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Australian Industrial Relations Commission Transcripts |
AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825
Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:(02) 9238-6500 Fax:(02) 9238-6533
TRANSCRIPT OF PROCEEDINGS
O/N 14393
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER SMITH
C2004/1393
COMMUNICATIONS, ELECTRICAL, ELECTRONIC,
ENERGY, INFORMATION, POSTAL, PLUMBING
AND ALLIED SERVICES UNION OF AUSTRALIA
and
TELSTRA CORPORATION LIMITED
Notification pursuant to section 99 of the Act
of an industrial dispute re rest breaks and
overtime
SYDNEY
9.05 AM, WEDNESDAY, 20 OCTOBER 2004
Continued from 19.10.04
PN3815
PN3816
MR REITANO: Mr Bernays, can I just ask you some questions that deal with some matters in your statement? I'm more concerned with the chronology of events than the detail of the events, so if you can perhaps focus on that for me?---Yes.
PN3817
As I understand it from paragraph 5, you and other ASNs were briefed in mid April about the planned introduction of CC points?---That's correct, yes.
PN3818
Was that the first time that you became aware of that?---To my knowledge, it was the first briefing that we'd had.
PN3819
No, that's not my question. My question was: Was that the first time you became aware of it?---To the best of my knowledge, it is, yes.
PN3820
Do I understand that after that, the next time that you had something to do with it, if I can put it that way, was mid July?---That's correct, yes.
PN3821
So between your first briefing in mid April and mid July, nothing really happened much about CC points?---No, certainly there was no roll out or anything, no.
PN3822
No, there were no discussions with you, there was no literature thrust upon you or anything like that?---No.
PN3823
So the two substantial things of any moment that happened at the beginning, happened on 15 April or mid April and, I think, 22 July?---That's correct, yes.
PN3824
When you say you understand the document that you refer to had been distributed or has been distributed to ASNs and team leaders nationally, firstly did that happen after 22 July? Sorry, I don't want to confuse you. I'm not talking about did your understanding happen after 22 July, I'm asking you was the document distributed after 22 July?---I don't know. All I can talk about is what happened in Sydney. I don't know what happened nationally.
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN3825
Well, can I deal with it in two parts?---Yes.
PN3826
Let's assume that Sydney doesn't exist and we're talking about the rest of Australia, in terms of that your understanding about what happened is gleaned from what someone else has told you, I take it, about what happened nationally?---That's correct, yes.
PN3827
You didn't have any direct role in that or anything like that, someone has told you that and you've then included that in your statement?---That's correct, yes.
PN3828
You keep looking at your statement. I'm happy for you to do so, but there's no tricks in this, I can assure you. I'm not trying to trip you up on anything that's in your statement?---No, that's okay, I'm just trying to fully understand the question.
PN3829
Was that Mr Follett who told you about what happened nationally?---No, it wasn't. As I recall it was Mr Duncan Thomas.
PN3830
Let's go back to Sydney then, in respect of Sydney, was the document you refer to something that was distributed after 22 July?---The document I refer to was the document we were briefed on on 22 July and that was then the document that I briefed all my people on after 22 July.
PN3831
How long after 22 July, days, weeks, months?---Well, it says in my statement I started to talk to my team leaders about this new measure in May and then throughout - I had a number of team briefs from April onwards where we discussed the new measure. I discussed the new measure to my team leaders and then it was formally rolled out to all of our communication technicians in the field in the August team briefs.
PN3832
Yes, stay with Mr Bernays, I really want to try and do this much more quickly than you're letting me. As I understood you, you said that the document came into your possession at the meeting on 22 July or the documents?---That's correct.
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN3833
Therefore they could not have been distributed by you or have been subject to anything prior to 22 July, that is in May, because the first time you saw them and got your hot little hands on them was 22 July and we know that July comes after May?---Sorry, yes, I'm with you, yes.
PN3834
So when did you distribute the document, on 22 July within days of that date or within weeks or months of that date?---Look, I haven't got the exact date. It would have been whenever the - normally I have a team brief with my team leaders the day after the direct reports meeting with Mr Bowman. That 22 July was a direct reports meeting with Mr Bowman. I'd have to go back and I can produce the documentation at a later date, but it would have been the day after.
PN3835
Within days in any event?---Yes, well, I would have briefed my team leaders the day after under normal circumstances.
PN3836
Now, when you say the process commenced in May, this is paragraph 6 if you need to look at it, that couldn't have anything to do with the process that concerns the package of documents that you received on 22 July?---No, that's correct.
PN3837
Now, did you, that is did you, Paul Bernays, in any of that time, that is between 15 April through to about 22 July or within weeks or thereabouts, receive any training in the process of CC points?---No, I didn't.
PN3838
Did you organise any training for any of your direct reports in relation to CC points?---No, I didn't.
PN3839
Did you, for example, and I'm only using it by way of example, did you give any information to your direct reports as to how, when, where and in what manner and you can deal with each of those separately if you need to, but I suspect you'll be able to deal with them compendiously, targets in respect of CC points would be set?---Prior to?
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN3840
Between 15 April and 22 July?---No.
PN3841
And distributing those documents?---No.
PN3842
No, what about after then?---Certainly the documents were distributed, to the best of my recollection, the day after 22 July, the briefing pack. The next step from there was for those guys to go and brief the CTs in August. So at that stage there would have been no targets set.
PN3843
No, but did you organise any explanation to be afforded to, as you call them, CTs, I call them communications technicians, did you organise any training by which they would be able to understand the detail as to how targets would be set?---No.
PN3844
For them either individually or in their team?---No, I did not.
PN3845
At any time?---No.
PN3846
Now, did you at any time set in train any process by which any of the 170 odd, sorry, the number is odd, not the people, communications technicians who ultimately come under your control, that would allow you to establish whether or not they had a satisfactory understanding of the way in which the CC points measure worked?---We had two communication processes. We had the initial briefing which was in the August team briefs and then there was - at that stage there was a one page document from recollection handed out to all the CTs that stepped out how the points were calculated. Everyone got one of those documents and then there was a follow-up briefing and I'm not exactly sure when it was, it's in my statement somewhere, later on in the year, September, October, November or around about that timeframe where we went back and re-communicated, you know, lots of questions people had about the measure and re-communicated some more information out about the measure.
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN3847
Yes, that's you, as it were, as I understand what you're telling me, imparting information to people. I'm asking you about the other end of that. Did you do anything to ensure or to make certain in your own mind, that people who were receiving that information had a proper understanding of what it meant?---Well, when you say did I "do anything to ensure", we have a feedback mechanism through a number of forums where people can feed information back up the line if they have questions. But I certainly, and I was at a number of those briefs where we went out and briefed the communication technicians on the new measure, encouraged anyone who had any questions about the measure at any time to initially talk to their team leader, but if they felt the need to, ring me at any time and talk to me about the measure with any question.
PN3848
You're aware that Mr Costa, you know who Mr Costa is, don't you?---Yes.
PN3849
You're aware that he has raised a number of concerns about CC points, aren't you?---I'm aware of that, yes.
PN3850
Both with his team leader and with others?---I'm aware of that, yes.
PN3851
And I take it you're aware that some fairly serious allegations have been made about Mr Costa's behaviour in these proceedings?---I - clarify that question for me.
PN3852
Well, do you understand the word "allegations"?---Yes.
PN3853
Right. You are aware that some fairly serious allegations have been made against Mr Costa in these proceedings?---No, I'm not aware of that.
PN3854
Right. You are not aware, for example, of the suggestion that Mr Costa took a day off for sick leave and went fishing?---I'm aware in my discussions with Mr Agius that Mr Costa had some sick leave.
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN3855
Yes. That's not my question. Are you aware of an allegation that Mr Costa took some sick leave and went fishing?---I'm not aware of that allegation.
PN3856
Or played golf?---I'm not aware of that allegation.
PN3857
Or in fact took some sick leave at the same time that Mr Satroni and Mr Sparks took sick leave and went to Queensland?---I'm aware of that allegation.
PN3858
Right, and you are aware that that involves a serious allegation of fraud aren't you?---When you say allegation, that allegation hasn't been documented.
PN3859
No?---That's a discussion that I certainly had with Mr Agius.
PN3860
Yes, yes. That's not my question. You are aware that the allegation has been made in these proceedings and my question is you understand that that involves a serious allegation of fraud?---I'm not aware that the allegations have made in these proceedings.
PN3861
Right?---All I'm aware of is that I had a discussion with Mr Agius about those three individuals that you mentioned and them taking sick leave at the same time.
PN3862
Yes, and what was the outcome of that conversation? Did Mr Agius, for example, suggest that they'd taken sick leave and all gone to Queensland together?---No, he didn't. There were some preliminary investigations done on that.
PN3863
Right?---And to my knowledge it hasn't gone any further.
PN3864
Right, and there's been no disciplinary process instituted or anything of the like?---Not to my knowledge, no.
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN3865
Right. Would you ordinarily be aware of such things?---You'd have to ask the team leaders. I had discussions with my team leaders regularly at the time and in fact formally every month and if I was aware of that situation we would discuss it. If they wanted to discuss it with me we would discuss it.
PN3866
So, for example, in this instance, Mr Agius having raised it with you, that is whatever it was that he raised about Costa and Sparks and Satroni, therefore you became aware of it?---Yes.
PN3867
Correct?---Yes.
PN3868
And if the matter was therefore going to be subject to disciplinary action, that would be something that you ordinarily in those circumstances would become aware of?---Yes, absolutely.
PN3869
Right, and that would be the correct channel for dealing with such allegations wouldn't it?---Absolutely.
PN3870
In fact it would be the fair way of dealing with such allegations?---Yes.
PN3871
You wouldn't wheel them out in the middle of a court case rather than subject the employee to disciplinary proceedings, would you?---Well, I'm not party to any of that information so I - - -
PN3872
In any event, you would agree that the fair way of dealing with such allegations would be in accordance with any disciplinary process?---Well, how we usually manage that situation would be we would talk to the individuals in the first instance.
PN3873
Are you aware that Mr Agius, for example, on one occasion - don't worry about when, but on one occasion when discussing issues connected with cc points with Mr Costa said to Mr Costa:
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN3874
This goes all the way to the top.
PN3875
?---I'm only aware of that through the statement made by Mr Costa.
PN3876
Mr Costa or Mr Agius?---Mr Costa.
PN3877
Right. Are you aware that Mr Agius agrees that he said that?---I'd have to go back and look over his statement. I haven't had personal discussions with Mr Agius about that. If he stated that in his statement then I'd have to go back and - - -
PN3878
You've read his statement?---I have.
PN3879
Right, and would you accept from me that at one time, and I'll show it to you if you don't accept it from me, Mr Agius says that he said to Mr Costa in the context of his involvement in the cc points issue:
PN3880
This goes all the way to the top.
PN3881
?---If Mr Agius has said it in his statement, then I accept that, yes.
PN3882
Yes. Do you think that's an appropriate thing to say to employees?---Well, I wasn't party to the conversation so, you know, if it's said - if that's all that was said then it's probably inappropriate but what context was it said in. I wasn't party to both sides of the conversation so I don't understand what context it was said in.
PN3883
Without going into the niceties of it, you as a manager would say, it's inappropriate because people should believe at least that they have the freedom to raise their concerns about matters that affect their employment rather than being troubled by the concept of being labelled by senior management as trouble makers?---That's correct. Yes.
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN3884
And that's why it would be inappropriate for someone to say something like that?---But again it, you know, depends what context it was set in.
PN3885
Sure. Sure, sure, sure but there is a context from what you are telling me in which it would be inappropriate for the reasons I've articulated?---Depending on the conversation that preceded that comment. Yes.
PN3886
Now, can I just return then to the chronology that we were developing. By, I think roughly, October last year and once again don't feel as though you are obliged to say it was you know, the end of September or the beginning of November. Somewhere around about October, cc points had been implemented and there'd been I think two briefings that you have referred to in your statement?---Yes.
PN3887
Right, and then there were changes being brought about to the system. Is that correct?---What changes do you refer to?
PN3888
Well, were there changes or did it not change after October?---What change?
PN3889
Well, you tell me. Did anything change?---Well, I can't recall any specific changes. The measure was being looked at all the time and I guess adjusted and fine tuned and being made more accurate. Any measure you roll out has got inaccuracies with it. So, it was a constant process. There was no, to my knowledge, no specific major change that we had to go and roll out has got inaccuracies with it. So it was a constant process. There was no, to my knowledge, no specific major change that we had to go and roll out.
PN3890
In respect of those constant changes, were those changes that were being made by managers?---Those changes come about in my area mainly as to how the points were calculated and it was done from feedback from the CT so they were feeding back to us constantly issues with travel or how points were allocated to particular tasks and we would go away and review that and have our performance analyst review how that was calculated and make adjustments to their measures when needed.
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN3891
Was there any consultation as you understand it with anyone from the CEPU about those changes?---Look, I'm not party to any of the consultation with the CEPU.
PN3892
So as far as you are aware, there was no consultation with the CEPU?---Well, Mr Thomas and Mr Bowman refer to loss of consultation with the CEPU.
PN3893
I'm not interested in what they are aware of. I'm interested in what you are aware of?---I'm not aware of - no.
PN3894
Right, and you weren't a party to any of the consultation with individual communications technicians either as I understand it because that would have been done by your - I can't remember what they are called, but area managers?---Team leaders.
PN3895
Team leaders, sorry?---No, I had several CTs ring me and I certainly had several discussions with CTs about the measure.
PN3896
Right. Who were they?---Individual names?
PN3897
Yes I do. Yes. Absolutely?---A guy called Stuart Romero rang me one day about being constantly travelled and it was unfair, you know, the way he was - the measure was being calculated and I certainly investigated that and gave him some feedback. Through solutions council meetings I met formally with a representative from each of the 12 teams on a monthly basis and that was an opportunity for them to come in and talk about whatever they wanted to talk about with me. That was going on out on the road every day and certainly around about that time for a number of months we had discussions about the cc measure.
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN3898
Yes. Mr Romero was one of the answers to my question because I said I wanted you to give me the names. Who are the others?---Look, a number of people - there was a guy called Mick McGrath who I spoke to about - specifically about the measure. He made a comment that he didn't care about the daily SMS, you know, at the end of the month his team leader tells him whether he's doing a good job or a bad job. I can't recall the other names but I can recall having several discussions with people.
PN3899
Mr Romero actually is an acting team leader, isn't he?---At the moment?
PN3900
Either at the moment or when he raised the concern with you?---When he raised the concern, he wasn't an acting team leader, he worked in the Pendle Hill team at the time he raised the concern with me.
PN3901
When did he raise it with you?---Late last year.
PN3902
One of the other things that was happening after October but probably around that time was that the targets were being changed. Correct?---At what level?
PN3903
Sir, I'm not concerned about anything to do with levels, I'm concerned about whether the targets were being changed?---The targets weren't being changed at my level.
PN3904
Right?---They may have been changed at a team leader level.
PN3905
Right?---Or individual CTs.
PN3906
Did individual team leaders have the discretion to increase or change the targets for individual communications technicians?---Yes, they did.
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN3907
How was that to be done?---I've set them a target - - -
PN3908
Sorry, you set who a target? You said "them"?---I set the team leaders a target for their teams.
PN3909
Right?---That was set, I can't recall exactly when, fairly early in the process.
PN3910
Right?---And that gave them a guide as to what they as a team needed to achieve. So they then had a discretion to set individual targets to try and work their team towards the target that I had set. So some guys may have already been well over the target, some guys may have been well below. So the targets were individual based on where each individual was at and what his skillset was and a whole range of other factors that come into it.
PN3911
How was an individual team leader to set - let's say, I think we used Mr Brown yesterday so we'll bring him back into the picture - communications technician Mr Brown, how was his target to be set by an individual team leader?---Well, as I said, it was based on the target that I'd set for the team so they would - - -
PN3912
Can you give me an example of what the type would have been that you set?---It was around 3.2 job points.
PN3913
Let's say you've set the target at 3.2, that's for the team, how was Mr Brown's target to be set by his team leader?---The team leader would sit down and look at the data for all of the - well, look at where his team was. If his team was over 3.2 he didn't have a major problem so he would - he would work on individuals in the team, you know, coaching them, looking at skill issues, looking at other roadblocks they had on a day-to-day basis to get some, you know, incremental improvement. If they were under the 3.2 target then they would have to look at all individuals in the team, see where all the individuals were, get some further drill down data from our analyst to determine what the potential issues were and then start to work with the performance analyst and perhaps myself to assign individual targets.
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN3914
Yes?---In most cases that was done between the team leader and the performance analyst.
PN3915
Mr Bernays, I don't want to be disrespectful to you but perhaps, and it may be me, my question was, how, knowing that you had set for the team a target of 3.2, would an individual team leader set the target for Mr Brown?---I just told you that.
PN3916
You better tell me again because I didn't understand it?---It's not a black and white answer.
PN3917
Right?---And it's not a process that, you know, happens in two minutes.
PN3918
Right?---It's something that we're - - -
PN3919
It's discretionary and subjective?---Well, we're managing people.
PN3920
It's discretionary and subjective?---You could argue that way I guess but it's not my view.
PN3921
THE COMMISSIONER: What is your view?---Certainly we have - you know, we have data there in front of us on individuals that we use to determine that measure but, you know, when you're managing people, you know, we're not here managing black and white decisions, we're here managing the grey area and this is where the skill of a people manager comes in so it's about how well do you know your people, you know, how skilled is that person, what training has that person had, what motivates that person, what issues does that person have going at home; all these factors need to be taken in when you're determining, you know, when you're making any decision but especially when you're determining targets.
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN3922
Putting aside other matters why is that not an exercise of discretion?---Well, yes, I guess you could argue that way.
PN3923
I'm not arguing, I am asking why is that not an exercise in discretion?---I agree and that's the discretion that a people manager takes.
PN3924
That's what you expect your managers to be able to judge effectively?---Yes.
PN3925
MR REITANO: What training was afforded to individual team leaders in how to exercise that discretion after the introduction of CC points in July last year?---The training doesn't come from training them on how to set targets, the training comes from a whole range of other leadership and development training and experience and working in with myself and their peers, you know, over time. You don't roll a training course out on how to do things like that.
PN3926
The answer to my question is that they were given no training in how to set the targets?---We didn't have a formal course that, you know, stepped out point by point on how to set a target.
PN3927
We didn't have an informal course either did we?---I would argue we have many informal development opportunities in the company to do that; it's a constant process.
PN3928
You used the phrase a minute ago when I asked you a question "job points"; it's not a phrase that I've heard in this case before. Why did you refer to them as job points?---Job points are a component of the CC. It's the actual work time taken to do a job. CC also encompasses travel points. CC encompasses travel and job points so the actual time taken to do the job plus the travel, job points just relating purely to the work time on each task.
PN3929
Do job points also relate to the payments that are made to some employees?---Are you talking the AWA contracts?
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN3930
I'm just asking a question?---I'm not - I haven't had too much discussion on that - the AWA people's contract if that's what you're referring to.
PN3931
People on AWAs do they get job points?---They have a point allocation system. I'm unsure whether it's job points or CC. It may well be job points.
PN3932
Job points is a measure of actual work as I understand it. If we do it this way, work minus travel equals job points?---Yes.
PN3933
Is the reason that job points take out of it the concept of travel because it's understood that it would be unfair to include the concept of travel?---No. The job point target was set at the team leader level. At the CT the CC target was set.
PN3934
Yes, but why do we for the purpose of job points subtract the travel?---So that we can - a true measure of productivity is how much work you're doing not how much travel you're doing.
PN3935
Thank you. CC points was intended to be a measure of productivity not how much travel you're doing; correct?---That's correct.
PN3936
When you come to judge, as you told me yesterday, an employee for the purpose of whether they should be shown the door upon redundancy in the selection process, you don't look at job points (the measure of productivity), you look at CC points (the measure of productivity plus travelling time); correct?---In the context of the Telstra selection process?
PN3937
Yes?---No, that would be incorrect.
PN3938
You told me yesterday, sir, on your oath that CC points were one of the five matters that were used for the purpose of selecting people for redundancy?---No, I told you yesterday that there are five categories in the Telstra selection process.
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN3939
Yes?---There's health and safety, customer service, effectiveness, quality and skills and knowledge.
PN3940
Yes?---In the effectiveness category the CC measure is a component that can be considered in that assessment of an individual.
PN3941
So travelling time is relevantly a component; correct?---Travel is a component of the CC measure, that's right.
PN3942
Even though it has nothing to do with productivity?---It has absolutely everything to do with productivity because it reduces our ability to be productive if we're travelling more.
PN3943
Sir, you can't have it both ways unfortunately. A few moments ago you told me that the reason you take travelling time out of the job points equation was so that it would be a true measure of productivity. You can't now put it back in and say that it's got something to do with it. It's one or the other?---This - and this - and this is a lack of understanding on the whole measure - that's the difference between setting a job point target for team leader and having a CC target for CTs. CTs can't do any thing about travel. They're just told where their next job is and their job is to go and do that next task. A team leader though can impact on travel. He needs to work in with our work management centre and other parts of the business that is making those decisions to try and reduce travel. So part of the team leader's goal is to reduce travel to make his people more productive. The CT though just needs to go and do whatever the next task is that he needs to go and do and that's why he can't be beat up, for want of a better word, over travel. That's part of his day.
PN3944
Sir, the team leader has nothing to do with the question of travel because the jobs are allocated from the IDS?---That's correct, yes.
PN3945
So it's nonsense to suggest that the team leader had got anything to do with organising a person's travel?---They can influence the amount of travel we do and they can influence it in a myriad of ways.
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN3946
Sir, if CC points was a fair measure of productivity it would exclude any component to do with travel wouldn't it?---Fair measure to who?
PN3947
For the communications technicians who are judged by it?---No, I believe that travel should be included as part of their - a measure for those guides because they have to travel. They don't have any input into whether they travel; they're just given their next task and they go away and do it. The reason travel was included was at the request of the CTs because it wasn't included on the previous measure so some guys were travelling five minutes between jobs, other guys are travelling an hour and you know with the old measure you are unfairly comparing people who were travelling, you know, different distances.
PN3948
And on the current measure it continues to arbitrarily measure travel, doesn't it because it doesn't take into account for example the time taken to drive through the central business district of Sydney during peak hour as against driving through Hunters Hill during lunch time on a week day?---No, that's correct. It measures the X Y co-ordinates between travel and multiplies it by speed and we give an average speed across Sydney on how fast you can travel but it's only an average. Every measure we have is only an average.
PN3949
If it is fair and appropriate to include travel in the calculation to judge employees effectiveness and productivity why isn't it included in the calculation for payments under the AWAs?---Look, I've got a note - as I've said I'm not - - -
PN3950
The reason is I suggest to you is because it is unfair to use travelling time in a formula that is designed to measure a person's productivity?---No, I disagree and I think, you know, if you then survey the 1200 CTs in Sydney I can suggest most of - - -
PN3951
Have you done that?---No, I haven't.
PN3952
Have you surveyed them about anything to do about CC points? Surveyed is the word?---No, not CCs.
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN3953
You don't know at all what the attitude of - how many did you say? 1200 CTs - communications technicians in Sydney, do you to CC points?---Sorry?
PN3954
You don't know at all what the attitude of the 1200 communications technicians working in Sydney is - - - ?---No, I can't speak for the 1200 I can only speak for the ones I've spoken to.
PN3955
Now, there are two matters which you deal with in your statement, I can only find one at the moment - yes, you do, in 21 and 23 you deal with them respectively. Can I just deal with those quickly. You know the communications technicians as a general rule day in and day out work by themselves?---That's correct, yes.
PN3956
So there would be no way of you knowing whether an individual communications technician, one of the 1200 you've identified was working through their lunch hour, correct?---Me personally?
PN3957
Yes?---No. No way at all. no.
PN3958
And there's no way unless your team leader happened to turn up while someone said they were at lunch, there's no way the team leader would know either, correct?---Whether he was at lunch?
PN3959
Yes. I tell the dispatch centre I'm going to lunch and I continue working, unless the team leader turned up at that time there's way as a general rule he would know?---There's a lunch window and there's a couple of hours and the CT have the discretion to take their lunch break within that window whenever they can.
PN3960
If they're concerned about, for example that they're going to be incomplete on a job and therefore ditch any points that they might get, and therefore work through their lunch hour to complete the job or worked at the end of the day to complete the job, there would be no way of you or a team leader knowing whether they'd done that, correct?---If they're working through their lunch break they need to let their team leader know so the team leader certainly should know.
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN3961
Let's just assume for a moment that they're concerned about their CC points and they're concerned about the fact that they're going to lose a whole lot of points because they're going to be incomplete and they don't want to tell their team leader about that because they want their points to be as high as they are, as they possibly can be. In those circumstances there would be no way of knowing whether a person worked through their lunch break?---There would be no way that I'd know, no.
PN3962
There would be no way that a team leader would know either?---In the context that you put it that would be correct.
PN3963
In any context there would be no way of a team leader knowing other than the one exception I've created, that is if he turned up in the field when the person said that they were at lunch?---If someone takes it on their own discretion to work through their lunch break and not tell their team leader you know that's in breach of what they should be doing, so someone might take that discretion and if that happened the team leader would not know.
PN3964
How many hours - do you know roughly, I don't want you to - the reason I'm asking this is I don't know - Mr Murphy will tell me in a moment, but how many hours are used to calculate ordinary time under the award for communications technicians? Is it 38? 36 and three-quarters I'm - - - ?---An eight hour - - -
PN3965
Would you accept that for present purposes that under the award that you're paid for 36 and three-quarter ordinary hours?---Yes, I'd accept that.
PN3966
So, effectively an employee could work - how long is lunch time, half an hour?---Half an hour.
PN3967
Effectively an employee could add, if they worked through every lunch hour, two and a half hours to their working week without you knowing?---Yes, they could do that.
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN3968
In that way maximising - maximising is probably not a good word - increasing their CC points to make them look much more productive than they really are?---That could happen, yes.
PN3969
And you wouldn't know?---I wouldn't know, no.
PN3970
Do you say then that when it comes to ascertaining that person's effectiveness for the purpose of the selection for redundancy it would be fair to judge that person against a person who didn't work through their lunch hours?---Well let's presume that happens. I don't know why anyone would work 2 1/2 hours extra a week without getting paid for it and I don't know of anyone who has ever done that.
PN3971
You're talking to one but we won't worry about that for the moment?---You're not on the award. That is the same with overtime. People are working regular overtime, you know, obviously they're going to do more jobs per day and that's why, you know, the CC measure is only one small component of five categories effectiveness that we would look at when we are determining selection.
PN3972
But Mr Bernays you've been around for I think - I don't want you to take this the wrong way - but for a long time in Telstra, correct?---I have, yes.
PN3973
I think it was roughly 1994 when the first huge wave of redundancies came under that awful thing that was called resource rebalancing?---It would be the early 90s to my knowledge.
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN3974
Roughly how many employees did Telstra have in the early 90s?---90,000.
PN3975
How many does it have today?---Something around 40, maybe under 40,000,
PN3976
'
PN3977
I think you'd find it's under 40,000, but using those proportions over the last decade or thereabouts there have been about I think three major waves of redundancies in Telstra, correct? Three big ones?---Well, in our part of the business there have probably been more.
PN3978
Well, all right, there has been at least three, right; and there have probably been a number of, I won't call them ripples, but probably smaller exercises over that time?---Yes, it's fair to say.
PN3979
One of the concerns of employees in Telstra in that environment, you'd agree with me, would be who is next?---Most of those waves, or most of those redundancies were volunteers. It's only in the last - certainly we've had two smaller groups that have fallen through in the last couple of years now part of the business where we engaged the Telstra selection process but prior to that pretty well in our part of the business all redundancies were based on the volunteer process.
PN3980
No, no, once again and it's probably more my fault on this occasion than yours. Whether it's voluntary or not one of the concerns that employees would have is who is next?---Not in a voluntary situation, we are in voluntary mode everyone is putting their hand up saying I want to be next.
PN3981
Sorry, let me do it this way then. Today where people can be made involuntarily redundant against the background of 90,000 to less than 40,000 employees, employees would be legitimately concerned about whether they might be the target for redundancy?---I don't know, you'd have to ask the employees that. Certainly employees that I speak to have no issue about that, they know that if they come to work doing a fair day's work they're going to be employed for long
**** PAUL FRANCIS BERNAYS XXN MR REITANO
as you know the bulk of the people in this part of the business stay here. We outsource the whole group it's a different story. Perhaps employees that are under-performing are worried about whether they're next and this is part of the reason - - -
PN3982
THE COMMISSIONER: It wouldn't make them redundant to terminate wouldn't you?---Well, we have a process to work through.
PN3983
Indeed, people who don't perform properly would be terminated rather being made redundant?---But when you're at a stage where you are doing a selection process for redundancy that - - -
PN3984
The poor performance becomes relevant?---Yes, it comes into play.
PN3985
MR REITANO: Do you agree, and you had some difficulty yesterday and I for reasons I didn't understand then couldn't understand what your difficulty was left here and became even more concerned about what your difficulty was. Do you agree with the proposition that CC points will not be used as a determinative basis for performance management issues?---No, I don't agree with that. It's a component of performance management.
PN3986
Who prepared your statement which you say in the witness box is - don't open it - which you say in the witness box is true; who prepared it?---I prepared it in conjunction with our legal team.
PN3987
Are they your words or his words?---Which words are you referring to?
PN3988
Are they your words in the statement or are they his words?---They're my words in the statement.
PN3989
Right. Can you turn to paragraph 26 and read the second sentence.
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN3990
THE COMMISSIONER: The first statement?
PN3991
MR REITANO: The first statement.
PN3992
THE WITNESS: The second sentence?
PN3993
MR REITANO: Yes?---That's correct, that's a correct statement.
PN3994
A moment ago when I asked you would you agree with the proposition, and I can tell you that I read those words, I said would you agree with the proposition that they will not be used as a determinative basis for any management issues, you said you wouldn't agree with that?---See, - - -
PN3995
Do you agree that that's what you told me?---I think - - -
PN3996
Mr Bernays, please, do you agree that's what you told me?---I agree with what you told me but - - -
PN3997
Do you see that what you told me and what's in your statement are inconsistent?---No, I still don't think they are and I think you and I have a fundamental difference on what CC is all about.
PN3998
Forget about what our fundamental differences are and let's talk about the fundamental difference between what you said in answer to my question and what you say in your statement. Are you able to explain why you did not agree with the proposition that is contained in your statement?---What I say in my statement is correct. We would not discipline someone because they had a CC of 3.2 or 2.8 or 1.5 or whatever. We would not do that.
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN3999
Right. Therefore you would have no difficulty with this Commission making an order that prevented you from doing that?---In a direct sense, no, I wouldn't have.
PN4000
In a direct sense or in an indirect sense?---My view, the indirect sense where I'm coming from is that when I look at CC as a productivity measure it's the first indicator, it's a graph that goes like this, like this or like this. Underlying the CC measure is job points, travel points, skill, motivation of a CT, behavioural issues, a whole range of other factors. That's the starting point for any leader or any manager to look at productivity. You cannot go to a CT and say, You need to fix your job, you're CC, you're at 3.6, you need to get to 3.8. That's not telling them how they're going to fix it. You need to go to them and say, We need to look at this process, or we've got this skill issue, I need to get you more training here, or you need to come to work on time, or you need to not have an hour lunch break. That's what we're dealing with on a day to day basis.
PN4001
My question was that you would not have any difficulty with this Commission making an order that said that you shall not dismiss an employee based on CC points?---Look, I don't have an issue with that.
PN4002
And you said, Not directly, and I said, And not indirectly?---Yeah.
PN4003
What's the answer?---I don't have an issue when you say we should not use CC points to dismiss someone, use the CC as the reason to dismiss someone. I don't have an issue with that.
PN4004
Do you say that no communications technician in your area will ever be dismissed for unsatisfactory performance due to poor CC points?---As I said, we've got a fundamental difference in the way we view the measure but if you take it in the literal - - -
PN4005
Yes, you think it's good and I think it's bad, but other than that can you answer my question?---If you take it in the literal sense we would not dismiss anyone, as I said before, because their CC points were at a given level, whatever that may be.
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN4006
Can I just ask you to turn to paragraph 33 of your statement while you've got it there. There's a reference there to a meeting or to meetings. You weren't at any of those, I take it? Just read it to yourself and then I think you can deal with the question. I think you will tell me you weren't?---I can't recall whether I was at any of those meetings or not. I used to attend the team leaders meetings with their Cts quarterly. I wouldn't get to every one quarterly but I'd get to a sample quarterly and I could've been at some, I may not have been at others. I can't recall.
PN4007
In those circumstances it would be silly of me to try and ask you questions about what happened at meetings that you can't even recall whether you were there or not?---That's correct.
PN4008
Can I just ask, have you got your second statement with you?---I have.
PN4009
I just need to ask you a couple of questions about that and then hopefully I'll let you go. Well, I'll let you go but others might not. Can you just go to paragraph 7 first and just read it to yourself to remind yourself what it's about?---Yes.
PN4010
Did you only ever speak to Mr Agius once where you counselled him about not speaking to Mr Costa in terms of what you say in the last sentence?---As I recall, yes.
PN4011
Do you remember when that was?---It was the night after - no, it wasn't. When we had the first hearing here and I can't remember if it was in April some time when we were in the Commission on this matter.
PN4012
Will your diary assist you?---I don't have my diary with me but it was around - the day after or that night I think I had a phone call from Mr Thomas and Mr Bowman who said they had had a complaint from the CEPU about Mr Agius discussing with Mr Costa his statement before the Commission. I rang Mr Agius that night and asked him to put down in writing his version of that discussion and I also asked him to not talk to Mr Costa any further about his statement before the Commission.
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN4013
Was Mr Wood here on that occasion?---Mr?
PN4014
This bloke?---The first time, he would've been, yeah. I wasn't in the room. I was out in the - - -
PN4015
But you were somewhere here and you saw Mr Wood and Mr Follett?---He would've been here, yeah.
PN4016
Would it have been 6 May?---Look, I can't recall the exact date but it was within a day or two of when we were here in the Commission.
PN4017
Can I do it this way. You know now, because I think you said you read Mr Agius' statement, that what I call the incident, to try to put it neutrally, at Hammondville happened on 29 April?---Yes, I know that.
PN4018
It wasn't that day?---Look, I'd have to go back and read his statement again but it may well have been that day. That may have been the day they had the discussions about - - -
PN4019
No, no, that's when they had the discussion, that is Agius and Costa, but that wasn't the day you had your conversation with Agius?---It may well have been.
PN4020
What, you think that was the day you were in the Commission?---No, no, I'm saying we had the discussion within a day or two of being in the Commission. It was the day - whenever the CEPU rang Mr Bowman and Mr Thomas about the matter, I rang Mr Agius that night.
PN4021
Was I in the Commission that day?---I've got no idea.
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN4022
You can't remember?---No.
PN4023
But it was definitely a day that was within a day or two of you being in the Commission?---As I recall, yes.
PN4024
Can I ask you, the investigation that you talk about, what did Mr Bowman tell you about that?---Mr Bowman didn't tell me too much about that at all, only that Mr Thomas and Mr Bowman rang me and asked me to speak with Mr Agius to get him to put in writing his side of that conversation, and also to talk to him about not discussing the matter any further with Mr Costa.
PN4025
Right?---And also to talk to him about not discussing the matter any further with Mr Costa, and that written statement came back to Mr Bowman and Mr Thomas and not long after that I left that business group and they were managing the matter.
PN4026
But you had nothing more to do with it after that?---No.
PN4027
Because you left the business group?---That's correct.
PN4028
So you don't know what happened in any investigation, if, indeed, there was one?---No, I'm aware that the process has started. There's some documentation that's in my attachments here that talk about Mr Costa being invited to come in and give his side of the version and I think yourself or some other part of your legal team saying that, you know, he wouldn't do that at this stage, so I'm aware that the process has started. I'm not aware of too many other details, no.
PN4029
It would have been singularly untrue, as you understand it, to say that there had been any outcome of, sorry, that there had been consequences flowing from that investigation in circumstances where, sorry, I withdraw that. You are not aware that any investigation has been concluded?---No.
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN4030
Indeed, in order for any such investigation to be concluded, as you understand the process, Mr Costa would have to have been spoken to?---That's correct.
PN4031
And if Mr Costa had not been spoken to about the issue, there could be no conclusion to the investigation, correct?---That's my understanding, yes.
PN4032
And there could be no consequences of the investigation until that had been done, correct?---That's correct.
PN4033
Are you aware of whether Mr Agius has been spoken to?---I'm aware that Mr Agius has been spoken to, yes.
PN4034
In terms of an investigation as distinct in terms of you counselling him not to speak to Mr Costa?---I believe that to be the case.
PN4035
I think you answered this, just remind me, you don't know when the investigation started, if, indeed, there was one?---Well, in my view, the commencement of that was when I asked Mr Agius to give his version of the conversation he had with Mr Costa. So he put that in writing. That's the preliminary stage of investigating any matter and I asked Mr Agius to not discuss with Mr Costa any further details of the matter before the Commission. So that's when the preliminary investigation started.
PN4036
I wonder whether I could trouble the Commission for an indulgence? I don't have the transcript from 6 May.
PN4037
THE COMMISSIONER: I do.
PN4038
MR REITANO: I was wondering if I could have access to it?
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN4039
THE COMMISSIONER: Of course. Well, I shouldn't have spoken too quickly. I did speak too quickly, I haven't got it. I'm just interested in whether Mr Wood has 6 May.
PN4040
MR WOOD: Yes, I was just offering it to my friend.
PN4041
THE COMMISSIONER: Have you got it?
PN4042
MR WOOD: Yes, I have.
PN4043
MR REITANO: I don't need it because I've cleared it up with Mr Follett.
PN4044
THE COMMISSIONER: No, I'm interested for my own purposes now. I want to know why Mr Wood has got it and I haven't.
PN4045
MR REITANO: Well, I could suggest something, but you'd just get paranoid.
PN4046
THE COMMISSIONER: This is the Commonwealth, Mr Reitano.
PN4047
MR REITANO: If I told you, and I don't think it's going to be of any assistance to you, but the day you were in the Commission was 3 May which was a Monday, would that assist you in remembering when you had the - - -?---Is that the first time we were here?
PN4048
The first time you were here?---Was it?
PN4049
I think?---Was it the first time the matter was - no, the matter has been here several times, yes.
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN4050
Let me tell you, and perhaps it will assist you, on 3 May what happened, Mr Wood turned up and Mr Absolom, you know who he is?---Yes.
PN4051
He's not here at the moment, but you know he is, he turned up and he said, I don't remember the detail of what he said, but essentially he thought it was a bit unfair that he had to run a case against a lawyer and he sought an adjournment of the proceedings and the proceedings were adjourned for a couple of days until the Wednesday. What I'm suggesting to you is that it was the Monday when you were here?---Okay.
PN4052
Does that help you?---No, but I'm just looking at one of the statements.
PN4053
Which statement?---Sorry, from Mr Costa, and the incident I think we're talking about is on 29 April.
PN4054
Correct?---When Mr Costa and Mr Agius had a discussion about his statement before the Commission.
PN4055
Yes?---When I then spoke to Mr Agius about that, I'm unsure. It could well have been 3 May. All I know is that I got a phone call from Mr Thomas and Mr Bowman who'd received a phone call from the CEPU saying they were unhappy that Mr Agius was speaking to Mr Costa about the matter and I rang Mr Agius that night. Now, it's probably within a week of the 29th, I would think.
PN4056
Perhaps you would remember this if it were the case because of the conversation that you had with Mr Agius, was it the same day that he had spoken to - - -?---Look, it could well have been. We're talking - this is 18 months ago, I'm talking about here.
PN4057
No, we're not, we're talking about six months ago, but in any event?---Sorry, six months ago, but I can remember the conversation clearly. I can't remember the date.
**** PAUL FRANCIS BERNAYS XXN MR REITANO
PN4058
Right, but you remember it was after or within a couple of days of you coming to the Commission with Mr Wood being here and you can't remember anything else?---Yes.
PN4059
And you don't remember anything that I told you about whether the proceedings were then adjourned and so on and so forth?---I don't remember that detail, no.
PN4060
You don't remember me, but you do remember Mr Absolom?---I remember seeing Mr Absolom in the building somewhere. The first time I laid eyes on you was yesterday.
PN4061
Thank you very much, sir.
PN4062
THE COMMISSIONER: Could I just ask one question before you resume your seat, Mr Reitano? You were talking about job points earlier on which were different, as I understand it, from CC points. Are any job points allocated to work which is incomplete?---No.
PN4063
Thank you. Anything arise from that?
PN4064
MR REITANO: No, thank you.
PN4065
PN4066
MR WOOD: I wonder if the witness could be shown exhibit 7 to CEPU8 which is the statement of Mr Bowman? I'll hand him a - I'm sorry, Telstra, yes?---I've got Mr Bowman's statement.
**** PAUL FRANCIS BERNAYS RXN MR WOOD
PN4067
THE COMMISSIONER: We're going to adjourn for ten minutes while somebody comes down and sees whether I'm still alive. I think I've pressed an emergency button. We'll adjourn briefly.
SHORT ADJOURNMENT [10.05am]
RESUMED [10.19am]
PN4068
THE COMMISSIONER: Yes, Mr Wood?
PN4069
MR WOOD: Thank you, Commissioner.
PN4070
I was about to pass to you, Mr Bernays, exhibit 7 to Mr Bowman's supplementary statement which is Telstra 8 which I will just hand to you now. Mr Bowman in his statement says this is an email that was communicated or cascaded through Sydney Region. You were asked some questions about the communications that you were involved in involving the interaction of the CC measure of redundancy process. Just have a look at that document for a moment? Just tell me when you're finished reading it, Mr Bernays?---Yep.
PN4071
Do you remember receiving that information whether in that form or in another form in May of this year?---I remember seeing it, I don't recall exactly when. My recollection is it's some time earlier this year, yes.
PN4072
Do you recall what you did with the information once you saw it?---Yes, we - everyone - as it says up the top there everyone was converted to weekly SMSs. I asked my team - I was still in that area service manager role at Central at the time - and asked my team leaders to canvas any of their guys if they wished to still receive the message daily to let me know and we would make that happen.
**** PAUL FRANCIS BERNAYS RXN MR WOOD
PN4073
Did you receive any feedback from your team leaders within the Central Region?---I did.
PN4074
What was the feedback?---As I recall one whole team stayed on daily messages; I think it was the Wetherill Park team. We had some individuals in the Castle Hill team who requested to stay on daily massaging and my understanding there is some people in the East ASG who'd requested to be put on daily messaging as well.
PN4075
Do you remember what you did about the second part of that document that I've handed to you, if anything?---The second last paragraph.
PN4076
Yes, the large paragraph?---All I did was communicate that to my team leaders.
PN4077
What instructions did you give, if any, in terms of your communication to your team leaders?---No instructions I don't think specifically, it's pretty straightforward, and at that stage there was the likelihood of further redundancy; certainly this financial year it was not going to happen but it was just to let everyone know that, as it says, that CC points will be considered in the same manner as other systems used by Telstra to assess individuals.
PN4078
You were asked some questions about allegations of which you were aware having been made against Mr Costa and one of the allegations which you said you were aware of was that Mr Costa had gone to Queensland on a sick day with Mr Sparks and Mr Satroni; do you recall that?---Yes, I recall that.
PN4079
Do you recall whether you received this information or allegation, however you describe it, from Mr Agius or other team leaders or anyone else?---Two of those CTs are in one team and one is in Mr Costa's and Mr Agius' team and the other two are in the other team. Now, I recall having discussions with both Mr Agius and Mr Pilarowski who is the other team leader. I can't recall who first brought the information to me whether it was Mr Agius or Mr Pilarowski but I certainly
**** PAUL FRANCIS BERNAYS RXN MR WOOD
had discussions with both of them about the fact that they were concerned that the three of them were off on sick leave at the same time and one of them thought that they could have been in Queensland. I didn't see at that stage that they were allegations, it was just some information they had, you know, they wanted to do some further preliminary investigation and that would determine whether there would be a formal investigation.
PN4080
You were asked some questions about whether or not you'd surveyed the - I think you said 1200 - I think Mr Bowman's evidence is there are 1000 communication technicians within the Greater Sydney Region but whether it's 1000 or 1200 you were asked questions about whether or not you surveyed their attitude to the CC measure and you said you hadn't and then you were asked a question about whether or not you knew the attitude of those 1200 CTs and you said you didn't, you said only the ones you'd spoken to. What's the attitude of the CTs to whom you've spoken about the CC measure?---Well, certainly - and I will put it into context on how I had spoken to them - I certainly visited all the team briefs a number of times throughout the year so I would get to see the 170-odd people in my group face-to-face on a number of occasions and I have a sample from each team come to talk to me monthly in the Solutions Council forum that we had. So I got face-to-face contact with the whole 170 on, you know, a couple of occasions a year at least and certainly when we first rolled it out there was a lot of questions at the team briefs and for me that was an indication that the measure was easily understood, people were starting to dissect it and ask questions around it. Towards the end of my role as the area service manager up until the end of May the amount of questions and in fact I think the last Solutions Council I had which was probably in early May I can't recall any questions around CC at all but, you know, the attitude varied I guess. My view is people wanted to understand it, they wanted to know how it worked, they wanted more information. Some people it didn't bother them, they'd just come to work and do a fair day's work and their team leader tells them, you know, how they're going. Some people, you know, weren't interested in their daily message, some were. So it varied right across the whole group.
PN4081
There is nothing further in re-examination, Commissioner.
PN4082
PN4083
MR WOOD: That's our case, Commissioner.
PN4084
THE COMMISSIONER: Thank you. Have we decided what we do next? Are we going to hear from you are we, Mr Reitano?
PN4085
MR REITANO: I think, unfortunately, yes.
PN4086
THE COMMISSIONER: Can I ask a question first so that I know whether I'm concentrating on the right issues.
PN4087
MR REITANO: That fits in nicely because the first thing I was going to deal with was what are the issues.
PN4088
THE COMMISSIONER: Thank you. It seems to me that certain matters aren't in issue and in fact they're broadly agreed and that is that there can be a system of performance management for communications technicians, that Telstra has a right to manage work performance in the most efficient manner and that CC points will not be used directly to dismiss or for the selection of redundancy.
PN4089
MR REITANO: I'm not sure about the third one. That is said by some witnesses and it's not agreed to by others.
PN4090
THE COMMISSIONER: Yes, this is what I am now going to test. What is not agreed is the composition of the CC points, how they're made up because there are some issues about consultation and discussion about those and whether or not CC points can be used indirectly for dismissal and/or the selection of redundancy and, thirdly, what is not agreed is whether or not feedback on CC points should be more frequently than the one-to-one meetings and whether that should be at the discretion of the employee.
PN4091
That just seemed to me to be the areas where there is either not agreement or agreement and I would be interested from both sides to hear whether or not what I've just outlined is an accurate reflection.
PN4092
MR REITANO: In the broad, I don't cavil I don't think with anything that you've said about those being agreed issues and not agreed issues. They then probably branch out into sub issues and there's probably over above them one general issue in terms of the requirements of the Act in relation to making exceptional matters orders as to whether there would be harsh or unjust outcomes.
PN4093
THE COMMISSIONER: Yes.
PN4094
MR REITANO: In the broad, I don't think there's any substantial disagreement with that articulation from our point of view.
PN4095
THE COMMISSIONER: Mr Wood? Do you want some time to consult with your client about that?
PN4096
MR WOOD: Apparently I do, Commissioner.
PN4097
THE COMMISSIONER: I think that would be helpful because that just may narrow some of the issues that we need to discuss. I'm still a little puzzled as to why we can't resolve it without having it arbitrated.
PN4098
MR REITANO: I wonder whether it would be useful because I don't intend to be particularly long in terms of the submission I make, whether I should proceed to deal with them and then Mr Wood can take your question on notice.
PN4099
THE COMMISSIONER: Sure.
PN4100
MR REITANO: The reason why I say that, there's a couple of I think matters that don't directly jump out of me from what you've said, Commissioner, that I might raise that Mr Wood might want to consider in the context of what you've said. As I say, I think I will be finished with 45 minutes in terms of what I want to say. If that's convenient.
PN4101
THE COMMISSIONER: That's fine. I'm content, then Mr Wood's clients can contemplate what I've just put and if there are phone calls that need to be made they can and I'll hear you. Thanks, Mr Reitano.
PN4102
MR REITANO: Can I deal firstly with the issue that there's two related issues that you raised that are at the forefront of our submissions. They relate to consultation and dissemination of information. The first matter that I want to raise in that context is to alert you to clause 24 of the relevant certified agreement which is CEPU12, and in particular clause 24 contains a provision in 24.4 that where Telstra proposes to introduce significant business initiatives or major changes which have a demonstrable impact on employees, including Telstra policy which affects employment conditions, managers will consult with the employees who may be affected by the proposed changes and their union as early as is practicable.
PN4103
One of the overwhelming themes, and I won't take you to Mr Murphy's statement now but I do have some references to it generally, one of the overwhelming themes that arises from the evidence is there was never any consultation when this was introduced. Mr Follett's amused -I'm not sure what by - but there was never any consultation with the CEPU.
PN4104
What occurred, and you will see it evident from Mr Murphy's statement, is that someone sat down from Telstra and told some people from the CEPU, This is what we propose to do. And a couple of weeks later, I think, from recollection, then told them, This is what we've done.
PN4105
In our respectful submission one need not, in many respects, go much further than that in terms of unjust outcomes. It is unjust for Telstra to act contrary to, let's forget about the letter of the law, let's talk about the spirit of it in clause 24. You can adopt it either way, but whereby it's solemn promise in the certified agreement it is said that it will consult before it does these things, it is unjust for it to depart from that position.
PN4106
The second thing that I wanted to raise in that context is this, that the certified agreement also contains a provision that does not allow Telstra to act unilaterally in respect of terms and conditions of employment or matters that affect employment, because it contains relevantly in clause 22 a no extra claims clause. It goes both ways. Not an extra claims clause that only imposes conditions on the union, it also imposes conditions on Telstra.
PN4107
In our written submission that we filed at the outset of the proceedings one of the things we said was that one of the issues, if you like, is the unilateral introduction of this, had Telstra done it consensually with the consent and with appropriate consultation, that might be one thing and it would be difficult for us to come here and complain about non compliance with the no extra claims clause. Here, it acts unilaterally and without consultation and contrary once again to the spirit and word of the clause. Those are two things that we put at the forefront of our submissions.
PN4108
Our case is simplicity itself as the outline of submissions demonstrates. Yeah, there are issues about Mr Costa and Mr Agius in many respects something of a sideshow. It does explain one thing, one very important thing. Mr Costa in the witness box was living proof as to why people are unfortunately afraid to put their hands up and complain about these things, because it goes all the way to the top, to use Mr Agius' words, and that's why they need the protection of their industrial organisation.
PN4109
When you're presented with the submission from the other side that there are 1200 communications technicians and only four gave evidence - sorry, in New South Wales - and only four gave evidence, resounding in your mind should be Mr Costa and what happens to people who dare to put their hands up in respect of these matters.
PN4110
THE COMMISSIONER: Well, nothing's happened to him, has it?
PN4111
MR REITANO: He has had the most serious allegations put to him in the witness box and an enormous amount of mud thrown at him. He's been on sick leave for other reasons - sorry, I say sick leave, he's been on workers compensation leave for other reasons - but he has been subject to very serious allegations; allegations of fraud.
PN4112
THE COMMISSIONER: And none of them substantiated on the evidence before me.
PN4113
MR REITANO: Not one of them, but he has had to sit in the witness box and suffer that. He's had his manager come around to him and remind him, This goes all the way to the top. Now, what does that mean? Because you've complained you are now labelled a trouble maker. It can't mean anything else, with respect. I mean, Mr Bernays was very frank about what it mean but Mr Agius was very cute, that it was just meaningless words which really didn't have any effect at all.
PN4114
Mr Costa is entitled to be an agitator. He's entitled to complain about these things and he's entitled to do so without fear of retribution from his employer or anyone else, whether it be through Mr Agius or anyone else, and he's entitled to come along to this Commission and give evidence, and he's entitled to do so without people baselessly alleging that he has committed serious fraudulent acts in respect of his claims for sick leave.
PN4115
Had it not been put to Mr Costa, for example, that he had been fishing or that he had been to Queensland or that he was playing golf, and had it been put to him fairly and squarely that he was caught red-handed and proved beyond doubt, that's one thing, but the fact that it was put to him where there was absolutely no evidence to substantiate it and where the Commission could not make any findings adverse to him, also speaks of something, and that is if you complain we will muddy your name by making allegations against you.
PN4116
The next matter I wanted to deal with was in respect of the information or training and the like that was provided to employees. Can I give you some references firstly to Mr Murphy's statement about the information that was provided to the union. His statement is CEPU3 and the six references are paragraphs 11 annexure SM3, SM9, SM6, SM12 and SM14.
PN4117
Mr Costa in his evidence deals with the information he was provided with in CEPU8 paragraphs 4 and 5. Mr Searle - I have some references to the transcript for Mr Searle as well - deals with it in CEPU6 at paragraphs 6, 7 and 8, and also in cross-examination which is very enlightening at paragraph numbers 789 to 795 and 809 to 814. The sum total of Mr Searle's evidence was, look, we were told all these things, I had no idea what it was about. That's the sum total of what he says. It's put to him that, You saw something on the notice board, and he said, Well, I might've seen it but I didn't understand it. Yeah, we had these briefings but I don't know what these things mean.
PN4118
Mr Wilde you might recall gave evidence about - CEPU4 paragraph 8 and in the transcript 541 to 569 and 687 to 688 - Mr Wilde you might recall gave evidence about the way in which the briefing session with him was conducted by someone whom he considered to be totally ill equipped as a supervisor to conduct such a session, and I think he told you about - he gave it some name about death by overheads, I think, or something like that, and was quite clear that he had no idea of what this was all about.
PN4119
You will recall only this morning Mr Bernays told you that team leaders, for example, were not trained in how to use this CC point system, and I think Mr Bowman also gave evidence consistent with that, and I'll find the reference in due course. So that deals with the third issue that we identified, that is the lack of information.
PN4120
The fourth thing that is clear from the evidence that we say is important in addition to what we've said in the written submissions is the fact that you will see an enormous confusion in the evidence from Telstra about what the measure is intended to do. You will see some witness such as Mr Bernays willingly conceding that it won't be used directly to select people for redundancy.
PN4121
Yesterday he was quite frank about that. He didn't run away from it, it won't be used for that purpose. Mr Bowman was much more resistant to the suggestion as to that and his evidence in that respect is found at about paragraphs numbers 1950-1997 roughly where he deals with that.
PN4122
Other witnesses weren't prepared to be as frank, if you like, as Mr Bernays was about what it would be intended to be used. Mr Streeter you might recall, the person who developed this, clearly said to the Commission that it was not intended to be used for the purpose of selecting people for redundancy. He was absolutely clear about it and that was at about paragraph 2174 and following. Fifthly, I think we wanted to say something about the nice evidence if you like, or the cute evidence, about the abuses that are inherent in the system. That is, what is it measuring.
PN4123
It doesn't measure productivity, it can't be said that it measures productivity. Once again, Bernays was quite clear that it relates to the work you do and the travel time and he said this morning, although he tried to back out of it later on, he said this morning the work you do is what is related to productivity. It doesn't measure incomplete jobs. If you are unlucky enough to be the victim of lots of incomplete jobs, then bad luck, so it doesn't measure that aspect of your work nor does it measure - sorry, by reason of the fact that it includes travelling time in an arbitrary and capricious way, nonetheless, it can't be a measure of productivity once those two factors are taken into account.
PN4124
THE COMMISSIONER: You don't have to go further and say it's an average, do you, to say that it doesn't measure individual productivity.
PN4125
MR REITANO: That's right but going to be used for the purpose of showing you the door if one of the criteria in the redundancy indirectly is what is important. I think it goes further in terms of that because it was so open to abuse. You don't have to pursue, in my respectful submission, that people are acting dishonestly. In an environment where you can do it - redundancy was only last July - or you can do it over the last decade with 90,00 to less than 40,000 employees.
PN4126
It might not be surprising that someone would sacrifice their lunch break and work through their lunch break to save the incomplete job or add hours on at the end of the day that they are not going to claim for to ensure that they complete the job and get the points and that they are not going to be a target. There is no account taken for that possibility nor is there - and there was evidence about this from various of the people - I think Mr Searle and Mr Wilde in particular; nor is there any account taken of the fact that people might cut corners.
PN4127
There is the illustration that I think came from Mr Searle about, if you need to wait for someone to go under the house you are not going to wait, you are going to go and do it, you are going to cut the corner, you expose yourself to the risk. None of these are surprising consequences, in my submission, they are ordinary human nature, particularly where you know, if you know, that this is going to be used for the purpose of selecting you for redundancy.
PN4128
The injunction or the harshness emanating from the fact that the tool that is alleged to be measuring productivity is very much measuring something else and that is people's ability to abuse the system so as to ensure that they won't be either the target of performance plans or redundancy. All of this is taking place in an environment where people are not told. You might recall witness after witness of employees being told that this will be used in a redundancy process. Witness after witness, well not directly, no.
PN4129
Mr Bernays again, Mr Agius yesterday, almost universally, no one has had laid down to them, look, CC points will be used for redundancy. Some of the employees - Searle said, I think it will be but I don't know. All of this that that we might expose you to a performance plan if you see C points are not good enough, employees are not educated enough. What is important about that, why is it relevant to the issues that you need to determine, Commissioner, is this: the world starts at July last year in terms of CC points, untested, never before used in Telstra, in that sense supportive of the issue. The issue is exception.
PN4130
Untested, untrialled, no consultation with the CEPU, no evidence of input from individual communications technicians, none called by Telstra. Most of the witnesses called on the union side of things either didn't understand the briefing they received in it, far less were they trained in the way that it would operate and far less again were they told what it would be used for and yet you hear all this evidence about how it's the best productivity measure I have ever seen and, yes, it will be used in the redundancy process.
PN4131
What is the justice in all of that for individual employees when Mr Searle is told that he's been chosen for redundancy if it be that it is, if one assumes that he is, what's the justice in all of that that's gone before to him. Never told this criteria will be used. This is exactly how it will be used and this is when it will be used, this is how we will judge it. Yes, for better or for worse your team leader has had a discretion and has introduced a subjective value judgment in respect of what your targets are and the like. All of that has been the case, yes, you've been chosen for redundancy.
PN4132
It's July last year that Mr Searle should have been told not as Telstra 19 suggests last Friday when one receives further material, not the subject of any consultation with the CEPU or employees, no warning to anyone that it's coming, no discussion about it, we are going to act in breach of the consultative requirement of the enterprise agreement and in breach of the no extra claim clause from July last year, we are going to change this when we like, we don't care what the unions says about it, we don't care what individual employees say about it and if you are put on a performance plan it doesn't matter that you didn't know the rules in the first place.
PN4133
The sixth matter that I want to specifically - I said earlier and I think I wanted to give you a specific reference - an issue about some people saying that it won't be used in terms of the redundancy process or dismissal process, as Mr Bernays said, there is an annexure to Mr Murphy's affidavit which is CEPU3, Annexure 4 and 5 where it is at least capable of being read and SBM5 is a letter from Telstra that tells Mr Murphy that it will be used in the redundancy process but it won't be used as the sole criteria.
PN4134
Now, all of what I have put in terms of the points that I have developed so far in terms of the way in which CC points were introduced, what it is a measure of, what it's intention was and so on, is against a background where there has been at all times and I think nothing could be clearer from the evidence that the CEPU has opposed its introduction in the form that it is in and has been agitating and saying, these are the complaints we have, these are the matters you should deal with. There is a whole range of matters that are dealt with in the correspondence annexed to Mr Murphy's affidavit.
PN4135
There was another letter which was tendered during the course of the proceedings that list the CEPU concerns about the dealing with inclement weather, the dealing with travelling time, the dealing with incomplete jobs and the like, they are listed in paragraph 9 of the outline of submissions, most of the complaints. You have not one piece of evidence that says, we've addressed this concern, not one. Nowhere has there any attempt to give any legitimacy to any of the complaints, complaints which don't necessarily come from the CEPU, Wilde, Streeter, other witnesses conceded, Mr Bowman frankly conceded there was an arbitrariness in the travel time. Yet, you find no evidence, bucket loads and bucket loads of statements, bucket loads of examination-in-chief from my learned friend and you will find no evidence that anything has been changed to address any of the concerns that have been raised by these people.
PN4136
Yet, this is to be used to show people the door, either for disciplinary reasons or for redundancy reasons and in our submission that really highlights the attitude that accompanies the introduction of CC points from July last year and that is, our way or the highway. That is inconsistent, in our submission, with the obligation to consult that arises from the Certified Agreement.
PN4137
Finally, can I say this about an exceptional matters orders, one thing that is important to note about the nature of the relief that is sought in the proceedings is that it is limited in terms of its duration. It won't prevent Telstra - I don't know if this should be seen as a concession or not and that's why I hesitated but I think it is clear enough from the order - it won't prevent Telstra from measuring productivity by use of CC points, it will have some effect on what use those points are put to.
PN4138
But one of the things arising from the limited duration of any order that the Commission can make, is that it will allow the process of refinement of information dissemination of proper and fair consultation to a company, any attempted use, directly or indirectly - - -
PN4139
THE COMMISSIONER: Why will it permit that?
PN4140
MR REITANO: Because it does not prevent CC points from - - -
PN4141
THE COMMISSIONER: I understand but you go the next step, why would it then permit the parties to discuss and negotiate?
PN4142
MR REITANO: Why would it? Well, it wouldn't compel them to in that sense, it would allow them to.
PN4143
THE COMMISSIONER: Do you have any expectation that the parties would?
PN4144
MR REITANO: Well, I suppose the answer to that is, who knows on one view. But can I just perhaps take it the next step, I can't remember the period of time, I think it's two years, yes, the order can only be valid in accordance with the Act for a period of two years. Presumably in that time there would be a whole range of things that would happen; one is that the current Certified Agreement would expire and there may be claims made in terms of, different claims made in terms of the obligation to consult, for example, under the agreement, the world might be different in two year's time, one doesn't know.
PN4145
So there is a whole range of variables that are unknown. What we do know though is that in two years there will presumably be a sensible process of education of the work-force.
PN4146
THE COMMISSIONER: It's just that I raised the question because I wanted to know whether you think I should have some confidence that by making such an order it would facilitate discussions, I don't know whether I could have such a confidence.
PN4147
MR REITANO: Certainly from our side, I can only say that that's our intention. There is nothing that would ensure for such a process. I couldn't stand here and say to the Commission that Telstra wouldn't thumb their nose at that opportunity or that - - -
PN4148
THE COMMISSIONER: You don't have to put it pejoratively, they - - -
PN4149
MR REITANO: I am not trying to, I usually am but on this occasion I am not.
PN4150
THE COMMISSIONER: No but they could simply take the view that they don't want to discuss the matter.
PN4151
MR REITANO: Indeed.
PN4152
THE COMMISSIONER: And it is not as if - in some cases when you are making what you might call an interim order, you do so to provide an environment in which the parties can then have some discussion and hopefully with a view to reaching agreement. I don't sense that the same desire is there on behalf of Telstra in relation to this matter.
PN4153
MR REITANO: Well, I can't obviously comment on what Telstra's desire is but let us assume the worst and they say, we have no desire for that but the Commission lays the foundation by saying, well, there is a stay of execution or there is an interim order on CC points for these purposes, limited purposes, for a period of two years, it at least allows the opportunity for it to take place. If it does not take place, then obviously it is a matter for - take the worse scenario of what you are saying, the Certified Agreement expires, I think industrial warfare is said to be a phrase that should be deprecated in Electrolux, I like it.
PN4154
THE COMMISSIONER: I think there is an ex-member of the Commission that is speaking in the week-end that might like it, too.
PN4155
MR REITANO: Industrial warfare breaks out, everyone partakes in protected action and there is a deal done on the uses that CC points will be put to in any future Certified Agreement, you just don't know.
PN4156
THE COMMISSIONER: No.
PN4157
MR REITANO: But what you do do, is you create the opportunity, you create the environment, you fertilise the ground, whichever way you want to look at it, where it may happen and you also, at least for the interim, remove the possibility that employees will be unjustly dealt with. In circumstances you don't need to go much further than Mr Searle's evidence, he just had no idea what this was about and yet, he was a victim of it, put on a performance plan and he had no idea. No one had told him, this may be used for this purpose, this is the way it's developed, this is how your points were arrived at, no idea.
PN4158
Why is it just that he be judged on a criteria that he has no knowledge about? How is that fair? How is it fair that his representative organisation hasn't been listened to in respect of any of the complaints that it's made about it? I am not going to repeat all of the things that I've already listed off in terms of why we say it is unjust but at the end of the day the Commission making an order may create the very real possibility that there is a meaningful process engaged between the parties where they can come to some sensible resolution of some of these issues. One just doesn't know.
PN4159
THE COMMISSIONER: Yes, thank you.
PN4160
MR REITANO: I think the only other matter that I want to raise, as I say, I've already referred to the written submissions. The only other matter that I think there is any moment in terms of what we wanted to say about the evidence. I've already said some things generally about Mr Costa and his evidence and how the Commission should treat his evidence and should view his evidence. I do however, want to emphasise to the Commission that Mr Costa in a very real way, putting aside all the mud, Mr Costa in a very real way illustrates some of the very real practical problems that emerge in terms of this matter but I won't take the Commission specifically to either of his performance review, the April one or the July one but the Commission might recall Mr Costa frequently making the complaint in his statement - Mr Agius conceded it yesterday, that he didn't have an essential tool that he needed for some of the work that he did, the looper line.
PN4161
In addition, the Commission might recall that Mr Costa, when it came to his July review which was also his annual close as I recall as well but when it came to his July review it was judged in respect of a period when he was on light duties. If anyone read the review for June one could well have been under the impression that he was judged for a period when firstly he had all of the equipment that he needed and secondly that he was fully capable of performing all these duties.
PN4162
THE COMMISSIONER: But the data upon Mr Agius relied was data from May.
PN4163
MR REITANO: Well, that's what said/.
PN4164
THE COMMISSIONER: Well, that's what the evidence is, isn't it, in the material that was put.
PN4165
MR REITANO: Well, the document is headed The June Review.
PN4166
THE COMMISSIONER: Yes, but the material appended to it is clearly May data.
PN4167
MR REITANO: I think you will find there were two sets of material in the exhibit. One was the annual close material and the other was the review. I may have misunderstood the material but my understanding of Mr Agius said in respect of the document - and he was taken to it a number of times - is this is reviewing the period June. H was then taken to the other part of the document which dealt with May. I concede that it dealt with May but he conceded that the three pages constituted the June review.
PN4168
THE COMMISSIONER: I see the point
PN4169
MR REITANO: As I understood his evidence. Whatever might have been annexed to it. In any event even if, let's accept for a moment that it was May, where in the document does it say Mr Costa's CC points need to be considered against a background where he did not have a loop-o-line. Where in any of the document does it fairly reflect that? What is the fairness in the whole process of CC points when Mr Agius says February, in my discretion, for whatever reason, the February/March - it's either January, February, March or February, March, April, I can't remember but for three months I didn't even bother about his points but I knew that he was hopeless for those three months. Where is the fairness in that? Where in any of the material, any of the material that has been tendered to the Commission, does it say that someone's CC points should be suspended and there should be no review of them?
PN4170
One of the whole fundamental problems when it comes to deal with Mr Costa's evidence as I say is that it illustrates a large number of the problems. Costa himself says look I've got all these complaints in the last paragraph of his statement, none of which have been listened to, I'm just told my points are down. Even if we rather ignore everything else you directly have an employee saying to his supervisor - who says look we get on pretty well other than this day out at Hammondville which even then we were civil to each other I just happened to threaten him with a few things but putting that to one side, put all that to one side, we got on pretty well and Costa said I raised all these problems about CC points with my supervisor and nothing, nothing came of it. I told him time and time again I didn't have an essential piece equipment, nothing came of it. Where is the justice in the approach that they take?
PN4171
There's no issue that they can have a measure of productivity. There may be an issue as to its overall harshness or its unjust impact on employees but there's no issue that they can have a measure. If you're going to have a measure firstly it needs to be fair and secondly people need to know what it is going to be used for and how it is going to be used. The substance of this case, putting aside all of the questions about whether it measures travel time fairly and so on, the substance of this case is Telstra's unilateral determination that it will implement this irrespective, whether any consultation, without training, without information, without listening to anyone's complaints and yes, it may be used to terminate your career in Telstra. That's the real injustice and we say for those reasons the order should be made.
PN4172
THE COMMISSIONER: Thank you. Now, Mr Wood, have you been able to reflect your client's - - - ?
PN4173
MR WOOD: I've been able to reflect myself but not with the benefit of instructions, Commissioner.
PN4174
THE COMMISSIONER: Well, perhaps I can adjourn for a while because it would really assist me if there are some things which you can say that there is simply no contest about, so that I can simply focus on those areas where there is a contest.
PN4175
MR WOOD: Yes.
PN4176
THE COMMISSIONER: Well, 15 minutes?
PN4177
MR WOOD: My learned friend just mentioned that I've got some submissions that I have to make some small changes to on the evidence. I wonder whether it is worth handing them to you now, Commissioner, but they're not focussed in the way that your comments - - -
PN4178
THE COMMISSIONER: Yes, I think I'd like to hear from you first.
PN4179
MR WOOD: Yes, very well.
PN4180
THE COMMISSIONER: As to whether there is some matters that I can simply consider that are not in issue. We will adjourn for 15 minutes.
SHORT ADJOURNMENT [11.04am]
RESUMED [11.30am]
PN4181
THE COMMISSIONER: Yes, Mr Wood?
PN4182
MR WOOD: Thank you for that time, Commissioner. In relation to the three issues that are agreed and three that were not agreed, you may well anticipate what I am about to say, Commissioner, but the first two of the agreed points we say are agreed. The third point of the agreed points, that CC points will not be used directly in relation to dismissal or redundancy we don't agree with and in relation to the three non-agreed points we don't agree or there's a double negative there, we agree that they're not agreed.
PN4183
THE COMMISSIONER: Yes.
PN4184
MR WOOD: The third of the not agreed points relates to the manner in which feed back in relation to the CC measures is given and the frequency in which it is given and the extent to which employees can determine that frequency.
PN4185
THE COMMISSIONER: Yes, and that's not agreed.
PN4186
MR WOOD: That's not agreed.
PN4187
THE COMMISSIONER: Is there any evidence you can quickly point to me of your witnesses that would demonstrate to me that point 3, that CC points would not be used directly to dismiss or selection of redundancy? You will take me to that, would you?
PN4188
MR WOOD: I just have to follow the question, Commissioner, sorry.
PN4189
THE COMMISSIONER: Well, my impression from the evidence, that's why I put it there, was that all of your witnesses took the view that CC points would not be used directly to dismiss or for selection of redundancy. That's as I understood their evidence unless I missed something critical.
PN4190
MR WOOD: I think that is fair in relation to some of the witnesses but is not fair in relation to others because of the nature of the word directly. That is what does directly mean? Now on one view of the evidence on a strict view of directly what you say is correct. On another view of what the word directly means we would say that the evidence doesn't support that. That is if one was to take a monthly CC measure and say to an employee you are to be terminated because of that in the absence of anything else, that is direct and sole use of the CC measure, then the position would be that we would agree that that is not the way in which the measure is to be used.0
PN4191
THE COMMISSIONER: Or if the CC point in isolation over six months suddenly you've got a list of CC points over six or eight or 10 months.
PN4192
MR WOOD: Well, that's where the difficulty becomes, Commissioner, because it may be that - this is where we are into an area of hypothesis because - - -
PN4193
THE COMMISSIONER: No we are into a very real conflict. That's why I put the question because the issue between you, the very issue between you, is the union take the view that you want to have maximum use of the point for any purpose and that's what they're asking me to conclude. I've heard evidence from people who say it's not designed for that purpose, it will not be used for that purpose. One of the things that troubles me about your answer is whether those instructing you have sufficient authority to answer the question.
PN4194
MR WOOD: As I understand it they do, Commissioner.
PN4195
THE COMMISSIONER: I'm not asking for your observation. I said that troubles me, it doesn't have to trouble you, you are instructed, that troubles me because this is a pretty important aspect of the case and I find it a bit troubling that the safe course is to have me to decide everything and that's your answer.
PN4196
MR WOOD: There might be an inference in there, a sort of implication, I'm not quite picking up, Commissioner.
PN4197
THE COMMISSIONER: No, no, the safe course from Telstra's point of view is for me to decide everything. Those instructing you is the safe course is for me to decide everything in effect is what is being put to me from Telstra - I'm not critical in one sense but everything is up for decision, every piece of evidence is up for decision even if I don't perceive there is any difference in the evidence and it may be the question of directly and indirectly but everything is up for decision and every point is raised and taken.
PN4198
MR WOOD: Subject to what my learned friend says and what I say I think we've got down to the heart of the matter but the heart of the matter is this question of - and I know you say it's not hypothesis, Commissioner, because it is a real matter. It is a real matter between us but my point was, it's hypothesis to the extent that the evidence shows that no-one has been put on a performance plan. One witness on a pinpoint performance plan, Mr Searle, one witness, Mr Costa had a one on one meeting where he would be put on a performance plan.
PN4199
The reason I say it's hypothesis is that we don't know in relation to a particular individual six or 12 months down the track what that individual's answers to questions or responses in one on ones or during the performance plan meetings will be. Now it may be that that employee denies everything, says, I don't need any training. There's nothing wrong with my performance. I'm not taking extra time off for lunch. I don't need other equipment or it may be after the three months. He's got all the equipment that he says he needs. At that point it may be that that employee is terminated directly for a low cc measure - - -
PN4200
THE COMMISSIONER: No. Directly for the conduct and that's the very question I put to one of your witnesses.
PN4201
MR WOOD: That's really the, you might say, the problem with the word, directly, in this sort of case.
PN4202
THE COMMISSIONER: No, it's justified on the conduct and the inquiry by the team leader, which is the question I directly put to one of your witnesses. If you could use all of the material to give rise, would that overcome your business problem and the answer is yes.
PN4203
MR WOOD: And you said that's Mr Bowman I think last time that he did say yes.
PN4204
THE COMMISSIONER: Yes.
PN4205
MR WOOD: The issue though is, say that eventuality occurs. Say there's an order saying you cannot directly use the cc measure to terminate somebody and at the end of the process all that the person terminating the employee has is the cc measure because there is - all the training's been provided. All the equipment's been provided and the employee themselves is denying that it's them. How then could you say anything other than the proof? That is, the measure is being directly used to terminate the individual because it is the way in which the team leader or the HR person or whoever it is knows - knows might be too strong, makes the allegation that the performance is unsatisfactory.
PN4206
THE COMMISSIONER: Yes. Though my mind went to say, an unfair dismissal case where Telstra put up a cc measure and says, that alone constitutes a fair dismissal and that's what prompted me testing whether or not there was any area of possible agreement that I wouldn't have to look at.
PN4207
MR WOOD: I think that - there was agreement to that proposition, I think from all the witnesses and I'll go through the evidence in a moment, Commissioner, but my proposition's really - it's perhaps more of a lawyer's proposition than an industrial realist's proposition. That is, what I'm putting is that one shouldn't make an award which uses a word like, you shall not directly use a measure when there are circumstances in which it may well be argued that the measure is directly being used though the intention is that it's not to be directly used in an industrial sense and that's really why we say we don't agree with proposition three.
PN4208
That's the first reason. The second reason we say it is related to your example, Commissioner, that is imagine an unfair dismissal process. It also relates to the terms of the exceptional matters order that there shouldn't be harsh outcomes. The issue of the extent to which the cc measure is used will be tested if at all in any unfair dismissal proceeding. That is, instead of looking forward to see how the measure might be used, one has the benefit of looking back to see all the steps that have been taken, that is, the measure, the communications, the training, the equipment and any other steps that have been taken, to see whether or not the dismissal was fair.
PN4209
Now, the dismissal may be fair even if the cc measure is used directly to terminate the employee at that stage. In the absence of other evidence and that's really at the heart of that part of our problem with that part of the order.
PN4210
THE COMMISSIONER: All right. Well, you are free to put up an alternative proposition but I then would be greatly assisted in your submissions as to how I should take what seems to be the evidence of Telstra's stated opinion, namely that employees shouldn't have to fear it because it won't be used for - it's not designed for this purpose.
PN4211
MR WOOD: That's true.
PN4212
THE COMMISSIONER: And it won't be used for this purpose, and how do I then grapple with that against the background of Telstra and I don't say it in a critical way, say notwithstanding all of that, it may. Notwithstanding all of that we reserve ourselves the right to use it solely or exclusively for that purpose.
PN4213
MR WOOD: Yes.
PN4214
THE COMMISSIONER: Mr Murphy will now leave us. You see the point that I'm putting to you.
PN4215
MR WOOD: I see the point but I do think it can be accommodated in this way, Commissioner, in really the way that I've tried to say but it's not the intention of Mr Streeter who designed the measure for it to be used as a - even a productivity measure. His evidence was it's an output measure.
PN4216
THE COMMISSIONER: Yes.
PN4217
MR WOOD: Now, that's true. The fact that it's not Mr Streeter's intention to use it as a productivity measure doesn't mean it can't be used as a de facto productivity measure.
PN4218
THE COMMISSIONER: No, but to be blunt about it the further it gets down the line, the further people tend to rely upon symbols rather than have an understanding of its use and it's a management tool, a management crutch whichever way you want to look at it, to assist the poor old team leaders that have got a hard enough job and who would now have the - in one sense, you know, a sad way that this case has developed of putting team leaders and members of teams on trial when it's simply a policy decision that's way above them. I think to use one phrase, all the way to the top. It's way above them.
PN4219
They just simply implement policy and what I'm being faced with is what constraint, if any, do I put upon that policy or what role, if any, do I have in saying, well, all this is said not to be used but we should just let it go.
PN4220
MR WOOD: The proposition that you put is quite right, Commissioner, that the further you get from the source, that is in any large organisation one has this problem, that the general gives commands but the privates might not be carrying out the commands properly. Well, that is the nature of any organisation. But that's no reason to say that the command is bad and that that command can't be given. What it is is a matter of saying is that if the private doesn't carry out the command in a proper way there should be some redress for that. There should be some opportunity to have those actions called to account. For over ten years now we have through the unlawful termination provisions - - -
PN4221
THE COMMISSIONER: Is that the way to look at it, that it's too late because an unlawful termination matter, as we all know, is firstly hardly fought? I don't know of any involving your client where there has been successful conciliation and consent. Don't know of any, I might be wrong, I don't know of any. They certainly, if the finding is adverse to your client, there's always an appeal. So we are 12 months later and there's just no hope, well, I think one was reinstated but subsequently a deal was done.
PN4222
MR WOOD: I can't comment on that Commissioner.
PN4223
THE COMMISSIONER: No.
PN4224
MR WOOD: Because you have much more experience in relation to those matters than I do. All I can say is that that protection is there and that the remedies that might be given are important ones and they potentially can solve any of the problems that are identified.
PN4225
THE COMMISSIONER: Well, if it involves completion points, Mr Wood, if it involves a trial of completion points I would be prepared to guarantee that it would be fought no less as vigorously as it is fought today.
PN4226
MR WOOD: I think it would be fought, I think you are quite right Commissioner.
PN4227
THE COMMISSIONER: Absolutely.
PN4228
MR WOOD: It would be fought more vigorously because - - -
PN4229
THE COMMISSIONER: If there was a dismissal that point completion points on trial for the purposes of a termination the money and effort thrown at this proceeding would be at least replicated for the same reason, for exactly the same reason.
PN4230
MR WOOD: That's true Commissioner, but one then has the advantage of working out in the whole scheme of things in relation to this individual whether or not this individual has been treated fairly and whether the termination is fair.
PN4231
THE COMMISSIONER: Your client sees no advantage than, if you like, narrowing the points of argument as a consequence of these proceedings?
PN4232
MR WOOD: Well, I couldn't say no to that Commissioner, all I could say not in the manner proposed by the union.
PN4233
THE COMMISSIONER: I see.
PN4234
MR WOOD: Now I am on my feet, I don't want to be sort of disingenuous, I can't actually think of another way, but that's not to say there isn't another way.
PN4235
THE COMMISSIONER: All right. Thank you.
PN4236
MR WOOD: Commissioner, may I hand up our final submissions on the evidence. I have given a copy to my learned friend and I'll hand a copy up to the Commissioner.
PN4237
MR REITANO: Could I see the copy that is being handed to the Commission please?
PN4238
MR WOOD: Sure.
PN4239
MR REITANO: I want to make sure that the word, fraudulently, is deleted in the Commission's copy of paragraph 15.9. Thank you.
PN4240
THE COMMISSIONER: Thanks, Mr Wood.
PN4241
MR WOOD: Thank you Commissioner. Commissioner, I intend to make some slight changes to these submissions having regard to some comments between my learned friend and you in his final submissions. 15.2, we don't say so strongly that Costa is so untruthful that he even forget his own lies, we will say that he even forgets what he said. Allowing you Commissioner, having regard to paragraph numbers that we have referred to, to make your own mind up about that but I was going to make some submissions about Mr Costa's evidence. But having regard to the agreement I have with my learned friend that to an extent it is a side show and I'll explain why I agree with my learned friend in a moment, Commissioner. In 15.9 we say:
PN4242
Points overwhelmingly to the conclusion that Costa, Sparks and Satroni had -
PN4243
and we delete, improperly and fraudulently -
PN4244
taken sick leave together.
PN4245
THE COMMISSIONER: Yes, thank you.
PN4246
MR WOOD: While I am on my feet, Commissioner, dealing with slight amendments to submissions, in our submissions which were amended on 9 August Commissioner we need to make a couple of housekeeping changes to those.
PN4247
THE COMMISSIONER: Just a moment, did I give them a number?
PN4248
MR WOOD: I don't think so, Commissioner, I haven't marked them.
PN4249
THE COMMISSIONER: No, they are your 9 August updated outline of submissions?
PN4250
MR WOOD: Yes. The first change is in paragraph two the CPU's submissions are dated, it should say 16 April 2004, it says, 16 July 2004. Then at paragraph 29, this is a matter that you raised with us in last sittings, Commissioner, we would simply say Telstra disputes, so delete, whilst, and delete, formally, Telstra disputes that the award provision is reasonably capable of settling any matter in dispute in the log, full stop, and delete the rest of that paragraph. Then at paragraph 37 the heading to that paragraph should be, section 89A(7)(c), not (d). And then at paragraph 50 it is too strong, we say to say, the CPU has produced no evidence, we would say the CPU has produced, little evidence.
PN4251
THE COMMISSIONER: Where is this, it is respectfully submitted that there is simply?
PN4252
MR WOOD: No, sorry, the third line, the CPU has produced little evidence. At paragraph 51 we couldn't say in the first paragraph, the evidence proves that harsh or unjust can not arise under the present system, that's too strong. We would say, are unlikely to arise under the present system. And in 54, again we won't say, the CPU has adduced no evidence that the ..... is being used harshly, has adduced little evidence. In paragraph 59, having regard to the High Court's decision in Electrolux we don't press the third sentence, that is the sentence that starts with, the Commission, and has the reference to Unilever in it. So delete, the Commission has clearly begun to take this approach right down to the end of that paragraph. And in paragraph 65 we don't press that paragraph at all.
PN4253
We don't say that we can rely upon 3I of the objects of the Act. Commissioner, if I could just now take you to the submissions on the evidence which is the first document I handed up I can skip through the first few pages and simply get to the point that we really wish to make first up which is how the evidence showed that the CC measure is being used and what we say is that the evidence from both the parties showed that the CC measure - and I'll take you to the specific parts of the evidence - has been used in a way that it is supposed to; that is, when one has regard to the evidence of Mr Wilde from New England, Mr Searle from the Port Macquarie area, Mr Costa and Mr Ross also in the Liverpool team and has regard to the evidence of their managers and team leaders one can say that the CC measure is doing what it was intended to do, that is, in relation to Mr Wilde there have been no problems with Mr Wilde and the CC measure. His performance has been good, it's never been raised with him on his one-on-one once. He's never failed to take any overtime, doesn't work through lunches, there's been no health and safety issues, he always does a good job with health and safety.
PN4254
In relation to Mr Searle, Mr Searle is evidence for us of how the CC measure should be used; that is an issue was identified with Mr Searle through the CC measure process. The issue was that he wasn't performing properly in consultations, in discussions with his team leader Mr Walsh. A training regime was developed. That training regime was rolled out to the whole Port Macquarie team to enable them to deal with ADSL installations more effectively and Mr Searle's performance improved. Mr Searle says that, ASM Mr Lilburne says that and that is a quintessential example we say of the way in which the measure should work and indeed did work because the one-on-ones held between Mr Walsh and Mr Searle and Mr Searle says has no problems working with Mr Walsh, he can talk to him at any time about anything, can raises problems with him, raised a problem and solved.
PN4255
The same thing happened at the Liverpool team with Mr Agius but not with Mr Costa but with Mr Ross. Mr Ross had a low CC measure. In one-on-ones with Mr Agius an issue was identified that he was spending too much time with customers, that is he was doing things other than the work that he should have been doing with Telstra. That problem was identified, some coaching of Mr Ross was undertaken and Mr Ross' CC measure improved.
PN4256
Now, of course, Mr Costa didn't like that which is why he attacked Mr Ross in that meeting in May which you've heard some evidence about, the team brief with Mr Bernays, Mr Agius, Mr Costa and Mr Ross and said, you're cutting corners. Mr Ross was upset about that. Mr Costa then denies that and in his statement replies said, no, it was just a joke, I didn't really mean it but again Mr Ross is an example of the way the CC measure is working.
PN4257
Mr Costa is also an example of how the CC measure is working though the other side of the coin, someone who is not frank in his one-on-ones, is not honest about his performance issues and is not going to admit to, we would say, the real reasons that his performance is low but that doesn't mean the CC measure is not working just because an employee doesn't want to take advantage of the opportunities given by the one-on-one process to actually deal honestly and openly with the problems with performance because there are going to be those sorts of employees within any organisation, certainly an organisation as big as Telstra. It means the CC measure did identify a problem with performance, Mr Agius did speak to him and the matter deteriorated because, we say, Mr Costa wouldn't be honest about his own performance problems.
PN4258
That's really the primary point we make from the evidence, Commissioner, and we follow it up say saying, and I am repeating our initial discussion here, if the issue between Mr Costa and Mr Agius or, indeed, Mr Ross and Mr Agius or, indeed, Mr Searle and his team leader Mr Walsh in Mr Costa's case continued or in Mr Ross or Mr Searle's case had gone down a different route the Commission would be in no position now to work out whether or not the CC measure itself was a problem which needs to be fixed now. One can only look back after there's been meetings, after there's been training, after all the equipment is given, after all the discussions have occurred.
PN4259
It is easy to show when the CC measure has worked when performances improve because a problem has been identified and performance improves but on the flip side when performance doesn't improve one can only look back from the position of a termination to say whether or the CC measure has been used fairly or properly because the whole point of that process is that there has been some, in that particular category, there is not an honest and transparent relationship between the team leader and the employee and the employee is using the CC measure or alleged problems with the CC measure to get away from problems with their own performance.
PN4260
THE COMMISSIONER: That's the case in an unfair dismissal but what about the redundancy situation where the employer looks towards selection for redundancy and has in its mind retaining the most efficient people? Now, does the measure then in isolation provide a selection trigger?
PN4261
MR WOOD: It depends on what you mean by "trigger" but - - -
PN4262
THE COMMISSIONER: Well, all things being equal you've got to get rid of three people; there's no argument about a business case, 3 out of 20, and what the employer normally does is he says, well, I've got to keep my best. These people have had poor CC points for the last 12 months, they go, they select themselves.
PN4263
MR WOOD: It's a little bit difficult to give a definite answer to that, Commissioner, for similar reasons that I've given in relation to the termination, that is, there haven't been any redundancies where the CC measure has been used anywhere.
PN4264
THE COMMISSIONER: No.
PN4265
MR WOOD: In one situation in the Sydney Region there were redundancies in July 2003 and the CC measure came in around July/August 2003.
PN4266
THE COMMISSIONER: Yes, but it must be must it not?
PN4267
MR WOOD: I beg your pardon?
PN4268
THE COMMISSIONER: It must be used; if there is to be a redundancy it must be used.
PN4269
MR WOOD: Yes, that's the - - -
PN4270
THE COMMISSIONER: The last exhibit Telstra 19, a circular, says:
PN4271
Completed contribution is the key measure of productivity.
PN4272
MR WOOD: The word I was really quibbling with was the word "trigger"; what does that mean? Does that mean - - -
PN4273
THE COMMISSIONER: Well, you've got your poor old team leaders who are told, give me a list of people to do. It's a horrendous thing to have to pick someone for redundancy. Nine times out of 10, who am I going to pick? So you go down, you look at your list and you say, well, the bottom three are the worst performers in terms of productivity. There you are, area manager or there you are, they're the ones, because it can't be subjective, it's got to be some sort of objective.
PN4274
MR WOOD: Yes, that's true. I mean that's the - - -
PN4275
THE COMMISSIONER: And that seems to be the objective criteria that stands out in terms of an individual's productivity.
PN4276
MR WOOD: Well, that may be in circumstances. It may be, for example, and this the nature of looking forward rather than looking back when the evidence is in, it may be that there are, say there's a redundancy in a team of 15 or say it's a redundancy in a, I think Mr Lilburne's mid coast area is about 70, no, it's more than that, no, it's 170, say there's a group of 70 from whom selections have to be made. Say if there are three employees and say their CC measures are a half or one, right out of the scale and say everyone else is grouped in the, say, three to four area.
PN4277
Now, in those circumstances, it may be appropriate to use those figures, that is without much additional information. But it may be that in a certain situation the numbers are more tightly grouped. The number of people that you've got are - sorry, that have to be terminated is larger in which case one has to look more closely at the behaviours. But we must remember there's a touch of you're damned if you do, you're damned if you don't, in any of these decisions because if you select in that outlier issue, if you select the three people who have a score of a half or a one, you may well get a challenge from one of those people.
PN4278
If you look at their underlying behaviours and use a subjective measure from the team, he says, no, this guy who was on a three is actually not as good a performer as the people on the one. You select that person, then, of course, that team leader is going to be in the witness box and cross-examined along the lines, but the objective measure is the other three people had one, one and one. Why do you say that?
PN4279
Now, that's why it's just - in prospect it's so difficult to say with all the combinations and permutations that can occur in any termination for performance or any redundancy, whether the numbers will be used as numbers or mainly as numbers or whether the underlying behaviours will be examined, though the intention, of course, is that the underlying behaviours and performance indicators, sorry, the underlying performance behaviours, are the things that will be identified and judged.
PN4280
THE COMMISSIONER: Well, let me put this proposition to you. Here I'm being asked to look at eliminating a variable for the future. The majority in Pacific Coal which was adopted by the dissenting decision took a view that you didn't go to the minutiae of team leader's decisions as to these matters and that you looked at a range of reasonable responses and picked up some British experience and some American experience in that.
PN4281
What sort of decision do you think confronts me if I say do I now endorse it and adopt the submission if I find in favour of your proposition? Do I endorse it and therefore overcome any problem associated with redundancies in the future if the system is used or do I choose the opportunity now, if I find on merit that it's not worth endorsing, then do I create a real argument, if I don't issue the order for example, but I say, no, I just don't think it can be used but I don't issue the order or do I issue, if I find against you on merit, do I issue the order and put it beyond doubt? That's one of the challenges I have to face myself, I imagine.
PN4282
MR WOOD: Well, it is, Commissioner, but can I say this, the pre-condition to doing any of that is to form the view that the system isn't fair and the primary proposition that I'm putting really is that you can't look at one cog in the machine before the product has come out. You've got to actually look at the machine in total and look at everything and even if - you might have a termination where you say the use of the CC measure in this case was unfair, was inappropriate and should not have been done that way and the one on one should have been conducted in a better way, but, in all the circumstances, given all the performance issues, the termination is fair.
PN4283
THE COMMISSIONER: The underlying - - -
PN4284
MR WOOD: The underlying reason for - - -
PN4285
THE COMMISSIONER: Yes, well, that conduct for which the CC points points to.
PN4286
MR WOOD: Yes, and you can't now, in prospect, say that the system is unfair, given that it hasn't worked its way to a result, that is, if the intention is to use this as an average to identify performance problems across a team and then to use that identification as a basis for further discussion. You don't know now what the performance problems might be that will be identified. You don't know what the discussions will be. You don't know where they will end up and you don't know what the outcome to them might be.
PN4287
Well, were it such a sort of preliminary level with a measure that is used in such a gross form, that is averages over a group over a period of time, that you can't say that it will be used fairly or that it will be used unfairly, though the possibilities, we can't deny that, the possibility is that in one team leader in Karratha in Western Australia may well use this measure unfairly. I can't deny that. But you can't - - -
PN4288
THE COMMISSIONER: No, that's not the gravamen of what I'm putting. The poor old team leader, when it comes up to a dismissal, comes up to a redundancy, is irrelevant to the argument of high principle, will simply be irrelevant to the argument of high principle. The team leader will say I looked at the CC points and I found some errors in performance which I addressed but the CC points by themselves, you know, there it is. Now, the high principle that's involved is the measure itself, as a key measure of productivity and is a measure of performance at an individual level. So I was reading from the latest communication.
PN4289
That's the matter of high principle that Telstra believes must be maintained. Now, that's what I'm being asked by the union to say is this a proper basis now for employees to go forward, knowing that that measure is being seen by their employer as capable of giving rise to their redundancy or their termination.
PN4290
MR WOOD: Well, the short answer is on the evidence that you have so far is that you couldn't say that it will operate unfairly and certainly not to the extent required for an EMO, but you - - -
PN4291
THE COMMISSIONER: You say on the practice to date, the fears simply haven't been realised.
PN4292
MR WOOD: That's true, but not only that, you couldn't say that the system will operate unfairly or is likely to operate unfairly because there's so much further to go down the path.
PN4293
It would be a different issue if there were some system which by itself you could say with certainty was unfair in its operation no matter what happened. You only have to go back 30 years to pre-discrimination area to think of a performance system or a command that could be presumptively unfair.
PN4294
THE COMMISSIONER: The approach that some have taken in the unfair dismissal jurisdiction is to look at the system itself to see whether it manifestly creates an unfair result, rather than having to burrow down to whether, as an exercise of judgment, a particular team leader took one view or another.
PN4295
MR WOOD: And that's appropriate in the circumstances of a termination for redundancy or a termination for cause to look at the reason for which the employee has been terminated and then look at the mechanisms by which that reason is being proved, but at the moment one can't say with any degree of certainty - indeed, we would say the evidence is all the other way - that the system is fair. The system takes average measures of output as a de facto measure of productivity and then over a team or an area it's used to identify some performance problems which are then the subject of consultation. That's how the system has been used to date on the evidence.
PN4296
I can't say to you that in a year's time there won't be a situation in a termination or a redundancy where the CC measure, because of the circumstances of the responses of the employee or because of the outlying nature of the scores, that the scores won't be used as the main or to use the words of the order directly as part of the - well, it's not really part of the five factors; it's one of the parts of effectiveness which is one of the five factors - or directly to justify the termination of the employee.
PN4297
Now, at today's date, the system, we would say, on the evidence before you, is operating fairly. Sometimes one can get sort of distracted from the big picture but I think your observations, Commissioner, help to not get distracted from the big picture, it's a performance measure. That was the first point that you said, can you use a performance measure. Of course.
PN4298
That's not really the be all and end all but to an extent that's all the evidence that you have. It's a performance measure constructed in a certain way which gives an average result which is used over time to identify some problems. If that is subject to an order that that can't be used directly, used directly in relation to a termination or a redundancy, then it's difficult to see what sort of performance measure would not be subject to that sort of regulation.
PN4299
THE COMMISSIONER: But it's the indicia itself, not necessarily the performance.
PN4300
MR WOOD: But the indicia might be the proof of the performance in some situations.
PN4301
THE COMMISSIONER: No, it might support poor performance; it doesn't necessarily prove it.
PN4302
MR WOOD: It doesn't. That's quite true.
PN4303
THE COMMISSIONER: And that's the point that's being made by the union, I think.
PN4304
MR WOOD: And that's really our point in those type of cases where it might be the only evidence. It might be the evidence that you've got that the employee is not performing properly, because every time you do a ride on the performance is fine, every time you have a one on one no issues are raised, but this particular employee comes in at 1 whereas the whole team in the same area of say Dubbo in New South Wales is coming in at a group between 3 and 4.
PN4305
Once you put all that evidence before the Commission you might say, Well, what other evidence did you have? Every time he went out there he seemed to be on the job, didn't require any other training, had all the right equipment, what's your evidence of poor performance? And you might be driven back to, This is it, this is the evidence of the poor performance. At that point you can make an assessment, having looked at - when I say you I mean you collectively, the independent arbiter of the fairness of the termination can make an assessment, Do I believe this person?
PN4306
THE COMMISSIONER: Unless you turn out to be an enterprise of 20 or less in the not too distant future.
PN4307
MR WOOD: Notwithstanding what my learned friend said about the redundancy at Telstra I can't see that being a possibility for a long time for this respondent.
PN4308
MR REITANO: Depends how much you want to sell it for, I suppose.
PN4309
MR WOOD: That's really the gravamen of, in effect, the legal complaint about the order. It's true to say that industrially in 90, 95, 99 per cent of cases the measure won't be used like that.
PN4310
THE COMMISSIONER: That's why I was inviting the parties to reach some sort of common understanding, to see whether there was anything that could be agreed that I wouldn't have to decide, and therefore give rise to an order. There might be industrial understandings that could overcome the need for legal determination.
PN4311
MR WOOD: One would hope that, Commissioner.
PN4312
THE COMMISSIONER: It's never too late. We haven't been able tot do it and my invitation earlier on to see whether there was anything that didn't have to be the subject of determination hasn't borne any fruit.
PN4313
MR WOOD: No, Commissioner, and in paragraph 5 at page 7 of our submissions we deal with this point about consultation and conciliation. In response to your question of my learned friend whether there was any likelihood of any industrial agreement, the level of consultation over a three year period now from October 2001 to now, October 2004, during a developmental phase - this is at dot point 1 of 5.2 - said there was no consultation with communication technicians. At the very start there was consultation with communications technicians. Mr Bernays today in the witness box said one of the reasons that travel time was introduced in the CC measure was because of the complaints from Cts about the previous measure not including travel time.
PN4314
There was consultation and we set down eight sessions in six months from 2001 to 2002, consultation with the Victorian branch, consultation and communication as set out in the correspondence attached to CEPU3, there was also conciliation which was set out at 5.4, five attempts at it, and my learned friend said, well, this didn't change anything. The consultations did. The consultations changed the manner in which the measure was put together, it changed the - this is a year ago, that's in Mr Murphy's own evidence - it changed at least in regional services the ability to opt in rather than opt out.
PN4315
THE COMMISSIONER: This is for the messaging.
PN4316
MR WOOD: This is for the messaging. It changed the basis of the communications. Complaints were made that this isn't being well understood so the communication strategy was geared up. And you've had evidence of communications being continually put out, including last Friday, and intention to continually communicate before that, communications in May, and a lot of communications which the witnesses have given evidence about during the roll out phase in regional services in May and in metro services in July and August of 2003.
PN4317
So it's true that, and this is the first of your not agreed points, Commissioner, it's true that they didn't resolve the structural or construction of the measure issues, the constructional issues. But that rather puts the cart before the horse, just because the measure was not refined in a way that the CEPU were happy with doesn't mean there wasn't consultation about that and the evidence, if you look at Mr Murphy's statement and there is an important letter on 4 November last year, so almost a year ago, where a lot of the issues are thrashed out, it's about a 10-page letter concerning the construction of the measure.
PN4318
THE COMMISSIONER: That was before it was introduced, was it or not?
PN4319
MR WOOD: No, that was afterwards, that was afterwards, Commissioner but the - - -
PN4320
THE COMMISSIONER: The complaint as I understood it, was the consultation prior to its introduction.
PN4321
MR WOOD: There is consultation, my learned friend didn't take you to any of Mr Streeter's evidence or Mr Thomas' evidence which deals with the consultation which occurred in late 2001 through to early 2002, any of the consultation through the first developments which were in three areas; there was Newcastle, there was South Coast and there was one other area which is in the submissions, consultations throughout 2002. Then a gap as the measure was re-calibrated during the middle of 2002. A further five trials - - -
PN4322
THE COMMISSIONER: Is this consultation with the unions?
PN4323
MR WOOD: This is consultation with the union.
PN4324
THE COMMISSIONER: With the unions, yes.
PN4325
MR WOOD: This is with the union and with the re-calibration there's consultation with the union in Victoria involving Mr Streeter, so it's consultation with the union in 2001, 2002, through the first trial, middle of 2000 - sorry, beginning of 2002. Then consultation before the roll out in Mr Murphy's own evidence in March 2003, that's the first letter he's got attached to his statement, is a letter of 2003 before the roll out in May 2003.
PN4326
Now, by that stage there had been consultation for 18 months. It's just not right to say there has not been consultation about this process and there's been consultation with the communication technicians as well.
PN4327
Now, as you will note, Commissioner, the section 99 initially wanted the CC measure withdrawn and in effect although the order that you are being asked to make now, doesn't seek a withdrawal of the measure, in practical terms it amounts with withdrawal, can't communicate it all, clause 3.2 and you can't use it, use, whatever that means, directly or indirectly in relation to redundancy, performance or termination. So in effect, my learned says, well, they can refine the measure but you can't refine the measure unless you want to run the risk of being in breach of an award, refine the measure and then start using it or communicating it, you run the risk of being in breach of the award because this - and in effect, is the CC measure.
PN4328
Say if you introduce another performance measure and say it's close to the CC measure, you don't call it CC measure, remember the CC measure was originally called the Self Managed Team, this is in Mr Thomas' statement, say you re-calibrate travel times, call it another time and then start communicating and using that, arguably in breach of the award. Certainly if that was attempted the union would be back here quick smart or into the court to say, look in effect what has occurred. Commissioner, at point 7 of our submissions we talk about how the measures actually worked and I've indicated to you in our discussions how it's actually worked today, that is, as a measure on an average basis which allows for communications to occur to understand underlying performance issues.
PN4329
In relation to point 8 which is at page 11, the explanation of the measure has been extremely thorough. There are a range of ways people found out about this. All our witnesses, all Telstra's witnesses say there was extremely thorough explanation which cascaded down to the team level and CT level. Against that was the proposition put by the CPU, maybe that is what you intended but it didn't actually work out that way.
PN4330
Well, when one looks carefully at the evidence of the individuals, Mr Wilde and Mr Searle all agreed that there were explanations given about the CC measure. To the extent that their ASMs on separate dates in February and March this year attended team briefs where the CC measure was extensively discussed, Mr Lilburne says:
PN4331
There has been no discussion about the CC measure or not significant discussion since that team brief.
PN4332
Mr Hanlon says something similar, that is, for over six months, that is, the issue has died down in relation to these individuals who the union selected and it's clear, we would say on the evidence, that the CC measure has been properly explained. Now, that is not to say that communication should stop, the explanations should stop and that one should not keep continuing to try to find out whether there are any problems and to solve them. Telstra 19 indicates an intention to do exactly that.
PN4333
I mean, it is quite a bizarre submission made by my learned friend that it is all too late, he said, well, they communicated in May, 19 May 2004 and then last Friday. Now, the communication in May 2004 was to explain how the CC measure is to be used, is very similar to the explanation given to the union in that, I think it is exhibit 18 to Mr Murphy's statement, that 10 or 12-page explanation in November which is similar to the explanation that each of the Telstra witnesses say was rolled out.
PN4334
So we've got a consistent explanation in the same terms throughout the period from the last 18 months, at least the last 15 months about how the CC measure works. My learned friend's case is, well, you didn't explain it properly a year ago. We say, okay, we understand that, you say that, we don't think we have, here's all our evidence that we have but we'll explain it again, in May and we'll explain it again last Friday and in that communication we'll indicate that we will keep explaining it if there are any other problems.
PN4335
Now, it is not a legitimate argument to say, if you are truly interested in the question of whether this has been explained properly to say, well, it should all have been explained a year ago and it's too late now. The work-force is continuing, the work is continuing, the process of performance managing is continuing and the process of explanation has to continue.
PN4336
In relation to the complaints and this at point 9, Commissioner, it is said there are a large number of complaints. Well, the evidence is quite different from the witnesses for Telstra, each of them say that the level of complaints has died down. Now, my learned friend might say, well, Mr Bowman and Mr Streeter don't know about the complaints because they are largely removed from the work-force and that's - - -
PN4337
MR REITANO: All the work-force heard about how you treated Mr Costa.
PN4338
MR WOOD: And that's true but Hanlon, Mr Lilburne, Mr Bernays and Mr Agius all say that the level of complaints has died after an initial period whereby questions and some misunderstandings were clarified. But let us say all that is untrue, let us say a thousand out of 5000 CTs were complaining still, let's say, you had evidence from a thousand people that they didn't want this system, what does that mean? If the system is fair and there's no evidence that its been used unfairly you might have 5,000 CTs turning up complaining, so I don't want to be managed, I've worked by myself since the 1970s, I know how to do this job, I don't want someone measuring my performance and I can understand that.
PN4339
I can understand why you have many people complaining about it when you've worked independently but the fact of complaining doesn't mean that the system is unfair and indeed the proposition would be exactly the other way to not have a performance management system for a work force that is largely independent would be unfair to the employer because they couldn't work out whether or not the employees that they employed to do certain tasks were actually doing that task or were doing something else.
PN4340
Then there are some - I've dealt with the main headings in relation to which complaints are made. In relation to stress, the evidence was almost non-existent. In relation to excessive hours and overtime the evidence that you have heard, Commissioner, is that Mr Wilde has no problem getting overtime, sorry working additional hours. In our submission Mr Costa's evidence is that he was not in fact working through lunch or working additional hours, he's not working through lunch or working additional hours and Mr Searle gives some vague evidence about I have to - not have to, I do, to be quite careful and say I have to, I do. I do work through lunch. Of course he says I don't have any problems talking with my team leader, I don't have any problems talking to my previous team leader and each of the Telstra witnesses say this is highly unlikely no one works and doesn't put in a form and if it's authorised overtime they all get paid. It is we would say overwhelming evidence that no one is forced to work extra hours and overwhelming evidence that no one actually does whether forced to or not.
PN4341
In relation to the redundancy and termination points, that's been the main subject of our discussion, Commissioner. The basic point we make is that no one has been made redundant, no one has been terminated, no one has even been put on a performance plan as a result of this measure and one has to look at the results to see whether or not the particular redundancy or termination is unfair.
PN4342
That leads to the last issue that's raised, health and safety. Again no evidence of any issues about health and safety. The evidence that Mr Costa tried to lead was disputed. The evidence Mr Bowman said was in the Sydney region health and safety is actually improved. Mr Lilburne says quality as improved in the mid coast region and Mr Lilburne or Mr Hanlon I can't recall which it comes later on in his submission, look if someone is working unsafely then they're at risk of being terminated or disciplined because of their unsafe work habits.
PN4343
One can't say that there's no possibility of anyone working unsafely but one can say as we've said, Commissioner, that there are policies and procedures which are well understood about this, that employees are expected to work safely. In fact many of the witnesses said that's the primary obligation. In the absence of anyone saying that they've actually worked unsafely and no employee has, the evidence just doesn't even get to a level where you could form any assessment as to the impact of this measure on employees working in a non-safe manner.
PN4344
That leads to the issue of the CC measure, identifying issues for correction and I started with this, Commissioner, which is in truth this is what the CC measure has done. The evidence before you is that it's working, it has identified issues for correction and they have been corrected in relation to Mr Searle and Mr Ross but not in relation to Mr Costa. We make a number of submissions about Mr Costa. To an extent, my learned friend is right, is it a side show because the evidence in relation to Mr Costa and Mr Agius became an issue of was Mr Costa not performing or was Mr Agius managing him because of his involvement in either one, the union, these are his allegations or because he put a statement in that would witness to the Commission or lastly because he was injured.
PN4345
That's also an allegation he makes.
PN4346
You saw the witnesses, Commissioner. We've set out here what we say about them. We would say on any view Mr Agius evidence should be preferred to Mr Costa's on all counts. Mr Costa was evasive, he was unresponsive, he was truculent, he refused to answer questions. He gave evidence that suited his case when he decided to. He recalled when he wanted to. He didn't recall when he didn't want to. Compare that to Mr Agius who sat there and gave honest, deliberate, truthful answers, even when it didn't suit him. He could have put a witness statement in that said I never said we will go all the way to the top. He could have said that. No, he didn't back away from the things he did that could be taken to be things that he did him properly but he got into the witness-box and he told you what he meant by that. Compared to Mr Costa who told untruths about everything that he was asked about and we would say whose evidence is designed to avoid performance management of him, Mr Agius should be accepted on everything that he said.
PN4347
The only reason it got into this is because the CC measure is working. CC measure works. 15 April, one day before Mr Costa puts his statement in, there's a one on one, where Mr Agius says Rob, you've got to lift your performance, it's been six months now since your brother died, you've got to lift it. I am going to look more closely at your performance. Two weeks later he's out at a job and look what happens, Mr Costa is not there, he's off for an hour and 20 minutes visiting his mate Mr Sparks. All the evidence of 5 May and 28 May is designed to lead to an inference that in truth if you need to find this Commissioner, in truth Mr Costa wasn't at work when he should have been on 29 April and that's the reason that Mr Agius spoke to him.
PN4348
In our submission you don't need to delve into that issue if you don't wish to, Commissioner, because on 15 April, a day before the statement of Mr Costa was prepared, there was a one on one between Mr Agius and Mr Costa where the process started to work. The CC measure identified a performance problem and they had a discussion whereby it was indicated that performance was going to be looked at and when it was looked at Mr Costa treated it as an attack upon his participation in these proceedings, or as a union member, or was injured and Mr Agius said it was because it had been eight months since his brother had died and I had to manage his performance.
PN4349
Now, that's I think is all we need to say about Mr Costa, Commissioner, unless you want me to address you specifically in relation to that evidence. We've said something the order but I will just be repeating what I've said to you, Commissioner. I don't think I need to repeat what I've said about the order because I've said it in a variety of ways in answer to your question and in speaking to these submissions. I don't think there's anything else.
PN4350
THE COMMISSIONER: Thanks, Mr Wood.
PN4351
MR REITANO: There's a deal going on down here and my part of the deal is that I will finish by 1 o'clock and I think I will go very close to that for your benefit Commissioner.
PN4352
THE COMMISSIONER: It depends what accompanies the deal as to whether I ask you questions.
PN4353
MR REITANO: My learned friend even with questions kept relatively within the deal.
PN4354
Can I start by saying that although some of the corrections my friend made to his outline of submissions were very measured and very sensible. There is overall an air of unreality about some of the things that he's put to the Commission. One of the very easy examples and I don't rely on anything that Mr Agius said except this point. Yesterday he said look this issue seems to have gone quiet. It may be because everyone knows this case is on and as a matter of fact one can hardly imagine that Telstra would be provocative in terms of the use of CC points at a time when this is handing over their head; that is feed the evidence to the CEPU in respect of actual dismissals of people, putting people on performance plans and the like. My friend says, see, it all proves that it's working because none of this has happened.
PN4355
THE COMMISSIONER: Should I adjourn to hear you in six months time?
PN4356
MR REITANO: And keep the case hanging over our head, yes. One really has to take into account that, as I say, air of unreality in making that submission that it demonstrates that it's working. The real problem my learned friend has in everything that he put to you, Commissioner, and I will come to deal specifically with some of it, but in everything he put to you the real problem is his evidence gets in the way of his instructions; his own evidence gets in the way of his own instructions.
PN4357
Bernays; I won't go to Bowman, I won't go to the others, Bernays will do, he's fresh in our minds. Yesterday and this morning he was unequivocal; this will not be used directly for the purpose of selecting people for redundancy and in a sense it becomes ultimately the Commission's problem but it illustrates our problem. We are told on the one hand by someone like Bernays, and there's no reason why anyone would doubt his evidence in this respect, we're told by him that it won't be used directly to select people for redundancy yet when we stand up in the Commission we listen to, and I don't want to be pejorative or disparage or deprecate my friend's submissions, but we've listened to equivocation, qualification, game-playing that might suggest, well, in fact what Mr Bernays is saying is wrong and that it will in fact be used to directly select people for redundancy.
PN4358
Ultimately, that lay at the heart of the matter. As I say, m y learned friend's evidence of all these witnesses they all speak in relatively one voice, some of them take the same qualifying line that my learned friend said, but people like Mr Bernays were quite frank and quite clear that the purpose was not to use this directly for selecting people for redundancy.
PN4359
Why would it be just then for employees out in the field, those who have been told, by Mr Bernays, this will not be used. Presumably he tells them what he tells you, Commissioner, on oath; this will not be used to select you directly for redundancy. Why would it then be fair for him or some other manager in Telstra to turn around and take advantage of my friend's reservation on instructions of the right to use it directly. How could one say that the consequence of an employee being dismissed in those circumstances or being selected for redundancy could be something that's just.
PN4360
My friend posed this question or gave an illustration. I don't know why he chose Dubbo but it will do and it was in direct response to something that fell from the Commission and he said, well, there might be - I can't remember the numbers he used - ex number of employees who score 3 or 4 on their points and another person who's scoring .5 and it would clearly be justified. Well, he says he didn't say that - the transcript will show what he said - to rely only on the points. It would clearly be an appropriate course for Telstra to take in those circumstances.
PN4361
He may have tried to muddy the waters on it but the substance of what he was saying was that and why would anyone doubt it? One reason you'd doubt it is because Mr Bernays told that employee that his points wouldn't be used directly but, moreover, relying directly on the points it really misses the point in the sense that who did an analysis of how many incomplete jobs this employee had and therefore missed out on the points as against all of the other employees.
PN4362
Who compared the travelling time in peak hour down the main street of Dubbo for this employee as distinct from the others who weren't travelling at those times. Who gave any consideration in respect of his point 5 to the fact that his brother recently died. Who gave any consideration to the compliance with occupational health and safety rules in respect of this employee who may have been meticulous as against the others who were only concerned about raising their points because they were concerned that they might be selected for redundancy. Who gave any consideration to the extent to which employees within the team were working unauthorised overtime and so on. When all of that occurs in an environment where Bernays is told if you take an employee in Dubbo points will not be directly used to select him for redundancy. That's the first matter that I wanted to deal with.
PN4363
The second matter that I want to deal with is the question of what my friend says, well, it can all be tested in unfair dismissal proceedings. Well, maybe, maybe not, I don't know. I'm here seeking an exceptional matters order and the real question is this; does the Commission really have to wait until hardship is visited on people, that injustice is visited on them, that they are treated harshly by their employer before it affords them a remedy and the answer to that is clearly not.
PN4364
It is contemplated by the Act that the Commission has power to prevent harsh consequences by the very circumstances under which exceptional matters orders might be made. It is true there is a discretion. There is no issue that there must be a discretion as to whether the Commission makes an order but there is no imperative in the Act to wait before you test the injustice or the hardship by seeing whether it actually happens or not.
PN4365
THE COMMISSIONER: No, no, but you've got to form a view that the relevant hardship or injustice is there.
PN4366
MR REITANO: There's a number of ways of putting it but you combine just two things on that analysis; Mr Bernays told you you're not going to be sacked by use of these points directly and two months later, presumably after the Commission has handed down its decision, and let's add into the theory - - -
PN4367
THE COMMISSIONER: You're being optimistic with two months I might tell you.
PN4368
MR REITANO: - - - doesn't make an order and says, I don't really think there's any need to make an order, for whatever reason, and the employee out in Dubbo is dismissed. Then the Commission comes to hear the unfair dismissal case. Now, all you have to look at at this point, all you have to look at is the unjust or harsh consequences that might flow from not making an order and those circumstances speak injustice. You are told you can rely on my word. In fact, we will publish to the workforce Mr Bernays' transcript. You can rely on Mr Bernays' word that this will not be used directly to select you for redundancy. Now, where is the fairness, where is the justice in that when it comes to the employee being dismissed and running the unfair dismissal case in those circumstances.
PN4369
We have agreed with the three agreed issues. My friend spent a lot of time dealing with issues about whether Telstra is entitled to have a measure of productivity. We have cavilled with whether CC points is a measure of productivity or something else. There' no issue about that. We said it may be measuring other things but our order does not seek to, and as I think the Commission rightly appreciates, say that they cannot use the CC measure. As imperfect and inadequate as it is our order does not say they cannot use it and a great deal of m y friend's submissions were directed towards saying, well, there it is, it works.
PN4370
I have said what I needed to say at the outset about whether you can really examine it fairly at the moment but even putting that to one side the issue is not, as my friend sought to reduce it to, whether Telstra can have the productivity measure or not, it can do what it likes. What we are saying is that it should not be using this measure to determine people's futures having regard to the circumstances in which it has been introduced.
PN4371
Contrary to what my learned friend said you don't know and you don't have any idea, and he did this in a number of places and the perfect one is Mr Ross, you don't have any idea how this measure worked in respect of Mr Ross, you don't know whether Mr Ross is now taking shortcuts as Mr Costa either jokingly or otherwise suggested, you don't know whether Mr Ross is still fixing washing machines but working unauthorised time doing other things, you've no idea at all as to why Mr Ross' statistics might have improved.
PN4372
You do on the other hand have some idea as to why Mr Costa might all of a sudden after six years become such a hopeless employee because he dared to put on a statement in these proceedings. I'll come back to it in a moment but my friend says Mr Ross is a terrific illustration. Well, where is he and why didn't he go near the witness box and why weren't we able to test the evidence about Mr Ross and what he'd done to improve his points. The employee of Telstra presumably could have put a statement on.
PN4373
All you see from Telstra is managers. You don't have any employee, any communications technician come anywhere near the witness box and say, I like this measure. I think it's really good. It's been thoroughly explained to me. I completely understand it and when I'm terminated despite what Mr Bernays is about to say in his evidence, I won't complain about the unjust outcome. You get none of that and yet they are happy to put on hearsay either from what Mr Follett's told people or what Mr Ross told his manager, the indisputable and very honest Mr Agius. With respect, there is nothing before you that they choose to put that demonstrates any of the things they say about how in a practical way the measure is working.
PN4374
Can I then turn to Mr Costa and firstly can I say this, that you could not and would not in any circumstances make any findings against Mr Satroni and Mr Sparks as my learned friend invites you to. You have not had the opportunity to hear from them. It would be grossly unfair to them. It's a fundamental tenet, that where serious allegations of the kind that have been put, people should be given an opportunity to be heard and in paragraph 15.9 there are serious allegations levelled at both Mr Satroni and Mr Sparks. You asked me, Commissioner, in my address, some questions about what happens to you all.
PN4375
I can't remember precisely the question but I made a submission about Mr Costa being a living example of what happens if you complain. It's all set out in the submissions for you. Mr Costa came to the Commission against the background that his brother had died in December last year and that he'd suffered a work related injury and that he happened to be a union representative who was prepared to put on a statement in proceedings. There is no reason to make the extravagant and improper and I use the word deliberately, improper submission, that Mr Costa had taken sick leave when he wasn't entitled to and that's the submission that's made against him.
PN4376
Not even Mr Agius in fairness to him, not even Mr Agius was prepared to doubt that, his immediate supervisor. He had a medical certificate. He said he was on sick leave and I accepted it and the suggestion in the submissions otherwise is demonstrable evidence as to what happens if you put your hand up and you complain, nor is there any evidence and nor was it in any way corroborated by bring Mr Sparks along, once again, within the capacity of Telstra to do so, to say that he had a long lunch as my learned friend puts it with Mr Costa on the day in question.
PN4377
Indeed, all of the evidence about long lunch turns on you accepting Mr Agius' word as to what time he arrived when there was a record that was available to him, readily available, he could have told you there it is. I have it, that's the time you booked off. Costa says I booked off at quarter past 12. Agius, for his own purposes says it's 12 o'clock but we see nothing of the record that would have corroborated Agius' time and, secondly, relies on you accepting Agius' evidence as to what time Costa arrived, for my friend to get the hour and 20 minutes he wants.
PN4378
Once again, I should add, Mr Agius does not dispute in his evidence that if Mr Costa said I was going to get - I can't remember the word, stores, from Mr Sparks that that's what he was doing. Only my learned friend disputes that. The key participant who'd known Costa for very many years, doesn't dispute it. The submissions in respect of Costa should be utterly rejected and you will have to decide the issue. It would be grossly unfair to Mr Costa, in my submission, to allow these things to hang over Mr Costa's head in terms of the allegations that are made.
PN4379
The only wrongdoing, as my friend calls it in his submission, that Costa alleges against Agius is that he comes out to see him the night after he's had to prepare his statement in reply and tells Costa things are going to be hard for him now, or words to that effect. Now that's the only thing that Costa alleges and in my submission, you would accept it. Put aside anything else, it's an enormous co-incidence that he happened to go out and see him that day. It's an even more enormous co-incidence that when he's prepared to, when he's asked to prepare a note of the conversation he had, he doesn't even have any part of that conversation that's concerned with the purposes to why he is there, which was something that had nothing to do with the statement and something that had nothing to do with where Mr Costa was at the time.
PN4380
All of the conversation is about something else. In circumstances where he says, wrongly, as we later find out, that he'd been warned to keep his distance from Costa, he makes significant mistakes in his evidence. He could not have been rung by Bernays on the night of the 29th and told to prepare it. At the earliest it would be 3 May and probably within a couple of days after 3 May. Moreover, there is nothing in his evidence that would have supported significant departures that he makes in respect of, for example, he says on the one hand that he received an email about sick leave and yet when he gets in the evidence he said he never received, sorry, text message.
PN4381
Thirdly, my friend says, well, he conceded the same things that, you know, this goes all the way to the top and everyone knows but it just goes without saying what he was saying. You are a trouble maker and you will be targeted and everyone above me knows and yet he says in his evidence, well, I don't know what it really meant.
PN4382
THE COMMISSIONER: Mr Reitano, what do you say I should decide in relation to Mr Costa?
PN4383
MR REITANO: Well, serious allegations are put to Mr Costa, about Mr Costa, about his behaviour. There's no evidence of any of them. You would not be justified coming to any adverse finding against Mr Costa and we say the Commission should say so.
PN4384
THE COMMISSIONER: I see. You don't ask me to go any further.
PN4385
MR REITANO: Do you want to help me.
PN4386
THE COMMISSIONER: No, no but you've travelled into the area of intimidating a witness.
PN4387
MR REITANO: I see. Look, ultimately that's a matter for the Commission as to whether it needs to determine that - - -
PN4388
THE COMMISSIONER: I wouldn't in the sense that - - -
PN4389
MR REITANO: Mr Follett laughs again. I'm sorry to amuse him. I don't make the same types of allegations against Mr Agius. I don't sit here and say that Mr Agius took sick leave when he shouldn't have or that anything like that or that anything turns upon - - -
PN4390
THE COMMISSIONER: No, but you do say that it's the detriment of a member of the CEPU that they've given evidence in this case.
PN4391
MR REITANO: Yes.
PN4392
THE COMMISSIONER: And that's a matter than can be pursued elsewhere.
PN4393
MR REITANO: Elsewhere, yes. That's true, and it may be a matter that goes to the credit of Mr Agius respectively and Mr Costa but I don't say necessarily that the Commission needs - despite how much it might amuse Mr Follett, I don't say that the Commission needs to determine that issue.
PN4394
THE COMMISSIONER: All right, but you do invite me to make a finding as to whether or not Mr Costa was behaving dishonestly in his approach to his work and his sick leave.
PN4395
MR REITANO: Well, in terms of the submissions that are made, you say dishonestly, I'm content to pick that up but I think it's used - the word improperly is used in the submissions. Whether it's both - there's just no evidence about. It's ultimately that simple. There is no evidence that would justify such a finding and nor is there any evidence that would suggest in whatever form my friend wants to put it that he's untruthful that he forgets his own lies or that he forgets what he said, which is the two ways I think that it's been put.
PN4396
THE COMMISSIONER: Well, no it's only been put one way.
PN4397
MR REITANO: Sorry, originally put that way, struck out and put the other way, whichever way and I'll fasten on the second because that's the one it was ultimately put Mr Costa did the best he could. I mean people come to this Commission, as did other witnesses, Bernays, Bowman, people do the best the could, occasionally they get caught out. Take for example Aquis, caught out you know on whether he received the text message or not, not prepared to admit to the coincidence of him being there. But he did the best he could in the circumstances, obviously there was a serious allegation levelled at him about trying to intimidate a witness and he probably tried to protect himself. But to make the kind of outrageous submissions my friend makes against Mr Costa, it is just not justified. He did the best he could.
PN4398
One thing that my learned friend doesn't point out to you is, why is that after six years Mr Costa all of a sudden became such a hopeless employee? Maybe it had something to do with his brother's death. Maybe it had something to do with his injury at work. Those are both significant things that happened within the seven, not eight, months that proceeded his July review. You know, one doesn't know, but to suggest that a person of six years service all of a sudden, over night, became such a hopeless employee and always was, is just nonsense. To suggest that Mr Costa was in some way trying to cover his lack of performance, it is just a submission that should be rejected out of hand.
PN4399
Moreover, you only ultimately have a review in April which doesn't cast any light on the issue of Mr Costa's performance other than in respect of CC points and a review in July that may be in respect of June or May that is after all of the hullabaloo breaks out, you don't have any contemporaneous record of his performance in March or February or otherwise. It is a huge submission to make, in my submission, that Mr Costa was a poor performer who was trying to direct his attention from his performance. He was a union member, who had a legitimate concern about the introduction of CC points. In his conversation with Mr Agius, he told Mr Agius what he told the Commission and that is that people have got to stand up for these things. Some one has got to be heard about it. He as the union representative decided of his own free will that he would. He shouldn't be made to pay for it either by silly submissions that he is a poor performer, or that he abuses his sick leave or otherwise.
PN4400
Finally, can I just foot note a couple of submissions that my learned friend has made in his written submissions and I'll do this very quickly. My learned friend says in his written submissions that there was consultation, and this is at paragraph 5.2. He is a little bit careless with references particularly in the third dot point, but also in the second, they don't relate to anything to do with consultation and we have been able to check those. They do relate to the roll out of some pilot program, my friend shakes his head, well I read them I didn't see any reference to consultation. The Commission can ultimately decide it.
PN4401
They do relate to what was proposed in relation to the pilot program which took place, I think in Gippsland, and certainly in respect of all of the other references to consultation that he gives there is no reference, I went and saw Mr Bjork, I went and saw Mr Cooper, I went and saw Mr Murphy, Mr Absolom and so on. There is in the letter that he talks about annexed to CEPU3, Mr Murphy's statement, reference in paragraph four to Telstra telling Mr Absolom and one other person, we are going to implement this, and then there is a response dated 26 March which says we refer to that meeting between Mr Irons and others about the incentive program pilots. That's what the meeting was about and some things that the CEPU had raised during the course of that meeting.
PN4402
The next thing you find in the evidence in all of this extensive consultation is on the 30 May which is SM3 to the affidavit:
PN4403
We are writing to advise you that we have implemented and completed implementation of the whole thing throughout the regional service today.
PN4404
That's the extent of the consultation.
PN4405
What Telstra regards as consultation clearly is something that it is not. Consultation on my friend's submission, is we are going to do this, if you don't like it who cares. That's consultation on his submission. You will find nothing in any of the material that suggests that anyone from Telstra sat down with any staff member, but far less, any union official and said, this is what we are going to do. This is exactly what we are going to do. Here are the i's dotted, the t's crossed, we would like your input into it. We would like your consideration of it. We would like to provide this information to you for you to consider in a mature and sensible way and we would like you to come back and tell us what you think of it. You won't find any of that. To put a label on something, as my friend's submissions do, as consultation because you are handing out documents to people, or you are telling people about what you might do in the future, is hardly consultation in our submission.
PN4406
The only other matter that I need to footnote the submission with, my friend's written submission, I should have dealt with it earlier. The only other matter was in respect of Mr Costa and I did deal with the submission but I should particularly draw your attention to 15.1 in respect of the submission that it demonstrates what you do if you put your head above the parapet in Telstra.
PN4407
Finally, can I deal with one point that I made in chief that I think needs to be dealt with again. My friend deals with the specifics of the introduction of CC points in terms of the lack of consultation and the like and says, well there are all these discussions, it is all referred to in his written submissions which all come after, in our submission and there is a dispute between us about this, but they all come after the implementation that the whole CC points deal. It is important to understand that everything that we are talking about from that point on occurs with the background of the injustice involved in Telstra promising to consult which is contained in the certified agreement. That consequence can't later be undone by Telstra sitting down either in the Commission or elsewhere and purporting to provide us with either more documents or purporting to talk about the matter. That injustice overlays the whole process.
PN4408
Now as I say we don't come here and dispute, at all, the fact that Telstra can have a productivity measure and we haven't sought to dispute that. As I say we say it is awful and it is silly and it doesn't work properly and we make lots of criticisms of it and therefore we say it shouldn't be used for such a serious decision as terminating people's employment, but we don't deny the opportunity for them to have a productivity measure. But what we do say, and what is important to understand about the submissions we make in that respect, is that the whole process from the outset has an overlay of injustice about it if it is going to be used for termination, redundancy or performance plans.
PN4409
And nowhere can that more starkly be illustrated than if you look through all of the Telstra document that were shown to you and you can pick any one of them that outlines what this process is about, what this process will be used for, you will not find, you will not find a reference in any material that is given to employees or others, perhaps with the exception of last Friday's document which I am not as positive about this as I am with others, that this will be used, or may be used, your CC point score may be used for disciplinary action or maybe used to make you redundant. You just won't find it.
PN4410
And ultimately keeping it up your sleeve from you employees is what starkly illustrates the unjust consequences that may follow.
PN4411
THE COMMISSIONER: But they know about it don't they?
PN4412
MR REITANO: Well, do they?
PN4413
THE COMMISSIONER: Well they must if they are working unauthorised overtime to get their CC points up.
PN4414
MR REITANO: Those who know.
PN4415
THE COMMISSIONER: I see.
PN4416
MR REITANO: You just don't know. Probably one can assume this I think - - -
PN4417
THE COMMISSIONER: I put that as your argument, not as my conclusion.
PN4418
MR REITANO: I understand that. I wish. I suppose one could say any communication - well even then it is going to be hard. I was going to say anyone who has spoken to Mr Bernays would know, but even then I am not sure because it wasn't high on his list of priorities as I understood it, it was because I asked him about it. Certainly there would be employees out there who were told, for example, take Mr Aquis' SMS message, the pressure is on, we've really got to achieve the results, that's referred to in Mr Costa's statement, it is not denied. Anyone who saw that might have an inkling that there was some serious reason why they should be getting their points up but certainly I think it was Wilde or Searle, I can't remember which one.
PN4419
One of those two said that they knew it would be used for redundancy and the others, I think it was Searle who said he didn't know what it was going to be used for, as I recall. He knew it was used to lead him into performance management but he didn't know if it was going to be used in redundancy. Nor did he understand. But why wouldn't you put on a document, this is going to be used, when it comes to redundancy this will be used? Why would you keep it up your sleeve? What's the justice in that? Publish to the workforce Mr Bernays' evidence, or don't, but if it is going to be used and it's going to be directly used then people should know as a matter of justice. If it please the Commission.
PN4420
THE COMMISSIONER: Thank you. I hope I haven't caused you to lose your arrangement. Thank you for your assistance. I will reserve my decision and you can take it that that doesn't stop you from talking should you wish to.
PN4421
MR REITANO: I reserve my decision on that your Honour.
ADJOURNED INDEFINITELY [1.13pm]
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URL: http://www.austlii.edu.au/au/other/AIRCTrans/2004/4209.html