BP2006/3471, Transcript of Proceedings [2006] AIRCTrans 1155 (20 October 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15889-1

DEPUTY PRESIDENT IVES

BP2006/3471

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
(BP2006/3471)

MELBOURNE

9.32AM, FRIDAY, 06 OCTOBER 2006

Continued from 28/9/2006

PN31

THE DEPUTY PRESIDENT: I note there doesn't seem to be any change to the appearances, is that correct?

PN32

MR BORENSTEIN: No, your Honour.

PN33

THE COMMISSIONER: Mr Borenstein.

PN34

MR BORENSTEIN: Thank you, your Honour. As your Honour is aware, this is an application for a secret ballot order and your Honour is somewhat familiar with these provisions, having done these before. There are a number of I suppose technical requirements that need to be satisfied before your Honour can make a ballot order for there to be a ballot conducted to assess whether or not the employees wish to take industrial action or wish to be able to take industrial action.

PN35

I might just give a few opening comments before bringing the evidence, but I won't seek to labour them too long. It would be nice if we could finish these things today. The first point I wish to make is that the purpose in conducting this hearing, we urge the Commission to follow the purpose of these provisions and to understand the purpose of these provisions which is to facilitate a vote of the employees as to whether they wish to take industrial action or whether they wish to be able to take industrial action and that is how the object of the division regarding ballot orders reads and that's what the explanatory memorandum that was prepared in respect to these provisions, that is what that seeks to have as the purpose of these provisions.

PN36

These provisions are meant to be facilitative in that they want to facilitate a secret ballot process and in some decisions and some arguments put by employers in this matter, they seek to take away the focus of the Commission from the actual determination of the object of actually having a secret ballot process of the employees and, rather, seek to turn it into an examination of prohibited content and a detailed examination of the negotiations in respect of each and every claim and to see whether one claim is justified or not and I have a feeling that that's the attempt that's going to be made in this matter, your Honour, from the evidence presented so far.

PN37

We would submit that that is not the object of the division and we say it wasn't the intent of parliament to have the parties go through a lengthy process of re-opening every word said in the negotiations and every claim put and have that under the microscope. It certainly goes against the idea that these matters are meant to be heard and determined within 48 hours of the application being made and we understand that there is a requirement to show that a party has been genuinely negotiating, but we say that doesn't require the Commission to again put every word said, every claim put under the microscope in this type of hearing.

PN38

That type of question is left for another day under different provisions and different divisions of the Workplace Relations Act, but this is not about whether or not prohibited industrial action can occur. This is about whether or not employees want to be able to - whether employees want to be able to have access to be able to take industrial action. If they vote it up, (1) they don't have to take the industrial action, (2) even if they vote it up doesn't mean the action will actually be protected. There are other requirements that have to be satisfied that will be equally applicable after the ballot order has occurred.

PN39

We're calling one witness today and that's Mr Montebello and his evidence does go - his second statement which I might hand up, I've just provided to my friend this morning and I'll hand up a second statement to your Honour and I'll just make sure that your Honour has got the first witness statement of Mr Montebello.

PN40

THE DEPUTY PRESIDENT: Yes, I do.

PN41

MR BORENSTEIN: And I think there's approximately, or there is 11 attachments to that document. I do have a spare copy here.

PN42

THE DEPUTY PRESIDENT: If you've got a spare copy, then hand it to me, Mr Borenstein, because the other one I've got which is complete, but it's in a folder and it will just save me a bit of trouble pulling it all out.

PN43

MR BORENSTEIN: A previous occasion of this matter was before your Honour, but was subsequently discontinued and that was in early September. Since that time, I might just take you to a couple of the documents so your Honour understands the background at least to this proceeding. If I could take you to attachment 8 to Mr Montebello's statement.

PN44

THE DEPUTY PRESIDENT: That's the first statement, is it?

PN45

MR BORENSTEIN: The first statement. Sorry, your Honour.

PN46

THE DEPUTY PRESIDENT: Attachment 8, you said?

PN47

MR BORENSTEIN: Yes, attachment 8. There's no page numbers, unfortunately.

PN48

THE DEPUTY PRESIDENT: Is it towards the back?

PN49

MR BORENSTEIN: Yes, it's towards the back. It's about 10 pages or so from the back.

PN50

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

PN51

MR BORENSTEIN: And you'll see there that this letter was sent after the first application was made and discontinued and the letter makes clear that the ETU does not seek any prohibited content to be in its claims and it also notes that at no time did Siemens ever raise any issue regarding prohibited content during the negotiations. You'll see there that the two - the prohibited content that was raised at the hearing by the employer for the first time was regarding parking fines and reimbursement of banking fees.

PN52

Both those claims are withdrawn by that letter. The union also makes clear that it doesn't have any intent to actually include any prohibited content in a workplace agreement and if it mistakenly does so, it seeks that Siemens would advise it of it, but there is no intent to have any claim for prohibited content and consistent with that, it states that any such agreement will go to the OEA for approval prior to lodgment and clearly we make the submission that unfortunately the prohibited content provisions in the Workplace Relations Act I think could not be said to be black and white. There's certainly a lot of grey within those terms.

PN53

THE DEPUTY PRESIDENT: I think a fair bit of time was spent in this place and various others trying to work out what was a matter pertaining and - - -

PN54

MR BORENSTEIN: Very true, but in respect to the actual express provisions of prohibited content, they certainly are a new concept and certainly not in a black and white way and even with matters pertaining, it can be argued about new types of claims and - - -

PN55

THE DEPUTY PRESIDENT: I think the High Court had an argument with us once or a Full Bench. They won.

PN56

MR BORENSTEIN: That's right, and it is always open to interpretation unfortunately and as we found out, there had been Full Bench authority regarding parking fines. Regarding banking fees, I don't think there is any authority and that's just another example of the grey that I suppose industrial participants have to face, so certainly we submit that the ETU is an innocent party, does not seek to force the employer to agree to any prohibited content and consistent with that, we say that if there's any doubt, the OEA will have to vet the agreement and clear it for lodgment, as it has the power to do under the Act. Also we raised in that letter to say that - - -

PN57

THE DEPUTY PRESIDENT: It's not my understanding, Mr Borenstein, that the workplace advocate has the power to determine absolutely what prohibited content is.

PN58

MR BORENSTEIN: No. It just gives you - you cannot be - it removes the liability implications for including prohibited content into workplace agreements. If an employer lodges a workplace agreement with prohibited content, the agreement still exists and it applies as a normal agreement would and the prohibited content is void in effect and doesn't apply, but the rest of the agreement does, so even if you have an agreement that is - you can reach an agreement with prohibited content in it and it still can be lodged and still comes into force. There's a penalty provision, though, that says if you lodge an agreement with prohibited content in it, then you're liable for a fine set out in the Act, but if you actually before that refer it to the OEA and they say it's clear, in their view it's clear of prohibited content - - -

PN59

THE DEPUTY PRESIDENT: A bit like a taxation ruling.

PN60

MR BORENSTEIN: Yes, correct, and you therefore cannot be liable for including it in the document, but certainly it's not a ruling as to whether something is prohibited content.

PN61

THE DEPUTY PRESIDENT: No.

PN62

MR BORENSTEIN: I think the OEA also has the ability once it's in there to actually make - even though it's void, actually make an application, I'm not sure whether it's to the Commission or to the Federal Court to actually have it removed from the document. We also raise in that document that the existence of these prohibited content has in no way affected the negotiations and we say that these claims have not provided a road block at all in respect to these negotiations and taken up minimal time of the parties in such negotiations.

PN63

We also raise the issue that was raised at that previous application that because the union hadn't put forward a formal draft agreement, that somehow that could be said to be the union wasn't genuinely trying to reach an agreement and it's certainly our position that the company have produced a draft agreement and that was used as the basis for the negotiations, as is a normal occurrence in these matters. It's certainly not for the parties to - for one party to draft their agreement and then another party to draft a different agreement and then the two parties are at loggerheads.

PN64

It's a normal course of events for there to be a base agreement and the parties negotiate from that base with people putting forward claims to amend that document, so we certainly say that the requirements of drafts, to have a formal draft agreement is not valid.

PN65

You'll see that - it will be raised that the union is - that somehow what the company calls a generic agreement that's been negotiated quite separately and independently from Siemens, but with another employer called Downer Engineering who with the assistance of the National Electrical and Communications Association, Siemens is trying to make some assertion that that document is the claim of the union against Siemens, despite the fact that nothing has been claimed by the union for Siemens to actually agree to that document and you'll see in the evidence that clearly this is an attempt by Siemens to try and somehow create evidence for a proceeding like this and you'll see that all the instigations of talking about this document was by Siemens and they'll say how is your negotiating with NECA going regarding this generic agreement.

PN66

Trying to get Mr Montebello to speak about it and Mr Montebello will say to them, well, give them an update, where it's at and they say can we have a copy and he says, well, I'll give you a copy if you sign a confidentiality agreement because we want to keep this thing confidential because we're still negotiating it, but at no time does Mr Montebello raise it and say, look, this is what we want, this is our somewhat generic agreement which wasn't in existence, but this is our generic agreement and this is what we want, but we're not willing to give it to you, we'll actually tell you what is in it, but yet I've got a log of claims here which I'm negotiating on and that's what the parties have focused on, so it's quite a strange position being put by Siemens in this respect in that Mr Montebello presents them with a log of claims which has nothing to do with the generic agreement and doesn't raise it, yet they try and infer somehow that Mr Montebello is actually seeking that and we just say that obviously this has arisen in an attempt to block this type of application.

PN67

THE DEPUTY PRESIDENT: Mr Borenstein, can I suggest we save the detail part of the submissions until after we've heard evidence from the parties? I don't want to cut you short in any way as far as your submissions are concerned, but they may be more appropriately made after we've heard evidence.

PN68

MR BORENSTEIN: If your Honour pleases. I've just come from a Federal Court matter where a QC went on for two hours in his opening address, but I'll have to - it's probably not appropriate in this type of situation and I must say I didn't enjoy the address that he gave, I have to say.

PN69

THE DEPUTY PRESIDENT: I don't think there was any mandate from the Federal Court that you should do likewise here.

PN70

MR BORENSTEIN: No, that's right. In any event, I would probably also seek that your Honour have a look at attachment 10 where we actually set out the claims that still remain. At paragraph 4 of the letter, we set out the claims that are still in existence between the parties and we ask the company now that you're clear that we're not seeking any generic agreement, does that change the focus of the company and the letter is provided back and clearly there is no change and we say the reason that there is no change is because the generic agreement was just not relevant to the negotiations.

PN71

THE DEPUTY PRESIDENT: Yes, go ahead.

PN72

MR BORENSTEIN: I might without delaying it any more, I will call Mr Montebello.

PN73

MR MCDONALD: Just before that occurs, your Honour, can I just deal with a couple of housekeeping matters?

PN74

THE DEPUTY PRESIDENT: Yes.

PN75

MR MCDONALD: We wrote to Mr Borenstein on 29 September to the effect that we would be calling for production today of what he has just referred to as the generic agreement and we indicated if there was any problem with that, he should let us know, in which case we would seek to have a subpoena issued for production of the document. We didn't hear that there was a problem with that, so we assumed that Mr Borenstein is in a position to produce the document and I would call for production of it.

PN76

THE DEPUTY PRESIDENT: Mr Borenstein.

PN77

MR BORENSTEIN: Your Honour, I don't have an objection to producing it. I have forgotten to actually bring it along. I am just trying to think - - -

PN78

THE DEPUTY PRESIDENT: Is it possible if I adjourn briefly that you could make a phone call and have it delivered at some point?

PN79

MR BORENSTEIN: I might be able to get it actually emailed.

PN80

MR MCDONALD: We may be able to short circuit it.

PN81

THE DEPUTY PRESIDENT: You've got your own sources?

PN82

MR MCDONALD: We have, but the advantage of Mr Borenstein producing the document is there's no issue then as to its authenticity and status. We could simply show Mr Borenstein the document which we have and which we understand to be the generic document and if he can confirm that to be the case, then we won't have to trouble the email.

PN83

THE DEPUTY PRESIDENT: Yes.

PN84

MR MCDONALD: So perhaps if Mr Borenstein could have a chance to run his eye over that.

PN85

THE DEPUTY PRESIDENT: Yes.

PN86

MR MCDONALD: And the only other issue was I think it's appropriate that there be an order for witnesses out of court when Mr Montebello gives his evidence.

PN87

THE DEPUTY PRESIDENT: Yes, I order accordingly. Would the witnesses for the respondent please remove yourselves from the court? If I can ask you just to remove yourselves far enough away from the court room doors that you're out of hearing range, please. Thank you.

PN88

MR BORENSTEIN: Your Honour, I believe that it would seem the same, if not very similar. The document is not in a final format as we speak, but there is latest versions going around, so I think that would be very similar to the latest version as in existence at the time. There is no document in existence I suppose called a generic agreement or signed by NECA.

PN89

THE DEPUTY PRESIDENT: There's no final version? Is that what you're saying?

PN90

MR BORENSTEIN: No, there's no sort of official final version, but we have been negotiating this document with a contractor called Downer Engineering, but haven't signed off on it as of yet, still being fine tuned in minute ways, but I think the substance of that could be seen to be at least the latest version of the negotiations.

PN91

MR MCDONALD: Perhaps if there is that slight qualification, if Mr Borenstein can arrange for it to be sent up during the course of the day. We don't need to delay now, but if he could make arrangements for the document to be sent up during the course of the day so we can be precise about it, because as he's indicated, this is we say a substantive issue in the proceedings and if we can have clarity about the matter, I think it's appropriate that we do that.

PN92

THE DEPUTY PRESIDENT: Yes.

PN93

MR BORENSTEIN: I just want the document to be accurately reflected. The terms of the document that my friend has will be very similar, if not the same, as the document that has been negotiated between the ETU and NECA and Downer Engineering.

PN94

THE DEPUTY PRESIDENT: Just to cut the matter short, Mr Borenstein, if I adjourn for five minutes and give you an opportunity to make a call, then you can arrange for that document to be electronically provided perhaps to my associate at some stage during the morning.

PN95

MR BORENSTEIN: Yes.

PN96

THE DEPUTY PRESIDENT: And then copies can be made and given to the parties.

PN97

MR BORENSTEIN: I am happy for questions to be put to Mr Montebello using the document - - -

PN98

THE DEPUTY PRESIDENT: Is that suitable for you?

PN99

MR MCDONALD: That's suitable. Just for the sake of completeness, could I just tender the correspondence that was sent to the ETU which identified the document that we were seeking?

EXHIBIT #SIEMENS2 CORRESPONDENCE

PN100

THE DEPUTY PRESIDENT: I will adjourn for five minutes to allow Mr Borenstein to make the appropriate arrangements.

<SHORT ADJOURNMENT [9.57AM]
<RESUMED [10.04AM]

PN101

THE DEPUTY PRESIDENT: Just before you go ahead, just one minor matter, really just to do with the building. There are a number of conference rooms, as you've probably seen around the area. If those conference rooms are not occupied, they're available for parties at any time when there are adjournments or when you need to confer. I thought I'd just let you know.

PN102

MR BORENSTEIN: Thank you, your Honour. I notice that the TVs aren't working, though.

PN103

THE DEPUTY PRESIDENT: No, I hadn't got that far advanced with the place yet, Mr Borenstein, to know that.

PN104

MR BORENSTEIN: I will seek to call Mr Montebello, if your Honour pleases.

<MICHAEL JOHN MONTEBELLO, SWORN [10.05AM]
<EXAMINATION-IN-CHIEF BY MR BORENSTEIN

PN105

THE DEPUTY PRESIDENT: Thanks, Mr Montebello. You can be seated.

PN106

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

PN107

What is your current position?---My current position is an industrial organiser employed by the CEPU electrical division.

PN108

For the purposes of these proceedings, have you prepared two statements?
---That's correct.

PN109

Going to the first statement which is just headed statement of Michael John Montebello, have you got that in front of you there?---Yes, I have.

PN110

Have you read that document recently?---I have.

PN111

Are the contents of that document true and correct?---That's correct.

PN112

I seek to tender that, your Honour.

EXHIBIT #ETU1 WITNESS STATEMENT OF MICHAEL JOHN MONTEBELLO

PN113

MR BORENSTEIN: And, Mr Montebello - - -

PN114

THE DEPUTY PRESIDENT: Sorry, Mr Borenstein, presumably that includes all of the attachments from 1 through to 11?

PN115

MR BORENSTEIN: Yes, your Honour.

PN116

THE DEPUTY PRESIDENT: Thank you.

PN117

MR BORENSTEIN: Mr Montebello, have you got in front of you the document headed second statement of Michael John Montebello?---Yes, I have.

PN118

Have you read that document recently?---Yes, I have.

PN119

Is that document true and correct?---That's correct.

**** MICHAEL JOHN MONTEBELLO XN MR BORENSTEIN
PN120

I seek to tender that as well, your Honour.

EXHIBIT #ETU2 SECOND WITNESS STATEMENT OF MICHAEL JOHN MONTEBELLO

PN121

MR BORENSTEIN: Just a note for your Honour. We have prepared that statement in response to the statements put by the applicants. It's as comprehensive as we could do, but I can't say that we replied to each and every allegation made in their statements and so I would seek that certainly Mr McDonald put any conflicts between the two to Mr Montebello. We've tried to address as many as possible, but I don't wish that to be held against me for me not raising it with Mr Montebello in this matter, but I have no further questions for Mr Montebello.

PN122

THE DEPUTY PRESIDENT: Thanks, Mr Borenstein. Mr McDonald.

<CROSS-EXAMINATION BY MR MCDONALD [10.09AM]

PN123

MR MCDONALD: Now, you've had a chance to read the statements filed by the company of Ms Prince and Mr Handakas before you prepared your statement in reply?---That's correct.

PN124

And you've seen, no doubt, what Ms Prince says about your evidence at paragraph 16 of your first statement. Just have a look at that if you would, 16 and following onwards?---Yes.

PN125

This is referring to the log of claims and a meeting of 11 July with the BT division?---That's correct.

PN126

And your evidence is that you presented your log of claims attached to the statement during the course of that meeting. Is that your evidence?---That's correct.

PN127

Ms Prince has pointed out in her witness statement that in fact that document, the log of claims, was not tabled until - it wasn't tabled, it was sent to the company I think her evidence is by email about nine days later and was not tabled at all at or prior to the meeting on 11 July. That's correct, isn't it?---What happened on 11 July was that as we progressed through ..... that we went through their document and presented the claim ......

PN128

So that's how paragraph 16 is to be read, that you didn't physically produce the log of claims which is attachment 1 to your statement? Just have a look at attachment 1 if you would. Attachment 1, there's a resolution and then there's a document headed claim Siemens Ltd. Are we to read paragraph 16 of your statement not as being evidence that you physically tabled that two page document, but, rather, that during the course of the meeting, you made reference to those matters in response to matters raised by the company?---That's correct.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN129

And do you accept Ms Prince's evidence that in fact that document which is the log of claims was not presented, the document itself was not presented to the company until 20 July, when it was emailed?---No. That is correct.

PN130

Thank you, and in fact, and I put this to you, Mr Montebello, no doubt you've seen the attachments to Ms Prince's statements being the minutes of the meeting. Have you seen those? Have you had a chance to look at those minutes?---I have, yes, seen them.

PN131

And you'd agree with me they are very comprehensive minutes, aren't they?
---......

PN132

I think it's fair to say that apart from the specific matters you've referred to in your reply statement, generally you seem to accept the accuracy of those minutes as a record of what was said during the course of the meetings, subject to the specific matters you've referred to in your reply statement?---..... .

PN133

Can I put this to you and I don't want to take up the Commission's time by going right through the detail of it, but can I suggest to you that if you go to - have you got Ms Prince's statement there with you?---No.

PN134

I wonder if we could just hand you a copy of Ms Prince's statement, please. Does the Commission have that document?

PN135

THE DEPUTY PRESIDENT: Yes.

PN136

MR MCDONALD: If you go to tab 2, do you see the tab numbered 2 behind the statement?---Yes.

PN137

These are the minutes of the meeting of 11 July and it's a six page document. Can I put it to you that if you - the numbers that run down the first column on the left-hand side, so we've got an entry number and then on the first entry we've got clause 3 and then over the page 4, 5, 6 and so on through to the last number recorded is number 17 on page 5. Can I suggest to you or put to you that what that's a reference to are clause numbers in the proposed agreement which had been tabled by SBT prior to the meeting on 11 July?---I would say that .....

PN138

You might have gone a bit further into the agreement?---.....

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN139

Put that to one side. Do you agree that what's been recorded in the minutes is discussion in respect of the company's proposed agreement?---.....

PN140

THE DEPUTY PRESIDENT: I will adjourn briefly to allow the transcript recorder to - - -

<SHORT ADJOURNMENT [10.16AM]
<RESUMED [10.20AM]

PN141

THE DEPUTY PRESIDENT: Yes, go ahead.

PN142

MR MCDONALD: Just prior to the adjournment, Mr Montebello, we were at tab 2 behind Ms Prince's statement which is the minutes of the meeting of 11 July and I had put to you that what those minutes record are discussions in relation to the SBT proposed agreement and if you'd turn to tab 5 behind Ms Prince's statement, that's the - can I suggest to you, I'm not going to ask you to read the document, it's a lengthy document, but can I put it to you that that's the proposed agreement that was the subject of the discussions? Do you accept that?---I accept that, yes. That's correct.

PN143

On my reading of the minutes and I stand to be corrected, Mr Montebello, but on my reading of the minutes of the meeting of 11 July, the matters which I could identify as being matters on your log of claims, attachment 1 to your statement, which were raised during the course of the meeting on 11 July were the seven per cent per annum pay increase. That's referred to on page 5 of the minutes in respect of clause 16?---Sorry, clause 16 did you say?

PN144

Page 5 of the minutes at tab 2?---Yes.

PN145

Do you see second from the top, clause 16?---That's correct, yes.

PN146

You refer to the seven per cent and also the five year duration?---That's correct.

PN147

On the first page of the minutes at clause 3 in terms of scope, clause 3, discussion of scope of the agreement?---Yes.

PN148

You've referred to the fact that the union was seeking a single agreement for Siemens rather than having two separate agreements for the two divisions, SBT and IAC, correct?---That's correct.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN149

And the one other thing that I could identify from your log of claims on page 5 of the minutes in respect of clause 17, the third item, you made reference to the union's claim to delete attendance pay, but to have an all purpose allowance. Do you see that?---That's correct.

PN150

Now, other than that, I can't - I've not been able to identify any other matters from your log of claims which were raised by you during the course of the meeting on 11 July?---If you refer to our statement, we spoke about other clauses contained in the proposed agreement, that talked about - because there were some certain clauses that seemed acceptable.

PN151

Yes?---We also talked about clause 11, contract of employment for casual employees.

PN152

I'm focusing attention on the matters in your log of claims?---Okay, right.

PN153

Matters in your log of claims which were discussed during the meeting on the 11th and I am putting to you, giving you the opportunity to dispute, but so far as I can see from the minutes of the meeting on 11 July, the matters on your log which were discussed were seven per cent pay claim, five year duration and scope of agreement and also an all purpose allowance in lieu of attendance allowance?
---The other clause that we spoke about was the classifications.

PN154

The classifications? Now, I don't have copies of this, but I'll make it available to the Commission when I get a chance, your Honour. Can I just show the witness a document? Is that the clause you tabled during the meeting?---Yes, that seems the one, yes.

PN155

And this was what the union was putting forward as being a classification clause in lieu of what the company was proposing in the agreement at tab 5 of Ms Prince's statement?---We tabled it because we understand that building technologies employ people that perform security work.

PN156

Yes?---It was also fair from the employer's point of view that the classification that we'd proposed only covered a percentage of their employees. What we did say was that not excluding their proposal and their agreement, yes, we tabled it for them to consider given that they employ people that perform that work and we understand and accept it doesn't cover the nature of all building technologies.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN157

This document, I wonder if I could just hand up a copy to the Commission so the Commission knows what we're talking about.

PN158

THE DEPUTY PRESIDENT: Sorry, I'll just take you back a bit, Mr McDonald. There's three claims that you raised as being in the log of claims and raised on 11 September were the seven per cent - - -

PN159

MR MCDONALD: Seven per cent, five year duration.

PN160

THE DEPUTY PRESIDENT: Where is that actually in the log of claims, or am I looking at the wrong document?

PN161

MR MCDONALD: I might be making an incorrect assumption that the five years is in the log of claims. It doesn't actually seem to be in this document. In fact, your Honour, what is slightly confusing, if you go to attachment 7 of Kathy Prince's statement - - -

PN162

THE DEPUTY PRESIDENT: Tab 7?

PN163

MR MCDONALD: Tab 7 of Kathy Prince's statement, her evidence is this is the document which was actually emailed on 20 July and you'll see - and it differs somewhat from attachment 1 to Mr Montebello's statement and you'll see that on the second page of the Kathy Prince attachment you've got five instalments of seven per cent.

PN164

THE DEPUTY PRESIDENT: And the other two items were?

PN165

MR MCDONALD: The other two items were - there was an all purpose allowance in lieu of an attendance allowance. Well, although there's reference to a number of allowances on page 2, it doesn't seem to be specifically referred to. Mr Montebello, have you got Ms Prince's statement there?---Yes, I have.

PN166

Can you just have a look at tab 7 to that statement?---Yes.

PN167

You'll see that there do seem to be some differences between that document which Ms Prince is going to give evidence is the document that was forwarded on 20 July?---That would be the one that was sent on 20 July.

PN168

Okay, so the document which is attachment 1 to your statement is what is an earlier version perhaps of that document?---That would be correct.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN169

Which wasn't actually the one which was put on the company? Well, just looking at tab 7, Mr Montebello, it does appear that the only matters which have been canvassed during the course of the meeting on 11 July in terms of the union's log of claims directly articulated is the claim for seven per cent, five year agreement, seven per cent increase and that's it. If you look at page 6 of the minutes of the meeting, have you got the minutes of the meeting there? Go to the final page?
---Page 6?

PN170

Yes, the very last entry at the top of the page on page 6, it records:

PN171

MM commented they didn't want to see any cashing out of RDOs, they wanted changes -

PN172

?---Hang on, I'm on the wrong page.

PN173

Kathy Prince, tab 2?---Sorry, tab 2, yes.

PN174

The last page, page 6, the top of the page:

PN175

MM commented they didn't want to see any cashing out of RDOs. They also wanted changes to the living away from home allowance. MM commented he would table a chart for entitlements for maternity leave, sick leave and for overtime, all overtime to be paid at double time.

PN176

I am correct, aren't I, that that's the extent of the reference to your log of claims?

PN177

THE DEPUTY PRESIDENT: Well, the living away from home allowance is referred to, Mr McDonald, on the first page of KP7, so it would appear, would it not, that the two items of the increases and the time frame of those increases in the second item is the living away from home allowance?

PN178

MR MCDONALD: Correct, your Honour, yes.

PN179

So it's fair to say, isn't it, that at least as at the meeting of 11 July, you really hadn't got into the detail of your log of claims, had you?---No. What we were doing was referencing off the employer's document that we agreed would be the basis of the negotiations. We accepted that as the document and what we did for the time that we spent at that meeting was to go through each clause and put our claims across to the employer where it referred to the agreement.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN180

Now, just in terms of that document that I've just put to you a moment ago, that's the ETU classification structure and I've handed a copy of that to the Commission, so you can confirm that's the document that you've tabled during the meeting on the 11th?---This was tabled on the 11th, yes.

PN181

Can that be marked, if the Commission pleases?

PN182

THE DEPUTY PRESIDENT: Yes. That's the document headed draft?

PN183

MR MCDONALD: Yes.

EXHIBIT #SIEMENS3 DRAFT ETU CLASSIFICATION STRUCTURE DOCUMENT

PN184

MR MCDONALD: Now, you indicated to the company that that document was the result of negotiations that you had had I think in 2005 with the employers in the security industry?---It was negotiated, what I recall is it was negotiated, there was representatives from Siemens, I think his name was Jack Molnar and I will stand corrected if that's not the correct pronunciation and Nick and his surname escapes me, but, yes, we did sit down and it was negotiated and discussed.

PN185

You accept, don't you, that that document in terms of the SBT employees who were the subject of discussions on 11 July, that document could only be relevant to those employees who were employed in the security stream?---That's correct.

PN186

And that SBT in fact has two streams of employees. There are those in the security stream and those effectively in the building stream?---Yes, that's correct.

PN187

And that document has got no relevance to those?---That would be correct.

PN188

So what was the union proposing in relation to the building stream employees who wouldn't be covered by that document?---What we wanted to do was our position to the company was that we wanted the company to recognise to have in the agreement that covered the employees of Siemens, to be covered by the award, that covered the classification in the award, so where this document didn't pick up those employees outside of this, they would be simply picked up by way of the award and I'll just go on to say we did also stipulate to the company that we would consider their classification that they attached to their agreement. We didn't exclude it and at this point in time, even though we have some difficulties with some provisions or terms in that classification, it's still negotiable.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN189

So what SBT had done in its proposed agreement that it put to you was to - it had drafted specific classifications based on what employees that it actually employs, the work they were doing, correct?---That's correct.

PN190

And as I understand your evidence, the union's position is that you've got an open mind in relation to that insofar as it covers people who aren't covered by the document that you've got in front of you?---Yes. I guess what we're saying is that our document in respect to that work that's performed by Siemens' employees, it's more relative and aligned with the award.

PN191

The security employees?---The security employees.

PN192

As opposed to the building employees?---As opposed to what I believe are the refrigeration - that do refrigeration mechanical.

PN193

Refrigeration mechanical, air conditioning?---Air conditioning, that's correct.

PN194

So that aspect is still open to negotiation?---That's correct.

PN195

Can I put this issue to you, just a general point, Mr Montebello? You received from both SBT and IAC their draft agreements and I've taken you to one there. That's the draft agreement of SBTs attachment to Ms Prince's statement and you've seen Mr Pancakes' statement. Similarly there was an IAC proposed agreement, correct?---That's correct.

PN196

And you got those, the evidence is you got the SBT proposed agreement on 4 July and you got the IAC proposed agreement on 26 July. You don't quibble, thereabouts?---I can't strictly remember the exact date.

PN197

Now, both of those agreement adopted the approach of incorporating into the body of the agreement those terms of the industry award which SBT and IAC considered to be relevant to their particular operations, that's correct?---That was our argument, yes, that's correct.

PN198

I think you used the description in one of the meetings of a pick a box approach, that they had picked out of the award those clauses they felt were relevant to them?---In the classifications, yes.

PN199

Not just classifications, just generally?---Generally, yes.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN200

In general, yes, and it's fair to say, isn't it, that that approach was something that the union was concerned about?---Along with the members, yes.

PN201

The ETUs preferred position was to have the industry award minus prohibited content annexed to the certified agreement?---Yes, that's correct.

PN202

Correct?---Correct.

PN203

Nevertheless, in discussions with SBT on 11 July, that's recorded in the minutes at KP2, Mr Borenstein who was with you at the meeting did indicate that he would look at those provisions which have been included in the SBT proposed agreement and check them against the award. Do you recall that?---I don't recall that.

PN204

Just look at page 3, tab 2, to Ms Prince's statement and if you see the entry in relation to clause 11, towards the bottom of the page, just above the sub-heading casual employment, GB, that's Geoff Borenstein commented he would check our award inclusions, so what Mr Borenstein is saying there is that records him saying that he would check those provisions which have been incorporated into the SBT proposed agreement, check them against the award and presumably the point is if there's anything additional which the union felt should go in, you'd advise the company of that?---I don't recall.

PN205

You don't recall?---I don't recall that, no.

PN206

You don't recall, but you don't dispute that there was a discussion to that effect?
---There was always a discussion and it was always a concern of the members on the proposed agreement being very limited and restricted. The members along with the union have always indicated we wanted to incorporate the whole award without the prohibited content on the basis that there was questions raised to both SBT, what if they engaged a TV installer, that installed TV antennas? Their response was that we'd be covered by the agreement, the problem being is if you reference the proposed document, it wouldn't, no different to South East Water. We said what about if you're in a position to employ an electrical fitter? They said that we wouldn't necessarily employ one. Our response to that was, well, sometimes that's not always determined by yourselves, it may be the client or something that we're unaware of may present itself where you'd be in that position.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN207

All right. Well, in the meeting that followed the 11 July meeting with SBT, that meeting took place on 26 July and those minutes are to be found at tab 3 behind Ms Prince's statement and if you go to page 9 of those minutes, please, and you'll see the sub-heading incorporating the award and there was some discussion about that issue and there's the reference to MR, that's Matthew Rait, an employee of SBT and MM is yourself and you'll see about two-thirds of the way through that paragraph:

PN208

MM advised that what he would do is grab a copy of the agreement with prohibited content taken out -

PN209

I think that in fact should be the award with prohibited content taken out -

PN210

as there may very well be disagreement in only a few areas such as interstate work. Matthew Rait the queried MM about why he wouldn't have already done this through a checking process. MM advised that if he hadn't, he wouldn't have come back to us on casual issues and the interstate work issues.

PN211

So what the minutes seem to record there, Mr Montebello, is that there's this issue about incorporation, you've raised some concerns about some clauses in the award which haven't been incorporated which you think should be in there, for instance in relation to interstate work and you've said that what you're going to do is you're going to check the SBT agreement against the award to identify whether there are other clauses in the award which you say should be going into the agreement, correct?---Correct.

PN212

Can I suggest to you, without taking you to the minutes, I'll take you to them if you take issue with me, but can I suggest to you that with the meeting with IAC a couple of days later on 28 July, you said you'd go through the same process, to see if there were additional clauses which should be incorporated into the IAC agreement?

PN213

THE DEPUTY PRESIDENT: Sorry, who is IAC?

PN214

MR MCDONALD: IAC is the other division. There's two divisions within Siemens. One is described as SBT. IAC is otherwise referred to as South East Water and is the second stream.

PN215

Do you accept that, that you adopted a similar approach with IAC?---Yes, but the problem being that - - -

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN216

Can you just answer the question? Do you accept that, that you adopted the same approach in your discussions with IAC, that is you said you would check their proposed agreement against the industry award to see whether there were additional award provisions which you said should be incorporated into the agreement? That's right, isn't it?---Yes.

PN217

Thank you. Now, can I put it to you that, in fact, when we've reached the point that the negotiations have concluded and I think the last meeting with SBT was on 15 September and the last meeting with IAC was on 1 September, you in fact never completed that review, never undertook that review which you said you would of comparing the award against the agreement and saying to the company, look, here's the list of provisions which we say are in the award and you should have in the agreement and put them in? You never did that, did you?---Our position was - - -

PN218

Answer the question, please. It's a simple question and - - -?---I'm trying to answer the question.

PN219

All right. Well, it's a yes or no question. I'm putting to you fair and square and you've agreed that in your meetings with SBT and your meeting with IAC, you undertook that you would carry out a review of the award against the agreements and I am putting to you straight and I'd like you to answer yes or no, that by the time the meetings with these two divisions had concluded, you had never undertaken that review and presented the list of award provisions which you said should go into the agreement?---I would say that's incorrect.

PN220

Well, I put it to you, Mr Montebello, that that's clear as crystal when you read the minutes, that you were taken to task. I put it to you that there was a fairly robust exchange - - -

PN221

MR BORENSTEIN: Your Honour, is there a question?

PN222

THE DEPUTY PRESIDENT: He is putting the question in an - - -

PN223

MR MCDONALD: I put it to you that there was a robust exchange during the final meeting with SBT on 15 September - sorry, 15 August, on 15 August there was a robust exchange between yourself and representatives of the company as to why it was that you had turned up at the meeting on 15 August and you hadn't undertaken this review which you had said you would do. Do you agree with that?---No.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN224

I'll be more specific, that Mr Rait said to you you couldn't be bothered to do this review, Mr Montebello, and your response was, no, you know, I took the view we were too far apart. That's what you said, isn't it?---That was only part of the response that I gave. You're being very - - -

PN225

You agree that those words were said?---You're being very selective.

PN226

I am putting - - -

PN227

THE DEPUTY PRESIDENT: If you just answer the question, Mr Montebello. If there are areas that Mr Borenstein believes need to be returned to in re-examination, it's available to him to do that, so if you just confine yourself to answering Mr McDonald's question.

PN228

MR MCDONALD: So you accept that that exchange took place, didn't it?
---Not for that reason.

PN229

You accept that those words were said, correct?---Not all, no.

PN230

Well, do you accept that Mr Rait said to you in the context of an exchange took place regarding this question of award incorporation and you were asked whether or not - the issue was raised whether or not you had undertaken the review that you said during the meeting on 26 July you were going to undertake and Mr Rait said to you words to the effect, what, could you not be bothered? Mr Montebello responded with words to the effect, no, I thought we were too far apart. That was said, wasn't it?---It was said, but not for that reason.

PN231

Well, people's reasons for saying things, Mr Montebello, may or may not be relevant. I'll just confine myself to what was said. I put this to you, Mr Montebello. In fact, at this meeting on 15 August with SBT when you had this exchange with Mr Rait that I have just put to you, you stated that the ETUs position on award incorporation was that you wanted the entire award minus prohibited content incorporated into the agreement?---That's correct.

PN232

And when you met with IAC on 1 September, you actually brought to the meeting a document which you stated to those who were in attendance was a copy of the award with the prohibited content taken out and that's what you wanted to have incorporated into the agreement, correct?---That's correct.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN233

Now, can I just hand you this document? I'm about to hand the witness a copy of the document that - - -

PN234

THE DEPUTY PRESIDENT: We have the three copies made of the ones that Mr Borenstein got, had sent through. You may want a moment or two just to see where the differences lie.

PN235

MR MCDONALD: I will note that document. I will hand if I may the witness my version of the document. If you go to that document, go right to the end of the document, Mr Montebello. See the last page in the document, page number 61. The last page in the document is numbered 61, go to the last page?---The last page?

PN236

Yes, the last page.

PN237

THE DEPUTY PRESIDENT: You've obviously got multiple sources for your documents.

PN238

MR MCDONALD: So it seems. I will open it at the page for the witness. I've just opened in front of Mr Montebello, your Honour, appendix K to what we describe as the generic document. The document which Mr Borenstein has kindly provided for us does have an appendix K which is the last five pages of the document being the index to an award, but the body of the award has not been produced. Now, as we understand it, that does in fact exist and Mr Borenstein seems to be nodding. I don't think that's a matter of controversy, but what I am taking Mr Montebello to is simply the pages which follow on from appendix K.

PN239

THE DEPUTY PRESIDENT: Which is the award minus the content.

PN240

MR MCDONALD: Minus the prohibited content.

PN241

Mr Montebello, just take a moment to have a look at appendix K and take as much time as you like, but I think if you go through the terms of the index there, you'll see appendix K, award terms, application and operation of award and you'll see under clause 2 arrangement, various clauses have been omitted and so on throughout the index you see at various entries provisions have been omitted?
---That's correct.

PN242

What that's a reference to is the omission of prohibited content, correct?
---That's correct.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN243

So this is the industry award minus prohibited content, correct?---To the best of my knowledge, that's what it is.

PN244

Can I put this to you, that the document which you had with you when you met with IAC on 1 September was in fact that document, a copy of the industry award minus prohibited content, correct?---That's correct.

PN245

And that was your demand on the company, that that's what you wanted included in the agreement, correct?---That's correct.

PN246

Thank you. Might I have that document back, please, and I would ask that the document that Mr Borenstein has forwarded to us be marked as an exhibit.

PN247

THE DEPUTY PRESIDENT: There are actually two documents that I have here.

PN248

MR MCDONALD: Yes.

PN249

THE DEPUTY PRESIDENT: One is the ETU and Downer Electrical - what appears to be - I assume you're not seeking to have that - - -

PN250

MR MCDONALD: We would ask that both be marked, please.

PN251

THE DEPUTY PRESIDENT: Separately or together, Mr McDonald?

PN252

MR MCDONALD: They can be marked together.

EXHIBIT #SIEMENS4 DOCUMENT WITH TITLE PAGE DOWNER ELECTRICAL PTY LTD ETU ENTERPRISE AGREEMENT 2006-2010 AND STANDARD DEED DOCUMENT 2006-2010

PN253

MR MCDONALD: Now, can I take you please back to the meeting with SBT on 15 August and can I ask you please to turn to the minutes of that meeting which are at tab 4 and if you go to the bottom of page 2 of the minutes, the start of the last paragraph at the bottom of page 2:

PN254

MB reminded MM that one of his agreed actions was to come back to us with advice on his review of the award clauses SBT had incorporated into the agreement. MM advised that when talking about the award, he wanted everything in it and that he now had the award document stripped of all prohibited content.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN255

That's the document I've just referred you to, isn't it?---That's correct.

PN256

MM added that he thought we were too far apart for him to have done the work and if we were going to pick a box, then it was us who had created the work, therefore we should go back and prove the definitions were all there.

PN257

That's a reference to the definitions in the award, correct?---That's the definitions in the award, yes, correct.

PN258

MM advised that he didn't mind going through our document, but that it wasn't pick a box, it takes hours, if not months, if not years.

PN259

Now, your reference to it takes hours, if not months, if not years, that's you indicating to the company representatives that if you're going to go through the process of checking the agreement, the SBT agreement against the award to see what's been left out which should be in there, that it was going to be a very lengthy process?---Well, we wanted to - - -

PN260

Is that correct?---Along with the members - - -

PN261

Could you just answer that question? I'll just ask the question again. What you're putting to the company, the statement it takes hours, if not months, if not years, that if there was going to be this process of comparing the SBT agreement against the award to see what had been left out which you felt should go in, it was going to be a very lengthy process. That's a simple question?---It would have been a lengthy process.

PN262

But not that lengthy, Mr Montebello, and I appreciate that in negotiations, there's a bit of scope for a flourish now and then, but when you said to the company it takes hours, if not months, if not years, what you're saying to the company is you're highlighting your willingness to simply frustrate this process for as long as you can if the company doesn't play ball. That's right, isn't it?---No. What we're saying was that the easiest way from our point of view was to incorporate the award.

PN263

THE DEPUTY PRESIDENT: Mr Montebello, perhaps if you as I said before confine yourself to the question. Mr Borenstein will have an opportunity in re-examination, if he believes it's relevant and appropriate, to come back to these issues and allow you the opportunity to elaborate.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN264

MR MCDONALD: Now, can I ask you do you have there Mr Handakas' statement, Mr Montebello?---No, I don't.

PN265

You don't? We'll provide you a copy of that and could I ask you just to go to tab 3 of that statement, please? These are the minutes of the meeting with IAC on 4 August 2006. Have you got those in front of you and the process - can I suggest to you what the minutes record is the process which is being followed here is similar to what we've seen with SBT, that you were using the IAC draft agreement as the basis for discussion?---That's correct.

PN266

And the minutes record in respect of the various clauses in the IAC proposed draft agreement, record the discussion?---Correct.

PN267

I wanted to suggest to you that if you look in the right-hand column throughout the minutes of this meeting, you'll see that in respect of a number of clauses, you are recorded as having agreed or indicated your intention to undertake certain steps, so on the first page we see in relation to clause 17, redundancy, that the minutes record that they, I think that's the union, did not want the limitation on who redundancy applied to to be specified in some cases, eg. a fixed term and so on and you've indicated that you would check out the wording and presumably what you're proposing there is perhaps to come back with a modified form of words?---Well, my understanding, what I recall was we went through that clause and all we were seeking to do was delete those - where it indicated that those employees would be excluded to any form of redundancy and as far as I knew, that was it.

PN268

Yes, but then if you look in the next paragraph under redundancy at the bottom of the page, when it was pointed out to them, that's the union, that most of the wording came from their award, as our aim had been to introduce as little change as possible, MM said that we were negotiating a whole fresh agreement and therefore we should not be bound by that, so you in fact were proposing a change in the formulation which had come out of the award, is that right?---Hang on.

PN269

Take your time. I don't want to be unfair about this. There's a lot of detail. It seems to be a natural reading of what's recorded there, that there was this discussion about the award, the company is saying we picked up this provision out of the award in relation to redundancy. You're saying, well, we're negotiating a fresh agreement, our hands aren't tied by that and you're suggesting that you might come back with a tweaking of the award formulation which has been put into the IAC agreement?---Well, we did with our claims. It refers to an enhanced redundancy for apprentices.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN270

Okay, that's fine, and again I don't think this is terribly controversial, but if you look throughout the rest of the minutes, we've got clause 18, transmission of business, clause 21, quality assurance, clause 23, environmental and public health responsibility. In each instance the minutes note that you've said you're going to check the wording, so that's the wording in the company's proposed agreement and presumably if you're not happy with it, you're going to come back with something else, correct?---Well, what my recollection of that clause is about is they were proposing using the words quality assurance programs, that we'd have to consider it later.

PN271

Yes, all right, and if you go over to page 3, clause 25, inclement weather, the minutes record that there was a discussion in which you indicated that there was a document in existence which had been negotiated between the union and NECA which dealt with the issue of inclement weather, but you've said, the minutes record that you've said that that document itself might need revision?---That's correct.

PN272

And you've agreed that you would provide a copy of the document, correct?
---That's correct.

PN273

And then clause 29, right of entry, the minutes record that you said that you would do some work on that clause. Presumably you weren't happy with the right of entry clause proposed by the company, correct?---That's correct.

PN274

Now, can I put to you that before the meeting which followed on from that meeting on 4 August, the next meeting which in fact was the final meeting with IAC was on 1 September, Ms Domello, Yvette Domello, who is IACs HR manager, she actually made contact with you and asked you whether or not you had had the opportunity to follow up on these various things that you said you would so that they could be dealt with at the next meeting. Do you recall her making contact with you to that effect?---I don't recall it.

PN275

I put it to you that she did and that you indicated that, you know, yes, you had, you had addressed those various issues. You don't recall a discussion along those lines?---I don't recall that, no.

PN276

I put to you that in fact when it came to the meeting on 1 September, you hadn't addressed any of those issues at all. You hadn't done any of those things that you said you'd do. That's right, isn't it?---What we did do was work through some of the clauses and we gave them the words to the effect that it covered certain things such as apprentices, so some of the words that needed to be included in the agreement were only minor changes.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN277

What I am putting to you, Mr Montebello, let me be clear about this, you never - you certainly never provided to the company a document which said, right, in relation to these clauses as recorded in the previous minutes, redundancy, transmission of business, quality assurance, environmental public health responsibility, right of entry, you never provided documents to the company, right, here's what we say it should say, did you? There's no document in existence. If there was, we would have seen it?---No.

PN278

And I am going further than that. I am putting to you that not only did you not produce a document, you didn't even have a position in relation to these matters, did you?---Yes, we did, not in all, but in totality we did have a position.

PN279

THE DEPUTY PRESIDENT: Well, could it be assumed, then, Mr Montebello, that where you say you would check something or where it is said that you would carry out a check of wording, that where there was no response back to the company from you, that you therefore had no issue with the wording that the company proposed in the first instance?---No, that wouldn't be right, but what we did do, your Honour, is as we were working through the document, we were seeking the changes.

PN280

Yes, but if you were going to check it and you had not provided a response to the company subsequent to that check, then how was the company to be in a position to know what the ETUs position was in respect to that item?---Well, they didn't until we met on that day.

PN281

MR MCDONALD: When you met on the next occasion, Mr Montebello, I am talking here about IAC, following on from this previous meeting where you said you'd do all of these things, look at tab 4 if you would behind Mr Handakas' statement and I've got minutes of the meeting here and this is the meeting where you've already agreed you came along to the meeting and you indicated that you had the appendix K document, the award minus the prohibited content, you had that and that's what you wanted, then there was then some discussion about - there was some reference to the generic agreement and you are recorded in paragraph 4 there as stating that their agreement was one issue away from being assessed by OEA as being co-compliant. I think Mr Handakas' evidence is that in fact the reference to OEA should be DEWA. A couple of weeks prior, they were two issues away, but now they're very close. Mr Handakas says in response that that's no real indicator, as the remaining issue could be a very significant one. You then say that one agreement was the goal, then there's discussion about scope and you say in the fourth paragraph in response to Ms Domello saying that a separate agreement for South East Water is non-negotiable, you said they were wasting time, but to get some value out of the meeting, we should go through the individual items of their claims and that's your log of claims you're referring to there, isn't it?---That's correct.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN282

And then Mr Handakas' evidence will be to the effect that it was then you quickly skated through the log of claims, the items on your log of claims. The minutes record that Mr Handakas refused the majority of the claims, said:

PN283

There could be movement on wage increase, meal allowance payment within parameters, while on availability -

PN284

I think that's availability allowance, that depended on the total picture, so there wasn't really - correct me if I'm mistaken, but if I can put this to you. On the face of the minutes, there wasn't any discussion at all following on from the previous meeting regarding the terms of the SBT agreement. Things had very quickly got to the pointy end, so to speak, in terms of your log of claims. That's what happened, isn't it?---We spoke about the one agreement, the one agreement that we always made clear to the employer, both SBT and South East Water, that we never conceded what we wanted was an agreement that covered all Siemens Ltd employees which is something that has yet to be resolved, as the employer, Siemens, is still pursing separate agreements. We say they're the one employer which I guess it would be fair to say over the course of the series of meetings, but we haven't been able to resolve that issue by way of negotiations. In respect to - we went over the classification stuff again, about how it's restricted and somewhat narrowed, that our members believe that an illustration of where Siemens go with splitting the company as they have proposed in their documents, meaning that one part of Siemens Ltd employees will receive the 36 as opposed to South East Water being on a 38, for an example, so it would be fair to say that we did discuss those things. We also went through the claim that we spoke about, the generic agreement was something that came out of the blue. It wasn't us that raised the issue about the generic agreement on the day. It was clearly something that Tom Handakas raised. We did say in comment just answer the question, that, yes, it's in the process of being approved by DEWA, but reminded that in no way was that the agreement we were seeking, so we go into that debate, then to progress things, because it seemed to be a stalemate on a number of issues that we were apart on, so it was clear in my mind and clear for the members that the log of claims that we presented to the employer, that we had no agreement on and that was really then the extent of the meeting.

PN285

The document that you referred to in the previous minutes in relation to inclement weather, that document does exist, I take it, the NECA ETU document. There is such a document?---There is such a document, yes.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN286

Can you explain to the Commission why it is you had never given it to the company, even though you said you would?---I guess - well, I guess with - I'm not saying it's not an important issue for us, I'm not saying that at all. What I am saying is that we haven't been able to achieve anything in the way of negotiations. We haven't achieved anything that the union along with its members have put to the employer's claims. There hasn't been one thing in any document that they can present in this Commission that they've conceded other than SBT have conceded now the 36 hour week, but everything else that's been tabled and all the discussions that we'd have with the employer there's been no movement on.

PN287

All of those discussions, can I put to you, have very much - the basis of those discussions has been the SBT proposed agreement, the process was in the minutes recorded, that you've actually gone through clause by clause, you've gone through these agreements, there's been discussions about what's acceptable, what's not acceptable. You're not suggesting to the Commission that none of what is in these agreements you can't live with? A lot of it obviously is taken straight out of the award?---No. That's right, but we went through the same process with South East Water where we went numerically through the document and we couldn't reach agreement on anything.

PN288

THE DEPUTY PRESIDENT: Can I put it to you, then, Mr Montebello, that you were of a view that it wasn't worth doing some of these things that you had undertaken to do such as providing the document on inclement weather, given that the obstacles to reaching agreement on other matters were in your view at that stage apparently insurmountable?---That's correct. That's the best way to describe it.

PN289

MR MCDONALD: You were asked during the meeting on 26 July, I'm sorry to chop and change with you, but you were asked in the meeting of 26 July with Ms Prince, with SBT, she said to you, look, what is it, what's it going to take, Mr Montebello, over and above what we've got in our SBT agreement, what is it that you, the union, want in order for us to have an agreement? Do you recall that discussion taking place?---I don't recall it, no.

PN290

Have a look at Ms Prince's statement, attachment 3. Have you got that, attachment 3, minutes of the meeting 26 July? Have a look at page 8 of the minutes. About six lines down from the top of the page, KP, that's Kathy Price:

PN291

Asked what it was they -

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN292

that's the union -

PN293

were seeking that wasn't already covered in the SBT agreement. MM responded that he wanted vehicle industry appendices.

PN294

Now, do you recall that exchange?---Yes, I do.

PN295

Vehicle industry appendices, that's a reference to an appendix to the agreement which would provide specific conditions of employment for Siemens employees who were undertaking work at the premises of Holden, Ford or Toyota, correct?
---That's correct.

PN296

Obviously, you accept it's an important matter. That's what you've identified to Ms Prince as being a stumbling block or a major deficiency with the proposed SBT agreement because it didn't have any vehicle industry appendix?---What we said was that we wanted to make sure that the agreement was comprehensive enough, that if they ventured into the vehicle industry, that the allowances, unless it's specified in the agreement, wouldn't apply.

PN297

So just to be clear about this, is that a claim, what you're referring to there is a specific form of allowance for someone working for each day they worked, say at the premises of Holden, Ford or Toyota?---Well, it was an allowance, yes, that we would want put in the document that was up for negotiations.

PN298

Just have a look at the generic agreement. If Mr Montebello could be handed that, please, handed a copy of that generic agreement. Have we got one spare? I will hand the witness a copy of what I've got as being the Commission exhibit, the Downer agreement, and ask if the witness could be shown that. If you could just have a look at that, that's appendix H. I am showing you appendix H of exhibit SIEMENS4 and that's a vehicle industry appendix?---Yes. We wouldn't be seeking that in its entirety.

PN299

No. If you turn over the page, there's an allowance on the second page?---Yes.

PN300

That's the claim?---Well, we never actually got to how much the amounts were.

PN301

Mr Montebello, if you look at the union's log of claim and probably the best place to go with that is the document which is attachment 7 to Ms Prince's statement because you've accepted that that's the actual document that was served on the company. Have you got that, attachment 7?---Yes.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN302

There's no - correct me, I don't see a vehicle industry claim?---I guess it would be picked up in the way of disability allowances in this document.

PN303

You see, Mr Montebello, you've been asked by Ms Prince, the HR manager at SBT, to identify what is your deficiency, what's wrong with our agreement and your response is no vehicle industry appendix. You haven't even got a formulated claim anywhere against the company which sets out what it is you say is a stumbling block to agreement being reached. That's the position, isn't it?---I guess if - - -

PN304

That is the position, isn't it? Yes or no?---No, that's not the position, no.

PN305

Well, you show me and show his Honour, Mr Borenstein, where is the claim articulated for how many dollars per hour you want SBT to pay a technician who goes out to Holden to do some work. It doesn't exist, does it?---I'm saying it does.

PN306

Where is it?---Referred to as a disability allowance in the claim.

PN307

How much, how much do you want?---It says $3 all purpose.

PN308

That's a disability allowance, is it?---That's correct.

PN309

Going to Holden is a disability, is it?---That's how I understand it was formulated.

PN310

Did you ever put that to the company? Never, did you?---I would dispute that, because we gave them the claim. At the end of the day, we asked the question to the company do they accept any of the claims, they say no, so why then get into the argument about the description? They never asked the question of us. We said that we wanted a claim for recognition.

PN311

This is another matter, then, that should be put on the list when we had the hearing on 12 September, in the earlier application, do we add this to the list of matters which you identified there as not having been discussed, matters on your log of claims which had not been discussed? I'll refresh your memory, Mr Montebello. On 12 September, you were questioned by Mr Borenstein about your log of claims and during the course of the transcript, Mr Borenstein took you through various items on your log of claims and asked you whether they had been discussed. At paragraph 94 he makes reference to the fares allowance:

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN312

Mr Montebello, can you explain what that compensates for and how that's negotiated?

PN313

You explain how it works and at paragraph 95, question:

PN314

You've raised this claim with the company?

PN315

Answer:

PN316

Well, we haven't quite specifically got into discussions other than we're dissatisfied with the current arrangement in respect of the blokes raising an issue about the tax component.

PN317

So that was the fares allowance. That's one matter you said hadn't been discussed. Paragraph 120, risk allowance, and you say at line 125:

PN318

At this stage, it's being touched on, but there's no agreement on it.

PN319

Paragraph 121, meal break after one and a half over time, 20 minutes, you say at line 124:

PN320

There's been no discussion and the same again, it's just been clearly rejected.

PN321

So we add this claim here which you've identified as a stumbling block to agreement being reached to those matters about which there's been no real discussion?---The discussion we had about the meal allowance was about when it would apply. What we did say to the company was was it irrespective of whether they're on availability or whether there was any notice, we'd want the allowance to apply. That's about the extent of the discussions and that would then satisfy us in respect to the clause that's in the agreement, the proposed agreement.

PN322

Can I suggest this to you, Mr Montebello, that you as a representative of the union have been quite happy to go through the motions and to use your words in the minutes of meeting, to sit here all day, as long as it takes, to go through the motions of having discussions in relation to the agreements put forward by SBT and IAC? That's what you've done, isn't it? You sit there, yes, I'll have a look at this, I'll do that. You don't do any of it, just have another meeting, soak up a bit of time. That's been what's going on here, isn't it?---No.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN323

Correct?---That's not correct. It just seems to be when we negotiate with Siemens, both building technologies and South East Water, they haven't taken on board any of our issues that we've requested.

PN324

Well, that's just not true, is it, Mr Montebello?---Well, it is true.

PN325

It's just not true. Have a look at attachment number 8 to Kathy Prince's statement. Now, that's a document, there's an email and attached document. Have you seen that before?---Yes.

PN326

And that's a document that was provided to you by the company?---Correct.

PN327

And that followed on from the meeting on 15 August?---Yes.

PN328

These are all matters which were raised with you by the company on 15 August as being changes to be made to pick up concerns which you had voiced. That's correct, isn't it?---Yes, that's some of them.

PN329

Right, so it's just not true, is it? Do you retract your evidence? It's not true to say the company hasn't done anything. It clearly has, hasn't it?---But when they say clause 3, it still becomes an issue given that the proposed agreement is restricted and narrow in respect to its classification, so there's still no agreement on clause 3.

PN330

What you've been doing, Mr Montebello, is you were waiting, you were going through the motions, yes, we had a meeting here, had a meeting there, going though the motions until such time as you had your document, you had your claim formulated that you could put on the table and the two claims were the award without its prohibited content and you turned up to a meeting on 1 September and you said here it is and this is what we want and your other claim, of course, is your generic claim, your industry-wide agreement. That's the other limb of it and you've been going through the motions until such time as you've got them ready and then things get to the pointy end. All of a sudden, we're not talking about, you know, yes, yes, I'll do this, I'll do that, it's, right, we're wasting our time here, here's our list of claims, no agreement, right, see you in the Commission. That's the deal here, isn't it?---That's not true.

PN331

This claim is a pikestaff, isn't it?---It's not.

PN332

No?---No. You've never been so wrong. It's true.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN333

THE DEPUTY PRESIDENT: Well, Mr Montebello, you can't really make that statement with any certainty.

PN334

MR MCDONALD: And you say, no, no, no, we're not making any demands against the company for the generic agreement, they wanted it, we didn't want to put it on the table. That's your evidence, is it?---No. They requested to see the generic agreement, on a number of occasions, one specifically, prior to Paul Barbito and the rest of the negotiating team stormed out of the meeting.

PN335

We'll come to that?---Well, hang on, right, where they were saying that our claims are excessive, then that's when he asked how does this compare with your generic agreement and we said - - -

PN336

Mr Montebello, you were being asked what do you want?---And we said that in no way our negotiations, discussions are related to the generic agreement. We made that very clear.

PN337

Mr Montebello, you were - - -?---Because we believed that we were getting set up. That's true.

PN338

Mr Montebello, you were simply being asked by the somewhat exasperated negotiators from Siemens of instead of a two page piece of paper that we've seen here, what do you actually want us to sign up to? Isn't that the case? The company is saying, look, just come clean and tell us what do you want, stop dancing around with your two page log of claims. That's the deal, isn't it?
---I'll explain to you that if the employer's proposed agreement that we've been using as the basis of negotiations, if we had an agreement on the claims, maybe not in totality, possibly the living away from home is a bit excessive or what they claim is excessive, we don't believe so, but if we could satisfy those claims as per our claim, I dare say we would have an agreement which would be totally different to what you're claiming is the generic agreement. It is nothing like the generic agreement.

PN339

THE DEPUTY PRESIDENT: But you wouldn't have an agreement, would you, Mr Montebello, because there are certain circumstances that you undertook to follow through on and by your own acknowledgment haven't followed through on, so the company wouldn't be in a position to respond to that follow through?
---Your Honour, it would be fair to say that if there was some movement by the employer and treated our claims seriously, rather than stonewalling and saying no, right, on every occasion that they get the opportunity to do it and I might add when they then presented the document that took the ordinary hours back to a 38 hour week, you could see that they weren't genuine in their approach, because you just sort of said it in a way that, well, yes, it's a discussion point. I mean, what they're accusing us of I'm sure you can accuse the employer of, but I'm just making it absolutely clear that we've made every attempt to try and reach agreement on things that we've been trying to negotiate that goes back to corresponding letters dated 19 May and still have no resolution.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN340

MR MCDONALD: What the minutes of the meetings disclose is this, Mr Montebello, that you used the - and just tell me if you disagree or agree, (1) do you agree that the minutes disclose that you used the two proposed agreements as the basis of discussion, correct?---Yes. What we - - -

PN341

Correct?---Yes, what we did, we did, but we objected that there wasn't the two parties present at the negotiations.

PN342

Yes, but notwithstanding that, you entered into the negotiations and - - -?---In good faith.

PN343

In good faith?---Correct.

PN344

The minutes disclose that there was quite a bit of agreement. It wasn't a case of total disagreement. Many of the clauses in the proposed agreements, particularly matters which had been picked up out of the award you could agree with, correct?---Correct. What I said was, yes, if there - if it was out of the award, that we would agree to them.

PN345

The minutes also disclose that on the key issue of award incorporation, you indicated that you would undertake a review to identify additional clauses which would be - to be incorporated into the agreement, correct?---Yes, and I'll give you an example of that was when we last met with building technologies, what I couldn't understand when I tried to reference their proposed agreement in respect to the award and got to the very basics of even definitions in the award which was excluded from the proposed agreement, when I asked the question why haven't we got such as the definition of what constitutes a registered office and the response was, well, we're not going to have another one was their response, I said, well, then how do we then determine fares and travel because it's got to do with where the registered office operates from was when they lost it and walked out of the room.

PN346

That's when they said to you this is why we asked you to identify those clauses in the award which you said should be in the agreement. That's what they said to you, didn't they, correct?---Yes.

PN347

That's correct. Just going back to the steps in the negotiations, the minutes also disclose and it's evidenced by attachment 8 to Ms Prince's statement that in respect of a number of matters, the company changed its position in response to matters you had raised, correct?---The exhibit that you showed me before isn't what it seems, because clause 3 isn't in its entirety in agreeance with what we asked, so even though there's some movement on it, it still reflects initially what they wanted in the first place. It doesn't answer the question to some degree.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN348

Well, those matters - - -?---I mean, business got conduct guidelines. I mean, yes, okay, they removed it because they couldn't provide a document in respect to business conduct guidelines, so the simplest thing was then just to take it out.

PN349

You said that, you said they shouldn't be in there and the company agreed and took them out, correct?---Yes.

PN350

Is it a fair summary of your evidence to say, look, you took the view that even though - ultimately you took the view firstly following on, between 26 July when you had the second last meeting with SBT and 15 August when you had the last meeting, that's with SBT and between 4 August and 1 September, the second last and the last meeting with IAC, you took the view, look, I'm wasting my time with this approach of going through their draft agreement, it's not what we want and they won't agree to our claims, so, you know, let's get on with the show?---You're half right.

PN351

Well, I'm improving?---What I'm saying is you're half right on the basis that, as I said to you previously - - -

PN352

THE DEPUTY PRESIDENT: A substantial improvement in a short period of time, too?---If their agreement that they've proposed to us dealt with the matters in our claim, we would have an agreement and it wouldn't be the generic one, as you claim.

PN353

MR MCDONALD: I referred earlier in my cross-examination of you, Mr Montebello, to the exchange between yourself and Kathy Prince at the SBT meeting on 26 July in relation to the vehicle industry allowance appendix and I want to put to you that immediately following on from that exchange, you were asked by Mr Bullock, one of the company's representatives, whether in fact you had a co-compliant document that you could table that day, so, yes, he asked you the question, but that's what he asked you, correct?---That's correct.

PN354

And you said that you did have such a document, but that it was subject to a legal argument regarding co-compliance and that as such you did not actually have a DEWA stamped document. That's correct?---The conversation stemmed
from - - -

PN355

But were those words said? Is that correct?---He was asking the question.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN356

He asked the question, yes.

PN357

THE DEPUTY PRESIDENT: So the answer was yes, was it, Mr Montebello?
---Yes, he did ask the question.

PN358

MR MCDONALD: And at the end of the meeting on 26 July, you got your mobile phone out and you telephoned a colleague or you tried to contact a colleague?---That's correct.

PN359

So that was someone within the union presumably to see whether - it might have been Mr Borenstein, to see whether he had a copy of the agreement that you could get your hands on?---Yes, I made a phone call to try and get a copy of the agreement.

PN360

You left a message. Whoever it was, they weren't there?---No. That's correct.

PN361

Then later that day and can I put this to you squarely so there's no doubt about this, you never said at any stage during that meeting, look, you know, I'll make a phone call, but this agreement is irrelevant, it's got nothing to do with you, Siemens. You never said those word, did you?---Most definitely, I did. I said it on more than one occasion, actually.

PN362

And, in fact, later that day, later the same day, on 26 July, you rang Kathy Prince and you said to her, look, I've got a copy of this agreement ready to send you, but you'd have to sign a confidentiality agreement if you want to see it?---That's correct, because that was the instruction my secretary gave me.

PN363

Ms Prince said to you that, look, I'm surprised to hear we're talking about confidentiality agreements, all we're seeking to do is clarify what it is that the union is after?---No, that's not, in fact, correct, because we've never been, we've never ever claimed in any of our negotiations with Siemens, both Siemens building technologies and South East Water that we were claiming the generic agreement.

PN364

Just stick with the question. I am putting to you that Ms Prince said to you - don't worry about whether it's right or wrong or it's misconceived or ill conceived, I am putting to you Ms Prince said to you words to the effect I'm surprised to hear that we're talking about confidentiality with the agreement. All we're seeking to do is clarify what it is the union is seeking. Those were the words she said to you. You agree she said the words? I understand you say she's misconceived, but you agree she said the words?---Well, I don't - - -

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN365

Correct?---What she did say that she couldn't believe - or the company wasn't in a position to sign a confidentiality provision or clause.

PN366

Yes, but she said those words, didn't she, why are we talking about confidentiality agreements, we're just trying to clarify what it is you people are seeking? That's right, isn't it?---No. The reason - - -

PN367

Don't worry about reason. Let's be clear about this. Do you dispute - she's going to get in the witness box and give evidence?---Yes, I dispute that.

PN368

So you dispute that?---Yes.

PN369

It's a perfectly natural thing for someone to say, isn't it, what are we talking about confidentiality agreements here for, we just want to know what you're on about? Okay, I hear your evidence, Mr Montebello. Don't worry. Then you rang her back two days later. You said, hey, Kathy, where are we up to with the confidentiality agreement? That's right, isn't it, you rang her?---I did ring her.

PN370

That's a funny thing to do, isn't it, Mr Montebello, if this was an issue of, you know, it's the company after this, it's the company's issue, it's got nothing to do with us, we're not making any claim? You rang her back and said, Kathy, where are we up to, right? Right, and she says, no, we are not going to sign any confidentiality agreement?---That's correct.

PN371

And you said, okay, in that case you don't see it. That's right, isn't it?---That's correct.

PN372

And you had a similar exchange with Tony Handakas at the end of the meeting with IAC on 1 September. He said to you, said words to the effect, look, when is the union going to be in a position to table a copy of the document that you actually want us to sign up to?---The document - - -

PN373

That's right, isn't it?---That's not correct.

PN374

Just stick with the question. Do you dispute that he said words to that effect to you, when are we going to see what it is you people want?---He did say it, but we weren't leaving the generic agreement - - -

PN375

He did say it?

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN376

THE DEPUTY PRESIDENT: At this point in time, that was the question that was asked, whether he said it or not?---Yes.

PN377

MR MCDONALD: And he did say that, didn't he?---I'm quite aware why they were asking, because they wanted to - - -

PN378

Look, Mr Montebello, the evidence shows you've been negotiating for ages. You've been stonewalling, sitting on your hands. You're not doing anything that you say you'll do in terms of following up. The company is saying to you for heaven's sake, let's see what you want. That's the deal, isn't it?---They've got the agreement in front of them. It's the one that they proposed that we're negotiating off. That is the agreement and nothing else.

PN379

Yes, but you just happened to be in a position where you are refusing to follow up on agreed items that you say you'll follow up on?---Well, you need to put things in context.

PN380

We've got the minutes, Mr Montebello. We can all read. You don't dispute the accuracy of the minutes, it seems to me.

PN381

MR BORENSTEIN: Your Honour, is that a question?

PN382

MR MCDONALD: Well, there was a non-responsive answer, so it's a non-responsive question. Perhaps we'll just get on with it. You said to Mr Handakas, you said, well, look, if you want to see this agreement, you're going to have to sign a confidentiality agreement?---I did say that, yes.

PN383

You did, didn't you?---Yes.

PN384

And he said to you, look, I'll look at anything you want to send through to me. He said words to that effect, didn't he?---Yes, he did, but there's no such agreement to send them.

PN385

What were you going to send? If he had said, yes, okay, give us that confidentiality agreement, I'll sign it right here, what were you going to send him?---No, no, what they wanted was, they asked - - -

PN386

Just answer the question. What were you going to send Handakas if he said, right, okay, let's write something out right here and I'll sign it, what were you going to send him?---They asked to see our general agreement, they asked us, so that's what they would have got, to answer the question, if they had signed a confidentiality agreement.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN387

What were they going to get?---They would have got what they asked for. They specifically asked us for the generic agreement. We didn't say to them that's the basis of our negotiations or our discussions at any time. We made it very clear to both Siemens, building technologies and South East Water, we are not seeking the generic agreement. The reason why they requested it on occasions was because they were saying in the first instance with building technologies was that they were saying our claims were excessive in comparison to the generic. That was their words, so they said can you send us a copy? I said, well, I'll send you a copy.

PN388

But you weren't prepared to table that agreement because - absent a confidentiality agreement because you had an instruction from your branch secretary to that effect?---Correct.

PN389

And as you've said in your statement, you say Mr Mighell said to you, well, there's ongoing negotiations taking place so we can't table that, they can't see that unless they're going to keep it confidential, correct?---But the point is the document is irrelevant to the negotiations.

PN390

So the confidentiality issue which was an obstacle to you providing the agreement absent the confidentiality clause, that's now fallen to the wayside, hasn't it?---The confidentiality agreement?

PN391

Yes, because agreement has been reached with NECA. That's correct?---It has of recent, yes.

PN392

Thank you?---But it was irrelevant to the negotiations.

PN393

I am just saying here and now, the reason, the union's reason for insisting upon a confidentiality agreement has now fallen to the wayside, correct?---I would say I'd have to ask Dean Mighell. He was the one that made the decision about the confidentiality. I'd have to ask him.

PN394

If you look at paragraph 21 of your statement, Mr Montebello?---21 of whose statement?

PN395

Your statement, just have a read of that:

PN396

I was advised by Dean Mighell that as negotiations were still continuing, we wanted to keep the document confidential. The only basis on which Siemens could see it would be to sign a confidentiality agreement.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN397

So that reason, anyway, that Mr Mighell gave you, that's no longer current, is it, because negotiations have concluded?---Yes, but I - - -

PN398

That's correct, isn't it?---I mean, Siemens now and obviously you've got a copy of it now, if you want to present that document and you want to see that as the basis of negotiations, let us know, because at this point in time, it's not part of the negotiations and discussions.

PN399

THE DEPUTY PRESIDENT: I think you've made clear your evidence in that respect, Mr Montebello?---Well, he keeps harping on it, your Honour.

PN400

Well, I think he's asking specific questions and if you simply confine yourself to answering those questions, we'll probably make quicker progress?---Okay. Thanks, your Honour.

PN401

MR MCDONALD: Do you dispute this, that the true position throughout the negotiations with Siemens in July and August, into September, the true position was that the union at all times did have a draft agreement which, if it was accepted by Siemens in its totality would have settled all of the union's claims against Siemens for a new certified agreement?---Say that question again, sorry?

PN402

Do you agree that throughout this period, July and August, September, the ETU - probably not July, but into August and September, the ETU did have a draft agreement which if it was accepted in totality by Siemens, if they said, yes, we'll sign, would have resolved all of the union's claims against the company for a new certified agreement?---No.

PN403

You don't accept that?---No, I don't.

PN404

So that's your evidence, is it, that if you get a prohibited content ballot order from the Commission and that's voted up and you then go on strike for two weeks and the managing director of Siemens picks up the phone and pleads with you to call off the strike and says, Mick, what is it going to take to stop this industrial action, we'll sign anything, your evidence to the Commission is that that agreement wouldn't do it?---Sorry, I'll go back a step. I'm saying for the record that the proposed agreement that we've been negotiating satisfies our claims possibly, not all, maybe not the whole entire claim that we've logged, whether it's seven per cent or whether it's the full amount, fares and travel, whatever and it was picked up and accepted by our members, it would be that, that would be the agreement.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN405

I am asking the question, just to go back to the question I asked earlier, you'd get the managing director of Siemens, you've been on strike for two weeks and the managing director of Siemens says you're killing us, Mick, it's costing us millions, we're losing customers all over the place, we'll sign what you want us to sign, have you got something in your bottom drawer back in your office right now? We know it's not that terrible generic agreement that we wouldn't go anywhere near, but what have you got in your bottom drawer that you'll pull out and say, right, okay, we'll call the boys off, they go back to work, you can sign here, what have you got?---I don't know what - I'll say it again.

PN406

What are you putting to the company to settle the agreement, to settle the dispute?---What would settle the dispute if we're talking about the one agreement that covered all the employees that Siemens Ltd employ that are incorporated in the award with the prohibited content taken out, but the award in its entirety without the prohibited content, taken out and attached to that agreement and along with that agreement satisfied - I am not saying all the claims, I'm not saying entirely the whole seven per cent or the whole claim for redundancy for apprentices, but something that I could take back to our members and say we've got an agreement, that it's a five year document because it's important to the members that they want a five year agreement, they don't want a two or three year agreement, they want some surety in their employment arrangement - - -

PN407

THE DEPUTY PRESIDENT: Mr Montebello, is it your evidence that you don't currently have a document that meets all of those requirements? You don't currently have a document that meets all of those requirements?---We don't, no.

PN408

Thank you.

PN409

MR MCDONALD: And for the vehicle industry people, are you saying that your claim - that the vehicle industry allowance, that is Siemens people that go and work at Holden or Ford, are you saying that what you want is the $3 disability allowance?---Yes.

PN410

Not the $5.30 that you've got in the generic agreement?---No.

PN411

You're going to take a haircut on that one, are you?---No, $3 all purpose, if our members accept it, well, then they accept it.

PN412

Well, what do you mean, if they accept it? Are you saying to the Commission that the position is that you haven't even been to your members to clarify with them what it is that they're going on strike over, if you get a protected action ballot and you're able to take protected action?---If we get protected industrial action, the protected action is in pursuit of their claims. At the end of the day, if the negotiation parties get back together, which we intend to do to try and resolve our differences, because we don't want to go into dispute, that's not what we want to do.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN413

THE DEPUTY PRESIDENT: Yes, and one of those claims is for a $3 disability allowance, all purpose, and that $3 all purpose disability allowance is the allowance that you would apply to those people working in the vehicle industry, so that is the allowance that the members would be going on strike or taking industrial action in support of, not something else?---No, that.

PN414

Thank you.

PN415

MR MCDONALD: You haven't even thought it worthwhile to organise a further meeting with the company since the last occasion this matter was in the Commission, I am talking about 12 September, before you re-activated your application for a protected action ballot, why wouldn't you - it's clear, isn't it, that the company has said that they're happy to have a further discussion with you? Why didn't you have a meeting with the company? Any reason for that?---Well, between the last hearing and this hearing - - -

PN416

Yes, I am talking about 12 September?---When was the last time we were in here, if you could refresh my memory?

PN417

We were here shortly last week, I think the 28th?---Well, then we made the application in the Commission to take protected industrial action - - -

PN418

Shortly before that?---Sorry?

PN419

You made the application shortly before 28 September?---I had some time off before that.

PN420

So you haven't really been around and had a meeting, anyway?---No.

PN421

Between 12 September?---No.

PN422

But you do accept, don't you, that your claims have changed because you've now abandoned a couple of claims which you accept were prohibited content, that's the parking fines compensation and the bank fees, correct?---That's correct.

PN423

And you accept and I hear all your evidence about it having nothing to do with the claims against Siemens, but as I understand your evidence, you accept that the obstacles which previously existed to you tabling the generic agreement at the request of the company, they've also fallen to the wayside?---Sorry, can you ask that question again? Sorry.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN424

The obstacle, that is the fact that there were negotiations going on between the ETU and NECA to you tabling a copy of the generic agreement in response to the request from the company, that's fallen to the wayside, that's not an issue now?
---Well, I wouldn't have thought so, but I was under the instruction of my state secretary, so I'd have to ask him.

PN425

You'd have to ask him?---Yes.

PN426

What I'm suggesting to you is that since 12 September, the landscape has changed somewhat. You might have an argument about the extent of the change, but it has changed, correct?---Do you want to be more specific?

PN427

Well, your claims have gone, the claims have now gone which have been dropped, which were previously on the table?---Which are the parking fines?

PN428

The parking fines, compensation of bank fees?---That's correct, they've been dropped, yes.

PN429

And subject to any new instruction that you might get from Mr Mighell, the question of confidentiality which was an obstacle previously to production of the general agreement seems to have gone away?---I would assume so, but I'd still have to ask the question. I don't know another way to answer that question.

PN430

Yes, I understand that, and just so I'm clear on this, the reason why between 12 September and the filing of the new application that I think was around 26 September, the principal reason is the fact that you've been away, you weren't at work, correct?---That's correct. There were some days that I worked, there was other days that I was away.

PN431

Okay, and have you been the one basically who has had the carriage of these negotiations on behalf of the ETU?---That's correct.

PN432

Now, I want to take up with you one specific matter that you've raised in your statement, Mr Montebello, and that's your evidence that you give that representatives of the company - no, I'm sorry, I beg your pardon. Can I just put that to one side? Can I put to you that in addition to being asked to undertake a review of the award to see what additional provisions should be incorporated into the SBT agreement, you were also asked during the meeting on 26 July as to whether or not you could identify any cost offsets or productivity gains which would justify the increase in wages to seven per cent and increase in superannuation to 15 per cent? I think it was Mr Bullock asked you that?---And I said I'd consider it, yes.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN433

You said you'd consider that?---Yes.

PN434

And when the next meeting convened on 15 August and you were asked whether or not you had turned your mind to that issue, your response was something to the effect of, look, the guys are already doing that work, they're already doing the work, so there's all the productivity you need, something along those lines, is that a fair description of what you said?---What I also said was that - - -

PN435

Did you say those words?---Yes, and other words, yes, because the members feel that the nature and the work that they perform, that our claims are justified.

PN436

Were you involved at all in the negotiations with Downer Electrical?---No.

PN437

No?---No.

PN438

Do you know how long those negotiations were going on for?---I don't know specifically with Downer, no.

PN439

Can I just put this to you? I accept you weren't involved, but on the face of the material, that is the face of the document, exhibit SIEMENS4 which has been produced today, the approach appears to have been from the ETUs perspective that it had a document on the table that it was negotiating, an ETU document. Is that correct, or do you just not know?---Just ask the question again, sorry. Sorry, I'm just missing the - - -

PN440

I am putting to you that in relation to this Downer Electric, this document which is exhibit SIEMENS4, that the approach which appears to have been followed is
that - - -

PN441

THE DEPUTY PRESIDENT: Why would that be relevant to me, Mr McDonald, if they did or if they didn't?

PN442

MR MCDONALD: All right.

PN443

Now, your evidence, Mr Montebello, is that representatives of the company, your words is they stormed out of the meeting on 15 August. Is that right? This is with SBT?---Yes, that's correct.

PN444

Can I just ask you to go to the minutes of the meeting of 15 August, so that's attachment to Ms Prince's statement, attachment number 4 and go to page 3 of those minutes and look in the middle of the page?---In the middle?

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN445

Yes, in the middle of the page, the second paragraph on page 3, beginning with the words PB then commented. Have you got that?---Yes.

PN446

And PB is Paul Bullock. He's commented that:

PN447

We had made a concerted effort to come back to the meeting today with agreed actions completed.

PN448

?---A one pager, yes.

PN449

Yes, and it was clear that the ETU hadn't completed their agreed actions and he's referring there to the review of the award on the incorporation point?---Yes.

PN450

And he's also referring to the issue about you identifying productivity offsets, correct? That's what he's referring to?---Yes.

PN451

Paul Bullock reminded MM that we had asked him to identify any gaps between the award clauses incorporated into the award and the actual award and to come up with clear, tangible cost savings to offset their claims. MM advised we already had it as productivity gains, that the boys already do it now. Paul Bullock advised the discussions were going nowhere and it was no use continuing the meeting. PB also advised it was disappointing that MM had not completed his actions and the process was dragging on because of it.

PN452

So do you agree those words, this is the exchange that took place, those words? Do you agree that those words have been said?---Yes, they've been said.

PN453

Yes, and - - -?---But the reason why he stored out was on the basis of when I wanted to get into some of the deficiencies in the award, going back to why - the question got raised from myself to Siemens building technologies was how come they've taken the provision of the definitions in the award taken out and then I led to an example which was why was - - -

PN454

Yes, registered business office?---Correct.

PN455

Yes, and, well, we've seen the response?---Yes, they walked out. They didn't give us the opportunity to continue on with any other deficiencies in the award because they got up and walked out.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN456

You had said previously that you were going to do that. You had said previously you would do that away from the meeting, but now you're saying it's going to take months - hours, months or years for us to go through this award. That's what you said, didn't you?---I don't know that I said years. I said it was time consuming, but because they played around with the award and why we said the easiest, simplest thing is just to incorporate the award without the prohibited content, to take away that concern and it's a concern of the members. They want surety that none of their working conditions were going to alter or change by way of the way that the document was presented and the way - - -

PN457

That's got nothing to do with the fact that you've agreed to do certain things which you didn't do - - -?---And I attempt to do it on the day because I couldn't understand why the simplest things such as definitions were taken out of the award and yet their response was they walked out of the meeting.

PN458

That's a load of bunkum, isn't it?---No, it's not. You're not listening to what I'm saying.

PN459

You didn't do the things that you said you would do. Just listen to my question?
---I want to answer your question.

PN460

THE DEPUTY PRESIDENT: Mr Montebello, just listen to the question and answer the question. As I've said to you a couple of times now, Mr Borenstein will be able to revisit the matter in re-examination if he believes it's relevant and appropriate to do so?---Yes.

PN461

MR MCDONALD: You didn't do the things that you'd agreed to do because you were simply going through the motions, you wanted to have an appearance of having attended meetings with the company so that you would then be in a position to come to the Commission as you have to get your protected action ballot to lay the foundations for industrial action. That's what it's all about, isn't it?---Incorrect.

PN462

Can I put it to you, you come from the school of thought, Mr Montebello, that you put your cards on the table seriously when you're in a position to back it up with some industrial action and that's exactly what's gone on here, isn't it?---That's incorrect.

PN463

Look at attachment number 8 to the statement to Kathy Prince, the email with the attached document, the final paragraph of that email to you which was sent on
24 August from Mr Bullock:

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN464

We ask you that you urgently complete your agreed actions and then contact Kathy Prince to set up another meeting to negotiate a new agreement.

PN465

So here's the company putting to you, you say, well, they've stormed out and, you know, they've thrown their arms up in the air?---Which is what they did, yes.

PN466

Which I formally put to you we dispute, but putting that to one side, Mr Montebello, even if the Commission accepts your evidence on that score, the fact is here you've got a follow up email to you, asking you to do what you've said you'd previously do and asking to contact the company to have another meeting. Why didn't you do that? Why didn't you do it? Why didn't you pick up the phone and say, okay, let's have another meeting?---I'll go back to the point that everything that we've negotiated or put in respect to the claim, the company - I'm trying to think of the right word, has been reluctant to move on any of the positions of the claim, I mean, the very level that they agreed to.

PN467

Your claims hardly seem to have been discussed at all, Mr Montebello?---No, we referenced it as we went through the document, the document we were negotiating.

PN468

You've had this scrappy two page piece of paper floating around, the company has been putting a serious document on the table, serious proposals and your claims had barely been discussed. You weren't even seeking to discuss them. You were talking about the company's claims?---I dispute that on the basis that as we were working through the document, we were making changes to represent the log of claims and that's how we dealt with it and there was no objection from the employer on that process.

PN469

Can you just answer the question? What is your answer to the question why did you not take up the invitation extended to you on 24 August in Mr Bullock's email to contact Kathy Prince to have another meeting? Have you got an answer to that one?---Well, I guess I was - I mean, we're happy to meet, but I don't know - - -

PN470

Answer the question. Why didn't you?---Well, we're getting nowhere. The realities are and if you look at our statement on the issues that we're apart and refer to the statement and I believe it's seven - sorry, if you look at our correspondence in statement 10, I think it is, if you'd just bear with me for a second - - -

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN471

Your answer is you think you were getting nowhere?---Well, if you look at the issues that we're apart on, where have we got and they're all very important issues amongst our members. They want these issues resolved and as recent as Monday, I think it was Monday night or Tuesday night, our members reaffirmed it, this is what they want.

PN472

THE DEPUTY PRESIDENT: Any idea how much longer you're going to need, Mr McDonald?

PN473

MR MCDONALD: I'm not going to be much longer. If you'll just bear with me for a moment, I might be able to bring this to an end very quickly. I put to you the reason why you didn't get back to Kathy Prince is that the union's position throughout the negotiations has been characterised by a determination at no time to put on the table in a serious way the form of an agreement which would do a deal and you weren't prepared to do that, you're not prepared to do that until such time as you can back it up with protected industrial action. That's the real reason why you didn't get back to Kathy Prince, isn't it?---We wouldn't be in this position if the company seriously considered our claims. If you look at our statement which is under attachment 10 and it's in simple form, if you would care to look at it, they're the issues we're apart on and they are major issues. We haven't been able to resolve those issues with the company in any shape or form. Do you understand that?

PN474

Well, I'm not surprised. You've just agreed with, what, 5000 members of NECA for a five per cent increase and nine per cent super?---That is irrelevant.

PN475

So your position is that if you make outlandish claims on a two page piece of paper, you can come to the Commission and get your protected action ballot. Is that where you're coming from?---It's irrelevant. The generic agreement has got nothing to do with these negotiations in any shape or form.

PN476

Just one last thing I want to raise with you, Mr Montebello. You said in your reply statement, paragraph 13 - - -?---Which one, sorry?

PN477

Your statement, your second statement?---The second statement?

PN478

Yes?---Paragraph?

PN479

Thirteen?---Yes.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN480

You say, this is in the middle of paragraph 13 that you said to Mr Handakas, this is in reference to the generic agreement:

PN481

Why it's got nothing to do with our negotiations with you.

PN482

He replied:

PN483

I'm just interested in seeing how it's going.

PN484

Now, I put to you that, in fact, those words and that exchange did not take place?
---Well, I'd say that they did and absolutely they did.

PN485

Can I suggest to you, Mr Montebello, that generally your recollection of what happened over these meetings is not particularly good, is it?---No. It's good. I know in particular because I was absolutely clear that any negotiations or discussions weren't about negotiating the generic agreement, very clear, absolutely.

PN486

You don't have any minutes, you didn't take any minutes, you don't have any minutes of these meetings, do you?---I've got a handbook that I scribble down on, yes.

PN487

Have you got that with you?---No.

PN488

You haven't, as the company has, you haven't seen fit to back up statements in your witness statement with - let me withdraw that. I take it your handbook doesn't constitute formal minutes of the type that we've got here?---I do take note of the important statements or comments that have been said, yes, and the ones that I know and my response, right through the whole negotiation process is whenever the generic agreement was raised, it was raised by them, not us, and I just want to repeat myself for about the fifth time, it was them and if you read our statement, right, it came out of the blue. Do you understand what that means? It came out of the blue.

PN489

THE DEPUTY PRESIDENT: I think we've got the point, thanks, Mr Montebello.

PN490

MR MCDONALD: I will storm out in a minute, Mr Montebello, if you
keep - - -?---No, that's what Siemens Ltd do. You're as hard to understand as what they are, because you don't seem to listen.

**** MICHAEL JOHN MONTEBELLO XXN MR MCDONALD
PN491

THE DEPUTY PRESIDENT: Don't storm out, Mr McDonald. Carry on.

PN492

MR MCDONALD: I have got nothing further for the witness.

PN493

THE DEPUTY PRESIDENT: Thank you. How long do you reckon you'll need, Mr Borenstein?

PN494

MR BORENSTEIN: If your Honour is minded to adjourn now - - -

PN495

THE DEPUTY PRESIDENT: Not necessarily. If you weren't going to be an inordinate period of time, it's probably better that we finish with this witness before lunch.

PN496

MR BORENSTEIN: Yes, I should be able to finish before - I shouldn't be that long.

PN497

THE DEPUTY PRESIDENT: Sorry?

PN498

MR BORENSTEIN: I shouldn't be that long, sorry, your Honour.

PN499

THE DEPUTY PRESIDENT: I thought you just said you should be able to finish by four.

PN500

MR BORENSTEIN: I'm not Mr McDonald. I should be finished in a few minutes.

PN501

THE DEPUTY PRESIDENT: I've seen some long cross-examinations. I've not seen a re-examination go quite that long.

PN502

MR BORENSTEIN: I will be finished I think by quarter to one.

PN503

THE DEPUTY PRESIDENT: Fine. Go ahead.

<RE-EXAMINATION BY MR BORENSTEIN [12.23PM]

PN504

MR BORENSTEIN: Mr Montebello, you have been referred to the notes taken by the employer representatives, being Ms Prince and Mr Handakas. Are you aware of those notes?---Yes.

PN505

Were those notes ever provided to you prior to this matter, prior to this application?---Never seen them before.

**** MICHAEL JOHN MONTEBELLO RXN MR BORENSTEIN
PN506

Did they ever tell you they were actually typing up detailed minutes in this form?
---No.

PN507

And they never sought to get you to confirm the accuracy of such minutes?
---No.

PN508

Now, you were taken I think about four to five times about exchanges or probably the same exchange, but an exchange about the issue of award incorporation?
---Yes.

PN509

It was alleged that you undertook to go through, to compare the award and the EBA, the draft agreement that you were using as the basis for the negotiations?
---Yes.

PN510

Can you explain to the Commission the problems, if you faced any, in undertaking this task?---When I looked at the document in comparison to the award, if you look at the proposed agreement, there's some clauses that repeat itself and I was a little bit confused about because my understanding is that the employer's position was that anything that was contained in the proposed agreement was clauses taken straight out of the award. I found that to not be consistent which confused me somewhat, given I took them on their word. Things that I would refer to would be such as notice period for one where under the contracting award, the obligation by the employer irrespective of years service is one week. The proposed document in respect to termination only refers to the employer terminating the employee. It clearly, you know, follows the requirement depending on years of service, but it's silent in respect to what the responsibility of the employee and what notice would be required. There was inconsistencies in the sick leave provision.

PN511

Can you explain that?---Sorry?

PN512

Can you explain that?---In the sick leave provision, the Contracting Industry Award allows for eight days and under Work Choices now, that's been extended. The contracting award allows for five sick days within the first six months of employment and the remaining six months, three, cumulative yearly. Their agreement operated and worked on some sort of pro rata basis that for every month of work, you accumulated one sick day which is not a reflection of what the award is.

PN513

So the award operates so that when you start employment, you have five days sick leave automatically?---Correct.

**** MICHAEL JOHN MONTEBELLO RXN MR BORENSTEIN
PN514

Whereas their agreement had you only accrue one sick leave per month?---Yes. I think it's clause 30.

PN515

So these were the problems you faced when you began to undertake this task in comparing the award and the agreement?---Yes, because I was under the understanding it was just a clear reflection straight out of the award, except for what they considered prohibited and what they considered was important.

PN516

Okay, and the position you put to them about incorporating the award prior to that point was to do what?---Was to alleviate any of those concerns, so we could give assurances back to the members that in no way, shape or form, except for what needed to be taken out, it was explained to the members about the prohibited content that needed to be taken out of the award and that's what they were satisfied with. It was a claim by them, it was what they wanted.

PN517

So that was our position put to the company?---That's correct.

PN518

And the company's response to that claim was what?---Well, as I said, when I started getting into the deficiencies of the award and I did keep going back to the first one which I thought was a simple one about registered office, Mark Baker - I think it's Mark Baker's comment was, well, we're not going to have another registered office which I thought was obviously not an important issue for them, but was one for us, because - - -

PN519

What was the company's response to our claim that instead of picking out clauses and putting them in the body of the agreement, what was their response to our claim that we would just attach the award as an appendix and have it fully in the agreement?---No, they objected to that.

PN520

And if they had accepted that, would there have been a need for you to go through the company award and EBA and cross check them?---No. It would have made it a lot simpler.

PN521

Was there any - did the company raise any basis or any - did the company raise any reason why our proposal to incorporate the award in full could not work?
---Well, their argument is that they believe - I guess such as registered office and those like clauses aren't relevant which is in total contradiction to what we think. We say they are.

**** MICHAEL JOHN MONTEBELLO RXN MR BORENSTEIN
PN522

And under the agreement that applied between the 2003 and 2005 - I am sorry, I might just hand up a copy of that document.

PN523

MR MCDONALD: This seems to be getting beyond matters properly raised in reply, it seems to me, with respect, well beyond it.

PN524

MR BORENSTEIN: Well, in what respect?

PN525

MR MCDONALD: Well, I haven't asked any questions about the 2003/2005 agreement.

PN526

MR BORENSTEIN: Well, Mr McDonald's raised a large number of questions about the conversations that occurred in these notes and - - -

PN527

THE DEPUTY PRESIDENT: Well, perhaps if you confine yourself to questions that did arise in cross-examination specifically, Mr Borenstein?

PN528

MR BORENSTEIN: Well, this goes to the discussions and the actions of the employer, the reasonableness of the actions of the employer and the actions of
Mr Montebello which were all squarely raised in the cross-examination questions. He might not have mentioned the 2003/2005 agreement, but he raised issues that are connected to that. If I go to the 2003 agreement, the award is incorporated in full in that agreement, and - - -

PN529

THE DEPUTY PRESIDENT: But there are limits, Mr Borenstein, to the breadth that you can draw from questions that were asked in cross-examination as a basis for you going back to that material in re-examination, but carry on with your questions.

PN530

MR BORENSTEIN: I do seek to hand up this document. If my friend feels prejudiced in any way - - -

PN531

THE DEPUTY PRESIDENT: I'm sure he'll object.

PN532

MR BORENSTEIN: It's a document of the Commission.

PN533

MR MCDONALD: If he's handing up the 2003 agreement, I don't have a problem.

PN534

MR BORENSTEIN: Well, that's all I'm handing up.

**** MICHAEL JOHN MONTEBELLO RXN MR BORENSTEIN
PN535

MR MCDONALD: And presumably the agreement speaks for itself.

PN536

MR BORENSTEIN: Mr Montebello, if I could take you to clause 2, and it's the first sentence in clause 2?---Yes.

PN537

You see there it says:

PN538

This agreement incorporates the terms of the National Electrical, Electronic, Communications -

PN539

et cetera:

PN540

- Award as stated on 16 December 1999.

PN541

?---Yes.

PN542

Is the approach that you were taking consistent with the operation of this document?---That's correct. Without the prohibited, because since - - -

PN543

Yes, without the prohibited content?---Yes.

PN544

So is it correct that - - -

PN545

MR MCDONALD: Don't lead the witness, please.

PN546

THE DEPUTY PRESIDENT: Again.

PN547

MR BORENSTEIN: Mr Montebello, is the approach that the company's
taking - - -

PN548

MR MCDONALD: That sounds like a leading question again.

PN549

MR BORENSTEIN: Is the approach the company has taken any different to what's contained in the - is it different to the approach taken - sorry. Is it different to the terms in the 2003 agreement?---Yes.

PN550

How is it different?---Well, the agreement that we have - the terms and reference to these clauses refer to all the Siemens Ltd employees.

**** MICHAEL JOHN MONTEBELLO RXN MR BORENSTEIN
PN551

No, I'm just talking in respect of the award provision?---Sorry, I'll just get you to ask the question again, sorry. I've lost - I was on a different tangent.

PN552

I'll withdraw the question?---Sorry.

PN553

I withdraw the question. You were taken to tab 4 on page 3 of 3. Can you turn to that, Mr Montebello?---Tab 4 of?

PN554

Sorry, of Ms Prince's statement?---Yes.

PN555

You were asked about, probably in the fifth line down:

PN556

MM advised that he didn't mind going through our document, but it wasn't a pick-a-box, it takes hours, if not months, if not years.

PN557

You weren't allowed to - you tried to say that - give an understanding, your understanding of what was actually said. Can you just please - - - ?---What I was trying to indicate to the employer was that it is very time-consuming. If we're going to play around with the award, that it is time-consuming unless - you know? And if they've moved away from the award, then - and for the time that I have between meetings, taking on board what they said, it was - everything that was taken out of the contract in this award, it was - that was - that formed part of the agreement and where that was inconsistent, I was totally lost. So that's why I said to the company, well, I understand, and maybe there's a bit of an exaggeration, but what I was trying to imply to the company was, well, it is time-consuming. And what I particularly wanted was, was that there wasn't anything reference - in their document reference to the award, well then I'd want a good explanation or understanding why it wasn't incorporated in the agreement which formed part of the award.

PN558

Was there an option proposed by the ETU that in your view wouldn't take hours, months or years?---Yes, just to simply incorporate the award as an appendix.

PN559

Now, could I take you to attachment KP7, attachment 7 to Ms Prince's statement?
---Yes.

PN560

Now, it was raised by Mr McDonald, he asked what - - - ?---Sorry?

PN561

It was asked by Mr McDonald what claims - if we did take industrial action and Siemens came and said, "We want to give in, we want to concede", what claims they could agree to. Can you point to what would occur if Siemens came to you and said, "We want to reach agreement with you, we want to know what claims you want", where would you go?---I would say that obviously we'd seriously meet, but you know, obviously if the company was genuine in trying to resolve the dispute, we would expeditiously try and - try and reach an agreement and if the claims - and I'm saying this not in entire - we don't always get what we always ask for, but if the majority of the - the major issues such as the one agreement that applies to all Siemens technologies, the scope of the award applied, all those sorts of matters, along with satisfying the no other claims, I'd say would come a long way to try and resolve the dispute.

**** MICHAEL JOHN MONTEBELLO RXN MR BORENSTEIN
PN562

Right. Is it your understand - well, would Siemens understand what claims the union is actually seeking of them?---Yes.

PN563

How would they understand that?

PN564

MR MCDONALD: I don't think he can give evidence about the state of mind of Siemens, sir.

PN565

MR BORENSTEIN: I'm asking - - -

PN566

MR MCDONALD: Well, I object to the question. He can't give evidence about the state of mind of Siemens.

PN567

THE DEPUTY PRESIDENT: I think that's correct, Mr Borenstein. You'll have to phrase the question a different way.

PN568

MR BORENSTEIN: How would Siemens - - -

PN569

MR MCDONALD: He can't give evidence about how - what Siemens - - -

PN570

THE DEPUTY PRESIDENT: I think what you're really trying to ask is what has been provided to Siemens, such that they're in a position to understand what those claims are, isn't it, Mr Borenstein?

PN571

MR BORENSTEIN: That's - - -?---I think if - I think if you look at our statement, and I think it's 7, which are really the key issues, along with obviously
- you know, a lot of that is potentially, in our view, very important. Not - the members have made it very clear that they want the one agreement, you know? They want the award to apply, the classification of the award still apply with the additional - they understand that, yes, things need to be tidied up, as the award sometimes is a little bit ambiguous. Got no issue about that, that we're happy to sit down and resolve the classification stuff. You know, it wouldn't be impossible for us to reach an agreement on the proposed document they've given us.

PN572

If Siemens came and said that they would accede to all of the claims in KP7, minus the claims that have actually been withdrawn, while the union was taking industrial action, would the union's industrial action stop, in your opinion?---Most definitely. I'd be totally confident taking it back to the members and saying, listen, you know, we've got what we set out to - you know, you have got what you set out to achieve and what you're passionate about and what protection you're
- you've got it.

**** MICHAEL JOHN MONTEBELLO RXN MR BORENSTEIN
PN573

Can I take you to KP8 which - can I ask you, are any of these concessions - sorry. Do any of these concessions by Siemens, are any of them agreement to the claims that we put to them in KP7? If you have a look at - - - ?---Well, I guess if you look at KP7, this is what the members are saying that they want on the basis of the work that they perform.

PN574

In this document, have Siemens agreed to any of the claims in KP7?---No. They haven't. No.

PN575

Now, Mr McDonald asked you for what's happened since 12 September, or during September, et cetera. Now, in your statement you have attached a number of letters. Have you caused to be - have you sent those letters that are at attachments 10 and 11 of your statement?---Yes, they've been sent. Yes.

PN576

Has there been a change - sorry, I'll take you to attachment 10?---Attachment 10? Hold on. Yes.

PN577

You'll see there at point 4 on the second page of that letter - - - ?---Yes.

PN578

- - - and you've said there:

PN579

The fact that the alleged prohibited content has been withdrawn will not affect either party's stance on the real issues between them. The parties have spent a lot of time negotiating on, but have failed to reach agreement.

PN580

?---That's correct.

PN581

You then ask them if the union is wrong in this, would they advise us of such. Now, has any response come back to advise of any change in position on the matters set out there?---No. Unchanged.

PN582

I have no further questions, your Honour. Thank you.

PN583

THE DEPUTY PRESIDENT: Good. Thanks, Mr Borenstein.

PN584

Thanks, Mr Montebello, you can stand down?---Thank you.

PN585

Thank you for your evidence?---Thanks.

<THE WITNESS WITHDREW [12.44PM]

PN586

THE DEPUTY PRESIDENT: Before we adjourn for lunch, just a couple of things that I wanted to raise. It is, at least to my mind, a somewhat odd construction in the Act, be it not a particularly lonely one, but anyway. If you look at section 461(1) and you also look at section 421(3) of the Act, it leads you unto the view that the only real question before the Commission is whether or not there was the union in this instance were genuinely trying to reach agreement with Siemens. I'm not necessarily asking for a response to this at the moment, I'm simply raising it because it seems when you look at section 421, that if the answer is in the affirmative to genuine bargaining, then that undermines the Part C of section 461(1). That might b something the parties might want to address me on at some point in time.

PN587

It just seems to me that the real question is, as I said, whether or not the applicant, in this case the union, genuinely tried to reach agreement with Siemens. Mr Borenstein, in the light of Mr Montebello's evidence, I think it's fair that I should put to you at this point in time that I have concerns whether a party who is an applicant for a secret ballot, and you'd be aware that it's the applicant for the secret ballot that the Act imposes the requirement upon to be genuinely trying to reach agreement, not the other party, I'm concerned whether a party who is an applicant for a secret ballot can be said to be genuinely trying to reach agreement when that party has undertaken to do certain things and provide certain information in respect of subject matter proposed by one party or the other to potentially form part of that agreement between them, and has failed to do so.

PN588

Because it seems to me that absent the provision of that information, then the other party is unable, even if it wished to, and it certainly may not wish to, but even if it did wish to, to conclude any agreement. Again, I'm not asking that you respond to the submission, but I just thought at this point in time, having heard
Mr Montebello's evidence, that I should raise that with you as a concern that I have. Having said that, we'll adjourn until 2 pm.

<LUNCHEON ADJOURNMENT [12.47PM]
<RESUMED [2.04PM]

PN589

THE DEPUTY PRESIDENT: Yes. Go ahead, Mr McDonald.

PN590

MR MCDONALD: If it's convenient to the Commission, I won't open, make a formal opening. I think the issues are fairly clear from the course of cross-examination and I'll make my submissions in due course at the end of the evidence. I just propose to call Ms Prince, if I may.

PN591

THE DEPUTY PRESIDENT: Yes.

<CATHY MAREE PRINCE, AFFIRMED [2.05PM]

PN592

THE DEPUTY PRESIDENT: Yes, you can be seated, thank you, Ms Prince.

<EXAMINATION-IN-CHIEF BY MR MCDONALD

PN593

MR MCDONALD: Ms Prince, could you state your full name?---Cathy Maree Prince.

PN594

Your address is (address supplied)?---Yes.

PN595

Now, you have prepared a statement for the purposes of this proceeding?---Yes.

PN596

You have that in front of you?---I do.

PN597

It's a statement, together with eight attachments, yes?---Yes.

PN598

Now, are the contents of that statement true and correct?---Yes.

PN599

Thank you. Nothing further.

PN600

I'd seek to tender the statement, if I may?

EXHIBIT #SIEMENS 5 - STATEMENT OF CATHY MAREE PRINCE

PN601

THE DEPUTY PRESIDENT: Go ahead, Mr Borenstein.

PN602

MR BORENSTEIN: Thank you, your Honour.

<CROSS-EXAMINATION BY MR BORENSTEIN [2.06PM]

PN603

MR BORENSTEIN: Ms Prince, you have attended the three negotiations held in respect of the SBT Agreement, is that correct?---Yes.

PN604

It's right, isn't it, that these negotiations regarding the agreement occurred on 11 July, 26 July and 15 August?---Correct. Yes.

PN605

Just prior to these negotiations starting, SBT provided a proposed agreement to the unions - to the ETU, sorry?---Yes. 4 July.

PN606

That was created for the purposes of the negotiations that occurred on 11 July and onwards?---Yes.

**** CATHY MAREE PRINCE XXN MR BORENSTEIN
PN607

During those negotiations, I think you'd agree that by result of your lengthy notes, that quite an amount of negotiation has taken place during those three meetings?
---Lengthy discussions, but not many of the clauses actually covered.

PN608

Okay. What clauses do you say weren't covered?---Anything past clause 20. Clause 2 and beyond.

PN609

Okay. Why did that not occur?---There was quite extensive discussion around the clauses from 1 to 19.

PN610

So is it fair to say that the parties got road-blocked on the clauses between 1 to 19 and never actually got around to actually discussing clauses after that?---What do you mean by road-blocked?

PN611

Well, did the parties spend their time negotiating 1 to 19 - - - ?---And also the claims list as well.

PN612

Is that the claims list that you've attached at tab 7 of your agreement?---Yes.

PN613

So the parties - if I can summarise it correctly, the negotiations during the three meetings focused on clauses 1 to 19 of your agreement and the log of claims provided by the ETU?---Yes.

PN614

Is it fair to say that the parties never got to the clauses 20 plus in your document because they couldn't reach agreement on the log of claims in clauses 1 to 19 in your document?---I'm not - - -

PN615

Is that fair to say?---I don't think that's fair to say because I think there was plenty of opportunity to come back and talk about things in the claims list, if there had have been discussions around the productivity off-sets that we asked for to justify additional claims, and also if there had have been the award checks as well, to compare the award against what we'd incorporated, I think there would have been more genuine discussions then.

PN616

But you've spent - you've got a large amount of notes and they've gone - and they detail - you've attached the notes, exhibits 1 to 4 of your statement, and it appears to be in there a fair amount of discussion and negotiation about the claims 1 to 19 and the log of claims that the union has put. Would you not agree?---Yes. Agreed.

**** CATHY MAREE PRINCE XXN MR BORENSTEIN
PN617

It's correct, isn't it, that in respect of the log of claims the union has put, the company has rejected those claims and said unless you provide us with a business case saying why we should agree to it, we're not going to agree to it? Is that fair?
---Well, I wouldn't say that it was a rejection on that basis, then, that if we've said that we will consider if there's productivity off-sets or costs savings, then that's not an outright rejection at all.

PN618

So you haven't considered the claims put by the union, then? Is that what you're saying?---No, not at all. I'm saying we did actually look at them, but we said that we'd like to see some cost savings or productivity off-sets, which is the nature of enterprise bargaining.

PN619

But you're not saying that you actually accepted the clauses?---No.

PN620

Claims? No? You'll have to say no for the transcript?---No.

PN621

But you're saying - you're basically making a counter offer and saying you'd better give us something else to give us a benefit if we're going to seriously consider those claims? Is that what you're saying?---I guess so, yes.

PN622

But you realise that it was open to you to agree to these claims if you chose to, correct?---I understand that, yes.

PN623

You understood that these were the claims of the union and if you agreed to them, then agreement would be reached?---No. No, I wasn't aware of that.

PN624

Why wouldn't agreement be reached?---Because I know that we'd had discussions around the claims list, but there was never any indication given that if we did agree to everything that was on the claims list, that we would end up having an agreement.

PN625

Well, you put claims to the union, that's correct, isn't it?---We put a proposed agreement on the table.

PN626

Yes, but that contains what claims you seek? It sets out what claims you seek?
---Yes.

PN627

The union has provided their log of claims, not in agreement form, but in a log of claims form, correct?---Yes.

**** CATHY MAREE PRINCE XXN MR BORENSTEIN
PN628

You're aware that the union was seeking 7 per cent per annum for their wage increase, correct?---Yes, correct.

PN629

And you were aware - and it would make no difference to your position if they drafted up a clause and said clause 12 or whatever, wages, the union seek - the employer will pay the employees 7 per cent on a certain date and listing per annum. That would make no difference to your position, would it?---Well, yes, it would because if I'd seen it in a proposed tabled document, like we had done, it would have made more sense to see the whole thing in its entirety, rather than a page with a list of claims.

PN630

So are you telling the Commission that if the union had used your agreement, so had your draft agreement, but replaced the wages clause and put in the wages clause simply that the employer will pay the employee 7 per cent extra per annum, that the employer would accept that claim?---That particular claim you're talking about?

PN631

Yes?---No, we had explained that 4 per cent was definitely something that was affordable to the company and fair to the employees, but 7 per cent couldn't be justified unless there were other productivity off-sets or costs savings.

PN632

That's right, so it's irrelevant about whether the claim is put in your document or just put in a log of claims here; the fact is the union is claiming 7 per cent and you're not willing to accept 7 per cent unless there's productivity off-sets? Correct?---On that particular point, yes.

PN633

In respect of, for example, the issue of availability which requires $300 per week extra, your agreement deals with availability, doesn't it, the issue of availability?
---Yes, it does.

PN634

Are you aware of what you've put forward in your document for availability payment?---Yes.

PN635

What's that?---I recall it to be $150. It's an on-call - - -

PN636

Okay. And you're aware, I would assume, that the union has put forward in its log of claims that it claims for $300 per week?---Yes.

PN637

That's right. You have not accepted that offer by the union?---Well, we again asked for the union to come back.

**** CATHY MAREE PRINCE XXN MR BORENSTEIN
PN638

With productivity increases?---Yes.

PN639

But without any - sorry, without any business case put forward by the union, you weren't willing to accept $300 per week?---Correct.

PN640

You don't need to see that actually physically moved into your agreement to understand what the claim from the union is about that issue, do you?---Well, yes. Again, it would help because on the claims list it's just one sentence. In order to fully examine a particular claim, you need to see it in its entirety, what makes up that clause, who it covers, the particulars, a better definition of actually what it means.

PN641

Ms Prince, are you telling the Commission that you were not aware of what the union was claiming when it advised you in its log of claims that they seek an availability allowance of $300 per week, are you telling the Commission that you were not aware of the detail of that claim?---No, I'm not saying I'm not aware. I'm just saying that in order for the bargaining process to be fair and for everything to be open and transparent, there should actually be an entire clause that covers that issue that you bring to the table so it's fully understood what's exactly defined by that clause, what you're asking for.

PN642

Well, Ms Prince, I put it to you that in your existing - in the agreement that applied between 2003 to 2005, that dealt with the availability allowance, did it not?---Yes, it did.

PN643

And the union has come along and said, we want to increase that to 300, how can you say that you are somehow confused about the claim when this - when you have an existing clause and you have a clause in your agreement and the union just says we want to raise it to 300. The truth is that you have no confusion about what the union is seeking in respect to that claim?---Well, it's not that you've just said we want to take the wording exactly as it is in the old agreement, but replace it with $300. So that would have been clearer, if that's what you were saying.

PN644

So are you - I understand you're saying it would have been clearer, but are you saying that you did not understand what claim the union was making?---No, I didn't say that I - - -

PN645

You did understand, didn't you, what claim the union was making in respect of this matter?---I understood that they were seeking $300, but I didn't understand whether or not they were seeking further changes to the existing availability clause because it's only of one line in the claims - - -

**** CATHY MAREE PRINCE XXN MR BORENSTEIN
PN646

You just understood that the claim they were seeking was to change the existing clause only in respect of the - moving the $150 to $300?---No, I did not understand that. I didn't know that that was all they were seeking because it's got minimal information in it.

PN647

Right, but you understood that that was at least of what they were seeking, that they were seeking that, at the very least?---Yes, at the very least. Yes.

PN648

Did you put to them that - if you were confused about if they were seeking anything else, did you ask them, are you seeking anything further regarding the availability allowance?---I didn't ask on that particular clause, no.

PN649

No. In respect of annual leave, just another example, being five weeks per year, is that something that you were confused about the union's position on during the negotiations?---Not confused, but I would have sought further clarification or further definition of what that entailed. Was it, again, a change to the existing clause? What was the wording around it that would make up that clause on annual leave.

PN650

So you're saying - I assume you're an experienced industrial practitioner?---Yes.

PN651

Yes. You're saying you needed further clarification on a claim for annual leave to be five weeks, to fully understand the claim?---To fully explain if that's the - fully explain if that's the entirety of the claim, yes.

PN652

Now, in respect of - is it your view that during the negotiations, Mr Montebello has failed to undertake certain tasks that he said he would do?---Yes.

PN653

Can you advise me what they are?---Yes. It was to do an award comparison because there were certain concerns raised during the negotiations that certain things has been missed out, and you yourself, Geoff, at the first meeting on 11 July and then Mr Montebello also, said that he would undertake to actually do that award comparison and report back on any shortfalls.

PN654

It's true, isn't it, that the union put its position to you that the simplest way of doing this was to have a clause which incorporates the award as an appendix to the agreement, it actually forms part of the agreement, is that correct?---Yes.

PN655

That's right. If such a task - sorry, if such a clause was used, there would be no need for any party to actually cross-check the terms of the agreement with the terms in the award, correct?---Correct.

**** CATHY MAREE PRINCE XXN MR BORENSTEIN
PN656

I put it to you that the union said that it would consider the option put by you regarding the - I suppose the incorporation of the award, of some of the award terms in the body of the agreement?---Correct.

PN657

I put to you that it was never agreed by the union that it would agree to your process of actually incorporating, or putting some of the clauses of the award in the body of the agreement?---I disagree with that.

PN658

So you say it was actually agreed by the union to put the terms in the body of the agreement, rather than incorporate it as an appendix?---No, I'm not saying that, but there was agreement to actually go back and do those checks.

PN659

Mr Montebello did come back, I think it was on - I'm not sure if it was with your negotiations or the other party. Just excuse me. Mr Montebello did come back, didn't he, and started to go through - he sought to go through the award and the agreement with you at the meeting, didn't he?---That was perhaps on 26 July and that was the meeting that Mr Montebello was to report back on what award clauses deficiencies there may have been, so towards the very end of the meeting, he did offer to go through it then and there, but that was against what had been agreed to.

PN660

Instead of actually going through that process with him, is it right that Siemens' representatives walked out of the meeting?---Well, there was one other undertaking that wasn't given, so if I answer your question in full - - -

PN661

I'll get to that?--- - - - previously - - -

PN662

I'll get to that subsequently, but in respect of - the Siemens people walked out after that, is that correct, once - started talking about that issue?---Well, no. There's more to that that just saying that we walked out purely because Mr Montebello wanted to go through the award at the meeting.

PN663

I put to you that Mr Montebello came to the conclusion that - sorry. It was not unreasonable for Mr Montebello to come to you to do that process in a situation where he had found that there were inconsistencies and it would be better to go through it so that you could explain the inconsistencies straight away, rather than him trying to figure out where these different clauses were. It's not unreasonable for him to actually have decided to actually bring the document to the discussions, the negotiations, to actually do that in front of yourselves, is it?---I think it would be fairer if there had have been an attempt to go through and to at least even partially gone through and checked the award.

**** CATHY MAREE PRINCE XXN MR BORENSTEIN
PN664

Well, I put to you that he did and the immediate issues he raised, being registered office, and once he raised that issue, he wasn't allowed to continue with it straight after. He started from the beginning, raised that issue and once he'd done that, Siemens walked out. What more did they expect from Mr Montebello?---I disagree that that caused the walk-out and I also say that just raising one particular provision of the award doesn't count to actually doing a full check. Because that had been an issue. We had raised concerns at the meeting on the 11th, so surely it would have been wise to go through that checking process in full, or at least gone through a good part of it?

PN665

You have to take into account also the fact that it was just as easy for the employer to agree to the position of the union that they put, that instead of selecting clauses here and there to put in the agreement, you could just incorporate the whole award as an appendix. If the company had agreed to that, then there would have been no need for Mr Montebello to do anything, would there?---That's true, if the company had agreed to that, yes, there'd be no - for that discussion.

PN666

And there's no reason - sorry. Under the existing agreement that applied at the time of these negotiations, that agreement operated by incorporating the whole terms of the award, didn't it?---By referring to the award, yes.

PN667

Yes, it actually incorporated the terms of the award. That's correct, isn't it?
---Well, I just thought it was a reference to the award, but that's not my area of expertise.

PN668

So you weren't aware of whether the award actually incorporated terms or not, is that correct?---I was aware that the award was in place and needed to be applied, but that it was referenced in the EBA.

PN669

I might hand up the document. If I can just look at - the relationship to the award, the first sentence. You'll see there it says it incorporates the award as - - - ?
---Okay. Agreed.

PN670

So you agree that the union's position was basically what you actually applied at the time of the negotiations, wasn't it?---Yes, for the '03/'05 agreement, yes.

PN671

Yes. Which was applying at the time of the negotiations?---Yes.

PN672

Okay. It was Siemens that was trying to change the way the agreement related to the award, wasn't it?---Well, it was in order to ensure compliance with Work Choices and the Workplace Relations Act.

**** CATHY MAREE PRINCE XXN MR BORENSTEIN
PN673

Well, how do you say that the proposal by the union to - attaches an appendix, to not comply with the Workplace Relations Act?---I didn't say that.

PN674

Okay, so it was open to Siemens to maintain its existing practice of incorporating the award in basically full as part of the agreement?---I understand attaching it at the back would have been an option, yes.

PN675

MR MCDONALD: I just question the relevance of this line of questioning.

PN676

MR BORENSTEIN: I just - - -

PN677

MR MCDONALD: Just let me finish. I'm just making a general objection. I've tried to be restrained because the line of questioning has been going on for about 15 or 20 minutes, but the issue under section 461 is not directed to the conduct of Siemens in the negotiations. I appreciate that the question of the genuineness of the union in a negotiating framework is going to bring into play in a general sense the position of the employer, but if we're going to get into the minutiae of the sort of issue here, of look at the 2003 agreement, that makes reference to the award, you could have done that, you could have agreed to that, in my submission that is completely irrelevant to the issue in this application which is directed to the conduct of the union in negotiations. We can have a nice lengthy cross-examination and debate about whether the employer should have done this or the employer should have done that, but that's not what the statute directs attention to, in my submission.

PN678

THE DEPUTY PRESIDENT: Yes. Thank you, Mr McDonald. I have to say, Mr Borenstein, I was having similar reservations about the line of questioning. I, too, let it go. It seems to me that if there was - the issue is really whether or not there was an undertaking by the union to do certain things and whether it did those things or not, not what was open to the company to do or not do.

PN679

MR BORENSTEIN: Well, my response, your Honour, it goes to the reasonableness of the conduct of the union, the context of the undertaking, it goes to the context of how they responded. We - - -

PN680

THE DEPUTY PRESIDENT: But as I mentioned before lunch, there's no requirement in the Act that the company be genuinely trying to reach agreement.

PN681

MR BORENSTEIN: I know, but it's - - -

**** CATHY MAREE PRINCE XXN MR BORENSTEIN
PN682

THE DEPUTY PRESIDENT: And - - -

PN683

MR BORENSTEIN: Sorry, your Honour.

PN684

THE DEPUTY PRESIDENT: - - - the reasonableness or otherwise of the things that they do, I can't really see how that imposes upon those issues that I have to be satisfied about in the context of granting this order or otherwise.

PN685

MR BORENSTEIN: I don't think you can - I understand that your Honour only has to determine whether or not the union was genuinely trying to reach agreement, but the conduct of the employer is inextricably linked to the conduct of the union and if the employer is acting in a certain way, then that will affect how you consider the genuineness of the union's conduct in respect of such.

PN686

THE DEPUTY PRESIDENT: Yes, but - - -

PN687

MR BORENSTEIN: It's just like in Wormald, really - - -

PN688

THE DEPUTY PRESIDENT: Yes. I'm just not sure that we can - there is some merit in what you say, in a general sense. But I think we can do this to death, Mr Borenstein, as far as what the company might have done or what the company might not have done in the circumstances. I think we have to keep the focus upon what the requirements are in the Act in respect of the granting or otherwise of a secret ballot application.

PN689

MR BORENSTEIN: I understand that, your Honour. It's difficult, especially in a situation where my witness has been cross-examined for two and a half hours, going over the negotiations in minutiae and then I have to try and respond and put the - - -

PN690

THE DEPUTY PRESIDENT: I understand that, Mr Borenstein, it may be. But then the cross-examination of your witness, should you have come to a view at any point in time that what was being asked of Mr Montebello was irrelevant, then it was open to you to get to your feet and make an objection, just as Mr McDonald has done in this case, and if that's done, then I'll answer the objection. In answer to Mr McDonald's objection, I am also of the view that we're going too much toward detail that is irrelevant to the determination that the Commission must make in this matter.

**** CATHY MAREE PRINCE XXN MR BORENSTEIN
PN691

MR BORENSTEIN: Yes. Well, I suppose I'm being overly-cautious and the concept of genuinely trying to reach an agreement again is not a black and white
- well, there are authorities on it and - - -

PN692

THE DEPUTY PRESIDENT: Is there anything further that you wish to do in respect of this particular point, what the company could or couldn't have done?

PN693

MR BORENSTEIN: No. I'll move on from this point.

PN694

THE DEPUTY PRESIDENT: Well, let's move on from it and then we'll see how far we can get before Mr McDonald rises to his feet again.

PN695

MR BORENSTEIN: As I understand it, Mr Montebello agreed to consider your response - sorry, your request for him to go through the award and the agreement and detail any inconsistencies?---No, he agreed to actually undertake that process. Didn't agree to consider. He agreed to do that.

PN696

Okay. Well, I put to you that he did not agree to do that, and I put to you that - do you agree with that or not?---No, I don't agree with that.

PN697

So at the next meeting, Mr Montebello started going through the award and the agreement?---So when you say at the next meeting, what meeting are you talking about?

PN698

The next meeting being 15 August, is that, or 26 July?---Well, there was one on the 26th and there was one on the 15th.

PN699

Okay. So on 26 July, was that the meeting where Mr Montebello was expected to respond regarding the award and the agreement?---Yes.

PN700

He started to go through it, is that your evidence, that he started to go through and detail what - any inconsistency between the award and the agreement?---No. He came to the meeting and said that we were too far apart and that we hadn't - - -

PN701

So he didn't raise the issue of registered office?---Yes, he raised that one issue, but that wasn't towards saying, okay, this is what I've done in relation to my agreement to go through the award.

PN702

Okay, well whether or not he's done it or not, he's come to this meeting and started to say - and advised you that there is an inconsistency between the award and the agreement, and that's the fact that you don't define registered office in your draft agreement, and what's the response of the company to that?---The response on that particular issue, there was some questioning around the clause and the fact that we had our one - staple office in Bayswater, so I remembered there was a comment made in relation to that, but being one issue raised and with
Mr Montebello saying that he hadn't gone through that award exercise, there wasn't much further discussion on that.

**** CATHY MAREE PRINCE XXN MR BORENSTEIN
PN703

Well, okay. So Mr Montebello says I haven't gone through that award exercise, but he's attempting to do it at this meeting, correct?---He offered to do that, yes, for us to all sit around the table.

PN704

So he's offering to do this exercise with you in negotiations and what was the response by Siemens to the proposal to go through it during the meeting?---Well, at that point, Mr Bullock pointed out that it wasn't just the award, it was also the undertaking that was given to provide productivity off-set or a business case for the additional things on the claims list and it was apparent that both things hadn't been done and we had come to that meeting with some compromises on some clauses, again to do our best to try and reach agreement and yet on the two matters that Mr Montebello had agreed to come back to the meeting on, he'd not done. And on that basis - - -

PN705

THE DEPUTY PRESIDENT: Sorry, when you say agreed, are you saying there, there was some undertaking by the union to provide a business case or productivity off-sets?---Yes.

PN706

What was the form of that undertaking?---A verbal agreement to actually go back and have a look at the claims list and what might be productivity off-sets to justify those additional claims. Because he'd already put together a proposed agreement with 4 per cent increases, so it was already a generous agreement we had on the table.

PN707

MR BORENSTEIN: Is it the practice of Siemens to put, I suppose, a case for the employees to agree to your claims, maybe for example splitting up the agreements into divisions? Did you present a case to the employees about what benefits they get from doing that?---We actually have monthly meetings with our technicians and we did explain that we would - we were seeking an SBT specific agreement and we explained that it would be a good idea for the business and the employees because it offered benefits like us being able to tailor the agreement to their needs and the company's needs.

PN708

But was there anything that the employees would get, you know, double the wages that they would usually get, or would they just be working the same as they were before? I mean, what incentive was there for employees to say - to go from an agreement that they had in existence which covered the whole of Siemens, where they were all employed together under the employ of Siemens, to say, no, we're going to split you up into different divisions and you're no longer negotiating with your fellow employees?---A user - - -

**** CATHY MAREE PRINCE XXN MR BORENSTEIN
PN709

What's the incentive for the employees?---A user-friendly document that just covers specifically all their terms and conditions, a customised classification structure which would allow us to improve the level of training and development of employees.

PN710

But you agree that that's possible to do in the one agreement, isn't it? So it's
not - - - ?---It's possible to do, yes.

PN711

Yes, and so if - - -

PN712

THE DEPUTY PRESIDENT: Sorry, can I just interrupt you for a second, Mr Borenstein. Sorry to do this to you, but just to go back.

PN713

Can you take me to where in your witness statement, Ms Prince, it says that there was an agreement or an undertaking by Mr Montebello to come back with this business case? You say in paragraph 25 that he was asked to provide such a business case. Where do you say that he actually agreed to do that? It may be there, but I can't see it?---I'll have a look.

PN714

MR MCDONALD: I think I can short-circuit it. It's not in the body of the statement, but it's referred to in exhibit KP8, the email giving the outcome of the meeting.

PN715

THE DEPUTY PRESIDENT: In, sorry? It's referred to where?

PN716

MR MCDONALD: Exhibit KP8 is the email which gives the outcome of the meeting.

PN717

THE DEPUTY PRESIDENT: Yes. That's an email from Mr Bullock?

PN718

MR MCDONALD: That's right, summarising what had been agreed.

PN719

THE DEPUTY PRESIDENT: Yes, but it appears that Ms Prince is now saying that Mr Montebello gave a particular undertaking. That doesn't appear reflected in any of the evidence of Ms Prince. If Ms Prince was going to say that, it would seem to me that that would have been put to Mr Montebello, to give him an opportunity to refute that, should it not?

PN720

MR MCDONALD: I took Mr Montebello directly to the exchange between himself and Mr Bullock, recorded in the minutes of the meeting.

**** CATHY MAREE PRINCE XXN MR BORENSTEIN
PN721

THE DEPUTY PRESIDENT: Yes, but I'm talking now specifically about Ms Prince's evidence that she now appears to be putting before the Commission which is not reflected here. If that is the case, that it's expected that the Commission should take account of what is new evidence from Ms Prince, then that should have been something that Mr Montebello was given an opportunity to refute, if that's the case.

PN722

MR MCDONALD: I don't have anything - I haven't told this witness what to say in the witness box - - -

PN723

THE DEPUTY PRESIDENT: No, no, I understand that, Mr McDonald. There's no accusation coming from me either - - -

PN724

MR MCDONALD: No, no. No.

PN725

THE DEPUTY PRESIDENT: - - - Mr McDonald. I'm simply saying, is that not the case, that's all.

PN726

MR MCDONALD: Your Honour, that's the case and when I make my submissions in due course, I'm mindful of the rule in Browne v Dunn and the like and I was mindful of that at the time I cross-examined Mr Montebello.

PN727

THE DEPUTY PRESIDENT: Yes, thank you.

PN728

MR MCDONALD: I accept that.

PN729

THE DEPUTY PRESIDENT: Yes. Thank you. Go ahead, Mr Borenstein.

PN730

MR BORENSTEIN: In respect of the notes that - I think we're talking about
- you say during the meeting of 11 July, the first meeting, Mr Montebello undertook to compare the award with the agreement, is that right?---No, that was when you had commented yourself that you would do that, that work of checking.

PN731

So are you saying that I commented that I would undertake an examination?
---You would go back and look at the award, yes.

PN732

I would go back and look, so what was my agreement that I undertook to do?
---That you would go back and have a look at the award in relation to the clauses that we had added.

**** CATHY MAREE PRINCE XXN MR BORENSTEIN
PN733

But you don't go as far to say that there was any undertaking to accept your process above our process?---No.

PN734

For all you're aware, I may well have gone away and looked at the award and your inclusions?---Yes, it's possible.

PN735

Excuse me, your Honour.

PN736

When do you say that Mr Montebello undertook to undertake an examination of the award and the agreement?---At the meeting on 26 July.

PN737

Could you just take me to the minutes, the exact minutes, where it says that he undertook to do that?---Yes.

PN738

It will be at tab 3 of your document?---It's in KP3. Page 6 of 11. And it's up in that top paragraph, the very first paragraph.

PN739

Sorry, 6 of 11, whereabouts?---Up in that very first paragraph. That was where it was discussed.

PN740

So it's not actually in the notes?

PN741

MR MCDONALD: Well, I think my friend is misleading the witness. I went through this - - -

PN742

MR BORENSTEIN: Well, it's - - -

PN743

MR MCDONALD: Well, he's saying that it's not in the notes. We went through this with Mr Montebello, it's clearly at page 9 - - -

PN744

MR BORENSTEIN: Your Honour - - -

PN745

MR MCDONALD: - - - it's there in black and white and he's saying something which is just not right and which he knows is not right because he was here when I put it to Mr Montebello this morning. It's just not fair. It's in the minutes and Mr Montebello as questioned about this, so what's the utility of setting traps for the witness when it contradicts what's in the terms of the minutes? On page 9.

PN746

THE DEPUTY PRESIDENT: Mr Borenstein?

**** CATHY MAREE PRINCE XXN MR BORENSTEIN
PN747

MR BORENSTEIN: Your Honour, I was asking - sorry. Well, I withdraw the last question, but I think it's inappropriate for - with the witness in here to actually lead her, but her evidence was that that issue was discussed during her discussions on page 6 of 11, so she's saying it was discussed at a point in the meeting when it wasn't discussed.

PN748

MR MCDONALD: And then he says and so there's nothing in the notes, when he knows it's in the notes because I put it squarely to the witness this morning, on page 9, right in the middle of the page, where it's dealt with in express terms.

PN749

MR BORENSTEIN: I was putting to her there was nothing in those notes there that she was referring to, but - - -

PN750

THE DEPUTY PRESIDENT: All right. Well, let's just on with it, Mr Borenstein.

PN751

MR BORENSTEIN: The words are the words.

PN752

If I can take you to 9 of 11, you say there:

PN753

Geoff Borenstein had advised that he was happy with our approach of incorporating relevant award clauses into the agreement.

PN754

Now, that's inconsistent with the evidence you just gave before, where you agreed that I - that it was never agreed, at the previous meeting, that it was said that I was happy to incorporate the clauses into the award, correct?---Well, it was discussion of the meeting on 11 July, where you had said that you had wanted to tack the agreement on the end, but also you'd looked at our approach and it said that that was something that you'd go back and look at.

PN755

Well, that's a bit different to:

PN756

Geoff Borenstein had advised that he was happy with our approach of incorporating relevant award clauses into the agreement.

PN757

Isn't it?---Yes, I guess that wording doesn't indicate - or maybe overemphasises that.

PN758

Can I ask why the issues regarding incorporation of award are dealt with in separate areas in the notes that you've done?---In the minutes?

**** CATHY MAREE PRINCE XXN MR BORENSTEIN
PN759

Yes. You first refer to page 6 of 11 where Mr Montebello is saying he relied on the award as that was what they were accustomed to, and was advising you that as soon as you plucked the certain provisions, then something may be missed and if the casual clause is left silent, would the casuals get all entitlements. And Mr Montebello advised that if you start to play around with the award, it's unclear what gets changed and what gets missed out. So you'd say from those words it's quite clear, isn't it, that Mr Montebello certainly is asserting that the best course is to incorporate the award as a whole, would you not agree?---Was your first question why they're in two separate parts of the minutes? Because there seems to be - - -

PN760

Ignore that question, and in respect to the second question?---Sorry, could you repeat the second question?

PN761

Would you agree that at the top of page 6 of 11, Mr Montebello is certainly putting forward strong arguments that he seeks the entire award be incorporated into the document rather than taking select provisions and putting it in the body of the agreement?---Yes.

PN762

Yet you then put in some different statements, one statement being what you've agreed was not entirely correct, being the comment in respect of Geoff Borenstein?---I'd like to add to that as well, that these are minutes that I've taken the notes from, that have been the actual discussions in the meeting.

PN763

Yes?---So I'm actually - whatever path they take is what path the meeting takes, so I'm actually writing down what's said in the meetings.

PN764

So even if the statements are incorrect, or are misleading by the participants, whoever they may be, you're just writing down verbose what they actually say?
---That's right, and I guess because there had been no opposition from you to the award incorporation, that it was taken that it was something that was not a problem.

PN765

Now, where do you say there is actually an undertaking from Mr Montebello, where he gives a commitment to Siemens that he will go through the agreement, go through the award and provide a detailed response back to Siemens?---It's actually on KP3, page 9 of 11. Incorporating the award.

PN766

Yes, and which part do you say the undertaking is given?---Where Mr Montebello advised that what he would do is grab a copy of the agreement with the prohibited content taken out as there may be - they may very well be disagreement only in a few areas such as interstate work.

**** CATHY MAREE PRINCE XXN MR BORENSTEIN
PN767

That's not an undertaking?

PN768

MR MCDONALD: Well, I object to this, and the witness will have to leave the court.

PN769

THE DEPUTY PRESIDENT: Yes. If I can ask you just to remove yourself from the courtroom just temporarily, please?---Yes.

<THE WITNESS WITHDREW [2.52PM]

PN770

MR MCDONALD: I don't have the note of the cross-examination in relation to this issue, your Honour, because I was on my feet at the time, but my very clear recollection of the question of Mr Montebello is that he has agreed, during the course of the cross-examination, that he - - -

PN771

THE DEPUTY PRESIDENT: Yes. That is also my recollection, Mr McDonald.

PN772

MR MCDONALD: - - - agreed to undertake this review.

PN773

THE DEPUTY PRESIDENT: And I think at the time you even pointed out the use of the word agreement in there was probably a misprint or - - -

PN774

MR MCDONALD: Reference to award, and that that was not disputed in Mr Montebello's evidence. So my friend is not in a position to be putting to the witness in cross-examination propositions which are at odds with his own evidence, own witness's evidence, albeit in cross-examination.

PN775

THE DEPUTY PRESIDENT: I think that's right, Mr Borenstein. It was conceded by Mr Montebello at the time.

PN776

MR BORENSTEIN: Without transcript, I take your Honour's point, but - - -

PN777

THE DEPUTY PRESIDENT: Well, I mean, I might be proved wrong, it wouldn't be the first time, but I recall that particular part of cross-examination particularly because Mr McDonald read the particular part out. I've actually highlighted it here in my copy and he at the time, as I stated, drew attention to the fact that the use of the word "agreement" was probably a mis-use and it should have read "award".

PN778

MR BORENSTEIN: I recall that, your Honour.

PN779

THE DEPUTY PRESIDENT: I further recall Mr Montebello acknowledging it was in fact the case, when asked that by Mr McDonald.

PN780

MR BORENSTEIN: Well, yes. I accept that, your Honour, in the event he was referred to that part of the notes which don't talk about an undertaking or an agreement. It talks about a comment, that Mr Montebello says, "I'm going to go and have a look at the agreement in the award", but there's a real issue in this case, it appears, to see whether this is some formal undertaking that he gives which is going to hold up the whole agreement, or whether it's a comment saying, well, I'm going to go away and have a look at the award and the agreement to check how they operate, which in my submission is something that people do all the time in negotiations and a failure not to do it, or to do it in a limited way, doesn't mean they're not genuinely negotiating, but certainly I think I should be able to raise the point with the person who wrote these notes, that it doesn't talk about an agreement to or an undertaking.

PN781

It's just Mr Montebello saying, "Well, I'm going to go and check these two documents" and she said it's an undertaking - she puts it in the terms of an undertaking, such that it's quasi-binding and - - -

PN782

THE DEPUTY PRESIDENT: Yes. Look, Mr McDonald, I'm inclined to let the question be asked and answered on the basis that I'm not 100 per cent sure of what was said on transcript at the time. The transcript will obviously reflect that when it becomes available.

PN783

MR MCDONALD: So be it. And we haven't - - -

PN784

THE DEPUTY PRESIDENT: Subject to what - - -

PN785

MR MCDONALD: Our note is, "You've agreed to check the award to see whether there was anything else which should be included." Answer, "Yes". "At the meeting with IAC, you also said you would do this?" Answer, "Yes".

PN786

THE DEPUTY PRESIDENT: Yes.

PN787

MR MCDONALD: So I don't - - -

PN788

THE DEPUTY PRESIDENT: And that is accordance with my recollection.

PN789

MR MCDONALD: I don't see Mr Borenstein can possibly pursue this matter, but I'll abide by your ruling, your Honour.

PN790

MR BORENSTEIN: I'm happy to - - -

PN791

THE DEPUTY PRESIDENT: That's in accordance with my recollection, Mr Borenstein. I don't have transcript available to me at the moment. My inclination to let you continue with the question was based upon that and that only, simply giving you the benefit of the doubt that it may not have been. Given the notes that have been taken by Mr McDonald and Mr Rinaldi, I'm reasonably satisfied that it was asked and answered and I don't think it takes us very much further, if I am in fact to allow that question. So based upon what's been said, I'm not going to. Ms Prince can come back.

<CATHY MAREE PRINCE, RECALLED [2.57PM]
<CROSS-EXAMINATION BY MR BORENSTEIN, CONTINUING

PN792

MR BORENSTEIN: Ms Prince, can you also advise us, you mentioned that Mr Montebello failed to provide you - well, in your eyes, failed to come back regarding a comparison of the agreement and the award. What other tasks do you say he did not complete?---Also the productivity off-sets against the additional claims, as in those in the claims list.

PN793

If I could provide you with the second statement of Mr Montebello?---Thank you.

PN794

If I could take you to paragraph 14 of that statement? Could you read that statement?---Read out - - -

PN795

Sorry, read that paragraph 14. You've read that?---Just one moment. I'll just read through it. Okay, I've read through that. Yes.

PN796

Now, that's a correct response, isn't it, to the issue regarding the business case? Do you agree with that?---No, I disagree with that. No, again Mr Montebello said we were poles apart and he also said the guys are productive already.

PN797

There's no - you say Mr Montebello agreed to do that, but there's no obligation, is there, for negotiating parties to actually provide a financial business case, why a certain claim is raised, is there?---Are you talking about a legal obligation or what kind of - - -

PN798

Well, say a legal obligation, if you're aware?---I'm not aware either way.

PN799

Okay. I put it to you before that Siemens didn't put a business case for the benefit of employees, about why they should agree to certain claims that Siemens wanted, did they?---Well, we certainly explained to the employees why we were looking at a changed scope with a specific agreement to the employees.

PN800

That's right, but that was benefit - you explained to them why you were seeking it and that was because it benefited Siemens, correct?---No, we saw it as a benefit all round, to the employees as well.

PN801

Well, how do you - I put to you that that's - - -

PN802

THE DEPUTY PRESIDENT: If it's of any assistance to you, Mr Borenstein, what seems relevant to me about this particular matter is whether or not there was any undertaking, for want of a better word, by the union to comply with such a request, not you know, whether that request may or may not have been made. That doesn't seem to me to be relevant to what I have to consider. It may well be relevant to what I have to consider if there were undertakings to do certain things, and that those certain things weren't done. I did say to you, I made certain comments to you before lunch along those lines.

**** CATHY MAREE PRINCE XXN MR BORENSTEIN
PN803

MR BORENSTEIN: Yes. I accept that, your Honour. I certainly - in my submissions, there's going to be submissions on even if certain undertakings were given, that does not necessarily follow that a party is not genuinely negotiating.

PN804

THE DEPUTY PRESIDENT: No, no, and you're entitled to make those submissions - - -

PN805

MR BORENSTEIN: Goes to the context - - -

PN806

THE DEPUTY PRESIDENT: - - - which is why I raised it with you beforehand, but I'm simply saying to you, going into depth with this witness, or any other witness for that matter, about why the company asked for this and whether there was any legal obligation upon anybody to comply with it doesn't seem to me to take us very far, that's all.

PN807

MR BORENSTEIN: Now, in respect of - if I could go back to the incorporation of the award that you said Mr Montebello didn't get back to you on, you were aware at the time, though, that that matter could have been settled by the company agreeing to incorporate the award as a whole, into the agreement, correct?---Yes.

PN808

Yes. In respect of - sorry, I withdraw that. In respect of any further undertakings you say Mr Montebello agreed to undertake, what were they?---So I've explained the award comparison and also the productivity - - -

PN809

Yes, the business case?---Yes, the business case.

PN810

Is there anything else?---No.

PN811

In respect of - no, I withdraw that. It's true, isn't it, that every time this generic agreement that Siemens refers to - are you aware of the generic agreement? Are you aware of the document that Siemens refers to as the generic agreement?---The generic agreement? You're talking about your own deed and agreement?

PN812

That's correct. Siemens, I think, in the notes calls it the generic agreement.

PN813

THE DEPUTY PRESIDENT: Yes, I think it's been marked as Siemens 4. If you want to familiarise the witness with it, then a copy is available to hand to the witness.

**** CATHY MAREE PRINCE XXN MR BORENSTEIN
PN814

MR BORENSTEIN: Yes. All initiation of talking about that document was initiated by Siemens, isn't it, during the negotiations?---Yes, except for the meeting on 20 December.

PN815

Yes, but in the negotiations, in respect of the negotiation of this SBT agreement, it's Siemens who has initiated all the references to this document?---I think it's because it was understood that that agreement was going to be tabled at any time and that's why we had an interest in finding out when that would be tabled.

PN816

Right. There's nowhere in your notes, unless you can show me, where
Mr Montebello says that the - at the first meeting on 11 July, I'm waiting on an agreement from the industry or anything of the like, and I'm going to table that document at some stage through these negotiations. Do you agree with that?
---Actually, in the discussions that Mr Montebello had with us, he was talking about we were only one or two clauses off having the deed - co-compliance - - -

PN817

THE DEPUTY PRESIDENT: Well, I don't know that was the question, with respect, Ms Prince. I think the question was is there anything anywhere in your statement or in your notes where it suggests that Mr Montebello had said that he was going to table such an agreement at some stage in the negotiations?---Sorry, I misunderstood. So, no, there's nothing in my notes, apart from the minutes on 20 December.

PN818

MR BORENSTEIN: You were aware, weren't you, and I think it's commented somewhere in the notes, that these negotiations were considered to be starting afresh and both parties were negotiating on the basis that, you know, the negotiations had basically started afresh from, I suppose, the initiation of bargaining period on 20 June 2006?---No, that was news to me when I read Mr Montebello's statement. So that was not made clear to me at any time.

PN819

And you never queried that issue with Mr Montebello during the negotiations?
---Only to find out where the agreement was at, at which time Mr Montebello didn't say, no, we're not seeking that generic agreement. He always gave us an update.

PN820

Now, there is a number of issues between the parties, aren't there? There are a number of major issues still between the parties in the negotiations?
---Disagreements, you're talking about?

**** CATHY MAREE PRINCE XXN MR BORENSTEIN
PN821

Yes?---Yes.

PN822

One of them is something that I think Yvette Dinello calls something that's non-negotiable, and that's the scope clause. Do you have a similar view, that the scope clause is non-negotiable?---Yes.

PN823

So even if the union gave you the business case that you say the union undertook to do, unless the union changed its view on the scope clause, there is going to be no agreement reached? Is that correct?---I wouldn't have the authority to even comment on that. If that was presented to us, that if you agree to this, this and this, but we keep the scope as is, then we would take that back and consider it.

PN824

That's a bit inconsistent with something being non-negotiable, and you just advising that it might be negotiable. Which one is it?---Well, in relation to whether there was an offer put forward in its entirety, then there would perhaps be something we could look at.

PN825

So you believe that what Yvette says, in it being non-negotiable, is not exactly right?---I can't comment for IAC.

PN826

Would you doubt that - would you believe that Yvette would lie about that issue?
---I can't represent what Yvette's thoughts or what IAC's company's views are on that at all.

PN827

Okay. So it might be that Yvette was lying in respect of that?---In respect to what, sorry? I don't understand.

PN828

In respect of saying that the scope clause is non-negotiable?---But how - - -

PN829

MR MCDONALD: This really does seem to be a pretty silly line of questioning, with respect.

PN830

MR BORENSTEIN: It's in the evidence of the respondent to this matter and I want to - - -

PN831

THE DEPUTY PRESIDENT: I think it's really been answered anyway, hasn't it, Mr Borenstein? I think the witness has said that she's not in a position to comment.

**** CATHY MAREE PRINCE XXN MR BORENSTEIN
PN832

MR BORENSTEIN: So if the union provided Siemens with a business case which established that the employees should get 7 per cent per year of service, is it your view that the scope clause might - if the scope was to cover all Siemens employees, that that's something Siemens might agree to?---Sorry, I don't understand. You're talking about 7 per cent and then the scope.

PN833

Yes?---Can you repeat that question?

PN834

You said that you were waiting for the union to provide you with a business case for the wages, correct?---Yes.

PN835

And are you saying that that's holding up negotiations?---The - not presenting the business case?

PN836

Yes?---Yes.

PN837

But you say that's preventing the parties from actually reaching agreement?---It's definitely holding up negotiations, which was your first point.

PN838

I'm putting to you that if the union does present a business case, whether or not you accept it or not, but if they do present a business case and they still seek 7 per cent throughout the negotiations, would you position change on that matter, or would the parties still be in dispute on the issue of 7 per cent?---We'd obviously have to see the business case. If there was a very strong business case put forward, we'd certainly consider it.

PN839

Okay, and if you consider there wasn't a strong business case?---Then there would be a problem, yes, with us being able to justify a 7 per cent increase in our business.

PN840

Now, at no time did you ever provide the union with the minutes that you drafted, did you?---No.

PN841

Can I ask why you never provided them with the minutes?---Yes, it was a document that I put together for us to actually keep track of where things were at, to make sure that we actually followed up on all our actions, so it's just something I'm very thorough with, with every meeting. I'll take minutes and then send it out to the company personnel attending.

**** CATHY MAREE PRINCE XXN MR BORENSTEIN
PN842

And you didn't think it would be useful to provide a copy to the union, to make sure both parties understood what each other were doing?---At the time, no, but putting it that way, if there was mutual agreement for a minute-taker to be presented, I'm happy to present that at the next meeting.

PN843

I have no further questions, your Honour.

PN844

THE DEPUTY PRESIDENT: Thanks, Mr Borenstein?

PN845

MR MCDONALD: No re-examination.

PN846

THE DEPUTY PRESIDENT: Ms Prince, you can step down. Thank you for your evidence. You're free to stay if you wish, or leave, as you desire?---Thank you.

<THE WITNESS WITHDREW [3.11PM]

PN847

MR MCDONALD: Just getting the next witness, your Honour.

PN848

THE DEPUTY PRESIDENT: Good, thank you.

<ANTHONY DAVID HANDAKAS, AFFIRMED [3.12PM]
<EXAMINATION-IN-CHIEF BY MR MCDONALD [3.13PM]

PN849

MR MCDONALD: Mr Handakas, could you state your full name?---Anthony David Handakas.

PN850

Your address is (address supplied)?---My office address, that's correct.

PN851

You've prepared a statement for the purposes of this proceeding?---I have.

PN852

You have that with you?---I do.

PN853

That's a statement dated 3 October 2006, together with six attachments?---That's correct.

PN854

Are the contents of that statement true and correct?---Yes.

PN855

I seek to tender that.

EXHIBIT #SIEMENS 6 - STATEMENT OF ANTHONY DAVID HANDAKAS

PN856

MR MCDONALD: I have no further questions.

PN857

THE DEPUTY PRESIDENT: Thank you. Mr Borenstein?

PN858

MR BORENSTEIN: Thank you, your Honour.

<CROSS-EXAMINATION BY MR BORENSTEIN [3.14PM]

PN859

MR BORENSTEIN: Mr Handakas, could you advise - if I could take you to your notes, or your minutes as you call them? If I could take you to tab 3 of your statement?---Yes.

PN860

You see there in the column that states "Action", it says:

PN861

MM to check out wording.

PN862

I assume that's Mr Montebello, not your counsel?---Mr Montebello would be MM, yes.

PN863

MR MCDONALD: I'll be the next one, Mr Borenstein.

**** ANTHONY DAVID HANDAKAS XXN MR BORENSTEIN
PN864

MR BORENSTEIN: It's getting to that stage, I think.

PN865

MR MCDONALD: I'm sure Mr Montebello and I would get on very well together.

PN866

MR BORENSTEIN: "MM to check out wording", that's not a reference for Mr Montebello to do anything, is it? That's a reference for you to redraft these words and provide them to check out the wording, is that correct?---No. Mr Montebello was going to re-look at the wording as there was some confusion about where the wording came from in the award and Mr Montebello was going to go away and just reconfirm that.

PN867

But it's true that Mr Montebello advised you that he wanted certain issues deleted from that redundancy clause, didn't he?---He did.

PN868

He did. Right. When you say Mr Montebello is to check wording of the transmission of business clause, is that just a comparison between the transmission of business clause and the award, is it?---When we got to clause 18, I think it was basically just saying that, well, that looks okay, but I'll need to check the wording.

PN869

Okay. Now, you've provided there that in respect of inclement weather, Mr Montebello is to provide a copy of the inclement weather clause that he sought be included in the agreement?---Yes, it was something that hadn't come up before and Mr Montebello mentioned that the agreement probably wouldn't have seen it, because we're not members of NECA. So he was going to provide us with a copy of that.

PN870

Now, is inclement weather one of the major stumbling blocks between - one of the major issues in the eyes of Siemens?---We haven't seen the clause that's been referred to, so it's not a stumbling block.

PN871

I'm saying have you got a clause that you seek?---There was a clause, under clause 25 under inclement weather that was brought from the existing agreements, but apparently there was some movement from Mr Montebello's reviews, through I guess discussions with NECA that would bring some changes to that, and he was going to provide that so that we could review it.

PN872

Is it your view that the inclement is an issue that is a major roadblock between the parties or it is something you see just being resolved?---Yes, I think once we see the clause, we can determine what the impact of that is.

**** ANTHONY DAVID HANDAKAS XXN MR BORENSTEIN
PN873

You don't see there being a big issue over this clause?---Unless there is some strange temperature numbers or anything, I mean - - -

PN874

That's right. Reaching agreement on this clause is not going to affect, at least Siemens' position, in any substantial way on the other major issues that are in dispute between the parties, is it?---I think, you know, each clause in isolation can bring issues, but I think you need to look at this holistically.

PN875

Yes. I mean, once you - if you reach agreement on inclement weather, is that going to change Siemens' position on the wages claim that is in dispute between the parties?---It may well do. I mean, if inclement weather was particularly important from the ETU perspective, then it may have some bearing on other clauses in the give and take of negotiation. Perhaps.

PN876

No, I'm talking about this negotiation. Is there any - if the parties reach agreement on inclement weather - - - ?---Yes.

PN877

- - - and say that the union comes along and agrees to your claim on inclement weather - - - ?---Yes.

PN878

- - - is that going to have any direct affect on your position in respect of wages back on the union?---I wouldn't have thought so.

PN879

There's no big issue there. In respect of negotiations, is there - do you say that Mr Montebello has failed to undertake certain actions that he agreed to?---There are certain actions that were committed to at the meetings that we haven't had a response to so far.

PN880

Such as?---I'll take you through the minutes.

PN881

Do you know off the top of your head?---Yes. He committed to providing some documentation in relation to confidentiality agreement, in relation to provision of - - -

PN882

I'll just stop you there. In respect of confidentiality agreement, to put into the workplace agreement?---No, in order to see the document which is effectively the EBA and the deed of co-compliant document from the union, which we haven't received as yet. It was stated that we needed to sign a confidentiality agreement and we said we'd be pleased to receive any documentation they might have to offer.

**** ANTHONY DAVID HANDAKAS XXN MR BORENSTEIN
PN883

So you were willing to sign a confidentiality agreement?---Be willing to see what he had, if he sent it through.

PN884

If he sent through what, the confidentiality agreement?---Well, at least that, yes.

PN885

I see?---So that's one item, off the top of my head.

PN886

Yes. Anything else?---Certain clauses that had to be re-looked at - - -

PN887

Can you give an indication?---We just talked about the inclement weather. There was right of entry clause that Mr Montebello was going to have a look at maybe rewording. Under redundancy as well, that we already covered, there was some wording to be looked at there. There will be a number of others I suppose as well, but not off the top of my head.

PN888

You're not aware of them off the top of your head? Can I hand up an agreement? Can you go to attachment 10 of that statement? It's towards the back. It's
about - - - ?---I have it, yes.

PN889

Sorry, it's a copy of Mr Montebello's first statement. It's about the fifth page from the back. It's got a table on the page?---Yes.

PN890

Yes. If you go to the page before that, are you aware of this letter that was sent from the ETU to - - - ?---I've seen this, yes.

PN891

- - - Siemens? Seen this, yes?---Yes.

PN892

Now, if I could take you back to the table, you agree, don't you, that the scope agreement is a major issue in these negotiations?---Yes.

PN893

Yes. Do you recall Yvette saying that it's a non-negotiable issue?---Yes.

PN894

Yes. Do you agree that currently the parties have not agreed on this issue?
---That's correct.

PN895

Consistent with what Yvette says, do you say that unless the ETU concedes to this scope issue, agreement won't be reached?---I guess in fullness in negotiations, anything is possible, but our position is that we want a specific site agreement.

**** ANTHONY DAVID HANDAKAS XXN MR BORENSTEIN
PN896

So there would have to be some pretty amazing concessions by the ETU to get you to agree to our scope option?---Victoria-wide, yes, sure.

PN897

Is that right?---Yes.

PN898

So that issue is still in dispute. In respect of the employees who are to be covered by the agreement, you agree that it's the ETU's position that the employees to be covered are those in all of Victoria, but additionally who are covered by the classifications in the award, whereas Siemens are seeking to include their own form of classifications, is that your understanding?---Classifications relevant to the South East Water - - -

PN899

That's right?--- - - - business. That's what we're looking for, and it's been noted that Mr Montebello looks at a wider - - -

PN900

Yes. So the award classifications, I suppose, would cover more types of different employees than the classification structure you propose, which is just directed at your existing employees' business?---It would.

PN901

That's still in dispute between the parties?---Yes. I mean, it hasn't been canvassed in full. That's been a position that's been stated.

PN902

They're the positions that have been stated? Yes?---Yes.

PN903

Incorporation into the award, I think it's safe to say that your position on that is to incorporate select provisions of the award actually in, I suppose, the body of the agreement whereas the union is taking the view you just have an appendix which contains the full award minus prohibited content and - as an appendix to the agreement? Is that your understanding of, in a nutshell, that claim?---Yes. We made a decision to bring in the relevant clauses into a single document. Having done that, we understand the ETU is looking to have a full - fully co-compliant award document.

PN904

Yes, as an appendix?---As an appendix, yes.

PN905

From the notes, that's been discussed quite substantially during the negotiations?
---Well, later in the piece that was a position that was taken by the ETU, to say that the structure of our document was not - they weren't happy with it, they were looking for something different.

**** ANTHONY DAVID HANDAKAS XXN MR BORENSTEIN
PN906

That's something that's consistent with what the existing practice was under the existing EBA at the time of negotiations?---They were separate documents.

PN907

Yes, and I'm not sure whether you're aware of this, but the actual agreement, the 2003 agreement, actually incorporates the terms of the award as terms of the agreement as well? Are you aware of that or not?---Yes, we - we - in our original document, we referenced the award?

PN908

No, in the 2003 agreement that was existing - - - ?---At the time? It referenced the award. It made reference to the underpinning the award, is that what you're saying?

PN909

That's your understanding?---Yes.

PN910

Duration of the agreement, five years, and you I think were seeking three years, or two years?---Always three years.

PN911

Three years. And that issue is still in dispute?---It's something that's been proffered by - to five years, later in the piece. It's neither agreed nor disagreed.

PN912

If you turn over the page, there are a number of other claims set out on that page which the ETU asserts are still in dispute. I don't know if you have any real issue with them, but if you have a quick read of that and tell me if there's anything inconsistent with your view?---Hours of work. I think there we proffered a buy-out of the 36-hour week to 38-hour week, so buying that out and offering a flexible - a flexi-day on top of the roster days if there was work, so - - -

PN913

Sorry, so that - - - ?---Is slightly different to what's proposed there.

PN914

Are you saying that you agree to a 36-hour week or you don't?---In our document that we put forward, we proffered to our employees a buying-out of the 36-hour week to a 38-hour week, and offering the flexi-day for those that would wish to take it.

PN915

So currently they're actually on a - they're on a 36-hour week now, aren't they?
---They are.

PN916

And you are proposing a scheme where they work 38 hours, but there's a flexi-day somewhere in there?---And be paid for that 38, yes.

**** ANTHONY DAVID HANDAKAS XXN MR BORENSTEIN
PN917

And compensating for that?---Yes.

PN918

Has that been accepted by the union negotiators?---That was rejected out of hand at the 28 July meeting, and we requested Mr Montebello to check with the employees to see if they would look at that proposal, which he then came back and subsequently said that they would not, so that's where it's left.

PN919

That's the only real issue you have with that table?---In terms of consistency?

PN920

Yes?---Wages, 4 per cent for each year is not correct. In our position, we were offering 2, 3, 2 and 2.

PN921

Okay, so what's that? 5 per cent the first year and 4 per cent the second?---Two, three, two, two.

PN922

That's over two years?---With the further - with the last year following on, as is normal practice.

PN923

Okay, and the last year, what was the increase for - are you saying from March this year?---March 2006.

PN924

And what would the increase be then?---Two.

PN925

Okay. You've applied that since that time?---We've agreed to pay 2 per cent to our employees, even though there's not an agreement in place, that's correct, backdated to 1 March.

PN926

Yes. Is there anything else?---That seems about right.

PN927

I have no further questions, your Honour.

PN928

THE DEPUTY PRESIDENT: Thank you. Mr McDonald?

PN929

MR MCDONALD: No re-examination.

PN930

THE DEPUTY PRESIDENT: Thank you. Thank you for your evidence. You can step down now and you're free to stay or leave, as you wish.

<THE WITNESS WITHDREW [3.31PM]

PN931

THE DEPUTY PRESIDENT: I might just take a brief adjournment. That's the end of the witness evidence on behalf of the respondent?

PN932

MR MCDONALD: That's correct.

PN933

THE DEPUTY PRESIDENT: We might just take a brief five-minute break. Thank you.

<SHORT ADJOURNMENT [3.31PM]
<RESUMED [3.37PM]

PN934

THE DEPUTY PRESIDENT: Yes. Go ahead, Mr Borenstein.

PN935

MR BORENSTEIN: Thank you, your Honour. I might hand up a copy of some submissions. I just whipped these up in the five-minute break just then.

PN936

THE DEPUTY PRESIDENT: Sorry?

PN937

MR BORENSTEIN: I just said I whipped them up in the break just then.

PN938

THE DEPUTY PRESIDENT: Did you? Right.

PN939

MR BORENSTEIN: I'll try and be as brief as possible. Again, as I said at the start, we see these applications and the object of the Division of which these applications fall within as being to make sure that employees are able to have a fair and secret ballot, to determine whether they want to take industrial action. So that's the whole concept behind these provisions and the reason these provisions are introduced to the previous scheme which allowed unions just to file a notice straight away and take industrial action. Now, as a result of some federal government alleged view that unions coerce their members to actually take industrial action, the federal government saw fit to give the members a chance to have a secret ballot before that could occur to determine whether they actually wanted that to occur, and that is what this Division is about.

PN940

We submit with that object in mind, we say the Commission's focus should not be in looking at all the minutiae of the negotiations. We submit that, yes, you can give them a glance, make sure everything is going along all right, but to actually go through word by word of the negotiations and try and determine what one person said, what another person said in respect in the negotiations, whether one person thinks one person is being lazy or not, or hasn't done something that the other person expected, we say that's not something that this Division seeks to regulate or seeks the Commission to examine. We say that the test of whether someone is genuinely trying to reach an agreement, that the Commission is expected to - or must look at, is to be determined in conjunction with that object that I've just stated.

PN941

I'll go straight to page 3 of my submissions which deal with this issue of genuinely trying to reach agreement, and section 461 and the preconditions therein. As your Honour knows, the preconditions are that the union has, during the bargaining period, genuinely tried to reach agreement with the employer. The union is genuinely trying to seek agreement and the applicant, being the union, has not engaged in pattern bargaining.

PN942

MR MCDONALD: Can I just inquire what time the Commission proposes to sit to? I see this is a 23-page submission with about 100 paragraphs.

PN943

THE DEPUTY PRESIDENT: Yes. I wasn't expecting that Mr Borenstein was going to regurgitate it for me, were you, Mr Borenstein? You were simply going to go through a summary? I was intending to finalise this matter, if I could, by some reasonable hour of the afternoon.

PN944

MR MCDONALD: Yes. We certainly had that in mind because - - -

PN945

MR BORENSTEIN: I can give a commitment to be half an hour. Is that - and if my friend is half an hour - - -

PN946

THE DEPUTY PRESIDENT: Yes, and how long did you intend to be, Mr McDonald?

PN947

MR MCDONALD: Well, I wouldn't be more than half an hour.

PN948

THE DEPUTY PRESIDENT: Yes. That being the case, then I think we'll go
on - - -

PN949

MR MCDONALD: If Mr Borenstein is going to impose that stricture on himself, I'll sit down. Start talking.

PN950

MR BORENSTEIN: I thank my friend for his cooperative approach.

PN951

THE DEPUTY PRESIDENT: He never said anything about submissions in reply.

PN952

MR BORENSTEIN: At page 4 of my submissions, I state the facts as we see them and we say that the facts are still, even after the evidence has been examined and cross-examined, are the same as what's presented there on page 4. We submit that any reliance that's attempted, and certainly no questions were put to Mr Montebello about any negotiations in 2005 or March 2006, but in any event, we say they are relevant to this proceeding. We say it was clearly the approach of both parties to start afresh post Work Choices and a new bargaining period was filed and all the negotiations focused on the logs of claims and the agreements presented during the negotiations from July onwards. We submit none of the negotiations involved any reference to anything that - any documents presented at any negotiations in 2005 or in March 2006.

PN953

Clearly, from the evidence you'll see that the union - probably the major issue between the parties was the issue of scope. The union sought an agreement that applied through the whole Siemens, in its business in Victoria. The employer sought to have two agreements, both limited to particular divisions of Siemens. As your Honour would maybe know, the policy about having an agreement applies to the whole of the company interstate, is that it can't create new divisions to avoid the scope of agreements. A clear example of that is if there's some new work that comes along that one of these divisions would normally do, but the company wants to avoid the existing agreement, it can set up a new division and thereby avoid the scope of that agreement.

PN954

It's a clear strategy that companies can and so use. I'm not saying that Siemens has used it, but it certainly explains the policy of the union in its approach to this issue and I think that's explained in Mr Montebello's first statement. This roadblock actually occurred from the very beginning in trying to organise meetings to negotiate with Siemens. Siemens refused to meet as a group. They only sought - they said, "Look, we'll only meet with you as separate divisions" and it was explained by the union that we want an agreement to apply to the whole of Victoria and we would prefer to meet and we treat these negotiations as a meeting with Siemens and not a particular division, and the minutes reflect that in the notes of the Siemens' witnesses.

PN955

The union wanted to actually meet with the employer and I suppose could have taken the view, well, if you're not willing to meet as a whole, then you know, there's no negotiations and we'll take it and we'll go our own ways, but in good faith, the union accepted Siemens' proposal to meet separately and of course that meant that the union had to double up on all its negotiations in advising of what it wanted and had to repeat things every time it met with these people because they weren't combining, they weren't similar negotiations, or they weren't the same negotiations. We submit that there were six quite lengthy negotiation meetings between the parties, with a large amount of notes that detail that both the log of claims raised by Mr Montebello were discussed and negotiated upon, and there are many references to them throughout the negotiation minutes.

PN956

Clearly not as much as in relation to SBT's agreements, but that's because instead of putting counter offers, et cetera, in respect of the log of claims from the union, it just outright rejected them and said, "Provide us with a business case or we just reject them." Therefore, the negotiations over those were not as long as those over the issues in the agreements tabled by - the two agreements tabled by the employer. Again, this is all complicated by the fact that the union is seeking one agreement and SBT and the other division, South East Water, are seeking separate agreements. So again, the union is advising each party, in effect, doubling up about the issues that they each have with their agreements.

PN957

Now, these negotiations went on for some time between 11 July to 1 September 2006 and at the end of it, the parties were still apart significantly. They were still apart in what the negotiator from South East Water, Ms Yvette Dinello, calls non-negotiable, and that's the scope - issue over scope. We would submit that your Honour should find that even if the union provided it with a business case, complied with that alleged undertaking, and even if the union, instead of coming back to the meeting and wanting to go through the award and the agreement at the meeting rather than providing it before the meeting, even if those two had occurred, that's not going to get over the scope of agreement issue. We submit the same applies to the rest of those claims in the table I provided in my submissions.

PN958

We say that - and I'll get to this later - to cling to certain undertakings that are alleged to have been made by Mr Montebello, and to say his failure to do so means that the union is not genuinely trying to reach agreement, despite the fact that six negotiations, lengthy negotiations, have taken place regarding all of these matters, and we submit it cannot be shown that any of these alleged failures to comply with these undertakings have prevented these matters from being agreed to. We say it's clear that the company knows what the union is seeking, it's provided a log of claims which details the extra claims and the company has refused to agree to them, and then they come along and say, "We haven't agreed to them because you didn't comply with your undertaking to before a meeting to come along and give us a report on the differences between the award and the agreement we propose", in a situation where the union has told the company we can get around this whole issue if you just incorporate the whole award.

PN959

To say the union has not genuinely tried to reach an agreement, therefore a ballot order should not issue because it failed to provide this report before the meeting would have the effect of unions refusing to undertake to do these things. Mr Montebello could have just said, well, we've presented you with our option, it's a perfect option, you haven't provided us with any reason why it can't occur other than the fact that you say you have gone through and done it a different way, Mr Montebello has said, as it's alleged his evidence was, so I'll agree to look through the award and the agreement before the next meeting. But certainly in the future, if your Honour finds that failing to abide by this agreement meant that he's not genuinely trying to reach an agreement, well no union would ever agree to do that.

PN960

They'd stick to their claims and say, no, we're not going to undertake anything onerous. We've got our clause which settles this matter. It's perfectly acceptable, it's been done in many other agreements in other industries and by other employers, it's a common thing to do, and we see that as a perfectly rational way of dealing with this issue and we're not going to go through and do anything and undertake an onerous examination of the award and the agreement. In respect of the business case, again that's another issue. There's no legal obligation to provide a business case for the basis of your claims and I will go to authority on that, but Mr Montebello is alleged to have said he would - and it's disputed, but it's alleged that he said he would provide a business case.

PN961

The evidence is not disputed that he came back and said, "I'm not going to provide you with a business case. Employees want these claims and that's what I'm seeking." To hold that he's not genuinely trying to reach an agreement because he did that we say is not - first of all, there's no authority for such a result occurring, and secondly, why would a union ever in the future, if such a result has come about, ever agree to do such a thing? The union would just say there are our claims, our members have told us to get them, we're not going to provide you with any details behind it or we're not going to agree to prepare anything as a basis for it because we don't have to and why would we? If we undertake to do it and then don't do it or don't do it to the satisfaction of the employer, we might be subject to not being able to get a ballot order.

PN962

We submit it just goes against the whole sort of policy behind the Act and scheme of the Act for such, we say, a minor thing to taint the whole negotiation process. It goes against - it discourages unions from undertaking to do anything because if they fail to do it, it taints the whole process. Now, in respect of the definition of genuinely trying to reach agreement, I think your Honour has been referred before in previous matters to the decision of Marshall J and we say the position there is that a union has to be willing to consider any offers by the other party and that's what is considered to be genuinely trying to reach agreement. Doesn't have to agree to the other party, it just has to consider their position and respond accordingly.

PN963

Certainly it's established that the inability of the parties to actually reach agreement does not mean that the parties aren't genuinely trying to reach agreement. I have that decision and I'll hand that up to your Honour for your records. Now, the next proposition that I assume is alleged is the fact that the union has never put its claims in a formal draft agreement. We say that the fact that there is no formal draft agreement that's been put by the union has no - does not mean that the union is not genuinely trying to reach an agreement, and I'll hand up the decision of Wesfarmers which supports that. If I could take your Honour to paragraph 58 of that decision?

PN964

THE SENIOR DEPUTY PRESIDENT: Sorry, page?

PN965

MR BORENSTEIN: Sorry, paragraph 58.

PN966

THE DEPUTY PRESIDENT: All right. Yes.

PN967

MR BORENSTEIN: I'll start off at paragraph 57, where it says:

PN968

Industrial action taken by an organisation during the bargaining period is to be protected and must be taken to support or advance claims made in respect to the proposed agreement. Counsel for Premier Coal argued that the proposed agreement referred to in 170ML(2)(e) is nothing less than a draft capable, if executed, of certification under the Act. Counsel accepted that on his argument, neither a log of claims nor heads of agreement nor a partial draft of claims would suffice.

PN969

At paragraph 58:

PN970

The minister's position was the same as that of Premier Coal Counsel for the minister accepted that upon the construction she advanced, every party to negotiations would have on the table a complete document containing all the claims they wanted to advance. A log of claims incorporating in effect in an agreement in certifiable form.

PN971

His Honour French J says:

PN972

I do not accept that construction. In my opinion -

PN973

and he goes on:

PN974

- the proposed agreement in section 170ML(2)(e) is the desired in point, described generically of the negotiation process. It does not require that there be in existence a draft of a certifiable agreement which has been prepared or is proposed by the organisation undertaking the industrial action.

PN975

We therefore say that there certainly is no requirement for the test of whether a person is genuinely trying to reach an agreement for there to be a draft agreement in existence. We submit that the union has made clear what its claims are. Any attempt by the employer to say we don't know what the 7 per cent wage increase means or what a $300 availability allowance means we say just cannot be accepted by your Honour. I don't have a copy of this decision. It was handed down at 12 o'clock today by the - - -

PN976

THE DEPUTY PRESIDENT: Right. It's the Heinemann decision?

PN977

MR BORENSTEIN: The Heinemann matter. I might hand up this copy after I read it out. It says at paragraph 15:

PN978

Section 461(1) specifies the conditions which must be met before the Commission can make a ballot order. It does not require that the union identify all of the claims to be pursued.

PN979

It goes on:

PN980

If it were necessary to identify all the claims in respect of which agreement was sought at the time of the ballot application, that might lead to artificiality in negotiating behaviour.

PN981

I'll hand that up for your Honour to read. It has a couple of markings on it, but I don't think they - they're just highlighting. Copy for my friend.

PN982

MR MCDONALD: I've got a copy of it.

PN983

MR BORENSTEIN: You have a clean copy? I thank my friend for that. Of course, this matter was dealing with not these - not this type of application, it was actually a section 496 application where it was alleged that claims had been raised subsequent to the ballot order that weren't in existence at the time of the ballot order. But certainly it's Full Bench authority for the fact that you don't have to have a full set of claims at the time of the ballot order to be seen, in our argument, to be genuinely trying to reach agreement, to actually get a valid ballot order. In respect of any allegation that the union was taking a hard line approach or the like, again in the O'Connor case, Marshall Js decision, he was dealing with a situation where what he described as extraordinary wage cuts and of the terms and conditions and that they are of surprisingly large proportions.

PN984

Despite that, his Honour held that that did not mean that an employer in that matter was not genuinely trying to reach agreement. Now, we submit that it's certainly not put that our claims meet those words that Marshall J said, but even if they did, that does not result in the union held to be not trying to reach an agreement. In respect of this issue regarding the business case, I understand
- again, the O'Connor case dealt with this issue and it dealt with it at paragraph 40 where his Honour sets out what Mr Hinckley submitted and that was that the lock-out was invalid because the industrial action is not protected and the basis of that was that Mr Hinckley contended that in seeking wage cuts without being prepared to disclose details about its profits, O'Connor was not being genuine in its discussions. In response to that argument, Marshall J held at paragraph 43:

PN985

Although it may assist the resolution of the dispute between it and the union if O'Connor showed its profitability or lack thereof to the union, it does not necessarily follow that it has not genuinely tried to negotiate with the union.

PN986

I understand that the difference between - that it will be alleged in this case and that case is that O'Connor didn't agree to provide its profits, but it certainly was an issue that they gave for these severe wage cuts and to the terms and conditions, and we say it's very - it's quite parallel to this situation here. I will reiterate that there would be no incentive for a union to undertake to do anything in any negotiations if it was held against them if they failed to do one of those undertakings. I won't deal - it's not alleged, as far as I understand it, that there is any seeking of prohibited content in this matter. I'll deal with that if it's raised again.

PN987

MR MCDONALD: Are we being invited to?

PN988

MR BORENSTEIN: I hope not. I'll take that if arisen, but I do set out there anyway at paragraph 51 of my submissions transcript from the appeal in your Honour's decision in the Tyco matter. Which certainly - where a party isn't intentionally seeking prohibited content, but mistakenly does, from the transcript there's a clear indication that they see that it would be unfair to hold that against an innocent party, an innocent union person who unintentionally seeks prohibited content. If I could take your Honour - on that basis, we say that the authorities are clear that in respect of the issues of business case and the like, that that doesn't mean the union is not genuinely trying to reach agreement and we say that clearly on the evidence the union has spent significant time negotiating with Siemens, have put forward its claims, Siemens haven't agreed to those claims, and we submit that's clearly sufficient for satisfying your Honour that the union has genuinely tried to reach agreement.

PN989

I think it was Munro J, and I haven't got the decision, but in the Campaign 2000 case, we're dealing with a situation where the union had sought to take industrial action, the AMWU had sought to take industrial action against numerous employers and in deciding where they genuinely tried to reach or agreement or not, he thought that one to two meetings with an employer would suffice to be held to be genuinely trying to reach agreement, although I don't have that decision here. We say the union has gone far in excess of that, in holding six meetings with Siemens. I'll now turn to pattern bargaining. I assume that's still being pressed?

PN990

MR MCDONALD: I thought it had been conceded in the evidence.

PN991

MR BORENSTEIN: Thank you. In this matter, we say that to establish pattern bargaining, it must be shown that the person is a negotiating party to two or more proposed collective agreements. Now, a negotiating party is defined as a person
- sorry, you're a negotiating party if you filed a bargaining period against an employer and we say there's no evidence of two or more bargaining periods in this matter. The only bargaining period your Honour has in front of you is the bargaining period on Siemens and therefore CEPU is not a negotiating party. Or, on the evidence before your Honour, it hasn't been established that the CEPU is a negotiating party for two or more proposed collective agreements. We also submit that the - your Honour cannot accept that there actually has been a course of conduct involving seeking common wages and conditions of employment for two or more of those proposed collective agreements.

PN992

My friend has failed to identify which two or more bargaining periods he is referring to, and therefore the course of conduct that he has to relate to those two bargaining periods cannot be established, and it certainly has been put to any
- there's no evidence on his side, and it hasn't been put to my witness, that he has conducted any course of conduct in respect of another bargaining period. In respect of the course of conduct extending beyond a single business, we submit that the conduct has not extended beyond a single business. There is no evidence of any meetings that the ETU has had with the employees of more than one company, more than one employer, who were involved in these unknown bargaining periods. There's no evidence of any joint communications in respect of these bargaining periods, of any endorsement of claims that just seek the same type of results.

PN993

The evidence is that Mr Montebello had meetings with the actual Siemens employees, they endorsed the claims to be specifically put on Siemens, only the Siemens delegates attended these negotiations and since then, there's no evidence of these negotiations being referred to other employers. The course of conduct has clearly been only within Siemens. So we therefore say that the definition of pattern bargaining has not been made out and therefore there's no need to go to the subsection (3) which provides for an exception where pattern bargaining is acceptable, where you satisfy that criteria. But in any event, we submit that we do satisfy that criteria and I will deal with that in reply if those issues - what issues are taken up with respect to that criteria.

PN994

THE DEPUTY PRESIDENT: Thanks, Mr Borenstein.

PN995

MR BORENSTEIN: Thank you, your Honour.

PN996

THE DEPUTY PRESIDENT: Mr McDonald?

PN997

MR MCDONALD: Thank you. Section 461 directs attention to bona fides of the applicant union during the negotiations. That is, we submit that if you're satisfied that on the evidence before you the union, which bears the evidentiary onus, has failed to establish that during the course of the negotiations about which you've heard evidence, it was genuinely trying to reach agreement, then it's failed to satisfy what is effectively a jurisdictional finding of fact, a jurisdictional hurdle which is a prerequisite to the making of an order. There are two substantive points which emerge from the evidence, having heard it, cross-examination and the like, which we say strongly support the conclusion that the union has not been genuinely trying to reach an agreement.

PN998

The first of those is that the clear evidence is that Mr Montebello in meetings both with SBT representatives and the IAC representatives, has given clear commitments to take certain steps, and I'll come to the detail of those in due course, and has then failed to follow through on that agreed course of action. In both with SBT and IAC, what is very important is we have, at the penultimate meeting we have an agreement to follow through on certain steps and then by the time of the final meeting, the union walks away, Mr Montebello walks away from that agreement. That, we submit, leads very strongly to the inference to be drawn or a finding of fact to be drawn that at some point in time the union has changed course for its own devices.

PN999

The second issue which we say is related to the first is that the union, as evidence of lack of good faith, has acted capriciously during the course of the negotiations. That is, it has changed its position during the course of negotiations without any apparent valid reason for having to do so, and the inference to be drawn is that that is evidence, that change of position, whimsical, capricious behaviour on its part, is consistent with it not acting genuinely. Now, as to the first matter, that is, the agreement of Mr Montebello that he would take certain steps and then he hasn't followed through on them, it's clear from the evidence that a significant issue in these negotiations has been the issue of award incorporation. That is, the fact that both of the proposed agreements put forward, one by SBT and the other by IAC, adopted the approach of incorporating into the agreement those provisions of the award which SBT and IAC considered relevant to their operations.

PN1000

We submit that it's clear on the evidence that in respect of SBT and IAC, that a clear commitment was given by Mr Montebello that he would undertake a review of the proposed certified agreements put forward by the companies, check those agreements against the award and come back to the company with additional award provisions, any additional award provisions, which he believed should be incorporated into the agreement. We say the simple position is that it's got nothing to do with the question of whether or not, you know, that approach, incorporation is the right approach or whether or not the correct approach was annexing the entire award to the agreement, we submit the simple point is the evidence compels the conclusion that Mr Montebello agreed to take these steps. We submit that that agreement, both in respect of SBT and IAC is recorded in the minutes of the meetings.

PN1001

In respect of SBT, it's to be found at exhibit KP3, page 9 in the middle of the page:

PN1002

MM advised what he would do was grab a copy of the agreement -

PN1003

Which I suggested to him should be read as "award":

PN1004

- with the prohibited content taken out as there may very well be disagreement in only a few areas, such as interstate work.

PN1005

So that was the meeting on 26 July. In relation to IAC, the position is recorded in exhibit TH4 to Mr Handakas's - I beg your pardon, TH3 to Mr Handakas's - I'll get there eventually, your Honour. Exhibit TH2 to Mr Handakas's statement, at page 4, the final entry:

PN1006

MM would go through the document, the award, in detail to check out - check what else they want in and also mentioned that as we were renegotiating, they may not necessarily maintain the old conditions, but would seek to change some of them.

PN1007

So that's a clear commitment that he's given to undertake that course of action, and the evidence is clear that he didn't do so, which we submit begs the question, well, why is it that that hasn't occurred? Why is it when a clear commitment is given during the course of serious negotiations, to take a course of action, that there's a change. And not only was there a change in terms of not following through on this agreed position, there was this dramatic U-turn by the union that Mr Montebello's position then becomes, as evidenced by the minutes of the meeting with IAC on 1 September, "I've got - there's a document. It's the award, it's stripped back and this is what we want as the annexure to the agreement." So that's the first issue, review of the award.

PN1008

Secondly, we have from the minutes of the meeting with IAC on 4 August, which is exhibit TH3, we have a series of agreements from Mr Montebello, including the agreement to provide documentation to the company in relation to inclement weather, none of which was followed through on. So that, we submit, that evidence is all quite inconsistent with a finding that the union has been negotiating genuinely. Another important point on this question of capricious behaviour, your Honour, emerges from the meeting with SBT on 26 July. It's recorded at page 8 of those minutes of 26 July, exhibit KP3 and the extract is:

PN1009

Kathy Prince asked what it was they -

PN1010

the union:

PN1011

- was seeking that wasn't already in the SBT agreement. MM responded that he wanted vehicle industry appendices.

PN1012

Now, we submit that it's quite extraordinary that in circumstances where the union hangs its hat on the existence of its log of claims as being the framework for negotiations, that when Mr Montebello is asked to identify what's the deficiency in the agreement which is put up by SBT, he identifies a matter, that is vehicle industry appendices, which is not dealt with in terms in the log of claims, that at no stage has Mr Montebello on behalf of the ETU articulated what it is, what's the claim in respect of vehicle industry allowance, that the union seeks. It's all consistent, we submit, with the union going through the motions, sitting on its hands, trying to lay the foundations, to use Mr Borenstein's example of Munro Js decision, so they can come to the Commission and say, "Oh well, we've had more than the two meetings Munro J said you've got to have. We've had three meetings."

PN1013

Yes, but it's not that simple. There has to be a qualitative analysis. You have to look at what's going on in these meetings. As well as the vehicle industry issue, we've got Mr Montebello at the meeting which follows on from 26 July with SBT, we've got Mr Montebello saying, you know, well, we can go through the agreement now, but it might take - it's not a case of ticking the box, it's a case of you know, it might take hours, months, years. The strategy is quite clear, that what this is all about is for them to be able to say, yes, we attended a meeting, yes, we sat down on the other side of the table, but qualitatively, the analysis points to the conclusion that what this has all been about is obfuscation. At no stage has the union sought to genuinely engage in a proper negotiating process, and the reason for that, we submit, is quite clear.

PN1014

In relation to the vehicle industry appendices, for the first time today, we say, it's articulated as being a disability allowance, which really seems quite farfetched, but anyway, that's the position of the union today. So capricious behaviour, commitments not followed through on, and all of this, your Honour, one looks at this change of position, one looks in terms of the union failing to follow through on agreed positions, and we submit that - we don't submit that this is crucial to a finding in our favour, but we do invite you to draw the inference which we say is a very powerful inference in this case, that when the wheels are well and truly falling off, by the time one gets to the final meetings which take place with SBT and IAC, the SBT on 15 August, IAC on 1 September, that this is coincident with the what we've heard described in these proceedings as the generic agreement.

PN1015

Indeed, your Honour, very significant that at the meeting of 1 September on the IAC, Mr Montebello having previously given the clear commitment recorded in the meetings of the meeting with IAC to undertake a review of the agreement as against the award, on 1 September, what does Mr Montebello do? He attends that meeting and he has in his hand a document which he has today admitted is appendix K to the generic agreement. That is, the award stripped of prohibited content. Now, you did raise before the luncheon adjournment the issue of section 461 and how that inter-relates with section 421, particularly section 421(3). We don't, at our end of the bar table, cavil with the proposition that in this case, at the end of the day, the key issue for you to determine is the factual question raised by section 461, of was the union genuinely trying to reach agreement.

PN1016

For our part, we don't need to get into issues such as those raised by Mr Borenstein about, you know, where's our evidence of other negotiating parties and the like, in terms of establishing the existence of pattern bargaining. We don't need to go down that track. But how we do put our case is that you have, in appendix K, very clear evidence, that is, the union presenting appendix K at the meeting on 1 September, this being part of the generic agreement. You have very strong evidence to support the inference that the reason why there's this abandonment on the part of the union in not proceeding with matters that they have agreed to previously, and sudden change of position in terms of they would go for - they said that they would report back on various forms of wordings, the form of the right of entry provision, they said they would provide this document on inclement weather, none of that happens.

PN1017

All of a sudden, on 1 September, it's well, you know, let's get something out of this meeting. Let's talk about our log of claims, bang, bang, bang, not agreed, not agreed, not agreed. Why is it that we have that position? We submit that the reason is, the very strong inference to be drawn on the evidence, is that by this point in time, once we get into September, the union is in the position where its generic agreement, if not finalised, is close to finalised and that that's an explanation for its lack of good faith in negotiations. But at the end of the day, we do submit, your Honour, that you don't need to go so far as to make that finding.

PN1018

You could very well make a finding that for the purposes of section 461(1) of the Act, insofar as it imposes an obligation on an application for a protected action ballot order to establish that it's been genuinely trying to reach agreement, that evidence (1) of the union having agreed to take certain steps and then, without any good reason, having not followed through on that agreed course of action, and (2) evidence of a union acting capriciously in terms of putting up demands such as the vehicle industry appendices as being a key issue in the negotiations in circumstances where that claim has never been articulated, that those matters are quite inconsistent with genuine bargaining. If I just deal with one matter that arises directly out of Mr Borenstein's written submission, and that's in relation to the Wesfarmers case, we make two points in relation to Wesfarmers.

PN1019

This is the judgment of French J. This case, of course, was concerned with the construction of section 170ML of the Workplace Relations Act 1996, which was the provision in respect of initiation of - not initiation of a bargaining period, but the next step. That is, the taking of a ballot for protected action. It's concerned with a different statutory provision, section 170ML(2)(e), I think is the particular provision which the section was concerned with. French Js observations at, I think, paragraph 58 that Mr Borenstein took you to need to be understood in the light of that. However, can I just make this submission, to make our position clear? We're not submitting, because we don't need to - well, partly because we don't need to - that in every case, section 461(1)(a) requires an applicant for a protected action ballot to, at the time of coming to the Commission, be able to establish that during the course of negotiations it had placed on the table an agreement.

PN1020

We don't submit that. Indeed, I note that such a submission would appear to be inconsistent with the Full Bench decision in Heinemann, having quickly looked at that decision.

PN1021

THE DEPUTY PRESIDENT: I think I made a similar comment in the Tyco decision, so the Full Bench must have been right in Heinemann.

PN1022

MR MCDONALD: Great minds, no doubt, think alike. What is significant, your Honour, in this case, and ultimately it boils down to a question of fact and it always has to be looked at in the particular circumstance of each case, what doesn't pass the smell test, if I can put it that way, in this case is that here we have running in parallel negotiations with Siemens which from the union's point are underpinned by their very pithy, two-page log of claims which, from a reading of the minutes of the meetings which had taken place, have warranted very little attention at all in the course of those negotiations until, we submit, the union decides, right, let's press the button, let's go here and, you know, Mr Montebello walks in and says, okay, right, we're going to get something out of this meeting, let's have a talk about our claims.

PN1023

It is all done, we would say, in a very perfunctory manner and the next thing you know, an application is filed. That's one stream. On the other stream, we have these negotiations going on at the industry level for the generic agreement and Mr Montebello says, look, this only arises when the company asked what's going on, but the fact of the matter is we keep getting these regular reports from the union of, you know, we're two issues away, we're one issue away, we've got a very comprehensive agreement being negotiated, so this is a case where the union does have an agreement and that stands - we would ask, again in terms of the inferences to be drawn in this case, and in terms of the timing and when things fall apart in early September, coincidentally when that agreement has reached the point where it's about to be ticked off or has been ticked off by DEWR, this is a case where the union does have this agreement, but it refuses - of course it says for reasons of confidentiality, not to table.

PN1024

Now, we make the submission that the inference is overwhelming, we say, that in this case the union's true claims as evidenced by the tabling of appendix K to that agreement on 1 September in the meeting with IAC, the union's true demands are to be found in that generic agreement, not in the two-page log of claims. You can make that inference, we say, on the evidence, but if you don't, you should nevertheless find that there's been no genuine bargaining by the union in respect of that agreement for those reasons that I've already alluded to. Those are the submissions.

PN1025

THE DEPUTY PRESIDENT: Thanks, Mr McDonald. Mr Borenstein?

PN1026

MR BORENSTEIN: Thank you, your Honour. I firstly might say that I accept this, that my friend is not relying on section 461(1)(c) to prevent the Commission form making such an application which deals with pattern bargaining as defined by the actual Act. I just seek that confirmation, it might save some time. It was certainly raised at the last proceeding that he was relying on that provision.

PN1027

MR MCDONALD: We rely on the fact that a demand has been made on us which is identical to appendix K of the generic agreement. That's a submission I put.

PN1028

THE DEPUTY PRESIDENT: Thank you.

PN1029

MR BORENSTEIN: I just sought clarification from my friend. I understand you can make a submission that the demand, his alleged demand for an industry agreement is also relevant to paragraphs (a) and (b) of section 461, but there is actual express provision dealing with pattern bargaining and as I understand it, unless I'm corrected, he's not relying on that paragraph (c) but rather on section 461(1)(a) and (b).

PN1030

MR MCDONALD: Just to be clear, the onus is on Mr Borenstein to convince
- to establish before you that the union is not engaged in pattern bargaining. Mr Montebello has conceded in evidence that the demand tabled on 1 September in a meeting with IAC was identical to appendix K of what is referred to as the generic agreement. So - - -

PN1031

THE DEPUTY PRESIDENT: Mr Borenstein, it seems to me that it's fairly clear that the opposition to the order being granted is based upon the requirements of 461(1)(a), (b) and (c) not being met.

PN1032

MR BORENSTEIN: Yes, okay, your Honour. I'll just confirm that we submit that section 461(c) does not apply because of section 421 which defines what pattern bargaining is for the purposes of 461(c) and therefore as those - there's no evidence before you of any course of conduct or of any bargaining periods at two or more - - -

PN1033

THE DEPUTY PRESIDENT: Yes. Well, nobody has assisted me too much in understanding what those two provisions mean read together, but I don't think much turns upon it from the point of view what's before me at the moment.

PN1034

MR BORENSTEIN: Yes, your Honour. We would say your Honour did deal with that clause in the Tyco matter and in that situation there was evidence that there was a number of bargaining periods, however, there was no evidence of any course of conduct, we say, that the failure for there to be such a course of conduct means that the definition doesn't apply. In respect of - we firstly say that Mr McDonald's attempts are clearly to scour through all the negotiations, to scour through them all, and they pick out a couple of points where maybe there is a loose end. But your Honour has to take into account the fact that there are - there have been six lengthy negotiations and with numerous notes taken regarding the negotiations backwards and forwards, and Mr McDonald's attempt to pick out a couple of loose ends and say that in some way infects the whole negotiations, we say places the bar that's expected of industrial participants at a level where it's never been before and is much higher than we say can be expected under this Act.

PN1035

It is a submission that we say would result in negotiation meetings not being conducted in a way where the parties are freely open in speaking about things and undertaking to do things because these such negotiations would be - the participants would have hanging over them the risk that if they don't do one of the things they said, well they won't be able to take any protected action down the track if they need to. We say 90 per cent of the negotiations that went on were proper negotiations. There were no loose ends in respect to those negotiations and the parties still couldn't reach agreement, yet the evidence of the employer is that they went through the table of the issues in dispute, they knew what the claims were and they said they are still in dispute.

PN1036

Whether or not Mr Montebello comes back at the next meeting with a report about the differences between the award and the EBA isn't going to change the fact that those issues are in dispute and the employer knows what those issues are and was not agreeing to them. The attempt to use the fact that the inclement weather clause was not brought back to the attention of the company, to try and say that all of the negotiations are therefore not genuine, we submit just doesn't take. It's clear from the evidence that the inclement weather was a minor issue and there was no understanding - - -

PN1037

THE DEPUTY PRESIDENT: I just need to pick you up on one thing you just said there, Mr Borenstein. I don't think there was any attempt to say that all of the negotiations were not genuine. I don't think that that's a circumstance that the Commission has to consider in any event.

PN1038

MR BORENSTEIN: Yes.

PN1039

THE DEPUTY PRESIDENT: I mean, the Act talks about whether or not the applicant, in this case the union, is genuinely trying to reach agreement.

PN1040

MR BORENSTEIN: Yes. Well, to say it means the applicant is not genuinely trying to reach agreement because of a couple of loose ends which in no way bar the reaching of agreement or have - if you look at the whole of negotiations, having an effect prevented the agreement being reached, we say to use these couple of loose ends, to say that the union is not genuinely trying to reach an agreement, we say raises the bar to a level that is higher than has ever been reached before, and there is no authority for such a thing. This requirement has been around for a significant amount of time. I presented the Commission with authorities that go against the propositions being put by Mr McDonald. He can't present any authorities that are akin or close to the finding that he's seeking the Commission to determine.

PN1041

Yet he says, well, it's just on the facts and the Commission should find so. We say, well, there are principles dealing with genuinely trying to reach an agreement and that is the union has seriously considered the proposals, and there can be no doubt that the union has, and the fact that on a couple of matters it's alleged that the union hasn't got back at the time that the employer seeks doesn't mean the union hasn't seriously considered the proposals put by the employer. We say it was more than open for the union to come back and say - we say the evidence is that Mr Montebello went away, had a look at the award and the agreement, found that there were some inconsistencies and that it was difficult to understand because it was an agreement drafted by the employer and as your Honour would know, the award is a huge document, and thought it better to go back and do it at a meeting.

PN1042

So the fact that Mr Montebello changed his alleged agreement to say, well, I'm not going to do it before the meeting, we'll do it at the meeting, to somehow say that that means the union is not genuinely trying to reach an agreement we say cannot follow. In respect of the argument regarding the production of the award without excluding the prohibited content, Mr McDonald is now trying to use this as a basis to say the union is somehow pattern bargaining and that we're not genuinely trying to reach an agreement. The union deals with this award a lot. This is the actual award with the prohibited content taken out. The fact that we use it for two different agreements has no application to this matter. It's the award that has underpinned this employer's agreement and has actually been incorporated into the agreement for - in the previous agreement for three years and all we've done is remove the prohibited content.

PN1043

The fact that we've done that in another situation as well is hardly to be used against the unions, to say that they're actually pattern bargaining, especially when the award is something that already applies by way of the common rule to these employees. So how can producing a document that already applies to the employees, minus prohibited content, be considered to be pattern bargaining? In respect of the statements to say that this generic agreement kept popping up in negotiations, well it was accepted by Ms Prince for the respondent that it kept cropping up at the instigation of Siemens and not the union in the negotiations from July onwards. We say this is just a clear setup by Siemens who want to avoid this industrial action. They knew the industry negotiations were going on with Downer Engineering and they thought, well, we can protect ourselves by trying to keep raising this document in these negotiations.

PN1044

They take down the minutes to aid their cause and they have raised it here at this hearing and we say that there's no evidence of the union ever claiming that these documents - in the negotiations, and therefore these are not claims and they have not been raised in the agreement and the union is genuinely trying to reach agreement. Unless your Honour has any questions?

PN1045

THE DEPUTY PRESIDENT: No, that's all. Thanks, Mr Borenstein. I'm going to take a few minutes, hopefully not too much longer than that, to consider what's been put to me and then return, give you a determination on this matter. I'll try not to delay people too long, in the words of a person at a famous execution.

<SHORT ADJOURNMENT [4.46PM]
<RESUMED [4.59PM]

PN1046

THE DEPUTY PRESIDENT: I may not be as thorough as I would otherwise be if it wasn't for the lateness of the hour on a Friday afternoon, and circumstances generally, but I'll do my best. This is an application pursuant to section 451(1) of the Act by the CEPU seeking an order for a secret ballot. The respondent employer opposes the granting of the order. The grounds upon which the granting of the order is opposed are in respect of subsections 461(1)(a), (b) and (c) of the Act I intend here, in providing a determination on this application, to go to the evidence only to the bare extent necessary to determine satisfaction or otherwise, as to whether the application can succeed. Mr Montebello gave evidence that he did undertake to do certain things in respect of particular clauses in the proposed agreement.

PN1047

Mr Montebello generally confirmed that those things he had undertaken to do were reflected as action notes in the minutes of meetings in evidence as TH3 of exhibit Siemens6, and in KP3 of exhibit Siemens5. Included is the undertaking that Mr Montebello would review the award to determine which award clauses should or should not be included in the proposed agreement. Mr Montebello confirmed that he did not do these things on the basis that it would have served little point, in his view, in that there would have been no agreement from the respondent in any event. The Act requires at section 461(1) that the applicant for a ballot order satisfy the Commission that it has genuinely tried and is genuinely trying to reach agreement. The undertakings referred to were made by Mr Montebello and not by the respondent.

PN1048

Regardless of any express or implied position of the respondent in respect of the union's claim at the time the undertakings were made, the company was not in a position to give any response for or against any final agreement until Mr Montebello had fulfilled the undertakings he'd made. This is so because the respondent would not have been in a position to know what the agreement it was that it was either accepting or rejecting. In any event, while there may be evidence about the respondent's position on particular claims, there is no evidence that the company rejected any position the union may have put in meeting its undertakings. The union cannot properly claim to have been genuinely trying to reach agreement in circumstances where it did not meet its own undertakings in providing a response to the respondent as matters as significant as the form of agreement sought by the union.

PN1049

It needs to be stressed that the undertakings referred to were undertakings made by the union. It is not suggested that the union was under any obligation to make the undertakings, but having done so, it was in my view under an obligation to meet them. Unless the union clearly puts the respondent on notice about what it wants, it cannot have been genuinely trying to reach agreement. It seems to me that this matter is readily distinguishable from the issues in Heinemann Electric Pty Ltd v CEPU which was handed up to me and is Print 974265. In the matter before me, the union undertook to respond to certain matters in respect of proposed agreement provisions; it failed to do so. On that basis it remains unclear what the union is seeking in an agreement. Absent such clarity, it cannot be said that the agreement is genuinely being sought.

PN1050

Neither am I persuaded that there is anything relevant in the other authorities relied upon by the union that should bring me to a different conclusion that the one I have reached. I dismiss the application on the basis that I am not satisfied that the requirements of subsection 461(1)(a) or (b) of the Act are met. Departing slightly from what I said at the outset, I think it's worthwhile saying one thing finally. That is that whilst it is strictly unnecessary for me to make any comment about it at all, I will say that I am not persuaded on the evidence that the union has engaged or is engaging in pattern bargaining, such as to prevent the requirement in section 461(1)(c) being met.

PN1051

Unless there is anything further, I intend to adjourn. Thank you.

<ADJOURNED INDEFINITELY [5.05PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #SIEMENS2 CORRESPONDENCE PN99
MICHAEL JOHN MONTEBELLO, SWORN PN104
EXAMINATION-IN-CHIEF BY MR BORENSTEIN PN104
EXHIBIT #ETU1 WITNESS STATEMENT OF MICHAEL JOHN MONTEBELLO PN112
EXHIBIT #ETU2 SECOND WITNESS STATEMENT OF MICHAEL JOHN MONTEBELLO PN120
CROSS-EXAMINATION BY MR MCDONALD PN122
EXHIBIT #SIEMENS3 DRAFT ETU CLASSIFICATION STRUCTURE DOCUMENT PN183
EXHIBIT #SIEMENS4 DOCUMENT WITH TITLE PAGE DOWNER ELECTRICAL PTY LTD ETU ENTERPRISE AGREEMENT 2006-2010 AND STANDARD DEED DOCUMENT 2006-2010 PN252
RE-EXAMINATION BY MR BORENSTEIN PN503
THE WITNESS WITHDREW PN585
CATHY MAREE PRINCE, AFFIRMED PN591
EXAMINATION-IN-CHIEF BY MR MCDONALD PN592
EXHIBIT #SIEMENS 5 - STATEMENT OF CATHY MAREE PRINCE PN600
CROSS-EXAMINATION BY MR BORENSTEIN PN602
THE WITNESS WITHDREW PN769
CATHY MAREE PRINCE, RECALLED PN791
CROSS-EXAMINATION BY MR BORENSTEIN, CONTINUING PN791
THE WITNESS WITHDREW PN846
ANTHONY DAVID HANDAKAS, AFFIRMED PN848
EXAMINATION-IN-CHIEF BY MR MCDONALD PN848
EXHIBIT #SIEMENS 6 - STATEMENT OF ANTHONY DAVID HANDAKAS PN855
CROSS-EXAMINATION BY MR BORENSTEIN PN858
THE WITNESS WITHDREW PN930