C2002/1739, Transcript of Proceedings [2002] AIRCTrans 2530 (8 July 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 VT04613
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2002/1739

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

and

VISIONSTREAM PROPRIETARY LIMITED

Notification pursuant to section 99 of the Act
of a dispute re the company's alleged failure to
consult with CEPU as per Clause 7 (iii) and (iv)
of the certified agreement

MELBOURNE

4.36 PM, FRIDAY, 21 JUNE 2002

Continued from 19.4.02

PN65

THE COMMISSIONER: Is there any change in appearances?

PN66

MR A. ABSOLOM: Yes, Commissioner, I appear for the CEPU.

PN67

THE COMMISSIONER: Thank you.

PN68

MR P. WAY: Yes, Commissioner, I am appear for Visionstream and I am accompanied by MR M. BUTLER, from Harmers Workplace Lawyers.

PN69

THE COMMISSIONER: Yes. Mr Jones.

PN70

MR C. JONES: I appear on behalf of Telstra.

PN71

THE COMMISSIONER: Thank you. Now, on the last occasion I said I was going to notify Telstra and then I would hear submissions as to whether a dispute should be found binding the two companies and what the subject matter of the dispute would be. Mr Absolom.

PN72

MR ABSOLOM: Thank you, Commissioner. In relation to the discussions and the original proposal or submission put forward by my colleague Mr Brown, it has been fair to say that there has been a deal of consultation between the parties. As far as Telstra is concerned, there is a further proposal to extend the TASM Trials into areas including Victoria country, Vic/Tas, that is, and Queensland. However, that is, in fact, using their own workforce, a Telstra internal workforce. Which brings me to the point, Commissioner, of why, in fact, we need or Telstra need to use sub-contractors or contractors, a la Visionstream, in these TASM Trials in Victoria.

PN73

In fact, the CEPU can only deduce the use of contractor is because of the lesser terms and conditions these people incur and in fact, would undermine the CEPU members, the award based employees. There has been an agreement reacher per se, it is not a signed agreement, by the CEPU and Telstra. I would like to put that forward to you now, Commissioner, and go through some of the detail contained in that.

PN74

THE COMMISSIONER: Do you raise any difficulty with that?

PN75

MR JONES: No.

PN76

MR ABSOLOM: This agreement was struck before the struck before the start of the trial, which was originally set down for 25 April but, off the top of my head, Commissioner, I don't think it started until about the second week in May. It may have been the third week. Can I draw your attention to page 6.

PN77

THE COMMISSIONER: Yes.

PN78

MR ABSOLOM: Which obviously gives a start and finish date, a very important statement there, second line down, which says:

PN79

During the period of the trial, there will be no forced redundancies for the TASM Trial participants or those who choose CAPEX, that is capital expenditure as an alternative to the trial.

PN80

There is a finish date:

PN81

The trial will finish on 31 December 2002.

PN82

Further down it goes into:

PN83

Staff will not be forced to become sub-contractors.

PN84

And right at the bottom of the page:

PN85

At the conclusion of trial there is no commitment for Telstra to retain sub-contractors under the TASM Trial conditions after the trial ceases.

PN86

On the next page, page 7, the second dot point:

PN87

As far as the union is concerned, Telstra will continue to consult with staff associations, in accordance with enterprise agreement obligations.

PN88

And I must say, Commissioner, that has been occurring of late. If we go over to page 10, at the bottom of the page, it mentions redundancy:

PN89

In the event that voluntary redundancies are offered, staff may elect to seek voluntary redundancy.

PN90

As stated before, Telstra agreed that there will be no forced redundancies as a result of this trial. Over on page 11, we go to the terms and conditions around the trial, a very important point, the top point:

PN91

Telstra staff will commence the trial on a voluntary basis, on their existing infrastructure enterprise agreement. Staff will be provided with sufficient information to make an informed decision about their involvement.

PN92

Further down, it commits to Telstra HR, HS and E policies. And it also commits:

PN93

Contractors participating in the trial, they must comply with Telstra's stated work methods and standards including HS and E, quality, corporate image and accreditation.

PN94

However, whilst there has been some discussion or consultation with Visionstream, this union, however, was surprised to find that Visionstream per se would not be using their own employees or their own sub-contractors in this trial. It may be that they are using a very, very small number, however, late - just before the start of the trial, the CEPU was informed that in fact Visionstream would be sourcing people in this trial, from five companies. Those companies were Stelatel, Cartel, ATA, Alstoms and Integrated Management Services.

PN95

It is of great concern to the CEPU, Commissioner, that at the end of this trial, Telstra management, Visionstream management will be going away and assessing the outcomes of the trial. It is fair to say that conditions - true to say, the conditions that these people that Visionstream will be using, will be far less than those of the Telstra Award based employees. So, at the start of the trial, before we even start, there is not a level playing field for these people. We do not know whether these companies are employing these people, whether they have just been supplied to Visionstream on a sub-contract basis. We do not know their terms and conditions of employment.

PN96

But, as I said before, it is quite obvious that the sub-contractors and these other people who have been sourced by Visionstream, from these five companies, are going to be on lesser terms and conditions than the Telstra people. Commissioner, we have been seeking that information from Visionstream and the five companies concerned. We really need to know that everyone in this trial is competing on a level playing field. But to this date, we have been either - well, that information has been refused to the CEPU

PN97

THE COMMISSIONER: What information is that?

PN98

MR ABSOLOM: The information that these people - the terms and conditions these people are being employed under.

PN99

THE COMMISSIONER: Right.

PN100

MR ABSOLOM: As I said before, we don't know whether they are sub-contractors of these middle companies, we don't know whether they are employees. We have no agreement with all of those five companies, we have no enterprise agreement, although two of those companies we are now negotiating with, but, to this date, they have not supplied us with the information. Commissioner, we seek that the five companies mentioned through Visionstream, supply us with the terms and conditions that these people are employed under. As I said, it is the view of the CEPU that these companies should be on, at least, the terms and conditions of Visionstream, the company with whom we have an agreement with, or, to make it an even, level playing field, they should be employed under Telstra conditions.

PN101

THE COMMISSIONER: Mr Way or Mr Butler.

PN102

MR BUTLER: Look, there are a number of issues that have been raised here. I have got chronology, I have got documents to tender, I have got submissions to make. I am not sure how far we want to go with those today. It is true that if I - it is true to say that the nature of the disagreement between the union and Visionstream has changed over the course of the last few months. There are a number of matters that have been an issue that are no longer an issue between the two companies. There has been a lot of consultation. There has been a lot of correspondence, between the parties, not all of which is before you.

PN103

It is our submission that the parties would benefit from further conciliation. We aren't sure exactly what the dispute is and I believe that even the - - -

PN104

THE COMMISSIONER: As I understand it - let us see if you have apprehended it the same way as I have. The CEPU are concerned that Visionstream, in carrying out a contract for Telstra, will be engaging further persons at rates which they believe are less than rates paid to their members, probably both at Telstra and at Visionstream.

PN105

MR BUTLER: Yes.

PN106

THE COMMISSIONER: This gives rise to a concern, by their members at Telstra and Visionstream, about their job security.

PN107

MR BUTLER: Well, that is one of the concerns they have raised during the course of this dispute, Commissioner. I have identified, in fact, several including that. That probably puts it in its most articulate form. There are contractors - Visionstream is the contractor, if you like. We are not sure whether the dispute is with us or whether they have got it with Telstra. They want Telstra to impose those conditions on us, as part of the contract. There is a contract between Visionstream and Telstra. Visionstream have - - -

PN108

THE COMMISSIONER: Well you should know that I have been trying to look closely at decisions such as Shell, Gate Gourmet - - -

PN109

MR BUTLER: You too, Commissioner, you too.

PN110

THE COMMISSIONER: - - - the long line of authorities - - -

PN111

MR BUTLER: Well, Commissioner - - -

PN112

THE COMMISSIONER: - - - that make yours and Mr Jones' appearance a welcome sight.

PN113

MR BUTLER: Yes. Well, maybe welcome or maybe not, Commissioner. There is Shell, there is Southcorp, there is TRW, usefully referred to in the Gateway decision.

PN114

THE COMMISSIONER: Yes.

PN115

MR BUTLER: And, you know, we have some submissions, sir, to say about that, if we get that far. We are really saying to you that we are in a stage before that, and in fact I - - -

PN116

THE COMMISSIONER: Where there can be some conciliation - - -

PN117

MR BUTLER: Yes, Commissioner.

PN118

THE COMMISSIONER: - - - which doesn't need then, to give rise to an industrial - - -

PN119

MR BUTLER: I have an outline of submissions on that if that is useful - I will hand it around. This is the way we see it, if you like. I mean, I can either address this or just take you, Commissioner, to the relevant points.

PN120

THE COMMISSIONER: Just the relevant points. I will mark it for identification.

PN121

MR BUTLER: Thank you.

EXHIBIT #B1 OUTLINE OF SUBMISSIONS

PN122

MR BUTLER: Commissioner, on that point, I note that the bundle of correspondence that was handed up last time this matter was before you on 19 April has not been marked.

PN123

THE COMMISSIONER: Yes.

PN124

MR BUTLER: And I am anticipating that I am going to be tendering some of that correspondence and some further correspondence. So I don't know whether you want to mark them as bundles or - so the last one would be, you know, CEPU 1, for example, or how you want to handle it.

EXHIBIT #CEPU 1 BUNDLE OF CORRESPONDENCE

PN125

MR BUTLER: Which would probably make this document that the union have handed up today - - -

PN126

THE COMMISSIONER: Well, I haven't marked that one yet.

PN127

MR BUTLER: Right.

PN128

THE COMMISSIONER: There is no difficulty about - it is marked "Telstra, in confidence". Mr Jones, do you have any difficulty in me marking that?

PN129

MR JONES: No, I don't.

PN130

THE COMMISSIONER: Very well.

EXHIBIT #CEPU 2 BUNDLE MARKED "TELSTRA IN CONFIDENCE"

PN131

MR JONES: If I may say, we don't have a copy of that bundle that you are - - -

PN132

THE COMMISSIONER: Yes, I will make arrangements for you to get a copy. Thank you.

PN133

MR BUTLER: Commissioner, just taking you to the main points of this outline of submissions, the first page deals with how this alleged dispute has been notified.

PN134

THE COMMISSIONER: Yes.

PN135

MR BUTLER: And Mr Absolom went to that today. The transcript shows the points in paragraph 3. I have extracted five concerns of the union, that I can pick out and the relevant paragraph numbers. In paragraph 4, I have looked at the correspondence and have extracted some further concerns from the union. And, if I could just take you to 4(e) on page 3 of the submissions, Commissioner, where the names of the Visionstream sub-contracting companies are mentioned. And at point - the last sentence there:

PN136

On this point, I am instructed that this request by the CEPU is in fact asking about the terms and conditions of sub-contractors of sub-contractors of Visionstream.

PN137

So we are getting a long chain here, if you like - - -

PN138

THE COMMISSIONER: Yes.

PN139

MR BUTLER: - - - and obviously we are saying that is far removed from Visionstream, which obviously goes to whether there is an industrial dispute in the meaning of the Act or not. The correspondence that I referred to, in paragraph 4, some of that is in the bundle and some of it is in another bundle, which I have here, which I seek to tender.

PN140

THE COMMISSIONER: Yes.

EXHIBIT #B2 BUNDLE OF DOCUMENTS FROM VISIONSTREAM

PN141

MR BUTLER: If the Commission, pleases. Now we have the bananas in pyjamas.

PN142

THE COMMISSIONER: Yes.

PN143

MR BUTLER: B1 and B2. Now, I have to say, Commissioner, I can't point to any correspondence or transcript that says what I have said in 4(e) - I have said that those are my instructions. But if that is right, then it is getting a lot further away. Our response, set out in paragraph 5, including my useful prompts here to tender the material that I have just tendered, we don't believe we have been evasive, we believe we have responded. And if I could just hand up a chronology to that effect, that sets out what we say are the main dates and events in this matter, which sets out - - -

EXHIBIT #B3 CHRONOLOGY OF DATES AND EVENTS

PN144

MR BUTLER: - - - when the union have written to Visionstream and when Visionstream have responded. And the relevant documents should be in exhibit B2. The Commission will see that the trial started on 23 May, this year. The Commission will see that lengthy negotiations occurred between Visionstream and Telstra, in April and in May and the Commission will see that, in early April, Visionstream provided information about TASM to the CEPU. And that is probably the start of where the length of correspondence occurs, leading to the provision of information by Visionstream to the CEPU.

PN145

It is - so we say we have provided information. It is fair to say, that, if I go to the last item of the chronology, that is - probably brings us up to date as to where we stand today. Visionstream wrote to the CEPU on 5 June 2002, again stating it is unable to provide the particular information concerning the TASM sub-contractors, which is sought by CEPU. The short answer, I suppose, Commissioner, from Visionstream to the concern that CEPU may have about the terms and conditions of the Visionstream employees, is best answered by stating that there is a certified agreement that Visionstream has to follow.

PN146

So we say there, there is no dispute there, there can be no dispute, there is a certified agreement that deals with that matter. In relation to the point about Visionstream - that Mr Absolom made today, about Visionstream will go away and assess the outcome of the trial, that is not our job, Commissioner, that is Telstra's job. That is not part of the contract, so we say that is not in issue. And the short answer, I suppose, to the concern by the union that Visionstream should be providing the union with the terms and conditions of employees of sub-contractors, we say we don't know, we have asked for it, they have refused to provide it and we have indicated that to the union in writing, at least once.

PN147

And if I could take the Commission to the last letter in the bundle of correspondence marked B2, which - the third paragraph of which points that out, provides the names of the sub-contracting companies and repeats the response that those sub-contracting companies treat that information sought by the CEPU from Visionstream, as commercial in confidence. So we don't have that information to provide, Commissioner. Another legal response, I suppose, is we don't consider that to amount to an industrial dispute but that maybe, hopefully, for another day.

PN148

And another response is, I really take up from what Mr Absolom said, that they are seeking that information from the five companies concerned. And in fact, discussing with two of them over the - or negotiating, with two of them, over the terms of a certified agreement. They know who the companies are, they have approached them for that information. We say that that is probably the end of it, as far as Visionstream are concerned. That is, in a nutshell - Commissioner, we have, in fact, provided an awful lot of information to them. I really haven't done the bundle B2 justice, in terms of the information Visionstream has provided, but in the interests of a short answer, I am really going to the end of it.

PN149

THE COMMISSIONER: Thank you. Mr Jones, do you want to say anything before I adjourn into conference?

PN150

MR JONES: Yes, I do, Commissioner, but it will be quick, knowing that England is about to kick off against Brazil, as we speak.

PN151

THE COMMISSIONER: I see.

PN152

MR JONES: Suffice to say, that this is probably the first time that Telstra has been called to a dispute hearing, to be told that they are in agreement with the union and I am quite happy to acknowledge, on transcript, that the terms of the document handed up, do constitute an agreement of sorts, if you like, with the union. I should add that lest TASMs name has been used in vain, that TASM, essentially, is a new initiative at Telstra, which is really about ensuring that the people within a certain geographical area have ownership of the work and rather than having people, whatever they are, contractors from other units within the organisation or whomever they are, coming in and out and leaving different results, it really is a new way of working and an attempt to encourage productivity and efficiency through that greater ownership.

PN153

And I think that that is an important point to note, at the outset, that there is no conspiracy theory here, it is just part of the ongoing evolution of the field business. The other thing I might just quickly say is that the union have raised concerns with us, starting at the beginning of the year, about TASM. To date, I am aware of seven meetings, many, many more phone calls between the CEPU and Telstra and approximately 10 letters flowing between the companies, that which culminated in that agreement, which you have seen.

PN154

You will see from that agreement that Telstra has gone to the proper lengths to make sure that there is agreement, surrounding this trial, and that in fact there was some correspondence towards the end of April, I note, only a few days after Visionstream and the union were in here last time, which indicated that the union were quite happy for the trial to go ahead. I understand that there is some ongoing agitation about the contractor rates, but the very simple answer, from Telstra's perspective, is that we have got a lump sum contract with Visionstream, we don't have visibility of whatever rates or how they are structuring their internal arrangements, nor do we want to.

PN155

There may be, and I don't know the extent of it, I have only just heard Mr Absolom's initial comments there, there may be some issue about KPIs and how we are measuring them and what it means for their members long term. You will notice, in that agreement, we do talk about the sort of KPIs we are using and we have taken enormous lengths to make sure that there is no comparison between contractors and employee labour. This trial is not about that and it has been made clear in correspondence to the union. So, from Telstra's perspective, and without going into the numerous legal submissions, we don't see that there is a dispute at the present time. And if the union did have a concern about a particular issue, we would be looking for that to be advanced through the dispute resolution procedure. And we have committed to ongoing consultation and that will be the way we continue to handle it.

PN156

THE COMMISSIONER: Thanks, Mr Jones. Mr Absolom, anything you want to say before I adjourn into conference?

PN157

MR ABSOLOM: Just three points. Regardless of whether Visionstream are involved in assessing the outcomes of the trial, in December or January, there is still a concern of the CEPU that some people involved in the trial will be on lesser rates and lesser conditions than Telstra Award employees. Two companies, that Mr Butler referred to, that we are doing EBAs with at the moment, I will say that one of those companies has taken five years to get to the table. However, we are talking EBAs and we are not talking sub-contractors, both those companies employ sub-contractors and have not given us any idea, whatsoever, of the terms and conditions those sub-contractors, engaged by such companies and in turn contracted to Visionstream - - -

PN158

THE COMMISSIONER: Are they covered by awards?

PN159

MR ABSOLOM: I beg your pardon?

PN160

THE COMMISSIONER: Are they covered by an award?

[5.04pm]

PN161

MR ABSOLOM: Right at this moment we are going through a roping in process to get these companied roped in under. In Mr Butler's outline of submissions I would like to question or raise a point on page 4, 5(c) where they claim that TASM Trial does not represent a change in the way in which those covered by the Visionstream Certified Agreement 2001 work. We would refute that. Those Telstra employees - Visionstream employees receive their work now through an automated despatch system and they certainly call Director in Telstra and they certainly did not receive their work that way before the start of TASM. And that involves quite a bit of training which I understand that these people have gone through and that was an agreement - the use of Director was an agreement reached between Telstra and the CEPU some time ago. As the Commission pleases.

PN162

THE COMMISSIONER: Thanks. I will adjourn the matter into conference.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #B1 OUTLINE OF SUBMISSIONS PN122
EXHIBIT #CEPU 1 BUNDLE OF CORRESPONDENCE PN125
EXHIBIT #CEPU 2 BUNDLE MARKED
EXHIBIT #B2 BUNDLE OF DOCUMENTS FROM VISIONSTREAM PN141
EXHIBIT #B3 CHRONOLOGY OF DATES AND EVENTS PN144