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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 16277-1
DEPUTY PRESIDENT IVES
BP2006/240
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
AND
HADEN ENGINEERING PTY LIMITED
s.451(1) - Application for order for protected action ballot to be held
(BP2006/240)
MELBOURNE
9.18AM, TUESDAY, 12 DECEMBER 2006
Continued from 1/12/2006
PN1
THE DEPUTY PRESIDENT: Yes. We appear to have a change to the appearances?
PN2
MR J COONEY: Your Honour, no change to the appearance, I appear for the CEPU, with me, MR G JACOBSEN.
PN3
MR R DALTON: Yes, I seek leave to appear for the company, and with me, MR A DOUGLAS.
PN4
THE DEPUTY PRESIDENT: Thank you. Any objection to leave?
PN5
MR COONEY: No, your Honour. No.
PN6
THE DEPUTY PRESIDENT: Leave is granted. Can I just ask at the outset, Mr Dalton, is the entire basis upon which you oppose this application the genuineness or otherwise of the bargaining?
PN7
MR DALTON: No, it's not, your Honour. Hopefully you have received a fax yesterday - - -
PN8
THE DEPUTY PRESIDENT: I have, but about two minutes ago. I opened it, it came through, so I haven't had an opportunity to look at any of that.
PN9
MR DALTON: Yes. That fax was sent to the union last night, I understand. Yes, shortly before 6 pm, and it confirms that there is a second point that is taken which is that the union has sought the inclusion of a right of entry provision in the certified agreement, and for that reason, because that's not permissible content, applying Kemp Engineering and those other cases, it goes to the genuineness as well.
PN10
THE DEPUTY PRESIDENT: Yes, okay. Thanks, Mr Dalton. I think we'll just go straight to witness evidence before I hear anything from you, Mr Cooney. Just to save time, any submissions, we'll save until - - -
PN11
MR COONEY: Yes, your Honour. We have two witnesses, Mr Gary Jacobsen and Mr Ian Davison.
PN12
THE DEPUTY PRESIDENT: Just on that last point, Mr Cooney, this is the fax I have just pulled off, it talks about prohibited content, and I don't want you to go into it now, but I am assuming you're in a position to answer that particular? Because if you're not, we're going to waste a lot of time.
PN13
MR COONEY: Well, your Honour, this has been made clear, and when Mr Jacobsen is in the witness box, the union doesn't seek any prohibited content, nor does it seek any deeds, nor does it seek any material which would contravene the National Building Code. I think the line that's been referred to is clause 14 of the agreement which says:
PN14
Right of entry will be in accordance with the Workplace Relations Act.
PN15
Now, if that's to be removed, that's to be removed. Further, as we have done with all companies that we have dealt with, we send an agreement to the OEA - - -
PN16
THE DEPUTY PRESIDENT: Okay. I don't want you to go into it now, as I said. I just wanted to know whether you were in a position to answer the allegation that you had pressed for the inclusion of prohibited content, and if you were not in a position to answer that allegation, then it seemed to me that we're going to waste a whole lot of time, but you say you are, so that's fine, we'll go straight to witness evidence.
PN17
MR COONEY: Yes. The other side has asked for Mr Davison to leave the room while Mr Jacobsen gives his evidence, so I'll ask Mr Davison to leave the room when Mr Jacobsen is in the stand.
PN18
THE DEPUTY PRESIDENT: Do you seek any order for witnesses to be excluded, Mr Cooney?
MR COONEY: No, your Honour.
<GARY PAUL JACOBSEN, AFFIRMED [9.23AM]
PN20
MR COONEY: Can I ask that Mr Jacobsen be given a copy of his statement, please?
THE DEPUTY PRESIDENT: Just before you go ahead - yes, go ahead, Mr Cooney.
<EXAMINATION-IN-CHIEF BY MR COONEY [9.24AM]
PN22
MR COONEY: Mr Jacobsen, you have been an employee of the union for how long?---Eight years.
PN23
In that time, what have been your duties?---I've done a number of EBAs with companies over the years, and health & safety issues and industrial disputes.
PN24
In what areas?---In the Latrobe Valley and in the eastern suburbs, which is now the southern area I do, still the Latrobe Valley and the Gippsland area.
PN25
You're also a member of the committee of management of the Victorian branch of the union?---Correct.
PN26
Could I just ask you, in relation to an issue on prohibited content, the union has done a number of agreements with an amount of companies. Is it the policy of the union that those agreements will not contain prohibited content, and is it a policy of the union that those agreements will comply with the National Building Code?
PN27
MR DALTON: I object to the question.
PN28
THE WITNESS: Correct.
PN29
MR DALTON: It's very leading and that is a point in contention.
PN30
THE DEPUTY PRESIDENT: Yes. It is a leading question, Mr Cooney.
PN31
MR COONEY: Yes, I accept that, your Honour, but I would say that this raises matters that - - -
PN32
THE DEPUTY PRESIDENT: Well, it doesn't entitle you to ask leading questions, whatever it raises, Mr Cooney.
PN33
MR COONEY: Mr Jacobsen, can I ask, what are the nature of those agreements when it comes to complying with the Workplace Relations Act?---Any prohibited content in the EBAs we do, when they - the final draft is done with both sides, anything that's prohibited is taken out.
**** GARY PAUL JACOBSEN XN MR COONEY
PN34
Could I take you to your witness statement - - -
PN35
THE DEPUTY PRESIDENT: Are you going to have Mr Jacobsen swear to the veracity of that statement?
PN36
MR COONEY: Yes. You've had an opportunity to read the statement?---Yes.
PN37
That you accept that everything there is true and in your own words?---Correct.
PN38
Thank you.
PN39
THE DEPUTY PRESIDENT: I assume you want to have it marked as an exhibit?
PN40
MR COONEY: Yes, sorry, your Honour. I tender that as a exhibit, and the attachments.
PN41
THE DEPUTY PRESIDENT: And the attachments, which I've just been handed. It is a bundle of documents, the first of which has appendix C at the top of it and the word, "Gippsland" written in handwriting. Is that the - - -
PN42
MR COONEY: Correct, your Honour.
PN43
THE DEPUTY PRESIDENT: Is that correct?
PN44
MR COONEY: Yes.
PN45
THE DEPUTY PRESIDENT: How many attachments are there, Mr Cooney?
PN46
MR COONEY: Your Honour, there would be 16, down to the letter S.
PN47
THE DEPUTY PRESIDENT: So attachments A through to S?
MR COONEY: Yes.
EXHIBIT #CEPU1 - STATEMENT OF G P JACOBSEN INCLUDING ATTACHMENTS A-S
PN49
MR COONEY: Mr Jacobsen, could I take you to paragraph 8 of your statement? You have conducted a number of meetings with employees of Haden in Gippsland?---Correct.
**** GARY PAUL JACOBSEN XN MR COONEY
PN50
You have reported back to those employees the conduct and the outcome of negotiations with Haden?---Correct. On a number of occasions.
PN51
Could I take you to clause 9 of your statement? You say there:
PN52
The CEPU sought rollover existing entitlements, excluding any that would constitute prohibited content.
PN53
?---Correct.
PN54
Thank you. Again - - -
PN55
THE DEPUTY PRESIDENT: What conversations, if any, did you have with the employer about that particular, Mr Jacobsen?---On the - a number of occasions when I've met Mr Jarvis, anything what shouldn't be in there we just crossed out. Bruce has pointed out a number of things with myself and even when he's came to the office with - to meet Justin, we've crossed things out of the agreement we've put together. On a number of occasions.
PN56
What sorts of things?---Things like the right of entry. That's been marked before, that that should be there. A number of things Justin's brought up with Bruce or Bruce has brought up which shouldn't be in the EBA, well, been there and it's just been crossed out, you're not allowed to have this and you're not allowed to have that. A lot of it has been with wording, so it's just been crossed out.
PN57
Thank you.
PN58
MR COONEY: If I could take you, again, to clause 9 of your statement? Now, this constituted the original claim in terms of hours of work and pay rates and the pay rates are to be found at annexure A to your statement, those being the pay rates for the Gippsland site generally. The next page, for Esso onshore, the next page, for Esso offshore and then the following page, power stations and a final page, Australian Paper Mill at Maryvale. Could I ask, how did you arrive at those pay rates?---The pay rates for Esso, I've done a number of agreements with Esso onshore and offshore and they have been the market - been a rate over the years, what tradesmen receive down there. That's the same with the paper mill and it's the same with the power industry. The eight years I've been going down there, there's been a number of EBAs. There's been a number of meetings with those employees from the paper mill and Esso, what the union attend, and so have the employers attended. I believe Mr Jarvis has attended a few of those meetings with Esso. I did recognise him one time I had a meeting there with all the employees. The AIG organised that, and Mr Jarvis would be fully aware of some of those pay rates, what's been going on over the last eight years, when he prices the work.
**** GARY PAUL JACOBSEN XN MR COONEY
PN59
All right. Could I take you in the attachments to attachment R? Are you at attachment R there in the attachments? It's a letter to Haden dated 27 November 2006?---What page, Justin?
PN60
It's the second-last page from the back?---Haden's Gippsland Collective Agreement Number 12.
PN61
Yes. And then the following page is attachment S?---Right.
PN62
Could I ask you, would that constitute the basis of the outstanding claims that the union and the membership has with Haden's, as it now stands?---That's what we're after. That's the market value rate for those places.
PN63
It's now in the form of one wage rate at the tail of the agreement and a series of allowances?---That's correct. The reason why we did that like that was because Mr Jarvis wanted the EBA done and the appendices put in for those other four sites.
PN64
All right. Could I take you to page 4 of your statement? You state there that a bargaining period notice was served on Haden on 29 September and took effect from around 5 October, being the - - - ?---Correct.
PN65
If I could take you to attachment H of the annexures?---Sorry, Justin?
PN66
Attachment H of the annexures?---2 October.
PN67
Now, that letter - - -
PN68
THE DEPUTY PRESIDENT: Just hold your horses a minute, Mr Cooney, while I find that?
PN69
MR COONEY: Sorry, your Honour.
PN70
THE DEPUTY PRESIDENT: Yes, I have it. Thank you.
PN71
MR COONEY: That letter requests a meeting to be held at 3 pm on Friday, 6 October 2006 subsequent to the serving of a bargaining period. Did that meeting occur?---Yes.
**** GARY PAUL JACOBSEN XN MR COONEY
PN72
If I could take you to - - - ?---Just on that, Justin, that meeting did occur with Haden's, but I had a meeting with the Haden's employers after that meeting.
PN73
Thank you. If I can take you to attachment K of your annexure? It's a letter from Haden dated 26 October. That letter of 26 October, in it is a letter from Haden to the union and it refers to a meeting that was held that day in the union offices between yourself, me and Mr Jarvis?---Correct.
PN74
It also contains a table of the relative positions of the two parties?---Correct.
PN75
That would be an accurate description of where the parties are at?---Correct.
PN76
If I could take you to the CEPU claim as to the working week - - -
PN77
THE DEPUTY PRESIDENT: Where is that, Mr Cooney?
PN78
MR COONEY: Sorry, it's in the table. There's a heading - - -
PN79
THE DEPUTY PRESIDENT: Yes, yes.
PN80
MR COONEY: Yes, working week, and it says, "CEPU 36 hours per week". Mr Jacobsen, if I could ask, was that 36 hour a week to apply across the board to all employees regardless of what site they were working on?---No. It was for - to apply where the market rates were in those four other sites.
PN81
Could I take you to attachment L, the annexure? It's a letter from Haden to yourself dated 30 October 2006. Mr Jarvis in that letter states that he will be on leave for five days. If I could ask you to turn over the page, page 2, Mr Jarvis in the second paragraph states that he does not have the delegations of authority from the company to agree to such terms, and as such:
PN82
- I will over the coming days prepare an analysis of these claims.
PN83
?---Correct.
PN84
If I could then take you to annexure M of your annexures? At the second line there, it refers to the meeting of 26 October where the union provided the company with a draft collective agreement. Underneath that it then says there was sought a 36 hour week, increases by 16.3 per cent and 13 per cent, and trades to change to comparable rates. Immediately below that, there are three more dot points marked 1, 2 and 3. At the last - under point 1 it then states:
**** GARY PAUL JACOBSEN XN MR COONEY
PN85
The union stated they were to accept a phasing-in of the 36 hour week over the life of the agreement.
PN86
?---That's correct.
PN87
Then at point 2 it states and requests that Haden examine the staggering-in of the proposed increases over the life of the agreement?---That's correct.
PN88
Further, that there be comparable trade rates between the employees at Haden and other tradespersons working at those various sites?---Correct.
PN89
Could I then take you to attachment N to your annexure? It's a letter from Haden under the signature of Peter Silbursure, the national human resources manager to the divisional secretary of the plumbing division. At the third paragraph down it states:
PN90
Haden would require 21 days to undertake the analysis of the claim from the union.
PN91
Is that correct?---Correct.
PN92
Mr Jacobsen, can I ask you, you attended a meeting Friday just gone at Haden's Notting Hill site?---That's correct.
PN93
Where you went through the costings of the claim?---Correct.
PN94
That claim was again based on the claim put on 1 November 2006 which included increases by 16.3 per cent plus 13 per cent over three years?---Correct.
PN95
Trade relative rates and a 36 hour week across the board?---Correct.
PN96
So it's a 36 hour week across the board?---Yes.
PN97
Thank you. Could I just take you to page 6 of your statement? You state there that on 28 November 2006, you contacted the union delegate?---Correct.
PN98
At paragraph 30 you state that the delegate informed - explained the options to the delegate and that the delegate informed you that the employees sought a secret ballot, at point 30 of your statement?---Correct.
**** GARY PAUL JACOBSEN XN MR COONEY
PN99
Finally, at point 32 of your statement, you say that the union would be seeking an attendance ballot as it is a more efficient and expeditious way?---Correct.
PN100
That would be at Gippsland Trades Hall or another suitable site?---Correct.
PN101
All right. Thank you.
THE DEPUTY PRESIDENT: Mr Dalton?
<CROSS-EXAMINATION BY MR DALTON [9.45AM]
PN103
MR DALTON: Mr Jacobsen, you've been the main CEPU plumbers division point of contact as far as Haden is concerned in these negotiations?---For Gippsland, yes.
PN104
Yes. Your responsibility includes organising members of the plumbers division who are employed by Haden down at the Gippsland business?---Correct.
PN105
The negotiations that you describe in your statement relate to negotiations for terms and conditions that would apply to those persons
down at Gippsland?
---Correct.
PN106
Now, when you started these negotiations, am I right in saying that there was a previous enterprise agreement that applied to both the Gippsland employees and the Melbourne-based employees?---That - that is correct. The reason why we were after - - -
PN107
No, I didn't ask you for the reasons. You knew that there was an agreement that previously - well, that had expired, that applied to both Melbourne and Gippsland?---Correct.
PN108
That's correct? And - - - ?---Which was Tyco.
PN109
Yes, and that's an agreement which the CEPU plumbers division had negotiated and was a party to?---Correct.
PN110
So what you were trying to do was to achieve an enterprise bargaining outcome to replace that agreement in respect of Gippsland employees only?---No, that's not quite correct. Mr Jarvis wanted a separate EBA for down at Gippsland when we were negotiating.
**** GARY PAUL JACOBSEN XXN MR DALTON
PN111
All right, then you concentrated on Gippsland?---Correct.
PN112
Yes. You're aware that down at Gippsland there are about 16 employees?
---Correct.
PN113
Most of them are basic air conditioning technician level?---They're tradesmen, they're refrigeration mechanics, done a four-year apprenticeship.
PN114
Am I right in saying they're paid an hourly rate of $24 at present?---Roughly $24 an hour.
PN115
Yes. 90 per cent of the work they do down there is at four sites; Esso onshore, Esso offshore, APM Maryvale and if I can describe collectively, the power industry sites - - - ?---That's correct.
PN116
At those sites, there are significantly more generous terms and conditions as compared with the current Haden terms and conditions.
For example, less ordinary hours, such as 36 hours at all sites except Esso offshore which has 35?
---That's not quite - most of what you said is true. Esso onshore, Esso offshore are 35 hours a week. The paper mill is 35 hours
a week and we were seeking a 36 hour week.
PN117
They also have higher rates of pay and higher allowances and more allowances?
---They have higher allowances and that's been going on for years, and like I said, Haden's have been in those places for a number
of years. They just haven't been in there for three years, and as I said earlier, Mr Jarvis has attended a number of meetings, would
have been with the AIG, where they've discussed pay rises and allowances in those places, and with the paper mill and with - and
with the power industry, so everyone would be on a market - we're just after the market value rate the same as everyone else, roughly.
PN118
Now, you're aware that the Haden employees currently receive a site allowance when they work at APM Maryvale?---The two of them do receive a site money there. So does everyone else receive a site money there too.
PN119
That's $2.36 per hour, is that correct?---I'm not too sure what amount it is but it would probably be roughly correct. It'd be about $2 something, or close enough to $3 an hour, everyone receives at the paper mill.
**** GARY PAUL JACOBSEN XXN MR DALTON
PN120
There's a $2 an hour allowance that Haden pays its employees when they work offshore at Esso's facilities?---They - Haden's might pay that. I'm not sure. They would pay that, I'd say. I think other people are on a lot more than that.
PN121
Okay, but apart from those sites, do you understand that Haden doesn't pay a site allowance?---Anywhere else.
PN122
No?---Yes, that's correct.
PN123
You started negotiations for a new agreement in about August 2005?---That would be - around that area. It's been going for over 12 months.
PN124
You had a few meetings after August 2005, in the second half of 2005?---I think I've been meeting with Bruce probably regular for a while. Then Christmas came and I think I went away on holidays for a month in - would have been at the July, so we never met there, and I think Bruce had a couple of weeks down at Gippsland later on. That's why that 21 days came up, too, because he was away for a week and he wanted longer - - -
PN125
In your meetings in 2005, am I right in saying that you had made known to Haden that you wanted 36 hours for employees when they worked at any of these four sites that I mentioned earlier, and you'd also made some other claims for better pay and conditions when people work on those sites?---That's correct, because in those discussions with Mr Jarvis, as Mr Jarvis would know, those sites were getting a 35 hour week. Haden's have been involved in those - - -
PN126
I was just asking you to confirm whether that's something that you made known to Haden in 2005?---Well, I did make that clear to Mr Jarvis.
PN127
Yes?---Because as I was saying - - -
PN128
And Mr Jarvis - - - ?--- - - - he knew what everyone else was receiving.
PN129
Mr Jarvis's position was that he wasn't going to enter into separate enterprise agreements for each site, and that if there were to be any site-specific conditions over and above what would ordinarily apply for Haden employees, that they would be included in the appendices?---When we started off doing the EBA, you're asking me that question, the main thing was just to do an ordinary - Haden's EBA for Gippsland and then we'd look at the other four sites.
**** GARY PAUL JACOBSEN XXN MR DALTON
PN130
Yes. That is in fact the way that you conducted the negotiations until 2 August 2006?---The way we were doing negotiations, we were just about settled on the Haden's EBA, the normal EBA.
PN131
Yes?---I did four EBAs which were market rate for all those places, the same as
- close enough to everyone else, with less money, and then I gave those to Bruce
- well, Mr Jarvis, and then Mr Jarvis said he wanted them in the ordinary EBA with an appendix. And then Mr Cooney put it into
an appendix, into the ordinary EBA we did for Haden's, for when they're not on those four sites.
PN132
It's true, isn't it, that until 2 August when Mr Jarvis met with the CEPU officers and had a conversation with Mr Murphy, you and Mr Jarvis were conducting negotiations on the basis that you'd try and lock away the main EBA for Haden Gippsland employees and that once you'd done that you would then turn your minds to negotiate any site-specific conditions that would apply at any of those four sites that we have mentioned earlier?---That's correct.
PN133
If I could take you to attachment BA to Mr Jarvis's statement, I have a
folder - - - ?---Have I got that in here?
PN134
Do you remember sending - - -
PN135
THE DEPUTY PRESIDENT: Sorry, before you go on, Mr Dalton, I just need to see if I can find the material that you're referring to.
You say the attachment
to - - -
PN136
MR DALTON: Attachment BA, your Honour. Do you have that?
PN137
THE DEPUTY PRESIDENT: I don't think - I don't appear to have any attachments to the statement itself. They may well be in the folders, but - - -
PN138
MR DALTON: I understand. My instructor provided your associate with a folder with tabs, which has the attachments.
PN139
THE DEPUTY PRESIDENT: Right. Yes, I have that.
PN140
MR DALTON: With any luck, you have attachment BA, which follows attachment B.
**** GARY PAUL JACOBSEN XXN MR DALTON
PN141
THE DEPUTY PRESIDENT: Under tab B, are you talking?
PN142
MR DALTON: No, BA. There isn't one?
PN143
THE DEPUTY PRESIDENT: I don't have that. No.
PN144
MR DALTON: We will have to provide you with a copy of that, your Honour, if it's not in that folder.
PN145
THE DEPUTY PRESIDENT: I don't appear to have it.
PN146
MR DALTON: All right. If the witness could be shown this document?
PN147
Mr Jacobsen, do you recognise that document?---Yes.
PN148
That's a letter that you sent to Mr Jarvis on 10 February 2006?---Correct.
PN149
That doesn't make any mention of the site-specific conditions that you flagged with Mr Jarvis, does it?---No, because we were just doing the ordinary EBA, as I said.
PN150
That's right. So you were focusing on negotiations to lock away the main Haden Gippsland EBA?---Correct.
PN151
And what you were putting there was a log of claims in respect of the terms and conditions that would apply in the main document?---Well, some of this, when you read that, on-call, $250 a week, per week, they were some of the things I discussed with Mr Jarvis earlier and we agreed to.
PN152
Yes. But that was a set of terms and conditions which you were seeking to put in the main part of the agreement that would apply to Haden Gippsland employees regardless of the site or building that they were working on?---This is just for the ordinary Haden's EBA corrected. Like, it's got a - in there, $20 per week. That was suggested by Mr Jarvis, not by me.
PN153
Yes?---But we put that in when we had a meeting with the workers down there.
PN154
Your Honour, it might be convenient if you have a look at that document at this point so you understand it.
**** GARY PAUL JACOBSEN XXN MR DALTON
PN155
THE DEPUTY PRESIDENT: Yes. Yes.
PN156
MR DALTON: Following that, with the Work Choices reforms, from around March the union, in addition to the items that you'd set out in your 10 February letter, wanted to include a number of award conditions in light of the Work Choices reforms?---Correct.
PN157
Is that correct? Yes. So the parties spent some time over the ensuing couple of months swapping draft agreements which included their respective claims, along with the award content that you wanted to incorporate into the agreement, as well as looking at deleting clauses which were prohibited content?---Well, as far as I understand, doing it with Mr Cooney, certain things from the award can't go into the EBAs, and if it's not written into the EBA, you can't have it. So you'll be right by saying we did the right things from the award, but if it's prohibited, we couldn't put it in. They were some of the things you asked me earlier about prohibited contents.
PN158
Yes?---Well, the just got taken out by Mr Cooney.
PN159
So those discussions were happening throughout April, May, June?---They would have been.
PN160
Yes. Any clauses that the union accepted were prohibited content were crossed out?---What we believed what was prohibited we crossed out.
PN161
Yes. All right. Could I take you to attachment D of Mr Jarvis's statement?---I haven't got Mr Jarvis's statement, have I?
PN162
Do you have a folder of attachments there?---Yes. I've got Justin Cooney - - -
PN163
THE DEPUTY PRESIDENT: No, that's the attachments to your own statement, Mr Jacobsen.
PN164
MR DALTON: Yes. I think we can use this folder. It has - if you got to the tab that's marked D?---Haden's Mechanical Services Gippsland CEPU 2005?
PN165
Yes. Do you recognise that document?---Probably something I put together with Mr Cooney.
**** GARY PAUL JACOBSEN XXN MR DALTON
PN166
Yes?---So I'd say, yes.
PN167
If I could take you to clause 6.1, page 5?---Yes.
PN168
That's the agreement that you're proposing is to cover the Gippsland employees?
---Yes.
PN169
Yes, and at clause 7, it's to operate for three years?---Correct.
PN170
I take you to the hours of work clause, Mr Jacobsen?---What page?
PN171
THE DEPUTY PRESIDENT: Page 7.
PN172
MR DALTON: Yes, clause 16?---16.4? Yes, 16. Yes, right.
PN173
16?---Yes. I've got 16, yes.
PN174
Yes, 38 hours per week?---Yes.
PN175
So these are the conditions for the main Haden Gippsland agreement? It's not the site-specific terms and conditions, is it?---No.
PN176
No. But you're still trying to finalise an agreement for the Haden Gippsland employees as the main agreement and this is your offer?---That's what we put in.
PN177
Yes. If we go to the back of the agreement in the appendix, page 27, about halfway down the page, you see your wage increase offer
of four, four and five?
---Correct.
PN178
Yes. The rates that you have increased are reflected in the tables?---Correct.
PN179
Yes?---That four, four and five, what you're referring to, that was an agreement that Mr Jarvis and I had. We agreed to that four, four, five.
PN180
Yes. Now, in that agreement, you had included some additional claims compared to the February log of claims in that you sought the company's agreement to provide the full range of Incolink benefits?---That's correct. We discussed that because 90 per cent of Mr Jarvis's employees down there work on those other four sites and - - -
**** GARY PAUL JACOBSEN XXN MR DALTON
PN181
Yes. Again, I'm not asking you for the reason behind it, but that - you included that and that was not a matter that had previously been in your February list of items?---We talked about it and Mr Jarvis was supposed to get back to us on that because it wasn't worth mucking around with the two - two people. So everyone would get the same because the people move from those sites - the other 10 per cent of the workforce move from those sites and sometimes go into the paper mill or Esso onshore and offshore. So most companies turned around and said, well, it's not worth the hassle. I'll pay - I'll turn around and pay everyone.
PN182
Yes. Now, in October 2006, you know that Haden Melbourne based employees approved a non-union collective agreement?---I believe the did. That was nothing to do with me.
PN183
No. But you knew by mid-2006 that that was in fact happening?---Yes.
PN184
Yes. Do you remember in late July 2006 Mr Jarvis speaking to you over the telephone to arrange a meeting with you to try and finalise the main part of the Gippsland EBA?---In July?
PN185
Yes, late July?---I'd say late July, I would have told Mr Jarvis I was going overseas for a month, which I did. Around July. So I would have been around.
PN186
Yes. You see, the enterprise agreement that I just took you to, the draft enterprise agreement - - - ?---The one you showed me earlier?
PN187
Yes?---Correct.
PN188
That was dated - there's a draft - at the top left of that document, 21 July 2006?
---If that's what you passed me before. I haven't got it with me now, but - - -
PN189
What I'm suggesting to you is some time shortly after that Mr Jarvis has spoken to you over the phone and wanted to have a meeting with you to see if you could finalise the terms of that main EBA?---He probably did.
PN190
Yes?---Yes.
PN191
Do you remember him suggesting that he might be able to get a deal if he was prepared to offer portable redundancy and if you were prepared to drop off on the additional aspects of Incolink, such as the insurances?---We - we would have talked about that and I think we might have said to him we'd probably just about have a deal on that.
**** GARY PAUL JACOBSEN XXN MR DALTON
PN192
Yes. After having that conversation, you'd then arranged to meet with Mr Jarvis at the CEPU plumbers' office on 2 August?---I'd say, yes. I mean, I'm not disputing any of your meeting times or anything like that.
PN193
No. Some time before Mr Jarvis arrived at the offices on 2 August, did you have a conversation with Tony Murphy, the assistant secretary, about Haden enterprise bargaining?---We were talking about Haden's enterprise bargaining for Tasmania and probably Gippsland.
PN194
It came up?---Came up because Mr Jarvis was coming in.
PN195
Mr Murphy learned about the fact that Haden was going to do a non-union deal with its Melbourne-based employees?---That would have been correct.
PN196
Yes, and he wasn't very happy about that development, was he?---I'd say no, but I wasn't really interested in that because my meeting with Mr Jarvis - because I've only been interested in Gippsland.
PN197
You were wanting to focus on the Gippsland outcome because that's where you had your members and the support?---Correct.
PN198
Yes. Now when Mr Jarvis attended at the offices, you said to him, "Look, Tony Murphy wants to have a word"?---That would have been correct.
PN199
So you took him into Mr Murphy's office and then Mr Murphy made it clear he was unhappy with Haden doing a non-union deal with the
Melbourne employees?
---That would have been correct.
PN200
And he said, "You can go and get stuffed"?---Look, I don't know. It was a bit of a heated argument there. I mean, I said to Bruce, "I'm just interested in Gippsland" and I think just after that, Bruce and I was with Justin, and we just went off and talked about Gippsland. That was the finish of it.
PN201
Yes, but Mr Murphy made it clear that as far as he was concerned, all bets were off and that the union's position for Gippsland employees was now all rates and conditions that apply on those sites, those four sites that we talked about, would be the rates and conditions that Haden would pay?---No. Mr Murphy wasn't happy with Mr Jarvis going off doing an EBA or - with the Melbourne employees.
**** GARY PAUL JACOBSEN XXN MR DALTON
PN202
Yes. You've already said that. What I'm saying to you is that he also made it clear to Mr Jarvis that from his viewpoint, the position - the CEPU's position from that point was it's the site-specific rates and conditions only?---No.
PN203
And he said that to Mr Jarvis?---No. He may - they had an argument over Haden's doing a non-union agreement in Melbourne and after that discussion that - they talked about Tasmania and probably a couple of other things and then Mr Jarvis and I went off with Mr Cooney and still talked about Gippsland.
PN204
Well, Mr Jarvis says that you left very shortly after he had his conversation with Mr Murphy?---Well, when he finished with Mr Murphy, we still talked with Bruce, Mr Jarvis and myself and Mr Cooney, about Gippsland and I'd say we probably met again about a week later or two weeks later, unless I was away, but when we came back.
PN205
What actually happened after 2 August is that the CEPU was no longer interested in negotiating and locking away the main part of the enterprise agreement and then dealing with the site-specific conditions later. The CEPU changed its approach and just simply sent to the company template site enterprise agreements which were trades enterprise agreements that applied to those four sites that we mentioned. That's correct, isn't it?---No, you - I'm not quite following, but you're saying - we had an EBA just about done for the normal Haden's agreement down in - - -
PN206
You didn't conclude that, though, did you?---No, we didn't conclude it.
PN207
No, and what I'm suggesting to you is that after 2 August, your position was - that is, through the union - that you were to make the company agree to the site-specific rates and conditions and to provide the company with the template EBAs that applied at those sites?---No, we - we made - we made four EBAs for those other four sites which we discussed earlier in the piece. We just wanted the ordinary Haden's EBA done and then those other four sites to go through. Then Mr Jarvis wanted them all put into an appendix.
PN208
THE DEPUTY PRESIDENT: I'm sorry, can I just interrupt there, because I'm getting a little bit confused by the question you're asking Mr Dalton. Is the question that you're asking, that the CEPU were attempting to gain an agreement based upon the four sites for all of the Haden employees, regardless of whether they worked on those sites? Is that the question you're asking?
**** GARY PAUL JACOBSEN XXN MR DALTON
PN209
MR DALTON: You remember your initial position, back in 2005 was to have separate terms and conditions that reflected the specific sites and Mr Jarvis said, no, he wanted one agreement, and for any site-specific conditions that might be negotiated, for them to be put in as appendices to a main agreement. Do you remember that?---I remember doing - Mr Jarvis wanted an ordinary EBA.
PN210
Yes?---Ordinary EBA.
PN211
One EBA?---One EBA and those other four sites they'd look at and that would be put together.
PN212
Yes?---And we did that and Mr Jarvis said, no, later on down the track, months and - - -
PN213
THE DEPUTY PRESIDENT: Well, let's not get down the track too far, because I'll get confused, Mr Jacobsen?---Mm.
PN214
The without prejudice document that you were taken to before, which was in that big folder, that is, the draft agreement that the CEPU sent to Haden's, are you familiar with the one I'm talking about? The one that Mr Dalton took you to a few moments ago, with - - - ?---Yes, that's - - -
PN215
It's under tab D?---Yes, that was the one I discussed with Mr Jarvis, yes.
PN216
Yes. So that represents, in draft form, essentially a core document to which at that point in time were to be added some appendices
representing the four sites?
---Correct.
PN217
Is that correct?---Yes.
PN218
Yes. Then, and this is as I understand it, after the meeting of 2 August, what Mr Dalton is putting to you is that there was then a change in the approach of the CEPU, that it no longer sought to have the document which is under tab D and appendices, but something else? I'm not entirely sure what else, so perhaps, Mr Dalton can take over at this point.
PN219
MR DALTON: Yes.
PN220
What I'm putting to you is that after 2 August, you were no longer interested in finalising and locking away that main enterprise agreement, and you were simply just saying, "Here are these four EBAs that apply for tradespeople at these sites. We want you to sign up to those rates and conditions"?---We did those four sites, those EBAs for those sites, and put them together and gave them to Mr Jarvis.
**** GARY PAUL JACOBSEN XXN MR DALTON
PN221
Yes, and you did that after 2 August?---After he knocked back this one, when we spoke to him about those other sites. Because he said, no, no, that's going to do all my sites. Because earlier, when we started off, we were just doing one EBA and then we were doing those four sites so we put four site agreements together and gave them to Mr Jarvis and that's when he said they're not getting the 36 hour a week, when everyone else has been getting a 35 hour a week. Those four sites. But around that time he said, "I want to put in the EBA", which was the standard EBA, which would have been this one, D, later on down the track we put that in as an appendix.
PN222
Yes. I'm not asking about later down the track. I'm saying the original negotiating protocol that you and Mr Jarvis were content to follow was that first of all you would negotiate, finalise and lock away that main part of the EBA which applied to Haden Gippsland employees generally?---Right.
PN223
And that following that, once you had finalised that, you would then sit down with a view to reaching agreement on any site specific conditions that would apply and any agreement on those would be put in appendices. That was the negotiating protocol?---Right, but you can't do the - I believe you can't do the ordinary EBA and get it certified - - -
PN224
No, I'm not suggesting - - - ?--- - - - and then put in appendices later - - -
PN225
I'm not suggesting you were going to have it certified. That was the negotiating protocol, wasn't it?---I'm still not quite following what you're saying. That was the ordinary EBA, what we did, and then the appendix were going to come later.
PN226
Correct. What I'm suggesting to you is that after 2 August, those site-specific conditions weren't to come later because you hadn't
finalised the main agreement. You just simply said, "This is our position. You sign up to these site-specific rates and conditions"?---No,
because the paper mill one hadn't - Esso onshore hadn't been finalised, what everyone was getting in their percentage. They were
getting five, five and five over the next three years. So that's why I said I
couldn't - - -
PN227
THE DEPUTY PRESIDENT: Sorry, Mr Jacobsen, I'm getting confused again. What did the union send to the company after 2 August by
way of its position on the agreements that would apply? You said you'd put together four - - - ?
---Separate EBAs.
**** GARY PAUL JACOBSEN XXN MR DALTON
PN228
Four separate EBAs, and they were to apply to Haden employees when working on any one of those four sites?---Correct.
PN229
What happened to this document, under tab D?---This one? Well, Bruce would have still had that.
PN230
Yes, but what was its position as far as the negotiation was concerned? It became defunct, did it?---No, that would have stopped exactly the same for people not working on those.
PN231
So you intended to certified five agreements?---And then we were told we can't, I believe, so we had to go - - -
PN232
I'm not interested in what you can or can't do. I'm interested in what you, at that stage intended to be the case?---That would have been correct.
PN233
MR DALTON: Now, those four agreements that his Honour is referring to are at attachment D of Mr Jarvis's statement. Could I ask you just to look at them and to confirm that? So look at the tab marked E?---Yes.
PN234
Yes, and have a look at those documents. Those were the documents that you sent to Mr Jarvis?---Correct.
PN235
Correct?---Correct.
PN236
Now, in each of those - if we look at all of them together, they contain different wages rates, correct?---Correct.
PN237
They contain different percentage increases year to year?---Correct.
PN238
And they contain different allowances?---Correct.
PN239
They also contain different allowances on matters such as call-out compared to the - to what you had been negotiating with Mr Jarvis?---I
don't think about the call-out, because the call-out was marked in each one of these. I believe that
$250 - - -
PN240
Well, can I take you to the Maryvale document? The call-out is clause 18, I think, page 12 of 23. If you just have a look at that clause?---Yes, the call-outs.
**** GARY PAUL JACOBSEN XXN MR DALTON
PN241
You'd accept that's quite a different clause to the call-out provision that you and Mr Jarvis had been negotiating to that point?---Correct.
PN242
In fact, you and Mr Jarvis had agreed that the call-out payment should be $50?
---That is not correct. We had agreed $250.
PN243
Sorry, I beg your pardon, $250, yes. An increase from $150 to $250, correct?
---Correct.
PN244
Yes.
PN245
THE DEPUTY PRESIDENT: But, sorry, are we now talking about a circumstance that goes back to the document under tab D?
PN246
MR DALTON: Yes, your Honour.
PN247
THE DEPUTY PRESIDENT: Which was only ever intended to cover core conditions and at that stage was not intended to deal with site-specific conditions of the four employers that you have drawn attention to?
PN248
MR DALTON: That's correct, your Honour.
PN249
THE DEPUTY PRESIDENT: Yes. All right. Thank you.
PN250
MR DALTON: Now, if we look at the particular wage increases that were proposed, there were wage increases ranging from five, five and five in the case of Esso offshore?---And onshore, five, five, and five.
PN251
Yes, five, five and five. And for the CEPU power stations, it was 2.5 per cent? You didn't make it clear anywhere in your communications
with Mr Jarvis how those percentage increases were to relate to the four, four and five that you'd put in your draft EBA, the main
part of the agreement in attachment D, did you?
---When you say four, four and five and the D, that was the standard EBA we were doing, the Haden's EBA. That was an agreement that
Bruce and I came up, because he gave the people in Melbourne four, four and four.
PN252
Yes?---And we accepted four, four and five and dropped our - I think he pays the Melbourne people 10.5 per cent super and we agreed to go back to the 9 per cent super.
**** GARY PAUL JACOBSEN XXN MR DALTON
PN253
And then after 2 August, not having finalised that core agreement, you sent in four different documents which contained different wage rates, different percentage increases and different allowances and other conditions, on hours of work, et cetera?---Well, Mr - I sent those to Mr Jarvis, which was the market value for every other tradesmen down on those sites, and as I said earlier, Mr Jarvis has been down in Gippsland for a number of years and attended AIG meetings and paper mill meetings and he knows what the percentage rate is and part of being an organiser, you do talk to the employees down there and Haden's had just never passed it on over the years.
PN254
Now, on 26 September, you served the company with a bargaining notice?---That would have been correct.
PN255
Yes. Could I take you to attachment G? That's the bargaining notice, yes?
---Correct.
PN256
If you'd just turn the page and have a look at the list of claims? We don't see any specific claims for particular rates and allowances there, do we? You just mention the general topics, correct?---One sec. No, that's correct.
PN257
So that doesn't shed any further light on what exactly the union wants, does it?
---Well, I disagree with you there because what we're really after is the EBAs I put together and we've been discussing over the
last 18 months.
PN258
All right.
PN259
THE DEPUTY PRESIDENT: Sorry, Mr Jacobsen, the document under D which was the core document, Mr Jarvis had as of some time in late July?---Yes.
PN260
The documents under E which were the four separate agreements for the sites you sent to Mr Jarvis some time after 2 August?---Yes, correct.
PN261
What would have been an agreeable situation at that point for the union?
---Agreeable - would have been just - what we wanted, what we were talking about was just a normal Haden's EBA for people not working
on those four sites, which would have been the four, four and five.
PN262
Which would have been the document under D?---D, yes. Pretty close to that, yes. And we just about had that, under D. Until I gave Mr Jarvis the four separate EBAs.
**** GARY PAUL JACOBSEN XXN MR DALTON
PN263
Yes, but then what did you want? What did you want the company to agree to when you sent him out the four documents?---The market value what everyone on those sites have been - - -
PN264
Yes, but what specifically did you want to happen? What would have been an ideal circumstance for the union at that point in time? Mr Jarvis has now got five documents, five documents that had been forwarded to him by the CEPU. For the CEPU to have been content with the outcome of its negotiation, what should he have then done?---Well, we - we did what Mr Jarvis asked. He asked us to put it into one EBA, those four, which we did because a lot of it was double-dipping in those - - -
PN265
So you went beyond what this - you went - you did something and put what into these four, Mr Jacobsen? I don't understand?---Well, these four EBAs, Mr Jarvis wanted them put into one EBA.
PN266
Yes, which is what - - - ?---And we - - -
PN267
What you were aiming at in the first place was to have the document under D ultimately with some appendices - - - ?---Correct.
PN268
- - - reflecting the different positions at different sites?---Correct.
PN269
But now, as of just after 2 August, there are in fact five separate documents?
---Past August, we put them all into one.
PN270
When did you do that?---I'd have to ask Mr Cooney.
PN271
MR DALTON: Yes, perhaps we'll get to that, your Honour, in the questions.
PN272
THE DEPUTY PRESIDENT: All right. Thank you. Yes.
PN273
MR DALTON: Could I take you to attachment H? That should be a letter from the union to Mr Jarvis dated 29 September 2006 from Mr Earl Setches. Is that it there? 29 September?---Yes, 29 September.
PN274
Do you recognise that document as being a letter from your state secretary to Mr Jarvis?---Yes.
**** GARY PAUL JACOBSEN XXN MR DALTON
PN275
Yes. So now we see the position of the CEPU in the second paragraph. That is, amongst other improvements to employees' wages and conditions, the union is seeking a three-year agreement with annual pay rises of 6 per cent:
PN276
Mr Jacobsen looks forward to soon hearing from you regarding arranging a time and venue for negotiations for the new agreement.
PN277
So that was the position of the CEPU as at 29 September, correct?---We just threw that in to get negotiations back on track.
PN278
Right. We've got a few things thrown in, don't we, in relation to the - the 16 employees we have at this stage, we have five separate documents and we've got a letter dated 29 September 2006 moving away from four, four and five, to 6 per cent for three years. That's in fact the position, isn't it?---No. I wouldn't say we - a few things thrown in. We only put that in to get - - -
PN279
Sorry - - - ?--- - - - Mr Jarvis back talking.
PN280
What I put to you is in fact the position as at 29 September. You've given the company five separate documents, that is attachment D plus the four documents in attachment E which you have previously identified?---Correct.
PN281
Correct, and then you followed it up with the 29 September 2006 letter saying we want six, six and six, plus other improvements in wages and conditions?---No, we put that in - you're talking about the five, which we did. We put this in to get the negotiation back on - - -
PN282
Again, Mr Jacobsen - - - ?--- - - - track and then we put it into one - - -
PN283
- - - I'm not asking you for the underlying reason for the correspondence. What I'm asking you to confirm is that that is in fact the position that the CEPU has communicated to Mr Jarvis as at 29 September?---Well, what I'm saying is we put that - - -
PN284
THE DEPUTY PRESIDENT: Well, it's self-evident on its face, Mr Dalton. I don't think you can take it too much further.
PN285
MR DALTON: Yes. Now, if the witness could be shown this document?
**** GARY PAUL JACOBSEN XXN MR DALTON
PN286
THE WITNESS: Thanks.
PN287
MR DALTON: Now, Mr Jacobsen, do you recognise this document that I've handed you?---Yes, correct.
PN288
That's the draft core enterprise agreement that the union gave to the company in late October - - - ?---Correct.
PN289
- - - of 2006?---Correct.
PN290
Yes. Again, it's to cover the Gippsland employees? Yes?---Correct.
PN291
If I can take you to page 6 of that agreement, clause 14, you'll see it's got a right of entry provision there?---Correct.
PN292
If I take you to page 11 - - - ?---Just on that - - -
PN293
No, I'm not asking you a question - - - ?--- - - - right of entry - - -
PN294
- - - in relation to that, Mr Jacobsen - - - ?--- - - - I think I covered that earlier.
PN295
I take you to page 11, clause 25, wages and allowances?---Yes, 25.2.
PN296
Yes. So we're back now to four, four and five?---Correct.
PN297
Yes. You have the full Incolink claims?---Correct.
PN298
Yes, which is portable redundancy plus the insurances?---I remember that.
PN299
Yes?---The deal on redundancy, correct.
PN300
Page 21, you've got some rates of pay there?---Correct. That would have been on the four, four and five.
PN301
That's four, four and five, and we have the hourly rates set up in the tables there. The next page you've got an appendix B which is onshore Esso?---Correct.
PN302
You've got 35 hours per week?---Correct.
**** GARY PAUL JACOBSEN XXN MR DALTON
PN303
Pages 24 and 25, you've got various rates of pay that are different than in the main document and you've got five, five and five?---That's the appendices, yes.
PN304
Yes?---That would have gone to probably offshore. Appendix B was onshore. I think the one earlier, we've got the - our normal EBA for Haden's on page 21, then we go to the offshore, as I say.
PN305
And in the various appendices, what we see are the different rates of pay with different percentage increases to apply to those rates?---That's the market value for those jobs. That's why you've got different rates.
PN306
And different allowances and additional allowances, correct?---Correct, for those jobs. As I said, the market value for those areas.
PN307
Yes. Those are matters that you had not sat down and negotiated with the company at this time, correct?---Not quite.
PN308
Well, not at all. You'd just simply sent these documents, these four documents and then in late October, what you do is you put them in as appendices to the one agreement?---Mr Jarvis asked us to put them into an appendix, which we did, in this document.
PN309
And that's the extent of the negotiations on those site terms and conditions?---No. Mr Jarvis asked me in those other four EBAs, to send them to him, and what the rate is and he asked them to be put into the appendix.
Your Honour, I tender that document.
EXHIBIT #HADEN1 - HADEN MECHANICAL SERVICE GIPPSLAND & CEPU COMPANY AGREEMENT 2005-2008
PN311
MR DALTON: If I take you to attachment I, you remember receiving that document from Mr Jarvis?---That's correct.
PN312
That letter? Expressing his disappointment that you have submitted five enterprise agreements and that Haden is more than happy to meet with the employees and the union to discuss a legitimate log of claims for the Gippsland business?---When I received that letter, I spoke to Mr Jarvis and he asked me to put it all into one, which we did.
**** GARY PAUL JACOBSEN XXN MR DALTON
PN313
Right, and so following that 20 October 2006 letter, what we see is Haden1, that's the document that I have taken you to?---What you gave me?
PN314
Yes?---Correct.
PN315
All right. Now, following receipt of this draft enterprise agreement by Mr Jarvis, do you remember meeting with him on 26 October 2006?---On 26 October?
PN316
Yes?---I probably would have.
PN317
Yes?---In our office or his office.
PN318
Yes, all right. And in that meeting, you went through the parties' respective positions and calculated the union's various claims as to how much they would cost the company?---Bruce came up with a figure.
PN319
Yes, in percentage terms?---Yes.
PN320
Yes. You took no issue with his calculation, that the cost - the percentage cost of the allowances alone was 16.3 per cent?---Is that in the other four EBAs, or the first one? The Haden - normal Haden's EBA or across the board or - - -
PN321
No, for the site - the effect of your allowances claim, for the site-specific - - - ?
---For the first - for the first EBA, the normal one.
PN322
No?---16.5 per cent, or 16.3 for the other four EBAs.
PN323
Yes, that's right. Yes. You understood that and took no issue with that?---No.
PN324
That was for - that's per annum?---Well, I can't give you an answer for - if that's what it all comes to. Mr Jarvis came up with that and we agreed with him.
PN325
You took no issue that that was a per annum percentage increase in costs, the allowances alone for those sites?---Well, that 16.3, what Mr Jarvis is pointing out, and as I pointed out - - -
PN326
THE DEPUTY PRESIDENT: Well, if you took no issue with it, you took no issue with it. It would to me in any event to have been speculative, wouldn't it, Mr Dalton? It talks about work that might be done by the company in the future at those sites.
**** GARY PAUL JACOBSEN XXN MR DALTON
PN327
MR DALTON: Yes. I'll move on, your Honour.
PN328
THE DEPUTY PRESIDENT: Thank you.
PN329
MR DALTON: Of course, that was in addition to the four, four and 5 per cent to apply across the three-year period that was in the May agreement?---The four, four and five was just for the first agreement. That's a stage on its own.
PN330
Yes?---The other four agreements, as I've said earlier, we were just asked the
- after the market value the same as everyone else, and as I said earlier, Mr Jarvis has been to those meetings over the years,
number of years when there's been pay rises and it just hasn't been passed on to these workers.
PN331
Yes, so you keep saying, but what I want to clarify here is that the cost to the company was the cost of the allowances and rates that were to apply at the sites, those specific sites, and in addition to that, there were percentage increases to apply which you have set out. For example, five, five and five in the Esso onshore and offshore, correct?---That's correct. That's no different than anyone else that works there.
PN332
Right. That's what you mean by market rate?---Market rate, five, five and five, yes.
PN333
Yes, plus the - - - ?---Plus the allowances, same as - - -
PN334
- - - to get them up to the rate that you thought was market rate?---Well, I don't think it's market rate. It's the market rate, but I mean, Mr Jarvis would have seen other EBAs down there, like I said, everyone else has got down there. He would have been to, as I said, AIG meetings over the years down there for Esso, so he knows what everyone's roughly getting down there. The only difference we did, Mr Jarvis, we dropped it from the 35 hour a week to the 36.
PN335
So you have 36 hours per week - - - ?---And everyone gets 35 hour a week.
PN336
Plus you've got the rates that you specified in the appendices?---Mm.
PN337
Plus the percentage increases that you have specified in the appendices?---That would have been correct. You're saying that the rates that we've got in it?
**** GARY PAUL JACOBSEN XXN MR DALTON
PN338
Yes. And what I'm suggesting - - - ?---Put them in - - -
PN339
What I'm suggesting to you is that those rates that you've got in the appendices on average across those sites involved a percentage increase to the hourly rate of something in the range of 16 per cent per year?---Well, I'm sure Mr Jarvis's rate would have went up a hell of a lot, too, over the years.
PN340
Right, but it's not something that you took issue with by coming back with different figures to show that in fact it wasn't 16 per cent per year?---I didn't work out the figures for that 16 per cent that you're saying. Haden's worked out 16.3. I just said the market rate, the same as everyone else.
PN341
Right. Do you remember Mr Jarvis in that meeting said to you that the level of increases that you were claiming would send the Gippsland business broke?---He would have said that, Mr Jarvis. All employers say that.
PN342
You didn't take that seriously, did you?---Not really because Mr Jarvis would have put his hourly rates up to compensate what we're putting in - what we put in for. Because as I keep on saying, he keeps on - he goes to the meetings, so he just hasn't passed it on over the years.
PN343
And you've never had any discussion with him about whether he's in a position to increase his contracts with his clients such that he could wear this large increase in wages costs?---I've had discussions with employees down there and I've let them know that Haden's pay roughly $24 an hour and I've had discussion with the employees, talking to them. What everyone else gets, roughly, down on those sites - - -
PN344
So the answer to my question - - - ?---Hang on. They've turned around and said they'd be very disappointed with Haden's if they'd never passed - passed it on.
PN345
Mr Jacobsen, the answer to my question is, no, you didn't have any discussion with Mr Jarvis or anyone else from Haden about their ability to pass on these costs to their clients, did you?---I've had discussions with the - - -
PN346
THE DEPUTY PRESIDENT: Just answer the question, Mr Jacobsen?---I would have, yes.
PN347
MR DALTON: I'm suggesting to you, no, and that if you had any discussions, it's with these other people that you're talking about,
not with Haden people?
---I've had discussions with Mr Jarvis over the money and the 36 hour a week down there and he's just said, blunt, they're not getting
a 36 hour a week.
**** GARY PAUL JACOBSEN XXN MR DALTON
PN348
Yes. Now, you gave him an ultimatum on 26 October, whereby the company had to get back to you by midday the following day and confirm that it was prepared to agree to all of your claims?---I'd say yes.
PN349
Yes, and you made it clear that if they didn't, the union then would embark on a campaign of industrial action to press its claims?---That would have been in the letter we sent to Mr Jarvis.
PN350
All right?---But we were still negotiating at the time, so I don't - not sure - nothing happened after that letter went in.
PN351
Yes?---Because I think Mr Jarvis was away on holidays down at Lakes Entrance.
PN352
All right. Now, do you remember having another meeting with Mr Jarvis on 21 November, by which time Mr Jarvis had further assessed the cost impact of your claims and he spoke to you about that?---That would probably be correct. We would have had a meeting with Mr Jarvis, Mr Cooney and myself at our office or his office.
PN353
Yes. And that he said that the wages bill would more than double over three years and that he wasn't prepared to meet such exorbitant claims?---He probably would have.
PN354
Your position was unchanged compared with the position in late October?---Our position hadn't changed from this EBA, to just get it tidied up, cleaned up.
PN355
Yes. Now, you made application for a secret ballot on 28 November 2006. Do you remember attaching a schedule of wages and allowances to that application, or do you remember sending to the company a schedule of rates and allowances around that time?---Mr Cooney would have done that.
PN356
You accept, though, that that has happened and that the company was sent from the union a document which set out the particular rates and allowances that you wanted?---They would have got that, would have been in this EBA. Mr Jarvis knew what we were after, so they would have got that.
PN357
Can I take you to attachment O of Mr Jarvis's statement?---I haven't got Mr Jarvis's statement. I've got - - -
**** GARY PAUL JACOBSEN XXN MR DALTON
PN358
Well, but you have the attachments?---Yes.
PN359
Do you recognise that document?---All I've got in O is our wages increases. Is that the one you're talking about?
PN360
Wages and it's got allowances under the - - - ?---That's correct.
PN361
Yes?---Yes.
PN362
So am I right in saying that this was the position of the union on wages and allowances as at late November, when it's made this application for a secret ballot?---That would be correct. Haden's asked us - or Mr Jarvis asked us, because their pay, they wanted a clear figure.
PN363
Yes. So we've - - - ?---When I say a clear figure, I mean with allowances and everything added up. He just wanted an hourly rate put in. So that's what we put it in like that for him. For the pay office.
PN364
So it's not until the end of November that you have clearly identified what rates and allowances you were seeking in respect of these various sites?---I wouldn't quite agree with that, what you said. We just put this down in the allowances like that. We've broken it up, to make it easier for Mr Jarvis. I mean, the hourly rate still comes out the same as this EBA, what we have - talking about. We've just broken it up to make it easier when they go onto those sites, so if those sites are, say, $30 an hour - - -
PN365
Yes, it's different from what you have put in the October enterprise agreement, isn't it?---I'd say no.
PN366
The draft enterprise agreement contains a whole range of rates and allowances. What I'm putting to you is that in late November, what you've done is condensed all that and put it in a table?---We've put it in a table, made it easier for Mr Jarvis.
PN367
All right?---For his pay office.
PN368
And at this stage, in the document, you say that there will be a 36 hour week?
---Correct.
PN369
Could I take you to the 27 November correspondence from the union, and I think that's attached to Mr Jarvis's statement. It's attachment
N. This letter encapsulates what the union is seeking, both in respect of the main body of the enterprise agreement and anything
that might be site-specific in the schedules, correct?
---Correct.
**** GARY PAUL JACOBSEN XXN MR DALTON
PN370
Yes. So if we look at call-outs, the claim is $250 for call-outs?---Correct. That's what we agreed upon.
PN371
Yes, so you're no longer pursuing the APM Maryvale specific call-out arrangement that I referred to you earlier?---If we could sit down and wrap that up with Mr Jarvis, we could, but he doesn't want to.
PN372
The wage rates, you agree to there being one rate of pay and then allowances payable according to the relevant site; those allowances according to the relevant site we see in the document that I referred you to earlier in attachment O?---That's correct. For those relevant sites with those allowances, comes up to the market value of the hourly rate.
PN373
Yes, yes. Now, you were asked some questions by Mr Cooney about a meeting last week, I think, when the company had done some more work on the costings of your claim based on the position you put in late November. In that meeting, you didn't take any issue with the company's calculation method or the company's actual calculations, did you?---No. Mr Cooney did that because I'm not up with figures.
PN374
Yes. There was no dispute over the method of calculation or the actual calculations, was there?---Mr Cooney had a dispute over it.
PN375
You sat in on the meeting, didn't you?---And I just said I'm not up with the figures, the way - - -
PN376
What I'm asking you is that - you don't need to be on top of figures to know whether Mr Cooney agreed with the method and the actual calculations?---So what are you - - -
PN377
What I'm putting to you is that he didn't put any of those things in dispute?---I put it in or Mr Cooney put it in?
PN378
Mr Cooney. You say you're not on top of figures?---He did put in a dispute, how he got from four, four and five and the person came up with something like 36 per cent or 100 per cent or something, the way he worked it out.
PN379
All right the union hasn’t put forward it’s own costings has it?---No.
**** GARY PAUL JACOBSEN XXN MR DALTON
PN380
Has the union discussed with the company, last week or at any other time what the actually costing pack is and what the company might be able to do about it in terms of passing on any costs to its clients?---No, we didn’t ask that.
PN381
You’ve not taken any of that into account because you’re just simply claiming what you regard as market rate down at those sites, that’s correct?---I wouldn’t say that’s correct - - -
PN382
You said it a number of times in your evidence?---I’ve said about the market rate down at those sites and I’ve said that Mr Jarvis has been to a number of meetings down there with the AIG and other clients for Esso and other people, and they know what the market rate is down there. So Mr Jarvis would know what percentage he’d put in for his bill.
PN383
Now the company calculates that the cost to the wages bill not including on costs if we look at 36 hours that fully cover in the wages increases and getting people up to the site rates at these various sites, amounts to over 40 per cent. You would agree that for most if not all employers an increase of that size could well jeopardize the business?---I don’t know if it would come to 40 per cent or not.
PN384
Yes, but you’ve not responded to that have you?---No, I haven’t responded to that, they’re Haden’s figures.
PN385
No further questions.
PN386
THE DEPUTY PRESIDENT: Thanks Mr Dalton. Re-examination Mr Cooney?
MR COONEY: Yes, your Honour.
<RE-EXAMINATION BY MR COONEY [10.52AM]
PN388
MR COONEY: Mr Jacobsen can I take you back to annexure D of Mr Jarvis statement attachment D which is the – if I could term that as the general Haden agreement. It would be fair to say that at that point in time negotiations were on a more jovial atmosphere?---I’d say correct.
PN389
THE DEPUTY PRESIDENT: Sorry, Mr Cooney before you go any further, it would be fair to say is a fairly – is a way of leading into a – or going into a leading question, you just be careful in the future once - but go on.
**** GARY PAUL JACOBSEN RXN MR COONEY
PN390
MR COONEY: Sorry your Honour. What I’m trying to drive at there seems to be some dispute about the number of agreements at that time and what was sought to be done.
PN391
That agreement was to cover the Gippsland employees generally with the exception of the sites at Esso onshore offshore, Maryvale Paper Mill and the power station?---That’s correct but it needed to be tidied up.
PN392
Those agreements would be negotiated subsequently based on what’s been termed the market rate?---Correct.
PN393
If I could go to the statement of Mr Jarvis at page 6 clause 21 - - -
PN394
THE DEPUTY PRESIDENT: I don’t think Mr Jacobsen has a copy of that with the attachments.
PN395
MR COONEY: I ask that he please be given a copy. Sorry Mr Jarvis statement page 6 at paragraph 21?---I still haven’t got it, this is D.
PN396
MR DALTON: Your Honour we don’t have a clean copy of that statement.
PN397
THE DEPUTY PRESIDENT: I’ll provide the witness with one.
PN398
MR DALTON: Thanks your Honour.
PN399
MR COONEY: Have you got paragraph 21?---Yes.
PN400
It refers to a meeting with Mr Murphy, Mr Jacobsen and Mr Cooney, who was acting as the industrial officer. At that meeting it was noted that Haden’s had reached a non union agreement for their Melbourne staff?---Correct but that didn’t worry me.
PN401
At that time were you still seeking a general Gippsland agreement and an agreement to cater for those four separate sites?---Correct.
PN402
That meeting occurred before the bargaining period was lodged?---Correct.
PN403
At clause paragraph 25 same page of Mr Jarvis statement it says that the agreements that had been emailed a few days previous sought 36, or 35 hour weeks depending upon the site?---Correct.
**** GARY PAUL JACOBSEN RXN MR COONEY
PN404
Is that the union’s current position?---The union’s current position as I’ve said to Mr Jarvis, we’re just after the 36 hour week.
PN405
Thank you?---The others are on a 35 hour week but we just agreed to a 36.
PN406
Now if I can take you to page 8 of Mr Jarvis’ statement, it is at paragraph 33. It states there that the claims came to 16.3 per cent for allowances and 13 per cent wage claims over the three years for the life of the base agreement being four, four and five, that’s consistent with the union position?---Correct.
PN407
Now could I take you to attachment M to the annexure to your statement.
PN408
THE DEPUTY PRESIDENT: No, you’re in the wrong document Mr Jacobsen, annexure to your statement.
PN409
MR COONEY: Annexure M it’s a letter from the union to Mr Jarvis?---In my statement?
PN410
Yes?---What did you say M?
PN411
M, M for Mary?---I’ve only got numbers.
PN412
THE DEPUTY PRESIDENT: It’s the top right-hand corner I think in the annexure to your statement not the statement itself?---I’ve got to say, M yes.
PN413
MR COONEY: M just the one before that?---Yes.
PN414
You’ll see in the middle of the page and I’ve asked this previously, three dot points, 1, 2 and 3?---Correct.
PN415
Again at the 36 hour week, does the union not offer a phasing in of that over the life of the agreement?---Correct.
PN416
MR DALTON: I object to that, these questions were asked in examination-in-chief, this is just repetitive and unnecessary.
PN417
THE DEPUTY PRESIDENT: Yes Mr Dalton’s correct about that, you have asked these questions before.
**** GARY PAUL JACOBSEN RXN MR COONEY
PN418
MR COONEY: Just to indicate movement.
PN419
THE DEPUTY PRESIDENT: But are there any matters arising from cross-examination that you wish to explore, by all means do so, there’s not much point in regurgitating what we heard in examination-in-chief.
PN420
MR COONEY: Okay, thanks your Honour. Mr Dalton asked you about costings about Haden’s – of the way it’s claims for Haden’s – you attended a meeting on Friday at Nottinghill at the Haden’s premises?---Correct.
PN421
Was Mr Jarvis asked for copies of the contracts between Haden and the various companies?---Correct.
PN422
What was the response?---Private and confidential.
PN423
So Mr Jacobsen on what basis are you able to assess the claims that you are seeking? What information is available to you?---The market rate what everyone else is getting down there.
PN424
Thank you that’s enough your Honour.
THE DEPUTY PRESIDENT: Okay, thanks Mr Cooney. Mr Jacobsen you can step down now and thank you for your evidence.
<THE WITNESS WITHDREW [11.01AM]
PN426
THE DEPUTY PRESIDENT: Mr Cooney?
PN427
MR DALTON: Your Honour perhaps before we call the next witness, I’ve got a spare copy of attachment B8 including the folder.
PN428
THE DEPUTY PRESIDENT: That goes in the attachments to Mr Jarvis statement?
PN429
MR DALTON: Yes, after attachment B.
PN430
THE DEPUTY PRESIDENT: Yes, thank you. Mr Cooney?
MR COONEY: Yes, your Honour could I ask that Mr Davison be called to the stand.
<IAN GEORGE DAVISON, AFFIRMED [11.01AM]
<EXAMINATION-IN-CHIEF BY MR COONEY
PN432
MR COONEY: Your Honour, if I could ask that Mr Davison could be given a copy of his statement. Your Honour I might have not photocopied off enough copies.
PN433
THE DEPUTY PRESIDENT: I have a copy.
PN434
MR COONEY: This is a statement that was prepared on the basis of your information in lieu.
PN435
I asked that that be tendered and marked as.
PN436
THE DEPUTY PRESIDENT: Do you want Mr Davison to attest to it’s accuracy first Mr Cooney?
MR COONEY: So it’s a fair and accurate description?---A fair and accurate description yes.
EXHIBIT #CEPU2 STATEMENT OF MR DAVISON
PN438
MR COONEY: Mr Davison what are you employed as by Haden?---As an air conditioning mechanic.
PN439
You are a qualified tradesperson?---Yes.
PN440
In?---Air conditioning and refrigeration.
PN441
If I could take you to point 3 of your statement?---Yes.
PN442
You say there that you’ve attended at least three meetings with other employees of Haden’s?---Yes.
PN443
Who else was at those meetings?---Mr Bruce Jarvis, our, a couple of old branch managers, Dan Morrow plus all the trades people and technicians that worked with Haden at that time.
PN444
You prepared some handwritten notes?---Yes.
PN445
As a result of those meetings were they prepared at the time of the meeting?
---Yes.
**** IAN GEORGE DAVISON XN MR COONEY
PN446
If I could take you to the first page of the handwritten note and that’s the one dated 14 January 2003. You have written down there list of demands including the 36 hour week?---Yes.
PN447
$2.50 availability?---Yes.
PN448
6 per cent per year pay increase?---Yes.
PN449
Redundancy?---Yes.
PN450
What was the response of Mr Jarvis to those claims?---At the time he said there will be no 36 hour week, towards the $2.50 availability, there was no 6 per cent it was going to be on, you know, whatever we could come to agreement with, it turned up being four, four and five and redundancy, well we still haven’t got redundancy.
PN451
This is on 14 January 2003?---Yes.
PN452
If I could take you to the next handwritten note?
PN453
THE DEPUTY PRESIDENT: Sorry 14 January?
PN454
MR COONEY: 2003 your Honour.
PN455
THE DEPUTY PRESIDENT: 2003?
PN456
MR COONEY: 2003, correct your Honour. If I can take you to the next handwritten note which is dated 15 December 2005 and this is post expiration of the Haden EBA agreement, you have listed there the people present at that meeting?---Yes.
PN457
The notes that you have written there, all power industry Esso and APM awards, separate appendix?---Yes.
PN458
Is that your position or?---That’s what we were after and Bruce said there will be no separate appendix for those ones.
PN459
You at point 3, it’s noted that Esso has contract, we had to lower our costs by one and a half per cent?---That was a statement by Bruce he made that statement to say to us, we were asking for a pay increase for working on the offshore rigs. He said well Esso the last contract we had to lower our costs by one and a half per cent. That was the statement that Bruce made to us at the time.
**** IAN GEORGE DAVISON XN MR COONEY
PN460
Was there any overhead prepared of the contract or anything?---No nothing just an informal discussion between the people at that meeting.
PN461
All right at the 6 point down, it says, we will not lose contracts where we lose money?---It’s another statement that Bruce made at the time, we can’t afford to do contracts obviously to lose money, which we understand that you know.
PN462
If I can take you to the third point there the third page, 12 October 2006. You say that they are marked agreed?---Yes.
PN463
That’s Incolink?---Yes, this is from our official demands that we’ve – well that we asked for at the start of the negotiation period and that’s what Bruce actually agreed on, it’s the agreement between us and the union.
PN464
13 per cent over three years?---That’s four, four and five the same as the previous EBA.
PN465
And $250 call-out?---Yes, which we ended up agreeing on yes.
PN466
Okay, not agreed list there, action trauma, income protection, and a 35 hour week, that would be site specific?---That’s site specific yes.
PN467
At the third point down there as far as company’s concerned, all bets are off, August?---That was for back pay and it was a sweetener for us signing on for the agreement and he said it’s taken so long, all bets are now off and that was done for the union in August – the union was advised of that in August that all bets were off and obviously we hadn’t heard that we were just asking the question there.
PN468
Could I ask when you last received a pay increase roughly?---July 2005, we were due for one under the current EBA – the new EBA in July 2006 this year, we haven’t had one since then.
PN469
It says down the bottom there, would like to strike a rate across the board, could I ask you what that note is in regard to?---Basically because of what Haden obviously thought was getting too complicated for all their payroll staff, different rates at different sites, because we work on different industrial sites, we said we want to strike a flat rate across the board so we can keep it simple basically, that’s what Bruce said.
**** IAN GEORGE DAVISON XN MR COONEY
PN470
At some of those sites under your previous EBA there were site allowances?
---Yes, there is some, yes.
PN471
Then it goes on further not having journey insurance, income protection or trauma insurance?---Due to some of the different EBAs, appendixes that were brought up, Bruce said you’ve already got this in this one, you’re not having it here, here and here, not the type of thing, because all the different appendixes brought up by different areas for different sites.
PN472
Could I ask you what you understand this application before the Commission to be about?---Is to go to a ballot for protective action.
PN473
That ballot would be of?---What protective action?
PN474
Who is being balloted?---The workers, employees.
PN475
So they would make the decision?---They would make the decision, they go to the ballot and whatever way it goes I suppose yes.
PN476
The other thing, management is in the practise of obviously calling meetings and explaining how the EBAs going?---Yes. Since the last three to four months, we’ve had quite a step up a bit with management, basically that’s where we are at the moment you know we are sort of stalled at the moment.
PN477
So it would be nothing if the meeting was called tomorrow by management - - -
PN478
THE DEPUTY PRESIDENT: Mr Cooney just watch the leading.
PN479
MR COONEY: Yes, your Honour. You are obliged to attend a meeting put by management during working hours?---Yes, for sure.
PN480
To listen to what’s put to you at those meetings?---Yes.
PN481
Okay.
THE DEPUTY PRESIDENT: Mr Dalton?
<CROSS-EXAMINATION BY MR DALTON [11.13AM]
PN483
MR DALTON: Mr Davison you attached to your statement what you describe as brief notes of meetings and what you understood Mr Jarvis to be saying to you at that particular meeting?---Yes.
**** IAN GEORGE DAVISON XXN MR DALTON
PN484
In your first attachment you’ve got a note of an EBA meeting 14 January
2003?---Yes.
PN485
Which is nearly four years ago?---Yes.
PN486
So you’d gone back to your notes going back nearly four years and you’ve seen this correct?---Yes.
PN487
You don’t have an independent recollection of what he said in that meeting, you are going on these brief notes that you took, that’s right isn’t it?---I remember him standing up and saying we can’t afford to pay you what you want of the current contracts, but the next contract, which is the EBA we are going for now, he said we are quite happy to you know, we’ll look at the next contracts, the pay rises, which obviously they haven’t done, or been able to allowed, I don’t know what they get paid.
PN488
You understood he wasn’t giving you any guarantees, what he was saying is that if you want 36 hours, if you want to get the hours arrangements that apply at those sites, then he’s going to need to negotiate room for that?---Yes.
PN489
With his next contractual negotiations?---Yes.
PN490
And he wasn’t giving you any guarantee that he’d be able to achieve that in his negotiations with the clients?---He said he would allow from his negotiations.
PN491
He would try to?---He says here, but will allow for the next contract.
PN492
I understand what your note says?---They are his exact words, what do you take of that?
PN493
What I’m suggesting to you is that Mr Jarvis gave no guarantee because he’s simply not in a position to give any guarantees to what he can achieve in his negotiations with his clients?---I’m only just going off the words, they are his exact words.
PN494
You are just sticking to your brief notes in your diary?---They are his words, word for word, what can I do, I just write down word for word what he said.
PN495
Well Mr Jarvis will give evidence - - -
**** IAN GEORGE DAVISON XXN MR DALTON
PN496
THE DEPUTY PRESIDENT: I think the witness has answered your question.
PN497
MR DALTON: Yes, all right. You’ll see in your list of demands that the second last dot point, 6 per cent per year pay increase?---Yes.
PN498
This will help us catch up to the other workers?---Yes.
PN499
So I’m right in saying isn’t it that was the full extent of the wage increase, there was no claim contemplated at that stage back in 2003 that you would go straight to the rates that applied at those particular sites?---That was for our annual 6 per cent per year was for the standard Haden EBA, not for the higher industry rates.
PN500
Right do you see where it says, this will help us catch up to the other workers?
---Yes.
PN501
We are working side by side with?---Yes.
PN502
I’m suggesting to you, you are referring there to working side by side with workers who are working at these sites who get higher rates than you for example Esso on and offshore, yes?---Yes.
PN503
So what I’m suggesting to you is in fact you, the wage claim that you contemplated in 2003 was just a straight out 6 per cent per year to try and catch up?---That’s right.
PN504
That’s what that note says?---Yes.
PN505
And it wasn’t a claim that you go straight equalized pay rates with Esso on and offshore people for example, that’s what that note is for?---That 6 per cent is a standard pay increases over the three year period, the bargaining period.
PN506
Yes and there was no – what I’m saying is that that was the extent of the wage claim that you were contemplating in 2003?---Not the extent of our wage claim, our wage claim is up there. The pay rates and the other industry workers, it is written on the top page there, 36 hour a week.
PN507
Right, can you assist his Honour, as to how we would read that, how we would reconcile that note, the second last dot point where you are saying this will help us catch up to other workers?---They were our demands after we’d been to that meeting.
**** IAN GEORGE DAVISON XXN MR DALTON
PN508
No more questions.
THE DEPUTY PRESIDENT: Yes, thank you.
<RE-EXAMINATION BY MR COONEY [11.17AM]
PN510
MR COONEY: One thing your Honour. You were asked about the 6 per cent per year pay increase and catch up, you’ve stated that the pay rate that you were seeking were the ones in line with other workers. I mean that’s a genuinely held claim isn’t it?---Yes.
PN511
That’s all your Honour.
THE DEPUTY PRESIDENT: I’ll just ignore that last one I think Mr Cooney. Yes, thank you Mr Davison you are free to stand down and stay or leave as you wish.
<THE WITNESS WITHDREW [11.18AM]
PN513
THE DEPUTY PRESIDENT: I might call a 10 minute adjournment before – that’s the end of witness evidence on behalf of the union, is it Mr Cooney?
PN514
MR COONEY: Yes, it is your Honour.
PN515
THE DEPUTY PRESIDENT: We might have a 10 minute break before Mr Dalton calls his witnesses.
<SHORT ADJOURNMENT [11.19AM]
<RESUMED [11.31AM]
PN516
THE DEPUTY PRESIDENT: Yes, go ahead Mr Dalton.
MR DALTON: I call Bruce Jarvis.
<BRUCE STEVEN JARVIS, SWORN [11.32AM]
<EXAMINATION-IN-CHIEF BY MR DALTON
PN518
MR DALTON: Thanks Mr Jarvis, could you state for the transcript record your full name and your work address?---Bruce Steven Jarvis (address supplied).
PN519
You are the regional manager for Victoria and Tasmania?---That’s correct.
PN520
You’ve prepared a statement for this proceeding?---That’s correct.
PN521
You got a copy of that in front of you?---I have.
PN522
Are there any changes to make to that statement?---Yes, I wish to make a change to paragraph 14 and remove attachment C.
PN523
THE DEPUTY PRESIDENT: Sorry, you wish to make a change to paragraph 14?---14.
PN524
You wish to remove the bracketed words, attachment C?---Attachment C and delete paragraph 17, the whole paragraph.
PN525
MR DALTON: The whole paragraph?---Yes.
PN526
With those changes is it true and correct to the best of your knowledge?---Yes, it is.
PN527
Including the attachments?---Yes.
I tender that.
EXHIBIT #HADEN 2 STATEMENT OF BRUCE JARVIS
PN529
MR DALTON: Mr Jarvis paragraph 2 of your statement you refer to the company having 36 branches around Australia, employing 480 technicians, most of whom are employed under one of the numerous collective agreements that Haden has negotiated and attachment A has a list of various agreements?---That’s correct.
PN530
Can I ask whether that list, is limited to the air conditioning technicians?---That also includes a number of EBAs that are involved in our construction business.
PN531
When you say the construction business what is that?---Haden also as well as having service technicians, we also have a number of construction businesses within each State that have various constructions type awards and clauses into them.
**** BRUCE STEVEN JARVIS XN MR DALTON
PN532
Can I take you to attachment A, it might be easier if you follow this file which has the tabs in it?---Right, thank you, yes.
PN533
If you could assist us by identifying which agreements relate to the type of business that is the subject of this dispute, that is the air conditioning?---The services yes, okay?
PN534
Yes?---It would be the Haden Sydney the top one, the Haden Sydney enterprise agreement.
PN535
Yes?---Sorry, Haden service department New South Wales.
PN536
Sorry so not the first one?---Haden Sydney enterprise agreement I believe - - -
PN537
You are not sure?---No I’m not 100 per cent sure, but I’m pretty sure that’s a service one.
PN538
Pretty sure that’s service, the next one?---The next one is Haden service department Newcastle, is a service one, Smith Brothers service.
PN539
Smith Brothers yes?---Service, yes. Haden not sure about the next one, Haden service on site construction is not one. Haden service South Australia is one.
PN540
The next one Haden service South Australia?---Haden mechanical service is the Melbourne one, which was signed not so long ago.
PN541
Yes?---The Gippsland is the one after that, which is the one we are currently sorting out.
PN542
Negotiating, yes?---The next one is out, Haden service agreement Tasmania.
PN543
Yes, that’s the Haden service CEPU enterprise agreement 2006 to 2009, the next column says its Tas?---Yes, that’s it.
PN544
That is under negotiations?---That is under negotiations, yes.
PN545
Next?---Haden engineering employee collective agreement Western Australia. I’m not sure about the Queensland ones.
**** BRUCE STEVEN JARVIS XN MR DALTON
PN546
All right now if I can take you to the next page – sorry beg your pardon, on that page, if you go about half way across the document you’ll see there’s columns that say jurisdiction and type?---Yes.
PN547
The reference to Federal, is that a federal certified agreement?---Yes.
PN548
LJ, that’s the provision for a union agreement under the Act?---Yes.
PN549
The next page are those the percentage increases in the various agreements that you’ve listed?---They are to the best of my knowledge, yes.
PN550
The rates for on call allowance are in a column there as well?---Yes.
PN551
Paragraph 6 of your statement?---Yes.
PN552
You list what you recall being the various claims made by the CEPU at your initial meeting in August 2005, can I draw your attention to the third dot point, you mention a 36 hour week, is that for all employees down at Gippsland or is that limited to employees who work at specific sites?---When we started the negotiations it was made clear to the union that Haden would not have a 36 hour week in its EBA for the business and that we would be looking at 38 hours, and that we were prepared to negotiate various conditions as per some of the sites at the - - -
PN553
Yes, I’m not asking about the company’s response?---Sorry.
PN554
I’m asking about what you understood the CEPU claim back in August 2005, you’ve listed in one of the claims at that time being a 36 hour week. I wanted to clarify whether that claim was in respect of all Haden Gippsland employees regardless of where they work?---No, it wasn’t.
PN555
No it wasn’t?---No.
PN556
What did the CEPU claim it for?---For the specific sites.
PN557
Yes. At what point in time if you can think, throughout these negotiations that you’ve described in the statement, at what point in time, if any, did you understand exactly what the CEPU were seeking both in respect of the shall I describe it as the main agreement and in respect of the site specific rates and or allowances and hours of work?---It wasn’t until after the August meeting and following on from that that they actually put the four different EBAs together as their claim for specific sites.
**** BRUCE STEVEN JARVIS XN MR DALTON
PN558
Well let’s deal with it at that time?---Yes.
PN559
When you were given the four EBAs did you understand or did the CEPU make it clear to you, what exactly what they were seeking?---Exactly what they’ve been seeking, hasn’t been clear up until about less than two weeks ago.
PN560
Why do you say that?---Because within those EBAs there was a number of different conditions and a number of different things that did not apply to what we negotiated previous to that and a number of things that were never even discussed that were all of a sudden just thrown in.
PN561
Once they were thrown in and given to you do you recall having any discussions with the CEPU about those different terms and conditions?---After we looked at all the stuff they’d thrown in, we tried to meet with them and get them to adjust their position and it didn’t happen, so not much.
PN562
Now you say that 90 per cent of the work that Haden does down in Gippsland is at these various sites, these four sites?---That’s correct.
PN563
Are you able to give his Honour an indication of the pattern of work down there based on previous years, so how many hours – what proportion of man hours are allocated to each of those sites?---As stated your Honour a large part of this business is on these particular sites that have been mentioned. Most of the overtime and that is built on that site 10 per cent of the business is built around commercial shopping centres, buildings and other relevant things like that.
PN564
But if we focus on the 90 per cent for the moment?---Yes.
PN565
Are you able to give us a broad estimate of which sites, or what share of 90 per cent each site demands?---I would say Esso would be 20 per cent, 60 per cent would be on the power industry and the remainder on the paper mill.
PN566
THE DEPUTY PRESIDENT: Sorry that’s an assessment based upon the history of labour usage from Haden’s on those particular sites?---That’s correct your Honour.
PN567
MR DALTON: The agreement that you had that applied down in Gippsland the agreement reached in 2002, how long have you been doing this type of work down in Gippsland?---We actually took the company over back in 2001 and actually bought the company, it was the York company before that. They had some of those contracts probably two or three years before that.
**** BRUCE STEVEN JARVIS XN MR DALTON
PN568
You give evidence in your statement about calculations of the cost impact to the business and you say one of the methodologies that you use was to work out the sort of man hours that would be applied to the sites?---Yes.
PN569
How reliable is that as a prognostication of the future, and how did you assess it?
---We came about the assessment by looking at what we’d done last year, as far as man hours, overtime hours, and then did
the calculations on the figures from last year.
PN570
How reliable is the previous 12 months as an indication of what will be done in the next 12 months?---It’s pretty accurate.
PN571
Why do you say that?---Because the amount of work even though it goes up, constantly if you were to do a three or four year snapshot would be fairly evenly spread out over the sites over a period of time.
PN572
All right what’s the typical period of time for contracts with these clients?---Three or five years.
PN573
THE DEPUTY PRESIDENT: They are hourly rate contracts, presumably, are they?---Yes, they are your Honour.
PN574
MR DALTON: In discussions with the union in October and November you say that you said, look this is the sort of cost impact we are dealing with. At any stage in your discussions with Mr Jacobsen or Mr Cooney or anyone else from the CEPU, did they dispute the methodology or the actual calculations that you’d come to?---Mr Cooney asked the question on how the wages was calculated and it was explained to him and he was then appeared in agreement.
PN575
Has the union put forward any figures to counter your calculations based on the hours that have been worked?---Nothing.
PN576
THE DEPUTY PRESIDENT: I think there was some evidence given Mr Jarvis by the union that they were denied access to certain material that could have allowed them to do some calculations?---Your Honour the only thing that they were denied was the contract hourly information, because the union had been ringing up our clients and talking to them about their contract and my concern is if that information was to be given to the union that might go between different contractors. The contracts are obviously at different rates.
**** BRUCE STEVEN JARVIS XN MR DALTON
PN577
But it would be true is it not, that being denied them, they would not have been in a position to come to a conclusion as to whether your percentage figures were right? Your percentage figures must have been based upon your contract price to those clients, were they not?---Your Honour, the percentage figures were based on the hourly rates currently in existence and the profitability of the business was explained to the union.
PN578
I understand that, but absent those numbers that you say were perhaps quite legitimately denied the union, they would not have been in a position to confirm for themselves, whether your percentage figures were in fact correct?---Your Honour my belief the percentage figures are wage based.
PN579
Yes, but they must be based upon the rate at which you charge out your labour?
---Okay, yes they are.
PN580
If the union is not privy to that charge out rate it is not possible for them to make the calculation and confirm the figures that you gave, is that correct?---No, your Honour the only thing they couldn’t calculate by that is the profitability that exists.
PN581
Right thank you.
PN582
MR DALTON: The costings that you talk about?---Yes.
PN583
What are they based on? What information did you base those calculations on?
---We based the calculations on what we had done in the last 12 months.
PN584
When you say what we had done?---As far as overtime, what sites, by number of employees, broke it down into x amount of employees working on Esso, x amount working in the power, et cetera, et cetera and worked it on that, and that’s how we came to the calculations.
PN585
So you came to the cost based on existing rates?---On existing rates, based on sites, based on time.
PN586
Yes and you then put the figures that the CEPU is claiming?---Into that and said well that will increase that to that and that’s how we came to that.
PN587
Did the union ever ask you for that source of information that gave you those calculations?---The source of the information, sorry?
**** BRUCE STEVEN JARVIS XN MR DALTON
PN588
Did they ask you for – or did you provide the man hours and - - -?---We showed them the hours, the overtime hours worked, how we calculated it.
PN589
You provided them with that information?---Yes, we gave them that information, and also the number of hours total for the business.
PN590
As to the profitability, what information did you communicate to the union?---The union were told that the business was making 12 per cent even.
PN591
Yes and the union then asked you to provide them with the contracts, is that correct?---They asked if they could have the contract information, yes.
PN592
You said no to that request?---Yes, that’s right.
PN593
You say in your statement at various stages and in particular at paragraph 33 on 26 October meeting that the union claims would send the company broke?---Yes, it wouldn’t send Haden itself broke, because it’s a big company and it’s national. It would actually mean the contracts in the Gippsland business would be unsustainable and that would jeopardize that particular business.
PN594
Did you ever get a response from the CEPU to that particular statement?---Once it was stated to me that’s not our problem and you’ve got to worry about that.
PN595
Who gave you that?---Mr Jarvis.
PN596
Mr Jarvis?---Yes.
PN597
There’s been evidence given by a Mr Ian Davison, you know him as one of the employees down at Gippsland?---Yes, I do.
PN598
He has made notes of meetings, one note is what he describes as an EBA meeting on 14 January 2003 and his evidence is to the effect that his note and his recollection is that you said, that you can’t afford to pay what the guys down there wanted under the current contracts that you have down in Gippsland, but that you will allow for their claims when the contracts get renegotiated. Can you respond to that, firstly confirm whether you went down there and spoke to the employees in January 2003, and if so what did you say?---I actually – I did probably go down and speak to the employees in January 2003, that would have probably signed the current EBA, or the preceding - - -
**** BRUCE STEVEN JARVIS XN MR DALTON
PN599
Preceding the 2002 2005 EBA?---Yes and they were disappointed that they didn’t get some of the conditions they were seeking through that EBA.
PN600
Yes?---And my response would have been - - -
PN601
I’m just asking for if you can remember what your response was or as best you remember?---As best I remember my response was if we were to look at all the other things that you have mentioned, we would need to increase the contract rate to facilitate and getting better contract rates and conditions to facilitate what you are looking for in the future.
PN602
Did you ever give any indication that that’s in fact what you would do? Did you give any guarantees or assurances to that effect?---I can’t guarantee something that I can’t - - -
PN603
THE DEPUTY PRESIDENT: That wasn’t the question.
PN604
MR DALTON: Just answer my question?---No, I didn’t give a guarantee, no.
PN605
Well Mr Davison’s recollection is that you did, what do you say to that?---I say I didn’t guarantee.
PN606
It was suggested in evidence from the CEPU through Mr Jacobsen that the costings that you did, apply to the 36 hour claim to all work done down in Gippsland is that correct?---We worked it on the 90 per cent because that was the majority of work done on those sites.
PN607
Yes, no more questions.
THE DEPUTY PRESIDENT: Mr Cooney?
PN609
MR COONEY: If I could first take you to Mr Davison’s statement in particular his notes of 14 January 2003. I take it you wouldn’t have in your possession any notes from those meetings or?---I – without going back through the archive files, probably not, no.
PN610
You said in response to the claim of the 36 hour week that you couldn’t afford to do that on the basis of the contracts that were currently standing that they would need to be renegotiated?---That’s correct.
**** BRUCE STEVEN JARVIS XXN MR COONEY
PN611
The employee response to that was – well the agreement that ensued was a 38 hour week agreement generally?---Sorry?
PN612
The agreement that consequently ensued from that meeting included a 38 hour week, the employees didn’t pursue the 36 hour week?---They were already signed up to the previous EBA saying that was a 38 hour week.
PN613
Okay the agreement currently covers employees in Tico Services Pty Ltd trading as Haden and CEPU enterprise agreement 2002 to 2005?---That’s correct.
PN614
Could I ask the witness be shown a copy of the agreement I only have one? What’s the date that that agreement was certified by Senior Deputy President Williams? It’s on the front page?---It’s a bit hard to read.
PN615
It’s up the top?---Up the top, sorry, 4 March.
PN616
2004?---Yes.
PN617
So that’s 14 months after the meeting?---After that.
PN618
Yes and that agreement contains a 38 hour week, the point being the employees didn’t pursue the 36 hour week on the basis of the cost component to the company presumably?---What happened with that was the fact that we had both Melbourne and Traralgon business on the one agreement and one of the problems with that for the Traralgon business as far as the employees were concerned was the fact that Melbourne had the numbers and Traralgon didn’t so.
PN619
While you’ve got that agreement with you and I think it’s clause 6 that refers to relationship to the federal awards?---Clause 7.
PN620
Clause 7 and the effect of that clause is that it incorporates the terms of the Southern States, Plumbing Industry Southern States Award where it’s not inconsistent with the agreement, is that correct?---Yes.
PN621
Thank you, so any subsequent agreement the union would seek to include award conditions in it, if I can put it like that?---So what you are saying to me is the Southern States Award, applies in this one?
PN622
Yes it applies to that agreement?---This one?
**** BRUCE STEVEN JARVIS XXN MR COONEY
PN623
Yes?---Yes.
PN624
If I could take you to paragraph 12 on page 3 of your statement?---Yes.
PN625
You say there that with the Melbourne based employees you did a non union collective agreement?---That’s correct.
PN626
So you are well aware that there’s an option to do a non union collective agreement with your employees if the employees so desire?---That’s correct.
PN627
Can I take you to the previous page, page 3 clause 8. You say on about the fourth line down, but the company would not pay equalized trade rates because our employees were mobile technicians not fixed to one particular site. Could I ask how many of your employees are trade qualified to your knowledge?---To my knowledge well apart – well I’m not counting apprentices?
PN628
No?---Okay, 14.
PN629
If I can take you to page 7 of your statement?---Yes.
PN630
At paragraph 28 you acknowledge that a bargaining period notice was served?
---That’s correct.
PN631
If I could take you to paragraph 32 which relates to attachment I to your statement and you say there that there were five EBAs from our five major clients was provided to you?---Yes.
PN632
If I take you to the next page of the statement, page 8. You state there that you met there on 26 October with Mr Jacobsen and Mr Cooney and went through the respective positions. Could I ask that the witness be shown the draft version of the document that was dated 24 October 2006.
PN633
THE DEPUTY PRESIDENT: Is that the one we marked Haden 1? 24th October, is that the one?
PN634
MR COONEY: Yes, that’s the one.
PN635
THE DEPUTY PRESIDENT: Yes, that’s the one marked Haden 1.
**** BRUCE STEVEN JARVIS XXN MR COONEY
PN636
MR COONEY: Is that the agreement that was discussed that day at the union office, do you recall?---I believe so.
PN637
That agreement contains a base wage rate generally for the Gippsland area and then four appendices?---Yes.
PN638
That was in response to your letter of 20 October to the fact that the union had submitted five EBAs?---This is the document that came after I got the copy of the relevant EBAs for the four sites?
PN639
Correct?---Yes.
PN640
It represents somewhat of an attempt to amalgamate the EBAs?---Yes.
PN641
Again at paragraph 33 and I take you to attachment J of your statement you sent a letter to the union summarizing what you understood the union claims to be?
PN642
THE DEPUTY PRESIDENT: Sorry which – what are you looking at?
PN643
MR COONEY: This is attachment J sorry?---Yes, that’s correct.
PN644
At the second paragraph down, you state:
PN645
That while this meeting assisted me in obtaining a greater understanding of our respective positions and your claims I wish to summarize these as follows.
PN646
Then under CEPU in the table, there’s a 36 hour week increases by 16.3 per cent plus 13 per cent over three years in line with other employees and trades to change to other employer’s rates?---That’s correct.
PN647
So at that time we had that understanding. Can I take you to page 8 of your statement and at paragraph 35, 1 November you received a letter from the union and it’s marked attachment K8?---Yes.
PN648
In that letter there are the two sets of three dot points and I will go to the second set at point 1 the union states that it will accept a phasing in of a 36 hour week over the life of the agreement, is that correct?---I can’t see where you are pointing out.
**** BRUCE STEVEN JARVIS XXN MR COONEY
PN649
Sorry, it’s a letter headed attachment KA?---Yes, I’ve got KA.
PN650
It’s under the Sydney to Ravel sections?---Yes.
PN651
About the middle of the page is says:
PN652
Below is a union clarification of the union’ stance on these issues you detail in your letter.
PN653
At 36 hours per week it says:
PN654
The union considers that Haden’s undertook to introduce the 36 hour week during the last round of negotiations.
PN655
Then it goes on to say:
PN656
At the meeting on Thursday the union stated that it will accept a phasing in a 36 hour week over the life of the agreement.
PN657
Is that correct?---It states it there, but the statement that was made at the meeting was 36 hour week now, 35 hour week in one year’s time.
PN658
On the record there you have it stated that the union would accept a phasing in of a 36 hour week over the life of the agreement?---Yes.
PN659
Thank you and that represents a change from the document Haden 1 in that that introduced a 36 hour week across the board straight away?---Yes.
PN660
At point 2 of that attachment it says:
PN661
Increases by 16.3 per cent plus 13 per cent over three years in line with other employees, eg Esso.
PN662
Now then it goes on to say:
PN663
The position of the union put in meeting on Thursday is that the union will strongly pursue the wage increases in the draft collective agreement and that Haden examine the staggering of the proposed increases over the life of the agreement.
**** BRUCE STEVEN JARVIS XXN MR COONEY
PN664
Again that represents a movement from the document marked Haden 1?---No.
PN665
Why not?---Well my understanding of this is 16.3 per cent up front for increases in allowance and the only staggering is that 13 per cent over three years which is the four and five.
PN666
It says clearly there that the 16.3 per cent plus 13 per cent over three years divided up it giving the option to Haden to stagger those increases which you’ve given previous evidence that one of the main stumbling blocks is in relation to contracts that you have locked in. This would cater to an extent for the renegotiation of contracts but it represents a movement doesn’t it from the document marked Haden 1?---Yes.
PN667
If I could take you to paragraph 36 of your statement and that refers to attachment L?---Yes.
PN668
Now this is under the hand of Peter Selbersher, the national human resources manager?---That’s correct.
PN669
Acknowledging receipt of the letter dated 1 November 2006?---Yes.
PN670
It then states that the union claims there have been ambit claims and specifically in relation to a 36 hour week increases of 16.3 per cent, plus 13 per cent over three years and use of comparable trade rates?---Yes.
PN671
It then goes on to state that Haden would require 21 days to undertake this analysis?---Yes.
PN672
Could I put it to you that there’s never been a response to the union letter marked attachment KA, in regards to the staggering in of the 36 hour week, or to the phasing in of the proposed increases?---I would argue that the letter marked attachment L sent by Peter Selbersher was in response to your 1 November letter.
PN673
It acknowledges it’s in response but it makes no comments in regard to the union suggestion of phasing in of the 36 hour week or the staggering of the pay increases?
PN674
THE DEPUTY PRESIDENT: Is that a question Mr Cooney?
**** BRUCE STEVEN JARVIS XXN MR COONEY
PN675
MR COONEY: It is a statement, question seeking a response. Again there’s an attachment marked M, Haden letter of 21 November which again makes no response to the union suggested union position.
PN676
THE DEPUTY PRESIDENT: Yes, well don’t make submissions on it, you are cross-examining the witness at the moment, ask him a question or move on.
PN677
MR COONEY: Yes, your Honour.
PN678
Has there been any response from Haden in regard to those specific suggestions of the union?---I can’t – from that letter I can’t see any response directly to that part you pointed out.
PN679
Again on page 8 at paragraph 38?---Yes.
PN680
The union refers to the meeting of 21 November 2006?---Yes.
PN681
In response has written a letter setting out its position, again reiterating a 36 hour week, that there be one agreement, redundancy and as a follow up to that letter there was a wage rates with respect to Haden’s remark, marked attachment O which contained base wage rates and allowances?---Yes.
PN682
If I could take you to page 10 of your statement paragraph 46. You state there that Haden has contracts with its oil, power and paper clients which fix prices for each of the agreements?---That’s correct.
PN683
At a meeting on Friday at the Haden’s offices was a request made for access to those contracts?---That’s correct.
PN684
The response from Haden was - - -?---Was that it was in confidence.
PN685
Commercially confidence?---Commercially confident.
PN686
Have these contracts ever been made available to either the unions or the employees?---Not to my knowledge.
PN687
One of the points in argument here and it’s not denied by the union is that these are healthy pay increases. I would ask that how does Haden actually set its wages, set its remuneration levels? Is it a percentage of revenue, income or profits? Or is it as we’ve been saying the market rate?---We look at what we currently pay and take into a fact CPI and then look at what other movements are happening in the industry with our competitors and then based on that.
**** BRUCE STEVEN JARVIS XXN MR COONEY
PN688
Who are your competitors in the - - -?---The likes of Trane, Carrier, Coombs, likewise air conditioning companies.
PN689
You are the regional manager Victoria Tasmania for Haden Engineering?---That’s correct.
PN690
So you’d have responsibility for negotiating contracts with the likes of Esso, APM and other clients, or you would be heavily involved at least?---That would be correct.
PN691
You would also have responsibility for the viability of Haden in Victoria and Tasmania?---That’s correct.
PN692
As such you’d need to look at financial reports, profit loss, balance sheet, cash flow statements?---Yes.
PN693
In looking at those particular documents it would be difficult would it not to make a judgment on the financial performance on Haden if it was only – if you were only to go to the profit and loss and the revenue side or to a cash flow statement and look at the incoming cash side, would it not, it would be impossible?---Well you take all things into consideration in business.
PN694
Could I ask what you understand what this application is about?---It’s for the employees to take a ballot to take protective action to push their claims for the conditions they want within their EBA.
PN695
But it’s not to directly have industrial action?---That’s for them to have the right to take protective action.
PN696
To have a ballot?---Yes.
PN697
Can I ask if you understand that the order that the union is seeking would see the ballot conducted I think on Thursday or Friday, but that Haden management would be well within it’s right to speak to the employees prior to the ballot?---I wasn’t aware that there was any right denied or either way so.
PN698
I tell you, you can?---Yes.
PN699
That these matters can be explained to the employees - - -
**** BRUCE STEVEN JARVIS XXN MR COONEY
PN700
THE DEPUTY PRESIDENT: Let’s not have a discussion about the negotiation Mr Cooney just stick to the - - -
PN701
MR COONEY: It is relevant your Honour.
PN702
THE DEPUTY PRESIDENT: It may well be, but it’s not relevant to your cross-examination of this witness.
PN703
MR COONEY: Could I ask why you oppose this application?---We oppose the application because we believe we negotiated along in good faith to the Haden agreement up until August and when all the other matters were thrown into the thing without negotiations the company felt that the claim was excessive in the ambit and there has been little movement, so we are against the application.
PN704
Up until August was prior to the bargaining period being lodged, is that correct?
---That’s correct.
PN705
Since then there’s been a number of negotiations?---Yes.
PN706
Thank you, your Honour that’s all.
PN707
THE DEPUTY PRESIDENT: Yes, I just have one question and you may want to follow it up, Mr Cooney. There was evidence given as I recall Mr Jarvis by the union that the union had indicated to you at various points during negotiations that they were seeking to include prohibitive content in any agreement that they finalised with the company. They said in evidence, I think Mr Jacobsen said in evidence, there was even occasions when certain content was removed with the mutual agreement of the parties on the basis that they came to some – the parties came to some conclusion about it being prohibitive content, is that correct?---That was usually the case, your Honour. We decided it was - - -
PN708
So it is correct to say that the union have indicated to you that they do not seek to have prohibitive content in an agreement?---That’s correct.
PN709
MR COONEY: Further to that, has the union also indicated to you that we seek to have a code compliant agreement?---I believe so yes.
PN710
Thank you.
**** BRUCE STEVEN JARVIS XXN MR COONEY
PN711
THE DEPUTY PRESIDENT: Thanks Mr Cooney, Mr Dalton?
PN712
MR DALTON: No re-examination your Honour.
PN713
THE DEPUTY PRESIDENT: Well you got off lightly Mr Jarvis, thank you for your evidence, you can stand down and given that five minutes before I intended to adjourn for lunch, we will adjourn for lunch five minutes and hear from the parties by way of submission at 1.45 pm.
<THE WITNESS WITHDREW [12.23PM]
<LUNCHEON ADJOURNMENT [12.23PM]
<RESUMED [1.47PM]
PN714
THE DEPUTY PRESIDENT: What I propose to do is hear you both essentially as to the objections that have been taken to the order being issued and I will then adjourn briefly and consider that circumstance and if possible provide you with a decision on that matter. In the event that it’s not the decision that the CEPU wants then that’ll be the end of things for today, but in the event that I decide that an order should issue I will reconvene to discuss the form of the order and give an opportunity for anybody that wants to say something regarding that. Is that a suitable course to the parties?
PN715
MR COONEY: Yes, your Honour.
PN716
MR DALTON: Yes, your Honour.
PN717
THE DEPUTY PRESIDENT: Yes. That saves you going into the administrative aspects of this in your submissions now. You can simply limit yourself to the basis for the objections that have been taken. Go ahead, Mr Cooney.
PN718
MR COONEY: Thank you, your Honour. I think the applicant’s submissions that have been previously provided to the Commission?
PN719
THE DEPUTY PRESIDENT: Yes, they have.
PN720
MR COONEY: Thank you, your Honour.
PN721
THE DEPUTY PRESIDENT: And presumably they have been provided to the other end of the table?
PN722
MR COONEY: Yes. Your Honour, we’d say this is an application under the Workplace Relations Act pursuant to section 451 and it’s intended that it gives the employees at the Hayden site located in Gippsland the opportunity and chance to determine whether proposed industrial action - - -
PN723
THE DEPUTY PRESIDENT: Excuse me, Mr Cooney. I’d ask if you leave that door open please. It’s a public hearing. If there is any noise out there I'll have my associate take care of it by screaming and yelling at the people that are making the noise.
PN724
MR COONEY: Sorry, your Honour. Haden’s employees engaged in Gippsland to give them the chance and opportunity to determine whether they support proposed industrial action. It’s for those employees to make that choice. The application made under Part 9 Division 4 of the Act and the object of this division is set out in section 459. The object of this division is to establish a transparent process which allows employees directly concerned to choose by means of fair and secret ballot whether to authorise industrial action supporting or advancing claims by organisations of employees or by employees. Your Honour, the explanatory memorandum to this section of the Work Choices Act is in item 1393.
PN725
It states that the provisions are designed to be facilitative, that is to provide a means for accessing protected action and not prohibitive. That is to outline the circumstances in which such action is not available.
PN726
THE DEPUTY PRESIDENT: Mr Cooney, with the greatest respect I have read the submissions so there’s no need to go over those necessarily. If there are points that you want to reiterate or, sorry, to highlight or provide further substance to, then by all means do so, but you can take the submissions themselves as read.
PN727
MR COONEY: Okay. Thank you, your Honour.
PN728
THE DEPUTY PRESIDENT: Essentially if it’s any assistance to you,
Mr Cooney, and I’ve got no doubt that Mr Dalton will correct me if this is incorrect, but it seems to me that objection is taken
basically on the ground that the union was not genuinely trying to reach agreement and there are two strings to that particular bow.
The first is that the union could not have been genuine because it presses a claim for prohibited action within the agreement that
it seeks and the second string is that in the circumstances the union’s claims on the company are so outlandish as to render
the circumstance of the union not being genuine in putting those claims. Does that essentially summarise it, Mr Dalton?
PN729
MR DALTON: Yes, your Honour.
PN730
THE DEPUTY PRESIDENT: Yes. So perhaps if you can just address those two aspects in your submissions.
PN731
MR COONEY: In regard to prohibited content I think it’s been the evidence of both Mr Jacobsen and Mr Jarvis and I’m sure from the bar table that the union doesn’t seek an agreement with prohibited content. I think the only matter that was drawn to in one of the draft agreements was where there was a right of entry clause which said that the right of entry shall be in accordance with the Act. Now, under prohibited content it talks about the matters which are not allowed to be included in an agreement and under the regulations 8.5 at (g), (f) and (2):
PN732
The rights of an organisation of employers or employees to participate in, or represent an employer or employee bound by the agreement in, the whole or part of a dispute settling procedure, unless the organisation is the representative of the employer’s or employee’s choice.
PN733
And:
PN734
The rights of an official of an organisation of employers or employees to enter the premises of the employer bound by the agreement.
PN735
Now, that right of entry clause didn’t seek to go beyond that. As I said it was in terms of the Act, but for all intents and purposes it will be removed from subsequent agreements and I think that - - -
PN736
THE DEPUTY PRESIDENT: Well, just on its face, Mr Cooney, if that is the clause to which the company refers, and I’m assuming that it is although they haven’t said so, I’m not entirely convinced that it is a clause that deals with the rights of an official of an organisation of employers or employees to enter the premises. It seems to be a clause that deals with an agreement between the parties to comply with the requirements of an Act so that is something that I'll hear from Mr Dalton on in any event. But on its face it seems to me that it’s at least arguable that it doesn’t run foul of the provisions in that it may not deal with the prohibited subject matter.
PN737
MR COONEY: Your Honour, notwithstanding and as these are draft documents the union would be removing that clause as we have done in our other agreements.
PN738
THE DEPUTY PRESIDENT: Yes, all right.
PN739
MR COONEY: In regard to whether the union was genuinely negotiating the union we would say since the lodging of the bargaining period it has provided the company with initially five agreements. After meetings that it then was negotiated to be a single agreement containing four appendices with site specific pay rates at the request of the company. After further meetings those agreements were then renegotiated so that there was one rate of pay which contained allowances. Again emphasising that the agreements themselves are drafts in fairly rough format, but at least as far as the rates and the allowances for those sites, that is the union position.
PN740
The union in negotiating with the company offered to phase in the hours of work being 36 hours and the pay rates over the three year period. These are long standing claims that the employees have had. The evidence of Mr Davison, the union doesn’t deny that they are healthy claims, but they are no way ambit claims. These are amounts that are sought by the union and the union seeks to push for in negotiations. If I was to go to the decision of Commissioner Eames print 974415 and I don’t know if your Honour’s got a copy of that.
PN741
THE DEPUTY PRESIDENT: Sorry, what is the print number?
PN742
MR COONEY: Print PR974415.
PN743
THE DEPUTY PRESIDENT: Was that something that you provided to me?
PN744
MR COONEY: I’ve had the opportunity of speaking earlier to the other side and it’s the decision that deals with ambit and genuineness as to a claim and in that the Commissioner makes a - - -
PN745
THE DEPUTY PRESIDENT: Yes. Is it something, have you provided it?
PN746
MR COONEY: It’s not something not that I’ve provided and not that I was going to rely upon.
PN747
THE DEPUTY PRESIDENT: No, what I’m asking at this stage is have I got it before me either in your material or in - - -
PN748
MR COONEY: Sorry, it’s in the materials of cases that’s been provided.
PN749
THE DEPUTY PRESIDENT: Right.
PN750
MR COONEY: Tab 1, your Honour.
PN751
THE DEPUTY PRESIDENT: In the respondent’s material? That’s the Visy Pak matter, yes I’ve got that.
PN752
MR COONEY: Yes, sorry. Your Honour, if I take you to paragraph 22 of that decision. Firstly we would say that the Commissioner was dealing with matters of ambit which we say don’t exist in this situation. At paragraph 22 he states:
PN753
It was also submitted that the Applicants have not made any assessment of the industry in which Visy Pak operates, and haven’t costed their claims, as Visy Pak had.
PN754
Your Honour, we would submit that we have to the best of our abilities made an assessment of the industry. The union requested the revenue side of the employers being the contractor with the various companies and they were denied as commercial incompetence. In his evidence Mr Jarvis stated that he was aware that the union had tried to access the details of those contracts through other means, albeit unsuccessfully and we would submit that the next best alternative for the union was to look at comparable agreements in the Gippsland area and being for trade rates and that was what we could base our claim upon given that there was no other material to do so. At paragraph 25 of his decision the Commissioner states:
PN755
The log of claims was extravagant and a “sham” claim. It was not genuinely made submitted Mr Wood, and it was put that Visy Pak is not saying agreement is not possible.
PN756
Again we would say that we have not made a sham claim. We have made a genuine claim. We recast it twice, first in the form of appendices and then by converting that into allowances and that we’ve been responding to the requirements or to the requests of Hayden’s. At paragraph 27 of the decision the Commissioner states:
PN757
I agree with the submission of Mr Wood that s.461(1)(a) places the onus on Applicants to demonstrate that they have genuinely tried to reach agreement with the employer. There is no like onus on the employer.
PN758
Then he then goes on to state at clause 28:
PN759
Mr Terzic is correct, in response, to state that the conduct of the employer is a relevant consideration for the Commission when dealing with applications such as this one.
PN760
We would say that we have been denied access to the information from the company which would enable us to formulate the claim and further that when we have sought to try and vary the claim there has been no response from the company, that being the offer to stagger those increases in and to open up that dialogue. At paragraph 33 the Commissioner states:
PN761
An original claim was made, one which I described in proceedings, as fanciful. 20 percent increase per year is in my view a fanciful claim.
PN762
We would submit that with all due respect the Commissioner offers no basis for why he says 20 per cent is a fanciful claim. He hasn’t drawn upon any authority in making that decision. He then goes on to say at paragraph 34:
PN763
The claim has now been reduced to 10 percent per year; a level of which I remain of the view, is fanciful.
PN764
Again there is no basis as to how he reached that decision. There is no disclosed reasoning. It simply seems to be a personal view. We would say that we have put to the Commission the reasoning about how we reached our claim and that was done in a genuine and valid manner. At clause 37 he states:
PN765
Genuine bargaining, in my view, particularly as negotiations have now been afoot for 6 months, should have produced a more realistic wage movement on the part of the Applicants, and should have seen substantial evidence, of the movement in negotiations related to the conditions to be contained in a new agreement, by now. I have no such evidence.
PN766
We would submit that that’s contrary to the authority of Marshall J in AMIEU v
G & K O’Connor decision. Has your Honour - - -
PN767
THE DEPUTY PRESIDENT: I’m familiar with it, Mr Cooney.
PN768
MR COONEY: Where he talks about bargaining in good faith does not require a willingness to make concessions consistent with adopting a hard line, but does require that you seriously consider the opponents. He then goes on to state at clause 39 that:
PN769
The alternative would have been that an Agreement may be close, but not yet in place.
PN770
We would say that nowhere is this a requirement in the Act that a ballot can be initiated for industrial action. It’s simply again a personal view and doesn’t rely on any legislative authority. At paragraph 44 on page 6 of his decision the Commissioner says:
PN771
I strongly encourage the industrial parties to now genuinely try and reach an agreement on matters arising from the Applicant’s claims.
PN772
THE DEPUTY PRESIDENT: I’m sorry, Mr Cooney. It may not be necessary for you to go through a full scale appeal of Commissioner Eames’ decision. I’m not entirely sure what part that Mr Dalton is going to rely upon. He, as you, would be aware that I am not bound by it in any event, but it may be worthwhile listening to what Mr Dalton has to say and which part he intends to rely upon and then you can respond to that in your submissions in reply rather than go through the entirety of what you consider to be the high points and low points of that decision.
PN773
MR COONEY: Okay. Fundamentally, your Honour, we would say that to deny this application would be to deny the employees their choice and option of preference of whether they wish to take industrial action or not. It’s a two step process. It’s not a vote to take industrial action tomorrow. Sorry, your decision is not to indicate that there be industrial action tomorrow, but simply to give the employees the choice about whether they intend to take industrial action. The application is not to have protected action but to give the right to employees to decide if they want to take protected action.
PN774
We’d also say at this stage that the Commission doesn’t have to decide the economic merits of the claim, but simply that the proper process of Work Choices - emphasising choices - legislation have been followed and that there are merits for the claims that have been sought in the market place and then that’s where the genuineness rests, that these are amounts that would be borne out in the market place. And just finally I’d say that in the event that the industrial action was to inflict economic damage upon the company there are other options available to the company and to the Commission under the bargaining provisions of the Act for that industrial action to be terminated and we would say because those provisions aren’t in this part of the Act it’s not contemplated at this stage that they’re consideration for the Commission to take.
PN775
It turns out that Hayden is suffering sufficient economic damage. They are free to make application to the Commission to have the bargaining period terminated on that basis and any industrial action to cease. Thank you, your Honour.
PN776
THE DEPUTY PRESIDENT: Thanks, Mr Cooney. Mr Dalton.
PN777
MR DALTON: Your Honour, I'll deal firstly with right of entry. The union’s response to the point is - I'll deal firstly with the union’s response and then I'll deal with your Honour’s comments in relation to that question as well.
PN778
THE DEPUTY PRESIDENT: Yes.
PN779
MR DALTON: The union’s response firstly is that its negotiation position has always been that any prohibited content be removed from the agreement. The difficulty with that response is that it’s not an answer for two reasons. The first reason is that’s not in fact what occurred. Attachment D is their July draft. Clause 14 has a right of entry provision in it. And exhibit Hayden 1, which is the union’s draft late October 2006, continues to have that provision in it. So the facts do not support that answer. The union has in fact continued to seek a provision that deals with right of entry. I'll address your Honour on that question later.
PN780
But subject to my submission being accepted that that provision in turn deals with a prohibited matter then in my respectful submission it’s not an answer for the union to say well, our position’s been that prohibited content is to be removed in circumstances where they haven’t in fact done that in relation to right of entry.
PN781
THE DEPUTY PRESIDENT: Well, how would you say that squares with the Full Bench’s decision in Tyco, Mr Dalton?
PN782
MR DALTON: Well, your Honour, it depends on - in my respectful submission it’s going to depend on how you construe the particular provision that’s in the agreement and again that’s something that - - -
PN783
THE DEPUTY PRESIDENT: Yes, but the point I’m making is that the existence of what you allege to be a prohibitive provision which is prohibited under the regulations came to light firstly by, in this Commission anyway, by means of a fax that was sent late yesterday. Presumably that’s the first the union also heard of it being a prohibited provision also from the company. Is that correct?
PN784
MR DALTON: Well yes, your Honour, that’s the time that it was raised by the company.
PN785
THE DEPUTY PRESIDENT: Well, that’s right and if that is the case the company has raised it with the union and the union have already put the company on notice previously that it doesn’t seek to have prohibited provisions included in the agreement, then there hasn’t really been any opportunity for them to do anything about that at this stage, has there?
PN786
MR DALTON: Your Honour, I think I can - - -
PN787
THE DEPUTY PRESIDENT: And that was the same position as in Tyco.
PN788
MR DALTON: Your Honour, I can answer it this way with respect. Every time a union files an application for a secret ballot order it’s required to make a declaration to the effect that it’s not seeking prohibited content.
PN789
THE DEPUTY PRESIDENT: Yes.
PN790
MR DALTON: Of course the declaration is a declaration of intent as far as they’re concerned and it begs the question because all it is is a conclusion in their mind that they’re not seeking prohibited content. The evidence is that the union in their mind were prepared to have removed anything that they considered to be prohibited content. That doesn’t then provide the final answer. The Commission still has to look at what evidence there is that the union claims and when I point to a provision that is headed right of entry and it says that right of entry will be in accordance with the Workplace Relations Act.
PN791
Really the Commission’s only task is to work out on a construction of that particular claim whether it deals with a prohibited matter. If it does the union’s just simply saying, you know, we’re happy to have removed prohibited content doesn’t answer the question because one has to look at their claim.
PN792
THE DEPUTY PRESIDENT: I’m not all entirely sure that that submission squares with the findings of the Full Bench in Tyco, Mr Dalton, because the Full Bench pointed out in Tyco that it well may be problematic as to what is or what isn’t a provision and in fact there is a great deal of legal argument that’s taken place not only here but in various other jurisdictions about that particular matter and that it may well be that there are items that remain in an agreement which subsequently prove to be prohibited action and that that doesn’t in any way mean that the union was seeking to have that included in circumstances where it has clearly stated that that is not what it aims to do and a preparedness by them to have that removed prior to certification.
PN793
MR DALTON: Well, they say that now and that’s an answer in respect of section 461(1)(b).
PN794
THE DEPUTY PRESIDENT: Yes.
PN795
MR DALTON: 461(1)(a) is a different issue because one has to look at - - -
PN796
THE DEPUTY PRESIDENT: Yes, but again there’s some authority for the proposition of what they might have done at some point in the past can not be forever held against them.
PN797
MR DALTON: Absolutely.
PN798
THE DEPUTY PRESIDENT: And there is full bench authority for that proposition as well, Mr Dalton.
PN799
MR DALTON: That's correct and so if your Honour, let’s say that attachment D was the only document that we could point to and that subsequent documents, let’s say Hayden 1, did not include it, it would not be open for me to submit now or it would be difficult for me to persuade your Honour that the union had not abandoned that claim for an important part of bargaining period which I think is essentially the test that the Commission has adopted.
PN800
THE DEPUTY PRESIDENT: Yes, but the union may well have been totally unaware of that provision being prohibited.
PN801
MR DALTON: Well, there’s no evidence of that. But that’s not the issue in my respectful submission. The Commission has to look at their claims and one can only do that by reference to the evidence and the best evidence that you have is the evidence of attachment D and Hayden 1 being what the union has sought. And Mr Jacobsen confirmed that. I even took him to the clause in respect of attachment D and that’s still there in Hayden 1. There’s no evidence from the union to say that that was there by mistake and it’s not open for the Commission to draw that conclusion.
PN802
So really it comes down to, in my respectful submission, it comes down to the question that you posed which is whether on a construction of that particular provision in the agreement it deals with prohibited matter and in my respectful submission plainly it does. Plainly it does because it’s headed right of entry, we know what that means. Right of entry means the right of a permit holder, an official of the union, to come onto your workplace for certain purposes. That’s the only thing that’s dealt with in the Workplace Relations Act and that’s what the provision says.
PN803
THE DEPUTY PRESIDENT: Well, doesn’t it deal with simply an agreement by the parties to comply with a particular provision of the Act? Is that what the provision deals with? Nowhere in that provision can you find anything that says anything about the rights of a union representative to enter the workplace. It simply says that the Act will be complied with in respect of right of entry.
PN804
MR DALTON: And we know what the Act says on right of entry which is it provides for rights of union officials.
PN805
THE DEPUTY PRESIDENT: Yes, but the Act says that.
PN806
MR DALTON: Yes. I'll give you an example. A certified agreement says that long service leave will be in accordance with the Long Service Leave Act Victoria 1992. Plainly, in my submission, that is a provision that deals with long service leave and it makes it clear that the - - -
PN807
THE DEPUTY PRESIDENT: But that’s a slightly different thing, Mr Dalton. Yes, plainly it is a provision which deals with long service leave just as plainly this is a provision that deals with right of entry.
PN808
MR DALTON: Yes.
PN809
THE DEPUTY PRESIDENT: But that’s not what the regulations say. The regulation says deals with the right of a union representative - - -
PN810
MR DALTON: A union official.
PN811
THE DEPUTY PRESIDENT: I'll have to find the provision now:
PN812
Right of an official of an organisation of employers or employees to enter the premises.
PN813
MR DALTON: Yes.
PN814
THE DEPUTY PRESIDENT: So that’s not the same. The analogy that you draw is not a consistent analogy, Mr Dalton. Certainly both provisions, the one you refer to, deals with long service leave as this one deals with right of entry.
PN815
MR DALTON: Yes but, your Honour, if you go to the right of entry provisions that’s what - - -
PN816
THE DEPUTY PRESIDENT: In the Act?
PN817
MR DALTON: In the Act.
PN818
THE DEPUTY PRESIDENT: Yes.
PN819
MR DALTON: That’s what they deal with. They don’t deal with anything else on right of entry. They deal with the right of an official of the union who has obtained a permit to enter the site.
PN820
THE DEPUTY PRESIDENT: So essentially what you’re putting to me is that if parties to an agreement agree to obey the law which would seem to be something of a superfluous circumstance in any event - - -
PN821
MR DALTON: Yes, that’s right.
PN822
THE DEPUTY PRESIDENT: That that will render any future application of this Commission for the taking of protected action to be void?
PN823
MR DALTON: That's correct, your Honour. And when you say superfluous it’s not strictly speaking superfluous because leaving aside the provisions that say that they’re prohibited content if one looks at the provision it is in terms a provision that imposes rights and obligations. They are consistent with, they are the same as, those that apply under the legislation, but they have different consequences if they’re not complied with. If the employer doesn’t comply with the Workplace Relations Act provisions that deal with the right of the official to enter the workplace - - -
PN824
THE DEPUTY PRESIDENT: Yes, you’d be in breach of the Act because otherwise you’d be in breach of the agreement.
PN825
MR DALTON: Yes, you’d be liable to breach, et cetera. And what the Act says is you’re not allowed to put those provisions in. So if you accept my argument that deals with the rights of an organisation of employees - I beg your pardon, the rights of an official of an organisation of employees to enter the premises with the employer bound by the agreement as the necessary meaning of clause 14 in attachment D to Mr Jarvis’s statement and Hayden 1, then it follows that the union has been seeking prohibited content and I rely on the decision in Kemp Engineering and Blue Circle which say that you’re not going to be able to persuade the Commission that you have genuinely tried to reach agreement if for the important part of the bargaining period you’ve been pressing a claim that you can’t include in the agreement.
PN826
Your Honour, in a way I think we can say to some extent it’s a technical point because in the context of the overall bargaining this particular provision is not a major issue. The union’s already said that this matter, having been brought squarely to its attention at this point, that it doesn’t press it anyway. But I’m here to address you on the legal effect of the claims that they’ve pressed and so we maintain that objection. Fortunately for your Honour we say that you probably don’t need to dismiss the application on that technical basis in any event because the evidence shows very clearly, in my submission, that the nature of the claims, the demands that have been made and the context of the industry and the negotiations are so unrealistic as to be such that the Commission can not be persuaded that the union has been genuinely trying to reach agreement and is genuinely trying to reach agreement.
PN827
In essence it’s the Visy Board point. The Visy Board case is directly on point. The facts in this case are even more pronounced than the facts that Commissioner Eames dealt with. Your Honour said you’re not bound by that decision. While that may be true it is, in my respectful submission, undesirable for a court or tribunal to not follow decisions made by the same court or tribunal unless you’re convinced that that decision was plainly wrong and in my submission you can’t be so convince. In my submission the decision of Commissioner Eames is correct. Factual findings that the claims were way in excess of what was reasonably and realistically achievable meant that he could not be persuaded that the union had been genuinely trying to reach agreement and was genuinely trying to reach agreement.
PN828
That’s exactly what we say here and when one looks at the facts a claim that involves over a 40 per cent increase in the wages bill, not included on costs so it would be over 50 per cent if you include on costs, in the first year of this agreement is plainly unrealistic. It is several times more than the range of enterprise bargaining outcomes that this Commission is aware of in all industries. It’s notorious that the range of enterprise bargaining outcomes is in the range of 3 to 5 per cent. That is enterprise bargaining outcomes without productivity offsets. Your Honour knows that that’s what happens and has been happening in the last few years and it’s a little above the CPI.
PN829
Here we’ve got a claim that is going to overnight push the wages bill 10 times that rate. Now, that is not, objectively assessed, realistic. It is out there. It is incapable of being accepted and the union must know that. The Commission will also see that the union decided to take this approach after Mr Murphy, the assistant state secretary, found out that the company was doing a non-union deal with its Melbourne employees. The evidence is pretty clear that until that meeting on 2 August when Mr Murphy said you can go and get stuffed, you’re going to do the Gippsland site conditions and pay rates and allowances, that there was a negotiating protocol whereby the parties were going to lock away the main agreement for Hayden employees and then look and see whether they could reach agreement on site allowances to apply at particular sites, et cetera, and that that was to occur after the main body of the agreement had been locked away.
PN830
True all of this happens before the bargaining period and the Commission’s only required to look at what’s happened in the bargaining period, but that background context shows you that the CEPU is annoyed and unhappy with this company for having reached a non-union agreement with its Melbourne employees and that has poisoned and it’s dictated its completely unrealistic and hardline approach since that time and it hasn’t changed that approach since 2 August. So when the bargaining period commenced about six weeks after that 2 August meeting we know that the union has continued to maintain you pay the rates and allowances at these particular sites plus you do the 36 and 35 hours, et cetera.
PN831
That position has been held by the union ever since. Your Honour will see that for much of that time during the bargaining period the company was left in a position where it had five agreements that the union wanted it to sign. This is in respect of 16 employees remember. Those agreements were, in my respectful submission, almost impossible to decipher in terms of how they would relate to each other and so the Commission can not be satisfied that the union has been genuinely trying to reach agreement when all it’s doing is just dumping agreements on the company and saying right, for now on that’s what we expect you to be signing up to. There hadn’t been any discussion, no sensible discussions about what might be put together by way of agreement.
PN832
THE DEPUTY PRESIDENT: Well, that’s not entirely true is it, Mr Dalton? Because isn’t there a letter at some point from the company itself from Mr Jarvis which states that to the effect that I now have an understanding of the union’s claims?
PN833
MR DALTON: Your Honour, sorry. I didn’t mean right until the very end, I was meaning for some time from, you know, August into September. I think your Honour might be referring to the end of October when the company then starts to send, I think it sent something that in summary form, at least in respect of some of the things, it was identifying what the company saw to be the company’s position and what it saw to the union’s position to be. Your Honour, I think the evidence shows that it’s not until the end of November that the union finally lands on exactly what it’s after.
PN834
THE DEPUTY PRESIDENT: Well, I’m not sure that’s true either, is it? There’s a letter of 1 November that the union responds to the letter that I have just referred to that Mr Jarvis sent to them stating that he was now of an understanding of the nature of their claims.
PN835
MR DALTON: Yes, but that’s only in respect of a few things. It’s not in respect of everything.
PN836
THE DEPUTY PRESIDENT: I think it said I now understand the union’s claims or something to that effect. He didn’t say some of them.
PN837
MR DALTON: Perhaps we should go to the document, your Honour.
PN838
THE DEPUTY PRESIDENT:
PN839
This meeting has assisted me in obtaining a greater understanding of our respected positions and your claims.
PN840
MR DALTON: A greater understanding and then it summarised, there is three things that is summarised.
PN841
THE DEPUTY PRESIDENT: Yes.
PN842
MR DALTON: Yes. Then there’s a response to that.
PN843
THE DEPUTY PRESIDENT: That was 25 October.
PN844
MR DALTON: Yes. Well, your Honour, I don’t wish to get bogged down on that. Suffice to say I think it’s late October at the earliest that the company has any sort of sensible understanding. Mr Jarvis’s evidence on which he wasn’t challenged was that he didn’t have a final understanding of what was being sought until a couple of weeks ago. Your Honour, if I could deal with the costings issue now because this is quite important because what the company has done is put together costs which the Commission must accept because there’s been no challenge to that. At no stage has the union disputed that. There is no evidence that calls into question the company’s calculations.
PN845
So based on those facts what evidence is there that the union has taken what is quite an extraordinary claim for increases seriously? Has it taken those costings seriously, has it taken Mr Jarvis’s comments that the company’s business in Gippsland will go broke seriously? Mr Jacobsen’s evidence was that he hadn’t taken that seriously, that employers always say that sort of stuff and as far as he was concerned all he was going to insist on was that the company pay what he regarded to be the market rate.
PN846
THE DEPUTY PRESIDENT: But didn’t the union show some preparedness to make further concessions as late as 1 November in the letter in response to those to those raised?
PN847
MR DALTON: Your Honour, I’m dealing with early December here. This is where the final costings have been done and discussed and that was at the time I was questioning Mr Jacobsen in relation to that.
PN848
THE DEPUTY PRESIDENT: Yes.
PN849
MR DALTON: The evidence that I have just attempted to summarise goes well past early November.
PN850
THE DEPUTY PRESIDENT: No, but the point is that the claims of the union is outlined in, which document was it? Was it Hayden 1, I think?
PN851
MR DALTON: Yes.
PN852
THE DEPUTY PRESIDENT: To the October document is what the company took substantial exception to on the basis of the costs that it would impose upon them, is it not?
PN853
MR DALTON: Yes.
PN854
THE DEPUTY PRESIDENT: Yes. And did the union not then respond to that by making some further concessions to which there was no response by the company?
PN855
MR DALTON: Where, your Honour?
PN856
THE DEPUTY PRESIDENT: In the letter of 1 November.
PN857
MR DALTON: Yes. But, your Honour, the union’s position is encapsulated in its letter of 27 November. The attempt by the union to say that there were some concessions made in early November don’t stack up because the end of November they’re still seeking a 36 hour week straight off the bat. There’s no suggestion in either this document or in their 27 November document that they’re prepared to a phasing in of the 36 hours or anything like it.
PN858
THE DEPUTY PRESIDENT: But you’re saying that they’re not taking seriously the remonstrations of the company in relation to the claims that they are making upon them and all I’m saying to you is, isn’t there some evidence that suggests they have taken those remonstrations?
PN859
MR DALTON: Well, no. In my respectful submission no there’s not. I mean, if one looks at the 1 November letter in isolation
then perhaps one could look at that and say if there’s been some preparedness to move, but of course that’s not what
the evidence is. You’ve got their position that’s encapsulated in their letter of
27 November followed up with their schedule of rates which they provided on the 28th or 29 November. So either on the same day
that they filed this application itself or a day after it. So that’s the union’s position. So you’ve got to look
at all of that and say in light of all of that plus the evidence of Mr Jacobsen which I’ve already referred your Honour to
which was that he didn’t take the position seriously, employers always say that sort of stuff. That’s the evidence.
PN860
In my respectful submission how can the Commission be satisfied on that material that the union has been taking these matters seriously? I submit that you don’t even need to get that far because when you look at the size of the claim alone you can not be satisfied, absent some other material that shows that based on the industry context that there are big increases going around amongst the competitions, that there’s been some major changes to the circumstances in which this company operates, how could you be satisfied that that claim is a genuine attempt to reach agreement with the employer when it involves 40 to 50 per cent increase overnight? And when you compound those increases over the three year period it gets above triple figures. That’s the position we’re in.
PN861
Now, the Visy Board decision involved facts that are not as cogent as they are here. In that particular case there was at the commencement of the bargaining period a claim for a 20 per cent increase in wages per year. That was reduced to 10 per cent per year throughout the bargaining process. In this case we have 90 per cent of the work that’s done is at these sites. Mr Jarvis’s evidence was that he took that into account. He didn’t apply the increase and the allowances across all works, he just applied for the 90 per cent. Even so it involves a 16 plus per cent to the wages straight up across the board and that’s not including the other costs associated with the claims which 36 hour week, for example, is over 15 per cent in itself.
PN862
So you get to a figure, this is in attachment O to Mr Jarvis’s statement, again not challenged, where you’ve got unrealistic claims. Your Honour, for this application not to be dismissed would require your Honour to expressly disagree with the reasons of Commissioner Eames and in my respectful submission to take the approach that’s adopted by Marshall J in O’Connor’s case as effectively meaning that regardless of how extravagant your claim appears to be in the context of the industry, the negotiations, the competition, the going rate for enterprise bargaining increases, that the Commission can be satisfied that you are genuinely trying to reach agreement as long as you stick to your guns on that.
PN863
Now, with the greatest respect that is not the law. The decision of Marshall J was an interlocutory decision if you have a look at the materials, your Honour, at I think it’s tab 3 of the folder of cases that I’ve provided, no, tab 4. On the second page of the report paragraph 3, the bottom of paragraph 3, after referring to the notice of motion. We’re dealing with an interlocutory application here. The final sentence:
PN864
In light of the importance of the subject matter of the notice of motion being dealt with to finality as soon as possible ex tempore reasons for judgment are being delivered today.
PN865
This was an ex tempore judgment delivered in relation to an interlocutory decision and his Honour in setting out those ex tempore reasons quoted from a decision of the Commission at paragraph 43, page 361 of the report:
PN866
Bargaining in good faith does not require a willingness to make concessions.
PN867
Does your Honour have that?
PN868
THE DEPUTY PRESIDENT: Yes.
PN869
MR DALTON: Yes:
PN870
It is consistent with adopting a hard line. Equally it does not imply moderation of demands. It does imply a preparedness to consider seriously offers and proposals made by the other side and to take account of arguments. But if having done these things the bargaining party is unmoved it may still be bargaining in good faith.
PN871
And it goes on. Now, your Honour, that’s not authority for the proposition that regardless of how unrealistic your demands might be provided you have taken account of the other side’s arguments that you’re okay and in fact there are other cases to which I’d like to refer which are in this folder of materials which show that one has to adopt an even handed assessment of all of the circumstances in working out whether you can be satisfied that the party is genuinely trying to reach an agreement. The first case I’d like to refer you to is MEAA v North Coast News. It’s at tab 6.
PN872
Your Honour, this was a pattern bargaining type case where the MEAA wanted to reach agreement with a whole range of regional newspaper outlets. The Full Bench in this case had to consider section 170MP under the pre-reform Act. As your Honour will no doubt recall that’s the closest relative to the provision that we’re dealing with here. That is you had to persuade the Commission that you genuinely tried to reach agreement before you could service the employee with a notice of protected action. The point was rarely taken, but in this particular case it was and at page 338 of the report paragraph 44 the Full Bench refers to the campaign 2000 case.
PN873
Your Honour, you will again recall that under the pre-reform provisions there was another provision that picked up the bargaining in good faith or genuinely tried, was it genuinely tried to reach - yes, genuinely trying to reach agreement provision in section 170MW(2). It was a ground for terminating a bargaining period. That was the campaign 2000 case. The reasoning in the campaign 2000 case is set out, or the relevant part of the reasoning, is set out in paragraph 45 of the Full Bench judgment in North Coast News. Page 339 of the report at paragraph 45 of the campaign 2000 case which is quoted, it’s italicised because it’s crucial to the reasoning here, but in a particular case the finding to that effect is dependent upon matters of fact and degree:
PN874
Such questions of fact and degree obviously need to be answered by reference to evidence and details of particular facts. The more the negotiation conduct can be categorised as evidencing a refusal to allow agreement other than on an all or none basis, the greater the likelihood that it should be found to fail the genuinely try to reach agreement with the other negotiator test. However, there are variations and permutation of demands, conduct, and character of negotiating parties that must be assessed.
PN875
If you go to the next page you will see the Full Bench in North Coast News at paragraph 46 expressly adopts the campaign 2000 reasoning in the 170MW(2) context as applicable as a useful guide for the genuine try test for the purposes of 170MP. And it’s the next sentence which I rely in particular on. The Full Bench says:
PN876
In particular, we endorse the emphasis given to the application of the test through an even handed assessment of the industrial context, of demands, conduct, and character of the negotiators and negotiations, in which it becomes an issue.
PN877
Could I take you to the decision of Bolton J in Coal & Allied Operations v CFMEU and that’s at tab 3 of your folder. Your Honour, this was a case involving 170MW(2). Coal & Allied Operations applied to terminate or suspend a bargaining period alleging that the unions had not genuinely tried to reach agreement before taking the industrial action. The company argued that the unions were really taking strike action because they were unhappy with an issue that was extraneous to the bargaining, that is the company’s decision to offer individual alternative arrangements to the employees in the form of AWAs.
PN878
Bolton J rejected that argument on the facts, however he dealt with this question of what that test, genuinely try to reach agreement, meant. And at page 115 his Honour says:
PN879
It may be that a stance taken by a party in negotiations may be judged to be so unrealistic or so unreasonable as to evidence some lack of genuineness by that party in the negotiation process or even in seeking to reach agreement with the other negotiating parties.
PN880
THE DEPUTY PRESIDENT: Sorry, where abouts are you reading from,
Mr Dalton?
PN881
MR DALTON: It’s about two thirds or three quarters of the way down on page 115 of the report.
PN882
THE DEPUTY PRESIDENT: Yes.
PN883
MR DALTON:
PN884
Such a judgment would need to be made having regard to the particular circumstances of the negotiations and the general understanding of the nature and course of industrial negotiations.
PN885
Now, in my respectful submission that is consistent with the Full Bench’s decision in North Coast News. So an even handed, common sense assessment of the claims. The conduct, the negotiation process, the industry context, the industry in which they were operating, the going rate, the lack of productivity offsets here, the huge size of the increases. Those are the sorts of things that I rely on and I say that they mean that you can’t be persuaded that the union has genuinely tried to reach agreement here. This all then dovetails into the decision of Commissioner Eames in Visy Pak which I’ve already mentioned and I’m sure your Honour is familiar with. It’s at tab 1 of the materials.
PN886
As I said in my respectful submission the facts in this case are in fact stronger than the facts in the decision of Commissioner Eames and as I submitted earlier your Honour should follow it. Your Honour, in the outline that we filed and served yesterday I conclude with in the circumstances the CEPU has not demonstrated that it’s met the requirements of 461(1)(a) and (b) and that it must go away and reconsider its claims. It should give serious consideration to the company’s costings and the company’s position that the claims would send it broke. In my respectful submission there’s insufficient evidence for the Commission to conclude that the union has in fact done that and really the onus is strongly on the union in circumstances where it’s seeking such an enormous increase for it to demonstrate that.
PN887
THE DEPUTY PRESIDENT: What do you say, Mr Dalton, about the union claim that they requested information upon which those costings were based and were denied it?
PN888
MR DALTON: I’m glad you asked me that, your Honour.
PN889
THE DEPUTY PRESIDENT: It wasn’t a Dorothy Dickson, Mr Dalton.
PN890
MR DALTON: I’m sure it wasn’t intended to be, your Honour, but we certainly see that as having the hallmarks. We don’t see it as assisting the union’s case the reason being is that the union had all the information it needed to work out whether the company’s costings were accurate or not because it was provided with all of the information regarding the man hours and where those man hours were being allocated over the previous 12 months, at which sites and what the rates and conditions were that were put into the calculations. Mr Jarvis’s evidence in his statement was that the union agreed to the methodology and it agreed to the calculations. Not disputed. Not challenged on that evidence.
PN891
What they were not provided with were the contracts that the company has with its clients. At the end of the day the union wants the rates that the client pays its tradespeople. Mr Jarvis said that he formulated his offer by reference to what his competitors pay. Not challenged on that. There was no suggestion that the company’s formulation is other than what Mr Jarvis says it is, that is based on what the competition are paying. Mr Jacobsen made it clear as far as he’s concerned market rate is market rate paid by the client and that’s why these claims are so out there. Asking for the company’s contracts with the clients in my respectful submission doesn’t take it anywhere. There’s nothing wrong with the company saying that’s commercial in confidence and we’re not providing that to you.
PN892
THE DEPUTY PRESIDENT: Well, it might go to the veracity or otherwise of the statement that it was going to send the company broke, might it not?
PN893
MR DALTON: Well, it may, it may.
PN894
THE DEPUTY PRESIDENT: Yes. The union wasn’t in any position to assess whether or not the company would be sent broke or not by its claim given that it wasn’t given access to that information.
PN895
MR DALTON: Well, it can’t and - yes. Mr Jarvis has given evidence of that in his statement that at paragraph 46 Hayden has contracts with its oil, power and paper clients which fix prices for the length of the agreements. Now, he gave further evidence today that the average length of these contracts is, I think he said three to five years as I recall.
PN896
The agreements are commonly for three years.
PN897
This is what he says in his statement here.
PN898
Hayden makes, based on present wages, approximately 12 per cent earnings before income tax on these agreements when averaged out across - - -
PN899
THE DEPUTY PRESIDENT: Sorry, where is that?
PN900
MR DALTON: Paragraph 46 of his statement.
PN901
THE DEPUTY PRESIDENT: Yes.
PN902
MR DALTON: Now, none of that has been challenged. Now, there are things that go beyond just the statement about 12 per cent EBIT. There are things such as the contracts are with these particular clients, the agreements are commonly for three years, bear in mind Mr Jacobsen’s been having a number of offline discussions with clients according to his version of events and I keep going back to Mr Jacobsen’s own evidence that he didn’t take Mr Jarvis’s comments about this seriously.
PN903
THE DEPUTY PRESIDENT: Do you say that that information regarding 12 per cent earnings before income tax and the following information regarding profit margin was information provided to the union?
PN904
MR DALTON: Yes it was. Mr Jarvis gave that evidence today that he said that.
PN905
THE DEPUTY PRESIDENT: Specifically that the union, that the profit margin was 12 per cent or the EBIT was 12 per cent?
PN906
MR DALTON: He said he told them about what the profitability of the company was, the profitability rate of the company was. I can’t remember his exact words.
PN907
THE DEPUTY PRESIDENT: Yes.
PN908
MR DALTON: So he gave that information. I think the request was made that he provide the actual contracts that he had to rely on at that point. Your Honour, also I go back to common sense, an even handed assessment of this industrial context, et cetera. What business in the modern age in service industries where labour costs is by far and above your most important expense, your most significant expense, can wear an overnight 40 to 50 per cent increase in wages? If the Commission pleases.
PN909
THE DEPUTY PRESIDENT: Thanks, Mr Dalton.
PN910
MR COONEY: Your Honour, first going to the right of entry clause, has your Honour got a copy of the Tyco decision?
PN911
THE DEPUTY PRESIDENT: No, not unless you’ve given me one and I haven’t seen one up here. The Full Bench decision you’re talking about?
PN912
MR COONEY: The Full Bench decision, your Honour.
PN913
THE DEPUTY PRESIDENT: Yes. I do have some recollection of it, sort of a little bit close to my heart seeing I made the decision at first instance.
PN914
MR COONEY: Your Honour, I'll hand up my copy. I'll just take your Honour to the bottom of paragraph 20 where it states that if there is doubt as to prohibited content it is open to the union to make clear that it is not seeking prohibited content. It was the evidence of Mr Jarvis that the union has assured him that it wasn’t seeking prohibited content as it was not seeking matters that were contrary to the National Building Code and further I’d say that that particular clause in the agreement seeks not to go beyond the Workplace Relations Act. It was not seeking to do anything other than what would normally be allowed under the Act and as I said none of our other agreements have such a clause and we would seek to remove that clause in the next version of the agreement.
PN915
In regard to the claim that the union was failing to genuinely negotiate if I could take your Honour to the decision of Acton SDP in Cadbury Schweppes which I do have a copy. Now, in this decision her Honour actually concluded at paragraph 53 that:
PN916
There is insufficient evidence to persuade me that the AMWU or the CEPU -
PN917
It must have been the other branch of the union:
PN918
- were seriously considering the offers put by Cadbury Schweppes.
PN919
But what I’d like to draw your Honour’s attention to is paragraph 47 where her Honour calls on the concept on the genuinely trying to negotiate as being that test considered in the AMIEU v G & K O’Connor and we would submit that that is authority on which your Honour ought to rely in testing whether the union has sought to genuinely negotiate. In regard to the claims that the union position is indecipherable I’d go to the Hayden letter to the union of 26 October which was attachment K to Mr Jacobsen’s statement. There’s a table there where it sets out the CEPU position of 36 hours per week increased by 16.3 per cent and trade to other employers’ rates, that the claim of the union was well understood.
PN920
I’d then in terms of whether the union was seriously considering these positions it was the union that was constructing the agreements in response to Hayden claims that the agreement was folded from five agreements into one agreement, four appendices and subsequently into one agreement with wage rates showing allowances provided to Hayden on the same day that the industrial action, the application for the industrial ballot was provided. We would say that that shows that the union continues to seriously consider Hayden’s offers and continues to negotiate.
PN921
Your Honour, I’d also like to take you to the letter 1 November from the union to Hayden. That’s attachment M to Mr Jacobsen’s statement and specifically the three dot points marked 1, 2 and 3 where the union sought to vary the claim to phase it in and on the evidence of Mr Jarvis there was simply no response to that aspect of the union claim. There was a letter from Hayden on 8 November and again a letter from Hayden on 21 November and then subsequently the union reiterated its claim on 27 November. But we would say that it’s difficult for the union to adjust its claim and it receives no response when it seeks to try and modify its demands.
PN922
And finally we only reiterate that this is an application for a ballot. It’s for the employees to make a choice upon whether they take industrial action and it’s open to the company to speak to the employees before the ballot occurs as to the veracity of the claim and whether they genuinely seek it. Again if the claim is successful and it’s seeking economic damage upon the company there are provisions in the Act for the company to seek to terminate the bargaining period. Those provisions do not appear in the application for industrial action. Thank you, your Honour.
PN923
THE DEPUTY PRESIDENT: Yes. Thanks, Mr Cooney. All right, I’m going to adjourn hopefully relatively briefly, probably time enough for you to stretch your legs a little bit and I'll return and give you a determination on the objections that have been raised by the respondent employer. Should the decision go in favour of granting the application then I'll hear further from the parties in respect of the form of orders and so forth. All right.
<SHORT ADJOURNMENT [3.03PM]
<RESUMED [3.50PM]
PN924
THE DEPUTY PRESIDENT: Thank you. The question I have to determine in this matter is whether the applicant union during the bargaining period (a) genuinely tried to reach agreement with the employer and (b) is genuinely trying to reach agreement with the employer. The respondent employer’s objection to the granting of the application has two limbs both relating to the genuineness question. The first is that the union is not genuinely trying to reach agreement as it has continued to press a claim for prohibited content within the agreement. On the material and submissions before me I have doubts on this matter that (a) the claim in question is prohibited and (b) I have further doubts, given statements by the union to the company that it is not seeking and does not seek prohibited content, that the union is in fact pressing this claim.
PN925
For the sake of clarity the claim relates to a provision in the agreement whereby the company and the union agree to comply with the Workplace Relations Act in respect of the Act’s right of entry provision. I have doubts that this claim "deals with the rights of an official of an organisation of employers or employees to enter the premises of the employer bound by the agreement" as required by regulation 8.5(1)(g) of the Act. My doubts further extend to whether the union in any event can be said to be pressing the claim given the Full Bench decision in Tyco. In the circumstances however I don’t need to determine the matter as in my view the applicant must be dismissed based upon the second limb of the respondent employer’s objection.
PN926
The second limb was to the effect that the union’s claim was so unreasonable or outlandish as to render the union’s position in seeking an agreement as not genuine. In its letter of 27 November 2006 the union provided a reiteration of its claims on the company. That letter is attached to the statement of Mr Jarvis which has been marked Hayden 2 to Mr Jarvis’s statement. The evidence before me now and before the union both on and prior to 27 November was that the claims outlined in that letter would impose such financial hardship on the company as to affect its ongoing viability. Beyond requesting access to company charge out rates on its clients access it was denied the union failed to properly clarify, assess and most importantly undermine the claim by the company in relation to its assertions in respect of viability.
PN927
In my view this omission by the union is, to paraphrase the words of Bolton J in Coal & Allied Operations v CFMEU, so unrealistic and unreasonable as to evidence a lack of genuineness by the union in trying to reach agreement with the respondent employer. As it appears that the union continues to seek an agreement in accordance with the letter of 27 November and absent a cogent response to the company’s evidence that such agreement would render its business non-viable I must conclude that the union is not genuinely trying to reach agreement with the employer. In other words I think, Mr Cooney, you can’t be genuinely trying to seek an agreement which if it were achieved would have the effect of putting that employer out of business. The application is dismissed. Being nothing further we’ll adjourn.
<ADJOURNED INDEFINITELY [3.56PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
GARY PAUL JACOBSEN, AFFIRMED PN19
EXAMINATION-IN-CHIEF BY MR COONEY PN21
EXHIBIT #CEPU1 - STATEMENT OF G P JACOBSEN INCLUDING ATTACHMENTS A-S PN48
CROSS-EXAMINATION BY MR DALTON PN102
EXHIBIT #HADEN1 - HADEN MECHANICAL SERVICE GIPPSLAND & CEPU COMPANY AGREEMENT 2005-2008 PN310
RE-EXAMINATION BY MR COONEY PN387
THE WITNESS WITHDREW PN425
IAN GEORGE DAVISON, AFFIRMED PN431
EXAMINATION-IN-CHIEF BY MR COONEY PN431
EXHIBIT #CEPU2 STATEMENT OF MR DAVISON PN437
CROSS-EXAMINATION BY MR DALTON PN482
RE-EXAMINATION BY MR COONEY PN509
THE WITNESS WITHDREW PN512
BRUCE STEVEN JARVIS, SWORN PN517
EXAMINATION-IN-CHIEF BY MR DALTON PN517
EXHIBIT #HADEN 2 STATEMENT OF BRUCE JARVIS PN528
CROSS-EXAMINATION BY MR COONEY PN608
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