C2004/1602, Transcript of Proceedings [2004] AIRCTrans 2361 (24 June 2004)

AUSCRIPT PTY LTD
(Administrator Appointed)
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 7453
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2004/1602
C2004/1603

TELSTRA CORPORATION GENERAL
CONDITIONS AWARD 2001

TELSTRA/CPSU AWARD 2001

Application under section 113 of the Act
by the Community and Public Sector Union-
PSU Group, Victorian Region to vary the
above award re the inclusion of safety net
pay increases and allowances available under
the 1999-2003 Safety Net Review decisions and
the inclusion of test case standards for the
supported wages system

MELBOURNE

10.48 AM, TUESDAY, 15 JUNE 2004

Continued from 31.5.04 not transcribed

PN60

THE COMMISSIONER: Wo wants to report?

PN61

MR VEENENDAAL: I am happy to report, Commissioner.

PN62

THE COMMISSIONER: Yes, Mr Veenendaal?

PN63

MR VEENENDAAL: Commissioner, the parties since the matter was last before the Commission, have had an opportunity to have some discussions. There has also been exchanges of correspondence, particularly between the CPSU and Telstra and I am able to indicate that we are in a position where Telstra and the other unions are consenting to the CPSU applications save for some issues that Mr Bretag will no doubt raise in respect of supported wage. As I understand their position,is they are not consenting to the variation of the consolidated award in respect to supported wage,but I will leave that to Mr Bretag to deal with.

PN64

What we will need to do, Commissioner, is the CPSU will need to prepare orders to reflect the consent position. I don't have orders that I can tender today in addition as there will be some variations to the orders that have previously been provided to the Commission. The process will be that I will provide those orders to the other parties in respect to 1602 and Telstra and in respect of 1603 to Telstra and Telstra will obviously have a look at those. Save for any issues with the orders, then we will - - -

PN65

THE COMMISSIONER: Would you also give it to the other parties to the award in 1603 - yes, 160 - - -

PN66

MR VEENENDAAL: 1602.

PN67

THE COMMISSIONER: 1602, I think.

PN68

MR VEENENDAAL: I certainly will be doing that in respect of 1602. And we would ask then that the Commission issue the orders out of chambers if the Commission deems fit to do so. But before I do that there are some issues that Telstra have raised in respect of the orders generally and also in respect to the supported wages system and there are also some issues about the applications in general and I want to deal with those now very briefly. Firstly, in respect to the applications in general, I want to formally apply now, from the bar table, for the Commission to vary both applications at 1602 and 1603 pursuant to section 111(1)(p) of the Act to include the Full Bench decision - the recent Full Bench decision in the 2004 safety net adjustment, that is PR002004.

PN69

The reason I want to do that is because of the nature of the consent where there will be prospective dates applied to both orders, the dates being, 22 June 2005. It is our view, CPSUs view, that it is appropriate to ensure that both rates and allowances are adjusted to include the current Full Bench decision, the 2004 decision. So I would ask that that issue be dealt with. The second issue that I need to have - - -

PN70

THE COMMISSIONER: Well, before you do, is there any objection to the application for leave to vary the application?

PN71

MS KENNEDY: No, there is not.

PN72

THE COMMISSIONER: No, leave is granted.

PN73

MR VEENENDAAL: The second issue wish to deal with is the amendments to the supported wages system. I refer to - well, I probably can't refer to correspondence; I note that it is without prejudice, but, it might be appropriate for Telstra at this time to get up and indicate what changes it wishes to make to the supported wages order and then we can respond to that, Commissioner. I would suggest that is a proper way to move the issue of the supported wage system forward from here.

PN74

THE COMMISSIONER: All right. Yes, Ms Kennedy?

PN75

MS KENNEDY: Thank you, Commissioner. As I said on the last occasion there are two changes that Telstra seeks to the test case standard with respect to supported wages. The first one was that the proposed clause 27.3.1 should be amended to state as follows:

PN76

The employees to whom this clause applies will be paid the applicable percentage of the relevant salary and other wage related matters as prescribed by the applicable Telstra award.

PN77

That change is necessary, Commissioner, as the General Conditions of Employment Award contains no salary rates. So it is needed to refer to the other Telstra awards that have salary rates in it. A further change that Telstra seeks is that part of clause 27.2.2 be deleted as it is unnecessary. That part of the clause which we say should be deleted reads:

PN78

...or any provision of this award relating to the rehabilitation of employees who are injured in the course of employment.

PN79

Given there are no provisions in the award relating to rehabilitation of employees. We say it is unnecessary for that provision.

PN80

THE COMMISSIONER: You are covered by the Commonwealth statutes in that regard, aren't you?

PN81

MS KENNEDY: That is correct, Commissioner.

PN82

THE COMMISSIONER: Yes.

PN83

MS KENNEDY: Yes.

PN84

THE COMMISSIONER: Yes, all right, do you want to say anything about the wages and allowances before you resume and then I can hear from the two unions?

PN85

MS KENNEDY: Yes, Commissioner, thank you. As set out in our letter to Mr Veenendaal and Mr Bretag and the other unions that are party to the General Conditions of Employment Award and I note you were copied that letter and it is actually dated 7 June 2004 but it was sent on 10 June, Friday, 10 June:

PN86

We wish to make it clear to all the parties that Telstra does propose to apply to the Commission to vary the allowances in both the CPSU award and the General Conditions Award on the basis that they don't form a properly fixed safety net minimum terms and conditions when compared to minimum rates in other awards.

PN87

It will be our contention that the current level of allowances, prior to any consent variation to account for safety net adjustments, exceeds a level that should be included in the Minimum Rates Award. It is important to stress that our application for variation will be based on a review of the existing allowance rates and not those following the consent variation to take effect from 22 June 2005. And I note Mr Veenendaal's comments in relation to an order and obviously Telstra will consider what the order looks like and hopefully reach agreement.

PN88

THE COMMISSIONER: Thank you. Mr Veenendaal?

PN89

MR VEENENDAAL: Firstly, in respect of the supported wages issue that Ms Kennedy has made submissions about, I can indicate to the Commission that we are prepared to consent, Commissioner, to the change that Telstra suggests at clause 27.3.1, that is, to insert a reference to the appropriate award that contains wages and salaries, being the CPSU Consolidated Award. However, I indicate that I am - the CPSU is not prepared to consent to the change that Telstra suggests at 27.2.2 in respect to provisions relating to the rehabilitation of employees who are injured in the course of employment.

PN90

We don't see that it is appropriate for the CPSU to consent to any departure of substance in respect to the entitlements of a - what is, a test case standard. In respect to the issue of the application that Telstra has foreshadowed, what we say about that is that we don't accept that the allowances as they currently exist in both awards are not properly fixed minimum as Telstra suggests. However, we do say two things about that. Firstly, we say that the CPSU accepts that Telstra's consent to the current applications before the Commission does not, either expressly or impliedly, in the view of the CPSU, amount to an acceptance by Telstra of the quantum of allowances as they currently stand in the two awards.

PN91

And, secondly, that in the event that Telstra at some time actually makes the application it now foreshadows it intends to make, the CPSU will not argue that consent to the current applications that are before the Commission in 1602 and 1603, is construed by the CPSU, either expressly or impliedly, as an acceptance by Telstra of the quantum of the allowances as they currently stand in the awards. I just want to say something very briefly about the operative date of the orders that we will be seeking in this matter, Commissioner.

PN92

Both orders are - will have a prospective date of 22 June 2005. The reason that we are prepared to consent to the variations that are sought by the CPSU on a prospective basis is this. Currently Telstra has six agreements which provide for comprehensive wages and conditions including allowances, which in our submission, essentially cover the field in respect to both wages and allowances. A question has arisen in respect to the applications that are currently before the Commission in respect to the operation of allowances or as to how allowances will operate in respect to the allowances which are of a similar form in the current agreements.

PN93

In order for - essentially, to enable certainty in respect to the terms of the agreements continuing to cover the field, if I can put it in that way, Commissioner, we are prepared to agree to the prospective date as I have suggested. The reason for that specific date is because that is the date that the six agreements currently apply in a comprehensive fashion across Telstra - expire. So, essentially, what we are trying to do is avoid the question arising by ensuring that the prospective date - by including that prospective date in the orders, as suggested, Commissioner. Thank you, Commissioner.

PN94

THE COMMISSIONER: Now, Mr Bretag?

PN95

MR BRETAG: Thank you, Commissioner. Commissioner, perhaps if I can go first to the issue of the supported wage award application by CPSU. The supported wage award application goes to the issue of salaries. The historical construction of the awards in Telstra is that salary matters are contained within the specific conditions of employment awards between Telstra and the relevant union. The CEPU submits that it would be more appropriate if the CPSU application be made in respect of the CPSU Consolidated Award rather than an award which binds all the respondent unions.

PN96

Given that the CPSU application is to vary the Telstra General Conditions Award, an award binding all the parties, the CPSU - sorry, the CEPU must oppose the CPSU application in its present form. That is the only submissions I would like to make in respect of the supported wage application. Commissioner, if you like, I will also address the issues of the other matters.

PN97

THE COMMISSIONER: Yes, please.

PN98

MR BRETAG: The CEPU has only this morning been advised that Telstra intends to make application to vary the awards regarding allowance matters on the basis that they do not form a properly fixed safety net. The CEPU believes that the rates of the allowances were set at a proper minimum through the award stripping back process and obviously we will vigorously oppose Telstra's application in this regard. Thank you, Commissioner.

PN99

THE COMMISSIONER: Thanks, Mr Bretag. Yes?

PN100

MR VEENENDAAL: Before Ms Kennedy gets up there is a couple of things I have forgotten to say in submissions, Commissioner. Firstly, APESMA is also a party to this award and I can indicate to the Commission that although there are - is a letter of consent to orders that were tendered on the - at the last hearing, obviously, there has been some material changes that have been agreed to between the parties in respect to those orders. I did have an opportunity to have discussions with Mr Geoff Farrey, who is the director of industrial relations for APESMA this morning, and in respect to the words that I - the submissions I made about Telstra's application to review the allowances because Telstra says they are not properly fixed minima, I did say two things about that, Commissioner.

PN101

Mr Farrey has indicated that he adopts, essentially, the submissions we have made there. If the Commission isn't prepared to accept that, Mr Farrey has indicated he is prepared to put something in writing to the Commission after this hearing. So I would wait to hear from the Commission as to whether the Commission is satisfied with what I have said there or whether the Commission requires a letter from Mr Farrey. I also just reiterate that we have been authorised by way of a letter, which should have been sent to the Commission some time back, to represent the AMWUs interests in this matter.

PN102

So it goes without saying that the AMWU therefore also adopts that position. Thank you, Commissioner.

PN103

THE COMMISSIONER: Yes, Ms Kennedy?

PN104

MS KENNEDY: Thank you, Commissioner. Obviously, I don't need to take you through supported wage position in respect of supported wage and I acknowledge what was said by Mr Veenendaal and Mr Bretag in relation to our possible application to apply for a variation of the allowances and I thank them for that. Telstra is prepared to consent to waive the 12 month rule in respect of variations to include the '99, 2000, 2001, 2002, 2003 and 2004 safety net adjustments and obviously we reserve the right to review the proposed order prepared by the CPSU to reflect that.

PN105

We do note though that - I am not sure - Mr Veenendaal made it clear that it is our position that the salary barrier should also be adjusted in the same way as the other rates of pay. The relevant salary barrier figure for this variation is 42,891 as it appears in the simplified General Conditions Award made by Commission Lewin on 28 March. And related to that I made a comment last time that the former order needed to include a statement that complies with principle 8(e) of the safety net principles. Whilst the General Conditions Award doesn't contain rates of pay as such Telstra submits that this form of words is necessary to reflect that the salary barrier will be varied to take account for this adjustment.

PN106

This will reduce the prospect of further ambiguity about the salary barrier in the future. I am sorry, I should have mentioned that to Mr Veenendaal beforehand but - we acknowledge that the date of effect of any proposed order would be 22 June 2005. But obviously our application will follow in relation to allowances which will have an affect on that aspect of the consent variation.

PN107

THE COMMISSIONER: Yes.

PN108

MS KENNEDY: Is there anything else that the Commission needs from Telstra?

PN109

THE COMMISSIONER: No, thanks, Ms Kennedy.

PN110

MR VEENENDAAL: I might just respond to the issue about salary barrier, I apologise for not mentioning that in my earlier submissions, Commissioner, but we are prepared to include an adjustment of the salary barrier in our order. The CPSU did remove a reference to the salary barrier - or remove from the order a salary barrier in CPSU3, which was an exhibit in matter 1602. However, the orders that I will be presenting to Telstra for the purpose of checking will include an adjustment for the salary barrier and I am happy also to base that adjustment on the figure that Ms Kennedy has provided of 42,891. That would be the basis of, or the point of adjustment. Thanks, Commissioner.

PN111

THE COMMISSIONER: Thank you. These are applications to vary the Telstra Corporation General Conditions of Employment Award and the Telstra CPSU Award 2001. The applications seek to increase wage rates and allowances to reflect the 1999, 2000, 2001, 2002, 2003 and 2004 Safety Net Review decisions. The parties have reached a consent arrangement whereby any order that is made arising out of these proceedings would come into effect from 22 June 2005 in relation to the wage rates and allowances.

PN112

In addition Telstra have indicated that they propose to apply to the Commission to vary the allowances in the above awards on the basis that in their view they are not properly fixed minima that should be contained in the safety net awards. In the proceedings today Telstra has made it clear that it will make application to deal with that matter. I am satisfied, and I accept, that its consent to the variation today given the timing, namely, June 2005, does not in any way prejudice its argument that it has foreshadowed. Telstra has taken a proper course alerting the parties and the Commission to its view and that the time at which the order will operate will provide sufficient time for that issue to be ventilated an determined.

PN113

The other matter which is relevant is the supported wage matter. There is no objection to the supported wage clause going in to the Telstra CPSU Award 2001 but CEPU opposes the clause going into the Telstra Conditions - Corporation General Conditions Award 2001. Telstra believe if the awards are to be varied to incorporate the supported wage there should also be variations to clause 27.3.1 and 27.2.2. Those variations make the award - or make the - make the terms referable to Telstra and also delete a term which doesn't apply, namely, that part of the application that seeks:

PN114

...or any other provision of this award relating to the rehabilitation of employees who are injured in the course of the employment.

PN115

CPSU consent to the variation in clause 27.3.1 but oppose the variation in 27.2.2. I turn firstly to consider whether or not both awards should be varied. I form the view that they should. I note in passing that item 51.7(b) of the WROLA Act brings to notice to the Commission that it should, where appropriate, provide support to training arrangements through appropriate training wages and supported wage system for people with disabilities. Both awards will be varied and the proposed variations by Telstra will be made.

PN116

In relation to the variation that is opposed by CPSU, it is important to note that, firstly, the award does not contain any matters relating to the rehabilitation of employees, and secondly, that at the present time, Telstra are bound by Commonwealth statutes in relation to these matters. If at any stage those factors alter, leave is granted to the CPSU to make application to deal with the clause in accordance with the test case decision. Now - - -

PN117

MS KENNEDY: Commissioner?

PN118

THE COMMISSIONER: Yes?

PN119

MS KENNEDY: Sorry, just by way of clarification, the application with respect to supported wages is only to amend the General Conditions Award.

PN120

THE COMMISSIONER: I am sorry, the General Conditions, yes.

PN121

MS KENNEDY: Thank you.

PN122

THE COMMISSIONER: General Conditions, not the CPSU Award, yes. In relation to orders, the CPSU is directed to prepare draft orders and to serve them on the parties as soon as practicable. If there is agreement with the draft orders, if the parties could indicate their agreement with the orders that are drafted to reflect the decision of the Commission. And if that occurs then the orders will simply be issued without a further sitting. I will issue this decision and reserve the right to edit the decision to ensure elegance of language. The matter is adjourned sine die.

ADJOURNED INDEFINITELY [11.12am]