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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:(02) 9238-6500 Fax:(02) 9238-6533
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER LARKIN
C2002/6221
STATE RAIL AUTHORITY OF NEW SOUTH WALES
and
AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION
Notification pursuant to section 99 of the Act
of an industrial dispute re alleged refusal to
sell rail tickets at Hurstville Station
C2003/642
AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL
AND SERVICES UNION
and
STATE RAIL AUTHORITY OF NEW SOUTH WALES
Notification pursuant to section 99 of the Act
of an industrial dispute re shift work
C2003/780
AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL
AND SERVICES UNION
and
STATE RAIL AUTHORITY OF NEW SOUTH WALES
Application under section 170LW of the Act
for settlement of dispute (certification of
agreement) re offer of appointment to Sales
Account Team Leader Position, Hurstville Station
SYDNEY
10.17 AM, WEDNESDAY, 29 JANUARY 2003
THE COMMISSIONER: Could I take appearances please?
PN1
MR J. MOON: If the Commission pleases I appear on behalf of the Australian Services Union. With me is MR B. RULE, MR J. MAHER and MR A. THOMAS.
PN2
MR J. CLEMENTS: If it please the Commission I appear on behalf of the Australian Rail, Tram and Bus Industry Union. Appearing with me is MR G. PANIGIRIS, MR S. LANSDOWNE and MR J. ASTILL.
PN3
MR H. SCHMIDT: If it please the Commission I appear on behalf of the State Rail Authority. With me is MR D. HOLDER and I have two witnesses if need be, Ms Koelmeyer and Ms Dubinin who are present in the room.
PN4
THE COMMISSIONER: Thank you, Mr Schmidt. I have called the section 99 files on today because in the last conference up until late last night I had not received an application under section 170LW so hence the listing under the two section 99 files. However, it is my understanding that it is the section 170LW that the parties are going to address this morning and in that regard material has been filed from the ASU, it is a statement of facts document which reported to have had an attachment A to it but I did not have the attachment A with the filed material although my associate has just handed up attachment A to that statement of facts and that's directions issued by Commissioner Raffaelli on 30 September 1999 in relation to a matter before him which I believe the number to be C22671 of 1999, so that material is there.
PN5
I also have from the ASU a statement from Mr Thomas and that statement has a number of attachments to it. The filed copy has all the attachments, a faxed copy is missing attachment 5 and 6 but I will take the filed copy if that material is to be tendered. The next lot of material filed is from the State Rail Authority and there is a number of documents attached to that going up to letter "P" except it appears that I don't have attachment N in the material or it is not marked as attachment N, so you need to be aware of that.
PN6
MR SCHMIDT: There is no attachment N.
PN7
THE COMMISSIONER: There is no attachment N? Thank you. The next piece of material which arrived on my desk this morning was a fax from Mr Thomas, that fax on my perusal of the document was not copied to the parties before me and I've had my associate make a copy of that document and distribute it to the parties this morning and the facsimile from Mr Thomas does not tell me why I have something but Mr Thomas felt moved to send me a bulletin released by the RTBU, possibly Mr Thomas would not be aware but of course the parties at the bar table are quite aware that nothing is forwarded to this Commission that is not copied to the parties.
PN8
So advocates at the bar table might advise their members if I have a matter before me that concerns a specific individual, so there we go. That is the material that is before me, gentlemen and I presume parties will seek to mark that material as the case proceeds. Mr Moon, it is the ASU - on thing, I have not received any submissions from the RTBU, Mr Clements, is that correct, no submissions filed?
PN9
MR CLEMENTS: That's correct, Commissioner.
PN10
THE COMMISSIONER: So the RTBU is not going to have reason to make submissions to me?
PN11
MR CLEMENTS: No written submissions, Commissioner.
PN12
THE COMMISSIONER: Were the other parties aware of that? I mean I realise there was a very tight time frame and we said that, we knew that.
PN13
MR SCHMIDT: Only when we got here. We were made aware of that this morning when we got here.
PN14
THE COMMISSIONER: Do you have a view about that at all?
PN15
MR SCHMIDT: Well, aside from disappointment.
PN16
THE COMMISSIONER: Not the first and won't be the last, Mr Schmidt.
PN17
MR MOON: I would question the involvement of the RTBU at this point in time if they have no submissions to the Commission and I believe this matter should just be dealt with by State Rail and the Australian Services Union given that there is no submissions made by the Rail, Tram and Bus Union.
PN18
THE COMMISSIONER: Mr Clements?
PN19
MR CLEMENTS: Commissioner, I have drafted and I do have submissions, I won't be calling any evidence, I do think it is - I can hand them up, I have made copies for the other parties. As I say I have no evidence to go with those. The RTBU obviously has a stake in this matter and will be looking to make verbal submissions.
PN20
THE COMMISSIONER: So in a sense, Mr Clements, what you are saying to me then is that the RTBU would seek to intervene in the section 170LW matter which I have, bearing in mind it is a party to one of the alleged disputes that came before me in 2002 which is matter 6221 which was called on today?
PN21
MR CLEMENTS: That's correct, Commissioner. I was not sure this morning exactly technically how this would - I can seek leave to appear if you wish, I was not sure because of the fact that our section 99 did form part of the matter - - -
PN22
THE COMMISSIONER: Yes and that is rightly so, Mr Clements, you received a notice from the Commission stating that both section 99s, one lodged by the ASU and one lodged by the RTBU, would be listed for hearing today. You were party conferences which I held with the parties, I think, approximately a week ago and you were aware that the ASU would seek to make application under section 170LW, so all those things were before the parties.
PN23
However, I do point out that in the section 170LW you are not actually a party to that file which has been called on this morning but of course not part of the notice of listing. So I put to you that I would presume you would be seeking leave to intervene on the basis that any decision that may flow from the Commission may affect either directly or indirectly the rights of members of your union who are employed in State Rail.
PN24
MR CLEMENTS: That's correct, Commissioner. I would seek leave to appear then.
PN25
THE COMMISSIONER: I think it's leave to intervene. You don't need to seek leave to appear because you are an official of the RTBU, are you not?
PN26
MR CLEMENTS: Yes, Commissioner. Intervene, I should say, Commissioner.
PN27
THE COMMISSIONER: You are not of the legal persuasion appearing.
PN28
MR CLEMENTS: That's correct, Commissioner. We seek leave to intervene. Obviously we have award coverage and EBA coverage and coverage to the agreement which forms this 170LW matter. We also obviously have members who would be affected by any decision of the Commission today.
PN29
THE COMMISSIONER: And that would be under 43.1 of the Act, Mr Clements. Mr Moon?
PN30
MR MOON: No objections, Commissioner.
PN31
MR SCHMIDT: No objections, Commissioner.
PN32
THE COMMISSIONER: Mr Clements, leave to intervene under section 43.1 is granted.
PN33
MR CLEMENTS: Thank you, Commissioner.
PN34
THE COMMISSIONER: Now the next issue that requires verification I presume, is that Mr Moon, your application under section 170LW is directed to an agreement by the name of State Rail Authority of New South Wales City Rail Stations Job and Work Agreement 1998, certified by Commissioner Raffaelli on 30 September 1998, would that be correct?
PN35
MR MOON: Yes.
PN36
THE COMMISSIONER: Is that agreement being replaced at all, Mr Moon.
PN37
THE COMMISSIONER: Is that agreement being replaced at all, Mr Moon?
PN38
MR MOON: Not that I understand, Commissioner.
PN39
THE COMMISSIONER: So it's still a working agreement so to speak?
PN40
MR MOON: It is. Actually we are trying to make sure it keeps working at the moment through this application, Commissioner.
PN41
THE COMMISSIONER: That's not for me to determine whether it keeps working or not. It's up to the parties whether they replace it or somebody seeks to terminate it. But apart from that, the application that I have before me which the ASU will have to address is the settlement of a dispute over the application of the agreement and you will have to take me to where in that agreement the ASU is seeking that I consider how that particular term of the agreement is to apply. In doing that, you will also have to advise me of what form of determination the ASU seek and I would presume as it was not part of the material filed, I can only presume that the ASU would seek to tender during proceedings - preferably at the beginning - of the determination it seeks in relation to the file or the application that it has made.
PN42
MR MOON: Commissioner, we have endeavoured since last Thursday or Friday to get a copy of the Commission file which was on its way up from Melbourne, for us to have access to - - -
PN43
THE COMMISSIONER: You are talking about the certification file.
PN44
MR MOON: Yes. That's due to arrive in Sydney today. I am placed at a slight disadvantage in that I haven't had access to that file, but - - -
PN45
THE COMMISSIONER: You are saying access to that file to gain material in support of your application - that's what you are saying?
PN46
MR MOON: Certainly, but at this point in time we would still like to proceed.
PN47
THE COMMISSIONER: Do you have a determination that the ASU seeks?
PN48
MR MOON: Only a verbal determination Commissioner, and that determination is that the Commission gives a direction to the State Rail Authority to appoint Mr A Thomas to the position of Station Accounts Team Leader at Hurstville on the grounds that he has been disadvantaged by the application of the job and work redesign agreement which was certified in the Australian Industrial Relations Commission on 21 September 1998.
PN49
THE COMMISSIONER: On the grounds that he has been disadvantaged?
PN50
MR MOON: Yes, in terms of he was removed from shift worker status - - -
PN51
THE COMMISSIONER: No, wait a minute, you are reading out to me the determination, you don't have a hard copy of the determination for me to look at. If you are seeking a determination I want the words that you say that determination should state.
PN52
MR MOON: Commissioner, we seek a direction that the State Rail Authority appoint Mr Anthony Thomas to the position of Sales Accounts Team Leader at Hurstville station and that he attract the roster which includes Sunday work which would rehabilitate his shift worker status from an operative point of view.
PN53
THE COMMISSIONER: Aren't these submissions. I mean what's the determination. What you are seeking is the determination that State Rail appoint Mr Thomas to the position Station Accounts Team Leader at Hurstville station.
PN54
MR MOON: There is nothing more really.
PN55
THE COMMISSIONER: That's what I am thinking. Everything flows from that doesn't it and then your submission to me is - due to the fact of the disadvantage that you say which arose - - -
PN56
MR MOON: He has been disadvantaged financially, which arose as a result of the job and work redesign agreement.
PN57
THE COMMISSIONER: And which particular section of the agreement is the ASU stating - - -
PN58
MR MOON: We would be referring to - and we haven't got a copy of it at this point in time - we would be referring to a statutory declaration made by Mr McKenzie on behalf of the State Rail Authority advising that no employee would be disadvantaged by the agreement.
PN59
THE COMMISSIONER: So what section of the agreement do you wish the Commission to consider in regards to the matter before me, whereas the ASU say, how that provision is to apply and which evidently SRA disagree with you.
PN60
MR MOON: Yes, SRA disagree with me.
PN61
THE COMMISSIONER: Do you have a copy of the 1998 agreement?
PN62
MR MOON: I do have a copy of it. The agreement in terms of no disadvantage to the parties that are bound by it and our members, the only reference was to a statutory declaration made before this Commission when the matter was certified. The subsequent meetings with State Rail after the certification of the agreement which endorsed that statutory declaration whereby the agreement was between the Australian Services Union and the State Rail Authority, that employees of the State Rail Authority would not be disadvantaged in that once a vacancy arises within the classification that employees of State Rail had lost their shift work roster, whereby shift work roster appeared in that classification, they would be allowed to transfer into that position. Now that was an agreement that was further established after certification.
PN63
Commissioner, I just didn't know whether there was any objection by the other parties to the ASU's application under 170LW, because I could go to give you further information in terms of what has transpired. However, I have got no undertaking from the other two parties whether there is an objection to the application under 170LW.
PN64
THE COMMISSIONER: Mr Moon, I will ask Mr Schmidt and Mr Clements that question, but is it the situation that the ASU in a sense is saying to me that the 1998 Agreement does not in its terms provide for a provision that the ASU seek me to clarify or interpret or settle in the matter in dispute. Those terms are included in an unregistered agreement between the parties, is that the situation? I only want clarity, that's all.
PN65
We need to know what we have and my associate put a copy of the agreement on my desk late yesterday afternoon because during the conferences that we had I was not actually aware of the actual agreement or the name of the agreement, that any section 170LW would seek to address and in looking through that agreement and reading your statement of facts and the material filed by State Rail it appeared to me that the terms of agreement that the parties made arose after certification of this agreement and it arose from a dispute following the certification of this agreement in relation to job and work redesign and it's my understanding that dispute was settled by an agreement reached between the parties before the Commission and that may be contained on a file somewhere but it's my understanding that it wasn't a registered agreement in this Commission, it was an agreement in relation to a settlement.
PN66
MR MOON: That's a fair evaluation of it but I would put to the Commission that disputes that have arisen since the certification of the agreement have resulted in directions by the Commission relating to payment and the like which weren't totally incorporated within the agreement. Now, the commitment by the State Rail Authority to this Commission in relation to a statutory declaration that no employee would be disadvantaged I believe gives grounding to make application to the Commission under 170LW that State Rail has failed to abide by the undertakings given to this Commission.
PN67
Now, those undertakings were given at the certification of the agreement that no one be disadvantaged. If there was subsequent meetings which reached agreement which weren't registered before this Commission that relate to that certified agreement then I can address it one of two ways. I can - - -
PN68
THE COMMISSIONER: I think what you're saying to me then is that your application, the ASU application, seeks that the Commission settle a dispute over the application of that agreement, how is that agreement to apply and in doing that you will seek to rely upon material relevant to the certification process of what the parties said the intent of that agreement was. Is that the submission?
PN69
MR MOON: That's succinctly the submission, Commissioner. I also want to advise the Commission that my understanding is that a disputes settlement procedure was established with the parties and was relied upon in relation to the certification of the agreement. The disputes settlement procedure gave the opportunity - and it's actually outlined in State Rail's submissions to the Commission in terms of SRAC which is, if you go to the second green tag it's about 5 pages in from there - and it's headed Disputes Settlement Procedure.
PN70
THE COMMISSIONER: Yes, I've seen it.
PN71
MR MOON: Yes, well Commissioner, if you go to clause 8 of that disputes settlement procedure it gives the opportunity for:
PN72
Any of the parties shall be free to take the course they consider appropriate including referral of the matter to the Australian Industrial Relations Commission for conciliation or arbitration.
PN73
Now, that disputes settlement procedure has left the door open for the Australian Services Union to make a submission to the Commission under 170LW by giving the parties freedom to take that course to seek arbitration.
PN74
THE COMMISSIONER: Where does attachment, the State Rail attachment C come from? It says, Attachment 1 Disputes Settlement Procedure, but it is not - and correct me if I'm wrong - it is not an attachment to the 1998 agreement. The 1998 agreement at clause 5 says:
PN75
Disputes settlement procedure ...(reads)... and the Labor Council of New South Wales.
PN76
And on the Commission's copy of the agreement it doesn't have annexure - well I'll have another look but my copy doesn't have annexure A, it has attachment 1, attachment 2.
PN77
MR SCHMIDT: I might be able to help.
PN78
THE COMMISSIONER: Mr Schmidt?
PN79
MR SCHMIDT: Yes, in respect of SRAC it's fair to say that it is not a direct copy of the annexure as might have been found ordinarily under the Job Work Agreement 1998 as contained in SRA1. But can I say it is a faithful reproduction of the disputes settlement procedure as SRA understands it that was in operation at the time and annexed to the Job Work Agreement and in essence is the disputes settlement procedure that arose out of an agreement between the parties some 20-odd years ago in dealing with a number of issues at the time and has continued afoot without change to this date.
PN80
THE COMMISSIONER: All right. Mr Schmidt, what you're saying to me then is the attachment, SRAC, is the standard State Rail disputes settlement provision contained in all its agreements and what you're saying to me is it should be attached to the agreement, the '98 agreement, that the Commission has before her at the moment.
PN81
MR SCHMIDT: It should be.
PN82
THE COMMISSIONER: It's not.
PN83
MR SCHMIDT: Can I say even on our file of the '98 matter we cannot locate that particular document.
PN84
THE COMMISSIONER: Well, it would have been a requirement for certification.
PN85
MR SCHMIDT: Most certainly, that would be our submission, but our submission - - -
PN86
THE COMMISSIONER: That it would be a clerical error that the material unfortunately became loose and attachment A somehow did not end up on the Commission's copy.
PN87
MR SCHMIDT: It would certainly be an error; I wouldn't apportion that to clerks or anybody else at this point in time. Could I simply say that with the effluxion of time certain documents have sometimes disappeared from files through handing or whatever.
PN88
THE COMMISSIONER: All right. My associate has gone to find the original file. I think what you're saying to me, Mr Schmidt, is that State Rail doesn't doubt that the Commission does have jurisdiction. The parties have vested in the Commission jurisdiction to settle a dispute over the application of the agreement.
PN89
MR SCHMIDT: We would make some submission on that but primarily - - -
PN90
THE COMMISSIONER: Your submission I think would go to the fact that possibly it is not a dispute over the application of the agreement or your submission then would go to me as your draft material file says, that you would seek I dismiss it under section 111.
PN91
MR SCHMIDT: Most certainly.
PN92
THE COMMISSIONER: I don't know that I can do that. I think there's authority for the fact that disputes as such, an industrial dispute as such falling under the provisions of section 170LW is not to be read as the definition of industrial dispute in section 4 of the Act and I think that High Court private arbitration case very plainly points to the fact that it's the parties that give the Commission jurisdiction under their agreement. I don't know that section 111(1)(g)(iv) is open, however if you seek to make submissions in regards to that then I'll hear your submissions but I doubt that it is open.
PN93
I think the only way that a matter of this nature can be dismissed is if the Commission lacks jurisdiction. By that I mean that there is not a dispute over the application of the agreement, or first things first. The disputes settlement provision does not vest in the Commission power.
PN94
MR SCHMIDT: Yes, we would seek to address you on that. I think I might let my friends finish before I make comment.
PN95
MR MOON: Commissioner, I haven't got much more to add. I'll be guided by yourself in terms of where we go from here because I think the other parties need to let us know what their indications are in relation to our application.
PN96
THE COMMISSIONER: I think Mr Schmidt just has.
PN97
MR MOON: But I did want to attempt to ground the jurisdiction in terms of the disputes settlement procedure and at this point in time I have nothing more to add.
PN98
THE COMMISSIONER: But you will be putting submissions to me that you say you'll take me to why I have jurisdiction under the disputes settlement provision which at the moment we're calling up the original file; and (2) that this is a dispute over the application of the agreement in regards to the material that you're going to tender to me as grounds in support of your application.
PN99
MR MOON: Yes, well Commissioner, I'll go to the - - -
PN100
THE COMMISSIONER: You don't have to do it now but I'm just saying that's what you plan to do.
PN101
MR MOON: I will do that.
PN102
THE COMMISSIONER: You will be calling Mr Thomas?
PN103
MR MOON: I certainly will. We've reached an agreement amongst the parties here that - - -
PN104
THE COMMISSIONER: How to proceed?
PN105
MR MOON: Just in terms of witnesses. We have them in the room. Does the Commissioner have any objection to that while the proceedings are - - -
PN106
THE COMMISSIONER: If the parties don't object I don't see why I should object. That's up to the parties really.
PN107
MR MOON: Some Commissioners do.
PN108
THE COMMISSIONER: Well, quite often I wouldn't know whether there were witnesses sitting in the room because while I may have names of who will be called I don't always know the people by sight. All right. Well Mr Moon, you've given me your outline, you've given me the terms of the determination you seek. You've outlined how your case is going to run and a little bit on the material that you're going to raise in support that I have jurisdiction, and also the merits that if jurisdiction is grounded then you will also put before me the merit argument as in to why I should grant the determination in the terms you outline. And of course there's authority as well that the Commission is not bound by the terms of any order or determination a party may seek but as long as the order or determination can be considered to be incidental or on point in regards to what the provision is that is at issue between the parties.
PN109
MR MOON: Thank you.
PN110
THE COMMISSIONER: All right. Mr Schmidt, I think Mr Moon has raised a couple of issues. One of the issues I think in a sense that whether the ASU has opposition to its section 170LW and the whole concept behind section 170LW is that the parties are in dispute about a particular issue but I'll hear you on what Mr Moon has put to me.
PN111
MR SCHMIDT: Can I say that certainly the parties are in dispute in respect of the merits of Mr Thomas' argument or the ASUs argument on behalf of Mr Thomas, however the issue as to the application of the job and work agreement and the matter in particular as it might turn on section 170LW, we would say that we're certainly guided by you on that. We simply indicate that in respect of job and work and the changes that were effected as a result of that agreement which was registered before the Commission, the first comment we make is that the no disadvantage test that my friend relies on is a global test that seeks to ensure that the Commission when confronted by any - - -
PN112
THE COMMISSIONER: Are you giving me submissions now?
PN113
MR SCHMIDT: No, I'm not. What I'm trying to do is lead you into the rationale here and that is because my friend raised it in his opening I think I need to just touch on this.
PN114
THE COMMISSIONER: Well, what Mr Moon raised was that he will be presenting material from the original file in regards to statements or statutory declaration of Mr McKenzie in regards to people won't be disadvantaged.
PN115
MR SCHMIDT: Well, I can withhold that, I'm fine about that.
PN116
THE COMMISSIONER: So what you're saying, and I don't know what's in the original file that Mr Moon will seek to put before me and I don't know whether it goes to the global no disadvantage test for the purposes of the certification or whether it was a specific submission in relation to the purpose of this agreement and what-have-you; I don't know that really.
PN117
MR SCHMIDT: We would say that certainly we need resolution of the matter betwixt the parties. This is a matter in one for or another that has gone on for approximately 6 months. In terms of job and work it is fair to say that SRA looks in the initial sense to the registered agreement. In the absence of anything specific in that agreement it relies on the subsequent agreement between the parties and that is an agreement between SRA, State Rail, and RTBU, and that is I think SRAB.
PN118
THE COMMISSIONER: This is the unregistered agreement?
PN119
MR SCHMIDT: That's the document most certainly and it's headed, Finalisation J&W issues with ASU and PTU. And of course the other thing that we're very mindful of and we're looking at particularly implied jurisdiction if there's no specific reference in the certified agreement.
PN120
THE COMMISSIONER: Can I just ask you, Mr Schmidt, is State Rail disputing or arguing that the Commission does not have jurisdiction under the terms of the disputes settling provision or a dispute over the application of the agreement?
PN121
MR SCHMIDT: We wouldn't be saying that, no.
PN122
THE COMMISSIONER: So State Rail's position is that - and I think this is what you're saying to me - if the Commission is satisfied she has jurisdiction then State Rail is satisfied?
PN123
MR SCHMIDT: Most certainly. We are certainly most mindful of the disputes settling - - -
PN124
THE COMMISSIONER: Because what you're saying to me is, Commissioner, we have had this dispute around for six months, we want a resolution to it.
PN125
MR SCHMIDT: You have it in one, Commissioner. I mean in the alternative if one takes the view that any agreement between the parties that is not registered it can't be determined by this Commission then the question that the parties have to face is how do you resolve it? We have to have some certainty and we would certainly say to you that we have the job and work agreement, we have the subsequent agreement, we might quibble about the consequential nature with the ASU, and we would say that it was certainly struck and presented to the Commission as we understand it in a matter that was in dispute between parties and that I think was the matter of customer service management if I understand the term correctly and we certainly presented in those proceedings was part of the process to actually settle that matter. And then of course one goes to the actual operations of the disputes settlement procedure and what was in essence in the minds of the parties when they framed the disputes settlement procedure, and that is in the preamble any grievance, dispute, or anything that might be in dispute shall in the first instance be raised and dealt with according to a whole range of steps with the final step being of course reference to the Commission.
PN126
So it was clear in those days - and this is 20 years ago - that the final umpire if I might use the term would be this Commission or its successor. And how can I say it, I was part of the group that drafted this and negotiated the disputes settlement procedure and it's certainly one that I don't think is at odds with what might fall from the other side of the table. So that's in essence what the State Rail Authority relies on. We might quibble with the nuances but ultimately there has to be a resolution, we say. We look to the disputes settlement procedure, its prescriptions, and we look to the primary agreement that is certainly certified, subject to anything that might be revealed in the file of that particular matter and the subsequent agreement that was made between the parties and placed before the Commission in settlement proceedings of a dispute. That is not to say of course that that particular agreement was registered.
PN127
I shudder to think that if the Commission were to find that it had no jurisdiction the only way one could find that it had no jurisdiction the only way one would confine jurisdiction was that every agreement registered between the parties that we might reach, I think we would need to book this Commission every day, seven days a week.
PN128
THE COMMISSIONER: I thought you did, Mr Smith. Well, there's options in regard to varying the agreement, to be honest with you. That's always open to parties.
PN129
MR SCHMIDT: Of course we would simply in terms of the conduct of the proceedings today rely obviously on our submissions, contest what the ASU might say on behalf of Mr Thomas and seek to have the matter dismissed. I take your point, Commissioner, about our application as contained in our file documents.
PN130
THE COMMISSIONER: All right. So what you are saying is you rely upon, and I have not marked this material yet which we will do in a moment. You are seeking to rely upon your written submissions and the material filed with that. What do you say in regards to - so your position, the ASU are seeking the determination in the same or similar terms, I suppose, as Mr Moon outlined in his opening address. State Rail's position is, and correct me if I am wrong, that as a matter of merit, not jurisdiction but as a matter of merit I should not grant the determination as sought and that I should allow State Rail to continue on its process that it had commenced as outlined in its written submissions.
PN131
MR SCHMIDT: Most certainly. We would certainly explain the number of the issues that transpired in the meantime, such as the investigations State Rail has undertaken on behalf of or as a result of requests by the other side and my friend might have some problems with some of those, those points that we would raise. Can I say that that is not by design of State Rail. We received advice that discussions between Mr Thomas did not transpire with Ms Koelmeyer but transpired with somebody else so there's a procedural issue about arranging people to depose , to interview and that sort of thing.
PN132
THE COMMISSIONER: But these are issues that you are going, that will be addresses when the witnesses are called.
PN133
MR SCHMIDT: Yes, most certainly.
PN134
THE COMMISSIONER: You still maintain your submission that I should dismiss under 111(1)(g) placitum 4?
PN135
MR SCHMIDT: No, I think we've said that we take your guidance on that.
PN136
THE COMMISSIONER: Mr Schmidt, could I ask you to take on board point 38 of your submissions and as we progress at any point you can advice me whether State Rail withdraws paragraph 35 of its written submissions.
PN137
MR SCHMIDT: Yes, I appreciate that.
PN138
THE COMMISSIONER: Would you let me know that because if I don't have to address it I'd rather not.
PN139
MR SCHMIDT: Most certainly.
PN140
THE COMMISSIONER: Just before I hear you, Mr Clements, my associate has given me the original certification file which is matter C.24753 of 1998. ASU called for that material. It's open for inspection by all parties and if they seek to tender any of this material then they are going to have to provide me with copies but we can have an adjournment later on for the purpose of viewing files or copying files. It would have been a little bit better if we had done this earlier but never mind, that's the way it is.
PN141
I think, and I will put this to the parties and they can address me on it or tell me whether they agree with me or disagree: I can only presume and I only presume that this particular 98 agreement was certified and the clause in the agreement referring to the disputes settling provision is calling up an original dispute settling provision in a 91 agreement as amended over the years - 81, I stand corrected by my associate, not 91 but 81 agreement.
PN142
What impact that might have on the validity of the certification process I am unsure but I'm not even going to go there but I think that's what the position is and, again, ASU say to me you have jurisdiction under the disputes settling provision. State Rail say you have jurisdiction unless you are satisfied you don't have jurisdiction, so it just remains for the parties to have a look at that and to consider whether there is an issue on that and they can let me know. Mr Clements.
PN143
MR CLEMENTS: Commissioner, the RTBU in relation to the question of jurisdiction, we have no objection to any jurisdiction under 170LW for the Commission to determine this matter except to say, obviously, that we would submit that under 170LW it is the terms of the agreement, the application of the terms of the actual certified agreement which would determine this matter.
PN144
THE COMMISSIONER: Can I step you back a minute. The ASU is not placing before me a jurisdictional argument.
PN145
MR CLEMENTS: The question was asked, Commissioner, of the other two parties and I felt for the record that we should put our submissions.
PN146
THE COMMISSIONER: All right, jurisdiction. Is it the RTB position that the disputes settling provision wherever it is vests in the Commission jurisdiction to arbitrate?
PN147
MR CLEMENTS: We have no reason to believe that that's not true, Commissioner. Obviously the 1981 disputes settlement procedure not being here the RTBU can't say with 100 percent certainty, except to say that in my experience the disputes settlement procedure which is presented before the Commission today, as attachment C to the SRA documents, is quite close to all other disputes settlement procedures.
PN148
THE COMMISSIONER: Well, does it vest in the Commission jurisdiction?
PN149
MR CLEMENTS: Yes, well, Clause 8 seems to vest in the Commission jurisdiction - - -
PN150
THE COMMISSIONER: It seems to or does it?
PN151
MR CLEMENTS: Yes, within the Commission's jurisdiction. Clause 8 does vest this Commission, we would argue, with an open ended jurisdiction to determine any disputes within the Commission's jurisdiction so, obviously - - -
PN152
THE COMMISSIONER: Well, it's got to be within section 170LW, dispute over the application of the agreement.
PN153
MR CLEMENTS: That's correct.
PN154
THE COMMISSIONER: So that's the next jurisdictional argument. The first one is, RTBU is not arguing jurisdiction does not exist under the disputes settling provision. What about a dispute over the operation of the agreement?
PN155
MR CLEMENTS: Again, we would agree and we did agree when meeting with other two parties that this matter could be determined under 170LW.
PN156
THE COMMISSIONER: So you agree it's a dispute over the application of the agreement
PN157
MR CLEMENTS: Exactly.
PN158
THE COMMISSIONER: Okay and then I think that brings us to the merit argument.
PN159
MR CLEMENTS: Exactly, to the point that obviously it's up to the Commission to determine today on the matter of whether or not there is anything in the agreement which would warrant the directions or orders which Mr Moon is seeking and obviously that's a matter for submissions.
PN160
THE COMMISSIONER: Which you will be placing.
PN161
MR CLEMENTS: that's correct.
PN162
THE COMMISSIONER: That's good, Mr Clements. So what you are saying to me is the RTBU will not raise the jurisdictional argument and you would like to make submissions on the merit of whether I should grant the determination placed before me by the ASU.
PN163
MR CLEMENTS: That's correct.
PN164
THE COMMISSIONER: And also what you think I should do in regard to the matter.
PN165
THE COMMISSIONER: That's correct.
PN166
THE COMMISSIONER: Good. Anything else, Mr Clements.
PN167
MR CLEMENTS: Only that the written submissions that I alluded to earlier, I can hand them up now if you would like.
PN168
THE COMMISSIONER: is it handwritten or typed
PN169
MR CLEMENTS: No, it's typed and there are copies made. There is only one attachment to it which is the redundancy and redeployment policy which may not become relevant in the matter but I thought just in case I would attach that, so I can hand these up now if it pleases the Commission.
PN170
THE COMMISSIONER: Do I have any objection to that course of action?
PN171
MR SCHMIDT: Not from State Rail.
PN172
MR MOON: No, Commissioner.
PN173
THE COMMISSIONER: All right because what we will do, gentlemen, is that you need to have a look at that file. I think you've outlined where we are going to. I will mark your material that has been filed and also which has been handed up and then I think we might adjourn for 15 minutes. I think 15 minutes should be enough, before we start calling evidence and running with the case. I'm sorry, Mr Clements, had you finished?
PN174
MR CLEMENTS: Yes, Commissioner.
PN175
THE COMMISSIONER: Thank you for those submissions, Mr Clements.
PN176
MR MOON: Commissioner, we are not going to get through this today I don't believe. I think there are some time restrictions on people today, and I'm cognisant of that. Given that's the case I would like to seek an adjournment of the matter to another day at the first opportunity to have a look at the Commission's file and to be in a better position to make submissions on the merits of the case. Otherwise, I believe, if we adjourn for 15 minutes, Commissioner, I don't think we are going to achieve as much as we could achieve if we were given an opportunity to view the files and also consider the submissions of the TRBU. I would like to take those into consideration to deal with and that's why I would be looking at an adjournment to another date.
PN177
THE COMMISSIONER: Mr Moon I will ask the position of the other parties - - -
PN178
MR MOON: I feel a bit rushed in terms of getting through this today and I don't think it's going to occur.
PN179
THE COMMISSIONER: Well I think we agreed in conference that the parties required an answer reasonably quickly and hence, yes, we all knew it was a very tight time frame and I think that's acknowledged. I will ask the other parties their position, and at the end of the day it's for me to make a ruling whether I do or I don't. But I am conscious of the fact that we have people here ready to give evidence and even if there may be an objection to your application, but even if there isn't an objection, then I would like to hear the parties, whether if they do agree to adjourn, what their position is in regards to at least having the witnesses give their witness and be subject to cross-examination. I hate to waste time.
PN180
MR MOON: That's fine. I actually have no problem with that.
PN181
THE COMMISSIONER: So your position is that you would like to have the evidence presented and subject to cross-examination and that closing submissions be listed for another day?
PN182
MR MOON: That would be terrific.
PN183
THE COMMISSIONER: Well, you haven't got it yet, Mr Moon, whether it's terrific or not, and that would be for the purposes of next week I would envisage.
PN184
MR MOON: Sure, as soon as possible.
PN185
THE COMMISSIONER: Mr Schmidt, do you have a view?
PN186
MR SCHMIDT: Well it's somewhat unexpected I might say, but as far as we are concerned, if the proceedings today need to be extended then we accept that. However, at this present time - - -
PN187
THE COMMISSIONER: You aren't objecting you are saying?
PN188
MR SCHMIDT: We might in terms of a 15 minute adjournment that then extends to next week. We say we should use the time of this Commission as allotted today to its fullest. Certainly depose the witnesses, certainly get rid of those and take the parties through as much of the material as we have so as not to waste the time of any of the parties. If the experience today requires that we need to adjourn to another day, then so be it, but from State Rail's point of view, nothing that we have seen so far suggests that we need much more than a short adjournment to peruse the file. In other words, I think we should get rid of this matter as soon as we can rather than prolong the agonies.
PN189
THE COMMISSIONER: Mr Clements, would you like to tell me your position?
PN190
MR CLEMENTS: Commissioner, the RTBU objections to this application for an adjournment, not the 15 minutes adjournment, but the adjournment to another day in the strongest terms. As has been outlined by the RTBU all along in this process, we have members who have been interviewed and are waiting to find out the outcome of that interview and they have already been disadvantaged by this process and to extend it again for no other reason than Mr Moon from the ASU wishes to revisit their case, would be unfair to the RTBU's members. I think we are in a position to finish today. There aren't a great deal of witnesses to be called and Mr Moon put in this application, he had the time in which to research it and make his case and I would submit that in these circumstances if the matter can be finished today, that it should be, Commissioner.
PN191
THE COMMISSIONER: Yes. Mr Moon?
PN192
MR MOON: Commissioner, we are happy to continue with the time set down for this hearing.
PN193
THE COMMISSIONER: So you withdraw your application to adjourn.
PN194
MR MOON: I just make the point that the Rail Train and Bus Union hadn't supplied submissions to the other parties until they were here today and then after the proceedings commenced. We haven't had an opportunity to view their submissions. We haven't objected to them, but we would like the opportunity to view those, and that needs to be taken into consideration. An attempt was made to get the Commission's file last week. However, the Registrar couldn't supply that file until today and that can be verified and we have been placed at a disadvantage from that point of view. I don't intend to withdraw my application at this point in time. I am seeking the adjournment.
PN195
THE COMMISSIONER: So you still seek an adjournment?
PN196
MR MOON: I still seek it.
PN197
THE COMMISSIONER: Mr Moon, it is my decision we will run today. We may not finish. My understanding is that there are three witnesses to be called, and with one and I can stand corrected, but I think only one, has filed a statement, so we will require evidence in-chief I would presume, and cross-examination. I will adjourn for 20 minutes because there are two parties and an intervener at the bar table who I would presume would be interested in viewing the original certification file and that will require time and if there is anything that arises on that file, then parties will have to seek to make copies for the other parties as well as the Commission.
PN198
I think we will run with the matter. I have commitments, I cannot run past - and I don't know about anybody else - but the Commission cannot run past 2.30, so my time is very limited and we need to make the most of our day. So if we don't finish we will have to look for a date next week and I think that date might be Monday afternoon for closing submissions, but I will have to check my diary in that regard. So that's how we are going to go.
PN199
PN200
PN201
PN202
As I said Mr Thomas's statement can be addressed when he is called to give his evidence. There is only one other document that I alluded to this morning and that is the material forwarded by Mr Thomas. What is the parties' position on that material. Is it before me, does anyone seek to rely upon it. I've read the bulletin but I don't know - - -
PN203
MR MOON: Commissioner, I wasn't aware of it, but we won't be relying on it.
PN204
THE COMMISSIONER: Anyone relying upon it at all?
PN205
MR CLEMENTS: We haven't seen the document in question, Commissioner.
PN206
THE COMMISSIONER: Mr Clements, it's a bulletin by Mr Lewocki, 23 January. To be quite honest, gentlemen, the only thing that is relevant in a sense and I don't know that it is relevant to this particular file but it might be relevant to one of the section 99s because the second page talks about the parties' agreement in regards to the registry of people flowing from the job and work agreement.
PN207
MR CLEMENTS: I don't see the relevance of it, Commissioner.
PN208
THE COMMISSIONER: Should I give it back to Mr Thomas?
PN209
MR CLEMENTS: Yes, Commission.
PN210
THE COMMISSIONER: Very well. So I take it, gentlemen, it is not before me. If there is nothing further we will adjourn until 11.45am.
SHORT ADJOURNMENT [11.20am]
RESUMES [11.50am]
PN211
THE COMMISSIONER: Now, the parties have viewed what I call the certification file?
PN212
MR MOON: Yes, Commissioner.
PN213
THE COMMISSIONER: Have they taken the relevant copies from it?
PN214
MR MOON: We are endeavouring to do that just at the moment.
PN215
THE COMMISSIONER: Very well, because I will take the file back when you finish. Whenever you are ready, Mr Moon, let us commence.
PN216
MR MOON: Are we still on jurisdictional argument, Commissioner, or have we moved on?
PN217
THE COMMISSIONER: I was under the view that the parties would be calling their evidence, be that witness evidence, documentation, what have you, for tender and then once all that evidence was in the parties would be giving me their submissions, be that on jurisdiction - I mean, we have outlined a little bit about jurisdiction but I still think the ASU need to satisfy me that I have jurisdiction but I mean we have outlined it in what I would call, I suppose, opening submissions and I presume we are now hearing the evidence.
PN218
MR MOON: Very well, could I just have one moment? Commissioner, I have been through that certified agreement file and there is reference to the dispute settlement procedure in there and I might add that the Commission had certified the agreement that it had met the requirements under the Act and in terms of - and I pick up from what my friend, Mr Schmidt from State Rail Authority said, that certified agreements come before this Commission and they meet the requirements of the Act then those certified agreements have to be applied within the workplace.
PN219
Now, what happened was this certified agreement resulted in a number of meetings between the Australian Services Union and State Rail as to how the certified agreement should apply. I do take on board the opportunity for parties to have the option to vary the certified agreements before this Commission. However, that is not often done, it does not often occur but I submit to the Commission that following the certification of the job and work redesign agreement parties went away and endeavoured to apply the agreement.
PN220
Also, I am just at the moment endeavouring to get a copy of the statutory declaration made by Mr Mackenzie for the State Rail Authority when the agreement was put before the Commission to be certified and in that statutory declaration there was reference to the requirements of meeting the Workplace Relations Act and reference was made to section 170LN whereby there was an ability for the parties to further settle or prevent industrial disputes. There is reference made to the no disadvantage test and in fact Mr Mackenzie stated that employees would not be disadvantaged.
PN221
So this resulted in agreements whereby employees who were rostered to work at a normal course of daily employment in terms of shift work status, where they attracted shift work states, some of these people were taken off shift work rosters. State Rail, in agreement with the union, maintained their status as shift workers, those employees and an undertaking was given that when a vacancy arises of the same classification and at the same location the employee would be placed in that vacancy. If there were two employees in the same circumstance or predicament the employee who lived closer to the location would have the first opportunity to be placed in that position.
PN222
THE COMMISSIONER: But that's part of the certified agreement, Mr Moon, is it not? That's the agreed translation rules.
PN223
MR MOON: That is correct. My understanding is that following upon that agreement there was further discussions between the parties which resulted in an understanding in terms of application of the certified agreement that where employees were removed from the shift work roster but a vacancy arose elsewhere other than a location in which they were employed they would be given the opportunity to be placed in a position of like to their classification to enable them to fall back onto a roster which attracted shift work.
PN224
Even at this time the State Rail Authority and the Australian Services Union are negotiating to complete the application of the agreement whereby parties will have a register of employees who have been affected by the agreement or disadvantaged, one would say, by the agreement and will be given the opportunity to be placed in their classification when vacancies arise throughout City Rail which attract shiftwork.
PN225
So what we put to the Commission is this, is that there is still ongoing application of the certified agreement. Now what we would say to you, Commissioner, is that State Rail aren't abiding by the understandings and the application of the certified agreement in that an employee by the name of Mr Anthony Thomas who is presently engaged at Martin Place as a sales account team leader and I just to assist the Commission, a sales accounts team leader supervises booking staff, office staff, and also supervises the accounts within that location.
PN226
Now, when the job and work redesign agreement was applied Mr Thomas was removed from a roster that included Sunday work. Now that saw him lose a shift worker roster. With that he was advised that he would be given the opportunity to apply for other positions within the Authority if they became available of his own classification, and they attracted shiftworker rosters.
PN227
Commissioner, I intend to refer to our statement of facts and you mark that ASU1 and it says:
PN228
State Rail and the Australian Services Union entered into an agreement ...(reads)... on 21 September, 1998.
PN229
Included in that agreement was reference to disputes settlement procedure. The Commission is required to ensure that a disputes settlement procedure is in operation within the agreement. Commissioner Raffaelli saw it that way and certified the said agreement. Now, when I look at the file I don't see a disputes settlement procedure, however reference is made to the disputes settlement procedure in the statutory declaration of Mr McKenzie.
PN230
Part 6 of that statutory declaration - do you have a copy of that?
PN231
THE COMMISSIONER: No, because the parties have the file.
PN232
MR MOON: I would like to supply a copy to the Commission as an exhibit.
PN233
PN234
MR MOON: There is reference to identifying the industrial disputes settlement, further settlement, maintenance of settlement prevention and they refer to 170LN. There has been, just to assist the Commission, well before it was a requirement to have disputes settlement procedures as per the Act State Rail had implemented industrial relations disputes settlement procedure within its business operations and agreements between the ASU and at that time the Australian Transport Officers Federation and the State Rail Authority resulted in a disputes settlement procedure that was agreed upon in 1981. That agreement has been operating for quite some time and it's probably due to be reviewed again, however reference or reliance on that disputes settlement procedure has been given by State Rail and the Australian Services Union when certifying agreements before this Commission.
PN235
Commissioner, if you were to go to State Rail - and I have addressed this to some point - SRAC, which is the first yellow tag within the submission.
PN236
THE COMMISSIONER: The third green tag in my case, yours is yellow.
PN237
MR MOON: Reliances, it was made upon that disputes settlement procedure for the certification of the agreement and that's why we've come before you under section 170LW in terms of clause 8 of that agreement and where it says:
PN238
Should a dispute still remain ...(reads)... for conciliation or arbitration.
PN239
Now, I believe that gives grounding in terms of jurisdictional argument in terms of 170LW whereby the party is free to seek arbitration before this Commission.
PN240
In terms of - and I don't intend to go any further in terms of jurisdictional point at this point in time.
PN241
THE COMMISSIONER: That's only part of the jurisdictional point; the next one is dispute over the application of the agreement.
PN242
MR MOON: In terms of the actual dispute?
PN243
THE COMMISSIONER: Yes, whether it's a dispute over the application of the agreement.
PN244
MR MOON: Okay then. Well, the Australian Services - - -
PN245
THE COMMISSIONER: I was just going to say is that what you were addressing earlier about the parties reaching agreement after the certification process?
PN246
MR MOON: Applying it - - -
PN247
THE COMMISSIONER: Do I have that agreement before me, and I think we acknowledged it's not the agreement, the 1998 agreement was not varied at all.
PN248
MR MOON: No.
PN249
THE COMMISSIONER: It was, one could argue, a private agreement between the parties. Do I have a copy of that?
PN250
MR MOON: You were given a copy during conciliation.
PN251
MR SCHMIDT: SRAB, the second tag.
PN252
THE COMMISSIONER: Yes, we raised that earlier.
PN253
MR MOON: SRAB is a good example of the application of the certified agreement where there is updating of applying or implementing that agreement and if you see on the top of SRAB it says:
PN254
Agreed list of issues post implementation November 1998.
PN255
THE COMMISSIONER: This is agreed by all parties to the agreement?
PN256
MR MOON: Yes, Commissioner.
PN257
THE COMMISSIONER: But not voted on in accordance with the Act for a variation of an agreement. Not voted on by employees?
PN258
MR MOON: No, it was only because it was seen - I understand that those who voted were kept informed of what was being discussed through circulars and letters. I also advise the Commission that one would have to question whether we would have to vary that agreement and really it's merely an attempt to apply the agreement.
PN259
THE COMMISSIONER: What you are saying is that SRA1 at tab B - - -
PN260
MR MOON: Is merely an application of the certified agreement.
PN261
THE COMMISSIONER: SRA1 attachment B is the parties' intention in regards to how the agreement applies - that's what you are saying to me?
PN262
MR MOON: Yes, Commissioner. The implementation of it. Now, if we go to SRA(B) where it says - it's numbered 1, 2, 3. Do you see that 3 there?
PN263
THE COMMISSIONER: Change of status of shift workers?
PN264
MR MOON: Yes. An issue that was raised by the Australian Services Union at the time and it's deemed to have been resolved, is that:
PN265
City Rail's Manager Human Resources has established and will maintain a register of staff no longer working shift ...(reads)... The employee working closest to the position will be given first option.
PN266
Some registers were kept by State Rail, but one would say that a complete register doesn't appear to have been kept. I put to the Commission that that's not the fault of an employee who has voted on this certified agreement and has participated in its application and I say to you that Mr Thomas has participated in its application. I also say that Mr Thomas is a person who was removed from his shift work roster. He was maintained in terms of shift work status, and a position became available that he could take up in at Hurstville. I might add that he was working at Martin Place, where he lost the Sunday shift.
PN267
A position of Station Accounts Team Leader became available at Hurstville station which included the Sunday shift which would give him back a roster of shift worker status. What State Rail did, was it failed to apply the application of the agreement in that it advertised that position out. A vacancy arose at Hurstville station for Sales Accounts Team Leader and was advertised on 11 July 2002. If the Commission goes to attachment 2 of the ASU's submission - - -
PN268
THE COMMISSIONER: ASU1?
PN269
MR MOON: Yes.
PN270
THE COMMISSIONER: Well I've only got attachment A.
PN271
MR MOON: Included in the submission was an affidavit from Mr Thomas - - -
PN272
THE COMMISSIONER: Well that's not before me yet, because isn't Mr Thomas going to swear - - -
PN273
MR MOON: He is, but I'd like to refer to - look, I will leave that in abeyance will deal with that when I exam Mr Thomas in terms of that advertisement.
PN274
So what happened was, the position was advertised on 11 July 2002 - Mr Thomas advises that he contacted a Mr Francis. Then an offer was made by State Rail to Mr Thomas for the position at Hurstville. He accepted the offer, but State Rail then at a later date advertised the position out and called people for interviews. We believe that the merits of the case is that the dispute arises in that State Rail has railed to commit to its agreement in terms of the application of the certified agreement in that Mr Thomas who was disadvantaged by job and work redesign in the first instance and was to be not disadvantaged by that agreement as per the undertakings given by State Rail when it was certified and by further agreement between State Rail and Australian Services Union resulting in a vacancy whereby Mr Thomas could reassert his shift worker status in operation by roster and be placed in a position at Hurstville which would achieve that.
PN275
They still failed to abide by those undertakings and I don't believe I need to go back to SRA(B) to reassert those undertakings, but that's why we are here, Commissioner. To ensure State Rail abides by its agreements and its commitments to those people who voted for the certified agreement and to this Commission who they gave a statutory declaration that no employee would be disadvantaged.
PN276
THE COMMISSIONER: So what you are saying, Mr Moon, and correct me if I'm wrong, that SRA1 at tab B point 3, the second and third dot point, applies to Mr Thomas?
PN277
MR MOON: That was the intention.
PN278
THE COMMISSIONER: And you say SRA do not believe it does apply to Mr Thomas?
PN279
MR MOON: Are refusing to apply it to Mr Thomas.
PN280
THE COMMISSIONER: Is that not the same as it doesn't apply to him?
PN281
MR MOON: I don't know about that, because I think that they have been approached by another union - - -
PN282
THE COMMISSIONER: You see the point is that what I've got is, is it a dispute over the application of the agreement.
PN283
MR MOON: Yes.
PN284
THE COMMISSIONER: Now, it's fine for the parties to say, well Commissioner, we have a problem. We say you've got jurisdiction and as long as you are happy you've got jurisdiction. I cannot operate outside of jurisdiction regardless of whether the parties want me to or not. I don't have power to operate outside jurisdiction, so yes, I think what is being said to me is, well, we won't argue that you've got jurisdiction. We will argue merit - we've got a problem - we want to argue merit. So it's for me to determine whether this is whether the dispute settlement provision that you've referred to vests in the Commission's power to settle through arbitration and whether the matter before me is a dispute over the application of the agreement.
PN285
Hence, in listening to you I say to you, Mr Moon, in looking at SRA1 attachment B point 3 second and third dot point, are you saying to me that notwithstanding the fact that we no it's not contained in the agreement, your submission is, this is the intent behind the agreement and relevant for you to have regard to. We say, that applies to Mr Thomas. So the application of that particular document which the ASU say should be read in conjunction with the agreement hence you have power to settle the matter - that point 3 second and third dot point applies to Mr Thomas.
PN286
MR MOON: It does.
PN287
THE COMMISSIONER: My question to you is, are you saying to me State Rail is saying, no it doesn't apply. So hence, is that the submission to me that this is a dispute over the application of the agreement.
PN288
MR MOON: Yes, it is, and it is. If the State Rail is not - - -
PN289
THE COMMISSIONER: How the agreement applies, who it is to apply to and when it's applied over the application of the agreement. Notwithstanding the argument that we acknowledge that's not part of the certified agreement, but your submission is, that is the intent which you are saying to me, we seek that you import that into the agreement.
PN290
MR MOON: Well if you go to the top of SRA(B), J & W issues with ASU and PTU.
PN291
That refers to finalisation of Job and Work issues with the Australian Services Union and at the time the Public Transport Union. It goes on and the heading says:
PN292
Agreed list of issues post implementation November 1998.
PN293
and the status if 17 July 2000 and if you go to point 3:
PN294
In terms of the final position - - -
PN295
it says "resolved". Now that's State Rail's document. It says "resolved" which is that that will apply, that's the agreement, that's the application of the implementation of Job and Work Redesign. So once we have that we then have to determine does Mr Thomas fall within that implementation document and I put to you that he does because he was disadvantaged through Job and Work Redesign when he lost his Sunday roster. The opportunity arose whereby a position of likeness arose at Hurstville and he made it known to State Rail that he was interested in that position, he should be given the opportunity to be placed in that position under the application of the certified agreement.
PN296
As to why State Rail will not place him in that position is really a matter for them to raise with this Commission. I am putting to you that the facts are there of an agreement in terms of resolved agreement that Mr Thomas should be placed in there; they won't place him in that position.
PN297
State Rail acknowledge that Mr Thomas has been disadvantaged through job and work redesign, they acknowledge that he is entitled to be offered other positions. They have in fact offered him the position at Hurstville and did not go ahead and fill that position, did not place him in that. They offered him other positions within State Rail but they are lower graded positions. I might add so that you have an understanding of the other positions he was being offered, Duty Manager - - -
PN298
THE COMMISSIONER: Can this not come in through Mr Thomas's evidence? It is submissions from the bar table. You are just going through which I presume is contained in Mr Thomas's affidavit. I don't want to waste time, gentlemen.
PN299
MR MOON: I agree. Thank you, Commissioner. So we submit that State Rail has failed to enforce the agreement and for that reason we have filed the section 170LW to settle the dispute and that is our submission. I would like to call Mr Thomas to give evidence in relation to this matter.
PN300
THE COMMISSIONER: Yes, and any other material upon which you seek to rely, Mr Moon, you will bring in through Mr Thomas or at the end of Mr Thomas's evidence, cross-examination, re-examination you will then tender other material that you seek to rely upon?
PN301
PN302
MR MOON: You have advised the Commissioner of your full name and where you reside. You have filled out an affidavit for the Commission, do you have a copy of that?---Yes, I do.
PN303
You state in November 1998 Job and Work Redesign was implemented:
PN304
My roster was changed from Monday to Sunday to Monday to Saturday. Through this change I was disadvantaged.
PN305
Would you tell the Commission how you have been disadvantaged?---My roster from January 93 - I presume you have a copy of the affidavit, it is attachment 1?
PN306
THE COMMISSIONER: Could I just take you back a moment, Mr Moon? Are you going to get Mr Thomas to swear that this is his evidence before me and then seek to - if you wish him to amend or change something that might be different - another thing, apologies for interrupting but another thing is that in the evidence in chief Mr Thomas is just going to elaborate on specific points, we are not going through the whole affidavit?
PN307
MR MOON: No. Do you swear that that was your statement, affidavit?---Yes, I do swear that's my statement.
PN308
Is there anything you want to change in there?---Only there's a mistake in it that I've worked out here since I printed it. Point 5 says "approximately 1 October I faxed Mr Greenhalgh". I've attached the wrong e-mail. I've attached one that I submitted to him on the 30 and - - -
PN309
Right, I have copies of the altered attachment?---They are both relevant, both very similar.
**** ANTHONY MARK THOMAS XN MR MOON
PN310
THE COMMISSIONER: How do we want to handle this?
PN311
MR MOON: Do you wish to withdraw the reference to attachment 5, is that correct?---You can either withdraw it or use both, they're very similar as I said, it's just - - -
PN312
Well, we would like to append it to the attachment 5 if we can. What it is, Commissioner - - -
PN313
THE COMMISSIONER: May I make a suggestion? Mr Thomas, your statement is referring to correspondence on 1 October 2002 which you call attachment 5?---That's right.
PN314
Attachment 5 should reflect the document you are referring to. Now, you have a copy of that document? Could I suggest that as it is Mr Thomas's statement that we remove the filed attachment 5 and you give me a correct copy of attachment 5? Now, Mr Moon, if you seek to tender the attachment 5 filed with the material but not as attachment 5 then you may seek to do that through the witness. Is there any objection to that course of action from anyone? No, good. Silence is golden.
PN315
MR MOON: So Mr Thomas, you would like to withdraw that attachment 5 which was filed with the Commission, is that correct?---That's right.
PN316
And you would like to now put before the Commission a new attachment 5 dated October 1, 2002?---That's correct.
PN317
It is a mail message, is it?---It's an e-mailed message to Mr Greenhalgh.
PN318
From?---From myself regarding the position at Hurstville.
**** ANTHONY MARK THOMAS XN MR MOON
PN319
Do you have a copy of that?---Yes, I do.
PN320
So you worked on a Sunday roster from 1993 up until - - - ?---Up until the implementation of Work and Job in 98.
PN321
As a result of Job and Work Redesign you lost that Sunday shift?---I used to work every second Sunday on my roster and I don't work any Sundays on my roster now.
PN322
Was there a financial disadvantage to you as a result of that?---Every four weeks I lose approximately 12 hours shift penalty.
PN323
Which equates to how much financially?---Currently at this rate probably approximately $400.
PN324
A fortnight?---Yes, that's rough, very rough.
PN325
Were you advised that you could be placed elsewhere if a vacancy arose?---That was my understanding of the agreement, I had a look at the Work and Job.
PN326
How did you come to that understanding?---I was on the project team with George Panigiris and the RTBU reps.
PN327
Involved in the negotiations?---Yes, and every step in the negotiations, yes.
PN328
THE COMMISSIONER: Did we seek to tender Mr Thomas's statement?
PN329
MR MOON: I am sorry, I apologise, Commissioner. I would like to tender his statement.
**** ANTHONY MARK THOMAS XN MR MOON
PN330
PN331
MR MOON: I would like to tender those attachments with that statement.
PN332
THE COMMISSIONER: Well, the attachments up to attachment 6 as amended are part of ASU3.
PN333
MR MOON: Would you advise the Commissioner what happened in terms of what brought you to be in dispute with State Rail?---I saw the position at Hurstville advertised in July and I rang Geoff Francis who was involved in Work and Job from State Rail, he had a fairly in depth knowledge of it. I asked him if the agreement was still operational, he said yes.
PN334
That agreement was?---Work and Job 98 agreement.
PN335
In terms of what agreement - - - ?---Disadvantage clause and as far as shift work status.
PN336
Meaning what?---Me being transferred from a non-shift work position into a shift work position because I - - -
PN337
Sorry, go on?---I contacted him and he advised me verbally that he'd seek some advice and came back about half an hour later and advised me, yes, it was still functional and I said, well I'll send you an email regarding the position. If you send it to me, and I'll process it for you and give it to the right people.
**** ANTHONY MARK THOMAS XN MR MOON
PN338
Did you send him an email?---I certainly did, it's attachment 3, his email.
PN339
THE COMMISSIONER: I hope we're not going through a blow by blow point of the affidavit, I mean I can read it unless it needs elaboration, that's the only thing.
PN340
MR MOON: What happened after - go to - were you offered the position?---State Rail sent me a fax offering me the position. I rang Maria Dubinin and advised her that the position that she put on there was wrong. She sent me a thing that had reducing time on there and the wrong position number.
PN341
Now attachment 4 refers to sales account team leader reducing time?---At Hurstville.
PN342
Then what happened after you advised her of that?---She faxed me a new copy. She changed the reducing time to fixed and I rang her again and I said, look, I know the position number because I have a copy of the roster for Hurstville, I'd done that in the meantime got a copy of their roster, and I said I'll put the position number on it, I'll sign it, and send you back the original in the dispatch.
PN343
So you signed it and sent it back to them accepting the position?---That's right.
PN344
Did you alter anything on the document other than the position number?---No.
PN345
Then what happened?---I just sat at Martin Place waiting to, I had a phone call from my roster clerk, Wayne Blake, and he said I understand that you're going Hurstville, I've been notified verbally - - -
**** ANTHONY MARK THOMAS XN MR MOON
PN346
Who had he been notified, do you know?---He didn't tell me but he said I can't release you. I said, well whenever you can release me that's fine, that's neither here nor there as long as I get the position eventually. After that I had an anonymous fax sent to me over an RTBU letter about the position and how I - and I was actually named in the document - and I rang Greg about that and I sent him an email expressing my concerns and my dismay about why - - -
PN347
Is that attachment 5?---That's attachment 5, yes, that's 1 October.
PN348
August 14 is the letter there, attachment 5?---No, attachment 5, that's the RTBU letter. That's the thing that came anonymously to me, it had no fax ID header on it.
PN349
THE COMMISSIONER: Do you want to tender that, Mr Moon, or not, it's not before me, I didn't realise that.
PN350
MR MOON: I don't think so.
PN351
THE COMMISSIONER: If it's not relevant to me don't give it to me but you know - Mr Thomas, just hold it for a moment please.
PN352
MR MOON: We'll move on from there, I don't think I need to tender that. That's really a matter between the RTBU and SRA.
PN353
THE COMMISSIONER: Good, I don't have to have regard to that?
PN354
MR MOON: No.
PN355
So yes, go on?---I rang Greg and then I emailed him about it and in my letter I told him that I was pretty disappointed and disadvantaged and I felt like State Rail had discriminated against me and I also knew of two other positions that were identical to mine where people had been transferred into them.
**** ANTHONY MARK THOMAS XN MR MOON
PN356
Did State Rail - - -?---Not the same grade, sorry, but similar things, disadvantaged and then transferred back into shiftwork positions.
PN357
There have been other employees who have been - - -?---Certainly have.
PN358
Can you name any?---A gentleman by the name, he's now the SM at Lithgow. He was disadvantaged at Lewisham, same thing, he had a 7 day a week SMs roster, they transferred him to Stanmore when the position became vacant which is a 7 day a week roster, and now he's taken another promotion to Lithgow. There's also the same thing happened - - -
PN359
I don't want you to talk about, I don't want you to speak about the promotions, you need to speak about the actual agreement and the activation of that agreement by State Rail?---When he moved along, the next person was a similar person, an SM at Croydon who was Monday to Sunday under work and job, he lost his shiftwork status, became Monday to Saturday, and he moved into the position also at Stanmore when the other person left Lithgow into a 7 day a week roster.
PN360
MR CLEMENTS: Commissioner, I have an objection to this evidence. I don't know that Mr Thomas is in any position to give any evidence of this. This is things obviously that he has heard on the grapevine. Unless he has - - -
PN361
THE COMMISSIONER: Are you saying it's hearsay evidence, Mr Clements?
PN362
MR CLEMENTS: That's correct.
PN363
THE COMMISSIONER: And you're telling me not to have regard to it?
PN364
MR CLEMENTS: That's correct.
**** ANTHONY MARK THOMAS XN MR MOON
PN365
THE COMMISSIONER: I have an objection, Mr Moon.
PN366
MR MOON: Commissioner, we could attempt to verify the evidence of Mr Thomas and present that - - -
PN367
THE COMMISSIONER: I don't know, is it relevant to me anyway?
PN368
MR MOON: Merely in terms of trying to say, Commissioner, that there was an application of the agreement along the same way that Mr Thomas would like it applied to himself, that's all.
PN369
THE COMMISSIONER: It's up to the parties how they run their case. Opposition is noted, Mr Clements, so you can put it in your submissions to me, say to me it's hearsay evidence and it's not relevant to me.
PN370
MR MOON: We would seek leave to have that opportunity to at a later time to submit to the Commission verification of what Mr Thomas is saying in terms of the application of the agreement to other employees.
PN371
THE COMMISSIONER: Well, I'm just hearing the case, Mr Moon, I mean we've already said, I've adjourned for 15 minutes, I'm going to hear the case.
PN372
MR MOON: I appreciate that, it may be in final submissions.
PN373
THE COMMISSIONER: You're running your case, I mean, you put, if you want to make another application to me then I will rule on it if and when you make it. Mr Schmidt, what are you doing, you're standing up?
**** ANTHONY MARK THOMAS XN MR MOON
PN374
MR SCHMIDT: Sorry, I thought I might try and assist the process. SRA acknowledges that people who might fall into the category of persons who lost their shiftwork status in essence were removed from shiftwork, have since the introduction of the job and work agreement been placed, any number of them. There is nothing that we would argue there.
PN375
THE COMMISSIONER: What you're saying to me, Commissioner, this evidence that Mr Thomas is giving is not relevant to me?
PN376
MR SCHMIDT: Totally irrelevant we would say because we have placed people. The issue is really the issue before you that is Mr Thomas, what happened there.
PN377
MR MOON: I'll move along, Commissioner.
PN378
So what's happened with yourself, did State Rail advise you as to why you weren't going to be placed at Hurstville?---They advised me that they had a dispute with the RTBU and then I was offered some DM2 positions.
PN379
Duty managers positions?---That's correct, level 2 which are a lower pay point.
PN380
Did they explain what the dispute with the RTBU was to you?---About the job being withdrawn when it shouldn't have been so they say is my understanding of what the dispute - it's very vague.
PN381
About the advertisement being withdrawn?---Very vague about it.
**** ANTHONY MARK THOMAS XN MR MOON
PN382
So when you were offered other positions within the Authority did you decline those?---I did decline those. I met with Mr Greenhalgh on approximately 28 October. He offered me some DM positions in certain areas, DM2s, and I advised him they were lower paid point and he mentioned, we'll keep your salary maintenance, and I advised him by email on the 30th that I wouldn't accept the DM2 positions. I was further offered positions on 15 January by Bert Smith.
PN383
Why were you offered positions?---I think they wanted to offer me positions so they could resolve the dispute over Hurstville.
PN384
Resolve the dispute with you or with the RTBU?---Well, either, I'm only surmising, with either. If they could fix me up with a job - - -
PN385
THE COMMISSIONER: I have an objection, someone just raised an objection.
PN386
MR CLEMENTS: Without dragging this on, Commissioner, I think that the witness is being asked to give the state of mind of SRA. First of all obviously SRA hasn't been defined who that is, and secondly, I don't think Mr Thomas is in any position to outline why someone else did something, especially an entire organisation.
PN387
THE COMMISSIONER: Mr Moon, the point is taken.
PN388
MR MOON: I withdraw the question.
PN389
THE COMMISSIONER: I just have one question. Mr Thomas do you have the affidavit there in attachment 4?---Yes.
**** ANTHONY MARK THOMAS XN MR MOON
PN390
You probably did say this in your evidence-in-chief, but I just want to clarify it?---Yes.
PN391
You received attachment 4?---That's correct.
PN392
On 29 July through the email system?---No, 31 July by fax.
PN393
Can I just say something - there is a pen clicking. Is someone clicking a pen? I can hear something clicking - I don't know whether it's a shoe or something, but it's nearly driving me insane.
PN394
Mr Thomas, attachment 4, it's got file note stamped on it?---That was the attachment that SRA submitted to us.
PN395
So this is a copy of a document that you say you received?---That's right.
PN396
And the next page over - - -?---Is the copy of the original I sent back.
PN397
It's a photocopy of the document you received?---That's right.
PN398
And up the top I think it's faxed at 9.27 on 31 July 2002?---That's correct.
PN399
You say you filled this out, you changed the number?---That's the only part - - -
PN400
But who changed the reduce in time?---Lorea Dubinin.
**** ANTHONY MARK THOMAS XN MR MOON
PN401
Before she faxed it to you on 31?---The second time. I advised her by phone that it shouldn't have been reduced in time.
PN402
But this is the second document you received?---That's right.
PN403
And you don't have the first document you received?---No.
PN404
And the first document was faxed to you on 31?---They were both faxed the same day within about 10 minutes of each other.
PN405
I see. Then you sent it back through the internal mail delivery system?---That's right, because I knew they would want the original signature.
PN406
Why didn't you fax it?---It's not the original.
PN407
I see. Anything arising, Mr Moon?
PN408
MR MOON: No, thank you, Commissioner.
PN409
PN410
MR SCHMIDT: Mr Thomas, in respect of point 4 in your affidavit?---Yes.
PN411
The discussions with Ms Dubinin?---Yes.
**** ANTHONY MARK THOMAS XXN MR SCHMIDT
PN412
Can you tell me where you made the telephone call from?---From my phone number - 91847.
PN413
Is that a home number or is that - - -?---Departmental 91847.
PN414
Departmental - 91847?---Correct.
PN415
And that's at Martin Place?---That's my phone at Martin Place. It's the only one in the office.
PN416
You made that call on 31?---That's right.
PN417
You say that you received two documents from Ms Dubinin - the first one is the one that noted with the stamped file?---Correct.
PN418
MR MOON: No, that's not what he said. He said - he needs to clarify what he's referring to, because he didn't say that. What he did say was, Commissioner, was that he received the second letter with Mr Koelmeyer's signature on it on two occasions on the same date.
PN419
THE COMMISSIONER: Yes, that's correct, Mr Moon. Attachment 4 is a copy that State Rail had provided to the union. That's what he has said.
PN420
MR MOON: That's right. That cover page is not what Mr Thomas received on that day, the first page. He received two copies of the second page.
PN421
THE COMMISSIONER: No, I don't think that is quite correct. I am going to clarify this.
**** ANTHONY MARK THOMAS XXN MR SCHMIDT
PN422
Mr Thomas, attachment 4 with the stamped file, that's a copy of this transmission that State Rail have provided to the union?---That's correct, that's right.
PN423
The second document on attachment 4 is one copy of an email of a facsimile - correspondence by fax that you received from State Rail. The first one being reducing time crossed out, with the word fixed on it?---That's right.
PN424
And a position number which you then altered, which is reflected in this second document?---That's right.
PN425
And then you wrote on it and signed it and dated it 31?---That's correct.
PN426
So this is not the exact document that you received at first with the fax?---That's correct. The first one is the exact document that I got.
PN427
Yes, the one with the file?---Without the file on it of course.
PN428
That's right. So the first sheet of attachment 4 is a copy of what you were sent?---By fax. The first document. Then I rang Ms Dubinin advised that it was wrong.
PN429
Yes, and then the second one is the one you forwarded on?---That's correct.
PN430
MR MOON: Commissioner, I just want to clarify that, because if you have a look at the signature of Ms Koelmeyer on both those letters, they are different signatures. In that if you have a look at the Y, it goes through stations officer on the first letter, and goes through stations on the second letter. Do you see what I'm looking at?
**** ANTHONY MARK THOMAS XXN MR SCHMIDT
PN431
THE COMMISSIONER: Mr Moon, it's your member's evidence to me.
PN432
MR MOON: That's why I wanted to clarify that point that Mr Schmidt's raising in that they are different documents, in that they are signed differently - - -
PN433
MR SCHMIDT: That's not the point I am raising at all.
PN434
MR MOON: Well he's put to Mr Thomas that you received - - -
PN435
MR CLEMENTS: I am objecting to Mr Moon giving this evidence from the bar table, Commissioner. The witness is in the stand - I am sure the witness can give his evidence without Mr Moon making a submission here.
PN436
MR MOON: Commissioner, I am attempting to clarify my objection to Mr Schmidt.
PN437
THE COMMISSIONER: Yes, clarify, Mr Moon. Why don't you ask your witness questions for clarity.
PN438
MR MOON: Do you see the signatures on those two letters?---Yes, I do.
PN439
Do you see that they are different?---Yes, I do.
PN440
Can you tell the Commissioner that the first letter which has got file written on it, was definitely sent to you, or not?---No, I can't.
PN441
Can you tell the Commission whether the second letter was sent to you or not?---The second letter was definitely sent to me. The first was supplied by Mr Schmidt a couple of days ago.
**** ANTHONY MARK THOMAS XXN MR SCHMIDT
PN442
Could have State Rail copied out the first letter at a later date, do you know?---They may have - I am only surmising again - they might have had it stored on the computer.
PN443
And had it signed by Ms Koelmeyer?---Yes.
PN444
Thank you, Commissioner.
PN445
MR SCHMIDT: I wonder where this all leads, but can I just ask you this Mr Thomas. If you didn't receive the document on 29 July or 31 July which I won't quibble with, without any alterations on it, how would you have been made aware that the document did not refer to Hurstville by either the correct number or made reference to reduce in time. Are you telling us that you never received a document without any alterations?---I received a letter, besides the signature, the same as the first one. That was the wording which it is.
PN446
The same as the first one - which is the one with the stamp on it?---The signature is in a different spot, but yeah.
PN447
Let's not talk about the signature?---Yes, okay.
PN448
THE COMMISSIONER: The terms I think you say, the terms?---The terms. They are identical letters except as I said, she had reduce in time and the wrong position number.
PN449
MR SCHMIDT: So we got a clean letter in the first instant to you?---That's right.
PN450
You then contacted Ms Dubinin?---Yes.
**** ANTHONY MARK THOMAS XXN MR SCHMIDT
PN451
And you said by telephone and you gave us the telephone number from Martin Place on 31?---Yes.
PN452
Then some changes made and it was faxed back to you?---She changed the fixed and then I rang her back and said you haven't changed the position number, but I have it here because I have a copy of the current roster and I said I've got the position number on the roster, I'll fix it.
PN453
What did you do then?---I wrote on the bottom, I accept this position as a transfer, thanking you, signed it, printed my name, put my employee number, and the date. Put it in a railway envelope, put it in dispatch.
PN454
Okay. Can you just, I mean, I'm a little bit amused by this and surprised in the sense that when did you supply your copy of that document to State Rail?---Last week.
PN455
Why didn't you supply it between July and then?---I thought that I may have given Greg Greenhalgh the original as a matter of fact when I first met with him but I couldn't say for certain I had this copy at home.
PN456
You think you gave it to Mr Greenhalgh?---Yes.
PN457
Could you have given it to anybody else?---No.
PN458
This is the original?---Not the original original, a photocopy of the original, when we first met. Mr Rule was present and I gave yourself, Mr Greenhalgh, and Barry Rule a copy of most of the documentation I had on that day regarding the position at Hurstville.
PN459
There's a question that I have for you in respect of your email to Mr Greenhalgh?---Yes.
**** ANTHONY MARK THOMAS XXN MR SCHMIDT
PN460
I might just come to that. I'm sorry, if I may for a second: I take it that attachment 6 has been withdrawn?---No.
PN461
That's your email of the 30th?---That's right.
PN462
If I can just take you to the discussions that you had with Mr Greenhalgh during October?---Yes.
PN463
Did you at any stage in those discussions with Mr Greenhalgh indicate that you were prepared to accept a duty manager's position at either 2 or 3?---What do you mean by 2 or 3?
PN464
Level, grade 2 or grade 3?---I said I'd consider the position.
PN465
You would consider?---That's right.
PN466
Did you at that point in time say, Hurstville is where I want to go?---I did in my email after I considered my position and discussed it with my wife.
PN467
So that was when?---When I declined the first one?
PN468
No, no, in your email to Mr Greenhalgh where you declined, where is that contained?---It's in the 30th.
PN469
On the 30th?---That's right.
PN470
Okay. So you say that an email of the 30th says to State Rail that you want Hurstville, that's what you're saying?---Doesn't say I want Hurstville, but you'd called me up, you had a problem with Hurstville or Mr Greenhalgh did.
**** ANTHONY MARK THOMAS XXN MR SCHMIDT
PN471
No, no, I'm asking you what you say your email means?---That I don't accept the positions of duty managers level 2.
PN472
You don't say I don't believe that Hurstville is where I want to go?---I thought I made that perfectly clear when I met with you.
PN473
Can I ask you this further, did you make application for the vacancy that State Rail advertised that existed at Hurstville in the SATL position as advertised in job opportunities on 14 November - Commissioner, that is SRAL and in exhibit SRA1, and it's issue number 3. Did you make application?---No, I didn't.
PN474
Why not?---I'd asked the ASU to submit a section 99 on you.
PN475
So you asked your union to submit a section 99?---That's correct.
PN476
And I respect that. You are asking this Commission to believe that that action alone signifies based on your 30 October email to Mr Greenhalgh that Hurstville is it, nothing else?---Hurstville was always for discussion.
PN477
Well, it doesn't say so in your email?---That was always in the discussions verbally though as you know.
PN478
And you have documents or notes that you have to that effect?---Didn't take any notes really.
PN479
I see. No further questions.
PN480
**** ANTHONY MARK THOMAS XXN MR CLEMENTS
PN481
MR CLEMENTS: Mr Thomas, you said earlier your phone number at Martin Place is 91847?---That's correct.
PN482
Is that in fact the SATL phone number at Martin Place?---That's the only line on my desk, yes.
PN483
I put it to you that the SATL number at Martin Place is 91646?---That's the booking office number.
PN484
In relation to attachment 4 to the two documents that make those up?---Yes.
PN485
So you received this document, the second document on the 31st?---That's correct.
PN486
And you say that the document that came on the 31st had a problem with the reducing time?---That's correct.
PN487
And a problem with the Hurstville position number?---That's correct.
PN488
And the reducing time was corrected by someone in State Rail?---That's right.
PN489
At your request?---Yes.
PN490
And you've also submitted that the signature being different between the first and second document, you agree they are different, those?---They moved anyhow, yes.
PN491
So the signature on the second document, when do you think that was changed?---Whenever State Rail produced the second letter, the first letter, or this file copy of the letter.
**** ANTHONY MARK THOMAS XXN MR CLEMENTS
PN492
So do you think that was on the 31st?---I wouldn't have a clue. I'd only be surmising.
PN493
Do you have any idea why they would change the signature on that?---Maybe they lost their copy.
PN494
And to print out, to get a copy without the signature on it what do you think State Rail would have to do?---Access wherever the file was in the computer at HR.
PN495
MR MOON: Commissioner, he can't think for the State Rail Authority.
PN496
MR CLEMENTS: He's just given me an answer.
PN497
THE COMMISSIONER: I think he has answered it.
PN498
MR CLEMENTS: And so in fact you see the bottom of this second document?---Yes.
PN499
It says, printed on 29 July, 2002?---Yes.
PN500
So obviously this document was printed out on 29 July 2002?---That's right.
PN501
Did you receive, and do you recall receiving a copy of the first letter?---As I said in my earlier evidence it was very similar to the file copy that we have.
PN502
And when did you get that?---The 31st by the fax header.
**** ANTHONY MARK THOMAS XXN MR CLEMENTS
PN503
So you surmised that two separate documents were printed out on the 29th of July and two separate documents were sent to you?---What happened was, this document number 2 that I have signed came without any alterations. I rang State Rail and advised them that it was a fixed position, not a reducing time, and that needed to be changed and that the position number was wrong. I'm only estimating because it's a long time ago, it's over 6 months ago, that it may be 10 minutes later I received it back again. I rang them and I said, you haven't changed the position number, I'll change it and put the right position number on it, I'll sign it, and send it back to you in departmental dispatch.
PN504
When did you find this document with your writing on it?---At home in my office.
PN505
When?---About last Thursday or Friday, we were here on the 14th, correct? If I recall the Commissioner asked that we have a look for these documents and I went home and turned the house upside down and I eventually found it under the bed in a box with a lot of other files on about the 17th I think it was.
PN506
And you were in fact at a subsequent meeting - - -?---Yes.
PN507
- - - given a copy of the document with file stamped on it, weren't you?---Certainly was.
PN508
And I put it to you that you couldn't find your document with the writing on it until the very day after you were given the one with the file copy on it?---No, you're wrong.
PN509
Did you produce a copy?---No.
PN510
At the meeting?---I didn't expect to have it at the meeting.
**** ANTHONY MARK THOMAS XXN MR CLEMENTS
PN511
Had you found it before the meeting?---I found it on the Thursday evening at home.
PN512
And that the meeting was in fact on the Thursday, wasn't it?---That's right, but I also contacted Ms Dubinin on the Wednesday and asked her when I looked for it on the Tuesday in other parts of the house I contacted her to ask her if she had a copy of my original one that I sent and she had a look for about 10 minutes and came back and said, no, I can't find anything on the file, you know what the filing system is like here.
PN513
So you're telling the Commission that in fact on Thursday, some time during the day on Thursday, you were given - - -
PN514
THE COMMISSIONER: Can we have a date, when is Thursday?
PN515
MR CLEMENTS: Sorry I shall.
PN516
THE COMMISSIONER: So it was Thursday - - - ?---Thursday, 16th I think he's referring to.
PN517
So it was Thursday, 16th you - - - ?---I think he's referring to.
PN518
MR CLEMENTS: Thursday, 16th there was a meeting, that's correct. Prior to Thursday, 16th you could not find this, could you?---No, but I was looking. I asked to look for it.
PN519
On the evening of Thursday, 16th after being given a copy of this with "file" stamped on it, the first letter in attachment 4, you miraculously found your copy that evening?---That's right.
**** ANTHONY MARK THOMAS XXN MR CLEMENTS
PN520
I have no further questions.
PN521
THE COMMISSIONER: Anything in re-examination, Mr Moon?
PN522
MR MOON: No, Commissioner.
PN523
PN524
THE COMMISSIONER: Any other witness evidence, Mr Moon?
PN525
MR MOON: No, Commissioner, but I am concerned about the submission State Rail made and I just want to raise that with - - -
PN526
THE COMMISSIONER: About what?
PN527
MR MOON: On the last page of their submission they refer to doing an examination of the telephone calls made - - -
PN528
THE COMMISSIONER: I am sorry, where are you?
PN529
MR MOON: The last page of SRA1.
PN530
THE COMMISSIONER: And the attachment, attachment P.
PN531
MR MOON: The attachment SRA-P, sorry.
PN532
THE COMMISSIONER: Attachment P to SRA1?
PN533
MR MOON: Yes, sorry. What they did is they did a check on what phone calls were made to where from Martin Place within the State Rail Authority on 31 July and 1 August 2002 and they came back and advised us that there was none made to the HR section on those days but my concern - and I just want to clarify - - -
PN534
THE COMMISSIONER: Was that put to Mr Thomas?
PN535
MR MOON: No, but - it was put in terms of what phone number he utilises at that location. I just want to point out to the Commission that the phone numbers that were checked by State Rail are only - - -
PN536
THE COMMISSIONER: They are not the phone numbers that Mr Thomas says was his phone number.
PN537
MR MOON: Yes, that's right and I just wanted to clarify that in case anyone wanted to re-examine Mr Thomas about that because the phone number to which he refers is 91847 - - -
PN538
THE COMMISSIONER: Well, nobody raised it with Mr Thomas.
PN539
MR MOON: They did mention the phone number with him but - - -
PN540
THE COMMISSIONER: I don't know that he was asked to comment on this document, was he?
PN541
MR MOON: Okay, I just wanted the Commission to be aware that they have not checked the numbers that he actually uses at that location.
PN542
THE COMMISSIONER: Anything else, Mr Moon? Any other evidence?
PN543
MR MOON: No, Commissioner.
PN544
THE COMMISSIONER: No other documentation to tender except that you might be tendering through other witnesses?
PN545
MR MOON: Yes.
PN546
THE COMMISSIONER: Thank you. Mr Schmidt, you are planning to call two witnesses?
PN547
MR SCHMIDT: Only if need be. I am not sure that my friend has taken issue with our statement, in particular I think in respect of point 31 of the statement of fact. You might recall, Commissioner, that we undertook on the 20th when we were before you to make contact with Ms Koelmeyer to ascertain whether or not because we were told at that stage that a discussion had taken place between Mr Thomas and Ms Koelmeyer.
PN548
THE COMMISSIONER: On 16 January?
PN549
MR SCHMIDT: No, this was in respect of 31 July and Ms Koelmeyer indicates that her view of events is not the same as Mr Thomas's. Subsequent to - - -
PN550
THE COMMISSIONER: They are not the same as Mr Thomas's?
PN551
MR SCHMIDT: Not the same and can I say if I take you to point 36 - - -
PN552
THE COMMISSIONER: Well, I don't have her evidence. This is your statement, is it not?
PN553
MR SCHMIDT: No, I appreciate that but what I am saying is that the ASU has had our material since yesterday and has not taken issue with either of the points and what I am seeking to ascertain is, is there a need to actually examine Ms Koelmeyer in respect of that because if there was no contact made - - -
PN554
THE COMMISSIONER: It is up to you, Mr Schmidt. I am not running the parties' matters for them but the thing is I have Mr Thomas who has sat in the box and has given me sworn evidence.
PN555
MR SCHMIDT: I appreciate that.
PN556
THE COMMISSIONER: If I don't have any evidence which contradicts that then it is open to the ASU to say to me well, I am sorry, Commissioner, you are going to have to accept that evidence, there is no reason why you should not accept it. So it is up to State Rail, it is up to the RTBU, I will go and have lunch, Mr Schmidt, I am fine but I just ask you - all I am doing is asking - don't ask me for permission to call, you are running your case. I said to you what do you want to do? I have a list here that you are going to call two witnesses, do you plan to call them?
PN557
MR SCHMIDT: We certainly do. Do you wish to do that before you adjourn or - - -
PN558
THE COMMISSIONER: Well, how long are you going to be with them and I will ask Mr Moon how long he thinks he might be in cross or whether Mr Clements has any questions?
PN559
MR SCHMIDT: I don't expect that I will be long with either of them.
PN560
THE COMMISSIONER: Well, neither have put in an affidavit which is fine, there was no necessary requirement, so evidence in chief from you will be what?
PN561
MR SCHMIDT: 15 minutes.
PN562
THE COMMISSIONER: Okay, for both witnesses, you want to call both?
PN563
MR SCHMIDT: In terms of the witnesses, Ms Koelmeyer only to attest to the fact that as we indicate and Ms Dubinin for clarification in respect of - - -
PN564
THE COMMISSIONER: Okay, so you will ask a few questions about 15 minutes each?
PN565
MR SCHMIDT: 15 minutes between the pair of them. I would not think it would take long.
PN566
THE COMMISSIONER: Very well. Mr Moon, how long do you think you might be with both witnesses?
PN567
MR MOON: About four minutes.
PN568
THE COMMISSIONER: Mr Clements?
PN569
MR CLEMENTS: I cannot see any reason for us to ask any questions at this stage, Commissioner.
PN570
THE COMMISSIONER: Well, why don't we call them now? I may regret this but it appears you are both indicating to me we will be finished this witness evidence in half an hour. Now, I have had promises from the bar table before today, I can assure you - - -
PN571
MR SCHMIDT: I was just going to ask for a five minute comfort break if I may.
PN572
THE COMMISSIONER: Look, if you think you are going to be that quick, I have to adjourn at 2.30 and I have already advised the parties of that, I don't know that we are going to get through the evidence of the two witnesses plus closing submissions, are we? I am prepared to adjourn the matter to hear closing submissions on Monday in the afternoon but it is just unfortunate, gentlemen, I would have presumed that the matter was going to be finished by lunch time. So if we adjourn for lunch and - - -
PN573
MR MOON: Commissioner, can we go ahead with the examinations, clear that up and then adjourn after that?
PN574
THE COMMISSIONER: Well, I might run into 2.30, Mr Moon.
PN575
MR MOON: I will take the punt.
PN576
MR SCHMIDT: I'm simply looking for five minutes and we can continue.
PN577
THE COMMISSIONER: Very well. Mr Clements, do you have a view at all being an intervener?
PN578
MR CLEMENTS: Obviously my view was put earlier when the adjournment was mentioned, Commissioner and the matter has been dragged out. Mr Moon made a very lengthy submission before calling the evidence and as I say we want it run through today, we are very strong on that. Adjourning it to another day will disadvantage us so we would like to try and run through and I cannot see why it shouldn't.
PN579
THE COMMISSIONER: I take your point, Mr Clements, but I try not to tell parties that I won't hear their submissions because I think they are rambling, not that any of the parties who appear before me ever ramble but I find it a tad rude not to mention natural justice and procedural fairness. So while you may think Mr Moon has pushed the time out - you might be right, Mr Clements, I really don't know - but I was not inclined to pull him up because I am quite sure the RTBU would not be appreciative if it chose to give me a lengthy opening submission and I attempted to stop them from doing it. I think a full bench might take a tad of a view on that. So I hear parties, unless I think they are going over the same ground and then I pull them up.
PN580
I hear what you are saying. I am going to adjourn for five minutes. I am going to come back and hear the remainder of the evidence and then I am listing the matter for Monday afternoon to hear closing submissions and anything in reply. Anything else, gentlemen?
SHORT ADJOURNMENT [1.07pm]
RESUMES [1.17pm]
PN581
THE COMMISSIONER: Yes, when you are ready.
PN582
MR SCHMIDT: State Rail - - -
PN583
MR CLEMENTS: Commissioner, before State Rail calls for evidence, I apologise, the RTBU at this stage would like to raise for the record a jurisdictional objection in this matter. I did seek to raise it earlier after Mr Moon's submission. Mr Moon has outlined his case, first in the opening submission, and secondly through his evidence. Mr Moon has admitted that he - - -
PN584
THE COMMISSIONER: Mr Moon hasn't given evidence.
PN585
MR CLEMENTS: Sorry, through the evidence that the ASU have called and Mr Moon has through his submission admitted that he is not seeking to rely on anything within the certified agreement to which this section 170LW relates. He is, in his own submission, seeking to rely first of all on a statement made on the transcript of the certification of the agreement of a Mr McKenzie, which refers to the no disadvantage test, and at the relevant section of that transcript, Mr McKenzie in fact refers to section 6.3 of his - - -
PN586
THE COMMISSIONER: Mr Clements, what are you saying to me. Just cut to the chase.
PN587
MR CLEMENTS: I am saying, Commissioner, that the ASU's submission in their own submission are not attempting to rely on anything within the actual terms of the job and work redesign agreement.
PN588
THE COMMISSIONER: These are your submissions, are they?
PN589
MR CLEMENTS: No, this is an objection to jurisdiction, Commissioner.
PN590
THE COMMISSIONER: Well an objection to jurisdiction is part of me hearing the matter anyway, but I point out to you, Mr Clements, that I raised the question very very clearly with the parties and the advocates at the bar table when I commenced and I very very clearly outlined, and I couldn't have done it clearer, what had to be addressed and the RTBU's submission was to me, it is no question of jurisdiction. The dispute settling provision vested in the Commission, the power to arbitrate, and in regards to a dispute over the application agreement, the RTBU agrees that it is a dispute over the application. We will only be making submissions in regards to the merit of what you should do about the matter.
PN591
Are you telling me now, that you wish to change those submissions?
PN592
MR CLEMENTS: Mr Moon in his submission before Mr Thomas gave evidence, addressed in fact the subject matter of the case which threw different light on the case.
PN593
THE COMMISSIONER: All right, so you are telling me that your submissions when I take them on Monday, will be different to what you opened with?
PN594
MR CLEMENTS: I am saying in terms of jurisdiction for the record - - -
PN595
THE COMMISSIONER: No, not for the record - you saying to me that your opening submission has now changed and that on Monday afternoon when I hear submissions, the RTBU will put before me that I don't have jurisdiction for whatever reason, whether it's a dispute settlement provision or over the application agreement - that is what you are saying to me.
PN596
MR CLEMENTS: Except to say that I did make an opening submission, I really answered the question in relation to jurisdiction, then yes, that's changed.
PN597
THE COMMISSIONER: You can put that to me on Monday then. Mr Schmidt?
PN598
PN599
THE COMMISSIONER: Take a seat please, Ms Koelmeyer.
PN600
MR SCHMIDT: Ms Koelmeyer, can you for the record just let us know your job designation?---I am the Senior HR Support Officer for the station.
PN601
How long have you held at position?---Permanently appointed since November last year.
PN602
And prior to that?---I have been acting in it and I have been HR Manager since 1996 in the south east sector.
PN603
Is the term HR team leader stations familiar to you?---Originally this position that Helen Doulton currently holds was the HR team leader position. It's now the HR Services Manager.
PN604
And you held that position or occupied that position?---I was acting in that last year.
PN605
Is it fair to say that you acted in that position late July?---That was the title, yes.
PN606
I might just show you a document if you would be so kind as to identify the document, if you could - SRA(G).
PN607
THE COMMISSIONER: That's SRA1 attachment G?
PN608
MR SCHMIDT: Yes, my apologies, and that's the document with the file stamp on it. Do you have the document?---Yes, I do.
**** JANE MARION KOELMEYER XN MR SCHMIDT
PN609
Can you identify the document at all?---It looks like a copy of a letter that I sent to Mr Thomas, cc to Maria Dubinin, advising him that he was being transferred to the sales account team with a reduce in time, Hurstville.
PN610
And when do you believe that document was signed by you?---It would have been signed on the same day that I wrote it. I usually write them, sign them and send them out myself.
PN611
Could it have been signed two weeks ago?---No.
PN612
Why not?---I was on holidays in Melbourne.
PN613
Can I ask you this. Is it normal practice within State Rail stations as far as you are aware, to provide staff, subject to transfer - as is the subject matter of that particular memo - is it normal practice to provide them with amended hand written documents?---If I was changing it, and I can only speak for myself - if I had to change this I would have retyped it and changed the reduce in time to 6, and the position number and signed it and sent it, but I would have referred to my previous letter of 29 July, or referred to a telephone conversation. If I had redone the letter that's how I would have done it.
PN614
Do you recall any telephone discussions at all between yourself and Mr Thomas?---No, I can't recall even talking to Mr Thomas, I'm sorry.
PN615
Do you recall a telephone conversation between yourself and Ms Doulton?---That I spoke to her and she rang me up on the phone three weeks ago about Mr Thomas. I'm sorry, not three weeks ago, last week.
**** JANE MARION KOELMEYER XN MR SCHMIDT
PN616
What was the subject of that discussion?---She asked me - I was driving back from Melbourne - it was a mobile phone call and I had to stop on the side and answer it - and she asked me whether I recalled having a conversation with Mr Thomas about July/August last year. I asked her why and she said there was an issue in the Commission and I said, I don't recall talking to Mr Thomas. To the best of my knowledge I have never spoken to him or not that I recall. I don't remember ever having spoken to him.
PN617
And that's your evidence?---That's my evidence.
PN618
In respect to the document that you have?---Yes.
PN619
In sending a document of that sort to an employee by fax, what is normal practice within HR?---I wouldn't have sent - normally I don't send letters out by fax unless they specifically ask me to fax it to them, because it doesn't take very long to get to them. I usually send it in an envelope, but I would have given Maria - handed Maria a copy, because she was cc.
PN620
Is there any record taken within HR of documents that might be faxed?---Yes, I stamp fax on it - on the document, and I put the date I fax it.
PN621
So it's similar to a stamp file but it's just fax?---Yes, with the file I fax under.
PN622
I might show you another document which is the note of document, Commissioner. It is also forms part of SRA1 which is the attachments to the Forensic Document Services paper.
PN623
THE COMMISSIONER: SRA1 at what?
PN624
MR SCHMIDT: It's the amended document which is noted by Mr Thomas that he accepts the position.
**** JANE MARION KOELMEYER XN MR SCHMIDT
PN625
THE COMMISSIONER: So it's not part of SRA1?
PN626
MR SCHMIDT: It is at the very end in terms of O. It's referred to in that as document 2 and that's the document that I'm simply showing to Ms Koelmeyer so that I've got a record of what I can refer to. This is the document that Mr Thomas says - the second page of attachment 4.
PN627
THE COMMISSIONER: You are showing to the witness SRA1 at O.
PN628
MR SCHMIDT: Yes. Do you have the document?---Yes, I do.
PN629
Have you ever seen the document before?---Not until you showed it to me yesterday.
PN630
Not until I showed it to you yesterday?---Yes.
PN631
Let me be clear about this. The date on the document is what?---It's 29 July - the same as this one that you showed me before.
PN632
You are the originator of that document?---Yes, except for the changes. Except for the changes fixed and position number and there is something that someone else has written at the bottom of it.
PN633
Can you just read that out to me?---It's "A Thomas, I accept this position as a transfer, thanking you, A Thomas". With an employee number and a date.
PN634
As HR Team Leader Stations at the end of July 2002, do you recall receiving that document back from Mr Thomas?---I've never seen that before.
**** JANE MARION KOELMEYER XN MR SCHMIDT
PN635
Until?---Until yesterday.
PN636
PN637
MR MOON: Ms Koelmeyer, the position at Hurstville has got reducing time, has it?---At the time that I wrote this letter that was what I was advised was the position that was vacant.
PN638
But you know that it is a fixed position, don't you?---I don't know what position we're talking about, Mr Moon, because all I know is at the time I wrote the letter it was a reducing time position and that was the number and the thing I was given by another employee.
PN639
Sales account team leader position, I put it to you that it's never been a reducing time position, that it's always been a fixed position?---You would be right.
PN640
Are you aware of an agreement whereby people who lost their shiftwork under job and work redesign would be offered positions elsewhere of equal standard, equal classification?---I don't know of any circumstances of recent but when we were in the south east if there was a position and someone was disadvantaged we gave them the opportunity of getting that job, we offered it to them or they raised it because usually they know before we do.
PN641
Sure, thank you. So you made an offer to Mr Thomas, is that correct?---Yes.
PN642
And that offer was as a result of the job and work redesign because he'd been disadvantaged?---Yes, I was told by Mr Francis that that was the case.
**** JANE MARION KOELMEYER XXN MR MOON
PN643
So you were advised by Mr Geoff Francis from State Rail to make that offer?---He said that Mr Thomas was entitled to this position under the job and work translation and disadvantaged; being disadvantaged he was entitled to be offered this position.
PN644
Now, did you have a register of names of those people?---Not for the whole of Cityrail, Mr Moon.
PN645
Okay. Did you have Mr Thomas' name on a register?---Not on my register.
PN646
But you did say in that letter that he will be removed from the register of employees who are disadvantaged under job and work redesign?---Yes, because Mr Francis advised me that in his, he sent me an email.
PN647
Now, have other employees been removed from your register when they've been placed in weekly position?---I don't know if they've been placed or if they've been promoted.
PN648
No more questions, thank you, Commissioner.
PN649
THE COMMISSIONER: Can I just - Mr Francis sent you an email, could you just clarify that for me please?---Yes, he sent an email which had attached a request from, I think it attached, I'm not really 100 per cent sure but it had Mr Thomas' request to be given the Hurstville job and they attached that email I think he said to me, please arrange for, something to the effect that to approve this transfer because he was entitled to it under that being disadvantaged and that he was the last employee or something on the list, something to that effect. I filed that.
PN650
And I don't have a copy of that, do I?---I don't know, Madam Commissioner, I don't know.
**** JANE MARION KOELMEYER XXN MR MOON
PN651
So when did, can you remember when Mr Francis, he sent you an email, did he; he didn't physically come in and speak to you?---No.
PN652
So do you remember when he sent you that email?---Would have been very shortly after this, before this, sorry, before 29 July, either on that day or before that.
PN653
And that's the reason that you drafted up this email to Mr Thomas. Where did you send the email to?---The memo, this letter you mean?
PN654
Memo?---Yes.
PN655
Well, it's actually attachment 4 to Mr Thomas' statement but you've got an attachment to the SRA submissions?---It's a memo that I wrote - - -
PN656
That's the original file, the one with the original file stamped on it?---That's it.
PN657
So where did you sent it off to; it's to Mr Thomas?---At Martin Place.
PN658
So you sent that to the email address at Martin Place?---No, I don't remember faxing it because if I had faxed it, I usually stamp that.
PN659
No, I didn't ask you that?---I didn't email it, no.
PN660
You didn't. So what did you do with it?---I sent it in the mail.
PN661
And you're sure you sent it by mail?---That's how I do it all the time. I never fax unless there's a specific reason for it. Whether Maria faxed her copy is another, I don't know, I can't answer for Maria and she'll give evidence to that effect, but I gave her a copy, CC, or I say I would have given Dubinin, and the other I would have put in an envelope and sent it out.
**** JANE MARION KOELMEYER XXN MR MOON
PN662
Okay. So you posted it to Mr Thomas at his home address?---No, SAT or Martin Place.
PN663
So you posted it to Mr Thomas at Martin Place?---Internal mail.
PN664
In the internal mail, okay. Have you got another, you've got the file copy, the one of this particular letter, you've got the one stamped file. Have you got the other one that's got written notes on it?---This one?
PN665
Okay. You see that second one which is SRA10, third, fourth page I think, and it says, it's got a box on it and it's got, document 2. Is that your signature?---It looks like my signature, yes.
PN666
Can you see that the two signatures, the Y is dropping down to a different spot?---It looks like it's spaced out a bit further than my - 1 is against, the Y goes under my name and the other one is away from it. On first glance - it's my signature but it's not the same letter because here the signature is right there and here the Y goes under the stations whereas here the Y is under the officer.
PN667
Do you say it is your signature?---It's my signature but I didn't sign the same letter twice.
PN668
Bit of a mystery, isn't it Ms Koelmeyer. Anything arising, gentlemen, at all?
PN669
MR CLEMENTS: No, thank you.
PN670
THE COMMISSIONER: You didn't want to cross but you want to ask a question.
**** JANE MARION KOELMEYER XXN MR MOON
PN671
MR CLEMENTS: I said at this stage, at that stage, I do have a question to ask arising out of something.
PN672
PN673
MR CLEMENTS: Ms Koelmeyer, do you recall when this position was advertised?---I can't quite remember.
PN674
Commissioner, would you like me to hand up SRAD which is 11 July or would we take that as read?
PN675
THE COMMISSIONER: Which one?
PN676
MR CLEMENTS: SRAD is in fact the initial - 1D, attachment D - my apologies, Commissioner.
PN677
THE COMMISSIONER: Does the witness have that at all?
PN678
MR CLEMENTS: I'll have it tabled to the witness.
PN679
Can you identify the position down the bottom?---Yes.
PN680
Is that the position referred to?---Yes.
PN681
And the date on the bottom, 11 July?---That's right.
**** JANE MARION KOELMEYER XXN MR CLEMENTS
PN682
That's the date it was advertised. And your memo to Mr Thomas is dated 29 July?---That's right.
PN683
So it's therefore safe to assume that this job was advertised before it was offered?---It was.
PN684
Now, are you aware of - I'll hand this up as well - this is an attachment to my submission, Commissioner, the redeployment redundancy policy of State Rail. If I can take you to page H15. Are you aware whether or not the merit selection process had started?---I'm not aware.
PN685
No further questions; sorry, one question. And you're sure the earlier, the document of 29 July which is the memo, are you sure you didn't sign that twice?---Definitely not. If I had written this letter again I would have changed the reducing time to the fixed and changed the position number and sent it again and I would have referred to my previous error.
PN686
And you can see at the bottom of both of those memos there is a date when it says it's printed?---Yes.
PN687
And they're both the same date; so both of those documents, does that mean that both would have to have been printed on the 29th of July?---I'm sorry but can I say this. You can actually put that letter, that footer at any time, anyone can put a footer in, it's not, it's something that you can put on.
PN688
Okay. So are you sure that you didn't sign two separate memos?---Definitely not.
PN689
No further questions.
**** JANE MARION KOELMEYER XXN MR CLEMENTS
PN690
PN691
MR SCHMIDT: I only want to clarify one thing. When you say you would have changed the document?---Yes.
PN692
How would you have changed it?---If for example Mr Thomas had said it's a different number and if I had to send him another letter, I wouldn't have changed it without actually retyping it and referring to it. I wouldn't send out another document like that, with fixed
PN693
- - -
PN694
With changes in handwriting?---Yes, I wouldn't do that.
PN695
No further questions.
PN696
PN697
PN698
MR SCHMIDT: Ms Dubinin, for the record, can you just state your job designation?---I am HR Support Officer.
PN699
Were you ever the Senior Personnel Officer?---Yes, I was.
PN700
When would that have been?---That would have been well before October last year, before the restructure and that.
PN701
So is it safe to say that you would have been Senior Personnel Officer Stations?---Yes.
PN702
Around the end of July?---Yes, that's correct.
PN703
Do you recall any telephone discussion with a Mr Thomas either in late July or subsequent?---To be quite honest, no I can't recall, it's too far back - six months ago. Too long ago.
PN704
Do you recall a recent discussion with Mr Thomas?---Yes, about three or four weeks ago I received a call from him. He asked me if there was his written acceptance letter on the file and he would like it faxed to him. I said I will go and have a look at the file. Looked around and came back and said I am sorry I am unable to locate your file. I said, maybe someone may have your file.
PN705
I would like at this point to show you a document - - -
PN706
THE COMMISSIONER: How long ago was that that Mr Thomas rang, did you say?---About three or four weeks ago approximately.
PN707
When did he ring - - -
**** MARIA DUBININ XN MR SCHMIDT
PN708
MR SCHMIDT: I might just provide the witness with the same documents that were provided to Ms Koelmeyer. Do you have them?---Mm.
PN709
If I can take you to the document of 29 July addressed to Mr Thomas, with the word "file" stamped on it?---Yes, that's right.
PN710
Have you ever seen that document before?---I would have seen the original one from Janet Koelmeyer, but not with the file stamped on it. I would have had the original from her, because it was my name - - -
PN711
And what did you do with that original document when you received it?---I would have read it, had a look at it, and then would have checked again the vacancy actually to make sure it was correct.
PN712
Right?---Then I would have waited to process then the transfer?---I see.
PN713
Who would advise you of the processing of the transfer?---Well it would be Janet Koelmeyer.
PN714
Did she ever do that?---Only by this letter. That's all I can recall.
PN715
If I take you to the second document which has Mr Thomas's annotation on it. Have you ever seen that document?---Yes, I would have seen that.
PN716
When would you have seen that?---Well, again, it would be the same date. To me would have been the same one. That's when I would have changed that reduce in time which I would change to the fixed - that is my writing. Yes.
PN717
What about below Ms Koelmeyer's signature. Have you ever seen that?---I can't recall actually. I can't recall seeing that.
**** MARIA DUBININ XN MR SCHMIDT
PN718
Is it possible that in terms of the handwritten changes that you made that you may have faxed the letter to Martin Place?---Again, I'm sorry I can't recall.
PN719
You can't recall.
PN720
THE COMMISSIONER: Is it possible you may have done that?---I may have, I may have, but I can't recall.
PN721
MR SCHMIDT: Do you recall ever receiving a copy in the mail back from Mr Thomas with his acceptance noted on the document?---I can't recall that, I'm sorry.
PN722
You can't recall?---Sorry, no.
PN723
Let me pose this to you. Had you received such a document what would you have done?---If I had received that document I would have went ahead with the process of transferring him to that position. That's providing when the rostering would release him.
PN724
Is it safe to assume then from your answer, that you never received that document?---I can't recall receiving it.
PN725
THE COMMISSIONER: The letter that everyone has been talking about. That's an offer of a position?---The original from Janet Koelmeyer?
PN726
Yes?---Yes.
PN727
And you are saying to me that yes, you did cross out reduce in time and you put fixed time?---Yes, I had put fixed, yes.
**** MARIA DUBININ XN MR SCHMIDT
PN728
But you didn't change the position number?---I did not change it, no.
PN729
That offer, is that not actioned unless you get an acceptance back?---That's right, we always wait for an acceptance from the employee concerned. Yes. I can't action it without their acceptance because I knew they like to change their minds.
PN730
Thank you. Mr Schmidt, anything arising?
PN731
MR SCHMIDT: Nothing.
PN732
THE COMMISSIONER: I think to be honest, Mr Clements, if he is going to ask questions, should ask before you, Mr Moon.
PN733
MR MOON: Yes, I'm sorry, Commissioner.
PN734
THE COMMISSIONER: On the last occasion that shouldn't have occurred, but I did ask you if there was anything else and you have indicated no. Mr Clements, do you have any questions?
PN735
PN736
In relation to the two memos you've got there?---Mm.
PN737
You say that you changed that?---Yes, I did, that is my writing.
**** MARIA DUBININ XXN MR CLEMENTS
PN738
Do you remember going and getting it resigned?---No, I never had it resigned.
PN739
Do you remember if it was signed?---It would have been signed, yes.
PN740
Do you remember if it had "file" down the bottom of it?---No, it wouldn't have had file.
PN741
Where did you get it from?---This one with the file.
PN742
The one that you changed, where did you get that document from?---It would have been from Janet Koelmeyer.
PN743
So you don't recall going and getting it from Janet Koelmeyer?---No, she would have handed it to me - without the writing his signature - that would be without his signature. Yes, I would have got that from Janet.
PN744
But it would have had Janet's signature on it?---Yes, yes.
PN745
Do you recall when this took place?---Well it would have been around that time, July. Again, it's a while.
PN746
Do you recall going and asking for the memo from Janet Koelmeyer?---No, I'm sorry, I can't recall, no.
PN747
No further questions.
PN748
**** MARIA DUBININ XXN MR MOON
PN749
MR MOON: Only a couple of questions. Where you have changed the reducing time to fixed, how did you come about to know to change that?---Perhaps this is where I double checked on the establishment and that's where I've noticed it should have been actually fixed because there are no reducing times.
PN750
Do you know that for sure or could you have spoken to someone else?---No, I usually check the establishment.
PN751
So that's how you came to change it?---Yes.
PN752
THE COMMISSIONER: Checked - I am sorry - checked - - - ?---Establishment, it's - - -
PN753
MR MOON: A listing?---Of all stations and vacancies on it.
PN754
You said that you spoke to Mr Thomas after he contacted you about three or four weeks ago?---Yes.
PN755
I put it to you that it was two weeks ago?---I think it was - I'm not sure, like I said maybe three or four weeks ago.
PN756
The week before last. Could it have been two weeks ago, the week before last, on 15th?---I'm only guess - I know it was - I can't be sure.
PN757
I just want to try to clarify it because the matter was here before the Commission for conciliation and there was concern about whether he had received an offer or not and he rang you and spoke to you to ask you if you had a copy of that offer?---Of that offer, yes.
**** MARIA DUBININ XXN MR MOON
PN758
Okay, so that wasn't last week but it was the week before?---I'm only guessing again, three or four weeks, I'm saying that - - -
PN759
But it could have been two weeks ago, could it not?---I'm not sure. I get a lot of phone calls.
PN760
Sure. Did you understand why Mr Thomas was being offered the position?---Not really. Janet dealt with most of these Job and Work and - - -
PN761
Did you know it was related to Job and Work Redesign?---Only reading from the letter.
PN762
So you only knew about it because of what you read in the letter?---That's all, yes.
PN763
THE COMMISSIONER: Could I just ask you, what made you change reducing time to fixed?---Because it was incorrectly shown as reducing time when it should have actually been a fixed position.
PN764
But you got the letter - - - ?---From Janet, yes.
PN765
And then what, you checked it?---Yes.
PN766
You checked it yourself?---Yes.
PN767
You saw that was incorrect so you crossed it out and put fixed?---I crossed that out myself, yes, and put fixed.
**** MARIA DUBININ XXN MR MOON
PN768
But then would you not have then sent that off to Mr Thomas?---I'm not sure if I - I can't recall if I faxed it or if it was sent, I can't recall that. I may have faxed it, I can't recall.
PN769
But if you change your job offer is it not standard that the person who is being offered the job receives a copy of the amended offer?---It could have been faxed to him at Town Hall.
PN770
But you would do that though, would you not? I mean, if you changed - - - ?---I would have, yes.
PN771
Just logic says to me you would not do it in isolation sitting in an office, change your job offer and put it on the file?---No, definitely not. I would have changed it and then I would have faxed it and then I would have or may have faxed it to him. I can't recall - - -
PN772
Some way you would have sent it to him?---Yes, one way, yes.
PN773
You don't remember a discussion about the job number, you didn't change the job number?---I didn't, no, that's not my writing.
PN774
Did you check the job number against the establishment - see, I'm starting to use your terminology?---That's all right. I would have, again I can't recall. Position numbers you can get from the Station Manager or from rostering office.
PN775
When a job is advertised does it have a position number on it?---It did not at that time.
PN776
It did not?---No. It just actually recently came in end of last year.
**** MARIA DUBININ XXN MR MOON
PN777
MR MOON: I only have one more question. Two more actually. Do you handle the acceptances of the positions?---Yes, I do.
PN778
Do you only receive them as e-mails or faxes or do you sometimes get them - - - ?---I can get both in fax - - -
PN779
What about dispatch?---Yes, dispatch or fax.
PN780
With their originals?---Yes, I could get them, yes.
PN781
You do get them as originals?---I can, yes.
PN782
PN783
MR SCHMIDT: Just one question on the receipt of those acceptances, just refresh me again, what is your practice then?---When I get the acceptance I put it on their file.
PN784
What happens to the person going to the position?---Again, that will be up to rostering. Once rostering informs me that they can release say, Tony, to Hurstville then I will process it on the MIMs.
PN785
I appreciate that but what I am trying to do is determine how rostering would be advised that Mr Thomas or anybody else has accepted it?---I would inform rostering.
PN786
But you didn't inform rostering?---No.
**** MARIA DUBININ RXN MR SCHMIDT
PN787
No further questions.
PN788
THE COMMISSIONER: Did that arise out of cross-examination?
PN789
MR MOON: No, it didn't.
PN790
MR SCHMIDT: Well, I thought it did in the sense that my friend asked does she receive the acceptances and I think I wanted to clarify what happens as a result of that but if there is a redress on that I'm relaxed about that but I thought unless I dealt with it earlier - - -
PN791
THE COMMISSIONER: I am glad you are relaxed about that, considering I determine the procedures. Mr Moon, anything in arising?
PN792
MR MOON: There was one point from that.
PN793
PN794
MR MOON: I think I am nearly near those four minutes I gave you. If you give an offer to someone and you have not received the response what do you do to follow that up?---Well, in this case, say if you didn't send anything I would refer it back to Janet saying, look Janet, I haven't received anything from him.
PN795
Then what would happen?---Well, Janet may have or would contact him or I might try to ring him myself, say look Tony, I haven't got your acceptance yes, what's going - - -
**** MARIA DUBININ FXXN MR MOON
PN796
Did you ring Tony?---I can't recall that.
PN797
No more questions, thank you.
PN798
PN799
THE COMMISSIONER: Mr Schmidt, is that your evidence?
PN800
MR SCHMIDT: That is the evidence.
PN801
THE COMMISSIONER: All you have now is your submissions?
PN802
MR SCHMIDT: Yes.
PN803
THE COMMISSIONER: Mr Clements, any evidence you wish to place before me?
PN804
MR CLEMENTS: No, Commissioner.
PN805
THE COMMISSIONER: Gentlemen, the matter is adjourned until Monday, 3 February at 2.30 and at that point I will hear submissions. Thank you.
ADJOURNED UNTIL MONDAY, 3 FEBRUARY 2003 [1.56PM]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #ASU1 ASU STATEMENT OF FACTS PN200
EXHIBIT #SRA1 STATE RAIL SUBMISSIONS WITH ATTACHED STATEMENT OF FACTS DATED 28/01/2003 PN201
EXHIBIT #RTBU1 SUBMISSIONS WITH ATTACHMENT PN202
EXHIBIT #ASU2 STATUTORY DECLARATION PN234
ANTHONY MARK THOMAS, SWORN PN302
EXAMINATION-IN-CHIEF BY MR MOON PN302
EXHIBIT #ASU3 STATEMENT OF ANTHONY MARK THOMAS PN331
CROSS-EXAMINATION BY MR SCHMIDT PN410
CROSS-EXAMINATION BY MR CLEMENTS PN481
WITNESS WITHDREW PN524
JANE MARION KOELMEYER, SWORN PN599
EXAMINATION-IN-CHIEF BY MR SCHMIDT PN599
CROSS-EXAMINATION BY MR MOON PN637
CROSS-EXAMINATION BY MR CLEMENTS PN673
RE-EXAMINATION BY MR SCHMIDT PN691
WITNESS WITHDREW PN697
MARIA DUBININ, SWORN PN698
EXAMINATION-IN-CHIEF BY MR SCHMIDT PN698
CROSS-EXAMINATION BY MR CLEMENTS PN736
CROSS-EXAMINATION BY MR MOON PN749
RE-EXAMINATION BY MR SCHMIDT PN783
FURTHER CROSS-EXAMINATION BY MR MOON PN794
WITNESS WITHDREW PN799
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