C2003/841, Transcript of Proceedings [2003] AIRCTrans 1528 (28 April 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N VT10326
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

C2003/841
C2003/1006

EMERGENCY COMMUNICATIONS VICTORIA

and

AUSTRALIAN LIQUOR, HOSPITALITY
AND MISCELLANEOUS WORKERS UNION

Notification pursuant to section 99 of the Act
of a dispute re action being taken at the Tally
Ho site in relation to bargaining issues

EMERGENCY COMMUNICATIONS VICTORIA
and

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE,
CLERICAL AND SERVICES UNION AND OTHERS

Notification pursuant to section 99 of the Act
of a dispute re enterprise bargaining negotiations

MELBOURNE

11.10 AM, WEDNESDAY, 9 APRIL 2003

Continued from 2.4.03

PN132

THE COMMISSIONER: Good morning. I have received the replies and I make not further comment about that at this stage, but maybe it would be appropriate, Mr Hocking, if you give me an update on the situation the ECV finds itself in.

PN133

MR L. HOCKING: Yes, Commissioner, thank you. I should enter - or seek to seek leave to appear on behalf of ECV.

PN134

THE COMMISSIONER: I am sorry, I thought you had already appeared, but - - -

PN135

MR HOCKING: I don't think I have in these - in the earlier proceedings.

PN136

THE COMMISSIONER: Very well. Well, that appearance is noted, I apologies.

PN137

MR HOCKING: Yes, thank you, Commissioner. Commissioner, I assume you are referring to the consideration of your recommendation by the Victorian government and where that matter stands.

PN138

THE COMMISSIONER: Yes.

PN139

MR HOCKING: My instructions are that the matter is still under consideration and will be communicated to ECV and in an appropriate manner to the Commission and the other parties as soon as it is available, presumably some time early next week, although I can't be precise about that date.

PN140

THE COMMISSIONER: All right.

PN141

MR HOCKING: If the Commission pleases.

PN142

THE COMMISSIONER: All right, thank you. Well, does anybody want to speak to the submissions and their replies at all. I think the way I have decided to proceed in accordance with my most recent decision, the procedural one, was that I would continue to receive such information in evidence or materials the parties wish to put before me, for the possible determination of an interim shift payment, depending upon the acceptance of the recommendation. I now have all the documentary material before me and I am just wondering whether anybody wanted to take the opportunity this morning, or to schedule any short oral argument in relation to that.

PN143

I mean that can be done today or I can - and I can list it at another time if you do want to supplement what has been put with any short oral argument. I mean I would be perfectly happy if the parties said that they didn't, but I don't want to confine anybody exclusively to the papers. There may be a view that the force of an argument can be strengthened by some oral debate.

PN144

MR CRAMPTON: Commissioner, it looks like it might be left to us to address you on that matter. There are - - -

PN145

THE COMMISSIONER: It is open to either side, really.

PN146

MR CRAMPTON: Yes.

PN147

THE COMMISSIONER: You have both put forward contending positions.

PN148

MR CRAMPTON: It is fair to say that the unions came along today with a view and objective to supplement the written submissions with some brief oral submission.

PN149

THE COMMISSIONER: All right, well I am quite happy to hear you.

PN150

MR CRAMPTON: Yes. We just - I must say that I am a little unsure as to how ECV wishes to address that matter.

PN151

THE COMMISSIONER: All right. Would you like to supplement what has been filed in written form - - -

PN152

MR HOCKING: Well, Commissioner, we have a fairly open mind to procedure if - we haven't had a chance to discuss this matter with the unions. However a fair amount of written material has been provided to the Commission. In light of your comments I think we would be satisfied to put fairly brief oral submissions, assuming that the witness statement of Mr Coulter would be entered into evidence.

PN153

THE COMMISSIONER: Well, I gather that it is uncontested.

PN154

MR CRAMPTON: Pardon?

PN155

THE COMMISSIONER: There is no requirement for Mr Coulter to be cross-examined, or is there?

PN156

MR CRAMPTON: There are some issues which we think should be expanded upon and - - -

PN157

THE COMMISSIONER: So do you want to cross-examine Mr Coulter, do you?

PN158

MR CRAMPTON: Briefly on just two issues. One of - it may be that we can address that matter otherwise, but it probably is the most efficient way to deal with it.

PN159

THE COMMISSIONER: Look, I think it might be useful in a minute if we just take a short break, and the parties might like to confer on the order of any short oral argument or cross-examination of Mr Coulter, if necessary, so that we have a smooth procedure and we are not jumping about. Could I just ask two questions. One is rather crucial, and is embedded in a fundamental apparent difference of approach in the documentation, that is the question of weekends. Could I - could there be some clarification, for example, as to ECVs position.

PN160

The unions' reply seems to be predicated on the understanding that ECV is opposed to any interim shift payment determination applying to anything other than the hours referred to as the unsociable hours, and that other hours on the weekend should not be subject to any interim shift payment. What I am really seeking to do is to whether or not that is - to establish, is that ECVs position? Is that ECVs position?

PN161

MR HOCKING: I am sorry, Commissioner, I didn't quite catch your question. I was seeking some instructions.

PN162

THE COMMISSIONER: The union's reply to ECVs original written submissions is predicated on the basis that ECV is opposed to the fixation of an interim shift payment which applies to any hours on the weekend, other than the so-called unsociable hours.

PN163

MR HOCKING: My instructions, Commissioner, are as set out in our outline of submission, that what we propose in terms of what you should award in this matter would apply to those actual unsociable hours and weekends. So, in other words, for the entire duration of any shift on a weekend.

PN164

THE COMMISSIONER: Any shift?

PN165

MR HOCKING: Yes. So it is - - -

PN166

THE COMMISSIONER: That is what I thought I was reading.

PN167

MR HOCKING: It is perhaps not expressed as clearly as it may have been, but - - -

PN168

THE COMMISSIONER: Just let me Mr - - -

PN169

MR HOCKING: - - - but on that basis - - -

PN170

THE COMMISSIONER: No, no, just - - -

PN171

MR HOCKING: - - - I don't think there is a dispute.

PN172

THE COMMISSIONER: Just a moment. No, I read your submissions the way you have put them to me and I was a little bit confused by the fact that - I was a little bit confused by the way in which the reply of the unions emerged, because it seemed to me to perhaps misunderstand your position. But I wanted to be absolutely certain it wasn't me that was misunderstanding your position and that the unions were understanding it correctly.

PN173

But I think that solves quite a significant problem that I discerned from the way in which the replies were filed because I proceed now on the basis that if there is to be an interim shift payment determined, then it should be for the so-called unsociable hours which are worked Mondays to Friday, and for any shift which occurs between midnight Friday and midnight Sunday.

PN174

MR HOCKING: Commissioner, if I may issue - make a further statement to clarify that more precisely. My instructions are these, that consistent with the proposition that has been put more generally, in our - in the written material filed, that it is ECVs submission that whatever the amount awarded should apply only to the actual hours worked between the 6 pm and 6 am span, therefore, if there was a shift that fell partially outside of those unsociable hours so defined, only the portion of the shift falling within those hours should attract a penalty rate, the similar principle would apply to weekend work, that if a shift fell partially within the 12 midnight - midnight Friday to midnight Sunday, but only that portion of the shift falling within that span should attract the penalty rate. That is I think a minor variation upon the proposition, to make it abundantly clear.

PN175

THE COMMISSIONER: Well, I think it might be more significant and I think it just highlights why this matter needs to be made as clear as possible. And we have to choose our words very carefully in describing what the scope of the determination of any interim shift payment might be.

PN176

MR HOCKING: It has been suggested to me, Commissioner, that you are suggesting there might be a break to sort out some of the procedure; we might have a brief discussion with the unions about this matter.

PN177

THE COMMISSIONER: All right. Well, you might like to consider this during the break as well.

PN178

MR HOCKING: If the Commission pleases.

PN179

THE COMMISSIONER: You might give consideration to this question. If a shift was worked, if ordinary time hours were worked on a shift which occurred between 6 am and 6 pm on a weekend, should there be any shift penalty or allowance and, if so, should it be as proposed by ECV if such a determination were to in the event be made. Is that clear?

PN180

MR HOCKING: Yes, ordinary hours.

PN181

THE COMMISSIONER: Yes, for ordinary hours. You might also like to give consideration to this question, although I think the answer to this is probably more readily predictable on the material: I take it that ECV suggests that if overtime is worked and the overtime hours are worked during unsociable - the so called unsociable hours or on the weekends, that the overtime should be remunerated exclusively at the overtime rate without any additional amount of payment, whereas - and I clarify this from the unions' perspective. My understanding is that there is a general proposition from the unions that where overtime is worked during unsociable hours, the employee should be remunerated at the ordinary time rate plus the shift payment and at the factor of overtime applicable to the hour worked; is that right? So it is a compound amount. The ordinary time rate is increased by a shift payment, whether it be of a percentage or a dollar amount, to become the hourly rate for the purposes of the overtime provisions of the agreement.

PN182

MR CRAMPTON: That is correct, Commissioner.

PN183

THE COMMISSIONER: That is your position, yes. The parties might like also to give some consideration to assisting the Commission in a particular way in forming up issues for decision. It seems to me that the submissions that were originally filed are largely focusing upon a quantitative fixation of an interim shift payment amount. Now, what the parties had in mind principally was the approach to the quantification of such an amount. What has arisen, quite logically, is some other issues as to what the incidence of the payment of the amount might be in particular circumstances, notably on weekends and when overtime is performed.

PN184

I wonder if the parties could draft a number of questions for the Commission to answer, in addition to what the amount of shift payment should be, and give consideration to ensure that all of the necessary questions are answered for the purposes of the application of any interim shift payment that might arise in the event the recommendation is fully accepted. I wouldn't like the situation to be that it was necessary for the parties to infer something from the Commission's decision in relation to the application of any interim shift payment; that should be avoided. And certainty should be provided for by posing the necessary questions about the application of any interim shift payment rather than leaving those matters either undecided or ambiguously addressed for lack of clarity in terms of prescribing the necessary questions to be answered. All of these things could perhaps be addressed in the next 15 to 20 minutes. I will ask my associate to return at about that time to see whether or not the parties are ready to proceed. Thank you.

SHORT ADJOURNMENT [11.25am]

RESUMED [12.37pm]

PN185

THE COMMISSIONER: Yes, well, I understand that the union parties require that Mr Coulter prove the witness statement filed in the matter and be subject to cross-examination. So, Mr Coulter, if you would be kind enough to take the stand and choose either the oath or the affirmation as you wish.

<PETER RUSSELL COULTER, SWORN [12.37pm]

<EXAMINATION-IN-CHIEF BY MR HOCKING

PN186

THE COMMISSIONER: Thank you, Mr Coulter; please be seated. Yes, Mr Hocking.

PN187

MR HOCKING: Yes, thank you, Commissioner.

PN188

Mr Coulter, you have stated your name and professional address to the Commission. Are those correct?---They are correct, yes.

PN189

Have you had a statement prepared for these proceedings?---I have, yes.

PN190

Does it consist of some 18 numbered paragraphs?---It does.

PN191

Is the contents of your statement, to the best of your knowledge, true and correct?---It is.

PN192

Thank you. I have no further questions, Commissioner.

PN193

THE COMMISSIONER: Did you sign it on - sorry.

PN194

MR HOCKING: I seek to tender the witness statement.

PN195

THE COMMISSIONER: Yes. Just before you do, did you sign it, Mr Coulter? It says it is signed but I don't have a signed copy - not that anything turns on it?---That is a good question. I can't recall signing it to be honest with you.

PN196

Right. That is all right?---I can't say that I have.

**** PETER RUSSELL COULTER XN MR HOCKING

PN197

That is all right. Do you have a copy in front of you now?---I do, yes.

PN198

The document that Mr Coulter has in front of him will be exhibit ECV1.

EXHIBIT #ECV1 WITNESS STATEMENT OF P.R. COULTER

PN199

THE COMMISSIONER: Yes, Mr Crampton.

PN200

MR CRAMPTON: Thank you, Commissioner.

<CROSS-EXAMINATION BY MR CRAMPTON [12.40pm]

PN201

MR CRAMPTON: Mr Coulter, if I could characterise the transition from Intergraph to ECV as being one where the functions of the former Intergraph operations had been assumed by ECV, would that be a reasonable characterisation?---That is fair and reasonable, yes.

PN202

Are you aware of the training regime that existed within Intergraph in respect of the training of employees to become call and despatch operators?---I am aware of the training, yes.

PN203

Consistent with the assumption of the function has ECV similarly assumed that same training pattern or regime?---It has.

PN204

If I could just take you to paragraph 16 of your witness statement. You set out there a number of points in respect of the qualifications and experience of staff who operate at the call and despatch operation. On a reading of that would it be unfair of me to draw a conclusion or inference that the staff training is not a significant factor in your mind?---That is not the point that I was making. Staff training is certainly significant for ECV and for ECV employees.

**** PETER RUSSELL COULTER XXN MR CRAMPTON

PN205

So that being significant - you know, the training regime being significant for ECV and ECV employees, does the training program instil within employees a high skill level in respect of the operations they undertake?---It provides them with all the skills they need to do the particular call-taking and despatch activities they are required to perform.

PN206

And provides them with the capacity to assume the responsibility to carry out and fulfil those functions?---Of course it does, yes.

PN207

And you would regard the positions of the call and despatch operators and the duties that they undertake being one of a responsible position?---They are responsible positions.

PN208

If I may I would like to - Commissioner, I would like to hand a document to Mr Coulter and I will hand up a copy for the Commission.

PN209

What I have handed to you, Mr Coulter, is a decision of the Commission in the - that decision is the decision of Senior Deputy President Lacy recorded in print PR915053 and it goes to the organisational coverage for employees - Electrical Power Industry Victoria, application to revoke demarcation order. Do you recognise that document?---No, I don't.

PN210

So you have not seen this before?---Well, I can't recall seeing that document before. I may well have but I can't recall, no.

PN211

But you accept it is that decision though?---I have no reason not to believe that.

PN212

If I could take you to page - no, if I could take you to paragraph 19 and what we have at paragraph 19 is the continuation of his Honour's observations in respect to the site inspections that were carried out on 8 January 2002. At paragraph 19 the Senior Deputy President observes that:

**** PETER RUSSELL COULTER XXN MR CRAMPTON

PN213

The employees at the company's premises at Burwood and the World Trade Centre must have up-to-date and competent skills. The training of employees at both sides was described as being competency-based. That is, employees who are not authorised to perform the function in which they have been trained until they are assessed by a manager that is deemed competent in that area.

PN214

Would you agree that that is the case at present?---That is correct.

PN215

Then if I can then take you to paragraph 20 and that half-way down, on the fourth line, it commences there:

PN216

Once qualified as calltakers they can apply for positions when available for despatch training. They achieve Certificate II Call Centre Operator which is a nationally accredited position under the National Accreditation System.

PN217

Is that still the case?---It is.

PN218

Now if I could take you to paragraph 21, third sentence down, half-way through that - third line down, I beg your pardon, half-way through, the observation there is:

PN219

They consolidate training by working for six to ten months in the position. Once the employees move from a call-taking position and is trained as a despatcher they gain a nationally accredited Certificate III.

PN220

Is that still the case?---That is the case. I would have to question whether it is six to ten months, I can't recall that specifically, but certainly they are accredited Certificate III which allows them to do purely their call-taking and despatch activities only.

**** PETER RUSSELL COULTER XXN MR CRAMPTON

PN221

In that case can I take you to paragraph 23, the sixth line down. After having described the process about taking the call, his Honour then observes that:

PN222

The calltaker stays on the phone to the caller, if necessary, and gets further information and gives advice to the caller about what to do.

PN223

Now, that is an observation of his Honour when inspecting the operations of Intergraph. Is that position fair, a fair observation by his Honour in respect of what the operations were?---I obviously don't know what was in his Honour's mind at that time. One would assume that he means telling the person on the line what to do consistent with the training and his qualifications and the requirements of the calltaker.

PN224

But you would have no argument that his Honour's assessment was that the calltaker gives advice to the caller as to what - about what to do?---I make that point very clearly, that is advise that the calltaker is able and qualified to do consistent with that calltaker's job, job description, and the requirements that they have not to - - -

PN225

Well, following from that then - - -?--- - - - not to do anything other than that.

PN226

Right. Well, his Honour then observes, if you follow it through, that:

PN227

During the course of the site inspection I, in fact, overheard one of the calltakers giving advice to the caller to gently turn the person on their side, tilt their head back away from their chest, and make sure the area is clear from any danger.

PN228

Is that consistent with the position description and those matters which you have just referred to?---Calltakers are able to give what I think they term as post despatch instructions which are very simple, basic, first aid requirements, and they are able to do that. That is consistent with their training. It is basic and if they require anything more than that, there are, you would be aware, qualified clinicians within the room available for them to call on if so required.

**** PETER RUSSELL COULTER XXN MR CRAMPTON

PN229

So it is consistent with their training to give first aid advice?---They are able to do certain things with the prompt of the computerised system which they use, yes.

PN230

Are you aware of in your experience, of having dealt with calltakers, as you might call a call-taking environment, where that same sort of process occurs where people give basic first aid advice in an authoritative way to a caller?---I know in most work locations there are people who are able to give first aid, irrespective of what their job may well be whether they be a calltaker or whatever the case might be.

PN231

The question was not whether there were people in that environment who could do that; the question was, are you aware of people giving that advice over the telephone in response to requests?---There may or may not be. I haven't - - -

PN232

No, but you can't confirm that there is?---I can't confirm that there isn't.

PN233

Thank you.

PN234

THE COMMISSIONER: Just out of interest, Mr Crampton, isn't that a work value consideration?

PN235

MR CRAMPTON: Yes, your Honour, and to a - - -

PN236

THE COMMISSIONER: Isn't the concept here that the subject matter of this inquiry is the appropriateness or otherwise - well, not the appropriateness but the amount of compensation which should be payable at least on an interim basis for the performance of the work whatever the value of it might be at particular times?

PN237

MR CRAMPTON: Yes. Yes, your Honour, and that is precisely the point which we sought to elicit from ECV which would have obviated the need for, in our view, cross-examination. It was simply to indicate that - - -

**** PETER RUSSELL COULTER XXN MR CRAMPTON

PN238

THE COMMISSIONER: Well, you could have put that to me in argument, that to the extent that what ECV was putting was that the amount of the shift payment which should apply to work performance at particular times should be determined by reference to the value of the work - - -

PN239

MR CRAMPTON: There is also - - -

PN240

THE COMMISSIONER: - - - was either erroneous or not. I mean, I am quite sure whether, in fact, you have put that fairly and squarely to Mr Coulter; maybe I could.

PN241

Mr Coulter, is it in some way having regard to your witness statement relevant to the determination of what a shift payment should be what the value of the work is?---Well, maybe I could answer that by saying that the purpose of including these details in here was to say we have got people who are within a specific industry.

PN242

I see. So it is not the value of the work as such, but it is the characteristics of the work that you are drawing attention to?---It is the characteristics of the work. That is true.

PN243

For any potential comparative purposes; is that right?---That is correct, that is correct. What I am trying to say here is they are not qualified firefighters, they are not qualified policemen, they are not qualified paramedics. I am not questioning at all that there is a minor component of their activity which would require, as Mr Crampton suggests, some basic first aid instruction. That is clear, but they are clearly and absolutely not in the same category as paramedics, firefighters or policemen.

PN244

And I understand that really being in support of the proposition that for the purposes of determining an amount of shift payment, interim or otherwise, if there were to be any comparative considerations they should be conducted having regard to the nature of the work?---That is correct.

**** PETER RUSSELL COULTER XXN MR CRAMPTON

PN245

MR CRAMPTON: Thank you, Commissioner. Well, I accept the characterisation given, however - - -

PN246

THE COMMISSIONER: Well, no - well, I am not suggesting you have to.

PN247

MR CRAMPTON: I know.

PN248

THE COMMISSIONER: All I was trying to ascertain from Mr Coulter is clarity about not only the nature of the evidence, but also the purpose of it so that your cross-examination could proceed. I mean, you may take the view that Mr Coulter is wrong and that there are appropriate reasons why any comparators might extend into areas different to those which Mr Coulter would maintain should be the case, having regard to the nature of the work, because you may not agree with his characterisation of the nature of the work. I wasn't doing anything other than trying to lay the foundations as to what the point of contest, if any, is between you for the purposes of the cross-examination.

PN249

MR CRAMPTON: Thank you, Commissioner. Well, I will just deal with a couple more questions, sir. If I could take you to paragraph 25, Mr Coulter. The fourth sentence down deals there with the Melbourne Metropolitan fire - Melbourne Fire Brigade, I beg your pardon, and Country Fire Authority calltakers and despatch operators receiving training 7 to 8 weeks, and work with a mentor until competent; that is approximately 3 to 4 months. Then it goes on that:

PN250

They are trained in call-taking despatch operations for both CFA and MFB. Consolidated training by working for 12 to 18 months in the position. The procedure is generally that the calltaker takes calls, enters, verifies locations, finds the incident, enters appropriate code.

PN251

Is that consistent still with the way in which you provide the training?---Yes, pretty well, yes.

**** PETER RUSSELL COULTER XXN MR CRAMPTON

PN252

And that also - that having completed that training, that the calltaker and despatcher is provided - or has attained the nationally accredited certificate III level?---I think that is right, yes.

PN253

And similarly with police operations, that would be the case, isn't it?---Yes, that is correct.

PN254

Thank you. If I may then just briefly take you to paragraph 18 of your witness statement. What you set out there is a range of shift rosters. Is it right to assume that they refer only to, if you like, the rotational shift rosters?---That is correct.

PN255

That being the case, is there - there are other hours of work that are worked by employees in call and despatch operations?---There are staff that don't work, and for all intents and purposes they are 9 to 5 staff, for want of a better definition, who don't work a rotational roster arrangement. There is a small number of those staff at Tally Ho, that is correct.

PN256

THE COMMISSIONER: 9 to 5, Monday to Friday?---Yes.

PN257

MR CRAMPTON: Thank you?---And the reason for not including those in here is because they are not falling in within what either party would regard as qualifying for a shift payment of any sort.

PN258

Have those people - there is also Net Com people, is it, who work - they work - - -?---They basically do that Net Com activity, yes.

PN259

There is also an E shift. Are you aware of E shift in the fire and call despatch area?---An E shift? No - - -

PN260

It is the day shift?---The day shift - well, yes, basically the same thing, yeah, E shifts.

**** PETER RUSSELL COULTER XXN MR CRAMPTON

PN261

Yes.

PN262

THE COMMISSIONER: There is an E shift in this - - -?---There is all sorts of shift.

PN263

In this list there is an E, isn't there?---On that list, that is just - - -

PN264

MR CRAMPTON: I beg your pardon. No, there is - I am not referring to the identification of those shifts there, Commissioner.

PN265

THE COMMISSIONER: You are referring to another shift.

PN266

MR CRAMPTON: Yes. The shift configurations at ECV predominantly evolve from the, if you like, emergency services shift arrangements of having rosters of A, B, C and D roster which provide the 24 hours, 7 day rotational shift coverage. What I was referring to was in addition to those there is a further shift which has been nominated as shift E.

PN267

THE COMMISSIONER: But that is not the E shift referred to - - -

PN268

MR CRAMPTON: That is not that E shift - - -

PN269

THE COMMISSIONER: - - - in paragraph 18.

PN270

MR CRAMPTON: No, it isn't.

PN271

THE COMMISSIONER: So we will call that the capital E shift. All right.

**** PETER RUSSELL COULTER XXN MR CRAMPTON

PN272

MR CRAMPTON: Yes, Commissioner.

PN273

THE COMMISSIONER: Now, well, what is that shift, capital E?---I think you are about to tell me, Mr Crampton.

PN274

MR CRAMPTON: Are you aware of that shift being a day shift operation?---Yes, I - yes.

PN275

THE COMMISSIONER: Well, what is the nature of it, please, Mr Coulter?---Well, it is just that they - they don't work a rotational shift that takes them through a normal night - - -

PN276

This is the 9 to 5, Monday to Friday group?---Yes. I am not sure whether - no, I am not using the hours 9 to 5 just to provide a definition.

PN277

But it is between 6 and 6?---It is between 6 am - - -

PN278

It is later than 6, it commences later than 6 and it - - -?---Later than 6 am and before 6 pm.

PN279

And it finishes earlier than 6 pm?---That is correct, sir.

PN280

And it is only worked Monday to Friday?---Yes.

PN281

MR CRAMPTON: And those employees who work the hours of work not identified in paragraph - - -

PN282

THE COMMISSIONER: 18.

**** PETER RUSSELL COULTER XXN MR CRAMPTON

PN283

MR CRAMPTON: - - - 18, thank you; in paragraph 18 are paid under the same terms and conditions - are paid the terms and conditions as provided for in the enterprise agreement, are they not?---They have the same hourly pay rate, yes, that is correct.

PN284

Thank you. I have no further questions. However, I must - there are some others.

PN285

THE COMMISSIONER: Yes, very well. Thank you, Mr Crampton. Ms Forbath.

<CROSS-EXAMINATION BY MS FORBATH [12.58pm]

PN286

MS FORBATH: Mr Coulter, are you aware of the fact that you register the calltakers and despatchers with an international body called the International Emergency Medical Despatchers Academy once they have passed the Pro QA tests?---I am not aware that we continue to do that. I don't know that we are a registered organisation with that organisation any more so I am not sure whether it is or is not the case.

PN287

Right. Are you aware that that is renewable - that registration is renewable every two years?---I am aware of requirements of the registration, yes. As I say, I am not sure whether we are or choose to currently be registered or not.

PN288

Right, and are you aware that the company, that is Emergency Communications Victoria, prior to the creation of Emergency Communications Victoria, Intergraph who was the previous employer have to pay a fee to this organisation to register the despatchers and calltakers on an annual basis; are you aware of that?---I - no, I am not aware whether there is or is not a fee, it is not something that I can be specifically clear on, no.

PN289

Are you aware that this international academy marks the test, the Pro QA test, that these employees have to be subjected to?---The Pro QA activities is conducted by ECV employees, so it is not the academy that does any marking. We conduct that and run the Pro QA process complete and absolutely within house.

**** PETER RUSSELL COULTER XXN MS FORBATH

PN290

Are you aware, Mr Coulter, about the - as to the audits that are performed on a monthly basis, random audits that are performed on a monthly basis, on each of the calltakers and despatchers to ensure that they have maintained the level of competency; are you aware of those audits?---Are you talking about ambulance, fire or police? Because there are different arrangements - - -

PN291

I am talking about all of them?---Well, there are different arrangements applying to each, but I am aware of an audit function that is required and conducted by ECV employees for all our call-taking activities. It is not - it is not conducted - - -

PN292

Right, and are those audits conducted on a monthly basis?---I think it is conducted more regularly than a monthly basis; but it is not conducted for all activities, however, you should be aware.

PN293

And are these audits conducted because of a - and the audits and the registration with the international body, and the testing that is required of these people, is that a requirement of your contract with the emergency service operators; that is the ambulance, fire and police services?---My understanding is, no, it is not. We conduct that testing so as to maintain a very high level of service and part of that is to ensure that we know precisely what our employees are doing, how they are conducting their work, and to effect any training or improvement as necessary in that activity.

PN294

Mr Crampton asked you, or took you to some statements made by Senior Deputy President Lacy when he examined the work that was being performed by calltakers in particular, and the advice that they were sometimes required to give to patients or to people making calls to Emergency Communications Victoria. Are you aware, Mr Coulter, that the calltakers are required to be able to provide CPR instruction over the phone?---Calltakers have done that from time to time, yes.

**** PETER RUSSELL COULTER XXN MS FORBATH

PN295

Yes, right. And that they are required often to instruct either patients or people who are with the patients breathing instructions and placement of limbs and other equipment in order to preserve the person's medical condition until an ambulance paramedic, for example, arrives on the scene?---Whether it is often or not is questionable. They are required to do that from time to time.

PN296

From time to time. Thank you?---But I would add that if there is anything more than very basic requirements, very basic first aid, then there is a qualified paramedic, a clinician, who is readily accessible to them within the room.

[1.05pm]

PN297

I have just one other question, and that is, are you able to tell the Commission how many calltakers or despatchers are employed over the whole of the two operations, the Tally Ho operation and the World Trade Centre operation, and what were those figures?---Just being precise for the answer, around 280 at the present time.

PN298

About 280. And are there the same number of despatchers and calltakers?---Not that I - I don't have those figures in front of me, but they are roughly the same number. I don't have those precise figures with me so I can't answer that precisely.

PN299

Right. I put it to you, Mr Coulter, that in ambulance there are, over a 24 hour period, eight despatchers on duty and about 25 calltakers on duty. Are you aware of that?---As I say, I don't have any precise figures with me, but I - the question - - -

PN300

Would that - - -?--- - - - you asked previously though was in relation to the totality of ECV and that is the response I gave. And you have asked me then a question in relation to ambulances specifically - - -

**** PETER RUSSELL COULTER XXN MS FORBATH

PN301

I am asking you - - -?--- - - - and there is a difference between ambulance and overall. Fire, for example, they are all despatchers, as you know.

PN302

That is right. But in ambulance, would you concede that there is in fact many more calltakers than there are despatchers?---There are more calltakers than despatchers, that is correct.

PN303

And would you also agree that there is a mix of full-time, part-time and casual employees?---There are some part-timers and there are some casual employees.

PN304

Which ministry covers Emergency Communications Victoria?---We report to the Department - or within the Department of Justice, to the Minister for Police and Emergency Services.

PN305

It is part of that ministry, is it?---Well, that is the minister whom we are operationally responsible.

PN306

THE COMMISSIONER: Thank you, Ms Forbath. Any further questions. No - yes, Mr Hocking.

PN307

MR HOCKING: If I could ask one question in re-examination, Commissioner.

<RE-EXAMINATION BY MR HOCKING [1.07pm]

PN308

MR HOCKING: Mr Coulter, could I refer you to paragraph 16 of your witness statement. Is the purpose of that statement to determine what industry it is your view that ECV calltaking staff are in?---Yes.

PN309

No further questions.

**** PETER RUSSELL COULTER RXN MR HOCKING

PN310

THE COMMISSIONER: Thank you. Thank you very much for your evidence, Mr Coulter?---Thank you.

PN311

You are released from your oath.

<THE WITNESS WITHDREW [1.08pm]

PN312

THE COMMISSIONER: Are we going to finish it all in 23 minutes. We are?

PN313

MR CRAMPTON: From the unions' side, we are still confident, Commissioner.

PN314

THE COMMISSIONER: All right. Well away you go.

PN315

MR CRAMPTON: Do you want to - - -

PN316

THE COMMISSIONER: Was there an agreement as to who would go first. I naturally assumed that those who were making the claim would - - -

PN317

MS FORBATH: Yes.

PN318

THE COMMISSIONER: Well, I suppose in this case it is questionable as to who is making the claim, but everybody seems to be making a claim. You go ahead then, Mr Hocking, if it is agreed.

PN319

MR HOCKING: I am happy to, Commissioner, I don't think it matters unduly. I mean, if I understand the procedure now, it is the question of your questions - - -

PN320

THE COMMISSIONER: Yes.

PN321

MR HOCKING: - - - to us, which - - -

PN322

THE COMMISSIONER: Do we have those in a written form?

PN323

MR HOCKING: Yes, they have been - I think there is agreement - there is certainly agreement on those questions. There might still be some debate or question in your mind whether that is a comprehensive list of questions but - - -

EXHIBIT #JP1 LIST OF QUESTIONS TO BE ANSWERED BY COMMISSION

PN324

THE COMMISSIONER: Just before you go ahead, something I probably should have asked Mr Coulter, but I will ask you and he might be able to instruct you, it is a matter of arithmetic or mathematics, whichever way you like to describe it, in the cost material effecting the various suggestions or submissions, alternatives, if you like, options, that have been presented for consideration, ECV has provided a detailed breakdown of the costs, including aggregate costs of particular proposals.

PN325

MR HOCKING: You are referring, Commissioner, are you, to the - in submissions in reply?

PN326

THE COMMISSIONER: Due reply, yes, that is right. And ECVs proposal is based on a percentage amount being applied for the purposes of the interim determination. Would it be correct to say that the cost relationship is linear so that if the Commission were to award less than the amount of percentage suggested by ECV, then there would be a linear reduction in costs, and if it were to award more there would be a linear increase.

PN327

MR HOCKING: Commissioner, perhaps if I could answer in this manner, and I hope it fully answers your question. I am instructed that the material contained in the ECV submission in reply, where it costs the various union options and goes on, at paragraph 9, to cost the ECV proposal, which is contained in our initial submissions, they have been done on an equal footing basis, such that one can validly compare one to the other. In other words they are from a common denominator, if you like. So it is valid to compare from one to the other.

PN328

THE COMMISSIONER: Common model of facts.

PN329

MR HOCKING: Yes. In that sense, I suspect you - the answer to your question is yes.

PN330

THE COMMISSIONER: They are comparable.

PN331

MR HOCKING: Yes.

PN332

THE COMMISSIONER: My question is different, and that is, if the Commission were to award, say four-fifths of what is proposed by ECV or 120 per cent, would the cost effects be linear, that is to say, would the cost be four-fifths of what is identified at 120 per cent of what is identified respectively.

PN333

MR HOCKING: Commissioner, I suspect I can't answer that right here and now because it is quite - - -

PN334

THE COMMISSIONER: All right. Well perhaps you might like to take that on notice and file in relation to that matter.

PN335

MR CRAMPTON: Commissioner, if we may take that on notice, yes, because if I could make one other comment then, as you will note in the document attached to the ECV submission where it attempts to look at what the current rate would be disaggregated. I think one of the lessons that can borne out of that document is that it depends upon which particular shift rostering arrangement you are considering as to the total cost effect of a particular proposal. So the issue may be arithmetically a little more complex than a straight - - -

PN336

THE COMMISSIONER: Well, I can only work on the shift rostering arrangement being costed in the material.

PN337

MR HOCKING: Yes. But, Commissioner, I - - -

PN338

THE COMMISSIONER: Which I assume other shift rostering arrangement is currently in operation, or a snapshot of them. Which is it?

PN339

MR HOCKING: I am instructed, Commissioner, that all of the material contained in the submissions in reply is based upon the one roster, so that they are indeed legitimately comparable, one to the other.

PN340

THE COMMISSIONER: Yes. Well is it - when you say one roster, that is a global term, isn't it, because you have identified a number of shifts. Is there a generic roster, or different rosters?

PN341

MR HOCKING: It is a roster which is effectively the same as the one contained in the document attached to our primary submission, Commissioner, that is one that assumes a six to six run so that there is - - -

PN342

THE COMMISSIONER: It is an actual roster?

PN343

MR HOCKING: - - - effectively an even number of night shifts and day shifts over a given roster period.

PN344

THE COMMISSIONER: It is an actual roster currently in operation?

PN345

MR HOCKING: Yes. It is actually a 2002 - - -

PN346

THE COMMISSIONER: But not the only roster currently in operation?

PN347

MR HOCKING: No, it is not.

PN348

THE COMMISSIONER: That leads me to the next question. If the costings were done for any other roster, would the cost to ECV be greater or lesser, or both, depending on the roster?

PN349

MR HOCKING: Commissioner, I am advised that it wouldn't matter insofar as the costings have been done on the basis of the ECV proposition, that the hours falling within the unsociable range would have the penalty rate applied at - - -

PN350

THE COMMISSIONER: Regardless of the roster?

PN351

MR HOCKING: Yes.

PN352

THE COMMISSIONER: So that I could proceed on the assumption that no determination of the Commission, based on say a percentage fixation of the amount suggested, or any other amount, would have some unintended or unforeseen consequence.

PN353

MR HOCKING: I think I could answer, that is probably the case, Commissioner, however, I think it might be prudent if - despite the answers that I have given to you, to the best of the instructions I am able to give at this point in time, we may still take the question on notice, and if there is any difference - - -

PN354

THE COMMISSIONER: Yes, well you can take - - -

PN355

MR HOCKING: - - - we will provide you and the other parties - - -

PN356

THE COMMISSIONER: You can take that question on notice as well, and answer both those questions.

PN357

MR HOCKING: Yes. And if there is any change - - -

PN358

THE COMMISSIONER: Because I don't want to - if I am to take the costing into account, and to look at the models and the calculations that I am presented with, and to reach conclusions based upon those, I want to avoid the possibility that any, hopefully logical reasoning applied to those amounts, could give rise to any unintended consequences if I were to award differently to, at least in percentage terms, the amount suggested by ECV.

PN359

MR HOCKING: Well, Commissioner, on that basis, I might suggest - - -

PN360

THE COMMISSIONER: You take that on notice.

PN361

MR HOCKING: - - - that ECV might do some modelling of some possible outcomes and, if you like, pragmatically ascertain whether the principle holds true.

PN362

THE COMMISSIONER: Yes. It is just a - - -

PN363

MR HOCKING: Which we suspect it does.

PN364

THE COMMISSIONER: It is just a cautionary approach to using costing materials based on rostering arrangements. One needs to know that there isn't some potential unintended consequences, despite the fact that on the material presented the approach might be coherent and logical simply because of the fact that there is some incident that is not being taken into account.

PN365

MR HOCKING: Yes, I think the Commission correctly recognises that shift rosters are intrinsically complex and difficult things.

PN366

THE COMMISSIONER: Yes, and potentially uncertain if you don't have the information arranged in a very precise manner.

PN367

MR HOCKING: Indeed.

PN368

THE COMMISSIONER: Now, the other aspect - and I am not quite sure whether you do this. In the extensive calculations that have been provided which go to costs, the picture of the costs which would arise is limited, is it not?

PN369

MR HOCKING: I beg your pardon, Commissioner?

PN370

THE COMMISSIONER: It is limited, the cost picture is somewhat limited. I mean it is confined to weekly costs, additional costs. It doesn't provide a clear picture of what the total costs of the organisation are; total labour costs, total direct labour costs, total indirect labour costs, total number of ordinary hours worked as opposed to other than ordinary hours worked. Would it be possible for ECV to provide on a confidential basis to the Commission for its consideration a full picture of its cost base?

PN371

Now, when I say a full picture, I don't expect that that picture is going to be detailed in relation to other than labour costs, but the total costs of the organisation would need to be stated; the proportion of total costs which is represented by labour costs would need to be stated. The proportion which is represented by direct labour costs should be stated. The proportion which is represented by indirect labour costs should be stated and the - given the claim of the union that there should be a compounding of the shift payments into the overtime rate, there would need to be some analysis of the number of ordinary hours worked to which any shift payment would apply, and the number of overtime hours that are currently worked by the organisation; and ideally the number of overtime hours that would be affected by the union's proposal.

PN372

MR HOCKING: Commissioner, you have asked a number of questions. If in totality I could characterise them that you want - you would like to avail yourself of a clearer picture of ECVs labour cost situation in broader terms with a number of - - -

PN373

THE COMMISSIONER: In more detailed terms.

PN374

MR HOCKING: - - - a number of details, the answer is yes, that information - - -

PN375

THE COMMISSIONER: And, in particular, the impact of the union's overtime compound claim.

PN376

MR HOCKING: Yes. I am not able to answer how quickly that can be provided and whether it can necessarily be provided in the form you exactly seek, but we will certainly - - -

PN377

THE COMMISSIONER: Well, let us wait and see what you can do.

PN378

MR HOCKING: - - - attempt to provide as much of the material you seek as quickly as possible.

PN379

THE COMMISSIONER: All right. Well, given the time that has been taken up with those questions, I have got a feeling that there will be a fair bit of information coming forward which the unions might like to address in due course. Sorry, and I just wonder whether, under those circumstances, it might be better to complete the oral argument when the information is tabled. Well, it seems to me we are going to have to hear what the story is in relation to the recommendation next week; isn't that right?

PN380

MR HOCKING: Yes.

PN381

THE COMMISSIONER: Well, we should probably hear that and hear the rest of this matter at that time. And hopefully you will produce the information in the meantime. Is that a reasonable time?

PN382

MR HOCKING: Commissioner, if I could advise that there is some uncertainty about how long it might take to collate the material you seek and - - -

PN383

THE COMMISSIONER: Well, I am thinking about the 17th, in the afternoon. I think that should give you ample time, shouldn't it? That is five working days to prepare the information.

PN384

MR COULTER: Sir, I am not available on that - is that the afternoon, is that Thursday, Commissioner?

PN385

THE COMMISSIONER: It is.

PN386

MR COULTER: It is a day on which I am not available, I regret. I am happy to commit the day before if you are available on that day.

PN387

THE COMMISSIONER: No, that day is a bit difficult for me. I have got a hearing that is turning into something running like a television show, in more ways than one; and it is listed for the day before and the day after. Unless we could dispose of this in relatively short time, in the morning of the 16th. I am quite happy to list it for 9.30 on the basis that it would be finished by 11. Well, let us adjourn - if necessary, the questions that have been posed this afternoon could be clarified with - or through my office, Mr Hocking.

PN388

MR HOCKING: Thank you.

PN389

THE COMMISSIONER: And I anticipate you will produce the information by the close of business on the 15th. And we will have the hearing on the morning of the 16th at 9.30. It can't go any later than 11 o'clock. I will have to put back the start of the other matter in order to accommodate this, and hopefully we will understand the fate of the recommendation more broadly at that time. We should be able to complete the hearing at that time. Thank you.

ADJOURNED UNTIL WEDNESDAY 16 APRIL 2003 [1.25pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

PETER RUSSELL COULTER, SWORN PN186
EXAMINATION-IN-CHIEF BY MR HOCKING PN186
EXHIBIT #ECV1 WITNESS STATEMENT OF P.R. COULTER PN199
CROSS-EXAMINATION BY MR CRAMPTON PN201
CROSS-EXAMINATION BY MS FORBATH PN286
RE-EXAMINATION BY MR HOCKING PN308
WITNESS WITHDREW PN312
EXHIBIT #JP1 LIST OF QUESTIONS TO BE ANSWERED BY COMMISSION PN324