C2002/2797, Transcript of Proceedings [2002] AIRCTrans 3854 (27 September 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2002/2797
C2002/3813
C2002/3816

CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION

and

JULIA ROSS PTY LIMITED and OTHERS

Notification pursuant to section 99 of the Act
of a dispute re log of claims - wages and working conditions in the Telecommunications industry

LABOUR HIRE (TELSTRA) AWARD 2002

Application pursuant to section 111(1)(b) of the Act
by the CPSU, The Community and Public Sector Union
for making of an award not by consent

CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION

and

ADECCO PROJECTS PTY LIMITED and OTHERS

Notification pursuant to section 99 of the Act
of a dispute re log of claims - wages and conditions

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

SYDNEY

FRIDAY, 13 SEPTEMBER 2002

EXTRACT OF TRANSCRIPT OF PROCEEDINGS [2.32pm]

PN1

There have been conferences held to discuss programming but agreement has not been able to be reached. So, on that basis, Mr Jones, how do you say the matter should be handled?

PN2

MR JONES: Can I deal with CPSU1 first, the dispute which we allege is evidenced by exhibit CPSU1. We seek to notify that matter and seek leave to do that here before you today if the Commission is minded to accept that as a notification of the dispute. The alleged dispute so notified in our submission should be allocated a separate matter number for the sake of convenience.

PN3

It is our submission that when, at your convenience, you call that matter on, that the individual parties listed in CPSU1 should be notified by the Commission of the time and date of hearing of that dispute.

PN4

Can I deal with each of the matters perhaps in two separate groups? We would also foreshadow that that matter, if given a separate case number, should be joined with the other three matters or at least heard concurrently. Can I now deal with the matters in two groups? The necessity to deal with this is the fact that the employer has put the issue of section 111AAA in question.

PN5

In respect of the disputes between CPSU and the companies and CPSU1 and the companies, in so far as they apply to those parts of the enterprises in Victoria and the Territories, we submit as follows, that by 16 September the AIG advise the CPSU if it seeks to put in issue the question of authorisation and what it seeks from the CPSU in relation to authorisation, that by 18 September the CPSU shall respond, that by 20 September the AIG is to advise the CPSU if they wish to cross-examine on the material so provided, that on 16 October the AIG file and serve outlines of witness evidence and contention, that on 23 October matter number 3886 be listed for hearing together with the joined matters 2797 and 3816 to hear argument about joinder, that on 1 November the CPSU is to file and response to the materials that are filed and served by the AIG and that the matter be set down for hearing at the Commission's convenience in mid-November.

PN6

In respect of the issue of section 111AAA, can we advise the Commission as follows, that we do not cavil with the submission of the employer that State awards or agreements may apply to work performed by clerical administrative and call centre employees, these are the employees that are subject of the application, that we do not cavil with their contention that State awards or agreements may apply to this work? On the basis of this admission by the Union, we submit it is merely a matter for the Commission to determine the question of public interest.

PN7

In our submission, and based on the authorities of earlier decisions which have determined or heard this matter, that the views of the employees should be given some primacy. Accordingly, we suggest the following timetable, that the parties are given until the end of September to confer on the form of a survey which the Commission would issue to employees in the States of South Australia, Western Australia, Tasmania, New South Wales and Queensland, of those labour hire companies providing labour hire staff to Telstra whom they allege are covered by State awards or agreements, and that on 1 October the employer respondents should provide to the Commission a list of employees and their addresses who fall within that class, that is, employees of labour hire firms where those employees are provided to perform work Telstra, from Telstra premises in the States of Western Australia, South Australia, Tasmania, New South Wales and Queensland.

PN8

It is our respectful submission that on or around 8 October might be a convenient time for the Commission to determine the form of any questionnaire or survey that may assist the Commission in forming the view of employees and the form that has been subject of consultation between the employer respondents and the Union should be influential in that. In our submission, we would be asking the Commission to issue such a survey or questionnaire to employees in early October and that the parties be provided with a response to that survey or questionnaire by mid-November.

PN9

If there are further submissions or argument to be made on the outcomes of that questionnaire and process, then the parties would have the date set down by the Commission at the Commission's convenience in late November to put whatever submissions they require to be put in relation to those issues. That's the CPSUs respectful submission on how this matter can be best timetabled and brought forward. If the Commission pleases.

PN10

THE COMMISSIONER: Thanks, Mr Jones. Mr Benfell?

PN11

MR BENFELL: Thank you, Commissioner. We don't want to make submissions in relation to the timetabling, it's a matter for the other parties but I need to advise that the CEPU and the CPSU are engaged on ongoing discussions to settle any differences that may arise between us in this matter but if we are unable to reach agreement, the CEPU reserves all its rights under the act, including sections 111AAA and 111(1)(g). Thank you.

PN12

THE COMMISSIONER: Thanks. Yes, Mr Gallagher?

PN13

MR GALLAGHER: I'm must wondering if we might kind of tick these off as we go along, Mr Commissioner, so that I make sure that we've understood the position because I must say, I didn't quite understand what Mr Jones was putting as to the processing of the 111AAA matter, but put that aside for the time being.

PN14

Firstly, as to 2797 and 3816 of 2002, we understand the proposal is that we would request relevant materials from the CPSU by 16 September. That request would probably not need as we understand it any summons to be requested to be issued. On 18 September, and I assuming here that this is by the close of business on each day, the CPSU would provide those relevant materials sought.

PN15

On 20 September, we would advise the CPSU and I would assume the Commission as to the extent to which any persons were required for cross-examination. On 16 October, we would put on our contentions as to those two disputes. This is in the context of opposition to a dispute being found in those matters. On 23 October, 3886 which is not yet listed would be listed and subject to what might be said by parties to that matter who are not here, 3886 would become joined with 2797 and 3816.

PN16

On 1 November, the union would file and serve their contentions in relation to opposition to or our opposition to a dispute being found. On 5 November, 2797, 3816 and 3886 would be set down for hearing - - -

PN17

THE COMMISSIONER: No submission was put on that. Mr Jones said mid-November. He didn't specify a date.

PN18

MR GALLAGHER: Well, that's why I wanted to tick things off.

PN19

THE COMMISSIONER: No, he didn't specify a date. He said mid-November.

PN20

MR GALLAGHER: So 1 November, the union would file contentions. We're correct up to there and then 2797, 3816 and 3886 would be set down for hearing mid-November going to whether or not a dispute should be found in those matters insofar as Victoria, the Northern Territory and the Australian Capital Territory are concerned. Now, do I have that much correct up to this time?

PN21

MR JONES: Yes, that is correct, with the exception that we also submit that CPSU1 should be dealt with in accordance with that time line as well.

PN22

MR GALLAGHER: Right. CPSU1 comprises a document of - I haven't counted the pages but quite a number of pages and there would probably be hundreds of names on CPSU1. CPSU1 was raised for the first time here. There has been, as we understand it, no formal notification of dispute in relation to CPSU1. I think that much is required by the rules. I might stand corrected there. In any event, CPSU1 was, as I say, raised for the first time today without any time for us to consider the ramifications of that at all and in our respectful submission, we do need some appropriate time to consider the content of CPSU1 before anything is programmed in relation to it at all.

PN23

We do note - I'm not quite sure of the page because the pages aren't numbered at all, but one of the labour hire employees noted is Westaff. Westaff is not part of 2797 and 3816. It is part of 3886 and at this stage I have no instructions for Westaff and I obviously don't speak for them, but it would be at least inappropriate in our submission for any programming to occur at all in relation to CPSU1 until we've had a chance to consider it, the document having been given to us for the first time today and until the document is seen by those persons covered by 3886 who have had no notice whatsoever of the document, for there to be some programming in relation to at least those people, let alone us having regard to what we've said about the receipt of the material, would in our respectful submission be unfair.

PN24

THE COMMISSIONER: Mr Gallagher, just for your information, Mr Jones has asked me to accept this as a notification and to have a file made up. It would be my intention to grant relief from the rules, accept this a notification, have a file made up. The reading of the documents is, on its face, and I don't go into it any further than that, it says:

PN25

By signing this letter we wish to advise that we adopt the demands made on our employers on behalf of the CPSU.

PN26

So I will attach to that a copy of the log of claims that has also been filed. So the file will be this document and the log of claims.

PN27

MR GALLAGHER: This document being the CPSU - - -

PN28

THE COMMISSIONER: CPSU one, yes.

PN29

MR GALLAGHER: I hear what you say about that, thank you, Commissioner. Again taking this step by step and ticking things off as we go through. My understanding of what Mr Jones said in relation to CPSU1, was that the same timetable should apply to it as applies to 2797 and 3816 insofar as what would be set down for hearing at some time yet undetermined in mid-November. That is to say it relates to the dispute finding in relation to Victoria, the Australian Capital Territory and the Northern Territory.

PN30

Now then we come to 111AAA and I must say the Commission's notes might be much better than mine were or are in relation to 111AAA, but I must say my friend lost me to a certain extent in relation to what was proposed concerning 111AAA. Now I wonder if I might understand from the Commission, again ticking these off as we go through, what is proposed.

PN31

THE COMMISSIONER: In fact what I understood it to be that I directed parties to confer - on the first point that the CPSU take the view that there may be state instruments covering the employment of persons sought to be covered.

PN32

MR GALLAGHER: Yes, we understood them to say that.

PN33

THE COMMISSIONER: That the Commission should direct the parties to confer and seek to agree upon a form of survey that might go to the employees to ascertain their view on whether or not Federal regulations are appropriate or not appropriate.

PN34

MR GALLAGHER: Can I stop you there, Commissioner. We understood that to be the case.

PN35

THE COMMISSIONER: By the end of September.

PN36

MR GALLAGHER: Sorry.

PN37

THE COMMISSIONER: And should confer by the end of September.

PN38

MR GALLAGHER: By the end of September. Can I indicate that we obviously take some guidance, as would the Commission, and presumably as with Mr Jones, the CPSU, to the form of the survey which is referred to in your decision of 31 August in 2001, in print PR908060, that is the AAPT matter. We will confer with the CPSU in relation to that by the 30 September. What then followed in the 111AAA exercise - - -

PN39

THE COMMISSIONER: As I understood the submission, by 1 October, the employer\respondents would provide a list of employees with their names and addresses. And by 8 October, the Commission would determine the form of the questionnaire to be sent out and responses sought by mid-November.

PN40

MR GALLAGHER: What would happen by mid-November?

PN41

THE COMMISSIONER: Responses to - a return date by mid-November of the survey. Is that a correct understanding, Mr Jones?

PN42

MR JONES: Yes.

PN43

THE COMMISSIONER: That's correct, yes.

PN44

MR GALLAGHER: We are not sure whether - I need to take some instructions about this and to be quite frank with you, Mr Commissioner, I am not sure that I can get those instructions here and now.

PN45

THE COMMISSIONER: Yes.

PN46

MR GALLAGHER: That goes to the provision of the names and addresses of our employees to the union.

PN47

THE COMMISSIONER: No, to the Commission.

PN48

MR GALLAGHER: To the Commission.

PN49

THE COMMISSIONER: To the Commission, yes. Not to the union to the Commission.

PN50

MR GALLAGHER: Beg your pardon.

PN51

THE COMMISSIONER: Because the Commission would be forwarding out the survey, yes.

PN52

MR GALLAGHER: Thank you. So we get up to 15 November then and the responses, let's assume, have been received and there is nothing set down after that.

PN53

THE COMMISSIONER: There is no proposal that I heard to set it down after that.

PN54

MR JONES: Commissioner, the reason that I did not take the liberty because the matter is ultimately in your hands, how you choose to inform yourself on the public interest in respect of employees. So I leave it in your hands.

PN55

MR GALLAGHER: So we get up to 15 November, let's assume the responses have been received in relation to 111AAA issues and it's then a matter for the Commission as to what happens for programming after that.

PN56

THE COMMISSIONER: Yes.

PN57

MR GALLAGHER: Now, I do want to clarify this to make sure that my understanding here is correct because it was a matter that caused some consternation when the parties were in private conference and I don't go to the issues that were discussed in private conference.

PN58

THE COMMISSIONER: Yes.

PN59

MR GALLAGHER: But I now understand that the 111AAA issues going to 2797, 3816 and might I say CPSU1 are now taken up with the procedures that I just most lately referred to that take us through until mid-November, that is to say 111AAA does not form part of the exercise which will be addressed at some stage in mid-November in relation to 2797, 3816, perhaps 3886 and perhaps whatever file number is eventually given to CPSU1.

PN60

Now, is my understanding about that correct? I am going to tick that off.

PN61

MR JONES: Again, Commissioner, it would be very bold of me to suggest how you should exercise your statutory discretion in determining the public interest. Ultimately it's a matter for the Commission to determine.

PN62

THE COMMISSIONER: You're not suggesting two inquiries, one for the 2797, 3816 and 3886 and another for CPSU1?

PN63

MR JONES: No, it would be my submission that it would be in the public interest to conduct one inquiry.

PN64

THE COMMISSIONER: Yes, thank you.

PN65

MR GALLAGHER: I am glad I raised the matter then. I did phrase things in a fairly particular way as I was going through because what my friend appears now to be saying is that, at least in relation to CPSU1, the 111AAA argument is an argument that would be addressed in the context of the timetable proposed for the dispute finding exercise concerning 2797, 3816, 3886, to the extent that that is there and CPSU1.

PN66

THE COMMISSIONER: All the roads tend to come towards mid-November.

PN67

MR GALLAGHER: All the roads tend to come towards mid-November. Now, again ticking things off as we go through. 2797, 3816 and 3886 are all directed in terms of the timetable the dispute finding exercise, they are not directed to section 111AAA. We have no difficulty with the timetable that being the case. Then we introduce, however, a matter that we introduce, the CPSU introduces a matter, which means that 111AAA is there in relation to what is now termed CPSU1. That leads us back to the timetable which was originally proposed by the CPSU and which timetable I understood was varied by agreement in terms of timetabling.

PN68

That agreement, let me go back a step, that proposal by the CPSU and that proposal overlaid, as it were, by the agreement which I understood that we made took us through until at least 9 December before the CPSU would even put on materials. Can I go to the document, the draft directions that were put forward and I don't know if that's been marked in any way.

PN69

THE COMMISSIONER: Your draft directions or the CPSUs?

PN70

MR GALLAGHER: No, I beg your pardon. My draft directions have been noted. The CPSU directions which were the subject of the letter of 2 September - - -

PN71

THE COMMISSIONER: No, they haven't been marked but I have them.

PN72

MR GALLAGHER: Could they be marked at least for identification so that we can refer to them in some way.

PN73

THE COMMISSIONER: The letter of 2 September which contain an attachment of draft directions I'll mark as CPSU 2.

EXHIBIT #CPSU2 CPSU LETTER WITH ATTACHMENT DRAFT DIRECTIONS DATED 02/09/2002

PN74

MR GALLAGHER: Going to those directions that were proposed, CPSU is directed to file and serve materials in support of its application for an award by four weeks from directions. The directions were to be made today and the date that I suggested was 14 October which I think, and I might stand corrected as to this, is the Monday four weeks hence, that can be checked. Secondly, the employer respondents are directed to file and serve materials in response by four weeks from CPSU filing and serving. On the suggestion of the CPSU that would take us through until 14 November.

PN75

The proposal that I made which I understood was agreed to by Mr Jones, in fact I'm fairly sure it was agreed to, took us through until 25 November. In fact he wrote down on his document the relevant dates without any demur. Paragraph 3, CPSU is directed to file and serve its materials in reply by two weeks from employer material. Now, on the timetable that I understood had been agreed that takes us through until 9 December.

PN76

The last paragraph was to the effect that the matter would be relisted as advised by the Commission for a report back and further directions. The first timetable proposed by the CPSU was obviously seen by them to be fair. We didn't think it was quite fair and we sought some amelioration. We understood that amelioration was granted. So that leads us to this submission that the timetable which would be set down for any 111AAA proceedings, in any sense this would kind of pick up on the survey suggestions made, would be in accordance with either the draft directions as sought by the CPSU or the draft directions as agreed, or as I thought they had been agreed between the CPSU and myself.

PN77

Those directions seemed to be fair as to the suggestion made by the CPSU in the document. They might now say that either the position that I thought was agreed wasn't agreed or that in any event that is unfair for some reason. But in our respectful submission the directions which should be made as to the 111AAA exercise, in fact I think these should be reduced to writing by the parties concerned with suitable intimations from the Commission but that's a matter for the Commission of course, those directions should be in accordance with CPSU2 as amended by the agreement otherwise we have ourselves in a position, in my respectful submission, which is unfair to the parties in terms of the timetable proposed.

PN78

Now, again as to 111AAA my friend will have something to say about his client, Julia Ross Recruitment Pty Limited, I obviously don't speak for them, and it would be, in our respectful submission, most unfair for the timetable proposed which takes us through until mid-November, the one with the various September and October steps to also apply to any 111AAA arguments that the persons in 3886/2002 who aren't here might care to run.

PN79

Putting that aside for the time being our submission is that the timetable originally proposed in CPSU2 should be now decided by the Commission to be appropriate except to the extent that there was an agreed amelioration of that timetable at least, as I say, I thought there was an agreed amelioration of it. I don't think I can say any more.

PN80

THE COMMISSIONER: Thank you. Yes, Mr Ogilvie?

PN81

MR OGILVIE: Thank you, Commissioner. I'm not sure how I can assist the Commission any further. We would support the submissions made by my learned friend on behalf of the AIG, representing the employers. The only comment that I would make, I suppose, particularly in relation to CPSU1, given this is the first time that I've seen it, I'm unable - I haven't got any instructions from my client as to any response to it, so I'm unable to provide any input into setting down the matter to be heard. If the Commission please.

PN82

THE COMMISSIONER: Well, there is only a couple of observations I'll make at this stage. The first is this. I don't see any need for the CPSU to file and serve additional material, other than what they have already filed and served, and I'll have a file made up of CPSU1, with the log of claims. Those files will be available for inspections at the Registry.

PN83

What is in those files should be what they rely upon as evidence for the finding of dispute, so they don't need really to file anything more in relation to that. The 16, 18 and 20 of September dates for the employers to ask the CPSU about material in relation to authorisation, and the material to be provided by 18th, and then for the employer to advise whether or not there is going to be any cross-examination of Ms Caird, that should occur, so that we know by the 20th whether or not Ms Caird will be required for cross-examination.

PN84

The only other direction I would make, at this stage, is that, what seemed to be agreed is that the parties should confer about the nature of any survey, and seek to reach agreement by the end of September. As for the other matters, I'll consider the timing from the submissions put by the parties and issue directions early next week.

PN85

Yes, Mr Ogilvie?

PN86

MR OGILVIE: Could I just ask that the directions you've made today be put in writing, just for the sake of clarity?

PN87

THE COMMISSIONER: Yes, I'll be doing that as well, but I think before we leave here because of the tight time frame next week, whether you need Ms Caird, that ought to be done, so on the 16th, any request for material in relation to authorisation should go to the union, the union provide that material by the 18th, the employer advise both the union and the Commission as to whether or not Ms Caird is needed for cross-examination.

PN88

If there are other persons, who are subsequently available, we can deal with that in the ordinary course, but if it is Ms Caird, we will need to deal with that expeditiously.

PN89

Yes, Mr Jones?

PN90

MR JONES: Sorry, I don't mean to interrupt you, Commissioner, it is not on the issue of CPSU1. During private I advised the Commission of some concerns of the employees.

PN91

THE COMMISSIONER: Yes. Well, in relation to that I simply say this that I know there would be no demur from the employers, but employees who have sought to place their name before the Commission can, of course, expect that there would be no detriment to their employment, or criticism of their action in placing their name before the Commission.

PN92

It is covered by the legislative scheme and, indeed, I'm sure Mr Ogilvie and Mr Gallagher, to the extent necessary, you would be advising your clients to that effect.

PN93

MR GALLAGHER: Can I say, on the record, we acknowledge that there is a legislative scheme in place in relation to the sort of concern raised by my friend from the CPSU, but I just wanted to make it clear that, at least, speaking for my clients, we will obviously need to get instructions from the employers concerned about the matters contained in CPSU1.

PN94

THE COMMISSIONER: Yes, I understand that. Yes, Mr Ogilvie?

PN95

MR OGILVIE: We acknowledge that, Commissioner.

PN96

THE COMMISSIONER: I understand that. Those persons who have now expressed a view, but anybody can come to this Commission knowing that there is absolutely no prejudice to them by putting their hand up.

PN97

All right, well, thank you for your efforts. I'll ask for the transcript to be produced no later than mid-next week so that you can all have a copy of the transcript, and I will seek to get the directions out around about that time. It may be that they don't have an original signature on it, but you can be content that I have seen it and authorised it.

PN98

MR GALLAGHER: Can I ask this, just to get the availability of people in place? The Commission will issue those directions on or about a certain day next week. Now, let us assume that, in the best of all possible worlds, no questions arise as to those directions, one way or the other?

PN99

THE COMMISSIONER: Yes.

PN100

MR GALLAGHER: That's fine. If a question arises - - -

PN101

THE COMMISSIONER: Liberty to apply will be granted.

PN102

MR GALLAGHER: And we will have access - - -

PN103

THE COMMISSIONER: Access to make a submission.

PN104

MR GALLAGHER: Yes. If the Commission pleases.

PN105

THE COMMISSIONER: Thank you for your assistance. The matter is adjourned sine die.

END OF EXTRACT [3.12pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CPSU2 CPSU LETTER WITH ATTACHMENT DRAFT DIRECTIONS DATED 02/09/2002 PN74