C2005/4042, Transcript of Proceedings [2005] AIRCTrans 1778 (29 August 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12494-1

COMMISSIONER SMITH

C2005/4042

APPLICATION BY CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION
s.141 - Common rules
(C2005/4042)

MELBOURNE

10.39AM, MONDAY, 15 AUGUST 2005

PN1

MS L ANDELMAN: I appear for the Community and Public Sector Union.

PN2

MR D IRONS: I appear for the Communications, Electrical & Plumbing Union.

PN3

MR S SMITH: I appear for the Australian Industry Group.

PN4

MR P EBERHARD: I am from the Victorian Employers' Chamber of Commerce and Industry.

PN5

THE COMMISSIONER: Thanks. Ms Andelman?

PN6

MS ANDELMAN: Thank you, Commissioner. Further to the directions issued by the Commission in regard to this matter on 15 August 2005 we, the CPSU being the applicant, did in fact notify all the parties of the date and place of the hearing and provide to all the other parties, a draft application which complies with relevant sections of the Act and the regulations of the Act. I have here with me a statement from Ms Ellsie attesting to the fact that she did in fact forward a covering letter as well as an application and a notice of hearing on 22 July, as well as a spreadsheet outlining the mode of communication to all parties.

PN7

THE COMMISSIONER: Thank you.

EXHIBIT #CPSU1 STATEMENT OF SERVICE

PN8

MS ANDELMAN: Thank you, Commissioner. The Australian Industry Group helpfully informed all their members in regard to this hearing. In regard to other companies to this award, they were notified either through certified mail or facsimile. And you will see, Commissioner, in column B the method of notification and wherever the notification was in fact successful or not. We were not able to notify a number of companies, and we believe that the reason for that is that those companies are no longer trading, or have been consumed by other companies in the award. So for example we weren't able to contact Alfa Telecom Pty Ltd or Asia Global Crossing Pty Ltd or GoConnect Australia Pty Ltd.

PN9

THE COMMISSIONER: Yes.

PN10

MS ANDELMAN: Commissioner, we have here a draft declaration in regard to the common rule application which I seek to hand to you.

PN11

THE COMMISSIONER: Thank you.

EXHIBIT #CPSU2 DRAFT DECLARATION

PN12

MS ANDELMAN: Commissioner, I think this is a fairly straight forward declaration having dealt with these before but it does seek to make the Telecommunications Service Industry Award 2002 apply as a whole in the state of Victoria apart from a number of administrative clauses and that is found in paragraph 3.1, 3.2 and 3.3. We seek that the common rule application apply to all existing parties that is the CPSU, CEPU and the registered organisations bound to this award as well as all the company respondents.

PN13

THE COMMISSIONER: At clause 2.4 - - -

PN14

MS ANDELMAN: I am sorry, clause?

PN15

THE COMMISSIONER: Two point four.

PN16

MS ANDELMAN: Yes.

PN17

THE COMMISSIONER: So 2.4 doesn't apply, is that right?

PN18

MS ANDELMAN: In paragraph 2.4 it states that:

PN19

This common rule application is binding on CPSU, CEPU and the registered organisations bound by this award.

PN20

THE COMMISSIONER: I see.

PN21

MS ANDELMAN: There is in fact a typo on the first and second line of that and the communications appears twice.

PN22

THE COMMISSIONER: Does it?

PN23

MS ANDELMAN: Yes.

PN24

THE COMMISSIONER: Based on the Community and Public Sector Union - I see, yes. Is the name CPSU, the Communications and Public Sector Union?

PN25

MS ANDELMAN: Yes.

PN26

THE COMMISSIONER: That is the registered organisation, is it?

PN27

MS ANDELMAN: Yes.

PN28

THE COMMISSIONER: Thank you. So it is CPSU, Community and Public Sector Union and the Communications Electronic, yes thank you.

PN29

MS ANDELMAN: Just on that, Commissioner, in regard to any of the changes that we propose to make to the draft declarations, on page 1 in the definitions of an employee, employees. It should read, "means employees who are engaged by a business in the telecommunications service industry."

PN30

THE COMMISSIONER: Yes.

PN31

MS ANDELMAN: Services industry.

PN32

THE COMMISSIONER: Yes.

PN33

MS ANDELMAN: And in the definition of a business in the telecommunications industry it should be a business in the telecommunications services industry.

PN34

THE COMMISSIONER: Yes. Just to overcome future misunderstandings should they arise.

PN35

MS ANDELMAN: Commissioner we are also willing to give the undertaking. That is it is not the intention of CPSU and the CEPU to seek to retrospectively enforce the common rule declaration in circumstances where an employer has been legitimately and appropriately applying another award, which also covers the work performed by the employees and the position is advanced without prejudice to the rights of parties to seek the making of the roping-in awards, irrespective of the common rule declaration by an employer or any rights under part 9 of the Act.

PN36

THE COMMISSIONER: Thank you.

PN37

MS ANDELMAN: Commissioner, the draft declaration was forwarded to CEPU only this morning in the form that is before you. As such CEPU has expressed a desire to have some further time to examine the draft declaration and we have agreed between ourselves that with your approval, Commissioner, that we would seek that this draft declaration not be made until 29 August and that during that time if CEPU does wish to make further submissions in regard to this matter that they may do so.

PN38

THE COMMISSIONER: All right. Thank you. Mr Irons?

PN39

MR IRONS: Thank you, Commissioner. The facts that have just been outlined by my colleague are correct. We do have a, not what I would say a concern but we have got some people that want to have a look at the third dot point in clause 1 which is in relation to a business in the telecommunications industry and that third dot point is the new paragraph that you hadn't had a chance to have a look at and as such we would seek the delay in, as was outlined.

PN40

THE COMMISSIONER: Sure. Thanks and to the extent that that is approved, you give the undertaking that was given by Ms Andelman?

PN41

MR IRONS: Yes I would, Commissioner.

PN42

THE COMMISSIONER: All right. Thanks very much. Mr Smith?

PN43

MR SMITH: Yes thank you, Commissioner. We have consulted with our members in the telecommunications services industry as well as the labour hire industry in respect of the union's application. We have also had negotiations with the unions about the terms of the declaration and as a result of those consultations and negotiations we are in a position to - - -

PN44

THE COMMISSIONER: Peace has broken out.

PN45

MR SMITH: We certainly hope so, Commissioner, and we are in a position to consent to the application and we have got no objection to the proposed operative date which we understand is 29 August. With regard to the undertaking that has been given we would ask, Commissioner, that consistent with what has been the practice of the Commission, that the terms of that undertaking be written into the decision in relation to this matter. With regard to the position of the CEPU and this was only communicated to us a few moments ago, as we understand it the union is seeking more time to consider just the third dot point of that definition of a business in the telecommunications services industry.

PN46

Commissioner this dot point is important because the way the award is worded in its scope, it talks about businesses whose principal function is carrying on the supply. So it could be argued that labour hire companies aren't automatically included, so it is not seeking to do anything other than arrive at the same position, as applies in most awards that labour hire would be covered as would employees of the companies specifically involved in that industry.

PN47

THE COMMISSIONER: Yes.

PN48

MR SMITH: And we would seek that the directions relating to the CEPUs rights be limited to that third dot point which we understand, is acceptable to the CEPU. If the Commission pleases.

PN49

THE COMMISSIONER: Yes. Mr Eberhard?

PN50

MR EBERHARD: Thank you, Commissioner. Commissioner, given that the two unions have given the undertaking here today, VECCI wouldn't be opposing the application being granted by the Commission nor would we oppose an operative date of 29 August.

PN51

THE COMMISSIONER: Thank you. Now, Mr Irons, you are only looking at the third dot point, aren't you?

PN52

MR IRONS: That is correct, yes Commissioner.

PN53

THE COMMISSIONER: All right. Thanks very much. Very well. Well, you have until 29th and then, I am satisfied that all other matters in accordance with the Act and pursuant to section 141 and section 493 of the Act, subject to any submissions that you might put on 29th, I will declare the Telecommunications Service Industry Award 2002 a common rule award for the state of Victoria. Thank you for your attendance. The matter is adjourned.

<ADJOURNED INDEFINITELY [10.51 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CPSU1 STATEMENT OF SERVICE PN7
EXHIBIT #CPSU2 DRAFT DECLARATION PN11