C2002/866, Transcript of Proceedings [2002] AIRCTrans 1005 (27 March 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N VT02975
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2002/866
C2002/908
C2002/1076

COMMUNICATIONS, ELECTRICAL,
ELECTRONIC, ENERGY, INFORMATION,
POSTAL, PLUMBING AND ALLIED
SERVICES UNION OF AUSTRALIA and
ANOTHER

and

TELETECH INTERNATIONAL PTY
LIMITED and OTHERS

Notifications pursuant to section 99 of the Act
of industrial disputes re wages and conditions

MELBOURNE

9.59 AM, WEDNESDAY, 13 MARCH 2002

PN1

MR S. JONES: I appear for the CPSU in the CPSU matters, and seek leave to intervene in the CEPU matters.

PN2

MR D. IRONS: I appear for the Communications and Plumbing Union in the matter of C2002/866, and I also seek leave to appear in the matter C2002/908 between the CPSU and TeleTech.

PN3

MR J. NUCIFORA: I seek leave to appear for the Australian Services Union in all matters before you.

PN4

MR J. TUCK: I seek leave to appear on behalf of Sitel in matter 1076.

PN5

MR P. EBERHARD: I represent VECCI and appear on behalf of Sales Force Australia Pty Limited.

PN6

THE COMMISSIONER: Where is Sales Force? Are they mentioned? They must be, otherwise you wouldn't be here.

PN7

MR EBERHARD: They are mentioned in relation to the CPSU matter, I believe, Commissioner.

PN8

THE COMMISSIONER: Which one?

PN9

MR EBERHARD: 908, I have been advised.

PN10

THE COMMISSIONER: Yes, thank you.

PN11

MR B. CHARLES: I seek leave to appear on behalf of United Customer Management Solutions in matter C2002/9908.

PN12

MR J. TAMPLIN: I appear for the Printing Industries Association of Australia and member Company, Salmat Pty Limited.

PN13

MR VITALE: I seek leave to appear on behalf of TeleTech.

PN14

THE COMMISSIONER: Thank you. Has there been any discussion about how this matter should progress, or shall I just go on and hear from you? Yes, Mr Jones.

PN15

MR JONES: If the Commission pleases, the CPSU matters come before you following the service of letters of demand, attached to which were logs of claims, on 4 and 13 December 2001 and 11 February 2002. The statement required by the rules of the Commission attached to two separate notifications deal with the matters in relation to the service and the failure the companies to accede to those demands.

PN16

Whilst this matter has been listed for programming and mention, the CPSU has, prior to today, circulated by facsimile and a letter dated 8 March a statement of the facts and contentions which the CPSU, in addition to the statement which we launched with the Commission - the Registry - I would be relying on in this matter. I have referred to some but not all of the employers in relation to that statement of facts. In short, if I could outline that statement of - I apologise, the Commission received a copy of the statement of contentions.

EXHIBIT #CPSU1 STATEMENT OF FACTS AND CONDITIONS

PN17

MR JONES: CPSU1 details the history of the CPSUs rules, eligibility and industry rules. Many of these matters would be familiar to the Commission through your involvement in other matters, but I go through them in this statement in some detail. Firstly, paragraphs 1 through to 4 deal with the history of the amalgamating unions which now form the body which is registered under the Federal system, being the CPSU, the Community and Public Sector Union.

PN18

Paragraphs 1 through to 8 talk about the CPSUs attempts to organise and represent the industrial interests of the employees in call centres. Particular relevance, Commissioner, is the material at paragraphs 9 and 10, which is also explained in paragraphs 11 and 12. Paragraph 10, excerpts from the CPSUs eligibility rule, if I could refer to it in the shorthand, the CPSUs call centre rule. This rule came into being in response to a decision of the Full Bench in relation to a contract call centre employer known as TeleTech International Pty Limited, a company which is represented here today by Baker and McKenzie, I understand.

PN19

The decision of the Full Bench of this Commission in the CPSU v TeleTech found, if I could use the shorthand, that the CPSUs rules as they stood at the time that that matter was determined, if my memory serves correctly as 1998, did not entitle the CPSU to represent employees in the contract call centre industry under our telecommunications industry rule. In response to that decision, the CPSU sought to and succeeded in altering our industry and eligibility rules to insert the rule which is included at paragraph 10. The relevant parts of paragraph 10, if I could describe it in summary form, is that it:

PN20

Provides eligibility to join the CPSU to any person who is employed as a customer service representative or telephone operator, or any person employed as a supervisor of the foregoing by business or part of the business which performs a call centre function for -

PN21

an entity of the Commonwealth, if I could use that shorthand expression. It will be our submission in these matters that each of the employer respondents to this matter either does or plainly is likely to employ persons who are performing call centre functions for a Commonwealth entity. In addition to that, we rely on the telecommunications industry rule which was amended relevantly following the TeleTech decision. That rule is well known to the Commission and is included at paragraph 15 of the statement of facts.

PN22

The relevant amendments to that rule inserted the words: "or part of a business" into each of the relevant paragraphs of sub-rule (e) of the industry eligibility rules of the union. If I could move to matters outlined in paragraphs 18 to 28. These are the facts as the CPSU sees them in relation to the business performed by each of the employer respondents to the matter here before you this morning.

PN23

On the basis of that material, those facts and the statement lodged with the Registry to initiate this matter, the CPSU says that there is material before the Commission for you to exercise your jurisdiction pursuant to section 101 of the Act, and we would urge the Commission to move to do that to enable a settlement of the alleged dispute. Commissioner, if I could say in closing the CPSU has taken the liberty to draft a short order of minutes which is a dispute finding which we provide to the Commission here this morning.

EXHIBIT #CPSU2 DRAFT FINDING OF DISPUTE

PN24

MR JONES: Commissioner, CPSU2 is the draft finding of a dispute, and it says in short that there is, pursuant to the Act, an industrial dispute between the CPSU on the one hand and the respondents to this matter on the other, and that the matters in dispute are those matters included in the letter of demand and the log of claims which is filed in this Commission. If the Commission pleases.

PN25

THE COMMISSIONER: Was there any objection to any of the applications for leave? Leave is granted in all cases. Mr Irons.

PN26

MR IRONS: Thank you, Commissioner. In relation to C2002/866, the CEPU sets out a log of claims to TeleTech on 20 November 2001. That was subsequently rejected by TeleTech. As a result of that, Mr Commissioner, we are seeking a dispute finding so that we can pursue an award with TeleTech as early as possible. We have forwarded to TeleTech information about which rule we are ruling on, which is rule 2 of the organisation, and we would be prepared to go into more detail in relation to those rules when the matter is programmed.

PN27

THE COMMISSIONER: Thanks, Mr Irons. Mr Nucifora.

PN28

MR NUCIFORA: Thank you, Commissioner. If I may, Commissioner, given that we have been granted leave to intervene and there isn't any dispute about that, the ASU has an interest in all of the employers that have been served with the log of claims, particularly in, I believe, C number 2002/908. If I go to the direct interests that we have, in relation to Sales Force Australia Pty Limited, UCMS Pty Limited and Salmat Pty Limited, we do have a formal dispute finding with those organisations, and I refer you there to a decision of Commissioner Leary on 18 August 2000 in C number 34152 of 2000.

PN29

THE COMMISSIONER: I am sorry, what was that again?

PN30

MR NUCIFORA: Sorry, that was 34152 of 2000. That was a dispute, a formal dispute finding, between the ASU and Salmat Teleservice Pty Limited and others. We do have direct interest in relation to those three organisations. And in relation to Sitel, we have a direct interest in relation to an enterprise bargaining agreement, a comprehensive enterprise bargaining agreement, that covers the Darlinghurst, New South Wales site of Sitel, that is a call centre there. The agreement number is AG806032, print number PR902187.

PN31

That was an agreement which was certified by Senior Deputy President Duncan on 12 March 2001. It commenced on 26 March 2001 and remains in force until 26 March 2003. It is my understanding we were only made aware of the mentioning and programming today, although we were aware that the CPSU were seeking to serve logs on a number of employers that we have an interest in. But in the certifying of that agreement - I don't have the statutory declaration before me - but it is my understanding that the relevant award was the State Clerks Award, now known as the Clerical Administrative Employees State Award of New South Wales. That was considered the relevant award by Sitel as the employer and, of course, the ASU.

PN32

So we have a direct interest in relation to Sitel. In relation to TeleTech - sorry, just before I move off Sitel, my understanding, as I am informed, Sitel also have a section 170LK that applies in Victoria, and I can only at this stage presume, although we are still checking, that that particular agreement relies on the Clerks Award which would be the Victorian Clerical Administrative Employees Award, but that is not something that I can submit as a case today, but if you look at the relevant award in New South Wales, then it is the State Clerks Common Rule Award that is applied. And the New South Wales Enterprise Bargaining Agreement with Sitel is a section 170LJ agreement.

PN33

Commissioner, in relation to TeleTech, we say that our union has coverage, broad coverage - and I think there is some consensus about that - with such contract call centres. We understand that in relation to C number 2002/866, and that is the log of claims served by the CEPU, we are intervening in that matter, but we believe that we can readily reach agreement with the CEPU in relation to that. In terms of our primary position, we have been, and we continue at this stage, to be opposed to the formal dispute finding.

PN34

Having said that, we have had discussions over a long period of time, particularly at the time of the rule changes that the CPSU went through in relation to contract call centres, we believe that there is agreement in principle in relation to that, particularly in relation to following jobs, but at this stage, as we all know, the devil is in the detail, and we seek to have further discussions. So our primary position is that we would oppose the formal dispute findings in relation to the CPSU.

PN35

We believe that further discussions with the CPSU could resolve any concerns that we might have there, but we do have a direct interest in relation to contract call centres, and at this stage we seek to make further submissions, subject to further discussions with the CPSU about our common areas, or our areas of coverage. If the Commission pleases.

PN36

THE COMMISSIONER: Thanks, Mr Nucifora. Mr Tuck.

PN37

MR TUCK: Could I just state that Sitel does formally oppose the finding of a dispute this morning. I am not in a position to make any detailed submissions before you this morning, Commissioner, save to say that Sitel is of the preliminary view that the CPSU does not have coverage of its employees. We are concerned in part, Commissioner, that the rule change made by Senior Deputy President Duncan was done on the basis that there would be no overlapping between other unions and the CPSU. The intention was that the CPSU would be able to follow work that was formerly done in the public sector.

PN38

Sitel - just to give background information - is a call centre. An American company is the holding company. It operates for a variety of businesses in Australia. It has, I think, performed some work for Telstra, but it isn't an entity which was formerly within a public sector organisation or company. So it is quite different in that sense. It is for that reason that we would like to know what the undertakings were in relation to the CPSU in getting that rule changed, but because we understand that would be that they would not then seek to extend into areas where they previously hadn't been, and that have been the basis upon which Senior Deputy President Duncan was prepared to grant that rule change.

PN39

We formally oppose, Commissioner, the finding of any dispute here this morning. We would like the opportunity to put detailed submissions in relation to the finding of a dispute in relation to this matter.

PN40

THE COMMISSIONER: Thanks, Mr Tuck. Mr Eberhard.

PN41

MR EBERHARD: Commissioner, Sales Force on 12 December 2001 corresponded with the CPSU and advised them that they would be opposing the finding of a dispute on the basis that they did not believe that they had employees who performed functions that would fall within the rules of the CPSU. At this stage I don't believe the CPSU has replied to that correspondence - well I haven't been given a copy of it certainly - but certainly I am instructed that Sales Force would be opposing the finding of an industrial dispute.

PN42

With regard to the comments that Mr Nucifora made, not that is relevant in this case, but it is acknowledged that Sales Force does have a dispute in the matter that Mr Nucifora spoke about with the ASU. But with regards to the CPSU, we would be opposing the finding of a dispute. If the Commission pleases.

PN43

THE COMMISSIONER: Thanks, Mr Eberhard. Mr Charles.

PN44

MR CHARLES: If the Commission pleases. UCMS also at the present time will be opposing the finding of a dispute against it in relation to the CPSUs application. But for reasons that I can briefly outline, what the UCMS would seek from you this morning, Commissioner, is an alternative course of action that may resolve the matter. And if I can take up Mr Nucifora's comments in relation to some discussions that can be held with his organisation and the CPSU, as the Commission may be aware, in mid to late 2000 there is some history involving my client and the CPSU and the ASU in this matter.

PN45

Firstly dealing with the ASU, there was, as has already been pointed out, a finding of dispute against UCMS in the proceedings before Commissioner Leary on 15 August 2000. Ultimately, on 20 December 2000, Commissioner, Senior Deputy President Acton certified the UCMS Certified Agreement 2000. Now unfortunately I don't have the print number with me today, but I can get that to you. That was an agreement between UCMS and its employees under section 170LK, and as part of the Senior Deputy President's order, the ASU were also made bound to that agreement, and as I understand it, the ASU were involved in the process that led up to the certification of that agreement under section 170LK.

PN46

The CPSU has previously served a log of claims on UCMS. That was done on 22 June 2000. There were various listing before yourself, Commissioner, on 1 September and on 5 October 2000, and they were adjourned never to come before you again, Commissioner.

PN47

THE COMMISSIONER: Why are they here then? Did we get it wrong? There was another matter?

PN48

MR CHARLES: Yes. Well, my understanding is that the initial adjournment from 1 September - and this is reported in correspondence which will be on file number C 35629 of 2000, which was the notification of the dispute by the CPSU from the original service of the log. There were discussions between the ASU, the CPSU, UCMS and also the ACTU concerning the issue of coverage.

PN49

THE COMMISSIONER: I see.

PN50

MR CHARLES: You received a letter just prior to the first hearing on 1 September 2000 from the CPSU seeking an adjournment, making reference to those discussions, although the reasons for the adjournment weren't actually set out in that letter, Commissioner. The matter was relisted for 5 October. It was adjourned until after 30 October to take the hearing past the rule change that was before Deputy President Duncan, and then the next we heard from the CPSU was the service of the log in December of last year.

PN51

For those reasons, Commissioner, UCMS would actually seek an adjournment of the matter in relation to it to enable further discussions to be held to resolve the matters which both Mr Nucifora and - picking up on what Mr Tuck has said also - the issue may well be able to be resolved between the parties, which may then not require a dispute finding to be made in the matter. If the Commission pleases.

PN52

THE COMMISSIONER: Thanks, Mr Charles. Mr Tamplin.

PN53

MR TAMPLIN: Commissioner, we received the log of claims and replied to the CPSU on 11 December 2001 stating our view that we did not believe that the rules of the union as set out covered the employees of Salmat or the work that they did. In point 25 of the union's understanding of their statement of facts, they refer to Salmat describing itself as a customer communications company, and if I take you to the last sentence:

PN54

In essence, it provides call centre services to a variety of companies in a variety of industries.

PN55

That is reasonably vague, and if we could get some more specifics, or more particulars, we may be able to give further close consideration to the union's point of view. As a result, we would oppose the finding of a dispute against Salmat, but we believe that a programming of the matter should be made, and further evidence put forward by the union.

PN56

THE COMMISSIONER: Thank you, Mr Tamplin. Mr Vitale.

PN57

MR VITALE: Yes, thank you, Commissioner. My client, TeleTech, wrote to the CEPU on 23 November 2001, and to the CPSU on 10 December 2001, both of those letters in response to the respective logs of claims, both rejecting the logs of claims and indicating to the union that our position is that we see no validity in the log of claims. We don't believe that either union appropriately has coverage in relation to TeleTech's business. We obviously would like the opportunity of making more detailed submissions about all of that, and so far as the CPSUs statement of facts go, we reserve our position in relation to that, and we seek the opportunity to lead further evidence. If the Commission pleases.

PN58

THE COMMISSIONER: Very well. Thank you. We will go off the record for a moment.

OFF THE RECORD

PN59

THE COMMISSIONER: I propose to issue directions to deal with this matter. In doing so I am not unmindful of the application that was made by Mr Charles for an adjournment. The directions that I will issue hopefully will provide sufficient time for Mr Charles and his clients to have some discussions with the union, and if they are able to resolve the matter, well and good.

PN60

The directions I issue are these: that the notifiers are to lodge in the Australian Industrial Registry and serve on the other parties any further or additional material that they would wish to put before the Commission in this matter by 3 April. In the event that summonses are sought and resisted, time will be set aside on 27 March to hear submissions in relation to that. The intervener and the respondents shall lodge and serve on the notifiers and file in the Australian Industrial Registry any submissions in reply by 18 April, and the notifiers shall have until 3 May to make any reply in writing to the respondents' submissions.

PN61

The matter will be listed for four days in the week beginning 27 May in Melbourne beginning at 10 o'clock. Thank you. Is there anything anybody else would wish to put on the record at this stage? All right. Thank you for your assistance. The matter is adjourned until 27 May.

ADJOURNED UNTIL MONDAY, 27 MAY 2002 [10.35am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CPSU1 STATEMENT OF FACTS AND CONDITIONS PN17
EXHIBIT #CPSU2 DRAFT FINDING OF DISPUTE PN24