C2002/2547, Transcript of Proceedings [2002] AIRCTrans 2188 (13 June 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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


O/N VT04280
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2002/2547

COMMUNICATIONS, ELECTRICAL,
ELECTRONIC, ENERGY, INFORMATION,
POSTAL, PLUMBING AND ALLIED
SERVICES UNION OF AUSTRALIA -
COMMUNICATIONS DIVISION - VICTORIAN
TELECOMMUNICATIONS AND SERVICES BRANCH

and

TELSTRA CORPORATION

Notification pursuant to section 99 of the Act
of a dispute re failure to act consistently
with the Telstra Redundancy/Redeployment
agreement

MELBOURNE

12.04 PM, FRIDAY, 31 MAY 2002

PN1

MR L. COOPER: I appear on behalf of the CEPU.

PN2

MR P. SHORTAL: I appear on behalf of the Telstra Corporation together with MR D. THOMSON and MR D. TRINDADE.

PN3

THE COMMISSIONER: Yes, Mr Cooper.

PN4

MR COOPER: Commissioner, we notified a dispute on this matter on 18 May and we notified it at the time because we became concerned at what appeared to us to be disregard by Telstra of aspects of the redundancy agreement and the redundancy processes. And this occurred in regard to one of our members, Mr Gary Wills, who is employed in the area known as Customer Contact Solution, which is an IT area in Telstra. Mr Wills was identified as surplus to requirements in October 2001. He has been going through the process of job search as required by the Telstra CEPU redundancy agreement.

PN5

Telstra claims it was unable to place Mr Wills in another position despite the job search and during March 2002 Telstra began the process of making Mr Wills redundant. Mr Wills appealed against that decision and in line with the redundancy agreement a management initiated redundancy review board heard Mr Wills appeal on 21 May and Mr Wills appeal was upheld by the board. One of the issues that disturbed us in the treatment of Mr Wills was the apparent failure by Telstra to deal properly with Mr Wills as a redeployee as required by Telstra CEPU Redundancy Agreement, and obviously this has considerable impact on the rest of our membership. I refer to copies of the redundancy agreement and I would like to submit one of those as an exhibit, if I may, Mr Commissioner.

EXHIBIT #CEPU1 REDUNDANCY AGREEMENT

PN6

MR COOPER: And I just want to take you to relevant sections of the agreement that we will be discussing. If you go to page - I will give you page number because it is a fairly extensive document, page 10. If you look at 1.2(4), 1.2 section 4 says:

PN7

Involuntary redundancy from Telecom only where there is no reasonable alternative employment available for those whose jobs are no longer required.

PN8

And 1.4, just a bit further down says:

PN9

The arrangements set out in this agreement provide the voluntary retrenchment in all circumstances ...(reads)... leading position in the Telecommunications industry.

PN10

And then 4.8, which is over the page, page 11:

PN11

Where relocation, redeployment and/or retraining is he occupants preference Telecom will take all ...(reads)... indicates that this is not necessary.

PN12

Just a couple of lines further it says:

PN13

Where there is a vacancy which would permit the redeployment, relocation, retraining of an employee ...(reads)... retraining and relocation.

PN14

And it refers there to a restriction which means, in the end, Telstra can decide which skills it wants to keep and which not. So it is virtually a swaps mechanism, that last part of that paragraph. Then on 4.9 it says:

PN15

After one month investigation of all available options, or sooner if agreed, Telecom may initiate a redeployment ...(reads)... receipt of necessary training and experience.

PN16

And then finally, 5.3.1 says that:

PN17

A minimum three month investigation of suitable redeployment, relocation opportunities has proceeded across all designation categories of the corporation.

PN18

We think there are at least three very strong conclusions to be drawn from these various sections of the agreement, Mr Commissioner. One is that a strong preference is given to redeployees in job selection. In fact, section 4.8 says, in part, that the redeployee will be selected:

PN19

...will be selected unless assessed as not competent for the job.

PN20

(2):

PN21

The redeployee needs to be reasonably capable of undertaking a particular job after -

PN22

I repeat -

PN23

after receipt of the necessary training and experience.

PN24

And (3):

PN25

There can be a swaps mechanism available.

PN26

Now, I wish to have a look at the jobs Mr Wills applied for and the reasons given, or not given, for his non-selection for those jobs. But firstly, I just want to submit a copy of part of Mr Wills CV to give you an idea of his experience, if I may.

EXHIBIT #CEPU2 COPY OF PART OF MR WILLS CV

PN27

MR COOPER: Just to draw your attention to it, you will see that he has - apart from having the basic technical officer training in Telstra, he has had CTI training, Genesis training, QCM Server, Genesis Server, Integrated Converse Voice Signature and a range of IT applied training and experience which will become pretty important as my submission draws on. I wish now to take the Telstra documents which were submitted to the MIR Board which lists the jobs that Mr Wills applied for, and I need to refer to that in some substance.

PN28

THE COMMISSIONER: You say the MIR Board upheld the appeal?

PN29

MR COOPER: It did.

PN30

THE COMMISSIONER: Well, what happened after that?

PN31

MR COOPER: Well, I was going to come to that. So far, the short story is that Telstra is refusing to accept the recommendation.

PN32

THE COMMISSIONER: I see.

PN33

MR COOPER: And I will explain that as we go.

PN34

THE COMMISSIONER: Okay. This is a document which is a number of job availabilities, is it?

PN35

MR COOPER: Yes. Job applications.

EXHIBIT #CEPU3 JOB APPLICATIONS

PN36

MR COOPER: I wanted to, if I could, may take you through these because I think it goes to the heart of whether in fact a redeployee has been given preference under the terms of the agreement that I have read out earlier. This first job, it is position 12626, you will see at the top of the document. And then over the page there is a response headed up, Thomson, David G, that is his manager, you can find the page there.

PN37

THE COMMISSIONER: Yes.

PN38

MR COOPER: And you will see that the central issue there why he was refused the job is that he didn't have current Genesis knowledge and skills, or preferably having completed a GTE, Genesis Services Engineers course. Now, the fact is that this job was right up Mr Wills alley, he had done Genesis courses with a company called Dimension Data during the course of his employment a few years ago, and the Genesis Service Engineers course is not much more than a few weeks and is comparable to the CTI course that Mr Wills had done.

PN39

And we would argue that this job hasn't - sorry, the selection or non-selection hasn't taken the preference for redeployees into account and I remind you that the agreement says "with training and experience." So we believe that with little training and little experience, Mr Wills should have been selected for that job. If we go over to the next job, 12553, and then over to the page which explains why he didn't get the job, it is just headed up, "Reasons for Non Selection." You will see there that they talk about some pre-interview filter.

PN40

Now, I suppose it is a fancy name for reading his CV and his job application, and the come to these conclusions, without interview, and just by reading the CV. He hasn't demonstrated persistently needing and achieving KPIs, we are mystified how they have come to that conclusion. Mr Wills doesn't know of any failing to meet the KPIs measurements in Telstra. It said that he doesn't have good knowledge of Telstra systems such a MICA MMIS and sales logics, our understanding is that those - knowledge of those is days - it only takes days for someone of Mr Wills skills, and he doesn't have highly developed written and verbal communication skills.

PN41

We are not sure how they could test his verbal communication skills via a CV but obviously they have, or they say they have. So we would argue that there is little or no consideration about giving him some training so a redeployee could get the preference he is due in the agreement and he has give no interview to test out those things they say they want and we are mystified how they could reach the conclusions they did, but they did, they say. If we go over to position 12445 and then over a page again, headed up Thomson, David G, it say basically that the position was withdrawn because of organisational changes, but no proof is provided and you would think that they would give some evidence so that the applicant knows that it is not a shonk to stop a redeployee getting a job. Just basically, was it reorganised or was it not?

PN42

Then if we go over to 12325 and then over the page again to the explanation why he wasn't successful, it is headed up Application Support System Analysis, did you get that. The main issue there is oracle skills, paragraph 3, that he didn't have oracle skills. Now, oracle skills are more complex to gain than the earlier skills, by quite a considerable amount, but it doesn't again say why they don't believe that Mr Wills could be trained, again referring back to the agreement, the redundancy agreement, it does put significant emphasis on having redeployees do the job with required training and experience.

PN43

So again we believe the preference for redeployees here has been ignored and again you would think if redeployees would get some preference in Telstra's mind as it should with the agreement, that he should have an interview. Again, there was no interview, like for most of these positions. If you go to 12413 and then over again to the explanation. Now, there is a fairly respectable explanation there why he didn't get the job, but again it doesn't deal with why he couldn't be trained for the job. It just basically says we don't think he can do it. Now, at least he had an interview, as I say, and there is some respect here, but we still don't know why he couldn't be retrained. And 12496 and then over the page again for the explanation:

PN44

Interviews are currently under way. Gary hasn't been selected to participate in these interviews and he is unlikely to succeed because the jobs are significantly over subscribed.

PN45

Well, that is fine, but where is the preference for redeployees. No interview, and they may be oversubscribed, but it might be that Gary is the only redeployee and maybe he should have got the job, in line with the redundancy agreement. And then the next one, 12525, well basically this gives no reason. It just says that update formed the reflectors decision and his skills knowledge have been deemed inefficient. Again that - - -

PN46

THE COMMISSIONER: Sufficient - insufficient.

PN47

MR COOPER: Sorry, yes, insufficient. Thank you. And basically, again we say, no interview, preference for redeployees being ignored again by Telstra. So, we wanted to take the Commission through those because in some respects they go to the heart of the matter we have before us. And in concluding, my comments about that Telstra document, I would say, we again emphasise, where is it demonstrated that they met the preference for redeployees and the requirement to provide reasonable training experience to ensure maximum opportunity to get a job. And again, if you look at 4.8 of the redundancy agreement, it does say:

PN48

The redeployee, or most efficient redeployee will be selected, will be.

PN49

And it adds there:

PN50

Unless he can be shown to be incompetent or not competent.

PN51

And again the section 4.8 says:

PN52

Where relocation and redeployment is a preference, Telecom will take all available steps to secure such an outcome.

PN53

I would like to table now two documents from Telstra's submissions to the MIRB, two versions of a so called fair opportunity letter. Commissioner, if I could just do that in the first instance.

EXHIBIT #CEPU4 LETTER FROM MR WILLS TO MR THOMSON

PN54

MR COOPER: Now that is a fair opportunity letter as a part of the process, standard process, Mr Commissioner, once Telstra believes that there is little or no chance of the redeployee being places, you will see - and they are just a standard form letter in the main, but if you look at the first letter which Telstra says was a mistake, it says, in the second paragraph:

PN55

The redeployment effort has included attempts to identify suitable employment which included referral to nine possible job opportunities.

PN56

So basically it is saying, well, we referred you to nine jobs but you didn't do any good, but then that is a mistake Telstra says, and the next letter says it has been changed, the second paragraph says:

PN57

Although you applied for a number of jobs -

PN58

and that is true, Gary did off his own initiative -

PN59

unfortunately the database -

PN60

that is the National Skills Service Centre database -

PN61

did not identify any skills matches against vacancies or jobs.

PN62

So in other words, the system didn't refer Gary to any jobs, at all. Gary chased a number himself. Now, it may be claimed that there are not - just not any jobs or swaps suitable for Gary, and I assume that would be Telstra's claims. However, I would like to table an October 2000 e-mail from national management on this whole question.

EXHIBIT #CEPU5 PRODUCTIVITY PEOPLE INITIATIVES

PN63

MR COOPER: If we can refer you to page 2 of the document, it is basically an e-mail to staff and it says, on the first paragraph basically:

PN64

This site receives -

PN65

this is the Intranet site advertising jobs:

PN66

This site receives about 1400 hits per week and we encourage staff to make better use of the site when considering potential job opportunities.

PN67

Then it says:

PN68

Approximately 10,000 staff move roles via transfers, promotions, secondments and peels etcetera each year. We believe less - - -

PN69

THE COMMISSIONER: What is a peel?

PN70

MR COOPER: I have yet to find out. I assume it is another name for a transfer.

PN71

THE COMMISSIONER: I see.

PN72

MR COOPER: It might be something to do with lunch, I am not sure. And then you will see it says also in that paragraph:

PN73

We believe less than half of these movements are formally advertised.

PN74

So Telstra management itself is concerned, it is saying, well over half the jobs that are available to people are not known, they are not advertised. And I want to come back to that in a while. And again, I refer to paragraph section 4.8 of the Redundancy Agreement where it basically deals with this whole question of what Telstra will do to get a redeployee a job. And it basically says that it will take all available - look at all available options across the Telecom organisation. And I guess one of the things we have submitted to the Board and we are submitting here today, is that Telstra management itself is now saying that in effect it hasn't done that in the case of Gary because over half of the jobs are not advertised. Now, it also says in 4.8:

PN75

Full discussions about the opportunities with the individual will be made available on all available options across the whole of Telstra -

PN76

I read this before -

PN77

and the union will be involved unless the employee doesn't want it.

PN78

Now, we know of little or no discussion with Mr Wills across all of the whole Telecom organisation options and certainly the union was never involved. I would submit that no discussions, or very little discussion with Mr Wills occurred and Telstra made no effort to involve the union or ask Gary if wanted help either through the union or otherwise. In fact, as I mentioned earlier, the only jobs applied for were sought and identified soley for Mr Wills efforts alone.

PN79

And again I refer you to that national meeting of an e-mail that I mentioned before that I tabled, where it demonstrates that less than half the jobs were advertised. In fact, could I emphasise that and management have now instituted a project to try and overcome the secret job market in Telstra. This project was notified to the staff in March 2002 edition of Telstra's magazine, Our Future. So we would submit that a comprehensive 3 month examination on all available options, across the whole of the Telecom organisation and across all designation categories, did not take place in Mr Wills case as required by the redundancy group.

PN80

Now, Mr Wills formal job search period began, it appears, from Telstra documents on 17 December 2001. The three months of job search would then normally be reached about 18 March 2002. I think Telstra's documentation notifies that. During this period of Telstra - the Telstra magazine, containing the main job market information, published by Telstra, was not published for five weeks over the Christmas/New Year period, 14th of the 12th to the 18th of the 1st. And also, Gary was on sick leave for a week during this period.

PN81

Now, on the basis of this five or six week period of no job search, Gary requested an extension of job search time, and there are precedents for this in Telstra. Actually, his management, in response, offered him a six day extension between 28 March 2002 and 3 April 2002. That six days included the four days of Easter, 29, 30, 31 March and 1 April. We would submit that Mr Wills was not given a three months job search period but less than two months, in fact. As I stated earlier, Mr Wills appeal to the MIRB was heard on 21 May 2002. Mr Wills appeal was upheld by a majority decision.

PN82

THE COMMISSIONER: Can you tell me what this body is?

PN83

MR COOPER: Sorry, Commissioner. It is called the Management Initiated Redundancy Review Board, and I was going to refer to the redundancy agreement shortly on the matter.

PN84

THE COMMISSIONER: I see.

PN85

MR COOPER: It is - - -

PN86

THE COMMISSIONER: It is contained in the agreement, is it?

PN87

MR COOPER: Yes. Sorry, I missed that?

PN88

THE COMMISSIONER: It is contained in the agreement?

PN89

MR COOPER: It is, yes, if I could refer you to 5.5 and 5.6 and 5.7 deals - and 5.8, deal with that matter, and I will refer to that shortly.

PN90

THE COMMISSIONER: Thank you. Now, just to repeat, the MIRB, the Management Initiated Review Board was heard on 21 May 2002. Mr Wills appeal was upheld by a majority decision and just to - just a quick report to you on how it is made up, it is made up of a union representative, the Board, a Telstra representative and a Chairperson. The Chairperson is a fairly permanent regular Chairperson who handles the Board matters.

PN91

THE COMMISSIONER: External to both Telstra and the union.

PN92

MR COOPER: It is actually a retired employees, yes.

PN93

THE COMMISSIONER: A retired employee, yes.

PN94

MR COOPER: Yes, in this case, it doesn't have to be, but - - -

PN95

THE COMMISSIONER: No.

PN96

MR COOPER: So Mr Wills' appeal was upheld by a majority decision which was actually made up by the CEPU representative land the Telstra representative voting to uphold the appeal and the Chair against. Normally, winning an appeal means another 3 months job search. In fact, the clock again starts ticking. That is the usual process once one wins an appeal. Within a couple of days of the MIRB decision, we were hearing that Telstra was considering rejecting or ignoring the MIRB decision on their interpretation that it was just a recommendation and I must say that the Telstra manager and Mr Wills' manager, Mr Thomson, who attended the MIRB meeting, gave us an inkling of Telstra's approach when he sought confirmation from the board at the beginning of the MIRB about whether a decision by the board is a recommendation only. I have no knowledge of any MIRB decision being rejected in the past. I table the internal Telstra e-mail now, canvassing the possible rejection of the MIRB decision which I think becomes pretty important to the case.

EXHIBIT #CEPU6 INTERNAL TELSTRA E-MAIL

PN97

MR COOPER: Now, I would like to just refer you to the fact that the e-mail is dated 23, 24 May which is two days after the MIRB decision. I will take you through the document. The first paragraph there, it identifies that Mr Wills' position was subject to an appeal. It identifies the - - -

PN98

MR SHORTAL: Commissioner - - -

PN99

THE COMMISSIONER: Yes.

PN100

MR SHORTAL: Commissioner, we object to this. We consider this to be privileged information.

PN101

THE COMMISSIONER: Yes.

PN102

MR SHORTAL: And, indeed, contains a number of items there that are not for general distribution and certainly not something that we would consider we would provide to the union, nor to the employee. It is between HR and the line managers over a particularly what you would call sensitive nature.

PN103

THE COMMISSIONER: Yes, Mr Cooper.

PN104

MR SHORTAL: And also you will see on the second last page - - -

PN105

THE COMMISSIONER: Well, I have tried not to look at it, now that you have objected to it.

PN106

MR SHORTAL: Okay. Well, it refers to legal advice, so we would consider that it is privileged.

PN107

THE COMMISSIONER: That it is privileged in that sense. Yes, Mr Cooper.

PN108

MR COOPER: Mr Commissioner, we thought it was Telstra that sent it to us, quite frankly. We would like to have it read into transcript, if that is possible.

PN109

THE COMMISSIONER: Well, it has been objected to on the basis of privilege.

PN110

MR SHORTAL: I might also be interested how the union came into possession of it, because it wasn't certainly sent by Telstra, as Mr Cooper alludes.

PN111

MR COOPER: Well, perhaps rather than read it, can I summarise it as I see it? Can I summarise Telstra's position two days after?

PN112

THE COMMISSIONER: As you understand it?

PN113

MR COOPER: As I understand it.

PN114

THE COMMISSIONER: Well, I will hand back that and I won't receive it. I won't rule on the matter of whether it is privileged or not at this stage, unless it is pressed by Mr Cooper and then I will consider.

PN115

MR SHORTAL: Commissioner, I might also add that perhaps insofar as Mr Cooper seeks to summarise matters that are privileged, we would maintain the same objection. If his statement is to an external position that was made by Telstra to perhaps the CEPU or to Mr Wills, we wouldn't have any objection to that. If it is referring to matters of the internal position and deliberations of the company based on legal advice, we would certainly take a very strong objection to those things either being handed up or referred to.

PN116

THE COMMISSIONER: I don't understand that, I am sorry. I can well understand how a company might claim privilege in relation to legal advice received, but are you saying that if Mr Cooper refers to what he understands to be the decision of Telstra or the position of Telstra, having considered that legal advice, that your outcome is in some way privileged?

PN117

MR SHORTAL: No, Commissioner. Indeed, while I agree completely with that summation, it is in fact, though, the deliberations that go to a decision.

PN118

THE COMMISSIONER: Yes.

PN119

MR SHORTAL: Those matters we would say are privileged and certainly are, subject of course to anything Mr Cooper might say about waiver of privilege, and obviously we would look at the question of waiver because, as far as we are aware, we have certainly not waived any privilege in the matter. We would object to those deliberations being considered and raised.

PN120

THE COMMISSIONER: Mr Cooper.

PN121

MR COOPER: Well, could I say that to save the Commission time in regard to this, let us say we withdraw that and I will just tell you, as I started to tell you about the rumours we heard circulating.

PN122

THE COMMISSIONER: But the point that is being - well, you could do that, but it might have absolutely no weight. But the point that is being made, to the extent that you seek to refer to legal advice that may be given to Telstra that contains a number of options, for example - and I do not know, I have not - as soon as the objection was raised, I stopped reading the document. I often find documents that are given to me that perhaps should not be. But if you want to make any submissions or for me to draw any inferences on advice that might be given, other than the conclusion that they have reached, then the point about privilege might be valid and certainly the question of rumours might carry little weight. But you understand the point that I am making.

PN123

MR COOPER: Certainly. I do understand. And could I say that on my reading of this document that I should not read, I do not see any mention at all of legal advice, or from any legal department. It came from - the document relates to managers and HR, and I do not see any mention of legal advice in it, other than that they might be a bit sensitive to the industrial environment and they want to seek legal advice, but that - it is probably not completely pertinent to everything that I want to say. Basically, as I say, as I mentioned before, a couple of days after the decision, we were hearing the story that Telstra were considering rejecting or ignoring the MIRB decision and that there were high level management meetings being organised to consider that.

PN124

And, as I mentioned, the manager attending the MIRB did flag that that was a possibility by asking that Chairman of the Board about recommendation status. Now, basically, what we were hearing was that Telstra's position was that they should, the recommendation in this document - sorry, this rumour - was that Telstra should reject the recommendation of the board but it was industrially sensitive, particularly given the negotiations on the redundancy agreement at the moment, and they were calling for meetings to consider that and they were weighing up, as we understand it, they were weighing up the cost of - - -

[12.35pm]

PN125

MR TRINDADE: Commissioner, with respect, Mr Cooper is not talking about rumours he has heard and he is not talking about a position. He is simply going as to matters that are contained in that e-mail. Now, we would say that is entirely inappropriate. Perhaps if Mr Cooper could perhaps move on to issues that he actually has heard or perhaps communications from the company, or perhaps it could be circumvented in some way by perhaps Mr Shortal explaining what the position of the company is. I think we could deal with this issue without having to go through this process.

PN126

THE COMMISSIONER: Well, Mr Cooper, what do you say?

PN127

MR COOPER: I say let us push on because the story gets better.

PN128

THE COMMISSIONER: Yes, very well.

PN129

MR COOPER: As it turns out Telstra didn't choose the path of rejecting the decision or recommendation as they would call it, they decided on another path. On 28 May Mr Wills received an e-mail, which I assume we can use as a public document, from his manager.

PN130

THE COMMISSIONER: This is an e-mail to Mr Wills. I will mark that CEPU6. I will strike out the previous CEPU6 as not pressed for tendering.

EXHIBIT #CEPU6 E-MAIL DATED 28 MAY TO MR WILLS

PN131

MR COOPER: Thank you. Basically, you will see that the e-mail says that Telstra requested the MIRB to reconvene and review its decision:

PN132

...regarding outcome of your appeal. It is Telstra's view the board has acted outside the provisions of the agreement as the majority recommendation of the board clearly took into account extraneous issues and as I advise you are now on paid leave until the board has reviewed its decision.

PN133

Now, basically, that is usually known in the industry as sent home on gardening leave and that is where Gary, Mr Wills, is at present waiting for the decision. Now, you can see that Telstra, instead of rejecting the recommendation as they flagged in the MIRB hearing, they decided to have the board reconvene. Now, no doubt, if it gets reconvened, the Telstra manager who voted to uphold Mr Wills' appeal will have to have some thinking about how she deals with the question. I, again, refer to the redundancy agreement just to take you to the point you raised earlier, Commissioner, about the board. Again, just to highlight a few points you will see that he or she, employee:

PN134

...has a right to have a decision, or the decision reviewed by a review board subject to such application being made.

PN135

And it gives the timetable. 5.6 says:

PN136

The board will exercise its power having regard to the principles of natural justice.

PN137

I am not sure whether reconvening the board until you get the decision right is in line with those principles. 5.6(2):

PN138

An employee nominated by the corporation for the purpose of the appeal...

PN139

I highlight that to say that Telstra's representative voted to uphold the appeal; Telstra's representative. And then 5.7:

PN140

Where an employee seeks review of a decision that they be involuntarily retrenched ...(reads)... have been inappropriately made, revocation of the decision.

PN141

Now, we would wonder how an employee nominated by Telstra to represent it on the board can vote for it and then the corporation can reject the decision of call for reconsideration when their representative actually voted for it.

PN142

THE COMMISSIONER: Well, I can understand how they take the view it is a recommendation. Mr Shortal will tell me, no doubt, how they reconvene.

PN143

MR COOPER: Indeed. As a matter of fact I was just going to deal with that question that we would submit that the only way a review board under the agreement can be called to convene under the agreement is by an employee who has been made redundant by demand. There is no provision for the parties to the agreement, Telstra, nor CEPU, to convene or request to convene or reconvene an MIRB. If it is found that one party to the agreement can in fact have the board reconvened then why not the other? And who makes the decision? Does the chairman, the Telstra rep, the CEPU rep? Or all three? Or a majority?

PN144

And to get that decision, one presumes the board has got to reconvene, anyway, in the first place. It could be, if the Telstra representative is true to her conscience and showed pretty amazing courage, in our view, she may refuse to turn up to reconvene a board. What then? Would you send along a manager who would vote the right way? We would submit that by their actions, Telstra is helping to prove even more clearly that they are not only not complying with the agreement, they are deliberately and knowingly not complying with the agreement.

PN145

Mr Wills was selected - I would like to make another point here. Mr Wills was selected, along with another redeployee as surplus to requirements by a single manager in his area, Mr Thomson, who was the manager that seemed to be bent towards rejecting the MIRB decision by his questions at the MIRB. He claims that Mr Wills was working on a project which was diminishing and therefore he had to be one of those to go. In other words, Mr Wills selected himself by the project he was on and the fact that it was winding down and I raise this point because we believe that there has been no fair process to select who went from the area, the section where Mr Wills worked. There were just two people chosen by management.

PN146

The fact is that the technical staff in the area all have similar training. Their skills are interchangeable in the main and there has been considerable rotation over the years and even rotation to fill gaps on other projects when people are away and I would like to submit an e-mail from Mr Wills himself, explaining the circumstances in the last few years in regard to projects and project allocation.

EXHIBIT #CEPU7 E-MAIL RE PROJECTS AND PROJECT ALLOCATION

PN147

MR COOPER: You will see that Mr Wills is basically indicating there that there has been a necessary inter-working and movement historically over products and using the various skills and knowledge of the persons working in the area. He makes the point for the last seven years, there has been instances of staff moving by management appointment between products and he gives some examples of that there and he gives some examples of the various products and experiences that he has had in the area and I guess we are raising this because we believe that the management should have put a process in place and obviously resource rebalancing is available to them to do that, to in fact seek volunteers from the entire staff and to then decide who goes based on the resource rebalancing process and I would like to take you back to 6.7 of the redundancy agreement here. Now, I will just read 6.7:

PN148

The identification of employees who are potentially excess to requirements will ensure that all affected employees within the class or classes of position are offered an opportunity to volunteer for retrenchment.

PN149

Now, I must say that as a result of the Holmes hearings, there has been a change to that and I will just draw your attention to it. The words that were taken out as a result of the Holmes decision are the words that say:

PN150

...within the class or classes of positions -

PN151

so the redundancy agreement now reads;

PN152

The identification of employees who are potentially excess to requirements will ensure that all affected employees are offered an opportunity to volunteer for retrenchment.

PN153

We would submit that that hasn't occurred in Gary's case and no fair process was put in place. The only process used in this case was the fingering of two individuals by one manager and the final point I would like to make is this and I refer you back to the Telstra document tabled as an exhibit entitled section 3. It was earlier on. I can't remember the number now, Mr Commissioner. It is headed up section 3. I think it was number 3. CEPU3, would I be right there?

PN154

THE COMMISSIONER: What do you say it is headed?

PN155

MR COOPER: Section 3, job applications.

PN156

THE COMMISSIONER: Yes, that is CEPU3.

PN157

MR COOPER: If I could just refer you to the front page of that document and I would like to read it. It says here - now, this is the job, by the way, that I took you through which related to Genesis and the argument that we said he could easily be trained to pick up those skills:

PN158

Towards the end of Gary's three months in the NSSC, I began advertising an AWA level 5 job within my group, seeking a CTI technical specialist -

PN159

and you will see from Mr Wills' CV that he has got some speciality in that regard -

PN160

for which Gary applied. I checked with HR what the guidelines were for an award staff applying across into the AWA structure and was informed that I was not obliged to interview an award redeployee for this job.

PN161

And firstly, could I state that there is not, nor should be, any such thing as an AWA structure, nor can there be or should be an exclusion of award people from applying job to job. I suppose, just in passing, it seems to me to be a classic case for a 298K or 298M of the Workplace Relations Act here and even though Telstra went through the motions of interviewing Mr Wills for the job and I have already taken the Commission through the application with regards to Genesis, etcetera, at the same time they were already submitting a business case to fill the job externally on the basis of an AWA and I would like to just submit that as evidence, Mr Commissioner.

PN162

THE COMMISSIONER: Is there any objection to this matter, Mr Shortal?

PN163

MR SHORTAL: No, Commissioner.

EXHIBIT #CEPU8 MEMO

PN164

MR COOPER: Now, the memo says a considerable amount of things, but over on the second page, I guess, you can see under the heading possible candidate that there was already a candidate identified from Westpac Trust and it had even been discussed with Westpac that he could work for Telstra if he wished, so it was clear that someone was already available whilst they went through the motions of interviewing Mr Wills for the job, although they clearly see it as an AWA job which we believe is illegal.

PN165

I guess that ends my submission, Mr Commissioner, but we seek the Commission's assistance in ensuring that Mr Wills' renewed three-month job search period, which technically began on 21 May or the 22nd at the latest, is honoured and that the job search period is a proper job search period as required by the redundancy agreement and that Mr Wills' redeployee status is properly recognised as required by the redundancy agreement. Thank you.

PN166

THE COMMISSIONER: Thank you. Yes, Mr Shortal.

PN167

MR SHORTAL: Commissioner, there's quite a volume of submissions here and material. Perhaps, for convenience sake, if I was to at the outset say that Telstra believes that we have followed the redundancy process as it is prescribed in the AOTC redundancy agreement. We believe that all aspects have been complied with and I will deal with the issue of the MIR board in just a moment, but perhaps if I was to just go back through the CEPUs exhibits, not all of them, but perhaps where I could make comment and I guess the easiest place is to start at the end, so to speak and go back through CEPU8 which was an internal Telstra memo in which Mr Cooper talked about the organisation seeking to appoint somebody from the outside. If I could just draw your attention to the paragraph on the bottom of the first page, the second sentence. It says:

PN168

Approximately 12 months ago, we were unsuccessful in finding resources within Telstra, our future issue 410 reference 11140. Attempts to identify resources were also made by direct contact to likely areas within TRL and IS.

PN169

I would then like to take you to the last paragraph under possible candidate. It is almost a one-line sentence which says:

PN170

Should a skilled candidate be identified internally, we will not proceed with external recruitment.

PN171

This is essentially a business case that the line manager put together to say, well, look, I have had difficulty in recruiting for this job in the past and we potentially have another candidate. At the same time, Mr Wills was afforded an interview for this role and, indeed, was determined basically not competent and that is probably not the nicest term, but it is a term that the agreement refers to and the assessment was made by the line manager that he would take in the order of 12 months to be trained, so in my submission, we have done nothing wrong in relation to this job.

PN172

The aspect that, actually, it is a level 5 role, Mr Cooper referred to AWAs. The organisation has a six-level structure starting at level 1 right down to level 6, award classifications sit within the level 6 band. This job in fact was advertised as a level 5 role. That in itself would bring about a promotion. Now, the redundancy agreement in our submission does not provide for certain rights which are conferred on redeployees to apply in the case of promotion. Promotion is based simply on merit and we would not see that position altering.

PN173

If I could turn to CEPU7 which is an e-mail from Mr Wills to Mr Cooper and it talks about a range of skills, etcetera, that people within the team possessed. It is interesting that, here it is, this is on 28 May this year, yet we notified the union I think around about 21 October last year of our intention to take redundancy action and the redundancy agreement provides for a two-week period of consultation. No such consultation, no approach was made to line managers. I think Mr Blackburn from the CEPUs office did come in and visit.

PN174

No approach was made to line management about the reasons for the decision to select Mr Wills, nor I think another gentleman, Mr Sparkman, were the two people concerned so I just find it a bit strange that all of a sudden we are trying to reverse time some seven months, to start to argue about the business decision as to why certain work was stopped and which therefore gave rise to redundancy. In relation to CEPU6 which is the MIRRB issue, we have in fact written to the chairman of the board seeking to have the board reconvene and we have done that on the basis that in our view - well, first of all, the board does not - the board makes a recommendation to Telstra.

PN175

It is not binding on Telstra and it does not direct Telstra. In the case in question and as Mr Cooper has pointed out, the majority recommendation of the board was that the certifications be revoked. Now, it is our view that that recommendation is, in fact, invalid because it dealt with issues which were beyond the scope of the board's powers. The board is there to determine whether, in fact, there was a three month job search and whether it is a suitable vacancy. Now, the majority decision alluded to a number of other aspects which are not relevant to that and in point of fact, the chairman in his dissenting decision, his recommendation was that Telstra had followed the process and the reasons espoused by the majority decision were in fact beyond the powers of the board.

PN176

THE COMMISSIONER: Why do you want it reconvened?

PN177

MR SHORTAL: We want the board to consider what it is required to consider and operate within the parameters in which it is structured.

PN178

THE COMMISSIONER: Do you accept Mr Cooper's proposition that any party can ask the board to reconvene, including the union, if it disagrees with the decision?

PN179

MR SHORTAL: Only if the board does not act in accordance with the reasons it set up and doesn't comply with the agreement.

PN180

THE COMMISSIONER: In the view of one of the parties.

PN181

MR SHORTAL: Granted.

PN182

THE COMMISSIONER: So you accept the proposition that the union can ask the board to reconvene?

PN183

MR SHORTAL: If it considered that the board acted outside its powers, yes.

PN184

THE COMMISSIONER: I understand.

PN185

MR SHORTAL: And that would have to be clearly stipulated in the reasons for decision and in this case, it was quite evident.

PN186

THE COMMISSIONER: It is all right, I understand. Your general proposition, that any person who believes the board has not acted within its powers can ask it to reconvene and it is obliged to do so?

PN187

MR SHORTAL: We don't know that. That is untested, I guess.

PN188

THE COMMISSIONER: Would you be surprised if the chairman told you he wasn't going to reconvene?

PN189

MR SHORTAL: In view of his decision, no, I wouldn't be. Well, I would be, sorry.

PN190

THE COMMISSIONER: You would be surprised?

PN191

MR SHORTAL: Yes, based on what took place.

PN192

THE COMMISSIONER: And what is the test - - -

PN193

MR SHORTAL: The alternative to that, of course, is that we don't have to accept the recommendation and plough on.

PN194

THE COMMISSIONER: Well, that is why I was wondering. I can see your point, when it says we will recommend. Why bother going back? Doesn't it give the odour that Mr Cooper described to it, if you go back to it?

PN195

MR SHORTAL: Well, that is one particular view. We did not see it that way and, I guess, to have the board comply with the way that the agreement is structured and what it has prescribed to do - - -

PN196

THE COMMISSIONER: You take the view that it hasn't complied and therefore you don't accept its recommendation?

PN197

MR SHORTAL: That was an option we considered. In relation to CEPU2 - - -

PN198

THE COMMISSIONER: Before you leave CEPU6, tell me about this gardening leave. How does that arise?

PN199

MR SHORTAL: The employee is not required to attend for work. He is still on full pay.

PN200

THE COMMISSIONER: Why? Why is he not required for - - -

PN201

MR SHORTAL: Because there is no work for him.

PN202

THE COMMISSIONER: I see. Are you aware of a decision of Madgwick J in recent times?

PN203

MR SHORTAL: No, Commissioner.

PN204

THE COMMISSIONER: I might adjourn and get it for you, so that you can have a look at it and take some advice on it. The matter is adjourned for 10 minutes.

SHORT ADJOURNMENT [12.56pm]

RESUMED [1.10pm]

PN205

THE COMMISSIONER: What I will do is I will hand down a copy of the judgment of his Honour, Madgwick J, so that it can be read and I will adjourn until two o'clock and what I was immediately drawn to is the issue of gardening leave which is referred to by his Honour and it deals with a common law duty to provide work. It says that that doesn't exist if, as I understand the reading of his Honour's decision, although it may be the subject of some submission, doesn't exist where there is no work to be provided, but that might be the subject of evidence, but I will hand a copy down so that the parties can read it and we will adjourn until two o'clock. Is that convenient? Very well, the matter is adjourned until two o'clock.

LUNCHEON ADJOURNMENT [1.11pm]

RESUMED [2.03pm]

PN206

THE COMMISSIONER: Yes, Mr Shortal.

PN207

MR SHORTAL: Thank you, Commissioner. During the adjournment we have had a look at the Federal Court decision and obtained some legal advice. In relation to the gardening leave, we would submit that our actions insofar as Mr Wills is concerned, nothing in this decision actually prohibits what we have done to date and, in fact, we would argue that there is no work actually for Mr Wills to undertake and he is not being penalised.

PN208

THE COMMISSIONER: Yes. That then now raises squarely whether or not there is or is not work, doesn't it?

PN209

MR SHORTAL: That is correct.

PN210

THE COMMISSIONER: Within Telstra.

PN211

MR SHORTAL: We have argued that Mr Wills effectively hasn't worked since about 26 October 2001.

PN212

THE COMMISSIONER: I am not interested in that. I am drawing that to your attention of the duty to provide work if work is available. This now raises squarely the union's argument that work is available and that you have declined to provide it because you have declined to comply with the provisions of the agreement. Now, I am not saying whether you have or you haven't and I know that you argue that you have complied but to the extent that work was available and you didn't transfer somebody into that position, if Mr Cooper is found to be right, then you are currently acting not according to the law, it would seem, on the judgment of Madgwick J.

PN213

MR SHORTAL: But that begs the question as to whether or not - and I think Mr Cooper's argument is that he wasn't selected for jobs and our argument was that he wasn't selected due to the fact that he wasn't competent to perform those jobs.

PN214

THE COMMISSIONER: Yes, and that would be a matter of evidence, wouldn't it, as to whether or not he was competent to perform those jobs. It goes back to the old public service concept, doesn't it. You can be transferred at level.

PN215

MR SHORTAL: Yes, that is true, and that is the concept of redeployment.

PN216

THE COMMISSIONER: Yes, and with minor training. And the sort of material that has been put, if we go, for example, to one of them, was the Genesis knowledge. I can understand 12 months training might not fit the bill but the handwritten notation, subject to any submissions which you put, say one or two weeks training would qualify for the completion of that course.

PN217

MR SHORTAL: That might be his view, sir. It would be the question of the people who are responsible for making the selection decision and bearing in mind their judgment that they exercise.

PN218

THE COMMISSIONER: Absolutely.

PN219

MR SHORTAL: And certainly we can't put ourselves in their position and second guess why they wouldn't.

PN220

THE COMMISSIONER: No, but I might. I might put them there and get them to justify their position.

PN221

MR SHORTAL: Commissioner, I was going to make further submissions in relation to the remaining exhibits. However, I am mindful of - - -

PN222

THE COMMISSIONER: No, no, I am happy for you to do that. I didn't mean to interrupt you. I think it is appropriate that I do hear from you on all the matters you wish to put at this stage and particularly where you see the matter going.

PN223

MR SHORTAL: Well, what I was going to suggest is that, given the time, that we adjourn into private conference, if you are agreeable to that course of action.

PN224

THE COMMISSIONER: Yes, sure, sure. Mr Cooper, do you - - -

PN225

MR COOPER: Certainly.

PN226

THE COMMISSIONER: All right. Thanks, Mr Shortal. Well, I will adjourn into conference.

SHORT ADJOURNMENT [2.07pm]

RESUMED [3.23pm]

PN227

THE COMMISSIONER: I have conferred with the parties and I want to do two things. I want to provide Telstra with an opportunity to look at the material that has been raised by the union, which, in effect, calls into question - the union seeks to call into question the bona fides of the redeployment process. So I would like Telstra to have a look at that and to briefly make a submission, either orally or in writing, with supporting material, as to what their answer is to those allegations. Secondly, I would be assisted by a brief rundown of what has happened in the central process that seeks to job match.

PN228

There has been a submission put by the CEPU to the effect that Telstra has done nothing in that regard and I think it was the inference that I am asked to draw that arose from CEPU4. Having heard that, I would then ask for the CEPU to indicate the relief that it seeks and on what basis it thinks I can grant that relief. I have only got the lunch time so it will be sitting from 1 to 2 and then I will undertake to review the position over the weekend and to advise parties on Tuesday what further action I propose or do not propose to take. Any questions? Thank you for your submissions. I will adjourn until 1 o'clock on Thursday, 6 June 2002. The matter is adjourned until that time.

ADJOURNED UNTIL THURSDAY, 6 JUNE 2002 [3.26pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CEPU1 REDUNDANCY AGREEMENT PN6
EXHIBIT #CEPU2 COPY OF PART OF MR WILLS CV PN27
EXHIBIT #CEPU3 JOB APPLICATIONS PN36
EXHIBIT #CEPU4 LETTER FROM MR WILLS TO MR THOMSON PN54
EXHIBIT #CEPU5 PRODUCTIVITY PEOPLE INITIATIVES PN63
EXHIBIT #CEPU6 INTERNAL TELSTRA E-MAIL PN97
EXHIBIT #CEPU6 E-MAIL DATED 28 MAY TO MR WILLS PN131
EXHIBIT #CEPU7 E-MAIL RE PROJECTS AND PROJECT ALLOCATION PN147
EXHIBIT #CEPU8 MEMO PN164