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Australian Industrial Relations Commission Transcripts |
AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 11022
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER SMITH
C2003/5669
COMMUNICATIONS, ELECTRICAL,
ELECTRONIC, ENERGY, INFORMATION,
POSTAL, PLUMBING AND ALLIED
SERVICES UNION OF AUSTRALIA
- COMMUNICATIONS DIVISION
and
TELSTRA CORPORATION
Notification pursuant to section 99 of the Act
of a dispute re Telstra's intention to replace
12 hours shifts with 8 hours shifts at their
Clayton Operations Centre
MELBOURNE
10.07 AM, FRIDAY, 20 AUGUST 2004
Continued from 19.8.04
PN6229
MS BORNSTEIN: Commissioner, might I, at the outset, tender a document produced under the summons by Telstra, being the Formay Quality Engineering Technical Report in relation to the condition of the chairs, dated September 2001. That report was referred to Mr Malden yesterday and I understand my learned friend does not object to its tender.
PN6230
PN6231
MS BORNSTEIN: And for completeness, I have been just provided with some costings. I have not had the opportunity to examine those costings but I would foreshadow that I would be seeking to tender costings of, particularly the comparison between the savings between shift patterns as they relate to the 12 by 5, 12 by 6 and 8 by 6 shift rosters. Commissioner, the first matter as discussed yesterday, is the application for a survey conducted by the CEPU to be admitted into evidence.
PN6232
The application is for its submission on the basis that it is confidential to the Commission and confidential to counsel and counsel's instructing solicitor. If I might deal with that aspect of the application first. The survey has been completed by some 90 employees of the Global Operation Centre. My instructions are that they are apprehensive as to any response from Telstra in terms of the opinions expressed and it is on that basis that we would seek admission of the survey on a confidential basis. That confidentiality, of course, only extends to the names of those who have completed the survey and not to the data therein.
PN6233
The survey essentially asks employees employed at the Global Operations Centre to identify the areas in which they worked prior to and post-October 2003, to identify whether they were working 12-hour shifts prior to October 2003; whether they supported the change from 12 to eight-hour shifts; whether they are now supportive, and if they were given an option would they return to 12-hour shifts, or choose to remain on eight-hour shifts, and then an invitation to make specific comments regarding the "impact of the change from 12 to eight-hour shifts it had on you, for example, family life, health, etcetera." So the questions in that seventh and last category were neither specific or leading.
PN6234
The material was forwarded, as I am instructed, by email to certain individuals at the Global Operations Centre who then on-forwarded it. The material was then - the completed survey material was then forwarded by email to the email address of my instructing solicitor and downloaded by her. Could I say at the outset that the survey material and the transmission details for each returned survey, remained available to, and inspected by Mr Wood, my learned friend Mr Wood, and his instructing solicitor, on the basis of an undertaking as to confidentiality.
PN6235
As the Commission is aware, section 110(2)(b) of the Workplace Relations Act establishes that:
PN6236
The Commission is not bound by the rules of evidence. The Commission is not bound to act in a formal manner and is not bound by any rules of evidence but may inform itself on any matter in such manner as it considers just.
PN6237
And at subparagraph (c):
PN6238
The Commission shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
PN6239
The notion that the Commission, in exercising its discretion, may inform itself on any matter as it considers just, imports into the exercise of discretion a notion of fairness. It is submitted that it would be unfair not to admit the survey material. Clearly, section 110(2)(b) of the Act permits that the survey material of the type subject to this application, to be admitted. There is no other survey material that would assist the Commission. The respondent, in its evidence, has made it clear that no survey was conducted prior to the introduction of the eight-hour shifts and, apparently, none has been conducted subsequently either to identify the scope of support for the change, or to identify its impact. Therefore, the survey material constitutes the best evidence that is presently available from some, just under 50 per cent of employees employed at the Global Operations Centre.
PN6240
In that context, in his opening submissions, my learned friend, Mr Wood, acknowledged and accepted that in some cases the changes have affected employees adversely, and that the transcript reference for that is paragraph number 213. The survey material is an expression of the opinion of those who responded as to he impact, adverse or otherwise, of the change. Further, Telstra placed in clear relief the proposition in cross-examination of witnesses called by the CEPU, that the small numbers called simply demonstrated that a few employees that were resistant to change, inviting the Commission to draw an inference that others, not called to give evidence, were not so resistant. In my submission, the survey evidence is the best evidence available to respond to that contention. Further, in terms of the justice of - - -
PN6241
THE COMMISSIONER: I am sorry, why is that? Why can't I just accept that the CEPU is the representative body speaks for its members? Why do I have to go behind the representative body?
PN6242
MS BORNSTEIN: Commissioner, you may not have to go behind the fact that the CEPU is the representative body but, in my submission, Telstra, the respondent, is inviting you to do so.
PN6243
THE COMMISSIONER: Yes, I understand. Thank you.
PN6244
MS BORNSTEIN: In terms of the justice of accepting the material, the application before the Commission squarely raises issues of work/family balance and the obligation of the Commission to have regard to the Family Responsibilities' Convention under section 88B of the Act. The survey, amongst other things, expresses the opinion of employees who responded in relation, at least in some responses, to family responsibilities and work/ family balance. In that context the survey material is the best means of providing material in relation to the opinion of employees in relation to the impact on work/family balance without unduly burdening the Commission by calling each and every one to give evidence and without burdening each of the parties with costs that would be prohibitive including the costs to the respondent, Telstra, of the absence of an even greater number of employees to give evidence.
PN6245
In my submission, it is not an irrelevant consideration in proceedings of this kind that employees express opinions of the kind advanced in the survey, and the survey material is direct evidence of those opinions expressed as distinct from proof of the facts asserted. Further, the survey material, in my submission, is corroborative of material advanced by other witnesses in relation to the response to change, the effect of change, opposition to the change and desires generally in relation to the 12-hour shifts.
PN6246
In my submission, the issue is, for the Commission, is not so much as to whether the survey material should be admitted into evidence but rather the weight to be given to that evidence. We would accept that the question of weight is a matter for the Commission but in referring to the question of weight, I again refer to the proposition that the material in the survey is, in fact, corroborative in large part of witness evidence that has been tested by the respondent during the course of these proceedings.
PN6247
The alternative, Commissioner, as a matter of fairness, would be that each and every one of them are to be called, if necessary on summons, to be subjected to cross-examination. That, in my submission, would place an unreasonable burden on the Commission, and unreasonably burden on the union in terms of costs, and an unreasonable burden on Telstra both in terms of costs and in terms of absence of employees from the Global Operations Centre. Another alternative, if the Commission is against me, is for the Commission to refer the questions of the response to the 12-hour shifts, including work and family balance to an expert under section 111(1)(n) and to receive that expert's evidence as relevant to the case.
PN6248
The Commission, as presently constituted, would be familiar, sir, from your own experiences with the admission of survey evidence and in that regard could I refer you to a decision of a Full Bench of this Commission dated 18 August 1997, in the Higher Education General and Salaried Staff Award matter, where at page 9 of 33, there is a reference to the reliance by the NTEU on a range of material including survey material. The bench did not, in that decision, rule on admissibility. The decision stands with the proposition that it is not unusual in the context of the legislation, for survey material to be admitted.
PN6249
More recently in a decision of a Full Bench in print PR926620, as constituted by his Honour, the President, Senior Deputy President Watson and Commissioner Raffaelli in the SDA v $2 and Under and Others, the Commission gave consideration to survey material, and might I take the Commission to paragraph 24 of that print where, in the course of submissions, the Commonwealth referred to reliance by the SDA on the survey conducted by ACIRRT, that is A-C-I-R-R-T in relation to whether schedule 1A employees, that is employees covered by the referral of the industrial powers in Victoria, to investigate whether schedule 1A employees are disadvantaged compared withe Victorian employees covered by Federal awards and agreements.
PN6250
The notion of disadvantage there is somewhat akin to the notion of disadvantage identified by many of the respondents of the survey subject of this application. At paragraph 57 and following, the bench gave consideration in that decision to that survey and adopted it, with some reservations, at paragraph 62 in relation to the weight to be given in that the Commission decided that the material did not allow a quantity of assessment of disadvantage, noted that the findings needed to be treated with caution, including sample sizes, but relied on it in the page following that, page 12 of 20, to identify the fact that some disadvantage did exist in relation to employees covered by schedule 1A, by comparison with employees whose employment was governed by Federal awards.
PN6251
Commissioner, on that basis we would submit that the Act clearly permits the Commission to accept the survey evidence. There is adequate precedent for its acceptance. The essential issue is the weight to be given to the material which we submit is a matter for the Commission, and we submit that, consistent with practice adopted by this Commission where apprehension of consequences are raised, that the material, if accepted, should be ruled in terms of the names of the respondents as confidential to the Commission and to counsel for the respondent, and his instructing solicitor. If the Commission pleases.
PN6252
THE COMMISSIONER: Thanks, Ms Bornstein.
PN6253
MS BORNSTEIN: Commissioner, I can certainly hand you a copy of the responses. I don't have a blank. My learned friend wants to speak to it so it may be appropriate - - -
PN6254
THE COMMISSIONER: Well, he can see it.
PN6255
MS BORNSTEIN: He has already seen it but I guess he hasn't committed it to his memory.
PN6256
THE COMMISSIONER: Yes.
PN6257
MS BORNSTEIN: I understand my learned would like the Commissioner to see it and on that basis I have no difficulty.
PN6258
THE COMMISSIONER: Yes, Mr Wood?
PN6259
MR WOOD: Commissioner, we don't have any issue with the jurisdictional basis for the reception of the evidence. Perhaps a quibble about the exact section, or that the Commission might have regard to and we say it is section 93A; my learned friend says it is section 88B, but that doesn't matter. The real issue I think boils down to three issues. The first is a timing issue; second, there is a fairness issue; and thirdly, there is the issue of confidentiality.
PN6260
Perhaps I can deal with the question of timing first? Commissioner, this case has had a long history and directions were given in early this year for the filing of witness statements in March by the CEPU, in early March by the CEPU and late March by Telstra. About 20, it depends whether you count misfile of statement, there are one or two statements, but about 20 statements were filed by the union from employees, and Telstra looked at those and responded to them to the extent necessary, and called witnesses who were either the team leaders, or the managers of the relevant groups from which the witnesses introduced by the CEPU, were drawn.
PN6261
Then we had five days of hearing, 12, 13, 14 of May, then 20 and 21 May, then 4 June; that was the end of the CEPUs case in relation to all the witnesses from the GOC. The only evidence to be introduced after that date on 19 July was Ms Heiler. You will recall we had a debate about her evidence in front of the Chinese delegation. Prior to Ms Heiler coming to give evidence on 19 July, on 1 July we received this survey, or I shouldn't say the survey, a summary of that survey, or I shouldn't even say that, a summary of the surveys, the approach we took was to look at the surveys which have just been handed up to you, Commissioner, and we wrote to the union, and I will hand you a copy of the letter that we wrote. It is dated 27 July. I might just let you read it, Commissioner.
PN6262
THE COMMISSIONER: Yes.
PN6263
MR WOOD: Commissioner, you will see that our issue with the survey is really restricted to the answers to questions 5 and 6 - I beg your pardon, 6 and 7. We don't object to, in answer to the question of:
PN6264
In which area of the Global Operations Centre were you working prior to October 2003?
PN6265
We don't object to reception of evidence of an answer to the question:
PN6266
In which area of the Global Operations Centre are you working now?
PN6267
We don't object to the answer of the question:
PN6268
Were you working a 12-hour shift prior to October 2003 -
PN6269
subject to what I will say about confidentiality because we obviously want to check that against the records that we have tendered in the proceedings. I think it is Telstra 2. Question 4:
PN6270
Did you support the change from 12 to 8-hour shifts?
PN6271
We don't object to the answer to that; and 5:
PN6272
Are you now supportive of the 8-hour shifts?
PN6273
We don't object to the answer to that. We do object to the answers to questions 6 and 7:
PN6274
If you are now given the option would you return to work in 12-hour shifts or would you choose to remain on 8-hour shifts?
PN6275
And we more strongly object to the answer to question 7:
PN6276
Do you wish to make any specific comments regarding the impacts that change from 12 to 8-hour shifts has had on you, e.g. family life, health, etcetera.
PN6277
The reason that we object to those two questions, Commissioner, is that, and this gets to the second point I am making - I indicate I make, it is a question of fairness. My learned friends says: well, it is all just a matter of weight, and in one sense in many cases in the Commission that, indeed, is the response, and in many cases that is a fair response but it in this case we have cross-examined the witnesses that are called and in the letter you will see, Commissioner, that we refer to certain passages of transcript. The passages at the bottom of the first page refer to questions relating to question 6:
PN6278
If you are now given the option would you return to work in 12-hour shifts or would you choose to remain on 8-hour shifts?
PN6279
And you will recall that there was cross-examination about that and some of the witnesses backed away from what they had said in their witness statement, not completely, but partially, at least to the extent of saying "Well, I'd have to wait and see what's on offer in terms of my AWA and compared to what was on offer in terms of working 12-hour shifts under the award." Some of the witnesses backed away much more significantly from their evidence in relation to the type of evidence that question 7 is concerned with, specific comments. I will give you the two examples. One was listed in a letter, paragraph number 1866 to paragraph number 1882, that is Mr Downs's evidence, where he made comment about his difficulty in driving home from work. He had originally said in paragraph 13 of his witness statement:
PN6280
The last 20 minutes of my journey is on the Western Highway. Very little variety in the road ...(reads)... I could not sleep.
PN6281
When he came to give evidence he chose not to read that statement, that part of his statement because of something Mr Vimalanathan had said and, not only did he not read that part of his statement, he backed away from another part of his statement, paragraph 12, which he says:
PN6282
One section of the 8-hour roster requires me to work three nights in a row ...(reads)... I feared for my safety on the way home.
PN6283
And the reason he backed away from it is that Mr Vimalanathan Nathan had said, "Well, we understand - we understood there was an issue involving Mr Downs and Mr Downs had always car-pooled and continued to car-pool and Mr Vimalanathan in paragraph 12 of his statement;
PN6284
Mr Downs describes a fear for his safety on the drive home when he works three night-shifts in a row ...(reads)... I believe the driving is generally shared.
PN6285
He is cross-examined along those lines and he agreed that:
PN6286
Yes, the driving was shared prior to, whilst on 12-hour shifts and after the move from 12 to 8-hour shifts.
PN6287
Another example that we might give, Commissioner, is an example at - involving Mr Crick's evidence. You recall Mr Crick - Mr Rashwan was called to counteract Mr Crick and I had to so bound up my mind and I called Mr Rashwan and Mr Crick yesterday. What Mr Crick ended up saying is that there were changes to his roster and he asked to be changed to afternoon shift and he did, in fact, agree to change to afternoon shift. The reason was:
PN6288
I've got two young kids and with the shift sometimes it's very hard to spend time with them ...(reads)... afternoon shifts allows me to spend the mornings with the kids.
PN6289
That is at paragraph number 3902. And we could go through each of the witnesses, Commissioner, I can give you examples of that type of cross-examination on this type of issue. That is really what we say is the problem with this survey is, it simply doesn't give us an opportunity to test the evidence that is purported to be given in the survey in a way that allows the Commission to see what the true position might be. For example, Mr Crick's evidence, started on being changed:
PN6290
My roster's been changed and that's causing issues.
PN6291
The evidence that we will ask you to find, or the facts we will ask you to find is that the roster changes are being made to accommodate Mr Crick's family responsibilities, that is, 180 degree change from the position put in his statement compared to the facts that we are going to ask you to find, Commissioner. And without having the opportunity to check, these particular facts and, given the basis upon which we were given these surveys, and we haven't had the opportunity to do that, we haven't been allowed to do that, we would have to check the facts and to cross-examine these witnesses.
PN6292
Now, my learned friend says, in response to that, "Well, that's going to waste time. We're going to be in - we're going to have a Royal Commission into the operation of the GOC, we're going to have to call 90 witnesses and there's got to be some limit on that", and we agree.
PN6293
THE COMMISSIONER: Well, I hold a Royal Commission.
PN6294
MR WOOD: Yes. Commissioner - - -
PN6295
THE COMMISSIONER: From the sense of the Governor-General has conferred one.
PN6296
MR WOOD: Yes. I thought there was something I wasn't aware of?
PN6297
THE COMMISSIONER: No surprise announcements.
PN6298
MR WOOD: Commissioner, we don't think the choices are as stark as what my learned friend says. We think that if, and this is on the issue of fairness, if there were really issues that had come up, or had come up then, or come up now, Mr Malden's evidence is that those issues have - there are ways of resolving those issues and that they had been resolved, and they have been resolved satisfactorily. So you have got a general response to these sorts of allegations which don't hit each other - very general response, specific allegations.
PN6299
If the union was to say, "This is the order we want. We don't want a general order that covers everyone, we want to deal with specific problems which are identified in this survey and we want the order to reflect those specific problems whatever they might be." The very working-out of the solution of the problem and the solution that is asked, may well take away a need for a solution by the Commission. That is my learned friend wants an order that everyone goes back or, more broadly, that potentially on one reading of the order, that anyone who comes into the GOC after 4 October who performs the work that was performed by others prior to 4 October, works on a 12-hour shift, that is work by others on a 12-hour shift. That new person works on a 12-hour shift.
PN6300
Even if it is not read that broadly and one just confines it to the actual individuals who are working 12-hour shifts prior to 4 October, and those -and therefore there is a slightly class, the evidence my learned friend wants to put in doesn't really line up with the relief that is claimed. That is, it is not really said, I don't think, that the workforce is homogenous. It is not as if we are dealing with, say - I don't want to be disparaging but say a knitting mill in a country town where the nature of the workforce is very similar: similar age, similar gender, similar background, so that one can say, well, what is the case for one person will be the same for all of them. That is not the sort of workforce we are dealing with.
PN6301
So given the general relief claimed, my learned friends says, "Oh, well, we have to call everyone if they want to have a fight about the receipt of this evidence. We don't see that choice as being as stark as my learned friend paints it. We see one choice being that my learned friend can try and fashion some relief, or identify some employees or classes of employees to whom this sort of evidence is directed and some relief in relation to those individuals, or classes of individuals. Now, if that was done, we might be able to resolve the issue without it being for, not only the survey, but for the Commission.
PN6302
So I simply make that point, Commissioner, on the sort of stark choice that you are presented with, you have got to hear all this evidence or - because the choice isn't as stark as that. On the last point, Commissioner, the question of confidentiality, we would object to these statements being marked confidential, but the union and its members have got rights under the act to pursue anyone, whether Telstra or its employees, who do anything which amounts to a breach of either the freedom of association provisions, or the provisions which are inserted into the Act to assist the administration of justice.
PN6303
THE COMMISSIONER: The penalties have all just gone up.
PN6304
MR WOOD: Yes, and the penalties for the criminal offences - criminal, that is it is a serious matter, one that Telstra takes seriously, and it would be, we would say, quite unfair to Telstra in the absence of any evidence of any sort of allegation of any employee being intimidated, harassed or disadvantaged by making these statements; that Telstra wouldn't have the opportunity to collect these surveys and compare it to the other evidence that is in, in the proceeding.
PN6305
For example, it might be that the surveys, my learned friends says there is 90 of them, belong to one group of employees, or two groups, they are concentrated in a certain area. We might wish to make submissions at the end of the case that it seems as if the complaints are in this area when we tally up the names against the records that we have put in evidence about where those employees work. That is, we say, the problem with - - -
PN6306
THE COMMISSIONER: But you have this document and you can do that?
PN6307
MR WOOD: No, Commissioner, we - the very strong position put by the union was that we were to inspect this document, these documents, in my chambers with Mr Clarke for a period of time and then we return them immediately, which we did, without copying them. So we - I accept what you say but there may be some way around that issue which involves some access to the documents by those instructing me, and me, Commissioner, but it may be that we need to take instructions on that information, and that is something we haven't been able to do as yet. That is, we haven't been able to, given the nature of the undertaking you gave my learned friend, say: well, is this information here true? Is it accurate? Is there anything that we might want to say about it? We just haven't been able to do that.
PN6308
I don't think there is anything else I need to say, Commissioner, I think that is all.
PN6309
MS BORNSTEIN: Commissioner, in terms of the alleged disadvantage to the respondent, the application for confidentiality seeks to exclude names only and there is no application to exclude the name of the area in which an individual works.
PN6310
THE COMMISSIONER: No, but there has got to be a matching process is the issue that Mr Wood raised.
PN6311
MS BORNSTEIN: As I understood my learned friend's submission, it was that it would not be possible to identify the areas in which the concerns were expressed. The areas are identified in the response.
PN6312
THE COMMISSIONER: Yes.
PN6313
MS BORNSTEIN: They - - -
PN6314
THE COMMISSIONER: Sorry, I was picking up an earlier comment.
PN6315
MS BORNSTEIN: Yes, there is a - - -
PN6316
THE COMMISSIONER: I suppose in reference to question 3 that they would want to test the accuracy of that against the person who stated it?
PN6317
MS BORNSTEIN: Well, that is something that could be done - - -
PN6318
THE COMMISSIONER: Yes, I thought so.
PN6319
MS BORNSTEIN: - - - in my submission, without instruction from Telstra because the application doesn't seek to restrict - it doesn't seek anonymity in relation to either my learned friend, or his instructor, and are quite simple - - -
PN6320
THE COMMISSIONER: And we have got enough charts with names in now.
PN6321
MS BORNSTEIN: That is right - a quite simple analysis that would be available. In my submission, firstly, should I say that the union has at all times reserved its rights in relation to the survey and it has been, it is acknowledged, the subject of ongoing discussion. It is not sufficient, in my submission, for the respondent to rely on the submission, however, oblique, that in some way, as the union has closed its case, that it is not open to the union to make application in respect of this survey or, indeed, make any application that may be necessary in the event that the survey is not admitted in relation to evidence that - to be called.
PN6322
My learned friend submits that Mr Malden's evidence was that family/work balance issues had been resolved and on that basis the survey material is, if I can coin a phrase, not relevant. That is an issue that is clearly in contention as between Mr Malden's evidence and evidence that was called, and withstood cross-examination - evidence that was called by the union. My learned friend referred you to the evidence of Mr Downs and Mr Crick in terms of cross-examination. There is, of course, a distinction between that evidence and the proffering of evidence that is the opinion of the respondents to the survey, as opposed to proof of the facts in contention, and we acknowledge that the survey material does not constitute proof of the facts asserted, but simply that that is the opinion of the respondent.
PN6323
But for completeness, could I submit that Mr Downs explained that he had ceased to drive at - he had ceased driving at night. That was not a collapse under cross-examination, it flowed from his statement that he considered night driving to be a hazard. The Commission will also recall that when the teams were first established they went from six to five teams, car-pooling arrangements - - -
PN6324
MR WOOD: Commissioner, I might be able to truncate matters? I thought my learned friend and I talked about this and I might be a bit slow on the uptake, but we would withdraw our objection on the basis of what my learned friend has just said about the basis upon which the document is tendered. That is, if it is not proof of the contents of what is alleged but merely the opinion of the individuals then not much weight can be given to it by the very nature of the base upon which it is tendered. So our objection would fall away on that basis, Commissioner.
PN6325
MS BORNSTEIN: Commissioner, perhaps I wasn't clear, but I have understood in arguing the fairness, or justice for this, I said that opinion evidence was not in the relevant consideration.
PN6326
THE COMMISSIONER: Yes, you do seek me to give weight and to take into consideration the answer to question 7?
PN6327
MS BORNSTEIN: Yes.
PN6328
THE COMMISSIONER: Yes.
PN6329
MR WOOD: All right, well, I - - -
PN6330
THE COMMISSIONER: Yes, but I acknowledge that.
PN6331
MR WOOD: I withdraw.
PN6332
MS BORNSTEIN: I acknowledge that the question of weight is a matter for the Commission.
PN6333
THE COMMISSIONER: Yes, I follow.
PN6334
MS BORNSTEIN: And I can't put it any higher than it is the opinion of the respondents to the survey and as an opinion, in my submission, it is not an irrelevant consideration.
PN6335
THE COMMISSIONER: Yes.
PN6336
MS BORNSTEIN: And I had thought I said that in my opening submission. Just reverting to the examples that my learned friend gave; as I understand it, it was not in issue that car-pooling arrangements had been disturbed as a result of the introduction of the five teams in October 2003, and resumed after the introduction of the six-team arrangement some month or so later. Mr Downs did explain that he had ceased driving at night because he considered that the dangers were too great.
PN6337
In my submission, that doesn't demonstrate that he was - he had either collapsed under cross-examination, or was otherwise a discreditable witness, and Mr Crick acknowledged that he volunteered to go on afternoon shift. That occurred on only several occasions and, in my submission - and it will be my submission ultimately that that does not detract from the weight of his evidence in relation to the effect on his family responsibilities generally. Even on best case scenario day relief only occurs one week in six.
PN6338
On that basis, Commissioner, we would submit that the material should be accepted. It should be accepted as opinion evidence and it should be given such weight as the Commission deems appropriate, subject to any further submissions and final submissions on that point. It is also not sufficient for my learned to blithely say that the Workplace Relations Act protects employees from discrimination. It may have that lofty legislative purpose. The Commission would be aware that discrimination can take many forms both overt and covert, and that, in any event, even in cases where discrimination is overt rather than covert, the costs and time are involved in taking respondent's to the Federal Court is, of course, not inconsiderable.
PN6339
In my submission, the existence of the legislation, in theory, does not present a barrier to the application for confidentiality, an application that the Tribunal I am sure, from its own experience as well as the experience of other members, is familiar with. The employees have an apprehension on the basis that we seek to tender the material as opinion evidence, on the basis that my learned friend and his instructor will have access to the names, and on the basis the respondent will be able to examine the areas, there should be, in my submission, no prejudice to the respondent arising from orders sought by the union that the names of the respondents to the survey be confidential to the Commission, to counsel for Telstra and his instructor.
PN6340
THE COMMISSIONER: Thank you, Ms Bornstein.
PN6341
Well, firstly, I accept that the CEPU is a representative body and represents the views of its members to the extent that the survey seeks to emphasise the CEPU submission it is not necessary. To admit the survey in its present form would be to introduce the views of employees which can't be relied upon as evidence of any facts. The weight to be given to views within a survey which is sought to be confidential, is not free from risk.
PN6342
The significant issue here is that it is not the global response which is sought to be introduced but the specific views of employees on important elements of the case. I will not admit the survey in its present form. I will admit a survey of results contained in the answers for questions 1 to 6 inclusive. The answer to question 7 will not be admitted. I will reserve my decision in relation to the application made under section 111N, and counsel and instructing solicitor for Telstra may see the raw data in relation to the relevant questions so they can prepare their submissions. I will just adjourn for five minutes so that we can organise for the next aspect. The matter is briefly adjourned.
SHORT ADJOURNMENT [10.59am]
RESUMED [11.16am]
PN6343
MS BORNSTEIN: Commissioner, before my learned friend calls his next witness, could I indicate that we have had discussions. We will re-submit the survey, deleting question 6 and 7, and - - -
PN6344
THE COMMISSIONER: I didn't delete 6.
PN6345
MS BORNSTEIN: Sorry, 7 and 8.
PN6346
THE COMMISSIONER: Yes, 7 and 8.
PN6347
MS BORNSTEIN: Seven and 8, I apologise, 7 and 8.
PN6348
THE COMMISSIONER: Yes.
PN6349
MS BORNSTEIN: And we will file and serve a copy of that to be marked as appropriate. In the context of the Commission's decision o reserve on the application that the Commission appoint an expert, could I simply do no more than ask the Commission to consider the transcript reference paragraph number 3354 to paragraph number 3362, being Mr Cooper's examination in the context of the Commission's observation that the CEPU is acting on behalf of its members and could I ask the Commission to note that when evidence was sought to be led from Mr Cooper representing those members, that my learned friend objected.
PN6350
THE COMMISSIONER: Yes. You can come back to it if you like?
PN6351
MR WOOD: Yes, I might - that might be easiest, Commissioner, because it seems to go a few pages.
PN6352
THE COMMISSIONER: Yes.
PN6353
MR WOOD: Commissioner, yesterday Mr Rashwan gave some evidence about a 2002 version of the individual performance and development plan - - -
PN6354
THE COMMISSIONER: Yes.
PN6355
MR WOOD: - - - we have now tracked - and that was one that had been filled in, we have now tracked down a blank one for 2004 and it is tendered without objection.
PN6356
PN6357
PN6358
THE COMMISSIONER: Please sit down, Mr Rewhorn.
PN6359
MR WOOD: Mr Rewhorn, can you give your full name to the Commission, please?---Paul Dennis Rewhorn.
PN6360
Are you employed by Telstra Corporation Limited, Mr Rewhorn?---Yes.
PN6361
And in what position are you so employed?---Manager, Systems and Tools within Network Services.
PN6362
In your position as Manager, System and Tools within Network Services, have you made a witness statement in this proceeding?---Yes, I have.
PN6363
Do you have it in front of you, Mr Rewhorn?---Yes, I do.
PN6364
Is it dated 19 July and runs to some nine pages?---That's correct.
PN6365
Does it have some three attachments?---Yes.
PN6366
Mr Rewhorn, I understand there are some very minor changes you wish to make to your statement. I understand that your address is M5, not M7, 770 Blackburn Road; is that right?---That's right.
PN6367
And at paragraph 21 of your statement I understand the reference to Ms Mason in line 1, and Ms Mason in line 5 of that paragraph should be a reference to Ms M-a-z-i-n, not Ms M-a-s-o-n; is that correct?---That's correct.
PN6368
THE COMMISSIONER: Paragraph 25, did you say?
**** PAUL DENNIS REWHORN XN MR WOOD
PN6369
MR WOOD: Paragraph 21, line - - -
PN6370
THE COMMISSIONER: I am sorry.
PN6371
MR WOOD: Sorry, Commissioner.
PN6372
THE COMMISSIONER: I am sorry.
PN6373
MR WOOD: Lines 1 and line 5.
PN6374
THE COMMISSIONER: Thank you.
PN6375
MR WOOD: Having made those two changes, Mr Rewhorn, is your statement and the three attachments, or exhibit to it, true and correct?---Yes, they are.
PN6376
I tender the statement.
PN6377
PN6378
MR WOOD: Before my learned friend, Mr Bornstein, cross-examines you, Mr Rewhorn, I just want to ask you two questions. Can I direct you back in time to your period when you were an industrial officer for the ATEA and ask you about paragraph 7 of your statement. You see there, there is a reference to a trial whereby Telstra and the union reached an agreement in early 1989 for the introduction of 12-hour shifts; do you see that?---Yes.
**** PAUL DENNIS REWHORN XN MR WOOD
PN6379
What was the attitude by the union to that trial and to the introduction of 12-hour shifts?---There was concern in the union that this could be setting a precedent, the long hours, but following the association's rules permission for a trial did proceed.
PN6380
What was the nature of the concern expressed?---The main concern that I recall was setting a precedent of moving away from a 7/21-hour day to a 12-hour day, there was concern in terms of setting precedence and whether it was in the best interest of employees health and safety-wise.
PN6381
I have nothing further in examination-in-chief, Commissioner.
PN6382
PN6383
MR BORNSTEIN: Mr Rewhorn, it is your evidence, I take it, that you have been responsible for roster design?---Yes, I've done - - -
PN6384
At the Global Operations Centre?---Yes, I have done roster design.
PN6385
And you would therefore be familiar, would you not, with the recognition that roster systems are potential health and safety hazards?---They have potential for health and safety, yes.
PN6386
And that is due to, for instance, the disrupting impact on sleep patterns?---That is correct.
PN6387
The potential for fatigue to be generated?---That's correct.
**** PAUL DENNIS REWHORN XXN MS BORNSTEIN
PN6388
The known effects of fatigue on cognitive and physiological performance, judgment, behaviour and responses under situation of stress?---Yes, I am.
PN6389
The effects on long-term health?---I don't have any evidence for that, or knowledge of that.
PN6390
You don't; they are also recognised as a potential health and safety hazard due to the impact on an interface with family life?---Yes, that's an aspect, I understand.
PN6391
And the consequent effects on work of stressors at home associated with shift systems?---I'm not so - not too familiar with that subject.
PN6392
You designed shift systems, did you not, under the direction of Mr Malden in that period prior to October 2003?---No, I can't recall designing a shift for Mr Malden. I did do - put shifts together for costing and that sort of thing but I didn't design a shift that would be in operation specifically.
PN6393
So is it correct to say that your task was to cost the various proposals only and not to design shift rosters?---With Mr Malden, yes.
PN6394
And it was at that time you were located at a work station outside his office?---That's correct.
PN6395
And you consulted with him almost on a daily basis?---At periods, yes, I was consulting Mr Malden on a daily basis.
PN6396
And you consulted him about the various possibilities for change?---I discussed various shift arrangements were possible, yes.
**** PAUL DENNIS REWHORN XXN MS BORNSTEIN
PN6397
And were you aware at that time of the criteria that Mr Malden has established that he wanted to meet in any new shift roster?---I can recall some of the criteria, yes.
PN6398
Have you been responsible for the collection of data on sick leave taken under the 12-hour shift from about the beginning of 2000 until October 2003?---Not shift - 12-hour shifts, no.
PN6399
So your comment at paragraph 10 that in, or around late 1997 that 12-hour shifts were not working because, amongst other things, sick leave did not reduce under the 12-hour shift regime, is not relevant to that period from the beginning of 2000 to October 2003?---That's correct.
PN6400
You refer at paragraph 18 to the Sleep Solutions Report; do you remember that?---Yes, I do.
PN6401
What involvement did you have in the commissioning of that report?---I only endorsed Mr John Quinn suggested that to our management at the time that we commission a report.
PN6402
And did you have any direct involvement in its commissioning?---Only that I endorsed it in our management discussions.
PN6403
I see, and did you have any direct involvement in roster design following the Sleep Solutions Report?---Yes, I did.
PN6404
And what was that?---That was to look at a common 12-hour roster to be introduced around - the prospect of a 12-hour roster I should say - common - - -
PN6405
And did you design that common 12-hour roster?---Yes, I did.
**** PAUL DENNIS REWHORN XXN MS BORNSTEIN
PN6406
And is that the roster that was worked until October 2003 by certain employees at the Global Operations Centre?---I can only say certain employees. I can name the groups for you. I'm not sure of broadband.
PN6407
At that time that shiftwork - sorry, Sleep Solutions did it's report, consideration was given, was it not, to resources and workload?---No, not so much resources and workload, no, more in setting up a proper roster design and pattern.
PN6408
But the report found that 12-hour shifts were generally suitable for the work to be performed at that time - - -?---Yes.
PN6409
- - - at the Global Operations Centre?---Yes.
PN6410
You say at paragraph 26 that:
PN6411
The management team was concerned not to cut staffing levels as we're already running lean resources, in particular between 8 am and 5 pm on a Monday to Friday.
PN6412
?---That's correct, yes.
PN6413
When you say - referred to "lean resources", does that mean that the resources, in terms of staffing levels as against workload, were relatively tight?---That's correct.
PN6414
Yes?---At that time of 8 am to 5 pm.
PN6415
In terms of resources to match workload, Mr Rewhorn, is it a principle of roster design to build in, if you like, resources having regard for anticipated gaps in rosters?---Yes, it is.
**** PAUL DENNIS REWHORN XXN MS BORNSTEIN
PN6416
And what sort of a percentage, if it can be done like that, would you suggest would be an adequate percentage, if you like, extra to fill gaps?---If I can explain it, I think I can answer your question virtually in percentage terms so I can explain it this way: with a five-week 12-hour roster you would need about two-and-a-half days of relief and that's why often you'll see a 12-hour roster with a six-shift.
PN6417
When you say two-and-a-half days, over what period?---Sorry, what I'm trying to say is, that if you have a 12-hour shift with, say, just one person and you need the five people, you will need to plan at least for 25 weeks of leave.
PN6418
In that period?---In that period, which would be 50 per cent of your resources in that six-week.
PN6419
I see, and so in an ideal world would you create teams of a size to anticipate the leave that might be taken in a roster cycle to allow gaps to be filled?---Yes, you would.
PN6420
Now, you have acknowledged, Mr Rewhorn, that roster systems are recognised as a potential health and safety hazard due to factors including the potential for fatigue to be generated; you agreed with that?---Yes.
PN6421
Can I refer you to paragraph 28 of your witness statement, and do I understand your evidence to be that you collected data regarding the operation of the eight-hour shift roster, to monitor variables, particularly to check whether variables in the roster were indicative of fatigue; is that a fair summary of paragraph 28 and 29?---I don't go to the extent of saying "fatigue", but of working quite a number of consecutive shifts, yes.
PN6422
Could I ask the witness be shown this document?
**** PAUL DENNIS REWHORN XXN MS BORNSTEIN
PN6423
Do you recognise that document, Mr Rewhorn?---Yes, Mr Commissioner.
PN6424
And is that a document that - in which, the preparation of which you were involved in?---That's correct, Mr Commissioner.
PN6425
And is it a record of overtime worked between October and January - October '03 and January '04?---That's correct, yes.
PN6426
I tender that.
PN6427
PN6428
MR BORNSTEIN: Now, in your witness statement, Mr Rewhorn, you say that, at paragraph 31, you had concerns in a very small cases around four to five, about fatigue and you reported this to Mr Malden?---Yes, I sent the results of the spreadsheets to Mr Malden.
PN6429
You would agree, would you not, that CEPU43, which is the overtime records before you, demonstrates a number of instances where employees were working seven consecutive shifts?---That's correct, yes.
PN6430
And a number are where they were working six consecutive shifts?---That's correct, yes, Mr Commissioner.
PN6431
And it also demonstrates, does it not, that where additional shifts were worked, that recovery time would have been reduced by reason of coming in - by reason of an increased appearance at work?---Yes, it would, Mr Commissioner.
**** PAUL DENNIS REWHORN XXN MS BORNSTEIN
PN6432
You say that the date it was reported to Mr Malden and he put rules in place regarding limits on the number of consecutive shifts; do you know what the substance of those rules was?---No, I don't, Mr Commissioner.
PN6433
Have you ever seen them?---No, no I haven't, Mr Commissioner.
PN6434
You are aware, are you not, that it is a role of team leaders to operate the roster system in the areas in which the eight-hour roster is worked?---Yes, I believe team leaders manage the rosters.
PN6435
And you are also aware that it is the responsibility of employees, but certainly managers, to be cognisant of health and safety issues in the performance of their duties?---Yes, I am, Mr Commissioner.
PN6436
And you would expect, would you not, in those circumstances, that a roster would be maintained by a team leader which was cognisant of - which took into account proper roster practices having regard for recalls, overtime, breaks between shifts and other matters that constitute potential health and safety hazards arising from shiftwork?---Mr Commissioner, I'm just having a bit of trouble with that question. I'm trying to - - -
PN6437
Perhaps I will take it a bit slower? Given the responsibilities of team leaders you would expect that team leaders would organise rosters, having regard for the health and safety of the employees on a roster, wouldn't you?---Yes, Mr Commissioner.
PN6438
And you would expect a team leader to have regard to the numbers of consecutive shifts worked, would you not?---Yes, Mr Commissioner.
PN6439
You would have - expect a team leader to have regard for overtime worked, would you not?---Yes, Mr Commissioner.
**** PAUL DENNIS REWHORN XXN MS BORNSTEIN
PN6440
You would have - expect a team leader to have regard for the need for proper recover?---Yes, I would, Mr Commissioner.
PN6441
And you would also expect a team leader, as a manager, to have regard to award provisions, would you not?---Yes, I would, Mr Commissioner.
PN6442
And given that those are the obligations of a team leader - I withdraw that. You refer to Mr Nuttal's proposed roster; do you recall that?---Yes, I do, Mr Commissioner.
PN6443
You suggest that Mr Nuttal's roster provides additional coverage between 5 pm and 7.15 pm which you say is not a peak period?---In comparison with the 8 am to 5 pm the workload is reduced.
PN6444
But it is nonetheless higher, according to your calculations than it might be later on in the middle of night-shift?---Yes, it would be.
PN6445
And it therefore requires, if we are matching resources to workload, more employees between 5 pm and 7.15 than might be the case, say, at 2 am?---Could I just have that question again, please?
PN6446
The workload between 5 pm and 7.15 pm, on an average, would require more resources than in a given area than the workload would require, say, at 2 am in the morning, according to your calculations?---Not so much my calculations but based on tickets of work and measures of workload I'd say, yes, the workload would be higher between 5 pm to 7, compared to that time of 2 am that you mentioned, Mr Commissioner.
PN6447
And you agree, don't you, that tickets of work are no more than a reasonable indicator of workload?---Again, could I just have that question again, please?
**** PAUL DENNIS REWHORN XXN MS BORNSTEIN
PN6448
You agree, don't you, that tickets of work are no more than a reasonable indicator of workload?---Yes, they're a reasonable indicator of workloads.
PN6449
Because they - the work generated takes different times to resolve and requires varying levels of activity?---Again, I didn't hear that last part of the question, sorry, Commissioner?
PN6450
Because tickets of work that are generated take different times to resolve and require varying levels of activity?---Yes, that's correct, Mr Commissioner.
PN6451
So therefore they can be no more than an indicator; that is correct, isn't it?---That's correct, Mr Commissioner.
PN6452
And you refer to a change analysis in your witness statement, and they are attached at PR2, the changes, Mr Rewhorn, do not identify the different times taken to resolve a change, or whether the change is simple, or more complex?---That's correct, Mr Commissioner.
PN6453
So, again, it is an indicator, but no more than an indicator; that is correct, isn't it?---That's correct, Mr Commissioner.
PN6454
Can I ask you to turn to TR3 and that shows the calls per hour in a one-week period, does that - do those statistics include customer fault management?---There is mention of customer fault management. I'm sorry, I don't have a page number. I think it's on the last page of the attachment, and that has customer fault management.
PN6455
Customer fault management doesn't work 24 hours/seven day a week rosters, does it?---That's correct, Mr Commissioner.
**** PAUL DENNIS REWHORN XXN MS BORNSTEIN
PN6456
So, therefore, the calls in TR3 are not only representative of the calls per hour in 24/7 shift areas, they include calls coming in to customer fault management who are not working 24/7?---Yes, they include calls to customer fault management; they're not 24 by 7, yes.
PN6457
So they are not a precise reflection of the calls per hour in the areas that are working 24/7?---That would be correct if you had CFM in there, if you're comparing it to a 24 by 7, yes.
PN6458
Yes. In reference to Mr Nuttal's proposed roster you talk about the day relief shifts only covering Monday to Thursday, at paragraph 38; do you see that?---That's correct, yes.
PN6459
Yes. Assuming that there were, as is the case I think in transmission, three teams and each member had four team members - each team had four members; can you assume that?---I don't know if you're asking me to - - -
PN6460
I am asking you to make some assumptions, Mr Rewhorn?---Okay, sorry, I thought you were referring to another - - -
PN6461
No, so let us assume, for instance, transmission, with three teams - three groups, if you like, each with four - three teams of - I am sorry, I withdraw that.
PN6462
THE COMMISSIONER: Do you need a pen?---No, I'm right, thanks, Commissioner, I am following - - -
PN6463
MS BORNSTEIN: Yes, I am glad - - -?--- - - - I will have one if I need one, thank you, Commissioner.
PN6464
THE COMMISSIONER: All right.
**** PAUL DENNIS REWHORN XXN MS BORNSTEIN
PN6465
MS BORNSTEIN: Yes, I am glad the witness has one.
PN6466
Let us assume, in a particular area there are three teams operational and over a six-week period and there are four members per team. There would be 12 employees potentially rostered on day relief, would there not?---I would need to - to do some - - -
PN6467
Yes?---Could I have it again, please?
PN6468
Yes, assume there are three teams working over a six-week cycle with four members per team. On day relief you would have 12 possible shifts rostered, wouldn't you?---No, I'm not - I'm not following this, Commissioner.
PN6469
You say that, under Mr Nuttal's proposal, day relief would not cover Monday to Friday; that is what you say?---No, that's - sorry, can I have that again? I just need to be clear about this, Commissioner.
PN6470
No, well, perhaps we will come at it another way? Under - you say, Mr Rewhorn, at paragraph 38, that:
PN6471
The day relief shifts only cover Monday to Thursday.
PN6472
Do you see that?---Yes.
PN6473
And:
PN6474
Friday is generally as busy as every other weekday.
**** PAUL DENNIS REWHORN XXN MS BORNSTEIN
PN6475
?---Yes.
PN6476
Now, depending on the numbers of employees available for day relief in any given week, the rostering arrangements could be such as to spread the available employees over five, rather than four days, couldn't they?---Providing you gave due consideration to respite prior to and after that day - week.
PN6477
Yes, but if there were, for instance, 12 employees rostered on on day relief in any - between - in business hours in any given week, they could be spread across Monday to Friday, could they not?---Again, I say yes, but I indicate taking due recognition of respite prior to and after.
PN6478
You would also agree, would you not, Mr Rewhorn, that under a six - six-shift arrangement on a 12-hour - on 12-hour shifts, that the numbers on night-shift would be reduced by reason of the creation of an additional week from 5 to 6?---That's correct, Mr Commissioner.
PN6479
You would also agree that the work performed in the areas in contention at the Global Operations Centre is performed 24 hours a day, seven days a week?---Not for all work groups. There are some exceptions.
PN6480
But the shiftwork is performed in the areas in contention in this case, 24 hours a day, seven days a week?---Yes, that's right, Mr Commissioner.
PN6481
And there would be no reason, setting aside for one moment Mr Malden's criteria, why the teams that are currently working eight hours over six weeks could not be rostered over on 12 hours over six weeks? No logistic reason, Mr Rewhorn?---No, there's no logistic reason why it couldn't be.
PN6482
Could I just ask you to look at these documents? Could I ask you to look at the document headed Transmission Group One and then Eight-Hour Six Week?---The first one I've got the page, Mr Commissioner, yes. It's headed Eight-Hour Six Week?
**** PAUL DENNIS REWHORN XXN MS BORNSTEIN
PN6483
Yes?---Yes. Yes.
PN6484
Can you assume, Mr Rewhorn, that that is the roster, proposed roster, for the groups in transmission between 16 August and 26 September?---I'm not sure of - you mention 16 August, I don't recall - I'm still trying to - it's an eight-hour - I don't recall eight hours in operation in August, oh, sorry, this is August of this year, sorry.
PN6485
Of this year, that is right. So I am just asking you to assume that that is the roster for transmission between 16 August and 26 September this year?---I can make that assumption, yes.
PN6486
Yes, and you can also assume, can you, particularly from looking at the way the roster is completed, that it is an eight-hour/six-week roster?---That's correct, Mr Commissioner.
PN6487
Yes. Can I then ask you to look at the document headed 12-Hours/Six Weeks? You said that there is no logistical reason why employees presently rostered on eight-hours/six weeks could not be rostered on 12-hours/six weeks, looking at that 12-hour/six-week roster, would you agree that that would be a way of rostering the employees currently rostered on eight-hours/six weeks on 12-hours/six weeks?---I know you asked - I was asked whether this was an assumption?
PN6488
Yes?---I am having some problems with the pattern down below, so I don't know if that's matching workload, or what, but what it does indicate that there's a six-week there to me.
**** PAUL DENNIS REWHORN XXN MS BORNSTEIN
PN6489
I am not asking you any questions about matching workload, I am simply asking you, having assumed that the eight-hour/six-week roster is the roster in transmission between 16 August and 26 September, do you agree that the second document headed 12-hour/six-weeks, given that the teams and the names in the teams are identical, represents a 12-hour/six-week roster for those groups in transmission?---Yes, it does represent six-week. What I'm still failing to follow is what duration the shifts are down below on - if I took the second column from the 25th, I'm trying to understand what group 6 is.
PN6490
Group 6 is the same group 6 as appears on the eight-hour/six-week document?---Okay, yes.
PN6491
Yes?---But what shifts are those? What - I'm trying to find out, Mr Commissioner, is what duration those shifts are?
PN6492
They, all of them, are 12-hour shifts?---Now, I understand.
PN6493
Yes, so - and I am simply asking you to agree that that would be a representation of 12-hour shifts over a six-week cycle for groups 1, 2, 3, 4, 5 and 6 in transmission?---That's correct, yes.
PN6494
Yes. Commissioner, if I tender those?
PN6495
MR WOOD: I object to - I object to this, Commissioner. I just asked my learned friend on the bottom of the bar table how these documents were produced and I didn't get an answer? I would like to know - - -
PN6496
MS BORNSTEIN: Well, I didn't know you had asked it?
PN6497
MR WOOD: I am sorry, I didn't want to verbal my learned friend. I would like to know how these documents have been produced.
**** PAUL DENNIS REWHORN XXN MS BORNSTEIN
PN6498
MS BORNSTEIN: Commissioner, the documents were produced by members of the CEPU. I have asked the witness to make assumptions about those documents and it is on the basis of assumption that I seek to tender them.
PN6499
MR WOOD: Yes. My point - my point really is, I would like to have these documents proved in the normal way, or perhaps some information about how they were prepared and the assumptions behind them, so that we can either consent to them, or ask them to be proved in the normal way. But this witness, I don't think has sworn to the fact that he prepared them?
PN6500
THE COMMISSIONER: No, no, they are "what-ifs", aren't they?
PN6501
MS BORNSTEIN: Yes.
PN6502
MR WOOD: Yes.
PN6503
MS BORNSTEIN: They are "what-ifs".
PN6504
THE COMMISSIONER: Yes.
PN6505
MR WOOD: All right. I just don't know anything about the documents, how they have been prepared, what the assumptions are, how the day relief and day-shifts have been set up, whether there has been some aim to have coverage at days and nights in equal manner, or non-equal manner; I just don't - - -
PN6506
THE COMMISSIONER: But that can be discerned from the nature of the roster, can't it? You can give this to someone and say, "Answer these questions", and the information is contained in the document itself. That is as I understood the basis of which it is being sought to be put in.
**** PAUL DENNIS REWHORN XXN MS BORNSTEIN
PN6507
MR WOOD: Oh, well, they are not, right, I withdraw the objection, Commissioner.
PN6508
THE COMMISSIONER: All right. Unless I am wrong? Is that right, Ms Bornstein?
PN6509
MS BORNSTEIN: Yes.
PN6510
THE COMMISSIONER: Any of the questions that have - Mr Wood can have this examined, it will answer his questions because it is simply a representation of two rosters that have been produced which no doubt you will address in final submissions in some way.
PN6511
MS BORNSTEIN: Yes.
PN6512
THE COMMISSIONER: And they are sequential to the witness' response that, logistically, there was no reason why the eights couldn't convert to the twelves.
PN6513
THE COMMISSIONER: Well, I think he said that those two represent - one is an eight-hour/six-week roster and the other is a 12-hour/six-week roster.
PN6514
MS BORNSTEIN: For the same people.
PN6515
THE COMMISSIONER: Yes.
PN6516
MS BORNSTEIN: Yes.
PN6517
MR WOOD: As long as it is on that basis that it is a roster that might be worked. We don't know - the point has been made that it was an actual roster being worked for that period, on either basis, yes.
**** PAUL DENNIS REWHORN XXN MS BORNSTEIN
PN6518
PN6519
THE COMMISSIONER: Yes, Ms Bornstein?
PN6520
MS BORNSTEIN: You would agree, would you not, Mr Rewhorn, that the objective of a day relief shift under the eight-hour system was to provide increased resources on - between Monday and Friday between 8 and 5?---About those hours, yes.
PN6521
Yes, and you would also agree, would you not, that where day relief is utilised to fill gaps in the roster, that it diminishes the amount of resources available between - on Monday to Friday between about 8 and 5?---Can I have that question again? I just need - - -
PN6522
You would also agree, would you not, that where day relief is used to fill gaps other than on day-shift in a roster, that it reduces the amount of resources between Monday and Friday from about 8 am to about 5 pm?---Yes, that's correct, Mr Commissioner.
PN6523
And in those circumstances the objective of a better match with workload is reduced; you would agree, wouldn't you?---No, I wouldn't agree.
PN6524
One of the objectives was to increase, as you have said, to increase staff being rostered between 8 am and 5 pm; do you see that at paragraph 39 of your statement?---Yes, I do, the last paragraph, yes.
PN6525
Yes, and so you would agree, wouldn't you, that where day relief is not used between 8 am and 5 pm, that it reduces the number of staff being rostered between 8 am and 5 pm?---Yes, it does, Mr Commissioner.
**** PAUL DENNIS REWHORN XXN MS BORNSTEIN
PN6526
And, therefore, effects the balance between resources and workload, doesn't it?---I can't answer that particular question, Mr Commissioner.
PN6527
You can't?---I don't - I don't have any understanding of the workload in that area.
PN6528
Have you continued, Mr Rewhorn, to collect date on the taking of leave since about February 2004 to date in the areas in which the eight-hour shifts are presently worked?---Yes, I stopped collecting data for the period after 26 January 2004.
PN6529
So you have collected no data since?---That's correct, Mr Commissioner.
PN6530
And do you know whether any data - whether anybody else has been monitoring the operation as you did for those apparently two or three months late 2003/January 2004?---Sorry, can I just again get the dates?
PN6531
Do you know whether anybody else has been monitoring the data as you were doing for between about November 2003 and January 2004?---No, I don't know of any person who's been collecting data subsequent to 24 January.
PN6532
No further questions.
PN6533
PN6534
MR WOOD: Mr Rewhorn, you were asked some questions very early in your cross-examination about how much leave or "fat" one has to build into a 12-hour shift/five team roster; do you recall those questions?---Yes, I do, Mr Commissioner.
**** PAUL DENNIS REWHORN RXN MR WOOD
PN6535
You gave two answers to the questions. I didn't understand how they were related to each other. Your first answer was you needed two-and-a-half days leave; and your second answer was you needed 25 weeks leave?---Yes.
PN6536
What do you mean by those two statements?---Yes, I'll try and better phrase it: if you take an assumption that you've got a single person roster over five weeks and you want to - sorry, you've got five people operating that roster, they'll need 25 weeks of leave coverage that you have to plan for and, therefore, effectively, that means you need another person to cover that - half a person, I should say, to cover that. The other half relates to provisioning for - would provide just a resource in the daytime.
PN6537
I am not sure it has made it any clearer to me, Mr Rewhorn? How does that relate to your answer, about two-and-a-half days?---What I was trying to say was that 50 per cent of the six-week, 50 per cent of that would be needed to provide relief to the other shift if it was deemed that those shifts would need relief.
PN6538
Can you have a look at exhibit CEPU43? That is the document, that one there, Mr Rewhorn?---Thank you.
PN6539
You see the first page of that document is headed - is page 24, and it goes through to page 39 at the back?---That's correct, Mr Commissioner.
PN6540
I understand you identified this document as being a document you produced, that is you, personally; is that right?---I - this is a result of data I collected and entered with Mr Fullerston at the time, Mr Commissioner.
PN6541
Can you recall what appeared at pages 1 to 23, or not?---No, I can't, I've previously seen this in electronic form, Mr Commissioner.
PN6542
You were asked some questions about CFM and the extent to which people within CFM work 24 hours, that is on a 24/7 basis; do you recall those questions?---Yes, I was, Mr Commissioner.
**** PAUL DENNIS REWHORN RXN MR WOOD
PN6543
Are you aware of a group within CFM known as Inter-Carrier Bulk Management?---Yes, I am, Mr Commissioner.
PN6544
And do you know whether or not that group within CFM works on a 24/7 basis?---That group works on a 24 by 7, yes.
PN6545
Commissioner, I don't have any other questions in re-examination for Mr Rewhorn, other than this caveat that I will have to get some instructions on the documents that were tendered as CEPU44. I hope it doesn't require the recall of anyone? I trust it will [sic], but it may. I trust it won't, I beg your pardon?
PN6546
PN6547
PN6548
THE COMMISSIONER: Thank you. Please sit down, Mr Roberts.
PN6549
MR WOOD: Mr Roberts, can you face the Commissioner and give the Commissioner your full name?---Ronald Paul Roberts.
PN6550
What is your work address, Mr Roberts?---Ground Floor, Building 7, 770 Blackburn Road, Clayton.
PN6551
Are you employed by the respondent in these proceedings, Telstra Corporation Limited?---Yes, that's correct.
PN6552
And in what position are you so employed?---I'm team leader within the Broadband and IT Group as team leader of the Broadband and IP Networks.
PN6553
I am sorry, there is a little bit of noise outside; what was the last bit of your answer there?---As team leader for Broadband and IP Networks.
PN6554
In your position as a team leader for Broadband and IP Networks have you made a witness statement in this proceeding?---Yes, that's correct.
PN6555
Do you have it in front of you, Mr Roberts?---No, I don't at present.
PN6556
I will have one passed to you. Does your witness statement run to four pages and is dated May 2004?---Yes, that's correct.
PN6557
Is there attached to your witness statement three exhibits?---Yes.that's correct.
PN6558
Have you had the opportunity to read your witness statement and the exhibits prior to coming into the witness box here today, Mr Roberts?---Yes, I have.
**** RONALD PAUL ROBERTS XN MR WOOD
PN6559
Can I direct you to paragraph 13 of your witness statement?---Yes.
PN6560
You say there in the third sentence:
PN6561
These shifts would be worked on any day of the week including weekends.
PN6562
And then the fourth sentence:
PN6563
In approximately the middle of August Mr Simmons to 10-hour shifts again on days only.
PN6564
Are there any changes you wish to make to those sentences in paragraph 13?---No.
PN6565
Is your witness statement otherwise true and accurate?---Yes, it is.
PN6566
I tender the statement.
PN6567
PN6568
MR WOOD: Mr Roberts, before my learned friend, Ms Bornstein, cross-examines you, I would just like to ask you a couple of short questions about your statement. Can you indicate how many rosters there have been in your area since October 2003?---There's been four implemented rosters.
**** RONALD PAUL ROBERTS XN MR WOOD
PN6569
And have those rosters all been eight-hour shift rosters?---Yes, that's correct.
PN6570
And have they been a combination of eight-hour/five team - eight-hour shift/five team rosters and eight-hour shift/six team rosters?---Yes, that's correct.
PN6571
And how many of each?---I'm sorry, could you - - -
PN6572
What was the - how many eight-hour/five team rosters and how many eight-hour/six team rosters out of the four rosters that you say have been in operation since October 2003 in your area, Broadband and IT?---I can't honestly recall how many - the breakdown of each one. We've had - no, I can't honestly recall the breakdown of the numbers.
PN6573
Ms Booth, I think, is going to give evidence shortly about some rosters, the first - - -
PN6574
MS BORNSTEIN: Ms Cross.
PN6575
MR WOOD: I am sorry, Ms Cross, is going to give some, I thank my learned friend, some evidence about the first two rosters of an operation in your area?---Yes.
PN6576
At what stage did you become involved in implementing changes to the rosters?---I was involved from - with the last two rosters that were - have been put out in the change - change to those rosters.
PN6577
And when did those rosters run from?---The roster commencing 29 January and the roster that's now taking place from now, from 15 July.
**** RONALD PAUL ROBERTS XN MR WOOD
PN6578
From when, sorry?---From 15 July.
PN6579
And did the roster that you were involved in implementing on 29 January run to 15 July?---It did for the most part of our group. There was a small team established as one of our virtual teams and that commenced on approximately the 7th, or the 17th, I can't exactly recall, of May.
PN6580
To what extent are you aware - to what extent have you in the rosters you have been involved with, that is the one from 29 January and the one from 15 July, to what extent have you involved the employees from your group in determining the nature of the roster?---The roster on 29 July - January, there was not as much consultation prior to the delivery of the roster as what we would have liked, due to the time-frames. However, the roster on the - that started in May for the virtual team, there was consultation with all of the staff that were in that group at the time.
PN6581
And what about the roster that started on 15 July?---The roster that was on 15 July was the implementation of the same roster template used on 7 May for the virtual team, then put across to the remaining staff in the group and there was noted right from July - May through to July we were discussing with the staff that there would be moving to this new structure and the same roster template would be in place and then it was notified to the staff I think approximately two weeks prior to - two to three weeks prior to us actually commencing the new roster, they received a letter and template.
PN6582
And what level of feedback did you obtain on that roster which was implemented on 15 July?
PN6583
MS BORNSTEIN: I object; it is hearsay.
PN6584
MR WOOD: If we hadn't taken this - this, or that position, that objection to the evidence in this case, you might have only had half the folder rather than 10 in front of you. It is hearsay. I accept it is hearsay but we - - -
**** RONALD PAUL ROBERTS XN MR WOOD
PN6585
THE COMMISSIONER: Well, what is the purpose of the answer, for me to hear?
PN6586
MR WOOD: Just to show that there has been consultation in relation to this roster.
PN6587
THE COMMISSIONER: Well, it has been said there has been, hasn't there?
PN6588
MR WOOD: There is no further in examination-in-chief.
PN6589
PN6590
MS BORNSTEIN: Mr Roberts, you said there has been consultation with staff on roster changes, to your knowledge, since January. It is a fact, is it not, that the consultation did not include a return to 12-hour shifts?---Yes, that's correct.
PN6591
And the complication revolved around the continuation of the eight-hour shifts; that is correct, isn't it?---Yes, that's correct.
PN6592
Can I take you to paragraph 14 of your witness statement? You say that Mr Simmons was absence during the night-shifts that he was scheduled to work? He was scheduled on 11 and 12 October 2003, was he not?---I believe so.
PN6593
Yes, and that he took, at that time, carer's leave with a medical certificate; you would agree with that, wouldn't you?---I - I would have to agree with that. I haven't - cannot recall the exact details of the absence.
**** RONALD PAUL ROBERTS XXN MS BORNSTEIN
PN6594
But it certainly was an authorised absence, wasn't it?---Yes.
PN6595
Now, you have given evidence that there have been four shift changes since October 2003. It is a fact, is it not, Mr Roberts, that the shift roster attached to your statement and marked RPR3, is no longer in existence?---Yes, that'd be correct.
PN6596
And it is a fact, is it not, that you are now operating on a six-team arrangement in Broadband and IT?---Yes, that's correct.
PN6597
Each team answering to a team leader?---Each groups of team answering to a team leader. I have two of those teams that report to myself. The other two report to Leonie Cross and two others to Jeff Lovell.
PN6598
And the shift pattern is day-shift, afternoon shift, and night-shift with a day relief roster as well; that is correct, isn't it?---Yes, that's correct.
PN6599
So it follows the general pattern at the Global Operations Centre - if you don't know, don't answer that?---I don't know the pattern of the operation of the centre so I can't.
PN6600
And the objective of day relief is to provide greater resources on day-shift; is that your understanding?---The day relief week that is in there is to allow for coverage of sick leave, or more to the coverage of annual leave, so that we can increase our numbers on the day-shift, yes, but also have the - be able to notify staff that we are - the coverage of leave.
PN6601
So do I understand your evidence to be that you would move people around from day relief to other shifts as required, to cover gaps?---We would - that day relief is used for covering planned leave so, therefore, in advance, notification to staff of a change of shift for that relief week, not just purely and simply for: we need to change something tomorrow, or something along those lines, without consultation with the staff of that change.
**** RONALD PAUL ROBERTS XXN MS BORNSTEIN
PN6602
But the effect is that your utilisation of day relief is that employees who are rostered on day relief might not always work on day-shift?---That's correct, with as much notice as possible of the circumstance.
PN6603
Yes, that was not the question. It is necessary, is it not, in your group, Mr Roberts, to ask employees to work overtime from time to time?---Yes, that's correct.
PN6604
And that that overtime can be up to four hours in addition to the eight-hour shift?---In general, no. The maximum that we will ask someone to work additional past their shift is two hours. There has been minimal occasions when we have had to ask people to work back any longer than that.
PN6605
And it is also necessary, is it not, to recall employees to fill gaps in shifts from time to time?---Yes, when sick leave occurs.
PN6606
Yes. Under the AWAs, employees have some obligation to accept overtime and recall, do they not?---I - I can't answer that, I haven't read through an AWA contract to that 'nth degree. We treat all staff the same.
PN6607
Your employees are encouraged to work as a team, are they not, Mr Roberts?---Yes, that's correct.
PN6608
And teamwork, you would agree, involves helping people out - helping one another out?---Yes, I'll agree to that, yes.
PN6609
And it would be an element of teamwork, would it not, that employees would accept changes in shifts, or recalls, for the overall benefit of the team?---You could see it that way, yes, but no one is forced to accept a recall, or forced to accept overtime.
**** RONALD PAUL ROBERTS XXN MS BORNSTEIN
PN6610
But it is, you would agree, it is part of working together as a team to support and backfill for one another?---I would agree that - the way I work is that I support my other team members and, yes, I would do that.
PN6611
How many contractors are employed in Broadband and IT, currently, Mr Roberts?---I can't answer that, to be honest, it's not something that I keep a firm track of in my mind of how many people are on contract.
PN6612
How many people in your group, in the groups that you supervise, are employed on contract?---Once again, I - I can't answer that now. This is not something that I keep foremost in my mind as to whether, or not someone is on a contract, or not, in the way I treat the staff, so it's not something that's foremost in my mind.
PN6613
Contractors are of a fixed term duration, are they not?---Yes. Yes, they are.
PN6614
So you would need to know, wouldn't you, the duration of an employee's contract to enable you to roster that person?---They - yes, they are. I don't end a roster at the end of their contract. I anticipate, or work whether or not they are going to be there or they're going to extend their contract by their choice.
PN6615
Would it surprise you if I suggested to you that about - there are about 10 employees employed on shiftwork in Broadband and IT who are presently working on contract?---Quickly doing the numbers in my head I'd say that's probably - probably right, yes.
PN6616
And that is about, what, one-tenth? How many staff are rostered on eight-hour shifts 24/7?---We have six teams of six, plus a shift-leave team so seven - leaves - six, approximately 48 staff.
PN6617
And so it is 10 out of 48 are on contract?---Yes, I'd have to agree with that.
**** RONALD PAUL ROBERTS XXN MS BORNSTEIN
PN6618
The work performed by Broadband and IT, it covers 24 hours a day, seven days a week, does it not?---Yes, it does.
PN6619
And there is no logistical reason, is there, Mr Roberts, why employees currently rostered 24/7 on eight-hour shifts could not be rostered 24/7 on 12-hour shifts?---No.
PN6620
No further questions.
PN6621
PN6622
MR WOOD: Mr Roberts, you were asked some questions about employees on contract, by that do you mean employees who are working under an AWA, or is the some other contract?---At first, my first thought was to people on AWAs but I now understand that the questions were more around people that are on contract via - through the contract agency that work in the group.
PN6623
So what was your answer given into - sorry, you gave an answer of about 10 employees working on contract; did that mean on AWAs, or through an agency, or both?---Through an agency.
PN6624
You were asked some questions about whether or not, how it is that employees who were working day relief came to be working on other shifts and whether, or not that created problems for the day-shift; how has this roster, in general terms, worked?---The, in general terms, the roster that we have in place now seems to be working fairly well.
PN6625
And have there been any comments, either positive or negative, from the staff about that?
**** RONALD PAUL ROBERTS RXN MR WOOD
PN6626
MS BORNSTEIN: Hearsay; I object.
PN6627
MR WOOD: I won't press it, Commissioner.
PN6628
THE COMMISSIONER: Thanks, Mr Wood.
PN6629
MR WOOD: There is nothing further.
PN6630
PN6631
MR WOOD: Commissioner, I think - my learned friend and I think that we might be able to finish our evidence by about one o'clock - - -
PN6632
THE COMMISSIONER: We will sit on.
PN6633
MR WOOD: - - - that is our evidence for today.
PN6634
THE COMMISSIONER: We will sit on. Nobody needs a break? No? We will sit on.
PN6635
PN6636
THE COMMISSIONER: Please sit down, Ms Cross.
PN6637
MR WOOD: Ms Cross, can you face the Commissioner and give the Commissioner your full name, please?---Leonie Anne Cross.
PN6638
Ms Cross, what is your address?
PN6639
THE COMMISSIONER: Business address?---770 Blackburn Road, Clayton.
PN6640
MR WOOD: And are you employed by Telstra Corporation Limited?---That's correct.
PN6641
In what position are you so employed?---I'm a Broadband and IT team leader.
PN6642
In your position as Broadband and IT team leader, have you made a witness statement in these proceedings?---That's correct.
PN6643
And do you have it in front of you, Ms Cross?---No, I don't.
PN6644
I will just have it handed to you? Is it five pages and dated April 2004, Ms Cross?---Yes.
PN6645
I understand that there are - there is at least one change you wish to make, that is to paragraph 9 of your statement. Is it true to say:
PN6646
Staff prefer the roster developed by Mr Grant and with two minor alterations this roster was implemented on 23 October 2003 - - -
**** LEONIE ANNE CROSS XN MR WOOD
PN6647
or 22 October 2003?---Sorry, could you ask that question again?
PN6648
You see that you refer to a date in paragraph 9, that this roster was implemented on 23 October 2003; is that accurate?---I believe so, if it's a day or - I believe so.
PN6649
Commissioner, we don't propose to read, or have treated as read in evidence paragraphs 14 to 24 of Ms Cross' statement. That relates to - it is responsive evidence to that of Ms Booth who I confused this witness with just 10 minutes ago Ms Booth wasn't called to give evidence and we don't propose to rely upon paragraphs - - -
PN6650
MS BORNSTEIN: Fourteen to 25?
PN6651
THE COMMISSIONER: That would delete paragraph 14 to 25?
PN6652
MR WOOD: Fourteen to 24.
PN6653
THE COMMISSIONER: Twenty-four.
PN6654
MR WOOD: We propose to read paragraph 25. That is evidence in our case.
PN6655
THE COMMISSIONER: Thank you.
PN6656
MR WOOD: Ms Cross, with the deletion of paragraphs 14 to 24, is your statement true and correct?---Yes, it is.
PN6657
I tender the statement.
**** LEONIE ANNE CROSS XN MR WOOD
PN6658
PN6659
MR WOOD: Ms Cross, we have just heard some evidence from Mr Roberts who, I understand, is also a team leader in your Broadband and IT group; is that right?---That's right.
PN6660
And Mr Roberts gave some evidence about changes to the roster in your, I should say "group", in your team, from 29 January, 17 May and 15 July; were you involved in any roster changes prior to that time?---Yes, I was.
PN6661
And can you tell the Commission when those roster changes were and how they came about?---There was that - the roster that I was involved in was the transitional roster which was implemented in September with consultation with my staff.
PN6662
It was implemented in when did you say, Ms Cross? It was implemented in?---September.
PN6663
September 2003?---That's correct.
PN6664
And were you involved in any other changes to the roster since that transitional roster finished on 22 October 2003?---No.
PN6665
Is Mr Mick Simmons a member of the team who you are the team leader for?---Mick Simmons was in my team. He's now in Ron's team.
**** LEONIE ANNE CROSS XN MR WOOD
PN6666
Prior to the change to eight-hour shifts in your group, was Mr Simmons employed at the GOC on 12-hour shifts?---No, he wasn't.
PN6667
I understand your group is going through some changes and has been over the past year, Ms Cross. When was the Broadband and IT group, or team created?---The group was created around - it was around June 2003.
PN6668
When were you - when did you come to work at the GOC, Ms Cross?---That's what I was trying to work out. I started at the GOC in April 2003.
PN6669
And roughly how big was the group that you looked after when you started in April 2003?---The group - I had 28 staff when I started in 2003.
PN6670
And how many staff are there within the group now?---Approximately 48 staff.
PN6671
How many team leaders were there when you started in April 2003?---Myself.
PN6672
And how many team leaders?---We have four team leaders within Broadband and IT.
PN6673
In April 2003 was there a variety of people working on a variety of shifts?---Yes, there was.
PN6674
Who were - how many people were working what sort of shifts?---I had 14 staff on 12-hour shifts, 10 staff on 10-hour shifts and four staff on eight-hour shifts.
PN6675
Were there any difficulties with that sort of shift arrangement, from your perspective as a team leader?---From my perspective as a people manager it was extremely difficult to get to my staff. I had to work longer hours, either stay back until after 7 o'clock, or come in prior to 7 o'clock in the morning if I wanted to reach my staff to perform my duties as a team leader.
**** LEONIE ANNE CROSS XN MR WOOD
PN6676
Do you find the current roster, which I think has been designed by Mr Roberts, to be - it is now in operation, to be easier in that perspective from your position as a team leader than the roster that you - the rosters that were in operation in April 2003?---Yes, it is.
PN6677
Why so?---It's easier to get to my staff. My staff are at work more often. We have a shift hand-over period where I can take my staff away from the area as - whereas before I could never take my staff from the floor because we could never leave nobody in the area. I have the opportunity to catch up with my staff and not have to stay back the hours that I did.
PN6678
I just want to show you an exhibit that has been tendered in the proceedings, Ms Cross, it is exhibit Telstra 8. This is a document that was tendered by Mr Malden when he came to give evidence, and shows some changes within your Broadband and IT group as at June 2004. Can you turn to page 7, please, Ms Cross? Is that a summary of the Broadband and IT group organisation as at today's date?---Yes, it is.
PN6679
And what change was brought about in June 2004 within that group?---That change that was made was moving to the virtual teams.
PN6680
What does that mean?---It means that we've actually set up separate groups to look after separate technologies so as the slide - you'll see on the slide, I have a group which is internal IT, which is six people. I have a group of hosting, which is six people. There's a team for Ron which is Big Pond which is six people, also a team of six people of IP Networks and the same goes with the alarming teams. So the virtual teams are set up basically to look at those technologies, work on those technologies, and where we need resources to help out. Once, you know, we don't have work for certain technologies the resources can help out in the other technologies.
PN6681
How do you and Mr Roberts divide up work in relation to the roster?---In relation to the roster? Can you clarify the question, please?
**** LEONIE ANNE CROSS XN MR WOOD
PN6682
Whose responsibility is it as between you and Mr Roberts to manage the roster?---Mr Roberts manages the roster.
PN6683
Do you have any involvement in the rostering process?---No, I don't.
PN6684
The change that you have identified on page 7 of Telstra 8, is a change in the structure of the teams. Has there been any change to the type of work that is being performed within that group as opposed to the type of work that was performed within that group when you first started in April 2003?---Yes, there is. We've taken - the group has grown and we've brought - we've brought in more work.
PN6685
What do you mean by that?---Well, we didn't have - we weren't looking at Big Pond when I first started with the team, so that's a new technology that's come into the group. And the volume of the work has increased so different products have been brought into the group which had - they might come under the same technology but it's just different products, or it is different work but it comes under the same technology.
PN6686
When did the Broadband work come into the group?---The Broadband - - -
PN6687
I am sorry, Big Pond work?---Yes, the Big Pond team was created in May.
PN6688
May of 2004?---Correct. The other - the other work that came into it, well, we were doing the work but the work increased, was in the hosting team within my space.
PN6689
When you say "the work increased" what do you mean by that?---There was more focus put on to hosting so we had to create - we actually created a virtual team before the other virtual teams, for the hosting. The hosting products had a higher focus on it, that's why we created a virtual team just to look at hosting.
**** LEONIE ANNE CROSS XN MR WOOD
PN6690
Nothing further in examination-in-chief, Commissioner.
PN6691
PN6692
MS BORNSTEIN: Ms Cross, it is your evidence, is it, that when you started you had 24 reports - 24 staff under your supervision, or was it 28?---I believe I had 28.
PN6693
Twenty-eight; and now you are responsible for two groups; is that correct?---That's correct.
PN6694
And you are responsible for what, 12 employees?---No, the two groups have six staff members. I also have two technology leaders for that group, for those two teams, and two - one day-time worker only who floats across the virtual teams and a quality analyst.
PN6695
Correct me if I am wrong, does that make 16?---That's correct.
PN6696
So that is a bit of a reduction on the numbers that you - on 28?---Yes, it is.
PN6697
You will recall in your - I will withdraw that. It is correct, isn't it, that the current roster worked in Broadband and IT, is a six-team roster working day, afternoon and night-shift with a day relief shift?---Yes.
PN6698
And that provides you, does it, with adequate coverage between 7 am and 9 pm?---Yes.
**** LEONIE ANNE CROSS XXN MS BORNSTEIN
PN6699
You said that you are not responsible for roster changes at all. Does that mean, Ms Cross, that employees under your supervision contact Mr Roberts in relation to shift absences, or do they still come through you?---I didn't actually say I wasn't responsible for shift changes. I think the question was asked: am I responsible for the running of the roster as in the ongoing maintenance of the roster. I am responsible for shift changes and the staff do call me for absences, yes.
PN6700
In relation to day relief, Ms Cross, day relief - employees on day relief are used from time-to-time on other shifts, are they not, to fill gaps?---They are.
PN6701
And from time-to-time staff are recalled off shift to fill gaps in shifts?---They are.
PN6702
And from time-to-time employees are asked to work overtime?---That's correct.
PN6703
And one of your jobs as team leader is to generate a co-operative team arrangement; that is correct, isn't it?---Yes.
PN6704
And part of that co-operative team arrangement you would expect employees to support the team by filling gaps in rosters if possible, when such gaps arise?---They're given an option, it's not an expectation.
PN6705
You have employees under your direction on AWAs, do you not?---I do.
PN6706
And you are aware, are you not, that employees on AWAs have a built-in component for recall and overtime?---I do.
PN6707
And you are aware that that obliges employees on AWAs to work recall and overtime?---A certain amount of recall and overtime, yes.
**** LEONIE ANNE CROSS XXN MS BORNSTEIN
PN6708
The coverage of work in the areas in which you are team leader is performed 24 hours a day, seven days a week; that is correct, isn't it?---That's correct.
PN6709
And there is no logistical reason, is there, Ms Cross, why employees could not be rostered on 12-hours, rather than eight-hour shifts?---I don't believe so.
PN6710
Are you aware that a number of employees who are employed in Broadband and IT are on contract as opposed to AWAs?---Yes.
PN6711
You would agree that there - would you, that there would be about 10 employees employed on contract?---Approximately 10, yes.
PN6712
Are you aware of the conditions of those contracts in terms of remuneration?---Can you clarify the question, please?
PN6713
Do you know how much the contractors are paid?---Yes, I do.
PN6714
How much are they paid on a weekly basis, Ms Cross?---I - I couldn't give you that figure. I've got the details back at work and, yes, I couldn't pluck a figure out of my head, it wouldn't be true.
PN6715
Can you produce the figures?---I have the figures at work.
PN6716
Yes. I ask that the witness produce the figures in relation to the payment of the contractors engaged in Broadband and IT, if convenient, on a monthly basis.
PN6717
MR WOOD: Subject to relevance, Commissioner, I don't have any issue. I don't quite understand what the point of the - what the point of the evidence is but perhaps - - -
**** LEONIE ANNE CROSS XXN MS BORNSTEIN
PN6718
THE COMMISSIONER: We can deal with that later.
PN6719
MR WOOD: Yes.
PN6720
THE COMMISSIONER: The relevance question.
PN6721
MR WOOD: Yes.
PN6722
THE COMMISSIONER: Yes, you will be contacted?---Okay.
PN6723
PN6724
MR WOOD: Ms Cross, you might know the answer to this question and if you don't just tell me that you don't. Do you know what happens to that part of an AWA employee's additional payments if they take up their right to not work any additional overtime?---I'm not sure. I haven't - it would only be - no, I'm not sure.
PN6725
There is nothing further, Commissioner.
PN6726
THE COMMISSIONER: If there needs to be some clarity as to whether there are duties and obligations or, you know, that could be dealt with - - -
PN6727
MR WOOD: Yes.
PN6728
THE COMMISSIONER: - - - in submissions if you could?
**** LEONIE ANNE CROSS RXN MR WOOD
PN6729
MR WOOD: Yes, we will - we will speak to Mr Vimalanathan about that.
PN6730
THE COMMISSIONER: All right, thank you.
PN6731
MR WOOD: He may be able to deal with it.
PN6732
PN6733
MS BORNSTEIN: I indicated this morning that the respondent produced a couple of documents. I still am a bit unclear as to the substance of one of those documents but I am clear on the substance of the second document which relates to savings between shift patterns. The Commission will recall that yesterday there was some discussion about the savings that might accrue from the introduction of a six-team 12-hour shift and if I might tender the document produced, which identifies those savings between shift patterns? I need a tutorial from my learned friend's instructing solicitor on the other document so if I might reserve my position on that one, Commissioner?
PN6734
THE COMMISSIONER: This will be in-confidence?
PN6735
MS BORNSTEIN: Yes.
PN6736
THE COMMISSIONER: Yes.
PN6737
MS BORNSTEIN: And of particular relevance is the right-hand box in the exhibit under "Savings between Shifts" pattern.
PN6738
PN6739
MS BORNSTEIN: If I could just draw to the Commission's attention the difference as between 1.12 million and 1.5 to 7?
PN6740
THE COMMISSIONER: I accept there is a difference.
PN6741
MS BORNSTEIN: Commissioner, the matter, I believe, is listed for another two days.
PN6742
THE COMMISSIONER: Yes.
PN6743
MS BORNSTEIN: There are two more witnesses. I would not expect that we would need perhaps more than half a day to complete those witnesses. My learned friend and I have been discussing the time-tabling of the submissions and the extent to which we need to deal with the Commission in-confidence submissions in writing, or in closed Court. As it were, we haven't reached any final position, we have moved with some alacrity this morning. It may be, subject to the Commission's availability, convenient to have a short break between the witness evidence - the finalisation of witness evidence and submissions, which would enable counsel to draw the Commission's attention in particular to transcript references. My learned friend is keen to ensure that I meant weeks and not hours. I was actually thinking more of days.
PN6744
THE COMMISSIONER: I see.
PN6745
MS BORNSTEIN: But, you know, a period of days.
PN6746
THE COMMISSIONER: I see, yes.
PN6747
MS BORNSTEIN: I am also minded from that context, that the Commission did indicate early in the proceedings, that there - and I am afraid I don't have the transcript references to hand, but there should be some discussions between the parties following the conclusion of the evidence. That may also impact on the time-frame for the submissions. My preference, if I might put it at this point, is that the union prepare an outline of submissions that they be spoken to and that for the period in relation to those submissions that relate to the budget and other matters in-confidence that that be in closed session.
PN6748
THE COMMISSIONER: That the submissions be in closed session?
PN6749
MS BORNSTEIN: Only in relation to the - - -
PN6750
THE COMMISSIONER: Budget.
PN6751
MS BORNSTEIN: - - - budget, yes.
PN6752
THE COMMISSIONER: Yes, yes. Yes; no, I follow.
PN6753
MS BORNSTEIN: Yes, otherwise I fear we could be exchanging submissions-in-reply, so - - -
PN6754
THE COMMISSIONER: Sure.
PN6755
MS BORNSTEIN: - - - for a period that may not assist the Commission, or our respective clients.
PN6756
THE COMMISSIONER: No, it is - I am quite happy to have outlines and then oral submissions. The only caveat I have on that is that I hope that counsel would confer sufficiently so that nobody says they need time to consider what is said, that is all. I would just be anxious about another day if we set down a day?
PN6757
MS BORNSTEIN: Well, I would hope that I won't be surprised.
PN6758
THE COMMISSIONER: No.
PN6759
MS BORNSTEIN: Mr Wood rarely surprises me.
PN6760
THE COMMISSIONER: Yes.
PN6761
MS BORNSTEIN: Given that - - -
PN6762
MR WOOD: Commissioner, my learned friend and I were having discussions about exactly that point. One, we were concerned that if there wasn't some, I don't mean detailed submissions, but some order in the written submissions it might be that we get to oral submissions and we are just ships passing in the night, because I rather imagine a lot of our submissions will be directed to the underlying evidence and the utility of the orders.
PN6763
THE COMMISSIONER: Yes.
PN6764
MR WOOD: And I rather imagine my learned friend may well try to re-fashion the order that she - that the union seeks and we would prefer that process - we don't want it to occur but if it is to occur we would rather have it happen prior to the time when we come and make submissions.
PN6765
THE COMMISSIONER: Yes, indeed. And I think that could be comprehended by some discussions - - -
PN6766
MR WOOD: Yes.
PN6767
THE COMMISSIONER: - - - like, you know, I raise the discussions in this context that we have now heard, or nearly heard all the evidence and each has a - should have a clear understanding of the issues of concern and if there is a way of moving through it that could lead to an agreed outcome it would clearly save us all a lot of trouble.
PN6768
MR WOOD: I think from Telstra's perspective that is something they would be more than happy to countenance.
PN6769
THE COMMISSIONER: Yes, and if you get to a stage where you think that a conference which I might chair, might assist resolve an issue that counsel thinks is resolvable but can't quite see why the other counsel takes such an obstinate view, then I am happy to see whether I can help.
PN6770
MR WOOD: We had some discussions about that very matter, Commissioner, and I am sure we will continue to have them.
PN6771
THE COMMISSIONER: Yes, that would be good. All right, well, the next day of sitting is the 13th - yes, 13 of October.
PN6772
MS BORNSTEIN: Just for the purposes of the record, Commissioner, could I say that I have advised my learned friend that there will be an amendment to the order.
PN6773
THE COMMISSIONER: Yes.
PN6774
MS BORNSTEIN: I didn't want to amend it in the running until all the evidence was in because it is quite clear that the respondent's operations are, to some extent, an immoveable feast. I have indicated to my learned friend how I see that - those amendments, the substance of those amendments having regard to the changes in organisation, and certainly he will have them before the final submissions and, hopefully, shortly after the evidence is complete.
PN6775
THE COMMISSIONER: I also raised it at a much earlier stage, the convention. Can you give some attention to the convention and its relevance or application to any order? And I should indicate the other thing that is going through my mind is in relation to the convention, it talks about specific circumstances. Now, those aren't circumstances which necessarily have an enduring life, that go on year, after year, after year, there may be alterations to circumstances.
PN6776
MS BORNSTEIN: Like when the kids leave home?
PN6777
THE COMMISSIONER: Indeed, growing up, or other carer responsibilities that, if there is anything that provides a variable there you might turn some attention to.
PN6778
MR WOOD: Commissioner, my learned friend did say that she was proposing to amend the order that she was seeking. Obviously, I can't say anything in relation to that until we see it. When we see it I will get some instructions on it, but it is true that she did say that she was going to give me one prior to the final submissions. Given that, Commissioner, would it be sensible to vacate the 14th? If we just have - I didn't understand my learned friend to want to do submissions on the 14th?
PN6779
THE COMMISSIONER: No, no. Well, given the excellent adherence to timing today I think I can probably do that with some confidence, can't I, vacate the 14th and we will just leave the 13th?
PN6780
MR WOOD: Yes.
PN6781
THE COMMISSIONER: All right, well, we will do that and between now and the 13th we will - well, we will speak to you early October to try and arrange for a subsequent time but by then we should know a bit closer how you are going. All right. Thank you, very much, the matter is adjourned till 13 October.
ADJOURNED UNTIL MONDAY, 13 OCTOBER 2004 [1.12pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #CEPU42 FORMAY QUALITY ENGINEERING TECHNICAL REPORT RE CHAIRS PN6231
EXHIBIT #TELSTRA21 2004 INDIVIDUAL PERFORMANCE AND DEVELOPMENT PLAN PN6357
PAUL DENNIS REWHORN, SWORN PN6358
EXAMINATION-IN-CHIEF BY MR WOOD PN6358
EXHIBIT #TELSTRA22 STATEMENT OF MR PAUL REWHORN DATED 19/07/2004 PN6378
CROSS-EXAMINATION BY MS BORNSTEIN PN6383
EXHIBIT #CEPU43 RECORD OF OVERTIME WORKED BETWEEN OCTOBER 2003 AND JANUARY 2004 PN6428
EXHIBIT #CEPU44 ROSTER DOCUMENT PN6519
RE-EXAMINATION BY MR WOOD PN6534
WITNESS WITHDREW PN6547
RONALD PAUL ROBERTS, SWORN PN6548
EXAMINATION-IN-CHIEF BY MR WOOD PN6548
EXHIBIT #TELSTRA23 STATEMENT OF MR RONALD ROBERTS DATED MAY 2004 PN6568
CROSS-EXAMINATION BY MS BORNSTEIN PN6590
RE-EXAMINATION BY MR WOOD PN6622
WITNESS WITHDREW PN6631
LEONIE ANNE CROSS, SWORN PN6636
EXAMINATION-IN-CHIEF BY MR WOOD PN6636
EXHIBIT #TELSTRA24 STATEMENT OF MS LEONIE CROSS DATED APRIL 2004 PN6659
CROSS-EXAMINATION BY MS BORNSTEIN PN6692
RE-EXAMINATION BY MR WOOD PN6724
WITNESS WITHDREW PN6733
EXHIBIT #CEPU45 DOCUMENTS IN-CONFIDENCE PN6739
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