C0015/498, Transcript of Proceedings [2001] AIRCTrans 2211 (31 August 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

C No 154 of 1998

SECURITY OFFICERS (WESTERN AUSTRALIA)
INTERIM AWARD 1996

Application under Item 51 Review Schedule 5
Transitional Workplace Relations and Other
Legislation Amendment Act 1996 re
Award simplification

PERTH

10.07 AM, WEDNESDAY, 15 AUGUST 2001

Continued from 14.8.01

PN664

THE SENIOR DEPUTY PRESIDENT: Good morning. I note there are no changes in appearances. Mr Ridley.

PN665

MR RIDLEY: Thank you, Your Honour. We've had a brief discussion in the last couple of minutes and with obviously your consideration. What we are proposing to do is something along the following lines, that rather than I give a fully sort of comprehensive submission at this stage, that I give an overview for the purposes of guiding the Commission in terms of what the Union is actually seeking. That brief submission, if that was acceptable to you, would spare the details in terms of reliance on cases and authorities, etcetera, but it would just be of assistance, I think, in terms of where the Union is seeking to go. Mr Uphill was - then suggested perhaps it would be useful, likewise, for him to give a similar such submission verging on the brief.

PN666

Now, the principal objective of all of this is to try to get all the witnesses out of the way today which means that we can then hopefully avoid the possibility of having to reconvene for witnesses. The result would then be, if we were to achieve that aim, and I would hope that that is achievable today, that we would be proposing perhaps to have submissions done in writing once the witness testimony has been concluded today. Now, obviously, you will need to hear from the other parties but that was certainly something that I was getting an impression from our brief discussion before we convened today.

PN667

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Uphill.

PN668

MR UPHILL: Your Honour, I don't have objection to that course of action in principle, however, I want to hear Mr Ridley's submissions and to have his case concluded other than for a right of reply. So, there needs to be some extensive submissions from him, in my view, before our case commences, and that includes reference to the case law that he is going to refer to and that is said because the last thing I want to have is the possibility of Mr Ridley using a right of reply to introduce new matters or cases that clearly I don't have an opportunity to respond to. So, provided there is a detailed submission from Mr Ridley, what I would then propose is that I would make submissions to you, I think that's useful so you understand where we're coming from. I would then propose to call the one witness I have. All of that should take me somewhere between an hour, not more than two hours, and then it's up to Mr Clarke to present his case, of course.

PN669

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Clarke, what's your view on how we progress the matter from here?

PN670

MR CLARKE: Your Honour, I really think we should detour from what was mapped out yesterday, I think if we get Mr Ridley's case completed, and simply concur with Mr Uphill. I don't believe that we will be impaired as far as time goes today in getting through witnesses. I don't anticipate as long with my witnesses and in our case today, your Honour, so I think we will get through the matter. Thank you.

PN671

MR RIDLEY: Can I just make a point of clarification, Your Honour. It certainly was not the intention of the Union to try to use any guile in trying to get the upper hand on the other parties. What I was simply suggesting is that we dispense with the witness testimony today, then if there were to be some acceptance of written submissions, then obviously it would be incumbent upon the Union to provide written submissions, which would then be the conclusion of their case, which would then be responded to by the other parties. So, the suggestion that I might be trying to introduce matters in a written submission process I do take some umbrage to but can very easily be dispensed with in terms of any timetabling of written submissions, if that were to be the view of the bench.

PN672

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Uphill, you were proposing to call two witnesses?

PN673

MR UPHILL: No, only one, your Honour.

PN674

THE SENIOR DEPUTY PRESIDENT: Is that witness available?

PN675

MR UPHILL: He was due to be here at 10 o'clock this morning but in view of the likelihood that Mr Ridley would take up some time this morning, his attendance this morning has been put back to 11 o'clock.

PN676

THE SENIOR DEPUTY PRESIDENT: Right. Mr Clarke, can I presume that you then are looking at calling two witnesses?

PN677

MR CLARKE: Yes, your Honour.

PN678

THE SENIOR DEPUTY PRESIDENT: And are they both available now?

PN679

MR CLARKE: Yes, they are, your Honour.

PN680

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Ridley, what I am proposing that we do is that, rather than ask you to present an outline of your case, that we deal this morning with the witness evidence and dispense with our witnesses, rather than leaving them waiting for what could be the better part of the day, and then hopefully this afternoon we can move straight in to the submissions. If we are not able to conclude the final submissions, then that might be a matter that we consider towards the end of the day in terms of written submissions. But, at least if we work our way through the witness evidence, perhaps starting with the witnesses that Mr Clarke proposes to call, and moving on to Mr Uphill's witness a little later this morning. Does that seem like a reasonable approach?

PN681

MR RIDLEY: I'm certainly happy with that approach, your Honour.

PN682

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Clarke, would you like to call your witnesses?

PN683

MR CLARKE: Yes, your Honour.

PN684

THE SENIOR DEPUTY PRESIDENT: Mr Ridley?

PN685

MR CLARKE: I would like to call Mr John Dennison.

PN686

THE SENIOR DEPUTY PRESIDENT: We just might wait for one moment please.

PN687

MR RIDLEY: Thanks. Sorry, who have you called?

PN688

MR CLARKE: John Dennison.

PN689

MR RIDLEY: Okay, are we going to have Graham out please?

PN690

THE SENIOR DEPUTY PRESIDENT: I'm going to have to adjourn the proceedings for a very short time, I imagine it will only be a minute, if I can do so. Thank you.

SHORT ADJOURNMENT [10.16am]

RESUMED [10.17am]

PN691

THE SENIOR DEPUTY PRESIDENT: Mr Clarke?

PN692

MR CLARKE: Your Honour I would like to call Mr John Dennison to the witness stand please.

<JOHN DENNISON, SWORN [10.18am]

<EXAMINATION-IN-CHIEF BY MR CLARKE

PN693

MR CLARKE: Mr Dennison, can you please state your name, address and occupation?---Yes my name is John Dennison and I live at 26 Lake Valley Drive, Edgewater, and I'm the Managing Director of Olton Pty Ltd.

PN694

Mr Dennison, is your company a respondent to the Security Officers Award Federal?---As MSI Security Services.

PN695

Mr Dennison, what experience have you had in the security industry. Can you give us a brief outline?---Yes, I've been involved in the security industry now for 20 years. I started with Metropolitan Security Services in 1981 in Melbourne, and served in Melbourne for a number of years, both starting off in sales and ultimately ending up in operations as the Manager of Victoria in West Division. I then went to South Australia as the State Manager of MSS Guard Services and spent four years in South Australia as that, was involved at that point in time in the development of security operations for the inaugural Australian Formula I Grand Prix, which entailed up to something like 450 security officers and during that time was also involved in the implementation of the 38 hour week into the Security Industry Award. Sometime later, I think it was 1989, I went to New South Wales as the State Manager of the MSS Security Services in New South Wales, where I was involved in the integration of the Guard and Patrol Divisions into one operation and we had something of the order of about 900 security officers in our operations. During that particular period I was involved in the development of the Award which came about of an Award - I forget the terminology at the time - but it was bringing together various classifications in the Award into the relationship to the Metal Workers classification, I think, and security officers were identified at being 85 per cent and the development of the various classifications of security officers level 1, 2, 3 and 4, which now appear in the Federal Award for Western Australia. And then in 1993 I came across to Western Australia as the State Manager of MSS Security Services here and integrated the guard patrol and alarm operations into MSS Security Services and have been involved both operationally and with CCI and the development of various issues along the way, including the development with the Union of a Green Fields Award or EBA for the introduction of contract security officers into the urban transit system.

**** JOHN DENNISON XN MR CLARKE

PN696

Thank you Mr Dennison.

PN697

Your Honour, I wonder if the witness can be shown an exhibit document MSA1 please?

PN698

THE WITNESS: I probably should add that I took over MSS - MSA in the end of December 1966, to operate as the owner/operator then.

PN699

MR CLARKE: Thank you Mr Dennison.

PN700

Mr Dennison, I take you to the first point of matter - item number 5.1: Accrued Days Off. I don't know if this matter, your Honour, is just a typing error, but I'll get clarification now because in the document I have AI 10W2?

PN701

MR RIDLEY: It is a typing error, your Honour.

PN702

MR CLARKE: Thank you. I move on.

PN703

Mr Dennison, I move to move you to point 6.1(b).

PN704

And I'm wondering if the witness, your Honour, can be handed a document AI 10W2? as well.

PN705

MR RIDLEY: Your Honour, would it be useful if I indicated that the Union has withdrawn that from its amended proposed Award?

PN706

THE SENIOR DEPUTY PRESIDENT: Yes it would thank you Mr Ridley.

**** JOHN DENNISON XN MR CLARKE

PN707

Mr Clarke, can I take it from this that you haven't had discussions with Mr Ridley about the suite of issues that are outlined in MSA1 but such that you are in a position to say which are still in dispute and which are not still in dispute? I'm asking that question because this is an arbitration on the matters that are in dispute. The first two are clearly not any longer in dispute and I am just anxious that we don't spend too much time debating things that are agreed?

PN708

MR CLARKE: No, I just wanted to go through this exhibit and eliminate any matters that we have put up. I haven't had the opportunity since yesterday. I have gone through the documentation and exhibits last night and all I am seeking to do is go through and eliminate the matters on this document, MSA1, so that it is very clear if there's withdrawal or typing errors, so be it, it is clarified and I don't anticipate wasting any time on that and moving on with the other substantive matters.

PN709

THE SENIOR DEPUTY PRESIDENT: Very well.

PN710

MR CLARKE: Mr Dennison, I take you to matter 6.2.3.

PN711

And the matter here, Your Honour, 6.2.6 has been deleted so before I waste any more time with that, certainly clause 6.2.3 refers to:

PN712

Agreement complies with clauses 6.2.4 to 6.2.6 -

PN713

and 6.2.6, I take it, has been deleted.

PN714

THE SENIOR DEPUTY PRESIDENT: There is no 6.2.5 in ALHMU2 and there is no 6.2.6. So is that a matter in dispute Mr Ridley?

PN715

MR RIDLEY: Not as far as I am aware, your Honour.

**** JOHN DENNISON XN MR CLARKE

PN716

THE SENIOR DEPUTY PRESIDENT: So that if in terms of ALHMU 2, we were to amend that document such that we change or delete the words to 6.2.6 as they occur in 6.2.3.

PN717

MR RIDLEY: Thank you your Honour.

PN718

MR CLARKE: Mr Dennison if I may take you to the next matter, 6.2.4(b), where it states that:

PN719

If an employee is a member of a union the union must be given a reasonable opportunity to participate in negotiations regarding the proposed implementation of a facilitative provision. Union involvement does not mean that the consent of the union is required prior to the introduction of an agreed facilitative arrangements.

PN720

Mr Dennison do you have a particular objection to that being included into the award simplification process?---Yes I do, in the form it's - it's written.

PN721

Why is that Mr Dennison?---Because I think that in terms of the facilitative processes it's entirely up to the security officer or employee as to whether he involves the union and been many occasions when there have been discussions and matters that are addressed between the employee and the company. The employee always has had the option to involve the union and I think that prerogative should - should remain. That is the prerogative of the employee whether he actually wants to get the union involved in those particular issues. Not a compulsory involvement.

PN722

Thank you Mr Dennison. I move you now to 7.1.2(e) and (f). On my copy here your Honour I have lines put through 7.1.2(e) and (f). The lines I have put through them I assume means that (e) and (f) are deleted.

**** JOHN DENNISON XN MR CLARKE

PN723

MR RIDLEY: May I just, add a point of clarification, I do recall saying early on in the proceedings yesterday that I apologised for in fact the ruling through. The ruling through was in fact to be removed and the words to were remain, and I remember quite clearly saying that yesterday.

PN724

THE SENIOR DEPUTY PRESIDENT: Mr Clarke I recall Mr Ridley saying that yesterday too. So the underlining remains, indicating that the matters are still in dispute. Those provisions are not deleted.

PN725

MR CLARKE: Thank you, your Honour.

PN726

Mr Dennison, 7.1.2 (e) and (f), do you have a problem, and if so what problem do you have with these two items e and f being included in the award simplification process?---The circumstances of employment, yes I do have a - have a problem with that. The circumstances and nature of employment of security officers are that they are employed to start and finish at the client's premises and most often are operating as security presence, deterrents and what have you as the role implies in a one out situation and firstly it is inappropriate that they be - the work that they are providing on behalf of the client should be interfered with and, secondly in many cases they are in a high security situation and it is inappropriate that other persons be permitted on those sites, and in any event we are unable to, as a third party, to give authority for a third party to enter into the client's premises during the officer's working hours.

PN727

So what is the normal process with step 1, Mr Dennison, in dispute resolution?---Well once again, if the - if the union is involved and I probably need to refresh my memory on the whole of - whole of the process that, there have been some changes to the present award and the present award worked eminently satisfactorily. We haven't as far as I am aware had any problems, so I am trying to assimilate what the difference is between this, this in the award and the need for change but generally speaking we - we follow the dispute resolution procedure, which entails discussion at various levels before the involvement of the - of the union or the invited representative of the employee. If it gets to the stage of the union being involved, the matter is usually addressed at the office of MSA and the union has generally had discussions with the employee, prior to arriving at the company's premises.

**** JOHN DENNISON XN MR CLARKE

PN728

MR CLARKE: Thank you Mr Dennison. I move now to 7.2 (a), (b) and (c). Do you object to (a), (b) and (c) being included in the Award Mr Dennison, if so why?---Yes, in fact I do. Once again I think the present facilities of the award have - have worked quite well and satisfactorily. Those employees who are members of the union in fact pay their dues to the union and one would expect that the union gets them involved from time to time in various issues of development. Over the years, myself in particular, but the companies I have been involved in have - have endeavoured to have a reasonable working relationship with the union and we have, from time to time, facilitated attendance by the job delegate, shop steward, whatever his current terminology is, at certain trade union training courses. But we believe that it should be - each issue needs to be treated on its - its own particular merits. The nature of the industry is such, as I mentioned earlier, that security officers very much work one of, or on their own at client's premises and there are a whole range of those client premises. Traditionally there has been a job delegate that covers the company and we have been, as I have said, in favour of that particular person attending specific courses, but there appears to be a tendency for every second or third security officer to be nominated as a job delegate, and the union seems to be intent on getting the companies to pay for this type of training for a whole plethora of people, which is to our mind totally inappropriate and cost prohibitive. However in a supportive process we have always said that we would endeavour to facilitate the attendance at - of such courses by making - providing adequate notice, by making time available in terms of paid annual leave, allowing the person to take paid annual leave or special unpaid leave, providing sufficient time is made with contact to our guards coordinators - or coordinators to facilitate a relief person.

PN729

Thank you Mr Dennison. I refer you now to point 9, types of employment. Mr Dennison do you object to point 9 and all the other sections under point 9 being admitted to the award, or object to it Mr Dennison?---Yes I do.

PN730

MR CLARKE: I wonder if the witness can be shown section 8 of the existing award your Honour.

PN731

THE SENIOR DEPUTY PRESIDENT: Do you have a copy of the existing Award Mr Clarke to show the witness that.

**** JOHN DENNISON XN MR CLARKE

PN732

MR CLARKE: I have an extract from.

PN733

THE SENIOR DEPUTY PRESIDENT: Yes. Perhaps you could show it to Mr Ridley first to confirm that that is indeed a copy of the section of the Award. I won't mark it if it is a copy of the Award.

PN734

MR RIDLEY: Your Honour I think I can confirm that it is pretty much a direct take from or reproduction of Clause 8 of the existing Award.

PN735

MR CLARKE: Mr Dennison do you believe that point 9, Types of Employment, should replace Section 8, Contract of Employment?---Well in fact, no, from my perspective, I understood that we are in the process of award simplification, not award expansion and I would suggest that Clause 8 of the Award more than adequately covers this aspect of the Award.

PN736

So as far as Point 9 on exhibit MSA1, Types of Employment, is there anything there that you think should be included?---No, it is already there.

PN737

Thank you Mr Dennison. The next point I take you to is Point 11, Redundancy. Point 11, Redundancy, Mr Dennison, do you agree with any of the points in the application for Redundancy under Section 11, 1 through to 11.10, to be included into the Award, Mr Dennison?---No I don't - I don't agree with the inclusion of those in the Award.

PN738

And why is that Mr Dennison?--- Well I think in the first instance, once again, it's - it's complicating the process. There are other areas that deal with termination and redundancy issues but in respect to redundancy in particular, the nature of the security industry, this matter has been addressed over a number of years, is such that our people are employed by us, that is the company, they are not employed for a particular site. The nature of the employment is that they are employed initially as permanent part-time security officers on a probationary basis. The nature of our work is variable in terms of

**** JOHN DENNISON XN MR CLARKE

the hours and is specified primarily by the client. We don't dictate the hours of coverage that are required. And the flexibility that is necessary is to fit in to those particular requirements. It means that many people in the industry continue to be employed as part-time, but their hours are such that with rosters and shift penalties and things of that nature you very often have got a situation where an employee that might miss out on 38 hours, might be doing 30, 35 hours, is in fact overall getting a better wage than a permanent person, full-time person that is working day shift, Monday to Friday. It is the nature of the industry and the rotation of the hours of work through these shift penalty times of nights, weekends and the like. So that as I mentioned the employee is paid or is employed by us and we provide a service to the client's premises. The normal custom and practice and turnover of contracts and roles within the organisation prohibit the implementation of this type of facility because the employee continues to - to work for the company. There are occasions where a particular employee may choose to stay on a particular site, but clearly the nature of the industry, the nature of the work, is that security officers are aware coming into the industry and during the course of employment in the industry that their - their location of work is liable to change at any particular time. Sometimes it changes weekly, sometimes it changes monthly, sometimes an officer might be scheduled to a particular location for an extended period of time but the nature of the industry is such that they shouldn't necessarily build their lifestyle around one particular location because they haven't been employed specifically for that location, they have been employed to work for the company at wherever the company happens to have work at that point in time. So that if a contract in fact changes, or is lost or just closes down, then the security officer hasn't lost his position with the company, it is just another change of role within the company. His employment continues generally with the - - with the company. There may be some change of hours in the early stages of this transition but in the sort of part-time nature of the work, particularly with longer-serving experienced security officers, we obviously want to place them as soon as practical into a more regular role because they're our primary service product, if you like. So we obviously need to look after those. But there are from time to time some security officers that decide that they want to stay at that particular site and transfer to the other company, or whatever the case may be. That is a prerogative that they have, they are not being made redundant by the company, it is a choice that they make themselves and I can tell you that we hate losing our experienced, well-trained security officers that we have invested a lot of time and money and we would - in their development and training, and we would rather they stay with MSS and we can move them onto other sites. But it is the custom and nature of the industry that jobs come and go, contracts come and go, but the security officers are employed by us, at whatever job we happen to have available for them at that time. They are not employed by the client at the client's site.

**** JOHN DENNISON XN MR CLARKE

PN739

MSA did you mean, not MSS?---MSA Security, sorry.

PN740

MSA?---So, therefore, that - this particular clauses are superfluous.

PN741

Mr Dennison, I move you - I ask you to look at 14.1.1. Can I ask you to look at that on document ALHMWU exhibit 2. And I also refer you to 14.1.4. The figures on MSA1 are different to that of ALHMWU exhibit 2 but however we used the document ALHMWU exhibit 2. Do you object to those points in the Award and if so, why Mr Dennison?---This is the 14.1.4?

PN742

Yes, and 14.1.1. If you can start on that please?---Yes, in relation to 14.1.1 since the development of this Award is that in Western Australia there's been the development of the Security and Related Activities Control Act which identifies the qualifications that a security officer needs to become licensed in relation to becoming a security officer. And that entails the undertaking and gaining the qualification of a Certificate II, which is a national competency based, nationally recognised certificate as a security officer and, in fact, one of the modules of that particular course has been, since its inception, that first aid training be undertaken. Now I must admit to the fact that in the initial stages of the development of this particular qualification, the Certificate II module was a compulsory module. Somewhere along the changes with the national arena, that module became an elective and in the present process of the re-establishment of the new industry training packages the Certificate for First Aid will again be a compulsory module within the Certificate II training course. And therefore it's not a requirement - it's no longer a requirement of the Award or the company, it's a requirement of licensing as part of the process. In the past this was covered. Those locations where a security officer was required to have the first aid training, not only that, but was required to use the first aid training. Many officers take up the first aid - or used to take up the first aid training as a normal process and where they were required to use it, it was a - it was a condition of employment then this allowance was paid but now it is universally a requirement that that be a form - a standard tool, if you like, standard qualification within the security officers licensing and training schedule.

**** JOHN DENNISON XN MR CLARKE

PN743

And 14.1.4, Mr Dennison?---14.1.4 is in fact a leftover from the good old bad old days of the previous awards. It is, in fact, a draftsman's error and has previously been recognised between the industry and the union that, in fact, at an appropriate time that that draftsman error would be taken out from the Award. In fact there were a number of discussions over a period of time at the Chamber of Commerce and Industry at which people such as Nick Ellery and Wilf Hunt, representing the Union, had discussions with the industry in relation to these matters. When the Award moved from being a State based Award to a Federal Award, in fact, is a direct re-write of the State Award and it had been recognised prior to that that this matter had been a draftsman error at the time because the Award classifications are, in fact, structured on the technology issues relating to the industry in the actual wage for the different classifications fully recognises that that technology as it relates to alarms. And as a consequence this allowance would, in fact, be a double-dipping matter which is not appropriate and, as I say, had previously been agreed to by Union representatives that it would be, in fact, the recognition of that would in fact be taken into the Federal Award.

PN744

But there's nothing in writing to confirm that, is there Mr Dennison?---No, there - there's certainly nothing in writing but I would think the undertakings given by senior members of the ALHMWU in front of the Chamber's representatives and the industry representatives that that was the case would occur. In relation to my involvement in this issue, the matter was in writing that it was identified that when I was with MSS Security here in WA that other companies were not paying this particular allowance and, in fact, at that point in time it was a company called Wormald. On inspection of the Award I realised that it was there and I commenced discussions with the Union in the guise of a Mr Wilf Hunt and, once again, we agreed between the company and the Union that it was, in fact, an error and double-dipping was occurring and that in fact it was correct that Wormald did not pay this allowance. We agreed with the Union at the time that rather than eliminating the allowance forthwith we in fact phased the allowance out over the series of minimum rate adjustments that were going on at that particular time and they were of the order of about - the adjustments were of the order of about $3 or $4 per each 6 months and so there was not a direct impact on the security officers. MSS agreed with the Union to phase this out on the basis of $1 per, $1, $1.10, whatever it was at the time per minimum rate adjustment and there was correspondence at that time between the Union and MSS and its employees to that effect and so that was transitioned out and again recognised as an industry issue that had been agreed to at that point in time.

**** JOHN DENNISON XN MR CLARKE

PN745

Thank you, Mr Dennison. I take you to the next point 15.1, Payment of Wages on the ALHMW document and MSA exhibit 1. Do you have a particular problem with that clause being put into the Award, Mr Dennison?

PN746

MR RIDLEY: If I can elucidate the difference. I think the difference is that it was at the discretion of the employer, I think, is what it currently says, if my memory serves me correctly. And what we've simply - not that I'm expected to make a submission at this point, but simply trying to reflect what are current practices of today.

PN747

THE SENIOR DEPUTY PRESIDENT: Mr Clarke, I can't see a difference between what it is that your proposing and what it is that the Union's proposing, perhaps you could help me?

PN748

THE WITNESS: In the Award it's different.

PN749

MR RIDLEY: Your Honour, I think the current Award has: "At the discretion of the employer" on it, I'm pretty sure that's what the current Award says.

PN750

THE WITNESS: That's exactly what it is and we see no reason to change.

PN751

MR CLARKE: This document that I've got here, MSA1, this is:

PN752

The respondent does not agree with the following points of the draft Award by the ALHMWU.

PN753

So these are the points that I've got, your Honour, that we disagree with and this point of 15.1, it does change - it does change the - there is a change from - from what is initially - - -

**** JOHN DENNISON XN MR CLARKE

PN754

THE WITNESS: Currently in the Award.

PN755

MR CLARKE: - - - or currently in the Award. clause 30 - clause 30, Payment of Wages, it currently states:

PN756

Wages may be paid by cheque, cash or direct deposit into the employee's nominated bank account at the discretion of the employer.

PN757

Mr Dennison, do you see 15.1 as a problem with being changed?---Yes, I mean it's - it's a change that really is not necessary. This particular clause I believe came about during, not Award restructuring, that was a Sydney matter, but implementation of the 38-hour week where there was the opportunity to utilise the benefits of EFT and that the custom and practise has been developed around that, quite clearly is based on the employer making the determination as to what process to utilise from the purposes of efficiency and effectiveness. And if we had, in our case, 400 employees and each employee wanted to do it a different way it would be an immense problem for managing the process of wages. The present situation prevails, is utilised, is working and there are no problems arising out of it and we see no need for change and the proposed change will just make life much more difficult for pay officers and companies to be able to manage.

PN758

So do you require your employees to open their own bank - open a bank account in a branch that you specify, Mr Dennison?---Not at all, the employee can nominate his own bank account and we facilitate payment in that, but you can imagine the hassles that would occur if some people want cheques, some people want cash, some people want direct deposits and they want them at a plethora of different ways, it would be just an immense sort of technical problem. The way it is now, the employee nominates his bank account and we facilitate EFT transfer of those funds into that account and the same applies to everybody and everybody has their own account. So they have a choice of account but for the purposes of efficiency and effectiveness, the company needs to be able to say: We will pay by EFT or by cash or by cheque, as the case may be. But it's the company's prerogative that needs to prevail in that regard from the efficiency and effectiveness of operation.

**** JOHN DENNISON XN MR CLARKE

PN759

Mr Dennison, with the current system you have in place for your employees, how many complaints do you get in regards to the current system that you use?---None.

PN760

Thank you. Now 15.2 - I have got that down there, Mr Dennison. Do you have a problem with 15.2?---Yes. We do and we're suggesting that if a change has to occur that what needs to occur - again I guess in this electronic age - we have the situation that we've probably all seen and read about from time to time that the electronic banking media does, from time to time have a glitch in their system whereby some people are paid much more into their accounts than they are legitimately entitled to. The concerns that we have is that under the present circumstances, if for arguments sake, the whole of our payroll went into the process and there was a glitch within the computer system of the distribution bank and that everybody was paid double, we would have extreme difficulty in recovering that at short notice and that could place the company, or any company, at severe risk. Under the present circumstances, if there's a mistake been made in an employee's pay, the employee can opt not to pay it back and possibly - not to pay it back in total - possibly elect to pay it at a grand sum at $1 per week. And if that happened on a wholesale basis then the employee - the employer is likely to be in extreme difficulties. If it's an error of that nature then it would be appropriate that either the matter could be reversed, as a matter of course, or some other means of recovering that quickly because if you've got a payroll of the magnitude of ours or some of the other companies around - perhaps not a Chubb but a private company - then a glitch of that nature could, in fact, wipe out the company because it's left with no funds to operate having paid everybody double, or whatever the particular computer glitch has created. So we'd like to see written into that point that an opportunity be provided for the company to recover such errors as expeditiously as possible.

PN761

My apologies, your Honour, and to Mr Ridley. I haven't done a draft pertaining to that. I'm sorry, I'll move on. Mr Dennison, I take you now to 16.1 and 16.1 on ALHMWU exhibit 2, it's the third line down. Do you have a problem with the word: "14 consecutive days", Mr Dennison?---Sorry, which - - -

**** JOHN DENNISON XN MR CLARKE

PN762

It's 16?---16.2.

PN763

No, 16. It's the - after "16 hours", it's third line down where it says: "consecutive days to be worked - 80 [sic] hours a day". Well starting from the second line:

PN764

38 per week, with hours actually worked being 80, in each rostered period of 14 consecutive days to be worked 8 hours per day on any 10 days of the fortnight not more than one shift in any period of 24 hours

PN765

?---I must confess to complexities in this regard. I think the concern is perhaps in the aspect of the prescriptiveness of the 14 consecutive days and I am just trying to get my mind around the issue.

PN766

And it goes on to say:

PN767

to be worked 8 hours per day on any 10 days of the fortnight -

PN768

?---Yes, I think it's to do with the correlation of the 14 days, the 8 hours days and synergy with the 12 day facilities available in the award further on. I just can't quite get my mind about the issue and maybe come back to that.

PN769

Okay, I'll move on Mr Dennison - might come back to that. I'll take you to 16.3.1?---Yes.

**** JOHN DENNISON XN MR CLARKE

PN770

Where it is says: "The ordinary hours of work in any day must be within a spread of 10 hours"?---Well, yes, I think that we object to that and there needs to be a change which more effectively reflects the custom practice in the industry as it relates to the implementation of the 12-hour aspect of the Award where today most organisations are working with 12 hours and the prescription of the spread of 10 hours is not consistent with the 12 hour facility that is available under the Award and therefore it is believed that the 10 hours should in fact demonstrate the same spread of hours as the 12 hours in the following clauses.

PN771

I'm sorry, Your Honour, I think in my document I've got 12 hours there, it should read "10". Sorry, Mr Ridley in my document, MSA1 that's a correction, it should read "10" because that's what's in the ALHMW document, it should read "10", but are you saying it should be 12 hours?--- For consistency with the rest of the 12 hour aspect of the Award.

PN772

Okay. Mr Dennison, I take you to 16.3.2 which says:

PN773

The ordinary working hours prescribed by this clause may be altered by agreement between the employer and the majority of employees.

PN774

Do you have a problem with that Mr Dennison?---In so far as the majority of employees as it relates to a particular site or location or the whole of employees.

PN775

It goes on further to say that:

PN776

Where agreement is reached in accordance with this provision to allow ordinary hours to be worked in excess of those prescribed by this clause up to but not exceeding 12 hours, but notwithstanding any provision of this award, the parties may also reach agreement in relation to consequential variations in the payment of ordinary hours leave and any other provision of the award affected by the agreement pursuant to 16.3.

**** JOHN DENNISON XN MR CLARKE

PN777

Do you believe there would be an impediment to allowing that word 'majority of employee or employees', it's employees, plural, sorry?---I'm

PN778

unsure as to what it says currently I'm afraid so just probably need to - - -

PN779

I believe what is currently stated is that if there is an agreement between the employer and the Union, that can occur without having anything in front of it but this particular clause here, that is attempted to be put up by the ALHMWU, do you have a problem with that word 'majority of employees'?---I think the intent is sound, it perhaps needs further expansion as to whether it's the majority of employees within the enterprise or whether it's the majority of employees of a particular site, I'm not sure that's clear, so I think our concern in that will perhaps some further amplification of what the intention is.

PN780

But what you have a problem with the word 'majority of employees' being retained in there?---Again, the concern is that there is a change from the Award, I think there's some merit in what's being said but I think there needs to be further amplification as to whether it's the majority of employees in the enterprise or the majority of employees in a particular site.

PN781

Thank you. Mr Dennison I move you - like you to look at 16.4.1.

PN782

I apologise again Your Honour and to Mr Ridley, I have in the third line down I've got MSA exhibit 1: Where an officer is required to work in excess of "six" hours - the word should be "five" hours because on the document ALHMWU exhibit 2 the word is "five hours".

PN783

Mr Dennison, do you have a problem with that particular application as per what's in ALHMW2?---Yes, in fact, in the last sentence or second last line it talks earlier on about a crib break between four and not later than six hours and again for consistency and particularly in consistency with 12 hour shifts: Where an officer is required to work in excess of "five" hours without a break he or she must be paid overtime rates. We believe that, in fact, that should be "six" hours.

**** JOHN DENNISON XN MR CLARKE

PN784

Why is that, Mr Dennison? To make it?---Well, (a) to make it consistent with the "no earlier than four hours and not later than six hours" in the first sentence but equally to make it consistent with the fact that this clause has obviously been changed to reflect the increase from eight ordinary hours to the twelve ordinary hours that's available and so it's got to be consistent within the clause but also consistent with the working of twelve hours.

PN785

Thank you. Mr Dennison, I take you now to 17.4 ALHMW document exhibit 2. It actually states in ALHMW2: "For officers employed on shift work eight hours including the normal changeover time, if any"?---Seventeen point?

PN786

Four (a)?---Yes, I think once again we are looking for consistency in this arena. I haven't - - -

PN787

Is there a word that you would like to - - - ?---Well, the concern is for officers employed on shift work, because of the rotating nature of work we've got people that work on day shift as well as on shift work and again for a practical use and to comply with the other areas of the Award, that the eight hour break should apply to any shift not just - not just shift work and I think that we would recommend the specified period must be eight hours including the normal changeover time, if any, rather than specifically officer employed on shift work.

PN788

Is there, I mean, without leading the witness, is there a word that you want to put in there before the eight hours?---No we want to take out perhaps, as I've just said, if that clause read: "The specified period must be" - taking out "(a) for officers employed on shift work" - and then it would read: "The specified period must be eight hours including normal changeover time, if any". That would certainly simplify the Award in that regard.

**** JOHN DENNISON XN MR CLARKE

PN789

Thank you and: (b) officers employed on any day work 10 hours?---Well, and I think that's why our concern is there really shouldn't be any difference between a day shift worker and a night shift worker. We don't see why somebody employed on day shift, Monday to Friday, needs a ten hour break and somebody who worked on night shift or weekends only needs an eight hour break. For consistency if it just says eight hours including normal changeover, that should encompass the whole lot, so for, again, simplification, the whole of (b) should be taken out and 17.4 should just read: "The specified period must be eight hours including the normal changeover time, if any". That would suffice.

PN790

Thank you Mr Dennison. I now move you to 18.1 where it says:

PN791

An officer required to attend the employee's premises for any reason other than to pick up his/her pay must be paid for the time involved in each such attendance.

PN792

Do you agree or disagree with that Mr Dennison?---No, I think again for simplification purposes and to reflect the custom and practice that prevails in the industry that the whole of clause 18 should be eliminated. Once again, the nature of the work within this industry is that security officers start and finish at clients' premises, they very rarely come into the office. However, there are certain administrative functions that need to be performed and/or counselling, disciplinary processes and it seems rather - rather inappropriate that a security officer has to be paid to come into the office to be disciplined for some misdemeanour or even more serious issues out - out at his place.

PN793

Mr Dennison, you've had sites in the south-west and the north-west, have you ever required employees in the south-west or north-west to attend a site at their office in Perth?---No.

PN794

So you've actually attended to matters on site?---In those remote circumstances, yes.

**** JOHN DENNISON XN MR CLARKE

PN795

Is most of your assessment of particular problems that have come up, has that occurred off the premises that you run the business from?---Yes, because most of our people work at the client's premises, those sorts of problems occur at the client's premises which, are usually within 25 kilometres of the CBD.

PN796

I take you to 18.2 Mr Dennison. Do you have a particular problem with the further call back provisions in 18.2?---I think that's adequately covered in the previous clause that we talked about where the employees are required to have eight hours break. Usually where we get involved in these sort of administrative disciplinary processes it's usually conducted shortly after the security officer finishes work on his way home or prior to him starting work on his way to work.

PN797

Thank you. Mr Dennison I take you to point 21.2 now and if you can explain to the Commission what problem you have with 21.2 please, if you have a problem? If you do so, what problem you do have?---Yes, we - we do have a fundamental problem in terms of the, I guess in the first instance, the increasing cost to the industry and hence to the public, one would suggest, but equally in the utilisation of annual leave or sick leave that those leave credits have been provided for - - -

PN798

THE SENIOR DEPUTY PRESIDENT: Mr Dennison, can I interrupt you for a moment. Mr Clarke referred you to clause 21.2. I take it you mean 22.1 Mr Clarke?

PN799

MR CLARKE: No Mr Dennison.

PN800

THE SENIOR DEPUTY PRESIDENT: 21.2. the clause referring to public holidays?

PN801

MR CLARKE: Public Holidays, yes.

**** JOHN DENNISON XN MR CLARKE

PN802

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN803

THE WITNESS: Okay. All right. Yes, I think the objection to that would be that with changes that have occurred in State legislation in respect to the prescriptions applying to when the public leave - when the public holiday leave or when the public holiday shall be recognised, then the clause as it stands is inconsistent with that, and we recommend that a clause that more correctly reflects the changes that have occurred in the prescription for the taking of public holidays within the State regulations be applied and the example of that would be that some public holidays now lie where they fall whereas this prescription suggests that if it falls on a Saturday or Sunday it be observed on the following Monday or Tuesday but recent State legislation has now, as I say, prescribed that some public holidays should be recognised where they in fact fall. In fact, if the State legislation can be included in there that would resolve the matter.

PN804

MR CLARKE: Thank you, Mr Dennison. I move on now to point 22 - personal carer's leave, of the ALHMWU document, exhibit 2. Do you believe that that should be included in the Award or, if you don't, can you suggest why not, Mr Dennison?---Well, we've, as I mentioned earlier, we believe that it should not be included in the Award, the reason being that annual leave and sick leave have been granted for specific purposes for the wellbeing of the individual in terms of either the partaking of annual leave and/or partaking of sick leave. As we know, sick leave is there for the employee to be sick, it's not necessary a free two weeks extra annual leave per year and the industry generally manages that sort of process and not everyone then takes ten days per year, the balance is accrued and often people go all the way through with a limited amount of sick leave but it's there for those who are genuinely sick. To utilise it for other purposes means that they would more than likely be a significant cost impost on the industry.

PN805

Mr Dennison, have you ever had any of your employees who've made application for personal leave and carer's leave to attend to private business or to look after someone who is ill, have you ever had that opportunity to sort a matter out with an employee at all?---Yes, we usually facilitate the process on the basis of either allowing to take paid annual leave or to take special unpaid leave as the circumstance might prevail.

**** JOHN DENNISON XN MR CLARKE

PN806

Thank you Mr Dennison.

PN807

THE SENIOR DEPUTY PRESIDENT: I am going to adjourn these proceedings for a five minute period and I take it you will resume your questioning of Mr Dennison after that period of time. Mr Dennison this is a very brief adjournment, but I would just caution you that you are still in the witness box so I would ask you not to discuss the matter with anyone else during this short adjournment. Thank you.

SHORT ADJOURNMENT [11.30am]

RESUMED [11.39am]

PN808

MR CLARKE: Thank you your Honour.

PN809

Mr Dennison I take you now to - I think we have finished with point 22, your explanation on that- 29.5.2 subsection (a), Mr Dennison?---29 point?

PN810

Point 5, it is on page 36 of the ALHMW document down the bottom of my document.

PN811

The employer must make monthly contributions for each employee.

PN812

And I take it your Honour that the sections above that 7 percent of ordinary time earnings and ordinary time earnings in 1998/99, 99/2000, that 7 percent is not applicable?

PN813

MR RIDLEY: I can confirm that that is deleted your Honour.

**** JOHN DENNISON XN MR CLARKE

PN814

MR CLARKE: Thank you your Honour. Thank you Mr Ridley.

PN815

On that point Mr Dennison, 29.5.2(a):

PN816

The employer must make monthly contributions for each employee.

PN817

?---What does the Award say currently in that?

PN818

The Award does state that it must make monthly contributions?---Okay. I think probably need to take, in my mind at least, the 29.5.2(a) with 5.3(1) in the change that has occurred there, is that under the Superannuation Guarantee Act the employee - employer has a number of facilities available to them in terms of making the payment of the superannuation guarantee charge, whether it be weekly, fortnightly, monthly, quarterly, or in fact annually. And so we suggest that this change to the Award is in fact too prescriptive and that the details of the Superannuation Guarantee Act should prevail, leaving the employer the option, the prerogative to make payments in accordance with that Act, either weekly, monthly, quarterly or annually, in compliance with the Act. We don't believe that the Award should be made to attempt to over-rule that which is contained in the Act.

PN819

Thank you Mr Dennison. Mr Dennison just a couple of points I would like to raise now. Do you sign probationary employees up to work 120 hours in a week Mr Dennison?---Sorry?

PN820

Do you sign any probationary employees up to work 120 hours in a week?---In a week?

PN821

Yes?---No.

**** JOHN DENNISON XN MR CLARKE

PN822

A fortnight?---We don't sign anybody up to do 120 hours in a week.

PN823

A fortnight?---No.

PN824

Do you have a habit of cutting down probationary employees, once they have completed their probation, to part-time or casual?---No, we employ people as part-time security officers in accordance with the Award and they serve their probationary period in accordance with the work that is available as they are sort of progressing through their employment with the company. Probation is usually a part of a learning and skills development process.

PN825

Mr Dennison do you target employees who have been with you 10, 15 or 20 years to cut their hours down at all?---No, in fact as I mentioned earlier, we put a lot of value in our experienced, trained security officers and we are - we are loathe to loose them. We try and give them as many hours as we possibly can in the circumstances.

PN826

Do you have any part-timers working for you currently, or in the past, who have had problems obtaining sick leave or annual leave?---Not that I am aware of, only if they have run out of sick leave or annual leave they would have problems. But if they have got an annual or sick leave entitlement they usually take it at some point in time.

PN827

Do you advise a part-time employee who makes application for annual leave to not roster them on for an annual leave component of two, three or four weeks?

PN828

MR RIDLEY: I think we might be slipping into leading questions. I would be more than happy for Mr Clarke to perhaps ask more generally-framed questions if that was possible.

PN829

THE SENIOR DEPUTY PRESIDENT: Mr Clarke, perhaps you could rephrase your question.

**** JOHN DENNISON XN MR CLARKE

PN830

MR CLARKE: Thank you, your Honour.

PN831

Mr Dennison, if a part-time employee applies for annual leave, is it granted?---It's granted subject to certain recognised conditions, that is that the annual leave is applied for with a reasonable degree of notice, that the individual has - has sufficient annual leave credits available and that the opportunity is provided to have a trained security officer replace him at his place of location. But other than that, no there is no difficulty with people taking annual leave.

PN832

Or sick leave?---Or sick leave, I mean people take sick leave. If they're sick they don't turn up for work, they have their sick leave. There is normal requirements for them to provide notice and/or doctor's certificates, but

PN833

Mr Dennison are the employees aware of what level of pay they are paid pertaining to the site?---Yes. I would - I would suggest they do, they are.

PN834

Is their any vagueness to the level 1, 2, 3 or 4 that they may be on Mr Dennison?---No, usually at assignment to a particular site they are advised both by the company and probably other security officers working on the site, the particular classification of the site. Bearing in mind these classifications are site-based not employee-based. I mentioned earlier it is recognised as the technology that they are required to work with on a particular site. So if it is a standard site it might be Level 1, if it has got a bit more technology, it is Level 2, and these sites and classifications have been well identified over the years and in fact they used to be an industry committee that encompassed the LHMWU, the CAMS, the government contracting company, and representatives of the security industry, used to go around the different sites and agree between them what the particular classifications of the sites were. So they're these days fairly well established.

PN835

Mr Dennison have you ever had a problem in the Commission or Industrial Magistrate's Court with the application of the current Security Officers Award?---Yes, we have.

**** JOHN DENNISON XN MR CLARKE

PN836

And what was that Mr Dennison?---Well it related to the keeping of time and wages records primarily as it related to the implementation of 12-hour shifts and rosters and things of that nature. And despite the fact that we had a DOPLAR inspector that indicated that the way we kept the time and wages records complied with his understanding, we were taken to the Industrial Court on the matter.

PN837

Have you had any problems with any of the guards speaking to you about entitlements Mr Dennison, you or your guards' managers or supervisors about entitlements that they believe they may be due?---There are periodic inquiries by security officers as to clarification of different issues. They usually resolve fairly speedily and it is not that it is a wholesale situation but from time to time an officer will make an inquiry for clarifying what the position, and usually that inquiry is made through the pay officer or the co-ordinator.

PN838

Is there an impediment that a - are you aware of any impediment a guard may have or fear that they may have in approaching you or anyone else Mr Dennison in regards to such inquiries?---Probably other than my presence and size but, we have always endeavoured to facilitate access to the organisation from employees at all levels and I do get individual security officers coming up and talking to me from time to time, asking odd questions or odd issues, how are things going or what is happening with this and what is happening with that. I think we have a reasonably good rapport across the board with our security officers. I guess part of the difficulty is as the business gets bigger you sort of tend to get a little bit further away from the coal face but we have a policy in our company that periodically the management team gets into uniform and goes out in the field and works side by side with the security officers to sort of establish that sort of rapport and commonality.

PN839

MR CLARKE: Thank you. I have no further questions your Honour.

PN840

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Clarke, Mr Ridley.

<CROSS-EXAMINATION BY MR RIDLEY [11.40am]

**** JOHN DENNISON XXN MR RIDLEY

PN841

MR RIDLEY: Thank you your Honour.

PN842

Mr Dennison I think it is quite obvious from your witness testimony that you have a huge and immense experience in the security industry. And that is obviously of great benefit to the Commission in these proceedings. What I would just like to clarify if I may is my understanding is that you're here representing Olten, which is - - -?---MSA Security.

PN843

- - - the registered name for MSA guards and patrols?---No, the MSA Security.

PN844

Okay. What we heard yesterday from Miss Testar and it was specifically in relationship to Mr Drury, that in her dealings with him, he's often been wearing different hats, whether that be of I'll just say Olten as MSA, Personnel Services and Labour Hire and even more recently Star Protection.

PN845

THE SENIOR DEPUTY PRESIDENT: Yes Mr Clarke?

PN846

MR CLARKE: Sorry I have to object.

PN847

THE SENIOR DEPUTY PRESIDENT: Well I haven't heard the question yet, it is a little hard to object before I hear the question please.

PN848

MR RIDLEY: What I am interested in trying to elucidate Mr Dennison is when the evidence that you have given, is that in relationship to MSA employees only?

PN849

THE SENIOR DEPUTY PRESIDENT: Now before Mr Dennison answers that question, Mr Clarke are you objecting to that question in its now apparent form?

**** JOHN DENNISON XXN MR RIDLEY

PN850

MR CLARKE: Yes, yes the - - -

PN851

THE SENIOR DEPUTY PRESIDENT: Perhaps you could tell me why.

PN852

MR CLARKE: Mr Dennison is only appearing only appearing for MSA Guards and Patrols. That is all he can give evidence on. And that is what he has given evidence on. I mean to go outside the scope of other companies that aren't listed as respondents in the Award is irrelevant to the Award simplification process.

PN853

THE SENIOR DEPUTY PRESIDENT: Surely that is the essence of the question that Mr Ridley is asking. Mr Clarke I am going to allow the question because it seems to me that that is fundamentally the essence of the question that is being asked.

PN854

MR CLARKE: Thank you your Honour.

PN855

MR RIDLEY: So if I may repeat the question Mr Dennison. Is it that your answers in terms of your witness testimony today and what might follow, is directed specifically to MSA or about MSA employees?---MSA Security employees, as a consequence of the company being respondent to the Award, they're the matters on which I am responding on.

PN856

And how many employees would you have employed at MSA?---At MSA Security?

PN857

Yes. It doesn't have to be an exact figure?---Well at this juncture I would suggest that is - I guess unless otherwise advised, but I would suggest that is commercial in confidence, in the same way as the LHMWU doesn't necessarily reveal how many members it has.

**** JOHN DENNISON XXN MR RIDLEY

PN858

Well I think you may have been told as a consequence of yesterday's witness testimony, that we did in fact offer a range of employees under oath, or a range of members I should say?---Sorry, a range of?

PN859

Members. The range in which we believe the members fell.

PN860

THE SENIOR DEPUTY PRESIDENT: Mr Dennison could you advise the approximate number of employees engaged by MSA Security?---The approximate number of employees engaged by MSA Security, as respondents to the Federal award, is of the order of about 50 or 60.

PN861

MR RIDLEY: And could you please give the Commission an indication of approximately how many contracts, I don't want to know the names, but roughly how many contracts are actually held by MSA Olten with clients for the provision of securities or like services?---What is it that you wanted to know, sorry?

PN862

I am wondering how many contracts MSA has with clients to provide security services?

PN863

MR CLARKE: I have to object. That's not relevant your Honour to this application. There is nothing in the Award which designates how many contracts a particular security company may or may not have and therefore the question is outside, I believe, the scope of what is being attempted, be they have one or a hundred. He's given an answer of how many employees there are with MSA Security and how many contracts is an issue that is - that really should - that is not before the Commission and should not be brought in and introduced as evidence.

PN864

THE SENIOR DEPUTY PRESIDENT: Mr Clarke, before you take your seat, Mr Dennison a short time ago gave evidence in relation to the dispute over Clause 11, Redundancy. And that evidence went to issues such as whether or not the jobs and the contracts come and go, but the employment of the staff continued during that change in contractual arrangements. Are you still arguing that the issue of contracts is irrelevant to these proceedings?

**** JOHN DENNISON XXN MR RIDLEY

PN865

MR CLARKE: No. No your Honour. But hopefully the number of contracts, which is what is being sought by I believe Mr Ridley, is an irrelevant matter.

PN866

THE SENIOR DEPUTY PRESIDENT: I'm going to allow the question, Mr Clarke. It was necessarily a vague question, it was simply an approximate number that was being sought.

PN867

MR RIDLEY: That's correct, your Honour. So, if I might repeat the question.

PN868

Could you please give the Commission indication of approximately how many contracts MSA Olton hold at this current point in time?---It is difficult to give a specific number because we're dealing specifically with - with MSA Security Services but would venture to suggest it's somewhere between 3 to 500.

PN869

Three to 500 contracts?---300 to 500

PN870

I beg your pardon - three to - - - ?---300 to 500.

PN871

Three hundred to 500 contracts. I'm just wondering if you can please explain to the Commission how you might be able to provide enough employees, given that you've indicated on oath that you employ MSA - MSA Olten ultimately employs approximately 50 or 60 people to cover 300 to 500 contracts?---Yes, I can do that.

PN872

Could you do that please?---Well among our services are those of mobile patrols and we have a fleet of mobile patrol vehicles and incumbent among those are contracts for delivering mobile patrol services and each patrol officer may well respond or attend to 30 or 40 clients' premises during the course of an evening.

**** JOHN DENNISON XXN MR RIDLEY

PN873

Thirty or 40 clients in the time of a shift. If I may - perhaps if you could give the Commission indication out of those 50 or 60. What would be the proportion of those appointed full-time as opposed to those that work part-time or appointed part-time?---Well it would probably be better fitted to have the payroll officer here but I'd say that the majority of the employees are permanent part-time.

PN874

The majority of your employees are permanent part-time?---I think so.

PN875

When you talk about part-time. Can you perhaps give the Commission an indication please of how many hours that might be allocated to these permanent part-time employees?---Well part-time employees under the Award can be anywhere between zero and 40 hours per week as I understand it.

PN876

So given that MSA has to cover in the vicinity of 300 to 500 clients at any particular point in time, you've got the sum total of, let's call it 60 employees, but you've only appointed them at part-time?---Well what I haven't given you is a specific number. We're talking about a vague, nebulous number of clients. I've given you an indication of how we cover a large number of clients, with patrols. You're asking me to give you now specifics that probably don't run to the questions that you originally asked me.

PN877

Okay, perhaps I'll ask a different question that's related, Mr Dennison. Perhaps if you could given the Commission an indication please of those fixed 50 or 60 employees of Olten, the numbers that are deployed on patrols as opposed to those that are deployed on sites. That might assist in the elucidation of the information that I'm after?---I don't know that I can break that down specifically either because as has been mentioned I am involved in the management of a number of different companies and I don't know the individual breakdowns in that regard. But a significant number of those would be involved in mobile patrols and some would be involved on static sites.

**** JOHN DENNISON XXN MR RIDLEY

PN878

It would be reasonable to suggest, wouldn't it, Mr Dennison that given the number of contracts that you currently hold, or the range that we believe that you hold and the number of employees employed by MSA, that the hours on average worked by each one of those 50 or 60 would certainly be approaching full-time hours. Would that be a fairly reasonable inference to draw?---In fact I alluded to that earlier on, that a part-time employee can, in fact, gain a significant of hours that because of the nature of the shifts and the week-end penalties, could outweigh what another person on full-time hours on day shift would earn. So that's a repeat of that particular issue.

PN879

But I suppose the nub of the question, Mr Dennison, is if we're talking about such a relatively small number of part-time employees working what appears to me by reading between the lines, full-time hours, why wouldn't there be - because I believe that MSA is a good and proper and responsible employer, why wouldn't there be an appointment of these people on full-time?---As I mentioned earlier on in my testimony, the nature of the hours that we're called upon to work is determined not by us but by the clients in terms of what their expectations are. And in responding to the questions as I have in the past, I have responded on the basis of both my personal knowledge under MSA but also my knowledge under MSS Security and my length of knowledge in the industry. So I've been talking in general terms from industry knowledge as well as specific terms from my own company perspective.

PN880

Yes, I understand that. In terms of the number of clients held any particular time, the turnover of those clients as it relates to the allocation of work. Would you see any patterns emerging in terms of one of your 60 part-time employees in terms of the week that he or she does on, let's call it a weekly, not necessarily a daily basis but a weekly basis, because I can't imagine your clients changing every other minute. So the question is: Is there some consistency over some weeks, maybe months about how each of these part-timers work, sites, hours and rosters?---Well in the first instance I didn't say that there were 60 part-time employees.

PN881

There are less than 60 part-time employees. You said a majority?---That's right, I didn't say 60. So that being the case, the question is?

**** JOHN DENNISON XXN MR RIDLEY

PN882

The question is: In terms of those part-time employees, the work allocation that's given them - is there some consistency in terms of hours, rosters and sites that they work?---Yes, well we try to - we try to maintain a consistency as people develop through the organisation they go from a few random hours to the stages as they get more experienced and longer serving with the company, we try to keep them in regular - regular hours.

PN883

Given that - and given, if I'm right, but please correct me if I'm wrong, that the client base is not constantly turning over - not, well I mean - perhaps you'd like to answer that. I mean is it that your client base is changing every other week or every other month?---Oh, it could be changing daily. I mean as I mentioned earlier, there's a custom and practise within - - -

PN884

But the majority of - the majority of contracts I'm wondering? The majority of contracts, would they be changing weekly, monthly, quarterly?---Let me say there is change - there is constant change within the contractual base. A specific client may not change for some time; other clients may change quite frequently. There's a degree of ad hoc nature in the provision of services. You know for arguments sake, we recently saw a fire in the city here and it required a whole group of security officers to go and work there but that was for a short-term period and that contract came and - came and went. There's a permanency as well as an ad hoc nature to the industry.

PN885

Sure. So how does MSA - no I'll ask the question a different way. This 50 or 60 or so of employees, can you give the Commission indication of whether that's a figure that's relatively static over the last couple of years or is it a figure that's grown dramatically?---Our employees have been fairly consistent. We have a significant number of long serving employees that have stayed with us over a long period of time.

**** JOHN DENNISON XXN MR RIDLEY

PN886

So how do you cope with the rise and fall in the demands that you're obviously at pains to put to the Commission?---Well, I'm not at pains to put it to the Commission, what I'm at pains to do is to indicate that there is a fluctuations within the - within the client base and clients come and go, so in one particular day or one particular week, two or three clients might drop off but two or three new clients might come on and you've got this constant ebb and flow of - of clients. So there are seasonal elements but overall the contract base continues otherwise we wouldn't continue. There is a growth component to that hopefully, that we continue to grow but there is ebb and flow among the clients. They are dropping off and coming on all of the time.

PN887

Okay. So you'd expect these 50 to 60 people, or certainly the part-time people which make up the majority of those to be pretty much working full-time hours, I would have thought, if not over the full - what we deem as the full-time hours. I mean given the workloads that you're talking about, given the ebbs and flow in contract. So how does that - what does that mean for MSA when it's calling upon - well how does it call upon? What mechanisms does it call upon to actually fill those gaps that the client suddenly ask that - meaning allocation of hours above and beyond full-time for each of those 60 employees?---Well in relation to MSA Security, we don't have that much turnover in staff. We have a pool of permanent and permanent part-time security officers and their hours - their hours vary. We are also involved in a management group which is involved in different arenas.

PN888

I'll refer again to what Ms Testar's evidence went to in some part yesterday. It was certainly in reference to a comment that she was making about Mr Graham Drury. Perhaps if I can ask for clarification, Mr Dennison, what position does Mr Drury actually hold within MSA?---Well, as I mentioned I am appearing here as the Managing Director of MSA Security. I am also involved in MSA Management Services which is a management and administrative service for a number of organisations and I, like Mr Drury, fulfil a number of different roles within that management structure.

PN889

Perhaps if you could tell the Commission please, in reference to your role as Managing Director of Management Service - MSA Management Services, how that impinges on the operations of MSA?---Well MSA Management Services provides the management and administrative infrastructure for MSA Security.

**** JOHN DENNISON XXN MR RIDLEY

PN890

And would I be correct in saying that both those organisations have a street address of Suite 7, 567 Newcastle Street, Leederville?---Well there are a - there are a number of companies that have their offices in that - that particular complex.

PN891

Yes they certainly do don't they, Mr Dennison?---Including Ness Security and people of that nature.

PN892

Yes, I think it's probably now opportune to provide some documentation to you Mr Dennison. How are we going to do this? Oh actually, sorry, let me try to be a little bit more efficient in this. Now, I should have done this. Actually what I might do, if it's all right - sorry I beg your pardon, your Honour. I've just realised that I've not amalgamated this - oh yes I have - oh no I haven't. Okay, let's do this again.

PN893

MR CLARKE: Sorry, is there a copy in here for his Honour?

PN894

MR RIDLEY: Oh yes there will be. Yes, so it's one of each of those piles.

PN895

MR CLARKE: That's the pile is it?

PN896

MR RIDLEY: Whilst there's some administrative work and I apologise for my tardiness in not perhaps making it a little bit easier for the Commission. What I've actually handing up legal company searches for the following companies: Star Protection Security and Intelligence Services, Personal Services and Labour Hire, Olten Pty Ltd which we understand to be the Federal Award respondent, Alpha Personnel Pty Ltd, MSA Management Services Pty Ltd.

PN897

THE SENIOR DEPUTY PRESIDENT: Mr Ridley, I don't want to pre-empt any objection that Mr Clarke might want to raise, but perhaps while we're waiting for the documents to be collated you could tell me how this documentation is relevant to the matters in dispute?

**** JOHN DENNISON XXN MR RIDLEY

PN898

MR RIDLEY: Certainly, your Honour, I will certainly endeavour to do that. The relevance of this documentation is that it clearly indicates that 4 or 5 companies operate from exactly the same street address as MSA Management Services, to which Mr Dennison has made reference to and MSA Olten which we understand will be the Federal Award respondent. In the questioning in relationship to the number of employees that MSA employs and the number of contracts held, I think there's a fairly legitimate inference to be drawn that - and certainly in light of the answers that have been given to the Commission - that there is no way, and I would respectfully submit this. There is no way that MSA, with a full complement of 60 employees, and we've heard Mr Dennison's evidence that, in fact, a majority of those are part-time employees, therefore, we assume working less than full-time hours, could cover 300 to 500 contracts at any particular point in time.

PN899

In relationship to my question in terms of dealing with the ebb and flow or the rise and fall, if you like, of the contracts and the requirements, for example, in the case given to us in relationship to the fire and needing a number of guards there pronto, what I am now putting forward is, in very general terms - and it's quite clear on examination of each of these company searches that there is quite a complex corporate webb in relationship to how MSA operates. Now, what I don't want to do is confuse these proceedings because we understand they are Award Simplification proceedings, so this is actually not witch-hunting. What this is about is simply trying to get to the bottom of the veracity of, if I may, of the figures that have been given to us in relationship to regular part-time employees, the consistency or otherwise, that is in - that is a substantive issue in terms of what the Union is seeking to put forward in terms of a proposed Award.

PN900

My concern is, of course, that as it will also become apparent, that - and consequential to Ms Testar's evidence - that it is sometimes very difficult to know, I think she indicated when dealing with Graham Drury, whether in fact he's wearing a Star Protection hat or a Personal Services and Labour Hire hat or an MSA hat. And so I'm trying to be extraordinarily clear that we're confining the evidence today that's given by Mr Dennison and by Mr Drury, to that of MSA and that we are in no way confusing what clearly is a structure, which I won't make an opinion about, but which is a structure indicative of, from my point of view, of there being quite a - quite a sort of complex arrangement between a variety of companies in terms of the provision of security services.

**** JOHN DENNISON XXN MR RIDLEY

PN901

THE SENIOR DEPUTY PRESIDENT: Well, Mr Ridley, I'll admit the document. Now, in doing so, I need to make it clear to you that I think the approach that you're adopting is one that teeters on the edge of being beyond the matters that are in dispute. Now, I'm happy to listen to the questions that you might wish to put. I take some comfort from your assurance that you're not embarking on a witch-hunt and that you are focussed specifically on the issues that are subject to this Award Simplification matter. But I do need to caution you that I'm having some difficulty following the line.

EXHIBIT #ALHMU6 EXTRACT LEGAL CO ONLINE INFORMATION ASIC ACT - COMPANY ACT

PN902

MR RIDLEY: Thank you, your Honour.

PN903

THE SENIOR DEPUTY PRESIDENT: Mr Clarke.

PN904

MR CLARKE: Your Honour, I have to object. This is a witch-hunt. This is a witch-hunt. Every time they get the opportunity to get Mr Dennison in the stand on other matters they go on about other, other, other matters that are unrelated. They have no relevance nor relationship to what is before the Court. This is nothing but a witch-hunt. Obviously Mr Jonick really does not know how the security industry runs, nor do their organisers for the ALHMWU who don't even know the Award. The situation is, the only document that I would seek that would be permitted is the document with Olten Pty Ltd on it. All the other documents, MSA Management Service, Personal Services and Labour Hire, Star Protection, Alpha Personnel. Those companies are not named as a respondent in the Federal Award - they are not named.

**** JOHN DENNISON XXN MR RIDLEY

PN905

Now we have not gone on about the ALHMWU structure or their organisers. We haven't - we've accepted them and for this information to be put up to you now, your Honour, this is nothing but a witch-hunt and the only document that I submit that Mr Dennison should be questioned on is Olten Pty Ltd. It has no - the rest have no relevance or bearing whatsoever to the matter that's before you and I strongly object to these documents being tendered. Once again, I seek, the only document that can be put up - well I don't believe that any documents should be put up, I mean, Olten Pty Ltd has a registered office - what, are we in a Magistrate's Court trying to prove that they are in existence? I mean, Olten Pty Ltd trading as MSA Guards and Patrols, whatever it is, that hasn't been the argument. What they're attempting to do - what they're attempting to do is nothing short of a witch-hunt. They - and the fact that they have confusion dealing with whatever - they don't even know the Award, your Honour. They don't even know the Award.

PN906

I haven't gone on about how incompetent or inept they are. We're dealing with Award Simplification, we're not dealing with any other matters and - and if we're going to allow this to happen - I mean I could go on about the ineffectiveness of the ALHMW, members resigning out there and all sorts of stuff but I'm not, I'm sticking to the facts and I believe we should stick to the facts pertaining to this matter. This is nothing short of a witch-hunt. Thank you, your Honour.

PN907

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Clarke.

PN908

MR RIDLEY: Mr Ridley.

PN909

MR RIDLEY: I think the necessity for me to respond to that is probably zero. Suffice to say that I will repeat again, this is not a witch-hunt.

PN910

THE SENIOR DEPUTY PRESIDENT: Now, Mr Ridley, I've admitted the document. I've cautioned you in terms of the difficulty I'm having linking this material to the matters in dispute.

**** JOHN DENNISON XXN MR RIDLEY

PN911

MR RIDLEY: I understand, your Honour. What I was - - -

PN912

THE SENIOR DEPUTY PRESIDENT: And I put you on notice that you will need to ensure that you can establish a direct link between any questions that you might choose to ask Mr Dennison on this matter with the specific issues in question.

PN913

MR RIDLEY: Sure, I understand, your Honour.

PN914

THE SENIOR DEPUTY PRESIDENT: I could also say that I will obviously not be taking into account issues that relate to companies that are not respondent to the Award.

PN915

MR RIDLEY: I understand. Mr Clarke indicated that we - we are quite ignorant in terms of how the security industry works. I suppose in the questioning of Mr Dennison, who is clearly sporting quite a huge and probably unrivalled experience in the security industry. I suppose the questions and the reasons for the documentation is to indicate that there is a way of operation in terms of the allocation of work and the way that people are deployed which I think is critical in relationship to the substantive issues that we have before us.

PN916

So this is not an issue of having a go at Star Protection or any one of the other - it's saying: Well, okay - and the question I'd like to put to Mr Dennison is: Can you please then tell the Commission what you see as being the fundamentals of the security industry as it currently operates, that have a direct bearing on the issue of allocation of work, for example, to part-time employees?---Yes; and I make the point that I - that I have addressed my questions - answers to questions in the past both on my knowledge in relation to MSA Security Services and my industry knowledge. I've made that known from the outset and I've repeated that on a number of occasions. I'm also the Vice President of the Security Agency Institute of Western Australia and have dealings with security companies across the board, with the Union on behalf of the Industry Association, with CAMS, with the Government on those matters.

**** JOHN DENNISON XXN MR RIDLEY

So, yes, I do have some knowledge of the way that the industry does operate. I have also indicated that I operate under a - also with a management service that manages administratively a number of different companies, so I'm more than happy to give you an indication of what happens within the - within the industry. It's a bit difficult when it gets to specifics of one company versus another company because I don't know all of the numbers and figures but I can answer your first question which you have alluded to on a number of occasions, that if you multiply 30 visits a night by a patrol officer by 10 patrol officers, you very quickly get to a sum of 300. And that's the sort of thing that you need to be aware of in - I'm trying to impart the industry knowledge as to how these can be achieved because you - you in asking the question are obviously not aware of how it works, but I can tell you that the sums are quite readily achieved by that process.

PN917

Sure. Mr Dennison, I think your answer's predicated on the basis that each and every one of those 60 employees are, in fact, patrol officers. Now you've indicated that there are a number of people who work sites as opposed to patrol officers?---Yep.

PN918

I'll ask the question again. Can you give the Commission, please, an indication of the proportion of employees, your employees, deployed on sites as opposed to being patrol officers?

PN919

THE SENIOR DEPUTY PRESIDENT: Mr Ridley, I thought you'd asked that question and I thought Mr Dennison indicated that he was not in a position to give you an exact break up at all.

PN920

MR RIDLEY: Yes, that's very correct, your Honour, but Mr Dennison's answer to how we get the sums of 50 or 60 into 300 to 500 is that each - it's there's an assumption based in his answer on that each and every one of those 50 or 60 are actually patrol officers?---No, I gave you an indication that a patrol officer visits 30 to 40 clients per night and you can very quickly - to get to those sums if you had 10 officers, now we're talking more than that, I'm just giving you how we can get to the sort of sums that we're talking about.

**** JOHN DENNISON XXN MR RIDLEY

PN921

If we were to perhaps go through some of your examination-in-chief and the objections or your commentary in relationship to a number of the proposed Award changes. If we can first turn to the Dispute Settling clause and those issues that pertain to - say perhaps if we were to look again at - I think it's 7.2. Oh no, I beg your pardon, it's 7.1.2. 7.1.2(e) and (f). I think you indicated that you certainly would have an objection to the incorporation of each of those two subparagraphs into the Award. I'm - the question I have, I suppose, is: Where a Union delegate has been requested by one of your employees, would there be a problem in your mind in terms of that Union delegate becoming involved in step 1 of the dispute settling procedure, which is what's currently in the Award?---Well on that basis, my answer's have generally been predicated on the basis of the fact that we're talking about Award Simplification. Now to my way of thinking that doesn't mean that we're putting in more clauses and making it bigger and longer. It means it makes it more simpler and my view is that the present clause contained in the Award that covers this matter, adequately covers this matter. It doesn't need any additional clauses or expansion or explanation. The rights of the individual for representation are adequately covered in the Award as it exists at the present time, why do we need to put in another half a dozen clauses to simplify it? It doesn't make sense to me.

PN922

Would you have a difficulty then if a Union delegate did come along?---As Ms Testar would attest to, that we have had meetings at our offices with the Union representatives on different issues from time to time over the years and I see no reason why that would not continue in the same way that it is continued.

PN923

And, of course, you'd have a preference wouldn't you for disputes and sometimes that's a pejorative term but a difference of opinion - call it what you will, to be resolved expeditiously at the local level?---Well, I mean, our understanding of this process of dispute resolution is it's first and foremost an attempt to resolve it at the lowest level possible. So in the first instance, the dispute might be between a security officer and his immediate supervisor who might be a senior officer. If it can be resolved at that level, it doesn't need ours and it doesn't need to the Union to be involved. As the thing escalates, the current Award recognises that these things do escalate from time to time. We follow the procedure as I understand the majority of the industry who are

**** JOHN DENNISON XXN MR RIDLEY

respondents to the Award follow - follow the procedure. I - I tend to think that we shouldn't get hung up on those people that are not responding to the - not respondents to the Award that might be influencing the way the Union looks at these things and concentrate on the fact that those who are respondents to the Award, follow the procedures that are laid down in the Award and they have served us well and truly in the past.

PN924

Absolutely, so following those procedures, you would obviously agree with, you've asserted as much, so - and I suppose you'd agree with the proposition that anything that can be done to expedite resolution of the problem at the local level should be done?---Well not if it comes to making the thing more complex and sticking in extra clauses. What we've got there serves our purpose at the present time. What we've got in the existing Award.

PN925

If we were to turn to clause 9 - that's just to lead us back into that clause again - what appears to be the contested matter is really 9.2. In terms of substance I am now talking about. What is it, Mr Dennison, that you object to in relationship to the provisions of the proposed 9.2?---Well I - I can come back to the statement that I made in relation to the last matter and that is that we currently have a Federal Award. I understand that we're going through the process of Award Simplification and I'm all for simplification. But these matters are already all covered in the Award. I - I'd rather see them simplified, matters taken out of the Award to make it simpler, rather than expanding on - on them the way that this sort of thing is done. I'm saying that the present clause in the Award on this matter is - is adequate for the purposes of the Award.

PN926

When it comes to part-time employees, you've certainly made - given very strong assurances that really, although you have a majority of your employees as part-time, it appears that they're working, as far as I can gather, consistently high, if not what we might call, full-time hours. What then is the difficulty that you see in clause 9.2 in particular which seeks to provide some consistency and certainty for those part-time employees?---Well in order to answer that I'd need to look at the - the same clause or the clause that it purports to replace because I believe that it's adequately covered in the - in the present Award.

**** JOHN DENNISON XXN MR RIDLEY

PN927

Well, in essence, can I help you and say that 9.2, although there will be some similarities, is - does go a step further in terms of trying to promote consistency and certainty. Now you are not against consistency and certainty for your part-time employees are you?---What I'm - what I'm against is trying to make a comparison based on - on memory. If I have a copy of the current Award that covers this particular issue then I could probably give you a reasoned comment but my comments from memory are that the matters are quite clearly covered in the clause of the existing Award without the necessity to - to expand clauses that we're trying to simplify.

PN928

Would you acknowledge that, unlike MSA, there may be a number of other companies, who shall remain nameless, of course, who perhaps are not in a position to provide some consistency or certainty in terms of the deployment of part-time work?

PN929

MR CLARKE: Objection, your Honour - objection. That is purely speculative and if anything is hearsay evidence. Unless Mr Dennison can give direct evidence that he's been into such offices of companies and seen and sighted such information pertaining to what other companies may or may not do; unless he can specifically give an answer to that, it is purely hypothetical, speculative and hearsay.

PN930

THE SENIOR DEPUTY PRESIDENT: Mr Ridley, Mr Dennison has been at pains throughout his testimony to point out that he is giving evidence relating to MSA and on that basis I believe your question is probably very difficult to sustain.

PN931

MR RIDLEY: I can understand your point very clearly, your Honour, but then I suppose Mr Dennison also, I think, and quite legitimately so, is seeking to utilise, in terms of answering questions, his experience, which is a long experience in the security industry together with his position in the Security Institute of which I think he might be President or certainly an office bearer.

**** JOHN DENNISON XXN MR RIDLEY

PN932

THE WITNESS: Vice President, I mentioned earlier.

PN933

MR RIDLEY: Vice President. So as a consequence, I suppose, what I draw from that correctly or otherwise is that he does have quite considerable knowledge and can at least provide an opinion, speculative though it might be, so at the end of the day its probative value of course may be questionable but I would have thought that at least he could offer an opinion about perhaps his knowledge. I'm not interested in company names, I'm not a scrap interested in that. Just in terms of how he might see other companies and the utilisation of part-time employers.

PN934

THE SENIOR DEPUTY PRESIDENT: Mr Ridley, I continue to have a problem. Mr Dennison may well be the Vice President of the Security Agents Institute but I think the question that you're asking goes beyond the function that he has here today and I'll uphold Mr Clarke's objection.

PN935

MR RIDLEY: Mr Dennison, would you be surprised to learn that there are a number of other Federal, what I'll call Federal State Awards. Awards made in other States that, in fact, do have similar provisions for regular part-time employees, namely New South Wales, the ACT, Victoria and the Northern Territory. This is simply a question of: Would you be surprised if you were to learn - - - ?---Similar to the current Award?

PN936

Similar to what is proposed in 9.2?---Well I would suggest that those Awards have information that is similar to the existing Award in that what you're presenting here is similar to the existing Award. I'm merely stating that the existing Award adequately covers this - this element and doesn't need to be further - further blown up.

**** JOHN DENNISON XXN MR RIDLEY

PN937

Perhaps that's my fault, I didn't make my question clear enough. What is evident in those named awards being ACT, New South Wales, Northern Territory and Victoria, are virtually identical provisions to the 9.2 as proposed by the Union. The question simply is: Would you be surprised to find that such provisions actually exist?---Given the nature of the industry, as I have indicated, I would expect close similarities between the awards and in fact having served in a number of different states I can say that there are some very close similarities between the awards, the current award, and what you are proposing.

PN938

Sure?---What I am saying is it's adequately covered in the existing award and I can't see any valid reason for change.

PN939

Would you see then any basic or fundamental differences between how the security industry operates in WA from the other states or territories?---Well - - -

PN940

In general terms?---Well, let me say that the way that the industry does things in WA is often taken as being a lead in the way other industry, other states apply, and I can cite the one that I cited earlier with the Security Industry Control Activities Act and the way in which we regulate the industry in this State has in fact been adopted as the model for New South Wales. There are ..... within the State. Sometimes WA follows other States and sometimes other States follow WA. It is again the nature of the ebb and flow that occurs within the industry and the interchange of information and ideas.

PN941

Given broad similarities between the states and territories would you be surprised to learn that in the Queensland State Security Act, the Northern Territory, ACT, Victorian and New South Wales Security, sorry Awards I should say, have a redundancy provision virtually identical to the one the Union is proposing?---Well I would probably not.

PN942

Look it is, I am sorry, it is - I don't mean to cut you off, it is actually a relatively simple question that is, would you be surprised to learn if those Awards actually have those provisions?---I probably wouldn't be surprised about anything in regards to those issues.

**** JOHN DENNISON XXN MR RIDLEY

PN943

Thank you Mr Dennison. In reference to Clause 11.1 as proposed, the understanding about Clause 11 in general terms is that it is a reproduction of the 1984 test case on redundancy and related matters. If I was perhaps to ask you to look at - - -?---Sorry, I just can't find, I can't identify 11 out of - oh right, now I have got it. Sorry.

PN944

I beg your pardon, it's 11, subclause (1)(a). The third line. This phrase "ordinary and customary turnover of labour". You, I think, indicating in your examination-in-chief that what you wouldn't want to see is a simple loss of contract by a security company necessitating a redundancy payment. Would you not agree that the wording of 11(a)(1) would actually exclude such possibilities. And I will certainly allow you to have a bit of read of that?---Well I would say that the present Termination and Redundancy Act adequately covers any provisions in that regard. We don't need to add extra clauses to the Award when we go through an award simplification process. I think as many - - -

PN945

Would you have a - sorry - - -?---I think as many acts as we possibly can refer to and save a lot of this verbiage, would be beneficial.

PN946

But there would be some merit wouldn't you say in terms of providing what I might call a safety net set of protections in such an award. Would that be an outrageous proposition?---Well I see the Act as being the safety net.

PN947

What act do you refer to?---The Termination and Redundancy Act.

PN948

I am sorry, I am not familiar with that Act?---Okay. I believe it is a Federal - - -

PN949

Is it that you might be referring to the termination provisions, 170CN I think of the Workplace Relations Act, which doesn't go so far as to embrace redundancy. Termination of course, termination, notices of termination are quite different as I am sure you'll appreciate from any severance pay that happens after severance has taken place?---Well I am willing to agree with you that I might be confused on some of these multi, issues, but - - -

**** JOHN DENNISON XXN MR RIDLEY

PN950

Well you wouldn't have any objection in principle maybe to perhaps having some form of redundancy provision in an award which certainly complies with I think your concern in reference to excluding ordinary and customary turn over of labour. Would you have any difficulties with that?

PN951

MR DENNISON: If it is adequately covered elsewhere, I can't attest to that at this point in time then. If it is adequately covered elsewhere I don't believe that we need to bog down the Award with superfluous clauses. I am all for award simplification and if it is covered elsewhere, we - we don't need to include it here.

PN952

But if it is not covered elsewhere I suppose the question would be could you contemplate the possible incorporation of such a clause, if it's not covered elsewhere?---Well I believe it is and I don't know that it isn't.

PN953

Sure. It is not for us to argue the toss over that?---Okay, so that is a - becomes a hypothetical question which I am not qualified to answer hypotheticals.

PN954

MR RIDLEY: Sure. Thank you Mr Dennison. Moving on to 14.1.1 and 14.1.4. These are two allowances being the first aid certificate or first aid allowance and the alarm reset allowance. You are aware of course that - I know you are aware that in fact the, what is proposed in each of the two subclauses of ALHMU Exhibit 2, are identical to the current Award. Perhaps turning to the alarm reset allowance, you gave, in answer to a series of questions, what I might summarise as being, there being some agreement that the alarm reset allowance is a typo, an anachronism, a drafting person's error?---Draftsman's error, I think I mentioned.

**** JOHN DENNISON XXN MR RIDLEY

PN955

The only question I have for you in relationship to this Mr Dennison is, can you provide any written documentation corroborating or verifying what you are asserting as being an agreement to that effect?---Well I would - would suggest that, that documentation is contained in the archives of the LHMWU of the time. I have since changed companies and don't have access to that information but I can attest to it having occurred. But what we are talking about, as I mentioned earlier, is that the classifications are technology-based and is, this is included in the classifications and if we take Level 1 Security Officer it talks about attendance to basic alarms, and I am quite sure that you and I and his Honour and his children and his wife daily handle these basic alarms. They're the sort of thing they are it is not - it is not a huge issue. It is attendance at basic alarms and in Level 2 it is also attendance and resetting of those alarms. It is incumbent in the actual classification and the wages for that and therefore in award simplification it is something that should be struck out.

PN956

Are there any differences between the State Security Officers Award and the Federal Security Officers Award of WA in reference to, well in reference to the alarm reset allowance?---In fact as I mentioned earlier that the - - -

PN957

Are they identical?---They are; they are in fact on that clause identical.

PN958

Thank you; thank you Mr Dennison they are identical. Has MSA at any time made any moves to seek to vary either the State or Federal Awards in relationship to that matter? A simple yes or no would suffice?---Yes.

PN959

It's made - it's made an application to the Commission, either State or Federal - - -?---Well, you said, did we make - have we made any moves to change it and yes we have.

PN960

Have you made any application to the Commission to vary that Award?---I believe we have.

**** JOHN DENNISON XXN MR RIDLEY

PN961

And what form does that application take?---On a previous application as it related I believe to the national safety net increases. And also in previous discussions with the union executive in getting some of these things rationalised.

PN962

The question is Mr Dennison whether MSA or a representative of MSA has made an application to vary either the State Award or the Federal Award in relationship to the alarm reset allowance?---Well I think I just answered that I believe that we made an application to the Commission in relation to having that matter removed during the course of a national safety net hearing. I mean I am not sure what you mean by application as against what I mean by application and whether - whether I am correct in the technical details, but we certainly put before one of the Commissioners the matter that this should be struck out.

PN963

THE SENIOR DEPUTY PRESIDENT: Mr Ridley I think Mr Dennison's answered the question as best he is able to.

PN964

MR RIDLEY: Yes thank you.

PN965

If we were to look, Mr Dennison, at 15.2 which is simply the matter of whether or not the employer can unilaterally, I think the proposition that MSA is putting up, the employer should be given the right to unilaterally deduct from someone's wages. You are aware of course that the current - the proposed 15.2 is a mirror image of the current provision in relationship to deductions?---I think what led to that was the fact that 15.1 isn't a mirror image of what is covered in the present.

PN966

That is true?---And as a consequence if there is going to be consideration of changes within clause 15, we have looked at the whole of clause 15 as either being changed or the necessity for it remaining there in the award simplification process. So we have moved from the changes that you have promulgated in 15.1 and promulgated changes in 15.2.

**** JOHN DENNISON XXN MR RIDLEY

PN967

So would I be entitled to a form a view that really the changed proposed for 15.2 is not something that is predicated on the basis of, and I think you gave the example of, a glitch of the distribution bank costing you - doubling someone's pay or whatever or everyone's pay. Is this really a realistic possibility?---I think that it is a realistic possibility. Maybe not daily but weekly and monthly.

PN968

Has it actually happened? Has it happened?---Yes, it has happened. It has happened with individuals bank accounts.

PN969

Individual - - - ?---It has certainly been on the news that these glitches occur. And being a pro-active - taking a pro-active approach - - -

PN970

And there wouldn't be any payroll glitches to the advantage of the employer in relationship to the employee?---There are parallel glitches both ways. And the issue is that they need to be addressed as expeditiously as possible.

PN971

And I would imagine that MSA, of course, would very quickly address any glitches that are to its advantage in relationship to an employee?---It addresses glitches that are to its advantage and disadvantage because we need to maintain good morale between ourselves and our employees and payrolls are - pays are one of those areas that we have got to operate expeditiously to resolve any difficulties or outcomes. What I am saying in this regard is there is a potential for a company, whether it be MSA or other companies, to in fact get into severe financial problems if they can't recover a glitch of that nature which is neither to the advantage of the employer nor the employees, if that company happens to fold because it hasn't got the funds. The funds have been taken up by a double pay because of a glitch in the system. And we need to have a mechanism to address that. I am not sure of what the appropriate words would be to bring that about but I am sure we have got enough knowledge within the industry to come up with some words between the union and the industry which would adequately meet that which I am trying to promote.

**** JOHN DENNISON XXN MR RIDLEY

PN972

In the unlikely event that that actually occurred, you are aware that remedies in fact do exist for MSA to recover the money?---Only insofar as agreement between the individual employee and the company and as I alluded to earlier, it is open for individual employees to only enter into an agreement that might allow them to make the payment - repayment on the basis of a dollar per week out of their wages. If that occurred wholesale across the board, it would cripple the company and I am suggesting that that is not in anyone's best interest.

PN973

Have you heard of that happening within the security industry?---I am concerned that there have been some close calls and the potential seems to be increasing when we see what is happening in the banking EFT sector generally. That these type of errors are occurring and I want to be pro-active to protect my company, the industry and the employees within the industry.

PN974

If we can turn to clause 18. 18.1 is what I am concentrating on. I am not sure that the union is actually proposing a change to what is currently existing in the award but certainly it seems that MSA is. On what basis would you be seeking to justify, if you were investigating the conduct of - the alleged conduct of an employee, why that employee, when called back to work, should not in fact get paid for that time?---Well, in the first instance, I don't believe that it is just MSA that is seeking to bring about that change but no doubt time will tell. I think I indicated earlier that our security officers don't start and finish at Newcastle Street, West Perth which you made reference to earlier. They start and finish at the client's premises. Because of an earlier clause that we talked about in terms of pays, that pays now are made on the basis of EFT so there is no reason for the security officers to in fact attend the office to pick up his or her pay. It is deposited by EFT. So, yeah, in effect the whole of that clause becomes superfluous in that respect. What - - -

**** JOHN DENNISON XXN MR RIDLEY

PN975

Sorry. Perhaps I am misreading it. But it seems to me that this clause is actually saying that other than to pick up his or her pay, don't get paid for, that you would in fact be paid for the attendance. Now, the question I had for you, Mr Dennison, is that if you wanted to seek to talk to one of your employees about alleged conduct or a counselling session which presumes, I suppose, in that language that it is proven misconduct or a disciplinary matter, why do you think it is justified not in fact to pay that person as if that person was at work?---Well, it is - again, the nature of the industry, its management by remote control to some respect in terms of the custom and practice of the way that occurs. Given that there is the need to change 18.1 in relation to the matter of picking up pays which doesn't occur, then we need to clarify the fact that the nature of the industry requires certain administrative processes to occur that occur generally between the employer and the employee. And particularly where it relates to discipline, it would seem to me rather strange that an employee, looking at the worst example, either was involved in stealing or in assault or in sleeping on the job, gets paid for the benefit of coming in and being counselled, disciplined, interviewed, whatever on that. We would have everybody being able to increase their pays - - -

PN976

Mr Dennison, thank you. I think you indicated in answer to a previous question that in fact in reference to south west - the north west operations, that you have never had cause to actually do that and that in fact you provided or you actually were to work out an alternative to calling someone in. Isn't then the issue of 18.1 relatively academic?---In relation to north west, we actually had an office in the north west. And that matter addressed itself. In relation to 18.1, given that we - and most companies are metropolitan Perth wide, there are - the security officers travelling backwards and forwards to work across the whole of the metropolis, that it is appropriate that those administrative purposes and disciplinary purposes be considered as part of the process of employment in such an industry as the security industry. It is different to people working in a factory or working in an office. It is the nature of the industry that we are talking about here.

PN977

THE SENIOR DEPUTY PRESIDENT: Mr Ridley, before you continue can I just ask for a time or an indication of how much longer you will be wanting to cross-examine?

**** JOHN DENNISON XXN MR RIDLEY

PN978

MR RIDLEY: I would say probably at the most, another ten minutes.

PN979

THE SENIOR DEPUTY PRESIDENT: We might break for lunch now and I was going to suggest that we resume at 1.30pm?

PN980

MR RIDLEY: 1.30pm? Yes, that's fine.

PN981

THE SENIOR DEPUTY PRESIDENT: Is that a reasonable time for the parties? On that basis, again Mr Dennison, I appreciate you have been in the witness box for a long time but I have to ask that you ensure that you do not discuss these matters with anyone else during this adjournment. Thank you.

LUNCHEON ADJOURNMENT [1.04pm]

RESUMED [1.41pm]

PN982

THE SENIOR DEPUTY PRESIDENT: Mr Ridley.

PN983

MR RIDLEY: Thanks your Honour.

PN984

Mr Dennison, without yet again risking the possibility of labouring a point, perhaps if I might just take you back to the issue of the 3 to 500 contracts, there was one question I actually omitted to ask. Can you give the Commission an estimate of the proportion of static versus patrol. Just some indication of those contracts that the MSA holds?---It's probably - probably of the order of 25 per cent static, probably we've then got 10 to 15 per cent would be ad hoc type of work, and the balance would be patrols.

**** JOHN DENNISON XXN MR RIDLEY

PN985

MR RIDLEY: Thanks for that. Perhaps if I could turn your attention, if I may, to how MSA seeks to allocate work to - in particular I'm making reference to the bulk of the 50 or 60 who are, as I understand it, part-time, what's sort of processes exist for notification or for, if you could just tell the Commission how that works please, how they find out what jobs they are doing?---Well, it's probably different in that 50 to 60 to the rest of what happens.

PN986

Sorry, what do you mean by "the rest of what happens"?---In terms of those because the bulk of what we just talked about is, in fact, patrols and I have set routes and set rosters but, generally in the industry and other areas that I have been involved in, it is done on a roster basis that individual employees, if there is regular work they are provided with the - the work through rosters provided to them regularly and any additional or ad hoc work to build up their hours is provided as and when it becomes available. So there may be a group of people that have regularly rostered hours, there may be another group that have some of their hours regularly rostered and then have their hours made up by ad hoc work as it becomes available and then there may be a group who are probably probationary people you were talking about that get the more inconsistent ad hoc type of work, so it is a progressive thing that goes through the employment as much through the employment process and longevity of service that determines that.

PN987

So, when we talk about that group where we call some rostered with other hours that they might get as it becomes available, what's the process of notification or how might they actually find out about the availability of that work?---Well, you would have a rostering clerk or guard co-ordinator, whatever they are called by the particular organisation, as the work comes in he would communicate with particular patrol officers - sorry, particular security officers - and identify - identify that there is some work available and if they are available for that particular shift or roster or group of shifts, whatever the case may be, again, because of the ad hoc nature of a lot of the ebb and flow of work.

**** JOHN DENNISON XXN MR RIDLEY

PN988

Sure. Now, I may have misunderstood. Was that answer, is a view that you have about the rest of the industry or is that MSA in particular?---Well, if we are talking about MSA in particular, I was initially talking about those people who, in that instance, are regularly rostered but, as we have identified, there are other people that we are involved with, and the industry is involved with, that are regularly rostered, as I said, it follows the nature of employment.

PN989

Sure, but MSA, you'd say pretty much regularly rostered with some consistency there and certainty about from - what's the roster period, is it a week or fortnight?---Fortnightly.

PN990

So, from fortnight to fortnight, are you saying then that the majority of MSA employees would, in fact, benefit - have the benefits of having some sort of fore-knowledge of what they are doing?---And the people that we manage, remember I said that we provide management and administration?

PN991

Yep?---And the majority - well, most of them would be regularly rostered and that regularity comes about by probably their length of involvement in the industry. So as I've tried to indicate, people coming into the industry as probationary officers they get drifted about from different ad hoc casual jobs as they come in, as they gain knowledge and experience they get more and more regular work and longer serving people are perhaps on more regular rosters.

PN992

Because they would be the known quantities obviously with a proven track record?---They're the ones that we said that we try not to lose.

PN993

Absolutely. You made reference to and those other organisations that you manage. Can I assume that's - they're security and can you give an indication of what you mean?

PN994

MR CLARKE: Objection. Objection, he didn't make reference to other security companies.

**** JOHN DENNISON XXN MR RIDLEY

PN995

MR RIDLEY: Oh, yes, he did, to those other companies that he manages.

PN996

MR CLARKE: No.

PN997

THE SENIOR DEPUTY PRESIDENT: I do recall the words, Mr Clarke, "and those other companies". That is - - -

PN998

MR CLARKE: Whether "those other companies" meant his companies or other companies in the industry; the "industry group" was used.

PN999

MR RIDLEY: Perhaps we need to ask Mister - - -

PN1000

THE SENIOR DEPUTY PRESIDENT: Perhaps Mr Ridley might clarify the question to that extent then, thank you.

PN1001

MR CLARKE: Mr Dennison, I understand you were saying, please correct me if I'm wrong, that in your answer to my question in relationship to MSA specifically about fortnightly rosters and what have you that that was the case and so therefore there was some certainty and consistency and I understood you to also add, "and that would be similar to the companies that we manage"?---I did say in light of matters that were aired earlier that I'm involved in providing the management and administrative services for a number of organisations and in that knowledge I have indicated the process that I understand is adopted in - across the industry.

PN1002

Thank you, Mr Dennison. In reference to rates of pay, what would you be paying either your full-time or part-time - I'm not talking about exact dollar amounts but let us perhaps just call it the - ordinary hourly rate of the award? Is that what you would be paying those people, depending on level but I'm talking about award rates, in other words?---Okay. Well, I mean as you - as you're aware of course there are facilities for AWAs under the Federal Award and that the union is not a party to it but let me just say that the base rates that we utilise are those that are identified in the Federal Award.

**** JOHN DENNISON XXN MR RIDLEY

PN1003

I think it would be appropriate then to perhaps indicate very roughly of those 50 or 60 employees, what proportion of those would be paid pursuant to the Federal Award as opposed to, for example, an AWA?---Well the AWA is pursuant to the Federal Award, but the rate of pay is the - is the level 2 classification for most of those I would suggest.

PN1004

Sorry, I think perhaps I'm not making myself as clear as I might, what I'm trying to ascertain, Mr Dennison, is of those fixed 50 or 60 employees as a percentage how many of those would be paid pursuant to the Federal Award as opposed to have been taken off the award by the only means I know how, and that is through an Australian Workplace Agreement?---That's what I just said, it was an AWA.

PN1005

Sorry, you're saying that all of the 50 or 60 employees are on AWAs?---The majority of those would be encompassed under an AWA.

PN1006

Okay. Sorry?---But the rate that we - the rate that we adopt is that which is incumbent in the Federal Award, we're using that as the base.

PN1007

THE SENIOR DEPUTY PRESIDENT: Mr Ridley, I'm not sure if you're going to take this line any further but - - -

PN1008

MR RIDLEY: No, no, no, sorry, that was my misunderstanding.

PN1009

THE SENIOR DEPUTY PRESIDENT: - - - to be honest, I don't know what it's got to do with the issues in dispute.

PN1010

MR RIDLEY: I was actually simply trying to work out whether in fact an ordinary award rate was paid and my next question was: whether anyone was paid a casual rate when they were working part-time, and that was my next question.

**** JOHN DENNISON XXN MR RIDLEY

PN1011

THE WITNESS: Well, we don't employ casuals as a normal matter of course, we employ permanent part-timers and full-time and we pay, as I've indicated, the rate that's endemic in the award for the different classifications in the award.

PN1012

MR RIDLEY: Sure. I have no further questions really.

PN1013

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Uphill?

PN1014

MR UPHILL: There is just one area I would like to ask Mr Dennison about.

<CROSS-EXAMINATION BY MR UPHILL [1.52pm]

PN1015

MR UPHILL: That is in regard to a union proposal in 9.2.5 and I might just clarify that rather than asking you to turn to a document that is not handy, but in summary what 9.2.5 of the union document says is that:

PN1016

Part-time employees will receive overtime when they work in excess of the mutually arranged hours -

PN1017

whatever that might mean, but my question is what is the practice with part-time employees currently when they might work an extra shift or they might work an extra hour on the end of an existing shift, are they paid overtime?---Okay. What I would suggest is that were that to occur a lot of permanent part-time employees would earn less than they currently do now. What the custom and practice is, as I indicated earlier is the part-time employees are given the known hours that are there and available, which may be less than the 38 hours or whatever the case may be. As additional work comes in and is available it is made available to them to take it on board at the normal rates of pay appropriate and whether that is day shift, afternoon shift, night shift, etcetera. If it got to the stage of having to pay overtime if they did those extra things all that would happen is that companies would employ

**** JOHN DENNISON XXN MR UPHILL

additional staff and the existing employees wouldn't get the benefit of being able to increase their earning capacity and that's the reality of what we're really about, is that there's only a certain amount of work available, say, at the beginning of the fortnight, as more work comes in it's made available to the part-time employees to increase their earning capacity.

PN1018

Thank you.

PN1019

THE SENIOR DEPUTY PRESIDENT: Mr Clarke?

<RE-EXAMINATION BY MR CLARKE [1.55pm]

PN1020

MR CLARKE: Just one thing, Mr Dennison, the number of guards, the percentage and everything you've given, you're not 100 per cent sure of that, are you, Mr Dennison?---Well, as I said earlier on at the start of it, I mean I would probably need to have the pay officer present to give me precise information. I mean I deal mainly at the management side of things and I'm giving a guesstimate rather than that and that's why I'm saying sort of 50 or 60 might be - is - - -

PN1021

Thank you, Mr Dennison?---Okay.

PN1022

Thank you. No further questions, your Honour.

PN1023

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Clarke.

PN1024

Mr Dennison, I have a couple of questions and in accordance with my normal practice I will invite Mr Clarke if he wishes to follow up on any of these to do so. Can I refer you to the document ALHMU2?---Yes. Yes, I've got that.

PN1025

Can I refer you particularly to the proposed clause 7.1.2E and indeed F?---Dealing with the disputes settling procedures?

**** JOHN DENNISON RXN MR CLARKE

PN1026

That is correct. Now, if my recollection of your evidence is correct you expressed a concern in relation to that revision in that it might entail a third party going on to a site so that when, for instance, you might have a static guard undertaking work on a given site were that provision to be implemented it might mean that the employees representative would be able to go on to the site?---And it might breach the integrity of the security of the site in that regard. We don't have the authority to give that permission.

PN1027

What I'm particularly interested in is if I refer you to F and just ask were you to be able, as the employer, to determine where this meeting would be held would your concerns in relation to the proposed 7.1.2F then evaporate?---No. Because I think I indicated that security officers often work one out, unlike police or something like that where they're working in pairs or teams or whatever the case. In the majority of the cases a security officer is on his own and what it would mean is a breach of the service to the client for them to be interviewed on site during the service hours and the custom and practice has been that the union meets with its members off site. I mean it might be at the end of shift or something of that nature and I recall occasions when the union has turned up to have discussions with employees and it's been facilitated at the change of shift or at the end of shift or before shift or something of that nature so that the people that we're providing the service to, the clients that the security officers are providing the service to, they're - the integrity of their security is not breached, not jeopardised.

PN1028

Thank you. Can I now refer you to the existing award and to save time I want to read to you the definition of a part-time officer in the existing award and the definition is contained in the existing clause 7 of the award and it simply reads:

PN1029

Part-time officer shall mean an officer who is regularly employed for and who works a lesser number of hours than 38.

PN1030

Now, you've indicated to me I think that MSA don't generally engage casual employees but rather use part-time officers. Is that correct?---Permanent part-time officers and we endeavour to build up their hours as close to 38 as we can with the work that is available.

**** JOHN DENNISON RXN MR CLARKE

PN1031

Thank you. Then how do you define, for your purposes as MSA, regular work in terms of a regular roster?---Well, you might have a client that perhaps only wants a security officer for less than 8 hours, shall we say, two or three times a week and we might have that on an ongoing basis so we might regularly roster a part-time officer to that work which is less than 38 hours and that's the work that we have going into the pay fortnight if we can say that. Then as and when other work might turn up on this ad hoc nature, ad hoc type of work, casual work or new work then additional work becomes available, additional shifts become available and they're made available to those part-time officers. So they may have worked 18, 20 hours a week on a regular roster, they are then provided the opportunity to increase their earning capacity by doing these - this additional work that comes up.

PN1032

So the regular roster is defined or redefined, as the case may be, on a fortnightly basis?---It's - it may be a standing roster that's available on an ongoing basis, it's just the pay fortnight comes up each fortnight and the rosters are used as a means of generating the pay but the security officer knows that he is regularly rostered to that site. He may be rostered to that site for weeks or months or even - or even years, that becomes part of his regular roster. The additional is what is perhaps his - additional work comes up, he is called up, asked if he wants to do the work, that is then put on that roster, his roster, for that particular fortnight in addition to the regular work.

PN1033

Very well, but what I'm particularly interested in is whether in the event that you can see a fortnight in advance and some regularity associated with work then that meets the definition of "regularly rostered" according to MSA?---Yes. It could be regularly rostered for a period of time rather than ad hoc that might come in backwards and forwards itself. We know we've got work for three months, shall we say. He can be regularly rostered to that particular location or site for three months. On the other hand, it may be that we've only got two or three weeks work and he would be given the roster for that two or three weeks work that applies at that time and then any additional work that becomes available, he or they are offered that additional work to build up their hours.

**** JOHN DENNISON RXN MR CLARKE

PN1034

Thank you. Now, notwithstanding that MSA don't generally engage casual employees, can you tell me whether you are aware if there is a threshold point or threshold number of hours below or above which casual employment would become a more viable proposition from the employer's perspective?---I think it's - I think it's economically more viable from the employer's point of view, equally beneficial and attractive from the employees point of view in terms of the operation of part time rather than casual employment. I think it's slightly more expensive on an hourly basis for casual in terms of the dollar payments and the on cost but on the other hand the permanent part-timers achieve the continuity of employment accruing the benefits of annual leave, long-service, sick leave and the like and the indications are that the majority of employers prefer the part-time employment for that very reason and employers generally prefer to know that they've got a pool of permanent employees that are available for servicing the clients.

PN1035

Thank you. Now, some discussion in the course of your evidence relating to contracts, what would be the normal situation in terms of notice of cancellation of a contract?---Commercial reality applies in many respects. We have contracts that require three months notice of termination of employment but the reality is with the ebb and flow that I've talked about before, jobs come and go and come around and what have you, so often commercial reality is that we are lucky if we either get or accept one month's notice in that regard. Because of being a contracting industry, what obviously the companies don't want to do is burn their bridges with the prospect of regaining that client at a later time. So it's rare, I believe, to hold clients to the three months termination of notice; we would rather try and part on good terms with the ability to come back again and that is generally what happens. We try to hold the clients at least to the current invoicing period of - or a month, whichever is the greater in that regard.

PN1036

Thank you. Can I take you back to ALHMU2 and to clause 14, which is proposed in that award. In particular the 14.1.1 which relates to first aid. As I understood your evidence, it was to the effect that the first aid certificate was, if not already and rapidly becoming the condition of employment?---Yes. I wasn't in a position to confer with my counsellor but the process that I indicated is correct. I was of the view that it was currently - first aid was a module within the certificate 2 and it's only my research over the last couple of

**** JOHN DENNISON RXN MR CLARKE

days to confirm that in fact what transpired when the certificate 2 first came out after the Security and Related Control Activities Act, first aid was a module of certificate 2 and there was a change in the national competency and 2 and a few other national organisations where it became in the revamped certificate 2, an elective and at this point in time it is being revamped once again for it to be a permanent - a module of the certificate 2 again. So somewhere along the line it must have dropped out of the - dropped through the cracks and they're picking it up and putting it back in there.

PN1037

Do you currently have at MSA security officers who do not possess the first aid certificate?---None of them in fact - I think all of the security officers employed by MSA have undertaken a certificate 2 course that does encompass first aid. I mean, it's - I mean it's a strange situation but it's only recently become known that the module had in fact become elective rather than a designated module so in fact not too many people know that its - it is not, at this point in time, at this point in time it's become an elective but it will reverse again. So it's still - first aid is still being delivered as part of the certificate 2 even though it's now an elective, not compulsory and it's about to become compulsory again.

PN1038

So then can I ask, from MSAs perspective, solely from MSAs perspective, all of your security officers would then be receiving the allowance, first aid allowance?---No, because it's not a condition of employment.

PN1039

I see?---I think I covered in my evidence that many security officers even before that used to undertake to take first aid training but usually it used to become a requirement, if it became a requirement on a specific site then they were required to have and be paid; but many officers took first aid training just as a matter of course and self-development and then since the new Act came in, I think about three and a half years ago, all new licensees have taken first aid as part of the training course.

PN1040

So if Mr Ridley applied for a position as a security officer with MSA and didn't have a registered first aid certificate, would he be eligible to gain that employment?---Well, he would certainly be eligible. We consider individuals for employment on their particulars, sir.

**** JOHN DENNISON RXN MR CLARKE

PN1041

I understand that. I am not asking whether you would give him a job, I am simply seeking to clarify the extent to which the possession of a recognised first aid certificate is or isn't a condition of employment at MSA?---He certainly would be eligible for employment with MSA.

PN1042

So it is not a case that the possession of that first aid certificate is a precondition for employment?---No, but logically we look for people with the best qualifications that are available in the industry for employment within MSA. So, I mean, somebody that's got first aid training, somebody's that's got occupational first aid training, somebody's that has got particular skills in certain areas, would prove more attractive to us as prospective employees.

PN1043

Thank you. Once last question, if I can refer you to the proposed clause 18 in ALHMU2. Can I just ask there, have employees of MSA been required to come back in to the MSA offices for disciplinary reasons or counselling discussions and having done so been able to satisfactorily explain the behaviour that was at question? Perhaps I can put my question more clearly: if an employee is the subject of a complaint by perhaps a client and MSA call the employee back in to their office, has it ever happened that the employee has been able to satisfactorily explain their behaviour?---Yes, it has.

PN1044

Thank you. Now, Mr Clarke, to the extent that my questions occasion you the need to further question Mr Dennison, please feel free to do so.

PN1045

MR CLARKE: Thank you, your Honour.

PN1046

Mr Dennison, you stated that rosters generate the pay. What happens when the rosters go to the pay office? Do they stay as roster sheets, Mr Dennison?---They, in fact, become the pay sheets, I guess, in that regard. The information is transposed from there into the payroll processing system.

PN1047

We have gone over this before, Mr Dennison. What do the sheets become?---Well, they start off as roster sheets. I'm not quite sure of the question but from the rosters they generate the pay.

**** JOHN DENNISON RXN MR CLARKE

PN1048

Yes, but they don't stay as roster sheets, do they?---They become the pay slip. Well - and the other thing is they become the record of employment.

PN1049

No further questions.

PN1050

THE SENIOR DEPUTY PRESIDENT: Mr Dennison, you have been in the witness box for a long time. Thank you very much for your evidence. You are released.

<THE WITNESS WITHDREW [2.15pm]

PN1051

THE SENIOR DEPUTY PRESIDENT: Mr Clarke, you have one further witness.

PN1052

MR CLARKE: Your Honour, there is a bit of problem I believe at the moment, Mr Uphill spoke to me about. Mr Uphill's witness is apparently, I think his spouse is ill and he has got to pick up his children so with your permission I've got no qualms about him taking the stand so he can get away to look after his children, if that's okay with yourself, your Honour.

PN1053

THE SENIOR DEPUTY PRESIDENT: If the parties are happy with musical witnesses, I am very happy with them, too. Mr Uphill?

PN1054

MR UPHILL: Your Honour, I have indeed spoken to Mr Clarke and also Mr Ridley and both are happy with that change in the procedure and I would ask, in accordance with that, that Mr Stephen Connell be called to give evidence.

<STEPHEN CRAIG CONNELL, SWORN [2.16pm]

<EXAMINATION-IN-CHIEF BY MR UPHILL

PN1055

MR UPHILL: Mr Connell, you are the WA Government Railways branch manager for Chubb Protective Services?---Yes.

PN1056

How long have you been with Chubb Protective Services?---November this year, 12 years.

PN1057

I wonder if you could tell the Commission how many employees Chubb Protective Services have in this State, approximately?---Approximately 500 permanent and approximately 800 all up.

PN1058

Can I start by asking you some questions about some of the material that is already before the Commission. Firstly, is there a trend in the industry for companies to employ increasing numbers of part-time people rather than full-time people?---No.

PN1059

Is it true that your organisation provides a large number of hours to work to people on probationary employment?---No.

PN1060

Is it true that once people move from being on probation to permanent part time that their hours are reduced?---Incorrect, no.

PN1061

Can I ask you if a security officer is not employed at a permanent site, how do they have work allocated to them; what's the process?---We have what we call part timers. They are relief staff for all our permanent sites. They obviously have to go through some induction training at sites specific. Some sites obviously have a client feedback on whether they are suitable for the site or not. They then, after going through the specific training at individual sites, are then placed on an availability roster. Most of the part timers ring in before Wednesday of each week and ring up on the Wednesday or subsequently thereafter to make themselves available and they run accordingly to fill relief shifts as they come up. Obviously we have a need for part timers to fill vacancies created through leave, through compassionate leave, through maternity leave and other circumstances, but most of the time it's through the operations department. It's on a relief basis.

**** STEPHEN CRAIG CONNELL XN MR UPHILL

PN1062

Is there a core of hours that are able to be allocated to permanent part-time people?---What do you actually mean by that question, sorry?

PN1063

Are there a set number of hours that are able to be allocated to a part-time person that might be added to during the course of a week or a fortnight?---No. I mean, the relief employee, they are there to fill a void in a roster and therefore we can't guarantee that there will be X, Y, Z because it may not come about and in the next fortnight subsequent to that, they might get 80 hours.

PN1064

Mr Connell, yesterday we had evidence from an employee of Chubb Protective Services, a Mr Richard Whitworth, and his evidence in part was to complain about a lack of work that he had received from the company since 1999 when your company lost the contract to provide car parking servicing to the Perth City Council and his complaint was that he had not had sufficient work or the work that had been allocated to him was very ad hoc. Is there any explanation for the amount of work that has been allocated to Mr Whitworth since 1999?---Not knowing Richard Whitworth personally, I was asked this morning to bring some information today and I've obviously researched the information this morning with the acting State guards manager, Don Cruise. Mr Whitworth, in August 1999 was informed in writing that the Perth City Council contract had been lost in fact by Chubb's to Panther Security. At that time a nominated date was guesstimated at best which would be the end of September. However, the Perth City Council, unbeknown with that letter being mailed, on the day then wrote to them and said the contract actually finished at the end of that month. Mr Whitworth was then placed on part time and with the next available permanent position or the next available permanent position for all those people that were put on in that position, coming available, would be considered for those positions. He subsequently since 1999 to date has done 217 hours of training at seven different sites. That training, as I said before, is to make him fully aware of what a post is all about and to have full knowledge of the operation requirements of a security officer on a designation place. On that training and on that provision he has had five of the clients out of the seven posts he has actually done training at, requested he not return to their site as he is not adequately doing the job, even though he has had, as I said, 217 hours of training. I've got the documentation there should you wish to see it.

**** STEPHEN CRAIG CONNELL XN MR UPHILL

PN1065

MR RIDLEY: I do have some difficulties with this line of questioning because it is quite clear this is an endeavour to besmirch the credibility, the reputation of the officer in question. My concern is that after kind of lengthy interactions with various companies, not the least of which is Chubb, is that what we often find is that clients will proffer some comment about a particular security officer. It may or may not be true. What tends to happen is that the company will simply say, "We couldn't possibly put that person back there," so there is a red mark regardless of whether or not it was a legitimate complaint or not. So simply offering, without any ability to have this matter fairly or squarely put to my member, in which case it becomes like, you know, let's crucify poor old Richard Whitworth and lose sight of what might be the plight of part-time employees, I am somewhat concerned about this.

PN1066

THE SENIOR DEPUTY PRESIDENT: Mr Ridley, I am going to allow the question but in doing so I make it clear I am not making any assumptions at all about either the integrity, the ability or the capability of Mr Whitworth.

PN1067

MR UPHILL: Thank you, your Honour. You will appreciate that there are obviously two sides to every story and as a result of Mr Whitworth's evidence yesterday I was unable to have an opportunity to check the evidence that was being given and, hence, the reason for Mr Connell now being asked abut Mr Whitworth's situation. Certainly I acknowledge that these issues were not put to Mr Whitworth but if Mr Ridley wants to address that in some way in the future, that is up to him. But I need to get this material before the Commission, in my view.

PN1068

Mr Connell - - -

PN1069

THE SENIOR DEPUTY PRESIDENT: I understand that, Mr Uphill, but I would also remind you that we need to focus on the issues that are in dispute.

PN1070

MR UPHILL: Absolutely, absolutely.

**** STEPHEN CRAIG CONNELL XN MR UPHILL

PN1071

THE SENIOR DEPUTY PRESIDENT: The capability of otherwise of any individual is not in dispute. What we have in dispute are a number of award provisions and I am not quite sure how far down the path of addressing those award provisions, this line will take us. But I will bear with it for a moment, if you want to continue down that path.

PN1072

MR UPHILL: Yes. I accept those comments. But in response, I would have to observe that it wasn't the employer respondents who chose to bring this line of information to the Commission. I need to deal with the substance of evidence that my friend brings and a lot of the substance of the evidence was in terms of Mr Whitworth complaining that the hours were insufficient or that he didn't have access to annual leave or sick leave. A lot of that material is, as you correctly observed, irrelevant to an award simplification exercise. But having - - -

PN1073

THE SENIOR DEPUTY PRESIDENT: Well, let me make it quite clear. I have not indicated that some of that material is irrelevant to an award simplification exercise. Clearly, one of the critical issues in debate here goes to the mechanism whereby part time employment and casual employment is determined. And to that extent you should be under absolutely no illusion - I have listened very carefully to the evidence of Ms Testar and that of the other two witnesses that we have had. And I haven't as yet formulated a view, so you ought not presume that any evidence is irrelevant in that regard.

PN1074

MR UPHILL: Okay. Perhaps I will leave that line of comment to be incorporated in the submissions I put. But I am pleased that that comment is out in the open, because it re-affirms, I think, the need that I should put these sorts of questions to Mr Connell, to deal with the possibility that this material may be something that the Commission does take account of.

**** STEPHEN CRAIG CONNELL XN MR UPHILL

PN1075

Can I ask you, Mr Connell, about the five of seven occasions, I think you said, that Mr Whitworth had been asked by clients not to continue working at the particular client site. What was involved with those occasions? Can you provide any information on that at all?---The only comment that I got back this morning, and I have not seen anything in writing, is to say that he was working at the site and the client deemed that he hadn't done enough during his - of taking any information during his training shifts. And hadn't fulfilled the obligations placed on him as a security officer at a particular site.

PN1076

Okay. Are you aware of whether those issues were taken up with Mr Whitworth or whether or not there was formal documentation?---Yes, on each occasion the Operations Department actually did contact Mr Whitworth, explained the situation, and then subsequently give him another opportunity at another particular location. After the last one, Mr Whitworth was actually brought in, spoken to and counselled by Don Cruz and the supervisor and - Bruce Winter. And formally given that in writing to explain the position that was taken. And he subsequently since that has had two other additional training jobs.

PN1077

Can I ask you about one of the clauses that the union seeks to insert into the simplified award. And that is in the clause dealing with dispute resolution which is clause 7. And in sub-clause 7.1.2(e), the union is seeking a clause which says where a union delegate is involved in step 1, he/she is allowed the necessary time during working hours to interview the employees and the supervisor. And sub-clause (f) is in very similar terms. I wonder if you could tell the Commission what problems you see with that sort of clause going into the award?---Okay. From a manager on a specific contact?

PN1078

Hmm?---We have some 160 employees on my particular location.

**** STEPHEN CRAIG CONNELL XN MR UPHILL

PN1079

This is the Westrail contract that you are talking about?---Yes, yeah. We have a high union membership amongst our particular site. And at the moment we have a union delegate for the SSOs, what we call Service and Security Officers. And one for the Station Security Officers. If - with that amount of employees and the occasional problems that may occur between an employer and an employee, over many different issues, I have a contract that guarantees to some certainty, like most contracts between employers and employees, a level of service that my officers must give my client. If my officers were both at a same location - let's say that both of them were located at Joondalup Station. And incident took place that involved both SSOs and security officers, I believe if this clause went in, it gives them the flexibility of sort of basically downing the tools and tear off in their cars or jump on a train and go and interview people for the rest of the night instead of being on their location. And at a key location such as Joondalup, we - it puts our contract in jeopardy because we can't guarantee the level of service that we are supposed to. The second one, it gives them the flexibility to come up with many varying reasons why they want to go off and do other things other than their job. And that is my belief on this particular contract. On the generic of Chubb business, again, the guarantee of service to our clients is at the main point of why businesses look to outsource particular jobs. And they look to outsource for many varying reasons. But one of them is a guarantee of service. They go with large companies, I believe, because they have the ability to have that back-up. That if someone is sick, they can be covered the shift. If someone goes home because they are ill, someone will be there immediately to take their place. In this scenario, it will take away that flexibility and it will take away that underwritten rule in most contracts of a guaranteed level of service.

PN1080

So do you conclude that the clause doesn't limit the amount of time that a delegate may be off interviewing employees?---I think it opens a can of worms that a person could be off for ever and a day. It doesn't - you could say there is - if you put a mechanism in or if there is a mechanism built into the clauses that says they will do it in consultation with me, consultation means, give me a call and say, "I am leaving my post. I am going here." That is consultation. So I don't believe that there is any mechanism to stop them from wandering away from their key responsibility which is the security and the - again, the WAGR contract, the security of the passengers.

**** STEPHEN CRAIG CONNELL XN MR UPHILL

PN1081

Okay. And do you also conclude that the clause doesn't limit the subject matter of any interview that might be sought to be had with employees?---Agreed. And I will give you an example. It says "and the supervisor". We don't have many supervisors on the WAGR contract we do. But on most other sites we have one generic supervisor that does all sites. But there is not many site supervisors. So a supervisor - a generic term for team leader, senior officer, whatever, or does that mean they have got to go to Belmont and chase down the supervisor? I don't know.

PN1082

Okay. Could we move on to look at sub-clause 7.2.(a) which talks about employee representatives being granted paid leave to attend certain courses. I wonder if you can tell the Commission what the practice is at Chubb Protective Services about employees attending training courses?---Chubb's position is we don't strongly object to the union delegates or representatives of the employees going off to do courses. In our enterprise bargaining agreement between the union, the employer and the employees on the rail system, we have a clause that specifically says that with consultation and agreement between the employer and the employees, we will send them off on any training course that we see will benefit us.

PN1083

Sure. Look, leave aside any agreements that you might have?---Yep.

PN1084

Can we go back to the situation that applies to award employees who might not be covered by any agreement?---Yeah. Okay. Continuing on. Other than that, the - Chubb's position is that that again is like 7.2 above it, (e) and (f), which creates another open can of worms where where does the pot of gold finish? I mean, at the end of the day, we have sent people off to do union courses and I have never - to date, I have never seen an accredited training certificate being shown to me after a person has been granted a leave of absence from work to attend a course.

**** STEPHEN CRAIG CONNELL XN MR UPHILL

PN1085

Right. Can I ask you about the payment or lack of payment that people might receive when they attend courses. What has been the practice in the past?---The practice in the past is that we have not actively participated in sending people off for union organised training. We obviously have requirements for having people trained in, you know, OHS or other matters that are work related, directly work related, but in regards the union, no. The practice has not been - it has been on a case by case basis and judged for its importance on the WAGR contract. We have had occasions where we have supported it and we have had occasions where we have said, no.

PN1086

Supported in terms of time off or in terms of payment for time off?---Payment for time off on two occasions and on more than that, we have said, no. Because unfortunately, like OHS reps, they come and go very, very quickly.

PN1087

Can I take you to clause 9 of the award that the union seeks. And 9.2.2 which talks about:

PN1088

At the time of engagement, the employer and the regular part time employee will agree in writing on a regular pattern of work, specifying at least the hours worked each day, which days of the week the employee will work, and the actual starting and finishing times each day.

PN1089

Can I ask you to tell the Commission what the practical effect of that would be to Chubb Protective Services?---To be frank, it means that we may as well close the doors and not participate in the security industry. I mean, to say that we can regularly attain a pattern of employment for part time workers - as I have explained, a part time worker is a relief worker. If we have a client ring us at 2 in the morning and say, "I have had my window broken and I need a guard to stand outside", I then go to my list of people I am paying to be at work but who haven't got a post and say, "This one might suit my purpose. I will bring this person on." Well, we may as well do away with part time employees and only say to businesses, we will only take permanent contracts on board and allow someone else to do part time work, if that came in. We would not participate in that clause whatsoever. And we strongly recommend that that is not added in.

**** STEPHEN CRAIG CONNELL XN MR UPHILL

PN1090

What about the next sub-clause, 9.2.3. It says that:

PN1091

Any agreed variation to the regular pattern of work will be recorded in writing.

PN1092

What impact would that have on the business?---Well, we have already tied up in - operations people enough with answering phones and filling shifts. And now every time they speak to someone, they have got to type it, put it in writing, print it, post it and make sure the person gets it on time. If the shift is immediate, how do you get it to them in writing? It is - again, goes with 9.2.2. It is inappropriate and it is untenable from Chubb's position.

PN1093

Skipping a sub-clause and moving on to 9.2.5, it says that:

PN1094

All time worked in excess of the hours as mutually agreed will be overtime and paid for the rate prescribed in clause 17 - Overtime.

PN1095

Leaving aside what is meant by working in excess of hours mutually arranged, and assuming it has a meaning where hours are in addition to a regular shift or hours involve an additional shift, what is the impact or what is the current practice at Chubb Protective Services in terms of how additional work is paid for when it is offered to part time people?---So are you talking about an extension of shift or an additional shift?

PN1096

An extension of a shift and also an additional shift?---Okay.

**** STEPHEN CRAIG CONNELL XN MR UPHILL

PN1097

How is that paid for?---Well, a part time worker is a relief worker. So if I gave you 4 shifts this week and next week I got none, and I all of a sudden get two, and you have made yourself available, I would give you two shifts. It is paid at the ordinary rate. You haven't accumulated more than 80 hours as per the award so, therefore, you are not entitled to overtime. However, if you are on shift and it is a 12 hour shift and the relief hasn't turned up, then obviously we pay the penalty rates. Because it is an extension shift. But on the reverse side of that, and it has happened regularly, that if a person goes to a site and is deployed on that site for 3 hours, has no subsequent shift to go to, and the client asks - requests for the guard to extend for another 3 hours, the person is only on a 6 hour shift and is, therefore, under the award paid at the ordinary rate for the entire shift. So, again, that clause is not in the benefit of the employer but purely for the employee.

PN1098

What about on that situation - you have just given us an example of where the part time person might be employed initially at a site for 3 hours and the client says, "Well, I need you there for another 3 hours." If you were to pay overtime for that additional 3 hours of work, what would the practical effect be?---Well the practical effect is that we would lose money on the site. It is that simple. I mean, the fact is that apart from probably one or two clients that I know of, and mine being one, they agree to pay an overtime rate. Most sites are managed - and it is not Chubb - only Chubb business. It is most business. You put in a rate per hour Monday to Friday, Saturday, Sunday, a flat rate, whatever it is going to be, and any hours that it takes you to fill that roster and that guarantees level of service operating is charged at that rate. We continually audit in our fortnightly meeting at Chubb how much overtime we pay out. And we are continually trying to improve the amount of overtime being minimised. This exercise will maximise our overtime and, therefore, become cost restrictive and will eventually, as I said, we will just go to permanent employees and permanent posts and that is the position we would have to take if that clause was instituted.

**** STEPHEN CRAIG CONNELL XN MR UPHILL

PN1099

Can I ask you about how the work is allocated to part time employees when there is an additional amount of work available in - going back to the example you gave of 3 hours work at a particular site and the clients says, "I want you there for another 3 hours." What is the mechanism whereby the additional work is offered to the part time person and if it is declined, how do you deal with it?---Usually the Operations Department is manned in Chubb business 24 hours a day by staff, fully manned. If a client requests for a person to stay on - we have had scenarios where a window has been broken at 10 o'clock at night. You put a guard there initially for 3 hours. The glass guy is going to come, he is going to fix it, he is going to board it up. When he gets there, he doesn't realise how big it is. It is not just a normal window. It is ten times the size. It is pane. And he hasn't got enough wood on board and he has got to go away and he has got to get the right wood and come back. The client is one site usually at that stage. He then requests the Operations people that the guard stays until the job is finished. And it may be an additional 3 hours or he may not get back until the next morning. We then offer that guard the opportunity to stay on. If he is not available, we have a Guards Inspector on the road every night. And he would then relieve the person if they had to leave exactly 3 hours. And a new guard would be ordered for the post.

PN1100

Okay. Mr Connell, can I ask you about 9.6.1 of the union's proposed award. It says that:

PN1101

Weekly and part time officers must be notified by a legible notice displayed in a place accessible to such officers of the commencement and ceasing times of ordinary hours of work rostered by the employer not only the one week prior to the operative date of the roster.

PN1102

Can you tell us what impact that particular clause would have on your operations?---I will just give you my answer for 9.2.2. It is exactly the same.

PN1103

Okay. So I do I take it that it is not possible to give a week's notice of - - - ?---No.

**** STEPHEN CRAIG CONNELL XN MR UPHILL

PN1104

- - - the hours that a security officer will be working? Okay. If we come on to clause 11, the Redundancy clause. Without going through the clause, can I ask you whether or not you think the redundancy clause is practical in the security industry?---Well, we have an industry that is based on retaining of contracts. Contracts generically across all companies is - depending on ebbs and flows, whether a client likes your service or doesn't like your service, whether they find a better price or a better service from someone else or whether they believe in - and it has happened on numerous occasions, whether they believe that taking those officers back in house is their best option. The problem with that clause is that through the normal practice of contracts changing and officers need to be redeployed, like the officer that you spoke about earlier, where every opportunity is then made to redeploy them in the same position, in the same standing like a level 3 officer not going back to a level 1 because of the pay rate difference. That's not possible. It's not possible all the time. If we lost the WAGR contract, I'd have 160 permanent employees. I only employ two part-time employees by agreement, in writing. At the end of the day they would all be looking for a new job and I would try my best to find them all a new job within our organisation. However, the difficulty of finding 160 permanent employees' hours on the available rosters that we've got is near on impossible. And I will say it is impossible.

PN1105

The Westrail contract that you spoke about, that would be the largest contract that Chubb Services have in the State, is that right?---Yes.

PN1106

Okay. So most of the contracts involve the employment of a lot less number of security officers?---Yes.

PN1107

Are you able to tell the Commission what number of security officers might be employed on a static basis on a particular contract or is that too difficult?---Yeah, it is. I'll just say this much. With the number of people that - that Chubb employ across the State, the number of security officers across the State, if tomorrow all of them - we lost contract with all of them under this clause, it would cost the company $160,000 in redundancies. We've - we've crunched the numbers based on this clause and there's been no - and I repeat, no money put aside for redundancies. It's not been a clause that's been in the current agreement, in the current award, and therefore we've had to look at the financial viability of such a clause and the impact that is on our business. I don't know. I don't know how to answer your question.

**** STEPHEN CRAIG CONNELL XN MR UPHILL

PN1108

I think you've answered it. Thank you. Can I ask you to turn to clause 18, the proposed award? In fact, the proposed award that Mr Ridley and the union have put forward, clause 18, is identical to what's in the existing award. There is a change to the existing clause that employers are putting to the Commission in these proceedings and it's in regard to 18, subclause (1). You may not have it in front of you so I'll just briefly read that clause to you. It indicates that:

PN1109

An officer required to attend the employer's premises for other than discipline or administration purposes must be paid for the time involved in each such attendance.

PN1110

End of quote. What is new here is that - - -?---I've read it.

PN1111

- - - you don't have to pay a call out in circumstances where the employee is coming in for discipline or administrative purposes. Can I ask you to perhaps explain to the Commission the change and the impact behind any change to this particular clause?---The call back clause that - I've read both - both clauses, obviously. On numerous occasions I will call people in for - with 160 employees on a contract and with 500 permanent employees in the State, we would have opportunity to bring people in for discipline hearings mainly, coming in to the office, but I - I'll give you an example. If a guard started with us today and did an induction and went out to a site, got his first pay and found that he'd got half his pay and the reason was he didn't tick question 9 on the tax file declaration, which means you're claiming the tax free threshold. He would then have to come back to the office and sign it and it's got to be sighted by the payroll officer and it's got to be presented to payroll in Sydney because they're not here, the pays are done in Sydney. That's - the onus is on him. He's made the mistake and we in this circumstance - the way it's worded in here - would be responsible to pay him, under the award, 3 hours. And it may be that he then needs 8 hours off between his breaks and he's got a rostered shift that afternoon and we're going to be in breach of the award again and you double dip and you end up paying him overtime for his shift. So I think the clause in regards to discipline hearings; where the person's obviously coming in for a discipline hearing is - if they are found guilty of the charge, why should they be paid? However, there has been cases where officers have been found not guilty and particularly my contract, and we subsequently then do pay them.

**** STEPHEN CRAIG CONNELL XN MR UPHILL

PN1112

Okay?---And that's the norm across Chubb board.

PN1113

Right. Okay. I wonder if the witness could be shown a document, please, Deputy President? Thank you.

EXHIBIT #CCI1 CHUBB MEMORANDUM DATED 8.8.01

PN1114

MR UPHILL: Mr Connell, I don't believe you've actually seen this document before?---No.

PN1115

Okay. Your Honour, I might just simply have this document entered into the record without asking this witness about the document. I wasn't sure whether Mr Connell had actually seen this document and obviously he hasn't. It's a matter that will be the subject of submissions. It may be convenient to put it in now, as you've done, rather than it go in as part of materials that will be dealt with in submissions. I'm happy for it to be left on the record as it is.

PN1116

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Uphill, before you go on, I'm just wondering whether I can raise with Mr Connell, who I understand has an ill wife and will need to go home, and I'm very conscious that you've been waiting for the better part of the day. Mr Connell, can you advise me of your time constraint?---By 3.30 would be fine, your Honour.

PN1117

Very well. We'll see whether we can possibly complete your evidence in that time?---Thank you.

PN1118

MR UPHILL: I've actually concluded the questions I wanted to put to Mr Connell.

**** STEPHEN CRAIG CONNELL XN MR UPHILL

PN1119

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Ridley?

PN1120

MR RIDLEY: Yes, I do, but could I just for a moment please seek a very brief adjournment?

PN1121

THE SENIOR DEPUTY PRESIDENT: We'll adjourn for a couple of minutes.

PN1122

MR RIDLEY: Thank you very much.

SHORT ADJOURNMENT [2.53pm]

RESUMED [3.01pm]

PN1123

THE SENIOR DEPUTY PRESIDENT: Mr Ridley?

<CROSS-EXAMINATION BY MR RIDLEY [3.01pm]

PN1124

MR RIDLEY: Thank you, your Honour.

PN1125

Mr Connell, you indicated you had 12 years service at Chubb? Can you please just tell the Commission how long you've had exclusively as the Government Railways Branch Manager?---3 years.

**** STEPHEN CRAIG CONNELL XXN MR RIDLEY

PN1126

You made reference in some of your early answer that you believe there are approximately 500 permanent employees of Chubb and I think you said 800 all up. Now, I do understand that the document that's now been provided by Mr Uphill as prepared presumably by Mr Sullivan certainly perhaps gives us a better idea, but can you - I know that this is difficult because you haven't been involved in the production of the document, but you indicated 500 permanent - perhaps on the basis of the knowledge that you have, could you give an indication, please, of the number of permanent full-time people as opposed to part-time people employed by Chubb?---500.

PN1127

Sorry, permanent part-time?---Permanent.

PN1128

Sorry, in terms of full-time people, portion of the 500 or so - - -?---500 full-time employees.

PN1129

Five hundred full-time?---300 part-time employees.

PN1130

So that's where we get the difference of 500 or 800?---Yeah. That's roughly.

PN1131

Okay. So we would understand the letter dated 8 August provided by Mr Sullivan as being simply that of, we are surmising, of permanent full-time employees?---Surmising.

PN1132

Okay. You've indicated that you don't believe there is any trend in the industry in terms of a move from part-time to full-time - full-time to part-time. Can you give us perhaps a depiction over the years that you've been employed, or is this outside your knowledge, in terms of the numbers of full-time, part-time staff as a proportion to one another?---The trend's always been roughly the same.

PN1133

So the pattern, you're saying, is - in a sense what you're saying is that the majority have been full-time and the rest have been made up by part-time?---That's correct.

**** STEPHEN CRAIG CONNELL XXN MR RIDLEY

PN1134

The situation of people finding themselves, and the 500 or so that we've got as permanent full-time, what sort of contract turnover does Chubb, or how many contracts does Chubb actually currently have?---Sorry, I'm not aware of that.

PN1135

So obviously you can't give us an indication of what the turnover rate would be?---No.

PN1136

Of the contracts are?---No.

PN1137

Does that mean that you can't give us any indication at all as to when contracts are lost, how many of those 500 full-time permanent people might be subject to being placed on part-time?---No. I wouldn't have any knowledge of that whatsoever.

PN1138

So you'd be saying that those 500 full-time, permanent full-time people are - how would, in general, do you think they might be deployed? Are they deployed on sites or patrols?---Sites as in static guard posts and since I joined the company in '89, with the buying of MSS in '96, 500 has been pretty consistent since '96. So if that's an indication of turnover, it's been reasonably consistent. About 500 full-time employees.

PN1139

And we understand that the Westrail contract comprises approximately 160 permanent, well, pretty much permanent full-time people?---Yep.

PN1140

So what we're talking about then, other than that one contract, is approximately 340 other full-time permanent people?---Agreed.

PN1141

And you'd say that in terms of the contracts that they've been working to, that they've been consistently working on those contracts for quite a considerable number of years now?---Yep.

**** STEPHEN CRAIG CONNELL XXN MR RIDLEY

PN1142

Is that what you're saying?---Agreed.

PN1143

What does actually happen when there is a loss of contract and someone who is full-time permanent is affected by that?---When we notify - when we're notified that a contract has been lost, we send a letter which I have a sample copy of Mr Whitworth's, and that letter indicates to them, the employee, that in fact we have lost a post and that they will be reverted to part-time and any permanent position that comes up, they will be fast-tracked to get that position, suitably trained and given the opportunity to take up the position if they're - if they are suitable for that position.

PN1144

In reference to the 300 or so, do we call them permanent part-timers, presumably? Is that what we call them?---Well, yeah, permanent.

PN1145

How are they deployed, on a day to day, week to week basis?---They have a roster of hours and they work on a roster.

PN1146

When you talk about this roster, where does this roster come from?---From Operations in Belmont.

PN1147

And how do they find out about this roster?---Do you want me to give you an example other than Westrail?

PN1148

Well, I think we'll steer clear of Westrail for the time being?---Okay. Okay. I'll give you an example at Woodside in - in Karratha. There is 14 ESOs on site. They have a fortnightly drop-down roster. It's in the workplace. It's produced by the on site manager and the payroll is obviously done by an office-based person in Belmont and sent off to Sydney for payment and the roster is a drop-down. It's very similar on most sites where the roster is posted by the Operations Department and put on MMS and sent to the - to the site and placed on the noticeboards.

**** STEPHEN CRAIG CONNELL XXN MR RIDLEY

PN1149

So, although you've given a specific example in terms of Woodside at Karratha, in terms of trying to generalise as accurately as possibly as to roster notification or hours notification for the other 290 or so, is that pretty much what happens, that each of those 300, if you like, of those part-time people have some form of roster communicated to them on a regular basis?---No.

PN1150

So what happens?---As I said before, they make themselves available for specific days of the week.

PN1151

What do you mean by making yourself available?---I'm available only for afternoon shift Friday and Saturday because I'm a schoolteacher and we have schoolteachers on the books. We have accountants on the books and they want a bit of extra money because the wife's not working at the moment, whatever, and they make themselves available for our peak periods which are weekends. And after hours. Other people make themselves available 24 hours a day, 7 days a week. We have people that, as I explained before, that are trained on specific sites, so let's say someone at Woodside goes down sick - and I'm talking Woodside in the city here, the client has very hard conditions to get on the site and there is only a few people that are trained and the client has agreed to take them on the site as relief people, and they are contacted first to relieve on that site.

PN1152

So certainly in terms of some of those groupings, you've indicated that there'll be some people who clearly can only make themselves or will only want to make themselves available on X number of days per week and they may even be quite constrained in terms of the hours that day. That's one group, yeah?---Agreed.

PN1153

There are some who you've said are trained on specific sites and presumably, unless they've expressed a desire to increase their training or expand their horizons, how would you describe them? Would they be a sort of - we're generalising now, a group of people who would only ever expect to work on that site maybe as a relief or - - -?---No, generally the sites, I'll say, split into two zones. The Kwinana area, because it's specifically different training

**** STEPHEN CRAIG CONNELL XXN MR RIDLEY

requirements and the city zone. The city zone, they might be trained at BankWest across the road, QV1, AMP, Woodside and at various sites. Now, I'll give you an example again. As if Woodside - we organise our leave roster and everyone takes leave in one block and there may be 40 weeks of relief. We only need to employ one person. He gets consistent work for 40 weeks.

PN1154

So I think what you're telling the Commission is that there is a capacity in Chubb to try to, as best as possible, meet the needs of various groupings, if you like, within the 300 about what their needs or requirements might be. So is it fair to say there is some system in place?---Agreed.

PN1155

To ensure that there is - would it be asking too much to say that there's some fairness and consistency in the way that people are actually rostered?---Yes.

PN1156

And that's something that Chubb presumably would seek to do with its employees, ensure some sort of consistency and certainty?---With the existing clause in the award, that's what we do.

PN1157

Tell me about the existing clause in the award. Well, more particular, let's perhaps go to the proposed clause, which might be perhaps more expeditious, is clause 9 but perhaps if we can just confine our attention to 9(2) on the basis that 9(1) and 9(3) are pretty much a reproduction of the current award. I think you indicated to Mr Uphill that in reference to 9.2.2, that if Chubb was obliged to in fact adhere to that provision, I think you used the term, "Chubb would have to close its doors"?---That's what I said.

PN1158

Now, given that we've established that you've got a majority of full-time employees and not part-time employees, and given that you've indicated that there are various groups within the 300 permanent part-time employees that you can cater for with some consistency, is it really something that you want us to believe that compliance with 9.2.2 would simply render Chubb bankrupt?---What 9.2.2 states is that we are obliged in writing that if you start with us and we put you on a part-timer and we say we will - well, let's say we'll give you three shifts a week every week. I'll give you a seasonal run-down. In December and January and February we get probably one-third of the work for

**** STEPHEN CRAIG CONNELL XXN MR RIDLEY

the year, around the Royal Show period and around the school holidays we probably get the other third of the year. The rest of it's spread out throughout the year. So through those eight lean months we have to consistently pay them 24 hours a week every week.

PN1159

Whatever it is - - -?---Whatever it is in writing, we've agreed on the day for attending no work site. How does Chubb employ 200 people paying them 24 hours by the award rates for nothing.

PN1160

At the moment Chubb employ 557, I think, that the count was, full-time employees and arguably they're obliged to provide full-time hours to those full-time employees and you've indicated that, in fact, very little change to that over the last few years. What I'm asking you, Mr Connell, is what do you see is so difficult given you've indicated that Chubb believe that there should be some consistency and certainly in the way that people are rostered, how do I reconcile that comment that you've made with your comment that 9.2.2 is just untenable?---Well, let's - I won't give you specific but I'll just talk margins. You've put a point across that we make millions of dollars obviously on our 557 I think you said in permanent employees. Well, that's not the fact. It is an industry that has 30 or 40 different companies just in Western Australia and everyone's fighting for business, everyone's fighting for every tender or every guard post that comes up. You make your money where you can, there's no doubt about that. But at the end of the day you're asking us to carry an additional burden that we then have to pass on and raise our prices in the market place because we have an excess amount of people that we need to fill the swings and roundabouts that happen on a weekly basis. And it's simply not a feasible position for Chubb to be put in.

PN1161

Would you be surprised if you were told that security awards in ACT, New South Wales, Northern Territory and Victoria have just this provision just as you read it now? You'd be surprised to learn that? I'm not asking you whether you know, I'm just asking if you'd be surprised?---I would be surprised.

PN1162

Do you see WA as being distinctly different from the other states in terms of the security industry?---Having not worked in other states I couldn't comment.

**** STEPHEN CRAIG CONNELL XXN MR RIDLEY

PN1163

In terms of 9.2.3 I think you indicated to the Commission that the administrative burden would be untenable - well, sorry, my words "administrative burden" but I shortened it to: administrative burden would be untenable. Is it not true that Chubb would be seeking to notify in writing anything to do with someone's appointment, changing circumstances? Isn't that what is the normal practice as is currently required by the award and why is this so administratively difficult to do?---You've answered your own question and I'll just re-phrase what you said. If you actually read 9.2.3 it doesn't spell out what you just stated. It states out that any variation to the work pattern needs to be in writing. So if I say to you you'll get three shifts a week and they will be the 3 days that you make yourself available which is Friday, Saturday, Sunday which historically each week is our busiest times and I have no shifts on those days, however I have a shift on Wednesday and you happen to be off those 2 days, I have to send you that in writing before I can make that change. I'm not talking about a situation where - and it does, it doesn't - - -

PN1164

Mr Connell, with respect, I think 9.2.2 and 9.2.3 are to be read together and we're talking about any agreed variation. This is not about roster notification. So I'm wondering what is it about simply a notification of an agreed variation is so difficult to perform by a large company like Chubb?---I've just answered that question. You've just asked me the same question twice. What is an agreed variation. I'll ask the question, I don't know if I'm allowed to, but what is an agreed variation? Every time - and I've had dealings with the union where we've had a dispute notice put on us because we've told an employee that we've had five book-offs on a given day and we've got to change their shift from a day train to a night train. And we've been in dispute because I didn't give them the required 72 hours notice under the agreement. Now, here's an agreement that at best is gray and it's not black and white, what is the agreed variation in the regular work pattern? They work every Thursday, Friday and Saturday for us however we don't have a shift on a Thursday. We have one on Sunday, they've agreed to it but as per this clause I have to send it to them in writing.

PN1165

Because the original notice was in writing. The original agreement was in writing?---If 9.2.2 came into effect, yes.

**** STEPHEN CRAIG CONNELL XXN MR RIDLEY

PN1166

That's precisely the point, so - - -?---So every person who would not be available on the given day and has now got an alternate shift, I'd have to send alternate shift variation to their roster, agreed letter. I'd have to send them a letter.

PN1167

I don't want to get argumentative with you but suffice to say that we are not talking about, are we, each and every change? We are talking about a regular pattern of work?---That's what it should state in that clause then.

PN1168

THE SENIOR DEPUTY PRESIDENT: Mr Ridley, I suspect you and the witness might need to disagree on this issue. I'm not sure you'll bridge the gap between you.

PN1169

MR RIDLEY: In reference to 7.2E and F you made the point that you believe this somehow created a situation where Chubb could not provide a guaranteed level of service as the client would expect. Where E and F make reference to the term "allowed and necessary time", do you not think that not unlike the situation that you have under the current Westrail EBA that there is a significant degree of control that can be exercised by the employer in terms of having some discretion as to about what is reasonable, what's necessary time, that there is a - this is a management issue?---I'll give you a specific example. The Thursday before I took my holidays I spoke to the union delegate from the site for the security officers - seeing you've asked me this question.

PN1170

Is this Westrail or is it - - -?---The West Australian Government Railways, and advised him that the taking of the handcuffs off him is not an OHS issue, this is the way that you'll then deal with it. That he needs to go through the dispute grievance settlement procedures under the award to settle the issue and advised him of that on two occasions on the night within an hour. However, subsequent to that all the security officers on all the stations left their stations without permission and went to the Perth Railway Station and tried to meet on the WAGRs premises and we asked them to then go across the road and meet somewhere else. All the time on the phone with the union organiser, Jenny Testar, who I spoke to on two occasions prior to actually going in to resolve the

**** STEPHEN CRAIG CONNELL XXN MR RIDLEY

issue and here you have a situation where you've stated to me that here she's allowed the necessary time but you've not continued, during work hours. The "during work hours" is the part that concerns me. Now I've had an opportunity for a person to use discretion, has taken the opportunity to ring his manager, gone above the supervisor which is fine. I've given him my advice and he's failed to follow my advice. That is why I'm sceptical of that clause not only for my contract and not only for Chubb but for the security industry in general.

PN1171

Leaving aside the particular example at Westrail which you know darn well has been pretty much resolved and does have a sorry history with the complication of there being Westrail ruling the roost on that one. It seems to me that we have to agree to disagree on that, Mr Connell. In reference to 9.6. you would be aware of course that that is pretty much identical to the current award clause of 8B(i)? In think you said that compliance to that clause would be untenable?---Is that a question, sorry?

PN1172

Well, do you think it's untenable given the current award clause?---Can I have a copy of the current award clause, please?

PN1173

Would it be not fair to say that in essence it's almost a direct take from the current award clause?---Yes, it is.

PN1174

Thank you. If I might just return very briefly to the matter of regular part-time?

PN1175

MR UPHILL: Your Honour, you'll probably imagine my objection to information regarding a certified agreement being taken into account in these proceedings. It's not something that ought to be put to the witness or ought to be part of the deliberation of these proceedings.

PN1176

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Uphill. Mr Ridley, I take you are seeking to introduce this document?

**** STEPHEN CRAIG CONNELL XXN MR RIDLEY

PN1177

MR RIDLEY: Yes, I am, your Honour.

PN1178

THE SENIOR DEPUTY PRESIDENT: Perhaps you could tell me what relevance it has? I am also, I must say, minded that the witness has a family commitment and I intend to go as near as I possibly can to honouring that.

PN1179

MR RIDLEY: Sure. In terms of relevance, your Honour, what I'm seeking to point out is that Chubb certainly in so far is it relates to 160 members to which Mr Connell has made reference to and with specific reference to clause 7 clearly does have an ability and does not see great chaos emanating from there being some form of regulation of part-time employees.

PN1180

THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Ridley, you're seeking to introduce and presumably ask the witness questions about the Chubb Westrail Enterprise Bargaining Agreement. Can you tell me what relevance that has to the issues in dispute?

PN1181

MR RIDLEY: Okay. As an example of how Chubb have agreed, in fact, to there being some form of regulation for part-time work.

PN1182

THE SENIOR DEPUTY PRESIDENT: And what are you looking for from the witness in that regard?

PN1183

MR RIDLEY: Just simply that that exists in so far as it potentially relates to 160 employees and I'm simply introducing this document through a witness who would have, who did in fact, negotiate the document and would therefore be, and given that he's the Westrail manager, if you like, for the contract would be more than au fait with the provisions of that agreement.

PN1184

THE SENIOR DEPUTY PRESIDENT: So you're simply seeking to establish that this agreement exists?

**** STEPHEN CRAIG CONNELL XXN MR RIDLEY

PN1185

MR RIDLEY: That's right. I don't need to - - -

PN1186

THE SENIOR DEPUTY PRESIDENT: Mr Uphill, is there any dispute this agreement exists?

PN1187

MR UPHILL: Clearly there is no point - - -

PN1188

THE SENIOR DEPUTY PRESIDENT: It's not a fabrication?

PN1189

MR UPHILL: There is little point identifying the document as something that exists without explaining what purpose needs to be made of the document. And clearly it is a certified agreement. It is not something that in my view, anything in the content of it ought to be put to the witness. We have no - - -

PN1190

THE SENIOR DEPUTY PRESIDENT: I understand that Mr Ridley is not proposing to put anything to the witness in regard to it. He is simply seeking to establish that it exists and governs the employment of their staff.

PN1191

MR UPHILL: I mean, it exists as a matter of fact in the Commission's records. We don't need to, in my view, go to the extent of proving that it exists, it's there as a matter of record. But it ought not be something that is on the record in these proceedings in my view.

PN1192

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Ridley, if the sole intention of seeking to introduce this document at this stage of the proceedings is to establish its existence and coverage, then it doesn't appear to me that Mr Uphill is disputing that existence nor indeed the coverage of it.

**** STEPHEN CRAIG CONNELL XXN MR RIDLEY

PN1193

MR RIDLEY: The only thing that I was going to derive from that was that clearly there's some evidence of the preparedness of Chubb Protective Services to have some form of regulation of part-time workers in reference probably one of its largest contracts and I see that as having certainly some reference in terms of Chubb's treatment and attitude towards regular part-time employees. That was simply the point that I was seeking to make.

PN1194

THE SENIOR DEPUTY PRESIDENT: Is it possible that would be covered in the course of your submissions, Mr Ridley?

PN1195

MR RIDLEY: Oh, certainly that's something I can more than amply cover through them.

PN1196

THE SENIOR DEPUTY PRESIDENT: Very well. Well, look, I won't receive the document at this stage but I will acknowledge that we may well have a debate on it at a later stage of these proceedings.

PN1197

MR RIDLEY: Certainly.

PN1198

THE SENIOR DEPUTY PRESIDENT: Mr Ridley, do you have many more questions of the witness? I'm not trying to cut you off but I'm simply trying to establish whether we need to look at an alternative strategy?

PN1199

MR RIDLEY: I think, Commissioner, that I'm probably almost exhausted.

PN1200

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Clarke, do you have many questions of this witness?

PN1201

MR CLARKE: Just a couple.

**** STEPHEN CRAIG CONNELL XXN MR RIDLEY

PN1202

THE SENIOR DEPUTY PRESIDENT: Give me an estimate of the time involved.

PN1203

MR CLARKE: About 3 minutes.

PN1204

THE SENIOR DEPUTY PRESIDENT: Mr Uphill, can you give me an estimate based on the questions that have been asked by Mr Ridley to date, of the extent of the time involved in your re-examination.

PN1205

MR UPHILL: There's no re-examination.

PN1206

THE SENIOR DEPUTY PRESIDENT: Right. In which case, Mr Connell, can we ask for your forbearance for another few minutes, is that possible?---Yes, that's fine. Yes, no problems.

PN1207

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Clarke, I'm relying on you to honour your - - -

PN1208

MR CLARKE: Yes. Thank you.

<CROSS-EXAMINATION BY MR CLARKE [3.33pm]

PN1209

MR CLARKE: How many part-timers do you have in relation to Westrail?---Two.

PN1210

This was for two employees, is that right?---No, it's for 160 full-time employees and two part-timers. They were permanent employees that have gone to uni so they'd like to go back to part-time.

**** STEPHEN CRAIG CONNELL XXN MR CLARKE

PN1211

Okay. The only other thing I want to raise with you is the - a contract of employment under the existing award?---Mm.

PN1212

There is an opportunity for a lesser period of notice in writing to occur between an employer and an employee. Is that your recollection of - - -?---Agreed.

PN1213

And that occurs?---Yes, it does.

PN1214

No further questions.

PN1215

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, Mr Uphill you indicated you have no re-examination?

PN1216

MR UPHILL: That's correct.

PN1217

THE SENIOR DEPUTY PRESIDENT: Mr Connell, very briefly and before I release you as a witness, can I refer you to the definition of a part-time officer in the existing award and I will read it out to you, it's a very, very brief definition:

PN1218

A part-time officer shall mean an officer who is regularly employed for and who works a lesser number of hours than 38.

PN1219

And I particularly refer to the words "regularly employed for". Can you tell me how it is that Chubb define "regularly employed" in the context of your concept of a part-time officer as a relief worker?---How - how we - define as the company, all shifts are given out as per the training requirements and everyone has an opportunity to - and when I say, "everyone," obviously if the site requirements are, we might have 5 available staff for every site. And that means if there's specific training, then training's paid. In regards to Mr -

**** STEPHEN CRAIG CONNELL XXN MR CLARKE

Whitehall, or what ever his name was yesterday, I mean, it's cost us $3,200 to train him in 2 years. If you magnify that by 300, it's quite a significant investment and it is a necessity and I - I don't dispute that. The shifts are given out fair - fair and equitable to all employees. However, preference is made to those employees who have come off the permanent full-time lurk, as we call them, or fortnightly as per the award - fortnightly employees. However, the other part-timers, some people only want to volunteer and I - I know we got rid of a lot of the casuals as - per se. They want to only volunteer for one shift a fortnight. They already worked - and we had one person who does that now. He's an airport supervisor for Qantas. He only wants to work every second Saturday. I don't know why but he - he enjoys the job.

PN1220

THE SENIOR DEPUTY PRESIDENT: But he still works every second Saturday - - -?---No, it doesn't - - -

PN1221

- - - as a part-time employee?---Yes. Under the - under the award the way I read it and it's just the way I interpret it and I don't deal with that side of it, he regularly works the Saturday and the odd occasion he may not but - he does regularly work every - every second Saturday.

PN1222

Are you in a position to advise me whether you are aware of the cost differentials that apply between casual employment and part-time employment?---Yeah. The award says that 20 percent loading is given to a casual employee for all hours worked.

PN1223

Well at what point, that is, what number of hours should there be regularly worked, would result in a part-time employee becoming a more viable economic proposition from Chubb's perspective than a casual employee?---It's a hard line to define. We had some thousand guards 3 years ago and we got rid of - when I say, "got rid of," we didn't require 2 or 300 of those and they were casuals on the books. They got paid their loadings and under the auspice of the Operations Department they try and give everyone fair shifts. Be it one shift a fortnight because that's what they want or - 3 - shifts a fortnight. But with the flow up and down it's hard to - distinguish what is - what is fair and reasonable. I mean, you know, I can only go back to Mr Whitworth. He's had 5 opportunities in the past which he's blown and it's - nothing simple about that.

**** STEPHEN CRAIG CONNELL XXN MR CLARKE

He's had 5 opportunities to get full-time employment again and he's not been able to come up to scratch on a - specific site. But at the end of the day it's hard to define what is reasonable hours. These part-time employees - most of those people have been on the books for a long time. And they're there because they want to be there, the majority of them.

PN1224

Thank you. Two last, very brief points?---Yep.

PN1225

Firstly, you've expressed concern about the viability of Chubb's operations were the award to be changed in relation to clause 9. You also express concern over the potential cost implications of the redundancy provisions in clause 11?---Yep.

PN1226

Would you have those same concerns if everybody in the security industry was required to comply with consistent changes or were your comments predicated on the possibility that Chubb might be required to comply with those whilst other people would not be?---It's a double edged sword here. I think we have a - - -

PN1227

Life's about double edged swords - - -?---Yeah, I know.

PN1228

Unfortunately?---We have a clear history of - of going head-to-head with - with companies that do not meet - do not respond to the Federal Award and therefore, you know, and maybe that will be cleared up in the not too distant future, however, if we're made to pay an another penalty, it means more loss of permanent employees jobs. Unfortunately that also includes me and I'm in that - in that boat. If the redundancy clause comes in, again, it will be only on those ones who are a respondent to this award and unfortunately, I - as I said, there's 40-odd companies in - just in Western Australia that are actively licensed to supply guards in Western Australia and there's not 40 companies in the back of those. Three of those don't even exist anymore. They only exist in name because Chubb own them.

**** STEPHEN CRAIG CONNELL XXN MR CLARKE

PN1229

Now, Mr Connell, one last issue and it's a comment rather than a question. Over the last couple of days we've had a number of reasonably heated debates and it's patently obvious that industrial relations in the security industry can sometimes become a matter of dispute. Yesterday, Mr Whitworth gave evidence. Today for, I do not doubt, quite legitimate reasons, you provided some information relating to Mr Whitworth. I would simply ask that if you haven't already done so, that you or appropriate person within the senior management role of Chubbs, talk with Mr Uphill to make sure that Chubbs are fully aware of the protections that are provided to Mr Whitworth and are embodied in section 298 of our legislation. Now, I simply mention that not to accuse anyone of anything, but I just would be nervous that a debate in this court room shouldn't flow over so as to impact in any way in terms of Mr Whitworth's future?---Oh, yeah, no doubt about that.

PN1230

Thank you. Now, Mr Uphill, do my questions occasion you the need to ask this witness any further questions?

PN1231

MR UPHILL: No, nothing arising out of the questions you put to Mr Connell.

PN1232

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Connell, we have held you up beyond our stated time?---No.

PN1233

Thank you very much for your evidence, you're released?---Thank you.

<THE WITNESS WITHDREW [3.43pm]

PN1234

THE SENIOR DEPUTY PRESIDENT: Now, Mr Clarke, you have a second witness?

PN1235

MR CLARKE: Yes, I do.

PN1236

THE SENIOR DEPUTY PRESIDENT: And is that witness now available? Is that witness available now?

PN1237

MR CLARKE: I hope he is. Mr Graham Drury, if I could have him called to the stand, please?

PN1238

Would you please state your full name and address for the Commission?

PN1239

MR DRURY: Graham Drury, 36A Petra Street in Palmyra.

<GRAHAM DRURY, SWORN [3.44pm]

<EXAMINATION-IN-CHIEF BY MR CLARKE

PN1240

MR UPHILL: Can you please state your name, address and occupation for the record, please?---Graham Drury, address is 36A Petra Street in Palmyra and I'm part a management team for MSA.

PN1241

I wonder if the witness can be shown ALHMWU exhibit 2, please? I notice the witness has got a folder there with him, would you like that retained at the back of the court?

PN1242

THE SENIOR DEPUTY PRESIDENT: I'd like it passed to my associate please. Thank you.

PN1243

MR UPHILL: Before we start, Mr Drury, how long have you been involved in the security industry in Western Australia?---Well, 19 years, I joined in January 1982.

PN1244

Where did you commence?---I commenced as a casual guard with MSS Security. I stayed as a casual guard for about 6 months, progressed through to part-time control officer. Got into the full-time patrols, did several years of various static guarding jobs in between that. I worked in their central station for about a year-and-a-half, went to Patrol Supervisor, and in 1993 got offered a position as the Operations Manager for guards and patrols. I stayed with MSS until July '96 when they were purchased by Chubb and went over to Chubb in October of that year, 1996, as the State Guards Manager, and I stayed with Chubb until approximately October 1998 when I left and went to work for New Breed for about 10 months, and I've been with MSA since, I think, early November '99.

PN1245

Okay. The document I would like you to have a look at is an exhibit and I would take you straight to page 5, if you have a look at page 5. And I take you to point 6.2.4B?---Yes.

PN1246

Do you agree with the inclusion of that in the award simplification process?---No, I don't.

**** GRAHAM DRURY XN MR CLARKE

PN1247

And why not?---I believe as a particular company we've got a - a reasonable expectation that we should be able to negotiate with our own employees given that we're - we're bound by certain conditions, without any outside involvement. I certainly think I've got an opportunity to seek information from a third party but my previous involvement and experiences led me to believe that - if it's - if this sort of information there is - is there at the start, then the protracted - the negotiations become rather protracted.

PN1248

Just digressing slightly, how many guards or patrol officers are there with MSA Guards and Patrols, or Ultimate Pty Ltd?---46.

PN1249

How many of those guards are full-time and part-time?---There'd be 39 full-time and 17 part-time - 29 full-time and 17 part-time, sorry.

PN1250

Okay. I'll move onto page 6 of the document in front of you, 7.1.2E and F?---Yes.

PN1251

Do you believe that those two clauses are applicable to the award simplification process?---No, I certainly don't.

PN1252

Why not?---We - we - I guess we're in a contract security industry and we have a situation where we provide staff to a third party, which is our client. In that particular instance, quite often staff are deployed at various sites on a - on a one-off basis and some of the sites certainly require specific training. The inclusion of those two particular clauses would provide the opportunity for a rostering nightmare with regard to releasing people and having them replaced and certainly given the - the spread of the sites that we work at through the metropolitan area, the time constraints and the costs to the company would be substantial.

PN1253

I refer you back to page 5, 7.1.1 on step 1?---Yes.

**** GRAHAM DRURY XN MR CLARKE

PN1254

Does the union get involved in step 1?---I have know the union to get involved in step 1. Not very often.

PN1255

This is with MSA Guards and Patrols only, is that right?---In that regard, no, they don't.

PN1256

The evidence I'm asking you for pertaining to this is only pertaining to MSA Guards and Patrols?---My current employment, all right.

PN1257

I refer you to the next section, 7.2A, B and C?---Yes.

PN1258

Do you believe that those 7.2A, B and C should be included in the award simplification process?---No, I don't. I don't - I don't necessarily think that's a - an issue that goes to award simplification. Certainly my belief is that that particular area's best covered under a particular company policy and is reached by negotiation with an individual.

PN1259

Does MSA grant leave of absence to attend particular courses?---Occasionally.

PN1260

That the union run?---Occasionally.

PN1261

I wonder if the witness can be shown section 8, Contract of Employment from the current Security Officers' Award, please?

PN1262

And I also refer you to page 7 of the ALHMWU document, exhibit 2. Have you had the chance to read section 9 of exhibit 2, Types of Employment?---Yes, I have.

PN1263

Do you believe that that should be included in the award simplification?---Absolutely not.

**** GRAHAM DRURY XN MR CLARKE

PN1264

And why not?---The - this - as - as I indicated earlier, the - the situation we found - find ourselves in, in the industry in general, that specifically with MSA is that officers are employed either on a full-time or a part-time basis and the very nature of the fact that they're part-time dictates that they're available - and it is relevant to each individual person but in general the part-time employees are available as and when required and the number of instances where a - an employee may be rostered for a particular shift of the client may be for 3 or 4 or 6 hours and then to have the client ring up and say, you know, we'd like the employee to stay on for a little bit longer, we have, obviously an agreed rate that we charge the client certainly doesn't include overtime that would come into the situation here. There's - the particular situation that's detailed here would indicate that it - it would be a very restrictive rostering practice and certainly would need additional staff to man a roster based on this provision which is going to restrict a part-time employee, in the last case, in gaining extra shifts to make up their - their weekly hours.

PN1265

I refer you now to, 9.2.2, under exhibit 2?---Yes.

PN1266

Do you agree with that section ?---That was, if you like, the specific section I was referring to in my previous comment.

PN1267

That wouldn't assist you?---Absolutely not.

PN1268

Or MSA or your part-time employees?---Absolutely not.

PN1269

So you currently work under section 8, Contract of Employment?---Yes.

PN1270

How do you find that section, Contract of Employment, section 8 of the current award?---It works very well.

PN1271

Okay. The next section I would like to move to is page 9, section 11 of exhibit 2, Redundancy. Do you believe that this clause should be included in the award simplification process?---No, I don't.

**** GRAHAM DRURY XN MR CLARKE

PN1272

And why not, please?---The - I guess the industry, as I've previously stated, is a contract security industry and we provide staff to clients on an as required basis and the situation as it's - as it stands at the moment is that - when a contract changes hands, quite often the - the employees stay with the contract. If they don't then we make every effort to keep the employees with ourselves on the basis that we've generally invested quite a bit of time, money and effort in training and to have the situation where you lose experienced officers is not one that we - we look forward to. So, in general and quite often it's the case, that they - they may well revert from a full-time position or permanent part-time position and depending on the volume of work that we come in - we have come in, they can be part-time for either a very long period of time or a very short period of time. But the general intent is that we keep our staff anyway and make every effort to place them in situations as close as we can to the - the previous sort of shift situations that they were in and the hours that they were doing. We certainly do have employees who have a preference for day shift and don't want to work night shift and on quite a few occasions they've been offered shift work in the interim until a day shift work comes up. Sometimes they take it, sometimes they don't.

PN1273

Mr Drury, I now refer you to page 18 of the exhibit, 14.1.1, are you familiar with that requirement for a first aid certificate?---Yes. I am.

PN1274

That is currently in the existing award?---Yes.

PN1275

Do you believe that this is applicable for the award simplification?---No. I don't. The situation we find ourselves in now I think a lot of things have changed since the - this particular - the current award was put in place. The indications and the training requirements within the industry have dictated that everyone needs to have a certificate to - or have completed a certificate 2 course in security and part of that particular course situation will dictate that they must have a recognised first aid certificate. It's not currently in place at the moment but I believe it will be within a few months and for an officer to gain work in the industry they must have and keep valid a recognised first aid certificate prior to getting employment and to continue their employment through licence renewal they will have to keep that certificate valid.

**** GRAHAM DRURY XN MR CLARKE

PN1276

Once this comes into effect?---Once this comes into effect.

PN1277

14.1.4: Reset Alarm Panels?---Yes.

PN1278

Is that applicable for the award simplification process?---No. It's not and in actual fact I was involved with MSA - with MSS, sorry, I think it was around '93/94 when they were looking to restructure the award and we had the actual levels, 1 through to 4, defined and during the discussions with - I think it was at CCI and we had various discussions at the union office at the time, part of the definition of a level 1 security officer was that they could attend and reset basic security alarms. Through the process of that I guess reclassification it was accepted at those particular meetings that alarm reset allowance would come out but once the award had actually been handed down we found that it was still in there. I think it came to light with us - I think it was in correspondence with Wormald at the time that they had stopped paying it on the day that it was decided after the negotiations with the union and we hadn't picked up on it, that it was still in there and we were paying it at that time and I think the - when the minimum rate adjustments come through, and I think there was four of those, we had meetings with the union and our staff at the time and rather do as Wormald did and take it all off at the one hit we phased it out over the four rate adjustments, I think it was $1-odd per rate adjustment that came off.

PN1279

Who was the union organiser that you were dealing with at the time, can you - - -?---Wilf Hunt.

PN1280

Wilf Hunt. Is he still currently there?---No.

PN1281

Anyone else at the union you were dealing with in regards to this matter that you can recall?---The only person that I'm aware of that's still within the union movement at the moment is Helen Crewe, I - - -

PN1282

That you were dealing with, with this matter?---She attended one of the meetings at the union office but wasn't involved in any of the others.

**** GRAHAM DRURY XN MR CLARKE

PN1283

Okay. I take you now to page 22, section 15?---Yes.

PN1284

15.1:

PN1285

Wages may be paid by cheque, cash or direct deposit into the employee's nominated account, as agreed between employer and employee.

PN1286

Do you agree with that clause being put in?---No. I think as it stands at the moment the wording is slightly different to that. The situation we find ourselves in now is that we're quite willing to direct payment into an employee's bank account - - -

PN1287

I wonder if the witness can be shown section 30 of the existing award, if I may. I don't think I've handed this up so far somehow, got all these copies.

PN1288

THE SENIOR DEPUTY PRESIDENT: I won't call this anything, Mr Clarke, the understanding from Mr Ridley, that it does reflect the award as it presently stands. Is that the case, Mr Ridley?

PN1289

MR RIDLEY: Look, I believe it does but I'm not that much of a speed reader.

PN1290

MR CLARKE: Just point 30 at the top is A and B: Payment of Wages?---Yes.

PN1291

MR RIDLEY: Yes. It looks right.

PN1292

MR CLARKE: It states:

**** GRAHAM DRURY XN MR CLARKE

PN1293

They wages may be paid by cheque, cash or direct deposit into the employee's nominated bank account at the discretion of the employer.

PN1294

?---That's correct.

PN1295

So do you believe the current proposal should come in under 15.1?---No. I don't. I believe it should stay exactly as it is, the situation now is we - I guess as most companies are, we're directly on line with the bank, the deposits are made directly into the employee's accounts and overall it's a - it's a much easier system to manage on our behalf. We certainly don't have the facilities to keep cash and/or cheques of that sort of volume on the - on the premises.

PN1296

This is in regards to MSA guards patrols. Correct?---Yes.

PN1297

Have you had any complaints regarding method and mode of payment as with the current system?---Absolutely not.

PN1298

Okay. I'll take you now to 15.2, it says:

PN1299

No deduction, unless authorised elsewhere in the award, must be made of the officer's wages unless the officer has authorised such deduction in writing.

PN1300

Do you agree with that?---The - I guess it would be fair to say I would like to see a change in that. We have - and I guess it relates to 15.1 with the electronic transfer of funds to - to an employee's account. There have been situations where the button has been hit twice on the - on the computer and somebody has been paid twice.

**** GRAHAM DRURY XN MR CLARKE

PN1301

Yes?---Luckily - luckily to date it's been an individual situation with an employee but if we were ever found to be in a situation where we double transmitted an entire payroll it would cause us quite a degree of financial difficulty and I think in certain circumstances, as the bank does when they overpay you or put extra money into your account, they certainly don't ask you and take it back. I think in very specific cases that should be available to a particular company as well.

PN1302

Thank you. Mr Drury, I now refer to section 16 on page 22 and I refer you to the second line:

PN1303

38 hours per week, the hours actually worked being 80 in each rostered period or 14 consecutive days to be worked 8 hours per day on any 10 days of the fortnight.

PN1304

Do you have any problems with that?---I certainly do. We have - we have long been in a situation where security officers are working 12-hour shifts and in very specific cases a roster cycle can run over 16 to 21 weeks. As it has been in the award up until now we had an arrangement, I guess, at one stage with the union when we were doing the 12-hour shifts that we had to notify them each time a 12-hour shift went in and if the roster cycle varied between this award situation and after - and this was back to Wilf Hunt's days so it was some time ago, after I guess the union were comfortable with the fact that the employers had a grasp on the 12-hour shift situation that was no longer required. We weren't required to submit the rosters at the time and we have had a couple of occasions where over the years different union organisers, as they have changed, have made an attempt to take the 12-hour shift situation away from the employees.

PN1305

Yes. We will get to that but 14 consecutive days, do you have a particular problem with that?---Well, it's too restrictive. The - we've got an average number of hours that somebody works in a week, but as I indicated earlier depending on the sort of roster that you're working it could spread over a lot longer period than 14 days and this particular situation is very restrictive.

**** GRAHAM DRURY XN MR CLARKE

PN1306

Okay. I refer you now to 16.3.1 on page 23:

PN1307

The ordinary working hours in any day must be worked within a spread of 10 hours.

PN1308

Do you have a problem with that, Mr Drury?---For the same reason that I - I talked about the 12-hour shift, I guess this was - may have been relevant when there was only ever the availability of 8-hour shifts but given the situation we find ourselves in now with the - with the 12-hour shifts, again this is just a restrictive practice and I guess the whole process of the award simplification I would have thought was to make it simpler and easier to operate in.

PN1309

I now take you to 16.3.2:

PN1310

The ordinary hours prescribed in this clause may be altered by agreement between the employer and the majority of employees and where an agreement is reached in accordance with this provision is to allow ordinary hours to be worked in excess of those prescribed by this clause up to but not exceeding 12 hours.

PN1311

Do you have a problem with any aspect of that, Mr Drury?---The agreement, I believe, needs to be between the employer and the employee or a group of employees, certainly not the majority of employees. A particular working hour situation I guess is very site specific and should be flexible enough to allow a site-by-site operation of that.

PN1312

So you don't take it that it's a site-by-site interpretation or application of what's stated there?---No.

PN1313

Thank you. I now move you down to 16.4.1:

**** GRAHAM DRURY XN MR CLARKE

PN1314

A crib time of not less than 20 minutes must be allowed no earlier than 4 hours and no later than 6 hours after the commencement of the shift where it is reasonably practicable to do so. After such time of commencement of each shift where an officer is required to work in excess of 5 hours without a break he or she must be paid at overtime rates until a break is taken.

PN1315

Do you have a problem with any aspect of that 16.4.1?---I certainly do, the clause itself is not consistent. If you have got a situation where an employee can have a break some time between 4 and 6 hours then why would you be put in a restrictive position where after 5 hours they would be paid overtime.

PN1316

What do you believe it should be?---After 6 hours.

PN1317

On the second last line "In excess of"?---

PN1318

Where an officer is required to work in excess of -

PN1319

where it says "5 hours" I believe that is - that should be 6.

PN1320

Thank you. I now refer you to 17.4 on page 24?---Yes.

PN1321

The specified period must be: (a) for officers employed on shift work, 8 hours including the normal change over time; and (b) officers employed on any day work, 10 hours.

PN1322

Do you have a problem with either of those?---In the - in the context of simplification, I can't see the need for two specific - or two varying periods when you might determine that somebody that's on shift work is under a little bit more pressure than an officer that's on day work. The - my thoughts on that matter is that an 8-hour break is adequate between either. So the specified - and I guess it's referring back to 17.3, "The specified period must be 8 hours", and just leave it at that.

**** GRAHAM DRURY XN MR CLARKE

PN1323

For both (a) and (b)?---For both (a) and (b).

PN1324

Thank you. I now move you to point 18, 18.1: Call Back. Do you have any problem with 18.1?---I guess as we - we talked about the payment of wages, employees don't come into the office to pick up pay now. Given the very nature of the industry that we work in quite often week-to-week, month-to-month an actual employee may never attend the office under normal circumstances. The general run of things may be for an officer to come in and pick up extra uniform that he's ordered, to come in for disciplinary reasons, to come in to change administrative information. I can't see any requirement for us to actually pay an officer for those sort of attendances to the office.

PN1325

What about for counselling or warnings, what happens there, do you bring them into the head office or go on site or what do you do?---It depends on the - the nature of the incident that's taken place. Quite often the first instance will be that a supervisor or senior member of staff may well visit the officer on site. If there is a situation that has arisen that we believe it serious enough the officer comes back to the office to speak to management about it.

PN1326

18.2, do you have a problem with that at all?---I guess in general we've got to be - be mindful of the fact that, you know, we've got officers rostered at particular sites and that we certainly wouldn't want to contribute to a situation where if somebody worked a night shift and finished at 6 in the morning that we called them in at 9 or 10 o'clock, disturb their sleep and then expected them to go back to work that night, but again I think that is something that, as a responsible employer, you manage those particular situations, bearing in mind the fact that we're working - or the company survives on the fact that our officers are out in the field and the client is paying for a service that they expect to get. I don't think that we would last very long if we had a situation where the staff were being continually disadvantaged if that wasn't managed properly. I don't personally think it's relevant but - - -

PN1327

Mr Drury, I'll move you on to page 26 now: Public Holidays, 21.2, down the bottom of the page?---Yes.

**** GRAHAM DRURY XN MR CLARKE

PN1328

Do you have a problem with that clause, 21.2?---I do and I think with the changes to the Government public holidays that are gazetted now there is one other public holidays and I can't - I think it might have been Australia Day that has been determined that that day will be the public holiday regardless on which particular day it falls. The situation we've got, as it stands in the draft document that I'm looking at, goes against the intent of the changes to the public holidays now. We have a situation - and if it is Australia Day - that it falls on a Saturday then that's the public holiday not the following Monday. Now, if - that's the only one I believe that's changed at the moment but there may be others in the future that come up and we need to be mindful of the State legislative changes that have happened.

PN1329

Certainly. Also on page 27, I take you down to point 22: Personal Carer's Leave. Have you had a chance to read that section? It goes over to page 28 as well?---Yes. I have.

PN1330

Do you believe it is applicable for the award simplification process?---I certainly don't. The situation we find ourselves in is that - something I operated under for a lot of years - sick leave is personal sick leave. You, I guess, accumulate your sick leave for instances where you're personally ill and as an employer, we, I guess, currently accrue for a particular amount of sick leave but we don't factor it in when we are costing the clients the entire 10 days sick leave. History has shown that employees don't take all their sick leave. They do accrue the leave. In actual fact, when I worked at Chubb I had, I think, it was just under 134 weeks that I lost. But at least it was there if I had have needed it in the meantime. I think the situation with this is that we would see the entire group of sick leave go and that was going to increase the cost to the individual clients at the end of the day.

PN1331

Okay. I take you to page 36. If you can tell the Commissioner - - - ?---Hang on.

PN1332

Mr Drury, I am talking about point 29 - point 5 - point 2(a)?---29 - - -

**** GRAHAM DRURY XN MR CLARKE

PN1333

Point 5 - point 2(a). It is down the bottom of my transcript of or my document at page 36?---Yes.

PN1334

It says:

PN1335

The employer must make monthly contributions for each employee.

PN1336

Do you have a problem with that?---Again I guess like the public holiday situation, the - as an employer, we have an opportunity to - under the legislation that covers superannuation, either pay it monthly, quarterly, 6 monthly or by 28 July, I believe, each particular year. Again, I don't think it is an award simplification process that should be included in here.

PN1337

It is actually in the current award, Mr Drury. And it is just a basic replication. So it is in the current award now?---I know that.

PN1338

Do you believe it should be changed?---I believe it should reflect the legislation that applies to the payment of superannuation.

PN1339

Thank you, Mr Drury. Just a couple of other matters. Do you engage part time employees with MSA Guards and Patrols doing 120 hours a week - - -

PN1340

THE SENIOR DEPUTY PRESIDENT: Mr Clarke, before you go on, can I make two comments. First of all, I will be adjourning these proceedings at a quarter to 5 in order to catch my plane. So you need to think carefully about how you are going to use that time. And secondly, you have repeatedly referred to 120 hours. I take it you are going to explain to me at some point when I hear your submissions the relevance of the 120 hour figure.

PN1341

MR CLARKE: Yes, your Honour.

**** GRAHAM DRURY XN MR CLARKE

PN1342

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN1343

MR CLARKE: Yes, your Honour, I wrote that down on evidence that was given by a witness.

PN1344

THE SENIOR DEPUTY PRESIDENT: All right. Thank you.

PN1345

MR CLARKE: And that witness stated that without naming specific companies, that employees were working - - -

PN1346

THE SENIOR DEPUTY PRESIDENT: Well, let's use your time to best effect, Mr Clarke.

PN1347

MR CLARKE: Thank you. I just want to get clarified with this company whether they are part of that process that that witness gave, your Honour. So I am will be very quick.

PN1348

Mr Drury, any employees - probationary employees doing 120 hours a week?---No.

PN1349

A fortnight?---No.

PN1350

Do you target employees that have been in your service for 15 and 20 years to cut down their hours?---No.

PN1351

Regular part time employees. If you lose a site, what happens with those full time or part time employees pertaining to that site, Mr Drury?---It very much depends on the incoming contractor at the site. Quite often the company that takes the contract over will talk to the employees that are currently there with a view to keeping them on.

**** GRAHAM DRURY XN MR CLARKE

PN1352

This is MSA specifically, okay?---Yes.

PN1353

Is all we are talking about?---Yeah, well we are talking about loss of a contract. So an incoming company will talk to the existing staff. If they don't wish to or aren't offered a position with the incoming contractor, we keep the employees on our books and give them as many hours as we have available. Unfortunately, in most cases the employees find themselves - rather than travelling to one place of employment a week, they may be travelling to three or four or five different sites to build their hours up. But I guess - and I indicated earlier, the - I guess our resource, if you like, and it is the only thing we do have, is the security officers that are in our uniform and when we have got good security staff, we try to keep them on by as close as we can offering them employment on a similar vein to what they were doing before. Quite often it is not possible to do it exactly. But I guess the real proof of the pudding there is that we have got employees at MSA that have been there for 8 and 9 and 10 years and like myself, in the early days, worked in a whole variety of different sites during the course of their employment. They recognise the industry that they have got into and I guess we are all aware of the loss and the gaining of various contracts.

PN1354

So do you make these employees casuals or part timers?---Part time.

PN1355

Are do they still accrue holidays and sick leave?---Yes, they do.

PN1356

Are they denied holidays and sick leave?---No.

PN1357

Regularly employed part timers for less than 38 hours a week. What hours would they be doing, these part timers a week?---I mean, that is a very subjective question and I - - -

**** GRAHAM DRURY XN MR CLARKE

PN1358

Have you got guards who won't work specific hours in the week?---Absolutely. As I indicated earlier, there is some guards that only want to work day shift. There is some guards that won't work weekends but don't mind working at - through the week, Monday to Friday, any hours. There is some guards that prefer to work night shift. Some guards tha won't work night shift. And I guess in general we are aware of that when we take the particular people on. And when contracts come and go, some people we can accommodate a lot easier than others, simply due to the fact that, you know, they are available and willing to travel. Some officers live in particular areas and will indicate that they are prepared to travel maybe from Rockingham up to Fremantle but won't travel to Perth or won't go north of Perth. There is a whole variety of reasons that impact on various hours. And I guess one of the balancing acts we need to maintain is the fact that we need to have sufficient staff to cover the work that we have currently got and the work that comes in. And to have a few people spare but we can't have too many spare people because the part timers that we do have, if we can't maintain a reasonably regular flow of hours for them, they will leave. It is always a situation that requires careful management.

PN1359

No further questions. Thank you, your Honour.

PN1360

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Clarke. Mr Ridley?

PN1361

MR RIDLEY: Thank you, your Honour.

PN1362

THE SENIOR DEPUTY PRESIDENT: Can you give me an idea on how long you are going to need with this witness?

PN1363

MR RIDLEY: You will be away by quarter to 5.

PN1364

THE SENIOR DEPUTY PRESIDENT: Sorry?

**** GRAHAM DRURY XN MR CLARKE

PN1365

MR RIDLEY: You will be away by quarter to 5.

PN1366

THE SENIOR DEPUTY PRESIDENT: That is all right. Thank you.

PN1367

MR RIDLEY: I will be away by quarter to 5.

PN1368

THE SENIOR DEPUTY PRESIDENT: We will see, Mr Ridley, we will see.

PN1369

MR RIDLEY: I beg your pardon?

PN1370

THE SENIOR DEPUTY PRESIDENT: We will see.

<CROSS-EXAMINATION BY MR RIDLEY [4.27pm]

PN1371

MR RIDLEY: Mr Drury, earlier on in the questioning, you were certainly able to give us a very clear indication of how many guards employed by MSA. I think you indicated that there were 29 full time and 17 part time. Are you at a position to give us an indication of the split between - first, for the full time people, between static and patrol? Just a rough guess, is all I am after?---The full time people, 5 static and 24 patrol.

PN1372

The remainder, yes. And in terms of the part time people, I think you indicated there were about 17 people that you retain on your books roughly, if not exactly, the number of static as opposed to the number of - on patrol?---I think 13 patrol and 4 static.

PN1373

And it is, I think, quite clear that you don't - MSA doesn't employ casuals?---No.

**** GRAHAM DRURY XXN MR RIDLEY

PN1374

It is either full time or part time?---That is correct.

PN1375

And so that would mean that the casual rate of pay, that is the award rate, which I understand is carried over into your AWA plus 20 per cent, isn't paid because it is not appropriate to pay so - I don't think I have got much more. In some of your answers nearing the end of your examination-in-chief, in reference to the hours of part timers, the rostering of those part timers, the balancing act that you need to keep in mind in terms of retaining sufficient staff, but at the same time not having too many spare so as to maintain reasonable hours for those that you do retain, is it possible to give the Commission an indication of an average what those permanent part time employees would be picking up work wise week by week?---On an hours basis?

PN1376

On an hours basis week by week. Rough guess?---I would - I guess if we looked at the general group of people that are flexible in their - where they can work and what time they can work, they would probably be working between 33 and 38 hours a week.

PN1377

It seems that from the guts of your comments about the allocation of work to part timers, and reference to the balancing act that - would you not agree that MSA is certainly endeavouring to ensure some sort of consistency and certainty as best as possible for those part time employees?---We are.

PN1378

I have no further questions, your Honour.

PN1379

THE SENIOR DEPUTY PRESIDENT: Mr Uphill?

PN1380

MR UPHILL: There is no questions to the witness, your Honour.

PN1381

THE SENIOR DEPUTY PRESIDENT: Mr Clarke?

**** GRAHAM DRURY XXN MR RIDLEY

PN1382

MR CLARKE: Nothing further.

PN1383

THE SENIOR DEPUTY PRESIDENT: Mr Drury, can I refer you to the definition of part time employee in the current award and you probably don't have it. So let me read it to you. It is a very brief one. It reads:

PN1384

A part time officer shall mean an officer who is regularly employed for and who works a lesser number of hours than 38.

PN1385

?---Yes.

PN1386

Can I just clarify that the part time officers engaged by MSA meet that definition in your requirement?---They do, your Honour.

PN1387

Now, can I go back to a question that I thought Mr Clarke was leading to. Just clarify it in my mind. Do MSA establish a minimum number of weekly or fortnightly hours that part time staff need to work?---No.

PN1388

What would be the smallest number of weekly or fortnightly hours that a staff member would work?---I would hazard to say at the moment it would probably be about 22. And we have a particular person that - I mean that is all they want to work.

PN1389

Thank you. That is 22 hours per?---Per week.

PN1390

Per week. Now, if a part time employee works additional hours over and above those that they are generally rostered for, do those additional hours count for the purposes of rostered days off, annual leave or sick leave accruals?---Yes, they do.

**** GRAHAM DRURY XXN MR RIDLEY

PN1391

Thank you. And, finally, Mr Drury, the award provides in its current form for casual employees and regularly rostered part time employees. Can you give me an idea whether there is a threshold level, at what point is it more economic from the employer perspective to engage someone as a part time employee as distinct from engaging them as a casual employee? Is there a threshold point?---No, there is not, your Honour. I guess at the end of the day whether you are a casually employee or a part time employee and you factor back in the leave and sick leave allowances, it is the same amount. But the - I guess the situation we found ourselves in is most of the employees prefer to be part time and accrue sick and annual leave than be paid as a casual.

PN1392

From a cost perspective, from a employer cost perspective, there is little difference?---I think it is cost neutral.

PN1393

Thank you. Thank you very much, Mr Drury for your evidence. You are released from the witness box?---Thank you, sir.

<THE WITNESS WITHDREW

PN1394

THE SENIOR DEPUTY PRESIDENT: Mr Ridley, does that complete or is the evidence that you propose to bring forward on this matter now completed?

PN1395

MR RIDLEY: It is, your Honour.

PN1396

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Uphill?

PN1397

MR UPHILL: It is, your Honour, yes.

PN1398

THE SENIOR DEPUTY PRESIDENT: Mr Clarke?

PN1399

MR CLARKE: Yes, it is, your Honour.

PN1400

THE SENIOR DEPUTY PRESIDENT: I had originally proposed, given the fact that this matter has taken somewhat longer than I had anticipated, that I would ask the parties to provide written submissions. Given the complexity of the issue, I am inclined towards setting aside another day where upon you could engage me with your verbal submissions. Does that sound a reasonable approach?

PN1401

MR UPHILL: Your Honour, I am eminently attracted to that proposition.

PN1402

THE SENIOR DEPUTY PRESIDENT: You don't like writing much?

PN1403

MR UPHILL: I use a dictaphone rather than write, your Honour. But it just seems to me that verbal submissions are a lot better in this forum and certainly gives an opportunity to get some sort of feedback as to how they are being received as well. So, yes, I am pleased that perhaps another day might be set aside to have verbal submissions.

PN1404

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Uphill, while you are on your feet, can you give me an idea on how long you would require with those submissions.

PN1405

MR UPHILL: My submissions will not be very long. Approximately an hour.

PN1406

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Ridley?

PN1407

MR RIDLEY: Your Honour, mine would be certainly in the vicinity of but possibly a little longer.

PN1408

THE SENIOR DEPUTY PRESIDENT: And Mr Clarke?

PN1409

MR CLARKE: I love writing, your Honour. But about an hour, an hour and a half. Hour and a half, the maximum.

PN1410

THE SENIOR DEPUTY PRESIDENT: Thank you. So I could be reasonably confident if we go off to a fairly early state, say a 9 o'clock start, we could complete the exercise in a day?

PN1411

MR CLARKE: Yes.

PN1412

THE SENIOR DEPUTY PRESIDENT: Thank you. Look, at this stage I propose to list the matter for 9 o'clock on 31 August. I need to say it does have a minor question mark hanging over it in my mind. That I will have to change an existing allocation. But would that date be one that the parties could accommodate? Mr Ridley, I see a look of grave dismay on your face.

PN1413

MR RIDLEY: Yes. It is - foolishly I didn't bring my diary but I am aware that I do have full parental responsibilities for my children. The timing of that day, you would be proposing of what?

PN1414

THE SENIOR DEPUTY PRESIDENT: I would have been suggesting a 9 o'clock start. I can be flexible on that. I was simply wanting to make sure that we - - -

PN1415

MR RIDLEY: Yes, absolutely.

PN1416

THE SENIOR DEPUTY PRESIDENT: - - - could complete the exercise in that one day.

PN1417

MR RIDLEY: It is Friday. It is a Friday?

PN1418

THE SENIOR DEPUTY PRESIDENT: It is a Friday.

PN1419

MR RIDLEY: It is a Friday. Yes, look, I am - yes.

PN1420

THE SENIOR DEPUTY PRESIDENT: I will list the matter for that day. As I said, it has a question mark over it in terms of my ability to allocate that day or more significantly my ability to get away from Adelaide the day before so that I could be here in time for an earlier start. But in doing so, if that day occasions any of the parties a major dilemma, then I would ask you to contact me tomorrow. Back in Adelaide. So that we could possibly look at an alternative. Otherwise, as soon as that date is cleared or an alternative one is found, we will advise the parties by way of a notice of listing. Now, it seems my suggestion of a finalisation of the case by way of a further day's hearing finds favour with the parties.

PN1421

Can I indicate a number of things that I would like to happen both before and on the day of that hearing. In terms of an event that I want to occur before the hearing, I want the parties to have some further discussions. It appears to me that it might be possible to further refine that which is not agreed. And I particularly refer to a number of what I would call peripheral issues that might be possible to resolve between the parties. So that we don't have to spend time debating them on 31 August. And I don't expect a report back on that other than on the day of the final submissions. But I do expect the parties to have a further discussion.

PN1422

Can I say that in the course of the final presentations, I am particularly concerned that the issue of part time work be fully addressed and in particular I would invite submissions on the apparent operation of practices in this industry in Western Australia that seem to make casual employment an extinct or an endangered species. And I believe that is a critical issue that does need to be addressed in the course of this particular matter. Secondly, can I refer the parties to the Full Bench test case decisions relating to both redundancy and personal leave. I would need to have demonstrated to me why it is that this award should deviate from those test case provisions and in that regard I do see the onus as being fairly heavily on the persons who wish to demonstrate or persuade the Commission that it should deviate from those test case standards.

PN1423

I am not saying it is an impossible onus but I am saying the onus is on the party wanting to demonstrate a deviation. Mr Ridley, the history of clause or proposed clause 14.1.4 relating to the resetting of alarms is one that I would appreciate your advice on, given some confusion over whether or not there is an agreement that that provision was made redundant some time ago. Conversely, Mr Uphill and Mr Clarke, I have to say that I will need some far more specific information relating to clause 14.1.1 and the standing of the first aid allowance. To each of the parties I address the issue of wages in clause 12.

PN1424

Now, I understand that is not in dispute but can I indicate that I will require some background information, hopefully by way of an agreed position, that allows the Commission to reach a definitive conclusion on whether those rates are indeed properly set minimums. And, finally, can I say that the simplification of this award is an activity being undertaken pursuant to item 51 of the WROLA Act, if I can nick name it that. That Act sets out some quite specific criteria. I would expect the submissions that I am given on the 31st, to address those criteria and to draw upon them to the extent that simplification changes are proposed. The concept of award simplification like many other concepts I suspect was born as a simple concept.

PN1425

The combination of complex legislation and numerous decisions of this Tribunal means that it is not always as simple as simplification might otherwise be assumed. As part of that simplification, I would hope that we might also look at the question of respondency to this award. I have indicated previously to the parties that I am concerned over the issue of respondency and the need to ensure insofar as that is possible that any award that is finally produced by the Commission in a simplified form is applied to the respondents to whom it is intended to apply and the issue of respondency is addressed. And I invite the parties to consider and possibly even, heaven forbid, discuss that question amongst yourselves. So I trust that those comments might assist you in the time between now and when this Commission next sits on the matter. Do the parties have any questions in that regard? Thank you very much. I will adjourn these proceedings.

ADJOURNED UNTIL FRIDAY, 31 AUGUST 2001 [4.45pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

JOHN DENNISON, SWORN PN693
EXAMINATION-IN-CHIEF BY MR CLARKE PN693
CROSS-EXAMINATION BY MR RIDLEY PN841
EXHIBIT #ALHMU6 EXTRACT LEGAL CO ONLINE INFORMATION ASIC ACT - COMPANY ACT PN902
CROSS-EXAMINATION BY MR UPHILL PN1015
RE-EXAMINATION BY MR CLARKE PN1020
WITNESS WITHDREW PN1051
STEPHEN CRAIG CONNELL, SWORN PN1055
EXAMINATION-IN-CHIEF BY MR UPHILL PN1055
EXHIBIT #CCI1 CHUBB MEMORANDUM DATED 8.8.01 PN1114
CROSS-EXAMINATION BY MR RIDLEY PN1124
CROSS-EXAMINATION BY MR CLARKE PN1209
WITNESS WITHDREW PN1234
GRAHAM DRURY, SWORN PN1240
EXAMINATION-IN-CHIEF BY MR CLARKE PN1240
CROSS-EXAMINATION BY MR RIDLEY PN1371
WITNESS WITHDREW PN1394