C2005/2656, Transcript of Proceedings [2005] AIRCTrans 1253 (6 June 2005)

TRANSCRIPT OF PROCEEDINGS

---


Workplace Relations Act 1996 11661-1

COMMISSIONER SIMMONDS

C2005/2656

SIEMENS LTD VAUGHAN CONSTRUCTIONS PTY LTD LEONARD ELECTRICS PTY LTD
AND
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
s.127(2) - Appln to stop or prevent industrial action
(C2005/2656)

MELBOURNE

4.02PM, MONDAY, 23 MAY 2005

Continued from 28/4/2005

PN276

MR R DALTON: I seek leave to appear in place of Mr Skein, I think, from the last time.

PN277

THE COMMISSIONER: The second time.

PN278

MR DALTON: Yes, that's right.

PN279

THE COMMISSIONER: Yes, thanks Mr Dalton.

PN280

MR H BORENSTEIN: Commissioner, I seek leave to appear on behalf of the CEPU.

PN281

THE COMMISSIONER: Yes, Mr Borenstein. Any objection? No objection? Leave is granted. Yes, Mr Dalton.

PN282

MR DALTON: Commissioner, this application has been put back on following conciliation that occurred last Friday in this Commission as constituted, as I understand it. An amended application was filed and served. I think initially in the early afternoon on Friday there were some dates changed in the document that was filed so it was resubmitted in the Commission and served on the union. My instructions are it was served by fax on the electrical division secretary at
3.45 pm, on the branch secretary shortly after that at 3.48 pm, and that is
Mr Coffey. Mr Coffey also received a copy of the application by hand at 3.57 pm and a copy was also hand delivered to Mr Mighell at the state office at 4.50 pm.

PN283

Commissioner, I summarise the position of the company as follows. It wants Corke employees to be able to come onto the site and perform electrical work. Corke has been delayed in coming onto site for approximately three weeks and Commissioner, I don't need to take you through the detail. I think most of that has been explained to you in conciliation last week.

PN284

MR BORENSTEIN: Well, I'm afraid my friend is going to have to take you through it in detail if he wants to put his case up.

PN285

MR DALTON: I am opening my application at this point in time so I'm just simply stating at this point that you are familiar with that background. There are approximately 10 employees who need to come onto the site. The type of work that they need to perform initially is to unpack boxes of equipment, to check that equipment and to perform some pre-assembly work for that equipment. That equipment is currently sitting on the docks and is scheduled to be delivered tomorrow morning. There is also some work that is urgently required to be performed by the Corke employees in the form of laying earthing mats in trenches that I think have already been dug. That's the work that is proposed for this week.

PN286

Commissioner, you would be aware that there was proposed a meeting perhaps held in the Commission between Corke representatives and representatives of the CEPU. I understand that Wednesday next week was the time that was suggested. Siemens would support that process. Obviously if that meeting could be held as soon as possible - if Wednesday is the earliest, then so be it. The issue is what should happen in the meantime and it's the position of the company that the work that I have just identified ought to be performed and that can be, of course, on a without prejudice basis. But Corke has been required to come onto the site since, I think, the 1st or 2nd of May, Monday 2 May.

PN287

Commissioner, you will recall on 29 April this section 127 application was before you and at that point in time the dispute with the ETU was manifested through some industrial action that was being taken by employees of Leonard Electrics. The position at that point was that there be a return to work and that there be some discussions held between representatives of Corke and the ETU, with the expectation that Corke was to commence work that following week. Certainly at that time the ETU was aware that Corke was the contractor that had won the tender to do the electrical and instrumentation work and there was a period of some 10 days, I think, from 2 May when Corke was first to come on, until 12 May when the first meeting was held between representatives of Corke and the ETU.

PN288

Unfortunately we see a situation where the ETU has not reached agreement on outstanding matters, whatever those matters might be, and has directed that the Corke employees not perform work. That is the situation that we are left with. Now, Siemens has allowed time for Corke and the ETU to sort out any issues outstanding but it seems apparent to Siemens at least that the ETU is not serious about resolving any issues and Wednesday will be the final and true test of that. In the meantime, the delays that Siemens has allowed simply can't be allowed to continue because it's run out of alternative work to arrange and this type of work has to be performed. Commissioner, we were hopeful that the ETU would have picked up the proposal that was put last Friday. Its rejection of that has forced us to press ahead with this application in the amended form and unless the ETU can confirm that it's prepared to accept the position that was put last Friday, then my instructions are to proceed with the application. If the Commission pleases.

PN289

THE COMMISSIONER: I think you have probably got to proceed but yes, that is right. Mr Borenstein has confirmed that you have to proceed.

PN290

MR BORENSTEIN: I think we should proceed.

PN291

THE COMMISSIONER: There is no - - -

PN292

MR DALTON: Well, he didn't stand up so I haven't heard anything on the record. Perhaps if he could do that.

PN293

MR BORENSTEIN: I think my learned friend should proceed.

PN294

MR DALTON: Commissioner, I call Mr Geoff Messenger.

<MR GEOFFREY ROBERT MESSENGER, SWORN [4.11PM]
<EXAMINATION-IN-CHIEF BY MR DALTON

PN295

MR DALTON: Thanks, Mr Messenger. I think you have already given evidence in this proceeding before but if you could state for the transcript record your full name and work address?---Geoffrey Robert Messenger (address supplied).

PN296

You are engaged by Siemens as the industrial relations consultant for this gas turbine project?---That's correct.

PN297

Perhaps if I could ask you to direct your mind to events that have occurred since this matter was before the Commission on 29 April 2005. Following conciliation in the Commission, did anything occur on 29 April?---On 29 April I spoke to Reg Corke, the principal of Corke Instrument Engineering. He was to try and arrange a meeting with the CPU or the ETU to move forward on the matter that is outstanding at the moment regarding the site agreement. But when I spoke Reg Corke on the Friday he said that they had spoken to Paul Coffey from the ETU and that matters had been taken out of Mr Coffey's hands and Mr Corke had to speak to Dean Mighell of the ETU.

PN298

When you say that, sorry, Mr Corke was saying this to you?---That's correct. That's the information Mr Corke had given me. Yes.

PN299

What happened then?---Well, Mr Corke had tried to talk to Mr Mighell. He was unavailable - - -

PN300

MR BORENSTEIN: Commissioner, the witness has got some documents in the witness box. If he's going to be reading from those perhaps I should know what they are?---Sorry. It's my diary notes.

PN301

MR DALTON: Perhaps we can close that at this point. Yes, you were
saying?---Yes. Okay. Mr Corke tried to contact Mr Mighell from the ETU on the Friday and I also believe - - -

PN302

How do you know that?---I'd spoken to Mr Corke and I had continuous conversations on trying to move this process forward.

PN303

THE COMMISSIONER: When you talk about the Friday, are you talking about the 29th?---I'm talking about the 29th, the day after the Commission proceedings.

PN304

Yes?---So, that was on Friday the 29th and I was also under the impression from talking to Mr Corke that Mr Kennedy, who's from NECA - - -

**** GEOFFREY ROBERT MESSENGER XN MR DALTON
PN305

MR BORENSTEIN: I object to impressions, Commissioner.

PN306

MR DALTON: Yes. You will need to explain to the Commission how you had that understanding or impression?---I'm sorry. Mr Corke advised me that
Mr Kennedy had also spoken or tried to speak to Mr Mighell to arrange a meeting.

PN307

Yes?---Now, they were unsuccessful on Friday the 29th and they tried again on Monday 2 May to contact Mr Mighell and I believe they were unsuccessful on the 2nd and on the 3rd they got hold of Mr Mighell and Mr Mighell was unavailable until, I think, Friday 6 May - and this is information that Mr Corke relayed to me because as I said I was speaking to him all the time.

PN308

Yes?---They were going to have a meeting on the 6th and then Mr Corke advised me that that meeting was cancelled until the 12th, right? So at that time I didn't think that there was a lot of problems with the enterprise agreement that we had put forward because the ETU had seen the agreement that we currently have onsite, which is with the CFMEU and the AMWU and Mr Mighell had seen the agreement, because I had had discussions with him on the agreement, the signing of the agreement with Siemens.

PN309

The agreement you're referring to, is that the site agreement?---That's the site agreement.

PN310

Just explain to the Commission how that site agreement came to be?---Mr Pat Quinlan, who is the HR manager for Siemens Power Generation in October, September October of last year got together with the building industry group and as Mr Quinlan has relayed to me, the CEPU were part of that group and part of negotiations and they put forward and came up with an acceptable agreement to all parties. And that was in September October of last year.

PN311

Yes, and when you say it was acceptable to all parties, how do you know
that?---Well, information relayed to me from Mr Quinlan, right?

PN312

Yes?---And subsequent to that, both the CFMEU and the AMWU have signed the agreement.

PN313

Has the ETU signed the agreement?---No. The ETU haven't but the plumbing division of the CEPU has.

PN314

Has the ETU division of the agreement indicated their position to Siemens about the site agreement?---Well, they've had nothing direct from the ETU saying that they weren't happy with the agreement, no.

**** GEOFFREY ROBERT MESSENGER XN MR DALTON
PN315

All right. Have you had electrical work done on the project since September last year?---We've had electrical work carried out by Leonards which initially - Leonard Electric - which initially came onsite to do the site infrastructure and has subsequently moved onto some of the main construction works.

PN316

Yes?---Now, my understanding is that the Leonards employees and the ETU were happy with the agreement.

PN317

When you say that is your understanding, what is the basis for that understanding?---Because we had been in the Commission on several occasions and the fact that the guys had been paid or remunerated as per the site agreement, there has never been anything brought up to say it's unsatisfactory.

PN318

When you say there's never been - - - ?---Sorry?

PN319

Has anyone from the ETU division of the CEPU raised any issues about the terms and conditions being paid to Leonards Electrics' employees when they have been onsite?---No.

PN320

What issues have been raised, if any?---The only thing that has been raised is about representation.

PN321

Yes?---The ETU are looking for representation on the site.

PN322

When was Corke due to come onto site?---2 May. Monday 2 May.

PN323

When was the ETU made aware of Corke being the successful tenderer for that electrical work?---That would have been in March, late March this year.

PN324

When you say it would have been, how do you know that?---I had discussions with Mr Mighell in his office and advised him that Corke were the successful tenderer for the electrical work.

PN325

Are you aware whether Mr Mighell knew of the site agreement?---Yes. Because the meeting I went to Mr Mighell to see him about the site agreement, I was trying to get the site agreement signed with Siemens, right, and he had a copy of the site agreement at the time.

PN326

When was that?---That was in late March.

**** GEOFFREY ROBERT MESSENGER XN MR DALTON
PN327

Right, okay?---But my understanding from the information I've received from
Mr Quinlan is that Mr Mighell has been aware of this since the beginning of the process, September October last year.

PN328

Back in the late March meeting, did you have a discussion with Mr Mighell about the site agreement?---Only to the fact that I wished the ETU or the CEPU to sign the agreement.

PN329

Did Mr Mighell say that he wouldn't sign it because it was unacceptable to him or anything?---No. He didn't mention any particular items that were unacceptable in the site agreement.

PN330

Did Corke come onto site in early May?---Corke have been onsite to get a little bit of induction work done but ostensibly no, they have done no real electrical work onsite.

PN331

When did they come on to do inductions?---They came on several times during early May and we had some issues as far as the inductions were concerned and I had spoken to several people about trying to get them ready to start for this week. The last instance of them coming onsite was last Friday and prior to Friday, because we knew we were having the electrical goods transferred onto site when we need the electrical people, on the Thursday we had spoken to the CFMEU stewards who are doing the inductions and - - -

PN332

Perhaps before you deal with that, I'm interested in early May at this stage. What work, if any, was done by Corke?---None onsite.

PN333

None onsite?---No.

PN334

You said that there was some inductions; were there inductions carried out in early May?---Yes. Sorry, the inductions had been done by Siemens for the safety side of the induction process.

PN335

All right?---There is two sides of the process. One is the safety side and the other side is the union side where FEDFA check.

PN336

So in early May, dealing with the first week of May, apart from the safety induction carried out by Siemens was there any work carried out by Corke?---No. There wasn't.

**** GEOFFREY ROBERT MESSENGER XN MR DALTON
PN337

Did Siemens require Corke to attend?---Well, we did want Corke to attend but what we were trying to do was to smooth the way after we had had discussions on the 28th and the 29th. We wanted the progress[sic] to go as quickly as possible and not sort of muddy the waters, for want of a better term. Because we couldn't' see any problems with the site agreement because of the previous discussions we had had.

PN338

Yes?---So we thought once Corke had had their discussions with the ETU, that that would smoothly go down the track. We didn't see any real hiccups there.

PN339

Was site representation still an issue at that point?---At that time Leonards - from the 29th, - a steward was coming on ad hoc because Leonards were doing ad hoc work. There was always an issue in the background about a steward, yes. But we expected that to be resolved with Corke very quickly.

PN340

Apart from that, did you see any other issues that needed to be discussed?---No. Nothing else had been brought to my attention where the previous discussions that we had had with the ETU.

PN341

So this 6 May meeting was - sorry, 6 May, you say there was a scheduled meeting for 12 May?---That's right.

PN342

If Corke was scheduled to come on, on 2 May, why did you not require them to come on before 12 May?---Well, we still actually required them to come on but we couldn't - as I said before, we didn't want to alienate the process so we had changed some of the things that were currently being done onsite and we wanted as smooth an introduction to site as possible. But looking at the history of the discussions about the agreement, as I said before, we couldn't see -and it was never being brought to our attention - any problems with the agreement, the site agreement.

PN343

Yes?---So we expected from the meeting that was going to be held on the 12th, to mobilise virtually immediately after the 12th.

PN344

In terms of the arrangements for work in that period, that 10-day period of 22 May and 12 May, what did you actually do onsite that was productive in the absence of Corke?---Well, as far as electrical work there was none. What we did is we just changed some of the program as far as the ..... were concerned, okay?

**** GEOFFREY ROBERT MESSENGER XN MR DALTON
PN345

All right, 12 May, what happened on that day?---12 May - - -

PN346

Did the meeting go ahead?---The meeting went ahead on 12 May.

PN347

How do you know that?---I spoke to Mr Corke after the meeting. I had been speaking to him all the way through the process and he reassured me the meeting was still going ahead on the 12th.

PN348

Yes?---After the meeting on the 12th I rang Mr Corke to find out what the result was because I expected to mobilise on the 13th. Mr Corke said that they had - they didn't come to an agreement and they were looking at their next meeting on the 19th. Now, with that - when I was talking to Mr Corke, he said that
Mr Coffey, Mr Mighell and also Mr Kennedy from NECA were present at the meeting. So I got an understanding from Mr Corke on what some of the issues were. He said it had been raised that the ETU weren't happy with the site rates, weren't happy with the site allowances and weren't happy with the apprentice ratios, I went through that conversation with him and I wasn't very happy at the time because none of these things had ever been raised before.

PN349

Yes?---So when I finished the conversation with Mr Corke I rang Mr Kennedy to get Mr Kennedy's interpretation of the meeting and that was exactly the same. Now the fact that they were having the meeting on the 19th, both Mr Kennedy and Mr Corke indicated that he thought they were very close to getting some sort of resolve, some sort of resolution. Because at that time, I then decided after consultation with Mr Quinlan from Siemens that we would hold off until they had the meeting on the 19th to see what the result was there in regard to our application that was currently outstanding.

PN350

So what happened between the 12th and the 19th in relation to work and
Corke?---Well, we didn't - again, we didn't do any electrical work onsite. No electrical work was carried out because again it was a matter of just continuing the process and changing the priorities as far as the program would allow, to make sure work continued onsite. So all the other people were working onsite, all the other trades.

PN351

All right, 19 May; did the meeting go ahead?---No. 19 May Mr Corke rang me in the morning and he informed me that Mr Kennedy - sorry, Mr Mighell had phoned Mr Kennedy and cancelled the meeting. Some reason, I'm not quite sure of what the meeting - I think it was the reason - I think it was some personal reason. I'm not quite sure but the meeting had been cancelled until the Wednesday, this coming Wednesday at 2 pm.

**** GEOFFREY ROBERT MESSENGER XN MR DALTON
PN352

Right?---Mr Corke also advised me that Mr Kennedy had been advised that no work was to commence onsite by Corke until after the meeting took place on the Wednesday.

PN353

Who did he say advised Mr Kennedy that?---Mr Mighell.

PN354

So what was your reaction to all of that?---Well I was - it may be naïve but I was a little bit shocked because, again, I thought we were very close to some sort of resolution. The meeting had been put back and again been put back to next Wednesday but we wanted to start work on the process because the process had now lost nearly - well, over two weeks. So from the discussions I had with
Mr Corke, Mr Corke seemed to say or imply that even next Wednesday he didn't expect to get any sort of resolve.

PN355

Based on what has happened, how do you regard the approach of the ETU? Do you expect them to reach an agreement with Corke on Wednesday?---Talking to Mr - sorry, my discussions with Mr Corke and Mr Kennedy lead me to believe that there won't be a resolve on Wednesday.

PN356

Why do you think that?---Just from what Mr Corke and Mr Kennedy have said, they just believe that it's delaying tactics of going through the process and I believe that what we had said is that we wanted to start work on the Tuesday and Wednesday and the meeting go ahead. That we were trying to be as proactive as possible in resolving any issues that were outstanding and I believe, from the response that we got that we weren't allowed to start work, that they were just coming up for reasons for impacting on the project.

PN357

Did anything else happen on 19 May?---Well, on 19 May, earlier than the discussions I had with Mr Kennedy, I had called Mr Glen Harrison, who is the electrical superintendent for Siemens on the construction site and I had arranged with Mr Harrison to get Corke employees inducted onsite on the Friday.

PN358

Right?---Mr Harrison rang me back and said he had spoken to the CFMEU steward and that would be fine; we could get Corke employees inducted on the Friday, because we had planned - with that in process, we had planned then for the deliveries to take place onsite tomorrow. So there was no dispute with the CFMEU, they were quite happy for that process to go ahead. On Friday morning at approximately 10 past 7 I had a call from Glen Harrison who advised me that the CFMEU FEDFA steward, Mr Rick Reilly, had refused to induct the employees of Corke and Mr Reilly had said to Kirk Anderson, the Corke site supervisor, that he was sorry about this but it wasn't a problem from the CFMEU, it was the ETU that had caused this delay.

**** GEOFFREY ROBERT MESSENGER XN MR DALTON
PN359

Yes?---Now, I subsequently spoke to the CFMEU organiser on Friday afternoon.

PN360

Who was that?---Mr Frank O'Grady. And Mr O'Grady advised me that there was no dispute between the CFMEU and Siemens or any of our contractors onsite.

PN361

So as far as Siemens is concerned, what is your position?---Well, we need the employees to come onsite tomorrow to commence the electrical works.

PN362

Why is it so urgent? Why can't it wait till Wednesday in the hope that there might be some resolution between Corke and the ETU?---Well, we have the delivery scheduled tomorrow. We're going to get transformers coming in toward the end of the week. We've got to do preparatory work.

PN363

What is the preparatory work?---We have to do some pre-assembly work for the transformers but we also have delayed the process since 2 May so the timeframe for finishing has become more and more squeezed. So we need to mobilise as quickly as possible.

PN364

What type of work do you expect will be carried out over the next few
days?---Well, we will still be doing - - -

PN365

Perhaps if we look at the next week?---Well as far s the electrical employees are concerned - - -

PN366

Yes, electrical?--- - - - we have over 650 square metres of electrical instruments components sitting on the wharf that we're bringing on site. These components have to come onsite, they have to be unpacked and they have to be inspected by people with electrical knowledge because you can't just open up the boxes and put them anywhere. They have to be checked off packing lists. We have the - - -

PN367

Who carries out that work?---Electrical employees.

PN368

Of Corke?---Of Corke, sorry, yes. We have the bus ducts - - -

PN369

Sorry, when is that due to arrive?---They're coming in tomorrow morning. They've been sitting - - -

PN370

They're on the docks at the moment; how long have they been sitting
there?---They've been sitting on the dock since early May.

**** GEOFFREY ROBERT MESSENGER XN MR DALTON
PN371

Right, and who pays for that?---We're paying for the demurrage costs, the freight costs at the moment - the storage costs, Siemens are paying for those.

PN372

Do you know how much that is?---It's somewhere in the vicinity of $4000 a day.

PN373

So there is the unpacking and checking and pre-assembly; is there any other work you expect needs to be performed over the next week?---Yes. We have the phase bus ducts which are coming onsite. Again, they have to be prepared, ready for welding and the phase bus ducts are the main ducts which take the electricity from the generator. So they have to be inspected and be prepared because they have to be welded by metals employees. But they have to be inspected by electrical employees first of all.

PN374

Employees of Corke?---Sorry. Employees of Corke.

PN375

Yes?---And then we're also bringing on the transformers later on in the week, right, and they will have to do some pre-work on assembling the - sorry, on installing the transformers.

PN376

Is there any type of work they need to do over the next couple of days?---Well, as far as the program goes there will be all types of electrical work because we've now squeezed down the program by losing these first two to three weeks. So we would look - they're the immediate things we have in the process at the moment that are required but we have the power control cabinets coming onsite. The
pre-wiring will have to be done on the power control cabinets and as soon as we can get all this instrumentation and components onsite, we will start work on them.

PN377

But if we concentrate, let's say, from now until Wednesday; what work do you say has to be carried out?---Well, we also have which I had forgotten is the earthing mats which have to go down. Currently the civil works have left open various trenches and various holes along the outside of the foundations. These areas have to have the electrical cable laid down for the earthing mats and then covered over. So as we do that we have to move around the site and presently, as I said, well we're going to have different heavy components - heavy lift components come in so it's a matter of trying to work in with the civil people to make sure that we can get these electrical earthing mats laid down.

PN378

So the next couple of days?---Sorry.

**** GEOFFREY ROBERT MESSENGER XN MR DALTON
PN379

What work do you think has to be carried out and how many people are involved?---Well, we need the earthing mats - work to commence on the earthing mats.

PN380

Yes?---We need work to commence on the unpacking and inspection of the electrical items that are coming on board and then we need work to commence on the pre-work for the transformers.

PN381

How many employees are going to be involved in those tasks?---At this stage we're looking at about 10 employees.

PN382

When is full mobilisation of Corke employees due?---We expect full mobilisation for Corke employees to be in week 2 of June next month and we expect about
35 employees.

PN383

In terms of if the work were to be delayed, is there an impact?---There is impact.

PN384

What is the impact?---The impact - not all the components are linked to each and every component but if we look simply, say, at the earthing mats which I mentioned before, that will hold up the civil work.

PN385

In what way?---Well, if the earthing mats - if the earthing cables aren't laid down we then can't enclose the trenches or cover the trenches, then that won't allow us to bring on heavy lift equipment in that particular area because the ground won't be flat.

PN386

When is the heavy lift equipment due to come on?---We have heavy lift equipment coming on towards the back end of this week. But at the moment we have our turbine and our generator and we're expecting the transformers to come in and the lift - the lifts are between 100 and 270 tonne. So you can understand that the place has to be structured. You can't just drive these things on the road. The load would be flopping over on the frame.

PN387

Anything else?---Well just in general, the metals guys can't start until - well, sorry, they're currently doing some structural work but they can't do any work on the bus ducts until the bus ducts have been inspected by the electrical people and the bus ducts have to go in before the roofing starts. So as I said before, these things are tied up to other components in the program. So if we look just immediately at those two areas and if we can't start unloading and unpacking all the electrical work, that will hold up installation, again of both the power control cables and some of the other cables that have to be run in the areas of the control cables.

**** GEOFFREY ROBERT MESSENGER XN MR DALTON
PN388

If there is a delay of a few days or a week or so, what if any impact is there to the overall project? Can you not catch that up?---Because we have tightened the program even further - it was very tight to start with and because we have tightened the program from the 29th or from 2 May, it has become more and more difficult to try and squeeze the amount of work required in the available timeframe. We have to have this project finished in December. So what we have done is, we - and it may be naïve but after our discussions on 29 October we didn't - sorry, on 29 April, we didn't see that there were a lot of areas that would
cause - or very many areas at all that would cause problems as far as getting the agreement signed with the ETU. Because other members or other people from Siemens and myself had had discussions with the ETU and we felt confident that the process would go forward very, very quickly; and all the efforts that have been made by Corke to contact the ETU have, to a certain degree, been futile. They have managed over a 3-week period to have one meeting with two of them cancelled and then another meeting next week. So the program is just getting further and further behind.

PN389

Just on the site agreement, are Corke able to - as far as Siemens are concerned with this document, is Siemens willing to allow contractors to negotiate variances to the site agreement?---No. No. The site agreement is actually fixed. Everybody had agreed to the site agreement right from the start.

PN390

Yes?---And it's my understanding that everybody was aware of that and happy with it and that's why we went forward, both with the agreement in total and that's why the CFMEU and the AMWU and the plumbing division have signed the agreement; and my understanding is everybody was privy to the meetings that they had set up, right, to get the agreement established and it would move forward very quickly. That hasn't been the case with the ETU.

PN391

Yes, well I think you gave evidence that you had heard from Mr Crawford that
Mr Mighell's feedback was that he wasn't happy with the rates in the
agreement?---That was correct.

PN392

What is your reaction to that?---I was quite surprised because nothing had been mentioned to me. I'd had discussions with Mr Mighell before about this and nothing had ever been brought up about that.

**** GEOFFREY ROBERT MESSENGER XN MR DALTON
PN393

No more questions, Commissioner.

<CROSS-EXAMINATION BY MR BORENSTEIN [4.40PM]

PN394

MR BORENSTEIN: Mr Messenger, you said a moment ago that everybody had agreed to this site agreement, Siemens site agreement; is that correct?---That was my understanding, yes.

PN395

Obviously everybody did not, because not everybody signed it; did they?---I can't explain to you why the ETU haven't signed the agreement.

PN396

It's a pretty good indication of non-agreement if you don't sign the document, is it not?---Well, that could be the case but I also at present have electrical employees working onsite and no points regarding the agreement and the payments to the employees who are electrical employees was ever brought up.

PN397

You say you have had discussions with Mr Mighell over the last few weeks when you have seen him in possession of a copy of the Siemens site agreement?---No. I think what I said was I had spoken to him in March.

PN398

Yes?---Right?

PN399

He then had a copy of the Siemens site agreement?---That's correct.

PN400

And it had not been signed?---That's correct.

PN401

You say that he never said to you that there was anything wrong with it?---That's correct.

PN402

Did you ask him why he had not signed it, when you saw him with the document on his desk or wherever he had it?---Mr Mighell had said at that time that there was a problem with Siemens because he didn't particularly - he wasn't particularly enamoured to Siemens at that time because of some issues outside of this site agreement.

PN403

Did you ask him why he didn't sign the site agreement?---Mr Mighell wasn't happy with Siemens at the time.

PN404

THE COMMISSIONER: No, no. The question is did you ask him why he did not sign?---Yes. He said why he wouldn't sign, sorry.

PN405

MR BORENSTEIN: He made no mention of any clauses in the
agreement?---No. That's correct.

**** GEOFFREY ROBERT MESSENGER XXN MR BORENSTEIN
PN406

Did you tell Mr Mighell that the Siemens site agreement is not negotiable?---No. I don't think I did.

PN407

Do you think that would have been a useful thing to tell him, since he was not signing the document?---Well, at that stage - and I still am under the understanding that Mr Mighell and the ETU, right, were aware and participated in developing the agreement in September October last year.

PN408

You were not there of course at that stage?---That's correct.

PN409

You came later?---That's correct.

PN410

So all you know firsthand is that when you arrived other parties had agreed to the agreement by literally signing off on it and the ETU had not?---No. When I actually started with Siemens in November, nobody had signed the site agreement.

PN411

Okay but following that, other parties did sign and the ETU did not?---That's correct.

PN412

The Siemens site agreement, Siemens does not actually employ any electrical workers does it?---Not at this point in time, no.

PN413

Is it planned that it will?---We may be, yes.

PN414

I see?---Depending on the process.

PN415

Depending on which process?---Well, how the program goes.

PN416

Which program?---Sorry, the construction program.

PN417

But you've got Corke coming in to do the electrical contracting work?---They are one of the electrical contractors.

PN418

There is a range of others as well?---That's correct.

PN419

So there is no plans presently to employ electrical employees yourself?---That's correct.

PN420

You gave a lot of evidence of discussions which you had with Mr Corke and
Mr Kennedy over the last few weeks; you said that some Corke employees came onto the site in early May for induction?---That's correct.

**** GEOFFREY ROBERT MESSENGER XXN MR BORENSTEIN
PN421

They were supervisory employees were they not?---Yes. But I also believe that there were some electrical employees.

PN422

Why do you believe that?---Because the supervisor, Kirk Anderson, had advised me that was the case.

PN423

So it's hearsay?---That's correct.

PN424

You have no personal knowledge of that fact?---That's correct.

PN425

So if Mr Coffey gave evidence that his understanding was that they were only supervisory employees, you could not directly contradict him?---That's correct.

PN426

You gave some evidence that you were prepared to wait on the outcome of the meeting that was scheduled between the parties on 12 May, between Corke and ETU; do Corke's know that the terms of the site agreement are not
negotiable?---Yes.

PN427

Do they know that they must agree to that agreement and nothing else?---Yes.

PN428

Do you know that your application to this Commission for an order under
127 contains as one of its grounds reliance on the objects of the Act?---No.

PN429

You don't know that? You are an industrial relations consultant; are you familiar with the objects of the Act?---Not all of them, no.

PN430

Are you familiar with the object of the Act that says that the primary responsibility of the conditions of employment of employees is to lie with the employer and the employees?---Yes.

PN431

Do you see some inconsistency between that and Siemens dictating to one of the contractors what the terms and conditions of employment of its employees should be?---In the fact that the agreement was - and I will say agree, we will agree to disagree on that - between all the parties in October, the fact that electrical employees have been engaged onsite under that agreement, no I don't see.

PN432

Are you familiar with the contract between Corke and Siemens for the performance of work on this site?---No.

PN433

You're not familiar with it?---I have no - no, I have not read it completely. No.

**** GEOFFREY ROBERT MESSENGER XXN MR BORENSTEIN
PN434

From the parts that you have read can you tell this Commission whether there is a condition in that contract that says that Corke may only employ its employees on terms and conditions that are approved by Siemens?---No. I can't do that.

PN435

You can't tell us that. Is the contract available? Can we look at it?---I don't have it here. No.

PN436

How hard would it be to get it?---Well, I could get a copy of it.

PN437

Yes, well I would ask that the witness be directed to do that, Commissioner.

PN438

THE COMMISSIONER: Does it need a direction?

PN439

MR DALTON: I don't think it will need one but it's just a question of how quickly that could be obtained.

PN440

THE COMMISSIONER: How quickly can it be obtained, Mr Messenger?---I would try and contact site as soon as I get out of here. Whether most of the people have left site because it's an RDO I couldn't tell you. But it would be at least a couple of hours.

PN441

MR BORENSTEIN: Commissioner, it's a relevant matter for us.

PN442

THE COMMISSIONER: Yes. I was now thinking of something - - -

PN443

MR BORENSTEIN: If it can't be done this evening then it will have to be done tomorrow morning or some other convenient time. But we would want to look at it and make submissions about it.

PN444

THE COMMISSIONER: Yes. Do you need to cross-examine on it?

PN445

MR BORENSTEIN: Well, I don't know what is in it.

PN446

THE COMMISSIONER: That is right. I guess if the witness does not know about it either there is not much point in cross-examining.

PN447

MR BORENSTEIN: Well that may be so. Exactly. That may be so but it may be there is something in it that directly contradicts what he said.

PN448

THE COMMISSIONER: Yes. You have heard what the witness has said about what he does - - -

**** GEOFFREY ROBERT MESSENGER XXN MR BORENSTEIN
PN449

MR BORENSTEIN: I am happy to go as far as - he said it's going to take hours.

PN450

THE COMMISSIONER: But that is if he makes contact with someone now.

PN451

MR BORENSTEIN: Yes. That is still going to make it very late.

PN452

THE COMMISSIONER: Yes.

PN453

MR BORENSTEIN: I'm happy to go as far as I can go with him today.

PN454

THE COMMISSIONER: I had better hear what Mr Dalton says about all that because he is pretty keen to get some action; are you not?

PN455

MR DALTON: Obviously this application has some urgency, in my submission, and so some sensible approach needs to be adopted. One that does not unduly delay the determination of the application.

PN456

THE COMMISSIONER: It sounds like this matter is relevant.

PN457

MR DALTON: It's put as something that's relevant although - - -

PN458

THE COMMISSIONER: Sorry. It has the potential to be relevant.

PN459

MR DALTON: Potential to be relevant and there will be an issue as to the extent of its relevance and the weight to be placed on it. I mean, I don't want to deal with this in too much detail in the way of submissions but the evidence of the witness put on one thing and Mr Borenstein wants the opportunity to challenge him in relation to that evidence by way of a document and Mr Messenger is not able to recall what is actually in the document, the Commission, if it has to can place whatever weight it decides to place on the oral evidence of Mr Messenger in circumstances where it's not able to be verified by reference to the actual contractual documentation that underpins the relationship between Siemens and Corke.

PN460

THE COMMISSIONER: Yes. But Mr Messenger is unable to tell us what is in that document about this matter.

PN461

MR DALTON: No, he is not. No.

PN462

THE COMMISSIONER: Well, okay.

**** GEOFFREY ROBERT MESSENGER XXN MR BORENSTEIN
PN463

MR DALTON: The fact that he says that Corke has been told that the site agreement was not negotiable, he says that for what that's worth. So it may be just something that the Commission just says well - - -

PN464

THE COMMISSIONER: We will press on.

PN465

MR DALTON: Yes, fine.

PN466

THE COMMISSIONER: I am going to give you that direction then, to provide the copy of the contract but timing will be a matter that is to be sorted out.

PN467

MR BORENSTEIN: Thank you.

PN468

You told us that you spoke to Mr Corke after the meeting of 12 May and that he told you about the outcome of the meeting; do you remember that?---Yes.

PN469

You told us that he told you that the meeting had not come to an agreement and that they were looking at a further meeting on 19 May and that he told you about some of the issues that were not agreed and you said something about site rates, allowances, apprentice ratios; did he mention overtime?---No.

PN470

Then you told the Commission that you were speaking to both Mr Kennedy and Mr Corke, they both indicated they were close to resolution?---Yes.

PN471

Did they tell you what sort of resolution they expected?---The agreement to be signed.

PN472

Yes, but did they tell you what was going to be in it, in terms of these issues that were unresolved?---No. No.

PN473

Okay?---They indicated to me that they thought that it was just some sort of delaying tactic, right, and that was it because they thought they would be resolved on the following Thursday.

PN474

They though there would be a complete capitulation from the ETU?---Well, I don't know whether capitulation is the correct word but they thought they would have all differences resolved.

PN475

Once they reach an agreement, if they reach an agreement, does that agreement have to be approved by Siemens before they can put it up to the Commission?---I wouldn't think so.

**** GEOFFREY ROBERT MESSENGER XXN MR BORENSTEIN
PN476

Let us assume that they give them conditions that the ETU want that are not in the standard site agreement that Siemens have developed, yes? Can they go ahead and seek certification of that agreement even though it's in excess of what is provided for in the site agreement that you have done?---My understanding would be that it would be - look, I would have to again refer that to Siemens management.

PN477

So it's not clear that they could just do that?---No.

PN478

You have a doubt and you think that you may have to get approval from Siemens management; is that the position?---That's correct.

PN479

They cannot even negotiate an agreement on their own without approval from Siemens, is your understanding?--- No. I didn't say that.

PN480

MR DALTON: That is not what - - -

PN481

MR BORENSTEIN: I'm asking him a question in cross-examination.

PN482

MR DALTON: - - - he said.

PN483

MR BORENSTEIN: I'm asking if that was his understanding.

PN484

MR DALTON: The witness answered the question.

PN485

WITNESS: I didn't say that.

PN486

MR BORENSTEIN: I'm asking you if that's your understanding?---Sorry, what did you say again?

PN487

I'm asking you whether it's your understanding that these two parties, Corke and the CEPU, cannot negotiate their own agreement and have it certified without Siemens' approval?---I'm not sure.

PN488

You're not sure about that. You're the industrial relations consultant, are you not?---That's correct.

PN489

For the whole project?---That's correct.

PN490

Is this not part of your task, to sort of ride the herd on these things?---Yes, and I also report back to the people that I work for.

**** GEOFFREY ROBERT MESSENGER XXN MR BORENSTEIN
PN491

Who do you report back to?---I think Pat Quinlan - Patrick Quinlan who - - -

PN492

What is his position?---Sorry?

PN493

I just want to know their positions as well as their names?---Yes. Which I explained before. He's the HR manager for Siemens Power Generation.

PN494

Okay, and so when you ascertain a particular development in the industrial relations area, say, between Corke and CEPU, your function is then to report back to him?---Yes. That's correct.

PN495

Then does he give you some instruction to report back to these people?---Yes.

PN496

Okay?---We do that in consultations.

PN497

Yes, so is it your position you don't know as you're sitting here in the Commission whether or not it's necessary for any agreement that's developed between Siemens - between Corke and the CEPU; you don't know whether it's necessary for that to be approved by Siemens before it can be put up for certification by Corke?---I would certainly talk to Siemens senior management about it. That's correct.

PN498

Yes, but you can't tell us whether it's necessary for them to approve it before Corke can do it?---That's correct.

PN499

That of course might appear out of the contract between Corke and Siemens; might it not?---That's correct. Yes.

PN500

Have you had a lot of experience with large projects like this in the industrial relations area?---A reasonable amount, yes.

PN501

It's pretty common, is it not, for the head contractor to have provisions in the contract with the various subcontractors to the effect that they have ultimate control over the industrial relations matters on the site?---That's correct. Yes.

PN502

That includes the terms and conditions that the individual contractors are allowed to agree upon with the unions; correct?---Correct.

PN503

Yes, and so until we see this contract that is the best we have got to go on in terms of what might be the position?---Is that a question?

**** GEOFFREY ROBERT MESSENGER XXN MR BORENSTEIN
PN504

Is that correct?---Yes. but as I said before it was my understanding - and that's why the process has gone down the path that it has - that through the PEIG and through the various unions in September October last year, but again I admit I wasn't privy to those discussions, that there was an agreement reached by all the parties concerned and that included the CEPU.

PN505

Yes, except that your experience since at least March would not bear out the fact that the CEPU are agreeable to the site agreement; isn't that so?---That's correct. But also, as I said, the discussions that I had with Mr Mighell didn't indicate what problems, if any, there were apart from his problems with Siemens as a group.

PN506

Is it correct that you never asked him whether he has got a problem with any particular clause in the site agreement?---I think - yes, I think that would be correct. I can't specifically remember asking him.

PN507

Thank you. Coming back to the meeting of 12 May and your discussions with
Mr Kennedy and Mr Corke, they were hopeful of reaching an agreement on
12 May and they were hopeful of accommodation, presumably, the various issues that were then outstanding and which had been told to you?---That's correct.

PN508

You were informed that the meeting on 19 May had been cancelled; were you in the Commission on 20 May?---Yes.

PN509

Was Mr Kennedy in the Commission on 20 May?---No.

PN510

He was not? Was Mr Coffey in the Commission on 20 May?---Yes.

PN511

Just excuse me a moment. Did you have any discussions with Mr Kennedy on
20 May?---No. No.

PN512

Did you have any discussions with Mr Kennedy since 20 May?---No.

PN513

You told us that you spoke to both Kennedy and Corke about the prospects of the meeting that was going to happen on Wednesday?---Yes. Sorry, no. I spoke to - I didn't speak to Kennedy on the 20th, I spoke to Corke about the meeting that was to be held on this Wednesday.

PN514

On the 20th you spoke to him or when?---It was the 20th.

PN515

The 20th was Friday?---That was the day.

**** GEOFFREY ROBERT MESSENGER XXN MR BORENSTEIN
PN516

So you spoke to him last Friday; you spoke to Mr Corke about the meeting to come on this Wednesday?---That's correct.

PN517

What did he tell you about his expectations?---He didn't expect to be able to sign the agreement on the 20th - on this Wednesday.

PN518

Is that what he said to you?---Yes.

PN519

Is that all he said to you?---Yes.

PN520

So when you gave evidence-in-chief about this discussion and you said that he didn't think the problem would be resolved and he thought it was a delaying tactic on the part of the union; that was not what he said?---No. That's what he said.

PN521

A minute ago you said that the only thing he said to you was he didn't think he would be able to sign the agreement on Wednesday?---Because he didn't think that they would get the result, yes.

PN522

I asked you, I said to you Mr Messenger is that all that he said and you said yes. Now, you have to get your story straight?---Well, sorry. I made a mistake. What he had said, right, was that he didn't believe that he would get a result on the Wednesday and that it was delaying tactics.

PN523

Are they his exact words?---No. But they were words to the effect of that.

PN524

Can you remember his exact words?---No.

PN525

Mr Corke works in Melbourne does he not?---That's correct.

PN526

There is no reason why he could not have come along here today to give evidence about these things, is there, that you know of?---Not that I know of. No.

PN527

Did you seek to make any enquiries to see whether he would come along and give this evidence firsthand?---No.

PN528

And Mr Kennedy likewise?---I haven't spoken to Mr Kennedy.

PN529

No, but you did not make any efforts knowing this case was going to come on, to have him come along and give the evidence firsthand?---No.

**** GEOFFREY ROBERT MESSENGER XXN MR BORENSTEIN
PN530

You don't know what, if anything, transpired between Mr Kennedy and the union between 20 May and today?---That's correct.

PN531

In terms of the attempt to induct employees on 20 May, the Friday, that you told us about; you don't have any firsthand knowledge of what happened, do
you?---No. I wasn't onsite.

PN532

The only direct information you have is a conversation you had with Frank O'Grady from the CFMEU; is that so?---No. That's not correct. I had discriminations with Frank O'Grady in the afternoon, right?

PN533

Yes?---But I was advised by Glen Harrison, who is the electrical superintendent for Siemens, that morning that the Corke employees were refused induction by the CFMEU FEDFA steward.

PN534

Okay?---And I also relayed it to steward of the shop - - -

PN535

So that's second-hand hearsay that you've got from the superintendent?---That's correct.

PN536

When you spoke to Mr O'Grady in the afternoon what did you ask him?---I ask him - well, I asked him whether there were any issues with the CFMEU or whether there was any dispute with the CFMEU and any of the contractors or sanders on that construction site.

PN537

That was your question, was it?---Yes.

PN538

No other bits and pieces; that was the question?---That wast the question.

PN539

He said no, did he?---That's correct.

PN540

That was the totality of the discussion?---No. No. We discussed various other things.

PN541

Okay, but nothing relevant to this issue?---No. I don't think so. No.

PN542

You told us that Mr Corke had spoken to you following the meeting the meeting that had been cancelled, on 19 May?---Yes.

PN543

And he told you it had been cancelled and you say that he said that Mr Mighell - I'm sorry. You say that Corke told you that Kennedy was advised by Mr Mighell that no work was to commence until 25 May on the site; is that what your evidence is?---Until after the meeting they were to have on Wednesday.

**** GEOFFREY ROBERT MESSENGER XXN MR BORENSTEIN
PN544

Until after the meeting, okay?---Yes.

PN545

So you are being told by Mr Corke what he was being told by Mr Kennedy, that was told to Mr Kennedy by Mr Mighell; is that the position?---That's correct.
Mr Corke is the employer and Mr Kennedy the - - -

PN546

I understand that and I suppose it would be much too much to ask anyone to know what the exact words in the supposed conversation between Mr Kennedy and
Mr Mighell were?---Is that a rhetorical question?

PN547

Well, do you know what the exact words were?---No.

PN548

No. You gave a whole lot of evidence about the effects that would happen on the project if you couldn't immediately do exactly what you wanted to do. When you agreed to the various timelines - when the company agreed to the various timelines in this project, do you know whether they had consultations with any of the unions to see whether the unions would commit to the timelines in
question?---I don't know.

PN549

Do you know whether the company had any discussions - sorry, I withdraw that. I have no further questions, thank you, but I do need to reserve my position regarding the contract.

PN550

THE COMMISSIONER: Yes.

PN551

MR DALTON: No re-examination, Commissioner.

PN552

THE COMMISSIONER: Yes, thanks Mr Messenger. Mr Messenger, you may be recalled to give evidence in these proceedings, subsequent to providing that document. I suggest the way you provide the document is to give it to Mr Dalton who will pass it on. So I have to direct you not to discuss the evidence you have given in these proceedings with any person, pending advising you otherwise or the conclusion of these proceedings, whichever comes last?---Thank you.

PN553

You are free to go or you can remain if you wish.

<THE WITNESS WITHDREW [5.04PM]

PN554

MR DALTON: That's the evidence of the company, Commissioner.

PN555

THE COMMISSIONER: Yes.

PN556

MR BORENSTEIN: I wish to call Mr Coffey, Commissioner. Yes, Mr Coffey?

PN557

THE COMMISSIONER: Silence please.

<PAUL JAMES COFFEY, SWORN [5.04PM]

PN558

THE COMMISSIONER: Sorry, just before you do, there was a phrase that was used by Mr Messenger that I think we might need to get some spelling of. It was a bus duct?.

PN559

MR MESSENGER: Yes. B-u-s d-u-c-t. Two words.

PN560

THE COMMISSIONER: Thanks.

<EXAMINATION-IN-CHIEF BY MR BORENSTEIN [5.04PM]

PN561

MR BORENSTEIN: Mr Coffey, can you tell the Commission your full name please?---Paul James Coffey.

PN562

Your address?---(Address supplied).

PN563

What is your present occupation?---I'm an official for the Electrical Trades Union.

PN564

When you say you are an official of the Electrical Trades Union; you are an official of the - perhaps shall we call it the electrical division of the
CEPU?---Sorry, the electrical division of the CEPU.

PN565

Okay, you will have to get that straight, Mr Coffey. Have you been involved as an organiser in relation to Corke - I'll just get their exact name - Corke Instrument Engineering Australia Pty Ltd over the last six months?---Besides this job? Yes. Yes.

PN566

Do Corke have more than one job going at any particular time?---Yes. They would.

PN567

Is your interest in Corke confined to any particular jobs or do you cover them wherever they are?---I just cover a geographical area.

PN568

So does that relate to the area where the Siemens project is?---Yes. It does.

PN569

Have you had dealings with Corke in relation to the performance of their work on the Siemens project?---Yes. I have.

PN570

Can you tell me when it was that you first had any discussions with Corke about this particular project?---Yes. I think it was 12 May. It was the first meeting that we had.

PN571

Was that something that was arranged in the course of conciliation of the Leonards matter?---Yes. It was.

**** PAUL JAMES COFFEY XN MR BORENSTEIN
PN572

The meeting of 12 May was attended by yourself?---Yes.

PN573

Mr Mighell?--- Yes.

PN574

And who attended from Corke?---Reg Corke himself, and I'm not sure of his name but one of his supervisors.

PN575

Was Mr Kennedy there?---Yes. From NECA.

PN576

Mr Kennedy is from NECA?---Yes.

PN577

What was discussed at that meeting?---The site agreement.

PN578

Which particular site agreement?---For the Siemens Laverton site.

PN579

Yes, but site agreement with who?---Between the union and Corke, the company.

PN580

What wast the - I'm sorry. Apart from the site agreement, does the ETU - we'll call it the ETU - have an enterprise agreement with Corke?---Yes. We do.

PN581

Is that an agreement that covers their work generally?---Yes.

PN582

What was the need for a particular site agreement for this site?---Under our certified agreement with Corke there's a clause, clause 3.2 actually, in our certified agreement that says before the company starts a[sic] engineering project, that they'll sit down with the union and come to an agreement on a site agreement.

PN583

So is that the site agreement that you were discussing on the 12th?---Yes.

PN584

Do you have the enterprise agreement with you in the witness box?---Yes. I do.

PN585

Can you just turn up clause 3.2?---Yes.

PN586

Do you want a copy of this?

PN587

We have got some copies of the relevant clause. Can I tender, Commissioner, just extracts from the award that contain the opening pages of it but cover clause 3.2? The whole award is quite voluminous. Could I tender that please, Commissioner?

PN588

THE COMMISSIONER: Yes.

**** PAUL JAMES COFFEY XN MR BORENSTEIN

EXHIBIT #B1 EXTRACT OF ENTERPRISE AGREEMENT, CLAUSE 3.2

PN589

MR BORENSTEIN: The witness has actually got a booklet so perhaps we can hand him the same thing that everybody else has got.

PN590

May I ask you to look at page 9 of the document you have got in front of
you?---Yes.

PN591

It's the last page?---Yes. Yes.

PN592

See clause 3.2?---Yes.

PN593

Is that the clause you are referring to?---Yes. It is.

PN594

You will see in the opening part of that it says that:

PN595

If the company intends to enter into a contract -

PN596

et cetera:

PN597

- to work in an engineering project, where no current site agreement exists the company agrees to negotiate one with the union.

PN598

Did you at that stage on 12 May have a current site agreement with Corke to cover that particular site?---No. We didn't.

PN599

In your discussions with Corke on 12 May, were they aware of this clause?---It was pointed out to them in the meeting but I think, yes, they were aware of it. Yes.

PN600

When you say it was pointed out to them at the meeting, how was it pointed out and by whom?---Just the clause was ready by Mr Mighell.

PN601

The clause was read out by Mr Mighell?--- Yes.

PN602

On that day on 12 May?---Yes.

PN603

What were the discussions that you had about the site agreement?---The discussions were that the Siemens site agreement that Siemens had put together with the other unions wasn't a bad agreement but there was a couple of clauses in that agreement that were very inconsistent with our certified agreement with Corke.

**** PAUL JAMES COFFEY XN MR BORENSTEIN
PN604

Yes?---Yes.

PN605

So what happened?---We wanted to work through negotiation on those particular clauses.

PN606

Can you tell us some of the clauses that you were concerned about?---Yes. There's a couple of clauses in the agreement regarding overtime and work over the Christmas period, apprentices and obviously we wanted to, yes, just talk about mainly those clauses were the ones that - - -

PN607

Were you comparing the Siemens site agreement to some other document?---Yes. Our certified agreement with Corke.

PN608

Were these the clauses that you identified as being inferior in the Siemens agreement?---Yes. Yes.

PN609

Were you told at any stage on 12 May that Corke were not able to depart from the terms of the Siemens agreement?---No.

PN610

All right. Well you identified those clauses to the people from Corke; is that correct?---Yes.

PN611

What was their response?---Frank Kennedy, the NECA representative from them to - who was in the room at the meeting was going to - under my understanding was going to go away and put change and clarry[sic] up those clauses a bit, to match more[sic] our enterprise agreement.

PN612

So he was going away to do that and were you going to be doing any thing in the meantime?---Yes. Myself and Frank got together on 20 May which was last Friday morning just to discuss those and it was also decided at the meeting if we did meet to talk on an ongoing basis, we would.

PN613

You mean you and Mr Kennedy?---Yes.

PN614

So you say you spoke with him on 20 May which is last Friday?---Yes. I did. Friday morning.

PN615

What was that discussion?---The discussion was - hinged around these clauses that were inferior to our certified agreement. We were - I put it to Frank that we remove those clauses and just slot in our certified agreement clauses and he said that he didn't have a problem with that but obviously, being the employer rep, he had to go back and talk to Corke.

**** PAUL JAMES COFFEY XN MR BORENSTEIN
PN616

When you finished the discussion with him on the Friday?---Yes.

PN617

What was your expectation of what would happen next?---That the clauses that were in disputation[sic] would be removed and our certified agreement clauses would be replaced.

PN618

When did you expect to hear from Mr Kennedy or Mr Corke about that?---This Wednesday.

PN619

At the arranged meeting?---At the arranged meeting.

PN620

When you left Mr Kennedy on 20 May, what was your expectation a bout the prospects of reaching a final settlement on Wednesday?---They were good.

PN621

At any stage since 12 May or perhaps even earlier, at any stage since you were aware - sorry, I will start again. When did you first become aware that Corke was going to be the electrical contractor on this site?---I couldn't tell you an exact date.

PN622

Approximately?---Early May.

PN623

Okay?---Middle of May.

PN624

All right?---Yes.

PN625

From the time when you first became aware, have you at any time issued a direction to any workers at Corke that they should not attend for work on the Siemens project?---No. I have not.

PN626

Do you even know which of Corke's workers would be working on the Siemens project?---No. I don't yet. No.

PN627

Have you had a meeting of Corke workers to discuss the Siemens project?---No.

PN628

You are the organiser responsible for this particular issue?---Yes. Yes.

PN629

To your knowledge has any other person from the ETU division of the union given any such instructions to any workers at Corke?---No. Not to my knowledge, no.

**** PAUL JAMES COFFEY XN MR BORENSTEIN
PN630

If they had, as the organiser for Corke would you know about it?---Yes. I would.

PN631

Similarly, have you given any instructions or directions or applied any pressure on Corke that they are not to send any workers to the site until the site agreement is finalised?---No.

PN632

Are you aware of anyone else at the union having done anything like that?---No.

PN633

Just excuse me a moment. You were in the Commission when Mr Messenger said that early in May there had been some Corke workers who had been inducted onto the site?---Yes.

PN634

What is your understanding of which workers it was that were inducted at that time?---My understanding, they were the supervisors. The people that would look after the job.

PN635

You also heard Mr Messenger give some evidence about some attempts to induct workers onto the site on Friday last week, that's the 20th?---Yes.

PN636

Are you aware of that?---Yes.

PN637

When did you become aware of that?---Friday.

PN638

What did you do when you became aware of that?---I rang Mr Reg Corke.

PN639

Yes, and what did you say to him?---I just asked if he was aware - if he understood - if he was aware, sorry, that some workers of his were getting inducted onsite.

PN640

What was his answer?---He said no and if they were he apologises and we left it at that.

PN641

Did he say what he was going to do about it?---No. No.

PN642

He just apologised?---Yes.

PN643

Did you say to him that the workers must come off the site?---No. I did not.

PN644

Did you issue any threats?---No.

PN645

Thank you, Commissioner.

<CROSS-EXAMINATION BY MR DALTON [5.17PM]

PN646

MR DALTON: Mr Coffey, you have been an organiser for a while?---Yes. I think so.

PN647

How long exactly?---About four years.

PN648

You have had plenty of experience in that time with projects of this type?---I wouldn't say a lot.

PN649

Big construction projects?---I've only done a couple of these.

PN650

Building construction projects as well?---Yes. Yes.

PN651

So you've got a fair bit of experience with those types of projects?---Yes.

PN652

You are familiar, are you not, with the industrial relations arrangements that are generally put in place on those projects in and around Melbourne?--- Yes.

PN653

It's true, is it not, that certainly as far as the ETU and the other unions that have a stake in the building and construction industry, it's their position that there should be a site agreement in place that is the framework for the terms and conditions to apply for all contractors who come onto that site?---In these - in engineering construction projects.

PN654

Yes?---Not on a normal construction project, no.

PN655

So for engineering construction work it's your expectation that there would be in place an umbrella or site agreement which will set the terms and conditions for work for all contractors when they come onto the site?---Yes.

PN656

Your union is particularly concerned to get those agreements in place so there's no problems with subcontractors down the line as the project continues?---Yes.

PN657

Yes?---Yes.

PN658

You would expect that subcontractors would come on and comply with the terms and conditions of the site agreement; correct?---Yes.

PN659

It's not the case, is it, that every single subcontractor who comes onto the site has actually signed a document that's in the form of the site agreement before you; have they?---It depends what - look, some jobs do it like that, some don't.

**** PAUL JAMES COFFEY XXN MR DALTON
PN660

Yes, so the answer to my question is that is right; isn't it? That not every subcontractor who comes onto the site has actually signed a document with the ETU and similarly the ETU may not have signed a document?---In an engineering construction project?---

PN661

Yes?---The last one I was involved in did that but I have been involved in another one that didn't do that.

PN662

Okay?---So it's - - -

PN663

So it's not a universal practice?---No. But it happens sometimes.

PN664

Yes, but you are keen to ensure, your responsibility as an organiser is to ensure that whatever the documentation there is, the subcontractors who come onto the site pay their workers the terms and conditions that are set out in that site agreement?---Yes.

PN665

Correct, yes?---Correct.

PN666

So it's important that the site agreement is in place?---Yes.

PN667

The site agreement for Siemens, you were aware of this agreement and you have been for several months; have you not?---Yes.

PN668

So that is the site agreement on which subcontractors will come on and pay the terms and conditions; correct?---Well, we haven't agreed to it but at the moment that's the site agreement for the other unions so when coming onto site they're getting paid under the terms of that agreement.

PN669

I put it to you, Mr Coffey, that in fact you did sign up on the site agreement because the ETU would not allow a situation for this project to unfold to the point that it has without a site agreement in place; that's right is it not?---Yes. That's right.

PN670

Yes?---But I think you're getting towards Leonards, the other, what you call, contractors there.

PN671

Just wait until I ask you those questions, thanks?---All right.

**** PAUL JAMES COFFEY XXN MR DALTON
PN672

In relation to this Siemens project, there has been a significant amount of electrical and instrumentation work that has been carried out on this project; correct?---No. Not under my understanding, no.

PN673

It's true, Mr Coffey, is it not that you have raised the concerns in this Commission about the extent of electrical work that has been carried out by Leonards;
correct?---Yes.

PN674

So it's true, is it not, that there has been a significant amount of electrical work in your mind at least on the project already?---No. No. Not now. No.

PN675

Leonards Electrical has had a fairly consistent presence on the site, has it
not?---No. If you look at Mr Messenger's words, he said they were at - - -

PN676

No. I am asking for your response.

PN677

THE COMMISSIONER: If the witness might answer the question?---No. They're not there all the time.

PN678

MR DALTON: No. I didn't ask you whether they were there all the time?---I'm sorry, you said a significant - I wouldn't say that, no.

PN679

You have been aware that Leonards has been on that site on numerous occasions since the project started; correct?---Correct.

PN680

Yes, and you have not had any concerns about Leonards working on that site other than your concern about the fact that they did not have a shop steward representing the ETU?---No. That's not right. No, I had concerns because we haven't agreed to the site agreement that they're working under.

PN681

Well Mr Coffey I put it to you that you've never raised any issues with the company, Leonards, or Siemens or this Commission other than the issue of site representation and the extent to which Leonards was being used on the site; that's correct is it not?---No. I've had some talks with Leonards.

PN682

I put it to you that at no stage have you ever raised any concerns - - - ?---In here.

PN683

In here or anywhere else, Mr Coffey, about the terms and conditions of the site agreement being applied by Leonards?---Yes. I've had some talks with Leonards, Mr Michael Leonard, the company director.

**** PAUL JAMES COFFEY XXN MR DALTON
PN684

I didn't ask you whether you had any talks. I'm putting to you that you
didn't - - - ?---Well, you just said I didn't have any concerns. I did have concerns.

PN685

What specific concerns did you raise?---The same ones that were raised with Corke, the apprentice ratios, the overtime. But I'm under the impression that once Corke start there and become the major electrical contractor, there will be very little work for Leonards to - except come in and maybe tag a few sheds. End of story with them.

PN686

In relation to Corke, you have been aware that Corke was the successful tenderer for the electrical work since at least - you have been aware since at least yo have come back from annual leave; correct?---I said I think before early May.

PN687

Yes?---It might have been a week or two before. I'm not sure exactly.

PN688

So a bit before that, perhaps late April?---May. I'm thinking in my head at the moment, May. Early May - - -

PN689

You were aware at least in the Commission proceedings of late April that Corke was the successful subcontractor?---I'm not a hundred per cent that they were actually signed, sealed an delivered on that date.

PN690

You knew, did you not, that arising out of the proceedings in the Commission, you would be having some discussions with Corke with a view to establishing their industrial relations for the site including the issue that was burning at the time, the site representative; correct?---Yes. Correct.

PN691

In relation to these engineering construction projects, it's true is it not that the ETU has pattern agreements with most of the significant electrical contractors who come onto these sites?---That certified agreement underpinning?

PN692

Yes?---Yes.

PN693

Supportive of these industrial relations arrangements you have a, if I could describe it as a jump-up clause, that allows the terms and conditions of a site agreement to apply if they are better than the terms in the pattern agreement; correct?---Yes.

PN694

It's true is it not that your union has constructed a clause which ensures that you get the best of both worlds in the sense you get the best of what is in your pattern agreement and the site agreement; correct?---Usually. Yes.

**** PAUL JAMES COFFEY XXN MR DALTON
PN695

That is the effect of the clause is it not?---Yes.

PN696

Yes, and so you know, don't you, that the Corke employees can't do worse than what is set out in their certified agreement and can do better to the extent that the site agreement at Siemens provides for better pay and conditions; correct?---I don't believe that a hundred per cent, no, because of the overtime clauses in there.

PN697

You are aware of the provision in the site agreement at Siemens which ensures that whatever the superior conditions are will apply on the site; you are aware of that are you not?---That's what it says in the agreement.

PN698

Yes?---But you also have to commit to some overtime which is outside the bounds of our agreement. There's a clause in there - I haven't got the agreement with me but - about Christmas work as well.

PN699

So we are dealing with something that might come up at Christmas?---It just - well, hypothetically speaking if we signed onto the agreement exactly the way it is and Siemens are in a rush to get the job finished and we had to work over Christmas, I'd be back in here if my members didn't want to work over Christmas.

PN700

So your concern is something that might come up in Christmas?--- It's more so the hours of work but there's clauses about the apprentices that we're concerned about as well.

PN701

I'm sorry, I don't understand how you can be adversely affected, how your members can be adversely affected in circumstances - - - ?---We're signing on - if we sign that agreement we are signing on to do extra overtime and more flexible on our hours that[sic] is in our current certified agreement.

PN702

Yes, but you have already given evidence that you're aware of the clause in the site agreement which ensures that you get the better of the site agreement or the certified agreement?---Yes. I have but - - -

PN703

Yes, so it's true isn't it, it follows does it not that if you think your hours of work clause is better in your certified agreement that's what you sign?---No. That's not way I understand it. I understand it that you're making a commitment to work those hours.

PN704

On the question of work you were asked some questions about whether you have had any involvement in directing people not to work et cetera?---Yes.

**** PAUL JAMES COFFEY XXN MR DALTON
PN705

It's true, is it not, that following conciliation when you were last before the Commission, you had a telephone call with Mr Mighell?--- Yes.

PN706

You spoke to him about whether the union would be prepared to accept a position that work proceed as normal with the Corke employees?--- Yes.

PN707

On a without prejudice basis until a meeting could be held in this Commission on Wednesday the 25th; correct?

PN708

MR BORENSTEIN: I'm sorry. Can I have clarification. Is he talking about Corke employees or the other members? I'm not sure because the discussions were about Leonards employees on that day but I'm just not sure whether - - -

PN709

MR DALTON: I'm sorry. No, I'll just clarify. You understood my question to mean when the matter was last before the Commission which is - - - ?---Friday.

PN710

We're moving on, yes. We are not dealing with Leonards, we are dealing with Corke?---Sorry. I thought you were dealing with Leonards.

PN711

I beg your pardon. I thought you understood?---No.

PN712

So yes, I'm putting to you that you had a conversation with Mr Mighell following the last conciliation in the Commission?---The conference we had last Friday.

PN713

On the 20th?---Yes.

PN714

Yes?---Yes. I did have a conversation with Mr Mighell.

PN715

The conversation was to discuss whether the union was prepared to confirm that it would accept the situation where there would be a meeting with Corke in this Commission to try and - - - ?---Yes. But - - -

PN716

To try and - - - ?---- - - the Commissioner - - -

PN717

In the meantime, work would continue as normal; correct you had that discussion?---The work hasn't started so.

PN718

I am not asking whether work has started or not?---You said continue as normal.

PN719

Well, sorry - - - ?---Sorry. It was put to me that some Corke employees start work this week, tomorrow, and we work out the site agreement however long it takes and my advice that I received was that we should look at clause 3.2 - - -

**** PAUL JAMES COFFEY XXN MR DALTON
PN720

No, I'm not asking you about - - -

PN721

MR BORENSTEIN: Perhaps the witness could answer the question. It may not be the answer my friend wants but he has to have - - -

PN722

MR DALTON: Well - - - ?---As I said, it was put to me last Friday that 10 Corke employees - 10 or 12, I'm not sure what it was - start work tomorrow and we have negotiations about the site agreement.

PN723

THE COMMISSIONER: When you say tomorrow, you mean on
Tuesday?---Yes. Yes. Yes.

PN724

Yes, because you are talking - - -

PN725

MR DALTON: Yes, yes. Following - the day after?---Yes, and that we keep negotiating the site agreement and so I got advice off that and - - -

PN726

Sorry, sorry. Could I just stop you there?---Yes.

PN727

Your telephone conversation with Mr Mighell?---Yes.

PN728

Was to discuss whether the union was prepared to go along with that or not; correct?---Yes.

PN729

I'm putting to you - - - ?---Yes.

PN730

- - - that Mr Mighell's response to you was to go back and say that the union will not accept that; correct?---Yes. Correct.

PN731

So it's the position of the ETU, is it not, that there should not be any work performed by Corke employees; correct?---Well, that wasn't mentioned but
Mr Mighell said that we should have a site agreement as per 3.2.

PN732

Yes?---Yes.

PN733

And the position - - - ?---I don't think the actual labour or the - was even mentioned when I spoke to him.

PN734

All right. So if Corke comes on tomorrow morning?---Yes.

**** PAUL JAMES COFFEY XXN MR DALTON
PN735

With 10 employees?---Yes.

PN736

To work?---Yes.

PN737

You will not interfere with normal work being carried out; that's the position is it?---Well, I'd have to get some advice off that but I don't think that's the intent of clause 3.2 either.

PN738

No, your position is this, is it not; you believe that you can rely on this clause that you want to refer to as a basis for saying that no work should be carried out by Corke unless and until you have reached an agreement with Corke;
correct?---Yes. You could say that, yes.

PN739

That is the position of the union, yes?---Yes. We want an agreement. Yes.

PN740

So consistent with that position - - - ?---Yes.

PN741

- - - is that you will be ensuring that no Corke employees will be allowed to perform normal work tomorrow?---No. I didn't say that. You said that. I didn't say that.

PN742

Yes, and I am asking you to answer that question; that's the position is it
not?---No. it's not. You're - what are you saying? Are you saying that I'm not going to allow anyone to work there?

PN743

Yes, I am saying that, tomorrow?---I'm not saying that, no.

PN744

So is your evidence that you will allow Corke employees - - - ?---No. My evidence is I'll have to get advice off that - on that.

PN745

You are not prepared to commit one way or the other?---No.

PN746

In the meantime, while you are not committing you are not prepared to confirm that employees of Corke can work normally tomorrow?---I'm not committing.

PN747

No?---I've just said that.

PN748

Yes, you have to go back to Mr Mighell again, don't you?---Of course.

**** PAUL JAMES COFFEY XXN MR DALTON
PN749

Yes?---You get advice. So do I.

PN750

No more questions, Commissioner.

<RE-EXAMINATION BY MR BORENSTEIN [5.33PM]

PN751

MR BORENSTEIN: Mr Coffey, just briefly. You were asked some questions about your expectations on construction sites like this, arising out of site agreements on the sites and you gave certain answers about site agreements providing the - I'm thinking umbrella, umbrella is the word Mr Dalton used - for the conditions on the site. What is the position where the ETU is not a party to the site agreement; what is the attitude then?---We - sorry, can you say the question again? I'm not sure on it.

PN752

Okay?---Yes.

PN753

You were asked a question by Mr Dalton ?---Yes.

PN754

About the way in which the union views site agreements?---Yes. Site agreements, Yes.

PN755

On these engineering sites?---Yes.

PN756

Construction sites, and you gave some evidence about them being the agreements that apply. What is the position where the site agreement on the sites like this don't have the ETU as a party?---Usually - - -

PN757

How does it work then?---Usually if one of the unions isn't a party, they're usually not a part of the job.

PN758

What about if they are part of the job, if they come on the site?---We usually have negotiations to - and try and fix up whatever problem we do have.

PN759

If those negotiations don't fix a problem, what happens with the contractors who come onsite?---I've never been in a position where it hasn't been fixed.

PN760

Okay. All right?---So it would be hard to answer actually.

PN761

Thank you.

**** PAUL JAMES COFFEY RXN MR BORENSTEIN
PN762

I have no further questions of this witness, Commissioner.

PN763

THE COMMISSIONER: Yes. Thank you, Mr Coffey. You are free to go or remain if you wish.

<THE WITNESS WITHDREW [5.35PM]

PN764

MR BORENSTEIN: Commissioner, we have a document which we wish to tender in evidence which is a deed that was entered into between the CEPU and Corke on 23 February 2005. I seek to tender that.

PN765

MR DALTON: Look Commissioner, I object to this tender on the basis that this is something that could have and should have been provided to us earlier. It might have been something that we would have wanted to ask Mr Coffey some questions about.

PN766

MR BORENSTEIN: So you ..... questions.

PN767

MR DALTON: Well, I mean frankly just handing it to us now, this is not a document that we can confirm the circumstances in which it's entered, et cetera. If it's something the Commission can then - presumably it's been tendered so you can place some weight on it and it's not something that we have had an opportunity to consider as to how it might affect the way we want to run the application, including evidence from Mr Messenger and evidence from
Mr Coffey.

PN768

THE COMMISSIONER: Yes.

PN769

MR DALTON: So I object to the way it's been tendered at the last minute like that.

PN770

MR BORENSTEIN: Well, Commissioner - - -

PN771

THE COMMISSIONER: Given that it is being tendered, as you call it, at the last minute, is it open to me to exclude it?

PN772

MR DALTON: To exclude it?

PN773

THE COMMISSIONER: Yes. In fairness to the other side, is that what you are asking, that I exclude it?

PN774

MR DALTON: Either that or we be given an opportunity to look at it and consider it, and - - -

PN775

THE COMMISSIONER: I understand that part of it. Sorry, I was not - - -

PN776

MR DALTON: We may need to recall witnesses.

PN777

THE COMMISSIONER: Yes.

PN778

MR DALTON: I mean, this is - - -

PN779

THE COMMISSIONER: No, no. I - - -

PN780

MR DALTON: - - - something that they have had in their hands. I am not sure why it was not provided beforehand frankly.

PN781

THE COMMISSIONER: I am sure Mr Borenstein is going to tell us about that but I hear what you are saying. No, I understand what you are saying.

PN782

MR DALTON: Yes, Commissioner.

PN783

THE COMMISSIONER: I am much better placed to - - -

PN784

MR BORENSTEIN: I have no objection to the company having an opportunity of considering this document while we consider the document we have asked for from them but I should remind my learned friend that we asked for information about the case which we would have to meet and we were told that it was unnecessary and that it was not proposed that the company would be providing any witness statements or anything. They would simply provide what was alleged in the application. So we come along, we don't know what we are answering and since we have not been given the benefit of any indication of the evidence that was going to be led and that we are told that the case is simply going to be run as it's presented, we are doing exactly the same thing. It's not the last minute. We have called Mr Coffey, he has given his evidence. We are tendering the document as part of our case. If they want to ask Mr Coffey about it, he's here, he can be recalled. I won't stand in the way of that.

PN785

THE COMMISSIONER: Yes.

PN786

MR BORENSTEIN: But I do object to any criticism that we did not provide details of our case to the other side before we got here, because we were not provided with any information about their case and they are the applicants.

PN787

THE COMMISSIONER: Yes.

PN788

MR DALTON: I don't want to go on about this Commissioner but I mean this is a document that describes the ETU as a party to it. It begs the question why it could not have been tendered through Mr Coffey in evidence.

PN789

MR BORENSTEIN: But what's the difference? You can recall him if you wish.

PN790

MR DALTON: Well, that may be the case, Commissioner.

PN791

THE COMMISSIONER: Yes.

PN792

MR DALTON: If that's what it has come to so - - -

PN793

THE COMMISSIONER: I really do not think - - -

PN794

MR DALTON: - - - we can adjourn so we can consider the document.

PN795

THE COMMISSIONER: Yes. Yes. Yes. All right. There are two documents that are going to be considered by the parties. It is clear that one of the documents is not going to be available tonight and that is the contract between Corke and Siemens and certainly to the extent that there is an objection to the tendering of it, I am not going to uphold that objection. To the extent that there is an objection to the tendering in the circumstances, I am gong to do what I can to ensure that you have appropriate time to consider what this document is. We will adjourn the proceedings. We are going to have to adjourn them until tomorrow at some stage anyhow. I am more concerned about Mr Coffey. He has probably got other things to do than be here.

PN796

MR BORENSTEIN: He will be here.

PN797

THE COMMISSIONER: No, no. I will have to wait until they finish their discussion, you see.

PN798

MR BORENSTEIN: Sorry.

PN799

THE COMMISSIONER: It is all right. I mean, it is probably more important that you have that discussion. It is a question of whether we adjourn to give you time to look at this document and then re-examine Mr Coffey and I would need some indication of how long you would need, or whether we adjourn until tomorrow and proceed tomorrow.

PN800

MR DALTON: Commissioner, we will need some time to get instructions on this document and so an adjournment until tomorrow will allow us to do that.

PN801

THE COMMISSIONER: I need to draw your attention to some restrictions in my schedule tomorrow. I have agreements listed from 10 until 11 and I have another matter at 2.15 and I have a matter that I cannot avoid at all tomorrow after 5 o'clock. So we have to fit in with that arrangement.

PN802

MR DALTON: Perhaps if you have that window between 11 and 2.15. We would hope to deal with any outstanding matters at that point.

PN803

THE COMMISSIONER: Mr Borenstein?

PN804

MR BORENSTEIN: I don't have a problem with that Commissioner, as long as we can have this contract in good time.

PN805

THE COMMISSIONER: Yes.

PN806

MR DALTON: Yes, well we would hope to be able to provide it tomorrow morning.

PN807

THE COMMISSIONER: Before 11 o'clock?

PN808

MR DALTON: Well, yes. As soon as it comes to hand and we would hope we would be able to do it before - - -

PN809

THE COMMISSIONER: Otherwise we will just get another application for adjournment.

PN810

MR DALTON: Yes.

PN811

THE COMMISSIONER: You will put it off until Wednesday.

PN812

MR BORENSTEIN: Perhaps we will have a direction that this contract should be provided to the union by 10.00 am tomorrow and then we won't be delayed - - -

PN813

THE COMMISSIONER: Does one hour give you sufficient time?

PN814

MR BORENSTEIN: Well, we would make do with an hour.

PN815

THE COMMISSIONER: I had better make sure the direction is capable of
being - I mean, I am not..... making impossible directions. And I think Mr Skein is getting some instructions.

PN816

MR DALTON: If you just bear with me one moment.

PN817

THE COMMISSIONER: Yes.

PN818

MR DALTON: Yes. I think we will be able to provide that before 10.00 and on the basis that it be provided to Mr Borenstein, subject to normal counsel confidentiality because of the trade secrets and other confidential material that would be in a contract like that.

PN819

THE COMMISSIONER: There is no objection on that basis. So it is not to the union, it is to you Mr Borenstein, okay.

PN820

MR BORENSTEIN: That is to be by 10 o'clock.

PN821

THE COMMISSIONER: By 10 o'clock.

PN822

MR DALTON: Commissioner, I am instructed in the meantime to ask for an interim order until the matter is adjourned at 11 am.

PN823

THE COMMISSIONER: It is clear to me - I do not need to hear from
Mr Borenstein - it is clear to me that notwithstanding the capacity for the Commission to issue an interim order, it must have the jurisdiction to do so. On what is before me at the moment, I cannot form a view that the necessary jurisdictional facts are there.

PN824

MR DALTON: With respect, Commissioner, I can only submit to you that you can be satisfied that industrial actions have been - by reference to the evidence that you have heard this afternoon ad also, importantly, the information that you have come to know in the course of you handling this dispute. In particular, the last conciliation conference on Friday where you were directly privy to developments there.

PN825

THE COMMISSIONER: Explain to me what it is that is an industrial action. I mean, I understand it is disputed but what I am aware of is precisely what
Mr Coffey said in the witness box. There were allegations being made in the course of the discussions, none of which were admitted. Even if they were it would not take me very far. What I heard on Friday was that employees of Corke were turned away from the site when someone refused to induct them. That is counter to what I have heard today in the witness box in the evidence.

PN826

MR DALTON: I think Mr Messenger gave evidence about what happened there and that's not directly - - -

PN827

THE COMMISSIONER: But it was hearsay on hearsay, in his evidence.

PN828

MR DALTON: Yes, but Commissioner - - -

PN829

THE COMMISSIONER: Now you are asking me to form a view - - -

PN830

MR DALTON: Yes, I am.

PN831

THE COMMISSIONER: - - - about the existence of industrial action based on an allegation - sorry, based on hearsay on hearsay evidence which is contradicted by the union saying that no such instruction was given and they were not even directly aware of Corke employees being on the site. That is as I recall
Mr Coffey's evidence.

PN832

MR DALTON: Well, Mr Coffey wasn't there - - -

PN833

THE COMMISSIONER: No. Exactly.

PN834

MR DALTON: - - - he'd be giving evidence about - - -

PN835

THE COMMISSIONER: So where is the connection between the ETU and the people apparently not being given a site induction?

PN836

MR DALTON: Well, at the very least there is industrial action by the employees. They have withdrawn their labour. They are not working.

PN837

THE COMMISSIONER: That is not my understanding. That is not my understanding at all. My understanding was that the employees had nothing left to do for them and Corke took them off the site.

PN838

MR DALTON: In my submission, Commissioner, the evidence is that - - -

PN839

THE COMMISSIONER: You are asking me to rely on what I heard last Friday and that is what I heard last Friday and if there is any suggestion to the contrary you had better tell me about it because I would like to hear it.

PN840

MR DALTON: Look, Commissioner, I can only rely on what you are aware of through Friday and - - -

PN841

THE COMMISSIONER: Let me say what I am aware of.

PN842

MR DALTON: Yes.

PN843

THE COMMISSIONER: I am aware of a proposal. I am aware of what I proposed to the union that should happen before a meeting on Wednesday and the circumstances were very much as Mr Coffey described.

PN844

MR DALTON: Yes, and you also are aware that that position was rejected after Mr Coffey spoke with Mr Mighell.

PN845

THE COMMISSIONER: Yes, on the basis that - Mr Coffey explained why in the witness box today.

PN846

MR DALTON: Yes, but I am submitting to you, Commissioner, and this is something that you can infer from that, is that the ETUs position is that there won't be normal work carried out in the meantime.

PN847

THE COMMISSIONER: What is normal work?

PN848

MR DALTON: That was the position.

PN849

THE COMMISSIONER: What is normal work?

PN850

MR DALTON: Electrical work by contractors - - -

PN851

THE COMMISSIONER: No, no, no. Look - - -

PN852

MR DALTON: - - -by Corke employees.

PN853

THE COMMISSIONER: I have got before me clause 3.2 which may or may not apply. I have a document which I have not even read, which may or may not apply.

PN854

MR DALTON: Yes.

PN855

THE COMMISSIONER: But if they had application, it seems to me that the question of whether or not industrial action is being taken is much more complex than you are trying to convince me. The fact that employees who are not engaged on the site, not employed by those instructing you, there is no guarantee that those instructing you can instruct those that employ them to do certain things. I mean, where is the evidence that Corke told them to go to work?

PN856

MR DALTON: Just excuse me a moment.

PN857

THE COMMISSIONER: Yes.

PN858

MR DALTON: The only other thing I could add, Commissioner, is simply this. Tomorrow morning our expectation is that the Corke employees who will present for work will not be permitted to work and that that will be because of the ETUs position. Now I would also submit that that is something that you can be satisfied of at this point. That that is exactly what is going to happen.

PN859

THE COMMISSIONER: I cannot be satisfied that Corke employees are going to be there to present for work that Corke is going to require them to work. Where is the evidence that Corke is going to require them to work tomorrow?

PN860

MR DALTON: Well, I think that the evidence was quite clear that they have been required since early May.

PN861

THE COMMISSIONER: No, no. There is evidence that Siemens requires Corke to have them there. But Siemens is not the employer.

PN862

MR DALTON: No.

PN863

THE COMMISSIONER: There is no evidence, and in fact what evidence I have got tends to suggest the contrary because there was the evidence of Mr Coffey which was not challenged that on one occasion the Corke employees were onsite and when he became aware he apologised to Mr Coffey for their attendance there without having gone through the prior agreement process. So that suggests to me the contrary to what you are putting. I am not saying that I am satisfied that there is no industrial action. What I am assaying is the level of satisfaction I am required to have that there is industrial action, to make a finding of the jurisdictional fact, is not there. That is all I am saying. I am not wanting to get into an argument about who is who in the zoo.

PN864

MR DALTON: Yes, Commissioner. We will revisit the matter tomorrow then.

PN865

THE COMMISSIONER: Yes, by all means.

PN866

MR DALTON: We will be in a position to report and give evidence about - - -

PN867

THE COMMISSIONER: There will be whatever evidence there is about that.

PN868

MR DALTON: Yes.

PN869

THE COMMISSIONER: But at the moment on the evidence before me I am not satisfied that I have that; that jurisdiction al facts exist that would give rise to the capacity for me to make an interim order of the kind that you are seeking.

PN870

MR DALTON: If the Commission pleases.

PN871

THE COMMISSIONER: I do not hear an argument and I do not think there is an argument that says that I can issue the interim order absent of that jurisdictional fact.

PN872

MR DALTON: No. You have to have the satisfaction.

PN873

THE COMMISSIONER: The satisfaction of the existence of jurisdictional facts so that is as far as I can take it. We will adjourn until 11 am tomorrow morning.

<ADJOURNED UNTIL TUESDAY 24 MAY 2005 [5.51PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MR GEOFFREY ROBERT MESSENGER, SWORN PN294
EXAMINATION-IN-CHIEF BY MR DALTON PN294
CROSS-EXAMINATION BY MR BORENSTEIN PN393
THE WITNESS WITHDREW PN553
PAUL JAMES COFFEY, SWORN PN557
EXAMINATION-IN-CHIEF BY MR BORENSTEIN PN560
EXHIBIT #B1 EXTRACT OF ENTERPRISE AGREEMENT, CLAUSE 3.2 PN588
CROSS-EXAMINATION BY MR DALTON PN645
RE-EXAMINATION BY MR BORENSTEIN PN750
THE WITNESS WITHDREW PN763