C2006/1004, Transcript of Proceedings [2006] AIRCTrans 208 (16 February 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 14123-1

COMMISSIONER THATCHER

C2006/1004

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION-WESTERN AUSTRALIAN BRANCH
AND
ALCOA WORLD ALUMINA AUSTRALIA
s.170LW - Application for settlement of dispute (certification of agreement)
(C2006/1004)

PERTH

9.40AM, WEDNESDAY, 01 FEBRUARY 2006

Hearing continuing

PN1

MR D MCLANE: I seek leave to appear on behalf of the CFMEU.

PN2

MR A HEELAN: I seek leave to appear on behalf of the respondent.

PN3

THE COMMISSIONER: Thank you. Leave is granted in both instances. You're in a new capacity Mr McLane?

PN4

MR MCLANE: Yes, sir.

PN5

THE COMMISSIONER: Congratulations on the move and I hope it all goes well for you. Unless anyone has got anything to say I thought we'd get straight into it. The applicant will make its case and then the respondent will make its case, and depending upon what happens if there's matters raised by the respondent which the applicant wants to say something in response, that would be allowed.

PN6

MR MCLANE: Certainly, sir. A closing only if necessary in other words?

PN7

THE COMMISSIONER: Yes.

PN8

MR MCLANE: I understand sir.

PN9

THE COMMISSIONER: I understand each of you have witnesses. I don't know whether you've discussed that amongst yourselves, whether there's any objection. I mean, if there's no objection I don't mind the witnesses saying. If there's any objection, well, the customary procedure can apply.

PN10

MR MCLANE: Yes. I don't have any problem with that sir.

PN11

THE COMMISSIONER: I don't think it's one of those ones that's going to - Mr Heelan?

PN12

MR HEELAN: Mr McLane and I discussed it by telephone yesterday. I think both of us are fairly relaxed.

PN13

THE COMMISSIONER: Okay then, so we'll allow the witnesses to remain. Over to you Mr McLane.

PN14

MR MCLANE: Sir, an application comes before you by way of 170LW of the Act, a section of the Act that gives the Commission very broad powers in the terms of private arbitration. I can take the - I've listed a set of authorities and I just in opening rely on the second one - sorry, the first one on the list, Finance Sector Union v GIO, and I'll take the Commission to that later in just a little bit of detail, but that really sets out what the Commission's powers are.

PN15

And importantly just for the opening the powers and the function under 170LW are arbitral not judicial. The reason that I stress that a bit so early is because the list of authorities provided by the respondent with the exception of the Codelfa case that we were referred to basically are authorities for judicial interpretation and the rules that apply. I won't go to any detail at this stage and I may not unless there's a need to later on, but the rules as they relate to extrinsic material are covered in Codelfa, and without going to it in essence if the words in the agreement are clear or in the contract are clear then judges, commissioners, arbiters aren't entitled to go to any extrinsic evidence.

PN16

Now, we say that the clause that gives rise to this dispute between us, which is clause 7(a) of the appendix in the certified agreement is clear on its face, and that the Commission doesn't need to go to extrinsic evidence. That's the first argument. It's a two pronged approach I'm going to use, Commissioner. And in the alternative if the Commission does feel the need to go to extrinsic evidence then Codelfa sets out what extrinsic evidence we're allowed to introduce, and really in my submission without going to the case, allows the Commission to have a pretty wide look.

PN17

It says that things like, you know, logs of claims and, you know, what the parties hoped to achieve really aren't things to be borne in mind. What's really to be borne in mind is what the actual agreement means and what the agreement meant at the time that there was a meeting of the minds. And I readily concede that it may well be necessary to go to some extrinsic evidence, and we propose to do so, understanding my prime or the first submission at best, and to be able to do that.

PN18

THE COMMISSIONER: If it may assist, I'm sitting here at the moment bearing in mind having a look at the outline of the submissions of both the applicant and the respondent which each refers to extrinsic material. So I'm not proposing to do a double bunger type decision, I'm just going to hear the evidence noting that your primary - sorry, hear the evidence but noting your primary submission that the wording of the agreement is not ambiguous or susceptible to more than one meaning. However I'm also going to accept relevant extrinsic material on the basis that that may not be so after I've heard the submissions of both sides.

PN19

MR MCLANE: Thank you, sir. In that case I'll just proceed. So we're not asking for a judicial interpretation but a fair and equitable resolution of the dispute after consideration of the merits of the matter.

PN20

THE COMMISSIONER: There are some limitations on the jurisdiction of the Commission of course in respect of what is said by the dispute resolution clause of the agreement and section 170LW.

PN21

MR MCLANE: That's absolutely correct, Commission, and that is covered well and truly in the private arbitration case dealt with by the High Court, the Gordonstone Coal case and CFMEU that's referred to in the FSU case if we need to go to that.

PN22

THE COMMISSIONER: Very well.

PN23

MR MCLANE: We say that the matter before the Commission is really quite a simple one. We also say that it appears at this stage that neither side has a knockout punch. We'll have to wait and see obviously because you don't always and very rarely see knockout punches coming. But given that we've exchanged a fair amount of information it appears that the company doesn't have one and we don't have one. We say the words in the schedule to the agreement are clear and we also say that they don't really need to have anything added to them to support the contention that we place on it, and that is that that payment was to be paid by way of six monthly instalments.

PN24

Now, if the company is correct in their assertions there would need to be words added to the clause to give business efficacy to the contract and those words would have to be something along the lines of paid in arrears or, you know, not paid initially but paid after six months. I propose to call two witnesses and just to very quickly touch on the history because the history also doesn't seem to be really in dispute between us.

PN25

THE COMMISSIONER: Are you going to come back to that last point before you get into the witnesses, about the words added?

PN26

MR MCLANE: Yes.

PN27

THE COMMISSIONER: Say we looked at for example in comparison clause 8(a) about pay being made fortnightly. Is there a difference between - how do you see a difference between 8(a) and this A7, because this says all pay will be made fortnightly. And I presume that's not - - -

PN28

MR MCLANE: Thank you for that, sir, yes. Yes, that's an important distinction but a very clear one. And the reason for that is that it's settled and it's well known by the community at large let alone practitioners and people who might work or pay wages that that really reflects the work wages or wages work principle, and that is that work has to be done to attract wages. Wages are never paid in advance.

PN29

THE COMMISSIONER: When are they paid? When are they paid at Alcoa? I mean, are they paid partly in advance, or when is pay day, what's the pay cycle and what's the pay day do you know?

PN30

MR MCLANE: I apologise, sir, I'm unable to - - -

PN31

UNIDENTIFIED SPEAKER: Monday to Sunday.

PN32

MR MCLANE: I'm unable to assist you with that. But I could lead some evidence on that if that's - - -

PN33

THE COMMISSIONER: Yes, okay. I'm just wondering if it is a Monday to a Sunday does it get paid on the following Monday or does it get paid mid week of that second week? I'll wait to hear the evidence, but I'm sort of saying well, is it really in arrears or is it partly in arrears or what is it? There's no words there, it just says fortnightly.

PN34

MR MCLANE: And that's not unusual and that is common throughout many awards, but generally - and I don't talk about the specifics because I don't know, but generally wages are only paid once work is performed. The obligation of the employer is to pay for that and it's a wages work bargain. If the work's not carried out then wages don't have to be paid. But that's in my submission quite distinct from the type of payment that we're talking about here that's become known as the URO payment. It's when somebody is unavailable for relief.

PN35

And it's a payment - well, perhaps if I dealt with it - it's a payment, and there's a little bit of history to it and it's a little bit convoluted how it comes about. But the evidence will show, and I don't think there's any - - -

PN36

THE COMMISSIONER: Okay. Well, you can address that after you've done the evidence.

PN37

MR MCLANE: Sure.

PN38

THE COMMISSIONER: But what I'm sort of trying to work out is, your agreement - sorry, your application - I'm looking at point 3 of the schedule to your R47 - you seem to be drawing attention to the fact that the allowance is paid in arrears and not being paid at the time that the URO work is undertaken. Elsewhere you say - and I think in your outline of submissions you say the allowance should be paid at six monthly immediately the agreement was entered into.

PN39

MR MCLANE: Yes.

PN40

THE COMMISSIONER: Which seems to me to be saying, is it conceded that you're saying therefore that what you're seeking is that the allowance be paid six months in advance?

PN41

MR MCLANE: That's what we're seeking from this hearing, that's correct. However without saying what I'm going to lead, some of the evidence I lead will be in regard to when it was first advanced and what people's thoughts were and understandings were at that stage, and that's different. But yes, we are seeking an order that the payment be by way of instalments, registration of the agreement then in six months time.

PN42

THE COMMISSIONER: So October, say April, October, April.

PN43

MR MCLANE: That's correct, sir. And that's the way instalments are paid. The next time the ANZ Bank rings me and says I'm a month behind on my payments I'll tell them no, I'm a month in front.

PN44

THE COMMISSIONER: Well, I was listening to your argument about the distinction between 8(a) and that seemed to be an argument like community acceptance, industrial general acceptance for the payment of wages after the work is done.

PN45

MR MCLANE: Yes.

PN46

THE COMMISSIONER: I've had a little look myself. I haven't done - but I was trying to find some authorities about this, and a bit light on actually trying to find some authorities. But I wanted to ask you was, industrially from your experience what are some examples of entitlements being paid in advance?

PN47

MR MCLANE: It's really a question of - - -

PN48

THE COMMISSIONER: I was trying to think that maybe it's where it's for clothing or something, where someone has got to go out and buy something.

PN49

MR MCLANE: Yes.

PN50

THE COMMISSIONER: I don't even know, I think tool allowances are paid basically fortnightly or weekly.

PN51

MR MCLANE: They are as part of the, you know, when you pick your pay up.

PN52

THE COMMISSIONER: When you get your pay.

PN53

MR MCLANE: That's correct. That's where the history does come into play on this particular case.

PN54

THE COMMISSIONER: Okay. So you're saying this is a unique thing is it, unique to the industrial world?

PN55

MR MCLANE: But you've got to bear in mind what was happening before this particular agreement in our submission, and people were being paid a day in lieu when they provided the cover. Now, that wasn't the case from day one, but for a number of years people were paid a day in lieu. It then changed, and I won't go too much into that because there's evidence coming about that. That changed. And as part of this agreement and the lead up to it, it was a claim from the union. Initially that claim wasn't resolved and an agreement was reached, signed off on. Then something happened with some other unions and that gave rise to the issue being re-visited and the payment, the ROU or RUO, I keep getting it wrong, the URO payment be negotiated and come into effect.

PN56

So it's really, although we're saying it should be paid up front, it's more accurate to say it should be paid up front for the purposes of the current agreement. We would argue that it's not being paid up front but the work has been done and the cover has been provided.

PN57

THE COMMISSIONER: Okay. So I think what I'm hearing you saying is that it's not so much that this is an industrial precedent for elsewhere in paying in advance, it's to do with the unique circumstances of this particular situation, that's what you're relying on?

PN58

MR MCLANE: That's correct, sir. And just a little bit further, we say it recognises work done.

PN59

THE COMMISSIONER: Okay. I've got a couple of other queries but I'll wait till you've done your evidence and you've made your final submission.

PN60

MR MCLANE: Certainly, sir. The only thing I would say before calling my first witness is that this really is quite a simple matter and, with the greatest of respect, I would urge the Commission to be guarded about being drawn right back into the history and all the machinations and everything that's gone on and becoming engrossed in that, because we say it's quite simple, it's not complicated, and the pertinent - - -

PN61

THE COMMISSIONER: Simple because you say it should be paid in advance, six months in advance, and the employer says six months in arrears.

PN62

MR MCLANE: Yes.

PN63

THE COMMISSIONER: One or the other, which is it?

PN64

MR MCLANE: That's it in essence.

PN65

THE COMMISSIONER: I once worked at a place and I got paid monthly and I somehow or other got paid halfway through, I got paid two weeks in and two weeks out, and my agreement or my contract didn't say that, it was just a thing someone agreed, but it was a monthly period. But anyway in this case I think I'm being asked from your perspective, is it six months up front or six months in arrears?

PN66

MR MCLANE: Yes, it's that simple, sir.

PN67

THE COMMISSIONER: And that's the issue?

PN68

MR MCLANE: That is the issue.

PN69

THE COMMISSIONER: And I agree, that must be the focus of the hearing, and if anything is not relevant to that it's not going to carry much weight.

PN70

MR MCLANE: Thank you, sir. We say that really the evidence that's important, or the evidence that will determine is evidence about how the $2880 was put forward, what the understanding was at the time that it was put forward, when the prospect or the proposal to pay by way of instalments came into being. And I've probably identified three issues here. Where did it come from, what did people understand, when did the idea of instalments come up in relation to when the offer being made, and what was in people's minds - sorry, I've said that. Whether or not the company took any step to correct the understanding that the way they presented it brought about. And I've probably gone a little bit further there than
I - - -

PN71

THE COMMISSIONER: I think where I'm coming from at the moment is I'll be guided by Codelfa unless either party convinces me otherwise, so therefore I'm not going to - but I'm not going to hop in and say, you know, stop that evidence. I think I'll just hear the evidence, but in assessing the evidence, going through the transcript and weighing it all up. I'm not going to give weight to the actual intentions, aspirations or expectations of the parties, but to the objective framework of facts within which the agreement came into existence unless either party wishes to make a different submission. Yes?

PN72

MR HEELAN: Sir, just by way of clarification with what the Commission's just said, do I take it that on that basis it would not be necessary for either of the parties to raise objections in terms of evidence on the basis of Codelfa because the Commission would take that into account, will give weight to the evidence based on Codelfa?

PN73

THE COMMISSIONER: That would be my preference unless you object otherwise, or were to make a submission otherwise Mr Heelan. Otherwise we could be here all day ruling things in and out, and it's not going to be very helpful from a time perspective or efficiency perspective.

PN74

MR HEELAN: It certainly seemed to me, sir that the approach proposed by the Commission would be the most expedient.

PN75

THE COMMISSIONER: Thank you. Thank you, Mr McLane?

PN76

MR MCLANE: Thank you, sir. I'd like to call Mr John Keeley.

<JOHN KEELEY, AFFIRMED [10.05AM]
<EXAMINATION-IN-CHIEF BY MR MCLANE

PN77

MR MCLANE: Would you please just state your full name and address to the Commission please?---John Keeley (address supplied).

PN78

And where do you work and what's your position?---I work for Alcoa at the Pinjarra powerhouse, and I'm a powerhouse controller and shop steward.

PN79

And were you involved in the negotiations for the current agreement?---Yes, I was involved.

PN80

And what sort of involvement did you have?---I sat on the negotiating committee from when the negotiations first started.

PN81

And how long have you been employed by Alcoa?---This time around, 1988, so about 17 years.

PN82

Okay, thank you. Do you hold any positions within the CFMEU?---Yes. I am a shop steward for the CFMEU at the Pinjarra powerhouse.

PN83

Okay. Now, if we can just go to the negotiations. Were they conducted over a series of time?---Yes. The negotiations would have taken place probably over probably 14, 18 months period of time.

PN84

And just who was there from the union side and who was there from the company side to the best of your recollection?---From the union side from Wagerup there was two representatives. There was Ben Price, Matt Rolls. From the Kwinana powerhouse there was Ray Watson, Paul Steele, and from the Pinjarra site there was me and Eric Pegg.

PN85

Okay. What about from the company?---From the company we had the then three powerhouse managers, John Irving briefly, we had Pat Watt and Bob Ryan, and we also had an ex Commissioner sitting in on it as well.

PN86

Who was that?---Bob Langer?

PN87

Was it Bob Laing?---Bob Laing, sorry.

PN88

You mentioned Mr Matt Rowls. Is Mr Rowls present today?---Yes, he is.

**** JOHN KEELEY XN MR MCLANE
PN89

And also Mr Watt and Mr Ryan?---Yes, they're both present in this one.

PN90

Okay, thank you. Can you just briefly explain to the Commissioner when and how the annualised pay package came into being?---I was on the original negotiating committee when that annualisation pay package - - -

PN91

Can you recall the year, I'm sorry?---1992.

PN92

Okay. And then if you'd just continue?---Yes. I was on the original negotiating committee when we put that annualisation pay package together, and essentially what it was is to actually remove the overtime component and have an annualised based pay.

PN93

And how many hours per week would you be working under that arrangement?
---It was a 36 hour week. We all already were on a 36 hour week.

PN94

And how was that configured?---It was with a five panel roster.

PN95

And how many hours a day would you work?---We do a 12 hour shift, a 12 hour shift roster.

PN96

Okay. And is that still the case?---Still the case.

PN97

And I take it from time to time the relief coming in would fail to come?---At times yes, we would be running short.

PN98

How was that dealt with?---At the time in the past agreements, past CEA we actually had manning agreements, manning levels, and if the manning levels fell on the shift then it was up to us to initiate coverage.

PN99

Okay. When you say us who do you mean?---The powerhouse operators.

PN100

Not the management?---No. It was left up to us, it was our responsibility. We worked in with them if need be, but the majority of the time we used to run the show.

PN101

All right. And am I correct in saying - well, sorry, let me come at that again. Did you provide that cover - did you receive anything extra for providing that cover?
---Initially no. Initially it was thought to be part of the agreement, the initial agreement, but at a later stage because of the going ons of what was going on out in the refinery with other unions et cetera a re-rostering or a day in lieu policy come into place.

**** JOHN KEELEY XN MR MCLANE
PN102

Okay. Can you recall roughly when the day in lieu came into place?---I'd say within a couple of years of going on to the annualisation agreement.

PN103

And so would that be a paid day in lieu?---No. It was a re-roster which meant that you would take the day back.

PN104

All right. And you wouldn't lose any pay for that?---No. The day had to be taken back as soon as possible.

PN105

Okay. And did that work well?---It worked, yes, it worked.

PN106

Now, if I can bring you forward now - sorry, if I could just have two seconds, and apologise for that. I'd just like to bring you forward now Mr Keeley to the negotiations for the current certified agreement. Was the issue of the URO raised as part of those negotiations?---Yes, initially, yes.

PN107

And were you able to initially reach agreement on that?---No, we couldn't reach agreement, it became a stalemate, we couldn't move anywhere on it.

PN108

Did the union put forward any proposals in relation to a payment or payments?
---We initially in our log of claims we had some form of repayment or a payment system in place, that's what we were looking at and that's what we were hoping to get but it never got off the ground.

PN109

Did you put forward any options as to how something might be able to be done?
---The options that were put forward were something along the lines we were looking at - - -

PN110

I don't want you to spell them out?---Yes, okay. There was options put out.

PN111

The reason I don't want you to spell them out is because I'm going to get an objection.

PN112

THE COMMISSIONER: Sailing close to the wind, yes.

PN113

MR MCLANE: Yes, thank you.

PN114

So there was four options put forward?---That was at a later stage, yes, yes, down the track.

**** JOHN KEELEY XN MR MCLANE
PN115

All right. And, sorry, that wasn't during the first round of negotiations?---No. We were getting nowhere in the first round so it was just, it was parked because there was just too much going on at the time. We had too many other issues to resolve so we sort of parked that one.

PN116

Okay. Now, did you finally reach agreement?---On the URO coverage?

PN117

No, on the CA?---At the end we got an agreement to take to the members, yes.

PN118

All right. Now, at that stage was the URO part of the certified agreement?---No, it wasn't. Because we couldn't get agreement it was left out.

PN119

Okay. How did it come to find a spot in the schedule, in the attachment?---As I touched on earlier, there was lots of things happening out in the refinery with other unions et cetera, and I actually made Pat Watt aware of it and Bob Ryan and Pat Watt actually called a meeting, and that's the first time we heard about a payment system for the URO coverage, an official payment system.

PN120

All right. Can you recall when you first heard a proposal put forward?---Yes. The first proposal that would have been put on the table would have been by Bob Ryan and the proposal was for 2880, and that was at Meadow Springs Golf Course.

PN121

Okay. And was there any mention at that time about how that 2880 might be paid?---I was certainly under the impression that it was going to be an up front 2880 payment.

PN122

Okay. When the 2880 was put forward did that immediately resolve the matter?
---No. We entered - as soon as it was put forward within minutes we were sort of negotiating to - we wanted to know how the 2880 was broken down, trying to calculate figures. We also wanted to - we actually come back with counter claims at the same time, you know, within, I'd say within 20 minutes, half an hour we were coming back with counter claims on it.

PN123

What were you attempting to do?---We were, I guess we were trying to maintain the36 hour week in the whole system, and yes, improve on it.

PN124

All right, I just want to restrict you to the 2880 at this stage?---Yes, okay.

**** JOHN KEELEY XN MR MCLANE
PN125

What were you trying to do in relation to the 2880? Were you trying to squeeze a bit more?---Yes, we were trying, yes, we were trying to improve on it.

PN126

All right. And is it fair to say, without my friend jumping up, that you eventually agreed on 2880?---We thought it was the best we could do. But the agreement never come out until - that never come out at that meeting. The agreement come out way down the track.

PN127

Okay, thank you. Now, your state of mind at the time the 2880 was put forward was in relation to how you were going to receive it was what?---My understanding was it was an up front payment.

PN128

All right. Of what?---It was an up front payment for doing four UROs.

PN129

What amount?---2880.

PN130

THE COMMISSIONER: Sorry, is this his understanding at the golf course or is this his understanding way down the track when he - - -

PN131

MR MCLANE: I'm asking about understanding at the golf course, and then I'm going to go from there. So the understanding is at the golf course when it's first put forward?---Yes.

PN132

THE COMMISSIONER: Yes, thank you.

PN133

MR MCLANE: Now, when did you first - well, when did you first hear anything about the payment being by way of instalments?---It would have been when the paperwork started surfacing around the table and that. In the control room there was agreements floating around, draft agreements, and that's when we first started seeing the highlights of this six monthly thing started floating around.

PN134

Okay. Did anybody from the company ever verbally say to you we'd like to pay this by instalments? At that time I'm talking about?---At the time, no, I can't recollect, I cannot remember anyone saying that.

PN135

Do you know what it was or can you identify what it was that brought you to the belief or the understanding that you were going to be paid the $2880 up front as a lump sum?---The company was having trouble with the coverage, they knew they needed coverage in the powerhouse so they had to address the issue, and the only way that they could address the issue was to offer this 2880. And after they've done the figures they realised there was - they needed roughly four people to do coverage to cover their manning levels within the power station or to cover some and keep the manning levels up. And that's, I guess that's where the 2880. I thought well, if they're going to give the 2880 they're going to have to pay it up front.

**** JOHN KEELEY XN MR MCLANE
PN136

Okay. Had you and your colleagues been providing the cover before?---Yes, we have been providing cover before, yes.

PN137

Did anybody from the management spell out to you how they intended to pay the 2880 prior to - I mean in the time prior to you seeing it in a draft?---No, I don't really - I don't recall anyone breaking it down as such. I was certainly under the belief that if it was going to be paid in two instalments then the first instalment would kick in after the Commission, the first pay period after the Commission like all other payments usually do.

PN138

Now, are you talking about your state of mind at the time of registration or around that time, or at the time that the 2880 was first advanced?---The 2880, at the time of that 2880 I was under the impression that that would have been paid the first pay period after the Commission.

PN139

I don't think there's any dispute about the membership endorsing, or the employees endorsing the agreement by a majority of two across the sites?---Yes, it was, yes. It got through by about two votes, yes.

PN140

If the membership had have understood - and I'm asking you to speculate a little bit here of course?---Yes, okay.

PN141

If the membership had have understood that the payment was going to - - -

PN142

MR HEELAN: I object to these questions.

PN143

MR MCLANE: On what basis?

PN144

MR HEELAN: Getting very close to leading a fair bit in his questioning of this witness and in my submission he's starting to go too far. May it please the Commission.

PN145

THE COMMISSIONER: I think it's getting into speculation. Witness, we don't want a matter of - what, you're seeking an opinion here or you're seeking an - - -

PN146

MR MCLANE: I'm seeking an opinion, sir, is a better word, and it's an opinion of somebody involved for many years in the negotiations with a particular membership that would be able to say in some qualified way - and speculation is the wrong word, I've said the wrong thing - would be able to quite accurately identify what the result of the meeting would have been had that information been known. And the reason that I say it's relevant is because of the obligations the Act places on the employer to ensure that the work force understand what they're voting on, 170LJ.

**** JOHN KEELEY XN MR MCLANE
PN147

THE COMMISSIONER: Isn't that a different question? If you want to ask questions about what was explained to the membership at the time I think I'd allow that.

PN148

MR MCLANE: Thank you, sir.

PN149

Did anyone from the company to the best of your knowledge explain to the membership or the employees who voted on the certified agreement how the 2880 would be paid? And I'm talking about the time it was going to the vote.

PN150

THE COMMISSIONER: This is the second time?

PN151

MR MCLANE: The second time, yes?---I can't recall the 2880 being - Pat Watt attended the second meeting we had and he gave us information about the EBA. I cannot recall the 2880 being mentioned at that meeting before that vote. Sorry, the vote was for the CA, the vote we had for the 2880 that was not attended by any of the company representatives, that was attended by the union, our representatives, and what was coming out of that meeting was that the six monthly payment would be as of the first pay period.

PN152

Okay, and that's how you explained it?---That's how it would have come across to the members.

PN153

And what would have been their reaction or the result if they had have known that it was to be paid in arrears?---Given what was happening especially at Pinjarra out in the refinery with the other work groups and the fact the vote only got through by two, I definitely believe it would never have got up, no way in the world.

PN154

Thank you. If I could just have two seconds, sir. I have no further questions, sir.

PN155

THE COMMISSIONER: Thank you. Yes, Mr Heelan?

PN156

MR HEELAN: Thank you, sir.

<CROSS-EXAMINATION BY MR HEELAN [10.25AM]

PN157

MR HEELAN: Mr Keeley, the negotiations spanned a period of over a year, is that correct?---Yes, it would have been over a year. We started six months prior to our EBA running out.

**** JOHN KEELEY XXN MR HEELAN
PN158

And you were involved in all of the discussions and negotiations?---Probably missed one of the meetings, maybe two.

PN159

That's the meetings, but stuff goes on behind the scenes doesn't it?---Yes.

PN160

Were you involved with all of that?---Not with - the company were having meetings by themselves. Most of our meetings, I think all of our meetings were actually off site meetings with the company except at times when the company allowed us say half a day to get some things together before they met with us.

PN161

If there were discussions going on, let's say by telephone between the company and the union representatives, would that involve you?---Not at all times, no.

PN162

Most times?---Report backs yes, most likely, yes, but I don't know how many, I'm not sure how many - how much the conversations were carrying on.

PN163

If there was something in relation to the negotiations that the company wished to follow up with the union would the company representative ring you or would they ring Mr Gary Wood?---We are - well, it depends what was going on. At the time there were actually - the wording of the EBA, there was a group together sitting down and that was Bob Ryan and Gary Woods and the ex Commissioner, we're sitting down trying to get the wording in the EBA together and they were getting that together. The other things that were going on I dare say would have been touched on with other reps et cetera, but whatever happened or whatever touched on was touched on, had to come back to the main group.

PN164

Why?---Why? Because we are the negotiating group.

PN165

Says who?---Whatever would come back would have to come back to the members to vote on.

PN166

To the members?---To members to vote on at the end of the day.

PN167

In terms of the certified agreement?---In terms of the certified agreement, yes.

PN168

But wouldn't it be logical if a company representative wanted to discuss a particular aspect of the certified agreement wouldn't it be logical for the company representative to ring the secretary of the union?---If I was the company, yes, I'd touch bases with probably most people that were sitting on this group, on the group.

**** JOHN KEELEY XXN MR HEELAN
PN169

I didn't ask you what you would do?---Okay. Well, I don't know what the company would do either.

PN170

Your involvement in these negotiations, was that as a representative of the union?---Yes.

PN171

Now, as I recall it your responses to Mr McLane, you said that URO was not part of the first agreement?---The URO was not part of the vote when we met as far as the URO payment was not part of it. UROs, there was always going to be a URO component in it but it would have had to have been at the - the company would have had to work out a way of covering those positions if they were vacant. It wouldn't have been our responsibility.

PN172

Now, you said that the first proposal in relation to the $2880 incentive payment was put by Mr Bob Ryan and the Meadow Springs Golf Course?---Yes, the conference room, yes, because normally they were held at another venue.

PN173

At the Meadow Springs Golf Course, yes, where Mr Ryan put it to you?---As far as I can recollect, yes.

PN174

What do you mean by that?---What do I mean by?

PN175

As far as I can recollect?---Okay. To the best of my knowledge that's when it was put to us, yes.

PN176

When was that?---The date?

PN177

Well, when was it?---I'm surmising somewhere around June, July, somewhere around there.

PN178

Do you know?---I haven't had the records, I don't have the records, I wouldn't know.

PN179

June or July?---It may be somewhere around there, yes.

PN180

It may be somewhere around June or July 2005?---Well, it was - - -

PN181

Is your answer maybe somewhere around June or July?---I'm trying to get the dates - I'm trying to work the dates back from all the meetings we've had, and I believe it would be somewhere around June or July.

**** JOHN KEELEY XXN MR HEELAN
PN182

You believe it would be somewhere around June or July 2005?---Yes, 2005.

PN183

And you think it was at the Meadow Springs Golf Course?---Putting the date aside I definitely, now I am definitely sure that Bob Ryan raised the 2880, come to the table at the Meadow Springs Golf Course. The date I'm sorry I cannot zero in on.

PN184

And what did Mr Ryan say?---Do you want a bit of past before I answer that?

PN185

No, I just want you to answer the question?---Okay then, no worries. Word for word I cannot tell you, but it was along the lines of the company was going to offer 2880 to cover up to four URO payments.

PN186

And what did he say about the up front nature of the payment?---I can't recall him saying as an up front payment. I can only recall that the 2880 was on offer and there was four UROs, we had to do four UROs to be - - -

PN187

Just so we're clear on this, you cannot recall Mr Ryan saying anything about the payment being up front?---I cannot, no I can't. I can't recall it saying that you're going to get paid up front.

PN188

Okay. But you thought that that's what Bob meant, that was what was in your mind?---Yes.

PN189

You thought the payment would be paid up front?---There was nothing said to say that it was going to be in arrears.

PN190

Mr Keeley, you thought, your evidence is that you thought the payment would be up front?---That's right.

PN191

How?---All payments, all other payments we've had through the Alcoa systems, right, have been up front as such. Like when we go to the Commission, and take this latest example, we went from a 12 to a 12½, that payment kicked in up front from the first pay period after we left the Commission, and that's the way they've always done business there.

PN192

Can you just explain that one in a little bit more detail?---Before this current agreement come into play we were a job grade 12, and when the agreement was ratified in the Commission we were offered a job grade 12½, which is an increase in our pay, our current pay. That payment kicked in as of the first pay period after the date of the Commission.

**** JOHN KEELEY XXN MR HEELAN
PN193

So am I correct in understanding that the agreement was certified by the Commission, you then got a higher job grade and you work in that higher job grade, and then your first pay period after the certification of the agreement you received an increased rate of pay?---We increased - an increase in pay as of the first pay period after the Commission date.

PN194

After the certification of the agreement?---After the certification, yes.

PN195

So following the certification of the agreement you worked some time and then the next pay period you received the increase and that was retrospective from the date of certification, is that correct?---Our pay increase kicked in as of the first pay period after the Commission, we were in the Commission.

PN196

Yes. So just take a timeline. We have the Commission certifying the new agreement?---Yes.

PN197

We then have you working in this new capacity?---The new capacity, nothing had changed to what we were currently doing.

PN198

You had been working under the new arrangement?---Under the new arrangement.

PN199

Yes, correct? So we have the certification, we then have you working under the new arrangement?---We have us working under a new agreement.

PN200

Yes, and the new arrangements?---You explain on the arrangements.

PN201

For example in relation to the pay increase?---The pay increase, yes, we got - yes, we were paid an extra half per cent job rate and - - -

PN202

For example in relation to appendix A7, that's one of the new arrangements included in the new certified agreement isn't it?---That was the new arrangement, yes, it was.

PN203

Yes. So we have the Commission - back to the timeframe, we have the Commission certifying the agreement?---Yes.

PN204

We then have you working under those new arrangements, we then have a pay period, being the first one after certification?---Yes.

**** JOHN KEELEY XXN MR HEELAN
PN205

And from that pay period you are paid retrospectively back to the date of certification for having worked under the new arrangements?---Yes, for working under the new agreement, yes.

PN206

Is that correct?---Yes, working under the new agreement.

PN207

And you say that that's an up front payment do you?---It's a payment.

PN208

In arrears isn't it?---I'm sorry, you better explain how it can be in arrears.

PN209

You do the work first under the new arrangements and then you get paid for it?
---We were getting paid as of that pay period because my understanding is the Commissioner instigates the CA agreement as of the first pay period, so from that first pay period when the new agreement's in force that is when we would get paid at those rates.

PN210

But when do you get paid? Do you get paid from the date the Commission certifies the agreement or do you get paid from your usual pay periods?---The Commissioner, my understanding is the Commissioner certified the agreements to tie into our pay periods.

PN211

MR MCLANE: That's really a question for submissions if at all I think, sir. I don't know what it adds and object on the basis of relevance.

PN212

THE COMMISSIONER: I think it's relevant, but I think he's answered two or three times, as I've heard, that it was paid, the new arrangements which applied from the first pay period to commence on or after the date of certification was paid at the normal pay period in respect of all arrangements other than the A7.

PN213

MR HEELAN: Yes. Perhaps I won't pursue. But the way I understand it, Commissioner, is that Mr Keeley regarded that as an up front payment.

PN214

THE COMMISSIONER: Yes, I understand that.

PN215

MR HEELAN: And in my submission it simply couldn't be. In my submission the employees would do the work under the new arrangements.

PN216

THE COMMISSIONER: Yes. Well, you've got to the facts, we know the facts.

**** JOHN KEELEY XXN MR HEELAN
PN217

MR HEELAN: Back to the Meadow Springs Golf Course. How did you think the allowance was going to be paid up front?---As I've touched on earlier, if it wasn't going to be up front the company would have said something.

PN218

What? You don't know do you?---If something was going to be in arrears it would be - surely you'd say - okay, to give you an example. When the incentive bonus come into play which was wheel and power between the three power stations we were told that payment would be paid quarterly and we were told in no uncertain terms that that payment would be in arrears. In other words once we started doing it every quarter we would be paid. There was no grey areas there. It was told up front that's how the payment was going to be paid.

PN219

How did you think the 2880 incentive payment was going to be paid?---It was going to end up in your pay packet.

PN220

Up front?---It was going to end up in your pay packet up front, yes.

PN221

That's what you thought?---Yes. And why wouldn't I think that way?

PN222

And how was it going to end up in your pay packet?---It would have ended up in your pay packet as itemised as URO coverage.

PN223

So each pay, each fortnightly pay - - - ?---No, no, no. It would be itemised. It would be one lump sum payment and it would be itemised. When we first went to annualisation we got up front payments in that.

PN224

No. You had a transition payment with that?---Yes.

PN225

Okay, just back to the issue. You thought it would be one up front payment?---At that, the Meadow Springs Golf Course, when I was sitting there that was my thought at the time, yes.

PN226

And that was your very clear thought?---Yes.

PN227

Even though Mr Ryan hadn't actually said that?---No. That's what was put out. The 2880 for four UROs, and if no one said anything different as far as it was in arrears - if it was said in arrears I'm sure it would have noted and alarm bells would have been ringing.

**** JOHN KEELEY XXN MR HEELAN
PN228

Why?---Why? Because at the time all these negotiations were taking place we've got unions out in the refinery actually getting paid for coming in on coverage, and we wanted that payment as well, and it wasn't flowing on to us.

PN229

Sorry, what payments were made to unions?---Other unions on the site were actually getting a payment for coming in on their days off.

PN230

I put it to you Mr Keeley, Alcoa doesn't make payments to unions?---Okay, to union members.

PN231

To its employees?---To employees, sorry, yes, employees.

PN232

MR MCLANE: Alcoa does make payments to some of their members.

PN233

MR HEELAN: Back to how you thought - I object to that. It's on the record, I want my objection recorded, Commissioner.

PN234

THE COMMISSIONER: Do you wish to withdraw that Mr McLane?

PN235

MR MCLANE: Yes, I withdraw it, sir. Sorry, I apologise, sir, if it's on the record. It wasn't meant to be on the record.

PN236

MR HEELAN: Thank you, Commissioner.

PN237

Back to the $2880 incentive payment which you thought would be paid in advance, how did you think it was going to be paid in advance?---As I just touched on, with what was happening out in the refinery with the other union members and the fact that to the best of my knowledge no one, Bob Ryan or Pat Watt at that meeting at that day said it was going to be in arrears.

PN238

So did you think the company would make a payment of $2880 upon certification of the agreement?---At the first pay period as we touched on earlier, yes.

PN239

Just put $2880 in your bank account?---Exactly, into my pay slip, yes.

PN240

Into your bank account?---Mm.

PN241

Just the one off $2880 payment?---Yes.

**** JOHN KEELEY XXN MR HEELAN
PN242

And then in a year's time do the same thing?---Yes. And in a year's time I dare say if the guys weren't pulling their weight or whatever, they had a problem, I'm sure they would have contested it.

PN243

Okay. And so it would just pay the $2880 up front?---Yes.

PN244

From the date of certification of the agreement?---Yes, first pay period, yes.

PN245

And do the same thing in 12 months time?---And do the same period at the certification date.

PN246

That's clearly what was in your mind at that time?---Yes, every 12 months.

PN247

And that's clearly what was in - sorry. Was that what was in your mind at the time you voted on the agreement?---No. At the time when we voted on the agreement a few things had changed. We were getting - they'd be paid six monthly.

PN248

So it changed?---Yes.

PN249

So what caused that change?---What caused the change was there was other negotiations taking place at the time on other issues. We parked that, the 2880 side of it, because we actually come back with a counter claim, four counter claims which were all rejected. And from that we ended up with paperwork on the table floating around the control room, and in that paperwork there was six monthly - two payments six monthly.

PN250

THE COMMISSIONER: Can I ask a question? Was that paperwork union paperwork or is that the paperwork which you said was prepared jointly by Mr Laing, Messrs Laing, Wood and Ryan?---The paperwork was sent out by a Bob Ryan from the company and they were in the form of draft CAs that the troops could look through and check through and then feedback to the reps.

PN251

You referred earlier to certain paperwork, I thought you said Messrs Laing, Wood and Ryan were writing the paperwork for the agreement?---Yes, that's right.

PN252

So the authors of this paperwork that you're talking about where you first saw the six monthly, the authors of that to your understanding is Messrs Laing, Wood and Ryan, is that right?---Commissioner, Mr Laing, Mr Ryan and Mr Wood were actually getting the - fine tuning the paperwork for the CA as to clarify a lot of points that they had to change, so Bob Ryan I dare - the company was sending paperwork out with those changes in it and they were coming around on the table. So there was several drafts floating around at the time because there were a lot of changes and new drafts were coming out at all times, and that come on the table circling around to the members.

**** JOHN KEELEY XXN MR HEELAN
PN253

So some drafts could have been - some of this paperwork could have been from Mr Ryan and some of the paperwork could be after the fine tuning?---Well, at one stage there was a bit of a kafuffle because some paperwork that was floating around on the table at the time was actually very old drafts that shouldn't have been circulated and they had to be recalled. So to touch on the point you're making, some of the paperwork was coming from Bob Ryan, from his records, and some would have been from the records compiled, or the paperwork compiled by Bob Laing, Bob Ryan and Gary Woods.

PN254

Back to you Mr Heelan.

PN255

MR HEELAN: Thank you, Commissioner.

PN256

Mr Keeley, was Bob Laing, being the retired Commissioner, was he involved in the negotiations in relation to appendix A7 as it appears in the current certified agreement?---I don't think he was because there was some of them he couldn't turn up to and, as I said earlier on, the appendix 7, the 2880 was parked while a lot of issues were resolved.

PN257

You don't think he was is the answer?---I don't think he was part of the 2880.

PN258

Was Mr Laing's role a company representative or was Mr Laing there as a mediator?---He was - both parties agreed to have him there, yes, to sit in on the hearings, to sit in on the talks.

PN259

Back to the question. Was Mr Laing there as a company representative or was he there as a mediator?---He would have had to have been there as a mediator.

PN260

It seems to me the main complaint of the employees is that they're required to work extra shifts for URO coverage and then they won't get paid for having done that work for six or even up to 12 months after working the extra shifts. Is that the nub of the complaint?---Yes. If they're required to work these extra shifts under that 2880 agreement, right, and what they voted on, yes, they certainly wouldn't have been happy to do that.

PN261

But the employees see it as unfair that they work the time now but don't get paid for it for some months down the track?---Yes, yes.

PN262

And if they were to work three URO shifts in the first couple of months following certification of the agreement they get paid for two of those down the track a few months, but the other one they wouldn't get paid for nearly 12 months later when they received the second incentive payment. Is that one of the main causes of the complaint?---So you elaborate on that, you're saying if we got the six month payment up front you're saying?

**** JOHN KEELEY XXN MR HEELAN
PN263

No. I'm talking about as things are?---As they are now the only payment as far as I'm aware we received so far is 537 which was a pro rata payment.

PN264

But the complaint is - my understanding of the complaint is that employees feel it's unfair that they work the extra shifts for URO coverage now but they don't get paid for them until some months after they work them?---Yes.

PN265

And there could well be circumstances where if an employee were to work say three or four - let's take an extreme example here?---Okay.

PN266

Let's say that within one month of certification of the agreement a particular employee had worked four URO shifts pursuant to appendix A7 of the agreement, am I right in assuming one of the big causes of complaint here is that that employee would feel that it is unfair that he or she would not get paid for the first two of those until down the track some months until the first payment is made, but for the other two that he or she has worked you have to wait almost a year when the second payment is made before effectively it's made up to him or her?---Yes. Their understanding was the same as mine, and that was that the payment was going to be paid the first pay period after the Commission, and if we happened to get hit with four URO coverages within that first six months then yes, you would have had to wear it because that was the nature of the URO payment as we saw it.

PN267

But Mr Keeley as things currently are you get paid the allowance in arrears, correct?---Currently as it stands at the moment the only thing we've received at the moment is a pro rata payment of $537-something, and that was in today's pay period.

PN268

And was that paid in advance or in arrears?---If you're looking at it from our point of view.

PN269

Let's look at it from a factual point of view?---Well, it's in arrears as of our claim which is it should have been paid the first pay period.

PN270

That's your claim isn't it?---Yes.

PN271

Your claim is you want it paid up front six monthly in advance, that's your claim?
---Exactly.

PN272

And the reason for that is that employees think it's unfair that they work the shifts now and have to wait months to get paid for them?---That's right, yes.

**** JOHN KEELEY XXN MR HEELAN
PN273

And that's the central issue isn't it?---Yes.

PN274

And so far what you've received, or the way it currently works is you get paid your allowance in arrears some months down the track?---We have yes, up to date, yes.

PN275

Up to date. And your claim is to change that?---Our claim is, yes, that we would like the company to honour - - -

PN276

Your claim is to reduce the period between doing the work and getting paid or in fact eliminate that delay?---Our claim is, yes. Our claim is it should have been paid six months earlier and then the next payment should be April.

PN277

But the central issue here is the feeling of the employees about the unfairness of working the extra shifts now and then not getting paid for that time until some months down the track, that's the central complaint isn't it?---Yes, for the URO coverage, yes.

PN278

Yes. They work the time now, they've got to wait months before they're paid for it?---Yes.

PN279

Now, you touched on what's known as the annualised pay package arrangements which we will refer to as APP, which came in in 1992?---Yes.

PN280

From that point on in time you went to new arrangements based on 12 hour shifts and a salarised approach to remuneration?---We were already on a 12 hour shift.

PN281

At that point in time did you go to 12 hour shifts and a salarised approach to remuneration?---Yes, we went to a salary approach system, yes.

PN282

And under those arrangements there was a requirement to work extra hours?
---There was, yes, there was a requirement that you could work extra hours. The company did not want you to work extra hours.

PN283

But that you may be required to work extra hours?---May be required to work extra hours.

PN284

As part of getting your job done?---At the time when the talks were taking place the annualised - the APP package was mainly set up for the refinery system where, as it was put to us at the time by Geoff Hayward, the current manager, or the manager at that time, that if things had to be done, if things were going to spread over the shift period out in the plant then just park the job and get someone to do it the next day. They did not want the overtime component side of it.

**** JOHN KEELEY XXN MR HEELAN
PN285

Under the APP arrangements employees could well be required to work extra time?---They could, yes, they could be required to - in our case they could be required to stay back in emergency situations.

PN286

To get their job done, is that correct?---Well, it depends what you call get their job done, because we have people coming in and covering the shift and we're relieved. So if the place went black or whatever then the guys would be expected to stay back and help put the power station back on.

PN287

APP introduced a whole of job concept did it not?---Yes, it was. It was the whole of the job, yes, that's exactly right.

PN288

Yes. And as part of employees fulfilling the requirements in relation to the whole of job they may be required to work extra time?---They could be required, yes.

PN289

And payment for that was built into the APP salaries wasn't it?---Under the APP salary system my understanding of that was that you would be - your job would be classified under a hay pay system and from that you were given a dollar value or a job grade. It could be a 12, 11 or a 10, whatever. The powerhouse guys come in at a 12. We still retained our allowances and everything else.

PN290

THE COMMISSIONER: The question is not about that. The question is about if you are required to do additional work to cover someone's absence at that time whether you got any additional pay or it was regarded as being part - compensated as part of the overall salary package?---No. Initially there was - initially there was no payment and the members actually, yes, did come on their days off and covered.

PN291

Yes. Thank you?---Sorry, just I thought we've already covered all this.

PN292

MR HEELAN: So what was included in the APP salaries?---As far as - - -

PN293

There was a buy out of overtime entitlements wasn't there?---It was a way of controlling overtime.

PN294

There was a buy out of overtime entitlements wasn't there?---No, I don't agree with that. I don't agree it was a buy out of overtime components. I agree it was a whole of the job concept where if the job couldn't be completed at the end of the shift the job was parked as opposed to prior APP the job would be extended or the groups had the ability to actually continue on with the job and claim an overtime component.

**** JOHN KEELEY XXN MR HEELAN
PN295

You were on the negotiating committee weren't you?---I was on that committee, yes.

PN296

You'd have a good idea of what the certified agreement prescribed?---Word for word, no.

PN297

But you would have been involved in the negotiations?---The negotiations that took place at the Pinjarra were the whole of the Pinjarra union movement off site, yes.

PN298

In relation to powerhouse employees you would have taken place in the negotiations?---Yes.

PN299

You would have participated in the ballot?---Yes, we had a vote on it, yes.

PN300

Were you a shop steward at the time?---Yes, I was.

PN301

Presumably you recommended it to the members?---Yes, I would have at the time, yes. Well, recommended? I would have put the options over to the blokes and it would have been up to the troops to vote whether it was good or bad.

PN302

I'd ask that the witness be shown a document, Commissioner. The document is included in document 27 from the bundle that we filed. Might I say there are three documents in that part of the file. The first is headed private and confidential, and I do not propose to go to that. And then about 10 pages in there is a document on an Alcoa of Australia Limited letterhead dated 27 July 1992, and it's a letter to Mr William Elliott, department W73, Wagerup Refinery.

PN303

THE COMMISSIONER: Yes, I have that document.

EXHIBIT #H1 LETTER TO WILLIAM ELLIOTT DATED 27/07/1992

PN304

MR HEELAN: Mr Keeley, do you know a Mr William Elliott?---No, I don't.

PN305

A powerhouse employee at Wagerup?---No, I don't know him.

PN306

The document in front of you is that typical of an APP - sorry, a contract of employment for powerhouse employees as a result of the implementation of APP?---We were sent out a contract similar to this but I don't know if these are the correct details of what we were sent out.

**** JOHN KEELEY XXN MR HEELAN
PN307

Perhaps just to help you I might try and refresh your memory. I don't propose to rely on this document other than for the purposes of assisting the witness, Commissioner, but I'd ask that Mr Keeley be shown another document which is his own personal APP contract of employment.

PN308

THE COMMISSIONER: Do you wish to tender that Mr Heelan?

PN309

MR HEELAN: Ideally I would like to, Commissioner, but I'm mindful of the directions that you issued. It's not a document that we included in our bundle. Not knowing who would be being called by the union we simply included a couple of pro forma contracts of employment, but ideally we would like to have it included in the record of proceedings.

PN310

THE COMMISSIONER: It's not dissimilar to exhibit H1.

PN311

MR HEELAN: No, sir.

PN312

THE COMMISSIONER: If there's no exhibit?

PN313

MR MCLANE: No, sir.

EXHIBIT #H2 LETTER TO JOHN KEELEY DATED 15/10/1992

PN314

MR HEELAN: Mr Keeley, is the document you have in front of you your employment contract with Alcoa?

PN315

MR MCLANE: I object to that question. It's not for the witness to say whether this is his contract or not. If we're going to debate whether it's his contract or part of his contract we're going to be here for a long time. I think the question is, is that the letter that was sent to you, fair enough. But what it actually forms in the contract or the contractual relationship I don't think is a question for the witness and I don't think it's an issue.

PN316

THE COMMISSIONER: You don't wish to prove whether it's a contract do you Mr Heelan?

PN317

MR HEELAN: No, sir. I'm happy to rephrase it.

PN318

THE COMMISSIONER: Rephrase it, thank you.

**** JOHN KEELEY XXN MR HEELAN
PN319

MR HEELAN: Rephrase the question.

PN320

Mr Keeley, is the document you have before you, exhibit H2, is that a letter dated 15 October 1992?---Yes, it is, yes, and it's got my name on it.

PN321

Addressed to you?---Yes.

PN322

And the letter sets out:

PN323

Dear John, over the past several months your elected representatives and the company have been discussing the introduction of the annualised wage package at the Pinjarra powerhouse. Key elements of the new wage package are summarised as follows. Annualised wage, increased base wage and shift allowance, increased annual leave loading, increased long service leave loading, increased superannuation benefits, mileage allowance, transition payments. Key changes to working arrangements and conditions will be in the areas of no restricted practices, contractors, working additional hours, acceptance of training, job description and appraisals.

PN324

The letter then goes on to set out your new base rate and total compared to what you were on previously, is that correct?---I'm not sure if the figures are correct, but that's what you're reading is what I'm reading, yes.

PN325

Do you recall getting a very substantial increase in your remuneration as a result of the introduction of APP?---Well, when the APP was taking place we knew exactly what we were going to get or what was on offer.

PN326

My question is, do you recall getting a substantial increase in remuneration as a result of the implementation of APP?---Yes, there was an increase. There was an increase in pay, yes.

PN327

Substantial?---Without crunching the figures back there, going by the figures I have in front of me it looks like $7000.

PN328

Does that sound right to you?---In what way?

PN329

Does it sound right to you?---The figures here, yes, it looks like $7000. Well, it's got here nearly $7000 increase under the new APP system.

**** JOHN KEELEY XXN MR HEELAN
PN330

Can I ask you to turn to the third page Mr Keeley, about just after halfway down the page. It says:

PN331

The annualised wage includes a requirement to work extra hours, and hours for which - - -

PN332

?---Sorry, is it the third page? It's just that I've got one page, page one, page three, there's no page two.

PN333

In the third page of what I've given you?---Okay, no worries.

PN334

It's the page headed "In summary the other benefits are."

PN335

THE COMMISSIONER: Sorry, has the witness got the four pages? Have you got a letter of four pages?---I've got four pages and on the top of my pages I have 01, 03, 04 and 05.

PN336

Yes. I think he's referring you to the one that's 04.

PN337

MR HEELAN: That's correct, sir?---Okay, 04.

PN338

THE COMMISSIONER: On the bottom left hand side it should say
page 3?---Okay then, no worries. In summary, yes, sorry.

PN339

Just after halfway down the page it says:

PN340

The annualised wage includes a requirement to work extra hours, hours for which you would currently receive overtime payment and travelling time, there will be no payment for extra hours worked nor will there be travel time payment when working those extra hours in the new system. By entering this new system which provides for an annualised wage, regular increases, substantially increased leave provisions and superannuation benefits there is no place for the imposition of restricted practices of any sort.

PN341

Is that what you negotiated with APP?---When we negotiated the APP it was tied into that stuff. But if you want to look at the background that went with all that, as I said previously, Geoff Hayward, the whole idea of the APP was he did not want the guys to work overtime. So the idea was if there was overtime out there it would have been - if guys were meant to come in on their days off and do coverage then the groups would have to sit down at the time through the consultative committee and work out a way to stop it. Overtime was not wanted in the Alcoa system at that time. That was what they were pushing.

**** JOHN KEELEY XXN MR HEELAN
PN342

They bought it out didn't they?---They bought it out. They changed their practices, they changed the way we do business, they changed the way we worked and - - -

PN343

They gave you a lot more money?---And we gave them a lot more benefits.

PN344

They gave you a lot more money and as a result you lost your entitlement to overtime?---Yes, we did. We lost the ability to claim overtime payment, yes, you're right.

PN345

And a number of other factors as well, correct?---Other factors as in?

PN346

Well, you were on the negotiating committee?---Well, you're asking the questions.

PN347

Providing URO cover for example?---Yes, we were going to provide the URO cover.

PN348

You would provide additional shifts?---Yes.

PN349

To cover URO?---Yes.

PN350

And you would do that on the basis of not getting any additional payment for it?
---Yes. But there was the integrity that powerhouse went with that as well because there was manning levels tied up, there would be minimum manning levels in the power station and we would maintain those minimum manning levels.

PN351

Let's just come back to the issue. APP, the agreement that you were involved in negotiating in 1992, the APP certified agreements required powerhouse operators to provide URO coverage, correct?---The operators gave a commitment to do the coverage, to cover the powerhouse manning levels.

PN352

Let me put the question again. The APP certified agreement that you were involved in negotiating required the operators to provide URO coverage?---The powerhouse agreement had, yes, we had to - - -

PN353

Yes. The answer to my question, is it yes?---Yes, we were required.

PN354

Under that certified agreement you were required to provide URO coverage?
---Yes, we were required.

**** JOHN KEELEY XXN MR HEELAN
PN355

And you received no payment for that extra work?---We received no payment.

PN356

Because it had all been bought out as part of the APP arrangements?---No.

PN357

No?---I would suggest to you that it would be along the lines that we were reefing our work agreement so that there wouldn't be a requirement to do coverage. The only time we might get hit with coverage would have been if someone was sick and we didn't have a spare man on shift to cover those positions or we didn't have the resources to cover them.

PN358

Let's come back to the issue. Following the implementation of the APP certified agreement in 1992 did powerhouse employees provide URO cover?---Yes, they did.

PN359

Did they do so, sorry?---Sorry, did you say prior or after?

PN360

As a result, or following the implementation of the certified agreements in 1992 did the powerhouse operators provide URO cover?---Yes, they did at Pinjarra, yes.

PN361

And did they do that by working extra shifts?---Yes, they did.

PN362

That is shifts in addition to the 36 hours ordinary they worked per week?---Yes, they did.

PN363

And did they get any payment for working those extra shifts?---Initially they received no payments.

PN364

Under the APP agreement Mr Keeley did they receive any payment?---Initially they received no financial return for it.

PN365

When you say initially was it, what, 1993 it changed or '94?---It changed down the track because what was happening, it seemed - - -

PN366

It was in the 90s when it changed, or had we turned the century by then when it changed?---I'd say within say two or three years after APP, may even be sooner. As soon as it was put in the system, it wasn't working out in the plant and they had to implement something to fix the problem.

**** JOHN KEELEY XXN MR HEELAN
PN367

Let's confine this to powerhouse?---Okay.

PN368

When did the arrangements in respect of the powerhouse employees change?---As far as the re-rostering?

PN369

As far as the re-rostering and time in lieu, was it this century or last century?---It was after we went to the Commission, after the APP went through in 1992.

PN370

Straight after?---Say a couple of years after.

PN371

Well, it did so by 1994 that the time in lieu applied?---Different powerhouses it was implemented at different rates.

PN372

But at your powerhouse?---At our powerhouse I'd say it would have kicked in within a two year timeframe.

PN373

Within two years?---Yes, I would say - I would suggest that, yes.

PN374

And how about Wagerup?---I'm sorry, you'd have to ask Wagerup that.

PN375

But you're confident that within two years, so by 1994 that the arrangements at Pinjarra had changed?---We might have had some form of in-house arrangement taken place, yes, I'd say so within that two year period.

PN376

When did the company agree to the change, was it last century or this century when the company agreed?---The company agreed to the change. At the time there was Bill Everett was the HR guy running the show and there was a lot of in-house documentation floating around. I cannot tell you exactly when the company signed off on it.

PN377

But that's when you were still covered by a certified agreement that required that URO coverage be provided?---We've had the same certified agreement for virtually word for word up until this last one.

PN378

THE COMMISSIONER: Mr Keeley, are you suggesting that time in lieu came in initially as some informal arrangement and was agreed to by the company at some later date? I'm just trying to understand what you're talking about here?
---What happened in the early days after we went through this APP, time in lieu, you weren't allowed to use that terminology time in lieu, it was frowned upon. It has to be re-rostering. Time in lieu is just the new - something new that's just come in the system over the last couple of years. So what happened back in the early days after we went on this APP, different section of the refinery, different unions were trying to run the new APP as the best they could with what was happening at the time. You must remember back then there was sections of the refinery that they could not get anyone to come in and do any coverage on their days off.

**** JOHN KEELEY XXN MR HEELAN
PN379

If I just talk to you about though in about the powerhouse people?---Yes.

PN380

Are you saying that there was some arrangement - you can call it whatever you like, I don't mind, but it's a re-rostering, so that prior to - it seems to me you're saying that URO cover immediately after the certified agreement came in there was no payment, no compensation over and above?---No, that's right.

PN381

Then you say at some stage there was an arrangement which I'll call time in lieu, but it's the re-allocation of hours?---Yes.

PN382

So if you do extra work you get the time off some other time. But my point is, are you saying that that came in through some informal process at a different time to what Mr Heelan is saying when the company signed off on this. Is there a distinction in your mind?---I would suggest that the powerhouse because we were the first ones to go on the APP at the Pinjarra refinery, and the powerhouse we actually started using re-rostering, the re-rostering policy, utilising our U days, which is a double shift, there's two shifts in. So if you were brought in on your days off to do coverage you would take a utility day off.

PN383

That happened you say a couple of years after the APP agreement, and are you saying it happened informally, are you saying that was done - - - ?---The company was - - -

PN384

I'm asking was there a distinction between when that was introduced and when the company approved of that arrangement, was it something which was going on informally without the company formally signing off?---It was ongoing.

PN385

Was it just something between the employees?---At that time - I know what you're asking, I can't give you the answer you're asking. All I can say is at that time the APP, different sections of the refinery, the management have the integrity, or have the ability to run the APP as they saw fit for their business centre. So at that time we actually - because what was happening out in the refinery where they couldn't get guys to come in and cover stuff or cover their position they had to implement something, and we ended up getting in our system, in the powerhouse system we ended up getting a re-rostering system in place where we could re-roster on our utility days.

PN386

I'm not sure I'm the wiser but I'll get back to you. I thought there might have been some distinction between when it came in and when the company signed off?
---Well, down the track there's been much paperwork put out about URO coverage over the last 10, 12 years, and it's changed without us being involved in the negotiations, it's just companies pushing paperwork out. So to respond to say I can give you a date when it was signed off, I can't.

**** JOHN KEELEY XXN MR HEELAN
PN387

No. I'm going to leave it to Mr Heelan and then Mr McLane to follow that up. I'm not sure I'm the wiser but I'll let you develop it.

PN388

MR HEELAN: Thank you, Commissioner.

PN389

Mr Keeley, do you know a Raymond John Watson?---Ray Watson, yes. He's the rep at Kwinana power station.

PN390

Sir, I'd ask the witness be shown a document, it's number 22 in the documents that were in the file?---Do you need these back?

PN391

You have before you Mr Keeley an affidavit sworn by Raymond John Watson in support of the application for certification of the certified agreement in this Commission?---Yes, I'm aware that he did put an affidavit in.

PN392

Another CFMEU representative Mr Paul Steele did the same thing?---Yes.

PN393

As did a number of company representatives, and indeed even me. If I could ask you to turn to paragraph 14 of Mr Watson's affidavit.

PN394

THE COMMISSIONER: Are we marking this Mr Heelan?

PN395

MR HEELAN: Yes please, sir.

EXHIBIT #H3 AFFIDAVIT OF RAYMOND WATSON DATED 22/09/2006

PN396

MR HEELAN: Sir, I note that the final page, the photocopying hasn't come out very well. I have brought the original.

PN397

THE COMMISSIONER: Mine's fine.

PN398

MR HEELAN: Mine's not, so I have the original with me if that's an issue.

**** JOHN KEELEY XXN MR HEELAN
PN399

Mr Keeley, I'd ask you to turn to paragraph 14. I've highlighted the second half of that paragraph for you where Mr Watson says - where Mr Watson's sworn evidence is:

PN400

In 2003 a day off in lieu of overtime was introduced even though payment of overtime was abolished in 1992. This day off had to be taken within a fortnight of performing the overtime. This is known as unrelieved operator cover (URO).

PN401

Do you agree with Mr Watson's sworn evidence?---That paragraph in 2003, I'm just reading it through now.

PN402

THE COMMISSIONER: Just give him a moment?---Yes, it seems correct to me. I can't agree with - just glancing over the rest of that paragraph 14, I have concerns with the opening start of that sentence.

PN403

MR HEELAN: Have I asked you about that?---Well, it's part of the paragraph 14 you want me to look at.

PN404

THE COMMISSIONER: Just answer the question. Mr McLane will have an opportunity to do anything further?---Yes, no worries. Yes, that seems okay.

PN405

MR HEELAN: You agree with Mr Watson's evidence?---Only that we were doing it at Pinjarra prior to 2003.

PN406

Ten years prior?---We were doing it prior to that, and as I said - - -

PN407

Nine years prior, eight years prior?---As I touched on earlier on - - -

PN408

MR MCLANE: Sir, he's already said when he believes they started doing it.

PN409

THE COMMISSIONER: Yes. Once more and that's it. As far as I know it's a couple of years after to the best of his recollection, and it wasn't this century it was last century. But it's crucial for Mr Heelan to understand when you, to the best of your ability, when you understand from your experience, not from your sort of, you know, thinking, from your experience when it came in?---From my experience at the Pinjarra powerhouse we were doing a form of re-rostering within two years of the APP. The supervisor at the time was Jack Renson.

**** JOHN KEELEY XXN MR HEELAN
PN410

MR HEELAN: Is that something that Mr Irving had agreed to? You do know Mr Irving do you?---At the time he was our refinery - our powerhouse manager, yes.

PN411

Is that something he was involved in?---Negotiations for APP mainly took place between Bill Everett the HR and the union group. John Irving attended a few of them. As far as the running of the powerhouse that was left to the supervisor which was Jack Renson at the time.

PN412

We're not talking about the negotiation of the APP now are we? We're talking about the - - - ?---Re-rostering policy?

PN413

- - - substantial change made to the APP principles after the implementation of APP, is that correct?---Yes, that's when things started to change.

PN414

THE COMMISSIONER: And we're only talking about powerhouse operators, not what's happening elsewhere in the refinery.

PN415

MR HEELAN: Certainly. Do you agree with paragraph 9 of Mr Watson's evidence?

PN416

THE COMMISSIONER: Just take a moment to have a read?---Paragraph 9, are you saying the structure of the Kwinana powerhouse prior to 1992?

PN417

MR HEELAN: Yes?---I can't agree or disagree. I work at Pinjarra, not at Kwinana powerhouse, it's a completely different operation.

PN418

How about the last sentence of paragraph 9?---Prior to '92 operators were paid overtime for all hours worked outside of ordinary hours, that's what we were getting paid at Pinjarra.

PN419

And that changed with APP?---Yes, it would have changed, yes.

PN420

With APP did not get paid for any hours outside of ordinary hours?---No, we weren't paid. We weren't paid if we come in on our days off.

PN421

If you came in on your days off to do URO cover you received no payment for that URO day?---That's right, we never received a payment.

**** JOHN KEELEY XXN MR HEELAN
PN422

Because you got substantial increases with the implementation of URO - with the implementation of APP?---I know you keep going back there, but as I suggested earlier on, it wasn't a one horse race. Where we picked up financially we actually gave a lot back to the company.

PN423

You traded off your overtime?---No, we didn't. We traded off other things.

PN424

MR MCLANE: Sir, I object to this. Whether it's substantial or not - - -

PN425

THE COMMISSIONER: Mr Heelan, I think we've gone far enough on that. We'll leave the rest for you to make submissions.

PN426

MR HEELAN: Certainly. Mr Keeley, how did the time in lieu work?---Initially at Pinjarra, those two year periods after the APP went through, is that what you're referring to?

PN427

Well, for the first two years I understood your evidence to be that there was no time in lieu, that the employees simply worked additional shifts for the purposes of providing URO cover and received no payment for that extra work because that was part of APP?---I was under the impression I said that within a two year period the re-rostering policy came into play. I didn't give a specific date when it actually took effect. Within that two year period the re-rostering worked by, if blokes come in, if the operators come in on their days off to cover URO cover then the utility day, they took their utility day off, and that had no impact on the powerhouse manning levels.

PN428

And how long did that arrangement last for?---It's still going today in one form or another.

PN429

Was there then a change to a re-roster approach?---It was always a re-roster approach.

PN430

But only on a utility day?---Well, that's the only day we could use. We could only use our utility days initially and then, I can't give you the dates because there was many changes because the plant - I have to refer to the plant - the plant was introducing a form of re-rostering and their benefits or their changes were flowing on to us and it was having an impact on our re-rostering policy so we were sort of getting scooped into the plant wide re-rostering policy.

**** JOHN KEELEY XXN MR HEELAN
PN431

And how would it work? Would it work by a supervisor coming to you and saying, look Mr Keeley, we need you to work tomorrow, we know it's your rostered day off, we need you to work to provide URO cover, and then you'd work that additional shift to provide URO cover?---Most of the time URO coverage came about by a phone call from one of the operators to your home saying that we are down and would you be able to come in to work and cover.

PN432

Now?---It depends how much notice they were given, whether it was immediately or it might have been, you know, it might have been a shift down the track, whatever. It depends if someone was off for a full block, then what they'd do is they would go through the shifts off the call out board, they go through the shifts and they pick, say they need someone, because our shifts are two days, two nights, they might need someone for two day shifts, so they'd ring the shift that was on the call out and they'd try to get them to cover for the two day shifts and then move on to the nights, so on and so forth.

PN433

And so the worker would come in and do the URO coverage, work the additional shift?---He would come in and cover that shift, yes.

PN434

And then down the track take a utility day off?---Not down the track. We weren't allow to bank them. It was frowned up to bank your U day, your re-rostering or your days in lieu, whatever you wanted to call it. We had to take them as soon as possible and that was our first U day initially.

PN435

Within a fortnight was it?---Down the track they were the guidelines that started to come in. We had to - the plant wide formula, it was we had to try to get rid of the U days within a fortnight of having them.

PN436

Had to try?---Well, you had to try because depending on your manning levels et cetera you didn't have the ability to take them off. If you had a U day and you were going - if you had a U day on your roster and you were going to take that day back as your re-rostered day and the company had something on, then it was squashed, you weren't allowed to take that U day off.

PN437

What would happen, you'd take the next utility day off?---You'd try to pick another day down the track. Later on - - -

PN438

A utility day or a - - - ?---Later on it became a day when you had a spare man on shift that you could take it.

**** JOHN KEELEY XXN MR HEELAN
PN439

So not necessarily a utility day?---Later on down the track it wasn't, yes.

PN440

So an employee works the extra shift to provide URO cover?---Yes.

PN441

And then within the following fortnight tries to take the utility day in lieu of that day?---Yes, he would try to take it, yes.

PN442

But if for company reasons the employee can't take that utility day falling after having worked the URO cover then there's a mutual agreement comes in where you take an additional day off?---It might not be the company, it might be that on that U day when you are supposed to be coming in you might even be covering someone that's missing on the shift so you'd be filling that position as well.

PN443

Did you always get the days off after you worked the URO cover?---Okay. Yes, you got the days off after you worked, yes. Sometimes if we knew there was a U day coming up we could actually jump the gun on it.

PN444

What do you mean by that?---Well, what it means was that if we called someone in and they knew there was a U day coming up down the track we'd come in and work it, and so we'd take the U day off down the track to get to keep our 36 hours.

PN445

So how is that different?

PN446

MR MCLANE: Sir, I've been a bit reluctant to object to where it's all going. It's going into minute detail. It doesn't matter in my submission how days were taken, when they were taken and all the rest of it. The central issue was that some time after the APP came into being an arrangement was entered into, formal or otherwise, where people started to receive something from the company, ie, the time off for what they'd worked if they were able to take it. That's I think agree between us. And how, when, where and why merely attempts to muddy the waters in my submission.

PN447

THE COMMISSIONER: Thank you. Mr Heelan, we've got Mr Watson's sworn evidence to say it happened at the other refinery in 19-whatever it was, in 2003. Here it's being said that it operated something like, to the best of his knowledge, within a couple of years. I'm not sure in the light of what Mr McLane has stated, do you want to continue with this course?

PN448

MR HEELAN: Only for the purposing of establishing that with the changes to the APP system which led to the time in lie that that time in lieu was always given after the event.

**** JOHN KEELEY XXN MR HEELAN
PN449

THE COMMISSIONER: Yes. Mr McLane, that's admitted? It seems to me that's what the witness is saying.

PN450

MR MCLANE: That's the answer of the witness as I understand it.

PN451

THE COMMISSIONER: My recollection was that the evidence will show that it was frowned on, it had to be taken within a fortnight, and if it couldn't be taken within a fortnight it had to be pretty soon. But there was a tight rein on not letting them - they were certainly not allowed to be banked, had to be taken subsequently to the event. At this stage if you're going to go any further I need to know what a utility day is because I don't know what it is. Maybe I don't need to know, if that's what the point is. The point is it was always after the event, yes.

PN452

MR HEELAN: If it's accepted that there is no suggestion from the witness that the days in lieu could be taken in advance I need to take it no further.

PN453

THE COMMISSIONER: Very well, thank you.

PN454

MR HEELAN: Now, Mr Keeley, the negotiations - - -

PN455

THE COMMISSIONER: Except it was said, I say to you both, it was said that this arrangement is still happening today, which I think is an issue maybe. But apart from that, keep going.

PN456

MR HEELAN: Yes, thank you for jogging my memory on that one.

PN457

THE COMMISSIONER: I wasn't jogging your memory, I'm just trying to get to the bottom of this thing and move it along.

PN458

MR HEELAN: Mr Keeley, you say the time in lieu is still working today?---The re-rostering policy, yes, it's still in force today.

PN459

Whereabouts?---At the Pinjarra powerhouse, yes.

PN460

And in what circumstances?---Under the circumstances of URO cover and long time sickness et cetera.

PN461

So in circumstances outside of appendix A7?---Appendix A7 - - -

**** JOHN KEELEY XXN MR HEELAN
PN462

THE COMMISSIONER: I think that's what's being said isn't it?---Yes. This is where it's going to get confusing because - - -

PN463

Well, perhaps we can just - is there some way we can - - -

PN464

MR MCLANE: We're going to be here for four days.

PN465

THE COMMISSIONER: Well, A7 is clear that it doesn't apply to everything, there are some exceptions.

PN466

MR MCLANE: No, that's right. It's basically when something unplanned occurred, we concede that if that saves us another two hours.

PN467

THE COMMISSIONER: In the light of that concession is that necessary, Mr Heelan? I take it that the words in the agreement, unless someone says to me differently I'm going to assume that the rules as set out in A7 are those which will form the basis of the resolution of the dispute.

PN468

MR HEELAN: Yes. And that the witness' reference to re-rostering still working today is in the context of being outside the circumstances surrounding the incentive payment prescribed by A7.

PN469

MR MCLANE: That's correct.

PN470

THE COMMISSIONER: Yes, thank you. Thank you Mr Heelan.

PN471

MR HEELAN: Mr Keeley, the negotiations last year involved two different agreements did they not?---There was two agreements running, yes, side by side.

PN472

And two separate ballots?---Yes, that's correct.

PN473

Now, are you the convenor at the Pinjarra powerhouse?---I am now, yes.

PN474

The CFMEU convenor?---Yes, I am now, yes.

PN475

Were you the CFMEU convenor at Pinjarra at the time of the ballots on the certified agreement last year?---No, I wasn't. I was a deputy convenor, deputy steward.

**** JOHN KEELEY XXN MR HEELAN
PN476

You were the deputy then?---Yes.

PN477

And who was the convenor at the time?---Eric Pegg.

PN478

And Mr Pegg subsequently ceased to be the convenor?---Yes. He's no longer the convenor.

PN479

He resigned?---Yes.

PN480

MR MCLANE: Does it matter?

PN481

MR HEELAN: Yes, I think it does.

PN482

MR MCLANE: Look, on what basis does it matter?

PN483

THE COMMISSIONER: I think we're moving on to what was - how this - I think if we're moving on to the common - the time as to the objective framework of facts within which the agreement came into existence, that's fine by me.

PN484

MR MCLANE: Sure. No, I don't object to that, sir. But if it, you know, then leads on to, you know, who was in other positions.

PN485

THE COMMISSIONER: I'll let Mr Heelan continue for the moment, thank you.

PN486

MR HEELAN: Thank you, sir.

PN487

And had Mr Pegg been involved in the negotiations over the new certified agreement?---Yes, he had.

PN488

As the representative of the CFMEU?---Yes, both of us were, yes.

PN489

But he ceased to be a member of the CFMEU did he not and went off and joined another union did he not?---As far as I'm aware he has dual membership.

PN490

And the other union has attempted to represent powerhouse operators has it not?

PN491

MR MCLANE: Sir, it's going where I, you know, suspected that it might. What's it got to do with this? If Mr Heelan can't explain the relevance he should, you know, move on. What's it matter, you know? Where are we going to go, or are we going to go to, you know, the internal politics of unions and, you know, who opposed who and all the rest. It might be helpful.

**** JOHN KEELEY XXN MR HEELAN
PN492

MR HEELAN: No. I'll simply be going to the role of representatives of the CFMEU in the negotiations, Commissioner.

PN493

THE COMMISSIONER: Very well. What I think is, we've been going for a couple of hours, I think we'll just have 10 minutes. So we'll adjourn for a 10 minute break. If you would stay under oath thank you, Mr Keeley. You can leave the box but just stay under oath. I'll adjourn for 10 minutes.

<SHORT ADJOURNMENT [11.34AM]
<RESUMED [11.49AM]

PN494

THE COMMISSIONER: Thank you. Yes Mr Heelan?

PN495

MR HEELAN: Thank you, sir.

PN496

So Mr Keeley, your involvement in the negotiations in 2005 in relation to the certified agreements and the ballots was on behalf of the CFMEU as a representative of the CFMEU?---That's correct, yes.

PN497

And the first ballot being in relation to the first proposed certified agreement was held on 18 July 2005?---The first ballot was held at the atrium, in the conference room in the atrium, yes.

PN498

On 18 July 2005?---Yes, it was 18 July.

PN499

The agreement having been posted to employees on 28 June?---The requirement I believe was 14 days. We must have met those requirements otherwise the ballot wouldn't have taken place.

PN500

Was the ballot by show of hands?---Show of hands and a division.

PN501

And division. And a majority of?---About the same as the second one, about one or two. Two I think it was.

PN502

About two?---Yes.

PN503

And did Mr Pegg, the then convenor, recommend that employees vote to accept that agreement?

PN504

MR MCLANE: What does it matter, sir, whether he recommended or didn't recommend? That's something for the internal workings of the union. The fact is it was carried.

**** JOHN KEELEY XXN MR HEELAN
PN505

THE COMMISSIONER: Is there relevance Mr Heelan?

PN506

MR HEELAN: Relevance in my submission, sir, there's an obvious lead on question to that one. The relevance in my submission, sir, is the capacity of the witness in the negotiations, whether that was on behalf of the union or not.

PN507

THE COMMISSIONER: You're seeking to establish that the witness was a representative of the CFMEU in the negotiations?

PN508

MR HEELAN: That's the witness' evidence.

PN509

THE COMMISSIONER: Yes. Well, on that basis I'm happy for that to proceed. I thought it was going a bit further, but keep going and we'll see how you go.

PN510

MR HEELAN: Certainly, sir.

PN511

Did Mr Pegg recommend acceptance of the agreement voted on in July 2005, did he recommend acceptance to the members?---Are you asking whether he stood up and addressed the membership before the vote, is that what you're asking?

PN512

THE COMMISSIONER: No. He's asking did you recommend, that's all he's asking.

PN513

MR MCLANE: I'm sorry, sir, he's asking did somebody else recommend. He's not asking the witness did he recommend, he's asking the witness about what somebody else did.

PN514

MR HEELAN: Mr Pegg, the then convenor.

PN515

MR MCLANE: I don't see where that's relevant. There may be some relevance if he wants to ask the witness which way did he vote, but I'd still say it's of no relevance and, you know, with the greatest of respect, nobody's business outside of the union.

PN516

THE COMMISSIONER: I'm having some difficulty following the relevance Mr Heelan.

PN517

MR HEELAN: Perhaps if I approach the questioning differently, sir.

**** JOHN KEELEY XXN MR HEELAN
PN518

THE COMMISSIONER: Thank you Mr Heelan.

PN519

MR HEELAN: When the ballot was held on 18 July 2005 did you recommend the agreement be accepted by the members?

PN520

MR MCLANE: Well, I still - how can that be relevant in any way? It's just attempting to muddy the waters and lose everybody in detail, sir. The fact is the vote was carried and the agreement was duly certified.

PN521

THE COMMISSIONER: Earlier when you were examining the witness Mr McLane it came out that it was carried by a majority of two votes.

PN522

MR MCLANE: Yes.

PN523

THE COMMISSIONER: I assume it has something to do with that. I didn't understand the relevance too much then of - - -

PN524

MR MCLANE: I was very close.

PN525

THE COMMISSIONER: I presume it's in response to that. Yes, Mr Heelan?

PN526

MR HEELAN: To put it in context, Commissioner, this line of questioning is on the basis of the earlier evidence of the witness having acted as a representative of the union. The reason for my questioning is that a section 170LJ certified agreement is a particular character. It is an agreement negotiated between two parties, one being the union and the other being the employer. There is no direct role for employees in that process other than the requirement of the employees to have the opportunity to vote on it, as well as the other requirements under the Act.

PN527

The evidence of the witness was that the witness was acting in the negotiations on behalf of the union. This line of questioning is simply seeking to test that.

PN528

THE COMMISSIONER: Yes.

PN529

MR HEELAN: Mr Keeley, at the 18 July ballot did you recommend to members that they vote in favour of the agreement that was then before them?---At that meeting several people got up with for and against. I believe I might have said something along the lines of that I had concerns with parts of the agreement. Everyone had a say what happened or had the ability to voice their opinion and that's what the meeting was for.

**** JOHN KEELEY XXN MR HEELAN
PN530

But you had concerns with the agreement?---I had concerns, yes, with the content of the agreement.

PN531

As the deputy convenor?---Yes.

PN532

For Pinjarra?---For Pinjarra, yes.

PN533

And this was a meeting involving powerhouse employees for Pinjarra, Wagerup and Kwinana?---All three sites, yes. It was an all three sites mass meeting.

PN534

And at that meeting you expressed concerns about some of the content of the agreement?---Yes. I didn't go into the depth of it but I am sure that I raised concerns about voting for the agreement, yes.

PN535

What you were encouraging people to do was to vote against the agreement?---I was encouraging - I was giving my personal opinion, which was what was asked at the day of the meeting, anyone had concerns or anyone wants to voice their opinion and that, as you do at the union meetings or union pre-vote. That's what we did, we all did it. Whoever wanted to get up and say something they did.

PN536

And you had concerns?---I had concerns, yes.

PN537

You expressed those concerns?---I never detailed them I said that I had concerns with the agreement, yes.

PN538

And you made it clear that you would not be voting in support of the agreement?
---I am not sure I went along those lines. I'm not sure if I actually said I would not be voting for it.

PN539

What was the intent of expressing your concerns then?---Just as I guess to get the people to start thinking carefully before they made the vote, I think about all the information that had been floating around, think carefully before you make your decision on that vote.

PN540

Did the secretary of the union speak in support of the agreement?---Gary Woods, I don't believe he was committed each way. I believe he just addressed the meeting as being what was on the table, what the negative vote, what a positive vote, just a general overview of the whole situation.

**** JOHN KEELEY XXN MR HEELAN
PN541

Did any senior representatives of the union like, for example, the lodge president speak in favour of the agreement?---I can't recall the lodge president. You're referring to - - -

PN542

THE COMMISSIONER: Are you seeking to establish whether there was an agreement? I'm trying to work out - because I don't want to get into all this who said whatever at a union. I mean, I think that's beyond where I should be going. You know, LJ is fairly clear, there's an agreement made with an organisation and a union, and then there's a process for that to be approved. I just want to know why this is going there because I'm getting clearly embarrassed here wondering why I'm hearing chapter and verse of who is saying what at a union meeting.

PN543

MR HEELAN: My issue was that the evidence of the witness was that the witness participated in negotiations as the representative of the union.

PN544

THE COMMISSIONER: Yes, I heard him say that.

PN545

MR HEELAN: We've now got to the point where it seems clear that the witness, when it comes time to ballot on the agreement made between the union he was representing and the company.

PN546

THE COMMISSIONER: Yes. Well, he's said that he - well, you've got the answer to that haven't you, you've got the answer to what he said and what he did. Shouldn't we leave it at that?

PN547

MR HEELAN: Yes, I'm happy to leave it at that, sir.

PN548

THE COMMISSIONER: Thank you.

PN549

MR HEELAN: Now, the second agreement was posted to employees on 11 August 2005?---The August figure sounds correct, yes.

PN550

And a ballot was held on 2 September?---The one posted to the employees on that date had to be pulled, it had - the wrong document was sent.

PN551

By who?---By Kaye Butler the HR.

PN552

MR MCLANE: Sir, I just wonder where we're going here again. The facts speak for themselves. The document is a certified agreement of this Commission. That's where it stays unless it's something about the understanding that the witness had at the time or what he, you know, what he felt about, you know, what we're here for, the understanding in relation to attachment A7.

**** JOHN KEELEY XXN MR HEELAN
PN553

THE COMMISSIONER: Well, Mr McLane, thank you. If you're concerned about the time, I'm a little anxious about the timing, but Mr Heelan is an experience advocate and I'll allow him to go. But shortly, if we're going to be too much longer I'm going to have to start looking at the time and lunch hours and things.

PN554

MR HEELAN: Certainly, sir.

PN555

THE COMMISSIONER: Thank you, Mr Heelan.

PN556

MR HEELAN: The different between the two agreements was the second agreement contained the changes in relation to appendix A7 and contained the $2880 incentive payment?---Yes, that's what was - yes, that was the difference between the two agreements, yes.

PN557

At the ballot on the second agreement did you recommend it?

PN558

MR MCLANE: Sir, I object. It makes no difference what this witness did, whether he voted for, against or abstained and, with respect, it's none of the company's business. It's an internal process and he's entitled to have that respected.

PN559

THE COMMISSIONER: Thank you. Mr Heelan, are you trying to see as to whether or not the witness supported the agreement as a representative of the CFMEU?

PN560

MR HEELAN: That's correct, sir.

PN561

THE COMMISSIONER: Well, can we just keep to that.

PN562

MR HEELAN: Yes, sir.

PN563

THE COMMISSIONER: So what was his representative role? I don't want to know his personal - how he votes or what religion is. I just want to know as his representative role what did he do.

PN564

MR HEELAN: At that meeting as the representative of the CFMEU did
you - - - ?---As one of the representatives, yes.

**** JOHN KEELEY XXN MR HEELAN
PN565

Yes, as one of the representatives did you speak in support or against the second agreement?

PN566

MR MCLANE: Sir, once again it's - - -

PN567

THE COMMISSIONER: Well, he's asking the question as to whether or not he was a - what his role was in negotiating the agreement. I think that's what it is.

PN568

MR MCLANE: If that's where it stops, sir, I wouldn't be on my feet. But he says did you advocate a vote in favour or a vote against. And it's of no concern.

PN569

THE COMMISSIONER: I think it's of concern only - I'm not sure about the relevance, I'm keeping all of this in abeyance. I'm not saying anything is relevant or irrelevant, I said that clearly, and I was trying to avoid just what's happening here, that we're up and down and up and down.

PN570

MR MCLANE: Sorry for jumping up and down, sir.

PN571

THE COMMISSIONER: No. I think I will allow the questioning insofar as it is focusing on what the witness' role was as a representative of the CFMEU in the negotiation and carriage of the agreement.

PN572

MR MCLANE: Thank you, sir.

PN573

MR HEELAN: Thank you, sir.

PN574

As a representative of the CFMEU, one of the representatives of the CFMEU at the second ballot being in relation to the agreement as it was certified by the Commission, did you speak in favour of the agreement or not?

PN575

MR MCLANE: Sir - - -

PN576

THE COMMISSIONER: I think it is relevant to the extent that if it's saying whether there's an agreement or not an agreement. The context of all this is about what's going on at the negotiations or did we have an agreement at the time? And this is relevant to the extent as to whether or not the witness who was the negotiating person think they had an agreement or not. I take it that's what it's about.

**** JOHN KEELEY XXN MR HEELAN
PN577

MR MCLANE: Well, I understand it to be something different, sir, but that's fine.

PN578

THE COMMISSIONER: Well, that's as best as I can hear it, otherwise it's not relevant.

PN579

MR HEELAN: Sir, I'm happy to go to quite some detail in explaining to you the line of questioning, but in doing so - - -

PN580

THE COMMISSIONER: How much further is this going to go?

PN581

MR HEELAN: Not very far at all with this line. But before doing so I'd ask that the witnesses be excluded from court.

PN582

THE COMMISSIONER: I'll just see where it goes. I'll allow that question, okay, what was the witness' representative role at the meeting, that's what I want to know.

PN583

MR HEELAN: What's the answer Mr Keeley?---My representative role at the meeting was - - -

PN584

THE COMMISSIONER: As a member of the negotiating committee?---Yes. Was to give my vote the same as everyone else, have the ability to vote for or against that changes.

PN585

MR HEELAN: And as a representative did you speak for or against the agreement before the ballot was held?---When all the meeting - when everyone else had the opportunity to speak did I get up and speak for or against it, is that what you're asking?

PN586

I'm asking as in your representative role at that meeting before the ballot was held did you speak in favour of the agreement or against it?---I spoke against the agreement.

PN587

Against the agreement?---Yes.

PN588

Very well.

PN589

THE COMMISSIONER: I think we'll leave it there unless it's really relevant. I'm talking about the union, I'm talking about at the union meeting.

**** JOHN KEELEY XXN MR HEELAN
PN590

MR HEELAN: Certainly, yes.

PN591

THE COMMISSIONER: I'm saying can we leave any further questioning about what happened at the union meeting please at that stage.

PN592

MR HEELAN: Yes, certainly, Commissioner.

PN593

THE COMMISSIONER: Okay then, thank you.

PN594

MR HEELAN: Now, this incentive payment, the payment of $2880 incentive payment?---URO payment?

PN595

The URO incentive payment?---URO payment, yes.

PN596

The appendix A7 incentive payment because it's more than just URO, but the appendix A7 incentive payment, I put it to you that that began life as a claim by the CFMEU for a new allowance of $2250 per year for compliance with the disputes procedure and contract provisions?---Unless you show me the original log of claims served on Alcoa I can't answer that question.

PN597

Very well.

PN598

MR MCLANE: Sir, it's going to evidence that's well and truly outside of the scope of Codelfa.

PN599

THE COMMISSIONER: It is going to hopes and aspirations I think isn't it?

PN600

MR HEELAN: In my submission no. We've been careful in our witness statements in relation to Codelfa. My submission in relation to Codelfa is that there is extrinsic evidence which is permissible and that which is not. And what was in Mr Keeley's head around June or July 2005 probably at the Meadow Springs Golf Club ain't permissible in my respectful submission.

PN601

THE COMMISSIONER: I suppose I have to be even handed here. The fact was that under examination from Mr McLane it was said that the first the witness heard about this was at the golf club and it came from the employer.

PN602

MR HEELAN: Thank you, sir. Sir, I'd like the witness to be shown document 9 from the bundle that we filed.

**** JOHN KEELEY XXN MR HEELAN
PN603

THE COMMISSIONER: Is this one to be marked Mr Heelan?

PN604

MR HEELAN: Yes please, sir.

EXHIBIT #H4 EMAIL TO ROBERT RYAN DATED 05/07/2005

PN605

MR HEELAN: Mr Keeley, the document you have before you is an email, looking at the middle of the page, an email dated Tuesday, 5 July 2005 at 13.05, is that correct?---Sent Tuesday, July 05, 2005, 13.05.

PN606

Yes, to Ryan, Robert?---Yes.

PN607

Copies to a range of people including yourself at two addresses?---Yes, cc's to several people, yes.

PN608

From the CFMEU WA?---From?

PN609

Yes, the one at the top?---Yes, okay.

PN610

THE COMMISSIONER: It seems to be coming from Gary Wood to me by the look of it?---Yes.

PN611

MR HEELAN: And point one there, seeking a retention allowance of $2250?
---Yes.

PN612

And were you associated with the making of that claim?---Yes.

PN613

And was that claim based on the incentive payment agreed to by the company in respect of other work groups and in particular the mechanical trades and CEPU electrical trades?---Yes. It was at the time the mechanical work trades, yes, had a claim in. I'm not sure if it had been through the Commission yet, but they had a claim for a retention allowance, yes.

PN614

And the CFMEUs formulation of the $2250 claim was on the basis of a flow on?
---Yes.

PN615

And options sought to be put in relation to URO?---Yes.

PN616

And the company subsequently responded?---That is two separate claims.

**** JOHN KEELEY XXN MR HEELAN
PN617

Yes, it is at that date?---Yes.

PN618

Sir, I would ask that the witness now be shown document number 16.

PN619

THE COMMISSIONER: This is headed Graeme Kipps, K-i-p-p-s, email.

PN620

MR HEELAN: Yes, it is, sir.

EXHIBIT #H5 EMAIL HEADED GRAEME KIPPS

PN621

MR HEELAN: Thank you, sir. I should have explained to the Commission that these will come out under the name of Graeme Kipps who works in my office.

PN622

THE COMMISSIONER: I am just trying to identify the document, that is all.

PN623

MR HEELAN: For the purposes of cross-examination, sir, at the bottom of that page one will see that it's an email from Robert Ryan sent Monday, 4 July 2005 at 17.04 to CFMEU WA.

PN624

THE COMMISSIONER: Yes.

PN625

MR HEELAN: Mr Keeley, if you turn the page you'll see a document headed CFMEU discussion points 4 July 2005, there dealing with the claim for the 2250 plus the issues in relation to URO?---These points I'm looking at now, are they actually from our union or are they from the company?

PN626

Were you involved?---You're asking me to look at the email system, email.

PN627

Sorry, were you involved?---In?

PN628

The claim for the $2250?---Yes, yes.

PN629

And the negotiations leading to the conclusion of that claim?---I don't think there was - there wasn't that many negotiations. It was sort of nipped in the bud rather quickly. It was like weren't entitled to it. That was the response we were getting a lot of the times.

PN630

Isn't it the case that you wanted 2250 on the same basis as the mechanical trades and the CEPU electrical trades received it and the answer to that was no, but you actually ended up with agreement on more than 2250, but on the basis of changes to URO? Isn't that in a nutshell where the negotiations ended up?---No. What we were after was, we were after URO payment or URO - we were after a URO payment and we also wanted the flow-on of that retention allowance that the other unions or the metallies got and the main basis of that metal union's claim was the fact that they couldn't keep people on site. The guys were going elsewhere.

**** JOHN KEELEY XXN MR HEELAN
PN631

I'm not interested in the mechanical trades, Mr Keeley. Mr Keeley, I've got a question for you. Why are you interested in a URO payment when you were already getting time in lieu for it?---Because it actually stretched out too far. The basis of the URO payment was supposed to be for an emergency situation as such and over the years, the company started to implement its own policy around URO cover. It got to a point where people were taking courses and we were expected to cover those courses on our days off. The company was, we were losing operators. They were going elsewhere and the time frame between when these operators leave and when they are replaced could be months, many, many months and we were expected to cover these positions, so I guess after a period since 1992 and when we got to the negotiation tables this time around, the original intent of the URO had been blown out of the water and I guess the guys had had enough of it.

PN632

When you say you were losing operators, was that due to operators accepting redundancy packages or for some other reason?---Since 1992?

PN633

I am talking about your comment?---Okay. Well, yes, since the beginning of APP in '92, we had lost operators through redundancy, going elsewhere.

PN634

And so even though you were getting time in lieu for URO coverage, you were pursuing payment for it?---This time around are you talking?

PN635

I am talking about your evidence?---At this time?

PN636

THE COMMISSIONER: Yes, the second time?---Yes, that's what - - -

PN637

The first time it was Shell, the second time we're into. That's what we're talking about?---Okay, the second time around, the original claim from the union when we first started these negotiations six months early, we were looking at some form of payment or something to resolve the URO crisis, so that was originally part of our original claim back then.

PN638

MR HEELAN: This crisis, where was that?---Well, I can speak for Pinjarra. We were having a lot of troubles at Pinjarra with UROs.

PN639

Getting employees to cover?---No, no, we were having trouble with the guys coming in too much.

PN640

Coming in too much?---Yes. They were coming in - as I said, when this APP started, the intent was they didn't want guys to come in on their days off.

**** JOHN KEELEY XXN MR HEELAN
PN641

What's the issue with the employees coming in too often?

PN642

MR MCLANE: Sir, we just seem to be going around and around in circles again. What's the relevance?

PN643

MR HEELAN: In my submission the relevance is it relates directly to the claims being pursued by the witness on behalf of the union which led to the union having this view in his head which we say under Codelfa is not permissible, but this view in his head in June or July last year. May it please the Commission.

PN644

MR MCLANE: Perhaps the witness should be just challenged directly then on what he says his belief and understanding was at the time, rather than - - -

PN645

THE COMMISSIONER: Well, he's given that answer plenty of times, but there's clearly a claim here in H4 or H5, I'm not sure, that seems to pre-date H4. Are we still on that, Mr Heelan, or have we moved off the point about - do we need to know the basis of the claim at this stage?

PN646

MR HEELAN: In respect of - I wasn't pursuing the claim in respect of the 2250, ending up at the 2880. It seemed to me that that line of questioning wasn't going to get very far, so I was not proposing to pursue that.

PN647

THE COMMISSIONER: Very well. Is the questioning at the moment about H5?

PN648

MR HEELAN: It was, sir.

PN649

THE COMMISSIONER: Is the relevance of H5, which pre-dates H4, is that right?

PN650

MR HEELAN: H5 being the - - -

PN651

THE COMMISSIONER: I just don't know what Mr Keeley has got to do with H5. It seems to be a private email between Robert Ryan and Gary Wood.

PN652

MR HEELAN: Yes, which was precisely the reason for some of the questions at the outset, because Mr Keeley seems to be under the misapprehension that he was involved in everything.

**** JOHN KEELEY XXN MR HEELAN
PN653

THE COMMISSIONER: Okay, so you're tendering H5 as evidence that this was a private email between Mr Robert Ryan and, well, we assume Mr Gary Wood.

PN654

MR HEELAN: CFMEU WA.

PN655

THE COMMISSIONER: With a copy to Patrick Watt.

PN656

MR HEELAN: Yes, Commissioner.

PN657

THE COMMISSIONER: That shows it didn't go to the witness.

PN658

MR HEELAN: Yes, certainly, and that the witness was not involved in this part of the negotiations.

PN659

THE COMMISSIONER: Is that the question that you're asking?

PN660

MR HEELAN: No, I am not going to take it any further. We will be calling some fairly succinct evidence in relation to that.

PN661

THE COMMISSIONER: Yes.

PN662

MR HEELAN: Now, Mr Keeley, prior to the ballot on the second agreement, Mr Pegg had urged other representatives of the CFMEU to read what was actually proposed in relation to URO, had he not, and not to go on what they thought it meant, but to go on the words. Do you recall that?---You'll have to jog my memory of where that was sent, what contents. Was it an email?

PN663

I will try to help where I can. If the witness could be shown document number 13 in the bundle that we filed, sir.

PN664

THE COMMISSIONER: This is a three-page email which has also got Graeme Kipps at the top and we will mark that.

EXHIBIT #H6 THREE-PAGE EMAIL HEADED GRAEME KIPPS

PN665

MR HEELAN: Mr Keeley, I will just ask you to go to the bottom of the first page of that email. Can you see that it's an email from the CFMEU sent to Robert Ryan on 25 August at 13.11 and with the comment immediately above the name Gary, the comment:

**** JOHN KEELEY XXN MR HEELAN
PN666

Bob, can you please provide a response to this, regards, Gary.

PN667

?---What page are we looking at, sorry?

PN668

The first page?---Sorry, you'll have to elaborate. The first page?

PN669

The one you've got in your left hand?---That email was from you?

PN670

If you go towards the bottom of the page?---Yes, from Robert Ryan, yes.

PN671

Mr Keeley, you'll see that it's sent from Bob Ryan to me and then from me to someone else in my office. That's just for the purposes of getting a copy for today's proceedings, but the actual email I'm referring to is, if you go just under the middle of the page?---Yes.

PN672

You'll see there the name Gary Wood, secretary, in bold letters at the bottom of the page?---Yes, 25 August.

PN673

Yes, the email directly above that, 25 August, from CFMEU WA to Robert Ryan. Do you see that?---Yes.

PN674

And then the email immediately below that is one from Eric Pegg sent on 24 August 2005 at 5.08 pm to yourself as well as a copy to CFMEU WA?---So we're talking second page now?

PN675

Yes, the top of the second page?---Yes.

PN676

And Mr Pegg's comment is in the following terms and I quote:

PN677

Guys, when pressed on this issue, Pat has told me that continual refusal to cover by an individual could result in disciplinary action. This is the extreme if we accept the $2880. URO coverage is therefore not voluntary. If the EBA stays as it is as voted in at the last meeting, no disciplinary action can be taken (URO voluntary). As far as manning goes, we have no agreement on minimum numbers. Pat has hinted at minimum number of four for Pinjarra and Kwinana and three for Wagerup. Another part of this issue is if someone works more than four UROs, again we had no agreement, yet Pat is saying the current arrangement will apply. What happened to consultation and agreement? All I can say again is read what is actually written, not how you think it will work. Regards, Eric.

**** JOHN KEELEY XXN MR HEELAN
PN678

And I conclude the quote. Now, underneath that is an email from a Stuart Rhodes to you?---Yes.

PN679

Explaining the way that the system had been explained to him?---Yes.

PN680

And that's in response to an email from you on Wednesday, 24 August 2005 at it looks like 12 minutes after midnight to a range of people, obviously some of those CFMEU representatives and it's in the following terms and I quote:

PN681

Matt, I get the feel from the questions and answers below that you guys believe that URO is not voluntary. Are you guys at Wagerup not getting the information that we are sending out via Gary Wood, or do you have a different agreement?

PN682

Three question marks:

PN683

URO is voluntary. Read the agreement with the information sent out from Gary. John.

PN684

I conclude the quote. What information was this?---The discussions, all the discussions we had about URO cover - - -

PN685

What was the information sent out by Gary Wood?---I dare say I was referring to the information that had been circulating over the months of the negotiations since the negotiations started.

PN686

Do you know? If you don't know, simply say so?---No, I can't pinpoint - - -

PN687

That's fine. I won't take that any further. Now, the position of the union at the time that the second ballot was held was that if that ballot did not approve the second form of agreement, that the union would immediately move to have certified the agreement balloted the first time around?---Yes. The second vote was just to add that one to the agreement.

PN688

Appendix A7. The agreement balloted on the first time around did contain an appendix A7, did it not?---Yes, it did have, but it didn't have the 2880 in it.

PN689

Now, you participated in a meeting on 7 November 2005 at which the CFMEU claim in relation to the $2880 incentive payment was discussed. Is that correct?
---I can't confirm the dates you're saying, I'm sorry. I don't have that at my fingertips.

**** JOHN KEELEY XXN MR HEELAN
PN690

Sir, I would ask that the witness be shown the document numbered 21 of the bundle that we filed. Simply turn to the second page of the document headed minutes of meeting.

EXHIBIT #H7 MINUTES OF MEETING DATED 07/11/2005

PN691

MR HEELAN: Thank you, sir.

PN692

Mr Keeley, the document you have in front of you are the minutes of meeting of a joint management/union EBA implementation team held on 7 November 2005, is that correct?---Yes, but Geoff Keeley is there. I'm not there apparently.

PN693

I know Geoff Keeley is there. If we turn over to the following page, right down the bottom, about 90 per cent of the way down you'll see a final dot point. That seems to have the right Mr Keeley's name. Do you accept that, that it's you?
---Yes.

PN694

And where it says Geoff Keeley with the attendance, it should actually be John Keeley. Do you accept that?---Yes, yes. I'm just trying to place this meeting. You've given me three pieces of paper here. Have I got time to read through them?

PN695

Certainly, Mr Keeley. The only point I'm going to take you to, Mr Keeley, is the first dot point under item 1?---Yes.

PN696

But you take your time and read it?---Yes, okay, that first dot point I've read, yes. That's the first paragraph.

PN697

And do you agree with that?---Yes. It seems to be the content of - - -

PN698

That the minutes accurately reflect what was discussed at the meeting?---I was at that meeting. They seem like they were the - they would have been the issues from that meeting. I'm just trying to place where this - it would probably help a little bit if I knew where this meeting took place because we've had lots and lots of meetings and they're all different places, but, anyway, carry on.

PN699

MR MCLANE: Sir, could I ask, I think it's only fair that that be put into the context so that the witness is able to get the wheels turning as far as his memory goes.

**** JOHN KEELEY XXN MR HEELAN
PN700

THE COMMISSIONER: Yes.

PN701

MR MCLANE: He's just asking where it was.

PN702

THE COMMISSIONER: Yes, I will allow that. Thank you. Mr Heelan, I presume this is something to do with conduct after the agreement. This is well and truly after the agreement was certified, isn't it?

PN703

MR HEELAN: Yes.

PN704

THE COMMISSIONER: Can you get instructions on where this meeting took place?

PN705

MR HEELAN: Me, sir?

PN706

THE COMMISSIONER: Yes.

PN707

MR HEELAN: Yes, sir. Thank you, sir. Sir, my instructions are that the meeting took place in what is known as the Pinjarra Hub building in the conference room close to where Mr Stuart Allen's office used to be located. I would suggest that there were probably not too many meetings at the Pinjarra Hub building during the course of the negotiations.

PN708

THE COMMISSIONER: Subsequent to the agreement being certified?

PN709

MR HEELAN: Yes, sir.

PN710

THE COMMISSIONER: Just for my benefit, do you know who prepared the minutes?

PN711

MR HEELAN: It seems to me that the first person named, Mr Andrew Kraktovic prepared them, sir.

PN712

THE COMMISSIONER: Thank you.

PN713

MR HEELAN: And that copies were circulated to all Powerhouse staff as indicated on the minutes, but I think the critical issue is whether the witness recalls being at such a meeting and the items described there being discussed in relation to the CFMEU claim?---Yes, I can recall the meeting you're talking about.

**** JOHN KEELEY XXN MR HEELAN
PN714

That Stuart Allen was present at?---Stuart Allen came in late. He was held up I think with traffic or something at the time, so the meeting took place initially between Gary Wood, Andrew, the new Powerhouse manager and Pat Watt on other issues, on some issues around the APA issue.

PN715

And when the first dot point under point 1 was discussed, Mr Allen was there?
---Yes, yes, he was the one that actually responded to it.

PN716

Thank you, Mr Keeley. I won't go any further with that. Mr Keeley, how is your salary paid?---It's on an annual basis as per the '92 APP and paid fortnightly into a nominated bank account.

PN717

Fortnightly in advance or in arrears or some other way?---You do two weeks and then you get paid, yes.

PN718

So you do the work and then you receive the pay?---Yes.

PN719

How is your shift allowance paid?---The same system. What's done is it's averaged out over an annual basis of all our public holidays, our Saturday, Sundays are all averaged out, et cetera, and divided down over a 26 week period and moved into the pay slip, the same system.

PN720

In advance or in arrears or some other?---It would be the same way the base rate is paid, I dare say. It is, yes.

PN721

Sorry?---It would be paid the same way the base rates are paid.

PN722

In arrears?---You do the two weeks and then your allowances would come through, yes.

PN723

After you've done the work?---Yes.

PN724

Now, how about where employees progress through the career paths provide for in the agreement? There's increases in percentage of the rates?---Under this current agreement are you talking about? Yes, yes.

PN725

All previous agreements?---Yes.

PN726

What happens there? Do the employees get the money up front and then do what's required or do they have to do what's required and once they've done what is required, then they get the increase in the rate?---Under the agreement we have at the moment, the guys have hurdles they have to jump to move to the next level and if they put their hand up, my understanding is if they put their hand up to go to the next level, then if they can't reach those levels due to things that are outside their control, then they're back paid to the day they put their hand up.

**** JOHN KEELEY XXN MR HEELAN
PN727

So if they jump the hurdles, they get the money? Is that right?---Yes, but if they can't reach it within - I think there was a three months period in place. If they couldn't reach it within the three months period of asking to do it, then when they did achieve it, they'd be back paid to the date they'd put their hand up to do it.

PN728

Right, but in all cases they must jump the hurdles before they get the money?
---Yes, except for the 12-1/2, when we went from a job grade 12 to a 12-1/2, there was no hurdles. We just picked that up straight away.

PN729

Are we now talking about something different to my question?---I was under the understanding you're talking about paid work and how the incentive system - - -

PN730

So with the 12-1/2, what happened there?---With the 12-1/2, after we finished these talks, the company offered a new job grade for the base which was a 12-1/2 base rate which is a higher rate of pay and when we accepted it, we picked up the 12-1/2 rates straight away, from that first pay period, when the Commission signed off on it.

PN731

If this incentive payment was paid in advance - - -?--- The URO are we talking about?

PN732

Yes?---Yes.

PN733

And the workers, let's say at Pinjarra, failed to deliver on the URO requirements and the company said, well, they then have no entitlement to that money, which the company has already paid in advance, the company would need to get the money back off the employees, would it not?---I would suggest that that - I'd say within the next six months, when the next phase would have come through, the next pay period - the URO payment would have come through, that I dare say they would have grabbed the union representatives and we would have been sitting down and talking turkey big time.

PN734

No, no, let's go back to the question. If the company paid the money in advance, for six months in advance and let's say after week one the Powerhouse employees at Pinjarra were simply refusing to provide URO coverage?---Week one?

PN735

Or week two or week three or week 20?---Well, the averages coming out of the system were they only needed four per operator, so I dare say it wouldn't have shaken within week one or week two.

**** JOHN KEELEY XXN MR HEELAN
PN736

Why do you say that?---Well, the guys would have covered or unless it was something floating around to stop the coverage.

PN737

Have the Powerhouse operators at Pinjarra been covering since the registration of this new agreement?---I don't have the figures, but my understanding is they have been covering. There were times where they couldn't cover, but - I don't know if I can, but I need to elaborate on the two different sections of the URO cover. There's URO cover which we're talking about, the 2880, is for unplanned coverage and then there's a planned coverage which attracted no money and what that was for was if the company knew that people were going to be off for long periods of time or they knew that people were going to be off, they were going to instigate some way of covering them with the extra resources they had, et cetera, so we have a URO coverage for the 2880 which is unplanned and then we have a planned coverage which attracted no dollar value.

PN738

Which one was the incentive payment for?---The URO payment of 2880 was for four coverages, up to four coverages.

PN739

Is that all it was for?---There were some other things thrown in there. There was a step or a safety system that was thrown in as well.

PN740

Anything else?---Sorry, unless you show me the document, I can't give you exactly what it's for. There was - 2880 was for up to four UROs, voluntary four UROs. I'm sorry, I can't elaborate any more than that. That was the main gist of it.

PN741

You can't recall the detail of the deal?---Well, see, we're getting into other areas
of - - -

PN742

Can you or can you not recall the detail of the deal?---I can't elaborate on it at the moment, no.

PN743

Can you recall the detail of the agreement? Yes or no?---Can you give me a couple of minutes to think about it?

PN744

You need to ask the Commissioner that?---The reason I'm asking is because the incentive payment for wheeling power had a pile of hurdles as well, so they had to be met as well. That was a completely different payment. The 2880, the main essence of the 2880, the main basis of the 2880 was for the four URO coverages.

**** JOHN KEELEY XXN MR HEELAN
PN745

Nothing else?

PN746

THE COMMISSIONER: He said the main essence.

PN747

MR HEELAN: I have no further questions, Commissioner. Thank you.

PN748

THE COMMISSIONER: Yes, Mr McLane.

<RE-EXAMINATION BY MR MCLANE [12.39PM]

PN749

MR MCLANE: Thank you, Commissioner. Sir, I'm hopefully going to be fairly quick with this.

PN750

You've just mentioned wheeling power. Mr Heelan has been asking you all about the URO and also the retention incentive. Are they stand alone things or are they inter-connected in some way?---No, they're stand alone. They were three different items, three different discussions taking place to get to there.

PN751

All right. Thank you. Just briefly, what is wheel and power?---It was an incentive payment and what it consisted of was wheel and power between the three sites.

PN752

THE COMMISSIONER: How do you spell it?---Moving power between - - -

PN753

Wheeling? W-h-e-e-l-i-n-g, wheeling power? Okay?---The idea was that if
the - - -

PN754

MR MCLANE: Sorry, let me take that a couple of steps. Is it part of the control room operator, the panel operator's duties to control this wheeling power?---Yes, it is.

PN755

And do you do that?---Yes, I do.

PN756

Now, what is it in very simple terms?---Okay, it consists of if we're out of balance, in an out of balance situation where - because we buy power from Western Power and we wheel power between each site, so what happens is the idea is to stay within our allocated amount of power and if there's - and we were getting bonuses for it or an incentive payment to do that, to balance the power. Also in that incentive payment, because initially when that was offered to us, it was only 5 per cent and then it went up to 8 per cent later on, after discussions in negotiations and it was broken down into 2-1/2 per cent site by site and the impact of that could be through a boiler falling off and could interfere with production. We weren't in control of that, but that was tied into it, that 2-1/2 per cent. The other 2-1/2 per cent was for wheeling power and then there was a 3 per cent bonus for doing the right thing, so tied up, the maximum you get was an 8 per cent and that was an incentive payment and when that was negotiated, that was negotiated, that would be paid quarterly.

**** JOHN KEELEY RXN MR MCLANE
PN757

Quarterly in what way?---It was quarterly in arrears because - - -

PN758

Okay, now, just stop there. Was that made clear, that it was going to be in arrears?---Extremely clear.

PN759

THE COMMISSIONER: This is not in the agreement, is it?

PN760

MR MCLANE: It is a part of it, sir, yes, I understand.

PN761

THE COMMISSIONER: Which clause?

PN762

MR MCLANE: Sorry, sir, I'll have to get some assistance from the people who deal with it. Perhaps, sir, if I just put the question to Mr Keeley.

PN763

Is that part of the agreement?---Yes, it is. It's an incentive payment.

PN764

Can anyone help me?---It would have been handed in with all the submissions.

PN765

No, where would I find it in the agreement? It is A9, sir, attachment A9, the very last page of the agreement.

PN766

THE COMMISSIONER: I've got that one and it's got three dots:

PN767

WAO power will be available to employees who've achieved a minimum 90 per cent, 97 per cent, et cetera. Eligibility pathways -

PN768

and the third dot point I've got - is there a page after that? I've only got 31 pages.

PN769

MR MCLANE: I'm actually missing it. I have got it, but I've got it on page 31.

PN770

THE COMMISSIONER: No, my A9 doesn't include any 8 per cent or 2-1/2 or 6 or 3.

PN771

MR MCLANE: No, it doesn't, sir.

PN772

THE COMMISSIONER: That's all I'm asking.

PN773

MR MCLANE: I apologise. Thank you, sir. Sir, the details are in the presentation provided by the company and I understand that's contained in Mr Heelan's - - -

**** JOHN KEELEY RXN MR MCLANE
PN774

THE COMMISSIONER: Okay, fine. Thank you.

PN775

MR MCLANE: Mr Keeley, to put it into layman's terms, the process that you've just explained, wheeling power, is that to make sure that for the minimum possible is coming out of the Western Power grid into the Alcoa operations?
---It's to make sure we stick to our contractual arrangements with Western Power and don't exceed it.

PN776

And to make sure that you export?---Yes. Export as much - we run the operation as tight as possible, that's import, export, that's also with steam, et cetera, to the refinery, so it's all tied up into the one.

PN777

Thank you, and your evidence is that that's an incentive for people to maximise that for the company?---Yes, it's an incentive payment.

PN778

Thank you. Now, the retention incentive, what is that?---The retention - - -

PN779

Very briefly?---Okay. The retention allowance came in through the other unions. The other unions made a claim on the company and - - -

PN780

THE COMMISSIONER: You're talking about the metals thing, are you?

PN781

MR MCLANE: Yes. Yes, the trades.

PN782

THE COMMISSIONER: That's been the subject of evidence. Yes.

PN783

MR MCLANE: Is there a difference between - well, you've already answered that. What is the difference between the URO and the retention incentive in simple terms?---The retention incentive as far as I'm aware is working with contractors, the ability to work with contractors, pick up the shortfall of the contractors. I believe there was something about moving from site to site, the ability to move from site to site as well.

PN784

Thank you. Now, is it your evidence that URO and retention incentive are two distinct - - -?---Yes, they're definitely different.

PN785

Are they linked in any way?---No. I can't believe they've been linked in any way, no.

**** JOHN KEELEY RXN MR MCLANE
PN786

Thank you. Earlier on in your evidence, Mr Heelan nailed you down to what you conceded was, he used the words the central issue of the claim, I think, maybe not exactly, but the central issue or, sorry, the central issue driving the union's application as being paid in arrears and doing work up front and not being paid. Do you recall that?---Yes.

PN787

Is that really the issue that's driving the membership on the job or is it that they thought they were going to be paid up front and now understand they're going to be paid in arrears?

PN788

MR HEELAN: I object to this question on two grounds, sir. The first part of the question to the witness is really is your earlier evidence your evidence and the second part is leading him by submission. May it please the Commission.

PN789

THE COMMISSIONER: I don't have a problem with asking the witness to clarify the response that he made to your question as to whether or not that was the issue of concern or some other issue.

PN790

MR HEELAN: In my respectful submission, the question as put - - -

PN791

THE COMMISSIONER: You're talking about leading?

PN792

MR HEELAN: Leading and proposes an appropriate response.

PN793

THE COMMISSIONER: Can you rephrase? Thank you, Mr Heelan. Can you rephrase the question, Mr McLane?

PN794

MR MCLANE: You identified to the Commission in response to a question from Mr Heelan in your evidence in chief in relation to the fact that the membership or the employees were not being paid the URO until after their work was done. You identified that as the central issue. Are there other central issues as well?

PN795

MR HEELAN: Well, I object. I mean, the central issue is the central issue. May it please the Commission.

PN796

THE COMMISSIONER: Are there other significant issues?---Yes.

PN797

MR MCLANE: Are there other significant issues around the URO coverage?

**** JOHN KEELEY RXN MR MCLANE
PN798

THE COMMISSIONER: No, around the dispute, what's driving the dispute?
---The URO dispute?

PN799

This dispute which is here today?---The guys, the operators have actually put in their effort, they've done the coverage and they still haven't been paid. We've had operators that have turned up and they've done two and three possibly, depending which category you put it in, have come in and done coverage. They've done three URO coverages and they have not received payment for it except for today when the 545 or whatever it was was dropped in our pay packets as of today.

PN800

So it's the delay?---Yes.

PN801

MR MCLANE: When you went on to the APP in '92, were there any payments that were made at that time in a manner that was up front?---Yes, there was a payment they call a transition allowance and that was done over a three year period. By memory, it was 3000, 2000 and 1000 over a three year period.

PN802

And when was the first payment received, well, in relation to the registration of that agreement?---Going by memory, I believe it kicked in first pay period after it went to the Commission is when it would have been paid. If it was later than that, it would have been through administrative problems from the company, I'd say.

PN803

But your evidence to the best of your recollection, I know it's going back a bit, is that it was paid upon registration, became due upon registration?---Yes, it was paid up front, yes.

PN804

THE COMMISSIONER: Exhibit H2, I'm just looking at page 3, says a transition payment of 6000. This is the letter to Mr Keeley of 15 October 1992:

PN805

A transition payment of $6000 divided into three payments of 3000, 2000 and 1000, the first payment to be made on ratification of the agreement by the Australian Industrial Relations Commission.

PN806

MR MCLANE: Thank you, sir. Sir, I've no further re-examination.

PN807

THE COMMISSIONER: Very well. You're excused. Thank you very much.

<THE WITNESS WITHDREW [12.53PM]

PN808

THE COMMISSIONER: What do you think we should do? Have a break now? I think we'll break now. Can we start at half past one? Is that all right for everybody?

PN809

MR MCLANE: Yes.

PN810

MR HEELAN: Yes.

PN811

THE COMMISSIONER: Very well, the Commission is adjourned.

<LUNCHEON ADJOURNMENT [12.53PM]
<RESUMED [1.37PM]

PN812

THE COMMISSIONER: Yes, Mr McLane.

PN813

MR MCLANE: Yes, Commissioner, I would now seek to call my second witness, Mr Matthew Rolls.

<MATTHEW PETER ROLLS, SWORN [1.38PM]
<EXAMINATION-IN-CHIEF BY MR MCLANE

PN814

MR MCLANE: If you could just state your full name and address and your occupation, Mr Rolls?---Matthew Peter Rolls, (address supplied).

PN815

And your occupation?---Power controller for Alcoa at their Wagerup refinery, the site convenor for the CFMEU and the lodge president for the three sites.

PN816

How long have you been in the Powerhouse - sorry, it's Wagerup, is it?
---Wagerup.

PN817

How long have you been in the Powerhouse at Wagerup?---Fifteen and a half years.

PN818

How long have you been a representative of the CFMEU?---I was elected by the membership as a deputy delegate at Wagerup about a year and a half after I started with Alcoa, half way through '91 and have progressed through the union to become president in the last three years.

PN819

Now, how long back do you go in relation to negotiations between - - -?---The first APP in 1992.

PN820

Now, you just mentioned the APP. When you went on to the APP, did you receive any payments at that time?---A transitional payment of 3000, 2000 and 1000 in three separate years already identified by the Commissioner.

PN821

Did you and your members for some time at Wagerup provide cover in URO circumstances when somebody wasn't able to attend their shift?---The first five years of the APP, I believe it was around 1997 for Wagerup, we were still supplying URO without in lieu days for compensation.

PN822

Did you become compensated at some stage?---The issue raised its head when I found out that the other two sites were getting it and we weren't.

PN823

Getting what?---A day in lieu. I asked the question and then the work and family policy came into fruition and we were informed that we would have to supply URO cover for anyone on work and family leave and we highlighted to the company, Pat Ryan I think was the manager at the time, that this would effectively double our amount of unpaid overtime and that was unfair and we never agreed to that in the original APP, so we came to an agreement that a day in lieu would be given and I also raised at the same time that - - -

**** MATTHEW PETER ROLLS XN MR MCLANE
PN824

When did the day in lieu kick in, roughly, what year?---Somewhere around '97 from my memory, five years after we started on the APP.

PN825

Around it?---Yes.

PN826

What was the form of that agreement? How did you - - -?---It was in house. We were told that the company - there were some coordinators that weren't giving it and we had many discussions around that. Each shift and coordinator runs their own shift how they see fit and we were trying to highlight to our management that that was unfair where some aspects of the company were getting it and other people weren't and we asked management at the time could they speak to those foremen to bring them into line.

PN827

When you say we, who do you mean?---The representatives, employee representatives.

PN828

Is this in relation to running the cover?---Running the cover?

PN829

Organising the cover?---We've always managed and we've done the call-outs and jumped on people if they won't do their share, ask them to pull their weight. We're got a shift of three at Wagerup, not a great number, so if there's one or two out of a shift that are refusing to do it, then it all falls back on the one person and we try and make sure that's not going to happen.

PN830

Okay, and the incident you're talking about was one occasion you needed to do a bit extra to bring someone into - - -?---There have been occasions where people have refused. They say they've been drinking, they're just on their way out the door, going to a wedding, then we accept that and we go to the next person on the call-out list to try and bring them in.

PN831

To what extent does the management involve itself in that process?---If we can't get anyone, there was an instance I can recall before I went on long service leave in October where I was ringing around trying to get someone in for cover and I got down to the shift that was coming in the next night and I then involved the coordinator, saying that I couldn't get anybody, what do you want to do about it? Do I keep ringing? There were some unavailable, wouldn't answer mobiles, all I was getting was answering machines.

PN832

How many times have you had to do that over the life of the previous agreement?
---The previous agreement? It's normally left to the CA, the person in charge in the control room on the panel. We rotate through that job, I guess I would probably say in the last 10 years, I've had to ring 20 times.

**** MATTHEW PETER ROLLS XN MR MCLANE
PN833

Ring who 20 times?---Various members to try and get them to - - -

PN834

How many times have you had to involve the management?---Once that I can recall recently.

PN835

Were you involved in the negotiations for the current certified agreement?---Yes.

PN836

Can you recall when you first heard of a proposition to pay $2880 for URO?
---Looking back through my notes last night, the first date that I can find was 21 May where the 2880 was raised. I believe that the meeting that John was talking about, there was two meetings for the 18 months that I couldn't get cover for and I was on shift and couldn't attend.

PN837

I will stop you there. When you say the meeting John was talking about, are you talking about John Keeley?---John Keeley previously.

PN838

Were you at that meeting that he referred to?---No, I was on shift and couldn't attend.

PN839

Okay, so the meeting of the 21st?---The first time I heard of it was 21 May '05.

PN840

And that's the different meeting?---Different meeting.

PN841

Do you recall where that was, because Mr Keeley's evidence was the meeting he was at I think was at the golf club?---At the RAFA base in Mandurah.

PN842

Do you recall who put that proposition forward?---It was discussed before management got there, because it had been floated at a previous meeting.

PN843

Let me stop you. What was discussed, the concept or $2880?---What was discussed was the options that we would like to discuss with the company, the four options.

PN844

Now, what are these four options?---The four options - - -

PN845

Without identifying them?---The first one was - - -

PN846

No, I don't want you to spell them out?---Okay.

**** MATTHEW PETER ROLLS XN MR MCLANE
PN847

I want you to just explain what you mean by the four options?---There was
four - - -

PN848

Whose initiative were they, which sides?---The company came with a proposal of 2880 for four URO covers per annum.

PN849

I am now asking about the four options?---The four options - - -

PN850

Where is four options?---From the negotiating committee. It was a counter claim from the employee representatives that we wanted to put back to our management.

PN851

Okay, so you put that in the form of four options?---Four options.

PN852

Was that before or after you had heard of $2880?---After.

PN853

Are you sure of that? Which came first, four options or $2880?---It was an original claim in the log of claims which was at the start of the negotiations 18 months earlier. When we put that proposal up, we were told that the company would not entertain that idea, when we're getting it from you for nothing, why would we want to pay for it.

PN854

Okay. Now, when were the four options put forward by the negotiating team for the union?---As a counter claim when the 2880 was tabled.

PN855

Are you sure of that?---Yes.

PN856

When do you recall - sorry, who do you recall putting forward 2880, or do you recall a specific person? If you don't, which site put it forward?---It would have been management.

PN857

Okay, and that's on 21 May?---It was raised as one of the discussion points at that meeting. Whether we as the representatives initiated the discussion on that point or the company initiated, I am unsure of at this time.

PN858

Okay, but you're clear, are you, when you say that it came from the management?
---Yes.

PN859

What happened when that payment was suggested?---We were wondering where the figure had come from in light of other payments being paid around the sites for overtime.

**** MATTHEW PETER ROLLS XN MR MCLANE
PN860

Did anybody from the company explain to you how 2880 was arrived at?---I've since seen documentation that it was worked on - - -

PN861

No, I'm not asking - I am asking at the time?---We did ask and I think we were informed by Bob that it was two shifts on night shift, two shifts on day shift, $720 a shift I think it was.

PN862

Now, at that time, well, was agreement eventually reached on the figure of 2880?
---No. We rejected it.

PN863

At that time?---At that time.

PN864

How much later after it had initially been put forward and been rejected was it that agreement was actually reached on that figure?---It was after we had the first in principle meeting to vote on the agreement which was an in principle vote that the guys would support the content of the agreement with the provisos of a few other things and one of them was the 2880 overtime or URO payment.

PN865

So when did you - well, did you come to know that the company proposed to pay that payment by way of two six monthly instalments? When did you become aware of that?---To my recollection, it was after an email and a phone call about three weeks ago from Jim Aemons and Sean Hogan, members of Wagerup, employees at Powerhouse, complaining to me that they weren't going to get the 2880 up front.

PN866

Where were you at the time - - -

PN867

THE COMMISSIONER: Sorry, when was that? Three weeks after?---It was about three weeks ago from now, sir.

PN868

Thank you.

PN869

MR MCLANE: Now, where were you?---In Sydney.

PN870

You were on leave, I understand?---Long service leave, have been since October and will be for another month and a half.

PN871

So had you heard of - had the company put a proposition to you at any time before that to pay by way of instalments?---No, not to my recollection.

**** MATTHEW PETER ROLLS XN MR MCLANE
PN872

At the time the agreement was reached on 2880, how did you understand that payment was going to be made?---In the final draft of the EBA document, it mentions on a six monthly basis. I have taken that to mean that it would be paid in - - -

PN873

I will stop you there. It's not what I asked. At the time - were you at a meeting when the agreement was reached on the figure of 2880 or not?---I was at a meeting with the other delegates and Gary Wood in the car park at the Silver Sands Hotel when we had said to Gary is the 2880 still on the table? You need to ring Pat and Bob now before we go to the troops. If it's not on the table, we need to tell that to the troops. Gary then made a phone call, I believe it was to Bob Ryan and asked was it still on the table and Bob told him that it had never been removed, we had rejected it.

PN874

That's the time it was agreed to, is it, and the way it was agreed?---Well, it was from then we came back with the four counter claims, that we thought maybe we could get it, some in lieu time, half payment or - - -

PN875

Okay, let me ask again. When was it agreed? Were you at the meeting when it was agreed, when the figure of 2880 was settled?---I don't understand what you mean, Dave. Do you mean the final vote?

PN876

No. At some stage during negotiations, 2280 must have been agreed upon?
---When the company had rejected our four options, we said, well, okay, if that's all on offer, we'll accept that and take that back to the troops. Yes, I was at that meeting.

PN877

Thank you. At that time, how did you understand the 2880 was to be paid?---In a lump sum after registration.

PN878

Why did you have that understanding? Do you know?---I know the Commissioner is not going to like it, but I'll refer back to another union out in the plant. I was informed by one of their delegates that they were being paid a retention money to say that they were going to do overtime and then they were paid $720 a shift to do the overtime and I thought, well, if the company was offering it to them, why would they offer something different to us?

PN879

Okay, was there anything else that made you think you'd get it up front?---The retention money that they paid some 10 years previous was paid upon registration.

**** MATTHEW PETER ROLLS XN MR MCLANE
PN880

Did anybody from the company ever say to you that it wouldn't be paid up front in a lump sum?---No, not to my recollection.

PN881

Did you have a discussion with anybody from the company in relation to the 2880 for the URO coverage before you went on leave?---Yes.

PN882

Do you recall where and with who?---Mr Pat Watt in the control room at Wagerup power station.

PN883

Can you roughly point to when that discussion took place?---Early October.

PN884

And what's your recollection of the discussion?---There was some problem around implementation I think of the 2880. There was some upper management saying that they thought we'd been able to strike a deal with the members to accept the agreement without the 2880 and the company was a bit hesitant whether other unions would see it as an additional claim or a claim - what's the wording in the agreement now - a claim outside of the agreement.

PN885

Did you discuss that?---Yes. I discussed it at the time with Pat and Pat had asked me how as a union will we be able to, if the company pays this money, how will we be able to guarantee that our members will stand up and do the right thing and supply the cover.

PN886

Okay, and what was your response?---My response to that was I believe that it was a matter of honour if I was paid the money and if I said I would do it and I was paid the money to do it, then I would supply the cover and I would expect the members to do the same.

PN887

Were you at the meeting where it was explained to the members and there was a vote taken to accept the URO payment with the 2880?---The second meeting, yes.

PN888

Was it ever explained at that meeting that it would be by way of two instalments?
---No.

PN889

If it had have been, what in your opinion would have the outcome been?---I've already had - - -

PN890

THE COMMISSIONER: Sorry, did you mean that, because the agreement has - the dispute is not about two instalments, is it, the six monthly instalments? The dispute is about - - -

**** MATTHEW PETER ROLLS XN MR MCLANE
PN891

MR MCLANE: Whether it's up front, yes.

PN892

The question was, I'm sorry, I probably didn't put it very well, if the membership understood that the agreement was going to be by way of two instalments in arrears or instalments in arrears, in your opinion, how would have they voted?
---I've had a number of members' phone calls and emails, telling me that if this had have been explained to them, that they would have voted differently.

PN893

You were present for the evidence of Mr Keeley?---Yes.

PN894

When he was cross-examined and then I took him in re-examination to the wheeling power. Are you able to - well, sorry, let me come at that again. There is wheeling power and there's the URO payment and the retention incentive?
---The wheeling of power allowance is not only the wheeling of the power, it's managing the power system, also sending faxes off, working out balances. Wagerup is in control of that. I believe it hasn't changed since I've been on leave. The other sites will ring us first thing in the morning. We'll go through charts and work out what we need to order. Part of that allowance is also - - -

PN895

How much power do you need to order?---Power we need to order from Western Power in advance, because if you don't order in advance, there's large fines. Also as part of managing the power system, it's also reliability, the reliable operation of our power station and where we have an impact on something that sends the station down, then that will come off our incentive bonus for that power wheeling incentive.

PN896

Thank you. Now, if you could just explain the retention incentive in a similar sort of way, nice and briefly and to the point?---The retention I can't explain, because it's been struck since I was on long service leave. I've only heard it hearsay in emails.

PN897

That's fine, and the URO?---The URO?

PN898

Yes?---It was a second - separate to the original, the other WAO incentive for power and reliability was 2880 to do four unplanned short notice covers of sick leave per annum and it would be paid upon registration.

PN899

Okay?---And there was two options. It could either go into your bank account or you could salary sacrifice it into your super.

**** MATTHEW PETER ROLLS XN MR MCLANE
PN900

THE COMMISSIONER: Mr McLane, can you clarify, are you saying that there's a retention incentive allowance for Powerhouse?

PN901

MR MCLANE: That's my understanding, sir. Sorry, sir, if I could take some instructions.

PN902

THE COMMISSIONER: I think that's the AMWU, isn't it?

PN903

MR MCLANE: Yes. I am sorry, sir, there isn't. The retention bonus is for the trades, the CEPU and the metal workers. It does apply to one section of our trades and that is the carpenters, I understand, but it's trades, it's not Powerhouse and our submissions are that they're two separate things.

PN904

THE COMMISSIONER: Yes. So when Mr Rolls was answering the question, I will assume therefore he was talking not about the Powerhouse employees, he was talking about other persons?---Sir, I was informed while I've been on holidays that a third incentive has been struck that isn't in the agreement that is on the table and I believe has been signed off on, which is this retention money, 2250 I was told. Is that not the case?

PN905

MR MCLANE: All right?---My company representatives are looking very dull faced.

PN906

Not only company representatives?---I've had a lot of phone calls and emails to me - - -

PN907

Just leave that for now. Is the URO and the incentive payment two totally separate - - -?---Two separate. They were first introduced to us as WAO1 and WAO2, two separate entities.

PN908

And are you aware of any interrelationship between the two?---None.

PN909

I have no further - - -

PN910

THE COMMISSIONER: The second one, I mean, where I keep getting confused is that if you look at A7, that clearly has the word incentive. Now, that's for both the URO and the complying with the resolution of dispute arrangement.

PN911

MR MCLANE: That's correct, sir.

**** MATTHEW PETER ROLLS XN MR MCLANE
PN912

THE COMMISSIONER: And WA6 also has the word incentive. That's the one which I understand is the wheeling matter. Is that right?

PN913

MR MCLANE: Sorry, sir, is that - - -

PN914

THE COMMISSIONER: A9.

PN915

MR MCLANE: Yes, that's correct.

PN916

THE COMMISSIONER: And that's what you're talking about? That response then I think was about the difference between the A7 and the A9?---A7 I believe is the URO cover and A9 is the power reliability incentive program.

PN917

Thank you.

PN918

MR MCLANE: Are they distinct - - -?---Separate, distinct identities.

PN919

And is there an interrelationship between the two?---None that I'm aware of.

PN920

I have nothing further, sir.

PN921

THE COMMISSIONER: Thank you, Mr McLane. Yes, Mr Heelan.

<CROSS-EXAMINATION BY MR HEELAN [2.06PM]

PN922

MR HEELAN: Thank you, sir.

PN923

Mr Rolls, the first you heard of the 2880 incentive payment was in May 2005?
---21 May from my notes, yes.

PN924

A proposal put by the company?---By the company.

PN925

And that was in relation to the agreement that was subsequently certified by the Commission?---Subsequently certified? At the time the offer was rejected, but it was later accepted and part of the agreement and then ratified, yes.

PN926

The offer was rejected?---It was rejected.

PN927

Let's just go back to that. The proposal is put that the amount of $2880 is put by someone from the company?---No. 2250 was not offered. It was 2880.

**** MATTHEW PETER ROLLS XXN MR HEELAN
PN928

Yes, the proposal in relation to $2880 was put by the company?---Yes.

PN929

And the first time you heard that figure was from a company representative?
---I believe so.

PN930

Prior to that, had there been any discussion about payment of URO?---In our log of claims at the start of the agreement negotiations.

PN931

And in your negotiations?---We had raised it and the company nipped it in the bud, saying that the company was not willing to pay it.

PN932

And when the $2880 incentive payment was raised in May, that was in relation to the first ballot of the certified agreement?---Was in relation?

PN933

Was in relation to the negotiations of the first ballot on the certified agreement?
---It was in relation to us hearing that another union had got money for doing overtime and the company had told us no.

PN934

And so because the other union got some more money, some new money in their certified agreement, you claimed for a flow on?---Well, we and our members were adequately upset because the company was treating us - leaving us in the dark, giving it to someone else and saying we're not going to negotiate with you, so I can understand why the members were upset.

PN935

And that other union was the AMWU?---Yes, it was.

PN936

And then the CEPU?---And I believe then the AWU were getting payment for overtime as well.

PN937

A separate issue?---Okay.

PN938

And certainly there is no suggestion from the company about payment for overtime, Mr Rolls. Because the AMWU got some extra money in their agreement, a $2250 incentive payment and the CEPU achieved the same, you hit the company up for some extra money on the basis of the flow-on claim?---No, we didn't hit them up. We asked - - -

PN939

Claimed it?---We asked that something we'd been proposing for years, because there had been issues around people taking their in lieu days, not banking them, trying to take them, not having an adequate amount of people to take them and we said, well, if you're offering overtime for some people, why would you not pay our members overtime, which you did pre-'92 and then there wouldn't be a problem with coverage?

**** MATTHEW PETER ROLLS XXN MR HEELAN
PN940

And is that how the CFMEU first put the claim effectively for a flow on of the new money agreed to in - - -?---We first asked for it at the start of the agreement.

PN941

That was rejected?---That was rejected, but I believe at that stage no-one else had even approached the company or the company hadn't offered a retention or overtime money to anyone else either. We just floated the idea in a wish list, thinking that we might get half of what we were asking for.

PN942

And what did you ask for?---I would have to go back to my notes. I think it was in the realm of $3000.

PN943

And you didn't get half of that, you got none of that?---No.

PN944

The company rejected it?---Yes.

PN945

And the matter only came back on the table after the AMWU and the CEPU successfully negotiated a new allowance in their agreements, is that right?---After we found that other unions had got what the company told us we couldn't get.

PN946

Yes, and because the other unions got a $2250 incentive payment, you wanted it as well?---Wouldn't you, sir?

PN947

Because the other unions - - -?---Yes.

PN948

Because the company agreed to an incentive payment of - - -?---We're doing overtime for nothing and they're getting paid for it, then isn't that - I don't know, would you call it discrimination?

PN949

Mr Rolls, because the other unions negotiated a new allowance for $2250, your union wanted that as well?---Yes.

PN950

And when you first asked for it, you asked for it in the same terms as the other unions got it, didn't you?---Asked for it in the same terms? Can you elaborate on what you mean by that?

PN951

Compliance and retention incentive?---I was informed by another union delegate, from another union, that they were getting a money payment up front for saying, yes, we are available, you can ring us and then after that, when they come in to do the shift, they were then paid - the AWU workers I was told were paid 720 and the fitters were paid 850 for doing - per shift and that was after they got the money to say, yes, I will do it for you. Now, we were adequately upset of the two amounts when we were trying to be reasonable, open and up front and then deals were being done behind our back, when we were trying to put up a certified CA which we thought and we found out later on that the management we were negotiating with also had no idea that other management groups were doing this behind their backs.

**** MATTHEW PETER ROLLS XXN MR HEELAN
PN952

Back to the question. When your union first asked for new money, let's just call it new money under the certified agreement, it did so on the basis of wanting exactly the same as the AMWU and the CEPU?---Each certified agreement is a new document and we thought that it was a new claim under a new agreement, yes.

PN953

And you asked for $2250?---No, I think it was more like 3000, but I'd have to go back to my notes.

PN954

Sir, can I ask that the witness be shown exhibit H4 which is number 9 in the bundle of documents? The document you have before you, Mr Rolls, is an email from your union to Mr Ryan dated 5 July 2005?---This retention money is a separate issue to what you're asking. This retention money was the third allowance that the metallies got that we were asking for. The URO is a separately different issue to this. The URO was the 2880 issue. This 2250 was the retention money that the metallies got to stay with the company that we then - this is the issue that I've been told has been highlighted since I've been on holidays. I have not been on the negotiation for this 2250, no.

PN955

Do you see your name on the copy list?---It's more than likely come to both my home and my work emails, yes.

PN956

MR MCLANE: Perhaps the witness could be asked if he's seen the email before we dissect it, sir.

PN957

THE COMMISSIONER: I hope I'm looking at the right email. I'm just aware that Mr Rolls has been on long service leave in October. This is dated 5 July. Am I looking at the right one?

PN958

MR HEELAN: Yes, sir.

PN959

THE COMMISSIONER: Okay. Mr Rolls, do you want a moment?---Yes, sir.

PN960

Take a moment to read through it?---Yes. The first paragraph of the four options that were sent, yes. That was when the four options were sent back to the company, July. 21 May, I can recall and looked through my notes last night, where the four options were raised, that would also equal the time span on 5 July, yes.

PN961

Are you right? When you're ready?---Yes.

**** MATTHEW PETER ROLLS XXN MR HEELAN
PN962

Yes, Mr Heelan. What was the question, Mr Heelan?

PN963

MR HEELAN: Mr Rolls, at this point in time, do you agree with me that your union was seeking a retention allowance of $2250 and separately was putting alternatives in relation to URO?---Yes, by this email, yes, and I must say with the 1000 emails that have been flying around, I can't remember every one of them and I would have to go back to my laptop. I cannot recall us asking for the 2250 back in July. It wasn't until after another union got it.

PN964

I put it to you the other union had achieved it by then?---Okay, fine.

PN965

Do you see any mention there of $2880?---Any mention there of 2880? No, there's not. Your point, sir?

PN966

I will ask the questions, Mr Rolls. You had discussions with the representatives of another union, presumably the AMWU in relation to the allowance they negotiated?---Yes.

PN967

And this other representative said to you that they get the money upfront?---Yes.

PN968

And you believe that?---Well, would I - yes, I did.

PN969

You've acted on that ever since?---I acted on that? What do you mean by acted on that?

PN970

You've assumed that they get the money upfront and therefore you would as well?---Unless the deal has been changed previously.

PN971

You proceeded on the assumption that the AMWU received the incentive payment upfront, correct?---The first - the first part of their allowance, I was informed if you said, yes, you were available to do overtime, we will pay you this amount of money. If you refuse, then you don't get it.

PN972

I'm just going back to the evidence you've given today. Is your evidence that you spoke to a representative of the AMWU who told you that they received their incentive payment upfront?---Yes.

PN973

And you took that to be true?---And then he told me he was getting $850 per shift every time he come in on top of that.

**** MATTHEW PETER ROLLS XXN MR HEELAN
PN974

But that's for something entirely different, isn't it?---Overtime.

PN975

I put it to you that there is no overtime provision in the Mechanical Trades Agreement?---Has it been removed since I've been on long service, because I - - -

PN976

I put it to you that overtime was removed from that agreement with the introduction of APP?---And it hasn't been reintroduced with the last agreement they just signed off on?

PN977

Overtime?---Overtime?

PN978

No?---Then what is the company paying them $850 per shift for?

PN979

Mr Rolls, let's come back to the questions?---I think someone's been misleading you and I don't understand why.

PN980

Mr Rolls, you have proceeded on the assumption that the AMWU received their incentive payment upfront, correct?---That's what I was informed.

PN981

And because of that, you just assumed you would get it upfront as well, correct?
---No, I didn't assume, no.

PN982

No?---And it wasn't on - only on that, that we expected and we were never told any different. As I've said, the 321 was upfront - - -

PN983

Let's come back to the issue - - - ?---The other - if you - you asked me a question, can I answer it, please? Other issues over the years have been paid upfront, even the other people are saying that they haven't been.

PN984

So in relation to your belief, that the $2880 would be paid upfront, am I correct in assuming that that belief is based on what a representative of the AMWU told you, plus what happened with the transition payment back in 1992?---And not being told any different by the company.

PN985

And not being told any different?---Yes.

PN986

All right. You proceeded on the basis that if the AMWU were getting it upfront, so will we?---Well, yes.

**** MATTHEW PETER ROLLS XXN MR HEELAN
PN987

That's fair enough, except it was false?---Was it false?

PN988

I put it to you it was false?---I can't disprove that, sitting here.

PN989

I put it to you it was false. Not your evidence, but what you were told by the AMWU.

PN990

THE COMMISSIONER: This is just an evidentiary thing?---I hope I'm not being called a liar, because - - -

PN991

MR HEELAN: No, no, certainly not. Certainly not, Mr Rolls.

PN992

THE COMMISSIONER: Mr Rolls, he's not doing that. It's an evidentiary thing. It's Jones and whatever it is, and he's just putting it to you.

PN993

MR HEELAN: I'm not saying that what you've said is false, I'm saying that what the AMWU representative said to you was not factual.

PN994

THE COMMISSIONER: Anyway, I think we'll just move along.

PN995

MR HEELAN: Now, at Wagerup, prior to the current agreement being certified by the Commission, all URO absences were covered, weren't they?---Yes.

PN996

And you had a roster in place?---Yes.

PN997

Which worked effectively for the members of the crew?---Yes.

PN998

And it worked effectively for the company?---Yes.

PN999

Because at any given point in time, an employee who was on days off knew when he or her was likely to be called because the names will be rotated through the roster?---Yes.

PN1000

So, what, three or four occasions per year an employee on days off would be on call for a recall for URO purposes?---No. Two days, two nights after every shift block you will be on call.

PN1001

But the individual employees always knew when they were on call?---You were at one - with three of us on shift, you're at 1, 2 and 3 on the call-out list. If 1 was unavailable, 2 got called. If 2 had already been called in that block, then 3 got called, but it wasn't unusual that with three guys on a shift, that there have been people that have been called for two overtimes in the one six days off, each.

**** MATTHEW PETER ROLLS XXN MR HEELAN
PN1002

But it worked because the crew made it work?---Yes. And if they - that shift had done one, then we would go to another shift and ask, can you now cover up, they've done one each for this break.

PN1003

Through union influence, it worked?---I wouldn't say union influence. I'd say --

PN1004

Rolls' influence?---I would say peer group pressure.

PN1005

Fair enough. But it worked?---Worked.

PN1006

There weren't any problems with it?---There's problems with everything.

PN1007

There weren't any major problems with it?---There probably were no major problems with it, no.

PN1008

And everyone was pretty happy, the employees and management?---I believe so.

PN1009

The employees doing the extra shifts received time in lieu?---Not at first, no.

PN1010

After some years, under APP?---I believe it was five years.

PN1011

Now, when did you start your long service leave?---Exact date? Somewhere in October.

PN1012

Early or late?---Would you like me to get my laptop out?

PN1013

Was it before the agreement was certified by the Commission?---I think I started my leave before the certification. I come here for the certification while I was on holidays.

PN1014

So do you have any firsthand knowledge as to how it's worked at Wagerup since that point?---I do get emails and phone calls quite regularly from members asking me to sort things out and what's going on and why are you allowing this to happen, yes.

PN1015

Disgruntled members?---Yes.

PN1016

Who contact you on your leave?---Yes.

**** MATTHEW PETER ROLLS XXN MR HEELAN
PN1017

Is their main complaint that they're being required to work extra shifts for URO cover and they're not being paid for some months down the track?---They - they
- Wagerup, I believe, is still happy to supply, but if there was a promise of money because of the supply, they would prefer to get it when it was promised. Now, I believe there hasn't been a problem with running short at Wagerup. I believe they're still covering up. When this issue is sorted out, whether it's in arrears or in - I believe that the members will get what is due to them.

PN1018

So what's the complaint at Wagerup precisely?---That they haven't got the portion or the 2880 as an on - on the signing of the document.

PN1019

Who told them that they would?---Well, they were never told one way or the other because we were never - we never sold it as that, at any meeting. The question wasn't asked. We never asked - because the deal with the 2880 was done on the death knock of the agreement, it was probably not as talked about or as elaborated on as maybe it should have been.

PN1020

Is it likely - - - ?---And we probably made some assumptions. The company didn't dispel those assumptions; because of other things that were going on at the time, we just assumed that it would be paid as the increase, the increase to base, the increase to shift, the increase to go to PC2, 3 or 4 once you got the qualifications, was to be paid after the date of ratification.

PN1021

Is it likely that some of your members at Wagerup are disgruntled because they think members of other unions get compliance or retention payments upfront and they don't get the URO payment upfront?---I believe there are a few members at Wagerup who have friends who are in the metallies, and they do come up to the control room and they do, for a better word, arc up some of my members. One of the most disgruntled ones I believe sits quite regularly with metallies in the control room and they do feed him information and I'm not quite sure whether most of the information is just to arc him up, but - - -

PN1022

Is this at Wagerup?---At Wagerup. I've been on shift with that shift when it's happened.

PN1023

So it's quite likely that your disgruntled members are disgruntled because they think the metallies are getting it upfront and they're not?---Well, seeing as you've told me it's false, I'll go back and prove one way or another to myself, once I leave here.

**** MATTHEW PETER ROLLS XXN MR HEELAN
PN1024

We'll do that today, Mr Rolls?---And will we be informing the Commissioner of that outcome, seeing as we've said that now it's not happening?

PN1025

That will be part of our case. Now, prior to the ballot on the agreement as certified, so ballot number 2, you raised a number of issues by way of email with Mr Watt - - - ?---Yes.

PN1026

- - - in relation to URO coverage?---No, I don't believe that email was for URO coverage. That was for the payment of the incentive, WA01 power wheeling, when would the guys be trained and when would we take over the management of the power system. I don't believe that email - from memory, I hope - if you'd like to show me, I don't believe that was for the URO payment, no.

PN1027

If I could ask that the witness be shown a document. It is not in the bundle, sir.

PN1028

THE WITNESS: Thank you. Okay. I apologise. This is another email to the one I was speaking of.

PN1029

MR HEELAN: You agree that before you is an email from you to Mr Watt dated 19 August - - - ?---I was clarifying because one of the documents that Mr Keeley spoke of that come out, which was a wrong document from Kaye Butler had removed the word "voluntary". Now, the troops had got back onto me and asked what was being done here, were we now making UROs mandatory or still voluntary? Now, I sent those emails asking Pat the question from a wrong document which had then been, after this sent, had been rescinded and the proper document had been sent out.

PN1030

The questions you posed to Mr Watt were as follows:

PN1031

1. What is the 2004 acceptable level for sick days that we have to equal or better.

PN1032

And I conclude the quote; correct?---Yes. Yes.

PN1033

The second question you posed was:

PN1034

2. What happens if we do go one day over this level? Do we lose the incentive.

PN1035

And I conclude the quote?---Yes.

**** MATTHEW PETER ROLLS XXN MR HEELAN
PN1036

The third question you posed to Mr Watt was:

PN1037

3. Say our shift has done four UROs each, and another is required, do we have to cover as it is no longer voluntary?

PN1038

And I conclude the quote. Correct?---I was being sarcastic because the word voluntary had been removed out - - -

PN1039

Is that the question - - - ?--- - - - of that document. Yes.

PN1040

That's the question you posed to Mr Watt?---Yes.

PN1041

The fourth question you posed was:

PN1042

4. The new document says we have to cover unplanned absences. Does this include sick co-ords, et cetera?

PN1043

And I conclude the quote?---Because the PC4, new job, is also - the shift leading hand, will our members be required to cover co-ord sickness as well, yes.

PN1044

These are all questions you put to Mr Watt, your supervisor?---Yes.

PN1045

Sorry - yes, your supervisor?---Yes.

PN1046

Prior to the vote on the agreement?---Yes, it would have been prior to the vote because that document was rescinded and replaced with a new one, yes.

PN1047

Would you have the Commission believe that at the time you posed these questions to Mr Watt, that you believed that the payment for the URO was going to be upfront?---Yes.

PN1048

Because that's what the metallies got?---Sorry, I don't know why you keep going to that, but that was my understanding.

PN1049

Sir, I put it to you, you asked those questions of Mr Watt because you didn't want to miss out on the payment. You knew you had to deliver something to get the payment and you didn't want to miss out?---No. Not the case.

PN1050

Now, the transition payment you referred to earlier when APP was introduced was something unique and in isolation, was it not?---Unique and in isolation? Meaning unique in what way, sir?

**** MATTHEW PETER ROLLS XXN MR HEELAN
PN1051

Unique as in unique?---Unique as in never happened before? I'm not - I haven't worked for the company for 50 years, so I don't know whether they've done it before, no.

PN1052

Sir, if I could ask that the witness be shown another document? He has it in the bundle, but it is a letter to the witness on 27 July 1992, at the time APP was - sorry.

PN1053

THE WITNESS: Thank you.

PN1054

THE COMMISSIONER: This is a letter to Mr Matthew Rolls dated 27 July 1992.

EXHIBIT #H8 - LETTER TO MATTHEW ROLLS DATED 27/07/1992

PN1055

MR HEELAN: Thank you, sir.

PN1056

Mr Rolls, is the document before you the correspondence from the company confirming your entitlements under the APP system?---It appears to be so, yes.

PN1057

Mr Rolls, in your evidence-in-chief, in response to a question from Mr McLane, you said that - - -

PN1058

THE COMMISSIONER: Sorry, Mr Heelan, just a second. I don't want to get you out of step, but is someone missing a page 2? Because I have two. I have one of page 1 and two of page 2 and two of page 3. As long as nobody else in the room is missing, I'll proceed with this.

PN1059

MR HEELAN: I had some surplus pages, that's why it took me a while to get it, Commissioner.

PN1060

THE COMMISSIONER: No problem.

PN1061

MR HEELAN: Mr Rolls, in response to a question from Mr McLane, you said that if the employees at Wagerup knew that the $2880 incentive payment will be paid in arrears, your evidence was that they would have voted differently?---I believe so, and I've had members tell me so, yes.

PN1062

Had that occurred, all that would have happened is that your union would have then immediately moved to have the Commission certify the agreement that was balloted on the first time, is that right?---It was an in-principle vote. Yes.

**** MATTHEW PETER ROLLS XXN MR HEELAN
PN1063

The position of the union was that if ballot number 2 did not approve the agreement - - - ?---The first ballot - - -

PN1064

- - - it would immediately move to certify the agreement the subject of ballot 1?
---I'm not quite sure of how some of the disgruntled members would have reacted to that, as it was an in-principle agreement, given the first time around. On provisos that we get an understanding around a couple of factors and one of them was the URO, payment of 2880 or something similar.

PN1065

If I might just have a minute, please, Commissioner?

PN1066

THE COMMISSIONER: I'm just assuming that from what I've gathered, putting two and two together and trying to make 10 out of it, but the first thing that went to the first vote was the agreement, with a different A7, A8 and A9, I take it, is it?

PN1067

MR HEELAN: Different A7 only.

PN1068

THE COMMISSIONER: A different A7 only? Okay.

PN1069

MR HEELAN: And it simply perpetuated - - -

PN1070

THE COMMISSIONER: And it was a different A7 and the second vote was only in respect of the new A7? Was it?

PN1071

MR HEELAN: Essentially. There were a couple of pedantic changes, as I understand it, but pedantic only. The first agreement balloted on - - -

PN1072

THE COMMISSIONER: There was an agreement and it was balloted on.

PN1073

MR HEELAN: And it provided for URO cover.

PN1074

THE COMMISSIONER: Yes, with an A7, but it was different to this?

PN1075

MR HEELAN: An A7 in different terms to the one currently before you, sir.

PN1076

THE COMMISSIONER: The second vote was only in respect of the current A7 as it sits in the agreement?

PN1077

MR HEELAN: No, in respect of the agreement, including a new A7.

**** MATTHEW PETER ROLLS XXN MR HEELAN
PN1078

THE COMMISSIONER: Did the whole thing go back? Is the second vote on the whole lot, is it?

PN1079

MR HEELAN: Yes, sir. They're my instructions, yes. Sir, if I could ask that the witness be shown another document? It's document number 14 from the bundle that we filed.

PN1080

MR MCLANE: Sir, I'm just receiving some instructions in relation to that question - - -

PN1081

THE COMMISSIONER: My question, yes?

PN1082

MR MCLANE: - - - that you put to Mr Heelan. I'm just not sure that I'm able to - if I could just have a moment to get those instructions before I - - -

PN1083

THE COMMISSIONER: Yes. Well, you haven't finished your evidence, your submissions, but I was just trying to get on top of this. If there's a disagreement between the two of you, I'd like to know that so at least I can - - -

PN1084

THE WITNESS: Can I clarify something, sir?

PN1085

THE COMMISSIONER: No. Just wait until we hear from Mr McLane.

PN1086

MR MCLANE: Sir, I'm just instructed that at the second meeting, the vote wasn't on the body of the agreement. It was in the first instance, the first meeting, but the second meeting, it was wholly and solely on the second A7, or the amended A7. I don't know if that puts us at odds?

PN1087

THE COMMISSIONER: It sounds like it. Perhaps I could just make - what do you say? Were you at the second meeting?---Yes, sir.

PN1088

What was your understanding?---We were asked to go to a vote for the first meeting, even though there were still some problems with the document and URO and the 2880 and other issues, to give an in-principle - the members to give an in-principle to progress forward with a mindset to Mr Howard's closing dates of when we needed to have a certified agreement available to cover our collective backsides. We gave the company an in-principle at the time with some provisos that some issues were further discussed, being the URO and some other issues which I haven't got my hands on at the moment. I wouldn't quite call them pedantic at the time, they were quite - they mattered a lot to members, that we try and get some more discussion or some outcome on some of these issues before they gave us the approval to go ahead.

**** MATTHEW PETER ROLLS XXN MR HEELAN
PN1089

I'll say no more. I'll just leave it to the advocates now to mop up from that. Thank you, Mr Heelan.

PN1090

MR HEELAN: Thank you, sir.

PN1091

THE COMMISSIONER: This is headed with Graeme Kipps.

PN1092

MR HEELAN: Thank you, sir. For identification purposes, sir, it's the email at the bottom half of the email which is relevant, which is an email from Gary Wood, secretary of the union, CFMEU WA to Robert Ryan dated Tuesday, 23 August 2005. The email at the bottom is from the CFMEU WA dated Monday, 15 August 2005 to a large number of people.

EXHIBIT #H9 - EMAIL FROM SECRETARY CFMEU WA TO ROBERT RYAN DATED 23/08/2005 AND EMAIL FROM CFMEU WA DATED 15/08/2005 TO LARGE NUMBER OF PEOPLE

PN1093

MR HEELAN: Mr Rolls, if you turn over the page of that email, do you see the text of Mr Woods' email to Powerhouse operators who are union members?

PN1094

THE COMMISSIONER: Is Mr Rolls' name there?

PN1095

MR HEELAN: If I could have a moment, sir?

PN1096

THE WITNESS: Yes, sir. Second page, halfway down, middle of the line.

PN1097

THE COMMISSIONER: There you are. Yes. Thank you, Mr Heelan - - -

PN1098

THE WITNESS: That seems to be Gary's intention at the time. If the A7 got defeated, that we would go ahead with the in-principle on the rest of the agreement.

PN1099

MR HEELAN: It's binary, isn't it? Unambiguous? Crystal clear?---That seems to be Gary's intention, to go ahead with the URO the way it stood, yes.

PN1100

In fact he says:

**** MATTHEW PETER ROLLS XXN MR HEELAN
PN1101

To ensure all members are clear on the process, should the vote on the amendment to A7 be defeated, the original certified agreement at appendix A7 is voted on at the meeting on Monday, 18 July, will be registered forthwith.

PN1102

I conclude the quote. Now, Mr Rolls, that first ballot, your evidence is that it on in-principle issues?---Yes. The company asked us to go to the troops and get an in-principle on the agreement so we could move forward before Mr Howard's closing date came.

PN1103

The company asked you to?---Yes.

PN1104

Who from the company asked you to do that?---Our two representatives sitting here today.

PN1105

Sir, I'd ask that the witness be shown another document? It's document number 7 in the bundle that we filed.

PN1106

That was the mail-out to employees of the first agreement for the ballot?---First time around.

PN1107

Sent out by Mr Ryan on Tuesday, 28 June 2005.

EXHIBIT #H10 - MAIL-OUT BY GARY RYAN TO EMPLOYEES DATED 28/06/2005

PN1108

MR HEELAN: Mr Rolls, attached to that notification is a proposed certified agreement?---Yes.

PN1109

Sir, I'd ask that the witness be shown a further document. It's document number 8 in the bundle that we filed, which is the letter from the union confirming the outcome of the ballot, on the first ballot.

PN1110

THE COMMISSIONER: This is a two-page document. The first is an email from Mr Robert Ryan - no, to Mr Robert Ryan on 19 July which attaches a letter, an unsigned letter, from Mr Wood to Mr Ryan on 19 July 2005?

PN1111

MR HEELAN: Yes.

EXHIBIT #H11 - EMAIL TO ROBERT RYAN DATED 19/07/2005 ATTACHING UNSIGNED LETTER FROM MR WOOD DATED 19/07/2005

PN1112

MR HEELAN: I would suggest, Commissioner, the reason it is unsigned is because it was sent by email.

**** MATTHEW PETER ROLLS XXN MR HEELAN
PN1113

THE COMMISSIONER: Right.

PN1114

MR HEELAN: The second page of that, Mr Rolls, you see the letter from the union to Mr Ryan?---Yes.

PN1115

Is there anything there about the $2880 issue or the in-principle vote?---Because it's not mentioned here doesn't mean it wasn't an issue and wasn't spoken about. I could probably go through and print off a thousand emails which will show differently to what you're throwing at me here.

PN1116

But this is the advice from your union to your employer about that ballot, that you say was in-principle; that's not what your union says, is it? Is it?---That is not what this email is saying, no.

PN1117

Now, at the ballot, the second ballot, did anyone actually stand up and say, "Members, this new allowance will be paid upfront"?---No.

PN1118

Did anyone stand up and say, "Members, this new allowance will be paid six months in arrears"?---No.

PN1119

Nothing was said about it?---No.

PN1120

I have nothing further, sir.

PN1121

THE COMMISSIONER: Yes, Mr McLane?

PN1122

MR MCLANE: Thank you, sir.

<RE-EXAMINATION BY MR MCLANE [2.46PM]

PN1123

MR MCLANE: Just while you've still got that, I'll refer to that exhibit H11, at tab 8, and the letter of the CFMEU dated 19 July 2005. Have you ever seen that letter before, Mr Rolls?---With the amount of things that come through my email, my mail, I could not - I'm sure I have. To my recollection, I can't say that it burnt in my memory, no.

PN1124

Okay. So do you recall seeing it or not? It's a different question; do you recall seeing it?---Do I recall seeing it? All I could say, sir, is I must have.

PN1125

No, I don't want you to - you either recall it or you don't?---I can't - I can't say that, under oath, no, that I have definitely seen it before, no.

**** MATTHEW PETER ROLLS RXN MR MCLANE
PN1126

I understand, and you answered that clearly, that's fine?---No.

PN1127

But do you recall having seen it?---Do I recall having seen it?

PN1128

Do you remember seeing it? You either do or you don't?---No.

PN1129

Thank you. No, that's fine. I don't need you to go to that any more. It can be given to the associate. I just want to take you to the question as to if - I'm asking you for your opinion based on your knowledge and experience in the negotiations, if the - and I - I'm sorry, let me come at that again. I'm sorry. Mr Heelan took you to the question of the 2880 URO allowance in the attachment?---Yes.

PN1130

Your evidence was, if I recall correctly, that the first time it went to the meeting, it wasn't in there?---No.

PN1131

And in-principle agreement was given to the agreement?---If we further investigated, money for UROs is set at in lieu days.

PN1132

Now, if that hadn't been - if the position hadn't been reached that was finally reached, where there was agreement on that, would you and your members have continued to provide the cover that you'd previously provided, ie. without being paid?---I would have to speak for a lot of other people, which haven't given me that - - -

PN1133

I'm just asking for your opinion?---No.

PN1134

They wouldn't have continued to work it?---I don't believe so, from what I was hearing.

PN1135

Thank you. Do you think that the company was probably hearing the same messages you were hearing?---I believe that the more vocal members at Pinjarra were making them aware of that.

PN1136

You were asked whether the transition payment at the time of the APP being implemented in 1992 was unique. Are you aware - are you able to tell us whether that was something that only the CFMEU got, the transitional payments, or did other unions get that as well?---I don't know for sure, but I believe it was across the board when - you went onto APP and stopped getting paid for overtime, the transition allowance was a part of the deal.

**** MATTHEW PETER ROLLS RXN MR MCLANE
PN1137

Okay. I put it to you that that's hardly - - -

PN1138

MR HEELAN: Well, I object to that. It's hardly the position for re-examination to be putting things to witnesses, may it please the Commission.

PN1139

MR MCLANE: Right. Are you aware of one-off payments being paid by Alcoa to other work groups in any circumstances during your time of employment there?---One-off payments?

PN1140

THE COMMISSIONER: I'm sorry, was the question about upfront payments?

PN1141

MR MCLANE: One-off, upfront payments.

PN1142

THE COMMISSIONER: I see.

PN1143

MR MCLANE: Yes. In other circumstances, might be at other sites or with other work groups; do you have any knowledge of that or not?---The ones that I've - that the AMWU that I've been informed by Mr Heelan was false, the transition allowance, I believe that people have been paid up - no, it's not, sorry. I apologise. Not upfront. If you step up and do a coordinator's job as a leading hand, you get paid at the end of the fortnight for that. Upfront payments?

PN1144

Do you have any contact with the mining people, people who drive the machinery in the mines?---Some.

PN1145

Are you aware of any payments that they might have got for moving sites, for example?---No, I'm unaware.

PN1146

Okay. Fine. You were also asked in relation to the UROs, and the issue of whether they were voluntary came up. What is your review in relation to how those absences will be covered if - and if - the situation is ever reached where everybody has worked their four? How do you propose to deal with that?---That was one of the other questions that I did ask Pat that hasn't come up in an email. Or it hasn't been provided for the court. The answer that Pat gave me on that one was it would revert back to the system how it is now. Once you've done your four for your 2880, it will revert back to mealy, travel, and you get a day in lieu.

PN1147

All right. So as far as you're concerned, would you continue to provide that coverage?---Yes. It's my job.

**** MATTHEW PETER ROLLS RXN MR MCLANE
PN1148

So as far as you're concerned, if it goes to six days, there will be coverage?
---There'll be coverage.

PN1149

And that's how you've always done it?---Always done it.

PN1150

Can you just explain to the Commissioner some of the motivation and why you do that - - - ?---Where you - - -

PN1151

- - - because you say other groups don't, and what is it that drives - - - ?---Other groups don't have - - -

PN1152

- - - you particular guys to do that?---Other groups don't have a nationally-accredited ticket. They aren't qualified engine drivers, they aren't running coded machinery. The mindset of protecting our job, then our kids will have a job. If we allow areas to run short, then the company will say, "You've proved that you can run a power station with one or two people, why do we want to keep five or six?" Now, whether it's run unsafely at smaller numbers or the jobs aren't done or the place falls over, the maintenance isn't done, the oils, greasing, leaving the plant unsafe, in an unsafe condition, then if something happened and we killed somebody, then not only will you lose your ticket, there's 25 years federal gaol time hanging over our heads.

PN1153

Is there something - is there a peculiar trait amongst engine drivers and power station operators, and a pride in what they do - - - ?---Yes.

PN1154

- - - that maybe drives some of this?---Yes.

PN1155

Well, can you explain some of that?

PN1156

THE COMMISSIONER: You get the right to re-cross-examine, if you wanted to, yes.

PN1157

THE WITNESS: It started many, many years ago. We believed that the whole of job concept, the whole job being done, people always being available, people wanting to come to work. The word voluntary, I think, was struck on before. It's always been voluntary to do UROs. It was voluntary for the union. If one member couldn't do it, the next member could and we'd go down the line until we found someone, and eventually, everyone would do the same number. But now we've written in that it's voluntary if you want to do any. Now, I think there was an issue where Pat had said to me, what if we get someone that won't do any? Then we need to talk about that issue and then at a later time, that 2880 or a component of may be - with approval of the company and the union, that person may lose that benefit, if they refuse to supply, then they may lose.

**** MATTHEW PETER ROLLS RXN MR MCLANE
PN1158

MR MCLANE: Do you expect that problem to arise?---I would say yes.

PN1159

Right. I always ask one too many, I do. Earlier on, you gave evidence about - and you used the word "promises" and it was in relation to people being disgruntled about the URO. Do you recall that?---Mm.

PN1160

What do you mean by promise? What was promised that hasn't been delivered?
---Well, the troops believed that they were going to get payment for the URO on ratification of the document, whether it had been 2880 upfront or 1440 in two lump sums, they don't believe it's come upon ratification. They believe the company's holding out on them. For whatever reason, whether it be a disgruntled site out of the three, or whatever, they believe they haven't got what was promised to them.

PN1161

Now, your evidence was, I think, that the URO is a separate, standalone item?
---Entity.

PN1162

Entity; the transitional payment likewise?---Standalone entities. Nothing to do with the base, the shift. There was no incentive programmes back then.

PN1163

Okay, good. The wheeling power?---The incentive for wheeling and reliability referred to as WAO1 incentive, is different entity to the 2880 URO payments.

PN1164

You're very clear about that?---Clear as crystal.

PN1165

No intermeshing?---No intermeshing at all.

PN1166

One is not dependent on the other?

PN1167

Just two moments, if I could, sir?

PN1168

THE COMMISSIONER: Yes.

PN1169

MR MCLANE: Are you aware of the term, Supplementary Shift Payment?
---Supplementary shift payment?

PN1170

THE COMMISSIONER: If there is an objection - if this is relevant, you can press on, but I'm happy to give Mr Heelan the right - - -

**** MATTHEW PETER ROLLS RXN MR MCLANE
PN1171

MR MCLANE: It raises out of the - - -

PN1172

THE COMMISSIONER: - - - of cross-examination.

PN1173

MR MCLANE: Sorry. Certainly, sir. I don't mean to - and I submit that I'm not raising anything new. The term is new, yes, but it arises out of the cross-examination in relation to the metalworkers and what they're getting paid and what deals were done and all the rest.

PN1174

THE WITNESS: So it's not called overtime, it's called supplementary shift payment?

PN1175

MR MCLANE: I am asking you, are you aware of - - - ?---I haven't heard of that term, no.

PN1176

Okay. I'll leave it at that, sir, but it wasn't me that told the fibs about the deals the metalworkers were - I didn't negotiate those.

PN1177

THE COMMISSIONER: Right, thanks for explaining that, otherwise I'd have to put you in the box, Mr McLane. Mr Heelan?

PN1178

MR HEELAN: Just two quick ones, sir. The first was in response to a question in re-examination about whether or not the members would have continued to provide URO cover if they were not paid.

PN1179

THE COMMISSIONER: That was the opinion. He said he wasn't authorised to say that. Is that the one we're talking about?

PN1180

MR HEELAN: Yes, I just - - -

PN1181

THE COMMISSIONER: But he was pressed for an opinion.

PN1182

MR MCLANE: That's correct, sir.

**** MATTHEW PETER ROLLS RXN MR MCLANE
PN1183

MR HEELAN: I was just concerned that that doesn't answer the whole question. I was proposing to ask a question, if the earlier time in lieu arrangements applied, would that change the answer.

PN1184

THE COMMISSIONER: Yes, I'll allow that.

<FURTHER CROSS-EXAMINATION BY MR HEELAN [3.00PM]

PN1185

MR HEELAN: Mr Rolls, in response to a question from Mr McLane, you said that if the employees would not have continued to provide URO cover if they were not paid - - - ?---If these other payments hadn't have come up and we found out about them from other sources, then you'll probably find the arrangement that we'd been running for the last 14 years would have continued.

PN1186

Which is time in lieu?---Which - no. Which wasn't, but is now time in lieu, yes, with travel and mealy, would have continued, I believe, unless the company wanted to knock that on the head which - is that what you're asking?

PN1187

Just to get this accurate, it started off being no time in lieu, it was just URO coverage; you got paid for it?---You did it and you - - -

PN1188

Then you changed to the time in lieu system?---Yes.

PN1189

And then you changed to the current agreement system?---Which - yes.

PN1190

Yes?---We're still working on the time in lieu system until apparently this issue is sorted out.

PN1191

You're not working in accordance with the new certified agreement?---I haven't been at work since it's been ratified, but I believe they're still covering, but I believe they're still getting time in lieu until the payment starts.

PN1192

I only have one further question, sir. That was in relation to a response provided right towards the end. My question was simply as a follow-up to that response. Is this issue about a disgruntled site among the three?

PN1193

MR MCLANE: Well, I haven't raised anything about that, sir.

PN1194

MR HEELAN: The witness has answered it, though.

**** MATTHEW PETER ROLLS FXXN MR HEELAN
PN1195

MR MCLANE: I didn't put a question, anything like that.

PN1196

THE COMMISSIONER: I can't remember the issue about - there was something about Pinjarra. Is that what you're talking about? There was something about - - -

PN1197

MR HEELAN: The witness's answer towards the end covered something about
- well, it led me to want to ask the question, is this issue about a disgruntled site out of the three.

PN1198

THE COMMISSIONER: I think we'll let that one go.

PN1199

MR HEELAN: Thank you, sir. I have nothing further.

PN1200

THE COMMISSIONER: Thank you.

PN1201

MR MCLANE: Sir, I'm sorry, sir. There was just one thing arose out of that. I will be very brief, sir.

PN1202

THE COMMISSIONER: Yes, okay.

<FURTHER RE-EXAMINATION BY MR MCLANE [3.03PM]

PN1203

MR MCLANE: The agreement that you've just come off, or since the time off - sorry. At the time of the APP and the previous agreements, were manning levels a part of that?---Manning levels were a part and guaranteed in the old agreement.

PN1204

What about the current agreement?---No manning levels. The company will not talk about manning levels and want to slash and burn our numbers.

PN1205

Okay. Thank you.

PN1206

THE COMMISSIONER: Do you want to have another go at that or we'll
just - we'll let it go and I think clear that up in further evidence - - -

PN1207

MR HEELAN: If the Commission thinks there is any relevance to it, to the issue at hand. If not, I won't.

PN1208

THE COMMISSIONER: No. No, I don't think so.

PN1209

MR HEELAN: Thank you, sir.

**** MATTHEW PETER ROLLS FRXN MR MCLANE
PN1210

THE COMMISSIONER: Thank you very much, Mr Rolls. You're excused?
---Thank you, sir.

<THE WITNESS WITHDREW [3.03PM]

PN1211

THE COMMISSIONER: Just by way of procedure, what I had in mind, Mr McLane, when I started was that we'll hear your case. So we'll now go on and finish your submissions in respect of - we're going to have a break, we're going to have a short adjournment here, just to have a cup of tea, but we'll just resume with your outline of submissions, okay? And finish you, and then Mr Heelan will then do his thing and because you don't know what's happening, I said I was going to allow you a very short right of reply, as you're the applicant, at the end. Unless you want to talk between yourselves and when I come back - - -

PN1212

MR MCLANE: If we could, sir, yes.

PN1213

THE COMMISSIONER: Well, why don't you have a talk between yourselves? The other thing is we need to look at the time. You have three witnesses.

PN1214

MR HEELAN: I'm confident we'll - - -

PN1215

THE COMMISSIONER: You reckon you'll do it today? We'll just go off the record for a second.

<SHORT ADJOURNMENT [3.04PM]
<RESUMED [3.20PM]

PN1216

THE COMMISSIONER: Thank you. Yes, Mr McLane?

PN1217

MR MCLANE: Yes. I was going to leave that to Mr Heelan.

PN1218

THE COMMISSIONER: Do you want to talk on the record or off the record at this stage?

PN1219

MR HEELAN: Whatever is more convenient to you, sir.

PN1220

THE COMMISSIONER: If we're talking about timing, let's just go off the record.

PN1221

MR HEELAN: Yes, sir.

<OFF THE RECORD

PN1222

THE COMMISSIONER: The process we've agreed to is that we're going to hear Mr Heelan's witnesses first of all, and finalise that. Mr McLane is then going to put his submissions and Mr Heelan, we're going to mark his outline of submissions and I will address certain queries on that to Mr Heelan. Mr Heelan will then have until close of business on Friday to respond in writing, if he wishes to make further written submissions, and Mr McLane will then have until close of business on next Tuesday if he wishes to make further written submissions in the light of the written submissions of Mr Heelan. Yes, Mr Heelan?

PN1223

MR HEELAN: Thank you, sir. Firstly, sir, I refer to the written outline of submissions filed by the company on Monday, and would request of the Commission that that be marked.

PN1224

THE COMMISSIONER: What's the last page of that? That's the one that finishes, "The Likelihood of Claims", or do you want to have the - - -

PN1225

MR HEELAN: It's the one that finishes The Likelihood of Claims, sir.

PN1226

THE COMMISSIONER: Very well.

EXHIBIT #H12 - RESPONDENT'S WRITTEN OUTLINE OF SUBMISSIONS

PN1227

MR HEELAN: Thank you, Commissioner. Based on what was discussed off the record, what the Commission has just put on the record, I just want to confirm that the company would be providing a written - a supplementary in relation to our outline by close of business on Friday, simply to replace the oral submissions I would have made today. Sir, by way of summary, our submission is that this issue is about one of two things; it is either about the interpretation of the provision of a certified agreement, and that is the manner in which we framed our submissions and our witness statements, or secondly, it is about a claim, for example, based on industrial fairness.

PN1228

In my respectful submission, if one goes to the section 99 application made by the union as well as the section 170LW application the subject of these proceedings, and the union's outline of submissions filed on 30 January, our submission is that the union's case is very much based on the second approach. If that is the case, in our respectful submission, the issue hits a brick wall. That is because of the no extra claims provision prescribed by clause 28 of the certified agreement which is contained at item 33 in the bundle of documents we filed on Monday. If that was the case, in our respectful submission, the claim on the proceedings would be blocked by virtue of clause 28, and that would be the end of the matter.

PN1229

However, on the basis of the Commission conducting an interpretation, we say the following is very important. By way of background, the implementation of what's known as the annualised pay package, or APP arrangements in 1992, which in our submission involved a buying-out of overtime entitlements and all other entitlements to extra payments and allowances with the exception of shiftwork; it also included a buy-out of additional time, including for the purpose of URO coverage. Notwithstanding, and on the basis of industrial fairness, the company agreed to pay twice, in effect, by implementing the system of effectively time in lieu somewhere between three years ago, if one has regard to the evidence of Mr Watson in his affidavit, or a bit further back in time having regard to the evidence of the union's witnesses today.

PN1230

THE COMMISSIONER: Is it so that this time in lieu arrangement was never reflected in a certified agreement?

PN1231

MR HEELAN: That's my instructions, sir. Yes. Perhaps time in lieu may the wrong terminology.

PN1232

THE COMMISSIONER: Yes.

PN1233

MR HEELAN: A re-roster may be more appropriate in that an employee would work an additional shift, or an unrostered shift for the purposes of providing URO coverage and would then not work a rostered shift some time in the future as compensation for having worked that unrostered shift.

PN1234

THE COMMISSIONER: What I didn't really understand was, well, if they didn't work the rostered shift at some time in the future, why then didn't someone have to then work that rostered shift? Until I heard about a utility day which I didn't know what that meant?

PN1235

MR HEELAN: Yes. Well, the utility days are perhaps best dealt with by through evidence, the Commission may get more - - -

PN1236

THE COMMISSIONER: I've got the general drift, anyway. It was a rostered day - it was a re-roster and a person wasn't required to work on that other rostered day.

PN1237

MR HEELAN: Yes, sir. In our submission, with the new certified agreement, the company agreed to implement an even more lucrative approach for employees where an incentive payment would be paid if URO coverage was delivered as prescribed, and employees would get more, considerably more dollars, than the value previously of the re-roster or time in lieu arrangements, and so the arrangements under the current certified agreement were better than the arrangements when the company was effectively paying twice for the time. The industrial circumstances are also - - -

PN1238

THE COMMISSIONER: Sorry, what was that about paying twice for the time?

PN1239

MR HEELAN: Well, my submission is that the - - -

PN1240

THE COMMISSIONER: Time in lieu is just time for time, isn't it?

PN1241

MR HEELAN: Yes. Certainly.

PN1242

THE COMMISSIONER: You don't get a double time, time in lieu, you just get a re-roster and another day off. So it's just time for time.

PN1243

MR HEELAN: My submission in relation to the paying twice goes back to having paid for it already with the introduction of APP. That was paying for the URO cover the first time, the time in lieu was paying for it twice, and now the current arrangements are even more lucrative, in my respectful submission, because it's possible that an employee would not work any or not work many additional shifts for URO purposes, still have been paid out, or get the benefit of having been paid out under APP and now get payment based on having done up to four days, when the employee may have only done one or perhaps none.

PN1244

So in my respectful submission, the current arrangements are more lucrative for employees than those applying with the time in lieu or re-roster arrangements previously in place, and having regard to the fact that those time in lieu or re-roster arrangements effectively involved the company paying twice for the URO cover. The industrial circumstances are also an important consideration, in our respectful submission, given that the dollars the subject of the incentive payment essentially flowed from payments agreed to by the company in certified agreements for other work groups. The context of the certified agreement is also an important factor.

PN1245

This is not a traditional-type certified agreement and it prescribes non-traditional type entitlements reflecting the APP approach. Sir, I now propose to call our first witness, Mr Patrick Watt.

PN1246

THE COMMISSIONER: Yes, thank you. Mr Heelan, I take it you're not taking a jurisdictional objection if the matter is going to be determined under section 170LW?

PN1247

MR HEELAN: My submission, sir, is that if this is an interpretation of a certified agreement provision, that's one thing. But on the other hand, if this is a claim based on industrial fairness, well it must be something that runs foul of the no extra claims provision. It seems to me there's no alternative to that, that if it's a claim based on industrial fairness, "We want this because someone else has got it" or "Despite what our agreement says, we want something else", that that would be an extra claim that would run foul of the no extra claims provision prescribed by the agreement.

PN1248

THE COMMISSIONER: The matter was - there's no subsequent conduct to show that it was accepted. It seems as though it came up pretty quickly after the event, as to the meaning of the clause, didn't it? There wasn't subsequent conduct where it was accepted and then suddenly someone said, "Oh, we want it, we want something new". Is it?

PN1249

MR HEELAN: Well, my submission is certainly that the matter has been pursued by the union as a claim and - - -

PN1250

THE COMMISSIONER: There was an agreement.

PN1251

MR HEELAN: Certainly - - -

PN1252

THE COMMISSIONER: And it says six-monthly.

PN1253

MR HEELAN: Yes.

PN1254

THE COMMISSIONER: The dispute about whether that should be in arrears or in advance happened straight away.

PN1255

MR HEELAN: It was soon after the certification of the agreement. Soon after.

PN1256

THE COMMISSIONER: Soon after, yes.

PN1257

MR HEELAN: I'm not sure how widespread a problem this is. For example, there's no one from the Kwinana Refinery here today.

PN1258

THE COMMISSIONER: I'm just trying to work out how to characterise - I'm just redressing how to characterise this, and isn't it - I'm just trying to say, if it had have been accepted and this dispute hadn't happened, say, for six months or 12 months or something or other, you would have a stronger case to characterise as an extra claim than the thing happening straight away, as to what is the meaning of this thing which is part of our agreement, because it was never accepted. It was disputed straight away.

PN1259

MR HEELAN: Yes, although - - -

PN1260

THE COMMISSIONER: You showed me some minutes there where I think Mr Wood said straight away this will have to go to the Commission and that
was - - -

PN1261

MR HEELAN: Yes, certainly. I don't hide from that at all. That was certainly Mr Wood's position as expressed or as recorded in those minutes, and that was on 7 November.

PN1262

THE COMMISSIONER: The union's claim by the evidence so far is that it was about trying to get a deal and that during that negotiation, there was no discussion as to whether it was in advance or in arrears. So if it had have been a deal done on the clear understanding that it was one way or the other, and then there was a new claim to pay in advance, that would be a stronger position to characterise it as an extra claim, wouldn't it? But there's no evidence here as to the - so far, there's no evidence to the effect that it was accepted or even discussed as a payment in arrears. The evidence of the two witnesses so far I think have said it wasn't raised. "I assumed, I thought, but I wasn't told."

PN1263

MR HEELAN: Yes. The only other issue I'd like to touch on at this time is that the section 99 application filed by the union - - -

PN1264

THE COMMISSIONER: Well, that didn't go anywhere.

PN1265

MR HEELAN: - - - on 22 November, which was the first complaint. At point 3, it certainly conveys to me the impression it's a complaint based on industrial fairness. Simply through the reading, and I'll quote, sir:

PN1266

3. The respondent is paying the incentive payment in arrears after six months, giving the respondent the benefit of the voluntary shifts, but not paying the members and employees for the extra work at the time it is undertaken.

PN1267

I conclude the quote. The application giving rise to these proceedings is in very similar, if not identical, terms in respect of point 3. It just raises to me the - I mean, our submission is very simply if these proceedings are about an interpretation of a provision of a certified agreement, then it proceeds on the basis of the manner in which we have framed our outline of submissions and witness statements, but if the matter is about what's a fair thing and what we want you to do is arbitrate what's a fair thing, that may well be an entirely different matter. I must say, I was concerned at the opening submission this morning put by Mr McLane which I was concerned the union may be suggesting that in these proceedings the Commission will be arbitrating unconstrained, whereas - and on the basis of industrial fairness, where it certainly seems to me that - Mr McLane, if my notes reflect accurately what he said, my notes say that he was asking for a fair and equitable resolution of the dispute after considering the merits of the matter.

PN1268

Now, if that's in relation to an interpretation of what the certified agreement means, well that's one thing, but if it's in relation to the matter generally and based on industrial fairness, that may well be an entirely different matter.

PN1269

THE COMMISSIONER: I thoroughly understand your point. Just one other question I'd like to ask. If it the company's position that the amount should be paid, if one takes a - if the question is, I'm being asked to provide an arbitrated decision on the proper application of the agreement, is it the company's position that that would mean that the amount should be paid in April and in October? Or is it something which might have been discussed in other proceedings in the Commission? Do I make myself clear? I don't wish to refer to what happened in the 1999 proceedings.

PN1270

MR HEELAN: Yes. My understanding is that the company - - -

PN1271

THE COMMISSIONER: Because if it's one way or the other, if it's saying it's paid in arrears, it would seem to me to be saying, well, the first six months should be paid in April and the next six months should be paid in October.

PN1272

MR HEELAN: Yes, yes.

PN1273

THE COMMISSIONER: But if something else was happening, 507s, or whatever it was, the question is, is it the company's position that the proper application of the agreement is that the first one should be paid in April and the next one should be paid in October, or what is it? What is your position?

PN1274

MR HEELAN: Yes. The company's position is that the first entitlement would fall due to a retrospective payment in April, covering the period from April back to October, and the next payment would fall due in October, but on the anniversary date of the agreement and payment of the allowance for the preceding six-monthly period.

PN1275

THE COMMISSIONER: That might be something more, that might have been alluded to by one of the witnesses. If it was under that, by October, 2880 will be paid, not something less than that.

PN1276

MR HEELAN: By October - - -

PN1277

THE COMMISSIONER: By October; in October, employees will have received 2880, not something less than that.

PN1278

MR HEELAN: In October 2007?

PN1279

THE COMMISSIONER: In October 2006.

PN1280

MR HEELAN: Six, I'm sorry. Yes. Yes, that's correct.

PN1281

THE COMMISSIONER: Not something less than that?

PN1282

MR HEELAN: That's correct. The company has, as a good faith gesture, paid a pro rata entitlement up to, I think it is, the start of this year. It was in an attempt to bed down some of the issues around the certified agreement. The witnesses will be far better qualified than I to explain the detail of that. But the company's position is that the first payment, the first entitlement payment, would fall due in April for the preceding six month period and each six months thereafter.

PN1283

THE COMMISSIONER: Yes. Is it your submission that the entitlement is only due on the conditions being met collectively? Or individually? Or shouldn't we go there? Do we need to go there?

PN1284

MR HEELAN: I think we do. I think when we look at the merit, we do need to look at what A7 means and - - -

PN1285

THE COMMISSIONER: Okay. Well, perhaps that will come when you put your - I'll ask you that question later. Perhaps we should go with the witnesses. I have someone sitting in the box here and I don't wish to linger than, but I think if that is relevant, I want to know that in your submission that is relevant, and sort of put Mr McLane on notice of that so I can hear his position, too.

PN1286

MR HEELAN: Sure. Our submission in a nutshell is that A7 means precisely what it says and that there is a - - -

PN1287

THE COMMISSIONER: So if you have seven people and six people do the right thing, with honour, and one doesn't, no one gets it?

PN1288

MR HEELAN: Well, in those circumstances, my submission would be that even if an employee does the wrong thing, so long as the rest of the employees cover it, it doesn't matter from the company's perspective. So long as the URO coverage is provided, collectively, then the requirements are met. Obviously the other requirements of A7, which include the union party complying with the disputes procedure, but so long as collectively the requirement is met - - -

PN1289

THE COMMISSIONER: Everyone's entitled?

PN1290

MR HEELAN: - - - they would be entitled. There may well be individual issues that may need to be resolved, if that became necessary, but in the main, if an employee wasn't delivering, so long as the other employees could deliver and cover that absence, and presumably they would sort out the employee that's not doing the right thing. But from the company's point of view, so long as the coverage is being provided and the other requirements are met, in the company's submission they are pre-conditions to the entitlement. Rule 1 is quite - - -

PN1291

THE COMMISSIONER: Yes. Your submission is there's an eligibility and if those conditions are met, it becomes an entitlement?

PN1292

MR HEELAN: Yes.

PN1293

THE COMMISSIONER: And in respect of the URO part, provided they're covered, that's a matter to be worked out, but it's not voluntary. Is it voluntary or is it not voluntary? From your submissions I couldn't sort of follow that, because I found a reference to voluntary in the agreement.

PN1294

MR HEELAN: There's a mandatory requirement that cover be provided. It must be provided.

PN1295

THE COMMISSIONER: Yes.

PN1296

MR HEELAN: Does that then mean that it is mandatory - - -

PN1297

THE COMMISSIONER:

PN1298

The employees covered by this agreement will provide shift cover as contained in appendix A7 of this agreement.

PN1299

Will provide shift cover. Is that the mandatory requirement?

PN1300

MR HEELAN: I think taken in the context of A7, my response would be yes, sir. For example, rule 1 - - -

PN1301

THE COMMISSIONER: I'm just looking at 4D(7), and I see the word, voluntary, there:

PN1302

To consult to ensure an equitable distribution of voluntary additional hours across the workforce.

PN1303

And it goes on about to reduce.

PN1304

MR HEELAN: Yes.

PN1305

THE COMMISSIONER: So what does voluntary mean? If there's a mandatory requirement, how is it voluntary at the same time? And was that something to do with the two bites of the vote, or something or other? Anyway, I need - - -

PN1306

MR MCLANE: If I could assist? We don't take any issue, sir, that it is a collective requirement upon the union and the group.

PN1307

THE COMMISSIONER: Okay, then. It's a collective requirement to do the cover. Okay. Thank you. That's very helpful, Mr McLane.

PN1308

MR HEELAN: Sir, if I - our submission is that appendix A7, taken in the context of the agreement, requires that all unplanned absences be covered by the work crews and it requires the union's compliance, and the company's compliance, with the disputes procedure.

PN1309

THE COMMISSIONER: Yes. This is the last paragraph before Scope:

PN1310

The essential nature of the WAO -

PN1311

I presume that's what, West Australian Operations, is it?

PN1312

MR HEELAN: Yes, sir.

PN1313

THE COMMISSIONER: Yes:

PN1314

- requires that employees provide shift -

PN1315

Okay, then. Anyway, we have Mr McLean's concession which is helpful. Proceed with the witness. Thank you very much.

<PATRICK ADRIAN WATT, AFFIRMED [3.49PM]
<EXAMINATION-IN-CHIEF BY MR HEELAN

PN1316

MR HEELAN: Thank you, Mr Watt. Could you please state your full name and address for the record?---Patrick Adrian Watt (address supplied).

PN1317

You're employed as a supervisor with Alcoa of Australia Ltd?---I am.

PN1318

Mr Watt, have you prepared a witness statement in relation to these proceedings?
---I have.

PN1319

Have you signed that statement?---Yes, I have.

PN1320

Would this be the document you have signed?---Yes, that's it.

PN1321

Commissioner, the document that Mr Watt has before him is in identical terms to the document in one of the documents we filed, save for the fact that in a couple of places there is reference to something being attached, which was not, and that has been deleted and initialled and then signed. So that's the only difference between the documents.

PN1322

THE COMMISSIONER: I think we might get a copy of this document. If we just pause for a second?

PN1323

MR HEELAN: I do apologise for that, Commissioner.

PN1324

THE COMMISSIONER: I'll mark that. What are we up to, H12.

EXHIBIT #H12 - WITNESS STATEMENT

PN1325

MR HEELAN: I'm not sure whether the submissions were - I'm sorry, sir. As I explained, sir, the only differences between that and the document as filed are the deletion of references to attachment to a few occasions.

PN1326

THE COMMISSIONER: I might have missed it, I'm sorry? Has the witness sworn that this is an accurate record, or you're coming to that?

PN1327

MR HEELAN: The short answer is no, sir. Thank you.

PN1328

Mr Watt, do you swear that the information contained in your witness statement is true to the best of your belief and knowledge?---I do.

**** PATRICK ADRIAN WATT XN MR HEELAN
PN1329

And that is your evidence?---Yes.

PN1330

I just take you to paragraph 15 of your witness statement?---Mm.

PN1331

You refer to Mr Keeley raising the issue of an incentive payment with you. Was that before or after the first agreement being balloted on?---That would have been before the agreement was voted on.

PN1332

The first agreement?---Yes.

PN1333

I just take you to paragraph 16; you refer to a meeting involving Ms Butler and Mr Horne. At that meeting, was a memorandum prepared by Mr Bob Ryan discussed?---The meeting was about the framing of some sort of payment, given what had been raised with me. I'm not sure whether it's - I think subsequently Bob did work on the wording of that.

PN1334

Perhaps if I could just show the witness a document, sir? The document is number 17 from the bundle that we filed on Monday.

PN1335

THE COMMISSIONER: Am I right, this is an internal document?

PN1336

MR HEELAN: It is, sir. Yes.

PN1337

THE COMMISSIONER: Some talking about the hopes and aspirations of the employer at this stage?

PN1338

MR HEELAN: Yes, sir.

PN1339

THE COMMISSIONER: Do we need to mark that document?

PN1340

MR HEELAN: I'm not sure that the witness is going to say whether that was discussed at the moment, sir.

PN1341

Mr Watt, was that memorandum discussed at the meeting?---Yes. Yes, the contents of that were discussed.

PN1342

Was it on the basis of that, that the company formulated a proposal to put to the union?---That's correct.

**** PATRICK ADRIAN WATT XN MR HEELAN
PN1343

Sir, could I ask that that document be marked?

EXHIBIT #H13 - MEMORANDUM PREPARED BY ROBERT RYAN

PN1344

MR HEELAN: Now, in relation to paragraph 20, Mr Watt the time in lieu figures for the preceding year have been higher or lower than the URO requirements under the new agreement?---When you say the preceding year?

PN1345

2004?---2004. We used 2004 as the benchmark when we were discussing this during 2005 so the question was being asked by the workforce what's the expectation that we want them to do for this payment and we went and had a look at the data from 2004 and had a look at the absentee data to try and work out what would be an equitable figure and that's where the four UROs came out of.

PN1346

And so that based on the time in lieu requirements in 2004?---That was actually based on absenteeism, not time actually worked.

PN1347

And would the absenteeism figures for 2004 reflect what the URO requirements would be under the new agreement?---No, the URO requirement is actually less than what the absentee rates are.

PN1348

And why is that?---There are varying ways to cover absenteeism and they're not all done with URO. Some are done with additional resources so if you've got a relief on shift for instance and there's nobody on leave then they cover that absence. You have people that are on utility days that can then - the utility day can then cover that absence. So there's a number of ways that people can cover those absences besides just an unrelieved operator cover.

PN1349

And in paragraph 30 you refer to an email from Mr Rolls, what did those queries convey to you?---There were queries about the working of the incentive payment about whether they worked more. My recollection is whether they worked more than them, what if individuals didn't do it would they still get the incentive if people didn't cover and things like that and I guess what it conveyed to me during that was that clearly you had to do something to actually receive the incentive. The questions were around they would be at risk if these things weren't done.

PN1350

Would it have been within your authority to agree to pay the incentive payment in advance?---No. No, I've got no authority to pay anything in advance because there are very few things that are paid in advance and the only ones I know of are things like transition payments where you're trying to get from one situation to another and I think evidence earlier has been given about the 92 transition for the overtime.

**** PATRICK ADRIAN WATT XN MR HEELAN
PN1351

So who in the company could make that sort of decision?---That decision has to go to the highest level in WA so it would be the - I think it's the director of WA operations would have to make that decision.

PN1352

Was that person involved in your negotiations?---No.

PN1353

The Commissioner asked me some question a minute before we got to you in relation to whether or not there was a mandatory requirement for URO cover, is there?---I think it was sort of summed up that it's a collective agreement. This agreement applies to all of the workforce. From the company's perspective we just require the coverage. Where we talk about voluntary, and it always has been voluntary for the individual so no individual is compelled to come to work when asked, but the group collectively has in the past always provided that coverage. So the individual for whatever reason has the opportunity to say okay, come into tonight or tomorrow or whenever the requirement is because I've got such and such on. History says that somebody else then comes and covers that so collectively the group has the obligation to cover, individually it's a voluntary arrangement and I think Mr Rolls gave evidence that the workforce generally sorts those issues out.

PN1354

From your perspective does the cover need to be provided before employees are entitled to the incentive payment?---Certainly.

PN1355

Has the cover been delivered, has URO cover been delivered at each of the refineries since the agreement was certified?---No, there's been absenteeism at all three refineries. It's been covered by varying means fully at Kwinana and Wagerup and at Pinjarra it hasn't been fully covered.

PN1356

So as far as you're concerned would the employees at Kwinana and Wagerup be entitled to receipt of the incentive payment?---They are, yes.

PN1357

Would the employees at Pinjarra be entitled to receipt of the incentive payment since the start of the agreement?---The strict interpretation of the agreement, no, they wouldn't.

PN1358

Will they be paid?---I have initiated a pro rata payment I guess in good faith given that there might be some confusion on around how it works and I'm hoping that that, you know, shows a big of good faith to, you know, get it happening as it should.

**** PATRICK ADRIAN WATT XN MR HEELAN
PN1359

Mr Watt, at paragraph 36 you have included a table, could you please explain that for the benefit of the Commission?---This is the 2004 data. That's taken from each of the sites to show how many shifts each site had for absenteeism in that year. This is the total absenteeism across the short term absenteeism across each of the sites. As you can see, Kwinana had the highest, there was 102 shifts. At Pinjarra there was 59 and at Wagerup there were 20 shifts. What that then works out to and given that we were using this is a benchmark because there is a clause in appendix A7 that talks about keeping absenteeism under control, that's where we sort of got the benchmark of four unrelieved operator covers which would more than adequately cover the highest absenteeism at the site, which was obviously Kwinana. What that actually means in terms of shifts per person and the data suggests that at Kwinana people only did point 22 of a shift so the majority of those shifts were covered by other resources.

PN1360

THE COMMISSIONER: Or utility days?---Or utility days, yes, and the same at Pinjarra at Wagerup. So all of them are actually covered under one, an average of one unrelieved operator cover per operator.

PN1361

MR HEELAN: Mr Watt, could you explain for the benefit of the Commission what a utility day is and how it works?---Okay. The normal 12 hour shift roster has people on a rotating shift basis. That doesn't quite go into 36 given the amount of 12 hour shifts in the week or in the cycle so a utility day is used to make up the hours for the 36 hour week. It's possible that you work out a 32 hour a week or something if you didn't have utility days. So utility days are days where you're not actually required on the normal job and they're used for training or they're used for people to do re-roster because they've done other coverage or stuff like that. So that's the meaning of a utility day.

PN1362

Thank you. Mr Watt, can you explain the - - -

PN1363

THE COMMISSIONER: Just on that last one, could I just ask a question, if I could interrupt?

PN1364

MR HEELAN: Certainly.

PN1365

THE COMMISSIONER: In respect of that table was the intention for 2005 post agreement or for the post agreement that it be closer to the 0.22 or closer to 3.19 or what? That might be coming over the page?---There is another table that I've worked out on the first three months of the agreement that tends to reflect those figures.

**** PATRICK ADRIAN WATT XN MR HEELAN
PN1366

Okay. I withdraw that question, thank you.

PN1367

MR HEELAN: Thank you, sir.

PN1368

At paragraph 41 you have another table, could you please explain that for the benefit of the Commission, Mr Watt?---Once again the same short term data from the first three months of the agreement which was 24 October through until
24 January. These records are from payroll figures from log entries and from URO cover spreadsheet that we run at Pinjarra as well and what that shows is that in that three months there's been 24 absenteeisms at Kwinana, Pinjarra there's been 35 and at Wagerup there's been 14. That's a potential maximum coverage of point 92, 1.35 and point 7. Now, I use potential because that's if all of those absences were covered with URO, that's what the figures would be. The actual coverage as you see in the next column, Kwinana haven't been required to do any. They currently have additional people available, I guess we call them additional resources, available to do some of that coverage given there's some redundancies coming up later in the year. They may have taken some people off shift who may have been able to cover those so that's why that figure sort of reflects probably not an ongoing 12 monthly type figure. Further down the column with Pinjarra, point 46 and at Wagerup point 5. Now, if we then extrapolate that out to a yearly basis for Kwinana I've just used the mean average of the other two sites to try and actually give it a figure, so that's 1.92. At Pinjarra it's been 1.84 shifts and at Wagerup it is two shifts if absenteeism continued the way that it's going.

PN1369

Is that two shifts per employee?---Per employee.

PN1370

Per year?---Mm.

PN1371

Mr Watt, did you prepare a detailed analysis of that data?---I have. I've got spreadsheet data for both 2004, the first three months of the agreement and I've also got a list of the people that have actually provided coverage for the first three months.

PN1372

Sir, could I ask that the witness be shown another document? It's document 1A, it's the one immediately behind 1 in our bundle with a purple tag on it. It's at folder A3 - - -

**** PATRICK ADRIAN WATT XN MR HEELAN
PN1373

THE COMMISSIONER: I'm just getting confused with my numbers. I think the last one, the draft statement should have been H14, shouldn't it?

EXHIBIT #H14 OUTLINE OF SUBMISSIONS.
EXHIBIT #H15 STATEMENT OF MR WATT
EXHIBIT #H16 POWERHOUSE ABSENTEE SPREADSHEET 24/10/2005 TO 24/1/2006

PN1374

MR HEELAN: Thank you, sir.

PN1375

THE COMMISSIONER: I'm sorry about that.

PN1376

MR HEELAN: Mr Watt, could you please explain your spreadsheet to us?
---Okay. The data was got from the payroll system where each row is complete there's a couple of lines in there that I've added in from other entries such as log entries. For instance there's a Mark Denning that's been off since December and only has just returned to work so at the time that I ran this data his absent data hadn't actually been put in because he hadn't been back to submit his form so that's why that looks a little different. Basically it's the numbers that I've compiled in that spreadsheet to show, you know, how the numbers came out. It dictates the people that have been absent. I've put down in that coverage column the people that have covered those absences. I've put down where there's been no cover required.

PN1377

THE COMMISSIONER: Sorry, the first column is that employee number and surname, that's the person who's been absent?---Mm.

PN1378

And where's the name of the person who's doing the cover?---In the coverage column which is the coloured one right over on the right hand side.

PN1379

Okay, right?---All the left hand data is directly out of the payroll system.

PN1380

I see?---So in that coverage column there's the no coverage required which I haven't actually put it in for Kwinana because none was required for the whole lot so it seemed superfluous to put all that in and there's no cover provided, one that is in for Pinjarra which is the only place that that's occurred.

PN1381

So the NCP?---That's the no cover provided.

PN1382

Is the no coverage. So that shift is one down, is it?---They run a person down when that occurs, when nobody comes in, that's correct.

**** PATRICK ADRIAN WATT XN MR HEELAN
PN1383

MR HEELAN: Thank you, sir. About 45 minutes after the deadline imposed - I'm sorry, have you finished questions in relation to this?

PN1384

THE COMMISSIONER: Yes.

PN1385

MR HEELAN: Mr Watt, have you finished your explanation?---I believe so.

PN1386

About 45 minutes after the deadline for submission of - - -

PN1387

THE COMMISSIONER: Mr Heelan, this is in support of something, is it? This is in support of - - -

PN1388

MR HEELAN: An email sent to your associate.

PN1389

THE COMMISSIONER: This exhibit H16.

PN1390

MR HEELAN: Sorry, yes.

PN1391

THE COMMISSIONER: The purpose of that, is that in support of what, paragraph - - -

PN1392

MR HEELAN: 41, sir.

PN1393

THE COMMISSIONER: Yes.

PN1394

MR HEELAN: It's an expansion of the data referred to in shorthand manner in paragraph 41.

PN1395

THE COMMISSIONER: Yes.

PN1396

MR HEELAN: 52 minutes after the deadline for filing of documentation on Monday I sent to your associate a one page schedule that Mr Watt had prepared that didn't come through to me until after the deadline, noting I sent a copy of that to - I have copies of it all here, sir. I sent a copy of that to Bird & Co saying that it seemed to me that no-one suffered a prejudice as a result. Would it be possible for me to rely on that information? That is simply information of the individuals that have provided URO coverage since the agreement has been certified.

**** PATRICK ADRIAN WATT XN MR HEELAN

EXHIBIT #H17 SPREADSHEET OF COVERAGE FOR LAST THREE MONTHS

PN1397

MR HEELAN: H17?

PN1398

THE COMMISSIONER: H17.

PN1399

MR HEELAN: Thank you, sir.

PN1400

Mr Watt, did you prepare the schedule you have in front of you?---I did.

PN1401

And can you please explain it to the Commission?---I've taken that from the other sources and I guess I just tried to put it in a format that showed what particular individuals have done as far as the coverage is concerned for the three months. That's taken from payroll records, from log entries and from spreadsheet data maintained at Pinjarra.

PN1402

And so this schedule covers the totality of the first three months of the certified agreement?---That's correct and the names of these individuals will be on that spreadsheet.

PN1403

Thank you, Mr Watt. I have nothing further, sir.

PN1404

THE COMMISSIONER: Just on that, Mr Mutton has done two days and
Mr Elliott has done two days, is that the idea?---That's correct.

PN1405

Sorry.

PN1406

MR HEELAN: Thank you.

PN1407

THE COMMISSIONER: Yes, Mr McLane.

<CROSS-EXAMINATION BY MR MCLANE [4.20PM]

PN1408

MR MCLANE: Thank you, sir.

PN1409

Mr Watt, you were present through the evidence of the two union's witnesses and heard evidence in relation to what's been termed a paid day in lieu or a day in lieu coming into effect after the APP in 92. Do you concede that that is what happened, that employees in the power station have been accruing days in lieu?
---What actually happened in the initial days, I think as we've heard previous evidence, there were no time in lieu. People did the overtime and they got nothing for it.

**** PATRICK ADRIAN WATT XXN MR MCLANE
PN1410

Yes?---Some years after that and it happened at different timings across different sites, there started to be what was called a re-roster, which is different to time in lieu. Re-roster is basically where you can re-roster your utility day to cover a different shift and that happens for a number of reasons of which could be URO, could be additional workload, you know, those type of things. So re-rosters are a fairly common occurrence and I guess we started to use that for URO coverage.

PN1411

Okay. But re-rosters which might be a clearer description, and day in lieu have been used in the same context, haven't they?---It wasn't day in lieu initially, it was re-roster.

PN1412

Okay?---Day in lieu is something that's been more recent and I think 2003 was when we addressed it as a WA group because it was happening, I think we heard before, a bit of a deal if you like and I was instrumental in trying to get some resolution and get agreement across the sites because from where I was sitting with responsibilities across the sites I was hearing that we were managing that differently across the sites and so we needed to get some consistency so we drew up a consistent agreement that then spelt out that it was time in lieu for those.

PN1413

Thank you. Now, when the URO concept was advanced by the union in the negotiations, I've really jumped you ahead now, are you aware of the union putting forward options in relation to that?---Yes, as a counter claim to the company's proposal, yes.

PN1414

Thank you, yes. Now, is it fair to say that the operators, and I think you've pretty well conceded in your evidence in your statement that the operators basically from 92 onwards ran the URO?---That's correct.

PN1415

Thank you. Now, I just want to come to the $2880 and the evidence has been that it was management that put that figure forward, am I correct?---That's correct.

PN1416

Sorry, I should rephrase that a bit, not correct that that's the evidence, that's correct that management put that figure forward?---They did.

PN1417

And am I also correct in saying that there was a bit of argy bargy where the CFMEU tried to increase that amount?---I believe so.

PN1418

Thank you. And some time after it first being proposed agreement was actually reached on the 2880?---Mm.

**** PATRICK ADRIAN WATT XXN MR MCLANE
PN1419

Sorry, I just didn't pick that up?---Yes, agreement was reached.

PN1420

Thank you. So that there was a meeting at the mines eventually on that figure and an agreement done?---That's right.

PN1421

Did you or anybody else from the company spell out during those negotiations how you intended to pay that amount of 2880?---What we spelt out was the duration of the payments so that they would be in - if it was an annual payment then it would be paid in two lots, six monthly.

PN1422

Now, when did you first put forward, because you've heard the evidence - sorry, let me come at that again. The evidence has been from us that the instalments, certainly the issue of instalments certainly came some time well after the 2880 being advanced by the company, is that something you agree with?---Sorry, could you just repeat that, I must have missed something there?

PN1423

Yes, I'm sorry. First of all came 2880 from the company?---The proposal, yes.

PN1424

Somewhere after that proposition being put forward, not the same day, some time after, the two instalments were advanced?---I guess once we got to the detail, got that that was to be accepted then we got to the detail of when it would be paid.

PN1425

And the evidence of Mr Keeley was that he first became aware of an instalment proposal during some of the initial drafts. Would you concede that?---I'm not sure.

PN1426

Is it likely?---I'm not sure when Mr Keeley became aware of it.

PN1427

But you don't recall putting it to Mr Keeley or anyone else prior to the time of starting to put words to paper?---I don't know whether I would have put it to
Mr Keeley, no.

PN1428

Did you put it to anybody from our side I mean?---Certainly. Look, Mr Keeley was the deputy convener at Pinjarra which is one cog in the three side agreement.

PN1429

Yes?---Primarily we were dealing through Mr Gary Wood who was dealing with then the site reps, so I would expect that the proposal would have been put to Gary Wood.

**** PATRICK ADRIAN WATT XXN MR MCLANE
PN1430

Well, are you aware of that happening?---I must admit that I didn't get to the detail of the exchange of the letters and things like that. Mr Bob Ryan was taking care of the administration side of things.

PN1431

So you're unaware?---I'm unaware of exactly how that was put.

PN1432

Yes. I think the evidence was that you were involved in explaining the proposed certified agreement to the workforce?---That's correct.

PN1433

Did you ever explain at that stage the concept of the two instalments in arrears?
---I didn't explain the concept of the instalments at all to the workforce. I went along on the morning of their initial vote and answered some questions and was prepared to answer questions on the 2880. At that stage the workforce had rejected the 2880 and so unless I was requested there was nothing for me to present.

PN1434

No, that's fine, thank you.

PN1435

THE COMMISSIONER: That's the initial vote, that's not the second vote?
---That's correct.

PN1436

MR MCLANE: Sorry.

PN1437

THE COMMISSIONER: That's what the question was about, wasn't it?

PN1438

MR MCLANE: Yes, thank you, sir.

PN1439

Did you attend the second vote and explain anything there?---I wasn't asked to attend the second vote.

PN1440

Just to go to your statement, if I could just take you - Mr Heelan took you to paragraph 30, if you have exhibit 15?---Paragraph which?

PN1441

30?---30, yes.

PN1442

Mr Heelan asked you at that point about the payment maybe being at risk if the obligation wasn't lived up to. My question to you is if the obligation - sorry, if the instalment was being paid in arrears why would there be any risk to the company?---If it was paid in arrears I don't think Mr Rolls question was to do with risk to the company. It was risk to them receiving the incentive. That's as I understand paragraph 30 relates to.

**** PATRICK ADRIAN WATT XXN MR MCLANE
PN1443

Okay. Now, a number of times through the document you refer to the company, by that do you mean Alcoa World Alumina or who is the company?---Well, I guess I'm representing the company. Myself and Bob Ryan were at the forefront of the negotiations.

PN1444

No, who do you mean when you say the company, what's the name of the entity?
---Well, I mean us and the people we get direction from.

PN1445

And that's?---That's Bob Ryan and myself and the people we get direction - - -

PN1446

Yes, but the name of the company, what is the name of it?---Well, it's Alcoa, obviously.

PN1447

Thank you?---Sorry.

PN1448

If I take you to 40 and 45 of your statement, I put it to you that you're obviously concerned and the company's concerned about the possibilities of flow on to other unions if the URO is paid in advance, do I understand that correctly?---Well, we just don't pay incentives in advance.

PN1449

Well, that's not the question. The question is from that are you saying that you're concerned about flow ons?---Well, I would think that if we got into a situation where we had to pay in advance then there's a whole raft of incentives that the company pays to various work groups that would be under threat.

PN1450

You say at 44:

PN1451

If the incentive payment -

PN1452

Which I assume you mean the URO, do you?---That's the incentive that's under discussion, yes.

PN1453

Okay, so we're talking the URO payment?---Yes.

PN1454

Where you say incentive payment there?---Yes.

PN1455

was paid in advance, this would create a precedent whereby other unions would seek a similar payment.

**** PATRICK ADRIAN WATT XXN MR MCLANE
PN1456

Is that your concern?---That's possible.

PN1457

Are you really serious when you say that that would cause a cash flow problem for the company, the company being World Alumina, Alcoa World Alumina?
---We've got a lot of employees in WA.

PN1458

I wont go ..... but you're really - - -?---I guess in my world of Alcoa World Alumna, yes.

PN1459

So you mean within your budget?---Well, within our area which is WA I guess.

PN1460

Okay. So you're not seriously suggesting that the company would have a cash flow problem?---Well, it would cause some issues within our area.

PN1461

Yes, but bear in mind a sworn statement?---Yes, well - - -

PN1462

I'm just giving you an opportunity to - - -?---That's what I'm talking about. When I'm talking about that I'm talking about Alcoa World Alumina WA operations.

PN1463

All right. I have nothing further in cross-examination, sir.

PN1464

THE COMMISSIONER: I wonder if you could help me in respect of this,
Mr Watt, just bear with me. The difference between re-rostering and time in lieu. You obviously see a clear difference and I'm failing to appreciate that, can you give me a bit of explanation? I understand there's a roster and people are re-rostered so that they will have to come in on the day that they might have been off and time in lieu means the person - what does it mean, it means if they come in on the day that they would have been off they're then given another day off?
---There's some guidelines, some company guidelines around re-roster and they generally need to be planned events, so re-rostering events are coming up and we can see that we're going to need to get some additional people on there so instead of working this shift we want you to work this shifts, so that's essentially what's a re-roster.

PN1465

I mean in these unplanned absences for sick leave and so forth?---I guess that's why we've changed from the re-roster situation because where you could re-roster we would allow people to re-roster, but if it was extremely short term it didn't fall under the re-roster guidelines which some people saw could put them at a disadvantage and that's why we addressed that in 2003 by getting agreement across through the three refineries on how we would manage it and we would manage it as time in lieu. So regardless of the notification, all coverage was to be treated the same.

**** PATRICK ADRIAN WATT XXN MR MCLANE
PN1466

Okay. After this 2003, if I'm a person and one of the employees and I'm called in to relieve Bloggs who's been called away, I would have worked on that day and then I would have been able to nominate or be allocated another day off, rather than having that day off I would have another day off?---That's correct. One thing I might have missed from the time in lieu was you're actually supposed to nominate which shift it was that was going to be the in lieu shift, so they were some fairly tight constraints. So in other words, I'm going to work this Tuesday and I'm not going to be working next Thursday, so that's the constraints that were around the re-roster guidelines.

PN1467

In the previous arrangement, prior to the time in lieu coming in, if I was called in to work on my day off and I was called into work because someone was work, I was re-rostered to allow that to happen even though I couldn't have had the notice, I mean there wouldn't - - - ?---Not always.

PN1468

Not always?---No. I think actually the Kwinana site might have been the last one on that and quite recently really. There was a view - I heard that there was a view there from their rep that they favoured not giving people time off for it because it kept things in check.

PN1469

Okay. In respect of your statement, in paragraph 5 these are the explanations. This is part of making the employees aware of - it might haven't been on the day of the vote but it was in respect of the lead up to making people informed of what was in it, the first one - or the second one I presume, the second one. You presented information on the proposed changes required to mass meetings, was this ever mentioned as to whether the six months was in advance or in arrears?
---No, it wasn't. For me it didn't appear to be an issue so I didn't address it and I was never asked the question.

PN1470

Okay. In paragraph 24 where you say:

PN1471

This payment was paid quarterly in arrears.

PN1472

Are we talking about A7 or A9?---That's A9, Powerhouse incentive.

PN1473

So A9 is paid quarterly in arrears, that's what you're saying?---That's correct.

PN1474

Then in paragraph 25 you say, you've qualified by saying during my presence, were you present for the whole of the mass meeting?---The mass meeting I'm speaking about is where I was asked to go along and present some information.

**** PATRICK ADRIAN WATT XXN MR MCLANE
PN1475

That was the first one?---That's correct and at that stage the union had rejected the 2880 offer. It was still on the table so to speak but at the time I addressed them I talked about, I think a bit more about the power incentive and how that would work and about some issues at Pinjarra to do with some transmissions or something at Pinjarra as I recall and I was prepared to talk about the 2880 if it was wanted to be discussed but I wasn't sure that people were going to want it.

PN1476

And paragraph 27 is my last question, this at risk business and I know you're not a lawyer and so forth but I'm just trying to follow your thinking here, if the payment was made in arrears as you say, that would be sort of risk, the payment would be at risk because collectively the employees would have to make arrangements for the UFOs to be covered?---UROs.

PN1477

UROs, yes. But if you took the union's perspective and this money was paid up front wouldn't you still be at risk because if they were paid up front and if they didn't, if the UROs weren't covered, being extra careful, wouldn't it mean that they wouldn't get the next - wouldn't it still mean they wouldn't get the next lot of money?---The next lot would effectively cover the next six months, not the previous six months if that's the way it was done.

PN1478

Yes, I see. Okay. Anything further?

PN1479

MR HEELAN: Nothing from me, sir.

PN1480

THE COMMISSIONER: Thank you. The witness is excused, thank you very much.

<THE WITNESS WITHDREW [4.40PM]

PN1481

THE COMMISSIONER: Yes, Mr Heelan.

PN1482

MR HEELAN: Sir, I now call Ms Melina Mary Quinlan.

<MELINA MARY QUINLAN, SWORN [4.40PM]
<EXAMINATION-IN-CHIEF BY MR HEELAN

PN1483

MR HEELAN: Sir, Ms Quinlan has signed a witness statement. The statement is in identical to the one included at number 2 I think it is of our bundle.

PN1484

THE COMMISSIONER: I have the copy of that document which is tab 2, statement of Melina Mary Quinlan.

PN1485

MR HEELAN: Yes, sir, and I simply have the signed version here if I could make that available to your associate.

PN1486

THE COMMISSIONER: Thank you.

EXHIBIT #H18 STATEMENT OF MS QUINLAN

PN1487

MR HEELAN: Thank you, sir.

PN1488

Ms Quinlan, you have before you a statement you have signed?---Yes.

PN1489

Do you swear that the contents of that statement are true to the best of your knowledge and belief?---Yes, I do.

PN1490

And that is your evidence?---Yes.

PN1491

You're employed by Alcoa and currently located at the Kwinana refinery?---That's correct.

PN1492

Sir, with Ms Quinlan and also with Mr Ryan following I was proposing to actually get through a number of documents. Would it be more expedient if my file was given to the witness and I identify the documents I want them to look and then ask that they be marked?

PN1493

THE COMMISSIONER: I think that's probably fine.

PN1494

MR HEELAN: Ms Quinlan, at paragraph 2 of your statement you refer to the CEPU agreement?---Yes.

PN1495

Could I ask that you turn to document number 44. Document 44?---Yes.

PN1496

Is that the agreement to which you're referring in paragraph 2 of your statement?
---Yes, that's correct.

**** MELINA MARY QUINLAN XN MR HEELAN
PN1497

Sir, could I ask that that be marked, please?

EXHIBIT #H19 STATEMENT OF MS QUINLAN

PN1498

MR HEELAN: Thank you, sir.

PN1499

And in paragraph 5 of your statement you refer to the AWA WA Operations (Mechanical Trades) Agreement 2005. Firstly, is AWA a shorthand reference to something else?---Alcoa World Alumina.

PN1500

I would ask that you turn to document number 43, please, Ms Quinlan. Is that the document you're referring to in paragraph 5 of your statement?---Yes, that's correct.

PN1501

Sir, could I ask that that be marked, please?

EXHIBIT #H20 ALCOA WORLD ALUMINA AUSTRALIA, WA OPERATIONS (MECHANICAL TRADES) AGREEMENT 2005

PN1502

MR HEELAN: Thank you, sir.

PN1503

At the bottom of paragraph 5 you refer to a meeting from Robert Ryan dated
25 July 2005, can I ask you to turn to document number 17 in the first volume. It will be exhibit H13, sir, if I could ask that the witness be shown that, H13.

PN1504

THE COMMISSIONER: The previous one, yes.

PN1505

MR HEELAN: That's a memorandum to Mr Ryan.

PN1506

THE COMMISSIONER: Which paragraph are you on, Mr Heelan?

PN1507

MR HEELAN: The bottom of paragraph 5, sir.

PN1508

THE COMMISSIONER: 5, okay.

PN1509

MR HEELAN: Right at the end of paragraph 5.

PN1510

Is that the memorandum to which you were referring at the bottom of paragraph 5, Ms Quinlan?---Yes, that's correct.

PN1511

Can I ask you to paragraph 9, you refer to an email you sent to Mr Gary Wood on 5 August 2005. I ask that you turn to document number 12, is that the email to which you're referring?---Yes, that's correct.

**** MELINA MARY QUINLAN XN MR HEELAN
PN1512

I ask that that be marked, please, sir.

EXHIBIT #H21 EMAIL TO MR WOOD FROM MS QUINLAN RE: APPENDIX 7 OF AGREEMENT DATED 05/08/20005

PN1513

MR HEELAN: Thank you, sir.

PN1514

In paragraph 12 you refer to some correspondence to Mr Gary Wood on Monday, 8 August 2005. Can I ask that you turn to document number 26, is that the document to which you are referring at the top of paragraph 12?---Yes, that's correct.

PN1515

I would ask that be marked, please, sir.

EXHIBIT #H22 EMAIL TO MR WOOD FROM MS QUINLAN RE APPENDIX 7 OF AGREEMENT WITH PROPOSED CHANGES, DATED 08/08/2006

PN1516

MR HEELAN: Ms Quinlan, at the end of paragraph 12 you refer to a response from a Charlene Coleman, I ask that you turn to - - -

PN1517

THE COMMISSIONER: Just a moment. Yes, keep going.

PN1518

MR HEELAN: I do apologise for doing it this way, sir. Ordinarily we would try and attach them but time passed us by.

PN1519

THE COMMISSIONER: Okay, yes.

PN1520

MR HEELAN: Could I ask you to document 25, is that the correspondence you're referring to at the end of paragraph 12?---Yes, that's correct.

PN1521

Can I ask that that be marked, please, sir.

PN1522

THE COMMISSIONER: This says:

PN1523

Dear Melina, okay to send out, regards, Gary.

PN1524

Is this the one?

**** MELINA MARY QUINLAN XN MR HEELAN
PN1525

MR HEELAN: Yes, it is, from Charlene Coleman at the CFMEU office, sir.

EXHIBIT #H23 EMAIL TO MS QUINLAN FROM MR WOOD, DATED 08/08/2005

PN1526

MR HEELAN: In paragraph 13 you refer to some correspondence from Kay Butler which you emailed to Gary Wood on 10 August 2005. I would ask that you turn to document number 20. Is the first page of document the email you sent to Mr Wood and in the following two pages is that the letter from Ms Butler?
---Yes, that is correct.

PN1527

Sir, I would ask that that document be marked.

EXHIBIT #H24 EMAIL TO MR WOOD FROM MS QUINLAN, DATED 09/08/2006 WITH ATTACHMENT LETTER FROM
MS BUTLER

PN1528

MR HEELAN: Thank you, sir.

PN1529

In paragraph 14 you refer to a notification of the dispute was served on the company. I would ask that you turn to document 23, is that the notification you were referring to?---I can't actually - I can't actually state categorically. I know that the notification came through and I looked at it briefly but I know that a couple came through and I wasn't sure which one it was. I just know that we were notified there was a dispute in relation to this issue.

PN1530

Was it the first notification?---I can't actually say if this was the first notification I go.

PN1531

That's fine, Ms Quinlan. In paragraph 16 you refer to a building technicians agreement. I would ask that you turn to document number 18. Is document 18 an email in which you send a copy of the building technicians agreement plus application for certification to Mr Wood on 14 December?---Yes, that's correct.

PN1532

And that's the documentation you refer to in paragraph 16 of your statement?
---Yes.

EXHIBIT #H25 EMAIL TO MR WOOD FROM MS QUINLAN WITH ATTACHMENT ALCOA WORLD ALUMINA AUSTRALIA, WA OPERATIONS (BUILDING TECHNICIANS) AGREEMENT 2005

PN1533

MR HEELAN: Thank you, sir.

**** MELINA MARY QUINLAN XN MR HEELAN
PN1534

Ms Quinlan, how are allowances and incentive - I withdraw that. How are allowances paid under the mechanical trades agreement?---Specifically the contractor flexibility incentive payment is paid six months in arrears from the date of certification from the agreement so it's paid on a six monthly basis in compliance with the contractor flexibility provisions being met for the six month period.

PN1535

And what's the value of that incentive payment?---Essentially the mechanical trades agreement introduce a new arrangement whereby the company can provide work to employees and failing employees being able to provide the labour in relation to that extra work the company can utilise contractors. So essentially this payment is to ensure that that process is adhered to and any disputes that arise in relation to use the contractors it follows the DSP and if it doesn't then the incentive payment is in jeopardy.

PN1536

And what's the incentive payment worth to employees?---At the time of certification it was 2250 but it's been indexed since 1 January so I don't know, by 2 per cent.

PN1537

At the time of certification it was $2250 per year?---Yes.

PN1538

Is there a similar allowance under any other agreements?---Yes, there is an incentive provision under the CEPU agreement in almost identical terms.

PN1539

And how is that paid?---On the same basis, it's monthly in arrears.

PN1540

I'm sorry, I cut you off, are there incentive payments in any other agreements?
---Yes, there's the URO dispute resolution incentive payment under the carpenters agreement that's before the Commission that's yet to be certified and there is also an incentive payment and a URO payment under the AWU WA Operations Agreement and there is also an incentive under the Pinjarra AWU Agreement.

PN1541

And under any of those agreements is the incentive payment paid in advance?
---No.

PN1542

Is it only paid in arrears?---Yes.

PN1543

Is it only paid six monthly in arrears?---Yes.

**** MELINA MARY QUINLAN XN MR HEELAN
PN1544

Would it be within your authorisation to reach agreement with the union to pay an incentive payment in advance?---Absolutely not. Obviously as we've already canvassed already today, this incentive payment concept started with the mechanical trades agreement and that was subject to significant negotiations between the senior members of the company which included the vice president, refinery managers and the HR manager, WA operations HR manager, and so significant negotiations went into determining the terms of that payment. Any deviation to that kind of arrangement would have to go back to the same group for authorisation.

PN1545

So it wouldn't be up to a line manager?---No, no-one has. No-one has authorised those payments other than they call it the WA lead team which includes those people.

PN1546

Yes, thank you, Ms Quinlan, I have nothing further.

PN1547

THE COMMISSIONER: Yes, Mr McLane.

<CROSS-EXAMINATION BY MR MCLANE [4.57PM]

PN1548

MR MCLANE: Thank you, sir, just fairly briefly.

PN1549

Ms Quinlan, were you involved directly in the negotiations?---For what?

PN1550

For the new certified agreement?---For the Powerhouse?

PN1551

Yes?---No.

PN1552

You have just spoken about incentive payments and I think you were present when evidence was given from our side to the effect that there is no interconnection or relationship between the URO, the retention incentive or the wheeling of power, do you say that they're connected?---As identified, I wasn't present at the negotiations when this issue originally came up. I can only say that when I came in to dealing with these issues which was about the time of the memo written by Robert Ryan - - -

PN1553

Just let me stop you, the question is do you say that those three allowances or payments are interconnected or are they stand alone separate creatures or entities in line with our evidence?---If you're talking specifically about the Powerhouse?

**** MELINA MARY QUINLAN XXN MR MCLANE
PN1554

Yes, the three payments. Well, it can't be specific Powerhouse?---Well, I'm thinking in terms of like other incentive payments because some of the others are interconnected.

PN1555

I'm talking about three payments, the URO?---Yes.

PN1556

The retention, as it applies in the trades?---Right.

PN1557

Certified agreements and then wheeling of power as it applies in the Powerhouses?---Essentially I do consider that the retention and the URO is connected because at the time the discussions were had with the senior members of the management group that was discussed in relation to the framing of the two criteria that had to be met in terms of the DSP had to be complied with and the URO had to be provided. So that was the concept behind the actual structure of the clause.

PN1558

Are they linked anywhere in the documentation?---In the actual A7 itself.

PN1559

Where are they linked in A7?---In terms of the eligibility criteria there's two components.

PN1560

Between which of the three?---Between the incentive payment which is dispute resolution essentially and - - -

PN1561

When you say the incentive payment what do you mean, the retention payment, there's three I've identified, the retention, the URO and the wheeling of power, so your evidence is that they're three totally separate creatures not interlinked in any way, with no mention, but your evidence seems to be they're linked and that's the first we've heard of that. Which is it, are they linked or are they separate?---Well, essentially I consider that they're linked.

PN1562

Well, how are they linked?---I suppose because - - -

PN1563

THE COMMISSIONER: Perhaps we could take them one at a time.

PN1564

MR MCLANE: Yes.

PN1565

THE COMMISSIONER: We could say how is the A9 linked to the A7 and the other one is how is the mechanical agreement, the AWU agreement retention payment linked to A7?---I suppose essentially my reason for saying that is based on the construction of the clause in that originally - - -

**** MELINA MARY QUINLAN XXN MR MCLANE
PN1566

Which one are you talking about, the A9 or the - - -?---The A7 payment. The A7 payment.

PN1567

So the A7 payment the link with which, you're going to talk about how A7 is linked to both firstly, the A9 and secondly, the clause 8(f) of the AMWU agreement, so if you just take one at a time?---Okay.

PN1568

What's the link? I think Mr McLane is saying, well, what's the link so let's go through them one at a time, do the A7 and A9 link first?---No, no, I don't think there's an A7/A9 link.

PN1569

MR MCLANE: Okay. So where is - I just wonder if it would help if you had the actual agreement. I know that the trades agreement is in the bundle that you have but I don't - it was really the power station, A7, that I would like the witness to see.

PN1570

THE COMMISSIONER: Have you got a copy there?

PN1571

MR MCLANE: No, I don't think that's in the bundle, is it? So Ms Quinlan, if I could just take you to A7 which on my document and I will just check they're the same as at the top of page 30?---The security of the Powerhouse?

PN1572

No, I just wonder if we've got different documents.

PN1573

THE COMMISSIONER: Sorry.

PN1574

MR MCLANE: I've gone headed - it's actually the one from the Commission.

PN1575

THE COMMISSIONER: Okay.

PN1576

MR MCLANE: AG843546. I suppose as long as we're talking the same wording. I suppose - - -

PN1577

THE COMMISSIONER: It's just a different page because it's been printed - - -

PN1578

MR MCLANE: Okay. I will just ask you, Ms Quinlan if you would have a look at A7 for me, of the Powerhouse agreement?---Mm.

PN1579

And just have a look at that because to me it seems to stand alone and our evidence is it stands alone, but I think you're saying that it's connected to the retention?---Yes, that's correct in terms of part 1 of the eligibility, all parties complying with clause 17 is essentially a variation on the compliance for the contractor flexibility clause in the mechanical trades agreement.

**** MELINA MARY QUINLAN XXN MR MCLANE
PN1580

Let me just probably challenge you on that. It says:

PN1581

All parties complying with clause 17 of the agreement, resolution of issues, grievance, industrial relations.

PN1582

?---Yes.

PN1583

But that might be the same in the other agreement, same wording, but where are the two linked in any way?---I'm not understanding the question.

PN1584

Well, when you say they're not linked in any way, you say they're linked?---Okay.

PN1585

I'm saying how are they linked? What wording in clause 7 links it?---I suppose I'm saying that they're linked in terms of the criteria for the payment because when this - - -

PN1586

Where does it say?---Because it's their criteria. You have to comply with 1 and 2.

PN1587

They have to comply in this, they have to comply with the dispute settlement procedure?---Mm.

PN1588

And all unplanned absences as required being met?---Yes.

PN1589

How does that in any way link it to the trades?---Because essentially the - all the incentives are actually done obviously for two criteria but from a mechanical trades perspective they're done for - one issue is the compliance with the contractor flexibility clause in relation to contractors and to maintain their skill level for the trades in WA.

PN1590

Sure?---So this, when this was actually structured it was - we obviously - the contractor flexibility isn't relevant for this clause because we - for this agreement because we don't have supplementary shifts in that scenario so it was determined that the clause would be used but it would be done on a wide basis in terms of it would be compliance for all issues in the agreement as opposed just for contractor flexibility.

PN1591

Well, who determined that in relation to A7?---Management.

PN1592

Okay. Look, is it fair to say that the only common wording in the two clauses is that all parties comply with the grievance procedure?---I'm not saying that it's in relation to the wording. I'm saying it's in relation to the concept behind it.

**** MELINA MARY QUINLAN XXN MR MCLANE
PN1593

So it's the view of Alcoa management?---In terms of it's for compliance with the DSP.

PN1594

Sure, because that's there it's a clear obligation?---Yes.

PN1595

Just as taking care of the unplanned absences is?---And the same scenario is replicated in the building technicians agreement.

PN1596

Yes, and that's carpenters in every day language?---Yes, yes.

PN1597

So is it your evidence that there is no link, formal link between those two allowances, that the link is management's perception of it is or understanding
- - -?---No, no, the link - - -

PN1598

- - - is that they're linked?---No, the link is that the payment provides a compliance part. There's a part of the actual payment that requires compliance whether it be for one clause or for 10 clauses. That's the actual construct behind the clauses being structured this way.

PN1599

THE COMMISSIONER: There's a difficulty we're having with the term link. I mean I think what's being said is that they have similar provisions but I don't know whether link, what link means. I mean if we're going to go down this path you better - - -

PN1600

MR MCLANE: Yes. No, look, I'm not going to push it any further, sir, I'll deal with it in submissions. I think I've established what I'm alluding to there.

PN1601

THE COMMISSIONER: Thank you.

PN1602

MR MCLANE: Sorry, you've conceded I think no link between A7 and A8, that's the - - -

PN1603

THE COMMISSIONER: A9.

PN1604

MR MCLANE: A9, sorry. That's the wheeling of power. You obviously, given that you've said that you weren’t at any of the meetings, weren't in a position to be able to read any of the facial expressions or body language of the union delegates - sorry, I need an answer, it just doesn't pick up - - -?---Sorry, I forgot. No, that's correct.

**** MELINA MARY QUINLAN XXN MR MCLANE
PN1605

Okay. And really your firm views on what the understanding is and what the position is have been formed through various discussions that you've had with Alcoa management and dealings within Alcoa management?---In what respect?

PN1606

The firm views that you have put forward about how it should be paid?---Yes, and also in my discussions with Gary as to how this would be drafted.

PN1607

Right. Well, did Gary ever say to you that's fine, pay it in arrears?---No, but we did have the discussion that it would operate on the same basis as the mechanical trades incentive payment.

PN1608

Yes, and if you go to that, I think it's clause 9 of your statement from memory. You say Garry would have agreed?---Yes.

PN1609

I actually had that discussion with Mr Wood and I put to you that he says yes in relation to point 1 of A7, the settlement of disputes procedure, that is common with the trades?---No, I'm not referring to that in that part of my statement.

PN1610

No, Mr Wood, sorry?---Okay.

PN1611

Perhaps I've confused you?---Yes.

PN1612

Mr Wood says yes, I did agree with the proposition as amended in appendix 7 but my agreement was in terms of the link with the metal trades agreement that that is in relation to compliance with the resolution of issues and grievance procedure?
---Well, I would have to refute that because the discussion that Gary and I had is in relation to the 2880 payment. It wasn't about part 1 or 2.

PN1613

All right. So did he agree that it would be paid in two instalments?---Yes, and the wording as outlined in the original draft.

PN1614

As it says here, yes:

PN1615

The incentive shall be paid on a six monthly basis for the life of the agreement.

PN1616

?---No, it was prior to that. It was a previous document on 5 August.

PN1617

I put it to you that Mr Wood never agreed with you that their payments would be in arrears?---Well, that's not correct. I refute that.

**** MELINA MARY QUINLAN XXN MR MCLANE
PN1618

What did he say to you then?---We had discussions. I was actually looking at the wording, how the wording was going to be constructed in terms of the 2880. We had the discussion around the payment would operate on the same basis as mechanical trades and therefore the first draft that I sent to him on 5 August the wording was almost identical to the mechanical trades.

PN1619

Ms Quinlan, I've got to be very careful with what I say and the answer. I put it to you that Mr Wood never said to you, okay, we'll pay in arrears?---Absolutely correct, we did not use the words in advance or in arrears. It was strictly on the basis that we would operate on the same basis as mechanical trades.

PN1620

Which you understood to mean in arrears. You're not ruling out the possibility that Mr Wood may have thought something else?---No, because I knew he knew about the mechanical trades agreement payment system.

PN1621

Yes, okay. Thank you. Sorry, just bear with me, I've got lost. You referred to the supplementary payment in the trades?---Yes.

PN1622

How is that paid?---Essentially it's paid in two instalments on a six monthly basis so from the date of the certification of the agreement the first six months and the six months after the payment is paid.

PN1623

Okay. Now, what about if someone comes in and provides cover, do they get paid in that pay for the cover they've provided under the metal trades?---No, that's not part of their incentive payment.

PN1624

No, but do they get paid extra for coming in and working?---They get paid on a different system which is called supplementary shifts.

PN1625

And they get paid for that supplementary shift in the next pay, as well as the supplementary payments?---They get their supplementary shifts obviously every fortnight and the incentive payment at the end of six months.

PN1626

Yes, so they get paid twice - well, not twice but they get paid once in a fortnightly pay for the work done and then if they honour the deal they get the payment for the supplementary pay - sorry. They then get after six months, they get the supplementary payment incentive?---On the basis that there hasn't been any disputes in relation to the use of contractors.

**** MELINA MARY QUINLAN XXN MR MCLANE
PN1627

Yes, but they've complied - - -

PN1628

THE COMMISSIONER: I don't think it would be always in the same fortnight. I would think it would be like claiming overtime and that they would take a little time for the paperwork to trickle through. I've had a dispute on this.

PN1629

MR MCLANE: Okay, I'll leave it there?---I wasn't going to - - -

PN1630

I will leave that there. We were talking about intense, weren't we? Thank you. See, all this has broken out since I left the metal workers. I wonder if they'll use it as a defence down at the Federal Court. That does me, sir. Thank you,
Ms Quinlan.

PN1631

THE COMMISSIONER: Thank you, Mr McLane. Mr Heelan.

PN1632

MR HEELAN: Thank you, sir.

<RE-EXAMINATION BY MR HEELAN [4.16PM]

PN1633

MR HEELAN: Ms Quinlan, does a URO incentive payment apply under the mechanical trades agreement?---No.

PN1634

Does a URO incentive payment apply under the CEPU electrical trades agreement?---No.

PN1635

Does a retention allowance apply under the Powerhouse agreement?---No.

PN1636

Do you consider there's any link between how the URO incentive payment came to being under the Powerhouse agreement and the retention payments under the other agreements?---Sorry?

PN1637

Do you consider there is any link as to how the URO incentive payment came into being under the Powerhouse agreement and the retention allowances under the other agreements?---I suppose are you referring to my discussion I just had with Mr McLane, yes. In terms of the construct of the clause was based on the provision under the mechanical agreement.

PN1638

What do you mean the construct of the clause?---In terms it had to contain a requirement for compliance with the disputes procedure.

**** MELINA MARY QUINLAN RXN MR HEELAN
PN1639

And you also said that you referred to Mr Wood knowing all about the mechanical trades agreement payment system?---Yes.

PN1640

How did he know about it?---Because on previous discussions with him he was aware that the mechanical trades incentive payment is paid on a six monthly basis.

PN1641

In arrears?---He didn't specifically tell me in arrears but I knew that he knew - he told me he knew how the system worked, so it was paid six monthly.

PN1642

Thank you, Ms Quinlan. I have nothing further, sir.

PN1643

THE COMMISSIONER: Thank you. The witness is excused, thank you.

<THE WITNESS WITHDREW [5.18PM]

PN1644

THE COMMISSIONER: You've got one more witness to go?

PN1645

MR HEELAN: I do, sir.

PN1646

THE COMMISSIONER: I'm just reflecting up here and I'm not sure we've got any evidence so far, we've been here all day and I don't think we've got any evidence to say that during the discussion between a management person and the union person the issue - we've got plenty of discussion about payment six monthly but I don't think we've got any evidence about any discussion whether anyone said to anyone else that it was paid in arrears or paid in advance. I'll check the transcript but I'm pretty sure we haven't got anything yet so far. We might have something in the next witness, that's why I'm saying it, because in Mr Ryan's statement he seems to be saying something in that paragraph about that risk but then he says, well, I didn't really do that, that was - sorry, Mr Watt said it was really left to Mr Ryan, so I'll be listening to the evidence as to whether or not there's an exception there.

PN1647

MR HEELAN: Yes.

PN1648

THE COMMISSIONER: Okay.

PN1649

MR HEELAN: I don't think I have ever suggested otherwise to you, sir.

PN1650

THE COMMISSIONER: Okay, that's fine.

PN1651

MR HEELAN: Is there any prospect of a - - -

PN1652

THE COMMISSIONER: What do you want, 10 minutes?

PN1653

MR HEELAN: A couple of minutes.

PN1654

THE COMMISSIONER: A couple of minutes adjournment, sure. We'll just break, what do you want - - -

PN1655

MR MCLANE: I'm fine, sir, 10 minutes.

PN1656

THE COMMISSIONER: Okay, 10 minutes. We'll start at 5.30.

PN1657

MR HEELAN: Thank you, sir.

<SHORT ADJOURNMENT [5.19PM]
<RESUMED [5.35PM]

PN1658

THE COMMISSIONER: Thank you. Can we just go off the record for a sake.

<OFF THE RECORD

PN1659

THE COMMISSIONER: Yes, Mr Heelan.

PN1660

MR HEELAN: Thank you, sir. Sir, I now call Robert John Ryan.

<ROBERT JOHN RYAN, AFFIRMED [5.40PM]
<EXAMINATION-IN-CHIEF BY MR HEELAN

PN1661

MR HEELAN: Sir, I would like to show the witness a document. It's a witness statement signed by the witness and it's in identical terms to document 2 I think, Commissioner.

PN1662

THE COMMISSIONER: Three.

PN1663

MR HEELAN: Thank you.

EXHIBIT #H12 STATEMENT OF MR RYAN

PN1664

MR HEELAN: Thank you, sir.

PN1665

Mr Ryan, is the document in front of you the witness statement you've prepared and signed in relation to this matter?---Yes, it is.

PN1666

Is the content of that document true and correct to the best of your knowledge?
---Yes.

PN1667

Do you adopt that as your evidence for the purposes of these proceedings?---Yes, I do.

PN1668

At the bottom of paragraph 5, Mr Ryan, at the top of the second page, you refer to mechanical trades employees across Western Australia, refer to clause 8(f), is that clause 8(f) of the mechanical trades agreement or some other?---The mechanical trades.

PN1669

In clause 9 you refer to the introduction of APP in 1992?---Yes, that's correct.

PN1670

And I ask you to look at the documents in document numbers 29. Do you have number 29?---Yes, they're in front of the tab or behind it?

PN1671

They're behind the tab?---They're behind it, yes. Yes.

PN1672

Is that document the APP agreement for the Kwinana refinery, Mr Ryan?---Yes, it is.

PN1673

Could I have that marked, please, sir.

EXHIBIT #H26 ALCOA OF AUSTRALIA KWINANA ALUMINA REFINERY POWERHOUSE AGREEMENT 1992

PN1674

MR HEELAN: Thank you, sir.

**** ROBERT JOHN RYAN XN MR HEELAN
PN1675

And document 30, Mr Ryan, is that the APP agreement for the Wagerup refinery?---Yes, it is.

PN1676

Could I ask that that be marked, please, sir?

EXHIBIT #H27 ALCOA OF AUSTRALIA WAGERUP ALUMINA REFINERY POWERHOUSE AGREEMENT 1992

PN1677

MR HEELAN: Thank you, sir.

PN1678

Document 31, does that reflect the APP agreement for the Pinjarra refinery?
---Yes, it does.

PN1679

Could I ask that that be marked, please, sir.

EXHIBIT #H28 ALCOA OF AUSTRALIA PINJARRA ALUMINA REFINERY POWERHOUSE AGREEMENT 1992

PN1680

MR HEELAN: Thank you, sir.

PN1681

Mr Ryan, the document after 32, does that reflect the agreement that replaced those APP agreements?---Yes, it does.

PN1682

Could I ask that that be marked, please sir.

EXHIBIT #H29 ALCOA WORLD ALUMINA – AUSTRALIA KWINANA, PINJARRA AND WAGERUP REFINERIES POWERHOUSE AGREEMENT 2001

PN1683

MR HEELAN: Thank you, sir.

PN1684

In paragraph 11 - I withdraw that. I'm sorry, in paragraph 11 you refer to see clause 4(a)(ii), (iii), et cetera. Which agreement are you referring to there?---To our current agreement, WA Powerhouse agreement.

PN1685

Thank you. In paragraph 15 you refer to a memorandum dated 10 June 2005. I just ask you to turn to document number 10. Does the document attached to that email cover the document that you're referring to in paragraph 15?---Yes, it does, yes.

**** ROBERT JOHN RYAN XN MR HEELAN
PN1686

I would ask that that be marked, please, sir.

EXHIBIT #H30 EMAIL TO MR RYAN FROM MR WOOD, DATED 10/06/2005 WITH ATTACHED CERTIFICATE AGREEMENT NEGOTIATIONS

PN1687

MR HEELAN: Thank you, sir.

PN1688

Mr Ryan, in paragraph 17 you refer to a copy of an agreement that you sent out on 28 June 2005. I would ask that you turn to document 7 which is exhibit H10?
---Yes, I've got it.

PN1689

Is that the document you're referring to in paragraph 17 of your statement?---Yes, it is.

PN1690

Thank you, sir. And that's exhibit H10, is it?---Yes.

PN1691

In paragraph 21 you refer to an email that you sent on 4 July 2005. I would ask that you turn to document number 16, so it's exhibit H5.

PN1692

THE COMMISSIONER: Which paragraph is that, Mr Heelan, paragraph 21 is it?

PN1693

MR HEELAN: 21, sir, and its H5

PN1694

Is that the document to which you're referring?---Yes, it is.

PN1695

If I could ask that the witness be shown exhibit H4 too, please.

PN1696

In paragraph 22 you refer to correspondence from the union of 5 July 2005. Is exhibit H4 the document you're referring to?---Yes, that's right.

PN1697

Thank you. In paragraph 24, the first sentence, you refer to the agreement went to a vote on 28 July 2005. If I could ask that the witness be shown H11, please.

PN1698

THE COMMISSIONER: Sorry, which paragraph, Mr Heelan?

PN1699

MR HEELAN: The first sentence in paragraph 24, sir.

PN1700

THE COMMISSIONER: Yes.

**** ROBERT JOHN RYAN XN MR HEELAN
PN1701

MR HEELAN: Does exhibit H11 reflect the confirmation you received from the union in relation to that vote?---Yes, it does.

PN1702

Is there anything in there about payment of $2800?---No, there's not.

PN1703

Anything in there about the ballot being less than a final ballot?---No.

PN1704

Anything said to you about either of those matters?---Not at the time.

PN1705

Paragraph 25 you refer to proposals regarding the 2880 incentive payment, was the union claim that led to that incentive payment based on any other agreement?
---There was discussion around offers that had been made or discussed between the company and the metal trades and it was mainly based around the supplementary shifts that they were going to be paid for and a retention allowance that they were being paid and it was seen that the union felt that that wasn't equitable and consequently the discussion then got to the 2880.

PN1706

And was that based on the supplementary shifts provision of the mechanical trades agreement or the retention and compliance allowance?---I believe that it was a bit of both but more so the supplementary shifts.

PN1707

More so than the retention and compliance allowance?---Yes, the retention allowance had been discussed prior and we had advised the union that we didn't believe that it was relevant to the Powerhouse agreement.

PN1708

In paragraph 30 you refer to a memorandum you sent to Powerhouse personnel on 11 August?---Sorry, what paragraph?

PN1709

Paragraph 30?---30.

PN1710

If I could ask you to turn to document 4 in the bundle in front of you, is that the documentation to which you refer in paragraph 30, Mr Ryan?---Yes, it is.

PN1711

Sir, I would ask that that be marked, please.

EXHIBIT #H31 EMAIL TO WA POWERHOUSE OPERATIONS EMPLOYEES FROM MR RYAN, DATED 11/08/2005 WITH ATTACHED EBA DOCUMENT 11/08/2005

PN1712

MR HEELAN: Thank you, sir.

**** ROBERT JOHN RYAN XN MR HEELAN
PN1713

Was the presentation, again on paragraph 30, was the presentation that you set out the document which is at document number 5?---Yes.

PN1714

Sorry, perhaps I really should rephrase that, Commissioner. In relation to the document you sent out that you refer to in paragraph 30, which is the document which led to the agreement?---Mm.

PN1715

Did you send out a presentation in relation to that agreement?---Yes.

PN1716

And is that the document which is contained at number 5 in the bundle?---Yes, it is.

PN1717

Sir, I would ask that that be marked, please.

EXHIBIT #H32 EMAIL TO WA POWERHOUSE OPERATIONS EMPLOYEES FROM MR RYAN, DATED 11/08/2005 WITH ATTACHED CFMEU FINAL PRESENTATION

PN1718

MR HEELAN: Thank you, sir.

PN1719

In paragraph 32 you refer to receipt of an email from Gary Wood on 23 August. If I could ask that the witness be shown H9, please. Is that the email to which you're referring in paragraph 32, Mr Ryan?---Yes, it is.

PN1720

In paragraph 33 you refer to a letter you received from Gary Wood on
5 September 2005. I would ask that you turn to document number 6, is that the correspondence to which you're referring in paragraph 33?---Yes, it is.

PN1721

Could I ask that that be marked, please.

EXHIBIT #H33 EMAIL TO MR RYAN FROM MR WOOD, DATED 05/11/2005 WITH ATTACHED CONFIRMATION OF VOTE FOR WAO POWERHOUSE EBA LETTER

PN1722

MR HEELAN: Thank you, sir.

PN1723

Mr Ryan, how are allowances paid under the mechanical trades agreement?---In arrears.

PN1724

How is the retention and compliance incentive paid under the mechanical trades agreement?---Yes, in arrears. All of the allowances are paid in arrears.

**** ROBERT JOHN RYAN XN MR HEELAN
PN1725

How about under the CEPU electrical trades agreement?---In arrears.

PN1726

How about under the AWU agreements?---Yes, the same in arrears.

PN1727

And in your view if a different approach was adopted with the Powerhouse personnel is there any likely consequence?---They'd all be after it. If we did anything consistent with what had been done with others I believe that we would have a line of people putting their hand up wanting the same.

PN1728

And in WA operations approximately how many employees are employed in the Powerhouse operations?---84 I think it is.

PN1729

And in WA operations approximately how many employees are covered by other certified agreements?---Probably 3000 odd.

PN1730

3000 odd?---Possibly.

PN1731

When the concept of re-rosters or time in lieu came in to cover URO do you recall when that was?---I recall that it was about three years before this agreement.

PN1732

Whereabouts?---At Kwinana.

PN1733

Do you have any knowledge about Pinjarra and Wagerup?---My recollection is that we raised it about three, three and a half year ago to get consistency across three Powerhouses.

PN1734

And with the adoption of that time in lieu or re-roster approach how did that sit with the principles of APP?---It flew in the face of the principles of APP. As I recall APP was - there was transition payment and also an increase in the hourly rate to cover extra hours worked. My understanding of the extra hours at the time was set a reasonable amount and that was considered it could be anything from four to six hours a week and there was a lot of discussion at the time of the introduction of the time in lieu or re-roster that there was some double dipping going on.

PN1735

When you refer to the four to six hours a week was that per week or on average?
---I think it was on average.

PN1736

Is it within your authority to - I'm sorry, I withdraw that. Sorry, was the effect of the introduction of the time in lieu approach that the company was effectively paying twice for URO cover?---I believe so.

**** ROBERT JOHN RYAN XN MR HEELAN
PN1737

Mr Ryan, is it within your authority to agree to pay this allowance up front for Powerhouse personnel?---No, it's not and there were many times through the negotiations that we had to go back to our senior management group and get clarification or direction or authorisation to move on things.

PN1738

Yes, thank you, Mr Ryan. I have nothing further, sir.

PN1739

THE COMMISSIONER: Mr Heelan when you asked that question about the doubling up are you talking about now or prior to this current agreement?

PN1740

MR HEELAN: The question was on the basis of the time in lieu or the re-roster arrangements which would have been the period prior to these arrangements coming into effect.

PN1741

THE COMMISSIONER: Yes, I see, thank you.

PN1742

MR HEELAN: Thank you, sir.

PN1743

THE COMMISSIONER: Yes, Mr McLane.

<CROSS-EXAMINATION BY MR MCLANE [5.57PM]

PN1744

MR MCLANE: Mr Ryan, Alcoa has an agreement with the days in lieu or the rostering re-arrangement that came about, weren't they?---Within the Powerhouse?

PN1745

Yes?---Yes.

PN1746

That's not something - well, thank you. You have just said that a number of times you had to go back to management and senior manager and get clarification on the agreement, I assume as it was evolving?---Yes.

PN1747

Did you ever seek clarification from them in relation to the instalments being paid in arrears?---It was always discussed that it would be in arrears as per all of the other allowances.

PN1748

So the answer to that question is no, is it? My question is did you ever have to go to senior management for clarification in relation to the URO being paid in arrears?---No, I didn't.

**** ROBERT JOHN RYAN XXN MR MCLANE
PN1749

And I take it that you never at any stage spelt out to the union negotiators that the payment would be in arrears prior to the agreement being certified?---No, I never ever mentioned the word arrears but I do recall having a conversation about it being a compliance payment.

PN1750

Yes. And probably if we go to - Mr Heelan took you to paragraph 25 of your statement?---Yes.

PN1751

And that relates to numerous with Gary Wood on the telephone?---That's right.

PN1752

And it's regarding the issue of following a vote on the original agreement and you then say:

PN1753

Whilst I do not recall using the word arrears or retrospective, you know, I specifically recall, you know, saying it would be aligned to the six monthly increments -

PN1754

et cetera?---Mm.

PN1755

I put it to you that you don't recall using the word arrears or retrospective because you never did?---I don't believe I did.

PN1756

Okay, thank you. So it's not just a question of not recalling?---No, no.

PN1757

You never did use those words?---I didn't use the word arrears or retrospective.

PN1758

Sure, thank you?---What I used was that it would be aligned with the six monthly increments.

PN1759

Yes. And by aligned you meant aligned with the one done for the trades?---No.

PN1760

Sorry?---No. The operators get six monthly increments in their wages and have done for some time and in the initial discussions - - -

PN1761

On the increments, sorry?---Yes.

PN1762

Yes?---In the initial discussions that was when we talked six monthly we were talking about aligning them with those six monthly increments.

**** ROBERT JOHN RYAN XXN MR MCLANE
PN1763

Okay. And was agreement - well, obviously was never reached and that didn't happen?---On the fact that they would be six monthly.

PN1764

Are we talking the increments or the instalments?---We're talking the instalments. We're talking the URO and the compliance to the grievance.

PN1765

Right. And I take it your evidence is that there was agreement reached to pay six monthly because that's what's reflected in the agreement?---Yes.

PN1766

But there was never agreement reached that they be retrospective?---No.

PN1767

How long have you been involved in negotiations at Alcoa, the negotiations between Alcoa and the unions and the Powerhouses?---For all of this agreement negotiations and for some different disputes prior to that and - - -

PN1768

Not the - sorry, yes?---Approximately I've been involved with the Powerhouses for about eight years but specifically around union type issues and they're probably three to four years.

PN1769

Okay. So you weren't involved in the APP negotiations?---I was in another area in the refinery at that time.

PN1770

So were you involved in those with other unions?---I was in a staff position and yes, I was with the unions.

PN1771

But not with the CFMEU?---No, not at that time.

PN1772

Thank you. I'm pretty sure it was, it's just getting a bit late in the day and if I'm wrong I'm sure Mr Heelan will let me know, my recollection is that the evidence of Mr Keeley earlier on was that it was you who first heard mentioned the proposition of the 2880, is that correct?---I'm not sure. I believe that the first one that I had a discussion with was Gary Wood and that it probably come back through the union, but certainly after that there was discussion between myself and Mr Watt and the negotiating team which involved Mr Wood and the two representatives on each of the sites.

PN1773

Okay. And you've sat through the evidence of our two witnesses and the evidence of Mr Watt?---Mm.

**** ROBERT JOHN RYAN XXN MR MCLANE
PN1774

And I think the evidence is all pretty well much the same in relation to the concept of the instalments coming after the proposition of 2880?---Yes. I'm not sure that it wasn't discussed earlier in the piece in some of those phone calls and the group, the main context of the discussions with the group was what the guys had to do to achieve the 2880.

PN1775

Sure, but I'm talking specifically two instalments?---Yes.

PN1776

Do you say that might have - I think Mr Watt's evidence was that it came later on in the drafting and I think that was consistent with the evidence of Mr Keeley?
---Yes, I guess it did come later on in the drafting but I believe that we had discussion about it being six monthly prior to it being drafted.

PN1777

Okay. But not at the time that the proposition was first floated and then subsequently agreed for 2880?---At the time the proposition was first floated it was more about what it was for and about it being a compliance payment.

PN1778

Okay. And are you also willing to concede that the CFMEU tried to up the ante a big and increase the - - -?---Well, they're a negotiating group, they tried that for three years.

PN1779

And eventually that figure was settled on?---Yes, the one thing that we were consistent with was we said all along that we wouldn't pay for URO coverage and I must point out that it's not a payment for URO coverage. It's a payment for URO coverage and compliance to the disputes procedure.

PN1780

Well, that's probably what the benefit of hindsight that that clarification slips in I'd say because that's not the way you drafted it?---It certainly is.

PN1781

We might just have a look at that shortly?---Yes.

PN1782

Is it fair to say that when you found out that the retention bonus incentive had been negotiated with the trades that to some degree you were left exposed?---Very much so.

PN1783

Did you at any time, did you attend any of the meetings and provide explanations before people voted on the CFMEU agreement?---No, I didn't, not directly before the vote. We had communication meetings at each of the sites that I helped present in conjunction with the negotiating group for explanation and clarification of the contents of the agreement and I did that on a regular basis. But at the time of the first vote I was actually up north and that's why Mr Watt was involved with that.

**** ROBERT JOHN RYAN XXN MR MCLANE
PN1784

Okay. Did any questions come up about whether it would be paid on registration or in arrears?

PN1785

THE COMMISSIONER: I'm a getting confused, Mr McLane.

PN1786

MR MCLANE: Sorry, sir.

PN1787

THE COMMISSIONER: I think the witness is talking about the first vote when the 2880 came in the second vote, didn't it? It wasn't in the first vote, it hadn't been - - -

PN1788

MR MCLANE: I don't know.

PN1789

THE COMMISSIONER: I see. That was my understanding of the evidence?
---Yes, that's right, Commissioner.

PN1790

All of the evidence I think is saying that - - -

PN1791

MR MCLANE: Okay. Thank you for that, sir, I'm sorry.

PN1792

THE COMMISSIONER: Just say the second vote then.

PN1793

MR MCLANE: Yes. Look, I'm sorry, the second - was it your evidence at the time of the second vote - - -

PN1794

THE COMMISSIONER: That you went around to the communication meetings and also attended the vote.

PN1795

MR MCLANE: No, if you would put the question, sir, I would appreciate it.

PN1796

THE COMMISSIONER: In respect of the second, the lead up to the second vote are you saying now that you went to the communication meetings?---We didn't have time for communication meetings with all of the crews between the two votes. What we did was we - and because there was only change to the A7 part of the agreement, we posted that and put it on noticeboards and made ourselves available for people if they had any concerns or queries. Most of the questions that I dealt with come through Mr Wood and we'd briefed our staff who were up to date so that they could answer any concerns within their crews.

**** ROBERT JOHN RYAN XXN MR MCLANE
PN1797

MR MCLANE: I think I can clarify it, sir.

PN1798

Is it right that those information briefings you've just spoken about, they happened well before the vote was taken?---Yes, yes. I wasn't involved in briefing sessions at the vote.

PN1799

At the vote, on either occasion, the first time the agreement went up?---Or the second.

PN1800

Or the second, thank you.

PN1801

THE COMMISSIONER: But he's saying in respect of the second there were no meetings. It was more done by emails and correspondence and inviting people to send their queries in and the queries he received was via Mr Wood?---That's correct.

PN1802

MR MCLANE: That's fine.

PN1803

THE COMMISSIONER: And the crucial thing is in all of that second thing that you were involved in was the issue raised as to whether the amounts would be paid in arrears or up front?---No, never.

PN1804

MR MCLANE: Thank you. Have you ever had a hire purchase agreement in your life with a hire purchase company?---I think we all have, yes, yes. Certainly have, I've .....

PN1805

Exactly. And would it have been, if you can recall back that far given that you work for Alcoa, it would have been many years I'd assume since you've heard it?
---I'm not so sure of that.

PN1806

Can you recall how often you were required to pay the instalments, would it have been monthly?---Yes, I think it was monthly, I'm not sure. It used to come out of the bank account and I didn't worry too much. I was more worried about working so that I could get paid for the work and the money was there.

PN1807

Yes. Would it be fair to say that you would have paid your first instalment and then monthly thereafter?---Yes, that's probably right. I was buying something, then.

**** ROBERT JOHN RYAN XXN MR MCLANE
PN1808

Thank you. If I can just have two seconds, sir?---Sorry.

PN1809

No, you're fine. Is it true to say that the briefing sessions that you provided were before the 2880 was agreed?---Yes.

PN1810

Thank you. I have no further questions, sir.

PN1811

THE COMMISSIONER: I might just ask a question if I may?---Sure.

PN1812

Can you just show Mr Ryan exhibit H15, which is the statement of Mr Watt. If you can just have a - if you could just read paragraph 27 which goes over the page?---Yes.

PN1813

So:

PN1814

You know, I can also recall Bob Ryan words to this effect.

PN1815

And it goes on. What's your recollection, what's your evidence in this respect?
---In my recollection of conversations that I had face to face and also phone calls with Mr Wood was that it was a compliance payment and it was an at risk payment if it wasn't - if it wasn't provided then we wouldn't pay. We had discussion about whether you wouldn't just stop it and we said, well, we would do it in the context of the agreement that we'd pull people together and do it in a consultative manner and hopefully if it continued the way that it had continued in the history of the Powerhouses where the coverage was provided and pretty much managed within the crews, that it wouldn't be an issue.

PN1816

But just looking at the rest of it, the last bit of it, did you have nay conversation with Mr Wood saying that the payment will be made in line with the incentive payment in A6 - A9, sorry?---Yes, I did.

PN1817

What was that about, what did you say?---That it would be a similar payment but I said it would be paid six monthly and my intention there was that it would be made in alignment with that incentive payment which is in arrears. But I didn't say it would be made in arrears.

PN1818

So A9 is made six monthly?---A9 is actually it's measured quarterly and the intention was to pay it six monthly.

**** ROBERT JOHN RYAN XXN MR MCLANE
PN1819

So you had a conversation that you're saying that you indicated would be in line with that?---Yes.

PN1820

On a six monthly basis whilst you knew that A9 was paid in arrears, you didn't actually have those words or that conversation with Mr - - -?---I didn't use those words, no.

PN1821

Thank you very much. Yes, Mr Heelan.

PN1822

MR HEELAN: Thank you, sir.

<RE-EXAMINATION BY MR HEELAN [6.15PM]

PN1823

MR HEELAN: What did you mean by at risk?---At risk or compliance I meant that if the service wasn't provided then the payment wouldn't happen.

PN1824

They'd miss out?---Yes.

PN1825

Were any compliance payments - I withdraw that. Are all compliance payments at Alcoa paid in arrears?---To my knowledge, yes.

PN1826

And six monthly in arrears?---Normally and some 12 monthly.

PN1827

Any less than six monthly?---Not to my knowledge.

PN1828

Mr Ryan, in relation to the second ballot you referred to there not being any meetings by way of explanation to employees but you did send out a detailed presentation to employees, did you not?---That's right.

PN1829

And that detailed presentation, could I ask the witness be shown exhibit H32, please?---Yes, I see it.

PN1830

That's the document you refer to, H32 which is under a covering email from yourself to the employees dated Thursday, 11 August 2005 at 1515?---That's right.

**** ROBERT JOHN RYAN RXN MR HEELAN
PN1831

Thank you, Mr Ryan. I have nothing further, sir.

PN1832

THE COMMISSIONER: Very well. Thank you very much, you're excused.

<THE WITNESS WITHDREW [6.17PM]

PN1833

THE COMMISSIONER: Now, I think we're up to you're going to make your submission - sorry, no, you've called your evidence, that's finished?

PN1834

MR HEELAN: Yes, sir, yes.

PN1835

THE COMMISSIONER: Yes. I think what we agreed to before Mr McLane was going to make his submission. I'll also ask, what do you want to do, do you want to keep going or do you want to have a bit of a break, or what are we going to do? Obviously it's the wish to finish tonight, is it? That's okay by me if you want to but I've got a couple of questions I need to ask so what I would say to you I suppose you can take them on notice if you like.

PN1836

MR HEELAN: Could I just get some instructions?

PN1837

THE COMMISSIONER: I mean I don't know what you've both got on tomorrow. I don't want to put it off for a week or anything like that?

PN1838

MR MCLANE: If we could come back and do the whole submissions it's going to save everybody a lot of work.

PN1839

THE COMMISSIONER: We will just go off the record.

<OFF THE RECORD

PN1840

THE COMMISSIONER: Whilst we've been off the record I've had a discussion with the representatives of the parties and we're at the stage now having concluded with the evidence of each of the parties to hear submissions both from Mr McLane and then Mr Heelan. It's been decided that that hearing will resume at 8 o'clock on Monday, 6 February 2006. This matter is adjourned, thank you.

<ADJOURNED UNTIL MONDAY, 6 FEBRUARY 2006 [6.23PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

JOHN KEELEY, AFFIRMED PN76
EXAMINATION-IN-CHIEF BY MR MCLANE PN76
CROSS-EXAMINATION BY MR HEELAN PN156
EXHIBIT #H1 LETTER TO WILLIAM ELLIOTT DATED 27/07/1992 PN303
EXHIBIT #H2 LETTER TO JOHN KEELEY DATED 15/10/1992 PN313
EXHIBIT #H3 AFFIDAVIT OF RAYMOND WATSON DATED 22/09/2006 PN395
EXHIBIT #H4 EMAIL TO ROBERT RYAN DATED 05/07/2005 PN604
EXHIBIT #H5 EMAIL HEADED GRAEME KIPPS PN620
EXHIBIT #H6 THREE-PAGE EMAIL HEADED GRAEME KIPPS PN664
EXHIBIT #H7 MINUTES OF MEETING DATED 07/11/2005 PN690
RE-EXAMINATION BY MR MCLANE PN748
THE WITNESS WITHDREW PN807
MATTHEW PETER ROLLS, SWORN PN813
EXAMINATION-IN-CHIEF BY MR MCLANE PN813
CROSS-EXAMINATION BY MR HEELAN PN921
EXHIBIT #H8 - LETTER TO MATTHEW ROLLS DATED 27/07/1992 PN1054
EXHIBIT #H9 - EMAIL FROM SECRETARY CFMEU WA TO ROBERT RYAN DATED 23/08/2005 AND EMAIL FROM CFMEU WA DATED 15/08/2005 TO LARGE NUMBER OF PEOPLE PN1092
EXHIBIT #H10 - MAIL-OUT BY GARY RYAN TO EMPLOYEES DATED 28/06/2005 PN1107
EXHIBIT #H11 - EMAIL TO ROBERT RYAN DATED 19/07/2005 ATTACHING UNSIGNED LETTER FROM MR WOOD DATED 19/07/2005 PN1111
RE-EXAMINATION BY MR MCLANE PN1122
FURTHER CROSS-EXAMINATION BY MR HEELAN PN1184
FURTHER RE-EXAMINATION BY MR MCLANE PN1202
THE WITNESS WITHDREW PN1210
EXHIBIT #H12 - RESPONDENT'S WRITTEN OUTLINE OF SUBMISSIONS PN1226
PATRICK ADRIAN WATT, AFFIRMED PN1315
EXAMINATION-IN-CHIEF BY MR HEELAN PN1315
EXHIBIT #H12 - WITNESS STATEMENT PN1324
EXHIBIT #H13 - MEMORANDUM PREPARED BY ROBERT RYAN PN1343
EXHIBIT #H14 OUTLINE OF SUBMISSIONS. PN1373
EXHIBIT #H15 STATEMENT OF MR WATT PN1373
EXHIBIT #H16 POWERHOUSE ABSENTEE SPREADSHEET 24/10/2005 TO 24/1/2006 PN1373
EXHIBIT #H17 SPREADSHEET OF COVERAGE FOR LAST THREE MONTHS PN1396
CROSS-EXAMINATION BY MR MCLANE PN1407
THE WITNESS WITHDREW PN1480
MELINA MARY QUINLAN, SWORN PN1482
EXAMINATION-IN-CHIEF BY MR HEELAN PN1482
EXHIBIT #H18 STATEMENT OF MS QUINLAN PN1486
EXHIBIT #H19 STATEMENT OF MS QUINLAN PN1497
EXHIBIT #H20 ALCOA WORLD ALUMINA AUSTRALIA, WA OPERATIONS (MECHANICAL TRADES) AGREEMENT 2005 PN1501
EXHIBIT #H21 EMAIL TO MR WOOD FROM MS QUINLAN RE: APPENDIX 7 OF AGREEMENT DATED 05/08/20005 PN1512
EXHIBIT #H22 EMAIL TO MR WOOD FROM MS QUINLAN RE APPENDIX 7 OF AGREEMENT WITH PROPOSED CHANGES, DATED 08/08/2006 PN1515
EXHIBIT #H23 EMAIL TO MS QUINLAN FROM MR WOOD, DATED 08/08/2005 PN1525
EXHIBIT #H24 EMAIL TO MR WOOD FROM MS QUINLAN, DATED 09/08/2006 WITH ATTACHMENT LETTER FROM
MS BUTLER PN1527
EXHIBIT #H25 EMAIL TO MR WOOD FROM MS QUINLAN WITH ATTACHMENT ALCOA WORLD ALUMINA AUSTRALIA, WA OPERATIONS (BUILDING TECHNICIANS) AGREEMENT 2005 PN1532
CROSS-EXAMINATION BY MR MCLANE PN1547
RE-EXAMINATION BY MR HEELAN PN1632
THE WITNESS WITHDREW PN1643
ROBERT JOHN RYAN, AFFIRMED PN1660
EXAMINATION-IN-CHIEF BY MR HEELAN PN1660
EXHIBIT #H12 STATEMENT OF MR RYAN PN1663
EXHIBIT #H26 ALCOA OF AUSTRALIA KWINANA ALUMINA REFINERY POWERHOUSE AGREEMENT 1992 PN1673
EXHIBIT #H27 ALCOA OF AUSTRALIA WAGERUP ALUMINA REFINERY POWERHOUSE AGREEMENT 1992 PN1676
EXHIBIT #H28 ALCOA OF AUSTRALIA PINJARRA ALUMINA REFINERY POWERHOUSE AGREEMENT 1992 PN1679
EXHIBIT #H29 ALCOA WORLD ALUMINA – AUSTRALIA KWINANA, PINJARRA AND WAGERUP REFINERIES POWERHOUSE AGREEMENT 2001 PN1682
EXHIBIT #H30 EMAIL TO MR RYAN FROM MR WOOD, DATED 10/06/2005 WITH ATTACHED CERTIFICATE AGREEMENT NEGOTIATIONS PN1686
EXHIBIT #H31 EMAIL TO WA POWERHOUSE OPERATIONS EMPLOYEES FROM MR RYAN, DATED 11/08/2005 WITH ATTACHED EBA DOCUMENT 11/08/2005 PN1711
EXHIBIT #H32 EMAIL TO WA POWERHOUSE OPERATIONS EMPLOYEES FROM MR RYAN, DATED 11/08/2005 WITH ATTACHED CFMEU FINAL PRESENTATION PN1717
EXHIBIT #H33 EMAIL TO MR RYAN FROM MR WOOD, DATED 05/11/2005 WITH ATTACHED CONFIRMATION OF VOTE FOR WAO POWERHOUSE EBA LETTER PN1721
CROSS-EXAMINATION BY MR MCLANE PN1743
RE-EXAMINATION BY MR HEELAN PN1822
THE WITNESS WITHDREW PN1832