C2003/2115, Transcript of Proceedings [2003] AIRCTrans 5085 (13 November 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2003/2115

TELECOMMUNICATIONS SERVICES INDUSTRY AWARD 2002

Application pursuant to section 111(1)(b)
of the Act by Virgin Mobile (Australia)
Pty Limited re roping in award No. 4

C 2003/5138

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL
AND SERVICES UNION

and

VIRGIN MOBILE (AUSTRALIA) PTY LIMITED

Notification pursuant to section 99 of the Act
of an industrial dispute re wages and conditions
of employment

C2003/5398

TELECOMMUNICATIONS SERVICES INDUSTRY AWARD 2002

Application under section 111(1)(b) of the Act
by Australian Municipal, Administrative, Clerical
and Services Union re establishment of appropriate award
coverage to provide for a safety net of fair minimum
wages and conditions of employment

SYDNEY

10.30 AM, TUESDAY, 7 OCTOBER 2003

Continued from 27.8.03

PN291

THE COMMISSIONER: These matters have been before me for a long period of time and it appears to me that conciliation is at an end. Is there anybody that's not of that view before I formally find that conciliation is at an end? I have had numerous discussions with the parties and there have been submissions both in public hearing and I propose to invite the parties to make submissions on a matter which I'm minded to do in resolution of this dispute. I'd want to hear from the parties as to why I shouldn't resolve these matters by making an award which binds Virgin Mobile and the ASU. The award would not be a roping in award but a stand alone award that would contain all the provisions that I think the parties have virtually agreed upon.

PN292

There's very little that separates them in relation to the actual terms of the award. In relation to the CPSU, I would refrain from further hearing that part of the dispute dealing with Virgin Mobile for a period of two years. I'd refrain from hearing that pursuant to section 111(1)(g) in that I think it would provide stability in the operation of the award for there to be one union and one employer. As I said, that's a proposition that I asked the parties to address me on and I will adjourn for twenty minutes to give them an opportunity to consider that proposal. The matter is adjourned for twenty minutes.

SHORT ADJOURNMENT [11.04am]

RESUMES [11.30am]

PN293

THE COMMISSIONER: Well there's no lectern, so I don't know who wants to go first.

PN294

MR HARGRAVES: It seems that we've made a decision that I should go first Commissioner.

PN295

THE COMMISSIONER: Yes, Mr Hargraves.

PN296

MR HARGRAVES: Commissioner, I've had the opportunity to get in some instructions and also conferring with the other parties during the adjournment. Commissioner, for the company's part we acknowledge that the proposition put forward by the Commission would solve part of the problems that are included in this matter. It would certainly provide an appropriate safety net of wages and conditions for employees of Virgin Mobile employees and it would also seem to resolve what has been the primary issue in this matter which has been the matter of union coverage.

PN297

However, our concerns in relation to that proposition are that what our application indeed seeks is an appropriate safety net in the form of the TSI Award and that is the same safety net that applies to all of the competitors of Virgin Mobile and whilst we acknowledge that in the short term the same result might be achieved if the proposed Virgin Mobile award, if I can call it that - if it was made in identical terms to the TSI award we acknowledge that in the short term the same objective would be achieved. However, our concern goes to further down the track, that the possibility of variations occurring to the Virgin Mobile award that might be inconsistent with that of the TSI award and whilst we acknowledge that that's a two way street, our position all along has been that Virgin Mobile should have the same safety net as its competitors.

PN298

That is essentially the reasons in response to the proposition that has been put by the Commission. The Commission's reasons.

PN299

THE COMMISSIONER: Thank you. Mr Nucifora.

PN300

MR NUCIFORA: Thank you Commissioner. The ASU likewise, in terms of the proposition that you've put earlier today, Commissioner, would have concerns with a enterprise award in the context of this industry, that is the telecommunications industry. In many other contexts industrially, in this situation, our union might have been quite happy, indeed quite happy to have an enterprise award but most often when you have a national industry like this, one that's been identified by all the industrial parties in particular the unions involved, the CPSU and the CEPU and AI group on behalf of a number of employers that were parties to the dispute, particularly the CPSU and, of course, the CEPU when the TSI Award was made.

PN301

All of the parties who have identified that as the industry, and in that context the ASU believes that there ought be support for the industry award. Our union wishes to press the application that we have lodged before you in C No 2003/5398 and that is for the making of a roping in award. It is only different fundamentally from the AIGs application that Mr Hargraves has referred you to and that it includes the CPSU and the AI group as a party and it doesn't include the ASU as a party. That is the only difference between ourselves. Commissioner, in terms of the question the proposition that you've put, the ASU wishes to refer to an authority of the Full Bench and print no. PR907235 and I table that authority.

PN302

THE COMMISSIONER: Yes. Thank you.

PN303

MR NUCIFORA: Sorry that was PR907235. Commissioner that was the GNK O'Connor. I wasn't going to tender that as an exhibit, just table that as a Section 107 reference to a Full Bench in relation to GNK O'Connor was a Section 111B application from the making of an award. Commissioner in that I'm actually not - - -

PN304

THE COMMISSIONER: Certainly not welcomed by your colleagues in the meat union.

PN305

MR NUCIFORA: Actually I wasn't going to refer to the decision itself. I was unable to get the authority that I was actually seeking from this Commission but I'd refer you to page 7 of 31, and I apologise for the landscape copying of this decision. If I could refer you to what's referred to in paragraph 10, but 66 there under Roping-in Award on page 7 of the copy here, it's actually part of the submissions of the employer counsel Mr Parry, and it's the authority there that I wish to refer you to and apologise I wasn't actually able to get that particular decision, but it mentions there if I might quote from that:

PN306

The process of making roping-in awards is well established in the Commission the rationale is to facilitate uniformity within an industry and promote consistent and fair terms of industrial regulation. It is generally desirable that the minimum safety net be uniform across an industry this would encourage a fair bargaining regime for employers and employees.

PN307

Sorry the authority there is as an example as the Deputy President now Senior Deputy President Harrison in Aardvark Security v TWU print number N9825 on 27 March 1997. The proposition that is put is for uniform conditions that is in an enterprise if you like award, between Virgin and the ASU but we have concerns that in an industry like this which is one that has already been to date recognised as a national industry, that is the Telecommunications Services industry, that it in fact would set a precedent and in fact over time there's a likelihood of some break in that uniformity that we have in an industry award.

PN308

I think it's important and as I mentioned earlier Commissioner that we are talking about the context of this industry. It is not one where of course we have enterprise awards and our unit has and I'm sure the other units have too in other industries, but the context of this award, and I've mentioned another award that's of course very similar to this award and that's the newly created Contract Call Centre Award, that has been a focus at least from the unions and I'm sure it may not be all the employers in that industry at this point but certainly the employers in this industry do have one industry award and of course on top of that, there is the ability to have enterprise bargaining agreements to provide for enterprise specific conditions over and above the award.

PN309

But the safety net is the same and we'd have some grave concerns that the emphasis that's referred to in that quote from that decision as part of the submissions of the employer in this matter, really is one that could be lost if there is a precedent set for an enterprise based award.

PN310

THE COMMISSIONER: Why would it be lost when you both agree?

PN311

MR NUCIFORA: Both ourselves and the employer?

PN312

THE COMMISSIONER: Yes, you both agree that you should maintain a strong relationship with the terms and conditions of the TSI Award. Now if you both agree to that where should I be concerned that the safety net might be jeopardised for the industry?

PN313

MR NUCIFORA: Yes Commissioner we think today we can agree.

PN314

THE COMMISSIONER: But you might fall out of love tomorrow?

PN315

MR NUCIFORA: Yes and we may become even more militant than we have been in the past and that may not be to the employer's liking.

PN316

THE COMMISSIONER: We in a plural sense and not in a singular sense.

PN317

MR NUCIFORA: Well the ASU, but it's not our intention of course, we don't say that we should be isolated in award from the rest of the industry, that does give us some concern. I think what's more to the point is that you have all the parties here actually promoting the industry award, although with all due respect we acknowledge the proposition that you've put as being an important one, and particularly our union would because we have supported enterprise awards elsewhere as better than nothing, but we would say Commissioner that all the parties here are at least agreed that there should be a strong industry award.

PN318

We are not aware the most recent submissions by Mr Hargraves that the company would have more stable industrial relations in the workplace by having an enterprise award, they may, but we don't know that and of course personalities change over time and all of a sudden that enterprise award on the one hand we might argue we might try to improve the safety net over time, but on the other hand we may in fact and this describes what's happened elsewhere of course, we may fall behind the industry and that would be of great concern to our members and of course our union on their behalf.

PN319

So Commissioner I really only sought to make, as Mr Hargraves has done, submissions on the proposition that you've put. We would not say that it's a wrong proposition where really it is a good proposition but in the wrong context, in the context of this industry, if the Commission pleases.

PN320

THE COMMISSIONER: Thanks very much. Ms Andelman.

PN321

MS ANDELMAN: In regard to your proposition of an enterprise award containing all the provisions as in the Telecommunications Service Industry Award, CPSUs position is that we press our application that was made by us on 13 August, which is similar in the terms that was proposed but with a vital difference which includes CPSU as a party to that award. The reason we continue to make that application is that there may be and based on the submissions made by Mr Nucifora and Mr Hargraves, there would be synergies between the TSI Award and the Virgin Mobile Award, and as CPSU is a party to the TSI Award we would seek to be able to have a part or at least be in the know about any proposed amendments or variations to be made to the Virgin Mobile Award.

PN322

What we would be seeking and I'd be interested to hear, I understand that both on transcript and in letters from ASU to Mr Hargraves they have been cc'd to you, and that has been a subject of earlier submissions, there was a discussion about securing ASUs coverage in Virgin Mobile, and securing a safety net that ASU may enforce and have right of entry to the Virgin Mobile site, and it is one site that is being discussed in this application.

PN323

Mr Hargraves made some submissions to that issue while in the Commission on 13 August, where in paragraph 195 that the parties have had discussions to attempt to resolve the matter, and in regard to that it centred on a memorandum of understanding being signed by the parties, which would have seen Virgin Mobile roped into the TSI Award by consent of the parties, but supplemented by an agreement which would have recognised that ASUs ability to continue to represent its members with the company.

PN324

And that's the position we think has got merit because the award first of all, secure ASUs position being able to represent the industrial rights of it's members, and on the other hand recognise the reality and that is that Virgin Mobile is a telecommunications company, that there is a dispute found between CPSU and Virgin Mobile, and that like Virgin Mobile's competitors it is only right and fair that it be a party to the Telecommunications Service Industry Award.

PN325

Thank you, I think they're the submissions.

PN326

THE COMMISSIONER: Thanks very much. Yes, Mr Bryant?

PN327

MR BRYANT: Commissioner, as was alluded to in early discussions, there's been quite some considerable amount of private discussions between the parties over the past few weeks about how we might sort this out and while the CEPU see your proposition as a viable way forward, the CEPU is still attracted to the suggestion, I think that was made perhaps if not on the last occasion the occasion before, from yourself, about a reference award. We believe the reference award mechanism would have been a viable way to sort out some of the issues that are concerning the other parties here, both providing a safety net for the Virgin Mobile workers and protecting the ASU interests. But also at the same time ensuring that the Virgin Mobile award followed the TSI award rather than vice versa.

PN328

However, if need be the way we have to go is via the proposition that you've put to the parties earlier in the day. We are not too upset with that. However, reflecting both our concerns and also the nature of business we are dealing with at Virgin Mobile, the CEPU are labouring under the belief that the award that would cover Virgin Mobile, no matter how it's framed or phrased, would be an award that covers customer contact work and clerical admin work, and obviously not technical work. So it would cover two of the three streams that exist in the TSI award and obviously CEPU would reserve its position if the company were to restructure its operations some time in the future and to adopt a different business model where it may have a technical work force.

PN329

So in summary, I suppose that what the CEPU is saying that we'd prefer the reference award but if the outcome is, as you suggested earlier today, probably not too upset about that. We believe that can be managed and it meets our concerns as have been expressed. I suppose in relation to the issue about who might be parties in the form of the award you have suggested, I note the application of the CPSU issue and I think I'd leave it at that. If the Commissioner pleases.

PN330

THE COMMISSIONER: Any other submissions? Mr Hargraves, do you wish to respond to any of those submissions?

PN331

MR HARGRAVES: The only thing I'd respond to, Commissioner, the submissions of Ms Andelman, where she referred to, I think it was paragraph 195 of the transcript of 13 August this year. Just to clarify that the position there was, is that the company had proposed a solution to this matter which we say would have protected all the parties interests whilst at the same time delivering the outcome in which the company was seeking. And the vehicle for that was through a memorandum of understanding. However, as I think as Ms Andelman indicated, that for a range of reasons that didn't actually proceed. That wasn't an attempt, I should say, also to exclude the CPSU or the CEPU and we didn't have any discussions with those parties only for the reason that if we couldn't secure agreement with the ASU in the first instance, it wouldn't have been necessary to talk to other unions. But it had been our intention to discuss that matter, had it proceeded, with the other unions. I don't have any other further submissions at this stage, Commissioner.

PN332

THE COMMISSIONER: Thank you, very well I'll adjourn for 10 minutes- - -

PN333

MR NUCIFORA: Sorry Commissioner.

PN334

THE COMMISSIONER: Yes, Mr Nucifora?

PN335

MR NUCIFORA: Just briefly, just to reply to Ms Andelman's proposition as Mr Hargraves has. The ASU would be opposed to a memorandum of understanding as proposed by AIG and supported now by the CPSU. We would be opposed to that. We consider that award coverage is, and certainly through a roping in award is the only way to have equal status in terms of Virgin. The other alternative referred to by Mr Bryant in relation to the reference award, I would have to say that we did very seriously consider as one that might have got close to being a common position. Now that was only the case with the unions, it wasn't the case with the employer.

PN336

But it was one, that I think it's important, in all of this there is the underlying current of the political environment, and not one of just we say, of a technical nature necessarily, although we'll go to submissions for that. And that is, is the ASU being an opportunist union here and seeking to become a bigger player in the telecommunications industry, and the advantages of a reference award is that it is out in the open. We are clearly looking after, we haven't in any way prejudiced the industry award. The other unions are not compromised in terms of their status in the industry. And our position is that we have members there at Virgin. Because the reality is we have members elsewhere in the industry and they are quite significant here at Virgin. May not be as significant elsewhere.

PN337

And so the political reality is that we weren't seeking that anything changes. So that's why we seriously considered that option as one being a fair one all round. It's a compromise if you like between the four parties, but at the end of the day that would have required consent from all the parties, and in particular the employer is opposed to that and we would then say that the only option, the only real alternative, or the preferred alternative is of course the roping in award. The one that you have put is one that we would say is not the best alternative, or the preferred outcome, from our union's point of view, or the industry for that matter. If the Commissioner pleases.

PN338

THE COMMISSIONER: Yes, Ms Andelman?

PN339

MS ANDELMAN: Thank you Commissioner. Just one point - - -

PN340

THE COMMISSIONER: Everybody can get a chance to be heard till they are exhausted. I've put a proposition. I'm going to adjourn to consider my decision, but that's why I want to hear it.

PN341

MS ANDELMAN: Just an additional matter why CPSU says that if you do decide to make the award that you have indicated, why CPSU should be a party to that award. And that is that the reason why we are seeking to do that is not to organise Virgin Mobile or be another player in that company, but because of the broader implications for the industry, and all we would be doing is seeking to be involved in that so that our broader industry interests would be protected. I haven't heard the other parties object to CPSU becoming a party to that award if you so decide to do that, and we would be glad to make any kind of assurances if there are concerns from the other parties about there being competition between the unions in the company.

PN342

MR NUCIFORA: Sorry Commissioner, for the record our union would be opposed to the CPSU becoming a party. If they had members in time, and of course this raises the concern about the proposition of the two year wait they might have if they did have members. And we actually say, if they had members they ought be, they already have a dispute findings version, they ought to be a party to the roping in award and in relation to Virgin they should have the same coverage.

PN343

THE COMMISSIONER: Thank you very much.

PN344

MR HARGRAVES: Sorry, Commissioner, Ms Andelman has invited me to comment, I think, in relation to her proposition and again, for the record, should the Commission ultimately decide to go down the track as per your proposition, and we say that that's not the preferred solution to this matter, but if ultimately that's what the Commission decided should occur, we would say the CPSU should not be party to that award. This is a relatively small company. There are not significant number of employees who would be covered by the award and it would be impractical to have two unions as a party to that award. We understand where the CPSU is coming from, but from Virgin Mobile's position that would be the worst case scenario. If the Commissioner pleases.

PN345

THE COMMISSIONER: Thank you. I'll adjourn for 10 minutes and then I'll return and announce my decision.

SHORT ADJOURNMENT [11.55am]

RESUMES [12.08pm]

PN346

THE COMMISSIONER: I have reached a decision in this matter. In resolution of these matters I propose that an award should be made which covers the ASU and Virgin Mobile. The award would be a stand alone award and not a roping in award but it would be in identical terms to the Telecommunications Services Industry Award 2002. Further I propose that pursuant to section 111(1)(g)(iii) of the Workplace Relations Act 1996 I would refrain from further hearing the dispute between CPSU and Virgin Mobile for a period of two years.

PN347

I am anxious to maintain the existing relationship of union coverage at the enterprise whilst at the same time seeking to ensure the demarcation disputes do not arise between CPSU and ASU in either a real or a perceived sense. It's a matter of public interest that demarcation disputes should be avoided. The unions in this industry have taken very positive and active steps to ensure that demarcation disputes do not divert the focus from proper terms and conditions of employment. My proposition was designed to complement those positive steps taken by the unions not to undermine them.

PN348

Now having heard the parties I will make an award binding upon Virgin Mobile and the ASU. The award will be in identical terms to the TSI award as I consider that to be an appropriate benchmark by which to determine a safety net for Virgin Mobile. I agree with the submissions of both Mr Hargraves and Mr Nucifora that the TSI awards should be the industry standard and that Virgin Mobile should be subject to the same safety net of terms and conditions of employment.

PN349

There is no good reason as to why I should depart from the industry safety net award when making this award. As to the future, the parties to the award share the view that this award is the tail not the dog and I expect that approach to continue. It is because of the combination of circumstances that I have adopted this approach in an endeavour to maintain stability.

PN350

Finally and consistent with my approach I will not make the CPSU a party to the award and further I propose to refrain from further hearing the dispute between Virgin Mobile and the CPSU for a period of two years. Now there's one matter that the parties haven't addressed and that's operative date. Mr Hargraves?

PN351

MR HARGRAVES: Commissioner, did the Commission have in mind that one of the parties would be responsible for drafting this award?

PN352

THE COMMISSIONER: That's why I called on you first.

PN353

MR HARGRAVES: Well it would seem to me as though, Commissioner in light of that decision, that an appropriate period of time be given for me to draft that award and submit it to the union parties and of course to the Commission and if there are any dialogue that's necessary that comes out of that draft then that could take place and I would think that the date of effect, sorry, just going back one step, that there perhaps should be a report back in about a month's time.

PN354

I expect that we wouldn't need any more than a month to complete that process and if there were any I think we'd only need about two weeks to file a draft award and serve it and if there were to be any issues that arise out of that that they could hopefully be resolved within a further period of two weeks after that and if that be the case that a report back in approximately a month/s time that the operative date should be that date.

PN355

THE COMMISSIONER: Mr Nucifora?

PN356

MR NUCIFORA: Commissioner, the ASU, we don't propose the submissions put by Mr Hargraves. Of course we reserve our rights in relation to the drafting of that award if the Commission pleases.

PN357

THE COMMISSIONER: Why don't I do this? Seems to me that apart from some matters that might tailor the award to Virgin Mobile to be a fairly straight forward process, I make the operative date of the award to be the first full pay period to commence on or after 1 November. I don't require the parties to reconvene. Mr Hargraves could I ask you to prepare a draft order in consultation with Mr Nucifora, submit that draft order as soon as practicable and if there is any issue which might give rise to the question of operative date then I'll register it.

PN358

MR HARGRAVES: Yes Commissioner.

ADJOURNED INDEFINITELY [12.15pm]