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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:(02) 9238-6500 Fax:(02) 9238-6533
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER SMITH
C2001/6358
TELSTRA/CPSU AWARD 2001
Application under section 113 of the Act
by The Community and Public Sector Union
to vary the above award re dispute resolution
SYDNEY
10.20 AM, TUESDAY, 21 MAY 2002
Continued from 16.5.02 in Melbourne
Hearing continuing
PN3230
MR RICH: Commissioner, before we commence this morning I did indicate, at the beginning of proceedings last week, I was going to be handing up a document which would, in some way, amend the application before the Commission, particularly in respect of people who may be seeking to take leave after the date of the application but before any decision or order might be handed down by the Commission. What I have done is I have got a draft order that seeks to deal with that matter which I would like to hand up, if I could.
PN3231
What the order seeks to do rather than retrospectively re-credit leave that might be taken as to grant equivalent leave as to that which has been taken so it is creating a new right for those people who have taken leave in order to attempt short courses specifically directed towards the effective dispute resolution which follows the wording of the proposed clause in our award.
PN3232
THE COMMISSIONER: Mr Rich, how does this fit with the case as currently stated? Let me ask the question bluntly. As I understood the evidence on the last occasion, the syllabus has not been developed, only the headings.
PN3233
MR RICH: That's right.
PN3234
THE COMMISSIONER: Well, how do I know that somebody has attended a course directed to dispute resolution?
PN3235
MR RICH: The course is being developed in accordance with the outline which has been presented to the Commission.
PN3236
THE COMMISSIONER: I understand that but this seeks to have retrospective application to what course?
PN3237
MR RICH: To that course which is - - -
PN3238
THE COMMISSIONER: Being developed.
PN3239
MR RICH: That's right. I guess it depends upon the assurances the Commission might seek to put into the final clause which is inserted into the award but should - this order was aimed at being complementary to the clause which is currently proposed which does not require that the course be approved but simply that the course be directed at effective dispute resolution.
PN3240
THE COMMISSIONER: You see that as a stand-alone order, would you or for a variation to the existing - - -
PN3241
MR RICH: Stand-alone order, that's right.
PN3242
THE COMMISSIONER: A stand-alone order.
PN3243
MR RICH: In the event that the Commission sought to - the variation to the award was different to that sought by the specific terms of our application, the order may need to be altered appropriately so that if, for example, a clause were to be inserted which required agreement between the parties on the content of the course, then it would be appropriate that the course that had been undertaken be approved by both parties in that sense as well.
PN3244
PN3245
MR RICH: Also, after some things that was said in evidence, attention was drawn to the wording of that proposed clause, in particular clause 19.6.7 which referred to the representative who would be eligible to attend Commission proceedings arising out of the dispute resolution procedure. Attention was also drawn to clause 19.5 which dealt with the referral of matters unresolved to the Commission and the words the CPSU - the intention or meaning of the words that the CPSU had sought to insert. I might hand up another document which seeks to address both of those issues and clarify more than anything else the position.
PN3246
Commissioner, the amended parts of the application are underlined and clause 19.5 the words "for conciliation and if necessary arbitration" have been inserted. That changes what was previously in the clause which was "for assistance in resolving the matter". Mr Evans gave some evidence about what the intention was of those particular words and the amendment that has been made seeks to simply make that point clearer and to give proper effect to the intention of the union - I don't think it changes the effect of the application.
PN3247
Equally, clause 19.6.7 previously referred to the representative involved in clauses 19.2 and 19.3 but, of course, 19.2 and 19.3 themselves didn't refer to representative. The representative referred to is that representative who may have become involved in the process through 19.6.5 and the amendment in 19.6.7 is intended to simply reflect that. The previous wording of that clause was the representative referred to in those clauses, being 19.2 and 19.3, would be granted leave of absence. As I said, it has been amended to reflect the representative becomes involved in the matter through 19.6.5.
PN3248
THE COMMISSIONER: Mr Parry, do you have anything to say on the application to amend the application?
PN3249
PN3250
PN3251
THE COMMISSION: Please state your full name and address?---Michael Crosby, 57 Victoria Street, Lewisham.
PN3252
MR RICH: Mr Crosby, can you please just re-state your name and address for the record?---Michael Crosby, 57 Victoria Street, Lewisham.
PN3253
You have made a statement in these proceedings?---I have.
PN3254
Do you have that statement in front of you?---I do.
PN3255
Do you have any amendments or changes you would like to make to that statement?---No. There is a split infinitive in clause 25 that I regret but I will have to live with it.
PN3256
On that basis, is the content of your statement true and correct to the best of your knowledge and belief?---Yes.
PN3257
PN3258
MR RICH: Mr Crosby, I have a few additional questions to ask you. I would just like to ask you, in relation to your training and experience, what is your involvement in the delivery of courses to people?---The main course I deliver is the course for senior union leaders. It's aimed at branch secretaries, assistant national secretaries, senior officials from trades and labour councils and from the ACTU. Beyond that I do, I suppose, the important delegate meetings so that if there's a delegate convention I will be brought in to do training for 400 people, for example, on particularly strategically important campaigns. They'll get me in to do delegate training in that case. So that for example, the delegates at BHP Iron Ore when through 3 days with me. Beyond that, not a huge amount of day-to-day involvement with training.
**** MICHAEL CROSBY XN MR RICH
PN3259
Right, thank you. Can I just take you to paragraph 10 of your statement, if I could?---Yes.
PN3260
Could I ask you to explain the academic research you refer to there in paragraph 10?---Really I think that the academic research I'm referring to there doesn't quite make the specific point that I claimed for it. What it does is say that work places where workers have voice, where they're unionised, where they're consulted by management are the most productive work places. There's also research and I think later on we refer to it, which was commissioned by ACTRAC on what are the key competencies for - or what are the key skills required for union representatives and I think we have a pretty clear idea of what is required in that area.
PN3261
Also in relation to paragraph 12 you talk about the resolution of issues in your experience. Do you have any examples you can give of that experience you refer to?---Yes, well, there's any number of examples. It's, I suppose, one of the most common complaints of organisers. Do you want me to give you specific examples?
PN3262
Yes, if you could give an example?---One as at the Sydney Opera House. We were called in by the union in fact to provide a trainer for the delegates there. I sent a trainer down there for their 60 delegates or so and the problem basically was that it's a heavily unionised work site of considerable time sensitivity. You know, you can't afford to have a dispute lead to a stoppage immediately before a performance. What was happening was that the workers were using that power fairly indiscriminately so that the first thing that would happen would be, rather than gradually escalating pressure on the employer, would be they would go on strike. Another example from my own experience as a union official years before was at SBS where particularly workers from other cultures didn't quite understand the difference between negotiating with employers and actually taking action. So that when an issue arose - well, in one case they went straight to a hunger strike and occupied a studio and away you went. In both those cases the solution to it was training. People understood the way the system worked, what was the most effective way of getting issues sorted out and I think in both cases the general industrial relations environment in those work places improved.
**** MICHAEL CROSBY XN MR RICH
PN3263
Thank you. Can I also take you to paragraph 20 of your statement and also paragraph 23 I think more particularly where you refer to a study, an ACTRAC study, which identified several competencies. That study was carried out in 1993. In your view are those competencies that are identified, are they still - does that still hold true today?---Yes, look, I actually don't hold - well, it was important at the time that we got the research done to really pin down what the competencies were. They're commonsense. Work place representatives can't expect to represent the people who elect them unless they are able to communicate with members, disseminate information, they've got to understand the system in which they're operating then and they've got to be able to talk confidently to management about the issues that are of concern to the people they represent. I don't think any of those three are rocket science. I don't think that's going to change any time soon at all.
PN3264
I don't have any further questions for Mr Crosby.
PN3265
PN3266
MR PARRY: If the Commission pleases.
PN3267
Mr Crosby, I think you gave evidence before a Full Bench a couple of years ago in respect of trade union training?---Yes, that's right.
PN3268
I understand that you were called by the various unions that were involved in making submissions in that claim?---That's right.
PN3269
That included the CPSU?---I'd have to leave it to you. I must say it's a while ago and I presume that's correct.
**** MICHAEL CROSBY XXN MR PARRY
PN3270
I think you made a statement and gave oral evidence to the Commission?---That's correct.
PN3271
Your evidence was broadly to the effect that trade union training was necessary for the effective operation of grievance and disputes procedures?---That's correct.
PN3272
That is similar sorts of evidence that you are presenting to the Commission in this proceeding, isn't it?---Yes, indeed.
PN3273
Now, I have a copy of the transcript of your evidence to the Full Bench in July 1998 and there are a few scrawls on it which are my scrawls and I'm afraid I can't - I only have a copy with the scrawls on it.
PN3274
THE COMMISSIONER: Would you just show it to Mr Rich for a moment?
PN3275
MR PARRY: Yes, certainly, if the Commission pleases.
PN3276
THE COMMISSIONER: Nothing there directed at improperly influencing him there, is there, Mr Rich?
PN3277
MR PARRY: A few suggested answers for Mr Crosby, dots and that is fine. Perhaps I will hand the document to Mr Crosby. Obviously the handwriting on it is - I don't rely on it and I'm sure everyone else will happily ignore it too.
PN3278
THE COMMISSIONER: Thank you, Mr Parry. Do you want me to have a copy?
PN3279
MR PARRY: Yes, I do.
**** MICHAEL CROSBY XXN MR PARRY
PN3280
THE COMMISSIONER: Thank you.
PN3281
MR PARRY: Now, this is a document uplifted from Auscript and it indicates that it is a transcript of proceedings given on 7 July 1998 before a Full Bench. I don't ask you if you have seen it before because you probably didn't look back and look at the transcript of what you say but I'm going to take you to a few parts of it and if it does not appear to be transcript or does not appear to accurately reflect what you have said, if you could please tell the Commission, Mr Crosby?---Yes.
PN3282
I think page 3 starts off with - at the bottom of page 3 they tender a document. Now, this - you were there giving evidence about the present legal structure of your body and I think New TUTOR, I think it is spelt T-U-T-O-R, I think that should be T-U-T-A, presumably?---Yes, that's correct.
PN3283
It describes its function, well, its structure incorporated in Victoria and I presume that is still the position?---That's correct.
PN3284
Over the page on page 4, about a third of the way down, you describe the members that make it up and the position is that you gave evidence there that those members are trade unions, individual persons and trade unions and individual persons and that presumably is still the case?---That is.
PN3285
And a bit further down, about five or six paragraphs down, it talks about most unions are subscribing members. It does of course cost them as much money as I can ring out of them to be subscribers. CPSU and SDA for example are subscribing members. The AWU, and I think you say the TWU, are not. Is that still the position?---The TWU is, the AWU is not.
PN3286
I see but at - - -?---But it is still the position in relation to the CPSU.
**** MICHAEL CROSBY XXN MR PARRY
PN3287
I understand and it goes on, the paragraph after the next one, these members basically control the body, do they take policy decisions and the like? And you answered yes to that and I presume that still remains the position?---Yes.
PN3288
Page 6, if I could take you to page 6. I think the third question down you were asked about your knowledge of provisions in the Workplace Relations Act and I think - well you said there:
PN3289
In general terms I do not run the advocacy training myself. I take responsibility for training union managers.
PN3290
Now, you have given further evidence this morning about that particular position but can I take it from your evidence this morning that your evidence back in 1998 was essentially correct, that in general you don't run advocacy training yourself?---That's right.
PN3291
Now - - -?---Can I just clarify that? Advocacy training of course isn't delegate training. Advocacy training is the training of industrial advocates, people who appear in the Commission.
PN3292
But I also assume from your evidence this morning that in general you are not involved in advocate training?---Yes, that's right.
PN3293
I'm sorry, delegate training?---No, not generally apart from the design of curriculum and so on which I'm the person who commissions and reviews and makes sure that it does the job it is intended to and as I say for the particularly important assignments I will do them myself.
PN3294
I see. I think on that page 6 you were then asked questions about Australian workplace agreements and you say there the policy of the unions which make up your counsel is to oppose use of Australian workplace agreements and you say absolutely. And you go on to say:
**** MICHAEL CROSBY XXN MR PARRY
PN3295
On the basis that we do not feel they are in the best interests of the workers.
PN3296
Does that remain a view that not only you hold but presumably the organisation that employs you, TUTA, adopts as a policy?---Well, I couldn't say that we've adopted it as a policy. You could take it as a given that we don't like Australian workplace agreements. We believe in collective representation of workers.
PN3297
In light of that answer then I'm not sure what you meant by your next answer there about training would reflect that policy and you accepted that proposition that the training by TUTA reflected that policy. Presumably the answer you gave was correct at the time?---What that - - -
PN3298
The training reflected that policy?---Well, I think really if you go to the first question asked of me and the policy of the unions, it is really small "p" policy. The question you put to me I took to mean is there a resolution on our books saying that we don't believe in Australian workplace agreements, large "P" policy if you like. No, there's no such resolution, it wouldn't come up but I think most people that would do training in this area for unions or would be employed by me would view collective representation as giving more power to workers and Australian workplace agreements as giving less. So to be honest the answer to the third question if I were going to expand on it now would be the issue does not really come up. It's something of a non-issue in most training for workplace representatives.
PN3299
Your training takes the position that Australian workplace agreements don't for your purposes of training exist?---Sorry, just repeat the question.
PN3300
Well, I'm trying to understand your answer I suppose?---Yes.
**** MICHAEL CROSBY XXN MR PARRY
PN3301
You said it does not arise as an issue. Now - - -?---Yes, I see. Well, let us go back to the training. Typically delegate training will be around things like communication skills. Now, whether it is an Australian workplace agreement or not does not come up because that has got nothing to do with communication skills. Similarly in relation to the way in which the Industrial Relations system works, yes, workplace agreements will form part of that and a trainer will go through the various sections of the act and the way in which people can be treated by their employer. There will be occasions when we will do training for people who are on workplace agreements. That was the case at BHP Iron Ore for example. It is the case in a number of other parts of the metalliferous mining industry where people are on individual agreements but they need communication skills, they need to be able to operate the dispute settling parts of their AWAs.
PN3302
Your evidence on page 7 where you start up at the top of the page where I think you are talking about new TUTA, you were asked on the previous page to go on and expand with your answer and go on and say:
PN3303
At all times I think the training was provided at government expense or now at union expense was aimed at putting forward a union view about industrial legislation and things like that.
PN3304
Do you see that?---Yes.
PN3305
Is that a fair summary of the sort of training that is provided by TUTA now?---Absolutely. I wouldn't want it to be characterised as being in some sense though because it is a union view it is inaccurate.
PN3306
No, I'm not debating whether the view is - - -?---That part of it is put pretty straight. The workplace representatives have got to get it right as to what is in the act and what their rights and responsibilities are.
**** MICHAEL CROSBY XXN MR PARRY
PN3307
And you have also I think in the sentence, the question after that, indicate that the policy of your member unions would be to oppose use of non-union certified agreements, yes?---Yes.
PN3308
And training would reflect that policy, and that remains the case?---Yes, but again in delegate training I don't know that it would come up. Most of the people being trained as part of delegate training would be in union collective agreements. There would be cases where there delegates in workplaces with non-union certified agreements. The key thing is are they capable of exercising their responsibilities as delegates.
PN3309
And I think after the next answer you gave which went, the long answer then, you are also asked now:
PN3310
Is it your view that awards cannot operate effectively, effectively operate without a clause providing for trade union training?
PN3311
Your answer was:
PN3312
No, that is not my view. It is my view they operate better if trade union training leave is provided.
PN3313
Does that remain your view?---Yes, it is, yes.
PN3314
Now, I think on page 9 you - this is in re-examination by Ms Jones and I don't want to take you through the full part of it but on page 9 she asks you about the content of trade union training and your point 11 where you point out the basic competencies that are taught in trade union training course:
PN3315
Have there been any changes in that?
**** MICHAEL CROSBY XXN MR PARRY
PN3316
And you say:
PN3317
In terms of delegate training very little.
PN3318
And you go on and give an answer which without going to each and every detail of it also refers to halfway down:
PN3319
I don't think the union movement can afford to have delegates who are not settling grievances and disputes as expeditiously as possible.
PN3320
You then refer to a video and negotiating in the workplace and you also refer to the value of well-trained delegates in an award context for settling disputes and grievances. Now, you have given an answer to Mr Rich today about he took you to competencies and asked you about competencies in 1993 and your answer was: look they haven't really - that they remain as true today, as important at the time. And you describe them as common sense and so forth. Now, is it fair to say that the answer you gave in 1998 about competencies and in terms of delegates training is essentially the same position you hold now as you held in 1998?---Yes.
PN3321
And I think on page, over the page on page 10 - I'm sorry, go on to page 11 really, you talk about these competencies I think and at the top of the page you talk about improving communication and dispute resolution and I think the next question about effectiveness of operation of the awards and link the competencies. I think it is almost a very similar question that was put today but I'm assuming the evidence you gave in 1998 with regard to these competencies again reflects broadly the position that you currently hold?---I hope so. Can I just have a minute to read it?
PN3322
Yes. I'm not trying to pick you up on little things. It is just a general philosophy approach but you have a read of it, Mr Crosby, and if there's something that is not correct there or a view that has changed please tell me?---Yes, don't agree with that.
**** MICHAEL CROSBY XXN MR PARRY
PN3323
Thank you. I tender that transcript.
PN3324
PN3325
MR PARRY: Now, Mr Crosby, in your statement to the Commission you have indicated you have written a number of articles on the subject of union development?---Mm.
PN3326
And I think you have also - I'm happy to hand this to you but one of the articles that I've found that you have read is: union renewal in Australia, a view from the inside?---Yes.
PN3327
You are familiar with that one. Now, without going to each of the propositions within it I think the very first page of it in the introduction refers to Australian unions taking a battering and do you have that article before you?---Yes, I do.
PN3328
And it starts off:
PN3329
Since 1994 a small group of union educators and officials have argued at every opportunity that a good part of the answer lies in unions undertaking a process of renewal inspired by the theory of organising.
PN3330
?---Mm.
PN3331
And you then refer to the publication of "Unions at Work" which I think was a document that followed an ACTU study tour overseas?---That's correct.
**** MICHAEL CROSBY XXN MR PARRY
PN3332
And I think it follows then, what follows is a progress report from one of these advocates of organising. Can I take it that that is how you describe yourself as an advocate of organising?---Yes.
PN3333
Yes, and this theme of being an advocate of organising, is it fair to very broadly and roughly summarise it as making the delegate structure part of the organising role of unions?---Yes, that's true.
PN3334
And I think you have also published "Workers On Line," is that - you have published an article in "Workers On Line"?---Yes, in a technical sense of publication I suppose.
PN3335
Perhaps I should hand you a copy of this. I'm sorry?---In the technical sense of publication I suppose, yes.
PN3336
Well, we are not in a defamation proceeding at the moment?---I hope not.
PN3337
Do you have a copy of it?---No, I haven't.
PN3338
I have a copy for you and a copy for the Commission?---Thanks. I apologise for the photograph. I didn't pick that.
PN3339
Yes, I didn't recognise you, Mr Crosby. You are probably better in real life. An article I think dated 11 August 2000 and do you recall this article?---Not really but let's have a look at it.
PN3340
I see. It appears in the context of an interview with you where somebody is asking you questions?---Yes.
**** MICHAEL CROSBY XXN MR PARRY
PN3341
About being a - your views on the changing nature of union power and various other matters and I think over the page you were asked about the concept of organising and what the members understand and I'm more interested in towards the end of the article you were asked on page 6 of 8 at the bottom of the page there's a question asked of you:
PN3342
How important is union education and are we doing enough of it?
PN3343
And you say there:
PN3344
Look education is absolutely at the centre of an organising approach.
PN3345
?---Yes.
PN3346
How can you have increased levels of activism if you don't give your activists the skill to be able to do their job?
PN3347
And can I stop there and say presumably you were answering that question in a rhetorical way in that it is a view you have that there should be increased levels of activism and that should follow from giving the activists the skills to be able to do their job. You agree with that?---Yes, I do.
PN3348
I think over the page in the second paragraph it said - - -?---Sorry, is this the last?
PN3349
Page 7 of 8, I'm sorry?---I haven't got page numbers. Is it the second-last page?
PN3350
Second-last page, yes?---Yes.
**** MICHAEL CROSBY XXN MR PARRY
PN3351
Since Government funding of delegate education ended unions have been sacking training staff. Training staff are seen as the lowest status employee in the union. The amount of money going into training is at an all time low and a huge proportion of our delegates and activists have received no training.
PN3352
Can I take from that expression there that it is a view you hold that the trade union movement has been moving away from responsibilities it has to train staff?---No, I don't think so. What happened was that under - well from 1975 until 1996 the government put at the end around $10 million a year into delegate training and that ceased in 1996. The union movement has been scrambling to work out how to replace that effort and of course new TUTA is one response to that. The point I'm making there is there has to be a reinvestment in training if you are going to have well developed delegate structures perpetuated.
PN3353
Yes?---I don't think it is particularly different from what I've said there really. The only distinction I'm making is it is not really a question of in response to your suggestion unions reducing the amount of money they put into training. Unions historically since '75 anyway have not put large amounts of money into training because the government has paid for it. What has had to happen since 1996 is that unions have had to increase the amount of money they put into training to replace what they used to get from the government.
PN3354
1996 put in?---1996, yes.
PN3355
Yes, I see. Because I suppose the following paragraph seems to be you answering the question:
PN3356
What has got to happen is that we have got to find ways of getting employers to pay for delegate education and that is why we are looking for unions to act as a spearhead for a campaign around PEL, a scheme we borrowed from the Canadian movement, Canadian employers contribute a certain payment per hour per union member to the workplace and it goes into a trust fund and that is what is used to train delegates and activists.
**** MICHAEL CROSBY XXN MR PARRY
PN3357
So that as you see it is the solution, to get employers to pay for delegate education?---It is certainly one of the solutions. It is not just Canada but the Scandinavian union movement and industrial relations system depends upon that as well. I think the Canadians probably got it from them.
PN3358
THE COMMISSIONER: Is that tri-party in Scandinavia involving the government as well or is it just bi-party?---I don't think so. No, I think it is an industrial demand placed on employers as part of the collective bargaining process and they get very substantial funds from employers to fund union education.
PN3359
Yes, thank you?---At, you know, a much higher level even than the Canadian movement has managed to get. I think though that I would make a distinction, if I can go on, between that kind of scheme and the traditional support employers have given to delegate education in this country which of course is through clauses like the one under discussion: trade union training leave clauses.
PN3360
MR PARRY: Yes?---So what I'm urging on unions is not just that they get trade union training leave but that they get employers to contribute towards the cost of educating their delegates.
PN3361
Yes, because the next paragraph goes to the next step about - - -?---Yes, so it does.
PN3362
I think we've got to be serious about getting union leave provisions put into enterprise agreements and making that an important issue that we bargain around.
PN3363
And presumably that is a view you still hold and you think it is the right way for the union movement to go?---That's true.
**** MICHAEL CROSBY XXN MR PARRY
PN3364
You also then finally on this point you talk about in the last paragraph about breaking in in training down in digestible models, delivered at a time that is convenient to members and you say: it has got to be capable of being delivered at night on weekends, in lunchtimes wherever and it has got to be capable of being delivered over the net or in people's homes wherever they are. Presumably, that accessibility to training is there is an important thing?---It is the second best option, I must say. As I say in my statement, the difficulty with the training that we do is that it is - apart from the knowledge-based parts of it, it is very difficult to deliver at distance, and given the work intensification in many workplaces our success in getting union training broken up into modules and delivered flexibly is very low indeed. I don't know, for example, of any union that has managed to pull off what I am suggesting there. I am certainly pushing unions to try it. The reality is that if you want to do it properly it needs to be done in, well, reasonably lengthy periods of one or two days.
PN3365
Yes, your proposition in the final sentence is got to be capable of being delivered suggests that it can be delivered but it requires some work by the trade union movement to facilitate that and put it in a proper form and develop it so that it can be capable of being delivered?---Yes, that is true, but the point I made in response to the previous question still holds I think.
PN3366
Yes, I tender Workers On-line if the Commission pleases.
PN3367
PN3368
MR PARRY: Now, just in your statement there is a quote from the Business Council of Australia and I am afraid I haven't been able to find where that quote comes from. Do you recall?---It was around 1996 and I am afraid I haven't been able to find it either.
**** MICHAEL CROSBY XXN MR PARRY
PN3369
No?---I think it was quoted in the previous case where I previously gave evidence in 1998 and that is why it is reproduced there.
PN3370
Yes, but you can't assist us in telling us the source of it?---Unfortunately not, no.
PN3371
Now, I think this model of organising also became part of an article you have written - I am sorry, "Down with the Dictator"?---That is right.
PN3372
Do you have a copy of that?---I do.
PN3373
I think there is also a commentary on "Down with the Dictator" from Stephen Long?---Yes.
PN3374
You have presumably read that?---I have, I haven't got a copy of it.
PN3375
Yes, I have a - perhaps if I can hand you a copy of the commentary. If I can hand to the Commission the articles. Now, I am not sure what year this "Down with the Dictator" was written. Do you recall?---Fairly recently. Last year perhaps.
PN3376
Can I say very broadly that this continues your commentary with regard to the development of the organising model of trade unionism?---The Stephen Long article or?
PN3377
No, your article?---I see, yes, okay.
PN3378
THE COMMISSIONER: The dictator refers to the market.
**** MICHAEL CROSBY XXN MR PARRY
PN3379
MR PARRY: That is right. Yes, I am not certainly - well, there are references to, I think, Hitler in there somewhere, Mr Crosby. It is a fairly - it is an article that argues a point of view fairly strongly, doesn't it?---I argue all of my points of view fairly strongly, I think.
PN3380
It takes a certain position with regard to both Australian society and the role of trade unions in it, doesn't it?---Yes, it does.
PN3381
I think it - the particular parts I think that I was interested in were, I think, page 123?---I am sorry, I haven't got the printed version.
PN3382
I see?---Can I get that?
PN3383
It is under the heading: A new style of unionism which I think - - -
PN3384
THE COMMISSIONER: Page 9.
PN3385
MR PARRY: Thank you, Commissioner. Yes?---Yes.
PN3386
This refers to the document the "the unions at work". Now, as an observer of the trade union movement, is it fair to say that this article is a fairly influential one within the trade union movement?---I doubt that many people in the union movement would have read it. Perhaps regrettably, but that is the fate of most articles in academic journals.
PN3387
No, not "Down with the dictator" I am more - the article - I think the page I am referring to: the ACTU unions - - - ?---Unions at work.
PN3388
Yes?---I beg your pardon, yes, it is compulsory.
**** MICHAEL CROSBY XXN MR PARRY
PN3389
It is compulsory?---No, I am joking but it would be very widely read.
PN3390
The philosophies in it would be ones that many unions would be striving to adopt and follow?---Many unions would say they are striving to adopt and follow it, fewer would actually do it but my hope is that more and more would try and implement "Unions at Work" yes.
PN3391
Because, I think in - under the new style of unionism you then refer to - it points out this "ACTU Unions at Work" it refers to Australian researchers and then a Mr Peetz?---Peetz, that is right.
PN3392
A strong correlation between increases in membership and lower than average union decline and workplaces having the following characteristics, active union delegates bargaining with management, the ability to take industrial action when it is necessary to do so?---Yes.
PN3393
Now, those three characteristics are presumably you put them in there because you see those characteristics as being ones that are characteristics that should be followed in the new sort of trade unionism that you advocate?---Yes, it is a quote from David Peetz's work. You have to be careful though extrapolating from that to the training that we do because, if you can imagine me as I did yesterday standing up in front of 140 organisers from the retail union, the SDA a pretty conservative union and putting those points up they would not be happy with me advocating industrial action. Indeed, that is never the way in which we talk about it in training. All that happens, if you talk about industrial action in the sense of: well, everybody let us go out on a six week strike, is that you scare the living daylights out of the delegates. The key point about organising theory is that if you are going to take action it has got to be escalating pressure action and that means that you start off with talking to your employer, taking up a petition, writing a letter, leading a delegation, wearing a badge, in one case wearing a blue bandaid and that kind of stuff. So that I wouldn't want you to suggest I am extrapolating from that that we are teaching bomb throwing.
**** MICHAEL CROSBY XXN MR PARRY
PN3394
Well, perhaps go over the page after you have dealt with Mr Peetz and a Mr Wooden and a Mr Bronfenbrenner?---A Ms Bronfenbrenner.
PN3395
Bronfenbrenner. After dealing with the dot points dealing with Mr Bronfenbrenner, you then seem to put in your own views where you say:
PN3396
The fit between Australian insights into successful retention strategies and the American view of what it takes to win new membership belt...
PN3397
is quite precise.
PN3398
Active delegates with the skill and confidence to bargain with management and when necessary to exercise their power will preserve existing union membership.
PN3399
Now, again, that appears to be consistent with the sort of direction that Mr Peetz is going in. Do you accept that?---Yes.
PN3400
You then describe that as the: first part of the reunionisation project is therefore clear. Do I take it from your use of the word "reunionisation" that these particular steps as seen as part of a strategy to increase the number of union members in workplaces?---The first part of reunionisation's retention so that what we are aiming to do is protect against union collapse and another part of the Peetz research shows on the basis of an analysis of AWORDS, Australian Workplace Industrial Relations Survey that unions that were active in the workplace were fire proofed against collapse. So yes, that is certainly one of the outcomes of delegate training that is good from our point of view, as I think are higher levels of productivity for employers where workers have the confidence to have voice.
PN3401
Now, I think if I could tender that document: Down with the Dictator.
**** MICHAEL CROSBY XXN MR PARRY
PN3402
THE COMMISSIONER: Do you want to deal with the commentary separately or together, or do you want me to - - - ?---
PN3403
MR PARRY: It is all in the one document. I am happy to have it tendered together - - -
PN3404
THE COMMISSIONER: Together.
PN3405
MR PARRY: - - - but if it was separate - I thought I handed up two separate documents and I was making - attempting to make it easy for the Commissioner, but I am happy to have them both one document.
PN3406
PN3407
MR PARRY: Now, perhaps before leaving that document, the commentary, Mr Crosby of Mr Long, you are aware presumably that Mr Long is a journalist that sometimes writes with regard to industrial relations matters?---Yes.
PN3408
He wrote - he writes a commentary which in some respects is critical of your organising model?---Yes, that is right.
PN3409
I think on - at the start of the article I think the Commissioner it is number 136?
**** MICHAEL CROSBY XXN MR PARRY
PN3410
THE COMMISSIONER: Yes.
PN3411
MR PARRY: It - I think at the first big paragraph starts off with Kenahen and a reference to an American movie but it goes on, after the first sentence and says:
PN3412
The organising model of unionism advocated by Michael Crosby has much in common with the struggles celebrated in Matewan that is class conscious and adversarial, employs roving organisers whose task it is to link up with delegates and activists who have grievances against their bosses. It aims to politicise workers instilling collective solidarity in the belief that workers must unite in order to challenge managerial prerogative and achieve a better deal. In a sense, it contrasts sharply with union and management partnership model based on co-operative efforts to build productivity and thereby improve job security in the lot of employees.
PN3413
Now, you see that critique?---Yes.
PN3414
Can I suggest to you that that is not an unfair description of the organising model that you have advanced and put forward not only in this article but in other public announcements by you?---No, I think it is unfair.
PN3415
Right?---I have disagreed with Stephen saying these kinds of things repeatedly and there is disagreement with it in the article that you have referred to. "Union renewal in Australia" review from the inside - sorry, "Down with the Dictator" if you go to page 14 on my copy: Building a relationship between equals. To the contrary, what I say there is, that unionism which is based around workplace and - sorry, the next sentence:
PN3416
Most employees like their jobs and want to do them free of the pressure that industrial activity brings. They want a good and harmonious relationship based on a recognition that both parties have a reasonable measure of power.
**** MICHAEL CROSBY XXN MR PARRY
PN3417
I will be, although I don't know, that in the first article you cite, "Union Renewal in Australia" I put similar points of view. Stephen continues to try and characterise what I am saying as the - his view of unionism and I am afraid I reject it.
PN3418
You disagree with him?---I do.
PN3419
Yes, over the page on page 137 of his commentary, he, under the heading "The limits of the delegate's strategy" he says:
PN3420
Union delegates are the key to the organising model.
PN3421
Now, is that a fair sentence in itself?---Yes.
PN3422
Yes, he goes on and then at the beginning of the next major paragraph he talks of the ideal that you describe, an activist or a delegate for every five to eight union members, a leadership of senior delegates who undergo formal training in bargaining, recruitment and representing employees. Is that an ideal that you describe?---Yes, but this - I am not sure where you have stopped there. Do you continue on: and for these shop floor activists?
PN3423
No, I have just gone to the first - I have just read the first sentence?---Then I agree with the first sentence.
PN3424
Right, what is an activist?---Somebody who is prepared to do something for the union.
PN3425
Right?---Delegates may be activists, they may be much more than activists but they are not often exactly the same person.
**** MICHAEL CROSBY XXN MR PARRY
PN3426
All right. Generally they would be but not invariably?---Well, it depends on the union. In some unions regrettably, if you are a delegate it is almost certain that you are not activist. Such is the decay of delegate structures. Certainly, the ideal would be that a delegate would be a co-ordinator of what goes on in the workplace and would go through a formal process of election. An activist need not.
PN3427
All right, now the - Mr Long goes on. He says:
PN3428
Under the organising model delegates are sufficiently skilled that they rarely need call on union officials or paid union organisers who are hence freed up for the task of organising non-union workplaces.
PN3429
Again, is that a fair summary of your model?---Not entirely, no. Let me just read it. You see, I don't think that delegates will ever be sufficiently skilled that they rarely need call on the services of a union official or a paid union organiser.
PN3430
Right?---The reality is that it is a change in the kind of work that the organiser does. Instead of an organiser doing things continually for the delegate their role has got to change to be one of supporting the delegate mentoring the delegate, getting them to take responsibility for the way in which the relationship with the manager is conducted. In some cases, it is going to be a more work intensive activity than the traditional system because the traditional system may be much quicker to deal with problems that arise in the workplace.
PN3431
Mr Long goes on, and says:
PN3432
And for these shop place activists it is not just a question of conducting an enterprise bargaining campaign every few years, organising never stops.
**** MICHAEL CROSBY XXN MR PARRY
PN3433
Again, is that a fair description of the ideal that you describe?---No, and in fact, if you go to those sections of the articles that you looked at, what I am after is a process of union recognition, co-operation with the employer so that you don't continually have disputes arising in the workplace. So that there is a very clear process of dealing with grievances that arise from members. Organising never stops, I suppose, is appropriate in the sense of delegates have got to keep representing workers to management. You have got to keep high levels of activists, people who are involved in the work of the union, but I don't think that it is reasonable, as I say in the article, to expect workers to be continually at war as Stephen tries to characterise it.
PN3434
Well, he goes on and says that doesn't he. He says:
PN3435
The on-going organising effort involves a process of mobilising workers around issues to maintain the active support of the membership.
PN3436
?---Yes.
PN3437
What this means in practice is that for no payment employees who represent their fellow workers are asked to engage in an ongoing confrontation with the employer.
PN3438
Do you accept that that is a fair description of your ideal?---Wel, I have already said it is not and it is something that I - every time I speak on a platform with him I remonstrate with him that that is not a fair characterisation of what we are saying.
PN3439
Yes?---I don't think that - well, perhaps in some industries workers will put up with that but most workers won't. What they want is to get on with their jobs. Again, as I say in the article.
**** MICHAEL CROSBY XXN MR PARRY
PN3440
Yes, it is fair to say that Mr Long continues to describe the model that you advance in the terms that he puts in his commentary and you continue to disagree with him?---Yes.
PN3441
Yes. Yes, I have nothing further, if the Commission pleases.
PN3442
PN3443
MR RICH: I have a few quick questions, Mr Crosby. You were asked some questions about organising recruitment and so on. Can I ask you, as far as you are concerned in the articles you have written and so on, is recruitment an end in itself?---No, absolutely not and it is why I never use the term. In my mind there is a clear distinction between recruitment and organising. If - I just don't think recruitment works. Recruitment has a connotation of selling something and it is very difficult to sell something like union voice or things like that. An organised workplace is a workplace where people have the confidence to speak on an open basis with their employer. That is the ideal that we are looking for.
PN3444
So what is organising then in that context?---A combination of and high levels of union membership but far more than that it is a union membership where workers have the confidence and ability to talk to their employer, raise issues that come up and have them settled at a time where the terms and conditions under which they work are being settled. An organised workplace is a workplace where member's concerns are fed directly into that process and they feel capable of negotiating an outcome.
PN3445
There were some questions put to you about your views about union renewal and so on?---Yes.
**** MICHAEL CROSBY RXN MR RICH
PN3446
Do you think those views affect or influence the opinions you have put in your statement here about adult training methods about the competencies required of union delegates?---No, the adult training methods are the means by which we do the work that we do. I think it is very difficult to argue with the efficacy of adult education techniques. Sorry, what was the other - the competencies?
PN3447
Yes?---Well, again there is the research in 1993 but again, I just think it is common sense. That is what a union delegate is going to need to be able to do their job.
PN3448
Thank you. Now, can I take you to the worker's on-line article?---Yes, sorry, I have lost it.
PN3449
It has got a picture of you on the front of it?---Yes, I remember the one. I have got it.
PN3450
Sorry, just bear with me for a second. I'm sorry, I can't find the point I trying to make there, I might try and return to that. You expressed some views about using your article which you were taken to about your views on union renewal and upon organising it. In your view is that based in part upon - well, I might rephrase the question. Is there a perceived benefit for the employer in the organising model as well?---I think I supplied a copy of some research, I think it is American research, which sought to work out what were the most productive workplaces and it was interesting that that gelled entirely with what we are trying to do with workplaces in Australia. What they found was that the most productive workplaces were highly unionised workplaces with high levels of employee voice, consultation with employees about the way the workplace is run and so on and the least productive enterprise were unionised workplaces where there were low levels of employee voice and very poor levels of communication. That both fits in with the problem unionised workplaces that, I think we have all come across in the past and with the successfully unionised workplaces in our history if workers have the confidence to say something about the way in which the place is run and about the way in which they are treated the thing works better. So, yes, you know, I think that there is a clear benefit if to productivity if workers are give voice and are given the confidence to talk to their employer on an open basis about the way in which they are treated.
**** MICHAEL CROSBY RXN MR RICH
PN3451
There are some articles here, I just want to confirm if these are the ones you just referred to. Are those the articles you were referring to?---Yes.
PN3452
I would like to tender those documents. I don't - they are the only copy that I have at the moment, I thought I had other copies but I don't. So I need to probably to get a photocopy for the Commission so that I can retain a copy myself. So by having had them identified by Mr Crosby, if I can take them back and then tender them may be at a later stage, that might be more appropriate. Is that acceptable?
PN3453
THE COMMISSIONER: Mr Parry?
PN3454
MR PARRY: I don't make any issue about when they are tendered.
PN3455
THE COMMISSIONER: Thank you.
PN3456
MR RICH: Thank you. Sir, I have found that point I was going to make in relation to the workers on-line article. On paragraph the second last page I think it is, you are referring there to how the union movement fixes the reduction in the training that is occurring in part because of the money taken out by the government and you refer to it trade union training and those sorts of things. Now, can I take it what - are you advocating there - sorry, I will rephrase my question. Are you advocating there a means by which unions take on board the organising model through their bargaining or is it a broader - sorry, or is it a more narrow proposition in relation to particular award entitlements. Does that question make sense?---I'm not quite sure what it means, sorry.
**** MICHAEL CROSBY RXN MR RICH
PN3457
That is okay, sorry?---So, well, what I'm talking about there is not simply an award entitlement to trade union training leave if that is what you are asking me. What I'm talking about is union education has got to go well beyond that. The point that I was taken to earlier about where and when it can be done is very much a third or fourth best option. You can get much better educational outcomes as we have seen over the years, by getting people together over a one or two day period where they can interact with each other, build up a relationship and do the work in the training room.
PN3458
Okay, that covers the point I was going to make. I don't have any further questions for Mr Crosby.
PN3459
PN3460
MR RICH: That concludes the evidence for the CPSU.
PN3461
THE COMMISSIONER: Thank you. Mr Parry.
PN3462
MR PARRY: If the Commission pleases. We have filed in accordance with your directions an outline of submissions of Telstra and also some witness statements. Now, the Commission would be fairly well familiar with the sort of propositions and issues that arise after the extensive proceedings that have gone on. I don't propose any particular opening of issues, given that you have an outline of submissions and various witness statements.
PN3463
THE COMMISSIONER: Yes.
PN3464
MR PARRY: And for present purposes our outline of submissions will stand as our opening.
PN3465
THE COMMISSIONER: Yes.
PN3466
MR PARRY: I note there's been some variations to the application and we will make appropriate submissions about those matters in due course, but if I could tender the outline of submissions?
PN3467
PN3468
MR PARRY: If I could then call Benjamin Wicks.
PN3469
MR RICH: Again Commissioner, I am ..... some objections to the contents of Mr Wicks' statement, I don't know if ..... deliveries.
PN3470
PN3471
THE COMMISSION: Could you state your full name and address?---Benjamin Rodney Wicks, 7 Herbert Street, Manly, 2095.
PN3472
THE COMMISSIONER: Please sit down, Mr Wicks. Now, Mr Rich?
PN3473
MR RICH: Thank you, Commissioner. Paragraph 19, to the extent that it is all heresy, it is documents that have been requested of people who have presumably requested of people below them and all that information is heresy, there's no evidence of the way in which it was gained by the people who eventually had to provide it. In relation to much of paragraph - there are two paragraph 20s, I think Mr Wicks says things about matters that occurred prior to his joining the company and put out in his direct knowledge, but I won't object to them on the basis that I think generally speaking there's no dispute about the occurrence of those matters.
PN3474
However, in relation to the second paragraph 20, which commences:
PN3475
These changes have caused Telstra to...
PN3476
I object to the first sentence there which refers to Telstra significantly modernising and reforming, we would say that those words - I mean, that is an opinion, Mr Wicks is not an expert on business structure or the effect of restructuring, it is an opinion which he is not qualified to give. In relation to the final dot point in that paragraph, which is over the page on page 6, it talks about the modernisation of the network. We object to that paragraph on the basis that it is an opinion that the work that was done enabled Telstra to reduce its work-force. The connection between the two propositions that have been put by Mr Wicks is an opinion which he is not qualified to express.
PN3477
In paragraph 21, the third last bullet point over the page on page 7, which commences:
PN3478
Committed scheduling in call centres...
PN3479
The opinion given there that committed scheduling ensures better management, again is an opinion which Mr Wicks is not qualified to make, it takes the whole bullet point there, which we say should not be allowed on the basis that it is an opinion. Paragraph 21, the first sentence is a submission, it is not evidence. Paragraph 22 - - -
PN3480
THE COMMISSIONER: There were two paragraphs 21s again?
PN3481
MR RICH: Sorry, I was referring to the second paragraph 21, which commences:
PN3482
As a consequence of these and many more changes...
PN3483
THE COMMISSIONER: Yes.
PN3484
MR RICH: Paragraph 22, the introductory words refer to the past 5 years, and again I note that Mr Wicks has only been employed with the company for the last 9 months or so, and he asserts there an opinion about the amount of complexity, which is stated as fact, and I object to that opinion, it is not relevant to be put by him, certainly. Again, in relation to a bullet point over the page, which is I think the fourth bullet point, commencing:
PN3485
There are now only four key enterprise bargaining agreements...
PN3486
The second sentence there:
PN3487
This agreement significantly simplifies the terms and conditions.
PN3488
That is in the form of a submission and it is certainly Mr Wicks' opinion in terms of the simplification, whether or not the number of agreements that might exist equates to simplifying. The second last bullet point there that commences:
PN3489
The disciplinary in the Appeals Board...
PN3490
The last sentence which refers to the effect of the removal of those disciplinary appeals and Commotions Appeal Board ..... from the award, states an opinion, and certainly in so far as Mr Wicks may seek to attest to the effect he wasn't employed by the company at the time and he is not qualified to express any opinion upon what the effect might have been at that time. Paragraph 23, we object to the whole paragraph on the basis that it is a submission, Mr Wicks' opinion there is not based upon any experience set out in his statement, certainly it is not clear that he has ever worked in the Public Service and his opinions on those matters are not relevant, he is certainly not qualified to express them.
PN3491
Paragraph 28 is all hearsay, there is no evidence as to how that information was compiled, there's information provided by payroll to Mr Wicks, there is no way of going behind information provided to determine the way in which it was collated. It is difficult to cross-examine on and his hearsay should not be allowed.
PN3492
THE COMMISSIONER: Why is it difficult to cross-examine.
PN3493
MR RICH: Because Mr Wicks is asserting that the information was obtained from pay roll from a third party and unless he can attest to the way in which it was collated by pay roll then - - -
PN3494
THE COMMISSIONER: And why aren't you entitled to ask that question?
PN3495
MR RICH: I can ask that question, your Honour, to the extent that he might be able to express his understanding.
PN3496
THE COMMISSIONER: Well, that is another matter, isn't it?
PN3497
MR RICH: That is true, that is true. In paragraph 29, the first sentence is expressed as fact. It is an opinion presumably based upon the - on the previous paragraph and the information contained therein but not expressed to be to the extent that it is an opinion, we object to it. Certainly, the second sentence, it is opinion which Mr Wicks is not qualified to make and should not be allowed.
PN3498
THE COMMISSIONER: The second sentence at paragraph 29?
PN3499
MR RICH: Yes.
PN3500
THE COMMISSIONER: Significantly no industrial action was taken.
PN3501
MR RICH: Sorry, the high levels of industrial action ended 1998.
PN3502
THE COMMISSIONER: I'm sorry. Yes.
PN3503
MR RICH: Paragraph 30, I object to the first two sentences of the paragraph. In the first sentence Mr - - -
PN3504
THE COMMISSIONER: There are only two sentence - no, there are three.
PN3505
MR RICH: There are three, yes. The first sentence Mr Wicks purports to express the first option for employees and to the extent that he seeks to express employees views, we say he is not qualified to do so. In the second sentence Mr Wicks attests to the reason for the formation of the fair treatment procedure. Mr Wicks wasn't employed by the company at the time. We say he is not qualified to express an opinion on the reasons for the establishment of the fair treatment procedure.
PN3506
THE COMMISSIONER: Yes.
PN3507
MR RICH: Paragraph 40, the last sentence, it is a broad statement with no - it is an opinion with no basis expressed and we object to it. Paragraph 41, the last sentence is a submission and we object to that sentence. Paragraph 44, again it is an opinion expressed but no basis is given for the opinion and we object to that paragraph. Similarly, paragraph 46, the last sentence, it is a generalisation, an opinion which refers to what he has been told without any indication of what he may have been told.
PN3508
THE COMMISSIONER: The last sentence?
PN3509
MR RICH: Yes.
PN3510
THE COMMISSIONER: Yes.
PN3511
MR RICH: Yes, and that is all.
PN3512
THE COMMISSIONER: Yes, Mr Parry?
PN3513
MR PARRY: If the Commission pleases, I'm making an assumption that when the Commission comes to deal with these various matters it will rule in a similar way that it has already ruled on a couple of occasions in these proceedings. The Commission will recall objections to Mr Evans statement regarding hearsay and opinion matters and the ruling on the first day was to the effect that hearsay does not necessarily at all demonstrate the truth of matters and any opinions may be of little weight. Now, we don't cavil with that ruling and we would ask that it be generally applied to the material that we have advanced. Now, that then leads to the particular detail of the matters and paragraph, I think the first objection was to paragraph 19 - - -
PN3514
THE COMMISSIONER: Yes.
PN3515
MR PARRY: - - - which was a hearsay objection. We say that the witness has identified where the information came from and the advice that was given to managers about the number of delegates. Now, it is hearsay, the basis of it is given, we say it is admissible. Paragraph 20, I think starts with - I'm not sure where the first objection was there, I didn't quite get a note of it.
PN3516
THE COMMISSIONER: It was to the conclusion that the changes have significantly modified and reformed the business - - -
PN3517
MR PARRY: That is on paragraph - - -
PN3518
THE COMMISSIONER: - - - as I recall, Mr Rich.
PN3519
MR RICH: Yes, that is correct.
PN3520
MR PARRY: That is the second paragraph 20.
PN3521
THE COMMISSIONER: The first paragraph, - second paragraph 20, I'm sorry. The first paragraph 20 was opinion.
PN3522
MR PARRY: Sorry the first paragraph 20 is opinion.
PN3523
THE COMMISSIONER: Yes.
PN3524
MR PARRY: Well, that is true, but I didn't think - because my notes said there wasn't particularly an objection to that. So I was dealing with the second paragraph 20.
PN3525
THE COMMISSIONER: Yes.
PN3526
MR PARRY:
PN3527
These changes have forced Telstra to significantly modernise and reform its business.
PN3528
Well, it is certainly an opinion. I'm not sure a lot of weight can attach to it. I'm not sure it takes the picture a long way. I think it is more a matter of putting matters in context, if the case concerned whether Telstra was modernising and reforming its business, it would be a different argument, but the case isn't about that, it is really an opinion, the Commission can look at it as a contextual matter and probably not give it a lot of weight. Now, there was an objection on page 6, as I understand, to the last dot point?
PN3529
THE COMMISSIONER: Yes.
PN3530
MR PARRY: In my submission, it is simply an opinion, again it falls in to the same category as my - the last point, that it might be given little weight by the Commission and really I think two paragraphs 21, the objections again are opinions. Now, I can't add a lot, they are opinions. They do describe events that have occurred within Telstra which I'm sure aren't in issue and effects that flow from them. I'm not sure they are issues of great significance. Perhaps the first sentence in the second paragraph 21:
PN3531
As a consequence of these and many more extensive changes Telstra managers are experienced in managing change.
PN3532
Well, that is an opinion, no doubt that Mr Wicks has formed from his observations of Telstra's managers and again it might be a matter of little weight, but in my submission it should be admitted. The next paragraph, I understand that there is a - first there was an issue about Mr Wicks not being there in the last 5 years. That is certainly correct, but the first dot point talks about the recision of numerous Telstra by-laws which governed a range of employment matters including the appointment of staff, promotional, leave arrangements, use of motor vehicles and outside employment. Now, again that to me does not appear to be a matter of great controversy. Now, it is a matter for the Commission, if the Commission does not admit it then I suppose we would have to prove that there has been a recision of by-laws by different means and that may well be a course we have to take, but it does not seem a matter of great controversy.
PN3533
That these matters are now covered in industrial awards and agreements or by policies and procedures again, does not appear a matter of controversy. If it is I imagine we would simply point at what is in the awards or agreements, but that is a matter for the Commission. The second dot point talks about the awards being simplified, again we say it is not a controversy. I'm not sure where the - if that has to be proved and then I imagine we will tender the original awards and count the number of pages and say there are less pages in simplified awards.
PN3534
MR RICH: Sir, may be if I could just clarify the objection to that paragraph? I wasn't objecting to each of the bullet points individually. I was objecting to, in particular, the opening words and the conclusion that there is less complexity and equally to particularly, I think, the fourth bullet point, which is the second bullet point across the page, the second sentence I referred to there as well as the second last bullet point and some words I referred to there.
PN3535
THE COMMISSIONER: Yes. Thank you, Mr Parry.
PN3536
MR PARRY: Well, I understand, if the Commission pleases, I don't rely in the first preamble where it says: which have led to less complexity. I don't rely on that, that can be deleted.
PN3537
THE COMMISSIONER: So the sentence would be:
PN3538
I'm aware that in the past 5 years there have been a number of changes to the industrial relations environment at Telstra. These changes are as follows.
PN3539
PN3540
MR PARRY: Yes. And over the page the second dot point has - they are about the four enterprise bargaining agreements and it said:
PN3541
These agreements significantly simplify the terms and conditions.
PN3542
Well, significantly is a loaded word, I don't rely on it, that can be deleted. The proposition that there is simplification, in my submission, is manifest, and it might be an opinion but it is one that we will be making submissions on in any event. Now, the next objection was the fourth dot point about the Disciplinary Appeal Board and the effect that Telstra was able to renegotiate policies for promotions. Now, I think what can be done there is, if I could have leave to simply ask Mr Wicks where promotions and performance and discipline are at present, that might be sufficient. I say it is admissible, but whatever view the Commission forms it might be assisted by Mr Wicks giving evidence about that particular matter in more detail.
PN3543
Now, paragraph 23 is an opinion. Well, it is a submission. I don't rely on it. I indicate I will be saying it at the end that it will be a submission. Paragraph 28, this is material of a summary of documents within Telstra. In my submission, it is admissible, I mean Mr Wicks can be asked about the structure of it and what those records indicate and, in my submission, that would be admissible in that form, not only in the Commission but in a Court, subject to the Evidence Act.
PN3544
Paragraph 29, well, with regard to paragraph 29 I will ask Mr Wicks in examination-in-chief what basis he has for saying that, and we it comes from. So I will ask a question about that of Mr Wicks. Now, paragraph 30, the first sentence where Mr Wicks said: the first option for them, and it is objected to on the basis that Mr Wicks is expressing the employees' views. We don't rely on the use of the phrase "the first option" for demonstrating the views of employees. The second, about the establishment of the fair treatment procedure - - -
PN3545
THE COMMISSIONER: Could I just interrupt you there?
PN3546
MR PARRY: Yes.
PN3547
THE COMMISSIONER: It is not a question of you not relying on that proposition, it does not seem to embrace the proposition, does it?
PN3548
MR PARRY: No, it does not. I'm sorry, yes, the Commission puts it better than I do. It does not say that, I was sort of dealing with the assumption that it was thought that it did say that and we are saying: if you think it says that, we are not going to say it says that.
PN3549
THE COMMISSIONER: No.
PN3550
MR PARRY: If I can put it as clearly as that.
PN3551
THE COMMISSIONER: I didn't read it that way.
PN3552
MR PARRY: Now, the fair treatment procedure is referred to there. In a way, the second sentence about the fair treatment procedure was established, to formally resolve complaints or grievances, is really an opinion which does not take the Commission much further than what is actually in the documents themselves, with regard to the fair treatment process, really it is not going to advance the case a lot, but that is a matter of weight for the Commission. I think the next objection was to paragraph 40, well, it is an objection to the last sentence.
PN3553
THE COMMISSIONER: At paragraph 41, I thought was the objection to the last sentence.
PN3554
MR PARRY: I think there was an objection to the last paragraph of 40, as well.
PN3555
THE COMMISSIONER: I see.
PN3556
MR RICH: Yes.
PN3557
MR PARRY: It is an opinion, clearly it is an opinion based on hearsay, but it is a view that Telstra has through Mr Wicks as to when the fair treatment procedure is used. It is, in my submission, it is an opinion, it can be given whatever weight the Commission so desires. There is also an objection to the final sentence in paragraph 41, no doubt that is an opinion of Mr Wick, it simply again falls in to the category of the ruling that is made by the Commission, and it may be an opinion of which weight, we can make submissions about the weight that can be given to views that Mr Wicks ultimate hold.
PN3558
THE COMMISSIONER: Does it not also go in to the area of the relief that is sought? An opinion as to the relief?
PN3559
MR PARRY: There's been a lot of evidence on that, yes, and I suppose me adding to it. I don't think a lot turns on it.
PN3560
THE COMMISSIONER: No.
PN3561
MR PARRY: I don't think a lot turns on it.
PN3562
THE COMMISSIONER: Thank you.
PN3563
MR PARRY: And I don't think it will be the central theme of our submissions at the end of the day, it is really a matter for the Commission.
PN3564
THE COMMISSIONER: Thank you.
PN3565
MR PARRY: Paragraph 44 is really just argumentative. If I was looking at it from the other side I would simply say it goes nowhere. It just disagrees - it is I think Mr Evans saying one thing that I objected to. He said it wasn't operating effectively and Mr Wick's disagrees with that.
PN3566
THE COMMISSIONER: Yes.
PN3567
MR PARRY: So really I don't think that is going to help you either way. But I still say it should be there. I'm not saying it should be taken out.
PN3568
THE COMMISSIONER: Yes.
PN3569
MR PARRY: And 46, again this is the sort of argumentative material that we are in. I don't like to defend it because it is not really of any help to you. But if people are asserting on the other side things then we should be able to say we don't agree, if the Commission pleases.
PN3570
THE COMMISSIONER: Thank you, Mr Parry. I will just adjourn for five minutes to consider this matter.
SHORT ADJOURNMENT [12.08pm]
RESUMED [12.13pm]
PN3571
THE COMMISSIONER: In addition to the deletions agreed to by Mr Parry I will not admit paragraph 23 and the last sentence of paragraph 41. Thank you, Mr Parry.
PN3572
PN3573
MR PARRY: Mr Wicks, do you have a copy of your statement before you?---I do.
PN3574
Do you have a copy of the attachments before you?---Yes, I do.
PN3575
You have been in the Commission, in the witness box, when there was debate about paragraph 22 of your statement on page 8?---Yes.
PN3576
You might recall that I was making submissions to the Commission about promotions and performance and discipline and there's reference in that to policies for promotion and performance and discipline and come to arrangements which were both simplified and readily accessible. Now, what is the position with regard to promotions and performance and discipline? Are there policies in respect of them?---I'm not aware of a policy directly with respect to promotions, however, it's governed by Telstra's policy on its values and any grievances with respect to promotions are dealt with under the fair treatment process. In respect to discipline and performance Telstra has what's called the Code of Conduct policy and also what's referred to as the PICM process which is performance, improvement and conduct management.
PN3577
I see. In paragraph 29 you are there dealing with:
PN3578
There has been no time lost due to industrial accidents since July 1999.
PN3579
Where does your information for making that statement come from?---As I recall I had two discussions. One with Mr Stewart O'Keeffe, who has been an industrial manager at Telstra for many years, and the other one was with Mr Ian Lane, both of whom advised me that in their recollection there'd been no industrial action since that time.
PN3580
You have been in the Commission and you have heard Mr Evans speak of industrial action in respect of Mr Spicer. Are you aware of industrial action taken in respect of Mr Spicer and what occurred in Ballarat?---No, I'm not.
**** BENJAMIN RODNEY WICKS XN MR PARRY
PN3581
Now, subject to those matters is your statement true and correct? I'm sorry, I think there was a spreadsheet you wanted to - - -?---Yes, BW2.
PN3582
BW2, sorry. Now, if you go to BW2, you prepared another spreadsheet?---Yes.
PN3583
The spreadsheet that has been prepared replaces the one that is there?---Yes.
PN3584
If I could hand that up to the Commission. I think that is intended to replace the document.
PN3585
THE COMMISSIONER: Yes.
PN3586
MR PARRY: Now, what is the difference between the document I've just handed you which replaces the existing BW2 and why have you changed it?---I don't actually have a copy of the replacement. The only part that I've changed is under the column: Designation. In the original exhibit the designation AOFF was a single designation with 4569 staff. In my subsequent exhibit I've split that designation into AOFF levels 1 to 3 and AOFF levels 4 to 6. The reason why I did that was that I became aware that the CPU only had coverage of levels AOFF 1 to 3 and so as a consequence levels 4 to 6 of AOFF are, as I am aware, exclusively covered by the CPSU.
PN3587
Right. Now, in your original statement, in paragraph 45, you refer to the number of examples of incidents that Mr Evans referred to which he alleged arose due to the CPSU not being able to train its delegates and "In the time available Telstra has been unable to fully investigate each of these examples. We are attempting to do so." What did you do to investigate those examples?---When I became aware of the managers who had been involved in the incident, I telephoned some of them and I explained to them the nature of the proceedings. I read out the statement from - Mr Evans statement or the paragraph relating to the incident from Mr Evans' statement. I then got from them a response as to the statement made and also advice as to what they understood occurred and then I made notes of those conversations.
**** BENJAMIN RODNEY WICKS XN MR PARRY
PN3588
Have you summarised those notes in a document form?---Yes, I have.
PN3589
Yes, if I could hand you this document. Now, is that the document you have prepared as you have described?---Yes.
PN3590
If the Commission pleases, I indicate what this contains is as Mr Wicks has described it. The Commission will recall in cross-examination of Mr Evans and Ms Shirley and Ms Cherry I put my instructions with regard to those matters to the witnesses. Now, what we have done here is produce a document which is essentially, I say, what I've put to witnesses in respect of these matters. So I've described that for the assistance of Mr Rich. I tender that document.
PN3591
THE COMMISSIONER: Do you want, as a matter of identification - I have not yet marked Mr Wicks' statement. I was wondering whether we could refer to this document as BW7, paragraph 45.
PN3592
MR PARRY: Yes.
PN3593
THE COMMISSIONER: And append it to the statement.
PN3594
MR PARRY: That would be a more satisfactory way of dealing with the document because it certainly does form and flow from the statement.
PN3595
MR RICH: Commissioner, I wish to object to this evidence. Mr Evans' statement was filed three days after the date on which the directions indicate it should have been. Further detail was then provided on each of the instances on 12 April, which is six weeks ago now, to Mr Wicks ..... probably responded to it. I understand that Mr Parry says that he put the substance of this evidence to Mr Evans when he was available in the stand. However, given the nature of his evidence, the opportunity for him to consult with the individuals whom he originally received the evidence from, would have been allowed had the evidence been properly filed in accordance with the directions or at least given to the union at some stage prior to the hearing.
**** BENJAMIN RODNEY WICKS XN MR PARRY
PN3596
THE COMMISSIONER: I thought that a lot of this arose out of you further questioning Mr Evans on particular issues and not dealing with generalities. Some of these matters arose from questioning on the day, didn't it, rather than covered in his earlier statement with great particularity.
PN3597
MR RICH: So my understanding was that this was a response to each paragraph of Mr Evans' statement - paragraph 29, paragraph 33 - you will see there it responds directly to Mr Evans' first statement. I understand there may have been some delay given that there was somebody to contact these individuals who, as I've said, six weeks has passed, there's been no indication of any further detail forthcoming except for that two lines in Mr Wicks' initial statement. That puts us at a significant disadvantage in terms of being able to respond to this. On that basis we say it simply shouldn't be accepted by the Commission.
PN3598
THE COMMISSIONER: Mr Parry.
PN3599
MR PARRY: Well, this objection would certainly have a bit more weight if we hadn't gone through the rather detailed process of putting these matters to Mr Evans. Need to go back a couple of steps - taken back a couple of steps. The assertion that somehow these matters were all put in Mr Evans' statement at the beginning of April or thereabouts and then just left there needs a bit more explanation. The Commission may well be aware of correspondence and requests to identify these matters. Many of the matters identified by Mr Evans in his statement are almost impossible to work out where they occurred and in the context they occurred and the persons involved. In fact, very rarely do the examples given in Mr Evans' statement identify people.
PN3600
So therefore there was a range of correspondence that went on and documents were sought and this document - these documents and notifications were still being received in the week before the hearing commenced. Now, in those circumstances, as the document here indicates, Mr Wicks made contact with various managers and asked for their versions. Now, we believe and we have submitted that this evidence, in very large part, is hearsay and we objected
**** BENJAMIN RODNEY WICKS XN MR PARRY
strongly on the first day the material of Mr Evans' being put in. We said it shouldn't be admitted by the Commission, that it is all hearsay and he was really simply relying, for a very large part, on what he has been told by other people.
PN3601
Now, the Commission overruled that objection and admitted the material on certain terms. Now, in those circumstances, we were then in a position where we had or in the position of obtaining these instructions and we took Mr Evans to the detail of each of them and that is my obligation as counsel, to raise these matters with him, to give him the opportunity to comment. Mr Evans has commented to the best of his ability. He knew about some of the matters and not about others. I spent much of the Monday before last and the Tuesday before last going through this particular detail about the - just with the first one: I told him that Mr Chandler said he knew nothing about it and was dumbfounded.
PN3602
He said, well, I don't know about that. That is the evidence on that matter. We have got Mr Wicks having spoken to Mr Chandler who said he is dumbfounded by it and Mr Evans saying he does not know anything about that. The second matter, I took Mr Evans to the detail of this claim for a renovation allowance and put these matters to him. There is no unfairness here. The CPSU have been well aware of the detail of these matters. They have been put, with names, to Mr Evans and they have had the opportunity to comment on these matters and in my submission it is appropriate we put this material before the Commission. If the Commission please.
PN3603
MR RICH: If I can just assist the Commission. Mr Parry made some comments about the exchange of information prior to this hearing. I would just like to hand up a letter which indicates the CPSU - two letters maybe in terms of the timing so that the Commission has all the facts before it. Two faxes sent to the Commission - admittedly one aspect of the detail wasn't faxed until 3 May however, all the other information in relation to the individuals involved in each incident, the managers, the times and where possible the places and so on, were faxed to Telstra on 12 April so it is untrue to say there was - to say that it was true there was still information being exchanged just prior to the hearing is also true but 99 per cent of the information was exchanged some 6 weeks ago.
**** BENJAMIN RODNEY WICKS XN MR PARRY
PN3604
PN3605
THE COMMISSIONER: I will allow the admission of the document handed up by Mr Parry which will form part of Mr Wick's statement.
PN3606
MR PARRY: If the Commission pleases, there was an exhibit marked for identification, being W9. If I could hand a copy of exhibit W9 to Mr Wicks and ask him to identify it.
PN3607
Have you seen this document before, Mr Wicks?---Yes, I have.
PN3608
Can you tell us what that document is?---This document is a collection of documents from a file kept by Ms Ethel Turner, a manager at Telstra, in relation to a matter to do with an employee, Mr Gary marshall.
PN3609
When did you come into possession of that?---When I spoke to Ms Turner she indicated that she had documentation. I spoke to our solicitors who then sourced the documentation from Ms Turner and I saw this documentation during the course of these proceedings.
PN3610
I note the Commission has given it an exhibit number - - -
PN3611
**** BENJAMIN RODNEY WICKS XN MR PARRY
PN3612
MR PARRY: Now, there is another document that I would like to hand to you, Mr Wicks. It is marked exhibit W17. I hand to Mr Wicks a copy of W17. What is exhibit W17, Mr Wicks?---It is a print out or a screen print of Telstra's Intranet which is the Intranet system available to employees within Telstra.
PN3613
How current is that, to your understanding?---I actually recall the little Melbourne Storm motive on it and as I recall that came out - was current around about 2 weeks ago.
PN3614
If the Commission pleases, the Commission will recall there was some - witnesses were not certain about that document. I note that it has been given an exhibit number.
PN3615
Mr Wicks, you were in the Commission, I think, on the first day when - - -
PN3616
THE COMMISSIONER: Do you want me to mark Mr Wicks' statements at this stage?
PN3617
MR PARRY: I am sorry.
PN3618
THE WITNESS; Mr Parry, there was just one spelling error.
PN3619
THE COMMISSIONER: One other amendment?
PN3620
MR PARRY: What was that, Mr Wicks?---In paragraph 16, the word "rolls" is there when it should be r-o-l-e-s.
PN3621
Yes, does the Commission have that?
**** BENJAMIN RODNEY WICKS XN MR PARRY
PN3622
THE COMMISSIONER: Yes, thank you.
PN3623
MR PARRY: Yes. Subject to that amendment, Mr Wicks, is that statement true and correct?
PN3624
PN3625
MR PARRY: Now, Mr Wicks, you were in the Commission, I think, the first day, when Mr Evans was giving evidence about the practices with regard to the notification of delegates by the CPSU to Telstra and Mr Evans gave evidence about processes that the CPSU follow with regard to letters to Telstra regarding who have been appointed delegates. Now, are you aware of any practice followed by the CPSU in respect of notifying Telstra as to who have been appointed delegates?---I am.
PN3626
What is that practice that you are aware of?---I first became aware of it when Mr Evans spoke of it and then late last week Telstra received a number of letters from the CPSU indicating the names of delegates in certain areas.
PN3627
Before receiving those letters, were you aware of any other practice of sending letters from the CPSU to Telstra?---No.
PN3628
Now, your statement refers to, in part, disciplinary proceedings and disciplinary processes and you have given evidence to the Commission about PICM, how does PICM relate to the disputes procedure in the award? Disciplinary, perhaps to put it more fairly, are disciplinary matters progressed through the disputes procedure in the award?---Not to my knowledge, no.
**** BENJAMIN RODNEY WICKS XN MR PARRY
PN3629
Redundancy disputes, are they progressed through that?---The AOTC Redundancy Agreement 1993 has its own disputes procedure in relation to redundancy matters so no.
PN3630
What about - turn to the fair treatment process. Some of the hearsay evidence or some of the evidence that has been put before the Commission by Mr Evans has within it the words "managers forcing employees to use the fair treatment process." Do you have any knowledge of managers forcing employees to use the fair treatment process?---No.
PN3631
Now, Mr Evans' second statement refers to your first statement and the first paragraph, 21, commencing page 6 of your statement. Mr Evans says that you referred to changes that affected staffing levels in Telstra. he says:
PN3632
The first five bullet points in this paragraph do not relate to work performed by employees within CPSU's area of coverage only the matters raised in the last four bullet points in paragraph 21 affect CPSU members.
PN3633
What do you say to that assertion by Mr Evans?---In relation to the first dot point, which involves the split of consumer and commercial, there was also a split in relation to that business unit whereby the retail functions moved to our retail business unit. A significant number of staff who moved to retail in that restructure were in positions covered by the CPSU award. In relation to the work - the second dot point, where the work management structure was simplified, also there were clerical roles within that part of the business which again were covered by the CPSU award. In the third dot point, the movement of Telstra business solutions, which was the other part of consumer-commercial, from retail to consumer-commercial to form service edge, also involved staff who were covered by the CPSU award. In respect to the fourth dot point, the work management and activation centres, I am advised there were significant demarcation issues involved in that matter because the CPSU also had members in those areas. In respect to the fifth dot point, which is about director, I would concede that largely relates to CPSU covered roles.
**** BENJAMIN RODNEY WICKS XN MR PARRY
PN3634
Now, Mr Evans' second statement also, in paragraph 11, refers to the fair treatment procedure and it's use in EEO matters, for example, sexual harassment and equal opportunity matters. What is the position at Telstra with regard to the use of the fair treatment processes in such cases?---At present the fair treatment process excludes EEO matters and matters of sexual discrimination. Prior to - around the end of the year 2000, those matters were included in the process. However, as a consequence of a review of the fair treatment process by the company, they were removed.
PN3635
THE COMMISSIONER: Can I see that on the document? Any indication at all, Mr Wicks?---Commissioner - - -
PN3636
In the matter you have attached the fair treatment process as BW1?---I think it's - the existing policy only excludes disciplinary matters, however, there's a question and answer part of the policy which has been changed to exclude EEO and sexual discrimination.
PN3637
Yes, question 3 on frequent hours. So the only exclusions are: dismissals, sexual harassment and equal opportunity issues, thank you.
PN3638
MR PARRY: Now, finally, does the use, on your understanding of the fair treatment process, preclude an employee utilising the dispute settlement procedure?---The dispute settlement procedure under the - - -
PN3639
In the award, yes?---In the award. I've not actually had to deal with that specific issue because most disputes are raised under the enterprise agreement. Telstra's position would be that it has a strong preference that staff utilise the company's internal processes, such as the fair treatment process rather then the disputes procedure and - so as a consequence we haven't had to deal with it. If staff wish to use the fair - the disputes procedure under the award it would be our practice that we would allow that to occur and would be willing to submit conciliation in respect to it. However, in terms of what the award actually says and allows, I don't have a view on that.
**** BENJAMIN RODNEY WICKS XN MR PARRY
PN3640
There was one other, I think, slight uncertainty about an exhibit and it was exhibit W19, about the flexitime policy and I'm not sure it has absolutely been properly identified by a witness that I handed it to, so if I could hand a copy of exhibit W19 to Mr Wicks and ask if he has seen it before?---Yes, I have.
PN3641
What is it?---This is an excerpt from the Telstra intranet of a document that outlines the company's flexible working hours and 9-day-fortnight schemes.
PN3642
Yes, if the Commissioner pleases, that is the evidence of Mr Wicks.
PN3643
THE COMMISSIONER: Thank you. Does 2.15 suit you?
PN3644
MR RICH: Yes, Commissioner.
PN3645
PN3646
THE COMMISSIONER: Yes, Mr Rich?
PN3647
MR RICH: Mr Wicks, can I take it from your statement that you have only been employed with Telstra for 9 months, is that right?---Yes.
PN3648
Okay, and prior to that you worked, you say, as contractor services, so is it right when I say you worked for Freehills, is that right?---Yes.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3649
You talk about all of the changes that have been taking place at Telstra recently, you talk about the members of staff that have been in the last couple of years. Am I right when I say that that includes managers as well as - I mean, it includes staff of all levels of management as well as - - - ?---Yes.
PN3650
- - - on management staff? Okay. Can I get a feeling for the way that the management structure works, how does the structure works, I understand there's level 1 managers and then there's - how does that all work, what is the structure of management?---Broadly speaking, there are six levels within Telstra, level 1 being the most senior levels of management, level 6 being essentially the award covered operation staff. Within level 6, however, there are a number of different levels or bands and different designations covering the staff in those levels.
PN3651
Okay, so management moving into level 5, is that - - - ?---Yes.
PN3652
Right?---Although, sorry, may I correct myself. We also have team leaders at level 6.
PN3653
Okay, and across all the different levels, how do you define between the different levels, is it the level of management responsibility that people have or - - - ?---I don't personally have a lot of knowledge in that area. I understand that within level 6 there - if we're talking about award staff, there are job - job descriptions that form - or called: job descriptions that form part of the enterprise agreements and then are job descriptions which go with those, called: job descriptions, for particular roles. In terms of management roles, again I don't have a great deal of experience with it but I understand that there are different types of roles that fit within the levels, depending on what the manager actually does.
PN3654
So, broadly speaking, in terms of the managerial responsibility the manager may have, they will be a level 5 or a level 6, depending upon how many people they might manage?---I'm not sure if it's how many they might manage. We also - again, I'm not - I'm not sure on how - how managers fit into particular levels, whether they're a level 4 or a level 4 because we have incidents where we have level 4s reporting to level 4s, for example.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3655
Right, okay. So it is a reasonably complicated system then, the way it works?---In management?
PN3656
Well, all levels, you talked about level 6 as well and talked about the core job descriptions, the job descriptions?---I think there's - I think there's about 75 EA type designations, and obviously 1 to 5 or 1 to 6 for management, so I think for an organisation the size of Telstra it's probably understandable that there would be a number of levels.
PN3657
Can I take you to paragraph 19 of your statement. You made the request there from the Human Resources general managers, what level of management do they have in the structure you have just described?---They're level 3.
PN3658
Level 3, so they are reasonably high up?---Yes.
PN3659
So level 1 would Mr ..... ?---I actually think he might be - - -
PN3660
Level 0, isn't he?---Yes, level 0 effectively and I think his - - -
PN3661
THE COMMISSIONER: Not elsewhere classified.
PN3662
MR RICH: Right?---I think he's senior team, level 1 and some level 2s.
PN3663
So you wouldn't expect that these Human Resources general managers would have direct contact with the front-line staff, I mean, they are not directly managing the front-line staff?---No.
PN3664
No, okay. So you wouldn't expect that they would have direct knowledge of who the CPSU delegates might be?---No.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3665
Do you know what process they have then gone through to identify who the delegates are?---Yes, I understand that they have a number of direct reports, Human Resources managers and they inquired of their direct reports.
PN3666
And the direct reports then required of their direct reports?---Some of them have Human Resource managers who report to them, others don't. Those managers would have direct interaction with the business and the operations' managers in the business.
PN3667
So this is a level?---These would be level 4s.
PN3668
4s?---Possibly 5s.
PN3669
Right, okay. How do you say that they know who the CPSU delegates are?---They would have made inquiries of the operations' managers in their areas, their portfolios.
PN3670
So now we are talking level 5s?---Yes.
PN3671
Okay, so we are going through the level 3s to level 4s to level 5s, they are now making direct inquiries of people in their areas?---Yes.
PN3672
So we are getting a bit remote now from yourself but do you know how they then at the bottom level knew who were delegates and who weren't?---I understand they asked - the question that was asked of the managers was:
PN3673
Do you know who is the delegate in your area and are you aware of them?
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3674
Right, so some managers were - and obviously some - because you have got some numbers here. Now, I understood that some of the evidence that was being led was that there was no process in place by which Telstra was notified, but obviously Telstra is aware of a number of the delegates - - - ?---Yes.
PN3675
- - - by people, no doubt, identifying themselves as managers, that sort of thing?---Yes.
PN3676
Do you know whether or not these managers interacted with other union members who might not have been delegates, but who you know said things on behalf of staff on occasions? Did you know what this list comprises? Are they formally elected delegates, are they distributors, I mean, do you know?---My understanding of the list is the business unit's understanding of who are the CPSU delegates.
PN3677
And how is it that you understand the term "delegate" ?---That is somebody who is there to represent the employees on behalf of the union.
PN3678
Right, and on these occasions that you have listed here, some 80 or so occasions, managers have been able to directly identify particular people?---I'm sorry, on what occasions.
PN3679
I'm sorry, on the occasions that you have listed in paragraph 19?---The numbers of delegates?
PN3680
Yes, yes, so they have been directly identified by - - - ?---They're actually people, not incidents.
PN3681
Yes, I know, but those are people, those 80-odd?---Yes, in my - yes.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3682
Okay. Paragraph 20, where you talk about the "turnover" again. I would just like to get a feeling for - how many managers are there in Telstra? Are there many managers in Telstra?---This would be a very rough estimate.
PN3683
Yes?---I would think between 2500 and 3000, excluding Level 6 managers, or team leaders of which - again, this is very rough, but I would imagine 4000 to 5000.
PN3684
That is of a total staff you say of about 30 - 35, or thereabouts?---Of 35,000.
PN3685
Okay. Okay, so that is about a bit less than 10 per cent of what the total staff are, sort of Level 5 and above managers. So in terms of the number of people who are leaving the company and of those 10,000 positions you have got a reasonable number of those as managers then? You have got sort of 1000 of those, let's say - - - ?---Yes - - -
PN3686
- - - who are managers who are leaving the company?---Yes. I would - if it is possible I would like to check those numbers because - - -
PN3687
But you just indicated that they are rough estimates but they are based upon your experience?---They're my rough estimates, yes.
PN3688
They are the sort of numbers that you think might be - - - ?---I can get exact numbers.
PN3689
Okay, well, you can provide those later if you wish. Now, in addition to the positions that are being - that are leaving the company, the 10,000 that you indicate in paragraph 20 there - is there also - are those positions that are being lost, or are they people that are being lost? Maybe I can clarify it to explain it, I'm saying, is there additional turnover to the - - - ?---As in attrition?
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3690
The 10,000 that are leaving the company, that is bodies, or that is positions that no longer exist?---Which 10,000?
PN3691
Sorry, paragraph 20, your fourth bullet point you are talking about the - in March 2000, the announcement that was made?---Okay, the Next Generation Cost Reduction Program.
PN3692
Yes, and all that?---Yes.
PN3693
So that is 10,000 positions, or 10,000 people or - - - ?---I don't know.
PN3694
You don't know?---I don't know.
PN3695
I just want to get it fairly clear the amount of turnover that there is?---Sure.
PN3696
We have got 10,000 people that are leaving the company here in this paragraph. What do you say - I mean, do you know what the turnover in the company is?---In terms of employee numbers?
PN3697
Yes?---No.
PN3698
So you don't know whether it is high, or low or - - - ?---No.
PN3699
Now, of those - you have said about 2500 to 3000 Level 5 and above managers, those are the people who are involved in the dispute settlement procedure under the Fair Treatment Process, is that right?---In actually reviewing - engaged in the steps of the fair treatment?
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3700
Yes?---Yes.
PN3701
In terms of the Fair Treatment Process and the steps involved, is it correct to say that there is - that under the Fair Treatment Process, the first step is - it is required under the policy that before you go and institute a Fair Treatment Application, you first make an informal approach to your manager is that right?---Yes.
PN3702
Then, once you have done that, then you go and make a formal application to the same manager to review the decision?---Yes.
PN3703
So you have made - - - ?---Sorry, if I could just clarify. If your direct manager is a Level 6, then, you may have an informal discussion with your direct manager who is a Level 6, however, a Level 5 manager will carry out the first step of the Fair Treatment Review Process, so not on all occasions will the informal reviewer be also the first reviewer.
PN3704
But in most cases that would be the way it works though?---No, the Fair Treatment Process was essentially put together with Level 6 managers, or Level 6 team leaders as being the primary decision-maker, and then the first reviewer being the Level 5 manager.
PN3705
Okay?---And as I said earlier there is some 5000 or so, I think, Level 6s.
PN3706
Right, okay. The way the Fair Treatment Process works, it applies to grievances that arise, including grievances under the award, is that right?---It certainly is available to staff who may have individual grievances, which include matters that may arise under the award, yes.
PN3707
Okay, so the policy the way it works is that if you have a grievance, if it is an individual grievance then you have to work the Fair Treatment Process, is that right?---It's certainly Telstra's preference - - -
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3708
It is Telstra's policy, is that right?---It really depends on which award, or agreement that the grievance comes under.
PN3709
So are you saying it is not in Telstra's policy that individual agreements should be resolved through the Fair Treatment Process?---It's Telstra's preference that they be resolved in that manner and that - - -
PN3710
And does Telstra go about indicating its preference, if you like?---Well, it's written in the policy that Telstra - - -
PN3711
Right, so the policy says that this is what you do for individual agreements?---I'll just - if you'll excuse me, I'll just check - I just want to check because I'm not sure that the Fair Treatment Policy specifically says to a staff member that: they must use it for individual grievances, and just flicking through it, it does not seem to say that.
PN3712
Sorry, I'm just trying to find it myself because I know they are ..... just bear with me for a moment. I have a copy of this document, maybe if I can hand it up to you. It was provided to me by Telstra. It is headed: Dispute Avoidance Resolution, Table of Contents?---Thanks.
PN3713
Is that a policy of Telstra?---Yes, it's current - it's on our current Internet.
PN3714
Okay, and what does that indicate about the way that - well, I had better put it this way - that policy indicates, does not it, that individual grievances are pursued through the Fair Treatment Process and collective, if you like, grievances are pursued through the EA process, is that right?---It says in the third paragraph:
PN3715
In relation to dispute avoidance resolution. It covers disputes with groups of staff, as opposed to individuals. Disputes involving an individual staff member follow Telstra's Fair Treatment Review, rather than this procedure.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3716
Right?---I just add though, this is the disputes procedure under the enterprise agreements.
PN3717
Yes, so it indicates that for the enterprise agreements there is collective - - - ?---Yes.
PN3718
Sorry, the enterprise agreement is for collective disputes and then for individual disputes use the Fair Treatment Process?---My understanding is that the enterprise agreements that were obviously agreed between the parties provided that it applied to grievances put by employees, rather than an individual employee.
PN3719
Okay, but I'm just trying to clarify though, in terms of Telstra policy, if you have an individual grievance you go to the Fair Treatment Process. If you have a collective grievance or, you know, a grievance involving more than one person, you say you go to the EA?---In respect to the enterprise agreement disputes procedure, yes.
PN3720
Yes, okay. Does the Fair Treatment Policy deal with representation at all?---The policy did for some time have a paragraph that dealt with representation. We've actually only - we've actually just transferred our policies to a new system and that paragraph appears to be missing and we're currently involved in putting it back, but I can indicate to you what it said.
PN3721
What did it used to say?---It said that and I'm - obviously these aren't the exact words - but it said that: employees under the Fair Treatment Process could have someone assist them and that person was not there to carry out the role of an advocate, but was to assist the person, take notes, observe and give them counsel as to the case they were putting. However, the stated purpose of the Fair Treatment Process is a process for the employee to present their grievance to management and for the parties to try and resolve it.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3722
Is that at all levels of Fair Treatment Process at all review stages?---Yes.
PN3723
So there is nothing in the current policy that has been provided to the union, or that is in the documents that you have in front of you about representation?---No, it's not there.
PN3724
That has been the case for how long?---We transferred to a new Internet system - it's been - it's a - it's obviously not something that happens immediately. I think the transitioning started probably 5 or 6 months ago.
PN3725
The position is then, if I can clarify it then that for - in terms of representation you are allowed to have someone with you who is allowed to be an observer and not allowed to speak on your behalf - not that they represent you as such?---That's correct, under the Fair Treatment Policy there is not a role for an advocate.
PN3726
So in circumstances then when union representatives seek to represent their member in a Fair Treatment Process-type review, what, they will be told: their role is not to speak, to sit down and be quiet and they can assist, but they can't say anything, is that the way it works?---I don't personally have direct experience with applying the Fair Treatment Process.
PN3727
Is that the intention of the policy that you are saying?---The intention of the policy would be that the manager would advise the employee that the purpose of the Fair Treatment Process is to enable them to present their grievance to the and, as such, the policy is one where the employee and the management discuss the grievance and go through it. Management would then explain to the employee that they are more than welcome to have someone assist them in doing so. However, it is the employee's primary responsibility to discuss the matters directly with the management.
PN3728
Okay. So the answer then is, yes, that that would be - that what would occur would be that they would be told that they couldn't represent them. Okay. So then does Telstra recognise that there is role for the union in the dispute settlement procedure under the award?---Yes.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3729
Does Telstra recognise a duty to advise employees of their award rights?---Yes, and Telstra has the documents contained on the Internet freely available to all staff.
PN3730
Yes. In your view, do you think Telstra is under a duty to follow the award process it has mandated in terms of dispute settlement under the award?---Yes.
PN3731
Do you see any conflict of procedure between the Fair Treatment Process and the award?---Again, as I said earlier, we are dealing with different types of disputes procedures, whether it is the redundancy agreement, the enterprise agreement, or the award. I flicked through the examples that were presented in Mr Evans' statement and other witnesses and I can't recollect actually dealing with this issue with respect to this CPSU award so - - -
PN3732
Can I just clarify the provision in the award. Are you aware that the award provides that if there is a dispute arising in the workplace about the application of the award, then, employees and their managers meet and confer about the issue and then if it is not resolved, then, it goes to further discussions between employees and watching and observation of management, where employees may have representatives involved which is, broadly speaking, what happens under the Fair Treatment Process in that you have an initial discussion and then it goes to higher level management. Sorry, you are nodding, so that is a "yes", I assume?---Yes.
PN3733
Yes. So the difference being that if it has progressed under the Fair Treatment Process, at the second point - at the second stage there is no representation allowed, there is only observation allowed as you were saying before, is that right?---Yes.
PN3734
So if someone tries to exercise their rights under the award they will be told that the process for individual grievance is Fair Treatment Process, is that right, because that is Telstra's policy as you said before?---What they're told is that: it is Telstra's preference that the Fair Treatment Process - - -
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3735
They are not told it is Telstra's policy?---No - well, in my experience with dealing with this issue which is - again, I haven't dealt with under this particular disputes procedure that you're raising. The words that I've always used is that, "It is Telstra's preference", and on other occasions I've used the words, "It's Telstra's strong preference that employees use the Fair Treatment Process for individual grievances".
PN3736
How do managers work out what process what - how to advise their employees about processes to follow? Do they go to Telstra's policies?---Certainly.
PN3737
Okay, and they go to Telstra's - - -
PN3738
THE COMMISSIONER: Can I interrupt for a moment, I'm sorry, but there is an issue that, just for myself, I would like to be clear upon and it goes to this question. I have heard Mr Wicks' evidence about collective employees and I have listened to your questioning closely, Mr Rich, and I've also examined your application. Now, your application talks about employees - employee/employees. The award says "employees". I'm just anxious to ensure that I'm not hearing an answer to a different question, if I can put it that way. There seems to be some distinction being made by Mr Wicks in his answers to the question of employees and some distinction you make when you might say "employees", meaning both the singular and the plural, and in terms of the award provision and the application I would like to be confident that I understand the evidence.
PN3739
MR RICH: Maybe then just to clarify that point about the way that Telstra's procedures and its policies work. Are individual - well, it is the case, isn't it, that individual - where a matter only involves one employee, it is not the Telstra enterprise agreement process that is followed, it is the Fair Treatment Process, which is Telstra's preference to follow in terms of the way it sets out its policy, is that right?---That's Telstra's preference, yes.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3740
Right. So it is only where it is groups of employees involved in a dispute that Telstra advocates, or suggests - requires if you like under the policy - that the enterprise agreement procedure be followed to resolve that dispute?---My understanding - and as you pointed out I wasn't at Telstra when this enterprise agreement was negotiated - but that refers to collective disputes around the application of the terms of the enterprise agreement.
PN3741
Right. Okay, so when the policy says - it's talking about the dispute avoidance resolution procedure, this policy under the certified agreement - it says:
PN3742
This procedure details the steps a supervisor or manager should ensure are followed when a group of staff advise him or her of a work-related issue in accordance with the Telstra Corporation Business Unit Enterprise Agreement.
PN3743
?---Sorry, could I get the exhibit back? I actually - - -
PN3744
Yes, sorry?---Sorry, I returned it.
PN3745
I just read you that second paragraph there?---Thanks.
PN3746
So that is referring to where groups of employees have an issue or a dispute and they approach a manager, then it is progressed through the enterprise agreement?---The enterprise agreement disputes procedure, yes.
PN3747
Yes, that is right. I'm not sure if that clarifies the - or if I haven't clarified the point, or not.
PN3748
THE COMMISSIONER: It is all right, I just alerted you to an issue.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3749
MR RICH: Yes.
PN3750
THE COMMISSIONER: I've heard the evidence.
PN3751
MR RICH: Okay. That is the only question I have on that particular document.
PN3752
It is the case, isn't it, that the award does not require that the process be formally commenced - the dispute settlement procedure I'm referring to, does it?---The award dispute. I would have to have a look at it.
PN3753
It commences at paragraph 19. It does not require any formal commencement of that process, does it?---No.
PN3754
No. So what the process under that award requires is that - is that there be a steps escalation from manager, or supervisor and employee, to the next level of involving the union at the second level and so on. It does not require that there be a formal process, does it?---No, it's not written in the course.
PN3755
The way that Telstra interprets that clause, I put it to you, is that it does require some sort of formal commencement, is that right?---I haven't seen this clause applied in practice. As I said, the enterprise agreement disputes procedure is understood, I think, by Telstra as being the disputes procedure, which was agreed between the parties in the enterprise agreement.
PN3756
You know that the union's view on that clause is that - where it refers to "employees" in the plural, that it includes the "employees" in the singular?---Am I aware that is - - -
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3757
Yes?---I thought the application that I read sought to vary - and I presume you're talking about 19.2 - it sought to vary the word "employees" to put a back slash between the "s" and the "e". I actually understood that to be an application to pick up the point that you are raising, so I'm not sure that I would say that I was aware that the union had that view.
PN3758
Well, I put it to you that the reason that the application is being put in its current form is to clarify the position which previously has been opposed by the company in the way that the award should be applied, but nonetheless, are you saying you haven't seen it applied in practice?---This disputes procedure?
PN3759
Yes?---No.
PN3760
So in fact it is you don't apply the procedure, is that what you are saying?---Well, no, in practice the disputes procedure under the enterprise agreement is applied and, in fact, as I said when I flicked through the documentation in this proceeding and all the matters that were raised, I think the vast majority were under the enterprise agreement disputes procedure, which is a different procedure.
PN3761
Okay. Now, there is also a union role in the award, isn't there, in respect of noticeboards? The award recognises noticeboards?---Clause 17.
PN3762
Yes?---Yes.
PN3763
Okay. It also provides for - the award that Telstra has with the unions also provide for consultation, is that right?---I'd need to obviously - - -
PN3764
So you are not familiar with the award very well, is that right?---I am familiar with the awards but I think as with anyone - and particularly giving evidence - you want to be certain.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3765
Okay?---I actually thought that consultation - well, I know consultation is contained in the enterprise agreement and that's the clause that's applied by all the parties in respect to consultation.
PN3766
Isn't that also contained in the awards?---Well, looking at this particular award and looking down the index, I don't see consultation listed as a clause.
PN3767
But you recognise that the award is an award with the CPSU?---Yes.
PN3768
And that there is a recognition of the role of the union, at least in the noticeboard provision and also in the dispute settlement procedure in terms of the representative right?---Yes.
PN3769
Okay, all right. Again, there is no - the Fair Treatment Process does not allow any representation rights, does it though?---It doesn't permit advocacy rights but assistance - - -
PN3770
Sorry, representation, it allows for an observer?---Yes, correct.
PN3771
Yes. Indeed, there is nothing in the induction program either, is there, that Telstra runs in relation to the union in relation to representation?---I'm not - I don't have detailed knowledge of the induction program for staff at Telstra, other than the documents I've read in this proceeding.
PN3772
Okay, and the documents that have been produced in these proceedings, have you read those?---I flicked through them.
PN3773
Do you recall that Telstra produced the induction program that it runs?---As I say, I flicked through the documents.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3774
To your recollection, or to your knowledge, was there anything in there about the role of the union - or about unions?---Obviously, to give you a full answer I'd have to read through it, but I don't - - -
PN3775
Would you expect there to be anything in there about the - - - ?---I don't recollect there was anything about it, no.
PN3776
Would you expect there to be anything there about the union?---I don't think Telstra has an arrangement with the union in terms of providing that information so I wouldn't expect there to be anything in there, no.
PN3777
No, okay?---We have, as I've outlined, a significant number of staff who are either on AWAs or individual contracts and, as understand it, the induction applies to all of them.
PN3778
You would also recognise you have a significant number of staff covered by awards and agreements, don't you?---Yes, certainly.
PN3779
Do you know if staff were taken to the relevant awards during their induction?---No, I don't.
PN3780
So you wouldn't know whether they were or whether they weren't?---No. I wish I had an induction myself.
PN3781
So certainly you never even had the induction?---Well, I guess I had an informal one.
PN3782
An informal one. So you are not even sure how rigorously the induction process is applied to people?---Well, I think the - at more senior levels of management, the formal induction in the nature of the document it becomes less formal and then for Levels 5 and 6, I would imagine it's quite a formal process.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3783
So then back to the Fair Treatment Process again, is it right that if a Fair Treatment Application isn't made within 7 days, then only in exceptional circumstances will a review be considered?---That's certainly the policy.
PN3784
Is there any such restriction under the award to your knowledge, or to - or under the agreement for that matter on the review of - - - ?---The - sorry - the enterprise agreement has tight time frames. I obviously don't have it in front of me, but there are one or two days ascribed to a number of the processes under the enterprise agreement disputes procedure.
PN3785
But not to the initial notification or to the initial notification of the dispute to management?---Well, the disputes procedure in the award or enterprise agreement applies to grievances that employees have - - -
PN3786
And that are raised - - - ?---- - - whereas the Fair Treatment Process applies to a decision made by management, so clearly where management make a decision such as appointing, or announcing an appointment to a position, then, because that decision impacts on other staff - for example the person that has been appointed - then there are clearly quite tight time limits in respect to the review of that decision. In respect to the disputes procedures, obviously, in an industrial context and a collective context, those time frames are not quite so relevant.
PN3787
Presumably, they are disputes that arise - disputes that might arise, as you say, under the award or the agreement - could well be a result of decisions made by management about the way that entitlements should be determined?---Yes, but often as I say, where the collective - there is not a winner and a loser in a sense that you have in an individual decision, such as a promotion, where there is a person who has been appointed to a position, or given a project, or whatever the management decision is and their life is on hold while the review occurs.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3788
So what about a decision that is made about the application of the - like the flexible working hours scheme in respect of one person who might bring the grievance to - through the Fair Treatment Process - but the effect of the decision is that it will be applied elsewhere to people in similar circumstances again, so although it might be notified as one grievance, it obviously is a broader application. What about that sort of circumstance?---What happens in a practical sense is that the employee would be asked, or invited to use the Fair Treatment in respect of their individual problem with the flexible working hours, or the decision of the manager. If the matter became of a collective nature, then, the union may lodge a dispute, or obviously discuss the issue with management and then failing that, lodge a dispute, and if a dispute is lodged the company will attend before the Commission and seek to resolve the matter, usually through conciliation.
PN3789
Okay. So you are abdicating that when there is a collective issue it should immediately be escalated, as opposed to dealt with on the floor. It should immediately go to the union and be notified, is that what you propose for - - - ?---No, no, no. I'm just saying that is often what occurs in a practical sense.
PN3790
Do you think that would be in part because of the way that you require individual grievances to go through the Fair Treatment Process?---I don't - - -
PN3791
You don't think so?---Well, I don't have - - -
PN3792
You don't have a view - - - ?---- - - exposure on that, no. I don't work at the - right at the coalface.
PN3793
Can you confirm then that you have got the first level of the fair treatment process, which you have got the manager who made the original decision. Then you have got the next review, the second, the two-up manager?---Can I just clarify, sorry, that the first level again is a level five manager. So on many occasions it will be a level six manager who has actually made the decision.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3794
Sorry, to clarify that - so the level six manager will make the decision and the level five manager will review the decision?---In many instances, yes, at the first level.
PN3795
Can I take you to the attachment to your statement, the fair treatment review policy which is probably before you in another form as well. But it is BW2, I think it is. BW1, sorry?---BW1, yes.
PN3796
It is about page - it is the fifth page in I think it is. It is headed: Fair Treatment Review Overview and it has got a number of boxes, a sort of flow chart. Yes, that is the one, page one of two?---Yes.
PN3797
You see that down the bottom of review one, it says:
PN3798
Your one-up manager formally reviews the decision and it is likely that your one-up manager is the manager responsible for the decision action in the first place.
PN3799
?---Yes.
PN3800
THE COMMISSIONER: I'm sorry, I don't see that. Where is that?
PN3801
MR RICH: Sorry, it is on a page that looks like this.
PN3802
THE COMMISSIONER: Yes, I've found it now. Yes.
PN3803
MR RICH: So review one down the bottom of the page there, as you recognise - the first two recognises that the person who makes the initial review is usually in most cases the person who made the initial decision?---If it was a level five manager, yes.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3804
You agree with that statement, do you, that it is likely the one-up manager is the manager responsible for the decision in the first place?---I don't know whether it's likely or not likely because I don't know the - - -
PN3805
Given your short experience in the company?---No, I just don't know the details of all the - you know, the intimate details of all the fair treatment reviews so I can't really say whether the majority of decisions being reviewed are level 6 decisions, in which case the review one would be a level 5 or whether the majority of decisions being reviewed are level 5 decisions. It's also worth noting there are level 4 decisions that are reviewed as well and so forth. This policy applies to the whole of the organisation.
PN3806
Yes?---At all levels.
PN3807
THE COMMISSIONER: Mr Wicks, you may be able to assist me. I've just glanced at a number of those agreements that have kind of been provided to me and it does not seem that the fair treatment process is mentioned in those agreements at all. Is that your understanding?---Yes, the fair treatment process is a company policy.
PN3808
And it is not referred to in the industrial instruments?---Not that I'm aware of.
PN3809
Thank you.
PN3810
MR RICH: Okay. Then the peer review, that is done after the two-up manager has done their review, is just a review of the procedure to make sure the fair treatment process was properly applied. Is that right?---The peer review is a manager from another area of the business.
PN3811
Yes, another line of business?---Yes, and their key role is to review the process that was applied by the level 1 review and the level 2 review to ensure that it has been applied fairly.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3812
Right. So you have got the first level, the one-up manager?---There's also the informal step at the start as well.
PN3813
So there's the informal step at the start?---Yes.
PN3814
With your one-up manager and then there's the review which you then institute formally?---Yes.
PN3815
To the one-up manager which the policy says is likely to be the manager who made the decision in the first instance?---Well, depending on whether it's a level - whether your direct manager is a level 6 manager or a 5.
PN3816
That is what the policy says though. You recognise that?---Yes.
PN3817
Yes?---Certainly.
PN3818
Then you go to someone in the same line of business?---Yes.
PN3819
The two-up manager?---Yes.
PN3820
Who will then review the decision of the person below?---Yes.
PN3821
Those two reviews are supposed to be reviews on the merits. Is that right?---Correct.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3822
How do those managers determine the merits of the application? Are they given any training on that?---They have human resource consultants and managers throughout the business and these managers are very aware of how the process works. So it would be my understanding and certainly the couple that I've been involved in from an industrial perspective - the human resource managers provide them with significant assistance in how to operate the policy or how to review the decision.
PN3823
So if the grievance that has gone through the process is one about carer's leave, for example, and about the application of the carer's leave entitlements under the award, is the manager required to go to HR to work out what the award says or what the entitlement is?---When they - - -
PN3824
When they're doing the review?---When they review? No, they're not required to - I'm not aware of any sort of riding instruction that managers must have interpretations that they might make approved.
PN3825
So managers are accountable in that sense and they're also given the power to make those decisions?---Yes.
PN3826
But they're not given any training in the way the awards work, are they?---I haven't certainly been involved in providing any training to them and I haven't - other than some training that I've done with human resources managers, I'm not aware of any training that they've been given. But that is not to say that they haven't. I'm just not aware of it.
PN3827
But as far as you are aware there's no training of that sort that is given to those managers?---No, not formal training.
PN3828
So presumably if they feel they're not coping then they will ring HR and they will get HR to assist them. Is that right?---Well, we have an HR help desk which I think is a 1300 number that they can ring.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3829
Is that the fair treatment office you referred to?---No, this is another service that's provided to the managers and I think it's also provided to the staff.
PN3830
Okay?---Where they can ring in and there are human resource professionals who can assist them.
PN3831
Now, if a manager does not go to an HR person to work out the way that the entitlements should be interpreted or the way that agreements should be resolved, presumably they will go to the Telstra policy. Is that how it usually works. Is that what you would imagine would happen?---Certainly. They would look at policy and they look at the policy first.
PN3832
Right, okay. So the expectation is that Telstra policy is applied by the manager and the manager does not need to look past the policy?---I guess it depends on the situation but certainly our policies are available for all employees, easily available.
PN3833
So what happens in circumstances where there's some dispute about the policy, about the policy ..... it might not be a company policy, it might be a centre policy about the way the flexible working hours scheme should operate for example. What happens in those circumstances? If there's a review under the fair treatment process, is it your experience that there is a real review of the policy or is the review really just carried out to ensure the policy is complied with?---My understanding of the fair treatment process is that it reviews the decision of the management. So again, for example, if a promotion has been made or a disciplinary - a decision has been made to discipline an individual, then the fair treatment review process will review that decision, not the company policy. The company policy may be reviewed as a consequence of the outcome of the fair treatment review. However, the fair treatment review itself will not review the policy.
PN3834
So the fair treatment review occurs on the understanding that the policies that exist are correct and that they're not being reviewed?---Yes. However, as I say, I can't think of an example but if there was a problem with the policy that was highlighted by the fair treatment review then there are other professionals I guess who would review the policy and change it if it was wrong.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3835
But if there's no process for that to - I mean, that does not necessarily occur in the process, does it? That might occur by chance but if you go to your two-up manager for the review and the manager says the policy was applied and the person walks away and decides not to take it any further for whatever reason, that is probably where it is going to end, isn't it?---Yes. Well, unless management - I mean, management of its own volition will recognise problems with policy and change them, yes.
PN3836
But that relies upon management to determine that there's something wrong?---Well, Telstra employs a human resources community and other people who - one of its roles is to ensure that we deliver fair and reasonable policy.
PN3837
Okay. Now, the fair treatment office that is referred to - it says it is a virtual office. What does that mean? It's just a telephone queue that is answered by various HR people as the phone rings?---No, there are specific people who work in the fair treatment office such as David Stephenson and David, who I've met, has an office on level 33 of Exhibition Street where he will receive calls from employees and assist them with fair treatment reviews and the process. He may assist somebody in Perth for example - that's what's meant by a virtual office, that he's accessible to anybody around - or anybody who works for Telstra without actually being where they are.
PN3838
So he's dedicated to answering the queries for employees on a fair treatment basis?---He has other duties such as the data in my statement on fair treatment. He records on a database. He ensures that the process is followed by managers and also assist the employee.
PN3839
When you say ensures the process is followed by managers, what do you mean by that? How does he do that?---He doesn't get involved in the merits question but he does follow the process in terms of the procedural steps to ensure that it's properly complied with.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3840
In terms of the application of policy and the review, whether or not it is a review on the merits, do you think it is fair to say that it is a merits review if in fact the issue is with the policy itself. Because the policy isn't being reviewed so generally the decision isn't going to change. Would that be fair?---I think that would be fair. Again, the fair treatment review addresses decisions of management not the quality of the policy, of a company policy.
PN3841
Okay?---But again arising out of it there may be a review of a policy.
PN3842
Do you think it would make sense of a process that does deal with individual grievances arising out of complaints or disputes about the appropriateness of particular policies?---I'm sorry, I missed the first part of the question.
PN3843
Do you think it would be fair to have a process that does deal with grievances that arise out of disputes about policy?---Well, I think there's a number of procedures within Telstra to deal with that. There's obviously the collective procedure in the awards and enterprise agreements which although a lot of policy is not an industrial matter, practically discussions may occur on a collective basis in that respect. But also Telstra devotes a significant amount of resources, time and money to internal reviews of policy whereby teams of people will talk to sometimes many thousands of employees about a particular policy or a particular direction. On-line surveys will be issued to, again, often thousands of staff to gather their views about whether certain policies are working or whether they're fair or unfair and a very large amount of work is done by Telstra internally to improve on its policies in response to the concerns that our employees may have about them.
PN3844
What about policies that only affect a small number of people - one or two people - in their application unfairly. That wouldn't require a review of the whole policy necessarily, would it?---I'm not quite sure.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3845
Okay, what about - let me think of an example. I think Mr Evans gave the example of a - it probably wasn't strictly a policy. It was a direction from management. I think in his supplementary statement, J2, he refers to a direction from Mr Phillip Hastings, who is the managing director of Global Connect. Can I ask, what level is Mr Hastings at? Is he a level 2 manager, a level 1?---I don't know.
PN3846
You don't know?---He's a senior manager. Whether he's two - - -
PN3847
Level 1 or 2, somewhere around there?---I don't think he'd be a level 1.
PN3848
Level 2 possibly?---Or three. I'm not sure.
PN3849
Right. He's a senior manager nonetheless?---Assuming it's the same Phil Hastings.
PN3850
Yes, let us assume it is the same Phillip Hastings?---Yes.
PN3851
He has made a direction that:
PN3852
All outstanding leave in excess of six weeks at the end of the year will be automatically cancelled.
PN3853
Now, I guess that is not strictly speaking a policy?---No, that's not.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3854
But would you imagine that direction would be followed by managers further down the line as though it was a policy in the sense that they wouldn't question it. They would follow it. That is the way the management works. Is that right?---I think if a very senior manager issued a direction like that, a lot of managers would assume that it was right but also I think a number of managers may also know that the policy says something else and a lot of them may actually say - if it was by e-mail - send an e-mail back to him saying, "I'm not sure if you're aware but this is what our policy says."
PN3855
But you don't know that is what happened, do you? As you say, you would expect that coming from a high level manager that the majority of managers would expect that they should follow that direction?---I think a lot of people would believe that was correct, yes, but some obviously - different people have different styles I guess.
PN3856
Okay. Now, assuming that a manager down the line decided to implement Mr Hastings' direction- - -?---Yes.
PN3857
- - - and told staff as such?---Yes.
PN3858
It is feasible, I think, that Mr Evans gives evidence of a dispute that arose about it?---Yes.
PN3859
That is something that a manager might say should be reviewed through the fair treatment process - if he is proposing to cut off any leave over six weeks, that that decision should be reviewed?---I think in this case if it went to the fair treatment process the decision of the manager would probably be overturned on the basis that it didn't comply with the company policy on annual leave.
PN3860
Okay?---I mean, don't get me wrong, I - - -
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3861
Does the company policy say that you can accrue as much leave as you like?---No, it doesn't.
PN3862
What does the company policy say again?---The company policy says that - and it gets a bit complicated, this particular issue, but it says that effectively managers and staff should target a leave accrual balance of around four weeks.
PN3863
Okay?---So, I don't know - I was actually involved in the development of the company policy on this issue but I don't know that you want me to - - -
PN3864
Which arose in part out of this matter being brought to your attention through the union. Is that right?---Yes, in part.
PN3865
But you might expect that some people might think that Mr Hastings' direction is in - it does not directly conflict with the policy necessarily and they might try and implement it?---The direction from Mr Hastings arose out of what use to be in the - I suppose the Telstra by-laws where in actual fact staff who accrued leave over a certain amount forfeited that leave. I obviously wasn't involved then but on my research of it that was changed when all the awards and by-laws were simplified and at present there is no ability in Telstra to forfeit employee's leave.
PN3866
I guess I'm not trying to - I'm not asking you questions about whether or not Mr Hastings direction was correct, although you have indicated that it was incorrect, the point is more that I'm trying to make or that I'm trying to get to at least is how managers follow directions from senior management which might not be directly inconsistent with policy. My point was that it is likely that they are going to try an implement that?---Yes, as I said certainly some managers believe their managers.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3867
So when there is - then when there is an issue that is or grievances brought to the fair treatment procedure about a decision made pursuant to a direction from on high, when it is being reviewed, the people who are reviewing the decision won't be reviewing the senior manager's direction, they will be ensuring the decision is made in accordance with that direction as well as with the policy, won't they?---I think for example in this case, that it probably wouldn't have got past informal review in a lot of respects because the managers would have sought some advice from the human resources community and I would imagine in this case, the advice would have come back that we can't forfeit leave and I'm not even sure - I'm even sure that it would have necessarily gone anywhere.
PN3868
Do you recognise that managers don't have to and are not required to oblige to talk to HR about these things?---Well, that is correct, yes.
PN3869
So it is quite possible, isn't it, that these managers would be trying to apply the policy as well as the direction from senior management in reviewing the decision that was made originally in any fair treatment process?---In an organisation like Telstra anything like that are possible but again, as I have outlined there are significant resources through policies like fair treatment review and the human resources community which managers and staff are aware of that are there to assist people to ensure that their decisions are correct. Some decisions won't be but that is the way it is.
PN3870
THE COMMISSIONER: Mr Wicks, is that - the example that Mr Rich is giving, is that a matter which would go before the fair treatment review? If somebody was complaining about a policy be it sick-leave, annual-leave and said that they didn't agree with that policy, is that something that they can agitate through a fair treatment review?---The fair treatment review does not review the policy.
PN3871
No?---Only the decision that arose out of it but - - -
PN3872
But if the decision is consistent with the policy, there is no role for the fair treatment review, is there?---The fair treatment review ill uphold the decision, yes.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3873
Would you expect somebody to take a complaint about policy through the fair treatment review or would you stop them dead in their tracks and say: look, that is the policy, don't even bother saying it is unfair because it can't be on an individual basis because a policy applies to the whole of Telstra staff?---I think that if someone had a concern about a policy they would be involved in the process of reviewing that policy and - because I would have to say in my experience, nearly all of our policies, particularly around our staff, are virtually under constant review and staff input is very highly valued in that regard but I don't think that the fair treatment review would fit very well in the review of the Telstra wide policy because the reviewers would be the level - the level 5 manager effectively being asked to review a policy for the whole organisation.
PN3874
Yes, so it really does not fit, fair treatment review really isn't the vehicle for someone?---No, and as I've said, other fairly significant processes for - - -
PN3875
Staff feedback?---Almost constant review of our policies.
PN3876
Yes, thank you.
PN3877
MR RICH: In terms of the timing of the way the fair treatment review works, I think you said before that it is true that the initial application has to be made 7 days after the original decision was made?---Yes.
PN3878
Otherwise there is no review of the decision unless there are some exceptional circumstances, is that right?---Yes.
PN3879
Okay, and then the review can take between 7 and 50 plus days, is that right? This is just - I'm just reading through your policy here. So it is expected that the review will take up to 50 days. Is that what 50 plus mean, or does 50 plus mean - what does that mean. So I'm referring here to page that is titled: Responsibilities of the Parties?---Mr Rich, it is effectively a balancing act if I could put it that way, in carrying out the time limits in the review and for
**** BENJAMIN RODNEY WICKS XXN MR RICH
example, there have been a number of occasions where staff had pursued the collective process for individual matters and as I said earlier, we have indicated that our preference is that they use fair treatment but they are out of time because they have pursued the collective. We have had no problems in saying to them that the 7 day limit we won't apply. Likewise in my experience with fair treatment reviews often people have sickness or have a lot of material that they want to present or prepare and so often again, the time limits get pushed out. So, the time limits are there but the purpose of the fair treatment review is to enable staff to have decisions reviewed fairly and so I think it is fair to say the company takes a reasonable approach to these issues.
PN3880
So that means that the 50 days can stretch out as, as is required?---Sorry, where is the - - -
PN3881
Sorry, I'm reading from - I think it is about 10 pages in or so from the front of that BW1, it is a document that is headed: Responsibilities of the Parties, it is a reasonably short page, have you got that?---Yes. Yes, I have read that, thank you.
PN3882
So, you said you think that Telstra's policies are fair and their aim is to be fair etcetera, etcetera. What does 50 plus days mean? Does that mean it could take as long as it takes, is that what that means? Or does it mean it usually takes 50 days maximum although it can take longer?---I'm just trying to think of some of the data that I'm aware of on this. There - I saw some data where the average time was significantly less than 50 days, significantly less, but there were also the odd ones that were - I think one was 6 months but that had particular circumstances surrounding it on both the employees part and also the complexity of the issue that had pushed it out, but again, the data that I saw indicated that the average time for a fair treatment review was significantly less than 50 days.
PN3883
It is not expected that it should take longer necessarily, I mean usually, in the course of events that is the anticipated range of time?---I think in the perfect world management and the staff member would work together to quickly get to the issues, get to the merit of the issue and resolve it to the satisfaction of both parties and that would take significantly less than 50 days.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3884
Could I take you to the next page there of fair treatment policy which is the fair treatment review check-list?---Yes.
PN3885
It says down - it recognises under the heading - - -
PN3886
THE COMMISSIONER: Just a moment, I'm sorry, I need to find where you are at.
PN3887
MR RICH: Sir, I'm at a page called: Fair Treatment Review Checklist.
PN3888
THE COMMISSIONER: Checklist, yes, I have that, thank you.
PN3889
MR RICH: It recognises under the heading: Put your case in writing, about sort of half-way down the page or so, that the initial application has to be in writing, that is right, isn't it?---Yes.
PN3890
Okay, and that is after you have already had an informal review with the same person?---Yes.
PN3891
Then over the page, this is to the one up manager, about two-thirds of the way down the page it recognises under the heading: Discuss the Issue, that on the first review if necessary the discussions should be documented, is that right?---Yes.
PN3892
All right. So there is a recognition in this process that the documentation of the various steps is an important part of ensuring that everybody is happy with the outcome?---I think, as it says, if you consider it a necessary document for discussion so I don't think there is a hard and fast rule around whether some sort of proceeding should be recorded by the manager. It depends on the circumstances I think.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3893
And what circumstances might you think - like their documentation?---I would imagine a more complex matter - a more complex decision that a manager was reviewing may - it may be necessary to document what's been said so that the parties can - everyone can keep track of the issues they are dealing with. I would imagine a simpler review may not need that level of documentation.
PN3894
So if there is a simple review and no documentation at that first level?---Yes.
PN3895
And the employees are not satisfied with the outcome and they take it to the next level, what is the second level manager reviewing, is it just the bare bones of the decision that was made and they are not reviewing or looking at anything that has gone before them?---I don't think the next level actually reviews the first level review. They review the decision of the manager.
PN3896
I am not suggesting they review the review, but just that they have no material before them to look at what was said at the previous level?---No, not necessarily, they - well they will obviously have the employees documentation and anything else they may wish to have with it but I think they deal with the employee - the employees issues again at a more senior level of management.
PN3897
So it is starting again. The first time the manager becomes aware of it and they are starting the process or they are sort of starting the review?---Well they are reviewing the manager's decision.
PN3898
Okay, thank you. I just want to clarify - this process does talk about an obligation on managers to treat the staff member fairly, etcetera - does that mean a problem with the fair treatment process properly, is that what that means when you talk about fairness, is that what that means? Sorry, for example, on the following page where you talk about, there is a two-up manager - about three headings down there:
PN3899
Conduct your review; decide whether the one-up manager treated the staff member fairly.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3900
?---Yes.
PN3901
Throughout the document there are other references to treating staff fairly?---Yes.
PN3902
Does that refer to the treatment of staff by the following of the fair treatment process? Are staff considered fairly treated if the process is followed?---No, I think it extends to, for example, the application of Telstra's values to the treatment of our staff.
PN3903
Okay. What are Telstra's values?---I'm not sure that - I think they might be in my annexure.
PN3904
THE COMMISSIONER: Is that the Code of Conduct?---Yes.
PN3905
Page 5 of 31. Telstra values is:
PN3906
For an explanation, please visit the Telstra Values site.
PN3907
That is the next page: Code of Conduct and Guidelines for Expected Behaviour?---Well the Telstra values are, I think, the common sense values of how Telstra staff are expected to deal with each other; honesty; trust, etcetera.
PN3908
MR RICH: Okay, so the sort of broad brush concepts like honesty and trust, that is what you are saying the values are. They are not taught to managers as such, they are just told that these are what Telstra's values are?---No, actually, as I understand it in the last 6 to 12 months, there has been extensive training of managers and staff across the business in respect to the application of Telstra values and they extend to the treatment, not only of staff but also how we treat our customers and other stake holders.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3909
So all your staff - all your managers are now honest, fair, trustworthy - would that be fair, is that what you are saying?---I think, again, in an organisation as big as Telstra there are all sorts of people but certainly in my short experience at Telstra, I have been presently surprised at the level of trust and honesty, not only of managers but of staff in Telstra.
PN3910
The point is I guess that treating a staff member fairly is a very - given what you are saying - is a very subjective decision isn't it and it is a very subjective concept, fairness, in that context isn't it?---It is subjective but it is also, I think, surrounded by, as I said, our values and in the last 6 to 12 months there has been an extensive roll-out and training on those values, so I think it is subjective but it is obviously significantly limited by what Telstra believes is right and wrong.
PN3911
So given the sorts of principles you say determine fairness, again we are just getting back to the way that people are treated aren't we, with respect, with honesty - that is what fairness is about?---Yes.
PN3912
And that is what the fair treatment process is about?---Yes.
PN3913
THE COMMISSIONER: Mr Wicks, is there any data kept on the types of issues that are put through the Fair Treatment Process?---Yes, Commissioner, in my statement at page 11, paragraph 34, there is a breakdown of nearly 400 inquiries made of the Fair Treatment Office and the types of issues.
PN3914
Now would it be fair to say that each of the decisions which give rise to an invocation of fair treatment, would be discretionary decisions on behalf of managers?---Yes.
PN3915
Thank you.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3916
MR RICH: In paragraph 30 there of your statement, where you refer to the first option being the Fair Treatment Review Procedure, that is the first option that management are instructed to take, the first option that they should encourage employees to use as the fair treatment process, that is what that statement means?---If it is an individual matter it is Telstra's preference, yes, that people access the fair treatment process.
PN3917
And again an individual matter is a matter brought to you by an individual?---About a decision that their manager has made about them, yes.
PN3918
Now, the records that you refer to in paragraph 31?---Yes.
PN3919
They are from December 2000, right, but they are the ones that are listed in paragraph 34, is that right?---Yes.
PN3920
And then later in paragraph 36 you are referring to formal fair treatment complaints as opposed to contacts with the Fair Treatment Office, is that right?---Yes.
PN3921
So they are separate, those two?---Yes, the data in paragraph 34 is about inquiries, is data about inquiries. The data in 36 is about actual fair treatment applications.
PN3922
Okay and you don't know whether or not there's some overlap between them or whether or not they are totally separate or - - -?---I've got no doubt there's overlap because people make inquiries and then a week later may lodge a fair treatment based on that inquiry.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3923
Okay and these fair treatment - the calls are made to the Fair Treatment Office. The Fair Treatment Office, that started in December 2000 did it or is that when it started taking note of what it was doing when it started up or - - -?---I'm aware in around that time there was a major review of the policy. As I said these policies, our policies are almost constantly under review and I think as an outcome of canvassing from staff their feedback on the fair treatment process, one of the changes that we made was the introduction of a fair treatment office to manage the process and ensure that it was carried out.
PN3924
These policy reviews, the union isn't involved in those reviews is it?---Often they will be. Often consultation will occur between the parties about a change that Telstra is considering making that may affect or may fall within the ambit of the consultation clause in the enterprise agreements for example.
PN3925
So can you recall when the last policy was changed that involved consultation with the union about what the policy should look like? I'm talking about CPSU here?---Yes. We talked about accumulated annual leave, the 6 weeks that Mr Hastings issued. I had extensive discussions with Mr Evans in respect to that policy as well as other unions about the change to that. In respect to carers' leave - - -
PN3926
And those two issues were brought to you by the union? They were issues that were being agitated by the union on the ground?---I think they were being agitated through a number of channels. That really alerted Telstra that the policies needed to be reviewed.
PN3927
Which is why the unions were consulted because the union approached the company about issues that it had in relation to individuals that were affected here?---I think partially because the union had approached us and so they were - obviously had an interest in it but also because of the enterprise agreement.
PN3928
But the normal policy review process that you say involves thousands of employees does not usually involve the union does it?---Well, I don't - as I say, there may be occasions where consultation is required and other occasions where it is not required.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3929
Okay and there have been various disputes about what consultation means and the involvement of the unionists haven't there?---Well, there is that issue around the enterprise agreement and the CPSU not being a party to it, yes.
PN3930
Can I ask you, you say in paragraph - you break down the number of initial contacts in paragraph 32 by business units and you make the statement in paragraph 33 that almost half the contacts made to the Fair Treatment Office came from the Infrastructure Services Business Unit?---Yes.
PN3931
Which isn't a union with significant CPSU coverage?---Yes.
PN3932
Can I take it by that you tried to say that CPSU areas of coverage don't tend to have many issues arising out of them? Is that what you are trying to say or what is the purpose of that statement?---No, I was merely pointing out that 187 out of the 396 were in Infrastructure Services.
PN3933
Okay. Because Infrastructure Services also has the largest number of employees as the business unit does it not?---It does, yes. It also has the predominantly CPU covered staff.
PN3934
Yes, okay and if you break down the numbers you have got in paragraph 32 as a proportion of the number of employees in the business units it is the case isn't it that in fact the highest number of queries were coming from the mobiles area?---As in per head of - - -
PN3935
Per head of employee and then the retail area and then the Infrastructure Services area?---That wouldn't surprise me at all, not on the basis that there's more disputation in these areas.
PN3936
If I can take you back to earlier on in your statement to paragraph 22 talking about the industrial environment at Telstra?---Yes.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3937
In particular you talk about the number of enterprise agreements which cover staff going from 30 - - -?---Yes.
PN3938
- - - to 4. How many - I mean it is true isn't it that there was only one key enterprise agreement prior to the current four enterprise agreements that were in place, in terms of key enterprise agreements?---Yes, I think there was the 1998-2000 agreement.
PN3939
And that agreement, we've now gone from that one agreement to the four?---Yes.
PN3940
Now, those four agreements contain different work streams within those agreements, is that right?---Yes, they do.
PN3941
And there are different - so how many different work streams are there? There are - - -?---I think there are 12.
PN3942
There are 12 different work streams and then there are different bands within those work streams with different - - -?---Yes.
PN3943
And then there are different benchmark job descriptions that attach - - -?---Yes.
PN3944
- - - people to those bands?---Yes.
PN3945
In each of the agreements?---Yes.
PN3946
And then you talked before about core job descriptions. Are they the same as benchmark job descriptions?---Yes.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3947
Right. So there are these core job descriptions which attach to the bands and then there's a link then between those core job descriptions and the job descriptions that each individual employee has for their position?---Yes.
PN3948
And as a part of the move to the new system with the four enterprise bargaining agreements part of that process involved a review of all the job descriptions and because those job descriptions are now more significant in terms of what they were classified?---The core job descriptions.
PN3949
Only the core job descriptions - - -?---The review?
PN3950
Yes?---In terms of enterprise agreement negotiations I think it was only the core.
PN3951
But in terms of outside of the agreement, in terms of the way that, the move that has occurred within the company, there is a review of the job description that individuals were employed under?---Yes, yes. There are human resource professionals that - whose function it is to review the job descriptions.
PN3952
Because those job descriptions are now more significant because they tie in directly with where people are classified under the agreements, is that right?---As I understand it the process which is effectively the Hay Mercer process is that a role on the ground will be analysed and a job description prepared. Then using the Hay Mercer process that job will be aligned with a core job in the enterprise agreements and that is how the staff member will have their salary determined.
PN3953
And the Hay Mercer system is a system for evaluating jobs is it?---I think it is probably one of the best known in the world for a system for determining people's - where particular roles fit in the market.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3954
So it accesses jobs based upon the skills that people exercise the knowledge they have to have etcetera and it gives them scores. Is that right?---I think it ascribes points.
PN3955
Okay and then it measures those points with external market assessments of - - - ?---Yes.
PN3956
- - - similar jobs. Okay, a reasonably complicated system wouldn't you say?---It is actually, I think, when you consider how many staff transitioned from the old incremental system and I understand that there were nearly 370 different pay bands and so forth in the older agreements. When you consider how many staff moved it is - it was done really with very little or very low amount of disruption.
PN3957
That is not what I asked though. It is a reasonably complicated system isn't it the way that it works now, the assessment of where an individual's job should be valued based upon a course of the job description being right in the first place, matching it to the market, fitting the job description in with the core job description, ensuring that the core job description is tied to the relevant band in the relevant business unit and in the relevant workstream within that business unit. That is a reasonably complicated system, isn't it?---I think the actual process is actually not very complicated and also it is only done once for the staff member so it was - - -
PN3958
Unless, of course, the staff member has some - has a dispute with where they are - - - ?---Well, then there is, as I understand it, there is a mechanism within the enterprise agreement another disputes procedure, if you like, which enables I think a panel including - it might even include a union representative to review the grading of the staff member. So there is - that has been utilised in the transition but I am certainly not aware of any that occur not.
PN3959
So whereas previously people were - you would be an admin officer and you would go through - you would be an admin officer 1, maybe, and you would go through the increments?---Yes.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3960
Then you might be an admin officer 2 and you would go through the increments?---Yes.
PN3961
Which seems to me to be a reasonably simple system. The current system you don't think is more complicated in any respect?---As I said, I think there was something like 360 different roles under the old agreements and I actually researched them the other day, there was actually 44 certified agreements. There was some 360 odd roles now there are 12 work - I think there are 12 work streams and people's salaries are tied to a company rate which is tied to the market rate.
PN3962
In many cases don't those previous increments continue to exist in terms of the grandfathered increments to the agreements?---There are some staff who are under the sales force agreement and some staff who are under the seniors agreement which were minor agreements. I think there is probably less than 50 in total on those agreements. There are some staff, as I understand it, who had grandfathered increments under the enterprise agreement but I understand they have now received their last increment and so, from this time on, they are now linked into the company rate and the normal methods of increase.
PN3963
Okay. In terms of the following bullet point there - - -
PN3964
THE COMMISSIONER: Can I just ask you to pause for a moment, sorry. I thought you indicated that there was something covered by the certified agreements that permitted a staff member to challenge their wage assessment within the structure. Was I correct?---I am happy to have a look - flick through and - - -
PN3965
Perhaps if I can hand them down to you, the infrastructure of services and wholesale is the first one?---Commissioner, in this agreement it is clause 12.1.2 and perhaps if I just read it out.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3966
Yes?---
PN3967
Should the parties to this agreement be unable to reach agreement on the appropriate grading of new jobs the matter will be referred for review to a review team consisting of an external consultant expert in Telstra's job evaluation and classification system, a Telstra representative, and a nominee of the union, a majority of the three-person team will determine the outcome and this outcome will be binding on the parties to this agreement without recourse to any further review or appeal.
PN3968
Yes, now that goes to a transition phase, doesn't it, more than if somebody says: look, I think you have got my classification wrong, you have classified me as X and I think that is wrong. There is not an - other than your "fair treatment" process there is not a process that deals with that under the agreement is there?---I am just trying to - in my experience, we have in - I can recall circumstances where we have referred staff to this process.
PN3969
I see. Am I right in my reading of that that it is really in relation to the transition to the new workstreams? Because that is the collaborative approach you have set up to make sure you get it right in the first instance and then it goes on, it says:
PN3970
Core jobs will not be changed, reviewed or altered except by agreement between the parties and without the involvement of any third party.
PN3971
?---Certainly the bulk of the transition occurred at the start - - -
PN3972
Yes?--- - - - and it also started in the '98/2000 agreement you will see on the right hand side - sorry, I am looking at the wrong bit. It also started in 98/00 agreement the largest number of staff would have had issues on transition. Now it is simply a case of, I suppose, a staff member's duties changing and as a result they say: I believe I should be a higher band within the work stream.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3973
Yes, but you wouldn't expect such a grievance to be dealt with in accordance with 12.1 would you?---I am not 100 per cent sure on that issue.
PN3974
Or maybe 12.2, no?---I don't - I think I would probably agree with you that this more - would have been intended to apply to the mass conversation of many people - - -
PN3975
Yes, yes?--- - - - and that in fact the fair treatment procedure would be likely to be applied in the event that a staff member felt they were - - -
PN3976
Aggrieved in terms of their position in the salary scale?---Yes. Having said that it wouldn't surprise me if this process was suggested as a way of resolving that issue but whether or not it is a requirement in that circumstance I am not sure.
PN3977
You see, it seems to me that 12.1, it is only a brief reading, is directed to positions not people, and that you are - have a consultative arrangement to settle the core job descriptions rather than an issue where somebody says that: I just think I should be promoted?---Yes.
PN3978
Thanks.
PN3979
MR RICH: Can I just clarify the CPSU is not a party to these agreements?---No, they are not.
PN3980
There has been litigation - - -
PN3981
THE COMMISSIONER: Well known to me, Mr Rich.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3982
MR RICH: Yes. There has been a settlement of litigation agreement which has allowed that the CPSU will be consulted under the agreement and can use the disputes settlement procedure. Is that right?---I haven't looked at the - there is a deed.
PN3983
Yes?---I haven't looked at it for a while but as I recall, it was agreed that the CPSU would be able to exercise the disputes procedure under the enterprise agreement as though it were a party, however, in respect of consultation that Telstra would provide the CPSU with documentation regarding a particular issue at the same time it would provide that documentation to other unions, however, there was no agreement that Telstra would actually extend to the CPSU the actual right to consult.
PN3984
Now, there is no recognition that CPSU could take part in a procedure unless under 12.1.2?---That was the third element of the settlement. Again, I can't specifically remember the outcome of that but I do remember that it was a third element of the deed which covered that issue.
PN3985
So did I point to you that the deed says that the union doesn't have any rights under that clause - the CPSU doesn't have any rights under that clause 12.1.2. Does that sound like that might be right to you?---I - you have the deed and that is what is in it then I am happy to be guided.
PN3986
Okay, that's fine. I can produce a copy of the deed?---No, I am sorry, I just can't recall that third element. I know it was around that issue.
PN3987
I don't know what time you want to finish this afternoon Commissioner.
PN3988
THE COMMISSIONER: 4.15.
PN3989
MR RICH: 4.15, right.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN3990
THE COMMISSIONER: Unless you have a pressing need.
PN3991
MR RICH: No, no, there is nowhere better to be at the moment. Okay, I want to take you to this paragraph 21 of yours where you talk about changes in Telstra management.
PN3992
THE COMMISSIONER: Just a moment.
PN3993
MR RICH: Sorry, the second 21.
PN3994
THE COMMISSIONER: Yes.
PN3995
MR RICH: You indicate that there is a - that there have been a lot of mangers lost from the business involved in the large turnover of - - - ?---I don't know if it is a lot.
PN3996
One thousand managers in 2 years is a fair number as we have indicated, given the numbers of the staff that has been lost?---I am not sure that I did indicate that.
PN3997
I am sorry, in your previous answers you we were talking about the 10,000 people that were lost?---Yes.
PN3998
We talked about the number of mangers in the company trying to work out what the number of managers might have been?---Okay, I am sorry, I didn't mean to mis-lead you. I don't know if it is a thousand managers.
PN3999
It might be expect that the proportion of people who have left the company if there is a division between managers and frontline staff might be in the same sorts of proportions as they exist in the company as a whole?---I know the managers numbers have been reduced but I don't know whether the ratio is exactly level - - -
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN4000
I am not saying exactly but it might be a fair assumption to make the way the job cuts have taken place?---I don't know that that is a fair assumption, no.
PN4001
No?---I think it depends on the business. Some businesses the levels of management may be significantly more, some may be less. I don't know.
PN4002
Right, okay. There is no much we can say about the number of managers. Would it be fair to say that - I guess we need to first whether - worthwhile going to ask you what these many more extensive changes are you referred to. Are you saying that the changes you have referred to already aren't extensive or - - - ?---I think they are but - - -
PN4003
There are many others you didn't mention?---Well, I don't think it is unknown to anybody who has got shares in Telstra as to the massive changes in the business over the preceding 5 years. I obviously haven't recorded each and every one of them.
PN4004
Presumably you are referring to - you are relying on the changes you have outlined in paragraph 20 in the first paragraph 21?---Yes.
PN4005
So when you are talking about many more extensive changes you are not really - there is nothing more that you can add to what you have already got there in terms of the changes you are talking about are there? I just want to clarify this?---Yes, I can't think of any more off the top of my head but I am sure that if I went back to the businesses and asked for an absolutely detailed list of them I would get more.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN4006
You are relying upon those that are in your statement when you are talking bout whether managers are experienced and the reasons for their experiences. You are relying on the changes that you have outlined?---The purpose of listing the changes is as an example of the types of changes within Telstra and the purpose of those examples is - and coupled with my own exposure with Telstra managers is to indicate that that within the business there are - there have been extensive changes and that managers are really quite experienced in managing change within the business and certainly, in my own experience, there are significant resources to communicate with staff to ensure that people are assisted with the changes and mangers have experience in helping staff and helping the business in making change.
PN4007
Right, okay. So are you equating the fact that there have been a lot of changes in the fact that mangers have gone through change would the fact that they are experienced at managing it?---Well, I am also saying, from my own experience coming into Telstra. There is a high level of experience in managing change because - and I am making an assumption that it is because there has simply been so much of it in the last five years and managers and staff have had a significant exposure to reform of the business.
PN4008
Okay, and you were saying that - you are presumably saying that they are all good at managing change, you say they have experienced it?---In terms of examples, they produce communications packages for staff.
PN4009
Are we talking about HR people here?---No, line mangers.
PN4010
Right?---They have team briefs with their staff about changes that have to occur, they prepare presentations for their staff, questions and answers. Often you don't see that in other businesses who don't engage in a lot of change but in Telstra it is just part of the landscape that staff need to be informed and effort needs to go into ensuring that the change is managed.
PN4011
So presumably that it is more indicative of the fact that there are Telstra policies about managing change. Is there a requirement that there be presentations, team briefs, all that sort of thing?---I haven't seen a policy on change.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN4012
No?---But I think it is fairly well accepted within Telstra that if changes have to be made then the staff will be fully informed.
PN4013
Right, okay. If individual staff have issues with the way that change is being managed then they take it through the fair treatment process? If they have issues with the way that change is affecting them then they take it through the fair treatment process or - is that the way it works?---It will depend on the change that is being made.
PN4014
Right, okay. So a decision to make someone redundant or a decision to make a position redundant or to - that sort of thing?---In terms of redundancy, the staff member, if it is in respect of say, selection, which is not contained in the redundancy agreement then the fair treatment process is normally used to seek a review of selection, however, if it is a general dispute about whether a redundancy situation exists then usually the disputes procedure within the redundancy agreement is utilised.
PN4015
Or a restructural decision that a position should go from one group to another group or the position should change its duties slightly, those sort of decisions?---The former may or may not be fair treatment or redundancy agreement depending on the circumstances. The latter that duties change slightly I would imagine would be an individual issue. A little bit similar to what we have discussed earlier.
PN4016
Right. Now, so when you are saying that managers are good at managing change you are talking about, in your view, they are good at knowing that they have to inform employees about what is going on. Is that what you mean?---I think they are alive to the issues of change and there are resources there to assist them such as human resources, communications people who are there to assist them in ensuring that their staff are fully informed of the changes and that their concerns are dealt with.
PN4017
So now you are talking about human resources managers who are sort of managing the change from above in terms of giving advice to managers on how to manage?---No, they work with the managers and - in managing the change process.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN4018
Right, and their advice is required - it is okay. Can I take you briefly to paragraph 28 of your statement which talks about lost working hours?---Yes.
PN4019
I know Mr Parry asked you a question about Mr Spicer and he said that he didn't know anything about that?---Yes.
PN4020
You were in the Commission when Mr Evans was giving evidence about this?---Yes.
PN4021
Do you deny that there was action taken?---I am guided by - - -
PN4022
So you accept what Mr Evans says?---Well, no, I am guided by - I guess if I went and looked at the file on it and so forth. I am - I can't comment whether it was taken or not all I can say is that our payroll people didn't call it if it did.
PN4023
Okay, how do your payroll people record time lost do you know?---If there is time lost due to industrial action the manager concerned has a - I think it is either a pro forma that lists out those involved in the action and the time that was lost. That form along with the normal time sheets and so forth goes to payroll and payroll will then, for the purposes of non-payment of the staff involved with code the hours lost to industrial action as hours lost.
PN4024
So it relies upon a manager in the first instance determining if they should be paid or deciding to send the relevant forms to payroll?---Yes, it's part of Telstra's processes.
PN4025
Would you imagine there would be circumstances where there might not happen?---Yes.
PN4026
So there may have been other time lost or there may have been other industrial action that hasn't been reported in the time lost?---I'm sure there would be instances where the manager's not put a form in but I don't think they would be significant.
**** BENJAMIN RODNEY WICKS XXN MR RICH
PN4027
You have got no basis for making that comment because you just don't know how significant they might be?---Well, the Telstra process is that they have - they are required to record lost time due to industrial action. So - - -
PN4028
But you recognise that it might occur that they don't record all time lost and you have non way of knowing whether that's a significant amount or not?---In my experience - I agree with you, but in my experience managers are generally aware of these policies and so forth.
PN4029
Is this your nine months in Telstra?---Plus the time that I was in the human resources counsel position.
PN4030
When you were working for Freehills?---Well, I was - that was - I was working for Freehills during those nine months, eight months or whatever. So I've had more exposure.
PN4031
You were consulting with Telstra HR during those periods?---I was working within Telstra until - yes.
PN4032
THE COMMISSIONER: Is that a convenient time, Mr Rich?
PN4033
MR RICH: Yes, Commissioner.
PN4034
THE COMMISSIONER: 10 o'clock tomorrow.
PN4035
MR RICH: Yes.
PN4036
THE COMMISSIONER: I will adjourn till 10 o'clock tomorrow.
ADJOURNED UNTIL WEDNESDAY, 22 MAY 2002 [4.20pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #J10 DRAFT ORDER PN3245
EXHIBIT #J11 AMENDED APPLICATION PN3250
MICHAEL CROSBY, SWORN PN3251
EXAMINATION-IN-CHIEF BY MR RICH PN3251
EXHIBIT #J12 STATEMENT OF M. CROSBY PN3258
CROSS-EXAMINATION BY MR PARRY PN3266
EXHIBIT #W20 TRANSCRIPT PN3325
EXHIBIT #W21 WORKERS ON-LINE DOCUMENT PN3368
EXHIBIT #W22 ARTICLE BY MR CROSBY ENTITLED
RE-EXAMINATION BY MR RICH PN3443
WITNESS WITHDREW PN3460
EXHIBIT #W23 OUTLINE OF SUBMISSIONS PN3468
BENJAMIN RODNEY WICKS, SWORN PN3471
EXAMINATION-IN-CHIEF BY MR PARRY PN3573
EXHIBIT #J13 TWO FAX DOCUMENTS PN3605
EXHIBIT #W9 DOCUMENT PN3612
EXHIBIT #W24 STATEMENT OF MR WICKS PN3625
CROSS-EXAMINATION BY MR RICH PN3646
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