AG2003/6849, Transcript of Proceedings [2004] AIRCTrans 1275 (5 April 2004)

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 6513

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT LAWLER

AG2003/6849,6850,6851,6852,6853,
9759,9760,9761,9762,9763

TELSTRA CORPORATE GROUP ENTERPRISE
AGREEMENT 2002-2005

TELSTRA NETWORK AND TECHNOLOGY
GROUP ENTERPRISE AGREEMENT 2002-2005

TELSTRA - MOBILE ENTERPRISE
AGREEMENT 2002-2005

TELSTRA - RETAIL ENTERPRISE
AGREEMENT 2002-2005

TELSTRA - WHOLESALE ENTERPRISE
AGREEMENT 2002-2005

Applications under section 170MD(6) of the Act
by the Community and Public Sector Union-PSU
Group, Victoria Region and others to vary the
above agreements to remove ambiguity or uncertainty

MELBOURNE

9.34 AM, WEDNESDAY, 24 MARCH 2004

Continued from 16.1.04

PN1197

THE VICE PRESIDENT: Appearances thank you, Mr Veendendaal for the CPSU.

PN1198

MR VEENENDAAL: Yes, your Honour, thank you.

PN1199

THE VICE PRESIDENT: Thank you. Mr Gardner.

PN1200

MR GARDNER: Yes, no change here, your Honour.

PN1201

THE VICE PRESIDENT: Thank you, for Telstra. Mr Cooper for the CEPU.

PN1202

MR COOPER: Cooper, from the CEPU, thank you.

PN1203

THE VICE PRESIDENT: Thank you. And Ms Lovett for APESMA.

PN1204

MS LOVETT: Yes, your Honour.

PN1205

THE VICE PRESIDENT: And I take you appear also for Provisional Officers - - -

PN1206

MS LOVETT: POAV.

PN1207

THE VICE PRESIDENT: Thank you. Is there agreement about the dates?

PN1208

MR VEENENDAAL: Not as I understand it, your Honour. As I understand the position APESMA would be prepared to consent to the orders, in other words, agrees with the dates but Telstra and CPSU don't agree with the dates in our proposed order.

PN1209

THE VICE PRESIDENT: All right. Who shall I start with? Mr Gardner.

PN1210

MR GARDNER: Your Honour, the fact of the matter is that the first day of the last period is 30 December 2004, this is for the fifth increase. Mr - the CPSU have it 16 December but in fact, consistent with your decision, it is 30 December 2004.

PN1211

THE VICE PRESIDENT: I see.

PN1212

MR GARDNER: Now, that is simply the fact and we would say that that is the proper date which ought to be reflected in any order. That is the first issue that we have and Mr Veenendaal might like to respond.

PN1213

THE VICE PRESIDENT: No, I understand exactly what the issue is. Fine. I don't think there is any need for the parties to make particular submissions on what the position to the orders obviously because I wanted just to hear precisely what the parties were saying but Mr Gardner your position is that it ought be the latest pay period that has any day or days occurring in the specified month and Mr Veenendaal says it should be the pay period the whole of which is in the specified month in the bracketed words?

PN1214

MR GARDNER: That would seem to be what he is saying.

PN1215

THE VICE PRESIDENT: Yes.

PN1216

MR GARDNER: But other dates don't necessary reflect that position.

PN1217

THE VICE PRESIDENT: Which other dates don't reflect that position?

PN1218

MR GARDNER: The - - -

PN1219

MR VEENENDAAL: The second pay period.

PN1220

MR GARDNER: The second pay period because the second pay period goes into - - -

PN1221

THE VICE PRESIDENT: There is a letter dated 22 March 2004 to Mr Stapleton from Mr Veendendaal.

PN1222

MR GARDNER: Yes.

PN1223

THE VICE PRESIDENT: That specifies four pay periods respectively noted second, third, fourth and fifth.

PN1224

MR GARDNER: Yes.

PN1225

THE VICE PRESIDENT: 19 July to 2 July 2003 for the second.

PN1226

MR GARDNER: 19 June to 2 July, yes.

PN1227

THE VICE PRESIDENT: Sorry, 19 June to 2 July 2003 for the second. 18 December to 31 December 2003 for the third. 17 June to 30 June 2004 for the fourth. And 16 December to 29 December 2004 for the fifth. Do you agree, Mr Gardner, that those are the correct dates to nominate the pay periods which Mr Veenendaal is intending to specify?

PN1228

MR GARDNER: Not the fifth, your Honour.

PN1229

THE VICE PRESIDENT: Yes. What is the correct - - -

PN1230

MR GARDNER: The fifth is 30 December 2004 which then obviously goes into January but that is in fact the last - the first day of the last pay period.

PN1231

THE VICE PRESIDENT: So given that Mr Veenendaal is endeavouring to specify the last full pay period falling within the month, do you agree that the dates are correct if that is what he was intending to specify? I just want to know when the pay - - -

PN1232

MR GARDNER: I would need to get instructions on the second because the second goes into July.

PN1233

THE VICE PRESIDENT: What is - - -

PN1234

MR VEENENDAAL: Your Honour, I am happy to assist here because I have got an exhibit which may assist the Commission if I tender it at this time and the exhibit is the pay periods for two years.

PN1235

THE VICE PRESIDENT: Okay.

PN1236

MR VEENENDAAL: Would it assist the Commission if I tendered that?

PN1237

THE VICE PRESIDENT: Yes, thank you. Do you have any objection, Mr Gardner, to that?

PN1238

MR GARDNER: No, as long as we can see it.

PN1239

THE VICE PRESIDENT: Yes.

PN1240

MR VEENENDAAL: And certainly Telstra can tell me if I have got any of these wrong.

PN1241

THE VICE PRESIDENT: Thank you. Do you mind wandering around Mr Veenendaal?

PN1242

MR GARDNER: Thank you, your Honour, sorry about that.

EXHIBIT #J1 SCHEDULE OF PAY PERIODS

PN1243

THE VICE PRESIDENT: So, Mr Gardner, are these the pay periods within Telstra?

PN1244

MR GARDNER: Excuse me, your Honour.

PN1245

THE VICE PRESIDENT: I take it pay is made on the last day of the day period?

PN1246

MR VEENENDAAL: As I understand it, your Honour, pay is actually made on the day following the last day of the pay period. So, for example, for the second pay period that we have specified, payment would be made on 3 July.

PN1247

THE VICE PRESIDENT: Yes.

PN1248

PN1249

MR VEENENDAAL: And I - and these pay periods commence on a Wednesday and finish on a Thursday in two weeks.

PN1250

MR GARDNER: Your Honour, these pay periods do appear to be correct.

PN1251

THE VICE PRESIDENT: Fine.

PN1252

MR GARDNER: It is not the only issue we have, your Honour.

PN1253

THE VICE PRESIDENT: Fire away.

PN1254

MR GARDNER: And it concerns the date in which the order becomes effective.

PN1255

THE VICE PRESIDENT: Yes.

PN1256

MR GARDNER: I apprehend that Mr Veenendaal will - - -

PN1257

THE VICE PRESIDENT: Well, I don't think I have the power to make a retrospective order in the sense that I can't make an order which - well, I will hear from Mr Veenendaal - - -

PN1258

MR GARDNER: No.

PN1259

THE VICE PRESIDENT: - - - but I don't think I can an order which takes effect from a day before today but if the agreement is varied it is a matter for the - for argument in due course I imagine as to whether or not the variation operates ab initio so to speak.

PN1260

MR GARDNER: We might be at cross purposes. I have instructions to enter an appeal in respect of any order.

PN1261

THE VICE PRESIDENT: I must say I would automatically assume that that would be so because I think is very much an open issue. And whilst I have come down - - -

PN1262

MR GARDNER: An open issue and a difficult issue.

PN1263

THE VICE PRESIDENT: Yes. And whilst I have come down on - in favour of one of the two competing views I can see that the - that it is a open issue as to the appropriate principle in terms of whether or not determinative weight ought be given to representations to employees.

PN1264

MR GARDNER: Yes.

PN1265

THE VICE PRESIDENT: And it is well open to a Full Bench to come to a different view.

PN1266

MR GARDNER: Yes. But it would seem that, under section 45, that we don't have the capacity to enter an appeal against the decision per se, we need - - -

PN1267

THE VICE PRESIDENT: No, you need an order.

PN1268

MR GARDNER: We need an order.

PN1269

THE VICE PRESIDENT: Yes.

PN1270

MR GARDNER: So we need an order but - - -

PN1271

THE VICE PRESIDENT: And you will have an order today.

PN1272

MR GARDNER: Well, we are placed in a difficult position if the order comes into effect today, that you would well imagine that we would seek a stay but we are placed in a position where we would in effective breach if it came into effect today in circumstances we will be seeking a stay and what would be asking for is the time - - -

PN1273

THE VICE PRESIDENT: Do I have the power to stay on these orders?

PN1274

MR GARDNER: I don't believe that you do.

PN1275

THE VICE PRESIDENT: No.

PN1276

MR GARDNER: But you do have the discretion to make the order come into effect say three weeks from today to enable the considerable material - appeal material to be filed together with the - a request to seek a stay which is the usual course and the requirement under the rules.

PN1277

THE VICE PRESIDENT: You are no doubt in a position to give an undertaking that - to the extent that there is a delay in the order coming into effect, you will not rely upon that to the prejudice of the unions?

PN1278

MR GARDNER: Yes, yes.

PN1279

THE VICE PRESIDENT: Well, I think - Mr Veendendaal, I appreciate I haven't heard from you but my provisional - my very firm provisional view is that there ought to be such a delay. It seems to me that there is no prejudice to your members that can't be cured by appropriate back pay and that there is a real live issue on an appeal and that it is therefore - the balance of convenience would strongly favour the grant of a stay and the - in those circumstances it is appropriate to make an order in a way that doesn't impose an undue practical burden on Telstra. I notice you are nodding your - you are content with that?

PN1280

MR VEENENDAAL: Well, formally my position would be that I oppose that, your Honour.

PN1281

THE VICE PRESIDENT: Yes. But you don't want to be heard further?

PN1282

MR VEENENDAAL: Absolutely.

PN1283

THE VICE PRESIDENT: Fine, okay. Well, Mr Gardner, you can proceed on the assumption that the order will be - will have a date of commencement which is three weeks from today.

PN1284

MR GARDNER: Thank you, your Honour.

PN1285

THE VICE PRESIDENT: But I will get the order out today in any event. Fine, okay. Nothing further? Mr Cooper.

PN1286

MR VEENENDAAL: Your Honour - - -

PN1287

THE VICE PRESIDENT: Sorry, I - - -

PN1288

MR VEENENDAAL: I do have something to say about all of this.

PN1289

THE VICE PRESIDENT: Yes, just before you - - -

PN1290

MR VEENENDAAL: I thought you were going to adjourn, your Honour.

PN1291

THE VICE PRESIDENT: No, fine. Mr Cooper, did you - - -

PN1292

MR COOPER: I don't really want to add anything.

PN1293

THE VICE PRESIDENT: There is nothing to add from your perspective? Mr Veendendaal.

PN1294

MR VEENENDAAL: Yes, thank you, your Honour.

PN1295

THE VICE PRESIDENT: Sorry, Mr Veendendaal, I had it inferred from your - the position you adopted in relation to the date of operation that there was nothing further you needed to say.

PN1296

MR VEENENDAAL: No, that is certainly the case, your Honour. Your Honour, I do want to say three things about our proposed orders and obviously in support. I gather from the Telstra position that they are not contesting the pay period where specified, the pay periods two, three and four and the controversial pay period from their point of view is pay period five where they disagree with our position. And if that is not correct I would want Mr Gardner to jump up now. What we say is that, in terms of the first argument that we make, is that there does need to be a practical approach to the determination of the last pay period because the pay periods of course to occasionally cut across the month - - -

PN1297

THE VICE PRESIDENT: Yes.

PN1298

MR VEENENDAAL: - - - specified in the decision of the Commission and the following month so what we have tried to do, for instance, in pay period two is take that practical approach and for pay period five, take that practical approach. And the practical approach, we suggest, is that where the majority of days upon which the pay period falls within the relevant month, the relevant month being the month consistent with the Commission's decision, should be considered the last pay period for the month. So in pay period two, that is what we have done. 12 of the 14 days, your Honour, in the pay period fall in June so we, in fairness, said that the pay period should be 19 June - 2 July.

PN1299

If you look at the fifth pay period and this is where the argument is relevant, if we take the Telstra position, what we have is a position where 2 of the 14 days for the pay period are in December, in other words, 12 of the 14 pay periods are actually in the following month.

PN1300

THE VICE PRESIDENT: I understand entirely where the argument is, Mr Veendendaal.

PN1301

MR VEENENDAAL: Good, so we think the last pay period in December is clearly 16 - 29 December, in fairness. But that is not the only argument, your Honour, I think the other two arguments are probably even more powerful than that. The first argument or the second argument, but the first of more powerful arguments, your Honour, is that if you look at the table and the highlighted dates, what you find, your Honour, is that if your Honour adopts all four pay periods that the union suggests including the fifth pay period, a synergy is maintained in terms of the gap between the three - or the four pay periods.

PN1302

What you find is that there is a gap of 12 weeks without pay between the second and third pay period, 12 weeks without pay between the third and fourth pay period and 12 weeks without pay between the fourth and fifth pay period. If you adopt the Telstra position, that synergy is broken in that there will be a 13 week pay gap between the payment of the fourth and fifth pay period. Now, that in itself is an argument, we say, that supports the union's position. But the third and final argument is even more powerful again and I have certainly ordered this way for a reason, your Honour.

PN1303

And what I would refer your Honour to, and I don't know whether you have got the documents but I am happy to tender a document if necessary, is this is the Telstra APESMA CEPU application and orders in terms of their cross application. Do you have those documents with you, your Honour.

PN1304

THE VICE PRESIDENT: I don't, Mr Veenendaal.

PN1305

MR VEENENDAAL: I will tender a document.

PN1306

THE VICE PRESIDENT: Mr Veenendaal, the Safety Net Review Full Bench sits at 10, I am leaving in six minutes.

PN1307

MR VEENENDAAL: And I will be one minute, your Honour. I will be one minute further literally.

PN1308

MR GARDNER: You have made those promises before, Trevor.

PN1309

MR VEENENDAAL: But I do promise one minute and that is - I will stick to that promise.

PN1310

THE VICE PRESIDENT: Okay, well, fire away.

PN1311

MR VEENENDAAL: If I can take you to the first of the orders; the Corporate Group order, it is about four pages in, five pages in.

PN1312

THE VICE PRESIDENT: Yes.

PN1313

MR VEENENDAAL: If you look at the Telstra proposed pay dates, your Honour, you will notice for the fifth pay period it states 31 December, now that is typo and I think it has been - you can infer from what has been said by Telstra today that it should have been 30 December. If you accept the Telstra position effectively it will render your decision, your Honour, nugatory in terms of the fifth pay increase because what you will be accepting is the position that Telstra had in its cross application. Now, that is just an untenable position for the Commission to take in light of the fact that this was essentially a victory for the CPSU argument in respect to pay periods and pay dates.

PN1314

So I think that, for that reason only, your Honour, but certainly with the other reasons your Honour has to find, in all fairness, that the fifth pay period should be 16 - 29 December. Thank you, your Honour.

PN1315

THE VICE PRESIDENT: Anything you wanted to say in response to that, Mr Gardner?

PN1316

MR GARDNER: No, your Honour, other than we sought to identify those dates which were consistent with your decision.

PN1317

THE VICE PRESIDENT: Thank you. I will adjourn at this point and some orders will issue later today.

ADJOURNED INDEFINITELY [9.50am]


INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #J1 SCHEDULE OF PAY PERIODS PN1243