Telstra Corporation Limited

[2022] FWCA 1719

[2022] FWCA 1719

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Telstra Corporation Limited

(AG2022/1328)

Telstra Retail Stores Agreement 2022-2024

Telecommunications services
COMMISSIONER MCKINNON	SYDNEY, 27 MAY 2022

Application for approval of the Telstra Retail Stores Agreement 2022-2024.

1. Telstra Corporation Limited (Telstra) has applied for approval of a single enterprise agreement known as the Telstra Retail Stores Agreement 2022-2024 (the Agreement). The Agreement will cover Telstra, Fone Zone People Pty Ltd (Fone Zone), employees of Telstra and Fone Zone who are principally employed in Telstra or Fone Zone Retail Stores, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the CPSU, the Community and Public Sector Union (CPSU).

1. The application is also made on behalf of Fone Zone, who is covered by the Agreement as a subsidiary of Telstra currently being integrated into Telstra’s Retail function. In this respect, Telstra and Fone Zone are single interest employers. The Agreement will operate to the exclusion of modern awards.

1. Only one Form F17 declaration has been made in support of the application for approval, by Telstra on its own behalf and on behalf of Fone Zone. While not strictly in compliance with rule 24(1) of the Fair Work Commission Rules 2013, I waive compliance with the requirement to file two separate declarations. In this particular case, it is a matter of form rather than substance, noting the relationship between the two entities and Telstra’s role as bargaining representative for Fone Zone in relation to the Agreement.

1. The CPSU supports the application and wishes to be covered by the Agreement. However, the CPSU raises six matters that may mean the Agreement does not pass the better off overall test. The relevant modern award for the purposes of the better off overall test is the General Retail Industry Award 2020.

1. The CPSU submits the Agreement is less beneficial than the Award for part-time employees because under clause 10.5 of the Award, part-time employees have agreed fixed hours of work and are entitled to overtime for work in excess of their guaranteed hours of work. In contrast, clause 16.2 of the Agreement provides for part time employees to have predictable but not fixed hours of work, which means that additional agreed hours are payable at ordinary rather than overtime rates.

1. Secondly, the CPSU submits that rostering provisions of the Agreement may not leave employees better off overall, because there are no maximum rostered days on and minimum rostered days off under the Agreement, as there are in clause 15.7 of the Award. Clause 15.7 provides for employees to be rostered no more than 5 days per week and have either 2 consecutive days off per week or 3 consecutive days off over 2 weeks. The Agreement does not guarantee the same periods off roster.

1. Thirdly, the CPSU submits that there is no equivalent in the Agreement to clause 16.2 of the Award, which provides for paid breaks of 10 minutes after shifts longer than 7 hours.

1. Fourthly, the CPSU submits that the Agreement contains a less beneficial minimum break between shifts (10 hours between ordinary hours of work, compared to 12 hours between periods of work in clause 16.6 of the Award).

1. Fifthly, the CPSU submits that higher duties allowance under the Agreement is less beneficial than the Award, which provides at clause 17.5 of the Award that the allowance is payable for hours worked of less than 2 hours, and for a whole shift if more than 2 hours is worked as higher duties. Under clause 58.1 of the Agreement, 4 weeks must be worked at the higher classification before higher duties allowance is payable.

1. Finally, the CPSU submits that under clause 21.3(b) of the Award, time off taken instead of payment for overtime is taken for a time that is equivalent to the overtime payment that would have been made, instead of the hour for hour basis provided under the Agreement (clause 21.3). Where time off is accrued and later paid out, it is payable at overtime rates both under the Agreement and the Award.

1. The CEPU supports of the Agreement and wishes to be covered by it. The CEPU notes the less beneficial terms in the Agreement compared to the Award as declared by and on behalf of Telstra and Fone Zone in the Form F17 declaration.

1. The Agreement contains many more beneficial terms than those applicable under the Award. Rates of pay in the Agreement are between 10.38% to 31.97% above the Award. Full time employees have a shorter working week and there are wider consultation obligations, new gender affirmation leave, 15 days personal/carer’s leave, 20 days paid domestic violence leave, 3 days compassionate leave, 1 additional day of leave each year, more beneficial Sunday and public holiday penalties, some more beneficial overtime weekend penalties, emergency work penalties, up to 16 weeks paid parental leave, payment of superannuation during parental leave, more generous redundancy and retrenchment benefits, maintenance of salary on transfer to a lower role, backdating of continuity of service after conversion from casual to permanent employment, the option of salary packaging, paid delegates leave, assistance to gain recognition of prior learning, full wages for employees with a disability instead of the supported wage system, higher first aid and meal allowances and no minimum notice of termination required from employees.

1. It is true that some of the terms and conditions of employment in the Agreement are less beneficial in the Agreement than the Award. These include some less beneficial redundancy terms, no guarantee of payment of superannuation on all forms of paid leave or while absent on worker’s compensation or due to work-related illness or injury, no special clothing or laundry allowance, no guarantee that final pays will be made within 7 days, incorporation of annual leave loading into fixed remuneration, no minimum notice period to take annual leave during a shutdown of operations, simplified annual leave provisions, no minimum period of recall to duty, wider span of ordinary hours, limited capacity to substitute public holidays, part-time additional hours without the payment of overtime, 10 hour maximum daily shifts and less prescriptive rostering arrangements, higher duties only after four weeks and no second overtime meal allowance.

1. On balance, I am satisfied that that the Agreement passes the better off overall test. The more beneficial terms of the Agreement outweigh the detriments that might accrue to employees in the range of circumstances identified above, including for part-time employees.

1. The Agreement was made after a bargaining period of almost 9 months, during which time the scope of the Agreement expanded to include Fone Zone and its employees. This triggered a new notification time and the issue of further notices to employees. There was significant work done to ensure that regular communication with employees was comprehensive and clear. Bargaining also involved the CEPU, the CPSU and two employee bargaining representatives. More than half of the approximately 3000 employees who are covered by the Agreement participated in the vote and the Agreement was approved by a substantial majority of those who voted. 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 June 2022. The nominal expiry date of the Agreement is 30 September 2024.

1. The CPSU is covered by the Agreement.

1. The CEPU is covered by the Agreement.

COMMISSIONER

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