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Michael Robinson - a senior HR manager with Clean Event has been sworn and is in the witness box, he's adopted his witness statement which has been tendered and received into evidence.
Mr Robinson has given evidence that two unions had coverage of his company's employees - the LHMU which was "difficult to deal with" and the AWU which was much easier to deal with.
Stoljar pointed out that the difficulty with the LHMU arose from that union vigorously pursuing workers rights, including the payment of award-based conditions for weekends and other penalty-rate payments, whereas the AWU did not pursue workers entitlements with anything like the vigour of the LHMU.
Mr Robinson can't recall any discussion with Cesar Melham or Mr Blandthorn about a "service fee" of $25,000. Mr Robinson states that he has some recollection of some discussion about a 1% figure based on the turnover of Clean Event - but he has no recollection at all of any discussion about a service fee based on any purported delivery by the AWU of industrial or other services.
Stoljar repeated, "I asked you whether the $25,000 fee was a fee for the AWU to provide industrial representation..."
Robinson, "I just don't recall."
Mr Robinson can't recall any similar deal with any union, including the AWU.
He is now being shown a series of emails referring to "the attached MOU" with the AWU. He doesn't recall drafting the agreement - but he concedes it's likely he did draft it. It's also "likely" he gave it to the legal team for review. The MOU as drafted includes a provision for Clean Event to pay the AWU an amount up to $10,000, Robinson believes he had authority to discuss an amount up to that figure with the AWU. The MOU includes provision for the amount to be payable,"subject to the AWU providing suitable proof" that certain services had been provided.
Mr Robinson is in a spot of bother. He is floundering in his attempts to explain the appropriateness or desirability of a separate MOU alongside the Enterprise Bargaining Agreement as well as another "side letter" to the agreement. The essence of the arrangements was that an EBA was agreed, and a separate agreement with the AWU was entered into that included a "no strikes" and other provisions.
Mr Stoljar is now putting very direct propositions to Mr Robinson that expose the MOU/side-letter as a mechanism for Clean Event to pay $25,000 to the AWU in order to achieve the "consequences" set out in the side agreements, that including no strikes and other favourable conditions to Clean Event (and axiomatically to the detriment of the workers).
After a protracted series of questions Mr Robinson ultimately agreed with Mr Stoljar's eminently sensible view of what the documents say.
The Commissioner put to Mr Robinson that "the side letter was a rather unattractive object that would not be looked upon favourably by those charged with enforcing industrial law". Mr Robinson demurred somewhat, but there can be no other logical reason for the subterfuge and concealment of the matters set out in the side letter rather than the formally lodged EBA.
Mr Robinson claims he had no note books, no day book, no diary - nup, nothing, no records.
Mr Robinson was shown elements of a "side letter" which includes reference to Clean Event making a "contribution" to the AWU rather than referring to payment for membership dues. He is now trying to conflate "membership dues" with the term "contribution" to the AWU.
Mr Robinson is now talking about his "eagerness" to "close out the deal" with the AWU - he states that he thought an MOU was the way to go, Mr Blandthorn from the AWU thought a letter might be better. In any case, both parties appear by their conduct to have been keen to keep this matter far away from any industrially registered instrument like an EBA.
Mr Stoljar is taking Mr Richardson through the progressive escalation of the "fee for service" or "contribution" or whatever the various characterisations of the money from Clean Event to the AWU was called, it started at $10K, went to $20K then $25K. Mr Robinson states that it "should have been in a separate document because it didn't relate to the terms and conditions of Clean Event's employees." That's quite a considerable admission on Mr Robinson's part.
Mr Robinson states that "my role was to maintain the terms and conditions of the 2006 agreement" during the negotiations for the 2010 agreement. He states that the best way to get that done was with the side letter or MOU regarding the $25K to the union.
"Were you trying to keep this arrangement secret?" "No, of course not."
"One of the main roles I had in negotiating this agreement was to ensure that the 2006 terms were kept constant.....upon legal advice we understood Clean Event was able to keep those (favourable terms) on foot, but we understood the Commission (Fair Work) was going to quash those conditions...."
Stoljar points out that the "fee" for the above at that time was $20,000 - that was set out in a note to Mr Blandthorn from the AWU. Blandthorn made amendments, Mr Robinson accepted them. Ultimately Robinson produced an MOU for the AWU and Clean Event to sign incorporating the amendments Blandthorn had put forward. This was separate from the registered EBA.
In the end - you'll love this - it turns out that the "services" the AWU would provide ended up being worth not $10K, not $20K but a whopping $25K. Apparently the price for union services delivered outside an EBA and described in a secret MOU just keep going up and up and up.
Stoljar asked (in essence) did you arrange for random names of casuals to be sent to the AWU? Mr Robinson can't recall that happening. Stand by for the production of documents.
On cue emails are produced. "Did you write that?", "I write a lot of emails, I really wasn't interested in the administrative side of that negotiation."
"You were the human resources manager of the Clean Event business?" "Yes".
"Did you notice that it was just an alphabetical list that stopped at G?"
AMAZING STATEMENTS FROM A HUMAN RESOURCE MANAGER #1
"I had no interest at all in what names were on that list."
Mr Stoljar put to Mr Robinson that the entire arrangement was a sham, "Was the AWU arrangement put to Clean Event employees for approval?" The answer might have been delivered in Greek.
Mr Robinson just agreed that he negotiated a deal to pay the AWU $25,000 per year, that the agreement was unenforcable, that the so-called "members" got no benefit from it - but he just "hoped" that the AWU would be cooperative and....yeah.....just go with the good vibes of the deal.
Here's the docco
and here's the signature page on the MOU selling the workers down the river.
AT 11.53 MR STOLJAR CONCLUDED HIS EXAMINATION
One noteworthy comment from a layman (me) after 30 minutes of cross examination is that the Commissioner is assiduously applying the Practice Directions in relation to Counsel traversing ground already covered. The Commissioner has also pressed the point several times that cross examination should only cover points where the evidence of the witness is in conflict with the position taken or likely to be taken by the person for whom Counsel appears. Assiduously.
At 1248 Mr Robinson was excused.
The next witness is Mr Nayan Debnath.
Mr Debnath has made a witness statement, it has been tendered and received into evidence.
Mr Debnath is a contract cleaner who works the night shift at the Sydney Opera House. His duties include cleaning the bathrooms and the like.
He was asked if he knew his name had been forwarded to the AWU by Clean Event as a purported member of the AWU. He says that he had no idea his name had been sent to the AWU.
He was excused from the witness box at 12.54.
The next witness is another cleaner for Clean Event Ms Colleen Ellington
Ms Ellington looks like a lovely, hard working Aussie lady. She's a contract cleaner. She did not know that someone at Clean Event had given her name to the AWU as a purported member. God bless you Ms Ellington.
The next witness Ms Shalee-Nicole Allameddine - with much the same story.
AT 1.03PM Ms Allameddine was excused.
Mr Stoljar noted that the AWU is not represented at these proceedings and thus much less time than would otherwise be the case has been used.