C3304/200, Transcript of Proceedings [2001] AIRCTrans 880 (14 May 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE MUNRO
SENIOR DEPUTY PRESIDENT CARTWRIGHT
COMMISSIONER DEEGAN

C No 33042 of 2000
C No 33383 of 2000

APPLICATION FOR ORDER FOR TERMINATION OF BARGAINING PERIODS

Application under Section 170MW of the Act
by the CPSU re termination of bargaining periods between CPSU and Minister for Justice & Others in C35507 of 1998 and Australian Protective Service v CPSU in C90235 of 1999

Application under Section 170MW of the Act by the CPSU for termination of bargaining periods between CPSU and Minister for Justice & Others in C36507 of 1996 and Australian Protective Service and CPSU in C 90235 of 1999

SYDNEY

10.00 AM, FRIDAY, 27 APRIL 2001

Continued from 26/4/01

Hearing Continuing

PN1427

MUNRO J: I think Mr McDevitt was in the witness box. No other change is there? Thank you.

PN1428

MR O'BRIEN: Your Honour, before Mr McDevitt does there's one other matter I would like to address briefly if I may.

PN1429

MUNRO J: Yes.

PN1430

MR O'BRIEN: I am in a slight predicament inasmuch as I have some further questions for Mr McDevitt today but there's some other material that I prepared and in the course of just reviewing it last night the document corrupted so I'm at a slight disadvantage. I've had a discussion with Ms Mountford and we agree that a sensible way to proceed is to do what we can with Mr McDevitt today and the union has agreed that he will be available for me to complete the cross-examination 8 May. If it please the Commission.

PN1431

MUNRO J: Very well. Mr McDevitt.

PN1432

MS MOUNTFORD: Your Honour, could I just clarify how we then deal with the re-examination of Mr McDevitt. Will that then be when Mr O'Brien has completed his cross-examination?

PN1433

MUNRO J: I think that would be the normal procedure unless there's some obstacle.

PN1434

MS MOUNTFORD: Thank you.

<VINCENT JAMES McDEVITT, ON FORMER OATH [10.02am]

<CROSS-EXAMINATION BY NR O'BRIEN

PN1435

MR O'BRIEN: Mr McDevitt, can I take you to paragraphs 13 and 14 of your statement. You say there that:

PN1436

The APS required a reduction in salary costs of 20 per cent ...(reads)... conditions of employment.

PN1437

Then you go on to say that:

PN1438

The impact on salaries was closer to 40 per cent.

PN1439

You say also that:

PN1440

The 20 per cent figure has been the backdrop of negotiations since that time.

PN1441

However, was not the 20 per cent figure removed from the negotiations in March 1999 by Mr Studdart the current director?---That is what was stated at the time, however the current secretary of Attorney-Generals, Mr Cornell, again raised it at a meeting eight months ago, something like that, that it was still a reality and you know these financial pressures remain and blah, blah, blah, so.

PN1442

Well financial pressures do remain but did he mention a need for a reduction in salary costs of 20 per cent, are you sure that that's what he was talking about?---In his opening brief, his opening address if you like, it was raised.

PN1443

What was raised?---The 20 per cent.

PN1444

The 20 per cent cut in salary rates?---I can't recall his exact words but it was raised again at that time.

PN1445

But in fact that whole issue was withdrawn in writing and by personal briefing to the group of 7 staff negotiation team as I understand it, is that correct?---What there was, what came about was because of the drastic nature of what was put to us about this 20 per cent it became such an unsavoury topic that management agreed no longer to refer to the 20 per cent but instead they would refer to as the savings requirement, okay, so it was gone in name only.

PN1446

Okay, gone in name only. And so when you say the current secretary Cornell referred to it he was referring to a 20 per cent cut in costs, salary costs, or the savings? I mean you've just made a distinction between precise terms of something that you say there was an issue several years ago and something that you now perceive management making, you make an assumption that management now talk about savings, that they're talking about this 20 per cent cut to salaries. Did Mr Cornell specifically talk about the 20 per cent cut to salaries because I put to you that it is very unlikely, in fact it wasn't the case given that that isn't a requirement?---As I said earlier I cannot recall his exact words - - -

PN1447

Thank you, Mr McDevitt?---I recall 20 per cent.

PN1448

And when do you recall 20 per cent from?---Sorry?

PN1449

You say you recall 20 per cent?---In his opening address to the union representatives, at that meeting.

PN1450

Which meeting?---If you want me to go through the documents and find the exact date?

PN1451

Sure?---Perhaps, I'm just trying to think where's the best place I can find that. It would, the APS have tendered documents which outline a history of negotiations. Now, the meeting that I'm referring to resulted in an offer. If we can go to that it will have the exact date.

PN1452

Perhaps if I can give you, I think you might be referring to attachment 14 to APS1. It's a letter dated 22 June, 2000. Perhaps if I could give the witness a copy of this. The members of the bench will have it in their materials. Sir, are you referring to a meeting around this time associated with this offer?---Yes.

PN1453

But this offer doesn't talk about 20 per cent. Can you show me in this document where it says that there's a requirement for a 20 per cent cut to salary costs?---Well, I daresay that I cannot.

PN1454

So it follows that there has not been, that this issue has not been a backdrop to negotiations since that time?---No, that's a quantum brave leap I think you're making there. Of course it has and I think that's evident in the latest offer from the APS.

PN1455

So it has in your view?---Absolutely it remains there. If the APS was successful in achieving what they've asked for in their draft award they would be saving that amount of money.

PN1456

That's because you equate any discussion about savings as being related to a cost saving requirement of 20 per cent?---Yes, I believe that to be the case.

PN1457

But you can't point to it in this document that I've just handed you?---Well you know, as was discussed earlier the APS agreed not to use the term 20 per cent any more because it had become such a sore point. At the time there was significant discussion about the 20 per cent so as such why would it be raised here in writing I mean, given that both parties had agreed not to speak about it in those terms, you know.

PN1458

Is it possible that the APS position had moved on?---Well, I think their current offer reflects that it hasn't.

PN1459

I'll come back to that attachment 14 that I've given you, Mr McDevitt, but for the moment if we go to paragraph 20 of your statement and you say that, you talk there about a 9 month period when there was no director, that's the case?---That's the case.

PN1460

But Mr Tony Bridges was acting in the director's position at that time, wasn't he?---Yes, he was.

PN1461

And also you say that the three most senior managers had all applied for the director position?---Yes.

PN1462

But in fact only Graham Fry and Renee Vandentol had applied?---No, Mr Bridges also applied to lodge a late application and was rejected on the grounds that it was late, he'd actually changed his mind. He did in fact attempt to lodge an application.

PN1463

He attempted to lodge an application but he didn't lodge an application? He was in fact not an applicant is a logical consequence of what you've said?---No, the logical consequence of what I'm saying is that the three most senior managers were vying for the one job.

PN1464

Mr McDevitt, in early 1999 the staff voted down a certified agreement offer?---In 1999, yes that's correct.

PN1465

That's the 96 per cent result?---Yes, early 1999.

PN1466

What were the elements of that offer?---What were the elements of the 96 per cent offer that went down?

PN1467

That offer that was voted down?---There was the retention periods were in issue, the APSs insistence that they have open slather at stations was at issue. Emergency duty was at issue. The quantum of the pay rise was at issue. Rostered days off were at issue. I'm sure there were others but.

PN1468

Would you agree that the others included CPI increases essentially as part of the quantum?---I think the quantum of that pay offer, I don't recall that it was like CPI, I think it came out at 5.25 or something like that.

PN1469

And there was a $500 sign on bonus?---I believe there was.

PN1470

And there were changes to overtime rates Monday to Saturday from an average of 181 per cent to 170 per cent?---Yes, that's sort of a nice way of saying double time down to 170 per cent.

PN1471

Mr McDevitt, was there a projected saving to the APS in this offer, do you know?---Was there a projected saving? Certainly, an enormous saving. If you look at today's documents you'll see the APS has conceded that for instance RDOs are worth 5.25 per cent, that's according to them, I think they're worth far more than that, however according to them. I've just articulated to you that in that offer the pay outcome, the quantum was 5.25 per cent so therefore you see that we've lost RDOs, there's a 5.25 outcome, but on top of that we have this big long list of additional productivities so if you ask me was there a projected saving from that offer I'd say there was an enormous saving. They were going to make a killing.

PN1472

And in fact the saving projected was 1.2 million?---Well, that was the APS figures, I suggest to you it was millions more than that.

PN1473

But in June 2000 the secretary of the Attorney-General's Department, Mr Cornell, proposed another offer and this is the offer that's detailed in the letter that I've given you, that's the case?---Yes, that was the case there was another offer, yes.

PN1474

And what were the elements of that offer, I mean, they're set out there in the letter?---Sorry, you want me to tell you what the letter said?

PN1475

Yes? Well, what are the elements of the offer set out in the letter that you have there?---There was a, you want me to read it from the letter?

PN1476

Yes, well point 1, the second paragraph point 1, in terms of quantum. I'll read it for you and you can indicate agreement or otherwise.

PN1477

Any staff who elect to forego rostered days off will receive a pay increase of 15 per cent over the three year term of the proposed certified agreement payable in three instalments.

PN1478

That's in front of you, isn't it?---Yes, that's in front of me.

PN1479

Then:

PN1480

Staff who elect to retain rostered days off are to receive a pay increase of 6 per cent over the three year term of the proposed certified agreement payable in three instalments.

PN1481

That's there?---That's there.

PN1482

There are two other issues about RDOs that have arisen?---Yes, on this occasion, like what this was was a last ditch effort by the union to achieve an agreement rather than go through an arbitrary process and so we basically bent over backwards, overextended ourselves, and when we sounded our members out with this they went ballistic and it was just out of hand and - - -

PN1483

Thank you, Mr McDevitt?---And we articulated that at the next conciliation meeting where the APS subsequently offered 21 per cent.

PN1484

Thank you, Mr McDevitt. For the moment I just want to enunciate the elements to this offer. The other elements included again the same changes to overtime rates 181 to 170 per cent from Monday to Saturday, staff to be rostered off on public holidays will not be paid. And there was a three month retention period in that offer. You agree that these are the elements that are in the letter?---I agree that they're the elements, yes.

PN1485

And there was to be a voluntary loss of RDOs in a move to 40 hour week, so that was one of the elements too, wasn't it?---I don't think so, yes, well there was voluntary, as you say that's the two quantum payout sums, yes.

PN1486

That's right. There was a choice whether you could cash out your RDOs for 6 per cent?---Yes.

PN1487

Against that background was there a projected saving to the APS in that offer, do you think?---Yes.

PN1488

What do you think the saving might have been?---Well, it would have depended upon, to a large extent, the number of officers who elected to forego their RDOs. Okay, so it's variable.

PN1489

Perhaps in the interests of time, Mr McDevitt, I could indicate - - -

PN1490

MS MOUNTFORD: A point of order, your Honour. We have a concern that Mr McDevitt is not in a position to really understand or calculate the savings, and I would suggest unless they were actually presented to Mr McDevitt by the Department, I don't think it's reasonable that he be asked to quantify.

PN1491

MR O'BRIEN: I withdraw that question, your Honour.

PN1492

I put it to you that there was no saving and in fact that 3 percent of that offer was not directly funded. Are you able to comment on that?---Absolutely.

PN1493

Yes or no, do you think that's a fair assessment?---No, not fair at all.

PN1494

In any case, as you've indicated, the offer was rejected but is it fair, then, to say that despite APS moving from CPI 15 percent, from a compulsory 40 hour week, to a voluntary move to a 40 hour week, from no retention period to a three month retention period, from a $1.2 million saving to an estimate additional cost of 3 percent unfunded, despite that transition in the APS position it's true to say, isn't it, that the union rejected both offers?---Is your question is it true to say the union rejected both offers or are you asking me to comment on that litany?

PN1495

My question is, despite the transition, the change in the nature of the APS offers, the union still rejected the second offer?---When you speak about the change in the APS position, for instance, on the retention periods I would say to you that we were still looking at what we had enjoyed at that time was seven and 13 months; yes, the APS had offered three months. Okay, so you're sort of saying that's some sort of generous acknowledgment on their behalf.

PN1496

I am simply asking you, in relation to the two separate offers they were both rejected even though you would acknowledge I assume that there is a difference in the makeup of the offers?---There is. At that meeting that you're speaking about it was the union that made the concession in relation to RDOs.

PN1497

But I am not interested in who made concessions, I'm simply asking you about the different offers?---Yes, the offers were changed and they were rejected.

PN1498

Thank you. Now, in your statement you speak about reductions in service hour requirements by clients and you claim that this results in productivity savings for the APS?---Yes it does.

PN1499

Isn't it true that this results in reduced revenue for the APS?---Are you saying that productivity is only quantifiable in dollars?

PN1500

No, I am asking you whether a reduction in service hour requirements by clients must necessarily result in reduction in revenue?---Yes.

PN1501

Thank you. Isn't it true that the changes to shift rosters to reduce staff numbers on week ends and public holidays is designed to bring these numbers in line with the client requirements, that is, what the client is prepared to pay for?---No, what the APS have done by standing people down effectively on weekends and public holidays, is they have compressed a surplus staff into a Monday to Friday period so now they're over servicing a lot more on Monday to Friday because they've effectively removed almost a third of the working days available by black banning weekends, so you've got this over-servicing scenario.

PN1502

Can I stop you there, Mr McDevitt. Your answer to that question is no, that's correct?---No.

PN1503

You say no, so over rostering on weekends and public holidays which attract higher overtime and penalty rates actually means that the APS has to pay wages and penalty payments if they don't receive funding from the clients for?---If the APS appropriate staff their workplaces they wouldn't have over servicing on weekends, would they?

PN1504

Does this occur?---No, because APS are standing people down.

PN1505

And do you not think it's reasonable that the APS should manage staffing arrangements to ensure that they match as closely as possible a provision of staff with client requirements?---Exactly, that's my point that I've been trying to explain to the APS. They should only match the client requirements.

PN1506

Thank you, Mr McDevitt. Can I take you to paragraph 33 of your statement where you talk about members voting to commence one hour stop work meetings and the industrial campaign generally?---Yes.

PN1507

We've already established that not all staff are CPSU members; that's correct, isn't it?---That's correct.

PN1508

Some belong to the TWU, don't they?---That's correct.

PN1509

Some people to APSA?---That's correct.

PN1510

Some are non members of any organisation?---That's correct.

PN1511

At paragraph 33 you say:

PN1512

The members voted to commence one hour stop work.

PN1513

So staff didn't participate in these votes, just CPSU members?---CPSU members elected to commence industrial action which was supported at the stations by APSA members.

PN1514

Who participated in the votes, Mr McDevitt, that's the question?---CPSU members.

PN1515

So the staff support that you purport to have elsewhere, and the flavour of that is sprinkled through your statement, whilst you purport to represent them they didn't participate in the ballot. That's the case?---I have documents from the Transport Workers Union indicating their total support for the CPSU pursuing arbitration.

PN1516

Yes, I'm simply interested in who participated in relation to the CPSU. My next question is both the APS and the CPSU exercise their rights under the Act to take protected industrial action, is that correct?---Were we locked out, yes.

PN1517

No, the question is both the CPSU - - -?---Yes, I agree with you.

PN1518

In paragraph 34 of your statement you say that:

PN1519

Once the stoppages commenced management stood down staff for the remainder of their shifts.

PN1520

?---That's correct.

PN1521

But CPSU took industrial action first, didn't it, following from that, Once stoppages commenced?---We conducted, yeah, stop work meetings.

PN1522

Yes?---Yes.

PN1523

And the APS took its industrial action in response to that CPSU action, is that correct?---That's correct.

PN1524

So when employees who engaged in industrial action were stood down for the remainder of the shift they were generally replaced by police, weren't they?---There was a blend of police and private security guards and clients' staff.

PN1525

The APS says that one reason for this was because of the need to provide continuity of service to the client, is that correct?---I understand that's what the APS have stated, yes.

PN1526

There are also other significant operational reasons such as issues associated with weapons issue and the custody by officers of weapons in circumstances where they were either on strike or stood down. Do you accept that?---I have to bring to your attention at this time that that action, the one hour stop works, we undertook to give management three days notice prior to our hour stop work meeting, okay, so - - -

PN1527

That may be the case, Mr McDevitt, but that's not my question. My question is do you acknowledge that there were operational needs - - -?---In relation to handing in firearms, no, absolutely not. We can hand in a firearm at the beginning of a one hour stop work meeting and have it re-issued an hour later, the same as we do - - -

PN1528

How long does it take to have a firearm issued?---About five minutes.

PN1529

About five minutes. Might it take longer than that?---No.

PN1530

Only five minutes?---Yeah, five minutes.

PN1531

Five minutes by how many people at Brisbane Airport, 34?---Not on one shift.

PN1532

How many on a shift?---Well, depends if it's day shift or night shift, but maybe eight, six to eight.

PN1533

Six to eight by five minutes and then it wouldn't be a simple calculation of eight times five minutes, would it, there would be a few minutes in between and what have you, so we're looking at maybe 40 minutes to issue - - -?---Better than 11 hours that we were stood down for, isn't it?

PN1534

Yes, but the point is - do you agree about 40 minutes to issue weapons to eight people?---No, I wouldn't.

PN1535

What's your estimate, half an hour perhaps?---Yes, at the most.

PN1536

So half an hour to issue, half an hour to hand them back in, there's an hour so you've just doubled the time of their stopwork meeting, that would be correct, wouldn't it? You've doubled the loss of time to the APS, do you agree?---I agree that there's lee time but for instance when the one hour is stoppage is started the way that it actually occurred in the workplace was the supervisor was advised, as I said three days in advance. It was arranged at - - -

PN1537

The supervisor was advised?---It was arranged at the time so for instance if our stopwork was to commence at 9 o'clock people would remain on the floor until 9 o'clock. It was during our one hour stopwork that we weren't getting paid that we returned to the office and handed in our firearms and all that sort of stuff, okay, and if we were to recommence duty at 10 o'clock again that issuing of firearms would have taken place during our one hour stopwork, all right. It was a one hour off the floor period that we were proposing with three days notice.

PN1538

All right Mr McDevitt but do you accept the proposition that in the circumstances APS had no practical alternative but to respond in the way it did to the action that you initiated to maintain continuity of client service?---No I absolutely reject that.

PN1539

But you've already given - - -?---I think that was a vindictive pay back at the time to be honest.

PN1540

A vindictive pay back, so it wasn't a vindictive pay back on your part to initiate industrial action?---Absolutely not. Look, when we commenced the industrial action at the date and look at what we endured before we finally elected to do it, it was only the result of APS again walking away from negotiations, it was a desperate effort you know.

PN1541

Thank you Mr McDevitt. Look, you did indicate that you always gave three days notice as required by the Workplace Relations Act?---Until such time as APS started standing people down.

PN1542

But then you didn't give notice?---No.

PN1543

So perhaps you didn't take protective industrial action?---Yes of course it was protective.

PN1544

But you didn't give notice?---I'm not with you.

PN1545

You have to give notice - - -

PN1546

MS MOUNTFORD: Your Honour, I think Tony is asking Vincent to try and explain the legal processes that are otherwise usually managed by officials, not workplace delegates.

PN1547

THE WITNESS: What happened was, we did give notice in by way of written documentation of our intention to conduct stopworks, random stopworks without notice, okay, so as much as that's concerned, like the ongoing action was covered by an initial warning which said:

PN1548

As a result of your mandatory stand-downs of staff -

PN1549

Because what happened was, it was ridiculous, we'd give three days notice that we were going to have a one hour stopwork trying to be responsible and ensure that there was continuity of service and all that sort of stuff and APS just abused it and used it against us by standing us down so why would we then set ourselves up again by trying to be nice.

PN1550

MR O'BRIEN: And sometimes when you gave, I think you just said when you gave notice you gave it to the supervisor?---No, what I'm saying is the supervisor of the shift was always advised prior to us walking off the floor of course.

PN1551

As a separate process?---Well yes but he was generally informed because a lot of the supervisors are CPSU members and a lot of them also participated in industrial action.

PN1552

Sure. In terms of giving notice and complying with the requirements of the Workplace Relations Act in this respect you obviously as an official of the union have recourse to the resources of the union and the advice, the legal capacity and capability that the services of the union provides as part of the infrastructure?---Sure.

PN1553

Now you say at paragraph 34 of your statement that talking about the members, that their financial losses were considerable as a result of being stood down, that's correct?---That's correct.

PN1554

As secretary of the CPSU APS section over the last eighteen months and your other role as a union official as indicated in paragraph 2 of your statement and given your long involvement in unsuccessful agreement negotiations at the APS since late 1997 and your involvement during the 2000 industrial campaign would you be familiar with section 187AA of the Workplace Relations Act?---No.

PN1555

Did you seek advice from the union, national office or state office?---Of course, on a daily basis from day one of the process of being constantly in contact with the union for technical advice and what have you. I mean people in the job and myself likewise, we're not even aware of the complexities for instance of initiating a bargaining period in relation to being able to take protected industrial action and which sort of make explain your comments yesterday about the late triggering of a bargaining period in mid 1998, that's not to discount the fact that there was meaningful discussions prior to the initiation of a bargaining period. You sort of couched it yesterday that we weren't interested in an agreement because we hadn't filed a bargaining notice until mid 1998.

PN1556

Well there certainly does appear to be a picture building of that. So you say that you're not aware of section 187AA?---I'm not aware of what that section is per se, I couldn't identify it but if you tell me what the section is I'll tell you if I'm familiar with that section.

PN1557

Well section 187AA prohibits receipt of strike pay in certain circumstances?---I am familiar with that, yes. What it means is, is that for instance if we wanted to do something more minimal than a stopwork meeting, for instance in the history of the APS our industrial action in the past has been such things as a paperwork ban where we wouldn't write down the log books of the vehicles or something but the Workplace Relations Act makes it illegal for us to receive pay, salary for even that so obviously you sort of absent yourself from the workplace, like you don't have a lot of choice. For instance, I'm not going to come to work and do a paperwork ban but do all the rest of my job and not get paid, you know what I mean, like you sort of have to absent yourself because of that particular section which is, I can't understand why that's in there, I mean it would have been in all parties interests I think just to you know do some sort of token gesture rather than absent yourself from the workplace, it was certainly not in the staff's interest to do that.

PN1558

Would you also be aware that section 187AA prohibits payment of strike pay in certain circumstances, not only does it prohibit the employee from receiving pay but it prohibits the employer from making payments?---Yes, I'm aware of that.

PN1559

And it's a requirement of the Act and also Government policy, did you know that?---I'm sorry?

PN1560

It's all a requirement of Government policy in the Australian Public Service?---Sure, sure, yes I understand that.

PN1561

Did you advise members of this?---That they would not be paid?

PN1562

Yes?---Yes, for the duration of the action.

PN1563

So all members who took industrial action were fully informed of this fact, they were aware that their pay would be cut during the industrial action?---That's correct but what they weren't aware of of course was the stand-downs, they didn't anticipate that the APS would lock them out for the rest of the day.

PN1564

So they didn't appreciate, perhaps you didn't inform them that the Workplace Relations Act provides a set of rights, responsibilities and obligations on both employees and unions?---I actually did inform them that the APS could respond with a lock out but we didn't think that they would do that. Like that was one of the fears I guess behind station agreements, staff sort of felt that if you have this remote station somewhere and they've entered into a station agreement to be subsequently confronted with an APS position similar to what we've been confronted with now, like sign this thing or you don't get a pay rise, if the staff at a station subsequently engaged in industrial action the APS would lock them out and indefinitely fly in ten staff from Canberra or Sydney and break these people's backs financially to the extent that they'd have to sign, you see it was about a divide and conquer thing in some staff - - -

PN1565

You say that the APS would lock them out, don't you mean that they could lock them out?---Sure, yes, exactly.

PN1566

But they could also exercise their right to take protective industrial action?---Yes.

PN1567

Has any of that happened at stations?---Well we haven't, thankfully we haven't - - -

PN1568

So it's not an issue?---No not yet but no thanks to the APS.

PN1569

MUNRO J: Was the notice given of the lock out, do you know?---Was the notice given?

PN1570

Yes. Well in your own case you say you gave the supervisor of Brisbane Airport three days notice of your intended one hour stoppage. Were you given any - what form of notice, if any, did you receive as to the lock out?---To be absolutely honest I cannot recall although I do believe that I was aware prior to the commencement of the stop work meeting that we would be not allowed to return to duty.

PN1571

I see, but you don't know how much beforehand?---No.

PN1572

MR O'BRIEN: Going back to the issue of continuity of service provision are you aware that the ..... regulations provide a legislative requirement in relation to the Counter-terrorist first response function, that APS performs at designated airports for continuous patrolling?---I am aware.

PN1573

You are aware of that and so going back to the one hour stand down and then the issue about weapons being handed in and reissued and what have you, you would appreciate then that a one hour stoppage would breach this legislative requirement for the APS to provide that continuous- - - ?---No, it wouldn't because we gave three days notice. Okay, so there was no doubt at any time that there would be patrolling. Okay, even in the absence of Australian Protective Service Officers there was no doubt that the function would continue to be performed - - -

PN1574

Indeed, Mr McDevitt, can I suggest that that was the outcome because the APS took the action that it did, it ensured that the legislative requirement was met, that's true, isn't it?---It was unnecessary. It was unnecessary, it was covered - yes, sure the APS took action to ensure that there was continuity of service provided. What I'm saying is through their actions they not only injured staff but they also injured the organisation in as much as they then had to pay police or whoever 12 hours pay when they had their own staff there that could have done 11 of the 12 hours. It just seemed ridiculous at the time and I know there was a lot of station managers scratching their head and thinking this is crazy. Our people are here ready to work and - - -

PN1575

Thank you, Mr McDevitt. Look it's true, isn't it, that the client at Brisbane Airport demanded replacement staff in the face of your officers taking industrial action and in fact they'd pre-arranged and had on stand by private security providers to take over the shifts and provide the continuity of service provided?---It is true that they demanded continuity of service but when you speak about private security providers, no, that's not correct. Okay, it was Queensland police. It was complimented by some private security - - -

PN1576

I think you've indicated that before, thank you. Are you aware for example that the APS carried the cost of replacing staff with private providers?---I am aware they carried the cost, yes, I am aware of that, yes.

PN1577

I think you just indicated that they did?---Yes, but instead of paying us they have to pay them.

PN1578

Now, but in terms of the industrial action that was taken so you had informed the members of the practical consequences in terms of the loss of pay. So they went into it with their eyes open, correct?---Yes, correct. When members agreed to participate in the one hour stop work as I say it was anticipated or believed that management would lock us out.

PN1579

Well you were prepared to believe all sorts of other nasty things about management why wouldn't you think that that might be a possibility, particularly if you have an appreciation of the Act?---Well, because it was such a senseless direction.

PN1580

Thank you, Mr McDevitt. But it follows that any subsequent financial losses by members was as a direct consequence of that informed choice that they made, you'd agree with that?---Yes, I would agree with that. In relation to the APS picking up the cost would you agree that if a private security guard replaced an APS officer they actually saved money.

PN1581

Mr McDevitt, I'm asking the questions here. The CPSU submission at paragraph 76 of CPSU1 that states:

PN1582

That any loss of income for employees as a result of protected industrial action is an appropriate consideration in relation to the quantum of wage adjustments in any MX award.

PN1583

Is that what you're suggesting, are you seriously suggesting that that's a - - - ?---I think that statement sort of goes more to taking into account not only the financial sort of stresses that were placed on members but the fact that they were treated in this way by their employer. The environment that we've been working in.

PN1584

But you're making that same point, aren't you? I mean you make the same point in your statement that - - - ?---I make the point that members suffered financial losses because they were locked out.

PN1585

But you're also making the point that that ought to be a consideration for the Full Bench for the Commission in determining to give you 27 per cent rather than something less than that?---As I said I think that clause lends itself more for the Commissions discretion in relation to the environment of what went on. You know the financial considerations would probably be a very minor aspect of that. I think the greater consideration would go to - - -

PN1586

But a consideration nevertheless in your view?---I think it's worth noting, yes, that that's the way that members were treated.

PN1587

Do you think it's a realistic expectation of the CPSU or of members given what the Act provides for in relation to MX arbitration and what the criteria are for the Commission to consider?---When you say is it a realistic expectation, that's a bit vague I guess. I mean my expectation is that the Commission will take that into account. If you're asking me do I expect the Commission to give me 27 per cent because I got stood down, no, I don't expect that.

PN1588

No, but as you've said you think that it's a consideration, albeit it perhaps a minor one that the Commission should take into account in fixing a rate for you?---In relation to the environment of being stood down, or in relation to the finances?

PN1589

No, what I understand you to be saying and I just want you to confirm it. Is that you believe that because these people lost money due to the industrial action that they took, that that is a factor, albeit a minor factor, that the Commission should bear in mind when arbitrating an award. That is the case, isn't it, Mr McDevitt?---Yes, okay, yes.

PN1590

So you believe that an MX award should effectively reimburse employees for any loss of income as a result of protected industrial action taken in pursuit of negotiations, yes or no, as a matter of general principles?---Could you just say that again?

PN1591

Do you believe that an MX award should effectively reimburse members for the money that they lost as a result of taking that industrial action?---Well, the problem I'm having dealing with this question is that it's a two way question. What I'm saying - - -

PN1592

Let me rephrase it. Do you believe that by that being a factor for the bench to consider in arbitrating that that's a relevant consideration to effectively reimburse the members for the money that they lost?---To the extent that the parties were reasonable during the period.

PN1593

Do you believe that an MX award could effectively do that?---An MX award could effectively take into account the behaviour if you like of the reasonableness of the parties, yes, I think it's appropriate that they do.

PN1594

But they couldn't factor in the element that there was income loss due to taking industrial action?---In as much as the environment, the treatment that staff received, yes. Certainly they should take that into account I believe.

PN1595

But there's a specific prohibitionary act, isn't there, against payment or - - - ?---Sure.

PN1596

MS MOUNTFORD: Your Honour, I don't think Mr McDevitt really knows the insides and outs of the Act. I think he's made his point clear.

PN1597

At paragraphs 35 and 36 you go on to indicate that there was a further industrial action and then members voted to terminate the bargaining period. So at this stage members committed to an MX arbitration process, didn't they?---What occurred was, after the industrial action the director was approached with basically it was a white flag. We sort of said, look we'll knock off this industrial action, let's go back to the negotiating table. The director rejected that on the grounds that his - I actually have the letter if you'd like to see it. His amply qualified and experienced staff are not available to conduct multiple sets of negotiations because they're too busy with their schedule of making station agreements. However, he was prepared to talk to us in three weeks time if we agreed to that cooling off period which just happened to cover the Queen's visit, but that's fine. If we agreed to no industrial action for three weeks he would speak to us again. However, during that three weeks he would not cease negotiations for station agreements and he required the union to write to him in writing indicating that we were prepared to do all this and he also said that basically it's not worth talking unless you're going to move considerably towards my position. So that was the response that we got to our peace offer to knock off the industrial action and go back to the table.

PN1598

The response was a cooling off period to allow the parties to- - -?---Would you like to see the letter?

PN1599

- - - crystalise their - no, I wouldn't, Mr McDevitt but what you're saying, yes or no, is that part of the response was a cooling off period to allow the parties to crystalise their positions prior to further negotiations. Is that an unreasonable response?---Absolutely under the circumstances.

PN1600

The point I want to make is or the question I have for you in terms of - you say that the vote was taken in May, 2000 to terminate the bargaining periods by an excess of 90 per cent of CPSU members?---That's correct.

PN1601

Do you mean 90 per cent of all CPSU members at APS?---That's correct.

PN1602

But what about the 35 per cent of staff, some of whom are in fact, CPSU members who are already covered by agreements or about 30 per cent at that stage perhaps?---Sorry, you've lost me?

PN1603

All CPSU members in APS voted?---That's correct.

PN1604

Including those who were covered by agreements already?---No, like for instance we have - we have for instance 8 members at DPU in Sydney which is where the APS have a certified agreement. Those 8 members voted against that station agreement. Twenty five per cent of the station voted against it but they were overruled.

PN1605

What you're saying is, that the valid majority in the case of Sydney's DPU certified agreement voted the agreement after it had met the statutory requirements of the Act and was certified by the Commission but that those minority of members there who didn't agree with it and perhaps even some who did, who knows, but the point is, that those members who were covered by an agreement also participated in this vote?---You've got to understand the way that this took place.

PN1606

Did they or not, is the question?---What I'm suggesting to you is that - - -

PN1607

What I'm asking you- - -?---If you're asking me do I happen to know for instance the names of phone numbers of those eight people and were they rang and asked - - -

PN1608

I'm not asking you that?---What I'm saying is, all CPSU members were canvassed and consulted and given the opportunity for input which they gave to their respective delegates, that subsequently participated in a phone hook up when we discussed arbitration and I might bring to your attention at this time that we actually invited Commissioner Deegan who had had dealings and a familiarity with the process to participate in that phone hook up and to explain to members in no uncertain terms the perils and - - -

PN1609

Mr McDevitt, I think you're off on a tangent. I'm talking about the May, 2000 decision not the November or December phone hook up that you're referring to?---So, is it your point that perhaps there was some CPSU members who didn't have input in that vote, is that your point?

PN1610

No, it's not, let me rephrase the question or put the same question to you again effectively. You say at the last sentence of paragraph 36, "The national vote taken in May, 2000 was supported by in excess of 90 per cent of CPSU members"?---That's correct.

PN1611

My question is, did members who were covered by agreements also participate in that vote? The answer would seem to be, yes, from what you've said. Can you confirm that that's the case?---Well, I'll say to you two things. For a start, even if they didn't, they still don't make up more than 10 per cent of CPSU members and secondly - - -

PN1612

That's not my question. I would simply like you to answer yes or no?---I would say, yes, they did.

PN1613

Now, you say there was a national vote taken. Was there in fact a vote taken? How did the process work?---If you are asking was it a formal vote in the sense of did we send out ballot papers - - -

PN1614

Then the answer would be, no, correct?---No, that's correct.

PN1615

HIS HONOUR: How was the vote taken?---Delegates, the staff representatives from the various stations gave feedback on the phone hook up of how many members are in their station. How many members were consulted. How many members wanted to go for MX arbitration; that was after they had been provided with all the information and warned about the unknown nature - - -

PN1616

Well, the answer is through the process you've just described. The delegates reported on a canvass of members at their particular sites?---Yes.

PN1617

MR O'BRIEN: That must be a difficult process with shift workers?---It is. It is an extremely difficult process and just for a moment you might see it from my perspective just how difficult this whole thing has been for shift workers. It is very difficult but we go to great lengths to accommodate those unique environments. We give as much notice as we can. Like, our phone hook ups because of the nature of the beast, they run into thousands of dollars to make sure members get the input; just for a phone hook up.

PN1618

But it must be a bit of hit and miss affair even so?---Yes, yes, I'm sure it is.

PN1619

It wouldn't have the same efficacy as a ballot, would it? I appreciate that that may not be practical but I simply want to make the distinction. It wouldn't be sort of 100 per cent - let me rephrase it. It wouldn't be - it would be a bit hit and miss, wouldn't it?---I think there may be isolated instance of very minor dissatisfaction with the process.

PN1620

Look, I'm not suggesting that- - -?---I know what you're suggesting. I accept that it would not operate at 100 per cent on every instance and on every occasion.

PN1621

Just on a slight tangent. In relation to the Geraldton Certified Agreement, it is true, isn't it, that not only CPSU members voted in favour there but also CPSU delegates at that station voted in favour of that agreement?---Well, you say, delegates.

PN1622

Delegate?---Yes, delegate.

PN1623

Is that the case, yes?---Yes, that's the case and doesn't that say a lot to the CPSU.

PN1624

Well, it does in some ways, yes. The CPSU isn't party bound to that agreement, is it?---Is the CPSU party bound? No, because I think that's an LK agreement.

PN1625

Yes?---And the CPSU reserves its right the same as any other industrial representative advocate.

PN1626

But the CPSU, you may or may not be aware, but the CPSU and other agencies is routinely party bound to LK agreements, is that the case?---You've got to understand that the CPSU position is for a global outcome and as such we did not seek to participate in or be party to necessarily any station agreement because our position was that this is not in the best interest of members.

PN1627

In fact it is the case, isn't it, that of the three section 170 LK agreements at the APS, the CPSU isn't a party bound to any of them?---The first station agreement the APS succeeded in getting was the CPSU agreement which was - - -

PN1628

That was an LJ agreement at Woomera, if that's the one you're talking about?---Yes, exactly.

PN1629

But my question goes to the three LK agreements, Sydney DPU, National Central Monitoring Station and Geraldton?---Yes.

PN1630

Not party bound to any of those is the CPSU?---That's correct.

PN1631

There's no policy impediment with the CPSU in this respect?---No.

PN1632

And the requirement in fact is to have one member - usually one member of the station to ask you to be bound. Is it that you weren't able to meet that requirement or is it that you chose not to for APS specific policy reasons perhaps - the CPSU, I mean?---The CPSU represented the members in those locations to the extent that we gave them all the information. We did not seek to become a party bound to those agreements because we didn't support them.

PN1633

I would like to direct some questions now to paragraph 77 of the CPSU - exhibit CPSU 1. I'll read it to you and you'll no doubt be familiar with it and let me know if you're not. At paragraph 77:

PN1634

The CPSU submits that the merit of increasing the base rates of salaries for APS employees rest on a number of ...(reads)... and the employers capacity to pay.

PN1635

So, against that background are you familiar with that, are you comfortable with that, thank you. Are you aware of changes in the Commission's wage fixing principles in the last 10 years?---Didn't we speak about this yesterday? I answered this yesterday in quite a lot of detail I thought.

PN1636

Okay, well, let me go to a more specific question. In emphasising the wage rate comparisons that you do in that paragraph, in that submission that the union does. Has the union given any consideration to any of those changes in the Commission's wage fixing principles?---Absolutely.

PN1637

PN1638

You have?---Yes.

PN1639

Thank you. Would you agree then, that setting aside special cases, the principles have not allowed for awards to be adjusted primarily on the basis of wage comparisons or market rates, or comparative wage justice for many years?---I agree with you that the fixation system has changed. I disagree that it has been the case for many years that the Commission does not take those things into account.

PN1640

Thank you. Did the union give any consideration to that in basing its wage claims on the wage rate comparisons that you rely upon?---Did we give consideration?

PN1641

Yes?---We gave a lot of consideration, very careful consideration.

PN1642

We touched on this yesterday too, but, there are some different issues here. You are generally aware aren't you, of the move towards enterprise bargaining since 1991?---Yes.

PN1643

In the community generally in the Federal system and you are generally aware of the move to decentralise agency bargaining in the Australian Public Service in 1997?---Yes.

PN1644

Do you agree that the enterprise bargaining context allows the parties to have more regard to the needs and circumstances of particular enterprises and workplaces?---I would agree with that, yes.

PN1645

Thank you. Would that also include productivity improvements at those enterprises and workplaces?---Sorry, can you just join that up with your previous statement?

PN1646

Does the enterprise bargaining approach also include productivity improvement or those enterprises in workplaces?---Sorry, can you just join that up with your previous statement?

PN1647

Does the enterprise bargaining approach also include productivity improvements of those enterprises and workplaces?---Of course.

PN1648

Thank you. In looking at the wage rate comparisons the union seeks to rely on in this case, those that I have outlined in paragraph 77, how did the union address the fact that increasingly such wage rate comparisons reflect the differences in productivity performance of individual enterprises?---How did the union address - - -

PN1649

You rely on wage rate comparisons?---Yes, that's one aspect of what we are saying is relevant to deciding any wage increase.

PN1650

In relation to that aspect, how did the union address, in forming its claim, the fact that increasingly such comparisons reflect the differences in productivity performance at different enterprises?---We addressed that by fairly exhaustively, I believe, listing all the productivities that have taken place and are going to take place.

PN1651

What about the fact that the comparisons we make with other organisations - are you comparing apples with apples do you think - like with like?---Absolutely, here we have got people carrying out similar functions in Laurie Gardiner's words, you are the operations commander, federal law enforcement officers, yes.

PN1652

But with different roles, they have different roles don't they?---Yes, for sure.

PN1653

MS MOUNTFORD: Your Honour, I think Mr McDevitt is now being cross-examined on the CPSU submission rather than on his statement.

PN1654

MUNRO J: What do you say, Mr O'Brien, the line of questioning is objected to?

PN1655

MR O'BRIEN: Well I say that the evidence is directly relevant. What's in the CPSU submission and the evidence that Mr McDevitt has given, is inextricably inter-related.

PN1656

MUNRO J: Mr McDevitt's evidence didn't touch at all upon on the basis of the claim, does it? I have to say for some time I have been a bit puzzled - if we are going to have - and I notice some of the evidence from your witness really goes into submissions rather than what is normally the subject of evidence. If you are going to have cross-examination directed to establishing points about submissions, then, we could be here nearly as long as we have already occupied in getting to this point. My disposition would be that if you have got points to make about comparative wage justice use and the like, the validity of comparisons - this witness hasn't offered any evidence about the validity of comparisons. The union's relying upon evidential material as far as I can see, if it has got much at all, I thought there was one page or so of an attachment. My disposition would be to limit cross-examination about submissions.

PN1657

I would qualify that, you have gone through the submission in respect of what by extension is an indication of the union of 170MX5, the ground of reasonable conduct, so, presumably the material in Mr McDevitt's statement about stoppages and retaliatory action went to that heading, so, it was evidence, and it was relevant to a consideration, but, I think the basis on which the union puts the claim as to merit seems to me to be fairly long though for cross-examination given that the witness hasn't himself gone into most of those points as far as I understand it.

PN1658

MR O'BRIEN: Yes, I take your point.

PN1659

MUNRO J: If there is other material that you want to get where it is within his knowledge, but his belief about those matters and his understanding of the changes in wage fixing guidelines is to put it bluntly, as far as I can see, neither here nor there. He could be right, or he could be wrong or he can be utterly ignorant, but if he knows something about the factual kind or the specific points then of course you could cross-examine on those or make your own case through him.

PN1660

MR O'BRIEN: Indeed, my interest does go to his role as having been involved in the negotiations and the failed bargaining for a considerable time and having been an influential representative on the union's side and in that sense there is very direct correlation of conduct which I think is a particularly pertinent - - -

PN1661

MUNRO J: Was there an assertion by APS that the union's conduct was unreasonable?

PN1662

MR O'BRIEN: Yes, there has been, your Honour, and it goes to the role of delegates and the extent to which there is a perceived lack of, if you like, realistic appreciation or effective representation in terms of advising, fulling informing members of the consequences of the approach that the union has taken and there is recent evidence in terms of omissions and changes to the draft award for example, that the union is now having difficulty dealing with the path it has chosen.

PN1663

MUNRO: It seems to me that if you want to make your case specifically by questions to the witness about something that is relevant, that is within his knowledge, then put the case that way, but not by going to CPSUs submissions and rambling around looking for claims that might be better made in submission.

PN1664

MR O'BRIEN: On that basis, your Honour, I will conclude my cross-examination at this point. I have flagged - we may need to call him again, but certainly we will take your considerations into account.

PN1665

MUNRO J: As soon as you are in that position, perhaps you might let Ms Mountford and Mr McDevitt know so that the re-examination can be undertaken.

PN1666

MR O'BRIEN: Thank you, your Honour, I have no more questions for the witness.

PN1667

MUNRO J: I think on that basis it is common ground, isn't it Mr McDevitt that you will stand aside from the witness box, but you may be required for continuation of cross examination and you will be required as I understand it from Ms Mountford's viewpoint for re-examination. Is that likely to be long Ms Mountford? Having regard to the qualified way in which Mr O'Brien put the requirement for further cross-examination, it may be that you could get examination out of the way. The reason I ruled, or we ruled, I think, in favour of allowing the examination to be later is that Mr O'Brien may not be able to resist the temptation to re-visit matters that are more properly dealt with in re-examination if you raise them, if he has a further go at cross-examination. But if you want to dispose of Mr McDevitt then I suppose you can.

PN1668

MR O'BRIEN: Perhaps I could indicate, just to assist in this regard, your Honour, that there are some matters with which I want to deal through Mr McDevitt that are directly related to his evidence, so in that sense that might inform the question you've put to Ms Mountford - - -

PN1669

MUNRO J: Perhaps we will just leave it as it was, that Mr McDevitt comes back when required for re-examination.

PN1670

MS MOUNTFORD: Your Honour, I believe that would be appropriate, thank you.

PN1671

MUNRO J: Very well. Thank you, Mr McDevitt.

<THE WITNESS WITHDREW [11.06am]

PN1672

MS MOUNTFORD: Your Honour, I would now like to call Miss Janet Watson.

<JANET RUBY WATSON, SWORN [11.07am]

<EXAMINATION-IN-CHIEF BY MS MOUNTFORD

PN1673

MUNRO J: Perhaps for the purposes of the record, Ms Watson, you could repeat your name and address?---Janet Ruby Watson, Unit 3, 51 Karinya Street, Queanbeyan, New South Wales, 2627.

PN1674

MS MOUNTFORD: Ms Watson, is this a copy of the statement you have made? Is this a correct copy?---Yes.

PN1675

On that basis I hereby hand up signed copies of that statement.

PN1676

MUNRO J: That can be exhibit CPSU7, the statement of Janet Watson.

EXHIBIT #CPSU7 STATEMENT OF JANET RUBY WATSON

PN1677

MS MOUNTFORD: Ms Watson, could you please outline to the Commission the nature of your work and your role as a Senior Protective Service Officer at Parliament House?---I work at Parliament House as a Senior Protective Service Officer, I'm a Duty Operations Manager. I'm responsible for the control of the shift. My immediate supervisor is the Assistant Inspector and the Superintendent who is in charge of the station. Out of hours I'm responsible for managing incidents at Parliament House and relaying any information that needs to go to the Duty Officer or the client or both. I'm - whilst I've been in the APS I've done a number of things, I'm a firearms instructor and have been for the past three years. Also in the APS I was on the Sydney Airport Implementation Team where I assisted with the recruitment of a number of staff and I also formulated rosters for Sydney Airport.

PN1678

Ms Watson, it would be useful for you to outline given that you do have a responsibility for organising and arranging rosters at Parliament House to perhaps give examples of the work and how these rosters work and how eight hour shift workers perhaps interact with 12 hour shift workers and this will later go to explaining other points that will be made in Ms Watson's witness statement later on?---At Parliament House we - because of the service hours that we have there we have more people required from 7 am to 11 pm than we do from 11 pm to 7 am and the difference is three officers, sorry two officers during the week and three officers on weekends. So at one stage the roster used to be that everybody worked the same roster every four weeks, so you had the same number of staff on at night time as what you had during the day. Due to changes in service hours and what's happened at various different stations around the APS the rosters needed to change because we had too many people rostered at night. So to accommodate that we have a number of staff that worked Monday to Friday and they work either an eight hour day shift or a eight hour afternoon shift. We have people who work an eight hour rotating roster which is a full week 24 hour roster; we have staff who work a 12 hour 24 hour roster as well and they work the same number - - -

PN1679

MUNRO J: A 12 hour 24 hour, what do you mean?---It's a 12 hour shift but it's a 24 hour coverage.

PN1680

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Over seven days or over five days?---Over seven days.

PN1681

MS MOUNTFORD: Your Honour, it might assist the Commission if Ms Watson actually spoke to a copy of these rosters and you were able to follow. It's not to use this as a springboard but make it easier to understand something - - -

PN1682

MUNRO J: Perhaps - go ahead, we show her a copy, I think - you are proposing to tender it, are you? Get her to identify it and then - - -

PN1683

MS MOUNTFORD: Yes, your Honour. Essentially the Commission should understand that in paragraph 4 of Ms Watson's statement she makes the point that shift roster adjustments such as averaging eight hour shift penalties and moves to 12 hour shift penalties are part of some of the efficiency improvements that she has witnessed. However, it is important that people understand initially - the Commission understands initially - how these rosters make that happen.

PN1684

MUNRO J: Perhaps get her to identify what it is that you have just passed up.

PN1685

MS MOUNTFORD: Ms Watson, if you could explain to the Commission?---This is various different rosters from different stations in the ACT, these are not actually current working rosters but were just proposals but they reflect basically what the staff work at the different stations. Some of them work a 12 hour roster so you will see that each four weeks the roster begins again and it's the same cycle up to a certain point like on page 1, lines 1 through to 8, are a 12 hour rotation roster and then from 9 through to 16 is an eight hour rotation roster. If you work shifts, you obviously work less days. If you work eight hour shifts, you work more days so an eight hour shift rostered incorporates seven days in a row, seven afternoons in a row, and seven nights in a row, with days off in between. At Parliament House, we used to work an eight hour roster. Everybody used to work an eight hour rotation roster and there was a proposal put that the staff wanted to work a twelve hour roster because it meant they get more whole days off with their families. We approached APS to trial a twelve hour roster. The only way they would allow us to do that was to average out our eight hour shift penalties. On an eight hour shift, for day shift you get normal time. For an afternoon you get fifteen per cent, and for a night shift you get fifteen per cent, with the exclusion of nine officers who transferred over from the AFP and retained some conditions. They get 22.5 per cent for night shifts. So, there was an averaging of the eight hour shifts penalties to allow us to do the twelve hour roster. Normally, on a twelve hour roster you would get fifteen per cent for day shift and for night shift because of the length of the shift. The staff at Parliament House came under some, I guess, flak from other stations because they actually agreed to average their eight hour shift penalties in order to do the twelve hour shifts they felt that strongly about doing it. It was for the trial period which has continued now for some two years.

PN1686

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Did I understand you to say this is not an actual roster but a proposed roster?---It's an example of the whole rosters are. We had a proposal to centralise Australian Capital Territory's rostering. Because the Australian Capital Territory is such a small area and the number of stations that are there, at one stage all the rosters were done from a central point. Then the staff used that roster to staff all the stations. We then went to decentralised rostering so each station was responsible for their own staff and their own particular roster for that station. So staff then didn't become as mobile between stations. This was a proposal to reconnect, part of the proposal to reconnect, the centralised rostering.

PN1687

MS MOUNTFORD: And it is important to understand that the productivities describing therefore in paragraph 4 in terms of being very clear as to how those productivities arise, both in terms of staff mobility between stations and also through reduced penalty costs. The idea of giving you a document was to give you a bit of a working example of how some of these arrangements can look.

PN1688

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Sorry to be a little slow but I wanted to be clear in my own mind. Is this actual roster operating?---No. The rotation is the same for every four weeks of the roster. So at Government House for example, they don't do the twelve hour component. They are all on eight hour shifts at the moment. This was a proposal but the eight hour shift part of this roster is what they currently work. With the exception that, because a station has the staffing level to cover the service hours and then needs an extra staffing level to cover leave and extraneous duties. There is more staff at the station. If nobody takes leave then they have got too many people so what they do then is, staff are listed as being spare. So if they are spare at Government House, for example, and Parliament House is short one person, the person from Government House goes to Parliament House.

PN1689

I was just wanting to understand what the status of the document is we are looking at?---It was the only copy of a roster that I had with me to show you how the eight hour rotation works and how the twelve hour rotation works.

PN1690

MUNRO J: This was an actual roster in August last year presumably?---This roster is not in operation.

PN1691

Was it in operation in the dates I see are from 14 to 28 August, was that last year?---That was the date that was on the proposal.

PN1692

So was it then, in August last year, was it a proposed roster or an actual roster?---I'm not sure of the actual date that the proposal went in but it would have been discussed around that time.

PN1693

SENIOR DEPUTY PRESIDENT CARTWRIGHT: I guess my difficulty is, was it a proposal for change from the established roster?---Yes, but the rotation of the roster is basically the same.

PN1694

I understand. Has it been implemented?---No.

PN1695

I now understand what the document is?---The difficulty in implementing the centralised rostering was that we needed staff to manage the roster and staff to distribute them throughout the stations and that meant perhaps four extra people needed to be employed or found somewhere to do that function. That was the difficulty was the cost.

PN1696

MUNRO J: I should mark on CPSU8, an illustrative roster, a proposed roster illustrating eight and twelve hour shifts in operation at Canberra. That's CPSU8. Can I just go back to the terms of it? The reference to stations, and this is probably covered elsewhere, how many stations does this apply to? Is that a reference to a distinct place where APS staff operate from or are there a number of stations in the Australian Capital Territory?---There are a number of stations in the Australian Capital Territory. A station would be Parliament House.

PN1697

I'm just looking here on the first page. Are there two stations for Government House, PSO 1 and 2, or is that one station?---Government House is a station or official establishment of a station.

PN1698

It's a station and the PMs suite is a station in addition to Parliament House or is it part of Parliament House?---The PMs suite is part of Parliament House station.

PN1699

So Parliament House is just one complete station?---Yes. Each different locality with a function performed is generally a station.

PN1700

Yes. Well going back to CPSU(8), the eight hour arrangement that you described shows I think in some instances from recollection it is those below row 8, row 9 and on. Those are I think the first one is 7am to 3pm so those are all day shifts?---Yes.

PN1701

Is there any additional penalty loading or would there to your knowledge be any additional penalty loading in that instance for Saturday or Sunday duty?---Saturday is a 50 per cent penalty rate. Sunday is 100 per cent penalty rate and a public holiday is 150 per cent penalty rate.

PN1702

SENIOR DEPUTY PRESIDENT CARTWRIGHT: And that's in addition to the penalty rate for shift operation?---No. If you are on afternoon shift and you work on the weekend - - -

PN1703

MUNRO J: I'll just take your Honour's question in relation to Irvine, those are all day shifts. Is there a penalty loading for being on shift for that?---Only for Saturday and Sunday.

PN1704

So the only additional loading for the five day operation including weekends are the actual weekend or public holiday loading when the shift roster falls on it. If we go to, Daniel is a good illustration on the next line, also an eight hour shift. The first two are day shifts for two days off then there is a, what I would class as an afternoon shift. What loadings would they attract on your understanding?---For Friday?

PN1705

Well, for the whole of it. The first two, no loading?---Yes.

PN1706

So, the first two days. Then the Friday, Saturday, Sunday all afternoon shifts terminating at 11pm. How are the loadings arranged for those?---On a weekday they get 15 per cent.

PN1707

So 15 per cent for the Friday?---Yes.

PN1708

For the Saturday the same?---50 per cent.

PN1709

50 per cent without being loaded to the evening shift or 50 per cent loaded on the evening shift?---Just 50 per cent.

PN1710

50 per cent. I see and 100 per cent for the Sunday and 150 for the public holiday?---Yes.

PN1711

And the same arrangement applies for night shift?---Yes.

PN1712

The corresponding changes for night shift is at what, 15 per cent or so, or higher?---15 per cent for people who joined from 20 October 1984 and anybody who transferred over from the AFP under division 9 of the Public Service Act get 22.5 per cent for night shift.

PN1713

22.5 per cent for night shift only, and that night shift 22.5 per cent in the case of LUM, what is that?---That's leave unmanned.

PN1714

I think there is an instance in Christie. Well let us assume for that purpose the leave unmanned is on the Sunday, the 22 per cent would be replaced by the 100 per cent loading. It's not additional to the Sunday duties?---You only attract one penalty and that's the highest penalty rate that is applicable for that shift. So if a night shift, for example, starts on a Sunday at 11 o'clock Sunday night you would get, a 9F person would get 22.5 per cent for the first hour and then that penalty is reduced to 15 per cent for the Monday's part of the shift.

PN1715

I'm sorry, it starts on the Sunday?---If it starts Sunday night, at 11 o'clock Sunday night, they attract a higher penalty for the first hour until midnight then it goes into Monday's penalties so it is reduced to 15 per cent. Sorry, it would be 100 per cent for the Sunday portion and 15 or 22.5 per cent depending on what is applicable to the person for the Monday part of the shift.

PN1716

So it only applies to the part of the shift that falls within the day to which the penalty attracts?---Yes.

PN1717

It doesn't apply to the whole of the shift?---That's correct. Overtime is a little bit different.

PN1718

Now take us in relation to the twelve hour shift. Are there any material differences if we take it that's a night shift isn't it?---On the Monday that's a day shift. 6.30 in the morning until 6.30 at night.

PN1719

I see. The three days of that is day shift and then the last three days are night shift. Sorry, some Saturday and Sundays are, you call those night shifts do you, the are night shifts. What are the penalty arrangements there?---The award rate for a twelve hour shift, any part of the shift that falls between 6am and 6.30pm is 15 per cent. So in this case for a twelve hour day shift they would get 15 per cent. For a twelve hour night shift they would get 15 per cent.

PN1720

15 per cent for the night shift as well?---Yes.

PN1721

And for the Saturday night shift, what loading?---50 per cent for the portion that falls on the Saturday.

PN1722

So the fifteen per cent for a night shift would be displaced on the Saturday by 50, 5-0, per cent?---Yes.

PN1723

And on the Sunday by 100 per cent?---Yes.

PN1724

And does that loading arrangement apply in the same way to the twelve hour shifts that if there is a, I suppose I could call it, there is an instance there. The Sunday starts at 6.30pm and goes through to Monday 6.30am, is that all at 100 per cent or the first up until midnight at 100 per cent and the rest at 15 per cent? What is the arrangement?---The arrangement is whatever part falls on a Sunday is paid at 100 per cent and whatever part of the shift falls on Monday is paid at 15 per cent.

PN1725

Thank you?---You can only attract one penalty at any one time and it is the highest penalty applicable to that day.

PN1726

Yes. Now, the attraction of the additional week's leave, does that apply to all officers or only to those who regularly work weekends or under some six day, seven day working arrangement?---They have to work I think it is ten Sundays.

PN1727

So anyone who works ten Sundays has the additional week's leave attraction?---Yes.

PN1728

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Anyone who works or anyone rostered for the ten Sundays?---I believe anyone that works so that if you do an overtime shift that starts on a Sunday then that would count towards it. I'm not sure but that's what I believe.

PN1729

It's Sundays only not Saturdays?---Sundays yes.

PN1730

I understand, thank you?---So it doesn't matter how many more Sundays that you work, you accrue half a day leave for every Sunday that you work.

PN1731

A shift falling fully within Sunday or part of a shift?---I believe any part of a shift that falls on a Sunday.

PN1732

HIS HONOUR: Thank you, Ms Watson.

<CROSS-EXAMINATION BY MS MOUNTFORD

PN1733

MS MOUNTFORD: Ms Watson, in paragraph 5 you say that the effect of what you describe as a wage freeze since October 1996 has been to adversely affect staff morale and encourage officers to work additional hours to achieve a decent income. I want you to describe to the Commission how you understand or came to the conclusion that staff morale was severely affected by lack of a wage rise?---One of the things that you see is increases, the attitude of the staff.

PN1734

What do you mean by attitude when you say that? Attitude to what sort of things?---Attitude to how willing they are to do a good job. I mean they still do what's required but they don't go the extra, you know do the extra little things that quite often the client is happy with but doesn't necessarily require. They walk around the station and they don't have anything nice to say about APS or the work that they are doing.

PN1735

HIS HONOUR: Can I just take you back to paragraph 4, Ms Watson? You state there that over the past four years you have witnessed changes in shift roster adjustments such as averaging eight hour shift penalties to move to a twelve hour shift roster. When did that happen do you know?---I believe it would be three years ago.

PN1736

And until then you'd been on eight hour rosters?---Yes.

PN1737

And I think your evidence, although I didn't note it, you explained how the averaging process occurred over that period from the arrangement for eight hours to twelve hours so there was an average rate struck for the twelve hour arrangement?---Yes.

PN1738

Yes thank you. I'm sorry, did that happen nationally or was that only in Canberra?---That was only at Parliament House.

PN1739

So it's only where twelve hour arrangements have been necessary at Parliament House that that occurred? Are there other stations where the same arrangement would have been arrived at or was that particular to Parliament House?---There is one other station that has elected to do twelve hour shifts at the 10 per cent penalty and there is, I believe, supervisors who control their operators that are classified as defence officers, in Canberra.

PN1740

I see, and that is based upon local agreement is it, or certified agreement?---Just local agreement at the station between the staff and management.

PN1741

I might also point out that there is people for example who are on 12 hour shifts before that time, that attract a 15 per cent penalty for the 12 hour shift, and that was an arrangement that was made at that time, that's what the award condition is, that the staff at Parliament House and at Russell Hill felt strongly enough about the quality of life that they would get from doing a 12 hour shift, that they agreed to average out their eight hour shift penalties to move to a 12 hour roster.

PN1742

When you said 10 per cent, I just can't pick up the figure, which shifts attract the 10 per cent penalty? Do you just say that there were some that attracted only a 10 per cent loading?---Yes, that's the 12 hour shifts, during the week, but that was because day shift doesn't attract a penalty on an eight hour shift. Afternoon shift attracts a 15 per cent penalty, and night shift attracts a 15 per cent penalty. So if you average out the weekdays of day shift, afternoon shift and night shift, if you are just doing two shifts a day, and a night shift, then the average penalty is 10 per cent.

PN1743

Over the whole week? Over the whole period?---Yes.

PN1744

I think I understand?---With the exception of weekend penalties, remain the same.

PN1745

How was that arrangement given official effect? Is there a certified agreement, AWA to that effect? How is it done?---The union consults the CPSU and other union representatives, consulted with the officer in charge of the station and the award actually allows you to average out penalties.

PN1746

It's a sort of an agreement in effect, what the award was called, an agreement?---An agreement, it was an agreement that was signed by CPSU.

PN1747

I see thank you.

PN1748

SDP CARTWRIGHT: Sorry, Ms Watson, I'm running a little behind my colleague on the bench. When we went through the 12 hour shift operation before, you said it was a 15 per cent loading for both day and night shift on a 12 hour shift?---Yes.

PN1749

How do we get to the 10 per cent, I'm sorry, I missed that?---In order to move to a 12 hour roster, it is required that it be cost neutral. So if we move to 12 hour shifts and attracted a 15 per cent penalty for both day shift and night shift, then it would have cost the APS an extra, extra penalty.

PN1750

So what you saying is that under normal circumstances, it would have been 15 for both day and night?---Yes.

PN1751

However, under the arrangement you instituted at Parliament House, you agreed to average 10 per cent?---Yes, otherwise we weren't allowed to do 12 hour shifts.

PN1752

I understand, and that was what was agreed in the facilitative agreement?---Yes.

PN1753

Thank you. Right, we are all up to the same speed now.

PN1754

MS MOUNTFORD: In paragraph 5 you go on to say that shift workers and the additional hours of work only compounds the negative consequences on family life and lifestyle and we started to touch on this, but I would appreciate it if you could outline to the Commission what was the evidence that made you write and say that there are negative consequences on family and lifestyle?---I've seen people who now work overtime, who never used to work overtime. There are certain people within the APS who are happy to do overtime and earn extra money. There are other people who just want to do their rostered hours and get their take-home pay. Over the past, especially over the last two years I suppose, I have seen people who would ordinarily just have done their day shift and attracted their basic salary and not done any overtime. I now see those people volunteering to do overtime and volunteering to be rostered overtime, which is something they never did before, and as a result of that, they spend a lot less time with their families and a lot less leisure time, I guess.

PN1755

In paragraph 6, you talk about your involvement in national negotiations, and there were examples of management delays and frustrations. I was wondering if you could outline more precisely what were those examples and how you felt about them, the ones that you fairly obliquely refer to in paragraph 6?---During the negotiations, we spoke about various different things and in the negotiations a lot of the issues that we talked about in negotiations was centred around the core issues, being RDOs. The difference between APSs position and the CPSUs position was that we knew there was a number of staff who would give up their RDOs. We also knew there was a number of staff who wanted to retain their RDOs, and they knew that the increase in their salary would not be as much if they retained their RDOs, and in order to accommodate all of our members, we then put to APS that officers should have a choice between whether they retain their RDOs and whether they gave them up, and the difference in the increase would be proportionate for both those, because one would be working a 40 hour week, and another would be working a 38 hour week. Although everybody works, we all work a 40 hour week, but two hours goes to accrual of RDOs, every fortnight. So another issue that came up was, we had a 21 per cent offer, which at first glance for a 42 hour week, 21 per cent looks pretty good, and after a few sums, it didn't take long to work out that 21 per cent for a 42 hour week was actually a less hour rate than 40 hours for 15 per cent increase. So, staff didn't want to work a 42 hour week anyway. We knew that, we put that to them during the industrial action, because it had been mentioned as a talking point, and we put it to staff and they said, "We don't want to work a 42 hour week". That was basically across the whole of the staff, so some people might have thought that we were premature in rejecting the 42 hour week, for a 21 per cent offer, but we knew that staff didn't want to work a 42 hour week, no matter what the quantum was for that.

PN1756

Ms Watson, you said that we knew that staff didn't want to work a 42 hour week. How did you know that, how did you find that out, and when you say, does that comment just relate to your experiences of what staff were saying in Parliament House, or does your knowledge extend beyond Parliament House?---No, we had a number of stop work meetings in Canberra, where we discussed a lot of the issues that were happening within the negotiation at that time. We also had CPSU delegate hookups at various times throughout the industrial action, to discuss different issues and bulletins went out to members so that they could discuss the issues. They then talked to their delegates, the delegates would then relate to the national hookup of delegates, what the feeling was, you know. We staffed that station, and they would, the delegates talk to as many staff as they can. Sometimes they don't get to everybody because they're on leave, but generally they talk to everyone at the station. So it wasn't just at ACT, it was at various stations around Australia.

PN1757

You work at a station where there are a significant number of staff that are not covered by the CPSU, are you aware of whether any of those other staff actually considered the offers of around 20 per cent for a 42 hour week?---Yes, they did. The CPSU has approximately half the membership, half the staff as members at Parliament House. The TWU has the other union membership at Parliament House. They, during, before our termination of the bargaining period, APS discussed with the TWU, the 21 per cent offer. So it wasn't something that was new to the officers. It was something that was circulated around all the stations in the ACT and APS was actually viewing it as the APS station agreement, and so the 21 per cent offer had been discussed at length by staff at all stations around ACT, I guess when it came up during conciliation we knew what the feeling was already to that offer.

PN1758

You've talked about coming to an appreciation that the 21 per cent for a 42 hour week was a lower hourly rate than that of 15 per cent for a 40 hour week. How did you come to that view?---I did the sums.

PN1759

Is that something unique to you or is that something that is common to most of your other colleagues in terms of their assessment of their actual salary package?---Most of them don't do the sums, they rely on somebody else to do the sums and circulate it around, but I guess it's a role that I've taken on during the negotiations was to work out what impact different things were going to have on things like their hourly rate. And PSOs are concerned about their hourly rate because it affects everything. When they work their hourly rate is what affects basically everything they earn, so if they don't see an increase in their hourly rate but a reduction in, for example, the access to emergency duty or the reduction in the percentage rate for overtime, then if they're on the same hourly rate they see that at the end of the year they're going to be earning less for working the same hours this year as what they did last year.

PN1760

That leads me into the issues you raise in paragraph 7 where you say that the issues in dispute during the bargaining periods have centred on wages, RDOs, hours of work, emergency duties, station agreements, overtime rights and those covered by the agreement. I would just like you to clarify why, from your perspective, these were key issues for members?---In regard to emergency duty, a high percentage of the overtime at Parliament House is worked at emergency duty, and that's not necessarily because of 12 hour shifts. I would say it has more to do with the practices of filling a shift than it does with actually the 12 hour shift, so because people on 12 hour shifts for example on a weekend off get four days off emergency duty, if they're called after they finish their last normal shift and before they start their next normal rostered shift then it's paid at emergency duty rates and that's what's in the current award. So they might get two days notice that they're required to work overtime which is paid at emergency duty, although it may not be considered an actual emergency. That's one of the reasons why I guess the CPSU thought that it was reasonable to limit the access to emergency duty as a productivity gain, but there are some circumstances where emergency duty still needs to be - I would consider still needs to be paid because people might get rung up at 6.00 o'clock in the morning and asked to come to work at 7.00 o'clock, so whatever they had planned for that day is now gone and they're at work for 8 or 12 hours or whatever. So it's a compensation for the short notice that they're required to work.

PN1761

MUNRO J: What's the penalty rate at present?---For emergency duty?

PN1762

Yes?---They get paid double time for the shift for the hours that they work, they also get paid reasonable travelling time to and from their home, so for example that would be half hour each way so for a 12 hour shift they would get paid 13 hours at double time. They're also entitled to a motor vehicle allowance as well which some people claim and some people don't. It's an entitlement that some people just don't claim.

PN1763

SENIOR DEPUTY PRESIDENT CARTWRIGHT: How is emergency duty on Sundays paid?---Same. Emergency duty is all paid at double time.

PN1764

But you're already getting double time on Sunday. Sorry, I'm with you?---This isn't overtime.

PN1765

I understand, yes?---So it's cheaper for the APS to do emergency duty on a Sunday than it is during the week because it doesn't really attract any extra cost, because they would be paying somebody double time anyway for that shift if they were on ordinary rates.

PN1766

MUNRO J: That's to say if you're brought in on a Friday it's double time emergency duty, if you're brought in on a Sunday it's double time also?---Yes. An example of emergency duty, I did some figures for - had a look at the overtime at Parliament House from July 2000 to January 2001 and at Parliament House we have a lot of overtime compared to some other stations. There are a number of reasons for that, long term sick leave, temporary transfer, sometimes the station isn't fully staffed. The staffing level there is 67 and I think at the moment we have something like 63 staff so there's four extra staff that are not available for backfill for extraneous duties so that increases the overtime available to the staff that are already there. In the six months there was over 9000 hours overtime. 42 per cent of that was emergency duty.

PN1767

That's for 63 staff you say?---There's currently 63 staff but the station manning level is actually 67 if it's fully staffed.

PN1768

You say over 9000 overtime, is that the exact figure?---9409.

PN1769

9409, that's actual hours?---Yes.

PN1770

Of which 42 per cent was on emergency duty arrangements?---Yeah, so that would be 3952 hours in emergency duty. So limiting the access to emergency duty would be a saving of around 1500 hours pay for that six month period for the APS.

PN1771

MS MOUNTFORD: Ms Watson, you talked about the practice of the current rosters. Do you have a view about that practice and arrangement that's in place?---About the job line roster?

PN1772

Not the job line, the roster and its impact and the use of emergency duty as it operates now at Parliament House. You talked about that as a practice and I was just seeking a further elaboration of what your view of that practice is?---The practice at the moment is a shift for tomorrow, a vacant shift for tomorrow would be filled today, that if you have got people that are working today that are off tomorrow they can do that on normal overtime rates. But if nobody that's working today wants to work tomorrow then you would have to instigate emergency duty by calling someone else from days off. So if the overtime is filled, if a vacant shift is filled a couple of days in advance, two or three days in advance, then it reduces the amount of emergency duty that actually happens. Emergency duty should only happen when, for example, somebody takes sick leave at short notice. So some of the work practices at the stations could actually be better managed to reduce things like emergency duty. But another difficulty is that if there is another station that has a person who is spare, they don't have a vacancy for them to fill, then they are redirected to Parliament House which then would mean that you'd have to cancel the overtime. So that's where your centralised rostering was, I guess, easier to manage because you knew where you had spare staff at stations and where you didn't because it was all on the same roster, and it was all managed by the same person. So you could tell today whether you had three shifts available at Parliament House or whether somebody from Government House could be moved for example to Parliament House to fill those spots.

PN1773

MUNRO J: Was centralised rostering persisted with or not introduced?---It was in the ACT for a number of years and then they went to decentralised rostering so that each station did their own rostering and were responsible for the allocation of their own staff. And that means that the supervisors at each station have to constantly be in contact with supervisors at other stations to see whether they have any extra staff that they can borrow. Whereas the centralised rostering was all done from one point and by just looking at the sheet you could tell whether you had spares or whether you were going to have vacant shifts available. Sorry, did that answer your question?

PN1774

MS MOUNTFORD: Thank you. You have I think covered a number of questions in that dialogue. In paragraph 11 you go on to say that on the issue of station agreements there was strong resistance to station agreements which were not underpinned by global agreement. Many members in Canberra you go on to say signed a petition supporting a global agreement and rejecting station agreements not underpinned a global agreement. Why was this the case? What was the concern for people in Canberra in a large station about that?---One of the concerns I suppose was they thought that APS was trying to divide and conquer so that they could put pressure on individuals on smaller stations to give up there current entitlements in order to get a wage increase. They didn't trust APS management due to the length of the negotiations that I guess that had happened throughout the whole process. Not only that, but they thought, they didn't trust themselves enough to make sure that their current entitlements were all in the agreement. For example if you have an agreement at Defence offices it might not have any remote locality entitlements. But if a person who is on a Defence station agreement then goes through what they call a temporary transfer they didn't know what they were going to be entitled to, whether they were actually going to get the remote locality conditions or whether they just stayed with their station conditions. A lot of the station agreements, I believe the station agreements that are in force don't actually have conditions that apply outside this station. Given the mobility of staff within the APS, and people often go on temporary transfer to places like Woomera. In Canberra we had people that went to Sydney airport for the Olympics or helped at DPU in Sydney for the Olympics and went to Melbourne when the restructure was happening down there are at Melbourne airport. They weren't confident that they could make sure themselves that all their conditions were going to be retained in the station agreement. If a global agreement was negotiated they knew that what they would be entitled to because it would all be in a global agreement. So no matter what station they were at they knew that they were on the same conditions and mobility wouldn't be a problem for them.

PN1775

In paragraph 13 you raised the issue of shift rosters and that it was important that members are able to predict their days on duty. You then go on to talk about a drop line roster that has been promoted at many stations recently and how it has a detrimental effect on members ability to know when they're rostered on. I think it would be useful to explain what is a drop line roster and how does that work. And how does that then have an impact on the health of individuals working in that system?---A drop line roster is basically the roster that I've given you, that's a drop line roster. It is not necessarily the drop line roster that causes the problem, it's the way that it's formulated.

PN1776

MUNRO J: What is the drop and what is the line refer to?---The line is like, Brown is on line 1, Webber would be on line 2. So the week after this, on 21/8 Brown would actually be on line 2. So they just drop a line every week to go through the roster. That in itself is not a problem.

PN1777

Is that confined to, to take that page 1 example, lines 1 through to 9 which are the day shift ones or does it go right down to the 12 hour shift rosters too?---In this roster example they would move through the whole of the roster, so they would move down to line 16 and then go back up to line - - -

PN1778

I see, so most of the staff work both 8 hour shift and 12 hours where those are in operation?---No, they work one or the other normally.

PN1779

One or the other. I am sorry, in this instance they are all 8 hours, aren't they?---No, in this example some of them are 12 hour shifts.

PN1780

Are they?---Yes. The first half is a 12 hour shift, the second half is an 8 hour roster.

PN1781

So in that instance they would work both the 8 hour and 12 hour arrangements at Government House?---Yes.

PN1782

Thank you. Sorry, I interrupted you to ask you what was the drop line and you were answering Ms Mountford's question which was?

PN1783

MS MOUNTFORD: To go on and have Ms Watson explain the negative impact that has on people working that system; you raised that in paragraph 13?---The drop line roster in itself is predictable up to a certain point. If, for example, you look on page 4 there is a shaded area. The indicates to the staff that they are spare so they are excess on those particular days, on that part of the roster. So when they come to that part of the roster they can go to any station that needs them to work a shift. Now that also means that any one of those shifts could be changed to a different day.

PN1784

So, where for example on line 54 Thursday and Friday they are rostered two day shifts, they are off on a Saturday and then on day shift on Sunday.

PN1785

MUNRO J: I'm sorry, I'm on the wrong page, aren't I?---Page 4, on line 54 so if there's a vacant shift available on the Monday then they would move one of their day shifts to the Monday instead of having Thursday, Friday and Sunday, that's where the difficulty comes in because when the roster comes out and shift can change any time after the roster comes out normally. So for example they might have planned something for the Saturday but if somebody is required on Saturday but not required on Sunday then they would move their shift from Sunday to Saturday. So, you know, people might organise to go and watch their kids play football or something on a Saturday and all of a sudden their shift has changed to Saturday because that's when they're required and not required on Sunday. That's when the drop line roster starts to affect people's lifestyles because they know in lines 54 to 65 what's reflected on the roster is not necessarily what's going to happen.

PN1786

Why is that again?---If somebody for example took leave on a Monday after the roster comes out then they need to move, these people are all excess so they may need to move somebody from, move their rostered working day to a different day.

PN1787

I see, so when you're in lines 54 through to 65 is that also backfill?---Yes.

PN1788

So by that time you know that you're in reserve and likely to be brought in to fill in some other vacancy arising higher in the lines, is that what it means?---On a different day, it can also mean that instead of doing a day shift you might be rostered for a night shift.

PN1789

So the shaded people are effectively the relief?---Yes.

PN1790

Sorry, the shaded lines are effectively the relief lines that might be varied as necessary?---Yes so that's when it becomes a loss because they can't plan anything for those days because they don't know whether they're going to be working on the days that are reflected on the roster or whether that's going to change and people often, the requirement at the moment is that the leave application is to be submitted at least seven days in advance. The roster comes out normally two and a half to three weeks in advance so if after the roster comes out someone puts in a leave application then someone who is on the backfill needs to fill in and if there's nobody on that particular line then they need to move somebody from another day to that day.

PN1791

SENIOR DEPUTY PRESIDENT CARTWRIGHT: It's sort of like being rostered for emergency duty, isn't it?---Yes, I mean it doesn't affect me as a supervisor because I'm always required there and if I'm on leave somebody, an PSO2 or another supervisor backfills me so my shift I can predict what I'm working next Christmas or what I'm not working next Christmas. If they're on this part of the roster then they have no idea what they're going to be rostered.

PN1792

MS MOUNTFORD: Could you outline what regard is then had for when selecting people about whether they are in particular sets of working hours, either afternoon, evening, day, is there any thought as to the impact of changing people from a different set of hours in the day in terms of that cycle on their physical wellbeing?---I guess I can't say what thought is put into changing people's shifts because that's not my role.

PN1793

Just an impression about what you think happens?---OH&S issues generally need to be taken into account so if you need to have a night shift for example on an eight hour shift, a night shift followed by a day shift followed by an afternoon shift so in some circumstances because our night shift on a Sunday actually starts Saturday night so the shift that's rostered for Sunday because the majority of the shift falls on Sunday, it's Sunday shift but it actually starts Saturday night so if you do an afternoon on Saturday and rostered on night shift on Sunday you might end up doing 16 hours and I'm not saying that has happened but it could if the roster clerk is not on the ball. We've heard examples where people have done a day shift, an afternoon shift and then a day shift again which means you know their sleeping patterns are here, there and everywhere but that's only while they're on the backfill and it's just unpredictable for them.

PN1794

So, Ms Watson, you are saying that people in this shaded area on page 4 are fairly open to having their shifts changed round?---They're open to it?

PN1795

Yes?---They just know it's going to happen, they don't like it because they like to be able to plan, if they're rostered off from line 61 to 65 on a weekend they might plan something on that weekend and then have that changed. They like to have predicability and when you're a shift worker, and I've been doing shift work for eighteen and a half years, when you're a shift worker you like to have predicability because on an eight hour roster you get one weekend off every four weeks, that weekend is really important. Likewise, you like to be able to plan things during the week. People like to be able to plan things like child care needs to be planned months in advance so that the kids can be booked into child care centres and when the shifts are changed that impacts on their family and their lifestyle and costs as well I guess.

PN1796

Finally Ms Watson I'd like to conclude by taking you to the view that has been advanced that really the CPSU would really prefer to go through an MX arbitration process than get an agreement through direct negotiations with management. Was that your own personal preference?---No, as far as I'm aware everybody that's been involved in negotiations including the APS has always wanted to reach an agreement. The difficulty is that APSs view of what a reasonable offer was different to our members and at every stage during the negotiations we've actually gone back to members and said, do you think this is reasonable and if they say no then we go back to negotiations because if the majority of our members are saying, this is not reasonable, then there's no point in putting that to a vote when we're not going to write it down anyway. So all through the stage we've always wanted an agreement as everyone has. Who wants to spend the money to come to the Commission. It's just the last resort basically.

PN1797

You yourself have been involved in negotiations, when did your involvement in the negotiations start?---From memory I believe my first part in the negotiations was just after the first agreement was voted down I think, I'm not sure that I took part in any negotiations before then.

PN1798

Was there any point in the negotiation process where offers were made that you as a member of that team actually supported and made recommendations in relation to acceptance of any of those offers?---I suppose within certain parameters, like initially nobody wanted to restrict emergency duty because it was an entitlement that they enjoyed and it was just one of the concessions that we thought would benefit the APS and would show some sort of productivity towards getting some sort of wage increase for members and throughout the negotiations we had various different discussions and not everybody in the CPSU has the same view in regard to offers and some of the hook-ups that we were on lasted two to two and a half hours, just discussing issues that members had with different offers.

PN1799

You referred to changing emergency duties in the offers and that particularly as I recall came up in the June negotiations. In respect of that offer what was it you put to the delegates hookup in respect of that offer?---Of emergency duty?

PN1800

And the total of - - -?---I don't recall exactly what I said. Was that the 15 per cent offer?

PN1801

Yes?---In that offer the CPSU proposed 15 per cent for people who went to a 40 hour week who gave up their RDOs so the link between the 40 hour week and RDOs is the 40 hour week you don't accrue RDOs whereas the 38 hour week you accrue RDOs but you still work 40 hours. So, I forget where I was up to.

PN1802

It was in respect as one of the negotiating team who participated in the phone conference, what was the view you conveyed to members and delegates on that hookup about that offer?---In that particular offer had it not included not being paid for being off duty on a public holiday and 4 days training in your own time I felt it would have been an acceptable offer that we could have put to a vote but when we looked at and discussed with delegates that the previous offer, and I believe that was 13 per cent, I'm not exactly sure, the 13 per cent offer did not include not being paid for being off duty on a public holiday and 4 days training in your own time. So if they hadn't been included in the 15 per cent offer then it would have been something that I would have been prepared to put to say let's go with that and let's put it to a vote and it may well have been accepted. But things like being, not getting paid for being off duty on a public holiday: some people probably see that as a rort because you're having a day off and getting paid for it but people that work shiftwork every time a public holiday comes along and they're rostered on they work it. Every time somebody who works Monday to Friday gets a public holiday come along they get paid for it but they don't work it. So when a public holiday comes along for people who are on shiftwork they get a day's pay and they don't work it, the same as Monday to Friday people. So it's not something extra that people on shiftwork get, they don't get the extra 12 public holidays off a year or whatever it is so you know, I guess the alternative to giving people a day's pay is to give them an extra day off if they're rostered off on a public holiday so they get the same days off as everybody else does. And people know that that's why they get paid for being off duty on a public holiday and it's just something else that they see as being taken off shiftworkers that everybody else enjoys.

PN1803

And what was the reaction and feedback that you received in respect of the offer in relation to the 6 per cent for people who kept their RDOs?---Basically that it wasn't enough. For a 6 per cent increase over what effectively I think would have been a 7 year period with the reduction in emergency duty and the reduction in the overtime rate they didn't, and you know, various other different things, they didn't see that it was a fair outcome for them.

PN1804

And how relevant did you believe that was to reject the offer?---You know, each offer is different and is a package and sometimes it's hard to work out what the whole package means and I guess staff who are not used to reading and working out what the whole package means look to delegates to inform them of what the whole package means and the feedback that we get from members is that, you know, not any of the offers that have been put to us are fair to them considering they haven't had a pay rise since 1996 and the longer the process goes on, you know, the more the eye goes up and effectively they have to pay for their houses and go on holidays, and whatever. So at each stage during the negotiations APS might say that the CPSU keep changing their position but the reason for that was because when we went back to staff and gave them offers they said it's not enough. So it's not fair to us. So in that case we then went back to APS and said, well no, it's not an acceptable offer and as I said some of the hookups lasted two and a half hours.

PN1805

Thank you, Ms Watson.

PN1806

MUNRO J: Ms Watson, can I just take you back to the figures you gave based on your calculations of overtime at Parliament House from July last year to January this year of I think you said 9409 hours of overtime with 63 operative staff or 67 total. On my calculation that averages across 63 of about 102 hours overtime per operative person of 63 which is about 4 hours per week. Does that sound about right to you, overtime over the period on average?---Per person?

PN1807

Yes?---Yes, that would - the overtime at Parliament House averages out at about 1500 hours a month and it can be anywhere between 2000 hours a month and 1200 hours a month depending on how many staff we have away.

PN1808

And that 1500 to 2000 is averaged across the 63 or 67 total staff at the time?---Yes.

PN1809

In the last page of your statement there's a correction there where I think you refer to total benefit accrual and you provide a reference to the employer component as having been minus 3000 or so in 1999/2000. How does that come to be a negative figure, is that a matter of the earning rate of the fund? I don't understand how - - -?---There's a number of factors that come into it. If the total benefit accrual which is a total amount you're allowed to have in your superannuation fund is a combination of your accrual benefit and your average salary for superannuation purposes so your multiple benefit increases at a rate very year depending on how much you put into your super fund. So if your salary doesn't increase then your total benefit only increases by your benefit multiple.

PN1810

SENIOR DEPUTY PRESIDENT CARTWRIGHT: So this is a defined benefit fund?---This is PSS, yes.

PN1811

MS MOUNTFORD: So what, are we talking about reasonable benefit levels?

PN1812

MUNRO J: I think you're talking about the maximum benefit level, aren't you, did you say reasonable benefit level?---Yes, but your employer component is - - -

PN1813

You can't accrue more in a fund or you can't have a total lump sum accrual that's more than produced for 6 times or something final total salary, is that what you're referring to?---Yes, well it depends on your benefit multiple so if you put in 10 per cent for example it goes up, the benefit multiple goes up more each year than if you put in 2 per cent. But if your salary doesn't change then the combination of those two figures means that the amount that you're allowed to have in your superannuation fund is less than what it could be. Say for example somebody who hasn't had a pay rise since 1996 their total benefit is not increasing as much as somebody who has an increase in their salary, sorry.

PN1814

I use the question whether it was a defined benefit fund. The fund that you are referring to sounds as though it's an accrual fund that you get out what you or the employer have put in plus what it earned?---Yes. It's a superannuation - Commonwealth Superannuation, PSS.

PN1815

PSS?---So because the total benefit accrual hasn't increased much and the interest rate for that year was reasonably high, then the employer component on my superannuation was a minus sum, minus $3067.88.

PN1816

SENIOR DEPUTY PRESIDENT CARTWRIGHT: But when you talk about benefit multiple, that really says to me that's a defined benefit fund because in an accumulation fund multiples don't have any part?---I don't know enough about whether it's - - -

PN1817

MS MOUNTFORD: PSS, it's a defined benefit fund and it would operate according to reasonable benefit limits which also set the amount earned.

PN1818

SENIOR DEPUTY PRESIDENT CARTWRIGHT: So it's a defined benefit fund where the employer contribution calculated and the employee may also put in varying levels. Is that correct?

PN1819

MS MOUNTFORD: Yes, that's correct. It would be fairly like the TSS I imagine, if that's what you're familiar with.

PN1820

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Yes, which was a defined benefit fund?---There is a total maximum that you're allowed to have in but your benefit multiple actually accrues every year until you get to your maximum benefit multiple, which I think is eight.

PN1821

So that's a defined benefit fund, in my understanding?---Sorry, I - - -

PN1822

COMMISSIONER DEEGAN: And you know this, do you, because it was your statement last year - - -?---Yeah.

PN1823

- - - that the employer contribution was a minus amount?---The employer component, yes, was a minus amount. I mean, there's one guy at Parliament House, for example, who had a minus $10,000 amount on his.

PN1824

Employer contribution?---Employer component.

PN1825

And that's for all those in the Public Sector Superannuation Scheme, the PSS, it doesn't necessarily work in the same way for people in the CSS?---Yes, I'm not sure about that.

PN1826

So you compared the amounts of your minus employer contributions, did you?---Yes, it was just a shock to see a minus amount on it, that was all, and so people started asking How come we've got a minus amount on our employer component on our superannuation?

PN1827

And somebody explained it?---So then started to research it and found that, you know, it's a combination of a lot of things.

PN1828

But it's to do with the fact there's been no salary rise since 1996?---Yes.

PN1829

SENIOR DEPUTY PRESIDENT CARTWRIGHT: But it doesn't mean that anyone took money out?---I don't know what happens to the money. It's a minus amount on my total benefit and you can have a look at my superannuation thing, if you like. I'm happy for you to do that.

PN1830

MUNRO J: I have to say I don't know that it's fair to perhaps you, Ms Watson, I think collectively we're having some difficulty and I'm certainly having some. I find it hard to see how an employer component of an over all accrual could reduce from year to year unless it reduced more or less proportionately as a result of a negative earning rate for the fund or because of some conjuring of superannuation surplus legislation, which I wouldn't have thought would apply to you or to your accumulation where the deemed accrual rate or earning rate which is set on the treasury bond rate sometimes exceeds the actual earning rate of the fund, but if the employer is under an obligation to contribute, unless it's related in some way to average salary, I find it difficult to see how the employer's obligation can drift in the direction of a negative increase if the salary remains constant.

PN1831

MS MOUNTFORD: I think the explanation is in the second last sentence which is if the salary doesn't increase and the total benefit accrual increases at a reduced rate and the member's contribution does not increase, then the employer component becomes a lesser amount, so it's increasing and at a reduced rate.

PN1832

MUNRO J: It's less than it would be if it had increased, that's fairly obvious.

PN1833

MS MOUNTFORD: The rate is reducing I think is how the negative figures occurs.

PN1834

MUNRO J: Yes. I don't know that we'll trouble Ms Watson with it further. One question that had interested the Commission was in relation to salary packaging. Was the presence or absence of scope for employee superannuation contributions by agreement to be salary packaged, which in some instances at least, it's our broad understanding, might possibly result in a before tax or after tax differential, according to whether or not the payment was made on behalf of the employee before tax?

PN1835

It's presumably some of the protected service organisations competing with APS might be able to offer their employees, providing in that respect some competitive advantage which would be perhaps relatively minor compared with what we understand to be the over all level of contribution by APS to superannuation, which one figures puts, I think, at 17.5 per cent. I'm not sure where the source of that comes from.

PN1836

I put that question or I put that concern to you, Ms Mountford, so as that at least both parties are conscious that it's a matter that may interest us and if there is any material on it that can deal with it definitely in relation to salary packaging which I think is agreed, then you can enlighten us in due course. It may be that Finance so regulates salary packaging in relation to superannuation or the legislative framework for the Commonwealth superannuation arrangements and if recollection serves me correctly their multiple may preclude those sorts of arrangements altogether, but those that advise the department at least would know whether it has had any appeal in the variety of arrangements that they have been able to organise, perhaps at levels above the APS.

PN1837

SENIOR DEPUTY PRESIDENT CARTWRIGHT: On that score, a question for the witness. Is salary packaging available to you?---No.

PN1838

MS MOUNTFORD: If I could clarify, your Honour. In respect of salary packaging and superannuation, my understanding of the effect of salary packaging superannuation is that it provides a higher dollar amount in a person's pay packet on a fortnightly basis because of the way the taxation is dealt with, but in fact the taxation does have to be paid at the time at which the superannuation benefit is realised.

PN1839

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Perhaps you need to take some advice on that.

PN1840

MS MOUNTFORD: Thank you.

PN1841

MUNRO J: Mr O'Brien, you have about five minutes.

PN1842

MR O'BRIEN: It might be a convenient time to break for lunch, if that is convenient for the bench.

PN1843

MUNRO J: Very well. The Commission will adjourn until 2.15.

LUNCHEON ADJOURNMENT [12.35pm]

RESUMES [2.13pm]

PN1844

MUNRO J: Mr O'Brien?

PN1845

MR O'BRIEN: Thank you, your Honour.

<CROSS-EXAMINATION BY MR O'BRIEN [2.13PM]

PN1846

MR O'BRIEN: Ms Watson, I'll ask you some specific questions to which I want you to give me specific answers. First of all, can you tell me if the witness statement that you have tendered, CPSU7, is the same as the document at CPSU1? Are there any changes to this statement to the one - as opposed to the one that was in the materials lodged?---Not as far as I know.

PN1847

So the minus was already highlighted, was it, at the end? I must have missed that - excuse me, I withdraw that. There are no other changes, are there?---I don't think so.

PN1848

Ms Watson, you talked about the staff wanting to move to 12 hour shifts at Parliament House, your station?---Yes.

PN1849

Because they wanted more time off. There was an approach to APS management to move from eight hour to 12 hour shifts and you said that management would only allow it if the eight hour shift penalty was averaged. The effect of that I think you have said is that it makes it cost-neutral, that's correct, is it not?---Yes, that was the understanding - - -

PN1850

Averaging the shift penalties makes it a cost-neutral change?---That was the understanding.

PN1851

So in that sense it has not reduced the penalty cost to APS, has it?---Reduced the penalty cost? No, but it did reduce the entitlement that we had from the award.

PN1852

You agreed to reduce that? You agreed with management to move from eight hour to 12 hour shifts?---Yes.

PN1853

I am sorry, I can't hear you very well. Perhaps if you could speak up a little, if you wouldn't mind?---Yes.

PN1854

That agreement was rendered in an unregistered written agreement between the CPSU and the APS?---Unregistered, yes. It was signed by both parties and we had a staff vote at the station.

PN1855

But given that it was cost-neutral, as you have said, from the APS perspective there was no reduction in the penalty rates payable, that's correct, is it not?---Well, there was a reduction from the entitlement in the award for 12 hour shifts, yes.

PN1856

Yes, but you were on eight hour shifts and you had eight hour shift penalties, correct?---Yes.

PN1857

They were at ten per cent?---Averaged at ten per cent over the three shifts, yes.

PN1858

Averaged at ten per cent. Now, you sought to move to the 12 hour shift, that had an average 15 per cent, correct?---Yes.

PN1859

The basis upon which you could get agreement was that you would average the eight hour shifts, so in other words you would take that cut in entitlement but that was what you agreed to to achieve the additional benefit of the 12 hour shift?---Yes.

PN1860

So the point I make out of that is that the cost to APS was not reduced?---No.

PN1861

Because they were paying eight hour shift penalties and under the new arrangement that suited employees better they are still paying the same penalties?---Correct.

PN1862

Thank you?---I don't believe I ever said there was a reduction in costs.

PN1863

I am not suggesting you did, I am just trying to establish that there wasn't. So what follows from that is that since there was no reduction in the cost to the APS there can be no claimed productivity improvement?---If - we had a choice, we wanted to trial 12 hour shifts that had been mentioned a number of times in a number of different stations, in order to do the trial then the staff elected to get the same penalties for a 12 hour shift as what they would for an eight hour shift.

PN1864

Okay. I'll leave that there, thank you. You said at one stage that moral was low because there was no pay rise and you gave an example as I recall of people walking around the station and don't have anything positive to say about the work, words to that effect?---I didn't say they didn't have anything positive, I don't think, did I?

PN1865

I am sorry?---I don't think I said that they don't have anything positive to say.

PN1866

Well, perhaps if you could tell me the sort of message you were trying to convey?---That they just don't want to be there, type thing.

PN1867

Thank you. But that could be the reason for - that could be the case for reasons other than not having a pay rise, could it not?---It's probably a number of factors but the ongoing negotiations and the length of that is certainly part of it because they talk about it all the time.

PN1868

Sure and you say that's a factor but if I put it to you that there are probably people who have had pay rises that feel the same about work, you think that's an unreasonable proposition?---I don't know anybody that I work with that's had a pay rise.

PN1869

In paragraph 2 you say that you are employed as a Senior Protective Officer at Parliament House and you transferred from the Australian Federal Police under division 9F of the Public Service Act. As a 9F officer at Parliament House you enjoy extra benefits, don't you?---Yes.

PN1870

They would include six weeks leave as opposed to four weeks and higher penalty rates?---Yes.

PN1871

How many 9F officers are there at Parliament House?---At Parliament House I guess there would probably be anywhere from five to ten. I am not sure of the exact number. I believe there's about 45 left in the whole of the APS.

PN1872

All up, okay. Given that you are a 9F officer with those different entitlements do you think that that represents a difficulty for you in terms of relating to representing your members at Parliament House?---No.

PN1873

I am sorry?---No.

PN1874

You only represent your members or do you represent staff generally at Parliament House?---When it comes to a vote then I specifically regard CPSU members because it's a CPSU vote but I have spoken to union members from other unions and non-union members about the whole negotiation, cause they have a right to know as well what's going on and they often ask questions.

PN1875

But in a formal sense as a CPSU official you represent your CPSU members, that's the case?---In the first instance I represent their interests, yes.

PN1876

Now you talked about decentralised rostering. Just remind me, the position now is decentralised, that's the case, is it not?---Correct.

PN1877

And the previous exercise or the previous centralised rostering was a trial, I understand, is that the case?---No. The decentralised rostering I believe was the trial. We haven't - when I first came to the ACT they had centralised rostering, it was done in ACT regional headquarters by the roster clerk, managed by the control room.

PN1878

Are you aware that centralised rostering involves, I think it is four officers to manage the rostering, are you aware of that?---Yes, but it doesn't take up - it needs one person per shift to manage it but that person doesn't need to not do anything else, so when we had centralised rostering there were four perso ones in the control room and four perso twos. From the control room they managed that in addition to their other duties and each station paid for part of that perso one position because they were performing a function for some other stations or for all of the stations.

PN1879

At paragraph 4 I think it is, you talk about the increased emphasis on training. This is a positive for members, is it not?---Yes, it's also a positive for the APS.

PN1880

The CPSU has agreed to provisions in the draft ..... Award that puts an increased emphasis on training, are you aware of that?---Yes.

PN1881

But an increased emphasis on training per se or of itself is not a productivity improvement, is it?---It is when you consider at Parliament House we have safe passage computers which is a baggage screening programme and the officers when they've got downtime go through and work through that package which means they don't need to then go off and do a course be it half day or full day or once every 12 months or once every two years so it maintains the skills of the staff there so that we can be sure that the skills are kept up to date all the time. They have to reach a certain level within the programme every three months.

PN1882

But surely what you are describing there is simply a change in the method of training delivery with computer-based training and that sort of thing?---It means that staff can do it in the station and it is no extra cost to the station rather than sending them out to do a course outside the station for a day where the APS pays them overtime or back fills them on overtime or whatever.

PN1883

You also say that sign up for traineeships has allowed the APS to access funding from Department of Employment, Training and Youth Affairs. The funding is tied to the provision of traineeships though by the APS, is it not?---It is, yes.

PN1884

And there's no additional funding or revenue generated other than that required to provide the necessary employment training?---The funding was $4000 per officer that signed up for a traineeship and it meant that the APS could bring in that certificate 2 and 3 in security guarding within 12 months rather than it taking four years to find the funds to fund the assessment that was necessary because each person needed to be assessed and that took about four hours per officer. So each - most of the supervisors in ACT especially became workplace assessors and actually conducted that assessment. So if they hadn't - if APS hadn't got the funding from DEETYA then if we were to get certificate 2 and 3 then the process would have been a lot longer and the APS at the moment wouldn't be able to sell the fact that we have certificate 2 and 3.

PN1885

But I understood you to say that certificate 2 and 3 came in with the traineeships?---It was part of the traineeship for which APS receive $4000 funding.

PN1886

But I mean you claim that it's one of the productivities that you've witnessed. Isn't it simply APS being a good corporate citizen and contributing to efforts to relieve youth unemployment?---Everybody that signed up for a traineeship in the beginning was already employed by the APS and I believe it was a loophole in the actual wording of DEETYA traineeship that allowed APS to get funding for staff they'd already employed and already they needed to do was assess them. Give them the certificate 2 and 3 to get the funding.

PN1887

But in any case the CPSU agreed to the introduction of traineeships, didn't it?---Well, of course it had a benefit for our members because it was the first time that APS officers had a qualification that they could show that related to the industry. Because before they came in there was no qualification that was recognised outside the APS.

PN1888

I may come back to that one but going on to paragraph 5 you talk about a wage freeze since October '96 and some of the adverse consequences that you allege from that. You say that people are now working more overtime as a consequence of there being no pay rise. But would you agree that equally it's a consequence of there being a failure to reach agreement?---The wage freeze?

PN1889

No. The fact that there has been no pay rise?---Of course.

PN1890

Thank you. You talk about a wage freeze and it denotes a unilateral decision by management, doesn't it, that is that management has decided to freeze wages?---No. It means the wage freeze as you just said is because we haven't been able to reach agreement.

PN1891

So perhaps the term is used in a slightly different context to what it might normally be used in. So you're saying that the term, wage freeze, and the way that you're using it means a failure of the parties to reach agreement?---Well, it's a failure of I guess a lot of factors but my intention is to say that officers haven't had a pay rise that is what I consider a wage freeze.

PN1892

Yes, but you're saying they haven't had a pay rise and by using the word, wage freeze, it suggests that the reason for it is because the employer won't give you a pay rise. Is that your position?---It's because we haven't reached an agreement.

PN1893

Thank you. Okay so you haven't reached agreement but 35 per cent of APS employees are covered by agreements, are you aware of that?---I believe that's what the documentation says, yes.

PN1894

You don't take issue with that?---I have no reason to dispute it.

PN1895

So those 35 per cent of employees haven't had a wage freeze or on the other hand they've actually had a pay increase, haven't they?---Yes, I guess they have. I mean I don't know the details of all the AWAs or anything like that. I mean some of them came into the APS on AWAs.

PN1896

But presumably they've had a pay increase?---Their salary is probably more than mine at the moment, yes.

PN1897

They've agreed those increases through the agreements whether they be AWAs or collective agreements?---Yes.

PN1898

Thank you. Now, you talk at paragraph 6 about having been involved in negotiations and you give some examples of management delays and frustrations. You talk about meetings being delayed, attending meetings to find that management have changed its position and the like. In relation to meetings being delayed, is it possible that this could happen for a wide variety of reasons?---Mm.

PN1899

It is possible. It's possible that reasons could be other priorities or other issues arising due to the nature of the work at APS. That's possible, isn't it?---Anything's possible.

PN1900

Anything's possible. Indeed a combination of these different factors could give rise at various times to the need to delay or reschedule meetings, that's correct, isn't it?---It is but we considered that the delays were unusually often.

PN1901

But it is possible that a combination of reasons for delays that are quite plausible and reasonable in the circumstances could give an appearance of regularity or a pattern to a cynical observer, isn't it?---I don't know.

PN1902

You don't think it's possible?---Anything's possible, I mean it's possible that the reason for the delays was a good reason. It's possible that the reason for the delays was that they weren't as keen to have a meeting as what we were. It just seemed unusual that the delays kept happening on a regular basis.

PN1903

So you think it's more of a plot than just a - - - ?---No, I don't think it was a plot.

PN1904

By design?---No, it just seemed unusual that meetings kept being delayed because APS didn't seem to have the resources to put into the paperwork that needed to be completed before the meetings. Like for example, at one meeting we were promised that we would have the documentation a week before the meeting and we didn't.

PN1905

At one meeting?---When we got to the meeting, one example, we got to the meeting and started discussing the document and started discussing a particular issue and I don't at this stage remember exactly what it was, and they said, no that shouldn't be in there. This document doesn't necessarily reflect managements view. We said, well why are we discussing a document that's not your view and it's not our view.

PN1906

What you seem to be saying in your statement is something a little stronger it seems to me then, it seems unusual. You seem to be saying, in fact what you say is:

PN1907

Witnessed a number of examples of management delays and frustrations such as.

PN1908

So that's more than saying it's just a little unusual, isn't it? You seem to be saying that it's by design, don't you?---I don't think I've said that, no.

PN1909

You say that there was constant under valuing of productivity gains throughout the certified agreement negotiating process. You'd be aware that the CPSU has put a 6 per cent figure on the move from a 38 hour to a 40 hour week with abolition of RDOs? You'd be aware of that?---Sorry?

PN1910

Are you aware that the CPSU has put a 6 per cent figure on the move from a 38 to a 40 hour week with the abolition of RDOs?---5.26 per cent I believe it is.

PN1911

I think the material shows that it's been costed by the CPSU at 6 per cent. You're not aware of that?---No.

PN1912

What do you think the CPSUs costing is?---My own costing was 5.26 per cent.

PN1913

5.26 per cent. Are you aware that the most recent offer from APS values that change at 6 per cent with the stated intention of bringing it into line with the CPSU estimated costing for that item? Are you aware of that?---Sorry, say that again?

PN1914

Are you aware that the most recent APS offer, that's the 15 per cent offer for an agreed outcome, values that particular item at 6 per cent with the specific purpose of bringing it into line with the price that the CPSU has put on it?---No, I wasn't.

PN1915

You're not aware of that. Did you participate in the phone hook up recently that rejected this offer?---Yes.

PN1916

You presumably informed your members about it and about the elements of it?---I spoke to members about what they thought about the offer.

PN1917

And what did they tell you?---They said that it wasn't acceptable.

PN1918

And did you tell them that this was a part of it and what the price on this item was?---The difference between 5.25 per cent and 6 per cent was going to be that much of a difference.

PN1919

But it's significant, isn't it, that the price is higher, that the employer puts on it than what the union puts on it?---The last offer was 15 per cent as well.

PN1920

So you just look at - - -?---So the offer really hasn't changed.

PN1921

I see?---So I mean, if it was 5.25 per cent or it was 6 per cent and the offer was till 15 per cent to give up the same conditions then what's changed except the analysis of what the RDOs are worth, what a 40 hour week is worth.

PN1922

I'm not talking about the other elements of it but it would seem - - -?---It's a whole package and that's what we've been told the whole time along you have to look at the overall package and that's what we did.

PN1923

I don't dispute that but if you look at the headline rate perhaps rather than the component parts surely you would look at the component parts if you wanted to inform your members about the relative merits of any particular offer?---Yes I did, I looked at what 15 per cent was worth, not that the amount had changed from 5.25 per cent to 6 per cent.

PN1924

Now you also say that during conciliation with Commissioner Deegan the offer was 21 per cent for a 42 hour week and resulted in a lower hourly rate than the 15 per cent for a 40 hour week offer put by the secretary in June 2000. I mean, do you acknowledge that this was an offer put in good faith in an attempt to accommodate the order of increase that the CPSU was demanding at that time?---The 15 per cent?

PN1925

No, the 21 per cent?---The 21 per cent. It may well have been but if, t he 21 per cent I believe was put to entice members to vote for something that really was no better, in fact worse than the previous offer.

PN1926

But the question is - - -?---Because when I saw 21 per cent to start with I thought, gee, this looks pretty good, but then looked at the 42 hour week, did the sums, and worked out it was worse than the previous offer.

PN1927

But do you acknowledge that it was an attempt by the APS given that the CPSU was looking for a quantum in the 20s APS attempted to get there and the way to do that in a responsible fashion was to move to 42 hour week and so it was an attempt by the APS to somehow accommodate the demand of the CPSU?---It may have been but they obviously didn't do their sums otherwise they could have worked out that it was worse than the 15 per cent offer they had offered us before.

PN1928

You also say that you feel justified in receiving a back pay component in an MX award. Do you think this is likely?---I have no idea, that's up to the Commission.

PN1929

At paragraph 7 you talk about a variety of issues that bargaining has centred on. Would you acknowledge that in the circumstances it is very difficult for APS to achieve productivity gains other than by cashing out some current entitlements?---Yes.

PN1930

At paragraph 8 you talk about members seeking retention of their RDO entitlement although a number of members would agree to forego them. Do you agree that the draft award allows for employees to access time off in lieu of overtime, do you acknowledge that?---Yes.

PN1931

And does this in effect give the same result as RDOs but with the key distinction being that it's on the basis of personal choice while providing a significant productivity improvement which can be offset for a pay rise?---Only if they remain on a 38 hour week.

PN1932

Now, at paragraph 10, you talk about emergency duty and that members are willing to tighten that up. You acknowledge that that tightening was needed. But do you acknowledge that the APS still needs to pay the person that is being replaced by the emergency duty shift?---Depends why the vacancy is there.

PN1933

Well, if it's for sick, emergency sick leave, something like that?---Emergency duty happens for a number of reasons. If we have people away on temporary transfer it may result in an emergency duty to fill that shift.

PN1934

And the point being that APS has to pay for the emergency shift as well as that other person either being away doing other work, I take it the distinction, but in the case of sick leave, short notice sick leave, they would still have to pay for that, wouldn't they?---But sick leave is already budgeted for anyway.

PN1935

You talked about the period of overtime during, I think it was July 2000 and December?---January 2001.

PN1936

January 2000, January 2001?---Sorry, July to January.

PN1937

And I think you indicated if I've got my figures right there was a 9409 hours of overtime?---Yes.

PN1938

And 34 per cent of that was on emergency duty?---Well, 42 per cent.

PN1939

Forty two, okay.

PN1940

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Can I just clarify. That was over a 7 month period?---Six months, July to January, 1 July to the end of January.

PN1941

MR O'BRIEN: Was there anything exceptional about that 6 month period?---Not as far as I know.

PN1942

The Olympics didn't occur in that 6 month period?---Yes, they would have I guess.

PN1943

The deployment to Woomera, the DIMA refugee or whatever station, there was a breakout there as I recall, I think that occurred in that period?---I'm not sure.

PN1944

I can assure you that it did. So how representative are those overtime figures - - -?---I didn't just pick that 6 months because something happened there, I just went 6 months back from a date.

PN1945

But nor did you indicate or qualify the fact that there were some quite significant contingency developments in that 6 months period, I mean, you didn't qualify that, did you, you didn't suggest that?---The average overtime per month for Parliament House is 1500 hours so that's not much different to that.

PN1946

And how much of that is on emergency duty?---Per month? I don't know.

PN1947

But certainly you would seem to be in agreement that there has been excessive use of emergency duty in the past hence the need - - -?---Depends what you term excessive use, I mean, you're making it sound like that's what the members, the members use it as emergency duty but it's just something that happens.

PN1948

What about a scenario where somebody is asked if they want to do an overtime shift and they might say, well ring me at home and I'll let you know. Have you ever heard of anything like that happening?---I have but they don't get rung, they're never asked again. As a supervisor I've had one in probably 4 years that I can remember and they've said, I don't know, ring me later and I say well decide now or they don't get rung. It may have been a genuine reason, I don't know, but as a supervisor I have a responsibility to the APS to contain costs if I can.

PN1949

Thank you. How many days per year do officers on 12 hour shifts work typically?---How many days per year? I don't know, I haven't - I have not worked that out.

PN1950

What is the CPSU savings estimate or costing for the item of the typing of the emergency duty provisions in the draft award?---1.5 per cent I believe. I haven't memorised everything so, I don't know whether I am correct or not, but that is roughly what I believe it is.

PN1951

Certainly that is what the APS has costed it at, so there we have one item and we have the similar costing potentially and- - -?---Sorry, I thought you said what was the APS's costing, is that what you said?

PN1952

It is 1.5 per cent. Do you know what the CPSU costing is?---No. I'm not good with remembering figures and stuff.

PN1953

That's okay, if you don't know the answer that's fine, just say so. At paragraph 11 you go onto to talk the issue of station agreements and the strong resistance of your members to those. Do you acknowledge that there is a significance difference between APS locations and the need for variation of conditions, some conditions perhaps to meet the particular needs of the different stations?---Each station is unique but the staff mobility between stations means that all entitlements relate to basically every APS officer, so, if I move from parliament house to Woomera for example, I am entitled to different conditions, so, if we had a station agreement at parliament house, for example, it would need to contain everything that was in a global agreement because of the mobility of staff. If I get a temporary transfer for a month to another locality, then I am still covered by a station agreement because this is my home station.

PN1954

Certainly that's one view of it. The point is, where people are transferred from station to station its overwhelmingly almost invariably on a voluntary basis. Is that your understanding?---Within different localities like parliament house in Act for example, people can get tranferred from station to station and that may not be voluntary, but to get transferred from Canberra to Sydney, for example, would more than likely be voluntary.

PN1955

Are you aware of any instances of compulsory transfer? So, it would be fair to say that overwhelmingly- - -?---Not between different localities like Canberra to Sydney. In Canberra itself people used to get moved around between stations every two years whether they liked it or not. Station for two years, move to another station for two years.

PN1956

When was that Ms Watson?---It stopped when we started to decentralise rostering.

PN1957

Okay, so it has stopped, it is no longer the practice?---No.

PN1958

Thank you. So, then, do you accept that overwhelmingly, because you haven't been able to site an example of a recent compulsory transfer, transfers are on a voluntary basis. That's the case is it?---Yes.

PN1959

When you transfer from station to station, if it has got similar terms and condition of employment you would retain those, that's true?---Everybody is on the same conditions, yes.

PN1960

If you go to a remote locality station, Exmouth or somewhere, then there would be different conditions but you would presumably know what those conditions were, as a voluntary transfer, so your conditions and terms of entitlements whatever might change, but it would all be done on a voluntary basis. One would go into it with ones eyes open?---Everybody is on the same conditions because it is in the award. They know before they go to a location or should know before they go to a location, what their entitlements are at that station.

PN1961

But people have transferred into stations that are covered by LK agreements haven't they?---I don't know.

PN1962

They have. What happens in that circumstance is that if they transfer in permanently they are then covered by the terms and conditions extant at that station. Similarly, if they transfer out, they are covered by the terms and conditions at the receiving station. There doesn't seem to be a problem does there about - it seems to be alluded to in the union material about people being afraid of losing their entitlements if they are tranferred station because it is on a voluntary basis?---They may choose not to transfer because of the conditions of the station.

PN1963

As you say they may choose not to- - -?---They have always been able to do that. The difficult thing is temporary transfer where - and I don't know that Sydney DPU agreement has any remote locality conditions in it. If somebody from Sydney DPU transfers temporarily to another locality, they may not have the same entitlements as other people at that locality, because it is not contained either in a AWA or a station agreement whatever the case may be.

PN1964

As we have just been discussing, to transfer permanently, you do it on a voluntary basis. If you transfer temporarily to meet an operational contingency, such as people from various stations transferring to Woomera, in the period that we were talking about before, those people would retain the terms and conditions of the home station, perhaps in addition to any additional benefits from remote localities or the like. Is that your understanding of how it works?---My understanding is that they stay on - if they are on AWA, they are their conditions and it doesn't matter where they go, they stay on those conditions.

PN1965

It doesn't seem to be an impediment for mobility?---For a person not from Sydney airport on an AWA goes to Woomera, for example. They don't get a remote locality because it is not in their agreement. Everybody else there does.

PN1966

That is the point I am making, that they retain the terms and conditions from the home station. That's the primary?---So they would in fact be disadvantaged by going to a remote locality, and not getting remote locality allowance as the other people there would.

PN1967

I think they would be getting TA and other entitlements, wouldn't they in that circumstance. It would come from the terms and conditions of their own- - -?---Remote locality allowance is different to TA.

PN1968

Precisely but they are not in a remote locality, closer to a remote locality. The distinction is that they are on temporary transfer from their home station which is why they retain those terms and conditions from that home station?---It depends how long the temporary transfer is for, depending on what they are entitled to.

PN1969

That's right?---Under the common law. Like extra leave for example, if they go to a remote locality and they are there for more than 30 days, I believe, then, or three months, I can't recall what it is, then, they get extra leave, but somebody from Sydney airport wouldn't get that because it is not in their AWA.

PN1970

Turning to the issue of shift rosters, you say at paragraph 13 that it's important that members are able to predict their days on duty and the like and you talk about drop line shift roster and an exhibit has been tendered, CPSU 8. Isn't it true that the rosters of the APS enable predicability of shifts for 12 months in advance?---Not any more.

PN1971

Isn't it true that a drop line roster is a relief roster or a backfill roster and by its nature it's somewhat more volatile than other rosters?---The backfill part of it is, yeah.

PN1972

If we just talk about Parliament House where you're stationed or indeed generally, all employees are rotated through drop line rosters, is that the case?---Yes.

PN1973

So they're equitably administered in that sense?---Yeah, everybody moves through the same roster but the roster might change from week to week depending on where vacancies occur.

PN1974

I'll come to that. People in it are above the requirement to meet the minimum client requirement of the station?---They're there to backfill leave and other situations.

PN1975

In fact, you would be aware as a supervisor that there's a 17 per cent figure of extra staff to cover these sorts of absences?---I believe that's the figure, yes.

PN1976

This is what makes up that drop line roster?---Yes.

PN1977

MUNRO J: Does that mean, Ms Watson, that page you took us to, page 4 in CPSU 8, lines 54 through to 65 should constitute approximately 17 per cent of what the total PSO1 12 hour shift claims?---That would be 17 per cent of pages 2 and 3.

PN1978

Of page 2 and 3 including SPO, PSO2 etcetera?---They're used as a backfill for the whole station.

PN1979

MR O'BRIEN: Ms Watson, in practice people get seven days notice, don't they, of the roster changes?---Not always, no.

PN1980

What happens when they don't get seven days notice?---Provided the employer doesn't have prior notice - if the employer doesn't have prior notice to a change then everything stays the same, they just get a change of shift.

PN1981

If the employer are you saying?---Yeah. If APS doesn't get notice, like if for example somebody needs to take carer's leave tomorrow to take somebody to hospital and they ring up and say, I want carer's leave tomorrow. The APS could change that shift because they don't have prior notice, then that person just gets a change of shift.

PN1982

But where APS initiates a shift change, there's seven days notice in accordance with the award provisions, is that the case?---Yes.

PN1983

In fact, OICs as you would be well aware work hard to manage rosters and are mindful of the effects on employees, including the sorts of issues that you raised such as the need for child care and those sorts of family emergencies that arise. Is that the case in your experience?---I couldn't say. I know for example at Government House there were two people that were rostered on 10 days straight against OH&S principles.

PN1984

But it may have been that that occurred because other people had issues that took a priority in the view of the OIC in terms of managing to best over all effect the shift roster. That's possible, isn't it?---So it's okay to roster people on for 10 days straight if it's convenient?

PN1985

Well, those people may have - - -?---And by the way, I don't believe that's the practice any more but it did happen.

PN1986

It did happen?---A number of times.

PN1987

I guess the point I'm trying to get to is where that happens, why do you think that might have occurred?---Because there was a need to roster somebody on a weekend so they got Monday, Tuesday off at the beginning of one week and Saturday, Sunday off at the end of the next week, because we're not allowed to roster extra people on weekends so they were rostered Monday to Friday for the second week but they needed people on the weekend the week before so then they were rostered 10 days straight.

PN1988

So people would've been offered overtime, wouldn't they, rather than directed in on a Sunday. Wouldn't that be the normal procedure?---It was on the roster, it was rostered.

PN1989

Yes, but I'm talking about in a general situation people would be overtime rather than directed to come in?---You mean on a roster or?

PN1990

No, in an emergency duty sort of context?---They're generally asked if they want to come in, yeah.

PN1991

MUNRO J: The 10 days straight roster you're referring to, does that result in all of that time being paid at ordinary time rates?---Other than penalties, yes.

PN1992

With normal shift penalties?---Yes.

PN1993

But by rostering in that manner it means that there are 10 days straight worked and then presumably the four days off are just added in before the next rostering arrangement commences?---Well, the 10 days was in the middle of the fortnight so they had Monday, Tuesday off one week and Saturday, Sunday off the next week and worked the whole 10 days in between.

PN1994

At ordinary time, or at shift time, yes.

PN1995

MR O'BRIEN: In terms of where drop line rosters are changed at short notice, given the somewhat increased volatility by virtue of their very nature, you talked about the negative impact on families because of this, isn't it the case that if this occurs then the officer concerned receives double time penalty payment if seven days notice is not given?---No, the first three hours are at 50 per cent and the last five hours are at 100 per cent but that in many cases doesn't compensate for the change of plans.

PN1996

But it's the award entitlement. That's the case, isn't it?---Yes.

PN1997

You haven't been able to reach agreement on some other entitlement?---I'm sorry?

PN1998

And you haven't been able to reach agreement on some other entitlement? What I'm saying is that's the award entitlement?---Yes.

PN1999

You've been bargaining but you haven't reached agreement on any other entitlement?---I believe we've agreed on that entitlement.

PN2000

Which entitlement is that? Indeed, but the penalty rates aren't agreed though, that's the point I'm making?---The penalty rates?

PN2001

Yes?---Yeah, but that particular instance where you get a change of shift is not included in the penalty rates section. That's included in a change of shift section which is different.

PN2002

In any case, you would agree, would you not, that the APS essentially manages its shifts to achieve the best outcomes and it does so in accordance with the relevant award provisions, providing reasonable notice, etcetera, where possible, as a general statement?---Where possible, but I don't believe some of their practices are effective.

PN2003

Can I take you now to paragraph 14 of your statement where you talk about the strong industrial campaign, particularly during the first four months of 2000. Both the APS and the CPSU exercise their right to take industrial action, is that the case?---Yes.

PN2004

But the CPSU took industrial action first, didn't it?---Yes.

PN2005

And APS took action in response?---The CPSU - well, actually the CPSU wasn't the first union to take industrial action.

PN2006

I'm only concerned with the CPSU?---But yes, we had one hour stoppages initially.

PN2007

Then the APS took action in response to the CPSU action?---Yes.

PN2008

The employees who engaged in industrial action were stood down for the remainder of the shift, that's correct?---In most cases, yes.

PN2009

In most cases they were replaced by police or other - - -?---Some of them weren't replaced at all.

PN2010

Where they were replaced they were replaced by police or other providers?---Yes.

PN2011

And one reason for this was to maintain the continuity of service to clients, do you accept that?---No, because if they wanted to provide the continuity of service to the clients - if we were having a one hour stoppage and they couldn't get enough police or enough private security to cover the whole station, they were underserving the clients when there was staff willing to come back to work after an hour, and that was the case in some stations.

PN2012

But the purpose in bringing in additional staff to replace those who had been stood down was essentially to maintain some degree of presence and to endeavour to meet the clients needs?---Not fully, no.

PN2013

Not fully, but nevertheless that would have been the reason, would you not agree?---That they brought other staff in, or that they stood the APS down.

PN2014

No, that they brought other staff in?---They brought other staff in, because they'd stood their own staff down.

PN2015

Yes, but they brought the other staff in to maintain the continuity of service delivery after the other staff had been stood down. That's the case isn't it?---After the other staff had been stood down, yes.

PN2016

We are not disputing that the staff was stood down. You go on to say that this led to members having their pay cut during the industrial action. As the President of the CPSU APS section council, and the union official who has been involved in agreement negotiations at APS, are you familiar with the terms of the Act in relation to strike pay and the like?---I am.

PN2017

So that's section 187AA?---I don't know the section number.

PN2018

Can you tell me what the effect of it is?---The effect of it is, it's illegal for people taking industrial action to claim payment for that time and it's illegal for an employer to pay that.

PN2019

And did you advise your member of this before they took industrial action?---Of course.

PN2020

So that all of those members who took industrial action did so being fully informed of the consequences of doing so?---Yes.

PN2021

At paragraph 15 of your statement, there is just a couple of points about the superannuation. On the superannuation issue, Ms Watson, you are not suggesting that the employer is not meeting the statutory obligation to pay your superannuation contribution are you?---No, of course not. I am just pointing out the effect that not having a pay rise has made on my total superannuation.

PN2022

Yes, thank you. I've just got a couple of short questions on this. So the employer is making the requisite superannuation contributions?---Yes.

PN2023

So the effect that you describe there is something that is internal to the superannuation fund that you belong to, for whatever reason. It's not the responsibility of the employer is it?---To manage the super fund, no.

PN2024

And whatever is happening to the balance of your account within that fund is also beyond the control of the APS, wouldn't you agree?---Well no. If I get a salary increase, then that changes.

PN2025

Let's break that down to smaller chunks if you like, and that is, you are not suggesting that the APS - you said that they are meeting the statutory requirements to pay your super contribution. So beyond that, they have no responsibility about what happens to the balance of your fund, do they?---No.

PN2026

Then neither is it the responsibility of the employer alone that there hasn't been a salary increase, which goes to the other issue that you raise about - - -?---No.

PN2027

Some of your members would also be in CSS, I presume?---Yes.

PN2028

HIS HONOUR: I think Ms Watson, you have to say something. I think your nods are not being recorded by the court reporter.

PN2029

MR O'BRIEN: You have said though that - - -

PN2030

HIS HONOUR: I think perhaps Ms Watson has stimulated some of us to try and inform ourselves about the PSS in the meantime. If I put this proposition to you, even if you don't know the answer yourself, then perhaps someone else can record it, the negative employer component in the accrual figure that is shown - maybe a product of the better than anticipated earning rate for the scheme including the notional employer component. And instead of recording that outcome either as a notional contribution holiday - because the fund is in excess in relation to the necessary employer component is recorded as a negative impact upon that employer component. But it is largely a function of firstly the employer contributions having been made actually or notionally and secondly the attributed earning rate for the fund resulting in a calculation by the actuary of how much the employer needs to be in fund in order to fund the defined benefit that your own contributions together with the employer contributions and the productivity produce?---I was just trying to outline the effect that the salary had on the total benefit that you were going to get on your super fund.

PN2031

Yes, and I think we understand that aspect of it, that it's related to final salary and the contribution related to actual salary as you go.

PN2032

MR O'BRIEN: Thank you, your Honour. Ms Watson, You talked about the 15 per cent offer - I think it was in June last year that the offer from the secretary. And you said that if it included loss of RDOs and a move to a 40 hour week. Correct me if I'm wrong, but this is what I understood you to say. And you said, if it didn't include 4 days training on the individuals own time and if it didn't include no pay when not rostered on for a public holiday, you said that you would - - -?---Not rostered off.

PN2033

Not rostered off. Thank you. If I recall correctly, you said that you would have recommend it to your members?---To get an agreement, yes.

PN2034

But the current offer of 15 per cent does not contain the element of training on one's own time and whilst it does contain the no pay if rostered off on a public holiday, there is a 1 per cent offset specifically identified for that item?---I'm rostered off for 8 public holidays this year. That's worth 4½ per cent to me of my salary. So 1 per cent, I don't think comes anywhere near it.

PN2035

But then the value of it to you as a INF officers would be somewhat more than it would be to others, wouldn't it?---It's based on your hourly rate.

PN2036

You say in general that you would prefer a certified agreement and that you've gone to members and you have outlined offers to them and they say, no, if that's the position then they won't accept it. But you've also said that some people don't do their own sums, you do the sums for them. That's correct isn't it?---I'm not the only person that does sums.

PN2037

No, but there are some that do and some that don't?---Yes.

PN2038

But the current offer of 15 per cent does not containsome that follow, yes?---Mm.

PN2039

So there's seems to be a culture in the place and I guess particularly with union officials, and it's understandable that people take the lead of union officials in these sorts of matters?---No.

PN2040

You don't think that's the case?---Talk to me about rosters at Parliament House and then tell me what.

PN2041

All right, I'll move on. Thank you Ms Watson, I have no further questions your Honour.

PN2042

MUNRO J: Ms Mountford?

<RE-EXAMINATION BY MS MOUNTFORD [3.16pm]

PN2043

MS MOUNTFORD: Ms Watson, Mr O'Brien raised the issue of your different status as a 9F officer and the fact that you're also a CPSU delegate representative, President of the APS Section Council, could you tell the Commission in the last twelve months outside the issues that are currently being considered in the draft award what were the key conditions of employment that have been in contest for 9F officers in relation to the negotiations and under challenge in the negotiations compared to those who are not 9F officers, were there any, just yes or no?---No, the 9F conditions weren't a matter of contention.

PN2044

So you had no dissatisfaction with any of the offers in respect to 9F conditions?---No.

PN2045

Thank you. The issues of delays in negotiations have again been canvassed in these discussions, you said in your response that you were concerned that some of the impacts of these delays were lack of documentation, could you explain to the Commission what impact that had in terms of progressing agreements?---It meant that we weren't prepared at the time that the meeting was supposed to start, we had to have a meeting between ourselves to discuss issues that were contained in the document before we actually met with APS and in some cases that was not only the CPSU, that was the other union and staff representatives as well, it just made the whole process take, where it could have taken one day sometimes it spilled into two days because we didn't have a chance to not only talk to our members but to talk between ourselves.

PN2046

Is it your contention that in fact this regardless of what the reason was for these difficulties that the primary concern was the impact on the negotiation process?---It just made the whole process frustrating and longer than it needed to be, we just wanted to get there and get an agreement and finalise the whole process.

PN2047

Mr O'Brien went to issues and components associated with the CPSU wage claim and the APS offer, he was seeking to draw out from your understandings of the various values of the different components within the offers or within our own claim, could you outline to the Commission at the end of the day how people make a judgment about either our claim or about the APS offer, how do they go about doing that?---They look at a number of factors as to what effect it's going to have on their take home pay, what conditions they're losing and how much they think they're worth. They discuss that with various different officials within the union and make an assessment of what it's worth to them.

PN2048

And finally the issue of rostering at Parliament House has come up again and you said in response to Mr O'Brien that you didn't think the rosters were effective, what did you do about that? Did you do anything as a supervisor when you made that judgment?---As a supervisor and as a CPSU rep we had a meeting with the officer in charge of Parliament House and tried to work out a roster because a directive came out from National Headquarters to the OIC that he wasn't allowed to roster a backfill on a weekend so what we tried to do was work out the best possible roster that suited those conditions. We knew he had a directive to follow and if we didn't consult with him and try and work out the best option for the members and for the staff then we were just going to be stuck with whatever they formulated and we actually made a lot of changes to the way the roster functioned.

PN2049

And when did that occur?---Not having my diary with me - - -

PN2050

Just roughly?---Probably early February.

PN2051

Were there any earlier occasions on which you came to a conclusion that the roster wasn't effective?---Yes, we've had, I believe, I don't know whether it was after the Parliament House audit that Renae Tabott talked about his statement we had a situation where we have three afternoon shift lines Monday to Friday that weren't filled because nobody wanted to work permanent afternoon shift Monday to Friday because of, mostly because of social life and family commitments. So my proposal was to move those lines into the twelve hour shift rosters and I did that as an SPSO, not necessarily as a union rep so that those lines would be covered because up until then they were filling them with overtime so the effect was that you might have somebody on a 12 hour shift on a day shift and a 12 hour shift on a night shift which both ends overlaps your afternoon shift so they might have a person spare for four hours from day shift and a person spare for four hours from night shift and somebody on overtime happening at the same time and my proposal was to try and fix that. They went part way to doing it but didn't initiate the whole thing so we still ended up with kind of the same situation where you had spares in overtime as well.

PN2052

So how long ago was that?---That probably would have been 12 months ago.

PN2053

Thank you Ms Watson, I have no further questions your Honour.

PN2054

MUNRO J: Thank you Ms Watson, you are excused from further attendance but you may remain if you wish to.

<THE WITNESS WITHDREW [3.22pm]

PN2055

MUNRO J: Does that conclude your case subject to the recall of Mr McDevitt.

PN2056

MS MOUNTFORD: Yes your Honour.

PN2057

MUNRO J: You were going to open shortly I think Mr O'Brien, we might just take a short break before doing so, it will only be a couple of minutes.

SHORT ADJOURNMENT [3.25pm]

RESUMES [3.30pm]

PN2058

MUNRO J: Mr O'Brien?

PN2059

MR O'BRIEN: Thank you, your Honour. At the outset I would like to tender the authorities upon which the APS seeks to rely on this matter.

PN2060

MUNRO J: We will mark that APS 5 which is a binder of authorities to be relied upon by the APS.

EXHIBIT #APS 5 AUTHORITIES RELIED UPON BY THE APS

PN2061

MR O'BRIEN: If it please the Commission we earlier outlined the position of the APS and the Commonwealth in relation to the new momentum in bargaining which leads us to believe that there is reason to suggest that the parties may be able to reach agreement in a reasonable time. Therefore our submission is that deferral of formal MX proceedings for a period might facilitate this. The position is based on the shared view of the Commonwealth and the APS in relation to the emphasis under the Act on the primacy of agreement making with the Commission's arbitral powers generally exercised in the context of maintaining the award safety net and with arbitration, in the context of agreement making, very much as an absolute last resort.

PN2062

So these are pertinent considerations in this context. But, of course, the submission is that in alternative the Commission should arbitrate if it weren't convinced about that submission. The Commission has of course ruled on that submission. We have acknowledged that that ruling leaves the door open to the parties to continue negotiations with a view to reaching agreement. Whilst the current program for formal arbitration proceeds, that's an option and we will certainly be pursuing that to the extent that there is the opportunity.

PN2063

On the basis of that ruling I turn now to address the formal MX arbitration process. The APS and the Commonwealth submit that the Commission should exercise its discretion to arbitrate. In arbitrating an MX award the Commission should have regard to the substantial merits of the case and the requirements of the Act, including the criteria at section 170MX A to E and noting in particular the requirement for productivity improvement at paragraph 170MX 5D.

PN2064

What I would now propose to do is briefly outline the key considerations, in our submission, the Commission should have regard to. It is useful at this juncture to consider briefly, and this is what I propose to do, the relevant law and the relevant facts in particular circumstances in this case. But before I go to that I would like to briefly address the APS in context to situate the submissions.

PN2065

The APS is the Commonwealth government specialist protective law enforcement agency in areas of high sensitivity where there is Commonwealth interest. The APS performs this function in 21 strategic locations known as stations in all States and Territories of Australia, except for Tasmania. The APS has a total of around 700 employees. Of these approximately 650 employees are classed as operational employees. That is to say they are uniformed employees who perform protective security functions. Of these 650 operational employees, 25 are station managers or station assistant managers. The remaining 625 operational employees are employed in protective service officer classifications and they are protective services officer grade 1, grade 2 and senior protective service officer.

PN2066

The operational staff of the APS are employed under the Public Service Act 1999 and they also have special powers of arrest under the Australian Protective Service Act 1987. In our submission the Commission should note that the APS has reached agreement with a substantial number of employees. As at 30 March 2001 nearly 35 percent of APS employees; that is around 250 of them were covered by agreements involving 3 station agreements covering some 50 employees under section 170LK of the Act and approximately 200 AWAs under Part 16 of the Act. It should be understood that the AWA in the station certified agreements have often been initiated by employees or their representatives as much as by APS management.

PN2067

In terms of the history of bargaining it is significant to note that during the course of the bargaining negotiations and especially in more recent times the APS has attempted to accommodate the CPSU by repackaging its offers on several occasions in order to seek to deal with the concerns that had been expressed by the CPSU. The table titled "APS Offers Repackaged to Accommodate CPSU Issues" is at attachment 6 to exhibit APS 1. That table summarises the APS revised offers between 1999 and the present.

PN2068

It must be understood that the APS position in these proceedings is founded on two key planks; namely, operational imperatives and the funding arrangements. Of necessity these two fundamental building blocks dictate the shape and dimensions of the APS stance in these proceedings, indeed, as they have done throughout negotiations with staff and the union. It should also be recognised at the outset that these two planks and the concomitant constraints that they entail are the essential elements underpinning the APS management agenda.

PN2069

In relation to the APS evidence; that of Martin Studdert, the director of APS, provides the strategic overview perspective of the APS position in relation to these proceedings. The affidavits of two of the clients of the APS corroborate the evidence of Mr Studdert and other APS witnesses. But, significantly, they do this from the client perspective. This is an important consideration in view of the full cost recovery basis of the APS.

PN2070

Now that brings me to the funding arrangements: The evidence of Rene ter Bogt who is the APS manager, business support, and who has responsibility for the finance function, will provide a more detailed overview of the APS funding and cost recovery arrangements and will address other issues relevant to these proceedings from a financial management perspective. It also canvases the financial implications for the APS arising from these proceedings and addresses the costing basis of the APS MX Award proposal.

PN2071

The APS is a non budget full cost recovery agency. It does not and will not receive funds from government. During the bargaining periods both negotiating parties separately raised with government the issue of whether funding supplementation was available to fund changes to terms and conditions of employment through agreement making. The government confirmed that its position is unchanged, no additional funding is available from government. The APS cannot increase its prices that it charges to clients because it is already a far more expensive service provider than its private sector competitors. It must internally fund any increases in labour costs and direct labour cost is the major cost for the APS, it represents over 80 per cent of operating costs.

PN2072

These funding arrangements are not unique to the APS, other agencies in similar circumstances have reached agreement where, whilst funding is constrained, it is not so constrained or so severely constrained as to prevent agreement making. Neither is the APS prevented from internally funding an MX Award if necessary however, the Commission should not that both eventualities are subject only to the contents of any such agreement or aware reflecting an appropriate balance between a package of measures to improve efficiency and productivity on the one hand and appropriate improvements to terms and conditions of employment and rates of pay on the other.

PN2073

The three Extent section 170LK certified agreements are in our submission further evidence of the ability of the APS to strike fair and equitable arrangements that meet the needs of both the organisation and of employees and that also, satisfy the requirements of the Act.

PN2074

Turning now to the APS operational imperatives, the evidence of Commander Lawrie Gardiner, APS Commander Operations will provide a more detailed overview of the operational imperatives and the environment within which the APS operatives and to address other relevant issues from an operational perspective. So, against the background of that description of what the APS is, what it does and its key imperatives in this process, I'll now go to some broad coverage of the relevant facts and law of this particular case.

PN2075

We submit that section 170MX has a special function and a specific role in the overall scheme of the Act which emphasis the primacy of agreement making between direct parties and the section provides a means for terms and conditions to be arbitrated by the Commission as a last resort in those exceptional cases where no agreement can be reached between the negotiating parties. In our submission this is such an exceptional case, 450 out of 110,000 employees in the whole of the Australian Public Service have failed to reach agreement.

PN2076

This is the first and only arbitration in the APS so far and that partly explains the Commonwealth's interest in the matter under subsection 44(2). As the Commission would be aware and some members perhaps more than others, this matter has a protracted history of unsuccessful attempts by the APS to reach agreement with the CPSU. Throughout we would submit that the APS has been flexible, it has attempted to meet the CPSUs need and again, there's been reference to it during the course of today but I would refer the Commission to attachment 6, the re-packaged offers which shows how those offers have changed.

PN2077

That said, APS does acknowledge that it is in a difficult situation and that is not a black and white situation in relation to the responsibility for the failure to reach agreement. This responsibility must be shared by both parties although APS contends that on an objective analysis the preponderance of responsibility for failed bargaining rests with the CPSU on the basis of the facts in evidence.

PN2078

By contrast to the APS we believe that the CPSU has not been flexible, rather for a range of reasons it has been somewhat intransigent and there appears to be unrealistic expectations of bargaining outcomes in an off-budget full cost recovery agency and for that matter, I might add that those expectations haven't been adjusted much to the MX Award context, so it would seem. As noted, MX arbitration is exceptional case arbitration, MX has a special and specific role in the scheme of the Act and this is detailed at some considerable length in the submissions and contention of both the APS and the Commonwealth.

PN2079

The criteria at section 170MX(5) apply, as per our contentions with the exception of paragraph 170MX(5)(f) in relation to Commission principles because, in our submission, there have been no such principles laid down. So, each case is to be determined on its merits and particular facts and circumstances. In this particular case in exercising its arbitration powers to make an award under section 170MX(3) it is appropriate for the Commission to have regard to paragraphs 170MX(5)(a) to (e) in our submission.

PN2080

What I propose to do now is briefly address each of those relevant criteria because they are at the crux of the task before the Commission in this matter. Firstly, the matters that were at issue during the bargaining periods, paragraph (a) and the APS contends that all of the matters put by it in its draft MX Award which is reflected in the CPSU3, the common document that sets out the respective position of the parties. All of these matters were at issue in the negotiations during the bargaining periods.

PN2081

Paragraph (b), the merits of the case. As a statement of general principle in respect of the merits of the case, APS contends that the APS draft MX Award represents an approach that would deliver a fair outcome to employees while also ensuring that APS remains a competitive and therefore viable enterprise. This is to be contrasted with the CPSU position which despite the submission of the CPSU at paragraph 31 of its submissions, fails to adequately address the principles annunciated in subsection 170MX(5) and particularly paragraph 170MX(5)(d) in relation to productivity improvement at that paragraph.

PN2082

To illustrate this point, the draft CPSU MX Award does not seek to address in any meaningful way, in our submission, the productivity improvements and organisational change necessary to support the very substantial pay increases that the CPSU is seeking. Paragraph (c) the interests of the negotiating parties in the public interest. The APS contends that the Commission making an award in the same terms as those of the APS draft MX Award would best serve the interests of the negotiating parties and the public interest.

PN2083

The rationale for that is set out in the written contentions and submissions lodged.

PN2084

Paragraph (d), how productivity might be improved in the business or part of the business concerned. The key feature of section 170MX(5) is the emphasis placed on productivity. The full bench should ensure, in our submission, the measures to improve productivity are included in any MX Award. In particular, we would point that he quantum of wage increases in the draft APS MX Award is predicated upon the productivity initiatives in that award being realised as part of the final outcome.

PN2085

As indicated in the evidence of Martin Studdert and Rene Terbogt, the APS draft award is an integrated package of inter-dependent measures. Therefore, if a wage outcome were to be granted without the underpinning productivity improvements it would seriously jeopardise the organisational and operational effectiveness of the APS and compromise its competitiveness. It would undoubtedly therefore, threaten the future viability of the APS and this would potentially have consequences for the job security of APS employees.

PN2086

The APS contends that the Commission should be cognisant to the composition of the APS draft MX Award. It provides for a significant increase in wages of 12.88 per cent compounded over three years, around 8.7 of that total is estimated by APS as a direct cost offset associated with changes to current terms and conditions of employment. A further substantial component of 3.8 per cent is not specifically linked to any such changes or particular productivity improvement initiatives.

PN2087

This latter component represents a significant real increase to wages which APS has calculated will be able to be funded from anticipated but unspecified productivity improvement. It is not possible to precisely quantify this prospective productivity improvement dividend. It is expected to be generated from the positive operational synergies that evolve from the implementation of the package of measures that comprise the APS draft section 170MX award.

PN2088

One expected improvement for example is in relation to employee relations and the employee relations environment generally and morale more generally after the MX award is made and provides a circuit breaker that places the experience of failed bargaining behind the organisation and we believe that it will assist in this regard. The evidence of Rene ter Bogt goes to the structure and derivation of the wage increases in the APS draft MX award in greater detail.

PN2089

Turning now to paragraph E which deals with the extent to which the conduct of the negotiating parties during the bargaining period was reasonable. The APS contends that its own conduct was at all times reasonable and that is has acted with utmost propriety in seeking to negotiate in order to reach an agreement or agreements that best suit the needs of both employees and the APS. This remains the preferred outcome for the APS. The CPSU conduct has been more indicative, in our submission, of an unreasonable stance on its part, which factor appears to have been a more likely contributor to the inability to reach agreement to date.

PN2090

A manifest degree of intransigence and inflated and unrealistic expectations by some members and delegates in particular also appears to be a contributing factor. In these circumstances the union leadership as then constituted gave the appearance of being overly constrained by this conservative stance and have been unable to demonstrate the leadership skills the situation demanded to achieve a responsible outcome. The appeal to the Commission through these proceedings would seem to us to provide a solution for the CPSU leadership team that could not be garnered from delegates, albeit if it may deliver a wage outcome worse than might be achieved through agreement.

PN2091

The CPSU has effectively, albeit perhaps inadvertently, painted itself into a corner in failing to reach agreement because rightly or wrongly it believed that MX would provide a better outcome for them. There are signs now that the union is having difficulty coping with some of the inflexibility that necessarily attends MX awards because of the special nature and role of such awards in the scheme of the Act. The APS and the Commonwealth would emphasise at this juncture that the CPSU should not be rewarded with an arbitrated outcome that is more generous than extant agreements in the APS lest it give cause for CPSU to adopt an MX course rather than a certified agreement route in other APS agencies. Indeed, this would be contrary to the scheme of the Act.

PN2092

If the CPSU members and delegates say that they don't want to reach agreement, that they don't want to do this even if it means that they get a lesser pay rise than might otherwise be the case, and if this is what represents the pivotal stumbling block or the impediment to bargaining, then it should be recognised for what it is. The conduct of the negotiating parties is a relevant consideration for the Commission in the context of section 170MX.

PN2093

So consistent with the submissions of the APS and the Commonwealth, it is clear that an MX award is intended to act as a circuit breaker for unsuccessful bargaining and to provide a platform for future bargaining. We submit that the MX award does this. In relation to the wage factors that the CPSU seeks to rely on, we submit that they're not relevant but will address them in more detail through evidence and further submissions. On the other hand the APS indicative sideways glance approach to broad wage comparators shows that the APS MX award quantum is broadly appropriate, noting the distinction in the scheme of the Act between bargained wage outcomes and MX arbitration.

PN2094

It is fair and appropriate, relative to the agreed outcomes in the lowest quartile of Australian Public Service agencies over the period and it will therefore provide a stable basis for bargaining and incentive for both parties to engage in future bargaining. Both the Australian Protective Service and the Commonwealth submit that if the Commission arbitrates, that the integrity of agreement making outcomes in the APS to date where around one-third of the total APS workforce, 250 of 700, is already covered by agreements, should be preserved. The integrity of those bargaining outcomes should be preserved.

PN2095

Any section 170MX award should be limited in scope to the classifications of operational staff not covered by agreements, that is protective service office grades. The two-thirds of employees who are not covered by any form of agreement are all employed in those classifications and this is an important point for the Commission to note in this context. All other classifications at the Australian Protective Service are covered by agreements. We would further submit that if the Commission arbitrates, that consistent with the emphasis and the primacy given to agreement making under the Act, that agreements reached today should be quarantined.

PN2096

SENIOR DEPUTY PRESIDENT CARTWRIGHT: By the way, that's no longer at issue, is it?

PN2097

MR O'BRIEN: There have been some recent developments.

PN2098

SENIOR DEPUTY PRESIDENT CARTWRIGHT: They're on the current draft.

PN2099

MR O'BRIEN: It may substantially have been addressed, your Honour, yes. I believe that might be the case.

PN2100

MS MOUNTFORD: With your leave, the clause is effectively agreed and there is only one further matter that has been added for a group of new potential employees to be excluded from the award and I think I said yesterday that I don't think it's possible under the Act.

PN2101

SENIOR DEPUTY PRESIDENT CARTWRIGHT: So it's largely not at issue.

PN2102

MS MOUNTFORD: Yes, absolutely.

PN2103

MR O'BRIEN: I will rephrase my submission, your Honour. To the extent it is a matter at issue then we would submit that they ought to be quarantined. Certainly the point we make is that an MX award in the terms of the APS version of the draft award would achieve this outcome. It would also importantly satisfy the key criteria identified in the evidence of Mr Studdert. In particular it would be affordable by the organisation or providing a fair and equitable outcome that meets the needs of both the organisation and employees, and it would deliver improvements to productivity and efficiency necessary to ensure ongoing viability and the APS's position for future growth. These objectives are clearly of mutual benefit to the organisation, management and employees.

PN2104

Improvement in productivity and efficiency and scope to grow are the key ingredients that will generate the capacity for future agreement making. For that reason it would also be consistent with the role and purpose of MX in the Act because it would provide the necessary breathing space for the negotiating parties and contribute thereby to an improved workplace relations climate, and it would also preserve the incentive necessary for them to engage in further bargaining. In our submission these are all very significant considerations for the Commission.

PN2105

In conclusion I would indicate or again emphasise that the rationale to the MX mechanism in the Act is to resolve the bargaining deadlock in a way that establishes a sound foundation and motivation to future bargaining. Again and in summary the APS draft MX award does this. It resolves in a fair and equitable way the key issues that have prevented agreement. It provides quantum that is appropriate in the MX context and relative to outcomes achieved through agreement making in APS and relative to bargaining outcomes elsewhere. It identifies issues for future bargaining and it provides a mechanism for parties to seek to implement any agreed outcomes from future bargaining.

PN2106

The particular mechanism that identify there is at APS clause 7.3 which simply provides that:

PN2107

Where the parties reach agreement they can make application to the Commission.

PN2108

As to what the application is is not specified but in our submission section 170MZ4 would be relevant in this context, and 170MZ4 provides that:

PN2109

An MX award can only be revoked ...(reads)... where revocation would not be against the public interest.

PN2110

So we would see that as a possible mechanism to implement any further bargaining during the life of the agreement.

PN2111

Importantly the APS draft MX award takes account of the matters already agreed and that's the value of the common document that the parties have been working on and tendered to the Commission. In our submission the Full Bench therefore should limit arbitration to matters not agreed in the common draft MX award and to support this proposition I would note the Full Bench view in Kurra which the Bench will find, I think it's number 7 in the list of authorities or the folder of authorities that we've tendered, and there the Full Bench found that the proper construction of what the Full Bench said in Westrail is and I quote:

PN2112

An objective assessment of the factors set out ...(reads)... what such an award should contain.

PN2113

Paragraph 51 of the APS exhibit 1 provides this quote in a broader context, addresses it in more detail. Another point we'd make or reiterate at this stage is that all of the criteria at MX5(a) to (e) are relevant and in the facts and circumstances of this case they provide strong support for an award in the terms of the APS draft.

PN2114

Again here I would direct the Commission's attention to APS contentions paragraphs 75 to 119 to deal with this issue. So in our submission in this context it is not the role of the Full Bench to engage in and I quote:

PN2115

Some form of subjective prognostication ...(reads)... concluded successfully by the parties.

PN2116

And the reference there is again the Kurra decision number 7 in the folder of authorities at page 31 of that decision. The earlier quote I might indicate was that page 23 of that decision.

PN2117

It is against that background that the APS and the Commonwealth submit that in exercising its discretion to make a section 170MX award the Commission should ensure that the award is consistent with the relevant provisions of the Act. The award does not disturb existing agreements for employees have exercised their rights under the Act. Looking beyond the immediate issues before the Full Bench that any award should provide a stable foundation for future agreement making under the Act.

PN2118

In our submission the draft PPS MX award does all of these things.

PN2119

Your Honour, members of the Bench, that concludes my opening remarks. May it please the Commission.

PN2120

MUNRO J: Thank you, Mr O'Brien. I note the time. I think the best course would be for us to resume the hearing at 10.00am on the 8th. At that stage I think it will be, could you just fresh us, the order of witnesses will be?

PN2121

MR O'BRIEN: Your Honour, I would propose to call Martin Studdart first followed by - what in fact I have to finish with Mr McDevitt I think is the first witness on that day. When we've done that and there's been re-examination in terms of APS evidence Mr Studdart followed by Mr Tabot, followed by Commander Gardner. On 8 May we will also have available the two external witnesses assuming the CPSU still wants them to be called, in fact we propose to call them. So on reflection those two witnesses might, I think, be appropriately called after Mr Studdart and before the other two APS witnesses that I've identified.

PN2122

MUNRO J: Very well, thank you. The Commission will adjourn until 10.00am on Tuesday, 8 May in Sydney.

ADJOURNED UNTIL TUESDAY, 8 MAY 2001 [4.06pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

VINCENT JAMES McDEVITT, ON FORMER OATH PN1435
CROSS-EXAMINATION BY NR O'BRIEN PN1435
WITNESS WITHDREW PN1672
JANET RUBY WATSON, SWORN PN1673
EXAMINATION-IN-CHIEF BY MS MOUNTFORD PN1673
EXHIBIT #CPSU7 STATEMENT OF JANET RUBY WATSON PN1677
CROSS-EXAMINATION BY MS MOUNTFORD PN1733
CROSS-EXAMINATION BY MR O'BRIEN PN1846
RE-EXAMINATION BY MS MOUNTFORD PN2043
WITNESS WITHDREW PN2055
EXHIBIT #APS 5 AUTHORITIES RELIED UPON BY THE APS PN2061