C2002/2797, Transcript of Proceedings [2003] AIRCTrans 2177 (6 June 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2002/2797
C2002/3813
C2002/3816
C2002/4653
C2002/3886

COMMUNITY AND PUBLIC SECTOR UNION

and

JULIA ROSS PTY LIMITED and OTHERS

Notification pursuant to section 99 of the Act
of a dispute re log of claims - wages and
working conditions in the Telecommunications
industry

LABOUR HIRE (TELSTRA) AWARD 2002

Application pursuant to section 111(1)(b) of
the Act by the Community and Public Sector
Union for making of an award not by consent

COMMUNITY AND PUBLIC SECTOR UNION

and

ADECCO PROJECTS PTY LIMITED and OTHERS

Notification pursuant to section 99 of the ACt
of a dispute re log of claims - wages and
conditions

A. KING and OTHERS

and

REGENT PERSONNEL PTY LIMITED

Notification pursuant to section 99 of the Act
of a dispute re log of claims - wages and
conditions

COMMUNITY AND PUBLIC SECTOR UNION

and

WESTAFF ON LOCATION and OTHERS

Notification pursuant to section 99 of the Act
of a dispute re log of claims

SYDNEY

2.40 PM, WEDNESDAY, 21 MAY 2003

Continued from 18.11.02 in Melbourne

PN579

THE COMMISSIONER: I have listed at the same time a matter in relation to Dorothy Farmer that was before me in Melbourne but I propose to deal with the labour hire matter first and then I will deal with the Dorothy Farmer matter. Now, who wishes to report, yes, Mr O'Grady?

PN580

MR O'GRADY: Commissioner, I am here for the Dorothy Farmer matter. So I will remain quiet. I am sure you'll be very grateful for that, Commissioner.

PN581

THE COMMISSIONER: No, that's all right, Mr O'Grady. If something excites you please feel free to rise. Mr Jones?

PN582

MR JONES: Two matters, Commissioner. I am today joined by MR A. RICH of CPSU. Mr Hargreaves and myself have had a brief conversation and with leave of the Commission, we would appreciate if we were able to go into conference for a few moments.

PN583

THE COMMISSIONER: Yes, of course. Are you content for Mr O'Grady to remain.

PN584

MR JONES: I have no objections.

PN585

THE COMMISSIONER: Very well, we will adjourn into conference briefly.

OFF THE RECORD

RESUMED [2.55pm]

PN586

THE COMMISSIONER: Yes, Mr Hargreaves?

PN587

MR HARGREAVES: Commissioner, just for the purposes of the record I might announce the companies that I appear in these proceedings for.

PN588

THE COMMISSIONER: Yes.

PN589

MR HARGREAVES: Firstly, Westaff Australia Pty Limited, Addeco Australia Pty Limited, Manpower Services Australia Pty Limited, Choice HR Pty Limited, DFP Recruitment Services Pty Limited, Julia Ross Recruitment Pty Limited, Kelly Services Australia Limited. Sorry, I will just make a correction in respect of one of those, Commissioner, it was Julia Ross Recruitment Limited.

PN590

THE COMMISSIONER: Yes.

PN591

MR HARGREAVES: Kelly Services Australia Limited, Manpower Services Australia Pty Limited, Prime Commercial Placements Pty Limited, Prime Contact Centre Solutions Pty Limited, Prime Placements Pty Limited, Regent Personnel Pty Limited, Skilled Communications Personnel Pty Limited, Trinity People Pty Limited and Westaff Australia Pty Limited. I also announce an appearance that I haven't announced before in respect of Hudson Global Resources Australia Pty Limited trading as TMP Worldwide E Resourcing and Hudson Global Resources Newcastle Pty Limited trading as TMP Worldwide Resourcing E Resourcing Newcastle Pty Limited.

PN592

THE COMMISSIONER: Now, there is TMP Worldwide Pty Limited, TMP Executive Search - these are who has been served.

PN593

MR HARGREAVES: Yes.

PN594

THE COMMISSIONER: TMP E Resourcing Pty Limited, TMP Worldwide E Resourcing Industrial Services Pty Limited, Industrial Solutions Newcastle and Office Services. Are the two companies that you have just announced, the employers and those TMP Worldwide, however described are trading names for those parties.

PN595

MR HARGREAVES: Yes, Commissioner, the two companies that I have just announced an appearance for are the employing entities in Australia as it affects this business.

PN596

THE COMMISSIONER: Thank you. You don't appear for Ace Communications?

PN597

MR HARGREAVES: I don't appear for Ace, nor do I appear for Telecommunications Services Australia.

PN598

THE COMMISSIONER: Yes.

PN599

MR HARGREAVES: If the Commissioner pleases.

PN600

THE COMMISSIONER: Yes, Mr Jones.

PN601

MR JONES: If the Commission pleases. I have provided the Commission with a draft finding of dispute.

PN602

THE COMMISSIONER: Yes.

PN603

MR JONES: The material that I wish to rely on Commissioner, in seeking to persuade the Commission to make a finding in terms of that draft is that which has been included in the letters of demand which are listed at paragraph three of the finding of dispute and each of those letters of demand in respect of each of the companies included in our finding of dispute have had the alleged disputes notified in accordance with the rules of the Commission and we seek to rely on the statements of Mr Adrian O'Connell of 9 September 2002, of myself of 29 July 2002 and again of myself on 28 May 2002.

PN604

That is the material that we seek to rely on, both the letters of demands, the logs of claims which have been filed in accordance with the rules of the Commission together with the statements of service. They are included with that material.

PN605

THE COMMISSIONER: Yes.

PN606

MR JONES: On the basis of that material, we make these submissions, Commissioner. The CPSU has authorised myself to serve letters of demand attached to which are logs of claims upon each of the respondent employers. Each of the respondent employers has received those letters of demand and logs of claims and we advise the Commission that each of those employers have either failed to accede to those demands or have not responded to the demands within the time periods contained within the letters of demand. We submit that the letters of demand served upon the companies in respect of the companies, each of the companies both jointly and severally conduct a business which operates in the telecommunications industry or part of a business which operates in the telecommunications industry beyond the borders of any one state and that on the basis of the proper authorisation the fact that demands have competently been served, we ask the Commission to make a finding of dispute in accordance with our draft finding.

PN607

THE COMMISSIONER: And you accept that demand 23 can be severable.

PN608

MR JONES: Commissioner, about demand 23, we say that demand 23 is competent. It is capable of being made to the extent - - -

PN609

THE COMMISSIONER: That I don't do it, it's severable.

PN610

MR JONES: We say it is a severable demand.

PN611

THE COMMISSIONER: Yes, thank you. Mr Hargreaves? Demand 23 being union preference.

PN612

MR HARGREAVES: Commissioner, the companies that I represent today are, with the exception of Skilled Communications Personnel Pty Limited do not object to a finding of dispute in the terms sought. If the Commission pleases.

PN613

THE COMMISSIONER: Yes. What do you seek in relation to Skilled Communications?

PN614

MR HARGREAVES: In relation to Skilled Communications Personnel Pty Limited, Commissioner, we at this stage reserve our position in respect of opposing a finding of dispute. Having said that, there will be further discussions between the company and the CPSU and subsequent to those discussions the parties will be in a clearer position as to whether or not that opposition to a dispute will be sustained.

PN615

THE COMMISSIONER: Thank you. Anything else you wish to say Mr Jones?

PN616

MR JONES: We are content to rest, Commissioner.

PN617

THE COMMISSIONER: Thank you. Pursuant to section 101 of the Act, I find there exists an industrial dispute between on the one hand, the CPSU, the Community and Public Sector Union and on the other hand a number of employers to whom demands were made with the exception at this stage of Skilled Communications Personnel Pty Limited. In relation to that company I shall adjourn these proceedings for one month. The subject matter of the dispute are the matters contained within the log with the exception of demand 23 and attached to the letters of demand dated 19 April, 3 May, 20 May, 19 July and 6 August. The dispute extends beyond the limits of any one state. I will formally record my finding and I adjourn the parties into conference. We will just go off the record.

OFF THE RECORD

RESUMED [3.05pm]

PN618

THE COMMISSIONER: I understand as a result of some discussion there is a position that may be able to be put, Mr Jones.

PN619

MR JONES: If I may Commissioner, just have a moment here. Commissioner, during the course that this matter has been before the Commission there has been a number of drafts prepared of a proposed order to put before the Commission. Indeed some of those have been provided to your associate. I am not sure whether the most current draft has been provided so I have a copy of a proposed order which I can provide.

PN620

THE COMMISSIONER: Yes, I will mark that CPSU3.

EXHIBIT #CPSU3 DRAFT ORDER

PN621

MR JONES: Commissioner, CPSU3 is a composed award to be known as the Telecommunications Services (Customer Contact, Clerical and Administrative) Labour Hire Roping-In Award 2003. The Award, as the title suggests, takes the form of a roping-in award to the Award made by yourself and recorded as AW819699, an Award made in November 2002, known as the Telecommunication Services Industry Award. The CPSU seeks the making of this Award binding upon each of the employers who are respondents to the dispute which has been found by yourself.

PN622

I'll address the Commission on two matters within the Award. I understand that in our discussions with Mr Hargreaves, on behalf of the clients respondent to this matter, that there is no contention in respect of - between the parties in respect of the parties bound to the Award, the application of the Award, and the manner in which the parties are bound to this Award. There are three different classes of employers who are bound - who would be bound to this Award differently in relation to the draft order.

PN623

The first of those are contained - are listed in schedule 8 of the Award, and these companies would be bound by the Award to the extent that they are providing employees to Telstra Corporation or any of its known subsidiaries, and the Commission can see that there are three companies who fall within that group. In Schedule B of the CPSU3, the Commission will see that it is proposed that the companies - the two companies listed there by Addeco Australia and Manpower would be bound by the Award to the extent that they are providing employees to Telstra or any of its known subsidiaries or any other telecommunications service provider in the state of Victoria.

PN624

In Schedule C of the proposed Award, the Commission will see the list of companies for whom it is proposed that the Award is binding, to the extent that they are providing labour hire employees to Telstra or any of its subsidiaries or any other company in the Telecommunication Services Industry. CPSU understands that that is a consent position of the parties. CPSU asks the Commission to make this Award, with effect as of today, and in making that submission, we ask the Commission to note this, that that is not a position by consent. However, we submit that it's an appropriate order for the Commission to make.

PN625

We note that whilst a roping-in award is a stand-alone award and the Commission is required to ensure that the Award conforms with both the statutory provisions and the wage-fixing principles, we do draw the Commission's attention to the decision that you made in making the Telecommunication Services Industry Award, and in particular, paragraph 6 of that Award, where you say - that decision where you say that you've examined the Award and that you say that it is - that you're satisfied that the Award complies with the provisions and the Act and the wage-fixing principles.

PN626

Given that the proposed Award at CPSU3 would create an award based on the Telecommunication Services Industry Award, we submit that the Award is appropriate, that it complies with both the statutory provisions and the wage-fixing principles, and it's an appropriate award to be made for the employees of this class. And on that basis we would press the Commission make the Award with effect as of today. With respect to the scope of the Award, Commissioner, I wish to table one further document before I rest from that. It is a document -

PN627

THE COMMISSIONER: CPSU4 will be a letter to the National Secretary of the CEPU from Mr Jones.

EXHIBIT #CPSU4 LETTER TO THE NATIONAL SECRETARY OF THE CEPU FROM MR JONES

PN628

MR JONES: Commissioner, you'll be aware that in these matters and related proceedings by the CEPU that the CEPU has intervened in these proceedings and taken an active role in related proceedings and there have been ongoing discussions between ourselves in respect of demarcation issues. The letter to Mr Tighe from myself, that has been marked as CPSU4, deals with the CPSUs understanding of the scope of the Award, in respect of certain functions that are performed within Telstra and have been traditionally been covered by the CEPU and bound by CEPU Awards.

PN629

We ask that the Commission take note of that and we have nothing more to say on that. Those are our submissions, Commissioner.

PN630

THE COMMISSIONER: Thank you. Mr Bryant?

PN631

MR BRYANT: Commissioner, I refer to the correspondence that Mr Jones has been referring to, CPSU4. Mr Jones is correct. There has been some discussions between the two organisations and that certainly, in substantial part, reflects our concerns, albeit there's some - nobody gets everything they want out of these processes and there are other processes that impact back on this issue that are being discussed elsewhere, but - so in relation to this matter, that we're happy with the substance of the correspondence from Mr Jones to the CEPU, and I would say, except for one slight error in the second paragraph - I take you to the end of the first line of that, "The jobs are designed estimated."

PN632

It should be "designed and estimated." It's just a - I don't think it affects the intention at all, but just for the record it's worthwhile making that slight - - -

PN633

THE COMMISSIONER: Thank you.

PN634

MR BRYANT: - - - I have nothing further to say.

PN635

THE COMMISSIONER: Thank you. Are you content with that amendment, Mr Jones?

PN636

MR JONES: Yes, Commissioner.

PN637

THE COMMISSIONER: Thank you. Mr Hargreaves?

PN638

MR HARGREAVES: Commissioner, personally, I concur with the submissions of Mr Jones in relation to the making of this Award on behalf of the companies that I represent with the exception of School Communications Proprietary Limited.

PN639

THE COMMISSIONER: I can't do it. I've adjourned their finding of dispute.

PN640

MR HARGREAVES: Yes. Just so that there's no lack of understanding about that, Commissioner. The companies that I represent, with that exception, do not object to the Award being made, in terms of CPSU3, however with a couple of exceptions Mr Jones has brought the Commission's attention to, that there are some issues where the parties are not in agreement. And in relation to that, I draw the Commission's attention to clause 2.1, where our submission is that the Award should come into force from the first pay period, to commence on or after today's date.

PN641

But in relation to the issue of part V of the Award, dealing with wages and related matters, and in relation to part VI, dealing with hours of work, breaks, over-time, shift-work, and weekend work, with the exception of sub-clauses 22.1 and 22.5, that those provisions should not take effect until 1 October 2003. And we say that, Commissioner, because at this point in time, the parties - or the companies that I represent have in good faith entered into arrangements with Telstra and supplied labour to that organisation and have commercial arrangements in place.

PN642

Those companies were not in a position to have any knowledge of where this matter may go at the time of entering into those contracts. The parties that I represent would be significantly disadvantaged if the date of effect was as from the making of this Award. So it's out submission, Commissioner, that, as I have indicated, that those provisions should take effect from 1 October 2003. In relation to clause 2.3 and 2.4 of CPSU3, Commissioner, those clauses are not clauses which we consent to.

PN643

We, personally, have objections to those clauses, in that they impose onerous provisions on the parties that I represent, and, in fact, in our submission, are not necessary. It is our submission that clauses 2.3 and 2.4 should be deleted from the draft order. Commissioner, if the Commission was of a mind to not accept our position in relation to that, and we strongly submit that you should, but if you, in the alternative, if you were not of a mind to accept our position in relation to that, our alternate submission is that clause 2.3 should be amended to read, in the first line, that the words, "Prior to 1 October 2003" be inserted after the word "that." So it would now read that:

PN644

This Award shall not apply to any employer bound by this Award in the event that prior to 1 October 2003 it makes an application for a Certified Agreement or an Australian Work-Place Agreement.

PN645

That's our alternate submission, Commissioner. Those are the issues where the parties are not in agreement, and in all other aspects the companies that I represent do not object to the making of the award. If the Commission pleases.

PN646

THE COMMISSIONER: Thank you. Mr Jones?

PN647

MR JONES: Commissioner, we press our submissions - sorry, we repeat our submissions; we press our application, and in respect of the issue of the submission that Mr Hargreaves had made in relation to costs, we say this: that it would be normal in these proceedings where an employer raises issue about the economic impact of the making of safety net award, to lead evidence as to the cost impact, and that's consistent with the wage-fixing principles. Having said that, we acknowledge that in the absence of that material, the Commission is able to take note of submissions made by parties from the Bar table, and make appropriate findings upon that.

PN648

However, we would make this submission in relation to that, and that is that, if in other proceedings it is found that in relation to a particular employer or a part of a particular employer, any finding that the Commission may make or any assumption that the Commission may have made in these proceedings is not sustained, then those other proceedings should be determined on the basis of any evidence or testing of the evidence that is before the Commission at that point in time. Having made those submissions, we are content to rely on what we've put to the Commission today.

PN649

THE COMMISSIONER: Thank you. Arising from the findings of dispute made by the Commission, the parties have conferred and have reached significant agreement in relation to the making of an award - the award to be known as the Telecommunications Service Industry (Customer Contact) Clerical and Administrative - I'm sorry - Customer Contact, Clerical and Administrative) Labour Hire Roping In Award 2003.

PN650

There are two matters upon which the parties do not agree. The first goes to the operative date of the award. The CPSU, for its part, argues that the entire award should come into effect in the first full pay period to commence on or after today. The AIG representing the majority, or nearly all, of the respondents to the award argue that the award can come into effect in part, but that parts 5, part 6 - with the exception in part 6 of clause 22.1 and 22.5 - should not come into operation. The reason argued for that is the nature and structure of the business of the employer, and the impact on the employer of an early operative date.

PN651

In addition, AIG argue that clause 22.3 of the proposed award, and 2.4, also not apply. Those clauses, 2.3 and 2.4, were designed to overcome a problem identified by his Honour, Vice President Lawler, when he was asked to certify an agreement based upon an interim award in another matter, where it was found that the award could be used for the purposes of the no-disadvantage test. In the event that I agree with the CPSU that the award operates from today, those clauses would have no work to do. In the event that I agree that the operative date should be 1 October, those clauses may have some work to do.

PN652

To begin, I am prepared to accept the submission made by the AIG and make the award operative from today in respect of certain clauses, but in relation to part 5 and part 6, with the exception of 22.1 and clause 22.5, they shall not come into operation until the first full pay period to commence on or after 1 October. That now presents me with the dilemma as to what to do with 22 point - clause 2.3 and 2.4. The issue raised by Vice President Lawler is sufficiently serious for me to put into the award a clause that ensures that no party bound by this award can use an award which is not complete for the purposes of the no-disadvantage test, but it shouldn't remain forever, and I propose to do two things.

PN653

I propose, firstly, to include, at this stage, the proposal - the alternative proposal suggested by AIG, and that is to identify that the clause would be inoperative following 1 October 2003. But secondly, I propose to review the matter again in one month when I re-list the matter in relation to Skilled Communications, which will give Mr Hargreaves an opportunity to consult with the members that he represents to see whether or not there is any work for those clauses, and whether there should be any concern on the part of the Commission as to the operation of those clauses and the no-disadvantage test.

PN654

So for the interim period, those clauses will appear with the alternative position suggested by Mr Hargreaves, but I make it clear that I'm prepared to accept argument - or hear argument, rather - as to whether or not those clauses should further survive beyond the one month that it takes me to re-list the matter. I will re-list the matter on Monday, 16 June, in Sydney at 10.30. I will reduce my decision to writing, and I thank the parties for their efforts in achieving what turned out to be a significant element of agreement.

ADJOURNED UNTIL MONDAY, 16 JUNE 2003 [3.26pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CPSU3 DRAFT ORDER PN621
EXHIBIT #CPSU4 LETTER TO THE NATIONAL SECRETARY OF THE CEPU FROM MR JONES PN628