2. The Telstra Award 2015 (Telstra Award) will cover Amplitel and non-transferring employees as defined in section 314(2) of the FW Act who perform, or are likely to perform, the transferring work for Amplitel as defined in section 311(1) of the FW Act. See more under the EBA Page

BACKGROUND TO APPLICATION

1. The Telstra Agreement and the Telstra Award presently cover Telstra Corporation Limited (TCL).

2. After an impending corporate restructure (originally announced on 12 November 2020), it is proposed that employees of TCL whose employment is covered by the Telstra Agreement and the Telstra Award will ultimately be employed by three different, related entities: Telstra Limited, Telstra InfraCo Limited (the renamed TCL) and Amplitel (collectively, Telstra).

3. The transfer of employees to Telstra Limited (where it is proposed that the vast majority of employees will be employed) is subject to approval of the restructure by TCL shareholders and the Federal Court, anticipated to occur in the first quarter of 2022. The transfer of employees to Amplitel is not subject to either Court or TCL shareholder approval of the restructure and will occur in December 2021.

4. In June 2021, TCL announced the sale of a 49% interest in its mobile tower business which will be operated by Amplitel. The sale completed on 1 September 2021.

5. By operation of sections 311 and 313 of the FW Act, there is a "transfer of business" from TCL to Amplitel:

a. Amplitel has made unconditional offers of employment to TCL employees who are presently covered by the Telstra Award and employed in classifications in the Telstra Agreement (Transferring Employees);

b. Amplitel is an associated entity of TCL, because they are related bodies corporate as defined in the Corporations Act 2001 (Cth);

c. the Transferring Employees will cease employment with TCL and commence employment with Amplitel on or around 9 December 2021;

d. the Transferring Employees will perform the same or substantially the same work for Amplitel as they performed for TCL (Transferring Work);

e. the Transferring Employees are covered by "transferrable instruments" within the meaning of section 312(1) and (2) of the FW Act (in the form of a named employer award (the Telstra Award) and enterprise agreement (the Telstra Agreement));

f. the Telstra Agreement and the Telstra Award will cover Amplitel and the Transferring Employees after they commence employment with Amplitel while they perform the Transferring Work.

6. Amplitel seeks orders pursuant to section 319(1)(b) of the FW Act that any non-transferring employees who perform, or are likely to perform, the Transferring Work will also be covered by the Telstra Agreement and the Telstra Award in their employment with Amplitel.

7. Amplitel is not covered by an enterprise agreement. If the orders are not made, new employees of Amplitel who perform the Transferring Work will not be covered by the Telstra Award and the Telstra Agreement but would instead be covered by one of three other industry or occupational awards on different terms and conditions of employment. This means that Amplitel employees performing the same work, in the same positions, will not have a single safety net of terms and conditions, and that the applicable safety net and terms and conditions will depend upon when they commenced employment within the Telstra enterprise as it exists from time to time.

8. It is desirable for non-transferring employees to be covered by the Telstra Award and the Telstra Agreement for reasons including that:

a. the Telstra Award and the Telstra Agreement both contain terms and conditions which are more generous than the terms and conditions in the industry and occupational awards that would otherwise apply to their employment. For example, the Telstra Award contains an entitlement to 15 days' paid personal/carer's leave compared to an entitlement to 10 days' paid personal/carer's leave under the National Employment Standards and the applicable modern awards. The Telstra Agreement contains an entitlement to 16 weeks' paid parental leave, three days of paid compassionate leave on each occasion and a maximum redundancy benefit of 80 weeks' pay;

b. if Amplitel is required to administer multiple instruments to employees performing the same work, it will increase the complexity of its employment arrangements. It will, in effect, be required to run at least two and possibly as many as four payroll systems;

c. the Telstra Agreement contains more generous minimum rates of pay than the industry and occupational awards that apply to non-transferring employees. This may have the result that non-transferring employees are remunerated differently for the same work performed at the same time; and

d. the Telstra Award and the Telstra Agreement will have a positive impact on the productivity of the Amplitel workplace and employee engagement as it would mean that employees are subject to uniform terms and conditions and rates of pay. In this respect, a Full Bench of Fair Work Australia has previously determined that it was appropriate to make a modern enterprise award covering the Telstra enterprise, having regard among other considerations to the historical development of a safety net tailored to Telstra's history and circumstances.