C2004/5633, Transcript of Proceedings [2005] AIRCTrans 1351 (22 June 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11842-1

COMMISSIONER SPENCER

C2004/5633

TELSTRA CORPORATION LIMITED
AND
DEPARTMENT OF INDUSTRIAL RELATIONS
OH&S Review Authority
(C2004/5633)

BRISBANE

1.34PM, WEDNESDAY, 08 JUNE 2005

PN1

THE COMMISSIONER: Thank you. I will confirm appearances again on the record. Thank you.

PN2

MR M SMITH: I am a solicitor with Sparke Helmore Lawyers.

PN3

MR M CURRAN: I am a solicitor with Dibbs Barker Gosling for the respondent and also for Comcare.

PN4

MR B MARKLEW: I am from the CPSU representing members of the Community and Public Sector Union.

PN5

MS J GARRETT: I am from Slater and Gordon and have been instructed to appear on behalf of the CEPU, Communications Division, and I seek leave to appear to do so. I also at this time should make a formal application to intervene in the proceedings because I don't think the CEPU has been represented here before.

PN6

THE COMMISSIONER: No. All right. Well, subject to the notice that we have in relation to the substantive matter of these proceedings, firstly, leave was granted in previous proceedings obviously for Mr Smith, I think, to appear and other parties representing Comcare as well at that particular time so I don't think there is an issue with the leave for Ms Garrett. Would that be correct?

PN7

MR SMITH: As a legal practitioner, no.

PN8

THE COMMISSIONER: No. And in terms of her intervention and given the substances that I am on notice for today, is there any, at this stage, opposition to her intervention? And I haven't heard her on that at this stage but, are you foreshadowed? Do we need have any foreshadowing of that on the basis?

PN9

MR SMITH: Yes. The difficulty is the right that was granted in the CPSU at first instance was a limited right, in terms of making submissions and the merits of the case as I understand it. It certainly went no further than that. If it were the case that that was all that the CEPU were to be seeking today, we wouldn't object to them being heard to that extent, in terms of what they are seeking and the orders that they may well be seeking we would be objecting to those.

PN10

THE COMMISSIONER: All right. Well, thank you for bringing to my attention the limited right for the CPSU and on that basis, so that all parties can respond, I might hear Ms Garrett as to what the basis of your intervention is.

PN11

MS GARRETT: Well, we have a number of members at the site in question by also the set of circumstances of the site in question affects 4 to 5 hundred members across Queensland. On that basis, we are here to play a role and - - -

PN12

THE COMMISSIONER: Represent your interests.

PN13

MR SMITH: Yes, to represent their interests. And we understand, I mean, we will be supporting the position of the CPSU who has obviously had carriage of this matter on behalf of the union membership.

PN14

THE COMMISSIONER: All right. Well, on that basis, are you aware that as I understand it, the proceedings this afternoon are seeking an order to revoke the improvement notices. That's correct.

PN15

MR SMITH: Yes, that's so.

PN16

THE COMMISSIONER: Are you aware of that? Is there anything further to your intervention, are you objecting to that particular order or- - -?

PN17

MS GARRETT: No, we are not objecting to that particular order. We found out this morning obviously, we found out this morning that that consent had been reached. We, my client and as I understand the CPSU and perhaps my friend would elaborate on that further, would like to have access to the information upon which the consent order was reached or the proposed consent orders were reached. We understand the terms of the consent order referred to a range of information that Telstra has provided which has alleviated concerns. We understand that material relating to this or all the material relating to this matter to date has been provided to at least the CPSU and we would be supporting the CPSU in seeking at least access to that information. We didn't anticipate there would be a problem with that but my friend just suggested just prior to the hearing commencing that there may be a problem with us having access to that information.

PN18

THE COMMISSIONER: All right. Well, having put those submissions on the record it might be relevant to hear from you, Mr Smith, in relation to- - -

PN19

MR SMITH: Thank you, Commissioner.

PN20

THE COMMISSIONER: Firstly, I suppose we can put aside the intervention argument for one moment until I hear from the substance of the proceedings this afternoon and where the land lies in relation to those.

PN21

MR SMITH: Commissioner, it has been difficult to prepare for this, this afternoon because we only got put on notice of the applications that were being brought a very short while ago, a matter of an hour or so. Quite frankly - - -

PN22

THE COMMISSIONER: Is that from the Commission?

PN23

MR SMITH: No, this is from the CEPU and the CPSU.

PN24

THE COMMISSIONER: Yes.

PN25

MR SMITH: Our client was contacted, I believe this morning, around about 11 or 11.30. I believe I heard about it at about 12.30, we found out about it.

PN26

THE COMMISSIONER: Right.

PN27

MR SMITH: The reason why I referred back to the limited right to be heard that had been granted to the CPSU at first instance is because all that right entitles them to do is to be heard to make submissions on the merits based on the evidence that came out of the proceedings. The material that has been referred to and then sought to be looked at by both the unions is confidential material that was exchanged as between the two primary parties in this matter with a view to reaching settlement of the proceedings. It is not public documentation. It is not material that has been tendered as exhibits in this proceeding. What we would say is that the question to be asked is, in the normal event, would the CEPU and the CPSU be entitled to gain access to those documents bar the coming exhibits in public hearing. We say they don't, they wouldn't have that implied and they haven't become public exhibits in this hearing. And accordingly, what they are effectively seeking to do is obtain a direction from the Commission that commercial and industrially sensitive documents be disclosed to them for what is yet an unknown and unclear interest.

PN28

It is not clear from our perspective why they, in fact, want those documents. It also needs to be borne in mind that at the end of the day the question about whether there is compliance with the Act and the regulations rests with the regulator which is Comcare in these proceedings. It is not up to the unions to determine whether or not there is compliance with the Act and the regulations. So frankly, we don't see what value can be added to these proceedings by an order being made with those documents being disclosed.

PN29

THE COMMISSIONER: Well, as I understand it, these proceedings were initiated and agitated on the basis of the improvement notices that were issued.

PN30

MR SMITH: Yes.

PN31

THE COMMISSIONER: The initial proceedings related to jurisdiction, jurisdiction was established but there was some commentary made in that particular decision about pertinent questions and documents that would be - it was assumed that the Commission would assess if the appeal proceeded. As I understand it, in terms of the foreshadowing of the hearing this afternoon, that the details of the improvement notices and those particular issues between the parties, that being the party that filed and lodged the improvement notice against the party, being Telstra. Those particular issues between the parties via the presentation of certain documents that have not been named or in fact specifically referred to before the Commission, have in fact and pursuant to lengthy discussions in terms of the updates that have been provided to my associate, have in fact resolved those particular issues. Is that the case?

PN32

MR SMITH: Yes. That's so, Commissioner.

PN33

THE COMMISSIONER: So in fact in terms of the proceedings before the Commission, the proceedings this afternoon are purely to close this particular matter.

PN34

MR SMITH: That is so and that points to another problem. How can, I suppose, a direction be made in a proceeding which is about to end? If the orders are made as sought, the proceedings end. There is no more appeal.

PN35

THE COMMISSIONER: Well, I will certainly hear from the other parties in relation to this before, Mr Smith - I am not sure whether it's you or in fact Mr Curran that wants to specifically refer to the provisions in which the order is sought. I know that it was generally referred to as 48 and in fact going to 6, I think.

PN36

MR SMITH: Yes, section 48 subsection 6 is the provision of the Act under which we would be seeking.

PN37

THE COMMISSIONER: All right. So 48(1)(f)(a), I am proposing that is specifically first of all the initial provision in which to give any power to revoke or bearing an infringement notice leading to, in fact, 48(2)(b). So it is under section 46, that an employer to which - sorry 46(2)(b) may not be relevant. It is the reference to the prohibition notice that causes me concern there. You say it's 48?

PN38

MR SMITH: 48(6). The revocation isn't being made by Comcare. We are seeking that the revocation be made by the reviewing authority which is this Commission.

PN39

THE COMMISSIONER: On notice of the parties.

PN40

MR SMITH: That's - if push came to - - -

PN41

THE COMMISSIONER: We just might go off the record there for one moment.

OFF THE RECORD

PN42

MR SMITH: If it is the case that the CEPU and the CPSU were seeking beyond that limited right of appearance be heard and saying that accordingly the document should be disclosed to them. Because of the limited timeframe in which any of the parties really have had to prepare, if there is any doubt in the Commission's mind, respectfully, regarding the issue - - -

PN43

THE COMMISSIONER: You would want to address that issue.

PN44

MR SMITH: We would want to address that in written submissions and perhaps take some time to consider our position. It probably isn't enough for us just to on the hop argue these sorts of issues.

PN45

THE COMMISSIONER: Well, I understand on that particular issue there hasn't been any discussions. The unions haven't had the opportunity to, in fact, be informed as well in relation to the nature of the documentation that has resolved this particular issue. Is that correct? So it may be, I understand that in term of procedural fairness, in terms of your protecting your client in relation to a potential direction to provide that particular documentation. I know in the original proceedings there was some submissions made regarding potential sensitivity of some of the documentation. So I understand your position that you are foreshadowing this afternoon in relation to that additional element.

PN46

MR SMITH: Yes.

PN47

THE COMMISSIONER: All right. However, would that particular element in your mind, in your submission, preclude the issuing of the orders this afternoon? It would in fact finalise the matter before the Commission.

PN48

MR SMITH: It would finalise the matter.

PN49

THE COMMISSIONER: So I am not sure how the parties would then reopen proceedings to be heard in relation to any direction of documents.

PN50

MR SMITH: That is the difficulty. I can't tell you in all honesty, Commissioner. You could make the order today and then they could seek validly, at law to have a direction made when the proceedings as I understand them would be extinguished and ended, and it would have to be by way of a reopening process, which, of course, has its own hurdles to leap across as well. That's why if it is going to be a concerned push, we think that perhaps the best way to deal with it would be by written submissions and perhaps further argument before the Commission when the two parties to the proceeding and the potential parties to the proceedings have had an opportunity to consider their positions in detail. But I also say, perhaps it can be circumvented to the extent that I do have instructions that my client would be willing to provide a briefing to the CEPU and the CPSU regarding what transpired during the settlement discussions. If that would be sufficient and would sufficiently meet their purposes or their interest. So I raise that as a possibility as well.

PN51

THE COMMISSIONER: All right. Thank you, Mr Smith. Mr Curran?

PN52

MR CURRAN: Commissioner, I have had even less time than my friend to prepare for today, I found out about 1.30.

PN53

THE COMMISSIONER: Why was that? I was of the understanding that the parties were seeking an urgent hearing for this particular matter.

PN54

MR CURRAN: Commissioner, they didn't have any problems in terms of time but it was the nature of the applications that were being sought by my colleagues.

PN55

THE COMMISSIONER: I see. All right.

PN56

MR CURRAN: Commissioner, Mr Smith is correct in that Comcare is satisfied that the requirements of the two improvement notices have been met and consistent with that for the parties to the appeal, the parties strictly speaking, that is, Commissioner, are seeking the matter be resolved per the terms of the consent order. And likewise - - -

PN57

THE COMMISSIONER: A confidential consent order reached between the parties in terms of - shall I say that you are satisfied in relation to the provision of the information.

PN58

MR CURRAN: Following the provision of the information, Comcare is satisfied the requirements of the notices have been met and the consent order before you today simply flows from that fact and is designed to resolve the proceedings.

PN59

THE COMMISSIONER: All right. And do you have anything to say in relation to the foreshadowed direction about documents?

PN60

MR CURRAN: Commissioner, like my friend I think that it is difficult to make any meaningful submissions without the opportunity of considering them perhaps after the benefit of some written submissions by the unions but it would seem to me that the unions bear the onus of convincing the Commission that, given the fact that the parties have resolved the matter, that they should be entitled to the information. So the fact that the parties to the proceedings who have the carriage of it have decided the matter should be resolved would seem to be a fairly fundamental point.

PN61

THE COMMISSIONER: Thank you, Mr Curran.

PN62

MR CURRAN: Thank you, Commissioner.

PN63

THE COMMISSIONER: Mr Marklew?

PN64

MR MARKLEW: Just to touch on a couple of things. At the conclusion about our very first meeting next door, we were left with the impression, that's the CPSU, that we would be involved in an exchange of information and hence this multitude of documentation that came from both Telstra and from Comcare, and I didn't bring it all, there is CD-Roms and you name it, it was there and it took a lot of reading. The assumption, and it may have been incorrect on my part, was that we would then be involved in the process to come to the conclusion due to the fact that we, as a union, were left to pick up pieces in regards to our members. And in some cases we have members who are 18 months down the track still off on compensation or seeking compensation to the extent where, in one case I know that an individual has lost her balance completely, can't work et cetera. So based on that we assumed, or I assumed, that we would be involved in the proceedings.

PN65

And the first information I got was the listing last night. I came back late from another meeting where it said that the following review of further material provided by the applicant demonstrating the health and safety measures et cetera which I went back to my folders and files and spoke to my associate but we had nothing on it. So I did another search this morning and still could find nothing on it, and hence contacted the Comcare solicitors seeking to at least view, if not have copies, but at least view that documentation that has suddenly brought around this miraculous change in where we stand in regards to those incidences. We were concerned that we weren't involved in any of the reviewing of that documentation and it seems to have, as I said, formed the basis for the settlement. We had some concerns in relation to the process and the procedures that were in place prior to the pin being affected ant put in place.

PN66

And I should add that the occupational, health and safety representative involved in placing that pin went through an election process run by the CPSU and in fact sought advice and support from us all the way through the process so we do feel we are a vested partner in the whole process. To suddenly be told that it's finishing, concluded and thank you very much just seems a bit rich when - and I will admit I am not a solicitor or a trained person in law and not quite au fait with some of the provisions put forward by the gentleman to my left and further left. But I believe that natural justice and procedural fairness would at least involve a briefing, a summary, a viewing of the documentation. Some of the information that we have been supplied up to date is in itself confidential, there were witness statements and everything else. There didn't seem to by any concern at that stage so I just find it remarkable.

PN67

And quite a few occasions with Telstra we do get, and are privy to industrial and commercial in confidence material and we had deeds of agreements in regards to confidentiality to cover that sort of situation. I have spoken in depth to people like Paul Bolgers, the National Occupational Health and Safety Manager for Telstra and believe I have got an excellent working understanding with that particular gentleman. I just don't see this as a stumbling block and certainly don't want to prolong the proceedings in fact we would like to see it concluded as well, not given that the site in question that initiated this whole process in itself closing down the next two weeks anyway and moving into the city just around the corner from where we are currently standing. But the implications of what took place and what is going to take place in the future, as was explained earlier, does impact on numerous employees in similar circumstances both within the call centre environment and any other environment that has headsets.

PN68

We would like to be able to assure our members that, yes, it is safe, yes, there are provisions in place that have corrected that. That doesn't mean we are going to go out and say, Telstra has committed to Comcare who has committed to - I mean, we are not going to go to those nitty gritties. All we want to do is have a basis of support where, in all honestly, we can say, yes, your concerns were addressed and look, there is adequate protections in place.

PN69

THE COMMISSIONER: Thank you.

PN70

MS GARRETT: Yes, my client certainly supports the position of the CPSU. We would note that it does seem unusual that we have - or certainly the CPSU has been involved in every step of the way at a very detailed level and all of a sudden the door is being shut. I concur with my learned friends about the process. Perhaps if the Commission pleases, maybe the unions propose a timetable whereby the briefing that Mr Smith suggested took place, and if that resolved the concerns we could advise the Commission. Otherwise written arguments could be heard as to whether or not we would get access to that material. I think that would require and adjournment of these proceedings for the reasons outlined earlier and we would certainly do everything we can to participate in as quick a process as possible. But if that may be put forward as a suggestion on behalf of that client.

PN71

THE COMMISSIONER: All right. As I understand it, just dealing with the intervention issue generally, first of all, given that the submissions - I don't understand that there is a general opposition to the intervention for the CEPU to be heard on similar grounds.

PN72

MR SMITH: What is acquiesced to is that there has been leave granted to the CPSU for a right to be heard on the merits of the argument if the matter had proceeded to trial. So accordingly, we wouldn't object to - - -

PN73

THE COMMISSIONER: If the leave was granted in similar terms.

PN74

MR SMITH: Is granted in similar terms. However, what we are saying is we don't think that that leave extends to what the CEPU and the CPSU are saying it leads to which is disclosure of those documents.

PN75

THE COMMISSIONER: All right.

PN76

MR SMITH: Hence the reason why the question of leave is so critical in terms of whether or not those documents should or shouldn't actually be provided- - -

PN77

THE COMMISSIONER: But you have foreshadowed and Ms Garrett has certainly taken up the invitation, as I understand it, Mr Smith, of that union, and I am assuming similarly the CPSU to avail the representative bodies of that ability to have that briefing, whatever that may entail and whatever information that may provide in the first instance, to endeavour to see if that would resolve their concerns to give them some understanding of how this matter was resolved. And it may in fact inform them and also appease their concerns in relation to this particular matter.

PN78

MR SMITH: And certainly that is not an unattractive option from our perspective.

PN79

THE COMMISSIONER: And that limited intervention, or leave for them to appear, I think would in fact simply, in fact they don't even need that leave to in fact by privy by that invitation to those documents.

PN80

MR SMITH: My instructions are that my client is willing to engage in a briefing for both representatives of the CEPU and the CPSU.

PN81

THE COMMISSIONER: All right. Mr Curran, did you need to say anything in relation to the intervention?

PN82

MR CURRAN: Commissioner, I don't have specific instructions in relation to that. I would rather not commit our client in relation to that. All I can simply say is that my general instructions, given the time I had, was that our client simply wishes the matters to be resolved. But I wouldn't foresee any difficulty whatsoever if Telstra is agreeable to the briefing that is being spoken about for the matter to be adjourned on that basis.

PN83

THE COMMISSIONER: All right. Well, on the basis that the leave was granted to the CPSU, I will also grant, pursuant to section 43(1), the same intervention generally to the CPSU. And that is on the basis that, as sought this afternoon, to allow the parties in terms of these particular proceedings, and I am not sure that to be privy to the invitation and the material that Mr Smith is foreshadowing that intervention is required. However, it will allow the CEPU to be heard on the same basis as the CPSU and I see no right to exclude them in the same manner that the CPSU has been included in these particular proceedings. All I am doing in relation to that, Mr Smith and Mr Curran, is activating that invitation in accordance with the submissions of both your parties, your clients that you represent, to allow for that particular process to occur prior to a decision being made if needed in relation to the provision of any documentation. It seems prudent given that course of action to set aside the order in this particular matter and if, in fact, the briefing that you, and any pursuant discussions, do not resolve the matter in terms of the provision of documents, I would expect to be notified by the particular parties.

PN84

If that is the case I would then set a directions conference if that is the most poignant course to follow at that particular time as to the pursuit of those particular orders that you are seeking, whether that matter can be dealt with, or whether it needs to be stalled in relation to what is being sought in relation to the directions, and what power those directions, in terms of the jurisdiction that I have, in relation to the original proceedings in this matter, what powers you are seeking or what power you are asking me to exercise in relation to the directions of that material. And it would be then that by agreement appropriate directions would be set in relation to this matter. I should say, however, that - and I do not say this to the discredit of the unions at all in pursuing the particular material, that this was initially a complicated matter. I understood that there has been significant discussions between the parties in relation to the resolution of this particular matter.

PN85

I in no way step back from the arbitration of this particular matter but the appropriate course was originally, as I think I foreshadowed off the record, for the parties to consider this particular matter. And they have done so and that is commendable. I also, having said that, understand though the union's position in wanting to appropriately represent the parties. I don't see that any of the submissions today are endeavouring to confine or narrow anyone's representative rights but in the first instance again, if conciliation can prove to resolve the particular matters in terms of to inform the parties as best they can within the confines of representing their clients of how the matter was resolved I would like that course of action to proceed. And then of course appropriate procedural directions will follow if submissions persuade that the jurisdiction exists. So there is two things. Mr Smith, I understand that you will take carriage of providing the appropriate information for those briefings to her.

PN86

MR SMITH: Yes. I will speak to my client and my client will contact representatives of the CEPU and CPSU and make arrangements for delivery of those briefings.

PN87

THE COMMISSIONER: All right. And then if, in fact, the unions confirm that that has resolved the particular matter, all that needs to be brought back on is in fact the order in these particular proceedings. If that is not the case then it will be confirmed what is being sought and a directions conference will be set in relation to the jurisdiction of those particular issues in terms of the documents and simply in terms of the order that is being sought.

PN88

MR SMITH: Yes.

PN89

THE COMMISSIONER: All right. Any other questions at this time? All right. On that basis we will adjourn. Thank you.

<ADJOURNED INDEFINITELY [2.43PM]