C2006/3010, Transcript of Proceedings [2006] AIRCTrans 1178 (30 October 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15933-1

COMMISSIONER SMITH

C2006/3010 C2006/3011

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
AND
TELSTRA CORPORATION LIMITED
s.170LW pre-reform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/3010)

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
AND
TELSTRA CORPORATION LIMITED
s.669 - Application for orders to consult unions
(C2006/3011)

MELBOURNE

11.05AM, TUESDAY, 17 OCTOBER 2006

PN1

THE COMMISSIONER: Yes.

PN2

MR DWYER: Yes, thank you, good morning, Commissioner. I think my learned friend wishes to raise a matter.

PN3

THE COMMISSIONER: Yes, Mr Wood.

PN4

MR WOOD: Commissioner, I think formally I've been granted leave to appear in the matter that was by Vice President Lawler. Commissioner, as we understand the matter, the application is made purportedly pursuant to section 170LW by way of a document forwarded to the registrar of the Commission on 7 September 2006. Does the Commission have that document?

PN5

THE COMMISSIONER: I have the file. Is that the letter dated 7 September?

PN6

MR WOOD: Yes.

PN7

THE COMMISSIONER: Yes.

PN8

MR WOOD: As we understand things, that letter contains two applications which have been identified as 2006/3010 and 2006/3011. The so called application made pursuant to section 170LW is 3010 and the application made pursuant to section 668 is 3011.

PN9

THE COMMISSIONER: Yes.

PN10

MR WOOD: In relation to the 3010, as we understand things, the actual jurisdiction that is being exercised is a jurisdiction pursuant to section 89B and section 134H of the Industrial Relations Act prior to the passing of the Industrial Relations Reform Act of 1993, that is in short terms, this was an agreement made pursuant to the amendments passed when Senator Cook was the relevant minister and prior to Minister Brereton assuming that office. Commissioner, I will take you to the case if you need to but McBean v Telstra says - I might just take it to you first.

PN11

Commissioner, this is a case of Telstra Corporation Ltd v McBean [2000] FCA 437; (2000) 97 FCR 421. Relevantly Ryan J concludes at paragraph 12 - - -

PN12

THE COMMISSIONER: Just a moment. We're getting some feedback. That's fixed it. Off you go.

PN13

MR WOOD: Paragraph 12 talks about the argument that Telstra presented and then at 13 he concludes:

PN14

I consider that the preferable construction of section 35(2) -

PN15

That's 35(2) of the Industrial Relations Reform Act -

PN16

is that except in relation to extensions of the period of the operation it preserves the application to agreements coming into force ...(reads)... was applicable to those certified agreements.

PN17

Commissioner, we may have rather cornered the market on that version of the Industrial Relations Act which was in force at that time. We have got a copy from the Commonwealth of Australian joints Law Courts Library and a copy from the University of Sydney Library. I don't know if there are any other copies of this Act.

PN18

THE COMMISSIONER: I have one but I didn't bring it with me.

PN19

MR WOOD: I might just provide it to you formally, Commissioner.

PN20

THE COMMISSIONER: Thank you.

PN21

MR WOOD: But the point that we wish to make is that although - we just really want to make that the point that the jurisdiction is that jurisdiction which I have identified and we've had a look at the sections, that is section 134H and section 89B, they seem to be relevantly identical to the successor provisions, that is 170MH I think from memory and 170LW, and accordingly the jurisprudence that's developed in relation to those sections would apply to this agreement. That is, the jurisprudence that relates to the law concerning over the application of agreement.

PN22

THE COMMISSIONER: Is there any issue between the parties on that?

PN23

MR WOOD: No, Commissioner, other than at an earlier stage of this proceeding the jurisdictional basis for the application was identified in a somewhat different form.

PN24

THE COMMISSIONER: I see.

PN25

MR WOOD: And I just wanted to make it clear that that's the jurisdiction and then we can proceed from there.

PN26

THE COMMISSIONER: All right, thank you. Are you content with that course, Mr Dwyer?

PN27

MR DWYER: Am I?

PN28

THE COMMISSIONER: Are you content with that characterisation of the jurisdiction?

PN29

MR DWYER: Yes, we have no - it has a very complex history in this matter.

PN30

THE COMMISSIONER: I'm eager. I'm eager to hear it.

PN31

MR WOOD: Commissioner, there are two issues that arise about this application, that is 3010, and one of those issues also applies to 3011 and they are that this dispute was notified prior to the steps in the certified agreement - sorry, the dispute resolution procedures in the certified agreement having been complete and Commissioner, I will hand up a case, a recent Full Bench decision. It's about a year old now. I'll hand a copy to Mr Dwyer. Is it convenient if I hand up two copies for - - -

PN32

THE COMMISSIONER: Yes, that would be great. For Judge Couch, yes, please. Thank you.

PN33

JUDGE COUCH: It will advance my education on the Australian industrial law. Thank you.

PN34

MR WOOD: Commissioner, the proposition which this case stands is that the dispute settlement procedures in an agreement operate on a step wise basis and that it's not until one goes through those steps and goes through the procedures that are envisaged by those steps that one can go to the next step and as at
7 September 2006 none of the 48 employees who are the subject of the dispute had proceeded through the dispute procedure under the 2002 agreement. Now, it's true to say that as at today's date four of them have. Four of them could make an application today and they have gone through what I call phases 1, 2 and 3 of clause 17 of the Telstra Redundancy Agreement and they are Mr Steven Griffiths, Mr Gary Comisari, C-o-m-i-s-a-r-i, Mr Dale Burgess and Mr Fred Hammer.

PN35

Commissioner, we don't want to take two technical a point and as long as we're given an adequate opportunity to respond to what's ever said, if Mr Dwyer wanted to say that he makes an application now in relation to those four employees having satisfied the prerequisites in clause 17 of the agreement, then subject to what might be said in support of any application they might make and any evidence we might need to - - -

PN36

THE COMMISSIONER: You draw the distinction, do you about whether or not an application can be made or whether or not procedurally certain steps have to be taken?

PN37

MR WOOD: I might not have been particularly clear, Commissioner. Perhaps I can - - -

PN38

THE COMMISSIONER: Do I understand the distinction you draw is that no application can be made until procedural steps have been taken?

PN39

MR WOOD: Yes, Commissioner.

PN40

THE COMMISSIONER: yes.

PN41

MR WOOD: Yes, unless you go through the - the process in the dispute settlement agreement is that it's a step wise process and that it envisages potentially disputes being resolved through the steps. For example, a number of employees have stopped at stage 1 of the process out of the 48.

PN42

THE COMMISSIONER: Yes, I follow.

PN43

MR WOOD: And at the moment only four people have proceeded through the three steps that must be proceeded through before one can make an application to the Commission.

PN44

THE COMMISSIONER: Yes.

PN45

MR WOOD: That's what one would expect.

PN46

THE COMMISSIONER: Yes.

PN47

MR WOOD: But the point I was trying to make perhaps a bit too obtusely was that we're not going to require Mr Dwyer to go down formally and put a piece of paper in at 10 past 11 in the registry and then come back and seek a re-listing, those sort of things. If Mr Dwyer says he's got instructions to make application then we're happy to deal with that informally because we're here, provided that we're adequately protected in terms of what might be said in support of those applications. That's the first point we make, Commissioner. The second is related to the first and it turns on the form of relief that's sought. Commissioner, do you want me to articulate that first point in any more detail?

PN48

THE COMMISSIONER: No, I understand. Thank you.

PN49

MR WOOD: Yes. Commissioner, the form of relief that's sought in the application is found in two places. Perhaps the first place to look might be - - -

PN50

THE COMMISSIONER: Could I just ask you to pause for a moment, Commissioner?

PN51

MR WOOD: Yes.

PN52

THE COMMISSIONER: Do you say that you can't have a dispute about whether or not a matter has been discussed between the employee and the employee's two up manager?

PN53

MR WOOD: You could have a dispute about that.

PN54

THE COMMISSIONER: How does it get here? If you're right, how does it get here?

PN55

MR WOOD: Well, then that would be agitated through - - -

PN56

THE COMMISSIONER: Under the agreement I mean.

PN57

MR WOOD: Under the agreement through the process there would be - - -

PN58

THE COMMISSIONER: I thought an application couldn't be made until that had occurred.

PN59

MR WOOD: If you're talking about an application - I don't think that arises on these facts, Commissioner.

PN60

THE COMMISSIONER: No, no, I understand. I'm just interested in the point that you make that an application is not on foot until certain things have happened.

PN61

MR WOOD: Perhaps an application is too legalistic a word, Commissioner. The point we make relying on the Charles Sturt case is that unless one gets to subclause (e) of clause 17.1 - - -

PN62

THE COMMISSIONER: Then the involvement of the Commission is premature.

PN63

MR WOOD: That's correct.

PN64

THE COMMISSIONER: I understand that point.

PN65

MR WOOD: Sorry, that was the point I was trying to make.

PN66

THE COMMISSIONER: Yes.

PN67

MR WOOD: But you can't make an application or referral or however one wants to construe it to the Commission.

PN68

THE COMMISSIONER: Yes. So really in that context Mr Dwyer has to say, well, we're not pressing these persons who have not gone through that process but for these proceedings we seek to press these persons.

PN69

MR WOOD: That's quite correct, Commissioner.

PN70

THE COMMISSIONER: I follow.

PN71

MR WOOD: I'm sorry, Commissioner.

PN72

THE COMMISSIONER: That's all right.

PN73

MR WOOD: I don't think it arises, Commissioner, but Mr Gardner just directs my attention to clause 17.2 and points out that you can't in fact a dispute about the application of clause 17 of the agreement, so that's excluded, you don't get into that circularity.

PN74

THE COMMISSIONER: Yes. No, I follow.

PN75

MR WOOD: Commissioner, the second point we make is about the form of relief.

PN76

THE COMMISSIONER: Yes.

PN77

MR WOOD: And perhaps the first place to start there is with the contention which were filed yesterday by Mr Dwyer. These were filed pursuant to some directions that Vice President Lawler made I think some time after lunch on Friday, the 13th.

PN78

THE COMMISSIONER: Yes.

PN79

MR WOOD: Does the Commission have those?

PN80

THE COMMISSIONER: Just a minute. I don't appear to have them.

PN81

MR WOOD: We have a spare copy, Commissioner, but we've written all over it. We've got another one now. If I can hand up a copy.

PN82

THE COMMISSIONER: Thank you very much.

PN83

MR WOOD: Unfortunately I can't hand up too.

PN84

THE COMMISSIONER: No, no. We have two. I have mine, thank you.

PN85

MR WOOD: Commissioner, you'll see that the contentions run for some 13 paragraphs.

PN86

THE COMMISSIONER: Yes.

PN87

MR WOOD: And it's really the 13th paragraph I would like to direct your attention to and then the third or fourth page which is headed Designers Dispute Draft Orders. You will see at paragraph 13 it says:

PN88

Possible draft orders were tendered during the conciliation process.

PN89

They were marked CEPU6 I think from memory -

PN90

A further draft is set out below. These may change after evidence has been disputed the issues clarified.

PN91

Obviously we don't say anything about that but if they do change and the issues are clarified then subject to our ability to respond quickly then we'll deal with that then.

PN92

THE COMMISSIONER: Yes.

PN93

MR WOOD: But on the next page it talks about the draft orders and says that -

PN94

Any further processes arising from the issue of form A of 24 August 2006 relating to 48 design staff in the service delivery be stayed for six months.

PN95

And Commissioner, that refers back to another exhibit which is exhibit, I think it's CEPU3.

PN96

THE COMMISSIONER: A copy of advertisement.

PN97

MR WOOD: Well, I might have the wrong - I'll just check. I'm sorry, it's CEPU4. It's a bit confusing, Commissioner, because it's got CEPU4 on the left side and number 3 on the right hand side.

PN98

THE COMMISSIONER: Yes, I found it, thank you.

PN99

MR WOOD: That's a three page document, Commissioner. You can pass over the cover sheet and the first and the second page because the second page relates to similar redundancies in the Sydney area, five in number, but it's the third page which is relevant and you'll see there that identified there are the 48 positions that are the subject of the order. Now, obviously that has to be limited to the persons who have gone through clauses 17.1 to 17.4 of the dispute settlement procedure so it could only ever be, at the moment, four people. But the more substantial point is that the Full Bench in a - - -

PN100

THE COMMISSIONER: An appeal against Vice President Lawler, is that the one you're going to?

PN101

MR WOOD: Exactly, Commissioner.

PN102

THE COMMISSIONER: I thought we'd get to a status quo type argument reasonably quickly.

PN103

MR WOOD: Yes. Well, perhaps not as quickly as one would have hoped, Commissioner.

PN104

THE COMMISSIONER: Yes.

PN105

MR WOOD: I will hand up copies of that decision too, Commissioner.

PN106

THE COMMISSIONER: Is this a matter that needs to be argued now or could we do it at the end of the day to see if it arises?

PN107

MR WOOD: Well, it's really a matter of what is sought. If what is sought - the point of the contentions was to identify and to bring some focus to the proceedings this morning so that we could respond properly.

PN108

THE COMMISSIONER: Yes.

PN109

MR WOOD: At the moment it's the relief sought is still relief that can't be granted and it would seem silly to go into evidence to run a case to find that the relief can't be granted. But if Mr Dwyer was to identify some other form of relief then again subject to our ability to respond and those sorts of matters, Commissioner, we could deal with that.

PN110

THE COMMISSIONER: What do you say can't be granted, the staying of the process?

PN111

MR WOOD: Yes, Commissioner. The Full Bench stated and it's I think at paragraph 43 to 50 of the Full Bench decision.

PN112

THE COMMISSIONER: Yes.

PN113

MR WOOD: But the Full Bench focused upon - do you want me to just lead you read the whole of that, Commissioner?

PN114

THE COMMISSIONER: 43 and 50?

PN115

MR WOOD: Yes.

PN116

THE COMMISSIONER: Yes, please. Yes, thank you.

PN117

MR WOOD: Commissioner, you will see relevantly it's paragraph 50 that we rely upon and clause 17.3 that -

PN118

While any dispute is in the process of being resolved work shall continue ...(reads)... shall continue without interruption.

PN119

The order sought seeks to stay the processes which follow - sorry, I'm picking up the word - arising from the issue of form A. The form A process is the process identified in the agreement under clause 7.2. And we say this issue has been litigated and it's very clear that the sort of relief that Mr Dwyer seeks can't be granted. I don't mean to verbal him but I think it's common ground that the problems with this form of relief were identified in other - well, perhaps I shouldn't say any more than that, Commissioner. But they're the two points that we make. That secondary point also goes to 3011 application because - I don't think I need to take you to this, Commissioner, but you will recall there were some changes made to the Act to prevent a reinstatement of an employee or a withdrawal of a notice of termination.

PN120

THE COMMISSIONER: Yes. What's the time frame for termination of the four persons that you say have gone through the process?

PN121

MR WOOD: Thursday as I understand things.

PN122

THE COMMISSIONER: Thursday.

PN123

MR WOOD: The 19th, yes.

PN124

THE COMMISSIONER: So we have until Thursday.

PN125

MR WOOD: Yes, Commissioner.

PN126

THE COMMISSIONER: On your submission.

PN127

MR WOOD: Sorry?

PN128

THE COMMISSIONER: On your submission.

PN129

MR WOOD: Yes, Commissioner.

PN130

THE COMMISSIONER: All right. Yes, Mr Dwyer.

PN131

MR DWYER: Thank you, Commissioner. I will just very briefly touch on this so my learned friend will know where we're going and you'll know where we're going. The time frame is very short and unless we do have some form of stay or some form of overturning of the process then these proceedings really don't make any difference to the four people and a couple of others who are part way through the process. I am familiar with the Full Bench decision of course in that matter and in our contentions that we've just been referring to we do make the point at clause 11 in our contentions that clause 17.4 of the agreement states -

PN132

Should any case of retrenchment become the subject of dispute, become the subject to it having being processed in accordance with the agreement.

PN133

I just want to give some meaning in our submission to those words, subject to it having being processed in accordance with the agreement. We would say that if it hasn't been processed in accordance with the agreement then a stay order in our submission would be appropriate. I wish to return to that, Commissioner. I just want to advise you of this, at the moment I have two witnesses from Coffs Harbour who are on a 2.30 flight and we've lost a little bit of time this morning. We'll either have to re-jig their flights or see how we go. I don't know how much cross-examination, there's certainly not long evidence, but how much cross-examination is involved. I would like to at least put those people, commence with one of those and see how we go before we make a judgment. That would mean they would need to leave here by 1.30, Commissioner.

PN134

THE COMMISSIONER: Mr Wood, do you have any difficulty with that?

PN135

MR DWYER: Or would you rather me do the flight changes now?

PN136

THE COMMISSIONER: Well, what does Mr Wood - - -

PN137

MR WOOD: Commissioner, this is obviously a matter for the Commission in terms of the way it wants to program matters. We thought it would be more sensible to try to focus the form of relief prior to going into evidence because if we go into evidence now and these witnesses are called, at the end of their examination-in-chief probably I'm going to get up and say, well, I don't know what to ask these witnesses, don't know what the relief is being sought, or I might have a go at cross-examining them and I might have to recall them. That's one likely outcome. I might have to ask them to be recalled, I beg your pardon.

PN138

Commissioner, if this relief can't be granted and Commissioner, you'll note that we don't rely on clause 17.4. 17.4 was argued in the Full Bench decision and the Full Bench at paragraphs 48 and 49 support what Mr Dwyer says. They found that 17.4 didn't prevent the orders being, it was 17.3, and it's 17.3 that prevents this interim relief being granted on the basis of what the Full Bench say in paragraph 50.

PN139

THE COMMISSIONER: But that only arises on Thursday, doesn’t it?

PN140

MR WOOD: Beg your pardon?

PN141

THE COMMISSIONER: It only arises on Thursday?

PN142

MR WOOD: It only arises on Thursday?

PN143

THE COMMISSIONER: Yes, the argument that you put. If the matter is heard and determined today or tomorrow the issue doesn't arise, does it?

PN144

MR WOOD: No, it does arise. If it's heard today and tomorrow it might not arise on Friday. That is, there's a somewhat elliptical reference at the end of paragraph 50 -

PN145

With respect, for that reason we disagree with the Vice President's findings the Commission had an unqualified power to make an interim restraining the terminations.

PN146

Well, that's what's sought today, or Wednesday, or before they take effect on Thursday -

PN147

In the circumstances no power to issue such an order in this case. This is not to say the Commission will be powerless should it subsequently find the retrenchments were unjustified under the agreement.

PN148

That is, the Full Bench seems to be saying there might be an argument that there is power post termination to grant some sort of relief. Now, that's really a matter for debate and argument and it might be that - who knows where that debate and argument will lead. But the point we make is that there's no power at the moment to restrain the terminations which are due to take effect on the 17th because of clause 17.3.

PN149

THE COMMISSIONER: As you would appreciate - - -

PN150

MR WOOD: Sorry, 19th.

PN151

THE COMMISSIONER: As you would appreciate, I've only come to this matter rather lately, but I would have suspected that what I'm being asked to do is a fairly straight forward and routine matter, namely, has the clause been applied.

PN152

MR WOOD: Commissioner, we don't say that you don't have jurisdiction to resolve the dispute, you can.

PN153

THE COMMISSIONER: Well, if I said for example tonight the clause hasn't been applied, then it would be a matter for the union to go somewhere else, or a judgment that you make whether or not you proceed to terminate against the background of such a finding.

PN154

MR WOOD: Well, if Mr Dwyer simply seeks an award being the opinion of the Commission then that is something that we can examine if that's what he seeks and work out what our response to it might be, but at the moment that's not being sought. The reason we're here is there's an application on foot to restrain the terminations of the four employees.

PN155

THE COMMISSIONER: Yes.

PN156

MR WOOD: In fact there's an application to restrain the termination of 48 employees who are due to be terminated on the grounds of redundancy on Thursday and all we are saying is that the Commission doesn't have power to do that.

PN157

THE COMMISSIONER: Yes, I follow. All right. Mr Dwyer.

PN158

MR DWYER: Thank you. I think the short answer, Commissioner, is we'd be pressing both. Our primary order we are seeking is that be a stay and that would be based on an argument we would say that reading clause 17.3 and 17.4 together meaning has to be given to those words and as the Full Bench has recognised.

PN159

THE COMMISSIONER: Yes.

PN160

MR DWYER: And there are circumstances which can arise. For example, we will be pressing very hard that from the beginning Telstra has refused to consider job swaps. Now, we would say that robbed us of a genuine opportunity to mitigate the redundancies. We say that would be a breach - not a breach, the process hasn't been followed because we were never given that opportunity and that would then trigger the 17.4 part of the clause which will allow you in our submission to provide that form of relief of a stay. The timing is not so important. This has exercised my mind quite a bit, clearly we can't come and seek orders that these people be employed. How do we get around the clause where Telstra has right provided they follow the processes correctly to terminate these people but in a cyclone procedure within eight weeks.

PN161

So staying it for a certain period of time would be the relief, make them go back and do it properly. Alternatively though if, for example, you were to make the findings that the processes haven't been followed and stop at that point, then all other things being equal our people will exit the organisation this Thursday
and - - -

PN162

THE COMMISSIONER: Well, you can seek an order in the court, can't you?

PN163

MR DWYER: We could but our primary submission is that we're seeking a stay here.

PN164

THE COMMISSIONER: Yes. No, I understand.

PN165

MR DWYER: And in my view given what's happening for these people it's the most proficient, I'll use the word, humane thing to do

PN166

THE COMMISSIONER: Well, it's got to be within power.

PN167

MR DWYER: Yes, of course.

PN168

THE COMMISSIONER: That's the only problem. I'm not timid but the President presided over the Full Bench.

PN169

MR DWYER: Yes.

PN170

THE COMMISSIONER: I'll hear your evidence.

PN171

MR DWYER: So to conclude - - -

PN172

THE COMMISSIONER: Let's hear your evidence.

PN173

MR DWYER: Yes, we'll put the evidence in.

PN174

THE COMMISSIONER: Yes, by all means. We'll see where we go.

PN175

MR DWYER: Thank you, your Honour.

PN176

THE COMMISSIONER: Thanks, Mr Dwyer. Who do you want to call first? Well, just before you do. All right, Mr Dwyer.

PN177

MR DWYER: Thank you, Commissioner. The first witness will be Mr Garry Comisari.

PN178

THE COMMISSIONER: You've asked your other witnesses to leave, have you?

PN179

MR DWYER: Yes, I did.

PN180

MR WOOD: Before the witness is sworn, Commissioner, we have two witnesses, Mr Geoff Brown and Ms Judith Wagner who are here today. I've had the opportunity to speak to them briefly this morning and Mr Gardner yesterday. It would be our preference that they stay in the body of the Commission. We don't perceive this to be a credit issue, it's really a question of who spoke to who and when. But if my learned friend wants them out, well, of course that's his right.

PN181

THE COMMISSIONER: Yes. Mr Dwyer.

PN182

MR DWYER: I would request they be out, Commissioner.

PN183

THE COMMISSIONER: That's fine. And I would be grateful for whoever is last to close the door.

<GARRY COMISARI, SWORN [11.42AM]
<EXAMINATION-IN-CHIEF BY MR DWYER

PN184

THE COMMISSIONER: Please sit down. Yes, Mr Dwyer.

PN185

MR DWYER: Thank you, Commissioner.

PN186

Mr Comisari, you're one of the 48 designers who have been made redundant the subject of this proceedings?---That's correct.

PN187

And you've been through a process of speaking to a one up manager, a two up manager and a human resources manager?---I've been through that whole process, yes.

PN188

I want to bring your attention to - Commissioner, the exhibits that were put in in conciliation in the opening of conciliation today are before the Commission in this matter?

PN189

THE COMMISSIONER: I do have a list of exhibits CEPU1 to 6 for those matters that are publicly - - -

PN190

MR DWYER: Yes.

PN191

THE COMMISSIONER: Yes, I have those, thank you.

PN192

MR DWYER: Just very briefly, just for the assistance of the Commission because this has happened before, could you explain what a designer role is?
---Basically what I do, Commissioner, is I design telecommunications infrastructure on a project by project basis. Yes, at a request jobs are sent to me through - by Telstra and I basically design on a job by job basis the infrastructure to feed telephony services in local areas.

PN193

Thank you, Mr Comisari. May I approach the witness?

PN194

THE COMMISSIONER: My associate will give it to him.

PN195

MR DWYER: Thank you. I just want to refer to exhibit CEPU3 which was an advertisement from the Coffs Harbour Advocate. Mr Comisari, have you seen this before, this document?---I've seen this advertisement, yes.

PN196

What can you say about that?---Well, I didn't actually see the advertisement until after the application date had closed. Basically I was aware of the jobs being available in the same building as where I work but at the time I had no idea that I was going to be made redundant so I didn't apply for it, for any of those positions. Had I have known I was going to be redundant I certainly would have put in an application. But as I say, when I was aware - sorry, I was made redundant about a week after the closing date for these job.

**** GARRY COMISARI XN MR DWYER
PN197

THE COMMISSIONER: When you say made redundant?---Sorry, I was told of my redundancy.

PN198

How were you told?---We had a telephone hook up and a net met on the computer 3 o'clock one afternoon. It was supposedly just an outcome of a restructure for our department and yes, the restructure unfortunately didn't include keeping any of us country designers.

PN199

Thank you.

PN200

MR DWYER: Had you had any warning - or what warning did you have?
---Absolutely none. In fact five, probably six months, every so often we'd have a team group where we would have a state wide or a country state wide telephone hook up and net meet and I asked the question two or three times was there any likelihood of the country design positions being centralised anywhere, for example, Newcastle, and I was reassured that that wouldn't make sense, that Telstra require designers to do the work out in the country areas to be on site, so I thought I was safe.

PN201

THE COMMISSIONER: I'm sorry, Mr Comisari, where are you based?---Coffs Harbour.

PN202

Coffs Harbour?---Coffs Harbour, Commissioner.

PN203

Thank you.

PN204

MR DWYER: Commissioner, just for your assistance, in the notice the word Toormina is a suburb of Coffs Harbour. Coffs Harbour and Toormina are interchangeable in these proceedings.

PN205

THE COMMISSIONER: Thank you.

PN206

MR DWYER: T-o-o-r-m-i-n-a, if you're unfamiliar.

PN207

THE COMMISSIONER: Thank you.

**** GARRY COMISARI XN MR DWYER
PN208

MR DWYER: Can you comment on the possibility of any job swaps?---When I was made aware of the redundancy I went to - in the same building where I work there's a service delivery manager who is in charge of the north coast. I went and saw him and said, "Look, Jim, this is what's happened, I've been made redundant, is there any chance that I can come back and work for you as jointer". Most of us designers were jointers before we were designers, that's the way we progressed through the company to become designers. I had a good reputation as a jointer so Jim said to me, "Look, I'll see what I can do, I think there's a couple of guys that want to go in the area and I'll get back to you on it". He did get back to me. He said, "Would you be prepared to work out of Grafton". I said, "That wouldn't be a problem". He came back a day or so later and said, "Look, mate, I'm sorry, I want you, there's other people that want to go but I've been to my managers and they say there's no job swaps available".

PN209

And that manager's name, do you know the names of the two managers?---Jim Wray.

PN210

Yes, and the manager, do you know which manager - - - ?---I believe it was John Bowman.

PN211

I would like to show you a document. Do you recognise that document?---Yes.

PN212

I wish to tender that document.

PN213

THE COMMISSIONER: I'll continue marking the documents.

EXHIBIT #CEPU7 EMAIL HEADED DESIGNERS

PN214

MR DWYER: This is an email?---This is an email which was sent to myself and a couple of other guys.

PN215

It was sent to you?---Yes.

PN216

Do you know when it was sent to you?---It was before we were told that there was no job swaps on offer so it was basically just if there was a process to remain with Telstra as a jointer I was told that probably the only way that that could happen is if I signed an AWA.

PN217

Did anything eventuate from this, do you know?---No.

**** GARRY COMISARI XN MR DWYER
PN218

The email says that -

PN219

Jim has asked me to provide copies of the AWA information to each of you.

PN220

Why were they - I think you've mentioned the question, just explain to me why were they considering an AWA?---Well, basically that was really if we could do a job swap that was the only thing that was on offer, was an AWA, possibly because when we were told of our redundancies we were asked whether we wanted to go through what's called the Telstra's jobs program. There was a form where we could elect to do that or not. I elected not to go through the Telstra jobs program because I was given a bit of advice from a colleague who was speaking to our two up manager who said that probably we'd be better off looking for the jobs ourselves and that we $4500 if we are made redundant anyway, otherwise you don't get the $4500 if you find a job. But yes, there was some ramification to that that I wasn't aware of having signed this form and ticked box A and not being eligible to go through the jobs program also made me ineligible to be what's called grandfathered or salary maintained if I did find a job.

PN221

Perhaps by way of explanation, I hope I don't - - -

PN222

THE COMMISSIONER: Yes, I follow.

PN223

MR DWYER: The agreement, Commissioner, has a provision called jobs program and please correct if I'm wrong, the employee can enter a jobs program where things are done to assist them and plus you've heard there's $4500.

PN224

THE COMMISSIONER: Yes.

PN225

MR DWYER: And the second part is - - -

PN226

THE COMMISSIONER: I made the variations.

PN227

MR DWYER: This has been always a very complex agreement all the way through and Mr Comisari has been referring to that.

PN228

The document says, just going back to it -

PN229

I can't give you the actual contract but the attached documents are the details that go with the AWA including an incentive plan and job points tables, the PowerPoint is the basic presentation that was given to all staff recently and included in the AWA information document that comes with all contracts and includes FAQs, frequently asked questions.

**** GARRY COMISARI XN MR DWYER
PN230

I'll just stop that quote there. Have you seen the PowerPoint?---I flicked through it, yes.

PN231

Attached to the document is what's called the zip file, AWA enclosed zip, did you look at those documents?---I did, I flicked through them. When the job swaps were off the table I didn't go into them in any great detail but I opened all the documents.

PN232

Commissioner, I've printed one copy of this and it's not my intention to go to anything within the document other than to these are the sorts of documents that were attached to the file. I will ask the witness to look at it. Does my friend has any objection to it?

PN233

THE COMMISSIONER: Show it to Mr Wood.

PN234

MR DWYER: I don't intend to go to any of it other than the fact that there are documents attached?---Yes, I've seen this, yes.

PN235

Then I tender those.

PN236

THE COMMISSIONER: Thank you.

EXHIBIT #CEPU8 DOCUMENT HEADED COMMUNICATION TECHNICIAN JOB POINT INCENTIVE PLAN

PN237

MR DWYER: Thank you, Commissioner.

PN238

There's a notation there, base salary $46,000, could you just explain what that meant to you and how that relates to - first question, what that meant to you?
---The base salary of 46,000 is a base which superannuation and redundancies and things like that would be worked out on. That's very detrimental to me given that job security in the company is not so good any more. To increase ways I need to increase productivity to get up to where I was which is about 60,000.

PN239

Thank you. Have you applied for other jobs within Telstra, if so, what have you done?---Because I want to stay in the local area, I've got family in the local area, I'm basically restricted to the area which I'm in. I did apply for a - there was a local storeman's position within the Telstra depot where I work. I applied for that position and got an interview. I did very well but missed out on the position, so that's the only position I've applied for.

**** GARRY COMISARI XN MR DWYER
PN240

Apart from Telstra internal jobs can you comment on any other staff working for Telstra in your office or in your area?---In the building where I work there's about 30 or 40, 50 perhaps contractors who work for a subcontracting firm who update electronic plans, Telstra's electronic plans and records, so there are jobs within that building do other work.

PN241

Have you applied for any of those jobs?---Yes, I applied and the positions are basically called full time casual, so again there is no holidays, no provisions for holidays and sick leave, that type of thing. Yes, I've applied for one at any rate, yes.

PN242

Do you know the conditions of the - - - ?---The conditions - - -

PN243

In terms of salary and ?---Okay. The hourly rate is around $20/21, thereabouts, an hour, sorry. As I say, no provisions for sick leave, for holidays, long service, anything like that and there are shifts. Like it's a night time shift and day time shift.

PN244

Just finally, how long have you worked for Telstra?---21 years and about four or five months.

PN245

Thank you. I have no further questions, Commissioner.

PN246

THE COMMISSIONER: Yes, Mr Wood.

<CROSS-EXAMINATION BY MR WOOD [11.58AM]

PN247

MR WOOD: Thank you, Commissioner.

PN248

Mr Comisari, you worked with another six designers - another five designers, six in total at Coffs Harbour?---That's correct.

PN249

And all of those positions were made redundant?---That's correct.

PN250

And you were told, weren't you, that there were other opportunities - I want to know what you did about those other opportunities but you were told there were other opportunities at Toowoomba, Sydney, Brisbane, Launceston and Newcastle, is that right?---That's correct.

PN251

And as I understand it what has happened has been that your role is to in effect check that the work that is to be done by contractors to extend the network is correct?---Yes, and also before - and also dissect the accuracy of our electronic plans so I go out and look at the existing infrastructure. Sometimes the plans are not up to date so I check that accuracy. I also have to deal with land access issues with councils, land owners and so on. So it's more than just drawing up plans for contractors to do the work.

**** GARRY COMISARI XXN MR WOOD
PN252

But you play a role of a middle person in between the customer and the contractor. The customer says I want some service, the contractor builds the service and you're there to facilitate the customer getting what he or she wants and enabling the contractor to do that job?---That's basically correct, yes.

PN253

And as I understand things, again you might not know this, but the network is growing more quickly in areas like Sydney and Brisbane where population centres are than in the country areas, is that fair?---Well, I'm not - - -

PN254

You don't know?---I don't really know the answer to that.

PN255

Okay. But you do know, don't you, that the upshot of this restructure is to in effect ensure that there are more designers in major population centres like Sydney and Newcastle and Brisbane?---That may be so but having zero in the country areas is also the upshot of it there isn't any - sorry, having - - -

PN256

That's right, that's right, and the design positions are removed from country areas and in fact there's a document which is exhibit CEPU4. I might just show the witness - you may not have seen that document before, Mr Comisari, because that was a document that was sent to the union on the same day that you were provided with a brief impact announcing the redundancies. But you do know that there are 48 positions at the designer level that have been removed from each of those regional areas identified as Albury, Armidale, Ballina, Bowral, ....., Dixon, Dubbo, East Maitland, Glen Innes, Grafton, Newcastle, Kelso, Leeton, Lismore, Nowra, Taree, Port Macquarie, ..... Toormina, Unanderra, Wagg and Wyong?
---Yes, the classifications CFW5 were actually CFW6 is our - - -

PN257

Sure. The classification for a designer is CFW5 but some people, for example in terms of you, are classified higher, you're a CFW6?---Six, that's correct.

PN258

And there are some CFW7s as well, or you don't know?---I’m not sure about that.

PN259

Okay. Now, you were provided with some information on that date, that is on
24 August 2006, were you not?---Some information?

PN260

Information about the restructure?---Yes.

PN261

You were given a pack of documents. I think you said that - I think you said that you - I don't have a note of this, but you looked at a PowerPoint presentation, is that right?---Yes, there was a PowerPoint presentation and a phone hook up at the same time. It started at 3 o'clock in the afternoon.

**** GARRY COMISARI XXN MR WOOD
PN262

3 o'clock in the afternoon, and that was 24 August?---Probably so.

PN263

You can't recall?---I can't recall.

PN264

I see. I will hand you this document and I'll hand a copy to my learned friend and copies to the Commission. I'm afraid I only have one of this, Commissioner.

PN265

THE COMMISSIONER: That's all right. Do you want that marked, Mr Wood?

PN266

MR WOOD: Yes, please, Commissioner.

PN267

THE COMMISSIONER: Is this the first exhibit for Telstra?

PN268

MR WOOD: I think there's one other.

PN269

MR DWYER: This is TELSTRA2.

PN270

THE COMMISSIONER: I'll rely upon you, Mr Dwyer.

EXHIBIT #TELSTRA2 REFERENCE PACK HEADED CAN PROVISION REVIEW

PN271

MR WOOD: Have you had a chance to have a look at that, Mr Comisari?---Yes, I've seen it.

PN272

Is that the pack you were provided with?---Yes, it looks the same.

PN273

Just have a look at it for a moment. Have you had a chance to look at it now,
Mr Comisari?---Yes, that's right.

PN274

And that's the pack you were provided. And you see there about nine pages in there's a map of Australia?---Yes, I see that now.

PN275

And it identifies where the current centres are and that they were going to be amalgamated into five, do you see that?---Yes, yes, I remember that map awfully well.

PN276

And that's what you were told?---That's correct.

PN277

And if you would turn over a few more pages you will see that there's a document headed What Does This Mean?---Yes.

**** GARRY COMISARI XXN MR WOOD
PN278

And there's a reference to a reduction in the CAN provisioning sites from 32 to five and there's a recruitment of 26 multi functional CFW6 positions for Queensland and recruitment of 16 multi functional CFW6 positions for New South Wales, I think mainly in Newcastle. I take it and tell me if I'm wrong and I mean no criticism about this, I take it you didn't apply for any of those positions?
---No, I didn't.

PN279

And presumably the reason you didn't do it was because it's a long way from Coffs Harbour, where you live?---That's correct. I've got family there and there's various reasons why I can't really leave.

PN280

Yes. And if you turn over the next two pages there's reference to information packs for staff in relation to entitlements will be forwarded in the coming days and I think you got one of those packs either on the 24th or two days later on the 26th, is that right?---That's correct, a couple of days later.

PN281

A couple of days later, and that pack provided information to you including information about the Telstra redundancy agreement?---Yes.

PN282

And it also provided you with a document which gave you a quote, if you like, on how much redundancy you would obtain?---That's correct, yes.

PN283

And do you recall how much that was?---Off the top of my head I don't recall. I think it was around 81,000.

PN284

81,000?---Yes. That's a guess.

PN285

Yes, that's fine. And I think you were provided with some information in this second pack about who to contact if you wanted further information about the restructure?---Yes, I think that's correct, yes.

PN286

And you were also provided information about the Telstra jobs program?---That's right.

PN287

And you were also provided information about an employee assistance program which provided counsellors to you and your family?---Yes.

PN288

And you will see the next dot point on that document talks about positions being advertised in career opportunities within the next month. You did see positions advertised in career opportunities?---That's correct.

**** GARRY COMISARI XXN MR WOOD
PN289

And I think you said that you applied for one of them but didn't get that job, is that right?---That's right. There was only one position in my local area which was a storeman's position.

PN290

Storeman?---Storeman position that was in the local depot. It was a few grades below me but to stay in the area I was willing to undertake that.

PN291

THE COMMISSIONER: You didn't get it?---I didn't get it. I got an interview and was told I did very well but the other guy was a little bit more experienced and he got the position.

PN292

Was that an outside person or a Telstra person?---No, these were only for Telstra people to apply for.

PN293

Internal?---Yes.

PN294

MR WOOD: And you I think a few days later, you provided a notification to Telstra saying that you did not want to take part in the Telstra jobs program?
---That's correct.

PN295

I will just provide that to you, Mr Comisari and provide a copy to the Commission?---Sorry, Commissioner, there's only one again.

PN296

THE COMMISSIONER: All right. Do you want me to mark that?

PN297

MR WOOD: Yes please, Commissioner.

EXHIBIT #TELSTRA3 ELECTION TO BE RETRENCHED BY GARRY COMISARI

PN298

MR WOOD: Mr Comisari, you filled this election document in because you'd chosen at that stage that is by 6 September to not participate in the full retrenchment process under the Telstra Redundancy Agreement 2002 including part or all of the Telstra Jobs Program?---That's basically correct.

PN299

Correct or incorrect?---That's correct, sorry, yes. May I add to that at all? All I say is that I probably wasn’t thinking 100 per cent correctly after it was a bit of shock to be after 21 odd years to be told I was no longer required so maybe I didn’t give it the full attention which I should have.

**** GARRY COMISARI XXN MR WOOD
PN300

It was some two weeks after you'd first been notified of the redundancy or the retrenchment process?---That's right.

PN301

You filled this in the day before the second election date of 7 September. If you had of filled it in after 7 September you would have only received $2500 but you received $4000 to $4500 to allow you to conduct your own job search program?
---I don’t actually - I haven’t received anything as yet.

PN302

I see. That's due to come to you on Thursday, is it?---Well, after you are made redundant then it comes to you.

PN303

Right?---In the meantime I've still been looking for jobs myself. I was just given advice that I was probably better off looking for a job myself and taking the $4500 if I wasn’t successful because I would be, you know, had my best interests at hear to look for a job rather than leaving it to someone else to look for a job for me. That was the advice I was given.

PN304

Who gave you that, Mr Comisari?---A fellow colleague told me.

PN305

A fellow colleague?---One of the other guys that was going redundant but he had been speaking to our two up manager which was Rhonda Taylor. She didn’t tell me directly but I was just speaking to a fellow colleague.

PN306

What was his name?---Tony Ensbey.

PN307

Tony Ensbey and he's a five designer?---That's correct, yes.

PN308

And he told you that it was his view that you were better off taking the $4500?
---Yes, having spoken to Rhonda he - - -

PN309

He told you that he'd spoken to Rhonda?---That's correct.

PN310

Is that $4500 in addition to the $81000 that you will receive on Thursday?---Yes.

PN311

It is, all right. Are there any additional amounts that you'll receive on Thursday apart that 81000 and this $4500 that you no of?---Not that I know of.

PN312

Right?---And that includes unused long service leave and holidays.

**** GARRY COMISARI XXN MR WOOD
PN313

As I understand things after you filled that document in about two weeks afterwards you provided by letter dated 18 September 2006 a series of complaints about the process. Can I hand you up a document?

PN314

THE COMMISSIONER: Yes. That's fine.

EXHIBIT #TELSTRA4 LETTER FROM G. COMISARI TO PETER GARTH DATED 18/09/2006

PN315

MR WOOD: This letter, I think, is in exactly the same form as nine or ten other letters that were received by Telstra from amongst the 48 employees who were to be the subject of the restructure around 18, 19, 20 September of this year. Is this a document that you prepared, Mr Comisari, or did someone from the union prepare that and ask you to sign that?---No, the union prepared it and we looked at it and I was happy for them to represent me.

PN316

Sure. Who is, we looked at it?---Sorry?

PN317

Who is, we looked - you said we looked at that, who is that?---Well, the six designers. We've all - - -

PN318

I see.?---Yes.

PN319

So all six of you met and had a look at a letter that had been prepared by the union?---Well, they were all sent to us individually.

PN320

Right?---We read them.

PN321

Did you read them together?---Well, not initially.

PN322

No?---I read mine and then just discussed it later on.

PN323

Discussed it with each of the others in the group?---I don’t know whether we got in together within a group, all six of us, but certainly one or two of us might have got together and discussed various parts of it.

PN324

Who do you recall yourself having discussions with?---Certainly. In my cubicle there's four of us sitting together. Dale Burgess I would have discussed it with. Tony Ensbey. Perhaps, Mick, Mick Pevenski.

**** GARRY COMISARI XXN MR WOOD
PN325

How do I spell that second name?---P-e-v-i-n-s-k-i.

PN326

Yes?---Sorry.

PN327

Sorry and anyone else?---Dale Burgess.

PN328

Yes and Tony Ensbey?---Tony Ensbey.

PN329

And that's it?---Yes. Certainly in any detail those would have been the three that I would have discussed it with. There's two other guys in our depot who work in the next cubicle which I don’t quite so much to do with. I certainly wouldn’t have sat down and discussed it in too much detail with those other two guys.

PN330

Did you - I think it follows from what you've said but tell me if I'm wrong. Did you - were you seriously in dispute with Telstra over the application of all those clauses of the agreement at that stage or was this something that you'd been told to sign by the union because that would get you to the Commission?---No. When I looked at all the details they're relevant. We could go through them all and they are relevant. The legal clauses in the second part, I don’t understand those and I'm happy for the union to represent me there.

PN331

I'm sorry, that's was a bit on - I should have been a bit more specific,
Mr Comisari. From:

PN332

I am in dispute with Telstra and its application and the following clauses of the redundancy agreement

PN333

and there's a whole lot of them referred to?---Yes.

PN334

That's something you left to the union?---That's correct.

PN335

The bit that you looked at and it was a dispute from your own perspective or to the five dot points immediately above that?---That's correct.

PN336

Also am I right to say the five matters labelled A to E on the second page or is that again the form you lay of principles?---I've read that and I agree with what it says.

PN337

That was actually something you were concerned about A to E?---That's correct.

**** GARRY COMISARI XXN MR WOOD
PN338

THE COMMISSIONER: Who's Mr Garth?---Sorry?

PN339

Who is Mr Garth, Peter Garth?---Peter Garth is my one up manager, Commissioner, he' in charge of about around 20 of us on the northern part of the state.

PN340

THE COMMISSIONER: All right. Thank you.

PN341

MR WOOD: As I understand it, Mr Comisari, you had a discussion with
Mr Garth about four days after you provided this letter to him. That is on
22 September?---Yes, that's correct.

PN342

Then you had a discussion with your two up manager on 6 October?---That's probably right.

PN343

Who is two up manager?---That's Rhonda Taylor.

PN344

Rhonda Taylor of course?---Rhonda Lee Taylor.

PN345

THE COMMISSIONER: What was the discussion with Mr Garth?---Basically about these issues. I particularly was upset that give that always one of the better jointer in whatever depot I was in that a job swap wouldn’t be available. I just couldn’t see the sense that they - - -

PN346

MR WOOD: What was response?---He agreed with me. He said, he wished there' was something he could do. Thank you.

PN347

You had a discussion with Rhonda Taylor on 6 October and then you had a discussion on 4 October, that is last Thursday with John Wood, is that right?
---That's correct.

PN348

Now, if we get to the stage of calling evidence about what went on in those meetings, Mr Comisari, what will be said is that you didn’t really identify at any of those discussions that is with Mr Garth or Ms Taylor or Mr Wood, exactly what out of this list on Telstra 4 you were concerned about, apart from losing your job?---And the opportunity - or lack of opportunity to have the job swapped.

PN349

You say you raised a local opportunity to have a job spot?---Yes.

**** GARRY COMISARI XXN MR WOOD
PN350

Did you do that we Mr Garth, or Ms Taylor or Mr Wood or with all three?---All three.

PN351

Apart from the loss of your job and the lack of opportunity of a job swap were those the only two things that you raised in those discussions with Mr Garth and Ms Taylor and Mr Wood?---From memory I was probably a bit disappointed with the way we were told at 3 o'clock in the afternoon on a phone hook up. I thought it could have been done a little better with a bit more compassion to people. There's a lot of these other designers who are one man stations so I think we did bring that up.

PN352

I'm really just talking about your conversations. These were separate conversations. You didn’t have them with Mr Burgess or Mr Ensbey, these are conversations you had with your particular manager, one up, two up, three up?
---Yes, I don’t know whether I brought it up with Mr Woods. I'm sure I did with Peter Garth and Rhonda Taylor. I can't remember whether I brought it up with
Mr Woods. I was more focusing on job swaps by that stage.

PN353

I see. So is it fair to say that those three meetings concentrated on two issues, the loss of the job and the opportunity for a job swap and peripherally on a third issue that is the way that you were told about the restructure?---That's pretty much correct. I haven’t got a photographic memory but it was along those lines.

PN354

And as far as you were concerned you didn’t raise these issues, that is the fact that you were in dispute with Telstra over the application of the following clause of the redundancy agreement and each of them are identified, you left that to the union to do?---Yes. I agree with what - the union had given me advice and I'm happy for them to represent me.

PN355

I understand that. In terms of your position on Friday and Monday of this week, do I take it, I think, you said you'd applied for a job as I think you said it was a full time casual with a contractor that works in the same building in which you currently work in Coffs Harbour?---That's correct.

PN356

Have you been given an offer of such a job?---Yes.

PN357

Have you accepted that offer?---I've said I will - I've told them that if Telstra will give me a job swap then I'm going to take the Telstra offer otherwise if I'm out of a job come Thursday then I will certainly come and see them and hopefully the offer is still there.

**** GARRY COMISARI XXN MR WOOD
PN358

And was that offer to start on Friday or on Monday?---The next Monday.

PN359

Next Monday, so that would be the 23rd?---23rd, that's correct

PN360

Has this offer been provided to you in writing?---No.

PN361

It was a verbal offer?---Yes.

PN362

To start on Monday?---That correct.

PN363

The 23rd. Excuse me, Commissioner. I just want to ask you a question about exhibit CEPU7 which is an undated, sorry, it is undated, an undated email, I think it is, which has been printed by Mr Dwyer yesterday. I'm sorry, yes, yesterday
16 October. Do you have a copy of that exhibit in front of you, Mr Comisari?---I think it was given to me, yes.

PN364

I don’t quite understand where this document came from. Can you identify?---I spoke to the - as I explained before, when I was entitled to redundancy, I spoke to the local service delivery manager and asked him whether there would be any opportunity of going back and becoming a jointer again - - -

PN365

The service delivery manager is Mr Garth?---No, Jim Wray.

PN366

Sorry?---Jim Wray his name is.

PN367

Tim?---Sorry, Jim, J-i-m Wray W-r-a-y.

PN368

And you asked him whether there would be the opportunity to work?---Work in his business which is basically install and involves taking care of the network.

PN369

So that's a traditional techi's role?---Technician, joiner, yes, same thought of thing, yes.

PN370

You'll just have to - - -?---Sorry.

PN371

I'm not as familiar as everyone else in the room with the Telstra acronyms and what's the difference between them?---I think they are pretty much called technicians these days but in days gone by a jointer was like any outside worker who'd work out in the cables, more outside. Technicians were basically working in within the exchange. These days its not like that they're all - it's multi functional, multi skilled and we're all called technicians. So, sorry, yes, sir, a technician would be.

**** GARRY COMISARI XXN MR WOOD
PN372

So you were asking whether there were any technicians roles going?---That's correct.

PN373

I see. What did he say to you?---He said he'd see what he could find out for me. He thought there may have been a couple of guys that he had working for him that wanted to leave the company, take redundancy. He'd see whether he could arrange a job swap.

PN374

I see. He came back to you and said he wasn’t able to arrange a job swap, is that right?---That's correct, he said unfortunately. Sorry, not that was no-one to swap with just that the processes didn’t allow him to - he went to his manager to ask the question and he was told that the processes didn’t allow for a job swap to take place even though he would like to, to have me onboard.

PN375

I see. I don’t understand the significance then of this document, CPU7, why was he giving you this document if he came back to you and said he wasn’t able to arrange a job swap?---Well, that came between the time when I asked for a job with him and between then and when he told me that the job swap wasn’t going to be available. That came through just to - basically I was given the indication that if a job swap was going to take place then I would have to sign an AWA for it to happen.

PN376

I see?---That came between the time of a proposed job offer and to the time when the offer was off the table.

PN377

Yes. So there was never any offer and this information was provided to you and the other five designers at Coffs Harbour?---Yes. I think any one anyone of us had expressed an interest was given this document, this email.

PN378

Do you know how many people were in that category?---The ones that I know, probably four, perhaps five.

PN379

And that's Mr Burgess?---Yes.

PN380

Mr Ensbey?---Yes.

PN381

Mr Pevinski?---Yes.

PN382

And who else?---Neville Mathers. He's that fellow from Grafton.

**** GARRY COMISARI XXN MR WOOD
PN383

Yes?---And myself.

PN384

THE COMMISSIONER: Do you have many more questions to be cross-examined?

PN385

MR WOOD: I don’t think so.

PN386

THE COMMISSIONER: I'm just going to have to adjourn for 10 minutes, that's all.

PN387

MR DWYER: Commissioner, we have altered the flights - Mr Comisari had too, so we have no time limits, restrictions.

PN388

MR WOOD: Commissioner, I think that I don’t - perhaps I can wait until we resume before I say what I was going to say.

PN389

THE COMMISSIONER: There's one thing that occurred to me and I'd ask you to give it some consideration over the luncheon - I'll be back in 10 minutes, I hesitate to say luncheon adjournment for 10 minutes but I'll be back in 10 minutes. Listening to the evidence I'm wondering the level of evidence that we're going to need about this and Mr Dwyer I ask you the question, is this a case about job swaps? If it's a case about job swaps there might be some agreement as to the nature of the evidence that could be called so that we can reach certain agreement as to facts rather than you calling another witness saying, I've asked for a job swap and I didn’t get one.

PN390

If it's a case about job swaps and whether or not job swaps are available under the agreement consistent with its proper application then let's have that debate.

PN391

MR DWYER: Yes, Commissioner, I'm not trying to call everybody.

PN392

THE COMMISSIONER: No, no.

PN393

MR DWYER: Mr Fred - - -

PN394

THE COMMISSIONER: But you might get agreement with Mr Wood.

PN395

MR DWYER: His evidence would be very similar to the others.

**** GARRY COMISARI XXN MR WOOD
PN396

THE COMMISSIONER: Yes, I suspected so.

PN397

MR DWYER: I would be shorter once the first witness is through - it would be very - I'll trying not to repeat the evidence here.

PN398

THE COMMISSIONER: No, no, but you might get agreement with Mr Wood that the evidence would disclose that employees have sought job swaps and that hasn’t been agreed.

PN399

MR DWYER: Yes.

PN400

THE COMMISSIONER: Does that - is that a measure to mitigate the fix against redundancy? Is that a measure that's consistent with the agreement and we could have a debate about those matters.

PN401

MR DWYER: The case is very strongly on the job swaps, there are a few other issues where there are other jobs.

PN402

THE COMMISSIONER: Contractors and the like.

PN403

MR DWYER: Yes.

PN404

THE COMMISSIONER: Yes, I understand. I'll adjourn for 10 minutes.

PN405

MR DWYER: Thank you.

<SHORT ADJOURNMENT [12.34PM]
<RESUMED [12.44PM]

PN406

THE COMMISSIONER: Probably the first and last time I'll need to judge both in and out of court. Yes, Mr Wood?

PN407

MR WOOD: Mr Comisari, have you got exhibit CP3 in front of you which is the advertisement?---The add, yes.

PN408

That's an advertisement for positions in another area of Telstra?---That's correct.

PN409

Although those jobs, although they're in another functional area of Telstra would be jobs in the same building that you occupy?---That's correct.

**** GARRY COMISARI XXN MR WOOD
PN410

The date of those adds was 8 July 2006 which was about six weeks before you were notified of the restructure in your part of the business?---That's right.

PN411

I think you said that you didn’t apply for those jobs because there'd been no restructure announced?---Well, that's correct, I didn’t know that I was going to be made redundant.

PN412

No. In fact you may not know this and tell me if you don’t know, you may not know that those jobs, that applications for those jobs referred to in CPEU3 in delivery management - - -

PN413

MR DWYER: Sorry. You were going to put a proposition to him and it sounds to be a bit like evidence in that sense. You might ask the - - -

PN414

THE COMMISSIONER: Well, let's see what he puts.

PN415

MR DWYER: MR WOOD: Well, for example dates that when things happened. The witness may not know, it might be better to ask the witness if he knows the date rather than suggest dates.
THE COMMISSIONER: Well, he can suggest it if he wants to in cross-examination.

PN416

MR WOOD: Mr Comisari, feel free to say you don’t if you don’t know but I put to you that the applications for the delivery management roles which you have described in CPEU3, closed on 21 July 2006. Do you know if that's right or not?
---I don’t know the exact dates I must admit but the application was closed before our announcement of redundancy was made.

PN417

What I'm putting to you, it was closed about a month before any announcement of a restructure within the CAN provisioning area. Is that right or you just don’t know?---Well, that make sense.

PN418

Again, you might not know this and tell me if you don’t know, Mr Comisari, but do you know how many roles were offered in delivery management in Coffs Harbour?---I believe it was about six. I've got friends who are contractors up there and they said there was about six positions.

PN419

And it could be seven?---It could be seven.

**** GARRY COMISARI XXN MR WOOD
PN420

Do you know when offers were made for those six or seven positions and when they were accepted?---No, I don’t.

PN421

Do you know whether those jobs offers were made and accepted prior to the announcement of the restructure on 24 August 2006 within CAN provisioning?
--- I don’t know for sure. I assumed that they were certainly offered to the external people.

PN422

Yes, but you don’t know when they were offered and when they were accepted?
---Only through word of mouth that they were offered so I don’t know for sure.

PN423

I put to you that those seven positions within delivery management which were referred to in CPEU3 were offered and accepted prior to the announcement of the restructure in CAN provisioning, do you know whether that's right or wrong?
---That sounds correct to me

PN424

The consequence of that, Mr Comisari, is isn’t it, that those positions were not available for a job swap or as commensurate positions once the restructure within CAN provisioning was announced and to effect?---Well, those, yes - basically I didn’t apply for those positions even they were available because of the assumptions I made which I explained earlier.

PN425

I don’t want to be too difficult and aggressive, Mr Comisari, but I take it your answering my questions, yes?---Could you just repeat it again, sorry.

PN426

Those positions that is the seven positions within delivery management were not available for job swaps or as commensurate roles after the announcement of the restructure in CAN provisioning?---That's right.

PN427

THE COMMISSIONER: Do you have the date upon which those jobs were accepted?

PN428

MR WOOD: Yes, Commissioner.

PN429

THE COMMISSIONER: I think we're going from six weeks to one month.

PN430

MR WOOD: Yes, my instructions are that they were offered and accepted in not exactly - my instructions are not exactly precise but I think on the 22nd and 23 August that is but one to two days prior to the announcement of the restructure. I'd have to confirm that because there might be - - -

**** GARRY COMISARI XXN MR WOOD
PN431

Mr Comisari, I want to know ask you a question about the CEPU7 again which is the email which set out the conditions upon which technicians were usually employed. When you gave - - -

PN432

THE COMMISSIONER: Sorry - - -

PN433

MR WOOD: Email.

PN434

THE COMMISSIONER: That email, sorry, yes.

PN435

MR WOOD: I think just before the short adjournment, Mr Comisari, you accepted that you looked at or asked for a job swap into one of those positions, is that correct?---Yes, I enquired about a job swap.

PN436

And Mr Wray told you that one wasn’t available?---Yes, he eventually, yes, he did come back and say the processes wouldn’t allow him to offer me a job.

PN437

I think in you evidence you said something along the lines of, the only way I could stay with Telstra is to sign an AWA. I take it that evidence, what you're trying to say by that evidence is to say that in relation to that job as technician, if a job swap was available that those roles were on the conditions set out in the email, that is employment on an AWA basis?---That's right.

PN438

You weren't trying to make a comment of any broader significance about any other roles within Telstra?---No.

PN439

For example, that storeman role that you went for was a role that was on whatever conditions it was on?---That's right

PN440

I just want to ask you know about your understanding of the grandfathering and the salary maintenance rules under the redundancy agreement. It might be that I just misunderstood your evidence Mr Comisari, but I understood that there was salary maintenance if you did what you chose not to do that is to enter into the program under the agreement?---That's correct.

PN441

Is that right?---That's correct. I must admit I took some bad advice and what you say is correct.

PN442

Yes. So if you had of selected to participate in the jobs, the Telstra jobs program, rather than take the $4500 then if you had of been found a job you would have had your salary maintained even if that job had of been in the lower level?
---That's correct but once again I haven’t got the $4500 that’s only because I agreed - - -

**** GARRY COMISARI XXN MR WOOD
PN443

No, I understand, I'm sorry. I didn’t mean to do it in that regard. You anticipate that you're going to receive it on Thursday or Friday?---If I couldn’t find a job and I was trying very hard to find one on my own account.

PN444

Yes. I understand. I also want to ask you a question about CPEU8, well, just before I do, do you know out of the group of 48, again you might not know this. How many employees chose to participate in the Telstra jobs program and how many chose to take the $4500 or $2500?---I got no idea.

PN445

I see. Have you got exhibit CPEU8 in front of you, Mr Comisari?

PN446

THE COMMISSIONER: That's the large document.

PN447

MR WOOD: I don’t think you will, Mr Comisari, there's only one.

PN448

THE COMMISSIONER: I'll hand it down?---Thank you.

PN449

MR WOOD: This might be my ignorance, Mr Comisari, but I didn’t follow how that document was provided to you and on what basis. Can you explain?---It was sent just as an email between the time that I spoke to the local area manager about a job swap and going back to work as a field technician. Between that time and the time when he came back and said there was no process available for him to offer me a job.

PN450

I see. So this is another document which describes the usual conditions under which technicians work in the area, is that right?---This is not the usual conditions. This is - most technicians I don’t think are on an AWA but if I was want to sign an AWA these are the conditions, yes.

PN451

I see. These were the usual conditions or were these - how was it explained to you, that the conditions that would be the conditions under which you would operate?---Basically Jim just said that if he was - if there was any chance of a job swap then more than likely I would have to sign an AWA and these were the conditions that - he told me to have a look at this and just be aware of them.

PN452

Okay. Commissioner, I think that's all I need to ask Mr Comisari in cross-examination at this stage. It may be that if the relief that is ultimately sought is significantly different from that which is currently sought then I might have to ask the Commission to recall Mr Comisari but at this stage given my friend is pressing the stay, the remedy of a stay, I don’t think I have anything further to ask
Mr Comisari on that.

**** GARRY COMISARI XXN MR WOOD
PN453

THE COMMISSIONER: Thank you, Mr Wood. Mr Dwyer?

PN454

MR DWYER: There's no further questions, Commissioner.

PN455

THE COMMISSIONER: Thank you for your evidence?---Thank you, Commissioner.

<THE WITNESS WITHDREW

PN456

MR DWYER: Commissioner, I'd like to call Mr Dale Burgess.

PN457

MR WOOD: Commissioner, before Mr Dwyer does, we think from our prospective there might be some force in the observations about trying to truncate the factual dispute us given that the relief - well, I think Mr Dwyer understands what I'm going to say about the power of the Commission to grant relief he seeks and about the factual commonality between the witnesses. If Mr Dwyer was able to suggest that there was some dispute arising from some clause of the agreement because of a failure to provide job swaps of some description it means that we haven’t exactly got to the nature of what they are.

PN458

It may be that that issue can be resolved in a way that doesn't need to involve the calling of further witness evidence and of course I don’t want to railroad
Mr Dwyer.

PN459

THE COMMISSIONER: No.

PN460

MR WOOD: But I'm just indicating that the tentative view that you expressed, Commissioner, that found my client is getting support from outside the bar table.

PN461

THE COMMISSIONER: Mr Dwyer?

PN462

MR DWYER: With Mr Burgess I was going to go to absolutely the advertisement and there's a similar story there. I don’t think we would be in dispute over that. In terms of job swaps I think his evidence is similar that we'd be able to - we're saying that job swaps are not available.

PN463

THE COMMISSIONER: You're saying it's a matter of policy the court's got nothing to do with it.

PN464

MR DWYER: It's a matter of policy and they were told at the front ..... job swap is not available so this - people had no initiative not withstanding some did. There was no real incentive to go and look for job swaps. That's the thrust of that evidence. The only other thing I just am intrigued about it and I think there may be just slightly evidence and that's to do with that email on the AWA job which would be the only area I would perhaps asked him about.

PN465

THE COMMISSIONER: Well, that can either be agreed or not, can't it? If, for example - - -

PN466

MR DWYER: Well, perhaps if I put it this way. His evidence as I understand it would be that Mr Ray and Mr Wood communicated that there may be jobs available. In fact, his evidence is slightly different to what he was told to, or to what was told - - -

PN467

THE COMMISSIONER: Well, the evidence of this witness was that they couldn’t - as the procedure went on nobody could, nobody could authorise jobs swap.

PN468

MR DWYER: Yes.

PN469

THE COMMISSIONER: That's as I understood.

PN470

MR DWYER: Yes.

PN471

THE COMMISSIONER: Is that what you wanted to get from that witness?

PN472

MR DWYER: He has slightly different statements or - I would like to just call him on that. I can't say, obviously I can't say what he's going to say in the box exactly. but as it's been accounted to me its just slightly different and if I could just ask him on that narrow point?

PN473

THE COMMISSIONER: All right. We'll do that but then I think we might like to see whether or not the issues, the evidences, what issues do you want to agitate and if it’s a question of saying, well I know the agreement has certain clauses which give rise to the question as to whether or not job swaps are consistent with the proper application of the agreement.

PN474

MR DWYER: Well, I certainly want to come to that obviously. In terms of
Mr Griffiths, again evidence is slightly different. She does have a couple of people in this town of Albury at his level, one at his level, one at a grade below and his evidence as recounted to me would be these people are prepared to swap with him.

PN475

THE COMMISSIONER: Well, let me ask Mr Wood. Mr Wood, do you challenge the proposition that's sought to be advance by the union that is a matter of policies, job swaps will not be considered in relation to redundancy?

PN476

MR WOOD: Formally, yes, Commissioner, in the sense that there's no policy and in some situations exceptional circumstances job swaps should be countenanced but there's no obligation under the agreement to do it and it's a general practice and perhaps even in the situation of these three individuals job swaps were sought and rejected. I know that's sort of some legalistic way of answering that question.

PN477

THE COMMISSIONER: No, no, that's all right. Are you prepared to concede for the purposes of the argument that job swaps may have been available?

PN478

MR WOOD: Commissioner, we'd be prepared to concede for the purposes of the reason that we're here today that is an application for a stay, that fact. It might be that if some other relief is sought then we would have to go into evidence about that fact but if its just on the question of whether or not a stay should be granted then we would be prepared to concede that - - -

PN479

THE COMMISSIONER: But if an order is sought to actually bring that about there might be - - -

PN480

MR WOOD: Then we'd have to go into it and look at the reasons why one wasn’t available, what the other options were, all that sort of that material to get the underpinning of the position as it were.

PN481

THE COMMISSIONER: But you'd be content to argue that job swaps, well, for example, is not a measure to avert the proposed retrenchment?

PN482

MR WOOD: Commissioner, what we'd be prepared to argue today is that - - -

PN483

THE COMMISSIONER: I'm making an assumption here as to an argument that will be put against you, but I don't think there's any surprises.

PN484

MR WOOD: I think, Commissioner, the clause that would be relied upon is a consultation clause, consult about measures to avoid.

PN485

THE COMMISSIONER: Yes.

PN486

MR WOOD: And then there'd be an issue about - - -

PN487

THE COMMISSIONER: Or whether it's genuinely on the table.

PN488

MR WOOD: That's correct, that's right, what the level of consultation is and what the obligations there are. But for the purposes of today we'd be prepared to say that it doesn't matter whether or not there is a dispute over that because the relief that's sought can't be granted. So for those purposes it doesn't really matter if there's a finding in that regard because the relief can't be granted. If some other relief is sought, well, then we'd have to deal with the case in some other way.

PN489

THE COMMISSIONER: Well, let's assume you're right on the relief, in terms of the Commission being able to make an order that has efficacy.

PN490

MR WOOD: Yes.

PN491

THE COMMISSIONER: Does your position remain the same if the focus is on whether or not the agreement in its terms contemplates or doesn't contemplate the employer considering genuinely job swaps?

PN492

MR WOOD: Our position would be that the previous agreement had that obligation. This agreement doesn't have that obligation. But the argument that would be put against us is that the general obligation in that agreement would cover what was a specific obligation in the previous agreement. Now, of course we would argue the converse.

PN493

THE COMMISSIONER: This is not barren ground.

PN494

MR WOOD: I'd rather imagine that, Commissioner. But the point is, if we're going to get into a form of relief which undoes what is being done and requires for some or all of these employees that some measures are put in place after the termination, which is, we would accept, a possibility on the way in which the dispute is progressing, then we would have to put in the evidence to explain what the policy is, explain how it was applied, explain what the other positions were and explain why in these circumstances the position that was adopted was adopted, otherwise it just becomes a dispute where only one set of the facts are before the Commission.

PN495

THE COMMISSIONER: Now that's why I was wondering whether there could be agreed facts in terms of evidence and to determine that question.

PN496

MR WOOD: There could be, Commissioner.

PN497

THE COMMISSIONER: But I don't want to mislead you or for you to misunderstand me. I'm not just talking about the relief that's sought now. I'm talking about whether or not a determination is made by the Commission that says X, which then leaves it open, should the union be successful, to seek to vitiate what you've done and take proceedings in another place to do that.

PN498

MR WOOD: Then we'd have to - I couldn't make the concessions that I was indicating. The reason we're here today is to deal with application that was made some time ago, and there were orders made last Friday requiring the applicants to indicate what they want to hear on Tuesday. And they've done that and we're here to deal with that, and we've tried as best we can to deal with that matter. If the matter is pitched on a somewhat broader basis, well, then we'd have to deal with that if and when that's done. Sometimes natural justice is waved merely as a sort of flag for delay, but we've been as accommodating as I think we could be in the circumstances to the rights of the applicant to bring a case and to deal with the case as the applicants see fit, and to protect the respondent's rights to respond to it.

PN499

THE COMMISSIONER: But if you're right about the Commission's inability to grant particular relief prior to hearing and determining the matter, then the only way the clause can have some work to do is that it's heard and determined prior to the termination.

PN500

MR WOOD: No, Commissioner. The clause can have work to do after the termination.

PN501

THE COMMISSIONER: Where's the dispute?

PN502

MR WOOD: The dispute is the dispute that arose over the application of the agreement which is being processed through the agreement, that is, that - - -

PN503

THE COMMISSIONER: So you wouldn't raise any issue about there no longer being an employee and therefore there's no dispute?

PN504

MR WOOD: Just excuse me for a moment, Commissioner.

PN505

THE COMMISSIONER: Of course.

PN506

MR WOOD: I can't say that on instructions we would concede that, Commissioner. We just have to - - -

PN507

THE COMMISSIONER: Well, it follows doesn't it that unless the proposition that I put to you, that we're looking at whether or not job swaps form a part of the agreement, unless that's determined before the termination occurs then there's no work to do for the clause?

PN508

MR WOOD: I wouldn't - - -

PN509

THE COMMISSIONER: I mean, the Full Bench dangled something and said it doesn't mean that we're powerless after the event, but you just indicated to me that in your view we may be.

PN510

MR WOOD: No, I didn't mean to be that strong, Commissioner. I just didn't want to concede - - -

PN511

THE COMMISSIONER: I said may.

PN512

MR WOOD: I'm sorry, I didn't want to concede that that was the position, that we wouldn't object.

PN513

THE COMMISSIONER: No, but you'd reserved the right to argue the jurisdiction of the Commission in the absence of a live candidate.

PN514

MR WOOD: I think it's fair to say as instructed, Commissioner, that we'd reserve all legal points available. I think the position would be that we don't want to make that concession, though we would understand the force of what you've said, that is, the force of the primary proposition you put and not the second one, that is, that there is a power to resolve disputes over the application of the agreement. It would be unusual, but it may be the case that the power to resolve the dispute does not extend beyond the termination of the employees. Now, I say that would be unusual without going to the text of the document because of the decision that the Full Bench has made. Because if they say there's no power to restrain the terminations, and if it turns out there's no power to do anything after the event, well, then that part of the dispute settlement function has got very little work to do. But I simply make that point, Commissioner.

PN515

All we can to is really deal with what's dished up. We can't, as it were, be expected to deal on the run with applications that we haven't been given notice of and we haven't been given an opportunity to respond to in a fair time, having regard to all the circumstances. And that's all that I think we'd want to say about that point. But we don't agree with the secondary point though, that there must be some power to deal with the issue prior to termination, because that's exactly what the Full Bench said you can't do.

PN516

THE COMMISSIONER: Say again.

PN517

MR WOOD: There must be some power to - sorry, that was too strong. There may be power to deal with the dispute prior to termination. That deal is a very concept. There's no power in so dealing to restrain the terminations.

PN518

THE COMMISSIONER: To restrain the terminations.

PN519

MR WOOD: Yes, that's right. And if there was some other relief that was proposed other than restraining the terminations it may be that that can be determined very shortly.

PN520

THE COMMISSIONER: Yes. But going back, and I'm not critical to the relief that's sought in this case, and if the relief that was sought was simply a determination by the Commission as to whether or not the agreement encompasses a duty or an obligation to look at job swaps in a genuine way, if that was the relief sought, are we in a position today to hear and determine that question?

PN521

MR WOOD: I wouldn't have thought so, Commissioner, because that sort of question has to be anchored in the facts, that is, it's not as simple as is there such a duty? It's, is there such a duty and does it apply in the circumstances of this case, that is, this particular dispute involving these one or two or three or four employees?

PN522

THE COMMISSIONER: And can we deal with that question between now and Thursday?

PN523

MR WOOD: That question of whether such an obligation arises and what should be done?

PN524

THE COMMISSIONER: Yes. Not necessarily what should be done - that might be a secondary question - but whether or not an obligation arises.

PN525

MR WOOD: Commissioner, could I take some instructions on that?

PN526

THE COMMISSIONER: Yes, I'm happy to do that.

PN527

MR DWYER: Commissioner, I - - -

PN528

THE COMMISSIONER: Yes, you've got another witness.

PN529

MR DWYER: We're not able to change flights so we've got to - - -

PN530

THE COMMISSIONER: What flight is he on?

PN531

MR DWYER: 2.30. That would mean they'd need to leave here about 1.45 at the very latest. And I recognise what my learned friend is saying, we would need to have them here should that occur. In terms of what my friend is saying, we really don't want to leave any stone unturned to try to save these jobs obviously. And we say - you talk about job swaps. We say a job swap is a viable, practical and economical and reasonable way to deal with or to mitigate the effects of redundancy. They've talked about jurisdiction, and we say to rule that out because of policy, and the witnesses will say, and the document says it, the documents will say it is a policy not to have redundancies. We say that robbed us of our opportunity, that robbed us of our genuine opportunity to consult and to mitigate. And I'm stressing the word opportunity, the fact that that is ruled out, robbed us of a reasonable, genuine, practical opportunity. That's the key.

PN532

Now, we would then take the argument to this. The process hasn't been followed in the broad sense. Now, whether that can trigger a stay is one thing. If not, orders to the effect that that opportunity was taken away from stage one of the process, it might allow you to make an order or a finding that stage one, two and three were defective of hadn't occurred along the way, which the practical result of that is that Telstra would need to go back and look at it. Should you make those findings Telstra would need to go back and make the same and go through those steps.

PN533

THE COMMISSIONER: But bear in mind what Mr Wood said to me. Mr Wood said he was only cross-examining on the basis of the relief that you seek.

PN534

MR DWYER: Yes.

PN535

THE COMMISSIONER: And the relief that he says you seek now is an order restraining the termination of these persons. He said clearly to me that if there is some other proposition such as the question that I floated, then he's reserved his rights about re cross-examination of the last witness.

PN536

MR DWYER: Yes.

PN537

THE COMMISSIONER: And he would need to call evidence as well.

PN538

MR DWYER: I understood he was calling evidence.

PN539

THE COMMISSIONER: So how does your next witness help me decide whether or not to stay the terminations given that Mr Wood is prepared to concede for the purposes of that relief and that relief only, that a job swap was sought and refused?

PN540

MR DWYER: Yes. Well, we can do that. But if we fail on that point, in the alternative we will be seeking some other form that we've indicated in the earlier orders, some other form of relief that may allow this process to be done properly.

PN541

THE COMMISSIONER: Why don't I just adjourn for five minutes to allow you to reflect on what you want?

PN542

MR DWYER: Yes, thank you.

PN543

THE COMMISSIONER: Mr Wood can also reflect, and if we need to hear short evidence on that point, that the job swap was asked for, the job swap was refused, for the relief that you seek only, namely, to have an order issue restraining the company from terminating, then we could do that. I've raised broader questions.

PN544

MR DWYER: Yes. I think you said the job swap was asked and refused. The real question was the policy didn't allow any job swaps, because in some cases our members did actively chase job swaps, but because of the - - -

PN545

THE COMMISSIONER: But that's something evidence might have to be called on, these one up manager and two up managers, their authorities to do that, what information they have in their mind that allows them to search for job swaps, the dispute settlement process, for it to be genuine, do they genuinely have opportunities to mitigate the effect? I mean, those are the sorts of issues that would have to be ventilated at a corporate level, if I can put it loosely, together with some agreed facts about evidence, or evidence itself. I mean, if the one up manager said yes, I'm sorry but a job swap is not viable in these circumstances, rather than, I'm sorry, I can't do it, that evidence wasn't challenged.

PN546

MR DWYER: No.

PN547

THE COMMISSIONER: I'll give you an opportunity to reflect. We'll adjourn for 10 minutes.

PN548

MR DWYER: Okay, thank you.

<SHORT ADJOURNMENT [1.22PM]
<RESUMED [1.36PM]

PN549

THE COMMISSIONER: Mr Dwyer, what do you want to do?

PN550

MR DWYER: The situation, just to clarify, I mean, the order that we're seeking, if I could put it simply, seeks a stay, and for the purposes of that order my understanding is - correct me if I'm wrong - Telstra is prepared to concede that there is a policy that job swaps are not allowed.

PN551

THE COMMISSIONER: I'm not sure they went quite that far.

PN552

MR DWYER: Just for the purposes of this stay - - -

PN553

THE COMMISSIONER: For the purpose of the order that job swaps were sought and they were not considered.

PN554

MR DWYER: Perhaps if I just - job swaps in some cases may be, as I was saying, be - - -

PN555

THE COMMISSIONER: The cases where job swaps were sought.

PN556

MR DWYER: Where job swaps were sought. There will be some further evidence which was indicated to our staff that the policy is that job swaps are not considered.

PN557

THE COMMISSIONER: Yes, all right.

PN558

MR DWYER: So they want to put it stronger than simply that they were sought and refused. Our people were deterred from even pursuing a job swap. So for the purposes of this argument Telstra will concede that the job swap - that their policy is that job swaps are not considered at all in the process, were not considered at all in the process, and would that give rise to a stay?

PN559

THE COMMISSIONER: Mr Wood?

PN560

MR WOOD: Commissioner, may I just have a few moments to get some instructions?

PN561

THE COMMISSIONER: Yes.

PN562

MR WOOD: I think I understand my instructions, Commissioner, but I'm going to have - - -

PN563

THE COMMISSIONER: You tell me what you think they are and I'll gauge the reaction.

PN564

MR WOOD: I think we would be prepared to say for the purposes of today's proceeding, and today's proceeding only, where the relief of a stay is sought, that on that, if you were, basis where we haven't gone into evidence and to an extent it's hypothetical, that the proposition put by Mr Dwyer is accepted, that is, that proposition once evidence is called, if it ever becomes called, if it's necessary to call it, if it's necessary for - I think as you observed, Commissioner, for witnesses to go into the - give evidence, then an entirely different complexion could be put on it. But for the purpose of today's proceeding - - -

PN565

THE COMMISSIONER: It's accepted because it doesn't matter as far as you're concerned?

PN566

MR WOOD: Exactly. That's exactly the point.

PN567

THE COMMISSIONER: Yes, I follow. Do you need to call your next witness?

PN568

MR DWYER: No, I don't. Really the terms that we're narrowing, for the purpose of today we're narrowing it just to job swaps and the evidence that we would adduce. There's still some documents here. Telstra had a policy restating the ground. Telstra, well, obviously said we don't consider swaps. Notwithstanding that - - -

PN569

THE COMMISSIONER: For the purposes of you arguing that the Commission can restrain Telstra from terminating employees, they will concede that you can take that as a fact for the purposes of arguing your point.

PN570

MR DWYER: Yes.

PN571

THE COMMISSIONER: It doesn't go to the next step to say they concede, but as a matter of policy that that's the case. They simply say for the purposes of your argument you can take that as a given fact. Is that an appropriate - - -

PN572

MR DWYER: Thank you, Commissioner. We'll not call the evidence. We'll allow our people to go, and bring them back should that be necessary.

PN573

THE COMMISSIONER: They can travel home safely. Now, do you want a half an hour adjournment to prepare for the next stage?

PN574

MR DWYER: I think that's an appropriate time, yes.

PN575

THE COMMISSIONER: Do you need more than that?

PN576

MR DWYER: Commissioner, I'm happy to - Commissioner, I've just arranged for our people to go, I'm just explaining something.

PN577

THE COMMISSIONER: All right. Why don't we adjourn till 2.15, is that convenient?

PN578

MR DWYER: Yes, that's convenient.

PN579

THE COMMISSIONER: We'll get rid of the balance of the argument this afternoon?

PN580

MR DWYER: I think we won't be too long.

PN581

THE COMMISSIONER: All right. We'll adjourn till 2.15.

<LUNCHEON ADJOURNMENT [1.42PM]
<RESUMED [2.24PM]

PN582

THE COMMISSIONER: Yes, Mr Dwyer?

PN583

MR DWYER: Thank you, Commissioner. Commissioner, I just want to tender two documents just to put into context that I'll be talking about. They're just letters from Telstra, all of them are letters from Telstra. These are tendered for the purposes of this afternoon's discussion.

PN584

THE COMMISSIONER: Yes, that's right, but I'll keep it up.

EXHIBIT #CEPU9 LETTER FROM TELSTRA DATED 29/09/2006

PN585

THE COMMISSIONER: Yes, Mr Dwyer?

PN586

MR DWYER: Yes. And CEPU9, if I could take you to the second page of that, Commissioner. These letters were written to Mr Steve Griffiths from, as instructed, the two letters - number two written - the letter number two there, they're getting on the second page to replace the letter on the first page. And in the letter about the fourth paragraph down it said:

PN587

You indicated you believe a job swap would be an option in the circumstances. I advised you at our meeting that the Telstra redundancy agreement does not include any provision for job swaps.

PN588

I'll just stop there. And in fact Mr Griffiths, if he were to give evidence, would indicate that notwithstanding that he does know two people who currently would be prepared to swap with him. Again I'm saying this only for the purpose of today's argument. The second document we wish to tender is an email from Ms Rhonda Taylor.

EXHIBIT #CEPU10 EMAILS BETWEEN RHONDA TAYLOR AND PETER GILLLAN

PN589

MR DWYER: And just quickly to walk you through that, Commissioner, we'll start on the back page of it, the first email to Peter Gillan dated 25 August, where Peter Gillan has said:

PN590

Rhonda, just a question in regards to redundancy. If a swap was available for me to go to the service section of Telstra and swap with a CT -

PN591

CT being communications technician:

PN592

- who wants redundancy, would this be an option or not?

PN593

And to the front page at the bottom it says:

PN594

Hi Peter. The current redundancy agreement does not allow redundancy swaps. The job role change is something to explore. If you have options in your local area speak to Jim Ray about it.

PN595

The third part of it, 27 September, so we skip forward almost a month:

PN596

Rhonda, I've read the redundancy agreement and I find where it says redundancy swaps are not allowed. Perhaps you can tell me where to find it in the agreement.

PN597

And at the top of the page:

PN598

Hi Peter. As the agreement does not include a clause that specifically allows redundancy swaps they are not part of the agreement.

PN599

If I could move now to the agreement itself and to clause 7 of the agreement. It's common ground that this would be a site function closure, and clause 7 would be the appropriate clause. And clause 7.2 refers to the fact that Telstra will issue a Form A, I believe which is in evidence before you, I think CEPU4. It's just a document that identifies 48 people, which is CEPU4. And clause 7.3 says:

PN600

Concurrent with notification under clause 7.2 being given Telstra will give the union entitled to represent the employees ...(reads)... proposed retrenchments.

PN601

We will be focusing on the 7.3(b) this afternoon, and we say - and we will be discussing the opportunity to consult. Now, of course the agreement has got some of the usual clauses. For example in clause 1(b) it says:

PN602

In negotiating this agreement the parties have sought to achieve a process where job security can be maintained for as many employees as possible.

PN603

The view on this, not irrelevant but it does give it character. In terms of job swap I think we all know what we're talking about. We're talking about a person who can find someone of similar designation and similar skills perhaps in a work area that he's prepared to work in and may need only a minor retraining or some retraining, but something that's not what I'll call unreasonable to ask of an employer. So we're not talking about a job swap being a right, but an opportunity to find someone and - it would not be a right just to find someone, that it should be approved by the employers. I'm talking about a job swap in general. I think we're all talking about the same thing.

PN604

We say that a job swap is a legitimate cost neutral or minimal cost to employer. They're not guaranteed of course, but we think it's efficient and people friendly. So we say it's effective and practical, not ...... It's something which a caring employer we submit would do. We had today in another matter before Vice President Lawler spoke of redundancy and spoke of the problems people face of people being made redundant, and quoted a situation where they - he quoted almost the loss of a child. It is a very significant thing to happen to a person particularly of middle age and beyond. And I'd like to say before this Commission - - -

PN605

THE COMMISSIONER: If it would assist you, I argued the first TCR case and I sat on the second, so I'm very familiar with the literature in relation to redundancy and job loss.

PN606

MR DWYER: Well, I was going on to say that while there are rights to come to this Commission, I've been in a case. There's a matter, a decision of the Commission called Rose v Telstra, where I ran an unfair dismissal. It took about a year to get this guy reinstated and it was a difficult - and it's a case that's often quoted. He was stabbed in a fight, he was the guy that got stabbed, not seriously, but he was sacked. And we went through a lot of internal processes all the way through. It took a year. He's gets his job back, he got his back pay. And I knew he had difficulties through that. I spoke to him on several occasions. I'm one of those people who'd lost a child, and Mr Rose was worried about losing his child at the time through other circumstances.

PN607

Now, within just a couple of months of winning that case and getting in a ute he goes and commits suicide. And they say, well, we have all this fun here. This is very, very difficult stuff for a lot of people to deal with. Back to clause 7. We say the fact that a job swap is not available to these people, that robs us of an opportunity. The fact that they will not consider job swaps, that robs us of the opportunity to consult with them on measures to avert proposed retrenchments and on measures to mitigate the adverse effects. Not everything is open to us. It's a very practical thing to do, and while there are other things to do and it's not the only thing, but it robs the union in this case, robs the union of the opportunity to try to mitigate the effects of those redundancies.

PN608

To that we say the process hasn't been followed in relation to the union. Now, I've seen from the evidence and what I've tendered before, that the employees who have to go through stage one, stage two, stage three, were also robbed of an opportunity to try to mitigate the effects of redundancy. Although it's not really relevant to what we're arguing this afternoon, I do identify the union as having rights separate from and in addition to the rights of the employees. So in clause 7.3 we're talking there about the rights of the union in the dispute resolution clauses, we're talking about the rights and processes that apply to the individuals that are involved.

PN609

We say that if clause 7, and in clause 7 if no genuine opportunity was given to the union, we say the process has not been followed. We also say that in relation to the employees and the process that they must also go through. This brings us to clause 17.4. The Full Bench of course has discussed both of these, 17.3, 17.4, and acknowledged that Telstra is following the processes. It would appear to me, that this is an observation, ..... if Telstra is following the process. It appears to me that its not possible to get a stay.

PN610

But I do submit there is a possibility there. The meaning has to be given to these words, subject to it having been processed in accordance with the agreement, which is found in 17.4. The Full Bench discusses this. It says clause 17.4 provides that there is no obligation on management to stay a retrenchment when it becomes the subject of a dispute provided the retrenchment has been processed in accordance with the agreement.

PN611

We say that if the retrenchment hasn't been processed in accordance with the agreement, we say that the union or the members have a right to - sorry, if it hasn't been processed in accordance with the agreement the Commission is not robbed of the powers that might otherwise have been taken away by clause 17.3 and 17.4. We would submit that that stay possibility is open to you. That would be my submissions.

PN612

THE COMMISSIONER: Thanks, Mr Dwyer.

PN613

MR WOOD: Commissioner, we wouldn't wish to probably say this afternoon deny the very real dimensions of this very difficult situation. And by focusing merely on the legal points we shouldn't be taken to disagree with what Mr Dwyer says about the underlying problems associated with these sorts of large scale retrenchments. But we do say, Commissioner, that this is a dispute that involves currently four employees, Mr Gary Comisari, Mr Steven Griffiths, Mr Dale Burgess and Mr Fred Hammer, that we are content that the dispute notified and now numbered as 2006/3010 be treated as having been amended so that it's an application by those four individuals for the relief that's sought.

PN614

The other way of proceeding might be to just deal with this matter on the basis that Mr Dwyer is making these applications today without the relevant paperwork. We don't want to get particularly hung up on that part of the procedure. What we do say, Commissioner, is that in relation to 3010 that - - -

PN615

THE COMMISSIONER: If I'm against you it only affects four people.

PN616

MR WOOD: If you're against us it only affects four people, that's correct, Commissioner. At this stage. There might be a dispute that is created down the track, and we can't beat that, but at the moment it only involves four people.

PN617

THE COMMISSIONER: Is that right, given the concession that you made for the purposes of the argument?

PN618

MR WOOD: Yes, Commissioner, because the only people that have gone through the three phases, the only - if I can - - -

PN619

THE COMMISSIONER: No, I understand. The point I'm making though is that everybody else will go through those phases and they will be told it's inconsistent with Telstra policy to have job swaps, so the utility of them going through the phase is at best useless.

PN620

MR WOOD: Well, you just don't know, Commissioner. All I can say - - -

PN621

THE COMMISSIONER: No, this is simply talking about the concession for the purposes of the argument. The concession is that there are no job swaps, then it's a useless exercise for the other persons to go through the process.

PN622

MR WOOD: I know it doesn't follow, Commissioner, because we're just dealing with what is before us today, that is, an application in relation to which four employees have or have been treated at least by us as having satisfied the requirements of 17.1, 2 and 3. It may be that in relation to some other employees that this concession is not made and we have a full blown resolution of the dispute. That is evidence that's called and the Commission makes a finding. As a question of power the only persons in relation to whom the Commission can exercise power are those who have proceeded through 17.1

PN623

THE COMMISSIONER: No, I understand. The understand the submission you make. I just thought it might be tempered by the concession that you made, that you make no concession in relation to that.

PN624

MR WOOD: No, Commissioner, no.

PN625

THE COMMISSIONER: And might I say I've taken all of these submissions, including the earlier one, about if an employee left whether or not there was a dispute at all. Just so that it can be clear how I've taken that, I have taken that on the part of Telstra saying the matter is arguable. If it was unarguable I'd expect a concession. I think that's the duty you would have to the Commission. Without talking about the relative weight of argument I'd expect counsel to immediately make a concession if something was unarguable. Therefore to the extent that you say jurisdiction is not there or it could be argued, I have assumed that it's arguable.

PN626

MR WOOD: I accept the point you make about counsel's obligations, and you state them correctly, Commissioner, and I couldn't say in the time that I've had to look at it that it's unarguable. But I think I indicated my tentative view before lunch, that it would be odd if the situation was that the dispute disappeared because the employment was terminated. But that could be a possibility, that it would - - -

PN627

THE COMMISSIONER: I assume it's arguable, otherwise a concession would be made. I don't underestimate the seriousness of these proceedings.

PN628

MR WOOD: Yes, Commissioner. But in relation to those four individuals who have gone through clause 17.1(a) (c) (d), and there has been a referral to the Commission in accordance with clause 17.2, we accept that the Commission, once it sees such a dispute over the application of the agreement, can arbitrate, and at some point there may be an arbitration of the case if the matter isn't settled. But what we're here for today is the question of any, I think you described it this morning as a status quo order, interim relief pending the resolution by arbitration of the underlying dispute.

PN629

And in that regard, Commissioner, we say that it may be that at the ultimate arbitration the propositions which Mr Dwyer put forward are made out, and for the purposes of determining whether or not interim relief should be granted then the Commission would be entitled to find that there is a dispute constituted by a question surrounding clause 7.3. That rather follows from the formal submissions we made before lunch, and I couldn't really be heard to say anything else having suggested that.

PN630

That really doesn't entitle - I'm sorry, that, if you like, is a matter that is going to be of some importance at the ultimate arbitration, or perhaps to use the words in the agreement, the determination. But for the purposes of today's proceedings there's clear, we say, on the basis of what the Full Bench said, that one cannot grant interim relief of the nature sought by the - I was going to say applicant, it's perhaps more correct to say applicants. And the basis for that is that part of the Full Bench's reasoning which I took you to before lunch, Commissioner, and is encapsulated in paragraph 50 and also 52.

PN631

Mr Dwyer has focused on clause 17.4, that was before Vice President Lawler. A lot of focus in the decision under appear was directed at 17.4. It wasn't until this matter came on appeal that attention was directed to clause 17.3. And I don't mean this in any sort of improper way, but Mr Dwyer didn't direct any attention in his submissions to 17.3. He focused on 17.4 the same way that matter before Vice President Lawler, the focus was on 17.4, and one really has to come to terms with clause 17.3, which we would say makes it clear that one can't grant interim relief of the nature sought here.

PN632

THE COMMISSIONER: Do you have at hand the date on which these employees became eligible to come to the Commission?

PN633

MR WOOD: Yes, Commissioner, I do.

PN634

THE COMMISSIONER: Before we're talking about.

PN635

MR WOOD: Yes, Commissioner. Mr Griffiths on 7 October - sorry, it could only have been the 6th. I'll tell you the date when phase three was complete. Mr Griffiths, 6 October, Mr Comisari, 12 October, Mr Burgess, 12 October, and Mr Hammer on 13 October.

PN636

THE COMMISSIONER: Now, to take the last three, and they're all leaving this Thursday?

PN637

MR WOOD: Yes, Commissioner, as I understand it. I haven't checked it but I'm instructed the dates for all 38 employees are this Thursday. I haven't checked those four particularly, but I've got no reason to suspect they're any different.

PN638

THE COMMISSIONER: Can I ask you a question about the substantive relief. In your view is it possible to hear and determine a case on the substantive relief - well, take the 13th, three working days?

PN639

MR WOOD: I'm sorry for the pause, Commissioner, but it's really like how long is a piece of string? In one sense yes, and in another sense no. That is, if resources were committed, that material was got together, the argument was proceeding in a way to be responded to, yes.

PN640

THE COMMISSIONER: Normally interlocutory relief or interim orders is done to permit somebody not to lose their position whilst the final matter is heard.

PN641

MR WOOD: Yes.

PN642

THE COMMISSIONER: If the final matter can't be heard in three days then wouldn't that add force to the fact that there might be a power to grant interlocutory relief?

PN643

MR WOOD: If there was power then it would lead to the conclusion that the power should be exercised.

PN644

THE COMMISSIONER: I see, as the balance of probability.

PN645

MR WOOD: Yes.

PN646

THE COMMISSIONER: But the agreement of the parties must have some work to do mustn't it? It could be could it that the agreement of the parties simply couldn't operate?

PN647

MR WOOD: That proposition is put in such a broad manner that - - -

PN648

THE COMMISSIONER: Well, I mean in terms of timing. Let's say we deal with Mr Hammond.

PN649

MR WOOD: Mr Hammer.

PN650

THE COMMISSIONER: Sorry, Mr Hammer. He went through phase three on the 13th, last Friday.

PN651

MR WOOD: I'm sorry, he went through on the 16th.

PN652

THE COMMISSIONER: The 16th?

PN653

MR WOOD: I'm sorry, yes.

PN654

THE COMMISSIONER: So yesterday.

PN655

MR WOOD: Yesterday, yes.

PN656

THE COMMISSIONER: He now seeks to grieve under the dispute settlement procedure, and we have to hear and determine the merits of the case between now and the close of business on the 19th.

PN657

MR WOOD: No, Commissioner. Can you just excuse me for a moment?

PN658

THE COMMISSIONER: Yes, of course.

PN659

MR WOOD: That proposition is based on two things, Commissioner. One is the time at which the dispute settlement procedure is agitated, that is, if it's agitated at a much earlier date then the time pressures at the back end are less significant, and it rather presumes there is a back end, that is, you're working from the assumption that our failure to make a concession that the dispute can be resolved after 19 October amounts to a conclusion that it can't be.

PN660

THE COMMISSIONER: But given the facts of this case and take the no job swaps, for Mr Hammer, he, in your submission, could exercise - could seek the assistance of the Commission as of whenever it was, the 13th?

PN661

MR WOOD: Sorry, the 16th.

PN662

THE COMMISSIONER: The 16th, I'm sorry. Yes, that's right. No, you corrected yourself. Now, for the agreement to have any meaning the substantive case must be able to be heard and determined before he's exited from employment mustn't it?

PN663

MR WOOD: No, Commissioner. That proposition is - the only reason that would happen is if the underlying dispute which was in the process of being resolved could no longer be resolved post employment.

PN664

THE COMMISSIONER: But that's the proposition you put to me isn't it, that you think the capacity to challenge the jurisdiction of the Commission post employment is real?

PN665

MR WOOD: I think the way this arose was that you asked me to make a concession as to whether or not that was - - -

PN666

THE COMMISSIONER: No. Well, I'll put it in more stronger terms. Do you think it's arguable that the Commission would lack the jurisdiction to deal with Mr Hammer's dispute after he's exited the company?

PN667

MR WOOD: It would be hard to see why, as presently instructed, on the face of the agreement a dispute which was in the process of being resolved would no longer have that character simply because the employee was no longer employed. It doesn't appear on its face to be any provision which suggests that, and the argument that you're making - - -

PN668

THE COMMISSIONER: Question.

PN669

MR WOOD: Sorry, the proposition that is being advanced seems to suggest that there would have to be a very strong statement to that effect otherwise the utility of the dispute settlement procedure might be impaired.

PN670

THE COMMISSIONER: Well, once Mr Hammer exits the organisation you would say you don't have a dispute with him.

PN671

MR WOOD: Well, we might formally put that proposition to you, Commissioner, but we would have to deal with the proposition that there is in fact, or there was in fact a dispute, it had been referred to the Commission, it was in the process of being resolved, and that for some reason, that is, the termination that gave rise to the dispute taking effect, that dispute no longer had the characteristic of a dispute that was being resolved. Now, that proposition is one that we might succeed on, but given the way I've just put it one could see some real difficulties with it.

PN672

THE COMMISSIONER: Yes, I follow.

PN673

MR WOOD: It would rather defeat the operation of the agreement. But one would - - -

PN674

THE COMMISSIONER: And if I put the - which we all agree - the human dimension to it, it doesn't assist Mr Hammer other than in circumstances if he - well, it doesn't assist him does it? If for example in the three days we find that job swaps are an appropriate consideration for Telstra, and that's the decision, one would expect one of two things, either an appeal or Telstra would revisit the timing of its exiting these persons to see whether or not job swaps would be possible and comply to its agreement. In the circumstances where Mr Hammer has exited the organisation that would bring in a whole new dynamic.

PN675

MR WOOD: Yes, it would, Commissioner.

PN676

THE COMMISSIONER: And make it more difficult for Mr Hammer to maintain his employment, if I can put it that way.

PN677

MR WOOD: I think that's a fair point, Commissioner, and it may be that that has some impact upon any orders that you might make for the determination of the underlying disputes. I mean, it would seem to be quite unreasonable for persons in the position of Mr Hammer and Mr Burgess, Mr Griffiths and Mr Comisari to wait for as long as, for example, a litigant in the Supreme Court would have to wait, that is, a trial 18 months down the track. But again it rather points to the difficulties of maintaining an argument which says that a dispute ceases to exist simply because of the fact of a termination or resignation.

PN678

If you look at it in - say if there was another agreement which talked about payment for hours worked, and there's a dispute about an employee being overpaid, the dispute is in the process of being resolved and the employee resigns, does the Commission no longer have jurisdiction over such a dispute? It would be - you have to look at these - I don't mean to be deliberately company, Commissioner, but I am conscious that this agreement has been litigated for about, or at least 10 years, and there may be something in there that, upon instructions, we wish to raise.

PN679

But can I say that it's not apparent on the face of the document, it's not apparent that the Commission ceases to have jurisdiction in relation to a dispute referred to the Commission merely because the status of one or more of the parties changes in the meantime.

PN680

THE COMMISSIONER: Yes, I follow. Now, getting back to paragraph 50 and 52, is there any significance attached to the word unqualified? It's used twice by the Full Bench. It says Vice Presidents finding that the Commission had no qualified power. Matters over which the President presides normally has a fairly economical use of language.

PN681

MR WOOD: I think that is really a reference to the way in which the appeal came to pass. Because the appeal - because Vice President Lawler's decision was in two parts, one as to power and then one as to merit, the appeal initially was to both orders. During the running of the case, it appears from the Full Bench decision, that the appeal as to the merit order was dropped, presumably on the basis that that order had done it's work or, alternatively, if the appeal to power was successful that that would have the effect of knocking out the appeal as to merit. And because the appeal was run in that fashion there is a reference throughout it to the reference of power because it focuses heavily on the earlier decision of 2 July 2003 rather than the merit decision of 7 July 2003.

PN682

THE COMMISSIONER: I haven't read the decision below for a long time.

PN683

MR WOOD: I've got a copy of it, Commissioner, but I haven't got a copy of the 7 July decision, but I can hand up a copy of the - - -

PN684

THE COMMISSIONER: Just the question of power and jurisdiction.

PN685

MR WOOD: Yes, the 2 July.

PN686

THE COMMISSIONER: That's all right, I can look at it. Your proposition is that it's just an absolute determination of the power.

PN687

MR WOOD: That's correct, Commissioner, that's correct. And we would - - -

PN688

THE COMMISSIONER: And of course it has to be - I mean, Mr Dwyer argued, he sought to raise the question that if you're not following the agreement therefore the language doesn't arise, or the qualification that the Bench put on it, that one would have to observe the determination as to whether you were following the agreement or not was still in question.

PN689

MR WOOD: That's correct, Commissioner. That seems to be the upshot of paragraph 50.

PN690

THE COMMISSIONER: So whether one's following the agreement or not is irrelevant to the Full Bench's considerations. You could be subsequently found not to be following the agreement, and yet the Full Bench determined that no interlocutory power existed.

PN691

MR WOOD: That's quite correct just because of the wording of this particular clause. In other clauses it might be that there isn't a status quo clause like 17.3 which prevents interim relief being granted. It's not unusual in this field. It's in the unfair jurisdiction and there's been a prohibited since the Clarrie O'Shea appeal for injunction to be granted in aid of award and agreement rights. So it's not a concept that's unknown to industrial affairs, and it happens to have been agreed between the industrial parties in this case in clause 17.3. That seems to be the point of the Full Bench's observation in paragraph 50, an order enjoining Telstra from terminating the employment of the persons concerned would be inconsistent with the agreement if in fact Telstra was complying with the process, that is, that has to be determined at some other point.

PN692

THE COMMISSIONER: Yes, that's the point that I make. The Full Bench says if in fact Telstra was complying with the process. The argument that's put against you is that you're not.

PN693

MR WOOD: Yes.

PN694

THE COMMISSIONER: The same factual circumstances were before Vice President Lawler, an argument that you weren't complying with the process.

PN695

MR WOOD: In the earlier Telstra case, that's right.

PN696

THE COMMISSIONER: Yes. So the Full Bench's decision must be read mustn't it as saying whether or not you are complying with the process no interim order can issue restraining you from terminating.

PN697

MR WOOD: That's as I read it, Commissioner, that's exactly as I read it.

PN698

THE COMMISSIONER: That's what I thought, yes.

PN699

MR WOOD: Because at that stage that is - there's a dispute about that exact point, that is, there's - and you're denied the benefit of what might be described as the carve out under 17.3 if an interim order was to issue. Commissioner, can I move to matter number 3011, or would you like me to keep addressing you on 3010?

PN700

THE COMMISSIONER: Is 3011 still alive?

PN701

MR WOOD: Well, I don't think Mr Dwyer is really - the section 668 point.

PN702

THE COMMISSIONER: Do you press it at this stage, Mr Dwyer? Well, it might be alive, but is it pressed for the purposes of today?

PN703

MR DWYER: Yes, but in a very general way. Remedy has been - the authority - remedy is something of course. Of course there's been some cases on that. Remedy is not otherwise available, and then if it would trigger that then we would pursue that 668. As a remedy then I put it like that. But first, if we can find there's no remedy, remedy - perhaps I needn't go to it, but there is some judicial consideration of what a remedy is, and it generally means something that's enforced and something that's real. If we have found that this agreement - basically no matter what the - let me go back a bit.

PN704

If the employer has no fetter to do what the employer wants to do under this agreement, whether they follow it or not, at the end of the day no remedy is apparent.

PN705

THE COMMISSIONER: No, I don't think that's the case. What's been put is that the remedy of seeking to delay the termination by an order is not available, Mr Wood hasn't argued the next step, saying that there's no remedy. He hasn't gone to it in detail, but if your argument in relation to job swaps, the merit of it, was subsequently found to be an appropriate course of conduct and properly applied in the agreement, there may be some remedy there.

PN706

MR DWYER: Well, it's hard to see from this agreement what enforceable remedy may be available, other than to go back and start the process again, which starts a sort of a circular argument.

PN707

THE COMMISSIONER: Well, my job is to help you to determine what is your agreement, nothing else.

PN708

MR DWYER: Yes. We'll press it lightly and leave it at that.

PN709

THE COMMISSIONER: Thank you. Yes, Mr Wood?

PN710

MR WOOD: Commissioner, then dealing with 3011, none of those procedural issues arise in relation to 3011 than they do to 3010, so it's not necessary to go through clause 17 of the redundancy agreement to access 668. But can we simply refer you to subsection 3 of section 668, which explicitly excludes the power to make orders for any of the following, and paragraph (a) - I'm sorry, Commissioner.

PN711

THE COMMISSIONER: 668(2), yes.

PN712

MR WOOD: 668(2) and then 668(3), which is the power.

PN713

THE COMMISSIONER: Yes, the ticking off on another decision.

PN714

MR WOOD: I'm not aware of that, Commissioner, sorry.

PN715

THE COMMISSIONER: There have been a couple of decisions of the Commission that drew attention to the fact that there may have been a power to reinstate if consultation hadn't properly taken place. It was a lighthearted comment and I apologise for that.

PN716

MR WOOD: No, I just wasn't aware of the cases. I mean, that was a very common occurrence in the days of the old Industrial Relations Court, you'd often get reinstatements when there was a failure to consult. I just wasn't aware of the Commission decision to that effect.

PN717

THE COMMISSIONER: Optus. I didn't go so far as to reinstate.

PN718

MR WOOD: But in terms of that general jurisprudence, apart from subsection 3 then one would think you're in the mainstream of an industrial authority, that it's a reasonable remedy in the circumstances and all the facts. But it's not available in this case. Commissioner, then that brings me back to 3010, whether there's anything else that I might be able to assist you with in terms of our submissions on the interim order point.

PN719

THE COMMISSIONER: Thank you. Anything in response, Mr Dwyer?

PN720

MR DWYER: I don't think there's much more to add except I've got the weight of the world on my shoulders.

PN721

THE COMMISSIONER: And everything you said earlier you now say with feeling.

PN722

MR DWYER: Yes, Commissioner. Other than - no, I won't restate what I've said, it's fairly obvious.

PN723

THE COMMISSIONER: Fine, I understand.

PN724

MR DWYER: You might indicate or agree with what procedurally we may have.

PN725

THE COMMISSIONER: When you will know the answer?

PN726

MR DWYER: That might be ......

PN727

THE COMMISSIONER: You will know the answer before terminations take effect, so you will be in a position to know whether I make the order you seek or refuse the order you seek before the terminations take effect. But I will reflect on some of the issues that have been put. When do terminations take effect, Thursday night?

PN728

MR WOOD: Close of business Thursday.

PN729

THE COMMISSIONER: Close of business on Thursday, yes.

PN730

MR DWYER: I just wonder whether I perhaps emphasise one point, and that was I did point out there, I think there are two streams of dispute here, one is the union issue as well as the other - - -

PN731

THE COMMISSIONER: No, I understand that.

PN732

MR DWYER: And while I didn't address it earlier, yes, we would have made those applications to amend the applications. And I know you have the power to grant that.

PN733

THE COMMISSIONER: Yes.

PN734

MR DWYER: I submit you have the power, I correct myself.

PN735

THE COMMISSIONER: Well, I don't have to decide the matter given that you're both agreed. So you're content that any order should only apply to those four persons at this stage subject to any other submission? Well, I'm sorry, you accept the point that's been raised by Mr Wood?

PN736

MR DWYER: Certainly. And for your information, we have one other person who's come almost up to the mark. There's always difficulties with some of these, but I think - - -

PN737

THE COMMISSIONER: Well, I look forward to seeing you on a weekly basis.

PN738

MR DWYER: Well, they run out on the 19th as well.

PN739

THE COMMISSIONER: Well, if we can't deal with what I'll loosely call a generic claim.

PN740

MR DWYER: Yes, thank you, Commissioner.

PN741

THE COMMISSIONER: I'll reserve my decision and hand it down as quickly as I can.

<ADJOURNED INDEFINITELY [3.15PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

GARRY COMISARI, SWORN PN183
EXAMINATION-IN-CHIEF BY MR DWYER PN183
EXHIBIT #CEPU7 EMAIL HEADED DESIGNERS PN213
EXHIBIT #CEPU8 DOCUMENT HEADED COMMUNICATION TECHNICIAN JOB POINT INCENTIVE PLAN PN236
CROSS-EXAMINATION BY MR WOOD PN246
EXHIBIT #TELSTRA2 REFERENCE PACK HEADED CAN PROVISION REVIEW PN270
EXHIBIT #TELSTRA3 ELECTION TO BE RETRENCHED BY GARRY COMISARI PN297
EXHIBIT #TELSTRA4 LETTER FROM G. COMISARI TO PETER GARTH DATED 18/09/2006 PN314
THE WITNESS WITHDREW PN455
EXHIBIT #CEPU9 LETTER FROM TELSTRA DATED 29/09/2006 PN584
EXHIBIT #CEPU10 EMAILS BETWEEN RHONDA TAYLOR AND PETER GILLLAN PN588