C3558/200, Transcript of Proceedings [2001] AIRCTrans 993 (28 May 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 7280

A 16.5.01

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C No 35582 of 2000

THE COMMUNITY AND PUBLIC SECTOR UNION

and

AAPT CDMA PROPRIETARY LIMITED AND OTHERS

Notification pursuant to section 99 of the Act
concerning a failure to accept within a specified
period a letter of demand and log of claims
relating to the conditions of employment

MELBOURNE

10.01 AM, TUESDAY, 8 MAY 2001

Continued from 7.5.01

PN551

THE COMMISSIONER: Yes, Ms Jones.

PN552

MS JONES: If the Commission please, the first thing I might do as I indicated yesterday with the handing up a copy of Public Service Determination Number 14 of 1921 between the Radio Telephonists Institute of Australia v The Post Master General and the Public Service. Commissioner, if I may, I tender that.

PN553

THE COMMISSIONER: I won't mark it.

PN554

MS JONES: If the Commission pleases, as I indicated last night - yesterday, we are now at a stage in the submission - our reply submissions - where we intend to deal with the evidence of the respondents in some detail and the structure that we will follow is as I said to identify the principal function of the respondent to indicate the rules under which the work that is done falls or the principal function as identification falls and then to deal with whom we say all categories of employees, we submit that the CPSU covers by virtue of those rules.

PN555

I've indicated already that that is not intended to be an exhaustive process but rather to meet the requirement that the submission at the Commission may be sufficiently satisfied to make a dispute finding and I refer to the AMDAHL decision on that point. Having dealt with the employees whom we say - groups of employees who we say are covered, we will then deal with the issue of one aspect of the section 111AAA which is the issue of whether in fact a statement of employment agreement or State award governs the wages and conditions of the particular employees.

PN556

Although I will come to that later on and it is probably appropriate at this point to take the Commission to our written submission which is J8, paragraph 143, where we deal with the issue of the word - meaning of the word "governs" under that section. We begin that by submitting that it is not sufficient for an applicant to assert that wages and conditions of employees are covered by State award of employment agreement for the purposes of section 111AAA. We submit that the Commission must be satisfied in each case that the State instrument governs wages and conditions of employment.

PN557

We then refer to a decision of Deputy President Drake in which she refers to certain authorities that we come to in which she says, at the bottom of page 42 of our submission:

PN558

Govern is a word which infers an active regulation of wages and conditions of employment.

PN559

That is the decision of Deputy President Drake. It is contained in "Theatre Managers Association" and "Greater General Entertainment Proprietary Limited", which is print P7651.

PN560

THE COMMISSIONER: So you draw a distinction between being bound by and being governed?

PN561

MS JONES: Or indeed covered which is a word that the AIG regularly use and govern but certainly, yes, there is a distinction and especially with this common rule award which affectively are a default mechanism but there is a distinction between bound and govern because the Act in other sections refers, just as a matter of simple construction, it is that specific word "govern" that is not found in other sections of the Act. Other sections of the Act refer to parties bound and so forth whereas this actually uses the word "govern".

PN562

THE COMMISSIONER: I raise the question because I'm currently under appeal.

PN563

MS JONES: I see.

PN564

THE COMMISSIONER: On this question.

PN565

MS JONES: I see.

PN566

THE COMMISSIONER: In relation to whether a Federal Award employee in an unfair dismissal is governed by an award, the argument which I rejected was that any employee in receipt of an over-award payment cannot access the Federal Commission because they are not governed by an award and precisely the line of argument that you have used in that the award rate does not apply to them.

PN567

MS JONES: Well, thank you for that. What was the number of your decision, Commissioner?

PN568

THE COMMISSIONER: Well, the appeal is to be considered.

PN569

MS JONES: It is obviously a different area of - but the use of the word "govern" is a specific word. It is a different word. It has a meaning of its own and we do have this decision of Drake but also based on the Full Court of South Australia and it is relevant - and we will come to the evidence in that the rates, for example, of the customer service representatives, the sales executives and other sort of billing analysis type people which are said to be covered by awards are - in fact when you go through the evidence, are market determined and it raises a real issue as to whether in fact governs the wages and conditions of these employees.

PN570

THE COMMISSIONER: Yes, fine, thank you.

PN571

MS JONES: The Full Court of South Australia in Goodares v Fineeni after considering the dictionary meaning of the word "govern" concluded at page 480:

PN572

We are content to adopt the definition of the word "govern" which involves the concept of influencing regulating or controlling the wording of a contract of service.

PN573

If the Commission pleases, we state at paragraph 145 that, in our submission, the onus is on the applicant to demonstrate to the Commission that the particular - that the instrument, the State instrument, referred to does govern the wages and conditions of the particular employees and the AIG in fact have not done this. They have been content to rely, as I said, on words such as "cover" and so forth. We submit that while questions are onus, they are obviously a difficulty question in the Commission, they are the applicant and they ought to have done something more than what was done.

PN574

Nevertheless, we will obviously take up that issue as part of our evidence. So when we deal with "govern" in the evidence, the purpose of going to our submission is that we are very much looking at the evidence in term of whether it governs in the sense of active regulation of wages and conditions of employment. I the Commission pleases, the first respondent that we will deal with is the MacQuarie Corporate Group and the witness statement is P8 and the AIG deal with MacQuarie Corporate at paragraphs beginning paragraph 63 in their submission.

PN575

I'm sorry I haven't marked because I extracted from it the exhibit number of the AIG. So firstly turning to the principal function of the company that is set out - the function is described by the AIG at page 27 in paragraph 63 - sorry, the AIG submission is AIG18. The function is described at the top of page 27 as a provision of account management and various consulting services to assist customers in their telecommunication requirements. As far as that goes, that is an extract from the witness statement but what we wish to focus more on is in fact what does this entail and what is the process by which this occurs because it is that which, we submit, is critical to the issue of rules coverage.

PN576

The discussion on that begins at transcript paragraph number 2526 where Mr Shewan of MacQuarie Corporations begins stating that the customers are commercial and in fact there are two distinct types of services. The first is the supply of the amalgamation of voice traffic services excluding mobile through a single bill and that is set out at paragraph number 2513. At paragraph number 2514, Mr Shewan went on to state:

PN577

A client who buys access to the MacQuarie network in the voice departments gets an amalgamated telephone bill which combines all the services of the customer on a single bill.

PN578

He went on to say at paragraph number 2515 that MacQuarie is reseller as well as owning its own network:

PN579

If either call records wholesale from Telstra and Optus and other carriers and then we rebuild them under MacQuarie, we will rebill them out on the MacQuarie invoice and offer a range of services, valuated services and expertise.

PN580

At paragraph number 2516, he explains that once a client signs up to MacQuarie, then it is MacQuarie that deals with Telstra, Optus in respect of the service that the client gets. At paragraph number 2578 and 79, he points out that MacQuarie uses their capacity as a large purchaser to achieve highest discounts with carriers and in fact they are Telstra's largest single customer outside the Federal Government. The second service that is provided, I indicated that - Mr Shewan stated there were two distinct services, the second one is the access to the data product through the data network.

PN581

Mr Shewan observed that they are licensed as a carried, they have their own network but the installation operation and so forth is done - the servicing is done by contract staff. He notes at paragraph number 2520 that in 1993, which is when they roughly started - originally started, they were small and they did have a licence. Now, clearly - although he didn't know what the licence was, that would have been a past licence because we are talking about the 1991 Act and since they were not a carrier, they must have had a class licence as a reseller of valuated services, telecommunication services.

PN582

There were a series of questions to going into what was the value and the nature of the valuated nature of the service and at paragraph number 2527 he said this in response to a question of what is MacQuarie's attraction to a potential client:

PN583

We claim that we offer and deliver everything that Telstra and Optus promise that they can do but we can do it far more responsibly. We can act as a single point of contact for the customers so they no longer have to deal with Telstra and Optus. We will do that on their behalf and then we will provide other services such as consultation on site moves. We have other services such as facilities, management, we claim that we will deliver at the same cost or better a single point of contact for all their services Nationally.

PN584

He expanded this at paragraph number 2573 where he pointed out that the evaluated telecommunication service comprised advice on how to minimise the cost of the phone bill and that is at 2573 and a cheaper telephone telecommunications service by discounting. That is at 2577. At 2586 he said this in relation to the provision the service minimising the cost of phone calls which is part of the amalgamated bill service:

PN585

We will go through all their prior bills with their previous carrier and identify over charges.

PN586

So what an audit person would do was actually go through there, look at the various agreements they have like leasing arrangements for equipment, where you often pick up errors in Telstra billing, particularly as line rental charges for non existent phone lines.

PN587

The savings are phenomenal. Malaysian Airlines we've identified at least half a million dollars in over-charges by Telstra in a 5 year period.

PN588

At 2528, Mr Shewan agreed that MacQuarie purchases wholesale, rebuild and value adds a service for sale to its corporate clients. A critical part of the function of MacQuarie in providing this service is what is called the billing service and a discussion in that begins at 2545 where he indicates that there's one bill for all carrier, the customer - they provide one bill for all carriers the customer has an account with and he states:

PN589

It would be nothing for a company to have hundreds of phone bills.

PN590

So once a customer signs up, no numbers are changed, he indicated, there's no difference to them other than providing a single bill and amalgamating all those services and the service that is provided, the value added nature of it is their ability to minimise cost through the provision of a single bill both for checking the bills with previous clients and also the sheer amalgamation of the bill itself. There is then some discussion about how the bills - various bills, are tracked and Mr Shewan indicated that data is transmitted from the carriers into a single point within MacQuarie's network.

PN591

They have their own network but the employees who work on that are contracted out as I've indicated and then the bill is generated which expresses all prices and discounts from the carrier base. This is set out at transcript 2547 and I take the Commission to that. The discussion there is really 2547 to 2549 where it is indicated that the data of the use of the bills is transmitted from the carrier through the network, through the switch and then that is fed into the computer upon the billing - they call it billing actually, operate in which to perform their function so described by Mr Shewan.

PN592

All this work indicated is done centrally in Sydney and they are classified in exhibit P8 as the billing administrative team. There's two team leaders and 25 staff and they state that these people are covered by the Clerical and Administrative Employees State Award and I will come to whether in fact they are later on. If the Commission pleases, the AIG at paragraph 65A say this about the rules coverage that it is not a valuated service and they say that it is not incidental either and that in fact this is the comparison with Teletech that I referred to yesterday, they submit that because MacQuarie have a lot of customers, they do not fall into the telecommunications industry.

PN593

They rely on Teletech for that authority. and as I said yesterday, Teletech does not stand for that, Teletech stands for the fact that the telecommunications rule requires determining the principal function of the business and is not a calling rule. We submit that MacQuarie services the telecommunications services at MacQuarie provides falls under 3E(a) or (b) in that firstly they supply and maintain in the sense of ensuring that the service works well rather than the operation of the network.

PN594

A telecommunication service because they are either owning, leasing or interconnecting to an existing carrier's carriage service and the value added is a value added supply for the reasons that we have gone through in the evidence. It is a simple value adding from the amalgamation of the billing. Mr Shewan at paragraph number 2528 in fact agrees that it is a valuated service. It is also incidental if not value added, although we press that point first, in the sense that it relies on the use of telephony and we refer to Pacific Access for that point. We deal with Pacific Access at paragraph 82 of the CPSU submission and it may be appropriate to quickly go there because we do refer to Pacific Access in a minute.

PN595

I mean, occasions in it and at paragraph 82 of the CPSU submission, we quote a part of the Full Bench in which it deals with why they fall in Pacific Access, the principal function of the business which is the production of telephone directories, falls within the telecommunications industry rule. It is because firstly the provision of a telephone or telephony service is not - is a telecommunication of service - sorry, a telephone service because it is fixed wire - is a telecommunication service and that the nature of the directories produced, that is a service or the product is directly related to the telecommunication service.

PN596

In fact its existence and use is based on the telephone service, similarly we say Pacific Access falls within that category in that - sorry, MacQuarie falls within that category in that it is the service that it provides is based on the existence and use of a telecommunications service. It simply can't provide that service without that service being there. So we say it is both - falls within rule 3E(a) because the value added services comes from getting the best price of the day for their customers through their capacity to purchase large amounts of carriage, auditing its customer's previous phone charges and reclaiming any moneys owned and there was significant amounts of money referred to by Mr Shewan in terms of, for example, Malaysian Airlines and providing their data services.

PN597

We submit that the company also - the respondent also - there are callings, or categories of employees that fall within callings of the PREIA rule and we submit that those categories are the billing analysis, employed in the billing section. There's a number of them, they are referred to at exhibit - paragraph 10 of exhibit P8 and I will come to them - back to them. There's billing administration staff, they are referred to that in the witness statement but, in fact, Mr Shewan calls them "billing analysis." There's conversion staff and there's data administration staff.

PN598

Now, the reason that we submit that they fall within the PREIA will - is that they are involved in rates and accounts, there's no doubt about that, that calling; they operate apparatus for the purpose of use for the purpose of voice transmission based on cable operations. That is, the evidence shows that the switches transmit the data into the network of MacQuarie, the - that database system, or that data is transmitted to the computers, which are hooked up to the network, which is operated by the billing analysis and conversions, and so forth, to provide the particular service which is the provision of amalgamated billing and so forth, but the key thing is that there is - and recalling with Comex there is the apparatus that they worked in and the apparatus is used for a particular purpose and the particular purpose is voice transmission over cable operations. It is the cable operations that is critical.

PN599

So turning to the billing staff, Mr Shewan indicated - a discussion on the billing staff by Mr Shewan begins at paragraph number 2560 and, as I said, they - MacQuarie say that the clerical and administrative employees' State Award covers those people. Mr Shewan indicated that the bill must be pertinent to the customer, he says this of the work that is performed:

PN600

Between, the say, 1400 and 1500 clients they would be each specifically given a portfolio of accounts which they must bill each month -

PN601

and that is at paragraph number 2560. They would create a bill that would have all the billing information, it would also contain information pertinent to that customer:

PN602

One of our sales point is that we will configure the bill to the customer's needs. A lot of time they will include things like the general ledger codes, the billers would have to have a database of each individual customer's requirements -

PN603

and that is at paragraph number 2561. The next paragraph:

PN604

You don't just push a button and it comes out, the billers have to be very - they would have to be diligent in creating the bill to the customer's specification. It is a key selling point.

PN605

He went onto say that:

PN606

We use a lot of Microsoft -

PN607

and this is referred to in the AIG submission: Office Product, so we need a basic skill. They would need to - and this is at paragraph number 2564:

PN608

They would need to have attention to detail and the billers would earn somewhere between, say, 38,000 to 45,000 per annum.

PN609

At 2565, he says:

PN610

Most of our people do come from Telstra and other carriers -

PN611

and then he says at 2567:

PN612

Having experience in telecommunications is a definite advantage but it is not the key determinate in selection, it is an advantage because they understand the complexities, the multitudes of numbers. As you can imagine with corporates, you are not dealing with three or four phone lines, it might be thousands, so I think they understand the degree of complexity and attention required -

PN613

and that is at paragraph 2568. When asked about the particular award that they say covers them, which is the State Clerical and Administrative Award, despite saying to - in response to a general question from Mr Parry about whether they want these awards to underpin the terms and conditions of employment of your employees - this question was made at 2512 - he said, "Yes." When asked about the award itself he said he wasn't very familiar with the skill matrix - this is at paragraph number 2569:

PN614

He wasn't very familiar with the skill matrix in the Award -

PN615

he said at 2569 -

PN616

Without studying too exhaustively I would imagine probably billers fall under grade 3.

PN617

Then he goes onto say, in terms of the rates of pay, that - this is at 2571 to 2:

PN618

It would be very hard to get someone at 38,000; starting point is low 40s rate, set by reference to similar positions in the market.

PN619

There is no reference in terms of the wages to the award when asked about how rates of pay were set. The next group of employees in the billing area are categorised under the title: Conversions, and again they are said to be covered by the Clerical State Award, and the key ingredient, Mr Shewan says, at 2590, that:

PN620

Conversions is a key ingredient for everyone, including billing. They are at the same location as the billing staff -

PN621

this is at 2591 and at 2589 he says this - and this is in the AIG submission:

PN622

Conversion is part of that churn process so when a customer comes on board we then identify all the numbers in their pre-existing bill and then, where possible, convert them to Optus lines or other carriers. The job there is they look at the bill and then they dictate - notate all the various services involved and then they put them, they convert the numbers to go through the various processes and forms whereby they are converted to either other carriers or are churned is the vernacular.

PN623

At 2592 to 97 he points out that:

PN624

Conversions interchange with billing and there are similar salaries and many are recruited from Optus and Telstra and re-sellers such as RSL Com and AAPT.

PN625

The next group in the billing are - and there are 50 conversion staff employed by MacQuarie. The next part of billing are employees employed in data administration and there are 10 of those - these are all part of paragraph 10 of exhibit P8 - and Mr Shewan says at 2597 that they do the conversion process for the data:

PN626

They require -

PN627

he said at 2606 -

PN628

a high degree of intricate knowledge and a high level of training.

PN629

These are also claimed to be covered by the Clerical Award. He said at 2606 in relation to where these people might fit in that you would be looking at classification higher up in the award but then he says at 2607 that, in fact:

PN630

MacQuarie are looking at the market to attract staff -

PN631

he said, and I quote:

PN632

...as a candidate short market, so this would be an area where I would say that the base would be a minimum of 45,000 but it could be getting towards 100,000. It is certainly within the high levels of that.

PN633

With respect to the use of the award for skilled jobs, when asked about the use of the award for skilled jobs such as billing, conversions, data administration and consultancy support, which I will come to later, Mr Shewan said this at paragraph number 2632:

PN634

We've just used that award from the outset as a basis for our - I forget at the time, I was referred to it but I can remember reading it and considered that it covered the range of functions that we were doing at the time -

PN635

and then he explained a bit more at 2634:

PN636

In 1993/94 when they started out the functions were generally clerical. Most of it, 90 per cent of the time was we were based behind a computer screen, crunching numbers, entering, collating data. It was highly clerical.

PN637

At 2606 he said in relation to all MacQuarie staff that:

PN638

We have a fair degree of training, on-the-job training, for our own network. Most of our staff at some stage is in training.

PN639

So we submit that - and we will be submitting that, clearly, the Clerical Award does not govern, in an active sense, actively regulating these people. The next group of employees whom we say the CPSU has coverage are employees who are in information technology, and they are at paragraph 16 of P8. There are 65 employees involved and Mr Shewan says this about them at paragraph number 2702, the data information and technology management, and I quote:

PN640

These people are the people that create the system and maintain the systems, like McDill and our provisioning systems. Also, like the request - question programs ...(reads)... create the systems to churn the wires and what not, so you are like having to reinvent the wheel in the MacQuarie mould. We consider ourselves and IT company and this is where we are headed.

PN641

Now, the AIG, if the Commission pleases, at paragraph - at page 31, paragraph 65C, argue that - that professional - firstly, they state half-way through the paragraph:

PN642

Professional engineers and scientists are excluded from the coverage of the CPSU -

PN643

and then they state:

PN644

There is little doubt that employees working in information technology can and often are professional engineers or professional scientists.

PN645

Now, if we have a look at the PAs itself, one can see that from paragraph 18 that, in fact, it is quite clear that they are not all engineering or qualifications or qualifications associated with strictly technicians, there's a range of them and that is acknowledged and we submit that it is not - there is no evidence as to whom has what qualification and the point that we make is that we refer to our earlier submissions on Amdahl v APESMA:

PN646

It is clear that the rules of APESMA may extend to the work of professional engineers in IT industry -

PN647

that is what the Full Bench stated and that is where there they are employed by an IT company and work and perform - the work they perform involves the exercise of engineering skills and qualifications but we submit that it is clear that not all these people are so-called professional engineers or professional scientists and, therefore, on the authority of Amdahl you may be satisfied that there are employees in information technology who can be covered by the CPSU. We submit, as we have submitted from the beginning, that any finessing as to precisely what is the work performed the qualifications exercise is the matter for the award process. That, we say, is consistent with Amdahl.

PN648

There are, obviously, also clerical and administrative employees that we submit that the CPSU covers, such as the data entry people - 10 to 15 in New South Wales, they are described at 2628, that they perform the work of the data entry of telephone numbers. They require accuracy and if they show promise they progress into the billing or conversions, so again, we say, not strictly clerical; the accuracy is a critical part of the service provided and there is a progression, a career path, within the company. The AIG or the witness statement classifies telemarketers as clerical in the sense that they say are covered by the clerical awards for New South Wales and Queensland.

PN649

We submit that they fall under sales, that it is then in that aware and, hence, they can't be said to be governed. So going to sales, there are various categories. The first two are covered - are not covered by awards, they are the data consultancy support people and the provisioning consultant. The data consultant people, there's two in Victoria and one in Queensland, and at 2610 to 11 there work is described by Mr Shewan as:

PN650

A data consultant, for instance, is more or less in the sale process in mapping out a customer so that they were in customer facing. They will be there dealing with customers, trying to sign them up. Their job, one of their roles is almost like a quasi sort of sales position where they go along with our sales team and would be there to answer straight out any data questions.

PN651

It is said here at 2611:

PN652

It's sort of a hybrid role, mapping out a customer's requirements and also customer interfacing -

PN653

so on and so on. The salaries which are set out for data consultants at paragraph number 2613, they are on incomes of 50 - anything from 50 to 75,000 but, in fact, they have data consultants who are on an income of 200,000 per annum. Now, originally the AIG, on behalf of MacQuarie, claimed that they were covered by minimum wage order. It would appear from the submissions that they no longer rely on minimum wage orders in Victoria to assert section 111AAA operates. We therefore submit that they are award free and, in any event, even if they were to say they were to rely on its quite apparent - - -

PN654

THE COMMISSIONER: You say it is not governed?

PN655

MS JONES: That is right. We do deal with the issue of minimum wage orders in some detail in our submission because at that point, unfortunately, we spent a lot of time on it because the AIG, on behalf of their clients, were insisting that they were an instrument that fell under section 111AAA. So we say that they simply don't govern, they can't be - they can't - they don't fall within the definition and so these are award-free people. There's also a provisioning consultants - four in Victoria and two in Queensland - and they are described at paragraph number 2635 as this:

PN656

They completion of orders from the customers so either requisitioning new lines, customers faults. They would be dealing directly with the customer, a customer ringing up saying: this doesn't work or that doesn't work, or can you do this, or I need a new line for here, or my fax doesn't work, or that the line is dead, and they would be dealing, reacting to a customer's request.

PN657

He indicated that the key part of their skilled role to do with the service of MacQuarie is that we can take all the complaints and another selling point - this is at paragraph 2636:

PN658

...and another selling point, we argue why deal with Telstra when you will just ring and you will be put in a queue and you will just get a number and that will be the end of it. Our people will actually see the job through and here is your provisioner, this is his or her name, and if wished to you can speak to them.

PN659

Their wages and salaries - this is at 2648 - are the same as people from conversions and they indicated that the conversion people do progress to provisioning consultants as well, so again, there's this progression and relationship. Telemarketers - it is claimed that telemarketers are covered by the State - there's 10 in New South Wales and one in Queensland, and it is stated that they are covered by the Clerical Administrative Employees Award in New South Wales and Queensland. We submit that - and they are described at 26656 as essentially from a central data base, making appointments for sales people with potential customers.

PN660

We submit that that is a sales function, it is an act which - which the clerical award cannot be said to govern. There are then sales executives, various sales executives, in New South Wales, Queensland, South Australia, Victoria and Western Australia and I will come to them later when I deal with the issue of govern more precisely but there are a range of sales executives. So it is clear from our discussion that we submit and on the evidence that it cannot be said that the Clerical Award governs any aspect of the billing section, that is the billing of analysis, the conversions, the data administration.

PN661

There's a question of the familiar and we submit that what really has happened - and this is evidenced in the evidence of Mr Shewan at 29632 to 4 - is that they obviously had a State award when they started off and, as he indicated, a lot of the work was number crunching and so forth and they've continued to refer to that, although he is not clear whether various classifications falls within that award, but in no sense - they merely continued with an old arrangement despite the fact that, on his own evidence, the work performed is not merely number crunching clerical work. We submit that that award does not govern the wages and conditions of those particular employees. There is no award - - -

PN662

THE COMMISSIONER: You say the "all others" classification wouldn't be sufficient?

PN663

MS JONES: No, we say that the "all others" classification wouldn't be sufficient. Notwithstanding the classification, it is clear that it was an award that was used for clerical number crunching work initially, the work has considerably changed and this is conceded by Mr Shewan in his evidence, it is an old arrangement. We submit that we, as I said, that the telemarketers are not governed because it is inappropriate award for the work that is performed and that the sales, the data consultancy support team and provisioning consultants, there's no award that applies, and this is in Victoria and Queensland.

PN664

In terms of sales executives, the discussion on that is at 2513 and 2677 to 95. We submit that - and they are set out, I'm sorry, at paragraph 11 of P8, there are various sales executives. We submit that the sales executives are not governed by the following awards which the AIG claims on behalf of MacQuarie that they are covered. They are not governed by the Queensland Award, Commercial Travellers' Award, Commercial Travellers' State (Queensland) Award, they are not governed by the Commercial Travellers' (South Australia) Award.

PN665

Where they are in Victoria, reference was made to a minimum wage order, so it is not APT and the Western Australia, there are 47 staff, I think, in Western Australia; we say they are not - they are not governed. It might be appropriate, if the Commission pleases, to go to - or, firstly, in order to demonstrate the issue as to not being governed, at transcript 2513 Mr Shewan says of sales executives:

PN666

They sell the range of services that we offer, which is basically the amalgamation of voice traffic and sell our data network and our recently opened Intelli Centre operation, which is a data centre in Sydney.

PN667

He indicated that - firstly, I should actually correct my submission, we concede that the commercial travellers - and we will come to this in a moment - in New South Wales fall within the classification within that award but we say, because of the rates of pay, it is not governed but in respect of the awards in Queensland and South Australia we submit that the work performed by the sales executives certainly does not fall within those awards. So if I could take you, firstly, to the Queensland Commercial Travellers' Award.

PN668

I think it was in P11 although I'm not - I suspect I've - Clause 4 is the definition in that state - anyway it states and I quote in that definition:

PN669

Commercial traveller shall mean a person employed outside the employee's place of business by a wholesale or partly wholesale manufacturer principally or substantially for the purpose of soliciting wholesale business.

PN670

The classification is clearly confined to selling wholesale for - buyer wholesale for wholesale and the - it is quite clear the customers are commercial customers and the business that sales executive solicited orders for is retail. Similarly, the South Australian Commercial Travellers Award provides at clause 6 - I should say clause 3A indicates that that award is binding on occupations, callings of commercial traveller and also a telephone sales person in sales of articles by wholesale substantially away from the employer's place of business. The commercial traveller definition of clause 6 is engaged - advise that they are engaged as a member of the outside selling staff for two-thirds of a month and this is the critical point engaged in soliciting wholesale business orders which are sold wholesale or re-sale in manufacture or production.

PN671

So we submit that there is no award in Victoria applying, no award in Western Australia. Section 111AAA has no application. The work performed does not fall into the classification definition in the Commercial Travellers Awards in the states of South Australia and Queensland. We concede and Mr - that in relation to the New South Wales that they fall within the technical services definition but what we say is that the - that in any event it does not govern the wages and conditions. The evidence of Mr Shewan at 2679, 2678 - sorry, 2678 to 81 is that the salaries, they are similar across the states and they - there's the market base rates for recruitment, they need to use the market in order to recruit. They would be paid a base rate of around 50,000 to 60,000 per annum, he stated, and then a motor vehicle and so forth.

PN672

So we submit that employees in respect of whom the Commission may be satisfied there's coverage and not governed by a state award are those that fall generally, we've discussed, in the billing section, in the sales, by sales executives, the data consultancy, provisioning consultants, information technology, data entry and we submit that there is - it is not necessary to go into every employee. It is sufficient that there are these groups and they are significant groups of employees, not - even if numbers was relevant. As we have stated, it is our submission and that is supported by authority, that the award process is the appropriate place for the identification of classifications and the issue of the scope of coverage to be bound by an award.

PN673

There is one thing that we do want to just finish off is this - the evidence that comes from many of the companies and that is that there is a community interest in the industry, the telecommunications industry, and that is at transcript 2604 to 5 where he says that he agrees that there is a lot of mobility of employees within the communications industry and said this and I quote:

PN674

We used to think that the industry virtually had a revolving door except for when it came ...(reads)... they would gravitate towards us.

PN675

We indicate at 2605 that as Macquarie has grown there's now greater movement from Macquarie to other resellers. If the Commissioner pleases, that completes Macquarie.

PN676

THE COMMISSIONER: I don't want to inhibit you but there are about 20 companies.

PN677

MS JONES: I realise. I suppose my concern is that the AIG has made a lot about the fact that we have not produced any evidence - - -

PN678

THE COMMISSIONER: Yes.

PN679

MS JONES: - - - and it is quite clear that there is a substantial amount of evidence. It may be if I just leave it to the general description of the transcript page and that you go to that, but I'm very much aware that we don't want to - I don't want to leave my client in a position where it can be said that there wasn't evidence properly put in order to deal with these matters and I am anxious about the time because - - -

PN680

THE COMMISSIONER: Well, if we just did half an hour on each one we would be in some significant difficulty.

PN681

MS JONES: Well, perhaps you might ring a bell at 15 minutes so I can do that. I lose track of time when I'm talking unfortunately and I apologise.

PN682

THE COMMISSIONER: Well, I'm content to examine your - I won't interrupt you but I'm content to examine your submission, to take the approach that you have taken in relation to Macquarie and adopt that approach when I examine each of the companies.

PN683

MS JONES: Right, okay.

PN684

THE COMMISSIONER: It is a matter for you, Ms Jones.

PN685

MS JONES: No, no, that considerably assists and I just really want to be - I am very concerned about the fact that we have been seen to discharge our onus which - - -

PN686

THE COMMISSIONER: Yes.

PN687

MS JONES: - - - is what is being - so - but having heard from you I will now attempt to be efficient. The next one is - and perhaps what I might then focus on is how they might fall in the rules, if the Commission pleases, and then briefly go to the various groups in the transcript reference because, I mean, obviously - well, not obviously, but the AIG submission description is, in our view, somewhat of a gloss over what is actually underneath all that and we don't want that to stand as a summary of the evidence clearly.

PN688

The next one is World Exchange and Mr Simon. It is P13 and the AIG describe the function at paragraph 83 and we refer the Commission to that. We don't - there's no disagreement about what is said there at paragraph 81 by the ARG. What is clear from that is that World Exchange own their own network and the interconnect with other carriers. That is at transcript 3277 and they have indicated that they have a switch in each capital city and so forth and that is set out in the ARG submission.

PN689

There is then the various groups of people that are referred to. There's an operations sub-group - sorry, Operations Support Group and they are set out at paragraph 7 and 8 of P13. At transcript 3292 and 3281 Mr Shewan - sorry, 3296 - Mr Shewan explains what is involved there:

PN690

...and Operations Support Group are basically responsible for all our computer and switching equipment.

PN691

So in this case the database management group and so forth, they - he talks about what maintaining the switch means because his statement uses the word "maintaining" and he says it is really forecasting capacity and looking at utilisation, putting orders in for additional capacity and so forth. That is set out at transcript 3292 and we submit that contrary to what is stated by the ARG that is operating apparatus for the purposes of the PREIA rule and that they cannot be necessarily described as telecommunication engineers or even technicians. Mr Simon says at 3330 that they come from an information technology background because he says we have here a convergence of information and telecommunications.

PN692

Then there is the call centre group of employees and in respect of that those group of employees, we submit, exercise advance skills including fault-finding and that is at transcript 3301. In fact, at paragraph 3336 in response to the advocate for the ASU, Mr Simon said that they don't see such people as clerical employees at all because of the skills exercised and so forth. There's sales employees and there is no award for the sales employees in Brisbane and Sydney. This is at transcript 3332 and 3239 of 40.

PN693

In terms of the rules, and I apologise, we say that World Exchange clearly falls within rule 3E in that it is a provision of telephony service by leasing, interconnecting with carriers and by owning its own network and that the groups that fall within those operation groups which are of the nature of information technology, people, call centre, billing and sales, it also falls within the PREIA rule because there is clearly a telephony - sorry, there's operations people and billing staff who fall - who operate apparatus used for the purpose of cable operations.

PN694

So we submit that there are - if I can be clear - there's no awards that are claimed other than the clerical award in relation to the call centre. I just need to check that, I apologise. Yes, I do need to correct that because in transcript, although in the statement they did not specify an award, that is in P13, in transcript there was a reference to the State Clerical Award in New South Wales and this was at paragraph 3253, but as we've said, that although he referred to that award, in no sense could it be said to govern. The - Mr Simon - there's a detail, quite a detail about the advanced skills they expect from these people and he himself said at paragraph 333 - 36 that they don't see these people as clerical people.

PN695

So we submit that the issue of section 111AAA does not operate and in respect of World Exchange one may be satisfied that there are groups of employees sufficient to make a dispute finding. That was 10 minutes, Commissioner, but it was a shorter one. If the Commission pleases, the next one I wish to deal with is Hutchison and that is contained - evidence of Mr Burke in P10. Now, the functions are set out in transcript, or described, I should say, at 2994. In P10 Mr Burke attested to the fact that Hutchison provide a comprehensive range of wireless telecommunication products. That is at paragraph 4. He said at transcript 2994:

PN696

We have our own network in Sydney and Melbourne called: The Orange One Network. It is essentially a wireless technology mobile phone type of network that allows calls to be made at local rates from the home and then go mobile once you are outside the home area.

PN697

He stated:

PN698

We resell Telstra CDMA -

PN699

and that is in relation to the provision of the wireless mobile phone network. They also resell Optus GSM. They resell Optus Long Distance and they have a smaller Internet service provider service. So the interface between their own mobile network, The Orange One, and the CDMA is the question of how far you roam outside of Sydney and Melbourne. Their network performs some of the work, then they resell Telstra CDMA network to do work outside of that and that is at transcript 2999 and 3000.

PN700

They are licensed, he said at 3004, under the Radio Communications Act. As I've said, he indicated that they have a small internet service provider mainly to corporate customers and that is set out at 3070 to 3074. So we submit that - firstly, what is clear here is although they own their own switches they don't operate through Optical Wire Network, it is Radio Telephony. He said that at 3206 of transcript, but the great majority of their hardware is in the switching centre which is at 3205.

PN701

We submit that their principal function so described, which is the provision of comprehensive wireless telecommunication products through the wireless mobile phone network particularly selling - resell Optus GSM and long distance calls within the PREIA rule. The various callings that fall in are the operations, the technical and support centre, at paragraph 15 of P10, and the billing section which I will come to and the reason this is the case is because they operate apparatus - fall in with the callings of rates and accounts and operations and they operate apparatus which is used for the purpose of radio telephony service.

PN702

The Technical and Operations Group at the switching centre and this is at - the discussion on this is at 2961. They manage the infrastructure and the technical aspects associated with being a carrier. At 3016 Mr Burke stated that they are staffed by technical network operators who, they said at 3109:

PN703

...operate and maintain the wireless network.

PN704

So we submit, bearing in mind the discussion and the PREIA rule, that they fall within that because they operate the wireless network. Now, we do not include the base stations which are situated at the top of the building and there's some discussion of that on 3044 and 3050 of transcript. The billing part of the business is discussed at 3053 of transcript. Mr Burke indicated that a system is used to keep track of the use of service provided to customers is a fairly - and I quote:

PN705

...fairly sophisticated billing system that is technologically connected to the network infrastructure -

PN706

3053. I should say those persons are set out at paragraph 11 of P10. I apologise for that. The staff are in Sydney and Brisbane most and Melbourne, mostly employed in Sydney. He described the process of the tracking which is the customer makes a call; it obviously registers back with the network; there's some sort of technical transfer of the information there to register on the billing system; a bill is produced on a monthly basis that obviously categorise and lists the number of calls you made and charges you accordingly and the bill gets sent out - this is at 3057 of transcript. The AIG at paragraph 68 claim that it is arguable that the work of Hutchison - sorry, I should say principal function of Hutchison is incidental, fought under B but they won't concede it so that is something at least we are over the line.

PN707

THE COMMISSIONER: It is not conceded.

PN708

MS JONES: Yes, I know, but you know, reading behind the - nevertheless, we say that in fact it falls within paragraph A of the rule 3E. Clearly they are supplying a wireless telecommunication service, there's no doubt about that. They may purchase from a carrier and they may re-sell but that makes - that certainly does not exclude them from the 3A as before. Then, of course, if the Commission won't accept it is incidental, but we submit that it is certainly not incidental. Obviously the use and existence is based on the provision of telephony wireless telecommunication service. We submit most clearly that they fall within 3E(a) and that under the 3E(a) rule it would cover the clerical administrative staff. It would not exclude necessarily - technicians are not excluded necessarily.

PN709

The call centre has covered billings and information technology. Now, the AIG say that technicians don't fall within the 3E rule because they say that we are talking about the maintenance and I will come to that. They use the word "maintenance". Firstly they say that the technical employees exclude none of the exclusions in the CPSU rule. We say this is not so. They say the IT people fall within the category of professional engineers and professional scientists and will be excluded on that basis. If the Commission pleases, we submit that the network operations people are not all technicians. There's clearly operation involved and even if they were excluded they are covered by the PREIA rule.

PN710

THE COMMISSIONER: We just might take a short break, Ms Jones, just for 5 minutes.

PN711

MS JONES: Yes.

PN712

THE COMMISSIONER: That is all right. You have been going since 10 o'clock and a short break might be convenient.

SHORT ADJOURNMENT [11.21am]

RESUMED [11.33am]

PN713

THE COMMISSIONER: Yes.

PN714

MS JONES: Thank you. I was dealing with Hutchison and was talking about the groups we say the CPSU covers by virtue of the rules and I have dealt with operators - network operators at the switches. There are the billing people, function people who are set out at paragraph 11 of P10, and at 3058 it is said that: they employ those staff classified as commercial - they employ those staff in the commercial operations group and as information technology - and it is asserted in relation to those that they are covered by the clerical award and they say that they use the award as a fundamental minimum - is the terminology used - that is at 3109. They - Mr Burke agreed to provide the exact rates of pay because he wasn't sure at 3113, but we have not got those, so we are unable to say to what extent what the rates of pay are and so forth. The sales people are another group and they are set out at paragraph 9 of P10. At AIG68, paragraph 68(b)(1), it is said that:

PN715

Clerical sales, call centre administration employees are covered by the State Clerical Award.

PN716

We submit that that is clearly not the case. The Clerical Award does not cover sales employees. They are described at paragraph - sorry - yes, paragraph 2957:

PN717

Calling on customers and ...(reads)... organisations and regional organisations.

PN718

There is a description of the various sale channels and what they do at 3035. We submit that that does not fall within the clerical award. There are 260 such people nationwide. And then there is in terms of coverage the customer service call service, which is in Robina. Actually, I need to clarify that, I don't think that - it's in Queensland - Robina was a bit of a long shot - and it's described at paragraph 3117, described - Mr Burke says:

PN719

The majority of the work handling custom issues is related to their ...(reads)... they actually deal with complaints.

PN720

That is at 3120-21. He states that they - at 3212:

PN721

They must be sufficiently trained and knowledgeable to read for example sophisticated manuals, to deal with complaints.

PN722

In other words, we submit that it is not merely basic clerical skill as is argued by the ASU. Now, in terms of govern at the - the AIG says at paragraph 68 that - State Awards:

PN723

Coverage by State Awards means that no employees because of the coverage by State Awards ...(reads)... within the scope of an industrial dispute.

PN724

We say that is clearly wrong. Sales, as we have said, the AIG state in their submission that it is covered by a clerical award and we say that is inept. There are 47 award-free employees in West Australia - sorry, I will just - I find that emerged in transcript rather than actually in the witness evidence. I will just get the - no, sorry, they are the people in paragraph 12 - there are no named people in the paragraph who are said to be award-free and on examination there managed to be 47 of those sales employees in West Australia. 3137. No coverage, no award coverage, unless it was said they were performing similar work to sales and other states.

PN725

So we submit that in Victoria the sales people in Victoria are award-free. It is claimed that they fall within the New South Wales, also the commercial - despite what the AIG submission says - the statement refers to as Commercial Travellers' Award. In New South Wales, yes, they do fall within the classification and a large part of that is selling for - on sale by retail by agents to the 711s and so forth - but the rate - it's quite clear that there is the assessment of rates, or determination of rates that pay a very much market rate-based. It's not a question of a small over award payment. At paragraph 3144 and 3157, it is set out there that there is a very competitive telecommunications system - it's very competitive for these type of people. They are key people and they need to be - keep up with the market rates.

PN726

At 68(d), the AIG refer to Federal Awards and we submit that for the reasons that are set out in our submission under section 111AAA, they do not fall within the scope of section 111AAA. The AIG notes that this may be the case at paragraph 68(d), and in which case it would - says:

PN727

It is arguable that a Federal Award does fall within section 111AAA.

PN728

We submit that it does not and we dealt with this position in our written submission at paragraph 132, where we dealt with Hutchison's Federal awards and Certified Agreements. We submit that there is no doubt that it is true that the definition for industrial authority does include a reference to - as the AIG says section 4 does include State Award - a matter that has been referred by an industrial authority and there was a referral of powers, but given that it is not clear whether that is the case on the face of the word says "ambiguity" it is appropriate to refer to the legislative intent in relation to the section and that is set out at paragraphs 136, based on a decision of Commissioner Drake, and it is clear that the proposed intention is that employees should be free to enter the jurisdiction of their own choice, and ensure that Federal Award coverage will only displace State coverage in certain circumstances.

PN729

Now, these people are already covered by a Federal Award. In terms of the intent of the section which is to stop the uncontrolled, if you like, movement from State to Federal awards. In fact these are Federal awards already and, hence, section 111AAA has no operation really to do in relation to that. It is possible as the AIG concedes, that those - well, it is certainly the case that the existence of the Federal award is a relevant argument under section 41(1)(d), but it is certainly not the case that they fall within, given the intention of that section, section 111AAA. There is a claim that the sales people in Queensland are covered by the Commercial Travellers' Award. I have taken you to the definition. That only covers wholesale, so they are clearly not - they don't actually fall within the classification and we accept that they do not fall within the New South Wales classification in the sense that they are doing for resale as well.

PN730

We submit that the rates of pay that have set a market rate determination means that the award does not govern in the terms of 111AAA, the wages and conditions of these particular employees because it is not a question of a mere over-award payment, but the actual determination of the rates by the market. It is not an over-award payment at one site to compensate for something, but actually the determination of the rates based on the market because of the sheer competitiveness of the industry. Switches - the technical network operations people set out at paragraph 14 are award-free so, hence, the issue of govern does not arise.

PN731

In relation to billing, the AIG say they are covered by the Victorian Federal Award and we refer to our submissions earlier - that is not an award - a State award for the purpose of section 111AAA and they also claim that they are covered by the New South Wales - in New South Wales they are covered by the New South Wales Clerical Employees Award. I am sorry, they are not covered - in New South Wales and Queensland there is also not an award that is asserted. I just need to check that, I'm sorry.

PN732

One of the points that ought to be made in relation to the billing function as to whether they are in fact covered by the State awards is that the evidence shows that a lot of them are information technology people. It is not clear that they are clerical employees - and I have referred to that evidence 3058 of transcript - and as I say we can't ascertain by what the rates - we have no knowledge of the rates but the award is used as a fundamental minimum. We submit that that does not equate to governing wages and conditions of employment.

PN733

Despite the fact that information technology people in billing are said to be covered by the Clerical Employees, generally, there is no award set to cover them. They are set out in paragraph 17 and 18. There is 149 of those employees. We say that the AIG at paragraph 58(b)(3) is fairly wrong. There is no evidence to show that they fall within professional engineers exemption and, again, I refer to my earlier discussion about ..... and all that stands for is that there may be, but it will have to depend on the work performed and the qualification exercised. Hence, we submit that the IT people are not excluded. They are covered and they are not governed by a State award. Now, we move to the customer service centre in Queensland, which operates in relation to the Orange 1 network and GCM Optus.

PN734

The company refers to the Second Tier Clerical Employees Award as coverage for that customer service centre - the Restructure And Efficiency Agreement underpinned by clerical employees, and it may be appropriate just to go to that at transcript 2967, because there is certainly an issue as to whom that restructuring and efficiency agreement covers and its status in terms of governing - and Mr Parry I think handed a copy out yesterday to you Commissioner.

PN735

MR PARRY: If the Commission pleases, no, I didn't hand a copy up. I have distributed to the parties at the bar table a copy of the document I was referring to yesterday. The extract from the Queensland Government Industrial Gazette, which refers to disagreement. I should indicate that already tendered in these proceedings is a document which is part of exhibit P12, which the Commission might recall - I think it is exhibit P12 - is an agreement just headed: Restructuring Agreement, or some such - - -

PN736

THE COMMISSIONER: Yes.

PN737

MR PARRY: This, what I propose tendering now, is an extract from the Queensland Government Industrial Gazette which contains an agreement in the same form as that on my reading of it. I have compared the wording of what I'm handing up now to what is in exhibit P12, and it appears to be that agreement, so I tender that document.

EXHIBIT #P21 EXTRACT FROM THE QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

PN738

MS JONES: If the Commission pleases, the discussion on that instrument was at paragraph 3129 of the proceedings - it commenced there. That is in fact where he said that they were covered - Mr Burke said they were covered by the customer service call centre - covered by this agreement - and in 3099 there was a question as to its emergence. It's late emergence in the proceedings in the sense that it wasn't referred to in the statement but later, but the critical thing is that 3093 - or the critical section - where there is the discussion about the status - and we would submit that what is relevant is this part, where it says that - just the general discussion as to how the agreement which covered originally - I should ..... a regional function as, if you recall, a paging company - a message paging company - and in fact that is supported by exhibit P21, because it is quite clear in its terms - and the AIG does acknowledge that, there is nothing at paragraph 67, page 33 and 35, that it applied to the messaging service part of a company.

PN739

Now, apart from issues of transmission as to how something went from Bell Organisation to Hutchison and setting that aside and, hence, whether it does in fact apply even to the external paging part of the system, it is clear that the agreement applies to the external paging service that has said, it is an agreement between the Bell Organisation - this is at clause 1 - and their employees who operate external paging systems. And the award coverage is - the agreement applies except to the extent - and if it does not, then, the Clerks And Switchboard Attendants Award State comes into play.

PN740

Now, our submission is that even presuming there was some sort of - one can accept that legally Hutchison is bound by this award, or covered through some transmission process - what is more critical is that they - it does not cover customer service centre employees, and it can certainly not be said to govern in any sense. It is directed to external paging - the messaging part of the service - again, a bit like Macquarie, an arrangement that was in place, the company grew, functions changed and we submit that that award is inept - sorry, the agreement - the Structural Efficiency Second Tier Agreement is simply - is inept to the customer service centre. There is no reference to it and so it does not govern.

PN741

There is just one aspect that we would refer to very quickly in relation to - which we have picked up before - in relation to Hutchison - and that is the community of interest issue amongst the call centre employees. At paragraph - sorry, transcript I should take you there, if the Commission pleases, 3246. It is said by Mr Burke:

PN742

People see that they want to move into the telecommunications industry as a career and they see the call centre as a means of moving into that. We often employ staff and put a lot of training and development into them.

PN743

There is also a further discussion at 3299 and 3300 - and I won't take the Commission there. So we submit that - again, in relation to this company, a dispute finding may be made. The Commission may be satisfied that the following groups of employees are covered by the CPSUs rules and are not - and that the Commission is not required to cease dealing with a dispute by virtue of section 111AAA, because their wages and conditions are not so governed and they are the network operations group, the sales, in Victoria, West Australia, Queensland certainly, but we also include New South Wales. The billing employees, the information technology employees and the customer service centre in Queensland. The next company that I wish to deal with RSL Com, and that is contained in the witness statement, P14.

PN744

Briefly, the principal function is described at 3444 of transcript by a Mr Russett, a six-wire and voice date and mobile telephony products through direct sales, team or mobile dealer work, network, the fixed wire to corporate companies and the mobile to residential and small business and Digiplus is a service that combines fixed wire mobile and internet products to residential customers on a single bill. That is set out in RSL01. Mr Russett says on behalf of RSL Com that they are a cost leader, at transcript 3444, in this area.

PN745

In relation to their fixed wire, they own and operate the switches but not the fixed line cables in between the switches and aside from the fact that the company no longer uses voice or provides voice over Internet - this is at transcript 3376 - the description of its functions contained in J6 were correct. The switches are maintained by contractors by Mr Russett said at paragraph 3412 that they are operated by network operations people. The network operations system, the functions they perform are described as this, to change the direction of where calls are connected to - 3412 - make decisions about which carriers capacity to use on the basis of lowest cost and best quality, 3415.

PN746

He says, at 3419, it is clear that they are not technicians as such, their responsibility it to keep the network running, keep the costs down and ensure that when it becomes economically unviable to an economic viability to expand the network it is done in a sensible manner by commissioning Ericsson to expand it. That is at 3430. We submit that it falls with the PREI rule, the operations group, the network operations group operating switches that are associated with cable operations in the provision of the various telephony services and it falls under the AIG says that RSLCOM is not in fact ancillary. This is at paragraph 86A. We submit that it falls under 3EA in the sense that it does value add and repackage the supply of the telecommunication service as defined and the supplier went over in quite detail yesterday, I won't go to that.

PN747

There reference to the value adding in terms of Digiplus is at transcript 3444 and refer to themselves as a cost leader, I have referred to that, but also there is value adding in terms of the Optus side, reselling the Optus side and this is at transcript 3491. On the Optus side we have our own rating, our own rating so their own rates, we can tailor them to what we perceive the market decides. They are just access and usage fees and so forth so they compete, repackage and produce a lower cost product for the customer. It is as repackaging thing, repacking value added provision of the service.

PN748

The groups of employees - so it is a reseller, a value added reseller falling within (a). If it were to be - if the Commissioner weren't satisfied then clearly it is the principle function is incidental in terms of specific access to the provision of a telecommunication service but we most strenuously submit that in fact the principle function falls within (a) of rule 3E. The groups of employees or callings covered, we submit are the customer service representatives, there is 450, various sales employees, network operations, and in terms of the issue of governing we say that the following groups are governed.

PN749

We accept, if the Commission pleases, that - we submit that sales employees are not governed in this sense, which is that in relation to New South Wales representatives the commercial travellers award does not extend there to those who are involved in fixed wire business to business, that is retailers. Obviously, there is a lot in terms of the mobile, there is - they solicit orders through dealers but there is the fixed wire side where there are - it is strictly to retail. Also, we refer to the evidence of Mr Russett, where he said this in relation to the use of the Award which we say is not a very convincing evidence in support of the contention that they govern, this is at paragraph 346 and 3472, begins at 3463:

PN750

We are not sure of the legal title ...(reads)... there is certainly no evidence.

PN751

This is at 3464:

PN752

My staff look into the legal requirements of which we have got to comply and I consider those awards to be legal requirements of which we have got to comply.

PN753

That is at 3472. That is not, we submit, any evidence to support the concept that they are governing. So even if the Commercial Travellers Award is said to cover the mobile side we submit that it is not a question, it can't be said that they are being governed by that but there is also the fixed wire which is by retail and therefore excluded from New South Wales. There is no award in Queensland. It was discovered in cross-examination, the statement reads, I should just preface this as if all the operations are in New South Wales, but on cross-examination they had offices in Brisbane and Melbourne. Part of those offices were sales representatives, three in Brisbane and 14 in Melbourne. So we submit that they are covered.

PN754

The tele sales representatives in paragraph 7, it is argued that they are covered by the New South Wales clerical award. We submit that that is not apt. Hence they are not governed by that award and obviously there is the network operations group. The exposure of the sales people in Queensland and Melbourne occurred on and around transcript paragraph 3402 and 3474. The network operations group, the AIG, at paragraph 86C, submit that they are either technicians or professional engineers but we submit it is clear from transcript 3419 and 30 that these are operators of software, they fault find the line to ensure that there is the best cost, best quality service provided as between the various carriers. We submit they are not professional engineers as claimed by the AIG. At paragraph 13 of Mr Russett's witness statement, it can be seen that - it is said that they hold tertiary qualifications in information technology related subjects. So we submit that they are not - the submission of the AIG at 86C is clearly wrong.

PN755

There is the billing section at Digiplus and I simply refer you to my earlier discussions in relation to other companies about the significance of the billing section, the exercise of the skills involved. The evidence there is transcript 3444 and 3489, the importance of the accuracy and the billing through Digiplus, the savings to the customers, hence the importance of those skills. So if the Commission pleases, we submit that in relation to RLSCOM the Commission can be satisfied that the following groups may be covered and not excluded by section 111AAA, the very sales people that I have referred to, the network operations group and those that fall within the billing section of the company.

PN756

If the Commission pleases, the next company that I would like to go to is Global 1. It is contained in the witness statement, the evidence witness statement is P9. If the Commission pleases, the first thing to note is other than clerical employees, set out in paragraph 9 and 10. All the employees are said to be award or there is no award claimed, I should say, so section 111AAA only comes through that. The principle function stated by Ms Carroll - sorry, paragraph 4 of P9, is the supply of voice and data products to corporations and wholesale carriers.

PN757

There is a description of how that is done which is contained in the AIG and we have no quarrel with that description at - it is at paragraph 78 at page 45. So there is a provision of data and voice telephony by fixed line. They are a reseller but they own their own switches, is common phenomenon. The data and voice telephony as explained by Ms Carroll, at 27336 comes in on a fixed line cable and then through switches either owned by Global 1 or leased from carriers. They provide the data and voice telephony through various locations and switched through various locations in Australia and globally, that is at 2731 and 2.

PN758

We submit that - and also it is to be noted that as they own their own switches of the 23 so-called technicians referred to in P9, 28 are network engineers, and at 2741 to 43 of Ms Carroll's evidence she indicates that they are responsible for the maintenance and the operation of the lines and are connected to the Global 1 switches. The installation is obviously contracted out. There is another group of employees called technical officers, again, showing how the term technical does not mean technician as is strictly understood and it is a word that is used to describe various different sort of categories.

PN759

They are at paragraph 19 of P9, and they are employed in the customer call centre function. It is a critical function within the efficient operation of the company. This is stated at 2761, and Ms Carroll says, describes them as: the first level trouble shooting type employees. They actually take calls from customers and follow through and deal with the fault and it is critical because they are corporate customers and they must have their lines open at all times. There is a discussion outline of this at 2725 and 2760 of transcript. She explains at 2786, that the positions are advertised as call centre consultants because of the 24-hour times 6-7 environment.

PN760

So they work in a call centre but they are the trouble shooting employees, they operate apparatus to ensure that faults are managed through to their resolution. So we submit in terms of the rules that the technical officers fall within that category, employed in the call centre of the PREIA rule, they fall within the calling of operation because they do operate apparatus which is connected to the - as well as the people who actually work on the switches, I mean, there are employees who do that, they operate apparatus for the purpose of cable operations. The functions performed is ensuring through using the computers on which they work that the faults are dealt with to resolution which means, essentially, that lines are cleared and lines are switched and so forth.

PN761

They fall within the 3E telecommunications rule, we submit. We submit that the AIG is wrong, paragraph 79, they say that Global 1 is in fact like Teletech, and again, I think it is this notion that somehow if you serve more than one customer you are a Teletech. I will have to check on that. As I have said, I have got - as I said Teletech did not decide that. We say that they are wrong because the principle function as described by Global 1 is that they supply and maintain data and voice telephony service through leasing fixed lines, owning and operating switches to companies so that they clearly fall within paragraph A of rule 3E and if not then obviously they are incidental in the sense that their service relies on voice telephony by fixed transmission, there is no other way of looking at it.

PN762

We submit that the CPSU covers the IT people, there are four of those, and they are dealt with at paragraph 22, the statement and transcript, 2789. There is no evidence that these people are professional engineers or technicians as claimed by the AIG, in paragraph 80. They cover the sales people who are detailed at paragraph 15, and they are discussed at transcript 2769 to 70. I was just checking whether they nevertheless were still said to be award free. The call centre employee, the technical officers, we submit that they clearly fall within the coverage. The AIG says that they are excluded by the various exclusions in the CPSUs rule. There is no evidence to support that. I have gone through the functions of these employees, transcript 2725 and 60. We submit that they are clearly operators and are operators of software apparatus. That is at transcript 2775. So they are the technical officers at paragraph 19.

PN763

The network engineers at 2791, it is conceded that they may not have qualifications. There is certainly no evidence that they are qualified as engineers and operate that at work and there is also, we would just note that at transcript 2775, again, the community of interest issue amongst the call centre technical trouble shooters, they see themselves very much part of a telecommunications industry and there is some recruitment from other companies. So we submit that the Commission can be satisfied that in terms of making a dispute finding that the following groups are covered by the CPSU rules and are not governed by a State employment or award, sales employee, the call centre trouble shooter, the technical officers, the network engineering and the information technology people.

PN764

If the Commission pleases, the next company that I wish to deal with is AAPT which is contained in the witness statement - description evidence is contained in the witness statement of Mr Napper. The principal function is described at transcript 1827 as a mobile service business - sorry, at 1965, as telecommunications carrier, voice and data services. Essentially it is said we are a telephony business. That they own their own fibre optic network and they inter connect with Telstra lines equipment which enables tracking customer usage.

PN765

So they are a telephony business, a telecommunications carrier, voice and data service, they purchase capacity and inter connect. They are a reseller and they now own their own new optic fibre network. If the Commission pleases, it is relevant to look at the network. They employ people who design cable network, ensuring it is built to specification and check in accordance with the design instructions. That is at paragraph 1889 to 92. The installation is done by contract of certain - and installation of others by AAPT employees. Importantly, there are the technical officer, the technical specialists who are referred to at paragraph 16 of P5, and they:

PN766

Keep the network running as compared to the people who design the network.

PN767

This is at paragraph 1892 and 93. The technical officers work at the switching stations, 2174. The do the mainstream hands on work associated with the switching. Then there is also a billing department which is connected to the network - this is at 1912 - and the apparatus is worked on for the purpose of transmitting data, explains this - this is explained by Mr Napper at 2178 where essentially there is a computer connection that takes the data generated by the switching to keep track of the usage of customers. He refers to the data coming through from the switching is a down-load of information at 2178. We submit that the principal function, as given in evidence, falls within the PREIA rule in the sense that they employ, as I've indicated, people who design and inspect the cable network - and this is at 1889 to 92 - and they also have operators, technical officers in the network - paragraph 16 they are covered - whose work is to operate the system not merely maintain, their job is to keep the network running or operating.

PN768

We submit that they fall within the calling because they are operators, or they inspect the apparatus which is used for cable operations to keep the network - both wireless - sorry, the cable operations. Will you just excuse me? Sorry, wireless and cable, so both telephony and cable operations, I beg your pardon. The billing functions I have referred to, so they are the rates and accounts calling. I should have mentioned, but basically pretty obviously, the AIG argues that the PREIA rule is not relevant, so I haven't really gone through that. We say that they fall within three - the telecommunications rule. The AIG say that it is arguable but they won't concede it - and that is at paragraph 71A - that there is ancillary.

PN769

We submit that they fall within paragraph - rule 3E(a) because they are a carrier of voice and data services, telephony services, they purchase capacity, they interconnect with Telstra and as well as that they own their own fibre optic network. The reasons for the movement to fibre optic network is explained at 2169 of transcript. We submit that - and obviously given - despite the fact that our strong submission is they fall within 3E(a), if not then clearly they are incidental and ancillary, in the sense of Pacific Access the service is reliant on the telephony business. But we submit that they clearly are 3(a), there is no doubt about that, they fall within 3(a).

PN770

Now, in terms of coverage of groups of employees and governing, at - there are customer service representatives employed in Bendigo, there are 300 of those, and they were originally said to be subject to the communications sector minimum wage order, that is not so. We cover them, the CPSU covers them and there is no issue as to governing. It is to be noted that interestingly AAPT stated at 2141 that they are actually not arguing eligibility, this is Mr Napper's statement, it was simply award coverage. The AIG says that it is telegraphy work.

PN771

We submit that that is simply a nonsense. It is a - the description of the - it is a call centre and in any event they relied on the communications sector minimum wage order in the first place which is really - emerges from the CPSU so we simply - we submit that that is really an argument that cannot be substantiated. There is another small call centre called Vic One. There is also a call centre in New South Wales for residential customers and we - it is said that the New South Wales employees - this is at 2074 - perform the same functions in Bendigo, and these are set out at 1957.

PN772

There is some discussion at 1955 to 1957 as to the nature of the skills to be exercised, this is in relation to Bendigo but it was said that the same functions were performed in New South Wales. There is a response to a question by you, Commissioner, 1966, as to the extent to which they are required to deal with complaints and fault find to resolution. We submit that although they do the same functions as Bendigo the rates of pay are different, and this is set out - I am sorry, I just need to find that, if you will excuse me - yes, I am sorry, at 2088 and 91 and 2081, Bendigo, the base rate begins at 28 - there is one rate of 28,000, in New South Wales it is 22,000 - there is two grades, 22,000 and 33,000, and that is at 208891, and asked why the variation, the answer, at 2137, is that: because they are based on a market based assessment.

PN773

There are sales employees, 50 in Victoria, at transcript 1845, and 20 in South Australia. Before I go to the sales it might be appropriate at this stage - I have just noted the rates of pay - to note that in the New South Wales Clerical State Award there is actually an exemption at clause 40 which must be borne in mind in terms of the govern issue. It provides, clause 40, acceptance to the provisions of sub-clause and there is various clauses set out:

PN774

This award shall not apply to employees employed by the week who are in receipt of a weekly wage in excess of 15 per cent above the rate of pay provided for in the award.

PN775

It will be seen that it is also an argument in relation to MacQuarie, because there was a New South Wales clerical award there, and I failed to bring that up there. But the rates of pay - the G3 rate is currently - 15 per cent over the G3 rate is where they are commonly - C3 rate, sorry, where they are commonly placed is $565.80 per week or $29,421 per annum. So in relation to MacQuarie, certainly there is - they would be excluded by the exemptions in any event. Now, going to the sales employees, as I said, there is 50 in Victoria where there is no award and so hence the AIGs submission at paragraph 71C that 150 sales employees are covered by awards is just simply wrong because there is non claimed in Victoria.

PN776

In Queensland there are 35 employees who are claimed to be covered by the award. We submit that that is not correct because, in fact, they don't fall within the classification definition. When asked by yourself: how does Mr - how did Mr Napper see the commercial travellers working to solicit wholesale business, Mr Napper answered at 2003:

PN777

Basically we've just adopted that definition to cover, that is our best fit.

PN778

We submit that that is not sufficient to support the concept of govern. The function of the sales executive - 2019 - is to attract business away from other providers of telephony services, to retail customers, so it is a retail situation, not wholesale, and falls outside the Queensland award. Similarly, for New South Wales we submit the same thing, that the - at transcript 2027 and 30, it does not fall within the resale or wholesale part of that definition in the New South Wales Commercial Travellers Award and it is not a question of not claimed that it is a technical service.

PN779

Similarly for South Australia, where there are sales people - and this is referred to at 2021 - the Commercial Travellers Award wasn't tendered at the time, although it was subsequently, I make nothing of that, but Mr Napper said, in relation to that at the time: that award, it is a similar classification, I can't specifically remember the definition, it is similar as it is in New South Wales, from memory. Well, it is not exactly similar but nevertheless the same position applies if you look at clause 3A(6) of that award, it is about soliciting wholesale business sold for - wholesale for resale and it does not fall within - and hence the work that they do does not fall within that award, they are not governed by that award.

PN780

There is the 740 network operations people in which there is no award, so the coverage that we claim in relation to that, I have mentioned earlier, is not affected and there are the billing people referred to and it is not clear to us but it seems that they do not claim that there is an award covering them. So it is clear that really in the case of AAPT we have a situation where the majority of employees, that is in the Bendigo call centre, a significant number at least, are covered by the CPSU 3E rule and certainly not subject to a section 111AAA application. We submit there could be no question about a dispute finding.

PN781

So the people that we claim the Commission may be satisfied the CPSU covers and are not excluded by virtue of section 111AAA are the community - community, I am terribly sorry - customer service representatives, 300 in Victoria, 90 in New South Wales; billings and the head office, New South Wales, there is 60 to 70 apparently award free; there are sales people - various sales people in the States that I have gone through, Queensland - Victoria, Queensland, New South Wales and South Australia; and the network operations people, there are at least 50 so-called technical officers who are not necessarily technicians or professional engineers as claimed by the AIG. That completes my - - -

PN782

THE COMMISSIONER: Is that a convenient time?

PN783

MS JONES: Yes.

PN784

THE COMMISSIONER: Adjourned until 2.15.

PN785

MR TAMPLIN: Sir, can I just - - -

PN786

THE COMMISSIONER: Yes, Mr - - -

PN787

MR TAMPLIN: - - - raise a point? I, along with others, have flights to catch and I am just interested in how far we are going to go in to the day and what adjustments I should potentially make to that. I would have to say - and I am not wishing to come across my colleague - but there is a great deal of information and submissions being put that some of them are of complexity. It may facilitate that something be finalised in writing and only consideration of the Commission.

PN788

THE COMMISSIONER: Thank you, Mr Tamplin. Well, in answer to your first question, I have another matter listed at 4.15.

PN789

MR TAMPLIN: Yes.

PN790

MS JONES: Might I just say, in relation to the second point, is that we are the applicants, they have put their submissions, we are doing our oral submission in reply, unless they can demonstrate it is new material - - -

PN791

THE COMMISSIONER: Yes.

PN792

MS JONES: - - - we submit there is nothing new, it is directly on the evidence, and it is complicated but it is necessary to go through, it can't exercise it.

PN793

THE COMMISSIONER: Yes, thanks, Ms Jones. We will deal with that, if necessary, later in the day. The matter is adjourned until 2.15.

LUNCHEON ADJOURNMENT [12.45pm]

RESUMED [2.19pm]

PN794

THE COMMISSIONER: Yes, Ms Jones?

PN795

MS JONES: I am now up to the respondent Card Call, which is contained in a witness statement, P7, signed by Mr Stevens on their behalf. The principal function, as set out at paragraph 4 of P7, is the sale of pre-paid phone cards enabling customers to make international and national calls and at transcript it is said that - at 2316 and 2319 - that this includes as well valuated services such as voicemail and E-mail and Internet access. The card is accessed by a tone pulse when dialled into, that is at 2327 to 30, and the value to the customer, which is set out at transcript 2332 and 33, is the convenience and cheaper calls while travelling internationally.

PN796

When asked why one would buy a Card Call instead of a Telstra card Mr Stevens responded, at 2350 to 2351: because the value of the call card was its re-chargeability and voicemail capacity. To provide the service the company purchases minutes at a set rate wholesale from carriers such as AAPT, Telstra WorldxChange and resell through the medium of the cards, and that is at 2335, 38 and 42. If the Commission pleases, it is submitted that the - I am sorry, that the - we reject the AIGs submission at 77A that the business is not incidental for the provision they state, and I quote:

PN797

The same argument would apply to a person selling travel cards in Bourke Street.

PN798

We submit that, with respect, that ignores how the process - how the service is provided, and that is through the purchasing of a telecommunication carriage service. It is a nonsense to make that comparison and ought not to be entertained. So in making that statement the AIG essentially ignores the reselling and valuating of carrier capacity that is clearly in the evidence. We submit, therefore, that the - that Card Call falls within 3A - 3E(a) and (b) in the sense that it purchases - it provides the supply of fixed line telephony and it does through the purchasing of capacity and value adds to that through - in ways that were outlined by Mr Stevens, which is the cheaper calls, the re-chargeability and the voicemail additions to the cards.

PN799

If it is not 3E(a) then it is certainly incidental in the sense that it is based on the telephony system, its whole existence and use in the terms of Pacific Access is that it is based on the telephony system. Under that rule we submit that there is coverage of - firstly, I should say, we also submit that the PREIA rule is relevant in that you will note that at paragraph 9 there is reference to employees who maintain the Card Call system and the telephony switch, there is reference to the - they are categorised as telecommunications technicians. Nevertheless, we say that they are really, in effect, operating the apparatus.

PN800

At paragraph 2323 Mr Stevens said that the computer network routes calls and checks balances of each person's cards that log on and their - and it maintains a Card Call - they maintain the Card Call system using a computerised system to clean blocked channels, the functions of the people who operate those computers is to look at capacity, where the calls are coming from, future calls, and to ensure that there is no blocked channels and that there is channels available and also to look at future development with third party software developers, that is at paragraph 2419.

PN801

In other words, as he stated at paragraph 2449, their role is to monitor and ensure the efficient operation of the system. So we submit that they fall within the PREIA rule in that they are operating apparatus used for the purpose of cable operations for telephony. There is also, within the PREIA rule, billing function, there are 25 operators - they are the telephone operators customer service - there are 25 operators - this is set out at 2359 to 64 - who are on a 1300 number and Mr Stevens explained:

PN802

The switch -

PN803

at 2368 -

PN804

The switch effectively takes care of the billing by debiting each card and then we bill our retailers who sell our cards on our behalf.

PN805

He indicated: the data is collected over a period of 24 hours and gathered by switch and transmitted into the data base - that is 2376 to 80 - and regarding where there are complaints in relation to the card being over-debited, he indicated at 2370 that there is scope to effectively credit a customer in conjunction with the supervisor on board and this is necessary because there is that 24 hour time lag in information through the switch and he said - and this is set out at 2371 and 2495. And at 2347 to 2349 he indicated that the operators - these operators are for customer service, telephone customer service - utilise a phone connected to computerised network using dialogic cards, a platform to enable compatibility. In other words, the apparatus.

PN806

As we have indicated, the - we say that Card Call falls under 3(a) and (b), if it is not 3(a) then definitely it is incidental in the sense of Pacific Access describe what was incidental. We submit that the people who are the - that that rule, the telecommunications rule, covers the call centre telephone operators, the tele-sales marketers and the sales representatives and the telecommunications technicians in the sense that we submit that the work is - despite the title, does not fall within the exclusion but nevertheless we say that they fall under the PREIA rule.

PN807

If the Commission pleases, there is, I think I have gone through the skills of the telephone operators in the call centre. I would draw your attention to the reference to the various discretion and skill in the job and to correct the recharge facility that is set out at 2320 and 2321. The extensive training, 2 days in-house, 2 days close monitoring, and then 2-3 weeks before they are actually proficient, they are supervised closely until that point. 2395 to 2398.

PN808

In relation to the issue of governing those - it is claimed that the call centre people are covered by the Clerical Employees Award Queensland. We say that they are not so governed in the terms of section 111AAA. Their ability to complaints and rectify and re-credit that I have just referred to, further more in the evidence of Mr Stephens stated at 2454 to 56, in relation to the award claimed, why it was used, he stated that when he started with ..... Financial Controller he was made aware that State clerical awards were the awards used. Your attention is draw to the conditions and wages that are set out in 2457 and 2493, which for their patchwork operators, 25,500, that is at 2470.

PN809

The teller sales marketers are said to be covered by the - governed, or they say that they are covered by the award, we say they are not governed by the Queensland Clerical Employees Award. The duties are set out at 2322, they contact current retail customers but the current customers about stock levels or look at competitors. There is 3 to 4 days in-house training, supervision for them to become proficient and their salary range is 19,000 plus a $200 a month further commission, that is at 2474.

PN810

We have a real concern there as to in fact whether that rates exceeds the Federal award minimum wage. It is not clear. In which case you would have to say that it is not governed by anything. Sick leave is paid on the base rate, this is at 2488, sick leave ought to be paid on the rate plus the commission. In any event it is not apt to say that such people, given the duties they perform are covered by clerical award. They are really sales people.

PN811

In terms of sales representatives that we say that they are governed it is apparent that the award relied on is the Commercial Travellers State Award Queensland. The actual title of these people are channel development, that is at 2423 of transcript. Whilst there is four employees in Queensland there is also four sales representatives in New South Wales, two in Victoria, two in Perth, one in South Australia and one in Tasmania. The Queensland award, this is at 2394 is used by Card Call for all the States, as stated on 2425 they are all on quite generous packages so we use Queensland as a base and we say that we are well above Queensland and we should be relatively okay in the other States.

PN812

On top of that it has emerged at 2430 that ATEA only became familiar with the award 3 months ago and that was when approached by the AIG, September last year which is when these proceedings began. So we submit that - and this is at 2432 - we submit that that clearly is evidence that the award does not govern the wages and conditions in Queensland. It obviously was an award that was discovered in September for a particular purpose, certainly not to govern their wages and conditions and it is not as a matter of construction you could not say that the others in the other States are governed by that award.

PN813

Now, we have covered the telecommunications technicians. There is no award for them. It is stated that it is not clear whether those technicians, the statement - it is stated that they have engineering degrees but it is not there within the statement so it is not clear whether you could say that those technicians operate, sorry, fall within the professional engineers exemption because we don't know whether they exercise the qualifications or skills of a professional engineer. So to merely say that they are is not sufficient to exclude them at this stage.

PN814

So we submit that dispute finding, the Commission may be satisfied in terms of a section 101 dispute finding that the following categories are covered and not subject to section 111AAA, the various sales employees, and the technicians, as well as the billing department which is in effect, which is called the Telephone Operator Customer Service in Queensland, and the Tele Sales Marketing Employees employed in Queensland.

PN815

The next employer I wish to go to is the IXnet, and that is contained in a witness statement, P6, of Mr Voyas. The principal function is described by Mr Voyas at 2207 and 2222:

PN816

providing international value added telecommunications networks to banks and financial institutions through supplying a digital leased line from Telstra, Optus or international carriers.

PN817

At 2271 it is said:

PN818

In the niche market of providing 8K voice and data lines that carriers do no traditionally provide.

PN819

That is where they are within, they rent line and equipment from a number of carriers and use their own newbridge equipment to enhance the line and provide a better telecommunication service. In other words, an uninterrupted 24 hour access for banks and financial institutions. That is set out at 2271, 74 and 76.

PN820

They connect from the carriers network operation into the carriers point of presence.

PN821

That is at 2227. The network operation at Bond Street is owned by IXnet and it is said at 2232 that that is the focal point for their network and there is lots of equipment in there. The Newbridge, including the Newbridge equipment, 2236 and 39 it is pointed out that the equipment allows the bank of financial institution to use the line to talk to the other end for transmission of voice and data. It is an intelligence piece of machinery. The network which is critical, there are 28 technicians and they perform the technicians who perform - are said to perform technical work including network operations and support on the IT desk, that is at paragraph 83C, it is described at transcript 2209:

PN822

They sit at our Network Operations Centre and look at their computer screens to see if the service is running good. If a customer complains ...(reads)... is done by the technicians.

PN823

Now, there are technicians who install and go out but there are two technicians who that. All the technicians at this Bond Street Network Operations - this is at 2245 - are trained to operate the apparatus. It is said:

PN824

Their duties are to monitor lines for congestion or break down using computer based equipment and to rectify by re-routeing to other lines leased from other carriers.

PN825

That is at 2261, 2263, and 2265. At 2293, they say when there is maintenance failures, IXnet takes primary responsibility to re-routeing utilising software and stored at the network operations. In relation to the issue of technicians and professional engineers at 2249, it is said that some - most have diplomas in engineering, some have degrees, but most have at least 5 or 10 years work experience with Westpac or Telstra or Optus and the work experience with Telstra would have been performing similar work of installation and operation and maintenance of similar equipment and that is at 2251 to 2.

PN826

A list of qualifications was asked to be provided, at 2260 but that has not yet been forthcoming. So we submit that it will be fairly obvious from the discussion that PREIA rule applies in the same way that we have argued before in relation to both the billing - sorry - in relation to the network operations at Bond Street the 28 operators, it is clear that they operate apparatus used for the purpose of cable operations. It is also - we reject the work performed we have described. We would reject the AIG assertion that they are simply technicians. It is clear that they fault find in relation to the software and that they operate, in the words used by the respondent.

PN827

Again, they fall under the rule 3EA, the AIG actually concedes that is arguable, I mean, they say that it is arguable, they don't concede the point I should say to be more correct. We say that they definitely fall within there because it is clear they provide a value added nature of the service supplied by guided electro-magnetic energy, that is what they do. The network operations, the particular equipment they use, they have a superior line to provide to the banking and financial institutions.

PN828

Community of interest, there is reference to that again. I think I did mention 2250 to 60, that is the technicians and operators are being recruited and coming from Telstra and Optus so like many of the others they are part of the employers and the employees see themselves as part of the telecommunications industry in a sense of recruitment and movement around. We say that therefore they cover, and the CPSU can cover and govern the network operations people.

PN829

There is no award claim and also the sales - there is three involved in sales - I knew there was something hiding somewhere. In paragraph 10, the award free people, there is three involved in sales on P8. There is nothing that was led on that, simply a statement that they are involved in sales and that they are award free. So it is the network operations and the sales we say that there is coverage and a dispute can be found. The last ones are PATH, I think that is how you pronounce it, Claritti, and we submit that - - -

PN830

THE COMMISSIONER: PATH Claritti, have you dealt with World Exchange?

PN831

MS JONES: I have missed that out, I certainly have it here. I am sorry, I thought I had. Mr Simon, I'm sure I've dealt with Mr Simon.

PN832

THE COMMISSIONER: I am sorry.

PN833

MS JONES: They were very highly qualified people. He didn't see them as in the clerical employees. I am sure that was him.

PN834

THE COMMISSIONER: I must have missed a tick.

PN835

MS JONES: Just dealing with PATH briefly, it is said at paragraph 88 PATH is not within the telecommunications industry, it is an agent. We say that that is - and there is reference to the Stellar decision. We say that is not correct. PATH is not an agent. At paragraph 8 they say that they - in relation to sales representatives - that they pursue opportunities to sell PATH products, such as mobile phones, telephones, business machines, and pre-paid phone cards. It is hard to see in that sense how they can be an agent when they are selling their own products, that is the function of their sales executives. They purchase supplies of telecommunications service. That is clear and they resell it. They are a licensed carrier, that is at paragraph 5, and hence we submit that in providing the reseller of products they fall within 3EA.

PN836

There is not much more that can be said about that but their products are obviously products such as in paragraph 8, mobile phones, telephones, and pre-paid phone cards. The comments we have said about the evidence in relation to those that provide prepaid telephony based services apply here. It is value adding in the sense that the reason that the service providers are the convenience cost or something else and the only basis on which AIG exclude them is that they are an agent and we say that that is not so in the case of the evidence.

PN837

They also refer at 11 to their technical staff involved in telephony and data cabling, no doubt to provide the services, their own products. We submit that there is no award covering, we see no award claim so therefore the CPSU has coverage of the administrative and clerical, paragraph 7, sales representatives, paragraph 8, and 9, tele-marketing in 10. There is a sales engineer who holds a Bachelor in Engineering, query that but that is one - this is in paragraph 9. Paragraph 10, tele-marketing marketers and the technical officers - so we submit as with PATH the Commission - as with the others - the Commission can be satisfied that there are, may be employees, to use the words of - ..... who can be covered by the CPSU and not to proceed to make a dispute finding in relation to them.

PN838

Similarly there is, we submit that with Claritti, this is P17, we have the witness statement of Mr Peter Cook, and there is they say that they are a reseller. They purchase wholesale phone calls and the manufacture of retail phone call, voice data, and Internet services, are provided by purchasing phone calls wholesale and then sold retailed, and this is in their attachment CLOA1. As a reseller apparently Claritti is in the same position at PATH so it is not clear whether they are arguing that they are an agent or not but we submit - and not in the provision of telecommunications services. We submit that is clearly not the case on the basis of their own evidence contained in the statement and particularly in the annexure to the statement which outlines it, they for example, provide national fixed to mobile local calls at low cost. They provide frame relay and 80M data services and so forth, so various value added components to the supply of the telecommunication service.

PN839

So they are a reseller we agree with that, because you are a reseller does not mean you don't, you are not part of - you don't provide telecommunications services, just nonsense. They resell a telecommunication service, they purchase and resell and they value add to that so they fall into A and if not, then for the reasons I have outlined before they are incidental in the sense that they are existence and use is based on the telecommunication service in the sense that they would not have a product or a service without the telecommunication service, not that they use the telecommunication service, not that we are saying because they use it we say their existence is based on that.

PN840

If the Commission pleases, we submit that the CPSU has coverage of all employees in Victoria, because under paragraph 8 it is said that all employees in Victoria are employed under the Communication Service Industry sector and it is not apparent from here whether any of those - sorry, all the customer, the 29 employees referred to in paragraph 7 are said to be covered by the minimum wage order so therefore there is no award now so they are covered and they are governed.

PN841

There are sales employees in paragraph 9, and they are said to be covered, in Victoria they are covered by the Communications Minimum Wage order that does not apply. There is apparently no award in New South Wales and Queensland. There is reference to tele-marketing. Again, they refer to the Communications Minimum Wage order at paragraph 12, so they are covered and they are not governed. There is reference at paragraph 13 to clerical and administrative staff being covered by the Communications Service Industry sector.

PN842

Now, whilst the minimum wage order issue is no longer a live one it is in interesting that they have actually - because there was a question from the ASU, why wouldn't you use the business services minimum wage order. So clearly, they see themselves within the - providing a telecommunications service because that order refers to various aspects of the telecommunication industry. So they see themselves as within it. We say that they are and that moreover that they fall within rule 3EA.

PN843

I want to go on and do a little bit more on section 111AAA because that is only relevant to the AIG respondents but I will deal with AOL first before I go on to that because that really completes our submissions in this are, Mr Commissioner. Firstly, AOL is an internet service provider as we pointed out to the Commission before. The evidence in relation to internet service providers and how their business is processed by which the service is provided, in Mr Pusniac's evidence that I took you to yesterday, that aspect of his evidence has not been challenged and as we indicated, the reason for that is a good reason is that it is actually supported by the material within the Communications Law Centre and others of the industry and its structure and the entities providing telecommunications service.

PN844

We refer the Commission to - we do rely on our submission on AOL which is at paragraph 153 and there we set out at 158, paragraph - Mr Pusniac's evidence on how that works - but how the AOL might work. It was in answer to a question from you, I think. We submit that AOL falls within Telecommunications rule 3(e) or (a) and the reason is - we won't go through our submission - just to say briefly, it purchases transmissions signals from three to four carriers to enable its clients or members as they call them, to access content on the AOL file server and for the content to be transmitted back to the client.

PN845

At paragraph 48 of the submission, I think it is H3, I'm sorry - paragraph 48, the submission, H3 refers to the amount of money that is paid to provide that access for anyone who uses AOL. We submit that the characterisation at paragraph HE is wrong. Paragraph HE is on page 4 where it said:

PN846

The consumers through several companies who supply connections and accesses the AOL -

PN847

well, that is really not correct. It is not the carrier supplying the connection but AOL purchasing the capacity of the carriers. It is the carrier's carriage service that is being used, but in fact, AOL supplies that capacity through purchasing - there is a description in relation to the point of presence at sub-paragraph (p) on page 5 of H3:

PN848

AOL pays for point of present service supplied by an independent body corporate, serve as a mechanism and consolidates the calls by telephone line into one station prior to them being sent to the United States and its telecommunications system.

PN849

The revenue of AOL - this is at paragraph N above:

PN850

The revenue of AOL is based on the membership fees for access to the site that it sells and the advertising space it sells to companies and organisations having their products displayed.

PN851

So it re-sells its product it purchases, it is a re-seller in the sense of it re-sells a capacity it has purchased to provide access and purchases that capacity from telecommunications carriers to transmit signals and adds value by the content and the package. At paragraph 106 - I think it is R, there is some reference and there was reference before about how the customer pays for the - pays a separate telecommunication charge for the entire period of access to AOL. We are not really clear what that is intended to convey but the point is that there is an access charge for the use of AOL so it is not that the charge - I think that the intention is that because they are paying to a carrier such as Telstra, the amount, then somehow AOL has nothing to do with it but what AOL does is purchase capacities, re-sells, adds value through its content and packaging and we say it does transmit, contrary to what is asserted at sub-paragraph R of paragraph 8. It says:

PN852

That AOL site does not transmit in any way to the consumer.

PN853

Well, it is not really a question of which way it is transmitting, the point is that it has purchased a capacity in relation to transmission signals. It re-sells that to its members or its clients and as a re-seller it also it adds some value through its content page and what can be accessed from the WEB site. We also submit that it also can be seen as ancillary by virtue of the fact that its existence is based on purchasing and supplying the carrying of telecommunication service, or carriage to transmit data text or voice, and that is made clear in paragraph N on page 5:

PN854

The revenue of AOL is based on the membership fees for access to the site that it sells and the advertising space it sells to companies.

PN855

If it were not for the capacity to purchase the communication carriage service, if it were not for the fact of the existence of a supplier of that telecommunication service, then AOL would simply have no existence - it couldn't provide its service. If the Commission pleases, that concludes the part in which we deal with the various functions and the manner in which they might be covered by the PREI rule, so called, and the Telecommunications rule and also the issue of the evidence in relation to the issue it governs.

PN856

Before we conclude our submissions, I would like to go to the issue of section 111AAA which begins at page 100 of the CPSU submission, J8.

PN857

THE COMMISSIONER: Paragraph 100?

PN858

MS JONES: I'm sorry, I keep saying pages. I need one of those auto corrects. The relevant part of that begins in paragraph 101 and just very quickly, we set out the provisions and various sub-sections of those provisions and 104 we state the operation of section 111AAA was considered by appeal for Australian Workers Union, Queensland Branch and Australian Maritime Officers Union. The issue was whether an application under section 111AAA could be made before a dispute has been found and the Bench found that a section 111A may operate once a dispute is found.

PN859

The critical thing, and there is no disagreeing on that, the critical part of the decision begins in paragraph 105 because the Full Bench made some comments and expressed views about the section's operations and we have relied on that since the beginning, when AIG raised this application or this section in relation to some of the respondents. Firstly, the text is set out in full in paragraph 105. It operates with respect to an industrial dispute in relation to particular employees. We know that the term is not confined so an industrial dispute was in the meaning of section 4. Both parties are agreed on that. 3 says:

PN860

The particular employees are those whose wages and conditions of employment are subject of the industrial dispute.

PN861

I think it is agreed that it requires the Commission to be satisfied as to eligibility in a case like this first before we go any further. The next point at 4 is that the Commission may be satisfied that a State award or State employment agreement governs the wages and conditions and then at 5, that an application will put the Commission on notice that a State award/agreement may govern the wages and conditions. 6, in our submission is critical to the process or the steps by which this section applied. It states:

PN862

Accordingly, if an application is made under section 111AAA before the Commission has made a dispute finding, in accordance with section 1011 ...(reads)... section 111A has no operation.

PN863

Then it goes on to say in 8:

PN864

If the Commission is satisfies that it governs, then it must cease dealing with the dispute. It must then go on to determine whether ceasing would not be in the public interest.

PN865

So we say that the first step is that there is a satisfaction that there is in fact, an industrial dispute, there is no disagreement between the parties on that and the second thing is that the Commission must be satisfied in terms of that Full Bench that the wages and conditions are governed by State employment agreement and award because then, if that is the case, it has no operation and the Commission continue to deal with the dispute by, in this case, ..... section.

PN866

THE COMMISSIONER: Making a finding.

PN867

MS JONES: So one point to emerge out of that is well, firstly as I've said, there has got to be that step of satisfaction that an award or agreement so governs, but it also means that the Commission may, in examining - may, in relation to one respondent logged, make a dispute finding in relation to a group of employees who are dissatisfied are not ungoverned by State employment and agreement and cease dealing in relation to another group of employees, merely because one is found to be covered doesn't stop in relation and that is the authority of that is in TW v Marlowes Warehouse and Coldstores Trust. It is set out in paragraph 114 of our submission and citation and so forth.

PN868

We make the point at 107 about the respondents who don't claim - don't rely on section 111AAA and we then deal with the requirement that there be an industrial dispute. That is paragraph 108 to 110 - we don't need to go to that, that is agreed and it is then at 111 that we deal with this point about the satisfaction as to wages and conditions being governed. We state that the onus is on the applicant, the person who makes the application, to satisfy the Commission that it does govern, and we note here that really, there has been no effort by the AIG to even address that point, despite the fact that we've written fairly lengthy submissions about it. I will come to that in a moment.

PN869

114 deals with the point that I've just made in relation to finding a dispute in relation to certain employees and not ceasing to deal with it until you determine the application in relation to others. The next sections deal with what falls within a State award, State employment agreement. In that section we - at paragraph 118, we set out the various instruments - paragraph 118 deals with - sets out the respondents in respect of whom minimum wage orders were claimed. They are no longer claimed and at page 132, we deal with the issue of Federal awards or agreements which we say do not fall within the scope of section 111AAA and I dealt with that earlier in relation to Hutchison because that is where it is claimed and they are in paragraphs 132 to 141.

PN870

There is reference to - at 142, the restructuring and efficiency agreement but I've dealt with that in relation to the evidence and then we come to the issue that governs at paragraph 143. Now, if the Commission pleases, we submit that I've gone to the issue of govern and that is the decision of Deputy President Drake in that it infers active regulation of wages and conditions of employment. The first point that we wish to make is that, as I stated - our submission - the AIG as an applicant and whilst onus is a difficult issue, they do bear some responsibility in demonstrating what is clearly under the authority of a Full Bench, a threshold issue which is the satisfacting by the Commission that they are so governed.

PN871

We say there is a grey superficial treatment by the AIG at paragraph 95, page 51. They use the words which is - they used the word "governed" in paragraph 51. In paragraph 94 they used the word "fall within" common rule awards set out above, so whether there is some - they are making some distinction - everyone falls within a common rule award if you are not under a Federal award and your classification is somehow picked up by them. But that is not "governed" in an active sense of regulation and at paragraph 99 they say:

PN872

The CPSU makes submissions about the word "governs". It is clear that the State awards and agreements in the above in the absence, the AWA's Federal awards or Federal agreements do govern the wages and conditions of employees.

PN873

There is no reference to any evidence. It is simply a very bold statement, unsubstantiated by any reference to the evidence provided by the respondents. We say that based on the evidence we have taken the Commission to, that that certainly cannot be - that statement does not hold. It reflects, as we have said, a very superficial treatment by the AIG in relation to what "govern" is and who is governed. They presume that their statement is that:

PN874

Where State awards and agreements are binding in law and apply to the employees, there is such regulations as equates to governing.

PN875

And it is not clear on basis of what authority they make that assertion. Now, Commissioner, you have today, raised the issue - or this morning - as to the distinction between being bound by an award and governed and have made us aware of an appeal against a decision of yours. And so what we want to address is the use of the word "governs" within - specifically section 170CD(1) of the Act, which is to be found in the Termination Provisions - Early Unfair Termination Provisions of the Act, part 6A, division 3.

PN876

Now, the context for section 170CD(1), is of course, section 170CD which provides - sets out the scope and an employee may make application if the employee concerned was, and C of hundred section CB1 provides a Federal award employee who is employed by a constitutional corporation. The definitions are set out:

PN877

Federal award employee means an employee any of whose terms and conditions of employment are governed by an award, a certified agreement or an AWA.

PN878

The first thing - point to be made in relation to this is that, yes, we understand that there are decisions dealing with the issue of "govern" under division 3 of part 6A, but it is very important to, in examining that, to look at the difference in the two sections.

PN879

THE COMMISSIONER: There is also curious interaction between 170CD(1) and 170CD(3) where "governed" is not used but "regulated" is used.

PN880

MS JONES: I'm sorry - just - - -

PN881

THE COMMISSIONER: I might say that in the matter that is on appeal from me, these issues weren't raised, so - - -

PN882

MS JONES: No, but I - - -

PN883

THE COMMISSIONER: Whether or not they will be raised on the appeal and follow true form, who knows, but it just struck me as relevant at the time.

PN884

MS JONES: There is that distinction and the thing about - well, what is clear about Division 3 part 6A, is that it is remedial provision. It is beneficial legislation in fact, and you really - that has to be kept in mind whereas section 111AAA is a restriction on the exercise in power. It is quite different functions. One is intended as a remedial piece and so, as with most remedial provisions, ought to be construed beneficially in terms of any decisions that might have come out of that section, and the other thing is - - -

PN885

THE COMMISSIONER: In 111AAA, I think, properly characterised, is a direction to the Commission not to certify the existence of a constitutional fact.

PN886

MS JONES: Yes, go and record that constitutional fact, that is correct. It is really - the Commission's jurisdiction exists when there is an industrial dispute, if we start from section 4. Section 111AAA says - prohibits a Commission from exercising its jurisdiction arising from the constitutional fact of satisfaction of you, know, is then beyond the limits of any one State about an industrial matter, and so forth. It prevents the Commission from exercising that jurisdiction in certain specified circumstances and they are that a State award or agreement governs the wages and conditions of particular employees. So it has a very particular job to do whereas division 3 part 6A is intended to - well, it is - - -

PN887

THE COMMISSIONER: I can read one in a beneficial sense and the other narrowly.

PN888

MS JONES: Absolutely.

PN889

THE COMMISSIONER: Yes.

PN890

MS JONES: Absolutely, and look, I don't want to really get into constitutional law because I don't want to say, you know - grant of power and so forth, but really it is analogous to that, it is giving to the Commission, the constitutional foundation to exercise a particular power - this is division 3 part 6A. The other point when you are looking at the wording, I might just - is that it is phrased differently also, that section in relation to use of the word "governed". If you have a look - and again, a decision on that in division 3 part 6A must be looked in that light - if you have a look at the definition of Federal award employee, it says:

PN891

It means an employee, any of whose terms and conditions.

PN892

Section 111AAA says:

PN893

Employees - the wages and conditions.

PN894

Not any of the - it is a difference, and it fits with the notion that it is a provision that the division 3 part 8 be construed beneficially. As you have said, it is compounded or fortified, this interpretation by section 170CD(3) whereas an employee is taken to be employed under award conditions if both wages and conditions are regulated.

PN895

THE COMMISSIONER: Well, the language I used in my decision was "regulate" and just have to wait and see whether I'm for the high jump or not.

PN896

MS JONES: Also one might just go back to where the legislative intent I think where in our submission we deal with the issue of Federal Award coverage and so forth, whether the Federal Award constitutes the State Award and we extracted from a part of Deputy President Drake's decision in Theatre Managers where she cites - relies on an extract from Parliamentary proceedings Hansard, to identify the intent and we say the intention of the section 111AAA is as we say to restrict the jurisdiction the Commission has which is the foundation of its powers in part 6 where another jurisdiction is adequately providing for wages and conditions.

PN897

So the - and to enable some sort of freedom of choice over that matter as between the employees which is obviously why the views of employees are paramount consideration in the public interest issue. Now, if I might just on that basis go back to the New South Wales Clerical Award which I dealt with at some point and said I would come back later and that is the exemption clause, page 40, exemption clause which is clause 40. As I pointed out, when you look at the evidence where employees claim that they are covered by the clerical award in New South Wales, they refer mostly to grade 3 of the skill structure, the current level salary at C10, that grade is 492 which is equivalent to the C10 trades.

PN898

The exemption clause at clause 40 excludes the coverage for a range of safety net conditions for all employees earning 50 per cent - 15 per cent over the award rate. Now, 15 per cent on our calculations of the award rate is 565.80 per week or 29,421 per annum. The employers that we can ascertain from the evidence who pay their employees more than that amount in New South Wales are AAPT and that is at transcript 2134, RSL Com transcript 3392 and WorldxChange transcript 3251. What that means is when you have a look at the exemption clause, the employee's conditions aren't governed by an award or the award in relation to the following areas, the classification structure, hours of work, shift work, casual, part-time employees, meal breaks, payment of wages, overtime, time off in lieu, higher duties, finishing at night, travel expenses, uniforms and first aid allowances.

PN899

Also there's training and termination of engagement provisions which means that in terms for example shift work, they won't necessarily get penalty payments, they certainly won't necessarily get overtime payments, penalty rates for holidays, public holiday or Sunday work, entitlements to meal break and so forth. They don't have an entitlement to transport home when they are finishing at night or any travel expense entitlements nor reimbursement for any uniform that they may be required to wear.

PN900

In short, by exclusion of these various range of conditions which are set out in clause 40, in affect these employees who are so exempted are virtually in the same position as workers under a minimum wage orders in that their conditions are not governed by an award or substantial part of their conditions are not governed by an award. In addition to the mere fact that this exemption - when talking about this exemption, we are not saying that merely because there is an over award payment that it does not govern when you look at the rates, it is really how the rates which are above the award, it is the setting of the rates.

PN901

Not one of the respondents has every said that they would have a look at the award and set something in relation to that. They are very clear that it is a market rates industry at this stage, it is very competitive and it is market rates. We say that in that sense the - in those companies, the award does not govern their employment, their wages, in addition. The last area we wish to deal with is the public interest. The section provides that where the Commission is satisfied that the wages and conditions of employment of the particular employees are governed by State award and State employment agreement, then it must determine whether an unsatisfied the ceasing would not be in the public interest.

PN902

Now, our submission has always been that we can't address this public interest issue in a detailed sense until we know who the particular employees is. There's a certain process to go through. Yes, we are dealing with evidence on the application which is the evidence that we have brought to your attention on whether they govern but until you are satisfied firstly that there's an industrial dispute within the section 4, secondly that you are - in relation to those, you are satisfied that particular employees, which must mean groups of employees, identifiable employees are governed, have the wages and conditions governed by a State employment agreement or award, then we can have no submissions to make in a detailed sense and the substantive sense as to public interest because we just don't know who the employees are and which particular awards or agreements apply.

PN903

Nevertheless, we have in our written submission directed your attention to the issue of public interest as - first of all, it is clear that public interest is a key consideration the other views of the employees and we have submitted that in doing this, there are certain principles that ought to be followed in ascertaining the views of the employees and they are - that every employee who is so affected is given the opportunity to express the view set out at paragraph 151. There should be confidentiality, these people are often unregulated - I don't want to get into that debate but - they are at large with their employer and there is no one else there.

PN904

So the expression of their view so that the Commission can be satisfied it is a genuine view must be confidential and in a way that the Commission determines is the best way, the view expressed should be an informed one. They need to express their view on something. It has to be an informed view, they have their current conditions. They need some basis on which to - and they are said to be governed by a State award which will differ from their current conditions. There has to be some basis on which they can express an informed view and there should be no cost involved, financial or otherwise to the employee in expressing that view.

PN905

THE COMMISSIONER: I haven't turned to Commissioner Whelan's decision but - - -

PN906

MS JONES: Yes.

PN907

THE COMMISSIONER: Was that in a context of a secret ballot?

PN908

MS JONES: No, no, it was a letter to - are you referring to the Kendell decision?

PN909

THE COMMISSIONER: Yes.

PN910

MS JONES: Yes. No, it was a letter written to each of the employees with an explanation attached.

PN911

MR HARVEY: I could amplify that, Commissioner, just briefly. Originally the union suggested - I appeared in that matter - the union originally suggested that the secret ballot be conducted. However, under some forensic examination of the powers of the Commission, there was an argument that a secret ballot was only within a certain context and this wasn't one of them.

PN912

THE COMMISSIONER: No, it is for - not for mortal beings like Commissioners, 135(1) and (2) is presidential members.

PN913

MR HARVEY: Yes. Well, that was right and also I think it is in the context of, you know, strike - industrial action and other things.

PN914

THE COMMISSIONER: Yes.

PN915

MR HARVEY: So the employer in that case sort of ran an argument that the Commissioner had no power to have a secret ballot, but in any case we proposed that notwithstanding that, then the Commissioner actually had a duty to inform itself of the views of the employer and the employees and notwithstanding that, had to form a view one way or the other. So we ended up proposing that the Commissioner write to the employees and seek a view and she did that just exercising, you know, her functions as she saw them under the Act to inform herself.

PN916

THE COMMISSIONER: Under 1MT, yes. Thank you.

PN917

MS JONES: One thing we need to take the Commission to because we do object most strenuously is paragraph 105 of the - paragraph 101 of the AIG submissions, the second paragraph within that paragraph. It says:

PN918

The Commission has the views of employers and I'm trying not to laugh. The employers have called evidence from senior employees as to this.

PN919

Now, I'm not sure whether that means that they have covered off the views of the employees, I don't think so. It is just a very curious way of expressing management. So nevertheless, we needed to make that point. We wouldn't want to let it go.

PN920

THE COMMISSIONER: It is a factual statement.

PN921

MS JONES: There is one comment made about the decision of Whelan and the process by which the views were of employees were ascertained and that is the AIG says that - this is paragraph - subparagraph G of paragraph 105, that is a single small employer, we say that is not really terribly relevant. We presume that there will be - we have here a limited numbers of respondents. It is not, you know, let us look at the number of respondents normally logged and served and so forth. There will not be every employee, there's a decision to be made at the time but we don't anticipate and we don't wish to be seen to prejudge anything but it is most likely there will be limited categories amongst various respondents. It is not the totality of the AIG respondents in any event.

PN922

So we don't see that as inappropriate in the sense of impractical and there's no other - the fact that they are a single employer seems to us not terribly relevant because we are not dealing with a multitude of thousands here.

PN923

THE COMMISSIONER: Whatever the statute tells me to do, I should do it.

PN924

MS JONES: The issue is how you interpret that. We have - and I just want to go to the issue of - we do make another point. It has been accepted that where employees are members of the union, then the views expressed by the union on their behalf has been treated as an acceptable manner of the Commission informing itself under - pursuant to section - should be 111AAA(1) and (2). Now, we've indicated that we cannot develop a submission in substance on public interest until we actually know the awards and the employees and we will obviously do that but we say the relevant factors at least in relation to a substantive argument would in our view turn on factors such as the fact that every employee in each company will not be covered by section 111AAA, they may be very small groups, it depends.

PN925

We haven't got to that point yet and hence you will have employers with a range of, sort of, patchwork of the range of State awards and a Federal Award. There are varying rates across States for - there's evidence of varying rates across States for similar functions performed, customer service representatives and sales. There's use of, for example, one State award for other State awards. It seems that a legal instrument is chosen and then they are just used as a basis and move on from there and in addition, a community of interest.

PN926

It really is quite clear in our submission evidence of community of interest amongst employers and employees. Both see themselves as part of the telecommunications industry. So those are the sort of factors that emerge certainly from the evidence and we believe are relevant to the public interest. The views of employees are paramount but there will be other aspects that we would address in a substantive matter - substantial way I should say. I apologise. Finally in relation to - that concludes our submissions. In relation to the dispute finding which much comment was made about, what we say is this. We put up a draft dispute finding.

PN927

The Commission obviously will make its own dispute finding. On reflection a dispute finding in the nature in AMDAHL which was a very general one, I took the Commission to that at the beginning of the proceedings would be maybe the most appropriate way in that it avoids difficult issues of absolutely defining, not offending and not being seen to determine the section 111AAA beforehand and we say that is quite permissible because it does not mean that the Commission has found a dispute in relation to the categories of employees code by section 111AAA.

PN928

It simply means that there's been a dispute finding with that respondent and the nature of the employees who are covered by the dispute finding will obviously be evident in any decision you made and those who are subject to section 111AAA would obviously be manifest from that too, if the Commission pleases.

PN929

MR BENFELL: Commissioner, Mr Parry and Harvey were kind enough to agree to my request to make a short submission so I can go and return to Sydney in case this matter is not finalised today which seems likely. I would like to raise one matter with the Commission and it is a matter that has been raised in the last 2 days and has not been raised in the past. So we are entitled to make the submission. There has been a very important but subtle change in that the claim by the CPSU as to how they can enrol the employees under consideration.

PN930

It was put that under the PREI rule, they covered persons performing technical and administrative functions. Now, that claim has been abandoned and it is put that they cover people operating apparatus and they also deny that employees are performing technical and administrative functions. For example, in exhibit J1 which is the statement of Mr Stephen Jones, at paragraph 20, it is put in relation to the PREI rules:

PN931

As far as it is relevant to these proceedings, this calling can relevantly be described as persons engaged to perform technical and administrative functions.

PN932

That was reinforced in paragraph 28 of the same statement where a table appears and there's reference to communication technicians and his evidence under cross-examination reinforced that. Again at exhibit J8 which are the written submissions by the CPSU on 30 March, the submissions that we were asked to respond to at paragraph 38, in relation to the PREI rule coverage says:

PN933

Relates to persons engaged to perform technical and administrative functions associated with the utilisation of apparatus used for wireless, cable and/or being technologies.

PN934

Now, the submissions made in the last 2 days abandons that idea almost and instead it is said that technical employees or technicians are not really technical employees or technicians. They are actually operators now. For example, in relation to card call, in the submissions made this afternoon, it was put that the persons described by the company as telecommunication technicians, they are actually not that, they are operators and a similar claim was made in relation to the technicians employed by IXnet in that they were trained to operate, hence they are operators only and not technicians.

PN935

Because our submissions were made on the basis of the previous case put by the CPSU, we feel the only way to deal with the matter is to allow for us to make a further written submission in relation to this matter after having the opportunity to review the evidence. We would need to make submissions as to the meaning of the word "operate" or "operator" and a meaning of the "technician" or "technical officer" and also in relation to what is the principal function of the employees because one simply can't change the description of the employees to suit the rules that one is trying to squeeze employees into.

PN936

THE COMMISSIONER: But I thought the point was, unless I misunderstood it, that it is not really a question of a rose by any other name, it really does go to the function that a person is being asked to perform.

PN937

MR BENFELL: That is correct.

PN938

THE COMMISSIONER: That is what I thought was a point, it didn't matter what you called them. It was the skills and the function that they were being asked to perform. Now, a number of people have local designations and I thought the point of the CPSU argument was to look beyond the designation to look towards the work that was actually being performed.

PN939

MR BENFELL: Yes, but in doing so, they changed their claim from saying the employees were technical to saying they were operators and we haven't had an opportunity to look at the basis on which they say they are operators.

PN940

THE COMMISSIONER: Yes.

PN941

MR BENFELL: I think there was somebody else from Sydney

PN942

THE COMMISSIONER: Yes.

PN943

MR TAMPLIN: Sir, we don't have anything to raise = that has been raised by the applicant. Everything they say we believe we've covered in our submissions and in particular the statement and witness evidence of Mr David Leek and the attachments to his statement.

PN944

MR PARRY: If the Commission pleases, there are a number of matters. I'm hopeful that I will conclude them within the time. I will deal with them in the order that my notes show as they have been approached by Ms Jones. Firstly, to go back to the dispute finding proposition, we spent much of yesterday dealing with the propositions in the R v Alley, can I say that this is not a R v Alley case. R v Alley case is where somebody does not call evidence or there's very limited evidence and then the prima facie presumptions apply. So this is a case that has been, as far as my clients are concerned, a large amount of evidence.

PN945

I think the AMDAHL case looked at that proposition about if you call evidence, I think the presumptions don't apply, then the question of the evidence applies. It is contended against us that in effect you just need to find one employee. Now, we approached our written submissions on the basis that paragraph 83 was what was relied on by the CPSU, paragraph 83 was where it said: there's clerical and admin, I think. They sort of said: well, we are happy just concentrating on clerical and admin IT employees, technicians employed in network operations and employees engaged in billing services.

PN946

THE COMMISSIONER: They added sales.

PN947

MR PARRY: Well, they added sales today. They have also kept every now and then throwing in other sort of designations, sort of management positions and other. So sort of drooped it a bit from their written submissions. I suppose this is in summary, this is what we say, in very broad summary. When you talk about clerical and admin employees, firstly we say they are not in the PREI rule. If a telecommunications rule applies, we say some of our employers are not in the telecommunications industry. If they are in the telecommunications industry, then we say section 111AAA applies.

PN948

With regard to the information technology employees, we say they are not under the PREI rule. If a Telecom rule applies, again, some employers aren't in the telecommunications industry. If they are, then, the telecommunications rule applies. These employees are either professional engineers or scientists, or they are technicians within the terms that are in rule F(1), or (5). The Commission will recall that F(1) refers to - I'm not going to read it - - -

PN949

THE COMMISSIONER: 2F(1), is it?

PN950

MR PARRY: I'm sorry, it's 2F(1).

PN951

THE COMMISSIONER: Yes.

PN952

MR PARRY: Or 2F(5).

PN953

THE COMMISSIONER: Yes.

PN954

MR PARRY: Or A2(ii)(f). I am getting better with these rules. With regard to technicians we say they are excluded from the telecommunications rule, expressly as I have just indicated, and they are also excluded under the TSG provision which appears in F. As to the PREIA, obviously, that is the part that is relied on for the checks. If they are outside OTC - and the Commission will recall the undertakings and so forth - then we say they have to be working on apparatus and I think much was made of Comex, but if one reads the Comex case what was focussed on was the ROV itself, that was the apparatus. They were working on that as the apparatus so it needs identification of apparatus. A number of companies have no technicians actually working on such apparatus, and we say that a computer is not such apparatus - and that goes well beyond anything that PREIA history demonstrates.

PN955

The next group is billing. We say clerical - section 111AAA applies - and that is assuming that it is within the telecommunications industry. Sales, again, we say section 111AAA applies - and I will deal with that in a little more detail - not much later but very soon. Now, Commissioner, there has been much submission yesterday about the PREI rule and exclusions within it. Now, one of the cases that was relied on by the CPSU in their written submissions was R v Marks - I am not going to take the Commission to it - but it does say in the lead Judgment of Mason J at paragraph 38, what the Judge there does is go back to the transcript of what was said. He looks at the transcript of what the parties said and uses that to interpret what is in the rule. We say that is an appropriate approach and relevant here - and that is in paragraphs 38 and 39. Also in that decision Murphy J also relied on the history of the two organisations. The history of the exclusion rule and relied on that to interpret the particular phrase.

PN956

Now, that is particularly relevant when it comes to the proviso in the PREI rules. The Commission will see that that proviso regarding maintenance and mechanical work, which Ms Jones said should be read down to almost nothing, that obviously went in to cover a concern by the AEU as it was, and the ETU, or whatever predecessor form it had. If you look at that proviso, it goes to the employees engaged in certain callings, that is, maintenance and servicing of radio - that is out. Now, the word "radio" was looked at it Comex and I think paragraph 631K said: you give that an up-to-date reading, so you shouldn't read down the word "radio".

PN957

We submit that if one is looking at an eligibility rule one gives the same meaning in one part that it has in another part and I think that is what Murphy J also said in the R v Marks - I think that is paragraph 13 of his Judgment in that case. Ms Jones looked at the - I think what she described as: the proviso to the proviso. That is, people that are engaged on maintenance of servicing and radio are out, and then it starts talking about aviation, transport, depots and radio stations. Now, they are a curious bunch of words because at one stage - some of them talk about functions - transport, aviation - other parts talk about places - radio stations and so forth. So one asks: what are they? Are they a mixture? We say that if one looks at the history and the transcript the exclusion is in respect of people working in places, that is, in telegraphic stations, or offices.

PN958

We say that for two reasons, firstly, what is in the transcript. Secondly, the concept of sui generis - that is, one looks at words and the words around them to give them a particular meaning. We say that the word "depots" applies throughout and the transcript reference is from 18 April 1945 at page 19.5. It seemed in that argument about telegraphic stations, we almost approached the position where it was said that telegraphic stations were sort of telecommunications companies. We were almost getting to the stage, we say, that we look at the quote in paragraph 14 of our submissions from the R v Isaacs. We look at the word "telegraphic stations". Telegrams still exist as I understand. There is no reason to start reading the word "telegraphic" too broadly.

PN959

If I might go there too, Commissioner, you at one stage interrupted my learned friend and said: it does not matter if - and I'm not saying this is what you said, I am sure it was raised in argument and just as an exploring proposition - that it does not matter if the - it is the underpinning concept that is the focus, one follows the change and you raised abacus and then voice activated computers. Well, I think with respect that is a bit too broad an approach and, indeed, we say that is not consistent with the judicial authorities on the way one approaches rules. One gives the words a broad reading, but one does not put in new words. For example, the words might say: people that work on abacus or abaci. Now, if it says that we would say you don't say: what does an abacus become? In those circumstances, you look at the word, give it its plain meaning. Expansively, an abacus might be - have bells and whistles on it, but it still has to be an abacus.

PN960

If the words say: a voice activated, or hand activated communication device, one could give it a broader meaning, but I think to start bringing in concepts of looking at the underlying concept would detract the Commission from its proper role of interpreting the actual words that appear in the rule and in this case we say there are words that appear there, they do have a meaning that can be attributed to them broadly and expansively and that does not involve introducing concepts such as the concept. Now, we then turn to the telecommunications rules, and what has been put by the CPSU is: we simply ignore totally A2(ii). Now, the Commission will recall there are two sets of exemptions. One set that does not apply to the PREI. The other set that does apply to the telecommunications rule.

PN961

Now, we submit that the Commission cannot and should not simply ignore A2(ii). Now, really, the only reason the submission is advanced by the CPSU that the exemptions in 2(ii) are nonsense, is because they attempt to apply the rule in E, with regard to the PREI very broadly to telecommunications in a very broad sense. So that is the only reason on their interpretation that they say it should be nonsense. We submit that what is in A2(ii) can be given effect and can be given a meaning if you apply E to the plain words therein, what we say are the PREIAs traditional coverage. That is - and I think it has been said on a few occasions broadly - people in radio broadcasting, people in maritime, specialist technical employees in broadcasting and radio - so if one gives it that meaning there is still much work for A2(ii) to do.

PN962

We say in particular that the words telecommunications technicians, telecommunications technical officers, or telecommunications electrical workers have much work to do still in this rule properly constructed. We submit that ignoring words is not part of any judicial approach to the construction of eligibility rules where the words are intelligible and where they can be read consistently with other words in the rules, and if they can be read with other parts they should be.

PN963

MR TAMPLIN: Commissioner, could I seek leave to withdraw?

PN964

THE COMMISSIONER: Yes, yes.

PN965

MR TAMPLIN: I am sorry to interrupt you, Mr Parry.

PN966

MR PARRY: Now, the CPSU keep repeating that the second lot of exemptions don't affect the PREIA rule, we accept that. They still do operate with regard to the telecommunications rule, so they still operate and are relevant exemptions in any event. As to technicians the word "technicians" appears in A2(ii), and the authorities - there are limited authorities that I have been able to find with regard to it. I have a Macquarie Dictionary definition of "technician", if I could hand that up.

EXHIBIT #P22 MACQUARIE DICTIONARY DEFINITION OF 'TECHNICIAN'

PN967

MR PARRY: That simply says:

PN968

One versed in the technicalities of a subject.

PN969

There is more. There is another decision of Wilcox J of the Federal Court and this goes - and I will hand out a copy of it. It is VIP Air Freight v Australian Trade Commission reported in [1990] FCA 202; (1990) 96 ALR 667. The reason that I hand that up is this, it is a case concerning a Commonwealth Grants Act, so it is not - and there is a reference to the meaning of "technical services", and this company was in the business of international air freight forwarding. There was a debate about whether it was qualified for the grant and on page 670 in the second major paragraph, the final line:

PN970

The sole issue is whether the services provided by the applicant can properly be described as technical services. That term is not defined by the Act or the regulations.

PN971

Now, then what various counsel have done is set out the dictionary definitions and they rely on them and go to what technical - what these things mean - and I am not going to go through the next two pages - but ultimately the approach his Honour took was on page 671, at point 35, and what he relied on was the dictionary definitions and he said at point 38:

PN972

They indicate that the word 'technical' is appropriately applied to a trade, or occupation, which depends upon a body of knowledge without further limitation.

PN973

And there is no suggestion in either dictionary that the narrow denotation of the word suggested by counsel. So we handed up the dictionary definition. We say that is an appropriate starting point. Can I say that the exemption in A2(ii) is not simply technicians, but it is a telecommunications technicians. So reading the dictionary definition we would say:

PN974

One versed in the technicalities of telecommunications.

PN975

And we say that is a fair and reasonable starting point for the interpretation of that phrase. Again, I am dealing - I think the concept of "governs" then comes up in I think a bit out of sequence but in any event. The word "governs" is said to infer active regulation and from that there is reliance on a decision of Deputy President Drake in respect of a Theatre Managers. Theatre Managers case concerned a Federal award. There is in my submission no parallels here. In my submission, the word "governs" is consistent with "regulates", where you have a legislative scheme, setting up an award underneath that. It is legally binding. In my submission it regulates.

PN976

Now, the Commission referred to a decision of the Commission. I understand that to be Belchambers v Mornington Racing Club Incorporated, PR 90/2437. I obtained copies of that. I could provide that to the Commission. Now, I am sure the Commission is familiar with it. We say that insofar as it attributes the existence of over-award payments, but to an argument that somehow that means, the regulation does not occur is correct, so we submit that decision insofar as it deals with that is manifestly correct. We note the decision refers to another authority. Stevens v Moonee Valley Racing Club. I hand up a copy of that authority - not much longer, Commissioner.

PN977

THE COMMISSIONER: That is all right.

PN978

MR PARRY: Now, obviously the Commission is familiar with it. It deals with some sort of debates about the wordings and the word "regulation" and the word "governing". In my submission, there is very little difference between the words "govern" and the word "regulate", and indeed to attempt to draw some sort of distinction between those two would be a very arid field. Commissioner, the decision ultimately - I think it is at about paragraph 15 and 16 - deals with what is "regulation". They adopt a definition from The Shorter Oxford Dictionary - I don't repeat. We are happy and content to have that applied for the concept of governing. We say where there is law setting minima that that is so regulating.

PN979

Indeed, with regard to the question of exemptions, Commissioner, there was an argument made about exemptions and it concerns the - I think clause 40 of the New South Wales Clerical Award. Now, if one goes to clause 40, one will see that what it does take out are shifts, overtime, uniforms in respect of employees that reach a certain level. Those employees of course remain entitled to the various holidays, the various other benefits extensively set out in that clause, however, paragraph 16 deals with it in any event. Paragraph 16 of this decision said that:

PN980

Where the award says something about that it in effect regulates.

PN981

We say the same thing applies to the exemptions. Now, can I say that the Commissioner raised the concept of "bound". Why isn't "bound" there? Now, "bound" is a concept that is often implied to employers. Employers become bound. Under section 149 for example you have to be a member to be bound, so it would have been an inappropriate way of defining a category of employee to ask whether their employer was bound. Much better in my submission for a Parliamentary draftsman to look at directing attention to the employee and whether their conditions are either regulated or governed.

PN982

One does not talk about employees being bound. Can we say that insofar as a statutory approach to interpretation of 111(1)(g)(3), we are content with the same approach being taken to 111AAA as has been taken to 111(1)(g)(3) in any event dealing as they both do with the public interest. Now, a number of submissions have been made about the various employers and I will deal with them generally like this. With regard to MacQuaries, there is a debate about billing employees, and it is said billing employees come within the PREIA. Now, we can only assume that that argument at MacQuarie comes about because of some argument that these employees use a computer, or access a computer. Now, in my submission, a computer to provide that information does not come within the concept of the apparatus referred to in the PREIA rule. We say Comex is consistent with that.

PN983

As to information technology employees, there is reference to AMDAHL. Now, Commissioner, AMDAHL is a decision which does not only deal with the position of the employees themselves but looks at the industry in which those employees work and asks - and I think it was Commissioner Eames, at first instance, who asked what industry they were in and I think that was on page 15 of 16 on the Internet print where he talks about the companies, they do provide information technology solutions using an engineering or applied science process. He said, halfway down, page 15:

PN984

It has been demonstrated satisfactorily for my purposes that this is an industry where the processes involved are directly connected with engineering processes.

PN985

That was followed in the Full Bench, at page 15 of 16 on the Internet print, where the Full Bench was satisfied that:

PN986

Aspects of work being performed by companies in the IT industry may properly be described as engineering work and that where qualified professional engineers are employed to do this work they fall within the eligibility rules of APESMA.

PN987

So following that logic, where MacQuaries describe themselves as an IT company, we submit that consistently with that they would be and can be fairly described as in the engineering industry, and that becomes relevant to the various exemptions that I have already taken the Commission to. With regards to telemarketers in Sydney, we say that telemarketers in Sydney are covered by the clerical award which refers to canvassing people making phone calls. Now, there were submissions made about sales persons in Queensland, and this is - I would have dealt with this in more detail in our written submissions in respect of sales, but we say that if one looks at the Commercial Travellers Award in Queensland it does not focus on who the customers are, it focuses on whether it is wholesale business.

PN988

That means the focus of the award provision is on what is the business that is being solicited. We submit that on proper analysis the business that was being solicited by MacQuarie employees was wholesale business and I think it is paragraph - page 2515 - I am sorry, paragraph 2515, MacQuarie deals wit Optus and Telstra regarding the service the person gets. So MacQuarie goes to the customers, gives them something from Telstra or Optus, then deals with Telstra and Optus in respect of the service provided for that person. We say that is in the nature of wholesale and, therefore, people selling that, or soliciting it, are in the - within the scope of the Queensland award.

PN989

Now, with regard to Hutchison, it was - we say that in respect of information technology, that the persons performing that work can fairly be said to be technicians, from the authorities I have advanced. Indeed, we submit that the PREIA rule can't be called in to aid in respect of these people. Now, Hutchison it was said, similarly with sales people in Queensland, that they were not in the classifications. We reject that. At paragraphs 3076 to 3078 it is clear that dealing with dealers is by far the most significant channel that Hutchison products are sold. Selling to dealers is clearly, in my submission, wholesale.

PN990

With regard to the Queensland second tier agreement, number one it applies because Hutchison bought into Bell, that is at paragraph 2963; two, there is, as I recall the evidence, still a messaging service provided; three, in respect of matters outside the call centres, or outside that messaging service, I am sorry, we say they are covered by the State Clerical Award. Now, for some reason in respect of RSL Com it is said sales employees are not governed, there is reference to the New South Wales Sales Representatives Award, or the Commercial Travellers Award. We are not sure why wire to wire is not covered.

PN991

On our research in respect of this particular provision there is a decision of Karl J, the New South Wales Commission, dealing with technical services, that is Otto Waste v Klajman (1990) 34 IR 361. Now, this dealt with people collecting garbage and people going and selling garbage services. The background of it is at page 363. It dealt with people soliciting orders for the collection of industrial waste and it dealt with the concept of technical services at page 367, asking what is a technical service and finding that the soliciting of garbage orders was a technical service. So that is an authority with regard to that.

PN992

With regard to AAPT, the Commission will recall that there are - assuming if the Commission were to find it was somehow within the telecommunications industry, we submit that any findings of industrial dispute should be limited to Victoria. In any event, we say the other employees outside the State, we say, on our submissions, don't come within the scope of the industrial dispute. With regard to Card Call, we simply say that there has been matters raised about reselling and value adding. Whilst Card Call might do those functions we say the rules as they stood at the time of the service require focus on the principal function of the business.

PN993

We also say that the submission that somehow customer service officers fall within the PREIA rule because they get phone calls about billing really does go beyond any realistic interpretation of the PREIA rule. Finally, Commissioner, section 111AAA, firstly, with regard to Commissioner Whelan's decision, it appears that relevant authorities weren't brought to her attention, they are certainly not analysed in the Act. We have included in our submissions two Full Bench decisions and a decision of a Senior Deputy President dealing with this. We say they should be preferred if there is to be a dispute.

PN994

We also say that it is a primary consideration, the views of employees, but of course there are other considerations. We say what we have raised in paragraph 105(c) and (d) are relevant considerations also. Finally, there is a submission made today that a substantive submission can't be developed at present. We submit that that is not an appropriate submission. This has been a long running case. We identified, at an early stage, those that we said were subject to section 111AAA and submissions can and could have been made about that and, indeed, in large part have been. So we say that there has been plenty of opportunity given for the submissions.

PN995

Finally - absolutely finally - I think I made submissions earlier about technicians, and I have handed up definitions, and the Commission right at the end said it is the skills and functions asked to perform, it goes beyond the designation. We agree with that. We are not saying the word - the name that these people get has great significance, it obviously has some, but we do ask the Commission to look at what these people do, and we are happy to have their skills and functions looked at, and when so looked at those employees performing technicalities with regard to telecommunications, we submit that covers a wide variety of functions performed.

PN996

THE COMMISSIONER: Thanks, Mr Parry.

PN997

MR PARRY: If the Commission pleases.

PN998

THE COMMISSIONER: Mr Harvey?

PN999

MR HARVEY: Yes, thank you, Commissioner. Commissioner, I am aware of the time and I just want to make a couple of matters of clarification and to address a couple of additional matters that came up from the CPSU today. First, one clarification, going back to something that was said yesterday by Ms Jones with regard to the ASUs written submissions about what we were seeking to do - and I think she suggested, at one point, that we were seeking to import the whole of the old FCU rule or constitutional coverage into this matter and into the exclusions which were found in the CPSUs rules, and I think I have made it reasonably abundantly clear that that is not what our intention is.

PN1000

As I said yesterday morning, I think it was, that the FCU was an objector in the matter which brought the telecommunications rule into the CPSUs rules. We were not an objector that was satisfied by way - sorry, the FCU was not an objector that was satisfied in any way by an exclusion or a settlement and, in effect, went on and argued the case, and notwithstanding our arguments the CPSU was granted certain rights with regard to coverage in the telecommunications industry. So the exclusions that are in the rules are the ones that we referred to at 2F(3) and (4) and I think it is fair to say that the way Ms Jones characterised those rules yesterday is the way that they should be characterised and the import of what they say and what they do is as she described it yesterday.

PN1001

Therefore, the one that is important for this exercise is the sub-rule (4) which is the old Technical Services Guild rule. Secondly - just on that point, Commissioner, but having said that, because we were involved in that case we do think we know what the case was about and as what we said in our original written submissions, it was, you know, the desire of the CPSU, or its predecessor at that time, to have certain, you know, coverage rights within the telecommunications industry. That is why they did it, that is why they applied for the rule change and that is what they got subject to those exclusions that have been talked about.

PN1002

So we do say that in the context of dispute finding within the telecommunications industry, people allege to be in the telecommunications industry, this is where the, you know, the power and the coverage should be found in rule 3E and not elsewhere. We have said that and it has been, you know, commented on by others today, so I am not going to repeat that. Having been through that process and achieved the outcome or not achieved the outcome, as the case may be with regards to parts of what the ASU now is, we believe that that is the critical area that the Commission should be looking at to see whether the CPSU has the power to have this dispute found.

PN1003

Now, secondly, I just want to say, because even though the ASU has not raised section 111AAA matters, that is an application which has been made by the employers with regard to certain of their clients, it is the ASUs common rule awards that have been sort of bandied around a bit and kicked around a bit in the Commission over the last day or so. I just want to clarify one thing, because Mr Jones asked me this morning what one of the rates in that award was and I told him, and at lunchtime I checked with our New South Wales branch as to what the exemption clause, clause 40 in the New South Wales award, did say.

PN1004

I am verbally advised by them - and I don't have a copy of the clause with me and I notice it has not been tendered - but as I am advised, and contrary to what Ms Jones said this afternoon, that clause 40, the exemption clause, does operate to exclude certain employees from certain parts of that award, but the exclusion operates not, I think as Ms Jones said, with regard to employees who are paid 15 per cent above any particular classification within that award but you have to be paid 15 per cent above the top classification in that award. Therefore, Ms Jones's calculations are incorrect, as I am advised.

PN1005

The top rate is grade 5 in the award and the top rate is, currently in that award, $592.50, not $565.80 as the base which has been suggested. Therefore, the exemption rate should be, and is, $681 per week, or $35,412. So you have to be paid above that amount, and I will leave it to the Commission to do the sums on, therefore, who is in and who is - - -

PN1006

THE COMMISSIONER: Well, I know it is under 200,000.

PN1007

MR HARVEY: But there were certainly employees in Sydney who were talked about being paid $29,000 - - -

PN1008

THE COMMISSIONER: Yes.

PN1009

MR HARVEY: - - - so 35,000 is obviously significantly above that. Now, secondly, I am a bit concerned about the characterisation of some of our awards and I am surprised, Commissioner, that the CPSU hasn't sought to tender the awards that they say don't really govern the work of some of these employees. There have been characterisations and references to them but the awards aren't before the Commission - - -

PN1010

THE COMMISSIONER: I think some of them are, yes. Mr Parry put them in, I thought.

PN1011

MR HARVEY: Well, I stand corrected. In any case, the CPSU didn't take the Commission to them but if they are on the record then obviously the Commission is now able to look at them. But I have also been surprised, and I might go so far, Commissioner, as to say I have been shocked by the CPSU, which is an organisation which seeks to represent clerical and administrative employees in the telecommunications industry, I have been shocked at their characterisation, and I could say - even say denigration of the skills of clerical and administrative employees. I would just like to quote what Ms Jones said a couple of times about that.

PN1012

With regard to certain employees at MacQuarie, that is the data entry employees, she said they are not strictly clerical because - and the transcript - I have taken notes of this, Commissioner, but the transcript will either bear me out or not - but she went onto say that because accuracy was important in regard to those employees. Later on she said that the employees she was talking about were not number crunching clerical employees, suggesting that clerical administrative employees just crunch numbers, they didn't do some other sorts of higher level skills.

PN1013

With regard to WorldxChange, call centre employees were said to exercise advanced skills, including problem solving, therefore they weren't clerical administrative type employees. With regard to Hutchison, they were not merely basic clerical skills - and I wrote down "as argued by the ASU", well, I don't think the ASU put that at any time, I think Ms Jones meant the AIG - but the words are: not merely basic clerical skills. At RSL Com, the comment was made with regard to billing employees, that there were, you know, high levels of skills involved.

PN1014

Now, we say that this is a denigrating characterisation of the skills involved in clerical admin, point one, and, secondly, with regard to what those awards that have been talked about do cover because the clerical administrative employee awards around the country now include, and have for some time, a highly developed skills based classification structure which anybody can read those awards, Commissioner, and see that they contain high levels of skill within them. The grade 3 rate which has been mentioned in regards to New South Wales, and the grade 2 rate in the Queensland common rule award is equivalent to the C10, or the 100 per cent rate, so it equates to a skilled tradesperson rate.

PN1015

In both of those awards there are two rates - there are two classification levels above the C10 rate and relativities going up to 120, 125 per cent. So they are high level skills. They do include things like problem solving. Clerical administrative employees are employees who have high accuracy levels in their skills, they have customer service skills, they have - they are involved in a lot of work which is not near number crunching. In respect - with respect, Commissioner, to something you said - and again I am not saying that you are advancing this, you know, in any sort of serious way - but you said, in response to something Ms Jones said, that an all others classification, for example, wouldn't cover them.

PN1016

Well, the clerical administrative awards, common rule awards, around the country now don't have any all others type classifications. It is a - - -

PN1017

THE COMMISSIONER: I was reaching way back into history, Mr Harvey.

PN1018

MR HARVEY: Yes, yes, you are right, Commissioner. As I said, they have a matrix of skills from a clerical assistant type level to two levels above trades type level. So they are employees who have highly developed levels of skill, clerical administrative skills which are not mere clerical skills or just number crunching, but they are highly skilled employees. I just wanted to set the record straight there as to what the skills of clerical administrative employees were and what those awards covered. If the Commission pleases.

PN1019

THE COMMISSIONER: Now, Ms Jones, Mr Benfell made a submission and before hearing the answer left, as to putting in extra submission in relation to technical employees. I suspect that he is going to do that, so if you wish you can leave any closing comments you wish to make until seeing what he writes to me and then if you wish to add anything you can simply put that to me.

PN1020

MS JONES: Yes, thank you. I mean, our position on that is that, as we have indicated, I hope quite clearly, that that is a far better thing done during the award making process following the finding of a dispute but we will obviously make some response, if necessary.

PN1021

THE COMMISSIONER: Thank you very much. Well, thank you for your help. I think there is fertile ground here for me to err on many occasions. The matter is adjourned sine die.

ADJOURNED INDEFINITELY [4.38pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #P21 EXTRACT FROM THE QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE PN738
EXHIBIT #P22 MACQUARIE DICTIONARY DEFINITION OF 'TECHNICIAN' PN967