C3558/200, Transcript of Proceedings [2001] AIRCTrans 350 (23 March 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C NO 35582 OF 2000

CPSU

AND

AAPT COMA PTY LIMITED
AND OTHERS

NOTIFICATION PURSUANT TO SECTION 99
OF THE ACT OF A DISPUTE RE LOG OF
CLAIMS

SYDNEY

9.37 AM, TUESDAY, 6 MARCH 2001

CONTINUED FROM 5.3.01

HEARING CONTINUING

PN1194

THE COMMISSIONER: Right, Mr Jones is it? I think you're under your previous oath.

<STEPHEN PATRICK JONES, ON FORMER OATH [9.37am]

<CROSS-EXAMINATION BY MR PARRY

PN1195

MR PARRY: Do you have a copy of your statement in front of you?---Yes, I do.

PN1196

You say in that statement that you had been directly employed by the CPSU and its antecedents since 1993?---That's correct.

PN1197

To what antecedents to you refer there?---The PSU group of the CPSU, I joined the CPSU just after the - well actually it was almost about the same time Frank, as the amalgamation with the PREIA.

PN1198

And before working or before joining the PSU group of the CPSU, where did you work?---I worked in the public sector for about 10 minutes, and prior to that I was - I worked there for a couple of weeks, and prior to that I worked in - with another union, the Finance Sector Union of Australia.

PN1199

And you have described here the rules of the CPSU, and you've set out in the earlier parts of your statement, paragraphs 3, 4 and 5, the various amalgamations that led to the creation of the CPSU, and paragraph 6 refers to the industry and eligibility rules of the CPSU reflecting the rules of the amalgamating organisations?---That's correct.

PN1200

You go on and at the end of that sentence say, "These groups reflect the pre-amalgamation representation rights of the union". Now you're not suggesting that somehow the amalgamation of the various eligibility rules have created any rights beyond those that were pre-amalgamation rights are you?---I'm not sure I understand the question, Mr Parry, I'll attempt to answer it if - - -

PN1201

I'll rephrase it. In this particular case, relevantly we're looking at the rules of the CPSU as they now stand, they came about as a result of amalgamation of various organisations that you've set out there, and what I'm asking you is, it's the position of the CPSU, that the rules represent the rights of each of those unions that are now in one organisation?---I think that's right, the reason I'm a bit hesitant about saying unqualified yes, is because as with most of these unions operating within that sector, they had demarcation orders against and in favour of each other. So for example, you might have had in the old days, COA, an exclusion for example for professional officers or professional engineers, in its rule, and that appears in rule 4A(2) as I recall it, the CPSU Industry and Eligibility Rule. Obviously when it - that was an exclusion in favour of the POA, as it then was, obviously when the POA amalgamated with the then Australian Public Sector and Broadcasting Union, in effect that exclusion within the ATOA rule became a nullity in the context of the amalgamated rule, and the amalgamated organisation of doing otherwise, when the POA was amalgamating with the ACOA, they would have been required to lose their members and their eligibility to cover their members upon amalgamating with the union. So that's why I hesitate to answer your question, but I think, Mr Parry, I've answered the question.

PN1202

Well perhaps in answering that question you've particularly raised the position of professional engineers?---Yes.

PN1203

That remains a group that is referred to in the rules as being exempted from eligibility in one part of the rule?---And included in another.

PN1204

We accept that they're exempt in one part of the rule?---There is an exemption in rule A1, you've probably got it in front of you Mr Parry - sorry in rule A2, I think it's at (iii) part F, I'm not sure, that it excludes in favour of - - -

PN1205

MS JONES: It might help if Mr Jones - do you have a copy of all the rules in front of you?---No, I don't. Is there a spare copy on that side of the table?

PN1206

MR PARRY: Of what, the rules?

PN1207

MS JONES: The rules, well we're asking Mr Jones to talk about the rules and he doesn't have them in front of him.

PN1208

THE WITNESS: Actually I have a copy of the new certified copy of the rule, I'm aware of where the changes are, so I can probably work off that. I was referring to part 1, which is the constitution and eligibility rules of the CPSU, sub-rule A2, (ii), Q, that was a demarcation - that part of the rule reflects the old ACOA rule, if I can use that - the Administrative and Clerical Officers Association Commonwealth Employment Rule. Sub-paragraph Q, there was a demarcation, that was included in the old ACOA rule, in favour of the Professional Officers Association as too does B, in fact you can't make sense of B, unless it's read in the context of the ACOA, the public sector and the demarcation agreements that existed between the ACOA and the POA, representing the third and fourth - sorry the second and first division officers as they then were. So if you look at - if you cross-reference that with sub-rule B, you'll see what is taken out is put back in again, upon amalgamation of the POA.

PN1209

MR PARRY: So, if I can understand what you're saying, that is, I think you've agreed with my proposition that the rules of the CPSU reflect the pre-amalgamation rights of each of them, but you say professional engineers get in, because of the POA amalgamation?---It would be more true to say, I'm trying to answer the question now, Mr Parry, the way I would put it was, where there were demarcations that existed between and in favour of each of the amalgamating parts of the union, they cancelled each other out, upon amalgamation, and in the case of the PREIA appointed to amalgamation, it also cancelled out other exclusions within the rule, because the PREIA rule is not limited by any of the other rules, or most of the other rules contained in that part of the CPSU rule.

PN1210

That's very much part of your case in these proceedings isn't it, to get the rules for PREIA to cancel out various exclusions?---It certainly has a bearing on the case, yes.

PN1211

Well it's a very large part of this case, isn't it?---In relation to - in relation to some employees who are performing technical functions in the telecommunications industry, yes it is.

PN1212

Because the CPSU within Telstra, wasn't a union that covered technical classifications?---No, that's not correct, Mr Parry, the CPSU, when it became the CPSU, and when Telstra became Telstra, it certainly was a union that covered technical classifications. Prior to - what is true to say is that prior to the amalgamation with the PREIA, the then PSU did not have coverage of technical classifications within Telecom, that is true.

PN1213

The only time that you have been required to apply and interpret the PREIA rule was once it became part of the CPSU rules?---That's certainly the case - yes that's certainly the case.

PN1214

Now to deal with that, your statement goes on in paragraph 8 and refers to the CPSU targeting certain sections of the communications industry as priority areas for organising?---Yes.

PN1215

In broadcasting, we have traditionally represented members in public, private and community sectors of this industry?---Mm.

PN1216

Now the representation in the private sector, presumably that you refer to there, is the PREIA representation?---Yes, it is and I think further in the statement I include a copy of one award we have in that industry.

PN1217

On paragraph 9, you refer to intelecommunications, traditionally covering call centre, admin, professional and IT workers in Telstra?---Correct.

PN1218

And that is the traditional coverages you would say within Telstra?---I prefer if we could on this to use the name Telecom, because once, at the point in time when that organisation became known as Telstra, the PSU was then amalgamated with the PREIA, so that statement would not be correct. But when it was known as Telecom, yes, we had traditionally covered the call centre, administrative, professional information technology workers, that's correct.

PN1219

You did not cover technical staff?---Prior to the amalgamation with PREIA, no, we did not.

PN1220

Indeed you did not cover external plant staff?---The term is a little bit imprecise, Mr Parry. I think I can agree with you - the term is imprecise - there are some people for example who might be defined, if we are not using that as a term of art. If I could use the example of material distributions officers and people working in warehousing and those sorts of things. They were working in relation to external plant so were many of the clerical and administrative and IT functions, so, yes to that extent we were working - we did cover people who worked in relation to external plant. But not the technical people when it was in Telecom and when we were the ACOA.

PN1221

And not the people performing the physical external plant work?---By which you mean?

PN1222

The operating of machinery?---What sort of machinery?

PN1223

Digging machinery?---No.

PN1224

And cabling machinery?---What sort of cabling machinery?

PN1225

Trucks that have big cables on the back for inserting beside roads and on towers?---With the big wheels on the back laying the cable, hauling the cable?

PN1226

That's right?---No, we did not.

PN1227

And the technical employees that worked on switching, you didn't cover those?---In Telecom?

PN1228

Telecom?---No, we did not. Those employees, if I could be more precise - those employees classified as technical officers or falling within the technical officer classification within Telstra, no we did not, we did not cover those. There were some clerical people who were actually performing those functions who we did cover, but not the persons classified as technical officers.

PN1229

THE COMMISSIONER: Would you refresh my memory. The approach was not to define work, but to name classification, was it?---The approach in the rules?

PN1230

Yes?---The approach in the rules was to describe a calling, not a classification. Actual type of work and type of apparatus that we use.

PN1231

I must be confused with something else. Thank you.

PN1232

MR PARRY: If you are confused at the beginning of day 3, I feel sorry for you.

PN1233

THE COMMISSIONER: It will all become clear in final submissions, I presume.

PN1234

MR PARRY: I am sure we'll all be endeavouring to make it clearer.

PN1235

Mr Jones, still at paragraph 9?---Yes.

PN1236

When you refer to traditionally covering professional workers in Telecom as I think you've said, that was through the POA arm?---Telecom, yes it was. Can we be a bit more precise about that term - professional covers a - there is in Telecom at the time - it actually had a classification known as professional officer, and yes, the Professional Officers Association covered that classification. Just because you had a degree, that doesn't mean - just because you might have been a member of a professional association such as the Engineers Institute or the like, that didn't mean that you were working in an occupation performing those functions. That was quite common throughout Telecom and the Public Service, that people might have a qualification and be a member of a professional association, but not working in that function.

PN1237

Well professional engineers and professional scientists within Telstra were certainly within the coverage of APESMA, weren't they?---When it became APESMA, scientists were, they were also within the cover of the POA and the CPSU. Yes, both of those things are correct.

PN1238

If we can accept that the PSU group which you originally joined - does your statement say when the merger with the POA occurred?---No, it doesn't, Mr Parry. It was prior to 1990 - sometime - I am a bit hazy on this, I think it was about 1990, 1991.

PN1239

Prior to the merger of the POA, the PSU group did not cover professional workers?---No, it did not cover people who were working in the professional officer classification.

PN1240

Those people could be either members of the POA on your evidence or APESMA?---Professional Engineers as it was in those days, yes.

PN1241

Leaving aside the first part of your statement in paragraph 9 which you say refers to Telecom, it then goes on and refers to technical and administrative staff in the former OTC?---Mm.

PN1242

That coverage was PREIA coverage?---Correct.

PN1243

Because, I think by the time the merger with the PREIA came around, the OTC had become part of Telecom generally?---Mr Puzniak I think gave evidence on the exact date. If my memory serves me correctly, it was on or around February 1992 that OTC and Telstra formally became - formally merged. I think that was the operative date, and the PREIA - yes, so what you are saying is correct. The PREIA - the operative date of amalgamation with the PREIA and the then PSU was from memory, it was February 1993.

PN1244

You go on in paragraph 9 and say the CPSU also had coverage, technical, professional, administrative and clerical employees at AUSSAT. Now that was PREIA that had that coverage, correct?---The ACOA also had coverage of employees within AUSSAT, and the then PSU - yes it was the ACOA at that stage, as probably did the APSA.

PN1245

I am particularly curious there as to your reference to professional and clerical employees at AUSSAT?---Yes, I could perhaps best explain that by reference to SJ2 which is an award - it's the PREIA ACOA - forgive me - OTC award - I'll get it yet. And at clause 6 of that award you will see Mr Parry, a range of classifications.

PN1246

Yes, I've seen that, but I'm not asking about what might be contained in a consent award, between the PREIA and OTC?---Well you will note on the 1,2, 3rd page in of those classifications, there is a classification under the heading, Engineers group, including engineer grade 2 and engineer 1. These were classifications covered by the PREIA within the ATC

PN1247

Leave aside the award. Is it your position that the PREIA covered professional and clerical employees at AUSSAT?---Its coverage included that. If I could just say - the term professional again in the PREIA was the Professional Radio and Electronics Institute. It's not the precise term of art. They certainly covered engineers and people performing engineering functions within AUSSAT. So it is probably more precise for people who bore the classification engineer and people performing engineering functions within AUSSAT, that's not the same thing as to say - if that's what you mean by professionals, yes.

PN1248

Well I suppose I am dealing with your statement which refers to professionals?---Yes, okay, that's what I mean by that Mr Parry.

PN1249

And it's your position also that the PREIA has coverage of clerical employees at AUSSAT?---Some clerical employees, yes. Those clerical employees who are involved in accounts and rates functions, yes we certainly did billing type and accounting, those sort of office type clerical and administrative functions, yes.

PN1250

Obviously you never worked for AUSSAT and you never worked with the PREIA rules?---No.

PN1251

Can I take it that your opinions there derived from reading the rules and looking at the award?---And instructions I'd received from other officials who did work with the PREIA, and did organise members in AUSSAT, yes.

PN1252

I see. What were those officials names?---Adrian O'Connell, principally, who is the secretary, my boss, if you like. He was a PREIA assistant secretary and responsible at the time for the corporation AUSSAT.

PN1253

He is still employed by the CPSU isn't he?---Yes, he is. He's my boss.

PN1254

So your views there, derive from your reading of the PREIA rules?---Correct.

PN1255

Your looking at the OTC award and what Mr O'Connell has told you?---Are we talking about AUSSAT or OTC?

PN1256

AUSSAT, I'm sorry?---Yes, okay. AUSSAT. Yes.

PN1257

And is it the same with OTC, that's where your information comes from, looking at the award, looking at the rules and discussions with Mr O'Connell?---No, also discussions with the employees who were - the technical employees who are now working within Telstra who came to Telstra with the amalgamation or the merger of the OTC and Telecom, and my involvement in other matters in the union I should say. Such as the one Telstra - an award variation matter.

PN1258

Your statement in dealing with Telecom and Telstra. Let's just look at Telstra nowadays, as of March 2001 in light of your rules. You wouldn't suggest you cover all employees of Telstra, would you?---Never thought about it like that, Frank. Whether we had the capacity - are you asking me whether we have the capacity to, or whether we actually do.

PN1259

Firstly, do you have a view on whether you actually do?---No, I don't have a view on whether we actually do. Certainly it is true to say that - it would be silly of me to say otherwise that don't actually have members in all the areas of the business of Telstra. That would be silly of me to claim that we did. Whether we potentially could is another question under our rules, which I've never considered.

PN1260

Traditionally there are a number of areas you don't cover?---Well the reason I am a bit cautious in answering that question, if I could work as - I'd have to look at, for example, the PREIA rule and its application to particular work that was performed within Telstra at any given area, it's pretty difficult to - the nature of the rule makes it hard to say, well, you know, it does or doesn't cover a broad area. Because it relates to specific callings, you would have to look at the specific work that was being performed to say whether we had coverage of it. That's why I'm a bit cautious. It's easier for me to make - to answer your question, if you put that rule aside and ask me about the rest of the rules within the CPSU, I could answer that question.

PN1261

Yes, but I think I asked you about coverage at Telstra, and I think your answer was that you would need to look at the callings described in the PREIA rule and link them up to the work performed at Telstra to make an assessment of that?---Yes, yes.

PN1262

You refer in your statement in 1993 to a section 118A order made excluding the CPSU from Optus employees?---Yes.

PN1263

Given that you joined around that time, were you involved in those comings and going and deals that were being made around that time?---No, I was not.

PN1264

You refer to the section 118 order in Optus being made and the PSU altering its rules. You say to allow it to cover non Optus entrants to the industry. Are you there referring to the proceedings that took place before Deputy President Williams as he was?---Sorry, where particularly in my statement are you referring to?

PN1265

Paragraph 10?---Okay. Yes, yes, I am.

PN1266

Are you aware of the time that the application was made by the PSU as it was to the Commission referred to continuing to cover traditional areas of coverage at Telstra, follow those traditional areas outside into the private sector?---I don't understand the question?

PN1267

I'm sorry, it's inelegantly worded. You have no doubt read the decision of Deputy President Williams?---Yes, I have.

PN1268

He sets out there the purpose of the rule change was to paraphrase it that:

PN1269

To extend the PSUs coverage to the private sector telecommunications industry work of a kind traditionally covered by the PSU in the public sector telecommunications industry.

PN1270

Do you recall that?---I recall reading that. I don't have a copy of the decision in front of me, Mr Parry.

PN1271

Well, I am happy to give you a copy of the decision. I think you will find it, it's at the bottom of page 8?---It sounds right but - - -

PN1272

Yes, what I'm interested in?---Yes, you're talking about the paragraph beginning:

PN1273

The PSUs original application.

PN1274

Yes?---Yes.

PN1275

Therein there is reference to pursuing PSUs coverage to work of a kind traditionally covered by the PSU in the public sector telecommunications industry, right?---Which paragraph are talking - I mean it sounds right if anything turns on it, it sounds right. If you're asking me to direct my attention to a particular paragraph?

PN1276

No, I'm not asking you to and I'm certainly not trying to trick or fool you. I'll put up a sign when I'm going to do that. It says, trick question?---Thank you, Mr Parry.

PN1277

I'm trying to identify whether you have any particular view as to what the PSUs traditional coverage was in the public sector telecommunications industry and you've given answers today and what I'm going to suggest to you is that the work traditionally covered by the PSU in the public sector telecommunications industry was the administrative white collar semi professional work that was done at Telecom?---I think the way that Mr Robson actually stated it, reading the transcript of that and I'm working off my memory here. There is some transcript in the court room today if that ever becomes necessary. But my recollection is that what Mr Robson said in evidence is that the types of work we traditionally covered were clerical, administrative, information technology type functions. I think he also mentioned engineering functions as well, Mr Parry, but I am a little hazy on that. But certainly he said, clerical, administrative, information technology workers.

PN1278

I don't think he mentioned engineering that's all, I think he mentioned certainly the other three, but I don't recall on reading that material, that he mentioned engineering?---I'm sure - - -

PN1279

You don't remember him mentioning engineering?---I'm sure we'll all find out sooner or later.

PN1280

Perhaps if I could have that decision back?---Yes.

PN1281

I think as you said earlier, you weren't particularly involved in the processes that led to that rule change?---I wasn't involved in the ACTU processes, I was involved internally, but I wasn't involved in any of the ACTU discussions etcetera, no.

PN1282

Now, you go on in your statement and refer to, in January 2000 establishing a communication section, within the union to focus on the communications industry?---Yes.

PN1283

As I read further parts of your statement, it seems to be the position that the communications industry covered broadcasting?---No, broadcasting is one element of the communications industry, broadcasting and telecommunications, and those areas of the information technology industry, which directly relate to telecommunications and broadcasting.

PN1284

Presumably there was a section which included broadcasting within the union after the amalgamation in 1993?---The way - there was the ABC section of the union, it still exists as a separate section - separate from, although there are discussions and plans on foot to merge it with the communications section of the union, but in 1993, broadcasting formed part of what was then known as the technical communications and aviation section, within the union, which when merged with the telecommunications section of the union, became the communications section of the union, if that makes sense. So public sector broadcasting was traditionally covered largely by the ABC section and organisers within the union looking after SBS and the Australian Film and Television School and those sorts of organisations. Private sector broadcasting was looked after principally in what became the TCA section of the union, which was the old PREIA.

PN1285

So after the merger in 1993 there was a section that continued to look after the PREIAs traditional areas of coverage?---More or less, yes?

PN1286

I think you called that the Technical Communications Aviation Section?---Correct, yes.

PN1287

Now, at that time the traditional areas of PREIAs coverage were in aviation, maritime, broadcasting - would you accept that?---It's not an exclusive list but - - -

PN1288

What other areas?---Telecommunications and communications generally, technical functions within the Bureau of Meteorology, technical and communications functions within the Department of Defence, persons employed in the Spectrum Management Authority which is now part of the Australian Communications Authority, persons employed in Austel which was an industry regulation function back then, persons employed in airports and the aviation industry, persons employed in telecommunications, satellite communications and radio telecommunications. Could you read that list back to me, Frank - Mr Parry, sorry - just to make sure.

PN1289

I started off saying the traditional area of PREIA coverage, and I said aviation, I think, maritime - - - ?---In the aviation industry, we actually separate aviation into the regulators, the people who own and manage the airports and the people who own and run the aeroplanes. We don't have a large area of recoverage but we have traditionally had areas of coverage in people who build and design aeroplanes, technical employees worked in that area. So people like British Aerospace, for example, might be an example. That would be in the aviation. The next one was?

PN1290

Maritime?---Maritime, okay. In the maritime industry we have traditionally looked after radio and communications and safety type officers, doing ship to shore type communications functions on both ends of things. People employed in the Maritime Safety Authority again doing and utilising communications devices, and people developing policy for those persons who - people developing policy around maritime safety issues. I'm sorry, is the question limited to the PREIA rule here?

PN1291

Yes, I was only interested in the traditional coverage of the PREIA?---What I say is correct in relation to that, then. In maritime there was actually more, but - - -

PN1292

Within those various groups that you have described, to identify PREIA coverage you would need to make an assessment of the calling of the particular employee, and see whether it fits within the radio and electronics rule?---Yes, essentially that's correct.

PN1293

With regard to those, the majority are either government or statutory instrumentalities?---At what point in time?

PN1294

As of now?---I can't answer that question as of now, because various bits of the union's coverage have been brought into one. I can say that as of inception, at the time the PREIA was formed in 1916, it wasn't a public service union. In fact, there were a number of disputes between the PREIA and the then Public Service Arbitrator and the Public Service Board to get recognition, and a number of times we weren't recognised or the union wasn't recognised as a public service union because we weren't operating in the public service. That was when we were operating in ship to shore maritime radio, in telegraphy and in the AWA company. We weren't considered to be a public service organisation for the purpose of the Public Service arbitration legislation at the time with the Public Service Board. That subsequently changed in or around 1921 or 1922, I think. The coverage of the union, the PREIA as I understand it, has waxed and waned. It would be true to say that at any given time around about 70 per cent of the PREIA's membership had operated in government or semi-government instrumentalities by virtue of the fact that that those instrumentalities held a monopoly on performing the sorts of work into which the PREIA's calling fell.

PN1295

When you refer to the monopoly on the sorts of work, there you are referring to, for example, ship to shore radio?---At various points in time, that monopoly no longer exists but at various points in time, yes.

PN1296

And various, as you say, the callings, the operation of radios on ships, in defence, airports, on planes. Those are the sort of traditional areas?---They were all tightly regulated by - most of that stuff was tightly regulated by various statutes and legislation which licensed persons and organisations which could perform those functions.

PN1297

The use of radio in as I said planes from boats in defence that sort of general area, isn't it?---Except at the very beginning, Mr Parry, when it was performed by non Government companies. In the very beginning it wasn't a Government function. But those functions after around about 1917-1918, probably closer to 1920 did become part of tightly regulated Government monopoly, yes. The same is not true of broadcasting for example but it's certainly true of those functions that you've mentioned, or those areas you've mentioned.

PN1298

With respect to cable that was certainly the focus of the PREIA was in areas of international cables, wasn't it?---Not at first but certainly once the OTC was formed, yes, in 1947, that's true.

PN1299

Now, in your researches have you found any changes to the rules of the PREIA since it was formed I think as you say in 1917 or 1921. I'm sorry, I'm not sure when you said it was formed, perhaps you didn't?---I did, I think it's actually in my statement, Mr Parry, 1916, at paragraph 16 of my statement.

PN1300

Have you found any changes to the rules?---There have been numerous changes to the rules over the period of time, yes.

PN1301

The most recent one?---Perhaps you can refresh?

PN1302

I don't know, I'm asking you?---There was a change to the industry and eligibility rule, sorry the industry rule in the 70s or 80s. I couldn't give you a more precise date than that, it would be true to say that there haven't been in the last 15 or 20 years of the PREIAs rules, many changes.

PN1303

Many or any?---Any. With the exception that I've mentioned of the industry changing the name in connection with the industry in which the union was registered.

PN1304

Do you know what that change was?---Off the top of my head, no, I couldn't tell you, Mr Parry.

PN1305

Now, I think in the answer that you gave to me earlier you referred to the coverage in telecommunications of the PREIA and perhaps I'll return to that and I'll deal with your statement in sequence. So in January 2000 you established a communications section?---Yes.

PN1306

So between 1993 and January 2000 anything that was to be dealt with within the communications industry was either dealt with by the PREIA area or by the PSU CPSU traditional coverage in Telstra?---No, that's not correct.

PN1307

Right, where else?---It might have been dealt with through the ABC section of the union.

PN1308

Right the ABC, what else?---When you talk about the PSU traditional areas, what precisely do you mean by that because I'm not sure?

PN1309

PSU traditional areas in Telstra?---I think the question you asked me if I recall, is where was the work organised and telecommunications work was organised in both the telecommunications section of the union of which I was the secretary for some time and the technical communications and aviation section of the union. Broadcasting work was done both within - can I use the notations TCA?

PN1310

Yes?---Technical Communications and Aviation. Broadcasting was done within the TCA section and generally by branches or by the ABC section of the union. There was in areas like defence for example that was done both by the branches of the union and the TCA section. TCA looking after specific callings of employees within the Department of Defence. I think that answers your question.

PN1311

Right, so with regard to the telecommunications section of the union up until January 2000, I suggest that that focused on Telstra?---Up until January 2000 it was certainly the principal focus of our activity, it wasn't the exclusive focus of our activity. For example during that time we organised and made certified agreements with companies such as IBM, Global Services Australia, Advantra, which were joint ventures that Telstra had formed. We also were organising and engaged in industrial activity in a company called, Pacific Access. Also towards the end of that period we started organising and recruiting members in private sector, or non Government telecommunications areas. Some of which are subject to these proceedings.

PN1312

I think the companies you mention, IBM, Global Services, Advantra and Pacific Access, all had significant interests in them by Telstra?---That's correct, yes.

PN1313

Indeed in each of those cases the CPSU were seeking to follow the work as it were from Telstra?---And extend our areas of representation into those other areas, yes.

PN1314

Well, I suggest to you that in each of those three companies you've mentioned you were following the work that you saw had been performed at Telstra?---There's no doubt that that was the case, Mr Parry, no doubt.

PN1315

With regard to the private sector?---Yes.

PN1316

You were pursuing membership in the private sector?---Yes, the reason that - well, one of the motivations behind merging both the telecommunications section and the technical communications and aviation section of the union was to pull the expertise and resources to make it a more efficient way of organising in an area that seemed to us ludicrous that we should have as is sometimes the case with other organisations, two officials from the one union going attending the one meeting to represent the same unions members. So we made a decision to merge and become a more efficient way of organising and to pull the expertise and working in essentially private sector areas of the economy. An area which it would be fair to say that the PSU and CPSU hasn't always organised. So to focus on those rules of the union which allowed us private sector coverage and coverage in certain callings within the private sector to collect the expertise within a union of people who knew something about it. So I mention 1 January 2000. We were actually working towards that for 12 months or 18 months prior to that. But that was the date and that was the motivation behind setting up that section within the union.

PN1317

All right, but you then go on in your statement under this, after referring to setting up this communications section, you refer apparently to the work that's done in this sector. What's been done in this sector, certified agreements in the television industry?---Yes.

PN1318

That's in the industry of what's called broadcasting?---Correct, yes.

PN1319

It's an area where the PREIA has had coverage for a long period of time?---Correct, yes.

PN1320

And in your final - - -

PN1321

THE COMMISSIONER: Mr Parry, sorry to interrupt you. We might take a short break so that I can get my chair repaired.

SHORT ADJOURNMENT [10.30am]

RESUMES [10.42am]

PN1322

THE COMMISSIONER: We're right now.

PN1323

MR PARRY: If the Commission pleases. Mr Jones, perhaps to move on in your statement. You then have a part under the heading, CPSU Industry and Eligibility Rules. You refer to your experience and research in the telecommunications industry and that is your experience since 1993. Your discussions with Mr Campbell and a few others that you have referred to and you're looking at certain award?---Mr O'Connell, yes - - -

PN1324

I'm sorry. I'm not sure what I called him. Mr O'Connell?---I'm sure he takes no offence. My research and writing of papers and advice is also on the industry regulation, the impact of industry regulation on CPSU areas of coverage and numerous other matters before the Commission and other places.

PN1325

I am interested in that context in paragraph 16 and you have given some evidence about the formation of the PREIA. What is the expansion of the eligibility rule you refer to there?---Yes, okay, the PREIA the dates I don't have exactly but the PREIA originally was a union which was formed by maritime communications officers to do ship to shore communications with the development of wireless technology and cable technology. It expanded its areas of coverage and with the development of industries in Australia which are based around developed and supplied and deployed and use those technologies. The PREIA developed and change on a number of occasions its eligibility rules to expand its coverage in those areas.

PN1326

Right, but there is no particular expansion that you are referring to there?---Well, if you were to go to the rule in 1916 I think it would stop somewhere around about "all persons engaged or employed in the utilisation of radio apparatus for radio signals" etcetera, etcetera, words to that effect. It was certainly not as extensive as it is now. I don't have the exact form in front of me. Perhaps you do, Mr Parry and you can show me.

PN1327

No, I don't have the 1916 rules. Have you seen them?---I have seen, yes, I have seen them.

PN1328

They make reference to certain callings, as it were, back in 1916?---Yes.

PN1329

Now, the reference to becoming a major union representing telecommunications employees in both private and public sectors, is the telecommunications employees in the private sectors to which you refer employees in certain callings in television, radio broadcasting, aviation flight safety and aerospace?---Yes, it includes those employees.

PN1330

I am interested in whether there is any other private sector telecommunications which PREIA were involved in?---Sorry, could you go through the list again for me, Mr Parry.

PN1331

Your statement refers - - -?---Yes, I understand what you are referring to. I just wanted to make sure that you, I wanted to hear again the list that you read out.

PN1332

Television, radio broadcasting, aviation, flight safety and aerospace?---I think that would be a fair description, yes.

PN1333

What I am suggesting to you is, when you refer to private sector telecommunications you are referring to people in callings in television, radio broadcasting, aviation, flight safety or aerospace?---Look, that is obvious, you know, because in Australia private sector telecommunications really didn't exist after or certainly internally after the mid 1920s, between the mid 1920s and certainly there was some deregulation of it between 1975 and 1989 but principally not so and for the major part of the last century telecommunications outside of those areas that you have listed was the monopoly of Telstra, the OTC and AUSSAT.

PN1334

I think you go on and speak about the rule being a different rule and having its origins. You say in paragraph 18:

PN1335

The PRA rule is designed as a craft rule

PN1336

and you refer to

PN1337

PREIA is able to represent the industrial interests of employees in OTC or was able ...(reads)... AUSSAT and the Department of Communications and Aviation.

PN1338

Can we accept that it was able to represent the industrial interests of employees in those callings described in its rules in those organisations?---Axiomatically, yes.

PN1339

You set out the rule in part on which you rely - the radio cable and electronics rule - do you have a - - -?---Can I just say that there is an error in the notation of the rule that is included there at that paragraph 19 which I have only recently picked up I must say.

PN1340

What is that error?---Well, if you see, let me just check that. After the words on the sixth line down you see the words "land, sea and air"?

PN1341

Yes?---There should be inserted after the words "land, sea and air" and before the words "and all radio engineers", "and shall include all persons engaged or employed as" and there's a, yes, there's a paragraph there that inadvertently has been removed. A word processing error no doubt.

PN1342

I think the full rule appears in attachment to exhibit J1 which were originally filed in these proceedings?---I do have a copy of the full part of that rule in front of me.

PN1343

Right so after the sixth line there's a paragraph missing - - -?---Yes.

PN1344

- - - and that paragraph deals with marine - it talks about including people engaged in marine radio work?---Yes. It starts with the word "and shall include", yes.

PN1345

It also specifically refers to certain callings on broadcasting stations, doesn't it?---Yes, it does.

PN1346

And it refers to certain callings in air radio stations?---Yes, it does.

PN1347

Do you know what air radio stations are?---Yes, stations that are designed to transmit signals, as I understand it, between the ground and aeroplanes for communication purposes.

PN1348

Right, so that's the aviation radio systems?---Principally, yes.

PN1349

And there's also coastal radio classifications as well?---Yes.

PN1350

And then we return to your particular - there's a paragraph that goes in there and I think you also omit, in paragraph 19 the last part of - after the words "Islands of the pacific" there's another part of your rule which refers to meteorology, radio officers engaged on aircraft and instructors in radio schools and so forth?---Yes.

PN1351

And the final part of the rule there, as set out, provided that:

PN1352

Nothing herein shall be taken as covering employees engaged in the manufacture of radio apparatus or pertinent elements or in the maintenance installing and/or servicing of radio elsewhere than in transmitting, receiving aviation radio service depots and/or telegraphic or cable stations not including the fabrication or erection of masts

PN1353

and so forth?---Yes.

PN1354

Now I think, when you were giving evidence the other day, you said that that rule somehow was related to AWA?---It's certainly an exclusion in favour of the electrical trades union.

PN1355

Yes and can we accept that it does not say anything about AWA or anything about exclusion of the coverage of the Electrical Trades Union?---I can say that if it's also taken with a caveat that the context in which that was included there was a, as I understand it, a demarcation issue in AWA, yes but I can't dispute the words that it says, Mr Parry.

PN1356

No and the words themselves you will accept are fairly broad exclusionary words, aren't they?---I accept what the words say, Mr Parry.

PN1357

Yes. You see if one looks at the words that appear above that in the actual rule when it refers to telegraphic or radio stations in the other part of the rule above it refers to telegraphic or cable stations essentially operated by OTC?---Mm.

PN1358

You accept that?---No it doesn't say that. The references to OTC are examples of the types of callings that might fall within the broad general callings in the first part of the rule.

PN1359

The rule identifies certain callings which the drafters of the rules have considered appropriate to give flesh to the sort of earlier parts of the rule?---Yes. I am hopeless with metaphors, Mr Parry but that sounds about right.

PN1360

You go on, in paragraph 20 and say:

PN1361

The PREIA traditionally relied on this rule to represent employees in the communications and telecommunications industry.

PN1362

Again, you use the word there "telecommunications industry" in the context of the PREIA to refer to the employees in television, radio, broadcasting, aviation flight safety and aerospace?---And the OTC and AUSSAT.

PN1363

All right, we add in OTC and AUSSAT, that's fine but that's what you're referring to there?---I say the word "traditionally", do I not?

PN1364

Yes?---It's traditional, yes that's correct because for the period of time when the PREIA - the majority of that period the supply of those services was a government monopoly or was occurring in those other areas, yes so that's correct.

PN1365

You've gone on and dealt with examples of classifications traditionally covered by the CPSU and PREIA?---Yes.

PN1366

Now you've dealt firstly with commercial radio. I think we can accept that part of the rule that does not appear in your document specifically deals with classifications of certain employees engaged on broadcasting stations?---Yes.

PN1367

So your rules, in that context, specifically refer to certain callings in commercial radio industry?---Yes. When we use the word "calling" we're talking about persons utilising operating control, maintaining, installing, inspecting, etcetera, etcetera. I just want to make sure that we are using the same words here when we are using the words "calling". When I am using the word "calling" I am meaning persons engaged in the utilisation, operation, control and maintenance, installation inspection, etcetera, etcetera of apparatus which are used for the purpose of radio technology, radio telegraphy, radio telephony, radio television. We are using "calling" in the same sense are we?

PN1368

Yes we are?---Okay. Well then I agree with that statement.

PN1369

Yes and I'm specifically saying that part of the rules refer to certain callings of persons engaged on broadcasting stations, I think we've agreed on that?---That would include say radio generally and radio television, for example, radio signals, etcetera. Some cable would be involved in that as well, yes.

PN1370

Right but certainly not all employees, I think as you acknowledge - - -?---Certainly not, no. We don't make that claim.

PN1371

You go on and attach, in your statement, in paragraph 23 you refer to:

PN1372

Traditionally covering certain industrial interests in OTC.

PN1373

?---Yes. What paragraph 23, is that the paragraph you're referring to?

PN1374

That's paragraph 23 and that's through the PREIA?---Correct, yes. The then PSU and prior to that the ACI also had employees but I believe, in this part of my statement, I am focussing on the PREIA rules so that is why I don't mention them there.

PN1375

Right and again the OTC is a specific part of the particular callings identified in the rules of PREIA?---No, I wouldn't put it that way. Certainly the OTC is mentioned as an example of an employer who engages or employs staff within those callings.

PN1376

Yes, the rules don't say "as an example" it simply describes certain callings and says that includes - and then it sets out a number including OTC?---When I say the words "as an example" I interpret the words - obviously this is not a matter for me ultimately - and shall include to be used in the sense of as an example of the broader descriptions in the first part of that paragraph.

PN1377

Yes, I understand why you would want to read it as broadly as you do, Mr Jones. I am just asking, at the moment, whether you acknowledge the sort of structure of the rules. Now you then go on and deal with the PRIE award in AOTC and classifications covered?---Yes.

PN1378

And you refer to the superseding of that award by the Telstra CPSU Award 1996?---Yes.

PN1379

An award consolidating the previous awards of the then PSU and PREIA?---Yes.

PN1380

Now you've attached that award and that's SJ3 - - -?---I've attached a part of that award, yes.

PN1381

Yes, I'm sorry. You don't attach the whole of the award because you attach a particular part which was a fairly contentious part, wasn't it?---I think you were involved in it as was I, Mr Parry, yes.

PN1382

In that attachment you've got, you have the various technical classifications and as part of that case the CEPU opposed any technical classifications going into the CPSU award, didn't it?---Yes, it did.

PN1383

It argued indeed, in that case, that firstly there was a breach of the agreements that were reached in 1992 between the CPSU and CEPU?---I think we each allege that against each other, Mr Parry, yes.

PN1384

There were allegations made by both parties that there had been breaches of the arrangements made in 1991/92?---We each allege that, yes.

PN1385

The CEPU argued that you didn't have coverage?---They, there was part of one of their, they argued that we didn't have extensive coverage or complete coverage. They certainly argued that and I think Telstra and ourselves argued that we did.

PN1386

So, that was a live issue in those proceedings?---Oh, certainly it was, yes.

PN1387

Ultimately I think is what you have attached to your statement that is, the part 4 of the award that was inserted following that sort of argument that went on in the Commission?---Yes. It was ultimately arose out, the matter was originally heard by Commissioner Holmes as you are well aware and it was subsequently determined by as he then was Deputy President Duncan on 28 July and this order was a result of the decision some weeks earlier.

PN1388

There was I suggest to you no actual decision either by Commissioner Holmes or Deputy President Duncan on the actual scope of the coverage of the CPSU?---Well, the fact that an order was made we must assume was made with jurisdiction. That amounts to, was a decision ever made and committed to writing on that particular point? No, I am not aware of it but an order was made to which several, which governs the employment of many hundreds of employees now.

PN1389

That particular order, if I could take you to it, was made and the parties bound on the first page referred to (a) its binding on the union and the corporation being Telstra:

PN1390

Part 4 of this award will only apply to members of the CPSU who are employed by the ...(reads)... in the international business unit as at 2 November 1995.

PN1391

?---Yes.

PN1392

The international business unit was the unit that followed OTC. It was OTC within Telstra?---Yes.

PN1393

What the Commission ultimately did was I suggest it never decided the questions of the extent of the coverage of the CPSU but what it did was make an award which applied only to people that had been performing functions in the old OTC?---I don't see in my opinion, Mr Parry, how they could do one with not the, one and not the other because they're acting within jurisdiction. It is not a matter for me to determine.

PN1394

Sometimes the Commission acts outside jurisdiction, doesn't it, never deliberately though?---Rarely I'm sure.

PN1395

In paragraph 26, you refer to:

PN1396

The companies in these proceedings have people who are either engaged or employed ...(reads)... carriers utilise this technology to carry a telecommunications signal.

PN1397

and that is the thrust of your case in relying on the references to radio telephony or telephony, isn't it?---No. Let me say, it is commencement of the case we are relying on on that part of the rule in respect of employees who might fall within the calling.

PN1398

Your position is because these companies are involved in the sending of signals by radio or by cable. That means they fall within the old PREIA rule?---No. Our position is a little bit different to that. These, all of these, it is our position that these companies employ persons who are engaged in the utilisation operation and control, etcetera as the CPSU, as the eligibility rule reads and evidence of that is the fact that they can't carry any, a telecommunications carrier cannot be a carrier unless it uses one of those two technologies.

PN1399

No-one can send information beyond voice range without using radio or cable, can they?---I don't think that is a very controversial thing to say. I would have to agree, yes but that is something different to what I am saying in this paragraph. What I am saying in this paragraph is the companies who are actually telecommunications carriers it is a very specific type of activity. To be a, to carry a telecommunication signal you need, it needs to be done through one of two mediums. One of those mediums might be through free space and the second of those which is done through radio technology and the second of those mediums is through a guided electromagnetic signal sent down a cable.

PN1400

In that context here, when you are relying on the PREIA rule, you're saying there are people that will be within the callings identified within the rule that are employed by telecommunications carriers?---Yes.

PN1401

Presumably you accept that there will be some people employed by these companies that are not necessarily within the callings identified?---Absolutely, yes.

PN1402

You go on and then deal with mobile and wireless telecommunications carriages services having a licence issued by the ACA. It refers to the transmission of telecommunications signals and you refer to them using radio apparatus for transmitting telecommunication signals. Do you know what radio apparatus these various companies you have referred to utilise?---Various forms of radio apparatus. They all have a licence to transmit a signal using a radio transmitter. I am not a technician, Mr Parry. I wouldn't pretend to be one. I couldn't tell you the technical specifications of each of these, the transmission devices used by this company but they are all licensed to operate specific radio devices to transmit signals and I know that because that is a publicly available database of persons with those licences.

PN1403

Yes, but having a license to transmit?---Doesn't mean you do.

PN1404

Doesn't mean that one has - owns - operates the radio apparatus for performing that transmission, does it?---It's pretty strong evidence that you do.

PN1405

That having a license to do it means that you have the equipment, own the equipment, operate the equipment yourself?---I see the distinction you're making. No, obviously it doesn't necessarily mean that.

PN1406

And you don't know yourself what particular transmission apparatus these various company you identify have, do you?---I cannot tell you now. I have seen in some - in relation to some of them, some of them have actually been - declared - been declared services. Some of the radio apparatus that have been - that are owned and operated by these companies are declared services. For - I think there's a company here - I'm trying to think of an example of one, PanAmSat for example and it's not listed there, has a radio device - a radio license which is a declared service. I think there's a couple of others as well, Mr Parry. I cannot say that about all of them. I cannot say that I know that they own device which they're licensed to operate but I know that they are carriers. I know they tell their customers that they are carriers and they use wireless devices. I know through the evidence of the AIG witness statements, that some of them employ people performing those technical functions.

PN1407

So, that's where your information comes from for your statement. Each of the companies who use radio apparatus - I withdraw that. So, you then refer to functions typically performed and you have communications technicians and communication engineers and customer service people. That particular material there is speculative on your part to the extent that you don't know which of those companies employ which of those classifications, do you?---Unless it's specifically adverted to later - no, it's an example of the types of functions. I think it expresses it in those terms. It's examples of persons who would be - who would normally in a telecommunications company who are performing those functions.

PN1408

Yes, and- - -?---It's expressed in those terms.

PN1409

They're the sort of functions that you're aware of are performed at Telstra?---Well, if I could take an example. I know through talking to members for example, that AAPT and Orange/Hutchison, that they employ people doing account management billing and credit management services. I also know through talking to people that members of companies like OneTel and Primus that they employ communications technicians working on wireless and fixed line networks. I know that through talking to those people.

PN1410

So, at- - -?---They're examples.

PN1411

But AAPT and Orange?---Yes.

PN1412

You were aware that there are employees that do accounts?---Yes. I'm aware that they employ people who do technical functions - wireless technical functions as well because ex-PREIA members have gone and worked there for example.

PN1413

Ex-PREIA members - I'm sorry, you don't need to- - -?---Sorry, Ex-OTC members. I'll have to check their membership status, Mr Parry.

PN1414

They might be outside your eligibility, Mr Jones. I was dealing particularly with the accounts, leaving aside the technical functions for the time being. You're aware that AAPT and Orange employ accounts staff, as it were?---Yes. AAPT and Orange, did you say? Yes. Yes.

PN1415

I see. You then go and - sorry, you're next paragraph refers to not only wireless but cable technology as you say. When you say utilise cable technology, you're talking about using a cable for the sending of a telecommunications signal?---Sorry, I was - I didn't quite hear you. I was thinking about the answer that I gave to your last question. I gave - they should be taken as examples of people who I know. I also know through my conversations with members at Primus and OneTel, for example and at Trans ACT and those people are also employing people in accounts and billing functions. I know that through talking to those people. If the purpose of asking that question is to get a comprehensive list of those people who are employed at, then my answer to your previous question was example not a comprehensive list.

PN1416

I think you've just said you've spoken to people at OneTel, Primus and Trans ACT, was it?---AAPT and Hutchison.

PN1417

I'm particularly interested in AAPT and Hutchison?---Yes.

PN1418

I think you're evidence was, you're aware that they employ people to do accounts?---Yes and billing functions, yes.

PN1419

In that respect, they would be no different from, I suppose, any other business in Australia?---Well, except that billing for telecommunications is actually quite different to every - to any business in Australia because there are specific skills and technology involved and indeed, companies like AAPT advertise specifically for people with previous telecommunications industry knowledge. It's different in many respects, Mr Parry. It's not - they're not the same as any business in the country. Very specific technologies and very specific legislation involves the billing functions and specific arrangements of the billing functions in telecommunications companies.

PN1420

In paragraph 29 which is referring to utilising cable technology for telecommunications purposes?---Yes.

PN1421

Now, you say the following companies in these proceedings employ people for the utilisation of cable technology. Do you mean by that, that those companies use cable for telecommunications purposes and people work in relation to the use of the cable?---Yes, I do mean that.

PN1422

And you're not suggesting that covers all employees of AAPT or Macquarie or World Exchange, are you?---No, that's not what the CPSU is saying.

PN1423

Again, it would require the identification of calling in a context of the rule?---Yes.

PN1424

Now, to deal with the telecommunications industry and eligibility rule. The telecommunications subrule which was amended in 1993. Now, you refer in paragraph 32 the eligibility that reflects the industry rule, subject to certain exclusions in subrules F and K of subrule - part 1 of chapter of A and so forth?---Yes.

PN1425

So I think we started off today discussing how those exclusions operate, and you gave the particular example of a professional engineer, that is, professional engineers are excluded, but you say that the POA brings them in again?---I say that the exclusion within the rule was designed to prevent the ACOA from enrolling as members persons who were eligibly members of the POA. That's what I said.

PN1426

You have no doubt read our submissions in these proceedings, Mr Jones?---Yes I have, I don't have them with me.

PN1427

I'm not going to take you through and ask you whether you agree with them or not, but there is reference within those to certain exclusions that appear within the - - - ?---I recall reading that, yes.

PN1428

Could you tell the Commission - there are various exclusions, you might identify them generally. We have spoken of the professional engineers and how you say the POA has impacted on that exclusion. What has impacted on other exclusions?---I'm not quite sure I understand the question.

PN1429

Perhaps I will put it this way, then. You have identified in your statement certain exclusions in the rules of the CPSU which qualified a telecommunications subrule?---Yes, there are.

PN1430

You have identified one exclusion, being professional engineers, which is impacted on by another part of the rule?---Yes, what are the others, is that what you are asking me?

PN1431

Yes?---Well, there is a general demarcation in relation to Optus and companies which are related to Optus. There is demarcation in favour of the - I want to make sure I don't miss any of this, perhaps if I used the rules as a guide. There are demarcations in favour of some of the antecedents to the CEPU, which include generally the words technical officers, external plant technical officers. That's something that's been in our rules since the ACOA days. In the APSA days there is an exclusion in favour of the ASU as it was at 1991 as well. I am sure you will advise me if I have missed one.

PN1432

I think that last one you referred to, the 1991 ASU, that was an exemption, the ASU's rules at that stage I think included coverage of the technical services bill?---That is at subrule F4? The important thing about subrule F is that it was inserted into rule prior to subrule G, being the PREIA rule. The PREIA rule came after, amalgamation came after those demarcation agreements were negotiated. So it must be read in that context.

PN1433

Your statement goes on then and deals with the telecommunications industry Ombudsman?---Yes.

PN1434

The television industry Ombudsman is not an ombudsman that deals with the employer/employee matters is he?---Certainly not. It's designed for end users of telecommunications services, companies which provide telecommunications services.

PN1435

End users to make complaints about telecommunication services they are meant to receive or haven't?---Or how they have been billed, that's probably the biggest complaint they get is billing complaints, other faults not being cleared in time, those sorts of things, internet service problems, those sorts of things.

PN1436

You then go on and deal with industry associations. Now, the first industry association you refer to is SPAN?---Yes.

PN1437

I think you have attached to your statements exhibit SJ4?---Yes.

PN1438

You have I think on page 4 - on the third page in there's member profiles of SPAN?---Yes.

PN1439

And there are a couple of companies that I appear for, AAPT and Hutchison Telecommunication, and Macquarie?---Yes.

PN1440

There is also Baker and Mackenzie, that's a law form?---Yes.

PN1441

Deloitte Touche Tomatsu, that's a large accounting and consultancy firm?---Yes.

PN1442

As is KPMG?---Yes.

PN1443

That's as I read that document a list of people that joined SPAN, or have joined SPAN?---Yes, it was attached to the statement because in your original outline of contentions, the company seemed to be suggesting that those companies in particular had a principal function which was the manufacture of equipment and line, and I looked at the SPAN profiles of the companies that you represent, and it seemed to me to be completely at odds with what they said about themselves on the website and other places.

PN1444

I'm sorry sir, the SPAN reference isn't in support of any suggestion, it's simply because one is a member of SPAN?---Absolutely not, no, absolutely not. It was a means of looking at how they described themselves within the industry.

PN1445

The next one, the Australian Mobile Telecommunications Association, again that has membership I think in exhibit SJ5, which covers some of the people I represent, and also I think on the first page, Ericsson, Fujitsu, Middletons, Moore and Bevans, a legal firm - - - ?---Hyundai Electronics.

PN1446

So certainly membership of that quality is a very broad and diverse one?---Yes, but one would assume that people who join that had some communion with the aims of the organisation, which is to promote mobile communications and applications.

PN1447

A large number of people in the community have that sort of interest in promoting those sort of matters, don't they?---Manufacturers of equipment and line resellers of equipment, mobile service providers, mobile carriers, yes the whole range of people, people who provide a service to mobile services, yes. I don't say in my evidence that because they are a member of that association they must be, I say it is indicative of it.

PN1448

Now, you then go and analyse the business of the companies subject to these proceedings and is it fair to say that then in respect of some of these companies you've spoken to people employed there and researched the internet and publications. In others you've researched the internet and publications and you've generally referred to the researches you've done within here?---My memory is that is a correct statement, Mr Parry. Yes, I would agree with that.

PN1449

In respect of AAPT for example you've had some discussion with CPSU members employed by AAPT?---Yes I have.

PN1450

Would that be in the call centre area?---In both call centre and billing area and as I mentioned earlier technical employees, yes.

PN1451

So you've spoken to call centre, billing, technical?---Mm.

PN1452

Can I take it that the knowledge you've gleaned from those employees is what is referred to in paragraph 49?---Yes, that's true. It's not all I learned from them but certainly I got that knowledge from them, that's true.

PN1453

The rest of the references to AAPT you've gleaned from their 2000 annual report and - and I'll complete this, a leaflet which you attach. So SJ6 and SJ7?---I think in most cases where I have referred to the exact source where I've got the information from, Mr Parry. So, yes, the leaflet, yes, actually there was one other source. There was an industry report by an industry analyst by the name of Paul Budd who is well known to those who operate within the union industry. He operates a web site and also produces company profiles on every operator within the industry including AAPT and I read that as well.

PN1454

All right, but - - - ?---I haven't actually referred to that source in these documents but yes that was also a foundational document.

PN1455

No, I'm just trying to work out - I think as I read your statement the first - paragraphs 43, 44, 45 refer to the - I'm sorry, paragraph 43 refers to the annual report?---Mm.

PN1456

44 presumably is material you obtained from the annual report but it might have been from also Mr Budd?---I think at paragraph 43 I've listed all of the information and where I got it from.

PN1457

I see?---Yes, plus Mr Budd, yes.

PN1458

I see?---Where it's not specifically referred to elsewhere, yes.

PN1459

Now, if I could go on. With regard to Card Call, that's on paragraph 57?---Mr Parry, I was wondering - this is probably completely inappropriate of me but I have a calling of my own at the moment that I must attend to.

PN1460

THE COMMISSIONER: We'll adjourn for five minutes?---I appreciate that very much, thank you.

SHORT ADJOURNMENT [11.35am]

RESUMES [11.49am]

PN1461

THE COMMISSIONER: Yes, Mr Parry?

PN1462

MR PARRY: Mr Jones, you in paragraph 57 refer to Card Call International?---Mm.

PN1463

You refer to your research on the telecommunications industry which included reading a year book 2000 and viewing information on a web page?---Mm.

PN1464

Can I take it that the information you've set out here in respect of Card Call International is essentially derived from those two sources?---At the time of making this statement, yes.

PN1465

Clariti Telecommunications again you're research there has derived from the communications year book and viewing the web page together with the telecommunications industry ombudsman's web page. Again can we take it that essentially that's where you gained the information you've contained in your statement from?---Again at the time of making this statement, yes.

PN1466

With regard to Global Crossing again you refer to documents?---Mm.

PN1467

On a web site?---Mm.

PN1468

You've extracted parts of that, can I take it that's essentially where your knowledge of Global Crossing or Ixnet came from?---Yes, you can.

PN1469

With Global One, you've referred to a web page which - and can I take it that's where your knowledge of Global One essentially came from?---Yes.

PN1470

Macquarie Corporate Telecommunication Services, you refer there to reading the description of the business of Macquarie in the company's annual report in its prospectus in the communications year book 2000 and viewing a web page. Again is that where your information in your statement about Macquarie Corporate came from?---In part. Also through my discussions with a senior National Union official who doesn't work for a registered trade union. Who was approached by Macquarie in relation to providing telecommunication services to the union movement.

PN1471

It was a sort of sales call, was it?---A bit heavier than that.

PN1472

This man related to you parts of that conversation, did he?---I didn't say it was a man but, yes, it was a man.

PN1473

This person?---Yes, he asked me about it and gave me the name of a couple of people to speak to and, yes, asked me whether I was pursuing it as a part of this process.

PN1474

Yes, your statement essentially extracts and relies on the documentary material you refer to?---Quite so, yes, I don't cavil with that.

PN1475

With regard to Hutchison Telecommunications Australia, you refer to discussion with members - this is on paragraph 111, discussions with members and staff?---Yes.

PN1476

Research into the company which included an analysis of the company's annual report, the company's web site information. Now, you also attach a copy of the 1999 annual report?---Mm.

PN1477

You thereafter extracted some parts of that report in your statement?---Yes, that's correct. It's SJ18, isn't it?

PN1478

Yes, SJ18?---Yes.

PN1479

You then refer to the - in paragraph 119, to the web site?---Mm.

PN1480

You attach that document and you then in paragraph 120, refer to discussions with members at Orange and Hutchison. I also know the company has call centres in Sydney, Melbourne and Brisbane?---Mm.

PN1481

Where staff perform customer service and billing functions and that's the paragraph that contains the information that you rely on in respect of what you've been told by members and staff?---Can you ask me - I'm not quite sure I understand the question?

PN1482

I'm trying to work out the structure of your statement?---Yes.

PN1483

You see you start off by saying the sources of your research and then you in your statement contain a number of propositions?---Yes.

PN1484

I'm suggesting that all the propositions that you've contained in this statement are derived from the documents you refer to apart from paragraph 120 which is where you make reference to the discussions you had. 120, the discussions you had with members at Orange or Hutchison?---Yes, that is true. Can I also say, Mr Parry, I hope it's obvious but just for clarity there was other sources such as investigations with the ACA and reading of - that's the Australian Communications Authority and reading their reports and materials as well. I think I've indicated that implicitly but I should say that explicitly and the telecommunications industry ombudsman.

PN1485

In respect of - - - ?---Yes and in respect of each of the others where I've mentioned knowledge about them.

PN1486

Yes?---AAPT for example. I have said it in other parts of my statement. I just - - -

PN1487

So, where you refer to that we can obviously rely on it but where you don't refer to it, the knowledge you've set out herein is derived from the sources you've identified in your statement?---Yes, that is - that is true. That is true. To the best of my knowledge where ever I've referred - I've indicated in each instance where I know and how I know what I've said in this statement.

PN1488

Now, is it the position that you've spoken to members employed by Hutchison at call centres?---At both call centres and at the administrative centre in - a call centre - a call centre in North Sydney. I've spoken to members of the call centre in North Sydney and in Brisbane and I also have a call centre and an administrative office, two separate building, separate offices in Melbourne and I've spoken to people there as well.

PN1489

Have you conducted those discussions or are they other people at the CPSU?---In respect of the Sydney and Brisbane, myself personally. In respect of Melbourne, organisers of the CPSU - Ms Gail Drummond and Ms Annie Ribberitz who are organisers who report to me.

PN1490

And with to Pahth Telecommunications in paragraph 130?---Can I just say I've been quite clear on that - there have been other discussions that have occurred between CPSU officers and employees who report to me but I haven't included those in there for obvious reasons.

PN1491

Pahth Telecommunications - in the first paragraph you identify your sources?---Yes.

PN1492

Communications year book and the web page, again that's essentially where you obtained your information about Pahth?---That's correct, yes.

PN1493

And with regard to RSLCom, paragraph 146, again you rely on the year book and the web site?---For the statements that I make, yes. It would also be true to say, Mr Parry, that my knowledge of all of these is gained from comments and statements made by these companies in the press as well.

PN1494

Yes, well presumably - - - ?---They aren't adverted to.

PN1495

- - - well, presumably you've included in this statement that which you consider relevant to the matters before the Commission?---That which I can directly say I know for fact either something that has been directly said to me, something which I directly know or something that I have directly accessed which is an original document produced by the company.

PN1496

Well, the position is this, isn't it, that the vast bulk of your research has been conducted by public documents produced by these companies, either in accordance with reporting to members and the stock exchange and also web sites - the vast bulk of this information comes from those sources?---Unless otherwise stated, yes.

PN1497

Unless otherwise stated and WorldxChange finally - can I take it that everything that's set out there in respect of WorldxChange comes from viewing the company's web page?---Yes, that is correct.

PN1498

Right and you've attached that web page?---Yes, I have. It's SJ28, is it?

PN1499

I have nothing further if the Commission pleases.

PN1500

THE COMMISSIONER: Thank you. Mr Tamplin?

<CROSS-EXAMINATION BY MR TAMPLIN [12.00pm]

PN1501

MR TAMPLIN: Thank you, Commissioner.

PN1502

Mr Jones, Mr Parry has taken you through the different companies and their industry associations. I take it that the same applies to AOL being a member of the Internet Industry Association. It does not, by that implication, form an industrial interest?---I don't understand the question, Mr Tamplin.

PN1503

The Internet Industry Association is not a registered organisation?---Good Lord, no.

PN1504

There are many people who or companies who are members of it who are not internet providers?---Have you - yes, yes that is true. Yes, they're not internet service providers. Yes, that's correct. I wouldn't say the same about your client though.

PN1505

Well, that's why you put the statement here - in the statement you gave to AOL at point 52 - - -?---This is - sorry, paragraph?

PN1506

Fifty two?---52, thank you. Yes?

PN1507

And you refer to the web page?---Mm.

PN1508

And you refer to when you attached that web page at SJ?---Correct.

PN1509

A copy of that web page at SJ6, I think it is?--- SJ8, it might be, Mr Tamplin.

PN1510

Could I take you to it?---Yes, you can.

PN1511

Could I take you to paragraph 3 of the reproduction of the web page which is headed AOL?---It offers?

PN1512

Do you have that?---The paragraph that starts, It Offers or the one preceding that?

PN1513

Yes and it says at the top of that page in the heading:

PN1514

AOL is giving away an IBM PC each day until the end of February.

PN1515

?---Yes. I didn't get one.

PN1516

Click here for details.

PN1517

?---Yes, yes.

PN1518

It then goes into the third paragraph and says:

PN1519

It offers Australian consumers all the benefits of the internet along with communications tools -

PN1520

and it sets out such as e-mail instant messenger and Buddy and then it says, "A whole range of other tools" as it refers to?---Yes.

PN1521

To access those tools, a person needs to send some form of electronic or electrical impulse along a cable or a conductor -

PN1522

is that how I understand access is done from a phone or a PC to an internet provider?---Yes. Look, I'm not a technician, Mr Tamplin. So, I can tell you at broad levels that that's the way it works. I hope you're not going to drill me on the details of digital technology.

PN1523

No, no. We did a little bit of that yesterday and I think I walked away just as confused as when I came in. You would accept there in the next paragraph or, sorry, under the heading it says:

PN1524

Affordable pricing to suit all Australians -

PN1525

and then it says, in the second sentence of the first paragraph:

PN1526

All without having to add features down load software tools or pay for additional e-mail accounts.

PN1527

It then says:

PN1528

AOL Australia now offers unlimited access to the service and the internet as two separate issues in an unlimited price plan for $24.95 per month including GST.

PN1529

So, when they offer access to the internet as a separate and distinct issue or function to what they supply, does that place the internet in the telecommunications industry in your assessment?---It places both AOL as a internet service provider within in the telecommunications industry. Yes, it does.

PN1530

So, if I was to tell you AOLs site is in America and not here, would that place them in the telecommunications industry in Australia?---Well, the physical location of where the actual site is posted is not point. They employ people here in Australia to provide a telecommunications service in my understanding.

PN1531

That service is supplied from America?---Yes. As I understand it, the site is hosted - the web page is hosted in America but the service is provided here in Australia.

PN1532

Can I pass up a hand out that gets put around by AOL?---Mm.

PN1533

I only have a few of them - one for the Commission - it says on that hand out and I ask you to note the hand out is wrapped in cellophane. It's in a printed document of cardboard. If you open it up there is a CD disk inside of it that is printed on and manufactured in the printing industry and then it says on the front cover of the hand out at the base on the right hand side, "Excludes telecommunications charges"?---Mm.

PN1534

So, I come back to the unlimited price plan for 24.95 per month - that is a charge on top of whatever the consumer is paying for linking up with the cable, would that be correct?---I'm not quite sure I understand but I'll try and respond to you, Mr Tamplin. Firstly, if the question you're asking - no, perhaps I'll ask you to ask me the question again because I'm not quite sure I understand what - the question you're asking me.

PN1535

Sure, sure. The hand out you have in front of you, the sample, for want of a better phrase - has at the base of it, "Excludes telecommunications charges"?---Yes. I don't find that remarkable because all internet service providers - well, when anybody subscribes to an internet service provision, they're always paying the cost of local call or the cost of the call that they are making to access the point of presence for the internet service provider. So, yes I saw that and I don't find it - it's not an extraordinary thing.

PN1536

Now, that pricing that's there is controlling or governed or regulated by the ombudsman, is it not?---Well, not only the pricing but yes, principally, yes, okay. I agree with that.

PN1537

And also regulated by the Telecommunications Service and Providers Act?---What is - AOL is an internet service provider like other internet service providers is regulated by the Telecommunications Act 1997. It is regulated as a service provider, a carriage service provider as it is classified under that Act and as such it must become a member of the Telecommunications Industry Ombudsman's Scheme which is a requirement of that Act and that is why AOL is listed in my statement as a member of the Telecommunications Industry Ombudsman's Scheme because the legislation says as a telecommunications service provider they must be a member of that Scheme.

PN1538

And that Act acts conjointly with the Telecommunications Service and Provisions Act, doesn't it?---Do you have a copy of that Act?

PN1539

Consumer Protection - - - ?---Yes. I'm now familiar with - - -

PN1540

- - - and Service Standards Act 1999?---Yes. My recollection - if you've got that Act here I can - if I could have a look at it but my recollection is that Act causes a series of amendments to occur to the Telecommunications Act 1997.

PN1541

And there is amendments to the Act itself as well?---Yes.

PN1542

Of recent making, 2000?---Yes. Yes, that's right.

PN1543

What I'm putting to you is the Act and the Ombudsman's position is in regulation of the industry and does not form a basis for establishing an industry calling or union - the extent of an union rule?---Yes. I don't know if I understand what you're saying so I don't know whether I can agree or disagree with you, Mr Tamplin.

PN1544

Perhaps, if we go over it again - the industry or the function of supplying telecommunications to the public is regulated by the Telecommunications Act 1997?---Correct. Yes, I agree.

PN1545

Which has within it provisions for an ombudsman's scheme to facilitate public access and public criticism of companies?---I wouldn't put it that way - I wouldn't agree with you having it put that way. I would agree with you that what you're saying to me is that the Telecommunications Act 1997 requires telecommunication service providers which internet service providers are a subgroup of to become members of the Telecommunications Industry Ombudsman's Scheme. I agree with that if that's what you're saying to me.

PN1546

Yes, for the provisions of regulation?---Well - - -

PN1547

Or the raising of complaints to the ombudsman?---- - - absolutely. It's about consumer complaints, yes. So, the client - the customers of your client - if they have a complaint about the service that your client is providing then whether that be about the billing arrangements or other arrangements that they are unsatisfied with, then the Telecommunications Industry Ombudsman is the corporation set up by the Act to deal with - to deal with that problem.

PN1548

Yes and that operates in conjunction with what is mostly aptly titled, I would put, the Telecommunications Consumer Protection and Services Standard Act?---Yes. They're regulating - they're providing for different things. I mean the Telecommunications Consumer Protection and Standards Act was an act principally designed to - to mandate the Government's service standard requirements for telecommunications service providers. That was its principal purpose. Yes, it also had provisions in there necessarily for the referral of complaints about the non obtaining of those service standards to the Telecommunications Industry Ombudsman.

PN1549

But neither the 1970 [sic] Act nor the Telecommunications Consumer Protection Act nor the Ombudsman Act lend any clarity to an industry calling or eligibility rule of your union?---Can I take that one-by-one - the first act you referred to was?

PN1550

1997?---The 1997 Act like the 1991 Act classified telecommunication - classified internet service providers as the telecommunication service provider. In the case of the 1991 Act, it classified them as eligible service providers. They were regulated before - by the Act and brought within its scheme. Both of those Acts required those sorts of organisations and companies to join the Telecommunications Industry Scheme. It is my evidence that once they are - if they are a member of the Telecommunications Industry Ombudsman's Scheme they are within the industry and the similarity or - not the similarity, the identity of the definition of a telecommunications service within the CPSU rule in the telecommunications industry rule with the definition of a service in the Telecommunications Act means that if they are required to be a member of the Telecommunications Scheme they fall within the definition of a telecommunications services. That does not prove that that is their principal function but it certainly proves they are a telecommunications service within the meaning of our rule and that's all I'm trying to say in relation to your client, Mr Tamplin. I'm saying that because they are a member of the Telecommunications Industry Ombudsman's Scheme - because of the requirements of the Act, they also meet the definition of the telecommunications service within our rule because they're the same definition. That's what I'm saying about the client. I give no evidence about the calling rule, because I don't in my evidence, say anything about the PREI, if we are using those terms, rule and the business or the callings performed by employees of your client.

PN1551

Therein lies the argument of course between the issue. May I pass up another example for you because I wish to try and understand how far all this extends?---Can I take these home?

PN1552

No, I think we are going to be using them at a later date. What we have done unfortunately, I have only just recently purchased that folder that you have. I have taken photocopies of each page and have distributed them, I have not been able to staple them. So that page 1 marks the first cover, page 2 the first inside cover, page 3 is the third inside cover and page 4 the back cover. It says there that:

PN1553

This is a web builder quarterly design and development CD.

PN1554

And it is priced at $36.68. It says:

PN1555

Add style to your site with MXL, XML, XSLT and SOTE.

PN1556

They are obviously technical terms. It would convey to me that I can establish my own web site, would I be correct in that assumption?---XML and XSLT are programming languages as I understand which enable you to load a web page onto - hypertext mark up language onto a web page yes.

PN1557

Now can I put to you a hypothetical. We just dealt with AOL charging for part of their services, we have just dealt with the transmission charges, telecommunication charges being a separate issue. The hypothetical is this, I establish a web site called How To Struggle With Your Employer and several of my colleagues assist me on that web site and we do it for nothing, we do not charge access for it. Does that put me within the definition of your rules in your view?---Certainly not Mr Tamplin.

PN1558

Certain not, what is the deciding factor?---Because you're not an employee to start with.

PN1559

Yes and let us just say that I am?---Let's say that you are, who are you working for - sorry, you are cross-examining me. It would depend on who you were working for.

PN1560

Let us say that some of our people, some of my friends who work with me do it for an hourly rate by a contract basis?---Yes.

PN1561

Would that fall within the rules of your organisation? Can I put it another to you. I am trying to get to the nub of the issue?---Yes.

PN1562

Is the issue if we start to charge to charge for access we then evoke your rule?---You are going to have to describe - before I can answer that question, you're going to have to describe to me what you are doing with the technology that you are utilising before I can answer your question, but could I answer your question in this way. If you were working on your own and you design a web page using Web Builder, John Tamplin, individual and you have that web page host - you have an arrangement with an internet service provider such as AOL and AOL host that web site, ie they are providing a service which enables other people in the community to access your web page, the people who host your web page are within the definition of a telecommunication service. They are providing a - they're an internet service provider as they are providing a web hosting service. But you as an individual who sat down in your - and designed that web page would not fall within the definition of our industry and eligibility rule on what you've told me unless there were more.

PN1563

No, that is fine. So the charge that AOL places on that person that comes in through AOL to me evokes the Ombudsman Scheme, the Consumers Protection Services and The Telecommunications Act?---No, there's actually two charges that are occurring as you pointed out to me earlier. There are two charges that are occurring. Firstly there is the charge that is made when you connect your modem to the consumer access network, that's the charge that whoever your telecommunication service provider whether it's Telstra, Optus, Primus, AAPT, whoever provides your domestic or where ever you're sitting there on your computer making - connecting to the network, the person who provides you with the telecommunication services is one charge, but there is a separate telecommunication service which is being provided and that is the internet service provision. The provision of an internet service. Now the provision of the internet service is the service which enables you, after using your own telecommunications company and being charged 30 cents generally to connect to the ISPs computers and the ISPs modem and the ISPs land links are line links to other internet service providers or the network at large, that is the provision of an internet service and that is what you will be charged. So you are being charged twice, you are being charged once by your own phone company and once by the ISP and that and the Telecommunications Industry Ombudsman is not regulating AOL in respect of the first of those services because they have no relationship with AOL in respect of that despite the fact that many customers would like them to because that is probably one of the largest number of complaints the TIO gets about internet service providers, but they don't - they're not being regulated by the TIO in relation to that first charge, it's in relation to the second charge, the bill that I get send on a quarterly basis from Ozemail, that falls within the compass for example of the Telecommunications Industry Ombudsman Scheme and that is what's regulated by the Act.

PN1564

So the primary carrier, the cable carrier?---Yes.

PN1565

And AOL are regulated by the Act?---Separately, yes.

PN1566

Separately?---Yes.

PN1567

On the basis that they charge me?---On the basis that they provide a service.

PN1568

And charge me?---Well yes they could provide it for free if they like and many do, but they're still regulated because they provide a service.

PN1569

Do you know that provides it for free?---GoConnect, there's dozens of sites out there that you can connect, type in on a universal resource - searching device, free net service and you'll probably come up with 20 or 30 sites which on a basis will provide you with a service free and they make their money through advertising revenue often. So many of them do provide for free. Generally as a lead loss - on a lead loss basis or to hook you into other services.

PN1570

But if they made their revenue from advertising which AOL does as well and that was their sole revenue, would that place them under the provisions of the Act?---Yes it would.

PN1571

It would?---Yes.

PN1572

And because the Act has to regulate is that not right?---Yes.

PN1573

So I come back to the point, your assertion is because your rule coincide with, in your assertion, with the Ombudsman Act, therefore they fall within the industry core?---No, I don't say that, I don't say that. I say that because the definition of telecommunication service in our rule is derived from the Act and telecommunication service providers under the Act are required to be members of the scheme. If you are a member of the Telecommunications Industry Ombudsman Scheme, you get over the first hurdle of being covered by our industry and eligibility rule - our industry rule, I'll make that clear, our industry rule. The second hurdle is whether its the principal function.

PN1574

Yes, but your rule is not referred to in the Ombudsman Act?---God no, no.

PN1575

They are separate and distinct issues?---Absolutely.

PN1576

I think Mr Parry has just about covered every other thing I have raised.

PN1577

THE COMMISSIONER: He has a habit of asking all the good questions does he not?

PN1578

MR TAMPLIN: Yes.

PN1579

MR PARRY: And the bad ones.

PN1580

MR TAMPLIN: I take it that you are relying on picking up AOL because your assertion is that they are enhancing the business or any business whose principle function is incidental, ancillary or complimentary to the supply and/or installation and/or maintenance of telecommunication services?---Can I agree with you in these terms Mr Tamplin that we are relying on the fact that your company fits within the definition of a telecommunication service as set out in paragraph 30 in my statement in the parenthesis letters A and B.

PN1581

So again we come back to the rule, is a separate and distinct thing from the regulatory provisions?---Absolutely, yes, I agree with you on that.

PN1582

I have no further questions Commissioner.

PN1583

THE COMMISSIONER: Thank you Mr Tamplin. Ms Jones?

<RE-EXAMINATION BY MS JONES [12.26pm]

PN1584

MS JONES: I am just going to firstly cover some general - the first lot of questions of Mr Parry to yourself Mr Jones which were about the traditional coverage and then go to the precise - the two sets of rules relied on and the assertions of the union as to its coverage. At the commencement or roughly at the commencement of Mr Parry's cross-examination, there was a discussion that arose out of his - your paragraph 20 about the traditional coverage of the PSU as it was at that stage and the PREI. And I understand that what you were saying if you could just clarify this. The PSUs traditional coverage in telecommunications was clerical, administrative and IT staff?---That's correct, yes.

PN1585

And that the PREI traditional coverage in telecommunications particularly was in the technician's area although there were areas of clerical staff such as billing and so forth?---Yes, that's correct.

PN1586

You confirmed with Mr Parry that I understand that in relying on the PREI rule and this was a discussion at paragraph 26, that the CPSU asserted as relying on that part of the rule that refers to people engaged in the utilisation often and various other functions of apparatus used for two different purposes. What were those two different purposes?---Providing either a wireless or a fixed line telecommunication service.

PN1587

Right and they fell within what particular words used in that first part of the PREI rule?---Well a wireless telecommunication service is radio telephony, it would also include radio facsimile and radio telegraph and essentially any telecommunication signal whether that be data or voice sent by radio wave. The fixed line refers to cable operations and cable technology.

PN1588

And there was general agreement which is probably the one area there is agreement on at this stage which is that the PREI rule is a calling rule, not a classification based rule?---Yes, that's right.

PN1589

That is that you need to actually look at the work actually performed and then decide whether it fits within the calling so identified?---Yes.

PN1590

Is that correct?---Yes, I agree with that.

PN1591

Is that how the CPSU asserts its coverage?---Yes it's - and how the PREI has always, in my knowledge, has always asserted its coverage.

PN1592

Mr Parry took you to paragraph 24 and 25 of your statement wherein you refer to classifications firstly traditionally represented by the CPSU/PREI in AOTC?---Yes.

PN1593

And then to an award that superseded that award?---Yes.

PN1594

And you say that - you said that part 4 of that award contains the technical operation and radio grades classifications that were once in the former award?---Yes, that is correct.

PN1595

If we are talking about a calling award and sorry, that part 4 is contained in SJ3?---Yes.

PN1596

If we are talking about a calling rule, is there any indication in SJ3, there must be classifications there and there are, you took us to that?---Yes.

PN1597

Is there any indication within part 4 as to the type of functions or the work performed within those classifications that might give us an idea as to the nature of the calling?---Well yes there is in each of the classifications contained in SJ3. Firstly there is a description - the technical grades as they are called within Telstra. There is then a definition of the sorts of work that is concluded and we are warned in the award that the functions set out give an indication of the type of duties which will be expected in the various - - -

PN1598

What page is this just for the Commission?---It's page 4.

PN1599

At SJ3?---Yes. And it warns that technology changes and that new types of plant and new methods are continually being developed and the definitions give examples of duties and are not intended to be in any way conclusive and that's the way work classifications have generally been described in the industry because of the rapid change of technology. But to give an example, a telecommunications technical officer grade 1 does work consistent - carrying out of tasks associated with the installation, operation and maintenance of telecommunications equipment which is synonymous with the words in the rule of - the CPSU/PREI rule and it gives examples of certain sorts of technologies that they might be involved with. Again examples of technologies because many of these do change. The same with the telecommunications technical officer grade 2. It talks about - it says at page 5 that the role of the technical officer grade 2 involves the performance of technical functions connected with the installation, maintenance and operation of telecommunications of broadcasting equipment, this includes the analysis of complex systems and faults where a high level of diagnostic skill is required. Again that is synonymous with the words in the PREI rule. I will not go through each of them. The technical grades is basically broken into technical communications officer for which the qualification is for an associate diploma or equivalent qualification to hold that position. An associate diploma is generally in electrical communications and it's typical of work within this calling. There is also classifications in there towards the end, you might see something called a Rigger in there which is one of the last classifications mentioned and that specifically talks about the work of installing and maintaining apparatus for the collection and transmission of mobile phone or radio signals essentially. I'll just get the page of that.

PN1600

I think it is page 19?---Thank you, yes, you'll see that there are a range of typical duties. You will see the definition of a Rigger is involved in the maintenance, erection or construction of external aerial plant including solar antenna radio masts and towers, overhead line equipment, associated earthing systems to ensure that the signal is able to be transmitted to another radio tower or through to the fixed line network. And it gives typical duties that they are required to do. Again, they are typical functions that would be included - they are synonymous with the definitions within the PREIAI rule.

PN1601

Mr Jones, is it the CPSUs intention in relying on - and I'm turning to the telecommunications rule, which is rule 3E and it's various subparagraphs - to cover any business utilising a telecommunications service, is that what you assert in - - -?---You used the word - you said the word "utilise"?

PN1602

Yes, I did say utilise?---No, it's not. It's our intention that the rule covers and the employers principally subject of these proceedings, either own, lease, interconnect or purchase network capacity or they provided - they're providing a valuated service as defined within our rule. It's certainly not the reach of our intentions and the employers covered by this - this proceeding clearly indicate that that's not our intention; they all fall within - they all fall within that group or that class.

PN1603

Now, given your, what you say is the CPSUs - the manner in which the CPSU relies on the rules and how it asserts the rules coverage, you've provided in opening submissions the evidence available to you at the time, I think you said in relation to the principal functions?---Yes, yes.

PN1604

What else evidence did you provide?---Well, I've had the opportunity to read the evidence of the Australian Industry Group and on the basis of reading that evidence I'm more affirmed of the view that I was at the time that I made the statement, that the employers subject of these proceedings cover classifications falling within both our calling rule and our telecommunications industry and eligibility rule.

PN1605

So you have actually - these are the evidence that Mr Jones is referring to, I presume is the witness statements of the various companies - - -?---Yes.

PN1606

- - - that have been produced very recently, but which have not been tested in the witness box?---I haven't seen any sworn copies of those statements, but the draft copies that I've seen lead me to that view.

PN1607

Do you have copies of them with you, Mr Jones?---Yes. Yes, I do.

PN1608

Bearing in mind of course that they haven't yet been tested in the witness box and I have mine in no particular order because I really haven't had an opportunity to sort through them, would you go through the order that you have identified the company and describe to the Commission, based on the prima facie evidence there, how the CPSU asserts that the two rules cover the calling rules and the industry rules would provide the CPSU with coverage of employees of those companies sufficient to give rise to an industrial dispute?---Okay. I preface that statement by saying that we rely on the telecommunications industry and eligibility rule for general coverage of clerical and information - clerical, administrative and information technology employees. We rely on the PREIA rule, if I can use that annotated version, to - for coverage of technical employees, certain technical employees, together with certain employees engaged in billing and accounts functions insofar as they're approximate to the calling of that rule. In the first statement that I have looked - had time to look at is that of Mr David Bruce Napper, who you would see is an employee relations manager, and at page 2 of that statement Mr Napper advises that there are 1800 employees. He says that 450 of those employees are performing clerical functions at paragraph 10 - or I take that to be the meaning imported from paragraph 10 and 11. Well, if they are, if that stands to be the case, then they would be covered by the telecommunications industry and eligibility rule because AAPT, by its own admissions, is a company whose principal function is in the telecommunication - is in the telecommunications industry as defined by our rule. I then saw paragraph 15 and 16 of Mr Napper's statement and was surprised that there were 1200 employees who were award-free. It says:

PN1609

That 50 of these is characterised as technical officer and technical specialist performing the functions of installing and maintaining network facilities and technical specialist design, are involved in installing and testing client networks.

PN1610

From that I took that they would fall within the definition of our industry ineligibility rule - sorry, our calling rule, and are performing work analogous to that included in the Telstra CPSU Award. Of the 150 sales employees we would also say that they fall within our industry and eligibility rule. And the CPSU has similar coverage of - has coverage of similar employees in companies such as Pacific Access and we have classifications within our award in Pacific Access covering sales employees doing commercial travelling and light functions, yes. The next statement that I looked at was that of Mr - and forgive me if I - I don't pronounce this correctly - Mr Sukumar Arusi - Arasu, who the statement says is the human resources manager of AT & T Communications. On reading the functions of AT & T at paragraphs 4, 5 and 6, I believe that they fall within the telecommunications industry and eligibility rule. They are either allowed both, providing a telecommunications service and providing access to a telecommunications service. Well, certainly the provision of call card functions complements the provision, or assists the provision of a telecommunications service, so for that I took that they fell within our telecommunications industry rule. I saw that at paragraph 10 of the statement of Mr Arusi - Arasu, that five employees have performed in sales type functions and I believe that they are covered by our telecommunications rule. At paragraph 11 I see that there are there employees performing sales and support work and that these people would either be performing work which is of clerical and administrative in nature. Now, paragraph 14, I saw that AT & T are - has an employee described as somebody providing information technology support. The title seems to suggest that that would be something that falls within our industry and eligibility rule, but then I saw that they were also performing functions such as maintaining the PABX, the internal PABX system, and that is a function which would fall within our industry - our calling rule, insofar as that they're operating or maintaining a telecommunications - a radio - a telecommunications or service. I then next looked at the statement of Mr Damien John Stevens. I should say, to be perfectly clear, it was difficult for me - going back to the previous statement - it was difficult for me on the basis of the information at paragraph 14 of Mr Arasu's statement for me to make any conclusive views - forming conclusive views about whether he would fall within that calling rule, but it seemed to indicate on the information there. So I wouldn't want to overstate the position on that one.

PN1611

I presume nevertheless, you say that irrespective of that the position of the employees under paragraph 14 that there are other employees within that company who provide - who are covered?---Yes. Yes, I do that. It's the sales and clerical employees. In relation to the statement from card call, of Mr Damien John Stevens, again, similar to AT & T, they're providing prepaid phone cards. Most of the telecommunications companies provide prepaid phone cards as a means - it's another what they call sales channel, if you like, another means of getting their products into - to the consumers and maximising utilisation of their network. So from that, I gleaned that they're either providing a service or they're providing something which is incidental, ancillary, or complementary to a telecommunications service.

PN1612

In the sense - can I interrupt you - you described, I think, the scope of providing of services only in purchasing, leasing or interconnecting, I think?---Yes.

PN1613

In a sense that they're doing which one of those?---Look, it's difficult for me to tell on the information. Based on my knowledge of the industry at large I know that very many of these companies which provide a prepaid phone card actually bulk purchase wholesale telecommunications services, in which case I would say they are - if they are doing that they are providing a telecommunications service and were defined as such, as an eligible service provider under the 1991 Act, if that's what they are doing. But I - I'm making an assumption, I don't know that. If they aren't - if they aren't one of those companies that provide - that wholesale - purchases wholesale telecommunications then they don't fall within rule 3A and I would say they would fall within rule 3B, which is incidental, ancillary or complementary, because they are facilitating the sale of and the utilisation of a telecommunications service. Of - it says at paragraphs 5 and 6 - sorry, 5, 6 and 7 that, "There are 65 clerical employees and they would be covered by our telecommunications industry rule." I also believe that the 15 sales employees mentioned at - at paragraph 8 are also - so would also fall within that rule. I was unable, on the basis of the information in paragraph 9, to form a view about whether they would fall within the calling rule or not. Could be, it may not be.

PN1614

THE COMMISSIONER: Is that a convenient time?

PN1615

MS JONES: Yes.

PN1616

THE COMMISSIONER: Are you about to move onto the next one, were you? Before we adjourn the material that Mr Parry lodged that unfortunately I didn't get until yesterday, because I've had an opportunity to look at that, and it makes a positive application in respect of section 111AAA. I decided we'd continue to hear the balance of the evidence of Mr Jones this morning. As soon as your re-examination is concluded, Mr Parry, I'll hear you in relation to that application.

PN1617

MR PARRY: I think as a fact the application was made in the proceeding towards the end of last year.

PN1618

THE COMMISSIONER: Yes. I haven't turned up the transcript about that. It may well have been, but it certainly focussed my attention on the submission that you've made, in particular, in paragraph 53 where you cite AWU v Queensland. That decision, as I understand it, is authority for the proposition that the Commission upon an application being made, even before the finding of an industrial dispute, must consider that matter and if the onus shifts to the party seeking to invoke the jurisdiction to demonstrate that it is in the public interest that the jurisdiction be invoked. Certain obligations I have under the Act that have been or are being dealt with, but in particular, that's as I understood what is being raised in paragraph 53.

PN1619

MR PARRY: That's so.

PN1620

THE COMMISSIONER: Now, does that mean that before hearing your witnesses I should call on Ms Jones to demonstrate that it's in the public interest that the matter proceed?

PN1621

MR PARRY: We would submit so. We certainly - my recollection is that this - what was said to the Commission was that the matter was raised and an application was in substance made in October, November? Again, I can check the transcript of that, but that would be the substance of what I would be saying when called upon by you, Commissioner.

PN1622

THE COMMISSIONER: Yes.

PN1623

MR PARRY: As the Commission pleases.

PN1624

THE COMMISSIONER: Very well. As long as you have some advance notice of that, Ms Jones. We will resume at 2.15. Yes, Ms Jones?

PN1625

MS JONES: Perhaps just before you, we do have some views as to how the section operates. We accept that it operates prior to a formal dispute finding but there is clearly some requirements in relation to when that section operates, and I mention that because the way in which this case is being argued and the AIG does touch onto those particular requirements, but we will deal with that this afternoon.

PN1626

THE COMMISSIONER: I will hear you on that question and see how that fits with the reference that I've been given in relation to the AWU v The State of Queensland. If you don't have a copy of that decision - - -

PN1627

MS JONES: No, I do. We have looked at it carefully and I will be relying on that in our arguments. Thank you.

PN1628

THE COMMISSIONER: I will hear the parties after lunch. The matter is adjourned till 2.15.

LUNCHEON ADJOURNMENT [12.55pm]

RESUMED [2.20pm]Y

PN1629

THE COMMISSIONER: Yes, Ms Jones?

PN1630

MS JONES: Mr Jones, just preceding the luncheon break, we were going through - I had asked you to go through - what you have before you is unsworn but which are now sworn and filed in the Commission, witness statements of representatives from various companies represented by the AIG - and to identify based on your view, as to the application of the PREI Rule and the telecommunications rule how employees, however many might be covered - in those companies might be covered by your Rules, could you continue, please?---I think before the luncheon break, I'd expressed my opinion on the evidence of - on the statement I'd read of Daniel John Stevens of Cardcorp. The next statement I looked at was that of Peter Samuel Cook who it says is the Managing Director of Clearity Telecommunications. Mr Cook describes the functions - the principle functions of his business as a reseller of telecommunications service. A reseller is, under the '97 Act a service provider, a carriage service provider, and under the '91 Act would have been a eligible service provider. Both falling within the definitions of a telecommunications service under rule 3(a) of our industry and eligibility rule. Of those employees, I believe that the 4 employees engaged in customer service in Victoria would be eligible pursuant to the telecommunications industry rule.

PN1631

So to would be the eight employees involved in sales, which appears to me to be the sorts of outbound sales work customarily performed by CPSU members in Telstra, and those employees, I understand, are employed by the states in New South Wales, Victoria and Queensland. There are a further nine employees engaged in telemarketing about - of the new business and I also believe that they would be covered pursuant to that rule. So to the employees mentioned in paragraph 13 of the clearity statement, who are also said to be covered by the communications services industry sector minimum wage order, which incidently, that minimum wage order has the same definition as telecommunication server. It's actually derived from the CPSU rule. The definition - the incidents of that wage order - the definition of telecommunications is derived from the CPSUs rule.

PN1632

The next statement that I looked at, was that of Nadine Maree Carol, of Global One Communications. Ms Carol says that the principal function of that business is the supply of voice and data products to corporations and wholesale carriers and as such, I say that they fall within the definitions of CPSU through either sub rule 3(a), (b) or (c) based on those descriptions most likely (c) and (b). Of the 123 employees listed at paragraph 6, through those clerical employees listed at paragraph 7 would fall within the telecommunications industry rule, as I understand their functions as expressed here.

PN1633

So to at paragraph 10, the employees engaged in para-clerks, accounts payable clerks and accounts receivable clerks, and incidently I'd mention that those would probably also fall within the definition, although, I would need to know more about it, of what we are calling the "calling rule" and that aspect of the calling rule which deals with accounts and rates, although I wouldn't state that conclusively, I'd need more information.

PN1634

The retail sales employees would also be covered by the industry rule, so to the provisioning employees. Provisioning is a normal function carried on by CPSU members in other telecommunications call centres. Again, at paragraph 19, those employees would also be covered by - it said that the employees - that - at paragraph 19 work in a customer call centre to provide technical trouble shooting advice to Global One employees - they're described at technical officers but based on the information that I have at paragraph 19 and I've seen, I'd say that they are most likely doing sorts of work that we would normally describe in our awards as clerical and administrative, although I'd need more information to state that conclusively. Of the paragraph - of the employees listed at 21 and 22, the information technology employees, would fall within the telecommunications industry rule and the PREI calling rule, those would be employees listed I believe at paragraph 21.

PN1635

The next witness statement that I looked at was that of Gregory John Burke who is the Director of Hutchison Telecommunications. The - Mr Burke, who is the director of Hutchison, says that the principal - or the function of Hutchison is to provide a comprehensive range of wireless telecommunication products. These are mainly provided in the form of home to home mobile services. I also understand from my other knowledge about Hutchison that they also provide a comprehensive range of paging data services. Both of these services fall within the type of work that is - for people that work in relation to this - these services fall within the type of work that is traditionally covered, I thought, by the PREI rule, and my view about that was further affirmed after reading the descriptions included in paragraphs 7 through to 19 of Mr Burke's statement.

PN1636

Those in the table that is provided by Mr Burke at paragraph 8, each of those employees who are either covered by a clerical award or any of the clerical awards would be also covered by the CPSUs telecommunications industry and eligibility rule. I believe that those employees listed at paragraph 19, the 292 employees, - sorry at paragraphs 14 and 15 who are described as network operators, the sorts of work that seems to me to look like the sort of work which normally falls within the definitions contained within the CPSUs calling rule and so to the employees characterised at - sorry, the employees described at paragraph 17. The employees at paragraph 19, the information technology employees would fall within the sort of work that has been traditionally covered by the CPSU as well, under the Telecommunications industry rule.

PN1637

The next witness statement that I looked at, was that of Michael Andreas Voyais, a company secretary of IX-Net Australia, who describes the principal function of his business as a international value added - providing international value added telecommunications network, which as such would put the business of IX-Net within the telecommunications industry as defined by our industry and eligibility rule. Having looked at the employee duties and award coverage described in Mr Voyais's statement I say that those four employees listed at paragraph 9 would be covered by the CPSUs telecommunications industry and eligibility rule. So to would those employees described as management and accounting function employees and marketing and sales employees at paragraph 10. Of the employees listed at paragraph 8, it is harder for me to form a conclusive view, but the work that is typically performed in network operation centres, and given that they have described the work that they have performed, a network operation centre is generally staffed by people, in my experience, of that - of performing the work of that described in the PREIA rule - calling rule namely the operation of apparatus used for cable or wireless telecommunications.

PN1638

The next statement that I looked at was that of Anthony Sheeland, who is the Senior Human Resources and Finance Manager of Macquarie Corporate Telecommunications. Mr Sheeland describes the principal functions of Macquarie in paragraphs 4 through to 7 of the unsworn statement that I've read. Those functions, in so far as they are - in so far as functions described at paragraph 4, denotes providing carrier functions, then they would be carried - they would be covered by the telecommunications industry rule at 3(a). As to the functions described at paragraph 9, that of provision of account management in a various consulting services to assist customers in their telecommunications requirements, I believe, are those which would fit the description of a business which is incidental, ancillary or complementary, and therefore rule 3(b) of that part of our rules - at paragraph 6 it is omitted that Macquarie provides its own voice services to its clients and that is a carriage service, or a supplying service at any rate.

PN1639

And at paragraph 7, the project management of telecommunications facilities also is a - is the provision of a telecommunications service, or something that is incidental, ancillary or complementary to that - complementary to that at the very least. The - I also note that at paragraph 7 those functions that are performed there would fall, on the face of it, within our PREIA calling rule. In addition to that, it is my opinion that the eight account managers would fall within the CPSU industry and eligibility rule.

PN1640

I then view the table at paragraph 10 of the statement, and form the opinion that anyone covered by a state clerks award, namely those in New South Wales and Queensland would fall within the industry and eligibility rule of the CPSU, and I note that it's said that Victoria are also covered by the communications services industry sector minimum wage order, and as I've mentioned before, the incidents of that wage order is based on the CPSU rule in part, so they would fall within our rule - telecommunications industry rule, as well. I'd say the same about those clerical and administrative employees operating out of Tasmania mentioned in that - in that witness statement.

PN1641

Of the employees - the 95 employees mentioned at paragraph 7 - sorry, paragraph 11 of Mr Sheeland's statement, all of those would be covered by the CPSU industry and eligibility rule, and are performing work akin to that which is performed by employees covered by the CPSU pacific access award, in so far as they are providing sales - outdoor sales functions. I say the same about the employees at paragraphs 13 and 14, although, I might have - I have a reservation about what a business analyst might actually be doing, but it seems to me to be - to fall within the industry and eligibility rule of CPSU.

PN1642

The employees at 6 - paragraph 16, also fall within the CPSU industry and eligibility rule. It's difficult for me to form a view about the employees mentioned at paragraph 17 on that evidence alone - on that information alone.

PN1643

The next written statement that I viewed was that of Mr Peter Adrian Hanley, who is the Managing Director of Path Telecommunications. Path is based in Perth, but also employs people in South Australia. It is said that Path is a reseller - the principal function of Path is a reseller, which places them both - which places them within the definition of a telecommunications service within the meaning of our rule. I note that they are licensed to be a telecommunications carrier, although they don't purport that that is their principal function and that is consonant with my research on the company. The 47 employees employed in both Western Australia and South Australia don't appear on the evidence to fall within the definition - to fall within the coverage of any state award or agreement, but based on the information at paragraph 7, I form the view that those would fall within the industry and eligibility rule of the CPSU. So to those - the telecommunications industry rule and eligibility rule, that is. So to those employees at paragraph 8, and 9, and 10.

PN1644

The employees at paragraph 11 are performing functions of a technical nature which would fall within the calling rule of the CPSU that we have been describing herein as the PREIA rule.

PN1645

The next witness statement that I viewed was that of Adrian John Coote, Chairman of RSLCom. Proprietary Limited. At paragraph 3, Mr Coote describes the principal function of RSLCom as multi-channel, multi-brown distribution. I took that to mean, that RSLCom was a reseller, because that was consonant with my research into the company - a reseller of telecommunications services. I have not viewed RSL01 as I was not provided with a copy of that when these documents were served on us, so I cannot comment on what Mr Coote says as described as the business - the functions of RSLCom in that paragraph. The employees described at paragraph 5 of that witness statement - of that statement, would fall within the telecommunications industry and eligibility rule of the CPSU. As would the employees described at paragraphs 6, 7, 8, 9, 10, 11 and 12 of that witness statement.

PN1646

The employees described at paragraph 13 of that unsigned statement appear on the face of it to be performing functions that are identical to those which have been - are traditionally covered by CPSU, in our industry and eligibility rule, although, I would not conclusively state that without knowing more information about those employees.The next witness statement I viewed was that of John Claude Simon who is the chief executive officer of World Exchange Communications. Mr Simon describes the principal function of that business as the provision of integrated voice data and internet services to consumer, commercial and carrier markets. From the I took - and from other research that I conducted into the company, I took it that their business was one whose principal function fell within the definition of the telecommunication service as defined within rule 3A of the CPSU's telecommunications industry and eligibility rule. Of the employees described in paragraphs 5 through to 15 I formed the view that the 105 employees described at paragraph 6, who perform data entry and administrative tasks, would fall within the industry and eligibility rule of the CPSU, that is the telecommunications industry and eligibility rule. I noted that in the statement I read it's not claimed that any of those employees are covered by any state award or agreement, but on the face of the information described there I'd say that they were within our industry and eligibility rule. So too - the employees described at paragraph 7 appear to be employees who would normally fall within the type of work we normally describe as IT work - information technologist work, in our industry and eligibility rules and would traditionally be covered by us. We would - I'd say that those employees would fall within the definition of - those employees would be covered by our telecommunications industry and eligibility rule. Some of them to the extent that they are performing technical telecommunications work may also fall within the calling rule, however, I would not conclusively state that without knowing more information about that - those 21 employees. Of the employees mentioned at paragraph 9, of those would fall within our industry rule - industry and eligibility rule as would those at 10, 11, 12, 13 and 14. I'd say the same about 15 although it's very difficult to make a conclusive statement based on the information in that statement. The final witness statement that I viewed was that of Mr David Leek which I received today. Mr Leek is the member services director of AOL Australia Online Services Pty Ltd, which is described as a joint venture between AAPT and AOL to supply network service for AOL customers. Based on my - on the information in this statement and my knowledge of the company I'd say that they fall within our industry and eligibility rule, the telecommunications industry rule - and eligibility rule to be specific. Of the employees listed at paragraph 9 I'd state for certain that all of those employed - sorry, mentioned at paragraph 5 would fall within those industry and eligibility rules. There was not enough - I'm unable to form a view on the others employees covered by that witness statement.

PN1647

Thank you, Mr Jones. I have no further questions.

PN1648

THE COMMISSIONER: Thank you, Mr Jones.

<THE WITNESS WITHDREW [2.45pm]

PN1649

MR TAMPLIN: While I promised my witness he could possibly take those exhibits with him - - -

PN1650

THE COMMISSIONER: He'd like them return?

PN1651

MR TAMPLIN: Just for the moment.

PN1652

THE COMMISSIONER: Yes, fair enough. Now, Mr Parry. I examined the transcript over the luncheon adjournment and - I'm particularly looking at paragraph Numbers 31 and 32. I apologise if I've missed any others but there seemed to be the nub of the issue that's seen to be different from paragraph 53 in the written submissions. Please correct me if I'm wrong but in the earlier proceedings it seemed to be put on the basis that there might be some difficulty in the Commission looking at section 111AAA ahead of forming a view as to the scope of the industrial dispute.

PN1653

In paragraph 53 a positive submission is put that the Commission should cease dealing with the industrial dispute prior to finding the dispute.

PN1654

MR PARRY: Yes, in section - paragraph 32 you're referring to - Commission, is paragraph 32 of exhibit P1?

PN1655
THE COMMISSIONER: No, I'm referring to the transcript - PN32 I'm sorry.

PN1656

MR PARRY: Well, perhaps to go back one step, the - there was filed in those proceedings and relied upon exhibit P1 and that raised Number 1, section 111AAA of the Act. It identified certain state awards. It said it's mandatory and paragraph 32 said:

PN1657

Reliance is placed by the above respondents on section 111AAA and, if necessary, an application is made by those respondents under this provision.

PN1658

Now, that application - the words "if necessary" are only there to cover the contingency that there is not necessary to be an application made under section 111AAA only that the matter is raised and relied on, so we did - - -

PN1659
THE COMMISSIONER: That was tendered and unfortunately the new transcript doesn't help us as much as it used to in the past. But that was tendered at PN23.

PN1660

MR PARRY: Yes.

PN1661
THE COMMISSIONER: And then arising out of that there was some exchange at PN31 and 32. Now, if I can put it in this context, given that your clients challenge the capacity of the CPSU to enrol any persons and therefore an industrial dispute cannot exist, what work would section 111AAA(2)(a) do in those circumstances?

PN1662

MR PARRY: Commission, firstly, we have raised and relied on section 111AAA. In the transcript to which you're referring, there was an application by the CPSU for a dispute finding. We, in effect, allowing the matter to proceed, that is, that the union calls evidence with regard to the rule so that we didn't delay these proceedings by going through a multiple stage process. Now, we recognise the Commission needs to consider the eligibility rules of the CPSU but rather than there being an awkward and unwieldy two-step process it was our position that the Commission could proceed to deal with the evidence and material that the union wanted to call with regard to eligibility and also deal with our application in respect of section 111AAA.

PN1663

In our submission, that's the best way of dealing with the matter. We've raised it. We say we do contest that there is an industrial dispute but recognising that if it's open to the Commission it certainly will be argued that there is an industrial dispute in respect of some of the employees. In that event, we will certainly be relying on the operation of section 111AAA.

PN1664

Now, we would submit that the appropriate way to proceed is to hear the evidence of all parties with regard to the notification of dispute finding and with regard to section 111AAA. If the Commission forms the view - and this is consistent we say with the AMOU case - if the Commission forms the view that there could be an industrial dispute within the terms of the Act then it should give consideration to the operation of section 111AAA. That's the way that we submit and have clearly put in our submissions as to the appropriate way to proceed.

PN1665

THE COMMISSIONER: How do I form that view? Do I publish a decision?

PN1666

MR PARRY: It can all be one part of a composite decision, that is, I form a view that there was - for example, there is an industrial dispute between X employer and X union in respect of Y category of employees. In respect of that category of employees section 111AAA operates in respect of some or all of them.

PN1667

THE COMMISSIONER: And before the Court in a finding deal with the application?

PN1668

MR PARRY: Yes.

PN1669

THE COMMISSIONER: I see.

PN1670

MR PARRY: So that then the Commission can make a proper recording of industrial dispute in respect of those employees if there be some that fall outside the operation of section 111AAA.

PN1671

THE COMMISSIONER: I hear the evidence, the arguments, reach a conclusion as to whether or not a dispute does exist or does not exist. Before recording such a finding deal with section 111AAA?

PN1672

MR PARRY: That's so. We'd say consistent with the view of the Full Bench in the AMAU case. If the Commission pleases.

PN1673

THE COMMISSIONER: Yes. Do you wish to add anything to that, Ms Jones?

PN1674

MS JONES: Yes, if I may, merely because - I think that we agree with Mr Parry in the sense of the process or the steps to be followed because, no doubt, you would have read our outline of contentions and we did go to that point. But provided that - we have been operating on the basis that to date, because of the foundational requirements under section 111AAA the section does not operate and that is because - there are two foundational requirements and we dealt with it at paragraph 106.

PN1675

One, is that you have to be satisfied that there is an industrial dispute and that clearly is the issue of eligibility. Secondly, you have to be satisfied that there are particular employees whose wages and conditions are governed by state awards or state agreements. And we say that to date you cannot be satisfied about that. There is some evidence being put, or assertions being made, but as to the particular employees we're not in a position yet - sorry, you are not in a position yet to make that judgment.

PN1676

So, the reason I'm going through this is because we have not yet put our evidence in relation to section 111AAA. We have put our evidence squarely in relation to the issue that has been subject to the objections which is eligibility. So, we agree to the extent that the Commission is required to form a view and then section 111AAA application comes on for determination at which point, we submit, that those requirements - well, obviously the industrial dispute will have been satisfied but there is the additional one of particular employees whose employment is covered, provided that is clear and we are not in any way prevented from putting evidence in relation to section 111AAA because obviously there at some point we have to deal with the public interest test if you get satisfied as to those foundation requirements.

PN1677

And we have not dealt with that yet because it is our very strong view that we put very earlier on that section 1111AAA does not yet operate. We were going - - -

PN1678

THE COMMISSIONER: I was sufficiently concerned because the - and Mr Parry has cleared it up for me now - but the terms of paragraph 53 read in conjunction with the decision in AWU Queensland led me at a cursory view to reach the conclusion that what Mr Parry and his clients were saying to me is that I should stop now. But if I read Queensland, that they say, well, up until the finding of dispute if somebody - as soon as somebody raises it you've got to stop and you must cease dealing with it unless you form the view. But Mr Parry has clarified the matter for my part.

PN1679

MS JONES: Right, that's fine. We would say that Queensland actually states - and it's in the conclusions and I won't go through it - that the Commission does have to be satisfied that particular employees are covered by state awards and if it says not - it quite clearly states - I think it's paragraph 7 in the conclusions - that section 111AAA does not operate. So, it's not merely a satisfaction that there is an industrial dispute in the meaning of section 4 but also satisfaction as to the particular employees. And, of course, there are non award employees as far as we can see. There are employees covered by minimum wage orders. It's not really clear yet who might be those particular employees if that application was proceeded with.

PN1680

THE COMMISSIONER: Yes, well, I was looking at the first hurdle. In the event that I find that the union doesn't have eligibility then section 111AAA has no work to do.

PN1681

MS JONES: That's right. There would be nothing there to pursue. Exactly, Commissioner.

PN1682

MR PARRY: Well, that's the first hurdle but section 111 - once the Commission is satisfied that there are state awards you are prevented from proceeding except in certain circumstances. Now, I'm not understanding it's going to be seriously contested but state awards don't operate. Now - therefore, it's a real application. It's not as though we have to get into an extended debate about whether they operate. We're really talking here about the process that the Commission should follow.

PN1683

Now, we've attempted - the process we've put forward is one to get everyone to put their arguments with regard to this matter and we don't have to come back again. I mean, I act for 11 employers and they've put their statements. They clearly deal with this issue and raise it. Our concern is that the matter be dealt with in these proceedings and we've made that clear from the very start.

PN1684

THE COMMISSIONER: Yes, you're not wrong, Mr Parry. I'm just acting out of an abundance of caution, that's all, to make sure that I'm not misunderstanding anybody or that I've not misread a submission because it's an important constraint that I have under the Act, together with section 36(3) which has been complied with.

PN1685

MR PARRY: I'll stay standing just for the second, Commissioner. It's a matter that the President has to give consideration to.

PN1686

THE COMMISSIONER: Yes, the President has done that and issued a decision in terms of the application will be dealt with by me.

PN1687

MR PARRY: Yes, well, it's a matter still with the Commission.

PN1688

THE COMMISSIONER: Now, that's the extent of the evidence that you wish to call?

PN1689

MS JONES: Yes, in relation to eligibility, yes. Because yet we still have not - which really goes to my point that at the - Mr Parry, on behalf of the AIG, has stated that there - in the initial P1 they say:

PN1690

Several of the respondents served by the applicant's log of claims are covered by various state awards.

PN1691

Now, until we got the written statements sort of over the weekend and into the beginning of these proceedings, there was no indication as to which employees - which particular employees were governed by wages and conditions of state awards. So therefore we were not in a position to put any evidence, for example, on the public interest issue that you raised before the luncheon break.

PN1692

THE COMMISSIONER:

PN1693

MS JONES: Because we don't know, we didn't know as to who the particular employees might be. And conclusion 7, which is at page 11 of the AWU decision that we've been referring, print P4289, says quite clearly:

PN1694

If, as a result of determining an application under section 111AAA or otherwise the Commission is not satisfied that a State award or State employment agreement governs the wages and conditions of employment, of the particular employees, section 111AAA has no operation.

PN1695

So we're not really - that's obviously in the witness statements. We want to look at that. We don't have the awards. We don't have that evidence before us. So therefore we need to go through that process first, because if you are not satisfied that those particular employees are not governed in their wages and conditions by a State award or agreement, then it's quite clear that section does not operate. If you are satisfied it operates and then we have to deal with the public interest test.

PN1696

THE COMMISSIONER: Thank you, Ms Jones. In any event, are you content to lead your evidence now, Mr Parry?

PN1697

MR PARRY: Well, I'm content to lead evidence but I don't think anyone should be in doubt that I'm leading evidence with regard to the eligibility and the section 111AAA matter. I don't - we've organised the witness to come along on the basis that they're going to give evidence dealing with those matters. We would expect that to be - that's the evidence we're presenting and we certainly don't want to be bringing back people again that haven't been asked questions in cross-examination that would need to be raised.

PN1698

MS JONES: If I could clarify. We will deal with the evidence that it has brought forward and we're talking about our evidence, not their evidence.

PN1699

THE COMMISSIONER: Yes. Who do you wish to call first, Mr Parry?

PN1700

MR PARRY: Mr Perkins, who won't have anything to do with section 111AAA. I doubt that he's heard of the section.

<BRIAN RANDALL PERKINS, SWORN [3.04pm]

<EXAMINATION-IN-CHIEF BY MR PARRY

PN1701

MR PARRY: Please sit down, Mr Perkins. Mr Perkins, what's your full name and address?---Brian Randall Perkins, of 9 Kalang Avenue, Killara, New South Wales.

PN1702

What's your occupation?---I'm a telecommunications consultant.

PN1703

Do you have before you a document headed, Witness Statement?---I do.

PN1704

With the leave of the Commission, there are about four questions I would like to ask Mr Perkins.

PN1705

THE COMMISSIONER: Yes. Just as a matter of housekeeping, Mr Parry, would it be convenient to mark the outline of submissions at this stage as well, the ones that were delivered on 1 March? Then I could proceed then to mark the witness statements.

PN1706

MR PARRY: If the Commission pleases.

PN1707

THE COMMISSIONER: The outline of submissions on behalf of the respondents presented by the Australian Industry Group will be P2. Thank you, Mr Parry.

EXHIBIT #P2 OUTLINE OF SUBMISSIONS

PN1708

MR PARRY: Perhaps before continuing with Mr Perkins, I should indicate that I haven't opened our case, but I'm assuming exhibit P2, the outline of submissions, should outline those matters upon which we rely.

PN1709

THE COMMISSIONER: Yes.

PN1710

MR PARRY: If the Commission pleases.

PN1711

Mr Perkins, do you have a copy of that witness statement before you?---I do.

PN1712

If I could take you to paragraph 17. You refer in paragraph 17 to a statement about telecommunications carriers employing functions associated with radio telephony or telephony which utilises beam, cable and/or cable technology. What to your understanding does the term "beam" refer to?---A little further down in my paragraph 17 I do reference that. It's a reference to high frequency radio which was used many years ago by the Overseas Telecommunications Commission for communicating with other countries. It's virtually not used today. Satellites and under - submarine cables have taken over from where - from the - for the purpose that beam wireless was used.

PN1713

And the term "cable" is used also in that extract. In the context of this broad industry what does cable mean to you?---In that context it undoubtedly means submarine cable, that is, cable under the sea.

PN1714

Does the word "cable" - how does the word "cable" relate to the word "wire"?---Wire generally is taken to mean overhead wires, which of course we see evidence of that still in the country, but not much in the city. Generally that would be open wire lines, as they were then known, and cable would be cable under the ground.

PN1715

Now, over the page you refer, in paragraph 19, to physical cable and physical cable technology, in other words, external plants such as line, conduits, optical fibre. What equipment or apparatus is used in respect of cable such as line, conduits or optical fibre?---Well, it depends on whether we're talking about the insulation or the maintenance. As far as insulation is concerned cables are normally put in the ground in one of two ways. They're either ploughed directly into the ground, which is the way it's done mostly in our - except in built up areas, where we still use the - the idea of digging up the ground, putting in conduits which are continuous pipes, and then pulling the cables into those and covering the ground over again so that they're concealed, and there are manholes every - every few hundred metres to enable technicians or cable - cable technicians to get access to those cables, should they need to do so. So that's the two types of cable technology I think we're talking about there.

PN1716

What about the operation of cables?---Well, the operation of cables, the people who are engaged in those would only need to have access in most cases to the manholes where they could go to it to conduct tests or they may go there to connecting new cables or to change some - the arrangements of the cables.

PN1717

You talk about conducting tests and I think joining, what sort of equipment is used to do testing or joining?---Well, testing is normally done from the ends of the cables and tones can be put on cables. There's very - I'm not very familiar with the modern cable - the latest cable technology. I worked on cables many years ago and that was the way we did it the. We put tones on cables and thereby we were able to identify where a break might have occurred. Generally speaking though, those tests are done from the end and the cable break is located pretty accurately and then it's a matter of digging up the cable or getting to it and repairing the fault.

PN1718

Now, if I could take you to the end of your statement, you want to delete paragraphs 30 and 31?---Yes, please.

PN1719

Subject to that, is the statement true and correct?---It is.

PN1720

I tender that statement.

PN1721

THE COMMISSIONER: Thank you. P3.

EXHIBIT #3 STATEMENT BY B.R. PERKINS

PN1722

MR PARRY: If the Commission pleases.

PN1723

THE COMMISSIONER: Do you wish to ask any questions, Mr Tamplin?

PN1724

MR TAMPLIN: No, I don't.

PN1725

THE COMMISSIONER: Thank you. Ms Jones?

<CROSS-EXAMINATION BY MS JONES [3.11pm]

PN1726

MS JONES: Thank you. Mr Perkins, I presume that whilst you are a consultant to Corrs Chambers and Westgarth, you're not a lawyer?---I'm not a lawyer.

PN1727

You go there as your expertise as an engineer, is that true?---Engineer and manager - and manager, yes.

PN1728

At paragraph 17 you comment on - and Mr Parry has taken you to that, to what the concept of beam, cable and cable technology referred to in the context of rule 2(g) of the CPSU rule means - in fact, you say that it is a reference to specific types of cable and high frequency. No doubt you have read that particular rule in the CPSU?---Yes, I have.

PN1729

That's rule 2(g)?---Mm.

PN1730

Your familiar with it?---I've read it.

PN1731

No doubt having read it you've studied it sufficiently to express an opinion on it, as you do in the statement?---I believe so.

PN1732

Is the rule that you read, the part of the rule in Mr Puzniak's paragraph 11, or have you actually read the full rule?---No, I've read - I've read the extract that's in - basically in 9, I guess, of Mr Puzniak's - - -

PN1733

In paragraph 9 of Mr Puzniak's statement. Have you had an opportunity or have you been given by the AIG or Mr Parry or the instructors a copy of the full rule, which is rule 2(g)?---No, I haven't.

PN1734

I might provide him with a full copy of that rule. Perhaps I should have - before I take you there - you noted that you weren't a lawyer and I accept that, and therefore presumably it's your experience in telecommunications which you refer to as your expertise in the telecommunications industry at paragraph 13, that enables you in your view to express the opinions that you do in this witness statement?---Yes, that's right.

PN1735

Now, if you could compare Mr Puzniak's rule - sorry, the extract in Mr Puzniak's statement which is at paragraph 9 of his statement, as you pointed out with the rule, you will notice that there is a bit of truncation there. It's a long rule, so I'll take you through that slowly. If I'm going too fast or it's not clear, please pull me up. You will note at paragraph 9 Mr Puzniak's statement that the sixth line of Mr Puzniak's statement there are the words at the beginning which he says, "apply to the land, sea or air", and then it goes on into Mr Puzniak's statement. If you have a look at the extract that I've given you which is a full extract of the rule, and again, it's down to the sixth line, you will see those words, "apply to the land, sea or air". And it then goes on, and this is what is missing, "and shall include all persons engaged or employed as marine radio operators and so forth", and then picks up the rule at - and it's a bit difficult, about halfway down where it says:

PN1736

Pacific and all radio engineers, radio technicians, radio mechanics, riggers and so forth receiving stations throughout Australasian islands of the Pacific -

PN1737

and then that part of the OTC rule?---Mm.

PN1738

Is that clear? It's a bit hard to read that whole rule and they truncated this?---No, it seems - seems fair enough at the moment.

PN1739

Now, in your statement you say based on - and you've just clarified for me and I wasn't sure in the beginning - that you read the rule 3(g) in a particular way. The reference to beam, cable or cable technology - sorry, 2(g), as a reference to:

PN1740

High frequency radio and submarine cable technology used by the Overseas Telecommunications Commission of Australia, OTC, when it existed prior to around 1992.

PN1741

Having taken you to the full rule, would that still be your position that the words "beam, cable and cable technology" are in fact confined to that meaning?---No. No, I'd have to agree with the inclusion of the marine aspect certainly broadens that.

PN1742

Perhaps I should have clarified, when you said therefore where you refer in your paragraph 17 to "beam, cable and cable technology", those words are used quite often. Were those words the words from the first part of the rule or were they - appear later on in the rule after the "and shall include"?---I'm sorry, I'm not quite sure - with you now, you've lost me.

PN1743

Okay. The words, "beam, cable and/or cable technology" do appear in the first part of the rule, that's the first six lines?---Yes, yes.

PN1744

They're conveniently referred to as that, and then the remainders are referred to the other parts of the rule?---I understand that.

PN1745

Were you referring to the words in the first part of the rule or the other parts of the rule?---I was referring to all the references in Mr Puzniak's statement.

PN1746

I see, all his references to "beam, cable and cable technology"?---Yes.

PN1747

You said, I think, in answer, "It certainly broadens" when you read the words "and shall include", it certainly broadens the meaning. Would you concede that you've actually formed an opinion in paragraph 20 based on a misreading of the rule?---No. I read the - well, I read Mr Puzniak's statement - it was his statement that I was - that I was putting my interpretation upon, not - not necessarily the rule. I didn't say that I was. I was referring to that - to his statement which is now obviously an extract. As his statement was written I - I have the view that it was primarily - or is directly talking about international operations.

PN1748

I see. So the paragraphs later where you say, "The rule is limited to international communications, not domestic", arises out of that?---Yes, that's true.

PN1749

At paragraph you refer to the concept of radio licence inspection space, and I am - - -?---I'm sorry, I refer to it?

PN1750

I'm sorry, on paragraph 18 of your thing you say that - and we've clarified that we're talking about your opinion that those words were confined to international telecommunications was based on the rule that was in Mr Puzniak's statement, not rule 2(g) as it actually stands. You say that you act on behalf of various listed companies and they're listed in your paragraph 14, is that correct?---That's correct. I don't know whether I act on their behalf, I give expert witness on their behalf.

PN1751

Thank you for clarifying that, that is right, you are giving expert witness on their behalf. Do you agree that all telecommunications carriers utilise wire, cable and cable technology to transmit the telecommunication signal?---Utilise, yes, they don't necessarily own it or operate it but they do - they obviously do use one of those technologies.

PN1752

Does AAPT, based on your knowledge of that company and again you are giving expert witness - evidence of their behalf. Does AAPT utilise wireless, cable and cable technology to transmit a telecommunication signal?---Yes it does.

PN1753

That Clarity Telecommunications Proprietary Limited utilise wireless, cable and cable technology to transmit telecommunications signals?---I have no idea. My experience is only with AAPT because I was recently employed by them, but as far as the others are concerned I can't comment.

PN1754

I will not go through that list?---No.

PN1755

It is really AAPT that you have the detailed knowledge of. Fibre-optic cable is used more and more in transmitting telecommunications these days is it not?---Yes, that's right.

PN1756

And fibre-optic cable is used within Australia to transmit signals?---Yes.

PN1757

I think you mentioned - - -?---Sorry, did you ask the same question twice then, I'm not sure what you meant by your first question. When you clarified it seemed to be the same question. Were you asking me whether fibre-optic cable is used for international telecommunications?

PN1758

No, just more like the telecommunications generally?---No, sorry, I just want to be sure.

PN1759

You mentioned that you referred to beam technology and this may have changed now that we have clarified what part of the rule or the extract you were relying on, but you said that beam refers to high frequency beam. Is beam wireless, a branch of wireless transmission?---Well it was when it was being used, as far as I'm aware it's not used any longer. I'm not familiar - I couldn't say it's not, but I'm not aware of it being used now. It's a very old technology.

PN1760

When you were dealing with the cable technology, you said that you were not familiar with the latest cable technology?---Well it's the cable testing techniques that they are a bit more sophisticated these days then when I was using them, but they basically do the same thing, they locate the - they pinpoint the location of a fault and that sort of thing.

PN1761

At paragraph 20 and I think again this may have been clarified but I just want to be sure, you said that it was your understanding that rule 2G as it was intended as at its drafting to imply - apply only to employees of OTC transmitting and receiving stations, is that a statement that you made or an opinion that you made based on your reading of the extract of the rule in Mr Puzniak's statement?---Yes it is.

PN1762

So it is not something that you know was - occurred at the time of the drafting?---No, no, I wasn't. I don't think I was around then.

PN1763

At paragraph 21, you refer to rule 2G and you say some of the jobs are occupations - or jobs or occupations existing at the time of the rule are obsolete or - but they may exist in the telecommunications industry generally in different forms, is that a correct summation of what you said?---Yes, yes. If you go through that very long list in G, I could identify certain occupations that existed, but many of them have long since disappeared.

PN1764

Can I take it then because you are - and then you go on over all my reading I should say at paragraph 22 that rule 2G was designed for a technology that is now obsolete and it is almost impossible to translate the jobs and occupations as describe into current telecommunications in any meaningful way. Can I take from that that what you are saying is that if the job occupation or classification in a rule which had a particular form at the time the rule was drafted, changes in form such that the classification although it is described as an obsolete term, then the rule does not cover the new form?---Well I was referring particularly in line 21 for example, teleprinter operation, beam and cable accounting and checking, phonogram clerks and these are occupations just don't exist and I could go through that whole list and tell you which ones I think still exist and which ones don't, but a great many of them have long since disappeared.

PN1765

Right, but as to the terms set out in the first part of the rule which are radio telephony and cable technology and cable operations, you say that they are obsolete?---Well you'd have to take them one at a time. Radio telegraphy wouldn't exist - - -

PN1766

Telephony, sorry?---No, you said that one, just reading from the rule, radio telegraphy wouldn't exist today, radio telephony does, radio television, I've no idea what that was supposed to mean, it's a very quaint combination of two things, radio and television. I think we could say that probably doesn't exist in the form that it was intended. Radio facsimile doesn't exist today, radio signals, well now that would cover the entire radio spectrum so I think we'd discount that probably because it's so general to be meaningless. Then we get into cable operations, cable technology, cable engineering, yes those three would still exist today. Teleprint operation, no, radar operation, yes, beam and cable accounting and checking, no. So you've got to go through a very - go through them one by one and I could make a statement about each and every one of those if you wish me to, but you'd probably be bored.

PN1767

Well, no not bored, probably exhausted, but I would just like to clarify that certain of those terms you do not regard as obsolete and you have done that for us, thank you?---Well what I was saying is that those terms that I've said are obsolete don't translate into anything today.

PN1768

Yes but the other terms that you said are not obsolete obviously do translate into something?---Into something, yes, but we'd have to talk about it with some care. I applied and read that those really applied to OTC for example, cable engineering and cable technology would refer to submarine cables and that would have no relevance to the companies who are listed here. They don't operate or maintain submarine cables and submarine cables are quite different from domestic cables.

PN1769

Right but that is, as I understand it, because you read the rule as drafted or set out in Mr Puzniak's extract, not the whole of the rule as is now before you?---Yes, I agree with that.

PN1770

You do refer to the OTC, PRA, PRIE[sic], as being rules being confined to the OTC and what it did at the time and I understand that you're now saying you have a different perspective based on the whole rule. Are you aware that PRA used to represent employees who operated wireless and cable technology for telecommunications purposes during and after the existence of OTC?---No, I thought my knowledge of the PREI was somewhat limited. I was certainly aware of it at the time. It was mainly the that it covered broadcasting stations, television stations and OTC. If it covered other companies I was unaware of it. Obviously, it covered civil aviation by reading this rule.

PN1771

And you've mentioned television I think?---Yes. Yes, all forms of broadcasting. That was their main - main focus I believe.

PN1772

Are you aware that the CPSU does represent the CPSU being the whole body with the - in which that rule appears - represents technical officers and technicians in both wireless and fixed line technologies in Telstra?---No.

PN1773

Do you have a knowledge of who represents whom in Telstra? I won't pursue it if you don't?---No, my understanding was that the ATEA and the successor, which I think is the CEPU, as the primary union with coverage of Telstra.

PN1774

I'm not talking about the primary union but whether, in fact, the CPSU does represent such - okay, that's - I've finished with my cross-examination. Thank you, Mr Perkins.

PN1775

THE COMMISSIONER: Mr Parry?

<RE-EXAMINATION BY MR PARRY [3.31pm]

PN1776

MR PARRY: Mr Perkins, you were asked about - at the beginning, about companies that utilised cable and you said, "That doesn't mean they necessarily own or operate the cable". Do you remember giving that answer?---Yes, I do.

PN1777

What did you mean by that?---Well, most companies don't have their own cable operations groups. They - these days the normal arrangement is to contract - whoever they contract - such as Leightons - they're quite big in this area - or even the Telstra subsidiary, NDC, to install - sorry, install and maintain cables on behalf of the operating companies such as AAPT or whoever. I don't think any of those companies, to my knowledge, would have any cable staff - cable technical staff on their staff. And so, most of those positions that we're talking about - cable technology and cable engineering and so on, would be done by other people under contract.

PN1778

And the repair and digging and maintenance equipment would be operated by those contract companies and their employees?---That's right. From my knowledge of AAPT, the company I was with, there was certainly no cable people there at all. All that work was outsourced.

PN1779

And you were handed the rule - would you still have that document before you? Perhaps if we could - you were asked some questions - my learned friend took you through the first part of that which dealt with radio telegraphy, radio telephony, radio television and you gave certain answers and were asked about whether they continued to exist and in respect of beam and cable accounting and checking you said it doesn't exist. Why did you say that?---Well, because beam radio is not a technology that's in use any more. Cable accounting, I'm not - I can't imagine what that would be. Cable accounting and checking would be presumably some sort of accounting for the use of the cable or something of that nature. I can't even imagine what that is. I can't think of any comparable job that's in operation today that would be - would be called cable accounting and checking. It might - it must have had some special meaning back in the time when it was written.

PN1780

But it has, in your experience, no meaning now?---I can find - I can think of no job that would be covered by such a title.

PN1781

Now, you were given the full rule which included some parts which weren't in Mr Puzniak's statement and there was reference to firstly, various marine radio positions and then reference to radio engineers, radio technicians, etcetera, engaged on broadcasting stations. Now, does the term "broadcasting stations" have any particular meaning in the communications area generally?---Well, it only relates to radio and television broadcasting. It has no relevance to telephony.

PN1782

And it goes on and refers to:

PN1783

Other employees, radio engineers, radio technicians, radio operators -

PN1784

and over the - it goes on and refers to "air radio stations". Do you see that?---Yes.

PN1785

Do you know what air radio stations are?---Yes, - well, I can't be absolutely certain but I can be fairly sure it would be to do with stations operated these days by Air Services Australia for providing communications between airports. For example - you know - Sydney and Melbourne, Sydney Canberra. They would have a string of air radio stations along that, because on those routes - which would provide beams and communications. So I think that air radio stations simply are radio stations operated by Air Services Australia today.

PN1786

And it goes on the rule in the part that you've just been handed and refers to "coastal radio service stations". Do you see that - various positions?---Yes.

PN1787

Do you know what coastal radio service stations are?---Yes, they're operated - they were operated by AGC for many years and they provide land to sea communications for vessels.

PN1788

The rule goes on and refers to various jobs on beam wireless transmitting or receiving stations, do you see that?---Mm.

PN1789

Do you know what that refers to?---Well, that refers to the old high frequency radio stations that were operated by AGC to beam signals to the various parts of the world at different times - times of the day. They would beam signals to the United Kingdom, Europe, Asia, and so on, to provide telecommunications services to those areas. But these days that's just totally done by submarine cable and satellite.

PN1790

And further down the page you'll see a new paragraph started "Provided", do you see that?---Not yet. I'm working at it. Yes, over the page.

PN1791

And it refers:

PN1792

Provided that nothing shall be - herein shall be taken as = = =

PN1793

and so forth, down to:

PN1794

...transmitting, receiving, aviation, radio service depots and/or telegraphic or cable stations.

PN1795

What are telegraphic station?---Well, they - - -

PN1796

Do you have any knowledge of that?---Well, yes. That goes back a long way too. We could probably start with the overland telegraph in the 1850s but those telegraphic stations were stations that were repeater stations effectively where the message was repeated to the next section. So telegraphic stations are a very, very old technology. Cable stations are really - I think in that context - refer to the end point of submarine cable as to the stations at the end points, or at points wherever the cable would land - on land, there would be a cable station where the cable was - to which the cable was connected.

PN1797

So, cable stations are inpoints?---Yes.

PN1798

I have nothing further if the Commission pleases.

PN1799

THE COMMISSIONER: Thank you very much. Yes, thank you Mr Perkins, you're excused, thank you for your evidence.

<THE WITNESS WITHDREW [3.41pm]

PN1800

MR PARRY: Commissioner - - -

PN1801

THE COMMISSIONER: We are ahead of time, are we?

PN1802

MR PARRY: We are skating along. We don't have a witness available now.

PN1803

THE COMMISSIONER: Very well. We will resume at 10 o'clock tomorrow morning.

PN1804

MR PARRY: Yes and we will then proceed to present the corporate persons that have filed statements.

PN1805

THE COMMISSIONER: Ms Jones?

PN1806

MS JONES: I wonder if we might be given some sort of schedule so that we can have an idea of who is in what order given there are a number of them?

PN1807

MR PARRY: We will advise Ms Jones as soon as we are aware of what time people are coming - one of out 10 - I will do my best - we will advise her who is coming first, second and third and after that it might get a bit vaguer. I will do what I can.

PN1808

THE COMMISSIONER: With a dispute about telecommunications, I think we can try to find that out.

PN1809

MR PARRY: It will be - I will advise by carrier pigeon.

PN1810

MS JONES: And just if we might - we presume because it is raised in the statements that we will provided with copies of the various awards that are referred to - I just want to be clear that we will be provided with the various awards that are referred to in the statements?

PN1811

MR PARRY: Well, yes. I was wondering if the Commission needed the whole award or a coverage of the award, presumably the whole award but we will advise Ms Jones and provide as much material as we can possibly collect overnight.

PN1812

THE COMMISSIONER: Thank you. Mr Tamplin?

PN1813

MR TAMPLIN: I rise to make the point that our witness too also has or is attempting to fit within business requirements. So, a bit of latitude may be necessary for all sides.

PN1814

THE COMMISSIONER: Well, if you can liaise - if the three advocates can liaise and slot people in so people aren't inconvenienced and we have the maximum chance of completing the matter this week. Thank you, I will adjourn.

ADJOURNED UNTIL 7 MARCH 2001 [3.44pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

STEPHEN PATRICK JONES, ON FORMER OATH PN1195
CROSS-EXAMINATION BY MR PARRY PN1195
CROSS-EXAMINATION BY MR TAMPLIN PN1501
RE-EXAMINATION BY MS JONES PN1584
WITNESS WITHDREW PN1649
BRIAN RANDALL PERKINS, SWORN PN1701
EXAMINATION-IN-CHIEF BY MR PARRY PN1701
EXHIBIT #P2 OUTLINE OF SUBMISSIONS PN1708
EXHIBIT #3 STATEMENT BY B.R. PERKINS PN1722
CROSS-EXAMINATION BY MS JONES PN1726
RE-EXAMINATION BY MR PARRY PN1776
WITNESS WITHDREW PN1800