PR937396 Note: An appeal pursuant to s.45 (C2005/3087) was lodged against this decision. AW806385 PR937396 Download Word Document The attached document replaces the document previously issued with the above code on 4 September 2003. Cathy Bartlett Associate to Commissioner Smith Dated 4 September 2003 AW806385 PR937396 AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.113 application for variation CPSU, the Community and Public Sector Union (C2001/6358) TELSTRA/CPSU AWARD 2001 (ODN C No. 33313 of 1991) [Print N7759  AW806385]] Telecommunications services COMMISSIONER SMITH MELBOURNE, 4 SEPTEMBER 2003 Freedom of association; right of representation; matters pertaining to employers and employees; overseas experience; dispute resolution training. DECISION INTRODUCTION [1] The CPSU, the Community and Public Sector Union (CPSU) has made application pursuant to s.113 of the Workplace Relations Act 1996 (the Act) to vary clause 19 of the Telstra/CPSU Award 2001 (the Award) [AW806385] to include procedures to avoid industrial disputation. [2] Currently clause 19 of the Award currently provides: " 19. PROCEDURE TO AVOID INDUSTRIAL DISPUTATION 19.1 The primary responsibility for dispute resolution is between employees and their managers/supervisors. In the event of a dispute arising in the workplace, about the application of this award, the procedure to be allowed to resolve the matter will be as follows: 19.2 The employees and their managers/supervisors will meet and confer on the matter. 19.3 If the matter is not resolved at the meeting, the parties will arrange for further discussions between the employees and more senior levels of management. The employees may have a representative. 19.4 If the matter is still not resolved the parties will elevate it to the head of the Business Unit. 19.5 If the matter is still not resolved it may be referred to the Australian Industrial Relations Commission for assistance." [3] The variation sought by CPSU as varied on 21 May 2002 is to delete existing clauses 19.2 to 19.5 and replace them with the following: " 19.2 The employee/s and their managers/supervisors will meet and confer on the matter. 19.3 If the matter is not resolved at the meeting, the parties will arrange for further discussions between the employees and more senior levels of management. 19.4 If the matter is still not resolved the parties will elevate it to the head of the Business Unit. 19.5 If the matter is still not resolved it may be referred to the Australian Industrial Relations Commission for conciliation and, if necessary, arbitration. 19.6 In order to facilitate the procedure in this clause: 19.6.1 The party with the grievance must notify the other party at the earliest opportunity of the problem; 19.6.2 Throughout all stages of the procedure all relevant facts must be clearly identified and recorded; 19.2.3 Sensible time limits must be allowed for completion of the various stages of discussion. However, the parties must co-operate to ensure that the disputes resolution procedures are carried out as quickly as possible. 19.2.4 While the parties are attempting to resolve the matter the parties will continue to work in accordance with this award and their contract of employment unless the employee has a reasonable concern about an imminent risk to his or her health and safety. 19.6.5 At any stage in the process the employees may appoint another person to act on their behalf including a union delegate or union officer/official. 19.6.6 Where the delegate is involved he/she will be allowed the necessary time during working hours to interview the employee(s) and the supervisor involved in the matter. Where the union officer or official is involved the delegate shall be allowed at a place designated by the employer, a reasonable period of time during working hours to interview the duly accredited union officer or official. 19.6.7 Where the provisions of clause 19.2 and 19.3 have been complied with, and to assist in the resolution of the matter, if a representative has acted in accordance with clause 19.6.5 that representative will be granted leave of absence to attend AIRC proceedings arising from referral of the matter in clause 19.5. A representative granted leave of absence under this clause will not suffer any loss of pay. 19.6.8 To assist in the resolution of disputes a representative, referred to in this clause, will be granted leave of absence to attend short courses which are specifically directed towards effective dispute resolution. The grant of leave will be without loss of pay and subject to the operating requirements of the business. " 1 [4] In short, CPSU seek to include, in the procedure for resolving disputes, the right of the employee involved to be represented at any stage of the procedures by a person of her/his choosing which could include a union delegate, officer or official. In addition, CPSU seek paid time from work to assist in the representative role including the attendance at short courses which are directed towards effective dispute resolution. CPSU included courses conducted by it. [5] Telstra Corporation Limited (Telstra) oppose this application and given that conciliation did not produce agreement the matter proceeded to arbitration. Arbitration involves the exercise of discretion having regard to the provisions of the Act. In undertaking this task it appears to me that a number of provisions form the backdrop of my considerations. [6] Some of those provisions include: SECTION 3 PRINCIPAL OBJECT OF THIS ACT ....... (b) ensuring that the primary responsibility for determining matters affecting the relationship between employers and employees rests with the employer and employees at the workplace or enterprise level; and .................... (e) providing a framework of rights and responsibilities for employers and employees, and their organisations, which supports fair and effective agreement-making and ensures that they abide by awards and agreements applying to them; and (f) ensuring freedom of association, including the rights of employees and employers to join an organisation or association of their choice, or not to join an organisation or association; and (g) ensuring that employee and employer organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and SECTION 92 COMMISSION TO HAVE REGARD TO COMPLIANCE WITH DISPUTES PROCEDURES Where the parties to an industrial dispute are bound by an award that provides for procedures for preventing or settling industrial disputes between them, the Commission shall, in considering whether or when it will exercise its powers in relation to the industrial dispute, have regard to the extent to which the procedures (if applicable to the industrial dispute) have been complied with by the parties and the circumstances of any compliance or noncompliance with the procedures. SECTION 110 PROCEDURE OF COMMISSION ........................ (2) In the hearing and determination of an industrial dispute or in any other proceedings before the Commission: (a) the procedure of the Commission is, subject to this Act and the Rules of the Commission, within the discretion of the Commission; (b) the Commission is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it considers just; and (c) the Commission shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms. [7] A further relevant instrument, in my view, is Convention 87 - Convention concerning Freedom of Association and Protection of the Right to Organise - of the International Labour Organisation ("ILO") ratified by Australia on 28 February 1973. 2 [8] I propose to deal with the two aspects of the application separately. To begin, I shall deal with the application in so far as it relates to the role of the CPSU or its representatives in the dispute settlement process within Telstra. THE DISPUTE SETTLEMENT PROCESS The case put by CPSU [9] To begin, CPSU dealt with the jurisdictional basis upon which the application is founded and argue that the clause it seeks is allowable having regard to s. 89A of the Act. 3 [10] CPSU argue that: · the application is consistent with the objects of the Act; · its involvement either through delegates, officials, or officers will assist in the prevention and settlement of disputes at an early stage; · employees should be entitled to be represented if they wish; and · the clause sought would provide a fair go for employees in dispute resolution. [11] Of particular emphasis in the argument advanced by CPSU is the process put in place by Telstra for the resolution of disputes, known as the Fair Treatment Process (FTP), which it says is about the desire of Telstra to control outcomes in the dispute resolution process. It was submitted that the FTP was communicated by Telstra as the only form of dispute resolution process. [12] The concern held by CPSU in relation to the FTP was conveyed in its final submissions: "I think there shouldn't be any doubt that this case is fundamentally about power. On the other side of the bar table we have one of Australia's largest, and certainly Australia's most profitable company, producing record profits year upon year. It is also arguably Australia's most sophisticated company in terms of its ability to control and manipulate the information provided to its workers in the environment in which they operate. This case, Commissioner, is about the control of information and about employees wrestling back some of the power over that information and over processes within the company to ensure that, at least in respect of dispute resolution, that they have a fair go ............ Neither does the company have any policies for providing information to employees about the operation of the award dispute settlement procedure, or employees rights under the award. Seemingly the company is not interested in anyone being aware of their award rights. Telstra sits in a position of great power in relation to its employees. All processes for dispute resolution within Telstra, in terms of Telstra's preferred procedures, further reinforce the powerlessness of employees in the face of any policy or directive of Telstra. The internal process called the fair treatment process, or FTP, is presented to employees with Telstra strong preference. The FTP, there was evidence, is a review which does not question policy or senior management directives, it is a process that only provides for independent review on the papers and in relation to the process of the procedure only. Otherwise all review is either by direct management or management in the same line of business. The fair treatment process removes rights of representation. The fair treatment process also reserves the final decision to the company in matter that might be in dispute. The company's agenda, on our submission, is to control dispute settlement processes by preventing supervisors and staff being aware of the rights, preventing representation, failing to provide training and ensuring that the company has the final this decision." [Transcript PN4842-4845] [13] In support of this argument, CPSU called a number of witnesses to give evidence. On this aspect of the argument I shall highlight the relevant evidence. Those called by CPSU were: · Mr R S C Evans, National Industrial Officer CPSU; · Ms M Shirley, Delegate for CPSU and employed by Telstra; and · Ms J Cherry, Delegate for CPSU and employed by Telstra. [14] Mr Evans began his evidence by outlining the changes in the structure of Telstra since the early 1990's when deregulation of the telecommunications industry began. He noted that Telstra has continued to reduce staff from approximately 90,000 to 35,000; to contract out; engage labour hire staff and create other business entities. He stated that the introduction of Australian Workplace Agreements (AWA) as a condition of employment also introduced a significant industrial dynamic into the workplace. [15] Mr Evans was of the view that the complex industrial environment, with eight awards, seven certified agreements together with AWAs and substantial company policy directives, made it difficult for employees. He said that CPSU had members in approximately 900 worksites. [16] Further, Mr Evans stated that delegates needed to be trained and permitted time off work with pay to properly carry out a representative role in this type of environment. [17] Mr Evans dealt with a number of instances where he said that the dispute settling machinery did not work well. [18] In relation to the FTP it was the evidence of Mr Evans that local Telstra Managers: · refuse to acknowledge CPSU delegates; · fail to recognise or use the award dispute settlement procedures; · always refer employees to the FTP; and · will not permit delegates to participate in the FTP on behalf of members of CPSU. [19] Ms Shirley's evidence went to her training as a delegate and the benefits she derived from that together with her involvement in dispute resolution in the workplace. Ms Shirley did give direct evidence on the approach of Telstra with its FTP. She stated that she believed that it was her approach to dispute resolution which enabled early settlement of matters rather than the operation of the FTP. Indeed it was Ms Shirley's evidence that " staff in my office refer to the procedure as the unfair treatment process ". 4 [20] The evidence of Ms J Cherry went to the training she received in dispute resolution and her experience with the FTP which she found to be unsatisfactory. The case put by Telstra [21] Telstra opposed the application made by CPSU in its totality and in its outline of submissions Telstra stated that its opposition was based upon the following broad propositions. · The award was recently made by the Commission after an extensive review. It should not be amended simply because an application to do so is made. · The variations simply add process and detail toward what is a straightforward clause. · Some of the variations are not allowable. · Some of the variations take the award above the recently established safety net and are not consistent with safety net principals. · There is no industrial merit in the variations sought. · The evidence and material advanced by CPSU does not justify such variations to the award. [22] Again, in this section of the decision I shall only examine that aspect of the application which seeks to have the right for an employee to be represented during any grievance. [23] Three witnesses from Telstra gave evidence on this aspect of the application. They were: · Mr B R Wicks, Senior Manager Workplace Relations; · Mr I Cartwright, General Manager for Corporate Wide Shared Service; and · Mr J Clifford, General Manager Human Resources -Telstra Retail. [24] In examining this aspect of the application it is also appropriate at this stage to briefly outline the FTP. [25] The FTP is described in the witness statement of Mr Benjamin Wicks. 5 [26] Whilst a full description of the FTP is attached to the statement of Mr Wicks, a number of the key characteristics are that the: · stated intent is that the procedure is aimed at ensuring fairness in the work place; · procedure applies to all Telstra employees and is preferred by Telstra as a method of resolving individual grievances; · procedure encompasses any decision or action which affects the employment of an employee of Telstra with the exception of: decisions to dismiss or retire; sexual harassment and equal opportunity issues; · procedure covers both award and non-award matters; [Transcript PN3706] · procedure is not intended to apply to collective disputes, only individual grievances; [Transcript PN3719] · procedure escalates at the request of the employee to a higher level of management; · decision which may be the subject of review may not be able to be "reviewed" by the immediate supervisor; [Transcript PN3794] · fair treatment review does not call into question the policy decision taken by management because it does not review a policy decision; 6 · escalation of the review is not concerned with the merits, only the procedure followed by the lower level of management; and · employee is not permitted any form of representation at any stage of the procedure. 7 [27] Other aspects of Mr Wick's evidence went to the structure of Telstra; the industrial framework for determining terms and conditions of employment; the area of CPSU coverage, and the experience of Telstra in industrial disputes and working hours lost. [28] The evidence of Mr Cartwright dealt with the philosophy of Telstra that all employees and managers should firstly try to resolve issues between themselves at a local level so that employees will feel that they can raise any workplace concern with their managers. [29] Mr Cartwright outlined other areas of workplace communication and the level of disputes in his area of responsibility. In particular, the practical problems associated with the proposals of CPSU was outlined in the evidence of Mr Cartwright. It was also his view that: "I consider the work ethic and cooperation between mangers and staff in CWWSS-Ops to be very good. The good rapport between managers and their staff, in my view, means that disputes are few and far between and are dealt without the need for third party intervention." 8 [30] This concept of rejecting "third party intervention" is one which, from my experience in the panel, has been important to Telstra. Mr Cartwright viewed a "third party" as a representative. 9 Conclusion on Dispute Settlement Process [31] It is beyond argument that Telstra prefers to have all employee initiated grievances 10 processed through its FTP. It is also beyond argument that Telstra will not permit a union representative to speak on behalf of a member in relation to a grievance. [32] Recently a Full Bench observed: "If freedom of association has meaning, a choice of employees to become, or remain, members of the union and their preference for collective representation should not prejudice such employees. Freedom of association has a clear industrial context and should not be pressed into a social context." 11 [33] In the context of this case, Telstra acknowledges the right of an employee to join a trade union. However in the circumstances of a grievance, it will not permit that union to advance and protect the interests of its members at the workplace. In short, the employees do not have a freedom of choice in this connection. It may be argued that freedom of choice is an element necessarily inherent in a right to freedom of association. [34] It cannot be, that a person is genuinely free to join an association which is formed to advance and protect her/his industrial interests if an employer seeks to unnecessarily fetter an incident of that freedom in relation to how that association can advance or protect those interests. [35] The question is, therefore, how far can an individuals freedom of choice about representation be extended having regard to Australia's national laws as set out in the objects of the Act: namely, that the primary responsibility for determining matters affecting the relationship between employers and employees rests with the employer and employee at the workplace and enterprise level. For example, is it inconsistent with those objects for a union representative, who is an employee, to assist another employee who is a member of that union? In other words, is it appropriate in all circumstances for there to be freedom of choice by the employee to the exclusion of the employers preferred method of dealing with grievances? [36] The underpinning philosophy adopted by Telstra of "no third party intervention" or "one to one" processes extends to disciplinary or investigation interviews. [37] In the United States of America in the case NLRB v. Weingarten, Inc., 420 U.S. 251 (1975), the Supreme Court held that there is a right of a unionised employee to have a representative in any investigatory interview. In that case the Court recognised that the National Labour Relations Act (NLRA) was designed to eliminate inequality of bargaining power between employees and employers and referred to the decision in American Ship Building Co. v NLRB, 380 U.S. 300, 316 (1965): "Requiring a lone employee to attend an investigatory interview which he reasonably believes may result in the imposition of discipline perpetuates the inequality the Act was designed to eliminate, and bars recourse to the safeguards of the Act provided "to redress the perceived imbalance of economic power between labour and management." The Court went on: "A single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors. A knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview. Certainly his presence need not transform the interview into an adversary contest. Respondent suggests nonetheless that union representation at this stage is unnecessary because a decision as to the employee culpability or disciplinary action can be corrected after the decision to impose discipline has become final. In other words, ..... challenging the employer's determination of guilt after the employee has been discharged or otherwise disciplined. At that point, however, it becomes increasingly difficult for the employee to vindicate himself, and the value of representation is correspondingly diminished. The employer may be then more concerned with justifying his actions than re-examining them." [38] The decision in Weingarten was subsequently expanded to include non-unionised workplaces: Epilepsy Foundation of Northeast Ohio v. NLRB , No. 00-1332, 2001 U.S. App. LEXIS 23722 (D.C Circ., Nov. 2, 2001). [39] It can be seen that a main tenet of Weingarten was to give effect to an express provision of the NLRA in relation to a balancing of power between the employer and the employee. Whilst not expressly stated in the Act, it must be said, having regard to the Objects (s.3) and notions of equity and good conscience (s.110) that the public interest is best served by ensuring that injustice is not visited upon one of the industrial parties by an inappropriate use of power. It is not apparent that the Act otherwise mandates that the Commission should prefer either employers or employees in the resolution of matters at the workplace. [40] The European Court of Human Rights ("ECHR"), in examining the Convention for the Protection of Human Rights and Fundamental Freedoms, has examined freedom of association in a different context. In Wilson & The National Union of Journalists, Palmer, Wyeth & The Nation Union of Rail, Maritime & Transport Workers, Doolan & Others v The United Kingdom [2002] ECHR the Court was examining rights in relation to collective bargaining, but the observation in that judgment is worth noting in the context of this case: "... it is of the essence of the right to join a trade union for the protection of their interests that employees should be free to instruct or permit the union to make representations to their employer or to take action in support of their interests on their behalf. If workers are prevented from doing so, their freedom to belong to a trade union, for the protection of their interests, becomes illusory." [at PN46] [41] It should also be noted that the Court ruled on the impact of domestic law on freedom of association, which must always be considered in examining the application of Conventions and the influence or otherwise of overseas laws and practices. [42] In the United Kingdom, The Employment Act 2002 deals with the question of representation at disciplinary or grievance hearings [Schedule 2] by incorporating the relevant provisions of the Employment Relations Act 1999 . That provides inter alia: " 10. (1) This section applies where a worker- (a) is required or invited by his employer to attend a disciplinary or grievance hearing, and (b) reasonably requests to be accompanied at the hearing. (2) Where this section applies the employer must permit the worker to be accompanied at the hearing by a single companion who- (a) is chosen by the worker and is within subsection (3), (b) is to be permitted to address the hearing (but not to answer questions on behalf of the worker), and (c) is to be permitted to confer with the worker during the hearing. (3) A person is within this subsection if he is- (a) employed by a trade union of which he is an official within the meaning of sections 1 and 119 of the Trade Union and Labour Relations (Consolidation) Act 1992, (b) an official of a trade union (within that meaning) whom the union has reasonably certified in writing as having experience of, or as having received training in, acting as a worker's companion at disciplinary or grievance hearings, or (c) another of the employer's workers. (4) If- (a) a worker has a right under this section to be accompanied at a hearing, (b) his chosen companion will not be available at the time proposed for the hearing by the employer, and (c) the worker proposes an alternative time which satisfies subsection (5), the employer must postpone the hearing to the time proposed by the worker. (5) An alternative time must- (a) be reasonable, and (b) fall before the end of the period of five working days beginning with the first working day after the day proposed by the employer. (6) An employer shall permit a worker to take time off during working hours for the purpose of accompanying another of the employer's workers in accordance with a request under subsection (1)(b). (7) Sections 168(3) and (4), 169 and 171 to 173 of the Trade Union and Labour Relations (Consolidation) Act 1992 (time off for carrying out trade union duties) shall apply in relation to subsection (6) above as they apply in relation to section 168(1) of that Act. " [43] Against this background, is it reasonable to deny to a person who may be grieving or involved in a disciplinary process the right to choose to bring "a friend" to such processes and to have that "friend" assist and/or advocate on their behalf? [44] Given the tenets of fairness contained in the Act, the importance of freedom of association as evidenced by its relationship to the Act, together with overseas experience in this area, I am led to conclude that the answer to that question is no. In my view the approach adopted by Telstra, where it denies representation, is unfair. [45] Further, and in my view, to deny representation in circumstances where a person is a member of a trade union, is to take away a benefit from an employee relating to access and support in dealings with the employer. Trade unions are formed to advance and protect members interests in employment relationships. Seen in this light, representation, or access to representation, is not a matter pertaining to the union and the employee, it is a matter which is related to the employer/employee relationship. 12 It would be giving lip service only to the notion of freedom of association if an employers actions effectively made that freedom to associate a nullity in the workplace because support could not be obtained in any real or effective sense. The observations of the ECHR referred to earlier are apposite. [46] However, it is important at this stage to identify clearly the work to be done by a dispute settlement procedure, because whilst I believe the policy adopted by Telstra to be unfair, there is limited relief that can be granted given the myriad of instruments which apply and the scope of a dispute settlement procedure. In reaching this view, I am mindful of the fact that the award currently provides for an employee to have a representative but the approach adopted by Telstra is to discourage and limit that role. Clarity is needed. [47] Given my conclusion that the policy of Telstra is unfair, the question now is how far the access to representation should go. Telstra raised a number of objections against a variation to the award beyond the immediate merit issue in relation to the desirability or otherwise to representation. [48] The first issue raised by Telstra is that the award should not be further amended so recently after a review. There is no doubt that the Commission is reluctant to continually open awards up for variation in circumstances where the subject matter has been recently considered. However, this is not to say that it should not be undertaken if the merit otherwise demands a review. Given the nature of the previous review (which was a simplification exercise) and the issues raised before me, I believe it is appropriate to permit the award to be varied if the merit otherwise demands that course and there are no other compelling grounds to deny a re-opening of an award. [49] Telstra argue that the following clauses of the application are not allowable: 19.6.3; 19.6.6 and 19.6.8 and I have taken this into consideration. [50] The next matter raised by Telstra went to the extent of the power of the Commission to arbitrate a dispute settlement procedure. Two issues arise. The first is the extent to which an arbitrated dispute settlement procedure can determine matters that the Commission does not have power itself to determine, [see R v Portus; Ex parte City of Perth [1973] 129 CLR 312] and the second is, what can be the extent of the reach of the dispute settlement procedure. [51] In relation to the first matter, this was raised in response to a question posed by me about the FTP. The parties were asked if there was a capacity to import the FTP in some way into the dispute settlement procedure. Telstra argue that many of the provisions of the FTP would be beyond power. As to this matter, I had in mind attempting to give some statutory backing to the policy that Telstra had developed with some alterations to deal with the representation issue. However, given the strong objection by Telstra to this course I shall not pursue that objective. [52] As to the reach of any dispute resolution procedure, it was submitted that such a procedure in an award was aimed at making the operation of the award more effective. [see R v Hegarty; Ex parte City of Salisbury [1981] 147 CLR 617] In this connection it was submitted that a disputes procedure could not deal with matters which were not covered by the award. The argument has force, but in light of the decision I have reached the matter does need to be considered further as I propose to restrict the procedure to operate in relation to matters covered by the award. [53] A number of other ancillary jurisdictional points were raised, as was an objection to the provision as it created too much machinery and detail. [54] Having considered these matters I would propose to vary the award to generally adopt the following approach. A. The primary responsibility for dispute resolution is between employees and their manager/supervisor and in the event that a dispute arises in the workplace about the proper application of the award, particular procedures will apply. The procedure shall apply in a way where an employee is made fully aware she/he has a right to choose the award disputes/grievance procedure over the FTP provided there are no other instruments which reduce that choice. B. The first contact for dispute/grievance resolution will be the employee and the immediate supervisor. At this meeting I will not provide a right for a representative. However, my view would have been different if the matter was a meeting which involved some form of disciplinary action by the employer. C. In the event that the matter is not resolved between the immediate supervisor then the matter may be referred to the next level of management. At this point the employee may be accompanied and represented by another person. That person may be a work colleague or a full time union official. Such a provision recognises that to allow someone to be represented at this stage will reflect a proper approach to fairness in the workplace including the right to belong or not to belong to a trade union. D. Where a person is selected to assist as a representative, that person may participate fully in the discussions with the employer and shall not be excluded from the discussion except that the representative shall not be permitted to answer questions directed at the employee raising the dispute. Whilst this would have particular relevance in a disciplinary hearing, I am also of the view that the person directly involved should be in a position to answer questions about her/his concerns. This provision will be deleted however if it is used to negate the role of the representative. Further, the representative, if it is a fellow employee, shall be permitted a reasonable period of paid time off work to confer with the person prior to meeting with the management representative. E. If the matter is not settled at that point, the matter may (if the person raising the grievance is a member of an organisation of employees bound by the award) be raised by the federal secretary (or some other authorised person) with the head of the business line at Telstra. At the same time the matter is raised with the head of the business line the relevant person in human resources should also be notified. The aim being that a matter should not come to the Commission unless and until the matter has been considered at the highest level by the relevant parties to the award, and that human resources is not taken by surprise should any dispute be notified to the Commission. F. If the matter is still not resolved it shall be referred to the Australian Industrial Relations Commission. I am not persuaded to grant paid leave, for general application, to a representative from the workplace at hearings in the Commission if the person lodging the dispute or grievance under the procedure is subsequently represented at the Commission by a union official. However, where the employee wishes to be represented at subsequent Commission proceedings only by the person who represented them at the workplace, then it is appropriate to grant paid leave. The Commission will then conduct the matter consistent with the powers conferred by the Act. [55] The new clause will be: "19. PROCEDURE TO RESOLVE GRIEVANCES AND AVOID INDUSTRIAL DISPUTATION 19.1 The primary responsibility for dispute resolution is between employee/s and their managers/supervisors. In the event of a dispute or grievance arising in the workplace, about matters arising under this award, either on an individual or collective basis, the procedure to be followed to resolve the matter will be: 19.1.1 The employee/s and their managers/supervisors will meet and confer on the matter. 19.1.2 If the matter is not resolved at that meeting, the parties will arrange for further discussions between the employee/s and more senior levels of management. The employee/s may have a representative. The representative may participate fully but not answer questions on behalf of the person/s raising the grievance or dispute. Where the representative is also an employee of the employer, both persons shall have a reasonable amount of paid time off work to prepare for the meeting. 19.1.3 If the matter is still not resolved, the employee/s, or their representative, will elevate it to the head of the Business Unit with written advice to Human Resources. At the election of the person raising the grievance, she/he shall be entitled to representation in the manner described in 19.1.2. 19.1.4 If the matter is still not resolved it may be referred to the Australian Industrial Relations Commission. Where a representative from the workplace has been involved and that person is requested to continue to be the sole representative, then the representative and the person involved in the grievance shall be granted time off work without loss of pay for the purpose of attending the hearing only." [56] The order varying the award is attached to this decision. TRAINING TO ASSIST WITH DISPUTE RESOLUTION [57] I now turn to consider the second aspect of the application namely the provision for paid time off work for workplace representatives to attend short courses which are specifically aimed at dispute resolution. [58] The application seeks: "19.6.8 To assist in the resolution of disputes a representative, referred to in this clause, will be granted leave of absence to attend short courses which are specifically directed towards effective dispute resolution. The grant of leave will be without loss of pay and subject to the operating requirements of the business." The case put by CPSU [59] To begin, CPSU argue that the provision of training in dispute resolution is allowable as it is incidental to the granting of a dispute resolution clause [ s.89A (2)(p)] and necessary for the effective operation of the award [ s.89A (6)]. CPSU rely upon the decision of the Full Bench in the s.109 Review Case: "The provision for shop steward education appearing at the foot of clause 33(d) is limited to leave to undertake training necessary to assist the stewards in their grievance role under the clause. It is therefore incidental to the dispute settling procedure. It is to be inferred that Commissioner Lewin concluded that the provision is also necessary for the effective operation of the award. The possibility that provisions such as these can fall within s.89A (6) is contemplated by the Leave Allowability Decision. [Print Q9399, PN41]" 13 [60] CPSU rely upon the evidence of Mr Crosby, 14 Ms Shirley, 15 Ms Cherry 16 and Ms Persse 17 to support its application. [61] CPSU submit that paid leave should be granted because the: · level of disputation in Telstra is high; · FTP is ineffective; · proposed clause will have the effect of reducing the incidence and duration of disputes; · proposed clause will better resolve individual disputes with collective implications; · clauses will rationalize competing dispute settlement procedures at Telstra; · proposed clause will resolve the ongoing dispute about representation at Telstra; · proposed procedure will bring to an end the ongoing breach of the award; and · industrial benefits outweigh the cost to Telstra. [62] CPSU added that the award previously provided for training leave but that Lewin C deleted it out of an abundance of caution believing that it may not be allowable, [Print Q3751] however later he observed that there may be scope for a reconsideration of the matter. 18 The case put by Telstra [63] Telstra, on the other hand argued that the clause was not allowable because it would be caught by the decision that trade union training leave was not allowable and it should not be assumed that simply because it was included in a dispute resolution procedure that it made the clause "incidental". [64] It was argued that the evidence did not support many of the reasons advanced for including such a clause. [65] Importantly Telstra submitted that the proposal of CPSU was too broad and only in outline because the contents of the course had not been developed. Conclusion on Training in Dispute Resolution [66] I have reached the view that CPSU has made out a prima facie case for the introduction of training in dispute resolution. I have reached this view for a number of reasons. Firstly, the fact that Telstra has been unfair in not permitting a person to be represented in a grievance at the appropriate time means that if representation is now to occur there needs to be training to ensure that representatives are equipped with the necessary skills. [67] The goal of both parties should be to produce effective dispute settlement and this will be assisted by attitudinal change. [68] Secondly, the decision of Munro J in Re: Metal, Engineering and Associated Industries Award, 1998 - Part 1 [ PR903193 ] has identified the jurisdiction and discretionary considerations upon which the Commission can act. However, and in this connection, the current application is based upon too broad an approach, and greater detail is necessary before there could be confidence that the provision was allowable. In the present circumstances the evidence would suggest that the clause was not allowable because there is insufficient particularity relating to settlement of disputes at Telstra. The present course structure is in heading terms only and the syllabus has not been developed. [Transcript PN3232-3235] [69] There has been a serious issue between Telstra and the industrial organisation representing a class of employee about representation and, in my view, training of representatives should be seen by both parties as being complementary to the effective operation of the business. Given that a conclusion has been reached that Telstra policy in denying representation is unfair, I expect that the policy will change generally. [70] As stated earlier, for this to be constructive it will require attitudinal change by both parties to the award. With this in mind I propose to adopt a course of action which will provide that opportunity if there is a will to do so. [71] I do not propose to dismiss the application at this stage but instead I invite Telstra and CPSU to confer about the development of a six month trial for workplace representative training. This should involve between 30 to 40 workplace representatives. The building of confidence would be assisted if CPSU permitted Telstra to express a view about the content of any training and how many persons should be selected to participate in a trial. Ideally, employee dispute resolution training should have a synergy with management training in workplace conflict resolution although there will be differences, and in the result each must be responsible for their own training. [72] If Telstra and CPSU are prepared to adopt a co-operative approach, in light of this decision to permit representation, discussions should take place over the next month. The Commission will be available to assist in conciliation if there is a shared objective. The matter will be listed on Wednesday, 1 October at 10.00 am in Melbourne where I will consider progress and any submissions as to the final disposal of the matter. BY THE COMMISSION: COMMISSIONER Printed by authority of the Commonwealth Government Printer <Price code F> 1 Exhibit J11 2 This is also directly referable to s.3(f) of the Act. 3 Re: Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award , [Print 7500, 23 December 1997] 4 Exhibit J4 - Supplementary Statement, PN7 5 Exhibit W23, attachment BW1 6 Transcript PN3840-41. On this aspect I also bring to bear my experience in matter C2002/4394. 7 Transcript PN3725 and PN3769-70 8 Exhibit W25 Paragraph 31 9 Transcript PN4606-4614 10 With the exception of those excluded from the FTP Policy 11 Construction, Forestry, Mining and Energy Union v. Pacific Coal Pty Ltd and Others [PR925566, PN38] 12 In a similar sense an award is capable of binding non-unionists because union members themselves have an interest in the relationship with their employer not being undermined. 13 Print R2700, PN174 14 Exhibit J12 15 Exhibit J4 16 Exhibit J6 17 Exhibit J7 18 Print R2293 at page 64