Telstra Corporation Limited

[2022] FWCFB 124

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.158—Application to vary or revoke a modern award

Telstra Corporation Limited

(AM2021/85)

Telecommunications services
DEPUTY PRESIDENT MASSON DEPUTY PRESIDENT MILLHOUSE CoMMISSIONER O’NEILL	MELBOURNE, 12 JULY 2022

Application to vary the Telstra Award 2015 – award coverage – award flexibility – award varied.

On 9 December 2021, the Commission received an application from Telstra Corporation Limited (TCL) to vary the Telstra Award 2015 (Telstra Award). TLC’s application sought to vary the coverage of the Telstra Award (clause 3), clarify the operation of the casual employment clause (clause 10.3) and introduce flexibility arrangements to the hours of work and meal break provisions (clauses 19 and 21.1 respectively).

On 26 May 2022 we issued a decision and draft determination ([2022] FWCFB 46) (the May decision). In this decision, we indicated that we were satisfied for the purposes of section 157 of the Act that the variations proposed by TCL with respect to coverage and casual employment were necessary to achieve the modern awards objective.

With respect to preferred hours arrangement, multiple discrete periods of work and ad-hoc meal break variations (the flexibility variations) we outlined our provisional views as follows:

· Preferred hours – provisional view that the variations proposed to clauses 19.6, 19.14 (and consequential amendments to clauses 10.2 and 20.4) with the additional safeguard set out at [88] of the May decision are necessary to achieve the modern awards objective;

· Multiple discrete periods – provisional view that the variations proposed to clause 19.15 (and consequential amendments to clauses 19.2, 19.7, 19.8, 19.9 and 20.6) with the additional safeguards set out at [114] and [115] of the May decision are necessary to achieve the modern awards objective; and

· Ad hoc meal breaks – provisional view that the proposed variation to clause 21, with the additional protection set out at [125] of the May decision would achieve the modern awards objective.

We invited responses from interested parties as to our provisional views and additional modifications and provided a draft variation determination for consideration. Responses were due to be filed by 10 June 2022.

Responses were received from Telstra and Communications, Electrical and Plumbing Union of Australia (CEPU).

Telstra indicated that it did not wish to make further submissions in relation to the matters raised in our decision and supported the making of the determination in the terms proposed in the draft determination.

The CEPU indicated that it supports the modifications proposed by us at [88], [114], [115] and [125].

Given the views of the parties, we confirm our provisional views with respect to the flexibility variations. We are satisfied that the variations proposed, with the modifications made by us, are necessary to achieve the modern awards objective.

Accordingly, all variations in this matter have been determined and a final variation determination will issue in the terms set out in the May decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide an application by Telstra Corporation Limited to vary the Telstra Award 2015. The application sought to change the award’s coverage, clarify the operation of the casual employment clause, and introduce flexibility arrangements for hours of work and meal breaks. The Fair Work Commission, consisting of Deputy President Masson, Deputy President Millhouse, and Commissioner O’Neill, issued a decision on 26 May 2022, outlining provisional views on the proposed variations. Responses were received from both Telstra and the Communications, Electrical and Plumbing Union of Australia (CEPU). Telstra supported the making of the determination in the terms proposed in the draft determination, while CEPU indicated support for the modifications proposed by the Commission.
The central legal issues before the Fair Work Commission were whether the proposed variations to the Telstra Award 2015 were necessary to achieve the modern awards objective, and if so, whether any additional modifications were required. The Commission needed to consider the views of both Telstra and CEPU in reaching its decision. The Commission examined the proposed variations in light of the modern awards objectives and assessed whether they were necessary to achieve those objectives. The Commission also considered the additional modifications proposed in its May decision, as well as the views of the parties on these modifications. The Commission concluded that the proposed variations, with the additional modifications, were necessary to achieve the modern awards objective.

The Fair Work Commission confirmed its provisional views with respect to the flexibility variations and determined that the variations proposed, with the modifications made by the Commission, were necessary to achieve the modern awards objective. The Commission was satisfied with the additional safeguards it had set out in its May decision, which addressed concerns raised by both parties. The Commission considered the responses from Telstra and CEPU, which supported the making of the determination in the terms proposed in the draft determination. Accordingly, the Fair Work Commission determined that all variations in this matter would be made in the terms set out in the May decision. A final variation determination will issue in accordance with these terms. The Court determined that the variations proposed by Telstra Corporation Limited, with the modifications made by the Commission, were necessary to achieve the modern awards objective and that the additional safeguards were sufficient to address the concerns of both parties. The final variation determination will be issued in the terms set out in the May decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established