C2004/4552, Transcript of Proceedings [2004] AIRCTrans 2956 (30 July 2004)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 12537

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DRAKE

C2004/4552

CPSU, THE COMMUNITY AND PUBLIC
SECTOR UNION

and

AUSTRALIAN BROADCASTING CORPORATION

Application under section 170LW of the Act
for settlement of dispute re alleged failure
to correctly apply provisions of part F of
the agreement

SYDNEY

10.42 AM, WEDNESDAY, 21 JULY 2004

PN1

THE SENIOR DEPUTY PRESIDENT: Could I have the appearances please?

PN2

MR G. THOMSON: I appear for the Community and Public Sector Union.

PN3

MR L. CARUSO: Your Honour, I'm representing the ABC and with me is MR C. NAYLOR.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN5

MR THOMSON: I think probably the best place to start is that before these proceedings I had a discussion with Don Smith who is Luke Caruso's supervisor/manager about the conduct of today's proceedings. I suggested to Don and I sent an email to the effect that we in fact exchange outlines of submissions before the case, so we have a clear idea of what we are going to be doing today. We did that. The ABC sent submissions back to us because it was delayed and their witness evidence only came through yesterday but notwithstanding that we can run a full case today.

PN6

In the discussions I had with Don, we said that there might be some value in conciliation but both of us agreed that given that this matter has been dealt with extensively we have had endless meetings, that the prospect of a successful conciliation is probably pretty limited. having said that, I wouldn't mind just very quickly giving a very rough ideas of what the matter is about.

PN7

THE SENIOR DEPUTY PRESIDENT: Do you want me to reach the exchanged submissions, would that be of assistance?

PN8

MR THOMSON: Yes.

PN9

THE SENIOR DEPUTY PRESIDENT: If I do that first I will have a better idea what you are talking about altogether. What I have handed up is the CPSUs outline of submissions with an attached witness statement from Kirsten Garrett, the ABCs outline of submission and a witness statement by Greg Cullen. Together with that is the initial email I sent to Don Smith in which I talked about the conduct of matters today.

PN10

THE SENIOR DEPUTY PRESIDENT: Thank you. How long should it take me to read these if I am a fast reader?

PN11

MR THOMSON: There is not a lot of weight in them, probably ten minutes. The CPSU has altered some of its submissions since that outline.

PN12

THE SENIOR DEPUTY PRESIDENT: All right, you can tell me that when you come to it.

PN13

MR THOMSON: Yes, most of the facts are laid out there.

SHORT ADJOURNMENT [10.46am]

RESUMED [11.02am]

PN14

THE SENIOR DEPUTY PRESIDENT: We will go back on the record. Mr Thomson, I've read the submissions, the CPSU submissions and the statement of Kirsten Garrett which is attached. What other evidence do you intend to rely on in the statement.

PN15

MR THOMSON: Some of the other evidence I have got is, most of it is in fact written, it's correspondence.

PN16

THE SENIOR DEPUTY PRESIDENT: Do you intend to call Mr Kumar?

PN17

MR THOMSON: No, I was going to call Mr Hatter very briefly. He attended one of the meetings.

PN18

THE SENIOR DEPUTY PRESIDENT: Is there any intention to cross-examine Ms Garrett?

PN19

MR CARUSO: Not today from the ABC, your Honour.

PN20

THE SENIOR DEPUTY PRESIDENT: All right, no one else will be doing it. So the case for the union is the affidavit of Kirsten Garrett and some documents which you intend to tender and you intend to speak to your outline of submissions.

PN21

MR THOMSON: That's right, plus evidence from Mr Hatter.

PN22

THE SENIOR DEPUTY PRESIDENT: Mr Caruso, what is your case?

PN23

MR CARUSO: Well, we will be relying on the evidence that we've submitted which you have received a copy from Mr Cullen.

PN24

THE SENIOR DEPUTY PRESIDENT: Do you intend to cross-examine Mr Cullen.

PN25

MR THOMSON: No, your Honour.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes, anything else.

PN27

MR CARUSO: Depending on what further submissions Mr Thomson may have.

PN28

THE SENIOR DEPUTY PRESIDENT: It seems to me, Mr Caruso, there ought to at least be an agreed list of documents here. I don't have any of the outcomes of the investigations, the decisions of the panel or the decisions of Mr Palmer or any others. Do you have - - -

PN29

MR THOMSON: I have them all.

PN30

THE SENIOR DEPUTY PRESIDENT: Do you want to hand them up now. If you want to hand them up as a bundle that will be fine. do you know which documents they are. I will go off the record while you do so.

SHORT ADJOURNMENT [11.06am]

RESUMED [11.20am]

PN31

THE SENIOR DEPUTY PRESIDENT: The exhibits so far are, for the record, the affidavit of Kirsten Garrett which is really more of a statement probably, in any event unchallenged by cross-examination; CPSU1, a bundle of documents tendered by the CPSU which include an ABC information sheet, a letter from Mr Kumar to Mr Colin Palmer dated 14 May 2003, a performance agreement received on 14 February 2003, performance agreement received on 16 September 2002, the report from the panel hearing the appeal of Mr Kumar dated 16 September 2003, a letter from Mr Palmer to Mr Kumar dated 24 September 2003 and an email from Mr Palmer to Mr Thomson dated 28 June 2004.

PN32

In addition, the submissions of the CPSU will be CPSU3,

EXHIBIT #CPSU3 SUBMISSIONS OF CPSU

PN33

THE SENIOR DEPUTY PRESIDENT: A statement of Mr Greg Cullen will be ABC1. A document and letter from Mr Charles Naylor to Mr Stuart Hatter dated 12 May 2003 will be ABC2 and the outline of submissions from the ABC will be ABC3.

EXHIBIT #ABC1 STATEMENT OF MR G. CULLEN

EXHIBIT #ABC2 DOCUMENT AND LETTER FROM MR C. NAYLOR TO MR S. HATTER DATED 12/05/2003

EXHIBIT #ABC3 OUTLINE OF SUBMISSIONS FROM ABC

PN34

THE SENIOR DEPUTY PRESIDENT: Do you wish to proceed directly to the evidence of Mr Hatter.

PN35

MR THOMSON: Yes.

<STUART HATTER, AFFIRMED [11.21am]

<EXAMINATION-IN-CHIEF BY MR THOMSON

PN36

MR THOMSON: Stuart, could you tell the Commission what position you hold at the CPSU?---Branch organiser, ABC Section.

PN37

Have you attended any meetings with David Kumar?---Of particular relevance to this, yes I have, I have attended a couple.

PN38

When is the first meeting you have attended?---10/1/02.

PN39

Could you clarify that date?---Sorry, 03, beginning of 03, sorry.

PN40

Did you attend a number of meeting or just one?---I attended one on that day and then there was a subsequent meeting afterwards.

PN41

Who was at that meeting?---David, myself and Steven Squire who was the stand-in manager for Tech Services, New South Wales, at the time.

PN42

Who called that meeting, do you recall?---I'm pretty sure it was Steven because of complaints about a upcoming job plan.

PN43

Could you tell me what happened at that meeting or tell the Commission what happened at that meeting?---Yes, well, both David and I went and met Steven and ultimately we had a problem with the level of the job plan that was about to be set and also, the one, the previous job plan because we were of the view that David was working at a Band 6 Level, as opposed a Band 5 which is what the job plan had indicated, so yes, basically we outlined to Steven his work of the past, you know, the months just before and the level of that, we went through some referees, some good referees which provided evidence of the work he was doing, as an indication of what he would probably have to do in the future.

PN44

The job plan that you say that you were talking about, that there may have been a dispute about, what was the job plan that we are talking about, for what period was the job plan meant to be set?---The new one?

**** STUART HATTER XN MR THOMSON

PN45

Well, you are telling me?---Sorry because we were talking about a post job plan as well, I mean, obviously we believed David was working above the level of his past job plan and that is probably an indication of the future one but the new job plan, I haven't got the exact dates here for that but I think some of them had already started occurring.

PN46

Are you aware of David Kumar's performance cycle, when it starts and finishes each year?---Not from memory, sorry.

PN47

Do you recall whether or not you were dealing with a job plan that was upcoming or was it a job plan that David was in the middle of?---Look, I'm shaky, I'm sorry, the job plan, it was either about to commence or my memory says, it was already commenced, he had already started working through it but, like, I can't remember that detail. You know, job plans are nearly always already - people usually get the job plans after they have already completed them so, you know, it's not something that was out of the ordinary.

PN48

What I would like then for you to tell me then is what actually happened at the meeting in terms of what was Mr Squire's response to the request for the job plan to be set at Band 6?---Well, see, we started out - as I was saying we started out talking about the period before this job plan for good reason because as I believed, you know, it was an indication that David had to do Band Level 6 work in the past, it was an indication he'd probably still need to do it. So Steven was quite responsive to that because there was a period where the manager before Steven had to come in a stand-in manager was just not on deck; I don't know where she was but she wasn't ever around. I think she was sick or something, she eventually resigned, and the running of Tech Services, New South Wales, was left to a few people including David and so David had to carry the can and that was noted at the time that David was basically running the department and his referee reports said that. So Steven, of course, could only say at the time, yes, that's really good, you know, that was a good period, you know, I do recognise these referee reports, you know, and, thanks. He - unfortunately then when I said, well, you know, you've ripped him off, like, you should have paid at Band 6 then, unfortunately, David - unfortunately, Steven said, no, I expect, you know, my staff to show initiative and, you know, and work at the higher level basically for

**** STUART HATTER XN MR THOMSON

free, you know, before I will ever, you know, start promoting them, and what have you. So we had a bit of an argument about that but Steven, like, as - when we were talking about the past Steven was quite receptive, like, he knew David had done a very good job. He'd been given an "E" for exceeds requirements, you know, in any event.

PN49

By whom - - -?---By the prior manager.

PN50

MR CARUSO: I am sorry, your Honour, I'm not sure where this is taking us. I thought we were here to discuss the appeal panel and the delegate's recommendation or rejection of that recommendation. I don't know what relevance Mr Hatter's - - -

PN51

THE SENIOR DEPUTY PRESIDENT: I don't know yet either. I'm not sure in fact what is going to be asked of me arising out of this application, I haven't heard those submissions yet so we'll just let him go for a little while. If it's irrelevant in the end it's irrelevant. Since all the documents are in now I don't think it's going to be a long matter in any event so it won't delay it.

PN52

MR CARUSO: Thank you, your Honour.

PN53

THE WITNESS: Sorry, can you remember what I said just lastly?

PN54

MR THOMSON: My understanding is that - - -

PN55

THE SENIOR DEPUTY PRESIDENT: You said he'd already just received and exceeds requirements - - -?---That's right, yes, he'd been given - sorry, to complete the answer; Steven was quite receptive about his past work, however, when it came to talking about the new job - well, the job plan, the live job plan, Steven was totally different, like, he said, look, there's only room for one Band 6 in this department, that's all we've got budget for and that's that, it's as simple as that. I think - he said that Casher's got the job and David you're Band 5 and that's simple as that, you know. No matter how much - I mean, you argue and say,

**** STUART HATTER XN MR THOMSON

yeah, but you'll still be required to do the capital works and all these other things, like, you know, Stephen said, no, he won't be doing that, it's as simple as that, he's Band 5. So whilst he was quite positive when he was talking about the next job plan he's basically said, no, work required is only Band 5. He did say though when we said, look, this is pretty unfair for David, he has put in and he's carried the can for this department and he didn't need to, he didn't get paid for it, he did say, look, I can't give you a Band 6, as simple as that, I'm not going to and - I'm not going to do that, and to be honest even at the end of this appraisal, this next appraisal coming up, you know, you might even get an "E" but you're not going to get any more pay out of it, mate, sorry mate, you're not even going to get any more pay out of it because you're at the top of the band, you know. So he was quite - he was still quite positive even talking about their future job plan but not - not as positive enough as far as putting him it up a band, if you know what I'm saying.

PN56

MR THOMSON: Did anything else of note occur at that meeting?---Well, yes, yes.

PN57

Did you take notes of this meeting?---Yes, I've got notes here.

PN58

I understand you've got notes in the witness box. Is that acceptable?

PN59

THE SENIOR DEPUTY PRESIDENT: Unless Mr Caruso has some objection I don't. You might like to look at them at some stage.

PN60

MR CARUSO: I would rather look at them.

PN61

THE WITNESS: Only these notes, okay.

PN62

MR THOMSON: Mr Hatter, do you need to rely on these notes?---There's a part in there that was particularly - yes.

**** STUART HATTER XN MR THOMSON

PN63

MR CARUSO: No objection, your Honour.

PN64

THE WITNESS: What I - when we were angling for David to get the Band 6 work - to get recognised at Band 6 because we believed he was doing Band 6 work and he would be required to again - very surreal - it's - at the time of the meeting it actually changed and I wrote it down particularly because I thought he was skating on thin ice, Mr Squire was, he actually then broke out and pointed out David's age, he said, like, you're 65 years this year aren't you, I believe, when do you want to go, and that to me particularly freaked me out that here's this guy pushing to get a level 6 and David's been - Steven's been saying, look, there's no room for another 6. He's basically said, look, you know, you're not going to be around anyway, why would I promote you in any event. So that was a - to me that was something but that probably a discrimination issue and it might not be relevant to this but that was something I wrote down that was, like, a concern.

PN65

MR THOMSON: That is not one of the grounds of our claim. Did Mr Squire raise questions about David's performance at that meeting?---Only in a positive, no - yes, as I said, only positive. We had all those - - -

PN66

Yes or no, sorry?---Yes, he did.

PN67

What did he say?---Well, he thanked him, he thanked him. When we were reading these referees from managers, you know, from other departments, Classic FM was one from memory, you know, Newcastle, he said it was a good thing, like, he basically thanked him but then, unfortunately, reminded him he's probably not going to be able to get any money out of it, but it was all good, very, very good. There was nothing else he could do because it was all - we had the referees, he - David was doing a good job, well, we were pushing to be Band 6.

PN68

Did you have any other meetings with Mr Squire? Is there anything else you'd like to report about that meeting?---No.

**** STUART HATTER XN MR THOMSON

PN69

Did you have any other meetings with Mr Squire?---Yes, I did, there's notes. Do you want to look at them, Luke?

PN70

MR CARUSO: No, that's fine.

PN71

THE WITNESS: Because I'll give you the date as well. Sorry. Yes, and then we had another one on the 13th.

PN72

MR THOMSON: Sorry, 13th of?---Of February '03. I've written '03 this time.

PN73

Could you clarify at the previous meeting anything happened?---10th the 1st, '03. It wrote '02 because I was still thinking it was '02 because of the change of the year. So 13; now, that was a meeting - that was a totally different meeting, like, it was absolutely totally different. That meeting was - we went to the meeting because they wanted to talk about a performance improvement plan for David as a result of him getting a "U", like, a "U" for unsatisfactory in his appraisal, you know, and what's that a month and two days - three days before we were talking about a "P" and I don't how much - you don't want to hear about the whole meeting but, you know, I actually get pretty grumpy because it was, like, you know, Steven, what's going on here, you said nothing of this before, you know. I was really, really annoyed because I saw it as an absolute try on and I believe that now anyway but that's my opinion but we then - - -

PN74

What do you mean by "try on"?---Well - well, it seemed strange that one minute we're looking for a "P" and we were going to continuously push for a "P", one month later on that manager gives him a "U", you know, so he's gone from an "E" the preceding appraisal to a "U", you know, and I thought, just the way I - you know, just experience around the ABC that that was like an ambit, you know, if you know what I'm saying. Like, he's saying, well, he's - you know, we'll fight that by giving you a "U".

PN75

No further questions.

**** STUART HATTER XN MR THOMSON

PN76

MR CARUSO: Your Honour, can I ask for a quick 10 minute break because I didn't know Mr Hatter was going to be on the stand this morning.

PN77

THE SENIOR DEPUTY PRESIDENT: Sure.

PN78

MR THOMSON: I would just like to gather my thoughts.

PN79

THE SENIOR DEPUTY PRESIDENT: But you have to have 20 because I want to have a cup of coffee.

PN80

MR THOMSON: 20 will be fine.

SHORT ADJOURNMENT [11.36am]

RESUMED [12.06pm]

PN81

THE SENIOR DEPUTY PRESIDENT: Mr Caruso?

PN82

MR CARUSO: Thank you, your Honour. I would just like to make the point, as I was saying earlier, we were not made aware that Mr Hatter was going to provide evidence this morning and he has made references to a number of meetings that Mr Steven Squire was present at. On that basis if Mr Hatter's evidence is going to be taken into account we would like the opportunity for Mr Squire to provide evidence as well. Unfortunately, Mr Squire is no longer in that job and he's actually located in Melbourne so it would be difficult for us to get him here today so that's the point I'd like to make.

PN83

THE SENIOR DEPUTY PRESIDENT: I think it's perfectly appropriate that you would want to do so; it's a matter for you. I am happy to give you another day. Where are you located? Sydney?

**** STUART HATTER XN MR THOMSON

PN84

MR CARUSO: Yes.

PN85

THE SENIOR DEPUTY PRESIDENT: So bring him up instead of everyone down?

PN86

MR CARUSO: Yes.

PN87

THE SENIOR DEPUTY PRESIDENT: All right. Do you want to ask him any questions? I suppose the difficulty is it's difficult to cross-examine him without instructions from Mr Squire; is that not your problem?

PN88

MR CARUSO: Yes, that's right, I would find that very difficult.

PN89

THE SENIOR DEPUTY PRESIDENT: I told my associate we didn't need my diary and yet again I am wrong.

PN90

Mr Hatter - - -?---You don't want to cross - - -

PN91

MR CARUSO: No, not yet.

PN92

THE WITNESS: Not yet? I'm out of here.

PN93

THE SENIOR DEPUTY PRESIDENT: What we have here is an application for adjournment on the basis of obtaining instructions from Mr Squire and calling him in response to the evidence of Mr Hatter. This matter only requires half a day in my view, no matter what. When is your next available day; we will start with you, Mr Thomson?

**** STUART HATTER XN MR THOMSON

PN94

MR THOMSON: Tomorrow.

PN95

THE SENIOR DEPUTY PRESIDENT: I'm going to a funeral in the afternoon, that would be difficult, but Friday morning is okay with me.

PN96

MR THOMSON: That will be fine.

PN97

MR CARUSO: The difficulty is getting a hold of Mr Squire I suppose at such short notice.

PN98

THE SENIOR DEPUTY PRESIDENT: It's only Melbourne, it's an hour and 15 minutes.

PN99

MR CARUSO: Okay, at this stage let's say Friday.

PN100

THE WITNESS: As long as he's in - - -

PN101

THE SENIOR DEPUTY PRESIDENT: Why don't you go and call him? I will wait for you.

PN102

MR CARUSO: Yes?

PN103

THE SENIOR DEPUTY PRESIDENT: Do you want to call him? You can have Friday morning or you can have Tuesday afternoon; Friday morning is better for me though, I have nothing else on.

PN104

MR CARUSO: Let me try Mr Squire.

**** STUART HATTER XN MR THOMSON

PN105

THE SENIOR DEPUTY PRESIDENT: I will wait. We will go off the record and we'll wait.

PN106

MR CARUSO: Thank you.

PN107

THE SENIOR DEPUTY PRESIDENT: I would like to get this matter finished this week if I could but it's not that, you know, Mr Kumar's employment is not in danger. We've also got all of Friday week available, that is the 30th so either tomorrow morning or the 30th I suppose would be best for me.

PN108

MR CARUSO: Okay, I'll try and get Mr Squire.

PN109

THE SENIOR DEPUTY PRESIDENT: I'll wait. We will go off the record, thank you.

<THE WITNESS WITHDREW [12.09pm]

NO FURTHER PROCEEDINGS RECORDED [12.09pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CPSU3 SUBMISSIONS OF CPSU PN33
EXHIBIT #ABC1 STATEMENT OF MR G. CULLEN PN34
EXHIBIT #ABC2 DOCUMENT AND LETTER FROM MR C. NAYLOR TO MR S. HATTER DATED 12/05/2003 PN34
EXHIBIT #ABC3 OUTLINE OF SUBMISSIONS FROM ABC PN34
STUART HATTER, AFFIRMED ........................................ PN36
EXAMINATION-IN-CHIEF BY MR THOMSON PN36
WITNESS WITHDREW PN109