PN1

THE COMMISSIONER: Good morning, parties. It's Commissioner Matheson. I'll start with the appearances. I understand I've got Mr Dwyer for the applicant?

PN2

MR DWYER: Yes, Commissioner.

PN3

THE COMMISSIONER: Thank you. And, Mr Tamvakologos, you're there for the respondent, and you're there together with Ms Giuliani, as I understand it.

PN4

MR TAMVAKOLOGOS: That's right.

PN5

THE COMMISSIONER: Well, look, thank you, parties. Today we'll be hearing the closing submissions of both parties in relation to this matter. We'll start with Mr Dwyer, and then I'll turn to Mr Tamvakologos before giving the parties an option to say anything they wish to say further before I adjourn and reserve my decision.

PN6

Before we get into that process, is there anything that either party wishes to raise before we commence?

PN7

MR TAMVAKOLOGOS: No.

PN8

MR DWYER: No.

PN9

THE COMMISSIONER: No, okay. And, thank you, I have received your materials, Mr Dwyer and Mr Tamvakologos. I haven't engaged with them in detail as yet, but I assume that you'll take me to them this morning, so, thank you.

PN10

Mr Dwyer, we'll start with you.

PN11

MR DWYER: Thank you, Commissioner. I did send you a document. I'm sorry I didn't have it done by yesterday.

PN12

THE COMMISSIONER: That's okay.

PN13

MR DWYER: The circumstances changed a bit on me and I was away for a long weekend, so anyway I think it will speed it up by having sent that to you. I don't intend to read it verbatim.

PN14

THE COMMISSIONER: Yes.

PN15

MR DWYER: But a lot of it's obvious, and they're summarising a lot of things that have been discussed in quite some detail anyway. It'd need to be at least recorded, because most of it is not recorded, not that we're trying to record what happened or anything else it's just a matter of putting the background in the submissions.

PN16

THE COMMISSIONER: Yes.

PN17

MR DWYER: And particularly updating them. So, I'll just go through - I'll have an index at page 1, paragraph 1. I've set out the question that we determined, and the key in question 1(a) and (b) is that have they been engaged as a shift worker. I use that word deliberately, 'shift worker'; and 2, agreed to become a shift worker. Paragraph 2 deals with the change of status in the cease to be a shift worker; and 3 deals with whether or not we should have a flexibility agreement.

PN18

Going on just to the background paragraph 2, I just record there that this began on 21 July 2021 when a national proposal was put out by Telstra. It was given to our national office, and relevant to us was a redundancy proposal and a change in shift arrangements. That, sort of, kicked it off. That's set out in the paragraph 3. I indicate where it is in the submission.

PN19

Paragraph 4, the redundancies are not disputed. They did occur. Now, paragraph 5, the shift changes, the cause of the dispute, particularly staff wishing to avoid the night shifts and especially penalty rates are being cut.

PN20

Number 6 - Commissioner, I haven't referred to a lot of these because it became evident in the end a lot of the facts are agreed facts through here. I don't think there's any dispute on a number of these. That's why I'm skipping through them a little bit.

PN21

Paragraph 6 we indicate this is the skilled technical staff working various shifts including 12 hour 15 minute shifts. There's about 50 staff work in this area, and less than half are involved in the dispute. The balance are non-shift workers, so about half are shift workers, the other half are not shift workers, and do not obviously have a dispute.

PN22

At paragraph 7 the work of the group is to maintain the most important changes in the telephone, telex, data exchanges in Sydney and the suburban regional areas including P1, which are priority one exchanges. These are the largest exchanges, the biggest ones that we have in Australia, and the maintenance involves clearing of faults, configuration of the equipment and (indistinct) instructions. It's mostly project work on the exchanges where there's changes being done very regularly and technical staff are covering this 24 hours a day, seven days a week.

PN23

If we go to the next heading, the overview, I just do want to remind you of the evidence of Telstra. Telstra put forward frontline managers, and apart from Mr Evans, they spoke about the year 2000 matters. The frontline managers had no involvement before or after this dispute arose in 2000. They were brought in at the very end when the matter went to hearing.

PN24

The mastermind of the changes was Mr Webster, and he was not called and was not exposed to cross-examination. It is clear that frontline managers were kept in the dark, were under strict instructions, and essentially had their statements prepared in accordance with the plans of the lawyers. I'm not addressing the issue of consultation here. What I'm doing is just to indicate the type of evidence that we got.

PN25

In paragraph 11, I say just look at the evidence. All the managers agreed that they had acted in accordance with the wishes of HR or lawyers in relation to the preparation of their statements.

PN26

And I then quote the evidence, just patches of evidence from Mr Gorgievski, Mr Standish, and Mr Bazina. Rather than me read that verbatim, Commissioner, would you just, like, you know, just peruse that, if you haven't already?

PN27

THE COMMISSIONER: Yes, thank you. I'm just at paragraph 13 now.

PN28

MR DWYER: Yes.

PN29

THE COMMISSIONER: Twelve and 13. Yes, thank you, I've read that, Mr Dwyer.

PN30

MR DWYER: And what I indicate there, the frontline managers were surprised by the announcement of the shift changes. And on paragraph 14 they were directed to, so they had no prior knowledge of what happened that day. They were told at the same time that the staff were effectively, only hours apart.

PN31

They were directed to hold step 1 meetings in accordance with the HR direction, even to the extent that the letters to staff were prepared by human resources. They had no key involvement until after the conciliation step at which point they were asked to give evidence. And I just note there the questions essentially involved interpretation of the 2019 agreement, and we'll be relying on the ordinary literal meaning of the agreement as we go through. Obviously the other element is the factual situation about whether there was an agreement to become shift workers, and we'll address that as we go through.

PN32

Paragraph 16 indicates the current agreement. We indicate there's three categories of shift work identified in the agreement. Scheduled work, shift work generally, and extended shifts.

PN33

The first category applies in call centres and not relevant here. The second category of shift work, and that's where we find the normal provisions you find in awards and agreements relating to shift. And the third category is a special one called extended shift arrangements which covers shifts over 10 hours in length and then the definition is in appendix D, which I've quoted there.

PN34

We say the scheme is revealed by clause 15.4 and it states there, and (a) is basically a definition is:

PN35

These provisions apply to employees who have been or are in future engaged as shift workers or who agree to become shift workers.

PN36

And you'll come to that of course. (b) is Telstra may engage with a shift worker, in an aiding clause. Clause (c) will get a lot of attention because it's a standalone clause. Telstra may ask employees who are not shift workers to undertake shift work, and I'll return to those words, 'shift workers' and 'shift work' later, in which case Telstra can call for volunteers. And an important clause there that employees who are not shift workers can't be required by Telstra to become a shift workers.

PN37

Temporary shift workers, this arose, although I think - I do address it here, although I don't know if it's really an issue now, about whether we were alleging that this was temporary shift work. We quote the clause there, clause 15.4(e). And it says sometimes Telstra may ask employees who are not shift workers to become shift workers on a temporary basis to fill vacancies.

PN38

And paragraph 23, we point out that the purpose of that clause is to fill a vacancy, and the circumstances we talk about there are where somebody is on annual leave or somebody is sick, those sort of areas where Telstra need someone and they temporarily do it.

PN39

Paragraph 24, they point out - they're asking them to become shift workers, not to undertake shift work as you saw in the previous clause. And just in the evidence of Mr Marshall, Mr Tannous pointed out that he received the temporary shift allowance for a short time. Obviously they were recognised as non-shift workers at the time they were filling a vacancy on the shift. And I give that reference to their evidence there which, if necessary, we could go to.

PN40

The shift roster with vacancies to be filled by these two P1 staff was the weekend portion of the roamers roster, and this is still the case that the P1 staff fill the weekend portion of the main roster. And we've covered that or the evidence of that was covered by Mr Bazina.

PN41

At paragraph 27 we talk now about what's a volunteer. We say, having read the agreement, there's no reason to look beyond the ordinary meaning of the word 'volunteer'. It means someone who has offered their services freely without any obligation to do so. There's nothing controversial about that. There's on qualification to the word in the agreement.

PN42

In our submission, it's ordinary meaning. The word cannot, without more, be construed as a permanent commitment, that is, the ordinary meaning of the word cannot, without more, be a matter to be construed to be a permanent commitment. Nor we say can it sustain engagement on a wrongful basis to change the quality of the engagement. And that point really is emphasised by the clause that the employee who is not a shift worker can't be required by Telstra to become a shift worker.

PN43

Basically we're saying there that just because you're on it a long time doesn't mean that you get trapped into it. You're a volunteer, you stay a volunteer and there's nothing in the enterprise agreement that would change that situation.

PN44

At paragraph 30 I just go through the history of the 12 hour shift agreement. I don't think any are controversial. It arises from the summary I put there of the history of it, and then finishing at clause 34, the first question that's been put to this Commission is generally speaking are the workers in South East Construction shift workers?

PN45

And we are dealing with it in three groups, as previously agreed; the roamers, the P1 construction, and Mr Markoski. We want to rule out three things: we're not talking about scheduled work; secondly, we're not asserting the work done here is temporary work, that provision applies in a (indistinct) season; thirdly, we're not arguing for a particular roster of penalties be recognised (indistinct) can set the times of shifts that need to be covered and the penalties that apply. And the penalties that apply are derived from the enterprise agreement, so they're not proposing any particular roster or anything like that, they recognise that.

PN46

At paragraph 40, it's just the terminology will become important in here, which I've already mentioned. You'll see references to permanent shift work. It's shift work which is, you know, have you been engaged as a shift worker? Extended shift work for 12 hours, which we'll cover there shortly. Particularly there's a difference between a shift worker and shift work is important. And, finally shift component is also a matter that arose during the proceedings.

PN47

So, those are different things, and I'll draw your attention to them as we move through it. And our position, just briefly put, is that shift workers, none of the witnesses that are shift workers here are engaged as shift workers or agreed to become shift workers, I use that term deliberately. And permanent shift workers, we say our position is none of them are permanent shift workers.

PN48

Excuse me, I may need to have a drink.

PN49

THE COMMISSIONER: Okay.

PN50

MR DWYER: Strangely, today I'm wondering whether I've got COVID.

PN51

THE COMMISSIONER: Well, if you need to, if you do need a break, Mr Dwyer, do let us know. I'm happy to allow you a break to take a drink if you need to.

PN52

MR DWYER: I'll do a RAT test a bit later today. It won't matter of course. Lucky we're not in the same room.

PN53

Paragraph 42 I'm saying we're submitting that they are employees who are not shift workers but have volunteered to undertake shift work. I just emphasise there they're not shift workers, but volunteered to undertake shift work. And that's in accordance with clause 15.4(c) which I've gone to.

PN54

The word 'engage' in the context means that some positive action is needed to satisfy that statement. This is particularly important given that Telstra cannot force staff to become a shift worker. The most obvious engagement is this written employment contract, and none exist that's been put forward to you, none exist where you see this clear engagement as a shift worker, and the contracts we'll come to don't even mention the word 'shift'.

PN55

South East Construction, just briefly, is Telstra, the group, it has two sub-groups. They need 24-7 coverage every week called exchange maintenance. The work is arranged in two by 12 hour 15 minute shifts, 12.25 shifts each day, one called a day shift and the other called a night shift.

PN56

That work is allocated over two sub-groups: the maintenance group known as the roamers, they're called roamers as they can be required to attend all exchanges in the metropolitan area, and they undertake any maintenance duties generally; and, secondly, P1 construction, which is a group which undertake project work, but cover the maintenance duties on the weekends, Saturday and Sunday, and the coverage is, generally speaking, Monday to Friday is covered by roamers, Saturday and Sunday is covered by P1 construction.

PN57

I turn specifically now to the P1 construction group, and the evidence, just repeating they undertake construction activity and limited maintenance on the weekends. Forty-nine, proposal was that the P1 construction staff would be assigned to do Monday to Friday night shifts. This is what triggered the dispute for P1 construction. Apparently they only do a night shift on weekends when they do do a weekend shift.

PN58

The evidence revealed that the work of P1 construction typically work one 12 hour 15 minute shift during the week, and a weekend day shift or a weekend night shift of 12 hours 15 minutes every four to five weeks. The rest of the hours of the week were very flexible and staff had arranged their own hours.

PN59

So, in summary, the situation is that we say just there in P1 construction, it's Monday to Fridays day work only. They cover Saturday and Sunday day and night shifts. They work mostly an eight or nine day fortnight. Day shift lengths vary from about four hours to 12 hours 15 minutes, weekend day shifts are 12 hour 15 minutes, and night shifts are the same. They do not work a fixed roster. There are two team leaders, Mr Davis and Mr Bazina. And we note, Sunday night shifts span Sunday night and Monday morning. I'm not going to dwell on those sort of minor changes, but just note that they exist.

PN60

Paragraph 52 it lists the name of the people who work there, and indicate which ones gave evidence. Paragraph 53, before about 2020 this group covered weekend maintenance work on overtime, that is, they were day workers and as day workers work outside their span of hours they're paid overtime, and that's what the situation was before 2020.

PN61

In about that 2020 Telstra decided to end weekend overtime for maintenance and replace it with shifts. P1 construction group were asked to undertake the weekend shifts. This meant the staff were asked to do one weekend every four to five weeks. The balance of the week was organised mostly by the staff themselves.

PN62

Paragraph 57, I say that no proper roster exists. What I indicate there is mostly a shift roster is one where you see various shifts each day and they rotate over a pattern normally which rotates every, either one week, two weeks, four weeks, sometimes up to 12 weeks before they complete a complete round, and then you come back and then you start the pattern again. But we don't have that for people in construction. The roster is basically to allocate weekend work and fill the vacancies on the roamers roster.

PN63

Telstra did use a temporary shift allowance for a short time, and there I refer to the evidence of Mr Bazina, and jut briefly I say the question asked:

PN64

Now, staff work about 11 to 12 shifts a year and weekends. That constitutes shift work in your view?

PN65

And his opinion was, 'From where I sit, yes'. 'Some of them at least were told' - no, looking at a different point:

PN66

Some of them at least were told because a new role had a shift component?‑‑‑Yes.

PN67

You didn't know specifically what the shifts would be at the time they were replying?‑‑‑I didn't know.

PN68

Yes. So, the extract covers two bits there; firstly, the fact that they only worked 11 to 12 shifts a year, and that could be a day shift or a night shift, those 11 or 12 shifts. The second part was when they were being told of the role they were told it had a shift component, and, secondly, that at the time of doing it they didn't know exactly what the shift component would be, that is, the managers didn't know exactly what the shift component would be.

PN69

Paragraph 58, it's effectively a repeat of what I said before, that two staff did work temporary shift allowances at the start before they moved them to a shift component.

PN70

At 59, we contend that it's not shift work as no traditional roster exists. There's no pattern and even the weekend work has no pattern to it at all.

PN71

We say that members of the group, in paragraph 60, volunteered to do the shift component. Most of these staff typically undertook - I'm just going to more background now - that most of the staff undertook a tier traineeship with Telstra that were nominally employed with a trainee organisation, at least, they were not Telstra employees at the beginning, but did all their training at Telstra.

PN72

At the end of the two years most were offered employment contracts with Telstra itself, and of course two members are Brendan Marshall and Mr Tannous, and give the references there. They were offered the work.

PN73

Paragraph 62, notwithstanding their starting date all the staff either had their employment contracts offered or renewed in 2019, 2020 or 2021. An example of that can be seen in the statement of Corey Clancy which is there, and it's a statement of several pages. Sorry, a contract of several pages outlining the terms and conditions of employment, so, sometimes there was a separate two or three page one which set out salaries and classifications also supplementing the contact.

PN74

They were template employment contracts. They're basically all the same. Revealed that no one was engaged as a shift worker. None had agreed to become a shift worker in the contracts, and in the contracts there was no mention of shift work or a shift component.

PN75

At 64, while the shift component was discussed at that time most contracts included the common entire contract clause. The clause states, and I have set out what the clause states, and it has the usual sort of exclusions involved in it.

PN76

So, in paragraph 65, so thus prima facie it does not matter what was discussed, it cannot form part of the employment contract. There's nothing in the evidence to disturb the effect of that clause, that is, there was no, sort of, supplementary contract or agreement, particularly an agreement between the parties that would affect or disturb the entire agreement clause.

PN77

As well, at paragraph 66, whilst there was discussion of a shift component, it's quite significant that no agreement was reached. It couldn't have been reached because (indistinct) it's covered in paragraph 57 above. They didn't know exactly what the shift component would be.

PN78

There were several relevant documents. And apart from one the documents do not mention shift work. And when you look at the extent of the documents, I set them out in the next paragraph 68, all it is is indicia of what the employment contract, the job posting, I talk about at paragraph 68(a) job posting, it's a form of advertisement. There's no mention of shift.

PN79

I give reference as to evidence on this at paragraph (b) success profile. It's, sort of, a job description available to staff. There's no mention of shift in those documents; (c) Successful applicants were issued with a new contract of employment, there is no mention of shifts or shift component in these contracts; (d) the contracts issued to staff contain the entire agreement clause.

PN80

Paragraph (e) P1 staff were non-shift workers before the weekend shift component commenced. Paragraph (f) that prior to - they were previously paid overtime for the weekend work before the shift component work commenced; (g) P1 staff worked a maximum of 11 weekend shifts per year; paragraph (h) some staff were told the new role had a shift component; paragraph (i) the employee managers were unable to advise precisely what a shift component would be; paragraph (j) no P1 staff member was told it was a permanent shift. I might add there, or that they would be permanent shift workers.

PN81

Paragraph (k) the promotions which occurred for some people about that time recognised the skill and responsibility associated with the role. There was no change in the work when this happened. Paragraph (l) there was reluctance by staff to work shift work. Paragraph (m) a paper style FAQ stated that success profiles would be updated if shift work were to be introduced.

PN82

The success profile was not updated. It was never updated despite the fact that it said it would be. The paper style FAQ said that a letter would, amongst other things, set out the requirements to become a shift worker. No letter was ever issued.

PN83

Paragraph (o) no flexibility agreements were proposed or created. And (p) only volunteers commenced working a shift component, that is, no one was forced in that position.

PN84

So, in paragraph 69, P1 staff went from day work to a form of extended shifts. It appears that it was artificially arranged to avoid the rights to overtime. And I just quote Mr Bazina there:

PN85

There were contracts. I think you agreed there's no mention of shift work or a component of shift work or people who went on extended shifts were non-shift workers before the weekend work commenced?‑‑‑Yes, the staff.

PN86

And they were paid overtime for weekend work at that time?‑‑‑Yes. Yes. Yes.

PN87

I'll just move on to the heading, The Arguments, and the P1 Construction, and I probably do get a bit repetitive, but it does put things into the context. I quote clause 15.4(a) has three component:

PN88

Have they been engaged as shift workers or are in future engaged as shift workers, or who agree to become shift workers.

PN89

They're the three ways you can become a shift worker.

PN90

Firstly, we say they were never engaged as shift workers. There's no evidence indicating that the absence of specific engagement of shift workers clause in their employment contract. They cannot be said to be engaged as shift workers. There's no contract clause either at engagement or subsequently.

PN91

Secondly, no witness testified that they agreed to become a shift worker or a permanent shift worker. And, thirdly, in P1 construction there are contemporary employment contracts and the omission of any reference to shift work is therefore significant.

PN92

The fact situation is consistent with 15.4(c) of the agreement, and that is Telstra may ask employees who are not shift workers to undertake to do shift work, in which case they will call volunteers. We say that is the fact situation in P1. If they were non-shift workers Telstra asked them to undertake shift work, I underline that word, shift work, in which case Telstra will call for volunteers, which they did. And assuming that a shift component, as described by the team leader, is shift work, the (indistinct) some comments:

PN93

It is common ground they were not shift workers before the introduction of a shift component. Telstra will call for volunteers. In 2020 P1 staff started doing volunteer shift work. Nothing has changed that situation, they remain as non-shift workers who undertake voluntary shift work.

PN94

There's no evidence in the statement to the members involved, whether longstanding or new employees, that they were engaged as a shift worker. I refer to clause 15.4(c) just to make a comparison between this clause and another clause, 15.4(c):

PN95

Telstra may ask employees who are not shift workers to undertake shift work.

PN96

And if you look at clause 15.4(e) by comparison:

PN97

Telstra may ask employees, who are not shift workers, to become shift workers on a temporary basis.

PN98

We say in terms of construction that's significant. It's obviously a basic rule of interpretation that different words and phrases are used and the presumption is that it is deliberate and different meanings are to be attributed to them.

PN99

Perhaps 82 is a little repetitive in that it's clear and unambiguous that they were non-shift workers, volunteered to remain as non-shift workers, and who are undertaking shift work. Further, the vast majority of the work in the P1 construction is day work without a shift penalty. The weekend work is not a major part of their work. As you can see they're working only 11 or 12 shifts a year. The weekend shift work is minute compared to their normal work as day workers.

PN100

We can review the templates that were attached to the witness statements which set out the pattern over the last three months. These were prepared just to give an indication of the type of work that they were doing and the amount of work they're doing as a shift worker versus what they were doing on day work.

PN101

So, in summary, we're saying the union submits that the scheme is clear and unambiguous:

PN102

A non-shift worker cannot be required to become a shift worker; a shift worker is one who has been engaged to or who agreed to become a shift worker; and (c) non-shift workers can volunteer to undertake shift work.

PN103

Shift work underlined there, differentiated from the word 'shift worker'.

PN104

Eight-six, goes further and says the scheme makes it clear that non-shift workers commonly known as day workers can undertake shift work without becoming a shift worker. By undertaking shift work it doesn't make you a shift worker.

PN105

The evidence of a number of witnesses, for example, Anderson, who said some staff have withdrawn from undertaking shift work in the past. This supports the view that their status was that of a volunteer.

PN106

Finally, shift work is only part of the work of the roamer group. All managers have workers who are not undertaking shift work, and no explanation is provided about the difference between the staff members. Mr Standish below advised that he has 11 day workers and shift workers in his group. I've summarised it, I won't read his evidence. Commissioner, if you wish to browse that, and, similarly, there's Mr Bazina in the P1 group, has 10 to 11 day workers and six shift workers working in his group.

PN107

I just pause for a moment so you can review those extracts.

PN108

THE COMMISSIONER: Yes, thank you, Mr Dwyer, I've read the exchange.

PN109

MR DWYER: And I say given that it means that any Telstra submissions that all staff were engaged as shift workers cannot be sustained. To have groups of workers where some are shift worker and some are not there seemed to be no differential between the two of any substance. We need more to indicate that one lot are shift workers and can be engaged at any time as shift workers when the others can't be or cannot be.

PN110

So, overall we submit that the P1 staff they were not engaged at any time as shift workers. They were called (indistinct) or agreed. I should add there or agreed to become shift workers. There's no evidence of that at all.

PN111

I do mention extended shifts because they are working at least one extended shift every five or six weeks. I quote there clause 15.4(g) which says that Telstra implement the 12 hour shift in accordance with the agreed guidelines which are now in appendix D. And number 2, for the avoidance of doubt, where you regularly perform shifts of up to 10 hours or less then Telstra may ask but not require you to perform extended shift.

PN112

We'll come to that. So, what we know, firstly, the arrangement was voluntary; secondly, it says extended shift can only be introduced where staff regularly perform shifts of up to 10 hours. This was not the case in P1, the precondition did not exist, that is, they weren't doing shift work of less than 10 hours at a time, they were day workers at the time. It's common ground that there was no shift work in there before the introduction of a shift component, staff working an extended shift but unlike the roamers who are working a hybrid voluntary arrangement. When I say hybrid is that they're basically day workers who do a shift every four or five weeks on the weekends at least.

PN113

We would say working just 11 extended weekend shifts a year does not make a shift worker in the common law sense. And we say there's no evidence that the workers are no more than day workers doing shift work as volunteers under clause 15.4(c). They meet that factual situation.

PN114

That ends my part on P1 construction. I want to now turn to roamers, and just leave aside Mr Markoski. And I note paragraph 98 which lists the names of those who gave evidence. We had more evidence from this group until the point where we decided to reduce the number of witnesses, and dealt with it more on a general basis rather than as an individual basis.

PN115

At paragraph, the summary of the position of roamers is this, at (a) they commenced 12 hour shifts about 2000 - 2001. Prior to that they were non-shift workers, work at night time was on overtime. They were rostered as negotiated about the year 2000 covering all shifts. Key features of the roster were 12 hour 15 minute shifts or 12.25 decimal hour shifts and five weeks of night shifts and five weeks of day shifts. They work a six day fortnight. Their 12 hour shift agreement in 1990 was in force at the time. And Telstra asked staff to volunteer for these shifts. So we can also add to that there's been no change to those key features since inception.

PN116

In July 2021 a proposal was to reduce day work shifts to 12 hours to eliminate the 15 per cent penalty, and staff would not be required to work the other 45 minutes per week. The old shift of 12 hours minute per week, you multiply that by three gave you their normal weekly hours of 36 and three-quarter hours. Once they reduced to 12 hour shifts there was 45 minutes not worked and Telstra's proposal at the time was to just waive those 45 minutes.

PN117

The July 21 proposal was to end the five weeks of night shift, to reduce shift penalties for night shifts from 30 per cent to 15 per cent. To qualify for the 30 per cent penalty one has to work five weeks of night shifts or more than four weeks of night shifts as the provision in the EBA, so, reduced from five weeks to a shorter number of weeks than the 15 per cent. So, a 30 per cent penalty falls back to 15 per cent.

PN118

But the overall effect of the two proposals as I say indeed was to reduce (indistinct) by approximately 15 per cent and no written flexibility agreements were proposed or created at the time, it would appear.

PN119

So, we note that all of them were employed before 1995. All others were approached, leaving aside Mr Markoski, all of them were approached about the year 2000 to work the 12 hour 15 minute shifts. At that time those shifts existed and overtime was used to work outside normal hours. This often triggered 10 hour rest relief after overtime, and Telstra was looking to save costs. And just to explain that further, if people were asked to come in, they were asked to work tonight, up to midnight tonight, for example, the enterprise agreement provides that they need a 10 hour break without loss of pay before they can resume work, so they wouldn't start work till 10 o'clock tomorrow, if that was the case, so, that rest relief kicked in in those circumstances, or did kick in before the shift work was commenced.

PN120

The staff are volunteers, and part of the union's evidence there which basically indicated that staff had concerns that it was a voluntary situation, and that certain discussions were had over some time, and eventually most staff accepted the rostering of the six shifts of 12 hours 15 minutes over a fortnight. That achieves the working hours of 73 hours 30 minutes or 36 and three-quarter hours each week.

PN121

I just pause, if you wish to review that transcript, Commissioner.

PN122

THE COMMISSIONER: Yes, thank you, Mr Dwyer, I've read it.

PN123

MR DWYER: Thank you. So the agreement was purportedly made in the 1990 agreement which was in force at the time. No written agreement was recorded. The arrangement has continued for 20 years on that informal basis.

PN124

Paragraph 106, none of the members agreed to become a shift worker. They certainly agreed to undertake shift work. They saw themselves as volunteers with the right to withdraw at any time. And I refer to a couple of witness' statements there which support that submission.

PN125

Paragraph 107, none of the staff have withdrawn from shift work contrary to suggestions that it was permanent, and some of these I've given a reference to. It was Mr Messina who listed some people had withdrawn from shift work. The managers have agreed, and I haven't gone through all of those but certainly a number of people have withdrawn for various reasons.

PN126

Just now going to the arguments, my heading called, The Arguments for Roamers, at paragraph 108 I'm at. This is a little repetitious but it is slightly different to the P1 staff. So, 108 talks about the three components. One hundred and nine said the roamer staff were never engaged as shift workers, they were all day workers working for a number of years before shift work was introduced into the area.

PN127

So, there's no evidence of engagement, and in the absence of the specific engagement as shift workers they cannot be said to have been engaged as shift workers. There's no written agreement either about the introduction since in this area unlike the P1 area. Secondly, no evidence to testify that they agreed to become a shift worker or a permanent shift worker. I refer to the evidence of Mr Messina.

PN128

The fact situation I referred to previously, clause 15.4(c), and the fact situation is the same as in the current agreement, and that is 112 in about 2000 the roamer staff started doing voluntary shift work, nothing has changed from that situation. And we say they remain as non-shift workers undertaking voluntary shift work. There's no evidence in the statements of members, or no mention of course that they were engaged as a shift worker.

PN129

Then 114, 115 and 116 I repeat what I've said before about the significance of the wording, differences between 15.4(c) and 15.4(e). One hundred and seventeen, again, it's repetitive, there's no evidence from the staff, new and existing, that they are non-shift workers who volunteered to undertake shift work, and therefore remain as non-shift workers.

PN130

And paragraph 118 there's the repeat again, of course, of what I've said previously about the P1 construction staff. Again, repetitive 119, the scheme makes it clear that non-shift workers commonly known as day workers can undertake shift work without becoming a shift worker. We say that applies to us here.

PN131

I referred to the fact that some staff have withdrawn from shift work in the past for various reasons. These were set out by various witnesses and it's not contested, the managers indicated people's unwillingness to undertake training to performance, and there are a number of reasons why people have exited performing shift work.

PN132

It's basically refuting a suggestion that once you became a shift worker it was permanent. That had come through at various points that permanent shift workers - well, I'm not too sure in the end where it really ended, but certainly an issue - I think in the witness statements of some of the managers talking about permanent shift work and, Mr Bazina particularly there did compare them to - he referred to it as permanent shift work on quite a number of occasions.

PN133

Paragraph 121, 122 I just repeat, and through to 123, the evidence that I just went through before that the majority of people in the work area are day workers, and only some of them in the same work area are doing shift work, so, in the P1 group, who are doing projects, some are working shifts and some are not. In the roamers area when they do maintenance they're all maintenance workers and some of them are doing shift work. And, again, we say the answer to question 1 is that they were not engaged at any time as shift workers, and I'll say that again, or agreed to become shift workers.

PN134

I do cover extended shifts here again. But certainly the roamers are working extended shifts on a rotating roster introduced under the 1990 agreement. Clause 1 said that agreement must be reached between the various parties. Although this is an important precondition, no written agreement can be produced by the parties as to what happened at the time.

PN135

Paragraph 129, I just quote the clause again. One hundred and thirty indicates it's voluntary. Clause 131 talks about the 2019 agreement which has the requirement that agreement must be reached in order to have three consecutive nights as it is now. Whilst there is an agreement, it's important to note and should form part of a normal flexibility agreement we say. I quote the clause there, more than two night shifts in a row it has to be mutually agreed to work three night shifts in a row. And, finally, there's no evidence that they've given up their voluntary status.

PN136

Just to briefly deal with Mr Markoski, he differs from the other two as he came into South East Constructions through a (indistinct) in 2019. He joined Telstra in 1995 in an area where there was no shift work, and he was obviously a non-shift worker. In taking the job he was told that he would work shift work but that he would not be on shift for long.

PN137

There is some jumbled evidence about exactly what was said or what was understood at the time, but notwithstanding that Mr Markoski did seek clarification, and that can be seen in his witness statement, but the written letters at that time do not mention shift, and more importantly the confirmation letter that he received from Telstra advised that his terms and conditions would not change. Very specifically said that and that can be seen in the attachment to his written statement, that letter from Telstra. So, he had a letter from Telstra saying his terms and conditions would not change. He was previously a non-shift worker, so he hasn't been engaged as a shift worker, his status was confirmed at the job site he's a non-shift worker who undertakes voluntary shift work, as we stated as with the others.

PN138

I'll just finally deal with a couple of matters. Is the engagement permanent? If the Commission should find there has been an engagement, does that mean it is permanent? And at paragraph 138 I say we put aside the situation where a worker has clearly and unambiguously been engaged as a shift worker through an employment contract. There are people in other areas of Telstra where this happens. So, we're not dealing with that situation here and there's no need to address that situation. If somebody has an employment contract which says, you know, you're being employed as a shift worker, dah, dah, dah, that's what happening. So, a triple emergency area, triple 0 where all the workers, and particularly (indistinct) is something where all the work is shift work.

PN139

So, we're putting that aside, so we're dealing with employees who were able to volunteer to undertake shift work. They were day workers who were asked to do shift work. There's no evidence that they were asked to become shift workers. Nowhere was there evidence that they were asked to become shift workers.

PN140

In that situation we can't overlook of course that Telstra can't require someone to become a shift worker. That clause is not followed with a right by Telstra that Telstra can require someone to remain a shift worker once they volunteer to undertake shift work. I say that again, there's nothing there which says that once a person volunteers to undertake shift work, there's no right of Telstra in the EBA or in the enterprise agreement that says that Telstra can require them to remain on shift work. We submit that the ordinary meaning gives the employees an unfettered right to exit shift work.

PN141

Next, if the flexibility clause is also available to staff allowing a number of situations that would allow a shift worker to resume normal work hours. I mentioned these earlier where particularly managers had given evidence of people who have exited shift work for reasons of health, training, family situations, those sort of things which the flexibility clauses do.

PN142

So, that clause also put a dent in an argument that it's permanent. We argue below that a group flexibility agreement in force can be terminated with two weeks' notice so should one be in force as well. And, so, we submit the answer to question 2 is that a staff member has undertaken shift work has a right to exit shift work unilaterally. The argument above being that there's no provision to remove the voluntary status of people who have undertaken shift work.

PN143

And, finally, flexibility agreements, we submit that where extended shifts are introduced a group flexibility agreement is needed. Paragraph 145, the 12 hour shift arrangement necessarily involves a group of staff as the shifts must fill a pattern, that is, we can't introduce a 12 hour shift arrangement for one person in a work group. That's not what a shift arrangement would be. Shift arrangements are a group of people working together and you either all do it or you don't. And this is particularly so in the roamer area where there is a classic - I'll call it classic shift arrangements where it's covering 24-7 or 24 hours for five days a week at least, and a patterned roster is produced and created and filled with various people.

PN144

So, you need agreement. The working of extended shifts is voluntary and I quote the clause doing that. The history we've outlined above. When it was purportedly in the 1990 agreement some matters were overlooked. The voluntary agreement obviously needs some formality, not only to record the fact but also to ensure that an employer has complied with the enterprise agreement.

PN145

So, we say you need some formality. We need some records at least that they have complied with them, consulted the union, and so forth.

PN146

Clause 22 points to a need for a written flexibility agreement where extended shifts are in place. And I do quote clause 22 there from the enterprise agreement. I didn't quote it in full. I did omit clause 22.7 in my written statement there, but clause 22.7 says - I won't para-phrase it, I'll just go to it. It says:

PN147

Any group flexibility agreement in place immediately before this agreement started to operate will continue as if they were made under this agreement.

PN148

We have had a group flexibility agreement, I mentioned back earlier in 2000, either written or unwritten, and then there's grandfathering effectively of that clause. Grandfathering of that agreement could take place on (indistinct). I don't know if a lot turns on that but it sort of recognises this move from year to year, even though there have been some slight changes in the arrangements and when the agreement itself was replaced with the enterprise agreement, the (indistinct) agreement in 1990 was replaced with the enterprise agreement.

PN149

So, subclauses 22.3 and 22.6 anticipate the existence of a group flexibility arrangement when the extended shifts were created. Clause 22.3 refers to the limits that apply to flexibility agreements. This specifically allows the flexibility agreement to exceed those limits if the limits are in line with the extended shift guidelines. Perhaps I'll come back to it in a minute.

PN150

Clause 22.6 provides that the group flexibility arrangement can override certain provisions of the 2019 agreement but cannot override the provisions of extended shift agreements.

PN151

What we have basically the scheme with the flexibility arrangements are we have the base conditions of service of all staff, and the flexibility is provided by mutual agreement between employees and the employer. So at the first level you can exceed those, but there are limitations as to how far you can exceed them. So, the general group flexibility arrangement allows you to move from the fixed arrangements by mutual agreement and limits are imposed to make sure that you don't go too far. And it's also restricted to certain provisions in the enterprise agreement.

PN152

But to do that you must have a written group flexibility agreement. You must have a written agreement. The extended shifts arrangement is just one step higher than that, and the group flexibility clause again is attracted by the ability to even go further than what the - what I'll call the general flexibility would do. A group flexibility agreement or extended shift agreement allows you to go further than what you could otherwise do.

PN153

So, we say these references at 153, the references to the flexibility clause are not to exclude flexibility agreement when the extended shifts are introduced, rather they simply clarify what should be in the flexibility agreement as there's a significant alteration to the standard agreement provisions and are voluntary. As it is an important matter, it must be part of the flexibility agreement.

PN154

I repeat what I've said earlier there, clause D2.1 in the agreement has a requirement regarding the three consecutive night shifts. Again, there must be mutual agreement. While there is an agreement, in this case, it is important that it also should be part of a formal flexibility arrangement.

PN155

We submit that with these pointers in the group flexibility clause the answer to question 3 is affirmative, that is, you do require a group flexibility agreement where you introduce extended shifts.

PN156

That, Commissioner, is the end of my submissions.

PN157

THE COMMISSIONER: Thank you, Mr Dwyer. I'll turn to Mr Tamvakologos now. Thank you.

PN158

MR TAMVAKOLOGOS: Commissioner, thank you. Let me start with some introductory matters. If you have the three questions that you are to determine before you ‑ ‑ ‑

PN159

THE COMMISSIONER: I do.

PN160

MR TAMVAKOLOGOS: ‑ ‑ ‑we say this, Commissioner, about them, it is only question 1 which requires you to make any findings of fact. So, question 1 involves some narrow questions of construction. You're required to interpret clause 15.4(a) of the Telstra enterprise agreement and the terms engaged or agreed. And it may be that you also need to make findings of fact, depending on what you make of one of our arguments in a moment, to make a determination about whether the roamers and the P1, including Elvis, have been so engaged or agreed to become shift workers.

PN161

Questions 2 and 3 are purely construction questions, and I refer in particular to question 2, which provides that you are to determine whether the absence of the word 'permanent' in the agreement means that an employee who is engaged as a shift worker, or who has agreed to become a shift worker, whichever, has a right to unilaterally change their status to cease to be a shift worker. And you'll recall that we had a long first day in order to arrive at these questions.

PN162

Mr Dwyer has just said to you, and also says at paragraph 138 of the written document provided this morning about this question 2, answer the question but put aside a situation where a worker has clearly and unambiguously been engaged as a shift worker through an employment contract. We're not dealing with that situation.

PN163

When we go back to the question plainly, in our submission, Commissioner, it is a question of construction of the enterprise agreement, and when the applicant says put aside the situation where someone has been engaged as a shift worker to a contract, well, that's the premise of the question. The question is whether the absence of the reference to the word 'permanent' in 15.4(a) means that when someone has been engaged as a shift worker nevertheless they can unilaterally change their status.

PN164

So, our submission is paragraph 138 of the document that was handed up this morning you should pay no regard to. Question 2 is purely a question of construction of the enterprise agreement, and the applicant is creating a significant amount of confusion, and I think leading you into error by trying to inject facts into what plainly is a pure question of construction.

PN165

In relation to the questions of construction that are involved in each of the three questions, the legal standard is correctness and I would refer to the CSBP decision. I'm not going to take you to it because it will take too much time for me to take you to all of these references, but we've provided a pinpoint reference to pages 78 and 79. The ratio of the decision there in plain terms is that in the context of a dispute resolution procedure arbitration the standard to be applied on a question of construction of an enterprise agreement is correctness. In other words, there is a right and a wrong answer to these questions. They're not issues of discretion.

PN166

The next thing I'll say, Commissioner, because it's important to circle back to, is prior to the hearing commencing we sent your associate some objections to the admission of certain parts of the union's evidence. Just so that document is not forgotten we're referring to it, and we will ask the Commissioner if you think that the outcome of this case depends on you making findings of fact, that you pay careful regard to those objections because in a very large part what the applicant has sought to do here, and did so just now in oral submissions also, is say things like, 'such and such didn't think they were engaged as a shift worker'. And the written evidence is replete with statements of subjective understanding.

PN167

Contract principles are very clear about all of this. It's an objective test whether there's a contract and the scope of it. And it's much the same, and we've given you the reference to Berri in our case list, paragraph 114, and you'll see that principle 11 in Berri is that when interpreting an enterprise agreement the Commission is to have regard to objective matters, not subjective matters.

PN168

So, unfortunately you've been burdened with a lot of material that really should never have gone in, and in the absence of - and there's certainly no issue about this from our perspective, but in the absence of having made rulings during the hearing and all of that material being red-lined, we just say that you need to be careful when determining the matter that you don't pay regard to anything that you shouldn't.

PN169

The next thing we'll say, Commissioner, is quite a broad submission. It's a global submission about the quality of the evidence that has been put forward by the applicant in this matter. This has been quite a unique case, in our submission, in that the applicant put forward quite a large number of witnesses. It was whittled down but it was still a large number of witnesses, really none of whom gave a full account of the circumstances of their engagement.

PN170

I'll make very specific submissions about this, but a trier of fact in your position needs to be very cautious about accepting evidence in circumstances where, for example, a witness puts forward evidence where there are key meetings not referred to, key documents not referred to, et cetera. Of course we did our best to flush out those matters in cross-examination, but it ought to be remembered that the onus of proving facts to the extent necessary here is not on us, it's squarely on the applicant. And the material that they put forward to discharge that onus was not impressive, in our submission.

PN171

A couple of other introductory matters that have emerged from the document that was provided today, two things: firstly, at paragraph 9 the applicant says in reference to Telstra's evidence that the mastermind of the changes was Mr Webster, who was not exposed to cross-examination.

PN172

We, of course, admire the use of the word 'mastermind'. It brings forward all sorts of connotations, but to take the point as seriously as we can, we make the obvious point, why would he be called as a witness in circumstances where the nature of the changes proposed on 21 July, you'll recall the pack is appended to the union's submissions, and it's tab 49 of the court book, the proposed changes are not in dispute. There was no issue before you about what was proposed, and critically there is no dispute before you about the consultation process or the final decision.

PN173

So, all of that process is not in dispute before you, and those are the matters that, if he was called to give evidence about, Mr Webster would have given evidence about. So, his evidence was irrelevant, and there was no need to call him, and there's no point that can be taken against us for not doing so. With respect, it's a nothing point, Commissioner.

PN174

The next point is paragraph 10 of today's document where the applicant says again somewhat suggestively that the frontline managers were kept in the dark, they were under strict instructions. I'm not sure what instruction that's referring to. And essentially had their statements prepared in accordance with the plans of lawyers. Now, again, what you have there is not of assistance to you, because there's lots of suggestion in the submissions that have been made to you, but there's no punch line.

PN175

Of course, it's very common in litigation for lawyers to assist their clients on instruction to prepare statements. It can't possibly be suggested that there's anything improper about that. So, we don't know where this suggestion goes. If the suggestion is that any of the witnesses called for Telstra didn't give their evidence truthfully, in other words, it wasn't their evidence, it was the lawyer's evidence or somebody else's evidence, that submission should be disregarded out of hand. There is nothing that occurred during the hearing, nothing that was said during the evidence of Telstra's witnesses that would give any indication of anything like that.

PN176

In contradistinction, and I think my learned friend knows that this is coming, in contradistinction to a number of the applicant witnesses, who, when cross-examined about their material and how it was prepared, they didn't just say, 'We had assistance from a lawyer', again, fine, nothing improper about that, normal, but when they were cross-examined about the content of their statements, it was plain that in a number of material respects they had no idea why they had included particular evidence in their statements, and I'll come back to that. That is an issue which you need to judge, in our submission, with sternness.

PN177

The final point, which also goes to the quality of the evidence, this is the final introductory point, is that, Commissioner, it's of some concern to us that amongst both groups, the roamers and P1, you heard evidence, and I'll give you the references, that there seemed to be some cooperation amongst people within each subject group about what was to go in their statements, and to use Mr Douroukis' words, 'borrowing points from each other'. And I'll come back to the P1 evidence about that.

PN178

What we say particularly about the roamers, Commissioner, to the extent that you need to make findings of fact about what happened 20, 21, 22 years ago, is that you should be, like all good judges, extremely sceptical of relying on evidence relating to disputed matters, things like oral conversations that occurred 20 or 22 years ago, in circumstances where there has been material put before you that is so deficient, so poor quality in the nature of the story that was told and the events that were missing, and also in circumstances where the witnesses, a number of them, out of their own mouth, said that they cooperated in the preparation of their statements, and most importantly that is not a correct thing to do, and they should've been warned against that.

PN179

There's no evidence about any such warning, but, in any event, the key question in all cases is, is the evidence that's given by a witness their own evidence? Is it evidence from their own memory and is it reliable, and you should not be satisfied that that is so.

PN180

In terms of the P1 employees, I refer expressly to the evidence of Mr Tannous as an example. Now, we don't say Mr Tannous was dishonest, far from it. In fact, he was very frank in the answers that he gave us when we asked him these questions, and he says, and I'll refer to the transcript, Commissioner, if I may as TCB, transcript court book, rather than court book to distinguish it from the main court book.

PN181

THE COMMISSIONER: Yes, okay.

PN182

MR TAMVAKOLOGOS: If you can please go to transcript court book, page 307 and following, and while you're finding that I'll read from it. He says he had assistance from everyone, in quotes, in preparing his statement.

PN183

At PN3534 he spoke to his colleagues about his statement. At PN3535 they discussed and they went through together and their understanding of it, that is, the events that occurred. At PN3539 you'll recall the cross-examination about those 11 words:

PN184

I have not been given a chance to explore the agreement and in time.

PN185

He couldn't recall how he came up with it:

PN186

I just typed it. We all worked together on it. I don't recall.

PN187

That is all, Commissioner, just totally unsatisfactory. This is very unreliable material to put before you.

PN188

Perhaps I'll complete that submission with reference to the roamers as well, and I'll come back to this later where it's relevant. Mr Douroukis, transcript court book 166, PN1888 cross-examined about the individual flexibility agreement statement:

PN189

Why is that here?‑‑‑Because it's just another dot point I added to my statement, just to add another dot point there.

PN190

And when you reflect on all of that passage, Commissioner, you ought to be satisfied that Mr Douroukis did not know what his own evidence was or what it meant, the effect of it.

PN191

Cameron Hunt, transcript court book 239, when I asked him that question, 'In my opinion' - you don't have to go to this, Commissioner, I'm giving you the references, you can check them at any time:

PN192

In my opinion like a Microsoft Teams roster wouldn't be an official flexible agreement that I've had with my management. It's more we calculated our hours at the end of the week, end of a fortnight and put down sick days.

PN193

In other words it just really had no relationship to the effect of a GFA. He didn't know why that was there.

PN194

Tyler Johnson, TCB 228, who plainly was an honest and forthright witness, when he was asked a question, 'Can you tell me why that matters?', about the proposed flexibility agreement, he's just simply said 'No'.

PN195

And later he says, 'So that roster is there, the flexibility is there'. I'm sorry, this is me asking him:

PN196

So, you've got a roster, the flexibility is there. You've been doing it for over a year, but now you're saying 'I haven't been given a proposed flexibility agreement', and what I'm asking you is, well, why do you need one? Why does that matter.

PN197

He says, 'I mean, I'm not sure. So, if you marry up, Commissioner, the very poor quality of the material that was put before you, essentially skinny affidavits that didn't tell a fraction of the story, a lot of subjective material which the applicant must know is inadmissible. There is no authority in this country which would justify the admission of that material, and in today's submission the applicant has not pointed to a single precedent as authority for any position that they have put to you, but certainly nothing justifying the admission of this material.

PN198

And, thirdly, Commissioner, having regard to the cooperation between witnesses as to the preparation of their material, and the fact that on a number of key matters the witnesses were shown, in cross-examination, to not understand their own evidence, you ought to be extremely sceptical about the case that's been put forward.

PN199

Can we move to question 1, the factual case that is. Can I move now to question 1? Question 1, Commissioner, is whether the employees, the subject of the application, are shift workers in accordance with 15.4(a) of Telstra's enterprise agreement?

PN200

In today's document the applicant says, well - and this is a peripheral argument, but I'll just deal with it early for completeness, both in the roamers groups and in P1 there are day workers. We don't really appreciate, at this point, why that matters. Of course, Telstra can have day workers and it can have shift workers.

PN201

The only employees which you need to be concerned about in resolving this dispute by arbitration is in the first sentence of question 1, the employees, the subject of the application. Whether there are day workers in parts of the business elsewhere just irrelevant, of no moment.

PN202

Going to the answer to the question, Commissioner, we say, and I will elaborate, there can be no doubt, for reasons which I will come to, that each of the roamers, the subject of this application, were in the year 2000 or thereabouts engaged as shift workers, or agreed to become shift workers within the meaning of clause 15.4(a) of the Telstra agreement.

PN203

There's eight reasons that we will put to you why that is so, and I'll go through each of them. The first reason, Commissioner, is clause 15 of Telstra' enterprise agreement relevantly contains only two categories of shift workers, that is, a shift worker under clause 15.4(a), which is the question for arbitration, and a temporary shift worker for which provision is made under clause 15.4(e).

PN204

Mr Dwyer put to you that there was a third category, and we don't need to make too much of this, it's probably just a semantic point, but there was a third category, which is an extended shift worker. In our submission, extended shift arrangements are simply arrangements that are for extended shifts where one is a shift worker, but there's not a lot that rides on that.

PN205

Essentially hidden in the applicant's material, hidden in plain sight really, is what is put before you as a fourth category of shift worker. And you will recall that there was a lot of debate about this on day 1 of the hearing, which is what we would describe as a perpetual volunteer shift worker under clause 15.4(c) of Telstra's enterprise agreement.

PN206

You will recall, Commissioner, that we had a fairly painful debate about that clause, and you don't need to go to this, but I will just refer you to transcript court book, page 79, where I made a number of submissions on day 1 about clause 15.4(c), and you said at PN823:

PN207

Now, if I find that persons are shift workers I won't have to deal with this question, that is 15.4(c), because clearly based on a plain reading of the provision it talks about Telstra asking employees, who are not shift workers, that's my plain reading and my provisional view.

PN208

And then you go no to say:

PN209

If they're not shift workers, that is, if the union succeeds and Telstra fails under what is now arbitration question 1, then there's a residual question.

PN210

But your provisional view was I don't think there's a dispute about this. If they're not shift workers, an employee who is not a shift worker can't be required to be one.

PN211

Despite all of that, we have in the document handed to you today repeated references to 15.4(c), and I refer to paragraph 42, paragraph 74, 79, 80, 97, 111 and 114. And if you read those paragraphs carefully, together with what the applicant said this morning, what they're really saying, Commissioner, is that there is a fourth category of shift worker under 15.4(c), which is this idea of a perpetual volunteer. You volunteer to be a shift worker, and you are perpetually a volunteer, which of course means that you can stop volunteering at any time.

PN212

With respect, your provisional view at PN823 is obviously right, that there's really no dispute about 15.4(c), or at least there shouldn't be. 15.4(c) says:

PN213

Telstra may ask employees who are not shift workers to undertake shift work.

PN214

In which case they'll call for volunteers. But if you're not a shift worker, you can't be required, let's substitute the word 'forced', to become one. So, fine, there's a protection there that in order to commence working shift work there has to be some act of volunteering, or, in our submission, as is obvious from 15.4(a), there has to be agreement. If you agree to something, of course that would encompass volunteering to it, you're not being forced to do it. So, there's not really dispute about 15.4(c) and we're surprised to see such heavy reliance on it in the applicant's submissions.

PN215

Our submission here is simple. This is our first point, there are only two categories of shift worker under this agreement. There is a shift worker under 15.4(a) or there is a temporary shift worker where an employee meets the requirements contained within 15.4(e) filling vacancies on a roster, et cetera. And they are paid the appropriate allowance. They are a temporary shift worker.

PN216

Of course, we don't have any problem with the submission that a temporary shift worker can, as indicated expressly in 15.4(e), stop working shift work. Subparagraph (3) provides for that to occur in the first sentence. The employee can opt out of the temporary shift arrangement on a quarterly basis.

PN217

We come back to day 1, quite amazingly, of the hearing. We say, and the applicant said to you on day 1, but has resurrected the argument, having it seemed abandoned it earlier, that there is a perpetual volunteer shift worker under 15.4(c). In fact it was put somewhat incredulously by the applicant this morning that that is so on a plain and ordinary reading of clause 15.4(c).

PN218

You should just dispense with that argument fairly quickly, Commissioner. 15.4(c) doesn't say that. There is no sensible interpretation which permits that argument to stand. The applicant concedes it was initially unclear but now very clear that none of these employees are temporary shift workers under 15.4(e). Part of the factual matrix is that there were two employees, Mr Tannous and Mr Marshall, who did earn that allowance and were working temporary shifts for a time, but then that was overtaken by their appointment and upgrade as was indicated in the evidence.

PN219

So, it is agreed between us that this is not a 15.4(e) case, which leaves you only, in our submission, with 15.4(a). There is simply no other way for these employees to be working shift work.

PN220

So, on one view of the world, Commissioner, there's a short and a long decision, if I could put it that way, that you can write, and it is plainly available to you, despite all of the evidence that you heard, to really go back to the fundamentals of all of this and say the applicant is wrong in the way that they have positioned 15.4(c) before you. That is not a standalone category of shift worker, there is no sensible interpretation that gets you there.

PN221

It is agreed between us and it is not argued - well, I withdraw this, I'll just put it that simple, it is agreed between us that this is not a 15.4(e) case, which by exclusionary logic only leaves 15.4(a). That's all. There's nothing left.

PN222

So you don't really need to get into the weeds and the facts in circumstances where there is no other way for somebody to perform shift work under the Telstra Enterprise Agreement and there's no other conceivable way that has been put to you in argument.

PN223

Commissioner, in terms of the meaning of the word, 'Engaged', so I'm still addressing question 1 of the arbitrated - of the question for arbitration, in terms of the meaning of the word, 'Engaged', we have referred you in our case book to the - I won't take you to it, I'll just read it, the reference is there, to the decision of Loves Bus and Taxi Service where there was interpretation of the word, 'Engagement' and what's said there at page 91 and 92 which I think will be uncontroversial:

PN224

The reference to the engagement of the worker, in my opinion, directs attention to the basis upon which the worker was employed as a matter of law and fact. It does not simply direct attention to the label placed upon the status of the worker by the parties.

PN225

Now, it's a statement of the obvious, Commissioner, but it's a helpful reference so far as it goes and I'll take you to some other High Court authority which fits to a T with this, so much has been put to you in this application about what the label is of someone, what - how they are labelled or what they thought themselves to be and we have repeated references from courts and tribunals including the High Court only months ago, to say look at the objective facts and look at what that means under the law, don't look at labels. Labels are not how you analyse these issues.

PN226

The second point we want to make, Commissioner, and this is about the word, 'Engaged', in 15.4(a) and (b) and this is a submission specifically concerning the roamers group. The applicant says they were volunteers. They volunteered to do shift work and they have volunteered on each shift perpetually ever since.

PN227

(Indistinct) that defined common sense, the roamers could not possibly have volunteered under this concept of volunteering forever which seems to be an argument which comes out of 15.4(c) but put the 15.4(c) point aside for a moment about whether that's what it means, these were people that were engaged, hired, whatever the word is, commenced performing the shift work in the year 2000. That is an agreed fact.

PN228

15.4(c) of the 2019 Telstra Enterprise Agreement did not appear in the agreement that governed the arrangements in the year 2000. So there is a temporal point again which permits you, Commissioner, to write a very short decision concerning the Roamers. There was no 15.4(c) in the year 2000. The '98 to 2000 Agreement is before you in evidence. You will see that it only - tab 66 and clause 10.5(b) of that document says:

PN229

Staff working shift work may be engaged. That is precisely the same word used in clause 15A of the 29 Enterprise Agreement.

PN230

In other words, that document only allowed a shift worker to work shift work if they were engaged to do so, so the union can't say, 'Well, they've been engaged or they were engaged under the governing document then which uses precisely the same word as the governing document now.' It fits to a T but they weren't engaged and that they volunteered and should be regarded as perpetual volunteers.

PN231

Again, no authority for that proposition, no foundation for it in any of the governing documents. The other thing I will say about that and I'm sure Commissioner, you have noticed, excuse the pun, the shift in the argument, is that the union was very strong all throughout the hearing on the fact that, this is our third reason why we say that the Roamers were engaged or agreed to be engaged as shift workers, the union was very strong all throughout including in their opening submissions and I refer you to paragraph 48 where they say this:

PN232

The agreement, that is the agreement to work shift work in 2000 was made in accordance with the 1990 Agreement -

PN233

- which you will recall, Commissioner, is a certified agreement compulsory to comply with it back then which was in force at the time and that matter up until we received this document this morning, was agreed. We also said that. The arrangements were made under the 1990 Shift Operations Agreement which is in evidence before you.

PN234

Why does that matter? Well, the answer's very obvious, because that document says - you'll recall in our opening, Commissioner, we said that that document was going to be critical to your disposition of this arbitration. That document provides in clear terms, and I'll take you to it in a moment, that only shifts additional to those rostered will be voluntary. The inescapable conclusion being that the flipside of the coin, is that rostered shifts were not voluntary, they're involuntary.

PN235

Having had that brought to their - having had that detail brought to their attention emphatically during the hearing, the applicant now says - excuse me. Excuse me, Commissioner. My tab fell off and now I can't find it. Paragraph 105 of the document handed up this morning - so opening submission on one hand and the document handed up this morning in the other. In their opening - and the four days of hearing were conducted on this basis, paragraph 48:

PN236

The agreement was made in accordance with the 1990 Agreement which was in force at the time.

PN237

Having now realised that the terms of that agreement are disastrous for what they say was the agreement, they say at paragraph 105 of the document handed up this morning the agreement was purportedly made in accordance with the 1990 Agreement.

PN238

Now, in the nature of a shifting case, that's some shift because we had four days of arbitration before you, Commissioner, and a lot of cross‑examination based on one matter which was agreed and which was a foundational matter which was that the 1990 Agreement governed the agreement that was made in relation to the Roamers working shift in the year 2000.

PN239

You should reject out of hand any submission now that that is not the case. The applicant's written material provided this morning and their oral submissions said nothing about what you should make of the 1990 Enterprise Agreement, the shift principles agreement.

PN240

They have been completely silent on the provision which provides that only additional shifts not rostered are involuntary and again, Commissioner, it is open to you and we say you should because it's plain as day that this is the position, as concerns the Roamers, the agreement in 2000 was made in accordance with the 1990 shift operations agreement.

PN241

That agreement says what it says about the circumstances of shift work, it's completely in line with the Telstra Enterprise Agreement at tab 66 which says shift workers can be engaged and which contain no equivalent provision to 15.4(c) of the current 29 Enterprise Agreement and so really all that leaves you with is no contest - no real contest to the fact that that is what occurred in the year 2000 and you can dispense with question 1 on that basis.

PN242

The third reason that you should find that the Roamers were engaged or agreed to become shift workers in the year 2000 is that as a matter of history the evidence of both the applicant and the respondent was that the purpose of putting in place shift work arrangements, the 10‑week, five‑week day shift, five‑week night shift roster, that the purpose of all of that was to move away from the arrangements that were existing prior to that which were for on call or overtime arrangements.

PN243

That was the whole idea. So the whole idea, this is agreed and I'll refer later to the Roamers evidence on this, was these should not be day workers who come in and work overtime late at night outside the span or on weekends and they should not be on call. We should just have shift arrangements in place, we need it to cover the network, let's do it and there was a lot of evidence from Mr Evans, most of which was unchallenged but that was certainly unchallenged, that's the reason that these arrangements were put in place.

PN244

What the applicant now says completely contrary to the point of the exercise that has been in place for 22 years, is these are people who can at the flick of a switch, not be shift workers. In other words, there's no shifts, there's no certainty, they don't have to do anything and our point is simply as a matter of history, as a matter of context, all of the evidence to the extent that you need to go to the evidence is that that would undermine the very reason that these arrangements were put in place in the first place.

PN245

The next point, Commissioner, which also goes to the 1990 Shift Operations Agreement which you might recall is at court book page 395, and as I say, prior to this morning there was no purportedly - made in accordance with that, there was no doubt that all of the case was run on the basis that that agreement was observed and as I mentioned, it provides that only shifts additional to those rostered would be voluntary.

PN246

And what is more, you will see from the terms of that document, I don't need to go to it in detail, that extended shift arrangements were contemplated in that document and Gary Evans gave evidence, the truth of which is without question, that that document was relied on to make those arrangements and our point here is simply, that fourth point, there is every reason for you as a trier of fact, to accept what Mr Evans said and there is no reason not to accept what he said and no reason has been put to you.

PN247

I'll also say as a matter of completeness and I'll come back to this idea of the totality of the evidence, you must look at the totality of the evidence, and I just say this for completeness to inform you, on our review of the transcript it was only Mr Seychell, one of the Roamers when it was put to him who said that there was one aspect of the 1990 certified agreement that was not observed and that concerned the provision of beds for respite, this is all at transcript case book 269 and so he said that in his oral evidence.

PN248

He also said in his witness statement which is at case book 56, this particular part, that the 1990 Agreement would apply for the duration of these shift arrangements, which is again consistent with what we say. Now, we don't - when we read the 1990 document, we don't see anything in there which provides for the provision by Telstra or any of its predecessor organisations of beds for respite so we don't really know what to make of Mr Seychell's evidence. We're not doubting what he says. There's no reason - it's just one of those footnotes that really doesn't go anywhere.

PN249

The fifth reason, Commissioner, that you should find that the Roamers come under 15.4(a) of the agreement is that to the extent that it needs evidence and I've given you in my first three reasons why as a matter of construction you can find for us without looking at any evidence.

PN250

To the extent that you need to go to evidence, you heard evidence from both the applicant and the respondent's witnesses that the use of the word, 'Volunteer' about which so much has been made, in the evidence was consistent with the 1990 guidelines and what Mr Evans said which is that to get into shift work in the first place, one had to volunteer.

PN251

You also heard evidence of different phrases which really mean the same thing, express interest, expression of interest volunteer. And we have no issue with that, that's consistent with our case but that is the way that one got into shift work and indeed under the current agreement, 15.4(c) which is not relevant to the Roamers but is relevant to T1, one can only get in by some act of volunteering.

PN252

Now, part of the fifth reason that we put to you which is going through the evidence, I'm going to give you some references to evidence, Commissioner, and just given the amount of the - I don't think you'll have time to do a lot of flicking on this, you're very fast at it, Mr Evans gave evidence about the introduction of the shifts in the year 2000.

PN253

We say which was these aspects which I'm coming to, were uncontested and ought to be accepted and when I say something is uncontested, Commissioner, it's very important that if the applicant wants to contradict anything we say because there's been a lot of sliding, that it be done precisely and with reference to the transcript references that can be examined by you because I'll give you some examples in a moment where propositions are put to you, that is, propositions of fact that you should find and there are then transcript references provided by the applicant which say exactly the opposite of the proposition that they are said to support.

PN254

So we need to be precise about all of this and that's not a comment directed at you, Commissioner. In his statement at case book 365, Mr Evans said:

PN255

Shift work and the shift work roster was developed as an alternative to recall and overtime of staff.

PN256

He said at paragraph 14, case book 366:

PN257

There were meetings to discuss the composition of the roster. There's an expression of interest process which was informal, essentially employees could express interest by speaking to their manager.

PN258

Now, we say there's no difference in substance to that and this idea of volunteering, i.e., one couldn't be forced to adopt these shift work arrangements, one had to put oneself forward. Staff - paragraph 11 of his statement:

PN259

Staff were then selected on a voluntary basis.

PN260

Importantly, consistently in both his written evidence and in his oral evidence, Mr Evans was resolute that there was no arrangement that working shift work was optional or that employees could unilaterally opt out at any time, that's paragraph 19 and following in the statement. Rather, his evidence was that if an employee had a reason to wish to cease working shift work, they would speak to their manager who would consider the situation and make a management decision.

PN261

In our submission, that evidence should be readily accepted. Every reason to accept it. No reason not to accept it. Apart from its inherent credibility and reliability, Commissioner, that evidence of what happened so many years ago is consistent with two other matters.

PN262

The first is it is consistent with the terms of the 1990 Agreement itself which provides that only working shifts additional to those rostered would be voluntary, in other words, one volunteers or expresses interest to get into the shift work but from there working the roster is not voluntary but working any shifts additional to the roster is. It's very simple when you break it down in that way and that's all objective and it's all in the agreement.

PN263

The second matter which supports what Mr Evans said in his statement and orally is that the evidence, not the assertions in the statements but the evidence you heard during the hearing, was that the circumstances where shift workers who were working shift work then came off shift, is not consistent and in fact is completely diametrically inconsistent with this imagined idea of volunteering or to put it in a different way, the idea that under 15.4(a) shift workers had a unilateral opt out right.

PN264

So let's go back to the way that the case was put and the way that the evidence came out. The case was put to you in a number of the Roamers' statements about which I'll refer specifically in a moment, people came off shift over the years. That's true. But the assertion as opposed to evidence, the assertion put to you by Mr Dwyer and in some of the evidence of the Roamers, was that that occurred in the circumstances of a unilateral opt out right.

PN265

Why was that evidence put forward? It was put forward as proof of a right that otherwise existed. Now, if you are with us, you will not find with reference to the governing documents in the year 2000 that there could be any such right.

PN266

But in any event, Commissioner, what we say and we'll expand on this, is that the evidence of what happened after Mr Evans made the arrangements in the year 2000 supports completely what he said in evidence which was if somebody wanted to come off shift, essentially that would be accommodated based on the reason and that's what's happened and I'll come more specifically to the evidence about that in a moment.

PN267

So you have Mr Evans' written evidence, you have him backing that up orally with evidence that was not contradicted in any way, you have objective evidence, the 1990 Agreement which supports the evidence in what he said and then you have years of people coming off shift in circumstances where it was put to you that they exercised a unilateral opt out right but the evidence really made quite plain that there was a discussion, a sensible discussion, an agreement with managers to accommodate their employees as one would expect. So every reason to accept what Mr Evans said, no reason to doubt it.

PN268

Now, Mr Dwyer at paragraph 113 - I'm sorry, paragraph 103, of the document handed up this morning says this, so the proposition is put in this document is staff were volunteers. Mr Evans stated, reference is given and then you'll see some passages there and importantly, Mr Evans says at 2932:

PN269

You wouldn't call that opting out.

PN270

So it's put to him if someone's got a health problem they can come off and then it's put to him:

PN271

You wouldn't call opting out, would you?

PN272

And Evans says:

PN273

I wouldn't call it opting out. Like a health reason is a very serious reason, yes. So yes. I treat that as just the day‑to‑day working relationships between staff and their manager. Right. And if it was something - someone who came to you with a personal issue, the same thing.

PN274

Now, that passage with reference to Mr Evans' evidence is put to you to suggest, it seems, that staff were volunteers, not only that they volunteered to come in but they are volunteers forever. Now, forgive us, Commissioner, if we're misreading this but that passage is completely consistent with all of Mr Evans other evidence that it always involved a managing decision and does not support in any way what is asserted at 103.

PN275

It actually says the exact opposite, in our submission. The other thing I'll say and this is more a matter of completeness, I'll just give you the references. I asked Mr Evans in examination‑in‑chief, TCB327:

PN276

After they volunteered to take on shift work as part of their roles, were they volunteers forever in those roles?

PN277

He said:

PN278

No.

PN279

In cross‑examination TCB355 Mr Dwyer asked:

PN280

Was voluntary exclusion from the rosters agreed?‑‑‑No.

PN281

You should then read at TCB356 the passage between PN4110 and 4111 and also earlier, this is TCB329, PN3801 when questioned about some evidence that Mr Baker had given, Mr Evans said:

PN282

I do not agree with the opt out part.

PN283

Now, I'm still on my fifth reason, Commissioner, and I'm going to move to a slightly different fact. So we say in summary there, 'Accept what Evans says. It holds enormous reliability and credibility based on not only what he said and its unimpeachability but other objective matters as we put to you.'

PN284

Now, there was a lot of cross‑examination of Mr Evans, I think about six pages of it on the transcript about this concept of permanent shift work and I think really what it was all getting to was the shift work can't be permanent if there are circumstances in which a shift worker can cease performing shift work.

PN285

Now, the important point to keep reminding ourselves about question 1 and the case proper is what is asserted by the applicant is these people are all volunteers and they have a unilateral opt out right. Call it stop volunteering, call it exercising your right, however one describes it and this is the way that Mr Dwyer sought to prove that. PCB 331 Mr Dwyer put to Evans:

PN286

Well, if you become unfit to do shift work, that presumably is reference to a health issue, you're unfit.

PN287

And the answer was:

PN288

Well, that would be managed to the right solution.

PN289

Then at TCB332 and following and, with respect, this is how irrelevant it got, it was put that the employee could die or they could resign and Mr Evans in a little bit of confusion said:

PN290

Well, it's like any other role and if you die or if you resign or if you apply for another job, well, of course that's the end of the shift work.

PN291

That doesn't go against the idea that they're permanent shift workers, it doesn't indicate the exercise of some unilateral right. Far from it. And then at TCB334 this is put to Mr Evans:

PN292

Right. So your position is you were either a volunteer or a permanent shift worker.

PN293

Which of course if you read the transcript wasn't his position at all but the answer in direct terms was this:

PN294

Well, a volunteer is only used in the process of getting there. I wouldn't class any position as a volunteer. It's just how you get there is where the volunteer comes from.

PN295

It went on and on, Commissioner, TCB336, it was put to him:

PN296

If Telstra terminated the shifts at will, the staff for permanent shift workers are not permanent shift workers.

PN297

Well, again, irrelevant. And I won't go through the rest of it, Commissioner, other than to make a global submission that all of this cross‑examination from TCB330, PN380 - sorry, PN3807 and following, is of no assistance to you whatsoever in this matter or in determining the answer to question 1.

PN298

Of course there are many reasons why a roamer might during the course of their working life, cease to become shift workers. Yes, somebody might die, they might resign. They may find another job, et cetera. None of that has any logical connection to a so‑called perpetual volunteer or unilateral opt out right. All of that evidence was not relevant.

PN299

The sixth reason, Commissioner, that you should find for us in relation to arbitration question 1 is that you ought not be convinced and to take it one step further, you ought to be unimpressed by the written statements and evidence that were put before you in support of this unilateral opt out right.

PN300

Now, I'm going to be more specific here in addition to the global submission we made because you as a trier of fact, in assessing the issue of the reliability of the evidence of a witness, ought to consider the totality of the evidence importantly, not only what people say or assert in statements but what happens when that evidence is tested and also we say in fact that some of what the roamers said even in their written material directly contradicted the union's assertion that they are volunteers who can stop volunteering and were not engaged or agreed to become shift workers or have this unilateral opt out right.

PN301

Let me give examples. John Messina. He gave evidence about this assurance that he was apparently given that if he volunteered to work the roster he could return to normal work hours at any time. Now, we say something obvious about that. Even if that were true, Commissioner. Sorry, I withdraw that. Even if that were accurate, it is hard to remember things that happened 22 years ago precisely.

PN302

Even if that were accurate, even Mr Messina doesn't suggest that that's an assurance that went beyond him. But in any event, so it doesn't get the applicant's case very far but in any event, Mr Messina's evidence was strongly denied by Mr Evans and with reference to the objective matters such as the 1990 Agreement which refers to the involuntary nature of rostered shifts, you should prefer from a reliability perspective, what Mr Evans said.

PN303

But in cross‑examination, Commissioner, Mr Messina agreed at TCB115 that there could have been discussion about trialling rosters. He said that there was a lot discussed, it was a long time ago in fairness to Mr Messina. He said at TCB116 that it would have made sense when I suggested it to him that during the period of trialling rosters an employee could come off it if they didn't like it.

PN304

And importantly, Commissioner, in fact, critically, he agreed at TCB111 when I put the 1990 Agreement to him, I gave him a copy, I allowed him to read it and I showed hi the clause which said, 'Rostered work is not voluntary.' And he said, 'No. If it's rostered it's normal work', and again at TCB114:

PN305

Do you agree with me -

PN306

- I said -

PN307

- that working rostered shifts is involuntary, in other words, if you're rostered you have to work, that's the job.

PN308

And he said:

PN309

I wouldn't refer to it as involuntary, I'd just say it's my work.

PN310

And I followed up:

PN311

You'd say that's your job.

PN312

And he said:

PN313

It's my job.

PN314

So really when this evidence was put under a little bit of pressure it's completely consistent with the respondent's case. We say two other things about the verbal assurance that Mr Messina referred to. When he was cross‑examined about it, his own evidence was that he couldn't remember the words but he recalled that it was during an early meeting when the idea of the shifts was being developed.

PN315

And what we say about that is, if you look at the sequence, the history, the chronology, it does make sense that if it was said in that context that early in the piece, that it was in the context of a trial of the roster rather than after the rosters had been set, for example, somebody saying to him, 'That's fine, Mr Messina. You can withdraw at any time.' That will be different.

PN316

So, Commissioner, you can and should be sceptical about accepting the evidence of that assurance, particularly in circumstances where there's nothing objective that supports it unlike Mr Evans' evidence. The other thing I would say is that court book 68, again I'm going to run through this quickly because there's a bit of it, so I won't take you - I won't wait for you to go to the references, Commissioner. They're faithful references.

PN317

Mr Messina said there were other employees who voluntarily came off shift and as I mentioned earlier, the evidence - that evidence was given by a number of the roamers but the evidence given by Gorgievski and others and also in cross‑examination indicated quite clearly that there was no voluntariness about these people coming off shift.

PN318

For example, George Gorgievski said at paragraph 13(b) of his statement, case book 371, that Theo Michael who was one of the examples given in a number of the roamers' statements, came to him with some personal reasons to stop working shift work and that that occurred through discussion and agreement.

PN319

He gave the example in 13(c), case book 371 about Lam Nguyen who was always filling in for another employee who was sick with cancer and it was the arrangement and as occurred, when that employee recovered and returned to work, Mr Nguyen went back to his normal job and there is objective evidence in support of that which is at tab 41 of the court book. You can have absolutely no doubt whatsoever that they were the circumstances of those employees coming off shift.

PN320

Mr Messina admitted in cross‑examination at TCB119 that he was not in any of these discussions. So what should you, Commissioner, as a trier of fact, make of this and I'm referring now in particular to Mr Messina's evidence for no reason other than he was first cab off the rank. Mr - evidence was - Mr Messina was willing to come to the Commission to give evidence that employees had exercised a voluntary opt out right from shift work which plainly they didn't.

PN321

George Gorgievski wasn't even cross‑examined on those aspects of his statement. It's uncontested evidence. So you have compelling, uncontested evidence about the circumstances of employees ceasing shift work and it had nothing to do with perpetually volunteering or exercising a unilateral opt out right. So what do you make of Mr Messina's evidence to the contrary?

PN322

Now, our submission is this, Commissioner, and we wish to be tempered about it, you should find that Mr Messina's evidence is not reliable. It wasn't accurate. It didn't have the slightest objective basis and you'll hear me repeat this in relation to other aspects of evidence of others. Now, what does that mean for the assurance that Mr Messina says was given to him 23 years ago?

PN323

We have put to you why contextually it's possible to see that assurance consistently with what was going on at the time but if what is suggested is that that assurance backed up by nothing, contrary to the objective matters which I referenced earlier, gave all of the roamers some unilateral opt out right or Mr Messina some unilateral opt out right, that should be rejected.

PN324

I'm still on my fifth reason, Commissioner. I'm just going to go now through the substance of the evidence of each of the roamers. You'll recall that what was put to you on day 1 and this was part of the directions that the applicant pointed to that Commissioner Johnson had made was that these were to be treated as separate applications.

PN325

Now, our submission to you is it's very easy really to decide this case without going into all of this detail because of the construction issues that I referred to earlier but if you are not accepting of that and you do need to go and make specific factual findings about the circumstances of particular employees, I'm in a position where I have to provide you with references to the evidence and make submissions to you about what those findings should be and that's what I'm going to do.

PN326

The next witness was Anderson. He described the roster as a voluntary roster. At case book 71 he said he could opt out of it at any time and that all of his managers including his current one who gave evidence completely to the contrary, adamantly agreed with him. He also gave this evidence, he gave a list of other employees ceasing to work shift work and he said they opted out. We repeat our submission made earlier about the reliability of this evidence.

PN327

Other aspects of Mr Anderson's evidence, TCB131, he had no recollection of the 1990 Agreement being discussed in the year 2000. He wasn't one of the people that was close to those discussions.

PN328

Despite saying in his evidence that Gorgievski, his manager, agreed with his position about opting out, when I put to him exhibit R1 which was Gorgievski's email that had been sent out as part of the dispute process to - and yes, drafted with HR assistance but sent by Mr Gorgievski and no reason to suggest didn't encapsulate his views, and that that email scotched any idea of opting out or anything like it, Mr Anderson said he'd been on long service leave and in any event even though he'd been back for months, he hadn't read the email.

PN329

Presumably that's why he gave evidence that was completely contrary to what the email said. Helpfully to Telstra, he conceded under cross‑examination that his discussion with his manager Fitzgerald, at PN1505 was in the trial context, that is a trial of a roster and we say that that's important context.

PN330

The evidence from TCB1381, Commissioner, which is about this opting out of other employees that were working shift, we say plainly demonstrates that Mr Anderson simply didn't know the arrangements between Telstra and other employees who were performing shift work. Interestingly, he also said that Theo Michael, who was one of the employees who apparently exercised this unilateral opt out right, still works at Telstra. That's at TCB140, PN1564. I asked him:

PN331

Are you aware of any reason why Theo Michael is not giving evidence?

PN332

He said:

PN333

No.

PN334

Commissioner, we take a Jones v Dunkel point here. Mr Michael is there. The union could have called him. Obviously it's within the knowledge of someone who they did call that he's still there. They gave Theo Michael specifically as an example of someone who had opted out, so they knew about him. They didn't call him. They didn't subpoena him.

PN335

If he didn't wish to give evidence, they could have easily subpoenaed him and they could have simply asked him, 'Tell us about the circumstances of you ceasing to perform shift work.' And if their evidence - if their case theory was right, I should say case hypothesis, he would have said, 'Yes, I opted out.' Of course none of that happened.

PN336

So again, Commissioner, you should take a very dim view of the decision‑making here and in any event, we take a Jones point that Theo Michael's evidence would not have assisted the applicant. Baker had no recollection of the 1990 Agreement but he gave evidence that where the union said that they governed the arrangements, his evidence was that employees could come off the roster for personal or health reasons.

PN337

Now, I might pause here and say, Commissioner, just a major fractural inconsistency throughout many of these statements the applicant says to you today as they've said all along, people volunteered all along and they can stop volunteering at any time or to put it another way, they have a right.

PN338

They can opt out of shift work but witnesses like Baker said even in their written evidence before it was tested, that to come off the roster Baker said one needed personal or health reasons. So his own evidence if that had been tested, was there's no - you can't just stop, you need to give a reason and presumably one would infer, there needs to be substance to the reason. It can't be a fake reason. It can't be confected.

PN339

So the applicant all along has run a case on this which is without foundation and unsustainable and I'm not going to repeat that submission other than to give you the relevant references you need. Now, to his credit, Mr Baker readily conceded at TCB149 he didn't know the circumstances of colleagues opting out and there was a moment of real insight, in our submission, during Mr Baker's evidence where he gave what was plainly frank and honest evidence as follows, on - I said to him, this is at TCB150, I said to him:

PN340

I'll put it to you, Mr Baker, that the concept of opting out, that is the concept of simply being a shift worker and then saying 'I'm out', opting out for no reason, that is not what was agreed in the early 2000s or at any other time.

PN341

And his answer was - he didn't say, 'No, yes, it was. It was what happened.' His answer was this:

PN342

Well, what was agreed is that we'd work 12 hours and 15 minute shifts and that's changed.

PN343

And I then said to him:

PN344

So in your view -

PN345

- this is TCB150 -

PN346

- essentially all bets are off.

PN347

Now, I think Mr Baker, Commissioner, gave us a real insight into what's going on here that the realpolitik which is Telstra has proposed one thing to reduce the 12 hour 15‑minute shifts to 12 hours, one of the other proposed changes we decided to occur based on the evidence that you heard, and what Mr Baker is saying is true.

PN348

The way that this is being looked at in an imprecise way contrary to the terms of the agreement and contrary to all of the facts is simply, 'Well, look, if you're going to change the arrangements all bets are off. We don't want to work shifts.' That was a real moment of insight and that is a realpolitik of this. There is no basis in fact to find that there was a voluntary opt out right.

PN349

Now, what we would also say as a matter of completeness is that Mr Baker's evidence, that is, if you changed the length of the shift we're opting out of the shifts, that of course doesn't align with how the 2019 Agreement works subject to meeting certain requirements, consultation, et cetera, notice, consultation, et cetera, Telstra is permitted to change the length of the shifts. So all bets are not off.

PN350

Mr Douroukis at TCB159 said he hadn't read the 1990 Agreement when the shift rosters, excuse me, were first implemented in 2000 more recently. That's at PN1820. At TCB163 he said there was a flexible opt in or opt out arrangement, according to staff's personal or wellbeing commitments, we repeat our submission earlier about that qualification inconsistent with volunteering, perpetually.

PN351

You will see from PN1851, Commissioner, and you may well have forgotten this given that you've probably heard lots of cases between then and now, Mr Douroukis was quite argumentative and there was little bravado in the way that he answered these questions, but then I asked him about cooperation between roamers in preparing statements, this was all in the context of the flexibility agreement and I will ask you to turn to this, please. Can you go to TCB166? That's PN1887.

PN352

So I'm asking him a question about the flexibility agreement, why does that matter at PN1887 and he says:

PN353

It's just a point I've added to my statement.

PN354

No, but why?‑‑‑Because it's just a point that I added to my statement. Just to add another dot point there.

PN355

What an extraordinary thing to say about why someone's given evidence. In any event, can I suggest - 1891:

PN356

Can I suggest to you, you don't know why that's there?‑‑‑I'm not going to answer that.

PN357

I said:

PN358

You have to answer that.

PN359

I then tried to drop the temperature:

PN360

Let me just pause and say I'm sorry that the proceedings can be adversarial but I have to ask you these questions. You put that in your statement, you can't give me a sensible reason why. If you don't know why, just admit it.

PN361

And he said:

PN362

It's just another point in my statement.

PN363

And this is the important part, 1896:

PN364

Well, how did you find those words?‑‑‑Well, I did write this in conjunction with other peers.

PN365

1900:

PN366

You borrowed points off each other?‑‑‑Yes, possibly so. A lot of these points.

PN367

At 1903 I say:

PN368

What other points?

PN369

And he says:

PN370

Opt in, opt out.

PN371

He says at 109:

PN372

In terms of the borrowing of the points, how did it happen?‑‑‑Probably it was overheard.

PN373

I press him further about the flexibility agreement and says at 1914:

PN374

That statement was put in by Dan Dwyer.

PN375

There is an important distinction, Commissioner, which I made in my introduction, there is a difference about the size of the Grand Canyon between a witness having the assistance of lawyers, nothing uncommon about that in litigation to a witness taking evidence from others, taking evidence from their lawyer and critically, not understanding what the evidence is. It is not their evidence. You should be most unimpressed with these aspects.

PN376

Now, it all goes on and I'm not going to go through all of it, just some material aspects. 1931:

PN377

Which of the others saw the draft? That's the draft statement?

PN378

I'm sorry, 1928:

PN379

Apart from the flexibility agreement point, what else did Mr Dwyer add?‑‑‑Yes, point 12.

PN380

1931:

PN381

Which of the other roamers saw the draft?‑‑‑Um, my immediate shift roaming staff. He described them as category A.

PN382

I said:

PN383

Category A -

PN384

- because I didn't know who that - who he meant, and he said:

PN385

A list of the employees, the shift roamers not the P1 would have seen this draft because I saw theirs.

PN386

1938:

PN387

You saw each other's drafts? It was all sent, you know?‑‑‑Yes.

PN388

On one email?‑‑‑Yes.

PN389

By Mr Dwyer?‑‑‑Yes. I talk amongst my peers every day

PN390

At 1945:

PN391

We had discussions.

PN392

It goes on and on. Then and I'll ask you to flick through to 1986 and I'm pointing this out in fairness to Mr Douroukis, as the cross‑examination developed, the penny dropped about the preceding seven or eight pages of what had been in a forthright manner put forward by Mr Douroukis where he said:

PN393

Oh no. Hold on. I take that back and I never read none of theirs. It was all one‑on‑one.

PN394

And you'll see very shortly thereafter Mr Dwyer gets up and starts making objections and I was critical of that and remain critical because the reality is, Commissioner, that in a hearing we're all trying to get to the truth and you heard that, how Mr Douroukis back‑pedalled when he realised the effect of what he had said.

PN395

Mr Dwyer tried to save him. In our submission, it was far too late and when you then read the re‑examination by Mr Dwyer, there is nothing in it which in substance clarifies or reverses or takes back what Mr Douroukis said about evidence. Now, our submission on all of that, we don't - Mr Douroukis is a valued, highly skilled employee. We don't wish to make any submission about him or anyone to the effect that they've done anything deliberately wrong. We simply ask you for a finding, Commissioner, that that evidence is not reliable and you should not accept it.

PN396

In relation to Mr Dwyer's involvement, that's a matter for you, Commissioner, what to make of that. David Seychell, I don't need to go through in detail, his important evidence was paragraph 25 where he said in his statement:

PN397

Roamers could exclude themselves from shift for personal reasons -

PN398

- again, inconsistent with the applicant's case. I put to him during the hearing that his statement was quite carelessly prepared in that a lot of it was irrelevant, it preceded the events that matter in the year 2000. Mr Seychell would not concede that the 1990 shift operations agreement dealt with the subject of shift work. He gave this evidence about some concessions. Now, again, Commissioner, we don't wish to say much about Mr Seychell other than when looked at in totality, his evidence did not assist the applicant's case.

PN399

May I then deal with George Gorgievski who of course was a witness who gave evidence for the respondent, and again, I won't ask you to go to all these references, given the number of them. His statement is at case book 369. Mr Gorgievski gave evidence about the roamers' rostering arrangements and the work they perform. He gave evidence at paragraph 12 and following about the circumstances in which the past shift CTs had come off shift and that that had occurred with management discussion and agreement.

PN400

He also gave evidence about his discussions and interactions with Mr Markoski preceding Mr Markoski's shift swap and commencement of work as a shift worker. In cross‑examination it was not put to Mr Gorgievski that the roamers had a unilateral right to opt out of their shift work or that they were volunteers and I would ask you to look at, in your examination, from TCB393, PN4532 and following, where Mr Dwyer asks lots of questions about someone having an illness and the question is the question:

PN401

You would accommodate this request?

PN402

And the answer is:

PN403

We would look into the operational requirements and work with the employee.

PN404

That's it. So when our witnesses gave evidence about the reasons people are coming off shift, even the cross‑examination didn't suggest that people volunteered perpetually or exercised a right to opt out of shift work. So we take, Commissioner, a Browne v Dunn point.

PN405

The applicant can't say to you now in final submission, 'People were perpetual volunteers and can come off shift at any time or can exercise a unilateral right to opt out of shift work', in circumstances where the evidence is utterly contrary to that by Mr Gorgievski and others who I'll get to, and there isn't a question about it.

PN406

The question that was put that it's a request in circumstances where the employee has a reason. That was our case, not their case. And so you should not accept - in fact, to put it stronger than that, you cannot accept, with respect, what the applicant now says in their final submissions about perpetual volunteering and unilateral opting out.

PN407

In relation to Mr Markoski's situation, Mr Gorgievski gave that evidence at TCB399, PN4610. Critically, Commissioner, again, Mr Gorgievski was not asked a single question, not one, about what he said at paragraph 17 of his statement to the effect that when the shift swap with Graham Doyle was being considered, he was concerned about Mr Markoski not having worked shift work previously and he was concerned that if Mr Markoski took over Mr Doyle's role and performed shift work, he would have to do the shift work hours and he then says, I quote:

PN408

I explained this very clearly to Mr Markoski who conveyed that he understood that he would be expected to work according to the shift CTs roster.

PN409

Uncontested evidence which you should accept. I'll say more about the contractual argument that Mr Dwyer has relied so heavily on. This is an argument that's not limited to Mr Markoski, it's limited to others to say, 'Well, their contract doesn't say permanent shift work or shift work.' I'll deal with that separately. What I'm dealing with now is you have uncontested evidence before you from Mr Gorgievski about Mr Markoski being put on notice and essentially agreeing that if he takes the shift swap, he must perform shift work.

PN410

Commissioner, I note the time. I think I have about another 70 minutes. I'm happy to keep going. It's a matter for you.

PN411

THE COMMISSIONER: I don't want to interrupt the flow of your submission but I think we will need an adjournment before, I'm not going to make you go through till 2 pm, parties, without a break. So Mr Tamvakologos, it might be for you to indicate when you think might be an appropriate time for an adjournment.

PN412

MR TAMVAKOLOGOS: Sure. I think in about three minutes, if I may.

PN413

THE COMMISSIONER: All right.

PN414

MR TAMVAKOLOGOS: Because that will then bring me to my next point about why question 1 should be answered in our favour.

PN415

THE COMMISSIONER: All right.

PN416

MR TAMVAKOLOGOS: What I've been doing for the last half an hour or so, Commissioner, is going through what we say are the specific factual findings you should make in relation to question 1 should you need to make any and I'll complete that part of my submission by dealing with the evidence of Martin Standish, who's a manager of the roamers group, one of the two.

PN417

You'll recall that he gave evidence about the work they perform and also gave evidence about the circumstances of employees coming off shift and moving to day work and again, all of that evidence was consistent with those circumstances occurring with a discussion with management and an exercise, a sensible exercise of discretion on the part of management.

PN418

And again, not a single question to Mr Standish suggesting that roamers have a unilateral legal right to come off shift and that is what had been exercised by those employees. We take another Browne v Dunn point, Commissioner.

PN419

As a matter of basic fairness, the applicant cannot say to you now in final submissions after the evidence has closed, that there's a unilateral opt out right and that that evidence all supports it when two of our witnesses sat in the witness box and gave directly contrary evidence and that assertion which is all that it is, was not put to them.

PN420

And Commissioner, you will recall that it was put to you by the applicant very early on when you became involved in this matter, that Telstra should not even be permitted to have lawyers involved in the matter if it wasn't necessary. Now, I don't wish to make any submission about that, that's just history and uncontroversial.

PN421

The point is this. Mr Dwyer is a lawyer, has been for many years. He knows these rules, he uses them himself. There is no excusable reason for the failure to put those matters to those witnesses which is why we take the Browne v Dunn point and Mr Standish's evidence should be accepted in its totality.

PN422

Commissioner, I think that's the right point to have a break.

PN423

THE COMMISSIONER: All right. Thank you.

PN424

Parties, we'll adjourn and reconvene at 2 pm. Thank you.

PN425

MR TAMVAKOLOGOS: Thank you.

LUNCHEON ADJOURNMENT [12.52 PM]

RESUMED [2.00 PM]

PN426

THE COMMISSIONER: All right. Thank you, parties.

PN427

We are partway through Mr Tamvakologos' closing submissions so I'll let you proceed, Mr Tamvakologos because I understand I've got both you and Mr Dwyer on the line. Thank you.

PN428

MR TAMVAKOLOGOS: Thank you, Commissioner. One matter I ought to mention is during the break I worked through material again just to see whether I might be able to cut it down which I've done but in any event, I think my 70‑minute estimate was ambitious given the amount of territory we've got to cover.

PN429

THE COMMISSIONER: All right.

PN430

MR TAMVAKOLOGOS: I'm not suggesting at this point and I don't know whether it's possible to carry on past 4 pm but I just thought I might mention that, Commissioner.

PN431

THE COMMISSIONER: We'll see how we go. Let's see how we go today.

PN432

MR TAMVAKOLOGOS: Yes. All right.

PN433

THE COMMISSIONER: Thank you.

PN434

MR TAMVAKOLOGOS: So, Commissioner, I was addressing question 1 and I had completed the sixth reason why that question should be answered in our favour, I'll now turn to the seventh and that is that in our submission what you should do in deciding this matter, if you consider that you need to go these lengths, look to what has actually occurred in the 22 years since the year 2000 to the present day to make a finding as to whether the roamers were engaged as or agreed to be shift workers.

PN435

Now, in terms of looking at the history and making both factual findings and legal conclusions about their situation and in particular their contractual terms, so this is an argument to say you don't need to go this far but if you wish to go so far as to make findings about or determine what the terms of the contracts are of the roamers, we say two things about that.

PN436

Firstly, none of the roamers' written contracts that have been put in evidence governed their employment now and I think that will be uncontroversial. Of those who gave evidence I'm leaving Mr Markoski separately here, I think Mr Seychell at CB58, 59 and 60 put some documents but they preceded the shift arrangements coming into effect.

PN437

The second thing we'll say - so the written contracts don't govern. The second thing we'll say is that in the absence of written contracts and because every employee is by definition engaged under the contract service, if you consider that you need to go so far as to determine the relevant terms of the contracts of the roamers, our submission is that there is an abundance of guidance under a law about how to undertake that task.

PN438

And we're going to refer you now fairly quickly to some authorities to the effect that you can look at objective circumstances not people's opinions, not what they think but objective circumstances after an agreement has been made that is a contract to understand the terms or the scope of that agreement and in our submission, if you were to follow that path of analysis, you would comfortably find that the roamers agreed to be shift workers within the meaning of 15.4(a).

PN439

So I'm going to do two things. One is I'm going to make some submissions about the legal framework and the second is to address the evidence and why with reference to that legal framework the roamers agreed to be shift workers.

PN440

THE COMMISSIONER: All right.

PN441

MR TAMVAKOLOGOS: The place to start and I'm not going to take you to all of these, Commissioner, but I will read them and as I said earlier, the references will all be on transcript. The place to start is Damevski v Giudice, that's a Full Federal Court decision, page 113 of the case book that we provided where court, and I'm referring in particular to Marshall J at 82 says:

PN442

An agreement can be inferred from conduct alone. The intention of the parties is a matter of inference from their conduct and the inference is more or less easily drawn according to the circumstances of the case.

PN443

And then he also says at that passage:

PN444

Post-contractual conduct is admissible on the question of whether a contract was formed.

PN445

Now, you'll be aware of many authorities out there which say it doesn't matter whether you're interpreting a contract or an Enterprise Agreement or sometimes a statute, don't look at things that happened afterwards. That's not so in relation to whether there is a contract, now there must be here because they're employees or the terms of the contract, its scope.

PN446

The second place to go is Victoria University of Technology v Wilson at page 196 and that's paragraph 120 where the Supreme Court of Victoria said:

PN447

The law in this country is that the nature of the work which an employee is retained to perform at any point of time must be assessed by reference to the work performed at that point of time.

PN448

And that's material in a case like this where the evidence from the applicant and the respondent in respect of this group is that there has been quite a remarkable stability in the arrangements for a number of decades in terms of the work that they perform and the times of the day and the patterns in which they performed.

PN449

We also rely on Fishlock v The Campaign Palace, New South Wales Supreme Court, the passages are at 103, 114. We've given you the Pinpoint references so hopefully that all works. That case says:

PN450

It's permissible to have regard to post‑contractual conduct to (indistinct) contracts scope of application.

PN451

Now, here they're talking about the work to be performed and the hours. That's what shift work entails. Or you can look at post‑contractual conduct for that reason or to give meaning to descriptive but undefined terms. Now, here it's not in dispute that the roamers are constructor operatives or titled something similar, the question though is, 'Well, what does that mean and what are the terms of that engagement.'

PN452

The Helpman Shiner case is an interesting one, that's 2001. It's a UK case so it has only persuasive value but it's an interesting one because the appellant there had been engaged for over 20 years. His job description had never formally been reduced to writing and the Tribunal there, obviously there's a lot of similarity, if not - if they're not identical to the common laws of England and Australia in their development and the Tribunal said:

PN453

The only material available to identify what it was that he was obliged to do and to identify the obligations of the employer was the way in which the contract had been performed.

PN454

Now, that fits squarely with what the High Court of Australia said in CFMMEU v Personnel Contracting a few months ago. There are a number of passages, the pertinent comments are these Kiefel CJ, Keen J and Edelman J at paragraph 42:

PN455

A contract of employment may be partly oral and partly in writing or there may be cases where subsequent agreement or conduct effects a variation to the terms or gives rise to estoppel or a waiver, really different situations. In such cases it may be that the imposition by a putative employer of its work practices upon the putative employee manifests the employer's contractual right of control over the work situation; or a putative employee's acceptance of the exercise of power may show that the putative employer has been ceded the right -

PN456

- and I pause to say, 'The right' it's a legal right, to impose such practices and Gordon J says at 183:

PN457

Subsequent conduct may be admissible in specific circumstances for specific purposes to objectively determine the point at which the contract was formed.

PN458

Now, here it must have been around the year 2000 or thereabouts:

PN459

The contractual terms that were agreed or whether the contract has been varied or discharged.

PN460

And her Honour also said at paragraph 190 that:

PN461

Recourse to conduct, that is post‑contractual conduct, may be necessary to identify the point at which the contract was formed and the terms that were agreed.

PN462

And we've also given a reference which I won't go to, to White v Australian and New Zealand Theatres which is a much earlier High Court case but which supports everything that's said. Now, what all of that amounts to, Commissioner, is you're answering a question here about whether a group of employees, no one's suggesting there's something other than that, has been engaged or agreed to be a shift worker.

PN463

You don't have in evidence any written - putting aside Elvis, you don't have in evidence any written documents which govern their employment so I think one can easily infer particularly from the evidence that is there, that they're all employed the first time a very long time ago and as circumstances have developed and as the employment has changed, they haven't been given fresh written contracts.

PN464

But what happened in 2000 is obviously material in terms of the agreement that was struck and their patterns of work changing and here we are 20 or 22 years later asking you to determine were they at that point in time engaged as or did they agree to become shift workers within the meaning of a clause that is operative now.

PN465

So that's why this analysis is all relevant should you feel it necessary to go down this path, the answer to that question, in our submission, is that plainly the objective circumstances and you can only consider objective circumstances based on what the courts have said, is that all point to a term of an unwritten contract to the effect that the employees were engaged as or agreed to be shift workers.

PN466

Now, why do I say that? Seven reasons. One, because for decades there has been a consistent pattern of rostering to work shift work which has in fact been worked and the current rosters are set out at CB - that's case book tab 42. The second, there's some overlap here, is that that consistency has occurred since the year 2000 or thereabouts, it's a very long period of time. The third is that not only have they worked as shift workers but they have earnt all the way along the benefits that go with that form of work, penalties, et cetera.

PN467

Fourth, because the evidence shows that the agreement was to work such shift work and we understood until this morning that the union agreed heatedly about this, under a certified agreement that applied in 1990 which provided that rostered shifts are involuntary, that's an objective circumstance, it's a document. It had statutory effect. There can be no debate about what it says.

PN468

Fifth, because they have not been engaged, that is, the roamers have not been engaged as temporary shift workers under clause 15.4(c) of the Enterprise Agreement that's agreed and that's the only way, in our submission, that they could be engaged other than in accordance with the term that we say applies.

PN469

Sixth, contrary to the argument about them being volunteers, yes, they volunteered to get into the shift work but there has been no - and there has been no evidence of, not even a suggestion of, any episodic or other volunteering. This is not a case where you can look back and say there is a process here where somebody episodically that they're a day worker but episodically they volunteer and come on or off shift. There has been no evidence of that type and the absence of that evidence in our submission, speaks volumes.

PN470

The final, the seventh and final reason why we say looking at the objective circumstances, you can find that here there's such a contractual term, is that there is no sufficient evidence, certainly none on the balance of probabilities but really none at all to convince you that roamers have unilaterally opted out of shift work. Now, that would obviously run against a term that they are shift workers and obliged to work shift work but the evidence doesn't tell that story.

PN471

That's the contractual point. Now, the applicant says at paragraph 49 of their original submissions this:

PN472

None of the roamers agreed - agree that they agreed to become a shift worker.

PN473

They certainly agreed to undertake shift work and this is the big problem that's permeated this case. The next words:

PN474

They saw themselves as volunteers with the right to withdraw at any time.

PN475

You don't get any assistance from that. It runs counter to all of the decisions I've just mentioned including the High Court decision in Personnel Contracting.

PN476

So when one looks at the objective circumstances which I have mentioned and disregards the subjective, particularly the subjective that's been raised 22 years down the track and which happens to be expedient in the context of a change that has been proposed but is disliked, in our submission, you ought to accept that those terms of the contract are there and that's the seventh reason, excuse me, why question 1 ought to be answered in our favour.

PN477

The eighth and final reason, Commissioner, goes to paragraph 107 of the document that was provided this morning which reads:

PN478

A number of staff had withdrawn from shift work contrary to suggestions that it was permanent.

PN479

Now, this is - I appreciate there's repetition with some of what I've said earlier and so I won't make an extended submission. It is very surprising in light of all of the evidence that was led before you that the applicant would continue on with that submission but in any event what we say is as a matter of fact the evidence does not show that, it shows quite the opposite.

PN480

I'll now turn quickly to Mr Markoski who's the last of the roamers and who has a unique situation in that he's not like the other roamers, what might be described as a long term roamer employee, he's occupied that position more recently. The circumstances that fell out of the evidence were these. In May 2019 Mr Markoski was provided with the opportunity to do a job swab with an employee, Graham Doyle who had been working day and nightshifts as a roamer at that point for about 19 years.

PN481

So you'll recall the evidence uncontested and I think agreed was Mr Markoski - his position was redundant, he didn't wish to leave Telstra. He did a job swap with Mr Doyle who instead took the redundancy and Mr Markoski stayed on. Gorgievski at 18, paragraph 18 of his statement, said that job swap was approved on the basis that Mr Markoski would work 12 hour shifts and work according to the shift CTs roster.

PN482

Most importantly, Mr Markoski's own evidence was this, TCB312, he did a job swap with Mr Doyle and Mr Doyle's position and working arrangements are uncontroversial. He was a shift worker. That's at TCB312 also. He knew that Mr Doyle was a shift worker before he received his job swap letter. That's at PN3508, TCB312.

PN483

And prior to commencing the role, he had a discussion with Mr Gorgievksi which curiously was completely absent from his statement, no explanation for that, where Mr Gorgievski said to him, and this is at TCB313, 'You have to work 12‑hour, 15 minutes, 7 am to 7.15 and 7 pm to 7.15 am', and as I said, Mr Markoski didn't say anything about that in his evidence nor explain why he didn't include it.

PN484

And then the fact is that from 17 June he started working those 12 hour 15 minute shifts in accordance with the shift roster and that's at TCB317 - 313 and is confirmed again at 318. Now, we say a couple of things about Mr Markoski. The first is it's abundantly clear from an evidentiary perspective, that he came to be a roamer through a job swap with Mr Doyle that he was he sought that out first with Mr Ritchie and later by discussing with Mr Gorgievski.

PN485

Mr Gorgievski told him, paragraph 17 of Gorgievski's statement, in no uncertain terms what was involved in the job and as I mentioned earlier, Mr Gorgievski was not challenged on that evidence. It wasn't cross‑examined. It is unchallenged evidence that you should accept. And so that is more than enough, we say, for you to find that he was engaged or agreed to perform shift work by accepting those arrangements.

PN486

The applicant's point raised today is that a letter provided to Mr Markoski at around that time included a statement to the effect that the terms and conditions of his employment did not change. So let's accommodate that in the analysis. What effect does that have? Absent in the applicant's submission, in our submission, was any explanation as to the terms and conditions in Mr Markoski's original contract which were contravened or did change as a result of the job swap.

PN487

Now, it may not be tidy but when one looks at the contract, that is the underlying contract of Mr Markoski that's been put in evidence, what one finds is a contract that has telecomm sitting on the top of it, it's a different position, it's a much smaller amount of money, I think $22,000 or so but on - Mr Markoski was earning some time ago. It refers to an award which doesn't exist anymore, it terminated years ago, et cetera, et cetera.

PN488

So what effect does a subsequent letter have that says, 'Your terms and conditions are not going to change.' In our submission, that letter can easily be accommodated into the analysis when one has regard to the fact that the 2019 Enterprise Agreement in section 4 provides for the shift work arrangements which Mr Markoski is now working.

PN489

We don't need a contract to say what the agreement permits and I haven't given you a case reference for that but of course (indistinct) and many cases like it say that an agreement or an industrial instrument will sit side by side, doesn't need to be incorporated into the contract or form part of it in any way but that letter, Commissioner, changes nothing.

PN490

It is abundantly clear when you look at the factual matrix and read it together with the instrument that undeniably does cover Mr Markoski's employment, that he was engaged as or agreed, you don't really need to decide which, it only needs to be one of them, to work the arrangements that Mr Doyle worked and there is no contravention or violation of any document in having him to do so and none was alleged.

PN491

Commissioner, that then brings me to the P1 construction employees, who as you know, are a separate group to the roamers. The position as concerns them is that in around April 2019 Telstra made a decision that trainees accepting permanent or so that we don't get hung up on that word, ongoing roles, or existing employees accepting upgraded or promoted roles, would work what was described as a shift component. And you will find that evidence, Bazina at paragraph 16, court book 379. And that's uncontested that that was Telstra's wish.

PN492

Each of the P1 staff in these proceedings in our submission have accepted roles either after finishing their traineeship or as part of the job upgrade process accepted roles that carry with them an obligation to work a shift component, by which we mean they are not working shifts all of the time, but part of the job involves working shift work. Again, nothing unusual about that.

PN493

For those who participated in the job upgrade process, in addition to a range of discussions and two presentations that occurred, which referred in the clearest of terms – we will come back to this - clearest of terms to the requirement to work shift. You will recall – in fact, I will go to it now, you don't need to go to this, Commissioner, but you will recall at case book 628 – sorry, court book 628, there was a briefing on 5 June and there was a slide – a number of slides presented that had details about how to express interest et cetera. And there was a slide which said:

PN494

To ensure that we continue to be able to satisfy our customer expectation of a 24/7 network, each role will be established with a shift work component. This is in line with our requirement that all new roles include shift and allow us to have flexibility on when employees can work to appropriately cover the network.

PN495

You heard evidence that on 6 July 2021 there was a Q and A meeting to discuss queries that anyone would have about that. You heard evidence that the employees who were upgraded were also provided with FAQs, not all of them the FAQ document. I will come back to that, but they were provided with FAQs which referred to the shift requirement and critically, all of them were asked – and this is Bazina at paragraph 33 of this statement – during the job interview which occurred subsequent to the provision of those documents, if they understood that there would be a shift component, and that they indicated 'Yes', and it was made abundantly clear to them, 'Do not apply for these roles unless you are agreeable to that, because it is part of the job. This is part of what we are now doing.'

PN496

Now, critically, after accepted the positions, all of the employees regularly, about every four or five weeks performed the shift work – that is, they actually did it. They accepted the attendant committees and did so for over a year until the issue of the reduction of the shift length and the dissatisfaction with that emerged.

PN497

Now, without wishing to repeat it all, Commissioner, we rely on the argument that we made at the outset. P1 staff, just like the roamers, can only be shift workers under 15(a), because it is agreed that they are not shift workers under 15(e). The applicant submits, but we reject and you should reject that there is a third category of volunteer shift worker under 15(c), which means that there is only one category that could apply and that is 15(a).

PN498

Even if you are against us on that, we say this; that in any event when one looks at the evidence, the P1 staff were engaged to perform the shift work component, to perform some shift work within the meaning of 15.4, and they in fact did so. And, of course, that in itself is critical evidence. There is a reason they did so. It didn't emerge out of nowhere.

PN499

Now, what the applicant says is P1 could not be shift workers and there's two arguments made in support of that contention. One, because they were provided with contracts and the contracts do not use the term 'shift work' or 'permanent shift work' and also contain an entire agreement clause, which we said means you can't look outside the contract to determine what it is that these people do for a living and – I withdraw that - to understand what they agreed to do (indistinct) what they do do.

PN500

The second item that the applicant puts forward is that the FAQs on 9 June refers, in a third bullet point, to a letter of offer arriving confirming a requirement to work shift work and in the absence of that, they could not have agreed to perform shift work or be engaged as shift workers. And I want to address each of those two arguments.

PN501

Firstly, in relation to the contracts, all of which you will find behind tab 61 of the court book, it's true Commissioner – it's accurate that they don't refer explicitly to shift work. But here's the thing, they don't refer to any of the work to be performed by the P1 constructors. The contracts contain the title of the job and nothing more. They don't go so far, as some contracts do, but these ones don't, to expressly say what the basket of duties and responsibilities of the job are.

PN502

Rather, what the contracts do expressly do is in black and white refer to the hours of work provisions in section 4 of the enterprise agreement. And it will be no surprise to anyone that that is where the shift work provisions can be found. So it is unsustainable for the applicant to even suggest that the absence of the word shift work or permanent shift work in the contracts leads to a conclusion that these people could not have been engaged or agreed to be shift workers. It couldn't possibly mean that.

PN503

Secondly, and you can take, for example, Mr Hunt's contract at court book 803, schedule 1 of that contract, court book 810 refers to his position as constructor operative. It doesn't then go the next step and list what the duties and responsibilities of that position are. Now, the duties are those set out in his success profile. That's a helpful document, so far as it goes and, of course, duties that are lawfully directed et cetera by Telstra and what is then set against us is, 'Well, there is this entire agreement clause', and if you want an example of that, that's at court book 808, which provides, and I quote, 'This agreement and any attachments records the agreement between us.'

PN504

Now, Commissioner, let me explain why this argument about the entire agreement clause is totally misconceived. The entire agreement clause says:

PN505

This agreement and any attachments records the agreement between us.

PN506

Now, that can only be the agreement about what is covered or recorded in the contract, not aspects that are not recorded such as the duties and responsibilities of the constructor operative position. And the contract doesn't say – so it doesn't set out the duties and responsibilities, and it doesn't say that there is any particular or formal place to look. So what you need to do is look at the evidence.

PN507

Now, I just put to you proposition – a legal proposition that the entire agreement clause doesn't prevent you in any way from looking at other material in the way that the applicant would wish to prevent you, because it only records the agreement about matters covered in the contract, not matters which are not dealt with in the contract. Allsop J, in the Branir Pty Ltd v Owston Nominees - so that's the same Allsop J who was then a Federal Court judge and is now the Chief Justice said at paragraph 440, this is at page 457 of our case list and I quote:

PN508

Whilst 'entire agreement' clauses have sometimes received separate treatment as a genus, leading to an approach, as evidenced by the appellants' submissions here, that there is a rule of law related individually to them, it seems to me that they only reflect the epitome of the operation of the parole evidence rule. The parties -

PN509

This is the bit that matters,

PN510

The parties have merely expressly avowed that the totality of the contract, about the relevant subject matter –

PN511

They're the five words,

PN512

is to be found within the four corners of the document.

PN513

So you cannot look outside the contract at evidence, to the extent that the evidence goes to issues which are recorded in the contract, but the entire agreement clause says nothing about matters which are not dealt with in the contract and this is where the applicant's argument falls apart in our submission, because to that end you must here look elsewhere than to the contract to identify elements of the role. And there are three obvious places to look. Each of them are backed by authority, which I'm going to refer to.

PN514

The first, and most obvious place, to look is the enterprise agreement, which is referred to expressly in the contract. And expressly in the contract, under the hours of work clause, the contract refers to the enterprise agreement, which deals in section 4 with hours of work and most pertinently here, shift work.

PN515

So the contract and the agreement in our submission about how you interpret it, which we get to are in perfect harmony. The entire agreement clause argument goes nowhere. The second place to look, other than the enterprise agreement for elements of the role and the hours to be worked is the presentations, documents and discussions that preceded the signing of the contract. You are not restricted from considering that material - that material that was in evidence, based on the Branir decision. An entire agreement clause could conceivably prevent you from looking at that material, but not in the circumstances.

PN516

The third place to look, critically, is to what happened after the contracts were signed. And this seems to be something that the applicant does not address – does not see fit to address at all. Here, the shifts were allocated and worked and benefits conferred exactly as had been communicated that they would be to the P1 staff and are still worked to this day.

PN517

Now, I provided some authority earlier about post contractual conduct and its admissibility as evidence about what actually happened and, in our submission, what actually happened for over a year is very powerful evidence of what was agreed at the time and you can look at it in line with what all of those cases, including our own High Court has said because it is clear that the contracts that were provided to the P1 staff don't speak to all matters concerning the employment relationship.

PN518

And for that reason the entire agreement argument as I mentioned goes nowhere. So all of those three sources, what happened before the contract is signed, the contract itself and it's express reference to section 4 of the enterprise agreement and what happened for over a year after the contract was signed – contracts were signed, plural – all three sources provide compelling evidence that demonstrate that was what agreed or the terms of engagement of the P1 staff at that point were that a shift work component was part of the job.

PN519

And you will note, Commissioner, that I have been very careful in making these submissions to refer only to objective circumstances, because they are the train lines that the High Court has put us on. Only look at objective circumstances.

PN520

We also raise an alternative point, Commissioner, which arises from a term of the written contract, case book 804. You will see that each of the contracts contains a term which provides for changes to your role, which says that Telstra that change the duties and accountabilities of the role. And in our submission we don't need to address this or go anywhere near this far, but since the applicant has raised these contractual items, we've had cause to examine the contracts very carefully.

PN521

And what one sees is a provision that gives rise to an alternative argument that says that even if at some earlier point in time the P1 staff weren't engaged or did not agree to become shift workers, that does not mean that their role could not be changed within the meaning of that clause which I've pointed to to direct them to work in that way.

PN522

Now, in our submission, that is very much a peripheral argument mentioned more out of completeness than anything else, because by the most conventional contractual analysis, the entire agreement clause and the contractual argument that the applicant has put about the P1 staff, it really goes nowhere.

PN523

So that was the first point. The second point is that the terms of each of the contracts – and I'm using just by way of example here, Mr Hunt's contract, which is at court book 805. Each of them provides expressly, under the heading, 'The enterprise agreement', that the 2019 enterprise agreement contains terms and conditions that apply to the employee outside of the contract and they re to look to this document also.

PN524

And it further provides under the heading 'Hours of work', a few pages on, that if an employee wants to know their hours – so this is an employee looking at the contract that's been signed. If they want to know their hours, they are to look in section 4 of the 2019 agreement, the provision headed 'Hours of work and scheduling.' And, of course, it is in this section, particularly 15.4(a), that we find the concept of an employee being engaged or agreeing to perform shift work which is what we say here occurred in fact.

PN525

The third reason why the P1 construction staff are obligated to perform the shift work within the meaning of clause 15 is that the enterprise agreement in our submission establishes only two means by which an employee may become a shift worker. That is, engagement or agreement. And it can't be denied on the facts that P1 employees can be engaged to shift workers under 15.4(b) . That is engagement as distinct from agreement.

PN526

Now, the evidence again about what they did since they signed their contracts is that they have been working their shift work component exactly as they had been informed that they would be required to do. So against that factual background, and in light of what we've said about the contract, and the entire agreement clause, there is simply no need to say in the contract, 'You are a shift worker', or 'You are a permanent shift worker' for that to be the case. That is not how the contract - these contracts or indeed, based on the authorities, any contracts work.

PN527

Now, the third thing is this, Commissioner; we will all remember fondly, I'm sure, from contracts law days that there are five elements to a contract offer, acceptance, consideration, intention to create legal relations and formalities. The way that the argument is put here by the applicant suggests, but is wrong, that unless the contracts say in neon lights, 'You are a shift worker', or, 'You have been engaged as a shift worker', or, 'You agree to be a shift worker', or, 'You agree to be a permanent shift worker', some formulation like that, that they cannot be. And that raises to the level of a formality that is something can't happen unless the formality is observed that formulation. And we must make the obvious point, it's not a formality. There are different ways to engage someone. There are different ways that something can be agreed and it's not a formality here. And although the union hasn't put it that way, essentially that's what they're saying.

PN528

Unless you do it that way, then that's not what the contract can mean and there is really no support for that proposition. It's an expedient proposition, given the industrial outcome they wish to achieve, but it is not faithful to the contractual position.

PN529

I have this argument in square brackets, Commissioner, because I didn't know whether it would be raised, but it has been. The applicant said there was no proper roster for P1 employees and for that reason they could not be engaged or agreed to perform shift work. Now, I think the evidence was just incontrovertible on this. They are rostered. They are rostered in advance. The rosters are in evidence. So whatever one means by 'proper roster', we are only left to guess. That is something known only to the applicant. But the more important point is clause 15.4 of the enterprise agreement provides, and I quote:

PN530

Telstra may engage you as a shift worker if it regularly requires you to work outside the span of ordinary hours on Monday to Friday or to work regularly on weekends.

PN531

And there are no other requirements in the agreement or in the contract or anywhere else that need to be observed before a person may be engaged as a shift worker. So the idea that there needs to be a proper roster, whatever that may mean, is simply a false issue. If someone is regularly required to work outside the span on Monday to Friday or regularly on weekends, as we say P1 staff and, of course, roamers are required to do, that meets all of the requirements of the enterprise agreement and false issues should be discarded

PN532

the final point in relation to the P1 staff – the final legal point before I get to the evidence goes to this issue that the applicant raises that these staff could not be obliged to work a shift component, because their contracts don't use those words, or designate them as shift workers. I mentioned earlier why we say that the contract is, in fact, in harmony with the enterprise agreement. What does this argument really amount to? So what has been put to you is unless the contract says shift work or permanent shift work, there can't be a contract to perform that type of work, which is akin in our submission to saying that either the roamers or the constructors can't be required to perform maintenance, because the word 'maintenance' does not appear in their contracts. Commissioner, it makes no sense. It's really a false issue.

PN533

Now, I'm going to turn to the evidence and, of course, also address the argument about the FAQ document which was the second argument that the applicant raises and I will try to run through this as quickly as I can, but there are quite a few references. Mr Tannous, he was on a temporary shift arrangement under 15.4(4) until he received a promotion and commenced working a shift component, at which point he received – he commenced to receive a higher salary and the shift penalties, but not the allowance.

PN534

Now, the question for you, Commissioner, is was Mr Tannous engaged as or did he agree to be a shift worker? We say yes. Why? TCB298. So this is the evidence. He couldn't remember either way whether he attended the briefings where the requirement to work shift work was presented. The evidence is he was invited, but he couldn't remember whether he participated.

PN535

TCB300, he looked at the FAQ document, Then I think most critically, he understood from his meeting with Bazina and Davis, that if he got the upgrade he would continue working shift and that's at TCB301 and, again, at TCB303, and again at TCB304, and against at TCB305 and 306. That all fell out of the cross-examination. He knew, incontrovertibly, that if he accepted the position, he would have to continue to work a shift component. In fairness to him, he was not clear on precisely what that entailed, but that is of no moment when one looks at the requirements in 15 – in clause 15 and, in particular, 15.4(a).

PN536

He also said and there is no real explanation for the basis for this, in his evidence that he regards himself as a temporary shift worker, that's at TCB306. That's a classic example of a subjective understanding or characterisation. The High Court tells us time and time again, 'Don't look at that evidence. It's not the labels, it's the facts.' So what does Mr Tannous' evidence all amount to? He admits he was told in discussions he would have to work the shift component as part of the upgraded role. And that is his job. He says he thought ,because he was working as a temporary shift worker, because receiving the upgraded job, that he was still a temporary shift worker afterwards, even though he didn't receive the attendant allowance. But given an explanation for that, which concerns a discussion with Bazina that HR didn't like him submitting these forms for the allowance.

PN537

That didn't make a lot of sense, because the cross-examination established at TCB305 that the process for Mr Tannous and all P1 is they log their hours, they submit their forms and employment occurs automatically from there. Mr Bazina doesn't intervene. He's not involved in any way. Now, we understand Mr Tannous' evidence that he was confused about aspects of his job, but at the end of the day when we look at the evidence, it's quite clear what Mr Tannous' position is, apropos the shift work component.

PN538

For completeness, Mr Bazina said in his evidence he was surprised that Mr Tannous was confused, given their discussions about the permanent shift components, so he had a different take on it. And also that Mr Tannous worked the shift component for over a year and continued to do so. In our submission that all points to Mr Tannous being engaged or agreeing to work the shift component within the clause 15.

PN539

Can I then turn to Mr Clancy. His written statement was very short and apart from attaching a number of documents it did not say much. His main point at paragraph 6 of his statement at court book 242, was to say that on 5 June when the expression of interest was advertised, the requirement to work the shift work was not noted in the EOI and he applied for the job on that basis.

PN540

Mr Clancy's evidence, though, in its brevity left out many critical events which we flushed out given it fell upon us and the deficiency of the statement, to bring out in cross-examination and those matters were these. TCB 113, he couldn't recall whether he went to the 5 June briefing and that contained the slide that read out earlier about you must perform the shift work component. He could not recall but believed he did, that was his evidence.

PN541

TCB 115, in relation to that slide each role will be established with a shift work component. I put that to him and he said, 'Well, I expected to see that in the expression of interest form', because in his view that was the official document. That was his word. That was the official document. When you look at the totality of the evidence, Commissioner, that slide pack had the details about expressing interest in it. The same slide pack that had the provision that you must agree to work the shift work component.

PN542

So whatever Mr Clancy thought in his own mind, there was no basis to form the conclusion that he formed and there's certainly no legal basis for him to provide for a subjective hierarchy of documents where the EOI is the only document to which you should look. He agreed at TCB 196 that he knew there was a shift work component to the role and also that he had worked shift work every four or five weeks.

PN543

In relation to the FAQ document which was received after the 5 June briefing which he's attached to his statement, I asked him about that and I asked him about whether he was clear that he had to work a shift work component and he said not clear but there was definitely a component that was added to it, yes. He then concedes that after that, TCB 201, he was told during his interview for the operative role that he would have to work shifts as part of the role.

PN544

Later when cross-examined about the briefings and the 6 July Microsoft Teams meeting, he said he didn't remember, it was two years ago. When I asked him, 'Well, why aren't all these briefings and discussions mentioned somewhere in your statement so that you can give a full account?' His answer was, 'The EOI was the only document that mattered', and then said, 'Sorry, I can't answer that question.' That's TCB 201.

PN545

Our submission is the obvious one. One doesn't airbrush out of the factual matrix all of these events and say there was one document that mattered and that's all I took into account. There's just no basis for that to have occurred. The highest his evidence went, TCB 202, was I asked him in cross-examination, 'You understood from all of those events, including the interview, that you would have to work some shifts. Yes or no?' And his answer was, 'What that entailed, I wasn't sure but, yes.'

PN546

In our submission, more than enough having regard to clause 15. Then at TCB 206, after signing the contract shortly thereafter he started working the shift component, we say as had been agreed. He then gives evidence, TCB 212, that he did not tell Mr Dwyer when his statement was being prepared, about the 5 June briefing or the 6 July briefing, but he did tell him about the interview where he was told by Bazina and Davis, that he would have to work a shift work component.

PN547

Again, inexplicable to us why that conversation would not feature in his statement in those circumstances. Then there were some objections from Mr Dwyer and cross-examination ended. All in all, Commissioner, we say Mr Clancy's evidence did not advance the applicant's case at all. He knew about the shift component requirement before signing the contract. He signed the contract, he worked the shifts he was being paid for.

PN548

Ex post facto, he says, 'I wasn't engaged correctly.' That evidence, to the extent that him saying that is evidence, and his assumption on the specific point of the expression of interest form for obvious reasons doesn't take the applicant's case anywhere. You've got to look at everything, not a bit of evidence. Everything that's objective, that is.

PN549

Johnson, he's a P1 constructor who joined South East Construction after successfully completing his traineeship. His evidence was TCB 218. He asked a question of Telstra's HR, this is exhibit A6, 'Are we classed as a shift worker?' The answer he received was, 'Yes.' He said, TCB 220, that he attended the 5 June Microsoft Teams briefing with the slide pack that I read from. I put the slide to him. TCB 221, and he said he understood there would be shift work involved if he accepted a job.

PN550

He also said, TCB 221, that he did not see the FAQ document that the applicant has relied on. He missed that email and did not see that document until late 2021 which of course at which point he had been working the shift component for an extended period of time. But he conceded in cross-examination, TCB 223, that during his job interview with Bazina and Davis he was informed there would be a shift component to the role but said he wasn't sure exactly what that entailed.

PN551

At TCB 223 he had no explanation for why these events were not referred to in his witness statement which we don't blame Mr Johnson for, he's not a lawyer. At TCB 226, he conceded that he understood he would be assisting on the weekend shift every four weeks. At TCB 228 I asked him about not being given the proposed flexibility agreement in time, and asked him, 'Well, what does that mean and why does that matter?' And he said frankly and honestly, 'I don't know.'

PN552

We say, Commissioner, Mr Clancy's evidence did not advance the applicant's case at all. In fact, it damaged it. The witness statement obviously was deficient, key events missing. But when we cross-examined him about those events, Mr Johnson was honest and readily made admissions that he knew what his job entailed and a case in point about the FAQ document, admitted that he hadn't even read it.

PN553

Cameron Hunt who was also a trainee, then a constructor, his evidence confirms in large part with Mr Johnson's. Mr Hunt's evidence was this, TCB 235, he couldn't remember the 5 June 2020 briefing but he did receive the invite. TCB 236 he couldn't recall the 6 July briefing. TCB 236, he did recall the interview with Bazina and Davis and being told that there would be a shift component.

PN554

He then says at TCB 236 he accepted his contract and started working a shift work component once every four or five weeks for one year. I asked him, 'Who suggested to you that you are not obligated to work a shift work component?' He said it could have been one of his colleagues or it could have been the union. That's at TCB 238.

PN555

He also didn't know why a flexibility agreement was needed other than to say it's a more official thing than a Microsoft Teams calendar which the employees used for rostering, TCB 239. I repeat what I said about Mr Johnson's evidence, that that evidence did not assist the applicant in any way.

PN556

I now turn to what Mr Bazina said and make the same prefatory comment that I made earlier in relation to Mr Gorgievski and Mr Standish which is that there were large parts of their statements which were not challenged at all and you'll recall, Commissioner, that there were directions post the filing of Telstra statements for the applicant to put on any statements in reply if it wished to challenge facts in those statements.

PN557

They did not put on any such statements, nor did they challenge large parts of the evidence, some of which I will refer to now, in cross-examination. What that leaves you with, Commissioner, is unchallenged or uncontested evidence which there is every reason to accept and no reason not to accept. Mr Bazina gave evidence in his statement about the process of engaging or upgrading each of the P1 constructor employees.

PN558

Now, telling in Mr Bazina's cross-examination by Mr Dwyer, in our submission, was how often he indicated or simply said expressly that he was confused by the question and, with respect, it's apparent when you read the transcript why that is so. In any event, Mr Bazina's evidence was this, TCB 366, the question was:

PN559

They were never told they were going to become shift workers?

PN560

The answer was:

PN561

What do you mean they weren't told? I thought they were told.

PN562

TCB 366, it was put to him that he used the word 'permanent' in his statement 15 times and the staff were not told they were going to be permanent shift workers. Mr Bazina said:

PN563

Well, like I was saying, Mr Dwyer, there was a temporary shift situation going on with a couple of staff –

PN564

which you know, Commissioner, to be Marshall and Tannous, and I'll continue the quote –

PN565

and then there was the shift part, and I see shift as permanent, you know, opposite to temporary.

PN566

I may say that Mr Bazina in that exchange has put in layman's terms what we say in relation to our primary argument which is you either have a shift worker which Bazina says, 'permanent, you know, opposite to temporary'. He's then asked questions about whether people can be forced to work shift work or whether they are volunteers and he says at TCB 371:

PN567

Yes, we can upgrade people on shift work, absolutely.

PN568

Of course that's right. I'm interpolating here, Commissioner, but of course any employer can say to an employee, 'I will upgrade your role', or, 'I will give you a different job but here's what comes with it.' It's then a matter for acceptance or rejection but if there's agreement, the job is the job. There's then a few pages of cross-examination about Mr Bazina – sorry, about not using the word, 'permanent' and Mr Bazina says in some frustration at TCB 372:

PN569

Like I was saying, a C shift is permanent, temporary shift as non-permanent.

PN570

With respect to him, Commissioner, Mr Bazina cut through a lot of the legal debate that we've been forced to have because they are the two categories of shift worker under clause 15.

PN571

Can I quickly address the FAQ document and you'll recall, Commissioner, that that document had the three bullet points that addressed shift work, two of which made it very clear don't bother applying for an upgrade – these are my words – unless you are willing to work the shift work component. Then there's the reference to the letter of offer confirming the shift work.

PN572

What we say, Commissioner, is that when you look at the totality of the objective evidence having regard to the evidence for the reasons I gave earlier before the signing of the contract and after signing of the contract, the factual matrix and the legal conclusions to be drawn from it here, are very clear. I come back to my point about contract formalities.

PN573

You cannot take from that FAQ document that absent some letter of offer using particular words, a contract formality has not been observed such that there is no contract. Other than that, if you take the 20,000 foot view of what's gone on here, which we do have – we all have the privilege of doing because this is not a dispute that arose one week after these contracts were signed. It's over one year after the contracts were signed.

PN574

To go back in the context of an industrial dispute to an FAQ document which was one atom in the universe of facts and say, 'Aha, look at that, there are some words that we didn't get, therefore, we could not possibly have agreed to have been engaged as shift workers', ought to be seen plainly as what it is, which is an ex post facto justification to try to advance the applicant's case.

PN575

But as a matter of fact, Commissioner, that point should not resonate with you at all. These employees did work the shifts as engaged or agreed and the applicant has said nothing about that. How could that possibly be so, otherwise?

PN576

Commissioner, I think I've hit my 70 minutes but the next two parts will actually be quite quick because in our submission the next two questions, questions 2 and 3, are purely construction questions and I think from here I can finish quite quickly.

PN577

Commissioner, for all of those reasons we say question 1 ought to be answered in our favour. There's a short route to do that or there's a long route which involves pouring through all of the evidence as we have tried to do to assist you. It's a matter for you where you go with that but, in our submission, keeping things simple is probably preferable but that is a matter for the decision-maker.

PN578

In relation to question 2, that question is this, whether the absence of reference to permanent in clause 15.4 of the enterprise agreement means – so this is a question about meaning – means that an employee who is engaged as a shift worker or who has agreed to be a shift worker, has a right to unilaterally change their status and cease to be a shift worker. The applicant has this morning asked you to make an assumption about the question which you should not make, and that's at paragraph 138 of the document, where they say:

PN579

We put aside a situation where a worker has clearly and unambiguously been engaged as a shift worker through a contract.

PN580

I may have mentioned this in my opening, you couldn't possibly put that to one side because they are asking you to construe an enterprise agreement and take as a premise that a person, one of the premises is a person has agreed to become a shift worker. So what they're saying to you is take that as read when you are interpreting clause 15. But now they say to you at 138, but put aside a situation where someone is engaged as a shift worker through a contract.

PN581

That is impermissible and of course why would you do that? It's a premise of the question. The reason that the applicant puts that in their submission today, in our submission, is clear, because question 2 was arrived at on day 1, in circumstances where their 15.4(c) argument didn't get any traction, and I've taken you to the reference for that and it didn't get any traction for the most obvious reasons, it's a hopeless argument.

PN582

What they said was, well, 15.4 doesn't say permanent, so 15.4(a) must also be referring to essentially not permanent, non-permanent, temporary. But in analysing that question, we want you to put aside a situation where someone is engaged through a contract. Now, apart from it being a premise this case certainly at least as concerns P1 staff, concerns employees who have a written contract.

PN583

So why would the applicant ask you to put aside a situation where someone is engaged through a contract? In any event, what we say about that is question 2 is purely a question of construction and the applicant's argument that the absence of the reference to the word, 'permanent', in 15.4(a) does not mean that an employee who you find to be either engaged as a shift worker or who has agreed to be a shift worker, can unilaterally change their status.

PN584

Why do we say that? First, I'm sorry for the repetition, the categories of shift worker contained in this enterprise agreement are clear and there is only two of them. 15.4(a), a shift worker or 15.4(c), a temporary, or because it's used in the clause, volunteer shift worker. There are no other – I'm sorry, 15.4(e), there are no other categories. It's that simple.

PN585

A 15.4(e) temporary shift worker of course can go back to day work or whatever their pre shift work arrangement was if that temporary shift work arrangement ends in accordance with the requirements of the clause which are there for all of us to read. Secondly, clause 15.4(e)(iii) of the enterprise agreement gives temporary shift worker a right to opt out of temporary arrangements.

PN586

There is no such facility provided for shift workers who have not agreed to perform shift work temporarily on the basis of 15.4(e). Let's just think for a moment about what the applicant is seriously putting to you as a question of construction. You have 15.4(e) which makes provision as between Telstra and a number of unions and thousands of employees for temporary shift work which says that that shift work can only occur in certain circumstances, it can only occur temporarily on a temporary basis, and it can only occur to fill vacancies on a shift roster.

PN587

But also as a matter of construction because 15.4(a) doesn't contain the word, 'permanent', Telstra can engage a shift worker under 15.4(a) and they can unilaterally change their status such that they cease to become a shift worker at any time. So forget about 15.4(e)(iii) and the opting out of temporary shift arrangements on a quarterly basis, under 15.4(a) it can be done if the applicant is correct at the flick of a switch.

PN588

So the drafters of this agreement drafted a document, it is suggested to you, where they provide for temporary, that is temporary as distinct to permanent shift work in 15.4(a) that has no limitations, it doesn't have to be performing shift work, vacancy on a roster. It doesn't have to be on a temporary basis. Either party can withdraw at any time rather than quarterly. So it's unrestricted in all aspects of the literal meaning of the word. That's what 15.4(a) does.

PN589

But they also agreed to 15.4(e). Commissioner, why would anybody do that? Why would you have all of these restrictions and limitations in 15.4(e) if what can be done under 15.4(e), that is shift work on a, whether it's temporary, permanent, volunteer, whatever it is basis under 15.4(a) and that could be turned off at the flick of a switch? That quite plainly is not the scheme.

PN590

It would give 15.4(e) no work to do. It offends Berry and we've given you the reference, paragraph 114, which contains all the normal principles about reading the provisions of the agreement as a whole, giving them work to do, giving sensible interpretations that don't lead to silly consequences.

PN591

When we talk about I think the legal language is absurd or capricious consequences, if 15.4(a) has the interpretation that is suggested in question 2, that is there's no use of the word, 'permanent', so if someone's engaged or agrees to be a shift worker under (a) they're not permanently so as a matter of construction of the agreement, think about that in the context of an organisation that employs shift workers to maintain and construct a telecommunications network on which millions of people rely and who could be engaged under (a) in circumstances where they could flick that shift work off with a switch.

PN592

It is utterly inconceivable. That is an absurd consequence of the interpretation that is being put forward. And, fourth, if that argument is right and we're dealing still with the absurdity of it, there is no facility in this agreement for an organisation like Telstra to have permanent shift work. That is, as a matter of construction under 15.4(a) someone engaged under that provision can flick the switch at any time and stop working the shift work.

PN593

That doesn't make any sense and there is no room in any of the accepted principles of interpretation, this is reason number five, to simply do what the applicant is asking you to do, which is let's just imagine that the clause of an enterprise agreement contains a word, 15.4(a), and the word is, 'permanent', and then say, well, it could have included that word but because it doesn't include that word, then that must mean something.

PN594

One can read paragraph 114 of Berry in the case book and there is no reference anywhere to that kind of canon of interpretation. There's no room for it. This is just imagination. It is conceivable, Commissioner, and I'll give you an example to make good the point, let's say that in the predecessor to this agreement there was an equivalent of 15.4(a) and it did include the word, 'permanent'.

PN595

That would raise a legitimate question of interpretation. Well, that word was there and now we've got an identical provision but it omits the word. There may be some meaning behind the omission of the word. That's a legitimate search for purpose where a provision has changed. Similar to that conducted with statutory interpretation. But the applicant points to no such provision. It's not like this clause has devolved in a way that there was a provision for only permanent shift work but the word was taken away.

PN596

What they're asking you to do is imagine it and then say, well, because it's not there we can draw meaning from that. As I say, Commissioner, there is no room in any of the hundreds of cases that concern agreement interpretation but we only need to look at Berry, for that kind of analysis and no precedent has been cited for it.

PN597

I'll move to the third and final question which is whether clause 22 of the agreement requires a group flexibility agreement to be entered into in order for an employee to be required to work shifts in excess of 10 hours. Commissioner, our argument on that is it obviously doesn't require a group flexibility agreement. Let me explain why. Can I ask you, please, to go to clause 22 of the enterprise agreement?

PN598

THE COMMISSIONER: Thank you, Mr Tamvakologos, I'm there.

PN599

MR TAMVAKOLOGOS: I draw your attention, Commissioner, to the first two provisions. Sometimes within a group, a work group, Telstra or employees may want to vary the effect of the term of this agreement. Now, that's critical because that's what a GFA does, GFA short-hand. It varies the effect of the term of the agreement. Which term? That's addressed in 22.2. The days of the week on which ordinary hours are performed. Ordinary hours. (b), the number of ordinary hours worked each day. And, (c), critically, the span of hours.

PN600

If we just pause there and flick back to clause 15.4 and, in particular, (b), which contains relevantly perhaps the most important provisions in all of this, that's 15.4(a) and (b), (b) provides:

PN601

Telstra may engage you as a shift worker if it regularly requires you to work –

PN602

and here's the important part –

PN603

outside the span of ordinary hours –

PN604

outside the span of ordinary hours –

PN605

on Monday to Friday or –

PN606

disjunctive –

PN607

to work regularly on weekends.

PN608

In order to be a shift worker in the first place, you have to be working outside the span of ordinary hours on a weekday or to work regularly on weekends. When we switch back to clause 22, and I'm sorry about the switching, clause 22.2 is about varying the effect of an agreement so that you change the days of the week on which ordinary hours of work are performed, the number of ordinary hours and the span.

PN609

Why would a shift worker, why would Telstra or a shift worker or both, ever make an agreement to change the ordinary hours or to change the span of hours – span means the hours within which ordinary hours are worked, for example, in this agreement for most 7 am to 7 pm. By definition a shift worker is working outside the span of hours.

PN610

It's a nonsense to say you need a GFA to be a shift worker in circumstances where if what the applicant suggests occurred and the span was varied by a GFA so that a person worked wholly ordinary hours inside the span, they could never meet the definition of a shift worker. But the two are utterly exclusive of each other and that makes sense, Commissioner, when one looks at two things.

PN611

Firstly, 22.3 which refers expressly to the extended shift arrangement guidelines in appendix D, and also 22.6 which provides that a GFA overrides the effect of other terms of the agreement to the extent of any inconsistency, with the exception of the extended shift arrangement guidelines referred to in 15.4(g).

PN612

How the applicant arrives at a construction which says you need a GFA in circumstances where 15.4 in its terms says you can only be a shift worker when you're working outside the span or on weekends, and then in 22.3 and 22.6 expressly accepts extended shift arrangements made relevantly under the shift guidelines in appendix D which we have been operating under all along and which the union has been right about this, find their genesis in the 1990 shift operations agreement.

PN613

What clause 22 is saying is if you need to vary the effects of an agreement you can use it on a group basis, you can use it a GFA. Of course it can be done individually under an IFA. But you don't need to do that if you're in the extended shift category under clause 15, hence the exception. One doesn't need a GFA if one is under the guidelines and has the exception. That's the point.

PN614

With respect, Commissioner, the applicant's argument is right upside down on this one. There's two other points. With respect to shift workers one can ask the rhetorical question what exactly is it that a GFA will achieve. There's no need to perform shift work as defined in clause 15 to change the days of the week on which ordinary hours are performed, so that's one of the variations you can make under 22(a).

PN615

There's no need to change the number of ordinary hours worked each day because clause 15.5(2)(f) provides that an employee won't be required to work more than 10 ordinary hours in a day unless (g) and the extended shift arrangements apply. In other words, the concept of how many ordinary hours are worked and how extended a shift is, is catered for in clause 15.

PN616

Finally, 22.2(c), why would you vary the effect of the span of hours in the agreement when for the reasons I gave earlier by definition a shift worker works outside the span? You don't need to vary them. In fact, if you vary them they're not a shift worker.

PN617

The other aspect is a more practical one which is clause 22.8 which provides that, 'If you', – that is the employee – agrees under a GFA to change the days of the week on which they perform ordinary hours on Saturday or Sunday, Telstra will pay additional amounts, but no overtime or penalty rates. That does not sit at all with the express and complete arrangements made for payment of shift work including on Saturdays and Sundays in 15.4(f) of the agreement.

PN618

You have a situation where there's three dimensions to this question. One, if there's a GFA probably to vary the effects of things like span of hours, you probably can't have a shift worker as defined. That doesn't make any sense. (b), a GFA, having regard to the matters that can be varied by a GFA isn't needed because of the terms of clause 15 read together with appendix D.

PN619

And, (c), we've heard nothing from the applicant as to how payment for their members would work under 22.8 in circumstances where presumably they wouldn't be getting both payment under 23.8 and payment under 15.4(f) and, in fact, that would be impossible because of the variation of the span, et cetera.

PN620

Commissioner, the argument simply hasn't been thought through and with respect, it's nonsensical and repugnant to the canons of construction and the specific provisions in clause 15, appendix D and 22. Subject to anything in reply, if I'm given that indulgence, they are our submissions.

PN621

THE COMMISSIONER: Thank you, Mr Tamvakologos. Mr Dwyer, anything that you wish to say at this point?

PN622

MR DWYER: Sorry, Commissioner, just turning the microphone on. Yes, just a few matters in reply. I can probably cover them in a more general way and so I don't need to repeat myself. What we're asking you to do here in question 1 is to determine whether the staff have been engaged as shift workers or have agreed to become shift workers. I've used that term deliberately in my original submissions and repeat it.

PN623

We're talking about a shift worker, engaged to be a shift worker or agreed to become a shift worker. What the submissions of Telstra are, that we just have to completely ignore the facts and the situation of clause 15.4(c). I went through that. We say the facts which can't be ignored, the facts are they volunteered to undertake shift work and that clause deliberately uses a different word, non-shift workers were asked to undertake shift work. Shift work.

PN624

Those words have to be given some work to do. They're not there to fill in the spaces. You'll notice in some of the cases that my learned friend has referred to, and the case, the (indistinct) case, for example, paragraph 28:

PN625

As a general proposition it would be correct to say that in interpreting an instrument, be it a statute or an enterprise agreement, one should strive to give meaning and effect to each of its terms. We are not at liberty to consider any word or sentence as superfluous or insignificant. All words must prima facie be given some meaning in effect.

PN626

Those words are there. The fact situation is there. It meets those words and we say that you should find that they were not engaged as shift workers but that they were non-shift workers who undertook shift work at the request of Telstra.

PN627

My friend has talked about two categories, a shift worker engaged or hired as a shift worker, or, (e) under clause 15.4(e), a temporary shift worker. I dealt with temporary shift workers in my submissions, I won't go back over them. We say there is also the category of day worker and that's in clause 22.4(c).

PN628

The other point that we slide over in the submissions or have been which my friend has slid over in his submissions, is the words which became interchangeable in his view, is, shift worker, shift work and shift component. We say they're three different terms and to be given different meanings, which is basically I suppose repeating what I've just said before. They undertook to do shift work.

PN629

I'll have to come back to that point I'm just looking at. So the question that we talked about onus before, the onus in fact is – there is an onus on Telstra and one onus on Telstra is they have to demonstrate these people were engaged as shift workers or agreed to become shift workers. Despite the long submissions there's no real punchline in there to say where was the point of engagement?

PN630

This is it, the engagement. They did not accept it. They basically need to overturn the submission that they were engaged to undertake shift work. Where is the punchline that this is the point of engagement? There is no contract there which says in simple terms, you know, clause 2, you know, we're engaging you as a shift worker at all. It's an important point. It must be in a contract of employment because simply calling up the EBA doesn't make them a shift worker.

PN631

I'll just repeat that. Simply calling up the EBA doesn't make you a shift worker. Once you call up the EBA we're back to the beginning again. We still have to determine if we've been engaged as a shift worker. That's all the EBA does. That's one thing that can happen is you can be not only bound by all the terms of the agreement but there could be some extra things here if you are engaged as a shift worker, it all follows.

PN632

We would submit that the Commission hasn't heard the nice clear statement indicating that people have been engaged as shift workers and the point at which they were engaged and when they were engaged. It's something important in the EBA because people cannot be forced to undertake shift work or extended shifts.

PN633

My friend addressed this issue with the additional hours, additional shifts and whether they're voluntary or not. This is misconstrued, in my submission. The issue of additional shifts that we – I want to take you to the transcript of Mr Evans at PN4048, and while I can read it there, I'll paraphrase it. The questions I put to him is, 'What is working an additional shift?' – the words are – 'working additional shifts beyond those rostered will be voluntary.'

PN634

Well people are rostered to work 36 and three-quarters hours a week which is the Telstra standard. That's their roster. The EBA provides that reasonable overtime can be required by Telstra. In addition to the 36 and three-quarter hours, they can be asked to undertake reasonable overtime. In those cases, as long as it's reasonable, it's mandatory.

PN635

This clause with 12-hour shift workers removes that mandatory requirement. It says, 'working additional hours beyond those rostered will be voluntary'. Now, the staff are rostered 36 and three-quarter hours a week on average, or 73.5 hours a fortnight I think is the time each fortnight. I asked Mr Evans to clarify, to confirm that that was his understanding and in my submission he does. In the transcript at 4015 I said:

PN636

Yes, so they're still shift workers doing an additional shift. If they've done three nights and for whatever reason they're asked to do another shift?‑‑‑Yes, most likely would probably – would be overtime.

PN637

That would be because they exceeded the number of 73.5 hours in a fortnight over the cycle?

PN638

Answer, 'Yes'. So the reference to additional shifts here is nothing to do with volunteering to do shift work or not. The reference to additional shifts here is a reference to whether you can refuse to do overtime in the circumstances of a 12-hour shift agreement. The whole argument raised by the witness must be put aside. It's very clearly, in my submission, very clearly just an overtime issue once you've completed your reasonable shifts or the shifts to fill in your hours for the fortnight.

PN639

The evidence of Mr Douroukis, that gave me concern. We don't rely on it and we suggest you should not rely on it. I reject his suggestion that I've done anything that was not proper in my role as the advocate and lawyer. This is obviously not the forum to do it but I just wish to mention that point at this stage, that we conducted ourselves the way we should have been conducted.

PN640

The next issue is the roamers have no contracts. Once again, we heard submissions there about whether there's no contracts. We look to the factual situation and the factual situation is this, that while there was no contract they were covered by at that time to at least two agreements. One 12-hour shift agreements and one, another general agreement covering fair work.

PN641

As time moved on they're now covered by the single enterprise agreement. The EBA is in play. The factual situation still meets the new clause 15.4(c), that is they volunteered back then to undertake shift work. There's the evidence which you went through. The evidence showed no one being told you were a permanent shift worker. There's no evidence people were told they were being a permanent shift worker or that they were being a shift worker. It's still a question, if they weren't engaged back in 2000, they're not engaged now. They're not engaged now if they weren't engaged back in the year 2000.

PN642

Mr Markoski – if you read the cross-examination of Mr Gorgievski at PN4615, we were discussing there what was said by Mr Ritchie to Mr Markoski, not what was said to Gorgievski. Mr Markoski said he was not party to the conversation between Markoski and Ritchie. Paragraph 9 Markoski makes the statement, Ritchie was never called to rebut the statement. So the statement at paragraph 9 is unrebutted and stands. Paragraph 9 in the evidence of Mr Markoski.

PN643

We turn then to the P1 construction table. They were asked to do a shift component, my friend correctly stated it that way, they were asked to do a shift component. They were not asked to become shift workers. This was under the 2019 agreement. They were not asked to become shift workers.

PN644

Indeed, we invited you to look at the extrinsic evidence despite the fact that there was a no compete contract clause in existence, and we've read through a number of documents which were set out in the submissions this morning, including the FAQ and if you'll recall the FAQ said we'd be notified in writing about shift work, and that a letter would be provided. Of course the evidence was none of those things were provided.

PN645

There was no trigger, there was nothing there which you could point to which would say they were engaged as shift workers. Even the word shift component leaves us with some doubt as to what was intended by people using those terms and why they deliberately stayed away from using the word, 'shift worker'.

PN646

The submissions again that P1 construction put on and no doubt (indistinct) are covered by the EBA and the EBA's shift work provisions, just takes us back to the beginning. It doesn't – the very fact that you work under an EBA doesn't make you a shift worker. There's a precondition, you must be engaged or have agreed to be a shift worker.

PN647

There's no evidence of that anywhere, we just keep going back to the same place. To paraphrase the dispute in P1 construction area, we did this earlier but just to remind you, it's been misrepresented here. The dispute is not about the current arrangements. The dispute has arisen because Telstra now wants to put them onto night shifts Monday to Friday. That was the trigger for this disagreement. Not an argument over what their current arrangements are, and no challenge to that.

PN648

The question is Telstra is now saying but once you agreed to perform the shift component, which you've been doing for a year or so, we now want to change that now to – so that you become a shift worker. Well, we say the provisions are very clear in the agreement, we cannot be forced to become a shift worker.

PN649

To answer the question 2, to clarify what we've put to you this morning which I'm possibly at fault there in the way I go about it, but what we were saying or what I've said this morning is this. The clause is there. If you were engaged, you know, clearly, unambiguously to put at the highest, as a shift worker, your employment contract stated you were a shift worker and you were engaged as a shift worker, something like that.

PN650

We're saying that's not a matter we're asking you to decide today. We need to see a contract on it. Well, we don't have contracts like that before you. If I saw a contract and asked about that and it said those words, my response would almost certainly that you can't unilaterally withdraw from that contract, it's part of your employment contract that you've been engaged as a shift worker.

PN651

But we don't have that sort of nice clear situation before us. What we have is an argument that somehow or other people have become engaged without contract provisions, without a change in the contract, and with we of course say people haven't been engaged as shift workers but people have undertaken shift work as non-shift workers.

PN652

Despite the subjective views of a number of people in the witness box, there appears to be nothing in that situation to prevent a person from unilaterally withdrawing from shift work which was a voluntary situation and remained a voluntary situation.

PN653

Finally at question 3, we obviously completely read clause 22.3 and 22.6 differently. Why are words needed about extended shift work arrangements, why are they needed in the clause? Well, we say they're needed because it anticipates that you're moving way outside of the general terms of the agreement in terms of span of hours and ordinary hours and days of the week that are being worked.

PN654

For example, the P1 staff are working mostly day shift as we put to you and work one shift every four, five, six weeks. Work one 12-hour shift every four, five or six weeks outside Monday to Friday. Well, that's where we say that's the very thing that would require a group flexibility agreement.

PN655

We say a group one is needed because it generally involves a number of people having to agree to work in a rotating manner when they negotiate these shift arrangements. Otherwise, what work – again those provisions, we accept it's provided for in the standard shift arrangements in (d). Well, the span of hours of these shifts at the moment are 12 hours and 15 minutes for a shift worker. That's more than the day workers' span of hours, at least for the roamers.

PN656

Some shifts done by P1 also run 12 hours and 15 minutes. Again, that's outside the span of hours. And the number of ordinary hours per day, up to 10 hours, they're working 12 hours and 12 hours 15 minutes shifts. These are the very things that we would expect that an agreement to be reached as to what I call the meets and bounds of whatever the agreement is. What is the agreement that provides for flexibility to move outside the general provisions and guidelines?

PN657

We say it couldn't possibly be interpreted other than to say that they're there to facilitate a group flexibility agreement where extended shift arrangements are in place. I would make the same point as I did earlier today, about clause 22.6. Apart from that, Commissioner, I just wanted to go back to the point, I don't quite understand my notes. A moment. No, I have nothing further to add, Commissioner.

PN658

THE COMMISSIONER: Anything further from you, Mr Tamvakologos?

PN659

MR TAMVAKOLOGOS: Commissioner, can you just give me one moment? I'll just check my instructions.

PN660

THE COMMISSIONER: Yes.

PN661

MR TAMVAKOLOGOS: Commissioner, thank you for hearing us, we have nothing further.

PN662

THE COMMISSIONER: Thank you, parties. Nothing from you further, Mr Dwyer, I take it?

PN663

MR DWYER: No, no, Commissioner. Thank you.

PN664

THE COMMISSIONER: All right.

PN665

MR DWYER: Thank you for your tolerance.

PN666

THE COMMISSIONER: Thank you. Thank you, parties, for your closing submissions today. I will now adjourn and reserve my decision. Thank you.

ADJOURNED INDEFINITELY [4.03 PM]