C2002/4394, Transcript of Proceedings [2002] AIRCTrans 4554 (15 November 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 VT10035
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2002/4394

THE COMMUNITY AND PUBLIC SECTOR UNION
and OTHERS

and

TELSTRA CORPORATION

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

MELBOURNE

10.08 AM, THURSDAY, 31 OCTOBER 2002

Continued from 30.10.02

<JOHN ALAN JAMIESON, ON FORMER OATH [10.08am]

<CROSS-EXAMINATION BY MR BOURKE

PN1281

THE COMMISSIONER: Now, Mr Jamieson. You are still on oath, Mr Jamieson?---Thank you.

PN1282

Yes, Mr Bourke.

PN1283

MR BOURKE: Thank you, sir.

PN1284

Mr Jamieson, I want to now move to an issue you raise at paragraph 89 of your statement concerning Shane Aitken?---Yes.

PN1285

Where you complain about the number of meetings he was required to attend, do you remember that?---Well, I am not complaining, I am stating the facts.

PN1286

I see. Let us just have a look at the facts. Could you please go to - sorry, just before that. Your version, as you understood you were told, was that there was some sense of compulsion in him attending for informal meetings, correct? That is what you communicated in your statement?---Yes.

PN1287

Let us just have a look at that. Could you go, please, to tab 47 of TELSTRA 5, that big, thick folder, do you have that there?---Thank you.

PN1288

Now, you have his request at tab 47, do you see that?---Yes.

PN1289

Then there is the standard letter at 48, right?---Well, that is - I don't know if that is a standard letter, but anyway.

PN1290

Can you go to 49? You see that these are minutes of the meetings, do you understand?---Yes.

**** JOHN ALAN JAMIESON XXN MR BOURKE

PN1291

You see there meeting number 1, 26 - see Summary of Discussion, see that heading?---Yes.

PN1292

And there is meeting 1, conducted 26 September 2002?---Yes.

PN1293

And you see that WR, Will Russell, after explaining the process, asked for his issues and non-specific outline?---Yes.

PN1294

And then it was discussed at various points of the Q&As with Mr Aitken identifying specific issues?---Yes.

PN1295

Could you understand if no specific issues were articulated that later an issue came up for Mr Aitken there might be a purpose in having another meeting? Could you accept that as a proper purpose for meeting again?---Yes, yes.

PN1296

And then can you go to meeting number 2, about half-way down, it has got:

PN1297

SA outlined that rostering was the major contentious issue along with less pay for the actual work performed.

PN1298

?---Yes.

PN1299

Do you see that? So the second meeting he has in fact now got two issues he wants to raise?---Fine, right.

PN1300

Could you understand that it might be highly probable that in fact he initiated that meeting, he has now thought of two issues he wants to discuss?---I don't know who initiated them.

**** JOHN ALAN JAMIESON XXN MR BOURKE

PN1301

No, but just thinking about it. I mean, you have got all your information second-hand, but thinking about it. Is it possible - - -?---I can't comment, I don't know.

PN1302

All right, can't comment, okay?---Sorry.

PN1303

Okay. And you see, then, he raised a query about whether the process would have an impact on his career or position prospects? Just below that?---Yes, yes.

PN1304

And Mr Pearcy explained that it would not?---Yes.

PN1305

Do you see that? And he thanked him for the clarification?---Yes.

PN1306

And then going to the end you see Mr Pearcy closed the meeting so that Mr Aitken could consider and seek advice on issues raised - or maybe he could seek advice?---Well, I can read that line. I don't know who was going to seek advice on the issues raised. I wouldn't have thought that would be Telstra.

PN1307

And it was accepted that there would be a break?---Yes.

PN1308

And then they have a further meeting later?---Yes.

PN1309

And you don't make any complaint if someone has got a query and the team leader needs to seek advice?---I haven't made a complaint.

PN1310

No, I am just checking, okay?---Yes.

PN1311

And there is then that third meeting. And then can you turn over the page. You see it concludes with, "Mr Aitken asked to consider options over the weekend"? Do you see that?---Where are we at, I am sorry?

**** JOHN ALAN JAMIESON XXN MR BOURKE

PN1312

The top of page 2, that document?---Yes.

PN1313

"SA asked to consider options over the weekend"?---What page, I am sorry?

PN1314

You have got tab 49 still?---Yes, I am on the right one.

PN1315

And have you got the second page, the very top, it has got "Change the payment of the benefit"?---Oh, right.

PN1316

And then directly underneath that, "Mr Aitken", it is indicated, "asked to consider options over the weekend"?---Yes.

PN1317

And then there is a fourth meeting on the 30th, do you see that?---Yes, yes.

PN1318

And it is noted that - there is an issue about preferences and it comes out that Mr Aitken had not been entering his preferences. Do you see that? The top three lines of the fourth meeting?---Right.

PN1319

Right? And then you see that Mr Aitken made a statement about withdrawing his fair treatment request?---Yes.

PN1320

And set out there. And then can you turn over the page to tab 50?---Yes.

PN1321

You see that Mr Aitken forward a note to Mr Pearcy outlining some concerns about the process and stating at the last dot point:

PN1322

I wish it to be noted that I fully support and welcome an equitable change that affects remuneration for effort and that this change is long past due.

**** JOHN ALAN JAMIESON XXN MR BOURKE

PN1323

Do you see that?---Yes.

PN1324

Also:

PN1325

I will continue to support it and effect my own participation in the preferential base rostering in the future so as to limit the liability to myself in reduced incomes.

PN1326

?---Yes.

PN1327

Do you understand that comment to be a reference to the fact that he is now going to put his preferences in when he hadn't been in the past? Is that how you would understand that?---Well, we reckon he will do what he feels he wants to do, yes.

[10.15am]

PN1328

Now, you raise from paragraph 37 of your statement a number of allegations based on information you received concerning Ms Loresio?---Lolesio, yes.

PN1329

Lolesio?---Yes.

PN1330

And suggesting that she was refusing to accept fair treatment requests at Footscray?---Yes.

PN1331

Okay?---Yes.

PN1332

I just want to - let us just look at the facts on that document in relation to that issue. Do you know that she was, in fact, away for a lot of September; did you know that?---No.

**** JOHN ALAN JAMIESON XXN MR BOURKE

PN1333

I will now hand you a bundle of documents concerning Ms Lolesio.

PN1334

THE COMMISSIONER: Do you want me to mark these, Mr Bourke?

PN1335

MR BOURKE: Yes, thank you, sir.

EXHIBIT #TELSTRA6 SERIES OF E-MAILS BEGINNING WITH ONE DATED 30/10/2002

PN1336

MR BOURKE: And I will just note for the record, sir, there is also attached to that a filenote of 4 October 2002.

PN1337

THE COMMISSIONER: Thank you.

PN1338

MR BOURKE: Now, I just want to examine this allegation that there was attempts to stop requests. Can you go down to the bottom of page 1. You see a message sent from a Patricia Stanojevic?---Yes, yes.

PN1339

And you see it indicates:

PN1340

Hi, team, following our recent Focus groups, I anticipate over the next few days you may receive some questions from people regarding shift payments.

PN1341

?---Yes.

PN1342

And then it goes on to refer to a hearing in the Australian Industrial Relations Commission, on page 2?---Yes.

**** JOHN ALAN JAMIESON XXN MR BOURKE

PN1343

And then it says:

PN1344

Action required of you if you receive a query from one of your people regarding any matter, including shift payments for AWAs. You should aim to work through the concern with the person, and try and achieve a resolution.

PN1345

?---I am just reading through it, if you don't mind, as I - - -

PN1346

Yes, go for your life?---Yes.

PN1347

You see that under "Action required" - - -?---Yes.

PN1348

- - - it raises the issue of attempting a resolution first?---Yes, if they receive an inquiry.

PN1349

Right?---Yes.

PN1350

And do you have any quarrel about that?---No.

PN1351

And then:

PN1352

If unsuccessful, if they wish to pursue the fair treatment processes available to all staff.

PN1353

Do you have any quarrel about that?---I have none whatsoever.

**** JOHN ALAN JAMIESON XXN MR BOURKE

PN1354

And it tells staff that, too, they can direct people to the website?---It says "to tell staff to."

PN1355

Yes?---It doesn't direct staff to.

PN1356

Right, and do you have any quarrel about that?---No.

PN1357

I see. And do you see that that was sent on behalf of Kelly Lolesio?---On the - yes, that was sent to seven team managers.

PN1358

Yes?---On 12 September, yes.

PN1359

But you see, on behalf of a person that the allegations are directed towards, Kelly Lolesio; do you see that?---Yes, that is two weeks before the alleged incident. Yes.

PN1360

Yes, and then I can take you to it, but you write a letter complaining to her saying that she is stopping people filing requests, which is your attachment 14, on 26 September 2002; correct, or do you want to have a look at that again or - - -?---Yes, I know what it says, yes.

PN1361

Okay. And you agree it would be important how she reacts to that allegation?---I would suggest so, yes.

PN1362

Right, and can you go to page 1 of the document, TELSTRA6?---Yes, yes.

PN1363

You see the next day, this is halfway down the page from Kelly Lolesio; do you see that, 27 September 2002?---From Kelly, yes.

**** JOHN ALAN JAMIESON XXN MR BOURKE

PN1364

And she is writing to - - -?---These same seven - - -

PN1365

- - - people that report to her?---Her team managers.

PN1366

Yes?---Yes, the seven, yes.

PN1367

And she says:

PN1368

I have received some confusing feedback from the union today in relation there below. Can you please respond and advise if any of you have received a request for any staff member to pursue the fair treatment process? I require your responses as soon as possible. Thank you.

PN1369

Do you see that?---Mm.

PN1370

Do you agree that that response appears to be inconsistent with someone who is consciously refusing requests?---It doesn't say much to me at all. It says "confusing feedback." I would have thought that she would have said what i had said.

PN1371

I see, I see?---But, once again, that is to her team managers, yes.

PN1372

Right, okay. Now, one of the other matters you raise against Ms Lolesio is the fact that you received an e-mail - this is paragraph 41 of your statement and attachment 15 - on 5 October 2002?---I am sorry, I am just getting to there. Para 41, yes.

PN1373

Yes, and you refer to attachment 15 of your statement?---Yes.

**** JOHN ALAN JAMIESON XXN MR BOURKE

PN1374

Well, you got an e-mail saying that:

PN1375

A request was refused unless I had a real serious issue about it.

PN1376

?---Yes.

PN1377

Right, and the implication of you putting that in is you suggest that is an example of refusal of a request; is that what you are saying?---No, I am not saying it is a refusal. I am just saying it is a matter of fact.

PN1378

I see. Well, can you go to the last page of TELSTRA6 which is a filenote of a meeting - - -?---I am sorry, where - oh, yes, yes.

PN1379

Sorry. That is the three page document. Do you have that?---Yes.

PN1380

If you go to the last page?---Yes.

PN1381

And I will take you to a filenote:

PN1382

P. Lolesio had in relation to a Lyn Stephens.

PN1383

That was the person that sent you the e-mail, wasn't it?---I am not going to say that anyway but - - -

PN1384

Okay, that is fine?---But as a matter of fact - - -

PN1385

No?---I could answer that, but you are incorrect.

**** JOHN ALAN JAMIESON XXN MR BOURKE

PN1386

Okay, all right?---So I am saying it was not Lyn Stephens.

[10.23am]

PN1387

I see. So, you see, here we have a file note, the day before you got the e-mail, dealing with a person who has raised a request and indicates it has been discussed and she has chosen not to pursue it. Ms Lolesio, clearly to protect herself from any possible allegation, has made a note. You got an e-mail the next day and you say it is from somebody else?---I am swearing it was not from Lyn Stevens.

PN1388

Now, one other matter you raise in relation to Ms Lolesio is at paragraph 42, that she didn't send out an e-mail of 10 September 2002 from a Stephen Fox?---Would you say that again, I am sorry?

PN1389

If you go to paragraph 42 of your statement?---Yes.

PN1390

You suggest that to your knowledge, no e-mail from Stephen Fox encouraging staff to use the fair treatment process has been distributed on the site?---Yes.

PN1391

Is it possible you are mistaken on that point?---Well, I said to my knowledge. I certainly don't know if it was, no.

PN1392

Well, are you prepared to concede you could be wrong there, on that point?---Well, I could be unaware, but it doesn't mean I am wrong, no. Well, I am sure - you can show me the - - -

PN1393

Are you prepared to accept that the e-mail may have gone out?---It may have gone out.

PN1394

Now, one other matter you raise, paragraph 38?---Yes.

**** JOHN ALAN JAMIESON XXN MR BOURKE

PN1395

You raise an issue of a site delegate, isn't it, resigning?---Yes.

PN1396

And you level that in relation to some type of allegation that something was going on at Telstra, don't you?---No. I am stating what happened. I think it was worth mentioning.

PN1397

Okay. Are you making an allegation against Telstra that somehow that was related to something Telstra did?---No.

PN1398

Okay, but you decide to put it in your statement?---Yes.

PN1399

I see. That delegate was Sheree Edwards, wasn't it?---Well, every member there has asked me not to be named, them not to be named, so - - -

PN1400

But I am correct, aren't I?---Sheree Edwards was a delegate there.

PN1401

And she resigned?---Yes.

PN1402

On 5 October?---Well, I have got on 24 September that she resigned.

PN1403

I see?---That is from being a delegate.

PN1404

Were you having any difficulties with her yourself, dealing with her?---No.

PN1405

Had you become quite aggressive during this period?---Who?

PN1406

You?---No.

**** JOHN ALAN JAMIESON XXN MR BOURKE

PN1407

Were you putting her under pressure?---No, I never put anybody under pressure, but people take pressure - it is a hard word for people to define, but I know exactly where you are coming from, but, no, I am more than careful with my delegates and it's something - - -

PN1408

Just thinking about the way you behaved during that period, is it possible that you got her off side?---No. I don't like the way you say I behaved, by the way, I am sorry.

PN1409

Well, I am just asking you a question?---I am answering it. No.

PN1410

I have no further questions.

PN1411

THE COMMISSIONER: Thank you, Mr Bourke. Mr Waters.

<RE-EXAMINATION BY MR WATERS [10.28am]

PN1412

MR WATERS: John, could I take you to tab 9 of TELSTRA5?---Yes.

PN1413

Mr Bourke asked you quite a significant number of questions about this particular bulletin from the CPSU. Could you read through the bulletin for me, please, and then take me to the bit where you believe it talks about how the CPSU intends to make Telstra talk?---You want me to read the whole jolly thing?

PN1414

THE COMMISSIONER: You don't have to read it out loud.

PN1415

MR WATERS: If you could read through it to yourself and then take me to the bit?---I am obviously going to read it very carefully, so it may take some time and your question to me is, I am sorry?

**** JOHN ALAN JAMIESON RXN MR WATERS

PN1416

Could you take me to the bit of the bulletin where the CPSU talks about how it is we want to make Telstra talk, what mechanism we want to use?---Okay. Well, in it we ask members to use the union as their representatives. There is no specific place in there that I can see how we specifically say we are going to make them talk:

PN1417

Further actions we can take as a group to protect your employment conditions.

PN1418

Do we talk in there about the AWA and any particular clauses concerning the AWA?---Well, the resolving disagreements process in their AWAs, we ask them to fill in a survey and speak about completing a fair treatment statement.

[10.30am]

PN1419

Would that be Would that be a mechanism to make Telstra talk?---I would suggest it probably would be, hopefully.

PN1420

So the bulletin on the first page links making Telstra talk with the - - -

PN1421

MR BOURKE: Well, sorry, if Mr Waters wants to call himself he can but this is becoming a bit of a circus.

PN1422

MR WATERS: Could you read out for me the section titled "Resolving Disagreements to Make Telstra Talk":

PN1423

?---Each AWA contains a clause heading "Resolving Disagreements". It says the Telstra fair treatment process is used when there is disagreement about your employment or the terms of your AWA. The fair treatment process allows us to force the first step on Telstra having a discussion about the fundamental conditions changed. The discussions 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 - a resolution offers.

**** JOHN ALAN JAMIESON RXN MR WATERS

PN1424

Thank you. Mr Bourke asked you a number of questions about Mr Will Russell being involved in the - in discussions with staff who had put in fair treatment requests?---Yes.

PN1425

And he indicated that - put some questions to you about it being good if there is consistency in the process of being good there was a benefit of having somebody who is experienced involved in the process?---Yes.

PN1426

In your view would it be good if members had the same opportunity?---Yes.

PN1427

Do members have the same opportunity based on Telstra's position in the process as you are aware of it?---No.

PN1428

Could I take you to 20 of TELSTRA5 please?---Yes.

PN1429

Mr Bourke asked you quite a few questions about this interview and interjections that you may have made. Is this document a full record of everything that was said?---No.

PN1430

What else was said in the broad?---Well, I took reasonable notes. I know that Doris was reading from extensive notes and that the meeting last ed an hour and a half. To be honest with you I see more of JJ than anything else.

PN1431

Are the elements where Doris was reading from her notes recorded in this summary?---Very little of it. Very little.

PN1432

Is there much that you said that is not recorded in here?---I'd say everything I said is pretty well there. I noticed - am I allowed to just comment. JJ's been credited with something that - on the last page - one, two, three, four down JJ again - and I think we all tend to look at the JJ bit - apparently it states:

**** JOHN ALAN JAMIESON RXN MR WATERS

PN1433

I worked quite a number of shifts in August and I earned less. I know I work a lot for the union.

PN1434

I think that should not be JJ. I think it should be JA.

PN1435

Sorry, could you take me to where that is?---The last page - DB, JA, DB, JJ. I think it quite obviously should be JA not another JJ.

PN1436

Could I take you back to the first page of term 20?---Yes.

PN1437

And at the bottom of that page is an interaction between yourself and Doris Borg?---Yes.

PN1438

Apparently referring to particular clauses in the AWA?---Yes.

PN1439

Could you outline your recollection of that particular part of the conversation in this context?---Yes. I had asked - because Doris was reading from her notes and referring to Justin's AWA. he didn't have a copy of his AWA. He couldn't find the jolly thing and we'd established with Doris and Doris had given Justin his AWA that he could read along. Now, this was well into the meeting. About half an hour after that - after I'd asked for it - he got it. I sat next to him now rather than away. I sat next because I was - as I've said many times Justin was in a state of shock I believe. He was not in good shape and he was agreeing virtually with everything Doris said. So Doris reading from her notes she got up to clause 16. He's right, right, and I'm reading clause 16 and what Doris was saying - - -

PN1440

So he was nodding was he?---- - - it didn't refer to clause 16. So I - well, I interjected saying that I'm sorry, what you're saying is incorrect, Doris. It's not clause 16.

**** JOHN ALAN JAMIESON RXN MR WATERS

PN1441

So Justin was agreeing something was in clause 16?---Yes.

PN1442

By nodding?---He was going with the flow if I can say that.

PN1443

When in fact that was not the correct clause in his AWA at all?---No, it was wrong.

[10.38am]

PN1444

John, in your interactions with members and employees of Telstra - - -?---Yes.

PN1445

- - - what is the general tenor of what you have been asking of the approach you have been taking with the fair treatment process, talking to them about the fair treatment process?---If you are not happy with it, what is happening, do a fair treatment. If you are happy, there is no need for you to do it. That is the way I have been gong on all the time. If you are unhappy, fill it in. If you are happy about it, good.

PN1446

Could I take you to tab 36 of TELSTRA5?---Yes.

PN1447

Can I draw your attention to the - I think it is the third paragraph starting:

PN1448

Chris said that someone from the union - - -

PN1449

?---Yes.

PN1450

There is a reference in there to e-mails not being able to get through the fire wall?---Yes.

**** JOHN ALAN JAMIESON RXN MR WATERS

PN1451

Have you been having problems in communicating electronically with your members?---I can't - - -

PN1452

MR BOURKE: Well, I object. Sorry, this is not a matter that arose in cross-examination.

PN1453

MR WATERS: I will withdraw the question. If I could take you to your statement?---Yes.

PN1454

At para 82?---Yes.

PN1455

Mr Bourke asked you a number of questions about your attempts to attend a meeting with Mr Foster?---Yes.

PN1456

To your knowledge, had Mr Foster's team leader, who I understand is - - -?---Brian Pearcy.

PN1457

Agreed he could have a representative at the meeting?---Yes, he did. He had, and did.

PN1458

So who was it who then indicated that he couldn't have a representative at the meeting?---Doris Borg. I assume it was - in the end that was the message I was given, that it was Doris Borg who was - - -

PN1459

Who put that message to you?---The security guard.

PN1460

Okay. Could I take you - you then went with Mr Bourke to a discussion about a letter that is at tab 23 to your statement?---Yes.

**** JOHN ALAN JAMIESON RXN MR WATERS

PN1461

That is a letter signed by Mr Russell?---Yes.

PN1462

Could you read the first paragraph of the letter?---

PN1463

Your fair treatment request: thank you for meeting - - -

PN1464

It is all right, just read it to yourself?---I am sorry. Yes.

PN1465

Does it appear to you that Mr Russell was at that first meeting?---No.

PN1466

Does it appear - do you think it unusual then for somebody who was not at the meeting to provide the response, the written - formal written response - - -?---Yes.

PN1467

- - - to Mr Foster?---Yes.

PN1468

Do you consider the terms of the letter to be formal or informal?---Well, it is a very formal letter. It is a four page document.

PN1469

To your knowledge, had Mr Foster provided written grounds to Telstra prior to this fist meeting with Mr Pearcy?---Yes, he had lodged a fair treatment request.

PN1470

Can I take you to tab 43 of TELSTRA5?---Yes.

PN1471

Mr Bourke raised a number of questions regarding Kylie and the process that she went through?---Yes.

PN1472

To your knowledge, had Kylie submitted a written set of concerns prior to her informal process?---Kylie had given a fair treatment request, she had put in a fair treatment request I believe.

**** JOHN ALAN JAMIESON RXN MR WATERS

PN1473

In writing?---Yes.

PN1474

Does this letter appear to address the grounds that were set out in writing to Telstra?---Not particularly, but they refer to clauses in her AWAs as a very general type of a thing.

PN1475

And could you go to the second last paragraph of the letter?---Yes.

PN1476

Is this letter part of the formal or the informal processes as it is now becoming known?---Well, this is part of the informal process, apparently.

PN1477

Could you look in the bottom left hand corner of the letter, on either page?---Yes.

PN1478

Does that appear to be a reference?---Yes.

PN1479

Could you read what it says?---

PN1480

Kylie Giannitis/Freehills.doc

PN1481

Could that be taken, do you think, to indicate that Freehills may have been involved in the drafting?---Yes.

PN1482

Of this informal letter?---Yes.

PN1483

Could I take to paragraph 97 of your statement, please?---Yes.

PN1484

Mr Bourke asked you a question about whether Doris indicated that she could not reverse the decision?---Yes.

**** JOHN ALAN JAMIESON RXN MR WATERS

PN1485

Was Doris asked questions about whether other people who may be involved at later stages in the process - - -?---Yes.

PN1486

- - - had the authority to reverse the decision?---At this meeting here or - - -

PN1487

Yes?---Yes.

PN1488

And is her answer to that recorded in your statement?---Yes.

PN1489

Could you read out for us what her answer to that was?---Well, I will - probably reasonably quick, the conversation, I recorded this particularly well:

PN1490

Kylie, my concern is can you. Speaking to Doris, refers to a decision. Doris: no, at this point, no. No, no, the decision was made by the business. I am not in a position to reverse it. You've got to understand, it is not a decision made only for Victoria, it is a standard. A standard, not site based. What happens next if I decide to continue my fair treatment? The next step goes second level to Steve Fox, meeting with Steve Fox, then an independent body of peer manager, outside mobiles. Kylie asked, who has the authority to reverse it if not you and not Steve Fox who can? It won't be reversed. It is a standard way. A way of getting paid for what you work. The business has made a decision it believes fair and reasonable.

PN1491

Then I state that I kept pretty good notes on what was happening.

PN1492

Mr Bourke asked you a number of questions about Mr Shane Aitken?---Yes.

PN1493

And took you to tab something or other; tab 49?---Right.

**** JOHN ALAN JAMIESON RXN MR WATERS

PN1494

He asked you whether it says in that statement under meeting one, on the third line of meeting one, whether Mr Russell indicated that non-specific issues were outlined?---Yes.

PN1495

Are you aware of whether Mr Aitken had submitted a written - - -?---Yes, he had.

PN1496

Did that contain specific concerns?---Yes.

PN1497

Do you think it is fair to say that the written concerns - and perhaps if you go to tab 47?---Yes.

PN1498

Do you think it would be a fair characterisation that some of these grounds and concerns are technical and go to particular wording of Mr Aitken's contract?---They do. Yes, it is.

PN1499

Do you think Mr Aitken has, in your view, the technical skills to engage in a debate about - - -?---No, no, total - no. I know Shane.

PN1500

Could I take you to TELSTRA6?---Yes.

PN1501

And could I take you to the third page, the filenote?---Yes.

PN1502

Could read out the fourth paragraph for us?---This is from Kelly Lolesio to Lyn Stephens:

**** JOHN ALAN JAMIESON RXN MR WATERS

PN1503

I asked Lyn what outcome expectations she had in handing in the fair treatment document. Lyn responded that she only wanted to provide feedback. I asked lyn if she understood the purpose of the form and clarified with her that by handing in the form she was requesting a meeting involving herself, her manager and the union. Lyn said that she did not want that to happen as her opinion was that they would rave on for an hour and nothing would change. Lyn said she just wanted Telstra to know she wasn't happy about the way things were done.

PN1504

Is it your understanding of the process that by handing in a fair treatment request an employee is requesting Telstra consider a grievance?---Yes.

[10.53am]

PN1505

So is the characterisation of the purpose of reform as set out in the third sentence, starting:

PN1506

I asked Lyn -

PN1507

correct in your view?---No.

PN1508

Thank you. That is all.

PN1509

THE COMMISSIONER: Thanks, Mr Jamieson. thank you for your evidence.

<THE WITNESS WITHDREW [10.53am]

PN1510

THE COMMISSIONER: Now, Mr Waters, you were going to consider a question I posed to you overnight. Before you do that, what is the exhibit number of the fair treatment process in here?

PN1511

MR WATERS: CPSU1 and 2. Commissioner, could I ask for an adjournment of half an hour so I can receive some final instructions with regard to that question?

PN1512

THE COMMISSIONER: Certainly. Can I ask the parties to consider this? I am trying to, and I haven't heard your evidence yet, Mr Bourke, so I may be making assumptions about the nature of your evidence, but please let me know, whether or not these can form any agreed facts as this stage, that a number of persons objected to the changed approach to the payment of shifts, that the internal grievance procedure has been exhausted, that some of those who originally objected no longer object to the change in shift payments and the decision in relation to the change in shift payments could not be altered by persons up to and including review 3. Now, I would just be interested in the view of the parties on those as well.

PN1513

MR BOURKE: Thank you, sir.

PN1514

THE COMMISSIONER: I will adjourn for half an hour.

PN1515

MR WATERS: Thank you.

PN1516

THE COMMISSIONER: Until 11.30.

SHORT ADJOURNMENT [10.58am]

RESUMED [11.46am]

PN1517

THE COMMISSIONER: Yes, Mr Waters.

PN1518

MR WATERS: Commissioner, before I move to the propositions and questions that you have asked, I would like to tender one further exhibit.

PN1519

THE COMMISSIONER: Yes, show it to Mr Bourke.

PN1520

MR BOURKE: This was included in the package of documents that CPSU provided as per the directions and I just simply seek to have it marked.

PN1521

THE COMMISSIONER: It is included there, is it?

PN1522

MR WATERS: It was included in the original package of documents, yes, provided on the 16th.

PN1523

THE COMMISSIONER: I see. And that hasn't been marked yet.

EXHIBIT #CPSU6 BUNDLE OF DOCUMENTS, THE FIRST BEING "BULLETIN TELSTRA MOBILES" OF 08/10/2002

PN1524

MR WATERS: I am not sure which of the two sets of questions you want me to answer first. The way I have got it written down on my sheet, I have got the questions you asked just before we broke.

PN1525

THE COMMISSIONER: That is all right. Answer them any way you like.

PN1526

MR WATERS: In terms of the four questions, we would say yes, it is an agreed fact that a number of people have objected. With regard to the question that the internal grievance procedure is at an end, I think we would have to say no, given that members still have not proceeded in many cases through steps 2 and 3 and in many cases not actually managed to get to stage 1. They are still tied up in the informal part of the process. However, Telstra have indicated pretty consistently that the process will not lead to an agreed resolution.

PN1527

To the question that a number no longer object to the changes, we acknowledge that there have been withdrawals from the fair treatment process but not that in all cases the employee does not continue to object. In terms of the fourth question or the fourth proposition, that the decision could not be changed up to and involving review 3, we say on the basis of the evidence we have that our answer to that is yes.

PN1528

THE COMMISSIONER: Yes. Thank you.

PN1529

MR WATERS: In terms of the propositions put to us yesterday, we say that we have considered the proposition. In our view, there is merit in determining the broad matter due to there being some similarity in the matters before you. We say that the exceptional matters order we seek provides only partial relief. We say in relation to the shift payments and the changes Telstra wants to make to the shift payments that there is a question of law that is raised by the evidence in this matter as to the interaction of contractual terms of the AWA.

PN1530

We apply that the Commission exercise its powers pursuant to section 46 of the Act to refer a question of law for the opinion of the Court. Such a question may be does the AWA in this form permit Telstra to vary the payment in relation to shifts in the manner in which they propose to do so.

PN1531

THE COMMISSIONER: Can I have the clause before me, the relevant clause that is said to be in the contract of employment that you say doesn't permit an alteration to the shift payment approach and which Telstra say does permit an alteration. Do I have a copy of that before me in any of the materials, that particular clause?

PN1532

MR WATERS: Anna Ward's witness statement had a copy of her AWA attached at attachment 1. I think that was CPSU4.

PN1533

THE COMMISSIONER: I will show you what I have and you tell me whether I have got it. I see. So you say that the attachment - just let me understand this correctly - under clause 7, Remuneration, there is at 7.4 an attached remuneration summary, which is that document attached, and in Other Remuneration, Total Shift Payment - and that has got the asterisk, the double asterisked - as to how that is fixed.

PN1534

MR WATERS: Yes.

PN1535

THE COMMISSIONER: That is the argument, is it?

[11.53am]

PN1536

MR WATERS: So Telstra say we understand, and this is reflected in a number of the Telstra exhibits of discussions with members arising out of the fair treatment process that clause 7.6 is the clause on which they rely for their capacity to make the change, which is back in the remuneration section.

PN1537

THE COMMISSIONER: Is it? I thought they were more directed towards 7.1 but I may be wrong in that.

PN1538

MR WATERS: I don't seek to limit the clauses on which Telstra rely.

PN1539

THE COMMISSIONER: No, no, I understand.

PN1540

MR WATERS: 7.6 is - - -

PN1541

THE COMMISSIONER: But that is your position. Your position is that this contract creates an entitlement to a shift payment of $9000 as a remuneration for a year.

PN1542

MR WATERS: Yes.

PN1543

THE COMMISSIONER: Yes, I follow.

PN1544

MR WATERS: We say that there are 700 staff affected by Telstra's action and that this matter goes to the - with regard to the shift payment, goes to the heart of the dispute. And we say that there is clearly on the evidence already before the Commission a fundamental disagreement that goes to the terms of the contract. We say that it is, therefore, fair, just and reasonable for the Commission to exercise its discretion to make such a reference on the collective question.

PN1545

Commissioner, we also say that there is an impending deadline of 6 November on which a significant pay cut will be visited on the members we represent: the pay cut in many cases in the order of $140 a week, 6 to 7 thousand dollars per annum. At any time this would impose a very significant hardship, particularly at this time of the year as we come up to Christmas. It does create particular difficulties for our members. In one case a member mentioned in Telstra's exhibit 5, Rebecca Kaz: Rebecca is a single parent with a 14 year old girl and a 17 year old boy that she has to support. She receives no support other than her wages and is deeply concerned that the pay cut, which for her is in the order of 6-1/2 thousand dollars for this quarter, will mean that she cannot maintain her mortgage payments. Therefore, we - - -

PN1546

THE COMMISSIONER: I am sorry, I don't follow that. If your argument is that the shift payment was fixed for $9000 per annum, mathematically 6-1/2 thousand dollars for a quarter doesn't fit.

PN1547

MR WATERS: Sorry, I mis-stated that.

PN1548

THE COMMISSIONER: Yes.

PN1549

MR WATERS: From $9000 per annum to 2-1/2 thousand dollars per annum for the course of the next quarter which is a reduction in the order of around about $140 per week. The change that Telstra is making, as we went through yesterday, is to review the payment quarterly. For this quarter for Rebecca it is to change from $9000 to approximately 2-1/2 thousand dollars. I don't have the precise figure in front of me. That may be reviewed up or down in the following quarter.

PN1550

THE COMMISSIONER: Well, it was never $9000 a quarter.

PN1551

MR WATERS: No. The annualised - the process by which the change is being expressed is in annualised amounts that will be reviewed quarterly. The existing annual amount is $9000.

PN1552

THE COMMISSIONER: I see, I see.

PN1553

MR WATERS: The new annualised amount for the next quarter is to be 2-1/2 thousand dollars per annum. So for the quarter the annualised amount is 2-1/2 thousand dollars.

PN1554

THE COMMISSIONER: Well, I must have missed something as we have been going through here. I thought people were going to be paid for the shifts they work and there was going to be no averaging. Is that right or not right?

PN1555

MR WATERS: The methodology that Telstra uses is to calculate the shifts that the person worked, and Telstra I am sure can correct me if - - -

PN1556

THE COMMISSIONER: Thank you, but I am interested in your view.

PN1557

MR WATERS: But in the broad - - -

PN1558

THE COMMISSIONER: Yes.

PN1559

MR WATERS: For the three months that you work previously, they will calculate what shifts you worked and what you would have got paid for that.

PN1560

THE COMMISSIONER: Yes.

PN1561

MR WATERS: There is some rounding that goes on. They then move that to an annualised amount, and you are paid that annualised amount for the next three months. During the course of that three months they calculate the shifts you actually worked in that three months, go through the same process of averaging and annualising, pay that for the following three months. So that the shifts you work - - -

PN1562

THE COMMISSIONER: So you are not paid for the shifts you worked. Your payment for the ensuing three months is based upon the shifts you worked in the previous three months.

PN1563

MR WATERS: The historical shifts that you worked, yes.

PN1564

THE COMMISSIONER: It is historical data that gets a trend that becomes your payment for the next three months.

PN1565

MR WATERS: It establishes your payment for the next three months, rather than a trend, yes.

PN1566

THE COMMISSIONER: Yes, I follow.

PN1567

MR WATERS: Therefore, we apply that the Commission exercise its powers under section 111(1)(t) to direct the change to the shift payments not be implemented until the matter has been fully determined.

PN1568

THE COMMISSIONER: Yes, thank you.

PN1569

MR WATERS: We also note that our application for a compulsory conference is an action available to the Commission, and that this could occur in a timely fashion ahead of 6 November. Noting the applications that we have made and the other comments,we would support an adjournment to the matter with each party at liberty to apply with 48 hours notice.

PN1570

THE COMMISSIONER: Thanks, Mr Waters. Mr Bourke.

PN1571

MR BOURKE: Can I deal with the proposed agreed facts first?

PN1572

THE COMMISSIONER: Yes.

PN1573

MR BOURKE: We are in agreement that a number of persons have complained about change in shift payments. We are in agreement that the internal grievance process, in fact, has not exhausted.

PN1574

THE COMMISSIONER: Yes.

PN1575

MR BOURKE: In relation to - we are in agreement that some objections have been withdrawn.

PN1576

THE COMMISSIONER: Yes.

PN1577

MR BOURKE: We are in dispute, number 4, that a decision couldn't be altered by persons involved up to review 3 or if that, we say, needs to be qualified, that the magnitude of the issue for a material variation would require approval from a group of leadership personnel; that at any stage in the process although, for example, a centre manager could not make that decision, they could escalate issues that could go via their superiors to the leadership group, and a decision could be made varying the decision. We say particularly at review number 2 involving Stephen Fox, he is a critical player in the decision being made and that, if he came to the view there should be change, that would be given substantial weight by the leadership team in terms of the potential for any change in response to any recommendation he made.

PN1578

So we say there is a real opportunity that throughout the process a change in the decision could occur. But it could not occur, for example, in a meeting, someone off their own bat - - -

PN1579

THE COMMISSIONER: No.

PN1580

MR BOURKE: - - - say I am going to make a change.

PN1581

THE COMMISSIONER: All right. You have now got experience with a number of people who have objected to the change. Is it possible for Telstra to now take that collective experience and ask whether or not the decision would be altered?

[12.02pm

PN1582

MR BOURKE: Well, we could put that together and take that to the leadership.

PN1583

THE COMMISSIONER: Yes, because you have now heard extensively from your staff about matters of concern to them. We don't necessarily have to have more bulletins encouraging people to continue with the escalation process, do we? You know the parameters of the problem. It is really then a question of whether or not Telstra agrees to alter it, having regard to the issues raised by their staff, or not. How long would that answer take?

PN1584

MR BOURKE: To pursue that issue?

PN1585

THE COMMISSIONER: Yes. Do you know?

PN1586

MR BOURKE: Excuse me. The message I am getting is a framework of about 14 days.

PN1587

THE COMMISSIONER: Very well. Well, if I could be advised within that time frame, I would be grateful.

PN1588

MR BOURKE: Yes. Thank you. Can I deal with the adjournment application question? Our preference is to get the matter dealt with. We are halfway through. We say there is a forensic advantage in having the opposing evidence immediately after the contrary evidence of the CPSU and for submissions to be freshly made whilst the effect of the evidence on you as the decision-maker was fresh in your mind and the trail can go cold. Even with the benefit of transcript and so forth, it is better for that to be done. Included in that is that we really say the matter should not be going forward.

PN1589

We have got our abuse of process point, but further to that, the earlier application that you, Commissioner, referred to is an award variation point. This deals strictly with the AWA, so we say - - -

PN1590

THE COMMISSIONER: No, but your point in your written submissions is that this is now a device for consultation.

PN1591

MR BOURKE: That is our point.

PN1592

THE COMMISSIONER: And the EMO talks about persons being involved in the fair treatment process. Now, that is the point that is before me in the award matter, squarely.

PN1593

MR BOURKE: Well, can I just say this? As I said, we won't complain in relation to you handing down a decision in another matter and we not being heard on those issues. We want this matter to be over and done with. If you are against us, we would urge you to complete the evidence and addresses. You could reserve and if you then want the - you could then deliver your further judgment and invite the parties if they want to make further submissions either orally or in writing, but we think this chapter should be closed as much as possible.

PN1594

THE COMMISSIONER: Yes.

PN1595

MR BOURKE: Now, in relation to section 46, we complain, we do complain about that just being raised on the run, at the end of their evidence. It is a very important power to put the Federal Court to the expense to determine a legal issue. We really have not had any notice that this application was forthcoming and we would object to it being dealt with as an on the run point to shunt off a legal question which is not, we note, raised in any way in the outline of submissions that were exchanged. Somehow, it is now suddenly a focal point.

PN1596

There is nothing preventing an applicant, supported by the union or not, bringing a question of law to the Federal Court, but we say it is very dangerous, the opposite party caught on the run, this application coming out of the blue, to send off a question which may not in the end be the real question that needs to be determined and from the outline of submissions, it does not need to be determined. We flag that our copy of the Anna Ward contract doesn't have the schedule. I don't know if yours does, our copy that was provided by the CPSU.

PN1597

THE COMMISSIONER: The remuneration summary?

PN1598

MR BOURKE: No, it did not have that.

PN1599

THE COMMISSIONER: Yes, mine has.

PN1600

MR BOURKE: So we say that that power, which is the important power, should not be exercised in such an environment.

PN1601

THE COMMISSIONER: Well, firstly you say you haven't had an opportunity to consider the matter.

PN1602

MR BOURKE: We haven't had an opportunity to consider it.

PN1603

THE COMMISSIONER: I understand, yes.

PN1604

MR BOURKE: And we also do point to the way in which the application was made, without notice, seemed to be an afterthought and what it does mean is resources of the Federal Court suddenly have to be devoted to this question.

PN1605

THE COMMISSIONER: Well, it is not one I can resolve, but one which may be relevant in the arbitration.

PN1606

MR BOURKE: Well, we don't see where it fits to the arbitration. At the moment, the focus of the evidence, the focus of the relief sought, the focus of the outlines goes to the grievance process.

PN1607

THE COMMISSIONER: Yes, but it is like many issues that come before the Commission at the moment. The Commission is powerless to get at the cause of the dispute and this is the cause of the dispute, your view about how the contract operates as opposed to the union's views about how the contract operates.

PN1608

MR BOURKE: And there is nothing stopping the CPSU through an applicant, through one of their members, bringing the matter on to the Federal Court and I think they have got a good point, but to pass that responsibility to the Commission we say is unsatisfactory.

PN1609

THE COMMISSIONER: Yes, I follow.

PN1610

MR BOURKE: Now, again we object to an application under section 111(1)(t), the way it came. There is no notice about application.

PN1611

THE COMMISSIONER: I don't ask you to address that.

PN1612

MR BOURKE: Yes, thank you. If the Commission pleases.

PN1613

THE COMMISSIONER: What I propose to do is this. I am going to adjourn until I hear the answer from Telstra as to whether its view remains the same. I believe that is an important part of the overall consideration of this application. I take Mr Bourke's point about evidence being fresh and as soon as I have heard the answer from Telstra, I will reconvene and hear further submissions. I will then hear further submissions on the application that has been made in relation to section 46 of the Act. I will take no action on that matter at this stage and I will then, if it is continued to be pressed, hear any submissions on the section 111(1)(t) point at that stage as well. Any questions arising from that?

PN1614

MR BOURKE: If the Commission pleases, no.

PN1615

MR WATERS: No questions, but is there any view from Telstra as to whether they will implement the decision while they go through the process of answering the question?

PN1616

MR BOURKE: I don't know the answer to that.

PN1617

THE COMMISSIONER: Mr Bourke is not instructed, but you can take it that his clients will consider your inquiry, but I give no directions on that point. Thank you, the matter is adjourned.

ADJOURNED ACCORDINGLY [12.12pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

JOHN ALAN JAMIESON, ON FORMER OATH PN1281
CROSS-EXAMINATION BY MR BOURKE PN1281
EXHIBIT #TELSTRA6 SERIES OF E-MAILS BEGINNING WITH ONE DATED 30/10/2002 PN1336
RE-EXAMINATION BY MR WATERS PN1412
WITNESS WITHDREW PN1510
EXHIBIT #CPSU6 BUNDLE OF DOCUMENTS, THE FIRST BEING