C2003/2115, Transcript of Proceedings [2003] AIRCTrans 1776 (15 May 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2003/2115

ENTERPRISE BARGAINING AWARD

Application under section 111(1)(b) of the Act
by Virgin Mobile (Australia) Pty Ltd for making
of an award

SYDNEY

2.17 PM, WEDNESDAY, 30 APRIL 2003

Adjourned sine die

PN1

THE COMMISSIONER: Can I take appearances, please?

PN2

MR D. HARGRAVES: If it please the Commission, I am from the Australian Industry Group an I appear in these proceedings on behalf of the Australian Industry Group and also Virgin Mobile (Australia) Pty Ltd and also with me today I have MR G. DALY from the company.

PN3

MR S. JONES: If it please the Commission, I appear for the CPSU.

PN4

MR I. BRYANT: Commissioner, I appear on behalf of the CEPU in this matter.

PN5

MR H. METTE: Commissioner, I seek leave to intervene on behalf of the ASU in this matter.

PN6

THE COMMISSIONER: Yes, thank you, Mr Mette. Is there any objection to the application for leave to intervene? Leave is granted. Yes, Mr Hargraves? Can I indicate that I've received two letters, one from the ASU and one from the CPSU, seeking an adjournment of these proceedings. Have you received copies of those letters?

PN7

MR HARGRAVES: I've received a letter from the ASU referring to an application by the CPSU for an adjournment. I actually haven't received anything from the CPSU requesting such an adjournment.

PN8

THE COMMISSIONER: Yes, I see. All right.

PN9

MR HARGRAVES: I was aware that there was an issue about an adjournment. I thought that application may have been made today.

PN10

THE COMMISSIONER: Thank you.

PN11

MR HARGRAVES: Firstly, in relation to those letters, Commissioner, one of those letters, as I understand it, is a letter addressed to the Commission dated 24 April 2003 which, amongst other things, refers in the third paragraph to a dispute before Commissioner Tabbaa of the New South Wales Industrial Relations Commission. It was in response to that piece of correspondence that the Australian Industry Group, on behalf of Virgin Mobile, forwarded a letter to the ASU on 28 April.

PN12

For the sake of completeness, the matter in question which was subject of that correspondence referred to an alleged unfair dismissal application that was on foot at that time, so I'm instructed, and as a result of discussions and negotiations and conciliation before the Commission the ASU, on behalf of its member, withdrew its application. The file on that matter, as I'm instructed, Commissioner, is now closed. So in terms of there being any issue currently before the New South Wales Industrial Relations Commission, there is none. Whilst, in our submission, all of that really has no relevance to the current proceedings, it has been a matter that has been raised and for that reason it warranted a response.

PN13

Could I now turn to the application that was filed in the Commission on 17 April. Commissioner, could I seek leave to tender an amended application?

PN14

THE COMMISSIONER: Yes. I'll mark that AIG1.

EXHIBIT #AIG1 AMENDED APPLICATION

PN15

MR HARGRAVES: Thank you, Commissioner. The amended application, AIG1, makes two changes in essence from our original application. The first of those is a minor change in respect of the correct legal entity which is Virgin Mobile (Australia) Pty Ltd whereas the earlier application referred to Virgin Mobile Pty Ltd. The extent of the change in respect of the attached draft order, at clause 3.2, was that in respect of their employees in customer contact, clerical and administrative employment as defined in subclauses 18.2 and 18.3 of the Telecommunications Services Industry Award, those words have been added. That's the extent of the changes in the amended application. Commissioner.

PN16

THE COMMISSIONER: Thank you.

PN17

MR HARGRAVES: The application before the Commission is an application under section 111(1)(b) of the Workplace Relations Act for a roping-in award on behalf of Virgin Mobile (Australia) Pty Ltd. The award, if made, would bind Virgin Mobile (Australia) Pty Ltd to the Telecommunications Services Industry Award 2002 in respect of employees in customer contact, clerical and admin employment as defined within the appropriate clauses of that award, which are clauses 18.2 and 18.3.

PN18

Commissioner, I might firstly deal with the question of jurisdiction. On 11 April 2002 the CPSU served by certified mail a letter of demand and log of claims upon Virgin Mobile (Australia) Pty Ltd. The claims made were in respect of employees who are or who are eligible to be members of the CPSU. On 12 June 2002 the Commission as currently constituted made a finding of dispute pursuant to section 111 of the Workplace Relations Act and that decision was made in transcript and the matter number was C2002/2795.

PN19

THE COMMISSIONER: Recorded on 19 June and sent to the parties.

PN20

MR HARGRAVES: Thank you, Commissioner. I actually was not able to locate that correspondence but I do have a copy of the transcript of the decision.

PN21

THE COMMISSIONER: That's all right. I have a copy of the finding.

PN22

MR HARGRAVES: Thank you, Commissioner. The finding of dispute was with the consent of Virgin Mobile (Australia) Pty Ltd and as a result of that finding of dispute, Commissioner, it is our submission that jurisdiction exists for the Commission to make the award in the terms sought.

PN23

In relation to the making of the award, it's our submission that it's proper for the Commission to have regard to the wage-fixing principles and in particular principle 11 which deals with first awards and extensions of awards to an existing award to any group of companies. Principle 11 provides:

PN24

In extending an existing award the Commission ...(reads)... the conditions under which the work is performed -

PN25

section 89A of the Workplace Relations Act and the simplification criteria under section 143 of the Act.

PN26

Commissioner, it is our submission that the award that we seek to have made today will give effect to those wage-fixing principles and our submission in relation to that is that in the making of the parent award, namely, the Telecommunications Services Industry Award 2002, that the Commission in that instance had observed paragraph 6, that you had examined the award and that you were satisfied that the award complies with the provisions of the Act and in particular complies with section 89A. In other words, Commissioner, the award includes relevant test case standards and it contains, importantly, an appropriate safety net of wages and conditions. The Commission went on to observe that there was a properly fixed minimum wage within the awards. It was fixed against the hundred per cent classification rate in the Metals and Engineering and Associated Industries Award.

PN27

It is our submission that Virgin Mobile Australia Pty Limited is a genuine telecommunications company. Most of the companies in the mobile telephone business are bound by what is commonly referred to as the TSI award. By way of examples, companies such as AAPT Mobile Limited, Hutchison Telecommunications, Primus Telecommunications, Powertel, Newtel Limited, RSL Com, Vodafone and B Digital, to name but a few.

PN28

We therefore say that by binding Virgin Mobile Australia Pty Limited to the TSI award would be binding a company that performs work similar if not identical to other companies bound by this award. Commissioner, this is the appropriate award that generally applies to the telecommunications industry which, I might add, is an extremely competitive industry.

PN29

If I could refer the Commission to clause 6 of the TSI award which deals with the question of coverage, clause 6.1 of that award sets out that subject to the exemptions set out in subclause 6.3 and 6.8 this award applies to those employees in classifications set out in clause 18, classifications and salaries for those who are engaged by a business in the telecommunications services industry. Our submission in respect of that, Commissioner, is that Virgin Mobile Australia Pty Limited does fall within the category of a business in the telecommunications services industry.

PN30

Clause 6.2, for the purpose of this award a business in the telecommunications services industry means, at 6.2.1, any business whose principal function is carrying on the supply of telecommunications services and whose principal function is the supply of value added telecommunications services. It is our submission, Commissioner, that Virgin Mobile clearly falls within the definition defined within 6.2.1.

PN31

Clause 6.3 deals with categories that are excluded and goes on to define what those categories are, which includes those companies that are involved in the manufacture and supply of telecommunications equipment and at 6.3.2, those companies that are involved in the installation and services of that equipment, it is our submission that Virgin Mobile does not fall into the categories as outline in 6.3.2.

PN32

If I could take the Commission to clause 8 which deals with exemptions, this clause at 8.1.2 covers employees under the following awards, it lists a series of awards, and similarly in clause 8.1.3. Commissioner, none of those awards that are listed in clause 8 of the TSI award apply to Virgin Mobile Australia Pty Limited.

PN33

Commissioner, the making of this award will establish a safety net of conditions of wages and conditions of employment to some 123 employees that will be covered by it. We know that on 12 June 2002 the CPSU was urging you to make an interim award against Virgin Mobile Australia Pty Limited. On that occasion you declined to make the interim award and that was partly because Virgin Mobile had received short notice and did not have time to consider the content of that interim award.

PN34

We also note that the correspondence from the ASU dated 24 April 2003 which contains an attachment, a letter dated 22 August 2002 addressed to yourself, and that letter essentially refers to the transcript of proceedings that took place on 12 June. If I could tender that, Commissioner. I'm sorry, I do apologise, Commissioner, I have actually handed up the wrong one. That was the original dispute finding transmission which didn't require - - -

PN35

THE COMMISSIONER: Well, I will substitute that exhibit for the transcript of proceedings dated 23 August 2002.

EXHIBIT #AIG2 TRANSCRIPT OF PROCEEDINGS DATED 23/08/2002

PN36

THE COMMISSIONER: Yes, Mr Hargraves.

PN37

MR HARGRAVES: If I could take you to paragraph 56, Commissioner, on page 4 where Mr Jones indicates:

PN38

It has been brought to our attention by the representatives of the Australian Services Union who are intervening in these proceedings ...(reads)... Australian Services Union, Mr Want, with certain undertakings and I would like to tender a copy of that letter.

PN39

You go on to say, Commissioner, I will mark this as Jones 1. If I can take you further to paragraph 59, Mr Jones states:

PN40

The letter dated 22 August and marked by yourself as Jones 1, 23.8.02, is a copy of a letter to Michael Want. It includes with it an ...(reads)... We give that undertaking before you today.

PN41

Commissioner, we say a number of things about that. It would seem, firstly, that Virgin Mobile (Australia) Pty Ltd has been caught in some sort of coverage dispute between the CPSU and the ASU which resulted in the CPSU not proceeding with its application to rope in Virgin Mobile (Australia) Pty Ltd at that time. During that intervening period of time there have been no discussions with the employer regarding this issue with either the CPSU or the ASU.

PN42

We also say, Commissioner, some eight months has now elapsed since that undertaking was given by the CPSU, but most importantly, we say, Commissioner, that the issue here is not an issue about union coverage. The issue is about establishing a safety net of wages and conditions in the form of the appropriate award. There can be no dispute, in our submission, that the Telecommunications Services Industry Award is the appropriate award that should regulate the employees of Virgin Mobile (Australia) Pty Ltd. That is not to say, Commissioner, that the company does not acknowledge that the ASU has members within the company nor that the company will cease to recognise the rights of the ASU to be able to represent those members.

PN43

THE COMMISSIONER: Do you know if there's a federal dispute in relation to the company and the ASU?

PN44

MR HARGRAVES: Not to my knowledge, no.

PN45

THE COMMISSIONER: Thank you.

PN46

MR HARGRAVES: It's our submission that any agreement, whatever the status of that agreement might be, between the two unions should not be any impediment to the making of this award in the terms sought. If the Commission pleases.

PN47

THE COMMISSIONER: Thank you. Yes, Mr Mette?

PN48

MR METTE: Thank you, Commissioner. The ASU has written to the Commission seeking to have this matter adjourned for the purposes of seeking discussions between the parties to this application.

PN49

I would like to respond briefly to some submissions that have been made in relation to proceedings before the New South Wales Industrial Commission. My understanding of those proceedings is that the file has not been closed, as has been previously indicated, but that proceedings that were listed for mention yesterday were adjourned after the Commissioner received correspondence from the company in question.

PN50

I've had discussions earlier today with the Branch Secretary of the relevant branch of the ASU, Mr Michael Want, who indicated that there were still a number of issues related to that application which were outstanding and have not been resolved as has been represented and, as such, those proceedings are still very relevant. The correspondence that was sent by the ASU to the company and to the Commission refers to those issues and sought yesterday's mention date finally to resolve those matters.

PN51

THE COMMISSIONER: Do those matters travel beyond an unfair termination controversy?

PN52

MR METTE: Those matters relate in part to the rights of ASU delegates to represent the interests of the ASU and representation rights of the ASU with regard to employees under the New South Wales Clerks Award. So they go beyond purely issues of unfair dismissal.

PN53

THE COMMISSIONER: Do you know if you have a federal dispute with Virgin Mobile?

PN54

MR METTE: My instructions are that we do not. We have dispute findings with the AIG but not with Virgin Mobile.

PN55

THE COMMISSIONER: You have a dispute finding with the AIG?

PN56

MR METTE: I believe so. We certainly don't have a dispute finding with Virgin Mobile federally.

PN57

THE COMMISSIONER: You see, an application for a roping-in award is a stand-alone award. There are a number of options available to me. One option is to make an award without a union respondent using the C No to found the jurisdiction, but I can certainly make an award that binds the employer without a union respondent. It was done in the pilots case. Another option if you had a federal dispute is to make an award with you party to it.

PN58

MR METTE: The instructions I have, Commissioner, are not to go into those elements but simply to seek further discussions in relation to this issue. Amongst other things is the issue of whether this case warrants consideration of section 111AAA of the Workplace Relations Act and particularly we haven't had the opportunity, given the lack of notice by the company of this application, to consult with our members as to whether they seek to continue to be bound by that State Award or by a Federal Award. So certainly our preference would be to resolve this matter by means of negotiations rather than simply the making of an award at this point.

PN59

THE COMMISSIONER: So how long do you think you need an adjournment for?

PN60

MR METTE: Approximately two weeks, Commissioner.

PN61

THE COMMISSIONER: Thank you. Mr Jones?

PN62

MR JONES: If the Commission pleases: I cannot pass up the opportunity to note that it is exceptional circumstances indeed where my union at least finds itself on this side of the bar table seeking to postpone an application by an employer to have a company or one of its members bound by our award. Perhaps it is the exceptional nature of the matters that are presently before you as the grounds on which the ASUs application should be granted.

PN63

It appears to the CPSU that there is at least some contention about the matter that is currently on foot before the New South Wales Commission both in relation to its scope and whether or not that matter has been determined. True it is, as Mr Hargraves has said that, on the face of it, jurisdiction exists for the Commission to make an award.

PN64

It is relevant to the proceedings, and relevant, in the CPSUs submission, to adjourn the application. When these parties were last before the Commission it was for an application by the CPSU to have the respondent company roped into the interim award and the company opposed that application - as is their right, as is their right to oppose the application. We say it does add colour to the matter currently before you.

PN65

Subsequent to the CPSUs application to have Virgin Mobile roped into the interim award we were made aware that the Australian Services Union and/or its state-registered entity had enrolled members tp its union and sought to represent, and was representing, their industrial interests and, as we're advised, that included the desire to determine industrial matters in terms of wages and conditions.

PN66

We did advise the Commission of this by way of letter and gave the Commission certain undertakings. We seek to say nothing in relation to the undertakings at this point in time but it's important for the CPSU, for our part, to say that the reason we didn't seek to have our dispute determined when the final award was made in that matter was our concern that it would prejudice the bona fide attempts of the Australian Services Union and/or its state-registered entity to determine its bona fide disputes in relation to wages and conditions but, more importantly, we feared that there was a very real prospect that a determination of a dispute at that point in time would give rise to a demarcation dispute and we did not believe that that was in the public interest.

PN67

We maintain that the determination of the dispute in the manner sought by the AIG would give rise to a demarcation dispute and that should be avoided, in our submission.

PN68

If the Commission is not minded to grant the ASUs application for an adjournment of the matter, I wish to make some brief submissions in relation to the application that is before the Commission. We note that the amended application, AIG1, seeks to limit the binding effect of the award to Virgin Mobile Pty Ltd at Level 5,

PN69

33-35 Pitt Street, and then again limit it further in respect of its customer contact, clerical and administrative employees. Normally, when a dispute is found at large, it would be usual for an employer who sought to circumscribe the award in determination of that dispute to lead some material as to why the award should be so circumscribed.

PN70

In our submission, that has not occurred and perhaps that's further reason why an application for adjournment should be granted. We do not know why the company seeks to have the award made in such a limited form. If the Commission was minded to make an award, either in this form or in another, today then it would be the CPSUs submission that the award should bind all of the eligible employment within Virgin Mobile and not be so proscribed as in the AIG application. Those are secondary submissions, Commissioner. Our principal submission is that there is public interest in the matter being held over.

PN71

THE COMMISSIONER: Yes, thank you. Mr Bryant, do you wish to put any submissions?

PN72

MR BRYANT: No, Commissioner.

PN73

THE COMMISSIONER: Thank you. Mr Hargraves? You face an application for an adjournment of a fortnight.

PN74

MR HARGRAVES: Commissioner, we're of the view that we don't see any useful purpose in an adjournment and would oppose an adjournment. There have been eight months which have transpired in which the ASU and the CPSU, if they wanted to have these discussions, could have had such discussions during that period of time. As we understand it, there have been no discussions between the parties. There certainly haven't been any discussions with the employer and there has been no attempt to try to resolve this particular issue. We can't see what possible benefit could be obtained by having that adjournment.

PN75

In respect of the issues that are raised in relation to the New South Wales Commission, as relevant as they may or may not be, my instructions are that the company, through Mr Daly who is with me here today, received a phone call from Commissioner Tabbaa's associate yesterday afternoon advising that the file had been closed and that was a s result of correspondence that had been sent to Commissioner Tabbaa's office by both the company and the union. That matter, as we understand it, is at an end.

PN76

The other issues that are referred to in a vague sense going beyond this alleged unfair dismissal, as I understand it, go to rights of union delegates, etcetera. It's difficult to see how the New South Wales Commission was going to deal with that issue in the context of an unfair dismissal application that had been withdrawn. My understanding of that is that Commissioner Tabbaa had made an offer to the parties to deal with those issues if both parties agreed.

PN77

Now, there was no such agreement and the file was closed. There are no further matters before the New South Wales Commission in respect of that matter or any other matters.

PN78

In respect of the comments in relation to section 111AAA, we hear what my friend from the ASU has to say. What we say in relation to that, and it's a position that Virgin Mobile has put to the ASU repeatedly, is that these employees who would be covered by our application if granted are employees who are not bound by any New South Wales instrument. So it would be hard, if that was to be the case, to see that the ASU could be successful in pursuing an argument in respect of section 111AAA.

PN79

In respect of the comments of Mr Jones, we note his position. In respect of the submissions, I might, by way of explanation, put the reason for our amended application in terms of the restriction, as Mr Jones, I think, referred to it, or the imposition of the additional words which restrict the employees to customer contact, clerical and administrative employment as defined in subclauses 18.2. and 18.3 of the Telecommunication Services Industry Award.

PN80

The reason for that amended application is because the company only employs people within the scope of that stream of the award. I also was conscious of the concerns that the CEPU may have in relation to that particular point and had discussions with Mr Bryant earlier today and gave him assurances that the company did not employ any employees who would fall within the technical stream of the award and had no intentions of doing so in the foreseeable future.

PN81

Having said that, Commissioner, if the Commission was of a mind to make the award it's of no great concern to us as to whether the award should be made in its original format or in the amended format, given that the company doesn't employ any employees and has no intentions of employing any employees outside of that customer contact and clerical/admin stream. We would have no objections in the alternate to the award being made as per the original application.

PN82

Commissioner, that, I think, is all I have to say by way of response. We would seek that the Commission would make the award.

PN83

THE COMMISSIONER: Thank you very much, Mr Hargraves. I've raised a couple of issues and questions today. What I'm going to do is grant the adjournment for a period of two weeks and the parties will be advised of another hearing date. During that period I want discussions to take place between the parties so that when the matter is re-listed there is no misunderstanding as to what might be the submissions put and I'll subsequently advise the parties of a date - I haven't got it at the moment. It may be that that can be done later on this afternoon. I'll adjourn this matter sine die.

ADJOURNED INDEFINITELY [2.57pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AIG1 AMENDED APPLICATION PN15
EXHIBIT #AIG2 TRANSCRIPT OF PROCEEDINGS DATED 23/08/2002 PN36