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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N VT05024
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER LEWIN
C2001/4416
AUSTRALIAN MUNICIPAL,
ADMINISTRATIVE, CLERICAL
AND SERVICES UNION
and
UNITED ENERGY
Notification pursuant to section 99 of
the Act of a dispute re availability duty
MELBOURNE
10.34 AM, THURSDAY, 18 JULY 2002
Continued from 10.7.02
PN1463
THE COMMISSIONER: I think we are going to re-examine Mr Bishop. Is that right?
PN1464
MR RIZZO: Yes, Commissioner.
PN1465
PN1466
THE COMMISSIONER: Thank you, Mr Bishop. Please be seated. Yes, Mr Rizzo.
PN1467
MR RIZZO: Thank you, Commissioner. Let me just apologise at the outset that I have got a bit of a cough at the moment, so I have to soldier on a bit.
PN1468
Mr Bishop, I am referring to the document R5 which is the contract, or the MPT contract, that was given to you which Mr Moylan referred to. Did you sign this particular contract?---No, I didn't.
PN1469
No. Mr Moylan says that - well, the contract is dated 28 June and I think we all agree that it was given to people at a meeting on 1 July?---That is correct, yes.
PN1470
But the interviews that you had in order to be successful for your job, whenabouts did they take place?---They would have been mid - mid to early or early to mid June.
PN1471
Early to mid June. So when you say in your witness statement, which is document A8, in the fifth paragraph that:
PN1472
I had not been given any indication that rostered availability was to be implemented at any stage in the near or distant future.
PN1473
And here you are talking about at the time of the interview?---Correct.
PN1474
Is that correct, that at the time of the interview between early and mid June, you had not been given any indication that the job would entail rostered availability?---That is right.
**** ANDREW CRAIG BISHOP RXN MR RIZZO
PN1475
When you look at document R5, and under Salary it says:
PN1476
Your annual salary shall be -
PN1477
such and such -
PN1478
from the date of your appointment and incorporates payment for loading, shift allowances, shift premiums, availability allowances, public holiday loadings and applying for reasonable additional hours in the role.
PN1479
Availability allowances - what does that suggest to you?---That there was an intention for rostered availability.
PN1480
And was that one of the reasons why you did not sign on to the MPT?---Correct.
PN1481
Yes, thank you, Mr Bishop. I think I have no further questions of Mr Bishop, Commissioner.
PN1482
THE COMMISSIONER: Thank you very much, Mr Rizzo.
PN1483
PN1484
THE COMMISSIONER: Mr Moylan, I think you have got some witnesses to call now, is that right?
PN1485
MR MOYLAN: That is correct, sir.
PN1486
THE COMMISSIONER: Do you want to call your first witness?
PN1487
MR MOYLAN: Yes, sir.
PN1488
PN1489
THE COMMISSIONER: Thank you, please be seated. Mr Moylan?
PN1490
MR MOYLAN: Mr Whelan, would you please state your role within United Energy?---My current role with United Energy is Manager of Field Practice and Compliance Group and Distribution.
PN1491
And at the time of May 2000 - May 1999, what was your role with United Energy?---I was involved in the transition process for Multi Net, the Multi Net United Energy Group, and I was appointed Manager of the Control Room, involving the Network Control and Dispatch Group, as it was, during May 1999, in the process.
PN1492
Can you briefly give the Commission some background of your experience working with United Energy and before that with the SECV?---My working experience is involved in the electrical distribution systems, originally with the SECV. I joined as a trainee in 1979. I worked with the SEC until 1994. I was working in private enterprise, consultancy and contracting through to '96 at which time I joined United Energy, in May '96, as the Manager of the Dandenong area and held several positions since then.
PN1493
And in the period that you worked for the SECV and United Energy have you had experience of availability?---Yes. I have partaken of several types of availability, both rostered duty availability and also chance availability.
PN1494
Mr Whelan, you have provided to the Commission and to Mr Rizzo, on behalf of Mr Bishop, two statements. If I may, Commissioner, I would like to tender both of those statements and have the - - -
PN1495
THE COMMISSIONER: Yes, just get the witness to prove them first.
PN1496
MR MOYLAN: Do you require documents though?
**** PETER ANTHONY WHELAN XN MR MOYLAN
PN1497
THE COMMISSIONER: Yes. What you should do is ask the witness to prove the statement.
PN1498
MR MOYLAN: Yes. That is what I am proposing to do, sir.
PN1499
The first document is headed Confidential, is dated 3 April 2002 and it then says, Statement of Peter Anthony Whelan, Manager - Field Practices and Compliance Section, United Energy Limited. Can you identify that statement please?---Yes, that is the document that I prepared and submitted on that date.
PN1500
PN1501
MR MOYLAN: I want to show you now a second document. The second document is headed Confidential, Supplementary Statement and is dated 23 April 2002. Then it says, Statement of Peter Anthony Whelan, Manager - Field Practices and Compliance, United Energy Limited. Would you identify that statement please?---Yes, that is a statement I prepared and submitted on that date.
PN1502
Sorry, Commissioner, if you will indulge me for a minute, I need to check something. The document was printed off for me this morning for the purposes of being an exhibit. I am not clear, however, that the document that I have provided, that I have handed Mr Whelan is the full document or whether or not there is a second page to the statement.
EXHIBIT #R7 DOCUMENT HEADED CONFIDENTIAL DATED 23 APRIL 2002
**** PETER ANTHONY WHELAN XN MR MOYLAN
PN1503
MR MOYLAN: It is document R6 - yes, document R7 sir.
PN1504
THE COMMISSIONER: R7 has got quite a number of pages or do you mean the actual statement is two pages?
PN1505
MR MOYLAN: The second page - I am unclear as to whether there is a second page.
PN1506
THE COMMISSIONER: Were there nine paragraphs in your statement, Mr Whelan, the supplementary one?---That I am aware of, your Honour. I do have a copy outside.
PN1507
Can you - what have you got in front of you? How many paragraphs are in that document?---Nine.
PN1508
On your recollection were there more than one - I am sorry, more than nine paragraphs?---Not that I am aware of, your Honour.
PN1509
MR MOYLAN: I may be in error on that, sir. I will proceed on the basis that the document was prepared for me correctly, sir, and if I am in error on that I will follow further.
PN1510
THE COMMISSIONER: All right. Is this all true and correct, R7, is it, Mr Whelan?---That I am aware of, your Honour. As I say I have an original outside the courtroom that I - personal copy.
PN1511
Well, is this your evidence?---Yes.
PN1512
You testify to these things in here, do you?---Yes.
**** PETER ANTHONY WHELAN XN MR MOYLAN
PN1513
MR MOYLAN: It is your evidence that the statements contained in the document on its first page are true and correct?---Yes.
PN1514
And that the documents attached to the exhibit are the documents referred to in the statement?---Yes.
PN1515
Thank you. Just taking you to what you identify within your statement as attachment 2 which is a document, which you say in your statement:
PN1516
I subsequently reviewed the PD prepared by Shaun Bassett and modified the PD on Thursday, 27 May 1999.
PN1517
Attachment 2?---Yes.
PN1518
I show you another exhibit. Do you identify the exhibit by the exhibit number shown on the top right hand corner?---Yes, A5. Is that correct, A5? Is that what you are referring to?
PN1519
Yes. Is that in fact, in terms of its contents, the same document as is your attachment 2 to your exhibit R7?---Insomuch as checking those exact sentences, yes, that are related to under item 6 of the PD.
PN1520
Now taking you to your statement, exhibit R6?---R6, yes.
PN1521
You state in paragraph 12:
PN1522
The question was put to the candidates containing two elements, rotating rostered and rostered availability duties. None of the candidates indicated they had a problem with either of these two working arrangements. It was done specifically to address the change in arrangements from the existing arrangements in the Utility Mode Call Centre.
**** PETER ANTHONY WHELAN XN MR MOYLAN
PN1523
You are quite clear on that recollection?---Yes.
PN1524
THE COMMISSIONER: How many candidates were there?---There were - candidates were interviewed, your Honour, I think it was in the order of 20, 25 candidates that went for interview. I think there was something like 40 applications.
PN1525
Over what period of time did the interviews take place?---Within the space of - within the space of a week. Give or take one or two.
PN1526
You interviewed 25 people in a week?---Pretty close to it, yes - mid week.
PN1527
On - what was the timing basis?---We started interviews I believe between 8.30, 9 in the morning till 5 at night of approximately one hour for each candidate.
PN1528
Do you have an interview outline that you work from?---Yes, we did have an interview outline, yes.
PN1529
Is that available?---Not with me, unfortunately.
PN1530
But it can be produced?---Yes.
PN1531
And 25 people for an hour or so?---In that approximate range, yes.
PN1532
So 25 hours of interviews in the week?---Yes.
PN1533
And was Mr Bishop among the interviewees?---Yes, your Honour.
**** PETER ANTHONY WHELAN XN MR MOYLAN
PN1534
Good, thank you. Go ahead, Mr Moylan.
PN1535
MR MOYLAN: So were the questions you asked of the candidates in respect of this all the same questions?---The content or the intent of each of the questions was, yes, your Honour. Dependent upon how the interview flowed as to how we positioned the questions but the intent of the questions, we maintained the same, yes.
PN1536
THE COMMISSIONER: That is actually a leading question, you realise, Mr Moylan?
PN1537
MR MOYLAN: I was aware of that sir, however, that is really - - -
PN1538
THE COMMISSIONER: I know, it wasn't objected to, but the reason I make note of it is because even if it is not objected to I have to evaluate the evidence and the conditions under which it is given are obviously important to that evaluation.
PN1539
MR MOYLAN: Other than talking about availability in the interviews what else did you discuss with the candidates?---There was a variety of issues. We talked about how they would handle certain scenarios so that we could gauge a level of skill set and application. We talked about the change of arrangements and again referring to item 12 here - the questions intent was to talk about the change of how we would structure the rostered shift work and processes and the fact that in doing so we would be working with an availability process and it was a rostered availability process to ensure continuity of the work flow. They were some of the broad questions.
PN1540
Did you talk to them about the conditions upon which they would be employed?---Yes, all candidates were advised that we would be issuing them an offer under an MPT arrangement and that it was their decision to accept under those conditions but the offer - the MPT contained an annualised salary, a component for overtime and a component for allowances - I think shift and availability allowances.
**** PETER ANTHONY WHELAN XN MR MOYLAN
PN1541
Could you explain to the Commission what the words MPT mean?---It stands for Managerial, Professional and Technical Contract, to the best of my knowledge. We know it vernacularly as an MPT arrangement, which is an annualised salary contract supported and underpinned by all award conditions.
PN1542
Subsequently I understand that you gave Mr Bishop an MPT contract to consider?---That is correct.
PN1543
If I can show you - identify the document that you are just looking at now?---The document is an MPT Offer of Appointment to the position of Resource Co-ordinator.
PN1544
And it is dated?---It is dated 28 June 1999.
PN1545
THE COMMISSIONER: That will be R8.
PN1546
MR MOYLAN: R8, sir, yes. With respect - - -
PN1547
THE COMMISSIONER: I beg your pardon.
PN1548
MR MOYLAN: With respect to that document - - -
PN1549
THE COMMISSIONER: It is already in. My associate draws my attention to the fact that there is a document of this kind already admitted.
PN1550
MR MOYLAN: No, sir, I am not seeking to have it admitted, sir, as a new document.
**** PETER ANTHONY WHELAN XN MR MOYLAN
PN1551
THE COMMISSIONER: I see.
PN1552
MR MOYLAN: It has already been admitted. I am merely taking the witness to it.
PN1553
THE COMMISSIONER: I thought that was the case, but I thought it might be a different thing.
PN1554
MR MOYLAN: No, sir. No.
PN1555
THE COMMISSIONER: Well, we will withdraw that mark and what you are actually showing the witness is already exhibited as R5.
PN1556
MR MOYLAN: R5, that is correct, sir.
PN1557
With that document, is that the document that you provided to Mr Bishop?---I believe so.
PN1558
You will note that it is of only two pages?---Yes. It doesn't have my signature on it, which would have had - it would have had in terms of - - -
PN1559
THE COMMISSIONER: Don't worry about that. It is not contentious that it - that one of these was received by Mr Bishop?---Yes.
PN1560
MR MOYLAN: There is an - - -
PN1561
THE COMMISSIONER: Mr Bishop's evidence is he received one of - - -
**** PETER ANTHONY WHELAN XN MR MOYLAN
PN1562
MR MOYLAN: Pardon.
PN1563
THE COMMISSIONER: Mr Bishop's evidence is that he received one of these.
PN1564
MR MOYLAN: In respect of that, sir, there is - for reasons that I will be making submissions about later - the third page of the document is of some relevance.
PN1565
THE COMMISSIONER: Well, is that in R5, the third page?
PN1566
MR MOYLAN: The third page isn't in R5 that was not what - - -
PN1567
THE COMMISSIONER: Is the third page in the possession of Mr Whelan?---No.
PN1568
MR MOYLAN: The document - - -
PN1569
THE COMMISSIONER: What I was addressing was that it is just not contentious that a document was received with an offer in it.
PN1570
MR MOYLAN: Okay.
PN1571
THE COMMISSIONER: Now if there is some contention about the contents of what was received - - -
PN1572
MR MOYLAN: The only - the issue, sir, is that the document in its third page - and I have a copy of the original document I was to exhibit - which differs, as I understand, only from exhibit R5 is the quantum stating annual salary, that the third page contains - - -
**** PETER ANTHONY WHELAN XN MR MOYLAN
PN1573
THE COMMISSIONER: Is the third page material to the issue before the Commission?
PN1574
MR MOYLAN: I believe it will be, sir, inasmuch as it establishes in its third page that the document, whilst it starts with the words "I am pleased to confirm the offer", contains a statement at the end of it - - -
PN1575
THE COMMISSIONER: Well, before you start explaining all of that, it might be useful for you to try and prove this.
PN1576
MR MOYLAN: Pardon.
PN1577
THE COMMISSIONER: It might be useful for you to prove this through the witness.
PN1578
MR MOYLAN: Very well.
PN1579
THE COMMISSIONER: He has got a two page document. He has testified that that was the offer. Is that right?---Yes, that is - - -
PN1580
MR MOYLAN: Yes.
PN1581
THE COMMISSIONER: You are saying, no, it wasn't - - -
PN1582
MR MOYLAN: Well, sir, in respect - - -
PN1583
THE COMMISSIONER: There was a three page offer?
**** PETER ANTHONY WHELAN XN MR MOYLAN
PN1584
MR MOYLAN: Yes, that is - I will hand the witness - - -
PN1585
THE COMMISSIONER: Well, show him what you have got now.
PN1586
MR MOYLAN: I will hand the witness a further document.
PN1587
MR RIZZO: Commissioner, can I point out the obvious and say that this was not provided to us at any stage, this third page. This was submitted last week by Mr Moylan. R5 was submitted as a two page document and was given to me months ago as a two page document and now Mr Moylan asserts that there is a third page which I am totally unaware of.
PN1588
THE COMMISSIONER: I doubt that it is material. What do you say is material about it?
PN1589
MR MOYLAN: Well, with respect, sir, the documents provide - number one, the document was provided to Mr Rizzo back in October last year when this matter first - - -
PN1590
THE COMMISSIONER: No, I am sorry I am asking a question about - - -
PN1591
MR MOYLAN: Yes, sorry, sir.
PN1592
THE COMMISSIONER: What is the - what contents - - -
PN1593
MR MOYLAN: The material point there, sir, is that it contains the words at the end "acceptance" I understand and:
**** PETER ANTHONY WHELAN XN MR MOYLAN
PN1594
...accept the benefits, terms and conditions of this offer.
PN1595
It demonstrates, sir, that this is a document to be either accepted or not accepted by the - - -
PN1596
THE COMMISSIONER: I don't think there is any contention about that. It was rejected, isn't that right? That is your case?
PN1597
MR MOYLAN: That is correct, sir.
PN1598
THE COMMISSIONER: As I say, I don't think there is any contention about that. That there was, there was an offer which was not accepted.
PN1599
MR MOYLAN: Yes, sir.
PN1600
When was this document provided to Mr Bishop, Mr Whelan?---At the conclusion of the meeting of all the successful candidates and that was Thursday, 3 July - 3 June or July.
PN1601
I can - - -?---The exact date I would have to - I believe it is 3 July but in that period of time frame, the first week in July of 1999 when we had all successful candidates meet where we worked, talked about certain things and at the end of that meeting all candidates were issued with the letter of offer.
PN1602
Were you at that meeting?---Yes.
PN1603
THE COMMISSIONER: All the successful candidates? Not all candidates?---No, all successful candidates.
**** PETER ANTHONY WHELAN XN MR MOYLAN
PN1604
MR MOYLAN: And what was discussed at that meeting?---In broad terms, the discussion revolved around the successful appointment, the direction that the business wished to go with the newly structured Resource Co-ordination Group, as part of the Network Control and Resource Co-ordination Group, the focus of the group in managing the field resources, that the previous activities that were carried out in the Utility Mode Call Centre Faults Area was being split, and that the focus was on resource management. The focus of that process in close co-ordination with the network control and the benefits that would be drawn from having the two groups working closely together. The discussion of teamwork, the environment of teamwork, that because it was a relatively small, 13, 12 or 13 personnel group, that there was a need for close teamwork, close liaison. The view of the structuring of the rostered shift processes and that we were trying to match the rostering and the resourcing to the workload that we had done some studies on, and that there would be one person overnight between the broad hours of 11 pm to 7 am where workload had shown that it was fairly light in general and that we would be seeking to engage a rostered availability process to provide supporting resource, when and as required.
[11.02am]
PN1605
With respect of that were the - if I can show you another document, it is exhibit R4, sir. Can you identify that document?---Yes, this is a document that Peter Kendall, I believe, handed out during that meeting - - -
PN1606
I am sorry, sir, I may have the wrong document.
PN1607
MR RIZZO: Yes, Commissioner, it is the wrong document.
PN1608
THE COMMISSIONER: I think you are referring to R3.
PN1609
MR MOYLAN: R3, sir, that is correct.
**** PETER ANTHONY WHELAN XN MR MOYLAN
PN1610
THE COMMISSIONER: Well what you have is R3?---It is a generic - it is a roster that we had developed to discuss at that meeting of the successful candidates, as to a proposed rostering arrangement to meet with the workloads that we anticipated, and have done a study on, that would provide us with what we believe was the right mix of resource to workloads, to achieve an efficient outcome.
PN1611
MR MOYLAN: And the document has columns which I have marked with a highlight, do you understand what those highlighted elements are?---The small a which is like a subscript, was indicating the rostered availability, the person who would be undertaking a day shift, and undertaking rostered availability for the period of that roster, which is approximately a rotating five to six week roster.
PN1612
Mr Bishop, was he at that meeting?---Yes.
PN1613
Subsequent to that meeting and Mr Bishop being given the letter of offer by you, did you have any discussions with him about the letter of offer?---Yes, there were discussions. There was generally short stop discussions in moving through the building and my office type of thing, and there was one, what I classify as a closed door discussion, where we had a fairly good and open discussion about the issues that Mr Bishop had with the letter of offer.
PN1614
THE COMMISSIONER: Yes. Can you reconstruct that discussion for us?---It was broadly about the - and it is recollection, it was broadly about trying to provide a financial package that would be adequate to meet that - - -
PN1615
It was just the two of you I take it?---Yes, in that particular discussion, yes.
PN1616
And that was in somebody's office, or a room?---In my office, yes that is specific.
**** PETER ANTHONY WHELAN XN MR MOYLAN
PN1617
Can you reconstruct the conversation, I know that it is not an easy thing to do, but to the best of your ability, along the lines of what was actually said by the parties, as you know, in the conversational dialogue?---The broad impact was to try and see whether we could increase the financial remuneration.
PN1618
I guess that was the object of the conversation?---Right.
PN1619
And I appreciate this is sort of something you have to sort of get into, sort of a role, so to speak, in order to be able to do, but what is of considerable interest is who said what, what words were used, if you follow what I mean. That is what I mean by reconstructing the conversation?---I understand that. I would have difficulty with the exact words, as you would understand.
PN1620
I appreciate that, and I don't expect you to be precise, but I mean, if you could just do your best to try and reconstruct it in your mind and speak as if you were the parties?---I acknowledged Andrew's concern that the remuneration was probably insufficient, that his view was that under the award conditions that he was currently employed on, he would have a better financial outcome potential.
PN1621
So this concerned the MPT did it?---Against the MPT, yes, and I offered to take that through our HR group to see whether we could explore more, in terms of the interpretations of what we had placed on the annualising of the award salary. There was discussion in terms of undertaking availability, but that was very - - -
PN1622
Who said what to who about that?---Well, I don't believe - it doesn't stick in my mind as being a major point. The major point of the discussion was the financial remuneration, and the availability was - well look, the number of times we were going to be doing it were not massive, but we had gone through a period of establishing this group, where we had a reasonable amount of illness, sickness and a lot of backfilling had been going on for quite some time, and we simply just did not have the numbers to be able to effect a viable availability system that was fair to everybody, and so we put that on the backburner in the early stages of the discussion. So in that particular meeting I had with Andrew was, I would call the in depth discussion, was more around the financial remunerations and how we could construct it to increase that.
**** PETER ANTHONY WHELAN XN MR MOYLAN
PN1623
So improve the value of the MPT offer to him?---Agreed.
PN1624
Thank you. Thanks, Mr Moylan.
PN1625
MR MOYLAN: With respect to the availability, can you go back to your recollection to what Mr Bishop precisely said to you?---Precisely, no I wouldn't. I would only be able to discuss it in the broad terms, that it was not a highlight of the discussion, that the discussion was more around the financial component of the offer, and what would construe the requirements to make that acceptable, that Andrew would accept.
PN1626
THE COMMISSIONER: Go ahead.
PN1627
MR MOYLAN: I am trying to think of how to frame my question without it being a leading one, sir.
PN1628
THE COMMISSIONER: Without leading it, yes - it is the art of it, isn't it?
PN1629
MR MOYLAN: It is.
PN1630
In the responses, or in the conversation that you had with Mr Bishop, did he give you any indication of how he viewed or characterised what availability meant?---No, I did not receive any indication as to how Andrew saw the structure of availability. It just didn't become an issue.
PN1631
Did he express any view as to the meaning of availability in the context of the discussion that you were having?---Not in that conversation, to my best recollection, no.
**** PETER ANTHONY WHELAN XN MR MOYLAN
PN1632
In your discussions with him in respect of availability, did you characterise what you were talking about in terms of availability?---I can refer back to this in terms of indicating that our discussions in terms of availability, and generically in the distribution business, as we had an availability process with our network controllers and our line workforce that we oversaw, was always a rostered availability process, so therefore it was always my understanding that availability was always a rostered availability requirement.
PN1633
Was there - in your recollections of the meeting that you had with Mr Bishop to discuss this matter - - -
PN1634
THE COMMISSIONER: In the office?
PN1635
MR MOYLAN: In the office, yes.
PN1636
THE COMMISSIONER: There have a number of meetings, we are talking about the one in the office.
PN1637
MR MOYLAN: In the office, or indeed in any other discussion.
PN1638
THE COMMISSIONER: Well, let us try and break it down.
PN1639
MR MOYLAN: Well, we will try the office first of all, sir.
PN1640
THE COMMISSIONER: Yes, let us do them one at a time.
PN1641
MR MOYLAN: Can you indicate anything that Mr Bishop may have said which would have, and I appreciate sir, this is a critical question, and I appreciate - - -
**** PETER ANTHONY WHELAN XN MR MOYLAN
PN1642
THE COMMISSIONER: Yes, yes.
PN1643
MR MOYLAN: - - - I shouldn't have asked a leading question, so I am taking my time to formulate it.
PN1644
In your discussions with Mr Bishop in the office regarding the MPT offer made to him, was there any discussion regarding the words "availability allowance" which appear in the offer?---Can you repeat that again, sorry?
PN1645
In your discussions in the office, the formal discussion, as you have described it, with Mr Bishop regarding the offer, the MPT offer made to him - - -?---Yes.
PN1646
- - - contained in the exhibit R5, I think, sir?---That one?
PN1647
THE COMMISSIONER: Well we know you are referring to the MPT offer, there is only one in the evidence.
PN1648
MR MOYLAN: That is right, sir.
PN1649
Was there any discussion about the words "availability allowance"?---About the meaning?
PN1650
No, about the words availability allowance at all first of all?---In so much an availability allowance constituted the contribution to the MPT - - -
PN1651
THE COMMISSIONER: The question is not so much a description of what the allowance was, or what it was for, or that it was a part of the MPT, the question is actually related to an event, what Mr Moylan is asking you is, to your recollection, was that a subject of discussion at the meeting, the allowance?---No, that doesn't ring a bell, true.
**** PETER ANTHONY WHELAN XN MR MOYLAN
PN1652
MR MOYLAN: Did Mr Bishop ask any questions about it?---About the allowance?
PN1653
Well, about those words?---About availability, the words?
PN1654
THE COMMISSIONER: The allowance I think is what we are talking about at the moment?---No, not in my recollection.
PN1655
MR MOYLAN: Outside of the discussion at that meeting, were there any other discussion, and in the other discussions that you had with Mr Bishop, first of all before you had that meeting, were there any discussions with him in respect of the issue of availability?---No.
PN1656
In the discussions, did you subsequent to the meeting with Mr Bishop, have later discussions?---I think there was - I believe there was one further discussion, and it was along the lines that I had checked with HR, and we weren't in a position to offer a financial package in the order of what Mr Bishop would have thought was acceptable.
PN1657
Can you recall this was a discussion with Mr Bishop?---Yes.
PN1658
And you were the person having that discussion with him?---Yes.
PN1659
Do you recall his - any words that he used in response to you saying that to him?---No, to my recollection, Andrew just accepted and said okay, we will move on. It was sort of in a process of picking up the information, conveying it, and carrying on with our work that we had going, so I don't recall Andrew making any specific comments to me.
PN1660
Do you recall him making any comment to you about the consequence of the fact that you weren't going to accede to whatever concerns he had with the MPT offer?---No.
**** PETER ANTHONY WHELAN XN MR MOYLAN
PN1661
What was your understanding of the consequence of him not accepting the MPT offer?---He would remain an employee of the group under award conditions, and we would meet all requirements under the award conditions.
PN1662
Subsequent to, and I should ask you, as far as you are concerned, is that was has happened?---I am not close enough to the issues these days. I have been out of this section since March last year.
PN1663
Well, I shall put the question to you another way. Whilst you remained manager, it that your understanding of what then happened?---Yes, and I had a team leader, Ian McNeil, who was working through the issues in terms of getting adequate resource, and also addressing any of the issues that any of the employees had, so I took a step back.
PN1664
And when did you cease being the manager of that area?---March 2001.
PN1665
I have no other questions.
PN1666
THE COMMISSIONER: Thank you. Mr Rizzo.
PN1667
PN1668
MR RIZZO: Mr Whelan, I take you to paragraph 16 of your witness statement?---Yes.
PN1669
You say:
**** PETER ANTHONY WHELAN XXN MR RIZZO
PN1670
Ian McNeil kept me advised of rostering issuings and I did attend one work group meeting in April 2000 where it was discussed. Mr Bishop was not at the meeting due to work rosters. The context of the discussion revolved around the need to establish availability on the duty roster, and the issue of compensation of not all parties being contactable was addressed.
PN1671
We do actually have minutes from the company, Mr Whelan, that Mr Bishop was at that meeting on 6 April, and in fact, did raise a whole bunch of concerns about the issue of availability. Are you familiar with the minutes that have already been discussed, entitled "Work group meeting Thursday 6 April 2000"? These are work minutes kept by United Energy on that meeting, and they confirm that Mr Bishop was there, and in fact raised a whole bunch of queries and problems, and objections to the issue of rostered availability?---I am aware of the meeting. I believe we are referring to the same meeting. It was my recollection that Andrew wasn't present, but if you are telling me he was by the minutes, then I have to - - -
PN1672
THE COMMISSIONER: Well, in all fairness, you should be shown the minutes.
PN1673
MR RIZZO: I intend to, Commissioner. If the minutes can be shown to the witness.
PN1674
These are minutes of the same, Mr Whelan, provided to me by Mr Moylan - - - ?---Can I raise that - - -
PN1675
THE COMMISSIONER: Well, just hear Mr Rizzo out first?---Sorry.
PN1676
MR RIZZO: - - - and you will see that - perhaps if he could read the highlighted bit on that page and the following page?---Do you want me to read it out loud, or - - -
**** PETER ANTHONY WHELAN XXN MR RIZZO
PN1677
No, no jus read it to yourself?---Just read it to myself.
PN1678
I think they do demonstrate that Mr Bishop was there?---That is a different meeting to the one I am referring to. My recollections are the meeting was held in room 4 of the third level of the Pinewood United Energy building.
PN1679
So when you say, a work group meeting in April 2000, you are not referring to 6 April meeting 2000?---No, no it is not the one that my recollection is about.
PN1680
Okay?---So either I have the date of my one wrong, that the one I am clear about in the discussion I am referring to, was a meeting held in the small meeting room, the room that was known as room 3 or 4, on the third level of the Pinewood building.
PN1681
But nevertheless, let us grant that the meeting you are referring to is correct, and did occur?---Yes,
PN1682
You do say that Mr Bishop was not there, and therefore, was not subject to discussions about availability duty roster and the rest?---Sorry, repeat that question Mike?
PN1683
THE COMMISSIONER: Look, that is matter of deduction. The witness doesn't need to make that deduction, it is obvious if his evidence is that Mr Bishop wasn't there, he didn't hear what was said.
PN1684
MR RIZZO: Yes.
PN1685
THE COMMISSIONER: If that is accepted. If you are putting a contrary view to him, that is a different matter.
**** PETER ANTHONY WHELAN XXN MR RIZZO
PN1686
MR RIZZO: Well, I think we are a bit confused Commissioner, about which meeting we are actually talking about.
PN1687
THE COMMISSIONER: No, it seems there are two.
PN1688
MR RIZZO: Yes, there possibly are two, so I won't press this point any further as I think it is not going to - - -
PN1689
THE COMMISSIONER: Because you say that even if there was another one, Mr Bishop didn't hear what was said.
PN1690
MR RIZZO: Well, that is the point that I am making, yes.
PN1691
THE COMMISSIONER: Yes, but you don't need to make it through the witness.
PN1692
MR RIZZO: And if - - -
PN1693
MR MOYLAN: Sorry, if I can be of assistance, sir. Is it some document you are referring to are already an exhibit before the Commission?
PN1694
MR RIZZO: Sorry?
PN1695
MR MOYLAN: Is the document you are referring to already an exhibit before the Commission?
PN1696
MR RIZZO: The document Mr Whelan has?
**** PETER ANTHONY WHELAN XXN MR RIZZO
PN1697
MR MOYLAN: Yes.
PN1698
MR RIZZO: I think it has been extracts that have been read out to the Commission and have been referred to in the transcript.
PN1699
THE COMMISSIONER: No, it hasn't been exhibited yet - is that right?
PN1700
MR RIZZO: Sorry, Commissioner?
PN1701
THE COMMISSIONER: It hasn't been exhibited yet?
PN1702
MR RIZZO: No, I don't think it has actually been exhibited, no.
PN1703
THE COMMISSIONER: Don't be afraid of it, Mr Whelan, it is all right?---No, that is fine.
PN1704
Just keep it in the witness box with you there, it is perfectly harmless.
PN1705
MR RIZZO: Perhaps it should be Commissioner, because it has been referred to, I think on a number of occasions. Does the Commissioner want - - -
PN1706
THE COMMISSIONER: Was this witness present at the meeting? Where you present at that meeting?---My name is on it. I remember popping in for part of it, I was not there for - - -
PN1707
Do you recognise those - did you ever see those minutes before?---It doesn't ring a clear bell, but I do remember the comment about the video, the GST, I knew we were asked to make sure that all personnel saw it.
**** PETER ANTHONY WHELAN XXN MR RIZZO
PN1708
All right. Is there any objection to this being tendered as an exhibit?
PN1709
MR MOYLAN: No, sir.
PN1710
PN1711
MR RIZZO: Thank you, Commissioner.
PN1712
And Mr Whelan, you say that paragraph 7 and 8 of your witness statement, you say at paragraph 7:
PN1713
I had undertaken availability duty with UE and its predecessor, the SECV, and spent many years performing rostered availability duty, and had also undertaken chance availability duty for a period of 12 months.
PN1714
So you are familiar with the concept of rostered availability and chance availability?---Very much so?
PN1715
And how would you characterise one as opposed to the other?---Rostered availability is a process where you maintain a contactable situation, so that you can respond within a reasonable period of time, to any request to either provide advice, or to attend a location, be it field based, like a particular environment, it was normally a zoned sub-station or a field based location, but whatever, whereas chance availability was a situation where I undertook back in the very early 80s, where you would endeavour to make yourself available, but there was no demand that you must respond to a request. So therefore the difference was, one was - you were the first line of response, and the second process was that it would be good to have you there, but there would be other people who would share that requirement - - -
**** PETER ANTHONY WHELAN XXN MR RIZZO
PN1716
Yes?--- - - - so therefore, that was effectively the difference. It used to be a process so that people could get a community use of a government plated car.
PN1717
Sorry, remind me Mr Whelan, when did you start with the SECV?---1979.
PN1718
So over 23-odd years, and particularly in the 1980s when you worked both a rostered and chance availability, you were aware that there was a custom and practice of chance availability in the industry?---Yes, there was a practice of chance. It was mainly used - my recollections of it, it was mainly used for management, for access to community use of vehicles, and so therefore, the chance process was a way of being able to say, well they may be needed, but there was not the onerous conditions placed on it as per a rostered availability process, where you were expected to respond, regardless of your personal situation, that was the impost being requested upon.
PN1719
No more questions, thank you Mr Whelan.
PN1720
THE COMMISSIONER: Just before Mr Moylan is given the opportunity to re-examine, can you remember the interview with Mr Bishop?---In broad terms, because Andrew was very nervous, we - - -
PN1721
Can you remember the conversation at all?---Not - we had 25 of them, as I have indicated, so as I say, the clear thing that sticks out to me was Andrew's nervousness during the interview process- - -
PN1722
Mr Bishop has given evidence that it was not expressly put to him that the reference in the position description to availability was a reference to rostered availability. What is your response to that?---We - in the industry, United Energy as the industry, operate with only one form of availability, that is rostered availability, that is what is in the Quad E award, and it is certainly where I took guidance from, prior to adding that into the PD, was that there was only one form of availability and that was the rostered and we were moving to that process.
**** PETER ANTHONY WHELAN XXN MR RIZZO
PN1723
I saw that from your statement. Could I just repeat the question to you. Mr Bishop has given evidence that during the interview that you and another person, or was it another two?---There was two others, one was a HR person - - -
[11.30am]
PN1724
I thought it was two others, yes?---- - - and there was Peter Kendall.
PN1725
During that interview, where Mr Bishop applied for the position that he currently holds, at which you were present along with two other persons, his evidence is that it was not expressly said to him that the reference in the position description to availability duty was a reference to rostered availability?---The discussion of availability, and it is a vernacular that I use, that I believe the industry does understand that availability means a rostered format, was in the context of also breaking up and changing the roster process to match the workload and it was in this form of discussion that we would be changing the rosters around to match the workload, and in doing so we would make use of availability to cover the shortfalls where, particularly in an overnight situation where we were down to one person, if there was only one person there and that either the workload increased, and that was due to a storm or something blowing in, we would make use of availability to provide additional personnel.
PN1726
You haven't actually directly addressed whether or not someone said to Mr Bishop the reference to availability in the position description is a reference to rostered availability. Would you like to consider whether or not such a form of words was actually said by anybody at the interview?---To the best of my recollection we would have used the word availability, your Honour.
PN1727
All right?---Because it would be broadly known as - - -
PN1728
And the way in which you used it, as I understand it on your evidence, is that it was used to denote rostered availability?---Yes.
**** PETER ANTHONY WHELAN XXN MR RIZZO
PN1729
Now your evidence is that that is because it was the practice of the company and it was your understanding, and possibly others who were present, that that was what was referred to in the relevant award?---Yes.
PN1730
So that what I understand your evidence to be, is that, having regard to the custom and practice at the time of the interview within the company, in relation to availability, and the terms of the award, the use of the word "rostered" was superfluous in your view?---Yes.
PN1731
Is that an accurate summary of how the - the presumption upon which the interview proceeded?---Yes.
PN1732
And would it be your - will you accept that in those circumstances, the interviewers proceeded on the assumption that the use of the word "availability" in the position description meant, and was to be understood as, rostered availability?---Yes.
PN1733
PN1734
MR MOYLAN: In respect of your question that Mr Rizzo asked you regarding chance availability and rostered availability, do you tell the Commission your understanding of what actual obligation or duty is placed upon a person in, what is chance availability, to do anything?---There is almost no responsibility. It meant you were able to be over point 05 and not be able to respond. It didn't put a requirement on you, as does a rostered process. So there was no onerous conditions upon you to have to turn up, it was a chance, it is by chance you - - -
PN1735
THE COMMISSIONER: You are really just a list of people to be contacted?---Agree.
**** PETER ANTHONY WHELAN RXN MR MOYLAN
PN1736
Who would either accept or decline the request to make themselves available?---Agree.
PN1737
MR MOYLAN: Did you in fact - was there even an obligation to be on the list?---It was - that was dependant on the local arrangements and the people you worked with that were undertaking chance that there was - chance was exactly that. The company took a chance on you being able to respond.
PN1738
THE COMMISSIONER: It was actually treated, more or less, like a call out, wasn't it?---Yes.
PN1739
So there was a group of employees who put themselves down as potential call outs?---Yes.
PN1740
And you rang until you succeeded in obtaining a call out and you paid it as a call out?---Yes.
PN1741
Not on an allowance basis?---There were in some cases, and I am going back to the early eighties and the time I partook in a roster, and I think there was some allowance made to be on chance availability but it was a very low level.
PN1742
So you paid an amount, but not a significant amount of an allowance, for the volunteering, and then if the employee accepted and made themselves available, you paid a call out?---Yes.
PN1743
So in other words, you paid an allowance to be on the call out roster. In an other way of speaking, that is another way of describing chance availability?---Yes.
PN1744
MR MOYLAN: When was that practice again?---That when - - -
**** PETER ANTHONY WHELAN RXN MR MOYLAN
PN1745
Yes. When was that practised?---When I undertook chance was back in 1983/84 from memory. I was in the Metro Protection Group.
PN1746
THE COMMISSIONER: Let me just understand this. As far as the company is concerned, that must have stopped, having regard to the evidence that you have given so far, particularly in answer to the questions that I asked you. Because you said that, as far as the company was concerned, there was only one form of availability?---That was how I interpreted it and understood it. We worked by the award.
PN1747
So at the time of the interview, the situation in the company was, that chance availability was no longer a feature of company employment. Is that right?---No. Everybody was on chance, by the definition - if some incident, an arrangement occurred that you were phoned called up at midnight or whatever - - -
PN1748
You were no longer paying the chance allowance?---Not that I was aware of in the company, no. Certainly not in the areas that I - - -
PN1749
So your assumption is, that what had happened is that the concept of chance had really become outdated and that what was happening really was that the company would call out people, to the best of its ability, as required?---Yes.
PN1750
And that there wasn't a list of people who would be contacted and who would be paid the chance availability allowance?---No. Effectively, it wound out when most of the management staff that used to always do that type of work were moved on to novated lease vehicles. There was not the need to justify why a vehicle went home.
PN1751
So the form of management privilege changed?---Indeed.
**** PETER ANTHONY WHELAN RXN MR MOYLAN
PN1752
Good.
PN1753
MR MOYLAN: I have no further questions, Commissioner.
PN1754
THE COMMISSIONER: Thank you. Thank you for your evidence Mr Whelan?---Thank you.
PN1755
I will release you from your oath and you are free to come and go as you please?---Leave all this here?
PN1756
PN1757
THE COMMISSIONER: I will have Mr Kendall now, is it?
PN1758
PN1759
THE COMMISSIONER: Thank you, Mr Kendall. Please be seated. But please raise your voice just a little bit, would you please, when you are giving your evidence. Go ahead Mr Moylan.
PN1760
MR MOYLAN: Thank you, Commissioner. Mr Kendall will you give the Commission your full name?---My full name is Peter Albert William Kendall.
PN1761
And what is your current role with United Energy?---My current role is Manager, Network Control and Despatch, at the present time.
PN1762
And how long have you held that position?---Since August last year.
PN1763
And prior to holding that position, what position did you hold with United Energy?---Prior to that I was the Team Leader of the Control Centre, in the new organisation when it was formed, I was in the Team Leader role, working under Peter Whelan.
PN1764
And when did you take on that responsibility?---From, basically July 1999.
PN1765
And prior to July 1999, what was your role?---My role was Control Centre Adviser where I was a technical adviser to the controllers in the Control Room.
PN1766
And when did you take on that responsibility?---It was probably two years. I was a controller for a while and then I got out of that role as the adviser. I was probably in that role for 18 months prior.
PN1767
So that would take us - if I may, it is a leading question, sir, but it is not material that can be - - -
**** PETER ALBERT WILLIAM KENDALL XN MR MOYLAN
PN1768
THE COMMISSIONER: I mean I am quite happy for you to lead the witness through all of the evidence, as to the history of his employment.
PN1769
MR MOYLAN: So that would take us back to, what, early 1998?---Yes.
PN1770
Would you give the Commission a brief outline of your work history with the SECV and prior to that with United Energy?---Both. Okay. I started my training as a trainee with the SEC in 1996 [sic] so I have been in the industry for 36 years, basically, working in technical areas. I was a technical engineering assistant, actually graduated into field testing. Worked in various areas around the SEC. Was in the metropolitan area, out in Eastern Metro, which was based around Dandenong and the Peninsula. Moved into a group that looked after testing and commissioning sub-stations throughout the State, so I was the Field Testing Supervisor, so I was in that role. I was asked then to come into the operations area at the break-up of the SEC, basically. So I went into a planning role, in what was the DB Number 5 Control Centre at that stage. Started off as a planner, worked myself through the planning area. Moved on to Operational Controlling. Moved from that step into the adviser role, into a Team Leader role and now I am in a Manager role. That is my background.
PN1771
And you are involved in the process of restructuring of the resource or control centre operations which took place around May, June and July of 1999?---I was involved once I was appointed as the Team Leader, so it was more the implementation of the re-structure group.
PN1772
You have provided a statement to the Commission, with regard to the matters that are now before the Commission. Could I show you a copy of that statement? I believe the Commission already has a copy, sir. Is that your statement regarding - provided to myself, and in regard to the matter before the Commission?---Yes. Yes, that is my statement.
PN1773
I am sorry, sir, I thought I had this exhibit in front of me but I am all in disarray this morning. Could you identify the document from its front page - its top page - the top of the page?---Yes. The document basically says:
**** PETER ALBERT WILLIAM KENDALL XN MR MOYLAN
PN1774
Confidential Statement of P Kendall re Andrew Bishop Claim.
PN1775
Okay. Do you confirm that that statement is true and correct?---Yes I confirm that.
PN1776
In the statement you say that you were involved in the interviews as a member of the interview panel in June 1999 to appoint new Resource Co-ordinators?---Yes, that is correct.
PN1777
Can you tell the Commission, to the best of your recollection, the discussions that took place with the interview - with the candidates for the position, in the course of the interview?---In the course of the interview. There was five or so generic questions that were asked as part of the interview process. There was an area in that, where we discussed our vision of the future, which actually talked about the amalgamation of the various groups. We were picking up discrete site roles, combining them together. Picking up another traditional function that was outside our distribution organisation. We were also combining electric and gas despatch under the one roof as well. We talked about the issues that this - our thoughts on rostering at that stage - we were a little bit unsure of workloads, where things were going to go but we were endeavouring to implement new rosters, get out of our basic 12 hour fixed roster. Have flexibility within the group to be able to jump through different rostering arrangements to meet the workload and there would be requirements, because we were going down to one despatcher during the evenings, for having availability coverage for extra workloads or whatever. So that was discussed, in principle, just to get the people's views and the question was around what issues did you have with working those arrangements.
PN1778
You also say - in terms of that, you make mention of MPT?---The MPT was discussed, that that would be offered to the successful candidates at interview. Again, it was acknowledged that some of the interview candidates were on MPTs at that stage, some were on award. But at the end of the process it would be offered to everybody and that there would be a negotiation process to work through if people weren't happy with the arrangements. But I think it was also stressed that the acceptance of the MPT wasn't mandatory.
**** PETER ALBERT WILLIAM KENDALL XN MR MOYLAN
PN1779
Was it indicated - well, what was indicated to the employees there employment conditions would be if they didn't accept the MPT?---They would remain on their award.
PN1780
Your document also refers to a meeting held with the successful candidates on 1 July 1999?---Yes, it does.
PN1781
And did you attend that session?---Yes, I was a member of the team. There was myself, Peter Whelan and Shaun Bassett, who actually went through various items at the meeting.
PN1782
Sorry, sir, I am trying to find an exhibit and I have managed to file it away in such a way that it doesn't readily come to hand. The exhibit I am about to hand the witness, sir, is exhibit R3, I believe.
PN1783
THE COMMISSIONER: That is right. I can see what you have got. That is the roster.
PN1784
MR MOYLAN: That is right.
PN1785
Would you identify that document for the Commission please?---That is the copy of the draft roster that was handed around for discussion at the meeting.
PN1786
It was handed out at the meeting?---At the meeting. Yes.
PN1787
Who prepared the document?---I prepared the document. It was based on an existing roster that was used in the ..... area and I had modified it since - the handwriting on it - to try and reflect what we were going - proposing to do with the rosters.
**** PETER ALBERT WILLIAM KENDALL XN MR MOYLAN
PN1788
THE COMMISSIONER: Can I see it, please?
PN1789
MR MOYLAN: With respect to that document, the handwriting on it, it is yours is it?---Yes, the handwriting is mine.
PN1790
Have you made any modifications to the document since you provided it at the meeting?---I think the only modification was a little scribble with the numbers up the top. The rest of the document is the original.
PN1791
And how was the document provided to the employees that were at that meeting?---It was basically handed out as a draft of where we would like to be in September, when we actually were able to combine both gas and despatches under the one roof.
PN1792
THE COMMISSIONER: Was a copy provided to everyone, was it?---Yes. It was handed out for discussion.
PN1793
THE COMMISSIONER: Multiple copies were made prior to the meeting in the form of the document before you?---Yes. Yes, just multiple copies handed out. Yes.
PN1794
MR MOYLAN: And in respect of that, the document has, in the columns to it, a number of columns where the letter "d" is followed by the small letter "a", in handwriting?---Yes, the little "a" was supposed to indicate the availability requirement for that individual on that day.
PN1795
THE COMMISSIONER: For which individual?---For example, if we were looking at Monday 13 September 1999, we move along to the - past the asterisk there is a little letter, there is a big "D" and a little "a". In the final roster, that vertical column would actually have a name of an individual above it which is not on that roster. So across the top - - -
**** PETER ALBERT WILLIAM KENDALL XN MR MOYLAN
PN1796
There weren't any individual names attached to this?---No. No, certainly, it was just a proposal - - -
PN1797
Just an example of what you were proposing?---To do and hoping to get discussion and feedback, either at the meeting or after the meeting.
PN1798
Understood.
PN1799
MR MOYLAN: Do you recall any discussion that took place by the participants in the meeting regarding that issue?---Certainly, there was general discussion about what was meant with the gas and electric. About the training requirements to start the multi skilling because there was a long term aim to get the one despatcher to be able to despatch both energy sources. It was stressed that we wanted to work with the group to get a roster that was going to meet everybody's needs and it was also stressed that, because we were trying something for the first time, we as a group were going to be flexible in actually moving things around and to try and match workloads - resourcing with workloads. So it was basically, here is our first draft on the table, that is our thought, that is our reasoning. The little bar charts on the side was the indication of trying to work through manning levels versus workload and again, this was at July and our thoughts of when we were going to implement at the start of December. So basically starting that process off to get through to September and get a final working document.
PN1800
In respect of that, was Mr Whelan - sorry was Mr Bishop, at that meeting?--- Yes, in my understanding Mr Bishop was at the meeting.
PN1801
Was there any discussion as to the nature of the availability that was being spoken about?---I cannot recall any discussion. I do recall that we did not really talk in specifics about things, but I can't recall - sorry I can recall that there was discussion about availability duty, of how much and how long. Hence, the annotations down the bottom that we would probably have to start off with a one in three roster. Where one person works that, and with the cross skilling training, the view was that it would go out to one in four.
**** PETER ALBERT WILLIAM KENDALL XN MR MOYLAN
PN1802
THE COMMISSIONER: What has been the practical experience of it?---Well, at the moment we are probably about one in ten. We went through an issue where we couldn't implement come September, for sickness, a lot of other reasons, communications issues, we couldn't get the group together. When we did we had a lot of sickness and illness so we never had the numbers to implement it. Since we have actually built up the numbers within the group to an amount that can sustain a roster it is basically, we are calling it a one in five. Due to the roster rotation, people work a 12 hour day/night shift. They are not required for doing that for their period on that roster. When they come out of that they work a fixed day roster as part of the rotation arrangement and while they are doing that they work that availability duty, during that period.
[11.50am]
PN1803
THE COMMISSIONER: How many weeks a year?---At the moment it is approximately five weeks per year, well per a roster cycle, which is about 50 weeks, that is to get everybody through this complete rotation?
PN1804
Five weeks per 50 weeks, and that is without Mr Bishop's participation?---No, Mr Bishop's name has been on the roster so - - -
PN1805
So the frequency would be the same?---Yes, yes.
PN1806
What has happened when he has been on the roster?---Well, the first couple of times, we had talks with Andrew, and he agreed to participate for the first couple of weeks.
**** PETER ALBERT WILLIAM KENDALL XN MR MOYLAN
PN1807
On a without prejudice basis?---Yes, yes, and then since then we have done a couple of mutual swaps. We have had to change the roster a little bit anyway, so it was actually written over the next period that Andrew was due, but again, he was coming out of the short cycle into the 12 hour shift where there wasn't that exposure for Andrew as an individual?
PN1808
Thank you.
PN1809
MR MOYLAN: Your statement states that there were no dissenters to the roster, where you say:
PN1810
This proposed roster is accepted by the group with no dissenters.
PN1811
?---Mm.
PN1812
You have outlined some of the discussion that took place. Was there any further discussion that you would want, that occurred in the group that you can assist the Commission by advising the Commission of?---Certainly. There was some personal approaches to me after that original meeting for the next couple of weeks, just with ideas about maybe changing roster cycles, but basically the impetus went away due to the workload and the situation that we were in, managing our day to day activities so it didn't - - -
PN1813
THE COMMISSIONER: So nothing came of it in the medium term?---No, certainly not, no.
PN1814
How long between this meeting was the time up until the - for the implementation of an availability roster like this?---We actually tried to start it a couple of times, with hiccups. I think that there was probably 15 months, I think that it was mid '99-2000, probably around about the Christmas 2000-2001.
**** PETER ALBERT WILLIAM KENDALL XN MR MOYLAN
PN1815
So you suggested that this is the direction that you like to head, and you put this forward for discussion?---Mm.
PN1816
But it wasn't until 15 months later that some action was taken to, well, there were attempts - - -?---Yes, we certainly had attempts to try and - - -
PN1817
- - - which were unsuccessful, but about 15 months later you made more concerted efforts and were able to bring in something like this?---Yes, but again, it didn't continue full-time, is probably my understanding. From mid last year, we will have actually had our numbers in a stable position and it has worked for the last 12 months.
PN1818
I see. So it wasn't until midway through 2001 that was practical to actually embark on a rostering arrangement like this, and even so, it is quite different to this in terms of the frequency?---Yes.
PN1819
It is about half the frequency you originally - - -?---Yes, during that period of time we have managed to cross-skill some individuals and the skill base of the whole group has gone up a bit so there was more numbers actually available.
PN1820
Thanks. Yes, Mr Moylan.
PN1821
MR MOYLAN: With the - did Mr Bishop make any comments regarding the roster arrangement in the discussions that took place on 1 July?---I can not recall Andrew specifically. The framework was a group discussion. There was lots of individuals talking about it.
PN1822
Did Mr Bishop - Did Mr Bishop subsequently have any discussions with you about that proposed roster? That is to say, at any time after the meeting about that proposed roster?---We certainly had informal discussions for periods of time about Andrew coming out of the 12 hour roster going into the day roster, but again, that is - again we never had a stage to say well, we are really going to formally talk about it because it is going to happen. We just limped along.
**** PETER ALBERT WILLIAM KENDALL XN MR MOYLAN
PN1823
Were there any discussions on the availability issue?---Certainly at that stage the availability issue was not part of those discussions.
PN1824
Mr Bishop's evidence is that he has never seen that document before. Would you comment on that?---I have sworn that that was handed out at the meeting. I am quite clear of that.
PN1825
THE COMMISSIONER: Do we have the minutes of this meeting?
PN1826
MR MOYLAN: I don't believe it was a minuted meeting, sir.
PN1827
THE COMMISSIONER: There were no minutes?---No, no. It was - there was - it was a get together of all the successful candidates - - -
PN1828
On what day?---1 July 1999. We had just completed interviews and I think it was - the week after the interviews we got all the successful candidates in the room together and said here is an outline of what the new section is about and how it was going to operate.
PN1829
Is it possible - sorry, I am addressing Mr Moylan now. Is it possible to establish whether or not Mr Bishop was at work that day?
PN1830
MR MOYLAN: Pardon?
PN1831
THE COMMISSIONER: Is it possible to establish by reference to the company's records, whether or not Mr Bishop was at work that day?
PN1832
MR MOYLAN: On 1 July, yes. Well, he would be by inference from our payroll records, certainly, sir. But I don't believe it is contested that he attended the meeting on 1 July. I believe that has already - - -
**** PETER ALBERT WILLIAM KENDALL XN MR MOYLAN
PN1833
MR RIZZO: Commissioner, it is not contested for our part.
PN1834
THE COMMISSIONER: He was there, but he says that the document was not given to him.
PN1835
MR RIZZO: No, it was not contested that Mr Bishop was at the meeting.
PN1836
THE COMMISSIONER: Yes.
PN1837
MR RIZZO: As to whether he received the document or not, and in which form he received it, I can not comment on that.
PN1838
THE COMMISSIONER: So the issue is whether the document was actually distributed at the meeting or alternatively, whether or not he received a copy of it.
PN1839
MR RIZZO: That is correct, Commissioner.
PN1840
THE COMMISSIONER: Can you give us any information about that?---Well, yes. There was a photocopied stack of documents that were passed around the group of that roster. So it wasn't individually given to each one. Just a pass around.
PN1841
All right. So it was available at the meeting on your evidence?---Yes, yes.
PN1842
MR MOYLAN: Just to clarify that, was a sufficient number provided for each person at the meeting?---I would have expected that there was. I can not confirm that.
**** PETER ALBERT WILLIAM KENDALL XN MR MOYLAN
PN1843
In the management of the rosters that take - for the work group, the - could you tell the Commission how those rosters are managed?---Is that how we manage them now?
PN1844
Yes?---Yes. Basically we have got two separate rosters for our electrical control group and our despatch group. The control group is self-managed within individuals. They have got - we lay down the manning requirements of how many of what particular skill controllers we need each day, and they will manage any leave or issues like that and the team leader oversees that or is there to resolve issues. There is a similar - sorry, and there is one controller. They are responsible for rosters. There is a similar process works in the despatch resource coordinator area, where they have got their manning criteria. There is a roster administrator who looks after leave and other issues, keeps the leave up to date and there is a team leader sitting above to resolve any issues. So that is the basic management.
PN1845
In respect of that, what role do individual team members play in the rostering?---In the rostering, the individuals have got the requirement to work through and make the roster numbers - the required roster numbers work, I suppose. We don't try to influence them how they do that on a daily basis. So we give them a little bit of flexibility within the way the working of that goes.
PN1846
And who is the manager of that roster now?---The roster - the manager is Ian McNeil, the team leader for the resource coordination group.
PN1847
Taking you back to the meeting and to any subsequent meetings, have you had - other than Mr Bishop, have you had any discussions with other employees about the issue of rostered availability?
PN1848
THE COMMISSIONER: What is the relevance of that?
PN1849
MR MOYLAN: Sorry, sir. That is a leading question. I will rephrase.
**** PETER ALBERT WILLIAM KENDALL XN MR MOYLAN
PN1850
THE COMMISSIONER: No, no. It is the relevance of conversations with other employees escapes me.
PN1851
MR MOYLAN: The relevance would be that - as to whether or not there was an issue with those other employees as to the nature of - - -
PN1852
THE COMMISSIONER: Yes, but I am not adjudicating on any issue concerning any other employee, am I?
PN1853
MR MOYLAN: With respect, however, sir, the test of the High Court in Bernard Frew v Australian Airlines in respect of custom and practice is a test of notoriety and the definition of that provided by the High Court is that it is so well known that the parties contracting to it - - -
PN1854
THE COMMISSIONER: Well, how would this hearsay establish - - -
PN1855
MR MOYLAN: Pardon?
PN1856
THE COMMISSIONER: How would this hearsay that you are proposing to have accepted as evidence, go to that?
PN1857
MR MOYLAN: My - the issue there, sir, would be that if there were - first of all, the evidence would not be hearsay. It would be - - -
PN1858
THE COMMISSIONER: Well, look - - -
PN1859
MR MOYLAN: The evidence the witness himself as to any discussions that he had. I appreciate, sir, that that would not take it as being the evidence of any person that he had discussions with - - -
**** PETER ALBERT WILLIAM KENDALL XN MR MOYLAN
PN1860
THE COMMISSIONER: But the discussion must inevitably lead to some sort of hearsay, mustn't it, in the sense that if you are going to ask him whether or other employees believe that availability duty is notorious as to its characteristics, then they - - -
PN1861
MR MOYLAN: That I would accept, sir, as being hearsay.
PN1862
THE COMMISSIONER: Yes. All right. Well, go ahead and ask the question.
PN1863
MR MOYLAN: Have you had any other discussions with employees about the nature of the availability that is required for - subsequent to the meeting of 1 July?---Certainly subsequent to the meeting there has been discussions about the availability, more issues with being able to provide the duty, some ....., women with children problems and we have been able to work through issues like that with mutual swaps or change arrangements. So it was more the administration of the availability roster.
PN1864
THE COMMISSIONER: I thought that might shortcut it, but - - -
PN1865
MR MOYLAN: Pardon?
PN1866
THE COMMISSIONER: I said I thought that might shortcut it, but surely the notoriety is the notoriety referred to in the relevant instrument, isn't it?
PN1867
MR MOYLAN: No, sir. My reading of the decision in Bernard Frew is that the notoriety - - -
PN1868
THE COMMISSIONER: Anyway, look, let us - - -
**** PETER ALBERT WILLIAM KENDALL XN MR MOYLAN
PN1869
MR MOYLAN: I appreciate, sir, that the issue comes back to a - - -
PN1870
THE COMMISSIONER: You probably are misunderstanding me. It is - the custom and practice that is involved in this is the term of an industrial instrument, is it not?
PN1871
MR MOYLAN: Sorry? I am sorry, sir?
PN1872
THE COMMISSIONER: The custom and practice that you are referring to, is a term of an industrial incident, is it not?
PN1873
MR MOYLAN: It would be my submission, sir, that the custom and practice - - -
PN1874
THE COMMISSIONER: In the agreement, is it not?
PN1875
MR MOYLAN: The custom and practice referred to in the High Court decision would - - -
PN1876
THE COMMISSIONER: Yes, well, just leave Bernard alone for a moment.
PN1877
MR MOYLAN: Yes.
PN1878
THE COMMISSIONER: It is getting a bit of a flogging. What I am suggesting to you just for the sake of clarification about this, is that what is relied on is perceived by the ASU to be a legal obligation on the company to observe custom and practice. And that legal obligation arises from the agreement, does it not?
**** PETER ALBERT WILLIAM KENDALL XN MR MOYLAN
PN1879
MR MOYLAN: That is their argument, sir.
PN1880
THE COMMISSIONER: Yes. That is the point that I am making to you. It is the object of the agreement's terms that must be notorious, not what has happened since July.
PN1881
MR MOYLAN: In respect of that, sir, I will be making - - -
PN1882
THE COMMISSIONER: In due course, I will hear you on that.
PN1883
MR MOYLAN: Yes.
PN1884
THE COMMISSIONER: The point that I am making - - -
PN1885
MR MOYLAN: But the difficulty I have - - -
PN1886
THE COMMISSIONER: - - - is for the purpose of the evidence that we are taking - - -
PN1887
MR MOYLAN: The difficulty I have, sir, is that on my reading of the case, there is - the High Court possets a test which is the test of notoriety for what is a custom and practice and that - - -
PN1888
THE COMMISSIONER: That is for the purpose of the incorporation of an implied term of a contract of employment, is it not?
PN1889
MR MOYLAN: That is correct, sir.
**** PETER ALBERT WILLIAM KENDALL XN MR MOYLAN
PN1890
THE COMMISSIONER: We are not here concerned with that. That is the point that I am just trying to alert you to. I will hear you on it in due course, but that is not the nature of the question that we have to address here. We are not asking was an award incorporated as an implied term of an employee's contract of employment. The question we are asking is, amongst others, is, is a term of the agreement which requires observance of custom and practice being complied with by the company. But let us deal with that later. We have got a witness here. I just didn't want us to go - - -
PN1891
MR MOYLAN: Yes, the issue you are raising, sir, isn't where I would want to take the witness. My reading of Bernard Frew doesn't - - -
PN1892
THE COMMISSIONER: I have read Bernard Frew so many times, Mr Moylan, that I could almost recite it in my sleep.
PN1893
MR MOYLAN: I have got to say, sir, in the last few weeks, I could probably have been reciting in my sleep.
PN1894
THE COMMISSIONER: Yes. What I am trying to point out to you is it is not on point. The nature of the decision was about the incorporation of the terms of industrial awards into the contract of an employee's employment.
PN1895
MR MOYLAN: I will - sir, I will address you on that in - - -
PN1896
THE COMMISSIONER: What we are here - - -
PN1897
MR MOYLAN: I will address you on that in submissions.
PN1898
THE COMMISSIONER: Yes. What we are here concerned with - - -
**** PETER ALBERT WILLIAM KENDALL XN MR MOYLAN
PN1899
MR MOYLAN: Yes, I will address you on that in submissions.
PN1900
THE COMMISSIONER: - - - is the operation of the agreement. There is no need to incorporate anything by implication for the purpose of this matter. So let us not have any evidence about that. The point of - and the other aspect as to notoriety is the custom and practice referred to in the industrial instrument, the agreement, is a specified custom and practice, is it not?
PN1901
MR MOYLAN: The custom and practice in - - -
PN1902
THE COMMISSIONER: Referred to in the relevant certified agreement, is a specified custom and practice, is it not?
PN1903
MR MOYLAN: If the Commission is referring to the United Energy 1998 Enterprise Agreement - I am unclear on the question that inasmuch as clearly the words of the agreement do not specify any custom nad practices. They do not, for example, provide an appendix which says these are the custom and practices.
PN1904
THE COMMISSIONER: What do you see are the custom and practices that the agreement refers to?
PN1905
MR MOYLAN: That will be again, sir, a matter of submission inasmuch as my reading is that they have proposed to you approximately three different things which they define as custom and practice.
PN1906
THE COMMISSIONER: No, no. I am not referring to the ASU's perspective. I was referring to what custom and practice it is that you think the agreement refers to.
**** PETER ALBERT WILLIAM KENDALL XN MR MOYLAN
PN1907
MR MOYLAN: Sorry?
PN1908
THE COMMISSIONER: What custom - - -
PN1909
MR MOYLAN: Sorry, sir. I am partly - - -
PN1910
THE COMMISSIONER: I beg your pardon. What custom and practices does the agreement refer to from the perspective of the company?
PN1911
MR MOYLAN: The company, sir, believes that it is alleged that the custom and practice referred to is that - - -
PN1912
THE COMMISSIONER: No, no.
PN1913
MR MOYLAN: - - - persons working in - - -
PN1914
THE COMMISSIONER: No, you misunderstand me, Mr Moylan.
PN1915
MR MOYLAN: Yes.
PN1916
THE COMMISSIONER: The agreement says that certain custom and practices are to be observed by the company. Does it not?
PN1917
MR MOYLAN: The agreement?
PN1918
THE COMMISSIONER: Mm.
**** PETER ALBERT WILLIAM KENDALL XN MR MOYLAN
PN1919
MR MOYLAN: I don't believe that the agreement carries those words by its natural construction, sir.
PN1920
THE COMMISSIONER: Does it carry those words at all in its expressed terms?
PN1921
MR MOYLAN: In its expressed terms, it is our submission, sir, that one would be reading more into the expressed terms than that it preserves those - it lays out a number of - that will be a matter for - - -
PN1922
THE COMMISSIONER: Well, maybe you need to elaborate that.
PN1923
MR MOYLAN: That will be a matter for submissions, sir.
PN1924
THE COMMISSIONER: Yes, what I am really driving at, Mr Moylan, and obviously I am not doing it very well, is that the instrument, if it uses the words custom and practice, must refer to something.
PN1925
MR MOYLAN: Yes, sir.
PN1926
THE COMMISSIONER: Now it could be custom and practice in its completely general sense, or it could be custom and practice specified by some form of words. But whatever the scope of the custom and practice identified by the agreement, for the purpose of these proceedings, that is what the evidence would need to be about, not custom and practice that may have arisen since the making of the agreement. Custom and practice by definition in this matter, must be antecedent, must it not? Things done in the past which precede the making of the agreement.
PN1927
MR MOYLAN: In that term, sir, I accept that if there is custom and practice the reference point for it is at the time of the making of the agreement.
**** PETER ALBERT WILLIAM KENDALL XN MR MOYLAN
PN1928
THE COMMISSIONER: All right. Yes, all right. Well, I think we have probably arrived at the point of commencement and that is that if you are questioning the witness now about what has happened since that agreement was actually entered into, about custom and practices extant now or which have developed during the life of the agreement, they are not the customs and practices referred to in the agreement, are they?
PN1929
MR MOYLAN: No, I accept - I see entirely where you are coming from, sir, and I do accept that - - -
PN1930
THE COMMISSIONER: Yes, yes. So if we are going to go into this subject, we should do so in a way that is - the evidence should be relevant to the question that I have to deal with.
PN1931
MR MOYLAN: Thank you, sir.
PN1932
In respect of the concept of chance availability, are you familiar with that?---Yes, I am.
PN1933
Would you describe to the Commission what you understand it to mean?---Probably best from my experience, I have worked both chance availability and availability. Basically chance availability was where your phone number is available to be called, but there is no obligation to either respond to the phone call or actually be there to take the phone call; where availability is a rostered arrangement where you make yourself available to do the specified duties or respond as required. So that has been my general - that has been my experience all through my 36 years in various areas of - with the SEC.
PN1934
Would you tell the Commission what obligations chance availability places upon you?---Basically no obligations. It is at your whim. If you believe that the circumstances are right and you can respond, it is entirely on your decision.
**** PETER ALBERT WILLIAM KENDALL XN MR MOYLAN
PN1935
THE COMMISSIONER: Was chance availability on the company's case, a custom and practice of the - - -
PN1936
MR MOYLAN: Pardon?
PN1937
THE COMMISSIONER: Was chance availability on the company's case, a custom and practice of the SEC then?
PN1938
MR MOYLAN: The company acknowledges, sir, that within the SECV there was a thing called chance availability.
PN1939
THE COMMISSIONER: The evidence of the witnesses would seem to suggest that it was notorious. It has been well known to both of your witnesses and they have participated in it themselves.
PN1940
MR MOYLAN: I don't want to stray into this, sir, because if I answer this question I am going to have recourse - - -
PN1941
THE COMMISSIONER: Well, I am giving you the opportunity to answer the question through the witness if you want to.
PN1942
MR MOYLAN: That - - -
PN1943
THE COMMISSIONER: In an evidentiary manner. What I am saying to you is that the evidence of the two witnesses you have called is to the effect that they are familiar and were familiar over a long period of time, with chance availability as a feature of employment in the SECV and that they themselves, participated in it. That would seem to suggest that your evidence is to the effect that it was notorious, ie, well known.
**** PETER ALBERT WILLIAM KENDALL XN MR MOYLAN
PN1944
MR MOYLAN: It is not our argument, sir, that it wasn't known in the SECV.
PN1945
THE COMMISSIONER: All right. Well, I just wanted to understand that because - I just wanted to be clear on that.
[12.25pm]
PN1946
MR MOYLAN: I want to take you now to - no, in fact, sir, I have no further questions.
PN1947
THE COMMISSIONER: Thank you, Mr Rizzo.
PN1948
PN1949
MR RIZZO: Mr Kendall, I will just take you to this very briefly because I think you have basically answered the question, but you said in response to Mr Moylan's question that you were available - you are available with - you are familiar with rostered and chance availability and that these two types of availability have existed for many many years in the SEC and you have experienced those personally. Would it also be correct to say that even after the SECV broke up in '94 - '95 and United Energy came into effect, that chance availability was still a continuing feature at United Energy?---Certainly not in my experience. Look, I suppose the availability - that was certainly ongoing in United Energy. I was not aware within my personal sphere of the company that chance availability was going on. So all the words were around availability, which again has inferred rostered, and if there was other availability they were talking chance availability. And again, we never really - those words weren't used in my circle of exposure in there, we were always talking about availability and I was aware it was rostered availability.
**** PETER ALBERT WILLIAM KENDALL XXN MR RIZZO
PN1950
But you have said that chance availability did exist for many many years over the period of the SEC?---Yes, yes, it did.
PN1951
Mr Bishop has sworn evidence to this Commission that he was on chance availability, not only during the time of the SECV but post the time of United Energy when it became privatised, right up until July 1999 when the positions were interviewed and filled. Are you familiar that Mr Bishop was on chance availability during that period?---Look I didn't have a personal contact, I interacted with his group, which was in a different division, and I was not aware of their arrangements. I knew that there was some requirement to get people back after hours, whether it was chanced or swapping days or whatever, I wasn't party to that.
PN1952
THE COMMISSIONER: Could I just ask you this. Having regard to your evidence about the piece of paper that you distributed at the meeting - - -?---Yes, Commissioner.
PN1953
- - - did that constitute a change, was that a new way of doing it?---Yes. Well it constituted availability.
PN1954
All right. So up to that point had employees been required to perform rostered availability duty?---Well that - yes, yes in the controller part of the group, that was the norm in there and that was the way it was detailed on the roster and when it was talked about - talked to the controllers this is what it is about and it was about availability duty, if that makes it clear.
PN1955
Not quite?---No, okay.
PN1956
You were obviously moving to a slightly different situation. That was the need for the discussion, was it not?---Yes. The actual movement or the change or the requirement for the availability came about due to our concern about having the one person on after hours, due to - - -
**** PETER ALBERT WILLIAM KENDALL XXN MR RIZZO
PN1957
But prior to that?---Yes.
PN1958
Did this roster operate prior to that?---Not in its form, as described there, no. No, we - - -
PN1959
No. What operated prior to that?---We managed day to day, phoning around people that were available who hadn't worked extra hours.
PN1960
So rostered availability wasn't being used?---No, no, and it was more - it was for coverage for people that were sick and we just started to ring until we got someone there.
PN1961
Right. All right?---That worked out - I worked there sometimes. Peter Whelan actually filled in in the role too.
PN1962
Thank you. Are you suggesting, Mr Rizzo, that Mr Bishop received chance availability allowances?
PN1963
MR RIZZO: No, he did not. He informs us that he did not receive those allowances.
PN1964
THE COMMISSIONER: So that in fact it is inaccurate to describe what happened post-SECV as chance availability in SECV terms.
PN1965
MR RIZZO: No, it is not, Commissioner. There is - you would appreciate that the SECV was a huge organisation and the custom and practice in relation to chance availability while in general, I think from memory was true that in some instances there was a small allowance paid to be on chance availability, but in many instances there was no allowance paid at all to be on chance availability.
**** PETER ALBERT WILLIAM KENDALL XXN MR RIZZO
PN1966
THE COMMISSIONER: All right. So you say it was really a call out arrangement.
PN1967
MR RIZZO: It was a call out arrangement.
PN1968
THE COMMISSIONER: Is that - would that be accurate that up until the time you formalised the rostered availability arrangements, and you commenced doing so at about this time, that you simply used call outs to cover absences?---If that is just ringing through - if that is what ringing through - - -
PN1969
Yes, just ringing whoever you can get?---Yes.
PN1970
And get them in?---Yes.
PN1971
And you pay them a call out allowance?---Yes, yes.
PN1972
Or a minimum - - -?---Yes, certainly there were no structure - - -
PN1973
A minimum - call in minimum payment?---Yes.
PN1974
Is that - was that the practice?---That was basically the practice, yes.
PN1975
MR RIZZO: I refer you, Mr Kendall, to your witness statement, to paragraph 2. Towards the end of paragraph 2 you say:
PN1976
During the interview process the new sections vision and future was discussed by Peter and myself with each candidate, covering flexibility and rostering arrangements, gas electric multi-skilling, new work locations, perceived changes to business processes, availability and MPT.
**** PETER ALBERT WILLIAM KENDALL XXN MR RIZZO
PN1977
Apart from your witness statement, do we have any evidence that the issue of rostering arrangements and availability was discussed with candidates?---Well, I have stated that we did as part of the interview - it was part of that interview question number four, that I referred to.
PN1978
Yes, I appreciate that it is in your statement, but do you have any other - do you have any evidentiary - do you have any material or documentary evidence to that effect?---No, I don't have any documented evidence.
PN1979
THE COMMISSIONER: Well, that it is not strictly true, I don't think. You said that there was a piece of paper that had question number four written on it?---Yes, but question number four was about what - have you got any issues with what we are describing, it was capturing - trying to capture the candidates ideas of how we could improve.
PN1980
I see?---The actual - the vision part wasn't documented as part of the question.
PN1981
Understood?---That was to set the scene.
PN1982
Do we have this document? Are we going to get this document?
PN1983
MR MOYLAN: I will seek to have it - - -
PN1984
THE COMMISSIONER: Yes.
PN1985
MR MOYLAN: I understand it is with - - -
PN1986
THE COMMISSIONER: Yes, we can't make much sense of it without the document, yes.
**** PETER ALBERT WILLIAM KENDALL XXN MR RIZZO
PN1987
MR MOYLAN: Yes, it is with Mr Whelan I understand, sir.
PN1988
THE COMMISSIONER: Very well.
PN1989
MR MOYLAN: I will talk with him during the lunch break about making it available.
PN1990
THE COMMISSIONER: Good, thank you.
PN1991
MR RIZZO: And in the next paragraph, Mr Kendall, you say:
PN1992
During this process I cannot recall Andrew or any other candidates discussing the availability requirements.
PN1993
Mr Bishop has said in his witness statement that he has no recollection at all about availability being - specifically being canvassed with him. Is it possible that Mr Bishop didn't raise any objections, as you say in your witness statement, simply because it wasn't put to him?---The document was circulated to the group with the proposed roster and with the words about availability, being required for certain positions in the actual roster.
PN1994
Yes?---So that was discussed with the group as a draft of where we believed we were going to go - will be at come 1 September.
PN1995
Mr Kendall, you are aware of Mr Shaun Bassett?---I am aware of Shaun Bassett.
PN1996
Yes. In Mr Bassett's evidence, he had been presented with an R3, which is the document that you have about the roster. His evidence was that, one, he could not really recall the document and he disputed the document in terms of the handwritten notes that were attached to the document?---Right.
**** PETER ALBERT WILLIAM KENDALL XXN MR RIZZO
PN1997
I think you have said that those handwritten notes are yours?---Yes.
PN1998
Yes. And those handwritten notes were part of the document that was handed out on 1 July?---Yes, except for the numbers up the top, as I said before.
PN1999
And do you recall Mr Bassett being at that meeting?---He was certainly a part of the meeting - he was in and out because he was doing other things but, yes, he was at the meeting.
PN2000
Yes. And yet as I say to you he put evidence before the Commission that he has no recollection of this document at all and would question the, as I say, the handwritten notes in the document. Do you have any idea why Mr Bassett would form that view?
PN2001
THE COMMISSIONER: That is not a - well, I will let you ask it.
PN2002
MR RIZZO: Sorry, Commissioner?
PN2003
THE COMMISSIONER: It is an objectionable question.
PN2004
MR MOYLAN: Yes, I will make that objection, sir. The question is asking the witness to form a view of the state of mind of another person. He just does not have those capacities therefore the foundation of asking the question is objectionable.
PN2005
MR RIZZO: I will withdraw that - - -
PN2006
THE COMMISSIONER: You can rephrase it, if you want to.
**** PETER ALBERT WILLIAM KENDALL XXN MR RIZZO
PN2007
MR RIZZO: I will withdraw it, Commissioner.
PN2008
Mr Kendall, over the page at the top of page 2 of your witness statement, you say:
PN2009
The issue of availability was not explored by me with Andrew, in my six months as his team leader, due to the impacts of inadequate staffing levels, extended sicknesses, etcetera.
PN2010
Yes, so I think you have already said in response to Mr Moylan's question that this is a very stop start sort of process?---Yes.
PN2011
And it seems to me that the issue of rostered availability was coming on and off the agenda at various times, would that be correct?---The issue of the roster was on and off the agenda at lots of times due to the sickness, yes.
PN2012
Yes?---Yes, all the issues around that - the actual cross-skill training and everything, that was involved or envisaged would actually work with the roster.
PN2013
So given that this was an off-on process which extended over a very long period of time, I think it is somewhere between 15 and 18 months this period of time, my question to you is that, therefore is it not surprising then that Mr Bishop didn't explore with you in the six months as his team leader the question of rostered availability, given that was off the agenda more than it was on the agenda?---Yes, look, certainly the actual general roster wasn't discussed at all during that period due to the workload so there was no real interchange about how we were going to implement it.
PN2014
Yes?---Yes, I would agree.
**** PETER ALBERT WILLIAM KENDALL XXN MR RIZZO
PN2015
Would it be fair to characterise that Mr Bishop, between July '99 when he was appointed to the position and July 2001 when United Energy decided to put the roster availability into place, in that two year period, that Mr Bishop still continued to work on the basis of chance availability?---Mr Bishop was on that call arrangement, he was one of the names on the list that we would try and call. We never said it was chance availability, it was a call arrangement if we had someone missing or somebody sick, we made our best endeavours to get coverage - - -
PN2016
THE COMMISSIONER: Was there a list?---No, no, it was just Peter would start to ring, just people's knowledge of who had worked the night before, who had worked the day before and he would just start to ring.
PN2017
MR RIZZO: But isn't what you have just described actually chance availability?---No, certainly not. My understanding of chance availability, and again the areas that I worked especially in a supervisory role, we had two supervising - covering issues across the state, we had our phone numbers on a list, they were published so if there was an issue they knew that they had these phone numbers to call and, if one person did get a call, the actual numbers were swapped over and if there was extra people brought in their actual phone numbers were published on the list.
PN2018
So how would you characterise what Mr Bishop and others were doing between July '99 and July 2001? I mean, were they call outs, what were they?---They were doing their best endeavours to support the company in what it was trying to achieve and they were getting - - -
PN2019
THE COMMISSIONER: Yes, by what means? By answering call outs?---By, yes, by answering a call out to come to keep the role continuing.
PN2020
And what would Mr Bishop have been paid for that?---Normal overtime rates for the hours that he worked.
**** PETER ALBERT WILLIAM KENDALL XXN MR RIZZO
PN2021
So he performed overtime on call out?---Well, yes, yes, sir.
PN2022
MR RIZZO: But during this time it wasn't obligatory for him to attend?---Certainly not, no.
PN2023
No. So if he wanted to decline the call out he could?---Yes.
PN2024
As would others who were called?---Yes.
PN2025
THE COMMISSIONER: Did you get a minimum call out under chance availability arrangements, four hours or - - -?---That would have been just working overtime rates, Commissioner. Look, I mean - - -
PN2026
You can't answer that?---I can't answer - the issue was just to get the person - - -
PN2027
Right. You were paid overtime though?---Yes, they were actually paid the award conditions that were specified.
PN2028
So that Mr Bishop, for that two year period that Mr Rizzo has just referred to, would have been paid overtime in accordance with the terms of the award?---Yes, yes.
PN2029
MR RIZZO: Thank you, Mr Kendall.
PN2030
THE COMMISSIONER: Re-examination?
PN2031
MR MOYLAN: No, no questions, sir.
**** PETER ALBERT WILLIAM KENDALL XXN MR RIZZO
PN2032
PN2033
THE COMMISSIONER: Yes, 2.15?
PN2034
MR MOYLAN: Pardon?
PN2035
THE COMMISSIONER: 2.15.
PN2036
MR MOYLAN: Sorry?
PN2037
THE COMMISSIONER: 2.15.
PN2038
MR MOYLAN: Yes, thank you, sir.
PN2039
THE COMMISSIONER: Good.
LUNCH ADJOURNMENT [12.41pm]
RESUMED [2.16pm]
PN2040
THE COMMISSIONER: Yes, Mr Moylan.
PN2041
MR MOYLAN: Mr Commissioner, I have asked Mr Whelan to produce the interview notes for you. I understand - - -
PN2042
THE COMMISSIONER: Good. Well you can just send those in.
PN2043
MR MOYLAN: Okay. Right. I would like to call my next witness - - -
PN2044
THE COMMISSIONER: Yes.
PN2045
MR MOYLAN: - - - which is Mr - - -
PN2046
MR RIZZO: Well, Commissioner, is it possible for us to get a copy of that?
PN2047
MR MOYLAN: Yes, anything I send the Commission I would naturally send to you, Mr Rizzo.
PN2048
THE COMMISSIONER: Mr McNeil?
PN2049
PN2050
THE COMMISSIONER: Thank you. Please be seated, Mr McNeil. Mr Moylan?
PN2051
MR MOYLAN: Mr McNeil, will you tell the Commission your current role with United Energy?---I am a Customer Supply Team Leader, actually resource and control.
PN2052
And when did you take up these duties with - in that position?---November 1999.
PN2053
And would you tell the Commission, in brief terms, what that role involves?---It is responsible for the resource coordinators, which is the dispatch group for United Energy issuing work out to field resource, both internal and contract.
PN2054
And is this the group to which Mr Bishop belongs?---Yes.
PN2055
And can you also give the Commission some background as to the history of your work with United Energy and, before that, the SECV?---I started with the SEC in 1981 as an apprentice linesman, completed my four year apprenticeship, from there became a leading hand on a field gang, moved on to a technical services officer which is just an office support role, moved on to a supervisors position from there and after that went to the team leader position - over 20 years.
PN2056
And have you worked availability in the time that you have been with the SECV and United Energy?---Yes, I have.
PN2057
Can you tell the Commission about when you have done so?---I was on availability as a linesman down on the Mornington Peninsula, I was on availability as a supervisor in the Frankston area and again, availability as a team leader.
**** IAN WILLIAM McNEIL XN MR MOYLAN
PN2058
In respect of that, was any of that - what form of availability was that?---There was two forms. One was availability on a rostered arrangement where I was paid an allowance and was required to be available with a vehicle and to respond to a call out.
PN2059
What kind of work were you doing when you did that?---That is two different types of work again, I was - as a linesman I was going out repairing power failures and work out in the field. And the second arrangement of availability I had was, as a supervisor, was on - we were given a vehicle and with having the vehicle there was an expectation that, if you received a phone call, you may want to come out because you had been given that vehicle.
PN2060
And how was that availability characterised?---It is commonly known as chance avail.
PN2061
When were you on that?---1986, I commenced as a supervisor, so probably from '86 to say '90 - early '90s.
PN2062
Okay. If I may I would like to tender - or show you two documents. The first document is a document dated the - headed "Confidential" dated 5 April 2002 and is a statement of Ian William McNeil, Team Leader - Resource Coordination, United Energy Limited. Is that the document that you prepared for the purpose of the hearing of this Commission?---Yes, it is.
PN2063
**** IAN WILLIAM McNEIL XN MR MOYLAN
PN2064
MR MOYLAN: I will hand you now a second document. The second document is headed "Confidential", it is dated 10 April 2002 and is - says statement of Ian McNeil, Team Leader - Resource Coordination, United Energy Limited. Is that your document?---I am just having a quick look at the attachments.
PN2065
It has attachments to it as well, would you also look at them and confirm that, if it is your document, that they are the attachments referred to in your - in this document?---Yes, yes that is right.
PN2066
Do you confirm - are the statements that are made in this document true and correct?---Yes.
PN2067
MR RIZZO: Commissioner, some of this material is new to us. It hasn't been sighted by us before.
PN2068
MR MOYLAN: I believe that that is not true, sir. I believe that this is material that I forwarded to both Mr Rizzo and to yourself quite some time back. I don't have a copy of my electronic outlook form on that but it is my clear recollection, sir, that I forwarded both of those documents to Mr Rizzo and to yourself in the course of preparation for this matter.
PN2069
THE COMMISSIONER: You said some, Mr Rizzo.
PN2070
MR RIZZO: Well, just to go through it, Commissioner, for your benefit. Obviously the first part of this is the same as R9 - no, hang on.
PN2071
THE COMMISSIONER: No, it is - - -
**** IAN WILLIAM McNEIL XN MR MOYLAN
PN2072
MR RIZZO: No.
PN2073
THE COMMISSIONER: It is total - it is a different statement.
PN2074
MR RIZZO: No, it is a different statement actually.
PN2075
MR MOYLAN: That is correct, sir. My recollection, sir, is I sent both statements to yourself and to Mr Rizzo.
PN2076
THE COMMISSIONER: Let me just check.
PN2077
MR RIZZO: I don't recall them to be honest with you, Commissioner. And Mr Bishop doesn't recall them either.
PN2078
THE COMMISSIONER: Go ahead, in any event.
PN2079
MR MOYLAN: In respect of that, sir, I didn't send them to Mr Bishop, I sent them to yourself and to Mr Rizzo.
PN2080
THE COMMISSIONER: You go ahead. I am going to receive the - - -
PN2081
MR MOYLAN: Sorry, sir?
PN2082
THE COMMISSIONER: You go ahead, keep asking the witness about it.
PN2083
MR MOYLAN: Is the - do we have an exhibit number for the document dated the - - -
**** IAN WILLIAM McNEIL XN MR MOYLAN
PN2084
THE COMMISSIONER: I don't think we got to the point where he proved the contents of it yet, did he?
PN2085
MR MOYLAN: I believe I have asked him that question, sir.
PN2086
THE COMMISSIONER: I thought he said he was checking.
PN2087
MR MOYLAN: Okay, sir.
PN2088
PN2089
MR MOYLAN: According to your evidence in exhibit R9, you state in paragraph 6 that:
PN2090
Andrew Bishop did advise me at one of these informal meetings that he did not want the roster modified in regard to hours of coverage for some shift as it affected his lifestyle. There was no mention of a concern regarding availability.
**** IAN WILLIAM McNEIL XN MR MOYLAN
PN2091
Can you elaborate a little more on what your discussion was with Mr Bishop at that time?---Okay. It was when we were looking at making modifications to the rostering arrangement that we had. There was some - we had two separate groups of personnel that we brought together, one was from the ex-report room and one was the ex-site dispatchers. There hadn't appeared to be any rotation, or very much, in regards to cross-skilling etcetera, and there was some areas where we had double up of night shifts, which was unnecessary, amongst other things that needed to be sorted out. So I started to put together a new roster with Ross Forsyth and we were going around catching up with people to talk to them about it and what issues or concerns they may have. Andrew came and saw me and said that he had concerns with it, he didn't particularly want the roster to be modified.
PN2092
Did you at that time - had you at that time distributed a roster to him?---I hadn't personally issued one to Andrew, no.
PN2093
Had one been issued to him at that time?---I think Andrew had been shown one - I personally hadn't handed one to Andrew. It must have been because he brought it in and spoke to me about it, so yes. I am trying to recall specifically - Andrew came in with some paperwork, I cannot remember exactly what the paperwork was, I am guessing it was a copy of the roster. But we sat down and we spoke about Andrew's understanding of night shift and the roster requirements for 24 hour operation, something which I was new to and I wanted to take his advice on as well, but as far as changing the rosters, there was a need for modifications to occur, so we had a conversation about that.
PN2094
THE COMMISSIONER: Could I just ask you what you mean in the first sentence of paragraph 6?---Andrew Bishop did advise me at one of these informal meetings that he did not want the roster modified in regards to hours of coverage for some shifts as it affected his lifestyle. At the time Andrew had been working on the 24 hour roster, which was the day shift and the night shift roster. The new arrangement required afternoon shift, as well as the availability and the 7-1/2 hour days.
**** IAN WILLIAM McNEIL XN MR MOYLAN
PN2095
So it was concerns about the roster itself rather than being available to come in, if required?---Absolutely. This issue was about the roster design and the hours of coverage and the rotation of personnel between the afternoon shifts and the day and night shifts and the like.
PN2096
MR MOYLAN: Okay. You say in paragraph 7:
PN2097
On 3 February 2000 two rosters were presented at the resource coordinators work group meeting for the team to decide on the final version.
PN2098
Now your document, which is an attachment to exhibit R10, contains a document: Work group meeting resource coordinator. Date: 3 February 2000. If I can I take you to that part of exhibit R10?---The attachment document, are you talking about?
PN2099
Yes?---Yes.
PN2100
I note on that that Mr Bishop is not listed as an attendee at that meeting?---That is correct.
PN2101
Well how would he have known about what was discussed at the meeting then?---The items - the two rosters that we designed, in conjunction with Ross, had slight differences in the way the afternoon shift operated.
PN2102
No, that is not my question?---Sorry.
PN2103
My question is how would he have known about what was discussed at that meeting?---The minutes were emailed out to everybody after the meeting.
**** IAN WILLIAM McNEIL XN MR MOYLAN
PN2104
When you say everybody, who were the people to whom they were - - -?---Sorry, the resource coordinators would have received a copy of the work group meeting minutes.
PN2105
Okay?---And it is also on the network drive - the land drive for all.
PN2106
In respect of that, we then go to the next - after the work group minutes there is an email from you dated 23 February?---Yes.
PN2107
Is that the email you are referring to?---No. The first document that would have been provided to all the resource coordinators would be a copy of these work group meeting minutes, which were for the meeting of 3 February. On 3 February we set had a commencement date for the new roster. The email that went out on 23 February was a reminder to everybody that we had completed and agreed to the roster and that the implementation date was taking effect on March 13. So this was notification of a reminder that the new roster commences on March 13.
PN2108
In respect of that, was there a roster attached to that email?---No, no the roster was not attached to the email. However again, the roster was on the network drive.
PN2109
Subsequently you have a work group meeting on 6 April, just part of exhibit R10 if I can take you to that?---Yes.
PN2110
The minutes say that in respect of that meeting, at the bottom of the first page:
PN2111
Andrew then queried the availability on the rosters -
PN2112
and so on, and in the last sentence on that page -
**** IAN WILLIAM McNEIL XN MR MOYLAN
PN2113
Andrew believed availability was not in the JDF for resource coordinators. Ian will investigate and advise.
PN2114
?---Yes.
PN2115
What was the action that you took?---I think I commented on the second document - sorry, the first document, that after the work group meeting I went to Peter Whelan who was the manager, and I spoke to Peter and asked him for a copy of the job description, and I confirmed with Peter his expectation of availability, we checked the document, it confirmed that that was the document that was used when they advertised the positions, because I was not privy to that at that time, and I just took a copy of that over to Andrew and just showed him the document where availability was mentioned and left it at that.
PN2116
Did you have any discussion with him in respect of that document, when you showed it to him?---No. I just said, "Here is the document from the work group meeting and there is the point where it mentions availability" and that was pretty much - that was it.
PN2117
Did he say anything to you in respect of what you had shown him?---I don't recall us having a conversation about it, no. It was fairly - it was very short, very short - here is the document that covers it and that was it.
PN2118
Did you have any - were there any subsequent discussions with you and Andrew on that point?---Over the JDF, are you talking about?
PN2119
Yes?---Not at that time, no. No.
PN2120
Sorry, sir, I am looking for exhibit A5, I just wanted to show that to the witness. They seem to have been mislaid.
**** IAN WILLIAM McNEIL XN MR MOYLAN
PN2121
If you have a look at exhibit A5, Mr McNeil, is that the document that you showed to Mr Bishop? It has some handwriting on it, but that is mine?---Yes, it looks like it is the same document but, unless I had the two sitting side by side, to give you an emphatic definite yes.
PN2122
Well I will take you to clause 6, dot point 6?---Sorry, yes.
PN2123
I take it that was a salient point of your discussion with Mr Bishop?---Yes, yes.
PN2124
Well at least in respect of that item - is that the document that you gave to Mr Bishop?---Yes, I would be comfortable, yes, with that.
PN2125
Okay, thank you. When did you actually commence your rostered availability, Mr McNeil, within the resource control area?---We started availability with the group in early 2000, however that was only for a short time because of resourcing issues, we actually had to drop the availability out of it, I didn't have the numbers within the team to sustain it. And then we reactivated it, I need to go to my notes, July 2001 and it is still operating.
PN2126
And during all of that period of time, at what times was Mr Bishop required, according to your roster, to do rostered availability?---Andrew was actually rostered on and did availability on two instances, the dates, I don't have those in front of me, but I think it was July and August last year. Yes, July and August last year I think it was. I honestly don't know but I know that he has done two.
PN2127
Okay. If I may - I don't want this to - I take - - -
PN2128
THE COMMISSIONER: Sorry, I can't hear you because - - -
**** IAN WILLIAM McNEIL XN MR MOYLAN
PN2129
MR MOYLAN: In respect of this, sir, I don't want to ask a leading question, but I believe this was referred to before as being the without prejudice situation that the parties had agreed to.
PN2130
THE COMMISSIONER: Yes, I understand.
PN2131
MR MOYLAN: Okay. In the period between the first attempt at rostered availability and the second time when rostered availability was introduced, how were staffing needs and call-ins met within - by the resource control area?---For the resource coordinators, when we didn't have the rostered availability, we would - if we had a need for someone to come in to cover either illness or excessive workloads, we would go into the roster, we would see who had worked shifts either that day or the night before, therefore someone who wouldn't be tired, who would not be in bed because they had been working, and we rang - would call one after the other, after the other until we could find somebody that was able to come in.
PN2132
And in respect of that, what was the - who were the people that you would actually call?---It would be the resource coordinators that we would be contacting, again, those that hadn't just worked or who weren't on leave or who weren't on sick leave themselves and you would just work your way through the - however many people were left, you would just ring them until you could find someone who was able to come in.
PN2133
In respect of that, was Mr Bishop one of those people?---Andrew would have been one of them, yes.
PN2134
Well was he in fact called?---There had been a number of times, I don't have them specifically in front of me, where Andrew had been asked if he was able to come in.
PN2135
On what occasions in the course of time that you have been the manager of this area, has Mr Bishop performed - responded to a call in request?---A call in to work additional hours to support the team?
**** IAN WILLIAM McNEIL XN MR MOYLAN
PN2136
Yes?---Never. And I maintain records from January 2000. Anything prior to that I don't have records of. There have been instances where a roster change has occurred that Andrew has been involved in, but that has not been additional hours, that has been change of roster, ie he was on a night shift and didn't - and changed to a day shift or something similar to that.
PN2137
Okay.
PN2138
THE COMMISSIONER: And why would that have been done?---Sorry?
PN2139
Why did that occur?---Usually that is because you are trying to arrange for someone to cover a shift and there can be circumstances where you will ask someone to change their shift because theirs is an easier shift to cover. In other words, yes, it may be easier to get him to do night and then someone else do his day, something like that.
PN2140
I understand, thanks.
PN2141
MR MOYLAN: I have another document I would like to show you. Could you identify for the Commission what this document is and the circumstances of its creation?---This document is a record of all the overtime that I have authorised for payment for resource coordinators from 1 January 2000 up until the end of June.
PN2142
THE COMMISSIONER: This is where they have come back to work after leaving work, is it?---Yes, not in all occasions, a couple of these are where they have remained back at work and claimed overtime.
PN2143
They have continued to work?---Yes. There is a - the majority are where they have been asked to come in and do work. So this is a record of overtime payments that have been made.
**** IAN WILLIAM McNEIL XN MR MOYLAN
PN2144
So is that the number of call ins or the number of hours worked?---Sorry? No, number of hours worked. The right hand column is hours. On that date the person came in, for instance, the top one, on 4/1/2000 - - -
PN2145
That is 4 hours?----The person came in for 4 hours, yes.
PN2146
Eleven.
PN2147
MR MOYLAN: Just briefly, the circumstances of your preparing this document?---Sorry, I don't understand.
PN2148
Well, when did you prepare this document and why?---I prepared the document yesterday but, what it is, is it is simply a collation of my records of overtime payments from January 2000 and it was done to show the number of instances where we have required additional resource or additional hours to be worked by individuals as a team.
PN2149
Well just to make to it - but, sir, I don't want to beat around the bush on this. You requested me to have a document prepared - - -
PN2150
THE COMMISSIONER: Yes.
PN2151
MR MOYLAN: I just wanted to make it - - -
PN2152
THE COMMISSIONER: That is fine.
PN2153
MR MOYLAN: Hopefully get it out of the witness that he prepared it at my request?---Sorry.
**** IAN WILLIAM McNEIL XN MR MOYLAN
PN2154
THE COMMISSIONER: I just want to clarify something. Given that the right hand column is the number of hours of overtime worked?---Yes.
PN2155
It is not the paid hours, it is the actual hours of work performed?---No, these are the additional hours that personnel have claimed as overtime for coming in and working - - -
PN2156
It is for work performed?---For work performed, yes.
PN2157
All right. It is not a number of paid hours?---No, sorry, no, no, no, you will find in certain circumstances there is two with the same date and that will have been two people called in on the same day to work additional hours.
PN2158
I see. So that on the 8th, not the first, the second entry, that is one individual working 12 hours?---Yes.
PN2159
So that each of these entries on the right hand column are a number of hours worked by an individual employee?---Each one is a line representing an employee on a date, yes.
PN2160
Thank you. Then you continue to require additional resources?---Yes.
PN2161
Thank you.
PN2162
MR MOYLAN: In respect of that, for the six months that have gone by in the year 2002, there are only seven entries. Yet for the previous year there were, in the 12 months, clearly a lot more than 14 entries. Can you explain a difference between those two years?---Okay. There is probably two key reasons for that. The first one is that we were short on resource for a period of time and our personnel had been covering, working what we thought were excessive hours,
**** IAN WILLIAM McNEIL XN MR MOYLAN
and we paid them overtime for doing that. That resourcing had improved over time therefore the amount of call ins to cover reduced, in other words we may have had four personnel in the room at one stage and if one person was off sick we may be able to operate with three, in which case we wouldn't call anyone in, but earlier on, we would have had less personnel therefore we wouldn't have had that flexibility, we needed to cover. And the second point is that we have made an arrangement with our MPT personnel in the middle of last year to work sick leave coverage in a different way whereby we weren't paying overtime but we were paying - using what is called a special day, which is a day that a resource coordinator owes to United Energy on a five week roster arrangement. We were therefore just moving those days around within the roster so they weren't working extra hours in many cases, they were simply changing one of their days, a flexible day that each person had. So that brought down the overtime requirement, it is a combination of two.
PN2163
I have no further questions, Mr Commissioner.
PN2164
PN2165
MR RIZZO: Mr McNeil, you say in paragraph 1 of your statement that you were appointed in this current position in October '99?---Yes.
PN2166
Is that correct? So I assume you had no role in the interviews for the resource coordinators in June/July 1999?---Yes, that is correct.
PN2167
So you had no role in that at all?---None whatsoever.
PN2168
In paragraph 6, Mr McNeil, you say:
PN2169
Andrew Bishop did advise me at one of these informal meetings that he did not want the roster to be modified -
**** IAN WILLIAM McNEIL XXN MR RIZZO
PN2170
etcetera. I can't get a time line for this informal meeting about - what sort of time - whereabouts is the time line for this meeting?---I struggle to give you a dead accurate time, but it was during the period that we were working on building the new rostering arrangement. So I said in point 4 there:
PN2171
During December and January we worked on creating the new roster.
PN2172
Yes?---So it would have been somewhere in that time, between the beginning of December and the end of January. Thereabouts - I can't give you the precise date, I am not sure.
PN2173
Okay. Now you say the discussion was about shifts and not about availability per se?---The issue that Andrew had at the time was shifts.
PN2174
Yes, okay. But in paragraph 10, you do refer to the resource coordinator's work group meeting on 6 April 2000?---Yes.
PN2175
At which you were present?---Sorry?
PN2176
You were present?---6th - yes.
PN2177
Yes?---Yes.
PN2178
And you do list that Andrew had a whole bunch of concerns about the proposed availability - rostered availability proposal?---Yes.
PN2179
And in fact on top of the ones that you add here, there is probably a couple more that are referred to in the minutes of that meeting, which now form part of your document R10?---I am getting confused now. Sorry, that is the second one, is it?
**** IAN WILLIAM McNEIL XXN MR RIZZO
PN2180
Yes, it is your second statement, R10?---Yes, okay.
PN2181
And I refer you to the work group meeting minutes where at the bottom, as you know, it talks about availability and it goes over the page?---Sorry, I am looking at the wrong one here. You are talking about the 6th of - - -
PN2182
April?---April - sorry, I was looking at the wrong one.
PN2183
Yes?---Okay.
PN2184
And as you see that there is a heading "Availability"?---Yes.
PN2185
And there is a whole bunch of - well, discussion there and Andrew queries a number of things and over the page he queries some more?---Yes.
PN2186
Some of which you state in paragraph 10 in your statement of 5 April?---Yes.
PN2187
Is it fair to say, with the combination of those two documents, that Andrew was very much opposed to rostered availability?---The first questions that were asked on the availability list for the work group meeting, Andrew was more interested in what circumstances we were going to using availability for.
PN2188
Yes?---As to the criteria.
PN2189
Yes?---It was after that that Andrew then said that the roster does not suit his lifestyle and he is not happy about the roster changes.
PN2190
Yes?---And that he believed he hadn't been consulted.
**** IAN WILLIAM McNEIL XXN MR RIZZO
PN2191
Yes. I think it is safe to assume from there that Andrew was opposed to being placed on rostered availability?---I think you could assume that.
PN2192
Because up until that point he had been on, what we have talked about and you have characterised as, chance availability?---Chance availability, yes.
PN2193
And is it true to say that Andrew had been on chance availability to this point?---Andrew had been on the same as everyone else, as in he received a phone call and, if you were available, you would come in.
PN2194
Yes. Because you are familiar with the difference between rostered and chance availability, one being obviously a roster and an allowance and the rest of it?---Yes.
PN2195
And chance being something which is somewhat optional and discretionary?---Yes.
PN2196
And when you say further in that paragraph, Mr McNeil, paragraph 10 I am talking about, the end of paragraph 10 you say:
PN2197
He believed he had not been consulted. I reminded Andrew that both Ross Forsyth and I had consulted him.
PN2198
?---Yes.
PN2199
When did that occur?---The consultation with Andrew was when he came and spoke to me about the - his concerns with the new rostering arrangement, which was the comments earlier on. And I had spoken with Ross Forsyth who told me that he had also spoken to Andrew about the rostering arrangement.
**** IAN WILLIAM McNEIL XXN MR RIZZO
PN2200
Sorry - you are referring back to paragraph 6?---Yes.
PN2201
Yes. So are you saying that at one stage he didn't raise any objections but then he did raise objection on 6 April?---No, I said that he raised objections to the roster - to the rostering arrangements.
PN2202
Yes?---And then on 6 April he said that the roster didn't suit him, I think that is what it says, yes:
PN2203
Andrew Bishop stated the roster does not suit his lifestyle and he is not happy about the roster changes and that he hadn't been consulted.
PN2204
Yes?---So at that point in time it was still based around the roster.
PN2205
Okay?---Andrew definitely asked questions about the availability, no doubt about that, I agree.
PN2206
Yes, I think we accept that. Now I am a bit confused about your time lines again here, Mr McNeil, and I think you have referred to it a bit earlier. You say in paragraph 9 that the roster commenced on 13 March 2000?---Yes.
PN2207
And then you say in paragraph 12 that:
PN2208
Due to maternity leave, sick leave etcetera, I made a decision to remove the 7.5 hour shift from the roster until sufficient resource is once again available.
**** IAN WILLIAM McNEIL XXN MR RIZZO
PN2209
What time period is that?---It was shortly after we had implemented the roster, the shift onto the roster. The roster didn't stop, the roster continued. What happened was we were down on resource and so we had to drop a person off the roster. What we did was we dropped the, what we call the small D shift, which was the shift that was also used for availability, so at the same time we dropped the availability. So it only lasted three months.
PN2210
Yes. Well is it true to say that between July 1999 and July 2001, when the actual roster did come into place, that Andrew, as well as a number of other people, was still on chance availability?---July '99, let me get my bearings right here.
PN2211
Well July '99 when the resource coordinators were appointed?---Yes.
PN2212
And July 2001 when the new roster came into effect, that two year period, was Andrew Bishop on chance availability during that time?---At any time during that time?
PN2213
Well during that time?---Well it was the period when the roster was in place from March for the three months but, outside of that, it was on the call up arrangement.
PN2214
Yes. So it is fair to say that he was on chance availability between that July '99 to that July '01 period?---Yes.
PN2215
Yes. I think we have already established at paragraph 7, Mr McNeil, that at the meeting on February 3, 2000, which is outlined in your subsequent supplementary statement, that Andrew Bishop wasn't at that meeting?---That is right.
PN2216
He wasn't an attendee?---Yes.
**** IAN WILLIAM McNEIL XXN MR RIZZO
PN2217
And then on that e-mail on 23 February, which is also in your R10 additional statement - - -?---Yes.
PN2218
- - - Mr Moylan asked you whether that roster that is there, on the next page, was attached to that e-mail and you said it was not?---No, that is correct.
PN2219
And you said - I missed that part, you said it was on the hard drive, or?---It is on the network drive. It is the roster that the resource coordinators look at to see what day they are due to come in next.
PN2220
Right. And Mr Bishop would have had access to that?---Yes.
PN2221
All right. And just taking you a bit back in history, Mr McNeil, in those years you have worked as a liney, and then a tech officer and then a supervisor, you definitely did work rostered availability, did you not?---Yes.
PN2222
And is it also true to say that you also worked, at times, chance availability?---Yes.
PN2223
So you are familiar with the concept?---Yes.
PN2224
And would you see it had been a custom and practice in the SEC and United Energy for many years that the two types of - the two types of availability did exist?---Yes.
PN2225
Thank you. No more questions.
PN2226
THE COMMISSIONER: Could I just ask you one question before Mr Moylan re-examines. In R10 - - -?---That is the second one, is it not?
**** IAN WILLIAM McNEIL XXN MR RIZZO
PN2227
Yes, the second last page under the heading,"Human resources." The third to last dot point there is a suggestion there was an enquiry to be made in relation to the availability of taxi vouchers?---Yes.
PN2228
What became of that?---The taxi vouchers are maintained within our group and are available if required.
PN2229
If required, for what purpose?---If someone has issues with - they may be overly tired; unsafe to drive. We also have them for unusual circumstances where we may need to help someone out whose vehicle may be broken down or they are struggling to get in or they are struggling - - -
PN2230
For staff transportation - - -?---Yes, it is for assistance.
PN2231
- - - under circumstances at the discretion of management?---Yes, that is right.
PN2232
PN2233
MR MOYLAN: In respect of the three month period in the year 2000 when you introduced your first attempt at having rostered availability within the resource control area was Mr Bishop on availability then?---Not during that three month period, no. The rostering arrangement had people on the day shift/night shift. I think Andrew was on the day shift/night shift which was not - the roster rotates and when you move down into the afternoon shift area that is the time when you go on availability. So when you are actually in the top half of the roster you weren't part of availability. It wasn't your turn to do availability. It goes through a number of cycles before it becomes your turn. Those first three months Andrew was not on that.
**** IAN WILLIAM McNEIL RXN MR MOYLAN
PN2234
Was he on chance availability then?---Well, chance availability would be the fall back position if you needed an additional person. So, in other words, if you called in your availability person and you still needed more support and more assistance then you would look at the list of personnel. I guess you would call that chance. Trying to get someone extra to help out as well. So that opportunity would be there still, yes, and still is now.
PN2235
I have no other questions, Mr Commissioner.
PN2236
THE COMMISSIONER: Good. Thank you for your evidence, Mr McNeil. You are released from your oath and you are free to come and go as you please?---What will I do with these?
PN2237
PN2238
THE COMMISSIONER: All right, that completes the evidence in the matter, does it, with the exception of the document which was used for the purpose of the interview?
PN2239
MR MOYLAN: Yes.
PN2240
THE COMMISSIONER: Well, that will be filed. And how do the parties propose to go about making the submissions? I think it is probably most convenient to do it in writing.
PN2241
MR RIZZO: Can I suggest to you, Commissioner, that my submissions will be fairly contained.
PN2242
THE COMMISSIONER: Well, that doesn't change the - - -
PN2243
MR RIZZO: I mean, I - - -
PN2244
THE COMMISSIONER: - - - suitability of them being delivered in writing, whether they be brief or lengthy.
PN2245
MR RIZZO: No, no, I am trying to suggest - - -
PN2246
THE COMMISSIONER: It might - - -
PN2247
MR RIZZO: - - - they can be contained and I can do them orally in a fairly succinct period of time and are prepared to do them this afternoon.
PN2248
THE COMMISSIONER: How long would you take?
PN2249
MR MOYLAN: I would have to indicate to you, sir, that mine will be a very long, I believe, and detailed submission. It would take - I couldn't conceive, sir, that if I started now, I would be anywhere near finished in respect of that. As I have already indicated to you, I am going to be making submissions that will be extremely detailed.
PN2250
THE COMMISSIONER: Yes, fine, I get the picture. I think we will do it in writing, Mr Rizzo. If we could finish today I was tempted to hear the submissions presented today - concluded today, but I think there is something - there is quite a bit of material. It is probably desirable that they be in writing. It is a question of when.
PN2251
MR RIZZO: Sorry, Commissioner, a question of when?
PN2252
THE COMMISSIONER: Well, if I am not mistaken, you could probably write your's this afternoon. Isn't that what the - the import of what you said?
PN2253
MR RIZZO: No, I was going to suggest to you, I can do them orally - - -
PN2254
THE COMMISSIONER: And file them tomorrow some time.
PN2255
MR RIZZO: - - - this afternoon, yes. It takes me a lot longer to write them.
PN2256
THE COMMISSIONER: I was not quarrelling with that proposition. I was basing my assumption on the brevity of them. But I am in your hands. As long as I get a reasonable time to make this decision before mid August.
PN2257
MR RIZZO: If you are on a timeline for the submission - for the - - -
PN2258
THE COMMISSIONER: Yes. You go first. You are the applicant. You say what it is you want and why it should be granted having regard to the evidence material that has been presented to the Commission. That is the first step. You file those with me and serve them on Mr Moylan. He has time to digest those, to file his own and then you get a right of reply. So, we start with your convenience.
PN2259
MR RIZZO: I - can I nominate, Commissioner, Monday 29 July?
PN2260
THE COMMISSIONER: Yes, that is not unreasonable. Mr Moylan, you have the same amount of time which would take you through to the 18th - the close of business on the Tuesday. Isn't that right, the following - - -
PN2261
MR MOYLAN: Sorry, sir? Close of business on - - -
PN2262
THE COMMISSIONER: That would be the close of business on Tuesday 5 August and Mr Rizzo - - -
PN2263
MR MOYLAN: That will be fine, sir.
PN2264
THE COMMISSIONER: Yes, you will have to file your reply by the 9th.
PN2265
MR MOYLAN: Provided of course I get Mr Rizzo's document on or before that date.
PN2266
THE COMMISSIONER: He is going to file his no later than the 29th. And you will have to the 5th - I am sorry, to the 6th and Mr Rizzo will have to file on the 9th, his reply. So it is 29, 5 and 9. Is that clear? 25 July for the ASU. 5 August for the company. 9 August for the ASU. Is that clear?
PN2267
MR RIZZO: Sorry, Commissioner, let me just re-confirm that. My submission, that will be Monday, 29 July?
PN2268
THE COMMISSIONER: Correct.
PN2269
MR RIZZO: Yes.
PN2270
THE COMMISSIONER: And then you will file them with the Commission and serve them on the company at the same time.
PN2271
MR RIZZO: Yes.
PN2272
THE COMMISSIONER: By close of business that day. Mr Moylan will then have until the close of business on 6 August to file the company's submissions. And you will have until 9 August to reply to those.
PN2273
MR RIZZO: Yes, that is fine, Commissioner.
PN2274
THE COMMISSIONER: Good. Well, I will reserve my decision.
PN2275
MR MOYLAN: With respect, sir, in terms of the form of filing the documents, would the use of e-mail be accepted?
PN2276
THE COMMISSIONER: Yes, certainly.
PN2277
MR MOYLAN: Thank you.
ADJOURNED INDEFINITELY [3.13pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
ANDREW CRAIG BISHOP, ON FORMER OATH PN1466
RE-EXAMINATION BY MR RIZZO PN1466
WITNESS WITHDREW PN1484
PETER ANTHONY WHELAN, SWORN PN1489
EXAMINATION-IN-CHIEF BY MR MOYLAN PN1489
EXHIBIT #R6 DOCUMENT HEADED CONFIDENTIAL DATED 3 APRIL 2002 PN1501
EXHIBIT #R7 DOCUMENT HEADED CONFIDENTIAL DATED 23 APRIL 2002 PN1503
CROSS-EXAMINATION BY MR RIZZO PN1668
EXHIBIT #A9 MINUTES OF MEETING PN1711
RE-EXAMINATION BY MR MOYLAN PN1734
WITNESS WITHDREW PN1757
PETER ALBERT WILLIAM KENDALL, SWORN PN1759
EXAMINATION-IN-CHIEF BY MR MOYLAN PN1759
CROSS-EXAMINATION BY MR RIZZO PN1949
WITNESS WITHDREW PN2033
IAN WILLIAM McNEIL, SWORN PN2050
EXAMINATION-IN-CHIEF BY MR MOYLAN PN2050
EXHIBIT #R9 STATEMENT OF IAN WILLIAM McNEIL 05/04/2002 PN2064
EXHIBIT #R10 STATEMENT OF IAN WILLIAM McNEIL 10/04/2002 PN2089
CROSS-EXAMINATION BY MR RIZZO PN2165
RE-EXAMINATION BY MR MOYLAN PN2233
WITNESS WITHDREW PN2238
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