Vice President Ross in Patrick Stevedores v MUA where the pre-requisite is set out and for the reasons that I have already tried to address, Commissioner, those jurisdictional pre-requisites are made out.
PN897
In paragraph 6 I set out what was our understanding of the situation and in my submission that situation has been borne out by the evidence that has been adduced to the Commission. And the only slant on it that might be put on it in the light of Mr Mighell's evidence is that if you were to accept that evidence, and in so doing not give any weight to what Mr Arnett and Mr Mooney have told the people from Powercor, that sub paragraph (b) of paragraph 6 - well, paragraphs (a) and (b) of paragraph 6 should be referring to the model agreement and not the MOU, but it doesn't really change anything from our position, with respect.
PN898
THE COMMISSIONER: Mr O'Grady, in relation to paragraph - or section 4 of your submission and the extract from Vice President Ross' decision, it talks about in sub section (3) the quote
PN899
The application is brought by a person who is likely to be directly affected by the industrial action.
PN900
MR O'GRADY: Yes.
PN901
THE COMMISSIONER: Mr Mighell referred to the possibility of industrial disputation involving Siemens and the ETU. How will that directly affect your client, Powercor?
PN902
MR O'GRADY: Well, it will do so in this way. If the gravamen of the dispute with Siemens is my client coming on to the site then it directly affects my client's capacity to undertake its functions pursuant to the contract. Directly affected is not confined, as I understand the authorities, Commissioner, to a situation where the industrial action is taken against you the employer.
PN903
THE COMMISSIONER: Yes.
PN904
MR O'GRADY: It extends to a situation where you are directly affected by that industrial action as opposed to somebody down the track being incidentally affected. And let us say Mr Mighell said, well, to Siemens, look, if you allow Powercor on to the site we will walk off the job and impose a 24 hour strike, that has got to have a direct affect on - - -
PN905
THE COMMISSIONER: And the resolution of the dispute could be, well, you keep Powercor off and we will go back to work.
PN906
MR O'GRADY: Yes.
PN907
THE COMMISSIONER: Yes, okay.
PN908
MR O'GRADY: Yes, that is the way we would put it, Commissioner. With respect to paragraph 6, as I say, it is couched in terms that reflect the evidence that was referred to in our application, but in my submission, paragraph 6 is also equally capable of adaptation to the scenario that Mr Mighell put before the Commission. And either way there is an overwhelming case, we would submit, for the making of an order. There is no dispute that this work is covered by a certified agreement and there is no dispute of course, Commissioner, that we have a certified agreement with the ETU.
PN909
This is not a case where some employer who has no form of industrial regulation trys to come on to site and says, we don't have to enter into a certified agreement. We have got an existing enforceable certified agreement that has effect under the Act. We haven't entered into the model agreement and you have heard the reasons why. A lot of it doesn't apply to us, but we are happy to enter into an enforceable industrial instrument that meets its relevant terms.
PN910
THE COMMISSIONER: Yes.
PN911
MR O'GRADY: And yet we have been confronted with the union saying, well, we are not prepared to sign it. The point is made in paragraph 9, obviously, if you were to find that there was an industrial dispute on this issue, well, you don't need to have a formal dispute finding for that to be made and Commissioner Whelan said that in the Flight Engineers case. I have made the point in paragraph 10 that deals with your observations on directly affected, Commissioner. I don't know whether it has been put that the CEPU has no role in this.
PN912
We were unaware how the CEPU were going to respond to the application when we filed it but it seems pretty clear from Mr Mighell's evidence that, if we were to enter into the certified agreement he wants us to enter into, we would be allowed on site. So there can be no doubt, in my submission, that the CEPU are taking or encouraging or procuring the action that we complain about. And in those circumstances the passages in Kilpatrick Green probably don't have a lot of relevance other than the fact that we would say, absent.
PN913
Absent some indication from the union that it has no difficulty with our employees coming on to the site. They should be held to have engaged the industrial action. And I have also referred to the Transfield decision, which I might provide a copy of to the Commission, where a similar point is made. Turning to, what in my submission, is the real issue of discretion, in my submission, as a matter of discretion, these orders should issue. Commissioner, you have heard evidence from Mr Ian Turner of the losses that will flow if we are not able to do this work this weekend and they are not insignificant.
PN914
And this is not a time imperative that we have made up or whatever. There is a generator that is not working that enables us to get rid of two additional parts of this job at this point in time. His evidence is that there is no guarantee that there is going to be a similar stoppage in the near future and there is no evidence to contradict that. And in my submission, that is a powerful matter in favour of the making of the orders, perhaps orders of shorter duration than we have sought, but nonetheless powerful material in favour of making the orders.
PN915
There is also another discretionary factor which is that my client has tried to resolve its issues with the ETU in that we have, on the one hand, entered into these negotiations with Mr Mooney over the MOU and said, we are happy to pay the - if my client came on to the site and said, look, we don't agree with site agreements, we are just going to pay them on their normal EB arrangements, it would still be unprotected industrial action; it would still be amenable to a 127. But where my clients come on to the site and said, look, we are happy to address your concerns with respect to the site conditions and we are happy to pay those - and there is no quibbling about that.
PN916
And we haven't heard any evidence, Commissioner, about anything in the MOU that is unacceptable. Mr Mighell hasn't said, well, my real concern here is that Peter Mooney has said X in paragraph 5 of the MOU and I don't think that is good enough. What he said is, MOU is unacceptable because I insist that there is an EB that has been discussed. So, firstly, we have done that and the second thing we have done, Commissioner, is we have said all right, well, if it really is a concern about people being signed up on exhibit P4, the model agreement, we will get one of our sub contractors to come on to the site and they will sign up on that agreement.
PN917
So if you need to have a certified agreement that is enforceable under the Act for people to work on to the site one of our contractors will do the work and that has been rebuffed as well. So, in my submission, as a matter of discretion those matters in itself are powerful factors in favour of an order. Putting to one side what, in my submission, is an inference that the Commission should draw, that Mr Mooney and Mr Arnett got it right, that this is not just merely a coincidence, that there is this broader negotiation going on out there and the problem with the BassLink site, that there is some sort of nexus between the two.
PN918
Now, clearly if you were to find that, in my submission, there would be an overwhelming imperative to make an order, but in my submission, you don't have to notwithstanding the fact that the evidence supports it. On a broader level, Commissioner, the fact is that the Act provides for a mechanism for taking of protected industrial action with respect to the negotiation of certified agreements. And it is not hard, you have got to initiate a bargaining period and you have got to provide the relevant notices. If the union wanted to put pressure on us to enter into such an agreement, like the model agreement before we came on to the site, they could have gone down that path. They haven't gone down that path.
PN919
And the passages that I have set out in the Esso case which appears at paragraph 18 of Senior Deputy Polities, makes it pretty clear that when you fall outside the scheme of the Act and take industrial action, then that is a strong discretionary factor in the favour of a making of a 127 order. Now, Commissioner, I don't intend to go over the evidence; you have seen it all. We have got contemporaneous notes of conversations and we have got the oral evidence of the witnesses called by the applicant which, in my submission, was not in any meaningful way impeached when they were cross-examined.
PN920
They presented as witnesses of truth and in those circumstances, in my submission, the order should issue, if the Commission pleases. Sorry, just bear with me. I am reminded, Commissioner, that one other factor you might take into account in exercising your discretion is that - let us accept that Mr Mighell is right and Mr Mooney was acting beyond the scope of his authority, which as I understand it, is part of what he is saying, we were entitled, in my submission, to act in good faith on what Mr Mooney told us.
PN921
And Mr Mooney on the evidence told us we didn't need to have a certified agreement to come on to this site. What we had to do was we had to have a MOU in terms that he substantially drafted. And in my submission, even if Mr Mighell is right and Mr Mooney didn't have authority to say that, and at the end of the day the buck stops with him, we should be penalised for that, with respect. If the Commission pleases.
PN922
THE COMMISSIONER: Thank you, Mr O'Grady. Mr Mighell, I am happy to adjourn until midday if it is any help to you.
PN923
MR MIGHELL: No, it is all right, Commissioner. Commissioner, look, you know, there has certainly been a fair bit of froth and bubble from the side of the applicant trying to convince you about an industrial dispute that doesn't exist. You know, they want you to support them acting in good faith on the advice of Mr Mooney who said they don't need a certified agreement. They really want you to do that but they don't want you to act on the fact that Mr Mooney told them to contact the state secretary because they just don't want to know about that.
PN924
In fact the evidence from Mr Minster, Commissioner, was on 22 September he was told yet again by Mr Mooney, contact the state secretary and in his own evidence his organisation took a view not to try and prevent or settle this dispute. They took a view not to talk to me at all, not once. They had dispute procedures in a certified agreement that they have, that they have told us and told this Commission that they have got, did ever once, when they knew about this problem on 22 September, do anything in that disputes procedure to try and resolve this issue, they did nothing.
PN925
They knew about the problem and they did absolutely nothing. Commissioner, this union has a project agreement in place with Siemens to the extent that it requires sub contractors to have a certified agreement in place with the union prior to working on site. Now, I know that because I negotiated it, and if the Commission is in any doubt about that, please talk to Siemens. Powercor aren't aware of it, they were not a party to it and they want to pretend it doesn't exist, but it does exist.
PN926
THE COMMISSIONER: I cannot talk to anybody once the evidence is closed in this matter, Mr Mighell.
PN927
MR MIGHELL: Yes, well, then the uncontested evidence is from the union - is the only party to that agreement, certainly not Powercor and we say absolutely that is the intent. It is spelt out quite clearly they need an agreement and they talk about not having me raise objections to the content of the agreement. I am very happy to go into that if they want to about the deficiencies I see in that MOU. We want a certified agreement. When the unions enter into project agreements, significant things for the State of Victoria, we expect those agreements to be honoured and the people we enter them into expect us to honour those agreements.
PN928
What Powercor wants to do is say to the Commission, we found out there was a problem on 22 September, did nothing to resolve it at all, didn't come to the Commission, didn't contact the secretary, didn't take the advice of the union negotiators at the time, but now it has come to D-Day or crunch time, or they are under the pump with Siemens, they have got to be seen to be doing something - want a 127 order against the union. Want a 127 order that will place us in direct conflict with their client and this union and prejudice this project.
PN929
Commissioner, I never once said that there will be industrial action on that project. I have made an undertaking and commitment on behalf of my organisation to prevent that. Please don't issue an order against this union that would put me and my organisation in conflict with someone I have entered into an agreement in good faith. Now, well, I said we would certainly be in dispute with Siemens. If Powercor does work on that that is not in accordance with the agreement we have ..... reach, yes, we are in dispute with Siemens.
PN930
And you are absolutely right, Commissioner, that would mean that we have a disputes procedure that we need in place. Now, I have tried to contact Siemens, unsuccessfully now for two days, and it is critical because if this is to go ahead and Powercor are going to ram their way through, seek an order from the Commission that would prejudice the industrial harmony on this job, then I really do have a concern about that and so too should the Commission.
PN931
It isn't a matter about strikes because they have never been threatened. No-one has put any evidence, Commissioner, before you, there is any bans, limitations, strikes or that the world as we know is going to come to an end if Powercor comes on site. All we have said is we have an agreement. They don't recognise it or they don't want to be a party to it. They want to be a party to this, but not a party to that, and they have got a ban as far as the organisation goes in talking to the state secretary of the union.
PN932
Their problems, Commissioner, they have created and they want you to fix for them. I wouldn't be surprised if they have contractual problems with Siemens and this is all a little bit of a stunt to try and get them off the hook about not being able to reach contractual requirements. I don't know what they are up to but I do know this, that there is no dispute with Powercor in respect to the BassLink agreement, other than I want them to comply with the project agreement in place. That is all I want. I don't want an MOU, I want a certified agreement.
PN933
I want a certified agreement that contain mirror clauses to the BassLink agreement and I want that from everyone that works on it. Now, they put up sub contractors - - -
PN934
THE COMMISSIONER: That is fine, Mr Mighell, but unfortunately at least one officer of your union advised the employer that they didn't need an EBA and as Mr O'Grady has said, although that officer also said to Powercor, you should contact the secretary of the union, Mr Mighell, that officer also, in the normal way of any organisation operating, could have sent you a memo. And I would have expected he would have sent you a memo saying I have - you know, he is autonomous but he is responsible to you and he knows very well he is responsible to you.
PN935
He could have sent you a memo and said, this is the progress of the negotiations with Powercor.
PN936
MR MIGHELL: Yes.
PN937
THE COMMISSIONER: I have got this memorandum of understanding, it mirrors the relevant requirements of the model agreement and what are your thoughts. And you could have said to Mr Mooney at the time, this is totally unacceptable, just tell them I need an EBA or nothing.
PN938
MR MIGHELL: Yes, that is fine, he didn't do that.
PN939
THE COMMISSIONER: No, he didn't do that.
PN940
MR MIGHELL: But he did instruct them to call me. He said, look, there could be problems here, you ought to talk to the state secretary.
PN941
THE COMMISSIONER: Yes, but that is in the context, Mr Mighell, of other negotiations that are going on and it may well have been better if Mr Minster did contact you because the evidence that has been given on these other matters, of the linkage between the EBA negotiations undertaken with Powercor - if Mr Minster had have contacted you you may well have said something to him to either disabuse him of any linkage or confirm it.
PN942
MR MIGHELL: Or in fact even say, no, Mr Minster, you are going to need a proper certified agreement down there.
PN943
THE COMMISSIONER: Yes, yes, agree.
PN944
MR MIGHELL: And we could have prevented this but Powercor took no steps to prevent this.
PN945
THE COMMISSIONER: Well, Mr Mighell, there is responsibility on both sides in that matter.
PN946
MR MIGHELL: But they are seeking - making an application for a very serious matter to get orders issued against a union for an industrial dispute that isn't there and it isn't an industrial dispute - the fact that I didn't contact Powercor, they were instructed to contact me. They were instructed to resolve an issue. The fact that we didn't seek to resolve the issue and I didn't contact them surely doesn't give rise to a 127. I have got an agreement there with Siemens and I don't think that is in dispute and I don't think that the Commission doesn't accept that contractors require to have a certified agreement in the terms that would mirror the Powercor agreement because it makes sense, because that is the way projects are done.
PN947
Because if they don't come on with a mirror agreement, that does give rise to industrial disputes, and that is common sense. So to issue an order against us to prejudice the union to create different terms and conditions for Powercor employees to those on that site, will give rise to another industrial dispute and we will be back in the Commission with Siemens and it prejudices the whole project. Those agreements are entered into and are taken seriously. This 127 order if it is granted would put the union in a difficult position of breaching its agreement with Siemens and putting Siemens in a difficult position of breaching its commitments to us.
PN948
And it shouldn't do that, the Commission should not entertain that. This should simply be a matter of Powercor sitting down and negotiating a certified agreement that mirrors the terms of the BassLink agreement with the union and doing the right thing.
PN949
THE COMMISSIONER: And Powercor has already probably said to the union - and I think it has been said in these proceedings, one way or another - that if it needs to have an EBA it will have an EBA.
PN950
MR MIGHELL: Well, then I am very happy to go down that process of doing it.
PN951
THE COMMISSIONER: But in the meantime it has a problem this weekend which will be prejudicial to the company and the project if certain work is not undertaken involving less than 10 individuals.
PN952
MR MIGHELL: Well, but that is fine, but doesn't say - whether there is work urgent this weekend or not, there is a project agreement that they know about and we know about and we are a party to and we are going to stand by that project agreement. We are going to stand by that. If they don't want to comply with it, that is fine, they certainly know about it now. It may be prejudicial to Powercor, maybe Powercor could have resolve things better had it not found itself in this situation.
PN953
Powercor can't come here with clean hands saying, oh, look, Commissioner, this is terrible, this weekend is a crisis when on 22 September it knew it had a problem and chose not to deal with it. It chose not to deal with it.
PN954
THE COMMISSIONER: No, I don't believe that is right, Mr Mighell.
PN955
MR MIGHELL: Well, they could have contacted, Commissioner, that is right because that is the evidence of Mr Minster.
PN956
THE COMMISSIONER: They could have contacted you certainly but your proposition is that they knew they had a problem. The advice from your official at that time was, well, let us go down the track of doing a memorandum of understanding and if we can reach that, you haven't got a problem and they did exactly that.
PN957
MR MIGHELL: No, no, no, Commissioner, that is not what Mr Mooney said. That has never been the evidence lead here. Mr Mooney said, don't negotiate the MOU and you don't have a problem. Mr Mooney said, I am happy to negotiate the MOU but nothing is finalised, nothing - - -
PN958
THE COMMISSIONER: Yes, agreed.
PN959
MR MIGHELL: - - - until you talk to the secretary.
PN960
THE COMMISSIONER: Yes.
PN961
MR MIGHELL: So please don't draw that conclusion.
PN962
THE COMMISSIONER: No, I agree that Mr Mooney said, we should negotiate a memorandum of understanding but at all times understand that this has got to be signed off by the secretary and until that is done you haven't got a deal.
PN963
MR MIGHELL: That is right. That is right. So I don't think Mr Mooney could have been any more up front or clearer than he was. Now, if Powercor chose not to operate that - go down that road and now finds themself not compliant with the site requirements, well then, don't give them a 127 order to excuse them for not dealing with the matter. They had ample opportunity.
[11.45am]
PN964
THE COMMISSIONER: But one thing Mr Mooney didn't do, Mr Mighell, apart - he did certainly advise them about the need for your ticket at the end of the proceedings. But Mr Mooney, on the face of it, never, ever said to them, and neither did anybody else from the union until these proceedings, "You need an enterprise bargaining agreement certified before you are going to be compliant with the requirements of the BassLink agreement." Nobody ever said to the company that, did they?
PN965
MR MIGHELL: Well, I don't know whether - - -
PN966
THE COMMISSIONER: Until these proceedings.
PN967
MR MIGHELL: I don't know whether they did or didn't, but it doesn't appear at this stage that Mr Mooney specifically did say that, and I accept that. Mr Mooney said to them - knew enough about the problems on the project and knew enough that - he didn't negotiate the Siemens agreement. I did. He knew enough to tell them, "Make sure you ring them." They went away, and I doubt, Commissioner, and you have been around a long time in industrial relations, you have ever heard a company give you evidence, or submit evidence before a Commission to say they refused as a policy not to talk to somebody.
PN968
I mean, if that is the sort of behaviour the Commission is going to reward with a 127 order, well then, I don't know what is to become of us. I have a site agreement with BassLink and I intend absolutely to honour it. There is no dispute there. I expect the subcontractors to that project agreement to have a certified agreement in those terms as is the commitment, and the project is an important one. That is all they are asked for.
PN969
THE COMMISSIONER: And you argue, Mr Mighell, that the documents that have been entered into between the unions and the consortium require a certified agreement. Whereas, Mr O'Grady argues that they are broader than that.
PN970
MR MIGHELL: Well, that is fine for Mr O'Grady. He wasn't a party to those negotiations, and I think it is very - - -
PN971
THE COMMISSIONER: But Mr O'Grady looks at the words - - -
PN972
MR MIGHELL: Well, that is fine. Yes.
PN973
THE COMMISSIONER: - - - as I will look at the words.
PN974
MR MIGHELL: Yes.
PN975
THE COMMISSIONER: And they are at least ambiguous.
PN976
MR MIGHELL: Well, I think that there is a fundamental principle. If it is ambiguous the Commission should satisfy itself about the intent of the parties, and you can only do that by satisfying yourself about - you heard from me about my view. All you have to satisfy yourself with Siemens. Please don't accept Mr O'Grady's word on behalf of his bleeding client here about what the intent is in the agreement that he wasn't ever a party to, or that his client isn't a party to. Commissioner, you have got to satisfy yourself what Siemens' intent was, and I think that is critical to this.
PN977
THE COMMISSIONER: What the parties' intents were. Yes.
PN978
MR MIGHELL: What was the intent of Siemens and the unions when they sat down, and if you satisfy yourself there is no grounds whatsoever to issue an order against industrial action, because industrial action doesn't exist, you would be issuing a 127 order for a union complying with a site agreement it entered into for a major important Victorian project. That is the union's case here. You would be issuing us an order for doing the right thing, and that is an impossible situation to put the union in. Now, irrespective of Mooney said this, Arnett said that, Minster said this, that is the fundamentals, if the Commission pleases.
PN979
MR O'GRADY: Can I just make four points, or maybe three points in response, Commissioner? The first point is that it has been the law in this country since a case called Taylor v Johnson, which I think was decided in the '60s that the objective, as opposed to the subjective theory of contract prevails, and what that boils down to in essence is it doesn't matter what the subjective intention of the parties was when they entered into a contract, whether that be a certified agreement or a house sale for land. What matters is what words do they use and what, objectively speaking, do those words require them to do?
PN980
And the reason for that is very clear and it was reinforced by something that Mr Mighell said when he was at the Bar table. In negotiations parties are often at odds about what exactly they are hoping to achieve by the agreement, and at the end of the day, after a lot of squibbling and squabbling they pick up on a set of words that they may think allows them to do things that the other party doesn't allow them to do. That may have to be sorted in due course and the way in which that is sorted is you look at what those words are and what they mean.
PN981
Now, if you apply that theory to Exhibit P4 and P6 there is nothing in either of those documents that requires my client to have a certified agreement before it comes on to the site, and as Mr Mighell I think acknowledged, if the parties had have wanted to say that expressly they could have done so. They didn't. They used different language, and importantly they used different language whilst at the same time referring to the potential for the certification of some agreements. So it is not a case where they were unaware of certifying agreements. But they have used this other term, industrial instrument, which on any view of it extends beyond certified agreements, when talking about what parties will seek to achieve.
PN982
If I could simply ask you, Commissioner, when considering this matter to have a look at the words that we have talked about in clause 3 of P4 and the last bullet point of clause 4 in P6 and the middle last two paragraphs of clause 6 in P6, and you will see that there is no obligation. It may be that whilst Mr Mighell was hoping that the effect of these words would be that there would be an obligation, Siemens may not have had that, because one would have thought that if Mr Mighell's view of the world was shared by Siemens the parties would have said that, and they didn't.
PN983
The second point I would seek to make, Commissioner, is that if there is no industrial action, and no potential industrial action, an order that allows us to go on to site should not b a problem. You know, Mr Mighell seems to be having it a bit both ways, with respect. He seems to be saying, well, there is no industrial action. There is nothing threatened and there is no bans. But at the same time, if they come on site it is going to cause industrial disruption, and you shouldn't make an order that allows that to happen. Now, you can't have it - - -
PN984
MR MIGHELL: I didn't say that, Commissioner. That is simply untrue. I didn't say that there would be industrial action. I said there would an industrial dispute.
PN985
MR O'GRADY: The transcript will speak for what it says and you have heard what Mr Mighell said, and if I have got it wrong, I apologise. I wasn't trying to - - -
PN986
THE COMMISSIONER: I think Mr Mighell's version is more accurate than yours, Mr O'Grady.
PN987
MR O'GRADY: Well, I am happy with that, Commissioner. But my point is simply this. That if there is no potential industrial action then the order that we are seeking, perhaps of a shorter duration, really imposes no prejudice to the union we would say. If there is industrial disputation there are mechanisms for dealing with that, and the mechanisms for dealing with that do not necessarily include industrial action. So this is not a case, Commissioner, where by making an order you would be forcing the union to act in breach of the agreement as with Siemens, as was I think said by Mr Mighell in his submissions, because if Mr Mighell is not happy about the fact that we are coming on to site, one assumes that he will institute a dispute in the ordinary way and that matter can come before the Commission.
PN988
If there is a dispute about what these words mean in the agreement with Siemens - it is not a certified agreement we should acknowledge - but that could be ventilated in the Commission. There may be a certified agreement that the ETU has with Siemens that has a dispute resolution procedure that can lead to a binding arbitration under 170LW. None of that involves industrial action. None of that would be prejudiced by a 127 order made by the Commission in these proceedings. The last point I would seek to make, Commissioner, is this. If the sticking point is not allowing somebody on site who doesn't - who hasn't signed up to the model agreement, Energex or Enesty Energy has offered to sign up to the model agreement.
PN989
If that is the problem, that you are going to have people on site, some of whom aren't working pursuant to this agreement, Enesty Energy has offered to do that, and that offer has been rebuffed, and the only reason that has been put forward for that offer being rebuffed is that Powercor are the head contractor for Enesty Energy. Now, in my submission, that is not something that would preclude Enesty Energy from entering into this agreement, or from this agreement regulating the terms and conditions of its employees.
PN990
The fact that that is a sticking point in my submission corroborates the other submissions I put to you earlier about there being this other agenda with respect to Powercor and the broader EB negotiations, but that is sort of by the by. But in my submission, for the reasons that I have tried to explain, the order should issue, with respect, if the Commission pleases.
PN991
THE COMMISSIONER: Thank you, Mr O'Grady. Good. That completes the evidence and submissions in this matter. This matter is adjourned.
ADJOURNED INDEFINITELY [11.55am]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
KENNETH MINSTER, ON FORMER AFFIRMATION............PN455
EXAMINATION-IN-CHIEF BY MR O'GRADY PN456
EXHIBIT #P5 WITNESS STATEMENT BY MINSTER PN460
EXHIBIT #P6 DOCUMENT PN577
CROSS-EXAMINATION BY MR MIGHELL PN612
RE-EXAMINATION BY MR O'GRADY PN707
WITNESS WITHDREW PN711
NIGEL SCOTT TURNER, SWORN PN715
EXAMINATION-IN-CHIEF BY MR O'GRADY PN715
EXHIBIT #P7 MR TURNER'S WITNESS STATEMENT PN722
EXHIBIT #P8 PHOTOCOPY OF CARD ISSUED TO MR TURNER AFTER SIGNING AGREEMENT PN727
CROSS-EXAMINATION BY MR MIGHELL PN738
RE-EXAMINATION BY MR O'GRADY PN747
WITNESS WITHDREW PN753
DEAN MIGHELL, AFFIRMED PN761
CROSS-EXAMINATION BY MR O'GRADY PN766
WITNESS WITHDREW PN870
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