C2002/908, Transcript of Proceedings [2002] AIRCTrans 2077 (11 June 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
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TRANSCRIPT OF PROCEEDINGS


O/N VT04188

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2002/908
C2002/1076

THE COMMUNITY AND PUBLIC SECTOR
UNION

and

TELETECH INTERNATIONAL PTY
LIMITED and ANOTHER

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

MELBOURNE

10.08 AM, MONDAY, 27 MAY 2002

Continued from 27.3.02

PN107

THE COMMISSIONER: Any changes in appearances?

PN108

MR R. DALTON: Yes, there is, Commissioner. Mr Tuck appeared for Sitel when the matter was last before you on 13 March and I appear in his place.

PN109

MS A. PARKES: I seek leave to intervene on behalf of the NUW in relation to both matters before you, Commissioner.

PN110

THE COMMISSIONER: Thank you. Is there any objection to the application for intervention? Leave is granted, Ms Parkes. Now, yes.

PN111

MS B. TKALCEVIC: I seek leave to intervene on behalf of the ACTU in the matter.

PN112

THE COMMISSIONER: Any objection to that application? Leave is granted. Yes, Mr Jones.

PN113

MR S. JONES: I also advise that I am joined at the bar table by MS G. DRUMMOND, who has not appeared with the union before.

PN114

THE COMMISSIONER: Now, has there been any discussion about how we should proceed today?

PN115

MR JONES: Yes, there has, Commissioner. Perhaps could I advise the Commission that I have received a phone call from my colleague, Mr Nucifora of the ASU, who due to transportation difficulties beyond his control, has advised me that he will be about 10 or 15 minutes late.

PN116

THE COMMISSIONER: Okay. He has given you authority to speak on behalf of the ASU, has he?

PN117

MR JONES: He has given me authority to say as much as I have, if the Commission pleases.

PN118

THE COMMISSIONER: Very well.

PN119

MR JONES: There has been some discussion amongst the union parties and myself and Mr Dalton as regards to how we should proceed this morning, and if the Commission pleases, it is agreeable to Mr Dalton and myself that we at first deal with his objection to the adjournment of the finding of dispute against his client, Sitel.

PN120

THE COMMISSIONER: Yes.

PN121

MR JONES: That is agreeable to the union and Mr Dalton, I understand, if it is agreeable to the Commission. The Commission would be aware that there has been some discussion since the last hearing of this matter, indeed, since directions were issued. The outcome of those discussions has been amongst the ASU and CPSU a proposal for a process to reach agreement and settlement of actual or potential demarcation disputes, and a copy of a proposal for a process to settle those disputes has been forwarded to the Commission, amongst others.

PN122

A crucial aspect in that proposal is that the CPSU, for its part, adjourns its application to have - its notification and seeking a finding of industrial dispute against three of the named respondents to our letters of demand, namely, UCMS, or United Customer Management Services, Sitel and Salmat. It is relevant that neither UCMS or Salmat are here today to press any objection against that course of events. In respect of Sitel we say this, Commissioner, that we have an obligation statutorily imposed upon us to notify the Commission of an industrial dispute pursuant to section 99 of the Act, as soon as we are, as an organisation, aware of the existence of such a dispute, and our notification is further to that statutory obligation.

PN123

We have reached an agreement with the ASU. We do not - and we advise the Commission that we do not withdraw the claims against any of the three companies, including the company that Mr Dalton represents, Sitel. The fact that we do not pursue any organising activity, or recruitment - further recruitment activity, in each of these three companies, in no way affects the facts that the union as a body corporate believes that there exists an industrial dispute pursuant to those logs of claims. And we continue to have an industrial interest in the terms and conditions of employment that those three employers offer to their employees.

PN124

There is a community of interest between our members and potential members, and the employees of that company, at the very least, and there is ample High Court authority to attest to the fact that the union in circumstances like this can maintain an industrial dispute, irrespective of whether it pursues any, on the ground, organising activity. For those reasons we seek leave of the Commission to have the matter adjourned, but not withdrawn, against Sitel, and UCMS and Salmat, if the Commission pleases.

PN125

THE COMMISSIONER: Thanks. Mr Dalton.

PN126

MR DALTON: Commissioner, I take it you are familiar with the basis upon which the ASU and CPSU have agreed to deal with the demarcation dispute based on that document.

PN127

THE COMMISSIONER: Yes, it is a 111AA agreement, as I understand it.

PN128

MR DALTON: Yes, and it is really that the basis of that agreement, that is, the basis for my client's objection to the application by the CPSU for an adjournment of these proceedings. Of course, my client is pleased that the ASU and CPSU have reached agreements on the live and let live basis upon which they will organise members in the relevant industries. But as you may know from 13 March when Mr Tuck gave some brief submissions for Sitel he mentioned that Sitel is a 300 seat call centre based in Sydney and it does call centre work for a number of different clients.

PN129

The think the only connection that has been drawn relevantly for CPSU purposes is the fact, I think, that Sitel did the work for Telstra's share offer a couple of years ago. There is nothing in any of the other materials suggesting that Sitel has any further connection with the telecommunications industry, and Sitel does not emanate from Telstra. It is not an old Commonwealth body, or old telecommunications body that has outsourced its centre functions. It is a stand alone call centre service provider.

PN130

It is a party to a 170LJ agreement with the ASU, and you might recall on 13 March the ASU, as intervener, specifically pointed to its industrial agreement with Sitel as the basis, or one of the bases upon which it was an interested party. And so the ASU asked for time, I think, to have an opportunity to try and reach agreement with the CPSU as to how they could reconcile their demarcation dispute, and that is the proposed section 111AA recommendation that is before you.

PN131

My client thinks that it is unsatisfactory for the CPSU just to seek the indefinite adjournment of its section 99. If it comes to the Commission and asks the Commission to exercise its statutory function, which is to, I guess, decide whether or not a dispute exists, in my submission can't then simply ask the Commission to put that on hold indefinitely, and at the same time put a proposed recommendation to you that in essence says that it doesn't propose to press a dispute finding with my client, but it is leaving open its right to I guess press a dispute finding at a later stage. And it seems that the CPSU might be disposed to doing that if Sitel gets new and significant outsourcing by the Commonwealth or by the telecommunications industry. You will see that in clause 5 of the proposed recommendation.

PN132

There is no material before you to say that Sitel has an imminent contract for outsourcing call centre work with the Commonwealth or the telecommunications industry that might justify the Commission to leave this file open for a period, or subject to a report back within a specific period of time. So what, in essence, you are being asked to do is to just leave a section 99 on the Commission's file indefinitely. My client is not prepared to agree to that request. It leaves things too much for uncertainty, and particularly in circumstances when the CPSU, of course, has every right to file a section 99 notification of dispute where a proper basis exists for it to press one against my client based on the agreement it appears to have reached with the ASU.

PN133

So for that reason, Commissioner, there either is a basis for you to hand down a decision today saying that you are not satisfied there is an industrial dispute between my client and the CPSU at this stage, or you can dismiss the request for a dispute finding under section 111(1)(g) on the basis that it is not desirable at this stage in the public interest for you to leave this particular proceeding on the Commission's file. Those are the submissions in support of, I think, probably the section 111(1)(g) decision, Commissioner, that the more satisfactory way of dealing with this in the interests of certainty is to either formally refrain from further dealing with it, or to dismiss it today. But of course recognising that the CPSU does have rights in the future to file as fresh section 99 when the appropriate facts are in existence. If the Commission pleases.

PN134

THE COMMISSIONER: Could I just ask, Mr Dalton, 111(1)(g) application if I refrain from further hearing it, as I apprehend the position with 111(1)(g), an application could be made tomorrow for me then to hear it the following week. I would have to put a time frame on it, wouldn't I?

PN135

MR DALTON: Well, I think that - - -

PN136

THE COMMISSIONER: If I dismiss a matter, that is another question, but if I refrain from further hearing that is not an unlimited decision unless there is some - well, it is not, when I say "unlimited", it is not one that holds for all time.

PN137

MR DALTON: It may not, and often the refrain from further hearing is linked to a party's conduct which may be for a temporary period. So in these circumstances, based on the reasons that I have put to you, yes, dismissal of the application for a formal dispute finding is the proper course to take.

PN138

THE COMMISSIONER: Yes, I follow. Mr Jones. Yes, Mr Nucifora.

PN139

MR J. NUCIFORA: Sorry, Commissioner. I apologise for my lateness. I appear for the Australian Services Union.

PN140

THE COMMISSIONER: Thank you very much. Mr Jones has already put submissions on behalf of your union. Just to say that you were running late, that is all, in case you are nervous.

PN141

MR NUCIFORA: I trust that on a Monday morning they are all in order, Commissioner, the submissions.

PN142

MR JONES: My submissions in reply are brief. The claims for wages and conditions that the CPSU makes are good, and arise in part out of the industrial interests that the CPSU has for its current and future members to ensure that a standard of wages and conditions that we believe to be fair and decent persist in the contract call centre industry, because this is the industry which is competing on a daily basis for the work which our members currently employ. I have already said that there is ample authority of this Commission and the High Court to say such claims are good in and of themselves.

PN143

In relation to whether the Commission has a course of action ultimate under section 111(1)(g) my submissions in reply is this, that there is a bar on the Commission dismissing a matter such as this without having moved to finding an industrial dispute, and - - -

PN144

THE COMMISSIONER: Yes, go on, which decision?

PN145

MR JONES: Well, section 111AA, we submit.

PN146

THE COMMISSIONER: Yes.

PN147

MR JONES: The history of this section of the Act is well known to the Commission.

PN148

THE COMMISSIONER: That is right.

PN149

MR JONES: So I do not believe that will give Mr Dalton or his client any joy if the Commission were to take that course of action. We then consider the alternate course of action proposed by the union. We ask the Commission to consider two things. Firstly, quite apart from the jurisdictional basis of the course of action that we provide, there is no disadvantage to Mr Dalton's client. Place against that the public interest is well supported by the course of action that we propose because the course of action that we proposed, the adjournment, is part and parcel of an agreement reached between two unions which goes a long way to settling - or certainly to settle any current and proposes the course of action for settling any future demarcation disputes. That is clearly in the public interest that such an agreement be supported by this Commission in the process that we propose which would settle any further demarcation disputes, certainly in the public interest.

PN150

And for that reason an adjournment which creates no disadvantage to Mr Dalton's client, and certainly in the interests of what we say are the public interest, and the other parties to these proceeding, should be adopted. If the Commission pleases.

PN151

THE COMMISSIONER: What I propose to do is this. I think it is appropriate for Mr Dalton's client to want some level of certainty in the matter so I am going to adjourn Sitel's matter and adjourn it on the basis that it will not be re-listed any earlier than 1 January 2003.

PN152

MR JONES: If the Commission pleases, if the Commission is minded to make - I do not know if that is a formal direction, how the Commission decides to go down that course of action, but the CPSU would seek leave to apply on short notice were a series of events as contemplated in paragraph 5 of the document referred to by Mr Dalton to arise. Apart from that we are quite happy to put our hands at the discretion of the Commission and have the matter held over until 1 January 2003.

PN153

THE COMMISSIONER: Well, it is always open to somebody to seek a re-listing of the matter, and argue as to why it should be reopened. That is the basis of the decision and that provides then some certainty to your client, Mr Dalton, that they will not have to trouble themselves at least until next year. All right. Now, you are excused, if you wish, Mr Dalton.

PN154

MR DALTON: If the Commission pleases.

PN155

THE COMMISSIONER: Thank you very much. Do you want to adjourn into conference now, do you?

PN156

MR JONES: If the Commission pleases.

PN157

THE COMMISSIONER: Thank you.

SHORT ADJOURNMENT [10.27am]

RESUMED [10.49am]

PN158

THE COMMISSIONER: Now, I have conferred with the parties about the future progress of this matter, and it seems that there has been a meeting of minds which will permit a finding to be made and an adjournment to be granted in relation to three of the respondent employers. An approach has been adopted which appears to be me to be both inventive and sensible, but I will allow the parties to deal with that matter. Mr Jones.

PN159

MR JONES: If the Commission pleases, the parties have had the opportunity to put in writing the substances and processes agreed in discussions and I would like to tender that, if the Commission pleases.

PN160

THE COMMISSIONER: Thank you.

EXHIBIT #CPSU3 AGREEMENT BETWEEN THE CPSU AND THE ASU PERMITTING THE ADJOURNMENT OF THE MATTER INVOLVING UCMS, SITEL AND SALMAT PTY LTD

PN161

THE COMMISSIONER: This is an agreement between the CPSU and the ASU which would permit the adjournment of the matter involving UCMS, Sitel and Salmat Pty Ltd on the basis that should an issue which creates a controversy in relation to possible potential coverage then the matter would be resolved but firstly through the actu and then secondly by way of binding recommendation from the commission pursuant to section 111AA.

PN162

Could I deal with two matters. Firstly, Mr Jones, paragraph 10(iii), you have got an agreed AIRC Commissioner, can I take that it is really intended to be "member" rather than limiting it to - - -

PN163

MR JONES: The parties mean any member of the Commission.

PN164

THE COMMISSIONER: Any member, yes, thank you. And it is also appropriate that I hear from the ACTU, Ms Tkalcevic, to see whether or not the ACTU is supportive and content to participate at the agreement says.

PN165

MS TKALCEVIC: Thank you, Commissioner. The ACTU seeks leave to intervene in this matter, and the ACTU supports the position of the CPSU and the ASU in the settlement, and considers the settlement of objections a very productive development with respect to union coverage in the call centre industry. The ACTU considers the settlement to be an important contribution to the clarification of union coverage in the contract call centre industry.

PN166

The ACTU supports the Commission making recommendations giving effect to the settlement reached between the ASU and CPSU with respect to coverage of employees in the Salmat, Sales Force, Sitel, TeleTech and UCMS contract call centres. The settlement they have reached is consistent with the ACTU contract call centre coverage protocol which is, I note, contained in exhibit CPSU3, schedule 1. The ACTU believes the recommendations giving effect to the settlement will be beneficial to the CPSU and ASU, other unions with call centre coverage, and to both employees and employers in the industry. And further the making of such recommendations will promote certainty and stability of union activity in the industry.

PN167

Commissioner, the call centre industry, and contract call centres in particular, are an emerging industry and growth area for employment in Australia. The ACTU has identified this area as an important area for unions to work to improve conditions of employment for employees, particularly in the contract call centre industry where lack of adequate minima has led in some instances to substandard conditions. The ACTU views that there is, of course, potential for coverage dispute and traditional areas of coverage may not necessarily apply in this growth area.

PN168

In these circumstances the ACTU strongly commends the resolution which the CPSU and ASU present to the Commission today, at least some of those issues, and that is our brief submission to the Commission.

PN169

THE COMMISSIONER: Thank you very much. Mr Nucifora.

PN170

MR NUCIFORA: Thank you, Commissioner. The ASU concurs with the submissions put by Mr Jones on behalf of the CPSU and Ms Tkalcevic on behalf of the ACTU, and we would like to indicate that the ASU certainly supports and we have indicated that by the National Secretary signing CPSU 3 of the agreement between the ASU and the CPSU in relation to this matter before you. We also, Commissioner, concur with the clarification of paragraph 10 in relation to the member of the Commission as explained by Mr Jones. And we say this agreement, given that our unions have had conflict in different areas over the years, that the agreement reflects the reality and, I guess, two organisations seeking their response in relation to dealing with that interface between private sector and public sector employment, employment was just becoming increasingly - and that not only seeking to deal with the matter before you, but also the future of what - the changing circumstances, in particularly the call centre industry. If the Commission pleases.

PN171

THE COMMISSIONER: Thank you very much, Mr Nucifora. Yes, having examined the agreement and having heard from the ACTU it is clear that the parties have turned their mind to one of the first areas that the Commission is required to be satisfied if it was to make an recommendation by consent, namely, whether there has been a genuine attempt to agree about those aspects of the matter. The parties have put in a place a structure and procedure which is designed, it appears to me, to demonstrate that a genuine attempt has been made.

PN172

Now, that is not to prejudge the matter. If it comes to a member of the Commission they will still have to be satisfied. But it seeks to utilise all avenues for a constructive resolution of, no doubt, what would be a difficult problem. Now, on that basis I am prepared to adjourn the applications in relation to UCMS, Sitel and Salmat. In relation to Sitel I made an earlier ruling which stands, but I will also have a copy of this transcript forwarded to Mr Dalton so that he is also aware of the process that would be followed by the parties in the event that any agitation is sought in relation to the application to Sitel. Now, in relation to the two remaining matters, Mr Jones, Teletech and Sales Force.

PN173

MR JONES: Commissioner, I have had the opportunity to confer with solicitors for Teletech.

PN174

THE COMMISSIONER: Yes.

PN175

MR JONES: And if I could tender a copy of a document which is a draft finding of dispute.

PN176

THE COMMISSIONER: A draft finding of dispute.

EXHIBIT #CPSU4 DRAFT FINDING OF DISPUTE

PN177

MR JONES: Thank you, Commissioner. Commissioner, I can inform you that the terms of this finding of dispute are ones which are uncontroversial to the employer respondents, and on that basis we would seek the Commission's agreement to making a dispute finding in these terms.

PN178

THE COMMISSIONER: Thank you. Any other submissions sought to be made in relation to that matter? Very well.

PN179

MR JONES: I might just note, Commissioner, that in earlier proceedings we tabled a draft finding of dispute which has been exhibited as CPSU2, I understand, and we no longer press that.

PN180

THE COMMISSIONER: Yes, thank you. Mr Jones, I will not be finding a dispute in relation to clause 23, union preference. I do not think you have got automatic deduction of union dues in here. My recollection is that there is something about if the employee agrees, it is a facilitative provision, isn't it?

PN181

MR JONES: If I could be heard on those matters?

PN182

THE COMMISSIONER: Yes.

PN183

MR JONES: Firstly - in relation to the first we believe these are claims that the union can properly make.

PN184

THE COMMISSIONER: Yes.

PN185

MR JONES: They are, in any event, severable and discrete claims within the context of the log of claims in relation to the deduction of union dues that is contingent upon the agreement of the relevant employee.

PN186

THE COMMISSIONER: Yes. Well, pursuant to section 101 of the Act I find there exists an industrial dispute on the one hand between the CPSU, the Community and Public Sector Union and on the other hand TeleTech International Pty Limited and Sales Force Pty Limited. The dispute arises from a log of claims attached to a letter of demand dated 4 December 2001. The dispute will be found in all matters contained in the log with the exception of demand 23, Union Preference.

[11.01am]

PN187

The extension of time of the dispute between Teletech International Pty Limited and Sales Force Pty Limited will be in relation to the employment of persons as customer service representatives or telephone operators, or as a supervisor of a customer service representative or telephone operator, in any part of the business which performs a call centre function for the Commonwealth, the Northern Territory, the Australian Capital Territory or Telstra Corporation Limited, in addition, or to the extent that Teletech International Pty Limited or Sales Force Pty Limited employ persons who are employed in the telecommunications industry as defined by Part 3E of the CPSUs eligibility rules.

PN188

Now, Mr Jones, you wish to foreshadow two applications, one for joinder and the other for an award.

PN189

MR JONES: If the Commission pleases. Perhaps it is most appropriate if I seek that this matter be relisted for hearing of an application by the CPSU, and I assume at the same time other unions will seek to intervene, or be directly represented in that matter. We foreshadow at this stage that we will be seeking the making of an interim award to deal with at least dispute avoidance and settlement procedures and national training wage.

PN190

In relation to the second of those matters, there are large numbers of trainees employed by call centres in this industry and by these companies, and in particular insofar as these employees operate in the State of Victoria, there is no safety net award governing the terms and conditions of employment for those trainees. So we believe that the earliest possible available date for the Commission, we would seek a re-listing of those matters, to deal with those matters, and perhaps some directions from the Commission in relation to the making of a final award.

PN191

It would be appropriate that at the listing of such matters it would be listed at the same time as the finding of a dispute between the ASU and the same group of companies represented in this matter, and from the CPSUs part we would also seek that a finding of dispute between the CPSU and the AIG in respect of the call centre industry also be listed. If the Commission pleases, the case number for that matter is 458 of 2002.

PN192

I am unable to assist the Commission with the case numbers for the other matters, but perhaps Mr Nucifora can assist the Commission there, as they all deal with the same industry and the same employers, and as Mr Tkalcevic has said, this is an emerging industry which is operating without the benefit of a safety net award. It is appropriate that these matters be brought on for the settlement of this dispute as soon as possible.

PN193

THE COMMISSIONER: Thank you. Are you aware whether or not the making of an award in the terms you have foreshadowed will be opposed?

PN194

MR JONES: I am unable to assist the Commission with that.

PN195

THE COMMISSIONER: Well, my associate will contact you with a proposed date. That date will provide sufficient time for you to serve on the respondents a copy of the award that you propose, and if you are able to indicate to me whether the award will be opposed or consented to, that will give us a good idea of when we can list it.

PN196

MR JONES: If the Commission pleases. I think it would also be appropriate that the interveners to today's matter also be notified of the listing of that matter as well. If the Commission pleases.

PN197

THE COMMISSIONER: Once people are in, they get notified. I hope we don't have to drag you to somewhere like Magnetic Island. Anything further?

PN198

MR JONES: No.

PN199

THE COMMISSIONER: Thank you for your - yes, Mr Jones, thank you for your assistance. The matter is adjourned sine die.

ADJOURNED INDEFINITELY [11.06am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CPSU3 AGREEMENT BETWEEN THE CPSU AND THE ASU PERMITTING THE ADJOURNMENT OF THE MATTER INVOLVING UCMS, SITEL AND SALMAT PTY LTD PN161
EXHIBIT #CPSU4 DRAFT FINDING OF DISPUTE PN177