C2002/2797, Transcript of Proceedings [2002] AIRCTrans 4230 (25 October 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 VT352
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2002/2797
C2002/3813
C2002/3816
C2002/4653

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 Community and Public Sector
Union for making of an award not by consent

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

A. KING and OTHERS

and

REGENT PERSONNEL PTY LIMITED

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

MELBOURNE

10.28 AM, THURSDAY, 10 OCTOBER 2002

Continued from 13.9.02 in Sydney

THE FOLLOWING HEARING WAS CONDUCTED BY TELEPHONE
AND RECORDED IN MELBOURNE

PN317

THE COMMISSIONER: Is there any changes in appearances?

PN318

MR BRITT: No, Commissioner.

PN319

MR JONES: No, Commissioner.

PN320

THE COMMISSIONER: Thank you. Now, I have received some material from the parties. Mr Britt, in an earlier matter, has jolted my memory in relation to 36(3) but at this stage, Mr Britt, your client has foreshadowed 111AAA application although the discussion went a little further. And, indeed, I think, Mr Ogilvie, you said that you made one. Does anybody want to be heard on section 36(3)? Or first of all, do you want - do you make the application, Mr Britt?

PN321

MR BRITT: We do make the application, Commissioner. It is probably appropriate that we make that application in writing, given the compass of rule 21.

PN322

THE COMMISSIONER: Yes.

PN323

MR BRITT: And then it at least allows a document to go forward to the President, and then the President to make his determination when expected to - - -

PN324

THE COMMISSIONER: Well, I am content to hear you and grant you relief from the rules if you wish, and I can forward the transcript.

PN325

MR BRITT: Well, Commissioner, in that case, yes, we do, in fact, make an application under section 111AAA.

PN326

THE COMMISSIONER: Yes.

PN327

MR BRITT: And we do so at least for the purposes of today in relation to each and every one of the companies, the list of which was provided to you I think on the last occasion by Mr Gallagher.

PN328

THE COMMISSIONER: Yes.

PN329

MR BRITT: Now, whether at the end of the day that is pressed in relation to each and every one of those companies is a matter I don't have instructions on but we formally make the application in relation to each and every one of those companies that they wish to run a section 111AAA application that the Commission cease dealing, either in whole or in part, in relation to the current industrial disputes.

PN330

THE COMMISSIONER: Yes, and do you wish to be - make any submissions for consideration to the President under 36(3)?

PN331

MR BRITT: We do so on the basis that each and every one of those companies employs persons who are covered by state awards or state agreements.

PN332

THE COMMISSIONER: Yes.

PN333

MR BRITT: And in relation to those state awards and state agreements, they provide minimum terms and conditions of employment for labour hire employees engaged by each and every one of those companies.

PN334

THE COMMISSIONER: Thank you. Now, any other employers that wish to put any submissions on this point as well?

PN335

MR OGILVIE: Commissioner, on behalf of Julia Ross, the application was already made on the last occasion and we would seek relief from the rules - - -

PN336

THE COMMISSIONER: Yes.

PN337

MR OGILVIE: - - - in terms of filing a written application.

PN338

THE COMMISSIONER: Yes, leave is granted.

PN339

MR OGILVIE: The application is made in relation to employees at Julia Ross in Queensland, South Australia and Western Australia, Tasmania and New South Wales only, Commissioner. And we confirm that in each of those States there are state awards that ..... minimum terms and conditions of employment .....

PN340

THE COMMISSIONER: Yes. Mr Britt raises another matter. Are you instructed on the States that are affected by your application?

PN341

MR OGILVIE: Commissioner, each of these companies operate in different states - - -

PN342

THE COMMISSIONER: Yes.

PN343

MR OGILVIE: - - - which was one of the reasons why I think we are going to put it in writing, but we seek to make the application in relation to the State of Queensland where the Clerical Employees State Award applies, an award of the Queensland Commission; in South Australia where the Clerks (South Australia) Award is applicable - - -

PN344

THE COMMISSIONER: Yes.

PN345

MR OGILVIE: - - - in Western Australia in relation to the Clerks (Commercial, Social and Professional Services) Award Number 14 of 1972, on my instructions, is applicable; in Tasmania the Clerical and Administrative Employees (Private Sector) Award; and in relation to New South Wales, the Clerical and Administrative Employees in Temporary Employment Services (State) Award.

PN346

THE COMMISSIONER: Yes. So your application also involves a number of state jurisdictions as well.

PN347

MR OGILVIE: Yes, it does, Commissioner. Some of those companies operate across all those jurisdictions, and some of them only operate in specific states.

PN348

THE COMMISSIONER: Yes, I follow. Thank you very much. Now, of course I will have to refer the transcript to the President. Does anybody wish to then comment on the material that has been forwarded to me to date?

PN349

MR JONES: Commissioner, I have a couple of comments to make in relation to what would have been sent this morning.

PN350

THE COMMISSIONER: Yes.

PN351

MR JONES: Firstly, I note in relation to each of the employers represented here today that the application has not and, in our submission, cannot be made in respect of employees in Victoria, the Northern Territory and the ACT.

PN352

THE COMMISSIONER: Yes.

PN353

MR JONES: Secondly, we submit this, Commissioner, that those employees whose employment is bound by a federal instrument are also excluded from the compass of section 111AAA. We make that submission based on the provisions in respect of employees employed on AWAs, section 170BQ(4) of the Workplace Relations Act which clearly provides that an AWA excludes the operation of a State award in relation to the employment of that employee for the period of its operation. And we have been put on notice by Mr Ogilvie that he believes there are employees at his client Julia Ross who are employed pursuant to those instruments.

PN354

THE COMMISSIONER: Do you make a distinction, do you, between whether they are governed by a State award or covered by an AWA?

PN355

MR JONES: Well, can I say in relation to AWAs, Commissioner, there can be no ambiguity because section 170BQ(4) provides clearly that during its period of operation the AWA operates to the exclusion, to the exclusion of any State award or State agreement.

PN356

THE COMMISSIONER: Yes, I follow.

PN357

MR JONES: So clearly it cannot apply.

PN358

THE COMMISSIONER: Yes, I understand.

PN359

MR JONES: We submit in relation to employees covered by federal certified agreements that the same is the case. However, that is not necessarily clear from the face of the Act but one must have regard to the face of the instrument, the certified agreement, because the provisions are slightly different in respect of federal certified agreements where the federal certified agreement applies to the exclusion of the State award or agreement to the extent of any inconsistency. And on the information available to me, that certainly applies in relation to employees of Skilled.

PN360

THE COMMISSIONER: Yes.

PN361

MR JONES: We have no information in relation to employees of Julia Ross. So those are our submissions in relation to section 111AAA. As the CPSU has said in relation to this application in earlier proceedings, plainly it is possible that the employees of some of these companies may be covered, may be covered, by State awards or agreements. Plainly they may be covered. In relation to each particular employee, we don't concede that point but plainly in relation to some of them their employment may be covered.

PN362

THE COMMISSIONER: Right, well - - -

PN363

MR JONES: Those are our submissions.

PN364

THE COMMISSIONER: Thank you. The President has to consider those submissions in light of 36(3). In the event that the matter remains with me, are there any submissions that are sought - any additional submissions that are sought to be made on the written submissions filed?

PN365

MR JONES: The CPSU relies on the materials filed in accordance with your directions of 16 September.

PN366

THE COMMISSIONER: Yes. Thank you. Mr Britt.

PN367

MR BRITT: Commissioner, can I raise one matter that we considered this morning and it goes, first of all, to - and this I think is attachment 4 to my friend's written outline of contentions which is the draft letter.

PN368

THE COMMISSIONER: Yes.

PN369

MR BRITT: Commissioner, if I can first of all turn to the second sentence contained in the first paragraph. We say that what should - - -

PN370

THE COMMISSIONER: Which says "This award is based on the Telstra Award", is that the sentence?

PN371

MR BRITT: Yes.

PN372

THE COMMISSIONER: Yes.

PN373

MR BRITT: Thanks, Commissioner. What the Commission currently has before it is a log of claims.

PN374

THE COMMISSIONER: Yes.

PN375

MR BRITT: And the log of claims, with due respect to my friend, is not based on the Telstra Award. The Commission, we say, has to first of all determine - sorry, I withdraw that. The purpose of the survey, we say, is to determine whether employers and employees wish to be covered by a federal instrument, rather than the particular terms of that federal instrument. The Commission would note that in our written submissions we refer to a decision of the Full Bench in the Australian Workers Union of Employees (Queensland) and the Australian Maritime Officers Union.

PN376

THE COMMISSIONER: Yes.

PN377

MR BRITT: I don't know whether the Commission has a copy of that decision with the Commission today but if I can take the Commission to page 13 of the Internet copy of that decision, the Full Bench stated:

PN378

We do not think that it is possible to answer this question in the abstract -

PN379

and this is in discussion in relation to section 111AAA(2).

PN380

THE COMMISSIONER: Yes.

PN381

MR BRITT:

PN382

The answer will depend on the circumstances and the position of the parties in each case ...(reads)... in which the employees and employers wish to operate.

PN383

Now, what has been proposed in this survey goes beyond, we say, the issue of jurisdiction and, in fact, goes to what should be the terms and conditions of employment that apply to the call centre operators. We say the purpose of section 111AAA(2) and (3) is for the Commission to determine whether the employees and the employers wish to be covered by a federal instrument rather than a state instrument and, in fact, not what are the particular terms to be included in that federal instrument. And in that sense the survey is putting the cart in front of the horse.

PN384

So we would like to say that we think that in that first paragraph it should read:

PN385

The CPSU, The Community and Public Sector Union has made an application to the Australian Industrial Relations Commission which seeks to make -

PN386

and then we would insert the words -

PN387

a federal award which would bind your employer -

PN388

and then delete the rest because we say the rest goes to the substance of the application, not whether at the end of the day the parties wish to be covered by a federal instrument vis-à-vis a state instrument. Furthermore, we say that in the third paragraph - that is the paragraph:

PN389

When deciding whether to allow the union's application, the Commission must give primary consideration to the view of the employer and the view of the employees.

PN390

We say it is perhaps more accurate that the word "allow" be deleted and the word "here" be inserted. In essence, we say that really is the purpose of this survey to determine the views of the employees so that the Commission can exercise its discretion under section 111AAA. So we say that, in fact, by setting out what is aimed for in this particular survey or particular application distorts the survey process, and the real issue is federal instrument vis-à-vis state instrument, and not what are the particular terms of the state instrument.

PN391

Furthermore, we say that, in fact, in this particular case this particular letter seems to be aimed at Telstra labour hire employees. Now, we say - - -

PN392

THE COMMISSIONER: Mr Britt, I am sorry to interrupt you but I thought, apart from the issue in italics, it was agreed. Am I mistaken?

PN393

MR BRITT: Well, Commissioner, I think we have reconsidered our position this morning when we looked back - - -

PN394

THE COMMISSIONER: I see.

PN395

MR BRITT: We have gone back and looked at the actual log of claims which forms the foundation of the dispute.

PN396

THE COMMISSIONER: No, I understand. It is just that I want to put into context your criticism of the agreement; that is all.

PN397

MR BRITT: Yes, Commissioner, I presume we have really changed our position when we have gone back and looked at the log of claims this morning.

PN398

THE COMMISSIONER: Yes.

PN399

MR BRITT: Furthermore, we say that, in fact, the log of claims is not restricted to those persons employed by labour hire companies who are eligible to be members of the CPSU at Telstra. The log of claims served on those companies I represent doesn't have that restriction; that it only applies to those persons employed at Telstra.

PN400

THE COMMISSIONER: Yes, I follow.

PN401

MR BRITT: And in those circumstances, in essence, merely restricting this matter to Telstra employees is not giving the log, which is the current matter before the Commission, its full reading and we see no reason to restrict it in this particular fashion. And of course, Commissioner, that then has other matters we wish to raise in relation to the directions that have been made to date but perhaps I will deal with those matters at the particular instance.

PN402

In relation to the italicised paragraphs, we do, of course, rely upon our written contentions and, in particular, the decision in Kendell which we say is a significantly different case than this particular case because you had people being moved into a known federal award against a known state award. In this particular case, assuming the Commission finds a dispute, assuming the Commission doesn't exercise its jurisdiction under section 111AAA, no party at this bar table knows what will be the final award made by the Commission.

PN403

THE COMMISSIONER: You are not alone in that.

PN404

MR BRITT: Thank you, Commissioner.

PN405

THE COMMISSIONER: All right. Mr Ogilvie, do you wish to say anything about your discussions with the union and attachment B?

PN406

MR OGILVIE: Yes, Commissioner, just very briefly. There has been no written submissions filed on behalf of Julia Ross. The only comment that we would make is that is it understood that the words in italics approximately two thirds of the way down the page are the only words you disagree with?

PN407

THE COMMISSIONER: Yes.

PN408

MR OGILVIE: We would press that those words be included because they more accurately reflect the situation in terms of the industrial instrument that cover the employees.

PN409

THE COMMISSIONER: Yes.

PN410

MR OGILVIE: In that regard, we note that there was some comments made by Mr Jones in relation to the section 111AAA point that an AWA excludes the effect of any state award or state agreement. On that basis that the - it was said that the section 111AAA argument couldn't be pressed against the employees covered by state awards. The same applies to federal awards under section 170BQ(1). So we would say that it is not relevant and not whether there is an AWA in place for the determination of section 111AAA. But it is relevant I think to bring to the employer's attention that those instruments are in place because they will, firstly, exclude any federal award sought by the ....., it must exclude of course the effect of any state award that is already in place in relation to those employees.

PN411

THE COMMISSIONER: Thanks, Mr Ogilvie.

PN412

MR OGILVIE: And it is agreed that the effect of certified agreements are ambiguous to any of the terms of the actual agreement.

PN413

THE COMMISSIONER: Yes, thank you. Can we - before I turn to Mr Jones, Mr Britt, do you foreshadow you would want to make some submissions on the directions that currently exist? Could we hear those now?

PN414

MR BRITT: Yes, Commissioner. If I can turn to the Commission's directions. Commissioner, if I can turn to direction 5, and direction 5 is the one which is causing those parties I represent some concern. The first of the concerns relates to - it would only appear from the direction that only certain of the companies have to, in fact, provide the names and addresses of employees as this direction is currently drafted.

PN415

THE COMMISSIONER: Yes.

PN416

MR BRITT: That is those employees who are represented in the proceedings and who are present in the proceedings. The concern we have is there may well be other employers who are not represented or weren't represented on that particular occasion who may then wish to run a section 111AAA argument but they, themselves, are under no obligation to provide a list of names and addresses to the Commission. And in respect to that, we say that those companies that we represent shouldn't be treated differently than all of the companies in the proceedings.

PN417

THE COMMISSIONER: Yes.

PN418

MR BRITT: The second issue goes to the issue of providing the list of names and addresses. Commissioner, we haven't done that and we require more time to do that. The reason why we require more time to do that is that the members that - or the companies that we represent provide a considerable number of labour hire employees, not just to Telstra but to a range of different companies. And the nature of labour hire is such that you may have a person who spends a week at Telstra and then doesn't go back to Telstra for another job for a significant period of time, be it three months, four months or six months. And we are unsure from the directions, Commissioner, are you looking at a list of names at a particular date or a list of names over the last six months or a list of names over the last 12 months?

PN419

All of those types of requests and requirements present considerable difficulties to these companies because the nature of labour hire work is by and large casual. Secondly, the work can be intermittent, especially in relation to clerical and administrative work. Thirdly, our computer systems are not generated to be able to list off a list of names of people that have worked at Telstra over any particular period of time and would require individual checking of employees to determine whether, in fact, they have spent some time at Telstra. And we are unsure whether the Commission is looking at a person who has merely done one shift in the last 12 months, or a person who has a degree of greater commitment to the issue of Telstra. The fourth point is at the end of the day the log of claims, we say, is not restricted to Telstra. It covers all persons who are eligible to be members of the CPSU - - -

PN420

THE COMMISSIONER: Yes.

PN421

MR BRITT: - - - who are employed by members that we represent, and we say merely looking at providing employees to Telstra doesn't provide a broad survey of all the potential employees who could potentially be covered by this log of claims. And I suppose we are seeking some guidance from the Commission as to: are we looking at a particular time period, are we looking at a particular period of service, or are we looking at a particular day, or combinations thereof?

PN422

THE COMMISSIONER: Yes. All right, thank you. Mr Jones. I am sorry, was that all, Mr Britt?

PN423

MR BRITT: Another matter, Commissioner, in relation to that, we would say then, of course, that the names and addresses would remain confidential and would be provided to the Commission on that basis.

PN424

THE COMMISSIONER: Yes.

PN425

MR BRITT: And the parties would not have access to those names and addresses.

PN426

THE COMMISSIONER: Yes.

PN427

MR BRITT: That is our concern in relation to that order. Does the Commission want me to run through the other concerns?

PN428

THE COMMISSIONER: Yes, I would be pleased. Thank you.

PN429

MR BRITT: The next one, Commissioner, relates actually to the actual survey itself. We would say that in relation to that survey that the survey that goes out should, in fact, be numbered so as to ensure that people are not photocopying forms. Secondly, that the person who completes the survey must sign and date the survey. And, finally, that the survey be undertaken on paper which cannot readily be photocopied so the Commission ensures the integrity of the ballot system.

PN430

THE COMMISSIONER: Thank you.

PN431

MR BRITT: And, finally, Commissioner, in relation to the timeframe, we would require two weeks from today to be able to provide those names and addresses.

PN432

THE COMMISSIONER: Now, can I just ask you, Mr Britt, the written submissions say that it is not necessary because the CPSU is able to provide the views of employees. I take it that is not a statement that is intended to convey the view that the CPSU can do that on a global basis and save us the time and expense of a survey, is it?

PN433

MR BRITT: Well, they are able to present the evidence, in our submission, of the views of certain employees - - -

PN434

THE COMMISSIONER: Yes.

PN435

MR BRITT: - - - without the need for a survey. And we say - - -

PN436

THE COMMISSIONER: So, but you wouldn't accept that as authoritative of the views of employees, would you?

PN437

MR BRITT: No, we would accept it as the views of the CPSU - - -

PN438

THE COMMISSIONER: Yes.

PN439

MR BRITT: - - - as to the views of the employees who have contacted the CPSU.

PN440

THE COMMISSIONER: I see. So the submission in paragraph 2 must be read down to apply to, firstly, CPSU members and, secondly, those who have contacted the CPSU.

PN441

MR BRITT: Yes, Commissioner.

PN442

THE COMMISSIONER: Yes, I follow. Thank you. Now, Mr Jones.

[10.55am]

PN443

MR JONES: Thank you, Commissioner. Can I deal with the matters raised by Mr Britt in the first instance. It is unfortunate that some of these matters weren't raised in earlier discussions. I make no further of that. Of course, it is their right to reconsider their view. It makes it difficult, though, for us in certain circumstances where compromises are made by each party. Mr Britt, in relation to the first submissions he made and the second submissions in relation to your directions, raised the issue of the ambit of the dispute. True it is that the letter of demand was at large but the dispute finding sought by the CPSU is much narrower than that contained within the letter of demand.

PN444

The dispute finding sought by the CPSU is in relation to those employees of the labour hire employers providing such labour to Telstra where that work is performed at Telstra premises. At our earlier hearing, Commissioner, I tabled a copy of a dispute finding which reflected that submission and a copy of that dispute finding was provided to Mr Gallagher, who was representing the AIG, and Mr Ogilvie during that hearing. I don't believe the Commission marked that dispute finding at the time when it was tabled.

PN445

THE COMMISSIONER: No.

PN446

MR JONES: Does the Commission have a copy of that document?

PN447

THE COMMISSIONER: Just a moment.

PN448

MR JONES: I was hoping that the Commission's answer to that would be yes because I not sure that I have.

PN449

THE COMMISSIONER: Well, I haven't said either way yet.

PN450

MR JONES: Commissioner, if it becomes material, we can provide the copy to both yourself and my colleagues at the bar table as soon as the matter adjourns.

PN451

THE COMMISSIONER: Yes. Thank you. I - - -

PN452

MR JONES: We advised the Commission that that is the finding that we seek pursuant - - -

PN453

THE COMMISSIONER: I recall the discussion. Yes, go ahead, Mr Jones.

PN454

MR JONES: Secondly, the AIG and, I presume, Julia Ross, although I am not certain on this, say that the matter that is before the Commission is the dispute finding and that a decision on - the views of the employees by those employees in an abstract circumstances. We resist that submission and say nothing could be further from the truth.

PN455

We do that on two grounds; firstly, that before the Commission is an application which has been allocated a case number 3813, being an application for an award pursuant to section 111(1)(b) of the Act, and that award clearly seeks that the Commission make an award which, if I can use the shorthand, calls up the terms of the relevant Telstra awards but for the provisions contained within that award. And that application, as I said, Commissioner, has been allocated the AIRC case number 3813.

PN456

They are, in our submission, the matters before the Commission. We submit that it is simply unrealistic for the employees to express a view about a matter so important as their future terms and conditions of employment unless they have an understanding of what the position of - the various contentions of the two or more parties are. It is not just the CPSU which takes that view. That was clearly the view adopted by the Full Bench in the AWU case referred to by my friend earlier and the decision of the Commission in the Kendell Airlines case.

PN457

Unfortunately, I do not have the AWU case before me at the moment but I am familiar with the case and I am certain that the Full Bench in that case noted the merit of providing the various award applications to the employees so that they can make an informed view. I think the Full Bench said words to the effect that normally, if there was an application for an award before the Commission, then that should form part of the materials that are provided to employees so that they can make an informed view.

PN458

Even if that were not the decision of the Full Bench in the AWU matter, we say that it would conform to common sense. Employees cannot make an informed view in the abstract. Clearly, that was the position of the Commissioner in the Kendell Airlines case. For that reason, Commissioner, we have adopted the form of both the letter and the survey used by Commissioner Whelan in the Kendell Airlines case and made only those modifications that were either necessary to align it to the matters in this case and those which were agreed with the AIG and Julia Ross.

PN459

If I could summarise my position in relation to the survey and the letter, Commissioner, it is, firstly, that the matters before the Commission which you are being asked to stop hearing are the dispute finding in the award application, that in order for the employees to make a decision - in order for the Commission to be advised of the informed views of the employees, they must have that information before them, and that is consistent with the authority of the Commission in relation to section 111AAA.

PN460

Can I turn to the submissions by the AIG in relation to the directions issued by you on 16 September. Mr Britt, on behalf of his clients, raises some concerns that he believes that his - if I could use the shorthand expression, his clients have been singled out in relation to your directions. We say that that is not the case, that it is merely a reflection that it was Mr Britt's clients and now Julia Ross who have raised the issue of section 111AAA and, therefore, it is appropriate for you to make directions binding - or requiring certain actions of those employers.

PN461

We would have no objection, now that 111AAA application has been enlivened by Julia Ross, for the directions to be altered to include that employer. We believe that is appropriate. As to other employers, whose views we do not know, we submit that it is relevant that the provisions of section 111AAA deal with particular employees, the Commission being put on notice that a state award or agreement applies to particular employees.

PN462

So, in our submission, it is only when the employer makes that application or the Commission is made aware that the employer takes the view that the employees may be covered by a state award or agreement in relation to particular employees that directions such as this should issue. So we submit that it is inappropriate for a direction to be made. They should be made and restrained to those employers who take a particular point, as is their right to take a particular point.

PN463

Can I note in passing, some of these issues could have been dealt with by the parties had we been put on notice of them earlier and perhaps that is unfortunate but, again it is their right, it is the employer's right to raise these issues and we make no further comment about that. In relation to the requests in respect of the survey, that it be numbered, signed and dated and on non-copiable paper, we have no objection to that if the Commission deems appropriate to issue a survey and a letter in such a form.

PN464

We believe that it is appropriate if the Commission deems necessary to set a point in time when those employees are employees of the respondent companies working from a Telstra premises and don't cavil with point. However, we submit that it is not as difficult as Mr Britt seems to point out. The majority of labour hire employees who perform work for Telstra within the scope of the alleged dispute and the award application are employed on such a basis for quite a period of time. We are not talking about a day here or a day there, a week here and a week there.

PN465

They actually go through a six week training course before they can perform the functions and are therefore employed for quite some considerable period of time. So the majority of employees fall within that class. We do not submit that there aren't other more occasional employees but the majority of employees are there for a considerable period of time. Having made those submissions, we do not object to the employers being given some relief from the directions in the form sought and that they be given a further two weeks for those names and addresses to be submitted to the Commission so that survey may issue.

PN466

Can we make one further suggestion, with the greatest of respect, Commissioner, that in compiling that list and providing those names and addresses that the employer also list the state award or employment agreement which they say governs the employment of those employees. I make that submission mindful of the submissions that I made earlier in relation to AWAs and federal certified agreements. Those are my submissions, if the Commission pleases.

PN467

THE COMMISSIONER: Thank you. Mr Britt.

PN468

MR BRITT: Commissioner, if I can deal first of all with the Kendell Airlines point. As the Commission would be aware, the decision of Commissioner Whelan in the Kendell Airlines case concerned an application to rope Kendell Airlines into the Airline Operations - Clerical and Administrative - Award 1999. Now, we say that is a different circumstance than currently before this Commission. The terms and conditions of employment in the Airline Operations - Clerical and Administrative - Award 1999 were known terms and conditions of employment and, in that sense, it may well have been appropriate to include a number of paragraphs dealing with a comparison.

PN469

We say that that is different than this situation, whereby there is ..... being roped into. The terms of this award if in the event it is made may not reflect what is ..... out in the draft survey and draft letter provided by my friend and in that circumstance we say it is misleading to the employees to suggest that. And, in those circumstances, we say the Commission should not make or set out to make a comparison between a purported federal award and current state awards.

PN470

Secondly, my friend made reference to the application under section 111(1)(b) to make an award. However, section 111AAA(1) is restricted, we say, to the industrial dispute and the Commission must be satisfied in relation to that industrial dispute, which is broader than the proposed award but relates specifically to the log of claims. Now, I accept my friend's concession that, for the purposes of finding a dispute at this time, he is restricting the dispute to employees of labour hire companies employed at Telstra.

PN471

But notwithstanding that, the interest of the Commission, in our submission, is the views of the employees in respect to the industrial dispute, not in respect to a proposed award or proposed application to make an award. In those circumstances, we say when a consideration is given to the log of claims, even where the log of claims is merely restricted to employees employed at Telstra, that what is, in fact, before the Commission in the log of claims which forms the basis of the industrial dispute is not an award based on the Telstra award, which covers Telstra employees performing the same work as the purported employees.

PN472

Furthermore, we say the Commission should seek the views in relation to what is the industrial dispute, rather than the outcome of the industrial dispute in this particular case, and that is what my friend is seeking to do, with all due respect to him. In the final - - -

PN473

THE COMMISSIONER: It would be a bit risky, wouldn't it, Mr Britt, to ask employees if they want what is contained in the log?

PN474

MR BRITT: It may well be a bit risky to ask what is contained in the log but, Commissioner, we say that under section 111AAA, the ultimate question is whether you wish to be covered by a federal instrument or a state instrument.

PN475

THE COMMISSIONER: Yes.

PN476

MR BRITT: In our submission, that is what the Full Bench said in the maritime workers case. It is not, with respect to my friend - I have just had a quick read of that decision again - there isn't a reference to setting out the minimum terms and conditions or a comparison of terms and conditions. The Commission is interested, we say, in section 111AAA, whether people wish to remain in the state system or move to the federal system and we say doing a comparison between an award that doesn't exist and state awards that do exist will merely distort the survey.

PN477

In those circumstances, the Commission should not seek to set out, either in full or in part, the terms and conditions that apply under a federal award that doesn't exist and state awards that do exist and that you just will not get, we say, an accurate survey result by, in essence, promising certain matters which may or may not come to fruition, depending upon the outcome of these proceedings above and beyond the section 111AAA arguments.

PN478

THE COMMISSIONER: Yes, I follow.

PN479

MR BRITT: Commissioner, in relation to my friend's helpful submission in relation to the ballot papers or the survey results, we accept that and we thank my friend for that. As I understand, we are prepared to agree that the award - that each individual employee would have the relevant award attached to their name when the survey results go to the Commission and that would then have to be inserted in the Commission's covering letter to the survey. But we would only be seeking to have that particular award listed in the survey covering letter, not all awards, which we think would just be confusing for a person who worked in New South Wales and references were being made to awards elsewhere.

PN480

THE COMMISSIONER: Although the argument that was put by Mr Jones was that in the list of employees that you give to me, you attach to that list or you indicate on that list what instrument you say applies to each employee.

PN481

MR BRITT: We are happy to do that, Commissioner.

PN482

THE COMMISSIONER: Thank you. In relation to the other matter, could we identify persons who, say, for example, in the last six months who have worked on or have been available to work on the Telstra contract?

PN483

MR BRITT: The difficulty would be availability to work on, given the nature of Labour Hire is that if a job comes up, a person may or may not accept the job and that would primarily mean that almost everyone on our books would be available to work. My friend made reference to - - -

PN484

THE COMMISSIONER: They would have to have been through the training, wouldn't they, before they could then work on the Telstra contract?

PN485

MR BRITT: In relation to the training, also that, with respect to my friend, only covers some of the persons who perform work at Telstra. Particular training is given to those people who operate in call centres. Now, my friend made reference to six weeks. On my instruction, there will be some training up to six weeks, there will be some training only up to two weeks, depending upon what particular function a person performs in a call centre. However, Commissioner, that leaves out and for some of the companies we represent a significant number of persons who perform clerical and administrative temporary work, that is someone is sick on the day, a person comes in as a receptionist.

PN486

Someone is taking three weeks' holiday and they are a clerical assistant; someone comes in and does that work for three weeks. Another person is taking parental leave. A temporary employee comes in and performs that person's role whilst they are on parental leave, so not all of the employees and certainly in respect to some of the companies I represent, a significant number of those employees do not go through any call centre training or any formalised training.

PN487

THE COMMISSIONER: Do you have a view as to who should be surveyed?

PN488

MR BRITT: All employees should be surveyed. Our preference would be all employees who work, say, in a particular week, either some week in September or August. My friend thinks that we might have distorted the figures some other time, but we think that would be the easiest, but we would concede that there would be people outside that who would work and maybe some of the people who worked in that week never work again.

PN489

THE COMMISSIONER: Yes, I see.

PN490

MR BRITT: Commissioner, if you wanted to go beyond a week, maybe a four week period, all employees who worked in Telstra.

PN491

THE COMMISSIONER: And you would be content that that would then adequately cover the views of employees, even those who you might subsequently assign to Telstra work in the event that an award is made, those persons would be bound, wouldn't they?

PN492

MR BRITT: Commissioner, it depends. It is the nature of the business. There will be people working for one of the companies I represent at Telstra today who may never work there again. There would be people who start tomorrow and may do a three month assignment and may never work again, so we are always going to have to have a snapshot.

PN493

THE COMMISSIONER: Yes, and the objective is, I would imagine, to have the most representative snapshot we can.

PN494

MR BRITT: Yes, Commissioner, and perhaps a week is too narrow and you would look at maybe over a four-week period.

PN495

THE COMMISSIONER: Yes. Do you have any objection to that approach, Mr Jones?

PN496

MR JONES: Commissioner, without wanting to drag this process out any further than is absolutely necessary, I do have a view on that, but I also have a view on some of the new matters that have been raised by Mr Britt, if I may.

PN497

THE COMMISSIONER: Yes.

PN498

MR JONES: Mr Britt says that the distinguishing feature between the Kendell case and the matter before you is that he award terms and conditions were known and that in that matter, there was an application for a roping-in award. We submit that that is completely analogous with the matter before you know, that the Telstra award terms and conditions are known. It is an award which has been simplified pursuant to item 49 of the WROLA Act. The award terms are now known and certain and the application that we bring before you takes the form of a roping-in award. It takes that form.

PN499

There are some exceptions, as there are in many roping-in awards where there are distinguishing employment conditions that apply as opposed to the parent award. That it takes that form in a roping-in award is a distinct award, as is well known. Mr Britt makes some submissions in relation to the meaning of section 111AAA which we simply cannot agree with and we say that for these reasons, that the reference in section 111AAA(1) to an industrial dispute is a reference to the power that is being exercised by the Commission.

PN500

If that is not clear on the face of it, then we submit that the provisions of section 111(2) make that quite clear in that section 111(2) as the Commission well knows provides that a reference to an industrial dispute is a reference to any other matter before the Commission and if our construction isn't right, a most perverse circumstance would arise whereby an employer could not raise the issue of section 111AAA at any stage in a proceeding except for dispute finding claims.

PN501

They couldn't make this application, they couldn't make a section 111AAA application if we were dealing with an award application on Mr Britt's reading, so clearly that is a perverse reading. That is not what section 111AAA says. Section 111AAA says that the application may be made in our reading when any matter is before the Commission that falls within the industrial disputes jurisdiction of the Commission.

PN502

We say no more than that. We make those submissions in support of our application, that the employer should have before them all the information about what is really before the Commission and what the employer seeks to stop being heard by the Commission. In relation to the time lines, if I could address you on that, Commissioner, we think there is a real danger in distorting the views of employees who a small snapshot is taken and it is our view that the preferable approach would be to pick a time or a date; perhaps that date is today, perhaps that date is a week from today and so that any employee who has worked within the ambit of the dispute as we describe it for a period of four weeks or more, that employee should have their name provided to the Commission and the merits of that submission we say means that it makes the task far less onerous for the employer.

PN503

It narrows the group of employees whose views the Commission is going to be appraised of because if they are as Mr Britt says, a genuine temp who works a day here or a day there, clearly they are not going to fall within that class, so if on a certain date they have worked with Telstra for four weeks or more, then we say the Commission should be appraised of their views. Those are our submissions, Commissioner.

PN504

THE COMMISSIONER: Thanks, Mr Jones. What do you say about the last point, Mr Britt? Are you content that we pick a date and say somebody has worked for four weeks or more on that date?

PN505

MR BRITT: Commissioner, in relation to that matter, I am instructed we don't agree with that. We don't agree with it on the basis that in essence that will only then provide the views of what I could call the permanent casuals engaged by one of the companies I represent and that would unduly narrow we say the views of employees. We are happy to provide a snapshot, that it be a snapshot over a four-week period, rather than someone had to be there for four weeks.

PN506

Secondly, we are a bit unsure what is meant by they were there for four weeks, whether that is four weeks performing X number of hours or one day a week for four weeks, but we think that would just distort any survey result and has the real risk, we say, of not picking up the views of those persons who perform, in particular, work outside the call centre area and we concede work in the call centre area is more consistent than the work outside the call centre area, so we think that is unduly narrow.

PN507

Going back, Commissioner, in relation to the issue of Kendell Airlines, this is not a roping-in award. If the Commission ultimately finds an industrial dispute, the parties then have to put submissions in relation to the first award principles and the ultimate award may in fact look something totally and utterly different than the Telstra terms and conditions of employment, so it is a lot more complicated than a mere roping-in award into the Telstra award.

PN508

THE COMMISSIONER: Now, Mr Ogilvie, I haven't forgotten you. Is there anything you wish to add?

PN509

MR OGILVIE: No, Commissioner, other than to say that we agree with the submissions of Mr Britt in that the snapshot should reflect both people who work on a regular basis and an irregular basis at Telstra premises, because it is each of those people that will be covered by any proposed award or dispute finding.

PN510

THE COMMISSIONER: Yes, I follow. All right, thank you. What I will do now is I will obtain a copy of the transcript and give it to the President so that he can consider the matter and then in the event that he returns the matter to me, I will publish further amended directions to deal with the issues that are currently in contention and I will advise the parties of the survey form and the accompanying letter that would be forwarded in the event the matter returns to me. Is there any question about that?

PN511

MR BRITT: No, Commissioner.

PN512

THE COMMISSIONER: Thank you for your submissions. I will simply adjourn the matter currently in accordance with the directions, but understanding that they will be amended in light of the submissions that have been made. Thank you. The matter is adjourned.

ADJOURNED INDEFINITELY [11.25am]