C2004/1602, Transcript of Proceedings [2004] AIRCTrans 4599 (29 November 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N 9099
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2004/1602, 1603, 6247,
6370, 6371, 6372, 6374
and 6375

TELSTRA CORPORATION GENERAL
CONDITIONS AWARD 2001

TELSTRA/CPSU AWARD 2001

TELSTRA/AMWU AWARD 2001

TELSTRA/CEPU TECHNICAL AND
TRADES STAFF (SALARIES AND
SPECIFIC CONDITIONS OF
EMPLOYMENT) AWARD 2001

TELSTRA/CEPU LINES AND GENERAL
(SALARIES AND SPECIFIC CONDITIONS
OF EMPLOYMENT) AWARD 2001

TELSTRA/APESMA AWARD 2001

Applications under section 113 of the Act
by the Community and Public Sector Union
-PSU Group, Victorian Region and another
to vary the above awards

MELBOURNE

9.31 AM, THURSDAY, 18 NOVEMBER 2004

Continued from 25.10.04

PN200

THE COMMISSIONER: Any change in appearances?

PN201

MS COOPER: Yes, if the Commission pleases. I appear for the CPSU.

PN202

THE COMMISSIONER: Thank you, Ms Cooper. Right. Any discussion about the programming of this matter?

PN203

MS KENNEDY: Yes, thank you, Commissioner.

PN204

THE COMMISSIONER: Yes, Ms Kennedy.

PN205

MS KENNEDY: As has been proposed the last time this matter was before you we have not met with the unions involved in this application. Before we proceed I would just like to ask my friends if anyone appears here on behalf of APESMA and the AMWU.

PN206

THE COMMISSIONER: Silence was the firm reply.

PN207

MS KENNEDY: So there is no appearance on behalf of APESMA and the - - -

PN208

THE COMMISSIONER: Yes.

PN209

MS KENNEDY: But they were notified of today's listing. We met with the CEPU, APESMA and the CPSU and also spoke with the AMWU since the last time this matter was before you, Commissioner. And the AMWU have advised us that they would follow the other unions' lead in this matter. So I can only assume that that is their approach for today.

PN210

THE COMMISSIONER: Yes.

PN211

MS KENNEDY: Should I proceed?

PN212

THE COMMISSIONER: Yes, please.

PN213

MS KENNEDY: At this stage the parties have not reached an agreement in relation to the rate of the meal allowances, the country meal allowance and the meal allowance. And as we foreshadowed last time we seek to have this matter programmed in two parts. Firstly, conciliation with the assistance of the Commission and secondly, if necessary, but we would like these directions to be made. Directions for the filing of materials.

PN214

Obviously there is always the prospect that an agreement could be reached in conciliation and there would not be a need for arbitration but - - -

PN215

THE COMMISSIONER: Yes.

PN216

MS KENNEDY: - - - I think it is necessary in these circumstances given the time pressures that the directions be set. We do see there would be some considerable benefit engaging the Commission further in this process and we would be most grateful for the Commission's assistance in conciliation. Telstra would propose to lead some evidence in support of the application which is directed principally,as I think I foreshadowed previously, at the prevalence of the meal and country meal allowance in Telstra and the circumstances in which it is paid with some evidence in relation to similar - payment of similar allowances in Telstra's competitors. But to a large extent Telstra's application will depend on legal submission and argument.

PN217

THE COMMISSIONER: Sorry, it will depend upon legal submission?

PN218

MS KENNEDY: Legal submission and argument.

PN219

THE COMMISSIONER: What are the legal points?

PN220

MS KENNEDY: The legal points will go principally to matters of determining the safety net.

PN221

THE COMMISSIONER: I see.

PN222

MS KENNEDY: And to Telstra's competitive disadvantage in the way that its current safety net is set.

PN223

THE COMMISSIONER: That is a discretionary point isn't it? It is not a legal point?

PN224

MS KENNEDY: It is not a legal point, no.

PN225

THE COMMISSIONER: No.

PN226

MS KENNEDY: But there will be - - -

PN227

THE COMMISSIONER: But the safety net is the jurisdictional point is it?

PN228

MS KENNEDY: Yes. I can give you a brief summary of the sort of evidence that Telstra would intend to lead.

PN229

THE COMMISSIONER: No. No. I think I understand where you - the sort of point that you will be making. That you say your award is out of kilter in effect.

PN230

MS KENNEDY: That is right. Yes.

PN231

THE COMMISSIONER: But that is a discretionary decision. But the jurisdictional decision is you say to the extent that it is out of kilter it cannot be a safety net.

PN232

MS KENNEDY: That is right.

PN233

THE COMMISSIONER: Yes.

PN234

MS KENNEDY: I assume given the matter has been listed today that the President has referred it to you to deal with given our submission last time.

PN235

THE COMMISSIONER: I think that is right. We haven't sent you a copy of this?

PN236

MS KENNEDY: No, you haven't, Commissioner.

PN237

THE COMMISSIONER: In these applications the President decided on 1 November:

PN238

In these applications Telstra Corporation Limited has applied to vary the above awards to reduce the meal allowance pursuant to principle 10 of the statement of principles in the May 2004 safety net review. I have considered whether these applications should be dealt with by a Full Bench. I have decided they should continue to be dealt with by Commissioner Smith.

PN239

MS KENNEDY: Thank you, Commissioner. As I proposed last time I gave a sort of timetable, indicative timetable, for dealing with this matter. That timetable was that we would file and serve our evidence in outline of submissions on or before 26 November. That would probably see there being some conciliation next week with the Commission's assistance.

PN240

THE COMMISSIONER: Yes.

PN241

MS KENNEDY: The unions to file and serve their evidence in an outline of submissions in reply on or before 10 December. The matter to be listed for hearing at the convenience of the Commission in December. So that is a proposal for a timetable.

PN242

THE COMMISSIONER: Thank you.

PN243

MS KENNEDY: Unfortunately that timetable has not been agreed with the other parties to this application but it is - it is important that I make it clear that it is Telstra's preference that this matter gets dealt with expeditiously. As you would be aware there is likely to be a round of enterprise bargaining of some sort at least in the beginning of March next year so it is Telstra's objective to have this matter heard and determined before that commences.

PN244

THE COMMISSIONER: Yes.

PN245

MS KENNEDY: So I have got no further submissions, Commissioner, at this stage.

PN246

THE COMMISSIONER: Thanks, Ms Kennedy. Mr Bretag?

PN247

MR BRETAG: Thank you, Commissioner. Commissioner, we obviously would like to take opportunity with Telstra to further discuss this matter in an attempt to reach a negotiated outcome. I do not have any objections to the timetable as proposed by Telstra. Just with that - just indicating to you that we, outside the Commission if you like, I would like to also have some further discussions with Telstra which I am quite sure they are prepared to do. But other than that we have got no objection to those - to that timetable.

PN248

THE COMMISSIONER: Thank you. Ms Cooper?

PN249

MS COOPER: Thank you, Commissioner. I will just confirm that we met with Telstra on 15 November. While no agreement has been reached we agree that further assistance of the Commission in conciliation would be valuable to the parties. In relation to the timetable the CPSU cannot properly prepare its case in the timetable that Telstra has proposed. As the Commission would appreciate the decision on this case will have significant ramifications potentially for other awards in the system as it is an application to reduce the safety net.

PN250

And so from our perspective it is absolutely crucial that a thorough case be presented. From our perspective that will involve a significant evidence gathering exercise looking into the history of the award and why the rates are what they are - at the rate they are now. It will also involve looking at evidence in relation to the other - - -

PN251

THE COMMISSIONER: Telstra may have already done that work for you. They can give you their version.

PN252

MS COOPER: Well, that is exactly right, Commissioner, their version. With all due respect to Telstra our version and their version do not always coincide.

PN253

THE COMMISSIONER: That is going to be exciting if there is disagreement on facts isn't it?

PN254

MS COOPER: Well, there may be - there may be some nuances that are led - - -

PN255

THE COMMISSIONER: Yes.

PN256

MS COOPER: - - - that may lead to different views and different minds and different perspectives. In addition there are other awards which we believe Telstra will wish to make comparisons with - which Telstra will wish to make comparisons. So again we would need to look at the history of those awards and why those levels are at the levels they are at as well. Also the CPSU has requested the assistance of the ACTU in this matter and the intervention of the ACTU due to the significance of the case.

PN257

Now the ACTU are currently considering that request. We understand that a decision will be made shortly and the Commission will be advised of that decision as soon as we know as well. We have also asked the ACTU to co-ordinate a meeting of the unions involved. There are four unions involved here so there is a significant degree of co-ordination which I suggest is required for all the presentation of the parties' cases. And, again, these will involve more time than the potentially three weeks, three to four weeks, that Telstra is advancing in their proposed timetable.

PN258

Can I also say that at the moment employees are currently covered by an enterprise agreement. That enterprise agreement does not expire until June next year. So there is no practical business impact for Telstra of any delay or lengthy issue to weigh in this matter. In those circumstances - - -

PN259

THE COMMISSIONER: Well, there are two issues aren't there? Firstly, you have probably got a commitment under your agreement to begin bargaining three months prior to the expiration. So - - -

PN260

MS COOPER: That is right.

PN261

THE COMMISSIONER: - - - you ought to know on what basis you are bargaining. And, secondly, you have got applications before me to increase the rates so you ought to know on what basis you are bargaining depending upon the outcome of the case.

PN262

MS COOPER: Well, that application to increase is agreed not to come into effect until June 2005 anyway. But the timetable that we are proposing is one that provides a further Commission assisted conciliation in perhaps November, but ideally in December, given even those timetables are fairly tight at the moment. And with the parties providing, perhaps Telstra providing their submissions before Christmas or over January if they are so far advanced in the preparation of their case, with the union response in February and a hearing date in March.

PN263

That would, depending on of course the Commission's timetable in respect of handing down a decision, not impact adversely on the negotiations for a new enterprise agreement. In addition the meal allowance could be a relative or minor part of this area in any negotiations. And even if there was a week or two's delay or even a month's delay, depending on whether the negotiations are starting March, we do not think would impact adversely - - -

PN264

THE COMMISSIONER: There are bigger things between you are there?

PN265

MS COOPER: Pardon, Commissioner?

PN266

THE COMMISSIONER: There are bigger things between you?

PN267

MS COOPER: Yes. That is correct, Commissioner. So such a timetable in our submission is necessary to give all the parties the time to properly present a case before the Commission. If the Commission pleases.

PN268

THE COMMISSIONER: All right. Ms Kennedy, do you wish to respond at all?

PN269

MS KENNEDY: I do not think it is necessary that I respond, Commissioner. I am happy for you to deal with the submissions.

PN270

THE COMMISSIONER: All right. Thank you. What I will do is I will adjourn into conference to set a timetable with the parties.

SHORT ADJOURNMENT [9.42am]

RESUMED [9.53am]

PN271

THE COMMISSIONER: I have conferred with the parties and some tentative dates have been set for the progress of the matter. However, in the first instance the Commission will in accordance with the Act seek to conciliate the issue between the parties. And for that purpose a conference will be convened in the Commission at 10 o'clock on 2 December. The matter is adjourned into conference until that date.

ADJOURNED UNTIL THURSDAY, 2 DECEMBER 2004 [9.54am]