CWU T&S FACT SHEET NO 5
TERMINATION OF AWA AND ITEA SERIES
BULLETIN 2021/17 - 9 May2021
TELSTRA AWA TERMINATION
We received some complaints from members who have had their AWAs terminated. Some members have had a choice of Job Family and Workstream. Telstra has set out the pay offers available to these staff. We wrote to Telstra seeking explanations. Their response below.
TELSTRA RESPONSE - AWA TERMINATION
As you know, the Workstream and Job Family models have entirely different remuneration constructs.
The minimum fixed remuneration (FR) for each Workstream and band under the Workstream model is outlined in Appendix B of the Telstra Enterprise Agreement 2019-2021 (Telstra EA). It does not include an incentive component. In contrast, the Job Family model enables Telstra to consider market rates, each employee's individual performance, skillset and experience to determine an appropriate rate of pay for each member of the team - and to differentiate where it makes sense. It also provides Telstra will the ability to reward employees for strong performance through incentive arrangements.
The majority of employees who are part of the AWA/ITEA process were not entitled to a dual offer. Where they were, we provided offers that were:
+ in accordance with the Telstra EA, and
+ in accordance with how remuneration can be constructed under each work model.
I have provided responses to your questions below:
Question 1: The amounts offered in workstream are significantly less than then their current pay. How is this justified?
Employees entitled to a Workstream offer were provided the appropriate FR for their Workstream and band in accordance with Appendix B of the Telstra EA. Only a small number of employees had a Workstream minimum FR that was lower than their current FR under their AWA/ITEA.
Employees in this situation would have also received a Job Family offer which would have either maintained, or in some cases increased, their remuneration under their AWA/ITEA.
Question 2: Telstra offered a guarantee that staff would not be worse off after termination of the AWA. Does Telstra stand by that guarantee?
We have been clear with employees since announcement that an offer under the Workstream model may result in an increase or decrease to their current remuneration. This was also discussed with you and the rest of our unions in our initial meeting in January. I have attached the email we sent you, which included the FAQs available to employees which explicitly addressed this point (see question 24).
We maintain that employees are not disadvantaged overall, as employees eligible to receive a Workstream offer are also eligible to a Job Family offer. Under the Job Family model, their remuneration would be maintained (and in some cases increase).
Question 3: How can Telstra offer a lower salary to Workstream staff for the same job?
All Workstream employees receive the same FR if they are performing the same job, in accordance with Appendix B of the Telstra EA. Conversely, the Job Family model considers the market as well as an employee's skills, experience and performance when determining an appropriate rate of pay.
Question 4: Is this the deliberate Telstra policy?
It is the organisation's long held position that we want to remunerate and incentivise employees based on their performance (pay for performance), which is the construct under the Job Family model.
Where an employee received a dual offer, we have offered the Workstream minimum FR rate and also provided the employee with a competitive Job Family offer. However, only a small number of AWA/ITEA employees received a Job Family offer where the FR was higher than the Workstream minimum FR offer they were entitled to.
Question 5: Is this the action of managers failing to understand the EBA provisions and basic discriminatory action?
This process has been managed by a central project team with input from our COEs and the business. We strongly reject any claims that this process is discriminatory. Employees have been provided offers in accordance with the Telstra EA Job Family and Workstream models.
BULLETIN 2021/16 - 2 MAY 2021
TELSTRA AWA ITEA OFFERS
Members on AWAs and ITEAs received letters this week with their offers to replace the individual contracts. We have several complaints already, and we will address these.
The offers are disturbing. Telstra is effectively removing the choice by offering Workstream salaries about 15% lower than offered under their favoured Job Family for the SAME job.
Telstra stated:
We provided our AWA/ITEA employees with a letter outlining their terms and conditions (including pay) under the Telstra EA. These terms and conditions will only apply following the termination of their AWA/ITEA, which is on 6 July 2021.
Employees who were eligible to receive both a Workstream and Job Family offer were provided information on both work models and have been asked to make an election on which work model they wish to move to by 9 May 2021.
So far we have been seen a positive response to these letters.
BULLETIN 2021/13 - 11 APR 2021
TELSTRA AWA/ITEA DEVELOPMENTS
With the termination of the AWAs, Telstra will need to spell out the new terms and conditions of employment. It should be straightforward. But there are problem areas. Make sure you read the Full Bench decision (below), particularly paragraph 14. Classification and salary may be a problem.
TELSTRA AWA/ITEA - WORKSTREAM OR JOB FAMILY
The EBA defines Workstream Employees as follows
You are a Job Family Employee if you are not a Workstream Employee.
You are a Workstream Employee if:
FWC TERMINATES TELSTRA AWA
Members were advised this week that their AWAs have been terminated. The Telstra letter stated:
On 7 April, the Fair Work Commission approved our application to terminate our Australian Workplace Agreements (AWAs) and Individual Transitional Employment Agreements (ITEAs).
As a result, your AWA/ITEA will terminate on 6 July 2021, and the terms and conditions of the Telstra Enterprise Agreement 2019-2021 (Telstra EA) will apply instead.
This process is about standardising our employment arrangements so that everyone in Bands 2 - 4 (excluding lawyers) will be covered by the Telstra EA. You will not be disadvantaged overall by transitioning to the Telstra EA and most of your terms and conditions will not change.
You'll be moving to the Job Family model of the Telstra EA
Under the Telstra EA, there are two work models - the Workstream model and the Job Family model.
Based on your current role and agreement expiry date, you'll move to the Job Family model. However, this may change if you move roles or your workcode changes before your AWA/ITEA terminates. If you'd like more information on the Job Family and Workstream work models, please refer to AskHR.
Next steps and support
In the week of 26 April, you'll receive a letter that provides you with an overview of your pay and conditions under the Telstra EA. It will also contain any AWA/ITEA terms and conditions that we'll continue to recognise.
In the meantime, we encourage you to read the Telstra EA to better understand the terms and conditions which will apply to you from 6 July 2021.
FWC TERMINATES TELSTRA AWA - DECISION
We have set out the full decision in our Fact Sheet No 5. The Full Bench Stated:
[11] It is apparent from the terms . of Schedule 3 to the Transitional Act that the Commission's role is quite limited. The FWC must approve the termination . if it is satisfied that:
* the IABTI applies to Telstra and the employee
* Telstra made the declaration required.
* Telstra gave the employee the notice.,
regardless of whether or not the employee to whom the IABTI applies agrees to the termination.
FAIR WORK DECISION - APRIL 2021
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Sch. 3, Item 19 - Declaration for unilateral termination with FWC approval to terminate individual agreement
Application by Telstra Corporation Limited T/A Telstra
(AG2021/399)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT ASBURY
COMMISSIONER HAMPTON MELBOURNE, 7 APRIL 2021
[1] On 4 March 2021, we issued a Decision1
(the 4 March 2021 Decision) concerning an
application made by Telstra Corporation Limited T/A Telstra (Telstra) pursuant to item 19 of
Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act
2009 (the Transitional Act) to unilaterally terminate 3,516 individual agreement-based
transitional instruments (IABTIs or transitional instruments).
[2] Item 19 of Schedule 3 to the Transitional Act provides for the unilateral termination of
IABTIs or transitional instruments that have passed their nominal expiry date.
[3] An employer or employee who wants to terminate a transitional instrument to which
they are a party may:
[4] An application is made using Form F29 (see r.8(2)).
[5] At least 14 days before the day on which the application is made, the employer or
employee must give the other party a notice that:
[6] The FWC must approve the termination if the FWC is satisfied that:
[7] If the FWC approves the termination, the transitional instrument terminates on the 90th
day after the day on which the FWC makes the approval decision: item 19(5).
[8] At [9] of the 4 March 2021 Decision, we expressed the provisional view that Telstra
had complied with the requirements of items 19(2) and 19(3) of Schedule 3 to the Transitional
Act. We directed Telstra, where practicable, to provide each employee listed in the schedule
to the application with access to a copy of our Decision.
[9] Any submissions opposing our provisional views were to be filed by 4pm on 15
March 2021 and any submissions in reply filed by 4pm on 18 March 2021.
[10] Fourteen employee submissions were received, relating to 24 IABTIs (the
Submissions). A summary of those submissions can be found here. On 18 March 2021,
Telstra filed a reply submission.
[11] It is apparent from the terms at item 19 of Schedule 3 to the Transitional Act that the
Commission's role is quite limited. The FWC must approve the termination of an IABTI
identified in the schedule to the Application if it is satisfied that:
[12] We made it clear in the 4 March 2021 Decision that submissions responding to our
provisional view must be directed to the matters which are relevant to our determination of
Telstra's application, namely the matters set out in the three dot points above.
[13] The 14 employee submissions are not directed to the matters which are relevant to the
Commission's decision. There is nothing in the Submissions which opposes the
Commission's provisional view that Telstra has complied with the requirements in the
Transitional Act.
[14] We note that in its reply submission Telstra addresses the various issues raised in
submissions by the employees to whom an IABTI applies, as follows:
1. Lack of communication and uncertainty regarding future entitlements
Telstra took a number of steps to communicate with Impacted Employees regarding the
proposed termination of their IABTIs and their future entitlements:
2. Redundancy entitlements
Some Impacted Employees have expressed concerns that their redundancy entitlements will be
subject to change when the current enterprise agreement is renegotiated.
At the outset, we note that not all IABTIs contain identical redundancy provisions. Some
IABTIs only provide for severance payments "determined in accordance with Telstra policy"
as varied from time to time. Where this is the case, the Telstra EA (and any replacement
agreement) would provide employees with greater certainty regarding their severance
entitlements in the event that they are retrenched by Telstra.
We note also that Impacted Employees will be able to fully participate in the bargaining
process for any new enterprise agreement that will apply to them. All employees that will be
covered by any new proposed agreement will have the opportunity to approve the agreement
by voting for it.
3. Personal leave entitlements
The Telstra EA and the Telstra Personal (Sick and Carer's) Leave Policy provide for 15 days
paid personal leave for each year of continuous service.
There is variation between personal leave provisions in IABTIs depending on when they were
made. Some IABTIs provide for 10 days personal leave for each year of continuous service
with additional personal leave at Telstra's discretion while others provide for reasonable paid
sick leave if an employee is unable to attend work as a result of a genuine illness or injury. In
each case Telstra has discretion to decide how much additional paid personal/sick leave should
be granted to an employee having regard to all the relevant circumstances. There is no
entitlement to unlimited paid sick leave.
4. Information about termination of IABTIs
Telstra explained to Impacted Employees in the email of 21 January 2021 why it was taking
steps to unilaterally terminate the IA
[15] For our part we would encourage Telstra to continue to engage constructively and
openly with the affected employees regarding the issues they have raised.
[16] In its reply submission, Telstra submits that the Commission should affirm its
provisional view and approve the termination of IABTIs on the basis that the requirements
under item 19(4) of Schedule 3 to the Transitional Act have been met. We agree that all
aspects of item 19(4) have been met and accordingly that the Commission must approve
termination of the IABTIs.
[17] There are 3 procedural matters. First, the Form F29 application and covering letter
make clear that the application is made under item 19(3) of Schedule 3 to the Transitional
Act, however the Schedule itself does not do so. We will dispense with the rule 27(3)(b)(ii)
requirement in relation to the Schedule under rule 6(1) of the Fair Work Commission Rules
2013 (FWC Rules).
[18] Second, rules 27(2)(a) and (b) of the FWC Rules require respectively that an
application under item 19 of Schedule 3 to the Transitional Act be accompanied by a
declaration made by a person authorised to do so setting out the basis upon which the
Commission can be satisfied that the requirements of items 19(2) and (3) of Schedule 3 to the
Transitional Act have been met, and by a copy of the written declaration that was made in
accordance with item 19(2). The declaration made on behalf of Telstra by Mr Darren Fewster
is directed to the requirements of both rules 27(2)(a) and (b). To the extent that lodging a
single declaration is inconsistent with the requirements of rule 27(2), we dispense with those
requirements.
[19] Third, there are a small number of errors in the Schedule. These are explained in email
correspondence from Telstra dated 25 March 2021. We propose to amend the Schedule in
accordance with the advice received from Telstra.
[20] We confirm our provisional view and approve the termination of the IABTIs operative
from 7 April 2021.
[21] The termination of the IABTIs will take effect on 6 July 2021, being the 90th day after
the day on which we have made our approval decision.
PRESIDENT
PR728374
1 [2021] FWCFB 1191
2 There are no additional requirements included in the Fair Work (Transitional Provisions and Consequential
Amendments) Regulations 2009.
BULLETIN 2021/09
regardless of whether or not the employee to whom the IABTI applies agrees to the
termination.
`We appreciate, however, that employees to whom an IABTI applies (Impacted Employees)
may have some concerns and questions relating to the proposed termination of IABTIs. We
have set out under the relevant headings below a brief response to the concerns outlined in the
Submissions. We intend to continue our discussions with employees with a view to addressing
those concerns and any other questions and concerns raised by Impacted Employees.
Telstra notes that one of the Impacted Employees has expressed concerns that their Australian
Workplace Agreement (AWA) could not be located. Telstra received a request for a copy of
that employee's AWA on 5 March 2021. As the AWA dated back to 2001 Telstra did not have
an electronic copy of the AWA. A hard copy was requested from archives and has now been
sent to the employee.
AWA/ITEA TERMINATION
Below is the full decision of the FWC following an application by Telstra to terminate all AWAs and ITEAS. Telstra is required to advise you this week. Members should contact me if you have any questions.
MEMBERS COVERED BY AN AWA/ITEA - CLARIFICATION
The EBA defines Workstream Employees as follows
You are a Job Family Employee if you are not a Workstream Employee.
You are a Workstream Employee if:
MEMBERS COVERED BY AN AWA/ITEA - MORE INFORMATION
Following a meeting with Telstra, we received more detail. Here are a number of extracts. The next significant development will be the issue of letters in mid-April.
Breakdown of AWAs/ITEAs per Functional Unit
Functional Unit Approx. # per Functional Unit Consumer and Small Business 500 Global Business Services 650 Networks and IT 1200 Product and Technology 60 Strategy and Finance 70 Sustainability, External Affairs and Legal 20 Telstra Enterprise 550 Telstra InfraCo 400 Transformation Communications and People 60
Employees eligible to move to Workstream - process for job mapping to Workstream
For those employees eligible for a Workstream offer, we have set up a central project team for the purposes of correctly mapping all employees to their appropriate workstream and band.
The workstream and band is determined by assessing the work an employee is required to perform and mapping this to Telstra's core job descriptions. To determine the correct core job description (and corresponding workstream and band), we will:
- utilise Telstra's Career Framework and our current job profiles as a preliminary step;
- draw on our existing understanding of these areas and the work performed by roles in these areas;
- leverage the expertise of our remuneration team, who understand Telstra's job evaluation and classification system; and
- engage business stakeholders, including senior leaders, functional design leads, and one-up managers of the affected employees, to assess day to day activities.
The letters provided to employees in Mid-April will reference an overview of the terms and conditions of the Telstra EA. For some employees, these letters could also reference certain conditions under an employee's AWA or ITEA which Telstra is committing to recognise.
Once the AWA or ITEA is terminated, the Telstra EA applies, and its terms and conditions are enforceable through that instrument. For those where the letter is also recognising certain AWA or ITEA conditions, the letter will make it clear that those terms will be in addition to any benefits under the EA and it will form part of an employee's future employment conditions at Telstra Corporation. These terms will be enforceable. This is no different to other instances where we provide employees certain additional benefits, for example paying for training/courses through our Study Assistance program. We note that if Telstra Corporation were to fail to comply with any terms in the letter, employees would also be able to rely on various legal claims (for example, the doctrine of estoppel) to seek to enforce the terms in the letter.
BULLETIN 2021/04
31-01-21 MEMBERS COVERED BY AN AWA/ITEA - SOME FACTS
We met with Telstra this week to discuss the unilateral termination of all AWAs and ITEAs. We learned that about 2,500 staff are involved.
Once terminated, you will revert to the EBA. Telstra says
Telstra will send an advice to you in mid April 2021 setting out your conditions, including their offer to you under Workstream (if you have that option) and their offer to you under Job Family.
Telstra is saying that it is not looking to disadvantage you and that pay and conditions will not be reduced.
When terminating the AWA/ITEAs, the FWC will only check that all boxes have been ticked in the process. The FWC will not address the merits if an argument exists.
The terminations are not likely to occur until June or July.
31-01-21 MEMBERS COVERED BY AN AWA/ITEA - WHAT IS COMING?
We and the Vic T&S Branch (and CPSU) had a number of questions. Here are our observations:
MEMBERS COVERED BY AN AWA/ITEA - CLARIFICATION
The EBA defines Workstream Employees as follows
You are a Job Family Employee if you are not a Workstream Employee.
You are a Workstream Employee if:
BULLETIN 2021/03
26-01-21 MEMBERS COVERED BY AN AWA OR ITEA
The Telstra notice has raised concerns from members on AWA and ITEA conditions. We have not been consulted on this as yet but will seek immediate talks. The EBA gives you far more definite conditions compared to an AWA. But the EBA is under threat as you will be moved to a subsidiary this year. More importantly, your salary and superannuation needs to be protected. We will seek more info on this. Despite the Telstra language, you can object to the termination of your AWA or EBA.
26-01-21 MEMBERS COVERED BY AN AWA OR ITEA - CURRENT POSITION
A number of members are still covered by an AWA or ITEA. These members are not covered by the EBA. All AWA/ITEAs have passed their nominal expiry dates - a number of years ago. Under current law, the AWA/ITEAs can be terminated by consent of both parties, or unilaterally in certain circumstances. A number of members were on AWAs and have terminated the agreements. Telstra has not opposed applications by members.
The Liberal Government recently introduced a new package of controversial laws. In it is a proposal to cancel these AWA/ITEA instruments by July 2022. Once cancelled, you will be covered by the EBA and Award. These laws have not been passed and are likely to be strongly opposed unless amended.
26-01-21 MEMBERS COVERED BY AN AWA OR ITEA - TELSTRA PROPOSAL
Telstra has advised members on an AWA or ITEA that Telstra wished to terminate those agreements immediately. Telstra said (in part):
We'll soon ask the Fair Work Commission to terminate your AWA/ITEA and transition you to the Telstra EA.
We've made the decision to move you to the Telstra EA with its industry leading terms and conditions.
We'll keep you informed as we progress. Part of this will be providing you with an overview of your terms and conditions under the Telstra EA (which would apply following the termination of your AWA/ITEA). However, day-to-day you can expect minimal change - your pay won't be reduced, and your span of hours and hours of work will be the same. And depending on your role and when your AWA/ITEA expired, you may be able to choose from the Job Family or Workstream model of the Telstra EA - we'll let you know what your options are and what they mean for you as we proceed.
As you know, by the end of this year our intent is to have restructured Telstra into three separate legal entities within the Telstra Group - InfraCo Fixed, InfraCo Towers and ServeCo. While this doesn't mean there will be any change to our management structure or the way we work today, if the restructure proceeds, you may be employed by a different entity within the Telstra Group.
VIP - CONTACTING US
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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