PR937222 PR937222 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.99 notification of industrial dispute Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Telstra Corporation Limited (C2003/1385) Various employees COMMISSIONER SMITH MELBOURNE, 4 SEPTEMBER 2003 Relocation costs - Mr Lewis Wills. DECISION Introduction. [1] By notification dated 5 March 2003 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) notified the existence of an alleged industrial dispute pursuant to s.99 of the Workplace Relations Act 1996 (the Act). The dispute was said to be between the CEPU and Telstra Corporation Limited (Telstra) over its decision in relation to the relocation of Mr Lewis Wills. [2] Conciliation failed to settle the matter and on 8 April 2003 Directions were issued to determine the conduct of the matter. [3] In the proceedings which followed Mr R Dalton, solicitor, appeared by leave for Telstra and Mr D Irons appeared for CEPU. BACKGROUND AND SUBMISSIONS. [4] Consistent with the Directions issued, the parties prepared a statement of agreed facts in relation to the issues in contention. 1 Briefly, the controversy surrounds the circumstances of Mr Lewis Wills, who was relocated in 1986 from his employment with the Australian Telecommunications Commission in Bendigo in Victoria, to Darwin in the Northern Territory. [5] In 1992 Mr Wills purchased a home in Darwin (a previously owned Telstra property). [6] In January 2002, following extensive negotiation, Telstra argued that Darwin was no longer a remote locality and as such many of the benefits which attach to remote localities should be discontinued. The subsequent arbitration gave rise to the making of the Telstra (Remote Localities) Award 2002 [AW813059]. Relevantly, persons who had been in receipt of remote localities benefits were given options in consideration for their removal. One option was to return to the location from which they were recruited. Mr Wills decided to return to Bendigo. [7] The decision stated: Telstra now wish to remove remote localities arrangements from Darwin, Townsville and Cairns which it believes are no longer "remote". The CPSU, the Community and Public Sector Union (CPSU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) have opposed the removal. Having considered the views expressed by the parties in support of their respective positions, I am of the view that Telstra is entitled to remove the remote locations allowance in Darwin, Cairns and Townsville, but employees in these three areas should be given a choice as to the handling of their remote localities arrangements to minimise any negative impact on the Telstra employees involved by the removal of such arrangements. Telstra employees in Darwin, Townsville and Cairns, shall be provided with three options -- a buyout option, a grandfathering option and a return to home-base option. Employees shall be required to select only one option. and later: The return to home-base option will enable employees to elect to return to the location from which they were recruited. Management will arrange for this to occur, consistent with business requirements. The current remote localities benefits will continue until such time as the return has been completed. Management will expedite these arrangements so that staff are not unduly held in the current location. 2 [8] This last reference in the decision to the return to home-base was in identical terms to the offer that was given to staff. [9] The relocation policy 3 was applied to Mr Wills. Within the relocation policy of Telstra there are minimum entitlements and then there are discretionary entitlements. Mr Wills received all minimum entitlements but did not receive a discretionary item relating to costs of sale or purchase of the principal residence. Mr Wills believes this to be unfair and argues that he: · had an assurance when he moved to Darwin that he could return to Bendigo after three years and that Telstra would reimburse him for legal and vendor costs associated with the sale/purchase of his principle residence; · was subject to the policy of Telstra at the time 4 which provided for such reimbursements; · did not agree with the subsequent change of policy which occurred without consultation with the CEPU; and · that he incurred costs of $14,439.40 and believes that he should be reimbursed. [10] Telstra began it submission with jurisdictional challenges to the Commission. The jurisdictional objections constituted 54 paragraphs of a 62 paragraph submission 5 . In summary they were: · that no dispute existed of an industrial character within the meaning of s.4 of the Act; · the Commission was being asked to make an award which did not constitute a minimum rates award; and · the application exceeded the safety net and as such it was not within the jurisdiction of the Commission as constituted to grant. [See: s.106 of the Act] [11] As to the merit of the application Telstra submitted, at paragraph 58 of its submission, that its discretion had been exercised fairly. It drew upon the discretionary decision of Mr Wills to relocate; the amount paid in relation to relocation; 6 the fact that if Mr Wills had remained in Darwin the buy-out option would have produced a lesser figure than that already paid, 7 and finally, there was no financial disadvantage in relation to the sale/purchase price of his homes. Conclusion. [12] It is appropriate to firstly turn to those matters relating to jurisdiction. [13] In each of them I do not share the view expressed by Telstra. To begin the CEPU has made it clear that the jurisdictional base for the application is based upon a finding of dispute with Cox C. 8 That dispute finding contains a demand in relation to relocation and the subject matter of the current application is encompassed by the log. I do not accept that the log cannot be relied upon because some time has passed since it was served and that an order only relates to an individual. This individual, through his registered organisation, may be taken, in the circumstances of this case, to be a part of a class of person for whom Telstra has a complete policy. It is commonly understood that logs of claims contain items that can be pursued over time, and that part settlement of a dispute can take many forms. 9 This is not a case where an individual has sought to agitate the jurisdiction of the Commission in relation to a matter that does not have broader application, but rather a registered organisation which is party to an extant dispute finding and has an interest on behalf of all of its members who may be subject to the relocation policy of Telstra in particular circumstances. [14] The second aspect relates to whether or not the Commission is creating anything other than a minimum rates award. Unless an order is made which seeks to restrict the employers capacity to offer more than the award then, almost by definition, it becomes the minimum that should be observed. The Act and the principles of wage fixation provide for constraints upon single members of the Commission in relation to some claims relating to the level of minimum entitlements, but that should not be confused with the effect of an order. In this case I have not been asked to prohibit the employer from granting any concession above the order sought and therefore, in my view, it does not have the character of anything other than minimum. It follows that this jurisdictional objection fails. [15] Finally, I turn to the argument that the application constituted a claim above the safety net. It is argued that as there is no provision in the award, and the award constitutes a safety net, then such a claim must be above the safety net. [16] In this case the claim is for a new allowance. [17] The Statement of Principles makes provisions for claims to be made for new allowances. The principle provides, inter alia: (f) New allowances to compensate for the reimbursement of expenses incurred may be awarded where appropriate having regard to such expenses. 10 [18] It can not be that a claim is said to be above the safety net if it is otherwise consistent with the principles. If the argument was correct any claim for a new allowance, or for that matter any rate or condition of employment that was not a test case standard, would have to be considered by the President under principle 10. This principle permits a variation to the safety net without necessarily constituting a claim which is said to be above the safety net. Again, I can not agree with Telstra in this regard. [19] I now turn to the merit. [20] Mr Wills was not asked by Telstra to relocate. He made that election from a number of options and only because the benefits of remote localities allowance were found by the Commission to be no longer warranted in Darwin. [21] Further, the manager took into account all of the circumstances and costs facing Mr Wills and concluded that the discretionary elements of the policy were not warranted. I am also of the view that reference to an earlier policy does not arise for consideration in these proceedings. To begin, the policy is predicated upon transfer to and from a remote locality. This is no longer the case in Darwin and the reason why a return home option was included was to give people as many choices as possible. This is not a case where someone was returning from a remote locality but where a choice was made between three options designed to cushion the change in status of Darwin. The factual matrix has changed dramatically. [22] The factors taken into account by Telstra are: · the fact that Darwin was no longer a remote locality; · the options provided to employees who were previously in receipt of a remote localities allowance; · the fact that Mr Wills was aware of the options available to him at the time he made an election; · the current policy; · the relocation was not for business reasons; and · the differences in real estate prices between Darwin and Bendigo. [23] It is well settled that the Commission gives great weight to the prerogative of management to run and organise the business in the most efficient manner 11 and that discretion should not lightly be interfered with unless there is good reason. It is not the case that the Commission would substitute its view for that of an employer unless the employer has acted harshly, unjustly or unreasonably. In the circumstances of this case, I cannot be satisfied that Telstra acted in such a way in the exercise of its discretion. The discretionary decision exercised by the manager was reasonably open to him. [24] It follows that I dismiss the application. BY THE COMMISSION: COMMISSIONER Appearances: D Irons for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia R. Dalton Solicitor on behalf of Telstra Corporation Limited. Hearing details: 2003 Melbourne July, 1 Printed by authority of the Commonwealth Government Printer <Price code C> 1 Exhibit Joint 1 2 PR913268 3 Exhibit CPSU2 4 Exhibit CEPU3, Attachments 1 and 2, Australian Telecommunications Commission Personnel and Industrial Relations Departments Guidelines and Procedures 5 Exhibit Telstra1 6 Approximately $18,000 7 $15,962.80 8 See C No. 32364 of 1992, Finding of Dispute 14 December 1992 9 R v. Isaac; Ex Parte SECV (1978) 140 CLR 615 10 PR002003 11 Australian Federated Union of Locomotive Enginemen v. State Rail Authority of New South Wales (the XPT case) [(1984) 295 CAR 188 at page 193]