C2001/1815, Transcript of Proceedings [2001] AIRCTrans 698 (2 May 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Unit 13-14, Westlane Arcade, Darwin City Mall DARWIN NT 0800
(GPO Box 3544 DARWIN NT 0801) Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER EAMES

C2001/1815

AUSTRALIAN LIQUOR, HOSPITALITY AND
MISCELLANEOUS WORKERS UNION - NORTHERN
TERRITORY BRANCH

and

NORTHERN TERRITORY FIRE AND RESCUE
SERVICE AND ANOTHER

NOTIFICATION PURSUANT TO SECTION 99
OF THE ACT OF A DISPUTE RE ALLEGED
WITHHOLDING OF TRAINING OPPORTUNITIES

DARWIN

9.00 AM, FRIDAY, 6 APRIL 2001

PN1

THE COMMISSIONER: Can I have the appearances please?

PN2

MS HANNAN: For the Australian Liquor, Hospitality and Miscellaneous Workers Union on behalf of Acting Senior Fire-Fighter Strettles and with me, we have MR C. SNOWDEN, an executive member of the NTFFA.

PN3

MR MAPPAS: Appearing on behalf of the Commission of Public Employment. Appearing with me is MR N. BROOKS.

PN4

THE COMMISSIONER: Thank you. Yes, Ms Hannan?

PN5

MS HANNAN: Thank you, Commissioner. This is an application made pursuant to section 99 of the Workplace Relations Act 1996. We say that the Commission has jurisdiction to deal with this matter as it deals with progression through a career path and classification structure which is found in section 89 of the Act, to be an allowable matter. The background to this notification is as follows, Commissioner. The Acting Senior Fire-Fighter Strettles was made Acting Senior Fire Fighter by the Department by memo dated 3 March 1999 which conferred a temporary rank of Acting Senior Fire-Fighter by Chief Ian Ray of the service.

PN6

Mr Strettles was given 2 years to complete the qualifications necessary which would then bring that up to March 2001. Mr Strettles reports that in terms of the courses and qualifications required, under the Career Path Document, that he has completed the following courses and qualifications and I would hand up, for the benefit of the Commission, an excerpt from the Career Path Document which identifies rank, qualifications and NTFS courses required.

EXHIBIT #H1 EXCERPT FROM CAREER PATH DOCUMENT

PN7

MS HANNAN: I should say at the outset, Commissioner, that the provisions of the Career Path Document are incorporated into the Fire Service Employees (Northern Territory Consolidated Award 1993). The authority for that is to be found at clause 7, salaries and classifications at (vii), and I quote:

PN8

Progression through the designation and ranks prescribed by this award shall be in accordance with the requirements of this award and the requirements of the Fire Service national competency standards. Where there is inconsistency between the two, this award shall prevail. The parties are committed to the full introduction of the extent practicable of national competency standards at the earliest opportunity. The requirements that apply for progression through the designations in ranks are as prescribed in the agreed Career Path Document.

PN9

The excerpt that I have handed up marked by the Commission as H1 is an excerpt from that very same Career Path Agreement. Commissioner, if I can direct your attention to the qualifications necessary for an officer to sit for a senior fire-fighter examination under the heading Senior Fire-Fighter. Mr Strettles reports that he has completed or attended the Fire Science Study Group. He has attended Fire Safety. He has completed Fire Safety 1. He has completed Legislation and Administration 1. He has completed Supervision 1.

PN10

In terms of instructional techniques one, he has undertaken the necessary course work save for a presentation that was to be presented at work which involved a 20 minute presentation on Training Small Groups. Mr Strettles reports that he was not aware of the necessary course - if I could take your attention to the requirements for a Station Officer. A Fire At Cause Investigation which was the course that he sought to go on, he reports that he was not aware that it was advertised, or he indicates that it wasn't advertised by Gazette or that indeed, it was known through a letter but that he didn't see it.

PN11

In response to this situation of Mr Strettles seeking to be on the Fire Investigation Course and being advised that he would not be on it, the union first approached the Northern Territory Fire and Rescue Service on 1 March. I just pause there, Commissioner, we did actually have cause to approach the Acting Police Commissioner, John Vallentin, on this issue and indicated that our first approach was 10 March but that was incorrect, it was on 1 March that we first approached the fire service, and subsequently again on 12 March.

PN12

The contact was made by myself to ACFO Stevens and the content of that conversation was that the reason that Mr Strettles was not on the course was that he hadn't done the Train Small Groups presentation. I understood that to be the only barrier and indeed, an examination of the requirements to - in terms of the senior fire-fighter level, that was the only matter that was outstanding. I then understood that the Fire Service would make some inquiries of NTU and put in place a program whereby Mr Strettles could undertake and do that course, do the presentation of Train Small Groups which would then allow him to participate on the course.

PN13

Subsequent inquiries of the NTFRS revealed that they didn't know whether that had taken place or not and in subsequent conversations that I had with ACFO Stevens, they indicated that the course numbers were at 20 and were full and they didn't feel that they could accommodate an extra person. I asked them to re-think their position and in a subsequent approach, on 22 March, I was informed that: no, the course had been at 20. They didn't know whether Mr Strettles had done the Train Small Groups or not and in any event, he would not be able to go on it.

PN14

Disturbingly we then found out that - or the matter was then raised with the Chief of the Fire Service and one of the reasons that was put back to us that Acting Senior Fire-Fighter Strettles could not attend the Fire Investigation Course is that he had not done Supervision 1 and 2. In fact, Mr Strettles has done those courses. He is awaiting a mark. We then found out that another fire-fighter who in fact had not even done Supervision 1 and 2 had been put on the course.

PN15

I anticipate that there may be some history put by the Fire Service in terms of what happened with the Train Small Groups, and I flag to the Commission that I'm advised by Mr Strettles that he had actually set up with the University to do his presentation and a previous request to cancel leave was approved but failed to be processed with the eventual outcome that he was directed to go on annual leave he was to give his course presentation. I should clarify, Commissioner, that Mr Strettles has actually sat the exam for Senior Fire-Fighter.

PN16

He was given a period of time to complete other courses. He has completed all of those courses save for the presentation of Train Small Groups which is not of his making and he now seeks to sit his Station Officer exams and has done a number of those courses that are required for him to do so. We say on merit, that he has an argument that he should have attended the Fire Investigation Course. That Fire Investigation Course started on 1 April so he has missed the boat in relation to that one.

PN17

We have been advised that of those that attended that course, of the 20, probably - and I would have to confirm this - but probably only 10 are fire-fighters. As at October 2000, the documentation supplied by the Fire Service indicated that quite a number of senior fire-fighters had not received any promotions after 1993 and indeed, the Commissioner will recall that last year we had a dispute in this Commission about inappropriately qualified persons acting up to Station Officer level.

PN18

On the basis of what we have put before the Commission this morning, we would say that Acting Senior Fire-fighter Strettles was not - he was not placed on the fire investigation course, which cannot be linked to any plausible reason in terms of merit that can be advanced by the Fire Service. He has completed all the necessary requirements, save for the presentation at senior fire-fighter level and the reason for that has been explained.

PN19

Subject to the views of the Commission, the union has no difficulty in adjourning into conference but ultimately will be seeking the following outcome from the Commission in order to resolve the dispute if the matter cannot be settled: we will be seeking that the NTFRS conduct a fire investigation course before 30 June 2001; the participants on that course be selected on merit, having regard to the provisions of the career path document; having said that that Acting Senior Fire-fighter Strettles' qualifications would mean that he would be placed on that course; that having regard to Acting Senior Fire-fighter Strettles' participation on the fire investigation course that the NTFRS be directed to set in place a time and venue for Acting Senior Fire-fighter Strettles to do his presentation on Train Small Groups.

PN20

We would also be seeking from the Fire Service a current audit of qualifications and courses undertaken by senior fire-fighters prior to the fire investigation course being set. We will be seeking information about the course participants and in the event that this matter goes to hearing will be seeking to cross-examine several witnesses from the Fire Service, so we would need some indication from the Fire Service whether they would be prepared to supply that information or whether the union would have to proceed by way of summons. Those are the submissions for the time being, if it pleases.

PN21

THE COMMISSIONER: Thank you. Mr Mappas? Sorry, Mr Brooks?

PN22

MR BROOKS: Commissioner, just in relation to this matter, the NT - the Fire Service does not believe that this is an industrial matter allowable under the Award. We accept - we note what Ms Hannan has said in relation to section 89 and we don't disagree that the Act provides for the career path to be acknowledged and what we say is: that does not go down to the selection of who goes on what course. We are concerned about the potential this has - this matter here today has to allow similar claims in the future where the Commission's time and everyone else's time is taken up with the - dealing with the grievances because people are not happy that they haven't gone on courses.

PN23

I'm sure Mr Mappas, at a later time, will speak to how the Commission of Public Employment feels in that matter in relation to the Public Service generally. Having received the advice only less than 48 hours ago of this hearing I've been unable to, at this time, put forward an argument on jurisdiction and I reserve - the Fire Serve would like to reserve its argument in relation to jurisdiction to a later time. As stated previously, Commissioner, the career path document does outline the courses necessary for promotion and the structure for people to be promoted within the Fire Service; it does not provide guidelines for selection.

PN24

The Fire Service has a HID section which deals with that and the people within HID determine who goes on courses based on merit, equity and who has done what courses and who needs what. All those elements were taken into consideration. As you'd appreciate, throughout the public sector there's courses that are on every day and people apply to go to courses every day, and when those courses are over-prescribed a selection process has to come into being as to who on merit should go on the course, and that is exactly what the Fire Service has done. In relation to the fire investigation course, there are 20 people on the course, 11 of whom are fire - Northern Territory Fire and Rescue personnel.

PN25

Of that 11, there was a further three members of the Fire Service who were unsuccessful to get on that course. All of the 11 members, in one way or another, are in the same boat as Mr Strettles and that is that they need the course to qualify to station officer. Now, I say one way or another because there was a number of combinations that - elements that people needed to get there and one is that we already have a station officer who is a station officer but does not have this qualification, so the Fire Service have got to make sure that he gets it. Others need it as part of sitting the station officer exams in May/June this year, whenever it is that they are going to be occurring, so they can progress to senior fire-fighter qualified.

PN26

There are still others who have chosen to qualify to station officer through the modern way of doing the Australian Fire Competencies and attain certificate level 4, but they need this course to satisfy the Northern Territory Fire and Rescue Service's element of being qualified to senior fire-fighter qualified. All of the 11, with the exception of one, are in the same boat as Mr Strettles. Sorry, I will say that again - of the 11, one was in the same boat as Mr Strettles; that is, that he needed the course but he wasn't qualified to do the course. His application was unsuccessful; however, because a vacant spot came up - one other spot became vacant and that other person was selected to go on the course, on merit, ahead of Mr Strettles.

PN27

In considering the selection process, the things that the Fire Service take into consideration, HID take into consideration, is completion of previous courses. The Fire Service can't just keep sending people on courses, them not completing it and the person expecting to continue to go on new courses without having completed what has already gone before. As Ms Hannan has indicated, there was two courses in particular that Mr Strettles has not finalised; one that was done in late '99 and another that was done in June last year. I'm told that in both instances he has failed to complete the post-course assignments.

PN28

Now, for whatever reason, they just haven't been completed. So when you are assessing the HID section is looking at who, on merit, should go forward onto this other course these things do get taken into consideration and the fact that he hasn't completed those courses previously that the Fire Service has paid for him to go on, has given him the time off to do, etcetera, those elements have actually not worked in his favour, at the end of the day, when it comes down to having to decide between members who, on merit, should get the spot. It would have been ideal if we at Fire Service could have had 13 spots to go onto the course, that 13 people could have gone on the course but that wasn't the case.

PN29

As I mentioned before, the course was over-prescribed, so decisions have to be made. Ms Hannan made mention of a letter to the Assistant - sorry, the Acting Commissioner of Police, Sir John Vallentin. In that letter there was a suggestion that the Fire Service was victimising Mr Strettles for his previous role as the Secretary of the Northern Territory Fire and Rescue Service - for his role as the Secretary of the Fire-fighters Association. The Fire Service strenuously denies that. In fact, Mr Strettles, as we've just described, as been sent on courses and, in actual fact, when he made his application to go on the fire investigation course he made application to go on another course and his - that application was successful and that course starts later this month.

PN30

So the Fire Service holds no grudge against Mr Strettles. As Ms Hannan already indicated, the course that Mr Strettles has applied for and that this matter is about has already commenced, it started on Monday - or last week, whatever the date was and it finishes next week, so the course is up and running and whatever we decide here today is not going to let him get on the course. The courses are run generally each year, they are very expensive to run, they have to bring somebody up from interstate to run the course and I can advise Ms Hannan now that, no, the NT Fire Service will not give an undertaking to run a course by 30 June when there's a course being run at this very moment, in April.

PN31

The Fire Service does not have the funds to be able to do that and in truth, given that we have got 11 members on the course already, the Fire Service may well - and I say this without advice - may well be looking to fill the numbers if it did run a course - where would it get the numbers for it to do that? The Fire Service is of the view that the proper process to have handled this matter would have been for Mr Strettles to use the grievance procedures and if he wasn't satisfied with the internal grievance procedures within the Fire Service he could have lodged under the Public Sector Employment Management Act an appeal - a grievance appeal under section 59 of the Act and gone that way to air his grievance in relation to not being selected for a course. In his letter - sorry, in his E-mail to Divisional Commander Lockley on 27 February, Mr Strettles said:

PN32

I wish to appeal my exclusion from this course and appeal the inclusion of members who are not qualified to participate.

PN33

Now, that is Mr Strettles' view that they weren't qualified. As I mentioned the Fire Service had already done its assessment of those applicants and put the people that they believed on merit should have gone on the course. Now, we can debate whether that was right or wrong, but that is the process. Mr Lockley was the Division Commander in-charge of the human resource development section for the Fire Service with his colleagues in that office, made the selection process, put everything up on the white board, determined who should get it and that was the decision that was made. There was a structure to how people were decided to go on the course.

PN34

In Divisional Commander Lockley's opinion - and it is his opinion that counts - all 11 were qualified to do the course initially. Later one dropped out, as I mentioned previously, and was replaced by a member who, like Mr Strettles, is not qualified, but on merit was selected ahead of Mr Strettles to fill the vacant spot. Just touching on some of the issues that Ms Hannan raised in relation to the course that Mr Strettles did at the NT University. It was a course that the Fire Service sent him on and it was organised through the university. Once that member goes on that course it is up to the member to organise - to finalise that course with the university as to when that lecturer is available to check whatever assignments that flow from that, or whatever presentations are required.

PN35

It is not a matter of waiting 6, 7 or 8 months, or whatever the period was to suddenly then complain to the Fire Service that nothing has happened, and for the Fire Service to then have to make arrangements for the university for that to occur because Mr Strettles had not done it himself. There is some encumbrance on the person to assist themselves in this process. In finalising at this time, Commissioner, I would just like to state that the Fire Service selection process is fair and equitable in its selection for all courses and, again, I stress that there is no - nothing in the mind of the Fire Service hierarchy that in any way can be deemed to be victimising Mr Strettles.

PN36

THE COMMISSIONER: Thank you. Mr Mappas, did you wish to add anything?

PN37

MR MAPPAS: Commissioner, I just want to support Mr Brooks' submissions and add for the record that the Commissioner of Employment would be very concerned if matters of this nature were to continue to come to this sort of area for resolution. Clearly, there is a section in the Public Sector Employment Management Act, which has been set up to deal with this sort of issue. I note Mr Brooks' mention that the jurisdiction arguments won't be addressed here. I understand and I think I should say that we are quite happy to go into conference to discuss the issue without addressing fully the issue of jurisdiction, but support the general - the thrust of Mr Brooks' general argument that: yes, there is an award. Yes, there is a career path document, but there is nothing in those documents and we don't believe there is anything in section 89A that would say that the actual selection of somebody to go on a course falls under that jurisdiction, but as I say, we are quite prepared to go and have a discussion and a conference. If the Commission pleases.

PN38

THE COMMISSIONER: Yes. Ms Hannan.

PN39

MS HANNAN: Thank you, Commissioner. Very briefly, the letter that Mr Brooks referred to, to Acting Chief Police Commissioner Vallentin was marked, "Without Prejudice", I note that for the record. I am a little concerned about the - it appears to be the approach by the Service and the Commissioner of Public Employment that employees who are covered by an award of this Commission, which also incorporates a career path document, cannot come and have their grievances heard here. In fact, in the particular circumstances of Mr Strettles, he has been trying to get on courses for the past 2 years. He has lodged grievances under the Public Sector Employment Management Act previously and he still finds himself in a position where he is not able to advance. And if that is the view of the Fire Service, that persons cannot bring their grievances to the Commission to have them determined, then that is a view that needs to be shared with the wider member community.

PN40

THE COMMISSIONER: Just in relation to that point, I thought the submission of Mr Brooks indicated that Mr Strettles was currently on another course.

PN41

MS HANNAN: Mr Strettles later on this year, Commissioner, will be doing a Command And Control course.

PN42

MR STRETTLES: Later on this month.

PN43

MS HANNAN: Later on this month a Command And Control course, but as I understand the reason he was knocked back to do the Fire Investigation course, which is one of the next pegs for him to sit for the station officer exam, is that he had not completed all the courses at Acting Senior Fire-Fighter level and the only one that he has not completed - and I need to correct Mr Brooks on this - is the Train Small Groups. He has done Supervision 1 and 2, but he is awaiting the mark.

PN44

THE COMMISSIONER: Yes, the only point I was making was that I thought you were saying that he has been barred from doing courses effectively.

PN45

MS HANNAN: I am saying that he has been rejected from doing the course for the Fire Investigation course - - -

PN46

THE COMMISSIONER: But he is enrolled and is going to complete another course?

PN47

MS HANNAN: The Command And Control course.

PN48

THE COMMISSIONER: Yes.

PN49

MS HANNAN: Yes.

PN50

THE COMMISSIONER: Yes, that is all, I just wanted to clarify that.

PN51

MS HANNAN: But the Fire Investigation course, as I understand it, Commissioner, comes about once a year and previously the Chief of the Fire Service had indicated by memo to Mr Strettles, when they made him Acting Senior Fire-Fighter that: he had 2 years to get his house in order, and that date has now passed.

PN52

THE COMMISSIONER: All right, well, if it is the view of the parties at the bar table that there is value in adjourning these proceedings into a conference I will do that and we will adjourn into conference.

OFF THE RECORD

RESUMED [11.42am]

PN53

THE COMMISSIONER: Ms Hannan?

PN54

MS HANNAN: Thank you, Commissioner, and thank you for the opportunity for the parties to further discuss this issue. Commissioner, the union reserves its position, in terms of the draft order it will be seeking, on the following basis. Acting Senior Firefighter Greg Strettles is to continue - it is agreed, rather, that Acting Senior Firefighter Greg Strettles is to continue to retain his current rank while the following processes take place: Acting Senior Firefighter Greg Strettles' rank will be made substantive upon presentation of the small groups course, which we anticipate will be next week. Mr Strettles is to contact the course convenor from NTU to present that course next week and will be assisted by the Fire Service to enable presentation.

PN55

Further, that upon successful - sorry, upon receipt of marks and successful completion for supervision courses 1 and 2, which are due from the assessor, Murray Tong, which were submitted 3 months ago - just give me a moment, Commissioner. When the outcome is known concerning the above the situation will be reviewed without prejudice to either party. Concerning the course marks for the supervision 1 and 2 course, the union will take up Station Commander Lockley's invitation for the service to chase up with Murray Tong to see where these marks are up to and advise Acting Senior Firefighter Strettles' progress. Finally, in the event progress cannot be made within a reasonable time frame the union reserves its right to re-list this matter, if it pleases.

PN56

THE COMMISSIONER: Thank you. Mr Brooks, do you wish to put anything on the record?

PN57

MR BROOKS: No, Commissioner, other than to confirm that that is the agreement that the parties have reached and let us hope that we can get some resolution on that.

PN58

MS HANNAN: Thank you, Commissioner.

PN59

THE COMMISSIONER: Very good, thank you. Well, in light of that report I will simply adjourn these proceedings sine die, leaving it open to either party to ask for a re-listing if that should be necessary. We adjourn on that basis.

ADJOURNED INDEFINITELY [11.44am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #H1 EXCERPT FROM CAREER PATH DOCUMENT PN7