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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                                    

 

DEPUTY PRESIDENT MASSON

DEPUTY PRESIDENT MILLHOUSE

COMMISSIONER O'NEILL

 

AM2021/85

 

s.158 - Application to vary or revoke a modern award

 

Application by Telstra Corporation Limited

(AM2021/85)

 

Telstra Award 2015

 

Melbourne

 

10.00 AM, THURSDAY, 10 MARCH 2022

 

Continued from 24/12/2021

 


PN1          

THE ASSOCIATE:  Matter AM2021/85, section 158 application by Telstra Corporation Limited, for hearing.

PN2          

DEPUTY PRESIDENT MASSON:  Good morning.  I'll start by taking appearances please, firstly for the applicant.

PN3          

MR M FOLLETT:  Yes, if the Commission pleases, Follett seeking permission to appear on behalf of Telstra Corporation Limited.

PN4          

DEPUTY PRESIDENT MASSON:  Thank you, Mr Follett.  I'll deal with permission to appear once we've heard from the other parties, thank you.

PN5          

For the CEPU?

PN6          

MR J PERKINS:  If the Commission pleases, Perkins, initial J.

PN7          

DEPUTY PRESIDENT MASSON:  Mr Perkins, do you take no objection to Mr Follett appearing on behalf of Telstra?

PN8          

MR PERKINS:  No, I do not.

PN9          

DEPUTY PRESIDENT MASSON:  Thank you.  For the CPSU?

PN10        

MR A NASH:  If the Commission pleases, Nash, initial A.

PN11        

DEPUTY PRESIDENT MASSON:  Is any objection taken to permission to appear being granted to Mr Follett, Mr Nash?

PN12        

MR NASH:  No objection.

PN13        

DEPUTY PRESIDENT MASSON:  Thank you.  And for APESMA?

PN14        

MS M BUCHANAN:  If the Commission pleases, Buchanan, initial M.

PN15        

DEPUTY PRESIDENT MASSON:  Thank you.  Ms Buchanan, do you take any issue with Mr Follett being granted permission to appear?

PN16        

MS BUCHANAN:  No objection, Deputy President.

PN17        

DEPUTY PRESIDENT MASSON:  Thank you.

PN18        

MS BUCHANAN:  Thank you, your Honour.

PN19        

DEPUTY PRESIDENT MASSON:  My colleagues and I have conferred, prior to the hearing, we're satisfied that the matter's invested with sufficient complexity such that the Commission would be aided by permission to appear being granted and we so grant it, Mr Follett, thank you.

PN20        

MR FOLLETT:  If the Commission pleases.

PN21        

The members of the Commission hopefully should have before them the whole range of materials relevant to the present application.  Most presently relevant for today's purposes is our outline of submissions, dated 7 February 2020.

PN22        

We also move on two witness statements, the first of those is a witness statement of Darren Brian Fewster, dated 7 February 2022, with some 51 annexures.  That statement and those annexures have been made available, electronically, by my instructors, to the Commission.  Can I confirm that the members of the Bench have that statement and those annexures?

PN23        

DEPUTY PRESIDENT MASSON:  Yes, we have received them late yesterday afternoon/evening.  Yes, we do have access to it.

PN24        

MR FOLLETT:  Yes.  Can I ask that that statement be marked?  I should indicate that we've received confirmation from each of the three unions appearing today that they've no need or intention to cross-examine Mr Fewster.

PN25        

DEPUTY PRESIDENT MASSON:  There's probably a few questions the Bench may have, Mr Follett.

PN26        

MR FOLLETT:  Yes.  Well - of Mr Fewster?

PN27        

DEPUTY PRESIDENT MASSON:  Yes.

PN28        

MR FOLLETT:  All right.  In that case it might make sense that I call Mr Fewster.

PN29        

DEPUTY PRESIDENT MASSON:  Yes, thank you.

PN30        

MR FOLLETT:  I understand he's on the line.

PN31        

DEPUTY PRESIDENT MASSON:  Yes, thank you.  I'll have my associate swear Mr Fewster.

PN32        

THE ASSOCIATE:  Mr Fewster, can you please state your full name and address?

PN33        

MR FEWSTER:  Yes, Darren Brian Fewster.  I've recently relocated to Perth, so my new address is, as set out in the statement, at St Georges Terrace in Perth, Western Australia.

<DARREN BRIAN FEWSTER, AFFIRMED                                    [10.14 AM]

EXAMINATION-IN-CHIEF BY MR FOLLETT                             [10.14 AM]

PN34        

DEPUTY PRESIDENT MASSON:  Mr Follett, your witness.

PN35        

MR FOLLETT:  Yes.  Mr Fewster, just confirming, your name is Darren Brian Fewster?‑‑‑Yes, that's correct.

PN36        

And your current business address is Level 17, 125 St Georges Terrace, in Perth?‑‑‑Yes, that's correct.

PN37        

You're currently employed by Telstra Corporation Limited, in the role of Executive Transformation, Communications and People?‑‑‑Yes, thank you.

PN38        

I understand, Mr Fewster, you've prepared two statements for the purposes of these proceedings?‑‑‑Yes, that's correct.

PN39        

Do you have access to those statements presently, Mr Fewster?‑‑‑Yes, I do.

PN40        

The first of those, dated 7 February 2022, 122 paragraphs and 51 annexures?‑‑‑Yes.

***        DARREN BRIAN FEWSTER                                                                                                       XN MR FOLLETT

PN41        

Have you had an opportunity to review that statement recently?‑‑‑Yes, I have.

PN42        

Are there any changes you wish to make to it?‑‑‑No, other than as set out in the supplementary statement.

PN43        

Yes.  Do you adopt that statement as your evidence in the proceedings?‑‑‑Yes, I do.

PN44        

Could I have that statement now marked?

PN45        

DEPUTY PRESIDENT MASSON:  Yes.  Mr Fewster's first witness statement, (indistinct) referred to, will be marked A1.

EXHIBIT #A1 WITNESS STATEMENT OF DARREN FEWSTER DATED 07/02/2022

PN46        

MR FOLLETT:  Mr Fewster, you referred to a supplementary witness statement, which is dated yesterday, 9 March 2022, eight paragraphs in length with one annexure.  Have you had an opportunity to read that statement recently?‑‑‑Yes, I have.

PN47        

Are the contents true and accurate?‑‑‑Yes, they are.

PN48        

Do you adopt it as your evidence in these proceedings?‑‑‑Yes, thank you.

PN49        

Could I have that marked as well?

PN50        

DEPUTY PRESIDENT MASSON:  Yes.  We'll mark the supplementary statement of Mr Fewster A2.

EXHIBIT #A2 SUPPLEMENTARY STATEMENT OF DARREN FEWSTER DATED 09/03/2022

PN51        

MR FOLLETT:  Could I just ask you, Mr Fewster, the basis for the supplementary witness statement?‑‑‑Essentially, in relation to the naming of the entities and the timing of the naming of those entities, as the restructure takes place, and the timing of the restructure, as it takes place.  I'm having trouble loading that second statement, sorry, at the moment, Mr Follett, so I'm just - it's possibly lost in the screen but, yes.

***        DARREN BRIAN FEWSTER                                                                                                       XN MR FOLLETT

PN52        

The restructure requires a scheme of arrangement?‑‑‑Yes, correct.

PN53        

You (indistinct) that in your first witness statement?‑‑‑Yes.

PN54        

Is that scheme of arrangement been approved yet?‑‑‑It has not.

PN55        

Now, I think you refer, in your first statement, to an intention to change the name of Telstra Corporation Limited, to Telstra InfraCo Limited?‑‑‑Correct.  That's right.

PN56        

Has that name change occurred yet?‑‑‑That has not occurred as yet.

PN57        

Yes, all right?‑‑‑So, yes, the award is expressed to cover the three entities that will carry on the enterprise of Telstra.  But until such time as restructure is approved, and then implemented - sorry, I'm not being very clear.  The employees covered by the Telstra Award, who will be employed by Telstra InfraCo Limited, remain employed by the company today, which is Telstra Corporation Limited.

PN58        

I have no further questions for Mr Fewster, please the Commission.

PN59        

DEPUTY PRESIDENT MASSON:  Thank you.

PN60        

Just a few questions.  We might just work through the changes that are proposed in the application, Mr Fewster.  Just on the first point, in relation to coverage, I think, in the outline of argument, it's said that most employees covered by the award currently, will be employed by one of the three entities, which I'll refer to, InfraCo, Amplitel and Telstra, should I take from that, there may be some employees who are currently employed by Telstra - sorry, some employees currently covered by the award who will not be employed by one of those three entities?‑‑‑Thank you.  Our intention is that all employees covered by the award will work for one of those three entities.  The vast majority of employees will work for Telstra Limited, which we originally referred to as ServeCo, in communications with employees.  A group of employees work for Telstra Amplitel, which most employees have moved to Telstra Amplitel, and then the remainder of employees will work for Telstra InfraCo, and remain with Telstra Limited, essentially.

***        DARREN BRIAN FEWSTER                                                                                                       XN MR FOLLETT

PN61        

No, I was just curious when it referred to the term 'most', whether there would be some employees who - my vernacular - might fall through the cracks in terms of being employed by one of those three entities at the point when those three entities come into place.  Now, I understand Amplitel already has, but InfraCo will at a later date.  Would there be any employees that would fall through the cracks or would they be employed by one of those three entities?‑‑‑Your Honour, they are all award‑covered employees and also our legal employees at what we call band 1, band 2 and below will be employed by the new entities.  The only distinction is there will be what we are calling a top hat company established over the three entities which will employ all executives of Telstra Corporation Limited as it is today and that's why there is probably a distinction in the wording.

PN62        

Am I right to assume that those employees who would fall into that category of executives are not currently covered by the Telstra Award?‑‑‑That's correct, your Honour.

PN63        

Okay.  Thank you.  Just to my colleagues, are there any other questions you have in relation to the coverage issue?

PN64        

DEPUTY PRESIDENT MILLHOUSE:  Not on my part, thanks, Deputy President.

PN65        

COMMISSIONER O'NEILL:  Not from me, thank you.

PN66        

DEPUTY PRESIDENT MASSON:  Thank you.  All right.  I might just then move on to some questions in relation to the substantive changes, I guess, to the terms of the award.  For my part I don't have any questions in relation to the casual clause.  To my colleagues, are there any questions on that proposed change?

PN67        

DEPUTY PRESIDENT MILLHOUSE:  No questions from me regarding that, thank you.

PN68        

DEPUTY PRESIDENT MASSON:  All right.

PN69        

COMMISSIONER O'NEILL:  Nor me, thank you.

***        DARREN BRIAN FEWSTER                                                                                                       XN MR FOLLETT

PN70        

DEPUTY PRESIDENT MASSON:  Moving on to preferred hours arrangements - and I probably need to refer to both preferred hours arrangements and the multiple discrete periods of work clause with this first question, and it goes to, I guess, one of the protections that is advanced in support of the application for the change.  It goes to, in the case of the preferred hours arrangements - one of the protections is that an arrangement that has been agreed to and documented as (audio malfunction) may be terminated by either party on four weeks' notice, whereas in the multiple discrete periods of work clause, 19.15, termination is, as I understand it, based on three months' notice.  For my part, I'm just seeking to understand why a distinction is drawn in the notice period between the two clauses?‑‑‑The clauses, your Honour, were the subject of lengthy negotiations between ourselves and constructed with the union parties just as a prelude.  I seem to recall the distinction we made there is that the hours of work for the first category of workers was more likely to be more regular in nature day‑to‑day and therefore the four weeks was considered sufficient largely in relation to day workers for the termination of those arrangements.  Whereas, with the second category, we thought it more likely - and I may have to seek just further guidance from the members of my team on this, your Honour - that the arrangements would be more of the nature where you need to plan ahead in relation to your lifestyle circumstances and your family circumstances, so we wanted to give more time for people to be able to plan ahead and have certainty about those arrangements in that category.  We landed on four weeks as being more sufficient, but it's still a suitable amount of time in the former category.

PN71        

I see.  All right.  So, to paraphrase it, my understanding is what you're saying is that in terms of an ability of an employee to adjust their personal arrangements to accommodate a change, more notice might be required in relation to an agreement around multiple discrete periods of work of a shift worker as opposed to preferred hours arrangements other than a shift worker.  Is my understanding correct?‑‑‑That's much more eloquently put, your Honour, than I did.  Yes, that's exactly what - - -

PN72        

I think you unfairly overstate my capacity to understand your evidence, Mr Fewster, but, anyway, thank you.  Deputy President and Commissioner, do you have any particular questions you wish to ask in relation to the preferred hours arrangements before I move to ask some specific questions on the discrete periods of work?

PN73        

COMMISSIONER O'NEILL:  Could I just ask a follow-up in relation to what you were just saying, Mr Fewster.  So essentially what I've heard you say is that in relation to the multiple discrete periods, employees need - or are considered to need more time so that they can plan their arrangements.  The way I understand the clause, it requires the employee to give three months' notice.  I understand your rationale and the context of Telstra having to provide an extended period of notice to terminate those arrangements, but I'm still not quite following the rationale for why an employee would, if it suited them, need to give that extended period of notice compared to the preferred hours clause?‑‑‑Yes, to my knowledge I think it's in relation to ensuring from a business perspective that we have coverage in relation to those arrangements and we have the ability to roster, so we often will roster eight to 12 weeks in advance in terms of that workforce and the way that they operate.  So, the three months gives certainty to both parties and enough time to plan in relation to those arrangements.

***        DARREN BRIAN FEWSTER                                                                                                       XN MR FOLLETT

PN74        

All right.  Thank you.

PN75        

DEPUTY PRESIDENT MASSON:  Just a further follow‑up question.  Does that then suggest that a person who is a shift worker and might enter into an agreement for discrete periods of work, their working arrangements will affect and will be more affected by other employees in the required coverage of a shift worker as opposed to a person who has the preferred hours arrangements where they are not so - their hours of work are not so driven by coverage of the work of others.  Is that - - -?‑‑‑I think that's a fair way of describing it, your Honour.  There is much more planning associated with the shift work arrangements and environment than the day arrangements and environment.  We have a sophisticated, I think, way of planning and organising the business which will still allow us to readily facilitate these sorts of arrangements at the request of employees and we do see it as being of benefit to those shift employees, but it is a more rigorous and organised system of work in the shift environment.

PN76        

Okay.  All right.  Anything else, Commissioner or Deputy President, on 19.14 before we - - -

PN77        

COMMISSIONER O'NEILL:  No, thank you.

PN78        

DEPUTY PRESIDENT MILLHOUSE:  No, thanks.

PN79        

DEPUTY PRESIDENT MASSON:  Moving to the change proposed in clause 19.15 and some of the related changes in the award, can I just ask a question first in relation to clause 20.4 of the award - and I'll allow the parties time to go to 20.4, which is the clause dealing with 'When overtime is payable'.  Have you got that clause handy?‑‑‑If the Commission can provide me with a couple of moments to make sure I have that open.

PN80        

Even though the borders have opened, I'm well aware that communication with the west is still seriously impacted by some residual resistance from WA?‑‑‑We're doing our very best, your Honour, and having made it across the border - - -

PN81        

With an extraordinary handicap, yes.  Having lived there for 13 years, Mr Fewster, I can tip a bucket on the west, so it's okay?‑‑‑Okay.  Having got through the borders eventually I have similar buckets, but it's just taking a little while to load, your Honour, for me.  If it suits your Honour while it does load, I'm happy to - - -

***        DARREN BRIAN FEWSTER                                                                                                       XN MR FOLLETT

PN82        

All right.  I'll just refer to the particular issue I'm interested in.  Clause 20.4 refers to when overtime is payable to part‑time and full‑time employees.  At (a) it talks about 'for work performed which is in excess of the maximum ordinary time hours' in clause 19.2 and I won't go to that.  Then it goes on to say under (b):

PN83        

For work performed outside the span of ordinary hours (or the individual employee's ordinary hours prescribed under an agreed preferred hours arrangement in accordance with clause 19.14.)

PN84        

So if for example an employee under that clause entered into an agreement that provided for them, for the sake of the example to work from 8 until 12 midday and then from 4 until 8 pm because it suited their personal circumstances, if they were required to work outside of those periods of time as I understand (b) they would be entitled to receive overtime payments.  Is that correct?‑‑‑Yes, that's correct, your Honour.

PN85        

All right, I have got that right.  In relation to a shift worker who has entered into an agreement to work discrete periods of work, and again let's use an example, let's say - and I don't know what shift rosters you work, but if ordinarily they were working from 12 midday to 8 pm, and for the sake of the example entered into an agreement to work from let's say 10 am to 1 pm and then 2 pm to 4 pm and then 6 pm to 9 pm, I'm not sure if that adds up, but in that case if that shift worker were required to work overtime outside of those discrete periods of work what would they be entitled to and where would that be entitlement conferred within the award?‑‑‑In terms of shift workers and day workers the principles are the same in relation to work that they perform outside their preferred shift arrangements, and I think - it's essentially you would find it under 18.4 clause 3, your Honour, which is where work is - work performed is outside 36.75 hours per week.  So it's a total week arrangement which would entitle them to overtimes, whereas the day worker anything outside of their standard daily amounts is where - - -

PN86        

Can you just point me to the clause you've just referred to?‑‑‑So I've just opened it up, but I believe it's the clause you are looking at and work performed in excess of 36.75 hours per week, 20.4(c), your Honour.

PN87        

I see.  Would that not capture the issue covered in (b) as well?‑‑‑Well, we do express it as or in the clause, and I think it really is attempting to distinguish between the work of a day worker who's entered into an agreed amount of agreed days.  So (b) sets out span for a day worker, and then (c) captures work of a shift worker, and any work outs above 36.75 hours per week.

PN88        

I was just curious as to why 19.14 was referred to and not 19.15, but I understand your answer to be that in any case (c) would pick up any additional hours required to be worked by a shift worker outside of - - -?‑‑‑Yes, yes.

***        DARREN BRIAN FEWSTER                                                                                                       XN MR FOLLETT

PN89        

- - - the hours or the arrangement of hours that they had agreed to work?‑‑‑Yes, your Honour.

PN90        

Okay.  All right.  Can I just now move to another question in relation to clause 19.15.  Now, again tell me if my understanding is incorrect in relation to how the clause works, and I'm referring to the application of shift penalties where the hours of work of a shift worker are such that it's either afternoon shift, so it finishes after 7 pm and before midnight, or nightshift in that it finishes subsequent to midnight and before 9 am.  As I understand currently if continuous hours of work, let's say again an eight hour shift and I don't know if that's somewhat archaic in Telstra and you may have moved to 12 hour shifts, but for the sake of the hypothetical an eight hour shift is worked such that it finishes after 7 pm, let's say it finishes at 8 pm.  My understanding is that the shift penalty of 15 per cent would be applied to all of the hours worked on that shift that finished at 8 pm, is that correct?‑‑‑Yes, I think that's correct, your Honour.  So essentially if you have agreed shift hours and you work any part of that shift outside those shift hours beyond it then, yes, a penalty would apply across that shift, that whole period of the shift.

PN91        

Yes.  So it's not just to those hours that fall after 7 pm, it's to the whole shift?‑‑‑Yes, I believe that's my understanding, your Honour.

PN92        

All right.  But as I read the proposed change where there are discrete periods of work worked by a shift worker it is only each discrete period of work if it falls let's say beyond the hours for afternoon and nightshift that would attract a particular penalty payment.  Is that correct?‑‑‑Yes, your Honour, I think that you would again find if someone splits their shifts across the day it is where the work falls after 7 pm.  So let's say you have a shift from 10 to 1 during the day and then from 6 to 9 the split for 6 to 9 would attract the  penalty if that - - -

PN93        

Yes, I see?‑‑‑For that whole shift, or part of the shift, sorry.

PN94        

That might be contrasted I believe with the provision in the SCHADS award.  No, that's probably not a question for you, Mr Fewster, sorry, but I'm just trying to understand that's the way - - -?‑‑‑Yes, your Honour.

PN95        

- - - it applies.  All right.  And then an allowance is payable for working multiple discrete periods of work, and that's said to be I believe 2.8 per cent of the standard rate per day capped at 1.38 per cent of the standard rate per week.  As I calculate it, and I might be wrong, that comes to around $2.51 per day.  Does that sound about right?‑‑‑Yes, I'd say, yes, that maths is about right, your Honour.

***        DARREN BRIAN FEWSTER                                                                                                       XN MR FOLLETT

PN96        

And that's about $12.41 per week.  So that's an allowance that's paid to employees for working on particular - particular working arrangements of - I don't like using the term 'broken shifts' because that's not the term used in the variation, but multiple discrete periods of work?‑‑‑Yes, your Honour.

PN97        

All right.  Perhaps I will turn to my colleagues to see if they have any questions.

PN98        

DEPUTY PRESIDENT MILLHOUSE:  Nothing further.

PN99        

COMMISSIONER O'NEILL:  Sorry I was going to chip in there on the same issue in terms of the allowance.  Can I just ask how that quantum was arrived at, what the basis, if any, for that particular amount was, and again it's probably not a question for you, but it's quite a lot lower than in other awards, for example the SCHADS award.  So I'm curious as to how you arrived at it?‑‑‑To my understanding we have not sought a variation in relation to those arrangements in the Telstra award, which as you would know has not been the subject of any review since its - since it came into effect.

PN100      

So do you mean there's already a provision for a broken shift allowance of the amount; is that what you're suggesting?‑‑‑I think in our discussions with our unions - I'm sorry, I think our (indistinct) unions we did have a bit of a discussion about what the number we thought would be appropriate for this payment would be when we considered other amounts, and we did draw from other awards, and this is the amount that we did arrive at, sorry, Commissioner, as what we thought would be an appropriate amount.  As the Bench your Honour Deputy President Masson and yourself have pointed out it's probably not a particularly large sum, but we arrived at that as being an appropriate sum to consider for the award.  There's not - there wasn't a lot of maths or science behind it, it is just the amounts that we have put forward as a protection in the proposed variation.

***        DARREN BRIAN FEWSTER                                                                                                       XN MR FOLLETT

PN101      

All right.  Thank you.  And the other thing I was interested in is the proposal provides for a maximum of three discrete periods during a day.  Again just the rationale for arriving at that number?‑‑‑We thought that, and this is again in our constructed discussions that we had with our union colleagues, we thought that if you move beyond that, you really are potentially making it onerous on an employee to organise her day, and also we often – we also always considered the health and safety of employees, and having to bounce between different shifts we thought three would and should be a maximum that we contemplate in terms of the amounts.  We thought it was a reasonable number of breaks and about choice for employees as well.  So you might think about school pick‑ups and drop‑offs, for example, as something where you might be able to break up your arrangements over the course of a day, but going beyond three we thought might be a bit complex for both an employee and the business to come at and maintain.  So it was just again a little bit of balance and thinking what would be best for employees and for the business in that regard.

PN102      

Thank you.  My final question, and it goes to both the multiple discrete periods, but also the same principle in relation to the preferred hours.  One of the important safeguards that you're proposing is that the agreement with the employee be in writing, and that it be employee‑initiated, these flexibilities.  I'm just wondering whether you considered a further safeguard of the initial request by the employee being in writing?‑‑‑We did discuss that, to my recollection, in our meetings, but we thought as long as the request was genuinely made by the employee and it's documented, we thought that was a sufficient control in relation to how it could operate.  We are very much aligned with our union on this one in terms of making sure that any request that is made is genuine in nature and from an employee, and there will not be, as you will note, any request by Telstra to these sort of arrangements.  That includes sort of hiring practices where we sort of set out the potential arrangements that might, you know, be open to people.  It's genuinely, solely about an employee's choice, and as the Commission will note, it is something that there is a rapport(?) in relation to those flexible arrangements from our employees, which is coming through in our poll surveys, and anecdotally in discussions with employees, and also in our cross‑company forums on our sites, such as this.

PN103      

Thank you, Mr Fewster.  Deputy President, they were the only questions I had in relation to this issue.

PN104      

DEPUTY PRESIDENT MASSON:  All right.  Now just moving on to the final change proposed, which is in relation to meal breaks.  I understand here that by contrast to 19.14 and 19.15, which requires those flexibilities to be proposed or sought by an employee, as I read the meal break clause it's simply by agreement between the employer and the employee.  Presumably that could be at the request of an employee where an employee says, look, I'd rather work through my meal break, I'm only working a six‑hour shift, is that okay, and his supervisor after consideration says, yes, that's fine.  But presumably it could also be at the request of the supervisor, such that the supervisors requests an employee to work through their meal break, they have a chat and the employee says, yes, fine, I'll work through.  Is my understanding correct, it could be initiated by either?‑‑‑It is by agreement, as expressed in the variation, your Honour, so that is a correct interpretation.

***        DARREN BRIAN FEWSTER                                                                                                       XN MR FOLLETT

PN105      

(Indistinct) particular reason why that's a slight difference to 19.14 and 19.15, because the examples that you cite in support of the application are really examples of where an employee might have sought that flexibility, as opposed to where the employer, but there might be a circumstance in which the employer might seek it, correct?‑‑‑Yes, your Honour.  On the wording itself, I think that is a correct interpretation.  Again, our intent is very much about employee choice here, and we always have due regard of course to the health and safety of our employees and the periods they work.  But the example I think – one of the examples is that an employee working a six‑hour period and requesting not to take a break at five hours, they're the circumstances we envisage where this would most operate, but I do accept your interpretation that it could be at Telstra's request as well, having regard to obviously the health and safety of our people.

PN106      

Just further to that, as I read the current clause there doesn't seem to be - and if I'm wrong in this please let me know – there doesn't seem to be a capacity to require an employee to work through their meal break.  It simply mandates that an employee must have an unpaid meal break of 30 minutes up to 60 minutes after five hours, and so there's simply no capacity under the award to require a person to work through or beyond their meal break.  Is that correct?‑‑‑Yes.  That's correct, your Honour.

PN107      

One of the examples you cite as justifying, or in support of the application is an emergency‑type situation.  Did the parties consider introducing a provision of the type that exists in other awards where an employee may be required to work through their meal break, to deal with a particular emergency, for example, subject to the payment of particular penalties that would ordinarily apply in those other awards?  Did the parties consider that?‑‑‑To my recollection we didn't have any discussions to that effect.  It is covered already in relation to our shift workers, but not other forms of work in the award.  We did not discuss it though to my knowledge in relation to more conventional day work arrangements, but shift work does cover that sort of emergency situation and the ability to work through.

PN108      

But as I read 21.3, and I think that's the clause you're referring to, they may be required to remain in attendance during their scheduled meal break.  It's a little bit unclear to me what penalty, if anything, would be payable in circumstances where an employee were required to remain and work beyond their meal break for a period of time before taking their meal break?‑‑‑Yes.  I would have to look at the clause in detail, your Honour, but as I understand it, yes, an employee may be required to in those circumstances, but there is no penalty set out in the Telstra Award, and just the ordinary rate of pay, to my recollection, applies to those circumstances.

PN109      

How significant an issue is this?  I mean, you've cited two examples.  I think one was of a HR person.  They just want to go with the flow, so to speak, and finish off some work.  Having presided over some HR people, I don't want to be unkind about their work practices, but – so, that's one example you cite.  The other – sorry, we've probably got some HR people on the line I've just - - -?‑‑‑We do, your Honour, and I'll have a discussion with them after this proceeding.

***        DARREN BRIAN FEWSTER                                                                                                       XN MR FOLLETT

PN110      

Yes.  But then you've got – you've cited I think two examples.  One is the just finishing off a piece of work, and the other is that more of an emergency‑type situation where it's convenient to complete the work before having the meal break?‑‑‑Yes.

PN111      

I mean, the other two changes which you – the substantive changes, 19.14 and 19.15, seem to be strongly supported by feedback you've received from employees through the various surveys?‑‑‑Yes, your Honour.

PN112      

There's a very large percentage, as I read the survey results, who want greater flexibility in their hours of work?‑‑‑Yes, your Honour.

PN113      

Is the meal breaks one one informed more from anecdotal feedback?‑‑‑Yes, I think that's a good observation, your Honour.  The focus of our discussions with employees have really been about the flexible hours that suit their family and circumstances, and so not so much in relation to when they may take meal breaks, but it is something again that we have asked people about and they have expressed that desire for flexibility.  In terms of, you know, the demand and what people are mostly thinking about though, it is about structuring the way that they work, whether it be day workers or shift workers.

PN114      

Telstra's a very large organisation.  I'm not sure – it might have been included in the material - how many thousands of employees?‑‑‑Approximately – I think it is – obviously it changes, but approximately 25,000 permanent employees in Australia, your Honour.

PN115      

So the effectiveness of the protective mechanism, in this clause, that is Telstra managing the occupational health and safety issues surrounding the taking of meal breaks is very much reliant on the quality of leadership you have at the workplace level, correct?‑‑‑I think that's right and also what we call second-line oversight as well.  So I have a health and safety team of approximately 120-130 people who work closely with the business and business leaders (indistinct), but you're very much, as you would appreciate, your Honour, relying upon the leadership in the business.  If I did - I would point to one empirical aspect in my statement as well, where, in our pulse surveys, I think it was over 80 per cent of people did want flexibility, when they choose to take their meal breaks.

***        DARREN BRIAN FEWSTER                                                                                                       XN MR FOLLETT

PN116      

But the point being - sorry, cut to the chase, the point being that the protection against abuse of this provision, (1) obviously you've got an employee that doesn't have to do it, they don't have to agree to it.  It's not unknown, however, for some supervisors to be somewhat overbearing in requests of employees.  I'm not suggesting that's the case in Telstra, but elsewhere it can be.  So, ultimately, the protection against an overbearing supervisor pressing an employee, 'Look, how about you just work through the day, we really need to finish this job', would be the discipline with which, putting aside an employee can not agree, but the discipline of Telstra's leadership and supervision, to properly monitor the taking of meal breaks?‑‑‑Yes, I think that's fair your Honour.  Yes, it very much would come down to the quality and expectations of leadership and - no, I agree with the proposition put forward, your Honour.

PN117      

Would I also be correct in assuming that it's unlikely that a request at all to a meal break, out in the field, on a particular day, is going to be escalated to HR and Health and Safety, it's going to be something that's going to be discussed and agreed between the technician, for example, and their immediate supervisor?‑‑‑Yes, I agree with that, your Honour.

PN118      

All right.  It would be impracticable to do otherwise, correct?‑‑‑Yes, I think that's right, your Honour.  Yes.

PN119      

Well, that answers the questions I had, in relation to that particular provision.  Are there any other questions, Deputy President or Commissioners?

PN120      

DEPUTY PRESIDENT MILLHOUSE:  Nothing further from me, thank you.

PN121      

COMMISSIONER O'NEILL:  Nor me, thank you.

PN122      

DEPUTY PRESIDENT MASSON:  Thank you.  All right.  Well, Mr Fewster, that concludes the questions that I have.

PN123      

Now, I understand that the union representatives had indicated, Mr Follett, that they did not have any questions for Mr Fewster.  I just wonder, however, whether any of the questions asked by myself might have provoked a few further questions, or whether it's simply necessary to go back to yourself, Mr Follett?

PN124      

MR FOLLETT:  They have provoked one question from me, Deputy President, so I think it would be appropriate that the union representatives be given an opportunity to consider that.  If I might have leave to ask a question, in relation to a question asked by Commissioner O'Neill?

PN125      

DEPUTY PRESIDENT MASSON:  Yes.

***        DARREN BRIAN FEWSTER                                                                                                       XN MR FOLLETT

PN126      

MR FOLLETT:  Mr Fewster, you were asked a question by the Commissioner about the three month period of notice necessary to terminate a multiple spread periods of work arrangement, do you recall that question?‑‑‑Yes.

PN127      

And you gave some evidence that one distinction was the necessity for the business to ensure it had adequate coverage if that arrangement were terminated?‑‑‑Yes.

PN128      

In 19.15(f)(ii) there is a capacity to terminate such an arrangement, by agreement, at any time?‑‑‑Yes, that is correct.  Yes.

PN129      

If the business, a hypothetical question of course, but if the business was satisfied of its capacity to adequately cover the termination of an arrangement, would you envisage agreement being reached in a period of lesser than three months?‑‑‑I think it would actually be quite a commonplace situation that the agreement, provided there was, again, no disadvantage to any employee, could be terminated earlier.  But three months allows a crossover of the scheduling of shifts, as we - and scheduling of arrangements in the business.  We look as far as eight to 12 weeks in advice.  So I do envisage that it could be done earlier, on most occasions.

PN130      

Yes, thank you.  They're the only further questions I had, Deputy President.

PN131      

DEPUTY PRESIDENT MASSON:  I just wonder whether, for the sake of completeness, just to clarify with the representatives.

PN132      

Mr Perkins, was there anything that was raised during the Bench's questioning that causes you to wish to ask any follow up questions?

PN133      

MR PERKINS:  No, there isn't, Deputy President.

PN134      

DEPUTY PRESIDENT MASSON:  Thank you.  Mr Nash?

PN135      

MR NASH:  No, I have no questions for Mr Fewster. Thanks.

PN136      

DEPUTY PRESIDENT MASSON:  Thank you.  Ms Buchanan?

CROSS-EXAMINATION BY MS BUCHANAN                               [10.56 AM]

***        DARREN BRIAN FEWSTER                                                                                                XXN MS BUCHANAN

PN137      

MS BUCHANAN:  Yes, I have one question, concerning the response given about coverage.  I think, Mr Fewster, you referred to that - it would be executives that would not be covered by the Telstra Award.  Could you clarify whether there is any proposed change to the coverage of the award?‑‑‑No proposed change.  Executives are not covered by the award today, neither are our lawyers, at Telstra, and our retail employees are covered by the Retail Industry Award.  There is no change to the coverage proposed.

PN138      

Thank you, Mr Fewster.

PN139      

DEPUTY PRESIDENT MASSON:  Thank you.  Anything else for the witness, Mr Follett?

PN140      

MR FOLLETT:  No, Deputy President.

PN141      

DEPUTY PRESIDENT MASSON:  All right.  Thank you.

PN142      

Mr Fewster, thank you for attending and giving evidence today, you are now released from giving evidence, thank you?‑‑‑Thank you, your Honour.

PN143      

You can obviously remain on the line, or you can disconnect, that's a matter up to you.  Thank you?‑‑‑Thank you.

<THE WITNESS WITHDREW                                                          [10.57 AM]

PN144      

DEPUTY PRESIDENT MASSON:  Mr Follett?

PN145      

MR FOLLETT:  Yes.  That completes the evidential case, in support of the application.  In the absence of any intention, I think, from any of the unions to call evidence, I would propose to say some very, very brief comments about the application itself.

PN146      

Firstly, just one very minor housekeeping matter, there's an amendment to the submissions required.  If I could ask the members of the Commission to note, at page 14, footnote 31, there's a reference to the Full Court decision in the SDA penalty rates case, the citation is incorrect for the Federal Court Reports, it should be page 368, not 401.

***        DARREN BRIAN FEWSTER                                                                                                XXN MS BUCHANAN

PN147      

The nature of the amendments that the applicant now seeks are contained in annexure DF52, to Mr Fewster's supplementary affidavit, in exchange for that version of the amended modern award filed with the application.  The only change being made, as explained in the supplementary statement itself, is to the definition of Telstra, and it's now proposed to refer to Telstra Corporation Limited and Amplitel.

PN148      

The explanation for that, as given by the witness, is that consistent with the very final paragraph of our submissions, which seek effective operation date for any variations as being the date of the determination itself.  Should that date predate the occasion upon which Telstra Corporation Limited is renamed there would be potential, a very real potential that a very large number of current employees would drop out of award coverage.  So it's at this stage necessary to retain Telstra Corporation Limited in the place of Telstra InfraCo.

PN149      

When the restructure is complete the strict legal position is that no further change would be necessary because of the operation of the Corporations Act, section 161 of which operates to the effect that a change in name of an entity doesn't change its legal obligations or status and doesn't create a new entity in any sense, and the Commission will be well familiar with a whole range of awards that refer to entities which have long since been renamed with no effect obviously on the actual legal coverage.

PN150      

Be that as it may there is capacity in section 159 of the Act to vary modern awards to accommodate a changed name, and that may be another application that may be made at an appropriate time once the restructure is complete.

PN151      

In terms of the application itself I won't rehearse now the submissions made in support of it, nor would I rehearse in any detail the nature of the amendments that have been proposed.  It's apparent from the questioning of Mr Fewster from the Bench that there is a good level of familiarity with the nature of those proposed amendments.  They're obviously summarised in paragraph 9 of the submissions, and as has been noted more than once those amendments, at least prior to the commencement this morning, were not opposed by the unions covered by the award.

PN152      

A couple of very short matters of emphasis.  Firstly, paragraph 25 of the submission refers to a previous Full Bench decision about the word 'necessary' being the principal operative word in the variation power, and there the Full Bench said:

PN153      

It seems to us that necessary to achieve the modern awards objectives in a particular case is a value judgment taking into account the 134 considerations to the extent they are relevant, having regard to context, including the circumstances pertaining to a particular modern award, the terms of any proposed variation and submissions and evidence.

PN154      

The other point of emphasis is drawn out in the final sentence of paragraph 26, and the authority referred to in footnote 15, and this is particularly pertinent in this case given the (indistinct) and the nature of the criteria under section 134.  Many of those criteria have no immediate relevance or application to the nature of the variations, such that the Commission's focus will be upon those criterial which are relevant and do bear upon the variation, and in some cases it may be sufficient that one of those criteria alone is sufficient to make the variation necessary.  And in the particular context of this case the two that we most readily place emphasis on that appear to have the most ready scope of operation are (g) as an overarching criterion, being the need to ensure a simple, easy to understand stable and sustainable modern award (indistinct), and (d) being the need to promote flexible modern work practices and the efficient and productive performance of work.

PN155      

They are the two modern award's objective criteria which in our submission have the most resonance, and indeed with respect to a number of the variations the only resonance has persuasive relevant considerations, albeit - - -

PN156      

DEPUTY PRESIDENT MASSON:  Mr Follett, sorry, just a question there.  Would it be fair to say also that (c) may have some work to do?

PN157      

MR FOLLETT:  Yes.  A bit like the penalty rates case, that same overarching proposition that insofar as working flexibilities would encourage persons who would not otherwise be capable of working a straight eight hours, for example due to family or caring responsibilities, the capacity to split shifts or expand the ordinary hours could in certain circumstances increase workforce participation.

PN158      

I should also note, although it's not a particular criteria that we call in aid of the application, but it's one that needs to be considered, in (f), impact on employment (indistinct), and also (da) being the need to provide additional remuneration.  That's obviously a criteria that needs to be considered, just like all of the criteria.

PN159      

DEPUTY PRESIDENT MASSON:  Yes.

PN160      

MR FOLLETT:  The chapeau to section 134 refers to a fair and relevant minimum safety net of terms and conditions, and one point I wish to emphasise with respect to that is the observations that are essentially at the heart of the Full Court's judgment referred to in footnote 31 of the submissions, which was an attack upon the reasoning of the Full Bench in the modern award penalty rates case, and in particular the reference to 'contemporary circumstances', and the Full Court had cause to observe - we refer to paragraph 51.  I understand the Commission probably has access to the authorities, but in the circumstances it might be easier that I just read this particular passage.  It's 51 from the Full Court judgment 253 FCR 368.  The submission was that there was no statutory text from which to derive the Full Bench's reference to contemporary circumstances, and the Full Court said this:

PN161      

For one thing, many, perhaps all, of the section 134(1)(a) to (h) matters themselves permit, indeed require, consideration of contemporary circumstances; the range of needs and impacts these matters identify necessarily include needs and impacts assessed by reference to contemporary circumstances.  This is not to say that contemporary circumstances exhaust the universe of considerations mandated.

PN162      

And at the conclusion of that paragraph:

PN163      

Thus it is also the case that the fair and relevant safety net criteria which dictate the quality of any modern award embrace the concept of fair and relevant having regard to contemporary circumstances, that conception being within the subject matter, scope and purpose of the Fair Work Act.

PN164      

The reason I make specific reference to that is the theme one derives from Mr Fewster's statement is very much that these variations are borne out of the current contemporary circumstances confronting many employers across the country, including Telstra, and the competing demands of protections for employees through modern safety net of terms and conditions with, I guess, the flexibilities necessary to avoid a one size fits all approach to the regulation of the modern employment relationship.  In our submission, the reference and need to consider - albeit not exhaustively - the contemporary circumstances supports the nature of the variations that we seek.

PN165      

The importance of the evidence of those changes to Telstra, including the contemporary focus on flexibility, is littered throughout Mr Fewster's witness statement and the one particular document that we emphasise in that respect is the 'all roles flex'.  The reference in Mr Fewster's statement - this is in the first statement - paragraphs 82 to 83 (audio malfunction) principle adopted by Telstra in 2014 of all roles flex, as the name suggests that all roles should be capable of having examination of the extent to which the flexibility can be increased.

PN166      

Mr Fewster annexes as DF31 a copy of Telstra's flexible work policy and that document is instructive.  I might just ask the Bench to turn it up every so quickly.

PN167      

DEPUTY PRESIDENT MASSON:  Have you got a page number?

PN168      

MR FOLLETT:  Yes, it commences in the paginated bundle at page 880, the annexure sheet, the document itself commencing at page 881.

PN169      

DEPUTY PRESIDENT MASSON:  Yes, I have it, thank you.

PN170      

MR FOLLETT:  Yes.

PN171      

You told us you value working flexibly and we want you to experience (indistinct) working when, where and how you work in a way that enables you to be safe and (indistinct) so what does that mean?  There is no one size fits all.  Everyone has different personal circumstances and preference.  To support this, we believe all roles are complex in some way to deliver a great experience and outcomes for us and our customers.  So how can we support you?  There are three simple steps to decide how flexibility works best for you.  Discuss with your leader and then do it.  Put a plan in place to make it work.

PN172      

Then there are a range of examples given under step 1 at page 882 in quotes and we certainly reinforce some of those self‑evident and obvious examples that might arise.  They're obviously not going to emanate or exemplify the universe of circumstances where flexibility might be required, but those examples do paint, in our respectful submission, a persuasive picture as to why these forms of flexibility are fair and relevant to any - - -

PN173      

DEPUTY PRESIDENT MASSON:  Mr Follett, I understand the submission to be essentially that while there is a span of hours and it provides some flexibility in terms of when people can work, there are limits by reason of the span of hours and that the variation would expand the options of when employees work quite significantly.

PN174      

MR FOLLETT:  Yes.

PN175      

DEPUTY PRESIDENT MASSON:  In simple terms.

PN176      

MR FOLLETT:  In simple terms.  I would paraphrase Mr Fewster's comment to you, Deputy President, but I may receive the same response.  One of the, I guess, linchpins of the need for leave variations is the difficulties which can arise or indeed may arise through the award flexibility provisions and individual flexibility arrangements, as is conceded I think by Mr Fewster in his statement and certainly in the statement(sic) most of the flexibility changes could be brought about through an individual flexibility arrangement under clause 9.

PN177      

The difficulty identified both by Mr Fewster and indeed in the submissions is the potential age‑old difficulty certainly in a better off overall sense of characterising and evaluating non‑monetary benefits, and the circumstances in which non‑monetary benefits can be said to be better off for an employee to monetary benefits.  That observation, trite as it is, is really a part of the concerns about implementing arrangements on the assumption that they are better off overall when circumstances down the road might change and question as to the legitimacy of those variations might arise, and all the difficulties that creates for a very large corporation such as Telstra with rectification, back pay, matters of what type.

PN178      

To emphasise that point there is some realistic doubt as to the extent to which those sorts of monetary and non‑monetary criteria can be assessed and evaluated under the existing clause 7, 'Award flexibility'.  The relevant clause is 7.4 which refers to:

PN179      

The agreement must result in the individual employee being better off overall, at the time that the agreement is made, than the employee would have been if no flexibility agreement had been agreed to.

PN180      

There is some doubt as to the application of that test and in particular we know, for example, that the 'no disadvantage test' prior to the Fair Work Act did not contemplate an evaluation of those sorts of practical non‑monetary benefits, including, for example, in a voluntary work‑type arrangement where an employee volunteered to work overtime but didn't attract an overtime penalty.

PN181      

DEPUTY PRESIDENT MASSON:  Yes.

PN182      

MR FOLLETT:  The Commission might be familiar with the line of authorities commencing with the MSA Security case which held that the nature of the 'no disadvantage test' required a comparison simply of terms and conditions in the instruments.  At that level if an agreement permitted an hour of work at a non‑overtime rate where the award required it, it was irrelevant that that overtime shift as a matter of practicality may not have ever become available to the employee because of the cost impost.

PN183      

We did provide to the Commission with the bundle a copy of that decision; it's the Australian Liquor, Hospitality and Miscellaneous Workers Union v Alton Pty Ltd.  I think from the electronic bundle if the Commission went right to the very end - - -

PN184      

DEPUTY PRESIDENT MASSON:  1087.

PN185      

MR FOLLETT:  1087, indeed.  The particular passages I wanted to refer the Commission to on this particular point commence really at paragraph 75, which the Commission will find at page 1112.  This was, effectively, a voluntary overtime type arrangement and the Commission will see, recorded in paragraph 76 of the appellant's submission, that's the union's submission, and then at paragraph 77, in the proceedings before Polites SDP, the respondent relied upon a distinction between hours which were worked in line with the employees preference to work and additional hours to earn extra income, versus hours which are worked at the request or instruction of the employer, and submitted that:

PN186      

The ability to work to earn extra income is something that is one of the beneficial parts of the agreement.

PN187      

The Senior Deputy President appears to have accepted the distinction, assuming that the provision which provides for consent might mean that an employer can be pressured.

PN188      

At paragraph 79 the majority, in that case, being Wadson SDP and Lewin C, said that:

PN189      

That form of distinction was irrelevant because the nature of the test was comparison of terms and conditions.

PN190      

At paragraph 80, in particular, there's a reference to:

PN191      

All works done outside ordinary hours prescribed attracts overtime.

PN192      

The Full Bench there is drawing a distinction between some awards, which the Commission might be familiar with, which talk about overtime work being required and, commencing at the end of the fourth line, the majority says:

PN193      

Had the award described the basis for payment of overtime rates differently, providing, for example, that the rates applied in circumstances where the employee was required to work hours in excess of those in clause 15, the situation may have been different.  However, it is not a situation which we need to consider further, given the terms of the award.

PN194      

The same observation applies here, with respect to the Telstra Award and clause 20.4, which refers to work being performed outside of certain spans, or in excess of certain hours, without the nomenclature of 'required'.  The Full Bench goes on to say, sorry, the majority goes on to say, at paragraph 81:

PN195      

The analysis of the Senior Deputy President included an assumption that by working an additional number of hours at a significantly lesser rate of pay than that prescribed by the award, employees would not be disadvantaged.  That assumption reflects the response contention that the opportunity to work more hours, in addition to the ordinary hours prescribed in the award would offset the disadvantage.

PN196      

The subject matter addressed by the respondent concerned the operational possibilities of the employers business to provide additional working hours, at rates of pay less than those prescribed by the award.

PN197      

So the upshot of that decision was that that sort of analysis, for a no disadvantage comparison was not available.

PN198      

That analysis was repeated as being correct, in the BUPA decision.  Again, a case dealing with a no disadvantage test, 196 IR page 1, at paragraphs 20 to 25.  I don't take the Commission to it.  And the Modern Awards Review case, at 2012, referred to in our submissions, 232 IR page 159, refers to and approves MSA Security, in the context of the BOOT, but does so in a way which is more referrable to the globalised nature of the assessment, rather than a line-by-line assessment.  But, of course, was a clause about award flexibility terms itself.

PN199      

So the extent to which that Full Bench endorsed as correct the MSA Security case might create a suggestion, in the context of award flexibility terms of this type, that the sorts of comparisons inherent in the flexibility case advanced by Telstra may not necessarily carry the day, even under clause 7.4, which is another reason, in our respectful submission, why the most appropriate course, and the safest course, in order to have a fair and effective and relevant safety net is to embed the changes otherwise capable of being obtained, theoretically, under clause 7.4, in the terms of the award itself, to ensure that there is no doubt and, evidently, the protections that are proposed are quite strong.

PN200      

There are only two additional matters I wish to address, arising out of some of the questioning of Mr Fewster.  The first related to the contrast between clauses 19.14 and 19.15, dealing with expanding the span of hours and multiple spread shifts, and meal breaks, and the necessity for the variation to meal breaks be simply by agreement.

PN201      

The first observation we would make about that is that given the very nature of that variation, and that it is intended to be ad hoc, we are looking at a period of, perhaps, half an hour on an individual day, or an individual shift basis.

PN202      

The necessity to document, record in writing and have such a request come from an employee in that sort of form is (a) unworkable and, (b) from an analysis of the potential for abuse, and detriment to an employee is a form of variation less likely to cause any substantial or significant implications.  Hence, a logical and rational justification for a differential, in the nature of the regulatory protections, are built around it.

PN203      

Secondly, and also relevant to that proposition, was the presiding member's questions about the potential for abuse.  We would simply observe that there are many modern awards, including many industry awards, that have a great many number of clauses which permit variations to rostering, shift patterns, working hours, et cetera, simply by agreement between either the employee and the employer, or the employee and a majority of - the majority of employees and an employer, without any of the necessary protections otherwise inherent here in clauses 19.14 and 19.15.

PN204      

So referrable here to the meal breaks provision, or the breaks provision.  That is, the absence of those sorts of protections are very consistent with the award safety net, as it exists in other industries.  And the Commission couldn't make any safe assumptions about the extent to which those sorts of clauses have potential for abuse, as between the very large employers and the very small employers.

PN205      

Other than those particular matters, we rely of course on the written submissions, and other than being available to answer any questions that might be advanced, they were the submissions that we advance in support of the application.

PN206      

DEPUTY PRESIDENT MASSON:  Thank you, Mr Follett.  Just one question in relation to – I'm getting a bit of feedback here.  If you could switch your mic onto mute, Mr Follett?  Thank you.  Just in relation to the timing of any operative date for any variation to the award based on the amended application contained within Mr Fewster's second statement, my understanding is that there is no need for the Bench to then be concerned about the likely date of shareholder approval or Federal Court consideration of the Amplitel issue, and therefore, as you say I think in your submissions, it would come into effect from the date of the determination, so there's no need for the Bench to be concerned about the timing of this.  Is that correct?

PN207      

MR FOLLETT:  That's correct, Deputy President.  If the changes are in place - Amplitel has already dealt with - - -

PN208      

DEPUTY PRESIDENT MASSON:  Yes, sorry.  I meant InfraCo, sorry.

PN209      

MR FOLLETT:  InfraCo and Telstra Limited; as and when those changes are made and employees move across, and indeed new employees might be employed, if the award with the variations is already in place, it will immediately cover everyone, and because the Telstra Corporation Limited to Telstra InfraCo is a change of name only rather than a change of corporate entity, the award will as a matter of law and legal effect cover Telstra InfraCo as and when it commences operation as a change of name, and employees – they're not even transferring.  They remain employed by the same corporation.  If and when an application under 15.92 correct an anomaly, so to speak, it may be made or may not need it.  It's obviously not necessary, but if such an application is made to tidy that up, then that can be done after the event.

PN210      

DEPUTY PRESIDENT MASSON:  Yes.  Thank you.  I don't have - - -

PN211      

MR FOLLETT:  There's a degree of automaticity to the operation of the arrangements if the variation's in place before the restructure.

PN212      

DEPUTY PRESIDENT MASSON:  Thank you.  I'll turn to my colleagues, if they have any additional questions for you, Mr Follett.  Deputy President?

PN213      

DEPUTY PRESIDENT MILLHOUSE:  No.  Thank you.  I have nothing further.  That was helpful.

PN214      

DEPUTY PRESIDENT MASSON:  Yes.  Commissioner?

PN215      

COMMISSIONER O'NEILL:  No further questions from me, thanks.

PN216      

DEPUTY PRESIDENT MASSON:  All right.  Thank you, Mr Follett.  I'll now afford an opportunity to the representatives from the employee organisations, and strictly according to the order that they appear on my sheet, so it bears no reflection of the importance of each of these organisations, I'll turn to Mr Perkins first.

PN217      

MR PERKINS:  Thank you, Deputy President.  I have no further questioning.

PN218      

DEPUTY PRESIDENT MASSON:  Thank you.  Mr Nash?

PN219      

MR NASH:  Thank you, Deputy President.  I don't have any oral submissions to make.  I would just note that the change to the coverage provision that is proposed by Telstra, we only received a notice of that after business hours yesterday and it's a change to the agreed terms that we've had with Telstra, so I haven't had a chance to properly review the effect of that change or seek instructions on to that, so I'd request permission from the Commission that we might be able to – I might be able to seek those instructions and we could file any written submissions around that issue if need be.

PN220      

DEPUTY PRESIDENT MASSON:  Yes, and of course if I were to do that, Mr Nash, then obviously the applicant would be afforded an opportunity to reply to that.  What time would you need?  Would seven days be adequate time, Mr Nash?

PN221      

MR NASH:  Yes, that would be fine.  Thank you, Deputy President.

PN222      

DEPUTY PRESIDENT MASSON:  Thank you.  Ms Buchanan?

PN223      

MS BUCHANAN:  Thank you, Deputy President.  We don't have any - - -

PN224      

DEPUTY PRESIDENT MASSON:  I can't really hear you, sorry.

PN225      

MS BUCHANAN:  Okay.  Is that better?

PN226      

DEPUTY PRESIDENT MASSON:  Not much, but let's persevere.

PN227      

MS BUCHANAN:  All right.  Deputy President, essentially we support the variations that Telstra have brought for consideration here.  However, as the CPSU highlighted, the proposed change to coverage is also something we would like an opportunity to seek our instructions on as well.

PN228      

DEPUTY PRESIDENT MASSON:  Thank you.  All right, returning to you, Mr Follett.  Given the – and I suspect you would say it is of no effect in reality, but given the late provision of the variation, from my part I think it would be appropriate to afford the unions an opportunity to seek instructions and provide any submissions they may wish to make on the amended variation.  Would you then seek an opportunity to reply to that?

PN229      

MR FOLLETT:  Well, yes, we certainly support the observation, particularly given the manner in which these variations have made their way to the Commission, for the unions to be given an opportunity to consider any amendment which departed from that which was previously discussed with them.

PN230      

DEPUTY PRESIDENT MASSON:  Yes.

PN231      

MR FOLLETT:  So we would support the opportunity for seven days for the unions, and we would seek – I think it's probably unlikely that it be necessary, but we would seek five days thereafter.  Seven days would take us to 17 March five days to the 22nd.  I think the necessity for reply submissions is probably unlikely to be necessary, but if the facility were made available.

PN232      

DEPUTY PRESIDENT MASSON:  No, that's – and if it emerges that there is a fundamental disagreement between the parties, then liberty is granted to apply for the matter to be called back on obviously.

PN233      

MR FOLLETT:  Yes.

PN234      

DEPUTY PRESIDENT MASSON:  Hopefully that won't be necessary.  On the basis that it is ultimately uncontroversial from the CPSU and APESMA, if that is the case then the Bench would then simply proceed to determine the application, subject of course if the Bench had any further questions they wanted to ventilate with the parties, but it will then reserve its decision at that point.  Are there any further comments before we adjourn, Mr Follett?

PN235      

MR FOLLETT:  Not from our part, Deputy President.

PN236      

DEPUTY PRESIDENT MASSON:  Mr Perkins?

PN237      

MR PERKINS:  No, Deputy President.

PN238      

DEPUTY PRESIDENT MASSON:  Mr Nash?

PN239      

MR NASH:  No, nothing further, Deputy President.

PN240      

DEPUTY PRESIDENT MASSON:  And Ms Buchanan?

PN241      

MS BUCHANAN:  Nothing further, thank you.

PN242      

DEPUTY PRESIDENT MASSON:  All right.  I'd like to thank particularly the applicant for the material that has been filed.  I'd like to say I've read all the thousand pages, but I must confess I haven't, but I have tried to digest the important parts of it, as have my colleagues, so we're grateful for the detailed material that supported the application.  We'll obviously consider that and the submissions advanced by the parties, and then subject to anything we receive back from the CPSU and APESMA, and if it requires a reply, we will then determine the application.

PN243      

The normal approach I think of Benches when dealing with award matters is having determined a matter, it would probably issue a draft determination and provide a short opportunity for parties to comment on that before finalising any determination it makes, and I see no reason why we would depart from that approach.  That's not to elongate the process unnecessarily; I think it's just an opportunity for us to ensure that whatever determination it will make has no errors or omissions in it before it comes into effect.

PN244      

With that said, the Full Bench is now adjourned, and subject to the receipt of any material – and sorry, I should add my associate will just send out a brief note to the parties setting out that timetable for the filing of any submissions on that final point - but subject to receipt of anything on that, the Bench will determine the matter and issue a draft determination in due course.  Thank you.  The matter is now adjourned.

ADJOURNED INDEFINITELY                                                          [11.40 AM]


LIST OF WITNESSES, EXHIBITS AND MFIs

 

DARREN BRIAN FEWSTER, AFFIRMED........................................................ PN33

EXAMINATION-IN-CHIEF BY MR FOLLETT................................................ PN33

EXHIBIT #A1 WITNESS STATEMENT OF DARREN FEWSTER DATED 07/02/2022      PN45

EXHIBIT #A2 SUPPLEMENTARY STATEMENT OF DARREN FEWSTER DATED 09/03/2022................................................................................................................................... PN50

CROSS-EXAMINATION BY MS BUCHANAN............................................... PN136

THE WITNESS WITHDREW............................................................................. PN143