C2003/1568, Transcript of Proceedings [2003] AIRCTrans 1444 (16 April 2003)

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:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N VT2226
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2003/1568
C2003/1572

COMMUNITY AND PUBLIC SECTOR UNION

and

DFP RECRUITMENT SERVICES PTY LIMITED
and ANOTHER

Notification pursuant to section 99 of
the Act of a dispute re hours of work,
payment of shift penalties and consideration
of workers with family responsibilities
at Gillies Street, Ballarat Call Centre

APPLICATION FOR AN AWARD

Application pursuant to section 111(1)(b)
of the Act by the CPSU re changes to shift
arrangements at Telstra's call centre at
Ballarat, Victoria

MELBOURNE

10.10 AM, THURSDAY, 3 APRIL 2003

Continued from 27.3.03

PN335

THE COMMISSIONER: Is there any change of appearances?

PN336

MR V. GOSTENCNIK: Yes, if the Commission pleases, I seek leave to appear for DFP Recruitment Services Pty Limited in place of Mr Eberhard.

PN337

THE COMMISSIONER: Mr Gostencnik, thank you.

PN338

MR M. McDONALD: If the Commission pleases, I seek leave to appear on behalf of Telstra.

PN339

THE COMMISSIONER: Thank you, Mr McDonald. Any objections to the applications for leave?

PN340

MR JONES: One objection, your Honour. Leave was granted to Mr Eberhard and I understand that my friend replaces Mr Eberhard so I don't that I have got any grounds on which that I can object, having conceded that - - -

PN341

THE COMMISSIONER: I don't know whether or not - was leave granted to Mr Eberhard? He was an employer organisation I think.

PN342

MR JONES: Yes.

PN343

THE COMMISSIONER: And the member of an employer organisation. I see. Anyway - - -

PN344

MR JONES: My understanding and I am advised - my understanding is that leave is granted - - -

PN345

MR McDONALD: No, he just appeared, Commissioner.

PN346

THE COMMISSIONER: Yes. I thought he just appeared.

PN347

MR JONES: We say - we say, Commissioner, that in relation to the application by Mr McDonald to appear on behalf of telstra we oppose it.

PN348

THE COMMISSIONER: Yes.

PN349

MR JONES: We oppose it without having heard any of the grounds upon which Mr McDonald appears - appears or seeks leave to appear, but we simply say this. On the face of it none of the requirements of section 42(3) have been met by Telstra in this case.

PN350

We note Ms Kennedy, who appeared on behalf of Telstra, is today present in the Court room. On our view Ms Kennedy who is an employee of Telstra and has automatic standing to appear here today can adequately represent the employer and we see no leave - we see no reasons why special circumstances should warrant Mr McDonald's leave being granted here today. We say that without having heard anything from Mr McDonald and reserve our right to put anything in reply to what Mr McDonald may wish to say.

PN351

THE COMMISSIONER: Thank you. Mr McDonald, how can I be assisted greatly by your application?

PN352

MR McDONALD: Do you wish to hear from me, Commissioner.

PN353

THE COMMISSIONER: Yes.

PN354

MR McDONALD: Yes. Now, during the course of last week's proceedings, there was an exchange between yourself and Ms Kennedy beginning at about paragraph 170 of the transcript.

PN355

THE COMMISSIONER: Yes.

PN356

MR McDONALD: And, Commissioner, you were raising with Ms Kennedy some of the difficulties involved in questions of dispute finding applications against non employers - issues of level of control, and the like, and your Honour - Commissioner, referred to the Fitzsimmons case at one point in time.

PN357

Your Honour, the Commissioner observed at paragraph 178 you did say:

PN358

These are tricky questions not insignificant questions.

PN359

THE COMMISSIONER: Yes.

PN360

MR McDONALD: Now, if I may say so, Commissioner, that's a - you've hit the nail right on the head. The issues raised by these proceedings and in particular from Telstra's perspective, the finding of a dispute against Telstra in its capacity as a non employer raised complex questions and very significant questions for the organisation.

PN361

The position is, Commissioner, that I have instructions to make an application to seek a revocation of the dispute finding that you have made insofar as it relates to Telstra. I appreciate that the matters listed today for the purposes of conciliation and it is not Telstra's desire to be a spoiler in terms of any potential conciliated outcome - - -

PN362

THE COMMISSIONER: If we can conciliate otherwise, we have to go on.

PN363

MR McDONALD: If we have to go on - - -

PN364

THE COMMISSIONER: Yes.

PN365

MR McDONALD: - - - and indeed the position is that the Commission does have to go on, then we would wish to press for an application to revoke the dispute finding in relation to Telstra.

PN366

THE COMMISSIONER: Yes.

PN367

MR McDONALD: Bolton J, in the Ansett proceedings, I think at paragraph 46 of the decision, Commissioner, noted that it is often the case that matters come before the Commission where there is an application under section 99 and an application for finding of dispute and that there is an element of urgency about the proceedings, which requires the Commission to make a finding of the dispute on the basis of the evidence before it. It has to do the best it can and that is consistent with the statutory regime.

PN368

However, his Honour, noted that that is subject specifically to the right of a party to seek to revoke a dispute finding on the basis of further evidence. Now, Telstra, if we get to that point, Telstra would wish to lead further evidence going specifically to the relationship between Dorothy Farmer Personnel and Telstra, and we would wish to lead that evidence for the purpose of putting to you, Commissioner, a submission that Telstra as a non employer does not fit within that class of non-employers in respect of whom a dispute finding can be made, consistent with the - particularly consistent with the reasoning of a Full Bench decision in Gate Gourmet.

PN369

THE COMMISSIONER: Yes.

PN370

MR McDONALD: And in particular, Commissioner, the submission that I would put to you in relation to Gate Gourmet is that that case stands for the proposition that consistent with the decision of the High Court in Shell, a dispute finding can only be made against a non employer in circumstances where, and I am quoting from paragraph 36 of the decision in Gate Gourmet, where the members of the Full Bench said:

PN371

It can be seen from this passage that the High Court -

PN372

that is in Shell -

PN373

regarded it as significant when seeking a dispute finding against a company that is not an employer that: 1. the body against whom the finding is sought is in a position - the course of the relevant corporate; and 2. the course of its powers and rights with respect to an integral aspect of the subject matter of the dispute to directly affect the relationship of an employer and employees.

PN374

Now, we make no criticism at all, Commissioner, but the simple fact of the matter was because of the urgency with which the matter came on before you, and because you had a registered organisation pressing for a dispute finding, Telstra wasn't in a position to lead evidence in relation to those criteria.

PN375

THE COMMISSIONER: You make the assumption that the dispute finding is confined to a proposition that you advanced that Telstra is a non employer. It is an employer and it choses to roster persons at certain times. That issue was also raised with Ms Kennedy.

PN376

MR McDONALD: Well, that is another matter about which I would wish to make some submissions, and that is matter about which our evidence will go to, Commissioner.

PN377

THE COMMISSIONER: Yes.

PN378

MR McDONALD: It will go directly to that matter.

PN379

THE COMMISSIONER: I am just alerting you to the fact that it may not be as narrow as you suggest it is.

PN380

MR McDONALD: Indeed, Commissioner, it may even be trickier than I had initially - - -

PN381

THE COMMISSIONER: Anticipated.

PN382

MR McDONALD: - - - contemplated. I am giving force to my application for leave to appear. That this is - this is a significant matter and it is a complex matter and it is matter in respect of which both out of fairness to Telstra, having regard to the circumstance in which the case was heard last week, its incapacity to lead evidence which is directly relevant to the question of the Commission's jurisdiction and also - - -

PN383

THE COMMISSIONER: There was no application to lead evidence.

PN384

MR McDONALD: I am not - I am not making any criticism, Commissioner, I am simply - I am simply saying that we have had the opportunity - I am not - - -

PN385

THE COMMISSIONER: I am sorry, you - forgive me for being sensitive about matters that might go on transcript.

PN386

MR McDONALD: I haven't raised - I haven't raised the natural justice point.

PN387

THE COMMISSIONER: Yes.

PN388

MR McDONALD: I am simply putting to the Commission we have had the opportunity to look at the - look at the evidence, look at the cases, look at the test and we wish to be able to lead evidence which we say is directly relevant to the jurisdictional foundation.

PN389

THE COMMISSIONER: Yes, I follow.

PN390

MR McDONALD: - - - of the Commission proceeding. And we say, consistent with what Bolton J said in Ansett we should be - we should be permitted to do so.

PN391

If I can just actually refer to Bolton Js decision in Ansett. If you will just bear with me. This is in print 909513, it is a decision on 24 September 2001 at paragraph 46, third line:

PN392

In cases involving serious and urgent industrial disputes the Commission may need to make findings upon the basis of the evidence available so that it might proceed with endeavours to resolve the dispute with appropriate expedition. In these circumstances the Commission may need to vary or revoke the findings on the basis of further material or evidence presented in proceedings relating to the dispute. Subsection 101(1) provides for the Commission to vary or revoke any findings made in relation to the dispute, the parties to the dispute or the matters in dispute.

PN393

Now, you made it clear, Commissioner, in your exchange with Ms Kennedy this is an urgent matter. "I am being pressed by the registered organisation for a dispute finding." Now, it's on all fours with respect.

PN394

THE COMMISSIONER: Yes.

PN395

MR McDONALD: In my submissions, Commissioner, it is as clear a case as there can be for leave to be granted.

PN396

THE COMMISSIONER: Thank you. Mr Jones.

PN397

MR JONES: In relation to the application for revocation which is used as the basis upon which Mr McDonald seeks leave to represent Telstra, we would say this, that it is without notice and that's - that's relevant.

PN398

It's now seven days since you made your original finding. It was well within the capacity of an organisation the size of Telstra, with all the resources at its disposal to put both the parties and the Commission on notice that such an application would be brought forward and we would simply say that it tells against them that they have decided not to, but chose to both to ambush, if you like, the union to put the Commission in the position where if you like we were being ambushed with an application and that being used as leverage, or that being used as a reason why Mr McDonald should be granted leave to appear here today.

PN399

In relation to the revocation we simply submit that nothing in today's proceedings will disadvantage Telstra if the - if the revocation proceeding is adjourned and it is certainly our submission that any revocation proceeding should be adjourned. In support of - in support of the application that - the application that Mr McDonald makes on his feet before you today, or foreshadows - foreshadows because he hasn't been granted leave to appear, that we believe such an application should be properly made and in writing so that the parties are put on notice by it.

PN400

And it is also relevant in considering the submission, Commissioner, to refer you to the exchange that Mr McDonald has - has raised between yourself and Ms Kennedy as this seems to go to the heart of the grounds on which he seeks leave to appear. It appears in or around paragraph numbers 180 of the transcript of the proceedings. Might I allow the Commission the time to read paragraph numbers 180 through to approximately 187.

PN401

THE COMMISSIONER: Yes.

PN402

MR JONES: The Commission will recall this exchange dealt with a question of whether Telstra was in a position to control a requirement of rosters by Dorothy Farmer and you put squarely to Ms Kennedy, who represented Telstra at that point in time, that you sought an answer to that. And you gave her - indeed you adjourned proceedings - you adjourned proceedings, in my recollection, for at least one hour - at least one hour and Ms Kennedy came back and not a word was said about the question that you put to her.

PN403

In our submission, Commissioner, Telstra has had their opportunity to answer that question. They had - they were given - deliberately given by the Commission an opportunity to go away and seek instructions on the issue that you put to Ms Kennedy and chose not to, and we can only assume that they chose not to because the answer that they received when they sought instructions was not one which assisted their case.

PN404

So, we say that simply, Commissioner, to support our application, that if an application - it's well within Telstra's capacity to make an application to revoke or vary part of the dispute finding, if they seek to do that it should be done in the proper means by way of written application. They have had their opportunity to put those matters to you and declined, they should not be granted another opportunity to disrupt today's proceedings by adding additional representation to the proceedings and in any event, Commissioner, our submission is that - that the application shouldn't be heard today.

PN405

Can I deal with the issue of adequacy of representation. I have already noted that Ms Kennedy is here in the room and in the union's submission Ms Kennedy is both an able and an experienced practitioner in industrial law. She is quite a senior member in some of the professional associations to do with industrial and labour law. She is well briefed on the matters. There is no requirement in the Act, with the best of respect to Mr McDonald, there is no requirement in the Act that a party to the proceeding have the very best - the very best representation available that only that the representation be adequate.

PN406

THE COMMISSIONER: Mr McDonald is grateful for the characterisation.

PN407

MR McDONALD: I am blushing. I am blushing, Commissioner.

PN408

MR JONES: Yes, well there - - -

PN409

THE COMMISSIONER: He will review his fee structure instantly.

PN410

MR JONES: As a former officer of my organisation I feel obliged to make those comments about - - -

PN411

MR McDONALD: Although I have never had a brief from Mr Jones, I am sorry to say.

PN412

MR JONES: There is no requirement that the company have the best - - -

PN413

THE COMMISSIONER: Yes.

PN414

MR JONES: - - - representation possibly and Ms Kennedy, in our view, is well briefed and well able to represent the company.

PN415

THE COMMISSIONER: Thank you. Mr McDonald, what do you say about the notice point?

PN416

MR McDONALD: The notice point in terms of revocation?

PN417

THE COMMISSIONER: No, no. That - yes, yes, in terms of revocation giving notice to the union that this was a matter that you wish to raise.

PN418

MR McDONALD: Well, what we say in relation to that is that we have been working right up until late last night in the preparation of our material, that is what we say. It is not a simple point.

PN419

THE COMMISSIONER: No.

PN420

MR McDONALD: That's the short answer - it is the answer to the notice point, Commissioner. I should say this, Commissioner - - -

PN421

THE COMMISSIONER: It is not an unusual submission that I hear that somebody hasn't given notice of a matter and therefore outrage would follow if I were to permit the proceedings to continue in circumstances where they haven't had notice - even to some extent notice and outline of relief in writing.

PN422

MR McDONALD: Yes. Well, I accept that. Those observations have to be tempered against the fact that we are dealing with questions of jurisdiction.

PN423

THE COMMISSIONER: Yes.

PN424

MR McDONALD: The proceedings as they unfolded on 27 March were such that there simply wasn't an opportunity for Telstra to give consideration as we say it was warranted and as now underpins an application for revocation to matters going to the factual matters which go to the Commission's jurisdiction. It would be a futile - with respect, it would be a futile exercise for the Commission to proceed on an unsatisfactory jurisdictional foundation. It is only - - -

PN425

THE COMMISSIONER: Have you seen the draft order proposed?

PN426

MR McDONALD: The draft order proposed by the union?

PN427

THE COMMISSIONER: Yes. The Dorothy Farmer Fair Working Hours (Telstra) Ballarat.

PN428

MR McDONALD: Yes, yes, I have seen that. I have seen that. That is - - -

PN429

THE COMMISSIONER: Do you say that that impacts upon your client?

PN430

MR McDONALD: Most certainly.

PN431

THE COMMISSIONER: Yes.

PN432

MR McDONALD: That is an award made in part settlement of an industrial dispute which you have found Telstra to be a party to.

PN433

THE COMMISSIONER: Yes. And its terms, how does that impact upon -that part settlement, how does that impact upon - that part settlement, how does that impact upon your client?

PN434

MR McDONALD: With respect, the fact that the part settlement of the dispute does not directly impact on the company is only one part of the equation. The fundamental issue, Commissioner, is with respect Telstra is challenging the jurisdictional foundation for you to make that award.

PN435

THE COMMISSIONER: I see. I see. No, no. I understand.

PN436

MR McDONALD: And can I - can I say this again, with respect - - -

PN437

THE COMMISSIONER: Yes. You don't have to emphasise that, I am sure you are not about to insult me.

PN438

MR McDONALD: The observation that you make, Commissioner, how does that award affect you - dare I say it, it does rather give force to the whole foundation for the revocation application. How does this - how does the ambit of the dispute as found - - -

PN439

THE COMMISSIONER: Yes.

PN440

MR McDONALD: - - - very broad in its terms, it does go much, much further than it seems to be necessary for the purpose of settling the dispute. No reference in there to Telstra. It really goes to the fundamental question as where in the first place was Telstra a relevant party to this dispute for the purposes - - -

PN441

THE COMMISSIONER: Well, your proposition is deeper than that isn't it. You say that if I revoke the dispute, I revoke the dispute and I would have to find another one if I were to entertain an application like this.

PN442

MR McDONALD: No, no. No, with respect, you can simply get your red pen - - -

PN443

THE COMMISSIONER: And cross out Telstra.

PN444

MR McDONALD: You can vary the dispute finding and you can make the Dorothy Farmer award in the terms sought, no prejudice at all - - -

PN445

THE COMMISSIONER: Yes.

PN446

MR McDONALD: - - - to Mr Jones. So he is - he is bereft of an argument.

PN447

THE COMMISSIONER: But in terms of urgency - - in terms of urgency if that be right how does then the part settlement of the dispute which might impose obligations upon one of the parties to the dispute impact in an urgent matter in relation to your client?

PN448

MR McDONALD: In terms of urgency, Commissioner, as I understand the position and I know you haven't heard the parties in relation to this, but as I understand the position, Mr Gostencnik is proposing to put certain matters to you which would take the heat out of the matter to put it bluntly.

PN449

THE COMMISSIONER: Yes.

PN450

MR McDONALD: Which will protect the position of the relevant employees insofar as there is a concern on the part of the union that their interests might be prejudiced and which proposes a timetable - in the interim period proposes a timetable for directions in relation to steps taken in - prior to their being an arbitration of the matters in dispute.

PN451

Now, the application for revocation could be dealt with conveniently or could be timetabled conveniently within the umbrella of that which Mr Gostencnik is proposing.

PN452

THE COMMISSIONER: Yes.

PN453

MR McDONALD: So there is going to be - again there is going to be no prejudice at all to Mr Jones - of course you haven't heard from Mr Gostencnik but subject to all of that there is going to be no prejudice to Mr Jones or his members by allowing the revocation application to proceed in that way and indeed he will have more than ample notice of it. He will be provided with the relevant material which we rely upon.

PN454

THE COMMISSIONER: Yes. Thanks, Mr McDonald. Well, without reflecting in either a negative or positive capacity on anybody's reputation I grant leave. Now, is conciliation at an end?

PN455

MR JONES: If the Commission pleases I wish to make some brief submissions and the force of these submissions - - -

PN456

THE COMMISSIONER: I am sorry, I should have added I also grant leave to Mr Gostencnik.

PN457

MR JONES: For the record I don't believe that I opposed leave for Mr Gostencnik. If conciliation is not at an end it is certainly been frustrated enormously by the actions and behaviour of the employer respondents.

PN458

We attended a conference in good faith and put proposals to the company and these meetings occurred on Tuesday, an offer of a second meeting was made yesterday but that offer was not taken up. There has been no response as yet to our concrete proposals for the resolution. In the meantime we wish to advise that, in our submission, there have been other attenuating factors which if anything have made the resolution of this dispute by way of conciliation more difficult as opposed to more easy - more easier.

PN459

First, could I provide the Commission with a copy of an electronic mail message that was circulated to Dorothy Farmer Employees and Telstra Employees on 31 May. I ask that the Commission mark this for reference purposes.

EXHIBIT #CPSU4 E-MAIL DATED 31/3/2003

PN460

MR JONES: Commissioner, we submit that this is an electronic mail that was sent to all employees at the Ballarat Telstra site by the manager of that site who is Mr Anthony Tigchelaar and that the person that we understand to be the Dorothy Farmer senior manager at that site, Mr Markus Schneefuss. Has the Commission had the opportunity to read it?

PN461

THE COMMISSIONER: Yes.

PN462

MR JONES: We say that, in the context of this dispute, whether or not the direction and the implied threat within the direction is lawful, is one question perhaps not to be determined here today, but it is certainly a frustrating point and in our submission, Commissioner, at complete odds with the directions that you gave the party and the undertakings the party has made the last time they were together.

PN463

The CPSU, for the purpose of holding conciliation meetings with the company, sought to seek advice - not evidence, sought to seek advice on the factual circumstances of individuals and some advice on how we might be able to settle this dispute by way of - by way of conciliation and to do that we gave the proper notification to attend the site as required by section 285D of the Workplace Relations Act.

PN464

The Commission can see the response. Not only have the companies combined themselves to frustrate those attempts but they have actually given directions to their employees that they are not entitled to go and speak to their union representative when they are attended on site.

PN465

Now one can only speculate on what advantage accrued to Telstra to direct Dorothy Farmer and to direct Dorothy Farmer's employees that they were not entitled and moreover were not allowed to go and speak to their union representative in the course of this dispute.

PN466

We say it certainly colours the water. It certainly colours the context in which Mr McDonald makes his submissions or foreshadows his submissions that there is no relationship between the two companies. Indeed, this completely separate employer, who has absolutely no control or authority over the employees of the other completely separate employer were sending directions to who they may or may not go and talk to during their own lunch breaks - during their own lunch breaks.

PN467

Absolutely no impact or no affect to this completely separate employer. No interruption to the work could occur to this completely separate employer, and yet they are directed that they are not allowed to go and talk to their union - their union representative. It certainly colours the dispute, Commissioner. There may be legal implications of it that the union is currently seeking advice on and we simply submit this. It really does help, in the context of conciliation that these two completely separate employers should seek to treat the union representatives who they are seeking to negotiate and conciliate with in good faith, in this fashion.

PN468

I am advised by my organisers, who attended the site, that they were also approached CPSU members who worked for Dorothy Farmer outside the site and advised that they weren't allowed to join the union or talk to the union representative and other comments were made to them in relation to the signing of the contracts which may well become subject of evidence if necessary before you, because they go to the heart of the merits of the application.

PN469

We bring this to the Commission's attention simply to make this point, that if conciliation is at an end then it has not been due to a lack of good faith or attempt by the union party representing employees here today, but by the behaviour of these two separate, completely separate legal entities, two completely separate legal employers who have no relationship with one another in the directions they have been giving to their staff and the behaviour they have shown towards the union representatives and, in our submission, towards the directions given by the Commission.

PN470

THE COMMISSIONER: Thank you. Mr Gostencnik?

[10.37am]

PN471

MR GOSTENCNIK: Sir, I might just briefly respond to some of the matters raised by Mr Jones. Firstly, in relation to the e-mail that has been marked CPSU4, we simply want it noted that it is an e-mail from a Telstra employee, not of our employee, although it has been forwarded on by one of our co-ordinators. But it is certainly not something that my client or those instructing me today, at least, were either aware of or took any steps to produce. As to any allegations that my client has advised its employees that they are not permitted to join a union or participate in union activities or in any other meet with the union, that proposition is flatly rejected and indeed it would be a breach of or possible breach of part XA of the Workplace Relations Act and it is not something or some such conduct that my client would engage in.

PN472

But, can I just say, sir, that it is our position that conciliation isn't at an end, despite what Mr Jones has to say. And in the course of negotiations there will invariably arise frustrations but the existence of frustration, itself, does not mean that parties are not able to reach an agreement about the subject matter of the dispute. You will have to excuse me, sir, I have got a bit of a cold.

PN473

THE COMMISSIONER: That is all right.

PN474

MR GOSTENCNIK: I am struggling along. Sir, there was a meeting which occurred on Tuesday. It was a meeting arising from the directions made by you on 27 March and during the course of that meeting there was discussion about a possible settlement and the terms of which I won't disclose since they were without prejudice discussions. But what followed was that a proposal was put to my client, in writing, by the union. Now, the proposal has many aspects to it, some of which my client needs to give some serious consideration to, in particular, the way in which implementation of any of those proposals might impact on its business. And, to that end, it is taking steps to consult with people on the ground, to determine whether or not it is in a position to agree to them or to propose a modification to them, that is, to the proposals.

PN475

Now, that process is a continuing one and we are more than happy once we have formulated a view and we anticipate doing so shortly, to engage in further discussions with the union about the proposal. We are not aware of any second invitation to meet. There was one meeting, it occurred on Monday - sorry, on Tuesday. Arising from that meeting was a proposal, the proposal or the union sought a response to the proposal by 5 pm, yesterday. Since we weren't in a position to respond in that time we wrote to the union to that effect and we told them that we weren't in a position and that we would respond as soon as we could.

PN476

Now, sir, the initial urgency of this matter arises in the context of the union having an apprehension that there might, as a result of the refusal to undertake alternative shift arrangements, that there might be a termination of the engagement of one or more of its members employed by my client at the Ballarat call centre. In addition to that, there were issues raised by the union about the adequacy of payment for shift work and so on, but those matters themselves are not urgent. What was urgent was the apparent threat of termination. Now what we say is, that we will be opposing the making of an interim award in the terms sought by the CPSU.

PN477

And there are many issues that arise for consideration, arising out of the union's application, not least of which is, what implication does the present application have on other proceedings which are before you which involve both the CPSU and my client. In those proceedings, as you will be aware, there has yet to be a dispute finding made and it seems to us, save for some modifications, that the remedy that the union is seeking is in terms substantially the same as that which it would get if a dispute finding were made in those proceedings and an award were made consistent with the telecommunications award. That is, the remedy that the union seeks is, with some modification, a reflection of clause 22 of the Telecommunications Award.

PN478

So what we propose, sir, is that the Commission set down a timetable for the proper determination of this application and in doing so we would give undertakings to the Commission that would alleviate the concerns which brought this matter to the Commission in the first place, as an urgent application. Now I might hand to the Commission, a copy of the proposed undertakings and directions that we seek be made.

EXHIBIT #E2 COPY OF PROPOSED UNDERTAKINGS AND DIRECTIONS SOUGHT

PN479

MR GOSTENCNIK: The first undertaking, sir, goes to the question of what happens to the employees who have not elected to work the new arrangements? And what we say is that we will not seek acceptances of any new assignment from any employee who had not, by 27 May which was the day on which the matter was in this Commission, who had not accepted a new assignment to work the new spread of hours. So that is the first undertaking we give. The second undertaking goes to the alleged threat of termination and we undertake not to terminate the assignment of any employee, in paragraph 1, for the reason that - or for reasons which include the reason that that employee refused to accept or failed to accept a new assignment.

PN480

Sir, the third undertaking we give is that we are mindful of the concerns raised by the union in relation to family responsibilities although, I must say, we are yet to receive any particulars. But we propose to establish a procedure where the employees, any employee who is working the new arrangements, may raise concerns about the requirement to work a particular shift or shifts and that we will consult with that employee about the concerns and that we will use our best endeavours to accommodate any such concerns. Now, sir, although that undertaking does not go as far as the relief sought in interim order because the relief sought in the interim order, at paragraph 4.2.5, requires that the employer consult the employee about such concerns and requires further that the employer shall accommodate the employees concerns in determining the roster.

PN481

Now it doesn't go that far. But can I say this, it goes further than the obligation which exists under clause 22 of the Telecommunications Award because clause 22.5.5 merely requires that or permits an employee to raise concerns due to personal or family circumstances and merely requires the employer to consult with the employee about such concerns, full stop. So the undertaking we propose to give is a half way house between the relief effectively the union is seeking in the other proceedings which would, if successful, bind my client, and the relief that it is seeking in these proceedings.

PN482

We will further establish a procedure, sir, that will cater for any employee who wishes to swap shifts with another employee. And again, that is not inconsistent with the relief that the union seeks in this matter and it is not inconsistent with the obligation which would exist if the Federal Award were made. Now, the terms of the draft order proposed by the union, make it clear that the obligations would apply in respect of any of our employees who are employed at the Ballarat site. Now we employ several hundred employees at the Ballarat site. The employees who are subject - are the subject of this dispute are some 33 in number. It is a dispute in a particular part of the operation of our business at the Ballarat centre. So we make clear, in paragraph 4, that we are talking about those employees.

PN483

Now we say that those undertakings remove the necessity to deal with the union's application with haste. It addresses, fundamentally, the issues of concern raised by the union. It certainly doesn't address the 15 per cent loading claim for shift penalties but it addresses every other major concern which would justify this Commission intervening on an interim basis to impose obligations on the employer which presently don't exist. That being the case, the Commission can then set down a timetable during which it can receive evidence in a proper form and submissions, so that each party is on notice as to the case that is proposed to be run by the other, people can make assessments as to whether or not certain witnesses will be required for cross-examination - - -

PN484

THE COMMISSIONER: I thought I - in granting Mr McDonald leave I thought I had gone back to the old days where parties could come along and present their arguments, but we have now gone back to people being required to be on notice.

PN485

MR GOSTENCNIK: Well, I take your point, sir. The point that we make is that the union's application is a serious one, it ought only be granted in exceptional circumstances. The extent to which exceptional circumstances might have existed, this undertaking goes to address those and in those circumstances, my client ought not be denied the opportunity to be given proper time to consider the union's case as a whole, to consider its position and the evidence that it wishes to lead, to consider whether or not it wishes to make any other application, for example, under 111(1)(g) in relation to the effect of these proceedings on the other proceedings which I mentioned earlier.

PN486

THE COMMISSIONER: Yes.

PN487

MR GOSTENCNIK: And we say that this is a sensible approach, it will make the case, if it needs to be run, run smoothly and efficiently and in the meantime the parties, certainly my client, is ever willing to sit down with the union to try and resolve the matter. It may also be, sir, that by the time this matter is listed for arbitration the outcome of the other proceedings will be known. That is, I understand the other proceedings are listed before you towards the end of April. In that time there are discussions scheduled between representatives of my client and the other respondents in the CPSU which may well result in, dare I say, a content award. And if that is the case then much of the subject matter which is sought to be agitated by the interim order, will have been resolved.

PN488

THE COMMISSIONER: Yes. Thanks Mr Gostencnik. Now, Mr McDonald, in light of your foreshadowed application, do you have any view about whether or not conciliation is at an end?

PN489

MR McDONALD: Well, as I said at the outset, it is not the desire of Telstra to be a spoiler in relation to a conciliated outcome, so I wouldn't take issue with anything that Mr Gostencnik has put. Can I just say in relation to CPSU4, the e-mail of 31 March, I would simply submit in relation to that that firstly, that has been directed - the individuals to whom it is directed are employees of Telstra, there is nothing within the terms of that document which is any way inconsistent with the right of entry provisions in the Act. And if the CPSU makes any criticism of Telstra in relation to the terms of that document, then it is criticising Telstra for acting consistently with the provisions of the Act.

PN490

Now just in relation to the directions if, Commissioner, you - - -

PN491

THE COMMISSIONER: Can I just go to that for a moment?

PN492

MR McDONALD: Yes, certainly.

PN493

THE COMMISSIONER: Right of entry is it?

PN494

MR McDONALD: 285C. The CPSU only has a right of entry under 285C in respect of employees of Telstra, that is employees who are subject to a relevant award. It has no right of entry under 285C in relation to non award employees.

PN495

THE COMMISSIONER: I follow.

PN496

MR McDONALD: In relation to the directions, Commissioner, if you are minded to make directions in those terms, in my submissions, directions could conveniently be accommodated within that timetable, that is directions relating to the revocation, a revocation application.

PN497

THE COMMISSIONER: Yes, thank you. Mr Jones, do you want 10 minutes to have a look at these matters and reflect, before I call on you?

PN498

MR JONES: No, I don't think that is necessary, Commissioner. I concur with your observation, made to my colleague at the bar table, that one of the reasons that leave is permitted for senior advocates in these matters that it actually assists the Commission in having matters dealt with in a timely and efficient manner. So I am in a position to respond. Can I just address the issues raised by Mr McDonald, first. CPSU4 is not, as he initially apprehended, an e-mail sent to Telstra staff. Clearly, on the face of the record, it is a direction to - in the first page of CPSU4, they are all recipients who are direct Telstra employees.

PN499

If the Commission goes to the last page we see a direction from Mr Tigchelaar that Markus Schneefuss, who is the Dorothy Farmer completely separate employer, a direction from the Telstra employer to the Dorothy Farmer manager, that he advised and provide the information as follows. So clearly there is a direction from Telstra to Dorothy Farmer telling Dorothy Farmer to tell its employees not to go and talk to the union. Nothing could be clearer. The second page, the second page of the document, all of those recipients are Dorothy Farmer employees and on my count, some 211 employees all received the advice and upon threat - and upon threat is quite clear, followed through with its deliberate instruction.

PN500

It is clear that absent an interim award that these sorts of disputes are going to continue. Can I address the draft directions proposed by my friend, Mr Gostencnik. Instead of going through them point by point, can I, just in outline form, say that as we see them they are deficient in two respects. They foreshadow or anticipate a procedure for any employee, we assume individually, to approach their individual management about their concerns. And those concerns are anticipated to be in relation to family responsibilities. We simply note that there may be other concerns as well. That certainly we have emphasised in this application, family responsibilities. There is no detail for the procedure or any structure which would allow importantly, in our submission, both the collective representation of issues and a process for escalation of those issues if they are unable to be resolved at the initial point of contact.

PN501

Mr Gostencnik did refer to clause 22 of the Telecommunications Services Industry Award and contrasted the generosity of their orders, their proposed directions 3(a) and (b) in relation to that award. What he omitted to bring to the fore and we don't criticise him for this, I am sure he has had short time to appreciate and get across the matter, but what the important part of the TSI provision is that that requirement to consult and to consider the family responsibilities is, importantly, contained within an award that contains a dispute resolution process, a dispute resolution process very similar in terms to that pressed by the union in our application for an interim award.

PN502

And it is the dispute resolution process which gives teeth, meaning, structure and process to the consultation that may occur between the individuals and the employees. So, absent that process, we say the - absent that process, the requirement to consult within the TSI Award cannot be fully understood and absent that formal process, that award binding process, absent that award binding process, we say that the Dorothy Farmer directions are deficient. Secondly, the second deficiency that we see in the draft orders, the draft directions, are these, that an important part of our application deals with the monetary issues and monetary compensation which we say is an appropriate safety net provision to assist employees who, in our submission, from today, indeed for two weeks now, have been required to work hours which we say are unsociable, which we say, hours which require additional - which impose additional costs upon the employees and which, we submit, the Commission has developed over the years a standard for compensating, consistent with safety net provisions, those employees in the form of a penalty rate as pressed by our order.

PN503

So, in summary. Before I summarise, Commissioner, I think it is necessary to point out some of the context about what we are arguing about here. On the CPSUs apprehension, there are approximately 211 Dorothy Farmer employees at the Ballarat site. Of those, about 40 of the employees covered by - fall within the ambit of the dispute currently before you, the employees working in the single bill area. On the information provided to us by our members and confirmed by the employer, no more than 12 employees, in any one week, would be working night shift.

PN504

We also understand that the hourly rate paid for these employees if $17 an hour. Now there may be - I may, in relation to the employees, have got it wrong by one or two or the hourly rate by one or two cents but, on our estimation, what we are arguing about here, in relation to the relief sought, is $1200 a week. We are talking about $1200 a week out of a total weekly salary bill, on our estimation, including superannuation, of approximately $150,000 a week. So, on our calculation, we are talking about relief that would add less than 1 per cent, about 0.85 per cent to the salary bill. So let us get this application in perspective. It means a lot to the employees, in the context of Dorothy Farmer it doesn't mean a lot at all.

PN505

So we say, for those reasons, that it omits to take into account the fact that disadvantage accrues immediately and any subsequent delay - any delaying of these proceedings means that the monetary relief is delayed and it fails to take into account the need for structured award-based dispute resolution process to give teeth and meaning to the consultation process. Those are our submissions in response to the directions, Commissioner.

PN506

THE COMMISSIONER: Thanks, Mr Jones. Mr Gostencnik, can you take instructions on two matters before I invite you to reply and I will adjourn so that you can take instructions on those matters. The first is the issue that is raised by Mr Jones in relation to the disputes procedure and the second is whether or not, as a part of your undertaking under 3(a), you would be prepared to consult with the employee, and where requested by that employee, their representative. So I will adjourn for 10 minutes to allow you to consider the issue of the undertaking and your response to Mr Jones' view about the disputes procedure.

PN507

MR GOSTENCNIK: Yes.

PN508

THE COMMISSIONER: Very well, I will adjourn briefly.

SHORT ADJOURNMENT [11.06am]

RESUMED [11.30am]

PN509

THE COMMISSIONER: Yes, Mr Gostencnik?

PN510

MR GOSTENCNIK: Thank you, sir. Sir, firstly, in relation to the question of whether recommendation 3(a) might be amended so as to provide for union representation where requested. I am instructed that we have no objection to that amendment, and indeed, it is something that we put to the employees when this whole thing first started. In relation to the dispute resolution issue can I say this, that, firstly, the amendment that I have just foreshadowed will in some way go to addressing that issue in any event, that is, the union will be able to represent the employee's interest in discussions with the employer.

PN511

Secondly, there is in existence a dispute resolution procedure in the contracts of employment to which the employees are a party and it provides, amongst other things, to raise concerns with the appropriate consultant of our client or manager and that whilst the grievance procedure is being followed work shall continue as normal except in the case of bona fide safety issues, etcetera. Thirdly, so far as the disputes settlement procedure which is sought by the interim orders, would provide for recourse to this Commission, we can say that the Commission could simply amend the directions by giving to any party liberty to apply at short notice. So that it is not as though there are - - -

PN512

THE COMMISSIONER: Yes, you are here already, in other words.

PN513

MR GOSTENCNIK: Yes, that is right.

PN514

THE COMMISSIONER: Yes.

PN515

MR GOSTENCNIK: So, we don't see that as a major issue in the context of these undertakings particularly in light of the amendments which we have agreed. Can I say further that insofar as the direction - sorry, the undertaking was criticised as being deficient, because it lacked a reference to personal circumstances which is the subject matter of the draft order, we emphasise family responsibilities because that has been the subject matter of this dispute. Although we are not aware of any particular difficulties we are told by the union that its members are agitating that as an issue.

PN516

But to the extent that there are personal circumstances which might create some difficulties we are content to add in the second line after the word, "Has - - - "

PN517

THE COMMISSIONER: I am sorry, which paragraph is this?

PN518

MR GOSTENCNIK: Sorry, this is paragraph 3(a).

PN519

THE COMMISSIONER: Yes.

PN520

MR GOSTENCNIK: The second line after the word, "Has" which is the second last word on that line - - -

PN521

THE COMMISSIONER: Yes.

PN522

MR GOSTENCNIK: - - - we would add the word, personal - sorry, the words, personal or.

PN523

THE COMMISSIONER: Yes.

PN524

MR GOSTENCNIK: Now, Mr Jones raised other aspects of the claim which goes to the monetary compensation. In light of the undertakings that we give there is nothing inherently urgent about a claim for a wage increase or a claim for a new allowance. But for the alleged circumstances of the change the Commission would not, in my suggestion, entertain as a matter of urgency a claim which, at its base, is a claim for shift penalty on an interlocutory or urgent basis. Some special circumstance would have to be demonstrated for the Commission to do that.

PN525

Now, to the extent that Mr Jones says that there is in existence special circumstances, then we say, well, those special circumstances will exist on or about 17 May and he can rely upon those special circumstances in any application for retrospective operation of the award, so, his position is not at all prejudice. When one removes the heat from the dispute, puts into place a procedure which will resolve disputes, it gives to the union substantial portions of its claim by way of undertakings, there is really nothing left for the Commission to determine on an urgent basis.

PN526

And in those circumstances, we say, that the directions that we propose are appropriate subject of course to appropriate amendment to accommodate Mr McDonald's concerns, if the Commission pleases.

PN527

THE COMMISSIONER: Yes, Mr Gostencnik, there is just one other matter.

PN528

MR GOSTENCNIK: Yes.

PN529

THE COMMISSIONER: How do you see 3(a) as amended operating in practice? Where do - and I have in mind CPSU4, the determination by the manager that employees of Dorothy Farmer - - -

PN530

MR GOSTENCNIK: Yes.

PN531

THE COMMISSIONER: - - - are not entitled to meet with the CPSU on Telstra premises and I am cognisant of the submission Mr McDonald made that there is no award covering these persons.

PN532

MR GOSTENCNIK: Yes and that is certainly a difficulty and that is something that we need to raise with Telstra. But let us assume for a moment that Telstra maintains the position, we will make arrangements to meet with the relevant union representative and the employee at another place, if that creates a difficulty, sir. So that in itself will not be an impediment to the employee raising the issue or us consulting the employee and the union representative if that is requested.

PN533

THE COMMISSIONER: Thanks, Mr Gostencnik. Mr Jones?

PN534

MR JONES: Commissioner, I will respond to that and then I will make a proposal, if I may, in relation to - if the Commission - and I will put the proposal as a secondary position. Let me put it this way, sniffing the breeze of what the Commission may have in mind - - -

PN535

THE COMMISSIONER: I don't think you should try and read my mind, it is a murky mire.

PN536

MR JONES: You may make that point, Commissioner, I never could. The principal position of the union is this that we press our application and we want to do it today.

PN537

THE COMMISSIONER: Yes.

PN538

MR JONES: In relation to the proposal for directions we see they are deficient even as amended in a number of regards some of which you have alluded to. We are thankful that the company is willing to include personal circumstances within the ambit of matters which may be brought to the attention of the company as plea to alter the hours as scheduled. We think there needs to be more rigour, and indeed, rigour agreed today about what this procedure is. If the course of this dispute has demonstrated anything it demonstrated there is need for an absolute certainty as to procedures and communications about procedures so that further escalation, misunderstanding and the capacity for those down the line to take actions outside spirit and the law, are avoided.

PN539

So we make that point and we believe if the Commission is minded to make an interim award or directions then the procedure should be precise and the communication with them should be precise. Can I deal then with the issue of the absence within what is being proposed as a formal dispute resolution procedure because I understand my friend, Mr Gostencnik, says that that is remedied by allowing the employees to be represented, that they have a dispute resolution procedure in the alleged contract of employment, and in any event, we have - be given remedy to re-apply at short notice.

PN540

I won't respond to the first of those issues. In relation to the second, it is the contract of employment which is the very subject matter of what is in dispute, so to reply on a purported term of a contract of employment which is not before the Commission which is, in itself, in dispute and as best we know not committed to any written form is, in our submission, unsatisfactory and not an alternative to what we press. The remedy to apply at short notice, that may be a part of a dispute resolution procedure but is not a resolution procedure in and of itself.

PN541

And, customarily, the Commission has in its handing down standard procedures with these sorts referred to them, as not just dispute resolution procedures but dispute avoidance and resolution procedures, ie, a procedure which at every step has a logical consequence to prevent the escalation of disputes. Now, in our submission, absent formal procedure with the standard layering of escalation points which may ultimately lead to a determination by the Commission, has a logical tendency to prevent the escalation of dispute and resolve it at the lowest level possible, bearing in mind the employee's right at every - in the process of the representation.

PN542

If I could then deal with the issue of monetary compensation. Mr Gostencnik, on behalf of his client, pleads that there is no urgency and there is nothing inherently urgent about a claim. That may be the case when the matter before the Commission is not a matter which deals, in our submission, with a breach of an employee's contract of employment. We, in our submission, it does and that is ultimately a matter to be determined by the Commission. That agitates the urgency and these employees continue to accrue a disadvantage if they are being forced in circumstances beyond their control to work these unsociable hours.

PN543

So we say - we submit that those are the shortcomings. In addition we - whilst we may differ on the application of section 285c of the Workplace Relations Act, the Act that provides a right of entry to permit holders to enter premises and hold discussions with certain employees, clearly that is not going to be resolved before you today on the directions being discussed. It is a matter in issue and can I give the Commission one small example of how it is likely to lead to a dispute. We cannot talk to these employees about the outcome of these matters in the workplace.

PN544

We are advised by my organisers the only way to do it to ensure we have clear lines of communication is to have everybody off the job at once and to talk to the employees off the premises. Now, that, clearly, will disrupt work, we know that these are not idle suggestions and that it has occurred on two occasions. It is likely to occur again if the employers adopt the same - adopt the same strategy. That is not - we don't make that submission in any way to attempt to suggest that we might try to escalate or agitate the dispute.

PN545

We merely say the union has a need to talk to its employees and not in a circumstance where those discussions are deemed to be abnormal - naughty, in a hidden room somewhere off the premises, some way looked upon unapprovingly by Dorothy Farmer or Telstra. They need to occur in the workplace in the most normal circumstances as possible. So those are the issues that we have. The principal submission, Commissioner, is that you should hear our application and we are ready to press that today.

PN546

If you are not minded to hear it today, then we press upon you the following course of action, that you exercise your powers pursuant to section 111(1)(b) of the Act and make an interim award. That the content of that interim award should embrace the provisions suggested by Dorothy Farmer in its draft directions 1, 2, 3, as amended and shall include the dispute resolution procedure proposed by the union in its amended application at clause 5. It is our submission, Commissioner, that no party is disadvantaged by the making of an interim award in those terms. It has a logical tendency to assist the resolution of the dispute.

PN547

In the absence of making an interim award in those terms, not only will the resolution - the consultation and the resolution of potential disputes arising out of consultation over hours of work create certainty of, perhaps, further industrial action and perhaps a matter of the Commission's precious time being taken up by matters that could have been dealt with lower down the chain of command. In the absence of the interim award the matter is most likely to occur so we press upon the Commission that such - if you don't accept our principal position that that is the most logical and reasonable and sensible way to handle this dispute, it has a logical tendency to lead towards this part settlement of the dispute in relation to those issues.

PN548

Again, if you are not minded to hear us today and determine the issue of monetary compensation, then we seek a ruling that the final determination and final - if we are able to convince the Commission of the merits of our application that the date of effect of any order that you may be mindful to make, should be the date upon which the application was originally made. That, in our submission, would come some way to addressing the accruing disadvantage to our members.

PN549

THE COMMISSIONER: Yes.

PN550

MR JONES: So we press that alternative, in those two parts, upon the Commission, if the Commission pleases.

PN551

THE COMMISSIONER: Thanks, Mr Jones. Yes, Mr McDonald?

PN552

MR McDONALD: Can I just indicate, Commissioner, that if you were minded to accede to Mr Jones' principal submission about proceeding immediately to make an interim award, consistent with my earlier submissions, Telstra would wish to press its revocation application so that there would be, what we would say, a proper jurisdictional foundation for you to proceed to make an award.

PN553

THE COMMISSIONER: Yes.

PN554

MR McDONALD: If you are not minded to accede to Mr Jones' principal submission then, in my submission, the appropriate course would be to include at point 2 of the directions that Telstra file any material it wishes to file in relation to the revocation application at the same time DFP files its material and that - - -

PN555

THE COMMISSIONER: Yes, I had thought about at point 1 that Telstra could file by 17 April and then the CPSU could respond by 1 May - - -

PN556

MR McDONALD: Yes, not troubled by - - -

PN557

THE COMMISSIONER: - - - as an approach.

PN558

MR McDONALD: Not troubled by that, Commissioner.

PN559

THE COMMISSIONER: Yes, do you have anything to say about the question that I raised with Mr Gostencnik and the submission that Mr Jones just made that there is likely to be tension if he has to invite his members to a meeting that creates a cessation of work outside the premises?

PN560

MR McDONALD: Only this - as I understand it, there is a CPSU delegate - is present in the precincts of the Commission at the moment and for our part we could not understand why that delegate would not be in a position to report directly to members what has occurred here today. Other than that, as I understand the position, in terms of DFP, the indication from Mr Gostencnik is they will make arrangements off site for any meeting to take place within paragraph 3(a) of the undertaking, but other than that, no, I don't have anything to put, Commissioner.

PN561

THE COMMISSIONER: And is there anything other than the fact that an award does not apply that relates to the view held by Telstra that they can determine whether or not there is a meeting with the union and employees of Dorothy Farmer on premises owned by Telstra?

PN562

MR McDONALD: Not as I am instructed, Commissioner. Telstra's position is that the Act establishes a framework and it is a legitimate and correct approach for the company to act in accordance with the statutory regime.

PN563

THE COMMISSIONER: Anybody want to say anything else?

PN564

MR GOSTENCNIK: I should formally respond to the last matter that Mr Jones raised. It is our position that the making of an interim award in the terms of the directions is inappropriate. Implicit in that is that there is some suggestion that the company will not abide by its undertakings and that just, simply, sir, is not the case. We give this undertaking in good faith in the full knowledge that a breach of the - - -

PN565

THE COMMISSIONER: Undertakings made to the Commission have significance.

PN566

MR GOSTENCNIK: Yes, in the full knowledge that there would be ramifications if we were to step outside of them.

PN567

THE COMMISSIONER: Yes.

PN568

MR GOSTENCNIK: And we - in relation to the dispute settlement procedure, sir, there is nothing whatever which would prohibit the union raising or the employee raising the matter with the immediate supervisor and then further up the chain, and indeed, we would welcome that and if they want to do so with a union representative, then we have no objection to that either.

PN569

THE COMMISSIONER: Do you have any view as to whether or not an interim award could, or should, be made just dealing with a dispute and avoidance resolution, or avoidance of dispute and resolution procedure for the interim period between now and the date of next sitting, on the proposition that you advance?

PN570

MR GOSTENCNIK: Well, one of the immediate consequences, I assume, would be to remove what is presently said to be a barrier of right of entry, possibly. It is a question whether - - -

PN571

THE COMMISSIONER: Maybe a consequence.

PN572

MR GOSTENCNIK: Maybe a consequence. It is a question whether that award so characterised can be described as one which covers the terms and conditions of employment.

PN573

THE COMMISSIONER: Yes.

PN574

MR GOSTENCNIK: I say - I don't have a view about it other than the view that I put that there isn't, in the circumstances, a need for an interim award. The process that I - even dealing with a dispute settlement procedure - because the process that I outlined addresses each matter and concern raised by Mr Jones. And whether or not the subject matter of the contract of employment was in dispute, what we are saying is, that the contract of employment does have a dispute settlement procedure in it. The procedure, coupled with the amendment to the undertaking, gives Mr Jones the very things that he seeks by way of award.

PN575

THE COMMISSIONER: Yes, I follow, thank you. Mr McDonald.

[11.54am]

PN576

MR McDONALD: Commissioner, I have just received some instructions. In terms of the matter that you raised earlier in terms of how clause 3(a) would operate insofar as it contemplates an employee having the right to involve a union representative, Telstra will provide a room in which any employee who wishes to avail themselves of the rights conferred by 3(a) to have a union representative in attendance, Telstra will provide a room where DFP can meet with that employee and the union. That will be on the basis that such meetings would take place during breaks, meal times, authorised breaks, and it would extend to - - -

PN577

THE COMMISSIONER: Where is your interest in when other employees meet with their employer?

PN578

MR McDONALD: Our interest that those people are contractors of - our interest is that those people are employed by a company which is contracted to provide service to Telstra.

PN579

THE COMMISSIONER: I see, the disruption of service.

PN580

MR McDONALD: Disruption of service.

PN581

THE COMMISSIONER: I follow. Thank you.

PN582

MR McDONALD: And the proposal, as I have outlined, relates to employees as defined in paragraph 4 of the directions.

PN583

THE COMMISSIONER: I am sorry, would you say that again?

PN584

MR McDONALD: The proposal as I have outlined - - -

PN585

THE COMMISSIONER: Yes.

PN586

MR McDONALD: - - - extends only to employees as defined in paragraph 4 of the directions.

PN587

THE COMMISSIONER: Yes, I follow. So it doesn't include the report back meeting?

PN588

MR McDONALD: No.

PN589

THE COMMISSIONER: Well, if it - yes. It is constrained to the operation of 3(a).

PN590

MR McDONALD: Yes.

PN591

THE COMMISSIONER: And those persons as defined by 4.

PN592

MR McDONALD: Yes, it is designed to address the practical problem would you have alluded to earlier.

PN593

THE COMMISSIONER: Yes, I follow. Thank you. All right, I am going to adjourn for 15 minutes and consider the submissions. If you would be kind enough to return in about 15 minutes.

SHORT ADJOURNMENT [11.56am]

RESUMED [12.25pm]

PN594

THE COMMISSIONER: I propose to do two things. Firstly, I will issue directions as modified, consistent with exhibit E2. Those directions will encompass the ability for Telstra to put argument in relation to the revocation of the finding of dispute and the matter will be listed for further hearing at 10 am on 15 May. So the directions will be in (1) the CPSU and Telstra file and serve, and what follows in (2) DFP Recruitment and the CPSU file and serve and in (3) the application for an interim or provisional award, and the revocation for a finding of dispute, will be heard on 15 May. In (5) there is a blank there as well and I propose to insert 5 May.

PN595

Secondly, because I am giving great weight to attempts to settle the matters by conciliation, I will as an interim measure make an award binding upon the CPSU and Dorothy Farmer entitled the Dorothy Farmer Avoidance of Disputes Interim Award 2003. The coverage of the award shall be limited to Dorothy Farmer and those persons who perform clerical, administrative and customer contact work in the single bill establishment group at the call centre operated by Telstra Corporation Limited at 333A Gillies Street, Wendouree, Ballarat in the State of Victoria.

PN596

The parties bound will be the CPSU, its members and those eligible to be members and Dorothy Farmer. The terms of the award will be at this stage restricted to the disputes resolution procedure contained in the CPSUs draft order. Some of the issues raised in my decisions of 23 October 2001 in print PR910222 and 1 November 2001 in print PR910831 are relevant to my decision to exercise a discretion to make an interim award. The award will come into effect from today and the life of the award will be fixed and will be set aside subject to any further submissions on 16 May 2003.

PN597

Liberty is granted to any party to apply to seek an urgent re-listing of this matter or to seek an amendment to the directions that will be issued. The matter is adjourned until the 15th at 10 o'clock in Melbourne.

ADJOURNED UNTIL THURSDAY, 15 MAY 2003 [12.28pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CPSU4 E-MAIL DATED 31/3/2003 PN460
EXHIBIT #E2 COPY OF PROPOSED UNDERTAKINGS AND DIRECTIONS SOUGHT PN479