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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N VT818
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT DUNCAN
C2001/4327
C2001/4475
FINANCE SECTOR UNION OF AUSTRALIA
and
AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED
Notification pursuant to section 99 of the Act
of a dispute re total employment cost salary
packaging and an associated individual employment
agreement
BANKING SERVICES - ANZ GROUP -
AWARD 1998
Application under section 113 of the Act by
Finance Sector Union of Australia and another
to vary re the insertion of a new subclauses
from 6.3 relating to Total Employment Cost
(TEC) package agreements
MELBOURNE
10.36 AM, WEDNESDAY, 20 NOVEMBER 2002
Continued from 15.5.2002 in Sydney
PN832
THE SENIOR DEPUTY PRESIDENT: Are there any variations to appearances?
PN833
MR M. McDONALD: Could I announce a change in appearance, if your Honour pleases. I now seek to appear as counsel pursuant to leave previously granted.
PN834
THE SENIOR DEPUTY PRESIDENT: Very well, Mr McDonald.
PN835
MS MALONEY: Your Honour, there is a variation to our appearances. MS H. LEWIS is appearing with us today, and I think I have announced previously an appearance on behalf of MR P. LARAGY.
PN836
THE SENIOR DEPUTY PRESIDENT: Yes, you have. Ms Maloney?
PN837
MS MALONEY: Your Honour, I think your Honour was advised on 15 November that the parties have agreed that in respect to today's proceedings, that we proceed with taking witness evidence. I refer to correspondence that Freehills sent to your Honour, in which we advised that we would this morning be calling Ms Catherine Noye, and take her through her evidence, and then this afternoon at 2 o'clock, Mr Anthony Beck would be here to give his evidence. And I understand from Freehills, and from their letter, that they will have Mr Baker this afternoon at around 3.15. I don't know if that is still the situation. If they want to clarify that.
PN838
MR McDONALD: I am not sure to what extent there is flexibility with Mr Beck's availability. It may well be, your Honour, that if he was available before lunch we could get to him before lunch.
PN839
THE SENIOR DEPUTY PRESIDENT: It depends which comes first, doesn't it?
PN840
MR McDONALD: Yes. On the basis of the preparation of the cross-examination that I have done for Ms Noye. And I am assuming that the witness statements stand as evidence-in-chief, and that save for any additional questions by leave, that that is the evidence-in-chief, and we are straight into cross-examination. I don't expect that I would go for two hours in cross-examining Ms Noye, but I don't want to be dogmatic about it, your Honour.
PN841
THE SENIOR DEPUTY PRESIDENT: Look, I think the arrangement was made by agreement between the parties.
PN842
MS MALONEY: Your Honour, can I clarify. I am not quite sure if Mr McDonald has been advised but, yes, when it came to our attention that Mr Beck was unavailable before 2 pm today, I contacted Mr Tuck at Freehills, and advised him that Mr Beck has another commitment. Following those discussions, and after conferring with your associate, the parties agreed that this morning we would deal with Ms Noye's statement. It is correct that the statement that has been tendered with our submissions is the statement that we are relying upon, but we also have tendered and filed yesterday and lodged a supplementary statement, and we wish to take Ms Noye through that.
PN843
As arising from the discussions I had with Mr Tuck, it was agreed that Mr Beck would appear at 2 o'clock this afternoon. Mr Tuck initially advised me that they thought that they would need about - well, his initial position was that Mr Baker would come on tomorrow morning, then he came back and advised me that they are prepared to have Mr Baker available at 3 o'clock. So I am just reporting on what had been agreed. But I have just noticed in the letter that Mr Tuck said to your Honour, on 15 November, they anticipate calling Mr Baker around 3.15, and I was just seeking clarification of whether that is still the case. We have no problem with that, I was just seeking clarification.
PN844
MR McDONALD: Yes, that is the case.
PN845
MS MALONEY: That was the arrangements that had been agreed to, your Honour.
PN846
MR McDONALD: If the position is, Mr Beck is not available until 2 o'clock, then so be it, that is it.
PN847
THE SENIOR DEPUTY PRESIDENT: That is right. The agreement seems to have been come to in the light of unavailability, so we will stick to what was written by Mr Tuck.
PN848
MS MALONEY: Thank you, your Honour.
PN849
THE SENIOR DEPUTY PRESIDENT: Ms Maloney?
PN850
MS MALONEY: Your Honour, I would like to, at this stage, if I could call Ms Catherine Noye?
PN851
MR McDONALD: I am sorry to keep jumping up and down. I wonder, just before the proceedings commence, there is something that I wanted to put on the record, and I do so on instructions, your Honour. If you have at hand a copy of the application which has been filed, or the terms of the draft order perhaps?
PN852
THE SENIOR DEPUTY PRESIDENT: Did it vary from the first one?
PN853
MS MALONEY: Yes, your Honour. The amended application is contained in the submission that we filed on 28 August.
PN854
THE SENIOR DEPUTY PRESIDENT: Yes. It is the first document in the written submission of 28 August.
PN855
MR McDONALD: The draft order, do you have that at hand?
PN856
THE SENIOR DEPUTY PRESIDENT: The draft order, that is what I am looking at.
PN857
MR McDONALD: Yes. In relation to clause 6.2(1), you will see the order which is sought is:
PN858
ANZ may offer, and a staff member may accept a total employment cost remuneration package if the staff member is permanently appointed to a position graded not lower than level 3.
PN859
Now, the first thing I want to place on the record is this, your Honour. The bank has not and has no intention of making offers of TEC packages to any person graded lower than level 3. Now, I put that on the record without in any way conceding the jurisdictional issues that have arisen in the case, but in terms of the merits that is the position, your Honour. In relation to clause 6.4 of the draft order, you will see that there is a regime set out, a form of prescription in relation to the offering of TEC packages to level 3 staff members.
PN860
I wish to put this on the record. The bank has not and has no intention of offering TEC packages to any level 3 employee, save for a level 3 employee employed as a branch manager and rated as level 3 pursuant to the application of the company's Hay point system. In that respect, your Honour, there are presently some 163 level 3 branch managers, all of whom received offers of TEC packages in July of 2001, and of whom, on my instructions, 149 have accepted the offers.
PN861
MS MALONEY: Your Honour, without wanting to interrupt, but, your Honour, this issue goes to - - -
PN862
THE SENIOR DEPUTY PRESIDENT: I am always amazed by people who rise, and the first thing they say is they don't want to interrupt.
PN863
MS MALONEY: Your Honour, this issue goes to the issue of merit, and particularly - - -
PN864
MR McDONALD: Well, that is why I have raised it.
PN865
THE SENIOR DEPUTY PRESIDENT: Yes, that is why you are raising it.
PN866
MR McDONALD: Because we are about to have evidence, and I am not putting anything on the record that hasn't been, on my instructions, told to the union directly.
PN867
THE SENIOR DEPUTY PRESIDENT: I am sure the deponent of the bank's affidavit refers to those figures.
PN868
MR McDONALD: Yes, your Honour, he does.
PN869
THE SENIOR DEPUTY PRESIDENT: Look, it seems to me to be a sensible thing to do before the examination and cross-examination takes place.
PN870
MR McDONALD: It is the parameters of the case, your Honour. So, of course, we no doubt can have arguments and debates about 89A and esoteric questions of allowability and the like, but insofar as the parameters of the issues in the case are, we wish to put on the record right at the start, so there is no criticism of me standing up in final submissions and making this submission, we want to put on the record right at the start that from the bank's perspective the core issues in this order, that is, one, 6.2.1 is not in issue, and in relation to 6.4, the substance of these proceedings concerns a total pool of 163 employees of whom only 14 have not accepted the TEC package. If the Commission pleases.
PN871
THE SENIOR DEPUTY PRESIDENT: Yes, Ms Maloney?
PN872
MS MALONEY: Well, your Honour, as will come to light in our submission, and as evident by the statement that has been put in by Mr Baker, it is not even correct that the TEC has been offered to level 3 branch managers. The TEC offers, or those who accepted, have been accepted by what has been described by ANZ as group 4 category AA. Now, that is a threshold issue which our submission goes to, and so the parameters are probably even a bit broader than what Mr McDonald has put to you.
PN873
That is the only reason I raised the issue of merit, because it is clear, in our submission, that what ANZ has done, undermined our application. I intend to go to that in terms of our submission. So, I mean, that is the reason I raised it. But, your Honour, on the basis, as we understand that the offers were made to branch managers at level 3, we understand that. In terms of what that means or in terms of what category AA group 4 means in terms of our application and the award generally, that issue is in our submission, especially in our submission in reply to what ANZ has put. So we are prepared to proceed on that basis.
PN874
THE SENIOR DEPUTY PRESIDENT: Yes. Well, that is perfectly satisfactory from my point of view for both sides. There is one thing, since we have managed to interrupt each other so significantly, that I would raise. This may sound a bit ignorant, but I would appreciate the parties preparing - I know it is in the evidence, I have read the evidence in the affidavits - if the parties could by agreement produce a document which set out the classification system under the award. Not now. I read it, I think I understand it, I read it again, and I come to a different conclusion as to what it is all about, these groups and levels, this may be as far as comprehension is concerned.
PN875
So the parties might bear that in mind that what it does mean for their examination and cross-examination for a start, is that, don't assume that I am immediately going to pick up what group 5, level 3 means. If you would just bear that in mind. Now I think we are ready, Ms Maloney.
PN876
PN877
MS MALONEY: Would you please state your name and address for the record?---My name is Catherine Anne Noye, and I reside at 72 Alma Terrace, Newport, and I work at 341 Queen Street, Melbourne.
PN878
Thank you. And, Ms Noye, what is your occupation?---I am the assistant branch secretary of the Victorian/Tasmanian Branch of the Finance Sector Union.
PN879
Ms Noye, have you prepared a statement for these proceedings?---Yes, I have prepared a statement for these proceedings.
PN880
Do you have a copy with you?---I do.
PN881
Are the contents of that statement true and correct?---Yes, they are.
PN882
Your Honour, I am in a position to tender that witness statement of Ms Noye, however, I do note that the witness statement was filed with our submissions of 28 August, and also served on ANZ. Does your Honour require me to tender another copy?
PN883
THE SENIOR DEPUTY PRESIDENT: It would be helpful, because I would then not have to break up the submission, which is a good idea. Any objection to that tender, Mr McDonald?
PN884
**** CATHERINE ANNE NOYE XN MS MALONEY
PN885
MS MALONEY: Ms Noye, have you prepared another statement subsequent to your original statement?---Yes, I have.
PN886
Do you have a copy of that statement with you?---Yes, I do.
PN887
Are the contents of that statement also true and correct?---Yes, they are.
PN888
Your Honour, I would tender a copy of that supplementary witness statement, and I also note that it was filed and served with the documents that were served yesterday, your Honour.
PN889
THE SENIOR DEPUTY PRESIDENT: Any objection, Mr McDonald?
PN890
PN891
MS MALONEY: Your Honour, I seek your guidance. In view of the fact that supplementary witness statement was tendered in accordance with the directions with the material filed and served yesterday, I seek your guidance as to whether it would be appropriate for Ms Noye to read the statement onto transcript?
PN892
THE SENIOR DEPUTY PRESIDENT: No, it is not necessary. Not that it is not appropriate, it is not necessary. I have read it, and I am sure Mr McDonald has read it.
**** CATHERINE ANNE NOYE XN MS MALONEY
PN893
MS MALONEY: Well, your Honour, if I could take Ms Noye to the supplementary witness statement.
PN894
Ms Noye, if I could take you to paragraph 9 of your supplementary witness statement. In that paragraph you state:
PN895
Having reviewed the financial comparison table attached to Mr Baker's statement, we dispute the accuracy and relevance of that table as it is based on minimum figures and does not take into account the loss of earnings from overtime worked, or the loss of concessional lending.
PN896
And I also note that attached to your supplementary statement, in appendix A, are four tables. Would you like to explain to the Commission what these tables are and what they mean?---Okay. Well, table 1 is a comparison of L, level 2 as opposed to the cat AA, and where it differs from the ANZ table is that it has, in the ANZ table it had just the minimum rates of pay when, in reality, most L2 employees either have moved from minimum and are either on proficient or maximum, which is outlined there. That is the first difference. The guaranteed income is as ANZ has said, with base salary, superannuation, leave loading, RDOs, that is guaranteed income. But there is other variable benefits that are also here, and we have put it into two different tables. On the first page is for the comparison of level 2, it is the increase available if the employee receives a 3B, which means they get a performance bonus. There is also overtime at five hours a week. And the reason I have put in five hours a week is because that was the average worked by most of the people that I have spoken to, and the concessional lending, which is the concessional lending that is available to non packaged employees. When we go down to comparison of level 3, that is the same as above, with the minimum proficient and maximum, also with overtime of five hours a week, concessional lending and the increase available if they receive a 3B. Over the page is the comparison of level 2 with low overtime figures, because it may be that some managers don't work a whole lot of overtime, and so we have got here overtime of one hour a week, which is, if anything, that is a lot lower than most people would work, but we put in an overtime rate of one hour just so that we could show that comparison and show that there is still a loss of earnings with the cat AA. That is there for level 2 and also with level 3.
**** CATHERINE ANNE NOYE XN MS MALONEY
PN897
I have no further questions for this witness.
PN898
PN899
MR McDONALD: I wonder if my friend could assist me here. I want to take the witness to some documents that are attachments to the union's written submission. I wonder if there is a spare copy of that available? If not, well, I can manage.
PN900
MS MALONEY: Well, I suppose the question of whether it is in the scope of Ms Noye's evidence, that was all. I wasn't sure what attachment Mr McDonald is referring to.
PN901
MR McDONALD: Well, attachment 1. It is all right, I will just have the witness adopt it. It is all right.
PN902
I want to take you first, if I may, to the memorandum of understanding, Ms Noye, which is at attachment 1 to the union's submission. Could I hand the witness a copy of that document?
PN903
MS MALONEY: Your Honour, I seek clarification. I am not aware that Ms Noye has given any evidence as to the memorandum of understanding.
PN904
THE SENIOR DEPUTY PRESIDENT: No, that is true. But it is cross-examination, and I am prepared to entertain the questions until I see that they are either irrelevant or beyond Ms Noye's knowledge.
PN905
MS MALONEY: Thank you.
**** CATHERINE ANNE NOYE XXN MR McDONALD
PN906
THE SENIOR DEPUTY PRESIDENT: Yes, Mr McDonald?
PN907
MR McDONALD: Now, the document I have placed in front of you, Ms Noye, is a copy of a memorandum of understanding. You no doubt have seen the union's submissions which have been filed in these proceedings?---I have seen the submissions, yes.
PN908
And you have read the submissions?---I have read them, yes.
PN909
All right. Now, this memorandum of understanding dates back to 1994, and the submission makes reference to the fact that this was part of the process by which TEC packaging was introduced at that time. Now, I just want to draw your attention - sorry, I will go back a step. You have worked with the union since 1997; is that correct?---That is right, yes.
PN910
And that is in a full-time position?---That is right.
PN911
Did you previously have any honorary positions at all with the union?---No, I didn't.
PN912
No. Were you previously working in the industry?---No, I wasn't.
PN913
Thank you. Could I just direct your attention to clause 4 of the memorandum of understanding:
PN914
ANZ makes the following commitments to managers who choose to accept the offer of TEC packaging.
PN915
Now, firstly, in light of his Honour's observation earlier, when TEC packaging was introduced in 1994, thereabouts, it was introduced in respect of those employees classified as category A through to category E?---Mm.
**** CATHERINE ANNE NOYE XXN MR McDONALD
PN916
And if we look at a copy of the award as it presently stands - I will just hand you a copy of that, if I may. I am just handing the witness a copy of clause 16 of the 1998 award. Does the Commission have that available, a copy of the 1998?
PN917
THE SENIOR DEPUTY PRESIDENT: Not immediately, but I think it has been tendered somewhere.
PN918
MS MALONEY: Your Honour, yes. It is actually in Freehills document.
PN919
MR McDONALD: It is annexed to Mr Baker's submission, I think. Yes, your Honour, it is CB3, at page 11-2 of CB3, clause 16.
PN920
THE SENIOR DEPUTY PRESIDENT: Yes.
PN921
MR McDONALD: Now, you see the classification structure set out there, category A to category E, and it is those classifications which are known as group 4 classifications; correct?---Yes, that is right.
PN922
And it is fair to say that it is those classifications in broad terms described as management classifications?---That is right, yes.
PN923
Yes. And level 3 has been in terms of the classification structure as set out here, has been the step immediately before progressing into the management structure under the award; correct?---That is right, yes.
PN924
Thank you. Now, if I can take you back to the terms of the memorandum of understanding and direct your attention to clause 4. Now, clearly at the time this memorandum of understanding was put in place, this was referring to the reference to managers as a reference to anyone classified A to E within that classification structure:
**** CATHERINE ANNE NOYE XXN MR McDONALD
PN925
ANZ makes the following commitments to managers who choose to accept the offer of TEC packaging. No manager will be financially disadvantaged by accepting TEC packaging.
PN926
Now, you can only talk of your own experience, I understand that. But in the period that you have been working with the union, are you able to give any direct evidence of a manager at a group A to group E level having made a complaint about being financially disadvantaged as a consequence of going onto TEC?---You are talking about cat A to E?
PN927
Yes?---Well, yes, when people signed the individual contracts that ANZ put out late last year.
PN928
All right. I will ask a different question. Prior to July of 2001, when that offer went out, are you aware of any employee having made a complaint to the union about being financially disadvantaged?---Well, I am personally not aware. But we receive many complaints all the time, but I personally have not had a complaint prior to the individual employment contracts.
PN929
All right. So you are not able to give any evidence about that?---No.
PN930
And you are not aware of any occasion prior to July 2001 when the union had cause to raise with ANZ management any concerns about a TEC employee being financially disadvantaged?---Well, I am not aware, but then I have only been the assistant branch secretary in the last 18 months; prior to that I was an organiser. When the union would be making complaints to ANZ, they would not be letting me know personally, so I can only answer on behalf of myself.
PN931
Well, as an organiser, presumably you had direct dealings with members?---Yes.
**** CATHERINE ANNE NOYE XXN MR McDONALD
PN932
And including members classified A through to E?---Yes. So you are saying prior to the individual employment contracts?
PN933
July 2001?---I personally am not aware prior to the individual employment contracts. After the individual employment contracts were issues, yes, there were many complaints.
PN934
Yes, thank you. Now, the award, what was at the time the 1991 award, was varied in 1995, early 1995, and a board of reference was established, and that board of reference was known as the ANZ FSU TEC Packaging Consultative Board. Are you familiar with that?---No, I am not.
PN935
No. That board operated up until the expiry of the 1991 award. It was replaced in August 1998; correct?---I am not aware of that. I only started in the union in 1997.
PN936
All right. Well, between 1997, when in '97 did you start?---November 1997.
PN937
All right. Between November 1997 and the new award coming in, I think it was August 1998, you are not able to give any evidence of the board of reference ever having to convene for the purposes of considering issues relating to total employment cost packages?---No, I am not. As I stated, I was an organiser at that time, and I wasn't involved in those things.
PN938
And are you also aware that in January of '95 the 1991 award was varied, clause 48 was varied to insert a dispute setting procedure, clause 48 was varied to provide that in the event of a dispute - shorthand - this is tab 2 to the union's submission, your Honour - in the event of a dispute the manager will be able to seek the assistance of the Australian Industrial Relations Commission to resolve this issue, to resolve the issue. The operation of this procedure will be reviewed by the parties before 31 October '96. Now, again, during the period that you were working, November '97 through the middle of 1998, do you have
**** CATHERINE ANNE NOYE XXN MR McDONALD
any knowledge of the dispute settling procedure under the 1991 award ever having been activated in relation to a dispute concerning TEC packaging?---I am aware of the dispute resolution procedure, but I am not aware of any particular case on the TEC. As I said, I wouldn't have had coverage of matters such as that.
PN939
Well, for the purposes of preparing for this case, have you made any inquiries about that issue?---My involvement in this case has been purely on responding to member concerns and meetings with the members and talking to them about their concerns. That is the extent of my involvement.
PN940
So if I put to you, and I do put to you that prior to August 1998 there was never an occasion when the dispute setting procedure under clause 48 was activated, with the result of the matter coming to the Commission, you couldn't take issue with that?---Well, I can't comment on it because it is not something that I have had cause to look at, and it is not something that I am aware of.
PN941
Yes. Well, did you have any involvement in relation to the negotiations in August 1998, concerning the new award and certified agreement?---My only involvement was as an organiser going out and speaking to members and consulting with members, and then feeding that back into the national office, who were involved in the negotiations.
PN942
Presumably you would have had the opportunity to give feedback up the line, so to speak, as to what issues were relevant issues which should be agitated in those negotiations; correct?---Well, yes.
PN943
There would have been, presumably there would have been meetings within the union, would have had meetings and discussed, well, you know, what are the issues which we need to agitate in these negotiations; correct?---Yes, that is true.
PN944
And when one looks at the 1998 award and the agreement, certified agreement, there is no reference to a board of reference, and there is no reference to a dispute setting procedure in relation to TEC packaging disputes; correct?---Yes.
**** CATHERINE ANNE NOYE XXN MR McDONALD
PN945
The document speaks for itself?---Yes.
PN946
Well, can I put it to you, the fact that there isn't anything - can I put this to you; not only is it not in the award or the agreement, in the negotiations which preceded the making of the award and the agreement in 1998, the union, it was not on the union's agenda to have a board of reference or a dispute settling procedure in relation to TEC packaging issues; that is also correct, isn't it?---Well, I can't say what is correct about what was the intent of the negotiators for the FSU. I can only tell you that in my job as an organiser, when you have member meetings you are talking about bread and butter issues for most of the employees. The management levels often don't attend those union meetings, and if they have complaints they usually make them on an individual basis through our membership services team, and they would go through to national office. So I would not be aware of it.
PN947
As an organiser, if there were issues in the first six months, if there was still a live issue regarding TEC packaging for the category A through to E employees, you would have expected that to be on the agenda in the negotiations with ANZ management, wouldn't you?---Well, if it was, as I stated already, that if there was an issue it would generally be made through another channel such as - so you are asking me a question that I actually can't answer.
PN948
Well, you can in this sense. You are an organiser, you have given evidence that you have participated in meetings where there were discussions about what were issues relevant in those negotiations?---Yes. And I have said that the managers weren't at those meetings.
PN949
I am sorry, I might be at cross purposes. I am talking about meetings within the union. Didn't you, as union organisers, get together within the union to give consideration to what are the matters which should be on the agenda for the negotiations; correct?---Yes, at a branch level.
**** CATHERINE ANNE NOYE XXN MR McDONALD
PN950
Right. That is what I am asking you to direct your attention to. What I am putting to you is this. That in those discussions within the branch which you participated in as an organiser, at no time was there any issue in relation to dispute settling procedure, board of reference, and the like, apropos TEC packaging?---Well, not - the dispute resolution procedure is in the award. The dispute resolution procedure is about any matter that there is a dispute about. Now, we may have talked about the dispute resolution procedure, but not in any particular reference, there was no particular framework, it is just the dispute resolution procedure.
PN951
What I wanted to put to you is this, Ms Noye. That up until August '98 - I appreciate you can only speak from your own direct experience - but based on your experience, November '97 to August '98, there was no industrial issue, live industrial issue concerning the terms on which TEC packages were offered to category A to E managers; that is a fair statement, isn't it?---Well, it was my understanding - all I can tell you is my understanding at the time of what the TEC was, and it was on an offer and acceptance basis, and that people would not be financially disadvantaged. That is all I understood.
PN952
If you could please just stay with the question. What I am asking you is this. That in the period November '97 to August '98, you are not aware through your involvement as an organiser, both with the members and within the branch, of there having been any disputes, any issues concerning TEC packaging; that is a fair comment, isn't it?---Well, I am not personally aware of it, no.
PN953
MS MALONEY: Your Honour, I do raise the relevance of the cross-examination. The application that is before the Commission has two basic characteristics. One, it seeks the issue of that offers of TEC and acceptance of TEC be voluntary, so that obviously goes to group 4 managers. But in terms of the issue - and the level 3 - but in terms of the other issues in the application to vary, they go to what we describe as inserting safety protections for level 3 managers, putting aside what Mr McDonald said at the beginning, but level 3.
**** CATHERINE ANNE NOYE XXN MR McDONALD
PN954
The application isn't going to the issue about the conditions, with the exception of the issue of voluntaryism. It doesn't go to the issue of the conditions upon which TEC is introduced for group 4 managers category A to E. Your Honour, that was dealt with in 1994. The history of that is quite clear. And accordingly, Ms Noye's evidence, as in her statements, goes to the matter that is at hand in terms of the application, and that is for the level 3 branch managers. Her evidence doesn't go to the group 4 in terms of whether they were financially disadvantaged or not, because that is not the subject matter of the application to vary. So I question the relevance of the cross-examination, your Honour.
PN955
MR McDONALD: Well, look, in my submission it is clearly relevant. You need do no more than read clause 6.3 of the draft order, your Honour. Clause 6.3 of the draft order applies to 5000 group 4 managers. We are having a shifting of the goal posts, to put it mildly, and hence the relevance of that evidence.
PN956
THE SENIOR DEPUTY PRESIDENT: I will permit the questioning to continue. I do make the observation that Ms Noye has been consistent in her statements that her knowledge is limited.
PN957
MR McDONALD: It is perhaps a matter more for Mr Beck. I am moving on now, your Honour, in any event.
PN958
THE SENIOR DEPUTY PRESIDENT: Well, I am glad you made that suggestion, because it did enter my mind that that was perhaps a more appropriate well to cast for water in.
PN959
MR McDONALD: Now, can I ask you to turn your mind back to July of 2001, when the offer of TEC packages went out to 163 level 3 branch managers. Now, it is fair to say, is it not, that the impetus for the union's application, this application to vary the award, the impetus for that application has been the offer to those level 3 managers?---The impetus for our application has been the complaints from our members on the way that it has been offered, and the financial disadvantage of some of those members.
**** CATHERINE ANNE NOYE XXN MR McDONALD
PN960
Post July 2001?---Yes.
PN961
Thank you. And can I put this to you. That if one looks at the terms of the draft order which has been prepared in these proceedings by the union, the terms of that draft order, particularly clause 6.4, which is specific, it says in relation to the offering of total costs remuneration packages to level 3 staff members the following conditions shall apply, and there is 11 conditions. That clause has been specifically formulated in response to concerns and the like which the union has received post July 2001 from those level 3 managers who received an offer; correct?---I didn't prepare that.
PN962
No. But that is uncontroversial - - -?---But I would assume that that is - - -
PN963
That is an uncontroversial proposition?---Yes.
PN964
Thank you. Now, you may not be able to answer this; if you can't, please say so. From where you sit as the Assistant Secretary of the Victorian/Tasmanian Branch, is it part of the union's motivation in bringing the application that the union has a concern regarding the potential that the bank may seek to extend the offer of TEC packages to level 3 employees beyond the pool of those branch managers who received offers in July of 2001?---Well, I can speak on behalf of the branch, and the branch's concern has been that there is no voluntary nature to the offer of these, and there is no scope for our members to either accept or not accept its - they accept it or they don't have the job. That is our concern. And the other concern is that while it is made on that basis, they are then financially disadvantaged. That is our concern.
PN965
But what I am directing you to is this. As I understand it, there are hundreds of employees, there may be thousands, I don't know, but there are hundreds of employees at level 3 beyond the 163 branch managers who got an offer back in July?---Yes.
**** CATHERINE ANNE NOYE XXN MR McDONALD
PN966
The union's concern the next week or next month, some of those employees, and a different class of level 3 employee may receive TEC packaging offers; correct?---No. My concern has always been, and the branch's concern has always been to respond to the members who call in. And in answer to your question, in one of my tables the concern is that you are, for people who want promotion, and so that is people outside of that area, for people who want promotion, they have no other way of getting promotion without signing TEC. That is our major concern.
PN967
Well, you are not answering the question, with respect. I will put it to you specifically.
PN968
MS MALONEY: Well, your Honour, Ms Noye is answering the question, so we take dispute with that.
PN969
MR McDONALD: Clause 6.2.2, which is the exemption provision, if I can put it that way, under the award, now, you make clear in your submissions that it stays the same, except you have varied it with a reference to shift work. So 6.2.2 will now read:
PN970
A staff member who signs a written acceptance of total employment cost remuneration package shall not be covered by this award except as to the provisions contained in the following clauses.
PN971
And then they are listed. And then we get down to shift work. This is on page 2 of the draft order, your Honour, shift work, at the top of the page:
PN972
Shift work - applies to level 3 staff members only.
PN973
Now, you have slotted that in. That is irrelevant to a branch manager of a bank. A level 3 branch manager does not work shift work; correct?---That is right.
**** CATHERINE ANNE NOYE XXN MR McDONALD
PN974
That provision can only have relevance in relation to a level 3 employee who is offered a TEC package and who does work shift work; correct?---Yes.
PN975
MS MALONEY: Your Honour, Ms Noye didn't draft the application, and if that is an issue raised by ANZ we are prepared to address that in submissions, we have no problems. That is not part of Ms Noye's evidence, and I will submit, your Honour, Ms Noye doesn't work in the national office, she didn't draft the application, and I would say it was not within her knowledge of the matter.
PN976
THE SENIOR DEPUTY PRESIDENT: Look, the evidence is relevant, but Ms Noye has made her position clear. I accept that. If Mr McDonald wishes to keep pursuing this line, I am not going to prevent him, but whether we will get a great deal of constructive evidence out of Ms Noye, with the best will in the world, is yet to be established.
PN977
MR McDONALD: What I wanted to put to you is this, Ms Noye. You were here in the Commission at the opening of these proceedings, were you?---No, I wasn't.
PN978
Did you hear what I say?---No, I wasn't.
PN979
All right. Well, at the opening of these proceedings I stood up and put on the record that the bank has not in the past, and has no intention in the future of making an offer of a TEC package to any employee outside the pool of employees who are branch managers and who, on the application of the Hay point system, are rated at level 3. Now, for that commitment that I have placed on the record, goes a long way, does it not, to ameliorating any concerns which the union may have in terms of the potential flow on of TEC packages; would you accept that?---Well, if that was a concern of part of the union, yes, that would allay some of those concerns. But my concern has been the financial disadvantage to the people who have been offered it, and the fact that they have no choice.
**** CATHERINE ANNE NOYE XXN MR McDONALD
PN980
All right. So is it fair to say this. Your concerns - you are sitting in the witness box now - is for those amongst the 163 employees who received an offer in July of 2001, who have a concern about the process and potential financial disadvantage; correct?---It is for those employees and for the employees who are currently sitting at L2, L1, who want to be promoted up through ANZs ranks, it is a concern for them.
PN981
Yes, all right, I understand that, thank you. Now, I have put to you that of the 163 branch managers, level 3 branch managers who were offered a TEC package in July of 2001, 14 of those did not accept the offer, they are not category AA employees. You don't take issue with that?---No, we don't take issue.
PN982
And can I put this to you. The fact that of the pool of 163 there are 14 managers who have elected not to take up the offer, is entirely consistent with it being a voluntary offer; correct?---No, it is not entirely consistent with it being a voluntary offer. I have interviewed many level 3 and cat A managers who had accepted the individual employment contracts. All those that I have interviewed, even if they were not financially disadvantaged, some were not financially disadvantaged, but all were concerned that there was no choice, and if they did not accept the individual employment contract and the associated TEC packaging, that they wouldn't go no further in ANZ, so therefore it is not voluntary, that there is no choice.
PN983
Well, they all accept, and I don't understand you to take issue with this, all the people that you spoke to, the basis of the discussion was this was a promotion opportunity?---No, it wasn't. In fact, most of those people were sitting already in those jobs on salaries, and they were offered TEC packaging, and the district managers were putting enormous pressure on them to sign up to the TEC packaging because they had quotas to fill. So the pressure was coming from all sides, and they all felt that if they did not sign the individual employment contracts and sign up to the TEC packaging, that they would go no further in ANZ, so therefore yes, you can say it is offered, and they don't have to accept it, but if they don't accept it they go no further in ANZ, they are not able to be part of the performance schemes that give them access to more money if they don't sign the packaging. So therefore it is not true to say that there is choice involved. There is no choice involved.
**** CATHERINE ANNE NOYE XXN MR McDONALD
PN984
How many level 3 branch managers are there within the Victorian/Tasmanian region?---I am sorry, I haven't got those figures on me.
PN985
These positions are right round the country, aren't they?---Yes, they are.
PN986
And they are in every state, presumably there wouldn't be more than 35 or 40 in Victoria and Tasmania?---Well, as I said, I haven't got the figures.
PN987
Well, how many did you speak to?---I have spoken - for my statement?
PN988
Yes?---For my statement I spoke to three people who were willing to have their answers recorded. I spoke to many others who were not even willing to have their answers recorded on that basis.
PN989
Well, I am asking you how many level 3 branch managers have you spoken to post July 2001?---Well, at an estimate I would suggest around 30.
PN990
And are they all in Victoria and Tasmania?---I get phone calls from all around the country, I get phone calls from Tasmania, I speak to the organisers who have spoken to those managers, I go and I interview people if they ask me to. Even though I am a branch Assistant Secretary I do a fair degree of organising still.
PN991
Thank you. Well, just stay with the question, if you would. How many level 3 branch managers have you personally spoken to post July 2001, you?---If you are asking me just level 3, I have spoken to a number of cat A. So it is just level 3 you are asking me? Okay. I would suggest level 3 probably 10, of cat A I have spoken to probably a lot more than that, probably 30 or 40.
PN992
When you say cat A, are you saying cat AA?---No, not cat AA, cat A.
**** CATHERINE ANNE NOYE XXN MR McDONALD
PN993
This is where this issue about classification is getting a bit tricky. Let us start at the bottom and move our way up. In July of 2001 there are 163 level 3 branch managers who receive an offer?---Right, yes.
PN994
All right. I am asking you to direct your attention to this question. Of that pool of 163 who received an offer in July 2001, how many had you spoken to since July 2001?---I would suggest around 10.
PN995
Thank you. Now, have you personally had a chance to look at the material which is annexed to Mr Baker's statement, which was provided to the level 3 branch managers at the time the offer went out in July 2001?---No, I haven't.
PN996
No?---No.
PN997
So you don't have a view as to whether or not that information was misleading or not, you just don't know?---No, that was not the basis of what I spoke to the members about.
PN998
I take it you accept at a general level that someone who has reached the position of a branch manager, as a general proposition you would expect that that person was quite capable of making a decision which is in their interests, financial and otherwise; correct?---I would expect, yes.
PN999
In relation to clause 6.3 of the draft order, I will just read it to you, if I may:
PN1000
Acceptance of TEC remuneration package is purely voluntary, and if a staff member declines the offer the decision will not jeopardise their conditions of employment. A staff member's promotional and career prospects with ANZ will not be detrimentally affected if they choose not to accept a package.
**** CATHERINE ANNE NOYE XXN MR McDONALD
PN1001
Now, did you follow that? Now, you would accept that there is presently about 5000 employees who are - I am including the 149 who accepted the offer last July - there is about 5000 employees who are classified A to E within clause 16 of the award?---Yes.
PN1002
And the effect of clause 6.3, is it not - correct me if I am mistaken - but the effect of clause 6.3 is that in relation to any of those existing employees A to E, any of those existing 5000 employees, that would impose upon the bank an obligation that it could not make a promotion offer to, say, someone going from a B to a C, you couldn't do so simply on the basis that the offer was on a TEC package basis?---What is it that you are actually asking me? I mean, it has just been such a long question.
PN1003
What I am asking you is, the effect of clause 6.3 of the union's draft order upon the 5000 or so employees who are presently graded A to E, and who are in receipt of TEC packages, and what I am putting to you is, that as I read clause 6.3, the effect of it would be that the bank could not offer someone who is presently a grade B employee, they couldn't be offered a promotion to grade C on the basis that if you accept this promotion the job is on the basis of a TEC package?---No, I don't accept that.
PN1004
You don't accept that?---You are saying - I am just trying to clarify what it is.
[11.32am]
PN1005
I will hand the witness 6.3. I am sorry, I should have done it at the outset. Just take a moment and read clause 6.3. It is the second sentence:
PN1006
A staff member's promotional and career prospects with ANZ will not be detrimentally affected if they choose not to accept a package.
**** CATHERINE ANNE NOYE XXN MR McDONALD
PN1007
?---What we are saying, what all we have ever been asking for is that there be choice. So we are not in any way trying to say that offers can't be made to staff. All we are saying is that there should be choice involved, whether they have TEC packaging or salaried packaging, and that they should be not financially disadvantaged, that is all we are asking.
PN1008
You see, you no doubt have seen Mr Baker's evidence, that since 1994 the practice within the bank since 1994 has been that all appointment and promotion within group 4, that is A through to E, it has all been on the basis of the jobs offered as a TEC package, but since 1994 there hasn't been the choice which you now seek through clause 6.3. Have you seen that evidence from Mr Baker?---Yes, I have.
PN1009
Right. So we are at one, that that is the effect of clause 6.3, the bank would have to depart from what, on Mr Baker's evidence, has been the practice since 1994, of making promotion and appointment within group 4 on the basis of package?---People who are in group 4, cat A to cat E, and have nearly always been on some sort of packaging arrangement, now, other than the lower cat A, once - so what you have asked me is, the effect of this clause would be that you could no longer offer packaging; is that what you are asking me?
PN1010
No longer offer simply packaging. Baker's evidence is, look, since 1994 what the union is complaining about has been what has happened. If you are going from a B to a C, the job is, here is the promotion and it is on the basis of a package, you don't have a choice. That is what has been the practice since 1994. And what I am putting to you is that the union, through its application, is seeking to turn that on its head?---No. The union, through its application, is trying to give people who are currently on L2, L3, choice about whether they want to have the TEC packaging, and if that - because at the moment as it currently stands, jobs are attached to packaging. And as I have shown in my table, people take those jobs, are financially disadvantaged and have no choice. That is the basis of our application. It is not about the packaging itself. We have no problem with people on packaging if they are not disadvantaged, but what we have a problem with is people who are offered only packaging that actually disadvantages them, and they have to make the choice between financial disadvantage or promotional prospects.
**** CATHERINE ANNE NOYE XXN MR McDONALD
PN1011
The union's concern is not about those who are presently group 4 employees, the union's concern is those who are outside group 4, who are in the pre-management classifications and who may be being offered a position within group 4. Is that a fair summary of your evidence?---Well, I am saying I can't tell you what the rest of the application is about. My statement was about the people who were currently at L2 or L3 who were offered TEC packaging.
PN1012
All right. Well, to the extent that you are able to give evidence about this matter from where you are sitting, it is not part of the union's desire or motivation to overturn whatever practices have subsisted for existing group 4 employees classified at A to E since 1994?
PN1013
MS MALONEY: Your Honour, the question has been asked and answered.
PN1014
THE SENIOR DEPUTY PRESIDENT: It has, yes?---Look, I actually don't know what else I can say about this other than that my concern and the branch's concern has been, and the basis of my statement has been with the offer and acceptance of TEC packaging being based on a position, and the staff member has to make the decision to either accept the package as is, and be disadvantaged, or don't take the job.
PN1015
MR McDONALD: All right. And your evidence is confined to the position of L2 and L3 employees?---Yes.
PN1016
Now, look at the document you have got in front of you there and have a look at clause 6.4. Have you still got the draft order there?---Yes, that is right.
PN1017
Just take a moment to have a look at that. In relation to the offering of total employment cost remuneration packages to level 3 staff members, the following conditions shall apply. Now, I want to ask you this, and you have got details, provisions there in relation to level 3 staff members. What is it about a level 3 employee which justifies that detailed prescription which the union does not seek to extend to people who are on TEC packages, the thousands of people on TEC packages who are presently classified at A through to E? Do you follow my question?---Yes, I think I am.
**** CATHERINE ANNE NOYE XXN MR McDONALD
PN1018
Well, the question I am putting is this. There is thousands of employees who are on TEC packages?---Yes.
PN1019
A through to E, right, they are group 4 employees?---Yes.
PN1020
At any time any one of those employees can be offered a promotion on the basis of a TEC package?---Yes.
PN1021
Now, you haven't sought in clause 6.4 to put any restrictions on that offer. Clause 6.4 is solely in relation to the offer of a package to a level 3 staff member. So I am asking you this; what is it about a level 3 staff member receiving a TEC package which justifies all of this detailed prescription which the union doesn't seek to apply to the other 95 per cent?---Well, I think the thing about the level 3 employees is, they are being offered a cat AA which financially disadvantages them, and if you offer them a job on the basis that they sign the TEC at a cat AA, if they had have stayed on L3 on a salary and got the payments that they would have been entitled to, they would not be financially disadvantaged. I think that is the basis of our whole argument.
PN1022
I see, thank you. Just have a look at this please, if you would. I am handing the witness an extract from the current certified agreement, clause 7.6, and I will give my friend a copy. I am happy to hand up the same page for the Commission, I am sorry.
PN1023
THE SENIOR DEPUTY PRESIDENT: Yes, it would be helpful, Mr McDonald.
PN1024
MR McDONALD: So can I just direct your attention there to clause 7.6. These are the provisions in the present certified agreement, commitments regarding TEC packaging, and you will see ANZ makes the following commitments to TEC package staff. And bullet point 1:
**** CATHERINE ANNE NOYE XXN MR McDONALD
PN1025
No staff member will be financially disadvantaged by moving to TEC packaging.
PN1026
So that is one of the issues obviously which was included in the certified agreement part of the negotiations pre August 1998; correct?---Yes.
PN1027
And no doubt the union consulted with its membership before seeking an incorporation of that provision into the award?---Yes.
PN1028
And the same with bullet point number 3:
PN1029
Staff employed or promoted following the certification of this agreement who accept TEC packaging will not be entitled to opt back to the award provisions.
PN1030
Again, that is something that would have reflected consultation with the membership; correct?---Yes.
PN1031
Thank you. Now, that commitment in clause 7.6, that applies to anyone who is a TEC package staff, so that will apply, in its terms it applies to the 149 employees post July 2001, who are level 3 branch managers who have accepted TEC packages; correct?---No. Well, it should apply, but I think the basis is that it isn't applying, is they are actually being financially disadvantaged.
PN1032
Well, I want to take that up with you, if I may. If the union considers that people are being financially disadvantaged, why haven't you simply gone along, knocked on the door of the bank and said, look, here is clause 7.6 of the certified agreement, here is your commitment, here is this employee, this is what they were receiving, and this is what they are getting now, and what are you going to do about the difference? You have never done that, have you?---Well, I can tell you what we do at the branch level.
**** CATHERINE ANNE NOYE XXN MR McDONALD
PN1033
Just answer the question?---I am answering the question.
PN1034
Well, the question is, you have never gone to ANZ management with a complaint about a level 3 employee you claim is being financially disadvantaged, and sought to invoke clause 7.6 of the certified agreement; you haven't, have you?---Well, the dispute - - -
PN1035
The answer is no?---You are not letting me answer.
PN1036
MS MALONEY: Could he let the witness answer.
PN1037
THE SENIOR DEPUTY PRESIDENT: The answer is yes or no.
PN1038
MR McDONALD: What is the answer, yes or no?---Well, I personally haven't, but the branch does not take those disputes. The dispute resolution procedure, as you see as it is stated in the agreement and the award, is that it goes to national office once it goes past the state, so I would not do those things.
PN1039
So, again, are you unaware, are you not able to give any evidence to assist the Commission on this point, as to whether or not anyone from the union has taken the matter up under 7.6?---I can't. But I can tell you why I personally haven't taken on the cases. I personally haven't taken on the cases because the employees who I spoke to had all signed and who were all fearful, and would not allow me to even name them. So it is pretty hard to progress a dispute when I can't name them.
PN1040
Well, it is pretty hard for the bank to respond under clause 7.6 if you won't say, here is the employee, this is what they were getting before, and this is what they are getting now; isn't that right?
**** CATHERINE ANNE NOYE XXN MR McDONALD
PN1041
MS MALONEY: Your Honour, I am not aware that is a question.
PN1042
MR McDONALD: But that is so, isn't it? You would accept, would you not, that the bank can hardly respond under clause 7.6 if you don't provide the bank with the particular details of the particular individual; do you accept that?---I do. But at the same time I need to be able to say this is the person. And I can't do that when they have no choice as to whether or not as to sign it, and when they then are fearful of progressing anything.
PN1043
Yes, very well. You are not in a position to challenge the evidence that Mr Baker has given, that the decision of the bank to offer the TEC packaging to the 163 level 3 branch managers in July 2001 was in part in response to the expressed desire of a number of those branch managers to access salary packaging?---Well, I am not in a position to comment on that.
PN1044
No. Now, you have given evidence about the issue of financial disadvantage, and your evidence is that, I think it was 25 July you spoke to two members?---Two members.
PN1045
And you had a meeting with them and spoke to them about their particular circumstances?---That is right.
PN1046
Now, either arising out of those discussions or independent of those discussions, have you achieved an understanding of the way in which the TEC packaging operates?---Well, I have only got a rudimentary understanding obviously. I basically put down what the figures that those members gave me.
PN1047
All right. Are you familiar with the long term incentive scheme which operates in respect of TEC packaged employees?---Not particularly, no.
PN1048
Well, it is common within the finance industry, and is the case with the ANZ, that employees on salary packages have access to share options?---Yes.
**** CATHERINE ANNE NOYE XXN MR McDONALD
PN1049
And the long term incentive scheme, you understand it to be a share option scheme?---Well, all I understood was there was shares offered with the TEC.
PN1050
A share options scheme?---Yes, that is right.
PN1051
Yes, all right. Now, did either of the two individuals that you spoke to on 25 July, did they give you any details about their participation in the ANZ share options scheme as a packaged employee?---No, they didn't. One, I think, who was already in L3, I think had maybe mentioned the share option scheme because he was already sitting in an L3 position, the other one was an L2 and was just offered the position with the TEC. He didn't mention the share option, I didn't ask the question.
PN1052
I am sorry, I am not talking about the 750 share options which were offered as part of the July 21 option, no, put a red line right through that?---Sorry. Okay. Sorry, I misunderstood.
PN1053
I am drawing your attention to the long term incentive scheme which is a share option scheme which packaged employees are able to participate in. Did either of those individuals inform you of that?---No, they didn't.
PN1054
No. If I put to you and informed you that someone who is an AA employee, if rated at the top of the range in terms of their performance assessment, could receive share options to the value of $11,400 in one financial year, that would come as a complete surprise to you?---It wouldn't come - it would. But what I would say to that is, that you are saying that is what they can earn.
PN1055
That is what they can get?---And the reality is that most of these people don't get anything more than a 3B if they are lucky. So that would not allow them to get that. But no, we didn't discuss the share options scheme.
**** CATHERINE ANNE NOYE XXN MR McDONALD
PN1056
All right. And are you familiar with the operation of what is called the ANZERS, that is A-N-Z-E-R-S, bonus scheme?---I know there is some sort of bonus scheme, I am not sure what it is called.
PN1057
And that is a bonus scheme which is available for employees who take up the TEC package?---I know there is some sort of performance bonus scheme, yes.
PN1058
And the way in which that scheme operates is that depending on the payment under the scheme is dependent upon performance assessment; correct?---Yes.
PN1059
And if I informed you that someone rated at the top of the range could get up to about $7000, would you take issue with that, or you just don't know?---I don't know, but I wouldn't be surprised if they could, and, again, I would say at the top of the range, and salaried employees already get access to PAR, which is bonuses through that. So there is schemes for packaged employees and there is schemes for salaried employees.
PN1060
And in addition to the ANZERS bonus, for packaged employees there is a bonus system which, depending on the rating they get, an amount is actually added on to their base salary. So there is the bonus system which actually delivers you, here is a pool of money on a one off basis, but in addition there is a bonus system for packaged employees which - I will give a specific example - AA employee, Mr Baker's evidence is, the minimum salary point, entry point, is 49,100. Under the bonus system, if you are assessed at the top of the range, you can get up to 10 per cent of your base salary augmented, so $4910 added on to your base entry point. Are you familiar with that?---As I said, there is bonus schemes for packaged employees, and there is bonus schemes for salaried employees. And I think in my statement I said that these people had been accessing performance bonuses on salary as well, so I wouldn't be surprised if there is bonus systems for package.
PN1061
You spoke to these people on 25 July?---Yes.
**** CATHERINE ANNE NOYE XXN MR McDONALD
PN1062
And the offers which went out in July last year, the offers which went out last year was 21 July, and it was to be accepted, I think, a couple of weeks thereafter, sometime early August, 7 August, thereabouts?---Yes.
PN1063
Now, would I be correct in assuming that the two individuals that you spoke to on 25 July had not been assessed for the purposes of the long term incentive and the ANZERS bonus and the other bonus that I have referred to?---We didn't talk about that. But what I can tell you is, one of the employees had only just recently signed the employment TEC, and the other one had been on the TEC and had not received any bonus. He didn't mention it in - I asked him what he had received, and he did not receive any bonus.
PN1064
But he may not have been assessed for the bonus at that point?---I can't answer that.
PN1065
You don't know?---I can't answer that.
PN1066
You would accept, would you not, that the way the TEC packaging remuneration works, is that the level of remuneration which someone receives is significantly influenced by their performance, their work performance, how that is assessed; correct?---That is right.
PN1067
It feeds directly into those - - -?---So do the salaried employees, yes.
PN1068
Yes. But to a much greater extent, Ms Noye, if you are a packaged employee, there is a much greater extent?---Well, you are talking about bonuses. So bonuses, whether you are salaried or packaged, are based on assessment and performance levels, so you can earn bonuses or you may not earn bonuses.
PN1069
Yes. But if you are a level 3 employee, your recurrent salary is referenced by the award. If you are a level 3, you are at a certain level, aren't you?---That is right. You also can access performance bonuses.
**** CATHERINE ANNE NOYE XXN MR McDONALD
PN1070
Well, let us focus on the differences. This gentleman here has been making audible remarks which I have heard in response to questions, which I object to, and he is sitting there sniggering. I don't take kindly to smart alec behaviour in the Commission, and it has been going on for some time. I would ask the gentleman to either be quiet or get out of the Commission.
PN1071
THE SENIOR DEPUTY PRESIDENT: On the assumption that what you are saying is correct, then I agree with what you say. There is a choice to be made, either to behave properly, or not to bother the Commission and the parties before it.
PN1072
MR McDONALD: Thank you. I will say no more.
PN1073
Now, if I can return to the issue of the differences. I was directing a comparison in terms of a level 3 employee, their salary is set on a recurrent level at their award level?---Yes.
PN1074
What I want to put to you is, that the way the bonus system operates in respect of an AA employee, is that there is a capacity for their bonus payment to be built into their base salary and operate on a recurrent basis?---Yes.
PN1075
So in the example of someone who has got an entry level at 49,100 as an AA, that recurrent entitlement will be increased as a result of the operation of the bonus system; correct?---That is true. But that is also correct of salaried employees, because that is how they move from minimum proficient to maximum.
PN1076
But if you are at the top level of level 3, there is nowhere to go?---No. But they also have access to sales force, because when you are on L2 or L3 you are in a sales area usually, so you have access outside of the award and the agreement to sales force, which is the same.
**** CATHERINE ANNE NOYE XXN MR McDONALD
PN1077
Well, you will get the other bonus. That is the ANZERS type bonus that we referred to earlier. But the pot of money, you can get the pot of money; correct?---Yes.
PN1078
So we are at one, that both the level 3 and the AA can get the ANZERS type bonus and pot of money?---Yes.
PN1079
The level 3 doesn't have access to a bonus in the form of increase in recurrent minimum entitlement?---Well, they do through a PAR.
PN1080
Which is capped at what?---Well, whatever they are able through their PAR, they are assessed, and then that goes on to their salary, to their base salary.
PN1081
We will come back to that in a moment. We are in agreement, are we not, that the level 3 employee does not have access to the long term incentive of the share option scheme, it is only available to - - -?---No. That is only available to packaged.
PN1082
Thank you. Well, that being the case, you would agree, would you not, that you are not in a position to make an assessment of whether or not someone has been financially disadvantaged by transferring from a level 3 to an AA until they have been actually assessed for the purposes of the various bonus entitlements which are part of their salary package. You would have to agree with that, wouldn't you?---Well, what I can say to you is, I put down what the staff members told me, that is all I can comment on.
PN1083
Yes. And you haven't taken into account, for instance, a long term incentive payment. Let us say one of the people you spoke to was a star performer, and they rated right at the top, and they picked up share options to the value of $10,000. Now, you haven't taken that into account because you weren't told about it?---Well, I can tell you that one of the people I interviewed was a very good performer and had been receiving bonuses that I hadn't put in here
**** CATHERINE ANNE NOYE XXN MR McDONALD
because they were not in her regular wage, but she got bonuses through sales force that was quite substantial. I didn't put those into my figures because that is not something that is variable, it depends on her performance. I was putting in what she got - - -
PN1084
Yes. What I am putting to you is, you are not comparing apples with apples, are you? When you seek to compare on the question of financially disadvantage, if you seek to compare a level 3 employee and their award entitlement with the total remuneration available to a packaged employee under a salary package, it is not apples with apples, because the salary package has the potential to deliver payments, assessment, performance based payments which aren't available to the level 3 employee; that is correct, isn't it?---Well, I can tell you that all I have got here is what the staff told me. So they told me what they were earning, they told me what they were earning prior to going onto TEC.
PN1085
Don't you want to answer the question? It is correct that it is not apples with apples; do you accept that?---Well, packaging is not the same as salary.
PN1086
And your position is, you are using your evidence to assert a position of financially disadvantage. I am putting to you that you can't draw any conclusion as to whether or not an employee is financially disadvantaged until you get to the end of the assessment period and it is actually determined, what have they got in their pocket?---I can't assess that personally. The employees themselves though I think are in a position to assess it personally, and they are the ones who gave me the figures.
PN1087
Yes. I have got nothing further.
PN1088
PN1089
MS MALONEY: Ms Noye, I have just got a few questions. Mr McDonald raised with you the issue of, or one of the issues was raised in response to one of his questions, was the issue of sales force payments; is that correct?---Yes.
**** CATHERINE ANNE NOYE RXN MS MALONEY
PN1090
And that you didn't include them because they are variable?---They are variable.
PN1091
Who are those sales force payments payable to?---To people in the sales areas. It is a bonus system.
PN1092
Are they packaged staff?---No. They are sales staff.
PN1093
So they are non TEC staff?---Non TEC.
PN1094
Right. So you haven't actually included all - they weren't in the figures for the non TEC staff?---No.
PN1095
So if those figures which were variable had been included in the comparison, what impact would that have had on the comparison?---Well, one of the people that I interviewed, and I remember this specifically because she said she was a 1A, and I had never met anybody who was a 1A, so she had got quite large bonuses. I think she mentioned at one stage $8000.
PN1096
But if I just take you to your supplementary statement and just the table in your supplementary statement, appendix A?---Yes.
PN1097
Just in terms of by not including the sales force payments, you haven't included those in that table?---No.
PN1098
Right. And if they had been included, based on your evidence, they would have been included for the non packaged staff?---That is right.
PN1099
So by not including them, what impact would that have had on that comparison between what is called packaged, in this case cat A, and non packaged?---If I had have included the bonuses it would have moved the income that they had, not the guarantee, but the variable up substantially.
**** CATHERINE ANNE NOYE RXN MS MALONEY
PN1100
For who?---for the non packaged.
PN1101
Thank you. Ms Noye, as your statement says, or you indicated that you are the Assistant Secretary of the Victorian/Tas Branch, and prior to that you were an organiser with the union. Is it correct to say that when an organiser in the branch - - -
PN1102
MR McDONALD: Don't lead the witness please.
PN1103
MS MALONEY: In terms of your organising capacity in the branch, what areas of the finance sector industry did you organise in?---ANZ, National Australia Bank and Bank of Melbourne.
PN1104
So you organised beyond the ANZ?---Yes, I did.
PN1105
And were there any particular areas within those banks that you organised?---I largely organised in the retail area, which is the branch network, and I also did work in some of what we call centralised sites, which is sites like 452 Flinders Street.
PN1106
Now, Mr McDonald has referred to what are called category AA several times, and I think you may have also referred to it yourself a couple of times?---Yes.
PN1107
And Mr McDonald, I don't know if he referred you to the award.
PN1108
THE SENIOR DEPUTY PRESIDENT: The award was referred to at one point?---Yes.
**** CATHERINE ANNE NOYE RXN MS MALONEY
PN1109
MS MALONEY: Yes. But he took it back, did he? If I could just provide, your Honour - I have a copy of the award. I will show Mr McDonald. If I can take you, Ms Noye, to clause 16 of the award, and if you could have a look at that clause again. Would you be able to indicate for the Commission where the salary rate for category AA is located?---It is not there.
PN1110
It is not there. Now, your Honour, at the front of that document is a copy of the enterprise agreement. I will show Mr McDonald. Your Honour, I will provide a copy of the agreement. I am sure there is probably going to be copies tendered during the course of these. Your Honour, I am showing Ms Noye clause 15 of the ANZ FSU Enterprise Agreement.
PN1111
Ms Noye, could you indicate to the Commission where the salary rate for category AA is located in that clause?---It is not there.
PN1112
Now, Ms Noye, Mr McDonald asked you how many of the employees offered a TEC package you have spoken to, and you said approximately about 10?---Yes.
PN1113
Are you the only person in the branch who has spoken to members concerning this matter?---No, not at all.
PN1114
So there are other organisers, or the organisers have spoken to - - -?---Yes. We have a membership services team, which is a phone team who take complaints, so they have spoken to others, and organisers when they are out in their areas have spoken to others as well.
PN1115
And based on that, how many people do you think the branch would have spoken to in respect to employees who were offered the TEC package?---Just at level 3?
**** CATHERINE ANNE NOYE RXN MS MALONEY
PN1116
Well, your answer with respect was a level 3?---Yes.
PN1117
Yes, on the same basis?---So I would suggest around 30.
PN1118
Thank you. Now, in respect to, Mr McDonald asked you questions about the enterprise agreement and negotiation of the enterprise agreement, and he has taken you to clause 7.6 of the agreement. Do you have that there?---Yes.
PN1119
Thank you. Can I refer you to the fourth dot point, the star dot point commences with the word, the total pool?---Yes.
PN1120
Reference is made there to group 4 managers on TEC?---Yes.
PN1121
Could you explain, what is the reason why group 4 managers is referred to in clause 7.6 of the agreement in respect to TEC?---Because group 4 managers are the category A to E, and they are the ones who were, some of them were on TEC.
PN1122
Right. So does clause 7.6, as negotiating the 1998 enterprise agreement, apply beyond group 4 managers?---No, it doesn't.
PN1123
Now, Mr McDonald stated that you may not be in a position to judge whether someone would be financially disadvantaged by going onto TEC, but you have put in your evidence that the statements you have filed is based on the information that is provided to you by the members you have spoken to?---That is right.
PN1124
And you have confirmed that the figures that you have put into your statement are correct?---Well, they are as they were told to me.
**** CATHERINE ANNE NOYE RXN MS MALONEY
PN1125
As they were told to you?---Yes.
PN1126
And in those discussions, you indicated in your evidence that you didn't discuss the issue of bonuses?---No, I didn't.
PN1127
That was not part of your - - -?---No.
PN1128
And just following on from that, if it is put that you weren't in a position to conclude that the members were financially disadvantaged, how did you come to that view?---Well, I went out to visit them on the basis that they were financially disadvantaged. They had rung the union office and they had made a series of complaints, and they were wondering what their rights and entitlements were, so we had the meeting on that basis. So I came in response to them saying that they were disadvantaged.
PN1129
Right. Now, one more question I wish to ask. Mr McDonald has put to you that if ANZ made a commitment not to extend TEC packaging to other staff, would that reduce your concerns, so that if they made a commitment, given your experience as a union official with the Finance Sector Union, and your experience in dealing with ANZ in particular, what comfort, if I could say, would you take in respect to any such commitment that is given by ANZ?---Well, I think as I stated before, my concern is that people who want promotion have the choice, have only one choice then. It is about going, taking the promotion at what is offered, and if they are financially disadvantaged they just have to make that choice, and that is my concern.
PN1130
Yes. But as I understand what - - -
PN1131
MR McDONALD: Don't lead the witness. Just answer the question.
PN1132
MS MALONEY: But if the ANZ gave you a commitment to not extend offers of TEC - - -
**** CATHERINE ANNE NOYE RXN MS MALONEY
PN1133
MR McDONALD: I object to this.
PN1134
MS MALONEY: Well, your Honour, it arises from his cross-examination. He has given a commitment.
PN1135
THE SENIOR DEPUTY PRESIDENT: I will hear his objection.
PN1136
MR McDONALD: I object to the form of the questions. It is obvious what the union's advocate is seeking to do. It is seeking to elicit an answer in re-examination other than the answer which has just been given. The question has been asked.
PN1137
THE SENIOR DEPUTY PRESIDENT: It is the purpose of re-examination. You might bear in mind the form of the question, Ms Maloney.
PN1138
MR McDONALD: Yes. But it is entirely leading, the way it has been put.
PN1139
MS MALONEY: All right, your Honour, I will reformulate the question.
PN1140
Ms Noye, if ANZ promised to do X, would you be satisfied with what they put to you?---Look, in here it has got no staff member will be financially disadvantaged, and this is in the agreement. That is happening now. So I would say probably I would not be - I personally would probably not be comforted. But it doesn't matter what I feel.
PN1141
Thank you, Ms Noye.
PN1142
PN1143
THE SENIOR DEPUTY PRESIDENT: And this is the hiatus that you - - -
PN1144
MR McDONALD: This is. So if Mr Beck can be here at 2 o'clock. There are a number of matters that Ms Noye wasn't able really to deal with, that I will have to take up with Mr Beck, so I probably would review my estimates of time. I think it will probably be closer to 3.30 that we will be finished with him. I am conscious of the time, so we will have Mr Baker here ready to go immediately after the conclusion of his evidence.
PN1145
THE SENIOR DEPUTY PRESIDENT: Yes. Well, I must say, and it is incumbent on me to say that the estimates of time given so far by the advocates in this case have been accurate. So what we have to do now is adjourn until 2 o'clock. I adjourn these proceedings until 2 pm.
LUNCHEON ADJOURNMENT [12.13pm]
RESUMED [2.00pm]
PN1146
THE SENIOR DEPUTY PRESIDENT: Ms Maloney?
PN1147
MS MALONEY: Your Honour, before I call Mr Beck, I would just like to raise a point. Your Honour, just in respect to this morning's proceedings, we were very surprised by what Mr McDonald raised in terms of his allegations as to the behaviour of Mr Schroeder during the course of those proceedings. At that time we let it go. However, your Honour, at lunchtime I had the opportunity to speak to Mr Schroeder, and, your Honour, he assured me that he had not behaved as alleged by Mr McDonald. We are not asking the Commission to do anything, it is just that we don't want to take it any further, we just wanted to bring that to your Honour's attention.
PN1148
THE SENIOR DEPUTY PRESIDENT: Very well, Ms Maloney.
PN1149
PN1150
MS MALONEY: Would you please state your full name and address for the record please?---Anthony Joseph Beck, 341 Queen Street, Melbourne.
PN1151
Mr Beck, could you advise us what your occupation is?---I am the National Secretary of the Finance Sector Union of Australia.
PN1152
Mr Beck, have you prepared a witness statement for these proceedings?---I have.
PN1153
Do you have a copy of that statement with you?---I do.
PN1154
Are the contents of that statement correct, true and correct?---They are correct.
PN1155
Your Honour, I tender that witness statement, but I do note it was filed with the submissions of the FSU on 28 August.
PN1156
THE SENIOR DEPUTY PRESIDENT: Any objection, Mr McDonald?
PN1157
PN1158
MS MALONEY: Mr Beck, have you prepared another statement subsequent to that original statement?---I have.
PN1159
Do you have a copy of that statement with you?---I do.
**** ANTHONY JOSEPH BECK XN MS MALONEY
PN1160
Are the contents of that statement also true and correct?---They are.
PN1161
Your Honour, I wish to tender a copy of that statement, and I also note that that is filed with the material that was filed yesterday.
PN1162
THE SENIOR DEPUTY PRESIDENT: Yes. Any objection, Mr McDonald?
PN1163
PN1164
MS MALONEY: Now, Mr Beck, can I just take you to your witness statement, exhibit M12, which is your first witness statement?---Yes.
PN1165
And if I could take you to paragraph 25, page 6?---Yes.
PN1166
In that paragraph you refer to the fact, and you state that the union wrote to ANZ on 18 July 2001. Now, it is quite unusual for the union to write to employers, so what is so significant about the union writing to ANZ on 18 July 2001?---Well, on this occasion I addressed my letter to the chief executive, Mr McFarlane, and did that on the basis that it was a matter of substance in the normal course of events, matters arising between the FSU and the ANZ. I would normally correspond with the head of employee relations, but this was a matter that was significant, drawn to my attention, on that occasion I wrote to Mr McFarlane.
**** ANTHONY JOSEPH BECK XN MS MALONEY
PN1167
And could you explain to the Commission, or take the Commission to the letter that you forwarded to Mr McFarlane?---Yes. It is attached to my statement, and I guess in essence, and in the time that Mr McFarlane has been the chief executive I have probably only written to him on two or three occasions, and they have been matters of absolute substance, and in my mind this event, this grievance that came before the union was a matter that required his attention. The tenor of the letter is such, you know, we were quite surprised that our two members concerned, having satisfied all the criteria and having passed the necessary steps to be promoted to a cat A management position, were being denied that on the basis of their refusal to sign individual contracts which were on offer at that time. And the tenor of my letter, I make it quite clear that I assume this is an unfortunate situation, that it must be an oversight, there must be some misunderstanding, that the normal checks and balances that apply in ANZs procedures for promotion have somehow been overlooked. At the time we were in a dispute with the ANZ, and I assumed that the tensions between the two entities were a cause of some misunderstanding, and I sought his intervention.
PN1168
And did the FSU receive a response to that letter?---It received a reply from Christopher Baker, who was the head of workplace strategy, and the reply is also attached. His letter came back on 31 July 2001.
PN1169
And what was your reaction to Mr Baker's reply?---Well, again, we were shocked and surprised because for the first time I became aware the bank were formally indicating that they were requiring as a prerequisite for promotion to a group 4 position, the acceptance of the TEC packaging as well as the individual contracts.
PN1170
And in that regard you are referring to the third paragraph of the letter?---Yes.
PN1171
And had you been advised of that prior to that date, 31 July 2001?---No.
PN1172
So it is the first time?---It is the first time I became aware that the bank were applying and making a prerequisite for promotion to a group 4 position either TEC packaging or the individual contracts.
**** ANTHONY JOSEPH BECK XN MS MALONEY
PN1173
Thank you, Mr Beck. No more questions.
PN1174
PN1175
MR McDONALD: Mr Beck, I wonder if you could just briefly give an overview of the various positions you have held with the union since you commenced work in 1982?---Branch Organiser, National Industrial Officer, Branch Assistant Secretary, National Assistant Secretary and National Secretary.
PN1176
Thank you. Now, throughout the period from 1994 through to the middle of 2001, what positions did you hold?---Effectively National Secretary, Joint National Secretary, or National Secretary.
PN1177
All right. Can I ask you this. Were you involved in your capacity of holding one or more of those positions in the discussions with the ANZ which preceded the memorandum of understanding which was entered into in 1994? You know the document I am referring to?---I do. I was involved along with others.
PN1178
And at that time what position did you hold then?---Joint National Secretary.
PN1179
And did your involvement actually take the form of participating in meetings with representatives of the ANZ, or receiving reports from those who had?---Both, a combination of both.
PN1180
All right. Could I just ask you please to have a look at the memorandum of understanding. I have got a copy here I will hand to you. This document has been annexed to the union's submissions. If you just take a moment to have a look at that please. Now, you will see in clause 4 of the, if you just take a moment to have a look at that, there is a heading, commitments regarding packaging, and there is at 4.1:
**** ANTHONY JOSEPH BECK XXN MR McDONALD
PN1181
No managers will be financially disadvantaged by accepting TEC packaging.
PN1182
Now, I want you to confine yourself, if you would, to the period 1994 through to July of 2001, or the middle of 2001. Are you aware of any occasion throughout that period where circumstances arose which you considered constituted a breach of that undertaking or that commitment?---Could you just re-state the question for me please; before '94 to 2001?
PN1183
To mid 2001, so June of 2001, were you aware of any circumstance which you considered constituted a breach of that commitment?---I can't recall an instance.
PN1184
All right. And in relation to clause 5, opting back to award conditions, do you have any knowledge of any managers who throughout that period, 1994 through to the middle of 2001, sought to opt back to the award conditions?---No personal knowledge.
PN1185
All right. Now, do you recall that in January of 1995, the then award, which was the 1991 award, was varied by consent, and a dispute settling procedure was introduced into the award, or clause 48 was varied to introduce a dispute settling procedure relating to TEC packaging?---Is your question, do I personally recall it?
PN1186
Yes?---To be honest, I don't.
PN1187
All right. Well, it is in the evidence and it is attached to the union's submission that there was a variation, so if you will take me at face value that the clause 48 was varied in January '95, and there was a procedure inserted in clause 48 which provided for a manager who had a dispute about TEC packaging at the end of the day, to take the matter to the Commission. Throughout the period from January '95 through to August '98, when the new award came in, do you have any recollection of any manager taking up that option of referring a dispute to the Commission?---I personally don't, but that wouldn't be a surprise.
**** ANTHONY JOSEPH BECK XXN MR McDONALD
PN1188
Well, if I put it to you that from the bank's end we looked into this issue, we haven't been able to find any record of any occasion on which clause 48 was invoked, you wouldn't take issue with that; you just don't know?---Well, my personal recall is, I don't recall that provision having been exercised. I recall the intent, the purpose and the logic behind it, but I don't have any personal recall of that being invoked.
PN1189
All right. Were you involved in the negotiations which took place throughout 1998, leading up to the making of the 1998 award and certified agreement?---Well, I was involved, but not directly. I was responsible as National Secretary for the conduct of negotiations, and I was aware generally of our principal strategy and I was kept appraised of developments.
PN1190
As National Secretary, would it be fair to say that you had an overview role in terms of the issues which were on the union agenda for those negotiations?---Yes.
PN1191
And you had a role in actually identifying what those issues would be?---Not singly, but as National Secretary working with my national executive, we were responsible for all our bargaining strategies and receiving reports, and being aware and attentive to the progress of those negotiations, and ensuring that they were executed properly and appropriately.
PN1192
All right. The 1998 award and the agreement, certified agreement, neither of those instruments contains a dispute settling procedure of the type which was previously in clause 48 specifically in relation to TEC packaging. I want to put this to you, Mr Beck. The absence of such a provision was consistent with the fact that between 1994 and the middle of 98 there weren't any industrial issues relating to TEC packaging, there was a bit of a dead letter as an industrial issue?---Well, look, I can understand what you are saying.
**** ANTHONY JOSEPH BECK XXN MR McDONALD
PN1193
Do you accept that?---No, I don't accept that necessarily. The fact that that grievance, that specific board of reference may not have been activated does not indicate in itself no disputes or grievances around TEC packaging. We handle many hundreds of disputes on behalf of members in all states across all enterprises during the course of a year. Secondly, in terms of negotiations of an enterprise agreement, I am not sure, I frankly don't understand what was allowable and what was not allowable. That may or may not have a bearing on the nature of the actual award. But also the process of - - -
PN1194
I don't think - we did have them in '98, you are right, yes?---That is right. Let me finish. The other thing is, the process of negotiation is often about give and take, there is a whole range of issues that are put forward, and they are complex, and some issues assume higher importance for us as the employer, as you would be aware, and so on balance we seek to reach an agreement, which on balance we think protects and advances our members welfare.
PN1195
Yes. Well, I want to put it to you squarely, Mr Beck, that that issue wasn't even on the agenda, it wasn't something which was on the agenda and was then traded off. I want to put it to you, the issue of grievance procedures, dispute procedures and the like in relation to TEC packaging, it was a non issue in the negotiations?---Well, I just answer it the way I did previously, which is to simply say that in negotiations there is a complex sorting process of a whole range of issues that we need to go through, which the employer needs to go through, and there is a very vigorous exchange of views, and at the end of the day my national executive and members, more importantly, form a valued judgment about the total context of the subsequent agreement that comes into play.
PN1196
All right. And beyond that you can't recall the detail of what the position may have been from the union's perspective in relation to dispute procedures and TEC packages?---In 1998? I don't recall the intricacy of the exchange around that at the time, no.
PN1197
Now, you became aware some time shortly after 23 July 2001, that the bank had made offers to some 163 level 3 branch managers, offers of TEC packages; correct?---Yes.
**** ANTHONY JOSEPH BECK XXN MR McDONALD
PN1198
And it is fair to say that the impetus for the union's application which is before the Commission now, the impetus for that application was that offer?---Yes.
PN1199
And the form of the draft order which has been put together has been put together specifically with those circumstances in mind?---Yes. I haven't got the draft order in front of me, it is some time since I have sighted it, but the general proposition was to protect the voluntary nature and the extent to which TEC packaging would be offered.
PN1200
Perhaps I will give you the draft order, to be fair, so you have actually got it in front of you?---Thank you.
PN1201
And that last question I put to you, in terms of the form of the draft order, I specifically had in mind clause 6.4, where you will see there is specific provisions in relation to the level 3 classification being offered, level 3 staff members being offered TEC. Now, is it part of the union's motivation in bringing this application - sorry, I will withdraw that. In the final part of your statement, paragraph 31 of your statement of 28 August, in the second sentence you refer to:
PN1202
The approach that has been adopted by the ANZ may facilitate other employers within the industry using the TEC or similar packaging arrangements as a means of opting out of the provisions of collective industrial instruments.
PN1203
Now, I appreciate that you are referring there to other employers, but can I ask you this. Is it part of the union's concern in bringing this application that the ANZ Bank may seek to extend the offer of TEC packages to other groupings of level 3 employees outside of the branch manager, level 3; is that one of the union's concerns?---Yes. Well, I must, like, the genesis of TEC packaging was that, to the best of my recall, this is firmly my view, that it applied to cat A to cat E group 4 employees.
**** ANTHONY JOSEPH BECK XXN MR McDONALD
PN1204
I understand that?---When we became aware, when the bank went out and unilaterally started offering TEC packaging to L3, that represented a fundamental and a seismic shift in the way in which remuneration flexibility and remuneration packaging was being applied to our industry. We had never contemplated our members being exposed to packaging from L3 and below. So our motivation is to try and put in place some reasonable and fair and equitable provisions to regulate the way in which that is applied.
PN1205
But we are as one on the point that the offers in July of 2001 was branch managers?---Yes.
PN1206
There are many, many other level 3s who are not branch managers; correct?---Yes.
PN1207
Would it be hundreds?---Yes, there wold be hundreds.
PN1208
Hundreds?---I am sure.
PN1209
And if you look at the top of the second page of the draft order, you will see there is a reference there to shift work applies to level 3 staff members only. Do you see that, four lines from the top of the page on the second page of the draft order, in italics?---Yes.
PN1210
Got that. And that is part of the draft order as it relates to clause 6.2.2, and that has got nothing to do with the position of branch managers, has it?---No.
PN1211
That is concerned with other level 3s that may, perhaps in a call centre or the like, there might be a level 3 who is working the shift arrangements there; correct? Wold that be a fair assumption?---Yes.
**** ANTHONY JOSEPH BECK XXN MR McDONALD
PN1212
So the union has been concerned about the possible flow within the ANZ of TEC packaging to other groupings of level 3 employees?---Well, concerned with the flow and actually concerned with the application to those that has been offered to them.
PN1213
All right. And if the bank was to give a commitment that it would not extend offers of TEC packages to level 3 employees beyond those level 3 employees who fit within the boundary of branch managers who are level 3 as a consequence of the application of the Hay classification system, such a commitment would go some way to addressing that part of the union's concern?---Well, that would be a matter for my national executive and for the members concerned. My view is that we need this application to protect the offers that are currently out there, because those people need to have certainty in the sorts of processes we have outlined there, to ensure that the TEC packaging is applied appropriately.
PN1214
That is an offer to 14 people?---And we need that protection for those people.
PN1215
But I am right in terms of putting the parameters of - - -?---I don't know the numbers.
PN1216
Well, the evidence is that there is 149 of the 163 have received the offers, have accepted them. So you say the offers that are out there now, that is an offer to 14 employees, does that take you by surprise?---Well, for the group of L3 branch managers it is 149 plus whatever you are talking about. My view is, we need processes to ensure the TEC packaging is applied appropriately, and we need this application to provide that appropriate process.
**** ANTHONY JOSEPH BECK XXN MR McDONALD
PN1217
What is it about a level 3 employee as distinct from the 5000-odd other TEC packaged employees within the bank that warrants the prescription in clause 6.3 which you do not seek to extend beyond level 3? Do you follow the question?---I think I do. I mean, I think the issue is, when we originally agreed to TEC to cat A to cat E, we had a clear understanding of what that meant by way of voluntarism, we had a very clear understanding of what that meant, and we also have a view about the relative seniority of those people and their capacity to go through the process that was agreed to in 1994. Now, we are now seeking, based on our experience, the protection that is outlined in our draft application for the L3, as well as making voluntary for all those who are offered TEC. And in terms of, to the extent that your question is that it is more detailed, we just think that may be a function of the fact that the L3s are relatively less experienced in terms of their experience with the bank, in terms of their dealing with the bank, and that it would be appropriate to have those sorts of mechanisms of consultation, cooling off periods, information exchange, reference to the union, to assist them to make that decision.
PN1218
Well, when you say that the L3s, in terms of the personnel profile of L3s, are less experienced, you don't take issue with the fact that we are talking here about employees who are managers of branches, albeit they are not big branches, to put it in very broad terms, that they are managers who would have responsibility in terms of supervision of other employees within the branch, and the like; is that a fair comment?---Yes, that is right. But I think my answer is - I will restate my answer. In 1994, in the circumstances at the time, trying to mutually and properly comprehend the bank's competitive and other business pressures, we agreed for the first time to a level of remuneration flexibility that is documented there, and it is for relatively senior, more senior than L3 employees from cat A to cat E. We are now saying, you know, eight years on, based on our experience and given the nature of the employees who this is targeted at, and, you know, the sum total of our experience over the application of TEC packaging, we think that this is a fair and reasonable level of process for the bank to go through to make those offers.
PN1219
But in terms of your experience, the union's experience between 1994 and the middle of 2001, can I put to you, has been that the system of TEC packaging for classification A through to E, it has operated very smoothly?---No.
**** ANTHONY JOSEPH BECK XXN MR McDONALD
PN1220
It has operated very smoothly because - let me finish please - because you haven't given any evidence, and there is none before the Commission, of the union ever having to have to agitate with the bank a problem with a TEC employee; that is the case, isn't it?---Well, with respect, the most protracted debates we have had with the bank in the most recent years, in the last two years, for instance, have been around the application of TEC packaging. The ideology behind it, the purpose, the intent behind it has become one of the most bitter exchanges that I have personally been involved in with this bank. The way in which it is being applied, the purpose for which it is being applied, the intent for which it is being applied, it has been the cause of great stress and tension and disputation between the parties.
PN1221
You see, you didn't even know, Mr Beck, until July of 2001 that for the preceding seven years the ANZ Bank had been offering appointment and promotion within group 4 on the basis of acceptance of a package, you didn't know that, did you?---Well, what I knew was that when we signed off that memorandum of understanding, and we went through very protracted negotiations to actually, for the first time, to create a precedent in this industry to allow this employer, and this employer was talking about being an employer of preference, the use of mutuality and sophisticated mutuality provisions, I did know that we signed off a memorandum of understanding which had clear provisions around voluntarism, that it was a voluntary process, and that you could actually opt back out of that, and that is what I understood was the basis on which the TEC packaging was being applied. And whatever that date was when Christopher Baker wrote back, was the first that I became aware that, in actual fact, it was conditional upon receiving a promotion that you accept TEC. Because up until that time this bank had a very clear policy around promotion being based on merit, being based on performance, it had a very sophisticated personal appraisal process, and I understood, and I have always understood that promotion was based on merit, and that was consistent with the memorandum we understood. Now, when we became aware in July 2001, that that was no longer the case, we have sought to respond in the way we have by way of this application and by way of the most intensive enterprise bargaining campaign that we have ever conducted with this bank. All the other agreements are settled. It is not settled with this bank because of the way in which TEC packaging is being, in my view, misapplied.
**** ANTHONY JOSEPH BECK XXN MR McDONALD
PN1222
But you are not suggesting that any of the 5000 employees - put to one side the 163 who received an offer in July 2001. It is no part of the union's case in these proceedings in the Commission that any of those 5000 TEC packaged employees are being financially disadvantaged or unfairly treated, is it? You have no evidence, you don't have a jot of evidence to suggest that?---Well, to the contrary. I have just completed a survey of packaged managers, not me, my executive, we have completed a survey, and we have asked the question, and there are many, many package managers who are concerned about the implications that industrial coverage, whether it by way of award or agreement, is now linked and conditional upon them being required to accept TEC packaging, and being excluded from those industrial agreements. So my experience as I sit here today, is that it is a source of substantial concern for a significant number of our packaged managers, the way in which it is being applied, the purpose for which it is being applied, and the potential end intent of the application of the policy.
PN1223
But post July 2001, when you got the letter from Mr Baker that is annexed to your statement, did you actually make any inquiries yourself to ascertain whether what Mr Baker indicated in the letter to you, in fact, reflected the practice which had been in place prior to July 2001?---Well, look, my reaction was one of shock, was shared by a range of my colleagues, and we immediately commenced a process of trying to ascertain how we would respond.
PN1224
What is going on?---How we would respond, and developing a strategy to put in place what we believe are appropriate protections for our members, for all our members.
PN1225
But you are not disputing what Mr Baker said in his evidence about what the position was between '94 and 2001, albeit that you didn't know about it?---All I can say to you is that I was very involved in the '94 discussions, I signed off the memorandum of understanding. I understood this bank's commitment to promotion on the basis of merit. I understood the opt out provisions, and was very clear about that, that people could opt out of these arrangements if they weren't appropriate. I understood the board of reference, because this was an
**** ANTHONY JOSEPH BECK XXN MR McDONALD
unprecedented move, and we put in place the best protection we possibly could because we had high levels of doubt about what this would mean, and we understood that we would do it in that way. And as I said to you before, in July 201, it was first drawn to my attention, or I first became aware that, in actual fact, promotion is conditional upon accepting of a TEC package.
PN1226
Now, in relation to the offer to the 163 managers in 2001, have you seen the evidence of Mr Baker, that 14 have not accepted?---Yes.
PN1227
So that of itself, and I put to you, is evidence of the fact that if someone doesn't want to accept an offer they don't, it is a voluntary offer, it is a voluntary process. There is 14 who have said no, I don't want to do that, I will stay where I am?---In my view it is a particularly twisted version of the use of voluntarism. We have never understood - we always understood - put it in the positive - we always understood that you will be treated equitably, that your opportunities for promotion will be based on your merit, your capacity to perform the role, because the bank spends an inordinate amount of time to personally monitor, evaluate and provide feedback to all its staff, for the purposes of encouraging people's careers and their remuneration. We have always understood that you were promoted on the basis of merit.
PN1228
Do you understand how the TEC packaging system operates in broad terms?---In broad terms.
PN1229
Can I put this to you. That in broad terms the difference between the TEC package and the award as a remuneration model, is that the TEC package facilitates a greater proportion of total remuneration being contingent upon performance assessment; correct?---Yes.
PN1230
And you would accept that there would be a proportion of employees who would be quite happy to be remunerated on that basis, that is, they would take the view, if I am being assessed on a performance basis, on a package, I think I can do very well out of the company's share options scheme; you would accept that?---I certainly accept that.
**** ANTHONY JOSEPH BECK XXN MR McDONALD
PN1231
Yes. And there would be others who might take a different view?---They might take a view that says I would like the opportunity for promotion regardless of my remuneration, I would like the opportunity for promotion on the basis of my capability to perform the role and the merit of me being able to perform the role, and if I choose to be remunerated by the award and the associated conditions, that is appropriate. If I choose to be remunerated more at risk in the way you have proposed, that is also - and that was what we understood by the nature, and the voluntary nature of TEC packaging. It is counter intuitive, absolutely counter intuitive that we would, in '94, agree to a proposition that deliberately allowed the bank to, you know, discriminatorily offer remuneration, promotion. I mean, it should be free choice. You get your offer of a promotion to a management position not linked to whether you are covered by the award or the TEC.
PN1232
Mr Beck, you can't give evidence - and if you can, please do so - you can't give evidence of a single complaint of discrimination from 1994 to July 2001. This system has just been running on wheels as smooth as silk, not a problem, not a complaint; that is right, isn't it?---And I can say to you that the question of TEC packaging and those members subsequent entitlements to award protection and enterprise bargaining protection, is a source of significant disputation between the parties.
PN1233
In the present EB round?---Since we became aware it was being offered in the way it is being offered.
PN1234
And can we be clear about this. You have the draft order in front of you?---Yes.
PN1235
If you look at clause 6.3, the draft order, and look at the second sentence there:
PN1236
A staff member's promotion and career prospects with ANZ will not be detrimentally affected if they choose not to accept a package.
**** ANTHONY JOSEPH BECK XXN MR McDONALD
PN1237
In terms of the practical application of this, if there is presently a class B employee within group 4, and that employee is offered a promotion to classification C, the effect of clause 6.3 is that that would prevent the bank from offering that promotion solely on a TEC package basis. Is that how you read that provision, and is that its intent?---You might have to explain it again. My understanding of the intent there is that - - -
PN1238
I will explain it, all right. Clause 6.3 operates, on its face, in respect of all group 4 employees, all 5000-odd group 4 employees, not just the 163 who got an offer last July, but the other 5000. The evidence of Mr Baker is that since July '94, for that 5000 employees appointment and promotion has been on the basis of TEC package. The effect of clause 6.3 wold be to prevent the bank from continuing with that practice. They would have to offer someone going from B to C, they would have to offer them, on your provision, both the TEC package and the opportunity to be governed by the award?---Offer them the choice, yes.
PN1239
That is the intent?---So the intent - so I don't know how that is - I mean, the intention, as I understand it, is that, in your example, going from B to C, the person chooses, they are offered their promotion, it is unconditional, they are offered the promotion, the merit is there, that they have been offered a promotion. Their voluntary choice - - -
PN1240
Yes. And that they are offered alternative conditions?---That is right.
PN1241
They are offered either a TEC package or the award?---And the choose the award or the package, that is right. And the intent is, if they choose not to accept a package, they won't be detrimentally affected.
PN1242
Just bear with me, your Honour. I am just seeing if I can short circuit things to avoid any duplication in the evidence that is unnecessary.
**** ANTHONY JOSEPH BECK XXN MR McDONALD
PN1243
Just in relation to your last evidence, we have got evidence from Ms Noye, we have got evidence from Ms Noye in the proceedings relating to discussions that she has had with level 3 staff who were offered AA classification, but we have got no evidence at all from the union in relation to the position with 6.3, which would justify a shifting of the goal posts in relation to 6.3 from what was the practice and what is the practice since 1994, to that which the union would have it be. Is there any reason why you haven't led any evidence?---Well, if I can answer it this way.
PN1244
Well, you could, for instance, you could have had a class B employee who has said, you know, I have been in this position for the last five years, and six months ago I was offered a promotion from a B to a C, and I feel aggrieved by the fact that at the time I wasn't given the opportunity to go on the award?---What we are seeking to do in 6.3 is put in place or restore what we understood to have been the proper practice when we signed off the memorandum of understanding in 1994, to correct what has been revealed to us in that correspondence from July.
PN1245
Can I put this to you, Mr Beck. The reason why you haven't got any such evidence is that, in fact, those employees who have been remunerated on the basis of salary packaging arrangements since 1994, will have benefited very considerably from the share option component of their salary package, in light of the fact that ANZ shares have gone from, you know, $5 to in excess of $18 in that period; that is the case, isn't it?---And you are guaranteeing they will stay there? No, that is right.
PN1246
So during that period when options have come to be exercised, those on packages, let us not mince words, those on packages with a share option component have done very well, haven't they?---Absolutely. And the reason why in 1994, and the FSU, in my view, we suffered some criticism from the ACTU for being agreeing to salary packaging and this flexibility that is now being put in place, and we created a precedent, but we recognised that there were certain values in terms of this arrangement, we understood that. We understand the way the market operates, we understand share options, we understand share schemes, and we have become fairly literate in that process,
**** ANTHONY JOSEPH BECK XXN MR McDONALD
so we understand there is value to that. All we have sought, all we have ever sought is that there is choice and there is voluntarism, that is, that you are able to look at, in terms of your own personal circumstances, make a judgment, as you have, about the prospective rise in the share price, you make a personal judgment about that, you weigh that up against the certainty of the award and the agreement, and you make a choice. That is what we always understood to be the case. It is clear, in my view, by the memorandum, it is very clear in my recollection that that is what we were seeking to do. It is not, in our view, ever apprehended that the voluntarism was somehow conditional upon you accepting a promotion.
PN1247
You clearly have members within that group, that 5000-odd employees?---Yes.
PN1248
Now, one of the union's practical concerns about the current position, the current practice in relation to the offering of promotion and appointment within group 4, and the offers which went to the 163 level 3 employees, is the question of financial disadvantage; correct?---Yes.
PN1249
Now, you are familiar, are you not, with clause 7? Perhaps I can hand you a copy of clause 7.6 of the certified agreement; if you have a look at that. It says:
PN1250
ANZ makes the following commitments to TEC packaged staff. No staff member will be financially disadvantaged by moving to TEC packaging.
PN1251
Can I put this to you. Doesn't that, in fact, give your members, including the 149 who have accepted the TEC package, it gives them, in a sense, the best of both worlds. It gives them the opportunity for enhanced remuneration through salary package if things run their way, it provides them with protection that if they are financially disadvantaged then there is a means of recourse, there is a commitment that they won't be disadvantaged?---Yes. Again, well, I go back to my recollection of the 1994 discussions, and that is that people who are under the award, they have particular working patterns, they have a particular experience of their ordinary hours and their penalty rates and things that are of value to them in terms of the award, and they put a particular value to that
**** ANTHONY JOSEPH BECK XXN MR McDONALD
which may be financial as much as anything else. They then look at the package and they look at - they make an assumption about the relative value and the application of that package to them, and they are free to make a choice. The intention there, I think, is that clearly we hold the bank - there is some accountability that the TEC packaging people aren't disadvantaged by going onto that, it keeps pace at least with the underpinning award, and people can't fall behind.
PN1252
Yes. And this was obviously something, this issue was significant to the union in the lead up to negotiation of this certified agreement. You wanted a form of protection for people who went onto packages?---Yes.
PN1253
And what I am putting to you is, well, you have got it, and if you are concerned about the position of any employees on a package, you have got the capacity to go to the bank and say, well, there is a commitment here, it is a legally binding commitment, it is in the certified agreement, you had better comply with it?---We have got lots of commitments and lots of agreements, and lots of things that various employers, including ANZ, should or shouldn't comply with, and I have got to take a practical judgment about the relative protection it provides, and at the end of the day we have a view that we should have two things. That is, the provisions in the enterprise agreement which says you won't be financially disadvantaged, and supplementing that, to treat people in a mature way to enable them to make an informed choice to voluntarily access packaging or not without that being constrained by the risk of not gaining or losing option. It doesn't operate that simply, that because it is in agreement that somehow that automatically and axiomatically provides direct relief.
PN1254
But you, within the national office, have never even had cause to take this up, have you, the operation of 7.6, in relation to any employee who has gone onto a package; that is correct, isn't it?---Well, from July 2001, in my engagement with ANZ I have done nothing but, almost nothing but debate with the CEO down the application of salary packaging to TEC staff. That has been the dominant - - -
**** ANTHONY JOSEPH BECK XXN MR McDONALD
PN1255
I am talking about individual employees?---And I do that not on the basis of some whim or some personal fancy, I do that on the basis of feedback I get from my officials and from other sources that there are concerns about the way in which TEC packaging is obviously now being applied, and the consequences going forward. Since July 2001, my rights with ANZ has been dominated by this issue.
PN1256
Look, with respect, clause 7.6 is the colloquial, it is an invitation to put up or shut up. If you have got a member who has gone onto a package, and the union is of the view that because when you compare what they were on under the award, and various entitlements that they have given up, and what they have got when they go onto the package, that they are worse off, 7.6 is the vehicle for you to agitate on behalf of an individual member, and you have never done it?---It is either a put up or shut up or, using colloquialism, it is a gun to their head. And what has happened is, since I have become, since July 2001, I have become aware that TEC packaging is being used to, in my view, coercively require people to move away from their collective protection onto a TEC arrangement, and then the bank further compounds that by offering common law contracts on top of that. And then when we sit down to renegotiate the collective instruments, they say because these people have now signed up on CEC and because they have now signed up an individual contract that is proof positive that they no longer need the protection of a collective instrument. And that is my concern. In my view, just based on my experience and based on survey results and based on contact with my officials, my package manager members are very, very concerned about the consequences of that strategy, so therefore we have sought this application, to ensure that we reinstate what the clear principles between the parties were in 1994, that is, that it is a voluntary acceptance based on the personal assessment of the merits and demerits of award coverage versus salary packaging, not constrained by whether or not you get a subsequent promotion.
**** ANTHONY JOSEPH BECK XXN MR McDONALD
PN1257
The answer to my question is that you are not aware of the union having taken up on behalf of an individual member a grievance that they are financially disadvantaged, and relying upon clause 7.6; that is the answer to the question?---And I am not aware of a whole lot of individual grievances, but I am aware that having surveyed our members we have had a very clear proportion of packaged managers who are deeply concerned about their continuing collective instrument, their collective bargaining protection, on the basis that the bank is seeking to extend what was, we thought, a good faith voluntary process, making it a condition of promotion, and now further distorting that by saying we shall now in the future limit the scope of enterprise agreement.
PN1258
How many of the 5000, thereabouts, packaged managers have you surveyed?---We have done a survey, and I haven't collated all - we are in the process of collating the responses, and the response in terms of a proportion of our members, I think, is a good response.
PN1259
No, I didn't ask the proportion of your members. You might only have 10 per cent of 5000?---That is right. I am worried about the 5000, because I am nervous about that number.
PN1260
Well, I think that is in Mr Baker's evidence, no one has challenged it?---That is much higher than I understood that we surveyed. We certainly didn't survey 5000, is my understanding.
PN1261
You don't know how many you surveyed?---I don't know. I don't think it is 5000. That is the cause of my hesitation.
PN1262
Well, you don't know. When you say you don't know it is 5000, you don't know if it is 500, or you don't know if it is 100?---Your question was, did we survey 5000? I am answering - - -
**** ANTHONY JOSEPH BECK XXN MR McDONALD
PN1263
No. My question was, how many of the 5000 did you survey?---Okay, good point. I don't know the answer.
PN1264
All right?---But in my view, I have had sufficient response to raise legitimate concerns about the medium to longer term consequence of the bank's strategy. And a number of members, a significant number of members have brought that to our concern, sufficiently that we are now going on a process of meeting with manager members to discuss those concerns.
PN1265
You don't know what proportion of group 4 employees are financial members?---I don't. It would be significant though.
PN1266
Now, could I just ask you this, Mr Beck. In relation to the evidence gathering process in this case, the union has got branches - you have got the Victorian/Tasmania Branch, which covers both, but other than that have you got branches in every state?---We do.
PN1267
Do you know whether all of the state branches were involved in attempts to collect evidence for the purpose of this proceeding?---Yes, they were.
PN1268
All of it. But you didn't speak directly to any potential witnesses?---Me personally?
PN1269
Yes?---No.
PN1270
So you have just relied on what has been relayed to you by organisers who have been involved in discussions with others, not potential witnesses?---Well, my statement is part of my experience, my personal involvement in the whole exercise, and part I rely on the advice of my officials. I am not sure which part of the statement you are referring to.
**** ANTHONY JOSEPH BECK XXN MR McDONALD
PN1271
I just go back to your evidence about the survey that the union has undertaken. Correct me if I am mistaken, but you are not able to give evidence as to the number of group 4 employees who have been surveyed?---I am personally not. The report I have had from our industrial officers concerned, is that it has raised a matter of sufficient weight that we now have to deal with and progress forward, and that goes to people's concerns about future coverage by industrial agreements on the basis that the bank strategy has been to remove them from enterprise agreements and effective award coverage by virtue of TEC packaging.
PN1272
Yes, all right. I have got nothing further for the witness.
PN1273
PN1274
MS MALONEY: Mr Beck, Mr McDonald referred to the grievance procedure for the TEC managers in the award, highlighting a different or separate process from the general disputes process, also that there is no such procedure in the 1998 award. Can you explain to the Commission why there was a new award in 1998?---My recollection would be that we were required to, under the provisions of the Workplace Relations Act, simplify our awards and comply with the new legislation. So there was a fairly exhaustive process, we were to put our awards through it to ensure that our awards complied with the allowable matters provision, for instance.
PN1275
So the 1998 awards are simplified awards?---Yes.
PN1276
Now, Mr McDonald advised you of the bank's commitment, or, I should say, if they gave a commitment not to extend the offer of TEC packaging beyond what they call branch managers who are characterised as level 3 according to the Hay evaluation system, if they gave that commitment would that allay some of the union's concerns? In your experience, quite extensive experience, when an employer gives a commitment or undertaking to do X or Y, does that always allay your concerns or give you comfort over the issue in which the commitment is given?---Absolutely not.
**** ANTHONY JOSEPH BECK RXN MS MALONEY
PN1277
And why?---The commitment is subject to so many variables, subject to the people who give the commitment, their tenure, their recollection, the enforceable nature of it, and if it is just a verbal commitment in the current environment, and in our relation with the ANZ Bank and the litigious nature of industrial relations currently, I would be required to place very little weight on that.
PN1278
Now, if I can just take you to a document. It is actually an annexure to Mr Baker's statement in CCB. Your Honour, I am referring to the annexure to Mr Baker's statement under the attachment marked CCB4, and the annexure is titled, or the document, I should say, is titled, individual employment agreements for managers, group 4, clause by clause explanation. Now, I am not sure Mr Beck has this in front of him.
PN1279
MR McDONALD: Is it number 4?
PN1280
MS MALONEY: It is CCB, the individual employment.
PN1281
THE SENIOR DEPUTY PRESIDENT: I share your difficulty, Ms Maloney. It is arranged to be a little bit difficult.
PN1282
MR McDONALD: I think it is the second last bundle of documents behind CCB4. I think the last one is bonus schemes and share options, and then behind that there is a stapled document.
PN1283
THE SENIOR DEPUTY PRESIDENT: That is right. The difficulty I have, and this is a standard difficulty, it is not confined to this situation, the attachment note is the same A4 as everything else in these annexures, and to be told that it is CCB4 is - - -
PN1284
MR McDONALD: Doesn't help.
**** ANTHONY JOSEPH BECK RXN MS MALONEY
PN1285
THE SENIOR DEPUTY PRESIDENT: Well, it is helpful, but it doesn't find the spot.
PN1286
MS MALONEY: Your Honour, I can't find it. I will give Mr Beck my copy, if that is all right.
PN1287
MR McDONALD: Well, I have got a clean copy I am happy to give the witness.
PN1288
MS MALONEY: Thank you.
PN1289
MR McDONALD: But I am about to ask how this arises out of cross-examination, that is all.
PN1290
THE SENIOR DEPUTY PRESIDENT: Well, we haven't heard the question yet.
PN1291
MS MALONEY: Now, Mr Beck, Mr McDonald put to you at various times during cross-examination an issue about whether the unions had disputes in respect to TEC with the bank, and at various times he has put to you that - I think the words he used, if I am correct - that TEC has been running - the system here has been running well or been running on wheels. So he has put to you that there has been limited or no disputes to you in respect to TEC. If I take you to the document I have just given you, or Mr McDonald has given you, can I take you to clause 5.4, which is on top of page 3 of 5.4. There is a reference there to the issue of long service payments, and a question as to whether signing the agreements states the long service leave payments on the termination of employment will be calculated on the basis of your notional superannuation salary lock me into the arrangement if the current court case determines otherwise, and it refers to, in the second paragraph, about some proceedings. Could you explain what is that referring to?---That is referring to a dispute between the bank and the union as to the correct calculation of our
**** ANTHONY JOSEPH BECK RXN MS MALONEY
members termination payments when they were made redundant, the correct application of their notional salary as a result of them being on packaging and the application of a long service provision. I am not sure I have explained that well enough, but it is as a result of packaged managers being on a package, being designated a notional salary, they are made redundant, they are terminated, the calculation as to their long service leave, and there was a dispute as to that which ended up in the Federal Court.
PN1292
And when did that dispute arise?---Well, it was two or so years in the execution, and we got a decision in the last 12 or 18 months, so during the late 90s.
PN1293
And when was a decision issued?
PN1294
MR McDONALD: Early this year?---Early this year, thank you.
PN1295
MS MALONEY: All right. If I can just take you to - Mr McDonald took you to the matter of choice in terms of accepting TEC packaging, and you responded by saying that it wasn't really voluntary; is that correct?---Well, that is my view, and it is the union's view, and it is the basis of the '94 agreement.
PN1296
And he took you to the memorandum of understanding?---Yes.
PN1297
Now, if I can refer you back to that memorandum of understanding?---Yes.
PN1298
Now, the evidence that has been put by the bank is that since 1994 they have made promotions conditional upon being on TEC. Do you recall that is the evidence that has been put?---Yes.
PN1299
Right. Now, can I refer you to clause 5 of the memorandum of understanding, titled, opting back to award conditions?---Yes.
PN1300
How did you envisage or understand that that provision would work?---Well, it was again on the basis as a safety net, such that people would be offered a choice between award remuneration and the TEC, and that on a once only basis within two years of that initial acceptance they could opt out and return to their award based conditions.
PN1301
Right. If I take you to clause 7.6 of the enterprise agreement, which Mr McDonald has taken you to?---7.6, yes.
PN1302
Well, first of all, before I refer you to that, can I refer you to paragraph 18 of your initial statement, that is M12?---Paragraph 18?
PN1303
Now, in paragraph 18 you state, and I refer to the second sentence:
PN1304
It was also the clear understanding of FSU that clause 6.2 of the ANZ 1998 award applied only to group 4, categories A to E managers, and did not extend to any other level of manager or staff below this group.
PN1305
?---Yes.
PN1306
Is that correct?---Absolutely.
PN1307
Now, if I take you to the 1998 enterprise agreement, and I think Mr McDonald gave you an extract of clause 7.6?---Yes.
PN1308
Mr Beck, what is your understanding as to who does clause 7.6 of the - - -?---Group 4.
PN1309
Group 4. Now, in response to a question from Mr McDonald, you said you hadn't personally spoken to any of the members offered TEC packaging last year; is that correct? What you said to Mr McDonald, I am asking?---Yes.
PN1310
If I can refer you back to your statement, the statement of M12, and the reference in clause 25, paragraph 25, I should say, where you refer to the correspondence to John McFarlane, the chief executive officer, in respect to the two members?---Yes.
**** ANTHONY JOSEPH BECK RXN MS MALONEY
PN1311
Did you have any communication with those members through circumstances raised in the letter?---I think I did. I am just trying to recall. I did accompany Cath to a meeting with a regional manager, and I think it was with one of these members, I think. If I can clarify, it wasn't in the context of preparation for this case. So I took the question from my friend here, that have I spoken to any managers in the preparation for this case, and my answer to that is no. There was a particular issue and a particular grievance at some stage, and I think I did attend the meeting to try and assist on this matter.
PN1312
Now, just one last question. There was some questions raised regarding - sorry, you referred to a survey of managers in ANZ. When was that survey conducted?---During the course of this month.
PN1313
This month. Are you aware of - no, I will leave it there. Thank you, your Honour.
PN1314
PN1315
THE SENIOR DEPUTY PRESIDENT: We now move to your witness, don't we?
PN1316
MR McDONALD: Yes. Our estimates are running very well, your Honour.
PN1317
THE SENIOR DEPUTY PRESIDENT: You are entitled to that observation, Mr McDonald.
PN1318
MR McDONALD: Within 120 seconds. That is not bad going, is it?
PN1319
THE SENIOR DEPUTY PRESIDENT: But I think I will take a short adjournment. I might indicate that I am prepared to sit on reasonably late if it assists the parties to finish the cross-examination.
PN1320
MR McDONALD: Yes. Well, Mr Baker is here, so we are ready whenever you are ready.
PN1321
THE SENIOR DEPUTY PRESIDENT: We will be able to start. I will adjourn for five minutes.
SHORT ADJOURNMENT [3.15pm]
RESUMED [3.25pm]
PN1322
THE SENIOR DEPUTY PRESIDENT: Yes, Mr McDonald?
PN1323
PN1324
MR McDONALD: Mr Baker, could you please state your full name and address?---My name is Christopher Charles Baker, and my address is 11 Rose Street, Brunswick.
PN1325
Thank you. Now, you have prepared a statement for the purposes of these proceedings. Do you have that with you?---I do.
PN1326
And together with the attachments thereto?---Indeed.
PN1327
Are the contents of that statement true and correct?---They are.
PN1328
PN1329
MR McDONALD: Now, I have just got one matter that I would like to raise with the witness, if I could. Could you turn to paragraph 39 of your statement. In paragraph 39 you refer there to the results of an ANZ staff survey undertaken in July 2002, a participation rate in excess of 80 per cent of all ANZ employees. The results of the survey show 78 per cent of ANZ staff indicated they were satisfied with working at ANZ, and 81 per cent responded positively to a question asking whether ANZ maintains high standards of ethics and integrity. Do you have any knowledge as to the survey results as they related specifically to group 4 employees?---I do.
PN1330
And what was the outcome in that respect?---The outcome for group 4 employees for the overall satisfaction was 82 per cent in 2002, which was actually up from 66 per cent 12 months previously, and in relation to the ethics and integrity issue, then the group 4 results were at 87 per cent positive, relative to 70 per cent positive the year before.
**** CHRISTOPHER CHARLES BAKER XN MR McDONALD
PN1331
All right. Can I ask you what arrangements, if any, are in place to protect the confidentiality of the answers provided by survey participants?---Certainly. The survey data is received and analysed by an external provider, Sicore International. Because of the issue of confidentially, ANZ actually has built into the contract with Sicore that it cannot provide ANZ with data that could be tracked back to an individual, and in terms of producing reports that can be delivered into the business, Sicore has determined that six is the minimum number in a work area in order to protect that confidentiality, advice of that contract provision, and the protection of confidentiality is provided to staff by way of a statement from the CEO at the launch of the staff survey.
PN1332
Thank you. I have nothing further.
PN1333
PN1334
MS MALONEY: Mr Baker, could I ask, do you have the attachments to your witness statement with you?---I do.
PN1335
Could I take you to, firstly, paragraph 8 of your witness statement?---Yes.
PN1336
In which you set out, you refer to employee classification levels as commonly referred to in ANZ, and there is a table there, and over the page you refer to group 4, category AA?---That is correct.
PN1337
Yes. Can I just hand you up a copy of the award and the enterprise agreement applying to ANZ?---Thank you.
PN1338
If I could take, I think, to clause 16 of the award, that is the Banking Services ANZ Group Award 1998?---Yes.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1339
Now, it is clear from that clause, is it not, that there is no category AA in that provision?---That is correct.
PN1340
And if I take you to the enterprise agreement, and I take you to - I think we have highlighted and pointed out clause - - -?---15.
PN1341
I also put it to you that there is no category AA covered by the enterprise agreement?---That is correct.
PN1342
So it would be correct to say that in terms of the award and the enterprise agreement there is no category group 4 category AA?---Not specified in those documents.
PN1343
THE SENIOR DEPUTY PRESIDENT: Just before you go on, Ms Maloney. Subject to category AA, I am fully conscious of it, that is probably the clearest exposition of the way the classifications work. They go from top to bottom in that paragraph, group 1 is the top?
PN1344
MS MALONEY: That is right, but with the exception, sir, that there is no category AA.
PN1345
THE SENIOR DEPUTY PRESIDENT: I am well aware of - - -
PN1346
MS MALONEY: Yes, sir. We have no problems with the rest of that description, but category AA is not covered within the award or the agreement.
PN1347
THE SENIOR DEPUTY PRESIDENT: That enables me to have the point of reference. That is the reason I raised it. It satisfies that query I raised this morning.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1348
MS MALONEY: Now, Mr Baker, if I refer you to clause 10 of your witness statement, now, it states there that:
PN1349
The vast majority of these managers -
PN1350
That is the group 4 category A through to category E:
PN1351
- over 99 per cent of approximately 5000 are remunerated by way of salary packaging known as total employment cost or, more simply, TEC salary packaging.
PN1352
I put it to you that in view of the evidence that has been put by ANZ, and I refer to it in your own witness statement, that it has been ANZs policy since 1994 to make appointment and promotion to group 4 management positions conditional upon acceptance of TEC. It is not surprising to find that over 99 per cent of managers in this group are on TEC, is it not?---Following the initial 92 per cent take up rate, no.
PN1353
Yes. But if appointment and promotion to group 4 category A to E, in accordance with your evidence, based on ANZ policy, is conditional upon acceptance on TEC, then it is not surprising to find so many on it, is it not?---It is not.
PN1354
No. Thank you. Now, I go to paragraph 13 of your statement, where you provide a background to the award variation and formation of the ANZ FSU TEC Packaging Consultative Board. In paragraph 13 you state:
PN1355
Following agreement in 1995, the award was varied for the insertion of clause 48 to the 1991 award, and clause 48 provided that only certain award provisions would apply to employees who are designated higher than the highest management category prescribed in the 1991 award.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1356
I would like just to hand up to you - and it is contained in the FSUs attachments to the submissions of the FSU, and that is a copy of the variation to the award in 1995, if I could hand you that. Your Honour, we have another one here.
PN1357
THE SENIOR DEPUTY PRESIDENT: Yes, it is in the tabs, isn't it?
PN1358
MS MALONEY: Yes, it is in the tab, your Honour. We are just locating which tab, but it is in the tab to our - - -
PN1359
MR McDONALD: Tab 2.
PN1360
THE SENIOR DEPUTY PRESIDENT: Tab 2, yes, as Mr McDonald says.
PN1361
MS MALONEY: Now, Mr Baker, if I can just take you to the consent order made by Deputy President Maher, dated 24 January 1995, and point A2, where it states:
PN1362
The above award is varied as followed. By inserting at the end of clause 48 the following.
PN1363
And, of course, that is the exemption in respect to management category A to E, who sign a written acceptance of total employment cost over packaging, and it sets out that the award does not apply to those managers, except as, and the clauses are identified therein. So I put it to you that clause 48 was not inserted for the first time in 1995, it was actually an amendment to clause 48, and actually the clause 48 that was in the award prior to that amendment was the exemption in respect to the managers groups 1, 2 and 3; is that correct?---That is correct, it is a revised clause 48.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1364
Right. Now, if I take you to paragraph 18 of your statement, you say that - and that is under the heading, November 2000, offers of individual employment agreements - you say that:
PN1365
In November 2000, ANZ extended an offer of common law individual employment agreements to all of its group managers in Australia. This initiative followed earlier extension of common law individual employment agreements to the more senior management classifications, group 1, 2 and 3, in 1997 and 1998.
PN1366
Now, I put to you that, isn't it a fact that common law, or we will call them common law individual employment agreements, for the term, have traditionally applied to management positions in ANZ?---No. The terminology that you picked on actually is specific. ANZ employees at all levels have traditionally had service agreements which they sign on joining. In November 2000, ANZ specifically rolled out the common law individual employment agreements, clearly branded so, in fact, shortened in the manner of ANZ to IEAs, individual employment agreements, because of the significance of that initiative in inviting the managers to take up that opportunity.
PN1367
All right. Well, could I take you to your attachment CCB4, and to a document titled, individual employment agreements for managers, group 4?---Frequently asked questions?
PN1368
Sorry?---Frequently asked questions, is that a sub heading?
PN1369
No, sorry. Individual employment agreements for managers, group 4, clause by clause explanation?---Yes.
PN1370
So have you got that?---I have that.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1371
I was wondering if you could read to the Commission the note in the NB up the top, if you could read it?---
PN1372
Throughout this document you will see references made to service agreement. This document is an outdated form of individual employment agreement which ANZ used up until about two years ago. Many of you will have signed a service agreement when you joined ANZ.
PN1373
And in the next paragraph?---
PN1374
Those of you who joined ANZ or have been promoted to a management position within the last two years are likely to have signed the modernised form of individual employment agreement. The agreement is very similar in form and content to the new individual employment agreement that you are being asked to sign.
PN1375
Right. And can I also now take you to clause 7, which is on page 3, and that states that:
PN1376
This is a common contract in terms of values and ethical standards.
PN1377
It refers to:
PN1378
This is a common contractual provision with the purpose of avoiding conflict of interest. It updates the following more onerous service agreement clause.
PN1379
Is that correct?---That is correct.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1380
And also clause 8, in terms of the first paragraph at clause 8, it refers to the historic service agreement. And then again in clause 9:
PN1381
This clause modernises the service agreement provision that states -
PN1382
And it goes on to set out the new clause?---It does.
PN1383
Then in clause 10, confidential information, this refers to an amendment to the service agreement, and sets out what was the clause in the service agreement?---It does.
PN1384
And again in clause 11, reference is made once again to the service agreement in respect to the issue of restraint; is that correct?---That is correct.
PN1385
And in respect to 13.2, it refers to the historic service agreement or the previous employment agreement?---That is correct.
PN1386
And similarly, in respect to the next document, individual employment agreements frequently asked questions?---Yes.
PN1387
THE SENIOR DEPUTY PRESIDENT: Share options, frequently asked questions?
PN1388
MR McDONALD: It is the one before. Frequently asked questions precedes that.
PN1389
MS MALONEY: Yes. It is titled, individual employment agreements, frequently asked questions. And I refer you to, firstly, I refer you to question 6, which asks the question:
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1390
Will all managers have to sign individual agreements?
PN1391
And as part of the response it states, in the second paragraph, the second last sentence:
PN1392
Each of you has previously signed a form of individual agreement either in the form of a service agreement or a modernised individual agreement.
PN1393
?---Correct.
PN1394
And I also refer you to question 14:
PN1395
What are the main differences between my existing agreement and my new one?
PN1396
And then it sets out what they say is the main difference between your currently individual employment agreement and what those differences are. So based on those references, I also refer you to annexure A to the FSUs submission in reply. Now, I don't know if you have got it, but I will show you annexure A?---Thank you.
PN1397
And I will put to you that annexure A contains what could be described as the outdated service agreement; would that be correct?---It looks familiar. It generally came in a sort of foolscap size blue paper.
PN1398
Right. And I would probably suggest that if we read to the first paragraph, it wouldn't take long to realise why it was outdated, seeing it only refers to one agenda?---Indeed.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1399
THE SENIOR DEPUTY PRESIDENT: There is a lot of other things that are interesting too.
PN1400
MS MALONEY: So having taken you to those references, I put it to you, Mr Baker, that whilst the content of the individual agreements that were offered to the group 4 managers in November 2000, the content varied, the concept of an individual employment agreement or a common law agreement, or a service agreement we put under the umbrella of a common law, is something that has been applied to group 4 managers previously. In other words, November 2000 was not the first time that ANZ issued to group 4 managers a document that could be characterised as a common law agreement?---It was a very significant initiative.
PN1401
I put the question to you; was November 2000 the first time that ANZ issued to group 4 managers a document that could be characterised as a common law agreement?---No.
PN1402
Thank you. Now, if I go to the nature of the group 4, or the offer that was made to the group 4 managers in November 2000, and if I take you under heading, November 2000 offers of agreement, in paragraphs 18 to 19 of your witness statement, and if I can take you to CCB4, which I think is contained in the material that was sent out with the offers that were made to managers in November 2000. Your Honour, CC2(4) starts with, or commences with a letter from the CEO, message to all managers, dated 3 November 2000.
PN1403
THE SENIOR DEPUTY PRESIDENT: CC2?
PN1404
MS MALONEY: CC4.
PN1405
THE SENIOR DEPUTY PRESIDENT: I think it comes just after the award. Yes, it does. Yes, a letter of 3 November 2000.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1406
Now, Mr Baker, it is your evidence that 99 per cent, or over 99 per cent of the managers in group 4 were on TEC?---Are on TEC.
PN1407
Or are on TEC, sorry. And was that the situation roughly, or in terms of November 2000, what would have been the percentage who were on TEC?---Of a similar ilk.
PN1408
A similar ilk. Now, in terms of the offer that was made to group 4 managers in November 2000, isn't it correct that that offer was not about introducing total employment cost packaging to group 4 managers, was it?---It was not.
PN1409
No. If I can take you to the offer, in terms of the message from the CEO, it was to, well, I suppose, to introduce them to or offer them incentive plans and to participate in the incentive arrangements; is that correct?---That is correct.
PN1410
And if I take you to the document titled, frequently asked questions, individual employment agreements, frequently asked questions; have you found that?---I have.
PN1411
Question 7. Your Honour, the document is titled, individual employment agreements, frequently asked questions.
PN1412
THE SENIOR DEPUTY PRESIDENT: Yes. 7 is, why are we being asked to sign these agreements now?
PN1413
MS MALONEY: Yes, that is right.
PN1414
And in that response it indicates that - it refers to the remuneration cycle and the beginning of a new one marks the natural point for the updating of individual agreements, concludes with the TEC package. So it is quite clear it is what was called the TEC annual review; would that be correct?---That is correct.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1415
Right. Now, if I take you, in terms of what are the main differences, I put to you one of the main differences or one of the main features of the new agreement that was put out to managers in 2000, was the changes that ANZ sought to make to the redeployment and redundancy provisions, and I refer to question 14 in this respect. I put that there are other updating of clauses, I have got no dispute about that. But in terms of a substantial change that was being sought to be included in this new form of common law agreement, was the change in respect to the redeployment and redundancy provision; is that correct?---I am not sure I understand the question.
PN1416
Well, it is clear from material that ANZ put out, that one part of the new agreement was to update what could be called outdated clauses, or maybe more modern in terms of a comparison?---That is correct.
PN1417
But is it not correct that one of the main features that makes this agreement different - I will put it that way - different to previous common law agreements, is that this one was going to include as an appendix to the agreement, or an attachment, the redeployment and redundancy provisions, or redeployment and retrenchment provisions that would apply to group 4 managers?---It was important that that be spelt out. That was what differentiated the individual employment agreement, was that as is exemplified by the detail of communication that was provided to staff here, it was important that they be fully informed. It is spelt out in these documents that the intent is to negotiate a new enterprise bargaining agreement such that the individual employment agreement will stand alone for managers, as it stood the existing individual - the service agreements made no reference to redeployment and redundancy, so it was important to protect the redeployment and redundancy provisions of group 4 by attaching it in an appendix.
PN1418
Right. Now, could you explain to the Commission where currently, or at that point in time as well were the redeployment and retrenchment provisions that applied to group 4 managers, where were they contained, and still are contained?---In the ANZ FSU Agreement 1998, and still are contained.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1419
Thank you. Now, in terms of, I have just explained the question I have asked before, could I take you back to the line manager presentation dated 3 November 2000.
PN1420
THE SENIOR DEPUTY PRESIDENT: Towards the front?
PN1421
MS MALONEY: Yes, your Honour. It is an overhead presentation, and at page 8.
PN1422
I take you to one of the key changes?---Yes.
PN1423
So it says that:
PN1424
The retrenchment and redeployment be incorporated into -
PN1425
So on one side it has EBA applies, includes retrenchment and redeployment provisions?---Correct.
PN1426
And on the other side it has, going forward, EBA not to apply?---Correct.
PN1427
Retrenchment and redeployment incorporates into individual employment agreements?---Correct.
PN1428
Now, before November 2000, the previous common law agreements, they did not have the redeployment and retrenchment provisions, did they?---The service agreements that were in place did not?
PN1429
Yes?---No, because they are fundamentally different.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1430
All right. The individual agreements, did they have redeployment and retrenchment provisions contained within them?---No.
PN1431
Now, if I can take you back, and I am sorry about this jumping, but we are trying to make sure we have got it all clear, I take you back to the frequently asked questions document, and question 15, which refers to the redeployment and retrenchment schedule in the individual employment agreement identical to - the question is, whether the redeployment and retrenchment schedule in the individual employment agreement identical to the clause in the 1998 EBA. Now, I put to you, Mr Baker, that the provision that ANZ sought to include, or did include in the individual employment agreement that was put to managers, group 4 managers in November 2000, differs to the provision that is contained in the enterprise agreement?---Yes, at one element, yes.
PN1432
And that element is the issue of the definition of directly comparable position?---One element of that definition.
PN1433
Yes. But under the enterprise agreement at the moment - and I will refer you to the enterprise agreement. We handed you a copy of the enterprise agreement?---Yes.
PN1434
Does your Honour have a copy of the enterprise agreement?
PN1435
THE SENIOR DEPUTY PRESIDENT: Not unless it is in the annexures to one of - - -
PN1436
MS MALONEY: We had a copy. It may have been put up during the course of these proceedings, but because of the time I thought it might be easier just to give you another one.
PN1437
Now, Mr Baker, I take you to clause 8 of the agreement, and in particular the definitions clause, 8.1, where in the last paragraph it refers to the definition of directly comparable position, and says:
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1438
That shall mean a position which is at the same grade, level or above within ANZ Group, which does not entail a change in duties significant enough as to be reasonable in the circumstances of the staff member's skills and ability, and which is at the same location or another location which is in reasonable commuting distance.
PN1439
And that the issue of directly comparable position becomes relevant in respect to redeployment; is that not correct?---That is correct, there are three primary criteria.
PN1440
That is right. So if a person's position becomes retrenched, and they are redeployed in a directly comparable position, but if there is not a directly comparable position they do have the ability to be redeployed into another position on a trial basis?---That is correct.
PN1441
And if that trial, if it doesn't work out, then they can be entitled to the relevant retrenchment payments?---That is correct.
PN1442
Now, we refer you to clause 15, the definition of directly comparable position that was sought, or that was included, I should say, in the individual employment agreements offered to group 4 managers, was different, was it not?---On one of the three criteria, yes.
PN1443
Yes. The definition in the EB includes, as it says in question 15:
PN1444
The definition in the EBA includes the words, a position at the grade level or above within ANZ Group. In the new individual employment agreement the definition of directly comparable position includes the words, a position of no less than your current total TEC package.
PN1445
?---That is correct.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1446
Right. So I put to you, Mr Baker, that what ANZ was trying to do in terms of the offers that they made to the group 4 mangers, was to impact, in our view, reduce the redeployment and retrenchment entitlements that group 4 mangers had under the enterprise agreement?---Questions 15 and 16 together address that specifically under the definitions of comparable role at 8.1; there are three criteria. It was same grade level or above, reasonable commuting distance, and not unreasonable given the person's skills and experience. The change is to say same pay, no reduction in pay and not unreasonable in terms of the person's skills and experience, and reasonable commuting distance. The documentation also clearly explains that the terms of their 1998 EBA prevail unless and until there is a new agreement.
PN1447
Right. But in terms of the provision that was sought to be included into the individual employment agreement, the change that you sought to the definition of comparable position would allow ANZ, well, sought to allow people to redeploy to lower positions subject to they are not changed in their TEC package level?---And subject to that role being commensurate with their skills and abilities, and at the same location or another location within reasonable distance.
PN1448
But under the enterprise agreement there is no ability for ANZ to redeploy someone into a lower position; is that correct, under the enterprise agreement?---It is under the terms that you previously espoused.
PN1449
I will ask the question again. Under the enterprise agreement there is no ability for ANZ to force someone to be redeployed into a lower position; is that correct?---That is correct.
PN1450
Thank you. Now, is it correct that, if I take you back to the message from the CEO to all managers, and the third last paragraph where the CEO states:
PN1451
I am personally very keen to have our managers hold share options in ANZ, so I am pleased to let you know that you will receive 750 ANZ share options on signing the new agreement with us. Also we are introducing a share options scheme for managers with the first options being issued early in 2001.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1452
Mr Baker, if a group 4 manager declined to sign the individual employment agreement, were they able to receive those 750 ANZ share options?---No.
PN1453
Well, I put to you that it was by offering those 750 share options ANZ was offering an inducement to those managers to sign on those individual employment agreements?---You have put that to me.
PN1454
I have put that to you, it is a form of inducement to sign?---Is there a question behind that?
PN1455
Well, I put this. If a manager was not offered the agreement - sorry, if a manager wanted to take up those share options they had to sign those agreements; is that correct?---By accepting an agreement a manager received access to 750 share options, that is correct.
PN1456
And if a manager refused to accept the agreement?---If a manager decided that they did not want to accept an agreement, then they did not need to, but they didn't receive the benefit of so signing.
PN1457
So is it correct then, Mr Baker, that in respect to the offers that were made to the group 4 managers in November 2000, that those offers, with the exception of incorporating the annual review of their individual TEC package, those offers had nothing to do about introducing TEC as a new concept for group 4 managers, did they?---No, they did not.
PN1458
Now I take you to the offers that were made to TEC packaging, to what is called by ANZ, category AA employees. Now, in paragraph 20, you state, under the heading, July 2001 offers of TEC packaging to category AA employees:
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1459
Following the extension of individual employment agreements and extended bonus arrangements for managers in November 2000, ANZ received a number of verbal inquiries from branch managers operating in group 5, level 3 positions, as to the reasons they were not given the same opportunity as group 4, to sign off on the individual employment agreement and participate in the extended bonus arrangements.
PN1460
Further, in paragraph 21, you say that due to the Hay methodology this group of managers had been classified as group 5, level 3, rather than group 4 category A, and this meant that these managers in these particular branches were not technically considered to be part of the management group which commences at group 4, rendering them ineligible for these management arrangements, those management arrangements being individual agreements and extended bonus arrangements; is that correct?---That is correct.
PN1461
Now, if I could take you to CCB6 attached to your statement, and I take you to question 4, which is:
PN1462
Do I have to accept the offer of TEC, and sign an individual employment agreement?
PN1463
In the last sentence to the answer to that question, it states:
PN1464
In addition, each of you has previously signed a form of individual agreement either in the form of a service agreement or a modernised individual agreement.
PN1465
I also take you to question 6, which is:
PN1466
Is my individual agreement different from other managers?
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1467
And it says:
PN1468
The only difference between the individual agreements is in relation to each manager's personal details, and they are called individual agreements because they are between an individual and ANZ.
PN1469
I also take you to question - it is in the same document - question 27:
PN1470
What are the main differences between my existing agreement and my new one?
PN1471
And as part of the answer:
PN1472
If your current individual agreement is one of the old service agreements, and the differences are many.
PN1473
And it explains that to cover these it produced a separate document that provides a clause by clause explanation:
PN1474
If your current individual agreement is a more recent one which was signed in the last couple of years, the changes are minor and have been designed to standardise your terms and conditions in line with the new agreement.
PN1475
And then sets out what the key differences are. Now, having taken you to those, isn't it correct then, in the case of these level 3 managers, or branch managers level 3, have also traditionally operated under individual employment agreements, or what I have described before, that could be characterised as common law agreements?---They have had service agreements, and the significance of this change was apparent to those managers as it was to the organisation, hence our commitment to extensive and open communication on that process.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1476
That is right. And I will put it again, Mr Baker. Was July 2001 the first time that branch managers at level 3 been offered what could be described as a common law agreement by ANZ?---It is a fair summary of what could be described as one intended to stand alone.
PN1477
I will put it again. I have explained what I meant by common law, to encompass an individual employment agreement, I put it again, based on the references I have taken you to, is it your evidence that the first time that branch managers level 3 were offered by ANZ an individual employment agreement of a common law nature was in July 2001?
PN1478
MR McDONALD: I must say, I find the question extremely confusing. You can't be an employee unless you have got a contract of employment. So from the day someone started they have obviously got a contract of employment. I don't understand the question.
PN1479
MS MALONEY: Well, your Honour, if you can bear with me.
PN1480
THE SENIOR DEPUTY PRESIDENT: But that is not the point, of course.
PN1481
MS MALONEY: The question I put is - well, Mr Baker, I take you back to your witness statement.
PN1482
MR McDONALD: Can I just say generally, for the life of me I am completely at a loss to understand what is the relevance of this questioning in light of what is an agreed matter between the parties. There is no issue, it seems, that from the middle of 1994 all offers of appointment and promotion within group 4 have been on the basis of a TEC package. Now, perhaps Ms Maloney can indicate where exactly are we going with this line of questioning?
PN1483
THE SENIOR DEPUTY PRESIDENT: I thought we were dealing with level 3 now.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1484
MS MALONEY: We are. We are talking about level 3, your Honour.
PN1485
THE SENIOR DEPUTY PRESIDENT: We are dealing with level 3, we are dealing with that group, the 163, or their cohort, not group 4.
PN1486
MS MALONEY: I will take you, if there is an issue of relevance, but I take you to paragraph 20 and 21.
PN1487
THE SENIOR DEPUTY PRESIDENT: Of the statement?
PN1488
MS MALONEY: Of the statement, your Honour, yes. Sorry, your Honour.
PN1489
And I would put it to you, Mr Baker, that in respect to paragraph 20, the statement that:
PN1490
Following the extension of individual employment agreements and extended bonus arrangements to group 4 managers, inquiries we have received from group 5, level 3.
PN1491
But more particularly in respect to your statement in paragraph 21, that group 5, level 3 managers, because of what you call a quirk in the Hay job evaluation methodology, had been ineligible to what you described as management arrangements, individual agreements and extended bonus arrangements. And I would put it to you, Mr Baker, that you have given the impression in your witness statement that the first time these branch managers were offered individual employment agreements was in July 2001. And that is the relevance of it, your Honour, because Mr Baker's witness statement gives the impression that the bank embarked upon a strategy probably prior to November 2000, but at least embarked upon a strategy in November 2000, and the logical extension of that was offering individual agreements to category AA employees in July 2001. And the point we are making is that from the evidence, their own
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
evidence, the fact is individual employment agreements, service agreements or what ANZ called the more modernised individual employment agreements have traditionally been applied in ANZ, and they haven't arisen from a strategy that was thought up back in November 2000; is that correct?---I did get lost along the way. I accept your point.
PN1492
Well, I will put it more distinctly. Have individual employment agreements which encompass for the term that I am using, so there is no misunderstanding, service agreements or what you call a modernised individual employment agreement, and which is referred to in your own documents, they have been applied to managers prior to November 2000?---Common law employment agreements to the extent that they are required for an employment relationship, yes.
PN1493
Well, I would put it to you, Mr Baker, that we would say that your own documentation demonstrates that they have been put before 2000?---That is correct. And they are individual employment agreements clearly branded IEAs with their different objectives, an initiative of July 2001 for those people.
PN1494
Now, coming to the nature of the agreements that were offered to level 3 managers, I take you to the attachment in - sorry, I will retract that. In your evidence so far you have indicated that as part of the individual employment agreements that were offered to group 4 managers in November 2000, as part of that was an amendment to the redeployment and retrenchment provision attached to that?---That is correct.
PN1495
And it is also your evidence that those offers did not reflect or did not represent the introduction of TEC for group 4, but were more the annual review of the packages in terms of the October review?---I can confirm that they did not introduce TEC.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1496
That is enough. In respect to the nature of the offer that was made to branch managers, level 3, you say there in paragraph 20, those offers were an extension of what have been offered to group 4 in November 2000. Now, if we go to the offers that were made to level 3, and I take you to CCB5, which is an example of a letter to an employee dated - sorry, your Honour, the first document of CC5, I should say, is a sample of a letter.
[4.15pm]
PN1497
THE SENIOR DEPUTY PRESIDENT: Yes, is a sample of a letter dated 23 July 2001.
PN1498
MS MALONEY: That is right, your Honour, yes.
PN1499
Have you found it, Mr Baker?---I have.
PN1500
Yes. And I take you to the second paragraph, where it states:
PN1501
It is with great pleasure that I would like to invite to take up total -
PN1502
I think it is supposed to invite you, I think, but:
PN1503
- to take up total employment cost TEC salary packaging and an associated individual employment agreement.
PN1504
And then we have attached to that an example of an employment agreement, which states in the first paragraph that:
PN1505
This employment agreement replaces all existing individual agreements, arrangements or understanding between you and ANZ.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1506
And has attached to it schedule A, remuneration and entitlements, and a sample of - without obviously the figures - but an example of the TEC, the sort of attachment that would be in there without the figures. Then we go to CCB6, which should follow, and which sets out all the questions and answers about the total employment cost and individual employment agreements. Now, isn't it correct that the offers that were made to group 3 managers, or levels 3 branch managers, were different in nature to the offers that were made to group 4 managers in November 2000, in that the offers that were made to group 3 managers, one involved the introduction of TEC, and two, there was no reference to redeployment and retrenchment in the individual employment agreements in terms of - I should qualify that - in terms of the enterprise agreement provisions as there are in group 4; is that correct?---I am not quite sure what you are asking me now.
PN1507
The question; the offer that was made to level 3 branch managers in July 2001, that offer, did it not involve the introduction for the first time of TEC to group 3 branch managers?---Level 3 branch managers did not previously have access to total employment cost packaging, and part of the reason for the request from branch 3 managers - - -
PN1508
No. Could you answer the question. Was the offer that was made to branch managers, level 3, was that offer concerned with the introduction of TEC for branch managers, level 3, for the first time?---As I have answered, it included that.
PN1509
Yes. Did the offer that was made to branch managers, group 3, include any provision which varied the redeployment and retrenchment provisions of the enterprise agreement?---No, it did not.
PN1510
So it would be fair to say, would it not, Mr Baker, that the nature of the offer that was made to the group 4 managers in November 2000, is different to the offers - I will retract that. The nature of the offer that was made to the branch managers, level 3, in July 2001, is different to the offers that were made to the group 4 managers in November 2000?---Not materially.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1511
Mr Baker, I will go through it again. Is it not correct that the offers that were made to branch managers, level 3, in 2001, were concerned with the introduction of TEC to this group for the first time, and secondly, they did not have any provisions about the R and R provisions except as they applied under the EB, whereas the offers that were made to the group 4 managers in November 2000, had sought to change the R and R provisions as they apply to group 4, and they were not concerned with the introduction of TEC, as that had been introduced back in 1994; is that not correct?---I cannot give a yes or no answer to that question.
PN1512
Well, Mr Baker, I put it to you that the offers that were made to group 4 managers in 2000, were of a different nature to the offers that were made to branch managers, level 3, in 2001, and I put it to you, and I have put it to you that your documentation supports that description?---You have put that to me, and I have said I don't believe they differ materially.
PN1513
THE SENIOR DEPUTY PRESIDENT: That is what the witness is saying, there is no doubt about that.
PN1514
MS MALONEY: That is right. Now, Mr Baker, the next part I go to is paragraphs 21 to 25 of your witness statement.
PN1515
MR McDONALD: Could I inquire as to what time your Honour had in mind extended sitting, and how much longer my friend is going to be? It is just that if Ms Maloney is going to be quite some time, perhaps there is not much point sitting on.
PN1516
THE SENIOR DEPUTY PRESIDENT: Yes. We will deal with that first. Any idea how long you are likely to be?
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1517
MS MALONEY: Sir, well, I intend to take Mr - I can advise the Commission I intend to take Mr Baker through - your Honour, we are prepared to go till five, because I am conscious of the fact - and I appreciate, I am not criticising, but I appreciate it was due to the unavailability of our witness, so I don't - but I am just wondering if there is any possibility we could go through till five, or not?
PN1518
THE SENIOR DEPUTY PRESIDENT: Well, I am rather keen, subject to your convenience, Mr McDonald, to go to five, in order to make sure that we don't get hung up tomorrow.
PN1519
MR McDONALD: That is no issue as far as my convenience is concerned, your Honour.
PN1520
THE SENIOR DEPUTY PRESIDENT: Very well. Well, that is what we will do. It will be five, Ms Maloney, it won't be a minute past.
PN1521
MS MALONEY: Yes, that is all right.
PN1522
Now, Mr Baker, I take you to paragraphs 21 to 25 of your statement. Now, in this part of your statement you state that:
PN1523
The reasons level 3 branch managers had not previously been offered TEC packaging was because of a quirk in the Hay job evaluation methodology, which led to branch managers positions being classified as group 5, level 3, rather than group 4 category A.
PN1524
Further you state, and this is particular paragraph 24, that:
PN1525
The reasons offers of TEC packaging had been limited to staff in group 4 and above was because until fairly recently ANZ had not engaged staff in manager positions below group 4.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1526
And then you go on to state in paragraph 25, that:
PN1527
The evaluation of branch management roles as group 5, level 3, has been a fairly recent phenomena, and the classification of group 4 category AA, or the creation of that classification was instituted to address this anomaly.
PN1528
Is that correct?---There were a lot of statements there, but yes.
PN1529
That is your statement I am just reading from?---You are stringing together a whole lot of statements, makes a single response difficult.
PN1530
Okay. Mr Baker, are the statements contained - you have been asked by Mr McDonald whether the statements contained in your witness statement is true and correct. I understood the answer to that was yes?---That is correct.
PN1531
And that is still the answer?---That is still the answer.
PN1532
Thank you. Now, I take you to annexure B and annexure C - annexure B, I should say, to the FSU statement, a submission in reply, your Honour. Do you have that or not?---No, I don't.
PN1533
You don't?---I don't. You handed me up annexure A previously, and I handed it back.
PN1534
Okay. Well, this is annexure B?---Thank you.
PN1535
And I refer you to annexure B. Your Honour, do you have annexure B?
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1536
THE SENIOR DEPUTY PRESIDENT: It begins with reports to all ANZ members?
PN1537
MS MALONEY: Yes, that is right. Attached to it is a report to all ANZ members, dated 28 October 1994, then an ANZ document dated 2 June 1994, and then following from that is two pieces of correspondence, one from ANZ to Ann Beck, dated 14 July 1992, and the other one is from ANZ to Ms Beck, dated 12 November 1992. They are the three sets, I suppose.
PN1538
Mr Baker, I refer you to annexure B, and firstly to the first document, which is a copy of FSU report to ANZ members, dated 28 October 1994, regarding to regrading of senior service adviser positions in the Brisbane/Gold Coast zone, and that document refers to a new three tier classification of grade 3 and 4, and level 1 for SSA staff, SSA staff being senior service advisers. And now under this review, or as a result of this review, senior service advisers were now to be graded according to the size of the branch. And then the document sets out, I suppose in tabular sort of form, the scale of branches referred to in the document, and they refer to, well, including a medium branch, where it is indicated that the manager levels could be level 3/cat A, and there is a reference also to a small branch with a management level, level 2/3. I also take you to the next document, an ANZ document dated 2 June 1994, titled, sales and service functions, senior service adviser and service adviser positions. And it refers to the senior service adviser levels being benchmarked to branch managers post levels, and once again this document refers to branch managers classifications including level 2 and level 3, as well as group 4, category A, B and C. And I take you to the last two documents. The first one is a copy of correspondence from ANZ to And Beck, dated 14 July 1992, confirming her appointment as branch manager, graded level 3, to be located at Albert Park, Melbourne, and then further correspondence from ANZ to Ms Beck, dated 12 November 1992, outlining the details of her new position and advising her job title or job level is branch manager, level 3. So I put to you, Mr Baker, it is clear from those documentation that the position of branch manager, or branch manager role, have been classified at level 3 since at least 1992?---I can concede that there is - I am not well informed in relation to that. I am not sure I can agree that there have been branch managers classified at that level since 1992, because I do know that there are now no level 2 positions. There may at some stage be no level 3 positions, but I certainly can't attest to that. My statement is misinformed.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1539
Right. So is that what you say in respect to all the paragraphs relating to that in respect to 21 to 25?---I am saying in relation to my statement that the classification of any branch managers at level 3 being a recent phenomenon, is clearly inaccurate.
PN1540
Thank you. If I take you to paragraph 29, in paragraph 29 you say that:
PN1541
It would be unsustainable to have managers working side by side but under fundamentally different forms of terms and conditions, and that those conditions being, ie, one working and being remunerated on the basis of TEC, and the other working and being remunerated on a more traditional award basis.
PN1542
Is it not the fact that there are already groups of managers who work side by side on different forms of conditions? And I refer you to groups 1, 2 and 3, in terms of their award conditions, and group 4 managers in respect to their award conditions?---The terms and conditions of group 4 managers are different to those of group 2 managers.
PN1543
Thank you. Just one more question I should ask, sorry, in respect to paragraph 29. Are you aware of any employees who are paid on the minimum award salary provisions, the minimum rate within the award?---No.
PN1544
Now, just in respect to clause 30, you state that:
PN1545
Concepts such as overtime, RDOs and annual leave loading have a legitimate role in the regulation of employment conditions of staff working in transactional operational roles.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1546
I put to you, Mr Baker, whilst that might be your view, that concepts such as overtime, RDOs and annual leave loading do have an important place in terms of forming part of the safety net award for employees, whether they are in management roles or non management roles. So in terms of, if a group 4 manager is not - sorry, if a level 3 branch manager is not on TEC, is it not correct that the totality of the ANZ award, with the exception of where a provision may not apply, the totality of the ANZ award forms their safety net as determined by this Commission in accordance with the Workplace Relations Act; is that correct?---Most certainly.
PN1547
Okay. And if a person goes onto TEC, currently that involves them being exempt from various provisions of the award, and the award as it currently stands sets out, I think it is 17 conditions in 6.2, in terms of what their new conditions would be; is that correct?---That is correct.
PN1548
So the totality of the award is the safety net, then gets reduced down to those 17 if they go onto TEC; is that correct?---That is correct.
PN1549
Now, in paragraph 36 - before I go to that one, sorry, I missed one that I should have picked up. I apologise for that. Sorry, 36, I will take the 36 first, sorry. In that you state that it is regarding the notice, or the period of time, I should say, that employees are provided to consider the offer, and you refer to the seven days that is contained in the individual employment agreements, and I think they were attached, and I think they were ones relating to group 3 and 4, but they are definitely contained in there. But you state that what ANZ applies in practice means that in practice employees might be able to - the ANZ is prepared to extend that period beyond seven days if a request is made. On the basis of your evidence, which I will come back to, that it is ANZs policy that promotion to those manager positions be conditional upon acceptance of TEC packaging, it really doesn't matter how much time you give employees to consider whether they are going to accept a package or not, is it? It doesn't matter if you give them seven days, two weeks or 12 months. If they don't accept the package they don't get promoted; isn't that correct?---The offer is made of a contract in total for promotion to a management position, and the entirety of that contract is an accept or not accept basis.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1550
Yes. So if they don't accept the offer they don't get the promotion?---That is correct.
PN1551
And that is the case whether it is seven days they are given or 14 days?---That is true. They have a choice as to whether they want to become a manager, and the terms and conditions available at ANZ, or whether they don't.
PN1552
Just on the ANZ survey, is it correct to say that that survey is distributed to staff through MAX, which is ANZs intranet site?---It is.
PN1553
All right. And when a staff member responds to that survey, can that response be identified by work location?---Not by ANZ.
PN1554
When a staff member responds to something through MAX, whether it is that survey or an e-mail, when the staff member responds does that response identify work location?---It identifies the individual.
PN1555
All right, thank you?---Not and the work location, the individual.
PN1556
The individual?---But the routing of the staff surveys, whose responses go directly to the provider, the external provider.
PN1557
Now, if I can take you to, firstly, in the submissions or statements, or part of the examination today, it has been put by ANZ as part of the cross-examination of FSU witnesses, that if the bank gave a commitment to not extend TEC packaging to beyond branch managers who are classified as level 3 pursuant to the Hay methodology, would that reduce the FSUs concerns? And so what the ANZ said, that is a commitment that they are prepared to give. The question I have to you, that based on that commitment that they have indicated that they are prepared to give to not extend TEC packaging beyond that group, I take you to paragraph 42 of your statement, where you state that:
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1558
As a result of the creation of a category AA management classification in July 2001, and as of July 2001 no management positions will be classified as level 3. Instead of being level 3 management positions, such positions will be classified as group 4, category AA positions, and will be offered to employees conditional upon acceptance of TEC packaging.
PN1559
Doesn't that statement basically make the commitment that ANZ has put or referred to today as meaningless?---My statement should, indeed, read, no branch manager positions, and that is what has been occurring, and it has been the intent throughout. So that should read, no branch manager positions.
[4.40pm]
PN1560
THE SENIOR DEPUTY PRESIDENT: Will be classified as level 3, it goes in there?---Yes, that is right.
PN1561
MS MALONEY: So no branch manager positions will be classified as level 3?---That is correct.
PN1562
Let me clarify this because I want to be clear on this. The commitment that was put by ANZ was that if we do not extend TEC packaging to branch managers who are categorised according to Hay methodology as level 3, that is a commitment that they are prepared to put, right. My question to you is, how can such a commitment - I will retract that. I would put to you, that commitment is inconsistent with the statement you have got in paragraph 42, and put elsewhere in your statement, that the only management positions that will be offered at that level will be to category AA, there would be no management positions offered to level 3; that is what your statement says?---Yes. It is one and the same thing. I think as had been offered on a without prejudice basis before this case, ANZ, in order to resolve this, was prepared to say we do not, if we resolve the matter, intend to extend the offer of individual employment agreements and associated TEC to any other category of employee at Hay classification L3 or below, that we would confine the process of category AA to branch managers and branch management positions alone.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1563
Right. And just for clarification, those positions, will they now be classified as group 4, category AA positions, as your statement suggests?---That is correct.
PN1564
Now, I take you to paragraph 46 of your statement, in which it is your evidence that:
PN1565
It has been ANZs practice -
PN1566
At the top of page 15:
PN1567
- since the introduction of TEC packaging for group 4 employees in 1994, and for that matter for employees classified in group 3 and above since 1992, to make promotion to managerial group 4 positions condition upon acceptance of TEC packaging.
PN1568
I take you also - I think it is attached to your statement - the memorandum of understanding?---Yes.
PN1569
That is also attached to your statement?---Is the MOU attached to my statement?
PN1570
Yes, it is, I think so. It was in our book. Now, the memorandum of understanding which has been referred to, and was applied to group 4 managers, category A-E, set out certain conditions regarding the introduction of TEC, and one of those conditions is set out in clause 5, opting back to award conditions, which is:
PN1571
A manager may, on a once only basis and within two years of electing to accepting TEC, opt out of TEC and return to full award conditions at a level commensurate with their grade and notional salary.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1572
So those who accepted TEC could opt back to the award on a once only basis and within two years of electing to accept TEC. Now, if I take you to the enterprise agreement, and I think we gave you a copy of the enterprise agreement, and I take you to clause 7.6. Just before I go to that, if I can just clarify, as is clear in the memorandum of understanding under clause 2, that TEC was available for managers, category C, D and E, with effect from 1 October 1994, and for managers, category A and B, from 1 October 1995. Now, in 7.6 of the enterprise agreement it states that, third dot point down:
PN1573
Staff employed or promoted following the certification of this agreement, who accept TEC packaging, will not be entitled to opt back to award provisions.
PN1574
Now, the question I have got, Mr Baker, is this. If ANZ has been applying a policy of making TEC conditional upon acceptance - sorry, making promotions or appointments to those positions conditional upon acceptance of TEC packaging, the first question I ask is, to whom does clause 5 of the MOU - sorry, the opting back award conditions apply to?---Managers accepting TEC.
PN1575
All managers?---This is - - -
PN1576
Group 4, sorry?---The memorandum was specifying the roll out of total employment cost packaging to managers from October '94 and from October '95, significant offers made at that time and with people having the two years in which to opt back.
PN1577
Group 4, we are talking about group 4, category A here, we will use that when I use the word managers, so managers, group 4, category A to E, any manager in that category who accepted TEC had the ability to, within two years of accepting TEC, to opt back to full award conditions, that is, go off TEC and then go back to your full award conditions?---That is correct.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1578
Right. Now, if that is the case, a manager had the ability to opt back, that is, the manager had the ability to elect not to continue on TEC, then how can TEC be conditional upon being appointed as a manager?---For the reasons I explained earlier, as a total managerial contract offering of which TEC was part.
PN1579
Yes. In 1994, when TEC was introduced for group 4 managers, and it was clear from the MOU that a decision to accept it was entirely voluntary, and if managers accepted TEC, according to the document they could accept TEC at any time. There was, as we recall, I think it was if they accepted within two months that it had been offered, and it was going to be back dated for them, but the communication which is attached to your statement made it clear that, well, if you decide, you can decide and accept it at any time in the future, but if you did accept it by, I think it was February 1995, in respect to the category C, D and E, and probably a similar thing in respect to A, B, it would be back dated to the October '94, I think, October '95 date. But it is quite clear in the communications that you could accept it at any time. And if you accept it, and then subsequently decide, for whatever reasons, you don't want to stay on it, you want to opt back to the award, you could do that once you could only do it once within the two years upon which you elected to accept TEC. So if I was a manager in ANZ in October 1994, and I was a category A, group 4, category A - I want to make sure I get the right ones here - category C, probably, because that was '94, I could elect to go onto TEC under the MOU?---You could.
PN1580
From 1 October 1994; is that correct?---You could.
PN1581
If I elected to do that, to go onto TEC, and then 12 months later I applied for a promotion to category D, and I was still on TEC at that time, but at that time I did a review and I decided to opt out of TEC, would I still have got the promotion?---Opting out of TEC would have remained available to you. The fact of the matter was, that the terms of total employment cost packaging are so lucrative relative to the other terms that people chose not to opt back, which is why the FSU and the ANZ reached agreement to that effect in 1998.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1582
The question I have, did managers in group 4 have the ability to decide to opt back?---Yes.
PN1583
That is right. Now, if that is the case, how then could an appointment to a management position, even on your appointment, to make it clearer, say, if I joined ANZ in 1995, so, you know, and I was appointed to a category group 4, category A to E in 1995, when TEC was operating, and I decided not to take TEC, or I was - - -?---You would have been appointed on the basis of TEC, because that is the basis of ANZ remuneration for managers, and if you had had experience of that and opted not to stay on TEC, then you would have been able to opt out.
PN1584
I would be able to opt out. So if I had been appointed and I was able to opt out, then if that is the case how can you say that if people have the ability of being able to go onto TEC or not go onto TEC, because an opting out provision only comes into effect if you do something, how do you make it conditional?---I have sought to explain the logic. Promotion, accepting of the entire package is the managerial deal. There was a provision for opting out, which was removed in 1998.
PN1585
Yes, all right. In terms of 1998, if I take you back, staff employed or promoted following the certification of this agreement who accept TEC packaging will not be entitled to opt back to award provisions?---And you will note that managers, category A and B, which were the second roll out, were made that offer in October 1995. So we had had several years of experience of TEC without the requirement to opt out, which is why the parties were able to reach this agreement.
PN1586
But in terms of the provision of the agreement, it states:
PN1587
Staff employed or promoted following the certification of this agreement -
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1588
?---Yes.
PN1589
Following. So that is after - the date of certification was 1998, so anyone promoted or appointed after that date no longer had the ability to opt out of TEC?---That is correct.
PN1590
Well, I put to you that the opting out provisions in both the memorandum of understanding and the opting out provisions in terms of the enterprise agreement are inconsistent with ANZs claim that acceptance of TEC has been compulsory or conditional for promotion since 1994, because a concept that makes a condition compulsory is inconsistent with a system of opting out. So I put to you that the provisions of the MOU, and also the fact that the MOU makes it quite clear - and I refer you to clause 2 - that the decision by individual managers whether or not to accept the offer of TEC will be entirely voluntary, and no pressure will be applied by ANZ for any managers to accept TEC, and that the evidence by you, or the claims by you that it has been compulsory since 1994, are inconsistent with those provisions?---On each occasion that somebody was promoted into group 4 they were offered a set of terms and conditions which included TEC.
PN1591
Mr Baker, I take you to paragraph 43D of your statement. It is claimed there that no overtime payment for - sorry, management staff are not eligible for and not paid overtime payments under clause 21(1) of the ANZ award. That is not correct, is it? I mean, I take it the ANZ award, clause 21(1) - have you got the award there?---Yes.
PN1592
MR McDONALD: I believe this is the subject of correspondence, this point, to the Commission and the union yesterday.
PN1593
THE SENIOR DEPUTY PRESIDENT: Correcting the reference.
PN1594
MR McDONALD: Yes, your Honour.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1595
MS MALONEY: Your Honour, the correction only goes to their submissions, not to the statements.
PN1596
MR McDONALD: It is the same point.
PN1597
MS MALONEY: Your Honour, the correction goes to the submissions, not the statement.
PN1598
THE SENIOR DEPUTY PRESIDENT: Yes. But if it appears somewhere else, I will have to take notice of that.
PN1599
MS MALONEY: I also refer you to paragraph 41, you are referring to Ms Noye's statement, and you state that, regarding the position of one of the members, that:
PN1600
Based upon the figures provided we have deduced that this was a part-time level 3 position, that she was paid more in her prior position than she was once she accepted the category AA position.
PN1601
Ms Noye, as you are probably aware, has submitted a supplementary statement, witness statement, and has given evidence that the position was, in fact, a full-time level 1 position. What do you now say about that deduction?---They are required to make a deduction that were unspecified from the numbers, I deduced it was a part-time level 3. And if Ms Noye says that was incorrect, then it was incorrect.
PN1602
THE SENIOR DEPUTY PRESIDENT: If you are starting a new line, Ms Maloney, I think we might adjourn now.
PN1603
MS MALONEY: Your Honour, I think I am finished at that point, thank you.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1604
THE SENIOR DEPUTY PRESIDENT: I am sorry, did you say you were finished?
PN1605
MS MALONEY: Yes, concluded, I should say.
PN1606
THE SENIOR DEPUTY PRESIDENT: But re-examination will be tomorrow, Mr McDonald.
PN1607
MR McDONALD: Yes.
PN1608
THE SENIOR DEPUTY PRESIDENT: A starting time, 9.30?
PN1609
MR McDONALD: Well, I must say I would prefer 10.30, your Honour. There is a bit of work to be done, at least at this end of the bar table.
PN1610
THE SENIOR DEPUTY PRESIDENT: Well, it is anticipated that submissions will be completed tomorrow, isn't it?
PN1611
MR McDONALD: Absolutely. I, for my part, I certainly won't be more than an hour and a half with submission, and I won't be more than 15 minutes in re-examination, I wouldn't think.
PN1612
THE SENIOR DEPUTY PRESIDENT: Can I compromise. 9.30 is my travelling time to start, but 10 o'clock?
PN1613
MR McDONALD: 10 o'clock, yes, thank you.
**** CHRISTOPHER CHARLES BAKER XXN MS MALONEY
PN1614
THE SENIOR DEPUTY PRESIDENT: Very well, I will adjourn further proceedings in this matter until 10 am tomorrow morning.
ADJOURNED UNTIL THURSDAY, 21 NOVEMBER 2002 [5.00pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
CATHERINE ANNE NOYE, SWORN PN877
EXAMINATION-IN-CHIEF BY MS MALONEY PN877
EXHIBIT #M10 STATEMENT OF CATHERINE NOYE, DATED 28/08/2002 PN885
EXHIBIT #M11 SUPPLEMENTARY STATEMENT OF CATHERINE NOYE, DATED 19/11/2002 PN891
CROSS-EXAMINATION BY MR McDONALD PN899
RE-EXAMINATION BY MS MALONEY PN1089
WITNESS WITHDREW PN1143
ANTHONY JOSEPH BECK, AFFIRMED PN1150
EXAMINATION-IN-CHIEF BY MS MALONEY PN1150
EXHIBIT #M12 STATEMENT OF ANTHONY BECK, DATED 28/08/2002 PN1158
EXHIBIT #M13 SUPPLEMENTARY STATEMENT OF ANTHONY BECK, DATED 19/11/2002 PN1164
CROSS-EXAMINATION BY MR McDONALD PN1175
RE-EXAMINATION BY MS MALONEY PN1274
WITNESS WITHDREW PN1315
CHRISTOPHER CHARLES BAKER, AFFIRMED PN1324
EXAMINATION-IN-CHIEF BY MR McDONALD PN1324
EXHIBIT #P2 STATEMENT OF CHRISTOPHER BAKER PN1329
CROSS-EXAMINATION BY MS MALONEY PN1334
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