· They both presumed that the skills retention allowance would apply to all trades and non-trades staff and did not question its application.
· Mr Morgan deposed that some members expressed the view that the wage increase of 3% was inadequate. He advised them to accept the Industrial Agreement, having regard to the whole of the package including the increase in superannuation and skills retention allowance.
26 The Canterbury meeting was one of a number of such meetings held in various locations over a two week period.
27 A message to all staff from EnergyAustralia management on 18 December 2006 (Ex 6) advised that:
"the ETU, USU, CFMEU, AMWU and AWU representing more than 3,100 staff endorsed the offer following the mass meetings"
28 The parties then applied themselves to the necessary administrative requirements, resulting in formal approval of the Industrial Agreement before the Commission as presently constituted on 28 March 2007 [2007] NSWIRComm 74.
29 The MoU was not executed with the ETU until 15 August 2007.
30 Mr Worrell deposed that the skills retention allowance was explained to the meeting by Mr Riordan, State Secretary of the ETU, who described the allowance as a payment to let contractors do overflow work and that the allowance would be paid to tradespeople, apprentices and electricity supply operators. Mr Worrell's evidence is that the exact amount of the allowance was conveyed by Mr Riordan but that he could not recall the amount stated.
31 This evidence is supported by that of Mr Morgan who deposed that Mr Riordan informed the meeting that the 3% wage increase was supported by a 1% increase in superannuation contribution, an increase in the Electricity Safety Rules Allowance, and the skills retention allowance, through a memorandum of understanding which would allow EnergyAustralia to bring in contractors to deal with a backlog of capital works without the threat of industrial action.
32 Mr Morgan's evidence is that the meeting was informed that:
"the skills retention allowance not only provides for a cash payment, but gives security of employment for the life of the agreement"
33 Mr Morgan deposed that he addressed a group of the Union's delegates and members, saying words to the effect (Ex 8, para 13):
This is not a bad proposal. The pay rises are not great and we have given up one of the reporting days for sick leave. However, we have a 1% increase in super and the skills retention allowance. The skills retention allowance gives us the security employment in case of privatisation. I recommend you vote for it.
34 The evidence of Mr Morgan is that he then referred the extra matter to the Union's research department which attended to the detail of the industrial instrument which gave expression to the agreement reached. In cross examination Mr Morgan deposed that he did not take any issue with the fact that there is no reference to the MoU or skills retention allowance in the formal agreement submitted to the Commission for appeal.
35 The evidence of Mr Worrell is that in either August or September 2007 he became aware that the MoU had been concluded and was surprised that he and his workshop colleagues were not included. Mr Worrell deposed that he raised the matter with his immediate supervisor and the senior delegate of the Union at the depot. Mr Worrell's evidence is that his supervisor was unaware of the MoU and that the delegate believed that he was entitled to payment.
36 The evidence of Mr Morgan is that the Union's senior delegate at the Homebush Depot referred the issue to him. Mr Morgan took the matter up with EnergyAustralia by meeting and correspondence which failed to resolve the matter, leading to these proceedings.
37 EnergyAustralia brought evidence from Mr Richard Brown, Executive Manager, Business Services within the Enerserve division of EnergyAustralia.
38 Mr Brown described Enerserve as the engineering and construction division of EnergyAustralia's business, providing design, construction and maintenance to the electricity distribution networks.
39 Mr Brown has been employed by EnergyAustralia and its predecessors for 31 years, the past 10 years in his current role. Mr Brown described his primary responsibilities as industrial relations, workforce planning and development, financial management, and safety services, reporting to the General Manager of Enerserve.
40 Mr Brown's evidence was the he was not directly involved with negotiation of the MoU, however, was required to provide technical input by describing the type of works which were to be outsourced in Schedule 1 of the MoU.
41 Mr Brown differentiated between the type of work subject to the MoU, which he described as unique because of its size and because it involves the contracting out of EnergyAustralia's core function, namely work on the electrical network; compared to that which is outsourced in accordance with the provisions of cl 7 of the Industrial Agreement.
42 The evidence of Mr Brown emphasised that the MoU payments are confined to those employees "primarily affected by the defined capital works program".
43 Mr Brown deposed that each of the individual projects identified in Schedule 1 to the MoU involve contractors performing electrical and ancillary work, which is precisely the work currently performed by EnergyAustralia employees.