AG2004/8484, Transcript of Proceedings [2004] AIRCTrans 5098 (24 December 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 9490
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

AG2004/8484
AG2004/8485
AG2004/8486
AG2004/8487
AG2004/8489
AG2004/8490

APPLICATION TO TERMINATE
AGREEMENT (PUBLIC INTEREST)

Applications under section 170MH of the
Act by Telstra Corporation Limited to
terminate various agreements

MELBOURNE

2.52 PM, THURSDAY, 16 DECEMBER 2004

RETAIL SERVICES BUSINESS UNIT
ENTERPRISE AGREEMENT 2000

INFRASTRUCTURE SERVICES AND
WHOLESALE ENTERPRISE AGREEMENT
2000

TELSTRA ONAIR BUSINESS UNIT
ENTERPRISE AGREEMENT 2000

CORPORATE GROUP BUSINESS UNIT
ENTERPRISE AGREEMENT 2000

Applications by Telstra Corporation Limited

PN1

THE COMMISSIONER: I will firstly deal with matters 8490, 8489, 8487 and 8485, the applications to terminate the relevant Business Unit Enterprise Agreements 2000. Can I take appearances in that matter?

PN2

MR H. SKENE: I seek leave to appear on behalf of Telstra, the applicant in these proceedings.

PN3

MR N. BRETAG: I appear for the CEPU in this matter.

PN4

MR F. FARY: I appear on behalf of APESMA and I have also been asked to represent the POAV in this matter.

PN5

THE COMMISSIONER: Any objections to the application for leave?

PN6

MR BRETAG: The CEPU has no objection.

PN7

THE COMMISSIONER: Yes, Mr Skene?

PN8

MR SKENE: Thank you, Commissioner. These applications concern four agreements entered into in 2000. The applications are essentially by consent. The application - the agreements, rather, nominally expired on 21 December 2002. The parties to the agreements are the CEPU, APESMA, the POAV and the AMWU. Essentially, these applications are a housekeeping exercise, Commissioner. In each case the agreements have passed their nominal expiry date and further the agreements have been expressly superseded and replaced by new agreements between Telstra and the relevant unions.

PN9

In these circumstances the agreements have no ongoing actual effect although their legal effect might be a matter of some debate, hence while we are here. The new agreements, the 2002 agreements expressly contemplated Telstra would make these applications to terminate the agreements and provided further that the union parties to the agreements would consent. And this is a matter that was approved by a valid majority of employees prior to certification of the current agreements and hence we would submit to you that there is a clear expression of the views of the parties bound by the agreements and all persons bound by the agreements.

PN10

In my submission there are no public interest grounds that militate against the termination of the agreement that need concern you and you can be satisfied that termination of the agreements is not contrary to the public interests. The CEPU and APESMA have consented to the applications which give effect to the agreement under the 2002 agreements. That was done by correspondence from APESMA dated 30 November 2004 and correspondence from the CEPU dated 15 December and I might just hand up copies.

PN11

THE COMMISSIONER: Thank you.

PN12

MR SKENE: Commissioner, perhaps if I can have them marked for convenience.

PN13

THE COMMISSIONER: Yes.

EXHIBIT #TELSTRA1 LETTER FROM CEPU TO MR GERDTZ DATED 15 DECEMBER

EXHIBIT #TELSTRA2 LETTER FROM APESMA TO MR GERDTZ DATED 30 NOVEMBER

PN14

MR SKENE: While we have had no correspondence from the POAV we were informed this afternoon that their position was consistent with the position set out in the correspondence of APESMA and hence they also consent to the application. There has been no response to a letter by Telstra dated 21 October in relation to the applications from the AMWU. The AMWU hasn't appeared and we would seek to rely simply upon the clear expression of the consent of the unions in the 2002 agreements. The consent, Commissioner, for completeness, is in the following terms.

PN15

It is set out in fact - the relevant provision is set out in fact in TELSTRA1, the CEPU letter. This makes it clear that various agreements were superseded and replaced by - including those, the subject of the application, by the current agreements. That Telstra will apply to terminate any of the above agreements with effect from the date of certification and the unions will consent to any such application. There is an equivalent provision in each current certified agreement, Commissioner. Hence, Commissioner, there is no grounds before you indicating that there are any public interest grounds.

PN16

We would say that there aren't any and that you should be satisfied that the valid majority approval of the agreement is an appropriate expression of the views of the relevant employees. That in those circumstances the termination of the agreements is not contrary to the public interests and we would submit that you are bound, therefore, by section 170MH(3) to terminate the agreement.

PN17

THE COMMISSIONER: Yes, thanks, Mr Skene. Mr Bretag?

PN18

MR BRETAG: Commissioner, as my learned friend has already indicated, the CEPU consents to the termination of the agreements.

PN19

THE COMMISSIONER: Thank you. Mr Fary?

PN20

MR FARY: Thank you, Commissioner, APESMA also consents to the termination of these agreements as is indicated in exhibit TELSTRA2. The Association doesn't believe that it is necessary for this action to take place, however, it has indicated it doesn't believe that because the fact that the agreements have already been superseded and replaced by the 2002 agreements. However, in the interests of maintaining a constructive relationship with Telstra, it is prepared to agree to the termination. I would add that, speaking on behalf of the POAV, the POAV has a similar view.

PN21

THE COMMISSIONER: Telstra has made applications to terminate the following agreements, the Corporate Group Business Unit Enterprise Agreement 2000, the Telstra Onair Business Unit Enterprise Agreement 2000, the Infrastructure Services and Wholesale Enterprise Agreement 2000 and the Retail Services Business Unit Enterprise Agreement 2000. In proceedings today I have considered the views of the parties to the agreement and I note that the current agreement contains the consent of those parties to the action proposed by Telstra.

PN22

I have considered whether or not termination is contrary to the public interest and I have formed the view that it is not contrary to the public interest and accordingly I will terminate the agreements. The agreements will be terminated from today. I will now call on matters 8484 and 8486.

AG2004/8484
AG2004/8486

TELSTRA CORPORATION 1998/2000
ENTERPRISE AGREEMENT

TELSTRA CORPORATION CUSTOMER FIELD
WORKFORCE AGREEMENT 1998/2000

Applications by Telstra Corporation Limited

PN23

THE COMMISSIONER: Can I take appearances in those matters please - Telstra.

PN24

MR H. SKENE: I seek leave to appear in these matters on behalf of Telstra.

PN25

MR N. BRETAG: I appear for the CEPU in this matter.

PN26

MR T. VEENENDAAL: I appear for the Community and Public Sector Union.

PN27

MR G. FARY: I appear on behalf of APESMA.

PN28

THE COMMISSIONER: Yes?

PN29

MR VEENENDAAL: There is a question of leave to appear - - -

PN30

THE COMMISSIONER: Yes, I am sorry.

PN31

MR SKENE: - - - Commissioner.

PN32

THE COMMISSIONER: Yes, is there any objections to the application for leave?

PN33

MR VEENENDAAL: Yes, Commissioner.

PN34

THE COMMISSIONER: Yes, Mr Skene?

PN35

MR SKENE: Thank you, Commissioner, well, the circumstances in which the Commission can grant leave in circumstances where there is not consent of the parties is set out in sections 42(3)(a) or (3)(b) - (3)(b) or (3)(c), rather. This application is pressed under section 42(3)(b) and that is that the application is attended by special circumstances. I find myself in a slightly difficult position because, one, you would be aware that this application is contested, however, the basis upon which it is contested on public interests grounds is not clear. The Commission would be aware - - -

PN36

THE COMMISSIONER: What are the special circumstances then?

PN37

MR SKENE: Well, Commissioner, I think that in the circumstances where leave is opposed I can anticipate that my friend will say that this application is a straight forward one. In support of my submission that there are special circumstances I am sure the Commission will be aware that the question of public interest, how it is to be construed and the private interests and the extent to which private interests can be taken into account by the Commission is vexed one, most recently, I think, before a Full Bench of the Commission earlier this week in relation to a decision of Commissioner Whelan in the KBR matters.

PN38

Now, here we have two competing public interest considerations, in my submission. What I anticipate the CPSU is going to advance is a public interest ground is some ongoing residual application of the agreement and it will be put by Telstra that doesn't give rise to the public interest within the proper construction of section 170MH. Now, as I have indicated, that is a vexed question and it is one where, with respect, some legal representation may be of assistance to the Commission and certainly is necessary in order for Telstra to fully articulate its position.

PN39

Further, Commissioner, we have a second public interest consideration which is the provisions under the terms of the current enterprise agreements and what effect is to be given to those. A union, potentially at least, asserting that it is not bound by that agreement or that that consent is ineffective, that will raise difficult interpretations - questions of the interpretation of the instruments and of itself would also give rise to special circumstances, in my submission. So, in those circumstances, Commissioner, I can do no more at this stage than apprehend what will be put by the CPSU.

PN40

Perhaps the best course is to hear what the CPSU wishes to advance in opposition to the granting of leave in light of the points that I have made and I can deal with it more fully. However, in my submission, these cases, where contested, are not straightforward. Here, we don't know the true scope of the contest at this stage, and in those circumstances, certainly leave ought not be refused. If nothing else the question might be reserved until the CPSU has properly articulated its claim. If that can be done now, I would be happy to address you further in due course.

PN41

THE COMMISSIONER: Thanks, Mr Skene. Yes, Mr Veenendaal?

PN42

MR VEENENDAAL: Commissioner, we note that this is the first hearing of the matter. At this stage the position of the CPSU has indicated informally before the Commission is that we are not in a position to consent to the application. I would indicate to the Commissioner that we are prepared to consider our position. We are obviously not in the position to reconsider today, however, I am prepared to indicate to the Commission that we may be in a position next year to come back to - and will be in a position at that time to indicate whether we are able to consent to the applications before the Commission.

PN43

Given that this is the first hearing, if Telstra is seeking to press its application today for determination, it would be our submission that there are complex questions that may arise from our side and we would not be in a position today to address the matters of public interest in respect of these applications. On that basis, our submission is, that the matter should be set down for directions. We are quite happy to have the Commission make some directions today for the filing and serving of submissions and evidence as is necessary.

PN44

In light of that, we see this proceeding today, being more procedural in nature, Commissioner and as a result we don't really see the need for Telstra to need to be represented by outside bodies. I note that Mr Gerdtz is here and he can adequately represent the company as he has on many other occasions before the Commission. Thank you, Commissioner.

PN45

THE COMMISSIONER: Yes, thanks, Mr Veenendaal. Mr Skene, I will hear you on the application for the adjournment made by the CPSU.

PN46

MR SKENE: Commissioner, this is an application that was made by Telstra on 22 November, so here we are, some 15 days later, perhaps even longer than that, 20 days later. Times passes us by at this time of the year, I accept that, but the application was first brought to the attention of the union by correspondence from Telstra dated 21 October 2004 and perhaps if I could hand up a copy of that correspondence.

EXHIBIT #TELSTRA1 CORRESPONDENCE FROM TELSTRA DATED 21/10/2004

PN47

MR SKENE: Commissioner, you will note that that correspondence addressed to Mr Veenendaal - and I can indicate equivalent correspondence was sent to the other unions. This correspondence sent to Mr Veenendaal sets out the intention of Telstra to apply to terminate a range of enterprise agreements - the first two dot points that are before you in these applications. Telstra has set out there its position about the consent from the current enterprise agreements - 2002 enterprise agreements. It indicates its position is that those agreements now regulate the terms and conditions of employment of all relevant employees.

PN48

That the termination of the agreements should not cause any industrial action and that the termination of the agreements is consistent with the statutory scheme for the making of agreements. So, essentially, Commissioner, it gives full advance notice of the grounds that were to be - that are to be advanced before you in these applications. Telstra requested a response by 29 October 2004. Now, as you would be aware from the previous applications, the CEPU, APESMA and now the POAV, although they are not party to these two '98 agreements, have consented to those applications.

PN49

The CPSU, however, responded in the terms of a letter dated 11 November 2004 which I might also hand up.

EXHIBIT #TELSTRA2 LETTER TO MR GERDTZ FROM MR VEENENDAAL DATED 11/11/2004

PN50

MR SKENE: Now, you will see, Commissioner, that that correspondence deals with - has two headings there. The first refers to the SO minimum rates, that is the senior officers agreement, and we are not concerned by that in these applications, however, the other agreement's heading is what concerns you today. And the CPSU indicates that they seek consent - and they say they are happy - they no doubt request for consent and they say they are happy to discuss it. They say they are unable to consent to the termination at this time. Now, following that correspondence, Commissioner, the application for determination of the agreements was filed and Commissioner, you will have noted that that application sets out grounds.

PN51

Those applications were served on each of the relevant union including the CPSU that day. The grounds of the application, again, make clear the position that the applications are made in accordance with the consent set out in the 2002 agreements. Those are agreements that the CPSU is party to and which were certified in the Commission in December 2002. The relevant applications again restate these grounds making it clear that the '98 agreements have been superseded and replaced, first by a set of agreements in 2000 and then by the current agreements in 2002, agreements to which the CPSU is party.

PN52

It makes it clear that, except for employees who are covered by AWAs, the 2002 agreements regulate the employment of those people and it further sets out the intention to apply to terminate the agreement and that Telstra notes the consent of the unions to such applications. There was silence from the CPSU on my instructions until a discussion on Tuesday of this week and the CPSU maintained that it would not consent to the applications. It indicated only that it was concerned that the agreements had some ongoing application and it identified an area of the business, TCW, as a potential area of that ongoing application.

PN53

Importantly in that discussion no grounds in relation to the public interest were raised. Now, in terms of the request for an adjournment, Commissioner, we note that there are two applications before you. Currently the objection raised by the CPSU only relates to the Telstra Corporation Enterprise Agreement 1998-2000. That objection does not touch upon the Customer Field Workforce Agreement.

PN54

THE COMMISSIONER: Well, I will just clear that up. Mr Veenendaal, is there an objection in relation to the Field Workforce Agreement?

PN55

MR VEENENDAAL: Yes, Commissioner.

PN56

THE COMMISSIONER: There is, thank you.

PN57

MR SKENE: Yes. These are objections that are merely put and not articulated, Commissioner, and in circumstances where the union has been on notice of the application since the 26th - 21 October, rather. The application was made on 26 November. In my submission, it is somewhat disingenuous for the union to arrive and simply say, look, we haven't been able to consider our position. We don't have anything to put; we are not sure what our objections really are. We can't explain the public interest and can we have a timetable for some discussions. Now, they came here and they put - - -

PN58

THE COMMISSIONER: Is there any detriment to your client by adjourning them?

PN59

MR SKENE: Commissioner, we would be prepared to permit the CPSU some time to consider its position in relation to the Telstra Corporation Enterprise Agreement 1998-2000 but we can't see any objection that has been raised that touches upon the application concerning the Customer Field Workforce Agreement. Nothing has been articulated about that and we would oppose that objection.

PN60

THE COMMISSIONER: Thank you, Mr Skene. I appreciate your answer. Will you answer my question?

PN61

MR SKENE: Yes.

PN62

THE COMMISSIONER: Is there any prejudice to your client if these matters are adjourned?

PN63

MR SKENE: Excuse me, Commissioner, I understood you said objection not prejudice. No, Commissioner, there is no prejudice but that is not the only consideration that should guide you on whether or not to exercise an adjournment.

PN64

THE COMMISSIONER: I understand, thank you. Now, I didn't ask the other two unions what their attitude was on the adjournment, I am sorry. Mr Bretag, do you wish to make any submissions at all on the application for adjournment?

PN65

MR BRETAG: Absolutely none, your Honour.

PN66

THE COMMISSIONER: Thank you. Mr Fary, do you wish to make any submissions?

PN67

MR FARY: Thank you, Commissioner. We don't see any great urgency surrounding this matter and we note that the relevant clause in the 2002-2005 agreement, clause 21.2, states that:

PN68

The parties agree that Telstra will apply for terminating the above agreements with effect from the date of certification of this agreement and that the unions will consent to any such application.

PN69

So, that clause envisages that the effect of the date of the termination of the agreements would in fact be the date of the commencement of the 2002 agreement. In view of that, and in view of the fact that we don't see that there is any great urgency that attaches to it, we would have no objection at all to an adjournment of the matter.

PN70

THE COMMISSIONER: All right, thanks very much. Yes, Mr Skene?

PN71

MR SKENE: Oh, no, Commissioner.

PN72

THE COMMISSIONER: Very well.

PN73

MR VEENENDAAL: Perhaps I could make one small submission, Commissioner in response to Mr Skene. And the thing I principally object to is the inference that we have been put on notice since 21 October 2004. And I think Mr Skene then infers that somehow we should be better prepared today to run a public interest argument in respect to the agreements to which the CPSU is a party. I don't think that is entirely a correct representation of the position, Commissioner. I have got a letter marked T1 which is a letter seeking CPSUs consent to terminate.

PN74

It is not an application. It doesn't foreshadow an application. It does mention the public interest somewhere but I wouldn't, respectfully suggest, that that is a correct representation of exhibit T1. It is a letter seeking consent to which the CPSU responded with correspondence which is T2 on 11 November indicating we were happy to have discussions and subsequent to that date some discussions have occurred, Commissioner. I think there is no urgency in the matter being forced today and I would urge the Commission to grant an adjournment.

PN75

THE COMMISSIONER: All right, thank you. I am going to direct that the CPSU advise Telstra as soon as possible, but in any event, no later than 21 January, as to whether or not it consents to the termination of either or both of the agreements. And in the event that it consents to the termination of those agreements they will be listed very shortly thereafter to deal with the consent applications. In the event that they are not consented to I will issue directions for the future conduct of the matter. Yes, Mr Skene?

PN76

MR SKENE: Commissioner, in terms of the timetable that might be set, we don't want to find ourselves in a position where we run into the next bargaining round, necessarily, which is due to commence in March. I am just wondering whether it might be possible to have some discussions about an appropriate timetable now that might see Telstra filing its materials in advance of the application, perhaps, around that time. I appreciate that there is work that might be done there that might be wasted should the CPSU ultimately consent. But I think if - my client is concerned that we are going to have a lot on our plate next year and that as a result we would like to deal with these applications well in advance, sir - introduction of bargaining.

PN77

THE COMMISSIONER: Yes, thanks, Mr Skene. Well, I don't constrain you at all preparing material.

PN78

MR SKENE: Indeed.

PN79

THE COMMISSIONER: Thank you, the matter is adjourned.

ADJOURNED INDEFINITELY [3.16pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #TELSTRA1 LETTER FROM CEPU TO MR GERDTZ DATED 15 DECEMBER PN14
EXHIBIT #TELSTRA2 LETTER FROM APESMA TO MR GERDTZ DATED 30 NOVEMBER PN14
EXHIBIT #TELSTRA1 CORRESPONDENCE FROM TELSTRA DATED 21/10/2004 PN47
EXHIBIT #TELSTRA2 LETTER TO MR GERDTZ FROM MR VEENENDAAL DATED 11/11/2004 PN50