[2015] FWCFB 95

The attached document replaces the document previously issued with the above code on 23 January 2015.

The citation in paragraph 1 has been corrected to correctly refer to the Full Bench decision [2012] FWAFB 5401.

Timothy Zahara

Associate to Vice President Catanzariti

 

Dated 23 January 2015

[2015] FWCFB 95
FAIR WORK COMMISSION

DECISION


Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 6, Item 5—Application to terminate an enterprise instrument—award
Sch. 6, Item 4—Application to make a modern award to replace an enterprise instrument

Telstra Corporation Limited
v
CPSU, the Community and Public Sector Union and Others
(EM2010/2503)
CPSU, the Community and Public Sector Union and Others
v
Telstra Corporation Limited
(EM2011/1)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT SMITH
COMMISSIONER JOHNS

 

SYDNEY, 23 JANUARY 2015

Application for the termination of 11 existing enterprise instruments to be replaced with a modern award. Draft award agreed between the parties. Parties bound by modern award - whether unions should be expressed to be covered by the award. Telstra Award 2014 to be made - order to be settled by member of full bench.

Introduction

[1] By decision dated 27 June 2012 ([2012] FWAFB 5401) a Full Bench decided, against the background of the statutory criteria contained in the Fair Work Act 2009 (FW Act), that an enterprise award for Telstra Corporation Limited (Telstra) should be made and established a process for report back. We do not repeat the findings of the Full Bench. This is a continuation of those proceedings before a Bench reconstituted by the President.

[2] The initial Full Bench referred the parties into conference to settle the terms of the award with Senior Deputy President Hamberger and subsequently Commissioner Lewin. Since that time the parties has worked extensively to settle a number of outstanding matters. The final discussions between the parties have now led to total agreement.

[3] On 16 December, the parties presented a new Telstra Award 2014 (Proposed Award) for approval by this Bench.

The Proposed Award

[4] We are satisfied that the Commission is empowered to order the making of a modern award in the terms of the Proposed Award and to terminate 11 current enterprise awards by a combination of sub-item 4(2) and sub-item 9(2) of Schedule 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act).

[5] We are also satisfied that the Proposed Award:

[6] We are further satisfied that given the specific nature of the Proposed Award with its focus on the organisational needs of the enterprise, that the rates are properly fixed minimum rates.

[7] Five matters are worthy of note in making the Proposed Award. The first is that it covers, with one exception, the entire business of Telstra. The exception is the retail side of the Telstra business. The parties have agreed that this aspect of the business is better regulated by the General Retail Industry Award 2010 [MA000004]. We accept this approach.

[8] The second matter is the five additional days provided for personal/carer’s leave from the ten provided for in the NES. As the Full Bench noted in its earlier decision, Telstra has its history in the Australian Public Service and this is a provision which has remained since that time. In 2003 an entitlement to 10 days of sick leave at full pay and 10 days of sick leave at half pay was converted into 15 days per year of paid personal/carer’s leave. In the circumstances, given this history and a continuation of award regulation recognising this benefit, we will supplement the NES to the extent agreed by the parties.

[9] The third relates to the hours of work. Telstra has maintained, for relevant employees, ordinary hours of 36.75 per week. Telstra’s history is one of a public service background and the hours have been derived from that history. For the reasons we gave in the Australian Public Service modern enterprise award decision 1 we will maintain those hours.

[10] The fourth matter relates to the provisions in relation to redundancy. There has been much change over the years by agreement with the parties and in proceedings in the Commission. The focus has been on reducing the retention period which was a feature of the award when employees were within the Australian Public Service. This has led to enterprise specific provisions of which the parties are now also agreed. We accept the proposed redundancy terms and will supplement the NES accordingly.

[11] Finally, we turn to the agreement in relation to the parties bound. The Proposed Award seeks to cover a number of unions who have members at the enterprise. We accept the genuine desire of the parties to maintain harmonious workplace relations but the Commission has not found it necessary, in providing a fair and relevant minimum safety net of terms and conditions, to go beyond covering the employer throughout Australia and its employees listed in the classifications. While accepting that it is permissible under the FW Act to bind unions to modern awards, given the changes to the constitutional underpinning of the FW Act, we do not find it necessary, in this enterprise award, to go beyond that contained in other modern awards.

Conclusion

[12] With the one variation we have decided, we will make the Telstra Award 2014. We are satisfied that the Proposed Award provisions comply with the modern award objectives and the minimum wages objectives. Further the Proposed Award is consistent with the decision issued on 27 June 2012 [[2012] FWAFB 5401].

[13] The Order will be settled by Deputy President Smith.

Seal of the Fair Work Commission with Vice President Catanzariti's Signature

VICE PRESIDENT

Appearances:

M Tamvakologos with K Greig and L Gorcoran for Telstra Corporation Limited.

L Benfell for the Community and Public Sector Union.

R Eason for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

S Herrington for The Association of Professional Engineers, Scientists and Managers, Australia.

Hearing details:

2014.

Canberra:

December 17.

 1   [2015] FWCFB 616.

Printed by authority of the Commonwealth Government Printer

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