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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 12800-1
COMMISSIONER GRAINGER
C2005/2376
CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION
AND
DEPARTMENT OF HUMAN SERVICES
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/2376)
MELBOURNE
10.08AM, MONDAY, 12 SEPTEMBER 2005
Continued from 17/5/2005
Hearing continuing
PN289
MR J BACKWELL: I'm an Officer with the Community and Public Sector Union.
PN290
MR J D'ABACO: I continue to seek leave to appear for the Department of Human Services.
PN291
THE COMMISSIONER: I'm happy to continue you in your appearance, Mr D'Abaco. If I could just run through the program. I note we're listed for five days this week and if we need five days, well, we need five days. If we don't need five days, then I can assure you, I've got plenty of other things that I need to do this week. So I ask you not to string it out unnecessarily. You've all put in submissions, but I understand there are a lot of complicated issues involved in this case, so they need to be dealt with thoroughly, but I just ask that you not stretch it out if it doesn't need to be stretched out.
PN292
What I'm proposing is that I'll adjourn at ten to one each day and reconvene at 2 or a few minutes past 2. You will note that I've got cases listed, I think, at 4 today, tomorrow and possibly Wednesday as well, so I need to adjourn only a few minutes before 4 on each of those days. I guess we can re-assess the program late on Wednesday to see how things are looking at that stage. Mr Backwell?
PN293
MR D'ABACO: Actually following on from what you just said in terms of timing. My friend and I have had some discussions in relation to that and in light of a number of objections which I've raised with my friend in relation to the statement of Ms Robertson and concession by the application to a number of those objections, we're hopeful of hopefully disposing of the matter in three days, worst case scenario going into a fourth, so it may well assist the Commission in relation to its agenda for the remainder of the week.
PN294
THE COMMISSIONER: Well, if we finish early, it will only mean that I'm starting working on a decision early as well as finishing off some other decisions.
PN295
MR D'ABACO: In relation to the issue of the witness statement dated 8 October which has been filed on behalf of the applicant, Ms Robertson, and her supplementary statement, my friend and I have had some discussions and we're in a position to inform the Commission of agreement, by way of agreement there are a number of paragraphs or extracts thereof of the two statements which, as I understand it, of course Mr Backwell can confirm this, are to be struck out and will not form part of the evidence before the Commission.
PN296
There are a number of them, sir, so perhaps it may be useful if you could obtain or could extract from your materials a copy of Ms Robertson's original witness stated 8 October and if I could take you through those parts which are deleted and if I get it wrong my friend will rise to his feet and correct me.
PN297
THE COMMISSIONER: Yes, I've got that.
PN298
MR D'ABACO: Can I take you, sir, to paragraph 17 of Ms Robertson's statement dated 8 October.
PN299
THE COMMISSIONER: Mr Backwell, you're happy with this course of action, are you?
PN300
MR BACKWELL: Yes, Commissioner. If I could just get it right, that we will first of all be moving to the ones that we've agreed that we're going to, and then we will move to the ones that we still have contest about.
PN301
THE COMMISSIONER: That's okay, yes, fine.
PN302
MR D'ABACO: Paragraph 17 on page 4 of the statement, Commissioner, the third last line, the sentence commencing at the very end of that, "I could not help but feel," if that sentence can be deleted.
PN303
THE COMMISSIONER: Yes.
PN304
MR D'ABACO: Paragraph 21, the bottom of the page, the final sentence, "It was as if she already knew," if that can be deleted.
PN305
THE COMMISSIONER: Yes.
PN306
MR D'ABACO: Paragraphs 32 and 33, both those paragraphs are to be deleted in their entirety.
PN307
THE COMMISSIONER: 32 and 33 in entirety, yes.
PN308
MR D'ABACO: Can I also indicate, sir, that obviously out of an abundance of caution, the witness statements which have been filed on behalf of the respondent do deal with some of these matters which will now not be relied upon and we will in due course indicate what aspects of those statements will no longer be relied upon, of course.
PN309
THE COMMISSIONER: Good, thank you.
PN310
MR D'ABACO: If I can take you then next, please, sir, to paragraph 42. The third last line or sentence commencing, "However, it was quite apparent," the remaining part of that, that can be deleted.
PN311
THE COMMISSIONER: Yes, yes.
PN312
MR D'ABACO: Paragraph 45, the fourth last line, the sentence commencing, "It was quite apparent." The entirety of that sentence, ie the remaining part of the paragraph, can be deleted.
PN313
THE COMMISSIONER: Yes.
PN314
MR D'ABACO: Paragraph 51, on the third line, retain the words "not true", but thereafter the words, "and not supported by", delete those words and the remaining part of the paragraph. So the paragraph - - -
PN315
THE COMMISSIONER: So delete from "not true", delete from after "not true"?
PN316
MR D'ABACO: Correct. There'll be a full stop inserted after the word true and that's the end of the paragraph, the remaining parts deleted.
PN317
THE COMMISSIONER: Yes.
PN318
MR D'ABACO: Paragraph 70, the sentence, "In addition to this", which concludes on the third line with the words "out of the branch" that will be deleted.
PN319
THE COMMISSIONER: Yes.
PN320
MR D'ABACO: There are remaining parts of that paragraph, sir, which refer to that statement and obviously they would have to be afforded much less weight in circumstances where that allegation is now being withdrawn by the applicant.
PN321
THE COMMISSIONER: Well, that will be a matter for submission in due course, yes.
PN322
MR D'ABACO: Paragraph 89, delete in its entirety.
PN323
THE COMMISSIONER: Right, yes.
PN324
MR D'ABACO: Paragraph 90, the first line, delete where the words "The belated attempt", so delete from the word commencing, "The", and on the third line the words "For the role indicates" up to and including the word "indicates".
PN325
THE COMMISSIONER: So delete from the sentence starting with "belated attempt" down to?
PN326
MR D'ABACO: "Indicates" and I understand that that paragraph will be amended by the applicant and insert "I believe that the process", so then evidence in relation to her belief. That's obviously a matter for the applicant.
PN327
THE COMMISSIONER: All right, yes.
PN328
MR D'ABACO: If I can then take you, sir, to the applicant's supplementary witness statement dated 12 August.
PN329
THE COMMISSIONER: Yes.
PN330
MR D'ABACO: Paragraph 12, the bottom of page 2, that paragraph to be deleted. The words on the first line commencing, "To read such".
PN331
THE COMMISSIONER: So what am I deleting? I'm leaving in, "I am truly shocked"?
PN332
MR D'ABACO: "I am truly shocked," then from there deleting from the word "to" up to and including on the next line "career and professional future".
PN333
THE COMMISSIONER: All right. So there's some other words going to be - - -
PN334
MR D'ABACO: I think that's a matter for the applicant, obviously, but the comments in relation to the off-hand and contrived comments, that I understand are now withdrawn.
PN335
THE COMMISSIONER: Right.
PN336
MR D'ABACO: Paragraph 14, the second last line before the indented part, "However as DHS", that part of the paragraph including the indented part is to be all deleted.
PN337
THE COMMISSIONER: So from, "However" to the end of that?
PN338
MR D'ABACO: Correct.
PN339
THE COMMISSIONER: Yes.
PN340
MR D'ABACO: Paragraph 15, delete in its entirety.
PN341
THE COMMISSIONER: Yes.
PN342
MR D'ABACO: Paragraph 16 delete in its entirety.
PN343
THE COMMISSIONER: Yes.
PN344
MR D'ABACO: Paragraph 18, the first two lines up to and including the word on the second line, "Responsibility".
PN345
THE COMMISSIONER: From "If" to "responsibility"?
PN346
MR D'ABACO: Correct.
PN347
THE COMMISSIONER: Take out?
PN348
MR D'ABACO: Yes.
PN349
THE COMMISSIONER: Yes.
PN350
MR D'ABACO: Paragraph 19 to be deleted in its entirety.
PN351
THE COMMISSIONER: Yes.
PN352
MR D'ABACO: Paragraph 20 to be deleted in its entirety.
PN353
THE COMMISSIONER: Yes.
PN354
MR D'ABACO: Paragraph 21 to be deleted in its entirety.
PN355
THE COMMISSIONER: Yes.
PN356
MR D'ABACO: Paragraph 22 to be deleted in its entirety.
PN357
THE COMMISSIONER: Yes.
PN358
MR D'ABACO: Paragraph 30 to be deleted in its entirety.
PN359
THE COMMISSIONER: Yes.
PN360
MR D'ABACO: Paragraph 34 to be deleted in its entirety.
PN361
THE COMMISSIONER: Yes.
PN362
MR D'ABACO: Paragraph 37, the third line, sir, words appearing near the end of that line, "nor supported by the facts" to be deleted.
PN363
THE COMMISSIONER: So just "nor supported by the facts"?
PN364
MR D'ABACO: Yes, that's the sentence will now simply read "This is simply not true."
PN365
THE COMMISSIONER: Yes.
PN366
MR D'ABACO: Paragraph 41, the final sentence commencing on the third last line, "Callister never felt" to be deleted.
PN367
THE COMMISSIONER: Yes.
PN368
MR D'ABACO: Paragraph 46, the final sentence commencing on the second last line, "This is yet another inconsistency," that sentence to be deleted.
PN369
THE COMMISSIONER: Yes.
PN370
MR D'ABACO: Paragraph 61 to be deleted.
PN371
THE COMMISSIONER: Yes.
PN372
MR D'ABACO: And finally paragraph 72 to be deleted.
PN373
THE COMMISSIONER: Yes.
PN374
MR D'ABACO: There are a number of paragraphs where my friend and I have not reached agreement. They are thank fully relatively limited in scope and subject to my friend confirming that it is in agreement with those paragraphs, I wish to move now to have a short argument in relation to those parts, sir.
PN375
THE COMMISSIONER: Yes, all right. Mr Backwell, are you happy with that course?
PN376
MR BACKWELL: Yes, sir. I think that it would be best if my friend introduces it, yes.
PN377
THE COMMISSIONER: Yes, all right, thanks.
PN378
MR D'ABACO: If I can take you, please, sir, to Ms Robertson's original statement of 8 October. There's only one paragraph where my friend and I are at issue, paragraph 44. The words in issue or parts of the statement ion issue, sir, are on the fifth line commencing with the sentence, "I cannot understand why", and we object, sir, to the entirety of that sentence and also the next two sentences, "It is also at odds with her claim" and "It would seem logical", and the basis for the objection, sir, is that those three sentences are not evidence of facts. They constitute in my respectful submission speculation and argument on behalf of the applicant and they are matters which ought properly deserve full submission, rather than argument in the context of a witness statement.
PN379
THE COMMISSIONER: Well, I have to say, Mr Backwell, that sounds right to me. I don't think I need to rule them in or rule them out at this stage. It seems to me that it will be a matter for submission what weight I attach to those statements, wouldn't you think?
PN380
MR BACKWELL: Yes, if the Commission pleases, that would be the appropriate course.
PN381
THE COMMISSIONER: Yes.
PN382
MR D'ABACO: We do maintain the objection, sir. I mean, it is in the way of argument. I mean, those are ultimately matters that, if my friend wishes to put those in submissions on the basis of evidence properly adduced, well, that's a matter for him, but it's improper in my respectful submission for those parts of the applicant's statement to stand and they ought to be deleted along the lines of other parts which have been deleted which suffer from the same flaw.
PN383
THE COMMISSIONER: Mr D'Abaco, I'm not prepared to make a ruling to that effect. It will be very much a matter for submission. I can see that they represent opinions of Ms Robertson.
PN384
MR D'ABACO: If the Commission pleases.
PN385
THE COMMISSIONER: Right. That's the only one that are flagged?
PN386
MR D'ABACO: Yes. If I can take you, sir, to Ms Robertson's supplementary witness statement.
PN387
THE COMMISSIONER: Yes.
PN388
MR D'ABACO: Paragraph 7. Clearly argument, Commissioner. It's not evidence of facts, it's not evidence of opinion, and in those circumstances the paragraph should be struck out in its entirety.
PN389
THE COMMISSIONER: Yes. What do you say, Mr Backwell?
PN390
MR BACKWELL: Yes, Commissioner, if I just might make some overall comment to this process here.
PN391
THE COMMISSIONER: Yes.
PN392
MR BACKWELL: I think that it's important to emphasise again, this is an arbitration of an industrial dispute. It's not a matter of a trial even within the civil context, and certainly not criminal. I would also submit that section 98 of the Act in relation to avoiding technicalities is a relevant provision in relation to your decisions on these matters in contests. The CPSU will not be making any form of objection to similar statements in the respondent's witness statement because we have full faith in the Commission making the decisions on the material at hand. This is not a jury trial where we need to be concerned about lay people maybe making a mistake.
PN393
So in relation to that, it's an overall comment, and specifically in relation to paragraph 7 we say that it is quite material to our case. Of course, in relation to the Evidence Act, if we were to use that as a framework, then a key test for any form of evidence is relevance and in relation to this we believe that it is relevant in relation to the budgets that are applicable for the particular positions, so therefore this would be one of our submissions.
PN394
THE COMMISSIONER: Yes, all right. Mr D'Abaco, I can see why this could be relevant. But what I would to make of it would very much depend on, I would have thought, other evidence which might come before me. So at this stage I note that you've objected and I'll take that objection into account when I come to consider it and I'll read this clause in relation to any other evidence which is before me. Yes, which one is next?
PN395
MR D'ABACO: Yes, thank you, sir. I was going to take the Commission to paragraph 10. We don't press that objection, sir.
PN396
THE COMMISSIONER: Yes, all right.
PN397
MR D'ABACO: Paragraph 26, we object, sir, to the two sentences commencing on the third line of that paragraph, "and a budget of 150 million" down to and inclusive of the sentence commencing, "This increase in budget management responsibility." Again, it falls into the category of the previous two objections, sir. It's argumentative. It's not evidence of facts. They're matters which should be properly the subject of submissions in the event my friend wishes to make submissions in that regard. It's not for this witness to argue the case by way of witness statement.
PN398
THE COMMISSIONER: Well, I think I suppose it reflects her state of mind.
PN399
MR D'ABACO: Well, it may well reflect her state of mind, but with respect to the applicant, her state of mind is neither here nor there, sir. It's a matter of the facts which are properly produced.
PN400
THE COMMISSIONER: I think Ms Robertson's state of mind is probably going to be of relevance to the whole thing, but look, I note your objection and I'll bear your objection in mind. I note she's expressing opinion with regard to those matters, her opinion with regard to those matters.
PN401
MR D'ABACO: If the Commission pleases. Paragraph 30 - - -
PN402
THE COMMISSIONER: I thought 30 was out? I thought you'd told me 30 was out, yes.
PN403
MR D'ABACO: Sorry, sir, thank you, yes. Paragraph 35 - - -
PN404
THE COMMISSIONER: I mean, it's really not helpful to have mere speculation before me here and I note that what appears to have been deleted by consent appears to relate to matters which were, if you like, speculation on the part of Ms Robertson, whereas these other things are statements of opinion based on facts. Whether I might share that opinion based on those same facts will be a matter of submission and the evidence before me. Yes, thank you. So which one, paragraph 35?
PN405
MR D'ABACO: Paragraph 35, the final sentence, Ms Callister's comment, "It appears designed", that's pure speculation, sir, it's also a conclusion. It's not evidence and it ought be struck out.
PN406
THE COMMISSIONER: Yes. Mr Backwell, I'm inclined to agree with that. It's speculation, yes, thank you.
PN407
MR BACKWELL: Yes, Commissioner, I agree. Yes, we consent.
PN408
THE COMMISSIONER: Yes, thanks.
PN409
MR D'ABACO: Paragraph 42, the sentence commencing on the fifth line, "Ms Callister's claims", it's purely argumentative. It forms an argumentative conclusion on the basis of evidence which has not been adduced and goes to matters which in my submission ought properly be the subject of submission, other than evidence from this witness.
PN410
THE COMMISSIONER: I should say with regard to this, Mr Backwell, only that I think it's an expression of Ms Robertson's opinion and to that extent, really, I'm going to be looking to hard evidence with regard to it. What's your view with regard to that? Do you want to press your objection to - - -
PN411
MR BACKWELL: Commissioner, if it please, if it may be of assistance, we'd be happy with the words "claims are also inconsistent with the fact that she".
PN412
THE COMMISSIONER: Yes. So what would you like to come out?
PN413
MR BACKWELL: So then it would be "Ms Callister did not contact on her return from leave".
PN414
THE COMMISSIONER: Yes. How do you feel about - - -
PN415
MR D'ABACO: On that basis I don't - with the deletion of those words, I don't press the objection, sir.
PN416
THE COMMISSIONER: Yes, all right, fine, thanks. Yes?
PN417
MR D'ABACO: Paragraph 47, that part of the paragraph commencing with the sentence on the second line, "This cannot be true." That's a conclusion on the basis of evidence which is yet to be adduced. It's not a matter for this witness to be putting argument of that sort. That's ultimately a matter of submission and something which the Commission will draw a conclusion from.
PN418
THE COMMISSIONER: Yes. Perhaps if the words, "This cannot be true as" could come out, I wonder, Mr Backwell, and then it just says, "Mr Clements told me the following, that Ms Callister had discussed the situation with him and encouraged him to apply." That's a statement of fact.
PN419
MR BACKWELL: Commissioner, I would consent to that, however I just will note there are quite a number of other statements, both in the respondent's witness statements and in Ms Robertson's, that do make statements of "this is not true" and however, so we're rapidly going to become quite nit-picky.
PN420
THE COMMISSIONER: And I'm not wanting to encourage people to be nit picky but if either of you raise an objection, I'll take your objection into account. I'm just trying to reduce the areas of contention to the minimum amount possible. Thanks, Mr Backwell. Yes, Mr D'Abaco?
PN421
MR D'ABACO: On that basis I won't continue to press the remaining part of - - -
PN422
THE COMMISSIONER: Yes, fine, thank you. Good, all right.
PN423
MR D'ABACO: Paragraph 48, I don't press that, sir. Paragraph 56, sir, the final sentence commencing on the third last line, "My absences from work were due to"- - -
PN424
THE COMMISSIONER: "Were the direct result of".
PN425
MR D'ABACO: "Direct result", I'm sorry. We say that that statement is clearly argumentative. It draws conclusions which are ultimately ones which will have to be reached, if they are to be reached, by the Commission, and that this sentence should not go in as evidence.
PN426
THE COMMISSIONER: Well, what do you say with regard to that, Mr Backwell?
PN427
MR BACKWELL: Yes, Commissioner. If we were to make an amendment to it which was to say, "My absences from work I believe were due to an illness arising from what I believe was Ms Callister's reckless management of the situation," then it would therefore be of Ms Robertson's mind rather than as stated there, and so we'd be happy with that. She is, and we are going to contend that she was of the belief, and her doctor was of the belief that the stress which was being caused to her created the illness.
PN428
THE COMMISSIONER: Yes.
PN429
MR D'ABACO: It's a matter for Ms Robertson to give evidence not, with all due respect to my friend, Mr Backwell.
PN430
THE COMMISSIONER: Don't get too nit-picky.
PN431
MR D'ABACO: If the sentence is to be deleted, it should be deleted. If my friend wishes to ask a supplementary question to the witness in relation to the issue, then that's of course entirely appropriate.
PN432
THE COMMISSIONER: Look, I note y our objection. I note what Mr Backwell said. I'm happy to simply mark it that you're objecting and I'm happy to leave it in at this stage. That will be a matter for evidence, but I note that Ms Robertson is entitled to express a view as to what she though the cause of her illness actually was.
PN433
MR D'ABACO: If the Commission pleases. The final one, sir, is paragraph 57, on page 10 the sentence commencing "It appears that" and the remaining part of that, "It appears that clearly indicates that it is speculation on the part of the witnesses," it's not evidence of anything she has observed or evidence of anything she has heard, it's a conclusion, and the remaining part is clearly argument, reference to the disingenuous behaviour of the respondent and so forth are matters not for a witness. They are conclusions and on that basis the remaining part of that paragraph ought be struck out.
PN434
THE COMMISSIONER: Well, she's not entitled to state the fact that she was not told of her rights to lodge a grievance at this stage?
PN435
MR D'ABACO: We would not object to that part. I mean, that is already in evidence elsewhere, but we don't object to the witness re-stating that. The difficulty is this, sir, that particular statement is so inextricably linked up, as it were, with the speculation and the argument which both precedes and follows it. If that is the evidence which is to be led, then in my respectful submission, the offending parts which I have highlighted should be struck out. If my friend wishes to ask the question of Ms Robertson when she is in the witness box, that's a course of action available to him.
PN436
THE COMMISSIONER: Yes, Mr Backwell. What do you say?
PN437
MR BACKWELL: Yes, Commissioner, I think it would be consistent with your other rulings on this matter to note the objection and to make your ruling in relation to it as the evidence unfolds.
PN438
THE COMMISSIONER: Yes. I'm going to deal with it that way, Mr D'Abaco. I mean, I realise this is an expression of a series of opinions and I'd be looking for hard evidence to sustain and back-up those opinions, so, yes, thanks.
PN439
MR D'ABACO: If the Commission please, that is the conclusion of the objections.
PN440
THE COMMISSIONER: Yes, thank you. Yes, Mr Backwell?
PN441
MR BACKWELL: Yes, thank you, Commissioner. I'd like to call Ms Janice Robertson to the stand.
PN442
THE COMMISSIONER: Yes, perhaps why don't we begin with - Ms Robertson, while you're getting read to go into the witness box - why don't we begin by tendering your various submissions which I'll mark and then let's get these witness statements in order as well.
PN443
MR BACKWELL: Commissioner, we'll be relying on the first witness statement which I understand was submitted in previous proceedings in this matter.
PN444
THE COMMISSIONER: Yes, anyway, re-tender it for this.
PN445
MR BACKWELL: Yes, of 8 October, if I might tender that and the attachments.
THE COMMISSIONER: Yes, all right.
EXHIBIT #CPSU1 OUTLINE OF SUBMISSIONS
MR BACKWELL: Commissioner, we'd then also tender the supplementary witness stated dated 12 August and filed 15 August, 2005.
EXHIBIT #CPSU2 WITNESS STATEMENT OF JANICE ROBERTSON
PN448
THE COMMISSIONER: There are quite extensive attachments to those so they're going to take their numbering in accordance with the annexure numbers that they're given. Is that right, Mr Backwell?
PN449
MR BACKWELL: Thank you, Commissioner.
PN450
THE COMMISSIONER: Mr Backwell, yes, go on.
MR BACKWELL: Yes, Commissioner, if I might call Ms Robertson to the stand please.
<JANICE ROBERTSON, SWORN [10.40AM]
PN452
THE COMMISSIONER: Just excuse me, Ms Robertson. If I can just go back to these exhibit numbers, Mr Backwell. First of all, on 8 October 2004 the CPSU sent in an outline of submissions on behalf of Ms Robertson, is that correct, yes?
PN453
MR BACKWELL: Yes, Commissioner.
PN454
THE COMMISSIONER: That should be CPSU1 and that has the bundle of attachments to it, yes? And then there is a witness statement from Ms Robertson, is that correct?
PN455
MR BACKWELL: Sir, it's my understanding that the outline of submission had no attachments to it, but the witness statement does, yes.
PN456
THE COMMISSIONER: The witness statement has, yes, well, that's fine. Yes, I see. So CPSU1 is going to be the outline of CPSUs submissions on behalf of Ms Robertson from 8 October 2004, are you happy with that?
PN457
MR BACKWELL: Yes, if the Commission pleases.
THE COMMISSIONER: Yes. CPSU2 will be the witness statement of Janice Robertson dated 8 October 2004 and CPSU3 will be the supplementary witness statement of Janice Robertson of 12 August 2005. Yes, thank you.
EXHIBIT #CPSU3 SUPPLEMENTARY WITNESS STATEMENT OF JANICE ROBERTSON DATED 12/08/2005
<EXAMINATION-IN-CHIEF BY MR BACKWELL [10.41AM]
PN459
MR BACKWELL: Ms Robertson, if you could address your answers to the Commissioner. I'm going to obviously not lead you word by word through your witness statement - - -
PN460
THE COMMISSIONER: Could I just interpose there. Ms Robertson, you talk as is going to feel comfortable for you. I realise it can be quite stressful for you there. If you want to look at Mr Backwell, you look at Mr Backwell, or if you want to talk to Mr D'Abaco, you do that. I'll be quite capable of hearing you. Whatever's comfortable for you. Right, thanks, Mr Backwell?
PN461
MR BACKWELL: Thank you, Commissioner.
PN462
Yes, as I say, we will not be going through word by word with the witness statement because of course, that's why we've created it but I do wish to move to some of the elements there to be able to get your version of the events that have resulted in this arbitration of an industrial dispute. So I understand that you have worked for 13 years at the Department?---No, I've actually worked, I think, almost 17 years.
PN463
17 years, my apologies.
PN464
THE COMMISSIONER: Just tell me, when did you start working?---I started working first with the Department in 1985, then I left - - -
PN465
Do you remember - you actually, then you broke the employment relationship at that stage, did you?---I then left for a year and worked for the Mission of St James and St John and I then returned, I think it was '87. I probably need to check the dates.
PN466
Public servants always have these things accurately set down somewhere, Ms Robertson?---Yes, I do have it in fact.
PN467
It will be helpful for me to have them in due course, yes, thank you. Yes, go on, Mr Backwell, yes.
PN468
MR BACKWELL: I was just wondering, if you just might very briefly outline the course of your career with the DHS, just perhaps the positions that you've held since that time and of course, if you can't get all of them, it's understood it's because you have been moving round to many places during that 17 years?---I was first employed in the North East Region based in Preston as a Child Protection Worker and just basically involved in the investigation of allegations of abuse and neglect and I continued in that role from when the Children's Protection Society handed over the work to the Department, so I was initially employed by the Children's Protection Society and then the Department assumed responsibility for those functions and then I went across as part of that. I then, as I mentioned, left the Department in 1987 to work in Residential and Foster Care of the Mission of St James and St John in Newport and then I returned to the Department in 1988.
**** JANICE ROBERTSON XN MR BACKWELL
PN469
THE COMMISSIONER: So you returned to the Department in 1988?---Yes.
PN470
Yes, good, fine, thanks?---Yes, and I then worked as a team leader in the Child Protection which involved the management of a group of Child Protection Based Grade workers involved in investigation and I then acted for a short period as the Child Protection Manager in that region, before I then moved into head office, to work in a policy position. So my first position in policy role was in about 1990.
PN471
In head office?---Which was then in Fitzroy, yes. I was a Policy Adviser for a number of years and then a Senior Policy Adviser. In 1995 I commenced as the Manager of Community Based Services for Juvenile Justice which was a position based in head office.
PN472
What was the title?---Manager, Community Based Services in the Juvenile Justice Branch which is basically parole and parole work and supervision of juvenile offenders.
PN473
Yes?---And I managed that area until 1997 and a number of policy advisers worked to me in that position.
PN474
How many?---It probably varied at different times. Probably, at one stage it was probably five. It was actually quite a small branch.
PN475
So it would have been, what, from five down to how many involved?---At various times it would have been four, yes, but generally we had a number of programs that we were responsible for in Criminal Justice averaging - - -
PN476
Was the grading system the same at that stage as it is now, or has it changed?---It was different. When I first started in that position I was classified as an AM8 and then with the new classification structure which translated to a VPS5 position.
PN477
When was that?---I think that occurred shortly after I moved positions, so I think it was about '98.
PN478
So the position that you went to in 1997, what was that? That turned in to a VPS - - - ?---A VPS5 and then the new classification structure that was implemented last - year before last made that a - I think it's a VPS6.
**** JANICE ROBERTSON XN MR BACKWELL
PN479
That's fine. So let's just go to this 1997 position. What was that?---That - the Juvenile Justice position?
PN480
Yes?---That position was an AM, which is Administrative Officer 8 position.
PN481
So in 1995 you were made Manager, Community Based Services in Juvenile Justice branch. In 1997 you went into?---In 1997 I went into the position of Manager, Policy and Legislation, which was back in the Child Protection Branch so I moved out to go to Juvenile Justice and then I returned to the Child Protection Branch in '97 and - - -
PN482
And that turned into a VPS5 position?---From an AM8, yes, translation.
PN483
Yes?---And in that role I managed the Legal and Court Advocacy Unit which was actually based at the Children's Court, which consisted of lawyers and social workers involved in representing the Department in matters before the Children's Court and I was also involved in the development of policy underpinning any legislative amendments to the Children's and Young Persons Act and basically involved any policy or practice issues that related to the provision of legal services to the Child Protection Service. That's the overall description.
PN484
Yes?---In 1999 I moved into the position of Manager, what was then titled Service Development, which then became the position, Manager, Out of Home, Specialist Support.
PN485
In which branch?---And that was also in the - - -
PN486
In Child Protection?---The Child Protection Branch. I think by that stage there had been an amalgamation of the Child Protection and Juvenile Justice Branches, so by that stage it was called Child Protection and Juvenile Justice Branch.
PN487
And so what was the level of that position?---That position was the VPS5 position, it was the same - - -
PN488
This was also a VPS5?---It was the same level as the previous two positions that I had, yes.
PN489
MR BACKWELL: Commissioner, I think it might be of assistance to go through a full chronology from - until we get to today.
**** JANICE ROBERTSON XN MR BACKWELL
PN490
THE COMMISSIONER: Yes, absolutely, yes. Yes?---So I commenced in that position in 1999 and that was following the restructure that led to the amalgamation of the two branches, Child Protection Juvenile Justice. At that stage there was a government policy in relation to the outsourcing of most of the services provided by the government and many of those services were located within the area which I managed, including Foster Care and Residential Set-up. So when I first commenced in that position most of the work involved the development of policy around, preparing to outsource those services. Upon the change of government at the end of 1999 that policy was reconsidered and the work - the focus of the work actually changed to maintenance of quite a number of services within the organisation and the development of relationships with the non-government sector that was not based on the purchase of provider model, but on a partnership model. So the whole matrix of liaison between the Department and funded agencies was reconsidered and the relationship was renegotiated on a different basis to what had been the case on the previous - - -
PN491
So is this after the Bracks government was elected, was it?---Yes.
PN492
I'm not from Victoria, so I have to remind myself about these things. Yes?---A lot of the services hadn't had any funding increase during the previous seven years or so, but there'd been some increases based on CPI and so forth, but the whole nature of the funding basis hadn't been reviewed extensively because the view was that there would be a contestable process in order to outsource those services. So at that point it would be up to the providers to provide the - set the level of funding that they were requesting for the provision of the services. So funding hadn't been a big issue in the previous few years. Once there was a change of policy, we were then required to look at those services quite differently, to actually cost them differently, putting all of the infrastructure on costs and so forth and to develop models of funding because that reflected the actual costs rather than the price that you could purchase it for. So that involved the majority of our work over that period of time. There was also a desire by the government to look at the quality of the services that had been delivered under the previous government, so they wanted complete audits done of those services based primarily on the welfare of the children using those services and that absorbed quite a bit of our work auditing, the safety and wellbeing of children in residential care, foster care and kinship care and primarily that was to establish benchmarks at the point of entry of government, yes, in terms of looking at what they then - what quality improvement initiatives they could implement that would change those - that would improve on those outcomes.
**** JANICE ROBERTSON XN MR BACKWELL
PN493
So what sort of staff did you have then in that job?---I think when I initially went into the position, I think there'd been a restructure, as I mentioned, and there'd been some downsizing of the numbers across the whole branch. I think at the point that I came across to that position there was about 10 staff. I would need to check. It was quite a small unit because the intention was that head office's role would be quite minimal, it would be setting prices, it would be managing contracts essentially, so it wasn't about expert input, it was about contract management.
PN494
Do you have a recollection of what the budget was?---I think the budget at that time, my recollection was in the order of 120, 130 million dollars. So they were still - it was a large budget, it is a large part of the Division's budget based on the providers to those - - -
PN495
Yes, all right. So what happened after that?---Because of the change in policy in relation to now continuing to provide the services rather than just contract management, it then involved, we need to increase additional staff who had expertise in the operation of those services, rather than just contract management. So the unit actually grew. We also picked up a number of additional projects that - including the Intensive Therapeutic Services which became the Take Two Service. That involved quite a lot of work to develop service models and options for implementation. So the unit probably grew by probably another five staff over the next couple of years.
PN496
So up to about 15?---Probably by - I think around - yes, probably, that would be right.
PN497
Did the budget change at all?---The budget - we got a significant budget increase with Residential Care after we developed - after the audit was released which showed very poor outcomes in residential care and there was an additional budget allocation of about eight million per year for residential care. The Take Two service was an additional annual budget of five million and there were also increases in - CPI increases in a range of other services.
PN498
So a budget increase of about 15 million a year for progress, putting aside CPI increases?---Yes. Not every year obviously, but there was clearly an identified need to put quite a bit of additional money into those services during that time given the history of no significant increase for a period of time.
**** JANICE ROBERTSON XN MR BACKWELL
PN499
Yes, thanks. So what happened, what was the next job after that?---That was the job - that job then became the Manager of Out of Home Specialist Support Services.
PN500
So this job sort of was restructured into that or - - - ?---The restructure that will change the title occurred in 2003 and in the branch and that involved the - at that stage there was a situation where permanent care, which includes adoption and permanent care which was from the Children's Court and was located in another area of the branch. It wasn't located within the placement area, and Inter Country adoptions also located in another area of the branch, and those two program areas were transferred into my area in the restructure of 2003 and that's when the title of the position changed and - - -
PN501
And changed to Manager, Out of Home Care?---And Specialist Support.
PN502
And Specialist Support, and received additional functions?---Additional functions and the division that was attached to those functions came over. The primary - in terms of the positions was - because of the transfer of Inter Country Adoptions, because those staff were operational staff in that they actually - they were located in the head office but they delivered that service. They did the assessments of the families and they organised, you know, the adoption process and so forth. So they were essentially social work staff doing social work.
PN503
From 2003, once those changes had been bedded down, what sort of staff did you have?---That change was just in the process of occurring when I went on maternity leave and it was only finalised, I think, in about - when I returned, at the end of the March.
PN504
So when you went on maternity leave, what staff did you have?---May I refer to my - - -
PN505
Absolutely, yes?---Thank you.
PN506
Do you remember what the budget was, just while - - - ?---I do have that here.
PN507
That's all right?---The transfer over of those additional areas were, I think, probably - I think it was about - because there's Foster Care, there's payment that would often go with those areas as well, that are actually made to the Inter Country Adoption, to the permanent care parents and so forth, so it's not all budget related to service. I think it was about 140 million at that time. The number of staff?
**** JANICE ROBERTSON XN MR BACKWELL
PN508
Yes, yes. You've given me the budget. It's just the number of staff. It doesn't matter, it will emerge at some stage?---Yes. It was probably - I mean, there was always, sometimes two people occupying one position and at various times we had students and so forth. I think it was about 18, probably, but I would need to check that. I have to go back and check it. I can't actually find it.
PN509
No, that's fine. Don't worry about it now. I daresay we'll be hearing from the other side about it, so, yes. At some stage if you're able to find it, but don't worry about it now. Yes. So that really gives me the position as at the time you went on maternity leave for the first time?---Yes.
PN510
Good, thanks, Mr Backwell. That was very useful.
PN511
MR BACKWELL: Thank you, Commissioner. I just wonder, though, if we might just complete that through, the process, so that we can get also very clearly the positions we have and what dates.
PN512
THE COMMISSIONER: Yes, all right. The other thing is, this position was still a VPS5 position or - - - ?---Yes, Commissioner. And after the restructure it was made a VPS5 position.
PN513
After the 2003 restructure?---Yes.
PN514
How are those positions described? Is it a Section Head position, a Branch Head position?---In terms of the organisational structuring it's called a Manager position related to - reported directly to the Director who then reported to the Executive Director.
PN515
Who was the Head of Agency, he was a CEO or - - - ?---No, I don't think he would be that.
PN516
It's sounding like - look, this is just a question I have and really, I don't know that much - I'm just trying to get a picture of it. It sounds like it was a Section Head position reporting to a Branch Head position that reported to a Division Head position, then I suppose in Commonwealth Public Services terms, but whether that's how it translates in - - -
PN517
MR BACKWELL: It may be of assistance, Commissioner. We will be focusing very briefly on the reporting lines of these positions, so I think it will be a material fact.
**** JANICE ROBERTSON XN MR BACKWELL
PN518
THE COMMISSIONER: Yes, thank you.
PN519
MR BACKWELL: If we may just spend at this point, just a short time on that, and then return to the chronology of - - -
PN520
THE COMMISSIONER: It will in fact be very helpful. You might focus me on, if you like, does the Department of Human Services have a Director General or - - - ?---It has a Secretary. The position was previously Director General and then the title changed to Secretary.
PN521
Formerly DG, and just focusing on your reporting hierarchy, what's below the Secretary's position?---The Executive Directors and then the Directors below the Executive Directors. I've actually got a - - -
PN522
MR BACKWELL: Yes, Commissioner, if it's of assistance, attachment 1 of the first witness statement has an Organo gram available to - - -
PN523
THE COMMISSIONER: So that's CPSU2, attachment 1.
PN524
MR BACKWELL: If I might take the Commissioner and the witness there, we could perhaps locate her and to understand the reporting line.
PN525
THE COMMISSIONER: Yes?---There's also a copy of the organisational structure of broad-linking in one of the written statements.
PN526
So the Director, are we then looking at what's called Branch Structure Child Protection and Juvenile Justice, is that the document we're now looking at, as at 15 December 2003, is that correct?
PN527
MR BACKWELL: Yes, as attachment 1.
PN528
THE COMMISSIONER: So the Director, Child Protection and Juvenile Justice head Gill Callister, is the position, Director, that you've just described to me, reporting to the Executive Director of the Department of Human Services. What was it, Executive Director of what?---Community Care.
PN529
Community Care, that's great, thanks, really helpful.
PN530
MR BACKWELL: And the Executive Director of Community Care then reports to?---The Secretary.
**** JANICE ROBERTSON XN MR BACKWELL
PN531
To the Secretary.
PN532
THE COMMISSIONER: Well, I may be wrong, but that looks like a sort of Section Branch Division Head type structuring, I suppose.
PN533
MR BACKWELL: Yes, you have the advantage on me, Commissioner.
PN534
THE COMMISSIONER: Yes, in Commonwealth Public Service terms. I'm just trying to get a picture of it and I - yes?---In our previous structure there were sections within the Department and then they changed to branches and there was what was called the Child Protection Section and then the Placement Support Section, which actually then - and it had an Executive Officer leading that section. They then amalgamated those two areas and it became the Child Protection Branch, rather than the Executive. So it was at one time a Section - - -
PN535
Yes.
PN536
MR BACKWELL: Commissioner, I think we're getting very close to being able to finish up the picture of time line here, sir, so if we may move to that.
PN537
THE COMMISSIONER: No, that's fine.
PN538
MR BACKWELL: So we've got maternity leave occurring on March 2003?---I commenced at the end of March, 29 March 2003.
PN539
First of all, what was the classification that you were actually on when you left, the VPS classification as per agreements and the like, that you were on on the date that you left on maternity leave?---VPS5.
PN540
There is contention about positions here. If I might just frame it in this way. The VPS5 position, and then there was the creation of an EO position, if we could use that language. Could you just take us through that process that occurred, from the creation of the VPS5 position and then the creation of the EO position, dates and times?---The restructure in 2003 involved extensive consultation with consultants - - -
PN541
THE COMMISSIONER: Sorry, when did that start?---I think it started in about October 2002. It was implemented the following - fully implemented I think the following June or July. It was while I was absent that it was implemented.
**** JANICE ROBERTSON XN MR BACKWELL
PN542
MR BACKWELL: So the restructure began while you were present in the position?---Yes, and then the position was - to which there was a lot of input and extensive consultation. There was a consultation environment. The 2001 agreement with the union, I was involved in that and so forth and at that stage my position did become bigger but included additional programming. I recall called to consult at the time about the anomaly between migrating and the other people at my level in terms of my position at - - -
PN543
THE COMMISSIONER: This was before you went on leave?---Yes, and I actually think that issue may have been addressed during the restructure and made the decision at that point to regrade the position and advertise the position, which would, to me, seem the most logical way and the most appropriate time to have done it, when the position first changed, but that didn't occur and I then was advised in December of 2003 from the Department that there had been - that the new structure had been implemented, the new career structure, and my position was considered to be over-grade, which on initial reading - but it actually meant that it was in fact the other way. It was paid too high for that grade.
PN544
MR BACKWELL: If I might just pause, we need to be very clear. You said that the new structure was implemented. Which particular
structure is that? Is that the structure of the organisational operations of the Department or another
structure?---No, the new Public Service classification structure, so there was a new restructure developed by the Public Service.
PN545
THE COMMISSIONER: For the whole of the Public Service?---Yes, and - - -
PN546
So there were two different restructures going on at the same time, were
there?---Yes.
PN547
One for the whole of the Public Service?---Which was really about just confirming a different career path in terms of the number of levels, different - within the Service. The previous structure had actually involved some overlap between levels. There'd been some overlap and that had been found to be problematic.
PN548
Yes, it sounds like it was pretty much a copy from the Commonwealth Public Service restructure.
PN549
MR BACKWELL: Whilst I am loathe to give evidence from the bar table, if one is in a departmental structural process, the way we do operations, and there is an industrial matter that is to do with the Community Public Sector Union and the State Government of Victoria - - -
**** JANICE ROBERTSON XN MR BACKWELL
PN550
THE COMMISSIONER: Yes, yes, now I fully understand. Just, it does seem as though that whole Service change which has taken place very much occurred - because I remember in the Commonwealth Public Service that they introduced Executive Officers and all of those sorts of things. They all sound very similar to me in terms of other places that I've worked. Yes. So, but if I can just be clear, when was Ms Robertson notified of the intention to change the classification of the job she'd been doing which was the Manager, Out of Home Care, from a VPS5 to an Executive Officer position?---That was by telephone on - telephone call from Gill Callister on 9 January.
PN551
9 January?---2004.
PN552
Yes?---So it was advised in December that the position was over-grade and that it may have to be - and I would need to discuss that with my manager. I think there were some time lines set up. I think the Commission had an involvement in that process, and there was a time line set by which time you needed to have negotiated with your Manager what additional titles you may take on and then it was only a matter of, result of that, that I got a phone call from Ms Callister saying that the position is now so complex that we decided to make it an Executive Officer position.
PN553
MR BACKWELL: Commissioner, I might take Ms Robertson through some of these more substantive details at the conclusion of the chronology.
PN554
THE COMMISSIONER: Yes, absolutely.
PN555
MR BACKWELL: If I might just draw us to 9 January, we will go through some substantives there, but I just want to get it very clear for the Commissioner of what time frame we have. At what stage was the Executive Officer position advertised?---It was advertised at the end of January, to my recollection, in The Australian and The Age. I think it was the long weekend, to the 28th or 27 January, so it was - I was notified on the 9th and I was told during that telephone call that KPMG would contact me in relation to organising an interview and I hadn't heard from them in the meantime. I noticed the position advertised in The Age and The Australian.
PN556
Again, just going on pure chronology here. At what date were you notified that the Executive Officer position had been filled and that you were unsuccessful?---I think it was 4 June 2004. I think it was 4 June. I can just check.
**** JANICE ROBERTSON XN MR BACKWELL
PN557
So your return from maternity leave - - -
PN558
THE COMMISSIONER: Give her a moment, thanks, Mr Backwell.
PN559
Yes?---3 June, Commissioner.
PN560
Yes, thanks. Who informed you?---Mr Alan Hall who was a member of the selection panel.
PN561
So did KPMG get in touch with you?---After - I contacted the Department after I saw the position advertised and they said KPMG hadn't been given my phone number, so they then gave them the number and KPMG contacted me and I provided a Curriculum Vitae and attended an initial interview with KPMG, and KPMG provided me with the position description of the position, which I hadn't seen up until I had contact with them. I think it was probably at that point that, in my view, it became apparent, in my view the position was the same. Initially when I had had the discussion with Ms Callister I - - -
PN562
No, that's all right, don't worry. Let Mr Backwell keep you on track.
PN563
MR BACKWELL: I will move to those issues, sir.
PN564
THE COMMISSIONER: No, that's all right, but I'll let you unroll as you think is appropriate.
PN565
MR BACKWELL: Thank you, Commissioner.
PN566
So, your return from maternity leave, what date do we have there?---I think it was 29 March 2004 or was it - it was the Monday.
PN567
The position - - -
PN568
THE COMMISSIONER: You went on maternity leave on 29 March 2003?
---And I returned on 29 March 2004.
PN569
MR BACKWELL: The position you returned to?---There was a number of discussions during the previous months before I returned to work and what I was told was that I would be returning - and what actually happened, was that I return to my position until it was filled, and at that point, you know, if I was the successful person, I would continue in doing it.
**** JANICE ROBERTSON XN MR BACKWELL
PN570
So this is the Manager of Out of Home Care and Specialist Support?---That's correct, yes.
PN571
Then take us from the date that you were unsuccessful in the Executive Officer position, take us through in dates till today, in relation to when you next left the Department?---After I was told I was not successful, I actually ended up negotiating with the Department to go to a temporary position in the North West Region in Fitzroy.
PN572
THE COMMISSIONER: So this was after 3 June 2004?---Yes. I think I started - ended up starting in Fitzroy in about July and - which was - we continued to disagree over the - whether that was in fact my position or not and the Department's view was that it wasn't and that I could move into another person and attempted to negotiate another person unsuccessfully. Then in the interim I lodged a selection bonus with the Department - - -
PN573
When did you do that?---I think it was about 6 June after I - - -
PN574
Yes, good, fine?---So that therefore put things on hold until - potentially although I moved out of my position and I then went to work in Fitzroy and - - -
PN575
So what was the position you went to in Fitzroy?---Well, it was a project position. The North West Region had just undergone restructure and - with the two regions amalgamating, the Northern Region and the Western Region and what I was required to do was negotiate a project with the Manager there which I attempted to do. The region was still in quite a bit of turmoil, there was still quite a bit to do after the restructure, quite a few - there had been a number of positions at my level that had been displaced as part of that restructure so there was a number of people doing project type work and I attempted to do that until I commenced maternity leave in November.
PN576
So when did you start maternity leave?---I think it was 4 November 2004.
PN577
MR BACKWELL: You're still on maternity leave as we speak?---And I'm - yes, due to return in November of this year.
PN578
November 2005, terrific. Thank you very much for that. Commissioner, I hope that is of some assistance - - -
**** JANICE ROBERTSON XN MR BACKWELL
PN579
THE COMMISSIONER: Yes, it is, thank you.
PN580
MR BACKWELL: Thank you for your assistance through that process too.
PN581
THE COMMISSIONER: Yes, all right.
PN582
MR BACKWELL: Ms Robertson, I will now return to some more specific questions. I'd like to take you actually back now to 2002 and the commencement of the initial - or the restructure that resulted in your new position, that's 2002. I understand that Ms Callister was appointed as Director of Child Protection and she initiated a restructure?---Yes. So the restructure must have commenced early because she commenced in that position, I think, in about March 2002 and it was probably then a matter of months before she commenced a restructure, so it must have been earlier than what I thought.
PN583
We have alluded a little bit to the nature of this restructure. Without repeating the material that you've already presented, and if I can refresh my memory, I think you've described the governmental changes that bought this on. I'd like to return a little bit more to your job and your particular role that arose out of this restructure. If you could just detail to us what your tasks were after this restructure?---The tasks that were attached to my role? Some of them continued to be the same that I had been responsible for prior to maternity leave. Some of the additional tasks came into that area. At that time I was on maternity leave, so the person who acted in my position took on the additional things in my stead.
PN584
THE COMMISSIONER: Now, that was Mr Clements, was it?---Yes. I just need to - I've got a list of - - -
PN585
MR BACKWELL: Yes. What I might do is, I might just hold the rest of those questions off for when we come down to a comparison between the EO position and your own. Now, I can just simply move - what I did want to do is just see that there were additions to your role and you've answered that.
PN586
MR D'ABACO: I think what the witness has answered is those additional tasks were added once she was absent on maternity leave, Commissioner.
PN587
THE COMMISSIONER: Yes. Well, you can pursue that, Mr Backwell.
**** JANICE ROBERTSON XN MR BACKWELL
PN588
MR BACKWELL: Thank you. Now, in relation to the staff reporting. We have a statement that there was approximately between 18 and 20 staff. Could you just describe for the Commission please, what is your reporting relationship to those staff members, direct line of report or otherwise?---Prior to maternity leave I think I'd had two - divided the staff into two units with a person at the same level as myself, so I was always managing people the same - I had people at my level - also at my level. I also had the direct - a number of staff involved in projects directly to me. So I think one of the work units which was managed by staff, and allocated at that stage about four staff according to him, and I'd developed another work unit that Mr Clements' managed and that had - he had four staff reporting to him. I then had a number of specific projects reporting directly to me. A project involving the Education Department and liaising with the Education Department because of the extremely poor results that we'd obtained through the audits of children in Out of Home Care, most of them not getting on with the new agency and so forth, so we initiated liaising with the Education Department to improve the educational outcomes and the person who managed that project was also responsible for the training of the non-government sector, and as part of the eight million dollars that we received per annum for Residential Care in, I think, the 2000 budget, we'd actually allocated additional money to the training sector staff, whereas previously it had been seen as the responsibility of the provider to provide the training to initially - staff capable and with the need to a partnership approach, assumed a greater responsibility for that. Involved in the development in a set of competencies and there was a national project on at the time to review competencies and include foster care competencies in addition to residential care competencies, and also delivered, arranged for the delivery of some specific training initiatives during those 18 months to respond to particular issues. One of them was in relation to chroming, illicit habits, volatile substances by young people in Out of Home Care, and we developed a drug agency and a chroming package that was delivered to over 200 residential staff to address that issue. So that project reported specifically to me. The other project that reported specifically to me was the - was the Take Two Project, which at that stage was called the Intensive Support Services Project and that project involved the development of a model of treatment and both intensive treatment and preventative intervention for children who'd been abused and attempting to stop the potential development of more serious emotional behavioural problems further down the track, so there was a lot of, at that stage, consultation from the government agencies delivering psychiatric services, and the children in the development of a model for those services and we were also at that stage, prior to the restructure, I had responsibility of the electronic information system that collected the data on the service utilisation and so forth. So it was Foster Care utilisation, payments to foster carers, that sort of information that was in put by non-government agencies on to a database that I was responsible for and we developed and did reporting on that to look at usage against - demand against - and so forth. So that was another area that reported directly to me.
**** JANICE ROBERTSON XN MR BACKWELL
PN589
In relation to the staffing responsibilities, can you very briefly outline what that actually entails in relation to the management
of that personnel of 20 people? You've described a project overview. I'd like to suggest to you to detail what responsibilities
you have to - in the management of individual staff members?
---The staff reporting directly to me, obviously I was responsible for their work, so I was responsible for the supervision - their
supervision on those particular tasks, monitoring progress on those tasks, assisting them where required, developing performance
plans with those staff, the staff and managing staff as in those plans for their staff. I was - all written work came through me
so that was quality control, and there was also regular contact with all the staff, all the divisions and so forth that I managed.
PN590
Thank you. Now, in relation to the budget that you have overview for. Can you describe for the Commission, what does that mean in relation to having a budgetary responsibility in the position that you held?---Upon assuming the position, obviously the budget is dedicated already to certain areas and so it's - when I commenced in my role at that stage monitoring the expenditure of that and the only is actually allocated to regions within provider services. So the decisions in relation to allocation, there's a formula to allocate money to particular locations based on - it used to be the Index of Poverty and so forth, but that varies quite a bit. The new money that came in, it was - which was - the decision was made by government as to additional money. That involved initially putting up recommendations as to what money was required as part of the budget, and then developing options for .... if money was allocated as to how the money would be allocated. So for example in Residential Care it involved the - a high development of a number of proposals in relation to additional money that was required to improve their services. Then allocating a certain allowance which was less than what was initially asked for, and we had to develop a proposal as to how we would spend that money, how we would monitor that money, what we expected to achieve through that additional money and essentially, that was basically all budget responsibilities - it's not my decision as to where money goes. You simply develop recommendations and ultimately, in most cases, the decisions were made by the Minister. Some of the finer detailing was then made by the programming and the overall - - -
PN591
THE COMMISSIONER: Can I just ask you. In regard to, if there are a series of positions that are all at the same level, some might have, in that branch or division - what do you think the significance then is of people at the same level who have got different budgetary responsibilities? I mean, I assume between those different branches there was quite a range of budgets, expenditure budgets?---Some having none.
**** JANICE ROBERTSON XN MR BACKWELL
PN592
Yes, yes, sure?---Because their tasks were purely - you know, service coordination or something like that. Well, it certainly that you're constantly aware of - constantly requested to provide advice in relation to division expenditures and so forth, and also responsible for - I think greater responsibility for the quality of those services that were delivered. I mean, if there were issues with Residential Care, then it was my responsibility to develop explanations for that and provide them to my Manager, so that was an issue when there was a budgeting follow up. But there's certainly close monitoring, naturally, because it's public money, on expenditure of money.
PN593
But what do you think the relevance of it is to your career?---I think it is an issue of budget responsibilities, if it's high enough in the organisation, they've got to work with the budget that they have. That's sort of saying the public service is easier than the private sector. Budget is a particular issue, is a particular facet of management and all management have to have a sense of budget, it's a status issue of budget, in delivering services.
PN594
So in your view, would a significant change in your budget responsibility, even though there was no change in your remuneration, have been likely to have some impact on your future promotion prospects?---Well, it hadn't in the past. In that I'd had significant growth in budget without change. It is only one of the issues that's relevant to the range of competencies, but it's relevant and I'm sure, having had a large budget, would have made the position - having responsibility for a larger budget and a large range of services is something to be taken into account in assessments of positions.
PN595
The CV indicates that they've been managing areas with much less staff and much less budget?---Yes, you would have to be - you know - - -
PN596
MR BACKWELL: Thank you. I'd just like to unwind a little bit to where we were in some of the initial phase, where there were some points that came up that I felt needed further elaboration. Specifically I want to take you to December 2003 and the notice of your position being over-graded. Could you please describe to the Commission what your understanding is about what that means to be over-graded and how that letter came about?---There was, as mentioned, a review of the restructure of the Public Service classification system. I hadn't been paying a great deal of attention to it when I was returning from maternity leave. I did get some brief material forwarded to me by someone from HR. Then I received a letter in December to say that the position is over grade and my initial reading of it was that, well, I always thought the position - but apparently - it went on to say that over-grade meant that it had been translated at too high a level and so the position may need to be grow in order to justify that translation. Then I understand that there was a hearing of the Commission and then there was a process by which each individual had to go through to confirm or change the position with the Manager, and I understand that there was then a hearing in the Commission to determine with that time line that that position had to be altered, and .... to that, but it meant that people actually had to confirm that their grade, where possible, if not - if their Manager wasn't prepared to confirm them, then they had to go through that process. Within the grade that I translated to, VPS6 grade, there were two levels within that grade. There was level 1 and 2. Level 1, which is what I was translated to - - -
**** JANICE ROBERTSON XN MR BACKWELL
PN597
THE COMMISSIONER: Can we just go back to that because I don't think I've got the move from the VPS5 to the VPS6 level. Just in that traversal of the - so when - this was in December, 2003, was it?---Yes, I was at home, yes.
PN598
So what you were told was that your position - - - ?---Was over-graded.
PN599
Was over-graded. It had been translated from a VPS5 into a VPS6, Level 1?
---Yes, but apparently the - I actually - - -
PN600
But that was the result of the Public Service wide review?---And people were translating it apparently based on where they were on the salary scale. So my salary which at that time was $80,000, ended up in the VPS6 Level 1 range, which always surprised me and was an issue that I would - even though I understand it was based on salary, at the time it did appear to me to be an opportunity whereby the anomalies of my position and other positions would have been addressed, positions at my level would have been addressed, but that wasn't the case and - - -
PN601
But you were told that your hold position would then need a re-appraisal and perhaps functions injected in to it to sustain the VPS6
Level 1 level, were
you?---Yes, I think - the letter's actually there. It says - was different - the position - - -
PN602
Mr Backwell, you might be pointing me to that letter.
PN603
MR BACKWELL: Yes.
PN604
THE COMMISSIONER: Thank you?---The position may have to be grown or you may have to develop in the position. That was the exact words, I think.
PN605
MR BACKWELL: Commissioner, if I could take you to attachment 5 of the first witness statement, is a letter from Ms Haywood, Director of Human Resources, to Ms Robertson dated 22 December 2003.
PN606
THE COMMISSIONER: Yes, thanks. So that's 22 December 2003?
PN607
MR BACKWELL: Yes.
PN608
THE COMMISSIONER: I'm just going to read that, thanks. So that letter says, "There is still a need for you to have a discussion with your manager to ensure that your work value is aligned with your grade and value range descriptors." Now, "You identify a need for your job to be grown or for you to undertake development in the role. This discussion should take place by the end of February in 2004." Right. Yes.
**** JANICE ROBERTSON XN MR BACKWELL
PN609
MR BACKWELL: Now, I'd like to - - -
PN610
THE COMMISSIONER: So between that letter on 22 December 2003 and 9 January 2004 Ms Callister rang Ms Robertson, something occurred, clearly something occurred, it appears, because Ms Robertson rang you to tell you that the position was being re-classified as an Executive Officer position, is that not right?---Ms Callister rang me and she told me that. I don't think it occurred in my opinion.
PN611
No, no, but she rang you. You have that letter on 22 December and that was about the position as a VPS6 Level 1 position at that stage?---Yes.
PN612
When was it the first that you knew about it being re-classified?---9 January.
PN613
Was 9 January, as an Executive Officer position?---That's right.
PN614
So I'm just trying to understand, from both sides, how it is that a position which was thought to be over-graded as a VPS6 Level 1 position required to be re-classified as an Executive Officer position. So I'm sure I'll hear from you, Mr D'Abaco.
PN615
MR D'ABACO: Well, we indicate, Commissioner, given the thrust of your questions, the evidence and the submissions that should be led by the respondent are that there is no re-classification as a VPS6 position, that's the first premise. And the second, the issue of over-grade and so forth is a ..... which is dealt with in some detail in the witness statement of Ms Haywood, and which is something which Ms Haywood will be taking you to in her evidence.
PN616
THE COMMISSIONER: Yes, right. I'm just trying to understand this chronology, yes, thanks. Good.
PN617
MR BACKWELL: Thank you.
PN618
I'd like to take you now to, between Christmas and New Year of 2003. It says that you received a phone call from Mr David Clements. Can you recall that phone call?---Yes, Mr Clements rang me to find out my intentions, whether I'd be returning to work in March and whether I was returning - whether I'd be requesting to return full time or part time as he wanted to make a decision about whether he'd apply for other positions, from my understanding from our conversation. I think I said I wanted to stay and come back into that role. He was essentially asking me if it was my intention to return. I'd always maintained it was my intention to return on the basis that I didn't believe that I'd be permitted to return on a part time basis into that role, so I always intended to return full time to that position. I'd maintained that throughout my maternity leave, whenever I'd attended work functions and so forth, I'd always made that comment.
**** JANICE ROBERTSON XN MR BACKWELL
PN619
Did you make any mention of the pending change or what we see now as a pending change to the Executive Officer role?---No, I didn't.
PN620
Now I'd like to take you then to 9 January which we've already had in evidence that you received a phone call from Ms Callister. There is some disagreement in the witness statements, from your own and from hers, so for the Commission's attention or evidence, would you please detail to me your version of that phone call from Ms Callister of 9 January 2004?
PN621
THE COMMISSIONER: Just try and, please, as best you can recall, into the words that actually occurred in that conversation, I said, she said?---I actually was returning a call from her that she'd made earlier in the day and .... I was out that day and .... called her. She usually wasn't available so I waited, I think I spoke to Mr Clements for a few minutes and when she was available I was transferred through to her. My recollection of what she said was - we had a short conversation about Christmas and so forth and then moved into then her statement that was relevant to her position being allocated, which was prior to ..... that we'd been allocated an additional Executive Officer and we're going to be using that position to manage the other .... area. And I recall she was saying it was necessary - it's always been a complex area. It became more complex after the restructure last year and, I think, we've employed KPMG to undertake the recruitment process, at which point I said well, I had intended to return to my position, I'd made child care arrangements, booked into child care across the road from the Department and her response to that - this is a brief summary of the conversation - was, "So you'll be applying?" and I said, "Yes." And she said, "Well, I'll give your number to KPMG." She was about to go on five weeks leave, involving recreational leave and an overseas study tour. It was late on Friday. It was quite a hurried conversation. I did ask her in that conversation ..... into that position, which would seem logical to me, and she said no, there was no one that would be involved, so you need to apply through the actual process.
PN622
Did she at any time talk to you about what would happen to your position?---I did. I asked her what's happened to my position because it wasn't clear from the - what I understood from the conversation was that it was my position that it had now been re-classified, and so I said, you know, what's likely to happen to me and I think this was after I'd said that I would apply for the position but I can't say what was actually said, but she said, well, if you're not successful, you'll be found a job in head office as a Manager and that's a summary of the topic of conversation.
**** JANICE ROBERTSON XN MR BACKWELL
PN623
Did she at any stage ask you for your opinion or thoughts in relation to this decision?---No. No, she didn't. I think she did say it had always been a complex area. There wasn't an invitation to discuss it. It was just as to what was occurring and, as I said, it was a hurried conversation, it was late on Friday, she was about to attend - about to commence five weeks' leave. I didn't - I don't know, I just didn't question her about it. I wrote down notes after the conversation trying to recall exactly what was said, but there wasn't a lot of discussion about it.
PN624
In your first witness statement, attachment 7, I have here a memorandum to the Secretary seeking an approval to appoint an Executive Officer to manage Out of Home Care and Specialist Services. If I might take you to that. The first question I have of you is in relation to how did you receive this memorandum?---I made a complaint - once it became apparent to me that the position in my view was in fact the position I left on maternity leave, after I'd received the position description from KPMG, and didn't believe on this - my assessment about the position hadn't in fact in any way changed, I made a complaint to the Equal Opportunity Commission, as part of the Department's response to that, the Department provided a number of documents, including the document to which you refer, which is the request by the Division to the Secretary to provide a rationale for why an Executive Officer's position was required.
PN625
In paragraph 9 it states:
PN626
This area will continue to have a high public and sector visibility and requirements of the classification that will attract a person with the skills and competencies necessary to successfully lead this complex and sensitive area of the work. Recent recruitment action has been unable to secure a suitable person to manage this area of the work at the level currently being offered, VPS5. The VPS5 level effectively rules out the possibility of recruitment of a senior level from the service providing sector. For these reasons allocation of a Band 3 Executive Officer position is sought. Funds are available within the Community Care budget.
PN627
Is it your understanding that Executive Officer Band 3 is the issue, is the position that is in contention?---Yes, that's right.
PN628
Do you have any understandings as to the veracity of the statement of recent recruitment action has been unable to secure a suitable person?
**** JANICE ROBERTSON XN MR BACKWELL
PN629
MR D'ABACO: I'd object to that. This is a statement regarding a document of the Department and it was created at a time when this witness was on maternity leave. In my submission it would be pure speculation and can't be of any assistance to the Commission.
PN630
THE COMMISSIONER: I note it is - you're only asking her to speculate.
PN631
MR BACKWELL: If she has any information that would be of assistance, then this matter would be my question. If she does not, then I withdraw the question.
PN632
THE COMMISSIONER: Yes, all right. Do you have any concrete information on the subject, Ms Robertson?---I don't know. I didn't know there was recruitment action in relation to my position other than the recruitment action for the temporary position when I was on maternity leave, at which point one of my staff was appointed to it temporarily. There wasn't any permanent recruitment action as far as I'm aware.
PN633
That you were aware of?---Yes.
PN634
MR BACKWELL: Thank you. In the next part of examination-in-chief I'd like to move to a document that you've actually got in your supplementary witness statement which is there as exhibit 3A and with the Commission's indulgence I'd like to spend a bit of time on gaining Ms Robertson's understanding of the difference between the two jobs that we have before us. The VPS6.1 and the Executive Officer, to understand the testimonial on this exhibit it will be necessary to refer to exhibit 2 and 10 of the first witness statement. Can you confirm to me what exhibit 2 of the first witness statement is and what exhibit 10 of the first witness statement is?---No, I don't actually have them.
PN635
I have here as submitted to the Commission a document stated, Manager VPS5 Out of Home Care and Specialist Support. Are you familiar
with that
document?---Yes, that was - - -
PN636
Do you have that available with you?---Yes, I do.
PN637
Exhibit 10 is a document entitled Manager of Out of Home Care and Specialist Support Services?---The 03?
PN638
Yes, 03 Level. Commissioner, if I might take you to those two documents as well?---I don't think I do have them.
**** JANICE ROBERTSON XN MR BACKWELL
PN639
THE COMMISSIONER: So this is the document that is headed, Manager Out of Home Care and Specialist Support EO3, State Value Capped or Leave Negotiable?
PN640
MR BACKWELL: That's correct, sir. It is attachment 10 of the first witness statement and attachment 2 of the first witness statement - - -
PN641
THE COMMISSIONER: Yes, I've got that.
PN642
MR BACKWELL: Right. Now, I just want to make sure that Ms Robertson has them, because we may need to refer to the two documents. Commissioner, it might be appropriate, I will hand my copy of the matter to Ms Robertson.
PN643
THE COMMISSIONER: Yes, sure.
PN644
MR BACKWELL: Thank you. Now, the other document we need to work from for this part of the testimony is, as I mentioned earlier, exhibit 3A of the supplementary witness statement. I just want to check, sir, that you have it and also Ms Robertson has it.
PN645
THE COMMISSIONER: Yes, I do, yes.
PN646
MR BACKWELL: Yes, okay. Can I just ask you to detail to the Commission what exhibit 3A is and where does it come from?---At each point - at a number of points during the situation I've given different - a range of different reasons for the different - a different rationale for the need to change the position, the Executive Officer position, and so there was a series of reasons that some were common and some were different at various points in the process and various documents are detailed for some reason and not others and some documents - so what I tended to do was to look through all of the reasons that I'd been given and basically developed it to include all the reasons I was given and compare them across the two positions so - - -
PN647
THE COMMISSIONER: So this exhibit 3A, that's your work, is it?---That's my work and it's an amalgam of a number of documents and they included reasons for the position change.
PN648
MR BACKWELL: Excuse me, sir. We do have a little bit of a problem in relation to which ones we're talking to. I may have referred you to the wrong one. I beg your pardon, sir, it's in fact exhibit 3, not 3A. Exhibit 3A is a Freedom of Information excerpt. Exhibit 3 is the table that - - -
**** JANICE ROBERTSON XN MR BACKWELL
PN649
THE COMMISSIONER: Thanks. Yes, they're quite different documents.
PN650
MR BACKWELL: So this is your - - -
PN651
THE COMMISSIONER: So it's exhibit 3 of - - -
PN652
MR BACKWELL: Yes. So this is your document and you've created it - why did you create it - I think you've already said that, I beg your pardon. You created this to make some form of notes of comparison yourself. I'd like to be able to start to unpick some of the elements of this exhibit. You've detailed to us what Take Two is. Could you please detail the responsibilities that you had in relation to Take Two?---Take Two was specifically mentioned in the position description of Executive Officer position, so it seemed to have a great deal of priority in terms of the role. As I've already mentioned Take Two was in fact was treated as an ITS project which was an Intensive Therapeutic Services Project, and it was a project that I had been involved in and managed from 1999 and it involved the development of a service e model to provide counselling and treatment specifically to departmental clients, clients of the Child Protection Program, to respond to their experiences of trauma arising from abuse and neglect and the need for that service was identified in a previous report that had been prepared by consultants which looked at some of the most difficult and complex cases in the State and concluded that they hadn't had adequate intervention at an earlier stage and that that intervention may have in fact led to a better outcome. So that was the project that arose from that. There was some commitment that the actual previous government agreed to to fund that. That then changed and so at the time, for most of the period of that project, we had a project and certainly a proposal but not any funding for it. So we only granted funding, I think, in 2002. So essentially once consultants finished their initial report we then employed a person to work specifically on that project and we developed a model based on quite a bit of research and when I was travelling in Canada in 1999 my manager at the time, made an arrangement for me to attend a service in Vancouver which was ultimately called the ..... Service which significantly reformed the model that we ended up delivering, but it was quite a contentious model in that normally when we get additional money we allocate it to regions and regions decide how to spend it. In this instance we actually decided that we would keep the money as a whole and develop up a new service entirely and that's what eventually occurred. As a point - when I was on maternity leave, we had just finished the tendering process, so it was put out to tender, there was - we interviewed a number of potential providers and agencies which had got together to put in a joint tender and the decision had been made prior to me going on maternity leave as to who would receive the funding. The approval had been given by the Minister. We had to prepare a brief to the Minister asking that - providing an overview of the funding process and seek her approval to allocate funding and at the point that I went on maternity leave, the contract was being negotiated with the service and the service targets and so forth were being negotiated. When implementation commenced beyond that while I was on maternity leave. When I returned from maternity leave I recommenced - chaired an Information Reference Group which was still in operation, which had been chaired by the person acting in my role whilst I was away.
**** JANICE ROBERTSON XN MR BACKWELL
PN653
Now, you're familiar obviously with the VPS5 which of course as we know became VPS Level 6.1, position description, and you're familiar with the EO position. What difference do you see between the roles in relation to Take Two in both position descriptions?---I don't believe there is any difference. The person who is now in the EO3 role is continuing to chair the reference group.
PN654
THE COMMISSIONER: Can I just say, Mr Backwell, that I've read that whole document. So it appears manifest to me that Ms Robertson's assessment is that there really is virtually no difference between the VPS5 position which she was doing and the position as reclassified to an EO3 level position. I would have thought that's - I don't think you need to lead me through, just from the point of Ms Robertson's view of the matter, it's very much a matter for cross-examination and evidence from the Department, but it's clear to me what the document says.
PN655
MR BACKWELL: Very good, Commissioner. Then I will conclude at this part with simple questions.
PN656
Which parts of the EO position description and the VPS position description do you believe are different?---In terms of the type of responsibilities, the primary difference would probably be the participation in the ..... which - - -
PN657
THE COMMISSIONER: Which involves?---Which involves the Executive Officers.
PN658
Yes, which involves going to meeting how often?---I think it's weekly and the Executive Director ..... feedback from the ..... Secretary and .....
PN659
MR BACKWELL: Any other differences that you see?
PN660
THE COMMISSIONER: Well, if I could just ask about the Administerial Advisory Committee. You say, "This was established during the time I was on maternity leave. The person acting in my role attended these meetings on my behalf whilst I was on maternity leave. I actually recommenced attending these meetings when I returned to work, although Ms Callister refused to provide me with any of the relevant papers. Membership duties are unchanged whether VPS5 or EO3." I wonder whether what you actually mean is that - whether that really what you're saying is that this hadn't been part of your duties before you went on leave?---No. It was - it came out of - - -
**** JANICE ROBERTSON XN MR BACKWELL
PN661
It was an add-on?---It was an add-on to my role, to the Manager position, it was an add-on to that.
PN662
What was involved in it?---The Committee had its own Secretariat, it had its own ..... who reported directly to the Director at that stage and then when Ms Callister moved into the position of Executive Director that person then continued to report to - so the administrative functions were undertaken by that position. It could be Executive Officer ..... The agenda, I only ever attended one meeting - - -
PN663
How often did that meet?---I think - there was another - - -
PN664
Quarterly or - - - ?---Out of, sort of, there was extraordinary meetings as well. The meeting that I attended was an extraordinary meeting to discuss legislative amendments. I think beyond that, I think that they met monthly, if not less. There was a sub-committee to that - - -
PN665
So you think monthly at the most?---Yes. Yes, and then there were a number of sub-committees, so there was a sub-committee meeting to set the agenda in which - the agenda sub-committee meeting and there was an agenda seating sub-committee and then there was also a, I think a community education sub-committee which I actually attended and I attended the agenda setting sub-committee as well, so that committee actually covers, not just placement support area. It covers all of these program areas under Community Care so it includes Early Childhood Services.
PN666
Yes, sure.
PN667
MR BACKWELL: Thank you, sir. What percentage then of these additional tasks do you believe, from your experience, as having conducted primary - in your belief primarily conducted this role, what percentage would you say these new tasks would be?---The Ministry Advisory Committee actually replaced a previous committee that I had been involved with before I went on maternity leave which was reporting to the Minister and if that involved - they developed - there was a discussion paper developed from that and I think the Ministerial Advisory Committee came about as a consequence of that, so that was effectively the replacement of one committee with another committee.
PN668
THE COMMISSIONER: So it was a sort of re-badging exercise?---The initial committee that was meeting with the Minister was purely in relation to Placement Support Services and it arose after there were issues raised in relation to chroming and the Premier had made some comments, and so that was that committee. The establishment of the Ministerial Advisory Committee had been a pre-election promise from the Labour government prior to the election of 1999 that they would establish a committee. It actually didn't occur until 2003, but it had always been anticipated and there was quite a bit of agitation by the new government as to when the committee was to be established.
**** JANICE ROBERTSON XN MR BACKWELL
PN669
MR BACKWELL: Have you ever acted in the role of an Executive Officer through your career in the Public Service?---Yes, I've acted as the - when I was in Juvenile Justice I acted in - my Manager's role - at that stage they were called the Director because Juvenile Justice was a separate branch, for a week or two weeks while he was on rec leave. When I returned to Child Protection Branch I acted for a number of weeks at different times in the position of Manager, Child Protection. I acted in the position of Director at one stage when the Director was on leave. I was asked to - when the position became vacant, when someone left the position of Manager, Juvenile Justice and I was asked to go and act in that position ..... process ..... which I declined at the time because I was wanting to stay in the work I was doing, so.
PN670
Now, I your annexure it says quite a number of Freedom of Information -documents that have arisen from a Freedom of Information Act application. I don't wish to quiz you on them greatly, that's for others, but I do wish to introduce them into evidence and to describe how they've got here to give them some form of veracity. Would you please describe the process that you undertook to gain the documents that are there with the Freedom of Information stamp on them?---The initial - the document that was discussed earlier ..... Secretary in relation to the creation of my position, the copy that I received was never dated or signed and it was always a mystery to us as to when the decision had been made in relation to the creation of the position and they didn't appear to be able to get an answer on that and I felt it was relevant to the whole situation, so I did ask for a signed, dated copy but ..... the copies that were on record were always unsigned, undated, so it was as a consequence of that that I actually felt it was important to at least be clear about the dates as to when things occurred, and that led to my Freedom of Information request, and the request, the Freedom of Information helped ..... what was the question.
PN671
I'd like now to take you to the process of applying for the EO position. Now, there is some contention between your witness statement and other witness statements as to the process that occurred during that time. I'd like, if we could please, for you to inform the Commission of the process that occurred in relation to applying for the Executive Officer position?---I received the position description from KPMG and at that point I know - it was my belief that it was the same position. I continued with my application. I had a meeting, I understand it was a meeting to decide whether I was going to be short listed for the position, so I had that meeting with KPMG.
**** JANICE ROBERTSON XN MR BACKWELL
PN672
THE COMMISSIONER: Who was that with? You were short listed, I take
it?---Yes, I was short listed. Yes, basically my curriculum ..... and what my history was. It was only one person, so it was more
of a discussion rather than
a - - -
PN673
Right?---At that - by that stage I had put in a grievance about the process and then decided to make a complaint to the Equal Opportunity Commission and I think, I was always unsure as to whether in fact I should attend the interview given my claim, that it was in fact a new position. I was then told by the union there'd been other indications, 12 months earlier, and I actually know the person who was involved in that.
PN674
MR D'ABACO: I object to this evidence. It was the subject of the witness statement and there was an agreement between the parties that this evidence would not be led.
PN675
THE COMMISSIONER: Yes, Mr Backwell?
PN676
MR BACKWELL: No. We may have a difference of approach here. What I have agreed to with my learned friend is that we will not be leading evidence in relation to the adherence to or otherwise of the change of implementation clause of this agreement, the VPS 2004 agreement.
PN677
THE COMMISSIONER: Mr Backwell, do you and Mr D'Abaco want to have a little talk abut that? We'll adjourn for a few minutes and you and Mr D'Abaco can have a little talk about what it is you've agreed or not agreed about. I'll only make the comment that I'm not sure how references to other people, what's happened with other people, how useful that is actually going to be.
PN678
MR BACKWELL: Okay. It looks like we might have a difference of where we are, anyway. Perhaps if we could just adjourn for a few minutes.
PN679
THE COMMISSIONER: Yes, we'll adjourn for a few moments, thanks very much. We'll now adjourn.
<SHORT ADJOURNMENT [12.10PM]
<RESUMED [12.17PM]
PN680
THE COMMISSIONER: Yes, Ms Robertson, how are you doing, are you okay? Yes, I suddenly realised you'd been there for quite some time so I probably needed to break. Yes, Mr Backwell?
**** JANICE ROBERTSON XN MR BACKWELL
PN681
MR BACKWELL: Thank you, Commissioner. I think we'll be able to finish before lunch time with examination-in-chief.
PN682
THE COMMISSIONER: All right. Sorry, where have you two gentlemen got up to in your disagreement?
PN683
MR BACKWELL: In relation to that, yes, it was actually - I did have the wrong end of the stick. What I'd like to now get Ms Robertson to do is to continue with the discussions about the process in relation to attending the Executive Officer interviews but not to lead into issues which we have withdrawn which is in relation to another grievance of another person within the Department. It was previously included in 32 through to 34 and that was what my friend's objection was.
PN684
THE COMMISSIONER: Yes, I'll be most grateful for that because there's quite enough in this case without my actually trying to focus on somebody else's case.
PN685
MR BACKWELL: Indeed, thank you.
PN686
So Ms Robertson, if I could ask you to continue to outline the procedure that you went through in relation to attending interviews in the selection process for the Executive Officer position?---There was the process in relation to interviews, but there was also a number of other things that were occurring simultaneously which was my attempt to gain clarity about whether in fact I should be applying for the position and so forth, so I did attempt to - Ms Callister said to me on the Friday that we spoke that if I had any questions in her absence to contact either Human Resources or Mr Jim Giannakos from Human Resources or Mary McKinnon who would be acting in her role in her absence, and I actually spoke to Mr Giannakos on the Monday after a phone call from Ms Callister to get some clarity in relation to the position. He actually told me at that point that my position still existed, that wasn't my position that Ms Callister referred to, and that I was - I think I was trying to determine what I would be going back to. I didn't have - - -
PN687
MR D'ABACO: I'm sorry, there have been two witness statements filed on behalf of the applicant and this is the first time that any reference is made to a Mr Giannakos in any other evidence and it really does indicate that this matter will not conclude if what we have is the introduction of new evidence. I need to take instructions on that and potentially other witnesses may need to be called. This is the first time any mention has been made of Mr Giannakos.
**** JANICE ROBERTSON XN MR BACKWELL
PN688
THE COMMISSIONER: Yes, Mr Backwell?
PN689
MR BACKWELL: If I could just take one moment to confer, sir, on the reference to Mr Giannakos.
PN690
THE COMMISSIONER: Yes.
PN691
MR BACKWELL: Can I just confirm again who Mr Giannakos is?---It was a name given to me by Ms Callister to contact in her absence. If I had any questions in relation to what was occurring.
PN692
I'm not too sure, sir, how this disadvantages the other side's position.
PN693
THE COMMISSIONER: Well, Mr D'Abaco's point is only he doesn't know and he'll need to seek further instructions on the subject. I think perhaps, Mr Backwell, I don't want to give you a direction about this. Rather, it's a case of how important is this particular conversation. Sorry, I'm just going to adjourn for a moment and I'm going to go out and I'm going to let you have your conversation with your counsel, okay.
PN694
MR D'ABACO: Just before we do that, Commissioner, I don't want to - I just noted that it appears that the witness does refer to such a discussion in paragraph 30 of her statement and there's certainly no reference to Mr Giannakos. She has now clarified that he was the HR representative, but I think the objection still stands, before we go through this process. It's going to lengthen the proceeding, I'm sure.
PN695
THE COMMISSIONER: That's all right. I'm going to adjourn and just let you have that conversation, thanks.
<SHORT ADJOURNMENT [12.22PM]
<RESUMED [12.24PM]
PN696
THE COMMISSIONER: Good, Mr Backwell, how did you go?
PN697
MR BACKWELL: Yes, sir, we'll just simply continue without the reference to Mr Giannakos.
PN698
THE COMMISSIONER: Yes, that occurred to me as being one solution. Can you just recall where you were? You're talking about the HR - - - ?---So I don't use the name of that - - -
**** JANICE ROBERTSON XN MR BACKWELL
PN699
Yes, you're talking about the HR rep because that's how you've spoken about him in your witness statement and it's of no relevance - I doubt it's of any relevance to me at all and I won't be able to spell it properly?---It was - the comment - so I did contact on the Monday after I spoke to Ms Callister because thinking about it further over the weekend I realised I still had some questions and I was somewhat confused about it. So I rang the HR person to whom she referred and spoke to him and his response was - I was trying to clarify what my situation was. At that stage I knew it would be difficult to go to a selection process, being home, not being in the workforce, even preparing it would be quite difficult. So it wasn't something that I was - if I could avoid doing that and return to my position, then that would have been my preference, and his advice to me was that it's not your position that Ms Callister was talking to you about. It's another position. Your position still exists, which was different to what Ms Callister had told me, so at that point - - -
PN700
THE COMMISSIONER: But that was a fairly - did he go into any detail? It sounds like that was a fairly superficial comment?---To be perfectly honest, I don't think he knew, I don't think he had further detail. He had been consulted in relation to the, I understand, the creation of the Executive Officer position. I don't think he had a lot of knowledge about the current situation and my position, so I don't think he was able to assist.
PN701
So you understand that that was the level at which you were having a conversation?---So, it wasn't very long and I remained confused.
PN702
Uncertain, yes?---I then spoke - - -
PN703
Which I could well and truly understand?---I then spoke to Mary McKinnon who Ms Callister referred to, after the position was advertised, just to express how ..... position advertised in the paper without any forewarning of that, people who I knew had commented to me, so you're not going back to work, because they'd seen the position advertised and so forth, and I hadn't heard from KPMG. So I spoke to Ms McKinnon after that and - - -
PN704
Because Ms Callister was still away at this stage?---She was away at that stage and Ms McKinnon again reiterated that it wasn't my position. My position still existed, which again was contradictory to what Ms Callister had told me, so the conversation I then had was - what I said to her was my understanding that the position, or my duties and responsibilities, so my position must no longer exist if that's in fact what's occurring, and she undertook - she hadn't looked at the position description at that point, so she undertook to compare them and ring me back and I never heard from her. I emailed her again to say would you please ring me back and let me know what's come out of your assessment, but she didn't get back to me about that. So throughout those months, I continued to be a bit confused about whether my position did exist or not and whether in fact there was a new position that had come over the top of my position, that my position was - it didn't seem logical that - certainly from what seemed to have been said by a couple of people at least. So that all was - it was difficult to know then whether to go through the application process, so I did continue to submitting my application to KPMG and attending the first discussion with them. It was difficult to, given - it was difficult to know given the claim that I was now making that it was my position, whether I should in fact attend the second interview. I understood that that in the past had been considered to be evidence that it wasn't my position - - -
**** JANICE ROBERTSON XN MR BACKWELL
PN705
MR D'ABACO: I've already objected to this.
PN706
THE COMMISSIONER: Yes. You don't need to just pursue that. But you just - I don't now how relevant it's really going to be to my finding?---The only - it was one of the factors that influenced my decision not to attend the second interview. That's the only relevance.
PN707
Right, right?---Different people advised me differently as to whether to attend the second interview or not and what would be the implications if I did. I didn't know whether I should or not, whether it would be the right thing to do or not, given what my claim was.
PN708
If I just seek to understand, Mr Backwell, Ms Robertson's claim is to be entitled to the enforcement of the provisions of the agreement.
PN709
MR BACKWELL: Yes, sir.
PN710
THE COMMISSIONER: Mr D'Abaco, is that not right?
PN711
MR D'ABACO: It's my understanding, yes.
PN712
THE COMMISSIONER: Yes, that's right.
PN713
MR BACKWELL: In the later part of this case I will present why this evidence is relevant to - - -
PN714
THE COMMISSIONER: Yes, that's fine, but I think what Ms Robertson is saying is that she was not - in not applying for the EO3 position, she was not withdrawing from her claim to be entitled to the benefit of the return to duties provisions of the agreement, yes. I understand the witness, yes.
PN715
MR BACKWELL: So really now we really just need to finish. The process that occurred in relation to your selection and if that's where we are now, then that's where we can conclude that part?---Okay. I returned to work on 29 March and at that stage, at the interview time KPMG had contacted me for a second round interview when I was on maternity leave and they actually said, can you come in tonight for an interview, which I couldn't do under the circumstances.
PN716
THE COMMISSIONER: Sure?---And they also offered me a time for the following week which I actually had mentioned I was interstate that week, and it would have ended up being the week before I went back to work. So they reset the - scheduled another interview for me and notified me in writing, notified - sent a letter to my home while I was away advising me that another interview time had been set for the following week.
**** JANICE ROBERTSON XN MR BACKWELL
PN717
Was that the week you returned to work?---The week I returned, yes. And so what I did was - I think I might need a break.
PN718
Yes, that's fine, we're just going to have a break. Thanks, I now adjourn.
<LUNCHEON ADJOURNMENT [12.31PM]
<RESUMED [2.01PM]
PN719
THE COMMISSIONER: Good. Thanks very much. Mr Backwell?
PN720
MR BACKWELL: Thank you, Commissioner, and thank you for extending that time for us.
PN721
THE COMMISSIONER: That’s fine. I’m happy to start at 9.30 tomorrow and Wednesday, if that’s of assistance to the parties? Anyway, you and Mr D’Abaco will tell me if you need that extra time tomorrow.
PN722
MR BACKWELL: I will confer with my friend.
PN723
THE COMMISSIONER: Good. Thanks very much.
PN724
MR BACKWELL: We were at the position of looking at the selection process and we’re almost concluded on that. If I might just take you back to where we were. Would it be possible, sir, if we could even just have the last sentence or so read from transcript? Then, Commissioner, so that we know my pathway from here, it will be to have some questions in relation to statements that are in the witness statement in relation to the return to work and the requirement, and then I will conclude with some discussion about the other jobs that have been offered, and that will conclude examination-in-chief.
PN725
THE COMMISSIONER: Yes. Thank you.
PN726
MR BACKWELL: Commissioner, we can confirm that 9.30 is okay.
PN727
THE COMMISSIONER: If you will just discuss with Mr D’Abaco as well?
PN728
THE COMMISSIONER: The last sentence he wanted. The last couple of sentences?
PN729
MR BACKWELL: Yes.
**** JANICE ROBERTSON XN MR BACKWELL
TAPE PLAYED
PN730
MR BACKWELL: Thanks very much.
PN731
So we’re in the position of explaining why you didn’t attend at the second interview. From my recollection of your witness statement, that should then conclude the selection process. The next step in that is that you were informed that you were not successful. Is that correct?---Yes.
PN732
Over the break, I just had an opportunity to review a couple of matters and there was one specific thing that I did wish to put to
you, which was in relation to some of the work that you did in your VPS6.1 position, which is in relation to quality monitoring and
assurance systems. Are you familiar with what I am alluding to?
---Yes.
PN733
Can you explain what that is?---Essentially, the monitoring of the services that are delivered, in a sense, is probably one of the
core responsibilities of the role, in addition to defining and pricing and allocating resources. Then the other fundamental part
of the role is to ensure that what you’re actually funding is delivered in accordance with standards and any other benchmarks
that may exist in relation to quality, and given the previous - the approach of the previous government to have most services provided
as a purchase and provider service, the - one of the fundamentals of that approach was to leave quality issues very much to be defined
by the provider, and clearly once there was a change from that approach, the whole issue of service standards became much more fundamental
to the role in which I was involved, service standards being probably the initial threshold issue in relation to quality assurance.
So we actually - throughout my time in that role, one of the other critical issues in relation to - in addition to the developing
different funding models was to develop the update and up - and improve the quality assurance and quality improvement aspects of
service. And the standards in relation to residential care were I think probably at least 10 years old. The standards in relation
to foster care dated back to 1984 and I don’t know if there were any standards in relation to kinship care, which was the other
major form of care funded by the Department. So, the standards are the first step, in terms of defining what you actually want the
service to deliver and at what level. The next step is, I guess, to set - there’s often an additional aspect which is to develop
targets that you’re actually requiring those services to meet, that are above and beyond the standards and that also relate
to quality indicators. For example, one of the targets in relation to residential care was a reduction in the number of under 12-year
olds in residential care, because residential care is not considered to be an appropriate form of care for children. So as part
of the whole strategy we developed, called the “Regional Service Improvement Plan”, which was in response to the outcomes
of some of the audits, which were very bad, we actually developed a whole set of targets and indicators that we needed, that we would
monitor the services against over time to see - to monitor improvement.
So - - -
**** JANICE ROBERTSON XN MR BACKWELL
PN734
It sounds to me - - -?---Sorry.
PN735
- - - that you have been extensively involved in this particular part of the work?
---It’s a - it’s a core and ongoing part of the work. It doesn’t just come up as projects. It’s actually
a fundamental part of the work.
PN736
Yes, thank you. I’d like to take you now to the time that you returned to the workplace and to describe to me the environment
that you found on your return?
---In spite of the issues with the position and so forth, my intention was to go back and resume my role, for however long that may
be, as - as normal and the other - the other issues, I guess, would play out over the coming few weeks, but it became apparent to
me when I first returned that that was going - it was going to be very difficult for that to occur and that is because when I first
returned, I would - I expected to meet with Ms Callister to discuss the work that was required. After two days, she hadn’t
arranged a time to meet with me, so I did that with her assistant, to sit down and talk about particular priorities that I needed
to get across in the short term. In fact, Ms Callister only really spoke to me in passing during those - those few days. She was
cordial and polite, but she never engaged in discussion with me. It was - it was always either hello as she walked past or welcome
back as she walked past. There was never any engagement. Also on the second day, I received an email from Ms Callister that was
sent to both Mr Clements and myself, advising that - that Mr Hall, who was at that stage acting as the executive director, had requested
the data clinics be reassigned temporarily to assist the new re-appointed children’s advocate and - and Ms Callister sent the
email to both myself and Mr Clements, saying she thought this was a good idea. Because I knew Mr Clements was really not happy about
returning to his role, which he had said to me, and other work was obviously important, I responded saying it was - probably enjoy
the opportunity, but I also at the same time didn’t feel I had any - I mean, the advice had been given to us simultaneously.
I don’t think I was really being asked whether that would occur. Mr Clements knew that Ms Callister had asked for that to
occur. It wasn’t - she wasn’t just consulting with me about it, and so Mr Clements then, the next day, told me that
he would be leaving that day to work with the advocate for a few weeks and - and that he was then - he was also taking the quality
assurance project which he’d been working on, a particular approach to quality assurance, he would be taking that with him
and managing that from his - the other position that he was - he was in. Which I was very surprised at, given that being that was
such a fundamental issue attached to my area and one of the other staff members was also working on it and she would continue in
my area, but would be reporting to him in a different area. So I actually felt that that was work that was being reassigned from
my area without any consultation with me and - - -
**** JANICE ROBERTSON XN MR BACKWELL
PN737
Did - - -?--- - - - I hadn’t been aware of that ever happening before.
PN738
Were you aware of where this re-assignation of work had arisen from? Was it Mr Clements’ motion or was it directed to him by someone else?---I was - I don’t know whose idea it was. On the third day after return back to work, I went to - I was called to a meeting by one of the other managers who was chairing a meeting, Ms Mary McKinnon, and in my diary as meeting to discuss staffing issues and I attended there with another four people at my level and it quickly became apparent that the meeting was to discuss how to deal with people returning from long periods of leave and maternity leave was given - that was given as the example, and what you should do with them when their position no longer existed and I was - there through that meeting, going to discussing how they should perhaps circulate names of people around and so forth. And the other managers may not have been aware of my situation, although I think they would have some awareness, but Ms McKinnon was certainly aware of it. She was aware that - of what was happening and that I’d been very upset by what was happening. And that was supposed to be a meeting that was neutral and I was feeling distressed.
PN739
But your position wasn’t discussed, as such? Is that right?---No, but people who were taking maternity leave were.
PN740
Yes?---Yes. And - - -
PN741
THE COMMISSIONER: Can I just ask you further on that point, I mean, did you think this was directed to you personally or - I mean, are you suggesting they shouldn’t have been discussing that issue? I mean, it must be an issue that must have to be discussed at management meetings - - -?---Yes, yes.
PN742
- - - presumably, from time to time?---It was probably more - under normal circumstances, under most circumstances, it wouldn’t have been a problem. I just think there should have been some sensitivity - - -
PN743
It was that you felt distressed about it because of the situation that you were in - - - ?---That I was in and - - -
PN744
- - - and you felt Ms McKinnon ought to have realised that, is that right?---Yes. And under most circumstances, it wouldn’t have been an issue and it is an issue that would need to be discussed. It was just more the - one of many things that occurred that I found difficult.
**** JANICE ROBERTSON XN MR BACKWELL
PN745
MR BACKWELL: In relation to other duties that were part of your role prior to maternity leave, and on return, were there any other differences in the duties that were assigned to you, or that were allocated to other staff members on your return?---There was an initiative that had been funded in the budget of that - of 2004, which was the - an increase in payment to foster carers and what I was briefed to do by Ms McKinnon after Ms Callister had been reassigned was develop a range of options in the minister’s considerations as to how we would allocate that money to foster carers in the most efficient manner, so that foster carers were able to - basically it was to cover the additional costs of caring for children; medical bills and so forth. We commenced work on that. We had a consultation meeting with the Foster Care Association of Victoria to get their input and about a few days after that, I was in a management meeting and was told that that work had been reassigned to someone else in the branch who was now going to take responsibility for that. Which the other person who it was assigned to was always responsible for overseeing the implementation of budget initiatives, but not - in most instances, not to actually do the work, and take too, as an example of that, we would always have to report to him on whether we were meeting timelines and deadlines and so forth, but the actual - actual content of the work was done by the - was done by the various groups within the organisation, so - but in fact, in this instance, quite unusually, he was taking - he was going to be doing the content work rather than - than me, and that went back to my area after I was removed from my role, so it was temporarily reassigned and then taken back.
PN746
So I just need to get this clear; you’re alleging that there were tasks that you had, that they were then removed, but then when you left again, they were reassigned to that particular function?---That’s correct. The quality assurance project came back and the foster care initiative came back and I’m not sure whether Mr Clements attends the ministerial advisory committee; I’m assuming he does. As seen in my witness statement, I was also told that I wasn’t to attend - well, that I didn’t need to attend those meetings.
PN747
All right. In your witness statement, you have actually made a number of serious allegations in relation to victimisation and bullying. What is the substance of that, as allegations, or why have you made such serious allegations in relation to Ms Callister?---The - basically, the examples that I’ve given, that the context of what was occurring is relevant. If any single one of those incidents had occurred and the context had have been different, I don’t think it was actually probably - would have been considered by me to be - to be so distressing and upsetting, but in combination, and Ms Callister not engaging with me, not making a time to meet with me, staff data clinics being reassigned, tasks that were considered to be important reassigned, told not to attend the ministerial advisory committee, having to attend the meeting that was in relation to people returning from leave, I mean, it was all of those things that made it difficult. If any one single thing had occurred, it would have been different, if the context had have been different, but it was a combination and - - -
**** JANICE ROBERTSON XN MR BACKWELL
PN748
THE COMMISSIONER: Can I just ask, what had your relationship with Ms Callister been up until 9 July 2004?---It had always been a cordial and professional relationship. There was no - - -
PN749
So you’d had no previous encounter with her that would have caused you to imagine that you had some problem with her?---No. I mean, we’d had - disagreed on particular issues at various times. I couldn’t even think of one, but - one that would - but she was my manager.
PN750
Yes?---There’d never been any particular issues.
PN751
So you’re not aware that you had any issue with Ms Callister up until
9 January 2004?---Yes, and even then - and her initial - why I was upset by having to go through this process and I felt it would
be difficult to have from home applied for the position and so forth, it - I did take what she said at face value, that there had
been changes, that my job had changed.
PN752
Yes, and as you said, you knew she was about to in fact go off overseas for a reasonable period of time, so she was - I mean, you knew she wasn’t even going to be around for you to talk to for some period of time, or indeed, as far as you would have been aware, she wouldn’t have had any direct involvement with anything to do with your job for the period that she’d be away?---No. No, that’s right.
PN753
That would have been your understanding of the situation?---That - that was - yes.
PN754
Is that not right?---Yes.
PN755
So when did you first begin to feel you had a problem with Ms Callister? Before 29 March?---I think it probably - probably - it initially - what I actually felt, some degree of unhappiness with how I’d responded was in the first telephone call that I had with Ms McKinnon when - when at that stage, the union had contacted - - -
PN756
That was a few weeks later?---That was a few weeks, yes, after the - - -
PN757
Yes, yes?---And there seemed to be mild irritation that they were being - that I was questioning the process, but it wasn’t - you know, they - - -
PN758
Yes?---Then when I put in my grievance and in the meantime, Ms Callister returned to Melbourne from being away, and I didn’t hear from her and the next - which I would have expected, if I’d got things so wrong, if I’d misunderstood things so much, that she would have perhaps called me and said, “This is - you’ve got this wrong” but then there was the response to the grievance where it was, “This is not your job” underlined. Then that would have been - - -
**** JANICE ROBERTSON XN MR BACKWELL
PN759
Sorry, I’m just trying to pinpoint a date. Is that before you came back, on 29 March?---That was before I came back. That was in February.
PN760
Right. So what was your perception of your interaction with Ms Callister after you came back on 29 March?---My perception was that I wasn’t - she wasn’t going to engage with me any more than she had to, that - I don’t know the motivation for that, but it was not, welcome back. Let’s sit down and discuss what needs to happen. It was just - she was cordial, “Hello, welcome back”.
PN761
So she was polite and cordial?---Yes. Yes, there wasn’t any - then when I actually had a direct meeting with her and a few months - in May, I think - - -
PN762
This is when you were actually - sorry, there’s a question I need to ask. When you came back and you came into your manager’s position, were you then acting at the EO3 level? You were being paid the VPS6 level 1 level?---I was - no. I was paid at the same level - when David Clements was put into the acting, he was paid at the higher level.
PN763
Right, okay. So I’m just wondering about the point at which you really felt you had a problem with Ms Callister. That’s - - -?---It was probably crystallised in that first few days back and - - -
PN764
After 29 March?---Yes. I think - if we had - - -
PN765
Notwithstanding that she was cordial and polite to you?---That that was usually as she walked past me. There wasn’t any attempt to engage with me, to meet with me to discuss - - -
PN766
Your issues? Yes?---Well, to discuss my work. I mean, we could meet the issues to decide and still - it was urgently important to me to discuss my work and - and that was - I don’t think we’ve had any difficulty doing that whatsoever, irrespective of the other issues, and complete them to - - -
PN767
Yes, right. Thanks.
PN768
MR BACKWELL: Thank you, sir.
PN769
So there was no - so to summarise, just to confirm for my mind, maybe it was sushi at lunch, so there was no meeting on return, between yourself as the senior manager in the area with your direct line manager?---Her - her assistant made it - I went to her on the Tuesday - no, about 6 o’clock and just said, “Look, can you make a time with me to meet with Ms Callister because I need to meet with her to find out what I need to be prioritising”, and she made a time for the Thursday and I - after the Wednesday, I actually didn’t - I actually took sick leave after the Wednesday, so I didn’t make that meeting.
**** JANICE ROBERTSON XN MR BACKWELL
PN770
In relation to sick leave, it appears in your witness statement that eventually you and Ms Callister did meet and did discuss about sick leave and that she was concerned about you taking that sick leave, if I’m correct. Could you detail that for us?---When I returned to work after sick leave, which was - it was after Easter, I actually had a letter from my doctor at that stage saying that I was suffering from work-related stress and anxiety, which I provided to Ms Callister, and she then called a meeting with me and I met with her and a representative from the human resources branch attended and at that stage she - she said the meeting was for the purposes of discussing my work and well-being, and at that meeting, Ms Callister made the comment that I’d taken sick leave without making arrangements in relation to my - to getting my work completed on - - -
PN771
THE COMMISSIONER: Well, you were actually only just back in the office at that stage?---Yes, yes.
PN772
Is that not right?---Yes, and Mr Clements actually came back - - -
PN773
Easter that year was - - -?---Late.
PN774
It was late?---Yes.
PN775
Late in April?---April, yes.
PN776
You came back to work on 29 March, so how soon after that did you go off on sick leave?---I went on sick leave, I think, on 1 April.
PN777
So it was two days after - - -?---I came back - I was back for three days.
PN778
Right?---But I - - -
PN779
Yes, all right?---I wanted to come back - - -
PN780
MR BACKWELL: There is some discussion in your witness statement, in the fact that Ms Callister demanded a second opinion in relation to your doctor’s certificate?---The doctor’s certificate hadn’t been clear that I was - the doctor’s certificate had said that - that - had not stated that I was fit for normal duties and the things that I’d been - if I was interviewed at that time, I would probably not be performing very well, given - but that I was fit for normal duties, so Ms Callister wanted that clarified.
**** JANICE ROBERTSON XN MR BACKWELL
PN781
These feelings of victimisation, of bullying, to use the word, to whom did you report them to, if anybody?---I actually spoke to the equity officer from the human resources branch, Anne Henderson, who - and I was advised to do that by the person from the Equal Opportunity Commission because I rang them and spoke to them about it and they said you should report - discuss it internally, so I spoke to - to Ms Henderson, and it was only after that that - and Ms Haywood called me to a meeting with her and I went to talk to Ms Haywood, who is the director of human resources, and explained to her what had been happening and - and I recounted the situation that had occurred in relation to the meeting which - and the other few issues, the fact that I’d been - not given papers for a meeting that I attended and it was humiliating and embarrassing and the other things that had occurred, in terms of work being reassigned, and I told her. Ms Haywood was probably I need - she said to me probably only interested in moving forward, going - and getting - and just raised the issue of changing the interview panel, whether that would - and would I be prepared to go for an interview if they - if she asked Ms Callister to step down from the panel because it was during all of the - this time I was supposed to be - was supposed to attend an interview and Ms Haywood suggested that that might be a way to move the situation forward, to - for me to attend an interview without Ms Callister on the panel and when I met with Ms Callister, she - one of the first things she said, if not the first thing when I attended the meeting, was that HR had advised her that she couldn’t stand down from the panel, so that was the end of that, in my recollection.
PN782
So was any - - -?---But it still wasn’t the major issue, but it was - the interview panel was not the major issue.
PN783
So other than the meeting you had with Ms Haywood, was there any other action that was taken by the Department in relation to your allegations?---No. My partner actually rang the - as well and spoke to someone - what had happened as well, but nothing happened.
PN784
So no other correspondence, no other - any other engagement with you on that issue?---No. All I was really requesting was that someone consider what had happened and let me know whether in fact - I mean, at that stage, I was feeling fairly terrible and whether what was happening was appropriate, in terms of the treatment - well - - -
PN785
Okay. Thank you for going through what must have been a very difficult time for you. Now I’d like to take you to the next - - -
**** JANICE ROBERTSON XN MR BACKWELL
PN786
THE COMMISSIONER: Ms Robertson, would you like a little break?---I’m okay.
PN787
You’ll be right?
PN788
MR BACKWELL: I’d like to take you now, if I may, to the situation after the decision not to appoint you to the EO position, and that according to the witness statements, that there has been some discussion in relation to alternate positions to be made available to you. Who was it who approached you in relation to alternative positions?---When Mr Hall rang me to advise me that I hadn’t been the successful applicant and - which was no great surprise, given that I hadn’t attended the interview, I said to him that - that - what I asked him was that they needed to offer me another position that was comparable and that that - I recall saying to him that he’d had - it wasn’t a surprise to anyone, so there must have been some thought given to what they’d be doing and some thought to a position description and he then provided me with a position description, I think it was about four days later, by mail and that was - and then there were subsequent discussions after that about different positions. If you want me to - - -
PN789
Okay. This position description that was made available to you, was this the manager quality monitoring review? No, it wasn’t, I beg your pardon. I withdraw that.
PN790
THE COMMISSIONER: Which bundle are you looking at, Mr Backwell?
PN791
MR BACKWELL: I’m now going to Mr Hall’s witness statement. I understand, if I remember, that in fact some of these position descriptions, which will become subject of my next part of the examination, will be attached here.
PN792
THE COMMISSIONER: All right.
PN793
MR BACKWELL: I beg your pardon. In fact it will be found on the annexure marked AGH8 of Mr Hall’s statement, the original statement.
PN794
THE COMMISSIONER: Yes.
PN795
MR BACKWELL: Manager, Out of Care Quality Improvement.
PN796
Now, this was provided to you on 8 June 2004?---Yes, I think - yes.
**** JANICE ROBERTSON XN MR BACKWELL
PN797
Okay?---I think so, yes.
PN798
THE COMMISSIONER: So this was directly after you’d been told you weren’t being appointed to the EO3 position?---A matter of days, yes. Yes, that - - -
PN799
MR BACKWELL: Now, I won’t take you to the whole of the detail here, but to ask you why was this proposed position unsatisfactory to you?---I’m just trying to find my - - -
PN800
THE COMMISSIONER: You just take your time to find what you need to find, Ms Robertson?---Thank you.
PN801
What I’d like you to do with this position, Mr Backwell, is to show me where it is on that structure chart. Perhaps while you’re just -
PN802
Do you need some help from your team there, Ms Robertson?---I think it might make it - - -
PN803
You haven’t got a spare copy of Mr Hall’s statement there, have you?
PN804
MR BACKWELL: Only the one I’m looking at, I’m sorry, Commissioner.
PN805
THE COMMISSIONER: Nobody else has got one there?
PN806
THE WITNESS: I’ve actually got the - I’ve got the position description. I was actually just looking for some notes that I’ve had on - that I made on that position.
PN807
THE COMMISSIONER: Right, okay.
PN808
MR D’ABACO: I’m sorry, I object to that. It’s not a matter for this witness to have reference to notes she’s prepared for the purpose of giving evidence. She can give evidence from her recollection. I don’t know what these notes are, I haven’t seen them.
PN809
MR BACKWELL: Commissioner, maybe they are notes that were made at the time of the matter?
PN810
THE WITNESS: I think they’re an attachment.
**** JANICE ROBERTSON XN MR BACKWELL
PN811
MR BACKWELL: Attachment to your witness statement?---I think so.
PN812
THE COMMISSIONER: Yes, all right. Mr D’Abaco, don’t be too quick to leap up and object. I am having trouble finding bits of paper. There’s so many bits of paper in the thing. Look, if you can just look at that - let Ms Robertson look for what she feels - - -
PN813
MR D’ABACO: Okay, that’s fine.
PN814
THE WITNESS: It was an attachment to my witness statement.
PN815
MR BACKWELL: To your witness statement?---I think it’s attachment 16.
PN816
I am just showing Ms Robertson attachment 18.
PN817
Is that it?---16.
PN818
No, 16 is an email?---To the first witness statement?
PN819
I beg your pardon. Commissioner, if I just might hand a copy of my - of the witness statement that I have to Ms Robertson, as the full attachments - - -
PN820
THE COMMISSIONER: Yes. All right. If we come back to my question,
Mr Backwell, attachment 1 to CPSU2 is the December 2003 structure?
PN821
MR BACKWELL: Yes.
PN822
THE COMMISSIONER: I take it that the position that was the question - but I take it the position that Ms Robertson was offered was in fact Mr Clements’ substantive position, Out of Home Care Service Improvement Project, is that right?
PN823
THE WITNESS: That’s not actually correct. It was an additional position, it doesn’t appear on - - -
PN824
THE COMMISSIONER: It doesn’t appear on there? Okay, all right?---No. There was no one else acting in Mr Clements’ position when he - so it was another position.
**** JANICE ROBERTSON XN MR BACKWELL
PN825
All right. So this is a new position, not on the December 2003 structure. Okay.
PN826
MR BACKWELL: Have you been able to locate that?---It’s - I’ve got attachment 16, but no, it must have been attachment - one version of - all it is was just the list of positions that have been offered.
PN827
From your best recollection, then, why did you not accept this offer of Mr Hall in relation to this position?---My understanding of what I was - I was entitled to receive, or - was that I was entitled to receive a position that was comparable, or nearest to the status and remuneration to the position that I held prior to commencing maternity leave and while this position was within the same pay scale, it - one of my initial concerns was it didn’t appear on the organisational chart, so I actually was concerned that it may not be a real position and it may disappear in the future, in the near future, that secondly, it was - it only had two staff reporting to it and it had no budget responsibility. It was in fact one - one of - one aspect or one initiative or one element of the work that I was previously performing, so in my assessment, it wasn’t comparable in any way. It was a clear demotion in everything but salary.
PN828
So there was no budget with it, there is four staff report - - -?---Two.
PN829
Two staff report?---As I understood it, there was two.
PN830
To whom would you have been reporting to?---I was to report to Mr Clements.
PN831
THE COMMISSIONER: I am just making some notes so we need to pause for a few moments.
PN832
So what was the budget of this position?---There wasn’t any budget.
PN833
Other than the salary budget, yes?---There was no budget. It was purely managing the implementation of a new approach to quality assurance - - -
PN834
So there is no program budget?---No. Not - no, not to my - - -
PN835
Yes. But your objection wasn’t that you would now be reporting to Mr Clements, who had previously been reporting to you?---No.
No, that wasn’t my objection and that certainly happens in the Public Service. I think it probably does in
most - - -
**** JANICE ROBERTSON XN MR BACKWELL
PN836
Yes, indeed. Sure, sure, sure?---That wasn’t the primary issue.
PN837
MR BACKWELL: Now, in your previous role as VPS6.1, you have detailed to us that it’s a fairly high-profile position within government policy; the program areas were of significant political attention. Would you classify this particular task, as you were given, to be in the same manner?---It’s an important task, but it’s certainly not, you know, one of the - just one of the tasks I was previously responsible for anyway. It’s important work. It just wasn’t - in no way - it didn’t have the complexity or the equivalence to my previous position. It was just one aspect of it, in any way equivalent or comparable.
PN838
What percentage of your previous position would this have job entailed? If we can just look at it on a work volume consequence?---Depending on the approach to these quality issues at any point in time, it would vary from 10 per cent to two-thirds because of - - -
PN839
THE COMMISSIONER: But, Ms Robertson, the truth of the matter is that this was the job at the next level down, if you like, than the job that you had previously been doing?---Yes.
PN840
This was a full-time job that was going to be devoted to these duties?---Mm.
PN841
So the amount of time required by the person doing this job is different to the amount of time required by the person supervising the job?---Yes.
PN842
That’s true to say, isn’t it? Yes?---Yes, it would be 100 per cent of their work and 10 to 30 per cent of mine at any point in time, yes.
PN843
Yes, all right. Fine.
PN844
MR BACKWELL: Thank you. I would likely briefly look at five other positions that you were shown in your discussions - sorry, I withdraw that, if I may, Commissioner.
PN845
You have refused the position as was shown to you, and a position description that was created. What dialogue occurred between yourself and Mr Hall after that?---I then met with Mr Hall to discuss - was to discuss that position and talk to him about whether there were any other positions that were available and I attended a meeting with him and my union representative attended with me and at that meeting he said that if I didn’t accept that position, I could work on his floor reviewing child death reviews. Which is - - -
**** JANICE ROBERTSON XN MR BACKWELL
PN846
What position was that entitled?---I don’t think it had a - it wasn’t a - - -
PN847
Was it a position that existed?---Not to my knowledge. At various times, people have been involved in doing the reviews, but to try and draw some common issues that - between the reviews, but it isn’t an ongoing position as such. It was more of a project type of role.
PN848
Was it presented to you as a project or as a fulltime position?---I think Mr - it was presented as a fulltime position. I think Mr Hall - it was - by that stage I had lodged a grievance and I think it was basically a fill-in position until the other issues were dealt with. I don’t think it was proposed as my long term future.
PN849
THE COMMISSIONER: Well, if I could just go back to the structure chart, where is Mr Hall on this structure chart?
PN850
The organo-gram - I believe in fact that I have handed it up. This was to the position description? I beg your pardon?---No, that may not be - I think there’s one attached to Mr Hall’s supplementary statement.
PN851
Ms Calcer is directing me to Mr Hall’s supplementary statement. That will be annexure AGH16, is another organo-gram. There is a further organo-gram at AGH15 which is the Office for Children. Is this particular position that we’re talking about associated with the Office of Children?---The Office of Children became the new structure, so stick to the - - -
PN852
If I might just hand Ms Robertson AGH15 and AGH16, Commissioner?
PN853
THE COMMISSIONER: Well, I am having trouble finding it amongst my bits of paper, too.
PN854
MR BACKWELL: Sir, if I might take you to the supplementary witness statement of Mr Alan Hall?
PN855
THE COMMISSIONER: Okay, supplementary witness statement.
PN856
MR BACKWELL: I fear, if we’re not to drown in water here, we will drown in paper.
PN857
THE COMMISSIONER: Yes. I am definitely drowning in paper.
**** JANICE ROBERTSON XN MR BACKWELL
PN858
MR BACKWELL: Sir, that is marked under tag D in the supplementary folder provided by the respondents.
PN859
THE COMMISSIONER: Right. Okay.
PN860
MR BACKWELL: Sir, I have two organo-grams in those attachments. Office for Children, and a larger one. If I may, I’d like to ask that we seek to find this next offered job within the organo-gram?
PN861
THE COMMISSIONER: Well, it would be good if you can just begin finding Mr Hall. He appears to be the right of the diagram on annexure 16, Program - is that right?---Yes, that’s right, under the third line - third column.
PN862
Yes. And Child Death Inquiries appears under Interim Arrangements as one item, is that correct? Down below, on 15, annexure 15?---Yes. This structure became effective this year. The Office of Children structure. That’s the result of another restructure.
PN863
No, that’s fine. Well, thank you for explaining that, that’s useful. So is the one at 16 the one that applied at the time?---Yes, but it doesn’t go into the - - -
PN864
The detail?---All of the areas that Mr Hall was responsible for. All this structure has is basically the executive officers attached to the various divisions. It doesn’t have anything below that.
PN865
So where is Mr Hall on this second one, at number 16?---He’s in the third column from the right, second-bottom box. Director Programs.
PN866
Right, yes, because there’s another Mr Hall over on the other side, just to trick us.
PN867
MR BACKWELL: So this position, Child Death Inquiries, did that have any staff reporting to it?---No.
PN868
Okay. Did it have any budgetary responsibilities?---No, not - not that I’m aware of, no.
PN869
It’s reporting directly to Mr Hall?---No, it was reporting to another person at my level. Another manager at the Child Death Review unit.
**** JANICE ROBERTSON XN MR BACKWELL
PN870
Very good. Thank you. I would like to continue to look at it, because there have been quite a number of positions that have been discussed with Ms Robertson during this process, and of course, it is part of the CPSU claim that these positions don’t match in status. So I need to, if I may, Commissioner, take Ms Robertson through the other positions?
PN871
THE COMMISSIONER: Yes.
PN872
MR BACKWELL: Are you familiar with the Manager of Partnerships and Secretariat - - -
PN873
THE COMMISSIONER: Look, it would be helpful to me if I’m told at which stage of the matter these various offers took place. So when did the Child Deal Inquiries offer take place? This was presumably in June 2004, was it?---Yes, it was - I think it was the week of the - it was probably around the 10th. It was the week after I’d been told that I wasn’t going to retain my position. I then met with Mr Hall and that was one of the offers that he made.
PN874
Yes, all right. Fine. So the next one?
PN875
MR BACKWELL: Now, if in fact we still might continue to use Mr Hall’s witness statement, there is a table that’s been provided - - -
PN876
THE COMMISSIONER: Which one of his witness statements?
PN877
MR BACKWELL: This is in the supplementary witness statement, AGH14.
PN878
THE COMMISSIONER: Yes.
PN879
MR BACKWELL: Are you familiar with the position, Manager, Partnerships and Secretariat?---Perhaps the - if that - the next position I was offered, if I could run through them chronologically, that’s probably - I can come to that one.
PN880
Yes, that’s fine. That’s fine?---The next position that I was offered after the - when I was - I commenced work in the north-western region on that project - - -
PN881
THE COMMISSIONER: Yes, and when was that? So this was in the north-western region project, and that was from when?---I think I started there on 14 July and it was - Mr Hall said that he could negotiate with the region, that if I could work out a position that could be ongoing with the north-west region, he might be able to support the - might - I think he sort of said allocate the permanent position in the north-west.
**** JANICE ROBERTSON XN MR BACKWELL
PN882
At the VPS6 level 1 position?---Yes, yes. But there really wasn’t - I mean, like I’ve already said, there was an amalgamation of the two regions. There was people at my level who had been displaced through that amalgamation. There really wasn’t any focus to develop a position - - -
PN883
MR BACKWELL: What was the position title that was being discussed about, in relation to this north-west region?---There wasn’t one. It was - I was potentially able to negotiate something with the region and - - -
PN884
Okay. Then what were the other positions that were then discussed and in what framework were they discussed?---I was then offered the position of Manager, Secure Welfare.
PN885
THE COMMISSIONER: When were you offered that?---I think that was when I first commenced in the - in July, and that offer first came to me via the union, in that the union said that IR branch, Tim Lee, was the director of IR, had contacted the union and said that I could be put into that position.
PN886
What was that position called?---Manager, Secure Welfare.
PN887
Yes. So where is that in all these charts?---It doesn’t appear there because it’s a regional position, it’s not an operational position.
PN888
Right, right?---And it’s a position that’s located in Maribyrnong and they’ve got - or there’s two secure facilities and at the time that position was offered to me, the incumbent was actually on leave without pay and due to return in the December, of last year, so it wasn’t a clear vacancy at the time it was offered to me anyway and even though I was assured that she wouldn’t be coming back, I don’t know how that - that statement can be made, but that position was completely different type of work to the work that I’d been involved in for the last certainly 10 years. It was managing directly of staff, looking after young people who had been - were placed in secure facility for their own welfare.
PN889
So what staff and budget did that have?---I think that - there was a considerable number of staff because it’s a 24-hour facility, so staff were rostered.
PN890
So when you say a considerable number?---I think - well, there were 20 beds in total and I think at any point there was probably at least five staff on roster. I think there was probably a staffing complement in total - probably - - -
**** JANICE ROBERTSON XN MR BACKWELL
PN891
Anyway, there were at least five staff?---Yes. There would probably be more staff to cover the roster - - -
PN892
More than?---There would probably be more than 30 because it was a 24-hour facility, so the people were rostered on over that period of time. So it’s a 20-bed facility divided into two - - -
PN893
What sort of budget?---The budget was allocated directly from my area in head office. I think it was in the - I think it was - I think it was in the order of - it was - it was a few million dollars. It was certainly not - it was certainly not over - I don’t think it was over 5. It was primarily staffing costs in the operation facilities. The policy work for that position, the secure welfare, was done as part of my previous role.
PN894
MR BACKWELL: So this is a hands-on job? This was one where you’re managing the people who then look after the clients?---Yes. It was a completely different career path to what I’d been doing for 10 years. It was - and to a career path that I’d chosen. It was back in an operational position, being on call 24 hours - well, you needed to be on call. I think the person who I knew held the position carried the pager 24 hours a day because there was often crises in the facilities and so forth and - and it was - that was the nature of the role. My career choice had been to work in policy and that had been my - where I’d spent the last - I think probably more than 10 years, of my career, so it was quite a different - completely different role to anything that I’d done for a long, long time. It also reported - it was under the process of being restructured and it was also reporting on - it eventually ended up reporting to the same level as myself, so another VPS6.
PN895
So it reported to - okay, sorry, I did get that. It reported to the same level, whereas your previous jobs, you had reported to the level above you?---To the - to the director.
PN896
To the director; yes. In relation to the 24-hour on call or other operational aspects, would that have suited your family circumstances?---It would have been very difficult for the next couple of years and certainly not - if I wanted to make that - make that career choice, I probably would have already made it my career, if I wanted to go back into operations, but it was certainly not - not what I’d directed my career, not what I’d emphasised my professional development. It certainly would have been very difficult to be on call 24 hours a day with the baby.
**** JANICE ROBERTSON XN MR BACKWELL
PN897
Okay. So clearly, you felt this wasn’t appropriate for you and so discussions continued in relation to other jobs. What was the next one that was put forward to you?---There was another position offered to me, the Manger, Quality Monitoring and Review, which was in the Juvenile Justice branch. It also didn’t appear on the organisational chart at that time. It was one of - - -
PN898
THE COMMISSIONER: What was that one?---It was called Manager, Quality Monitoring and Review.
PN899
Yes, and what about that one? When were you offered that one?---I think - I think those positions - I think those positions came about after - after the second grievance hearing, the grievance officer had been very keen and had agreed to meet myself and Ms Callister and Mr Hall to discuss other positions, so - and then Mr Hall then forwarded these other three position descriptions to me, is my recollection of the sequence of events. Which I had not expected. I hadn’t asked to be given position descriptions to peruse and choose. It was - it sort of came out of the blue, that I suddenly got these position descriptions. The - but I think that was approximately - I think that was approximately July.
PN900
Also July of 2004?---I think so. That would be right.
PN901
MR BACKWELL: So this Manager, Quality Monitoring and Review, staff responsibility?---I don’t believe it had any staff.
PN902
THE COMMISSIONER: What about budgets?---My recollection, is that it actually didn’t. That it was in relation to mechanisms for quality monitoring, rather than - and then they - a particular initiative in relation to that, there may be a small budget allocation temporarily, to get initiatives started, but it’s certainly not an ongoing - ongoing budget responsibility. There were already three VPS6 positions in the Juvenile Justice branch which appear on the organisational chart, it appeared to be additional to that, and appeared to have some of the duties of those other positions in - attached to it, which would make four positions of that level within that very small branch. All working on policy, in Juvenile Justice.
PN903
Yes, all right.
PN904
MR BACKWELL: Let’s continue; the next position that you were offered?
---The next position was the Manager, Child Protection, Professional Education and Publications Unit. It was envisaged - that’s
not a current position. It wasn’t a position at the time and it still isn’t a current position. It doesn’t appear
on the current organisational chart, to my knowledge. It had two direct reports and no budget responsibility and it’s still
not activated 12 months later, so it’s not - - -
**** JANICE ROBERTSON XN MR BACKWELL
PN905
What do you base your knowledge of that on?---I had some - I was looking at - I looked at the organisational - current organisational chart again just recently, or the list of staff, and there’s not a unit entitled that in the current structure. So the current - yes, the current structure doesn’t have that unit in it.
PN906
All right. So we’re definitely on the downhill leg here, Commissioner.
PN907
THE COMMISSIONER: That’s fine.
PN908
MR BACKWELL: The next one, please?---Was - - -
PN909
I’m sorry, I beg your pardon. We had one person, staff responsibility there, for a direct line report, or how many?
PN910
THE COMMISSIONER: I think there were two.
PN911
MR BACKWELL: Two; I beg your pardon?---Yes, there were two, but - - -
PN912
And budgetary responsibility?---No budget responsibility and it reported to the manager of child protection, not to the director. The previous JJ position also reported to the manager of Juvenile Justice, not to the director of the branch.
PN913
Can we move to the next one?---The next one was the Manager, Early Youth Continuity and Care. Which was a project position located within the - a different branch to the branch that I’d worked in. It was - at that stage it was the - - -
PN914
Sorry, was this the Project Manager, Early Years - - -?---Yes, yes.
PN915
I beg your pardon. Whereabouts is that located?---On the organisational chart - it was located in what was then the Family and Community Support Branch. I think that was the name at the time, which no longer exists. And it was reporting to the Manager, Early Years. Yes, Family and Community Support Branch is where it was located. It had no staff and no budget responsibility, as far as I’m aware.
PN916
It was an ongoing position, though?---Yes, it wasn’t on the organisational structure, though, and it still doesn’t exist, on the organisational structure.
PN917
THE COMMISSIONER: Yes.
**** JANICE ROBERTSON XN MR BACKWELL
PN918
MR BACKWELL: We’ll continue with the next position.
PN919
THE COMMISSIONER: This next one is the eighth.
PN920
MR BACKWELL: Yes. I have here - and I’m not too sure whether we’ve discussed this as yet - Manager, Partnerships and Secretariat. Not familiar with that?---They were the positions that were discussed at the conciliation.
PN921
Okay. Well, let’s go to that process, then. There were a number of - obviously, this case moved forward to a conciliation and there was a number of positions that were discussed at that conciliation.
PN922
THE COMMISSIONER: Which is when?---In May.
PN923
May 2005.
PN924
MR BACKWELL: Okay. Do you have recollection of that position, of the Manager of Partnerships and Secretariat?---I recall the title and that it was discussed.
PN925
All right. Well, we’ll be able to question Mr Hall about some of the other - the elements that we’ve been consistent with in this process, so we might move on.
PN926
THE COMMISSIONER: Yes.
PN927
MR BACKWELL: Manager, Service Improvement Team; are you familiar with that one?---That, as far as I’m aware, is one that was recently given to you when you contacted the Department.
PN928
So we haven’t had actually any discussion in relation to this particular title, this one?---Well, position is the position that was previously David Clements’ substantive position, as it’s become vacant again because someone’s left, so that’s only fairly recent too.
PN929
Okay. So you’d be very familiar with those one, then, as being previously what Mr Clements held?---Unless the unit has been restructured in some way. There may be some additional projects in there, but as far as I understand it, it still looks after the quality assurance, or is responsible for the quality assurance strategy. I think they’re looking after children, the framework, which is quality assurance framework, the educational liaison function.
**** JANICE ROBERTSON XN MR BACKWELL
PN930
Are you familiar with the budget or the staff responsibility as it existed when you were associated with the position, or familiar with it?---I think it’s actually changed quite a bit since I was associated with it, but I think there’s approximately four staff working at the unit at the moment.
PN931
THE COMMISSIONER: What about the budget?---The budget, based on my understanding would be - would just be quite specific to the particular initiatives, so there was some money allocated for the looking after children framework, for example, when I was managing that area, but that was on a temporary basis to enable the implementation of the framework. I mean, it wasn’t going - it wasn’t recurrent, and there was no money allocated to the educational liaison, apart from some one-off funding in the first year. And I’m not actually - I understood that that position was - that was never formally offered to me. I understand that they were filling that, but it was never offered to me.
PN932
So you don’t remember it being offered, and you don’t remember rejecting it?
---No. Mr Backwell was - when he contacted the Department before this hearing, they said, “These are the positions that are
still on offer”, but that one had never been offered to me and they were going through the process of recruitment at the time
that they advised it to Mr Backwell, but they never contacted me about it.
PN933
MR BACKWELL: I think then we’re up to our final one which is Manager, Secure Welfare?---We’ve done that one.
PN934
I beg your pardon?---We’ve done that one.
PN935
We’ve done that one? My apologies.
PN936
THE COMMISSIONER: Yes, we’ve done it. Well, maybe it’s been offered again? Has it been offered again?---It’s still on - it’s still - - -
PN937
MR BACKWELL: As will happen in Mr Hall’s evidence, I’m sure that there will be a listing - well this, as I say, is no surprise to us. The AGH14 was sent to myself and - some time ago.
PN938
THE COMMISSIONER: Well, I might ask you overnight, Ms Robertson, to look at this document at attachment 14 of Mr Hall’s supplementary statement because it outlines - it appears to outline the positions which are currently available at your substantive level. So I think you should - I’d appreciate an indication from you of your level of interest in any one of those positions, or otherwise why it is you would not be interested in any one of those positions. We could deal with that, perhaps, first thing in the morning.
**** JANICE ROBERTSON XN MR BACKWELL
PN939
MR BACKWELL: As you please, sir. Sir, that will then conclude our examination-in-chief pending that evidence.
PN940
THE COMMISSIONER: Ms Robertson, I have offered you the opportunity to look at that document overnight, but it may well be you can look at it now for a few minutes before I hand you over to Mr D’Abaco for cross-examination, who I am sure will want to get going with the cross-examination this afternoon?---Yes.
PN941
So why don’t we adjourn for a few moments to do that, and Mr D’Abaco, subject to just dealing with this one issue, we’ll be ready for cross-examination. Yes, thanks very much.
PN942
MR D’ABACO: What time, may I ask, Commissioner - - -
PN943
THE COMMISSIONER: I’ll be finishing at 4, yes. Thanks. I’ll now adjourn.
<SHORT ADJOURNMENT [3.12PM]
<RESUMED [3.17PM]
PN944
THE COMMISSIONER: Yes, Mr Backwell?
PN945
MR BACKWELL: Yes, Commissioner, I was wondering whether you may indulge us to have that evening to be able to reflect on it, and we could proceed immediately into cross-examination, but then take up on recall on that specific issue?
PN946
THE COMMISSIONER: Yes. Because the only thing I want to know,
Mr D’Abaco, is if she’s interested in any of those positions. It would be most unfortunate to press all the way forward
with a full hearing of the matter. If there’s anything there which is of interest, then presumably some discussion and negotiation
can take place in that regard.
PN947
MR D’ABACO: We’ve taken the silence which has fallen from the applicant as being a refusal, and in fact where the positions of any interest and the positions were offered to the applicant - provided to the applicant’s representatives - almost 2 months ago now, that there would have been an interest, but if Ms Robertson wants to reconsider them overnight, and get back to us, that’s fine, but we do wish to press on with cross-examination.
**** JANICE ROBERTSON XN MR BACKWELL
PN948
THE COMMISSIONER: Yes, that’s fine. All right. Good. You’re ready for cross-examination, Ms Robertson? I’ll ask Mr D’Abaco not to be too tough on you. This is not the Colosseum.
<CROSS-EXAMINATION BY MR D'ABACO [3.18PM]
PN949
MR D’ABACO: Ms Robertson, you gave some evidence earlier today that when you left on your first period of maternity leave at the end of March 2003, the restructure within the Department of Criminal Justice and Criminal Juvenile Justice was still continuing; is that correct?---The structure had been finalised. The position description that I developed before going on maternity leave included the new - the new functions. There was still a period of consultation to be completed with effective staff and also there was a process to fill vacant positions, and that wasn’t completed until July, as I understand it.
PN950
Yes. So in relation to the overall structure within the Department, including the position of Manager, Out of Home Care and Placement Support - Specialist Support, I’m sorry - that position itself only formally came into existence in approximately June/July of 2003, is that correct?---I don’t think I changed - I’m not sure whether I was using that title before I went on maternity leave. It was certainly the title that I attached to the position description when I was talking to people who were interested in filling my role, that that was the title I was talking about.
PN951
Yes. That was the title that you had referred to, but you’ll agree with me, will you not, that in terms of that position formally
appearing in any organisational chart, it actually came into existence while you were on maternity leave during the period approximately
June to July of 2003?---The transfer over of staff occurred when I was on maternity leave, the transfer over of inter-country adoption
and permanent care and adoption care - adoption occurred when I was on maternity leave, yes.
It - - -
PN952
So I take it that’s a yes to the question I was asking you?---Not entirely because the - because the job description that was advertised, that was filled when I went on maternity leave, was the title, Manager, Out of Home Care and Specialist Support, that was the position that was advertised on a temporary basis, but - but you’re right, in that some of the new functions moved over after that other process had been completed and I was not there then, I was on maternity leave.
PN953
So in terms of the functions and responsibilities which existed within the VPS5 position as it then was, you agree with me, do you know, that that whole process only was completed while you were on maternity leave?---It was completed while I was on maternity leave, yes.
**** JANICE ROBERTSON XXN MR D'ABACO
PN954
Now, you then returned to work from your first period of maternity leave on 29 March 2004?---That’s correct, yes.
PN955
And I think you gave evidence earlier today that at the time you returned to the position, or you assumed the position, of Manager, Out of Home Care and Specialist Support?---Only in as far as duties were removed from virtually the day - well, the second day I returned to work, but yes, that was the position I returned to, the title of the position I returned to.
PN956
So you returned to the position of Manager, Out of Home Care Specialist Support, and that was a VPS6 position, is that correct?---VPS6.1, yes.
PN957
And it was a VPS6 position as opposed to a VPS5 because of a wider restructuring of the Public Service classifications which had taken place at the end of 2003?---Yes. It hadn’t been like - it wasn’t a VPS6 position because it was a promotion, it was just the translation across.
PN958
Yes. You continued to work in the VPS6 position of Manager, Out of Home Care and Specialist Support until 6 June 2004?---I performed some of the functions. Not all of them.
PN959
Well, did you occupy the position of Manager, Out of Home Care Specialist Support from 29 March, Ms Robertson?---Well, I did some of the functions, not all of them. That was my title.
PN960
You were paid as a VPS6 level 1 employee?---Yes.
PN961
And the rate of salary you were paid was in accordance with that position of Manager, Out of Home Care and Specialist Support?---As it was then classified, yes.
PN962
Yes. So for a period of some - correct me if I’m wrong, please, but throughout the period of April, May, a short period of June, some over 2 months after your return from maternity leave, you continued to occupy that position?---I don’t think I’ve entirely agreed that I occupied the position in that - - -
PN963
THE COMMISSIONER: Ms Robertson, I understand what you’re saying?
---Yes. Then, yes. That was my title.
**** JANICE ROBERTSON XXN MR D'ABACO
PN964
MR D’ABACO: After 6 June, with the creation and filling on an acting basis of the position, or the executive officer level 3 position, you no longer continued to perform the duties, or some of the duties which you had previously performed, is that correct?---That’s correct.
PN965
Yes. You say that you felt that from that point on, you were entitled to a comparable position within the Department, is that correct?---Yes.
PN966
Yes. You understand, do you not, Ms Robertson, that this application which has been brought by yourself and your union on your behalf is in relation to a dispute regarding the application of the 2004 VPS Agreement?---Yes.
PN967
And you understand, do you not, that this Commission is constrained in terms of its powers to determine disputes regarding applications
of certified agreements?
---I think - - -
PN968
THE COMMISSIONER: That you understand that the powers that I’m exercising are powers which arise from the inter-relation of the agreement with the Act. Yes. With the Workplace Relations Act?---Relations Act, yes.
PN969
MR D’ABACO: That part of the 2004 VPS Agreement which you are agitating is those provisions dealing with parental leave, is that correct?---Yes.
PN970
Can I ask you to look at this document, please.
PN971
THE COMMISSIONER: It’s all right, Ms Robertson - - -
PN972
MR D’ABACO: I’m taking the witness to a copy of the VPS Agreement 2004.
PN973
Can I ask you to turn to clause 48 of that agreement, please, Ms Robertson, which is the provision dealing with maternity leave, or
parental leave I should say, I’m
sorry?---Mm.
PN974
Can I ask you to point, either in that clause or elsewhere in the agreement where it says that you are entitled to a comparable position?---I think it’s a - without having it - the schedule in front of me, I should think it’s by reference to the Workplace Relations Act.
PN975
Perhaps if I can give you some assistance there? I’ll give you a copy of the Workplace Relations Act, and in particular, you’ll see that I’ve marked with a yellow stick-it, clause 12 of schedule 14, which is referring to the clause of the Act?---Yes.
**** JANICE ROBERTSON XXN MR D'ABACO
PN976
Where does it say, in clause 12 of schedule 14 of the Workplace Relations Act that upon your return from maternity you were entitled to a comparable position?
---Comparable is the word that’s been used to, I guess, summarise what it says in relation to:
PN977
The employer must employ her in whichever of those positions is nearest in status and remuneration.
PN978
I think that would probably - - -
PN979
That’s a word that you’ve used and you’ve adopted for the purposes of these proceedings, is it not, Ms Robertson? Comparable?---It’s a word that I actually got from reading cases of a similar nature.
PN980
Were they in relation to cases which you have read regarding discrimination complaints, Ms Robertson?---Not all of them, no. There was also cases at the Industrial Relations Commission about comparable positions and so forth, so it’s not my construction.
PN981
MR BACKWELL: Commissioner - - -
PN982
THE COMMISSIONER: Yes, Mr Backwell, I’m just about to - Mr D’Abaco, Ms Robertson is not her own legal representative in this matter and I’m not expecting her to be - these are matters that will be for you to make submissions to me about, what may be the powers of the Commission in this matter.
PN983
MR D’ABACO: All right. Well - - -
PN984
THE COMMISSIONER: You can ask her the questions, and you have drawn out the points; I think that’s as far as you can take it.
PN985
MR D’ABACO: So I take it, do you agree, Ms Robertson, that in those two documents which I’ve shown to you, the copy of the ‘04 agreement an also the relevant parental leave provision which is referred in the agreement, there is no reference to the use of the word comparable, is there?---Comparable, no. Correct. No.
PN986
Thank you. If I could have those documents back, please? Now, Ms Robertson, Ms Callister was appointed your direct manager in 2002, is that correct?---I - yes, that’s correct.
**** JANICE ROBERTSON XXN MR D'ABACO
PN987
At that point in time, what was the position which she occupied?---At that stage I think it was called Director of Child Protection and Juvenile Justice.
PN988
Did she in turn report to an executive director?---To my recollection, she reported to the executive director, Pam Wyatt, at the time.
PN989
She and the executive director then in turn reported to the secretary of the Department, is that correct?---That’s correct.
PN990
So in terms of the management relationship, as it were, you were on the fourth tier? Would you agree with that?---That’s correct, yes.
PN991
Yes. Now, you’ve given evidence both in your witness statements and the evidence you have given today that you enjoyed a very good working relationship with Ms Callister?---I said a cordial and professional relationship were my words.
PN992
Yes. Well, there’s certainly no indication - and the Commissioner asked you this question earlier today - that there were any difficulties in your relationship or your working relationship with Ms Callister, was there?---Not really. No. No.
PN993
You got on well with her personally, insofar as you had personal interactions at work?
PN994
THE COMMISSIONER: Well, I think she’s given her evidence with regard to this, Mr D’Abaco.
PN995
MR D’ABACO: Well, I’ll just continue if I may, Commissioner?
PN996
THE COMMISSIONER: Yes, you can, but I feel I - - -
PN997
MR D’ABACO: I’m turning to the personal aspect of the relationship as opposed to simply a professional working one, sir.
PN998
THE WITNESS: So personal in - could you define what you mean?
PN999
MR D’ABACO: Yes, in terms of the personal discussions and the personal discourse you would have with Ms Callister during the course of work; there were no difficulties in the relationship, were there?---No, not - not to my recollection, no.
**** JANICE ROBERTSON XXN MR D'ABACO
PN1000
It’s true, is it not, that before you went on your first period of maternity leave, she actually gave you a cradle so you could use that for your first baby?---That’s correct, yes.
PN1001
You are aware also, are you not, that Ms Callister herself is a mother?---Yes.
PN1002
And that Ms Callister herself has three children?---Yes.
PN1003
And she’s raised and brought those children up whilst also maintaining her professional career?---Yes.
PN1004
Now, during your first period of maternity leave, you visited the Department’s offices, the head office here in Melbourne, on a number of occasions?---My recollection is only the once. I then attended a couple of lunches, but they weren’t - with colleagues who were leaving, but they weren’t in head office, they were elsewhere, but I actually came back into the - onto the 20th floor once.
PN1005
Was one of those occasions with your baby, to show her - - -?---Yes.
PN1006
To show your child, I’m sorry, to your fellow work colleagues?---Yes, yes.
PN1007
THE COMMISSIONER: I think there’s something in the agreement about this, being a condition or requirement, for people to go on maternity leave, that this ritual has to be performed?
PN1008
MR D’ABACO: Yes. You also proudly showed her to Ms Callister and you sat in her office and you discussed the trials and tribulations of motherhood as well, didn’t you?---That’s correct.
PN1009
She gave you a sympathetic ear because she understood what it was like because she’d been there herself?---Yes.
PN1010
MR BACKWELL: Commissioner, my question is to relevance?
PN1011
MR D’ABACO: Well, it’s relevant on this basis - - -
PN1012
THE COMMISSIONER: Let me assure you, I’ll be judging the relevance.
PN1013
MR D’ABACO: Did you answer the last question? So you sat down with
Ms Callister and showed her the baby and you discussed the trials and tribulations of motherhood?---Yes, I can’t recall exactly
what we talked about, but the baby was there when we were chatting.
**** JANICE ROBERTSON XXN MR D'ABACO
PN1014
That was during the time when you were on maternity leave?---Yes.
PN1015
So it’s not accurate to say, as you do say in paragraph 15 of your witness statement, that you didn’t hear from your manager, Ms Callister, during that time, is it?---I didn’t hear from her, other than that meeting.
PN1016
So, you did hear from her during that period? Is that correct?---When I went into the office we talked, yes.
PN1017
So given what you’ve now recollected, would you accept that what you have said in paragraph 15 of your statement, that you had no contact with Ms Callister during that period, is not accurate?---I actually thought I mentioned the visit to the office in my witness statement.
PN1018
Well, you thought incorrectly. You didn’t - - -
PN1019
THE COMMISSIONER: Well, Ms Robertson, you are modifying your statement, are you, to the extent to which you say you spoke to Ms Callister in a perfectly agreeable and normal manner - - -?---Yes.
PN1020
- - - when you went into the office?---Into the office, yes.
PN1021
Yes, all right. On one occasion?---On one occasion.
PN1022
But Ms Callister didn’t initiate any contact with you?---No.
PN1023
MR D’ABACO: And that was during the period when you were on maternity leave from your duties, is that right?---Yes.
PN1024
Before that time, before you went on maternity leave, did you have any personal relationship with Ms Callister outside of your working relationship?---Only to the same extent that I would have with most of my managers.
PN1025
Yes, thank you. Now, you’ve given evidence today that during the course of 2002 and early 2003 there was a restructuring of
your department. Is that correct?
---Yes.
PN1026
You’ve given evidence that the position which you occupied was given responsibility for other program areas such as permanent care and adoption and inter-country adoptions, is that correct?---Yes.
**** JANICE ROBERTSON XXN MR D'ABACO
PN1027
It was your belief, before you went on maternity leave, was it not, that the position which you occupied, the position of VPS5, ought to be classified at a higher level?---My recollection is that I discussed that with the consultant and I know other people raised it with her - - -
PN1028
Is that a yes?---Yes. Yes.
PN1029
All right. And that’s - - -?---Given the change in duties, yes.
PN1030
That in effect, is it not, the thrust of the evidence you have provided in paragraph 11 of CPSU2, your first witness statement, isn’t it? Perhaps before you look at the documents, can you recall whether that was the thrust of your evidence in respect of your hope or your belief that your position should have a higher classification?---No, I can’t - I believed at the time of the restructure that it should have been reclassified. It wasn’t.
PN1031
Yes - - -?---There was - to my understanding, there was another opportunity with the new VPS career structure, that I could have had some discussions with Ms Callister about it potentially going up to 6.2 band, but at the point of the restructure, it wasn’t reclassified and that was what I understood to be the case.
PN1032
Yes, I understand that - - -?---Whatever I thought of that, the decision had been made.
PN1033
Yes. And you also hoped, did you not, that you believed your position would be re-evaluated and given a higher classification?---Under the new career structure, I thought it would have been probably elevated into the 6.2 level.
PN1034
THE COMMISSIONER: This is your position before you went on maternity leave - - -?---Yes.
PN1035
- - - with the full range of duties?---Yes, yes. I believed it would have gone into the - - -
PN1036
MR D’ABACO: And it’s true, is it not, that as events transpired, when the new VPS classification structure was implemented in the Department and within the Public Service here in Victoria generally, your position did indeed move to a VPS6 level, didn’t it?---That wasn’t a promotion. That was a translation - - -
**** JANICE ROBERTSON XXN MR D'ABACO
PN1037
THE COMMISSIONER: No, no, no. He’s not saying that. He’s really only asking you to confirm what you’ve already said, Ms Robertson?---Okay. Yes, yes.
PN1038
MR D’ABACO: Now, on 9 January, you were telephoned - you have given evidence that you returned a telephone call you’d received during the day from Ms Callister. Do you recall that evidence?---Yes, I do. Yes.
PN1039
Ms Callister informed you, amongst other things, that a new executive officer position had been created to manage the Out of Home Care and Specialist Support function within the Department, is that correct?---That’s my recollection of the conversation, yes.
PN1040
Yes, and she informed you that this new executive officer position had been created as a result of the recognition of the increasing complexity and responsibility of that function that you had previously been involved in performing, is that correct?---The - the - Ms Callister referred to increased complexity. She referred it back to the restructure of 2003 and that that made the job more complex, but then there had been other things that had made it even more complex and hence the - the new position.
PN1041
THE COMMISSIONER: But they are the things which had made it more complex that had arisen while you’d been away on maternity leave? Was that your understanding of what she was saying?---I think that she referred to the ministerial advisory committee, the children’s advocate, they were the - my recollection of the two things she referred to.
PN1042
In terms of Ms Callister’s reference to the increasing complexity and responsibility and accountability of the role, that was in accordance with your own beliefs and your own observations at the time when you went on maternity leave in March ’03, was it not?---My view was that the position had more responsibility than the other positions, but that the restructure hadn’t - the restructuring was comprehensive and which considered all of the positions, and added additional duties to my position, concluded that my position was substantially unchanged and I - that was the - that was the outcome of the restructure. That was accepted by me.
PN1043
I ask you to go back and if you just recall the question which I originally asked you, Ms Robertson. The question that I asked you was that Ms Callister’s statement, when she spoke with you on 9 January 2004, that the position had increased in terms of complexity, responsibility and accountability, accorded with your own views, your own beliefs at the time when you went on maternity leave at the end of March 2003, didn’t it?---At the time - at that time, that it was classified as a VPS5, yes.
**** JANICE ROBERTSON XXN MR D'ABACO
PN1044
Thank you?---Yes.
PN1045
Now, Ms Callister then went on, did she not, during the course of this discussion to outline to you some of the changes to the function which you had previously managed prior to going on maternity leave? Is that correct?---Ms Callister made reference specifically to the ministerial advisory committee and the advocate. They’re my only recollection of the - of the - of the - and she - the first comment she made was, “Well, the restructure last year added additional functions” and then since then we’ve had the ministerial advisory committee and the children’s advocate, both of which are relevant to the position, but they don’t report to the position, they’re not part of the structure.
PN1046
So when I asked you - Ms Callister then went on to outline to you some of the changes to the function which had taken place during your absence on maternity leave, is that a yes?---The two functions - yes to the two functions I mentioned.
PN1047
Well, did she refer to the ministerial statement which had been handed down in June 2003, which gave prominence to issues related to out of home care?---Not in that telephone conversation.
PN1048
Did she refer to the creation of the Office of Child Advocate?---She referred to the children’s advocate, of which I was aware through the newspaper, but yes.
PN1049
Yes. She also referred to the creation of the ministerial advisory committee?
---Yes.
PN1050
Now, you gave evidence earlier today, did you not, that you believed that ministerial advisory committee was substitution for some other form of committee. Do you recall that evidence?---I said there was a ministerial advisory committee in operation before I went on maternity leave, yes, and then there was another ministerial advisory committee instituted after I went on leave and my point was that there was - at various times there may be ministerial advisory committees in existence and - - -
PN1051
Was that previous committee that you’re referring to known as The Placement and Advisory Support Committee?---No.
PN1052
Well, I put it to you - - -?---I think that’s - - -
**** JANICE ROBERTSON XXN MR D'ABACO
PN1053
- - - that the ministerial advisory committee is a new committee which came into existence as a result of the ministerial statement in mid-2003. Would you accept that?---I accept it’s a new committee, yes.
PN1054
Thank you. Ms Callister also referred to issues of public confidence in the child protection system which had recently been highlighted as being one of the factors, or one of the reasons for the increase in responsibility?---Not in that telephone call. That wasn’t - no, that wasn’t the character of the - the nature of the call. That level of detail wasn’t - - -
PN1055
Did she refer to new recruitment models for foster care?---Not in that telephone call, no.
PN1056
Did she refer to new regional ownership models?---Not in that - - -
PN1057
MR BACKWELL: Sir - - -
PN1058
THE COMMISSIONER: Yes, Mr Backwell?
PN1059
MR BACKWELL: It may be that we’re leading evidence of Ms Callister during this conversation, rather than what is being cross-examined - - -
PN1060
MR D’ABACO: It’s cross-examination. I’m entitled to - - -
PN1061
THE COMMISSIONER: Yes, Mr D’Abaco is just wanting to sign off of some kind of things. He’ll be leading. We’ll have Ms Callister in due course. He’s just giving Ms Robertson the opportunity to have her say about what might have been said in that conversation.
PN1062
THE WITNESS: Those functions were raised in other contexts. They weren’t discussed in that telephone call.
PN1063
MR D’ABACO: Did Ms Callister tell you that she believed this was a positive development for the function within the Department?---Ms Callister thought it was a very positive thing, yes.
PN1064
You agreed with her on it?---To be honest, I can’t recall. It was - - -
PN1065
THE COMMISSIONER: Well, that’s all you need to say. You don’t recall. If you don’t recall.
**** JANICE ROBERTSON XXN MR D'ABACO
PN1066
MR D’ABACO: Looking back on it, Ms Robertson, would you agree that the creation of an executive level position to manage these functions is a positive development for overall outcomes for the children concerned?---I think the - only in as far as that the level of the classification of the manager has a direct impact on the quality of work done. Other than that - - -
PN1067
Well, you accept, do you not, that there is a different level of influence within the Department, a different level of influence in terms of access to the most senior officials of the Department, if you are more highly placed in the career structure? Would you accept that?---I think - - -
PN1068
THE COMMISSIONER: Well, sorry, Mr D’Abaco, can I just tell you that on the - and this will be a matter for submission, but in my experience, which is not inconsiderable, where you are - the number of layers down in the chain you are is what matters, rather than a difference of a grade or two, so I don’t know that if you’re a VPS6 level 1 or an EO3 would really make much difference.
PN1069
MR D’ABACO: Well, it does, Commissioner, if the grading actually influences where you are within the management structure - - -
PN1070
THE COMMISSIONER: But if you’re only at the same number of layers in the hierarchy, that’s all that matters. You get to go - you report directly to a person above you, the EO3 reports directly to Ms Callister.
PN1071
MR D’ABACO: It’s ultimately a matter for submissions. I mean - - -
PN1072
THE COMMISSIONER: Yes, it will be.
PN1073
MR D’ABACO: I’m inviting this witness to comment upon it.
PN1074
THE COMMISSIONER: Yes. Well, I mean, you can ask her, but let me assure you that I have considerable experience on the subject of how the Public Service operates.
PN1075
MR D’ABACO: Ms Callister - - -
PN1076
THE COMMISSIONER: I might also say that on the basis of that experience, looking at the job that Ms Robertson had beforehand, I certainly would be happy to have any submissions on the subject of - it certainly looks as though that was a very - that was a pretty - that was carrying a lot of duties and a lot of budget for a position at the level that it was being remunerated at. So I wouldn’t have been surprised that there would have been a reclassification of that level at some stage.
**** JANICE ROBERTSON XXN MR D'ABACO
PN1077
MR D’ABACO: Evidence will be given as to whether it was a reclassification or whether it was a creation - - -
PN1078
THE COMMISSIONER: Yes, sure, sure.
PN1079
MR D’ABACO: You were told by Ms Callister, weren’t you, Ms Robertson, that the new EO3 position would be advertised?---Yes.
PN1080
Do you accept that it is a requirement of the Department’s own policies that the process in relation to the filling of an executive officer position is it must be advertised, applicants sought and interviews have to be conducted?---I accepted that when I was told by Ms Callister, but I now know that’s not the case.
PN1081
Well, I - - -?---There is policy that provides for exemptions for that type of - - -
PN1082
Can I ask you, please, to have a look at this document?
PN1083
I am taking the witness to attachment 4 of her witness statement.
PN1084
THE COMMISSIONER: Which of her statements?
PN1085
MR D’ABACO: CPS2, the first statement, sir.
PN1086
Now, the position which had been created was an ongoing position? Is that correct?---No. It was a contract position.
PN1087
A contract position that exceeds 6 months?---It’s a contract for over - out to 5 years. It’s different to an ongoing Public Service position.
PN1088
So a position for a vacancy exceeding 6 months?---Yes, it was longer than 6 months.
PN1089
If I can ask you to turn, please, to the second page of that document I have handed to you? This is an attachment to your witness statement. That, presumably, is an extract from the Department of Human Services intranet? That’s correct?---Yes.
PN1090
It deals with executive officer positions and the creation and filling of those positions?---It’s only one of the documents that deals with - with that. It’s not - there’s other documents that deal with promotions, yes.
**** JANICE ROBERTSON XXN MR D'ABACO
PN1091
That document provides, does it not, on the second page that vacancies must be advertised?---This document only says that, yes.
PN1092
And it goes on to provide that advertised positions have to undergo a merit-based selection process?---Yes. That’s correct.
PN1093
Unless, for example, there are - in the event of redundancy; there was no suggestion of redundancy here?---To me?
PN1094
Yes?---Not in a formal sense, no.
PN1095
Significant change to role; there was no suggestion of a change to the role of an executive officer during these circumstances, was there?---I’m sorry, are you reading from here?
PN1096
Yes?---I actually don’t quite understand - - -
PN1097
Well, if you don’t understand it, you don’t understand it. I won’t take it any further. And there was no suggestion of occupational health and safety considerations, was there?---I don’t understand the question, I’m sorry.
PN1098
There was no suggestion when Ms Callister spoke to you that there was a situation where there was an executive officer position being created which would not require advertisement and a proper selection process due to any occupational health and safety considerations, was there?---No.
PN1099
What I’m putting to you is that what Ms Callister told you in relation to the advertisement of the position and the process where it would be filled, was in conformity with this document?---It wasn’t the complete picture in relation to the employment practices within the Department.
PN1100
Can I ask you to answer the question, please, Ms Robertson? This is a document you have attached to your statement. Would you agree with me that the process which was outlined to you by Ms Callister on 9 January last year in relation to the filling of the position was in conformity with this document?---In terms of Ms Callister saying that it had to be advertised, yes.
PN1101
Thank you. Now, Ms Callister noted, when she spoke with you, or said to you, did she not, that you were the current - you occupied the position which currently managed this function?---Not in those words, but that was the - that an executive officer has been allocated to manage the area of Out of Home Care and Specialist Support, yes.
**** JANICE ROBERTSON XXN MR D'ABACO
PN1102
Did she tell you that it was her belief that you would be a strong candidate for the position?---No, she didn’t.
PN1103
I put it to you that in fact Ms Callister did encourage you to apply for the position?---No, Ms Callister didn’t encourage me to apply for the position until after I made my complaint to the Equal Opportunity Commission.
PN1104
Did you ask her whether your position was going to be cashed in?---I asked what would happen to me. I didn’t use the words “cashed in”.
PN1105
All right?---I don’t know what “cashed-in” means. I think it’s a fairly crass term. I asked what was going to happen to me.
PN1106
THE COMMISSIONER: What does “cashed-in” mean, Mr D’Abaco?
PN1107
MR D’ABACO: I have absolutely no idea, Commissioner.
PN1108
THE COMMISSIONER: Yes, I don’t either.
PN1109
MR D’ABACO: I have no idea.
PN1110
THE COMMISSIONER: Well, we’re all ignorant, then.
PN1111
MR D’ABACO: You said a few moments ago that you asked Ms Callister what would be the consequences if you were unsuccessful in your application for the EO3 position, is that correct?---Yes. Words in summary, yes. I wanted to know what would be my - what could happen to me.
PN1112
She told you, did she not, that because the new position would subsume many of the duties and responsibilities which had been attached, or were attached, to the VPS6 position, that another position would be provided to you at the VPS6 level; is that correct?---That’s correct. In head office or a region.
PN1113
THE COMMISSIONER: That was on 9 January, was it?---That was on 9 January.
PN1114
MR D’ABACO: You weren’t happy with that, or you were still concerned, and you continued to press her for what your options would be in the event that any application you made for the executive officer position was unsuccessful? Is that correct?---I only recall her answering once, that I would go to - I would be allocated another position in the region or head office, which was fairly clear to me, so I don’t believe I would have continued to press that. That’s an answer to your question.
**** JANICE ROBERTSON XXN MR D'ABACO
PN1115
All right. You say you don’t believe you would have pressed it. Is it fair for me to say from that you may have said it, but you may not have said it? You simply don’t recall whether you did continue to press it?---I recall her answer. I don’t - I only believe that it - that I asked the question once and she answered it. I don’t recall continually asking it, if I’d already had an answer.
PN1116
You then asked her, in relation to the amalgamation of the northern and western regions, and you asked her whether any executives had been displaced from that process; is that correct?---Yes.
PN1117
I take it that you were asking her that question because you thought that it may be that one of those displaced executives would move in, as it were, to the position? Is that correct?---That’s what I understand - understand the process. If someone has been displaced, then they had some right to a vacant position, so yes, that’s what I thought to be the process, yes.
PN1118
Ms Callister told you, did she not, that in fact there were no such displaced executives?---Yes. Yes.
PN1119
Do you understand now that the fact that there were no displaced executives, it was from the fact that there were no displaced executives that the surplus executive officer position indeed became available?---Yes. I think so. That’s what the chain of events was, that there couldn’t be a new position so they got permission to use an existing position.
PN1120
So because there is an existing position available, there was no requirement to go through other formal processes for the creation of an additional position for the Department?---The documents that I got under Freedom of Information indicated that the Department had sought an additional position and were told by human resources branch that it is work - that it is work that is currently being undertaken, you won’t get an additional position, you would have to find it internally, and that’s what happened, and that’s - I only know that because of the - and that’s an attachment to my statement.
PN1121
Yes. Well, we’ll come to that in due course in the scope of argument. You have given evidence that in terms of the discussion, you say that at the end of the discussion you were - I think, to use your own words, you were shocked and disappointed and you were hurt? Is that correct?---Once I’d hung up the phone and considered it more fully, yes, it was a shock when I heard it and then it was something absorbed a bit more slowly.
**** JANICE ROBERTSON XXN MR D'ABACO
PN1122
You didn’t express any shock to Ms Callister during her discussion with you?
---No, I listened to what she said, but I - - -
PN1123
You didn’t express any disappointment when you spoke with her?---Only as far as - as I said, I wanted to go back to my position and I had made arrangements for childcare in line with that, so therefore I guess implied in that was that if I was going to a region, it would make - I wouldn’t know what to do, but other than that, no.
PN1124
Ms Callister never told you, during the course of that discussion, that you would not be returning to your position at the conclusion of your maternity leave, did she?---It was implied in what was discussed, but - - -
PN1125
Perhaps if you can answer the question? Ms Callister never told you during the course of that discussion that you would not be returning to your position, did she?---It was apparent in what she said.
PN1126
THE COMMISSIONER: No, no, no, no. Answer the question?---No.
PN1127
MR D’ABACO: Indeed, you did return to that position when you returned from maternity leave on 29 March, as you’ve testified earlier today, didn’t you?---On a temporary basis, yes.
PN1128
Who told you that you were returning on a temporary basis?---The position had been advertised.
PN1129
Who told you, Ms Robertson, that you were returning to your position as Manager, Out of Home Care and Specialist Support, a VPS6 level 1 position, on a temporary basis?---Mr Hall.
PN1130
I’m sorry?---Mr Hall.
PN1131
When did he tell you that?---In his email of I think it’s dated in January. He said, “You will go back to that position until the other position is filled”.
PN1132
I am taking the witness to attachment AGH3, this is attachment 3 to the first witness statement of Mr Hall.
PN1133
THE COMMISSIONER: Yes.
**** JANICE ROBERTSON XXN MR D'ABACO
PN1134
MR D’ABACO: Is that the email that you just referred to a few moments ago?
---No. There’s another one.
PN1135
All right. Can I have that document back, please?
PN1136
I am taking the witness to attachment AGH5 to Mr Hall’s first witness statement, Commissioner.
PN1137
THE COMMISSIONER: Yes.
PN1138
MR D’ABACO: Is that the witness statement you’re referring to?---Yes.
PN1139
Where does it say that you were returning to your position of Manager, Out of Home Care and Specialist Support on a temporary basis?---In the third paragraph:
PN1140
Your responsibilities will need to change.
PN1141
Yes? There’s nothing there about returning to the VPS6 position on a temporary basis, is there?---If you read that email - - -
PN1142
So you read the third paragraph as meaning that you would be returning on a temporary basis? Is that the interpretation you have taken of that paragraph?---If you read the entire email, yes.
PN1143
All right - - -
PN1144
THE COMMISSIONER: Well, that’s the interpretation you placed on it, Ms Robertson?---Yes, yes.
PN1145
MR D’ABACO: Can I have the document back, please?
PN1146
THE COMMISSIONER: Well, that will be a matter for submission, then.
PN1147
THE WITNESS: Yes. And the fourth paragraph where it says the role would need to be changed.
PN1148
MR D’ABACO: So this was an email which you received on 10 March, is that correct?---If that’s what it’s dated, yes.
**** JANICE ROBERTSON XXN MR D'ABACO
PN1149
You were on sick leave during that period?---No, 10 March I was on maternity leave.
PN1150
I’m sorry, I’m sorry.
PN1151
THE COMMISSIONER: I might just let you know, we’re looking for the parties for my 4 o’clock matter and trying to convene them in another space. So when my associate tells me that they’re here, we’ll adjourn.
PN1152
MR D’ABACO: Now, you say that you were shocked and disappointed and hurt. When did those feelings take place, Ms Callister[sic]?---Robertson.
PN1153
I’m sorry, Ms Robertson.
PN1154
THE COMMISSIONER: It’s all right. Everyone’s allowed to have a lapse late in the day.
PN1155
THE WITNESS: When I’d fully absorbed and - the ramifications of what Ms Callister had said.
PN1156
MR D’ABACO: Was that before you took notes of the discussion?---I wrote the notes fairly quickly after the conversation, because it - it was hurried, I actually wanted to think it through properly, I didn’t think my recollection would be - have - given that I’d been at home for quite a while, maybe it wasn’t as good as it had been in the past, so I wrote the notes, but it was - it was feeling that - the feelings that developed over the next 24 hours, really.
PN1157
All right. Those notes which you took, which are attached to your second statement as attachment JR9 - perhaps if you can just answer the question and stop looking at papers for the moment? I want you to know what I ask you; was that a comprehensive record of what took place during that discussion?---It’s a summary. It wasn’t a record of the discussion. It’s a summary of the discussion based on my recollection, when I wrote the notes.
PN1158
All right. In preparing your first witness statement, did you have recourse to those notes?---I had access to the notes. I don’t recall having them in front of me as I was doing my witness statement, but I had access certainly.
PN1159
Is it possible that there were other things which Ms Callister referred to during the course of that meeting which you didn’t include in those notes?---There - as I said, it wasn’t a full record, it was a summary of what I took to be the pertinent issues. So if there was anything to which she referred that were less relevant in my interpretation, then I may not have included them, no.
**** JANICE ROBERTSON XXN MR D'ABACO
PN1160
Ms Robertson, how long did that conversation take?---Including - including the initial chat, I think it only was - it was - I mean, I was conscious that she and Tim finish up and - - -
PN1161
THE COMMISSIONER: This was late on a Friday, was it not?---Yes.
PN1162
And that was her last day before she went away?---Her last day, and I know she was anxious to have the conversation because I know she was - when she’d got off the phone from the previous conversation, she came immediately in and got the call transferred. It was probably, you know, with the - - -
PN1163
The pleasantries?---The chat, it was probably no more than 10 minutes. I mean, maybe - it wasn’t very long. It wasn’t long at all. No, it wasn’t long.
PN1164
So you think 10 minutes, possibly 15 minutes at the most?---It certainly - yes, it certainly wasn’t a long, detailed discussion.
PN1165
MR D’ABACO: Could I ask you to go to your notes in your second statement, attached JR9? Do you have a copy of those in front of you?---No. I probably do.
PN1166
I’d ask you to look at this document?---Thank you.
PN1167
It’s a copy of the notes which are attached as JR9 to your second witness statement?---Yes.
PN1168
You write there in the notes that a decision had been made to upgrade the position and that there had been an executive officer position available in the northern and western regions. Do you see that?---Yes.
PN1169
Now, you don’t refer in those notes to Ms Callister saying that there had been a restructure of the work area in 2003 which had assigned additional responsibilities and so forth to the role? There’s no reference to that in these notes?---Only because it wasn’t new information. Yes, you’re right, there’s no reference.
PN1170
But you - - -?---To information I knew of, yes.
PN1171
You accept, I think, and you agreed with me earlier today that Ms Callister did discuss those issues with you when she contacted you on 9 January?---She referred to the restructure in 2003. Yes.
**** JANICE ROBERTSON XXN MR D'ABACO
PN1172
All right. You say there that she also referred - you say in your notes to the ministerial advisory committee?---Yes.
PN1173
Yes, and that also accords with your recollection - - -?---Yes.
PN1174
- - - when you answered my questions today? Now, you didn’t refer in those notes to the creation of the role of the advocate
for children in out of home care?
---No.
PN1175
But I think you agreed with me earlier today that they were matters which were referred to, or was a matter referred to by Ms Callister
when she spoke to you?
---She did refer, but again, that was something I had previous knowledge of. The ministerial advisory committee, I didn’t.
PN1176
All right. And I think you gave evidence earlier today that those notes which you have prepared were a summary of what in fact took place during your discussion with Ms Callister, is that correct?---A summary, yes, primarily based on the new - and the new information that I - and not the information I already had.
PN1177
All right, but that there was other information which she conveyed to you which you didn’t write down in the form of notes?---Yes, but confined to what I think I’ve already discussed.
PN1178
THE COMMISSIONER: How much longer would you like to go now, Mr D’Abaco?
PN1179
MR D’ABACO: I have a considerable amount of - - -
PN1180
THE COMMISSIONER: No, that’s fine. I think we should adjourn at that stage. My parties have arrived for my 4 o’clock matter now, so I think that’s probably as good a time as any to adjourn. Would you like to reconvene at 9.30 or 10? Whatever suits you?
PN1181
MR D’ABACO: That’s suitable for us.
PN1182
THE COMMISSIONER: Yes, all right.
PN1183
MR D’ABACO: Can I just ask, Commissioner, given that the witness is in the course of cross-examination, that she be reminded in the customary manner of her obligations in that regard?
**** JANICE ROBERTSON XXN MR D'ABACO
PN1184
THE COMMISSIONER: Yes, yes, yes. Don’t discuss the case with anybody overnight, thanks, Ms Robertson.
PN1185
THE COMMISSIONER: Yes. Thank you. We will now adjourn.
<ADJOURNED UNTIL TUESDAY 13 SEPTEMBER 2005 [4.07PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #CPSU1 OUTLINE OF SUBMISSIONS PN446
EXHIBIT #CPSU2 WITNESS STATEMENT OF JANICE ROBERTSON PN447
JANICE ROBERTSON, SWORN PN451
EXHIBIT #CPSU3 SUPPLEMENTARY WITNESS STATEMENT OF JANICE ROBERTSON DATED 12/08/2005 PN458
EXAMINATION-IN-CHIEF BY MR BACKWELL PN458
CROSS-EXAMINATION BY MR D'ABACO PN948
THE WITNESS WITHDREW PN1184
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