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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:(02) 9238-6500 Fax:(02) 9238-6533
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER SMITH
C2001/5444
COMMUNICATIONS, ELECTRICAL,
ELECTRONIC, ENERGY, INFORMATION,
POSTAL, PLUMBING AND ALLIED
SERVICES UNION
and
TELSTRA CORPORATION
Notification pursuant to section 99 of the
Act of a dispute re non-metropolitan Victorian
Telstra employees
SYDNEY
10.12 AM, FRIDAY, 30 NOVEMBER, 2001
Continued from 9.11.01 in Melbourne
Adjourned sine die
PN195
THE COMMISSIONER: Is there anything else that you wish to put Mr Reitano?
PN196
MR REITANO: No, Commissioner, not at this stage.
PN197
PN198
THE COMMISSIONER: Mr Dalton, I don't require you to take Mr Bennett through all this. I have read the background material. Just anything you wish to add to it.
PN199
MR DALTON: I wasn't intending to traipse through all the details.
PN200
Mr Bennett, you are employed by Telstra as the general manager customer service regional service operations for Victoria and Tasmania?---That's right.
PN201
You have been in that role for about seven months and you have been employed by Telstra for about 20 years?---That's correct.
PN202
Have you prepared a statement for the purposes of this proceeding?---I have.
PN203
Do you have a copy of that in front of you?---I do.
PN204
Are the contents of that statement and the attachments true and correct to the best of your knowledge?---They are.
PN205
Yes, I tender that, Commissioner.
PN206
PN207
MR DALTON: No questions, Commissioner.
**** BRIAN DOUGLAS BENNETT XN MR DALTON
PN208
PN209
MR REITANO: Mr Bennett, I think you say in your statement you have been employed by Telstra for 20 years?---That's right, yes.
PN210
You would agree with me that other than putting aside 2001, for all of those 20 years Melbourne Cup Day in Victoria for Telstra employees has been treated as a public holiday?---That's right.
PN211
For as long as you can remember?---Yes.
PN212
In August this year when Telstra suddenly announced that it would not be a public holiday for all employees, that was the first time there was a departure if you like from the policy that had been applied for the previous 20 years?---I don't think it was in August this year. I think it was last year prior to Melbourne Cup Day when our then general manager, Ken Sheargold, made the intention quite clear that we wish to stop at that point.
PN213
It will be a lot quicker if you deal with my questions. The first time that Telstra departed from the policy of allowing all of its employees to have Melbourne Cup Day as a public holiday was this year, correct?---We put it forward last year. This year we actually put forward that we intended to do something about it at this point of time, yes.
PN214
Last year you intended to do the same thing but backed away?---I wasn't involved last year.
PN215
Is it correct to say that the Telstra countrywide business unit has no field workforce?---That's true.
**** BRIAN DOUGLAS BENNETT XXN MR REITANO
PN216
THE COMMISSIONER: Has what, what force I am sorry?
PN217
MR REITANO: No field workforce.
PN218
Were you involved in the decision to withdraw or change Telstra's policy in respect to Melbourne Cup Day?---I was.
PN219
Did you consult with anyone from the CEPU or any other union?---No, I consulted with our chief of staff. Bill Scales in the first instance through his office and I formally notified Jim Kane of the CEPU with a letter.
PN220
You formally notified him of the decision?---I did.
PN221
But prior to notifying him of the decision, you had no discussions with him about it?---Not personally. To my knowledge that was being handled through our HR office.
PN222
I understand that. That was something that wouldn't normally fall within your jurisdiction, is that fair?---Because it was a whole of business decision, not just my particular business unit.
PN223
It would be something that someone else would deal with, not you, is that fair?---It is something in terms of looking at the policy and how we might apply it. We would have our HR department do it and I would have some input into that.
PN224
Negotiations with unions about the withdrawal of a long standing entitlement to treat Melbourne Cup Day as a public holiday is something that you would not normally deal with, correct?---True.
**** BRIAN DOUGLAS BENNETT XXN MR REITANO
PN225
The customer service guarantee that you speak of in your statement, that has been something that has been in place for a number of years?---It has been.
PN226
It is not something that only came into existence in 2001?---No, but it is something that did change in terms of previously it was up to the customer to apply for payment. In July of last year it became automatic payment to customers.
PN227
The customer service guarantee, can you assist me about when, I mean I won't tie you to a date but when was it first introduced?---Several years ago, I am not sure of the exact date.
PN228
If we said 1996 would that, give or take a year, perhaps be about right?---I think it would be closer to about 1999.
PN229
1999?---I think, I am not sure of that.
PN230
In 1999 there was Melbourne Cup Day, correct?---There would have been, yes.
PN231
In 2000 there was a Melbourne Cup Day, correct?---Yes.
PN232
Employees of Telstra, that is all employees of Telstra in Victoria, had Melbourne Cup Day as a public holiday in those years, correct?---They did have it as a public holiday, yes.
PN233
In your statement you have said nothing about the experience of dealing with 1999 or 2000 in respect of its impact upon the customer service guarantee, have you?---No, I didn't, not in my statement.
**** BRIAN DOUGLAS BENNETT XXN MR REITANO
PN234
If that was an important matter you of course would have included it in your statement, wouldn't you?---I would suggest that we were looking at this year for it.
PN235
But if there was some important impact that emerged from the experience in 1999 and 2000 I would expect to see something about that in your statement, correct?---I think the point that I made in my statement is about how we are regulated now and also about the cost of working people on Melbourne Cup Day as we still need to, to meet business needs.
PN236
Yes, you don't say that there was any detriment to Telstra in 1999 or 2000 by having employees, all employees in Victoria work on Melbourne Cup Day, do you?---I don't say that in my statement, no.
PN237
You don't deal with it at all, do you?---No.
PN238
The reason you don't deal with it is because you don't consider that to be an important matter, correct?---No, that's not true at all. I would consider it to be an important matter. I base my statement around the time that I have actually been in the job and what I have been doing from this point forward.
PN239
You say in your statement effectively I think that there are 225 employees affected, if I can put it that way?---No, I said in my statement not that at all. I said in my statement that should we be required, should Melbourne Cup Day be a holiday we would have to work 225 employees on the day, paid on overtime rates to actually meet our CSG requirements.
PN240
All right, you want to do it the hard way. Did you just pluck the figure of 225 out of the air?---No, strangely I didn't. I went and looked at data which went back over 17 weeks as I do refer to in my statement which looks at average use of a Tuesday and on that it showed that we did 910 jobs on average on a Tuesday. At this time of year, 150 of those are CSG effective installs, 350 of them are CSG effective faults and the other jobs to make up 910 are a combination of data exchange work, some maintenance work and other type activities that we undertake in a normal day.
**** BRIAN DOUGLAS BENNETT XXN MR REITANO
PN241
But of course you would agree, would you not, that Melbourne Cup Day is a day that is unlike any of the preceding, I think you said 17, Tuesdays, you might have said another number?---Why would that be, I couldn't agree with that. I would like you to tell me why it would be different.
PN242
I will ask the questions, all right. You don't think it is any different at all?---No, I don't. As far as we are concerned if our customers are working - - -
PN243
I see, have you ever been to a TAB on Melbourne Cup Day?---Yes, I have.
PN244
You tend to find a lot more people in a TAB on Melbourne Cup Day than you do the previous Tuesday, correct?---That would tend to happen with one race per year.
PN245
You don't otherwise think that there's anything different about that Tuesday to preceding 17 Tuesdays?---No in terms of our workload no.
PN246
Did you conduct any discussions with the CEPU at all about how Telstra might be able to meet its customer service guarantee and continue its policy of providing employees with Melbourne Cup Day as a public holiday?---No, I didn't.
PN247
Do you know whether any such discussions occurred at any time?---No, I don't.
PN248
Do you say that it would not be possible to schedule work for as it were, the Monday and Wednesday, the days either side of Melbourne Cup Day so as to reduce the impact of overtime and the like?---It is possible to reschedule the work but it still has a huge overtime impact on those days.
**** BRIAN DOUGLAS BENNETT XXN MR REITANO
PN249
Do you say, by the way, does an employee get the public holiday depending upon where they live or where they work?---Where we have implemented that is it is usually where the employee's head station is and for the terms of what we have referred to and the maps that I've attached show that we have our patches broken up into team leader areas and where the head station for that team leader area is where we've applied the holiday to.
PN250
I just want to understand this, so if an employee is living in, and I'm just inventing it for the purpose of understanding what you are saying, living in Geelong where it has been gazetted as a public holiday but working in an area that say is 100 kilometres from Geelong as their head station where it has not been gazetted as a public holiday that employee would not receive the benefit of a public holiday, is that - - - ?---No, the way we have applied that this year in Geelong is in Melbourne metropolitan, not in my area but as an example, Horsham. We have people that work in our Horsham patch and all those people that actually work in Horsham would have got Horsham Show Day as their holiday. In Horsham as an example I have one person who lives in Warwickmobile, two in Nill and one in Nadamuck and the others live in Horsham they all achieved that holiday.
PN251
Can you slow down, I am trying to stay with you, yes, go on?---Nadamuck is a very famous climbing area.
PN252
I think I say a movie about Nil. There is a road to there or something?---Effectively, it is where the team leader base station is or where that group regularly meets is where we have applied the holiday to.
PN253
On my example, if someone lives in an area where it is gazetted as a public holiday, but works in an areas where it is not they would not receive the public holiday?---If they live in the area that is gazetted but work in an area that is not.
PN254
Yes?---They would have received it in the area where their head station was.
**** BRIAN DOUGLAS BENNETT XXN MR REITANO
PN255
So they would not have got the holiday on Melbourne Cup Day?---Depending if that was the case, no but they would get the holiday that applied to their head station.
PN256
Right but of course, there are people who don't, as I think you know that have, once again I am using examples just to illustrate that neither have Ballarat Show Day nor Melbourne Cup Day as holidays, correct?---There are employees that don't receive either, yes.
PN257
You are aware that that's, on Mr O'Keefe's figures or whoever prepared the figures for him about 300 odd employees or something?---Yes, in my part of the business it is 161.
PN258
Thank you very much. Of those 161, that is 161 people in rural Victoria who don't receive either a gazetted holiday, an additional gazetted holiday, a show day, or a race day, or Melbourne Cup Day?---That's right.
PN259
Of those 161 can you tell me what their classifications are or what work they perform?---Of those they could be any classification, they could be team leader down to staff member and in some cases manager if they live in an area where they don't get Melbourne Cup Day if they don't get a gazetted local holiday.
PN260
Have you done any analysis to find out how many team leaders there are, how many linesmen there are, how many whatever else there are in those 161?---No, I haven't but if the linesman miss out so does their team leader and so does their manager if that is the case.
PN261
I am happy to hear that, can you live with my question and I'm sorry if I'm not understanding but there are a whole range of classifications that could be occupied by the 161 people doing a whole range of different types of work, is that not right?---Basically, the majority of them would be our lines based staff but yes, they would be ranging from a CFW3 through to a Level 5 Manager.
**** BRIAN DOUGLAS BENNETT XXN MR REITANO
PN262
You think that the majority of them would be lines based staff?---Simply because the majority of our staff are lines based staff.
PN263
I see and has there been any discussion for or consultation with those people about reducing the long standing benefit that they've had to have Melbourne Cup Day treated as a public holiday?---Yes, those staff were actually informed.
PN264
No, no, I didn't ask you whether they had been informed, I sorry sir, I asked you whether there had been any negotiation or consultation with them?---No.
PN265
Thank you. There were certainly none before this decision was announced, correct?---They had been made aware earlier in the year that that would likely to be happen.
PN266
Have you got your statement there?---I have.
PN267
Can I just ask you to clear something up in paragraph 28 for me?---Yes.
PN268
You say there the overtime pay rate is double time and a half which would have cost Telstra approximately - overtime rates, you pay people for the public holiday anyway, don't you?---We do.
PN269
Right, so the overtime rate is effectively time and a half, is it not?---The overtime rate is double time and a half for a public holiday, we are paying them the pay rate anyway, so it costs us a penalty of 150 per cent on top that it.
PN270
It costs you an additional time and a half?---Which is what we work the $69,000 out at 150 per cent not at 250 per cent.
**** BRIAN DOUGLAS BENNETT XXN MR REITANO
PN271
I see and on an assumption that 225 employees would be required. Did you make - I asked you this at the beginning of the questions I was asking you, did you look at what happened last Melbourne Cup Day in respect of these 161 employees?---Last Melbourne Cup Day, yes I did.
PN272
Did you look at whether there were any arrangements to reschedule - sorry, I said last Melbourne Cup Day it's the one before the last one, Melbourne Cup Day 2000, did you look at what arrangements were made to minimise the impact of employees having Melbourne Cup Day available to them as a public holiday?---I did.
PN273
And did you look at what the cost was?---Did I look at what the cost was in 2000?
PN274
Yes. Did you look at what the cost was for having people presumably work on Melbourne Cup Day in respect of 161 for the year 2000?---I know that we worked over 100 people last year on Melbourne Cup Day.
PN275
I think my question was, did you look at the cost?---Last year, did we look at the cost?
PN276
Well, did you look at it last year or did you look at it this year in preparation for giving your evidence here, as to what the cost was?---No, I didn't. No.
PN277
You say you worked over 100 people? When you say, over 100, you mean in the order of 100, is that fair?---There would have been that many field staff, plus there was support staff in other areas that would have worked to assist those on the day.
PN278
It gives you a figure of about 100?---Yes, probably around 130.
**** BRIAN DOUGLAS BENNETT XXN MR REITANO
PN279
100 and- - -?---And 30 if you include the support staff.
PN280
And did you do any exercise looking at what happened in Melbourne Cup Day 1999?---No.
PN281
You didn't look at how many people worked on that day?---No, it would have been very similar.
PN282
To last year?---Yes.
PN283
You don't know, you are just suggesting that that is the case?---I have a reasonably good idea because at the time I was in fact the workforce manager who would have requested the staff to work on the day to meet our customer appointments.
PN284
In preparing to give your evidence here, did you look at any arrangements that could have been made in order to, as it were, reduce the impact of overtime and the like and so on in 1999 and 2000?---No, I didn't.
PN285
You've based your figures in your statement in particular as I understand it in paragraph 27 and 28 on 225 employees being need to work, correct?---Yes.
PN286
You've told us that only 161 employees are effected in the sense that they have neither Melbourne Cup Day nor another day as a public holiday, do you recall that?---Yes, I do.
PN287
And you've told us that last year and the year before, about 130 people were required to work overtime, do you recall that?---I do but I think - - -
**** BRIAN DOUGLAS BENNETT XXN MR REITANO
PN288
And do you recall telling me albeit aghast I was, that Melbourne Cup Day is no different from any other Tuesday?---Yes, but I think if you look at the 161 people I referred to, they are the people who don't get a holiday at the moment and quite different to whether they receive Melbourne Cup Day or any other day. The number of people I referred to in 225 would be the number of people that we needed to work in the field and our work management centre to meet our customer appointments only if we had to work - by working on Melbourne Cup Day.
PN289
But only 130 worked last year and the year before?---Yes.
PN290
But you think it is a better comparison to look at the 17 weeks before Melbourne Cup Day 2001 than it is to look at what happened in 1999 on the same day and what happened in 2000 on the same day?---I think that if we are looking at average Tuesdays, yes, we would and I think that if we looked at the last two years they would have given us a corrupt view of the data.
PN291
Did you look when you came to make inquiries of other service providers in regional Victoria, did you, for example, ask the Commonwealth Bank of Australia for a copy of any relevant industrial instrument that applied to their workforce?---No, I didn't.
PN292
Did you ask Ballarat City Council about that type of matter and what agreements they had?---No.
PN293
You are aware of course, that Ballarat City Council or people who would be working for Ballarat City Council would have a picnic day or a show day or a race day, wouldn't you?---Yes, my wife used to work there and they get Ballarat Cup Day, yes.
PN294
And similarly with Bendigo?---Yes.
**** BRIAN DOUGLAS BENNETT XXN MR REITANO
PN295
Probably some of the other - I won't go through them all, but some refer to Latrobe City Council and you would be aware that Latrobe has their own race day and so on?---Yes, they get a half day.
PN296
Now, when you spoke about the Commonwealth Bank, did you mean the Commonwealth Bank, where?---In Ballarat - sorry, that was - we did ask the question of regional Victoria.
PN297
Why did you say, in Ballarat, did you ask a person in Ballarat about regional Victoria?---We did, yes.
PN298
Can I just ask you to go to paragraph 18 and I think this is the last thing that I am going to ask you about - you see there that you've listed in the first sentence, "Central Goldfield Shire, Loden Shire", and about 7 others who you say, in those shires, Melbourne Cup Day is gazetted as a public holiday or as a holiday?---That is right.
PN299
There are others, aren't there?---Mm.
PN300
But let me give you an example and it may be that I have misunderstood your statement but just taking Bendigo as missing, for example, from the list you've got there?---We refer specifically to Melbourne Cup Day. Bendigo - observe Bendigo Cup Day which was on 15 November.
PN301
And didn't observe Melbourne Cup Day?---Not all all, no.
PN302
Well, take for example and you haven't included there Mildura Rural City Council, that observes Melbourne Cup Day as a public holiday, doesn't it?---Yes, it does.
**** BRIAN DOUGLAS BENNETT XXN MR REITANO
PN303
There is no shame in this, but there is probably about another dozen that you've omitted from there?---I wouldn't think so.
PN304
We will go through them, then?---You can if you like, there is a list attached.
PN305
Are you content for me to rely on what is attached rather than what you've listed off there?---Yes, you can.
PN306
Thank you, sir.
PN307
THE COMMISSIONER: Mr Dalton?
PN308
PN309
MR DALTON: The next witness I call is Mr Stuart O'Keefe.
PN310
MR REITANO: Could I deal with one matter that I omitted to deal with before we started this morning. I actually now appear for the CPSU and APESMA as well as the CEPU. That arises I think from your direction on the last occasion, the other parties to be notified of the proceedings.
PN311
THE COMMISSIONER: Thank you. Just before you do, Mr Dalton.
PN312
MR DALTON: Perhaps Mr Dalton could clarify in what capacity the other unions that he is now representing - - -
PN313
MR REITANO: As I understand it the parties to the award, given that one of the alternatives is to vary the award.
PN314
MR DALTON: Do they have a right to appear as of right in this application or do they seek leave to intervene. I am not going to oppose it at this stage but I haven't been given any notice of that.
PN315
THE COMMISSIONER: My immediate inclination is that a party to an award that is sought to be varied has a right to appear. Mr Reitano, do you wish to respond.
PN316
MR REITANO: I don't know if this allays Mr Dalton's fear but it isn't going to prolong the proceedings any longer than they otherwise need to.
PN317
THE COMMISSIONER: Not one additional word other than that which you have just uttered.
PN318
MR REITANO: I might at some stage say on behalf of my clients that the CEPU, CPSU and APESMA but other than that, no.
PN319
THE COMMISSIONER: Do you wish to add anything Mr Dalton?
PN320
MR DALTON: I haven't had time to check that because I wasn't given notice of that. It may be that they need to be here in their capacity as interveners and I don't oppose that application for leave.
PN321
PN322
MR DALTON: Thank you, Mr O'Keefe, you are employed by Telstra in the position of group general manager, human resources and principal corporate adviser, industrial relations?---That's correct.
PN323
You have been in that role for about three months?---True.
PN324
THE COMMISSIONER: After 41 years the titles get longer.
PN325
MR DALTON: They do, Commissioner. Prior to that you were the group general manager, workplace reform, for a couple of years?---Correct.
PN326
You've been with Telstra for 42 years, not 41 years as your statement says?---I'm in my 43rd year.
PN327
You have prepared a statement for the purposes of this proceeding?---I have.
PN328
Do you have a copy of that in front of you?---I do.
PN329
PN330
MR DALTON: One thing that may assist there was attachment 1 to Mr O'Keefe's statement which had a list of the shires. On my copy it's okay but I saw another copy of Mr O'Keefe's statement this morning which was a poor copy.
**** STUART O'KEEFE XN MR DALTON
PN331
THE COMMISSIONER: I can read mine.
PN332
MR DALTON: Mr Dalton, what I would do then is a document that perhaps Mr O'Keefe, it's the same document with markings on it which may assist in understanding the calculations that Mr O'Keefe has put.
PN333
THE COMMISSIONER: Do you want to substitute that attachment 1, which contains additional information?
PN334
MR DALTON: Subject to what my friend says.
PN335
MR REITANO: I don't object.
PN336
THE COMMISSIONER: We will substitute that document for Attachment 1 to Mr O'Keefe's statement.
PN337
MR DALTON: Has the witness been shown a copy of that new attachment 1? Mr O'Keefe, could you briefly explain what they have done there in terms of the handwritten notations?---Just to assist we've put notations down the side: MCD means Melbourne Cup Day; H means a half day gazetted, and F means a full day gazetted. Where there is nothing then there is no holiday.
PN338
If the Commission pleases.
PN339
PN340
MR REITANO: Just on that last point, Mr O'Keefe, I don't think that can be right because I don't see any entries that have both MCD and H and F and we know that some people get two holidays. Do you disagree with that proposition?---I don't necessarily disagree with it. I haven't looked at that.
**** STUART O'KEEFE XXN MR REITANO
PN341
I just don't want there to be any confusion about it. Can I perhaps deal with it fairly quickly. Can I show you this document and I will pick the one that I picked a few minutes ago with Mr Bennett. If you look at the first page down the bottom, Wednesday, 3 October 2001, the municipal district is Mildura Rural City Council you see there a full day and then the next column, name of holiday and it says for the area bounded by bla bla bla, do you see that?---Yes.
PN342
And that's a gazetted public holiday and then go over to page 3, the second entry from the bottom I think is 6 November 2001?---Got that, yes.
PN343
I could be misreading it but do you read that as suggesting that both days are public holidays for people in that area?---They way I read the one on the second page, Mildura Rural City Council, they get a full day and the public holiday is Melbourne Cup Day.
PN344
Do you want to say that again?---The region, Mildura City Council gets a full day on 6 November which I understand was the first Tuesday in November this year and it's Melbourne Cup Day.
PN345
Yes, and from the front one there is also a public holiday on 3 October for the same people in Mildura City Council?---On the front page.
PN346
Yes, at the bottom there?---That's correct.
PN347
Then if you look, for example - I am not going to take you to all of these but the one on the front page for 1 August for Bullock Shire Council?---Yes.
PN348
It appears there that they get a holiday on that date for people in a particular part of that district, for a half day. I'm sorry, they get two half days. They get a half day on Melbourne Cup Day as well?---Yes.
**** STUART O'KEEFE XXN MR REITANO
PN349
Then if you look at page 3, again, you see further up, 24 October in Bullock, the second entry from the top there's another half day? Do you see that?---Yes.
PN350
There's san additional day or half day as a public holiday on a picnic day or race day or whatever and also get either a half day or additional day on Melbourne Cut Day?---It looks like the way it is, yes.
PN351
Have you done any analysis of the figures in the document that's attachment 1 to see whether people get two holidays, as it were?---In the document that I have as attachment 1?
PN352
The document that Mr Dalton just substituted as Attachment 1, where the people get two holidays, as it were?---In the document that I have as Attachment 1.
PN353
The document that Mr Dalton just substituted as Attachment 1, where you've written MCD F and H alongside the numbers?---I haven't bothered to do that.
PN354
No, you haven't done that task. I am not criticising you for it, I am just trying to understand you haven't done that?---No, I didn't do it for all the other state sin Australia either that get the Grafton Cup Day or Port Macquarie Cup Day either.
PN355
You don't disagree with me that there are people who get an additional day or half day as a public holiday?---No.
PN356
Sure okay but from your statement we know, I think from your statement we know, perhaps I will be surprised again but you have done an analysis that tells us that there are 295 employees in victoria who get neither Melbourne Cup Day nor a show day if I can call it that?---That's correct and I believe that would be consistent with both the document you gave me and the document that I have here.
**** STUART O'KEEFE XXN MR REITANO
PN357
I just want to ask you these questions now because I am going to ask you a number of questions about them throughout the questions so I just want to get this clear with you. There are 187 employees who get a half day as it were as a show day or Melbourne Cup Day, sorry we are in paragraph 13 of your statement?---Yes.
PN358
Is that right?---That is the analysis that I done for me.
PN359
Roughly we are talking, and I just want to pick this figure up, 500 in those two categories are people who get a half day or nothing?---That's correct.
PN360
And we are talking roughly 840 odd employees who get an alternative day to Melbourne Cup Day, is that fair?---That's right or 1300 if you add them all up that don't get Melbourne Cup Day on the day.
PN361
All right, I just want to keep the figure of 500 being the ones who don't get either anything or only get half a day, just bear that in mind for the moment?---But it is relevant that it is 1300 people that work on Melbourne Cup Day.
PN362
Sure, I understand that. If I speak about the figure of 500 to understand what I am talking about?---Yes.
PN363
Now when you say in paragraph 14, do you have your statement there?---Yes.
PN364
When you say "significant" are you talking about the 1300 or the 500?---1300.
PN365
In your statement you give some evidence about I think the Award Simplification proceedings before Commissioner Lewin, do you recall those proceedings?---I recall those proceedings, yes.
**** STUART O'KEEFE XXN MR REITANO
PN366
Do you recall unfortunately, that I appeared in those proceedings?---I don't know about unfortunate.
PN367
I am sorry, this could get very gooey. Do you recall that I appeared in those proceedings?---I don't recall.
PN368
Do you recall giving evidence in those proceedings?---No.
PN369
It was Mr Douglas who gave the evidence?---Brian Douglas was predominantly our representative.
PN370
Look if you don't remember, by all means tell me, it is some years ago now, do you recall Mr Douglas giving evidence?---I don't.
PN371
Do you remember that one of the principle platforms of Telstra's position was that various things and you have mentioned one of them in your statement various things should not be included in the award but should be, the commission should be content with the fact that they would be matters of policy, and included in Telstra's policy, do you recall that?---I do.
PN372
Do you recall that one of the complaints amongst the numerous that were raised was that if it was only contained in policy that Telstra could unilaterally at its own behest simply change policy at any time it wanted to?---I have heard that argument many times so I assume that argument would have been run.
PN373
Do you recall that Telstra in those proceedings before Commissioner Lewin submitted that it would certainly not simply just change policy but would engage in a process of consultation before it did anything like that?---In terms of policy?
PN374
Yes, changes to policy?---Significant impacts on staff, picked up in the enterprise agreement.
**** STUART O'KEEFE XXN MR REITANO
PN375
Just bear with me, I think you might be jumping ahead, what I am suggesting is that one of the things that Telstra said to the commission about changes to policy and the union complaint that that meant that Telstra could do something unilaterally, that is on its own, and Telstra's response to that was we would never do such a thing without consulting with the relevant unions, do you recall that?---I don't recall that.
PN376
Would that accord with your recollection of what has been said in response to the union complaint from time to time?---That would.
PN377
When in August this year Mr Scales sent his email advising employees that Melbourne Cup Day would no longer be a holiday for all Telstra employees, were you involved in any consultation and don't jump in too quickly, in the months leading up to 9 August about that decision?---In the months leading up to August?
PN378
Yes?---I would have to say yes.
PN379
Is that because of the way in which you define the words "months leading up to"?---That's because this matter was a subject of earlier issues.
PN380
I think I know where you are heading, so I might try and do it more quickly, what you are talking about is what happened in the year 2000?---That's correct.
PN381
Just deal with my questions, in 2001 at any time was there any consultation with the union about the decision to withdraw Melbourne Cup Day as a public holiday for all employees in Victoria?---Just going on my memory I'll say no principly because the documentation trail where we formally did something about it starts in August.
PN382
9 August?---That doesn't mean it wasn't in front of the mind of various people.
**** STUART O'KEEFE XXN MR REITANO
PN383
No no and I am not suggesting it wasn't, you know, the number one objective to be achieved for 2001 at all?---I think we had a few more than that.
PN384
Hope so. Certainly in the month, I'll try and tie it down to a month, before 9 August before the cascading email was sent, there were no discussions with the CEPU about the decision that Telstra was about to announce, correct?---That's correct but I don't believe that there was needed to be any discussion, we had some discussion previously and the union clearly understood our intention.
PN385
That previous discussion was in 2000?---To the best of my knowledge, it finished in 2000.
PN386
What happened in 2000 and I know there was a lot more than this but what happened in 2000 was that someone said we're going to take Melbourne Cup Day away from employees as a public holiday and the union said we don't like that very much, I think the matter may have come to this commission and ultimately Telstra said well we won't pursue it for now, correct?---That's correct.
PN387
That all happened back in the melee of October and November 2000?---Correct.
PN388
So everyone went along and did other things for about the next 12 months and perhaps slightly less than that and the first, I'm sorry August, for the next 8 months or so and the first it was news to the union that Telstra was going to do this again was on 9 August, would that be fair?---I wouldn't degrade the union to that extent by saying they thought this was a big surprise.
PN389
I am sorry. I just didn't hear the last words?---It wasn't a big surprise.
PN390
It wasn't a big surprise?---No.
**** STUART O'KEEFE XXN MR REITANO
PN391
But certainly you can't tell me that you knew of anyone from Telstra including yourself who went and saw Mr Borg and said, look Brian on 9 August we are going to send a cascading email that announces to the workforce that what hitherto has applied from time in memorial is going to be withdrawn from some of the workforce. You can't point to that, can you?---No, but there is a need to formalise these things so that people clearly understand that when we end up in places like this that it isn't a surprise.
PN392
So on 9 August the workforce was told and two weeks later you wrote to Mr Cooper and told him of Telstra's decision, correct, on 23 August, sorry, paragraph 27?---If that's what I said, that's probably what I said. 27th is it?
PN393
27th, yes on 23 August I sent a facsimile to Cooper of the CEPU regarding Telstra's decision?---I will just check the attachment. I presume that's the one you are referring to.
PN394
Well, I am actually referring to the paragraph of the affidavit but if you want to check it, check it?---Now, which page are you on, 27?
PN395
THE COMMISSIONER: Paragraph 27.
PN396
THE WITNESS: Yes, that's correct.
PN397
MR REITANO: You didn't see it necessary to advise Mr Cooper of that before you advised the workforce, correct?---No, that's not necessarily correct.
PN398
Well, in any event you didn't advise Mr Cooper?---I didn't advise Mr Cooper.
PN399
I did not advise Mr Cooper, is that what you said?---I did not advise Mr Cooper until the date of that letter.
**** STUART O'KEEFE XXN MR REITANO
PN400
Yes and you didn't have any discussions or negotiations with him about the decision that you or others made at any time prior to advising him on 23 August?---That's not true.
PN401
Because you go back to 2000?---That's right.
PN402
Yes but you see in 2000 you withdrew the decision. You didn't say, we will put it on hold and do it next year. What you said was, everyone is going to get Melbourne Cup this year and it would have been fair to assume until someone heard otherwise that that's what was going to happen for the future, correct?---I wouldn't agree with that necessarily.
PN403
All right. Certainly between about November 2000 and 23 August 2001 you had no negotiations, discussions or consultation with Mr Cooper about withdrawing Melbourne Cup Day as a holiday for all employees in Victoria?---To the best of my knowledge that would be correct.
PN404
This was a departure as I think you told me earlier from a policy that had applied for a very long time within Telstra?---I didn't tell you that earlier.
PN405
I am sorry. Was this a policy that had applied for a very long time within Telstra?---Well, never having worked in Victoria I presume it had happened in Victoria for a very long time. That seems to be the evidence.
PN406
This was a departure from that policy, correct?---Yes.
PN407
Telstra did not before departing from that policy in the eight months or so before the decision was made, consult with the union, correct?---I have already said that.
**** STUART O'KEEFE XXN MR REITANO
PN408
Despite the position it took in proceedings before Commissioner Lewin and elsewhere as you pointed out to me that in changing policy Telstra would not act unilaterally, it would consult with the CEPU and other unions, correct?---Correct. But it is very nice to draw a line in the sand but we don't draw lines in the sand. Industrial relations isn't an event based thing, it is an ongoing exercise.
PN409
I think you pointed out that you don't perhaps fortunately work in Victoria but can I ask you is all of the knowledge about this dispute that's contained in your statement based on what other people have told you or is it based on your own information?---Well, I had better clarify, never having worked in Victoria, because I did actually work in Victoria but not in the State of Victoria but in the Corporate Head Office Victoria.
PN410
Which is located somewhere other than in Victoria?---There have been a number of occasions when I have had the benefit of the Melbourne Cup public holiday having worked at the corporate office.
PN411
Can I just go back - - - ?---I am not familiar with all of the shires etcetera in Victoria as I am sure you are no familiar with all the shires in New South Wales.
PN412
Why, I am from New South Wales?---Well, perhaps you are not aware of all the shires in Victoria then till you read them up.
PN413
Can I just ask you, is the information in your statement - once again I don't say it critically, I am just trying to understand. Is it based on your understanding from what you have developed over 42 years of experience in Telstra or is it based on what other people told you?---No, a lot of it is based upon research that I have done since - or have asked to have done, since we have been coming here. A lot of it is based upon my knowledge of all of the proceedings before the Commissions and other things that have occurred in the history of the series of events that have occurred here. So I don't think it is possible to separate my experience in 41 years, 20 something of which have been in industrial relations from this exercise.
**** STUART O'KEEFE XXN MR REITANO
PN414
You certainly haven't asked anyone - I use this by way of example, to tell you how much it cost Telstra in terms of customer service guarantee fines or penalties last Melbourne Cup Day. That is in the year 2000. You haven't asked anyone to do that task, have you?---I haven't asked anyone to do anything about costing the differentials.
PN415
As against last year of 1999 or any other year?---That's exactly right.
PN416
Nor have you spoken to CEPU about things that it might suggest as to how it could see costings as you refer to them being minimised or eliminated in respect of these 500 employees who don't receive Melbourne Cup Day as a public holiday?---Not in that specific matter that you raise, no, but I have had discussions with them about Melbourne Cup Day.
PN417
Yes, but you haven't had any discussions with them about that specific matter?---Not about dollars and cents, no.
PN418
Or about things that they could suggest to eliminate or reduce the cost?---Not about eliminating the cost.
PN419
Or reducing the cost?---I don't believe that ever come up in our discussions. It was more around, we want the holiday to continue as it was for the last 50 years.
PN420
You have read Mr Bennett's statement I take it?---I glanced through it, yes.
PN421
Certainly none of that information has been, as far as your involvement in this dispute is concerned, been put to the CEPU and been information that they have been required to or been asked to comment on or consider?---Some of it has been put to the CEPU in this form.
**** STUART O'KEEFE XXN MR REITANO
PN422
What has been put to the CEPU or the other unions is the bald statement that this effects our customer service guarantee obligation, that's what has been put to them, isn't it?---Well, you could say, yes, to that question but that is only answering part of the question. More than that has been put to the CEPU.
PN423
In respect of what is in Mr Bennett's statement, what has been put to the CEPU is the bald statement, that this effects our customer service guarantee obligation?---Well, that is Mr Bennett's statement and I'm not - don't know every word of Mr Bennett's statement.
PN424
Now, I think you said a minute ago that the "benefit" of having the day off or treating Melbourne Cup Day as a public holiday has been in place for about 50 years?---I think the union said that.
PN425
I see, you were claiming what they said- - -?---I'm just repeating - just repeating the words.
PN426
In any event, you've agreed with me before that it has been in place for a long time as far as you have been able to ascertain?---Absolutely.
PN427
Could we just for the purpose of the question, assume a long time is 25 years for the moment? Just for the purpose of my next question, do you regard 25 years as a long time?---Not when you have been working 43.
PN428
Certainly, you are not aware of any attempt at all by the CEPU or any of the other unions for whom I now appear to flow the public holiday in Victoria on the first Tuesday in November to any other State, correct?---Correct.
PN429
Certainly, as far as you understand it, the CEPUs only concern that it has raised in these proceedings is Telstra's departure from long standing practice or policy in respect of Melbourne Cup Day?---Correct.
**** STUART O'KEEFE XXN MR REITANO
PN430
No-one has suggested to you in these proceedings or otherwise that Melbourne Cup Day should be a public holiday for employees in New South Wales?---Correct.
PN431
And no-one has suggested to you that there should ever be any extrapolation of a gazetted day in each State to cover award based staff in those States, correct?---Correct.
PN432
All that has been suggested to you is that Melbourne Cup Day should be treated as a public holiday in the same way that Telstra over 25 years has dealt with it as a public holiday?---Correct.
PN433
And on any view, the suggestion in your statement that there might be some flow or industrial precedent set by granting the union's application in either of its alternative forms in these proceedings, is without any basis whatsoever?---I wouldn't agree with that.
PN434
And you say that a long history of the union accepting Telstra's policy suggests to you that there now might be some attempt to use the matter as an industrial precedent, to use your words, is that correct?---There is 26,000 people in Australia who work for us who don't get Melbourne Cup Day and there is a lot of people in all the other States who get a half a day for a local show day and what you are asking - what the union is asking is for the gazetted public holiday arrangements to be altered to now encompass a large number of people.
PN435
No, what the unions ask is for you to adhere to the policy that you had in place for a very long time in respect of employees in the State of Victoria, that is correct, isn't it?---Are you articulating that position, are you?
PN436
Yes, I am and I will ask the questions. Is that correct?---That is correct.
**** STUART O'KEEFE XXN MR REITANO
PN437
No-one has suggested at all, ever, ever in these proceedings that there was a desire to change the position in respect of other States, have they?---Not to my knowledge.
PN438
And it would be nonsense to suggest that that is the purpose of these proceedings, wouldn't it?---I'm not sure of that.
PN439
Thank you.
PN440
THE COMMISSIONER: Mr Dalton?
PN441
MR DALTON: Commissioner, there is one another witness - - -
PN442
THE COMMISSIONER: Do you have any other questions for Mr O'Keefe?
PN443
PN444
THE COMMISSIONER: Mr Dalton?
PN445
PN446
MR DALTON: You've prepared a statement for the purposes of this proceeding?---Yes, I have.
PN447
Do you have a copy of that in front of you?---Yes, I do.
PN448
And the contents of that statement and the attachment are true and correct to the best of your knowledge?---Yes.
PN449
I tender that, Commissioner.
PN450
MR REITANO: I object, Commissioner, on the basis of relevance.
PN451
MR DALTON: Commissioner, it is relevant in my submission because - - -
PN452
THE COMMISSIONER: Do you want me to see it, Mr Reitano?
PN453
MR REITANO: I'm happy for you to see it.
PN454
MR DALTON: I should explain. This is a brief statement attaching a document which purports to summarise the results of some research conducted in relation to the position regarding regional public holidays in other states. The reason in my submission, that it is relevant to this case is that it demonstrates the obvious, that there are regions throughout Australia in which a half day or full day holiday is not gazetted and we rely on it on that basis, Commissioner.
PN455
THE COMMISSIONER: Mr Reitano?
**** SOPHIA McCOWAN XN MR DALTON
PN456
MR REITANO: We were given this document late yesterday, so we haven't had the chance to check any of the information in it but our case has always been - has had nothing to do with any other state of Australia other than Victoria. It solely is directed at Victoria and for that reason we cannot see what the possible relevance of what happens in other states might be.
PN457
PN458
MR DALTON: Commissioner, given that it is a short statement and a short attachment I will leave it for you to read it there at the appropriate time, I do not have any questions.
PN459
THE COMMISSIONER: Mr Reitano, do you wish to ask any questions?
PN460
MR REITANO: No, Commissioner.
PN461
PN462
THE COMMISSIONER: Is that the evidentiary matters Mr Dalton?
PN463
MR DALTON: It is Commissioner.
PN464
THE COMMISSIONER: Is there anything you wish to add further in submissions before I hear from Mr Dalton, Mr Reitano?
PN465
MR REITANO: I think Commissioner, I filed an outline and I rely on obviously what I said on the last occasion and I rely on the outline.
PN466
THE COMMISSIONER: With feeling. Yes, Mr Dalton.
PN467
MR DALTON: Commissioner, you should have there on the file a brief outline of submissions from Telstra.
PN468
THE COMMISSIONER: Yes, I do.
PN469
MR DALTON: I have since then had the opportunity to prepare a more thorough separate submissions in the interest of dealing with this case expeditiously.
PN470
PN471
MR DALTON: The complete submissions?
PN472
THE COMMISSIONER: The complete submissions, yes.
PN473
MR DALTON: Commissioner again I am sure you will find the time to read through these submissions at the appropriate time. It starts with a background to the dispute which just refers to the relevant instruments and the relevant clause. The top of page 2, I think that is a typo, it should be, I think it is 12.7.4, yes, 12.7.4 and then it just explains how the position has evolved into a dispute and how the matter has come before the commission. The next section just deals with the claim. Commissioner I am sure you are aware that the claims put forward by the union and presumably now adopted by the other unions that Mr Reitano is representing seeks primarily this exceptional matters order in the terms of the draft at attachment A to Slater and Gordon's letter to the commission dated 7 November.
PN474
Now that EMO sir, applies to Telstra, confines Telstra and the CEPU and gives all employees of Telstra who work in Victoria, Melbourne Cup Day as a public holiday for all relevant award purposes. As an alternative there is a slightly narrower provision sought and that is the alternative variation order and I have described that at paragraph 15 Commissioner, as an order that seeks to give Melbourne Cup Day only to employees, to use the expression, slip through the cracks and it also provides for, I guess a pick up clause to supplement those who only receive a gazetted half day to get the remainder of the day as a half day holiday on the first Tuesday in November.
PN475
The submission of Telstra is that whichever way you look at this sir, the claims are above safety net. So from a jurisdictional or merit perspective, the unions claims are misconceived. In relation to jurisdiction, the commission as currently constituted, that is, a single member of the commission cannot grant either of the orders sought. That is the EMO or the variation order because both require the commission to arbitrate above the safety net level. Commissioner, section 106 deals with this very issue from a jurisdictional perspective and I have quoted the relevant section, section 106(2) at paragraph 18 of the written submissions.
PN476
It does not start operating until principles have been established in relation to the allowable matter but once those principles have been established then the section applies and the commission can only make or vary an award by a Full Bench unless the contents of the award do either of the things that are specified in the quoted text paragraphs A and B:
PN477
A. That is give effect to determinations of a Full Bench made after the commencement of a section; or
PN478
B. Are consistent with principles established by a Full Bench after the commencement of this section.
PN479
I think the section commenced on 31 December 1996 if my memory serves me correctly. The reference in section 106 to contents of the award in my submission is a reference to the contents of an award or order affecting the GCOE award that the commission is required to reduce into writing under section 143 and so therefore, both the EMO and the variation order sought each are the contents of the award for the purposes of section 106. It is Telstra's submission that since 31 December 1996, the Full Bench has in fact established principles in relation to the contents of the award that is, principles in relation to public holidays. Commissioner, could I hand you a folder of materials, these include cases and materials that are relevant to the principles of the commission and public holidays test case and whatnot.
PN480
PN481
MR DALTON: Commissioner, I think the copy of the index obscures the headings but if you take the first dark space as section 106 cases. If I take you to the first one just briefly. It is a decision of Vice President Ross. Please note the date of the decision which was 16 January 1997, so it is only three weeks after the section 106 commenced. In this case there was in fact an application to vary various awards that related to I think catering services generally for substitution of Australia Day and I think most of the employer respondents didn't contest that the Commission had jurisdiction to grant the variation. But some of them had some submissions to put on merits.
PN482
But nonetheless Vice President Ross has dealt with the jurisdictional matters and at page 3 of the print that I have given you, towards the bottom he deals with section 106. Then on page 4 his Honour makes a couple of points about section 106. You will see down there if you mark those few paragraphs there, Commissioner, he makes the point that section 106 only operates once the principles have in fact been established. You will see at the paragraph just above wage fixing principles, his Honour says:
PN483
In my view I have got the power to grant the variations sought.
PN484
He decides that because he says:
PN485
There has been no Full Bench determination since the commencement of section 106 establishing principles about the making or varying of awards in relation to public holidays. Accordingly section 106(2) doesn't operate to limit my jurisdiction in relation to the matters before me.
PN486
Then his Honour goes on to look at wage fixing principles generally because he regards that as obviously relevant to the question of discretion, whether he should grant the variation sought and his Honour at page 5 expresses the view - - -
PN487
THE COMMISSIONER: Can I ask you to pause for a moment, I am sorry. Am I correct that his Honour's reasoning in that paragraph you referred me to was that the principles need to be established following the enactment or the variation to 106 rather than there couldn't be principles established beforehand.
PN488
MR DALTON: That's right. So there were principles of the Commission obviously. There were wage fixing principles as there always have been, but there hadn't been new principles set. I think that seems implicit in his reasoning that there hasn't been any principles or determinations in relation to those matters after 31 December 1996. So I guess in the three week period prior to this decision there hadn't been any principles. So that was the basis on my reading of his Honour's decision in relation to jurisdiction. In relation to merit it is worth noting that his Honour still regarded wage fixing principles and the public holidays test case is relevant on discretion.
PN489
THE COMMISSIONER: Well, they were formed in the public interest, the principles.
PN490
MR DALTON: Yes.
PN491
THE COMMISSIONER: But principles formed in the public interest would have great weight in the exercise of discretion as opposed to the jurisdictional.
PN492
MR DALTON: That's right, Commissioner, and his Honour then correctly looked at the principles that operated, albeit prior to the commencement of the section, in the context of merit. His Honour at page 5 of 6 of the print that I have provided just above the heading, "Decision", expresses the view that the applications by the unions in the matters before him are consistent with the public holidays test case and his Honour goes on to grant the variations sought.
PN493
The next tabbed decision, Commissioner, again is a decision of his Honour Vice President Ross presiding in a Full Bench case. In my submission, this decision is authority for the proposition that there are in fact principles of the Commission that have been put in place since the commencement of section 106. Hence the operation of section 106(2) is enlivened. This involved the Metal Pipelines Construction Award. It was an award made by Commissioner Merriman and Commissioner Merriman had in fact retired by the time this decision of the Full Bench came down. But the CFMEU challenged the award. The CFMEU having an interest in pipeline construction and engineering construction generally. It appealed against the dispute finding and also against the making of an award.
PN494
It is important to note, Commissioner, and the point is made at the bottom of page 2 and the top of page 3 of the 29 pages of the print that the appeal was not pressed under section 45(1)(B) because CFMEU lacked the requisite standing. Presumably because it wasn't a party to the award or the dispute finding. However, the CFMEU did have standing to appeal on the basis of 45(1)(G). That is that the Commissioner made a jurisdictional error in making the award and his Honour goes on then to consider section 106.
PN495
THE COMMISSIONER: What page is that?
PN496
MR DALTON: At page 15 of 29. Actually the page before you should not just for completeness that the Commission actually granted leave for the CFMEU to amend its notice of appeal to actually include this specific ground of section 106. At the bottom of page 14 the Full Bench said:
PN497
In our view the award is inconsistent with the relevant statement of principles. Section 106 of the Workplace Relations Act is relevant in this regard.
PN498
Then the Full Bench quote section 106 and then there is the dot point about halfway down page 15:
PN499
It is clear that once principles have been established under section 106(1), section 106(2) has the effect that a single member only has jurisdiction to make an award. If the contents of the award are consistent with those principles or give effect to the determination of a Full Bench, hence the failure to comply with the principles established pursuant to section 106(1) amounts to a jurisdictional error within 45(1)(G).
PN500
Commissioner, it is also worth reading on, on that page because Mr Hatcher for the AWU raised fairly and squarely with the Commission that the principles being the statement of principles set out in the Safety Net Review Wages May 2000 Decision, were not principles for the purposes of section 106 and his submission on that point is quoted, and then the Full Bench rejects that submission at the final paragraph on page 15:
PN501
We do not agree with the AWU submission on this point ...(reads)... in these terms.
PN502
And then there is the quote of the reasoning, and then the Full Bench attaches the current statement of principles which, I think, at that time was those principles as attached to the safety net review decision of 2000 and said:
PN503
In our view, these are clearly principles for the purposes of section 106 of the Workplace Relations Act.
PN504
Then the Full Bench goes on for the rest of the decision looking at the award and expresses the view that the award is, in fact, inconsistent with the Commission's statement of principles, and grants the appeal on the basis that Commissioner Merriman erred in a jurisdictional sense in doing so, as a single member of the Commission.
PN505
In my submission, Commissioner, that Full Bench decision is clear authority for the proposition that the Commission's statement of principles that are now attached to this safety net review decision 2001. Is the set of principles for the purposes of section 106 and on that basis it is incumbent upon the unions to make an application under section 107 for a special case, and if the unions press this application before the Commission as presently constituted it must follow that the application for the orders sought are dismissed because the Commission, as a single member, doesn't have the jurisdiction to grant the claim because it is above safety net.
PN506
THE COMMISSIONER: Now, for that argument to succeed, I have to accept the proposition, do I, that the principle relating to test case standards imports by reference all cases described as test cases?
PN507
MR DALTON: The statement of principles - - -
PN508
THE COMMISSIONER: Because there is nothing specific in the principles, is there, about the - if I use the term, generically and not specifically, the public holidays test case?
PN509
MR DALTON: That's right but section 106 deals with allowable matters generally because those are the matters that the Commission has power to arbitrate on, and - - -
PN510
THE COMMISSIONER: No, but the question I'm putting to you is it not inherent in your proposition that principle 4, which talks about test case standards, that I must now pick up everything that has gone before, that the Full Bench believes that principle 4 covers and anything that might have been regarded as a test case is covered by principle 4, so be that maternity leave, parental leave, public holidays, AWAs, all of those sorts of matters.
PN511
MR DALTON: That is right, Commissioner, because these principles are current and they do pick up - well, they talk about above and below safety net and the circumstances in which that can be done, and incorporating test case standards is one of several circumstances in which the Commission can arbitrate above or below the safety net. Those are current principles, those are principles, in my submission, that are principles for the purposes of section 106.
PN512
THE COMMISSIONER: But there are two questions, aren't there? The first question is whether or not it is above or below the safety net, and that can lead to issues of argument. Put aside a test case consideration, one may simply not be putting something above the safety net but varying the safety net, or establishing a safety net, but a test case, you say, establishes beyond doubt what the safety net is?
PN513
MR DALTON: Yes, that is an important limb of my argument, that the statement of principles being the relevant principles for the purposes of section 106, in effect, incorporate or pick up the public holidays test case and then my argument refers to the public holidays test case to demonstrate, in my submission, the above safety net nature of these claims.
PN514
THE COMMISSIONER: Yes, I follow.
PN515
MR DALTON: Yes, and on that basis it is inconsistent with the statement of principles, the latest being those appended to the 2001 safety net review decision. Commissioner, the safety net review wages decision is attached - - -
PN516
THE COMMISSIONER: So, really the Commission doesn't need paragraph 4, does it, in its principles?
PN517
MR DALTON: Of the principles?
PN518
THE COMMISSIONER: Yes, test case standards.
PN519
MR DALTON: Well, it has a pretty close relationship to principle 10, I think.
PN520
THE COMMISSIONER: It might be a different question, but it is principles established by a Full Bench, then single members can't entertain applications. There is just no jurisdiction to entertain applications.
PN521
MR DALTON: A single member can only incorporate test case standards in accordance with principle 4 under principle 2.
PN522
THE COMMISSIONER: I see, yes. May be incorporated where disagreement exists?
PN523
MR DALTON: Yes. Well, where disagreement exists then, I think - - -
PN524
HIS HONOUR: What is the consequence of that? I notice in your outline of submissions you suggest that the application should be dismissed, but where disagreement exists should I - if I find your argument persuasive, should I dismiss the matter or simply refrain from further hearing it?
PN525
MR DALTON: One of the things that you could perhaps do is - I really don't think it is necessary given the issue has been raised fairly and squarely, is ask the unions, well, are you going to make an application for a special case, because principle 4 makes it very clear that where the argument is raised that it is incumbent upon the applicant to make that section 107 application.
PN526
THE COMMISSIONER: But that will be a matter for them and I am just wondering whether it is appropriate, an application having been made, if there is a course that can be adopted and whether it is appropriate for the single member to dismiss the application or simply refrain from further hearing it until the course that it is outlined in the principles is adopted. Do you see the point that I make? I wonder whether it is fair to conclude that an application should be dismissed, simply because of procedural application hasn't been made rather than simply me saying, unless you make the procedural application, I'm going to refrain from further hearing it because it is contrary to the public interests for me to hear something that is properly and jurisdictionally to be determined at another forum.
PN527
MR DALTON: The might be one way of dealing with it. I've actually included in the folder of materials, a decision at tab 6 which is a Full Bench decision. It was an appeal made by the Western Australian Municipal Association against a decision of Deputy President Drake. In that decision, her Honour refrained from granting an application by the association to in effect strip back various municipal awards to reflect the position at that time in relation to public holidays that applied in Western Australia and it was the actual refusal to deal with it that ultimately led to the Full Bench overturning the decision.
PN528
In effect, it was a constructive decision not to grant the order, so one possibility if you constructively refuse to grant the relief sought by the unions is that they might try and pursue that in another way. I just raise that decision as a - it shows that simply refraining from dealing with something - there are comments made by the Full Bench which suggest in my submission quite strong that the single member of the Commission is required to uphold the test case standards where that standard has been set albeit that decision did involve changing the existing award.
PN529
THE COMMISSIONER: Yes.
PN530
MR DALTON: It is a different set of circumstances, I acknowledge that.
PN531
THE COMMISSIONER: The issue that concerns me is that there is no doubt that the Commission has the jurisdiction even on your argument, to hear the application, it is how the Commission is constituted that is important in a jurisdictional sense and then whether in those circumstances, it is appropriate to dismiss an application or if a particular arm of the Commission is incapable of doing it, rather to refrain from further hearing it without dismissing it which might indicate that the Commission in its totality has no jurisdiction to deal with it; that was the only thing that was concerning me.
PN532
MR DALTON: My submission on that would be this. If, in dealing with the matter, the issue of above safety net status is raised fairly and squarely then it is incumbent upon the unions to make the appropriate application at the time. The failure of the unions to even indicate that they are going to do that, in my submission, should weigh heavily in favour of the Commission deciding that it should dismiss the application. Yes, it is a procedural step. Yes, the Commission constituted in a different way, may entertain the application but the failure of the unions to take that procedural step at the time when it is raised fairly and squarely, I think, should be the basis for dismissing the claim rather than a fairly unsatisfactory status of affairs where the application is still sitting there but the unions haven't taken any steps to attract the Commission as appropriately constituted. I think the first step is to actually refer it to the President.
PN533
THE COMMISSIONER: The matter is in issue, though, as I apprehend it. Mr Reitano hasn't suddenly thrown up his hands and said, well, you've got me. It is time to go.
PN534
MR DALTON: I'm still waiting for that, Commissioner.
PN535
THE COMMISSIONER: The matter must be at issue. I am just thinking of the work of the Commission. If a section 107 application was made, then on many occasions, his Honour, the President in the exercise of his decision making power takes with him to the Full Bench, the material and the evidence that has been led to that stage and then three members and more often than not, including the member to whom the 107 application has been made, on occasion, not, but more often than not that way and then it saves time. Dismissing an application has other connotations.
PN536
MR DALTON: Commissioner, I appreciate your candour of thinking about those matters, either way the applications - the relief sought is not granted - - -
PN537
THE COMMISSIONER: Yes, in your view it doesn't matter, as long as it - - -
PN538
MR DALTON: It is certainly the preference of Telstra that the application be disposed of one way or the other, rather than in my submission, a somewhat unsatisfactory outcome where the unions are in fact leaving it in limbo because they are choosing not to make the obvious application for a reference. The issue has been raised fairly and squarely and it is incumbent upon them to make that application. They are refusal to do that, if in fact it is a refusal, in my submission really does leave the Commission with no other effective choice but to determine the application.
PN539
THE COMMISSIONER: Yes.
PN540
MR DALTON: Tab 3 is another decision, a fairly lengthy one. It is a decision of Commissioner Jones and that was an application by the various construction unions to double up, if I could describe it as such, Melbourne Cup Day and Picnic Day and also I think in New South Wales, it was to double up Newcastle Show Day with Picnic Day etcetera. Commissioner Jones ultimately refused to grant the application for the awards to be varied to provide for both those days and Commissioner Jones looks at section 106 but importantly looks at the test case and I think at the last page his decision is that, well, it is inconsistent with the test case because it is asking for more than the additional day as gazetted in circumstances when the public holiday's test case specifically provided for either picnic day or Melbourne Cup Day.
PN541
The next decision, Commissioner, is at tab 4. That is the safety net review wages 2001 decision. Attachment A of that decision has the statement of principles which I think are almost identical to the previous statement of principles from the year before, save and accept for I think a couple of changes that are discussed on page 348 to 352 of the decision, things such as the period of time that you have to wait until you get the next safety net increase. The relevant principles that I'm dealing with, I don't think have been changed.
PN542
Commissioner, the relevant principles are principle 1 - these are dealt with in the written submissions in a fair bit of detail so I don't need to spend any time on it, other than principle 1 being the general objects of the Commission, the safety net nature of its arbitral power. Item 2, we have discussed, that is the ability for a single member to incorporate test case standards above safety net. Where that issue is disputed, the test case standards, it is incumbent upon the union applicant, in this case, to make the section 107 application and principle 10.
PN543
Principle 10, Commissioner, is important in this case, because it makes it very clear:
PN544
That applications involving a consideration of a ...(reads)... and a party seeking a special case - - -
PN545
THE COMMISSIONER: Where are you reading from?
PN546
MR DALTON: Page 358 of the decision.
PN547
THE COMMISSIONER: Page 358 of the decision, yes, thank you.
PN548
MR DALTON: I just wanted to highlight, Commissioner, that an EMO can circumvent allowability but it can't circumvent the Commission's own principles.
PN549
THE COMMISSIONER: Where does it say exceptional matters order?
PN550
MR DALTON: The reference to 89(a)(7).
PN551
THE COMMISSIONER: I see. Exception matters order.
PN552
MR DALTON: Exceptional matters orders, and you will see in the last paragraph in principle 10 that a party seeking a special case has to make an application under section 107 supported by material justifying the matter being dealt with as a special case and then it is up to the President to decide whether it is to be dealt with by a Full Bench. In my submission, that is the application that needs to be made to the unions if they are to avoid this application being dismissed.
PN553
The public holidays test case is the decision that is tabbed next, Commissioner, if you have finished with that point, but I notice you are looking at the act, Commissioner.
PN554
THE COMMISSIONER: Yes, thank you. When in doubt, read the book.
PN555
MR DALTON: Commissioner, the next tab is the public holidays test case, so I'm now moving into the territory of what is the safety net. Assuming you are with me on the section 106 point, you still have to be satisfied that the claim is, in fact, above the test case standard and, therefore, cutting across the Commissioner's statement of principles.
PN556
The public holidays test case, Commissioner, you will no doubt be aware that there were a number of decisions. I've only included the key decision, which dealt with the 10 plus 1 decision, if I could describe it as such. At page 17 of the print, you'll see the extract which starts, "In some states". Page 17 of 22.
PN557
THE COMMISSIONER: 17, yes, thank you.
PN558
MR DALTON: I should add that the reference that I'm just putting you to immediately follows a description of 9 days, which are not in dispute in this case, so that is the 9 days that are set out in the GCOE award. Then it goes on, and it talks about in some states the provisions which we have outlined for below existing state standards, and Commissioner if you could just follow that extract down to the next paragraph:
PN559
We do not intend ...(reads)... basis of double counting - - -
PN560
Etcetera. Those two paragraphs make two points, in my submission. The first point is that the Commission's role is to set a safety net and it is not to preserve status quo. It is to recognise the autonomy of state and territories, subject to this safety net, to set public holidays. The second paragraph makes the point that Melbourne Cup Day, or a local equivalent, is to be this additional day, and that it is not to be double counting so that if you have got a picnic day or some other day that applies, then that is to be in lieu of Melbourne Cup Day.
PN561
THE COMMISSIONER: That is the union's more narrow position, isn't it?
PN562
MR DALTON: Yes, it is, although one is left to wonder what is the status of the existing clause in that it provides for 10 plus 1 plus 1, because it provides for Testra Day, so you've got the 9 days that are stated at the top of that extract, plus Easter Saturday, that's 10, so they are the 10 definites, plus the additional day.
PN563
THE COMMISSIONER: Which is the Telstra Day?
PN564
MR DALTON: Well, this is the question because in the test case, the additional day was the additional day as gazetted - in areas where gazetted - so it is 10 plus 1.
PN565
THE COMMISSIONER: Where does the Telstra Day fit?
PN566
MR DALTON: Good question, Commissioner, and it really - I mean, this application is pretty courageous when you think about the existing provisions in GCOE.
PN567
THE COMMISSIONER: But on your submission has Commissioner Lewin exceeded his jurisdiction by making the award?
PN568
MR DALTON: I am not instructed to make any formal application along those lines but, in my submission, yes, it is higher than the test case standard. Because it provided for 10 plus Telstra Day, plus a gazetted day, whereas there's no doubt the test case provides for 10 plus the gazetted day?
PN569
THE COMMISSIONER: Yes.
PN570
MR DALTON: And there's no doubt that the test case said that if you've got picnic day that's not an extra day, it's to be in lieu of. So in my submission it's clear from the test case that it's 10 plus one. There are other decisions that dealt with substitutability of days that fall on week ends and there was also a decision that dealt with public holidays applying to shift workers, people who work unusual days, not the standard Monday to Friday.
PN571
The next two cases are decisions firstly at tab 6 of a full bench which I referred to you very briefly and the next tab, tab 7 a decision of Commissioner Merriman. They both apply the test case. In the first one the full bench overturned Deputy President Drake's constructive decision not to make an order and actually granted the application to strip back the award to match the safety net and Commissioner Merriman's decision, tab 7, is just an example of where a party wanted picnic day plus Melbourne Cup Day and that application was rejected. At page 3 of 4 about three quarters of the way down, Commissioner Merriman says:
PN572
The Commission has considered all of the material ...(reads)... but not in addition
PN573
The next tab is an extract of the Metal Engineering and Associated Industries Award. As you are no doubt aware that was one of the key awards subject to the award simplification and applying the provisions dealing with allowability and reflecting test case standards. Clause 7.5 deals with public holidays. 7.5.1A, if you cast your eye down there, Commissioner, you will see that there are 10 dot points and the 11th dot point is the provision for substitutability and 7.5.1B is the plus one. If you go down to the bottom of the page it says in Victoria Melbourne Cup day or a local equivalent.
PN574
The next tab is the Public Holidays Act in Victoria. I've dealt with that in the written submissions. I don't think I need take you to that any further. So it's the submission of Telstra that when you have regard to the test case and the material that you've got in the evidence regarding the gazettal in Victoria that both the EMO and the alternative variation order sought go beyond the test case standard, therefore, both the orders sought are above safety net standards. The EMO is way above safety net standard and the variation order is above safety net standard because it purports to give people a "public holiday" that is outside the scope of the gazettal, the geographical scope of gazettal.
PN575
It is worth noting, in my submission, the position in relation to the other States because the EMO sought is predicated on the basis that this is in some way exceptional. In my submission the only thing that the unions can point to in support of this argument is that this is somehow exceptional. We are talking about a relatively small percentage of people who slip through the cracks as it were. Bearing in mind, though that the EMO would directly benefit some 1300 people who don't currently get Melbourne Cup Day but they may get some other day or half day, or no day.
PN576
There are a number, I think there are 200 odd who don't get anything but then there are significantly more people who get a half day or another day in their locality. The EMO would in fact discriminate in favour of rural employees because the urban employees would be restricted to Melbourne Cup Day, they don't get any other gazetted day and also it would treat Victorians more favourably than other States.
PN577
THE COMMISSIONER: I'm sorry, I didn't hear the aside but I'm not constrained by the order sought. I can make whatever orders appropriate in the circumstances. As I apprehended the gravamen of the union's claim was if I were to make an exceptional matters order that said everything you got last year you get this year and not a cent more that would fulfil their position. So, whatever Telstra has been doing for the last - to pick Mr Reitano's brief moment in time - 25 years you keep doing it for the period of the operation of the exceptional matters order. That's as I understand the real impact of their submission and what they say is exceptional is that it's changed.
PN578
MR DALTON: And I think that the CEPU's own evidence from Mr Absolem wasn't even seeking that people in rural Victoria, in effect, double up.
PN579
THE COMMISSIONER: No, they don't want anything new, they just want back what they had.
PN580
MR DALTON: So I am assuming that the EMO would be scaled back both compared to the draft. It still, in my submission, would be above the test case.
PN581
THE COMMISSIONER: I understand that.
PN582
MR DALTON: Commissioner, I've got a section that addresses the 1974 determination. I think the simple point to make there is that at the very latest Commissioner Lewin's GCOE put that to bed and substituted general discretion that Telstra had to determine terms and conditions with a code of public holiday entitlements. Those documents are attached to Mr O'Keefe's statement and you will see that Telstra initially argued that it should be discretion.
PN583
Commissioner Lewin said no, I think it should be a code, then he left it open to the parties to put submissions on that content consistent with his decision. Telstra put submission, if it's a code it's a code it's got to be a test case, 10 plus 1 and then Commissioner Lewin in early 2001 eventually handed down the GCOE order following the specific designation awards and the result was 10 plus 1 plus the additional day's gazetted. So, in my submission, to put it mildly the unions ought to be happy with the existing state of the clause and that this application is clearly above safety net whichever way you look at it.
PN584
MR REITANO: I wonder, Commissioner, if I might have a short adjournment?
PN585
THE COMMISSIONER: Have you concluded, Mr Dalton?
PN586
MR DALTON: I have about five minutes but I understand.
PN587
THE COMMISSIONER: We'll grant a five minute adjournment.
SHORT ADJOURNMENT [12.07pm]
RESUMES [12.20pm]
PN588
THE COMMISSIONER: Thanks, Mr Dalton?
PN589
MR DALTON: Commissioner, just a couple of points to conclude. You will see on page 12 I deal with the EMO. Without repeating what I have put there in writing. In my submission, it seems that the unions claim for an EMO is misconceived largely because it is focusing on EMO in the context of actual terms and conditions. In my submission, it is fairly clear that the Commission approaches EMO consistent with the objects of the Act generally and those objects that apply specifically to part 6 in which section 89A7 exists. Section 88B of the Act says:
PN590
The Commission must perform its functions under this part in a way that furthers the objects of the Act and in particular the objects of this part.
PN591
Those objects relevantly focus on the Commission establishing and maintaining an award safety net. Section 89A restricts the ability of the Commission to arbitrate and the way that it does that is restrict the scope of industrial disputes for those purposes to allowable matters. Now, EMO enables the Commission to circumvent that provided that the circumstances set out in 89A7 are made out. What it doesn't do is allow the Commission to circumvent its own statement of principles. In my submission, that's the fundamental problem with the application that is before you.
PN592
In relation to paragraphs A and B of 89A7, Telstra is content not to suggest that those limbs aren't satisfied. But in relation to C, D and E, it is Telstra's submission very much that they are not satisfied. In relation to C it is not appropriate to arbitrate because the claim is well above safety net and it is asking the Commission to give everyone in Victoria, Melbourne Cup Day, irrespective of their existing access to a gazetted half or full day, other than Melbourne Cup Day.
PN593
If the Commission thinks that those considerations really go to the merits of an arbitration and don't really go to whether it is appropriate to arbitrate the dispute which the parties haven't been able to settle through conciliation, then in my submission, it is very important on the question of merit. But in relation to D I touched on this just before the adjournment, this question of what is exceptional. Is it exceptional that a relatively small proportion of people don't get the same actual benefit through the operation of 12.7.4 of the award as others. In my submission, that is really focusing on actual terms and conditions. It is not focusing on the safety net position. Particularly when you have regard to the public holidays test case decision where it made it very clear that the role of the Commission was to establish that safety net, but then once that's done it is up to the States to work out where the public holidays are to be.
PN594
Is it exceptional then that people who work in an area that is not gazetted a half day or full day, miss out on a public holiday. Is that exceptional for the purposes of 89A7. In my submission, it is not. The Gordonstone case, that's the case I have got in the last attachment in the folder I handed up. That regarded the issue of lasting first off as not exceptional. In that case the Australian Colliery Staff Association tried to get the Commission to restore that award requirement that had existed prior to award simplification and argued that there were a lot of retrenchments happening in the coal industry at that time and people had in a way set up their lives on the assumption that they had a certain level of seniority and in effect were immune from retrenchment.
PN595
But that wasn't going to be the case any more and that a real impact on a number of employees in a much more significant sense than not getting a public holiday. The Commission decided that that was not exceptional for the purposes of 89A7. In my submission, it is pretty difficult to reconcile the reasoning of the Full Bench in that case with a decision that it's exceptional in these particular circumstances.
PN596
In relation to paragraph E, the question of harshness, the EMO itself creates the very outcome - - -
PN597
THE COMMISSIONER: I am sorry, but wouldn't that turn on the question of merit? There is no merit in the proposition that can't be exceptional.
PN598
MR DALTON: That is right.
PN599
THE COMMISSIONER: Isn't that Gordonstone though? That there was no merit in last in first off. So therefore it couldn't be exceptional. I am going on recollection I am sorry.
PN600
MR DALTON: I am not sure. I think the main reason was that the Act actually provided that that was no longer to be an award provision through inverse inference. Of course it didn't specifically say, last in first off couldn't be in. But because it didn't fall in an allowable matter then that is what the Act said and therefore the Commission said, that's not exceptional the fact that it is not in an award by virtue of the Workplace Relations Act amendments.
PN601
THE COMMISSIONER: But the logic of that is that nothing could be exceptional.
PN602
MR DALTON: I don't know about that because there could be things that the Commission has power to do or put in an award, etcetera. In the context of an EMO it might be - well, that's true as a bland proposition, yes, I was just thinking out loud, that's right. Obviously the fact that it is not allowable gives rise to the EMO question. I think that that was one of the things referred to by the Full Bench. I won't dwell on that. The only other thing I wanted to mention in relation to EMOs was section 120A2 because even if you satisfied that all five limbs of jurisdictional elements in 89A7 are made out, the Commission has to look at section 120A2 which gets back to these safety net arguments.
PN603
That is you can only make an EMO on merit if you are satisfied that it is in the public interest and that it is consistent with the objects of the Act.
PN604
THE COMMISSIONER: Where is the source of the power for the making of an exceptional matters order? Is the source of the power 89A7 or 120A?
PN605
MR DALTON: I think it is 89A7.
PN606
THE COMMISSIONER: Is that the source or is that simply saying that 89A is not constrained in circumstances and the source of the Commissions power to arbitrate is 120A?
PN607
MR DALTON: No, I think it might be section 89.
PN608
THE COMMISSIONER: I see, 120(A) being a constraint on the exercise of that.
PN609
MR DALTON: Of discretion, so, first of all section 89:
PN610
General functions of the commission to prevent and settle industrial disputes so far as possible by conciliation and as a last resort within a limit specified in this Act by arbitration.
PN611
So while that has some qualifications that is the source of power, then section 89(A) limits the scope of industrial disputes for the purposes of exercising that power, thereby limiting the power. Section 89(A) then pegs back that limitation provided certain matters are made out, 89(A)(7) and then section 120(A) on my reading - - -
PN612
THE COMMISSIONER: Is a constraint on the exercise of power.
PN613
MR DALTON: That is right.
PN614
THE COMMISSIONER: I only raise it in the context of your earlier submission about principle 10 and the reference to it to 89(A)(7), that is all I suppose that the answer is a reference, a requirement for a reference does not automatically mean that there will be a Full Bench, the president can refuse the reference.
PN615
MR DALTON: Also an EMO could well be smack bank within safety net, I mean just because something is not technically within the allowable matters it may reflect an earlier test case.
PN616
THE COMMISSIONER: But I thought your submission was that principle 10 required somebody seeking an exception matters order to seek a reference.
PN617
MR DALTON: No, if there is an argument about the safety net status of what is sought, EMO or otherwise, then that application has to be made. So principle 10 is focussing on safety net not on allowability.
PN618
THE COMMISSIONER: I see. So if there is a contest about whether or not it is or is not above or below the safety net. Safety net having earlier been defined as the current award.
PN619
MR DALTON: When you look at the principles it is quite clear that if you are looking to attract arbitral power of the commission to make - all vary, either a new award or another award. I mean it cuts across the board and I think that reference to 89(A)(7) just tries to make sure that all sources of arbitral power under part 6 are caught by that. In relation to the variation order, really rely on the same reasons that I have referred to on the question of merit. That is the claim is above safety net as you pointed out earlier Commissioner, that is an important factor on the question of merit. If you are with me on that point, in my submission it should weigh heavily in favour of the discretion being exercised against the applicants.
PN620
The variation order even if it sought to pick up the people who have fallen through the cracks would treat Victorians more favourably that the rest of Telstra staff because it would extend the scope of gazettal. In circumstances where other states do not enjoy that.
PN621
THE COMMISSIONER: That would not be a new entitlement, that would be a continuation of the exercise that the prerogative of management over a number of years.
PN622
MR DALTON: The only thing I would quibble with on that is your use of the word entitlement.
PN623
THE COMMISSIONER: I see.
PN624
MR DALTON: That is what we are here for. The applicants are asking for an award safety net enforceable entitlement. The third point is - - -
PN625
THE COMMISSIONER: Comply and industrial instrument.
PN626
MR DALTON: That is right. The third point is that it could mean that Telstra comes under further pressure from the ACA regarding service levels. It really depends on, I guess, what the attitude of the ACA would be. If there was an award provision that specifically provided for Telstra in Victoria to get a day that the public do not otherwise get.
PN627
THE COMMISSIONER: Yes.
PN628
MR DALTON: Certainly the issue is there and the last point is that it would obviously mean that customers would get reduced service in regional areas with the addition of a public holiday or half day in the affected regional areas where, at the moment, the position is that can be worked as a normal day.
PN629
THE COMMISSIONER: You do not have any knowledge do you that the ACA would not get you respect to an award of the commission?
PN630
MR DALTON: I do not having anything to put to you on that basis Commissioner other than, if you have a look at the ACA guidelines they refer to public holiday, it is a question of public holiday, a holiday for the public is an award extension of gazettal for public holiday. The issue would be there, it would need to be a subject no doubt of discussions between Telstra and ACA. I am not putting it as highly to say that it would automatically follow that the award would be out of line with ACA guidelines, that it would be up to the ACA presumably. Those are the submissions Commissioner.
PN631
THE COMMISSIONER: Thanks Mr Dalton. Mr Reitano?
PN632
MR REITANO: Could I perhaps deal with the point not in order in which they have dealt with but perhaps in order of what we see as the more important matters for the commission to be appraised of. The first matter I want to deal with is the - I should say, much of what I am going to say is addressed to the narrower of the applications that are before the commission.
PN633
THE COMMISSIONER: Yes.
PN634
MR REITANO: The commission will probably understand why. In saying that and I will come to it right at the end, I think, in what I want to say in reply, I should, right at the outset indicate to the commission, in respect of both applications, it is not a matter for the commission being constrained by what we have applied for and we, I think, said in our outline that the Act deals with that and indeed it may be that when the commission comes to determine the matter that the commission considers the narrower of the applications which is the award variation would more appropriately be made as an exceptional matters order or vice versa, I doubt vice versa will apply.
PN635
Can I firstly got to section 106(2) because Mr Dalton, with respect to him glosses very quickly over what is a very important issue for the commission to deal with and he does so, we say, in manner that would lead the commission to error. In section 106(2) the Act says that:
PN636
After such principles have been established the power of the commission to make or ...(reads)... after the commencement this section.
PN637
The point that is important is that this relates to the making or variation of an award and if one goes back to the definition of, award, in the Act:
PN638
An award is defined as in section 4 an award or order that has been reduced to writing under sub section 143(1) but does not include -
PN639
And I don't need to worry about the exclusion. Interestingly and importantly an award is not defined as an exceptional matters order and not defined to include an exceptional matters order. Indeed when one goes through section 89A7 and section 120 one cannot find but for a sniff that I will come to in a moment, one cannot find any requirement on the Commission to reduce an exceptional matters order to writing under section 143(1).
PN640
Now, while I am in the definitions section I won't read it, but well I will read it:
PN641
An exceptional matters order itself is defined as meaning an order made by the Commission on a matter that is allowed to be included in an industrial dispute because of 89A7.
PN642
I won't go at the moment to 89A7 because it just doesn't have anything that is of relevance and I am only going to be reading it to point out to the Commission there is nothing there. The only matter that is important in respect of this definitional question is section 120A and it is only sub section 1. But once again I say section 120A does not contain any requirement for the Commission to reduce its order to writing under section 143(1) such that would bring an exceptional matters order within the definition of award.
PN643
The only reference is in sub section 1 and it is only a note. It is not part of the substantive Act and it is note 2, exceptional matters orders are published under section 143 in the same way as other orders of the Commission. That does not make it a legislative requirement. Indeed I think the Act's Interpretation Act tells you to ignore notes anyway.
PN644
THE COMMISSIONER: Yes, but our legislation was littered with helpful notes from the draftsperson.
PN645
MR REITANO: Even if one were to give that the most beneficial construction possible it is not still under section 143(1) and that is what imports it into the definition of award sub section 1. A decision of the Commission for example also attracts section 143 but not section 143(1) as I recall it. Well, if it is effecting an award, I am sorry, it does. But there is no requirement in the Act for an exceptional matters order to comply with section 143 at all. That is what takes it out of the definition of award. Section 143(2) is of importance as well while I am there, which provides that:
PN646
Where the Commission makes a decision or determination that A is not an award but B.
PN647
Then it has the three different requirements. Various things follow and I won't read that. The point is that it is clear an unambiguous in our submission that section 106(2) has no application to exceptional matters orders. To the extent that we have been able to see from the Act in any event that there is nothing that would allow a safety net Full Bench or any other Full Bench of this Commission to constrain the power of the Commission to make an exceptional matters order at single member level. Save and except the one thing that I think that the Commission dealt with in arguendo with Mr Dalton and that concerns the question of the public interest and that the Commission might have regard to what a Full Bench has done as being a matter that is persuasive about the public interest. That arises in section 120A.
PN648
Could I then jump because I think my friend dealt with it at a different point. But could I then jump to very briefly the safety net decision of the Commission which is found under tab 4 and principle 10. In the time available I haven't been able to pick up the passage of the decision where the Commission says these are the principles that we are making under section 106 which I am sure is there. I don't know that it is that vital that I do find it now but could I take the Commission to principle 10 on page 358.
PN649
THE COMMISSIONER: Mr Reitano, I don't mean to constrain you at all but do you want to sit until one o'clock to conclude your submissions or would we be adjourning at the usual time?
PN650
MR REITANO: I think we would have a very good chance if finishing if we sat till one o'clock if that's the Commissions preference, it is certainly mine.
PN651
THE COMMISSIONER: Sure, no problem, thank you.
PN652
MR REITANO; Could I take the Commission to principle 10 on page 358 and the first thing to note there is the first sentence:
PN653
An application to make or vary an award for wages or conditions above or below the safety net will be referred to the President of the Commission for consideration as a special case.
PN654
I will come back to another point that I want to make but firstly can I deal with the next sentence:
PN655
Application involving -
PN656
And the word that is important is, involving.
PN657
- a consideration of section 89A7 are subject to this principle.
PN658
Then there is another sentence:
PN659
Applications involving claims to incorporate agreements will not be considered to constitute a special case.
PN660
We say that those two sentences, that is the second and third sentence, applications involving, must be applications which are to make or vary an award that involve either 89A7 considerations or alternatively, it's not a stretch, or alternatively, the incorporation of agreements within. It is the third sentence that really makes it clear, in my respectful submission. Bearing in mind that what the Commission is clearly dealing with here is section 106(2) principles. More importantly, and more relevantly, the Commission could not have in our respectful submission considered itself to be dealing with the making of orders under section 89A(7) any more than it thought it was dealing with orders under section 127 of the Act because there is no relevant provision in the Act that would allow a full bench to constrain a single member acting under 89A(7).
PN661
THE COMMISSIONER: Does the Commission act under 89A(7)? That's the conversation i had with Mr Dalton.
PN662
MR REITANO: I suppose technically the Commission doesn't act under any of 89A because 89A is simply circumscribing the industrial dispute, which otherwise forms a basis of the Commission's power to make orders and awards.
PN663
THE COMMISSIONER: Yes, its around 106, isn't it? No, 105. I take it back, 104.
PN664
MR REITANO: That's the power to arbitrate or settle the dispute by arbitration but the power to make an award or order is obviously 111 from recollection. I say obviously, yes, 111B.
PN665
THE COMMISSIONER: Yes. There are powers contained in 111B. That power is narrowed by 89A for which there is a small window of opportunity in particular circumstances that's envisaged by 89(7) and that small window of opportunity is further constrained by 120A.
PN666
MR REITANO: Yes, and through that window you see my smiling happy face. It's that simple. Finally, before I leave all of this, could I simply add to what I've said about there being nothing that circumscribes the Commission at single member level being bound by the principles developed by the full bench other than what I've already conceded is the question of public interest but could I remind the Commission of the limitation in section 120A(4) of the Act which in itself limits, which operates the limit or circumscribes the power of a single member.
PN667
THE COMMISSIONER: Yes.
PN668
MR REITANO: Which is not relevant here because we are talking about a single business.
PN669
THE COMMISSIONER: But in the public interest it's Mr Dalton's argument that the Commission has decided that the President should have the opportunity to consider whether or not a full bench should be constructed to deal with an exceptional matters order.
PN670
MR REITANO: If my argument on the construction of principle 10 is rejected, yes.
PN671
THE COMMISSIONER: Yes.
PN672
MR REITANO: While I am on there and it does take things out of order but I did have it open, and say that there was another point that I wanted to make and that is in relation to principle 10, if he lives by principle 10 he dies by it. It appears from principle 10 that if the Commission forms the view that the matter is one that goes above or below safety net standards then it will be referred to the President. It seems mandatory so the question would not be for you, Commissioner, to dismiss the application but would apparently be for you to refer it to the President and that would, I presume, come about by reason of the Commission acting on its own motion under the Act as to how that occurs, but it says, will be referred to the President.
PN673
It's not a question of will be dismissed but will be deferred, so if you form the opinion that what we are doing here is trying to take the award above its safety net then it would appear that the application must be referred to the President and there is no discretion to dismiss it, as Mr Dalton suggests you would and we say that is the course you would ultimately take if you consider that the application went above the safety net.
PN674
THE COMMISSIONER: Yes, I follow.
PN675
MR REITANO: Now could I then deal with, picking up my folder again, this question of safety net and I want to do this by reference to two of the decisions that Mr Dalton took you to and the first one is what he refers to as public holidays test case which is found at tab 5 and neatly has in handwriting at the top of it, Public Holidays Test Case. Could I take you to the page I think Mr Dalton took you to, perhaps one page earlier, page 16 of the decision. Perhaps I will just pick it up at the last sentence just before the first dot point, at the bottom of the page:
PN676
With that standard in mind we think the award provision at this time should formally provide
PN677
And then it lists off six days which I won't read. The second dot point lists off three days that I won't read but noting that they are three well known days. The next dot point then says:
PN678
For an additional holiday or payment in lieu which may be a day identified by a government prescription, for example, Melbourne Cup Day or a day otherwise specified for example for a union picnic
PN679
I won't read the next dot point which is a substitute provision and it says:
PN680
An effect of the above provisions is that an amount of leave is reduced by one day in those years wherein Anzac Day falls on a Saturday or Sunday
PN681
It is of course current practice in most States and with respect to other states is accepted by the unions
PN682
In some states the provisions which we have outlined fall below other existing state standards the union propose that the additional leave should be provided in the Commission's awards ...(reads)... safety net standard.
PN683
Could I then jump to - I think what Mr Dalton told us was the Metal Industry standard and I think it is at tab 8 and I think he took the Commission to clause 7.5.1(a) and he identified the 9 and 3 concept and then in paragraph (b) he identified - I think he pointed out, in Victoria, Melbourne Cup Day or a local equivalent. Now, don't know if it is conveniently found anywhere but the clause in question in these proceedings broadly mirrors 7.5.1(a) and there is then subclause (2) which refers to what is called Telstra Day and then there is subclause (3) as I recall which is the additional days gazetted or notified by various statutory authorities. It is that provision and I will call it the proclamation provision, that we say, provides the test case standard of an additional day off.
PN684
What we say is and as you see in the Metals Award, you get Melbourne Cup Day or the local equivalent and on the narrow application that is before the Commission, there are approximately on a benevolent view, 295 I think, according to Mr O'Keefe and 200 odd according to Mr Absolem, people who get neither and we say that they should be entitled to the test case standard and that they should have that day off. Now, I don't know and I am only hazarding a guess about this. I don't know because I can't work out the dates, when Commissioner Lewin dealt with the simplification of the award or under what principles he dealt with it.
PN685
I know that he commenced it well before the decision came down and it may be and I don't want to mislead the Commission by any means, but it may be that he had heard the whole of the matter and then it took him some considerable time and it may be that the principles that apply to the time said, if you've already heard the matter, decide it under the old principles, I don't know. That may explain - - -
PN686
THE COMMISSIONER: But that would only go to the 106 point>
PN687
MR REITANO: Yes. You, I think, Commissioner, asked Mr Dalton a question, was he acting - exceeding his jurisdiction and I think Mr Dalton in substance said, yes.
PN688
THE COMMISSIONER: The timing of the matter may have given rise to an accrued right but didn't invoke 106 point, is the only thing you are raising?
PN689
MR REITANO: That is right. But what we seek to do is not to attack that provision at all but to simply clarify, in effect, the substitute day provision so that everyone is treated equally and that we say is the test case standard. The are the two big points that I wanted to make from what Mr Dalton has said. The only other two matters that I wish to deal with very briefly, one of which I have already dealt with, in fact, is to emphasise to the Commission firstly why we say the matter is exceptional and secondly to deal with the question of the relief the Commission might grant.
PN690
In our outline of submissions, I think we've highlighted about 6 or 7 of the bases upon which the matter is exceptional including the fact that what Telstra has done is a departure and I think you accepted my 25 years, is a departure from 25 years of what it has applied to employees. In doing so, it has discriminated against the people it says it is trying to look after, rural Victorians and about, at the maximum, 500 of them because they don't receive the same entitlement as other and that is exceptional in the sense of the AXA case. In the AXA case the Commission found that amongst other things, that LIFO was something that was not confined to and not exceptional and not peculiar to the Gordonstone Mine or the coal industry and I think there was a schedule put together or where LIFO applied across industry. The Commission said, well that is not an exceptional thing, that is something that has been around for yonks.
PN691
Here, one has sudden departure, discrimination against a small number of employees and no consultation irrespective of what Mr O'Keefe tries to say, happened last year. No consultation. No negotiation. No discussion. It is a trite proposition to suggest that, had someone gone to the CEPU before this or either of my other clients and said to them, look, we've got this problem and we are going to take public holidays off 500 people in the workforce, the CEPU might have said, well, hang on a minute there maybe other ways around this. Instead, Telstra just came in over the top and said, it is gone and these 500 people don't get it any more.
PN692
Now, it is the coincidence of all of those things, the small number of people, their location, the fact that they don't have an entitlement that other people have. The fact that by means of nothing else probably other than accident, they don't get a local day or a Melbourne Cup Day as a holiday and we say that is wholly exceptional in the sense used in the Act. Finally, the only other matter that we would wish to deal with is the question of the relief. I've said that if the Commission is against me on Mr Dalton's reading of the principles, the Commissioner, as constituted would refer the matter to the President for consideration as to whether it should be dealt with by a Full Bench as a special case.
PN693
Alternatively, if we are wrong about the construction of principle 10, we say, that that is the more appropriate course the Commission would take, is to say, look I find myself constrained by section 106, despite the erudite submissions of counsel for the CEPU, there is nothing I can do to help you because you really need to have referred this matter to a Full Bench and I will give you the opportunity to consider whether you want to make that application. Rather than dismissing it it is a nice question that if the commission did dismiss it if we wanted to refer it to a Full Bench we would just notify the next day and seek to have it referred to a Full Bench. There is nothing to be gained from that and the more appropriate course is to give us an opportunity to make such application if we so desire, if it pleases the commission.
PN694
THE COMMISSIONER: Thanks Mr Reitano.
PN695
MR DALTON: I object.
PN696
THE COMMISSIONER: Yes.
PN697
MR DALTON: I was proposing to respond briefly to a couple of matters that Mr Reitano made.
PN698
THE COMMISSIONER: Mr Reitano is indicating that you do not have a right of response.
PN699
MR DALTON: Well, I am asking for that Commissioner.
PN700
THE COMMISSIONER: Very well, and anything that arises Mr Reitano of course you are welcome to - - -
PN701
MR REITANO: We could go on for a very long time.
PN702
THE COMMISSIONER: No, I do not like anybody to feel that they have not had an opportunity to be exhausted.
PN703
MR DALTON: Commissioner, this will be very brief. The reference to section 106 somehow not applying to EMOs in my submission is a very strange and unsustainable one, section 143 and the definition of award under section 4 make if very clear that it covers an order that affects an award, where the commission is of the opinion that that is in fact that is what it is doing. Clearly, and EMO would fit in that category and the commission would be required to record it in writing under section 143 as an award. It is worth noting in 143 there are exceptions and EMO is conspicuously absent from that.
PN704
Principle 4 makes it a requirement that the applicant make the application, Mr Reitano is suggesting that the commission can somehow exercise its of its own motion, at this procedural step. In my submission, that is not the case, it is directly contrary to the statement of principles. Mr Reitano, again I think I made the point earlier, focuses on the change that is the decision of Telstra to no longer to exercise its discretion to apply Melbourne Cup Day across Victoria as being the basis for this exceptionality. In my submission, that is misconstrued because EMOs are to be read in the context of part 6 and part 6 is all about award making at a safety net level. That has to the focus of any argument for any exceptionality and none has been raised here.
PN705
There is no distinction between people, they all get the benefits of 12.7.4 it is just that different areas gazette holidays, half days etc. The fact that it operates differently for people based on where, not accidentally where they choose to live and work is the operation of that clause that is the award safety net issue. If the commission pleases.
PN706
THE COMMISSIONER: Do you wish to emphasise your earlier submissions Mr Reitano?
PN707
MR REITANO: No Commissioner.
PN708
THE COMMISSIONER: Very well. Thank you I will reserve my decision and for those that wish to ring, the practice is that I will notify people when the decision is likely to come down.
ADJOURNED INDEFINITELY [1.05pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
BRIAN DOUGLAS BENNETT, SWORN PN198
EXAMINATION-IN-CHIEF BY MR DALTON PN198
EXHIBIT #D1 WITNESS STATEMENT OF BRIAN DOUGLAS BENNETT PN207
CROSS-EXAMINATION BY MR REITANO PN209
WITNESS WITHDREW PN309
STUART O'KEEFE, SWORN PN322
EXAMINATION-IN-CHIEF BY MR DALTON PN322
EXHIBIT #D2 WITNESS STATEMENT PN330
CROSS-EXAMINATION BY MR REITANO PN340
WITNESS WITHDREW PN444
SOPHIA McCOWAN, SWORN PN446
EXAMINATION-IN-CHIEF BY MR DALTON PN446
EXHIBIT #D3 STATEMENT PN458
WITNESS WITHDREW PN462
EXHIBIT #D4 COMPLETE SUBMISSIONS FROM MR DALTON FOR TELSTRA PN471
EXHIBIT #D5 FOLDER OF MATERIAL AS CONTAINING DECISIONS PN481
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URL: http://www.austlii.edu.au/au/other/AIRCTrans/2001/3526.html