7 June 2020

We reported last week of a proposed move by Telstra to press staff to take more leave. We can understand that if you face being terminated from Telstra in the next round of redundancies, that you do not believe in a "social compact" or a "team spirit". There will be another (alleged) shut down this Xmas - and you may be forced to take more leave. There are rumours that it will be more than 2 weeks! Below (In response to a number of members who do not want to take more leave) we summarise the situation as we see it.

The Telstra EBA is still with Fair Work awaiting certification. It appears that Telstra needs to deal with some questions about the Better Off Overall Test (Boot). We will be advising when it is certified. The parties are exchanging submissions. We expect that Telstra will be making undertakings, and if acceptable to FWC, certification would not be far away.

The EBA provision will not change with the new EBA. It states: Taking annual leave

    a) You must agree with your manager when you will take annual leave. Your manager will act reasonably when trying to accommodate requests, having regard to Telstra's business requirements.

    b) Telstra may direct you to take leave if it's reasonable to do so. Examples of when Telstra might do this include:
    i) if Telstra is shutting down all or part of the business for a period, such as over Christmas or New Year;
    ii) if you have accrued more than 6 weeks of annual leave (7 weeks for continuous shift workers)-though Telstra won't leave you with less than 4 weeks of accrued annual leave if Telstra does this (or 5 weeks if you are a continuous shift worker).

There are four important matters to note:
1. Telstra must act reasonably
2. This can be triggered by a shut down
3. Excessive leave is more than 6 weeks
4. You must be left with at least 4 weeks
Telstra has been pressing staff to take leave to help their profits. But they cannot force you to take leave outside these parameters. If you are asked or directed to take leave outside these parameters, we are here to assist.

The new EBA (when certified) will add new LSL provisions. Clause 33.3 has been added.

    33.1. You get 3 months of long service leave after 10 years of service, and a further 9 calendar days for each additional year of service.

    33.2. Further details of your long service leave entitlement are set out in Telstra policy and in the Long Service Leave (Commonwealth Employees) Act 1976. This Act:
    a) will apply to you until this Agreement is terminated or replaced; and
    b) overrides any entitlements to long service leave under State or Territory laws.

    33.3. While the Agreement is in operation, and subject to legislative requirements, Telstra will not modify the provisions in Telstra policy that set out the circumstances in which Telstra may require an employee to take long service leave.

In 2020, Telstra issued a new policy to meet the EBA requirements. It states:

    Employees with over 90 days accrued Long Service Leave by the first of January each year are expected to make an application to take 9 calendar days LSL within the calendar year in which the application is made.

    Subject to operational requirements, the LSL may be taken at a time of the employee's choosing. The application for LSL must be made by 30 June.

    If two applications to take LSL, covering two separate periods are presented by the employee and are declined by Telstra, Telstra will not then direct the employee to take 9 calendar days in that calendar year.

    If the employee doesn't make an application for 9 calendar days LSL by 30 June, Telstra and the employee will work together to find a suitable time for the employee to take 9 calendar days.

    If no mutual agreement can be made about taking the LSL, Telstra may direct the employee to take 9 days LSL during the same calendar year, provided that:

  • The employee is provided at least 3 months' notice of the requirement to take LSL; and
  • The manager considers individual circumstances raised by the employee. Examples of individual circumstances that will be taken into account include family/carer responsibilities, plans for a longer holiday or an event (e.g., wedding) and the impact on work group/team in terms of resourcing.

    If an employee chooses to take a period of 7 days LSL in a calendar year, a minimum additional period of 7 days should be taken to ensure the employee meets the minimum annual requirement of 9 days LSL.

    If an employee makes an application to take at least 18 days of LSL in the subsequent year and the application is approved, the requirement to take 9 days within a calendar year will be waived.

We believe that the current EBA does not allow Telstra to force you to take LSL. If you have less than 10 years service, you have not accrued LSL - but you may be entitled to if in some circumstances.

The new provision calls up Telstra Policy which will not be changed during the life of the agreement.

There are several important matters:
1. You must have accrued over 90 days on 1 January.
2. If so, you may be required to take 9 days LSL in that calendar year.
3. The 9 days are calendar days.
4. You may choose the time (subject to operational requirements)
5. Other provisions apply.

The briefings are taking place as Post moves to implement its proposal to deliver mail every second day, and parcels every day. The new arrangement would result, potentially, in a notional 25% reduction in delivery staff. We have not seen major redundancies in Post to date. Our experience in Telstra has seen that there will be a number of voluntary acceptances. As the union representing technical staff in Post, we have not been consulted. We assume technical staff will be unaffected.

The media still reports that the future of NBN and InfraCo may be reconsidered. Here some comments from the media:

    While NBN Co is currently considering buying networks from Telstra, there is the possibility Telstra could then buy the whole NBN company from the government in the future. Last month the minister appeared more open to the idea of Telstra's wholesale company InfraCo eventually owning NBN Co than he had in the past, provided Telstra spun off InfraCo.
    "I'll leave it to Telstra's bankers and lawyers to dream up structures. But the position is clear, if you operate retail telecommunication services, there's a barrier that applies to your acquiring NBN. If you don't, then that particular barrier does not apply," he told the AFR.

Please note the following changes as we simplify our phone numbers
0428 942 878 dan.dwyer@cwunion.net Dan Dwyer Secretary/Lawyer - for industrial matters & advice
0447 365 433 reception@cwunion.net Administrative eg payments, applications, change of details

Authorised by Dan Dwyer Branch Secretary
CWU Telecommunications & Services Branch, Sydney City, NSW.



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