AG2003/4920, Transcript of Proceedings [2003] AIRCTrans 2101 (2 June 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N 2697
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

AG2003/4920

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Telstra Corporation and Others for
certification of the Telstra - Infrastructure
Services Agreement 2002-2005

MELBOURNE

4.13 PM, FRIDAY, 16 MAY 2003

PN1

MS S. KENNEDY: I appear on behalf of Telstra Corporation. I appear with MR B. STAPLETON, Group General Manager of Workplace Relations, and MR J. WOOD, General Manager, Human Resources, for Infrastructure Services.

PN2

MR N. BRETAG: I appear for the CEPU. Appearing with me today is MS J. MILLIGAN.

PN3

MR T. VEENENDAAL: I appear for the Community and Public Sector Union.

PN4

MS K. LOVETT: I appear on behalf of APESMA and the POAV.

PN5

THE COMMISSIONER: Yes, Ms Kennedy.

PN6

MS KENNEDY: Thank you, Commissioner. Can I start by thanking the Commission for bringing this matter on at such short notice. It is greatly appreciated by all the parties. Can I then go on to thank the parties for their participation in the negotiation process, a process which was, I think now that we have an agreement before us to certify, a satisfying process.

PN7

The application the subject of these proceedings relates to the Infrastructure Services Agreement of 2002-2005. This is an agreement that has been reached between Telstra and four employee organisations pursuant to section 170LJ of the Workplace Relations Act. The parties together seek to have this agreement certified. Yesterday we filed with the Commission copies of the application, the agreement and all supporting original statutory declarations along with a range of other documents in a folder. I have now to hand up to the Commission three copies of those documents.

PN8

THE COMMISSIONER: Thank you.

PN9

MS KENNEDY: I have provided each of the parties with copies of the same. These same materials were filed in the Commission in support of our other applications for certification of four other Telstra enterprise agreements which were certified by the Commission as presently constituted on 20 December 2002, and for completeness I will just read the matter numbers for the transcript; in matter numbers AG2002/6680, 6681, 6682, 6683 and 6684. There was one folder filed in those proceedings which has not been filed today. I would like to refer to that. It was folder 2 in those proceedings and it contained a copy of the Telstra core job descriptions. I have another copy here with me today in the event that you would like to see that, but it is - - -

PN10

THE COMMISSIONER: No, no, it is all right.

PN11

MS KENNEDY: Thank you, Commissioner. The agreement relates to the Infrastructure Services Business Unit of the Telstra business, and that is referred to at part 2 of the statutory declarations. The agreement applies to an operation or part of a single business for the purposes of section 170LB(3)(b) of the Act. This is the same format which has been followed in the two previous rounds of enterprise bargaining at Telstra Corporation.

PN12

Part 3.4 of the statutory declaration will show that Telstra Corporation is a constitutional corporation and is the employer party to each agreement. None of the agreements subject to the proceedings - sorry - the agreement is not a greenfields agreement. The employee organisations bound by these agreements are the four employee organisations that made appearances today, just briefly the CEPU, APESMA, POAV and the CPSU.

PN13

As set out in part 5.1 of the statutory declarations, each of the employee organisations have at least one member employed in a part of a single business to which the agreement relates and are entitled to represent the industrial interests of their members and therefore the requirements of section 170LJ(1) of the Act are satisfied.

PN14

The agreement was made in accordance with section 170LJ(2) in that a valid majority of persons employed at the time whose employment will be subject to the particular agreement genuinely approve the agreement. The details in relation to the approval which was given by employees is are set out in part 6.1 and 6.2 and annexure 1 of Mr Brian Stapleton's statutory declaration. You will find that at tab 2.

PN15

The Australian Electoral Commission has provided the following results in relation to the voting on the agreement. There were 5681 votes in favour and 3882 votes not in favour. Prior to approval being given, the terms of the agreement were appropriately explained to the relevant employees in accordance with section 170LJ(3) of the Act. The details of this are set out in parts 6.6 and 6.8 of the statutory declarations together with the annexures to Mr Brian Stapleton's statutory declaration. This shows that each employee who would be covered by the agreement were given a copy of the agreement which would cover their employment and the terms of that agreement were appropriately explained to the employees.

PN16

Various awards regulate the terms and conditions of employment of employees who would be covered by the agreement. The details of these awards are contained in part 7.1 of the statutory declarations.

PN17

It is submitted by the parties and by Telstra that the certification of the agreement would not result, on balance in the reduction in the overall terms and conditions of employment of employees covered by the agreement, and therefore we submit that the agreement passes the no disadvantage test as set out in section 170XA of the Act. In this respect the agreement builds on and improves the terms and conditions of the previous Telstra enterprise agreement certified by the Commission in 2000.

PN18

You will see that the agreement contains a concept of what is referred to as a "supplementary worker". In Telstra and the parties' view, this outcome is a positive thing for Telstra and it will allow Telstra to better meet its customer demands. Based on a comparison between the hourly rates of supplementary workers and other terms and conditions set out in schedule D of the agreement and the hourly rate set out in the applicable awards, the parties are satisfied that the rates of pay for these people is such that the no disadvantage test is satisfied.

PN19

On the issue of no disadvantage, I wish to clarify the parties' position in relation to what the parties have named the "grandfather allowance". If you turn to clause 12.2.3 of the agreement, it states:

PN20

The employees who were subject to the existing Telstra certified agreement will receive a grandfathering allowance in certain circumstances ...(reads)... so they are not financially disadvantaged by the particular application of the new agreement.

PN21

In other words, the company rates increase. You will see that the grandfather allowance will form part of the grandfathered employees' actual salary that is relevant for the purposes of calculating leave, superannuation and other such entitlements. It is the parties' intention that the grandfathering provisions only apply in a limited set of circumstances; that is, it only applies to employees who were subject to the 2000 certified agreement and not to employees who are subject to other industrial instruments.

PN22

As set out in part 7.6 of the statutory declarations, the agreement contains a disputes settlement clause and therefore the requirements of section 170LT(8) are satisfied. The agreement has a nominal expiry date of 22 June 2005, thus the requirements of section 170LT(10) are satisfied.

PN23

Telstra wishes to put on the record that during the life of the agreement some award variations are envisaged which will affect employees covered by the agreement. These award variations will include an application in respect of casual employees. It is not the parties' intention that any claim made in relation to these award variations should be regarded as extra payments for the purposes of the no extra claims clause of the agreement.

PN24

For completeness, I also wish to tender some correspondence and other - in fact, I want to tender all of the materials contained in the folder. Do I need to take you through each of those or to take - - -

PN25

THE COMMISSIONER: No, no, that is all right.

PN26

MS KENNEDY: - - - the whole thing is tendered.

PN27

THE COMMISSIONER: The folder that contains all of the materials, including the statutory declarations, correspondence, job evaluation and operational motor vehicle procedure and commuter use approval form will be K1.

EXHIBIT #K1 FOLDER CONTAINING ALL MATERIALS

PN28

MS KENNEDY: Thank you, Commissioner. So I don't need to take you through each of those pieces of material other than to say in relation to the motor vehicle procedure and commuter use approval form that is referred to in clause 13.3.1 of the agreement, and the Telstra job evaluation and consultation system document is referred to at clause 12 of the agreement.

PN29

I also wish to hand up a copy for completeness to go behind tab 8 a letter from the CEPU to Telstra. It was missed out of the bundle of documents. If I could do that now and I will give the parties each a copy. Thank you. The letter is dated 26 February 2003 and it demonstrates that union's agreement to the terms of the agreement.

PN30

THE COMMISSIONER: Thank you. And this is just to go at tab 8.

PN31

MS KENNEDY: Yes, it is.

PN32

THE COMMISSIONER: Thank you.

PN33

MS KENNEDY: Unless the Commission has any questions, it is submitted that there are no reasons set out in section 170LU of the Act why the Commission should refuse to certify the agreements and I commend the agreements to the Commission.

PN34

THE COMMISSIONER: Thanks, Ms Kennedy. Mr Bretag.

PN35

MR BRETAG: Thank you, Commissioner.

PN36

THE COMMISSIONER: I was going to start at the far left, but I will start with you.

PN37

MR BRETAG: There are some who would say I am on the far left, Commissioner. I understand that the Commission has a copy of the statutory declaration of Mr Colin Cooper. Mr Cooper is Divisional President of the Communications Division of the CEPU and is authorised to complete such declarations. The statutory declaration contains copies of the explanatory material distributed by the CEPU, both nationally and by the state branches - or one state branch in particular, and which was relied upon in meetings with members of CEPU and obviously distributed to explain the document.

PN38

The CEPU supports the submissions of Ms Kennedy for Telstra. The CEPU submits that the requirements of the Act regarding certification have been met, and accordingly we further submit that the agreement should now be certified. Unless the Commission has any questions, that would complete the submissions of CEPU in this matter.

PN39

THE COMMISSIONER: Thanks, Mr Bretag. Mr Veenendaal.

PN40

MR VEENENDAAL: Thanks, Commissioner. I wouldn't be moved to make this submission too often, Commissioner, but I have to say that I support - - -

PN41

THE COMMISSIONER: You are in absolute agreement with Telstra.

PN42

MR VEENENDAAL: I support the submissions of Ms Kennedy and we are in total agreement. In respect to the CPSU we rely in terms of the requirements of the Act, particularly section 170LT, on the statutory declaration of Mr Stephen Jones and that is marked A4 in the folder, Commissioner.

PN43

THE COMMISSIONER: Yes.

PN44

MR VEENENDAAL: That concludes my submissions.

PN45

THE COMMISSIONER: Thank you. Ms Lovett.

PN46

MS LOVETT: Commissioner, POAV and APESMA rely on the statutory declarations of Brian Nadenbousch filed with the folder yesterday. We support the application and submit that it be certified. Thank you.

PN47

THE COMMISSIONER: Thank you.

PN48

This is an application for the certification of an agreement to be known as the Infrastructure Services Enterprise Agreement 2002-2005. I have read the statutory declarations of Brian Stapleton, Colin Cooper, Bruce Nadenbousch and Stephen Jones. I am satisfied that the agreement complies with the provisions of the Workplace Relations Act and I will certify the agreement. The agreement will be certified from today and it shall operate in accordance with its terms.

PN49

The matter is adjourned sine die.

ADJOURNED INDEFINITELY [4.25pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #K1 FOLDER CONTAINING ALL MATERIALS PN28