C2002/4394, Transcript of Proceedings [2002] AIRCTrans 3760 (25 September 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 VT05619
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2002/4394

CPSU

and

TELSTRA CORPORATION

Notification pursuant to section 99 of the Act
of a dispute re alterations to shift payments

MELBOURNE

10.05 AM, TUESDAY, 10 SEPTEMBER 2002

PN1

MR A. WATERS: I appear on behalf of the CPSU, together with MR J. JAMIESON. I also appear on behalf of the applicants listed in the application for a compulsory conference in this matter.

PN2

THE COMMISSIONER: I haven't listed that yet, Mr Waters, just the section 99 notification. But there are some individuals there as well, yes. Thank you.

PN3

MR J. BOURKE: I seek leave to appear on behalf of Telstra.

PN4

THE COMMISSIONER: Any objection to the application for leave, Mr Waters?

PN5

MR WATERS: Yes, Commissioner.

PN6

THE COMMISSIONER: Thank you. Mr Bourke?

PN7

MR BOURKE: Thank you, sir. Commissioner, we say there are special circumstances that exist which warrant leave to be granted. These applications raise very serious issues. We say they are abuse of process, they are not in the public interest, and they should not be entertained. What these applications are about, are purporting to bring to the Commission's attention industrial dispute, is an attempt to invoke the Commission's processes of conciliation and compulsory conference to create - - -

PN8

THE COMMISSIONER: I haven't listed that one, Mr Bourke.

PN9

MR BOURKE: Yes. But there is a cocktail here to create a de facto right that we have to consult the CPSU in circumstances of their choosing when there is no obligation under the Act or under any instrument to do so. Further, they are attempting to circumvent the proper process for dispute resolution. The relevant issues here are all covered by AWAs. There is an obligation to invoke the dispute resolution procedure if you are in dispute with Telstra, under the AWA.

PN10

And what the union is attempting to do is re-write that procedure under the AWA, encourage people to say effectively, don't invoke the procedure, we will handle the situation, and force us to this forum, in their view, misguided view, that we will then be forced to consult with them, and the dispute resolution procedure is effectively over-turned, effectively circumvented. We say that is improper.

PN11

Further, as part of that strategy they are encouraging people not to comply with their obligations under the AWA, by not invoking the dispute resolution procedure if they say they have a dispute with Telstra, because that is what is required. We also wish to put material to the Commission to disclose that these applications are part of a misconceived industrial strategy. Part of that strategy is that the CPSU want to show how tough they are.

PN12

They have been telling members, we can make Telstra talk. And they are attempting to do so, show how tough they are, by dragging us here before the Commission. They are engaged in gross misinformation, saying that - - -

PN13

THE COMMISSIONER: How are you dragged here, Mr Bourke?

PN14

MR BOURKE: Well, we are responding to this application.

PN15

THE COMMISSIONER: That is right. You come willingly. I haven't required you to be here.

PN16

MR BOURKE: Well, we are paying due respect to the Commission.

PN17

THE COMMISSIONER: I understand that. But you said you were dragged here. I haven't dragged anybody here.

PN18

MR BOURKE: Well, I am not suggesting the Commission has dragged us here, I am suggesting - - -

PN19

THE COMMISSIONER: You have responded to a notification and a listing.

PN20

MR BOURKE: Yes.

PN21

THE COMMISSIONER: In fact, I have listed the 99, so any suggestion that I sought to coerce anybody is completely misplaced.

PN22

MR BOURKE: Well, I am not suggesting, Commissioner, that the Commissioner has coerced anybody. I am saying that they have attempted to bring us into this forum to talk and circumvent the proper procedure under the AWA. They have engaged, in relation to this application, in gross misinformation. They are suggesting in their own material, which they are sending out to members, that we are not talking, when it is clear - and we will produce material - that we have engaged in dialogue in relation to these changing shift payments, and it is a dialogue that involves a roll out of three months, and their suggestion we are not talking is completely false.

PN23

Part of this application, which involves a larger campaign, has been an attack on Telstra's reputation. In material they are suggesting Telstra can't be trusted, so don't enter AWAs, they are being involved in some sort of trick. And we totally reject that. And that type of campaign is contrary to the Act, undermining the integrity of the AWA process. So we effectively say that these applications are being used for an improper purpose under the guise of an alleged industrial dispute, to generate some type of perceived industrial win.

PN24

It is an agenda that is not permitted under the Act. We say special circumstances exist. We went to put our case on those issues. We don't raise these allegations lightly, but we do want to stop this conduct, stop it now, and we want to seek leave to do so. If the Commission pleases.

PN25

THE COMMISSIONER: Thanks, Mr Bourke. Mr Waters?

PN26

MR WATERS: Commissioner, we say that our decision to list this as a 99 dispute is the simple and appropriate vehicle.

PN27

THE COMMISSIONER: You don't have any position to list. I list, you notify.

PN28

MR WATERS: Well, the reason we have notified - - -

PN29

THE COMMISSIONER: It is a popular misconception amongst CPSU officers; it ought to be corrected.

PN30

MR WATERS: I stand corrected. I will pass that on. We have notified this dispute so that we may seek to apply to the Commission for the exercise of the Commission's conciliation powers in resolving what we see as quite clearly a dispute involving our members with Telstra. We don't see that there are any special circumstances. The use of the Commission of its conciliation powers at its discretion is a matter of quite some considerable case law and practice. Our purpose for coming here in its entirety is to seek to resolve the dispute that we have with Telstra and that is affecting our members, and that our members have with Telstra.

PN31

We are not seeking in any way, shape or form to use the Commission, through our applications or otherwise, for any improper purpose. We come here for the purposes as we have stated them, and on that basis we don't believe that there are any special circumstances that give rise to a requirement for counsel.

PN32

THE COMMISSIONER: Thanks. Mr Bourke, do you wish to say anything?

PN33

MR BOURKE: That is the very issue which we want to argue with. We say it is not in the public interest to proceed to conciliation. It is a device to avoid the procedures under the AWA. We say there is an improper purpose, and we want to be heard on that, and we have material ready to go to deal with those points.

PN34

THE COMMISSIONER: Very well. Mr Bourke, I will grant you leave to run the 111(1)(g) argument, and I will hear you.

PN35

MR BOURKE: If the Commission pleases. Could I start by tendering a folder of documents. We have two folders for the Commission, one for Mr Waters.

PN36

THE COMMISSIONER: They are identical, are they?

PN37

MR BOURKE: They are, correct. One is just for your purposes, if you wish to mark any of the documents.

PN38

THE COMMISSIONER: Thank you.

EXHIBIT #TELSTRA1 FOLDER OF DOCUMENTS

PN39

MR BOURKE: Now, it might be convenient, sir, if you remove behind tab 1 the outline of argument, and at tab 2 the chronology of events.

PN40

THE COMMISSIONER: Remove those?

PN41

MR BOURKE: Just in terms of managing the material. As I indicated on the question of leave, the issue thrown up in the applications is an issue concerning change in shift payment arrangements, which involves some 700 Telstra employees. They are all regulated under AWAs, we will say contrary to material which we will take you to from the union, that there has been no attempt to communicate with the relevant employees. There has been, and it has been over a period of two months, and it is continuing.

PN42

There is no right under the Act for the CPSU to insist that we consult them about this change. We say that this application is a device to circumvent the procedure set out in the AWA which should be allowed to operate if someone wants to activate it.

PN43

THE COMMISSIONER: Now, there is a dispute resolution clause in the AWA?

PN44

MR BOURKE: Correct.

PN45

THE COMMISSIONER: Do you say that the CPSU can't be consulted, do you also say that an agent of the employee can't be involved in the dispute resolution clause?

PN46

MR BOURKE: As I understand it, the dispute procedure involves an entitlement for someone to observe, independent observer. That could be a union. But it is not for the union to - part of the procedure is not that we consult the union. The individual, if they have a grievance, has to invoke the procedure. And what we have here is effectively the union discouraging people from invoking the procedure and saying, we will handle the situation.

PN47

THE COMMISSIONER: But can someone invoke the procedure and the have someone advocate their cause for them?

PN48

MR BOURKE: Under the current procedure, no.

PN49

THE COMMISSIONER: So they have to stand alone with Telstra on that matter?

PN50

MR BOURKE: Correct.

PN51

THE COMMISSIONER: I follow. Thank you.

PN52

MR BOURKE: And what is attempting to be done is to just completely circumvent the AWA procedure and have this matter called on. Now, could I go to the chronology, which covers a number of the issues I flagged in terms of the application for leave. We start off at pre April 2001. There was a regime in relation to the payment of shifts, where each person worked the same number of penalty shifts and got paid an average based on the data as at December 2000.

PN53

Then after, if you turn over the page, after April 2001 a system was introduced for registering preferences of what shifts you wished to work. Not all people worked the same number of shifts, but they still got paid a uniform shift payment across the board irrespective of levels of hours worked. On 1 July 2000, if you turn over the page, there was commencement of the implementation of a remuneration system which more accurately reflected actual working hours put in, in relation to penalty shifts, and was more accountable. So people would be actually paid in terms of the actual hours they worked. And this was the commencement of a three month roll-out.

PN54

Now, that is, in terms of information, that commenced on 2 July. This is a template we have taken for the Como Centre, where there are similar experiences in other centres. And if one goes to tab 3, there were face to face briefing sessions, and tab 3 sets out some of the information that would be provided at those briefing sessions. And at paragraph 3 is a discussion of the rationale that clause 7.6 of the AWA contemplates, variations in total remuneration, and the second paragraph:

PN55

Staff members on individual contract currently receive the same payment regardless of how few or many shifts they work. Telstra wants to pay employees in accordance with the number of shifts they actually work. We believe that the most appropriate option is to pay for what you work scenario.

PN56

And then provided at these meetings, at tab 4, was a pro forma letter from the centre manager indicating, paragraph 2, it would commence on 1 October 2002. And at tab 5 there were some 18 Q and As of anticipated issues in relation to this change.

PN57

THE COMMISSIONER: Now, this, no doubt, is contemplated by the AWA, is it?

PN58

MR BOURKE: Correct.

PN59

THE COMMISSIONER: So you say you have a right under the AWA to make this alteration?

PN60

MR BOURKE: Correct. Now, on 4 July there was a further communications pack.

PN61

THE COMMISSIONER: Now, I don't mean to interrupt you, but having done so, can you also let me know how telling me about all this then comes to the point that I should refrain from further hearing, so that people follow the grievance procedure?

PN62

MR BOURKE: Yes. Because these applications have been associated with an industrial campaign by the CPSU. And we will take you to bulletins of the CPSU which suggest we have not been communicating with staff, and that the basis essentially of these applications was to show that the CPSU could force us to now talk. And we say we have been communicating with staff, that information is false, and it would just be vindicating the union's position, for example, if we went into conciliation, because they would now be turning around and crowing, we have finally got Telstra to talk, when that is, in fact, contrary to the actual situation.

PN63

Now, on 4 July there was a further communication pack went out, which is at tab 6, with an additional 10 questions. And then we have the first misinformation by the CPSU, talking about, they have been inundated with complaints across the country, you have been stripped of your entitlements. And we say on that, we have some 700 people affected by these changes, and we have had very minimal negative feedback, and no one invoking the dispute resolution procedure.

PN64

THE COMMISSIONER: But you take issue, do you, with the comment that the AWA cannot be altered without their consent?

PN65

MR BOURKE: That is incorrect. There is a variable component to the AWA, a variable remuneration component in relation to shift payments. And they would have access to the AWA through their members, and they will know that, they would have known that is wrong.

PN66

THE COMMISSIONER: As a matter of law you don't need to consult, you can just advise.

PN67

MR BOURKE: Correct.

PN68

THE COMMISSIONER: You can tell people that that is the way their new system will work, because they have signed an agreement that permits that to occur.

PN69

MR BOURKE: Correct. But we say we are consulting in the sense of providing information and assisting in the roll out of the change, and then - - -

PN70

THE COMMISSIONER: It is a consultation on implementation, is it?

PN71

MR BOURKE: Sorry?

PN72

THE COMMISSIONER: A consultation on implementation?

PN73

MR BOURKE: That is correct.

PN74

THE COMMISSIONER: Yes, I follow.

PN75

MR BOURKE: And there is no explanation at all that this is a change to a more accountable system. There is just a sort of scare tactic thrown up there, leave my money alone. And we then, on the 12th - on the 15th - the letter is dated the 12th - centre managers handed to all employees or staff in face to face briefings a further communication pack with that letter. And we indicate there we are aware there have been a number of queries, and we would say not surprising, given the earlier bulletin of the CPSU. And at tab 9 we provided a further combined question and answer package in relation to this issue, and we further provided at tab 10 a shift penalty calculator.

PN76

THE COMMISSIONER: Can I understand what you are moving from. You are moving from a salary calculated upon an assessment of shifts, which would give you the flexibility of rostering, to a salary calculated upon actual shifts work?

PN77

MR BOURKE: Correct.

PN78

THE COMMISSIONER: And has that given rise to reductions in income?

PN79

MR BOURKE: That will not be implemented till 1 October, and it is really speculative. Because of the change some people will win, some people will lose, because previously currently they are paid on an average across the board. Now, then go to tab 11.

PN80

THE COMMISSIONER: Well, it can't be benign as that, can it? What is the reason for doing it, if not for cost? Because you have the flexibility in work arrangement. What would be the reason for doing it, if not for cost?

PN81

MR BOURKE: Well, the reason is to generate higher accountability in terms of the hours you are working and your level of remuneration, because at the moment you are effectively working for the average.

PN82

THE COMMISSIONER: At the direction of management. You are rostered how management chooses to roster you.

PN83

MR BOURKE: Correct, yes. And we are moving away from people being told what to do, to people generating preferences for us. So it increases the flexibility in terms of people's own lifestyles. Now, at tab 11, the union write to us asking that we consult with them over this issue, and this is in circumstances where no one has invoked the dispute resolution procedure which is required to be invoked if there is a dispute. At tab 12, Mr Stapleton wrote back - - -

PN84

THE COMMISSIONER: Where does that take - not that I am inquiring as to the detail of that AWA, you understand - but would I be wrong in assuming that the AWA starts and finishes internally, in terms of any conflict resolution?

PN85

MR BOURKE: Correct. Now, on the 19th, Mr Stapleton writes back, advising that this involves a change in relation to the AWA, Telstra will consult directly with the employees, and there is no requirement to meet with the union on that issue. Now, we then have, at tab 13, the CPSU bulletin; AWA penalties update, time to make Telstra talk. And the misinformation starts:

PN86

First Telstra seeks to change the fundamental term of your employment, your fortnightly pay unilaterally. When Telstra say they don't need to talk to you about it, to add insult to injury, when we have been communicating, Telstra continue to push that you sign away your right to be represented or involved when Telstra decides to change your fundamental work conditions when you sign their AWA. It is time to make Telstra talk. Telstra attacks on AWA penalty pay without discussion of your agreement.

PN87

It goes on, and then:

PN88

We can make Telstra talk, and recognise that you have rights they need to comply with.

PN89

There is an attempt to set up a showdown, letting people know, we will make Telstra talk, and we are tough guys. And what eventually happens is, we have these applications. And then, very interesting, there is also a very serious allegation. Managers are not talking about the changes. And we say, well, we have documentary evidence to show that has occurred. And some are making threats, hoping that you just shut up and accept Telstra's view.

PN90

Now, we treat that allegation as very serious, and I will come back to this. But they were asked to put up in relation to evidence on that, and they didn't come up with anything. And then under resolving disagreements, each AWA contains a clause headed, resolving disagreements. It says that:

PN91

The Telstra fair treatment process is used when there is a disagreement and your employment or the terms of your AWA. The fair treatment process allows us to force the first step on Telstra having a discussion, and the fundamental condition changes.

PN92

Well, that is just incorrect. They are attempting to re-write the AWA, and we see this application as a device to attempt to re-write it:

PN93

The discussion may lead to a fair and reasonable outcome with Telstra, however, fair treatment is an all internal process controlled by Telstra. We will need to see if it moves us beyond talking about the issue of a resolution of it.

PN94

We say that flags that they were attempting to re-write the procedure by they effectively controlling it.

PN95

THE COMMISSIONER: Mr Bourke, one issue that troubles me, that you might consider when you are taking me through this material. It is one thing to put to a member of the Commission that it should refrain from hearing a matter until a grievance procedure has been properly followed, and it is not an unusual submission, and the Commission, indeed, is enjoined by the legislation to ensure that dispute settling machinery is used.

PN96

But one question that goes through my mind is, given the nature of the AWA in the answer to the question you just gave me, am I being asked to refrain from hearing a matter in a way that denies to individuals the right to grieve to the Commission forever, if I uphold your argument?

PN97

MR BOURKE: No, it is not a denial forever.

PN98

THE COMMISSIONER: Just that if I send it away now, then it is the obligations of the employees to grieve under the AWA. If they are not satisfied with that result, do you run the same argument if they come back?

PN99

MR BOURKE: Well, we will have to re-visit the situation, but we would say they can then issue an application, we can look at it on the merits.

PN100

THE COMMISSIONER: The submission that you are putting raises that question in my mind. If I refrain from further hearing it, on the argument you have put to date, am I making a decision that employees covered by AWAs can't grieve to the Commission?

PN101

MR BOURKE: Our position is that the issue should be dealt with within the four walls of the grievance procedure.

PN102

THE COMMISSIONER: Thank you. I am reminded of somebody saying, well, I am interested in the answer you gave, could you give me the answer to the question.

PN103

MR BOURKE: So we are saying, because that grievance procedure doesn't contemplate effectively a final right to the Commission - - -

PN104

THE COMMISSIONER: That is right. You are asking me to abandon the jurisdiction in favour of your internal grievance mechanism.

PN105

MR BOURKE: Well, we are seeking that just the AWA procedure be followed, and that should deal with grievances.

PN106

THE COMMISSIONER: No, I understand that. I understand that. That is why I wanted you to contemplate on what basis I refrain from further hearing it. If I refrain from further hearing it on the basis that people should follow internal grievance procedures, that is one thing. If I refrain from further hearing it, that those grievance procedures start and finish within Telstra, that is saying to those persons that they are denied that I am refraining their application and denying them the jurisdiction entirely.

[10.35am]

PN107

MR BOURKE: Well, we say that jurisdiction is that the Act contemplates that AWAs must have a procedure for grievance, or there is a default procedure. We have put in a procedure, procedure has been approved, that should be the procedure, and it shouldn't be re-written. So that is our position.

PN108

THE COMMISSIONER: Yes, I follow. Thank you.

PN109

MR BOURKE: Now, we then have at tab 14 our response from Mr Stapleton to Mr Jones, to the earlier bulletin. Paragraph 1 we take direct issue - sorry, paragraph 1 under the CPSU bulleting, that subheading, we take direct issue that managers are not talking about changes, and are making threats. We then talk about the fact that there has been consultation extensive and directly with our AWA employees, involving centre managers. We then, at the third paragraph under that subheading, raise the issue that:

PN110

We are not aware of any threats, we do not tolerate threats in the workplace, and we request that you provide me with details of the date of the threats, those managers involved, and the nature of the threats, so that these allegations may be investigated.

PN111

Now, if they are meant to be acting on behalf of their members, and we are saying to them we will treat these issues seriously, give us the details in writing, and that we asked for that within seven days, or a retraction, and we have heard nothing. We have heard nothing. And we say that reflects the tone of the material, which is pure assertion, complete lack of facts substantiated.

PN112

We then had another bulletin, at tab 15, from the CPSU, talking about the IRC has the power to make Telstra talk, the third line "Local managers have ignored your request to talk to us." And then we have, at tab 16, an e-mail that went out to various employees referring to this notification, and in the second paragraph:

PN113

A date for the hearing will be set shortly by the Commissioner. If we are to get the best out of this conference it is imperative that you all encourage everyone that has not already done so to complete the AWA survey that was attached to one of the bulletins, and return it. We need lots more numbers for the Commission to see that staff are angry and want action, and generally believe they have been wronged by Telstra. As we have said many times before, this is in part a numbers game, and you need to understand the importance of that. Telstra didn't have you sign individual contracts for nothing.

PN114

Now, we want to say a number of things about that. They have effectively been pumping out material saying everyone is angry and unhappy. But clearly, when it came to the Commission, they are desperately doing the rally cry to generate some numbers to justify the story they have been telling, and they have generated out of about 700 people about seven or eight, and that is after a campaign of misinformation. And we say that reflects the fact there has been genuine consultation.

PN115

But then there is this very nasty attack, Telstra didn't have you sign individual contracts for nothing, and it is a direct attack on the integrity of Telstra, the integrity of the AWA process, effectively warning people off. You got dudded on your AWA, and also, don't ever enter another AWA with Telstra, they are not to be trusted to treat with them. Now, that is a terrible allegation, it is an allegation that undermines the AWA process, contrary to the Act, and we say it reflects, it is part of the rally cry in relation to attempt this application. And then we see, in the last sentence in the next paragraph:

PN116

Get on board and get others to join the union now as a sign of support and belief you can win. Remember, the Commission is far more preferable and quicker than going to the Federal Court.

PN117

And we say it suggests that this whole exercise is part of a recruitment drive, where they are trying to say, we can make Telstra talk on our terms, and this is the way we are going to do it.

PN118

THE COMMISSIONER: Why would anybody be interested in joining the union if they are happy? It is only if they are unhappy would they be interested in doing that.

PN119

MR BOURKE: And what the union are saying in their bulletins - - -

PN120

THE COMMISSIONER: Is, be unhappy.

PN121

MR BOURKE: You are unhappy, and you should be unhappy.

PN122

THE COMMISSIONER: Well, people aren't silly. They are either unhappy or they are not. They are either going to be happy with what you propose and implement, or they are not.

PN123

MR BOURKE: Well, it is being rolled out, it is to commence 1 October, and they are generating a campaign to not assist in people getting their mind around these changes.

PN124

THE COMMISSIONER: They have a difference of view from that which is being implemented.

PN125

MR BOURKE: And we say what they are expressing, in terms of there has been no communication, is wrong. That is clear from the documents and the chronology.

PN126

THE COMMISSIONER: Well, they say there has been no consultation. There has been advice.

PN127

MR BOURKE: Well, there has been advice, and it has been real.

PN128

THE COMMISSIONER: Yes. But you have advised people on how their work will change.

PN129

MR BOURKE: Correct.

PN130

THE COMMISSIONER: You haven't asked them if their work will change, you have advised them on how their work will change and how their remuneration will change.

PN131

MR BOURKE: Yes.

PN132

THE COMMISSIONER: What area is open to them to grieve in relation to this decision?

PN133

MR BOURKE: They can invoke the dispute procedure under the AWA.

PN134

THE COMMISSIONER: And how would that impact upon the decision that is made? What capacity is there for that to impact upon the decision that has been made? Is it possible that a decision could be made that they could go back? Would there be alterations to that for personal circumstances, family responsibilities? Is there any capacity for them to impact upon the decision by using the grievance mechanism?

PN135

MR BOURKE: Well, I can't anticipate what the outcome of the grievance procedure will be.

PN136

THE COMMISSIONER: Well, somebody is grieving because they are losing money.

PN137

MR BOURKE: But all I can say is, if someone raises a legitimate point, there is no reason why that won't be taken on board and dealt with. That is what the procedure is for.

PN138

THE COMMISSIONER: Well, if somebody says, I am losing money as a result of the change, is that a legitimate point in light of the policy decision?

PN139

MR BOURKE: It is a basis for the grievance to be invoked, and there needs to then be an examination of whether they are unfairly being disadvantaged.

PN140

THE COMMISSIONER: No. You have taken a policy decision, your client has taken a policy decision to alter payment for systems of work. You have said to me earlier that will result in some getting more, some getting less. It is contemplated by the decision taken by management that some will get less. It would only seem to me logical that any grievance about getting less would be met with a response that that is the system we have introduced, in the full knowledge that you will get less.

PN141

MR BOURKE: Well, can I just say this. The system over this two months is not written in stone, it is being fine tuned as we get feedback. And I omitted this from the chronology, but there is currently scheduled focus groups, and one of the issues is going to be timing of payments. So it is not written in stone.

PN142

THE COMMISSIONER: I am not being critical, I am just seeking to understand what avenues are open to people to grieve. If they go through the process, what do they raise with you? Now, it just seems to me it is a fairly straightforward proposition. You want to change the system of payment, that will mean that some people will get less. Now, they come to you and they say, I am earning less money than I did before. Now, unless I misunderstood the decision that has been taken, the answer will be yes, and that is no basis for grieving because that is what we are putting in place.

PN143

MR BOURKE: Now, any of these changes are living processes, and as information comes forward there has to be a reassessment, and a proper basis for reassessment to ensure the people are fairly paid, as information comes forward to that degree, there should be a response.

PN144

THE COMMISSIONER: But on one view people are fairly paid if they are only paid for the time they work.

PN145

MR BOURKE: We will have to deal with each grievance on a case by case basis, and if someone raises a fair point as to the integrity of the system, it will have to be looked at.

PN146

THE COMMISSIONER: I am reminded of the boy with the finger in the dyke, that an individual telling Telstra that they don't like getting less money, and when that is the policy that you wish to invoke. I don't know why you would want to be shy about it.

PN147

MR BOURKE: Well, as I said, I am not being shy about it, but it is not appropriate to pre-judge the outcome of any grievance process. Now, could I move back to the outline of argument. And going to point 5 of the outline, the Act does recognise a role for the CPSU, for example, in being a bargaining agent, if there is to be any variation to the AWA itself. This is not such a circumstance. And point 6 and 7 we have already made. We say really this is a de facto attempt to create a consultation procedure involving the CPSU which is not contemplated by the dispute procedure, or contemplated by any right under the Act.

PN148

Point 8 is a more troubling matter, which is the positive discouragement. As part of this procedure they have effectively told people that we will do the running in this matter, and discourage people to invoke the procedure. If there is genuine dispute to any individual in Telstra, the procedure should be invoked and the matter dealt with. And it is contrary to the scheme of the Act to have the union to the contrary, discouraging people from invoking the dispute resolution procedure which has been incorporated into the AWA, because what is contemplated will occur.

PN149

And as I have indicated, there has been a general attack on Telstra, in point 11, as to our integrity in relation to AWAs, and the beating of the drum as to the fact we are not talking. And the point at point 12, point 13, they have set up, as indicated in their bulletins, that we can make Telstra talk, so the generation of seeking conciliation is to generate that industrial outcome, to create a precedent where effectively they are saying to members, you don't need to bother with the dispute procedure, we will go via conciliation, and issues like this come up again we will have the CPSU saying, you have to talk to us, forget about the dispute resolution procedure, if you don't we will do it all over again.

PN150

I won't say anything about the compulsory conference hasn't been called on. We say, in the circumstances, it is not in the public interest for this application to be entertained. And we say the bottom line is, that the principle of AWAs is, you enter into them freely, they have been approved, each individual has chosen, relevant individuals have chosen to enter these AWAs and abide by the terms. And that goes to the heart of the scheme of the Act. And this application is really to undermine that.

PN151

THE COMMISSIONER: You would actually prefer it if people were unhappy, if they told you?

PN152

MR BOURKE: That is correct. And, in fact, under the AWA they have to tell us if they consider they are in dispute. And the union is setting up this illusion that, don't do all that, we will handle it, and we will come here. And the process doesn't get invoked. They are inducing people not to abide by the AWA. If the Commission pleases.

PN153

THE COMMISSIONER: Thanks, Mr Bourke. Yes, Mr Waters?

PN154

MR WATERS: Commissioner, could I ask for a short recess just to read through the Telstra document?

PN155

THE COMMISSIONER: Of course. We will adjourn until a quarter past 11.

SHORT ADJOURNMENT [10.52am]

RESUMED [11.20am]

PN156

MR BOURKE: Just before Mr Waters starts could I just clarify two matters?

PN157

THE COMMISSIONER: Yes.

PN158

MR BOURKE: One was the issue of costing. The system that will commence on 1 October will involve the same formula based on the same base rate, the same penalty rate, but instead of being paid the average of what people are working, you will be paid focusing on the amount of actual penalty shifts you work. That is the way it will work. So that is why there are winners and losers, depending on people's preferences. Can I just say that we have been tracking preferences since April 2001, and we are finding that there is a 70 per cent success rate in people meeting their first or second preference.

PN159

And the only other point we wish to make - I don't know if I made that - is that part of our concern with this application is that there is an attempt to set a precedent to avoid the dispute resolution route and take this route.

PN160

THE COMMISSIONER: You addressed the costing, did you say? Were you going to go any further on that? That didn't give me any costing.

PN161

MR BOURKE: No, I didn't give you a figure. But it just means that effectively if people work then the same average hours as the system calculated, there would be no change, but it will be determinative on their preferences plugged into business demand.

PN162

THE COMMISSIONER: I follow, thanks. Yes, Mr Waters?

PN163

MR WATERS: Commissioner, obviously we don't accept what has been put. We think it is a little unfortunate probably for my friend in terms of the briefing or instructions that he has received. To deal with a number of matters that have been raised, and then come to the particular outline of argument. I think the first point, or one of the points that has been made, was that the CPSU has been actively encouraging staff not to proceed under the fair treatment review process that it has called up by the dispute or grievance clause of the AWA.

PN164

A fair treatment review process over this matter was completed on Monday, 15 July, the day before the CPSU wrote to Telstra with regard to this matter. In the exchange of e-mails that took place with regard to that fair treatment review, the acting manager of the Brisbane centre that is affected by this dispute, advised that on 9 July:

PN165

This is confirmation I have received, your below request for a fair treatment review. I am currently seeking guidance from HR in Melbourne, and will be formulating a response to you within seven working days of the receipt of your below e-mail. At that stage I will discuss with you the outcome from HR, as I will still be acting in Kelly's role.

PN166

So follow up e-mail that confirms the meeting that occurred on 15 July sets out some details:

PN167

I am pleased that this concludes your fair treatment review. You and all AWA staff will be receiving a letter shortly which details questions and answers, that should alleviate any further queries. I am pleased this concludes your fair treatment review. Please don't hesitate to ask if you have any further questions.

PN168

While the e-mail does not say so at any point, it is clear from the overall context that the grievance review had been turned down, and that Telstra was still proceeding with the changes.

PN169

THE COMMISSIONER: Could you show that to Mr Bourke so that he can receive instructions on that please. You can respond, Mr Bourke, but essentially what Mr Waters is saying, that somebody has asked for a review, an individual has asked for a review, and they have been told this is what is happening, that concludes your fair treatment review. Now, does that mean that that person has invoked the grievance procedure? I think that is the question. Yes, Mr Waters?

PN170

MR WATERS: There is also a very serious issue that has been raised with regard to the CPSU not responding to threats. And, Commissioner, if I could take you to tab 14 of TELSTRA1. Mr Stapleton, in a letter to Mr Stephen Jones, indicates that in the second last paragraph on the first page, that he is not aware of any threats being made by Telstra managers to AWA employees in respect of Telstra's shift payment policy change. If I could tender an e-mail. This is an e-mail from a team leader in the Melbourne Como office, and regards a briefing which, in fact, didn't occur on Friday, the 13th, it was Friday, 9 August. It went directly to the matter of the change to shift payments.

PN171

THE COMMISSIONER: Well, I won't mark that because the e-mail doesn't go to what you just said. I understand that is your submission, but I won't mark it at this stage because it is just an apology for some reason. Now, if the matter goes further you would have to then lead evidence in relation to what it was an apology for.

PN172

MR WATERS: It is our submission that the apology is for the purpose of some very intemperate remarks to the team regarding the shift payment issue, including staff being given three options, which include a deal with it, stop talking about it, and the final one involved, you can eff off, we don't need negative people here. In the event that evidence on this matter is sought, we do have a witness available in the Court today who could lead evidence on this matter. I have two statements regarding what happened at that meeting.

PN173

The staff, I submit, were also advised during that meeting that if they were heard talking about shift payments they would be reported directly to the centre manager. We consider that that does constitute threats, and that was one of the reasons for our raising the issue of those threats in our bulletin to members. We think it is important that that is on the record, because we would say that in terms of members who have been prepared to be directly identified to Telstra as explicitly seeking our representation, there have been genuine concerns and fears that taking that action may lead to some detriment for those employees, despite that over 40 odd members have specifically authorised us to identify them individually as people that we do represent.

PN174

Beyond that, the CPSU has a wider membership who are also indicating very firmly and clearly that they do seek our representation on this matter in discussions directly with Telstra. I would go back. There has been a number of comments made about the CPSU and abuse of process, and what it is that we are seeking throughout this process. The fair treatment process that Telstra has in place and that is called up by this AWA, indicates that grievances are to be dealt with by the decision maker, and in the event that the outcome with the decision maker is unsatisfactory, then they are to be dealt with by the one up manager from the decision maker.

PN175

The grievance process that I referred to before was dealt with by the centre manager, who was not the decision maker in this issue. It is quite clear, we submit, based on conversations that centre managers have had with our members, based on conversations that a centre manager has had directly with me, that the centre managers were not involved in the making of this decision at all. They have been involved in advising staff of that decision. And in that fair treatment process that was gone through, they were also the person who was apparently determining on the basis of advice from HR. And the way they phrased their response to that grievance process quite clearly was in terms of, they were advising the outcome to the employee based on the advice that they had received from HR.

PN176

In our letter to Telstra of 16 July, a letter that was sent after at least that fair treatment process had been completed, we sought to have discussions with a level of management in Telstra that we felt was reflective of who the likely decision makers in this process actually were. What we say we are doing throughout this process, and in many ways with the seeking of the - if we proceed to the compulsory conference with the managers that we have known from Telstra, is to actually engage in the process that is outlined in the fair treatment process, which is to have a discussion about a grievance with the people who actually made that decision.

PN177

Now, we say also that Telstra employees have a right to be represented by CPSU in any grievance process of that nature. Not only do they have a right, but clearly when you are dealing with decisions that are made by very senior levels within Telstra management, it is only just that those staff have that right to representation and are able to be represented.

PN178

THE COMMISSIONER: I think that is a matter that one could say is the subject of controversy.

PN179

MR WATERS: I think that is probably right. We say we recognise that it is a matter of controversy. We say that the decision about CPSU has representation rights, is a matter that the power rests with the Commission to determine. And that if Telstra seeks to remove our rights to representation or a particular group or classification of employees, then they have the liberty to apply for that to occur under section 118A of the Act. There has been no application from Telstra, there has been no, apart from Telstra's assertion in Mr Stapleton's letter, that Telstra does not consider that the union has a role in a process concerning the application.

PN180

THE COMMISSIONER: Wouldn't you have had a right under the award to notify a dispute, or to seek to grieve? It is just that these individuals have excluded the operation of the award.

PN181

MR WATERS: We would accept that the operation of the award is excluded, which is part settlement of the industrial dispute. There is nothing - - -

PN182

THE COMMISSIONER: No, it has got nothing to do with an industrial dispute. That is not the head of power that is used.

PN183

MR WATERS: In the making of the award?

PN184

THE COMMISSIONER: No, making the AWA.

PN185

MR WATERS: However, there is nothing in the part of the Workplace Relations Act that deals with the making of an AWA.

PN186

THE COMMISSIONER: No. But to the extent of inconsistency, the AWA applies.

PN187

MR WATERS: The AWA, I think, at 170VQ, the effect of the AWA is the exclusion of the award, it is the exclusion of the part settlement of the industrial dispute. There is nothing in part VID at any point that excludes the operation of the industrial dispute itself.

PN188

THE COMMISSIONER: No.

PN189

MR WATERS: In terms of the effect of awards and orders, given that what we are seeking, we would say is the exercise of the conciliation powers of the Commission, we don't see that the issue of whether the Commission has arbitral powers of settlement of the dispute, is in question here.

PN190

THE COMMISSIONER: The company don't want to talk to you, they want their employees to talk to them through their grievance mechanism. Now, I understand your submission that says that has been attempted, and it has a perfunctory response. But what do you say to the proposition that employees who have signed these agreements voluntarily, must have been voluntarily - I can only go by what the Act says - now have an obligation to follow the grievance mechanism contained in those agreements.

PN191

MR WATERS: Well, as either voluntarily or for new employees, it was a legal coercion.

PN192

THE COMMISSIONER: I am sorry. If it was new employees it was a condition of the contract.

PN193

MR WATERS: We say that the dispute finding that exists between Telstra and ourselves - - -

PN194

THE COMMISSIONER: We are not talking about questions of power, we are talking about the exercise of discretion. Mr Bourke has asked me to exercise my discretion to refrain from - he hasn't argued that I haven't got the power, he has argued that I should refrain from exercising my discretion until persons who are bound by agreements that they made implement the terms of those agreements, that is what he is asking me to do.

PN195

MR WATERS: We say that members have sought to implement it either directly by going through the grievance procedure, or that members have sought to use that grievance procedure with a representative, which is entirely reasonable and just, given the level of decision makers within Telstra that made these decisions.

PN196

THE COMMISSIONER: Well, Telstra disagree with you in relation to representative. We have got a big case upon which I am reserved, where that is heavily argued. They just say, you have no rights of representation, you have rights of observance, but you cannot and will no speak on behalf of your members or employees. That is their very firm position.

PN197

MR WATERS: I understand that that is Telstra's very firm position. But we say that the question of representation is a question for the Commission, and not a question - - -

PN198

THE COMMISSIONER: In a dispute matter, yes.

PN199

MR WATERS: And not a question for Telstra.

PN200

THE COMMISSIONER: Yes, I understand.

PN201

MR WATERS: The determinative power with regard to the right of representation is a power that is vested by Parliament in the Commission, it is not a power that is vested by Parliament in Telstra, as much as they may wish it.

PN202

THE COMMISSIONER: I understand that aspect of your submission.

PN203

MR WATERS: To go back to basics, we do say that the change Telstra is seeking to implement is not contemplated by the AWA. There is a point of disagreement between us on that matter.

PN204

THE COMMISSIONER: Well, notwithstanding the fact that your e-mail says the Commission is cheaper, why don't you go straight to the Federal Court? I mean, if that is your view on behalf of those people you represent, why wouldn't you be in the Federal Court this afternoon?

PN205

MR WATERS: Because we prefer to seek to settle disputes with the employers that we represent members for.

PN206

THE COMMISSIONER: The employer doesn't want to. You have a firm statement from the employer, they do not want to deal with you, they do not want to settle the dispute with you. I don't think they could make it any plainer; they don't want to see you. Now, you have come here, you want to talk to them.

PN207

MR WATERS: We say that in our experience we have dealt with many employers that would really rather not see us, and that have a very clear view that they would rather not see us. Where the parties are, in fact, brought together to see whether they can in good faith resolve or reach a settlement, that often, despite the fact that the parties didn't want to see each other or meet previously, a settlement can, in fact, be achieved.

PN208

THE COMMISSIONER: That is often the case. But nobody should be criticised for not wanting to talk. If you don't want to talk about something, I can't criticise you for not wanting to talk about it. I haven't required Mr Bourke to be here under your application, although he comes here to defend his client's view. Now, nothing should be read into anybody's submission if they say, we disagree with you. I don't prima facie find that to be a criticism of one side or the other, if a disagreement exists.

PN209

MR WATERS: I wasn't seeking to criticise the other side, I was just seeking to acknowledge that there is a disagreement, that the Commission has as its function to seek to settle disagreements and industrial disputes.

PN210

THE COMMISSIONER: Yes. But let us say that I decided to convene the conference. I can't require people to agree, I can't require people to talk. Telstra could be entitled in any conference simply to say to me with the usual phrase, with the greatest of respect, we don't want to address the issue. We are here, we will remain here while you are sitting here, we simply don't want to talk about it. And I can't force them to.

PN211

Now, that normally, in past years, is called the Commission finding the conclusion of conciliation, and then exercising arbitral powers. That may still be open to you in relation to an exceptional matter. But I can't force anybody to talk, I can't force anybody to agree. I can force people to attend. I have elected not to do that at this stage. But having attended, I can't force them to talk.

PN212

MR WATERS: We recognise you can force people to attend as part of the exercise of conciliation powers. It may or may not be, if the parties that are directly involved in making that decision are required to attend, that a conversation that leads to settlement may occur. It may not, but it very well may if the parties aren't put in a situation where they are together in a room with a subject matter before them. Then there is no possibility of settlement.

PN213

What we are seeking is to establish those pre-conditions for settlement. We would go further. We would say that arising out of us taking this action we have seen some movement from Telstra in terms of the form of discussions that are taking place around this point. I have received a phone call this morning. It would appear that for the first time today or yesterday we have actually possibly identified who Telstra are identifying as the decision maker, which is a Mr Stephen Fox. We understand that there has been communication through centre managers from Mr Fox seeking to find out whether staff are upset by the decision. And in view of whether the staff are upset or not by the decision - - -

PN214

THE COMMISSIONER: Well, that is in their own hands, isn't it? In light of what Mr Bourke said, they can freely, without fear, tell people that they are upset, and raise a grievance. In fact, you could almost imply into what Mr Bourke said, that Telstra would be disappointed if they didn't hear from their own people if they were upset.

PN215

MR WATERS: But that doesn't go to providing to Telstra the right to tell those people, if they are upset, that they can have somebody to represent them in telling Telstra why they are upset.

PN216

THE COMMISSIONER: Well, that is a different matter.

PN217

MR WATERS: And that is a matter which we say the Commission has the power to determine, not Telstra.

PN218

THE COMMISSIONER: Well, you have come here to say on behalf of your union and those people named, that they are upset.

PN219

MR WATERS: We say that the whole scheme of the Act is about the settlement of industrial disputes.

PN220

THE COMMISSIONER: That is not the case. That is a part of the scheme of the Act. The Act, in fact, even in that part of the scheme, contemplates that some disputes won't be settled. And, indeed, that is Mr Bourke's application, that I don't settle this part of the dispute, that I refrain from further hearing it. It is a part of the scheme of the Act that a dispute can continue and not be settled. It is another part of the scheme of the Act that AWAs can be implemented, another part that collective agreements can be implemented, non collective agreements can be implemented.

PN221

The prevention and settlement of industrial disputes has gone from a high order in the objects to a very low order in the objects. It is still an object, to the extent that they are given any weight, as to the order of appearance.

PN222

MR WATERS: Well, in terms of merits, there are a few objects that come into this. One of the objects, 3H, goes to ensuring that employee and employer organisations registered under this Act are representative of, accountable to their members, and are able to operate effectively. We say that what Telstra are seeking to do is to limit that effective operation. And, again, it is quite clear, in terms of the objects - - -

PN223

THE COMMISSIONER: No. You can represent people here, and I can either hear you or not hear you. What they say is, you can't represent a grievance to them under an agreement they have signed with their own employee. That is their view.

PN224

MR WATERS: And we have a different view again of what that AWA.

PN225

THE COMMISSIONER: I know.

PN226

MR WATERS: There is nothing in that AWA that indicates that a person can't be represented by the union. There is nothing in their fair treatment process that indicates an individual can't be represented by their union.

PN227

THE COMMISSIONER: They have put extensive argument that says that is not right, that I have heard. They choose not to. They do not recognise the union when it comes to matters of that nature. And that should come as no surprise to you.

PN228

MR WATERS: I wouldn't say I am shocked by it, no. Which is one reason why the Commission has vested in it conciliation powers, so that where those situations arise the Commission can use those powers of conciliation.

PN229

THE COMMISSIONER: Well, you say conciliation is not at an end. If I were to have a guess at Telstra's view, conciliation is at an end in relation to this matter, because they say there can be no conciliation with you, so therefore it must be at an end.

PN230

MR WATERS: Well, we say, once again, in terms of our experiences, when people are actually brought to the table to talk about the matter in hand, that that often does lead to further avenues that may lead to a resolution, and that positions that are put prior to that occurring are not determinative of what will occur when the meeting to talk about the substantive matter occurs. And in some ways that is almost recognised in the powers that the Commission has to force people to come to the table even though prior to that, the fact that there is the capacity for the Commission to order a compulsory conference in conciliation.

PN231

THE COMMISSIONER: Yes. But it has got something to do with horses and water.

PN232

MR WATERS: Most horses do drink when they have got water though. In terms of the costing that my friend has referred to, admittedly back at the envelope calculations lead us to understand that over $1 million in entitlements will be lost to the employees collectively arising out of this process. There are over 600 employees affected, a significant proportion of those employees are CPSU members. As indicated to you before, over 45 have expressed their view quite clearly, and are prepared to be named to Telstra, that they wish to be represented by the CPSU, and that they seek Telstra to meet with their representative in terms of resolving this dispute.

PN233

In terms of costings again, some of our members face losing up to estimates of $7000 a year. We don't understand, again, the presentation by my friend was the first time Telstra have put that the existing penalty payment is, in fact, an average penalty payment. The basis of the payment until this point in time has not been clarified, the existing payment has not been clarified by Telstra. We say that the Commission should act because Telstra are seeking to deny its employees who have signed the AWA rights to a fair hearing under that grievance process.

PN234

Staff have been, who are affected, have been directly told that there is nothing that can be done, that Telstra has already run this position past its lawyers, and that it will be implemented. In terms of those who have actually proceeded with using the fair treatment process, that process has not led to those staff being able to engage in a conversation with the decision makers. Instead, Telstra has had their responses dealt with by a much lower level of management on the basis of instructions from higher levels of management.

PN235

As I indicated, we are at this point in time, the employees affected - and this goes to the issue of whether Telstra have been talking - the employees affected are still unclear as to who it was who made the decision in this case. As I indicated, we got some recent information that seems to indicate it may be a Mr Stephen Fox.

PN236

THE COMMISSIONER: Do you know who Mr Fox is?

PN237

MR WATERS: I think he is somebody high up in Telstra Mobiles, is the way it was put to me.

PN238

THE COMMISSIONER: All right, you don't know.

PN239

MR WATERS: I didn't have time this morning to check precisely. We say that the Commission should exercise its discretion to bring the parties together because that may lead to a settlement to this dispute through an agreement and settlement reached between the parties. We say that there are a very significant number of employees who face an ongoing uncertainty if a settlement to the dispute is not reached prior to 1 October.

PN240

And while there are other mechanisms available to those members, such as taking the matter to the Federal Court, that is a process that takes quite some considerable time. And in the event it was to proceed down that track, it may well be that the members would forego in the medium term quite some considerable income while that matter was being proceeded with to finality.

PN241

So we say that any efforts that the Commission can facilitate that may lead to the settlement of the dispute - and we don't put it any higher than may lead to the settlement of the dispute - are worthwhile taking in the situation where the Commission does have power to take such actions, because that is the just thing to do.

PN242

THE COMMISSIONER: Yes, I follow. Thanks. Yes, Mr Bourke?

PN243

MR BOURKE: Thank you, Commissioner. Can we just say, the bottom line is, it is apparent from Mr Waters' submissions, he is just unhappy with the AWA procedure, he wants to circumvent it, and this is the way he is doing it, and that is apparent from the bulletin that we took you to at tab 13.

PN244

THE COMMISSIONER: You say this doesn't have the characteristics of a collective dispute?

PN245

MR BOURKE: Well, we really don't want to get involved with, is this a paper dispute or is it not a proper dispute?

PN246

THE COMMISSIONER: No. You misunderstood my question, and you may wish to take instructions on it. Is this an individual grievance or a collective dispute?

PN247

MR BOURKE: We say in the end of the day these amount to individual grievances that can be dealt with under the procedure. He is saying, but let us just talk about it and can see what can happen. We cannot be seen to undermine the integrity of a system we voluntarily agreed to participate in, the individuals voluntarily agreed to participate in.

PN248

THE COMMISSIONER: How many people are affected by the decision?

PN249

MR BOURKE: We understand there is 700 people.

PN250

THE COMMISSIONER: 700 people. And you characterise that as an individual grievance?

PN251

MR BOURKE: They are ultimately individual issues which can be - - -

PN252

THE COMMISSIONER: Is there anything that would be collective under that definition, when you have got at least 40 people who say they are unhappy with it?

PN253

MR BOURKE: The fact that they may have common points does not mean the procedure has no work to do; it does. And we totally reject the idea that this is the route you go down, and you completely circumvent and ignore the procedure. Can I just say this in terms of the threats. I will firstly say this, and we do apologise. They have found one example we are not aware of where someone has invoked the procedure in Brisbane, and we do note thought that they are not one of the applicants.

PN254

THE COMMISSIONER: Has there been any direction given by central human resources as to the handling of this matter? If so, what are those directions?

PN255

MR BOURKE: You mean the handling of a dispute?

PN256

THE COMMISSIONER: Any grievance by an individual.

PN257

MR BOURKE: Well, my instructions are no. But we have come here, the senior people, unaware of the Brisbane - - -

PN258

THE COMMISSIONER: That e-mail tends to - if I heard it correctly - it was something that human resources had given a direction, I can't do anything until I contact human resources.

PN259

MR BOURKE: My instructions are, this appears to have been dealt with at HR Mobile level, not at HR Corporate level, and, for example, Mr Stapleton wasn't aware of this procedure. Now, can I say something about the threats. This is another example where we say it is unsatisfactory. Mr Stapleton wrote to Mr Waters, saying, look, we will take this allegation of threats very seriously, please provide us details in writing. Now, what we have is, he appears to have come with a couple of statements, but to the Commission. He hasn't provided them to Mr Stapleton so the usual procedure for investigating the matter could occur. And we welcome that that material - - -

PN260

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

PN261

MR BOURKE: Yes. But what we say is, I am not talking about the e-mail, and we are not stating a position saying there are no threats whatever we seek, give us the information, we want to investigate this. And, unfortunately, what we have is the union trying to control the situation and bring it into this forum, when they could have just dealt directly with Mr Stapleton on that issue. And their really final throwaway to justify their application is to undermine the AWAs and to suggest well, they really were entered into by coercion, and that really we are entitled to the presumption of voluntariness by the existence of the AWAs.

PN262

THE COMMISSIONER: Well, he said that if they were new employees, they were required to sign AWAs which can be a condition of the contract. There is nothing - you voluntarily have a job or you don't have a job.

PN263

MR BOURKE: Well, there is always an issue of level of bargaining in relation to any arrangement.

PN264

THE COMMISSIONER: It is a matter for the Act, not for me, at this stage.

PN265

MR BOURKE: Yes. If the Commission pleases.

PN266

THE COMMISSIONER: Thank you. Very well, I will consider what has been put and I will adjourn for half-an-hour and then I will announce my decision.

SHORT ADJOURNMENT [11.56am]

RESUMED [12.35pm]

PN267

THE COMMISSIONER: I will subsequently, hopefully later on this afternoon, publish this decision and have copies made available to the parties. The CPSU has notified the existence of an alleged industrial dispute as has 10 employees of Telstra Corporation. The dispute is said to be and I quote:

PN268

Changes Telstra seeks to make to unilaterally alter members' shift payments, the way in which it is calculated and varied and Telstra's refusal to meet and discuss the matter.

PN269

Telstra argues that it is not in the public interest for the Commission to deal with the matter as the employees concerned are bound by Australian workplace agreements which contain a grievance procedure. It is submitted that this grievance procedure should be implemented in the first instance. I am asked to refrain from hearing the matter. The CPSU argued that its members are unhappy with the decision made by Telstra, the grievance procedure does not operate given the decision taken, it has a right to represent members and bring collective grievances to the Commission and that it only seeks to conciliate with Telstra with a view to settlement.

PN270

I am far from sanguine about a proposition that a grievance resulting from a policy decision of this character can be effectively dealt with on an individual basis through the fair treatment process. This is not a complaint about an issue affecting only an individual, this has the character of a collective dispute. However, I will at this stage accede to the proposition advanced by Telstra that the fair treatment process is the correct avenue for this issue to be advanced.

PN271

I do so at this stage because it is the formal grievance mechanism that has been adopted by the employer and some of the employees. The waters should be tested. No Telstra employee can have any concern that if they register a grievance, there can be no pressure not to register a grievance, nor can there be any detrimental effects on their employment if they seek to grieve in relation to this matter. Whilst I will tentatively accept the argument advanced by Telstra, I will not refrain from further hearing the matter. I will simply adjourn the matter for a period of one month so that I may examine the practical effect of Telstra's proposal.

PN272

The matter will be listed for report back on 10 October 2002 at 10.30. In making this decision, I make it clear that I express no view on the appropriateness or otherwise of the decision taken by Telstra to change its method of remuneration. I was not addressed on this matter, nor am I asked to express a view on it. My decision is designed to give emphasis to an existing grievance procedure and that emphasis can be seen as being a part of the conciliation process. On 10 October I would want to be addressed on the experience of the grievance mechanism and whether or not that experience has assisted in the settlement of the dispute.

PN273

In the event that a controversy still exists between the CPSU, the named persons and Telstra, I will hear submissions as to the further conduct of the matter, including whether or not conciliation is at an end on this alleged dispute or some other extant dispute. I add that I do not propose to convene a compulsory conference at this stage. Further submissions may be made on 10 October. I now adjourn until 10 October.

ADJOURNED UNTIL THURSDAY, 10 OCTOBER 2002 [12.40pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #TELSTRA1 FOLDER OF DOCUMENTS PN39