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Australian Industrial Relations Commission Transcripts |
1
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 10391
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER SMITH
C2003/1568
C2003/1572
CPSU, THE COMMUNITY AND PUBLIC SECTOR
UNION
and
DFP RECRUITMENT SERVICES PTY LTD and
ANOTHER
Notification pursuant to section 99 of the Act
of disputes concerning hours of work, payment
of shift penalties and consideration of workers
with family responsibilities at the Gillies Street,
Ballarat Call Centre
APPLICATION FOR AN AWARD
Application pursuant to section 11(1)(b) of the Act by
The Community and Public Sector Union for an award
MELBOURNE
10.06 AM, THURSDAY, 15 MAY 2003
Continued from 27.3.03
PN335
THE COMMISSIONER: Any change in appearances?
PN336
MR P. O'GRADY: Commissioner, I think the only change is on our team. I now appear for DFP Recruitment Services Pty Ltd.
PN337
THE COMMISSIONER: Thanks, Mr O'Grady.
PN338
MR O'GRADY: Thank you, Commissioner.
PN339
MR JONES: Commissioner, there has been some discussions between the advocates on how matters should best proceed this morning, subject to any comments that Mr O'Grady may have to say, or Mr McDonald may have to say, and subject to your views. It is the intention of the advocates that we call Mr Tigchelaar and then Ms Fischer and then Mr Schneefuss for cross-examination. And I understand that Ms Shirley will be called for cross-examination as well. That is the CPSU's understanding of how we will deal with the evidence this morning.
PN340
THE COMMISSIONER: Give me just a moment. Is it intended to cross-examine Mr Phipps?
PN341
MR JONES: No, it is not, Commissioner. I am also advised by Mr O'Grady that - - -
PN342
THE COMMISSIONER: Yes, just a moment please. Is he available?
PN343
MR JONES: Mr Phipps?
PN344
THE COMMISSIONER: Yes.
PN345
MR O'GRADY: Mr Phipps is not here, Commissioner, on the basis that there was no intentions and we received notice of no intention of cross-examination.
PN346
THE COMMISSIONER: Is it difficult to contact him?
PN347
MR O'GRADY: No, we - - -
PN348
THE COMMISSIONER: There are a couple of questions I would like to ask him.
PN349
MR O'GRADY: Certainly, Commissioner, we can arrange to have Mr Phipps here.
PN350
THE COMMISSIONER: Thank you.
PN351
MR O'GRADY: Just in relation to what Mr Jones said, I have just a couple of questions to put to Mr Hayden Jones and I have suggested that it might be appropriate to slot him in after Mr Tigchelaar and before our two witnesses, Commissioner.
PN352
THE COMMISSIONER: Very well.
PN353
MR McDONALD: I have just been provided with a second statement of Ms Shirley, which is in reply to the second statement of Mr Tigchelaar. My instructor has just quickly gone through it with Mr Tigchelaar. It does seem that there are some matters that I need to take instructions on. On the face of it, it looks like I would need to raise some matters with Ms Shirley.
PN354
THE COMMISSIONER: Yes.
PN355
MR McDONALD: I hadn't - I had previously not intended to cross-examine Ms Shirley in relation to the contents of her first statement. I don't want to be difficult more than I have to be, Commissioner, but I really have - I think I would have to ask the indulgence of the Commission just to quickly take some instructions from Mr Tigchelaar about these matters.
PN356
THE COMMISSIONER: Yes, of course. Do you want to do that now?
PN357
MR McDONALD: Yes, I think, if that is convenient, if the matter could be stood down for 10 minutes.
PN358
THE COMMISSIONER: All right. And if you can arrange to contact Mr Phipps and see if he can be made available for a couple of questions I have.
PN359
MR O'GRADY: Will do, Commissioner.
PN360
THE COMMISSIONER: Thank you. I will stand the matter down for 10 minutes.
SHORT ADJOURNMENT [10.10am]
RESUMED [10.30am]
PN361
THE COMMISSIONER: Yes, Mr McDonald.
PN362
MR McDONALD: Thank you for that time, Commissioner. It won't be necessary for me to cross-examine Ms Shirley, but there are some matters in her statement that I will be seeking to object to.
PN363
THE COMMISSIONER: Yes.
PN364
MR McDONALD: But putting that matter to one side, if I can simply proceed to call Mr Tigchelaar, who is the witness that Telstra proposes to rely upon the evidence in support of its application for revocation or variation of a dispute finding. You should hopefully have on the Commission's files two statements from Mr Tigchelaar.
PN365
THE COMMISSIONER: Yes, one lodged by letter dated 17 April and the other lodged by letter dated 13 May.
PN366
PN367
THE COMMISSIONER: Please sit down, Mr Tigchelaar.
PN368
MR McDONALD: Could you please state your full name?---Anthony John Tigchelaar.
PN369
And your address is 333A Gillies Street, Wendouree, Ballarat?---That is correct. Correct.
PN370
Now you have prepared two statements for the purposes of these proceedings?---That is correct.
PN371
And you have those with you?---I do, yes.
PN372
Could I just ask you to look at paragraph 12?---In the first statement?
PN373
In the first statement?---A sentence beginning:
PN374
In early March 2003.
PN375
?---Yes.
PN376
Should that in fact read:
PN377
In early February 2003.
PN378
?---Yes, it should. I was on annual leave in early March.
**** ANTHONY JOHN TIGCHELAAR XN MR McDONALD
PN379
Thank you. Now save for that amendment, are the contents of the two statements true and correct?---They are true and correct, yes.
PN380
Thank you.
PN381
THE COMMISSIONER: You tender those, do you, Mr McDonald?
PN382
PN383
MR JONES: Are they to be marked as a bundle, Commissioner?
PN384
THE COMMISSIONER: Yes, I will mark them both, both the original statement and the supplementary statement.
PN385
PN386
MR JONES: Mr Tigchelaar, how long have you been employed as the Centre Manager at the site of Wendouree?---I was appointed to the role about almost two years ago. Before that, I was in an acting capacity for about six, maybe eight months.
PN387
Okay, thank you?---So almost three years.
**** ANTHONY JOHN TIGCHELAAR XXN MR JONES
PN388
Almost three years. And prior to that?---Prior to that I was a Team Manager in Ballarat for maybe two years.
PN389
And what was your responsibility as a Team Manager? What did that involve?---A number of duties. Previous to taking on the Centre Manager role, I was the, I guess, the Operations Manager for the Centre, looked after the resourcing, the systems, those sorts of things. Previous to that, managing a team of approximately 15 staff in various roles, sales roles or back of house roles.
PN390
So you would say that you had a fairly good working knowledge of the operation of the Ballarat Call Centre?---Yes, I would.
PN391
And in your role, in your current role as Manager, you are responsible for the relationship with Dorothy Farmer Pty Ltd?---Yes.
PN392
Okay. Have Dorothy Farmer paid any rent to Telstra for the office space that they occupy at the site at Wendouree?---No.
PN393
No, they haven't. They don't pay any rent at all?---No.
PN394
Okay?---Not to my knowledge.
PN395
And do Dorothy Farmer lease the computers from Telstra that their employees use at the Centre?---No, they don't.
PN396
They don't lease the computers?---No.
PN397
And you say in your statement that there is two types of training that is conducted when a new employee starts at the Centre and Telstra is responsible for some of that training?---Some of it, yes.
**** ANTHONY JOHN TIGCHELAAR XXN MR JONES
PN398
And that training, as I understand, includes training on the use of Telstra systems and Telstra policies and procedures for dealing with customers?---That is correct.
PN399
Yes. And how long would that training take?---Can vary between five and about 12 days, depending on the role and that their - what the people have been brought in for.
PN400
Yes. And how many Telstra employees are engaged in delivering that training?---One.
PN401
One, for the - - -?---Yes.
PN402
It is one person delivers that training?---Yes.
PN403
For the entire one week or two weeks?---Yes.
PN404
Yes. You wouldn't know off the top of your head, would you, how much that employee is - that Telstra employee is paid during - on a weekly basis?---That gentleman doesn't report to me so, no, I don't.
PN405
So you don't know?---I don't. I would be only guessing.
PN406
Yes, okay. But Dorothy Farmer doesn't pay Telstra for the training that Dorothy Farmer employees receive during that two weeks training?---No, they don't.
PN407
Okay. You say in your statement in a number of places that you have meetings with Mr Schneefuss. Is that correct?---Look, Markus and I speak on a daily basis, yes.
**** ANTHONY JOHN TIGCHELAAR XXN MR JONES
PN408
Yes. And you describe those meetings as informal?---Yes.
PN409
Is that correct? Yes. I assume you don't mean when you say informal that you are dressed in beanies and board shorts?---That is a fair assumption, yes.
PN410
So it is not - you are not talking about the way you are dressed during those meetings?---No, not at all, no. I say informal because I would consider a formal meeting to be 9 o'clock every Wednesday morning we sit down and discuss - - -
PN411
Sure?--- - - - we have an agenda to discuss. I used the term informal because we could be 2 o'clock today, he will come into my office, I will go into his. That is my - - -
PN412
Yes. Do you ever take notes during those meetings?---No, not unless I need to.
PN413
Okay?---Not - - -
PN414
But if there is a key outcome, you would take a note of that?---Yes, I would take a note if I had an action to follow up.
PN415
Yes?---Something like that or Markus may be going to follow something up for me just so I know that I have discussed it with him.
PN416
Yes. And have you ever seen Markus, that is Mr Schneefuss is it?---Sorry, yes, Mr Schneefuss.
PN417
Yes, that is okay. I am just making sure I am talking about the right person. Mr - Markus Schneefuss, do you ever see him taking notes during those meetings?---Look, occasionally.
**** ANTHONY JOHN TIGCHELAAR XXN MR JONES
PN418
Yes?---Once again, if he has an action to follow up, as I said, there is no set agenda as such, so - - -
PN419
But decisions are made at the meeting, aren't they, from time to time?---Well, at times, I guess, in any meeting, yes, decisions are made.
PN420
Yes, decisions are made?---Yes.
PN421
And when those decisions are made, they are followed through on?---Yes.
PN422
Yes. So if you make a decision that something is going to happen and it falls within the bailiwick of Mr Schneefuss, you would expect that Mr Schneefuss would follow through on that action?---Yes.
PN423
Yes, yes. You talk in your statement in a number of places about the services that Dorothy Farmer provide. Now we are talking about people, aren't we? They don't provide fax machines or photocopiers or computers?---They purely provide people.
PN424
Just people?---Yes.
PN425
So when you refer to services, you are referring to people?---Correct.
PN426
Okay. And you have made a decision, is that correct, that you need 12 extra broad band staff to be on deck during the day, that is correct?---Well, I guess the business has made the decision - - - .
PN427
Sure?--- - - - and it is driven by customer demand. So - - -
**** ANTHONY JOHN TIGCHELAAR XXN MR JONES
PN428
Telstra has made the decision, yes?---Telstra has - if we are referring to me as Telstra, yes, Telstra made the decision, yes.
PN429
Yes, okay then. As a manager of Telstra, you are responsible for making sure that that decision is followed?---Correct. I also have a number of KPIs that I am expected to achieve.
PN430
And you say in your evidence that there is a limited number of seats available in the Call Centre during the day time and therefore some of that work needs to be done at night time?---Correct.
PN431
Yes, yes. What happened, Mr Tigchelaar, during one of these - let us not call them informal meetings, let us call them irregular meetings, because that is what we are talking about, isn't it? When you say informal, you mean irregular? They don't - they are not regularly scheduled?---Yes.
PN432
Very regular, they are not informal?---Yes.
PN433
Yes?---If that is how you would like to refer to it, yes.
PN434
Okay. What would happen during some of these irregular meetings with Mr Schneefuss? If you said to him, "Well, we need 12 extra seats during the day shift to perform the broad ban work and that means that work that was previously being done in relation to single bill has to be done in the night time. That means your staff are going to have to do it in the night time." And Mr Schneefuss said to you, "Well, thanks for your advice, but we are not going to do it that way. We are going to continue to put our staff on doing that work during the day." What would happen?---So my actions from there?
PN435
Yes?---I would contact our HR area. I would also contact Corporate Accounts, the corporate area who holds the contract.
**** ANTHONY JOHN TIGCHELAAR XXN MR JONES
PN436
Yes?---And I would just check to see what, you know, what is in place for any grievance process or disagreement or something like that.
PN437
Yes?---That is initially how I would handle it.
PN438
But you would expect that if Telstra made a decision, such as Telstra have, you have described that Telstra has made a decision that requires a change in the allocation of work being done during one part of the day to another part of the day, that Dorothy Farmer would have to respect that request and adjust its staffing accordingly. They wouldn't have the right, would they, to say, "Well, thanks for the advice, but we are not going to do it."?---I guess they have the right to but I would expect that they follow, you know, what we expect.
PN439
You would agree with me, wouldn't you, if I said that it would be an extraordinary circumstance if a Telstra Manager in a senior position made that request to Dorothy Farmer and Dorothy Farmer disagreed and had its own way. That would be an extraordinary circumstance, wouldn't it?---I would find it - yes, I would find it extraordinary, yes.
PN440
So extraordinary as to be unbelievable?---Look, I don't know about unbelievable, anything is believable in this day and age.
PN441
Yes. You say at paragraph 16 of your first statement that Telstra trains Dorothy Farmer employees in the systems, we mentioned those earlier, that is your evidence, is that correct?---That is correct.
PN442
Yes. And without this training they couldn't perform their functions, could they?---That is correct.
PN443
Yes. And the training not only includes how to use the systems, it also includes policies and how to deal with customers, is that correct?---Policies, procedures, yes.
**** ANTHONY JOHN TIGCHELAAR XXN MR JONES
PN444
Yes, that is correct, okay. So in one of these meetings that you had with Mr Schneefuss, he said, "Tigs, I have got this great idea mate. What I am going to do with my employees in - I don't like the way that they are required to answer the phone. All that nonsense about, 'Welcome to Telstra, how can I help you?' It just doesn't sit with our employees so what I want my employees to do from now on is to say, 'G'day. My name is Mike, how can I help you?'" What would happen?---Well, we would sit down and discuss that that it is unacceptable to answer the phone like that.
PN445
Yes. And that would be one of those circumstances where Telstra would say to Dorothy Farmer, "No, this is not how the employees are going to answer the phone."?---Well, look, I guess we would, yes.
PN446
Yes. And you would expect that to be followed through, wouldn't you?---I would expect it, yes.
PN447
Yes, yes, indeed. And likewise if Mr Schneefuss said in one of these meetings that you have, "I have had this other great idea and what we are going to do is work on the relationship between Telstra and its customers by ensuring that each of our employees has a personal conversation with the customers every time they pick up the call and to ensure that this happens we are going to require that every Dorothy Farmer employee when they are talking to a customer has a 15 minute conversation with the Telstra customer." You would have a concern about that, wouldn't you?---I guess we would have a concern because there is certain KPIs that, you know, we are working on at the moment that they would struggle to meet based on a 15 minute personal conversation.
PN448
Yes. And if they had that sort of conversation, one of your concerns would be that that would have an impact on the work flow within the Centre, wouldn't it?---It certainly would.
PN449
Yes. And one of your KPIs is the number of calls you handle and the amount of time that the clients of Telstra are left waiting on the phone, isn't it?---Certainly not the number of calls, that is incorrect, but - - -
**** ANTHONY JOHN TIGCHELAAR XXN MR JONES
PN450
But the time waiting?--- - - - handling times, yes.
PN451
Yes. And what is the expression you use for that?---Handling times.
PN452
Handling time, call handling time. So if Mr Schneefuss' hot idea about having a personal conversation was put into place, that would blow out Telstra's handling time immeasurably, wouldn't it?---Well, it certainly would.
PN453
It certainly would. And that would be a problem for every employee in the Centre, wouldn't it?---Not too sure about every employee in the Centre, but certainly for me.
PN454
Yes, indeed, it would be. And the poor employees that picked up the call from the customer after they had been waiting for 30 minutes on the phone, yes. You would expect that they would get an earful after that as well, wouldn't you?---I think that is a fair expectation, yes.
PN455
Reasonable, yes. Yes, indeed. So they are all very good reasons why you would, if Mr Schneefuss had this hot idea, you would have to say, "Cool it Markus, this isn't going to happen."?---Yes.
PN456
Yes?---Well, I guess, not all ideas are hot, I guess.
PN457
Yes, indeed. If Telstra tells Dorothy Farmer that it no longer wishes are particular Dorothy Farmer employee to perform Telstra work, and you had good reason for that, I am sure that might have occurred from time to time. But if Telstra, if you were to tell Markus Schneefuss that you no longer wished a particular Dorothy Farmer employee to perform Telstra work, you would expect that Dorothy Farmer would respect that wish and that employee would no longer turn up to a Telstra premises, wouldn't you?---Partly correct. Have spoken to Mr Schneefuss in regards to certain employees who just aren't up to, I guess, just aren't making
**** ANTHONY JOHN TIGCHELAAR XXN MR JONES
the area that they are in and most of those employees are now still within the Centre doing other roles. It is up to Markus, I guess, to determine what those people may be capable of doing. Give them the opportunity, everybody should be given the opportunity to develop, to improve, in the first instance. Beyond that, I think, you know, and we should pride ourselves on the fact that we try to find them roles within the Centre.
PN458
Yes. So, Mr Schneefuss, in moving this employee from - they couldn't cut the mustard in a particular area, is that what happened? That you had an employee that wasn't up to scratch in a particular area, you made a suggestion to Mr Schneefuss, and you brought this to his attention, and he was moved - that employee was moved to another area?---That has happened to a couple of staff, I believe, yes.
PN459
Yes. So it is not unsurprising that that would occur?---Well, no, it is not unsurprising, no.
PN460
Would you say it was common place?---No, I wouldn't.
PN461
It is not common place?---No.
PN462
But it has happened?---Yes.
PN463
Yes. And you would expect, would you not, if you brought those things to Mr Schneefuss' attention, that he would act on it, wouldn't he?---I would, yes.
PN464
Yes. Telstra does have some say over who DFP employs, don't they?---No, look, not really, no. No, I don't agree with that, no.
**** ANTHONY JOHN TIGCHELAAR XXN MR JONES
PN465
You don't. I would like to give you a scenario, Mr Tigchelaar. Let us say that we had an employee, let us use Ms Shirley, she is in the courtroom at the moment. Ms Shirley has worked at Telstra for some 18 years, I understand, she takes a package from Telstra next week and approaches Dorothy Farmer and they say, "You beauty. We have got an 18 year experienced employee." Telstra have got a policy about that, haven't they?---Look, possibly. Possibly. I know that a permanent employee going for a permanent job can't be re-employed, I think, within two years.
PN466
I see?---And, look, to my knowledge, that may exist but, look, that is more a HR issue. It hasn't occurred.
PN467
Yes?---I have had no reason to - - -
PN468
Let us hope it doesn't. In the example that I have just given you?---Well, let us hope not. Margaret is an excellent worker.
PN469
Yes. I put it to you that it is the case that Telstra has a policy which prohibits any of its labour hire suppliers hiring an employee who has taken a redundancy package from Telstra within two years. If I put that to you would you say that that was correct?---As I just said, I have heard that it is possible.
PN470
So you know no different?---I could - I have no idea, to be honest, I would check it out.
PN471
You know no different. Have you read - I am sorry?---You are right. Read, sorry?
PN472
Have time to take a drink?---No, you are right, just a lingering cough.
**** ANTHONY JOHN TIGCHELAAR XXN MR JONES
PN473
Have you had the opportunity to read the witness statement of Ms Celia Fischer in this matter?---No, I haven't.
PN474
Can I provide the witness with a copy of - no, sit down.
PN475
MR McDONALD: Do you think he is running away.
PN476
MR JONES: I am sure it is not that bad, Michael.
PN477
MR McDONALD: Mr Jones must stop monstering the witness, Commissioner.
PN478
MR JONES: This is good Jones the nice?---Any particular part, or the whole?
PN479
Yes, could I ask you to read paragraph 20? Take your time?---Yes, look, I believe - well, I actually found out a couple of weeks after that that meeting - that there was a meeting that Gary and Markus conducted. As to what went on within the meeting, I have no idea.
PN480
But to the best of your knowledge, the evidence of Ms Fischer at paragraph 20 is correct?---Yes.
PN481
Yes. And if I could take you to paragraph 21?---20, sorry?
PN482
21. Take your time?---Okay.
PN483
You would agree with that statement?---I was unaware of one of those names there.
**** ANTHONY JOHN TIGCHELAAR XXN MR JONES
PN484
But apart from - - -?---Apart from that, yes.
PN485
Yes. That is true and correct to the best of your knowledge?---Yes, I guess that is, yes.
PN486
Yes. What Ms Fischer says at paragraph 20, and it appears to me that Mr Kennedy is a Telstra Manager, is that correct?---Gary is a Telstra Team Leader, reports directly to me.
PN487
Yes, reports directly to you. And what he says is that - what Ms Fischer says is that she is aware that Mr Kennedy had a meeting to communicate the changes that were going to occur in relation to the shift roster and Mr Kennedy communicated that change to the employees and you have agreed that that is correct. At paragraph 21 you have agreed that arising out of these meetings there was a proposal for a rotating roster. You say you don't know whether each of those employees was there?---Yes.
PN488
But you know that the meeting occurred and that the outcome of that was a proposal for a rotating roster and that was accepted by both Dorothy Farmer and Telstra. That is correct?---Yes, my understanding it was also the - had input from the people involved.
PN489
Yes, and that is Ms Fischer's evidence, yes. So let me go through it. What you have agreed with so far is that Telstra decides what work gets done by the Dorothy Farmer employees. That is correct?---Yes.
PN490
And they have some say, some say, in which employees do that work?---Yes.
PN491
Yes. And Telstra has approved the roster. Telstra approves the timesheets of the employees?---Well, ultimately we have to sign off an approval on timesheets if we are expected to pay the bill.
**** ANTHONY JOHN TIGCHELAAR XXN MR JONES
PN492
If you are forking out the money, you want to know what they have done the work?---One would hope so.
PN493
That is correct, yes, yes. And Telstra Managers have communicated the changes, Mr Kennedy, in Ms Fischer's statement at paragraph - - -?---I think the changes had already been communicated before that meeting.
PN494
Yes?---And he was involved in the communication. You would agree with that?---Well, I say again that the changes that are - the concept, I guess, of the changes and the reason for the changes had already been communicated. Gary Kennedy was on leave also at that time and he returned on the Tuesday as well.
PN495
Sure, okay. You say in your second statement, you describe in your second statement some changes in the seating arrangements that were put in place. That was your initiative, is that correct?---That was the initiative of myself and my management team, yes.
PN496
Okay. And that occurred after - those changes took place after these meetings and these matters were notified in the Commission. Is that correct?---Well, those changes occurred on the 22nd, I think it was, of April, I think that was Easter Tuesday.
PN497
Yes, that is correct. And it is true, isn't it not, that Mr Schneefuss came to you after you made this decision and said that, "I don't agree with the - where you are sticking my staff. I don't like it." Your say would go, wouldn't it? You might try and accommodate him, but your say would go?---I think we discussed the matter first.
PN498
Yes?---Yes.
PN499
Yes, you are a fair person. But at the end of the day, if you couldn't reach a decision - - -?---Well, look, at the end of the day I guess I am ultimately responsible for the Centre.
**** ANTHONY JOHN TIGCHELAAR XXN MR JONES
PN500
Obviously, yes?---But we would, I stress, we would discuss the matter.
PN501
Of course. You would attempt to reach agreement but in circumstances where you couldn't reach agreement, what you say would go. So at the end of the day, Telstra decides where employees are going to be seated in the Centre. At the end of the day?---Yes.
PN502
Yes?---Yes.
PN503
Okay?---Now that is, when I say yes, we don't mean specifically who sits where or anything like that.
PN504
That is right?---It was what teams, you know, were sitting where.
[11.00am]
PN505
Yes. And in relation to - in your second statement, you also refer to some changes that occurred n relation to team leading and supervision; is that correct?---From the agency side, yes.
PN506
And you say that by and large, as of the date -if you could refresh my memory, by and large as of 22 April, the majority but not all of Dorothy Farmer employees are supervised by Dorothy Farmer team leaders, and by and large all of - well, sorry, I withdraw that. Exclusively, all of the Telstra employees are supervised by Telstra managers, is that correct?---Telstra employees are - yes, report to Telstra managers. That has always been the case.
PN507
Yes?---And agency employees report to agency team leaders.
**** ANTHONY JOHN TIGCHELAAR XXN MR JONES
PN508
Just answer me this, if you could, Mr Tigchelaar, if a Dorothy Farmer employee had a customer on the line, and this customer said, I don't like the way that I am being dealt with, and I want to speak to the most senior manager in the place, would that - that call would go to through you or another Telstra manager, wouldn't it?---Not in the first instance, no. It would go to - through the team manager. We try, you know, but as the most senior person in the place - - -
PN509
Yes?---Yes.
PN510
It wouldn't go to Celia Fischer, would it?---No.
PN511
No. It would come to you, the escalation would be to you?---Correct.
PN512
So you are the ultimate - the buck stops with you, if I can put it like that?---There is people beyond me, but in the Centre, yes, the buck stops with me.
PN513
In the Centre, you are the man?---Yes.
PN514
You know Mr Jones, don't you? Mr Hayden Jones, yourself, Mr Jones here in the courtroom?---Yes, yes.
PN515
You have met him before?---Yes, we have met, yes.
PN516
On 31 March did you write a letter to Mr Jones regarding right of entry?---I have written many letters to Mr Jones in regards to right of entry over the last couple of months.
PN517
Yes. I am going to show you in a moment a letter, if I could. Just read from the second last paragraph of that letter. You say that, in relation to a request by Mr Jones to seek entry to the premises, you write, and I quote:
**** ANTHONY JOHN TIGCHELAAR XXN MR JONES
PN518
I confirm that Telstra will permit your Union access to our premises to hold discussions with our employees, only on the condition that your Union will not hold discussions with any employees of other employers on our site.
PN519
You were referring to Dorothy Farmer employees?---I was referring to any employees, other than Telstra employees on our site.
PN520
Yes. And apart form Telstra employees, the largest body of non-Telstra employees on that site, some 120, 130 of those - it is more. It is about 170. They are Dorothy Farmer employees?---That is correct.
PN521
Yes, clearly you were referring to those?---I was referring to any other employees.
PN522
Have you and Mr Schneefuss ever had discussions regarding the Union and the Union's relationship with Dorothy Farmer employees?
PN523
MR McDONALD: How is this line of questioning relevant to the issue of revocation of dispute finding?
PN524
THE COMMISSIONER: Mr Jones.
PN525
MR McDONALD: Given that on the day you made the dispute finding you specifically indicated you weren't going to allow the proceedings to be sidetracked by issues relating to right of entry.
PN526
MR JONES: It goes to the control over the industrial relationship, Commissioner.
**** ANTHONY JOHN TIGCHELAAR XXN MR JONES
PN527
THE COMMISSIONER: Yes, very well.
PN528
MR JONES: I repeat the question. Have you and Mr Schneefuss ever had discussions regarding Dorothy Farmer employees membership or involvement in the Union?---Look, we may have, but nothing springs to mind.
PN529
Thank you, Mr Tigchelaar. I have no further questions, Commissioner.
PN530
THE COMMISSIONER: Thank you.
PN531
MR McDONALD: I have no questions, Commissioner.
PN532
THE COMMISSIONER: Thanks. Mr O'Grady.
PN533
MR O'GRADY: No re-examination.
PN534
PN535
MR McDONALD: I take it there is no objection to Mr Tigchelaar being excused?
PN536
THE COMMISSIONER: I excused him.
PN537
MR McDONALD: Thank you.
PN538
MR O'GRADY: Thank you, Commissioner.
PN539
THE COMMISSIONER: No further witnesses, Mr McDonald?
PN540
MR McDONALD: No, that is the evidence, Commissioner, in support of the application.
PN541
THE COMMISSIONER: Mr O'Grady.
PN542
MR O'GRADY: Commissioner, it is my understanding that it might be Mr Jones's turn next. The position as between ourselves and the CPSU concerning their witnesses is that I have just one or two questions I wish to put to Mr Hayden Jones.
PN543
THE COMMISSIONER: Yes.
PN544
MR O'GRADY: I don't propose to cross-examine Ms Shirley. And whilst I am on my feet, I might say, Commissioner, that I have reached an arrangement with Mr Jones concerning our objections which were notified in relation to Ms Shirley's statement - - -
PN545
THE COMMISSIONER: Yes.
PN546
MR O'GRADY: - - - on the basis that Mr Jones or - I am now informing the Commission that the various quotes in the paragraphs 13 through to 18 of Ms Shirley's statement relate to employees of DFP, who are referred to in the witness statements of the DFP witnesses. In other words, all of those matters that are set out in that statement relate to people with whom we have dealt in our material. On that basis, Commissioner, I withdraw the objection.
PN547
THE COMMISSIONER: All right.
PN548
MR McDONALD: I have two objections to the second statement of Ms Shirley.
PN549
THE COMMISSIONER: The second statement?
PN550
MR McDONALD: Does the Commission actually have that?
PN551
THE COMMISSIONER: Just a moment, I don't think so. I am about to. Yes, Mr McDonald.
PN552
MR McDONALD: I object to the fourth paragraph, which is a - it is purely speculation on the part of Ms Shirley. Obviously Ms Shirley is in a position to give direct evidence about what she heard, but she then purports to speculate as to the meaning of that. That is quite objectionable, in my submission. And the same goes for the opening sentence of paragraph 8. Speculation on the part of Ms Shirley. It is of no probitive value at all, in my submission.
PN553
THE COMMISSIONER: Don't you get an opportunity to ask her why she formed that view?
PN554
MR McDONALD: How can that assist the Commission, with respect? It is completely irrelevant, in my submission.
PN555
THE COMMISSIONER: Yes. Mr Jones.
PN556
MR JONES: We ask that the witness be called, and that the statement be sworn, and that the evidence be included in its totality, Commissioner. To the extent that I understand Mr McDonald raises an objection as to relevance, I understand, that can be - - -
PN557
THE COMMISSIONER: Well, I don't think it was relevance. It was - - -
PN558
MR McDONALD: Speculative - the evidence is speculative.
PN559
THE COMMISSIONER: Yes. Yes. It was - - -
PN560
MR McDONALD: Mr Jones could have cross-examined Mr Tigchelaar. He could have said to him, Mr Tigchelaar, did you receive a directive from senior management about this. He didn't do so. He could have said to Mr Tigchelaar, are you punishing the employees at Ballarat? He didn't do so. Direct probitive evidence on the point. That is the way the proceedings should be run, with respect. Not on the basis of speculation in the mind - not of another party seeking to put a spin on things, of no assistance at all to the Commission.
PN561
THE COMMISSIONER: Yes. Mr Jones.
PN562
MR JONES: Commissioner, this statement is in response to the second statement of Mr Tigchelaar. Mr Tigchelaar swears to changes that he has put into place in the Centre at Ballarat, from the 22 April. It seems to the Union that is more than a coincidence that these changes occurred after that date, and we seek to lead evidence as to the impact that that has had in the workplace and the effect on employees. We believe it is relevant to the issue and to the objection that Telstra raises. It goes directly to the issue of motivation and control.
PN563
THE COMMISSIONER: Well, I propose to exclude paragraph 4. I am going to leave the opening sentence of paragraph 8 in. It might be a question of weight, but it is something that can be explored. Yes, Mr Jones.
PN564
PN565
THE COMMISSIONER: You remain under your previous oath. Please sit down.
PN566
MR JONES: Ms Shirley, have you prepared a statement for today's proceedings?---Yes.
PN567
Do you have it with you?---Yes.
PN568
Yes. And it is headed, The Second Statement of Marg Shirley; is that correct?---Yes.
PN569
Are there any changes that you would like to make to that statement?---Yes, the - from the one, two - the first word of the third sentence in paragraph 8. I would like to change that from "the" to "some."
PN570
THE COMMISSIONER: Say again, the third - - -?---The third sentence in paragraph 8.
PN571
Yes?---To "some," not "the."
PN572
MR JONES: Are there any other changes that you wish to make to that statement?---Yes, there was. No, not this statement, I don't believe. No, not this statement.
PN573
You have also prepared another witness statement in these proceedings; that is correct?---Yes.
PN574
And do you have a copy of that with you?---Yes.
**** MARGARET SHIRLEY XN MR JONES
PN575
It is entitled, The Witness Statement of Ms Margaret Shirley?---Yes.
PN576
Yes. And are there any changes that you wish to make to that statement?---Yes. Paragraph 8, I would like to insert the word, ordinary, between - - -
PN577
THE COMMISSIONER: Just a moment, please?---Sorry.
PN578
It is all right, I have just got - just got to pick it up before you - right, sorry, it was under the other one; paragraph 8, yes?---I would like to insert the word "ordinary" as the third last word of that paragraph.
PN579
Ordinary time worked?---Yes.
PN580
Yes, thank you.
PN581
MR JONES: Are there any other changes that you wish to make to that statement?---Not at this stage. No.
PN582
So with the exception of the changes that you have made to your first and second statement, are those statements true and correct to the best of your knowledge?---To the best of my knowledge they are.
PN583
PN584
MR JONES: I have no further questions for Ms Shirley.
**** MARGARET SHIRLEY XN MR JONES
PN585
THE COMMISSIONER: Thank you. Mr McDonald.
PN586
MR McDONALD: I have no cross-examination.
PN587
THE COMMISSIONER: Thank you.
PN588
MR O'GRADY: No cross-examination, Commissioner.
PN589
PN590
MR JONES: Commissioner, I understand Mr O'Grady wishes to cross-examine Mr Jones, H. I think Mr Jones does not have any new statement to make in these proceedings.
PN591
THE COMMISSIONER: CPSU1.
PN592
PN593
THE COMMISSIONER: You remain on your previous oath. Please sit down, Mr Jones. Yes, Mr O'Grady.
PN594
MR O'GRADY: Thank you, Commissioner.
PN595
Mr Jones, it is the case, isn't it, that no employee of Dorothy Farmer has been terminated as a result of raising concerns with working the rotating shift or working evening work?---No, not to my knowledge.
PN596
Yes. And in fact there has been quite a deal of consultation with a number of the employees of Dorothy Farmer about the rotating rosters and the evening work, hasn't there?---Yes, there have been a number of meetings at which alternative arrangements have been made with employees that had concerns.
PN597
And you have attended those meetings, haven't you?---I have attended three to four of those meetings. However, there have been other discussions which I wasn't present at between some of our members and Markus Schneefuss.
PN598
Very well. I have no further questions, Commissioner.
PN599
PN600
THE COMMISSIONER: Now, Mr O'Grady.
PN601
MR O'GRADY: Thank you very much, Commissioner. I might first of all call Mr Phipps, Commissioner. I understand from what you said earlier that you have some questions for him.
PN602
PN603
THE COMMISSIONER: Please sit down, Mr Phipps. Thank you for attending.
PN604
MR O'GRADY: Commissioner, would it be worthwhile if I put Mr Phipps' statement to him and get him to adopt that?
PN605
THE COMMISSIONER: Yes.
PN606
MR O'GRADY: And we perhaps tender that?
PN607
THE COMMISSIONER: Thank you very much.
PN608
MR O'GRADY: Thank you, Commissioner.
PN609
Perhaps, Mr Phipps, if I can get you to state for the record your full name and address?---Yes, Peter Graham Phipps, and I reside at 3 Davis Avenue in Camberwell in Victoria.
PN610
Very well. If I could hand you a copy of this document, is that a statement that you have prepared in relation to these proceedings?---It is.
PN611
And are the contents of that statement true and correct?---Yes, in my belief they are.
PN612
**** PETER GRAHAM PHIPPS XN MR O'GRADY
PN613
MR O'GRADY: And I have no further questions, Commissioner.
PN614
THE COMMISSIONER: Mr Phipps, just one matter. You refer at paragraph 7 that you instructed Mr Hargraves to consent to a proposed award, I think it was, at the time?---That is correct.
PN615
Then you refer at paragraph 8 that you had not instructed him to request the matter to be adjourned, nor were you aware of the adjournment until later that day?---That is correct.
PN616
Do you now know the reason why Mr Hargraves sought that adjournment?---Mr Hargraves has informed me of that reason, yes.
PN617
Can you tell me that reason?---Commissioner, Mr Hargraves advised me that he had some communications from Telstra on a commercial matter which he felt would influence the parties' views, the decision that they had made.
PN618
Yes, thank you. Mr McDonald, can you take steps to obtain a copy of that letter?
PN619
MR McDONALD: A copy of the letter?
PN620
THE COMMISSIONER: From Telstra to Mr Hargraves.
PN621
MR McDONALD: Yes.
PN622
THE COMMISSIONER: Thank you. I have no further questions. Are there any questions that arise that anybody would wish to ask?
**** PETER GRAHAM PHIPPS XN MR O'GRADY
PN623
MR JONES: Commissioner, it may be that - well, I make this request, that if the Commissioner is provided with a copy of the letter then it is proper that it be provided to the parties to these proceedings.
PN624
THE COMMISSIONER: Well, I will hear submissions about that at the time as to whether or not there is any issue of commercial-in-confidence.
PN625
MR JONES: Yes. We have learnt through the question you have asked Mr Phipps that a letter had a direct bearing on discussions that were occurring and negotiations that were occurring in relation to industrial instruments. The CPSU apprehends that it would have a direct bearing on these proceedings. There are remedies available if any party has concerns about the commercial-in-confidence nature, but if they have a bearing, as we apprehend they do, then we are entitled to see that document and perhaps examine Mr Phipps on the contents of it.
PN626
THE COMMISSIONER: I see. Well, I will excuse Mr Phipps for the time being and you can let me know whether or not anything arises if there is some issue about that, but I will wait until I receive a copy of the letter and then if Mr McDonald wishes to make any submission about that, I will hear him.
PN627
MR JONES: Certainly, Commissioner.
PN628
THE COMMISSIONER: No other questions for Mr Phipps?
PN629
MR O'GRADY: No, sir.
PN630
PN631
THE COMMISSIONER: Perhaps - yes, I was going to say if you could tell your instructing solicitor to take steps to arrange for the production of that letter. Yes, now, Mr O'Grady.
PN632
PN633
THE COMMISSIONER: Please sit down. Thank you.
PN634
MR O'GRADY: Ms Fischer, I might ask you could state your full name and your address for the purposes of the transcript?---Celia Fischer, 379 Collins Street, Melbourne.
PN635
And you have prepared a statement in relation to these proceedings, is that correct?---I have.
PN636
And are the contents of that statement correct?---There are two things that I would like to change on the statement.
PN637
Yes, certainly.
PN638
THE COMMISSIONER: Just before you do - - -
PN639
MR O'GRADY: Very well.
PN640
THE COMMISSIONER: - - - I had it readily to hand and now - I now have it readily to hand. Yes, thank you, Mr O'Grady.
PN641
MR O'GRADY: Perhaps if you could take the Commissioner to those please, Ms Fischer?---Page 2, paragraph 4, it should read in "2000" not "2002". And page 4, paragraph 19, it is my understanding now that Markus Schneefuss was not at that meeting that was held on 7 March and that the conversations that took place between Markus and the staff in fact happened on 11 March.
PN642
Yes, very well?---That is all of the changes.
**** CELIA FISCHER XN MR O'GRADY
PN643
THE COMMISSIONER: Sorry. So he wasn't at a meeting held by Jenny Dower; is that correct?---That is correct.
PN644
And after that - so is the whole of the first sentence deleted?---Yes.
PN645
Yes. And then when it talks about asking for volunteers to work evening shift, that was a meeting that occurred on 11 March?---As part of the 11 March meeting, yes.
PN646
I see. And that is covered in paragraph 20, the 11 March meeting?---Yes.
PN647
Yes, I follow?---That is right.
PN648
Thank you.
PN649
PN650
MR O'GRADY: I have no further questions of Ms Fischer.
PN651
THE COMMISSIONER: Thank you. Mr Jones.
PN652
**** CELIA FISCHER XXN MR JONES
PN653
MR JONES: Ms Fischer, you have been working with Telstra for - sorry, I withdraw that - with Dorothy Farmer for 2-1/2 years?---That is correct.
PN654
And has that job been solely responsible for the Telstra contract?---Most of it, yes.
PN655
You are based in Melbourne or Ballarat?---Melbourne.
PN656
So you work out of the Melbourne office?---That is correct.
PN657
You don't work out of the Ballarat office. And prior to you taking up a position with Dorothy Farmer, you worked for Telstra for?---Fifteen years.
PN658
For 15 years, okay. And you were engaged as a call centre manager, is that correct?---That is correct, for part of that time.
PN659
For part of that time, and for obviously 15 years you had a number of roles within Telstra over that period?---I have.
PN660
And for two and a half years now, you have been working in Telstra - sorry, in Dorothy Farmer and principally on the Telstra contract. Do you consider Dorothy Farmer to be a fair employer?---Absolutely.
PN661
Okay. And offers fair and reasonable terms and conditions?---I do.
PN662
Can I ask you some questions about those terms and conditions of employment. Say, for example, sick leave: the employee does not get paid for sick leave, do they?---That is part of the 25 per cent casual loading that they get on the ordinary hours.
**** CELIA FISCHER XXN MR JONES
PN663
Right, we will come to that in a moment. But they don't get paid if they have a day sick?---that is right.
PN664
You don't sack them, do you?---No.
PN665
No. So if an employee was off for one day - three days, four days because they were sick, you wouldn't sack them?---No.
PN666
No. You would expect them to submit a doctor's certificate, I assume?---Perhaps.
PN667
Yes. In any circumstances?---Sometimes yes. It depends on the circumstances around when they have been off. If it is a recurring problem, we may ask for a doctor's certificate.
PN668
So if somebody has been sick for a period of time or on a recurring basis, you would require a doctor's certificate, is that - in other circumstances you require that they do no more than give you a phone call prior to - if they were rostered on a shift, to let you know that they were sick?---That is correct. We would prefer that people tell us the real reason for why they are going to be away.
PN669
Of course, yes?---Because they are temporary staff.
PN670
Assuming that they are sick though. You would assume - you require that they give you a call before the shift?---That is correct.
PN671
To tell you. Yes, okay. And in relation to annual leave, you don't pay employees for annual leave, do you?---No, we don't.
PN672
But they are entitled to take leave?---They are.
**** CELIA FISCHER XXN MR JONES
PN673
Yes, but they must give you notice?---We ask that they do, yes.
PN674
How much notice do you normally ask that they give?---It really depends on the circumstances. Some people may say the day before that they need to take some time off. We encourage them to let us know about two weeks in advance.
PN675
About two weeks in advance?---Mm.
PN676
That would be normal, that would be the normal courtesy that you would expect for one of these employees?---If it is planned leave, yes.
PN677
Yes, for planned leave. Obviously things come up from time to time and, as a fair employee, you attempt to accommodate that; correct?---That is correct.
PN678
And obviously in relation to maternity leave, if somebody got pregnant, you wouldn't dismiss them, would you?---No, we don't.
PN679
You would - they would be entitled to maternity leave and to return to their work on the completion of maternity leave, wouldn't they?---We would encourage them to let us know when they are available to again work.
PN680
Yes?---And we would then look for positions for them to work in.
PN681
Yes. So you would expect that they would come back to work in their job after they had their baby?---We would like to think that they would.
PN682
Yes. I assume considerable investment has gone into these people so if they are jolly good people you want to hang on to them, I assume?---That is correct.
**** CELIA FISCHER XXN MR JONES
PN683
And the rosters that you speak of in your evidence, these are five week rosters, aren't they?---At the moment, yes.
PN684
Yes. So an employee, you say it is fair I would assume because an employee has five weeks notice of when they are - where they are going to be working over the next five weeks, that they know that in advance?---That is right.
PN685
And you say that is fair and reasonable, I assume?---That is my understanding.
PN686
Yes. So an employee, one of these casual employees has five weeks notice in advance of when they are going to be working for the next - what hours of work they are going to be working for the next five weeks?---That is my understanding that that is the way it works.
PN687
Yes. It is also your evidence at paragraph 16 I believe that the employees who were engaged after June, in the period shortly after 22 June 2002 did so in response to the ad that you have attached. I believe it is attachment 2 to your - - -?---I haven't got a copy of the ad.
PN688
THE COMMISSIONER: Don't you have the attachments with you?---I don't.
PN689
All right. Just a moment. Mr O'Grady will get them for you?---Thank you.
PN690
MR O'GRADY: I have an unmarked copy of the statement, Commissioner, with the attachments.
PN691
THE COMMISSIONER: Yes, thank you.
PN692
MR JONES: I am a slow reader, Ms Fischer, so you take your time to read that?---I am looking at the 22 June one?
**** CELIA FISCHER XXN MR JONES
PN693
I think that is it. Is that the one behind attachment CF2?---Yes.
PN694
Yes, okay. And you say in paragraph 16 of your statement that a group of employees applied in response to that?---That is correct.
PN695
That is correct, yes. Did you conduct those interviews, by the way?---No, I did not.
PN696
No. Did you conduct any of them?---I couldn't tell you if I did or I didn't. I do participate in some interviews at different times.
PN697
Yes, but you didn't; to the best of your knowledge, you didn't participate in those?---I couldn't honestly say whether I did or didn't.
PN698
Yes, okay. So if you didn't participate in those interviews, you couldn't really say what was said during those interviews, could you?---No.
PN699
Commissioner, that has a consequence for paragraph 17 and 18 of the evidence.
PN700
THE COMMISSIONER: That could be a matter for submissions.
PN701
MR JONES: Now, can I just ask you a few questions regarding the document at paragraph - sorry, at attachment 1 to your statement. I apologise, it is CF1, the annexure at CF1 of your statement. This is your understanding of the contract of employment between Dorothy Farmer and its employees, is that correct?---That is correct.
PN702
Are any other documents given to employees at the time that they start?---Generally no.
**** CELIA FISCHER XXN MR JONES
PN703
Generally no. So there are no other documents, no letters?---It would depend on the type of work that they are engaged to do.
PN704
Yes?---There would be times when a letter may be accompanied - - -
PN705
A letter?---Yes, a letter or a contract. it really depends on the type of work.
PN706
Okay, but to the best of your knowledge there are no other documents that are provided at the time people are employed?---Generally no.
PN707
Generally no. Can you be more specific than that?---Are we talking about for Ballarat?
PN708
MR O'GRADY: Well, perhaps, Commissioner, Mr Jones could be a bit more specific as to which employees he is talking about.
PN709
MR JONES: I am talking about the employees - I apologise, Ms Fischer, that is fair enough. The employees who are engaged at the Ballarat call centre?---Mm.
PN710
There are no other documents?---Well, we did provide another document, as you are aware, with that employment agreement when we advise people that their - the current temporary assignment was ending. We had an opportunity for other assignments that were commencing and, to ensure that everyone was very clear on the expectations of the hours and the span of hours - - -
PN711
Yes?--- - - - another letter was provided to staff to clarify and to let them know how much they would be paid, and things like that.
PN712
Yes, okay. But that post-dated their employment, didn't it; it was after they were employed that they were given that letter, wasn't it?---It was after they had been given notice that the original assignment was ending.
**** CELIA FISCHER XXN MR JONES
PN713
You were making changes and you were requiring them to sign a new letter; that is correct?---A new employment agreement.
PN714
Yes, okay. Can I just show you a document, Ms Fischer. That front page, that looks to me like the same copy, the standard copy, that is attached at CF1 to your statement. Turn over two pages; do you recognise that document?---Yes, I do.
PN715
Okay. Is this given to employees at the time they start work?---It is at the induction stage.
PN716
At the induction stage?---Mm.
PN717
Okay, but not at the time that they agree to start work?---It is given to them at the same time as they sign the temporary employment agreement.
PN718
Right, okay. Thank you. Can I ask you to turn again to that attachment at CF1, and paragraph 2 of CF1. Is that true and correct; is that your understanding of the arrangement between yourself and your employees?---That is my understanding.
PN719
Yes, okay. And at paragraph 3 you say that the employees only get paid for the hours they work. Yes, that is correct. And they must have their timesheets signed and authorised by a Telstra employee; that is correct?---That is not - I don't know what happens with the timesheets, who authorises them. But it is my understanding that they get paid for - well, I know they get paid for the hours that they actually work.
PN720
Well, it is a bit more than that, isn't it; it is the hours that the client has authorised that they have worked; is that your understanding of what paragraph 3 means?---
**** CELIA FISCHER XXN MR JONES
PN721
So if an employee says: I worked 15 hours today, and the Telstra person who signs the timesheet says: well, no, you haven't, you have only been here 7-1/2 hours and I have got the statistics to prove it, it is not the 15 hours you pay them for, is it, it is the 7-1/2?---Well, yes, but I am not sure who actually signs off the timesheet; whether that would be a Telstra person or another person.
PN722
Okay. Can I ask you to have a look at paragraph 12. Is it your understanding that paragraph 12 is an accurate reflection of the relationship between yourself and your employees and the client?---That is my understanding.
PN723
So it is true then that Telstra may, at its discretion, stand down an employee if there is a strike or a breakdown in machinery or a flood that wipes out the centre, they can stand down the employee and you don't pay them because they haven't actually worked?---That is my understanding.
PN724
Yes, okay. Thank you.
[11.39am]
PN725
Now, you mentioned a little earlier the issue of casual loading. We were talking about the hourly rate of pay, or the base rate of pay, I think it is referred to in this document. You say in your evidence that the base rate of pay for Monday to Friday is $17.03, is that correct?---That is correct.
PN726
Yes. What component of that $17.03 - if I can put it in another way. How much of that $17.03 is in respect of annual leave?---I don't know.
PN727
You don't know. You don't know, I assume, how much of that $17.03 is in respect of sick leave?---No, I don't.
PN728
So you could not tell me, I assume, what the - well, I will withdraw that. It is true, is it not, that the $17.03 is the actual rate of pay, that is the full rate of pay, is that correct?---That is correct.
**** CELIA FISCHER XXN MR JONES
PN729
You have been involved in recruitment of employees although not necessarily the interview. Is it part of your role to - you are involved in the management of recruitment exercises? Do you get involved in that process?---Generally, no, but sometimes I do get involved.
PN730
Do you have any knowledge at all about the recruitment processes that occur within Dorothy Farmer at a managerial level?---Yes.
PN731
Yes, okay. Do you know what it costs Dorothy Farmer to recruit a new employee?---No, I don't.
PN732
You would agree with me, though, wouldn't you, that it is actually a significant cost?---There is a cost involved, yes.
PN733
And what does that cost include?---It would include - staff are involved in the recruitment process. It would include materials that are required. If we need to hire a hall or something else or a venue.
PN734
So you would hire a hall?---Well, it depends on the recruitment.
PN735
If it is a big recruitment exercise you would hire a hall and people would come in and they would talk to - how many managers would you have involved in one of those?---It depends on how many people we have got at that particular recruitment session.
PN736
Typically?---Usually, there is one employee to two people.
PN737
One employee for every two persons?---Who are involved.
**** CELIA FISCHER XXN MR JONES
PN738
Who are being interviewed for the process?---That is right. If it is an assessment centre process. If it is a one-on-one interview process, then one person.
PN739
Let me just understand this. If you are recruiting 12 employees you would have six Dorothy Farmer employees interviewing those 12 employees. Have I understood that correctly?---No. We may run two sessions of six. So that there would be three, perhaps four people involved.
PN740
Three. And how long would that typically take?---Approximately three hours.
PN741
Three hours for a group of - for each interview?---Three hours for the recruitment process. So six people will go through the same recruitment process at the one time.
PN742
And then there is advertising costs, I assume?---That is correct.
PN743
Yes. And do you have any knowledge of what Dorothy Farmer - it costs Dorothy Farmer to do the induction process?---No, I don't.
PN744
It would be a considerable cost though?---It is usually one person running the induction.
PN745
One person running the inductions. And you are also - I assume you are - are you getting any money from Telstra for the time that those employees are being trained?---Inducted, no.
PN746
No. So it is a cost to Dorothy Farmer for the entire period. I think the evidence earlier was it might take anywhere between one and three weeks. So Dorothy Farmer would be paying the cost during that one to three weeks. You wouldn't be billing Telstra for the period that the employees are in training?---The induction training only takes an hour or an hour and a half and that is done prior to a person starting employment with us at Ballarat.
**** CELIA FISCHER XXN MR JONES
PN747
I see. So of the one to three weeks training that was talked about earlier only one to two hours is run by Dorothy Farmer?---No, that is separate completely. I think Anthony was talking about induction training which is for Telstra and which is completely separate to what we do.
PN748
Paragraph 23, the last sentence. You weren't at that meeting were you?---I don't recall.
PN749
No. So you have no direct knowledge about what occurred at that meeting?---No, not from my recollection.
PN750
Or whether any issues were raised? You would have no knowledge of what issues were raised if you weren't there?---No, but I was there when three people spoke to Donna in the afternoon, who came separately to her. So, not what happened in the meeting but outside of the meeting I am aware of three people who did. And I was present at those meetings.
PN751
Yes. The meeting described at paragraph 21 of your statement, you weren't present at that meeting either, were you?---No, I was not.
PN752
So you don't know how the roster was devised; you weren't present at the meeting?---No, I was not.
PN753
You have no direct knowledge, do you?
PN754
Look, I think that is it. Thank you very much, Ms Fischer.
PN755
Commissioner, I have no further questions.
**** CELIA FISCHER XXN MR JONES
PN756
PN757
MR O'GRADY: Ms Fischer, if I can take you to paragraphs 17 and 18 of your statement, you will recall Mr Jones asking you some questions about those two paragraphs. Did you issue any instructions to those who were carrying out those interviews?---Yes, I did.
PN758
And were those instructions consistent with what you have said in paragraph 17 and 18 of your statement?---That is correct.
PN759
Yes. I have no further questions, Commissioner.
PN760
PN761
MR O'GRADY: Commissioner, before I call Mr Schneefuss, I might just take the opportunity to tender the witness statement of Donna O'Rourke. I might forget if I leave it until after Mr Schneefuss leaves the witness box.
PN762
THE COMMISSIONER: Yes.
PN763
MR O'GRADY: In accordance with the Commission's directions, the CPSU notified us that they did not wish to call Ms O'Rourke for cross-examination so I will merely tender the statement.
PN764
PN765
MR JONES: Commissioner, while we are dealing with the subject matter of forgetfulness in tendering, I seek to tender the document which I showed to Ms Fischer in the witness box.
PN766
THE COMMISSIONER: I see. Yes, very well. Any objection to that?
PN767
PN768
MR JONES: Thank you, Commissioner.
PN769
MR O'GRADY: Very well, Commissioner, I might call Mr Schneefuss, please.
PN770
PN771
MR O'GRADY: Mr Schneefuss, I might ask you to state your name and address for the purposes of the transcript, please?---Markus Christian Schneefuss, 379 Collins Street, Melbourne.
PN772
Very well, and, Mr Schneefuss, you have prepared two witness statements in relation to this proceedings; that is correct, isn't it?---Correct.
PN773
And do you have those in front of you?---Yes, I do.
PN774
And are the contents of those statements true and correct?---Yes, they are. However, there is - I just would like to confirm the changes made to Celia Fischer's statement, paragraph 19.
PN775
Yes. So what Ms Fischer said in relation to the meeting on 7 March is correct?---On the 7th, that is correct.
PN776
Very well. I tender those - - -
PN777
THE COMMISSIONER: I am sorry, is that paragraph 2 of your statement?
PN778
MR O'GRADY: It is paragraph 2, Commissioner, yes.
PN779
THE COMMISSIONER: And is that first sentence to be deleted, Mr O'Grady?
PN780
MR O'GRADY: Commissioner, there is no need to make any change to Mr Schneefuss' statement because he doesn't say that he was present at the meeting.
PN781
THE COMMISSIONER: I see. And following that meeting, that is 11 march.
**** MARKUS CHRISTIAN SCHNEEFUSS XN MR O'GRADY
PN782
MR O'GRADY: That is right.
PN783
THE COMMISSIONER: Yes.
PN784
MR O'GRADY: And you will see - I suppose the comment that Mr Schneefuss makes relates to the cross-reference in paragraph 5 of his statement which adopts the contents, or accepts the contents of paragraph 19. So it is said for that reason, Commissioner, otherwise those statements are tendered.
PN785
MR O'GRADY: If the Commission pleases, I have no further questions.
PN786
THE COMMISSIONER: Thank you, Mr Jones. E6 is both statements, by the way; it is the original witness statement and the second statement of Mr Schneefuss.
PN787
MR O'GRADY: If the Commission pleases.
PN788
PN789
MR JONES: Mr Schneefuss, can I ask you to look at paragraph 5 of your statement - sorry, your first statement?---Yes.
PN790
Do you recall saying that?---Yes, I do.
**** MARKUS CHRISTIAN SCHNEEFUSS XXN MR JONES
PN791
Yes. Can I show you a copy of a letter, Mr Schneefuss. Please, Mr Schneefuss, take time to read this letter.
[11.53am]
PN792
Do you recall receiving this letter, Mr Schneefuss?---Yes, I do.
PN793
Yes, you do. And you recall the circumstances surrounding that?---Yes, I do.
PN794
Is it true to say that you wouldn't forget those circumstances, isn't it?---No, not in a hurry.
PN795
Not at all. So when, in paragraph 5 of your statement, you say that no officer of the CPSU has raised specific issues with you concerning the five-week roster, that is not correct, is it?---No, it isn't.
PN796
Why did you write that if it wasn't correct?---I guess at the time, going through a whole lot of documentation and also, I guess, trying to balance the job that I do in Ballarat it was something that I overlooked.
PN797
Have you overlooked anything else in your statement?---I don't believe so.
PN798
It is true, isn't it, that you have advised employees that following today's proceedings that they will be offered a new contract of employment. That is correct, isn't it?---I don't recall that.
PN799
On Monday you never advised a group of employees that after today's proceedings that they would be offered a new contract of employment once this was over?---I don't recall those exact words. I do recall having conversations with - with employees.
**** MARKUS CHRISTIAN SCHNEEFUSS XXN MR JONES
PN800
Do you recall any of the employees that you had this conversation with?---No, I don't.
PN801
So you don't recall having a conversation with Ms Jacquie Daley where you said words to the effect, on Monday, that as of - "after today's proceedings there would be no further" - "that a new contract of employment"?---My conversation with Jacquie Daley was, firstly, concerning a change of role within the centre and that depending on today's outcome, you know, we would need to, I guess, have a look at, you know, what the outcome, firstly, is and then, you know, make decisions as to what happens in the future. I did - I do remember that, yes, we did talk about contracts but I didn't specifically say that there would need to be new contracts signed by everyone.
PN802
Yes, but you do have it in mind that new contracts will be signed after today's proceedings?---Um - - -
PN803
Required to be signed?---Possibly. Possibly. I guess, again, it depends on the outcome of the hearing.
PN804
Yes, but there is a plan in place, is there not, Mr Schneefuss, to make employees sign new contracts of employment after today's proceedings?---Not from DFPs point of view, no. We don't have a plan in place.
PN805
Thank you, Commissioner, I have no further questions.
PN806
THE COMMISSIONER: Thank you. Mr McDonald.
PN807
MR McDONALD: No, Commissioner.
PN808
**** MARKUS CHRISTIAN SCHNEEFUSS RXN MR O'GRADY
PN809
MR O'GRADY: Mr Schneefuss, in relation to what happens after today, is it right that any changes would be the subject of further discussion with Ms Daley?---I believe so, yes.
PN810
And if I can take you to paragraph 6 of your second statement - paragraphs 5 and 6 deal with those discussions with Ms Daley over the last week, don't they?---Yes, they do.
PN811
And the last line of that indicates that the current position remains that the assignment remains open?---That is correct.
PN812
Yes. No further questions, Commissioner.
PN813
PN814
THE COMMISSIONER: Is that the evidence?
PN815
MR O'GRADY: That is all the evidence on behalf of DFP Recruitment Services, Commissioner.
PN816
THE COMMISSIONER: Has there been any discussion as to who goes next?
PN817
MR McDONALD: Well, I would like to go next but I realise you have called for the production of a letter and I don't think I can go until I see what is in the letter. Just wonder how we might proceed - - -
PN818
THE COMMISSIONER: Would it be convenient to adjourn now until 2 o'clock?
PN819
MR McDONALD: Look, that probably would be convenient. I can say that my submissions - I don't expect that I will be more than an hour with my submissions so we should be able to finish today. Thank you, Commissioner.
PN820
THE COMMISSIONER: All right. I will adjourn until 2 o'clock.
LUNCHEON ADJOURNMENT [11.58am]
RESUMED [2.06pm]
PN821
THE COMMISSIONER: Yes, Mr - - -
PN822
MR McDONALD: Thank you, Commissioner. Commissioner, over the luncheon adjournment we have made arrangements for Mr Phipps to re-attend the Commission and I will just make an application for him to be recalled and I wish to put to him the correspondence that he referred to in exchange with you and to tender it into evidence through him and ask him one or two questions about it. So, if I may, Mr Phipps could be recalled.
PN823
THE COMMISSIONER: Do you know whether he has seen it?
PN824
MR McDONALD: Beg your pardon?
PN825
THE COMMISSIONER: Do you know whether he has seen it?
PN826
MR McDONALD: I have not made inquiries about that. That is a matter I thought perhaps could be the subject of evidence, Commissioner.
PN827
PN828
MR McDONALD: Thanks, Mr Phipps. Now you gave some evidence before lunch in response to some questions from the Commissioner. I wonder if I can hand the witness a document and hand up a copy to the Commissioner, there is of course a copy for Mr Jones. You made reference to some correspondence from Mr Hargreaves. Is this the letter that you were referring to?---This is the letter that Mr Hargreaves said that he had received, yes.
PN829
Yes, thank you. Well, I will tender that if I may.
PN830
PN831
MR McDONALD: And now are you able to say - your statement is dated 8 May 2003 and the letter is dated 30 April 2003. Are you able to say whether or not you had seen the letter prior to the date of making your statement?---I had.
PN832
You had seen it?---Yes.
PN833
So the paragraph 11 of your statement where you say:
PN834
I am not aware of any circumstance that would cause my instructions to agree to the terms of the roping-in award to change.
PN835
You give that evidence in light of the knowledge of this letter?---I do.
PN836
Thank you. Nothing further.
PN837
PN838
MR McDONALD: Thank you, Commissioner. Now the submissions that I make of course are directed to the application for revocation. There are two issues, it is submitted, that are relevant to the Commission's consideration of this matter. The first is, is there evidence before the Commission of a demand against Telstra whether in its capacity as an employer or a non-employer, which is capable of giving rise to a dispute finding of an industrial dispute within the meaning of section 4 of the Act.
PN839
The second issue is, assuming there is such evidence, if the claim is properly characterised as one against Telstra as a non-employer, is the relationship between Telstra and Dorothy Farmer such as to enable the finding of an industrial dispute against it. The fundamental submission that we make, Commissioner, is that there is no basis for a finding of industrial dispute against Telstra in any capacity because there is no evidence before you of any demand, any comprehensible demand, against Telstra, the rejection of which could give rise to an industrial dispute.
PN840
In the Gate Gourmet case, to which I referred on the last occasion, perhaps I might hand up a copy. You might already have a copy of that, I think, in the last occasion. If one isn't at hand, we are happy to provide another copy.
PN841
THE COMMISSIONER: Thank you.
PN842
MR McDONALD: And of course, Gate Gourmet was a case which considered the reasoning of the High Court in Shell, but it also considered the foundational question in that case of whether or not there was a relevant demand. And at paragraph 30 of the decision of the Full Bench, the Full Bench states:
PN843
While the dicta in Vista Paper Products warned against over concentration on a written demand, it is clear that for an industrial dispute to come into existence there must be a comprehensible demand, a rejection of which will give rise to a dispute.
****
PN844
Now it is submitted on behalf of Telstra that one searches in vain in the present proceedings for any such demand having been made against Telstra. We do note, Commissioner, that in Ms Shirley's statement there is reference to a resolution having been passed, I will just go to that, a resolution and a demand of 10 April. This is - I think this is exhibit CPSU5. And at paragraph 4 of that statement, there is reference to Ms Shirley having participated in the Victorian SDP and CPSU Section Council, a national body of the union:
PN845
In addition to seeking an award for labour hire employees, we have authorised the union to make demands on Telstra about the use of labour hire.
PN846
And there is reference to a resolution which has been passed. Now in its - on the face of that material, that is evidence of a demand having been made against Telstra but of course, Commissioner, the submission we make there is that that post-dates the finding of dispute which you have made. We submit that that is not a matter which can be taken into account in these proceedings. We haven't actually got the letter of demand in evidence but accepting the paragraph 5 of the statement, that is that these demands have been formally communicated to Telstra in a letter of demand signed by the Communications Division on 10 April of this year, one sees that the form of the demand, it sets out what is sought, then it states:
PN847
These demands must be agreed and applied within five working days of service.
PN848
Now that demand, a letter of demand in those terms, is one which attracts the operation of the principles annunciated by the High Court in Deans case. That is, if there was - let us assume that a letter of demand in those terms was actually before the Commission, which it is not, but if it was, the Commission would have to be satisfied in order to act on the basis of that evidence constituted by the letter of demand and log of claims. The Commission would have to be satisfied that the requirements of rule 14 of the Commission's rules had been satisfied and would also have to be satisfied of issues going to authorisation.
[2.15pm]
****
PN849
Our point is simply this, if there was no proper basis for a finding of an industrial dispute on the day when you made such a finding in late March, one cannot, by means of a subsequent conduct, seek to overcome a deficiency which previously existed, that is if there was no industrial dispute in late March. This letter of demand, as evidenced in Ms Shirley's statement, wouldn't provide an evidentiary foundation in these proceedings of the existence of an industrial dispute.
PN850
THE COMMISSIONER: How do I deal with the concept of probability in the definition of industrial dispute? Is that cut down by paragraph 30 of the Full Bench's decision, that the Commission is not entitled to think that an industrial dispute might be probable unless one is - unless a clear demand and rejection is put?
PN851
MR McDONALD: Well, Commissioner, there still has to be something. There still has to be some factual foundation.
PN852
THE COMMISSIONER: Yes. It is constitutional fact.
PN853
MR McDONALD: Yes, it is a constitutional fact.
PN854
THE COMMISSIONER: Yes.
PN855
MR McDONALD: We don't have reasons for your decision in relation to your original dispute finding.
PN856
THE COMMISSIONER: No.
PN857
MR McDONALD: And there was no submission put to you about probability or industrial situations. There was no purported reliance upon any other limb of the definition of industrial dispute. There is reference in the material to the demands against DFP. Mr Jones attempted to articulate the basis upon which a dispute finding should be made against Telstra. And, with respect, Commissioner, you simply can't go out - - -
****
PN858
THE COMMISSIONER: I understand that, but you are not trying to confine the definition of industrial dispute by the Gate Gourmet decision, are you?
PN859
MR McDONALD: I am submitting, Commissioner, that in all circumstances there must be - - -
PN860
THE COMMISSIONER: A comprehensible demand and a rejection. Otherwise an industrial dispute can't be found.
PN861
MR McDONALD: Yes, or a proper basis for a - proper basis even in terms of the extended definition in paragraph (b) of industrial dispute is so finded.
PN862
THE COMMISSIONER: Yes.
PN863
MR McDONALD: Can I just come back to the point - can I come back to the issue concerning the evidence of Ms Shirley. What I wanted to hand up to you, Commissioner, was the decision of the Commission in - the High Court in Deans case. And in particular, I refer you to paragraph 20 at point 8 of the page, the final sentence of the preceding paragraph, in the - - -
PN864
THE COMMISSIONER: I am sorry, my paragraphs - is it numbered on page 17 - no, the paragraphs aren't numbered. Whereabouts - - -
PN865
MR McDONALD: On page 20.
PN866
THE COMMISSIONER: On page 20.
PN867
MR McDONALD: On page 20 of the decision.
****
PN868
THE COMMISSIONER: Yes, thank you.
PN869
MR McDONALD: Have you got that?
PN870
THE COMMISSIONER: Yes.
PN871
MR McDONALD: And immediately before the last paragraph which starts:
PN872
And in our view.
PN873
THE COMMISSIONER: Yes.
PN874
MR McDONALD: In the final sentence of the preceding paragraph:
PN875
In the final analysis, ratification in these cases does not operate retroactively because the Act is required to be valid and effective when it is done.
PN876
That is the case for the notice to quit:
And in our view, so is the letter of demand, requiring acceptance for log of claims. If non-acceptance of the log within a stipulated period ...(reads)... What is more, there is much to be said for the view that the concept of the disputes proceeding the demand is properly authorised when it is made.
****
PN877
Rule 13(2) supports that view of the matter, in light of that rule it would be strange indeed if despite the absence of authority of the authorisation at the time of service of the letter of demand of log, the Commission were to acquire jurisdiction by reason of subsequent ratification of that service. Now the reference to rule 13 there is now reference to rule 14. But we submit that the evidence of Ms Shirley regarding the resolution, and the subsequent letter of demand of 10 April, falls squarely within that characterisation, that is the letter of demand embodying a log of claims to be complied with within a certain period of time.
PN878
So quite apart from the fact that the union hasn't put it into evidence, which of itself is a significant consideration, even if it was in evidence, the letter of demand, that would provide no basis for a subsequent event, post-finding of dispute, to justify the finding of dispute. Let me put it that way.
PN879
THE COMMISSIONER: Are we confined in our findings to only responding to union letters of demand?
PN880
MR McDONALD: No, no, you are not, and I am not suggesting that. What I am saying is that this evidence of Ms Shirley falls squarely in this category.
PN881
THE COMMISSIONER: Yes. I follow.
PN882
MR McDONALD: So I am putting this to you specifically in relation to the letter of Ms Shirley. One might infer, and indeed there is reference to it in the union's submission. The union seeks to rely upon the evidence of Ms Shirley as evidence of the existence of a dispute.
PN883
THE COMMISSIONER: Yes.
PN884
MR McDONALD: My submission is that you can't, not in these proceedings. It may be - - -
****
PN885
THE COMMISSIONER: You can't subsequently justify an earlier finding.
PN886
MR McDONALD: No.
PN887
THE COMMISSIONER: It is Full Bench authority for that proposition too, isn't it.
PN888
MR McDONALD: Yes, it is since Dean's case.
PN889
THE COMMISSIONER: Yes.
PN890
MR McDONALD: Because prior to Dean's case there was a line of authority based on the observations of Murphy J in Bain v Cadbury Schweppes that the Commission could rely upon subsequent events. And I think there was a decision re SPSF, one of the SPSF decisions, and then Dean's case came along and effectively put an end to that. And it is - well, that is solid authority, it hasn't been challenged.
PN891
THE COMMISSIONER: But didn't put an end to the observations by Murphy J as to the preventative powers of the Commission.
PN892
MR McDONALD: Well, those observations, Commissioner, really must be treated with very considerable caution and that - I was just doing some research on Dean's case.
PN893
THE COMMISSIONER: Yes.
PN894
MR McDONALD: And can I hand up an extract from the Butterworths Industrial Law Service where there is some discussion about Dean's case and Bain, but then subsequent to service of the log. And you will see in the first paragraph there, there is reference to Dean's case, and then it says:
****
PN895
Before the CFMEU case, the Commission held that in making a dispute finding it may take into account events subsequent to the service of the logs.
PN896
There is the SPSF case.
PN897
This was based on Murphy J's observation that industrial dispute may be diminished or ended or enlarged or altered in the course of proceedings in the Commission ...(reads)... conceding some or all of them.
PN898
[2.25pm]
PN899
THE COMMISSIONER: Thank you.
PN900
MR McDONALD: I will return to the issue of the Commission's preventative functions and also I will return to this issue about probability of dispute, once I have spent some time looking at the evidence before you, Commissioner. Can I just, in a similar vein to Dean's case, can I also make reference to Finance Sector Union v Illaton? I am told it is in the bundle, if you will just bear with me, Commissioner.
PN901
THE COMMISSIONER: Yes, of course.
PN902
MR McDONALD: And this report at [1993] HCA 7; 113 ALR 448, and in particular, just on the question of the power of revocation. The relevant passage is at 458, at the bottom of the page:
PN903
The Act operates upon a dispute when it happens, or perhaps when it is found to exist. It continues to operate notwithstanding that ...(reads)... concerning consent awards or certified agreements.
****
PN904
In that context it is clear that the power to vary or revoke a dispute finding conferred by section 101 of the Act is confined to circumstances in which it is subsequently found that there was not in fact a dispute as initially found or as found that the claims which gave rise to that dispute have been abandoned or are no longer seriously maintained. So that for practical purposes, it is as if they never have been made. And that is the passage that I wanted to refer to.
PN905
But that is all consistent with - to the extent that there is a variation of the dispute finding, it is not by way of an expansion. It is by way of a finding that there wasn't in fact any dispute at all. Now can I take you to the transcript of proceedings, Commissioner, and I do this by reference to the submission that there was no evidence of a demand, and to take up the point the Commission has raised, no evidence of a probable industrial dispute about matters pertaining to the relationship between employers and employees.
PN906
Can I put it this way, if I could just ask rhetorically? I will put rhetorically. The Commission is in no position to make a finding of jurisdictional fact about the probability of a dispute about matters pertaining to the relationship between employers and employees unless there is a comprehensible demand for this reason. Unless there is a comprehensible demand, how can the Commission make any assessment of whether or not the matters in issue actually pertain to the requisite relationship between employer and employee?
PN907
The issue between the parties might have something which has got absolutely nothing to do with that relationship. It may, for instance, in substance, the probability of the dispute might be a dispute that the CPSU at the Ballarat site has a fundamental objection to Telstra engaging the services of a labour hire company. Now I will take you to Cox's case in due course, but in my submission would be that if in substance, that is the nature of the dispute, that is not a matter which pertains to the relationship.
PN908
But in order for you to make an assessment of that, whether actual or probable, there has to be a demand. And in this case, there simply isn't one. If one goes to paragraph 6 of the transcript, this is on the first day of hearing, on 27 March. Mr Jones says:
****
PN909
The notification concerns demands by the employer to dramatically alter the employees' hours of work, without consultation or ...(reads)... concerns and providing appropriate compensation in line with community standards.
PN910
Now, that submission is confined solely to the position as between the employees and Dorothy Farmer. At paragraph 10, in the union's submission the dispute, the alleged dispute may extend to Telstra. It is hardly a very strong basis upon which the union commences its claim against Telstra on the basis that it is their actions that have precipitated the dispute. The employees in question who are the subject of the order are at all material times under the supervision and control of Telstra supervisors, and that Telstra has frustrated the attempts of the CPSU and the employer, DFP Recruitment Services, to attempt to settle the dispute. That basis upon which the dispute finding against Telstra is sought in no way articulates any claim pertaining to the relationship between employers and employees. It cannot sustain any dispute finding within section 4 of the Act.
PN911
Then at paragraph 107 of the transcript there was questioning of Mr Jones about whether or not the employees formulated a demand against Dorothy Farmer and he was asked:
PN912
Can you state what those demands were?---He says that the first demand was that there be a union - sorry, a meeting between CPSU and Dorothy Farmer management ...(reads)... for workers for working such non-family friendly hours.
PN913
Now, as between the CPSU and Dorothy Farmer, that evidence pertains - it is not very strong, it doesn't say exactly what people wanted but you don't - there is no challenge to the dispute finding involving Dorothy Farmer. But in general terms those matters relate to - pertain to matters within the employment relationship shift penalty payments and the like.
PN914
Then one goes to paragraph 172, and this is the exchange that you had with Ms Kennedy. This is concerning the position of Telstra as an employer in its own right. You said to Ms Kennedy:
****
PN915
If Telstra can roster its own employees for those times...
PN916
Ms Kennedy says:
PN917
It has no control over Dorothy Farmer employees' hours of work.
PN918
And you said:
PN919
No, but it can roster its own employees for that time in which case Dorothy Farmer's persons wouldn't be called upon?---I don't see what you are getting at.
PN920
And your response was:
PN921
Well, you could completely overcome the need to use Dorothy Farmer by rostering your own employees ...(reads)... these are tricky questions, not insignificant questions.
PN922
Now, there is no evidence of a demand, and there is no evidence which would support a finding of probability of any demand by the CPSU against Telstra that Telstra roster its own employees. You, with respect, have raised a hypothetical with Ms Kennedy but there is no such demand and no suggestion of a demand in these proceedings. And in a sense that is not surprising because presumably that would have had implications with the employees of Dorothy Farmer.
PN923
If a demand was made by the CPSU that Telstra roster its own employees, presumably the effect of that would be that certain Dorothy Farmer employees would become surplus to requirements. There is no hint of any of that in these proceedings, with respect. And could I also ask you to note paragraph 247 of the evidence - which is the evidence of Ms Shirley and this is the matter referred to in CPSUs submissions. Ms Shirley was asked about - asked by my friend Mr Jones about the attitude of the workers at Ballarat to the use of labour hire employees and her evidence was:
****
PN924
There is a concern that, okay, one that we are going to get overtaken by the amount of employees coming in ...(reads)... they are concerned about their welfare.
PN925
Now, that evidence also does not give rise to any finding of a dispute or the probability of a dispute because there is no suggestion in these proceedings of any demand having been made by the CPSU against Telstra that it not utilise the services of a labour hire company; and, indeed, there couldn't be. Any such matter would be outside the Commission's jurisdiction. Cox's case is directly on point. If I could hand up a copy of that. This is reported in [1968] HCA 86; 121 CLR 313; at 317 at the top of the page:
PN926
The argument advanced on behalf of the prosecutors requires us to examine the clause and to form a view about it ...(reads)... such as those contained in (c), (d) and (f).
PN927
And to similar effect on page 318 - sorry, the bottom of 317, 318:
PN928
This, of course, means that there never could be industrial disputes simply as to whether it should or should not be permissible ...(reads)... would not be an industrial dispute as defined.
PN929
Now, in substance, Commissioner, what was the matter that Ms Shirley was giving about at 247? The evidence was precisely going to that issue, the concerns of herself and other employees at the Ballarat site about the use by Telstra of a labour hire company to perform certain work at its site. Now, that is not a matter - no demand formulated which purported to prevent such an outcome, no demand in those terms would give rise to an industrial dispute within the meaning of the Act.
[2.40pm]
****
PN930
What the evidence of the union in this case really boils down to, Commissioner, is an attempt by the CPSU to raise its concerns about the situation at Ballarat, no evidence of any demand at all having been made against Telstra. Why didn't Mr Jones, when Mr Tigchelaar was in the witness box, why didn't he just put to him, "Look, Mr Tigchelaar, it is true, isn't it, that the CPSU has made a demand upon you in relation to these matters? There is a dispute about these things." Or why didn't he put to him, "Look, Mr Tigchelaar, it is quite probable that down the track we are going to have a dispute about these particular issues, aren't we?" He didn't do any of that. There is nothing in the evidence before today and there is nothing after today which in any way goes to the existence of a demand.
PN931
The CPSU just wanted - they wanted Telstra to be here. They thought it might help generally. Well, in a sense, that could be understood, but it is not the stuff that an industrial dispute finding is made of. It is very similar, with respect, it brings into call the observations of the High Court in Re SPSF. It really seems to be an attempt by the union to have the Commission playing some general regulatory role in relation to employment arrangements at Ballarat without there having been any articulation of what is the ambit of the dispute actual or probable.
PN932
This is reported in [1993] HCA 30; 113 ALR 385, and I readily concede this was a case concerned with a written demand, and the court here was looking at the adequacy of a log of claims to invoke the Commission's jurisdiction, but the reasoning is apposite. At 389 at line 35 there are two interrelated matters that serve to indicate that:
PN933
A bare claim for increased wages and allowances as determined by the Commission is not a claim that gives rise to an industrial dispute. The first is that the Commission ...(reads)... Its regulatory powers are activated only in consequence of a dispute and only with respect to the matters in dispute.
PN934
And then in the next paragraph, some six or seven lines down:
****
PN935
Thus, a claim that the Commission should have or should exercise general regulatory power, whether made in terms which predicate an improvement, a reduction or even the maintenance of existing wages and conditions, is not a claim that gives rise to an industrial dispute as defined in section 4(1) of the Act.
PN936
Now, in substance, Commissioner, that is really what has occurred before you. The union has wanted the Commission to have some regulatory role in terms of arrangements at Ballarat, but in circumstances where it has never articulated any demand or any likelihood of what the demand is going to be.
PN937
Mr Jones's final submissions really make the point terribly clear, with respect. Paragraph 278 of the transcript - he says in the third line of paragraph 278:
PN938
In relation to Telstra we say this, that there is a dispute.
PN939
Nothing probable, nothing industrial situation, this is the case that was put. And with respect, Commissioner, if you are going to determine it on any other basis, it would have been appropriate consistent with the High Court's reasoning in Australian Railways Union v the Public Transport Corporation, it would have been appropriate to flag that. The only basis, the case which Telstra met, was there is a dispute and this is how it was articulated:
PN940
The dispute concerns both the use of labour hire employees at the Ballarat site, the rostering arrangements, whether they be in respect of Dorothy Farmer employees or Telstra employees, and to that extent the dispute extends to Telstra and should be so found.
PN941
Well, let's just go through those one at a time. The dispute concerns both the use of labour hire employees at the Ballarat site. Any demand at all? Any evidence of any demand by the CPSU against Telstra that it not use labour hire? No, there couldn't be such a demand, it wouldn't attract the Commission's jurisdiction.
****
PN942
The rostering arrangements. Any evidence of any demand against Telstra that it roster its own employees in lieu of Dorothy Farmer employees? No, and not surprising; it would have involved putting Dorothy Farmer employees out of work. And that is it. That is the basis upon which it was submitted to you that there was an industrial dispute.
PN943
Now, you did raise, Commissioner, the question of joint employment, and can I say something about that. If you were to apply to section 4 of the Act any notion of joint employment, that would involve you departing from High Court authority which goes back 50 years which very clearly stands for the proposition that the reference to the relationship of employers and employees in section 4 is that of common law contract of employment, and authority for that proposition is Cox's case at 317 at point 9 of the page.
PN944
THE COMMISSIONER: I am sorry, 307?
PN945
MR McDONALD: 317, point 9.
PN946
THE COMMISSIONER: Thank you.
PN947
MR McDONALD: The Court said:
PN948
That kind of relationship to which the definition in section 4 of industrial matters -
PN949
and of course at that time it was industrial matters was where you found the pertaining to the relationship -
PN950
refers to the expressions "employer" and "employee" is under another name in substance the relationship called at common law "master" and "servant".
****
PN951
So that is what the Court makes clear there, and it is clear from subsequent authorities such as Re Alcan that the High Court has stated repeatedly over the years - Alcan is an example of this at 105, at the end of the first paragraph on 105:
PN952
The requisite nature of the subject matter of dispute remains precisely the same, namely that it pertained to the employment relationship involving employers as such and employees as such.
PN953
THE COMMISSIONER: Where do you say Shell fits with those?
PN954
MR McDONALD: The comments in Shell, the observations of the Court in Shell, are obiter comments firstly. That is what I say about those observations. There is nothing in, secondly, I would submit that there is nothing in Shell which would support incorporating it into the section 4 definition, the concept of joint employment. I concede that in its terms the obiter observations in Shell support a circumstance that in particular defined circumstances, that is, the existence of a relevant corporate structure as between the employer and the non-employer and the capacity of the non-employer to directly affect outcomes between the employer and its employees, that in those limited circumstances there could be dispute about other matters pertaining to the relationship, but that is the high water mark.
PN955
THE COMMISSIONER: Yes, and then you go to Gate Gourmet to say that that clarifies what Shell - - -
PN956
MR McDONALD: Yes. And - - -
PN957
THE COMMISSIONER: - - - means.
****
PN958
MR McDONALD: Yes, and we would submit, very properly so, that the observations in Shell in no way should be regarded as opening the floodgates. I handed up Alcan, and of course it is somewhat ironic in terms of the reasoning in Shell. All of the - the linchpin for the reasoning in Shell is the fact that there was a change in the definition of industrial dispute in that in the old definition the words were "as to matters pertaining", and that was replaced by "about matters pertaining", and in re Alcan, and this went to the actual ratio of the decision in Alcon as distinct from being obiter remarks, fundamental to the reasoning in Alcan was that the High Court concluded, and I am trying to find the page.
PN959
The High Court concluded that the change from "as to", being replaced by "about matters" basically involved no change at all. The relevant is at 105 in the first paragraph, halfway through the first paragraph:
PN960
And although there are some minor differences between that definition and the relevant definitions previously found in the Conciliation and Arbitration Act, ...(reads)... precisely the same.
PN961
So, it is difficult to reconcile that reasoning in Alcan which went to the ratio with the obiter remarks in Shell, and this, which respect, is the strength of the reasoning in Gate Gourmet that the analysis of the full bench in that decision was very much involved, going back and looking at the old cases such as re Alley, going back to the foundational jurisdictional considerations. And once you go beyond the very strict - the criteria as applied in Gate Gourmet it is really very difficult, it is impossible to reconcile such an outcome with this very long line of authority which requires the requisite relationship to be with employers as such and employees as such.
PN962
THE COMMISSIONER: But does Gate Gourmet in one sense by seeking to give some guidance as to what indicia should be present recognise that a demand might be made upon a non-employer?
****
PN963
MR McDONALD: I will concede that. The other passage that I wanted to refer to in Alcan was at 106, and this is where the High Court in the middle of the page was refusing the reconsideration of the decision in Portus, and the second reason that the Court gave for refusing to reconsider the correctness in Portus was in the middle of that second paragraph; they say:
PN964
The second is that Parliament re-enacted in section 41 of the Act words that are almost identical with those considered in Portus. There is abundant authority ...(reads)... history of the Act.
PN965
So, not to put too fine a point on it, it is difficult to reconcile that reasoning in Alcan with placing a great deal of emphasis on the use of the word "about", which underpins the obiter remarks in Shell. You can say in relation to joint employment concept, I note that there was a full bench decision that you referred to, referred Ms Kennedy to, and the submission - - -
PN966
THE COMMISSIONER: Well, there is a major paper going for the consideration of the International Labour Organisation in June that - on a scope of the employment relationship.
PN967
MR McDONALD: Yes. Well, in a sense this isn't a new issue.
PN968
THE COMMISSIONER: No.
PN969
MR McDONALD: It was considered by the full Court in Conrad v The State of Victoria, and in that case the full Court upheld an argument that because the relevant provisions of the termination component of the legislation are underpinned by the External Affairs power and incorporate by - expressly incorporate the relevant international conventions, and those conventions apply in non-common law jurisdictions, that the notion of employment within the termination division of the Act shouldn't be confined to common law contract of employment.
****
PN970
But that doesn't take one anywhere when it comes to considering Section - - -
PN971
THE COMMISSIONER: Whether or not an industrial dispute - - -
PN972
MR McDONALD: Yes, because it is underpinned by section 51(35) of the Act. So, the reasoning - the considerations of the joint employment concept, that had no bearing, in my submission, on the relevant employment relationship in section 4 of the Act.
PN973
THE COMMISSIONER: It may also be said that the American experience with the National Labour Relations Board also hinges upon different constitutional considerations than that of the common law understanding of the contract of employment.
PN974
MR McDONALD: Yes.
PN975
THE COMMISSIONER: I suppose it isn't of - I don't think it is open to me to adjourn to Geneva and listen to the debate with all of the parties present, is it?
[2.57pm]
PN976
MR McDONALD: It sounds like an excellent idea. But can I move on then to the next issue: well, consideration of a dispute finding against Telstra as a non-employer. Can I just say in relation to that, going back to the matter you raised at the outset in terms of the probability of a dispute, in terms of probability of a dispute against Telstra as an employer, what is very significant in that respect, Commissioner, is that right from the outset the terms of the award which have been sought in settlement of any dispute finding have never sought to impose any obligations at all upon Telstra.
****
PN977
Now, I am purely speculating here but, say for argument's sake, if you had had in mind at the time of the dispute finding the notion of a probability of a dispute as between the CPSU and Telstra, any such consideration should have been very quickly laid to rest by the fact that the CPSU has never at any stage agitated for any relief against Telstra. And that is, with respect, the best measure of whether or not there was an actual or probable dispute as between the parties.
PN978
But if I can go to the issue of the claims against Telstra if they were to be characterised as claims against a non-employer. My submission is, with respect, that the Full Bench decision in Gate Gourmet is directly on point, that it is a Full Bench decision which, although the decision in its terms recognises the need to consider each case in terms of the facts of the particular case, the reasoning of the court at paragraph 44 and 45 insofar as the bench identifies the application of the criteria in Shell to a consideration of a dispute finding against a non-employer, that is couched in mandatory terms. That is, at paragraph 44:
PN979
Having regard to the dicta in Shell, we consider we must examine the question of whether it is appropriate to find an industrial dispute ...(reads)... whether the tests set out in paragraph 29 of this decision are satisfied.
PN980
That is a typographical error; it is paragraph 36 is where the test is set out. That is the dual test, the body against whom the finding is sought is in a position because of the relevant corporate structure and because 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 employee. And similarly in paragraph 45:
PN981
In respect of the companies and the claim for redundancy entitlements at GGA ...(reads)... that they can directly -
PN982
that should be "affect" -
****
PN983
the relationship with employers and employees at GGA.
PN984
Now, that is a Full Bench decision which we submit clearly articulates the dual criteria in terms which requires both of them to be satisfied and it is clear that in this case whatever view you were to take about the second limb, that is the capacity to directly affect the relationship, there is absolutely no evidence and no suggestion of any requisite corporate relationship between Telstra and Dorothy Farmer of the type which would satisfy the test in Gate Gourmet.
PN985
THE COMMISSIONER: Could I test that proposition by asking Dorothy Farmer if they consent to the making of an award that was adjourned the other day operative from tomorrow?
PN986
MR McDONALD: Commissioner, with respect, you can put anything that you wish to Dorothy Farmer. What you do have, and this is why I recalled Mr Phipps, is you have made inquiries about correspondence between Telstra and AIG, and the uncontroverted evidence of the CEO of Dorothy Farmer is: well, notwithstanding that correspondence, we intend to consent to the award that has been agreed upon at the hearing next week. That is his evidence. So what - - -
PN987
THE COMMISSIONER: Yes, but the issue was operative date. There was going to be an argument about operative date.
PN988
MR McDONALD: Well, no, with respect, I am just going on the evidence of Mr Phipps.
PN989
THE COMMISSIONER: Yes. Well, it is contained in the letter from Telstra, the employer's view of operative date.
****
PN990
MR McDONALD: The employer has expressed a view about operative date. Mr Phipps has given evidence that he will consent to an award in the terms of that which is annexed to his statement. That award contains an operative date of 30 October, as I understand it, and - well, the evidence is - it is not a matter of what I understand. The evidence of Mr Phipps is, that is an agreed position between Dorothy Farmer and the CPSU. Now, I don't understand it to be - - -
PN991
THE COMMISSIONER: No, it is not.
PN992
MR McDONALD: Well, that is his evidence.
PN993
THE COMMISSIONER: No, his evidence was they are going to consent to the award. The question of operative date is contentious.
PN994
MR McDONALD: Is that his evidence?
PN995
THE COMMISSIONER: Well - - -
PN996
MR McDONALD: I can only go - - -
PN997
THE COMMISSIONER: Yes.
PN998
MR McDONALD: With respect, Commissioner, I can only go on the evidence in this matter.
PN999
THE COMMISSIONER: Well, his evidence was that he was going to consent to the award. The letter from Telstra talks about a roping-in award, ie 1 October.
****
PN1000
MR McDONALD: But the award provides for an operative date of 1 October. The award which is exhibited to Mr Phipps' statement - do you have that?
PN1001
THE COMMISSIONER: Yes.
PN1002
MR McDONALD: Exhibit GP1.
PN1003
THE COMMISSIONER: Yes, that is the employer's proposition.
PN1004
MR McDONALD: Well, that is the evidence, with respect.
PN1005
THE COMMISSIONER: Yes.
PN1006
MR McDONALD: And that has not been challenged.
PN1007
THE COMMISSIONER: Well, as a Member of the Commission that is presiding over the case, I can tell you there is no agreement as to operative date.
PN1008
MR McDONALD: Well, Commissioner, I can only proceed, and we can only proceed on the evidence and it is - - -
PN1009
THE COMMISSIONER: Well, that is what I am telling you.
PN1010
MR McDONALD: It is unchallenged. If Mr Jones had a different position to that, then he should have put it to the witness.
****
PN1011
THE COMMISSIONER: No, but I am telling you. I am telling you that is the controversy between the parties, the operative date. And that is what enlivens - that is why I asked if I - I said it tomorrow and I put Dorothy Farmer in a position where their labour costs increased as of tomorrow, quite apart from other employers in the industry, I wonder what view Telstra would take of that.
PN1012
MR McDONALD: Well, the labour costs of Dorothy Farmer are the labour costs of Dorothy Farmer. The letter from Telstra makes quite clear - - -
PN1013
THE COMMISSIONER: Well, that may have consequences.
PN1014
MR McDONALD: I have got the letter - - -
PN1015
THE COMMISSIONER: Yes, T2, TELSTRA2. That may have consequences.
PN1016
MR McDONALD: It doesn't - well, with respect, it doesn't have any. In my submission, it has absolutely no consequences at all.
PN1017
THE COMMISSIONER: No consequences?
PN1018
MR McDONALD: No, not - - -
PN1019
THE COMMISSIONER: If a - - -
PN1020
MR McDONALD: It has got no consequences in terms of the test in Shell. If you look at the third - all the consequences of this run very strongly Telstra's way.
PN1021
THE COMMISSIONER: Yes.
****
PN1022
MR McDONALD: If you look at the third paragraph of the letter T2:
PN1023
This position has taken Telstra by surprise and, in short, Telstra is not satisfied the approach being adopted is the most suitable ...(reads)... without any consultation with Telstra, that is extremely presumptuous.
PN1024
Well, reading that, that is clear that 1 October 2003 is a date when there can be a review of the pricing arrangements as between DFP and Telstra.
PN1025
THE COMMISSIONER: Of what possible interest is it of Telstra's proceedings affecting Dorothy Farmer?
PN1026
MR McDONALD: The interest is that if Telstra was to remain silent in circumstances where the DFP and the CPSU entered into an award which imposed higher labour costs operative from 1 October 2003, the date which corresponds precisely with the pricing review, that such silence may be construed by Dorothy Farmer as a consent on the part of Telstra to immediately absorb any increases which were imposed on Dorothy Farmer. If ever - with respect, that is fairly - with respect, it is fairly self-evident, I would have thought.
PN1027
THE COMMISSIONER: And so that is why Telstra require a detailed analysis as to why the agencies are now responding to this matter in the way it is proposed. What has the analysis got to do with the analysis of the award or the labour costs associated with the award?
PN1028
MR McDONALD: With respect, if the questions that you are asking me are directed to the second limb of the test in Shell - - -
PN1029
THE COMMISSIONER: Yes.
****
PN1030
MR McDONALD: That is: does Telstra have the capacity to directly affect the relationship between Dorothy Farmer and its employees? The fact that Telstra seeks certain information from Dorothy Farmer about cost consequences of an award that it might enter into with CPSU has got nothing to do with the question of whether it has got the power to directly affect the relationship between Dorothy Farmer and its employees. It as - Telstra as a substantial user of the services of Dorothy Farmer - well, it is not in dispute, there is hundreds of employees at Ballarat alone. We haven't got before the Commission evidence as to what money is involved in terms of the payments from Telstra to Dorothy Farmer but it is obviously a very substantial amount of money.
PN1031
Now, if Dorothy Farmer is proposing by consent to enter into an arrangement with the CPSU which has got cost consequences, why wouldn't, with respect, as just a matter of ordinary commercial interest, why wouldn't that be a matter of interest to them?
PN1032
THE COMMISSIONER: Well, where is the commercial interest? It goes directly to labour costs, doesn't it? Either their own employees or Dorothy Farmer's employees; it doesn't go to anything else. It means that either Telstra - Telstra would have to take a decision whether to replace Dorothy Farmer employees with its own or hire some other labour hire company.
PN1033
MR McDONALD: All of the labour hire agencies, as I understand it, who are proposed to be respondent to the award are - not just Dorothy Farmer - - -
PN1034
THE COMMISSIONER: No.
PN1035
MR McDONALD: - - - those who provide the services to Telstra. But, look, Mr Jones if he had wanted to ask questions about this, he could have; he didn't.
PN1036
THE COMMISSIONER: No.
****
PN1037
MR McDONALD: I put the document in through Mr Phipps. If Mr Jones had wanted to take the matter up with Mr Phipps, he could have. If he had wanted to take it up with someone else, he could have.
PN1038
THE COMMISSIONER: Yes.
PN1039
MR McDONALD: I appreciate that the Commission has a role in terms of satisfying itself of jurisdictional facts but, with respect, you are up there and Mr Jones is down here, and it is Mr Jones' job to put these matters in issue. And if he hasn't put them in issue, well, that is his problem. With respect, the Commission has to operate on the basis of the evidence before it, not go into the realms of speculation.
PN1040
THE COMMISSIONER: Well, I am not going into speculation by asking why a proceeding before me was abandoned and then to find out that it is abandoned because Telstra have called into question the terms of the agreement and want a detailed analysis of it.
PN1041
MR McDONALD: With respect, if we just go back a step from that proposition.
PN1042
THE COMMISSIONER: Do you think I took that too far?
PN1043
MR McDONALD: I think you, with respect, over-stepped the appropriate bounds there. The proceedings - we haven't got any evidence from Mr Hargraves. Perhaps, Commissioner, you are at an advantage that you know matters about that I don't.
PN1044
THE COMMISSIONER: Well, that is one of the advantages of the panel system.
PN1045
MR McDONALD: Yes.
****
PN1046
THE COMMISSIONER: And one of the reasons why the High Court has respected the panel system and the knowledge of individual members can bring to bear on the resolution of disputes.
PN1047
MR McDONALD: But the proceedings - you said the proceedings had been abandoned. They haven't been abandoned - - -
PN1048
THE COMMISSIONER: No, they had - I am sorry, they were abandoned on that day.
PN1049
MR McDONALD: No, well - - -
PN1050
THE COMMISSIONER: It was adjourned on that day.
PN1051
MR McDONALD: Well, they have been adjourned to next week. So Mr Phipps has given evidence - - -
PN1052
THE COMMISSIONER: Yes.
PN1053
MR McDONALD: - - - that notwithstanding the letter, that he is going to consent - he is going to consent to the award.
PN1054
THE COMMISSIONER: Adjourned at the - over the submission of the CPSU, I granted the adjournment made by the AIG. I didn't know why at the time. I do know now.
****
PN1055
MR McDONALD: Well, in relation to the letter of 30 April, I would simply make this submission. Mr Phipps' evidence is that he proposes - or the company proposes to consent to an award next week. Now, that evidence, Commissioner, is not consistent with a - that evidence is not consistent with a finding of fact on your part that Telstra has the capacity to directly affect the relationship between Dorothy Farmer and its employees. Whatever happens next week, Commissioner, with respect, as in - you have raised the issue of the operative date and to whether or not Dorothy Farmer would agree to a date earlier than 30 October - or 1 October 2003. Whatever Dorothy Farmer does in relation to that matter is a matter for Dorothy Farmer.
PN1056
What is tolerably clear from the letter of 30 April is that there is a contract in existence between Telstra and Dorothy Farmer, which has got a rent review - a pricing review date of 1 October 2003. Now, if Dorothy Farmer are going to agree to an earlier date than 1 October 2003 next week, notwithstanding the fact the contract doesn't have a review date until 1 October, that is a matter for Dorothy Farmer.
PN1057
In my respectful submission, there would be no basis for you to make a finding that because the proceedings before you last week were adjourned in circumstances where there is evidence of correspondence between Telstra and the AIG representative who was appearing before, you that you go from that step to a finding that Telstra has the capacity to directly affect the relationship between Dorothy Farmer and its employees. That, with respect, would be a huge quantum leap over and above that which is contemplated in the reasoning of the High Court.
PN1058
The reason, with respect, why the High Court in Shell speaks in terms of both limbs of the test, relevant corporate structure and the capacity to directly affect the relationship is that where it refers to directly affecting the relationship it is because of the relevant corporate structure that it can do so. We make the submission, Commissioner, that if you were to make a finding based on - make a finding of an industrial dispute against the company in circumstances where there is no evidence of any relevant corporate structure, well, you are not - we would submit you are not finding - you are not following a full bench authority which is binding and you would be falling into error in those circumstances.
****
PN1059
A full bench of the Commission in CPSU v Pacific Access has dealt - I don't hand that up, Commissioner, because - I am not going to hand that up because we submit that where the decision is binding there would be no cause or reason for you not to follow it and no proper basis upon which the decision can be distinguished.
PN1060
THE COMMISSIONER: It normally falls to members at first instance to tease out what different issues are for subsequent examination by full benches.
PN1061
MR McDONALD: Well, in this case, fortunately - - -
PN1062
THE COMMISSIONER: If they have done it and they have guided me, then I follow.
PN1063
MR McDONALD: Yes. Well, it is one thing for there to be guidance, there is another for what we would say is more in the nature of a mandatory direction. This is what you must do in order to - they say you must do this to follow the Shell case and there doesn't really seem to be much room for movement on the issue of, certainly, the first limb of the test, is there a relevant corporate structure? Thank you, Commissioner.
PN1064
THE COMMISSIONER: Thanks, Mr McDonald. Mr O'Grady, do you wish to - - -
PN1065
MR O'GRADY: I expect I will be responding to what Mr Jones has to say because it is his application for the interim award.
PN1066
THE COMMISSIONER: Thank you. Yes, Mr Jones.
****
PN1067
MR JONES: If the Commission pleases, I intend to take you through in some detail the evidence that was before the Commission this morning in relation to the dispute before Telstra. Before I do that, I make this submission, that Telstra in its outline of submissions, in a sense, made two applications. The first was a revocation of the dispute and the second being a variation of the dispute insofar as the dispute extended to itself.
PN1068
I have heard nothing from Mr McDonald today and nor has the Commission received anything by way of evidence or submission in written form which could lead the Commission to conclude that a dispute did not exist at least to the extent of Dorothy Farmer, and we note that nothing has been put by Dorothy Farmer in that respect. So we simply submit this, that that part of the application should be dismissed out of hand.
PN1069
MR McDONALD: Sorry, I don't understand my friend's submission. We haven't any application in relation to the Dorothy Farmer disputed finding. I made it clear on the last occasion we are simply seeking you to amend the dispute insofar as it relates to Telstra. I think I said get your red pen out.
PN1070
MR JONES: I thank Mr McDonald for that. The confusion arises from the first sentence of paragraph 4.
PN1071
MR McDONALD: Well, I am sorry if there was any confusion but that is the position.
PN1072
****
PN1073
MR JONES: Can I ask the Commission to turn to the third page of that document. Commissioner, this is an attempt to summarise in tabulated form the material that is before the Commission in the written witness statements. What I will also attempt to do is add to that by way of oral submissions based on the material that has come before the Commission by way of examination and cross-examination. The first thing to be said is this, that it is clear from the evidence that the only service by provided by Dorothy Farmer is the provision of labour hire.
PN1074
They do not provide or operate any separate service at the Ballarat site. They don't pay rent. They don't lease any computers or software, paper or any operating - operation or training, and all of those aspects are provided for by Telstra. So all we are talking about is the provision of labour. [3.22pm]
PN1075
The work performed at the Ballarat Call Centre includes the provision of customer support and service work for Telstra, and those services include the broad band service, the single bill establishment, the Foxtel bundling, the correspondence in the Big Pond support and ISD and provisioning. This work is performed interchangeably by both DFP and Telstra employees. This much is clear from the witness statement of Mr Tigchelaar, R4. The evidence also shows that the work is performed by both Telstra and DFP employees. Of the 300 employees at the Ballarat site, approximately 230 are Dorothy Farmer employees.
PN1076
The work that is performed at the site is performed interchangeably by both DFP employees and Telstra employees, and this much is clear from the evidence at paragraph 6 of Mr Tigchelaar's statement. In relation to the aspects which go to the control that Telstra exercises over the performance of work and the employees of Dorothy Farmer, the evidence demonstrates the following; that it is a Telstra manager, indeed it is Mr Tigchelaar, who has the overall responsibility for the management and operations of the Ballarat Call Centre.
****
PN1077
This is clear from paragraph 2 of Mr Tigchelaar's statement. Telstra managers determine what work will be performed by the Dorothy Farmer employees, if indeed any work is performed by them. That includes the number of employees, the hours that they work, and the hours during which they will perform work. In cross-examination of Mr Tigchelaar it became clear that that control actually extends to how the work is performed on a daily and a minute basis. You might recall that I asked Mr Tigchelaar, I put a few examples to Mr Tigchelaar about the inability of Dorothy Farmer supervisors to have any control over the way the work was performed.
PN1078
They cannot, for example, give directions to their employees about performance of the work which are inconsistent with the directions given by Telstra. They cannot make up their own way of greeting customers. They cannot disband the Telstra policy of ensuring that everybody who answers a phone says, "Welcome to Telstra. How can I help you?"; they are obliged to follow the Telstra scripts in every respect. Nor can Dorothy Farmer roster its staff in a way that is inconsistent with a direction that is made by Telstra in terms of the allocation of hours and the allocation of work. That is clear from the evidence we heard this morning.
PN1079
It was also clear, and I draw the Commission's attention to the attachment of Ms Celia Fischer's witness statement, attachment 1 to that witness statement, which we took Ms Fischer to at some length. At paragraph 2 of that witness statement, and this was confirmed by Ms Fischer in cross-examination, we see that it is quite clear that the employees' contract of employment is defined by the assignment to the client, and contract of employment is defined by their placement in the Telstra enterprise.
PN1080
That becomes even more relevant when we note the evidence of Mr Tigchelaar at paragraph 16 of his witness statement, where he confirmed in cross-examination:
PN1081
Telstra reserves to itself the right to terminate the assignment of any employee on the grounds of performance or poor conduct.
****
PN1082
So, clearly that most ultimate decision, the right to hire or fire an employee, terminate their contract of employment, control over that resides ultimately with Telstra, not exclusively, we don't put the submission that way, but the evidence clearly shows that Telstra has, reserves to itself, the right to terminate the assignment which we know from the attachment to the witness statement of Ms Fischer, the termination of the assignment means the termination of the contract of employment.
PN1083
Nothing could be more clear than the very clear statement in the purported contract of employment at paragraph 2, they are not a permanent employee, and each client assignment I accept stands alone as a separate contract. Telstra has the power to fire these employees. It is quite clear from the evidence at paragraph 16 that Telstra trains the Dorothy Farmer employees and through that training exercises the control over how they will perform the work, and clearly Dorothy Farmer is not engaged in the lion's share of the training that is actually performed by the Telstra employees.
PN1084
At paragraph 10 of Mr Tigchelaar's statement, again confirmed in cross-examination, Telstra tells Dorothy Farmer which employees they wish to perform which functions, and Telstra has the control, it has the ability to determine which employees will perform which functions within their Ballarat Call Centre. The determination of the hours worked. Clearly, we can see from the evidence of Mr Tigchelaar that the sole cause of the proposed change in rosters, the subject matter of this dispute, was the decision of Telstra to change the balance of employees performing customer inquiry work and single bill work during the daytime.
PN1085
Telstra made that decision. It was the initiative of Telstra which precipitated the dispute. It is also clear from the evidence of both Mr Schneefuss at paragraph 2 and Ms Fischer at paragraph 20 that these decisions were communicated by Telstra, communicated by Telstra managers to the Dorothy Farmer employees. Telstra has made a decision, and it is communicating the decision to the Telstra - the impact of that decision to the Dorothy Farmer employees. At paragraph 21 we see that the Telstra managers approved the rosters prepared by Dorothy Farmer.
****
PN1086
That was confirmed by Ms Fischer in cross-examination. The evidence at paragraph 21 clearly shows that Telstra managers approve the rosters prepared by Dorothy Farmer, but it goes further than that. Not only do they approve the roster; they have to approve every single time sheet, they have to sign off on every single time sheet that is submitted by a Dorothy Farmer employee. That is clear from both the evidence of Ms Fischer and Mr Tigchelaar in the purported contract of employment itself.
PN1087
In our submission, Commissioner, the evidence clearly shows that Telstra has an over-arching control over the industrial relationship, and quite clearly its decisions have a determinative impact on the behaviour of Dorothy Farmer in respect of its employees. You see at paragraph 11 of Mr Tigchelaar's statement and again at the attachment to Ms Fischer's statement that there is a direct contractual relationship between the base rate of pay and the payment made by Telstra to Dorothy Farmer, a direct contractual relationship. That much is clear from - - -
PN1088
THE COMMISSIONER: Where do you say that arises?
PN1089
MR JONES: I take the Commission to clause 4(a) of CF1.
PN1090
THE COMMISSIONER: Of which? CPSU1?
PN1091
MR JONES: The attachment 1, the first annexure to the witness statement of Ms Celia Fischer.
PN1092
THE COMMISSIONER: Yes. Yes.
****
PN1093
MR JONES: We see at paragraph 4(a) the rates of pay vary according to the contractual arrangements with clients. So, we see there is a clear contractual relationship, a clear contractual relationship between the payments made by Telstra and the wage rates of Dorothy Farmer employees. The power that Telstra exerts over the industrial relationship extends into other areas. It extends into their capacity to be involved in their union, and this much is clear from the exhibit tendered at CPSU4, which was subject to some discussion between ourselves, and submission by ourselves at the last hearing of the matter.
PN1094
The Commission will recall that CPSU4 is a copy of an electronic mail sent by Mr Tigchelaar to both the employees of Telstra, but also the employees of Dorothy Farmer. What Mr Tigchelaar takes upon himself to do is to direct those employees of Dorothy Farmer that they are not entitled to meet with the representatives of the CPSU on Telstra premises. We know from the evidence of Mr Jones, which is - Mr Hayden Jones, that is - which was exhibited at CPSU1, subject of examination, it wasn't controverted with this, but Telstra's actions in refusing both the meeting - the attendance of CPSU on the premises and the ability of the CPSU to meet with Dorothy Farmer management on the premises has prevented the settlement of the dispute.
PN1095
They forbade the CPSU to enter the premises to have a meeting with Dorothy Farmer. So, we can see that the web of control extends through the determination of work, the determination of the rates of pay, and the determination of the industrial relationship between Dorothy Farmer and its employees. And the letter that has been exhibited as Telstra2 makes this quite clear. The inference that the Commission is entitled to draw from Telstra2 is this; that in response to a letter from Telstra to the representatives of Dorothy Farmer amongst others, to those representatives sought an ajournment of the hearing before the Commission where the purpose of that hearing before the Commission was to settle the dispute in part between the CPSU and Dorothy Farmer and others about matters pertaining to - about wages and conditions.
PN1096
THE COMMISSIONER: That is not the evidence of Mr Phipps. Mr Phipps said he gave no such instructions.
****
PN1097
MR JONES: No, that is clear, that is clear. But what I - that is not the point that I am making here. The point that I am making here is that as a result of this letter the settlement of the dispute was frustrated. That is a matter of historical record of fact. Were it not for this letter there would be a consent award; subject to any determination the Commission may make on the matter there would have been a consent award between Dorothy Farmer and the CPSU and others. Telstra's control extends over who works, how they work, where they work, how much they get paid, and the relationship between the employer and the CPSU. That is the inference the Commission to draw from Telstra2.
PN1098
The CPSU has also - the evidence of Ms Shirley, and again this wasn't controverted, it wasn't cross-examined, the evidence of Ms Shirley at paragraph 4 shows that CPSU members have discussed the aspect of the Ballarat dispute, including the rostering of hours and payment of penalties and the use of employees who do not receive penalty payments and express their concerned. That evidence is uncontroverted. And in response to these concerns they have issued the bans upon Telstra in respect of the performance of this work.
PN1099
I do have a copy of the letter of demand that was issued in response to that resolution of the Telstra - - -
PN1100
MR McDONALD: Well, I object to the tender. It should have been tendered before now. This is a dispute-finding proceeding. You don't tender these things in final submissions. It should have been in earlier.
PN1101
MR JONES: Commissioner, my understanding from the submissions of Mr McDonald is he puts into question the existence of the letter. That is determinative of the matter. That issue could be put to rest by tendering of the letter.
PN1102
THE COMMISSIONER: Who is it addressed to?
****
PN1103
MR JONES: The Chief Executive Officer of Telstra.
PN1104
MR McDONALD: I didn't put into issue the existence of the letter at all. I made submissions on the basis, and the transcript will show this, that you could assume for the purposes of my submission that the letter was sent in accordance with the terms of the resolution, but I did make the submission that it was very surprising that it wasn't in evidence. The fact of the matter is, the evidence is closed, we are now into final submissions. I have put my submissions and Mr Jones, who is an experienced operator, shouldn't be allowed the indulgence of putting into evidence factual matters at this stage of the proceedings.
PN1105
THE COMMISSIONER: I understand your concern, but you indicated to me earlier that a dispute is either in existence or it is not. Does it matter whether or not there is some issue about the time at which the material is put?
PN1106
MR McDONALD: Yes. It is completely irrelevant. That is the other basis upon which one would object to the evidence; it is irrelevant. How does Mr Jones meet my submissions based on Dean's case and .....
PN1107
THE COMMISSIONER: I see. All right.
PN1108
MR McDONALD: That is probably a more fundamental objection. How does he purport to rely on post-dispute-finding conduct as being relevant to the existence or otherwise of a dispute-finding that you made on 27 March?
PN1109
THE COMMISSIONER: Thank you. Yes, Mr Jones.
PN1110
MR JONES: I can meet that directly, Commissioner, and I am in your hands as to whether the letter is tendered or not. The fact that the demand was issued is in evidence. I understand from Mr McDonald that that is not put in question. The Commission can take note of that and assume that - rely on the fact that a letter of demand has been served upon Telstra.
****
PN1111
THE COMMISSIONER: Yes.
PN1112
MR McDONALD: But that is not my objection, with respect, not my objection - - -
PN1113
THE COMMISSIONER: Well, I am not receiving it.
PN1114
MR McDONALD: Right. Very well. Okay, fine. If he is not pushing I will sit down.
PN1115
THE COMMISSIONER: If it is accepted between the parties that a letter of demand has been served upon Telstra, then I don't need to receive the letter of demand. I don't know where that leaves me. I don't know what is in it, but I don't know when it was sent.
PN1116
MR JONES: Mr McDonald advanced a line of argument to the Commission which dealt with the authority in Dean's case and other similar authorities, and indeed, he relied on the statement of the full bench in Gate Gourmet to support a contention that it is not open for the Commission to make a finding of a dispute in a situation where a demand has not been communicated by the union, or in the alternative, where the demand has been communicated by the union after the finding of dispute. And I meet that objection head on. This is not a case where the dispute was initiated by demand of the union.
PN1117
This is a case where the dispute is initiated out of the demands and the actions of the employer. So, if the Commission is looking for the initiating demand, look to the behaviour and the actions of Dorothy Farmer and Telstra, because it is their actions which have precipitated the dispute. It is the actions of Dorothy Farmer and Telstra which have said, together we are changing the rostering in the hours of work and we are going to be requiring you to work rotating shifts and weekends without additional pay. That was the demand. It was the demand of jointly Dorothy Farmer and Telstra, of the Dorothy Farmer employees.
****
PN1118
So, we don't need to look to whether there was a post-dated demand sent by the CPSU, we don't need to look to communication by the CPSU. The demand has been made by the employer. This is not one of those circumstances where we are dealing with paper disputes. We are dealing with real, live disputes, disputes that have involved industrial action by the employees affected by the demands. So, we don't need to address Mr McDonald's submission that there has been no communication of a formal demand by Telstra, although we can.
PN1119
We don't need to meet that, because this is a circumstance where the dispute arises out of the behaviour and the demands of the employers upon the employees that work performed at the Ballarat site will not be performed under conditions which allow the payment of shift penalties, which do not allow the payment of shift penalties for work outside the ordinary hours. That was the demand of the employer, and that is the demand that the employees resist and the union on their behalf resists. So, we do not need to address the concerns raised by Mr McDonald.
PN1120
We do not need to address the issues raised in Dean's case, although we can, although we can, because what we see here is a continuing chain of events. This leads me to the second or alternate submission, Commissioner; the continuing chain of events clearly shows that Telstra and Dorothy Farmer combined to bring about the change of events, demands upon the employees, which led to a response - which led to a response by the Dorothy Farmer employees on the one hand and the Telstra employees on the other.
PN1121
Industrial disputes aren't always created by the neat issuance of demands on a piece of paper and the rejections. The vast majority of industrial disputes don't occur in that way. What we are talking about is real live disputes and a continuing change.
PN1122
THE COMMISSIONER: Do I need this dispute-finding at all? Why - I have got a dispute-finding with Telstra. That covers matters such as hours of work, or you have got a dispute-finding with Telstra, rephrase that, underpinning a dispute-finding that gives rise to the award, for one thing. You have got a dispute-finding with Dorothy Farmer that will give rise maybe to another award. Why do I need - and the subject matter would be no doubt covered by both of those underpinning disputes. Why do I need to maintain this finding?
****
PN1123
Why can't I just deal with the matter under existing - to the extent there are matters, and it is Dorothy Farmer's evidence that this wouldn't be an issue if the proposed award that was to be made was made. Why I couldn't I just deal with that one?
PN1124
MR JONES: The Commission has gone to the nub of the issues raised in paragraph 2 about submissions in reply to the Telstra - written submissions for variation.
PN1125
THE COMMISSIONER: Yes.
PN1126
MR JONES: Gone to the nub of the issue, Commissioner. The determination and the trauma of the relief sought does not swing on, does not swing on in our submission, the Commission finding a dispute between the CPSU and Telstra in respect of Dorothy Farmer employees, in respect of Dorothy Farmer employees, although it is open to the Commission to find such a dispute. It is open to you to find such a dispute on the facts before the Commission, but quite clearly we have that most common of disputes between a union and a number of employees concerning a similar subject matter. Quite clearly we have such a dispute before you, Commissioner, quite clearly.
PN1127
THE COMMISSIONER: See, apart from an exciting exercise for an appellant bench if I were to agree with you and - these arising issues, I mean, they are going to trouble us for a lot longer now.
PN1128
MR JONES: Yes.
PN1129
THE COMMISSIONER: Where is the need for me to make a determination and persist with the finding when if I made the award against Dorothy Farmer, the one that Mr Phipps says he is going to concede to, or consent to as of 1 October, apart from the problem that might be caused with the contract with Telstra, where does that take it? I mean, if I made it now I would create enormous problems for this business, and the Commission is not naive when it comes to contractors and clients.
****
PN1130
MR JONES: With respect, Commissioner, there is no evidence before the Commission on that matter.
PN1131
THE COMMISSIONER: Pardon?
PN1132
MR JONES: There is no evidence before the Commission on that matter, with the greatest of respect.
PN1133
THE COMMISSIONER: On what matter?
PN1134
MR JONES: We will come to that in time.
PN1135
THE COMMISSIONER: On what matter?
PN1136
MR JONES: On the issue of cost.
PN1137
THE COMMISSIONER: No, no.
PN1138
MR JONES: Commissioner - - -
PN1139
THE COMMISSIONER: Well, there is, isn't there; it is fundamental to your submission. You say that they, Telstra exercise absolute control because of their contractual arrangements, and you say that would lead me to find the prerequisite control amongst other matters that you have gone to.
PN1140
MR JONES: Yes.
****
PN1141
THE COMMISSIONER: It must follow, mustn't it, that unless Dorothy Farmer has the beneficial windfall profits every time one of their employees walks into Telstra establishments that the margins are going to be fine.
PN1142
MR JONES: Commissioner, that is what we don't want. And in our submission that information was able to be brought and it wasn't, and perhaps some inferences can be drawn from that. I am getting ahead of myself.
PN1143
THE COMMISSIONER: Yes, very well. I don't draw any inferences, but - it is just that I mean, an exciting number of nice points between parties, what seems to be a very simple matter and one that has gone on in the community for a very long period of time, and one unfortunately which is going to become more complex.
PN1144
MR JONES: Commissioner, can I address the issue and respond to your comments in the most efficient way possible.
PN1145
THE COMMISSIONER: Yes.
PN1146
MR JONES: And that is to say this; we rely upon our submissions in respect of the capacity of the Commission to find the dispute between Telstra and - between CPSU and Telstra in respect of Dorothy Farmer employees. We rely on the submissions in part 4 of our written submissions which are paragraphs 13 through to 23 inclusive. We make this submission and it is - that it is not necessary for the Commission to make a finding as such because the dispute already exists between the CPSU and both Dorothy Farmer and Telstra in respect of the hours of work that are performed and the payments and the rewards granted for the performance of those hours of work at the Ballarat site.
PN1147
THE COMMISSIONER: And there is a statutory injunction upon the Commission in the exercise of its discretion to have regard for workers with family responsibilities.
****
PN1148
MR JONES: Yes, Commissioner.
PN1149
MR McDONALD: Well, to understand Mr Jones to be consenting to a variation of the dispute-finding, it seems almost there, Commissioner. Perhaps it might put us out of our misery if - indicated that is the - - -
PN1150
THE COMMISSIONER: May assist you.
PN1151
MR McDONALD: Well, appearing before you is such a miserable experience, Commissioner. If that is the case then we can all pack up and go home.
PN1152
MR JONES: Commissioner, we cannot go so far. We say that a dispute exists between the CPSU and Telstra in respect of the - of work at the Ballarat site insofar as that work is performed outside of the ordinary hours of work. Can I deal with it simply and say you were correct to find that a dispute existed, that the dispute existed within the meaning of section 4, and that is that there is a probable situation giving rise to an industrial dispute. It was available to you to make that finding on the evidence presented, and led by the CPSU and reported at paragraph number 247 of the transcript.
PN1153
[3.53pm]
PN1154
Quoting as best I can, where Ms Shirley says:
PN1155
There is a concern that, okay, we are going to be overtaken by the amount of employees coming in. The other is they are sitting beside Telstra employees and they are doing the same work that Telstra employees are doing, and yet what they can and can't do, as far as holidays, if they are sick, you know, they are coming into work because they haven't got sick leave, and they are concerned about their welfare. There is also a slight division there. Some people have the perception, okay, that they are Labour Hire and we are Telstra, there is big difference -
****
PN1156
etcetera, etcetera. And what what we can see is that there has been a continuing chain of events. The dispute arising out of the demands made by Telstra and Dorothy Farmer, giving rise to a discussion by the executive body of the union about what was occurring. Giving rise to the authorisation of a service of a demand upon Telstra in respect of all work performed at its customer contact service.
PN1157
So it is open to the Commission, and the Commission can find, and was right in finding a dispute on that basis. We submit that it is not necessary for the Commission to go to the next step and to find a Shell style dispute finding between ourselves and Telstra.
PN1158
Those are our submissions in relation to the application by Telstra.
PN1159
THE COMMISSIONER: Thanks, Mr Jones. Do you want to respond to the submissions in relation to the dispute - or are you going to put submissions as to the relief you seek against Dorothy Farmer?
PN1160
MR JONES: Yes, I am, Commissioner, but I guess that rather depends on what you are going to do with Mr McDonald's application.
PN1161
THE COMMISSIONER: Well, it doesn't change - Mr McDonald's application is only to put my red pencil to Telstra: it does not change the application you make against Dorothy Farmer.
PN1162
MR JONES: Very well. If the Commission pleases. In view of the time we have available, Commissioner, I will attempt to deal with this by addressing you the written materials that are before you. Can I return then to CPSU7, where we attempt to set out the facts in summarised form about the matter before the Commission.
****
PN1163
In the first box of that column, Commissioner, we set out in a tabulated form the profile of the employees at Telstra. We draw to the Commission's attention that of the 155 of the 230 employees of Dorothy Farmer are women, and that of the 35 Dorothy Farmer employees who perform the single bill function, 28 employees of these are women. This is drawn from the evidence in the witness statements of Mr Tigchelaar and Ms Shirley and Ms Fisher.
PN1164
There has been a requirement of Telstra and Dorothy Farmer that employees alter their hours of work. That employees face a termination of employment unless these hours - these changes in hours are agreed to.
PN1165
In relation to the contract of employment, we merely make the observation that there is no single written document which constitutes the contract of employment. That much became clear from the cross-examination of Ms Fisher, and you will see in CPSU6 there is actually a number of documents that have been provided to Dorothy Farmer employees upon engagement.
PN1166
Relevantly, Commissioner, to the disposition of the matter, the evidence of Ms Fisher shows that employees have an expectation of ongoing employment. That was quite clear. In cross-examination I asked - - -
PN1167
THE COMMISSIONER: Can I raise this with you. The issue that Mr McDonald raises in relation to the constitution or head of power for the finding of dispute going to the common law contract of employment, it may not be right in relation to termination of employment.
PN1168
MR JONES: I understand this to be the issue the full bench was alluding to in the ..... case.
PN1169
THE COMMISSIONER: Yes.
****
PN1170
MR JONES: For some purposes of the Act.
PN1171
THE COMMISSIONER: So some of the issues agitated here could well be agitated even stronger in an application brought if there was a termination of employment.
PN1172
MR JONES: Of course those powers are based on the corporations head of power and the foreign affairs power, and not the CNA head of power. Yes, Commissioner. In relation to the contract of employment, we sincerely hope we don't have to agitate those issues. We sincerely hope we don't have to agitate those issues, Commissioner.
PN1173
THE COMMISSIONER: Well, it depends whether there is a proposition that there was a unilateral alteration to the contract of employment.
PN1174
MR JONES: Yes, Commissioner, and at whose behest, and which for the purpose of that part of the Act, what was the true identity of the employer.
PN1175
THE COMMISSIONER: Indeed.
PN1176
MR JONES: Can I just add to the material that I have extracted in the Table. This is material that came out in cross-examination; it doesn't appear in the Table. I simply want to make the point, Commissioner, that upon cross-examination of Ms Fisher it became clear that these are not true casuals in the term of daily hire employees.
PN1177
These are not employees who receive their wages at the conclusion of each day's shift. These are employees who have had every expectation of ongoing employment. Indeed, that much is clear from the advertisements that the employees responded to. They made it quite clear that employment was going to be on an ongoing basis.
****
PN1178
It is clear from the cross-examination of Ms Fisher that the employees are rostered for at least on a 5-weekly basis, at least on the basis of 5 weeks. They are expected to submit doctors' certificates when they are absent from work. They are expected to give two weeks notice when they intend to take annual leave, and they have an expectation that they will return to their part on the roster when they return from annual leave, although they don't get paid for either sick leave or annual leave.
PN1179
So we have all the indicia here of an ongoing employee, and not one of a casual employment relationship. However so the employer seeks to describe it, we have all the indicia of an ongoing employment relationship. A 5 week roster, requirement to submit doctors' certificates, to give notice of annual leave, the availability of maternity leave: all of these are indicia of ongoing employment.
PN1180
The evidence before the Commission is unsatisfactory in respect of what the $17.03 an hour is made up of. There is no ability of the witness - in cross-examination of Ms Fisher, Ms Fisher was - - -
PN1181
THE COMMISSIONER: I thought she indicated earlier on that it was a rate plus 25 per cent.
PN1182
MR JONES: Yes, but when that issue was probed - - -
PN1183
THE COMMISSIONER: Well, she couldn't identify it individually.
PN1184
MR JONES: Yes. It may well be, Commissioner, that there is a rate plus 25 per cent, but that doesn't appear from the contract, or the purported contract. It is by no means clear from the purported contract, or indeed the attempted variation of the purported contract at annexure C4, I believe it is.
PN1185
THE COMMISSIONER: No, but it talks about the wage order, does it not? - minimum wage order in Victoria.
****
PN1186
MR JONES: It refers to the minimum wage order. It doesn't refer to which one.
PN1187
THE COMMISSIONER: So, whatever that rate is - - -
PN1188
MR JONES: It doesn't refer to which minimum wage order. That may not be material. And I am reminded by Mr Veenendaal that when pressed on the issue, Ms Fisher said that it was actually the full rate: the $17.03 was the full rate.
PN1189
Can I briefly address the issue of the terms of engagement. Again, Commissioner, in addition to the material that is included in CPSU7, we say that absolutely no weight can be given to the evidence at paragraphs 17 and 18 of Ms Fisher's statement. You will recall that paragraphs 17 and 18 of Ms Fisher's statement deal with what was allegedly said to employees during the interviews.
PN1190
Quite clearly, Ms Fisher wasn't there; on her own admission she wasn't there. There is no evidence before the Commission, and we submit that no regard can be had to the material at paragraph 17 and 18. So it is not at all clear what was said to the employees. What is clear on the material before the Commission is that at least those employees who were engaged pursuant to the 22 June advertisement were advised that they would be working between the hours of 8 am and 6 pm. That is the evidence that is before the Commission.
PN1191
In addition to that, those employees who were engaged pursuant - who replied to a later advertisement that may have had an extended hours included in that advertisement, it certainly was not the practice from the time they commenced at least until this matter came before the Commission, that there was any intention, or attempt to work those employees outside of those day work hours.
PN1192
Commissioner, on the issue of work and family issues, we have attempted to summarise some of the material that is in evidence. The evidence of Ms Shirley - I unfortunately have not marked the paragraph - the evidence of Ms Shirley who is an employee at the Ballarat centre, and who has children herself, clearly shows that there is a lack of child care facilities in the Ballarat region. Evidence also shows that CPSU members have raised their concerns.
****
PN1193
THE COMMISSIONER: But you see, there is only so far I can go. The provision says, "shall have regard to". If the employer says, "Well, go jump in the lake", or "I will have regard to it, the answer is no." Absolutely nothing the Commission can do. The constraints upon the Commission of resolving those sorts of conflicts are enormous.
PN1194
MR JONES: With respect, Commissioner, I don't agree. With respect, we don't agree. There is ample power within the Commission, within the general powers of the Commission to make directions and issue orders in matters - - -
PN1195
THE COMMISSIONER: But you know it is going to cost $100,000 to test that. The situation is that the 89A and the other constraints mean that people can say, no, we are only acting according to law; take us on.
PN1196
MR JONES: They may say that, Commissioner. In our submission, that is all the more reason why there is a lot of continuing work for unions to be doing in this environment.
PN1197
THE COMMISSIONER: Well, that is a matter for you.
PN1198
MR JONES: I will address the Commissioner on the issue of power, because it goes to the orders. If I could do that in addressing in brief form the merit of the application. There are a few things that I did want to say in relation to the evidence, and finally this in relation to the work and family issues.
PN1199
What has been clear is that through the process of this matter coming before the Commission, there has been a change in the attitude and the approach of the employer. When the matter first came before the Commission we were advised that the business would fall in a heap, unless each of these 12 employees "volunteered" to work one evening shift in five. It was quite clear that that was the approach of the employer.
****
PN1200
In response to the directions that the Commission has made, and the undertakings given before the Commission, that situation has altered. Some accommodation has been made for employees: not all employees, but some accommodation has been made. In our submission, that would not have occurred, had this matter not come before the Commission. That does not mean that there is not still some work for the order and the award we seek to do, and we will address you on that.
PN1201
There is one final thing: I wanted to address the Commissioner on the issue of evidence, and that is this. There is absolutely no evidence before the Commission on the issue of cost. There is material that has been led by the CPSU. The CPSU has led material on the issue of cost. And it was foreshadowed when the matter was before you in our last hearing: we clearly said that we do not accept that this proposition, the proposition to roster 12 employees one week in five, is going to bring the company to its knees, and we produced material which was our estimation of the cost. It is less than $1200 a week. Less than $1200 a week, and that was included in our outline of submission.
PN1202
Now, if that was to be put in question, if that issue was to be put in question, the employer had ample opportunity to lead evidence. They couldn't produce the contract. Mr Phipps gave evidence, and he did not make reference to the contract. There are a number of witnesses who could have produced the contract, and could have given evidence in relation to the impact of the orders we sought, which we say is modest, but they didn't.
PN1203
We submit the Commission is entitled to make an inference from that; to draw an inference from that. We say the cost impact is modest on the employer, but the difference it will make to the employees is great indeed. Can I hand the Commission a document - - -
PN1204
THE COMMISSIONER: And if we are wrong, what does it do? They go along to Telstra and seek reimbursement; Telstra say, "Not on your life", and people lose their jobs.
****
PN1205
MR JONES: Commissioner, we say the facts that are before the Commission simply do not permit you to draw that conclusion. Simply do not - - -
PN1206
THE COMMISSIONER: Yes, but we don't live in a sterile world, do we?
PN1207
MR JONES: No, we don't, Commissioner. But if we are wrong, or if I am wrong - if the Commission is wrong in finding in my favour, there are remedies available to the employer.
PN1208
THE COMMISSIONER: Yes.
PN1209
MR JONES: There are remedies available to the employer. And this matter has not come on quickly. We are not here today - this is not the first time we have been here: this matter has been on foot for nearly two months now. They have had ample opportunity - - -
PN1210
THE COMMISSIONER: And some good has been achieved, you say.
PN1211
****
PN1212
THE COMMISSIONER: Just before you go on to that, we might take 10 minutes as a break for people in the afternoon. I will adjourn for 10 minutes.
SHORT ADJOURNMENT [4.11pm]
RESUMED [4.32pm]
PN1213
MR JONES: Has the Commission had the opportunity to read the material in CPSU8?
PN1214
THE COMMISSIONER: Yes, I have looked at it. I have not read it as thoroughly as you might expect me to yet, but I have looked at it.
PN1215
MR JONES: I will attempt in the time available - in view of the time available to us, Commissioner, to take - in view of the submissions I have made on the evidence, just take you to some of the key points in CPSU8. In our submission, there are two issues for you to determine this afternoon. The first is, does the order that we seek provide an appropriate safety net of conditions in respect of the matters in dispute, and the matters in dispute simply are the conditions of employment which attach to the hours of work at the Ballarat Call Centre.
PN1216
The second issue is, should the order be made now. I don't think we can put it any more bluntly than that. We have addressed you on the evidence in relation to the merits of our application. In view of the time, we rely on our outline of submissions, and the material contained in paragraphs 9 through to 22.
PN1217
The only material that I wish to address the Commissioner on in particular is at schedule B, and I will address that in due course: that is schedule B of the CPSU's outline of submission. In paragraphs 4 through to 16, we attempt to succinctly reply to the objections raised in Dorothy Farmer's outline of submission. As we apprehend them, there are three or four key objections, the first being that the form of the orders sought is inconsistent with the provisions of the Telecommunications Services Industry Award.
****
PN1218
It appears to be, although it has not been explicitly put, it appears to be common ground that that award forms the appropriate safety net for work of the type covered by these proceedings, and is a referable document for those purposes. The objection of the employer is, as we understand it, that the requirement in the CPSU's draft order to accommodate the needs of the employees in relation to their work and family responsibilities goes beyond the requirements, or is broader in scope than the provisions at clause 22.5.5 of the Telecommunications Services Award.
PN1219
Commissioner, I have a copy of that clause of the TSI Award, if it is useful for the Commission to have that.
PN1220
PN1221
MR JONES: CPSU9 is an extract from the Telecommunications Services Industry Award referred to in our submission as the TSI Award, and the extract is Part 6 which deals with hours of work, breaks, overtime, shift work and weekend work. Relevantly, Commissioner, I draw your attention to clause 22.5.5 of that award, which provides that:
PN1222
Where an employee receives notice of an intention to change the hours of work and he or she raises significant concerns about the alteration of their hours of work due to their person or family circumstances, the employer shall consult with the employee about those concerns.
****
PN1223
As we understand it, the submissions of Dorothy Farmer says that the obligation to accommodate in our proposed order goes beyond that. We say that that is not true, and that the term of the order is appropriate for circumstances at the Dorothy Farmer site. We include an extract at paragraph 7 which deals with the issue of consultation. This is an extract that would be well known to you, Commissioner, because it was a matter that you presided in, in the case of CPSU v Vodafone, albeit in the context of a requirement to consult over proposed terminations by that employer - terminations of employment by that employer.
PN1224
In that extract you say, and correctly so, in our submission, that consultation is not perfunctory advice on what is about to happen. Consultation is providing the individual or other relevant persons with a bona fide opportunity to influence the decision maker. We say that although those statements were made in the context of proposed termination of employment, they are equally relevant to the meaning of consultation in clause 22.5.5 of the award.
PN1225
Clearly, the objective of the provisions at clause 22.5.5 are to provide the employees with an opportunity to have an input into the decisions - bona fide input into the decisions regarding the rostering and alteration of hours of work. We submit that to the extent that there is a difference between the terms of the draft order, they are consistent with the force and meaning as so described at clause 22.5.5 of the TSI Award.
PN1226
To the extent they are differently worded, we say they are appropriate and relevant to an enterprise specific and an award which binds an employer in respect of one site only. To the extent that there is a difference in the wording, we say that is appropriate to the subject matter of this dispute, and the proposed order determining the dispute.
PN1227
We also note at paragraph 10 of our submissions that clause 4.2.5 of our draft order provides employees with rights which are similar to those imposed by the directions and the undertakings that have already been issued in this matter. I have enclose there the undertaking which is extracted from E2 in these proceedings, exhibit number E2 in these proceedings.
****
PN1228
What we say about that, Commissioner, is that there is simply no evidence before the Commission that those undertakings and requirements have imposed an onerous obligation upon the employer. Quite to the contrary. Some accommodation has been able to be made, and the employer is able to continue its business which making accommodation for the needs of the employees in respect of their family responsibilities. So on the basis of that submission, we meet the objection of the Dorothy Farmer in their outline of submission, so that the order is appropriate.
PN1229
At paragraphs 12 through to 14, we simply submit this, Commissioner. That there is material before the Commission which enlivens the mandatory requirements - the mandatory considerations of section 93A of the Act. We rely on the material in the statement of Ms Shirley and the evidence on the demographics of the workforce subject of the dispute, and the submissions we make here in paragraphs 4 through to 14.
PN1230
I wish to now, Commissioner, deal with - before I do that, can I answer one issue that may be in the Commission's mind and that is this, that if the directions before the Commission - the directions made by the Commissions and the undertakings already extant in this matter have dealt with some of those issues, the Commission may be wondering, well, is there a need for me to exercise an arbitral function in making that part of the order sought by the CPSU. And we submit that there is, and we say that for a number of reasons, and they are set out at paragraph 14.
PN1231
We say there are three reasons why there is still a need to issue the order. The first is that in the absence of a mandatory requirement, we submit that the Commission can make an inference that these concessions - concessions already will not continue. Indeed, there is some suggestion arising out of the cross-examination of Mr Schneefuss that pending the outcome of these proceedings, changes will be made to the contracts of employment.
****
PN1232
So we say that there is an ongoing need. I think it is also relevant that the needs of employees and their work and family responsibilities are not static at any one point in time. There is both the change in body of employees, a change in needs which might change from time to time, but may not be present at the moment, but may be in two months time. For that reason there is a continuing need for a mandatory order in the form sought - a mandatory requirement in the form sought. Can I go now, Commissioner, to the issue of the cost to the employer, and on this issue I wish to refer to the attachment at schedule B of the CPSUs outline of submissions filed in accordance with the directions.
PN1233
THE COMMISSIONER: Yes.
[4.44pm]
PN1234
MR JONES: It is the last page of those.
PN1235
THE COMMISSIONER: Well, that is the submissions in reply.
PN1236
MR JONES: Yes.
PN1237
THE COMMISSIONER: Yes.
PN1238
MR JONES: What the CPSU has attempted to do in its submissions in presenting material in this tabulated form is to put four square before the Commission our understanding of the cost impact of our proposed order to give the employer the opportunity to meet that by way of evidence, and to make it quite clear to the Commission that the order we seek is not going to have an overwhelming economic impact upon the employer. The evidence that - sorry, I withdraw that. The material at schedule B shows that approximately 211 employees of Dorothy Farmer are at the site. That number of Dorothy Farmer employees in single bill says 40, it should actually be 38; and that is an error.
****
PN1239
What we do is calibrate the cost to Dorothy Farmer of the 15 per cent shift loading on the basis of 12 employees who would work one evening shift in five, and work out what the cost to Dorothy Farmer would be on the basis of $17.03 an hour; adding 15 per cent to that, the additional cost per hour per employee is $2.55 per hour. Bear in mind we are talking about the maximum of 12 employees at any one time.
PN1240
THE COMMISSIONER: What would be the equivalent rate under the Telecommunications Industry Award; equivalent award rate for persons who perform these duties?
PN1241
MR JONES: I cannot answer the Commission on my feet, Commissioner. I am unable to assist the Commission on that point.
PN1242
THE COMMISSIONER: Thank you.
PN1243
MR JONES: It is perhaps relevant though to point out that the penalties apply to the rate, the ordinary rate of pay.
PN1244
THE COMMISSIONER: Yes. No, I appreciate that. But you have treated $17.03 as the ordinary rate.
PN1245
MR JONES: Correct, yes.
PN1246
THE COMMISSIONER: And that is what prompted the question: what is the ordinary rate under the Telecommunications Industry Award for persons performing these duties.
PN1247
MR JONES: I misapprehended the question. In our submission, it is $17.03 an hour.
****
PN1248
THE COMMISSIONER: For these persons?
PN1249
MR JONES: Yes.
PN1250
THE COMMISSIONER: But under the award, the existing award you don't know what the current rate is for a person in a similar - - -
PN1251
MR JONES: It is not relevant to the calculation of the penalty because the penalty applies to the rate of pay, the ordinary rate, the rate of pay in the employee's contract of employment.
PN1252
THE COMMISSIONER: Yes, but what stops me from putting in the ordinary rate of pay that is in the Telecommunications Industry Award as the rate of pay upon which to calculate this penalty?
PN1253
MR JONES: I say that that would be an exceptional step to take and inconsistent with the established safety net, Commissioner.
PN1254
THE COMMISSIONER: Well, I am picking up the safety net provision, an award to which this employer is going to consent to.
PN1255
MR JONES: We say, Commissioner, that the appropriate safety net is that the penalty is paid upon the ordinary rate of pay.
PN1256
THE COMMISSIONER: Yes. And what I was saying is I will - what is wrong with me picking the ordinary rate of pay out of the Telecommunications Industry Award for persons at this classification, and then having that apply to the hours of work clause?
****
PN1257
MR JONES: And, in our respectful submission, Commissioner - - -
PN1258
THE COMMISSIONER: Everybody is respectful today in the most wonderful way, isn't it?
PN1259
MR JONES: In my most respectful submission, Commissioner, that would be departing from the safety net practice. And the practice within the safety net - - -
PN1260
THE COMMISSIONER: What, to pick up the existing rate?
PN1261
MR JONES: The practice in the safety net is that the employee's ordinary rate within their contract of employment is the rate at which the shift penalty is paid; that is the safety net standard.
PN1262
THE COMMISSIONER: I am not sure that is right. If the Commission makes a safety net award it doesn't automatically translate whatever the rate paid under the contract of employment is and put that into the award.
PN1263
MR JONES: Well, if I can respond by way of analogy, Commissioner.
PN1264
THE COMMISSIONER: Yes.
PN1265
MR JONES: When the Commission makes an award in relation to redundancy benefits, the benefits that are paid in respect of redundancy are expressed in weeks pay or ordinary rates of pay. And they are not paid upon the award rate of pay, they are paid on the employee's contract of employment rate. And to adopt a different practice would, in our submission, be a departure from the safety net standard and doing a grievous injustice to the employer. By way of analogy, we say that the same - to adopt that approach in relation to shift penalty would have the same effect.
****
PN1266
THE COMMISSIONER: But what would happen if this company had been bound by the award that was up for consideration the week before last? They would have an hours clause in that, they would have a rate in.
PN1267
MR JONES: In our submission, the effect of the award would be that the penalty would be paid on the contract of employment rate.
PN1268
THE COMMISSIONER: Yes, I follow.
PN1269
MR JONES: What can be educed from the table at schedule B, Commissioner, is that out of a payroll approaching $140,000 per week the additional cost to the employer is something less than $1200 a week. Indeed, it is $1147.50 per week. So we say the additional cost to the employer is less than 1 per cent to the payroll, 0.84 per cent of payroll. So we submit, Commissioner, that the Commission need not be concerned about the economic impact of making the order in the form sought.
PN1270
We say, Commissioner, we simply point out that the relevant test that should be applied in these matters is that which is set out in the wage fixing principles, principle 12 of the wage fixing principles which provides - and that is set out at paragraph 14. The Commission is well familiar with the point - with principle 12. Principle 12 says, and that is at paragraph 14 of our initial submissions, written submissions, that:
PN1271
Respondents to an award may apply temporarily or otherwise to reduce, postpone and/or phase in the application of any increased labour cost ...(reads)... on the grounds of -
PN1272
and this is relevant -
PN1273
very serious or extreme adversity.
****
PN1274
And the principle goes on to say that:
PN1275
The merit of such application will be determined in the light of particular circumstances ...(reads)... will be vigorously tested.
PN1276
That is quite a high hurdle. Of course we are not talking about the application of or the - of safety net increases. We say that it is - an analogous approach should be taken in these proceedings. And if the employer raises an issue of cost, then there is an obligation upon them to produce sufficient evidence and that evidence should be rigorously tested - vigorously tested.
PN1277
Before we had a brief adjournment, I made similar submissions to the Commission in relation to the cost. And, Commissioner, really it is important to note that there is an established practice in relation to this and the union has put four square the issue of cost to the employer. They have had this material for some time. It was indeed raised nearly four weeks ago at our last hearing. It has been put in our outline of submission and they have not sought to educe any evidence. Now, quite clearly the rule in Jones v Dunkel requires that the Commission is able to draw an inference adverse to the employer in these circumstances. They had the opportunity to draw - to educe this evidence and they haven't; they haven't done so. The rule in Jones v Dunkel applies. And if I am unable to persuade the Commissioner on this, then there are other remedies available to the Commission.
PN1278
The Commission may, for example, wish to summons the contract if the issue is somehow troubling the Commission. We submit, Commissioner, that you need not do that and to do that would be an injustice to the union and its members. We have met the case. We put the material four square, and it has not been responded to. Commissioner, we say that there is no public interest ground which could prevent the making of the order now in the terms sought and we press that the Commission do that. If you are minded to reserve on this matter, Commissioner, we foreshadow that we would wish to make an application that the extant award be continued. We would ask the employer to maintain or to re-commit to its undertakings already given and, if that is not forthcoming, then we foreshadow that we would seek directions in similar terms. Those are our submissions.
****
PN1279
THE COMMISSIONER: Thank you, Mr Jones. Mr O'Grady.
PN1280
MR O'GRADY: Thank you, Commissioner. Just on that last point, I mean really what that does is reveal that it is a simple proposition. The Commission should not make this interim award because there is in place mechanisms already that meet the needs of the mischief that the union says exists; that is the undertakings. And we have committed to the continuation of the undertakings in our evidence so there is no difficulty. There is no need to make this interim award. We have got a situation where the current position is - - -
PN1281
THE COMMISSIONER: Why shouldn't I if you are going to consent to it? If the evidence of Mr Phipps is it is going to be consented to?
PN1282
MR O'GRADY: Make this award, the interim award that is sought? Because the interim award that is sought goes beyond the terms of the award that is in GP1.
PN1283
THE COMMISSIONER: Well, if I made it precisely in those terms and dealt with hours of work and the relevant classification and rate for that classification. Because the argument that Mr Jones raises is another matter.
PN1284
MR O'GRADY: Well, we have got - but basically what we have got is a situation where that is going to happen as of course - - -
PN1285
THE COMMISSIONER: Why can't it happen now?
PN1286
MR O'GRADY: Because the other parties to that application are not here.
PN1287
THE COMMISSIONER: No, no, but I could - - -
****
PN1288
MR O'GRADY: Mr Jones has said - - -
PN1289
THE COMMISSIONER: I can make it as part settlement of this dispute. And I am not making the whole award, just the question of the hours of work and the rate that would apply to penalties under that clause.
PN1290
MR O'GRADY: Well, that is a very different application which - well, I answer that in this way. We say there is no need for you to do it. There is no - there is currently no mischief for you to meet. In making any award you, Commissioner, have to have regard to the principles in relation to interim awards.
PN1291
THE COMMISSIONER: Yes.
PN1292
MR O'GRADY: Most particularly protecting the employees, and we say there is nothing to protect against because there are perfectly - - -
PN1293
THE COMMISSIONER: Well, other than that they won't get a penalty rate for the hours that they work if they work penalty hours.
PN1294
MR O'GRADY: Well, if I can take you to CF4 which is attachment to Celia Fischer's statement, that is the document that sets out arrangements. And you will see there, Commissioner, that there are differing rates. There is 17.03 per hour and there is the 22.56 for Saturday, Sunday, and 25.56 for public holidays. Now, what we say is that that is the preservation - those rates and the undertakings and your award, Commissioner, is the preservation of the status quo. Anything more goes beyond the status quo. Now, that is a situation that only needs to prevail for another week. On Mr Jones' - - -
PN1295
THE COMMISSIONER: No, but it depends upon how the argument is resolved as to operative date. If the argument is resolved as to operative date in favour of the employers, it will be in October some time. If the argument is resolved in relation to operative date that the union agitate for, it will be next week.
****
PN1296
MR O'GRADY: I understood Mr Jones to say when he stood up for the purposes of making his submissions that were it not for the letter, that award would have been made on 21 April.
PN1297
THE COMMISSIONER: Yes, but the operative dates that could be made, but the operative dates are going to be fairly important. That is the hotly contested issue between the parties.
PN1298
MR O'GRADY: But those were his words "would be a consent award made in settlement of the dispute". So the - - -
PN1299
THE COMMISSIONER: Well, Mr Jones, am I wrong? Is the date consented to now?
PN1300
MR JONES: No, Commissioner, it is not.
PN1301
MR O'GRADY: Sorry, Commissioner, I am only repeating to you the words that were used at the time - - -
PN1302
THE COMMISSIONER: I know.
PN1303
MR O'GRADY: - - - perfectly consistently with Mr Phipps' evidence. There is something hanging around in the ether that is not before you here.
PN1304
THE COMMISSIONER: No, but I thought I had been making it absolutely plain. If I haven't, my powers of communication are poor. I have said that the parties don't agree to operative date. It is before me.
PN1305
MR O'GRADY: Yes.
****
PN1306
THE COMMISSIONER: I know what is agreed and I know what is not agreed. An operative date is not agreed. The union want it immediately. The employers want it later in the year.
PN1307
MR O'GRADY: Well, what we say to that, Commissioner, is this that there is nothing to suggest that what is in place already which consists of an existing interim award does not protect the employment - - -
PN1308
THE COMMISSIONER: But that deals with - well, let me ask you another question because I am troubled by this because of my interim award, and I am troubled by it in other matters. Can we go to the Act and can we go to the no disadvantage test of the act.
PN1309
MR O'GRADY: In relation to certified agreements, Commissioner?
PN1310
THE COMMISSIONER: Yes, or in relation to AWAs. Is my interim award an award for the purposes of the no disadvantage test?
PN1311
MR O'GRADY: Sorry, Commissioner?
PN1312
THE COMMISSIONER: Is my award, the interim award that only contains a dispute settlement procedure, an award for the purposes of the no disadvantage test?
PN1313
MR O'GRADY: It may well be one of a number of awards.
PN1314
THE COMMISSIONER: Or it may be the award for the purposes of the no disadvantage test. I am not raising it idly.
****
PN1315
MR O'GRADY: Well, it is an award that is binding upon the respondents DFP.
PN1316
THE COMMISSIONER: Yes.
PN1317
MR O'GRADY: It is an award that doesn't contain any rates of pay.
PN1318
THE COMMISSIONER: No.
PN1319
MR O'GRADY: But there is an industry award to which we have consented to be bound which is not yet made.
PN1320
THE COMMISSIONER: Yes, and if you are successful, won't - well, won't go into - well, I don't - you might be bound but you might have to appear separately, depending upon whether or not the letter of Telstra has shaken other employers as it hasn't appeared to have shaken the managing director of your client. I am just troubled that if you have consented to the award, what would inhibit you now from having the award rate for the class of person employed in Ballarat and the hours of work apply as of now; what would inhibit you? You consented to the award - - -
PN1321
MR O'GRADY: In terms of - I am having difficulty working out what you are putting to me, Commissioner. The award rate is - - -
PN1322
THE COMMISSIONER: I am sorry, we are jumping from one thing to another.
PN1323
MR O'GRADY: Can I just say one thing while I am on my feet, and that is this.
PN1324
THE COMMISSIONER: Yes.
****
PN1325
MR O'GRADY: I understand the relevant award rate to be $16.58. The loaded up rate for casuals is $16.58 an hour, if that assists.
PN1326
THE COMMISSIONER: Thank you. Well, can I move away from the no disadvantage test because that is an issue that, as I said, is not an idle question. It never ceases to amaze me the ingenuity of some submissions. But what inhibits your client now from consenting to the application of the award that you say you are going to consent to next week in these proceedings but only insofar as hours of work and the relevant rate of pay for the class of person that is employed and that award, the award that would be made on an interim basis, would be set aside when the other award becomes fully operative? What inhibits you from consenting to that now?
PN1327
MR O'GRADY: Well, I would have to seek instructions in relation to that, Commissioner, but what you are doing, Commissioner, is you are actually reversing the onus and putting it back on us to say, well, why shouldn't we be bound by an interim award.
PN1328
THE COMMISSIONER: Now, but you have already indicated you are going to consent to it, to an award.
PN1329
MR O'GRADY: We will, as of - well, as of next week.
PN1330
THE COMMISSIONER: And I know there is an argument about timing. The problem I face in Ballarat is said to be now. The issue that arises quite squarely is the rate to be paid up until midnight on a weekday.
PN1331
MR O'GRADY: Well, there has been a bit of movement in the mischief, if you like, Commissioner, because the mischief is not the money. The mischief when all of this started was the hours, and imposing changes on people. And that has moved - - -
****
PN1332
THE COMMISSIONER: The issue of money was raised.
PN1333
MR O'GRADY: That has moved considerably and, look, all of this stuff about cost and everything like that to the company, that is not relevant for the purposes of your decision in terms of making an interim award.
PN1334
THE COMMISSIONER: Well, isn't it?
PN1335
MR O'GRADY: Well, what is relevant is, is there a need for you to make an award to protect against some mischief? Now, you didn't make that award on the last occasion. What has happened since that occasion is that we have moved to cater for the concerns that were being raised in accordance with the arrangements that have been put in place.
PN1336
THE COMMISSIONER: Don't misunderstand me. I am not being critical. I recognise you have done that.
PN1337
MR O'GRADY: And there is nothing to suggest that that is not going to continue. There is absolutely nothing to suggest. In evidence Mr Hayden Jones acknowledged there has been no terminations. He acknowledged that there has been consultation and that we have worked through these issues. There was no contest. No issue was taken with Mr Schneefuss' material in his second statement which was updating you, Commissioner, in relation to what had taken place.
PN1338
THE COMMISSIONER: Yes.
PN1339
MR O'GRADY: So what we say is that there is no basis for doing anything more than what is already in place.
PN1340
THE COMMISSIONER: Yes. Well, I have got evidence that you are consenting to the award. That is correct, isn't it?
****
PN1341
MR O'GRADY: That is correct.
PN1342
THE COMMISSIONER: And is there any inhibition upon you consenting to the terms of that award only insofar as it relates to hours of work and the rate for persons of the classification operating at Ballarat to apply from tomorrow? Do you want to take some instructions on that?
PN1343
MR O'GRADY: I can take instructions in relation to that, Commissioner, but - well, I will take those instructions, Commissioner.
PN1344
THE COMMISSIONER: Yes. I will adjourn for five minutes so that you can take instructions because that squarely looks at the cost question. I will adjourn for ten minutes.
SHORT ADJOURNMENT [5.07pm]
RESUMED [5.21pm]
PN1345
MR O'GRADY: Commissioner, my instructions are these. That DFP could not consent to such an award being made. There is no evidence to this effect that it says that it would put the viability of this aspect of its operations at risk.
PN1346
THE COMMISSIONER: Why?
PN1347
MR O'GRADY: It goes to the very heart - - -
PN1348
THE COMMISSIONER: Why would it do that?
****
PN1349
MR O'GRADY: Because of the - - -
PN1350
THE COMMISSIONER: Because of TELSTRA2.
PN1351
MR O'GRADY: No, Commissioner, because of the increased cost that would be incurred. A week before we were in a situation where what is going to be before the Commission is the determination of a final award in the matter where submissions in relation to those issues would be put, if needed, if there is no consent. The other thing we say about it is this. It effectively pre-determines that dispute insofar as we are concerned.
PN1352
THE COMMISSIONER: Pre-determines which dispute?
PN1353
MR O'GRADY: The dispute that is before the Commission next week by way of, what is the alleged consent - - -
PN1354
THE COMMISSIONER: But your client has already put in his witness evidence that he was going to consent and that he didn't authorise the application for an adjournment.
PN1355
MR O'GRADY: He was going to consent to an award in terms of the attachment to his statement.
PN1356
THE COMMISSIONER: Yes.
PN1357
MR O'GRADY: Which has the rates cutting in as of 1 October. So that pre-determines what you are putting to me, Commissioner, it pre-determines that dispute which is before the Commission next week.
****
PN1358
THE COMMISSIONER: That is the operative date, and if I imposed the rates and the penalty rates, it would make 230 employees out of 300 an unviable proposition for Dorothy Farmer because they couldn't recover the cost from Telstra.
PN1359
MR O'GRADY: Well, I am not sure that it actually applies to the 230-odd employees. But if that is the case, yes.
PN1360
THE COMMISSIONER: Yes.
PN1361
MR O'GRADY: The other thing about it is this, Commissioner, what is being put is not something that the union has sought and right up until - - -
PN1362
THE COMMISSIONER: I know, that is why I am putting it to you.
PN1363
MR O'GRADY: Right up until about 15 minutes ago when you vigorously quizzed Mr Jones on the issue, he was standing very firm on the $17.03.
PN1364
THE COMMISSIONER: Yes, I know, I know.
PN1365
MR O'GRADY: And we have got another answer to that, of course, and that is that that creates a paid rates award and the Commission has no jurisdiction to make a paid rates award.
PN1366
THE COMMISSIONER: Well, no, it doesn't by itself create a paid rates award. It only does so if I say that there should be no rate of pay paid above that.
PN1367
MR O'GRADY: Well, what it does do, Commissioner, is it doesn't create a minimum rates award.
****
PN1368
THE COMMISSIONER: But if I say it is the minimum rate, it is the minimum rate.
PN1369
MR O'GRADY: Well, then it is a - - -
PN1370
THE COMMISSIONER: Now, whether that is properly fixed is another question, having regard to relativities in other rates.
PN1371
MR O'GRADY: Then it is a minimum rate that is above the minimum rate for the industry and, therefore, it is inconsistent with the interim award making principles.
PN1372
THE COMMISSIONER: Yes.
PN1373
MR O'GRADY: So either way, it is - that is our answer to that aspect of the case, and I was going to get to that in my submission. And we say there is a couple of answers - - -
PN1374
THE COMMISSIONER: No, but, you see, I put these questions to Mr Jones and I put them to you and, lest anybody think the role of the Commission is simply to listen to the parties and not raise questions, it is not.
PN1375
MR O'GRADY: I appreciate that, Commissioner. I appreciate that but - and I am responding to your questions as best I can.
PN1376
THE COMMISSIONER: So you say you can't consent because it would make - what, I am sorry, not 230 - 28, isn't it?
PN1377
MR O'GRADY: This aspect of - - -
****
PN1378
THE COMMISSIONER: It would make your business - it would impact upon the viability of your business to consent to whatever the award rate is going into an award and coupling that with the hours of work.
PN1379
MR O'GRADY: That is correct, Commissioner.
PN1380
THE COMMISSIONER: That is your instructions.
PN1381
MR O'GRADY: Yes, those are my instructions, Commissioner. Now, if I can perhaps address some of the submissions that were made by Mr Jones. Commissioner, you will be familiar with the principles in relation to the making of interim awards. I don't need to take you to those. They are in our submission. What we say is that in general terms there is nothing more that needs to be protected against, particularly when one has regard to the caution and restraint that the Commission warns ought be exercised in relation to the making of interim awards. In addition, when that is stacked up with what is the status quo. Now, what we say the status quo is for the purposes of this application that is before the Commission today is the contracts of employment, the undertakings that were given to the Commission on 4 April, and the interim award that you made, Commissioner.
PN1382
Now, the CPSU in paragraph 13 of its outline makes a number of submissions in relation to the proposed interim award, or its draft award. And it says, well, really that is consistent with existing industry standards, which I think everyone accepts is the TSI Award. We say that is not so. We say it goes further than the prevailing industry standard in the TSI Award, and we say that in a number of respects. And in CPSU8 which is the responsive submission, Mr Jones seeks to answer our submission in relation to the accommodation point.
PN1383
And the accommodation point is quite an important point, Commissioner, because there are words that are added to the prevailing industry award in the interim award. Specific words are added, and it may be worthwhile, Commissioner, if you have before you the amended draft order and also the extract of the award which Mr Jones tendered.
****
PN1384
THE COMMISSIONER: Yes, yes.
PN1385
MR O'GRADY: The relevant provision in the amended draft order is 4.2.5.
PN1386
THE COMMISSIONER: Yes.
PN1387
MR O'GRADY: And the relevant provision in the award is 25.5.5. Now, in the original submission Mr Jones says at the fifth bullet point at paragraph 13:
PN1388
The provisions for consultation and accommodation in the draft award are consistent with those in the TSI Award ...(reads)... for consideration and accommodation of personal and family responsibilities.
PN1389
He seeks to add some legs to that in paragraph 7 and 8 of CPSU8. But the reality is, Commissioner, the TSI Award doesn't say that at all. If you look at paragraph 4.2.5 of the draft award everything after the comma on the second last line of that paragraph is new. The word "concerns" is where 22.5.5 of the TSI Award stops. Now, if it is the case that it adds nothing new, why do the words need to be there? It does add something new. It actually requires the employer to accommodate the needs and the concerns of the individuals.
[5.30pm]
PN1390
And Mr Jones seeks to support his submission with the quote from your decision, Commissioner, in the Vodafone matter. But if you look at that quote it says nothing of the sort. What it says is:
PN1391
Consultation is not joint decision making or even a negative or frustrating barrier to the prerogative of management to make decisions. Consultation allows the decision making process to be informed.
****
PN1392
And that is what we are undertaking at the moment in terms of your existing interim award and the undertakings that have been given. In order for us to accommodate the concerns of individuals, it puts a straitjacket around us and it leaves us with a process the logistics of which are unimaginable.
[5.30pm]
PN1393
The other point I do make as well, Commissioner, is this. It is a point of a minor nature but it is worth pointing out. That is that 22.5.5 of the award has the word "significant" concerns, on the second line, "where he or she raises significant concerns." That has just slipped off the page so far as 4.2.5 in the draft award is concerned as well. So we make that point, Commissioner. We say that that also makes this award something that is beyond the minimum standard, beyond the safety net. In relation to clause 4.1 and the ordinary hours of work we have some difficulty with that.
PN1394
The correlative provision the TSI award, Commissioner, is 22.6.1 and you will see that there is one difference and that is - in fact, there are two differences. One is, importantly, that 22.6.1 has "ordinary hours of work for day work." Those words are missing in clause 4.1 and we say that creates a confusion and it could have one of three results. It could render, as is said in our submission, those paragraphs in the draft order which go to the introduction of shifts and weekend penalty rates totally meaningless because it effectively means that everything outside that span of hours is paid at the overtime rate, and they are just not ordinary hours.
PN1395
The other way in which that might be interpreted is to hit us with a double penalty; we pay the overtime rate and the shift penalties. Now, clearly, that would be totally inappropriate and would be way and above what the TSI award provides for. But at the very least what we are subjected to is paying over and above the paid rates, the rates that we currently pay, okay, and they are then loaded up with the various penalties. So on any of those views as to which way you interpret clause 4.1, it is more generous than the prevailing industry standard.
****
PN1396
If I can go to the second bullet point of paragraph 13 of the original CPSU submission, and that is that it says that the provisions for bandwidth are more beneficial to employers in relation to the other awards but equal to those in the TSI award. Well, if you accept the submission in relation to clause 4.1 that just can't be the case but even putting to one side that submission, it lacks - the draft interim award lacks the flexibilities that are available under the following clauses in the TSI award, which are 22.6.2, 22.6.3 and 22.7.7, which deal with increasing the span of hours by an hour and also negotiating 12-hour shift arrangements.
PN1397
The fourth bullet point in paragraph 13 of the original submission of the CPSU goes to the notice of change of roster. Now, that of itself concedes that what is sought in the interim award is above the standard in the award. The provisions there, Commissioner, are clause 4.2.1 in the draft interim award and 22.5.1 in the TSI award. The following paragraphs in the original submission then go to the additional cost issue and also the family responsibilities issue and they are further supported by paragraph 15 of CPSU8.
PN1398
Now, what we say about this is the principles of the family responsibilities convention support the making of the interim award in terms sought by the CPSU but they don't demand it. The international conventions also support the making of your interim award, Commissioner, with the disputes when taken into consideration with the undertakings and there is no evidence to suggest that that process is not working. In fact, the evidence is to the contrary. It is working and these issues are being resolved.
PN1399
We say, Commissioner, that there is no evidence whatsoever that anyone is being adversely affected in such a way as is suggested in paragraphs 17 and 18 of the original CPSU submission and further, there is no evidence to suggest that anyone is being precluded from employment as is suggested in paragraph 21 of the original CPSU submission. In fact, the unchallenged evidence is to the contrary. One final point in relation to the proposed interim award, and that is that clause 3.2, which sets the scope of the award, fails to limit its scope to those employees who work in single - - -
****
PN1400
THE COMMISSIONER: The single bill.
PN1401
MR O'GRADY: - - - bill. Yes. What we say, Commissioner, is that even putting to one side the interim award principles, etcetera, an award in the terms of this draft order cannot be made by the Commission simply because it is not a minimum rates award and you can't make it because it is contrary to section 89A(3). Further, of course, to make it would be contrary to the objects of the Act both in paragraphs (d) and (e) of section 3 and paragraphs (b), (c) and (d) of section 88A. They go to the minimum - the role of awards is minimum rates and supporting fair and effective agreement making.
PN1402
Now, the sort of thing that is in this draft order is the sort of thing that one might expect in a certified agreement if an employer was prepared to give employees a right of veto. Now, I don't know any employer that would do that, Commissioner. The other thing is this interim award is contrary to the National Wage case principles, both principle 1, which picks up those paragraphs in section 88A, which I referred to, and principle 11, which deals with the first award making principle. In relation to principle 12, that is the economic incapacity principle and we say that is not relevant, really. There is no issue of economic incapacity.
PN1403
In terms of our application, we have an application before you, Commissioner, under section 111(1)(g)(iii) to refrain from further hearing the dispute on public interest grounds. There are really two bases for that submission, Commissioner. The first is the very issues that I have just mentioned; that is, the making of the award is contrary to the provisions of the Act, section 89A(3), the objects and also the National Wage case principles. That speaks for itself, that to do so is contrary to the public interest. The other thing is that it makes us subject to two conflicting awards being made by the Commission within a very short space of time.
PN1404
THE COMMISSIONER: Yes, I follow.
PN1405
MR O'GRADY: Those are the submissions, Commissioner.
****
PN1406
THE COMMISSIONER: Thank you very much. Mr McDonald.
PN1407
MR McDONALD: I will respond very briefly if I may. Can I concentrate on paragraphs 2.2 and 3 the submissions in reply and the way in which those submissions characterise the dispute. The way it is put is that the subject matter of the dispute, hours of work, extends to both employers - that is Telstra and DFP - in respect of all employees at the Ballarat site. Characterised this way, it is not necessary for the Commission to determine the issue of whether Telstra is the true employer of the employees who fall within the ambit of the dispute because the work performed at the site is performed interchangeably by Telstra and DFP.
PN1408
Now, we understood Mr Jones' submission apropos clause 2.2 and 3 to be that it wasn't necessary for you to determine this case on the basis of the Gate Gourmet basis, that is, capacity of Telstra as a non-employer, because of its status as a direct employer of employees at Ballarat. Now, what follows from that, we would submit, is this: there is a comprehensive award, that is the Telstra General Conditions of Employment Award, and the relevant dispute finding underpinning that is C number 30035 of 1996. And that is obviously a comprehensive log which contains claims in respect of hours of work.
PN1409
Now, in that circumstance, Commissioner, there is simply no need - there is no utility in the maintenance of the dispute finding in these proceedings in respect of the subject matter of hours of work and the other matters you have alluded to in your dispute finding, given that all of those are embraced within that dispute finding that I have referred to. Now, the question of whether or not - it is 300835 of '93 Mr Jones tells me. I don't think that alters the force of the submission.
PN1410
The question of whether or not that dispute finding would provide ambit for the making of an award in the circumstances as they exist in the proceedings before you is entirely hypothetical for the reason that the CPSU does not press for any award against Telstra. We just don't need to address that issue, perhaps fortunately. But we would submit that there is simply - that quite apart from all of the other submissions that we have put, there is simply no utility in maintaining the dispute finding the Commission has previously found and we would ask that the Commission vary that dispute finding by deleting the reference to Telstra. If the Commission pleases.
****
PN1411
THE COMMISSIONER: Thanks. Mr Jones.
PN1412
MR JONES: I won't be replying to Mr McDonald's submissions. I was told that I have had my turn to say what I have got to say in relation to that. Very briefly in reply to Dorothy Farmer, Dorothy Farmer makes a submission from the bar table that the order sought would put their business at risk. We fail to see as a matter of general logic how the payment of penalties to 23 employees out of some 200-odd employees is going to bring a business to its knees when that employer employs many thousands of employees Australia-wide. Were that the case, clearly, there would be an onus on Dorothy Farmer to present evidence. We have made submissions on that. We won't repeat them.
PN1413
The next issue that I wish to raise is in response to the submission that there is no grounds on which to make an interim award because interim awards the purpose of which is generally to maintain the status quo. We don't say that the power of the Commission is so restrained. We say that the Commission has a discretion at large to determine the circumstances in which an interim award may be made. If we are wrong on that, then we submit, Commissioner, that the status quo is not so narrowly described as Mr O'Grady would have us believe. In his submission, the status quo is described by the contracts of employment, the undertakings and the interim award which relates to a dispute avoidance and settlement procedure.
PN1414
We say that the contracts of employment is a matter in contention in itself. It is by no means clear in the material before the Commission how they are described or what the content of a contract of employment is. I merely say that to say the issue is problematic. In any event, in our submission, the status quo includes more than just those matters and we have outlined it in paragraph 23 of our submissions in reply that the status quo consists of both the wages and the hours of work that the employees were working prior to this matter coming before the Commission.
****
PN1415
So if Dorothy Farmer relies on the maintenance of the status quo as a defence to this application, then what follows is that the hours of work won't be changed either because they are a part of the status quo. We can put the employer's mind at rest in relation to the omission of the words "for day work" in clause 4.1 of our draft order. We say that nothing turns upon that and consent to amending our draft order here to reflect that change. The inclusion of 12-hour shifts were not included in the draft order because we simply don't believe they are appropriate in a call centre environment and I don't think anyone here is seriously suggesting that employees performing this type of work should work a 12-hour shift. We simply submit that that is in inappropriate.
PN1416
Commissioner, we repeat and rely on our submissions made earlier in relation to the cost issue. Those are our submissions in reply.
PN1417
THE COMMISSIONER: Thank you. I propose to do three things. I am going to reserve my decision in relation to the application to revoke and/or vary the finding of dispute. In relation to the application made by CPSU for a further interim award, the award I made on 4 April is expressed in terms that it is set aside as of today. I propose to remake that award and vary that award to incorporate an award rate from the Telecommunications Industry Award for the relevant classification of the persons who are in the single bill as described in the parties and persons bound clause in the award and will include the hours of work clause that is contained also in the Telecommunications Industry Award.
PN1418
The remaking of the award as it currently stands will apply from today. The variation to the award to include the award rate and the hours of work clause will occur from next Thursday, the 22nd. I will relist this matter with matter 2002/2797 next week in Sydney, that is the matter of the labour hire matters, for a report back hearing. I will list this matter, at which stage Dorothy Farmer may make further submissions in relation to the cost of the matter and whether the variation should occur, on Thursday and I will be in a better position then to understand where the consent or otherwise of parties fall in relation to the labour hire matter. The union is directed to draw up an appropriate order to that effect.
****
PN1419
Now, Mr McDonald, if you wish, you are excused from attendance at that hearing but it is a matter for you.
PN1420
MR McDONALD: Thanks, Commissioner.
PN1421
MR O'GRADY: Commissioner, one thing, it might be appropriate if there be some sort of direction in relation to transcript of today.
PN1422
THE COMMISSIONER: Yes, of course. It has been a long day. We will do the best we can to do it as quickly as we can. Certainly, we will make arrangements for transcript to be available no later than when you are due to appear again next Wednesday at 2.30, the 21st in Sydney. I will try and get it to you the day before but it depends upon how Auscript are going with their demands at the moment. But I will put in an urgent request for it. And everybody has filled in their form or, no doubt, everybody filled in their form. All right. Well, thank you for your submissions and your assistance. The matter is adjourned until the 21st.
ADJOURNED UNTIL WEDNESDAY, 21 MAY 2003 [5.52pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
ANTHONY JOHN TIGCHELAAR, SWORN PN367
EXAMINATION-IN-CHIEF BY MR McDONALD PN367
EXHIBIT #TELSTRA1 ORIGINAL AND SUPPLEMENTARY WITNESS STATEMENTS BY ANTHONY JOHN TIGCHELAAR PN383
CROSS-EXAMINATION BY MR JONES PN386
WITNESS WITHDREW PN535
MARGARET SHIRLEY, ON FORMER OATH PN565
EXAMINATION BY MR JONES PN565
EXHIBIT #CPSU5 STATEMENTS OF M. SHIRLEY PN584
WITNESS WITHDREW PN590
HAYDEN JONES, ON FORMER OATH PN593
EXAMINATION BY MR O'GRADY PN593
WITNESS WITHDREW PN600
PETER GRAHAM PHIPPS, SWORN PN603
EXAMINATION-IN-CHIEF BY MR O'GRADY PN603
EXHIBIT #E3 STATEMENT OF PETER PHIPPS PN613
WITNESS WITHDREW PN631
CELIA FISCHER, SWORN PN633
EXAMINATION-IN-CHIEF BY MR O'GRADY PN633
EXHIBIT #E4 WITNESS STATEMENT OF CELIA FISCHER PN650
CROSS-EXAMINATION BY MR JONES PN653
FURTHER EXAMINATION BY MR O'GRADY PN757
WITNESS WITHDREW PN761
EXHIBIT #E5 WITNESS STATEMENT OF MS D. O'ROURKE PN765
EXHIBIT #CPSU6 DOCUMENT HEADED: TEMPORARY EMPLOYMENT CONTRACT, DOROTHY FARMER PERSONNEL, WITH ATTACHMENT HEADED: CONDITIONS OF EMPLOYMENT,
SUMMARY PN768
MARKUS CHRISTIAN SCHNEEFUSS, AFFIRMED PN771
EXAMINATION-IN-CHIEF BY MR O'GRADY PN771
EXHIBIT #E6 TWO WITNESS STATEMENTS OF MR M.C. SCHNEEFUSS PN785
CROSS-EXAMINATION BY MR JONES PN789
RE-EXAMINATION BY MR O'GRADY PN809
WITNESS WITHDREW PN814
PETER GRAHAM PHIPPS, ON FORMER OATH PN828
EXHIBIT #TELSTRA2 LETTER FROM MR HARGREAVES DATED 30/04/2003 PN831
WITNESS WITHDREW PN838
EXHIBIT #CPSU7 SUMMARY OF THE EVIDENCE PN1073
EXHIBIT #CPSU8 DOCUMENT PN1212
EXHIBIT #CPSU9 EXTRACT FROM TELECOMMUNICATIONS SERVICES INDUSTRY AWARD PN1221
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