BP2006/3305, Transcript of Proceedings [2006] AIRCTrans 1094 (26 September 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15736-1

DEPUTY PRESIDENT IVES

BP2006/3305

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
AND
SIEMENS LIMITED
s.451(1) - Application for order for protected action ballot to be held
(BP2006/3305)

MELBOURNE

1.13PM, TUESDAY, 12 SEPTEMBER 2006

PN1

MR G BORENSTEIN: I appear on behalf of the CEPU.

PN2

MR M MCDONALD: I seek leave to appear with MR B MUELLER on behalf of Siemens Limited.

PN3

MR BORENSTEIN: No objection, your Honour.

PN4

THE DEPUTY PRESIDENT: Leave is granted.

PN5

MR BORENSTEIN: Your Honour, just in respect to this matter, I have had some discussions before this hearing just then with Mr McDonald. He has raised a number of issues with this application that may, I suppose, take it a bit outside the normal ballot order even though most of them, I suppose, do end up being quite big hearings.

PN6

THE DEPUTY PRESIDENT: They have tended to be a little bit that way, yes.

PN7

MR BORENSTEIN: Yes, they do. I suppose there are a number of hurdles that have to be jumped over and therefore open them up to attack. I'm being advised of what hurdles they’re going to attack us on. It's something that I would like some time to actually research because a couple of them are dealing with questions of law and also deal with facts that probably are a bit outside the normal and therefore it's probably appropriate in this one to possibly have a witness statement prepared for the union and it might be evidence that needs to be - - -

PN8

THE DEPUTY PRESIDENT: You're seeking an adjournment, Mr Borenstein.

PN9

MR BORENSTEIN: I'm seeking an adjournment. I don't want to delay - you know extend it. I understand the Commission is meant to determine it within
two days as far as practicable. An adjournment, I propose, was we have two days to file our material and I think that the employer has done a fair bit of preparation already, but they have two days to file theirs and the hearing is early next week, Tuesday and Wednesday of next week, subject to your Honour's availability and the like. I must say my friend has raised the issue that he's not available, in effect, after today until 28 September I think it was, therefore he wanted it adjourned until 28 September to the time that he's available. We don't want to delay it that long. We're asking for the adjournment but we do not seek to delay.

PN10

THE DEPUTY PRESIDENT: Thank you. Mr McDonald.

PN11

MR MCDONALD: Our preference is to get on with the application, with respect, your Honour.

PN12

THE DEPUTY PRESIDENT: You're opposing the adjournment?

PN13

MR MCDONALD: Yes. It's the union's application and one assumes that, particularly given the regulatory requirements which govern these applications that the union comes here ready to press its case. It bears the onus.

PN14

THE DEPUTY PRESIDENT: I suppose in practical terms, Mr McDonald, it would be open for the union in any event to withdraw its application and make a further application at a time which also may not be suitable to your particular schedule. Maybe if we could work something - - -

PN15

MR MCDONALD: If Mr Borenstein wants to do that, I'll sit down, your Honour.

PN16

THE DEPUTY PRESIDENT: Maybe if we can work something out that suits both parties it might be better.

PN17

MR MCDONALD: Yes. The difficulty Mr Borenstein has alluded to is that I've been retained in the matter and we are ready to go today and unfortunately, I'm not available again until 28 September, so if we can agree on a timetable for exchange of material which would facilitate the matter coming back on 28 September.

PN18

THE DEPUTY PRESIDENT: Mr Borenstein, I'm conscious of the fact that it is your application and it is your request for an adjournment. In the circumstances I'm therefore of a mind to have regard to Mr McDonald's availability. If I grant an adjournment I'm inclined to adjourn it until Mr McDonald is available on the 28th, which puts us what, two and a bit weeks down the track.

PN19

MR BORENSTEIN: I suppose, your Honour, in respect of Mr McDonald, he does have a junior here who also has been briefed on this matter and who can easily take over, in our submission, the matter.

PN20

THE DEPUTY PRESIDENT: Without hearing Mr McDonald on that particular proposition, that may or may not be the case. As I said, it's your application, it's your application for an adjournment. It has been indicated to me by the respondent that they're ready to proceed on the matter. I'm prepared to entertain your application for an adjournment but I do it cognisant of what I've been told of Mr McDonald's availability. You have not objected to leave to Mr McDonald. He's been granted leave in the circumstances so on that basis I would see it appropriate that if I am to adjourn until the 28th - the 28th is a Thursday and subject to one other matter which doesn't look as if it should take that much time, I'm available to hear the matter on that day.

PN21

MR BORENSTEIN: Could I possibly ask for a brief adjournment and I might get some instructions.

PN22

THE DEPUTY PRESIDENT: Yes, as long as it's not for a couple of days, just for five minutes.

PN23

MR BORENSTEIN: That's right.

PN24

THE DEPUTY PRESIDENT: There's no objection to that, is there,
Mr McDonald?

PN25

MR MCDONALD: No, your Honour.

PN26

THE DEPUTY PRESIDENT: All right. We'll adjourn for five minutes.

<SHORT ADJOURNMENT [1.19PM]
<RESUMED [1.26PM]

PN27

THE DEPUTY PRESIDENT: Yes, Mr Borenstein.

PN28

MR BORENSTEIN: Thank you, your Honour. I think we'll press our claim today and continue on.

PN29

THE DEPUTY PRESIDENT: All right.

PN30

MR BORENSTEIN: This is an application for a ballot order to be made by the Commission. As your Honour is aware, a number of requirements have to be met in order to satisfy the Commission that there is a valid application and the ballot order should be made. As I understand it there are - it may well be the best course to at least allow your Honour to know the three sort of areas of concern of the employer, as I've been instructed, and certainly I suppose the hearing will delve out if there are any more.

PN31

As I understand it, the first point of challenge is regarding the ballot application and the second and third last types of industrial action specified in the question. If your Honour turns to the ballot order application, it's there on page 3 of the actual application, I believe, at least listed under the questions to be put and it's regarding:

PN32

The bans on the performance of such work where information about such work is provided to the employee at the employee's residential address.

PN33

THE DEPUTY PRESIDENT: Sorry, whereabouts was it again?

PN34

MR BORENSTEIN: Have you got the ballot order application there? On the second page it's got Questions to be Put.

PN35

THE DEPUTY PRESIDENT: Yes, I've got that.

PN36

MR BORENSTEIN: Basically it's the second and third-last questions in the list of questions:

PN37

The bans on the performance of such work where information about such work is provided to the employee at the employee's residential address.

PN38

This is a ban that is dealing with the situation where the employee has received the work - - -

PN39

MR MCDONALD: I object to that. My friend can't make a commentary on the terms of the application. It says what it says and it says what it says and he can't start saying it's says something other than what it says.

PN40

THE DEPUTY PRESIDENT: No.

PN41

MR BORENSTEIN: I understand it says what it says. I'm just providing some explanation background to the matter and obviously evidence can be led regarding what it relates to.

PN42

THE DEPUTY PRESIDENT: I'll no doubt hear that at the appropriate point in time, Mr Borenstein, so just carry on.

PN43

MR BORENSTEIN: The second one is:

PN44

The ban on the performance of such work where goods and/or parts to be used for such work are provided to the employee at the employee's residential address.

PN45

We say they clearly are specific enough for the purpose of this application, but that's the first avenue of attack from the employer. The second is regarding the allegation that there are two non-pertaining claims and those claims are the reimbursement of parking fines and the reimbursement of bank fees. That's the second avenue of attack.

PN46

The last avenue of attack is that the union has never tabled a proposed agreement and I'm sure that will be further explained by the employer. In any event we will do the best we can to provide your Honour with evidence that alleviates those concerns at the very least. On that basis I might call evidence straightaway and leave further submissions - rather than doing a big opening I'll leave further submissions for the end.

PN47

THE DEPUTY PRESIDENT: That's fine, Mr Borenstein.

PN48

MR BORENSTEIN: I will seek to call Mr Montebello.

<MICHAEL JOHN MONTEBELLO, SWORN [1.31PM]

PN49

MR MCDONALD: Perhaps it would be appropriate if there's an order for witnesses out of court. We have two witnesses who will be covering the same subject-matter, we understand, so perhaps - they are outside. We'll make sure they stay outside.

PN50

THE DEPUTY PRESIDENT: I'll make the order in any event. I assume that you request that, Mr Borenstein?

PN51

MR BORENSTEIN: I'm happy with that, yes, your Honour.

PN52

THE DEPUTY PRESIDENT: Go ahead, Mr Borenstein.

<EXAMINATION-IN-CHIEF BY MR BORENSTEIN [1.32PM]

PN53

MR BORENSTEIN: Could you please state your full name and address for the transcript?---Michael John Montebello (address supplied).

PN54

What is your position at the union?---An ETU organiser official, Victoria branch.

PN55

Do your responsibilities include Siemens?---Yes.

PN56

What involvement have you had with Siemens?---I had some negotiations with Siemens over the course of a few months.

PN57

You have the responsibility for the negotiations with Siemens?---That's correct.

PN58

I might hand a document up to you. Can you explain who prepared that document?

PN59

THE DEPUTY PRESIDENT: Is there a copy for the Commission,
Mr Borenstein?

PN60

MR BORENSTEIN: Actually I do.

PN61

Can you explain what this document is and how it was created?---Okay. There was a meeting of all Siemens Limited employees. We explained to them the negotiations between the union and the employees as we had to present a log of claims to the employer as the agreement that elapsed and we were prepared to then go to set up a meeting with Siemens to negotiate a replacement agreement. So we went through a series of claims. The members then endorsed the claims and at the meeting at Siemens we presented the claims.

PN62

These claims have been presented to the employer, I assume?---They have, yes.

PN63

I suppose in a general way, at the very least, can you explain what negotiations you have had with Siemens?---It's been difficult, given that the ETU's position with Siemens is we wanted to cover all Siemens Limited employees, which is different from what the Siemens' position is. They wanted separate agreements to cover what they call Building Technologies and South East Water. We've objected to this and made that clear initially at negotiations. That was the first problem that we were confronted with along with many other issues in the document they presented to us.

**** MICHAEL JOHN MONTEBELLO XN MR BORENSTEIN
PN64

I might get you to go through each of these - sorry, I withdraw that. Firstly, how many meetings with Siemens have you had for negotiations?---In total at least half a dozen. Depends how you want to describe that: three with Building Technologies and three with South East Water.

PN65

Has any agreement been reached at the end of those meetings?---No. It would be fair to say that we're apart on a number of issues, yes, and an example of that is who in fact the agreement is going to cover and where.

PN66

I might take you to that document that I've just handed up, which I might - do you say that you prepared this document?---This document of claims?

PN67

Yes?---Yes.

PN68

I might seek to tender that, your Honour.

EXHIBIT #CEPU1 LIST OF CLAIMS

PN69

MR BORENSTEIN: I might take you through each of those claims,
Mr Montebello, and if you could explain the ETU's position and the company's position on those claims. The first claim is overtime at double time?---Yes, that's the ETU's position. The company's position is the first two at time and a half so the claim is to increase those - to erode the time and a half penalty and introduce double time for all overtime as a minimum.

PN70

Is there agreement on that issue or not?---No.

PN71

The next point, public holidays at the rate of triple time and day in lieu: what's the ETU's position on that and the company's position?---The ETU's position is triple time and a day off in lieu. The company's position would be double time and a half and no day off in lieu.

PN72

The compensation for bank fees, $15 per week: can you explain that claim and the relative positions?---I guess from the union's and the employees' point of view is that ever since we've gone to electronic banking, they believed that it's come at a cost to them so what they're seeking is compensation and our claim is $15 a week.

PN73

By electronic banking, when you say they've gone to electronic banking, what do you mean by that?---It means that they go to access their pay, because of the transactions, there's bank fees attached.

**** MICHAEL JOHN MONTEBELLO XN MR BORENSTEIN
PN74

Are you saying that the pay is now paid electronically rather than through cash?
---Yes, that's correct.

PN75

THE DEPUTY PRESIDENT: Is there an option, Mr Montebello, that you're aware of?---Well, the agreement that they've tabled to us, in the current agreement, it's got to be by agreement.

PN76

MR BORENSTEIN: What's got to be by agreement?---Whether they get paid electronically or not. In the proposed agreement I'm not quite sure that it actually gives you that option.

PN77

That's the proposed agreement by - - -?---That's the proposed by Siemens.

PN78

THE DEPUTY PRESIDENT: Currently it is by agreement - - -?---By agreement.

PN79

- - - with the individual or with the union?---With the individual.

PN80

MR BORENSTEIN: In respect of the superannuation contribution, what's the ETU's position and the company's position there?---The ETU's position is a minimum of 15 per cent or minimum 150. The company's position in their proposed document is 9 per cent. Their current agreement is nine and minimum 85.

PN81

There's no agreement on that issue?---No, there's no agreement.

PN82

You've negotiated over that issue?---It's just been - the company's position is they're not going to in any way, shape or form consider it.

PN83

Redundancy for apprentices, can you explain the ETU position and the company position?---The redundancy for apprentices, first year respectively five, seven, eight and nine for first, second, third and fourth. The company's position is for the first year four, second year six, third year seven, fourth year eight.

PN84

Has agreement been reached on that?---No.

PN85

The annual leave being five weeks, has the company agreed to that?---No. The problem that we have is that the company's - the accrual between the two documents - and this where it gets frustrating, is the documents at Building Technology provide as opposed to South East Water, one will have an accrual rate for the 36 because I believe they've conceded the 36 now, and the other ones accrue four weeks as well but it's based on a 38, but our claim is five weeks. Theirs is currently four so there's no agreement.

**** MICHAEL JOHN MONTEBELLO XN MR BORENSTEIN
PN86

That claim has been discussed during the negotiations?---Yes. It's just been flatly rejected.

PN87

Living away from home allowance: has that been discussed during the negotiations?---No, not in - no, it's been presented to them in respect to a claim but the last discussions I had with Siemens South East Water, there was nothing agreed. I did question them on the claim aspect before we pardoned the response from South East Water. There's no agreement on any of the claims. That's about as far as we got into the discussion about living away from home.

PN88

In respect of travel and fees, what's that claim about?---What that's about is the company will argue that they provide company vehicles, which they do. There's no argument about that. The fear is if they decide to do something differently, but because they've been flatly rejected, we haven't even got into the discussions or the debate, but in saying that, the employees have forgone a certain provision under the award in respect to compensation even though the employer provides transport, but currently the employer doesn't pay those entitlements so we've put a claim back on the table because there's a complication in a FPT component as well which the company is aware of. We've had some discussions about that.

PN89

The company is aware of that claim and they haven't agreed to it?---No.

PN90

Travel time: what's that claim for?---That's the same thing. The award is a
make-up of two allowances and we're just seeking to increase those allowances. The employees are pretty angered by - on how the tax is done. We understand the company's position is regulatory legislative - Australian tax laws are complicated somewhat. Our member believe they're being disadvantaged in that process so they're seeking to claim it through the travel components under the award.

PN91

THE DEPUTY PRESIDENT: Are these additional to the provision of transport by the employer or are these in lieu of transport by the employer, Mr Montebello?
---Just to clarify it, under the award there's travel time and travel allowance and they're currently a break-up of two allowances. Currently it's, and don’t hold me to these figures exactly, but $5-odd and $2.50 say and that's they're an entitlement under the award, even though the employer provides a vehicle. What's happened in the past is that the employees have forgone those allowances and the argument comes in about the FPT component that they've been penalised. So there was a claim in respect of fares and travel to compensate that.

**** MICHAEL JOHN MONTEBELLO XN MR BORENSTEIN
PN92

MR BORENSTEIN: Did that answer your Honour's question?

PN93

THE DEPUTY PRESIDENT: I'm not sure it does, Mr Borenstein, totally but just continue. At this stage it may not be of any great moment.

PN94

MR BORENSTEIN: The fares allowance, Mr Montebello, can you explain what that compensates for and how that's been negotiated?---The fares allowance is the same thing again. If the company decides to go to a position where the employee provides his own transport, there's a provision in the current agreement what talks about a non-construction type scenario where they have parking, secured parking and what the agreement currently allows for is an allowance. It's in their current agreement now. It's just that there's a claim in addition to that.

PN95

You've raised this claim with the company?---Well, we haven't quite specifically got into the discussions other than we're dissatisfied with the current arrangement in respect to the blokes raising an issue about the tax component.

PN96

THE DEPUTY PRESIDENT: Again, just asking you the same question, I suppose, that claim would only apply in the instance of the company withdrew the current circumstance which is the provision - - -?---Of the vehicles.

PN97

- - - of the vehicle?---That's correct.

PN98

Similarly to the two claims above that?---No - yes. It will have an impact on both. There was another option that we tabled to the employer about maybe we look at a sliding scale in respect to compensation because the way that the tax and the way that they talk about the FPT component, depending on how many kilometres has an impact on how that's calculated. So we talked about maybe introducing some sort of scale and this was just another way of compensation.

PN99

MR BORENSTEIN: These entitlements relate to clauses that are existing in their current document?---These ones would, yes.

PN100

This is just dealing with the amount of the actual allowance that applies to those existing entitlements?---Correct, yes, and we want to introduce the travel time and fares allowance because it currently doesn't apply because it was something that the employees forgo in previous agreements and the boys are saying, "We want to introduce it back into the agreement." So the ability is there.

**** MICHAEL JOHN MONTEBELLO XN MR BORENSTEIN
PN101

THE DEPUTY PRESIDENT: Again, just let me get it clear, you say these things are in the award at least at a particular level, not in the level that you're requesting. They've been - - -?---Forgone.

PN102

- - - essentially traded off in agreements because the company has provided transport?---Correct.

PN103

Now you want them introduced back into the agreement but to apply only in the instance that transport is withdrawn?---No. There will be two scenarios. There will be one where the employer provides transport and the employer doesn't provide transport. In this situation the fares allowance would be where the employee provides his vehicle. The second one, or the travel time and fares allowance, we're looking at either a sliding scale to compensate some fare compensation or we look at the allowances that are already built into the award.

PN104

MR BORENSTEIN: Would the travel time apply whether or not they provide their own vehicle?---Yes.

PN105

But the fares allowance, you say, would only apply where they're providing their own vehicle?---That's right, but we never got there because we couldn't get into the negotiations because of the multiple of issues that we've had. We haven't specifically negotiated because it's just been clearly rejected by the employer.

PN106

But you tabled this claim with them?---Yes, we've tabled this claim. They've had it for a couple of months at least.

PN107

The first aid allowance, is this the same as before in that this is an existing entitlement?---There is an existing entitlement that exists in their current agreement . Obviously we're seeking to move the allowances. We actually didn't get into negotiations about the first aid allowances. There were things that we wanted to particularly talk about and raise but we haven't got there.

PN108

Have they ever said that they'll agree to that?---No.

PN109

In respect to parental leave and carer's leave, 10 days, is that an existing entitlement?---It's - with the new Work Choices I believe there's 10 days. The debate would have been about how much of that would constitute carer's leave, if not all. I'm not sure that everyone's - I know for one, for myself, we would have to look at the new Work Choices arrangement, whether in fact 10, which is personal leave and all that, because it constitutes 10 carer's leave and that's why we wanted to put it as part of the claim.

**** MICHAEL JOHN MONTEBELLO XN MR BORENSTEIN
PN110

Would the same apply to sick leave?---Correct.

PN111

The next one, maternity leave and care giver 12 weeks pay: what's the situation with that?---It's just been clearly rejected by the employer.

PN112

The availability claim which is $300 per week with a minimum of six hours' pay and 12 hour break. Has the company agreed to that?---No, and the same thing again, South East Water pay I think it's 220 and Building Technologies I think pay the minimum 110 so there's a claim for 300 bucks and the minimum six hours which is the award four. As opposed to a 10 hour break we're claiming 12.

PN113

THE DEPUTY PRESIDENT: That's claim relating to an employee holding themselves available for work?---Correct, yes.

PN114

MR BORENSTEIN: The employer response to that?---Is no.

PN115

Severance contribution: can you explain what that claim is for?---It's 85 bucks a week. I think currently it's 55 in their current agreement.

PN116

That's to do what?---It's a severance component that gets paid on a monthly basis on a week's work so it goes into a fund called Protect currently. Their proposed document I believe is 55 which is where it currently exists. Our claim is 85. The other thing is that currently under their current agreement the severance contribution will be paid for casual employees. The document that at least Building Technologies has presented to us, it excludes casuals receiving a severance component contribution so we're apart there.

PN117

The disability allowance $3 per hour all purpose, what's that?---Currently Siemens pay $1.50 so we put a claim in to increase the allowance for certain disabilities that they obviously recognise - that they pay for and recognise now.

PN118

The employer response to the $3 per hour?---No.

PN119

THE DEPUTY PRESIDENT: Sorry, what did you say it currently was?---I believe it's $1.50. Now, I don't know that - it applies to Building Technologies. I'm not quite sure about - I would say no to South East Water but the claim is across for all employees.

PN120

MR BORENSTEIN: The risk allowance?---Yes. There was recognition where the members have been working in industry where certain risks associated with their work has been recognised. A perfect example of that is when they built the prisons and extended the prisons. There was a recognition of an allowance associated to the risk. Our blokes picked that up and said that "We want to make it part of our entitlements," so we put that in the claim. At this stage it's been touched on but there's been no agreement on it.

**** MICHAEL JOHN MONTEBELLO XN MR BORENSTEIN
PN121

The meal break after one and half overtime, 20 minutes?---Yes, currently they don't get a break until they've done at least, I think it's five or six consecutive hours. Our members want to claim after an hour and a half's overtime they get a 20 minute break, pretty standard in a lot of the awards. There's been no discussion and the same thing again, it's just been clearly rejected.

PN122

In respect of wages, what's the company's position been on wages?---2 per cent, They've proposed - Siemens are 2 per cent and depending on the duration, Building Technologies is, off memory, two years, South East Water is three. Our claim is a five year agreement. Their percentage increase is at 2 per cent, ours is seven.

PN123

THE DEPUTY PRESIDENT: 2 per cent per year, is it, Mr Montebello?---Sorry?

PN124

2 per cent per year, is it?---It's six - sorry? Six months, so it would be two increases at 2 per cent. We're claiming 7 per cent.

PN125

You're claiming 7 per cent per year?---Yes.

PN126

They're offering what it is in essence 4 per cent per year. Is that correct?---That's what I understand the agreement says, yes.

PN127

MR BORENSTEIN: In respect of compensation for internet fees?---Yes. There's been some discussion about this, clearly rejected by the employer. Our claim is $60 a month. The company's position is they have a dial-up system and that's what they insist the employees use, but currently the realities are they don't because of the nature of access or whatever, but they say it's more efficient to use broadband so they say, "Well, if it's more efficient for the company, why can't we get an allowance in compensation for that." So we put a $60 claim per month.

PN128

The employees have to use the internet for work purposes at home, do they?
---Yes. They use the dial-up system or that's what Siemens have allowed - or opened up some sort of account where they dial up which the company covers, no argument about that, but because of the efficiencies and how dial-up in comparison to the - - -

PN129

THE DEPUTY PRESIDENT: You say it's a mandatory requirement of the company that the employees are linked to the internet. Is that what you're saying?
---It's part of what they need to access for certain information.

**** MICHAEL JOHN MONTEBELLO XN MR BORENSTEIN
PN130

It's a mandatory requirement of the company that they should have access?

PN131

MR BORENSTEIN: Mr Montebello, just listen to his Honour?---Sorry, yes.

PN132

Direct your answers to - - -?---Okay. My understanding is that Siemens offer them a dial-up system.

PN133

THE DEPUTY PRESIDENT: Yes, I understand what you said about that. What I'm asking you really is, is it your understanding that it is a mandatory requirement, that is that the company requires employees to be able to link into the internet?---Well, my understanding - - -

PN134

Such that an employee doesn't have a choice in other words, is what I'm asking you?---Okay. My understanding is that for them to perform their work, they would have to access the system. That's the way I understand it.

PN135

MR BORENSTEIN: It's probably information that the employees certainly might know and I might have to - - -?---Yes, we'll get that clarified if need be.

PN136

In respect of the parking fines compensation claim, can you explain to his Honour what that matter is about?---I sometimes open with the - talk about the CBD area, I guess, for a perfect example of it, is that depending on where they need to work and where their client is based in the metropolitan areas, it might be more efficient for them to park their vehicles to unload material or equipment or whatever. In the course of their work trying to do that, to be more efficient, they sometimes - unfortunately they may get booked for the purpose of trying to be more efficient so what the members are saying, "Well, if that's the case why should we be fitted up with the fine?" So it was a claim that went to Siemens.

PN137

THE DEPUTY PRESIDENT: It's not a matter for this witness, Mr Borenstein, necessarily, but that, if I recall correctly, is a matter that I dealt with as part of a Full Bench at one point in time as to whether such a claim was a matter pertaining to the employment relationship and I may be wrong, it might have been something similar to this, so don't hold me to it necessarily, but if I recall correctly we did come to a conclusion that it was not a matter that pertained.

PN138

MR BORENSTEIN: I will try and find that decision. I did do a search for parking fines on the Commission website and nothing came up.

**** MICHAEL JOHN MONTEBELLO XN MR BORENSTEIN
PN139

THE DEPUTY PRESIDENT: Yes. I'm just trying to remember what the decision was or who it was. I think it was an AMWU matter and if memory serves me correctly it was Marsh SDP presiding but I can't recall any more details than that. I do recall that we did deal with these sorts of issues, the parking fines, traffic fines, et cetera, and the conclusion we reached was that they weren't matters pertaining.

PN140

MR BORENSTEIN: I'll have to have a look at that, your Honour.

PN141

Moving onto the next one, Mr Montebello, the site allowances, what's that about?
---Certain projects and depending on the nature of the project, may attract certain site allowances as they currently exist in their current agreement. What we wanted to do was to make - because the document that they've presented to us doesn't include site allowances.

PN142

It doesn't?---Doesn't, doesn't allow for. So what we've explained is that we want to include obviously site allowances and make sure that, yes, they receive the entitlement.

PN143

The last one, all allowances to be increased by 7 per cent?---Yes. What that would mean is anything that is not referred to specifically in an allowance - because there are other awards - allowances attached to the agreement and the award, that they would move in line with the percentage wage increases to keep them relative which has been rejected by the employer.

PN144

Sorry, your Honour, there's draft proposals that have been put by the two divisions of Siemens which it might be useful for your Honour to have now rather than when. I assume they would have been tendered by my friend when he calls his witnesses. I only now have one copy.

PN145

THE DEPUTY PRESIDENT: Do you want to have those copied,
Mr Borenstein? I can adjourn briefly and have them copied if you wished to go that way.

PN146

MR BORENSTEIN: That might be a good idea.

PN147

THE DEPUTY PRESIDENT: You don't have sufficient copies, Mr McDonald?

**** MICHAEL JOHN MONTEBELLO XN MR BORENSTEIN
PN148

MR MCDONALD: No, I'm sorry we don't.

PN149

THE DEPUTY PRESIDENT: I'll adjourn briefly while my associate makes copies of the relevant documents.

PN150

MR BORENSTEIN: Thank you, your Honour

<SHORT ADJOURNMENT [2.01PM]
<RESUMED [2.15PM]

PN151

MR MCDONALD: Your Honour, just before my friend resumes his examination-in-chief, can I just raise one matter flowing from the observation you made about the - which I understand to be the Full Bench decision in respect of reimbursement of fines. It does occur to us that if your Honour's understanding is correct, then the Full Bench decision is binding on you - - -

PN152

THE DEPUTY PRESIDENT: Mr McDonald, I actually had intended to come in here and have some conversation with you exactly to that effect at this stage. I was considering whether I would allow Mr Borenstein to finish his examination-in-chief before I did so. But as you've raised it - - -

PN153

MR MCDONALD: I just say it does occur to us that - - -

PN154

THE DEPUTY PRESIDENT: If I'm right, Mr Borenstein, then it seems to be all over red rover, not to put too fine a point upon it, because if there is authority that that particular claim is a matter that doesn't pertain to the relationship, then obviously protected action cannot be taken in support of that particular claim and it will follow from that that a ballot that authorised protected action would not be authorising action in support of such a claim.

PN155

It would seem to me that if my recollection is correct, and it may not be, it might have related to speeding fines only - I can remember that speeding fines got a run at the time - I would have to say, however, that even if that was the case, that it only related to speeding fines, you would probably have a fairly high hurdle to convince me that a claim for a parking fine could somehow be distinguished as something different and as a matter pertaining in the circumstance. I don't want to waste a lot of everybody's time because it would seem that if that's the case, and it would seem that if these are the claims in support of which you intend to take industrial action, then one claim that offends means that - - -

**** MICHAEL JOHN MONTEBELLO XN MR BORENSTEIN
PN156

MR BORENSTEIN: Your Honour, I accept that if we actually do take protected industrial action that it can't be in support of - if it's proven to be prohibited content, that it can't be taken in support of that, but as your Honour is aware, especially in the Wormald matter where there was allegations of prohibited content as well, and in that matter it was held that - we're not seeking that there be prohibited content in the final agreement

PN157

THE DEPUTY PRESIDENT: These have been put forward as the claims in support of which industrial action is intended to be taken, are they not?

PN158

MR BORENSTEIN: These are claims that have been raised during the - that have been involved in the negotiations. We can't deny that.

PN159

THE DEPUTY PRESIDENT: If you are successful in getting your order, and the ballot took place and the industrial action followed, it would be industrial action in support of these claims.

PN160

MR BORENSTEIN: Yes, it's only if we - - -

PN161

THE DEPUTY PRESIDENT: If that is the case - - -

PN162

MR BORENSTEIN: Then it can't be - - -

PN163

THE DEPUTY PRESIDENT: - - - and one of those claims is a non-pertaining matter, then that in my view is sufficient to prevent you getting your order.

PN164

MR BORENSTEIN: As with Wormald there was alleged prohibited content claims in that - - -

PN165

THE DEPUTY PRESIDENT: Yes, there was. That's right.

PN166

MR BORENSTEIN: - - - and we still got the order.

**** MICHAEL JOHN MONTEBELLO XN MR BORENSTEIN
PN167

THE DEPUTY PRESIDENT: Yes, except there was a difference in that, Mr Borenstein, in that the - first of all you had made it known to the employer at various stages of the negotiation, if my memory serves me correctly or at least that was the submission, that - no, it was not just a submission, it was a fact as I found that you did not intend to pursue claims that were prohibited. Certainly there were also circumstances, as there well may be here, by the way, where there is some contest over a matter, whether it's a pertaining matter or not, but all I'm saying is that, if there is a matter that clearly doesn't pertain and there is authority to that effect, as I think there is, again subject to it being checked, then I think that is sufficient for me to say that an order of the type sought can't issue because it would be an order which would purport to authorise protected action whereas the action would not be protected because it can't be protected because the claims for which it is in support of contain a claim which is a non-pertaining claim. That's a fairly longwinded statement but I think you get where I'm coming from.

PN168

Just before you respond to that, I cut you off, Mr McDonald, a bit rudely. Is that in essence what you intended to say?

PN169

MR MCDONALD: It was, your Honour, and your Honour would no doubt be aware that the recent line of authority within the Commission confirms what your Honour is saying, the Blue Circle decision of Watson VP and the Cadbury Schweppes decision of Acton SDP made clear that you cannot be genuinely bargaining within the terms of section 461 if part of the subject-matter is prohibited content.

PN170

THE DEPUTY PRESIDENT: Yes. We can spend a lot of time about the other arguments and it may well be wasted. It seems to me that that one is a stand-out and I've already stated a number of times now I'm of the view that it's already been ruled upon by a Full Bench. It may not and it might have been something similar. In any event, I would have to say to you upfront that you're going to have a fair bit of a problem convincing me that it is a matter that pertains in the circumstances.

PN171

MR BORENSTEIN: I accept that, your Honour, but my friend refers to some authority but firstly, a ballot order isn't about saying you can take protected industrial action. There's no question before your Honour in determining whether a ballot order should be made that prevents a person seeking prohibited content. There's nothing in the legislation in that division that says you cannot seek prohibited content. If you do, you can't get a ballot order.

**** MICHAEL JOHN MONTEBELLO XN MR BORENSTEIN
PN172

THE DEPUTY PRESIDENT: Yes, but the order is an order for a ballot for protected action. Here, clearly, if there is such a provision in the claims, you cannot have protected action. I think that's really the issue, Mr Borenstein.

PN173

MR BORENSTEIN: Yes, but if you withdraw that claim subsequent to the order being made - because there's a long period that can occur and events can occur subsequent to this ballot order. If such a claim is withdrawn, then protected industrial action can be taken in the absence of that claim.

PN174

THE DEPUTY PRESIDENT: But the only thing that is before me,
Mr Borenstein, is this log, if you like.

PN175

MR BORENSTEIN: I understand that.

PN176

THE DEPUTY PRESIDENT: It is that that will determine whether or not I make the order. And I must be cognisant to the extent that I am able to be of the nature of those claims because the order that I would issue would be an order allowing for a ballot for protected action. It can't be one if I'm already of the view, on the basis of what is before me, that part of that claim is for something which is not pertaining to the relationship. That's really the point.

PN177

MR MCDONALD: We've found that decision. I'm happy to provide you with a copy of it.

PN178

THE DEPUTY PRESIDENT: Did you do what I - - -

PN179

MR MCDONALD: The relevant claim is:

PN180

And in addition pay any fines incurred by the employee whilst using the vehicle on the employer's business.

PN181

And the conclusion at paragraph 15:

PN182

We agree with the appellants that the essence of the claims that the employer is required to discharge the employees' personal legal obligations arising from a breach of the applicable traffic laws held to be non-pertaining.

PN183

As to my friend's submissions, really with respect, he's missing the point. The point is under section 461:

PN184

The statutory scheme directs attention to two things, that is during the bargaining period has the applicant genuinely tried to reach agreement with the employer.

**** MICHAEL JOHN MONTEBELLO XN MR BORENSTEIN
PN185

The bargaining period commenced on 20 July, that's when the notice was served, and secondly, is - that is as at today's date - the applicant genuinely trying to reach agreement with the employer. On both scores, both the decision of Acton SDP and Watson VP, a clear authority for the proposition that the test in 461 is not satisfied if there's prohibited content. There's no argument about this. I guess we can bite the bullet on it and we can just - if he's going to press on we can make a no case submission.

PN186

MR BORENSTEIN: Your Honour, in respect of that. there's conflicting authorities and your Honour, the question before your Honour is whether the union has genuinely tried to reach an agreement. There's Federal Court authority that genuinely trying to reach agreement can be any form of agreement. It's not confined to a statutory agreement and that's the TAB case with Madgwick J and he clearly finds that genuinely trying to reach agreement involves all forms of agreements whether it be statute, state or Commonwealth. The phrase "Not genuinely trying to reach agreement" does not mean you have to genuinely try to reach an agreement that doesn't include any prohibited content.

PN187

THE DEPUTY PRESIDENT: We're getting now heavily into submissions and I didn't want to do that necessarily at this point in time. I pulled matters up because I also don't want to waste a lot of time and a lot of resources unnecessarily. It might be worthwhile if we do have some brief period of time off the record to discuss this, if there's no objection to that course of action.

PN188

MR BORENSTEIN: Can I just note that in the Wormald appeal case by
Giudice J and Lawler VP in transcript quizzed Mr Mueller, who would be aware of this, and the decision will show, we hope, that had the effect and showed the intent that they were accepting of the situation where an innocent party might be seeking prohibited content. We're in a situation where (1) it’s not clear, and we understand there might be a Full Bench authority, but it's certainly not a
well-known authority.

PN189

THE DEPUTY PRESIDENT: I think with respect, Mr Borenstein, let's close off at that and I'll have some further discussion about it in conference with you. I'm pretty familiar with the Wormald decision, as you know, because it was my decision but we can discuss that further off the record if there's no objection to that. We'll go off the record briefly, thanks.

<SHORT ADJOURNMENT [2.27PM]
<RESUMED [2.37PM]

PN190

MR BORENSTEIN: If your Honour pleases, I'm instructed and advise that we withdraw our application for a secret ballot order, without admission of any of the positions put by the employer in this matter but we have decided to withdraw our application forthwith.

**** MICHAEL JOHN MONTEBELLO XN MR BORENSTEIN
PN191

THE DEPUTY PRESIDENT: Anything, Mr McDonald?

PN192

MR MCDONALD: No, thank you, your Honour.

PN193

THE DEPUTY PRESIDENT: The matter is adjourned. Thank you.

<ADJOURNED INDEFINITELY [2.37PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MICHAEL JOHN MONTEBELLO, SWORN PN48
EXAMINATION-IN-CHIEF BY MR BORENSTEIN PN52
EXHIBIT #CEPU1 LIST OF CLAIMS PN68