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Australian Industrial Relations Commission Transcripts |
AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825
Level 10, 15 Adelaide St BRISBANE Qld 4000
(PO Box 13038 George Street Post Shop Brisbane Qld 4003)
Tel:(07)3229-5957 Fax:(07)3229-5996
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER BACON
C2004/3391
QUEENSLAND LOCAL GOVERNMENT OFFICERS' AWARD
Application under Section 113 of the Act
by the Australian Municipal, Administrative,
Clerical and Services Union to vary the above award
re various clauses
BRISBANE
9.38 AM, THURSDAY, 16 DECEMBER 2004
Continued from 15.12.04
PN3211
THE COMMISSIONER: Mr Watson.
PN3212
MR WATSON: May it please the Commissioner, I don't think there are any preliminary matters. We might just go straight into my next witness: that is Mr Ian Flint.
PN3213
THE COMMISSIONER: Certainly.
PN3214
PN3215
MR WATSON: Mr Flint, your full names are Ian Charles Flint?---That's correct.
PN3216
And you're the Chief Executive Officer of the Boonah Shire Council, whose offices are situated at 70 Hyde Street, Boonah, in this State?---That's correct.
PN3217
For the purposes of these proceedings, Mr Flint, have you prepared a statement?---I have.
PN3218
Do you have a copy of that statement with you?---I do.
PN3219
Can you have a look at this document which I'm about to have shown to you? Is that the original statement you've signed in these proceedings dated 5 November 2004?---Yes, it is.
PN3220
PN3221
MR WATSON: Now, Mr Flint, have you also been shown a statement of David Charles Smith dated 2 December 2004?---Yes, I have.
PN3222
And that statement was a statement which came in after your statement had been prepared?---Yes.
PN3223
Now, can you just go to paragraphs 36 and 37 of that copy of that statement I think you have?---Yes, I have a copy here. Yes.
**** IAN CHARLES FLINT XN MR WATSON
PN3224
All right. Do you wish to make any comment about those paragraphs?---Only to the effect that in our situation it's a matter where the library was manned by volunteers and now it's very hard to keep that volunteer basis going, so we're very much in a matter of making those people now casual employees, and the incentive to do that is not as attractive with the penalty rates that are involved, and even less attractive to make them part time because of the 10 per cent loadings and other penalties that are involved. If those penalties weren't there we'd be more likely to employ permanent part-time people at our library and cultural centre and other operations.
PN3225
How many casuals do you have at the moment?---There's only about half a dozen between the library and the cultural centre would be the main places.
PN3226
And what's the length - what's the longest length of service of any of those casuals?---They've only been no more than a couple of years in most cases. Most of them are very recent; this year, actually. As I said, they used to be volunteers.
PN3227
Yes. I have no further questions.
PN3228
PN3229
MS HEAP: Good morning, Mr Flint. Can I provide to the witness a copy of - unless he's got it there - the Boonah Shire Council Certified Agreement?
PN3230
Do you have a copy of that with you?---I don't, no.
PN3231
Mr Flint, is that the current certified agreement which applies at Boonah Shire Council?---I believe so, yes.
**** IAN CHARLES FLINT XXN MS HEAP
PN3232
Commissioner, I tender that certified agreement in these proceedings.
EXHIBIT #ASU12 BOONAH SHIRE COUNCIL CURRENT CERTIFIED AGREEMENT
PN3233
MS HEAP: Mr Flint, that certified agreement was negotiated this year, is that correct?---I believe so, yes.
PN3234
And certified on 20 July 2004?---Yes.
PN3235
And it runs until 30 June 2006?---Yes.
PN3236
Can I just take you to clause 1.13 of that certified agreement?---1.13.
PN3237
The Local Area Agreements?---Yes.
PN3238
As I understand it, that's a provision within your enterprise agreement that allows for local flexibilities to be achieved in specific work areas of council based on improvements of efficiency or council needs, is that correct?---It's been a while since I've read this, but I believe that's the case.
PN3239
Is that the general intention behind local - - -?---That was the intention, yes.
PN3240
And have you utilised this provision at the council?---We haven't been able to utilise it as fully as intended. This is not the full scope that we did want to have in the agreement, but it wasn't able to be got through the Commission previously. We were trying to negotiate time in lieu arrangements over overtime etcetera, and they didn't end up being in the agreement. So we haven't been able to use this because it didn't go as fully as originally intended.
**** IAN CHARLES FLINT XXN MS HEAP
PN3241
Right. But this provision within the agreement allows for you, as I understand it, to have discussions at the local work area around implementing flexible work arrangements suited to the needs of the working group or the task, is that correct?---Yes.
PN3242
And there's a requirement that where employees are directly affected, "The council mutually agree on the need for such flexible working arrangements and the following process shall be applied," and it sets out the processes, is that correct?---Yes.
PN3243
And you've got to consult directly with the employees affected and local management?---That's correct.
PN3244
You've got to present it to the enterprise bargaining team, and where they require a variation to the award or the agreement, the parties shall seek a variation of the agreement to have it registered in the Industrial Relations Commission, is that correct?---Yes.
PN3245
And you're saying that you've had trouble getting local work area agreements registered in the Commission, is that correct?---I'm not aware of that. I'm just saying we had trouble getting the original agreement - this agreement - to the full extent that we were looking for at the time.
PN3246
In the negotiation process?---Yes, in the process.
PN3247
You were looking for more flexibility?---There was agreement between - the unions originally agreed and our employees agreed to something more than this, but this is how it got through.
PN3248
The Commission didn't agree, for a technical - - -?---That's correct.
**** IAN CHARLES FLINT XXN MS HEAP
PN3249
Right, okay. Did you have an agreement like - was that because there was a concern that it didn't meet the no disadvantage test?---I'm not sure of the details. It's some time ago since - and I'm not directly involved with that, but I believe that was the case.
PN3250
All right. This provision - a provision like this was in a previous agreement, is that correct?---Not previously, no. It was something we - we'd been trying to take it to more than what was there originally, and certainly the proposals that LGAQ is putting forward is trying to take us to where we wanted to go.
PN3251
So rather than actually negotiating these matters on the ground with the employees, you prefer to have the award varied to do that?---Yes, it would be easier, because it would obviously negate that need to negotiate. But obviously we'd still need to negotiate between the management and employees as to how the award would be carried out.
PN3252
But provisions which just reduce the entitlements of employees don't require - if you're in the award - don't require negotiation, do they?---We're not in the business of reducing entitlements to employees, and certainly that would - we certainly would adhere to that.
PN3253
Right. And - - -?---It's about - - -
PN3254
- - - you're interested in scenarios where there is a benefit for the employee and a benefit for the council?---That's correct.
PN3255
And that's the intention behind these types of provisions?---That's correct, and what the LGAQ is proposing takes it a step further, I believe.
**** IAN CHARLES FLINT XXN MS HEAP
PN3256
What sort of benefits would you normally be talking of with employees if they agreed to flexibilities?---Well, as my statement says, it's more a matter of having more flexibility to offer more sustainable employment to employees if there was no restrictions on the part-time employment such as the 10 per cent loading, such as the confinement of the time before it becomes permanent employee, etcetera. At the moment there's really not much discretion there for management and staff to negotiate outside of those fixed penalties, shall we say.
PN3257
But would you be saying if people were negotiating outside of penalties, if they were agreeing to give up penalties, they should get some direct benefit for that as well?---There certainly would be some benefits to be added such as, for instance, being able to have access to a work vehicle, for instance, rather than being paid extra time - those sort of issues that we were looking at.
PN3258
Right. So there would be direct employee benefits?---There would be direct employee benefits.
PN3259
Weighing up the flexibilities they give?---Correct. Correct.
PN3260
And one presumes that that's the way you'll use this provision, the Local Areas Agreements provision?---Yes. Yes, that's right.
PN3261
And I think you said you haven't had a chance yet to use that provision?---It doesn't go as far as we would like to - as the award being changed would allow us to go.
PN3262
Yes, but you haven't had - you haven't utilised this provision, is that right?---I am not directly aware of a case where we have.
PN3263
So you might - you talked before about the flexibility. I think you were talking about in libraries and art galleries, and things like that?---Cultural Centre, yes.
**** IAN CHARLES FLINT XXN MS HEAP
PN3264
Cultural Centre. And wouldn't that be areas where you could approach the staff and talk to them about discrete arrangements at that local level?---Yes. But they're only casual employees at the moment. I was talking more about the part-time or the more permanent employees, which is where this was meant to be picking up. The casual employees are more engaged on an as-required basis for the work involved, so it's not a more permanent arrangement as would be envisaged applying - the superannuant would apply to.
PN3265
Right. So you're saying that you wouldn't apply this provision where there are casual employees, but you would apply it where there are part-time employees?---Part-time, yes, more likely to than casuals.
PN3266
But there's nothing stopping you from applying where there's - - - ?---Nothing stopping us to, no.
PN3267
Can I take you down to clause 1.14, span of hours of your agreement?---Yes.
PN3268
And the span of hours in the agreement is a general span of hours from 5 am to 7 pm; is that correct?---Yes.
PN3269
That's ordinary hours worked at the Council for all employees?---Yes.
PN3270
And so that's a major flexibility for the organisation, isn't it?---Yes, it is, but it doesn't cover the situations of a cultural centre, for instance, where we have functions at night.
PN3271
But you do accept that it is a major spread of a span of hours?---It is, yes.
PN3272
Of ordinary hours of Council?---Yes. It covers the majority of our employees.
**** IAN CHARLES FLINT XXN MS HEAP
PN3273
The majority of your employees. Right. Did you say all of the employees at the Cultural Centre are casuals?---Most of them are. There are some paid employees there.
PN3274
Paid employees. I presume the casuals are paid also, Mr Flint?---They are, yes. I mean - permanent employees, I should say. My apologies.
PN3275
And you haven't done a local work area agreement for the Cultural Centre?---No.
PN3276
Can I take you to clause 2.1 of your agreement?---Yes.
PN3277
Is this the time of in lieu provision that applies to all of your employees?---I believe so.
PN3278
And it's designed to provide a flexible arrangement for where employees are working overtime, instead of being paid overtimes rates they accumulate time off in lieu; is that correct?---Our State award employees, yes.
PN3279
Sorry?---For the State award employees, yes.
PN3280
What about for the Federal award employees?---I'm not sure if this applies to all our employees, or just the State award employees.
PN3281
Oh, I see. There's a funny little heading at the top.
PN3282
Part 2 provisions relate to State award employees.
**** IAN CHARLES FLINT XXN MS HEAP
PN3283
?---Yes. My understanding is it doesn't apply across the whole organisation.
PN3284
Okay. If I take you to clause 3 of your agreement, "Measures to achieve gains in productivity and efficiency," it says "above" on my copy, quite comically, "Fart 3", but I presume it's "Part 3"; is that correct?---Part 3. Yes.
PN3285
MR WATSON: My says Part 3.
PN3286
MS HEAP: Does it? I've got the formal Commission certified document, so that's very interesting.
PN3287
THE WITNESS: Mine says Part 3 here.
PN3288
THE COMMISSIONER: As does mine.
PN3289
MS HEAP: This is the time off in lieu provision that applies to employees other than the officers in the library at High Street; is that correct?---That's right.
PN3290
And can I take you to clause (v) of that?---Yes.
PN3291
Continuing:
PN3292
Accrued or banked time not taken within six months of its accrual must be taken as soon as possible.
PN3293
?---By agreement.
**** IAN CHARLES FLINT XXN MS HEAP
PN3294
Yes -
PN3295
By agreement with this supervisor, or paid out at the appropriate penalty rates.
PN3296
Is that correct?---That's correct.
PN3297
So the system that you have in place at Boonah is, you take it or you get it paid out?---By agreement, yes.
PN3298
Well, you take it at an agreed time, or you get it paid out?---Yes.
PN3299
Is it important, from your point of view, that people who have worked the hours either get the time off or they get paid for those hours?---Ideally, we'd rather see them take the time off because it would be saving for us if that was the case, but in a small shire, particularly, the workloads often don't allow that to happen, so we recognise that, provided the employee puts their hand up and says that they want the time off and, if they can't, well, we pay them out.
PN3300
Yes. But, certainly, the employees get compensation for the work that they've done, the hours that they've done?---Certainly.
PN3301
And then there's a provision, I think, for staff based at Boonah Shire Council offices and library, so that the offices' and the library people are exempted from the provision that we just spoke about?---Yes.
PN3302
And there's a separate provision for the people in the offices and the library; is that correct?---I believe so. I'm just not sure what section - - -
**** IAN CHARLES FLINT XXN MS HEAP
PN3303
And that's in section 3.2?---Right. Yes.
PN3304
And, again, if you go to (v), it has the same sort of provision?---Yes.
PN3305
If it's not taken within six months, it's as soon as possible by agreement - taken as soon as possible by agreement, or it's paid out at penalty rates?---That's correct.
PN3306
Mr Flint, can you just remind me of how many casuals you said you had at - - - ?---I believe we have about half a dozen.
PN3307
All right. And the length of service of those people?---I don't believe there's anyone longer than a couple of years. Mostly they're 12 months or so, in the field of the Cultural Centre/library, particularly, I'm talking about.
PN3308
So a couple of years or so, basically?---Yes. That's correct.
PN3309
And were the people who you described as volunteers the people who became casual employees?---In most cases. There were a couple of other people that had been brought in since.
PN3310
And as I understand what you're saying, you said that the major problem in converting them to part-time was the 10 per cent loading; is that correct?---The 10 per cent loading and the other penalty restrictions of time of employment, etcetera.
PN3311
Mr Flint, do you accept that part-time employees should be - should be no worse off for ordinary hours worked as their full-time colleagues?---Yes, I do. Where I'm coming from is we're more likely to have them as full-time employees if it was more attractive for us to employ them.
**** IAN CHARLES FLINT XXN MS HEAP
PN3312
You mean, ongoing employees rather than full-time?---Correct.
PN3313
So if the span of ordinary hours for a full-time employee is, in your case, between five and seven, would you accept that the span of ordinary hours for part-time employees should be within that context as well?---Depends on the work situation we're talking about. Some situations, such as the Cultural Centre, we have evening functions where they would be outside that span of hours.
PN3314
I'm not talking about a particular - as a general principle, part-time employees, because they're part-time - - - ?---Yes.
PN3315
- - - regardless of where they're working at the moment, shouldn't have a span of hours that's - ordinary hours that's worse than their full-time colleagues?---Not necessarily, no.
PN3316
No. And the point that you make is that you might want the flexibility in certain circumstances to do different arrangements?---Correct.
PN3317
And the provision of your agreement is how you could do that in this scenario?---It just doesn't go far enough.
PN3318
According to you.
PN3319
THE COMMISSIONER: How do you mean it doesn't go far enough?---It doesn't - Commissioner, it doesn't allow arrangements between management and employees that could, for instance, do away with the 10 per cent loading and offer additional hours to them that we would normally - would now be forced to offer it to a casual employee rather than extend the part-time employment hours, because of those restrictions of extra pay - extra penalty with that 10 per cent loading. That's the main reason. And we can't, obviously, in our enterprise agreement, do something outside of the award.
**** IAN CHARLES FLINT XXN MS HEAP
PN3320
But can't you negotiate a local area agreement that would deal with that issue?---Again, it's an added cost to the organisation to have to go down that path of negotiating additional agreements when, ideally, one award or one agreement would cover most situations, and I guess we're very supportive of the award being changed, rather than having a whole series of agreements for different circumstances.
PN3321
MS HEAP: Mr Flint, isn't your point that you'd prefer - in the local work area agreement you'd have to make sure that, if you took away some of those entitlements in the award, you had some compensation for that?---Some benefits. That's correct.
PN3322
And you'd prefer a situation where you didn't have to provide those compensations?---Or have more discretion as to what those benefits could be.
PN3323
I put it to you, Mr Flint, that you can under the Local Work Area Agreement do the things that you're talking about but you actually have to make sure that the employee would be no - there would be no disadvantage to the employee?---That's the difficulty, yes.
PN3324
That's a difficulty for you?---For a small shire it is because, yes. It's very - - -
PN3325
And so if you get the award - - -?---Very restricted in the options.
PN3326
Right. And so if you get the award varied you don't have to meet the no disadvantage test?---You have more discretion as to how you can meet it.
**** IAN CHARLES FLINT XXN MS HEAP
PN3327
THE COMMISSIONER: So do I understand that what you're really saying here is that all you want out of this is a reduced labour cost for the hiring of part-time people?---Yes, that's correct. That's the main - the main issue is the cost of hiring people particularly for the - when - for instance, in our case we have a situation where we have people going on maternity leave and then coming back wanting a part-time position and we're trying to encourage that but we have an extra cost doing that. And we could well job share that job between two of those ladies if there wasn't so many restrictIons on doing that in terms of cost.
PN3328
MS HEAP: No further questions, thank you.
PN3329
THE COMMISSIONER: Ms King?
PN3330
MS KING: Thank you, Commissioner. I have no further questions.
PN3331
PN3332
MR WATSON: Mr Flint, my learned friend took you to the time off in lieu provisions in your agreement. Would you agree with me that the provisions in that part are part of the agreement which was in a negotiated outcome?---Correct.
PN3333
And was the agreement a package of matters which were dealt with? Concessions made by council, concessions made by either the ASU or the employees?---That's correct.
PN3334
I have no further questions.
**** IAN CHARLES FLINT RXN MR WATSON
PN3335
THE COMMISSIONER: Very well. Thank you.
PN3336
PN3337
MR WATSON: The next witness is Nicholas Faigniez and his surname is spelt F-a-i-g-n-i-e-z.
PN3338
MR WATSON: May it please the Commission. Your full names are Nicholas spelt N-i-c-o-l-a-s?---That's correct.
PN3339
Francis, F-r-a-n-c-i-s, William Faigniez?---Yes. That's correct.
PN3340
Now, was a statement prepared by you for the purposes fo these proceedings?---It was.
PN3341
Now, the statement which has been filed with the Commission is unsigned. Can I hand you this document and is that that statement which has been filed but now it's been signed by you and has the original correspondence attached to it, a - - -?---It says - - -
PN3342
- - - copy of which is attached to the statement which has been filed with the Commission?---It is.
PN3343
And to reiterate, that statement is a statement that you prepared for the purpose of these proceedings?---Yes, it is.
PN3344
I tender that statement.
PN3345
PN3346
MR WATSON: Yes. I have no further questions.
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XN MR WATSON
PN3347
THE COMMISSIONER: Very well. Thank you. Ms Heap?
PN3348
PN3349
MS HEAP: Can I hand to the witness a copy of the Eacham Shire Council's Certified Agreement 1997? Commissioner, we will tender that agreement in these proceedings.
PN3350
THE COMMISSIONER: Sorry. You do want to tender it?
PN3351
MS HEAP: Yes.
PN3352
THE COMMISSIONER: I'll mark that as exhibit ASU13.
EXHIBIT #ASU13 COPY OF THE EACHAM SHIRE COUNCIL'S CERTIFIED AGREEMENT 1997
PN3353
MS HEAP: Mr Faigniez, is this the enterprise agreement for the council which came into force on 10 February 1998 and had a life within it until 22 October 1999?---It would appear so by what is written here. I wasn't at the council at the time but certainly it's what it says.
PN3354
Are you aware of whether this agreement has been replaced by another agreement?---We're in the middle of negotiations at the moment and have been for approximately six months with the ASU and also obviously with the local employees.
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
PN3355
And as far as you're aware, has this agreement been set aside?---No. I'm not aware of that.
PN3356
So this would be the current agreement until it is replaced by another agreement?---Yes.
PN3357
Is that correct? And you say that you're embarking upon negotiations currently?---That's right.
PN3358
Right?---I think from what I recollect that was actually started by the ASU probably about six months ago.
PN3359
And the ASU approached you about a new agreement - - -?---Yes. That's right.
PN3360
- - - is that correct?---Yes.
PN3361
And the ASU at that time in conjunction with the members of the organisations, have they served on you a log of claims in terms of issues in the agreement?---Shall we say they have but they were very limited. We shall we say started that process but there is no - when I say there has been no log of claims, there has been a request for more pay but nothing else apart from that and we've been discussing that with the employees.
PN3362
Right. Do you have a bargaining unit involved in bargaining?---Yes, we do. We have two people that - two of the employees at the - who are - I can give you their names, but - - -
PN3363
They represent employees, is that correct?---Yes, that's right.
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
PN3364
And the unions make up the rest of the bargaining unit, is that correct?---Yes. Yes.
PN3365
THE COMMISSIONER: Ms Heap, can I just raise an issue with you? The document that's been handed up doesn't appear to be complete, or at least my copy of it doesn't appear to be complete. The last page I have says it's page 8 of 9.
PN3366
MS HEAP: And I've got 7 of 7. Can you tell me what clause you go to, sorry, Commissioner?
PN3367
THE COMMISSIONER: Clause 23 is dispute - the last clause - is dispute settlement.
PN3368
MS HEAP: Yes.
PN3369
THE COMMISSIONER: Which is clause 23, and at the bottom right-hand corner of the page it says "Page 8 of 9", but I don't have the 9th page.
PN3370
MS HEAP: Yes. Commissioner, I've just confirmed with Mr Watson that the ASU's version of this - well, my version that I have in front of me, which is not the version that was photocopied - is directly taken from Wagenet, and it has some - it concludes at stage 4 of the dispute settlement procedure.
PN3371
THE COMMISSIONER: Yes.
PN3372
MS HEAP: And it has, I think, probably three more sentences about the dispute settlement procedure than the copy that you have in front of you, none of which I'll be taking anyone to in the course of this, or has any significance. But I do apologise for that error.
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
PN3373
THE COMMISSIONER: That's fine. You have no difficulty with only part of the document being exhibited?
PN3374
MR WATSON: No, I don't.
PN3375
THE COMMISSIONER: Yes, thank you, Mr Watson.
PN3376
MS HEAP: Commissioner, we could undertake to get copies.
PN3377
THE COMMISSIONER: No, it's fine.
PN3378
MS HEAP: Thank you. I won't take you to the bits that are not there, Mr Faigniez?---That's okay.
PN3379
Or ask you to sort of try and recollect it from your memory, which you don't have because you weren't there at the time that it was negotiated?---That's right.
PN3380
Mr Faigniez, can I take you to that agreement, and can I take you to clause 13, Productivity Measurements and Benchmarking? Do you see that?---Yes, I do.
PN3381
And is that a process that's designed to improve the productivity and efficiency of the organisation by establishing benchmarks within a region?---Yes, it would appear to be so, certainly.
PN3382
And I understand that there's a fairly active regional network in Far North Queensland, which is a matter we'll go to, and that the notion of this clause is that you're benchmarking in that network and trying to improve performance, is that correct?---Not that I'm aware of. Certainly there is no active group that I belong to or I'm a member of in that sense that's looking at benchmarking in that area.
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
PN3383
The Far North Queensland Regional Organisation of Councils doesn't deal with this?---No, it doesn't. Not that I'm aware of, put it that way. I go to those meetings on occasions, but certainly that's not an issue that's been raised in that sense. They tend to look at wider regional issues, if you like: road maintenance, waste disposal; those issues on a more regional basis, than detail, if you like, in this sense.
PN3384
Right. That's despite what is said in the agreement, that that would be - if you read down, it says: "In particular, the parties agree to partake in the proposed regional benchmarking project instigated by the Far North Queensland Regional Organisation of Councils"?---All I can tell you is that certainly at the moment there is no such beast in that sense. It doesn't exist, and I'm not sure if it ever has existed.
PN3385
But the Far North Queensland Regional Organisation of Councils exists?---Yes, it does. Yes.
PN3386
Right. But your evidence is you haven't had experience of it dealing with benchmarking?---Benchmarking, no.
PN3387
Okay?---Certainly not in this - I suppose in this kind of forum. They look at benchmarking in the ways of, say, waste disposal and so on - in those issues - but not as far as I'm aware certainly within the session.
PN3388
Right. Could I take you to paragraph (g) under that provision, which talks about - it says: "Working arrangements, flexibility of". Can you see that?---Yes. Yes.
PN3389
Have you got any experience of the council using this process to look at flexibility of working arrangements?---I suppose that what I would say is that certainly there are a number of flexible working arrangements which Eacham Shire has in place. If they, I suppose, come through this process or not I really couldn't say, but certainly we do have flexible working arrangements with our staff and an hours of work agreement certainly that's in place that we will be looking at registering with a new agreement.
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
PN3390
Okay. So what does your hours of work agreement go to, Mr Faigniez?---I suppose it's looking at flexible hours of work for the staff to enable them to take 36¼ or 72½ hours over the fortnight but within a wider band.
PN3391
Right. So flexibility in terms of the span of ordinary hours?---Yes, span of ordinary hours and with the - as I say, there's that opportunity for people to drop their kids off to school, come in later, work later, that kind of thing, to make up the time over that period.
PN3392
So in relation to that there's the agreement - in your view, it has compensations for the employees in terms of - - -?---Mm.
PN3393
And the employee gets compensations or benefits because you've got the expanded ordinary hours, is that right?---It's not so much expanded ordinary hours. It's still within the actual span of hours as set down in the award. It's just really rather than a strict 7½ days a week or a rostered kind of 19 day month, it's flexible hours between a fortnightly period to allow people to take that time or to work, if you like - work that time during - or I suppose that suits us as well as suits the individual too.
PN3394
So they might work later than they might normally work and - - -?---Yes.
PN3395
- - - have some time off as a result of that?---Yes. Yes, that's right.
PN3396
Right?---So they might work, say, till half past 5 to get a particular task done, or working in that respect and perhaps come in earlier, or they may save it up during the week and, say, have half a day off.
PN3397
Right. And are there other flexible arrangements that you've negotiated at the council level?---I suppose what I would say is that we are just fairly flexible with individuals, rather than necessarily having anything that's been strictly negotiated in that sense to put into or add to the award in any way. We're just fairly flexible in that sense.
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
PN3398
And is it your view that these provisions work because there are benefits for the employees and benefits for the employer in the agreement?---Yes. Yes, there's benefits for both groups with that flexibility, certainly.
PN3399
And that might include additional entitlements for some people - more pay or - - -?---Certainly in that sense, yes. I mean, there's, if you like, the additional component of the flexible hours of work agreement. We provided an increased pay component for that acceptance of that. So I think initially there was some distrust, which I think has been there for a while, and that was something that council considered was worthwhile to offer to, I suppose, set a couple of things. One was try to build up trust with employees, and also that it would be of benefit to council as well as employees too.
PN3400
And so there's been - would you say there's been benefits for the council in negotiating these things locally and building up that trust as part of the process?---Yes, very much so.
PN3401
And did I hear you say that you were going to incorporate - you were going to seek to incorporate that flexible hour provision in your new certified agreement?---Yes.
PN3402
And are there other, from the council's point of view, other flexibilities that you'll be seeking to pursue in the enterprise agreement?---There are other, I suppose, incentives within that that are based around training - training incentives for the staff which will provide additional remuneration for a higher skill level within a position. Apart from that, I don't think there's anything that I would say that there's any additional, if you like - additional flexibility.
PN3403
Because if you get your flexible hours provision in your agreement, that will fix most of what you need to fix up, is that correct?---Well, that's right. I suppose that's been happening - I mean, this is 1997, so - - -
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
PN3404
It's a long time ago?--- - - - it's a long time ago. So I started in 2000, and that's what we've really been working towards as part of what we're doing is to try to build up trust within the employees. It's a small work group; we know - everybody knows everybody by first name, which is very useful, and I suppose those are the kind of things that we've put in place over the intervening years, probably over about the last two or three that we've actively worked at doing that. I think - shall we say that the most recent discussions we've had with the ASU, the reps have actually changed. Michael - I can't think of his surname - was there previously, and I'm not certain of the current organiser's name either, but certainly the only request from the ASU was that they should receive more money because they're doing a good job. There was no other - there was nothing else that was offered.
PN3405
That was a fairly reasonable request?---Well, I suppose hopefully that's we're all employed to do is to do to the best of our ability.
PN3406
But, presumedly, when you get down to those negotiations there will be more issues on the table sorted through?---I would hope so, but invariably there aren't because there aren't any others brought forward. It tends to be management who bring the issues forward for discussion.
PN3407
But if employees wanted to bring things forward you'd be open to those?---Certainly.
PN3408
Okay. Can I take you to Clause 17 of the agreement which is overtime? It says:
PN3409
The parties agree subject to provisions below -
PN3410
which relate to some specific employees -
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
PN3411
that all hours worked in excess of the ordinary hours of work as defined under the award from Monday to Friday outside of the normal spread shall be paid at ordinary time or taken as time in lieu.
PN3412
Do you see that?---Yes.
PN3413
And is that what happens at Council?---Certainly I would say that's one of the aspects that's changed with the hours of work agreement which we certainly - I would say it doesn't, if you like, what's in here is not what happens - it certainly - I would say that's something that has been - when I say has locally been, I suppose it's been arranged with the staff and also with the ASU because they were certainly aware of it when we were doing it. It was all put to the ASU.
PN3414
Right. But would you accept that that's a fairly flexible provision in a sense that all time - effectively, all time is paid at ordinary time rates?---Yes.
PN3415
And at Clause 20 you have a provision that says:
PN3416
Enterprise flexibility arrangement. Administrative employees that are party to this agreement agree to allow limited flexibility by each working a maximum of 12 Saturday mornings per year between the hours of 8 am and 12 noon.
PN3417
Do you see that?---Yes, I do see that.
PN3418
Has that gone by the wayside with the flexible hours arrangement as well?---Yes, it has. As far as I - I have seen these clause before certainly and really it just doesn't happen any more. There is no Saturday morning, if you like, Saturday employment in that sense. I think the initial reason for it being there was for library services on a Saturday morning in that sense and that was taken from within the employees - or there was a roster that was within the permanent staff to work a Saturday morning. I would say that our staff has expanded since then, our numbers have increased and that really isn't relevant in that way any more.
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
PN3419
But you would accept that that was a flexibility that was provided under the agreement?---Yes.
PN3420
Yes. Mr Faigniez, can you tell - do you have a process whereby you review annually the role of staff or do a staff development plan or something like that?---Yes, we have a performance review process on an annual basis which is carried out with all staff. And that - and I suppose also it's not just a review it also sets out, I suppose, process or detail targets, objectives for the year to come too and that's done on an annual basis, and, generally, on the increment date or we try to tie it that way so that we can spread it out throughout the year rather than necessarily doing it all in one hit and one month in that way and that review is an opportunity to the staff to raise any issues that they have with their managers regarding the duties that they're doing.
PN3421
Right. And do the - does discussion also include a review of the role that they're performing their responsibilities, how they're going with those sorts of things?---Yes, it does.
PN3422
And do you, at that process, discuss - do people have position descriptions in your organisation?---Yes, they do.
PN3423
Right. And is that the time where people would say, "Look, I think my position description is out of date," or "I think it should be - - -?---It's certainly one of the times. I suppose certainly there's been a change in the organisation and it's a little bit - I like to think - a little bit more open than it used to be and they - and I suppose it's certainly one of the things the managers and supervisors have been doing and that we've been trying to do within the organisation is to make more open and easier for staff to come to us to say, "Hey, look, we don't agree with this." So, yes, there's the annual process. There's also, if there's a change, if you like, or a restructure within the organisation, that's an opportunity to - that staff can do the same thing. They have an opportunity to review that and also, I suppose - and at any time during the year, but there are, I suppose, two more formal processes, one is the annual performance review and the other is if there is any change within the organisation that might mean different duties, different responsibilities.
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
PN3424
And is it also the case if there may not have been a restructure within the organisation but the person just, you know, having looked at and looked at the fact that they might have been given different work throughout the course of the year or, you know, they've taken on additional responsibility. They could say to you, "Look, I think this should be reviewed"?---Yes, they have done. I mean, in the past - also I want to note here is there have been - we've received five request over that time. The process that we have in place is that if it's referred to the manager the CEO asks me to review that and then provide him with a recommendation on what that classification should be. As I say, and there has been four of them I've recommended that they be reclassified to a higher level and one stayed the same.
PN3425
And you say that that happens at least annually in terms of the review of the position description and their feedback about their performance but employees if they've got a concern in between time can also raise - - -?---Yes. Can also raise it.
PN3426
Yes. And if people are unhappy about the outcome of the process, say, the one person you didn't recommend, do they have an appeal right to deal with that?---Yes, they always have ..... but that's one of the reasons separating it is that I do that recommendation to the CEO. There's always an opportunity to include the ASU in that. We've always - I suppose what we've tended to do a couple of times we've generally requested that the ASU become involved if we think that there is going to be some difficulty right from the beginning rather than wait till it gets to the end and we've found that to be quite a successful approach.
PN3427
Great, it's good to hear?---Sorry?
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
PN3428
And the - in your view is it important that employees understand the basis upon which they can ask for a review or reclassification?---Yes, it is. It also raises, I suppose, that issue of - and this is why we - when I say - we have a policy in place like in that sense to actually let the employees know that what they can do and what they can't do in that sense. I suppose one of the issues that we always have to overcome is the feeling that the people aren't doing other work that they may not be necessarily be doing and that's an opportunity for discussion with them, initially with their manager, and, I suppose, that's always going to be a component. There's always going to be some disagreement at times about what people are doing or asked to do and what they feel they're asked to do or what authority they feel they have. And that's, I suppose, for us is down there for those staff so that the staff know that that's there.
PN3429
And one presumed that, therefore, in that context important to have a statement or position description which really reflects accurately what the expectation of that role is from the organisation's point of view?---It is. It's also just difficult to put it all down in one document. I mean, I always think that's a bit of a problem trying to have one particular document that actually tells somebody exactly. If they just pick that up on its own they will know exactly where it fits in the organisation and they will know exactly what it does. It needs some discussion because, I suppose, this is certainly where I - when I say where I come from - one of the issues that I have is that there tends to be a let's treat all councils the same. We're a council of 40 employees in the Federal sphere. We change probably more frequently, if you like, the duties that people do than a larger organisation would do. Larger organisations tend to perhaps have a set PD even for a particular level. We don't go to that because that doesn't really suit us. We need to - and the type of thing that we tend to do is we tend to have a more generic position description that describes types of work and that we include the actual duties or the detail for the coming year within the performance management system.
PN3430
So that the employee would be left in no doubt about what the expectations are?---Certainly not but it wouldn't just be in the position description. It's that other component too.
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
PN3431
Mr Faigniez, have you see the ASUs application in this matter? Application to vary the award?---Yes, I have.
PN3432
Have you got a copy in front of you there?---I might have. I just need to see and make sure we're looking at the same thing. Is that the outline of contentions? No. Different one. Sorry. I may not have a copy of that.
PN3433
Do you have that in front of you?---Yes.
PN3434
Thanks?---Got it here now.
PN3435
Can I take you to clause 8 - - -?---Clause 8.
PN3436
- - - of the variation which is the classification - re-classification?---Certainly. Yes.
PN3437
See at 8.1 it states:
PN3438
The positions will be classified in accordance with the level definitions provided in schedule A of the award.
PN3439
Is that what you do at the council?---Yes.
PN3440
At 8.2 it says that:
PN3441
To ensure that employees are correctly classified, each employer will at least every two years provide in writing the following pieces of information.
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
PN3442
Can you see that?---Yes, I can.
PN3443
Is that effectively what you do on an annual basis with employees?---Yes, it is. I suppose the - when I say - the problem arises with having a piece of, if you like, a piece of paper that can actually be very descriptive in that sense. It can certainly identify the duties, but providing an organisational chart doesn't necessarily identify the authority in that sense and the extent of the authority of the position. I'm not quite certain what you actually mean by that. I suppose it's a question that I would have. I'm not quite certain what you mean by the extent of authority. In our sense we have authorities regarding accessing people's homes and all of those kind of things.
PN3444
If I said to you that the information that - I'll ask you this question - in the position description or the other information that you provide to employees, do you tell them what they're accountable for and the limits in terms of: "You report to so and so and - - -?---Yes.
PN3445
- - - you're required to on a daily basis to do these things. If you get beyond that point, you need to go and seek authority in relation to those sorts of things"?---Yes, we do. The issue that I would have is that it tends to be very difficult to read that from a piece of paper without really talking to somebody about it.
PN3446
And you say you would want to sit down and talk to them - - -?---Yes.
PN3447
- - - at the same time? Yes. And you've I think already acknowledged that it's important when you give people the information that it does accurately reflect the role that they're required to perform?---I suppose our difficulty there in meeting that is just that other component that I raised: that is we have pretty much generic position descriptions. And the duties are actually identified on an annual basis because - when I say "duties" it's really the particular tasks that they might have to do in the coming year might change and they change on a variety of things. It depends on what the State Government decides is the next
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
thing that we need to do. As an example, I think in a review we did recently I've got about 3½ years of projects to do. What I actually do will be described through that position description for the coming year. Obviously the type of work is the same but it's particularly - particular duties in that sense.
PN3448
So, in fact, you probably give more detail than what is proposed here?---Yes. And I think you would have to because it would be very difficult for us to produce a position description which would be the same if you like or involve the same duties in that sense other than on a generic level.
PN3449
Yes. If you look at 8.3 it talks about:
PN3450
Any officer party to the award may make a written request for a position reclassification on an annual basis or at the time of their staff development review. A written request for review can also be lodged with the council any time where a position has been restructured or duties and responsibilities have changed.
PN3451
That sounds pretty much like the process that you've got in place at Eacham; is that correct?---Yes, it is. The difference I think that I would raise again is that issue of developing trust and I suppose it works both ways. If things become very prescriptive, there tends to become a lack of trust in that it's a referral back to the rule book if you like rather than necessarily a matter of developing a working relationship.
PN3452
But, for example, if 8.3 became part of the award that's not going to cause you any difficulty because you already do that; is that correct?---No. You're quite right. It probably will be very much the same as what we do.
PN3453
If a person has actually being doing the job at a higher level, and you go through a review process, and you accept as you have done obviously in the examples that you've given that they have been doing the higher job, when do you pay them from?---From the date of reclassification.
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
PN3454
Right. And how long does your process normally take?---Two weeks.
PN3455
Okay?---At the most. One week, two weeks.
PN3456
So if we had a process which said, well, you've got to pay them - you've got to do it within six weeks or you've got to pay them from that six weeks after they have made the request: that wouldn't be a problem for you either?---For our shire, no, it wouldn't be.
PN3457
And if you look at 8.4, Mr Faigniez, it sets out the grounds for which a request for review can be made and it says:
PN3458
Having regard to the classification definitions as specified in schedule A, the grounds are as follows: identify changes in the nature and work value of the duties performed; increases in responsibilities; changes in the skills, knowledge and experience required to undertake the duties such that the duties of the position as required to be performed by the individual when assessed against the classification definitions in the award would place them in the higher band.
PN3459
Is that your - is that effectively - you might use different words - but is that effectively the kind of criteria that you would apply?---Yes, it is. Certainly it always tends to go up shall we say, increases in responsibility. Although there are some cases where there are decreases in responsibility too and we see how we can deal with that with the individual.
PN3460
How would you deal with that with the individual?---Tends to be on an organisational basis if you like of - I suppose part of what we tend to do is I suppose encourage people to stay. So one of the things that we would tend to do - again because we're a small council - is keep people at the same level even though there was a decrease in responsibilities in some way. But what we will be looking at doing would be to increase those responsibilities, duties, that they have to undertake in the future.
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
PN3461
So you wouldn't normally apply a process whereby you looked at the person and said, "Oh, well, actually we think you're now working in a lower level. We will reduce your salary"?---We would consider that if it's a longer term - a longer term issue certainly and we have done in the previous restructure. There were a couple of - there were two positions I think that did end up being at a lower - a lower level, lower responsibility, and we basically kept them at the same pay level for the coming year. But they were fully aware that at the end of that year there would be a reduction in that and again that was something that we involved the ASU in right from the beginning.
PN3462
There was then a negotiation at the consequences of that process?---Yes. Yes.
PN3463
And was there in that discussion the question of whether, in fact, a redundancy had taken place or anything of that nature?---That was - that was an option. Should we say all of the options were there with the - with the restructure for people to take a - to, I suppose, become redundant if that was - if that was a wish that they had in that sense.
PN3464
Yes. So it was the employee had the option to become redundant - - - ?---Yes.
PN3465
- - - or to take - - - ?---Yes.
PN3466
- - - salary maintenance at a lower level - - - ?---Yes.
PN3467
- - - for a year. Is that what you said?---Yes, for a year.
PN3468
Yes. Can I take you to your position - sorry, your statement in these proceedings. You say at paragraph 4 and the second paragraph under that:
PN3469
Increments for part-time staff are awarded on an hours worked basis not annually.
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
PN3470
?---Yes.
PN3471
Is that correct? Where do you understand that comes from in terms of the hours worked provision?---All I can say really is custom and practice. It's been - that is what has been the custom and practice in the shire and also in the other shires around us. It's something that basically we check on in that sense. But also it's something that the employees see as fair too in that sense.
PN3472
The full-time employees see as fair?---I would suggest that they probably would do and that the part-timers wouldn't do. I think that you can always take those two signs, if you like. I suppose that the argument that one person put up to me, which still rings in my head, is that, "Well, if you have somebody on a half-time basis and they get the same increment as I do they get a greater percentage pay increase in the year".
PN3473
They don't actually get the same increment, do they? They get the pro-rata proportion?---No, that's not the way that it's been - that I understand this to be talking about of it being a pro-rata - pro-rata increment, I suppose.
PN3474
Well, so if what the ASU was suggesting was that the person gets the pro-rata entitlement that would be fine with you?---I'd certainly consider it and go back and re-talk about it with the CEO because that certainly would sound more equitable in that sense of having a particular pro-rata increase rather than a - if you like the full increment, but it's certainly seen as a full increment. I think the issues that we may have is actually trying to manage that. And we're a small council, so I'm just trying to think the issues in managing that within our payroll section.
PN3475
But you do your annual reviews - you do your reviews annually on the anniversary date of a person?---Yes.
PN3476
Yes. And that's when you review what they have achieved over the last 12 months and whether they have met the objectives that have been set down?---Yes.
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
PN3477
And you do that for part-time employees as well?---Yes, we do. Certainly part-time and - - -
PN3478
So their objectives are set - - - ?---Part-time and permanent employees, yes.
PN3479
Yes. Their objectives are set and you review whether they have achieved those objectives?---Yes.
PN3480
And you do that on an annual basis?---Yes.
PN3481
And so if they had achieved the objectives and they got - and on the basis that they achieved those objectives they got an annual increment but at a pro-rata basis. That's something that you had - that you might think about?---It's certainly something that we would consider. Yes, certainly.
PN3482
Can you tell us about the stand-by arrangements that apply at Eacham?---At the moment we have three people on - or on call. Three people are on call or three areas certainly. It's control - animal control, water and sewerage and roads - the roads foreman who come under that. And basically they are on call or that function is on call. It's rotated through the staff on an annual basis. We tend to need certainly the roads foreman on call and that's mainly to do with, say, trees falling across the road. It's that kind of place where you get a storm and trees fall across the road and we need to clear them. Or animals, including cattle and others are out on the road and the Police give us a call and we need to clear those off the road too, as well as a fairly - I suppose, it's much the same in a lot of rural areas, you tend to get a wild dog problem too or a dog problem, so those kinds of things.
PN3483
Sorry, I don't mean to laugh?---No, that's okay. I love living there so it's fine.
PN3484
This is a Melbourne girl thinking about the wild dogs, I think?---Yes, that's all right.
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
PN3485
Right. Sorry, Mr Faigniez, I wasn't laughing at you at all?---That's okay.
PN3486
Those people, are they employed under the Federal Award or the State Award?---We have some under each. All of those - those three, if you like - I suppose, when I say we have some under each, those three positions are Federal positions and they are under the Federal Award, but we also have State employees who may go out and help them. So that they may go out if there's some - round-up some cattle or whatever it may be. It takes more than one person, so we also have some State employees on - that go out and assist in that way.
PN3487
As I understand what you're saying in your statement about the ASUs application for stand-by, apart from the overall cost, is that it would work out as more for the Federal Award employees than the State Award employees are getting and that's a concern for you?---I think currently at the moment - I suppose just to check I asked the payroll officer to run two scenarios through for State and Federal employee under the current conditions and under the current kind of average on call - when I say call-outs, the current call-outs. Because the call-outs have an effect overall. Although there may be a difference in the on-call allowance the actual hours that somebody - the hours that - if you like the pay that they receive for going out is different from State to Federal. One is three hours and the other is an hour and a half minimum. Now, the issue for us is that the average is that I've been - or the averages that I've been told by payroll officer there's generally one call-out during the week time in the evening and there's one on a Saturday and there's one on a Sunday. And I said, "Well, okay, just give me some calculations for State and Federal". And under the current set-up as far our payroll officer is concerned the Federal officer would presently receive $100 a week more than the State Award employee would receive.
PN3488
In the context of the ASUs application?---Yes. In the context of the - of that increase - sorry, no, currently. Not in the context of the application, but currently.
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
PN3489
Are you saying $100 a week more?---Yes.
PN3490
The on-call allowance for Federal Awards employees is only $40 something per week?---Yes, that's right. It's a combination of the on-call and actually going out that I'm talking about here, not just the on-call. Certainly there's a difference in the on-call. I've got some calculations here if you're happy to look at them that have been provided to me by my payroll office; in that for us what we're looking at is the end result. And the people who are on call don't look at just being on call and the allowance, they look at being on call and being called out. Now, the Federal Award employee receives more for actually being called out and that's what we're looking at, our averages in that sense.
PN3491
Okay. So if I separate out the two issues - - - ?---Yes.
PN3492
- - - the issue isn't the stand-by amount, the issue is the combination of stand-by plus what the person gets for when they go out?---It's the total effect on the employees. It's the totally effect on the employee in that sense, be they Federal or State, and what it will mean to them and how they raise that and how they deal with that issue too.
PN3493
But you say in that context you have more Federal Award employees on stand-by than you have State Award employees?---I don't know if that's true. That's probably the case for those three particular - those three particular positions, but we also have a stand-by road crew so that there are people that are on stand-by generally - or there's two that I'm aware of. I would need to go back and have a look again, but there's certainly two that I'm aware of in that sense.
PN3494
Mr Faigniez, if I said to you that, for example, a Level 8 State Award employee's stand-by rate is basically approximately $191 for a seven day roster period would you understand it?---Their on-call - their on-call amount?
PN3495
If we can use a - their availability amount?---Yes, yes. 68, on-call allowance, yes, also talking about the Sunday, the amount for the Sunday, yes, certainly.
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
PN3496
Because they're on 24/7?---Yes.
PN3497
Yes?---Certainly.
PN3498
And if I said to you that what a federal award employee gets for that same period of time is $40.42, would you accept that?---Yes.
PN3499
Right. So there's a substantive difference there?---With being on call, what I - I suppose what I'm looking at - and this is, I suppose, what I'm saying is that hour average - what I have to look at or what we're looking at, and certainly what our employees look at, is how much they get in their pocket at the end of the week for doing the duties that they do. And they look at the combination of not just the on-call allowance, because our people get called out and they get called out regularly. These are averages put together by payroll for people getting called out. And our average is one weekly call-out, one weekend call-out on a Saturday and one on a Saturday. And when you actually put the remuneration that they get for turning out for those hours, the actual - actually the federal employee comes out on these calculations about $103 better off than the - - -
PN3500
Okay. So what you've done is you've taken examples of over a period of time - - -?---Yes.
PN3501
- - - of when they've been called out?---Yes.
PN3502
And you've calculated what they get at the end of the day?---Yes.
PN3503
But you agree that the rate for being available between the State and - - -?---Yes.
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
PN3504
The federal award substantially - - -?---Yes. Yes, I agree with what you're saying.
PN3505
Yes?---Those figures, if you like, are black and white. That's in there. And I don't have any disagreement with that.
PN3506
And then it just depends on the circumstances of when they then work - - -?---Yes, and - - -
PN3507
- - - that make a difference?---And I suppose that those are issues that each council should consider rather than necessarily being in an award. And that's what the councils in the north believe, certainly.
PN3508
Do you pay your federal award employees just the stand-by rate in the award?---Yes, we are; they're at that amount.
PN3509
Do you provide any other additional benefits to them?---They have a car, they have a vehicle and a - oh, should we say they have a - oh, I suppose most of our people do. The most of the people there, I suppose, have a variety of jobs, they have a vehicle to and from work and they also have a mobile phone.
PN3510
And is it - one presumes, given what you've said about the call-out, that they need to have the vehicle to go and do the job?---Yes.
PN3511
And they need to have the mobile phone to be contactable to go and do the job; is that right?---You know, we have a bit of a problem with contact in that area, if you like. It's probably one of the - - -
PN3512
Telstra problem, is it?---Well, no, it's not so much a Telstra problem. I think we're getting Optus into the area, too, and they're putting up some more mobile towers. But there are a variety of dead spots in the area and some people have to be - can only be contacted by landline.
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
PN3513
You say in your statement that your water treatment function is now done by landline; is that right?---Yes, it is ..... So if there's a - if the system goes down, basically the water treatment officer is alerted in some way. I'm not quite certain how, but he gets alerted. And he can do it straight from home.
PN3514
On laptop?---Yes, by a laptop straight from home.
PN3515
Right. And that's a development that's - is that a recent development?---That's been in there for the last two years, three years, maybe.
PN3516
And in that scenario, the person, what do they get paid in terms of the work that they do on the laptop?---There is an agreement in our State agreement - that's one of the issues to actually separate out of, or duplicate into, the federal award, too. They have a lower minimum because basically if they do it from home and they can reset it, it's a 5-, 10-minute job, or so I'm told. And they get paid a reduced amount for that.
PN3517
Sorry, just one more question, sorry?---Mm.
PN3518
Well - - -?---A few more.
PN3519
- - - depending on what you say?---Okay.
PN3520
Your statement attached - has to it a letter from the Far North Queensland Regional Organisation of Councils?---Yes.
PN3521
Some of them feeling slightly disenfranchised by the fact that they're not here giving evidence but wanting to have their point, I think, as well?---Yes.
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
PN3522
Can I take you to the final paragraph of that statement, where it says:
PN3523
It should be noted that the matters raised in the application contrary to the evidence supplied by union officials have not been brought to the attention of the rural and remote councils in Far North Queensland, nor has any attempt been made to resolve these issues in the enterprise bargaining process.
PN3524
?---Mm.
PN3525
Mr Faigniez, if I was to say to you that the evidence that's been given in these proceedings is that that's not the case, that bargaining has been made, attempts are going on, would you be in a position to contradict that?---I'd probably ask who they're talking to, because certainly none of the CEOs are aware of it and certainly none of the mayors are aware of it either. So they haven't, if you like, talked directly, as far as I'm aware, and, going by this and going by my conversations with the CEOs, discussed that. So that's really all I can tell you on that component. But - and certainly I haven't been with the ASU at all recently with discussions with the - through the Eacham Shire Council bargaining - enterprise bargaining that has been going on in the past, say, six months. Nobody raised those issues either, certainly with me.
PN3526
Can I hand a document to the witness, please?
PN3527
This is a document which relates to enterprise bargaining at Johnstone Shire Council?---Mm.
PN3528
The first part of it is a summary of meetings of ASU members of that council about the matters that they seek to raise. And attached to it is a minute of the single bargaining unit held in Johnstone Shire Council; do you see that?---Yes.
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
PN3529
Can I tender that document in these proceedings, Commissioner?
PN3530
THE COMMISSIONER: I'll mark it as exhibit ASU14.
EXHIBIT #ASU14 DOCUMENT RELATING TO ENTERPRISE BARGAINING AT JOHNSTONE SHIRE COUNCIL
PN3531
MS HEAP: Mr Faigniez, is Johnstone a member of the Far North Queensland Regional Council of - - -?---It is.
PN3532
Regional Organisation of Councils?---Yes, it is.
PN3533
Can I take you to the second page of that document?---Mm.
PN3534
Can you see down - at the top there, there is a point that says the - sorry, can you see, before we do that, that the date of this meeting - - -?---6 July.
PN3535
- - - is 6 July, yes?---Yes.
PN3536
And can you see at the top that there's a point, 25 per cent loading for casual employees?---I can.
PN3537
Yes. And the second point is about salary progression?---Mm.
PN3538
Yes. And the third point is about methods and terms of engagement?---Yes.
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
PN3539
And the fourth point is about PDs and reclassification procedures?---Certainly.
PN3540
And the fifth one is about reasonable hours and overtime provisions?---Mm.
PN3541
And the sixth is about stand-by and call-out provisions?---Mm.
PN3542
They are all matters that are being dealt with in this application; is that correct?---Yes.
PN3543
Can you see attached to this is the minutes of the single bargaining unit held in Johnstone Shire Council boardroom on 26 August 2004?---Yes.
PN3544
And can you see "Present" includes Mr - - -?---Yes.
PN3545
- - - N. Clark, the Mayor, and Mr P. Roberts, the CEO?---Certainly.
PN3546
And can you see that on the last page, at point 7, it says:
PN3547
Log of claims, federal award employees.
PN3548
?---Mm.
PN3549
And it says:
PN3550
The ASU has presented their log of claims as per member meeting held on 6 July 2004.
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
PN3551
?---Certainly.
PN3552
On the basis of that document, at least for Johnstone Council, would it indicate that the statement contained in that letter is not correct?---Well, I suppose so, certainly one out of 13 isn't exactly a high percentage. But certainly it is - it wouldn't be correct for Johnstone on this.
PN3553
Are you aware of how many of those councils are currently involved in bargaining?---Oh, there are four that I know of, and certainly including us. And as far as - certainly - well, there's just the four: Mareeba, certainly Mareeba, Atherton, Eacham. I'm just trying to think who else. You may know, too, but certainly those - I don't keep in - necessarily in close contact in that sense.
PN3554
And the others aren't up for bargaining at the moment, because they've got current agreements?---Perhaps, yes.
PN3555
And Cairns is in a separate category as well, is that correct?---Yes.
PN3556
Yes?---Certainly the letter there doesn't include Cairns in it.
PN3557
Doesn't include Cairns, no?---Yes.
PN3558
Yes. That's it, thank you?---Thank you.
PN3559
THE COMMISSIONER: Ms King?
PN3560
MS KING: I have no further questions, Commissioner.
**** NICOLAS FRANCIS WILLIAM FAIGNIEZ XXN MS HEAP
PN3561
THE COMMISSIONER: Very well, thank you. Mr Watson?
PN3562
MR WATSON: I have no re-examination, may it please the Commission.
PN3563
PN3564
THE COMMISSIONER: We might adjourn for 10 minutes.
SHORT ADJOURNMENT [11.00am]
RESUMED [11.22am]
PN3565
THE COMMISSIONER: Mr Watson?
PN3566
MR WATSON: May it please the Commission, I call Mr Noel Hoelscher.
PN3567
MR WATSON: Your full names are Noel Jeffrey, spelled J-e-f-f-r-e-y, Hoelscher, spelled H-o-e-l-s-c-h-e-r?---Yes.
PN3568
And you are the manager human resources at the Redland Shire Council, whose office is - or your office is in the building at the corner of Bloomfield and Middle Streets, Cleveland in this state?---Yes.
PN3569
Mr Hoelscher, for the purposes of these proceedings, you made two statements. Can I show you these documents, and you've got copies of those statements with you, haven't you?---Yes, I do.
PN3570
Could I just show you these two documents. Firstly, the one dated 4 November 2004 and - is that the first statement that you prepared and is that your signature?---November 4, yes.
PN3571
I tender that.
PN3572
PN3573
MR WATSON: And then the next document, is that document dated the same - I should say, dated 1 December 2004, and is that your signature?---Yes.
PN3574
I tender that.
PN3575
**** NOEL JEFFREY HOELSCHER XN MR WATSON
PN3576
MR WATSON: Now, may the witness be shown - sorry, not shown anything. Do you have a copy of the witness statement of David Smith which is being used in these proceedings?---Yes.
PN3577
The second witness statement. All right, can you go to that part which deals with your first witness statement, which commences in his statement at paragraph 12?---Yes.
PN3578
Which is on the second page?---Yes.
PN3579
Yes. Now, going over the page, have you read the paragraphs which are numbered 15, 16, 17 and 18?---Yes.
PN3580
Dealing with each one of those, is there anything you want to say about paragraph 15, or the matters Mr Smith says there?---Mr Smith makes the claim in this - in paragraph 15 that had my department produced an individual position description reflecting the differences, then it would have been more likely that this particular dispute referred to in here wouldn't have arisen. I would disagree with that. I'd certainly like to disagree initially with the fact that he's made the assumption that my department, which is the HR Department, would be responsible for writing position descriptions. The setting of a position description at Redland Shire Council is the responsibility of the manager of that particular area. Because it clarifies the responsibilities of the individual officer, and therefore is the responsibility of that manager to have in place. I will acknowledge that we assist in that process. But it's certainly not our responsibility to write ad hoc position descriptions. I'd also like to further say that we have position descriptions for all employees and some of this is referred to in paragraph 16 - would you like me to carry on paragraph 16?
**** NOEL JEFFREY HOELSCHER XN MR WATSON
PN3581
Yes, please?---Where Mr Smith makes the claim that it is the RSC, or Redland Shire Council policy of creating generic position descriptions. Which seems to be the point of quite a bit of his argument in this. The fact is that there - that Redland Shire Council does not have a policy of creating generic position descriptions. We have 650 approximately Federal Award employees. We have 650 different position descriptions. Some of those obviously will be very much the same as others because they may - there may be six people - for example, six compliance officers doing the same job. We call those position descriptions generic. But in every other case where a role is different to another role, then the position description is not generic as such. The contention that may be argued is that are they different enough to make them distinguishable. And that becomes a matter of discussion. We have a system we believe that every position description should be so unique that it can distinguish what role the individual person - employee has, but not so detailed as to create future disputes by, "Well, I can't do that because this word's not in there, or that word is spelled incorrectly", or whatever it might be. So, somewhere in the middle of those two extremes, we try to place our position descriptions. Many of our position descriptions are quite detailed. Some are less detailed. So I think that's an incorrect assertion that has been made there about how generic the position descriptions are.
PN3582
Mr Smith appears to be trying to make the point - or makes the point, in paragraphs 16 and 17 that the process that is being undertaken at Redland Shire Council is to undermine the classification system which is set out in schedule A to the award. Is that the approach of Redland Shire Council?---Definitely not. In fact, the reverse. Fairly recently, a number of years ago - a couple of years ago, I think it was about 1991, somewhere in that area, all position descriptions were re-written and updated. And all positions were evaluated. The only mechanism used for evaluation was schedule A of the award. There has been plenty of discussion about whether or not that - how that could happen, and there's also some difficulties with the interpretation of schedule A of the award, which obviously is referred to in paragraph 13 where we are currently under dispute and have a matter before the Commission. I don't - I won't discuss that matter at all. But save to say that every evaluation that we have done has been done in relation to schedule A of the award.
**** NOEL JEFFREY HOELSCHER XN MR WATSON
PN3583
Going over to paragraph 18 there Mr Smith deals with the matter you raised in relation to casuals. Is there anything you'd like to say about that or what's said there by Mr Smith?---Well, I think he's made a fairly sweeping statement here by saying that school students would not in the normal course of their employment actively seek or accept an offer from permanent employment with Redland Shire Council. I fail to understand how he could make that comment without having any data. I would say that that is wrong because I know of some school students who do wish to take permanent employment. That's not really the main problem that I would have with it. And the tack that we have taken or we would like to take in Redland Shire Council, and we do it where we can but it's restricted by this particular clause, is to offer developmental and learning opportunities to school students after school. That is restricted by the fact that we have a minimum engagement of three hours in that particular area in the library - is I'm only talking about - the libraries. And so it would be - we would be - able to offer more developmental opportunities which we take as a social responsibility in our shire which is a fairly close-knit, I say, isolated. I don't mean isolated in the fact of it's a long way away but it's enclosed, so we take that responsibility seriously and we would like to do more in that area. And so we would like to have more flexibility to offer more school students hours that they - that fit in with their homework and study and that be two hours.
PN3584
Is there some particular connection between school students and libraries in that regard?---Yes, we particularly - two connections. One is that there are many school students who wish to have part-time work - not part-time under the terms of our award, but work of a short term nature to supplement their income and also to learn about work. So there's a lot of people wanting to do that in our shire, firstly, and, secondly, we have work that can be done by these people. It's work with shelving and things like that which is ideal for these people wishing to learn how to join a work force and learn more about libraries, so it's a two-way thing.
PN3585
I have no further questions.
PN3586
**** NOEL JEFFREY HOELSCHER XXN MS HEAP
PN3587
MS HEAP: Commissioner, can the witness be given a copy of the Redland Shire Council certified agreement, please?
PN3588
Mr Hoelscher, is that a copy of the Redland Shire Council certified agreement certified before Commissioner Blades on 12 November 2002 in force until 30 June 2005?---Yes.
PN3589
I tender that agreement in these proceedings, Commissioner.
PN3590
THE COMMISSIONER: I will mark that as exhibit ASU15.
PN3591
MS HEAP: Mr Hoelscher, that's the current certified agreement that applies at Redlands?---Yes.
PN3592
Can I take you to Clause 8 of that agreement which is the grievance dispute resolution procedure?---Yes.
PN3593
Mr Hoelscher, does the grievance dispute resolution procedure require various things to be done by certain times?---Yes.
PN3594
And is it the intention behind that procedure that matters would be dealt with expeditiously in order to ensure that problems don't fester at the workplace level; is that correct?---I believe so.
**** NOEL JEFFREY HOELSCHER XXN MS HEAP
PN3595
And do you think that's an important part of dealing with matters that aren't disputes or concerns raised by employees that they be dealt with expeditiously?---If possible, yes.
PN3596
Can I take you to Clause 19 of the agreement which is time off in lieu of overtime?---Yes.
PN3597
Is this the provision that applies to all Federal award employees in the council?---Yes.
PN3598
And is the process, time off in lieu of overtime, that this is a generally flexible arrangement within which people bank hours in lieu of the overtime that they work; is that correct?---Yes.
PN3599
And the banking of those hours mean that they take the time or they bank up the time at a time for time rate?---Yes.
PN3600
It's not a penalty rate provision?---No, not initially, no.
PN3601
Right. And I think at 19.10.3 it introduces the concept that if the employer is initiating overtime beyond a certain amount per day then that it starts to accumulate at overtime rates; is that correct?---Well, not according to what it says there, no.
PN3602
Can we go to 19.10.3? It says:
PN3603
A supervisor may request the employee to work additional hours that will bank as toil at ordinary rates under the following guidelines.
**** NOEL JEFFREY HOELSCHER XXN MS HEAP
PN3604
Is that right?---Yes.
PN3605
And at (a) it says:
PN3606
The first 45 minutes of toil worked per occasion at the supervisor's request will be banked at ordinary rates.
PN3607
Is that right?---Yes.
PN3608
And the time worked over and above the first 45 minutes on any one each occasion at the supervisor's request will be banked at overtime rates?---Yes.
PN3609
Okay. And that's what applies in the council?---I believe so.
PN3610
Okay. And under this provision people either take the time in lieu - sorry, do all employees have to take the time in lieu or does anyone get it paid out?---There have been occasions when people have had it paid out if they resigned from council with a toil balance and other times like that. There have also been situations - unusual situations - where the employee was not able to take it because they were on a particular urgent project or whatever it is and it's been paid out in those situations as well.
PN3611
And would it be paid out normally at overtime rates or at single time rates?---At overtime rates.
PN3612
Okay. The principle behind the way you apply this at Redlands is that people get paid for what they've worked whether it be single - whether it be taking the time at single time or whether it be being paid out, the overtime?---Yes.
**** NOEL JEFFREY HOELSCHER XXN MS HEAP
PN3613
Can I take you back to Clause 18, Local Area Work Agreements?---Yes.
PN3614
It says at 18.1:
PN3615
Changes to existing employment conditions which contribute to increased productivity in employee benefits can be initiated by employees, union and management through consultation at the workplace level.
PN3616
?---Yes.
PN3617
And, as I understand the intent of this clause, where those benefits are available to the organisation and to the employees you would then enter into a dialogue about what's called a local area work agreement; is that right?---Yes.
PN3618
And Local Area Work Agreements can include flexibilities, that include changing the hours of work of employees?---Yes.
PN3619
And changing the overtime arrangements that apply?---Yes.
PN3620
Changing, for instance, the minimum engagement period for employees?---Possibly. Certainly haven't done that, but possibly.
PN3621
And the idea is that if the Council gets flexibilities that are important for it from a point of view of productivity or customer service, the employees would get a benefit off-setting that; is that correct?---Yes.
PN3622
And does Council have any Local Work Area Agreements?---Yes.
**** NOEL JEFFREY HOELSCHER XXN MS HEAP
PN3623
And where do they exist currently in the Council?---At this point in time there is only one, and that is covering State Award employees on Stradbroke Island.
PN3624
At Stradbroke Island?---Yes.
PN3625
Okay. You don't have any in the other areas of the Council?---No.
PN3626
Have you pursued them in any other areas of the Council?---Yes, there has been some discussion by both employees and Council. To date, none have been, you know, signed off on, but there is some discussions about them.
PN3627
Can I take you, Mr Hoelscher, to what I understand to be part of schedule A, additional causes relevant to Federal Award employees at Clause 39 of the agreement?---Of the agreement. You mean, encouragement?
PN3628
No, standby for emergency work?---My 29 is - - -
PN3629
Sorry, 39, sorry?---39, sorry.
PN3630
It was my fault, Mr Hoelscher. I should speak up?---Yes.
PN3631
That is the provision that applies to Federal Award employees?---Yes.
PN3632
And the standby rate contained in the agreement is $150 per week; is that correct?---Yes.
PN3633
And it says that the officers called out on emergency work while receiving standby allowance shall be entitled to payment for such work not less than one hour salary at ordinary time rates, and thereafter for time worked in each 24-hour period?---Yes.
**** NOEL JEFFREY HOELSCHER XXN MS HEAP
PN3634
Okay. The amount of $150; how is that struck in the Council?---Sorry, how did it - - -
PN3635
How did that come about in the Council?---I can't answer that question. I believe it was probably custom and practice, but I honestly can't answer the question.
PN3636
So it probably reflected what the Council was paying, or close to?---I would assume so, but I don't know.
PN3637
And do people, from your experience, who are on standby, have any other benefits?---I think there are some local arrangements in place that are not specified by the award, so I would have to say no.
PN3638
Sorry, you think that there are some arrangements in place; is that correct?---Well, there may be vehicles that can be driven home, you know, those sorts of things, which are - I believe there is a vehicle available for call-out people who take it home, you know, but it is not a written - it is not a written entitlement.
PN3639
Right. But one presumes that if they are going to be on call to go out and do the work that they would have a vehicle anyway to do that; is that correct?---Well, yes, I think, normally, but not always, because it depends on the nature of how they are picked up and whether they need two people, and one might pick the other up, all those sorts of things.
PN3640
But the availability of a vehicle might be seen as a bit of a tool of trade in those circumstances?---Could be, yes.
PN3641
Yes. Do you have people who do work on standby remotely, like from laptop at home, water people ring - - -?---Yes, well, I think that we are right in the middle of installing that sort of equipment right now, so I don't know if it is actually available right now, but certainly will be.
**** NOEL JEFFREY HOELSCHER XXN MS HEAP
PN3642
And in those circumstances, would the provision of a laptop, for example, be a bit of a tool of trade in the same way a car might be?---It could be, yes, I - I don't think we have that yet, but it could be.
PN3643
Similarly, if you had things like mobile phones so that the people could be contactable, that would be sort of - would normally be provided?---I wouldn't see that that would be, because mobile phones are only used for work purposes, so I wouldn't think that that would be seen as a - could be a tool of trade, yes, but I don't think it would be seen as an advantage. Maybe a disadvantage, because you can call all hours of the night.
PN3644
Turn it off. Can I take you to the next page of the agreement?---Sorry, which page?
PN3645
The next page, and to Clause 41.3. Clause 41 is the hours of duty provision, and there is a general statement at 41.1 about the hours of - ordinary hours at the Council?---Are you on 41.3.2?
PN3646
No, I am at 41.1 at the moment, sorry, Mr Hoelscher?---41.1, yes, I have got it, yes.
PN3647
Yes. That is a general provision; is that right, about the ordinary hours of work?---Yes.
PN3648
Yes. And it says at 41.2 the ordinary hours of duty of an employee may be altered as to the spread of hours by agreement between the Council and the relevant parties?---Yes.
PN3649
Yes. And such agreement shall be recorded as a LAWA, I understand is the vernacular these days - a Local Area Work Agreement?---Yes.
**** NOEL JEFFREY HOELSCHER XXN MS HEAP
PN3650
And any such LAWA may include annualising of hours or annualising of pay; is that right?---Yes.
PN3651
Right. And then it goes on to provide for some specific provisions; is that in different work areas, I am presuming? So there is the customer service centre employees?---Yes.
PN3652
And it makes clear that these are Federal Award employees?---Yes.
PN3653
Yes. And it goes on to provide that there - effectively, I think, what is provided for at (e) is an expanded span of ordinary hours within the agreement?---At "end", did you say?
PN3654
At (e)?---(e).
PN3655
So 8 to 8 Monday to Friday?---Yes.
PN3656
6 to 6 Monday to Friday, and 8 to 4.30 on Saturdays; is that correct?---Yes. Looks like it.
PN3657
And the provision under that Act (i) says that the way you will go about this is, firstly, by sourcing volunteers within the work group team, to do that work?---Yes.
PN3658
And secondly, sourcing other volunteer replacements to ensure the work is completed. You can see that at roman numeral (ii)?---Yes.
PN3659
And then finally, by the manager, if - I presume, if they don't get volunteers - by the manager being able to, with seven days' notice, require people to do that, but they have got to take account of their work and family responsibilities?---Absolutely.
**** NOEL JEFFREY HOELSCHER XXN MS HEAP
PN3660
Yes. Mr Hoelscher, do you accept that that is a fairly significant expansion of the ordinary hours for employees working in that customer service centre?---I don't know if it would be significant. It is a variation.
PN3661
It is a variation that provides greater flexibility for the Council?---Yes. And employees.
PN3662
And can I go over the page, Mr Hoelscher, at - and at 41.3.2, and the title above it seems to imply that that is provision for library employees?---Yes.
PN3663
Right. And it makes it clear again that it is Federal Award employees?---Yes.
PN3664
And a similar set-up is provided here for library employees, except for the band-width at (c) is 8 till 8 Monday to Friday, and 8 to 4.30 Saturday?---Yes.
PN3665
I also understand, from looking at (e), that you have the provision for shiftwork arrangements, as well, in the library?---Yes.
PN3666
Until what time are your libraries open, Mr Hoelscher?---It is 9 pm.
PN3667
Nine. Given that your libraries are open until 9 pm, what is the difficulty with school students who you say need to have time to do shelving, having the three-hour minimum engagement period?---The difficulty is with - in two forms. One is that we are informed by potential candidates, or potential people who wish to do that work, they would like to do it in smaller shifts. They all have homework to do, and in this day and age it is quite a considerable amount of time to be spent on homework and assignments. They like to do smaller shifts or two hour blocks, if they were available, on some occasions. And secondly, it may be that there is only two hours worth of shelving to do on some occasions.
**** NOEL JEFFREY HOELSCHER XXN MS HEAP
PN3668
Right. So you're saying on some occasions there may not be the availability of work?---That's one of the reasons, yes. But I think that probably if I had them - looked at those two reasons, the request that we get are probably a bigger reason for us wanting to do that.
PN3669
Right?---Because we get a lot of people wanting to do it, and they only want to do a couple of hours.
PN3670
Okay, so presumably one way of an individual balancing that is to say, "Well, I won't do more than one shift in a week, I'll just do the one shift in the week, and then I've got my time for study and those sorts of things"?---I wouldn't presume to try and tell these people how they should do their homework.
PN3671
It's not your view is it, Mr Hoelscher, that the whole of the Federal Award needs to be - take into account school students' concerns about whether or not they can fit two or three hours work at the end of a school day in?---Sorry?
PN3672
Is it your view that the Federal Award needs to be varied to two hour engagements so that students from school can feel more comfortable about whether or not they do two hour or three hours at the end of the school day?---Yes.
PN3673
It is your view?---It is my view, yes. I put that in my submission.
PN3674
Can those students work on the weekend, in the library?---Do they?
PN3675
Can they - do they, and can they?---Yes.
PN3676
And one presumes that in relation to arrangements at the library, if you wanted to you could negotiate a Local Area Work Agreement that applies at the library for library employees?---Yes, that would be possible. Undesirable, but possible.
**** NOEL JEFFREY HOELSCHER XXN MS HEAP
PN3677
Why undesirable?---Well, we take the view that with Local Area Work Agreements, as we don't have very many, we have one, but we certainly take the view that it would be difficult to negotiate a Local Area Work Agreement fairly with a population that was very much transient, in that they're working very short hours or they're not employees at all at the time. We take the view that really it would not be technically possible or advisable for us to negotiate a Local Area Work Agreement in such an area where it is mostly casual employees.
PN3678
In your libraries, are all of the casuals school students?---No. No, a lot are, but not all, no.
PN3679
How many of your casuals are based in the library?---Well, a fairly large percentage of our casuals. We really only have numbers of casuals in two areas, and one is the library.
PN3680
And where is the other one, sorry?---At school aged care.
PN3681
School aged care, after school care?---Yes.
PN3682
Yes. If I was to say to you that in Mr Clough's statement tendered in these proceedings, the table that he's provided, I understand, gathered for survey in councils that you had 57 casual employees, is that - would that be about right, do you think?---In total?
PN3683
Yes - no Federal Award employees?---Yes, but in total?
PN3684
Yes?---Yes, approximately, yes.
PN3685
And from your estimation, how many would be in the library?---35 or so.
**** NOEL JEFFREY HOELSCHER XXN MS HEAP
PN3686
So the overwhelming majority?---Majority, yes.
PN3687
And of those, what is the proportion of the school students versus other casuals?---Well, it does vary, you know. They change regularly. I would say 70-80 per cent, something like that.
PN3688
Other students?---60 per cent maybe. Yes, are students, yes.
PN3689
Right, and the other employees who are casuals in the libraries other than the students, are they long serving casuals?---No. No, we take the view that casual employees are genuinely casual employees. And we have an internal guideline, like a policy. It's a guideline that covers the organisation that actually prevents the employment of long - you know, in inverted commas, long term casuals. Because I personally view - and the council's view is that they actually don't - they're not really casuals, the employees. So we have the view that casuals are casual employees working either for a short term project or short term purpose, or on irregular hours.
PN3690
Right. That may change from week - day to day or week to week?---That must change, yes.
PN3691
Right?---Yes.
PN3692
So sort of employed intermittently?---Yes.
PN3693
Right, okay. I've mentioned Mr Clough's statement, were you asked by Mr Clough to provide actual details of the casuals at Redlands?---Well, I personally wasn't. But he may have got that information from my team.
PN3694
And you're not aware of a request of that nature?---No, but I wouldn't necessarily be. He may have contacted the payroll person or something like that.
**** NOEL JEFFREY HOELSCHER XXN MS HEAP
PN3695
Okay. Can I take you now, Mr Hoelscher, to - sorry, just one more question about the casuals. Are the majority of your casuals women?---Probably, but not overwhelmingly. We are conscious of gender balance in all of our recruitment and everything. And so we certainly - I know that we have a number of males in those positions. But I think the majority probably are, but - - -
PN3696
Federal Award employees?---Sorry, are you talking about casuals in the library?
PN3697
Yes?---Yes.
PN3698
Yes, okay, thank you. Can I take you to clause 48 of your enterprise agreement?---Clause 38?
PN3699
48, sorry?---48. Sorry, it's the old age.
PN3700
No, I think it's me. I think I'm possibly mumbling, Mr Hoelscher. It's headed, "Staff appraisal and development systems"?---Yes.
PN3701
And I understand from what you've said in your statement and also from what Mr Watson has put to you this morning - this afternoon - morning, I'm not sure where we are. It's probably still morning, just. That you have an annual appraisal system, is that right?---Yes.
PN3702
Okay. And what do you at that - annually, with the employees?---What do we do with it?
**** NOEL JEFFREY HOELSCHER XXN MS HEAP
PN3703
Yes. No, annually. What does that annual system - process involve?---The process involves - commences at the beginning of the year and where the employee and their supervisor or appraiser determine their objectives for the upcoming year. And then throughout the year on a quarterly basis, review that unofficially. Or informally. And then at the end of the year there's a formal evaluation of those objectives and the achievement against those objectives. And those objectives flow out of the position accountabilities in the position description.
PN3704
Right. And do you do that with both full-time and part-time employees?---Yes.
PN3705
So objectives are set for part-time employees for the year as well?---Yes.
PN3706
Right. And do you do it with casual employees?---No.
PN3707
No. Because you've got true casuals?---Yes.
PN3708
And at that process, would it be expected at least on that annual formal review that you would review the position description and make sure it is correct?---Yes, that is one of the times when that may be looked at. It can be looked at at any time, but it may be looked at at that time.
PN3709
And in discussing this issue with employees, would the manager sit down and talk to them about their duties and responsibilities?---Yes.
PN3710
And clarifications or changes that might have happened in relation to that?---I would hope not, but yes, that can happen. I would hope not because that should have been done on a daily basis or weekly basis. But if it hadn't been, then that's the time to catch up.
**** NOEL JEFFREY HOELSCHER XXN MS HEAP
PN3711
And would they talk to them about sort of just providing information about what is happening in the organisation that might impact on their position?---No, I wouldn't think that would be discussed at that time, no.
PN3712
That would be through a different process?---Yes.
PN3713
Okay?---Normal communication process.
PN3714
Would they talk to them about their skills and the skills development that they want them to go through?---Yes.
PN3715
And those sorts of things?---Yes.
PN3716
And the responsibilities that they might have for the next 12 months?---In skills development, do you mean?
PN3717
And generally?---Both of those things happen. They are two separate components of it, but one component is to develop the objectives for the following upcoming year again, and also to complete an individual development plan for the individual, should they choose to - should they want one. They do that in conjunction with the manager and the employee, yes.
PN3718
So all of this feedback occurs and it is recorded in a documents, is that right?---Yes.
PN3719
And it's the staff development plan or something of that nature?---Yes, individual development plan.
PN3720
Okay. If a person is concerned that they are not being classified correctly, I think you have said that they can raise it at any time, is that right?---Yes.
**** NOEL JEFFREY HOELSCHER XXN MS HEAP
PN3721
And they would go through a process?---Yes.
PN3722
And that's a process documented at council?---Yes.
PN3723
And the process involves them providing information about why they think they should be at the higher level?---Yes.
PN3724
Or classified differently?---Yes.
PN3725
And the process presumably means that you make an assessment for council, that is?---Yes.
PN3726
And you either accept or reject their application?---Yes, a few steps in the middle there, but yes, basically.
PN3727
And do they have a right for appeal if they don't like the outcome?---Not internally.
PN3728
So what's the process for them if they want to, an external process?---Well, obviously, any person can raise a dispute and take an issue to the Industrial Commission.
PN3729
And they take it through the agreements and disputes settlement procedure?---Yes, so that's not specifically for that but it can be and has been used for that.
PN3730
Are employees able to have employee representatives or union representatives in that process assisting them?---Yes.
**** NOEL JEFFREY HOELSCHER XXN MS HEAP
PN3731
Have you got a copy of the ASU's application in this matter in front of you?---Yes, I believe so. Yes, this is the one with the outline of contentions.
PN3732
No, we will make that you have got the right one in front of you?---Okay.
PN3733
Can I take you to clause 8 of that proposed variation. Is that in front of you?---Yes.
PN3734
8.1 says:
PN3735
Positions will be classified in accordance with the level definitions provided for in schedule A of the award.
PN3736
I think I have already heard you so today that you absolutely commit that that what's you do at Redlands?---Yes.
PN3737
At 8.2, it says, to ensure that employees are correctly classified, each employer will at least every two years provide in writing to the employee, the following information?---Yes.
PN3738
And it says that the information provided must accurately the role being performed. Can you see that?---Yes.
PN3739
Is that what you do on an annual basis, in the process you have just described?---I think not specifically, but generally, yes.
PN3740
So if we were to say - put up against this criteria, the Redlands process, you would generally be meeting that criteria?---Yes.
**** NOEL JEFFREY HOELSCHER XXN MS HEAP
PN3741
And you do it annually?---Yes.
PN3742
And 8.3, it says:
PN3743
Any officer paid to this award may make a written request for a position reclassification on an annual basis or at the time of the staff development review.
PN3744
Can you see that?---Yes.
PN3745
Would that be consistent with procedures available at Redlands?---Yes.
PN3746
It says also that a written request can be lodged at any time where the position has been restructured or duties or responsibilities have changed and I think you have already said that that is also the proposal that Redlands - - -?---Yes.
PN3747
At Redlands, if a person is successful in their claim for a reclassification when does the pay increase apply from?---It's a relatively complex answer to that question.
PN3748
I am happy to hear it?---Because it depends on a number of things. If a position has changed so significantly that the position is going to be evaluated at a higher level then we consider that that position is no longer in place and we have a new position in place and therefore the old position is redundant. Because obviously, there must have been a significant change in that position for it to be evaluated at a higher level. So that being the case, we go through a selection process for that position and under normal circumstances, the higher level applies as of when the new position is filled.
PN3749
So, you effectively do what is called a spilling of the positions?---You may call it that, yes. We wouldn't.
**** NOEL JEFFREY HOELSCHER XXN MS HEAP
PN3750
Even though the person may have been doing the job already?---Well, we contend that they shouldn't have been doing the job because we hadn't asked them to do that job yet.
PN3751
Are there no circumstances within your organisation where jobs evolve and people don't catch up with the fact that it might be at a higher level?---Yes, they do.
PN3752
That does happen. We take the view that that change in position or change in requirements of the position, we make that point fairly clearly, that it is the change in the requirements of the position. So in other words, the manager requires something different of that position than they used to require. That process can take a period of time. Like it could happen over a period of months or we would hope it wouldn't be years but certainly over a period of months. So sometimes, it's not as black and white as when did it actually happen, we have to say okay, well, it changed between January and June. When did it actually change significantly enough to create a new position. We have to come to some agreement, I suppose as to when that may have been.
PN3753
So I understand that a consequence of what you are saying is that it's certainly not the case that people are out there willy nilly inventing new roles for themselves but it's a process of their job evolving over time?---The requirements of the job as required by the manager evolves over time, yes.
PN3754
What would happen if an employee - if you believed an employee was being paid a higher level than what was appropriate in the award?---If the role evolved and changed and was re-evaluated at a lower level, you mean?
PN3755
For whatever reason you came to the conclusion that we are paying band five and effectively, it's a band four job?---Well, unless something changes, that cannot be the case in our situation because we have evaluated all Federal Award positions and they are all correct. That's the view that we have. Now, if something changes, either way, if technology comes in and takes away one whole section of a job for example, that potentially could create a position that is new and at a higher level or new and at a lower level.
**** NOEL JEFFREY HOELSCHER XXN MS HEAP
PN3756
So you would apply the redundancy process to a lower level as well. Is that correct?---Yes. That doesn't mean the individual is redundant of course, we have a redeployment process and no individual has been forced out on redundancy, as a result of that.
PN3757
So you wouldn't believe that you could just say, okay, well, we've initiated a process because we think you are being paid too much at a higher level than what you should be and we should be able to review that and review it down and that rate will now apply to you?---No.
PN3758
Intervening, you would go, well, it's now a different job and the job you were doing was redundant and we would go through a process around that?---Mm. It could be that that employee chooses to take a lower level role or not. I mean, that's a matter of choice.
PN3759
Can I take you, Mr Hoelscher, to clause 50 of your enterprise agreement?---Yes.
PN3760
It's in relation to regular part time work and it says that regular part time work may be worked without attracting the ten percent allowance where it is instigated by the employees. Is that correct?---Yes.
PN3761
So what I understand for that provision is that if the organisation instigates part time employment, the 10 percent applies?---Yes.
PN3762
And if the employee comes along and says, look it would benefit my work and family circumstances to - for whatever reason, I am doing study or I just want a change - then the 10 percent doesn't apply?---Correct.
PN3763
Mr Watson has taken you to paragraph 5 of your second statement, which is referring, I think, to Mr Smith's statement. Can you see that?---This is the statement of 1 December?
**** NOEL JEFFREY HOELSCHER XXN MS HEAP
PN3764
Yes, that's correct?---Yes.
PN3765
Mr Hoelscher, isn't it the case that the dispute between the employees and the ASU and the council in this matter is that the council has provided the same job description to employees and requires them to do the same job but you've given a classification of 7 for some and 6 for others?---No.
PN3766
That's not the case?---That's not the case.
PN3767
What is the case?---The case is they have different position descriptions.
PN3768
I understand that the manager of these people have given evidence in these proceedings before the Commission that they do the same job?---That's not what you asked me. You asked me whether the position description is the same and my answer was, no, they are not.
PN3769
Okay. Do they do the same job?---No.
PN3770
So you're in dispute with your manager who manages these people. Is that correct?---No. That manager is no longer working with council and so technically we're not in dispute with that manager, no.
PN3771
I hope it's not a consequent of him giving evidence, Mr Hoelscher?---Absolutely not. She went on to a much higher paid job.
PN3772
Good for him, excellent?---Her.
PN3773
Oh, her, very good - even better in my view?
**** NOEL JEFFREY HOELSCHER XXN MS HEAP
PN3774
MR WATSON: ..... pick up on that one.
PN3775
MS HEAP: It was a slip-up, wasn't it, on my behalf. It was a big presumption.
PN3776
Do you understand that that is at least what the ASU believes the problem to be?---I do understand that.
PN3777
And what you say is that we have a disagreement of a view about that?---Yes.
PN3778
Right. Can I take you back to the issue of standby. Who in Redlands is on standby? Who are the Federal Award employees on standby?---I'm not sure that I could tell you all of who they are. I believe - - -
PN3779
Not personally who they are, what type of functions?---Some of the Redlands Water and Waste supervisors would be, I believe. But I would say that the vast majority of people on standby in Redland Shire Council would be State Award covered.
PN3780
Right. And you pay the State Award provisions?---Yes.
PN3781
Or do you pay the enterprise agreement provisions? So does this apply - that's just Federal Award?---That is, yes.
PN3782
And do you understand that the State Award provisions for standby are far greater than the Federal Award provisions for standby?---Yes.
PN3783
And is it just a matter of circumstance that the majority of employees who are on standby do the type of work that falls into State Award employees?---Well, yes, it's to do with the award coverage.
**** NOEL JEFFREY HOELSCHER XXN MS HEAP
PN3784
I have no further questions for this witness.
PN3785
THE COMMISSIONER: Thank you. Ms King?
PN3786
MS KING: I have no further questions.
PN3787
PN3788
MR WATSON: Mr Hoelscher, if you can just go back to the application before the Commission that my learned friend took you to. Can we go to clause 8.2 again?---Yes.
PN3789
I would ask you to note the wording. It says:
PN3790
To ensure that all employees are correctly classified, each employer will at least every two years provide in writing to each employee, taking into account schedule A.
PN3791
How does that relate to what you do, about which my learned friend asked you in relation to your process at the present time?---Well, that would cause a significant problem with the process that we have which we believe is thorough and fair.
**** NOEL JEFFREY HOELSCHER RXN MR WATSON
PN3792
Sorry, what would cause a significant problem?---Using this process and using the position description and schedule A as the basis for position evaluation would cause us major problem. We believe that no position description can accurately encompass all aspects of any role. You just can't do it. And so we have a process that underpins the position description and relates to schedule A, but it picks up all of the non-specific and difficult to describe aspects of any role, for example: responsibility, scope of the role, impact of the role, and other aspects of the role like that. If it was confined to this process here, they would not be picked up, and I think we would end up with two results. One would be very lengthy, complex and difficult to read position descriptions that would encourage disputes, and they wouldn't pick up all of the aspects of the role that currently our system does pick up.
PN3793
How does what is set out in 8.2 compare to the performance appraisals that you do on an annual basis, I understand?
PN3794
MS HEAP: He's actually given evidence about this.
PN3795
MR WATSON: Sorry?
PN3796
MS HEAP: He's actually given evidence about this. It says "compares directly".
PN3797
MR WATSON: I'm talking in relation to 8.2?---I would say similar to that.
PN3798
All right. And 8.3?---I think that that would cause considerable distress and problems for employees.
**** NOEL JEFFREY HOELSCHER RXN MR WATSON
PN3799
Why do you say that?---I believe that it would encourage people to apply for a position evaluation on an annual basis anyway, as a matter of course. Everyone would apply for a position evaluation, 650 per year, because it's like saying, "Well, that's the time to apply. You should do it then." So everyone applies at that time. It would become a practice, I believe, that we would end up doing 650 position evaluations a year and I think that would create distinct expectations in employees which in most cases you would have to say would not be fulfilled unless everything is changing completely every day which doesn't happen. So, you know, a lot of those people would have unfulfilled expectations of getting a pay increase every year and I think that would be destabilising on employees and as well as that would be extremely expensive and time consuming for council. I know that because we recently did do all the position evaluations and it cost well in excess of $100,000. So I know that it is expensive.
PN3800
How do you calculate that?---Sorry?
PN3801
How do you calculate that. When you say $100,000 - - -?---Well, that was what was paid to consultants to do the job, and that's how much it actually cost and that didn't include the writing of the position descriptions with up to 30 iterations between the employee, the manager and the HR team who were assisting. It was an extremely time-consuming process, 18 months.
PN3802
I have no further questions.
PN3803
THE COMMISSIONER: Thank you.
PN3804
MR WATSON: May this witness be excused?
PN3805
THE COMMISSIONER: He may. Thank you, Mr Hoelscher.
<THE WITNESS WITHDREW [12.20pm]
PN3806
MR WATSON: Mr Kennedy, your full name is Graham, spelt G-r-a-h-a-m?---Yes.
PN3807
Dale Kennedy?---Yes.
PN3808
And you're the human resource manager at the Ipswich City Council?---That is true.
PN3809
And your office is situated at 37 South Street, Ipswich?---That is correct.
PN3810
For the purpose of these proceedings, have you made a statement dated 3 December 2004? Can you have a look at this document please? Do you recognise that as the statement that you prepared and is that your signature on the second page?---Yes, that's correct.
PN3811
I tender that.
PN3812
THE COMMISSIONER: That will be exhibit LGAQ14.
PN3813
MR WATSON: I have no further questions.
PN3814
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN3815
MS HEAP: Commissioner, can I provide to the witness and yourself a copy of the Ipswich City Council certified agreement?---Thank you.
PN3816
Mr Kennedy, you've got a copy of that agreement in front of you. Is that the Ipswich City Council certified agreement 2002?---I believe it is, yes.
PN3817
And it's an agreement that was certified on 31 January and it runs until 1 October 2005. Is that correct?---That is correct.
PN3818
I tender that agreement in these proceedings, Commissioner.
PN3819
THE COMMISSIONER: It will be exhibit ASU16.
EXHIBIT #ASU16 IPSWICH CITY COUNCIL CERTIFIED AGREEMENT 2002
PN3820
MS HEAP: Mr Kennedy, can I take you to the definitions section of that agreement - sorry, just to confirm that is the current agreement in place?---That is correct.
PN3821
And can I take you to the definition of casual employee?---On page?
PN3822
It's the fifth page on mine, but I'm not sure we've got the same - it's actually under the definitions under C, I presume - C for casual employee?---Yes.
PN3823
Do you see there casual employee is defined as:
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN3824
A person who is employed for intermittent work which does not have a guarantee of a full week's work each week, nor an ongoing employment relationship.
PN3825
Is that correct?---Yes, that's what it says.
PN3826
And is that how the council applies casual work in your circumstances?---Yes, well, that's what's written in our agreement.
PN3827
How many casuals do you have at council?---Off the top of my head I couldn't give an exact figure. I would imagine - it varies tremendously at any given time because we run a civic hall which may employ 20 casuals one night, so within a given day we might have 60 or 70 casuals and another day we might have 20 or 30, so it goes up and down fairly - - -
PN3828
If I was to say to you that in the witness statement of Mr Clough from the LGAQ in these proceedings, he states that there's 76 Federal Award casual employees at Ipswich, would that be reasonable?---As I said, it would vary greatly day by day, but it could be a figure at any given time, yes.
PN3829
And do you know what the average length of service of the casuals is?---Do you mean in hours, days, weeks?
PN3830
Are they employed beyond six months?---Well, not in a fixed period. They're employed by the how, but you mean how long have they ever been employed by council or how - I don't - they're casuals by nature, employed on every occasion on a separate, on an individual basis.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN3831
So you don't have any casuals at your council who have been regularly employed for periods of time?---We have casuals who are employed on a regular basis, but it would vary as to when and where and how and I would say virtually all of our casuals would be employed by - you know, on a short-term basis when - on a needs basis. There would be some that would work on a consistent basis, but I would - in other words, they're on our books continuously, but they are employed on a needs basis, depending on the needs at the time.
PN3832
Right. The Federal Ward casuals, are they employed - where are they mainly employed in the council?---Probably in the library service, I would say.
PN3833
And are the majority of those employees women?---Probably right, yes. I've never actually analysed the figures but I would imagine that the majority would be females, yes.
PN3834
And what sort of functions do they perform in the library?---Well, our library works on a seven-day week basis. If a staff member drops out sick or if there is a need for someone to work on a short-term basis, then a casual would come in. There are probably some casuals that work regularly, depending upon needs. I have never sat down and actually analysed their times worked or when they work or how they work, but it's pretty much on a needs basis.
PN3835
So things like your bookshelving, is that usually done by casuals or is it done by ongoing employees?---Well, we have casual librarians. We have casuals at all sorts of levels. Some casuals would certainly do bookshelving.
PN3836
So your libraries, I think you were saying are seven days a week. Is that right?---That's right.
PN3837
All of them are open seven days a week?---Not all of them, no. But we do run library services on seven days a week.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN3838
How many libraries do you have?---Four. I think it's four libraries.
PN3839
And what hours of operation are the libraries open on a day?---I'm not certain of the exact times, and it varies library to library, but the main library opens I think at 9.00 am and they go till late in the evening - 8 or 9 o'clock. I'm not sure of the exact time.
PN3840
Thank you. Can I take you to clause 90 of your enterprise agreement?---Under which section? There's three sections.
PN3841
It's listed as clause 9 and I'm dealing at the beginning?---Under Job Security? Is that the one?
PN3842
Yes, it's head Job Security?---Yes.
PN3843
And it says - can you see under the third star point it says:
PN3844
Council's preferred employment option is to engage a competitive workforce comprising predominantly permanent full-time and permanent part-time employees. Where appropriate, casual or temporary employees may be engaged.
PN3845
Do you see that?---Yes.
PN3846
Is that a fair statement of the way council applies its casual and temporary arrangements?---I believe that's correct.
PN3847
So your preference is for full-time and part-time employees?---That's correct.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN3848
In what circumstances do you use temporary employees?---Well, there are different types of temporary employees. We have temporary employees who fill in if there is an absence due to sick-leave, people on leave to back-fill the position. We have temporaries employed on a project basis, where there is an additional needs, where we need someone with additional skills for a short time to fill that need. Times when people are on - you know, move up on a higher-duties basis, might be a vacancy that hasn't been filled, and people have moved up and left a vacancy at the lower level, where I put a temporary on to fill that position.
PN3849
Whilst you are going through a process of appointing for the new - - -?---Going through the process of appointing, yes.
PN3850
Okay. Are they the main circumstances for temporaries?---Off the top of my head, I - they would be the predominant temporaries, yes.
PN3851
And do you have a sense of the length of - average length of service the temporary employees?---Well, we have an arrangement within house, an internal procedure that we report to our management executive of temporaries that are employed over a certain period of time, and that goes to our enterprise consultative - enterprise bargaining consultative committee, and we have given an undertaken that temporaries will be employed for under nine months, and only in instances where it is a project employment or fixed-term employment where it is designated how long a person will be appointed for. Do we go over that and its policed pretty tightly. There are instances where we have had temporaries for longer than the nine months, but there is always - a report goes to the CEO on any of those instances.
PN3852
And - - -?---So it is policed fairly closely.
PN3853
Are you saying your enterprise bargaining consultative committee also gets those reports and can monitor that?---They do, yes. Yes, we give them three-monthly reports on the terms of temporaries employed.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN3854
And I think that is a provision in your enterprise agreement, isn't it, that process for temporaries?---I believe it is mentioned in there, yes.
PN3855
Yes. And I mean - is the reason for that is that everyone in the organisation likes to keep a check on the fact that temporaries are truly temporary and not being used for ongoing employment circumstances?---The general basis is that we fill positions, and the only time we would have a temporary is if there is a need of a specialist nature or one of the circumstances that I mentioned previously.
PN3856
And that is in line with your commitment under the enterprise agreement for predominantly full-time and part-time permanent employment in the Council?---That is correct, yes.
PN3857
And in fact, if you go over the page under 9 there is actually a statement that says specifically - at the last statement in 9:
PN3858
Ipswich City Council shall review the current status of casual and temporary employees and appointments to vacant positions by reporting to the enterprise Agreement Consultative Committee on a six-monthly basis on the numbers of those employees and the period of their employment.
PN3859
?---That is correct.
PN3860
And that is the process that you were just referring to?---That is right.
PN3861
Can I take you to Clause 15, flexible working arrangements?---Yes.
PN3862
And in that clause, it says:
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN3863
The parties are in agreement with the principle of flexible working arrangements. The decision on whether a particular branch or section works under a flexible work arrangement will be made after consultation and a vote in agreement with the proposal of 75 per cent of the workers affected.
PN3864
Can you see that?---Yes.
PN3865
And the support of management and the relevant union.
PN3866
Those are the components that have to be supportive of it?---Yes.
PN3867
Any party to the above agreement can withdraw from any flexible work arrangement entered into under this clause upon giving one month's notice.
PN3868
?---Yes.
PN3869
Are any of those flexible work agreements - arrangement/agreements in place in the Council?---There have been several attempts to establish flexible working arrangements that we - on a number of occasions we haven't achieved a 75 per cent approval vote from the workers. We have small - small arrangements where there have been trials tried in a couple of instances, but they have been predominantly State Award people.
PN3870
Right. What is the reason for having the 75 per cent majority approval?---It dates back to an arrangement that some years ago - and I talking back in the late 80s - where there was changes made to the hours of duty, and for staff within Ipswich and the old - what was the Moreton Shire - and there was an agreement reached - a proposal that staff work additional hours per week, and part of that agreement was that there had to be 75 per cent agreement to - for it to be adopted within a certain area. And so that sort of 75 per cent flowed into this clause. I believe that was - - -
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN3871
Was it your understanding that that sort of provision is there to ensure that the majority of employees genuinely agree to the change?---That is - well, it is the general idea, is if you are going to try something different and the actual workers aren't supportive of it, it probably won't be successful anyway, so it is best to get the parties on side to start with, yes.
PN3872
Yes. And in most of these arrangements, do the flexibilities that Council gets out of it, are they balanced out by some benefits to the employees?---Generally, there is a trade-off of some sort, yes.
PN3873
Right. So at the end of the day, everyone is happy with the arrangement and doesn't think - feel that they are disadvantaged by the process, in an overall sense?---Well, we like to work in a consultative process, yes.
PN3874
MR WATSON: Unless you are one of the 25 per cent.
PN3875
MS HEAP: Who feels completely disenfranchised from the process?---It is - you can please some of the people some of the time, but never all of the people all of the time, I am afraid.
PN3876
THE COMMISSIONER: Tell me about it.
PN3877
MR WATSON: Industrial democracy.
PN3878
MS HEAP: That is right, it is industrial democracy, and we are pleased to see it happening.
PN3879
Can I take you to Clause 31 of your agreement, which is classification issues?---Yes.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN3880
And as I understand this clause, there is a view that there might be a review of the salary structure, but you are awaiting the outcome of some proceedings in the Queensland Industrial Relations Commission; is that correct?---Are you referring to Clause (b) under the - - -
PN3881
31(a)?---31(a), yes. Yes, well, there is a - there is an exercise being undertaken in the - in relation to the State Award employees, and at - back in the year when this was being negotiated it was anticipated there would be a resolution of that issue fairly soon. That hasn't quite occurred, I don't think.
PN3882
It is now becoming an extensive exercise; is that correct?---The matter is moving along at the pace of a drunken snail, I would say, at the time being. There is no immediate resolution foreseen, I don't believe, so it is - that cause is looked upon with some jest, I am afraid.
PN3883
Well, having - I am presuming that you are not having a go at any of the particular parties involved when you referred to the drunken snail?---I would never be so presumptuous, no.
PN3884
As I understand it, under this clause under paragraph (c), that is the positions defined in appendix B?---Yes, that is the - - -
PN3885
That is the Federal Award employees, basically?---Federal Award positions, that is right.
PN3886
Okay. So this is the process for classification issues with Federal Award employees?---That is correct.
PN3887
And you say here a position description which accurately reflects - describes he roles, duties and responsibilities of each position within the classification shown in appendix B will be maintained by the Council; is that correct?---Yes.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN3888
And copies of replaced position description will be kept on the Council record for record purposes?---Yes.
PN3889
Yes. And it says here - sorry, how often do you - do you have an annual review process in the Council?---We have an annual performance appraisal, and part of the performance appraisal exercise is that the supervisor and the employee will go through the position description for that position to ensure that the PD is still an accurate statement of what actually the person is doing, or what the position is actually doing.
PN3890
The parties are then required to sign off on the position description saying that they have discussed it and have come to agreement as to what is correct and what not correct. If there are changes to the position description and they are agreed that - both parties agree that the changes are accurate, then they sign off and a new position description is adopted and put on to our system. If the changes are significant to the point where either party consider that a classification change may be warranted then that position description is examined usually by the HR area in conjunction with that branch and it's determined whether or not the changes have - do, in fact, warrant a reclassification.
PN3891
Right. And you carry out that process on an annual basis. Is that correct?---We carry out a review of the position description on an annual basis but probably only - I'd say probably less than five per cent would actually need to have an audit done on the classifications - - -
PN3892
Yes, okay?--- - - - because change - any changes would be generally very minor and there are no significant changes. That's the general idea, so it only reaches a point where you need to re-do an audit in a very small number of cases.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN3893
And in your experience of that annual review process does that normally result in a wholesale attempt by employees to see themselves reclassified to a higher level?---Generally, no, on the basis that they are only minor changes or very small changes to their position description. And the - the actual - the process is to ensure that what the position description is saying is an accurate representation of the duties performed. And that generally applies. It's only in small instances - small number of instances that there have been significant changes.
PN3894
Right. And in your view is it important that you do have that accurate position description so everyone knows what the situation is?---Yes, I - I believe that it is important that an accurate statement is held on record of what that job is doing.
PN3895
For the council and for the employee?---For - yes, definitely that if - that it's easy then for both parties then to pull in that document and say, well, this is the job and if there is any disputation there is an agreed document there which states this is what the job is and this is what the person does and both parties have signed it off to ensure that it's an accurate statement.
PN3896
And, presumably, then if you get that accurate statement it helps you to say, well, this is what - it helps you to make the assessment of where they fit then within the award?---Well, if you - - -
PN3897
You're not having to argue the position statement plus where they fit in the award?---If - if you don't have an accurate statement of what the person is doing, well, how do you argue about what the person is doing?
PN3898
Yes. And it can create a lot of confusion because some people think that they are doing things or that they are responsible for things and sometimes they are not?---That is correct, yes.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN3899
In your process if people go through - if they think that they should be at a higher level within the award, a band within the award, what would they do to raise that within Council?---First of all that they - if it's outside of that performance appraisal process or even if it was in the performance appraisal process I would request them to write a - nothing too elaborate but a report suggesting why they consider that their current classification is not accurate and we generally refer to the definitions under the Schedule A and we look at relativities within the organisation to some extent and using the definitions in the award we make our judgment.
PN3900
Okay. And they make a request. You review that request. Not you personally necessarily, but the Council?---Yes.
PN3901
It might be you personally. Is it you?---It's generally me, yes.
PN3902
You poor thing. And - - - ?---Someone has got to hate somebody.
PN3903
That's right. It's always HR, isn't it? And you tell - you advise them of the outcome and it could be that they were successful and it could be that they weren't successful. Is that right?---That is correct.
PN3904
And do they have an appeal process if they don't agree with the outcome?---We have a dispute process built into our EBA which - generally it means it goes to the CEO for consideration or if that can't resolve it then wonderful organisations like the ASU may get involved.
PN3905
Excellent. So there's no difficulty with people having employee representation or a union representation through this process from your point of view?---No, we certainly are not prejudiced against the ASU within the organisation.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN3906
And in your experience is it important for people to understand that - the basis upon which they can make a review; that it's not just because things have changed, that you've got to demonstrate that it's in a different band within the award?---It's important that they must demonstrate that the changes first of all are significant. In other words they - it's not a very minor change in duties. It's important that they understand that the changes are of a more complex nature or of a more - there is more responsibilities or that the duties are more onerous and we refer to the definitions such as they are in Schedule A.
PN3907
And I understand from looking at your enterprise agreement and the third star point underneath paragraph (c) that you say that such review shall be conducted as quickly as practicable but in no case shall take more than six weeks. Is that correct?---That's our goal, yes.
PN3908
That's regardless of your workload, I understand, Mr Hoelscher?---Mr Kennedy, thanks.
PN3909
MR WATSON: No, that's Mr Kennedy.
PN3910
MS HEAP: Mr Kennedy. Sorry, I'm very confused?---That's all right.
PN3911
They didn't take your workload into account when they put these things into - - - ?---We endeavour to treat them with high priority to ensure that staff aren't dissatisfied.
PN3912
Excellent. And if a person gets a reclassification or their application is successful when does the date of increase apply from?---It varies. It varies. If the change was a very significant change and it was some time in the past we have been known to back-date reclassifications because they were performing that higher function from that date. Generally it goes from the date of approval of the classification. That's the general principle because staff are usually not reticent in coming forward if they think there has been changes.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN3913
It's funny that, isn't it?---Yes.
PN3914
Okay. Can I take you - can the witness be shown a copy of the ASUs application in this matter.
PN3915
THE COMMISSIONER: Before you do that, I take it you will be a while with Mr Kennedy yet?
PN3916
MS HEAP: Probably another 20 minutes, Commissioner.
PN3917
THE COMMISSIONER: We might adjourn for lunch and resume at 2 o'clock.
LUNCHEON ADJOURNMENT [12.49pm]
RESUMED [2.04pm]
PN3918
THE COMMISSIONER: Ms Heap?
PN3919
MS HEAP: Thank you, Commissioner. Could I remind the witness that you remain under oath in the continuing proceedings. Mr Kennedy, I was about to take you before the break to the ASUs application in these proceedings. Can I take you to that now. Can you open the application so that you have in front of you clause 8, have you got that there?---Yes.
PN3920
Thank you. And you recall that before the break we were talking about the arrangements that applied as a result of your agreement at Ipswich?---Yes.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN3921
If I take you to 8.1 of the application, it says here that:
PN3922
Positions will be classified in accordance with the level definitions provided for in schedule A of this award.
PN3923
?---Yes.
PN3924
Is that how you classify people, in accordance with schedule A?---That's the predominant method used, yes.
PN3925
And at 8.2 it says:
PN3926
To ensure that all employees are correctly classified, each employer will at least every two years provide in writing to each employee the following:
PN3927
And it sets out some details. Do you see that?---Yes.
PN3928
And it says:
PN3929
The information provided must accurately reflect the role being performed.
PN3930
Can you see that?---Yes.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN3931
Is the process that is envisaged there the same process that you do on an annual basis as Ipswich?---The descriptions pretty much follow. Requirements of the job are included, skills, knowledge, experience required. Yes, they're shown in our selection criteria. Responsibilities of the position are shown. We don't - well, we - it's not a specific exercise where we provide it in writing, as part of our performance appraisal, they go through the PD. But it's not a written notice to - we advise them that we're going through - they get a written notice there's a performance appraisal, and part of that appraisal will be that they will go through their position description with their supervisor. So I suppose that's part of the process.
PN3932
And your position descriptions would cover most of - it may not in exactly the same terms, but would generally cover that information?---We don't have the extent of authority of the position shown I don't believe in the position description.
PN3933
Right, okay. But you have the other elements there?---Yes, pretty much so, yes.
PN3934
And do you agree with the statement that an employee should be provided the information - if they are provided information about their role, it should be information which accurately reflects the role that they perform?---Well, it wouldn't be much value in giving them information that didn't describe the position. Yes, that's true.
PN3935
And, Mr Kennedy, could I take you to 8.3, where it says:
PN3936
Any officer or party to this award may make a written request for a position classification on an annual basis, or at the time of the staff development review.
PN3937
Can you see that?---Yes.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN3938
Continuing:
PN3939
And a written request for review can also be lodged with the council at any time where a position has been restructured, or the duties and responsibilities have changed.
PN3940
?---Yes.
PN3941
Is it the case at Ipswich that people have that facility available to them?---That's shown in our EBA that people can request that their classification be reviewed. Given that they supply reasons for doing so.
PN3942
And I think we've talked about the reasons for doing so issue?---That's right.
PN3943
And it's important that they - - -?---There should be significant change and - etcetera, etcetera.
PN3944
Yes. And if I take you to 8.4, which is - it states:
PN3945
The grounds for which a request for review may be made are, having regard to the classification definitions within schedule A, as follows: Identifiable changes in the nature and work value of the duties performed.
PN3946
?---Yes, the only difference would be that we have a degree of change, we specify a degree of change.
PN3947
Yes?---In other words, there has to be significant change, not just change.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN3948
Yes. Okay, I'll come to that point in a second?---Yes, okay.
PN3949
Continuing:
PN3950
Increases in responsibilities.
PN3951
?---Yes.
PN3952
And:
PN3953
Changes in skills, knowledge and experience required.
PN3954
?---Yes.
PN3955
Right. And the important part here is:
PN3956
Such that the duties of the position as required to be performed by the individual when assessed against the classification definitions, place them in the higher band.
PN3957
?---Yes, in the view of the person making the application.
PN3958
Yes, certainly?---Yes.
PN3959
But the idea is that the changes would have to be such, or the increases in responsibilities, the change in the nature of the work value would have to be such that you were a five and now you're a six?---In your eyes, yes.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN3960
Yes. Well - - -?---Yes, I understand.
PN3961
Do you accept that that is effectively what people would need to demonstrate?---Yes, they would have to demonstrate there is such - there is change such to - such that the duty - the responsibilities, the duties they perform would place them in a higher definition grouping, yes.
PN3962
Right, thank you. And I think you've already stated that at Ipswich there is no difficulty with a person having a representative, either a union or an employee representative, assist them through the process?---We have no objections to people who seek assistance in relation to a classification change. No, that's correct.
PN3963
Thank you. Mr Kennedy, could I take you to appendix B in this agreement? And as I think we've clarified, appendix B is the terms and conditions of employment for Federal Award employees?---So we're back to the Ipswich EBA?
PN3964
Sorry. Yes, the certified agreement, sorry?---Right, yes. Appendix B, clause? Clause in appendix B?
PN3965
1.5, localised agreements?---Yes, sorry. Yes.
PN3966
Appendix B is Federal Award employees, correct?---That's correct.
PN3967
And 1.5 is localised agreements. And it states:
PN3968
The parties to this enterprise agreement may agree in writing to a variation in the terms of the parent award, or this agreement by reason of circumstance of a localised nature.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN3969
You see that?---That's correct, yes.
PN3970
Yes:
PN3971
And to initiate steps toward such an agreement, a party shall forward a written request to the other parties.
PN3972
And set out the details of the request?---Yes.
PN3973
And:
PN3974
There is a responsibility within a reasonable period of time to respond.
PN3975
And:
PN3976
Upon agreement being reached, there is a registrable agreement shall be prepared binding the parties involved.
PN3977
?---Yes,
PN3978
Is that included in the agreement to be a facility that allows for flexible arrangements to be made at the local level?---That was the intention, yes.
PN3979
And it sits with the other part of your agreement, which provides for flexibility?---That is correct.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN3980
And have you accessed this provision in the enterprise agreement?---There are parts of the agreement which initially commenced using that. I'm trying to think of an instance recently. The instances where we have used it in the past are now parts of the agreement. So it's a - yes, there's a schedule at the back in the libraries area, and that was initiated using that clause. So it was - that was part of the process.
PN3981
So you have had an experience of this - a provision of that - of a similar nature being accessed and utilised?---Yes.
PN3982
For the organisation to gain flexibilities?---That's right.
PN3983
And can I take you to salary increments, the next clause in the agreement?---Yes.
PN3984
Continuing:
PN3985
Movement to the next highest salary point within a level by way of annual increment, subject to 12 months service, and in accordance with the staff development appraisal system.
PN3986
?---Yes.
PN3987
And we talked about I think the part-time employees do this process as well?---Yes.
PN3988
And you set out for those people - the expectations for the 12 months?---Yes.
PN3989
That they are to meet - it is the same as you would a full-time employee?---Yes.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN3990
All right. And on what basis do you pay salary increments to part-time employees?---That's a good question. I am - I believe that we pay them on a proportionate basis, that is shared over - if you're working 50 per cent of the time you get - you have to accrue the same hours as a full-time equivalent. I believe that's how it is done.
PN3991
You're not sure about that?---I'm not 100 per cent certain, but I believe that's how it is done.
PN3992
Okay. If the criteria for a person who is a part-time employee has been set for the 12 months, and they meet the criteria, why wouldn't they get their increment on a pro rata basis in terms of their salary?---The advice we've received is that for equity to prevail, the person should get an increment on the basis of equivalent - full-time equivalent person.
PN3993
Where has that advice come from?---Initially I believe it was from the LGAQ.
PN3994
Can I take you to clause 2.3, Standby for After-Hours Work?---Yes.
PN3995
And to paragraph (a):
PN3996
An officer who is required by the department to be on call or standby for after-hours work shall be paid an allowance at the rate of $150 for each week.
PN3997
?---Yes.
PN3998
Is that the standby provision that applies for Federal Award employees at Ipswich?---That is the cash part of the arrangement, yes - the dollar part of the arrangement, yes.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN3999
And there are other parts of the arrangements?---Well, the clause is (a), (b), (c), (d), (e), (f), so all of those subclauses apply.
PN4000
So the subclauses set out what they would be paid if they then had to work - - -?---Well, there are other provisions in there. For instance, that an officer is required - like (f) defines that a person is provided with a motor vehicle and that there's a telephone provided and it just sets out the general conditions applicable to that person.
PN4001
Right?---So it's sort of a package arrangement.
PN4002
Right. And they get to use the vehicle for limited private use, is that right?---Yes.
PN4003
Would it be the case that most employees on standby would have a council vehicle anyway in terms of at least commuter use in order for them to go out and do the call-out, to do the work associated with being called out?---Some do, some don't. There are people like people in the computing area and IT, those sorts of people, who don't have a vehicle provided, but if they're on call then council provides them with a vehicle for the term they're on call. So there's some that do and some that don't.
PN4004
Right?---But probably - yes, the majority would have commuter use, but there are instances - two or three instances that come to mind where the vehicle is provided for that term that they're on call.
PN4005
Right, okay. And you mentioned the computer, IT people. Is it the case at Ipswich that people do - who are on call do work remotely in terms of fixing things up? They don't have to go in to the council - - -?---Some do, some don't again. There are some people that have the ability to fix some faults through a computer system, depending on the nature of the fault. If the fault is a different nature, they have to come in to the main office and some people have to come into the office or their work location every time there's a fault. So it depends on what the job is.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN4006
Right, okay. Do you have people on arrangements whereby it's known that they will never have to come in, so that their availability is just to be available on the end of a phone, or is everyone required to be either on the end of the phone but also having to come in to the council if necessary?---I doubt if there's anybody that never has to come in. There are some people who predominantly don't come in. In other words, they can fix the majority of the faults from their home but on occasions they would have to come in, if there was - depending on the nature of the fault.
PN4007
And who at Ipswich are - who, in terms of the positions, are the Federal Award employees on standby?---We've got EHOs, we've got customer service people.
PN4008
EHOs are environmental health officers?---That's right, sorry. We have some inspectorial staff, I believe. We've got supervisors in the field in water and sewerage particularly. We have - most of the customer service people, if there's a fault in the overall communication system that they could call in. We have media people who, if something happens, they're on call. The majority would be supervisory staff though, the supervised State Award people that have faults in water systems or sewerage systems, I'd say.
PN4009
Okay. And they all receive this amount for being available 24/7 basically?---That's right, yes.
PN4010
Can I take you to clause 3, and at 3.1 Overtime, and specifically to (i), which I understand is dealing with the provision of the overtime for employees who are on the first incremental level, level 6?---Level 6, yes.
PN4011
Yes. And it states here that in the event that such agreement - sorry, it states that:
PN4012
Where the officer requests, and the officer's manager agrees that such subclause shall not apply.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN4013
Sorry, it says:
PN4014
Provided that subclause (a), (b), (c) and (c) of this clause shall not apply to an officer in receipt of a salary equal to or in excess of the first incremental level 6 on the general salary scale except for where the officer requests and the officer's manager agrees that such subclause shall not apply.
PN4015
Is that right?---Yes.
PN4016
Continuing:
PN4017
In the event that such agreement is not reached, then such officer may, upon claiming for overtime -
PN4018
and I understand that that means those people on level 6 and above?---Yes.
PN4019
Continuing:
PN4020
Shall be given time off equivalent to time worked, either outside the spread of ordinary hours -
PN4021
is that right?---Yes.
PN4022
Continuing:
PN4023
or in excess of the ordinary weekly hours.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN4024
?---Yes.
PN4025
Continuing:
PN4026
Such time off to be taken within 12 months and if the person has made a request for taking off of overtime and it has been refused and it has not been taken within 12 months, then they get paid it out at the overtime penalty rates.
PN4027
?---That is correct. That's what it says. That's for people covered by the EBA. That's level 6 to level 8.
PN4028
Right. That's what applies currently at Ipswich?---Yes.
PN4029
And so the idea behind this scenario is that - as I understand it - the person, the general rule should be that they should be taking time off in lieu?---Yes.
PN4030
Rather than being paid overtime?---Yes.
PN4031
And they should be clearing that time in lieu within 12 months?---Yes.
PN4032
And if they haven't cleared it within 12 months and it's because the organisation has refused a request in relation to it?---That's correct.
PN4033
They will be paid it at overtime rates?---That's what it says.
PN4034
So all employees at Ipswich, level 6 to 8, get something for their work, for overtime work. Is that right? They either get the time in lieu or they get paid it at overtime rates?---That's correct.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN4035
Can I take you over the page to - sorry, can I just take you to 3.2, which is hours of duty?---Yes.
PN4036
As I understand it, what this agreement makes provision for is employees working 38 hours a week and employees working 40.5 hours per week?---That's correct.
PN4037
And that's the provision for rostered days off or 19 day months?---No, the standard hours at Ipswich are a 38-hour week for Federal staff, unless they're supervising State Award staff, where it becomes 40.5 hours per week.
PN4038
Okay. So they have longer standard hours under this agreement than they would have under the award?---That's correct.
PN4039
Right. And if you go to option 1, hours of duties for officers working a 38-hour week, what I understand the agreement now does is allow for a range of flexible options for the way that they will work those working hours. Is that right?---There is a schedule attached which specifies a flexi-time agreement arrangement within the office.
PN4040
And generally speaking, if I summarise it this way - and tell me if I'm not right - the flexible options include an extended span of ordinary hours and the ability for people to work five out of any seven days at ordinary time rates. Is that right?---No, it doesn't go to that extent. It's Monday to Friday under the flex agreement, and there's core hours staff must work, but they can work extended hours or shortened hours for the day, depending on business or the needs of the office. And then if they accumulate - they can accumulate hours and have a day off to compensate for those accumulated hours.
PN4041
Right?---If staff by special agreement, which is another area of - work five out of any seven, then overtime provisions apply to the five - there's penalties applying to the five out of the - on the Saturday and Sunday duties, sorry.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN4042
Okay?---So the Monday to Friday there's no penalties if people work the hours as specified in the flex arrangement.
PN4043
But the penalties as per the award apply for the other days?---The Saturday and Sunday duty the penalties are - mirror the award, I believe, yes.
PN4044
Right. Okay. But this does give the provision for the Council - for the Council and for the employees to work an extended spread to meet both the Council's needs and the employee's individual needs?---That's right. It's - it's supposed to work as a consultative process when there's high demand for work and the staff will work longer hours and if there's not such a busy period then they would take the accumulated hours off.
PN4045
Can I take you to 3.6 Casual Employment?---Yes.
PN4046
And in your definition I think you reinforce the definition that you have in your definition section, which is quite useful to have that consistency?---Right.
PN4047
It doesn't always occur, believe it or not. You reinforce the concept there that casual employees cater for peaks and labour demand. They should not be employed for extended fixed periods, nor should they be used permanently to replace permanent employees?---That's the aim, yes.
PN4048
Okay. And employees employed on a long-term fixed term arrangement shall be employed as permanent part-time employees?---That's correct, yes.
PN4049
And over the page at - sorry, at 2 you provide for ordinary hours of casual officers to be 7.6 in any one day or 38 in any one week. Is that right?---That's correct.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN4050
And that they are to be worked within an extended span, is that right, between 6.30 am and 9.30 pm, Mondays to Fridays?---That's correct.
PN4051
And you also include Saturday mornings as ordinary hours?---Yes.
PN4052
Right. And under 3, Minimum Period of Engagement, you have three hour engagement for casuals. Is that correct?---Except for staff employed in libraries with the agreement of the union may be employed for a minimum of two hours.
PN4053
Right. And so you have a provision there that allows for flexibility for casual engagement in libraries?---Yes.
PN4054
Can I just take you to the (ix) Casual Loading. And it says:
PN4055
The parties to this agreement commit to review the issue of the allowance paid for casual employment should there be a change in the Federal Award rate during this agreement.
PN4056
?---Yes.
PN4057
Is that there because there were - when you were building this agreement or negotiating this agreement there was consideration given to the fact that the casual loading in the award might change?---There was - there was action being taken in the State area to revise casual rates and to cover the possibility that the rates might affect the Federal area that clause was put in to - we agreed to adjust our rates if the award rates did change, yes.
PN4058
And, in fact, in the State area it went from 19 per cent to 23 per cent, didn't it?---That's correct.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN4059
And it's 23 per cent loading that applies to your State employees casual?---That's correct in the State, yes.
PN4060
Thank you. And at 3.7 you have a temporary employment provision?---Yes.
PN4061
And, again, you reiterate, I think, this concept that you have that temporaries should be temporary and you define it as being not exceeding a period of six calendar months within any period of 12 months. Correct?---Without agreement of the union.
PN4062
Or in some special circumstances, as I - - - ?---Yes.
PN4063
- - - read the rest of that clause?---Yes.
PN4064
Okay. And if I could just take you to Schedule 5, which is the Ipswich City Council Library and Information Services?---Yes.
PN4065
Is this the schedule that you were referring to before when you said that there's that provision that allowed for negotiations at the local level had resulted in some arrangements that had been incorporated into the agreement. Is this an example of that?---That's an example, yes.
PN4066
Right. And this provision provides for particular employment arrangements for the Library Service?---Yes, that's correct.
PN4067
And it includes the provision possibly of shift work?---Yes.
PN4068
And rostering arrangements?---That's correct.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN4069
And so those are the flexibilities that the Council has been able to achieve through negotiations for the library?---That is correct.
PN4070
Mr Kennedy, do you have people employed on fixed term contract at Ipswich?---Yes, we do.
PN4071
In what circumstances are they - who is employed on a fixed term contract?---Our department heads and third level managers. They are like branch head type people.
PN4072
So is it limited to senior executives within the organisation?---That's correct.
PN4073
And are they on a contract which purports to set a term of their employment?---The contracts do set a term, yes.
PN4074
And at the end of that term are they - is it expected that the Council can say, "Your contract has expired and your employment with this organisation is no longer ongoing"?---Council does have the right under the terms in the contract to make such a decision, yes.
PN4075
And does the Council have the right to terminate the contract during the life of the contract?---Under specified conditions they do, yes.
PN4076
And do you know what those specified conditions are?---Where Council deems that the person is not performing the functions in accordance with the definitions provided. In other words, they are not performing - or not able to competently perform the duties of the position is the primary reason.
PN4077
Can they terminate for any other reason?---Yes, they can. As long as they give a set period of notice they can terminate the contract for other reasons, yes.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN4078
And can the employee terminate the contract?---Yes, the employee can as long as they give a set period of notice, yes.
PN4079
And how much is the notice that the employee has to give?---It varies from contract to contract depending upon the term negotiated, but generally it's a one month period, but it does go to three months at times.
PN4080
And the employer, how much notice do they have to give?---I believe it's three months in the majority of cases.
PN4081
And do these contracts override award provisions in some instances, or agreement provisions?---No. They're tied to the award provisions.
PN4082
So they don't have a - do the people on these contracts get paid for hours in accordance with the agreement or the award?---The agreement only covers officers from level one to eight under the award. So these people are in excess of level eight.
PN4083
So they're getting salaries in excess of level eight in the award?---Yes.
PN4084
And are they getting other benefits associated with being on a term contract?---Depending - each contract is different because it's deal is negotiated but there are other benefits that are certainly given to some people.
PN4085
Is it the case that those benefits are seen to compensate for the fact that they are on a fixed term arrangement?---No, it's part of the package of employment in the position. The position is advertised on the basis that it is a fixed term appointment and the package remuneration is negotiated with that person. So it's not so much as a reward for being a fixed term, it's part of an overall package that's negotiated with that employee.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN4086
Can I show you a document. Mr Kennedy, this is a document entitled Young Talent Time, are you ready for our new generation of high achievers. See that?---Yes.
PN4087
And is this the document that is at the web site that you refer to in your statement at paragraph five?---That is part of the - I used a short extract, I did put in my statement, yes.
PN4088
Can I tender that document, Commissioner.
PN4089
PN4090
MS HEAP: Mr Kennedy, you make the statement that at paragraph five:
PN4091
With respect to the clause entitled method of engagement is widely recognised by human resource professionals that the expectation in relation to employment conditions amongst young professionals are vastly different to those of ten years ago.
PN4092
?---That's true.
PN4093
And you refer to this web site and to this paper which is at that location?---I refer to that short extract out of that paper, yes.
PN4094
And you say that:
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN4095
The Australian Human Resources Institute recently had a document attached to their website which included the following statement. Firms are failing to deliver many of the things young professionals want. 40 percent say they will leave their present firm in two years. 7 percent plan to stay for five years or more and 73 percent have been approached about another job.
PN4096
?---Yes.
PN4097
And if we look at that document, is that what is stated on the first page of that document?---That's an extract from that document page, yes.
PN4098
You go on to say, it's been our experience which is consistent with the above quote that employees do not want to be tied for long periods to one employer and they frequently request a desire to be employed on a fixed term contractual basis?---That's correct.
PN4099
If I can just take you to this document. This document is a document - a power point presentation presented by Price Waterhouse Coopers, is that correct?---The total document, I will take your word, yes, it's under their name, yes.
PN4100
And really, what this document is about is a presentation about what Price Waterhouse Coopers is doing with its employees. Is that fair to say?---I just took that statistical data out of the front of that document. I was just looking for some statistics to justify my perception of what happens in the industry and what effect it is having on how council is an employer and those figures seem to support what we have observed in real life.
PN4101
So you're not referring to this document as a sort of academic portrayal of what goes on generally for Generation X people or Generation Y people?---What I am saying was that those figures seem to support my perceived view of what younger people are seeking in their employment and the problems that we have in employing people in our industry or in our council.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN4102
Mr Kennedy, this statement that firms are failing to deliver many of the things young professionals want?---Mm.
PN4103
And then the statistics about how many employees are leaving?---Mm.
PN4104
Is it a fair assessment to say on reading that, that the emphasis is on that firms are failing to deliver what, young people want?---They are failing to recognise what young people want is what I was getting at, yes.
PN4105
In the context of what Price Waterhouse Coopers is doing with its staff in its circumstance, it then goes to talk about what they believe young people want in this document?---Well, it's not - the actual statement wasn't a Price Waterhouse statement, it came from Riding the Wave, 1999, the Career Innovation Research Group.
PN4106
It might have been better if we'd had Riding the Wave but we've got this document?---Yes.
PN4107
Interestingly enough, I think if you go through the document, it purports to sort of group people within generation X and generation Y and we all gasp at the fact that probably most of us in this room don't fall into either of those two categories which is a bit of a worry. But effectively, there is a list in here of a variety of things what's described as being generation X career expectations. If you go to the seventh page in. Can you see that?---What's the heading.
PN4108
Generation X Career Expectations?---Yes.
PN4109
And it states that they need to feel that their work is important. They value performance feedback, want to improve their skills, attachment to work is calculated and limited; they value opportunities to develop themselves; they expect their managers to be role models; they want to be well paid; are happy to work long hours but desire a balance?---Yes.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN4110
And their greatest commitment is to their immediate colleagues?---Yes. I was just looking at generation Y over the page.
PN4111
Yes, and generation Y, yes. So a factor of them is that two thirds in the same job for less than five years and one third changing jobs every three years?---Yes.
PN4112
Increased emphasis on self personal skills and development?---Yes.
PN4113
Comfortable with change?---Yes.
PN4114
Want to earn incomes that support ambitious lifestyles?---Yes.
PN4115
Value happy family life outside of work and work and life balance?---Yes.
PN4116
High expectations.
PN4117
THE COMMISSIONER: And this makes them different from every other generation, how?
PN4118
MS HEAP: Yes, exactly my point, I think, Commissioner. It all sounds relatively familiar and I don't think I fall into those categories but if I was to say to you that, for whatever it's worth and it's a question about whether it's worth very much, that that description describes a lot of people regardless of what their age is in employment in local government?---I think if you went back and asked the question 10 to 15 years ago of what an employee in local government, what their view of their future was, I know when I started it was very important that you establish a career and establish yourself in the organisation and you saw yourself working in that organisation for a long time and hopefully progressing up the ladder to achieve some sort of higher status.
**** GRAHAM DALE KENNEDY XXN MS HEAP
And that was a pretty common role - I think most employees wanted to hang around, get ahead and have a good reliable sort of employment and I don't believe that applies today where in certain industries, particularly amongst professional groups where it is very easy for them to gain employment in other areas. You know, there's a huge demand for engineers, accountants, town planners, those sorts of people. They can walk into a job anywhere at any time virtually.
PN4119
Yes, so what you are really saying is that for people who have got options, they might exercise those options or they've got specialist skills?---A high percentage of these people are now coming to us and saying, we want more money. We don't want a career here. We want to gain what skills we can gain from your organisation. We want to do well, be paid well, we will do a good job for you but in two years time we will probably want to move on somewhere else. That's quite a common attitude now where they want to come to you with a two year contract and move on and that's quite often you find that you are negotiating and if you don't offer that sort of flexibility they work through employers, contract employers. Especially IT people, it's very common that if you want a programmer now, a company will come to you and say, look we've got five programmers employed in our organisation, they will provide that service to you for two years but they don't want to work for you. They just want a contract for two years and then move on because they see it if they are in an organisation for more than two years, they know everything about that organisation. They've picked up every skill they can and they want to move somewhere else and get different skills.
PN4120
Mr Kennedy, isn't it the case that if they were employed under the award or the agreement provisions, these employees could leave whenever they want - - -?---This is true.
PN4121
- - - by giving the requisite amount of notice?---Yes.
PN4122
So really when you say they're looking for fixed term contracts, what they're looking for is the enhanced benefits issue; they're looking for more money and more benefits?---That's part of the deal. They don't want to make a commitment to the organisation.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN4123
Yes, right. In your view, that's what they're doing?---To a large extent, yes.
PN4124
Yes. And we're talking about - in the context of overall local government employment, we're talking about a narrow range. I mean, your examples were young professionals particularly working in specialist areas where there is a peak demand?---They are the essential linchpin though in the organisation. If we don't get planners and if we don't accountants, if we don't have engineers, the place will stop, and - - -
PN4125
Yes, I understand. I'm not devaluing their role, but I'm saying that it's - - -?---No, no. What I'm saying - yes, okay, it's a small percentage of our total workforce, but it's an essential part of our workforce.
PN4126
And the clout that they've got, if you like, at the moment is that they're in short supply?---This is true.
PN4127
Right, okay. And they've got specialist skills that you need?---They can specify what they want. They are there saying, "I can get a job anywhere. What are you going to offer me to come?"
PN4128
And they're in a very different bargaining position, aren't they, to your Level 4 administrative officer in the council, who may be as valuable but whose skills aren't that specialist or where there is not a short supply of - - -?---That's true, yes.
PN4129
And if I was also to say to you that in terms of those Generation X and Generation Y characteristics - again, for what they're worth - many of those are mutually contradictory or conflicting: "I want this money" and "I want this thing"; "I want these"; "I'm prepared to work these hours but I want work and family balance as well", that would be a fair statement to make, wouldn't it?---Yes.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN4130
And people's use of their situation changes over time?---Yes, there are peaks and troughs.
PN4131
Yes. So you might get a young whiz-bang IT professional saying to you, "This is how I come in on this basis at this time", whose personal circumstances might change and who might want to have an ongoing career with the council?---Everybody is different, but at the moment that's the predominant - the predominant effect is "We can do better deals by negotiating our own arrangements", and they're essential people, and that's the situation we're in.
PN4132
And you can do that, can't you, as long as you're negotiating arrangements which are above the award and the agreement that applies in your organisation?---We can with the existing arrangements, yes.
PN4133
Mr Kennedy, if you look at the ASU's application, if I take you to 17.25, Fixed Term Employment Arrangements - - -?---I think I may be not looking at the right document - 17.20 - - -
PN4134
THE COMMISSIONER: 17.25?---Oh, sorry.
PN4135
MS HEAP: Sorry?---I was looking at 17.225, sorry. Yes.
PN4136
You'd be able to employ people as you described under this provision, wouldn't you?---It depends how you define specialist skill. If you mean that it was a skill that's not necessarily generally available in local government, then we would have a problem. If it was accepted that - a town planner, for instance, isn't a temporary specialist skill, it's a long-term skill; or an IT professional might not be a temporary specialist skill, it might be a long-term skill.
PN4137
Well, it does say that specialist skills that are not available within the organisation for a specified period of time, so it clarifies it's not about the industry?---It does say provided that an officer shall not be employed on a fixed-term basis to fill an ongoing position. That would create a problem for us.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN4138
So you want the ability to have people on fixed-term arrangements that continue on even though they are permanent positions within the organisation?---I'm saying that at the moment, to obtain professional people to provide services that are essential to us times those people are demanding to be employed on that sort of basis.
PN4139
Well, no. I put it to you, Mr Kennedy, what they're demanding is the enhanced benefits that they can negotiate, because they've got a - they've got more flexibility if they're employed in terms of - their view - if you say it's them generating this view, they've got more flexibility in terms of their ability to move under the award or the agreement than they would have under a fixed-term contract, because they just have to give the required notice and go?---They like to have - from my experience, they like to establish a basis of employment. They like to have an established basis of employment so that the expectation is that they will work for two years, and they believe it's better to have that up front or discuss it up front and have it established up front that they are going to be with you for two years and then they're moving on, and they like it all nicely packaged up. And yes, they do try and negotiate a better deal because of that arrangement, but - - -
PN4140
That's fine?--- - - - that's the general - what I've experienced on a number of occasions, that they come and say, "Look, we want a two-year contract", or "We want this" or "We want that", and that is part of their request - quite often that's been part of their request.
PN4141
Is that usually the only way that council offers those benefits?---The times - that's been the only time that we've used those - that's the only time we've used fixed-term contracts with people of that level or people of a very senior level.
PN4142
But you don't apply to your general staff the concept that they could come in without limited tenure but get enhanced benefits?---We've never applied that to a person below Level 8 level within our organisation.
**** GRAHAM DALE KENNEDY XXN MS HEAP
PN4143
So you've never applied this arrangement to the below level 8?---No.
PN4144
Okay. And have you ever put to those people, "Well, no, you can have the enhanced benefits, but you don't have to have the limited term contract"?---We have negotiated over-award payments for people to obtain the correct person, but again, that may be someone who's below a level 8 arrangement and they may not be in a contract arrangement at all but at times it's necessary to offer increased benefits to attract the person who is difficult to obtain.
PN4145
I've got no further questions for this witness.
PN4146
THE COMMISSIONER: Thank you. Ms King?
PN4147
MS KING: Thank you, Commissioner, I have no further questions.
PN4148
THE COMMISSIONER: Thank you. Mr Watson.]
PN4149
PN4150
MR WATSON: Mr Kennedy, I have three matters - three areas that I want to address arising out of cross-examination. Dealing with the issue that you were last cross-examined on, the notion of the person about whom you've been talking, the two-year type contract, and given that within that period they do have the ability to terminate the arrangement, whether it be on a one-month or three-month basis, and move on, is there a reciprocal loyalty that comes from these employees with the giving of a specified term?---Generally there's a benefit to both parties in those sorts of relationships, that we know what to expect from them and they know what to expect from us. In other words, it's all up-front. We come to an agreement that they will do their best job for two years, and then they will move on, and they prefer it that way rather than work
**** GRAHAM DALE KENNEDY RXN MR WATSON
for the organisation and then just resign and leave. We know what our expectation of them is and vice versa. So it's a mutual arrangement that the deal will be for two years and we know what we can get out of them and we know when they're going to leave so we can make preparations well in advance. So we prefer to know when they're leaving and they prefer to know what our expectation of them is, yes.
PN4151
Which is really what I'm driving at. What has been the experience of your council in terms of those expectations being dashed?---On the whole they've been good. It's been a successful arrangement. There have been times when people have wanted to terminate their contract prior to the two-year period, and there's times when people have asked for another 12 months contract at the end of their two-year period or sometimes they want a three-year contract, but it's always up-front. It's always a negotiated arrangement and both parties do well out of it.
PN4152
My learned friend took you to the agreement and she took you to the definition of casual employee which occurs in the first part of the agreement?---Yes.
PN4153
Can I just ask you to look at that again?---Yes.
PN4154
And she then took you to - later on in her cross-examination she took you to the definition of casual officer in clause 3.6 of appendix B?---Mm.
PN4155
I now want to read out to you the definition of casual officer in the Queensland Local Government Officers Award?---Mm.
PN4156
Which is as follows:
PN4157
Casual officer shall mean officer engaged and paid as such by a respondent who is employed on an hourly basis and whose employment is subject to termination at any time without notice.
**** GRAHAM DALE KENNEDY RXN MR WATSON
PN4158
Now, given the two definitions that I've taken you to, which do you understand is closer to the definition in the Local Government Officers Award that I've just read out?---The second one is in 3.6 at the back here.
PN4159
Did you want to have a look at the definitions?---No, it's okay. The first sentence in clause 3.6 is very closely aligned to the award definition.
PN4160
I would suggest it's word for word?---That's right.
PN4161
Thank you. Now, my learned friend also took you to the matter of TOIL and she referred you to 3.1, the same appendix?---Yes.
PN4162
It's page 107?---Yes.
PN4163
I'm curious, am I reading this correctly, that in 3.1(a)(i) where it says:
PN4164
Provided subclauses (a), (b), (c) and (d) of this clause shall not apply to an officer in receipt of a salary equal to in excess of the first increment level on the general salary scale, except where the officer requests and the officer's manager agrees that such subclauses shall not apply.
PN4165
Does that mean that theoretically you can have an officer who agrees to work outside ordinary hours or what we might call overtime hours but not get paid for it?---I think the intention of that sentence, the final section of that, was supposed to mean that a manager can determine that an officer not be granted time in lieu if they are required to work outside of their span of hours or in excess of 38 per week. In other words, that they would get paid overtime straight away rather than get a TOIL.
PN4166
I see, I see. So that in fact they just had access to the overtime rather than TOIL?---That's right.
**** GRAHAM DALE KENNEDY RXN MR WATSON
PN4167
I see?---So the manager can determine that if the person was so valuable to the organisation that he didn't want them accruing TOIL, he would much prefer to pay them the time and a half or double time as normal overtime and get it over and done with.
PN4168
I see?---So I think that was the intention.
PN4169
I had in mind an altruistic employee who may have been concerned about their taxation considerations with work, without having to actually make money out of it?---There's not many of us left there, Mr Watson.
PN4170
I suppose I need to .....
PN4171
MS HEAP: Just the 10 of us in this room.
PN4172
MR WATSON: I have no further questions.
PN4173
PN4174
PN4175
MR WATSON: Your full names are Kenneth James McLoughlin. McLoughlin spelled M-c-L-o-u-g-h-l-i-n?---That's correct.
PN4176
And you are the manager people developer - the manager for people development, or manager people development, for Toowoomba City Council?---That's correct as well.
PN4177
Thank you. And your offices are at 153 Herries, H-e-r-r-i-e-s Street, Toowoomba?---That's correct.
PN4178
For the purposes of these proceedings, have you completed and signed two statements, one dated 5 November 2004 and - well, one undated, but following that statement. And can you have a look at these two documents please? Firstly, if you have a look at the one dated 5 November 2004. Is that your signature?---It is.
PN4179
I tender that document.
PN4180
PN4181
MR WATSON: And the next one, and I'm correct, it's not dated except for the year of 2004, is that right, on the second page?---Yes, that's correct.
PN4182
But that bears your signature?---It does.
**** KENNETH JAMES McLOUGHLIN XN MR WATSON
PN4183
I tender that document.
PN4184
PN4185
MR WATSON: Now, Mr McLoughlin, have you had occasion to look at the witness statement filed in these proceedings by Mr David Smith?---Yes, I have.
PN4186
And have you looked at the second of the witness statements filed by Mr Smith, where he talks about your first witness statement, the one dated 5 November?---Yes, I have.
PN4187
Can I take you to - and do you have a copy of Mr Smith's statement with you?---I believe so.
PN4188
Yes. In paragraph 5 of that second statement he says - he commences by saying:
PN4189
I rebut the assertions being made by Mr McLoughlin and believe that they are made on the basis they advantage the commercial interests of the TCC...
PN4190
Being Toowoomba City Council:
PN4191
...rather than addressing the equity considerations contained in the industrial award, which should also form part of the employment relationship.
**** KENNETH JAMES McLOUGHLIN XN MR WATSON
PN4192
What do you say about that?---I'm just trying to trace the history of that. That's part five in respect of - sorry, I'm just trying to follow the documents.
PN4193
Yes?---That's in respect of salary increments?
PN4194
It's a little bit difficult to understand exactly what he's referring to. But I actually understood that he may have been referring to the whole of your statement?---I don't know how to comment to that, in terms of the interests of both the employer and the employees. I can't comment on that assertion in terms of - - -
PN4195
Well, were you looking from the - when you made your statement, were you looking from the point of view of advancing the commercial interests of the Toowoomba City Council?---The short answer to that is no, it's advancing the interest of Toowoomba City Council.
PN4196
Yes. In paragraph 6, going over the page?---Mm.
PN4197
I won't read it out, but do you have any comment about that paragraph?---I think that that was referring to casual employment. And it basically referred to the library, I believe. And the reference in paragraph 7 is to the library, I believe they're connected. There is an issue, we do use university students in our library, and the university students do want short-term employment and casual basis. I can't speak for all other local authorities, but also in our library we do use school students as well. Grade 11 and 12s, 16, 17 year olds in some cases. And most of those people are quite comfortable and do wish to work short periods of time on a casual basis.
PN4198
Yes. In terms of what you are saying in your statement, does it matter where the pool comes from? Or who constitutes the pool that casuals are drawn from?---No, it doesn't matter.
**** KENNETH JAMES McLOUGHLIN XN MR WATSON
PN4199
Clause 8, do you wish to say anything about that?---What it does it - what we've done in the past in terms of casual employment, we review casual employment on an annual basis to see if there are patterns. And if they are genuine casuals and not by a definition which we have, that we resist employing people long term on a consistent basis as casuals. As a result of that, if the pattern is there, we review those people as whether they're real casuals or not. If there is no pattern there and they are genuine casuals, then the casual employment may continue. But we do look for a 12 month pattern, particularly in our areas of the aquatic centre, obviously in Toowoomba. Grass cutting, or the field staff in that particular area, etcetera. Because there are genuine patterns in those particular areas.
PN4200
So do I take it then from that evidence that if you discover a repetitive pattern of work, then you will offer them a different type of employment than a casual arrangement?---That is correct.
PN4201
And what is that likely to be?---It could be a number of things. For example, with our grass cutters, we've got an annualisation of hours arrangement, so that they work longer in summer and shorter in winter. Because - - -
PN4202
Sorry, Mr McLoughlin, unlikely that they'd be covered by the Federal Award?---They are not, no. And same with the swimming pool. But I'm trying to think of ones covered in the Federal arena that we've looked at that have been casuals with a - - -
PN4203
A recurring pattern of work?---Yes, I'm just trying to think of some. I know we went through the list of casuals - I've just digressed for a moment - about three years ago, to look at all casuals to see patterns of employment. And I can't recall too many in the - I can't recall any actually in the - yes, I can. I apologise. There were one or two people who were casuals in the admin that we converted across to permanent status.
PN4204
I take it from your evidence, it sounds like you're fairly rigorous about that in looking at the incidence of a pattern of work for your employees across the council?---Yes. We are committed to keeping good employees. And one of the ways to help keep good employees is to secure them in employment.
**** KENNETH JAMES McLOUGHLIN XN MR WATSON
PN4205
Why would you offer them casual employment in the first place, if that's likely to have happened?---Most - we're talking about covered under the Federal Award?
PN4206
Yes?---Yes. Usually it's only for short term emergency situations. And that's our principle we operate under.
PN4207
Okay. What, can that extend into a more permanent type of arrangement?---If it does, then it's reviewed. And we look at should it be classified as a permanent or temporary position, an appointment. And we have got criteria we use for temporary appointment. And if it's not in one of those categories, it's permanent.
PN4208
Is the position such that that could go in reverse? That you could change to be a regular, whether it be part-time or whatever arrangement you have which isn't casual. But then the nature of the work changes. Has that occurred? So that a more casual arrangement may a more appropriate arrangement?---It could occur. I'm not saying it couldn't. I'm not recalling any situations where that has occurred in recent times. What we commonly - more often have instead of casuals is an increasing number of staff wanting to go from permanent full-time to permanent part-time and such like. So instead of to the casual arrangement as such. So yes, it's - we haven't had that sort of episode very often, no.
PN4209
All right. I don't know if you can comment on paragraph 9 in relation to the surveys that Mr Smith says that his officials have - and representatives have found. Unless of course you can say something about Toowoomba?---I can say something about Toowoomba, because we have reviewed every casual employee in Toowoomba.
PN4210
Yes?---And we do on a regular basis. In actual fact, on a 12 monthly basis we undertake a project, but we do it on a monthly basis, the first of each month. And I can tell you that with any casual employee who has worked regular and consistent hours - and I mean regular being - the type of thing we did discover was a few people working 36 hour - 36-and-a-quarter hours every week, week in, week out. They are not genuine casuals, and they have all be converted.
**** KENNETH JAMES McLOUGHLIN XN MR WATSON
PN4211
Well, going on - what do you say about paragraph 10, because Mr Smith seems to take issue with that?---Well, I can just point out a couple of issues here for a start. It says that:
PN4212
Approximately half of the 18 persons are employed, as such are casuals.
PN4213
Our library staff is considerably more than that. We have got 15 permanent full-time staff in our library. 19 permanent part-time staff, one temporary part-time staff. We have 23 people who are on our casual roster - or our casual list, shall I say, that occasionally work in the library. But are basically able to work every now and again. And at present, just I pulled the figures the other day, those 23 are working in between about seven and 10 hours per week.
PN4214
Is there a regularity about the pattern they are working?---No, it's irregularly regularly. A lot depends on the person's other commitments, etcetera.
PN4215
Yes. And presumably the needs of council as well?---And the needs of council. And the majority of their work is involved in the re-shelving of books etcetera. So it doesn't have to be done at a certain time and a certain period of a certain day.
PN4216
Okay. And then going to paragraph 11, do you want to say anything about that?---.....
PN4217
I think what you've said is in fact different to that?---"Equal number of permanent part-time employees who are performing a range of functions and duties of which are the same or similar in nature to long-term casuals." No - look, I don't agree with that.
PN4218
Yes. Is that because in fact there aren't an equal number of permanent part-time employees who are performing a range of functions and duties?---That's correct.
**** KENNETH JAMES McLOUGHLIN XN MR WATSON
PN4219
According to the figures you've just given evidence of?---Yes.
PN4220
Thank you. I have no further questions.
PN4221
PN4222
MS HEAP: Commissioner, can I hand to the witness a copy of the Toowoomba City Council Certified Agreement?
PN4223
Mr McLoughlin, is this a copy of the Toowoomba City Council Number 4 Extended Certified Agreement 2003?---It certainly appears that way.
PN4224
And it's been certified in the Commission on 21 July 2003, and its operation is until 30 June 2005?---That's correct.
PN4225
And this is the current certified agreement which applies in Toowoomba City Council?---That's correct.
PN4226
I tender that certified agreement, Commissioner.
EXHIBIT #ASU18 TOOWOOMBA CITY COUNCIL NUMBER 4 EXTENDED CERTIFIED AGREEMENT 2003
PN4227
MS HEAP: Mr McLoughlin, can I take you to clause 5 of that agreement, headed Wages, Salaries and Allowances?---Mm.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4228
And specifically at this point to 5.1, Date and Period of Operation Including Wages and Salary Increases. If I take you to 2.1 of 5.1 - - -?---Yes.
PN4229
- - - as I understand it, and I suspect that Toowoomba has one of the more complex certified agreements, if I could say that?---I'm not familiar with every one, but I think it probably would fall into that category.
PN4230
Well, maybe we should call it innovative?---It has been commented on by the Commission as being very thorough.
PN4231
And as I understand it, if I can summarise it this way, and if I get it wrong, please tell me: there is a component of salary increase under the agreement which is related to key performance indicators - the achievement of key performance indicators across the council?---That's correct.
PN4232
Yes. And these key performance indicators relate to initiatives to reduce the labour costs of council and improve the productivity of council and improve its responsiveness to the community, is that right?---Yes. Well, yes, as a generalisation that would be reasonable.
PN4233
And those key performance indicators are set annually under the terms of the agreement?---No, the key performance indicators are established for the life of the agreement.
PN4234
Right?---The targets are set and negotiated annually.
PN4235
Right - the targets that - - -?---For each of those - - -
PN4236
- - - the things that you have to do to demonstrate you've met the key performance indicator?---No, not the things you have to do to demonstrate you've met it, the actual results.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4237
Right?---The outcomes are set annually.
PN4238
Right, okay. And if I could ask you: one presumes that where there are new initiatives which decrease the labour costs and/or increase the productivity of an area of council or council generally, they go towards demonstrating that the key performance indicator has been met?---They contribute to several of the KPIs as a general rule, those sort of outcomes.
PN4239
And can I take you to clause 11 of your agreement, and it's titled The Basis for the Agreement, and it says: "The parties aim to use the enterprise bargaining process to share the benefits gained through" and it provides a list of things - initiatives generally, I think, that might be looked at, is that right?---Yes.
PN4240
And at the third and fourth of those, it's "improved productivity and workforce flexibility"?---Yes.
PN4241
And so the idea is that it's a gain-sharing exercise that occurs under this agreement?---Yes. It's in a most liberal sense gain-sharing, yes.
PN4242
And can I take you to clause 14, Workforce Flexibility?---Yes.
PN4243
And it says here that: "The parties recognise that workforce flexibility is a key ingredient in providing responsive customer service and competitive cost structures"?---That's right.
PN4244
"It's also a means of providing employees with increased opportunities to plan their work and family life"?---Mm.
PN4245
Okay. And it says: "Flexible working arrangements will be negotiated either on an individual or work team basis as appropriate to the employee's work situation"?---Mm.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4246
Is that right?---Mm.
PN4247
And: "The range of it may involve the rescheduling of work hours such that in total, only the base number of hours required under the award is worked each fortnight", is that correct?---Yes.
PN4248
As I understand it, Mr McLoughlin, this is a provision which allows you to enter into a dialogue either with individuals or with a group to look at flexible work arrangements, and particularly in relation to hours of work, is that correct?---That's correct.
PN4249
And it sets out after that the principles which you're supposed to use in order to do this?---To actually design the program, etcetera.
PN4250
Yes. And one of those principles, at 14.2.2, is that people shouldn't unreasonably withhold their agreement?---That's correct.
PN4251
And another principle, at 14.2.3, is that things should be about the principal objective of delivering the service to the customers?---Mm.
PN4252
And you say at 14.4 that: "Without limiting the diversity or scope of the scheme, the range entered into under the scheme may include one or a combination of the following"?---That's correct.
PN4253
And you specifically set out arrangements around flexible working hours and the annualisation of salary?---That's correct.
PN4254
That's been quite detailed about those things?---We believe it's detailed, and we believe it's also very valuable for both the organisation and the staff.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4255
Yes?---As well as our customers in the community.
PN4256
And so this is a tool and, as you've said, a very valuable tool, within your organisation to enter into a dialogue with the employees about how improvements can be made and how flexibilities can be gained?---That's correct.
PN4257
And do you do that?---Sorry?
PN4258
Have you utilised this clause?---Yes, we have.
PN4259
Can you explain the areas where you may have utilised it?---Well, can I look at rec leave in lieu of payment of overtime? Some people choose to work an extra half-hour, whatever, a day, and take a half a day off or a day off or such like at busy times. Annualisation of salary or wage - we have some people who are annualised in terms of their work arrangements so that they actually get benefits for that. For example, I'll just use not in the Federal Award, but the grass cutters, for example. There we have got some people who do that in the nursery who work certain - longer hours some weeks, shorter hours some weeks, based on the need of the organisation and the need of that individual to balance their work and life.
PN4260
Right. And the scheme isn't limited to the things that are identified here. These are examples of the things, is that right?---Say that again, I'm sorry?
PN4261
The overall scheme isn't limited to the things that are identified here. These are examples of the things that could be utilised?---No, it's limited to these clauses as such.
PN4262
Okay; right. And you include things like special projects, where you've got the ability for people to work on special projects and to receive incentive payments?---Yes, we do. We have had that.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4263
Okay. And you include the fact, I think, that in the general conditions governing the scheme at 14.5.1 - - -?---Yes.
PN4264
- - - as I understand it, you're saying that irrespective of the span of hours worked, the starting time shall not be later than 10 am and the finishing time no later than 10 pm. So that's the sort of broad guideline within which people - the flexibilities can be applied, is that right?---That's right.
PN4265
But in doing that you envisage that there may be an extension of the span of hours - - -?---There may.
PN4266
- - - certainly at the end of the day particularly?---There could be.
PN4267
And you mention the time in lieu provisions?---Mm.
PN4268
In relation to time in lieu, what happens with your Federal Award employees in relation to time in lieu? Do they accrue - if they're accruing time in lieu, do they accrue it at time for time basis?---At time for time basis, yes.
PN4269
And do you have a maximum period upon which - over which they can accrue before they have to clear it out?---We don't have a maximum time, we have a maximum amount.
PN4270
Right. And in the old EBA you will notice that the maximum time that anyone can bank is up to 40 hours without director approval and up to 80 hours only with - from 40 to 80 with directors' approval.
PN4271
Okay?---After that we pay overtime.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4272
Right. So you pay them out the amount?---That is right.
PN4273
And the idea is you need to clear it out and not have it hanging around?---Well, yes, because it is an accrual liability, and we don't want people just banking up hours and hours and hours as such, and family life balance, we try and encourage people, actively encourage people to try and keep their hours down.
PN4274
It is not good for the employees, is it, either, to be working - - -?--- I am not sure if it is - some employees might argue with that. But from an organisational point of view we try and keep it to a very clear balance.
PN4275
But in any event, the person either takes their time in lieu, or they get paid it at overtime?---That is right, yes.
PN4276
Is that for all Federal Award employees?---I believe so.
PN4277
Can I take you to Clause 23, job evaluation and reclassification?---Can you just bear with me?
PN4278
Yes?---Yes.
PN4279
It says under 23.1:
PN4280
During the life of the agreement Council is committed to developing and implementing a job classification system.
PN4281
?---Yes.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4282
Purportedly, you say it is fair and equitable, timely and transparent?---Yes.
PN4283
Yes. And you say that it will include the development and implementation of a systematic and defensible job evaluation process?---Yes.
PN4284
Presumably, you don't want one that is not defensible?---That is right.
PN4285
And you say that this will be realised by a review of current job evaluation and reclassification policies?---Yes.
PN4286
And the development of and implement of a best-practice job classification system?---What we seen as the best practice, for us, yes.
PN4287
Yes. What is your - the basis - without going into the absolute detail - what is the basis of your system?---It is based on the LGAQ model. Fundamentally, the person puts up - if they believe their position, or a position if it is new, needs to be classified, it is measured against the award. We do it in a matrix system, in terms of the requirements of appendix A, against the actual position. We measure that and we do it in terms of percentages. And we have got a percentage cut-off in terms of levels, which is 50 per cent, to determine a level, and that is looked at by both the manager and the - if we have got an incumbent by the employee, and has a panel set up to look at that and actually process each one through individually.
PN4288
Okay. And do you work on the basis of a job description?---Yes.
PN4289
Okay. And do you have an annual review process?---Of job descriptions, or - - -
PN4290
No. Annual review with the staff member?---I would have to say yes we do, in principle, but I have to say also it is inconsistently applied with some areas.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4291
Okay, right. Is the purpose of your annual review process that people sit down and talk about their job role with their manager?---That is one part of it. Our purpose, in our case, is to talk about performance and the good things a person has done in the previous 12 months.
PN4292
Yes?---Or preferably, shorter than that. Plus, also, to plan for the future and look at other opportunities and other training needs that they may have, as well as how their role may evolve, and what their aspirations are.
PN4293
And you might set for them objectives for the next 12 months; is that - - -?---Well, we actually encourage them to set their objectives in consultation with us.
PN4294
Right, okay, very good. And do you do that for full-time and for part-time employees?---We do it for full-time, if - and part-timers, yes.
PN4295
Yes?---You are talking temporary and - are you differentiating between temporary and permanent?
PN4296
No, no, I - is it for all full-time and all part-time employees?---Yes.
PN4297
Okay. And do you do it for casual employees?---No, we don't, as a general rule, because, as I said, most casual employees are seasonal as such.
PN4298
You see them as being true casuals?---True casuals.
PN4299
Right. Okay. So a part-time employee, just like a full-time employee, will have - will set with the Council objectives for the next 12 months?---Yes.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4300
And is that what is used in order to determine whether the person gets an annual increment as well?---No, no, it is not. Our annual increments are tied to time, not to performance as such.
PN4301
And why is that?---Historically, it has been tied to time, and our system isn't implemented consistently so that people could actually miss out, as such, for their increment. So at this stage we haven't transferred it across.
PN4302
Right. So people have to do a certain amount of time before they get their annual increment?---Yes.
PN4303
And how much is it?---Equivalent to a full-time - a full-time relationship.
PN4304
And that is regardless of whether or not they have achieved their objectives in the 12 months?---Yes, that is correct.
PN4305
Is that catered for in your enterprise agreement?---The - which part?
PN4306
The provision for annual increments?---No.
PN4307
Okay. So you say you are doing that outside of the enterprise agreement?---We are doing it, I believe - well, I don't know about outside the agreement, but certainly it is not catered for specifically as such. We rely on the award for that.
PN4308
Mr McLoughlin, I put it to you that if a part-time employee has met their objectives for the 12 months, that under the award they should actually receive their annual - their increment on an annual basis. What would you say to that?---No, I don't agree. I believe that that is pro rata'd on - based on time.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4309
So you say that the award is based on time worked scenario?---It is time worked based on a full-time employment - a clause at the beginning of the award which talks about the full-time arrangement.
PN4310
We might get the award, I think, and have a look at that. Mr McLoughlin, can you take me to the part of the award where it stipulates that it is related to full-time hours?---I would need a little time to go through it to identify the area.
PN4311
That is fine, that is fine.
PN4312
THE COMMISSIONER: Well, we might have a 10-minute break.
PN4313
MR WATSON: Well, can I - I have a real fear about this, because I have raised it before, and that is I am going to object on the basis we are really getting into the question of award interpretation, and I have objected to that before. It is all very interesting, what Mr McLoughlin's view of the award might be, but at the end of the day it is up to the Commission to interpret, in this exercise, what the award is. And it is not - the Commission is not going to be assisted by what Mr McLoughlin says. Hopefully, you will be assisted by what my learned friend say in the submissions and what I say in the submissions.
PN4314
MS HEAP: Commissioner, Mr McLoughlin has said that he believes it is contained in the award. I would like him to have the opportunity to tell us where he thinks that is. So at least we know what the basis of his view - what his view is based on.
PN4315
THE COMMISSIONER: The specific provision in the award that he says allows the increment to be based on hours.
PN4316
MS HEAP: Yes.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4317
THE COMMISSIONER: I am happy for him to be asked that question, and to try and find which clause he wants to rely on in the award, but I do agree - - -
PN4318
MS HEAP: I am not going to take him to an argument about it. I just want to know what he bases it on.
PN4319
MR WATSON: Okay, well, I withdraw the objection, then, on the basis - - -
PN4320
THE COMMISSIONER: Very well, thank you. So we will have a 10-minute break, and Mr McLoughlin can find the provision during the break.
SHORT ADJOURNMENT [3.35pm]
RESUMED [3.47pm]
PN4321
THE COMMISSIONER: Ms Heap?
PN4322
MS HEAP: Commissioner.
PN4323
Mr McLoughlin has been on the spot for the - whilst we've all been having a break. Did you find the provision that you were referring to, Mr McLoughlin?---No, I didn't. The only reference I can get to quickly is 6.4.3, but I have to say that I'd have to go through this again so I apologise. I can't find what I'm looking for.
PN4324
Mr McLoughlin, the - your process of classification evaluation for employees - - -?---I'm just a little deaf, I have to tell you.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4325
Oh, sorry. Sorry. Your process of classification for employees?---Right.
PN4326
Does that involve the ability for the employee to make a request for review of their classification?---It does. It certainly does.
PN4327
And presumedly they go through a process of sending a formal request?---Yes, there are forms that enable them to fill it out and put it through a procedure.
PN4328
And do those forms spell out the things that they'd need to include or demonstrate?---They do.
PN4329
And what sort of things are they required to demonstrate?---They're required to actually identify what are the duties of the jobs they're now doing, what percentage of the job they're actually doing such as is it 10 per cent, 5 per cent, etcetera, what level of accountabilities they may have in the job delegations, etcetera.
PN4330
Okay?---They're some examples.
PN4331
And they are required to - are they required to sort of suggest about how they believe that fits into the higher band?---No, they don't have to do that. We actually form a panel of three people to look at that and make recommendation.
PN4332
Right. And presumedly the criteria in general terms that you use is a criteria that says, well, the factors that they've outlined suggest that they are in either the higher level or they're not in the higher level against the award; is that correct?---Yes. Yes, that's correct and that's where appendix A becomes one of the problems in respect of this matter.
PN4333
The clarity or otherwise you're suggesting, Mr McLoughlin?---It requires revisiting.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4334
I think there's absolute unanimous agreement about that around - from what I can understand local government in Queensland?---I would suggest that that is required before we look at some other things that hang off it such as reclass.
PN4335
Well, that's your view about the priority. Mr McLoughlin, people can appeal the decision that's made by the panel?---That's correct.
PN4336
And where do they appeal to?---There's a grievance resolution procedure they can appeal to in our organisation.
PN4337
Through the enterprise agreement?---It's through the enterprise agreement, yes, there's a grievance procedure there.
PN4338
Okay. And, ultimately, they can have the matter determined by an outside party if that's - - -?---That's correct, they can go further.
PN4339
Okay. Can I ask if the witness can look at the ASUs application in this matter? Mr McLoughlin, this is what the ASU is seeking in terms of varying the award and can I take you to Clause 8 of that variation?---Clause?
PN4340
8?---Sorry. You're talking about salary increments?
PN4341
Classification and reclassification of salary increments and progression?---Say it again, sorry?
PN4342
Classification/reclassification of salary increments and progression.
PN4343
THE COMMISSIONER: I think it should be on page 11 which is down - the numbering is in the bottom right-hand corner.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4344
THE WITNESS: No, sorry, maybe it's on this one. I've got page 11 on this one.
PN4345
MS HEAP: And that is headed, Classification and Reclassification?---That's correct, salary increments and progression.
PN4346
Okay. Mr McLoughlin, at 8.1 it says:
PN4347
Positions will be classified in accordance with the level definitions provided for in Schedule A of this award.
PN4348
And that's as you understand the requirement at your organisation as well?---That's correct.
PN4349
Right. And at 8.2 it says:
PN4350
To ensure that employees are currently classified each employer will at least every two years providing in writing to each employee the following -
PN4351
and it sets out the information that should be provided to employees?---Yes.
PN4352
And it states that the information provided must accurately reflect the role being performed. Do you see that?---Yes.
PN4353
Mr McLoughlin, is that the information that you already provide to employees on an annual basis or through your own process?---Not on an annual basis we don't, but we're moving to an annual basis but we don't do it on an annual basis at this stage.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4354
Would you do it at least every two years?---In general terms probably but we do it when there's vacated positions or there's changing roles, etcetera, as well, so it can be more frequently than that, but, generally speaking, not more frequently than two years at this stage.
PN4355
And you suggest that you're moving towards an annual basis?---We are considering it at this stage, yes.
PN4356
Right?---But it does take up a lot of resources and we're also particularly concerned about Schedule A in respect of that.
PN4357
Right. But you suggested that where you do do annual reviews a person sits down or a manager sits down with employees and goes through this information anyway?---That's generally the information they go through.
PN4358
Yes. Okay. You see at 8.3 it says:
PN4359
Any officer or party to this award may make a written request for a position reclassification on an annual basis or at the time of the staff development review.
PN4360
Can you see that?---Yes.
PN4361
Continuing:
PN4362
And a written request for review can also be lodged with the council at any time where a position has been restructured and/or the duties or responsibilities have changed.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4363
Do you see that?---I see that.
PN4364
Is that the process that you also use in your council?---The first part, no. The second part any person can lodge a written request at any time if the duties or whatever have changed as such.
PN4365
Okay. So they can do it at any time?---So if there's a significant change the process is that the person who is affected may believe there's a significant change and if they do they have got the option to put up for a request, yes.
PN4366
And if they thought the significant change had taken place they could also do that at the annual review or during the staff development process?---There would be nothing stopping them doing it at that time.
PN4367
Okay. And it says further on:
PN4368
Should an officer be successful in his position being reclassified the effective date of any increase in salary shall be six weeks from the lodgement of the application. Should be the day of the conclusion of the council's review process or six weeks from the lodgement of their application whichever is the lesser.
PN4369
If you go through the process and you find that an employee has been incorrectly banded or should be reviewed to the higher level what's the operative date in your process?---The operative date is the lodgement of all documents by all parties.
PN4370
And would you see that as being - - -?---There may be an exception to that, but that's the general rule.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4371
And would you see that as being within a six-week period?---Yes, we try and manage most of these within that period of time.
PN4372
And at 8.4 the application says:
PN4373
The grounds for which a request for a review may be made are having regard to the classification definitions in schedule A, identifiable changes in the nature and work value of the duties performed, increases in responsibilities, changes in the skills, knowledge and experience required to undertake the duties, such that the duties of a position as required to be performed by the individual, when assessed against the classification definitions place the position in a higher band.
PN4374
Can you see that?---Yes.
PN4375
Mr McLoughlin, is that generally what you understand to be the criteria that's applied under the award?---Yes, generally it is, but I stress, one of the problems we've got at this stage is schedule A with that. This is not - the problem isn't at this stage. The problem is prior to this stage with schedule A, but yes, generally yes.
PN4376
And in your process is it accepted that the person who's making a request for an appeal can be represented or assisted by an employee representative or a union?---Yes.
PN4377
So you'd have no difficulty with that 8.5 which suggests that?---Just let me refresh my memory. None at all.
PN4378
Can I take you back to your enterprise agreement, Mr McLoughlin, and can I take you to clause 24, Other Issues?---Yes.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4379
And presumably this is a list of other matters that were raised in the process of consulting about the enterprise agreement?---That's correct.
PN4380
And it says that:
PN4381
Council will consider and take appropriate action during the life of this agreement regarding issues raised during the consultation process, namely -
PN4382
and it includes a number of dot points there?---Yes.
PN4383
Continuing:
PN4384
Above-award payments for project work.
PN4385
?---Yes.
PN4386
Continuing:
PN4387
Staff employment categories, casuals, temporary and permanent and contract positions.
PN4388
Can you advise whether action has been taken by council in relation to those matters?---All of those matters are reviewed and action has been taken and reported on at our enterprise bargaining implementation unit on a three-monthly basis.
PN4389
Okay. And can you indicate what has been the work that you've been doing about staff employment categories?---Staff employment categories, that's where we review every employment category to make sure they fitted with our definitions. I explained that before in terms of genuine casuals versus - - -
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4390
That's the process you were talking about?---Yes.
PN4391
And what has occurred in relation to contract positions?---That was predominantly about contracting out and actually in our EBA, you may recall from reading it, that there is a process whereby our staff get opportunity to contract for positions - for work before we actually contract it out.
PN4392
Right?---So anything that comes up as a major project, we monitor as an EBIU, enterprise bargaining implementation unit, to make sure there is an opportunity for our staff to put their hand up.
PN4393
Right, okay. And it says over the page that:
PN4394
Action taken in relation to these issues shall complement, enhance, and not derogate from any entitlement or benefits granted by virtue of this or previous agreements.
PN4395
?---Correct.
PN4396
So the aim for you is to look at these things and come up with new options but people are not supposed to be losing entitlements in the process?---That's correct.
PN4397
Mr McLoughlin, have you entered into any discussions about - in terms of utilising the clauses of your enterprise agreement in relation to flexibilities for the library?---Without checking I can't answer that yes or not. I'd have to check. We have flexibility arrangements. I can't comment on the library without actually going back to the record.
PN4398
Okay. Can you - we talked about casuals with Mr Watson, and you said, as I understand it - and you reconfirmed a minute ago that you've been reviewing casual performance so that they are true casuals?---Yes.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4399
Do you know how many casual Federal Award employees you have on council?---I can tell you how many we've got in total, but they're not all employed at one time. They're on a casual list and that's 103. That's right across our organisation. How many are divided up into Federal and State, I don't know off the top of my head.
PN4400
Mr Clough, from the LGAQ, has filed a witness statement in relation to these proceedings, and on it he indicates there's 69 employees, Federal Award employees, at Toowoomba. Would that be how you would see it?---Look, I honestly can't remember, but our break-up is generally 45, 55, in those ranges, so it's possible that that is the number.
PN4401
45 Federal Award employees?---Yes.
PN4402
And 55 per cent aren't?---Yes, as a general principle, but I don't know that figure of 63 for sure. Sorry, I can't confirm or deny that.
PN4403
And I think you were saying the majority of the Federal Award employees who were casual are in the library. Is that correct?---That's correct.
PN4404
And are the majority of those people women?---I haven't checked, to be perfectly honest. We have a large number of males working in our library, but I can't honestly tell you.
PN4405
Right, okay, fair enough. You were saying that the casual conversion process had resulted in you not having long-serving casuals at the council. Is that correct?---Not having long-serving - there were some people whose pattern of work and their sporadic nature were still casuals on our casual list, but those who were obviously permanent part-time or permanent full-time, were converted to that.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4406
If I said to you that in your planning and services development assessment there was a casual who has been employed since January 1992 would you be surprised?---In where, sorry, DA?
PN4407
Planning services development assessment?---I would be a bit surprised, but if you could give me the name I might be able to help you.
PN4408
Building services certification - - -?---Certification unit.
PN4409
Yes, from 1 December 2003?---I'd have to check for you. I'm not sure about that, sorry.
PN4410
Engineering services from October 1995?---I'd have some difficulty with that, but I don't know of anyone 1995 in engineering services. There are some people in engineering services who are cleaners who have been around for a long time, but their pattern of work is definitely casual at this stage. And we did have one or two people who actually argued that they wanted to stay casual rather than be converted and we honoured that.
PN4411
Presumably they were thinking about the loadings?---That's exactly right. And one of those - - -
PN4412
And if they started working - because that loading is 23 per cent, isn't it?---Yes, and one of those or two of those might have been in engineering services. Cleaning comes under engineering services, so that could be correct.
PN4413
THE COMMISSIONER: Ms Heap, can I just be a bit clearer about what the question is. Is the question you're putting that there is someone in one of these divisions who started in 1995 and that they're a casual and that they're still a casual and what I don't understand is, have they worked systematically and routinely at council for the whole of the period from 1995 or were they employed for three months in 1995 and then a week in 1996. That's what I'm not sure on.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4414
MS HEAP: Commissioner, what I don't - I was hoping that Mr McLoughlin would be able to say, "Oh, yes, that person, but he works on a regular pattern of work." We don't have that information.
PN4415
THE COMMISSIONER: You've got your information from Mr Clough's material, is that right?
PN4416
MS HEAP: And from communications that we've had at the local level.
PN4417
THE COMMISSIONER: Right.
PN4418
MS HEAP: And certainly the communications that we've had is that these people have been regular employees for a period of time.
PN4419
THE COMMISSIONER: Right.
PN4420
MS HEAP: And I suppose the point - - -
PN4421
THE COMMISSIONER: I don't mind - well, it's clearer for the witness if the question is put that you have an employee who started in 1995 and has worked on a regular and systematic basis because you can certainly have a casual who commenced working for you in 1995 and is still working for you today, or has worked for you recently, but would really be a casual because they might have only worked a couple of days a year in the interim.
PN4422
MS HEAP: Yes, I understand that.
PN4423
Well, taking that hint from the Commissioner, Mr McLoughlin, if I was to say to you that you have people employed in Community Environmental Health from as early as December 1996 on a regular and systematic basis as casuals what would you say to that?---No, I don't believe they would be regular and systematic.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4424
If I was to say to you that you had employees in the library employed from as early as 1997 as casuals on a regular and systematic basis what would you say to that?---I'd be surprised. I'd have to look at their record, but I'd be surprised.
PN4425
Similarly in Corporate Services Records Administration since 1993?---Not to my knowledge.
PN4426
These are not ringing any bells with you?---Not at all, I'm sorry.
PN4427
Okay. In Marketing since January 2000 on a regular and systematic basis?---Not ringing any bells either, I'm sorry.
PN4428
Okay. All I can say then is we haven't been able to confirm - - - ?---I can't confirm that, no.
PN4429
Mr McLoughlin, in relation to temporary employees at the Council, do you know how many employees you have employed - Federal Award employees on a temporary basis?---I should have brought down the staff database, shouldn't I? No, I can't give you an answer but it would be in the vicinity as a guess, and I must say this would be a guesstimate, around 70.
PN4430
Right. And Federal Award employees?---Once again it could be the 45/55 split.
PN4431
In what circumstances do you use temporary employment for Federal Award employees?---Okay. As a general rule, if you can bear with me for a moment, we ask for only temporaries to be employed for these sorts of reasons. Just - if you can bear with me just for a moment. But basically replacement of maternity leave, replacement for extended sick leave if somebody is off for a long term of sickness for an operation or such like, replacement for long term long service leave if somebody is off on extended long service leave. some
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
time if there's a project work - a particular project that's only got discrete funding for a period of time, but we have got a criteria and I think there's nine categories that have got - one of those have got to be ticked to justify temporary as opposed to permanent employment.
PN4432
And do you have them - is there a period of time associated with a temporary arrangement?---It depends on the nature of the arrangement. For example, maternity leave is often up to 12 months, as you're probably familiar and we extend that usually for another 12 months.
PN4433
Yes?---The family friendly policy kicks in at that stage. Some project work with definitive money it may be three months, it may be two years, it may be three years. We've got a Council decision recently about some people in our DA area that are three years. Council - - -
PN4434
Drug and alcohol, is that?---No, no, it would be nice - sometimes you probably would think so how busy they are; development assessment, building approvals, etcetera.
PN4435
Sorry. I deal with the social and community services industry as well so that's always what DA is referred to?---Yes, okay. No, development assessment, so it's building approval area, but we've got a building boom going on so we've got some people on temporary there. But it does depend basically on that sort of thing. Holiday relief can be a month when Fred Bloggs goes away and Mary Bloggs replaces Fred Bloggs, those sorts of things.
PN4436
Can I ask you to have a look at the ASUs application again. And at clause 17.25?---Yes.
PN4437
17.25?---Yes.
PN4438
This is our proposal in relation to fixed term employment and you can there's a list of categories A, B, C or D?---Yes.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4439
Is that generally the categories that fall into those categories that you've spoken to about temporary employment at Toowoomba?---They have got similar principles, yes.
PN4440
And do you utilise project employment at Toowoomba?---Do we?
PN4441
Separate from temporary or do you call them temporary?---No, we call them temporary.
PN4442
Right. Do you have fixed term contracts at Toowoomba?---Yes.
PN4443
And who do they apply to?---Predominantly the CEOs and the executive and management level.
PN4444
Do they go below that level?---Only for people in situations - in maybe specific projects or specific Council grants.
PN4445
But you would be employing them as a temporary?---Temporary as a general rule.
PN4446
Right. Your fixed term contract arrangements, are they for employees that are above - apart from the temporary ones are they for employees that are above level 8 in the award?---That's correct.
PN4447
And do those contracts purport to - they provide a term, say, three year or five year contract?---As a general rule five years.
PN4448
Right. And do those contracts at the end of that term is it the case that the Council can decide not to re-engage the person?---That is possible.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4449
Right. Do those contracts allow for the person's employment to be terminated within that term?---Only by mutual arrangement or if there is a problem in terms of performance or such like.
PN4450
Is there any other reason that the Council can terminate a contract?---I'd have to read the contracts again, but I believe that they are the two major reasons; by mutual agreement or if there's a performance or some other disciplinary matter.
PN4451
Right. The Council can't sort of pay them out a notice period of six months or something like that and terminate - - - ?---Yes, there is a provision in there for that to be done as well.
PN4452
Right. And they can terminate it on that basis for any reason?---There has to be a reason.
PN4453
And they have to pay six months or give six months?---I think it's six months in the contract.
PN4454
And can the employee terminate the contract at any time?---Yes. Yes, so they are really outer limit contracts. If an employee wishes to resign and move on they can give four weeks notice.
PN4455
And - - - ?---I'm pretty sure it's four weeks notice.
PN4456
Can I ask for the witness to be shown exhibit ASU6. Mr McLoughlin, is this an advertisement for two positions, one plumbing inspector and one technical officer placed in the Courier Mail on behalf of Toowoomba City Council?---That's correct.
PN4457
And can you see at the top of that in relation to the plumbing inspector it says "three year contract"?---That's correct.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4458
And in respect of the technical officer it says "three year contract"?---That's correct.
PN4459
You've just indicated to us that you don't have people on fixed term contract below the Senior Executive Service?---Yes. The definition of contracts in our place is any employment relationship we enter into, it;s not just the fixed term for senior people. These people would be employed on temporary but their arrangement is that they may be looked at market loading and that's because the Council decision was to employ some people in these areas for three years during the boom. I mentioned that just a moment ago.
PN4460
So these are what you consider to be temporary positions?---Yes. Yes.
PN4461
For three years?---Yes. For that project to carry through this building cycle.
PN4462
Mr McLoughlin, the evidence that has been given in relation to these proceedings by Mr Smith is that he made inquiries around this issue, particularly in relation to the plumbing inspector role, and was advised that that was an ongoing - a position that an ongoing employee had filled subject to their resignation and then this was subsequently advertised as a contract position. What do you say to that?---Can you repeat that, please?
PN4463
Mr Smith has given evidence in these proceedings that he made inquiries when he saw this advertisement?---Yes, right.
PN4464
And that he was advised that in relation to the plumbing inspector position that an ongoing employee had held that position and had resigned and that it was now being replaced on three year contract. What do say to that?---He certainly didn't speak to me.
PN4465
I'm not saying he did speak to you?---No, well, I can't comment on what he's saying there because he didn't speak to me about this. I - no, that's not correct, I don't believe.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4466
Do you know that that's not the case?---I don't believe that's the case.
PN4467
Do you know that that's not the case, Mr McLoughlin?---I'd have to check the recruitment part of it, but I don't believe it's the case.
PN4468
Mr McLoughlin, you've made statements - in your statement you talk about - in your first statement at paragraph five, you talk about the loss of the 10 percent loading for part time employees?---Say that again, if you don't mind, please.
PN4469
Sorry, your statement dated 5 November 2004, you talk about the 10 percent loading for part time employees?---Yes.
PN4470
At paragraph five, do you see that?---I am just trying to find it, if you can just give me a moment. What section was it, what number paragraph?
PN4471
Paragraph five, on the first page of that first statement?---Paragraph five. I've got it under paragraph seven, the ten percent loadings.
PN4472
Can we check what statement the witness has got in front of him.
PN4473
MR WATSON: I think I can explain what is happening here. Or I can I think in relation to Mr McLoughlin. I think when we first sought instructions, there was like one statement given. However, the statement touched upon a number of issues, some of which went to - under the directions, those which were supportive of the contentions of the LGAQ, others that went to supporting opposition to what the ASU were putting. That's why we have got two statements. To address the directions which were issued by the Commission, we put in one statement which deals with one, that is, in support of the LGAQ's contentions and in the second statement in support of the opposition to the ASU. Now, I think, Mr McLoughlin may just be looking at his one composite statement that we have prised apart. Perhaps Mr McLoughlin might just confirm that's right?---I believe so, sorry, just having trouble following, that's all.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4474
MS HEAP: I suspect the problem is this, that the witness did identify the documents at the beginning of the proceedings - - -
PN4475
THE COMMISSIONER: No, no, he identified the bench copy which is - - -
PN4476
MR WATSON: Yes, that's right.
PN4477
MS HEAP: Which is the ones that are filed.
PN4478
THE COMMISSIONER: Yes. I hope so.
PN4479
MS HEAP: Otherwise how would you have got them, Commissioner.
PN4480
MR WATSON: Maybe what we should do is, could we just hand a copy of the one that the Commissioner's got.
PN4481
THE COMMISSIONER: I think that would be a good idea.
PN4482
MS HEAP: Thank you, Mr McLoughlin. It does help if we are all working on the same document. You talk about the 10 percent loading for part time employees here?---Mm.
PN4483
And in your argument as I understand it or the point that you are making is that it cuts across the employment of part time employees is that right?---Cuts across?
PN4484
Well, it stops you from employing part time employees?---No, no. It doesn't stop us. It's certainly a consideration and it's also the feedback we've got from the staff on it, is that it's causing some difficulties in terms of equity arguments.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4485
Between the full time and the part time staff?---Yes.
PN4486
But you have also indicated through the course of these proceedings that you have been going through a process of converting people who are not true casuals on to permanent part time status?---That';s correct.
PN4487
So it hasn't been stopping you from doing that process?---I don't believe that the two things necessarily need to rely on each other. The two separate processes.
PN4488
Right, but it hasn't stopped you from converting people, the 10 percent loading?---No.
PN4489
Do you accept, Mr McLoughlin, that to take away the 10 percent loading from people who have currently got it will effectively mean a loss of pay for them?---Well, it's got to it's ten percent.
PN4490
And do you have a view about the equity considerations of that?---Yes, I do.
PN4491
And what's that?---I believe it's iniquitous.
PN4492
To take it away from them?---No, I believe continuing to pay it is iniquitous.
PN4493
So what do you say to employees that were earning something one week and will be earning something less next week, working the same hours?---I believe that we should be looking at grandfathering.
PN4494
Right. So current employees maintain the entitlement but no new and part time employees?---That's one of the options we should be looking at.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4495
Mr McLoughlin, following on from this equity considerations, is it your view that part time and full time employees should not be worse off than one another in terms of their terms and conditions of employment?---Or better off, yes.
PN4496
Worse or better off, yes?---Yes.
PN4497
So for example, if a full time employee's ordinary span of hours is considered to be either 7.6 per day or 36 and a quarter per week, would you also accept that a part time employee's ordinary span of hours should be considered in the same way?---Could you rephrase that for me, please.
PN4498
I am looking at the issue of ordinary time earnings?---Right.
PN4499
And full time employees under the award receive overtime if they work longer than a certain number of hours per day or longer than 356 and a quarter hours per week. That's the award provision. I accept that your's is different?---Yes, okay, now I understand what you are saying there.
PN4500
Would you accept the same principle should apply for part time employees?---No. My view in terms of equity is that overtime of flexibility should kick in when it's a full time equivalent.
PN4501
Sorry, so you think that a part time employee could be asked to work for example at 8 o'clock at night outside of the ordinary span of hours and not - - -?---No, no, that's not what I am saying. What I am saying is - what you are asking about as I understand it was about the kick in of overtime or whatever. Now my argument would be that when people get to 36 and a quarter in this case, hours per week, after that that's when it kicks in irrespective. Part timers maybe asked to work extra hours and if they refuse so be it but if they get up to 36 and they want to work extra hours or are asked to work extra hours and it's mutually arranged when overtime kicks in.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4502
Yes, I understand that';s what you are saying. The point that I'm asking you about is this. If a full time employee has a span of ordinary hours?---Yes.
PN4503
Which is either - they either work within these hours within a day?---Six to six say for example.
PN4504
Yes, and if they work outside of those hours, they would get overtime?---Well, they might get overtime working inside of those hours as well.
PN4505
I am going to step you through that process just so that we can make it clear. The point that I am trying to raise with you is, if full time employees at certain points either on a day or on a week are able to accumulate overtime payments, should not a part time employee be able to do the same on the same basis?---Once they hit 36 and a quarter, yes.
PN4506
What about the fact that for full time employees it is also designed that if they work more than a certain number of hours per day they get overtime?---No, well, our arrangement under our EBA doesn't necessarily accommodate that.
PN4507
But you would - do you accept the principle that the two shouldn't be treated differently?---No, I don't accept that principle. I think that everyone should be treated the same.
PN4508
Everyone should be treated the same?---Yes, 36 and a quarter is the fundamental unit before overtime kicks in.
PN4509
In your arrangements?---No, you asked me for my view. That's my view.
PN4510
Yes, but no, in your arrangements, the principle point is this, that I am asking you to comment on. If the arrangement's 36 and a quarter for full time employees?---Right.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4511
Then the arrangement should be 36 and a quarter for part time employees, is that right?---That's correct, yes.
PN4512
If the arrangement is 36¼ or a certain number per day for full-time employees, ought not the same arrangement apply for part-time employees?---As a principle, in terms of the 36¼, yes.
PN4513
Yes. So in principle they should be treated the same in that way?---Yes, that's right. That's what I'm saying, in terms of 36¼ as a base unit.
PN4514
Mr McLoughlin, as I understand what you said in relation to casuals and casual conversion, the difference between your position and the ASUs position is that you think casual conversion should occur at 12 months and the ASU thinks it should occur at six months; is that what you understand?---That's the fundamental difference, yes.
PN4515
That's the difference between us?---Yes.
PN4516
Right. When you engage a person, do you engage them as a casual? If you engage - when you engage - I'll go back a step. From what you said, you said you do an assessment at 12 months as to whether or not they are true casuals or not?---That's correct.
PN4517
That's right. But you've originally engaged them as a casual on the basis that you expect that they're true casuals, they work intermittently and on an irregular cycle?---Of that group of what we believe are true casuals - - -
PN4518
Yes?--- - - - as such, yes.
PN4519
So it's important to define that this is what true casuals are?---Yes.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4520
These people who work this way?---Yes.
PN4521
Unexpected and intermittent workers?---That's correct.
PN4522
And the principle would be that you genuinely agreed to employ them on that basis. But when you looked back after 12 months, that didn't pan out that way; is that - - -?---That's correct, because we have a review at each 12 months.
PN4523
Yes?---But it is possible that a position could change its status during that 12 months as well.
PN4524
Oh, yes. And so what you thought, you put them on as a casual, you expected that they were going to be a casual?---Casual. And - - -
PN4525
And it didn't turn out like that when you reviewed it?---Yes. There are occasions, you know, isolated occasions, where that occurs as well.
PN4526
Okay. Well, I think that - from what I can say, Mr McLoughlin, that where I - the only difference is really that you think it should happen at 12 months and we think it should happen at six months?---Yes. And I've given you my rationale for that previously.
PN4527
And it's really an operational issue for you, how frequently you want to do it?---Operational and gives you a better perspective of what you're actually looking at to make that decision.
PN4528
If you had a scenario which said that you did it at six months and then you reviewed it again at 12 months, would that be of assistance to you?---It's very resource-intensive. When we've got a situation if there is major changes we can review it anyway, so it's pretty resource-intensive.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4529
And do you understand in the ASUs casual conversion process that a person would be able to elect to remain as a casual?---I've read that.
PN4530
Yes?---And we have had one of two - as I said, when we reviewed this in the last year or so there were one or two, if I recall correctly, who actually elected because of the leave loading and - because of the loaded-up wage to stay as casuals.
PN4531
Right. I take the witness to exhibit ASU9.
PN4532
THE WITNESS: Thank you.
PN4533
MS HEAP: Mr McLoughlin, these are a bundle of letters that were tendered in evidence in relation to the employment of Mr Tony Castles?---Yes.
PN4534
And you deal with this matter at - I'm a bit weary of saying this now - but at clause 4 of your second statement? Do you have the second statement, as opposed to the combined statement, there?---I've got that many papers here now, I'm sorry.
PN4535
I think you almost have some sympathy for me at this stage, possibly?---I'm sure I'm empathic to your situation as well. Yes, I've got that.
PN4536
And you understand that there's been an ongoing issue between the ASU and the organisation about this process, but that the employment of Mr Castles has been sorted out in terms of his permanent status now?---That's right.
PN4537
And I understand what you were saying was that he was originally employed for a temporary contract?---For a specific duty, yes.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4538
Which was marking?---Yes. Can I put a bit of context around this, if I may? And I agree that this is an anomaly. We had a new system - and I'm not a technocrat, so please, if you are, you'll pick up my failings rather quickly. We had a new system coming in in GIS, Geographical Information Surveying, which involved a piece of software called Cadastral. To do that and make use of that system, we needed all of our streets named and numbered. And originally in the mid-90s, that was what was required as a first step. At that stage, the system was very primitive, nobody knew what was happening, and from what I can gather, going back in history, it was a debate whether it was a State government or a local government responsibility. The Cadastral system came in; it basically takes a picture of all of the townships - - -
PN4539
Yes?--- - - - and via satellite and we can actually zoom in on your backyard, fundamentally.
PN4540
That worries me, Mr Castles?---So we can see into your backyard.
PN4541
Oh, dear?---I can get into your backyard through this system. Now, what's happened over time with Tony's situation is that the Council was not clear whether that was going to continue as our responsibility, whether it was going to be transferred out of our responsibility. It was not clear how sophisticated or useful the system was and it was not clear how much data and time it would actually take to complete this project. The project grew, the software became another software upgrade iteration, as I understand. As a result of that, it became a most useful tool, which we didn't - apparently didn't know in the '90s how useful it was. But it's an extremely useful tool now to check on things like fence boundaries, swimming pools - - -
PN4542
Cables?---Yes, all those sorts of things. As a result of that, we've moved in recent times to confirm with Council that this is a position that will be ongoing, consequently that Tony's been appointed permanently to this position. But there has been a number of nuances and iterations and twigging of this over a number of years.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4543
Right?---It appears it's our responsibility now, incidentally. Local government.
PN4544
Local government?---Mm.
PN4545
As I understand, is everything, according to both federal and State governments?---Yes, that could be true.
PN4546
But they're not giving you any more resources with which to do things with?---That would be a fair comment as well.
PN4547
Do most major councils have this geographic - this GIS system?---Either directly or indirectly, as I understand. I can't speak for most major councils, but some of it actually sits in their economic development section, which isn't necessarily always part of a council, and it is funded by the State Development Department. So by defacto, yes, as a general rule.
PN4548
You say in your statement that he was employed as a project - specific project level 1 under the Queensland Local Government Officers Award/State. Is that an error in your statement?---Yes, I believe so.
PN4549
Is it meant to be "Federal"?---Yes.
PN4550
And is that an error that continues through?---Yes.
PN4551
We should read "Federal" whenever you - - -?---Yes, it is, sorry. I apologise.
PN4552
Okay. No, no, that's fine. It was a point that we should have cleared up. Mr Castles, the correspondence that you've got in front of you - oh, McLoughlin, sorry?---That's all right.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4553
The correspondence that you've got in front of you is correspondence from the Council, including an internal memorandum in Council about this - Mr Castles' employment. And it appears that the reference each time from the Council is to an extension of the temporary employment arrangement; is that your understanding?---Say it again, sorry, I missed you.
PN4554
It appears that each time the reference is to an extension of - - -?---Yes.
PN4555
- - - the temporary employment arrangement?---Yes.
PN4556
Right. And is it the case that Mr Castles was ongoingly employed throughout this time?---You could look at it like that. You could look - - -
PN4557
I mean, he didn't go off and do something else or - - -?---No, no. He - - -
PN4558
- - - have a gap in his - - -?--- - - - certainly did not.
PN4559
He was - I'm not asking you to accept legally; I understand the issue there. But he was employed continuously with the Council and with nobody else and he didn't have breaks of service during this time?---I don't believe so.
PN4560
Okay. And do you say that that's an appropriate use of temporary employment arrangements?---Under our definition today, I would suggest not. I think projects like this need to be scoped better before we start.
PN4561
And in your statement where you say at paragraph 5 that:
PN4562
The matter was lodged in the Australian Industrial Relations Commission, however at the time of lodgement, negotiations were already under way.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4563
Did those negotiations include involvement of the ASU?---No, I'd actually talked to Tony myself about the issues, and give him an undertaking that I would sort this out.
PN4564
Because it had been a very long time, hadn't it?---It has, I'm not arguing that.
PN4565
Mr McLoughlin, I'm somewhat embarrassed to say this, but I can't remember whether we took - whether stand by was incorporated in your agreement, or not. Stand by allowance for Federal Award employees?---In our EBA?
PN4566
Yes?---I'll just have to check as well. Do you want me to check quickly?
PN4567
I think we might both do it?---It was one of the - there's a section here about allowances.
PN4568
I don't think it is in your - - -?---No, I don't believe so. There was a - in those dot points you referred to earlier, there was an allowance review done at one stage, I think from memory. Stand by allowance, under 24. It was one of the issues we were looking at as - - -
PN4569
Okay?---Yes.
PN4570
And so can you tell me what applies for stand by for Federal Award employees at the council?---Say it again, sorry?
PN4571
What applies in terms of stand by for Federal Award employees at the council?---Generally speaking we've got a - I can't quote the dollars, but we've also got arrangements where we trade off things like commuter use for vehicles for stand by allowance.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4572
Do you pay - - -?---Some people are annualised - annualised hours. And they get use of a car for that sort of privilege. Privilege of a car for that sort of stand by.
PN4573
Would most - you say commuter use of the car?---Yes. And some people get private use.
PN4574
Right. So different arrangements for different people?---Different arrangements for different people based on the nuances of the particular job, and the likelihood etcetera of all sorts of things about that particular job.
PN4575
Would it be the case that most employees who are on call - call out would need a car in order to travel to perform their functions?---Yes.
PN4576
Right. And do you pay the - do you know if you pay the award rate for stand by, or pay above the award rate in terms of the monetary amount?---I'm not aware that we don't pay the award rate. I believe we pay the award rate.
PN4577
Right. But you have a range of other benefits that you - - -?---That's right.
PN4578
- - - provide for employees?---That's right. Because we look at some of these folks' as packages in terms of how we can accommodate them. And a large number of them have the private use arrangement.
PN4579
Right. There's a difference isn't there, between State Award employees and - - -?---Yes, I believe so.
PN4580
- - -Federal Award employees. And do you have both State and Federal employees on stand by?---Yes, we do.
**** KENNETH JAMES McLOUGHLIN XXN MS HEAP
PN4581
And is it an issue that State Award employees get much more than the Federal Award employees?---It was raised about three years ago about the differential in the pay of person A sitting next to person B going out on a call out. But what they were looking at was just the money, because the other - one of the people actually got the car benefit and the other person didn't. So yes, it has been raised, two or three years ago.
PN4582
Okay. And the stand by as you understand it, is for people to be available for 24 hours 7 days a week, if they're on the stand by roster?---Well, the roster may be 24 hours 7 days a week, but we certainly don't have people on 24 hour 7 day a week rosters. We try and share it around between different people.
PN4583
You don't have it continuously?---That's right.
PN4584
Yes, no. And do you know how many employees - Federal Award employees you have on stand by?---I have no idea off the top of my head, I'm sorry.
PN4585
I have no further questions.
PN4586
THE COMMISSIONER: Very well, thank you. Ms King?
PN4587
MS KING: I have no further questions, Commissioner.
PN4588
PN4589
MR WATSON: Mr McLoughlin, you recall that my learned friend took you to the issue of the 10 per cent loading for part-time employees. And I read you this, that the - are you familiar with the provision being asserted by the LGAQ as the alternative proposal to the one being put forward by the ASU?---I'd have to read it again, to refresh my mind.
**** KENNETH JAMES McLOUGHLIN RXN MR WATSON
PN4590
All right. Just to make sure that we're clear on the right, that I'll read it. It says:
PN4591
A part-time officer employed under the provisions of this clause must be paid at an ordinary hourly rate calculated by dividing the annual award rate for the classification in which the officer is employed, by 52. Dividing the result by 36-and-a-quarter.
PN4592
And then it goes on to say:
PN4593
Provided that officers in receipt of a 10 per cent loading for working part-time hours, shall have this allowance reduced by future award-based salary increases.
PN4594
Now, what do you say about that in terms of current employees that might be receiving the 10 per cent loading, if this provision was to come in?---If we do a grandfather arrangement such as that, as opposed to a salary maintenance arrangement, I believe that it would make a lot more sense and be a lot more palatable to the great number of employees. It would also enable us to promote more part-time and become even more flexible in our working arrangements.
PN4595
Yes. I think this may be giving rise to confusion. When you spoke about grandfathering in terms of the cross-examination?---Yes.
PN4596
I think the thought may have been that you meant that those person who are receiving the 10 per cent got frozen there, and they would forever receive the 10 per cent?---No. What I'm saying with grandfathering is that it's taken up with future increases, as opposed to salary maintenance of the 10 per cent forever.
PN4597
Absorbed?---It's absorbed over time.
**** KENNETH JAMES McLOUGHLIN RXN MR WATSON
PN4598
Yes, okay. Now, can you go - and it's convenient if you leave that document with you because it's got it in there. But can you go to the ASU application. And the ASU application is in fact the middle column in that?---Mm.
PN4599
And go to 17.24. My learned friend took you to 17.25. Under the heading, "Fixed term appointment"?---17 point?
PN4600
17.24 - it's a heading - - -?---Full time employment?
PN4601
No, it's "D, fixed term employment". 17.24 - 17.24?---17.24 - sorry.
PN4602
MS HEAP: It makes a difference.
PN4603
MR WATSON: That's okay, that's okay?---It makes a difference. I'm having trouble with these documents and numbers, obviously. 17.24, okay.
PN4604
Have you got that?---Yes.
PN4605
Just read it to yourself, that's the middle column, okay.
PN4606
Do you have such a contract at Toowoomba?---In terms of our temporary contracts, we don't. We actually have letters with "up to" dates, and the reason for that is, for example, if a lady is on maternity leave and she wishes to come back earlier, it may be that we need to move that person out and put that lady back in her substantive position. So we do have "up to" dates. In terms of our contracts for senior people, we do have fixed term with starting and finishing dates.
**** KENNETH JAMES McLOUGHLIN RXN MR WATSON
PN4607
But do you have a contract that has a starting and finishing date but during the term of that contract the contract is not terminable by the Toowoomba City Council except for cause based on serious or wilful misconduct. In other words, that's the only basis on which the council can terminate the contract?---Are you talking about the senior contracts now? I've just got - - -
PN4608
Any contract? Do you have any such contract, that during the life of that contract, the only basis upon which the Toowoomba City Council can terminate it, is for serious - sorry, serious or wilful misconduct?---No, because sometimes we actually have some - if there's a project and the money is not continued or suchlike, so no, we do have some exceptions to that.
PN4609
So the answer is no, you don't have such a contract?---That's right.
PN4610
All right. I have no further questions. May the witness be excused.
PN4611
PN4612
MR WATSON: One more witness, may it please the Commission, and that's Mr Clough, who I seek to call.
PN4613
MR WATSON: Your full name is Sidney, spelt S-i-d-n-e-y, Raymond Clough?---That's correct.
PN4614
And are you employed by the Local Government Association of Queensland Incorporated as an industrial information officer?---That is correct.
PN4615
And your office is at 25 Evelyn Street, Newstead, Brisbane, in this State?---That's correct.
PN4616
And for the purpose of these proceedings have you made a statement - can you have a look at this document please with the attachments?---Yes.
PN4617
Mr Clough, that statement is dated 3 December and bears your signature?---Yes.
PN4618
I tender that statement.
PN4619
THE COMMISSIONER: I'll mark it as exhibit LGAQ17.
PN4620
MR WATSON: Mr Clough, I wish to ask you a couple of questions?---Yes.
PN4621
The first page after your statement is a schedule from inquiries made by the LGAQ setting up the number of employees including the number of casuals. Is that right?---That's right.
**** SIDNEY RAYMOND CLOUGH XN MR WATSON
PN4622
And that's across the entire local governments in Queensland?---Yes, that represents the figures for the 124 councils, leaving out Brisbane City, which is not a party to this award.
PN4623
Of course. And the next document is a schedule which obviously deals with councils by name. Is that right?---With the numbers of casual - - -
PN4624
Yes?---Yes.
PN4625
And is that the total number of casuals - sorry, if you go to the end there, it says 1575. Does that correspond with the 1575 which is in the 2004 column on the page about which I've just asked you questions?---That's correct.
PN4626
And then the following pages, can you tell the Commission what they are?---The following pages contain information in relation to certain councils. In terms of the question of casuals I sought certain information from these particular councils and endeavoured to gauge just what the usage of casuals might be and the areas of involvement.
PN4627
Right. Those councils appear to be Logan City Council?---That's correct.
PN4628
Maroochy - is that Shire or City Council?---Maroochy Shire Council.
PN4629
Shire Council, thank you. Then Redcliffe City Council?---Yes.
PN4630
Townsville City Council?---That's correct.
PN4631
And that's all-up, that's it?---Yes, the first - or Logan, Maroochy and Townsville are directed to the higher end of the figure scale, and Redcliffe was pitched down lower in the numbers game in that the casuals reported there or listed there were 20.
**** SIDNEY RAYMOND CLOUGH XN MR WATSON
PN4632
Right?---Whereas the other three were at the top end of the scale.
PN4633
Right. So do these schedules give an indication of the areas that you might find casuals employed in at those councils?---Yes, it certainly gave degrees of emphasis as to the location and usage of casuals.
PN4634
All right. Now, with Townsville, there is a reference to a casual classification of employment called student planner?---Yes.
PN4635
Were inquiries made by the Local Government Association of Queensland to council directed to getting more information about those student planners?---Yes, I have become aware of a document which outlines some information in relation to the student planners.
PN4636
And is that an email dated 13 December 2004 from Kim Argent to Roger Beer?---That is correct.
PN4637
And you got a copy of the document?---I have no, yes.
PN4638
Have a look at this one, and is that the same as the document to which you've just referred?---That is the identical document.
PN4639
I tender that document.
PN4640
THE COMMISSIONER: Ms Heap.
**** SIDNEY RAYMOND CLOUGH XN MR WATSON
PN4641
MS HEAP: Commissioner, I'm not going to object to the tendering of this document, but I do point out that we haven't received a copy of this in advance and been able to make any inquiries in relation to it, and that we haven't got anybody here able to ask further information about this. And because it wasn't presented with the original information we haven't been able to make any inquiries in relation to it and we do feel that we're at somewhat of a disadvantage in relation to this. But to the extent that it's to clarify the title of student planner, we're happy to accept that, but we're not happy to accept these things as facts necessarily in this case.
PN4642
THE COMMISSIONER: I mean, all that can be is a copy of an email that's been received, because that's all it is.
PN4643
MR WATSON: At the end of the day it's going to be a question of weight, may it please the Commission, and I accept that.
PN4644
THE COMMISSIONER: I'll mark it as exhibit LGAQ18.
EXHIBIT #LGAQ18 EMAIL FROM KIM ARGENT TO ROGER BEER DATED 13/12/2004
PN4645
MR WATSON: Now, Mr Clough, in relation to those councils, that is, Maroochy, Redcliffe, Townsville and Logan, have you made inquiries as to the hours worked by the casuals that are identified in those schedules?---In the limited time available, I made inquiries along those lines and have received certain information which I've studies.
PN4646
In terms of those casuals, in the individual councils, what can you say about the majority of those in terms of the hours that they work? Are they less - - -
**** SIDNEY RAYMOND CLOUGH XN MR WATSON
PN4647
THE COMMISSIONER: What can he say? He's been told about that.
PN4648
MR WATSON: Yes.
PN4649
THE COMMISSIONER: Because he has no direct knowledge.
PN4650
MR WATSON: No, no. He's been told, yes. I said, made inquiries. Yes, you've been told about this. What is the - from your inquiries, what have you been told about the incidence of the working of hours by the majority of casuals, in terms of the number of hours they work?---Well, this information shows hours worked from the minimum number up to the extent of full-time. And there's a varying pattern as between the particular functions of the particular councils.
PN4651
Right. But in terms of the majority of casuals, does it differ in each council?---It can differ depending on programs. You have an incidence of casuals in libraries, where there can be a certain hours commitment based on those operations.
PN4652
All right. Can I ask this question, in each council are most of the casuals that are identified in those schedules, working less that 36-and-a-quarter hours per week?---Yes, I would say on the information.
PN4653
Thank you. I have no further questions.
PN4654
PN4655
MS HEAP: Thank you. Mr Clough, were you given that information in written form?---No, I made particular telephonic inquiries to ascertain that particular information.
**** SIDNEY RAYMOND CLOUGH XXN MS HEAP
PN4656
And only to those - - -?---Only to those four councils.
PN4657
Right. You indicate in your statement that in preparation for this case you have contacted a number of councils in order to get further information, is that right?---That is the four - that's the four - - -
PN4658
Those are the four that you contacted?---That's the four that I've contacted in relation to the incidence or the usage of casuals.
PN4659
Right. And why did you choose those four?---Just random choice. The exercise to go to the extent of detail would take many many days. So on that basis I looked at the top end of the scale of numbers, and down at a lower pitch. And that's where Redcliffe came in at the number 20.
PN4660
You didn't think to seek the information from those organisations in which witness evidence was filed in these proceedings?---No, my selection was based on what I've said, and that's the extent to which I had time to do that.
PN4661
So your view of the information that's been provided to you is only limited to a very narrow range of councils?---No, I wouldn't - I'm not saying that. In my general field of providing advice to councils, I get many questions fielded in relation to casuals. And I would be of the view that what's shown - or the evidence - or the material we've got there is pretty much representative of the industry profile.
PN4662
But you don't have any information that you can give us about that?---No. As I've said, my exercise in the limited time was to get some gauge as to the hours that might be worked by casuals.
PN4663
And the information that you provided for us, particularly in relation to those listed four councils, doesn't give us anything to work from does it in terms of whether or not these are true casuals or not?---I would say that they - the information does relate to true casuals.
**** SIDNEY RAYMOND CLOUGH XXN MS HEAP
PN4664
Well, did you give these councils a definition of casual and ask them to provide you the information in relation to that definition?---I explained to them the nature of the exercise, and indicated that I was addressing the pure and simple casual strand of employment.
PN4665
How did you define casual for them, Mr Clough?---Well, casuals come as defined in the award.
PN4666
So, any person who they include as - who they decide under the award they employ as casual, they could have included in this?---Beg your pardon?
PN4667
Any person who they under the award define as casual, they could include in this?---Well, I think it's quite clear. The award talks about full-time, part-time and casual employment in specific terms. And the exercise was directed to the casual side.
PN4668
THE COMMISSIONER: What was that? Included in the survey that met out? That - - -?---The survey, Commissioner - - -
PN4669
I haven't finished the question?---Sorry.
PN4670
The information that went out said, "Casuals as per the award" - - -?---The - - -
PN4671
Or, could I as a - receiving the survey, respond as to a casual as defined in the particular EBA at my council?---The information requested was in the nature of full-time, permanent and casual employees as per the award.
PN4672
Okay.
**** SIDNEY RAYMOND CLOUGH XXN MS HEAP
PN4673
MS HEAP: So you asked them to - so on that basis, they would have included any person engaged and paid as a casual who is employed on an hourly basis?---Yes.
PN4674
Right. But this information, the started that you've given us, doesn't give us a sense of how often they are employed, for how many hours per week, and whether it has been continuous during that time, or whether it's been one engagement per year?---Well, the purpose of the subsequent exercise I undertook was to have some awareness and some gauge of the extent to which casuals might be employed. Initially, it was to establish where casuals are employed, and in what categories. And as I've explained, the exercise was extended in terms of seeking the additional information from those particular councils. And I think as I've said before, that is pretty much representative of the - what would be the industry picture.
PN4675
Yes. The page - the table that you have produced on the second page of the document attached to your statement, starts at:
PN4676
Council, casual totals, Aramac.
PN4677
?---Yes.
PN4678
Has a number of gaps next to individual councils. Does that mean they don't have any casuals?---That is the information that was provided to us in terms of our survey.
PN4679
And the document that is attached for Logan, I just want to check with the Commission that you've got a document that is - on that document is legible. Because in the document that we were given, Commissioner, there were some words cut off the bottom of that document. And I ask for a copy from the LGAQ. You see that on the bottom of that page it says:
**** SIDNEY RAYMOND CLOUGH XXN MS HEAP
PN4680
The majority of casuals employed year round, not for seasonal demand. The reason why council uses casuals, is because it provides for greater flexibility, particularly in libraries where we are open...
PN4681
And there are words cut off. Are they cut off on your - - -
PN4682
THE COMMISSIONER: Yes, they are.
PN4683
MS HEAP: Is there a copy that can be provided to the. And the copy that's been given to me by the LGAQ says this:
PN4684
The reason why council uses casuals is because it provides for greater flexibility, particularly in libraries where we are open two nights a week as well as Sundays. As a result, libraries is the greater use of casual staff. While casuals in DHE customer service, are employed to meet peak workloads.
PN4685
I presume that the Commission will be given a copy of that.
PN4686
Mr Clough, doesn't the statement contained by Logan on their own document cut against what you've just said, in that they are saying that the majority of their casuals are employed year-round, not for seasonal demand?---No. The - my further inquiries show that in particular areas of the Council's operations that there are varying hours and certainly less than full-time.
PN4687
Well, I say to you that Logan City Council itself on its own documents says the majority of casuals are employed year-round, not for seasonal demand; do you accept that?---Well, that may be the case. But the fact is that the hours - - -
PN4688
Do you accept that, Mr - - -?--- - - - are variable.
**** SIDNEY RAYMOND CLOUGH XXN MS HEAP
PN4689
Do you accept that, Mr Clough, that that's what they say?---Well, they've stated that but - - -
PN4690
Yes?--- - - - my further - - -
PN4691
And do you also accept that they say that the average of three years, two months service for casuals?---I haven't averaged the length of services shown in that - - -
PN4692
Do you accept that the documents - that they say that in their own document?---Yes.
PN4693
Mr Clough, we've done some work on the figures that you've provided, and just like to step you through what our understanding of the correlation of this data actually is from what you've provided. In terms of your first table, would it be fair to say that that identifies that the number of casuals employed under the award has fluctuated between around 1400 and 1500 over the past four years?---Yes, the figures show that totals of 1430, 2001, with subsequent figures of 1357, 1446 and 1575 for the respective years of 2002 to 2004.
PN4694
And it says about between 11 and 12 per cent of the work force is casual?---Mm.
PN4695
And women outnumber men by a ratio of 4 to 1; i.e. there's 80 per cent women employed in a casual category?---I haven't analysed that to that extent, but the figures show a higher number of females to males.
PN4696
The second table that you have there, do you accept that the breakdown of this is that the distribution is that there are 22 casuals with - 22 councils with no casuals?---Yes, on my assessment of that there's 102 councils with casuals and 22 without.
**** SIDNEY RAYMOND CLOUGH XXN MS HEAP
PN4697
86 councils with between one and 24 casuals?---I haven't analysed that information to that detail.
PN4698
Five councils with between 25 and 50 casuals?---Well, again, I haven't analysed that detail.
PN4699
Nine councils with between 50 and 100?---I haven't analysed - haven't - - -
PN4700
And two councils with over 100 casuals?---I haven't analysed that.
PN4701
Is this - these are casuals under the federal award; is that correct?---Yes.
PN4702
Right. Mr Clough, the figures that you provide for Logan - - -?---Mm?
PN4703
- - - demonstrate that the overwhelming number of casuals at Logan - in fact, 59 of those are employed in libraries?---That's correct.
PN4704
And 70 per cent of those casuals have more than one year's service?---I haven't analysed that data.
PN4705
50 per cent have more than two years service?---I haven't analysed that.
PN4706
In relation to Maroochy, 77 casuals?---Yes.
PN4707
Although it shows 90, actually, on the table that you've provided in table 2?---Yes, I think what one has to understand is the survey was done at the end of - in May.
**** SIDNEY RAYMOND CLOUGH XXN MS HEAP
PN4708
All right. So there could be - - -?---And in the interim, we've sought this information. And there are variables but that can be - by reason the passage of time or what other factors.
PN4709
Of the 77, 46 are either library assistants or librarians?---That's right.
PN4710
Three-quarters have been employed for more than one year?---I haven't analysed that detail.
PN4711
There is the inclusion of some other categories of employment, including seven positions listed as "seasonal"?---I beg your pardon?
PN4712
There - inclusion of some other categories of employment other than casual, seven listed as "seasonal"?---Which are those are you referring to, sorry?
PN4713
Maroochy?---Yes.
PN4714
Seven people are actually listed as "seasonal"?---I see, yes. "Seasonal", yes, I see the "seasonal" identification, yes.
PN4715
Seven are listed as "sessional"?---Seven listed as "sessional", yes.
PN4716
Six as "project"?---Yes, there are project-linked identifications.
PN4717
And is it your understanding that they class these people as casuals or as seasonal or as project employees?---It's the broad picture given to me in terms of casual employees.
**** SIDNEY RAYMOND CLOUGH XXN MS HEAP
PN4718
Right. So they use those terms interchangeably sometimes?---I beg your pardon?
PN4719
They use those terms interchangeably sometimes?---Well, I asked for specific information as to casuals and I'm saying that this is the information provided.
PN4720
In relation to Redcliffe, there's 32 positions which are casual?---Yes.
PN4721
And nine of those are in the library?---That's correct.
PN4722
And a majority of these are people who are employed on a project basis; is that right? 13-week project?---Which group are you referring to, sorry?
PN4723
The CJP Program people?---Yes, yes.
PN4724
What's the CJP Program?---I should know it, but I just can't - - -
PN4725
If I said it was the Community Justice Program, would you know that?---I'm not sure about that.
PN4726
In relation to Townsville, your list shows 291 casuals; is that right?---I thought the figure was 285.
PN4727
I'm not sure we'll spit over - - -?---I beg yours?
PN4728
I'm not sure we'll have a dispute about that, the difference between 291 and 285?---Mm.
**** SIDNEY RAYMOND CLOUGH XXN MS HEAP
PN4729
Whereas your original list says 129?---Yes, well, I come back to the point I made before: the time gap in between and the information provided is as of May, they were the figures given to us, the 129. As of this check, the figure is 285 or 291, whichever.
PN4730
So your list at the start hasn't been corrected to take account of these - your list in table 2?---The earlier information statement shows the figures out of the survey. This information represents the very recent check as to the extent of casual employment areas and time-frames.
PN4731
So there's significantly more casuals employed now than there were in the survey?---Well, that appears so. But I haven't had the opportunity to explore why that, you know, occurs.
PN4732
THE COMMISSIONER: Mr Clough, you might be able to help me. Let's take this Townsville list?---Yes.
PN4733
This is the list of people or positions - I don't understand what the list is. Is this the people who would be rung up in the event that, for instance, if there was something going on in the performing arts centre. Do you see what I mean? Like, there's positions in here - or is it a list of - were all these people employed on a certain date?---They are the listed casual employees as at the point of my inquiry. As to the extent of their usage, what has bearing on that is the areas of employment. And I think your comment was relevant that we have got performing arts and activities of that nature. It can be a varying picture depending on the programs at particular points in the year.
PN4734
Yes, but what I want to know is what is the list. Is the list - if Townsville City Council were having a thing at the performing arts centre or the - whatever it is I just said, I just can't remember. Is this a list of people who they would ring up to see if they were available to come in and work in the front of house or in the bar or wherever?---Yes.
**** SIDNEY RAYMOND CLOUGH XXN MS HEAP
PN4735
And some may, and some may not, depending on whether they're available?---Yes, well, that could be the case. These people can be involved on an irregular basis, depending on programs.
PN4736
MS HEAP: Perhaps I can assist also to the extent that we're guessing at this list, but there is a covering document forwarded by Peter Cosby, as I understand it, from the Townsville - who is Peter Cosby, sorry, Mr Clough?---Well, in the description of the various areas - - -
PN4737
No, who is Peter Cosby? Sorry, he's the employer relations co-ordinator?---That's right.
PN4738
It's got it down the bottom, sorry. He says here, as I understand it:
PN4739
The attached file contains details of the casuals who are employed at TCC. The reason that these employees are employed as casuals is because of the flexibility that is required in respect of their engagement or non-engagement, as the case may be.
PN4740
THE COMMISSIONER: But see, that's the problem. I don't understand when a person is employed as a casual, when a casual's employment terminates at the end of every day or at the end of every - and I don't know these people who - I just don't understand it, to tell you the truth. I don't understand what it means.
PN4741
MS HEAP: Well, Commissioner, more than that, you go on, and he says:
PN4742
You will notice that there are a significant number of casuals who have been employed for extended periods of time. Some of these casuals are also employed on a regular and systematic basis and are effectively long-term casuals.
**** SIDNEY RAYMOND CLOUGH XXN MS HEAP
PN4743
THE COMMISSIONER: Mr Clough, can you help? I mean, is this just a list of people who they might ring up?---This is a list of casual employees, and some may have, I guess, regular and systematic employment as stated. Others would be engaged or contacted when particular programs were on the go, and I think child care talks about being an occasional care centre so that there could be a varying mix amongst this of people who might be employed on a regular and systematic basis. Other people would be, in my words, as and when.
PN4744
Yes, so some of them might not have worked for council for six months or more?---Well, there could be gaps. I don't know the extent to which - how those - the length of those gaps or - - -
PN4745
MS HEAP: And some of them could have been employed continuously?---Yes.
PN4746
I understand that Mr Cosby is also saying:
PN4747
Certainly Townsville has a proposal on the table as part of our present EBA negotiations, seeking flexibility in the distribution of part-time hours. If this is agreed to by the unions then it is our intent to convert a significant number of these casuals to permanent part-time.
PN4748
I would suggest to you, Mr Clough, that that suggests that a significant number of people on that list are actually employed on a regular basis?---Well, that may be so. That issue in my book would take some significant review. That's a broad statement. Whether - to what extent that materialised, in my view, depends on a whole range of factors.
PN4749
I've got no more questions for this witness, Commissioner.
PN4750
THE COMMISSIONER: Thank you. Ms King?
**** SIDNEY RAYMOND CLOUGH XXN MS HEAP
PN4751
MS KING: I have no further questions, Commissioner.
PN4752
PN4753
MR WATSON: Mr Clough, was the purpose of the schedules that my learned friend has taken you to - the Redcliffe, Maroochy, Townsville - to show the incidence of where casual employment may be found in those councils rather than any particular form of engagement as to hours, weeks, whatever?---Mm.
PN4754
When you say "mm" you mean yes?---Yes, sorry.
PN4755
Yes. And that's what was the purpose of it?---Yes.
PN4756
And in terms of the first page, the schedule which is shown there, has that been captured from data which is provided on an annual basis by local governments to the Local Government Association Queensland?---Yes, the survey has been conducted over recent years, and as that document shows, 2001 is the starting point we've used. That information comes from material supplied by the respective councils and collated accordingly.
PN4757
Right. And is that at a certain point in time each year, from at least 2001?---Yes, generally speaking the survey takes place in the April, May period of the year.
PN4758
Right, okay. Whereas the schedules which - or the documents which relate to Maroochy, Redcliffe, Townsville and Logan, is information provided when?---As of the previous two weeks from today.
**** SIDNEY RAYMOND CLOUGH RXN MR WATSON
PN4759
So some time beginning around 1 December?---Yes, it's been certainly in the time frame of this month.
PN4760
And generated specifically because you made inquiries?---Yes, I made inquiries to broaden the exercise in a certain way to look at what might be the incidence of usage, and also the extent to which hours might be worked.
PN4761
Yes, I have no further questions.
PN4762
PN4763
MR WATSON: That completes the evidence led by the LGAQ.
PN4764
THE COMMISSIONER: Very well, thank you. That leaves us with Professor Paddon.
PN4765
MS HEAP: Commissioner, I've had a conversation with Mr Watson about the progress of this matter from here, and I have what I understand is an agreed proposal to put to you. I'm sure Mr Watson will leap to his feet if I misrepresent it. And that is that it's our preference, subject to what you have to say, for us to give you oral submissions at a future date to be set, and Mr Watson has kindly agreed that if we were to do that, then on that day if we had Mr Paddon available for cross-examination, he would do that at that time, and that's what we would be proposing as the way forward.
PN4766
THE COMMISSIONER: Mr Watson?
PN4767
MR WATSON: Yes, that's the agreement that's been reached.
PN4768
THE COMMISSIONER: Well, that's certainly acceptable to me. So does that leave us with the only task remaining to pick the said date?
PN4769
MS HEAP: And, Commissioner, I'm about to tell you that I'm on annual leave for the entire period of January and so looking forward to it that I would be incredibly disappointed if we had to do anything in January.
PN4770
THE COMMISSIONER: You're the applicant, Ms Heap, so we will do our best to fit in with whatever it is - - -
PN4771
MS HEAP: And I will be a very happy person when I come back.
PN4772
THE COMMISSIONER: What sort of time frame are you looking at - some time in mid to late February. Is that what you're suggesting?
PN4773
MS HEAP: Mid-February certainly would be - - -
PN4774
THE COMMISSIONER: Mid-February. Mr Watson, you have no objection?
PN4775
MR WATSON: Yes, that's fine.
PN4776
MS HEAP: Commissioner, could I suggest that we have proposed dates, subject to my confirmation of Mr Paddon's availability, and I understand from him that he will be - we would definitely try everything to make sure he's available.
PN4777
THE COMMISSIONER: Can you firm that up before Christmas, do you think?
PN4778
MS HEAP: Oh, yes, yes.
PN4779
THE COMMISSIONER: Well, can we look at, at this stage, the two weeks commencing 14 February, and if you can let us know as soon as you possibly can, Ms Heap, and as I say, certainly this side of Christmas, and in the event that any issue arises with the date when the professor is available, if there's a conflict with Mr Watson's diary we will sort it out over the phone.
PN4780
MR WATSON: I'll give my card to the associate and then she can phone me and we can certainly, I'm sure, reach a convenient date.
PN4781
THE COMMISSIONER: Yes. So perhaps you have - - -
PN4782
MS HEAP: I'll liaise with Mr Watson.
PN4783
THE COMMISSIONER: - - - let me say that at this stage I'm available all of that fortnight, except the 14th.
PN4784
MS HEAP: Valentine's Day, Commissioner.
PN4785
THE COMMISSIONER: That's right. So certainly from the 15th. So if you can firm that up with Mr Watson and let us know and Ms King know, that would be appreciated. We will then send out a notice of listing, once we receive that advice. Is there anything else we need do?
PN4786
MR WATSON: No. We just assume that the transcript will come to us in due course.
PN4787
THE COMMISSIONER: I believe that's the case. If there's nothing else we'll adjourn to a date that will be fixed in due course, and let me say that as much as I've enjoyed your company, I hope we don't see each other before Christmas, and I wish you all a safe and enjoyable Christmas. I adjourn the Commission.
PN4788
MS HEAP: And to you, Commissioner.
ADJOURNED INDEFINITELY [5.26pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
IAN CHARLES FLINT, SWORN PN3215
EXAMINATION-IN-CHIEF BY MR WATSON PN3215
EXHIBIT #LGAQ10 STATEMENT OF MR IAN FLINT DATED 05/11/2004 PN3221
CROSS-EXAMINATION BY MS HEAP PN3229
EXHIBIT #ASU12 BOONAH SHIRE COUNCIL CURRENT CERTIFIED AGREEMENT PN3233
RE-EXAMINATION BY MR WATSON PN3332
WITNESS WITHDREW PN3337
NICOLAS FRANCIS WILLIAM FAIGNIEZ, SWORN PN3338
EXAMINATION-IN-CHIEF BY MR WATSON PN3338
EXHIBIT #LGAQ11 STATEMENT OF MR N.F.W. FAIGNIEZ PN3346
CROSS-EXAMINATION BY MS HEAP PN3349
EXHIBIT #ASU13 COPY OF THE EACHAM SHIRE COUNCIL'S CERTIFIED AGREEMENT 1997 PN3353
EXHIBIT #ASU14 DOCUMENT RELATING TO ENTERPRISE BARGAINING AT JOHNSTONE SHIRE COUNCIL PN3531
WITNESS WITHDREW PN3564
NOEL JEFFREY HOELSCHER, SWORN PN3567
EXAMINATION-IN-CHIEF BY MR WATSON PN3567
EXHIBIT #LGAQ12 STATEMENT N.J. HOELSCHER 4/11/2004 PN3573
EXHIBIT #LGAQ13 STATEMENT N.J. HOELSCHER 1/12/2004 PN3576
CROSS-EXAMINATION BY MS HEAP PN3587
EXHIBIT #ASU15 REDLAND SHIRE COUNCIL CERTIFIED AGREEMENT PN3591
RE-EXAMINATION BY MR WATSON PN3788
WITNESS WITHDREW PN3806
GRAHAM DALE KENNEDY, SWORN PN3806
EXAMINATION-IN-CHIEF BY MR WATSON PN3806
EXHIBIT #LGAQ14 STATEMENT OF G.D. KENNEDY DATED 03/12/2004 PN3813
CROSS-EXAMINATION BY MS HEAP PN3815
EXHIBIT #ASU16 IPSWICH CITY COUNCIL CERTIFIED AGREEMENT 2002 PN3820
EXHIBIT #ASU17 DOCUMENT ENTITLED YOUNG TALENT TIME PN4090
RE-EXAMINATION BY MR WATSON PN4150
WITNESS WITHDREW PN4174
KENNETH JAMES McLOUGHLIN, SWORN PN4175
EXAMINATION-IN-CHIEF BY MR WATSON PN4175
EXHIBIT #LGAQ15 STATEMENT K.J. McLOUGHLIN DATED 5/11/2004 PN4181
EXHIBIT #LGAQ16 STATEMENT K.J. McLOUGHLIN UNDATED PN4185
CROSS-EXAMINATION BY MS HEAP PN4222
EXHIBIT #ASU18 TOOWOOMBA CITY COUNCIL NUMBER 4 EXTENDED CERTIFIED AGREEMENT 2003 PN4227
RE-EXAMINATION BY MR WATSON PN4589
WITNESS WITHDREW PN4612
SIDNEY RAYMOND CLOUGH, SWORN PN4613
EXAMINATION-IN-CHIEF BY MR WATSON PN4613
EXHIBIT #LGAQ17 STATEMENT OF S.R. CLOUGH DATED 03/12/2004 PN4620
EXHIBIT #LGAQ18 EMAIL FROM KIM ARGENT TO ROGER BEER DATED 13/12/2004 PN4645
CROSS-EXAMINATION BY MS HEAP PN4655
RE-EXAMINATION BY MR WATSON PN4753
WITNESS WITHDREW PN4763
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