Estrategias para el aprestamiento de la lectoescritura

20 On or about 14 October 1999 the CEPU Electrical Division Victorian Branch commenced negotiations with various persons representing NECA Victoria for the purpose of reaching agreement on a ‘pattern’ enterprise agreement for the period 2000-2003.25

21 Mighell and Mier attended all of the negotiation meetings on behalf of the CEPU Electrical Division Victorian Branch. The CEPU Electrical Division Victorian Branch was represented in the

main at the meetings by Mighell and Mier. Two other CEPU Electrical Division Victorian Branch organisers, Mr Mick Montebello and Mr Kevin Harkins, attended some of the meetings.26

22 NECA Victoria was represented at each meeting by Green, Williams, Mr Patrick Walton, the then President of NECA Victoria, and Ms Rebecca Fraser, who was employed by NECA Victoria as an employee relations advisor and industrial officer.27_{Two other persons, Mr Neville}

Palmer and Mr Norman Lancefield, attended most of the meetings representing NECA Victoria.28

23 There were between seven and ten meetings held between October and December 1999 for the purpose of negotiating the pattern agreement.29

24 At the first or second of the meetings, Mighell made plain that the CEPU Electrical Division Victorian Branch wanted the pattern EBA to include a clause requiring employers to take out an income protection insurance policy, and that such a policy must cover absence from work due to illness in addition to accident cover.30

25 Mighell informed the meeting that the CEPU Electrical Division Victorian Branch had found a policy which would provide the kind of insurance cover sought by the CEPU Electrical Division Victorian Branch.31

26 Mighell provided the meeting with documents on which was set out the key benefits to be provided under the policy. The evidence varies as to what documents were provided at the meeting. Green and Walton gave evidence that the details were written on between one and three sheets of paper.32_{Mighell gave evidence that the documents put forward comprised 18}

sheets of paper.33_{A copy of the documents which Mighell said were provided at the meeting}

was tendered as Exhibit 1710.34

27 It is nevertheless clear that whatever documents were provided by Mighell at the meeting, they were not a draft policy. They merely listed benefits to be provided under the policy proposed by the CEPU Electrical Division Victorian Branch and nowhere stated the premium payable under the proposed policy.

28 Exhibit 1710 is a copy of the ninth version of the powerpoint presentation prepared by Smith, save for the omission of the page on which was typed ‘Cost $10.75 a week for each worker for all benefits’. The cost is not shown on any of the pages which comprise Exhibit 1710. It is extraordinary that Mighell was able to produce eighteen pages of a 19 page document, but not the one page with the critical cost of $10.75 on it.

29 At this meeting,35_{Mighell stated that the premium under the proposed policy was $14.50 for}

tradesmen and $9.00 a week for apprentices.36_{Mier, who also attended the negotiations, was}

also aware that the premium quoted by IUS was $10.75 a week for each member.37

30 At one of the early meetings, Mighell said, in effect, that the CEPU Electrical Division Victorian Branch had brought the policy to the table, it was a good policy and he challenged the NECA Victoria representatives to find an equivalent or better policy.38

31 Despite efforts by Fraser and Walton, NECA Victoria was unable to source a policy offering benefits equivalent to those sought by the CEPU Electrical Division Victorian Branch.39

32 Persons representing NECA Victoria considered the premium for the proposed policy for $14.50 high.40_{Walton’s inquiries with business associates made it clear to him that a policy}

providing for the same benefits sought by the CEPU Electrical Division Victorian Branch could be obtained for a premium well below that asked for by Mighell.41_{In the time available, NECA}

Victoria was unable to obtain a firm quotation.42

33 Persons representing NECA Victoria suspected that the CEPU Electrical Division Victorian Branch was obtaining some kind of financial benefit from the policy but had no evidence on which to base the suspicion.43

34 During the meetings, persons representing NECA Victoria asked Mighell if the CEPU Electrical Division Victorian Branch was getting any financial benefit from the policy. In particular, Walton asked words to the effect, ‘[H]ow much are you getting out of this?’ Mighell avoided the question, saying in reply words to the effect,

[Y]ou blokes think we’re getting hundreds of thousands of dollars out of this. That’s all bullshit.44

35 Williams and Green also asked whether the CEPU Electrical Division Victorian Branch was receiving any financial benefit from the policy but Mighell always avoided the question,45_for

example by referring to the quality of the policy sourced by the CEPU Electrical Division Victorian Branch and saying that the CEPU Electrical Division Victorian Branch had brought it to the table.46

36 In 1999 Smith attended the offices of NECA Victoria. He gave a presentation about the intended policy to representatives of the CEPU Electrical Division Victorian Branch and NECA Victoria. Smith spoke about the benefits payable under the policy, the waiting period before benefits would be payable and the manner in which the policy would interact with workers compensation insurance.47_{The proposed premium of $14.50 for tradesmen was stated and}

acknowledged, as part of the presentation, but no question was asked by anybody about the premium.48

37 The CEPU Electrical Division Victorian Branch made clear that it would not settle the EBA negotiations except with NECA Victoria’s agreement to the policy and ultimately, NECA Victoria agreed to proceed with the policy.49 _{That agreement was formalised in a memorandum of}

agreement dated 22 December 1999 signed by Mighell and Green.50

38 At about the same time, agreement was reached upon the terms of an interim pattern agreement.51_{That pattern, or ‘template’, agreement provided, at clause 22 (page 18), that:}

The employer shall provide income protection insurance for all employees through an ETU/NECA agreed policy and scheme. It is agreed that the premium will be collected by the ETU/NECA agreed severance scheme at the same time as severance payments. It is noted that GST may be applicable to premiums.52

39 The interim agreement was agreed to by the CEPU Electrical Division Victorian Branch and NECA Victoria in order to have an agreed pattern agreement available in the industry from the commencement of the new three year period commencing 1 January 2000, notwithstanding the CEPU Electrical Division Victorian Branch and NECA Victoria had yet to agree upon

resolution of the CEPU Electrical Division Victorian Branch’s claim for a 36 hour week.53_That

issue was resolved by April 2000.54_{The final pattern or template agreement to cover the period}

1 January 2000 to 31 December 2002 retained clause 22 (providing for income protection insurance) without amendment.55

40 Part of the memorandum of agreement dated 22 December 1999, referred to in paragraph 37 above, stated:

It is hereby agreed between NECA and the ETU that the maximum premium cost to employers bound by the enterprise agreement for the full duration of the enterprise agreement is:

a. for apprentices and trainees $7.00 per week; and b. for all other employees $12.50 per week.

An additional $2.00 per week per employee will be contributed to the premium by the relevant severance funds, ElecNet and Incolink No.3 or their successor bringing the weekly premium up to $9.00 per week and $14.50 per week respectively.56

41 This agreement was subsequently implemented at a meeting of the directors of ElecNet held on 23 December 1999, attended by Williams, Mighell, Mier and Green in their capacities as directors of ElecNet. The minutes of the meeting record:

INSURANCE

New insurance arrangements under enterprise agreements have been negotiated which have implications for ElecNet. Under those enterprise agreements employers will make an insurance premium contribution of $12.50 per week and $7.00 per week in the case of apprentices.

It was resolved that an additional $2.00 per week per employee will be contributed to the premium by ElecNet bringing the weekly premium up to $14.50 per week and $9.00 per week respectively.57

42 The intention was that the $2.00 subsidy a week for each person insured would be drawn from the net earnings of the investment of the Protect fund.58

43 From that point, if not earlier, Mighell knew that the CEPU Electrical Division Victorian Branch would make a profit of $3.75 a week for every tradesman, and $1.50 a week for every apprentice, subsequently insured under the policy.59

44 A draft policy was not provided by the CEPU Electrical Division Victorian Branch until subsequent to NECA Victoria agreeing to the policy proposed by the CEPU Electrical Division Victorian Branch.60_{This agreement occurred in late 1999.}61

45 The draft policy produced by the CEPU Electrical Division Victorian Branch identified the CEPU Electrical Division Victorian Branch as the insured under the policy. Green did not consider this to be appropriate and insisted that the insured be ElecNet. Mighell agreed to that proposal.62

46 Mighell knew in a general sense that, as a director of ElecNet, if he was in any way directly or indirectly interested in a contract or proposed contract with ElecNet, he had an obligation to declare the nature of that interest at a meeting of directors as soon as practicable after the relevant events had come to his knowledge.64_{No such declaration by Mighell is recorded in}

any minutes of any meeting of the board of directors of ElecNet.65_{On the material before me, I}

am satisfied no declaration of the interest of the CEPU Electrical Division Victorian Branch, of which he was Secretary, was made at this meeting.

January 2000

47 Employer members of NECA Victoria began signing certified agreements with the CEPU Electrical Division Victorian Branch, in terms of the pattern agreement, during the first two weeks of January 2000.66

48 It appears that the CEPU Electrical Division Victorian Branch informed Smith that it wished to vary the proposed insurance policy to increase the extended cover provision such that coverage under the policy would continue for a period of 39 weeks, rather than 31 days, from the date that an insured person ceased his or her current employment with their employer provided the insured person had accepted a position with another employer prior to ceasing their employment with his or her initial employer. This provision, in its initial form, appeared on page 12 of an earlier draft policy.67

49 By facsimile dated 4 January 2000 Smith wrote to Power informing him that he had amended the policy to allow for an extended cover of 39 weeks and of the text of the amended clause. Smith also informed him:

The additional cost for this is $0.10¢ per week for trades men (sic) and (if required) $0.05¢ per week for apprentices. This would bring the costs to $10.85 for tradesmen and $7.55 per week for apprentices.68

50 Power had been present at the meeting of the board of directors of ElecNet held 12 days earlier (on 23 December 1999) at which the meeting noted that the premiums for the policy would be $14.50 for tradesmen and $9.00 for apprentices.69

51 A few days later, Smith, Mighell and Power and perhaps Mier, met to discuss the proposed change to the policy and, in particular, the proposed increases in the premiums for tradesmen and apprentices. The CEPU Electrical Division Victorian Branch wanted to increase the extended cover to 39 weeks, and also to retain the premium at $10.75 for tradesmen and $7.50 for apprentices.70

52 Someone representing the CEPU Electrical Division Victorian Branch said words to the effect that the union already provided a funeral benefit for its members and asked if that benefit was taken out of the policy, would that keep the premium down. Smith calculated that the absence of that benefit reasonably offset the increased cover from a maximum of 31 days to a maximum of 39 weeks. Smith agreed to that proposal and the premiums remaining at $10.75 and $7.50.71 _{The deletion of the $5000 benefit for ‘death by any cause’ and the increase in}

extended cover from 31 days to 39 weeks is reflected in the subsequent draft policy prepared by Smith.72