ydblogo
D A T A B A S E
yhologo

TELSTRA ENTERPRISE AGREEMENT 2019-2021

Telstra 2019 EBA

Telstra 2019 EBA Undertakings.
PDF Copy of EBA19 (Ver 2)
PDF Copy of EBA19 Undertakings


2019 EBA CERTIFICATION

The EBA was certified on 12 June 2020 after a very long consideration by the FWC. Telstra was required to give undertakings to supplement the EBA in order to have it certified.

The EBA operated from 19 June 2020. The nominal expiry date is 30 September 2021.

See the Undertakings here.

2019 EBA CAMPAIGN

See the Campaign Page for details.

TELSTRA EBA BALLOT RESULT - 6 DEC 2019

Telstra has advised that 65% of employees voted YES. Some 63% of the total pool of eligible voters participated. The EBA must now be submitted to the FWC for approval.

FWC CERTIFICATION DECISION

[2020] FWCA 3097 FAIR WORK COMMISSION
DECISION
Fair Work Act 2009 s.185-Enterprise agreement

Telstra Corporation Ltd

(AG2019/4937)
TELSTRA ENTERPRISE AGREEMENT 2019-2021
Telecommunications services

COMMISSIONER MCKINNON MELBOURNE, 12 JUNE 2020

Enterprise agreement approval - interaction with the National Employment Standards - whether employees better off overall - agreement approved.

[1] Telstra Corporation Ltd has applied for approval of a single enterprise agreement known as theTelstra Enterprise Agreement 2019-2021. The Agreement will apply to employees who are covered by theGeneral Retail Industry Award 2010and theTelstra Award 2015. The Association of Professional Engineers, Scientists and Managers, Australia, the Community and Public Sector Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia as well as a number of other employee bargaining representatives each support approval of the Agreement, subject to any undertakings that may be considered necessary.

Interaction with the National Employment Standards

[2] The Agreement interacts with matters dealt with in the National Employment Standards in a way that might be said to exclude employee leave entitlements at least in part. There are two specific concerns in this respect: firstly, clause 13.2 of the Agreement limits access to compassionate leave for casual employees to bereavement leave and excludes the separate entitlement to leave in connection with the serious illness or injury of a family or household member. Secondly, clause 26.3 of the Agreement provides for leave entitlements to be calculated in hours rather than days, which for some employees will limit the entitlement to personal/carers' leave in a manner that is inconsistent with the Standards. Undertakings have been given to address each of the concerns. Those bargaining representatives who have expressed a view on the undertakings now support them.

[3] There is an issue in relation to whether the undertaking dealing with accrual of personal/carer's leave goes far enough, because it is does not extend to annual leave and compassionate leave. I have decided to accept the undertaking. It responds to a concern that clause26.3 of the Agreement excludes the Standards in relation to personal/carer's leave, and in particular section 96(1) of the Act, in light of the construction of that section preferred by a Federal Court majority inMondelez v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union1.

[4] The question before the Court inMondelez2as well as its reasoning and conclusions were limited to the construction of provisions of the Act dealing with personal/carer's leave. Some elements of the reasoning inMondelezmight apply equally to annual leave and compassionate leave, but there are also material differences including how the entitlement is expressed (that is, in `weeks' rather than `days' in the case of annual leave) and whether the entitlement is immediate on the happening of an event or is progressively accrued over time (in the case of compassionate leave). The purpose of each form of leave is also different - one for rest and recreation, one for income protection and one to support close family and friends at or near end of life. These differences make the case for treading cautiously in relation to any broader application ofMondelezto other forms of leave.

[5] Ultimately, the concern raised with Telstra about the accrual of leave under the Agreement had its origins in the construction of section 96(1) preferred by the Court inMondelez. The undertaking given by Telstra in this regard addresses my concern. I do not separately hold a concern that the Agreement excludes the Standards in relation to the accrual of annual leave or compassionate leave. As a result, no further or wider undertaking is required.

The better off overall test

[6] The relevant modern awards for the purposes of the better off overall test are theTelstra Award 2015and theGeneral Retail Industry Award 2010.

[7] For the most part, I am satisfied that the Agreement passes the better off overall test. It contains a range of terms and conditions of employment that are more beneficial than the relevant awards including in relation to rates of pay and allowances, shift work arrangements, leave, redundancy, termination of employment and superannuation. Together, these benefits outweigh those differences between the awards and the Agreement that may otherwise cause detriment to employees in particular circumstances, including in relation to arrangements for working night shift.

[8] I am not satisfied that the test is met in relation to Job Family employees with rates of pay attracting a margin of less than 10% above the comparable award rate. For these employees, the margin is insufficient to compensate for the different treatment or removal of a range of entitlements in the Agreement compared to the relevant award. Telstra has given undertakings to address the concern by increasing minimum rates of pay for affected Job Family employees and improving their terms and conditions of employment in relation to first aid, meal and essential customer servicing allowances, part-time overtime, meal breaks for shiftworkers and minimum engagements when overtime is worked. Some of the undertakings apply generally to Job Family employees where it is necessary to remedy concerns that have broader application.

[9] I am also not satisfied that the better off overall test is met for non-retail casual employees covered by the Telstra Award. Under the Telstra Award, the concept of `overtime' does not extend to casual employees. That is not to say that there is a prohibition on the working of additional hours by casual employees - it is just that the award does not recognise such work as overtime and does not provide for it to be paid at penalty rates. The same approach applies under the Agreement, which also does not restrict the working of additional hours by casual employees which are paid at the ordinary casual rate of pay. In my view, the two instruments are equivalent in that respect and no detriment arises as between the Agreement and the Telstra Award. However, meal breaks and certain allowances that would be payable under the Telstra Award are displaced by the Agreement and undertakings have been given to address the concern. Some of the undertakings apply more broadly than only to non-retail casual employees where necessary to remedy those concerns.

Conclusion

[10] With the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[11] The undertakings from Telstra have been given in accordance with s.190 of the Act and copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be terms of the Agreement.

[12] The Agreement is approved and will operate from 19 June 2020. The nominal expiry date of the Agreement is 30 September 2021.

[13] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia is covered by the Agreement.

[14] The Community and Public Sector Union is covered by the Agreement.

[15] The Association of Professional Engineers, Scientists and Managers, Australia is covered by the Agreement.

COMMISSIONER

Appearances:
C O'Grady QCfor the applicant.
D Khatabfor the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
A Nashfor the CPSU, the Community and Public Sector Union.
L Duncanon her own behalf.

Hearing details: 2020. Melbourne (video hearing): May 21. Final written submissions: Applicant, 28 May 2020. Union bargaining Representatives, 4 June 2020. Applicant (in reply), 9 June 2020.

1 [2019] FCAFC 138.
2 See [2019] FCAFC 138, [2].

Annexure A

Telstra 2020 EBA Undertakings.


Home
Database Home