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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1054922
COMMISSIONER JOHNS
AG2017/2206
s.318 - Application for an order relating to instruments covering new employer and transferring employees
Nokia Solutions and Networks Australia Pty Ltd T/A Nokia Group
and
Professionals Australia
(AG2017/2206)
Alcatel-Lucent Employment Partnership Agreement 2009
Melbourne
3.06 PM, TUESDAY, 11 JULY 2017
PN1
THE COMMISSIONER: Yes, thank you, I'll take the appearances, please, starting in Sydney?
PN2
MR P BROWN: If it please the Commission, Brown, initial P, solicitor. I seek leave to appear on behalf of the applicant in these proceedings. With me and at the Bar table is Mr David Keith, spelt K-e-i-t-h, who holds the position of head of legal and compliance Oceania for the applicant.
PN3
THE COMMISSIONER: Thank you, Mr Brown.
PN4
MS M ANTHONY: If the Commission pleases, my name is Anthony, initial M, and I am an employee of APESMA.
PN5
THE COMMISSIONER: Yes. Is there any opposition to Mr Brown representing the applicant in the matter?
PN6
MS ANTHONY: We don't oppose Mr Brown's representation.
PN7
THE COMMISSIONER: Yes, can I say, Mr Brown, having read the materials, I'm satisfied that the matter is invested with sufficient complexity such that I'll be assisted in the efficient conduct of the matter if I allow the applicant to be represented by you and I do so pursuant to section 596 subparagraph (2A) of the Fair Work Act.
PN8
MR BROWN: Thank you, Commissioner.
THE COMMISSIONER: What I'd like to do first is just go through and mark all the material to make sure that I have everything. I have the amended application for orders which is dated 27 June. I then have the applicant's outline of submissions dated 28 June, which I'll mark as exhibit A1.
EXHIBIT #A1 APPLICANT'S OUTLINE OF SUBMISSIONS DATED 28/06/2017
THE COMMISSIONER: I then have a statement of Viviane Akkary, that's A-k-k-a-r-y, and exhibits, which I'll mark as exhibit A2.
EXHIBIT #A2 STATEMENT OF VIVIANE AKKARY
PN11
THE COMMISSIONER: Am I right in understanding that she's not required for cross-examination?
PN12
MS ANTHONY: Correct, Commissioner.
THE COMMISSIONER: Yes. I then have a statement from Mohan Vankadara, that's V-a-n-k-a-d-a-r-a, which I will mark as exhibit A3.
EXHIBIT #A3 STATEMENT OF MOHAN VANKADARA
THE COMMISSIONER: A statement of Rahman Flawn, F-l-a-w-n. I'll mark it exhibit A4.
EXHIBIT #A4 STATEMENT OF RAHMAN FLAWN
THE COMMISSIONER: A statement of Jeremy James, which I'll mark as exhibit A5.
EXHIBIT #A5 STATEMENT OF JEREMY JAMES
THE COMMISSIONER: A statement of Lian Ignacio, that's I‑g‑n-a-c-i-o, which I'll mark exhibit A6.
EXHIBIT #A6 STATEMENT OF LIAN IGNACIO
THE COMMISSIONER: A statement of Gary Ruddy, which I'll mark as exhibit A7.
EXHIBIT #A7 STATEMENT OF GARY RUDDY
THE COMMISSIONER: A statement of Sunel Theertham, that's T-h-e-e-r-t-h-a-m, which I'll mark as exhibit A8.
EXHIBIT #A8 STATEMENT OF SUNEL THEERTHAM
THE COMMISSIONER: A statement of Vlad Voltar, which I'll mark exhibit A9.
EXHIBIT #A9 STATEMENT OF VLAD VOLTAR
THE COMMISSIONER: Statement of Anard Shinde, that's S‑h‑i‑n-d-e, which I'll mark as exhibit A10.
EXHIBIT #A10 STATEMENT OF ANARD SHINDE
THE COMMISSIONER: A statement of Korg Narakesari, that's N-a-r-a-k-e-s-a-r-i, which I'll mark as exhibit A11.
EXHIBIT #A11 STATEMENT OF KORG NARAKESARI
THE COMMISSIONER: And a document entitled "Comparison of various provisions of the Alcatel-Lucent Employment Partnerships Agreement 2009 compared to the contract of employment and modern awards", which I'll mark as exhibit A12.
EXHIBIT #A12 DOCUMENT ENTITLED "COMPARISON OF VARIOUS PROVISIONS OF THE ALCATEL-LUCENT EMPLOYMENT PARTNERSHIPS AGREEMENT 2009 COMPARED TO THE CONTRACT OF EMPLOYMENT AND MODERN AWARDS"
PN23
THE COMMISSIONER: Mr Brown, is that all that I should have on behalf of the applicant?
PN24
MR BROWN: That is all that the applicant relies upon in support of the application.
PN25
THE COMMISSIONER: Thank you. As I understand it none of those witnesses are required for cross-examination. Is that correct?
PN26
MS ANTHONY: That is correct, Commissioner.
THE COMMISSIONER: Thank you. Then coming to the respondent's materials, I have an outline of submissions dated 5 July 2017. I'll mark that as APESMA1
EXHIBIT #APESMA1 OUTLINE OF SUBMISSIONS DATED 05/07/2017
THE COMMISSIONER: I then have a document called "Aide memoire key disadvantages of employment contract." I'll mark that as APESMA2.
EXHIBIT #APESMA2 "AIDE MEMOIRE KEY DISADVANTAGES OF EMPLOYMENT CONTRACT"
THE COMMISSIONER: I then have an outline of witness statement from Paul Davies, which I'll mark as APESMA3.
EXHIBIT #APESMA3 OUTLINE OF WITNESS STATEMENT FROM PAUL DAVIES
THE COMMISSIONER: I then have a redacted witness statement referred to as exhibit APESMA2, which I will mark - that's going to be complicated. I'm going to have to mark that as APESMA4, I'm afraid.
EXHIBIT #APESMA4 REDACTED WITNESS STATEMENT REFERRED TO AS EXHIBIT APESMA2
THE COMMISSIONER: I then have an unredacted version of what's called APESMA2, which I'll mark as APESMA5.
EXHIBIT #APESMA5 UNREDACTED WITNESS STATEMENT REFERRED TO AS EXHIBIT APESMA2
THE COMMISSIONER: I then have a redacted version of what's called APESMA3, which I'll mark as APESMA6.
EXHIBIT #APESMA6 REDACTED VERSION OF APESMA3
THE COMMISSIONER: I then have an unredacted version of APESMA3, which I'll mark as APESMA7.
EXHIBIT #APESMA7 UNREDACTED VERSION OF APESMA3
THE COMMISSIONER: I have a redacted version of a document called APESMA4, which will be marked as APESMA8.
EXHIBIT #APESMA8 REDACTED VERSION OF APESMA4.
THE COMMISSIONER: I then have an unredacted version of APESMA4, which I'll mark as APESMA9.
EXHIBIT #APESMA9 UNREDACTED VERSION OF APESMA4
PN36
THE COMMISSIONER: As I understand it that's all the documents on behalf of APESMA. Is that correct?
PN37
MS ANTHONY: That's correct, Commissioner.
PN38
THE COMMISSIONER: Mr Brown, am I right in understanding that none of the witnesses are required for cross-examination?
PN39
MR BROWN: That is correct, save with one comment. My friend and I have worked cooperatively on this issue and I think we have a solution that may be eloquent enough. I don't have a copy of the unredacted versions of these statements.
PN40
THE COMMISSIONER: Yes.
PN41
MR BROWN: I think what's been agreed and my friend will correct me, there is one attachment to the statement of Mr Davies, which has what I'll call the petition attached to it. I have a copy of the petition but not the names of the individuals.
THE COMMISSIONER: Yes, that's APESMA1/A.
EXHIBIT #APESMA1/A PETITION ATTACHED TO STATEMENT OF PAUL DAVIES
PN43
MR BROWN: Yes.
PN44
THE COMMISSIONER: Yes.
PN45
MR BROWN: We don't cavil with the fact that I don't have a copy of it. My client doesn't have a copy and we can deal with that in submissions. In relation to the three individuals, I'll be making some sort of a submission in relation to weight but there's a particular problem with APESMA8 and it may well be that if the Commission makes the orders in the form that the union wishes in terms of confidentiality, that may be good enough but there is an inherent problem with APESMA8 in that it appears to be an individual who is not prepared to give us his name or her name, is not prepared to give us his or her qualifications, genuinely not doubt fears that he or she might fall between the metes and bounds of the Professional Employees Modern Award and the Telecommunications Modern Award and because he or she states that they have a base salary over 140,000 per annum, that they will potentially miss out on an unfair dismissal benefit and that all makes sense.
PN46
The only problem with that is that I don't know who the individual is. I'm not able to test it and my solution that I suggested to my friend was this: is that I'll make submissions in relation to the weight that APESMA8 would carry in those circumstances and that might achieve the objective of moving on today but I'd have to, if that were the case, I'd have to acknowledge - and I told my friend that we would be prepared to acknowledge this, is that there will be much talk today about the 395 transferring employees. There will be much talk and much submission today about where they may fit in if the orders were made and all of that's envisaged by the Act and we have to also envisage that one likely scenario in there is that there could well be a person who, through a combination of what they do for my client when they start on 15 July, their qualifications and what they're required to do, there is at least the possibility of an individual not falling within the metes and bounds of those two modern awards, broad as they are, and it's a similar possibility of that individual having a base salary over $140,000 per annum.
PN47
We acknowledge that there is at least the potential for it but I think there's an inherent unfairness in APESMA8 going in when we don't have the benefit of that but if it comes down to a submission on weight, I'm happy to leave it at that and on that basis, Commissioner, the orders that the union wanted to have the Commission make in terms of the identity of the individuals and what have you, I'm happy for those orders to be made if they need to be made. They may not need to be made because I'm happy to progress today, never knowing the names of the three individuals.
PN48
THE COMMISSIONER: Well, unless there's an objection, I think what I propose to do is issue the orders pursuant to s 594 as prepared, unless there's anything further you want to say in relation to the matter.
PN49
MR BROWN: No, so long as my position is reserved on the question of weight on APESMA8.
PN50
THE COMMISSIONER: Yes.
PN51
MR BROWN: I don't need to bother the Commission much more about this.
PN52
THE COMMISSIONER: Yes.
PN53
MR BROWN: I haven't seen them. Those orders won't have any impact upon me.
PN54
THE COMMISSIONER: Yes. What I'll do is in terms of the draft order, I will make some necessary amendments because of the new exhibit numbers but otherwise I'll issue the orders as drafted. I mean, I must say, I mean, looking at the witness statements of the employees, I mean there are 395 who have agreed to transfer. I've got nine saying they don't care about really the EPA, if I can call it that, not applying to them and I've got three who say it should. I mean, I just don't know that really any of those 12 witness statements take me very much further on that issue.
PN55
One thing that I did read in the materials, Mr Brown, was that the union says or, sorry, APESMA says in particular, when I look at Mr Davies' witness statement, paragraph 6, it's on the last page, subparagraph (c) says:
PN56
APESMA confirmed to members at this time that:
PN57
(c) If it was their preference that they continue to be covered by the EPA after commencing employment with Nokia Networks, they should notify Nokia Networks of the same in writing. Now produced shown to me marked APESMA 1 to 7 and attached hereto are copies of 53 emails that affected employees have provided to APESMA confirming that they have advised Nokia Networks that it is their preference that the EPA continue to cover their employment after they commence employment with Nokia Networks.
PN58
Is that conceded?
PN59
MR BROWN: I do not have a copy of APESMA 1 to 7 as it's described there but I do know that a number of employees when they accepted their offer of ongoing employment used similar - I'm making an assumption here for a document I don't have. My friend might want to concede this. I'm assuming that APESMA 1 to 7, which are the 53 emails which I haven't been provided with, they make reference to a particular wording that a number of them and it would appear to 53, used when they returned their acceptances of ongoing employment. That is conceded but I don't know exactly if they're the wordings of APESMA 1 to 7 but I did discuss this exact same issue with my friend beforehand and she'll tell me if I'm getting it wrong or verballing. It seems to be accepted - and, if I could take you to the next paragraph, which is the petition - now, we don't have the names - - -
PN60
THE COMMISSIONER: I don't want to come to the petition yet. I'm dealing with this issue of the people accepting the offers but in their acceptance expressly telling Nokia Networks, "We want the EPA to continue to apply to us." What I'm troubled by is that that must be known to Nokia and nowhere in its material, particularly that of Ms Akkary, does she tell me that and I'm troubled by the lack of candour from the applicant. If you were to read the applicant's materials, it basically says, look, 395 people have accepted. It doesn't candidly tell me but out of that 395 53 wrote to us and said, "We want the EPA to continue", and I've deeply troubled that that must have been known to the applicant, was within their power to candidly tell me that and for whatever reason they've decided not to.
PN61
MR BROWN: I do have an explanation to that. Answering your question first of all, I don't know whether the word said "we." I know that there were some emails that came back where the individual expressed it but, in terms of your concerns about the lack of candour, you might recall that when the application was filed before my client - well, my client did intend to file affidavit evidence in support but before my client got to do that you made orders and your orders specifically stated that, first of all, the orders that you made had to be sent to every employee and you have a statutory declaration from David Keith, who is with me, that confirms that that was done and one of those orders was that if any employee wanted to make any comment, they were to file. So my client read those orders as if there was someone who wished to come forward, there was an order that specifically dealt with it.
PN62
So I note your concern, Commissioner, but I can explain it in this sense: my client quite rightfully took the view that the Commission was asking any employee who had something to say about it to come forward and, in the same way that my client is the applicant and if there's an employee out there that cavils with it, they are, in a nominal sense, the defendant. They're given an opportunity to do it and we naturally assumed that they would do it under that. I wouldn't like the Commission to think that there was some type of sleight of hand here. There wasn't.
PN63
THE COMMISSIONER: Well, Mr Brown, when I then go to the applicant's outline of submissions, I assume prepared by your firm.
PN64
MR BROWN: Yes.
PN65
THE COMMISSIONER: I look at the submissions on page 6 under section 318(3)(a).
PN66
MR BROWN: Yes.
PN67
THE COMMISSIONER: Where in that does - you know, this is about the views of the employer and the views of the employees. I think it was an obligation on behalf of the applicant to candidly put at least in its submissions that it is aware that the views of at least 53 out of 395 employees who accepted the offer wanted the EPA to continue. There's not anything in paragraphs 17 to 20 that candidly tells me that Nokia knows that and it must have.
PN68
MR BROWN: Commissioner, first of all - - -
PN69
THE COMMISSIONER: Deeply troubled by that omission.
PN70
MR BROWN: Firstly, it did know that. Its submissions don't attempt to in any way misrepresent that and, as I've said, at the time that my client turned its mind to its evidentiary burden, it followed the directions. My client does not speak for the employees and, if I could just say one other point, it seems quite ironic that the same 53 employees have obviously instructed their union that they don't wish their identities to be known to my client and they don't want to attach their correspondence to an affidavit in open court.
PN71
On the one hand my client is being criticised for perhaps not giving the full picture in circumstances where there was on foot, when this document was prepared, a direction that they meet their evidentiary burden, if it be described as such, and, more importantly, they don't want - look, and I don't know for what reasons. No reasons have really been put forward but I don't cavil with it - they don't want their identity to be known. If the suggestion is that my client should have attached all 53 emails with their names on them, that's a way of dealing with it that would have been a bit clumsy but it's for the employees to meet. You know, if their views are to be known, there was an order. They had the benefit of that order. There's no question that they did not have that. If anything, it's been an oversight by my client but we would resist very strongly the suggestion that it's a lack of candour.
PN72
THE COMMISSIONER: Yes, all right. Coming then to the submissions dealing with yours, Mr Brown, when we get to paragraph 13 - - -
PN73
MR BROWN: Yes.
PN74
THE COMMISSIONER: 13(a) you say that:
PN75
If the order is made, the transferring employees would have the benefit of the NES.
PN76
In response to that, APESMA says, well, they've got it anyway. You agree with that, don't you? That is to say it's not necessary for me to make the order for the employees to have the benefit of the NES. They've got it anyway, haven't they?
PN77
MR BROWN: The way it's been formulated there that is correct, yes.
PN78
THE COMMISSIONER: Then you say:
PN79
If the order is made, the transferring employees will have the benefit of the Professional Employees Award and the Telecommunications Services Award.
PN80
APESMA says in reply to that, well, some employees won't be covered by either of those awards and, as I think I've heard you say just now, you accept that. Is that right?
PN81
MR BROWN: I accept the fact that there is the possibility of it but I also make the claim that the union appears to be willing to wound but reluctant to strike on that issue, because we have no actual evidence before the Commission of it, but I must concede the possibility at least that there may be one or more of the 395 employees who could potentially fall between the two awards.
PN82
THE COMMISSIONER: But it must be within the capacity of your client to know this. It knows what they do. It knows what they get paid. It must be able to produce to me a table of the 395 and tell me which ones will be covered by either the Professional Employees Award or the Telecommunications Services Award or otherwise be award free. It must be able to produce that table.
PN83
MR BROWN: My client, the applicant in these proceedings, will employ these people in a few days' time and to produce that type of document you would need to know the person's qualifications. You would need to know what they're required to do to make a sensible assessment under the Professional Employees Award.
PN84
THE COMMISSIONER: Mr Brown, these people have been working for a related body corporate for some time. Your client has decided to make them offers. I might assume, shouldn't I, they've decided to make offers knowing what it is offering these people to do. It knows what they do. It knows what it's going to pay them. I mean, it just didn't make blind offers. Surely it knows everything about these employees and it could produce the table I've just said.
PN85
MR BROWN: The union does not wish to tell us the identity or the qualifications of - - -
PN86
THE COMMISSIONER: Mr Brown, I didn't ask about what APESMA was doing. I was putting it to you that it must be possible for your client to produce a table which is a list of the 395 employees and tells me which ones are covered by the Professional Employees Award, which ones are covered by the Telecommunications Services Award and which ones are award free. Is it able to produce that table?
PN87
MR BROWN: I'd have to take instructions on that but in terms of a theoretical concept, yes. I think a better way of looking at it, and I've already made this concession to the Commission and it's a concession that I made to my friend ahead of this, we accept that there must be someone out there who the combination of their qualifications and what they do means that they are caught by the lacuna between these two industrial instruments. That is conceded.
PN88
THE COMMISSIONER: All right. Would your client then agree not to see the order that it seeks in relation to employees who are award free?
PN89
MR BROWN: I will take instructions on that but that would be a sensible concession.
PN90
THE COMMISSIONER: All right. I'll let you obtain those instructions. Coming then to 13(c), you say if the order is made, transferring employees will have the benefit of the preserved benefits. In response to that APESMA says, well, with or without the order being made they've got the benefit of the preserved benefits. Isn't that right? Because, I mean, the letter of offer isn't conditional upon me making this order, is it?
PN91
MR BROWN: No, it's not and if I - - -
PN92
THE COMMISSIONER: It follows that, regardless of whether or not I make the order, these employees have the benefit of the preserved benefits. Isn't that right?
PN93
MR BROWN: It goes further. They have the benefit of the preserved benefits and they are enhanced but the next bit of my answer is very important to our submission, Commissioner. All my client is seeking under the heading of efficiencies is the ability to deal with these transferring employees and their preserved benefits in such a way that they can be negotiated and that's in the affidavit of Ms Akkary.
PN94
My client makes it very clear. It says my client have gone about this in such a way that it's taken the preserved benefits. It has enhanced them and there's some evidence on that which I will take you to, but obviously they pass from an industrial instrument to contract and no one around this table really needs to have submissions made on the difference between the two.
PN95
What my client is seeking is this: it believes that it can run its organisation more efficiently in such a way that they come over initially with those benefits as a matter of contract. What it means then is its entire workforce are underpinned by the modern awards. Yes, there are 395 employees out there who then have the benefit of a contractual entitlement in terms of the protected benefits and the enhanced benefits and it wants the ability to have those things negotiated. If I could just keep going, because the next bit is rather important.
PN96
The enterprise agreement that we're talking about here, which is almost five years beyond its nominal date, it has problems. It has the initial problem in terms of it excluding the operation of the modern award. It doesn't contain any provision, Commissioner, that allows an individual to negotiate any term of the enterprise agreement. Flipping it, if you were to not make the order, you would be bringing into this population another set of rights which are lesser than the preserved benefits as a matter of contract that have a different status. It could create this complexity, and I don't want to reduce it to absurdity, but if an individual felt that he was not paid 20,000 under his contract or her contract as per the preserved benefits, if they wanted to sue for the $20,000 they'd have to go to a common law court and if they wanted to sue for what they would have otherwise got under the enterprise agreement, they'd have to go to the Federal Circuit Court and sue for a lesser amount.
PN97
What my client is trying to do here is to not create a situation of people losing a particular benefit as the 395 came across. That's sensible. You'd have to think that getting all but 12.8% of a company's workforce to come across to another company, albeit related, is quite a difficult task, given the background of these people. They are very intelligent, very well educated people. That's been done. We've created a set of rights that replicate and enhance and that goes to our submissions under this section. If you don't make the order, it's got that potential to create another class of rights and my client wants that ability to be able to negotiate with these individuals and to negotiate with its workforce, knowing that they all have a common DNA of the modern awards and not having 395 of them with these remnant of the enterprise agreement. Sorry for being long-winded.
PN98
THE COMMISSIONER: Is it proposed over time to have discussions with these employees to maybe contract away the preserved benefits?
PN99
MR BROWN: Yes. Ms Akkary, in her statement, actually gives a concrete example of it and paraphrasing her evidence, which is always dangerous she - - -
PN100
THE COMMISSIONER: Just take me to that paragraph?
PN101
MR BROWN: Yes. I'm referring to the statement of Viviane Akkary, A-k-k-a-r-y, which is exhibit A2. If you go to paragraph 38, paragraphs 38 and 35 are the nub of it. Paraphrasing it it's this, and here's an example: these transferring employees will enjoy, as a matter of contract if the order is made, a range of allowances that are not recognised at this present point of time within the workforce of Nokia. That is going to, again paraphrasing her evidence, make these people prima facie a bit more expensive when you cost them out and she goes on to talk about the desire of the company to, over a period of time, to negotiate these down to a single allowance and she says at paragraph 38:
PN102
Whilst if the order is made by the Fair Work Commission as sought in this application, the transferring employees will continue to have the benefit of the preserved benefits, which include the above entitlements. Nokia will be in a position to negotiate with the transferring employees in the future and to create a single availability allowance which is comparable to and consistent with the existing Nokia Australia arrangements. This would be a matter for individual negotiation and could not be imposed on a transferring employee.
PN103
Now, that's just one example of the way in which my client has been very forthright in this regard. If the order is not made, my client will not be able to have that discussion with these 395 employees, because the transferring industrial instrument has a deficiency in it. It has a number of deficiencies in it which we'll get to later, but that's a good, concrete example of what my client intends to do and what my client has put in her affidavit.
PN104
THE COMMISSIONER: Yes. Coming then to page 9 of your submissions, where we're dealing with the negative impact on productivity, paragraph (a) you say:
PN105
The preservation of different terms and conditions would have the potential to create disharmony among staff and uncertainty as to the terms and conditions.
PN106
Well APESMA answers that by saying by virtue of the fact that you've got the preserved benefits and that's the case anyway, isn't it?
PN107
MR BROWN: But this gets back to what I was saying a moment ago, Commissioner. If the preserved benefits are preserved by not making the order, they are a horse of a different colour. They are things that are immutable. They can't be bargained away. There is no provision under this transferring industrial instrument for any form of individual negotiation. If you were to move to a different area that no party in this litigation seems to want to speculate on and I think that's right, it may well create a situation where you've got 395 employees in a pool of upwards or 800 or 900 employees nationally, but have a different set of entitlements in law as opposed to what they've been gifted at the point that they came across to Nokia Australia.
PN108
I think it's a very important part of our case that it shouldn't be held against my client that it chose very deliberately to preserve and enhance. We say that that actually goes to our client's credit in terms of the balancing exercise that you do. We have to accept, of course, that there is a very subtle difference and important difference between something which is a matter of contract and something which is under an industrial instrument.
PN109
But the whole point - the whole point - of this section of the Act, we would submit Commissioner, it's asking you to balance these two things. On the one hand there is this protection of the terms and conditions and on the other hand there's this other counterbalancing issue of the interest in this particular employer in efficiently running its business. That's what 309 takes you to under the objects.
PN110
We ask you that, in balancing this, we would say it's not a correct consideration to say why would I make this order when you've gifted them many of the benefits either way? We say that goes to my client's credit. It shouldn't be held against it and my client, under the heading of efficiency and the potential to run its business efficiently, should have the opportunity to negotiate these things with individuals and, of course, as it says in Ms Akkary's affidavit, these are things for individual negotiation and can't be taken away.
PN111
THE COMMISSIONER: Yes, but in the cold hard reality, Nokia just needs to say, well, unless you give away all those conditions that you've got contractually, we're not going to give you a pay rise. That might be right but that's a matter for the parties, isn't it?
PN112
MR BROWN: That might be right but all my client is asking for is that opportunity. Commissioner, could I add to my last answer by saying, there's a hint - - -
PN113
THE COMMISSIONER: I guess what I'm asking there is: is it relevant to the question before me that I have regard to the relative bargaining power of an employer and an employee?
PN114
MR BROWN: No.
PN115
THE COMMISSIONER: Why is that?
PN116
MR
BROWN: No. No, because it doesn't fall under any of the headings in
section 318A down to F. Then when you get to G, the public
interest, the
public interest test at G, that's why I put that reference in there to the Full
Bench Commission decision in Aurizon,
where it was very much, well, if you get
into the public interest you have to move away from the specific interests of
the parties
and, if you're going to start looking at probable consequences
under the heading of the public interest, that has to be framed between
the
twin pillars of 
section 309. 
PN117
In
section 309 , the objects of part 28 are this counterbalancing between the
protection of terms and conditions and the interests of employers in running
their business
efficiently. If that's what you wish to have regard to,
Commissioner, it has to come under the heading of the public interest and
the
public interest - - -
PN118
THE COMMISSIONER: Doesn't it also come under the public interest of not undermining collective bargaining?
PN119
MR BROWN: If you were to do that, you would make the same mistake that was made in Aurizon and if I could take you to - now, in the Aurizon decision it was dealing with a different part that had its own objects but there's a very strong theme in Aurizon, in my submission - - -
PN120
THE COMMISSIONER: This was about the termination of agreements, wasn't it?
PN121
MR BROWN: It is, but some of the comments are apposite in answering this particular question and what you find towards the end of the Full Bench decision in the Aurizon matter, is a very strong theme that this - and what was rolled in that case really was this orthodoxy that the Commission has a problem with orders that result in an enterprise agreement falling away or being to no effect. What was determined by the Full Bench was that that was wrong and the Full Bench did exactly what I'm asking you to do and it's to say, well, if you were to have regard to the public interest, you have to - Aurizon says go back to the objects.
PN122
My submission would be that takes you back to 309 and it would be, in my submission, an improper consideration and a consideration against what is the post- Aurizon world, which talks about this notion that somehow there is a predisposition to not terminating agreements and at paragraph 141 in Aurizon, if I could just compose myself for a minute, the paragraphs that I'd want to take you to are paragraphs 140, 141 and 143. What you find in the Full Bench decision is that they found that there was no place for that type of thinking that somehow there's something special about an enterprise agreement that has to be preserved against all other evidence.
PN123
What I wanted to start with my submissions today was to give you a bit of an indication as to the nature of this document. It is five years, almost, past its nominal expiry date. There are a number of particular features of it which make it rather unattractive and not so much a great deal anymore. The notion that somehow that has to be preserved because of a perceived predisposition that one would not make an order that would detract from an enterprise agreement is dead against Aurizon. That's exactly what they said in Aurizon. It was confirmed by the Federal Court. There is no - - -
PN124
THE COMMISSIONER: Hang on, but if Nokia just got its related body corporate to make an application to terminate the EPA, we wouldn't all be here.
PN125
MR BROWN: Okay, no. Sorry, if I understood your question correctly, what you're saying to me is that if Alcatel-Lucent encouraged some sort of a ballot to terminate the enterprise agreement - - -
PN126
THE COMMISSIONER: No, it's past its nominal expiry date. They can just make an application, can't they?
PN127
MR BROWN: I wish it were that easy. My client had three options, Commissioner. I'll lay them on the table. The one that we're here with. Another option would have been to ask A-Lu, after almost five years of negotiations not being able to make an enterprise agreement, to either put a ballot out there to terminate it and that would have been a numbers game or, alternatively, it could have made an application to terminate. If it made the application to terminate, the matters that the Fair Work Commission would have regard to are very different to what would otherwise be a numbers game on just a simple ballot.
PN128
Again, getting back to Aurizon, the initial dispute in Aurizon seemed to be a submission that somehow there's some special thing about enterprise agreements that if you terminate them the world goes to hell in a hand basket and it somehow disturbs the aura of negotiations and for that reason there was a decided reluctance of the Fair Work Commission to make any orders that ever terminated an enterprise agreement. Aurizon turned that right on its head and said, no, that's an improper consideration. It's not there in the objects. It's not there in reality and we would say it's a very short step from the same kind of analysis in Aurizon to where we are today.
PN129
If I'm hearing your question correctly, what seems to be here is the hint that there's something special about these individuals preserving a set of terms and conditions in the form of a transferred industrial instrument that dictates that it be preserved because, pause, you've now raised the question, Commissioner, that something could happen in the future.
PN130
Now, on that particular point in Aurizon there's a warning and it talks about it at paragraph - no, it's a different case actually. It's referred to Aurizon. It's a decision of Re Queensland Electricity Commission Ex Parte ETU (1987) 61 ALJR, where the Full Bench in relation to talking about the public interest and the Kellogg Brown & Root case said the following:
PN131
It should be emphasised that the Commission's consideration of the public interest for the purposes of - - -
PN132
I interpose there to say the then section of the Act 170MH3.
PN133
- - - is directed to the consequences of terminating the agreement. In a given case some consequences will be clearly predictable. Others will be less so. For the most part, the Commission should be guided by the foreseeable consequences of termination, rather than speculation about possible consequences.
PN134
I'm going to suggest respectfully, Commissioner, that your last question about what Nokia could do in the future is really getting into that issue of speculation about possible consequences and should be avoided in your analysis. It's a very long-winded answer, I'm sorry.
PN135
THE COMMISSIONER: No, I'm assisted by that, thank you.
PN136
Next in your submissions on paragraph 9 at (b), it's said that there's a classification structure and career matrix that is currently in place within the business of the applicant and wants to make that available to, I think, the transferring employees. What APESMA says in answer to that is, well, they're already integrated.
PN137
MR BROWN: If I'm asked to give an answer, my first question would be where is the evidence of that? I don't see an affidavit that would assist the Commission in that regard and I think the answer has to be left as a very unsatisfactory one: they're not.
PN138
Ms Akkary's affidavit deals with that in some detail. It's not an uncommon thing for when you bring two organisations together to bring them into some sort of a common classification structure. On any construction it's an issue that leads to greater efficiency and if you want to stretch that submission a little bit further in the absence of detailed evidence, we would also say that it would permit these 395 people to have a better career horizon in the merged business.
PN139
What we have against that is the union saying, well, that's not so. That's the evidence. We're happy to deal with it in that - - -
PN140
THE COMMISSIONER: Yes, all right. Next, Mr Brown, I want to come to APESMA number 2, exhibit number 2. I just want to go through each of these issues and get your reply to them. In relation to confidentiality, you'll see the difference that has been identified between the EPA and the employment contract. Do you accept how that difference is described and I'm deliberately using the word "difference". I don't want to use a pejorative word of "disadvantage."
PN141
MR BROWN: Can I just check what is APESMA number 2? Sorry, that's?
PN142
THE COMMISSIONER: It's the aide memoire.
PN143
MR BROWN: Yes, we do have something to say about that.
PN144
THE COMMISSIONER: I just want to take it row by row, if I can.
PN145
MR BROWN: I'm just trying to think of, well, it doesn't matter the way that I was seeking to deal with it. Could I come at it from a different angle, Commissioner? When I looked at the submissions, which is APESMA 1, the outline of submissions, at paragraph 19 there's quite an astounding submission there that states that the transferring employees would be significantly disadvantaged and it lists 8 particular topics. In the document that I put forward, which was what I was obviously going to try and focus on, which I described as marked for information, which is now - I think you marked it as - - -
PN146
THE COMMISSIONER: I marked it as A12.
PN147
MR BROWN: As A12. What I have done in A12 is I have taken each of the headings that are in 16 and I've added to it the dispute resolution issue that arises out of one of the employee statements and I've added to it the grievance procedure and in my document I have put against it in the left-hand column the contents of the enterprise agreement as it is and in the right-hand column, not surprisingly, I have put the benefit as gifted to them under the employment contract or alternatively in the policy. I don't know whether, because I'm the applicant, I get to talk to my document rather than the document that was prepared by the union.
PN148
THE COMMISSIONER: No, in time you can but I want to go through the union's document first.
PN149
MR BROWN: If I could just find it, thank you.
PN150
THE COMMISSIONER: Yes, of course.
PN151
MR BROWN: I'm looking at APESMA 2, Commissioner, thank you.
PN152
THE COMMISSIONER: Yes. So the first item is called confidentiality. They make the obvious point that the EPA is a public document. They say in the contract there's an obligation to not disclose remuneration benefits. They say employees are therefore less able to determine whether the employer is varying individual employee contracts to remove entitlements. For my own part I don't know whether that takes it very far, because the EPA is minimum conditions of employment and at any point an employer could pay above the odds and no other employee would be any the wiser so did you want to say anything further about that?
PN153
MR BROWN: I have nothing. No, I have nothing. I have nothing to add to the answer but, I mean, clearly what's aimed at there is the person's remuneration benefits and I think the union also says in its submissions that clearly there are individuals out there that are paid way above the preserved benefits and the enhanced preserved benefits as well. We have to accept that but I can't add anything more to the answer that you've proposed.
PN154
THE COMMISSIONER: Yes. Then the childcare benefit currently in the EPA. No equivalent contractual entitlement. That's right, isn't it?
PN155
MR BROWN: No. If I could take you to A12.
PN156
THE COMMISSIONER: Yes, let's do that cross-referencing. That would be useful.
PN157
MR BROWN: If you go to MFI6 on page 14.
PN158
THE COMMISSIONER: Yes, I'm looking at that.
PN159
MR BROWN: Okay. What you have there on the left-hand column at page 14 of A12, no surprise, is the reimbursement arrangement under the enterprise agreement and then I move then across to the Q&A and what had happened and this is in Ms Akkary's affidavit, is that that particular benefit was not only bought out but not bought out on one occasion. On the right-hand column at page 14, the question in the Q&A:
PN160
What is happening to the childcare payments provisions contained in the EPA?
PN161
Answer: This benefit has not been preserved, however, employees who receive this benefit in 2016 will have an equivalent dollar amount permanently added to their base salary going forward.
PN162
Next question:
PN163
Can you please clarify childcare reimbursement? It sounds like you get the amount every year in your salary?
PN164
Answer: Correct. For those who accessed the benefit in 2016 who are now receiving it, an amount has been added to their base salary based upon the actual benefit received in 2016 up to a maximum of 1,500, 1,720 gross. If they accept the Nokia Networks offer, this will be built into their base salary going forward. It is not a one off payment and if you have any questions about how this benefit is being applied to you, please contact your HR representative for more information.
PN165
There will be a number of these items where it's very evident but it's not quite correct, as per the union's submissions, to suggest that there's been some serious detriment to individuals who would otherwise get the childcare benefit.
PN166
THE COMMISSIONER: Yes, so they say no equivalent contractual entitlement. There's no equivalent contractual entitlement to the benefit as described in the EPA but they do have a contractual entitlement to the rolled in rate.
PN167
MR BROWN: That's it.
PN168
THE COMMISSIONER: Yes.
PN169
MR BROWN: That is right. When you say that there is, it's not right to say there is no contractual entitlement. The contractual entitlement is in the doing. If there was a person out there who got this benefit, I should say he or she but it probably is a she, got the dollar amount and will continue to get that dollar amount and presumably, unless the person is one of the 51 who chose to remain with A-Lu, that person will get that benefit going forward. So this is one of them that it, we say, is comparable and we'd probably even say is better but it's not, as the union would put it, that we are taking away childcare benefits and that's something that falls under the heading of the public interest. Definitely not.
PN170
THE COMMISSIONER: Yes, I understand that. The next one on page 2 of APESMA2, sickness and accidental plan, the EPA has incorporated into it a sickness and accident benefit plan. APESMA says no equivalent contractual entitlement. This is just something that becomes subject to policy. Is that right?
PN171
MR BROWN: No, if I could take you to MFI 10, page 21 of A12.
PN172
THE COMMISSIONER: Yes.
PN173
MR BROWN: It's a bit of a - - -
PN174
THE COMMISSIONER: Just hang on. Hang on. I just want to take a note. A12 page - - -
PN175
MR BROWN: A12 page 21.
PN176
THE COMMISSIONER: Yes, just bear with me.
PN177
MR BROWN: No, it can make your head bleed this one but I'll give it a go.
PN178
THE COMMISSIONER: All right.
PN179
MR BROWN: Okay. It will come as no surprise to anyone that different companies have slightly different arrangements in this area but when you look at 3.1.2.1 of the transferring instrument, it's fairly bare and it talks about a particular level of benefit that is one week on full pay, three weeks on half pay, which means a maximum under the benefit of 12 weeks of full pay or 40 weeks at half pay. When you then read across to the next two columns, true it is that they will move to, as of 15 July, a different arrangement but if I can take you to the Q&A and these are the questions that came from the transferring employees, which is the far right column, the question comes:
PN180
How is the Nokia Group salary continuance insurance different to the sickness and accident plan contained in the EPA?
PN181
Answer: We believe that our group salary continuance insurance is a more comprehensive policy, with the potential to provide better protection for our employees. You are welcome to compare it with the FLAU sickness and accident plan. Links to both are available.
PN182
MR BROWN: That takes you in both cases off to documents that are not part of the enterprise agreement either for that matter. When you read on, there's a number of questions there and I think if a fair reading of it would say that if you were looking at it even remotely on an overall basis, the benefit described as the Nokia Group salary continuance is a far better deal and can I make the comment - - -
PN183
THE COMMISSIONER: But isn't the point this: that under the Nokia one, it could be discontinued on 16 July? They'd have nothing.
PN184
MR BROWN: Then again, Commissioner, we'd say you're falling into that error that you should avoid. That is not a - - -
PN185
THE COMMISSIONER: Surely I can attach some weight to something which is there as of right and something which is there at the grace of the employer.
PN186
MR BROWN: I wouldn't describe a contractual benefit.
PN187
THE COMMISSIONER: It's not a contractual benefit. This is not a contractual benefit to the sickness entitlement is it? Where is it in the contract?
PN188
MR BROWN: They are enrolled in it at day one. They are ‑ ‑ ‑
PN189
THE COMMISSIONER: They don't have a contractual right to be enrolled in it.
PN190
MR BROWN: If you are enrolled in it then you are in it. That is gifted to you.
PN191
THE COMMISSIONER: Yes, but at any point in time the employer can discontinue it.
PN192
MR BROWN: I don't have a copy of this decision with me and it's a decision of the New South Wales industrial relations Commission, to which you would no doubt say how could that be relevant. The decision is Vision Publishing and I'll get the citation for it.
PN193
We would respectfully submit in relation to these types of questions, Commissioner, that whilst we're more than happy to answer them and we will answer them and it might be instructive, but ultimately we are here to confront the case that's put against us and what I was going to suggest to you a moment ago was that we have quite an astounding submission by the union that on certain items we are deficient. A12 has the evidence there for you to make that conclusion that that is not the case and whilst it's trite to say that one can think of any number of scenarios that could occur, Aurizon says you have to focus on what is probable. You ask yourself this question and I took you back to that decision, which is quoted with authority in Aurizon. That's the Queensland Electricity Commission Ex Parte ETU (1987) 61 ALJR.
PN194
It should be emphasised that the emphasis that the Commission's consideration of a public interest for the purpose of the particular section is directed to consequences of terminating the agreement. That's where the focus has to be: the consequences of making this order. In a given case, some consequences will be clearly predictable, and I think we're dealing with some of those at the moment. Others will be less so. For the most part, the Commission should be guided by foreseeable consequences of the termination, rather than potential, rather than speculation about possible consequences.
PN195
We are here to be cross-examined by the Commission on these issues for sure but I'm just going to suggest to you that what was put against us was a bald submission by the union that certain things were deficient and they were not. The what ifs that are coming at us at the moment, we say, fall into that category of where the Commission should not stray.
PN196
THE COMMISSIONER: Yes. APESMA2 does seem to go a little bit further than the items dealt with in A12. What do you want to do about that? Do you want an opportunity to reply to APESMA2? I note it only came in today.
PN197
MR BROWN: No, that's fine and what I would ask you to do is that if you were tempted to have a look at APESMA2, one would have much closer regard to A12, because we say that APESMA2 has a certain hint of lacking in candour in it, in that it doesn't even attempt to set out what was communicated to the employees.
PN198
You've invited me to make a comment but if I can look at the next one, which I think is quite interesting, threshold for overtime. Now, I'll take you to A12, if you don't mind.
PN199
THE COMMISSIONER: Yes, page 19.
PN200
MR BROWN: Yes, and page 19 and what I set out there is exactly what is in the agreement and what is exactly in the preserved benefits. Yes, sorry, there's a few things that you'll notice. On the right-hand column there's a material increase in the overtime shift loading, which is a benefit but if you slide back to the left-hand column, it talks about an overtime cut-off, for want of a better word, of 65,000. When you go to the right-hand column, you'll notice that the overtime cut off has moved materially and it's 80,400.
PN201
When you go back to A2, there's a rather astounding submission there. In the submissions, the union does not take issue with something which, not surprisingly, I don't understand why they would take issue with it but they don't. This was a three year enterprise agreement that was made on the cusp of the modern awards coming in and we see these agreements quite often. They were often agreements that were made in haste and the parties lived with the consequences of them but that's where the clause in the enterprise agreement comes from, which says that it applies to the exclusion of any other industrial instrument and we haven't touched upon that yet.
PN202
It has an indexing provision in it and the union does not take issue with the fact that the minimum rates moved in lock step with the various - and the terminology changes, of course, between 2009 and the years that follow and, when you look at the years that follow, there was no increase in July 2009. There was the second national minimum wage order of 4.8% on 3 June and there was the third national minimum wage order of 3.4% on 3 June 2011. My apologies if I didn't say 2010 the year before. One more just snuck in. There was the fourth minimum wage order of 2.9% operative 1 July 2012.
PN203
In my submissions and the union agrees with it, this particular enterprise agreement, at its nominal expiry date, the rates that are in it would have gone up by the increase on 3 June 2010, the increase of 3 June 2011 and the increase operative on 1 July 2012. That is not agreed with but when you go to A2, it seems that they've adopted a different position and they say and column number one on APESMA2 seems to suggest that the indexed notional base cap went up to $80,400. That is not correct. It cannot be that the union accepts the proposition that the minimum rates in the enterprise agreement went up during the three year life of the agreement and they stop and that's our submission. Yet, in APESMA number 2, they want to say that the notional base salary cap - we'll call it the overtime cap, continued on up to $80,400. You've invited me to make some comment about APESMA2, so we say that is a problem. Moving to the next one, the dispute resolution procedure, I find that it's - - -
PN204
THE COMMISSIONER: No, sorry, but with the threshold for overtime, it seems to me that your client accepts that it got to 80,400 because that's why it's chosen that as the figure.
PN205
MR BROWN: No. No, it's gifted it and I can disclose - - -
PN206
THE COMMISSIONER: It must have come from somewhere.
PN207
MR BROWN: I can tell exactly where it came from, Commissioner, is that, as part of the A-Lu negotiations on the making of a new enterprise agreement at A-Lu - and Mr Davies, in his affidavit, goes into great detail about that and we don't have any problem with that. It might not be terribly relevant. I can tell you for a fact that one of the issues in those negotiations was the fact that this agreement died. We now know it's 26 August 2012. I think we all struggled to pick the date. It hit its cap at 26 August 2012 and has fallen into disrepair.
PN208
There's a gentleman out there in the bargaining who is much better with a spreadsheet than I am and I take my hat off to him. He went through all of the decisions and extrapolated them. This wasn't my client. If you extrapolate, I'm told if you take 65,000 in 2009 and you religiously apply all of the national wage decisions to it well beyond the notional expiry date of this agreement, you arrive at the figure of 80,000 - sorry, just trying to read it there - 80,400. That's where the figure came from, Commissioner. We do not accept that this enterprise agreement, after 26 August 2012, was some sort of a magic pudding that just kept on giving and giving and giving. It clearly didn't.
PN209
THE COMMISSIONER: The clause says:
PN210
This salary cap will be indexed to move in accordance with the annual percentage change to the federal minimum wage as determined by the Australian Fair Pay Commission or its successor body Fair Work Australia.
PN211
MR BROWN: Those provisions apply during the life of the agreement. They don't go beyond the nominal expiry of the agreement.
PN212
THE COMMISSIONER: Mr Brown, the life of the agreement. It doesn't say that. No, I don't know that I accept that at all. The agreement continues. Just because it passes the nominal expiry date doesn't mean that provisions cease to operate.
PN213
MR BROWN: That might be something that - no, not the provisions. The union accepts that the minimum wages did not go up beyond the nominal expiry date of the enterprise agreement. Such is in their submission.
PN214
THE COMMISSIONER: Yes, that might be right but that's a very different issue to this clause dealing with the overtime cap. Very different issue.
PN215
MR BROWN: We would submit that the notion that an indexing provision in an enterprise agreement could continue to apply after the nominal expiry date - but before that becomes an issue between everyone here, Commissioner, true it is my client has extrapolated and arrived at the figure and there is no disagreement upon what that figure is, it would seem, but if you look at the left paragraph and the right paragraph, the right side of it is more advantageous than the enterprise agreement and the only thing that changes is on the right-hand side it's a matter of contract, and on the left-hand side, in whatever form it actual does exist and that might be a matter for the Federal Court, it's not as good, but that's a world away from what the union's submissions seem to be about significant - - -
PN216
THE COMMISSIONER: The union's submission is simply that the indexing continued past the nominal expiry date. Based on that it's currently 80,400 and if the agreement continues it continues to be indexed. If the agreement doesn't apply to these people, it gets stuck at 84,000. That's the sum total of their submission.
PN217
MR BROWN: We don't - - -
PN218
THE COMMISSIONER: One has indexing and one doesn't and I think I'm with them on that.
PN219
MR BROWN: That might be a matter for a question of interpretation but we don't accept it, but if you were to be performing this exercise at the point that the morph across and become employees of Nokia Australia, if you look at Saturday, on the left-hand column, Saturday from 12 am Sat to 12 am Sun, 25 per cent. If you look at the right-hand column, the same column: first three hours at 50 per cent, 100 per cent thereafter. On any construction that's a benefit.
PN220
THE COMMISSIONER: Yes.
PN221
MR BROWN: You invited me to go to A2 and make some comments. If I could just keep going but not get bogged down and I'm now covering things that I intended to raise.
PN222
THE COMMISSIONER: That's all right. So dispute resolution procedure, that's dealt with in A12 page 5. Consultation is dealt with in A12 page 2.
PN223
MR BROWN: Yes.
PN224
THE COMMISSIONER: Then we have salary payment date.
PN225
MR BROWN: Before I move on to - - -
PN226
THE COMMISSIONER: Yes.
PN227
MR BROWN: Can I just take you back, please, to MFI1? Commissioner, you've said to my client about what its position might be in relation to an award free person and I do intend to take instructions on that, and I'll act upon that but if you look at MFI2 page 5 to A12, if you go right to the bottom line, and you see this quite often with old, industrial instruments, it runs out of gas at conciliation.
PN228
The proposition that a dispute resolution procedure that cannot go beyond conciliation is somehow better than the extract that I've got there, from the Professional Employees Modern Award 2010 - and I think we can take judicial notice of the fact that there would be a similar provision in the Telco Modern Award - but the proposition that a dispute resolution procedure that runs out of gas at conciliation is better than the rolled gold standard approved by the Fair Work Commission and inserted into all modern awards, that point has to go our way, Commissioner.
PN229
THE COMMISSIONER: It still runs out of gas at conciliation because arbitration is by consent.
PN230
MR BROWN: No. No, the modern award does not have a provision that prevents arbitration. Sorry, Commissioner, before I dare to correct you on that, a modern award dispute resolution procedure does not require the consent of both parties to arbitrate.
PN231
THE COMMISSIONER: 10.3. Runs out of puff at conciliation, unless it's consent arbitration. That's the clause in all modern awards.
PN232
MR BROWN: I withdraw that submission and my submission in reply would be that in the case of the grievance or dispute resolution that they are comparable but that the modern award provision is more detailed.
PN233
THE COMMISSIONER: Yes, I think I accept that part of it.
PN234
MR BROWN: I apologise for misleading the Commission in relation to this particular clause.
PN235
THE COMMISSIONER: No, that's all right. In consultation, that's dealt with in A12 P2, page 2.
PN236
MR BROWN: Yes.
PN237
THE COMMISSIONER: Salary payment date I don't think that's addressed in A12.
PN238
MR BROWN: No, it's not and it is what it is in the union document. If I could go to the next heading, index - - -
PN239
THE COMMISSIONER: I must admit I don't understand the point. Maybe, Ms Anthony, when I come to you, you can tell me why that's a detriment. I don't quite understand that at all. Then indexing and minimum salaries.
PN240
MR BROWN: That one cuts across the union submissions. The union agrees with us in our submissions that the one thing that was agreed, and I don't think it can become unagreed now, is that the minimum rates do not go up on and beyond 26 August 2012. The document that's come through overnight seems to contradict that. There seems to be a suggestion there that if the order were not made and the enterprise agreement continued to apply as a transferred industrial instrument, that the minimum rates would go up. You might not be with me on the issue of the overtime but you must be with me on that issue.
PN241
THE COMMISSIONER: Yes, it would be very odd to have an agreement that had set minimum rates and increases and then just an indexing after that.
PN242
MR BROWN: The next one we have an answer to very quickly, minimum salary role for classifications. If you look at schedule 1 to the EPA for one moment, you'll see at the back of it there's a schedule that has the minimum rates. If you go to the preserved benefits, which is an attachment to the affidavit of Ms Akkary - and the preserved benefits are definitely contractual and that was made very clear - the same schedule appears, Commissioner, but it has - and just so that you know where it came from because it flowed from the negotiations during the enterprise agreement discussions at A-Lu - that those rates all nudged up and, just so that you know, I think you'll find that when this gentleman did prepare this spreadsheet, I think he came to the conclusion that had the enterprise agreement not reached its nominal expiry date almost five years ago, and you extrapolated up, it was like a 23 per cent differential.
PN243
If you go to the preserved benefits, which is in the statement of Ms Akkary, if you go right towards the back of the preserved benefits, it actually replicates those minimums which are in the enterprise agreement. What we say is, even though my client was not bound to do so, it took the minimum rates in the enterprise agreement, it adopted them in the preserved terms and conditions and it enhanced them significantly beyond where those rates got to at the end point of this agreement.
PN244
Just to give you some concrete examples of how this all plays out, if you go to Ms Akkary's affidavit at paragraph 40 on, she gives some concrete examples of how it plays out, this relationship between what was gifted by Nokia and accepted, what the modern award would apply, and what the enterprise agreement provided as at the date of its expiry, which would be the provision which would transfer if this order were not made.
PN245
She gives that example in relation to an entry level person, a mid-level person and she then goes on to say that in her experience they vast majority of these people probably fall into the high classifications and she says, at paragraph 33 of her statement, which is exhibit A2:
PN246
Taking the example of a tertiary qualified engineering person with, for example, ten years' experience at Alcatel-Lucent, then if the orders were to be made by the Fair Work Commission:
PN247
(a) as part of the preserved benefits an experienced engineer would be entitled as a contractual entitlement, to a minimum annual salary of $75,911 per annum; and
PN248
(b) the minimum annual rate of pay under the professional employees award will be 52,474 per annum as of 1 July 2017.
PN249
That's the rate that you'd find. With respect to the same classification under the industrial instrument - transferrable instrument, my apologies, it is noted that (a) or:
PN250
(c) The minimum rate of pay for an experienced engineer with such service at the commencement of the Alcatel-Lucent Employment Partnership Agreement 2009 in May 2009 was 61,372 per annum; and
PN251
(d) the minimum rate of pay for an experienced professional engineer at the nominal expiry date of the Alcatel-Lucent Partnership Agreement 2009 on 26 August 2012 was 68,433.
PN252
MR BROWN: What Ms Akkary is doing there is setting out how it would play out if the order were made and how the order would potentially play out if the order were not made but we strongly submit that what has happened here is that my client has taken the high water mark of the enterprise agreement as at 26 August 2012. Significantly and materially it's attempted to replicate them in terms of their form and content but on the important issue of money, we say my client has gone well beyond what it was required to do and, yes, these people will enjoy a significant benefit.
PN253
Getting back to jury service leave, that is dealt with in my document A12 at - I deal with that one in paid leave, I think you'll find, which is at 9. If you go to page 9.
PN254
THE COMMISSIONER: All right, page 9. Yes, okay.
PN255
MR BROWN: At page 9 on paid leave, we didn't quite understand what the union's submission was. At MFI5, we took all the different forms of paid leave and compared and contrasted them in terms of what they would get.
PN256
THE COMMISSIONER: Yes, I can see that now.
PN257
MR BROWN: We'd have to say, on any construction, comparable but if you were to be guided by anything, Commissioner, you would use A12.
PN258
THE COMMISSIONER: Yes.
PN259
MR BROWN: Community services leave.
PN260
THE COMMISSIONER: Yes, that's dealt with on page 11 of yours.
PN261
MR BROWN: Yes, and family leave. Family leave even I struggled to find, I must admit. That crept in a bit late. I'll take instructions on family leave, because it didn't get a mention in the union's submissions and I'm struggling to find a reference to it. Could you pardon my back for one moment?
PN262
THE COMMISSIONER: Yes, of course.
PN263
MR BROWN: My client tells me that whilst there is a provision in the enterprise agreement for family leave, which is about the ability to request an absence, it's an ability to request. In Nokia it's a matter of policy and I'm assuming the policy there is that employees can request the same thing. That's confirmed. That one took me by surprise.
PN264
THE COMMISSIONER: You've indicated not a significant right, the ability to request.
PN265
MR BROWN: No, my friend and I have both made a valiant attempt to try and line these things up and we are dealing with it quite quickly. Education leave - - -
PN266
THE COMMISSIONER: Then we've got education leave.
PN267
MR BROWN: That's picked up in paid leave, MFI5.
PN268
THE COMMISSIONER: Yes, I'm just looking for it. Where is it though?
PN269
MR BROWN: Yes, I'm looking for it too. Page 9. It turns up at page 12 Commissioner.
PN270
THE COMMISSIONER: Yes, I see that.
PN271
MR BROWN: You get two days of education leave under the EPA and you get two days under the Nokia policy.
PN272
THE COMMISSIONER: Yes. Then we've got defence leave, which is also A12 page 12.
PN273
MR BROWN: Yes, it's dropped down. I think you'll find that's comparable on any stretch of the imagination.
PN274
THE COMMISSIONER: Yes. Then we've got - - -
PN275
MR BROWN: Cashing out of annual leave didn't get a mention in their submissions but I think one of the strong submissions of the union has been that Mr Brown wants accounting for the National Employment Standards when it suits him but not otherwise. In this case, on the cash out of annual leave, my client's hands are really tied by the Fair Work Act, so I don't think we can coin an enterprise agreement that conflicts with a provision of the NES but I don't see how that features in the assessment but I might be wrong.
PN276
Over the page, additional annual leave for seven day shift employees. That is dealt within the Fair Work Act, the additional week's holiday under the NES for shift workers. So they're getting it now but they're getting it under the NES. Now, there was one item which I want to take you back to in A12.
PN277
THE COMMISSIONER: Last one is the legacy shift loadings but I think you've explained to me they're better?
PN278
MR BROWN: Yes. Well, if you got to my document and, again, all I had to work from and it's not a criticism, are the union's submissions, where they say that there was some diminution on remote site hardship allowances. If I take you to paragraph 18, now I'll stand corrected on this. I could not find, if one goes to page 18 of A12, I couldn't find any reference to a remote site hardship allowance in the actual agreement and the only place that that seems to turn up as part of these people coming across to Nokia Australia is in the Q&A and the preserved benefits document, which talks about a remote site hardship allowance.
PN279
I think you'll find that what's gone on there, Commissioner, and I can say this with a degree of certainty, as part of the A-Lu enterprise agreement discussions, there was talk of a hardship allowance and I think that what my client's done there is it's inserted a hardship allowance into the preserved benefits because it was a matter that had been discussed previously in the EPA discussions. If you go back to the union's submissions, they're saying compare the EPA with what's on offer: there's nothing in the EPA. So if you were just taking a binary approach to that one, that one seems to bounce our way. I've meandered around in the document a bit, I'm sorry, Commissioner. Is there any other items that's - - -
PN280
THE COMMISSIONER: No, no - that's been of great assistance to me.
PN281
MR BROWN: Okay. I'm happy to answer your questions, Commissioner, but I'm also mindful of the time, that I've been on my feet for an hour and I'm probably detracting from - - -
PN282
THE COMMISSIONER: No, they were all the questions I had and if you think that there's additional submissions you need to make - you wanted to make that we haven't already dealt with - then please do so but they were the only matters I needed to take you to.
PN283
MR BROWN: Could I just have a moment - - -
PN284
THE COMMISSIONER: Yes.
PN285
MR BROWN: - - pardon - so I can just take instructions on that matter of the award three because if I can get an instruction on that it may tease things out a little bit. Just pardon my back for a second, Commissioner.
PN286
THE COMMISSIONER: Yes, of course.
PN287
MR BROWN: I've taken instruction from the legal counsel for the applicant. As we understood the proposition that was advanced I think, Commissioner, it was to the effect that if the non-award transferring employees were in effect taken out of the mix and enjoyed the benefits of - and I don't think we're in a position to be selective in this regard because that would be an application of variation - the non-award transferring employee would have to get the benefit of the full transferred document.
PN288
I can't - I'd have to accept that I can't pick and choose because it would be - I'm probably praising something that was broader than what you were thinking, Commissioner, but I don't think if we were to carve the non-awards out in an application under section 318 we can't in the process vary the transferrable instrument. That's a different application so I would have to be content with the fact that a person not covered by - I'll be very clear - a person who on 15 July who is not covered by the professional employees modern award and who is not covered by the telecommunications modern award would fall out of this application and they would get the benefit of what the statute says; the transferring industrial instrument. Is that consistent with what you're proposing, Commissioner?
PN289
THE COMMISSIONER: Yes - I mean, what I think I'll ask you to do is - I don't know that I have a draft order.
PN290
MR BROWN: You do have one but it would need a little bit more work.
PN291
THE COMMISSIONER: Yes, because you would just have to say something to the effect of - well, it would have to say something like: "The Alcatel-Lucent Employment Partnership Agreement [2009] will not cover those personnel currently employed by Alcatel-Lucent Australia Ltd who have accepted employment with Nokia Solutions and Networks Australia Pty Ltd and expected to commence on 15 July 2017 and who are covered by" - then insert the two names of the two awards. Doesn't that just deal with it?
PN292
MR BROWN: Yes, that's a more eloquent way of dealing with it.
PN293
THE COMMISSIONER: Yes.
PN294
MR BROWN: You asked a moment ago whether I had any further submissions: can I just ask for a moment just to compose - - -
PN295
THE COMMISSIONER: Yes, of course.
PN296
MR BROWN: - - myself for a moment? Look, I might be traversing issues that I've already made submissions or opening up old wounds but - - -
PN297
THE COMMISSIONER: Well, you'll have an opportunity to do so in reply.
PN298
MR BROWN: I'll sit down.
PN299
THE COMMISSIONER: Thank you.
PN300
MR BROWN: Thank you.
PN301
THE COMMISSIONER: Ms Anthony.
PN302
MS ANTHONY: If the Commission pleases - - -
PN303
THE COMMISSIONER: My first question to you is in light of the instructions that Mr Brown has just received, such that any order I make would not apply to employees who are award-free, does that address the objection on behalf of APESMA?
PN304
MS ANTHONY: Well, we represent a number of our members who may or may not be award-free, who have expressed a preference that the agreement continue to cover them. So it may well - - -
PN305
THE COMMISSIONER: It answers in part a lot of your submission, though, doesn't it?
PN306
MS ANTHONY: The fact that if there were people who were award-free then that would take away the need for our objection or the grounds for the objection?
PN307
THE COMMISSIONER: Well, the objection in relation to the disadvantage you've identified in terms of a loss of unfair dismissal remedy - that - - -
PN308
MS ANTHONY: That particular disadvantage, yes.
PN309
THE COMMISSIONER: - - disadvantage would go away. Your disadvantage that you've identified in relation to the dispute resolution procedure would go away. The disadvantage you've identified in relation to the consultation clause would go away. Am I right about all of that?
PN310
MS ANTHONY: I think one of our witnesses has actually expressed some concern about that dispute resolution procedure not being available to him or her in the future. The point is made that the dispute resolution procedure in an enterprise agreement allows an employee to have access to the Fair Work Commission in relation to - sorry, Commissioner - any matter arising out of the agreement. That opens up a lot more possibilities for an employee to have an avenue to seek conciliation regarding a number of matters.
PN311
It may well be that the same dispute resolution procedure in the award may provide - but it's possible that there are other provisions in the enterprise agreement that would allow an employee - - -
PN312
THE COMMISSIONER: Well, you'd have to identify to me what is it in the agreement that isn't covered in the award or the NES, which would mean they wouldn't have access to the dispute resolution procedure if the EPA no longer applied to them. I'd need you to take me to those clauses in the agreement.
PN313
MS ANTHONY: Look, I haven't got a list prepared and I guess it would be matters which have been negotiated over years in the enterprise agreement and the one that comes to mind, for example, might be the childcare allowance or others that are not simply allowable award matters. It provides an opportunity for employees to have an independent arbiter resolve disputes in the workplace.
PN314
THE COMMISSIONER: Not an independent arbiter: there's no arbitration power.
PN315
MS ANTHONY: Sorry - an independent person to conciliate when it comes to a matter of dispute and we would submit it is an important benefit, that employees who are covered by an enterprise agreement do enjoy, which they would forgo. It is true that they may well be able to take advantage of a dispute resolution process in the award. In our experience that occurs a lot less than people coming to the Commission to conciliate in respect of an enterprise agreement.
PN316
It may well be because there are less matters in modern awards which might be the subject of agreements but nevertheless we would still maintain that it's a lesser dispute resolution - not so much the process but there are less matters upon which they are able to seek that conciliation.
PN317
THE COMMISSIONER: Yes. You can take it that I've otherwise read your submissions and also as you can see my questioning of Mr Brown quite across APESMA too. Is there anything further you wanted to say?
PN318
MS ANTHONY: Commissioner, thank you for reviewing the submissions and we do very much rely upon the ones that we've already submitted as well as the aide memoire. There are just a few points that I would like to make which I think are pertinent, especially in light of the discussion that's occurred so far this afternoon. I'd like to make a point, firstly, by referring to the witness statement of Viviane Akkary and paragraph 27 of Ms Akkary's statement - - -
PN319
THE COMMISSIONER: Let me get to that.
PN320
MS ANTHONY: - - which is on page 9.
PN321
THE COMMISSIONER: Yes.
PN322
MS ANTHONY: In Ms Akkary's statement she confirms that Nokia Australia does not have an enterprise agreement currently. Nokia Australia currently employees approximately 380 employees in Australia and Nokia Australia employees are engaged on different terms and conditions to the transferrable instrument. The current 380 employees are less in number than the amount of a transferring employees and Nokia Australia do not currently have an enterprise agreement and from our point of view, Commissioner, and the point that we'd like to make: this situation differentiates itself from a number of the cases which cover section 318 which have been decided upon by the Commission, where the issue involves a group of transferring employees moving across to a new entity where there may be a lack of synergy between the transferring employees and the instrument that transfers with them and the instrument that's in place in the new organisation.
PN323
Nokia does not have a collective agreement and I think that impacts on many of the considerations that must be taken into account for section 318.
PN324
THE COMMISSIONER: Well, I don't think I'm going to take impacts on many of the considerations. I think it only impacts upon 318(3)(f).
PN325
MS ANTHONY: Yes, I was about to take you to section (3). Well, actually, the - in our view, Commissioner, the application that's before you today is actually an application that transferring employees whose employment conditions have been governed by a collective agreement for some years no longer be permitted to enjoy the advantages and protections that are derived from a collective workplace. In our submission this aspect of the case places the application in direct conflict with one of the key objects of the Fair Work Act.
PN326
Section 3 of the Act states that:
PN327
The object of the Act is to provide a balanced frame work for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by
PN328
MS ANTHONY: - - - if we go down to subclause (f):
PN329
(f) achieving productivity and fairness through an emphasis on enterprise-level, collective bargaining underpinned by simple, good-faith bargaining obligations and clear rules governing industrial action.
PN330
MS ANTHONY: Now, in our submission, Commissioner, Nokia's application is effectively an application to keep Nokia a collective agreement-free environment. I do submit that this aspect colours and impacts upon every one of the factors - - -
PN331
THE COMMISSIONER: No, no - the employees, if they want to collectively bargain with Nokia they have available to them all means under the Act. They could ask their employer, "Do you want to collectively bargain with us?" If Nokia says yes, then they'll engage in collective bargaining. If Nokia says no, then it's open to the employees to get a majority support determination. They have rights under the Act.
PN332
MS ANTHONY: That is true, Commissioner. One of the rights under the Act is that the transferring employee has the right to assume that the collective agreement that's currently covering them will follow them when - - -
PN333
THE COMMISSIONER: Unless this Commission orders otherwise.
PN334
MS ANTHONY: Yes, and we do accept that. However, we're pointing out that they're not moving to a situation where there is a different collective agreement. They're moving to a situation where there is no collective agreement.
PN335
THE COMMISSIONER: I understand that submission.
PN336
MS ANTHONY: I would also submit, Commissioner, that in the submissions and the witness statements that have been put forward by the applicant, there isn't actually any evidence or any reasoning put as to - perhaps if I can take you, Commissioner, to another paragraph in Viviane Akkary's statement to illustrate the point that I'm about to make.
PN337
THE COMMISSIONER: Yes.
PN338
MS ANTHONY: That would be paragraph 18 and this is directly in reference to section 318 and 318(3) and the factors that the Fair Work Commission must take into account. In relation to the employer's views, which must be taken into account, in the applicant's submissions it's stated that the application in the statement of Viviane Akkary set out the views of Nokia Australia. I have reviewed Viviane Akkary's statement and I don't find anything in there other than a wish by Nokia to have employment consistent with the current individual employment contracts that are in place as anything that expresses what the employer's views are in this case.
PN339
THE COMMISSIONER: Why does there need to be anything higher than that? That's their view.
PN340
MS ANTHONY: Well, if I can take you to paragraph 18 where Ms Akkary refers to the Q&A document, which was the employer's explanation to its employees as to why Nokia Networks is taking the steps to prevent the EPA from applying to Nokia Networks. She states:
PN341
The current Alcatel-Lucent Employment Partnership Agreement has expired. It was negotiated for a different entity and a different business. For this reason we do not think it makes sense for the Alcatel-Lucent Employment Partnership Agreement [2009] to transition to Nokia Networks. To achieve this outcome
PN342
MS ANTHONY: - - - and then it goes on to say that this application must be made - our point being, Commissioner, that we see that the application in itself is in conflict with one of the objects of the Act, as I've mentioned, which is effectively to promote workplace relations through collective bargaining - - -
PN343
THE COMMISSIONER: If that was the case, then we wouldn't even have section 318. I mean, clearly the parliament has envisaged that there will be circumstances where in the exercise of my - the discretion of the Commission an order can be made not to have a collective agreement transition. It doesn't say in the legislation that can only occur when the new employer itself has a collective agreement so it must have been in the contemplation of the parliament that it understood that there might be a situation where the old employer had a collective agreement, the new employer has nothing and there's a move from a collective agreement to nothing and that is not inconsistent with the objects of the Act because they provided for the section in the legislation.
PN344
MS ANTHONY: I can't take it any further Commissioner - - -
PN345
THE COMMISSIONER: I understand the submission.
PN346
MS ANTHONY: - - but however, that is our submission.
PN347
THE COMMISSIONER: Yes, I understand that.
PN348
MS ANTHONY: Now, I believe with respect I won't run through the different considerations because I believe in the conversation with - or in the submission and the discussion with Mr Brown that you have actually referred to many of our submissions in relation to those considerations. The point that I would also like to make which also covers the objects of the Act, is that there are provisions in the enterprise agreement relating to childcare and family leave entitlements, which I would submit also are supported by the objects of the Act.
PN349
It's something that we have already been through; the question of whether they constitute a disadvantage or not. In our submission it does constitute a disadvantage and I'll leave it in your Honour's hands to review the difference between the aide memoire that's been put forward by APESMA versus the document that Mr Brown has put forward. However, we would submit that denying employees the ability to have that coverage by the collective agreement also deprives them of a couple of key provisions which I would say are supportive of the general objects of the Act, as set out in section 3.
PN350
The childcare leave I think requires slightly more discussion than I think was given during the examination of the two tables. The childcare provision in the enterprise agreement actually covers - excuse me, your Honour: I'm just going to actually go to the provision in the enterprise agreement.
PN351
MR BROWN: Just while my friend is looking at that, I've sought some instructions from my client in relation to this childcare benefit issue. We are prepared to amend our application or to provide some sort of an undertaking that if there is an individual out there who has accepted as part of his or her employment with Nokia commencing 15 July the additional money - call it a buy-out - if that person wishes to reverse it and revert to what they would have received under the enterprise agreement in the form that it's there, they may do so and I will provide that undertaking in writing, if that might just serve to get the childcare wrinkle out of the equation.
PN352
THE COMMISSIONER: Well, that could be addressed in some amended draft orders that you put up.
PN353
MR BROWN: Yes, and again, rather than having a debate about which one is better or - if a person wishes to revert to 3.3.1 they can do so but it has a consequential amendment in that it will have the potential to vary their base that they've accepted but we're happy to do that.
PN354
THE COMMISSIONER: Yes, I understand.
PN355
MS ANTHONY: Commissioner, the childcare benefit is available, my understanding, to any parent, male or female, for a child that is either enrolled in a government-accredited childcare facility - that includes before-and-after school care. Potentially this could affect all employees with children from any age, from birth, I would suggest, through to secondary school as it's very common for before-and-after school care facilities to be run as childcare centres and my instructions are that all of those employees are able to access that childcare facility.
PN356
Employees who had accessed them in 2016 I believe did have a certain sum of money incorporated into an offer of employment, into the salary that was offered to them. The employees who might have a child, for example, who's in grade six this year and who may well have received a benefit last year will now have that incorporated into their ongoing salary for so many years into the future. Employees who would have availed of the childcare benefit over the next year or two, who might have an infant under two, for example, will not have the benefit of the enterprise agreement and it's a matter which has caused a lot of concern for our members and it's a matter which I would state is clearly a disadvantage.
PN357
It may well be financially that a commensurate amount has been rolled into some employees' salaries but that's not to say that a lot of employees will not suffer a disadvantage if the enterprise agreement is no longer available to them on an ongoing basis. One point that I would like to make about the views of the employees who would be affected by the order: this goes to section 3(a)(ii) of section 318. The evidence that has been put forward under attachment 7 and attachment 8 to the affidavit of Paul Davies is submitted to the Commission as an indication that there is obviously significant opposition among the affected employees to this application and significant support among affected employees for the EPA to continue to cover their employment with Nokia.
PN358
These
expressions of preference were collected at what I would suggest was short
notice and in circumstances were employees are
not usually wishing to make
career-limiting moves by appearing to be in opposition to their prospective
employer. A further point
that I'd like to make in relation to the
subclause regarding whether any employees would be disadvantaged by the order
in relation
to their terms and conditions of employment: I'd like to go
to section 309(a) of the Act, Commissioner, which sets out the objects of this
part regarding transfers of business. Section 309 states:
PN359
The object of this part is to provide a balance between (a) the protection of employees' terms and conditions of employment under enterprise agreements, certain modern awards and certain other instruments and the interests of employers in running their enterprises efficiently if there is an transfer of business from one employer to another employer.
PN360
MS
ANTHONY: Section 309(a) makes reference to terms and conditions of
employment under enterprise agreements and I think it's important to note that
it does
include the words, "under enterprise agreements", and to
provide a comparison of terms and conditions between what people
enjoyed under
a collective agreement versus what they will enjoy via a common law contract of
employment which may well provide
some security for the individual for the
current time, a point that we would like to make which I believe, Commissioner,
you had
made yourself earlier. It provides security to the lifespan of
the employment contract.
PN361
The employment contract is subject to additional contracts of employment being issued by the employer at some point down the track and that could be done both with an incentive attached, for example, an offer of a salary increase at which point some of those terms and conditions could be rolled back or alternatively if employees do not take up the new employment contract that's issued, it could be simply a case of not being able to change roles because they're not able to sign a new employment contract that might be offered to them.
PN362
THE COMMISSIONER: But, Ms Anthony, you heard Mr Brown's submission on that point: he says, "I will fall into grave error if I sit here and start to attempt to crystal ball-gaze about all the possible things that might occur in the future in terms of negotiation or what might be put to employees and the like." What do you say in relation to that?
PN363
MS
ANTHONY: Well, Commissioner, we're not crystal ball-gazing. What
we're pointing out is that they have less security in their
employment terms
and conditions but most importantly, their employment terms and conditions do
not match what they previously would
have enjoyed, which is the protection of
employment terms and conditions of employment under enterprise
agreements. So I would
suggest that this common-law employment contract
does not fulfil the object of the part of the Act as expressed in section
309(a) and my using the example of what might happen down the track is more
just to illustrate the lack of security which the employees
will forego at the
moment.
PN364
That is certainly the greatest concern that is expressed to us by our members; the security of the conditions that are found in the EPA, which they would fear being ruled back at some point in the future. It may or may not occur but isn't that the reason that we have an enterprise agreement confirmed in writing which is an instrument which cannot be varied because it provides that protection to employees, which I would submit a common law contract does not. Now, I would also like to make a point in relation to consideration (c) under section 318, "if the order relates to an enterprise agreement, the nominal expiry date of the agreement."
PN365
Commissioner, the nominal expiry date of the enterprise agreement was 26 August 2012. I would like to refer back to paragraph 4 of Paul Davies' witness statement, which sets out a summary of all of the bargaining for the new agreement to replace the EPA which commenced as early as - according to our records but I would suggest earlier if we were referring to the employer's records - as early as November 2012 and it has been ongoing ever since and continues. There have been a number of applications to the Fair Work Commission over that period of time that Mr Brown described when he is describing the agreement as being five years old and past the nominal expiry date for a number of years.
PN366
It is true. However, it is certainly the case that there has been a very active process to negotiate for a new agreement and that goes to the consideration regarding the nominal expiry date. The reason that there has not been a new enterprise agreement in place since that time is not because the agreement has fallen into disuse and is no longer relevant. It's clearly very relevant to a lot of employees. That's why they've been attempting to negotiate to get the replacement agreement up and running.
PN367
I will refer to the communication materials that were distributed to employees and which are referenced in Viviane Akkary's statement, which confirm that as at the current time, in 2017, Nokia conceded that the parties are very close to reaching an agreement for a new collective agreement to replace the EPA, which I would suggest it's a very relevant agreement and - sorry, Alcatel-Lucent is certainly communicating to its employees that they are in a position for the agreement to continue into the future. That was what was communicated to them in 2017.
PN368
I'd also like to refer to the consideration under point (f), which is the degree of business synergy between the transferrable instrument and any workplace instrument that already covers the new employer. This was the point that I made earlier: there is no current instrument covering the new employer and so consideration (f) in terms of business synergy, I would suggest, it would appear that there should not be an issue that requires to be taken into consideration about whether should the EPA follow the transferring employees, whether that will create a problem of business synergy because consideration (f) seems to apply if there is already a workplace instrument in place but there is not one.
PN369
Further, there has been no information or evidence led in my submission by the applicant that establishes that there would be any issue or discord between the operation of the EPA and any other instrument or any workplace policies, even, that determine the terms of employment of Nokia employees. My submission is based on the scenario that Alcatel-Lucent and Nokia have put in place themselves as this process. They've put together a workplace scenario where affected employees are able to choose between employment with the entity, Alcatel-Lucent, while continuing to be covered by the EPA, while working next to their work colleagues who will be performing the exact same roles they previously performed for Alcatel-Lucent, with those employees to be covered by common-law contracts of employment. In the circumstances it's difficult to see in what way having additional Nokia employees continuing to work in the same workplace while being covered by the EPA would have any negative impact on the business or the business synergy.
PN370
Commissioner, I'd like to refer to also point (g), the public interest. I would like to raise as a very strong point that the point I raised at the beginning, where it's in our submission very much against the public interest that a company can simply state that they prefer not to have a collective work environment as the reasoning for - I mean, they're free to make the application but we would suggest that it's very much against the public interest for such an application to be allowed to - - -
PN371
THE COMMISSIONER: Why? Why? How is the public interest damaged by this? Tell me what the public interest is and tell me how it's damaged.
PN372
MS ANTHONY: Well, Commissioner, can I take you to a case which I have a copy of with me and which I can hand up to you and it's the case of Australian Laboratory Services Pty Ltd.
PN373
THE COMMISSIONER: Has Mr Brown been notified of this?
PN374
MR BROWN: I have a copy.
PN375
MS ANTHONY: I have not given a copy to Mr Brown. I do have another copy here but - - -
PN376
MR BROWN: I'm aware of the decision, Commissioner. I have no difficulty with my friend referring to it.
PN377
THE COMMISSIONER: All right, very good.
PN378
MS ANTHONY: In this decision I'd just like to take you to Commissioner Saunders' comments at paragraph 43 in that case in relation to the public interest. Commissioner Saunders agreed with the comments of Commissioner Hampton in the case of Stratco concerning the public interest in section 318(3)(g) of the Act and made the statement:
PN379
There is public interest in insuring that agreed and statutorily approved arrangements are not put aside lightly and where they are no longer to apply the interests of the employees are safeguarded.
PN380
MS ANTHONY: My mention of the statement is that in the face of the evidence that's been put forward before you today, Commissioner, I would suggest the collective agreement that covers this large number of transferring employees of which a significant number have put forward the preference that they wish for the agreement to continue to cover their employment, I would suggest that such an agreement, which is in place and statutorily approved, should not be put aside lightly. The public interest which - that we wish to argue that - and which I've referred to previously about the objects of the Act being that collective bargaining is something that I referred to at the beginning - sorry, Commissioner:
PN381
The object of the Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by achieving productivity and fairness through an emphasis on enterprise-level collective bargaining, underpinned by simple, good-faith bargaining obligations and clear rules governing industrial action.
PN382
MS ANTHONY: In rolling back the ability of employees to engage in the collective bargaining process to enjoy the ability to negotiate with their employer as a collective, it's clearly something that puts an advantage in favour of the employer in terms of a bargaining process for future terms and conditions of employment and it's not something that I would suggest - I would suggest it's something that has been set out as an object of the Act to say that in the Australian workplace it's something that is considered to be an objective of the Fair Work Commission in implementing all of the sections of the Act.
PN383
So I can't really state it much more strongly than that, Commissioner, other than to say we see that this application is actually working against the objects of the Act and specifically for the purposes - - -
PN384
THE COMMISSIONER: But if the employees want to stay on the EPA they can. They don't have to accept the offers. That's very clear: if you don't want to stay on the EPA, that's fine. It's up to you.
PN385
MS ANTHONY: But if that was true, Commissioner, there would be no reason for having the transfer of business provisions in the Act, because the object of that part of the Act - - -
PN386
THE COMMISSIONER: What I'm saying is these employees - the offers made to them in the full light of day of their future employer's intention to seek to not have the EPA apply to them. They're told, "But if you want that EPA to continue to operate, then just stay where you are. Don't accept our offer." We know that 51 employees elected to either not accept the offer or not respond at all. They get to stay on the EPA. I mean, I just - what do I do with this petition where, you know, employees are saying one thing, that it seems by their conduct in accepting the offer they're really indicating something else.
PN387
MS ANTHONY: But, Commissioner, the Act provides that the instrument will transfer with the employees so the act of making an offer of employment to the employees is made with both employer and employee in the full knowledge that the EPA will transfer with those employees so by them accepting the offer of employment they're not choosing to forgo coverage by the collective agreement.
PN388
THE COMMISSIONER: But this petition to me says, "We the undersigned are employees of Alcatel-Lucent Australia Ltd, who have accepted employment with Nokia Networks and expect to commence employment with Nokia Networks on 15 July 2017." What it should have said was:
PN389
We the undersigned employees of Alcatel-Lucent Australia Ltd who have accepted employment with Nokia Networks in the full knowledge that Nokia Networks would make an application to the Commission to have that agreement not apply to us and expect to commence - - -
PN390
I mean, it just - then it goes on to say: "We wish to make it known our opposition", but it doesn't tell me why they oppose it. It says:
PN391
In our view such an order would have a negative impact on our employment.
PN392
I don't understand, really, from these people, why? I mean, they're not articulating that and I think as Mr Brown rightly points out, anyone who wanted to oppose the order was given an opportunity to make a submission, file a witness statement and although they've freely signed this petition only three employees have bothered to put in a witness statement to explain their situation. So I guess in circumstances where as a matter of procedural fairness every employee has been provided with the opportunity to stump up here and tell me why I shouldn't do it, what weight if anything should I really put on this petition?
PN393
MS ANTHONY: I would suggest a lot of weight, Commissioner.
PN394
THE COMMISSIONER: Why? Why? I told them, "If you want me to not accede to this application then make a submission to me, give me evidence", and I provided every single employee with that opportunity as a matter of procedural fairness and only three decided to take up the opportunity. The others said, "No, we'll ignore the procedural fairness opportunity that the Commission has given us and we'll just, you know, lazily sign some petition that doesn't explain to the Commissioner really why we're opposing this."
PN395
MS ANTHONY: But, Commissioner - - -
PN396
THE COMMISSIONER: What weight do I put on it?
PN397
MS ANTHONY: - - in my experience, in any hearing at the Fair Work Commission or anywhere, it's rare to get any employees providing witness statements. It's possible that we could get a witness who might be about to retire and who doesn't fear for the consequences of coming to court and giving witness against their current employer. That would be the rare exception where an employee - - -
PN398
THE COMMISSIONER: Well, what's the difference between them signing a petition then? I mean, I've made a confidentiality order in relation to the petition.
PN399
MS ANTHONY: Because the employer doesn't know which employees have signed the petition.
PN400
THE COMMISSIONER: Yes, and the employer doesn't know which employees have filed witness statements here.
PN401
MS ANTHONY: That is correct.
PN402
THE COMMISSIONER: So why haven't the other people who signed the petition filed witness statements in accordance with the orders that I gave - in accordance with the opportunity of procedural fairness that I provided?
PN403
MS ANTHONY: Commissioner, there is a much higher level of risk that providing a witness statement - - -
PN404
THE COMMISSIONER: How?
PN405
MS ANTHONY: - - well, because - - -
PN406
THE COMMISSIONER: How is providing a confidential witness statement a greater risk than putting your name to a confidential petition? How?
PN407
MS ANTHONY: Because the person who's actually giving the witness statement potentially might have to get up and give evidence and be cross-examined; the witness statement may well reveal information about the person's employment - - -
PN408
THE COMMISSIONER: So it necessarily follows that I have to give less weight to a petition.
PN409
MS ANTHONY: Well, what we're asking, Commissioner, is the weight that you would give to the petition is that it's a very significant indication that there are a very large number of employees who are not happy to accept - not happy to indicate that the acceptance of the employment meant that they prefer not to be covered by the enterprise agreement that was their transferring instrument and in fact they are expressing their preference that that collective agreement follow them across. I don't think that can be denied from the fact that they've actually put their names on the petition. I think that would be a commonly-used instrument for that exact purpose, to gauge what do those employees - what is their preference?
PN410
THE COMMISSIONER: Yes, but then surely in the decision I then say, you know, "I am required under section 318(3)(a)(ii) to have regard to the views of the employees. X number of employees have signed a petition to say that they think it's a negative impact on their employment but I have no understanding of why they say that." That's all I can about it, isn't it?
PN411
MS ANTHONY: Well, Commissioner, isn't - - -
PN412
THE COMMISSIONER: Isn't that all I can say? That is as high as the petition gets. It's a statement that the employees believe it has a negative impact but they otherwise do not explain it at all.
PN413
MS ANTHONY: The - - -
PN414
THE COMMISSIONER: Isn't that right? That's all I can draw from the petition.
PN415
MS ANTHONY: I would say it does state that they have concerns about the security of the benefits they employ under the - - -
PN416
THE COMMISSIONER: Yes, which ones? Which benefits?
PN417
MS ANTHONY: Well, the last statement - the last sentence, I think, on the petition - - -
PN418
THE COMMISSIONER: Yes, it says: "Negative impact on our employment and on the security of the benefits." What benefits?
PN419
MS ANTHONY: I would suggest all of the ones that they derive from the collective agreement.
PN420
THE COMMISSIONER: Well, how do I draw that conclusion from that sentence, signed by these people? That's a submission from the bar table that I just - how do I deal with that?
PN421
MS ANTHONY: Well, I'm not trying to make a submission from the bar table. I'm putting to you, however, there is a list of names who we submit who are employees who are indicating they want to continue to have coverage of the collective agreement.
PN422
THE COMMISSIONER: Yes, but that's as high as it gets so don't tell me - they can say - all they can say about the petition is a number of employees - sorry, I've forgotten how many numbers on the list - a number of employees have indicated their opposition. They signed a petition. They said it would have a negative impact on their employment and on the security of the benefits under the agreement. However, I'm none the wiser as to why they think that or what benefits they're talking about.
PN423
MS ANTHONY: But does section 318 require them to provide a description of the reasons why they wish to continue the coverage of the collective agreement?
PN424
THE COMMISSIONER: Yes, but if - no, it doesn't, but - - -
PN425
MS ANTHONY: Doesn't it simply state the views?
PN426
THE COMMISSIONER: - - but if they do provide the reasons why - I mean, this is the criticism you're making of the employer. You're saying the employer hasn't really provided good enough reasons why. These employees haven't really provided very good reasons why. So I guess, you know, in circumstances where people provide reasons there is more for me to take into account under 318 than in circumstances where they don't, surely?
PN427
MS ANTHONY: Well, except that I would submit that the Act provides that the collective agreement is a transferring instrument and that these employees are entitled to assume the transferring instrument will follow them across into their new employment. It's up to the applicant to provide reasons to satisfy you that you are able to make this application and from the employees, what they're able to do is provide the views - - -
PN428
THE COMMISSIONER: There's no onus of proof in this matter.
PN429
MS ANTHONY: Well, except that if there is an application being made I would suggest it's for the applicant to provide enough evidence to persuade you, Commissioner - - -
PN430
THE COMMISSIONER: But there is no onus of proof - they have to bring before me enough such that I can tick off on having considered all that I'm required to consider under 318.
PN431
MS ANTHONY: My point in criticising the employer's reasons for the application is to say that that reason appears to be in conflict with the objects of the Act in that one of the objects of the Act would appear to be promotion of collective bargaining within workplaces and the reasons being put forward - - -
PN432
THE COMMISSIONER: How does this not - this is the point I don't understand and particularly since the decision in Horizon that Mr Brown took me to, how is it said that in making the proposed order such that the EPA will not apply to somewhere around 395 employees of Nokia that undermines collective bargaining? They don't lose any of their rights to engage in collective bargaining. They don't lose any of their rights to ask their employer to collectively bargain. They don't lose any of their rights if their employer says no, to make a majority support determination.
PN433
How does, really, in a practical sense, not having the EPA apply to these nearly 395 employees undermine collective bargaining?
PN434
MS ANTHONY: Well, Commissioner, the collective bargaining process that has been ongoing for several years would appear to have been undermined by the imposition of the process for employees to be offered contracts of employment to move to a new corporate entity which conveniently does not have the collective agreement - - -
PN435
THE COMMISSIONER: No, Ms Anthony - you can make that submission and - I'm just trying to - I'm not understanding how what you're just saying answers the question I just asked you.
PN436
MS ANTHONY: The outcome of this process - - -
PN437
THE COMMISSIONER: How does making the order that is proposed - that would mean that nearly 395 employees would not have the EPA apply to them - how does that order undermine collective bargaining in a practical sense?
PN438
MS ANTHONY: The 395 employees who were covered by the EPA and potentially stood to be covered by a replacement to the EPA which by the concession of the employer in this case is quite close to being agreed and implemented to cover this several hundred employees, I would suggest that this process has now meant that the new employees will not be covered if this application is successful - - -
PN439
THE COMMISSIONER: How does it undermine the collective bargaining?
PN440
MS ANTHONY: Well, the EPA which covers them currently provides a platform and an adequate minimum safety net that they would use to provide as a base for the next collective - - -
PN441
THE COMMISSIONER: No, that's not how collective bargaining works. Collective bargaining - we assess collective agreements as against the modern awards. That is the underlying instrument for the purposes of the BOOT, not the enterprise agreement that exists now. We don't compare it to the existing enterprise agreement: we compare it to the underlying modern award. So I don't know that I can accept an argument that, you know, the current EPA provides the base for a new enterprise agreement. In a statutory sense that is not what happens and so I'm still struggling to understand how not having this EPA apply to nearly 395 people undermines collective bargaining when they lose none of their collective bargaining rights.
PN442
MS ANTHONY: At the current time that this process was implemented that several hundred employees who were in a process for bargaining which provided the opportunity to take protected industrial action - - -
PN443
THE COMMISSIONER: They haven't lost it. They won't lose that. If I make this order they don't lose that right.
PN444
MS ANTHONY: Well, if they're not covered by an enterprise agreement I guess they will lose that right immediately the order is made because they will - - -
PN445
THE COMMISSIONER: No - how have they? How?
PN446
MS ANTHONY: They currently have the right when they're covered by the enterprise partnership agreement. I think what will cease is when they commence employment with the new employer they will be outside the scope of the previous agreement. However, what has occurred is that through a process which has been put together by the employer, at this point in time to make offers of employment to several hundred people the outcome of that process will be that if this application is successful, they will cease to be covered by a collective agreement and this employer's workplace will be a non-collective agreement workplace.
PN447
THE COMMISSIONER: This is an agreement that expired on 26 August 2012. Have the employees engaged in protected industrial action?
PN448
MS ANTHONY: Since that date, yes, in negotiations for the new agreement.
PN449
THE COMMISSIONER: They've engaged in protected industrial action, have they?
PN450
MS ANTHONY: Correct, yes - that's in the evidence provided in Paul Davies' witness statement. It's been the subject of several applications to the Fair Work Commission since 2012.
PN451
THE COMMISSIONER: All right. All right. Is there anything further you wanted to say about how this undermines collective bargaining?
PN452
MS ANTHONY: I don't believe I can take it any further, Commissioner.
PN453
THE COMMISSIONER: All right, I appreciate that, Ms Anthony. Is there anything further?
PN454
MS ANTHONY: I believe that covers everything that I wanted to say.
PN455
THE COMMISSIONER: Thank you. I've been greatly assisted.
PN456
MS ANTHONY: Thank you.
PN457
THE COMMISSIONER: Mr Brown, by way of reply I don't think I properly provided you with an opportunity to deal with the petition in terms of what I do with it.
PN458
MR BROWN: I'll mark that as what you could or would do with it. If I could just be very quick in reply - - -
PN459
THE COMMISSIONER: Yes.
PN460
MR BROWN: - - - some moments ago my friend made the comment with reference to the evidence of Ms Akkary to the effect that she'd give evidence that she was either not prepared to collectively bargain or the inference being that she was not disposed to collective bargaining. There is nothing in her evidence in relation to that. There is nothing in the submission. There is no evidence as to what Nokia may or may not do. You might say that's deliberate. Other people might say it's not entirely relevant. But I just wanted to correct my friend on that: there's no evidence in front of this Commission about the intentions of Nokia Australia vis a vis collective bargaining. You then asked my friend, "What is the public interest?" There appeared to be this reversion back to something which is not the public interest, which is the interest of the participants. Now, ultimately that distilled down to what you were just talking about a moment ago. Now, I referred you to the full bench decision, of course, in Aurizon, but the headnote in the Federal Court is probably a bit more instructive on this point.
PN461
The headnote in the full court of the Federal Court - that's Jessup, Tracey and Reeves JJ, 21 May, 3 September 2015. I've got it at 233 FCR. The headnote states - and you must be a little bit careful because of course in Aurizon they were referring to section 171 but we would say the comments are relevant and the headnote says:
PN462
There is nothing in section 3
PN463
MR BROWN: - - - which is the objects:
PN464
or section 171
PN465
MR BROWN: - - - which are the particular objects of that part of the Act, which we would say the same comments can apply to section 90:
PN466
which suggests that the emphasis on promoting productivity in section 3(a) is primarily to be achieved through collective bargaining in good faith, rather than be other means such as termination of an expired agreement.
PN467
MR BROWN: Why we have such relevance on that decision is do you move the same logic across to this particular case and Paul Keating put it very nicely all those years ago when he coined that phrase the deficit Daleks, which had a bit of a ring to it. But what Aurizon seems to have put to bed are those people who think that there is a predisposition in this Commission against doing anything that smacks of either terminating an enterprise agreement or modifying an enterprise agreement or partially modifying its application with a new employer under this section.
PN468
Now, we say Aurizon is very, very clear there: that is not something that you wold have regard to but my friend's got a bigger problem in that there's just no evidence of that and no regard should be had to bar table submissions in that regard. There is nothing advanced in terms of the public interest by my friend and to the extent that she is submitting that somehow what's being proposed here undermines collective bargaining, she is looking in the wrong spot, basically, and it has no application to this analysis. You might recall that there were three statements from an employee and I did forget to just make a comment about one of them: APESMA 6 is an individual who I do not know and don't need to know his or her name or what they're employed as. But it would appear that at paragraph 7 that person's concern seems to be that they may be transferred to some other employing entity.
PN469
Now, you might recall that in the affidavit of Ms Akkary, my client basically started with the proposition: "We can't make you transfer to Nokia. If you wish to remain at Alu you can remain at Alu." My client was very overt about the fact that if you chose to remain at Alu those negotiations on that enterprise agreement will continue but I'm not here to represent Alu so I really shouldn't have much to say about that. But there is no application by Alu to terminate any agreement. It should be presumed that with the 51 who chose to remain life will move on.
PN470
But getting back to APESMA 6: the individual seems to act on the assumption there that he or she might be transferred to some other employer. Of course, we know that on transfer prisoners and not employees, it's not just something that can occur. So APESMA 6 can be conveniently put into the category of very little weight. In relation to the other two unnamed employees - on the basis that my client is prepared to proffer a different type of order that would excise from the equation those people who are non-award.
PN471
That really deals with the person who had a problem about the consultation provision because he or she claimed to be non-award. The person who was worried about their unfair dismissal has been dealt with. In respect to your question about the petition: first of all, I think it's been a bit exaggerated, the fears of people, but if the fears of people are that they don't want to have their names brought forward, well, that's fine. But it must also be remembered that 51 of them prior to accepting the offer, at the point of accepting the offer, had no difficulty telling their employer that they had a problem with it.
PN472
So 13 per cent of them, prior to being asked to go across, were prepared to say, "I'd rather hang on to it." 96 signed up to the petition and we're assuming that some in the 96 are the 51. It must be. So 24 per cent - it's not a numbers game. If this were an application of a different colour - if this was an application to terminate an agreement it would be a numbers game. If the Federal Government, when it was setting out the objects of this particular said it was a numbers game, we'd be doing some very, very different mathematics. We would make the comment, as you have, Commissioner, that someone just simply saying, "I have a preference" - it really doesn't assist the Commission to determine the matter in circumstances where the employer, we say, through the affidavit of Ms Akkary, has set out what the employer wanted, what it wanted to achieve; has gone to great detail in terms of trying to mitigate any of the changes that may have occurred when people moved employers and to replicate benefits and Ms Akkary has set out in we say quite detailed as to the things that this client wants to achieve.
PN473
It says that it would find it difficult to achieve that if it had 295 employees who go across on conditions which cannot be - cannot be - individually negotiated. There is no wrong in all of that but as you've said, if these 295 people, having arrived at Nokia on 15 July wish to collectively bargain, the world is their oyster. The world is their oyster. My client would like the opportunity, if it's there, Commissioner, to reframe the order. Whilst our primary submission in relation to child care is there is no detriment but if that be an issue my client will proffer an undertaking that if an individual who has in fact - I want to say - had bought out the current entitlement, which is to retreat back to what was in the enterprise agreement, that can be facilitated. That deals with the child care issue.
PN474
So what are we left with? We're left with a petition. We're left with a petition and we say it carries very, very little weight in circumstances where the employer has put evidence on that deals very much about the balancing of a competing interest in relation to running this particular business efficiently. If the order is made we say there is no disadvantage. There certainly is no significant disadvantage. The ability of these people to collectively bargain is in no way, shape or form affected or impacted. It makes a situation where my client has a situation where it knows that the common DNA or the common backbone to the minimum terms and conditions will be under the revised order the terms and conditions of the two modern awards as augmented by contracts of employment that have been entered into by very intelligent people who've had every opportunity to consider the options that were available to them and voted with their feet, if the Commission pleases.
PN475
THE COMMISSIONER: Yes, thank you, Mr Brown. Mr Brown and Ms Anthony, I've been greatly assisted by the submissions. I will take a short adjournment until 5.45.
SHORT ADJOURNMENT [5.34 PM]
RESUMED [5.44 PM]
PN476
THE COMMISSIONER: I have been greatly assisted by the parties having filed and served materials and by the submissions made today and the Commission is in a position to announce its decision. On 13 June 2017 Nokia Solutions and Networks Australia Pty Ltd made an application pursuant to section 318 of the Fair Work Act seeking orders from the Fair Work Commission that the Alcatel-Lucent Employment Partnership Agreement [2009] will not cover those 395 personnel currently employed by Alcatel-Lucent Australia Ltd who have accepted employment with Nokia Solutions and Networks Australia Pty Ltd and expected to commence on 15 July 2017.
PN477
It is sought that the order come into effect from 15 July 2017. In the light of opposition from APESMA and some employees, the matter was programmed for hearing and the applicant and APESMA filed and served materials in support of and in opposition of the application respectively. Having considered the application the material filed in support of the application, the materials filed in opposition of the application and each of the matters that I am required to take into account, pursuant to section 318(3) of the Fair Work Act, in the exercise of my discretion and balancing the relevant competing issues, I have decided to grant the application subject to the applicant submitting an amended draft order that addresses matters dealing with employees who are considered award-free and also the child care benefit in clause 3.3.1 of the Alcatel-Lucent Employment Partnership Agreement [2009].
PN478
I require those draft orders to be filed and served by 4 pm tomorrow and subject to those draft orders dealing with those issues I will issue those orders and my further reasons for decision will be issued in due course. The Commission is adjourned.
ADJOURNED INDEFINITELY [5.46 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #A1 APPLICANT'S OUTLINE OF SUBMISSIONS DATED 28/06/2017 PN9
EXHIBIT #A2 STATEMENT OF VIVIANE AKKARY................................... PN10
EXHIBIT #A3 STATEMENT OF MOHAN VANKADARA............................ PN13
EXHIBIT #A4 STATEMENT OF RAHMAN FLAWN..................................... PN14
EXHIBIT #A5 STATEMENT OF JEREMY JAMES........................................ PN15
EXHIBIT #A6 STATEMENT OF LIAN IGNACIO.......................................... PN16
EXHIBIT #A7 STATEMENT OF GARY RUDDY............................................ PN17
EXHIBIT #A8 STATEMENT OF SUNEL THEERTHAM.............................. PN18
EXHIBIT #A9 STATEMENT OF VLAD VOLTAR.......................................... PN19
EXHIBIT #A10 STATEMENT OF ANARD SHINDE...................................... PN20
EXHIBIT #A11 STATEMENT OF KORG NARAKESARI............................. PN21
EXHIBIT #A12 DOCUMENT ENTITLED "COMPARISON OF VARIOUS PROVISIONS OF THE ALCATEL-LUCENT EMPLOYMENT PARTNERSHIPS AGREEMENT 2009 COMPARED TO THE CONTRACT OF EMPLOYMENT AND MODERN AWARDS" PN22
EXHIBIT #APESMA1 OUTLINE OF SUBMISSIONS DATED 05/07/2017... PN27
EXHIBIT #APESMA2 "AIDE MEMOIRE KEY DISADVANTAGES OF EMPLOYMENT CONTRACT".......................................................................................................... PN28
EXHIBIT #APESMA3 OUTLINE OF WITNESS STATEMENT FROM PAUL DAVIES PN29
EXHIBIT #APESMA4 REDACTED WITNESS STATEMENT REFERRED TO AS EXHIBIT APESMA2................................................................................................................ PN30
EXHIBIT #APESMA5 UNREDACTED WITNESS STATEMENT REFERRED TO AS EXHIBIT APESMA2.............................................................................................. PN31
EXHIBIT #APESMA6 REDACTED VERSION OF APESMA3..................... PN32
EXHIBIT #APESMA7 UNREDACTED VERSION OF APESMA3............... PN33
EXHIBIT #APESMA8 REDACTED VERSION OF APESMA4..................... PN34
EXHIBIT #APESMA9 UNREDACTED VERSION OF APESMA4............... PN35
EXHIBIT #APESMA1/A PETITION ATTACHED TO STATEMENT OF PAUL DAVIES................................................................................................................................... PN42
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