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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 10, 15 Adelaide St BRISBANE Qld 4000
(PO Box 13038 George Street Post Shop Brisbane Qld 4003)
Tel:(07)3229-5957 Fax:(07)3229-5996
TRANSCRIPT OF PROCEEDINGS
O/N 2399
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER SMITH
C2003/6329
CPSU, the COMMUNITY AND PUBLIC SECTOR UNION
and
SWIFTEL COMMUNICATIONS
PTY LIMITED and OTHERS
Notification pursuant to Section 99 of the Act
of an industrial dispute re log of claims
BRISBANE
9.44 AM, WEDNESDAY, 24 MARCH 2004
Continued from 3.2.04 in Sydney
PN169
THE COMMISSIONER: Is there any change in appearances?
PN170
MS C. DOYLE: Yes, good morning, Commissioner, my name is Doyle, initial C, a solicitor of Clayton Utz. I seek leave to appear for the applicant in these proceedings, 1800 Reverse Operations Pty Ltd.
PN171
THE COMMISSIONER: Thank you, Ms Doyle. Any objection to the application for leave?
PN172
MS L. ANDELMAN: No, Commissioner.
PN173
THE COMMISSIONER: Leave is granted, Ms Doyle. Yes, Ms Doyle?
PN174
MS DOYLE: Commissioner, first of all I am instructed by my client, Mr Jobbins, that he handed up a number of documents to you at the last hearing. They were the application for these proceedings under Section 111AAA of the Workplace Relations Act.
PN175
THE COMMISSIONER: Yes.
PN176
MS DOYLE: Submissions made pursuant to that application.
PN177
THE COMMISSIONER: Yes.
PN178
MS DOYLE: And an affidavit by Mr Jobbins.
PN179
THE COMMISSIONER: Yes.
PN180
MS DOYLE: Commissioner, may I - - -
PN181
THE COMMISSIONER: Now, I haven't marked any of those, I don't think.
PN182
MS ANDELMAN: Right.
PN183
THE COMMISSIONER: So what we will do is - are you going to call Mr Jobbins to adopt his affidavit?
PN184
MS DOYLE: Yes, I can do that.
PN185
THE COMMISSIONER: All right.
PN186
MS DOYLE: I have also got a supplementary affidavit of events that have occurred since the last hearing.
PN187
PN188
THE COMMISSIONER: And attached to those submissions were two decisions of Full Benches of the Commission, and a copy of the certified agreement. I will leave the affidavit at this stage.
PN189
MS DOYLE: Commissioner, I won't be going over those submissions in exact wording of those submissions again; have you had an opportunity to read those submissions?
PN190
THE COMMISSIONER: Yes.
PN191
MS DOYLE: Thank you. As I said, I would also like to provide the supplementary affidavits, but can do that at the time of calling witnesses.
PN192
THE COMMISSIONER: Yes. Now, is there anything you wanted to highlight from the submissions that you particular want to draw my attention to?
PN193
MS DOYLE: What I thought I would do is provide oral submissions now which I hope to wrap up - provide in a nutshell what our application is about, our reasons for application.
PN194
THE COMMISSIONER: Certainly, very well.
PN195
MS DOYLE: But before doing so, I will be referring to a transcript of the Queensland Industrial Relations Commission based on the application for certification of that agreement you have. Would you like me to tender that at this point?
PN196
THE COMMISSIONER: It is a matter for you.
PN197
MS DOYLE: Yes.
PN198
THE COMMISSIONER: That was before Vice President Linnane, wasn't it?
PN199
MS DOYLE: That is correct.
PN200
THE COMMISSIONER: Yes. Yes, transcript of proceedings before Vice President Linnane dated 25 October 2002 I will mark as D2.
EXHIBIT #D2 TRANSCRIPT OF PROCEEDINGS BEFORE VICE PRESIDENT LINNANE DATED 25/10/2002
PN201
MS DOYLE: Commissioner, perhaps if I could first clarify that we are proceeding today on the application of a Section 111AAA application.
PN202
THE COMMISSIONER: Yes.
PN203
MS DOYLE: Yes, thank you.
PN204
THE COMMISSIONER: Well, as I understand the position, the union have put forward their prima facie position of the service of the log and other technical matters. You have raised 111AAA to defeat that application, so you are on.
PN205
MS DOYLE: Thank you, Commissioner. Well, Commissioner, if I could turn to each of those subsections of Section 111AAA now?
PN206
THE COMMISSIONER: Yes.
PN207
MS DOYLE: Subsection (1) deals with whether there is a state award or agreement in place:
PN208
...that governs the wages and conditions of particular employees whose wages and conditions of employment are the subject of an industrial dispute.
PN209
That is the case here, unless the Commission is satisfied that ceasing would not be in the public interest.
PN210
THE COMMISSIONER: Is there any contest between the parties an agreement exists? Is there any contest?
PN211
MS ANDELMAN: No, Commissioner.
PN212
THE COMMISSIONER: All right, an agreement exists.
PN213
MS DOYLE: Okay. If I could just elaborate on those submissions, Commissioner. As outlined in our written submissions submitted to you on 3 February 2004, the employer company is a party to the 1800 Reverse Operations Pty Ltd Certified Agreement of 2002. The agreement was certified by the Queensland Industrial Relations Commission on 25 October 2002 and is operative for three years.
PN214
It was certified after the 1800 Reverse Operations Pty Ltd demonstrated to the Queensland Industrial Relations Commission that it had satisfied all the requirements of the Industrial Relations Act of Queensland. This includes but is not limited to passing the no-disadvantage test as required by that Act.
PN215
THE COMMISSIONER: Yes. You know that is not necessarily the test here? There is a long line of authority that compliance with principles or legislative structures of state industrial authorities doesn't necessarily - it doesn't necessarily follow that the Federal Commission in the application of its Act or its principles would endorse that position.
PN216
MS DOYLE: Yes. We would submit the Commission would need to be satisfied that it has already satisfied the provisions of the Act if I was seeking to rely on that state agreement.
PN217
THE COMMISSIONER: Well, it comes to the public interest test, doesn't it?
PN218
MS DOYLE: Yes.
PN219
THE COMMISSIONER: Say, for argument's sake, that the state permitted something to occur that the federal law didn't, that might give rise to an argument that it is not in the public interest for the Federal Commission to refrain from hearing a matter in circumstances where its law wouldn't have permitted such action. But there is no significant difference, is there?
PN220
MS DOYLE: No, there is not.
PN221
THE COMMISSIONER: And indeed, I think in your submissions you say that you would in any event be in excess of the award, I thought.
PN222
MS DOYLE: Yes, that is right.
PN223
THE COMMISSIONER: Yes. Thank you.
PN224
MS DOYLE: Commissioner, one of the main reasons the certified agreement was sought and was put in place was the fact that the Clerical Employees Award state the applicable award in Queensland was unsuitable for the company's needs. They sought an agreement which suited their operational needs of a small call-centre business in order for the business to operate efficiently.
PN225
THE COMMISSIONER: Yes.
PN226
MS DOYLE: Both the employer and employees went to great - - -
PN227
THE COMMISSIONER: Well, particularly the hours of work pattern; you wouldn't have been able to comply with the Clerical Officers Award.
PN228
MS DOYLE: That is right. Both the employer and the employees went to great efforts to negotiate the certified agreement. These efforts are in part explained in the submissions put to her Honour, Vice President Linnane, of the Queensland Industrial Relations Commission during the hearing of the certified agreement of October 2002, as contained in that transcript, being exhibit D2. If I could also take you to - I was going to take you to Mr Jobbins' affidavit; we might seek to enter that affidavit shortly.
PN229
THE COMMISSIONER: Yes.
PN230
MS DOYLE: The transcript, being exhibit D2, also shows that the submissions made on the wage benefits of the agreement as compared to the Clerical Employees Award state that there are substantial wage benefits in that agreement. It was submitted at that time that there was at least a 10 per cent differential for all employees and a 25 per cent differential - that is, wage increase - for category B employees, as contained in the agreement. Further, the agreement provides for annual wage increases being calculated by the previous year's CPI, being a minimum increase of two and a half per cent and a maximum of 7 per cent.
PN231
A further explanation of how the agreement meets the no-disadvantage test compared to the Clerical Employees Award State can be found in the affidavits filed in the Queensland Industrial Relations Commission for the purposes of certification. These are contained in exhibit E to Mr Johnson's affidavit.
PN232
The agreement is also well ahead in terms of wages benefits and compared to the Federal Telecommunications Service Industry Award 2002, the subject of the dispute; application by the CPSU. This, I am instructed, has been recognised by the union in conversations with Mr Jobbins and has been mentioned in his supplementary affidavit which we will be submitting. We submit, though, that the most important features of the agreement is its simplicity and operation, flexibility to the operational needs of the business and to the employees and the custom built classification structure designed for the company's operations and size of business.
PN233
Holistically, the agreement was designed to meet the classification and business needs of the agreement to run a shift in its maximum peak period which employs only four employees at any one time. Some of the provisions were designed specifically to take into consideration individual requests of employees. For example, one employee sought to only work the night shift and this was taken into consideration in establishing that agreement.
PN234
Importantly, too, the certified agreement was made after significant consultation with the employees and after due consideration of the safety issues highlighted and contained in the Queensland Call Centres Code of Conduct. Another reason the company has sought to make the certified agreement in the State Commission, as opposed to the Federal, was its geographical location, being Burleigh Waters south of Brisbane, and its access to the State Commission dispute resolution powers in that we have more Commissioners here in Brisbane than we do - in the State Commission than we do in the Federal Commission.
PN235
THE COMMISSIONER: Well, I'm not sure I would be persuaded that you would get any less service from the Federal Commission than you do from the State Commission.
PN236
MS DOYLE: Well, no, I don't - - -
PN237
THE COMMISSIONER: And the location is a flaw.
PN238
MS DOYLE: Yes. If need be I understand the State Commission does attend to the Southport Courthouse for such matters.
PN239
THE COMMISSIONER: And you would be as aware as I am that many State Members have Federal Commissions.
PN240
MS DOYLE: Yes.
PN241
THE COMMISSIONER: So I don't think the argument goes anywhere.
PN242
MS DOYLE: Also should the union be successful in roping the company and its employees into the award - - -
PN243
THE COMMISSIONER: Well, that's not this application, is it? This is the dispute finding stage. Am I wrong?
PN244
MS DOYLE: It's an application as to whether the Commission must cease dealing with the matter.
PN245
THE COMMISSIONER: No, but this is - all I'm asked to do is to find an industrial dispute at this stage.
PN246
MS DOYLE: That is what I sought to clarify, sorry, earlier on. We had sought that the application pursuant to Section 111AAA.
PN247
THE COMMISSIONER: Yes.
PN248
MS DOYLE: Right.
PN249
THE COMMISSIONER: Yes.
PN250
MS DOYLE: And we're seeking to have that matter determined before a matter in relation to the industrial dispute.
PN251
THE COMMISSIONER: Correct, yes.
PN252
MS DOYLE: Okay.
PN253
THE COMMISSIONER: But the only matter - the union's application is not for an award yet, it's to have a dispute found.
PN254
MS DOYLE: Yes.
PN255
THE COMMISSIONER: And you're challenging that. So seeking to tell me about awards and agreements I don't know - unless you say there's some difficulty with a Federal Regulation I don't see how the public interest is excited in relation to those matters. Yes.
PN256
MS DOYLE: Commissioner, this application is for a dispute finding - - -
PN257
THE COMMISSIONER: Yes.
PN258
MS DOYLE: - - - but the company is aware and as the Commission is aware that we are seeking - if a dispute is found - - -
PN259
THE COMMISSIONER: A roping-in award.
PN260
MS DOYLE: - - - to have a roping-in - - -
PN261
THE COMMISSIONER: Yes, I know that.
PN262
MS DOYLE: A Federal roping-in award.
PN263
THE COMMISSIONER: Yes. You haven't been shy about that.
PN264
MS DOYLE: No.
PN265
THE COMMISSIONER: But that is not these proceedings.
PN266
MS DOYLE: Well, they are connected to the roping-in application.
PN267
THE COMMISSIONER: No, it's not. Well, it's connected in this sense. It provides you the jurisdiction to make the application, but getting one doesn't mean you get the other.
PN268
MS DOYLE: Yes. But perhaps it may be appropriate, depending on my friend's view, to have those arguments heard together since we are here today and it might be efficient for those arguments to be addressed together so that - - -
PN269
THE COMMISSIONER: Have you made an application for a roping-in award?
PN270
MS DOYLE: No, I don't think we have, but we can do that. I mean, we have discussed the making of the application. We've held off - - -
PN271
THE COMMISSIONER: Sure.
PN272
MS DOYLE: - - - until this matter is heard in regard to the dispute finding but that is the next step that we will be seeking.
PN273
THE COMMISSIONER: All right. Well, I will deal with that when it's made.
PN274
MS DOYLE: Thank you, Commissioner. Insofar as subsection (1) of Section 111AAA is concerned, we submit that we satisfy the first limb of subsection (1) that there is a State agreement of award in place. The next consideration is whether to cease dealing with a dispute because that State award of agreement would or would not be in the public interest.
PN275
THE COMMISSIONER: Yes.
PN276
MS DOYLE: I will move on to that, if I may.
PN277
THE COMMISSIONER: Yes.
PN278
MS DOYLE: First of all, Commissioner, if I could say that the onus of proof in respect to proving that it is - will not be in the public - sorry, I will just - there's a couple of double negatives in this phrase.
PN279
THE COMMISSIONER: Yes.
PN280
MS DOYLE: The Commission must cease dealing with the industrial dispute in relation to those employees unless the Commission is satisfied that ceasing would not be in the public interest.
PN281
THE COMMISSIONER: Yes. And then in determining the public interest it says that I've got to have regard to the views of the employees - - -
PN282
MS DOYLE: Yes.
PN283
THE COMMISSIONER: - - - and the views of the employer.
PN284
MS DOYLE: Yes. We submit that the onus of proof in that regard lies with the applicant - sorry. We're the applicant in this proceeding, but the applicant union in the Section 99 proceedings. So the onus of proof lies with the respondent union in these proceedings in showing that ceasing the industrial dispute is not in the public interest. This was found in the AMOU case, which you have a copy of as part of our submissions.
PN285
THE COMMISSIONER: Yes.
PN286
MS DOYLE: D1. And later referred to by the Full Bench of - - -
PN287
THE COMMISSIONER: Just a moment.
PN288
MS DOYLE: Sorry.
PN289
THE COMMISSIONER: Sorry. I don't think you meant the AMIEU, did you? There's two decisions attached. One involved the Australian Workers Union and the other involved the NUW.
PN290
MS DOYLE: That's right. The Australian Workers' Union of Employees, Queensland and Another v the Australian Maritime Officers Union and Another.
PN291
THE COMMISSIONER: Yes.
PN292
MS DOYLE: That is - - -
PN293
THE COMMISSIONER: That is the one you're referring to?
PN294
MS DOYLE: Yes, that's right.
PN295
THE COMMISSIONER: And where does it talk about onus in that decision?
PN296
MS DOYLE: Commissioner, if I may, could I take you to the other decision that I have.
PN297
THE COMMISSIONER: The other decision, yes. The NUW one? Yes.
PN298
MS DOYLE: No, I'm sorry, the decision of Verrier trading as Rockingham Veterinary Clinic and Another v APESMA, which I have not handed up to you, which I would like to do.
PN299
THE COMMISSIONER: All right, thank you. Yes.
PN300
MS DOYLE: I beg your pardon, Commissioner, if you would give me a moment.
PN301
THE COMMISSIONER: Have you handed yours up to me? Your copy?
PN302
MS DOYLE: No.
PN303
THE COMMISSIONER: All right. It's just that the copy you've handed to me is helpfully marked.
PN304
MS DOYLE: Oh, is it? Well, perhaps I have.
PN305
THE COMMISSIONER: I'll pass it back down.
PN306
MS DOYLE: Thank you. Commissioner, rather than delay your time, might I come back to this - - -
PN307
THE COMMISSIONER: Sure.
PN308
MS DOYLE: - - - after we've possibly had an adjournment later on, and I could highlight that for you.
PN309
THE COMMISSIONER: Yes. That's right.
PN310
MS DOYLE: Thank you. In the absence of highlighting that for you, I will proceed with arguments in respect of the public interest.
PN311
THE COMMISSIONER: Thank you.
PN312
MS DOYLE: In determining the public interests for the purposes of Subsection (1), the Commission must have primary consideration to the views of the employees referred to in Subsection (1) of Section 111AAA and the views of the employer or employers of those employees. Commissioner, it might be prudent to now call our witnesses in that those - what I will seeking to rely on in my submissions are the affidavits, and I understand Ms Andelman wishes to cross-examine our witnesses.
PN313
THE COMMISSIONER: To deal with the views of the employer?
PN314
MS DOYLE: And of the employees.
PN315
THE COMMISSIONER: And of the employees. Very well.
PN316
MS ANDELMAN: Commissioner, if I just may say, we received the affidavit from Mr Jobbins quite some time ago, however I've only just this morning seen the supplementary affidavit. I don't think there is a problem with it, but what I would seek is if there was any further questions in regard to that supplementary affidavit, for the witness to be called back to answer questions on it. In regard to the second affidavit, the same applies. I just saw it this morning - - -
PN317
THE COMMISSIONER: Just this morning, did you? I see.
PN318
MS ANDELMAN: - - - and what I'll be seeking is - - -
PN319
THE COMMISSIONER: Well, we might take a break before you need to cross-examine so that you can read the statement and familiarise yourself.
PN320
MS ANDELMAN: If that were the case, I was going to suggest we could have the first witness, Mr Jobbins, and then have a short adjournment.
PN321
THE COMMISSIONER: Sure. Yes.
PN322
MS DOYLE: Commissioner, I wish to call Mr Jobbins as a witness.
PN323
PN324
THE COMMISSIONER: Please sit down, Mr Jobbins. Yes?
PN325
MS DOYLE: Mr Jobbins, would you state your full name and address for the Commission, please. Sorry, full name and address?---Paul Simon Jobbins.
PN326
THE COMMISSIONER: Your business address will be fine?---Okay. Suite 101, 19A Boundary Street, Rushcutters Bay, New South Wales.
PN327
MS DOYLE: Mr Jobbins, have you prepared an affidavit of 2 February 2004?---Yes.
PN328
Do you swear that the contents of that affidavit are true and correct?---I do. Yes, I do.
PN329
Commissioner, I seek to tender that affidavit, although you already have a copy of that affidavit.
PN330
THE COMMISSIONER: No, no. That's fine. Any issues, Ms Andelman?
PN331
MS ANDELMAN: No, Commissioner.
PN332
PN333
MS DOYLE: Mr Jobbins, is it true you've also prepared a supplementary affidavit executed on 24 March, being today?---Yes.
**** PAUL SIMON JOBBINS XN MS DOYLE
PN334
And do you swear that the contents of that affidavit are true and correct?---Yes.
PN335
THE COMMISSIONER: I haven't got that one.
PN336
MS DOYLE: Oh, sorry. I seek to tender that one, Commissioner.
PN337
THE COMMISSIONER: Thank you.
PN338
MS ANDELMAN: Just, Commissioner, that's the - - -
PN339
THE COMMISSIONER: That's the one you were referring to.
PN340
MS ANDELMAN: - - - supplementary I was referring to.
PN341
THE COMMISSIONER: Yes. I understand. And that will be the supplementary affidavit dated 24 March 2004 will be D4.
EXHIBIT #D4 SUPPLEMENTARY AFFIDAVIT OF PAUL SIMON JOBBINS DATED 24/03/2004
PN342
MS DOYLE: Commissioner, I don't seek to ask any questions.
PN343
THE COMMISSIONER: Thank you. Ms Andelman, are you in a position to cross-examine now, or do you wish to have a break to, again, familiarise yourself with these two?
**** PAUL SIMON JOBBINS XN MS DOYLE
PN344
MS ANDELMAN: No. I'm ready to cross-examine - - -
PN345
THE COMMISSIONER: Very well.
PN346
MS ANDELMAN: - - - on the content of D3.
PN347
THE COMMISSIONER: And D4?
PN348
MS ANDELMAN: No, not D4.
PN349
THE COMMISSIONER: Well, why don't we have a break for 15 minutes so that you can have a look at D4 so that you're cross-examining in both?
PN350
MS ANDELMAN: Thank you.
PN351
THE COMMISSIONER: I'll adjourn for 15 minutes.
SHORT ADJOURNMENT [10.31am]
RESUMED [10.50am]
PN352
THE COMMISSIONER: Yes, Mr Andelman.
PN353
**** PAUL SIMON JOBBINS XXN MS ANDELMAN
PN354
MS ANDELMAN: Mr Jobbins, what is the business of 1800 Reverse Operations?---Operations? That company purely employ call centre staff.
PN355
To undertake what kind of work?---And they connect phone calls. It's purely just an employment company that employs the staff, and they carry out a call centre service, and 1800 Reverse Operations charges on to another company for the services that it provides.
PN356
And what's that company?---1800 Reverse.
PN357
And what's the business of 1800 Reverse?---A reverse charge calling service.
PN358
And what industry does 1800 Reverse operate in?---Telecommunications.
PN359
And who are the competitors of 1800 Reverse?---Other reverse charge calling providers, including - - -
PN360
Like - do you know some of the companies?--- - - - Telstra.
PN361
Telstra. So which company actually employs staff at the call centre?---1800 Reverse Operations Proprietary Limited.
PN362
Thank you. I'd like to take you through your statement, paragraph 32. Do you have a copy there?---Is this the most - today's supplementary?
PN363
No. It's D3, your original affidavit. Are you familiar with that paragraph?---Yes.
PN364
Okay. Are you familiar with Section 152 of the Workplace Relations Act?---I'm sorry.
**** PAUL SIMON JOBBINS XXN MS ANDELMAN
PN365
Probably not. Commissioner, may I read from the Workplace Relations Act, Section 152?
PN366
THE COMMISSIONER: Yes.
PN367
MS ANDELMAN: Section 152 says:
PN368
Awards to prevail over State laws and State awards.
PN369
And Section 152(2) states, if I may paraphrase?
PN370
THE COMMISSIONER: Yes.
PN371
MS DOYLE: Excuse me, Commissioner. May I provide a copy of Section 152(2)?
PN372
THE COMMISSIONER: Of course. Yes.
PN373
THE WITNESS: Thanks.
PN374
MS ANDELMAN: I'll just give you a moment, if you just want to read that quickly?---Thanks.
PN375
This section states that if a State employment agreement comes into place prior to a Federal award the State employment agreement prevails over it. Do you agree that in this circumstance the agreement that you have in 1800 Reverse Operations came into place prior to this application for a dispute finding?---Yes.
**** PAUL SIMON JOBBINS XXN MS ANDELMAN
PN376
So in fact the State employment agreement is currently in operation?---Yes.
PN377
So this would mean under this section that the State agreement would override the Federal award?---There's no Federal award in place currently for us.
PN378
That's correct, but if there was an award, where there's a State award, would you not agree that the State employment agreement overrides the award?
PN379
THE COMMISSIONER: Well, that's not really a matter that the witness should be called upon to answer. It's - the Act will apply, whatever that means.
PN380
MS ANDELMAN: Mr Jobbins, you state in paragraph 32 that there would be considerable hardship on the company in complying with the award. On what basis do you make that statement?---I believe that if we had to comply with the Federal award that we would have to change the employment conditions of the employees, because the way I understand it our State agreement sits on top of a State award, and if we were to be roped in Federal award would replace the award that sits behind it and we would - I understand that there's issues to do with inconsistencies that I don't completely understand in all areas where the Federal award would be the legislation that we would have to comply with rather than the State agreement. But it would mean that the actual working conditions would change because the award that sits behind our agreement has changed. So we would have to - other than examining what provisions have changed there are a number of different provisions that I understand between the Federal award and the current State award, and by changing the way that the current working conditions are in place, the work involved with studying the award, doing comparisons to find out if there are any inconsistencies - because - - -
PN381
THE COMMISSIONER: There's only one you'd be concerned about, isn't it?---I beg your pardon?
**** PAUL SIMON JOBBINS XXN MS ANDELMAN
PN382
Category B employees hours of work?---No, we haven't examined it that closely.
PN383
Ordinary hours for 24 hours a day? 24 hours a day, seven days a week? That hasn't happened by accident?---We're currently not operating 24 hours - - -
PN384
You gave a commitment to the State Commission, but you have the capacity under the agreement to do so?---Yes.
PN385
Yes. That's really the only issue, isn't it?---I believe that we would still have the capacity under the Federal award to do so.
PN386
24 hours a day at ordinary time rates? $15 an hour for working 2 o'clock in the morning, or a 10 hour spread including 2 o'clock in the morning?---Under the current agreement there are different rates that apply for people who work different hours and people who work night shifts also get a bonus under our current agreement.
PN387
Is that right?
PN388
MS ANDELMAN: 10 per cent, I understand, if they work between midnight and 6 am?---That's right. That's on top of an increased rate of 25 per cent above the award - base award rate.
PN389
THE COMMISSIONER: Yes, that's what - - - ?---That's in addition to the 25 per cent increase.
PN390
Yes, but the 10 per cent, though, would get, you say under the agreement - if a first year and category B employee, which is about $15 something; if you put the spread of hours from 10 o'clock at night and 10 hours later they get 10 per cent on top of their hourly rate, do they?---Between midnight and 6 am they do.
**** PAUL SIMON JOBBINS XXN MS ANDELMAN
PN391
Between midnight and 6 am?---I'm not sure what the base rate is for anyone on category B, but I - - -
PN392
Under the agreement?---Yes. I don't have it in front of me.
PN393
$15.56?---Okay.
PN394
Grade 1 year 1.
PN395
MS DOYLE: Excuse me, Commissioner. Would it be helpful if we could provide a copy of the - - -
PN396
THE COMMISSIONER: Yes, that's fine. That might help too. Thank you, Ms Doyle.
PN397
THE WITNESS: That has since increased with CPI.
PN398
THE COMMISSIONER: Yes. But that wouldn't happen under the State award, would it?---No.
PN399
No?---I'm not sure if I finished answering the question.
PN400
My question was simply this: where is your - it arises from the question that Andelman was asking. What do you have to significantly change - that was the question that was put to you: what do you have to significantly change? Now, the no-disadvantage test would apply to the Federal award once this agreement expired if you wanted to make a new agreement?---Right. Okay.
**** PAUL SIMON JOBBINS XXN MS ANDELMAN
PN401
But it doesn't mean that you couldn't make another agreement?---As I understand it, where there's inconsistencies between our agreement and the underlying award, that the underlying award would take precedence? No?
PN402
No.
PN403
MS ANDELMAN: And I think also your exhibit B, which is the copy of the agreement, in part 1.3 - do you have a copy there in front of you? Would you like to read that out?
PN404
THE COMMISSIONER: Just a moment, please. Application of the agreement? The agreement, you mean?
PN405
MS ANDELMAN: Yes, Commissioner.
PN406
THE COMMISSIONER: Yes.
PN407
MS ANDELMAN: If you could read that out, Mr Jobbins: 1.3?---
PN408
Notwithstanding any other award or certified agreement, this agreement shall apply exclusively to the employer and bind all employees unless a Queensland Workplace Agreement (QWA) is entered into between the employer and an employee in which case the QWA will prevail over this agreement to the extent of any inconsistency.
PN409
That's very clear, isn't it?---Yes, but I'm not sure - I think that's talking about an agreement between employers and employees. That's this - - -
**** PAUL SIMON JOBBINS XXN MS ANDELMAN
PN410
Yes, that's talking about this particular agreement. It says that:
PN411
Notwithstanding any other award, this agreement shall apply exclusively.
PN412
?---Exclusively?
PN413
Isn't that correct?
PN414
THE COMMISSIONER: Well, again, that's probably a legal question, Ms Andelman, that might go as to whether or not there exists a Federal award, and what happens in circumstances where this agreement passes it's nominal expiry date and what's the provisions under the State Act. I don't know the answer to those questions.
PN415
MS ANDELMAN: I put to you, Mr Jobbins, that in fact if a dispute is found, and perhaps if the company is roped into a Federal award there would be no significant hardship to the company because your agreement prevails over the award?---I don't understand whether or not it applies in all circumstances.
PN416
Well, your paragraph 32 - if I could take you back to your paragraph 32, you say in the second sentence - if you could just read that out; the second sentence of your paragraph 32?---
PN417
This hardship would include fundamentally altering the workplace to ensure compliance with the award after having only just finalised the certification process for the agreement.
PN418
Yes, and you've just read 1.3 of the agreement. Do you still hold that view?---I'm not sure that - - -
**** PAUL SIMON JOBBINS XXN MS ANDELMAN
PN419
THE COMMISSIONER: Yes. Just a moment.
PN420
MS DOYLE: Commissioner, I don't - the witness is not in a position to interpret 1.3 and as you said the overlying features of both the Industrial Relations Act termination provisions, what might happen in the future he's not able to respond, I don't think.
PN421
THE COMMISSIONER: Well, except in this instance. He's able to respond as to why he came to the view he did because he's deposed to that view and then it's something you can pick up in submissions. Yes, Ms Andelman.
PN422
MS ANDELMAN: Do you still hold that view after hearing from - reading from the Act, reading from the agreement, hearing from the Commissioner and the questions that I've put to you, do you still hold that view that you've expressed in paragraph 32?---Yes, because I believe that if our agreement is silent in certain areas the award, if we were roped into it, would prevail. And that may certainly cause additional hardship to us.
PN423
THE COMMISSIONER: Yes, I see.
PN424
MS ANDELMAN: So you have come to the view in expressing paragraph 32 on the understanding that an award would prevail over an agreement if there was anything that was silent in the agreement or if there was any consistency?
PN425
THE COMMISSIONER: No, he didn't say that. He didn't say inconsistency. He said where the agreement was silent that the award would bubble through and create an obligation. That's as I understood the evidence and not the inconsistency point.
PN426
MS ANDELMAN: Is - - - ?---Yes, that's the case.
**** PAUL SIMON JOBBINS XXN MS ANDELMAN
PN427
So, for example, you wouldn't have a concern about shift payments for afternoon and night work because there is provisions for shift payments or for there to be the inclusion of allowances in the salary. So you wouldn't be concerned about that aspect in the agreement because it's covered. Is that correct?---That's covered by the agreement, I understand, yes.
PN428
So you have no concern about the salary or the payment of allowances applying in the agreement if an award was made?---No, we're happy with the current conditions.
PN429
So, in fact, the company wouldn't need to make any changes to its operation in regard to payment of salary or shift arrangements?---There may be other areas where we need to make changes if the award is - if our agreement is silent.
PN430
But on the area of salary and shift payments it's not silent, is it?---It does specify some, which I assume is enough, but I don't know that - I don't know whether or not the Federal Award would have other areas perhaps in relation to salary or shift allowances that might put extra obligations upon us.
PN431
So you're not sure now whether it's just silent or if there's other issues in the award that may be relevant?---I don't - I don't know all the areas where the award is - where our agreement is silent with respect to the award. And I believe there may be other provisions in the award where our agreement is silent.
PN432
What about specifically in the area - - -
PN433
THE COMMISSIONER: Yes. Sorry.
PN434
MS DOYLE: Commissioner, once again, the witness doesn't have the expertise to, I think, compare the agreement with the award and know exactly what award provisions are going to bubble through.
**** PAUL SIMON JOBBINS XXN MS ANDELMAN
PN435
THE COMMISSIONER: Well, yes and no. I stopped the legal interpretation but your witness has taken a view as to why they oppose this because of the significant hardship on the company. And all the questioning is directed to is what's that going to be. And I think that's fair enough. Yes, Ms Andelman.
PN436
MS ANDELMAN: You say, Mr Jobbins, that the hardship would include fundamentally altering the workplace to ensure compliance with the award. What do you mean by that?---It would mean complying with the award where our agreement was silent.
PN437
Thank you. Is the agreement silent on shift work?---It doesn't specifically refer to shift work but it allows - - -
PN438
I put to you that the agreement specifically provides for extended hours of work?---Yes.
PN439
And the payment for those extended hours of work?---Yes.
PN440
Do you agree with that?---Yes. Is that - is that what the definition of shift work is?
PN441
Yes. It could be characterised as shift work. It could be hours of work - irregular hours of work.
PN442
THE COMMISSIONER: Mr Jobbins, what did you have in mind when you reached that conclusion?---Referring to hardship?
PN443
Yes?---Initially in the work to ensure that we had to - that we did comply with the Federal Award.
**** PAUL SIMON JOBBINS XXN MS ANDELMAN
PN444
Yes. But you've reached a conclusion that it would fundamentally alter the workplace. The hardship would include a fundamental altering in the workplace. What did you have in mind when you reached that conclusion? How would it fundamentally alter?---Well, it would change - I believe by changing the award that sits behind our agreement that that's a fundamental change from a State Award to a Federal Award.
PN445
Yes. And how would that create hardship? What led you to conclude that that would create hardship? What was in your mind?---The fact that there would have to be a lengthy process to ensure that we complied with the Federal Award.
PN446
Yes?---The hardship is involved in the cost to undertake that analysis.
PN447
Have you done that?---No.
PN448
Okay. Thank you.
PN449
MS ANDELMAN: Mr Jobbins, have you compared the provisions of the Clerical Employees Award Queensland to the Telecommunications Services Industry Award?---Not in any great detail.
PN450
Could I take you to your supplementary affidavit. In paragraph 6 you - I will just give you a second to read that. You refer to a conversation you and I had. Are you - do you know if the statement that I say you made - sorry, the statement that I made that you say in regard to the payment of penalty rates, have you checked that that is the case?---I haven't confirmed it since that conversation.
PN451
So you're not aware of any changes or any differences or similarities between the two awards?---Only on a very basic level. No, I'm not - I couldn't offer them to you now.
**** PAUL SIMON JOBBINS XXN MS ANDELMAN
PN452
Can I take you now to your exhibit PJ1, an attachment to your supplementary affidavit. This is a statement that you've provided to all staff - memorandum to all staff. In it you paint a pretty negative picture of the Federal Award, don't you?---I don't think that's necessarily the case.
PN453
Well, you say that staff would be disadvantaged if the award operated.
PN454
THE COMMISSIONER: I'm sorry, where is that said? If you could just point it out to me.
PN455
MS ANDELMAN: On page 2. At the top of page 2.
PN456
THE COMMISSIONER: Yes.
PN457
MS ANDELMAN: "The benefits of the agreement" - - -
PN458
THE COMMISSIONER: Yes.
PN459
MS ANDELMAN: And page 3.
PN460
THE COMMISSIONER: Where does it say they would be disadvantaged, I'm sorry?
PN461
MS ANDELMAN: Well, there's advantages to the agreement.
PN462
THE COMMISSIONER: Yes.
**** PAUL SIMON JOBBINS XXN MS ANDELMAN
PN463
MS ANDELMAN: And on the top of page 3 - - -
PN464
THE COMMISSIONER: Yes.
PN465
MS ANDELMAN: - - - the first two dot points, are disadvantages to being roped-in.
PN466
THE COMMISSIONER: Yes, I understand.
PN467
MS ANDELMAN: Particularly dot point two.
PN468
THE COMMISSIONER: I understand.
PN469
MS ANDELMAN: Do you not agree, Mr Jobbins?---Nowhere do I say, I don't think, that the employees would be disadvantaged.
PN470
Well, page 3, dot point two. Could you read that, please?---"We may lose advantages gained from having the agreement in place as flexibility and simplicity".
PN471
And what are you referring there to when you say "We may lose advantages"?---We, the company, may lose advantages from having a current agreement in place. It provides us with flexibility with simplicity to operate - operate because of it.
PN472
Isn't it the case, though, that the current agreement in 1.3 states that the agreement will operate to the exclusion of awards? If that is the case, then the agreement would continue to operate, would it not?---Yes, it would, but as we've already - if there is silence in our agreement then the award would apply, as I understand it.
**** PAUL SIMON JOBBINS XXN MS ANDELMAN
PN473
Are you aware of any conditions that are better in the award than they are in the agreement?---For who?
PN474
For employees?---In the Federal award?
PN475
In the State award?---From what point of view? From - - -
PN476
Well, I'll put to you that the shift penalties in the State agreement are - - -
PN477
THE COMMISSIONER: State award.
PN478
MS ANDELMAN: Sorry - state awards are higher than they are in the 1800 Operations agreement?---I actually can't recall that now. I haven't looked at it for some time, but our State agreement has much higher base wages than the State award.
PN479
THE COMMISSIONER: Yes. Sorry.
PN480
MS DOYLE: Commissioner, the witness would find that question particularly difficult given that he doesn't have a copy of the Clerical Employees Award in front of him to look at those shift penalty provisions.
PN481
THE COMMISSIONER: Is this a witness that is here to tell me about the agreement? If it is, I understand the point you're making, but - well, perhaps you could illustrate it, Ms Andelman, and demonstrate what you are saying.
PN482
MS ANDELMAN: Mr Jobbins, I put to you that the information that you have provided to employees is misleading, because it doesn't describe correctly what would in fact be the reality if a Federal award was made?---Well, I don't agree. Are you asking me a question?
**** PAUL SIMON JOBBINS XXN MS ANDELMAN
PN483
Yes, I'm asking you a question whether the information that you have provided, having heard everything that you've heard today, whether you stand by it as being a fair assessment of the benefits and detriments to employees if a Federal award was made?---Yes, I stand by it.
PN484
THE COMMISSIONER: Could I ask a question? You say that you understand that the employees are happy?---I do understand that.
PN485
And that understanding arises after they've considered your memorandum, no doubt?---And - yes, and ..... meetings.
PN486
Have you got a copy of your memorandum there?---Yes.
PN487
Could you go to page 2? Could you look at where you say, "Some points to note about the Federal award," in the middle?---Yes.
PN488
"The wage rates are lower than our agreement"?---Yes.
PN489
Is that true of the State award too?---Yes.
PN490
"The loading paid to casuals is lower than our agreement." Is that true of the State award too?---I'm not sure. I think it may be. I'm not sure.
PN491
"The number of classifications compared to your agreement." Is that true of the State award as well?---I don't know how many classifications there are in the State agreement.
PN492
There's a lot. In the State award there's a lot, isn't there?---State award. I'm not sure if there's as many as the Federal award.
**** PAUL SIMON JOBBINS XXN MS ANDELMAN
PN493
And the minimum weekly hours for permanent part-time. Are you able to say whether that's true of the State award as well?---No, I'm not able to say.
PN494
Isn't the point this: that both awards are minima?---Yes.
PN495
And the criticism that you make of the Federal award is also true of the State award, isn't it?---Maybe not exactly the same criticism.
PN496
Well, the rates are lower. The State award doesn't match your business?---No.
PN497
PN498
MS DOYLE: Mr Jobbins, there was some discussion or questions from Ms Andelman in relation to the provisions of the agreement begin silent in respect of some provisions of the Federal award. Does the agreement contain classification provisions such as customer contacts that fall within the Federal award such as customer contract stream, clerical and administrative stream. Sorry. Does the agreement that's in place - - -?---Yes.
PN499
- - - contain such classifications as that are contained in the Federal award such as customer contact stream and clerical and administrative stream? It might be easier if Mr Jobbins had a copy of the Federal award in front of him in answering my question.
PN500
THE COMMISSIONER: Have you got a copy of that?---Sorry, I don't have it with me.
PN501
MS DOYLE: Sorry, did you have a copy of the Federal award?---I don't here, no, sorry.
**** PAUL SIMON JOBBINS RXN MS DOYLE
PN502
I provide Mr Jobbins an extract - - - ?---Thank you.
PN503
- - - of the Federal award. You'll see there that Clause 18 refers to customer contact streams and clerical employee - - -?---And the technical stream, yes.
PN504
- - - streams and to technical streams. Do those classifications - are they the same as the ones that are contained in your agreement?---No.
PN505
Looking at those classifications - - -?---Yes.
PN506
- - - do you regard that your agreement is silent on those classifications as compared to the award?---Yes, we only have one classification, I guess. Yes. So there's - yes.
PN507
If I could take you back to your memorandum, which is PJ1 of the supplementary affidavit. Ms Andelman asked you a question in relation to the second dot point on page 3. Could you read the preliminary phrase - the leading statement at the bottom of page 2 in relation to that dot point, please?---
PN508
At a hearing on Tuesday 3 February we asked the Australian Industrial Relations Commission to reject the CPSUs claim for the following reasons.
PN509
And so what is stated in dot point 2 on page 3 is one of those reasons. Is that correct?---Yes.
PN510
Mr Jobbins, could you please tell us what you believe the purpose of the memorandum was for the employees?---So we could inform the employees of the negotiation of the applications that were to be made, so we could keep the employees informed as to how we were attempting to deal with those applications, and to inform them. That's basically it: to keep the employees informed.
**** PAUL SIMON JOBBINS RXN MS DOYLE
PN511
And have the employees asked you any questions in relation to the contents of this memo?---No.
PN512
THE COMMISSIONER: Anything further? Thanks, Mr Jobbins. Thanks for your evidence.
PN513
THE COMMISSIONER: Yes, Ms Doyle.
PN514
MS DOYLE: Commissioner, I wish to call Mr Michael Simonetti as a witness.
PN515
PN516
MS DOYLE: Mr Simonetti, could you please state your full name and address for the Commission?---My name is Michael Simonetti and I live at Number 1 Albacore Street, Mermaid Waters, Queensland.
PN517
Thank you, Mr Simonetti. And have you prepared an affidavit for today's proceedings?---Yes. Yes, I have.
PN518
Is the affidavit you prepared true and correct?---Yes.
PN519
Do you have a copy of that affidavit with you?---Yes.
PN520
Commissioner, I wish to tender that affidavit.
PN521
THE COMMISSIONER: Please do. Thank you. D5. It will take a while to read, please.
PN522
MS ANDELMAN: Commissioner, we do have objection to - - -
PN523
THE COMMISSIONER: I'm sorry. Yes, what objections do you have?
PN524
MS ANDELMAN: Paragraph 8.
PN525
THE COMMISSIONER: Yes.
PN526
MS ANDELMAN: It is some hearsay evidence about the witness' conversation with 15 employees.
**** MICHAEL SIMONETTI XN MS DOYLE
PN527
THE COMMISSIONER: Yes. What do you say about that - - -
PN528
MS ANDELMAN: We say that it's - - -
PN529
THE COMMISSIONER: - - - Ms Doyle?
PN530
MS DOYLE: Commissioner, we're - it reflects the conversation.
PN531
THE COMMISSIONER: Is it evidence of their views?
PN532
MS DOYLE: It's not evidence of their views, no, Commissioner. It's evidence of Mr Simonetti's conversations with them.
PN533
THE COMMISSIONER: All right. 8 is deleted. Any others?
PN534
MS ANDELMAN: Paragraph 11 is related to paragraph 8 and we would seek that that evidence only relates to the witness.
PN535
THE COMMISSIONER: Ms Doyle, does it fall into the same category?
PN536
MS DOYLE: Yes, Commissioner.
PN537
THE COMMISSIONER: 11 is deleted.
PN538
MS ANDELMAN: I'm sorry, Commissioner, paragraph 9 is also reference to a conversation with other employees.
**** MICHAEL SIMONETTI XN MS DOYLE
PN539
THE COMMISSIONER: What is wrong with that?
PN540
No employee has advised me of any concerns.
PN541
MS ANDELMAN: I'm sorry, yes.
PN542
MS DOYLE: Sorry, Commissioner, if I could take you back to paragraph 11.
PN543
THE COMMISSIONER: Yes.
PN544
MS DOYLE: On behalf of Mr Simonetti he could make that - - -
PN545
THE COMMISSIONER: He could make - - -
PN546
MS DOYLE: So could we have - - -
PN547
THE COMMISSIONER: Deleted.
PN548
MS DOYLE: - - - only the hearsay parts of that deleted and not the whole of that paragraph.
PN549
THE COMMISSIONER: Yes. Only hearsay, yes. Anything else, Ms Andelman?
PN550
MS ANDELMAN: No, thank you, Commissioner.
**** MICHAEL SIMONETTI XN MS DOYLE
PN551
THE COMMISSIONER: All right. Anything you wanted to raise in examination-in-chief?
PN552
MS DOYLE: No, I haven't, Commissioner.
PN553
THE COMMISSIONER: Thank you. Ms Andelman.
PN554
MS ANDELMAN: No, thank you, Commissioner.
PN555
THE COMMISSIONER: Any cross-examination?
PN556
MS ANDELMAN: No.
PN557
PN558
THE COMMISSIONER: You got off scott-free. You can return to your seat?---Thank you.
PN559
THE COMMISSIONER: Is that all the witness evidence? That is all your witness evidence?
PN560
MS DOYLE: Yes, it is, Commissioner.
PN561
THE COMMISSIONER: Do you have some witness evidence?
PN562
MS ANDELMAN: Yes, Commissioner, we have one witness.
PN563
THE COMMISSIONER: Ms May.
PN564
MS ANDELMAN: Yes. May I approach her and ask her if she wishes to take the oath or affirmation?
PN565
THE COMMISSIONER: No, it is all right. My associate can do that. Thank you.
PN566
MS ANDELMAN: Thank you.
PN567
MS DOYLE: Commissioner, may I seek a short adjournment to discuss with my client what's happened in recent times with the union's involvement. I'm not in a position to cross-examine Ms May until I've done that.
PN568
THE COMMISSIONER: Well, why don't we hear the examination-in-chief.
PN569
MS DOYLE: Sure. That would be good. Yes, thank you.
PN570
THE COMMISSIONER: You might be then in a better position to take instructions.
PN571
PN572
THE COMMISSIONER: Please sit down, Ms May.
PN573
MS ANDELMAN: Ms May, could you please state your full name and employment address for the Commission?---It's Margaret Gabrielle May. I prefer to go by Maggie. And my address is Level 1, 97 Creek Street, Brisbane and I work for the CPSU as an organiser.
PN574
Thank you. And as an organiser what are your areas of responsibility?---I work in the communications division and I'm responsible for all areas of that division except for Telstra, which means call centres, ABC, Australia Post and various other parts of the communications division.
PN575
Thank you. Are you familiar with a company called 1800 Reverse Operations?---Yes, I am.
PN576
And could you explain to the Commission how you have come to become familiar with the company?---Yes, we have obviously become aware of the company; that they're running a call centre on the Gold Coast in an area close to some other call centres that we're working in. We've had some communication with the employer and also delivered some information packs to the workplace for the use of the employees. I personally haven't been inside the workplace but the former organiser - I've only just taken over the portfolio - the former organiser apparently has had some contact with the workplace through handing out materials and general discussions with people.
PN577
Thank you. Could I just go back a step and ask how long have you been an organiser with the CPSU?---I've only been an organiser with the CPSU for the - since February, mid-February. So - - -
PN578
Thank you.
**** MARGARET GABRIELLE MAY XN MS ANDELMAN
PN579
THE COMMISSIONER: This year?---This year, yes. Sorry, 2004.
PN580
I see?---Yes, so only about five weeks at this stage. I'm new.
PN581
That's why you still have that fresh look about you?---That's right.
PN582
MS ANDELMAN: Ms May, have you had any contact from an employee from 1800 Reverse Operations?---Yes, I did, on - I just want to go to my diary just so I get the dates correct. On Monday 22 March at about 3.30 pm I had a phone call to our office number from an employee of 1800 Reverse who stated that they were joining the union; that they were becoming a member of the union because they had concerns about the entitlements and the way the business was being - the employees were being treated in the business. And that there was - he was aware of the Commission hearing and asked about the time of the hearing and what the basis of the hearing was, which I explained to him was about the award. And they did know about that, the employees, and had - had discussions amongst themselves and had stated that they would like to be covered by that award because they feel that the current instrument that they're covered by perhaps isn't the best and that they're not - they feel that they would be more - they would have more coverage and more entitlements if covered by a proper award. So - and that was what was expressed to me.
PN583
Thank you?---That was on Monday afternoon.
PN584
Thank you. I have no further questions.
PN585
THE COMMISSIONER: Anything in cross?
PN586
MS DOYLE: Commissioner, if we could seek a short adjournment in relation to that.
**** MARGARET GABRIELLE MAY XN MS ANDELMAN
PN587
THE COMMISSIONER: Of course, I'm sorry. Yes, you wanted to - very, well, I will adjourn for 10 minutes.
SHORT ADJOURNMENT [11.28am]
RESUMED [11.51am]
PN588
THE COMMISSIONER: Yes, Ms Doyle.
PN589
PN590
MS DOYLE: Ms May, you attended the premises of 1800 Reverse Operations Pty Ltd at Burleigh Waters on 4 March of this year. Is that correct?---I think so.
PN591
And at that time you left booklets with a representative of the company in order to be given to the employees. Is that correct?---Yes, that's correct.
PN592
Are you aware that these booklets were then made available to all employees of the company on that day?---No, I am not aware. We were taking the employer's word for it that they would be distributed.
PN593
And are you aware that then again on 8 March at a staff meeting this availability was reiterated to all the employees present?---That was the plan, I believe, that the staff meeting was going to take place.
**** MARGARET GABRIELLE MAY XXN MS DOYLE
PN594
Right. I understand those booklets contained your contact phone numbers - - -?---Well, yes.
PN595
- - - in order for employees to contact you directly?---Our office numbers, yes.
PN596
And from your evidence just earlier I also understand that only one employee has contacted you?---So far, yes.
PN597
Yes. So the booklets were made available to that employee on 4 March and then you received a phone call on 22 March - - -?---I believe so. Well, if they were made available it probably was 8 March, I think, was when your staff meeting was going to be one.
PN598
That's correct?---And, yes, I received the phone call on 22 March.
PN599
Yes. And then you've only received a call you say from one person?---Well, I have only personally received a call. We also have a call centre in the union which - a 1300 number, so many people do use that call centre to get initial information. So I can't tell - I can't state whether anyone has rung that call centre, no.
PN600
But no one has called you - - -?---No, not personally. No.
PN601
No one else?---Mm.
PN602
And so that was a telephone conversation?---Yes.
PN603
You didn't meet with that employee?---No, I have not yet met with that person.
**** MARGARET GABRIELLE MAY XXN MS DOYLE
PN604
You weren't able to then show that employee a comparison with the Federal award as compared to the agreement?---No, I directed them to our web site to have a look at it, because we have all the things on the web site.
PN605
And it's a fairly lengthy award, isn't it?---Well, not as big as some, but it's fairly standard. 20 allowable matters, as they say.
PN606
Yes, that's right. It is 83 pages long?---Mm.
PN607
So you didn't obtain after that conversation any statutory declaration - - -?---No.
PN608
- - - or any piece of correspondence from the employee?---No. I haven't had any further correspondence from the employee as yet, no.
PN609
So having only spoken on the phone to one of those employees you don't really know the views of the other employees first hand, do you?---No. No, I don't. Only from what I was told by the single employee.
PN610
THE COMMISSIONER: Thank you. Any re-examination?
PN611
MS ANDELMAN: No, Commissioner.
PN612
PN613
THE COMMISSIONER: That's the evidence. Right. Mr Doyle?
PN614
MS DOYLE: Commissioner, I've been instructed that given Ms May's evidence that she was - she had referred to the views of other employees and would seek that we could recall Mr Simonetti in order for me to clarify those views. They seemed to be expressed to Ms May and clarify the views that Mr Simonetti has received.
PN615
THE COMMISSIONER: Why don't I ask them myself? The employees, I mean? I have in the past said that I'd conduct a secret ballot. But I'd be interested in the views of the parties about that course because bear in mind this is only the dispute finding stage. What do I ask them at the dispute finding stage so that they can make an informed decision that then helps me in deciding whether or not I should cease dealing with it in the public interest? What evidence have we got? Your witness can't help me as to any detriment to the company. His evidence is vague and uncertain, so I don't have any evidence from the company as to detriment.
PN616
I don't have any direct evidence from employees, and even if the evidence was relevant at the dispute finding stage as to the impact of the award, it may not even be relevant. So I'd be interested to hear from you, Ms Doyle, as to what is relevant for me to obtain - what relevant information should I obtain from employees about whether or not a dispute ought be found, because that's all we're here to agitate? Now, admittedly, down the track the union has made it quite clear they'll move to have an award made and there have been some issues raised this morning about the impact of that.
PN617
The letter sent out is misleading by Mr Jobbins. It virtually invites employees to reach a conclusion that if they have a Federal award their wage rates will be reduced. That's misleading. It's not true. There are a whole range of things that - I'm just a little uncertain as to what public interest considerations I consider in the dispute finding stage. So do you want an adjournment to consider what I would put if I did a secret ballot? That's what I have done in the past, although it was in the award making stage where the employer has asserted that it was best left to the State award rather than the Federal award.
PN618
Now, one thing I can do is I can have this transcript produced; it can be circulated to all employees and I'll say, "There you go. Have a think about whether or not you want a dispute found." I'll adjourn for 10 minutes to allow you to get some instructions, and you might think about that question too, Ms Andelman. The matter is adjourned for 10 minutes.
SHORT ADJOURNMENT [11.59am]
RESUMED [12.24pm]
PN619
THE COMMISSIONER: Yes, Ms Doyle.
PN620
MS DOYLE: Commissioner, you won't find it surprising that we were not able to come up with a definite question for you to put to the employees for a secret ballot. Accordingly, I have proposed a course of action whereby we correspond with Ms Andelman in trying to propose a suitable question in respect to whether a dispute finding should be made.
PN621
THE COMMISSIONER: Yes, all right. Ms Andelman?
PN622
MS ANDELMAN: Just in regard to that matter, Commissioner, we don't believe that there is a practical question that can be asked - - -
PN623
THE COMMISSIONER: Yes.
PN624
MS ANDELMAN: - - - because there is no practical changes to employees' conditions that would result from a dispute finding being made, and that's because a dispute finding is a constitutional matter rather than an issue to do with employee entitlements. It doesn't per se give any additional rights or responsibilities to employees or take away rights and responsibilities. It doesn't give any additional rights or responsibilities to the union. For example, no right of entry with a dispute finding.
PN625
THE COMMISSIONER: What do you say is not in the public interest if I cease dealing with it? Why is that not in the public interest?
PN626
MS ANDELMAN: Well, the public interest in this matter should be one that is based on the views of employers and - - -
PN627
THE COMMISSIONER: The views of employees?
PN628
MS ANDELMAN: Employees and employer.
PN629
THE COMMISSIONER: Yes.
PN630
MS ANDELMAN: I'll start from there, and I think the issues that you've heard evidence on are relevant. For example, it's about the actual conditions in the workplace about whether there is any benefits or detriment wherever there would be detriment - - -
PN631
THE COMMISSIONER: That's not raised on a dispute findings, is it?
PN632
MS ANDELMAN: Well, it may be. Those issues may be relevant in a dispute finding, although we say - well, they're not because there's no practical - - -
PN633
THE COMMISSIONER: No.
PN634
MS ANDELMAN: - - - effect on those in the dispute finding.
PN635
THE COMMISSIONER: But, you see, the legislation provides that I must cease dealing with the matter, an industrial dispute:
PN636
...dismiss, in whole or in part, of a matter to which an industrial dispute relates, refrain from further hearing or determining an industrial dispute.
PN637
Ms Doyle raised earlier on the question of onus, normally, an unhelpful issue to spend too long on, questions of onus but, in this case, the bookmark being put in, "We object pursuant to Section 111AAA. We have a State enterprise agreement", what issues do I consider that would persuade me to keep dealing with it because, to cease dealing with it, would not be in the public interest.
PN638
MS ANDELMAN: There here is, like I say, it - I mean, obviously, the issue is public interest, Subsection 2, and the matter of industrial dispute must be taken in consideration of the role it plays in the Act - - -
PN639
THE COMMISSIONER: Yes.
PN640
MS ANDELMAN: - - - the process of industrial regulation. Having an industrial dispute is - - -
PN641
THE COMMISSIONER: Facilitates the making of a subsequent award or orders.
PN642
MS ANDELMAN: That's correct and, in considering the public interest, the Commission must take into account possible subsequent orders, as well as the objects of the Act and, particularly, the objects of the Section - of the division, Section 88A(a).
PN643
THE COMMISSIONER: Yes?
PN644
MS ANDELMAN: And that is - the part is in the objects of the Act, Section 3, is about having a minimum safety net, a minimum award safety net.
PN645
THE COMMISSIONER: Well, they've got that.
PN646
MS ANDELMAN: Well, the company is in the telecommunications industry, and there is only one award covering the telecommunications industry.
PN647
THE COMMISSIONER: Federally.
PN648
MS ANDELMAN: Yes.
PN649
THE COMMISSIONER: Yes. But they've got that in the State system. They've got an award to which they say they are bound.
PN650
MS ANDELMAN: Well, it's the Clerk Award. There is no telecommunications industry award at the State level.
PN651
THE COMMISSIONER: Yes.
PN652
MS ANDELMAN: There is one award operating at the Federal level, and it is proper for the company to be bound by an award that covers other employers in their industry and their competitors.
PN653
THE COMMISSIONER: So you say the conclusion about award coverage is determinative of whether a dispute is found?
PN654
MS ANDELMAN: It is a factor that the Commission must consider in the public interest in terms of the possible consequences of having a dispute found.
PN655
THE COMMISSIONER: Isn't that pre-empting the application for an award?
PN656
MS ANDELMAN: No, because you have to hear the application on its merits, whether it is an proper award, whether it's suitable or if it fits the industry and, I mean, obviously, there are - - -
PN657
THE COMMISSIONER: Isn't that the grounds you've just asked me to find the dispute.
PN658
MS ANDELMAN: Well, they are relevant factors, but they're not the only factors. They're not the only factors.
PN659
THE COMMISSIONER: Yes. What else?
PN660
MS ANDELMAN: In terms of the public interest, the Commission should also consider the definition of "industrial disputes" and whether, in fact, that is - if there's any relevance in that definition for this matter. Part of the submission by the company does go to the issue of an industrial dispute within the meaning of the Act, and we say that that is something that the Commission should consider, whether there is - - -
PN661
THE COMMISSIONER: It hasn't got any legs on it, though, that submission, has it?
PN662
MS ANDELMAN: No. It doesn't.
PN663
THE COMMISSIONER: No.
PN664
MS ANDELMAN: But that is something - - -
PN665
THE COMMISSIONER: I didn't apprehend it was going to be pressed.
PN666
MS ANDELMAN: Well, I think it was pressed in the written submissions.
PN667
THE COMMISSIONER: Yes.
PN668
MS ANDELMAN: But, clearly, as is stated in Section 111AAA(2), primary consideration must be given to the views of employees and the views of the employer.
PN669
THE COMMISSIONER: Yes.
PN670
MS ANDELMAN: Now, you have heard some evidence - you have heard some evidence about that from the employer - - -
PN671
THE COMMISSIONER: Yes.
PN672
MS ANDELMAN: - - - directly, and from employees indirectly to, at least, know that there is - - -
PN673
THE COMMISSIONER: There's nothing I can rely on about the views of employees, is there?
PN674
MS ANDELMAN: Well, you have heard evidence that one employee - - -
PN675
THE COMMISSIONER: Yes.
PN676
MS ANDELMAN: - - - at least from the company contacted the union and stated that they're unhappy with their current conditions and want to know more about - - -
PN677
THE COMMISSIONER: Yes, but I upheld your objection against the employer's witness statement that was in the same category, wasn't it, that some employees said they're very happy.
PN678
MS ANDELMAN: Well, that may be the case that some employees - - -
PN679
THE COMMISSIONER: Well, I struck it out.
PN680
MS ANDELMAN: Well, there was no objection to that question, nor to that answer.
PN681
THE COMMISSIONER: I know. But I just wonder how it helps me.
PN682
MS ANDELMAN: Well, you have some evidence that a phone call was made.
PN683
THE COMMISSIONER: Yes.
PN684
MS ANDELMAN: That Ms May spoke to an employee of the company.
PN685
THE COMMISSIONER: Yes.
PN686
MS ANDELMAN: Why would an employee of the company ring the union if they were happy with their arrangements so - - -
PN687
THE COMMISSIONER: Yes, but my concern is, for me to understand the views of employees, I've also got to be satisfied that they properly understand what it is they're being asked.
PN688
MS ANDELMAN: Yes. And this issue, in all practical facts, is about whether there should be a State award or a Federal award applying and, perhaps, based on the views of employees on that question, the question would be in a better position to determine whether a dispute should be found. Perhaps the matter should - - -
PN689
THE COMMISSIONER: Well, I think that's confusing the two. There are many dispute findings that don't give rise to the making of an award. It might. I mean, it evokes a desire on behalf of the union to have an award made, but it doesn't automatically follow that an award will be made. I mean, 111AAA can be raised again - - -
PN690
MS ANDELMAN: Well, that's correct, Commissioner.
PN691
THE COMMISSIONER: - - - following the finding of a dispute.
PN692
MS ANDELMAN: And I do have a case that does go to that issue in regard to whether an award should be made, and what grounds the Commission should consider whether to refrain from further hearing on the grounds of public interest. It's a decision of Transport Workers' Union v AAA Tours Pty Limited and Others, print number Q0561.
PN693
THE COMMISSIONER: Does that go to 111AAA, does it?
PN694
MS ANDELMAN: It does.
PN695
THE COMMISSIONER: Yes.
PN696
MS ANDELMAN: The facts in this case are that there is in place a State award in the State of Western Australia, I believe, and the union makes an application for a Federal award, and the matters that the Commission considers in coming to their view that there is, in the public interest, a need for a Federal award is on page 4 of that decision, and that's the - at the page - at the bottom of page 4, four dot points. The first one deals with the issue of whether there is an industry State award.
PN697
THE COMMISSIONER: Yes.
PN698
MS ANDELMAN: The second one deals with a comparison of the State and Federal awards, and whether the Federal award would adversely impact upon the company. The third issue deals - the third dot point deals with union membership, and the fourth deals with the desire of employees. Now, in that case, the employer was opposed to the Federal award and there was no certified agreement in place. So the issues there as I think are relevant to this particular case is whether there is a State counterpart of an industry award, how the making of an award may impact on the employer and employees, and the views of employees and the employer are some of the issues that need to be taken into account.
PN699
I can't think of a question to put to employees that would have any practical consequence for them to ascertain their views directly on whether a dispute finding should or should not be made. I think that may be appropriate in the making where they decide whether the Commission should refrain from dealing with the matter for a roping-in application, but that's not the matter before you. And we say that the decision should be based on the evidence and the submissions that you've heard today.
PN700
THE COMMISSIONER: Thank you. Ms Doyle?
PN701
MS DOYLE: Commissioner, first of all, if I might step back a little while and refer you to the provision in one of those decisions where the Full Bench has found that the union has the onus of proof in relation to finding. Would you like that reference?
PN702
THE COMMISSIONER: Yes, thank you.
PN703
MS DOYLE: In the decision of Verrier trading as Rockingham Veterinary Clinic and Another v APESMA of 20 October 2000 on page 10 at paragraph 41 - - -
PN704
THE COMMISSIONER: Which one was that, I'm sorry? Which decision?
PN705
MS DOYLE: Sorry, Verrier.
PN706
THE COMMISSIONER: The one you handed up to me, wasn't it?
PN707
MS DOYLE: That's right.
PN708
THE COMMISSIONER: Yes. Sorry.
PN709
MS DOYLE: Page 10.
PN710
THE COMMISSIONER: Yes.
PN711
MS DOYLE: Paragraph 41.
PN712
THE COMMISSIONER: Yes.
PN713
MS DOYLE: It refers to the AMIEU decision and the Full Bench's comments.
PN714
THE COMMISSIONER: Yes, I follow. Thank you.
PN715
MS DOYLE: I would also like to refer you to the objects of the Act, Commissioner, especially those in Sections 3 and Part VI of the Act and submit that the Commission is obliged to consider these in determining this matter if it is so determined from today's proceedings. This once again was referred to in that decision of Verrier trading as Rockingham Veterinary Clinic v APESMA wherein the Full Bench said:
PN716
A reading of these sections shows that in addition to objects relating to an award safety net ...(reads)... workplace or enterprise level upon a foundation of minimum standards.
PN717
Likewise, with respect to Part VI of the Workplace Relations Act, there is an object that the Commission's function and powers in relation to making and varying awards are performed and exercised in a way that encourages the making of agreements between employers and employees at the workplace or enterprise level.
PN718
THE COMMISSIONER: All that can be done at the Federal system as a State system. The key word is Object 3C, isn't it? "Whether or not that form is provided for by this Act."
PN719
MS DOYLE: Sorry, I didn't hear you. Sorry.
PN720
THE COMMISSIONER: 3C, the last words: "Whether or not this is provided for by this Act."
PN721
MS DOYLE: Yes, that's right.
PN722
THE COMMISSIONER: "Whether or not that form is provided for by this Act." That's the impact of the submission that you put. It can be done by some other piece of legislation but - or even an over award agreement.
PN723
MS DOYLE: Yes.
PN724
THE COMMISSIONER: I'm still not assisted as to how, in determining the public interest, I must give primary consideration to the views of employees. What question do I put to them? What's their view? Now, I've asked Ms Andelman what does she say is in the public interest, or why I should be satisfied that ceasing would not be in the public interest, rather. Let me put it that way. And she's referred to a couple of matters. Are those matters that I put to employees by way of question?
PN725
MS DOYLE: What we put to employees will, of course, have to be clear and - - -
PN726
THE COMMISSIONER: Indeed.
PN727
MS DOYLE: - - - that's why I seek some time to consider that particular question. And I think I'd also like to say that we shouldn't discount the evidence of Mr Simonetti in that he has - that part of his affidavit has not struck out, that he is happy with the current arrangement. So you do have the view of one employee so far. And no employees - - -
PN728
THE COMMISSIONER: But is that a ground for not finding an industrial dispute? That you're happy with your current arrangements? That might be a ground for not making an award, but is it a ground for not finding a dispute?
PN729
MS DOYLE: Well, I would have thought it's a ground for the Commission deliberating as to whether it should cease dealing with the matter before an industrial dispute is found.
PN730
THE COMMISSIONER: Yes. What, that if you find one I'm convinced that you'll regulate the area by way of an award and I'm quite happy with the arrangements that apply to me?
PN731
MS DOYLE: In subsection (2) having regard to the primary considerations and the views of both employees and the employer as to whether the Commission should cease dealing with the dispute whether it has been found or not.
PN732
THE COMMISSIONER: Yes, at this stage. But the Act permits you to say that I should cease dealing with it. And then as you say that Ms Andelman has got to persuade me that unless the Commission is satisfied that to cease dealing would not be in the public interest. Now, she's expressed some views about that, but they go to the award-making power of the Commission. Now, you can probably go back further and say, well, ordinarily a union is entitled to the benefit of an award if it's had a dispute found, and then the presumption falls upon those seeking to displace that entitlement. But Section 111AAA does displace that entitlement. Now, what do I say? That I'm none the wiser but better informed?
PN733
MS DOYLE: Looking at the public interest tests having primary consideration of the views of the employees and employers, we've sought to provide those views and - - -
PN734
THE COMMISSIONER: Well, I haven't got the views of the employees. I've got the view of the employer, and that view is an uncertain view.
PN735
MS DOYLE: And the view of the employee.
PN736
THE COMMISSIONER: And a view of one employee. The view of the employer is I think it would be bad for us. Where? How? Why? Don't know.
PN737
MS DOYLE: Commissioner, can I take you back to this decision, which I am looking at quite a bit this morning, of Verrier trading as Rockingham Veterinary Clinic. In looking at whether in determining Section 111AAA matter the Full Bench considered the comments or the statements made by both employers and employees in looking at the written statement of Ms Verrier as proprietary manager of the company. On page 8 of the decision she talks about the company which is to continue with the current arrangements as set out in the workplace agreements. That is a view of the employer, and that view my client shares; that they wish to continue with the current arrangements that are in place.
PN738
THE COMMISSIONER: Well, the Full Bench may have been satisfied that that represented the views of the employees. I've got other facts before me that I don't know what views they hold and I've got some material that seeks to influence their view which I've concluded is misleading.
PN739
MS DOYLE: Sorry, I was talking about the views of the employer. In considering the views of the employer.
PN740
THE COMMISSIONER: Yes.
PN741
MS DOYLE: The employer has in - sorry. Mr Jobbins has in his affidavit and supplementary affidavit put forward the view, at least in his supplementary affidavit, that he wishes to continue the current arrangements and - - -
PN742
THE COMMISSIONER: And why?
PN743
MS DOYLE: - - - and he has sought to do that.
PN744
THE COMMISSIONER: But why does he wish to continue with the current arrangements under his affidavit? Why do you say he wishes to do that?
PN745
MS DOYLE: Because he considers that having a Federal award come in and affect the employees, albeit it won't - - -
PN746
THE COMMISSIONER: Well, he doesn't know. He simply doesn't know. So he hasn't got - he hasn't given me any evidence as to his belief why he's concerned. He simply doesn't know. Does he, from his evidence?
PN747
MS DOYLE: Without looking at transcript, Commissioner, I probably can't say that - - -
PN748
THE COMMISSIONER: Well, he was questioned on it as to what's the problem. I asked the question, "Have you looked at the Federal Award?" He was asked about that. "Have you done a comparison?" He's apprehensive that something may bubble up and to apply. What is that? He doesn't know.
PN749
MS DOYLE: He - I think there was some - there was obviously some discussion about how the agreement would affect or it would stay in place until the expiry date, etcetera, and there was something about that. And I think there might have been some confusion as a result of those discussions, but the - - -
PN750
THE COMMISSIONER: No, but his point was valid in the sense if there's no inconsistency it may well bubble up. I mean, I think that's a genuine matter for consideration.
PN751
MS DOYLE: Yes.
PN752
THE COMMISSIONER: But where he doesn't know. How or on what conditions of employment?
PN753
MS DOYLE: But that raising uncertainty for the employer of future arrangements.
PN754
THE COMMISSIONER: But I don't - I don't - it's hard for me to find - I suppose it's not. I can find uncertainty but is it reasonably based? That's the only concern that I have. I don't know. I guess I have to think about whether or not the threshold which you say should exist, namely whether Ms Andelman has persuaded me that to cease dealing with the matter would not be in the public interest. That is what it comes down to. And then I have - well, in determining that I have to - I must - I must, it says, give primary consideration to the views of employees. So I'm not sure what I ask them.
PN755
Look, I'm content for you both to reflect on it. It troubles me as to what I - I think I should. Ms Andelman says it's a constitutional fact. Well, that's true, but it can be defeated by the application of 111AAA. And what do I ask them? I'm only in the process of finding an industrial dispute. This doesn't mean that an award will be made. This doesn't mean that the agreement will be displaced. It may, but it doesn't automatically follow. It may mean that an award is made. It may mean that that award is then used for the purposes of the no-disadvantage test.
PN756
The problem with this is it then assumes a level of understanding of employees as to what all that means, which is quite different from the sort of things that we here could look at and - and I wouldn't want to be highlighting any issues, such as the 24 hour, seven days a week, 10 per cent on $15 that's open to the employer under the agreement. So I'm happy to give you 14 days to reflect on my dilemma. You can do nothing, of course, and say, "Well, it's up to you". And, of course, it is. But if you want to contribute anything I'm happy for you to do so. Ms Andelman, are you content to that course as well?
PN757
MS ANDELMAN: Commissioner, I responded to your question on that issue but - - -
PN758
THE COMMISSIONER: Yes.
PN759
MS ANDELMAN: - - - there are other matters - that was not my full submission.
PN760
THE COMMISSIONER: Oh, I'm sorry.
PN761
MS ANDELMAN: But - - -
PN762
THE COMMISSIONER: There are other matters in relation to the public interest, are there?
PN763
MS ANDELMAN: There are other matters in the submission that I wish to refer to. On the matter of public interest there are matters that I wanted to refer to that - in regard to the case that my friend referred to.
PN764
THE COMMISSIONER: Well, what are they?
PN765
MS ANDELMAN: Well, in regard to the case that has been referred to, firstly - - -
PN766
THE COMMISSIONER: The Full Bench matter?
PN767
MS ANDELMAN: Yes, that's correct.
PN768
THE COMMISSIONER: Yes.
PN769
MS ANDELMAN: The Verrier v APESMA matter.
PN770
THE COMMISSIONER: Yes.
PN771
MS ANDELMAN: First of all in that case the union called no evidence and that was considered by the Full Bench in coming to their decision. And, secondly, in that case the Full Bench did not strike out the dispute finding. So the dispute finding, in fact, has stayed - continues in place between those parties but the Federal Court - Federal Commission - I will take that back. The Full Bench of the Commission sought to not proceed with any other matter in relation to the dispute finding. That's the two points I wish to raise in regard to this case - - -
PN772
THE COMMISSIONER: Yes.
PN773
MS ANDELMAN: - - - specifically, but there are other matters.
PN774
THE COMMISSIONER: What are the other matters?
PN775
MS ANDELMAN: Well, the other matter, Commissioner - first of all I do want to put on transcript our opposition to the issue of - that there is no industrial dispute as defined in Section 4 - - -
PN776
THE COMMISSIONER: All right.
PN777
MS ANDELMAN: - - - in case this matter does go further.
PN778
THE COMMISSIONER: I don't need you to address on that. There's a common controversy of a number of employers that you've served and it has an interstate character.
PN779
MS ANDELMAN: Thank you. And also on the grounds of public interest as stated in the submission in regard to the considerable hardship and the fundamental alteration of the structure, we say that that, in fact, is not the case based on Section 152 of the Act; that the agreement would continue to operate until it was terminated and that could be beyond its three year expiry date. So that there would not be any hardship, in fact, or a need to restructure the operations.
PN780
THE COMMISSIONER: Well, do you concede that there would be if 152 didn't exist?
PN781
MS ANDELMAN: I'm sorry?
PN782
THE COMMISSIONER: Do you concede that there would be hardship?
PN783
MS ANDELMAN: No. No, I can't see any based on Section 152.
PN784
THE COMMISSIONER: Well, say 152 didn't exist, do you concede that there would be hardship?
PN785
MS ANDELMAN: If Section 152 didn't exist, yes.
PN786
THE COMMISSIONER: Yes.
PN787
MS ANDELMAN: There would be a need for the employer to make sure that they were complying with the award. So I don't - I don't think there would be - there may be hardship but what it would require is the employer going through and comparing the current agreement to the award. Yes, that would need to take place.
PN788
THE COMMISSIONER: Yes.
PN789
MS ANDELMAN: So that would require some time and effort. Whether the employer would, in fact, have to pay additional entitlements that are in the award, well, yes, I think there would be from the reading of the award. But that is not the case with Section 152. So that when considering the public interest you must consider the grounds that the company has included in their submission. The company has pointed the Commission's attention to a number of matters that they say are in a public interest and that is from paragraph 19 - paragraph 19 and paragraph 20 of their submission. And we say that, in fact, it's wrong. It is incorrect, those submissions. There would not be any considerable hardship if a dispute was found between the parties.
PN790
THE COMMISSIONER: A dispute is something that continues. Your submission to me, as I just understand it, "Well, there won't be any hardship for two years and then there will be".
PN791
MS ANDELMAN: No, because there would be no - if a dispute was found on its own - - -
PN792
THE COMMISSIONER: Yes.
PN793
MS ANDELMAN: - - - there would be no - and if there's no application for a Federal award - - -
PN794
THE COMMISSIONER: Yes. So what's the relevance of 152?
PN795
MS ANDELMAN: Well, what I'm referring to is the submissions of the company.
PN796
THE COMMISSIONER: Yes.
PN797
MS ANDELMAN: And they say there would be considerable hardship and we say there wouldn't be.
PN798
THE COMMISSIONER: Yes. At the dispute finding stage.
PN799
MS ANDELMAN: Yes.
PN800
THE COMMISSIONER: yes.
PN801
MS ANDELMAN: So that the matters you need to consider in the public interest are the matters that the company has brought to your attention as well as the matters that the union has brought to your attention. And the matters that the company has brought to your attention, we say, are incorrect. And that is that go to the issue of altering conditions, requiring the company to familiarise itself with the award and fundamentally alter the structure of the business. Now, if you agree with our submission that, in fact, that is incorrect, then the company has made no valid or correct submissions on the issue of public interest.
PN802
THE COMMISSIONER: Does it have to?
PN803
MS ANDELMAN: Well, we say they do.
PN804
THE COMMISSIONER: Don't I have to form the view - doesn't it say that I must cease dealing with it unless I formed the view to do so would not be in the public interest.
PN805
MS ANDELMAN: Yes.
PN806
THE COMMISSIONER: It's a directive.
PN807
MS ANDELMAN: Yes.
PN808
THE COMMISSIONER: So I must form the view that it would not be in the public interest. It's not sufficient for me, simply, to say that the matters that the employers raised give no grounds - no public interest grounds, is it?
PN809
MS ANDELMAN: No. No, but it is one of the matters. You have to satisfy yourself that it would not be in the public - that ceasing would not be in the public interest.
PN810
THE COMMISSIONER: Yes.
PN811
MS ANDELMAN: The company has asserted that - well, has identified what the public interest is in regard to their perspective.
PN812
THE COMMISSIONER: And none of those are relevant.
PN813
MS ANDELMAN: No. Well, not only are they not relevant, they're not correct.
PN814
THE COMMISSIONER: Yes. I follow.
PN815
MS ANDELMAN: I don't think they're not relevant. I think they may be relevant. I think, in this particular circumstance in this dispute, they're not correct.
PN816
THE COMMISSIONER: I'm yet to understand why concern about an award is relevant at the dispute finding stage. I mean, that's going to be the next stage, but the employer can raise 111AAA again in relation to that.
PN817
MS ANDELMAN: And that's what we say is appropriate for the Commission to deal with, the kind of matters. Both the submissions and the evidence from both parties go to that issue. I mean, clearly, if you examined the historical development of the paper dispute and the way the award-making process is made, you must have a broad view, must have that broad consideration of this particular matter in relation to other matters that may or may not follow as a result of your decision, and the paper dispute is the way the engagement of the Commission powers are initiated. It does not, in itself, provide additional rights or responsibilities, and it's a procedural step, and so one must have regard to the aim of that process and, clearly, the aim - - -
PN818
THE COMMISSIONER: But this is a more powerful provision that 111(1)(g).
PN819
MS ANDELMAN: Well, the issue is whether the Commission's power should not be engaged with section 111(1)(g), whether the Commission should - - -
PN820
THE COMMISSIONER: Indeed.
PN821
MS ANDELMAN: - - - walk away from this dispute.
PN822
THE COMMISSIONER: And under 111AAA I've got to be satisfied if the Commission walked away that would not be in the public interest, as opposed to 111(1)(g), that further proceedings are not necessary or desirable in the public interest.
PN823
MS ANDELMAN: Well, I think the major difference between the two is Section 111(2), which is something that's not - - -
PN824
THE COMMISSIONER: Well, I think it's more fundamental than that - - -
PN825
MS ANDELMAN: - - - directly relevant.
PN826
THE COMMISSIONER: Because 111AAA commands the Commission to cease dealing with a matter unless it forms a positive view that to do so would not be in the public interest.
PN827
MS ANDELMAN: Yes. And what we say is that the public interest is something that you must consider in terms of the broader role of the Commissioner.
PN828
THE COMMISSIONER: Oh, I see. I see. That the finding of a dispute provides an opportunity for you to get an award, and that award is the - what you say, the only award in Australia that covers this type of employment and you should - - -
PN829
MS ANDELMAN: Yes.
PN830
THE COMMISSIONER: - - - be given that opportunity to argue it on its merits.
PN831
MS ANDELMAN: That's right, and for this section to be considered, if raised at that time, as that will provide a positive opportunity and a real opportunity for employees' views to be considered by - - -
PN832
THE COMMISSIONER: I must consider them now.
PN833
MS ANDELMAN: Well, you do. You do, and you have heard some views. You've heard the views of a team leader or a manager in the call centre. You've heard from a financial controller of the company, and you've heard the views from a union official about her conversation with an employee. Obviously, there are some employees who would like for there to be a Federal award, and the views of the employer is that they don't seek the award. But this - - -
PN834
THE COMMISSIONER: Well, I'm not sure there's anything that I can make a very safe finding on from what I've heard either way in relation to that.
PN835
MS ANDELMAN: Well, I think, clearly, the submissions of the company are that they seek that you refrain from making a dispute finding, and the grounds on which they say that are in paragraph 19 and 20.
PN836
THE COMMISSIONER: Yes.
PN837
MS ANDELMAN: And that is something that the Commission should consider.
PN838
THE COMMISSIONER: All right. Are there any other public interest grounds that you - - -
PN839
MS ANDELMAN: No, Commissioner.
PN840
THE COMMISSIONER: No? That all. Anything you wish to respond?
PN841
MS DOYLE: Thank you, Commissioner. In those submissions that public interest - those public interest considerations are dealt with under the application under Section 111AAA are not, as I understand, in the finding of a dispute - of an industrial dispute, and if I could just say, for the record, that we don't agree that those provisions in paragraphs 19 and 20 are incorrect, in that the operation of Section 152 arguably would allow, or does allow, those provisions of the award, if the award was in place, will apply to the employees to, as we said before, bubble through and affect the wages and conditions of employment of those employees, also, that the certified agreement that is currently in place is - it's nominal expiry date is November of next year, which is not too far away at all, and we submit, once that has expired, of course it opens up to either party to seek - or even before expiry, to seek a replacement certified agreement. Should a replacement certified agreement be sought, it will, of course, be sought in the context of the Federal Telecommunications Award, and not under the current award - - -
PN842
THE COMMISSIONER: Yes.
PN843
MS DOYLE: - - - which would then cause hardship to the company in considering - - -
PN844
THE COMMISSIONER: There's no evidence for that. It's an assertion that it would cause hardship. There is no evidence, unless I've missed something.
PN845
MS DOYLE: In clarifying my submissions, Commissioner - I just sought to do that, the written submissions.
PN846
THE COMMISSIONER: Which - the ones that - - -
PN847
MS DOYLE: The written submissions of clause 20 which are being disputed.
PN848
THE COMMISSIONER: Yes. But it says:
PN849
It will cause 1800 Reverse considerable hardship.
PN850
And there's no evidence as to that.
PN851
It may alter the classifications.
PN852
Yes, there is evidence in relation to that. It may.
PN853
It will require 1800 to review and familiarise itself with the areas of differences.
PN854
I accept that. Whether that's important or not, I don't know.
PN855
And it will require to fundamentally alter the structure of its business.
PN856
There's no evidence of that. Now, you sought to engage about, do you have this classification, but whether or not the agreement and the definition of the work provides an inconsistency, I don't know. The classification may not bubble through if there is an inconsistency as to the description of work, so there's nothing before me that helps me understand that in any way. So in the dispute finding stage I've got some thinking to do. In the practical award making stage we can grasp hold of something, but I'm not sure about it in the dispute finding stage. There's no authorities, is there, on the dispute finding stage that you're familiar with?
PN857
MS DOYLE: In order to look at the views of the employees and employers - - -
PN858
THE COMMISSIONER: Yes, as to what matters should be put to them in relation to that.
PN859
MS DOYLE: I don't have anything before me, Commissioner, but I would - - -
PN860
THE COMMISSIONER: No. You're not aware of any - - -
PN861
MS DOYLE: - - - like to seek some sort of guidance from decisions in the next 14 days that may assist the process.
PN862
THE COMMISSIONER: Yes, of course. Ms Andelman, you have one?
PN863
MS ANDELMAN: I apologise. This is most improper, but in the - - -
PN864
THE COMMISSIONER: I'm seeking both of your assistance at the moment. It's not an easy question.
PN865
MS ANDELMAN: In the company's submission they assert that in fact an application for a roping-in award has been made on the company.
PN866
THE COMMISSIONER: Has it?
PN867
MS ANDELMAN: I didn't think that that was the case.
PN868
THE COMMISSIONER: But it has?
PN869
MS ANDELMAN: But I do have a copy of a letter that was faxed to the company on 3 December, which is the date that is in the company's submission, but I only have the covering letter with me.
PN870
THE COMMISSIONER: Is that foreshadowing the making of an application or is it a copy of the application?
PN871
MS ANDELMAN: It is a copy of a draft application and an application.
PN872
THE COMMISSIONER: Copy of a draft application?
PN873
MS ANDELMAN: Yes, attached to the letter.
PN874
THE COMMISSIONER: Yes.
PN875
MS ANDELMAN: The letter states:
PN876
Please find attached notification of alleged industrial dispute relating to a log of claims. The notification is also accompanied by an application to make 1800 Reverse Operations a party to the Telecommunications Service Industry Award.
PN877
THE COMMISSIONER: Well, should the question simply be should the union be given an opportunity to argue that? I don't know. I don't want to put it in a pejorative way at all, but these people need to be informed. If you had some of the employees sitting in the back listening to this they'd walk out in complete confusion.
PN878
MS ANDELMAN: Well, I think you can only ask that if you actually explain the difference; what in practical terms that would mean. In practical terms that would mean the difference in the conditions between the State and the Federal award, apart from other consequences. And perhaps - - -
PN879
THE COMMISSIONER: In practical terms it changes the no-disadvantage test.
PN880
MS ANDELMAN: Yes.
PN881
THE COMMISSIONER: And the jurisdiction in which it's applied.
PN882
MS ANDELMAN: Yes. However, Commissioner, perhaps your deliberations may be made easier if the union had made an application so that the matter that you were dealing with was in fact an application for a dispute finding and an roping-in award at the same time.
PN883
THE COMMISSIONER: Well, I don't know. There's always some reluctance to do those sorts of things in the same hearing because you can question the advocate as to whether or not there's a genuine dispute.
PN884
MS ANDELMAN: Well, that's a matter that we could deal with as well.
PN885
THE COMMISSIONER: Yes.
PN886
MS ANDELMAN: But in the company's application and their submissions clearly the focus is on the award rather than on the dispute finding. And the evidence that you've heard today from the company is focused on the award.
PN887
THE COMMISSIONER: Well, I'll give you both 14 days in which to send to me anything - just copy it to each other - 14 days to send me anything you think is relevant to my consideration of this matter, and a further 14 days to respond to anything the other side said that you want to take issue with. So within 28 days everybody should have had all their opportunities exhausted in relation to what I should take into consideration.
PN888
And then I will determine whether or not a secret ballot of employees is necessary, and if so what question to be asked? What information is to be put to them to assist them making an informed judgment as to whether or not the union ought to be given the opportunity to argue for the roping-in award. Not whether one will apply, but whether you ought to be given the opportunity to argue for one. Because 111AAA could be raised again and you might have to ask the staff again in this participatory approach what that means.
PN889
All right. Thank you for your assistance. The matter is adjourned. I reserve my decision formally.
ADJOURNED INDEFINITELY [1.12pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #D1 SUBMISSIONS PN188
EXHIBIT #D2 TRANSCRIPT OF PROCEEDINGS BEFORE VICE PRESIDENT LINNANE DATED 25/10/2002 PN201
PAUL SIMON JOBBINS, AFFIRMED PN324
EXAMINATION-IN-CHIEF BY MS DOYLE PN324
EXHIBIT #D3 AFFIDAVIT OF PAUL SIMON JOBBINS DATED 02/02/2004 PN333
EXHIBIT #D4 SUPPLEMENTARY AFFIDAVIT OF PAUL SIMON JOBBINS DATED 24/03/2004 PN342
CROSS-EXAMINATION BY MS ANDELMAN PN354
RE-EXAMINATION BY MS DOYLE PN498
WITNESS WITHDREW PN513
MICHAEL SIMONETTI, AFFIRMED PN516
EXAMINATION-IN-CHIEF BY MS DOYLE PN516
EXHIBIT #D5 AFFIDAVIT OF MICHAEL SIMONETTI PN558
WITNESS WITHDREW PN559
MARGARET GABRIELLE MAY, SWORN PN572
EXAMINATION-IN-CHIEF BY MS ANDELMAN PN572
CROSS-EXAMINATION BY MS DOYLE PN590
WITNESS WITHDREW PN613
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