C2002/5766, Transcript of Proceedings [2003] AIRCTrans 5 (6 January 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 VT1117
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2002/5766

CPSU, THE COMMUNITY AND PUBLIC
SECTOR UNION

and

TELETECH INTERNATIONAL

Application under section 170GB of the Act
for orders where employer fails to consult
unions concerning terminations

MELBOURNE

9.38 AM, FRIDAY, 13 DECEMBER 2002

Continued from 5.12.02

THIS MATTER WAS CONDUCTED BY VIDEO CONFERENCE
AND RECORDED IN MELBOURNE

PN202

THE COMMISSIONER: Who wishes to report? Ms Ferrier, what has been the position since we last sat?

PN203

MS FERRIER: Well, since we last met, there has been further discussion and consultation undertaken with the union. Both myself and Ms Gulleford, as other representative of Teletech, and Ms Drummond were involved in those discussions. I would submit that they were frank and open discussions, and were well worth having. And subsequent to that, we have written to the CPSU and, sort of, outlined the various ways in which we had sought to mitigate the effect of any terminations of employment - or to avert, I should say, any terminations of employment, Commissioner, given a significant amount of information about what Teletech have done to date and what, you know, it will continue to do.

PN204

We understand, or it is our understanding that there is one issue between the parties. That is an issue in relation to payment of moneys, and it is not an issue that my client is able to give a final position on at this stage. The claim, for want of a better word, is a substantial monetary claim, and it will also be influenced by the degree of uptake on alternative positions which Teletech have offered in the last couple of days to the employees on fixed term contracts. So we are not in a position to give a final answer on that yet, but what we would say is that the consultation which is the purpose of this action being brought, has been undertaken and will be continuing through the process, notwithstanding our jurisdictional objections which we still have.

PN205

THE COMMISSIONER: Yes.

PN206

MS FERRIER: But they have been effectively shelved for the moment.

PN207

THE COMMISSIONER: Thank you. Ms Drummond - I am sorry, Ms Cooper.

PN208

MS COOPER: Yes, there have been discussions between the parties. Mr Mark O'Neil was the Human Resources Manager before Teletech was involved in those discussions and I think, from what I have been told, those discussions were quite productive. We did send a letter to the Commission and also a copy to Teletech saying that today we thought might be useful to have some conciliation to resolve some of those outstanding concerns. Now, I note though Mark O'Neil isn't here today. Ms Drummond did speak to him yesterday and he said he was going to try and be here.

PN209

I am not sure what the employer's attitude is to conciliation in respect of those outstanding matters. But, assuming perhaps that that is not going to take place today, representations have been made that some of the redundancies have been averted but, as I understand, none have actually been averted.

PN210

There has been ten part time positions that have been offered, but those employees whose employment ceased on 8 December have left work, and those employees who are due to leave today will also be leaving and handing in their keys today. So as far as the union is aware, despite the representations as to these other roles, these employees have still lost their jobs and are still losing their jobs. So perhaps we could have some further advice from the employer as to exactly who perhaps is being put in those positions, and will not be losing their jobs or who might be returning to work.

PN211

We would also seek that the employer give some undertaking as to when these further discussions might be held. There is some urgency, of course, to the matter because, as I say, people have already left employment, and others are leaving today. And also perhaps some indication of when they are going to make up their mind as to whether or not they will be offering any redundancy or severance pay because the union will then, of course, have to take whatever action might be needed if they are refusing to make those severance payments. If the Commission pleases.

PN212

THE COMMISSIONER: Thank you. Now, Ms Ferrier, you have heard all of that.

PN213

MS FERRIER: Yes, Commissioner. Perhaps if I could just clarify in relation to persons - I think the term is, finishing up on either 8 or 13 December. Any employees, on my instructions, who are being paid through but are not working through to the expiry of their contract on 30 December, has been contacted in relation to part time fixed term positions which are becoming available in another area of Teletech. To the extent that any persons haven't been contacted, or who have been unable to be contacted, and if the union wanted to avert us to those people, then we would be very pleased to have that assistance in contacting them. In relation to conciliation - - -

PN214

THE COMMISSIONER: Could I just ask you to pause. Do I understand your position to be that these persons aren't terminated, they are just not required to present for duty until - and then at the expiration of their contract, they - - -

PN215

MS FERRIER: Their contract is expired.

PN216

THE COMMISSIONER: It comes to an end - - -

PN217

MS FERRIER: Yes.

PN218

THE COMMISSIONER: - - - is the argument.

PN219

MS FERRIER: That is my instructions, Commissioner.

PN220

THE COMMISSIONER: So they are still employed?

PN221

MS FERRIER: Yes.

PN222

THE COMMISSIONER: They are just not being required to attend for duty.

PN223

MS FERRIER: That is right.

PN224

THE COMMISSIONER: I understand. Yes.

PN225

MS FERRIER: Now, in relation to conciliation on payment of redundancy or severance payments, and in relation to the proposals for conciliation to take place today, as I said, we have taken on board that request for payment of moneys to the employees on fixed term contracts. A final decision in that regard has not been made at this time. We also say that in relation to conciliation as to the payment of moneys by the Commission at this time, we say it is really pushing the envelope a little bit far in the context of this application. Really the purpose of section 170GA, on my understanding, is to ensure or to provide a remedy where consultation doesn't occur, or consultation in good faith doesn't occur. I don't think that there is any claim by the union that there has been a failure to consult.

PN226

As I said earlier, Commissioner, we did have some jurisdictional objections in relation to this matter. We put those aside for the time being because we felt that dialogue with the union was the preferable course to take rather than a legal jurisdictional fight. However, if it is the intention of the union to push that, to push the application that little bit further in terms of trying to speed up or force a particular outcome, then it may well be that that jurisdictional objection has to be brought back into play. We are certainly not trying to avoid any obligation to consult with the union, and certainly be in contact with the union when decisions have been made in relation to payment and, you know, further discussions no doubt will occur.

PN227

At this stage we say that it is a little bit premature, and also it is not really an appropriate use of the action that has been brought before you today. Those are our submissions in that regard, Commissioner.

PN228

THE COMMISSIONER: Thanks, Ms Ferrier. Ms Cooper.

PN229

MS COOPER: In relation to the use of conciliation not being a proper way of bringing the matter before you - - -

PN230

THE COMMISSIONER: I think it is put in this context, that if there is no jurisdiction, which is the employer's position, then conciliation does not arise.

PN231

MS COOPER: Well, we haven't really determined that point.

PN232

THE COMMISSIONER: No.

PN233

MS COOPER: Perhaps I had better go back to it, and go back to the letter that started these proceedings which was the letter - and I think it formed part of the papers, and I quoted it last time, that says:

PN234

The closure of the Telstra direct program will be effective at December 8, 2002, for sales employees, and December 13, 2002, for sales support employees. This letter is to provide you with a formal notice that, unless a suitable alternative role is found internally within this period, your role will be redundant as at 13 December.

PN235

Now the employer is saying that these contracts are expiring by effluxion of time and in accordance with agreement with the employees. But the fact of the matter is there is a letter before you that would indicate otherwise, and that is the basis of our argument that jurisdiction does exist because these are not fixed term - - -

PN236

THE COMMISSIONER: Yes, I understand.

PN237

MS COOPER: - - - and they are being terminated prior to the end of their normal period.

PN238

THE COMMISSIONER: What I will do is this, I have heard two things. The first is that contracts of employment continue to exist until 30 December. The second thing I have heard is that the employer wishes to continue to consult. So I am going to again adjourn one further - make one further adjournment until 10.30 on 17 December, on this occasion in Sydney. I will make video conferencing facilities available again, if that is your wish. But at that stage we will either have to have some understanding of the future progress of the matter, or we will have to deal with the application.

PN239

MS FERRIER: Thank you, Commissioner.

PN240

THE COMMISSIONER: Yes. Less there be any doubt, I will be in Sydney that day. So we will reverse it on the next occasion. Now, those two - my understanding is correct, isn't it, Ms Ferrier, that contracts of employment continue and that you still wish to continue discussing the matters with the union?

PN241

MS FERRIER: Yes, Commissioner.

PN242

THE COMMISSIONER: Thank you. The matter is adjourned until 10.30 on the 17th in Sydney.

ADJOURNED UNTIL TUESDAY, 17 DECEMBER 2002 [9.50am]