C0090/899, Transcript of Proceedings [2002] AIRCTrans 4335 (6 November 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C No 00908 of 1999
C2002/2109

LHMU - ACM DETENTION CENTRES OFFICERS
(INTERIM) AWARD 1997

Review under section 52, item 51,
schedule 5, Transitional WROLA Act
1996 re award simplification

Application under section 113 of the Act
to vary the above award re award simplification

SYDNEY

2.32 PM, THURSDAY, 17 OCTOBER 2002

Continued from 10.9.02

PN1560

THE SENIOR DEPUTY PRESIDENT: There are no changes in appearance, I note. This morning we inspected the Villawood Detention Centre. I don't know if anybody wants to put anything on the record in relation to that inspection. If not, we will proceed to the hearing of further evidence and again there are witnesses from each side, I understand. Is there an agreement amongst you as to who calls the next witness?

PN1561

MS SCHOFIELD: Yes, we were proposing to call Mr Barry this afternoon, your Honour. We weren't proposing to put anything on the record at this point in time about the Villawood inspections and we note that some of the matters that were observed there may be somewhat sensitive. So I think the best thing - what we had intended to do was perhaps refer to some issues in our closing submissions where they reaffirm points that we intended to make.

PN1562

MR DOUGLAS: I have no comment on the inspections, your Honour. It may be this is an appropriate time. My friend and I had a discussion recently about the next hearing date and I think that has been set for 13 November.

PN1563

THE SENIOR DEPUTY PRESIDENT: Yes, is that right?

PN1564

MR DOUGLAS: 12th? 12 November, that is a better day. Your Honour, there is a need - - -

PN1565

THE SENIOR DEPUTY PRESIDENT: Do you want this on the record, Mr Douglas?

PN1566

MR DOUGLAS: No, I think not, your Honour.

PN1567

THE SENIOR DEPUTY PRESIDENT: We will go off the record for the moment.

OFF THE RECORD

PN1568

THE SENIOR DEPUTY PRESIDENT: Just before you start I would like to indicate that we have set some additional dates for further inspections, largely at my suggestion because I felt that I would be assisted by seeing at least one other detention facility as well as a correction facility. So we will visit Baxter in Port Augusta on 28 October 2002 as a correctional facility. We will visit - sorry, that is a detention facility. We will visit the Junee correctional facility on 7 November. There will be a further hearing of this matter as previously scheduled on 12 November at which time I believe the union will call a further witness and I will hear submissions on that day as well and if necessary I will set aside 13 November hopefully to complete the case, the hearing of the matter. Yes, Ms Schofield?

PN1569

MS SCHOFIELD: Thank you, your Honour, the union would like to call our witness, Wayne Barry.

<WAYNE BARRY, SWORN [2.56pm]

<EXAMINATION-IN-CHIEF BY MS SCHOFIELD

PN1570

THE SENIOR DEPUTY PRESIDENT: Will you help me to find Mr Barry's witness-statement? In what part of the documentation should I find it?

PN1571

MS SCHOFIELD: It was forwarded to the Commission as per the directions along with the union's submission in relation to the company's evidence of Mr Gayton. There were two separate documents that were filed.

PN1572

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, I have it, thank you.

PN1573

MS SCHOFIELD: There were a couple of attachments that were served with that, your Honour, one was titled: Self Start Kit, and: Bridging Course. They are fairly thick.

PN1574

THE SENIOR DEPUTY PRESIDENT: No, I don't think so. The attachments don't seem to have arrived. I have got a hard copy and a facsimile copy but neither of them has attachments.

PN1575

MR DOUGLAS: We didn't get them until today, your Honour, that is why you haven't got it yet.

PN1576

MS SCHOFIELD: It is not critical, your Honour. We had just really - we would just seek to refer to them and - - -

PN1577

THE SENIOR DEPUTY PRESIDENT: Well, I don't have them is all I can tell you.

PN1578

MS SCHOFIELD: Okay. We might just deal with the statement. Mr Douglas has provided a copy, his copy, of the attachment so I would just seek to make those available to the Commission.

**** WAYNE BARRY XN MS SCHOFIELD

PN1579

If I could just firstly ask Mr Barry, Mr Barry, you have got a copy of your statement with you?---Yes, I do, yes.

PN1580

Is that a true statement?---Yes, it is.

PN1581

I would like to tender a signed copy of that statement, your Honour.

PN1582

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1583

MS SCHOFIELD: I will also hand up the attachments.

EXHIBIT #LHMU25 WITNESS STATEMENT OF W. BARRY SIGNED AND DATED 17/10/2002 TOGETHER WITH ATTACHMENTS

PN1584

MS SCHOFIELD: Mr Barry, how long have you worked with ACM?---I commenced my pre-service training on 4 January 2000.

PN1585

Where are you employed?---Currently at Arthur Gorrie as a Correctional Officer.

PN1586

Your pre-service training, what sort of training was that?---It went for 240 hours approximately and we covered legislation, use of force, use of firearms, search powers, response codes, using the various equipment which is in the Centre, certain officer safety principles, use of fire-fighting equipment, basically just familiarised ourself with the various log books and what else is required in the Centre.

**** WAYNE BARRY XN MS SCHOFIELD

PN1587

Did that include any training about detention centres or Immigration Detention Centres?---Yes. There was a mention that we were able to do some work in detention centres but it was just basically an offer that at some stage if you wanted to you could go to - I think it was Curtin was the only place that was available - Curtin and Woomera were the only places available to us at that point in time, yes.

PN1588

The training was corrections training, is that right?---Yes, the advertisement in the paper was for Correctional Officer.

PN1589

At point 6 of your statement you say that your training led to a certificate level 3 in correctional practice?---The training that we did covered certain areas of the certificate 3 but we were required using our experience gained in the job to complete that certificate 3.

PN1590

Have you completed that certificate?---Yes, I have, yes.

PN1591

You say that you were sent on a 6-week deployment to Curtin after you had been employed for 3 months with ACM. Did you receive any additional training before you went to Curtin?---No, I finished my training as a Correctional Officer on 28 January and was invited to go to Curtin on 10 March that year.

PN1592

You were employed under Australian Workplace Agreement, is that correct?---Yes.

PN1593

What is the difference in wages between your work as a Fly-in Detention Officer and your work as a Correctional Officer?---We do a lot more hours in the detention centres but at that stage it balanced out to an average of around about $19 an hour, give or take a few cents, I can't remember the exact figure.

**** WAYNE BARRY XN MS SCHOFIELD

PN1594

The $19 an hour is in relation to?---Well, both.

PN1595

Both?---Both positions. It was - I think it was just under $19 an hour for the correctional facility and I think it roughly worked out to just over $19 an hour at detention centres.

PN1596

You say that on about your sixth deployment you received a self-start kit from the company?---That's right, yes.

PN1597

Is that kit appended to your statement?---Yes, it is.

PN1598

THE SENIOR DEPUTY PRESIDENT: Is that the document that is called: Detention Officer's Bridging Course, is it?---No, it's got "ACM Self Start on it".

PN1599

MS SCHOFIELD: There's actually two documents there, your Honour. I think they are both about equal thickness.

PN1600

So you received both the bridging course and the self-start kit?---Yes.

PN1601

What was the purpose of those documents?---I think the self-start gives you a bit of an idea about the Christmas Island Detention Centre staff because it was just the new centre that's been opened up and the bridging course, from what I could see, was more or less a rehearsal of a lot of the claims that we do on an annual basis that's called refresher claim. It sort of covers similar areas in regards to ..... and various other things.

PN1602

So these kits reflected training in detentions. Is that correct?---Well, I can't answer that because I haven't been trained as a detention officer but from my training as a correctional officer, a lot of it was repetitive, yes.

**** WAYNE BARRY XN MS SCHOFIELD

PN1603

You say in your statement at paragraphs 10 and 11 that there's a number of similarities in the role of a detention officer to that of a unit officer in correction. Could you just tell us how those roles are similar?---Well, maintaining of both the centres is similar. I think if you were to mirror a day in a detention centre, in my experience, and a day at Arthur Gorrie, it would be almost the same in regards to maintaining the peace, doing head counts, allowing for the detainees and the inmates to have access to their activities and getting them to abide by the rules of the various centres, wherever they may be, and also with maintaining their safety as well as our own. I think that they would - they are very similar, yes.

PN1604

Are there any differences between maintaining security in a detention environment versus a corrections environment?---From my experience I think mainly working at Curtin the only real difference is that they can't have visitors at Curtin. I think it's probably a little bit harder, or it was, at Curtin because you didn't have the same level of security as what we do in the correctional centre. There's a lot of segregation and separation in the correctional centre. There's a larger number of detainees in a larger area who have a lot more freedom and therefore it makes it a lot more difficult to sort of maintain control in certain situations and incidents.

PN1605

You say in point 13 of your statement that there are cultural differences in terms of - in a detention centre that make it quite difficult to identify people who are potentially at risk of self-harming. Do cultural factors in themselves contribute to any differences in the work?---They do from the point of view of being able to search the inmates. For starters there's women and children there so it makes it very difficult for me as a male officer in regards to them self-harming. It's a grey area that you've got to - that they have the freedom over. So if you have concerns about someone who might possibly - who might be self-harmed, you've got to keep an eye on them over a greater area. You can't sort of - until they show good indicators that they may self-harm you've got to basically follow them around all over the centre to make sure they don't hurt themselves, whereas in a correctional centre it's a lot more confined. It's easier to keep an eye on them.

**** WAYNE BARRY XN MS SCHOFIELD

PN1606

You say there's women and children there. What are you referring to?---At the detention centre.

PN1607

The detention centre, and there are no women and children in the correction centre?---No, well not in the one that I worked in there's not.

PN1608

Does that make a difference?---It makes it - like I said, it makes it hard for me as a male officer for searching purposes.

PN1609

You say at point 15 of your statement that you've seen more self-harm in immigration detention centres and that the incidence seems to be increasing. What do you base this statement on?---I think from my experience the amount of self-harm in a detention centre is higher than correctionals because they have more facilities, like what they're allowed to have of their own personal property differs to what an inmate may be able to have. Therefore they've got more tools to actually self-harm with. They've got more freedom, yes.

PN1610

Why do you say that it seems to be increasing?---I think as the detainee spends a longer period in detention they seem to lose hope or lose faith and resort to these sorts of behaviours to attract attention or - - -

PN1611

You say at point 17 communication is important. Why do you say that?---Well, if you're not communicating with them it's hard to get a feel for what's going on within the centre. It's a good means of being forewarned as to possible incidences that may occur.

PN1612

Is that an issue in a correction facility as well?---It is an issue but you sort of - the inmates are more confined so it's easy to see if there's a behavioural change, if they're withdrawing, if they're not eating, if they start behaving differently but you know, within a detention centre there's so much freedom. Unless you were to follow them round every day it's at times hard to pick up on these factors.

**** WAYNE BARRY XN MS SCHOFIELD

PN1613

What are the differences in interacting with detainees as opposed to inmates?---The language barrier is a bit of a problem to start with.

PN1614

In relation to detainees?---With detainees. The majority of them in my experience, are Middle East. Although some of them do speak English there are a lot that come across that don't speak very well. So that in itself makes it difficult with communications.

PN1615

How does that compare with inmates?---Well, all the inmates speak English, or 99.9 per cent of them. So that makes it easy for a start.

PN1616

You say - and I think you mentioned this earlier - that the lack of segregation in detention centres makes it a lot more difficult to control an incident. What do you base that statement on?---Well, for example, if we have an incidence in a gaol, a correctional facility, at any one time you're only really likely to have maybe a maximum of 50 inmates that could possibly interfere with you controlling that situation but in a detention centre such as Curtin you could have, depending on the amount of numbers in the centre, up to 1000 who could possibly interfere with you controlling or containing the situation in an incidence.

PN1617

You mentioned at paragraph 20 that there had been two riots at Curtin and you have not had any experience with riots at the Arthur Gorrie Centre. What happened during those riots at Curtin?---There's been a few more than two occurred but that's the only two that I've actually had anything to do with. One in particular was a group of Afghan detainees had been given a refusal by DIMA. Therefore they decided to take it upon themselves to start burning down our tents that we worked from, pushing fences over and burning other buildings that were up there. The other incidence was when we had about 150 actually pushed the fence over and tried to escape.

PN1618

How did you and the other staff respond to that? How did you know how to respond?---Well, it all comes down to our training.

**** WAYNE BARRY XN MS SCHOFIELD

PN1619

When you say your training that would be your corrections training, is that correct?---Yes.

PN1620

Do you do escort duties in a correction establishment?---Yes.

PN1621

At Arthur Gorrie?---Yes.

PN1622

How often would you do escort duties?---More often we escort civilians within the centre. Occasionally we will assist - I have personally assisted another gaol because of - for whatever reason on a funeral escort of an inmate from our centre. If an inmate requires hospitalisation after normal day shift hours we are required to go with the ambulance as an armed officer and go in - with the ambulance and take them to the hospital.

PN1623

Did you - have you ever performed escort duties while you have been on placement in an immigration detention centre?---Yes.

PN1624

Similar type of things?---Yes. More for Court - like Refugee Review Tribunal and to the hospital as well, too. Yes.

PN1625

In your experience is there a greater number of escorts within one centre?---From my experience there is a lot more external escorts done by the officers at the centre - - -

PN1626

At which centre - - -?---In the detention centres than what there is in a correctional facility.

PN1627

Just to confirm the matter that is attached to your statement, the self start kit and the Detention Officers bridging course that material was provided to you by ACM, is that correct?---That is correct.

**** WAYNE BARRY XN MS SCHOFIELD

PN1628

What was the purpose of that material? Why did they give it to you?---Well, I believe the self start was an insight into, like I say, the Christmas Island itself because it was a new centre and I think it was just to refresh. The bridging course, like I said, a lot of it is just to refresh on some of the training we have done. There was some aspects in there that gave us a little bit of information on the DIMA process and also the culture of the type of people that are actually held in the detention centre.

PN1629

You are expected to be familiar with this material, is that correct?---Yes, we are.

PN1630

Just in your experience based on this material and your experience of working is there much difference in the sort of skills that you use in a corrections facility as opposed to a detentions facility?---I don't think so, no. I have seen a lot of officers come from correctional facility and work at the detention facilities and it worked very well.

PN1631

Thank you?---Thank you.

<CROSS-EXAMINATION BY MR DOUGLAS [3.18pm]

PN1632

MR DOUGLAS: Mr Barry, you are classified as a security officer?---I am - the actual classification changed a little while ago to a corrective services officer.

PN1633

Is that the same classification as a security officer?---In what regards?

PN1634

Well, was it simply a name change?---No, prior to that we were classified as a custodial correctional officer.

PN1635

Well, I am instructed that at Arthur Gorrie there are two classifications that are relevant?---Mm.

**** WAYNE BARRY XXN MR DOUGLAS

PN1636

The first being security officer and the second being a unit officer?---That is correct.

PN1637

Is that correct?---That is correct.

PN1638

You are classified as a security officer?---I would say no because I do both duties. I work in units of - I actually worked in every post in that entire gaol except for master control. I worked in every unit in that entire gaol and I have worked in every other post including night-shift.

PN1639

So are you saying that you perform work as a - at Arthur Gorrie as a security officer and also as a unit officer?---Yes, and visits, medical.

PN1640

Yes. When you work as a unit officer are you on higher duties when you perform that work?---We are paid at a slightly higher rate, yes.

PN1641

Yes. So there is - there are two classifications that you work in?---By ACM there is, yes.

PN1642

How much of your time in the last say six months aside from working in detention centres would you have worked as a unit officer at Arthur Gorrie?---In the last six months - - -

PN1643

Yes?---Possibly - - -

PN1644

How many - - -?---Possibly 35-40 per cent of the time. Possibly.

PN1645

Before you came here today where you working as a security officer or as a unit officer?---Well, the classification of a security officer, like I said, is by ACM's means.

**** WAYNE BARRY XXN MR DOUGLAS

PN1646

Yes?---The roles that we perform as a classified security officer at ACM varies. We can work in visits. We can work in medical. We can do night-shift. We can work in the reception store and as far as ACM is concerned they have classified that as a security officer.

PN1647

Yes. That is in the current agreement? You are aware that there is a current agreement in place - - -?---I believe there is.

PN1648

- - - at Arthur Gorrie?---Yes.

PN1649

Within the Queensland system?---Yes.

PN1650

That has two classifications that are relevant to your employment, security officer and - - -?---That is correct.

PN1651

- - - unit officer?---That is correct.

PN1652

When you work as a unit officer you get a higher rate of pay - - -?---That is correct.

PN1653

- - - for the time you spend as a unit officer?---That is correct.

PN1654

Now, when you told my friend a while ago that you don't see much difference between detention officers work and the work you perform at Arthur Gorrie which work at Arthur Gorrie were you referring to? Security officer's work or unit officer's work?---I was generalising because I have had a reasonable amount of experience in both - in every aspect of the gaol.

**** WAYNE BARRY XXN MR DOUGLAS

PN1655

So are you saying that the mix of work that you do as a security officer and as a unit officer is pretty much the same as the work that you perform as a detention officer?---Well, I would rather not refer to my job at Arthur Gorrie as a security officer given the variety tasks that we perform. As I said before the classification of security officer was done by ACM not by the type of work that we do.

PN1656

Well, what are the differences between the work you do as a security officer and the work you do as a unit officer?---A security officer works in a variety of posts. A unit officer will work in the units where the inmates are actually accommodated. A security officer may work in the reception store where the inmates are receipted from police watch houses. They are then identified by means of photograph them. Their property is checked. It is detailed. They are put on the corrective services CIS computer so all their details get put on computer. They are then transferred through to medical. The medical officers assist the nurses and the doctors and the psychs in getting the inmates up from their accommodation. You have got also visits officers who process the visitors when they come in with all their various paperwork and identification. We search the visitors when they come in - - -

PN1657

That is as a security officer?---That is as a security officer. We maintain the security in the visits area with the visitors and the inmates.

PN1658

Is there any different training you do to become a security officer - - -?---No.

PN1659

- - - or unit officer?---No. I have only received one type of training. That was my pre-service training. That is the same training that everyone gets.

PN1660

Thank you. You have been employed since when? January 2000? As a casual?---Yes.

PN1661

Have you ever made a request that you be employed full-time?---No.

**** WAYNE BARRY XXN MR DOUGLAS

PN1662

Why is that?---Because towards the end of 2000 there was a decision made by ACM that Arthur Gorrie staff would only allow casuals to work in detention centres.

PN1663

So you wanted to have the opportunity of going to detention centres?---That is correct.

PN1664

Why did - why were you attracted to working in detention centres?---Because of the amount of work that we did we attracted more money.

PN1665

So you went - when you went to work in a detention centre, say at Curtin or Christmas Island you received a higher rate of pay?---We worked 144 hours a fortnight and we received the appropriate pay for that.

PN1666

Yes, your gross income was significantly higher?---Yes.

PN1667

Yes?---Due to the amount of work that we did.

PN1668

The unit officer, when you work as a unit officer you have a responsibility for the supervision of the work of security officers, correct?---Sorry, can you repeat that?

PN1669

When you work as a unit officer you have the responsibility to supervise the work of some security officers?---Not that I'm aware of, no. You can supervise inmates but we don't supervise other officers.

PN1670

You don't supervise other officers?---No.

PN1671

Who supervises unit officers?---That's - who supervises a unit officer?

**** WAYNE BARRY XXN MR DOUGLAS

PN1672

Yes?---The only person above a unit officer, the next step up, is a correctional manager.

PN1673

So correctional managers supervise unit officers and security officers?---That's correct.

PN1674

You say that unit officers are not involved in supervision at all?---Not of other staff.

PN1675

Why do you get a higher rate of pay when you work as a unit officer do you think?---The explanation was given to us that the introduction of the 2000 EBA that that was based on case management, that the unit officers did case management on the inmates.

PN1676

So the responsibility is higher than the work of a security officer?---I would say so.

PN1677

So does the case management role involve a greater degree of skill?---If that was the case I would have received different training to be able to work in a unit and I haven't.

PN1678

How long did it take from the time you were first employed in January 2000 before you worked higher duties as a unit officer?---I couldn't tell you exactly but I know within the first almost six weeks that I worked at Arthur Gorrie before I went away to the detention centre that I would almost certainly have worked within the unit and I know for a fact that when I got back from my first trip at Arthur Gorrie that I was in a unit for one of my first two shifts back.

PN1679

But working within a unit doesn't mean automatically that you were classified as a unit officer, does it?---Well, I got paid as a unit officer.

**** WAYNE BARRY XXN MR DOUGLAS

PN1680

THE SENIOR DEPUTY PRESIDENT: Mr Barry, when you were acting as a unit officer did you perform any case management duties?---Only as far as behavioural reports on inmates.

PN1681

What other case management functions do full-time unit officers perform?---I believe from my experience the majority of it is behavioural reports and basically maintaining their behaviour to a suitable - - -

PN1682

MR DOUGLAS: So apart from case management is there any other difference in the work that you performed between the work of a security officer and the work of a unit officer?---Sorry, can you repeat that?

PN1683

When you work as a unit officer, apart from case management activities, do you do anything else that you don't do as a security officer?---Each role is different within itself.

PN1684

Well, explain to me how that is so?---Well, just recently I have received three days training as the allocations officer at Arthur Gorrie and the allocations officer has - from ACMs point of view - is classified as a security officer. I have also received two days training as an SIS officer who actually puts the inmates' details onto the computer when they're originally recepted into the gaol and that is also classified as a security officer.

PN1685

So you don't get a higher rate of pay when you do that work?---No, you don't.

PN1686

Well, when you get a higher rate of pay what work do you do that is different?---It would be working in the inmates' accommodation areas, in the units where they live.

PN1687

When you work as a security officer you're not performing work inside the units. You're in other locations?---It depends if we're required to assist in the units, yes, we do. If we have to escort, occasionally we will have to respond to an incidence and - - -

**** WAYNE BARRY XXN MR DOUGLAS

PN1688

So you can work inside a unit without being a unit officer?---We are at times called upon, yes, and not paid the unit officer rate.

PN1689

Are there job descriptions for those two classifications in the agreement?---Sorry, can you just - - -

PN1690

Are there documents which describe the work to be performed?---Like post orders.

PN1691

No, well, job descriptions or documents that outline the work that is to be performed by unit officers on the one hand and security officers on the other?---Each post has post orders which is the roles of all the jobs that that person in that position is required to do.

PN1692

Yes, according to whether the person's a unit officer or a security officer?---No, every post is different. There's a large variety of posts within the gaol and each post has post orders.

PN1693

Yes and people who work according to those post orders are classified as either unit officers or security officers?---By ACM, yes.

PN1694

Yes, in accordance with the agreement?---Yes.

PN1695

Now, my records - or the records I have tell me that you went to Curtin on five occasions?---Yes.

PN1696

Three occasions in the year 2000 and twice last year. Would that be accurate?---That is correct.

**** WAYNE BARRY XXN MR DOUGLAS

PN1697

Your first visit to Curtin was what, some three months after you were first employed?---Two months and 10 days.

PN1698

Two months?---The 10th of March I left for Curtin.

PN1699

I'll accept that, yes, and when you first went to Curtin you went there on an AWA?---Yes.

PN1700

Did that AWA classify you as a detention officer?---I would have to read it to be able to answer that question.

PN1701

You can't remember?---I honestly - we were classified as detention officers while we were working there but whether that was part of the AWA I can't remember.

PN1702

As a detention officer 1 or a detention officer 2?---I didn't realise that there were two levels in the detention officers.

PN1703

You have worked in Darwin on four occasions?---That's correct.

PN1704

What work were you doing there?---We were doing - we were picking up new detainees who arrived into the country from the Customs boat at the Naval wharf in Darwin.

PN1705

So these were escort activities?---Not necessarily. We were doing this initial reception. We were working with the Australian Federal Police and Customs on the initial processing in Darwin. We would stay there for about one or two days and then we would escort them to the various detention centres.

**** WAYNE BARRY XXN MR DOUGLAS

PN1706

You did that twice in the year 2000 and twice at the beginning of last year?---I think so. That seems about right.

PN1707

When you worked in Darwin you were not on an AWA?---We were paid our - - -

PN1708

So did that give you the high gross income that you received when you went to Curtin?---It paid us - sorry, can you repeat that?

PN1709

Well, you've told us when you went to Curtin, I think - well, this is what I understood - that you were attracted to working at Curtin because your gross income was significantly higher?---Yes, that's correct.

PN1710

Was your gross income significantly higher when you worked at Darwin?---Only because we did a lot of overtime.

PN1711

Yes but you knew before you went there that that was likely to occur?---That's basically what attracted us to the job, yes, that's correct.

PN1712

When did these two riots occur at Curtin? Incidentally, Curtin's closed, isn't it?---Yes, it is now, yes.

PN1713

It's been closed for some time now?---It's only been closed for a few weeks, I believe.

PN1714

A few weeks. When were the two riots?---One was when I first got to Curtin in March and the second one, I couldn't even guess at the date.

PN1715

The first one was during the first period that you went out there?---Yes.

**** WAYNE BARRY XXN MR DOUGLAS

PN1716

The year 2000?---Yes.

PN1717

The second one, would that be around about July 2001?---No, I don't think it was.

PN1718

Which was the first one?---Was when they pushed the fence over and walked up the road.

PN1719

What physical threat did you feel under when that occurred?---That particular one, for me there wasn't a lot of physical threat. However, I've also responded to a riot at Port Hedland as well.

PN1720

When did you go to Port Hedland?---We were required to take 47 detainees from Woomera who were identified as the main instigators of the June-July 2000 riots and escort them to Port Hedland.

PN1721

When you did that you were not on an AWA?---No, we were paid by Home Centre rates.

PN1722

THE SENIOR DEPUTY PRESIDENT: Sorry, you were paid by?---Home Centre rates. What we get when we're actually at Arthur Gorrie.

PN1723

MR DOUGLAS: Were you classified - did you retain your Arthur Gorrie classification or were you classified as a detention officer?---Well, that really wasn't discussed. No, that - - -

PN1724

You were just performing a function that was required?---I assumed that we just went along to do the job and classify it as whatever we were classified as at home. We were doing - I suppose we were doing the job of the detention officer but coming from the correctional facility.

**** WAYNE BARRY XXN MR DOUGLAS

PN1725

Well, that really was the position when you went to Darwin and when you went to Christmas Island, wasn't it? You went there not on an AWA - - - ?---Christmas Island was, as described to me by our Acting Operations Manager, was - the payment was Curtin rates plus per DMs.

PN1726

THE SENIOR DEPUTY PRESIDENT: Plus, sorry?---Per DMs, which is the daily allowance for - - -

PN1727

MR DOUGLAS: Were you told whether you were classified as a detention officer or not?---Well, we weren't physically told but we just assumed that for the sake of the exercise we were classified as detention officers.

PN1728

You went to Christmas Island when? About December?---I think it was about November 10 to 23 December.

PN1729

Last year, 2001?---This is just prior - yes, yes.

PN1730

So that is almost 2 years after you started work with ACM?---Yes.

PN1731

It was then that you received this self start kit?---That's correct.

PN1732

You have had one trip to Baxter?---We did an escort from Curtin. We left Brisbane, we flew to Woomera, picked up staff, flew up to Curtin, picked up 45 detainees and then dropped them at Baxter airport.

PN1733

That took you 2 days in September?---We left Friday afternoon and got home Sunday afternoon.

PN1734

Yes. So the work that you did at Darwin really wasn't detention centre work, was it?---It wasn't detention centre work as described in a detention centre because we weren't in a detention centre.

**** WAYNE BARRY XXN MR DOUGLAS

PN1735

The same in relation to the 2 days escort to Baxter or from Baxter?---No, no, we weren't in a detention centre. Not once did we enter the detention centre.

PN1736

You worked approximately 12 days at the centre on Christmas Island last year, December last year - November, December last year?---12 days?

PN1737

No, a bit longer than that, sorry?---5_ weeks.

PN1738

5_ weeks?---Yes.

PN1739

Prior to that the previous time that you worked in a detention centre was back in October 2000 at Curtin?---I got home on October 1 I think it was.

PN1740

So in paragraph 10 where you are talking, you say:

PN1741

The role of a detention officer in Immigration detention is similar to the role of a unit officer in corrections.

PN1742

You base that on the 5_ weeks' experience you had in December last year at Christmas Island and the experience you had at Curtin in the year 2000?---Yes. In a total it works out to about 2880-something hours that I've done in a detention centre.

PN1743

Yes, yes, I accept that, but the last time you worked in a detention centre is just on a year ago?---Just under - yes, yes, just under a year ago.

PN1744

Yes, just under a year ago. You don't carry guns at a detention centre?---I believe there is a weapon there but only in the event that we desperately require it.

**** WAYNE BARRY XXN MR DOUGLAS

PN1745

Unlike the position at Arthur Gorrie, detention officers are not trained to use weapons, in fact they are not allowed to use them?---I don't know what the training of the detention officer is because I haven't done the training of a detention officer.

PN1746

May I suggest to you that they are not allowed to have weapons at detention centres, it is prohibited?---Is a gas gun considered a weapon?

PN1747

What do you mean by a gas gun?---Well, a gun that shoots tear gas. Is that considered a weapon? I thought it was.

PN1748

Well, aside from that, one that shoots bullets?---Well, you said weapons.

PN1749

THE SENIOR DEPUTY PRESIDENT: The lawyer has been picked up.

PN1750

MR DOUGLAS: Yes, I'm a bit from the wild west, you see, and a gun to me is one that shoots a lever?---Okay.

PN1751

That sort of gun is a prohibited item in a detention centre, you agree with that?---Once again I think - I'm not 100 per cent sure but I believe that there was a weapon at Curtin. I believe there was a shotgun somewhere at Curtin in the event because there was such a delay for a response if things got bad.

PN1752

THE SENIOR DEPUTY PRESIDENT: Apart from that, detention officers don't carry guns?---No weapons are normally carried inside a detention centre but then again no weapons are allowed inside a correctional facility either unless you're actually escorting an inmate to hospital then you have to be armed. All weapons are kept outside the centre in a perimeter vehicle only.

PN1753

MR DOUGLAS: Arthur Gorrie is a maximum security prison?---It's a remand and reception centre which requires it to be a maximum security prison.

**** WAYNE BARRY XXN MR DOUGLAS

PN1754

How many inmates does it normally have?---It's got a maximum state of 710 when it's undoubled.

PN1755

Is there doubling occurring at this time?---Yes, there is.

PN1756

How long has doubling been occurring?---It's been going on for probably - on and off for the entire time that I've been there.

PN1757

THE SENIOR DEPUTY PRESIDENT: Sorry, what is doubling?---When you've got two inmates in one cell.

PN1758

MR DOUGLAS: You say in paragraph 9:

PN1759

Many of the skills that I use in Corrections I also use in Immigration detention.

PN1760

?---That's correct.

PN1761

Are there skills that you use in Corrections that you don't use in Immigration detention?---I'd say so because there's no visits areas in Curtin. I'm only basing this on my experience which is Curtin, Christmas Island. They're not allowed visitors, and probably the use of weapons, I would say.

PN1762

Prison operation is much more regulated by law of regulations, isn't it, than detention centres?---I believe it's much more controlled, yes. Detentions is only relatively new.

PN1763

Tony Voss, he is Operations Manager?---Tony Voss?

**** WAYNE BARRY XXN MR DOUGLAS

PN1764

Yes, Operations Manager?---He's currently in Port Hedland, yes.

PN1765

Yes, but he is an Operations Manager at Arthur Gorrie?---At Arthur Gorrie, yes.

PN1766

In the structure under him would be what, a Corrections Manager?---Yes, a Correctional Manager, yes.

PN1767

Under him an Assistant Correctional Manager at this current time?---I think at this current time they asked to classify it as an Assistant Correctional Manager, yes.

PN1768

Those, the Assistant Correctional Manager along with the Correctional Manager, are the people who supervise the work of unit officers and security officers at this time?---That's correct.

PN1769

Teamwork is important at Arthur Gorrie amongst the unit officers and security officers? I mean you don't make - you refer to teamwork in paragraph 23 saying:

PN1770

An important aspect of being a detention officer is teamwork.

PN1771

I mean that is - teamwork is a pretty essential factor in the efficient and proper running of a prison, isn't it?---That is correct.

PN1772

How many inmates are there at Arthur Gorrie?---It varies. It is usually round about 710. That is our maximum state but it jumps up and down depending on how many end up getting transferred each day.

**** WAYNE BARRY XXN MR DOUGLAS

PN1773

I have no more questions, your Honour, thank you.

PN1774

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Douglas. Ms Schofield, re-examination?

<RE-EXAMINATION BY MS SCHOFIELD [3.45pm]

PN1775

MS SCHOFIELD: You mention that you have done some placements and you have continued to be paid your Home Centre rates which are the Arthur Gorrie rates, is that correct?---Yes. Yes.

PN1776

What dictates whether or not you will be paid those Home Centre rates or whether you are paid under the AWA?---I think it depends on what job your - what your classification is prior to you doing those placements. My trip to Port Headland there was about 15 of us and there was also one or two permanent unit officers who went along and I assume that they would have been paid their unit officer rate along side of us getting paid our standard rate which is slightly lower than them.

PN1777

That was the Home Centre rate?---That is the Home Centre rates, yes.

PN1778

Why do you sign an AWA - why is an AWA used - I don't know if you know the answer to this but it seems to me on some occasions you sign an AWA. On other occasions you did the fly-in on your Arthur Gorrie rate. What basis is there for that?---I assumed that the AWA was more for the six week rotations not for the odd job that sort of pops up every now and then.

PN1779

When you signed an AWA were you doing a six week - - -?---Yes.

PN1780

Yes, and the other trips were shorter trips?---The other placement jobs, yes, they were only a couple of days.

**** WAYNE BARRY RXN MS SCHOFIELD

PN1781

You stayed on your Arthur Gorrie rate?---yes.

PN1782

Right. There is an enterprise agreement that applies at Arthur Gorrie, is that correct?---Yes.

PN1783

Thank you.

PN1784

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Ms Schofield. You are excused, thank you?---Thank you.

<THE WITNESS WITHDREW [3.46pm]

PN1785

THE SENIOR DEPUTY PRESIDENT: Does that conclude the evidence for today?

PN1786

MS SCHOFIELD: Yes, your Honour.

PN1787

THE SENIOR DEPUTY PRESIDENT: Now, you are objecting to a witness statement that Mr Douglas wants to rely upon. A witness he wants to call. Is it convenient if we deal with that objection now?

PN1788

MS SCHOFIELD: Yes. Yes, your Honour, we did put our concerns in writing in the submission that was filed according to your directions.

EXHIBIT #LHMU26 WRITTEN OBJECTION

PN1789

MS SCHOFIELD: I think, your Honour, our concerns are fairly clear in terms of the fact that Mr Gayton's report while it may well be a valuable document from a management point of view is essentially an externally developed job evaluation methodology which is, in our submission as we have outlined, quite a different beast than work value which is an industrial concept in which derives from the Act - - -

PN1790

THE SENIOR DEPUTY PRESIDENT: Well, how is it quite a different beast? They are both evaluations of the work, are they not? The value of the work if you like on a comparative basis.

PN1791

MS SCHOFIELD: In some respects although we would say and certainly our reading of the report would seem to indicate that there is the job evaluation process is a fairly closed process. It is one that is not open to scrutiny, to examination, to challenging. We are not clear how Mr Gayton derived the conclusions that he has set out in the report or whether the system itself lends itself to that form of scrutiny.

PN1792

THE SENIOR DEPUTY PRESIDENT: Well, isn't that more a matter of cross-examination rather than - - -

PN1793

MS SCHOFIELD: Well, it may be, your Honour, but we would say as well that there has been very little evidence of the use of this type of system in relation to awarding employees there is - - -

PN1794

THE SENIOR DEPUTY PRESIDENT: Well, how do you propose that I go about comparing the work of a detention officer with a metal tradesman and C10 classification?

PN1795

MS SCHOFIELD: Well, I suppose, your Honour, I would say that is probably a job that is best left to the industrial parties to lead evidence and make submissions to the Commission to allow you to draw your own conclusions in the context of precedent, other cases and the principles that guide the Commission. Really, that is our job and not Mr Gayton's.

PN1796

THE SENIOR DEPUTY PRESIDENT: It is certainly ultimately my job to draw the comparison.

PN1797

MS SCHOFIELD: Yes.

PN1798

THE SENIOR DEPUTY PRESIDENT: I don't think Mr Douglas would submit to the contrary either. I have read your submissions but expand on them as much as you like or perhaps it might be best if you do it in reply if you don't want to expand on them now.

PN1799

MS SCHOFIELD: Yes, that might be more appropriate.

PN1800

MR DOUGLAS: Your Honour, I have three brief points to make. Firstly, it is our submission the Commission should receive the evidence. It is certainly entitled to receive it. Secondly, the weight to be given to that evidence is a matter for the Commission. Thirdly and importantly, your Honour, we say there is significant precedent for the Commission either accepting as relevant and/or relying on Cullen Egan Dell job evaluation methodology.

PN1801

If I could provide your Honour with examples of that precedent. Firstly, your Honour, I hand up a copy of the Public Service (Non-Executive Staff - Victoria) Interim Award 1996 and the relevant Full Bench decision that gave rise to that award. I think these documents should be marked, your Honour, they will be the subject of submissions in some detail later on.

PN1802

THE SENIOR DEPUTY PRESIDENT: Yes, well, I don't usually mark awards and decisions but perhaps just for ease of - - -

PN1803

MR DOUGLAS: Identification, no other reason, your Honour.

PN1804

THE SENIOR DEPUTY PRESIDENT: Yes. I will mark the - which one do you want me to mark first or does it not - - -

PN1805

MR DOUGLAS: The interim award and the decision they could be marked as one.

PN1806

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

EXHIBIT #ACM10 INTERIM AWARD AND DECISION

PN1807

MR DOUGLAS: Could I invite your Honour to turn to the interim award. Your Honour is familiar with the history of this and I go in particular to page 6, part 3: Wages and Related Matters. Classification of Positions. 11.1 reads:

PN1808

The employer shall appoint or translate each employee into the five level structure.

PN1809

This is the occasion when the Victorian Public Service would reduce from a structure of some 120 classifications and within that structure many, many different jobs into the five band structure set out on this page. 11.2 reads:

PN1810

Each employee shall be appointed or translated into the five level structure and shall be classified and allocated a salary band utilising a position specification and at least one of the following evaluation methods.

PN1811

11.2.1:

PN1812

An analysis of points factors using Cullen Egan Dell points factor evaluation system and the following ranges.

PN1813

The points ranges are set out there and I simply refer to that, your Honour, to demonstrate that the relevant Full Bench back in December 1996 accepted that Cullen Egan Dell's job evaluation methodology was an appropriate tool to be used to slot many thousands of Victorian public servants into this new five-band structure. I don't need to go to the decision at this point. That concept, your Honour, was continued when the Commission, on 16 May in the year 2000, made an MX award with respect to the same group of employees, and I tender a copy of that award and the relevant MX decision and I ask that both documents be marked, your Honour.

PN1814

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Douglas.

EXHIBIT #ACM11 PUBLIC SERVICE NON-EXECUTIVE STAFF VICTORIA MX AWARD AND ACCOMPANYING DECISION

PN1815

MR DOUGLAS: Thank you, your Honour. Can I invite your Honour to turn to clause 12 of the award, which is four pages in, Increases to Salary Bands? 12.1 Classifications, the classification structures.

PN1816

THE SENIOR DEPUTY PRESIDENT: Sorry, what page?

PN1817

MR DOUGLAS: The fourth page, your Honour, of the award.

PN1818

THE SENIOR DEPUTY PRESIDENT: 12, 12.1, yes, I have that.

PN1819

MR DOUGLAS:

PN1820

The classification structures and classification methods provided for by the instruments incorporated by the operation of Part 5 of this Award will continue to apply.

PN1821

Then your Honour will see the five-band structure set out on the following page and a number of structures relevant to certain specific departments of the Victorian Government. Now, those five-band structures of course continued to be based on the Cullen Egan Dell job evaluation methodology. I don't need to go to the decision at this time, your Honour, except to point out that on page 5 of 25 at point 15 that the Full Bench in the MX case recorded that Hugh Bucknell, National Practice Leader for Classification and Reward Matters and principal of William M. Mercer, Cullen Egan Dell Limited gave evidence and here's the nature of his evidence is referred to on page 7 of 25 in paragraph 21.

PN1822

The other area, your Honour, where there is a significant precedent arises from the Full Bench decision with respect to Employment National, another matter which your Honour is familiar with.

PN1823

THE SENIOR DEPUTY PRESIDENT: Yes. My past is coming back to haunt me, Mr Douglas.

PN1824

MR DOUGLAS: Yes, your Honour, well unfortunately your Honour was with me on those occasions. Can I provide your Honour with a copy of the Full Bench decision and a copy of the statement, the evidentiary statement of Michael Smith, who was then with Cullen Egan Dell and gave evidence to that Full Bench. Could both of these documents be marked as one exhibit, your Honour?

PN1825

THE SENIOR DEPUTY PRESIDENT: Yes.

EXHIBIT #ACM12 NATIONAL DECISION AND EVIDENCE-IN- CHIEF OF MICHAEL SMITH

PN1826

MR DOUGLAS: Thank you. If your Honour goes to the Full Bench decision, firstly at page 6 of 22, immediately under the heading: Decision, it is recorded that the Full Bench said:

PN1827

In deciding the form and content of ENAs award application we have proceeded on the assumption that the various APS awards apply.

PN1828

So the proceedings were debated on the basis that the classification structures that existed then in the Australian Public Service were in fact in operation at Employment National and the award-making process, the debate as to the nature of that award, was carried out in accordance with that presumption. Then on the following page it's recorded that the AWAs which were then in place at Employment National contained a salary structure substantially different to those found in the APS general employment conditions award and - - -

PN1829

THE SENIOR DEPUTY PRESIDENT: Where do I see that?

PN1830

MR DOUGLAS: That's on page 7 at the top, your Honour, the first paragraph on page 7. Then on page 8 the Commission referred - the Bench referred to principle 11 which related to the first award an extension of existing awards and then if your Honour goes to page 15 of 22 where the Bench set out its conclusion as to the minimum salaries to be applied, they said ENA have claimed a six-band classification structure which is accompanied by job role descriptions which are set out in schedule A. The rates of pay originally claimed had a band A1 with a minimum rate of $22,700. Subsequently, following questions from the Bench, this was amended to equate to the base fitters rate in the Metal, Engineering and Associated Industries Award which is 23,617 per annum.

PN1831

Then immediately below the AMB salary structure, your Honour, the Bench continued:

PN1832

ENA called Mr Smith, a representative of Cullen Egan Dell, who gave evidence on the fixation of the minimum rates of pay in ENAs proposed award. The CPSU submitted that the Commission should reserve its position on pay rates and I don't go further in that.

PN1833

The last paragraph on that page:

PN1834

We have decided to proceed to deal with ENAs salary and classification structure claim. For the reason we have already set out ENAs entitled to have a classification structure best suited to its own requirements and not those developed for the APS subject to it meeting the criteria for fairness to its employees' concern. Having regard to the evidence given by Mr Smith, we are satisfied that the amended classification structure and salaries meets the requirements of the Act and the principles set out in the Pay Rates Review decision.

PN1835

Now, if you turn to Michael Smith's evidentiary statement you will see on page 2, your Honour, the points score arranges for the A group and the B group and A1 had a point score range from zero - I can hardly imagine any employee having a zero point score - but zero to 159 and Mr Smith, in cross-examination, gave evidence to the effect that the C10 classification, using the points score evaluation system, fell within that range and I think on recollection the points score was in the order of 140, 141 or thereabouts and it was because of that that the Full Bench decided that the 22,700 that was originally proposed by Employment National was too low and that A1 should record as the minimum rate the C10 then existing in the Metal Industry Award.

PN1836

For those reasons, your Honour, we submit that this evidence should be entertained. As I say, it's a matter of the weight - is a matter for the Commission.

PN1837

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Douglas. Ms Schofield.

PN1838

MS SCHOFIELD: Well, your Honour, we've already stated our concerns that this system would seem to be importing an external methodology into these award proceedings that has limited relevance and also it would seem to be somewhat confusing in light of the evidence that has been given and the evidence that will continue to be given during these proceedings. We believe this matter is one for the Commission to determine based upon the evidence that is presented by the industrial parties. We are not aware that there's any evidentiary basis for Mr Gayton's report. It is a report that has been developed on the request of management about a job evaluation system which the industrial parties seem to have had - or the union in particular seems to have had no input whatsoever in a formal sense.

PN1839

To some extent that can distinguish it from a number of the cases that have been tendered where it would seem to me that there was negotiational discussion on the role in which the job evaluational point system would play within the classification structure. We are not sure how the evidence of Mr Gayton is relevant. The proposal put forward by the union draws upon the wage fixing principles of the Commission and the relativities that derive back from the August 1989 wage principles.

PN1840

The submission of Mr Gayton is not seen in any sense to be consistent with or contribute to our understanding of how those principles or the system of relativities that applies to wages through most awards of this Commission, you know, we are not clear how this report fits in with the current principles. That may be something that is also missing from the company's submission because we can't see what has been proposed through this evidence. It is a person's report, a report of an organisation, a consultancy organisation, that has been prepared for management. The industrial parties have not had any opportunity to discuss or negotiate over the form of this consultancy project or what issues, what work was going to be reviewed.

PN1841

That would seem to be a distinguishing feature from a number of the cases that have been tendered where on a cursory look at them it would seem that there was some commitment in negotiating a system with the industrial parties, but that is something perhaps we can address further down the track once we have had an opportunity to review the material that has been tendered. Your Honour, we re-state that it is not the role of Mr Gayton to draw conclusions about the work that is the subject of this application. It is the role of the Commission and we submit that Mr Gayton has limited knowledge of the work that is being reviewed in this award.

PN1842

He has never worked in the industry to our knowledge and on reading the report most of the work that has been undertaken has been undertaken in relation to public sector employment and management level positions. So we object to the evidence, your Honour, and believe that very little weight can be accorded to it.

PN1843

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Ms Schofield. I intend to allow into evidence the statement of Mr Gayton. I agree with Ms Schofield that it is a matter for the Commission to decide what relativities to apportion to various functions within ACMs Detention Centres but its task is also one to compare benchmark rate with the C10 classification. I think that I will be assisted in that task by Mr Gayton's evidence. I think much of what you have put to me, Ms Schofield, goes to the weight I should give to his evidence rather than to the admissibility of his evidence and no doubt you will make submissions in relation to that.

PN1844

The queries you have in relation to Mr Gayton's methodology can perhaps be addressed in your cross-examination of him and indeed I may well have a few questions of Mr Gayton myself to help me to understand the way in which he arrived at his conclusion. I emphasise that I will make the ultimate conclusions but I may be assisted by the evidence of Mr Gayton. Similar evidence has been utilised in other matters in the Commission by Full Benches and for those reasons, as I have indicated, I'm inclined to admit his evidence. Is that all that you have for me today?

PN1845

MS SCHOFIELD: Yes, your Honour.

PN1846

MR DOUGLAS: Can I propose we start at 10.30, your Honour? I won't be terribly long with Mr Thomas. Mr Gayton should be here by 11, 11.15.

PN1847

THE SENIOR DEPUTY PRESIDENT: Yes, very well, we will adjourn until 10.30 tomorrow morning, thank you.

ADJOURNED UNTIL FRIDAY, 18 OCTOBER 2002 [4.13pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

WAYNE BARRY, SWORN PN1570
EXAMINATION-IN-CHIEF BY MS SCHOFIELD PN1570
EXHIBIT #LHMU25 WITNESS STATEMENT OF W. BARRY SIGNED AND DATED 17/10/2002 TOGETHER WITH ATTACHMENTS PN1584
CROSS-EXAMINATION BY MR DOUGLAS PN1632
RE-EXAMINATION BY MS SCHOFIELD PN1775
WITNESS WITHDREW PN1785
EXHIBIT #LHMU26 WRITTEN OBJECTION PN1789
EXHIBIT #ACM10 INTERIM AWARD AND DECISION PN1807
EXHIBIT #ACM11 PUBLIC SERVICE NON-EXECUTIVE STAFF VICTORIA MX AWARD AND ACCOMPANYING DECISION PN1815
EXHIBIT #ACM12 NATIONAL DECISION AND EVIDENCE-IN-CHIEF OF MICHAEL SMITH PN1826