C2004/1393, Transcript of Proceedings [2004] AIRCTrans 1123 (24 March 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 9967

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT LAWLER

C2004/1393

COMMUNICATIONS, ELECTRICAL,
ELECTRONIC, ENERGY, INFORMATION,
POSTAL, PLUMBING AND ALLIED
SERVICES UNION OF AUSTRALIA

and

TELSTRA CORPORATION LIMITED

Notification pursuant to Section 99 of the Act
of a dispute re rest breaks and overtime

SYDNEY

12.10 PM, WEDNESDAY, 10 MARCH 2004

Continued from 26.2.04

PN155

THE VICE PRESIDENT: I note the appearances are as before. Mr Absolom, what's occurring?

PN156

MR ABSOLOM: In relation to the seven points set out by yourself in the previous hearing the CEPU has supplied Telstra with an extensive list of problems, complaints, which was cc'd to you as well.

PN157

THE VICE PRESIDENT: Yes.

PN158

MR ABSOLOM: Due to some time constraints that was not done until yesterday morning between 11.00 and 12.00 as I understand it. We have received at 5.00 o'clock last night a faxed copy of Telstra's documents which, apart from being hard to read, to the CEPUs point of view, and this is only an interim point of view as we have not had a lot of time to digest the material, but to the CEPU it does not address the problems the CEPU raised. The Telstra manager, Duncan Thomas, has indicated to me that point 6 and point 7 of the issues raised, that was the - - -

PN159

THE VICE PRESIDENT: Perhaps it might be convenient if I go through those points. The first one, the provision of a folder of instructions, policies, directions, etcetera, I take it that occurred?

PN160

MR ABSOLOM: No, your Honour. Last night, as indicated, I received a 40 page fax at 5.00 o'clock which indicated Telstra correspondence to their managers in the field. It's unclear what some of the correspondence is but to say that we've been provided with a folder of instructions, policies, directions, etcetera, is not the case. However, I have been informed this morning that a document has arrived in my office. I'm unclear whether it's exactly the same as the document.

PN161

THE VICE PRESIDENT: I'll ask Mr Brajevic about that in a moment. The survey, point 2?

PN162

MR ABSOLOM: As indicated by Telstra there was no such survey that has taken place. Mr Pollack, again as indicated by Telstra, denies any knowledge of any survey.

PN163

THE VICE PRESIDENT: Mr Brajevic, did Telstra consider preparing a policy document, that's point 3?

PN164

MR BRAJEVIC: Yes, Telstra has considered whether we will prepare a policy document and Telstra will consider preparing a policy document.

PN165

THE VICE PRESIDENT: Is such a document in the process of being prepared?

PN166

MR BRAJEVIC: No, sir, it isn't. Sorry, pen hasn't been put to paper to say that it's being prepared but it certainly - - -

PN167

THE VICE PRESIDENT: I thought point 3 was for Telstra to decide whether or not it was prepared as a matter of policy - I'm about to use the word "policy" twice - whether Telstra was prepared as a matter of policy to prepare such a document and promulgate it, the contents to be sorted out in due course. Has that over all policy decision been made, yes, Telstra is prepared to produce such a document if the contents can be agreed?

PN168

MR BRAJEVIC: That's correct.

PN169

THE VICE PRESIDENT: Item 4, the union has submitted the single document particularising the deficiencies of the completed contribution system?

PN170

MR BRAJEVIC: Yes, your Honour.

PN171

THE VICE PRESIDENT: Point 5 is merely a notation. Has Telstra made a decision, Mr Brajevic, in relation to changing the SMS notification from an opt in to an opt out?

PN172

MR BRAJEVIC: Telstra has considered that and it won't change from an opt in to an opt out.

PN173

THE VICE PRESIDENT: Has Telstra considered whether it will switch off the SMS notification component during the balance of the conciliation?

PN174

MR BRAJEVIC: Telstra has considered whether or not will switch off the SMS notification component during the balance of conciliation and its response to that is Telstra will not do that.

PN175

THE VICE PRESIDENT: Thank you. Now the question is whether or not there is any point in further conciliation. From what's occurred in the past it seems to me that there isn't much point in further conciliation. That doesn't mean that the parties can't continue speaking, that there can't be further conciliation, but as a matter of formality it seems to me that conciliation ought be found to be at an end and the matter should be referred for arbitration. Do you have any objection to that course, Mr Brajevic?

PN176

MR BRAJEVIC: No, sir.

PN177

THE VICE PRESIDENT: Mr Absolom, you don't object to that course?

PN178

MR ABSOLOM: No, your Honour.

PN179

THE VICE PRESIDENT: I think the better course is to adjourn the matter now and I'll have the file transferred to probably Commissioner Smith and he can then list it for directions for the purposes of preparing for the arbitration. I imagine that there will be a need for directions which will provide for the provision of statements and the union will have to make the hard decisions at this point as to whether or not individual members stand up and be counted and to give evidence of specific examples of the problems that are alleged. There will also probably be need for provision for either a discovery or for the issuing of summonses or notices to produce so that the union can gain access to the relevant documents within Telstra. That's something you will have to consider as well, Mr Absolom. I think the sooner that you get your statements prepared, irrespective of when directions are made, the sooner the matter can be listed for arbitration, because obviously Telstra will need reasonable time to respond to your material. Is there anything else that needs to be done, otherwise I'll just adjourn the matter generally and transfer the file, as I say probably to Commissioner Smith and he can then list the matter for directions which I imagine will occur fairly quickly. Mr Brajevic, do you travel up from Melbourne?

PN180

MR BRAJEVIC: I do.

PN181

THE VICE PRESIDENT: Mr Absolom, you're in Melbourne?

PN182

MR ABSOLOM: Yes.

PN183

THE VICE PRESIDENT: So it's convenient for the parties. I note Mr Chalker is not in Melbourne. Presumably it's six of one half a dozen of the other for the union as to whether or not it's flying you, Mr Absolom, to Sydney or flying Mr Chalker to Melbourne.

PN184

MR ABSOLOM: Can I just add, your Honour, that may be affected from where our witnesses are gathered from.

PN185

THE VICE PRESIDENT: All I'm saying is that in the first instance I think the better course is for the matter to be listed in Melbourne, at least for directions. As to where the hearing occurs, that's a matter for whichever commissioner or presidential member has the ultimate carriage of the file. As I say, I think it will probably be Commissioner Smith. It just depends upon his availability in the immediate future. So far as the panel is concerned there is only me in Sydney and only Commissioner Smith in Melbourne.

PN186

Commissioner Deegan in Canberra is essentially fully occupied doing all Canberra matters including these panel matters. That only leaves Commissioner Richards in Brisbane and Commissioner Thatcher in Perth. It's probably impractical and a little costly to be having Commissioner Thatcher fly backwards and forwards to do this matter. As I say, assuming it is Commissioner Smith, it will be a matter for him to determine where the evidence is actually taken. If there are witnesses here in New South Wales or in Brisbane I imagine he will be more than happy to sit in the appropriate location to facilitate the taking of that evidence. Nothing further from you, Mr Brajevic?

PN187

MR BRAJEVIC: Just one further point, sir, and that's with respect to the submission that was made last time we were together that Telstra is prepared to consider any specific incidents of injustice relating to this measure.

PN188

THE VICE PRESIDENT: I think that's noted.

PN189

MR BRAJEVIC: We're just reiterating that notwithstanding the fact that it is being referred for arbitration - - -

PN190

THE VICE PRESIDENT: That's a very worthwhile thing and I would certainly commend to the union that they should take advantage of that, but in the nature of things no doubt the union will say there are many people who have real problems who are unwilling or fearful of having their complaints referred for fear of the consequences of specifically identifying themselves as a troublemaker. I take it that's the way you put it, Mr Absolom.

PN191

MR ABSOLOM: That is exactly the way I put it.

PN192

MR BRAJEVIC: Suffice to say the door is open, the invitation is there.

PN193

THE VICE PRESIDENT: Yes. I have to say it does seem to me that Mr Thomas approaches these matters in good faith and that you could imagine that the Commission would be very astute if it were confronted with an unfair dismissal application by somebody who had made such a complaint. And I mean astute to scrutinise very carefully the circumstances and to ascertain whether or not there was any basis for a suggestion that a subsequent termination was somehow linked to a person having put a complaint through the union to Mr Thomas in relation to particular problems with the completed contributions measure, but then I understand that that's a fairly intractable problem. Nothing further?

PN194

MR BRAJEVIC: Nothing further, sir.

PN195

THE VICE PRESIDENT: I will adjourn this matter generally. In relation to the two associated files, if I can put it that way, 5927 of 2003 and 5929 of 2003, what should happen to those files? They're the 170LW notifications which raise completed contributions issues. I will simply refer those files to Commissioner Smith as well and to the extent that there is anything that needs to occur with them he can do it, assuming again that he's the person to whom the files are allocated. The Commission is adjourned.

ADJOURNED INDEFINITELY [12.22pm]