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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:(02) 9238-6500 Fax:(02) 9238-6533
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT DRAKE
C2002/2915
THE COMMUNITY AND PUBLIC
SECTOR UNION
and
AUSTRALIAN BROADCASTING
CORPORATION
Application under Section 170LW of the
Act for settlement of dispute re ongoing
employment status of an individual member
SYDNEY
10.11 AM, FRIDAY, 14 JUNE 2002
Continued from 5.6.02
Adjourned sine die
PN416
THE SENIOR DEPUTY PRESIDENT: Who have we got today?
PN417
MS MacBEAN: Your Honour, I only have two witnesses today and that is Ms Dasha Ross and Ms Catherine Shirley but before I call those two witnesses there were a couple of matters from last week that I thought I should mention. I did at the time cross-examine Ms Mullen on two emails that she had sent to Peter Dunn and Luke Caruso and I read them on to transcript but I didn't formally tender them as documents which I'd like to do this morning, that was one matter.
PN418
The other aspect, your Honour, it is a difficult situation I'm running the matter that had a conversation with Ms Mullen about employment matters and I'm not really sure how to get around that situation of me having to give evidence about the conversation in question only to the point of credit, it's not relevant to the facts, other than for credit. I made a diary note of the conversation that I had with her at the time.
PN419
THE SENIOR DEPUTY PRESIDENT: Ms MacBean, it happens quite regularly in unlawful termination matters that the person who is appearing for themselves, either for the employer or the applicant needs to give evidence and what I usually do is I have that person take the witness box, swear or affirm, give their evidence, are able to be cross-examined by the other side and then resume their seat. Do you want to do that?
PN420
MS MacBEAN: I do, your Honour.
PN421
THE SENIOR DEPUTY PRESIDENT: That is how we do it in unlawful matters when the parties are unrepresented or if both parties are simply making submissions from the bar table and there is no desire to cross-examine - Mr Hatter, do you wish to cross-examine Ms MacBean if she was to make such a statement?
PN422
MR HATTER: Your Honour, it really depends on what the statement was.
PN423
THE SENIOR DEPUTY PRESIDENT: All right, we'll see but sometimes I have both parties swear to the truth of their submissions and then because they tend to operate as a conversation rather than really as submissions, we take them as having sworn to the truth of everything they happen to say in their submissions that is a factual matter. But either way, in your case I think and Mr Hatter if there are matters that he might want to put to you, it would be better if you were to take the box, swear to take the oath or otherwise, then he could cross-examine you and then you can go back to the bar table.
PN424
MS MacBEAN: Thank you, your Honour, that clears that up.
PN425
THE SENIOR DEPUTY PRESIDENT: You had better tender these emails first.
PN426
MS MacBEAN: Yes. I have provided Mr Hatter with copies of those.
PN427
PN428
MR HATTER: Your Honour, so far.
PN429
THE SENIOR DEPUTY PRESIDENT: Yes, but on the last occasion, that was all.
PN430
PN431
THE SENIOR DEPUTY PRESIDENT: Yes, Ms MacBean, there was some evidence you wanted to give about conversations with the member?---Yes, your Honour, I had a conversation with Caroline Mullen before her last day of employment which was 31 May and I made a file note of that conversation which I wanted to read on to the transcript which would be my evidence.
PN432
Yes?---It says:
PN433
File note re Cassie Mullen. Received telephone call from Cassie Mullen in relation to her employment status. Advised Cassie that after review of information sent to me by Peter Dunn I had confirmed that the ABC regarded her as a fixed term employee and the evidence indicated that she had been engaged on three separate fixed term contracts for different divisions, performing different work and had negotiated separately the contract rate for each period. Cassie became upset and abusive and then said she wanted to know why she wasn't an ongoing employee and that as we were finishing up she should get a redundancy like everybody else. Cassie also said that she had been told by Luke Caruso that she was being paid a redundancy and that she had also been told that Tim Burrows had said she was an ongoing employee. I said to her that I was the person responsible for making the decision about the status of her employment and based on the information I had received I was of the view that she was a genuinely fixed term employee. She said that Peter Dunn was lying and that nobody had ever told her she was a fixed term employee and she would never have taken the job on the Wiggles had she been a fixed term employee and she insisted that she had been told by Luke Caruso that she was getting a redundancy. She said that she was going to the union and I said to her that that was her right and that she was free to do so but all I could do was make a decision based on the facts. She continued to be abusive and I said to her that I didn't give a damn about what other people had said, what I cared about was making sure that I gave her direct advice and that she understood the ABCs position. I then concluded the discussion and contacted Luke Caruso who denied telling Cassie that she was getting a redundancy and he forwarded me an email sent to him by Cassie Mullen that says she had three fixed term contracts.
PN434
That is the end of the file note.
PN435
That is your evidence?---Yes, your Honour.
PN436
Is there any matter you want to put to Ms MacBean, Mr Hatter?
PN437
MR HATTER: No, your Honour, that's fine.
PN438
THE SENIOR DEPUTY PRESIDENT: Thank you, Ms MacBean, you are excused unless you want to add anything.
PN439
PN440
THE SENIOR DEPUTY PRESIDENT: You have no further evidence?
PN441
MR HATTER: Your Honour, you suggested at the end of the last proceedings - - -
PN442
THE SENIOR DEPUTY PRESIDENT: That there might to be more evidence in relation to - - -
PN443
MR HATTER: It would be rebuttal evidence in my case now.
PN444
THE SENIOR DEPUTY PRESIDENT: All right.
PN445
Who do you wish to call Ms MacBean?
PN446
MS MacBEAN: Yes, your Honour, I wish to call Dasha Ross.
PN447
MR HATTER: Excuse me, your Honour, as a matter of procedure, I probably will be calling Luke Caruso if the ABC is not and he is actually in the room here, I'd like to ask, if he's going to be a witness he is not a witness to the rest of the proceedings.
PN448
THE SENIOR DEPUTY PRESIDENT: You are saying that you intend to call him on rebuttal.
PN449
MR HATTER: Yes, your Honour.
PN450
THE SENIOR DEPUTY PRESIDENT: It is just so that nothing arises, Ms MacBean, I think it would be more appropriate.
****
PN451
PN452
MS MacBEAN: Ms Ross, could you please state for the Commission your full name and address?---My full name is Dasha Ross and I'm at 24 Cox Avenue, Bondi Beach is my home address, at the ABC, Pacific Highway, Gore Hill.
PN453
What is your position with the ABC?---I'm currently an Executive Producer in documentaries.
PN454
How long have you held that position for?---I've held the position for almost, since the end of 1992, so that's almost 10 years, it's had various names but essentially, I mean, I've been a Deputy Commissioning Editor, I've been Executive Producer but it's the same job.
PN455
Did you in your role work with an employee called Cassie Mullen?---Yes, I did, yes.
PN456
What role was Cassie performing for you?---Cassie was employed as the assistant to - her title was assistant to the Commissioning Editors, I'm an Executive Producer, I was titled Deputy Commissioning Editor and there was a Deputy Commissioning Editor also in Melbourne, so there were two of us. Cassie principally worked to me, I was the one who interviewed her and selected her for the position.
PN457
That role was that an ongoing role?---Yes, it was.
PN458
Did you anticipate Cassie staying in that role with you?---Yes, I did, yes. I mean, in fact, we'd had a situation where her predecessor had only held the job for two and a half to three months and had been offered another position that she wanted to go to and it had been quite disruptive to have to suddenly find someone after such a short period and then train someone again. So in fact I had specifically said to Cassie that, you know, I was really hoping that she would be able to stay at least 12 months because it was important that we have a continuity in the position.
**** DASHA ROSS XN MS MacBEAN
PN459
Sometime after about eight months of Cassie performing the role with you did she come and have a discussion with you about another position in the ABC?---Yes, she did. I think actually it was shorter than that, I think it was six and a half months.
PN460
What did she say?---Cassie came to me and said that - she said, look I know that I said I would stay but I've been offered the opportunity of work as a production coordinator, it's something I really want to do because I really want to be involved in production and that she wanted to go to do this job and I was a bit taken aback and said, well - I was taken aback because it was after, you know, a relatively brief time from my point of view and I said, I needed to think about it and to discuss it with our business supervisor, Anne Skillicorn, because Cassie had said not only did she want to go to do this job but that it had a very fixed period because it was a production schedule and she needed to begin I think it was - she was giving just over two weeks notice which was a very short time. And I was just simply concerned that it wasn't going to allow me very much time to find an alternative. So at that point I said, look, I need to think about this. I then went and discussed it with Anne Skillicorn and we then invited Cassie to come and discuss it with us. And my principal concern was that, okay, if Cassie wanted to do this then certainly I didn't want to stand in her way. I was aware she'd been looking for other jobs and I was aware that she didn't want to remain in that position so that was something that I simply accepted. But I had to find an alternative and so I had to be able to think through what the best was going to be for our unit and it seemed to me that I had to replace her - - -
PN461
Did you say something to her about keeping her role open?---Well, I said to her that it wasn't going to be possible. I said, I explained to Cassie that it was creating a situation where we had to find an alternative but I couldn't keep that job open for her, that I needed to ensure that there was continuity in the unit. It took at least, you know, a month really to train somebody up so that they were aware of all of the components of the job and I said for that reason I have to think about what's best for the unit, I must have continuity. So if you decide you want to take this job there won't be a job for you to return to.
**** DASHA ROSS XN MS MacBEAN
PN462
What did she say to that?---She said, okay, I accept that, I will take the risk then of taking, you know, this other job which was for a period of 10 weeks.
PN463
Did you backfill the role that Cassie was performing for you? I mean by that did you temporarily fill it?---Well, I had to set about replacing her on a permanent basis but she'd given me so little time because Cassie was insistent that she couldn't stay longer. Because I said, was it negotiable? You know, would she be able to stay until I'd found a suitable replacement? And she said she had to leave by this time which was this - at the end of this two week period because that was the start of the production. This meant that I had to get somebody from an agency, a temp, and in fact we had to get two temps. So it was actually quite - it was difficult, actually, to be honest. It meant that there was a lot of disruption and to-ing and fro-ing and we just had to take that onboard. Because then I had to set about putting in place advertising the position, there had to be due processes gone through with regard to ABC as to how the replacement was going to be employed, by what division, because her going threw up a lot of questions actually about that particular position.
PN464
PN465
MR HATTER: Good morning, Ms Ross. May I call you, Dasha?---Certainly, please.
PN466
Are you familiar with the red book, the employment agreement?---Yes.
PN467
Can I ask you to just read a section out? Unfortunately I've only got a photocopy version for you, there's not many glossy ones left?---No.
PN468
It's actually 17.3. Could you just read 17.3, the title, then 17.3.1 to the Commission?---"A selection committee will be convened to assess applications received for advertised vacancies of 12 months or longer except where -"
**** DASHA ROSS XXN MR HATTER
PN469
Did you convene a selection committee?---Sorry, in relation - this is in relationship to whom?
PN470
Sorry, when you brought Cassie into documentaries?---Cassie was a different situation because she actually came to us on higher duties from another department for a fixed period, I think, of three months.
PN471
You said before that you wanted her there for at least 12 months?---That is what I would've liked, yes.
PN472
But there was no selection committee?---Not at that stage, it hadn't been convened.
PN473
Not been convened for, what, six months?---No.
PN474
Okay, so you intended to convene a selection committee eventually?---This was not something that was my decision. This was an employment matter that is handled by Peter Dunn and the business side and essentially what was going on was that there was discussions that I was not involved in at all as to how that position would operate within the organisation because there was once - - -
PN475
Sorry, Ms Ross, can I cut in? Where in the red book does it allow you to not have a selection committee if you're going to have an employee for more than 12 months?---Sorry?
PN476
Where in the agreement - I just asked you to read that part of the agreement there?---Right.
PN477
Where in the agreement can you employ somebody without a selection committee if they're going to be in the position for more than 12 months? This is sort of a back room deal?
**** DASHA ROSS XXN MR HATTER
PN478
THE SENIOR DEPUTY PRESIDENT: You don't have to keep repeating the question, I think it was perfectly clear, Mr Hatter.
PN479
THE WITNESS: Right. I'm not quite sure I understand.
PN480
MR HATTER: What I'd like to know - - -?---Basically what I said to Cassie was that it was my hope that she would be able to stay for up to 12 months, for at least 12 months. That was my hope.
PN481
So the employment - - -?---Now, the matter of actually the mechanics of the employment I don't handle that.
PN482
Did you refer Cassie on to a selection committee?---No, we hadn't determined that there would be a selection committee because there was a lot of discussion going on as to whether that particular position which was paid for by the television division would continue or whether there was another way that we would have that position employed for the unit. In fact what's happened since then is that Cassie was paid for by the television division as an assistant commissioning editor. It was then determined when she left that since I was no longer called a commissioning editor, I was an executive producer, therefore what was decided was that there would be a production assistant who would be hired and paid for by the resources division. So it's a sort of a - it was quite a complex chain reaction that occurred.
PN483
Would you say what was Cassie's employment status at the time when you employed her, when you brought her into documentaries?
PN484
MS MacBEAN: I think that's ..... isn't that right?
PN485
MR HATTER: Well, I'd like to know.
**** DASHA ROSS XXN MR HATTER
PN486
MS MacBEAN: ..... said that it was ongoing.
PN487
MR HATTER: I'm asking Dasha what she thought it was when she made representations?
PN488
THE SENIOR DEPUTY PRESIDENT: You have asked one question so you don't have to amplify your own question. If the witness pauses that may be because she's thinking of the answer.
PN489
What did you understand her employment description was when you hired her?---Cassie had been working on a program called "The Fat" and when I started to ask around informally as to who might be available to do the job I had been told by another business supervisor that Cassie had been looking for other employment opportunities, so - to be honest I didn't think in terms of what was her employment status. She had been working on this program called "The Fat", I was able to speak to someone who, the executive producer of the program, to find out whether or not he would be concerned if I was to offer her a job, would that cut across what he was doing, to ask, you know, how she was at conducting the work that was required of her. I was more concerned with those aspects.
PN490
When you appointed her did you know what her status was?---I understood that she had been working on this program.
PN491
No, not what work she had been doing, but what her employment status was? Did you know whether you employed a permanent ongoing employee or a part-timer, or a fixed term contract person? Did you know what her status was?---I didn't, I mean, I understood that - - -
PN492
What's the answer, you did or you didn't?---I didn't.
**** DASHA ROSS XXN MR HATTER
PN493
MR HATTER: And you were bringing her in from another area of the ABC?---Yes.
PN494
We you uncomfortable doing that to another line manager, taking their employee away from them?---Well, I specifically called the executive producer of the program to say that I had understood that Cassie was interested and how did he feel about that. Was that okay.
PN495
Is that an isolated case? Is that the only time that you, or somebody in the ABC, would ring up another line manager and ask if you could take their staff member?---I can't answer for other people, I mean, it's what I did because I thought I have a good relationship with the executive producer, I thought it was a good idea.
PN496
You mentioned before that Ms Mullen was in HDA, I think?---Was in?
PN497
HDA, you said higher duties, sorry, she was in higher duties?---Yes.
PN498
What does that mean? Can you explain what that means to myself and the Commission?---Well, she was brought across on higher duties, she was paid more money, and yes, that's what I understood.
PN499
Was she acting in the role though, in your role, or did you foresee her to be there forever or was she in fact the status - - -?---Well, nobody - one of the things that I have had to accept is that nobody is in those positions for ever. I mean, it's a job which people do because it enables them to gain skills and contacts to go on and do other things either in or outside of the organisation. So, I mean, I accepted that these jobs are done for a period of time. Generally in my experiences they are done by young people who are accruing as much experience as they can to develop a career path.
**** DASHA ROSS XXN MR HATTER
PN500
You're right, so young people move around in the ABC to gain experience, that's part of the ABC culture?---Well, not just in the ABC. I mean, they - we have had people come from outside and sometimes they move on to other organisations also, and other places. It's a job which allows them - because we deal specifically with the independent production industry it gives them a very wide and broad range of contacts. So they may or may not stay in the ABC because they are meeting people, they are forging, you know, alliances that can serve them quite well in terms of developing a career.
PN501
And those contacts can also be within the ABC, within the individual production units, like say, another EP and another production unit, make a contact - - -?---Sure, sure, sure.
PN502
Sure?---I guess that's the trade-off on the jobs. You know, the job in itself is procedural, it's desk bound, it's acting as the front of house, if you like, for our unit. They are having to deal with the public as well as our client base. So a lot of that is, perhaps for people who want a career in production, isn't the most rewarding but the trade-off is that they get to understand and learn a lot about the processes of production.
PN503
That's one of the attractions of that particular job and making contacts, like we were saying?---Mm.
PN504
THE SENIOR DEPUTY PRESIDENT: I'm not sure where all of this is taking me, Mr Hatter, it's fascinating to the operation of the ABC and should I have some - - -
PN505
MR HATTER: Your Honour, this is actually going to rebuttal evidence itself.
PN506
THE SENIOR DEPUTY PRESIDENT: All right, as long as it's going somewhere, because whilst it's interesting background I'm not sure it's determinative yet of the matter I have to decide.
**** DASHA ROSS XXN MR HATTER
PN507
MR HATTER: When you said Cassie came to you, we thought it was eight months, but about six months, and wanted to go to The Wiggles you said you were reluctant to let her go, is that correct?---Well, it's not that I was reluctant to let her go. It's more that it's something that I had to suddenly take on board and think, okay, how am I going to resolve this, because I hadn't been expecting it. While I had been aware that Cassie had been interested in seeing if there were other opportunities for her. I was certainly aware of that. So it wasn't unexpected, it's more that when something actually - when somebody actually tells you that they want to leave, you know, it's like, my gosh I've got to find a solution quickly, and also I felt pressured because there was this very defined time period. So in other situations that I have experienced it can be a little flexible with a week or two in terms of people going to make sure that there is someone found that can replace them and they can do a hand-over. This was very immediate, you know.
PN508
Would you have let her go the next day, or you had put some conditions, you said, "Look, wait until I find somebody", was that not true?---I asked if that was negotiable. I said, you know, "This is a very short period of time, is there a week that we can look at?" And she said no.
PN509
All right - - -?---Well, she said, "Look I really, really want to do this job. I really need to be able to start, it's a production" and so that's when I realised that it wasn't in her interests, it wasn't in my interests to enforce something.
PN510
Sure. Now, when you did let her go did you tell her that she would no longer be with the ABC at the end of The Wiggles gig?---No, I said, I mean, I can't speak for the ABC. I said, "Please understand that we will have to find a replacement for you. If you choose to leave there won't be a job for you to come back to here".
PN511
A job in the ABC?---In Documentaries.
PN512
Documentaries - - -?---I can only speak about Documentaries.
**** DASHA ROSS XXN MR HATTER
PN513
Yes, sure. Thank you, your Honour.
PN514
MS MACBEAN: Nothing further, your Honour.
PN515
PN516
THE SENIOR DEPUTY PRESIDENT: Next witness.
PN517
PN518
MS MacBEAN: Thank you, Ms Shirley. We've been fairly informal in this matter so I hope you don't mind if I call you Cathy?---No, that's fine.
PN519
Cathy, can you state for the Commission your full name and address?---My name is Catherine Anne Shirley and my address is 12 Kywong Avenue Pymble.
PN520
What's your current position?---My current position is that I'm a freelance producer for my own company.
PN521
And prior to that what were you doing?---I'm a bit of a portfolio worker. Earlier this year I was working as acting manager of production and development at ABC TV.
PN522
How long did you perform that role for?---Approximately two months; it was February/March 2002.
PN523
Prior to that had you had employment with the ABC?---Yes, I had, yes.
PN524
How long had you been employed by the ABC?---I was employed by the ABC for 23 years between 1973 and 1996.
PN525
In what capacity were you employed throughout that time?---I started my employment as a producer's assistant and I then went through from producer's assistant to program officer which was researcher, interviewer and director, then I moved to the designation of producer; I was a producer for about 5 or 6 years and then I was a series producer and then after that time I was producer/coordinator which was the previous designation, exactly the same type of job that now the current manager, production and development, staff, is at the ABC so it was the same job.
**** CATHERINE ANNE SHIRLEY XN MS MacBEAN
PN526
And that role is currently performed by Mr Peter Dunn?---By Mr Peter Dunn, that's right.
PN527
Now, when you were acting in Mr Dunn's position did you have any involvement in The Wiggles production?---I'm assuming that that is the one - - -
PN528
I'm sorry, I should be more accurate. It was The Wiggles production that commenced in March 2002 and concluded on 31 May 2002?---Okay. No, I didn't have - a program department of any type within the ABC will usually come to, and I'll say in this circumstance, my office and request staff. In this particular circumstance they didn't come to my office to request staff so, therefore, there was no involvement in staffing up for that production prior to that time. There was eventually a commissioning process that went through that what they had done is find their own staff, they've made their own arrangements.
PN529
Can I just show you a bundle of documents; these are documents that have been tendered in these proceedings by the union. Are you familiar with what those documents represent, if you'd like to have a look through them. Are they all expressions of interest?---I believe so.
PN530
They are expressions of interest?---Okay.
PN531
No, I'm asking you, are they?---Yes, yes, yes, certainly, yes, they -this is an expression of interest and my question is, are they all expressions of interest? It looks as though they are.
PN532
Did you cause for one of those to be created/generated in relation to a production assistant's role in The Wiggles?---No.
**** CATHERINE ANNE SHIRLEY XN MS MacBEAN
PN533
Did you come to know Ms Cassie Mullen in your capacity as acting in the role?---I didn't actually know Cassie but that could be because I was acting in the position.
PN534
Did you become aware of her?---Yes, I became aware of her. I didn't know her initially. She made herself known to me when she had - she had initiated her move from an admin assistant's position in TV documentaries to The Wiggles unit so she rang me and said that she had found herself a job within that unit and that she wished me to facilitate her move. I was a little taken aback because, you know, usually - it's not quite the way it should be done and usually somebody should come to my office and discuss their career aspirations, where they want to go, what they want to do and, you know, there is a bit of a procedure in place there which protects everybody's interests at the best of times.
PN535
So are you saying that Cassie had scouted, if you like, this job for herself?---Yes, she had.
PN536
And you didn't have need, therefore, to create an expression of interest?---I didn't know the job was going, basically.
PN537
Right. When Ms Mullen came did you have a number of conversations with her about The Wiggles production job?---When she said she wanted to move the main concern of hers was that she needed to move very quickly, that she'd found this job and she wanted to move very, very quickly and she wanted me to facilitate that. There was a bureaucratic problem in the background which was causing her some anxiety and the bureaucratic problem was caused by the fact that we didn't know who was going to be paying for that position. That was impeding her progress from one position to another which she became quite upset about. I said to her - no, I'll just go back on that a little bit - every day I would sit and discuss issues to do with that particular job with Mr Peter Dunn. Because I was very aware of the fact that I was only acting in Peter's position for, you know, sort of a very short term he was aware of the issues in the workplace and I didn't want to do anything that he wouldn't approve of and
**** CATHERINE ANNE SHIRLEY XN MS MacBEAN
that was going to cause him grief eventually. When I said to him that Cassie had rung me and had said that she wanted to move he said to me, you must point out to her that this could endanger her, you know, sort of eventual career prospects within the ABC or in fact her longevity in the ABC because there is no doubt, you know, we will not - there will possibly - there is a great possibility that there will be no work at the end of this period of time if she moves from that position that she's in right now.
PN538
Did you convey that to Ms Mullen?---I did, yes, that was one of the very first things I actually said to her.
PN539
Can you just tell the Commission what you said to her?---I said virtually that type of - those words. I said to her that in my opinion and my experience and with the instructions that I'd been given previously by Peter Dunn that she would be endangering herself, that we were coming into the fourth quarter of the financial year, that was historically from my point of view, the most dangerous time of the year to actually be taking a risk like this and that, in fact, she would, you know, that because this was only sort of seemed to be like a very short term production type assignment and she was going to be leaving a longer term position which, you know, wouldn't be endangered at all it was of concern to me that she did know and she did understand that her employment, you know, could be at risk.
PN540
Did you use those words "your employment could be at risk"?---Yes, and her feeling - or at least what I was concerned about when I was - when I first said that to her was that she didn't appear to actually take it on board, she didn't appear to want to take it on board.
PN541
What gave you that impression?---She was quite angry and irritated quite basically that there was a - what she thought was a bureaucratic problem was impeding her career progress. To me that seemed to be the smallest problem at the time, you know, as to somebody was going to go from point A to point B. I could see if a production unit wanted someone and if the person themselves wanted to go that in my experience is one of those things that kind of just is a bit of a lay down sort of misere type sort of thing. It just actually happens. It is unstoppable, but what is not unstoppable is if the person is not going to have
**** CATHERINE ANNE SHIRLEY XN MS MacBEAN
a job at the end of it, and because she was moving from an admin position to a production position and it was a short term production position, I was worried and concerned that she actually wasn't taking that information onboard and didn't want to take it onboard. She was quite - it seemed to me that she was quite determined as I must say so many other people are within the work place, that she was going to move to production because that's where she wanted to be and she was quite prepared to take that risk.
PN542
And did she say something to you about her view of what you told her?---I can't remember her exact words, but it was something along the lines of, well, you know, as far as I'm concerned I just want to get there and I want to do the job I can and all the rest of it, it will just all happen and it is all going to be okay in the long run, and it was a bit like, don't give me grief about it I just want to go you know.
PN543
And when you say you've had this conversation with her about explaining to her that her employment prospects, that there was a life span on that, how many conversations did you have?---I mentioned it to her as part of other conversations, not as self contained conversations, as part of other conversations on about three occasions.
PN544
Right, and you are in doubt about what you were conveying to her?---That's right, I am in no doubt.
PN545
PN546
MR HATTER: Cathy, do you mind if I call you Cathy?---That's fine.
PN547
I actually didn't realise you were no longer at the ABC at the moment, but at the time you were acting in Peter Dunn's role, which was production - sorry - what was it?---I was acting manager production development staff, yes.
**** CATHERINE ANNE SHIRLEY XXN MR HATTER
PN548
Okay, and what part of the ABC does your authority cover there?---That area is - I'll just have to get this right. It has changed so much since I was there. It is now in the area of production resources.
PN549
What about when you were there - sorry?---When I was there it was part of the New South Wales branch.
PN550
And you could what, hire and fire, which areas of the ABC?---Basically the production staff.
PN551
Production, not radio?---No, no, television.
PN552
Only television?---Yes.
PN553
What about in enterprises?---Essentially that area supplies staff so that - - -
PN554
Sorry, I mean like admin position in enterprises. Could you employ somebody into that position?---No, admin.
PN555
Why not?---No, no, because basically it is production staff. So, this is where - it is sort of a, kind of a grey area but it is not really. That position looks after - it doesn't look after PAs and it doesn't look after admin staff but it looks after - - -
PN556
Sorry, PAs, is that production assistant, sorry?---Yes, sorry, it doesn't look after DAs. It looks after researchers. Production assistants are a very sort of like gray field, they go across different areas but yes, researchers, production assistants, producers, directors, I think it is - I don't think they have carriage of production secretaries at this stage, because they are mainly admin staff. Yes, the admin staff. So, Cassie was actually, she was an admin assistant with TV documentary department.
**** CATHERINE ANNE SHIRLEY XXN MR HATTER
PN557
Right, because my question was, what was the coverage of the position?---Well, okay, so we didn't have - I didn't have coverage of her before. She was seeking to actually be covered by my area and then be assigned - - -
PN558
She was coming into your area?---Yes, that's what she had organised for herself. By organising to go to work in that production area, she was, therefore, seeking to come into - - -
PN559
Into your area?---That's right.
PN560
She became in a production unit - an admin person in the production unit. I think there is - I think you said production secretaries. Would that be your area or is that somebody else's area?---No, no. As far as I'm concerned - - -
PN561
So you are not in charge of all production units then, or you wouldn't have been at the time? Every staff member is in a production unit. There are some which may not be within the - - -?---That's right, yes.
PN562
So, when you were talking to Cassie, how were you talking about - for the ABC - how were you actually talking about radio and enterprise - - -?---I wasn't talking about - I wasn't talking about - - -
PN563
You were only talking about production?---Television production.
PN564
Television production?---That's right.
PN565
So when you said employment - - -?---Yes.
PN566
You meant production?---I meant television production.
**** CATHERINE ANNE SHIRLEY XXN MR HATTER
PN567
Not the ABC itself?---No.
PN568
Right, okay. Did you make that clear - I mean, would Cassie think about - did Cassie think you meant the ABC altogether?---We didn't go into that indepth.
PN569
Right, you didn't go into it, okay. What was Ms Mullen's employment status when you were actually talking to her, do you know?---As far as I was concerned she was employed as an admin assistant, outside my area, so I don't know what her employment status was.
PN570
That's all. So, she could have been fixed - she could have been casual, at the time, before she came into your area? She could have been ongoing status?---I don't know.
PN571
You don't know, okay. So when you said to her then, you know, you're in danger of having your employment - you've not only meant it is not within production but that you didn't know whether or not she could have been a casual on an hour-to-hour basis; you didn't know whether or not she was a full time employee?---I'm pretty sure she wasn't - I know she wasn't a casual because she was - - -
PN572
Fixed term then with a starting and end date?---Usually if somebody comes to me and says they have just - had just organised themselves somewhere, we wouldn't actually have gone into it at that stage, no.
PN573
So when you were saying that to her you weren't sure though whether or not she was an ongoing employee with the entitlements of an ongoing employee, that means potentially - - -?---I was told - - -
PN574
Redeployment, redundancy?---I was told by Peter Dunn, at that stage, that she had a position as an admin assistant within TV documentaries. I don't know whether that was for a year, for 2 years or you know, or what status that was, but I was told that that is where she was and that by moving to a shorter term position like that, that that would and could endanger her career and future in the ABC.
**** CATHERINE ANNE SHIRLEY XXN MR HATTER
PN575
But when you were talking to her, you were talking about only production, of course, and you didn't know her status; you've already said that to me?---Yes.
PN576
Excuse me for a second?
PN577
Just on another note, you were talking about how you can't stop people moving from production units to production units. Like if somebody wants somebody, it is pretty much it. You were asked about expressions of interest, and you were asked whether or not that - you actually made an expression of interest happen for that particular Wiggles job. They were all movements - staff movements from production units governed by expressions of interest that are on email or other form?---I'm only talking about a very defined period of time here, which is only a couple of weeks.
PN578
You answered that question, yes?---Yes.
PN579
So in that time?---Mm.
PN580
Is it possible for somebody - one production unit manager to call up another production unit manager - - -
PN581
MS MACBEAN: Sorry - - -
PN582
THE SENIOR DEPUTY PRESIDENT: Do you have an objection, Ms MacBean?
PN583
MS MACBEAN: Yes, I do, your Honour. The witness has said that she has limited experience, that she was fulfilling that role for a period of 5 weeks. I don't know that she would have the experience.
**** CATHERINE ANNE SHIRLEY XXN MR HATTER
PN584
MR HATTER: Your Honour - - -
PN585
THE SENIOR DEPUTY PRESIDENT: She can say - this amount of conversation. I think given her history, the previous history, she can indicate whether she has sufficient experience or not. Yes, continue your question?
PN586
MR HATTER: Sorry, your Honour, I've forgotten my question.
PN587
Is it possible for one production unit manager to call another production unit manager on the phone and say, look, you've got an employee there that I might need and an upcoming one. Is it okay if I take them and for that to happen?---There are informal ways of inquiries being made and people, of course, because it is a community of people, people do talk to each other in canteen queues and do find out what is going on. It doesn't mean that that is the correct procedure though.
PN588
No, no, I'm not asking you if someone has done the wrong thing?---And I can make the whole procedure kind of break down kind of break down really badly.
PN589
Sure but there is an informal structure. What I am getting at is that Cassie did find out about the Wiggles role somehow?---Mm.
PN590
She didn't just bunk into it. Someone has informed her of it, or told her, look, we're looking for somebody, and that can be possible outside of even the - - -?---Sure.
PN591
Expression of the interest regime which is informal itself?---Yes, sure.
PN592
You know what happened, I don't know you may not have still been at the ABC at the time. As I said, I didn't know you were still there. Do you know what happened to the other people in the Wiggles production, co-production after, you don't know?---No, not at all.
**** CATHERINE ANNE SHIRLEY XXN MR HATTER
PN593
Hypothetically, what would normally happen to people at the end of a production, like an 11 week production, who are working there that are ongoing employees?---Hypothetically, well it depends on how they were brought on and where they came from. If they were brought on from outside they would be on a fixed term - - -
PN594
Outside, like from another company or from the ABC?---If they were brought on from outside the ABC completely as a production person they'd be given a short term contract which would define the period of time and at the end of that period of time, those people if they were from outside the corporation they would cease to be employed by the corporation at the end of - - -
PN595
What if they were from within the corporation somewhere?---If they were from within the corporation, well it depends on their status in the corporation.
PN596
If they were an ongoing status?---If they were ongoing, okay well for instance looking back on previous experiences if there was a producer who had been a member of the ABC for a considerable length of time and was considered ongoing within the producer pool, within that area, then that person would in fact just revert back to the pool after that production finished awaiting their next assignment from the - - -
PN597
But somebody from outside - - -
PN598
THE SENIOR DEPUTY PRESIDENT: Let her finish, Mr Hatter, she hasn't gone through the various categories as I understand it.
PN599
MR HATTER: I've got a terrible habit of that, I'm sorry, your Honour.
PN600
THE WITNESS: If the person was from another area and they'd been assigned to the pool, then they would usually go back to that area. Can I say, sorry - - -
**** CATHERINE ANNE SHIRLEY XXN MR HATTER
PN601
No, I'm finished, thanks.
PN602
PN603
MS MacBEAN: I think in your evidence, Kathie, you gave evidence of a discussion that you had with Cassie and I just wanted to clarify whether you used the words, that by accepting the short term position she would be jeopardising her career and future in the ABC, did you use those words?---Yes.
PN604
You were asked some questions about what would happen if an ongoing employee took a short term position and you gave some hypothetical situations. If I put to you a situation where an ongoing employee leaves an ongoing role, sources for themselves a short term position and before accepting that position is told that they may be jeopardising their career and future in the ABC because there would be no guarantees of work after that and they took that position, what do you think the position would be in that circumstance?---It would very much depend on whether there was a job waiting for them to go back to. In this circumstance, Cassie had indicated to me and also as I understand it, she said to me that she'd told Dasha Ross that she had no interest in going back to work in that area again. Dasha then felt that - and this caused a huge amount of trouble at the time. People trying to pull out all stops to facilitate Cassie's move and career enhancement. Dasha felt at the time that - - -
PN605
MR HATTER: Can I make an objection, your Honour?
PN606
THE SENIOR DEPUTY PRESIDENT: You can.
PN607
MR HATTER: Are we talking about somebody else's conversation to somebody else here? You said that Cassie had indicated to Dasha - - -
**** CATHERINE ANNE SHIRLEY RXN MS MacBEAN
PN608
THE WITNESS: Cassie indicated to me and also told me that she'd spoken to Dasha about it. So Cassie has told me of this conversation. That she didn't want to go back and work in TV documentaries. She didn't want to go back to work as an admin person. Our challenge therefore was to actually move her to enhance her career at that time. She had made it very, very clear to me that she wished to actually belong to the production sector. By that she meant to actually be involved in the day to day creation of product. She was not interested in administrative work as she said to me, she was not interested in being somebody's secretary and she saw this as being exactly where she wanted to be. She'd been in that position. She'd been a production person before. She wanted to go back to production again and she saw that as being her future. Based on all of that we then had to move heaven and earth to then put out, to actually find other people to fit in behind her, to fill in behind her when she left that position and she told us she didn't want to go back to it.
PN609
MS MacBEAN: No further questions, your Honour.
PN610
PN611
THE SENIOR DEPUTY PRESIDENT: Your next witness is?
PN612
MS MacBEAN: We have no further witnesses.
PN613
THE SENIOR DEPUTY PRESIDENT: Do you have some witnesses in reply?
PN614
MR HATTER: Your Honour, can I ask for a 20 minute break?
PN615
THE SENIOR DEPUTY PRESIDENT: Yes. In fact I'd like a cup of coffee myself. You can give me a call in chambers after 11.30 am when you are ready. I have no other matters listed today. The number for chambers is on the extension out there is 2577.
SHORT ADJOURNMENT [11.11am]
RESUMES [11.45am]
PN616
THE SENIOR DEPUTY PRESIDENT: Yes?
PN617
MR HATTER: I think it was over to me, your Honour. You ask me to present evidence, your Honour?
PN618
THE SENIOR DEPUTY PRESIDENT: Yes, if you wish to call any in reply.
PN619
MR HATTER: I've decided not to call any witnesses in reply, your Honour.
PN620
THE SENIOR DEPUTY PRESIDENT: So, simply submissions?
PN621
MR HATTER: No, I have some documentary evidence. I'd like to submit a transcript, your Honour, which is an exert of a past information centre provided to the ABC staff highlighting major change in employment practices that applied in 1992. Your Honour, the reason I'm doing this, so everyone has an idea, is that the ABC prior to 1992 actually had very much Public Service orientated employment practices where owned jobs and there were permanent officers.
PN622
THE SENIOR DEPUTY PRESIDENT: Give me the document first, so that my associate can sit down.
PN623
MR HATTER: I'm sorry. Your Honour, it's actually a transcript of an audio tape which was made in public for the use of anyone who wasn't able to be at the information session in person. I have the tape with me now and I will also tender it if the Commission wishes to hear it.
PN624
THE SENIOR DEPUTY PRESIDENT: I am happy to hear anything you say that you want me to take into account. If you want to tender the tape and you want to ask me to listen to it as part of the evidence, then I'm happy to do so, it's a document of the ABC but has Ms MacBean had an opportunity to check whether the exert is accurate?
PN625
MR HATTER: That was my concern, your Honour.
PN626
THE SENIOR DEPUTY PRESIDENT: Why don't we take it with the extract and Ms MacBean you can listen to it, if you think there is anything inaccurate in the transcribing of the tape, then you can indicate at a later date and I'll hear from you about that, that will shorten the matter.
PN627
MS MacBEAN: Absolutely, your Honour.
PN628
PN629
MR HATTER: Your Honour, I wish to read it into transcript.
PN630
THE SENIOR DEPUTY PRESIDENT: Yes, please do.
PN631
MR HATTER: As I said, it is an exert of a tape of Colin Palmer, now director of the, Executive Director I think it's called, of Human Resources ABC made of the information session given to feature staff on 21.9.92. The information session was centred on a major shift in employment practices at the upcoming EBA he represented, so he was just informing staff what the major change really represented and so, I'll read from it. So Mr Palmer said:
PN632
Where we've got somebody who we have a fixed term position, whether it's behind maternity leave, long service leave or someone is ill, whatever, we can advertise a job if it's over six months in duration or not and go through the same conditions as if you're filling an ongoing job and put somebody into it on that basis the appeal rights are identical. We are not talking about your tenure, we are talking about a fixed term job which you might be doing, once that is finished you go back to your old job. So, that's probably the only remnant that's left of the old permanency where you do higher duties or what have.
PN633
This is the interesting bit:
PN634
Once you've been there for a certain period, the whole idea there was to free up systems where under the old permanent structure you could be out of a department literally for years but be holding up people's progress simply because the job was filled or owned by somebody who had never been there for years. So they couldn't advertised a job unless the person volunteered to go on an unattachment and it just go too cumbersome that your career couldn't progress because somebody who is now in Outer Mongolia or Alaska for the last five years but still own the position, back here was holding your ownership. The ownership of positions is gone, totally abolished.
PN635
So, that is that, your Honour. As I said, if we'd like to hear the rest of the tape there is no problem.
PN636
THE SENIOR DEPUTY PRESIDENT: No, I will only listen to the tape if there is some dispute about that extract and I'll wait for Ms MacBean to have listened to it and notified us.
PN637
MR HATTER: Your Honour, the other comment with actually dispensing with the tape is that it is our only copy and it is not in very good repair and I just fear that it may not come back in the same repair, not that the ABC would destroy it. I'd like it not to be deleted.
PN638
MS MacBEAN: I'm happy to listen to it at the union's offices, if that is a concern.
PN639
MR HATTER: I wish to also tender a letter from Mr Palmer dated and signed on 19 July 1994 which further enforces his comments in the transcript and points out mind set when offering an employee a short term role. In particular the very last paragraph, your Honour, I would like to read in.
PN640
PN641
MR HATTER: Your Honour, if I may read the second-last paragraph:
PN642
You also indicated that there was advice allegedly given to the effect that ABC staff would have to resign to go on to a contract if chosen for such an overseas appointment. While this was a procedure in previous years before the ABC PSU Employment Agreement of 1992 was ratified, this is no longer the case. There is no reason for the ABC to request a staff member to resign from the ABC in order to accept an overseas fixed term posting.
PN643
That is the last of my evidence, your Honour.
PN644
THE SENIOR DEPUTY PRESIDENT: Thank you. It is your application, do you wish to make submissions now?
PN645
MR HATTER: Thank you, your Honour.
PN646
THE SENIOR DEPUTY PRESIDENT: I will order a transcript of the proceedings for both parties.
PN647
MR HATTER: Thank you, your Honour. Your Honour, while Ms MacBean only two weeks before our initial hearing said Ms Mullen's employment was in fact fixed term, it's been established that she is of an ongoing status at the ABC in these proceedings. Furthermore, your Honour has indicated that Ms Mullen did not become fixed term when she moved into the Wiggles job.
PN648
The issue before the Commission is simply: did Ms Mullen or the ABC sever her ongoing status with the ABC when she took the short term role. Did she change her employment status by knowingly move from one, an unsubstantial position and Ms Skillicorn is on record saying that Ms Mullen was acting in it and so is Ms Dasha Ross which was to be back filled to one of the many positions that are constantly on offer to employees at the ABC.
PN649
She was told that the position wouldn't be held for her and she knew she was going into a position that was only set to last for 11 weeks. A representative from Production even told her over the phone that Production was under no obligation to find her work in Production. The fact of the matter though, your Honour, is that Ms Mullen had no intention, nor is there a facility for it in the agreement, of changing her employment status from that of an ongoing employee.
PN650
We heard from Ms Mullen's testimony that she at no time expected her employment to cease on 31 May 2002, she expected like everybody else in the corporation that she could answer the calling of a short term role without fear of losing her status of an ongoing employee. The question must be asked: why would somebody knowingly resign a permanent position in the television industry, lose access to further short term stints in Production Units, lose access to training and lose access to contacts as Ms Shirley referred for an 11-week role.
PN651
Ms Mullen wanted to stay and move into production, and she did not want a job in administration over production, but she did wish to stay within the ABC and she was quite willing to stay in an admin position, if it allowed her to seek further work in television, and make contacts in production.
PN652
Ms Mullens has only received one contract in writing since starting her career at ABC, the initial 5 week 6 term contract she signed. From that point on, she has relied on a succession of verbal contracts in an organisation that normally relies on issuing written contracts. ABC management did not explain to her when she took her role at Documentaries that the role would be in fact ongoing, not what it meant to her and the ABC to be ongoing rather than fixed term. You see, the ABC simply made a demand of her that she stays for at least 12 months in the position, and let Ms Mullen rationalise what no end date meant.
PN653
Eight months later Ms Mullen, or I think 5 months later, Ms Mullen heard about an opening in another area of the ABC, The Wiggles production, and sought leave to apply for it. She went to her management before she walked off. A condition of leaving was placed on her by her managers, Ms Skillicorn and Ms Ross, that she would have to find a replacement before she could go. They also told her that they would have to backfill the position internally. At no time was Ms Mullens told that her ongoing appointment with the ABC would cease.
PN654
We have heard from Ms Skillicorn's testimony that Ms Mullens was not told at the time that she would not have a result at the ABC as a result of the move to The Wiggles. Ms Skillicorn is on record as saying, "I never told her, I never told her she was not going to be at the ABC". The fact of the matter is that the ABC did not, at that time, classify Ms Mullens as ongoing anyway, so any representation about leaving the ABC would have been flawed. They did not know, your Honour, that - no-one knew exactly what her employment status was, so when they said you will no longer be at the ABC, or in production, they could have been talking about her as a fixed term employee, they didn't know.
PN655
Ms Mullen at this stage was deciding to follow a well-worn path at the ABC since at least 1992. She was going to take on another role, short term or not, to further her career and to help the ABC through the short terms skills shortage. She did so in the full knowledge that the role she was acting in would no longer be available to her. The ABC asserts that Ms Mullen was acting in her last position, that was Ms Skillicorn's testimony. The very fact that she was acting in the documentary position surely means that the position itself may not be hers forever. How could the ABC say that she left an ongoing position and went into a short term position, and thus changed her employment status, when the original position wasn't necessarily ongoing for Ms Mullen.
PN656
She also moved with the confidence of what the executive director of Human Resources at ABC believes now, and informed her 10 years ago. Gone are the days that your tenure is attached to the job that you own. Instead, for want of greater flexibility in employment packages, employees at the ABC are deemed to be ongoing fixed term, casual or probationary in status, not in the position they held.
PN657
While we are on the subject, your Honour, I would like to clarify the change that occurred back in the early 90s. Prior to the certification of the first agreement, the ABCs employment was an exact mirror - I've already said this, but an exact mirror of the then Australian Public Service. Employees would win a job, which was theirs until they left it through the normal means. As Mr Palmer lamented in the excerpt we hear earlier, or you heard from me, officers could go off to non-permanent areas of the ABC and not come back, but still have claim to their original position. Officers would always be attached to a substantive position unless it was to leave it for various reasons, and the officer would be deemed unattached.
PN658
They would then be able to find another role in the ABC, or eventually found to be redundant. Since '92, ABC has relied on a more modern form of employment, one which suited the fast moving and dynamic industry set that it operates in. The ABC preferred the flexibility of having ongoing staff it could move around without the rigidity of the idea of ownership of positions. The union also agreed to the changes, as it meant job security for our members insofar as a member's ongoing status would go - would no longer mean that the ongoing status of their jobs did, that members could find other work more easily.
PN659
So that's part of the policy that exists now, at the ABC today, that you don't own a position. Rather, that you are deemed ongoing and work in a position otherwise you are potentially excess. Ms Mullen was making her decision while immersed in this ABC culture, your Honour. The agreement of course reflects the culture of flexible movement of staff, and the agreement allows for the waiving of the selection. Your Honour, I want to read something out of the agreement, do you have a copy with you there?
PN660
THE SENIOR DEPUTY PRESIDENT: Yes I do.
PN661
MR HATTER: The agreement does reflect the flexibility of staff. The agreement even allows the waiving of the selection committee process, or otherwise merit selection part of the selection, of the selection committee process, and that's at line 17.3.1(b). The position has been identified by the ABC for the appointment of an employee under a fixed term appointment, and that's the end of the first clause of the sentence, your Honour. So the ABC allow themselves to move people around if they are potentially excess, or they have been in a fixed term job, your Honour, it's in the agreement, and for the potentially excess in (c), the employees to be redeployed to the position in accordance with sub-paragraph 22.6.3(c), and your Honour sub-paragraph 22.6.3(c) is the redeployment section of the redundancy clauses.
PN662
Of course, the ABC asserts its rights to utilise the flexible work arrangements available post '92, and it does it in section 25.3.1 of the agreement.
PN663
An employee may be required to perform a broader range of functions ...(reads)... will be consistent with the ABC's obligation to provide a health and safe - - -
PN664
But the very culture of nobility and encouragement for employees to do what Ms Mullens did is expressed quite clearly in section 25.8, titled Nobility. Section 25.8.1 reads:
PN665
Subject to operational requirements in the application of the merit principle ...(reads)... employee skills and development goals.
PN666
Your Honour, most of that last section speaks for itself, but I would like to guide the Commission to the fact that subsection (c) refers to individual career aspirations, which was Ms Mullen's reason for moving to Wiggles and taking a pay cut, and (d) that the ABC actually wants to use ongoing employees over any other form. How can the ABC now be saying that an ongoing employee who is duly taking up the offer, has done the wrong or detrimental thing.
PN667
Further nobility clauses are found in the agreement, your Honour, in section 12.1.2(a), supporting a more mobile multiskilled workforce through the introduction of broadbanding, including cross media classification structures - sorry, that's part of the principles of course, your Honour. The agreement also actually encourages employees to be pro-active, that is, look for other jobs and go out searching for roles as far as they can and actively go seeking roles, as Ms Mullen did. That is in 12.1.4(b):
PN668
The ABC will regularly inform employees about changing employment ...(reads)... both internally and externally.
PN669
Now, we hear the ABC is holding her to task because she's gone for a job, your Honour, another job. I'd like to address the ABCs assertion that Ms Mullen testified as being told by a manager in production, "We're not obliged to find you another job". Ms Mullen, of course, thought it was that she might not be instantly placed into another role within production straightaway.
PN670
She knew she was taking a risk that she might have to fill a boring admin role in maybe another whole division such as radio for a while but it was a risk worth taking. She was gambling on the idea that more short term roles in production would surface but what she did have tucked away in her thoughts was the notion that it would be that bit easier to take up an expression of interest, etcetera, after 11 weeks further experience in production.
PN671
She also knew indirectly of ABCs promise of allowing her to move around in that fashion as contained in the mobility clauses in the agreement. What she didn't know is that the ABC had decided to change the rules for her and that in this instance the mobility clauses would not be used and that by taking up the offer of employment at The Wiggles she'd be terminating her status as an ongoing employee. Your Honour, through testimony we have not heard anyone say that that would be actually the case and nobody explained to her exactly what the ramifications of a move would be and that the mobility clauses would no longer be in effect.
PN672
Bearing in mind the fact that employment and career is sacred to a person I would have thought that the ABC would have made their intention to terminate Ms Mullen's ongoing status clear throughout all the plethora of meetings both in person and over the phone. People don't just make a decision like that without actually being pretty clear about it, your Honour, and both the ABC and Ms Mullen never displayed an intention that she was resigning her status as an ongoing employee.
PN673
I must also point out that this case now has other ramifications for the ABCs current employment practices. If the ABC is judged to have acted correctly by the Commission in this case then the whole process of ongoing staff moving around to fill short term vacancies will be in doubt. As a union we would have to advise that no member take up such an offer as it may lead to termination of their tenure. Your Honour, the CPSU is seeking that the ABC recognises Ms Mullen's ongoing status immediately. Thank you.
PN674
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN675
MS MacBEAN: I do have my written submissions here, your Honour, if I can just find them. Your Honour, I think in this case it is tempting to look at this dispute as a global matter and I think that is what the union is trying to and inviting the Commission to do, to look at this in a big picture situation, and I found myself wondering, what is the ABCs obligation where an ongoing employee answers an expression of interest, an invitation to treat, if you like, from their employer take up a short term job and not told anything about how that might affect their employment and take that short term position and I've had to remind myself that that's actually not the dispute that is here before the Commission. It is pertaining to the particular facts of this dispute and while there was certainly uncertainty about Ms Mullen's employment status there are four things that are important in this case and we submit they are the only four things that matter and they are the only four things about which everybody is in agreement about.
PN676
The first issue that we're in agreement about is that Cassie, when she was working in TV Documentaries, was there in an ongoing capacity; that was certainly Dasha Ross' evidence. She said she expected her to be there for at least a year. It was certainly Cassie Mullen's testimony that she understood that she was there for at least a year and that that was an ongoing role, number one, no one is in any doubt about that.
PN677
The second aspect is that Cassie sought other employment herself. She does not testify that she applied to an expression of interest from her employer. There was no invitation to treat by the ABC. She sourced it service. Catherine Shirley's evidence is, and there's nothing that Ms Mullen says that contradicts that, that she sourced the job herself. She was out and about trying to find a job that would better suit her career aspirations whether they be with the ABC or outside. So Ms Mullen to that extent was the author of her own destiny. At no point was this matter initiated by the ABC. She sourced a job herself but prior to accepting that position she was told by Ms Shirley that it was a fixed term position and that taking up the position could jeopardise her employment with the ABC.
PN678
Now, Ms Mullen has said she didn't appreciate that when she accepted that position that she, you know, could potentially be without a job yet her own email of 26 March to Peter Dunn when she's talking about her employment, says in the last paragraph, and I quote:
PN679
I'd really like to stay in production if I can after The Wigglers is finished -
PN680
That's interesting because we've actually told her before she even took the job that there would be no work in production:
PN681
- with the ideal goal of getting into researching and one day producing or possibly presenting but obviously if there is nothing available at the end of The Wiggles I would be happy to go back to Documentaries -
PN682
Interesting again because she's actually been told there is no job for her in Documentaries. She finishes:
PN683
- as I don't want to be without a job!!
PN684
She doesn't say because I don't not want to work in production resources, she quite clearly says "I don't want to be without a job!!" and it's our submission that Ms Mullen knew exactly what the situation was, Ms Shirley was very clear about it. Cassie Mullen says herself "I'll take the risk". Now, we submit that Ms Shirley's evidence in relation to these issues is to be preferred. She has nothing to gain in this matter. She's not an employee of the ABC. She's just a person that has come along today to give truthful testimony.
PN685
So the situation we have is no doubt that Cassie is an employee; she knows that. No doubt that she was in an ongoing role; she knew that. No doubt that the job that she was taking was a short term position and at the end of that her employment prospects with the ABC could be jeopardised.
PN686
Finally, the other thing that we don't seem to be in doubt about is what was said to her when she went and told Dasha Ross, her manager, I want to take this other job. She was told quite plainly, we cannot hold this job open for you permanently, we need this job done. It's a job that still needs doing today so through no active involvement in the ABC whatsoever Cassie Mullen has left a job that still needs doing to go to one that she knew would finish, her employment would be in jeopardy if at the end of that there was no other work for her and yet she's coming to the Commission to say that the ABC is obliged to find her another job but, further than that, we have to find her a job she's already indicated she doesn't want to do and, secondly, if we can't find her a job we have to pay her a redundancy which seems patently absurd if the job that the person left is still being done and still needs to be done.
PN687
THE SENIOR DEPUTY PRESIDENT: Has it been filled?
PN688
MS MacBEAN: Yes, it has, your Honour. Following that to its logical conclusion it would mean that people could actually engineer redundancies in the ABC while the ABC still required a position that that person was doing to be done. It's not, in my understanding of redundancy, a redundancy situation.
PN689
I think the other interesting thing about the testimony of Ms Mullen is that there seems to be some inconsistencies and I think it's consistent with what Cathy Shirley was saying. Cassie didn't want to hear the bad news, she didn't want to take onboard the comments about her employment. That was a problem she'd worry about at another day, she was just so determined to get into production, to get that job. And should the ABC be held responsible for someone who doesn't, although they're told, doesn't take it onboard and doesn't want to take it onboard?
PN690
Then there's issues of credit, I would submit, your Honour. Cassie Mullen in her sworn testimony denied saying to me that Luke Caruso had told her she was getting a redundancy. Now, she says in the witness box, somebody else told me that but I don't want to say who it was because that would get them in trouble. So she didn't call that person. My testimony is that I contacted Mr Caruso immediately after that and said, Did you tell her that she was getting a redundancy? And he said to me, No, I did not. And yet she denies saying that to me. I think it's consistent that if she didn't actually want to tell me who had said what was said to her because she was afraid that that person would get into trouble that it might be likely that she would lie and say that Luke Caruso had told her that.
PN691
The other issue of credit as well, your Honour, is she said to me in the conversation, I was never told I was a fixed term employee, never. But that's patently not true either. Her first contract of employment was a fixed term employment and there were indeed three fixed term employments that she concedes, that the union concedes. So to say that she had never ever been made aware that she was a fixed term employee is also not true.
PN692
THE SENIOR DEPUTY PRESIDENT: You only raise those issues though in relation to the reliability of her evidence?
PN693
MS MacBEAN: Exactly.
PN694
THE SENIOR DEPUTY PRESIDENT: Because you don't dispute that at the time she knew she was ongoing?
PN695
MS MacBEAN: That's right, only as to credit. The point I'm getting at, your Honour, is that Ms Mullen has displayed an interest in this case in claiming a redundancy and has represented certain facts and a position of her understanding which is not supported by her own evidence, her emails, and not supported by her testimony. I think the union as well they've tried to portray this as these expressions of interest. All the evidence that they led about this custom and practice of an obligation of finding someone an ongoing job or paying them a redundancy was all about expressions of interest and I can see why. If an employer actually invites someone to take a short term job well then perhaps we wouldn't be here because the ABC may have taken a different view.
PN696
They called Jodie Boehme and they handed up a bundle of documents of expressions of interest but there's no expression of interest for the Wiggles job, one wasn't created, that's Cathy Shirley's evidence. So all of the evidence that they've led yet they weren't able to name one person for which this had happened to. They weren't able to call one person to say, yes, I had applied to an expression of interest and, yes, I have taken another job and, yes, I had ultimately been paid a redundancy. It's this sort of, you know, alleged custom and practice that they haven't been able to prove in any way, shape or form. Just the sort of, you know, what might happen and what usually happens and what could happen was Ms Boehme's testimony.
PN697
I think in terms of looking at the bigger picture and some of the - not that I concede that it's in any way relevant to this case because as I say there's only four things that need deciding and I think they're four things that everyone was clear about - but about the issues that this mobility of employment. It would be I think an absurd construction of mobility to say that the ABC would be required to spend taxpayers' money to pay someone a redundancy when they had voluntarily of their own volition at their own hand left an ongoing job on the understanding that Ms Mullen had at the time. That would be the ABC paying twice.
PN698
As I said if you followed that to the logical conclusion people could be engineering their own redundancies. Mr Hatter also referred to a couple of provisions of the employment agreement and particularly, your Honour, 25.8 of the employment agreement. Mobility, the opening clause says:
PN699
Subject to operational requirements.
PN700
And that's the nutshell. It must always be subject to operational requirements. You can't have people deciding that they don't want to do a job that they're doing to do something else and then require that to supersede the ABCs business. It's quite clear in the red book that it's subject to operational requirements. Nothing in the employment agreement prohibits the ABC from saying, this situation doesn't suit our operational requirements, this situation doesn't fall within this mobility concept within the ABC and that's exactly what happened here. It wasn't suitable to the ABCs operations. You heard about the difficulties that it put - - -
PN701
THE SENIOR DEPUTY PRESIDENT: If the ABC had had an admin position in another division not in production just as a preliminary view I seem to gather there's a difference between people who move from production to jobs and out of production, in and out of the pool of production workers into production jobs. But if there had been a job available in admin within Cassie's capacity would she have been able to move back to that if she had wanted if she had been suitable for that job?
PN702
MS MacBEAN: I don't think it was a question of moving back to it, your Honour, I think it's a question - - -
PN703
THE SENIOR DEPUTY PRESIDENT: Well, moving back into that division, into whatever division was not managed by - I've forgotten the name of it?
PN704
MS MacBEAN: Production resources.
PN705
THE SENIOR DEPUTY PRESIDENT: Yes, if she'd moved into production resources for a job that had a 10 week term if there had been vacancies that had arisen in the meantime through the departure of somebody within her capacity back in the other area, I don't know what that was called.
PN706
MS MacBEAN: Documentary, TV. You've got TV and then - - -
PN707
THE SENIOR DEPUTY PRESIDENT: Or whatever, some area where there was an admin position, would it have been acceptable?
PN708
MS MacBEAN: It would certainly be open to the ABC for her to apply for that position and, we say, that has to be the natural conclusion of this case. There is no ongoing position at this point in time. We say she's not redundant and we shouldn't be required to pay a redundancy on that basis. But if there was a job that Cassie Mullen had the required skills to perform in an ongoing capacity she would be entirely free to apply for that job and I have to suggest with her experience that would probably be considered favourably. Indeed, Peter Dunn - it's Cassie Mullen's testimony that Peter Dunn actually said that to her, you know, you're more than welcome to apply for another job.
PN709
So it's not as if the door has closed on Cassie Mullen in terms of the ABC, it's just what is the obligations of the ABC? Do we have to run around and try and find somebody a job they don't want to do because they're on the record as saying they only want to work in TV or production resources and say, okay, you don't want to do that one, do you want to do this one? Okay, you don't want to do that one. When at no point did we initiate this situation.
PN710
I think the other position is, your Honour, that the ABC does expend considerable resources in terms of trying to find people work and trying to avoid redundancies and that is certainly where a focus of the human resources department is. But this is not that situation. This is not a person that has through no fault of their own which is the typical concept of redundancy, through no fault of their own has ended up without a job. We would submit that that's really where the ABC needs to focus its attentions. We can't be running around trying to find people jobs when they've created the situation for themselves.
PN711
The other section that Mr Hatter referred was 12.1.4 of the agreement and in particular it talks about requiring a person to take active responsibility for their career. This is not a situation where someone blindly went into a situation and we subsequently said, by the way, there's no job for you and we don't have an obligation towards you. She was required to take an active responsibility at the time when she was given all of the relevant information. We say she didn't actually behave responsibly for her own career. She decided something will come up, I'll take it, I really want to be in production. So she took the risk.
PN712
Now, there's an obligation on her to be responsible about her career and I don't think the ABC should subsequently be held responsible for someone's irresponsibility about their career. Mr Hatter also said that Cassie had in her mind this sort of mobility if you like, culture, that operates in the ABC. It's her own sworn testimony that she never read the employment agreement and that the only provision she read in the employment agreement were about fixed term and ongoing employment. So how he could say that she had this sort of idea, or concept, about mobility within the ABC, there's no evidence before you that she did. She doesn't say that she was aware of that in terms of the employment agreement.
PN713
But what's more, is it reasonable for her to have that view, given all of the information that she was given at the time. We would submit, that it is not reasonable. I think, your Honour, just to summarise I suppose the other issues about Mr Palmer's testimony and the letter that he's written, it's all global stuff. It's all global. What we say just to recap, four things that no one is any doubt about, she was an employee, she had an ongoing job, she left it of her own volition for a job she sourced herself, we never invited her to express an interest in the role and she knew at the time that her employment with the ABC would be jeopardised by taking that role.
PN714
There's no evidence before you that that is not the case. On that basis, your Honour, the union has put to you this situation that if an adverse finding were given to the unions case that the whole concept of expressions of interest would be thrown into doubt, well indeed that would be the case because if it was the finding that the ABC was entitled to, say obliged to pay redundancies to people who had initiated their entire destiny of their career within the ABC, yes, the ABC would have to look at that. It couldn't be allowed to continue because it would be using taxpayers money to pay twice. That's the extent of our submissions.
PN715
THE SENIOR DEPUTY PRESIDENT: Thank you. Anything else, Mr Hatter, in reply?
PN716
MR HATTER: I didn't know I got a reply.
PN717
THE SENIOR DEPUTY PRESIDENT: Yes, it goes one, two and one again.
PN718
MR HATTER: All right.
PN719
THE SENIOR DEPUTY PRESIDENT: Only if there's something that arises out of Ms MacBean's address that you want to respond to.
PN720
MR HATTER: Absolutely, of course. Your Honour, Ms Mullen is not asking for redundancy. That has not been presented in any of the testimony. She wants an ongoing - she wants to be seen as an ongoing employee. Of course that may make her potentially excess but the red book, the agreement actually has lots of provisions which I alluded to before, your Honour.
PN721
THE SENIOR DEPUTY PRESIDENT: Has she applied for any other jobs?
PN722
MR HATTER: Your Honour, she was going for other jobs the whole time. Some of the ABCs submissions, documents that they tendered actually talk about her looking for other jobs in the ABC. There are other jobs in the ABC, admin jobs she could do, particularly on a short term basis. She was very happy, she thought that's the way you'd normally go. She'd get put into another job while she was waiting for another good job in production. That's what people do. Ms Shirley talked about that's how people always, that's their career path. They move into production from other areas, that's what they do.
PN723
Ms Shirley also admitted that she wasn't representing ABC. She can't represent ABC under cross-examination. She said, I can only look after production resources and she did not think she was talking about the ABC when she was talking to Ms Mullen. As I said I'd like to retread, it's not about paying redundancy, this is not about money, your Honour. This is about our member keeping her ongoing status at the ABC. It's about her understanding the culture of the ABC that there was a lot of mobility. It's about the ABC trying to have it both ways now where once upon a time you did own a position, work was very stringent, you couldn't leave your position without signing off to another. Now they are trying to say, well we like this, we like to have it our way where we can just move people in and redeploy people here and there based on business requirements.
PN724
But at the end if that happens they may not have a job or Ms Mullen moved off to another position in another area of production resources. By doing so she has sacrificed her ongoing status. For ABC to submit that she somehow made this happen is - for ABC to submit that somehow she made this happen and that she forced ABC to give her that other job I've never heard of an employee - please I wish the day would come where an employee can say, I want that job at ABC to their employer and take it. ABC let her do it, they knew it must have been based on operational requirements for her to move from DOCOs into the Wiggles job.
PN725
I mean ABCs they are the master of this, it's certainly not up to Cassie. So that's how ridiculous the submission, your Honour. I think that's it, your Honour.
PN726
THE SENIOR DEPUTY PRESIDENT: I will reserve my decision.
ADJOURNED INDEFINITELY [12.31pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #ABC1 TWO PAGES OF EMAILS PN428
V. MACBEAN, SWORN PN431
WITNESS WITHDREW PN440
DASHA ROSS, SWORN PN452
EXAMINATION-IN-CHIEF BY MS MacBEAN PN452
CROSS-EXAMINATION BY MR HATTER PN465
WITNESS WITHDREW PN516
CATHERINE ANNE SHIRLEY, AFFIRMED PN518
EXAMINATION-IN-CHIEF BY MS MacBEAN PN518
CROSS-EXAMINATION BY MR HATTER PN546
RE-EXAMINATION BY MS MacBEAN PN603
WITNESS WITHDREW PN611
EXHIBIT #CPSU2 TAPE OF ABC INFORMATION SESSION PN629
EXHIBIT #CPSU3 LETTER FROM MR PALMER DATED AND SIGNED ON 19/07/1994 PN641
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