C2005/2376, Transcript of Proceedings [2005] AIRCTrans 2246 (27 October 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 13184-1

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

4.13PM, FRIDAY, 14 OCTOBER 2005

Continued from 15/9/2005

Reserved for Decision

PN4069

THE COMMISSIONER: Yes, Mr Backwell.

PN4070

MR BACKWELL: Yes, if the Commission pleases, we'll move into our final submissions. Sir, I don't obviously intend to go through the submissions we have filed and lodged. It is there for your consideration. I will - - -

PN4071

THE COMMISSIONER: Yes, there's no need to repeat what you have got.

PN4072

MR BACKWELL: No.

PN4073

THE COMMISSIONER: But I will have you tender the file submission.

PN4074

MR BACKWELL: Yes, sir, yes.

PN4075

THE COMMISSIONER: Yes, thank you.

PN4076

MR BACKWELL: If I may move to even tender that formally at this point, sir.

EXHIBIT #CPSU5 FINAL SUBMISSIONS OF MR BACKWELL

PN4077

THE COMMISSIONER: Yes, thank you.

PN4078

MR BACKWELL: Thank you, sir. I will hand up if I may the cases that are referred to in that final submission and have been made available to my friend.

PN4079

THE COMMISSIONER: Yes, thank you.

PN4080

MR BACKWELL: Sir, I think that if I might just provide some very broad overview comments and address some matters that are within the respondent's submission and perhaps assist the Commission to where answers to the submissions of the respondent may be found within our submission or within other evidence and material for your assistance.

PN4081

THE COMMISSIONER: Yes.

PN4082

MR BACKWELL: Sir, if we just look at it in a very overall perspective clearly the parties are poles apart in relation to the legal approach but also a lot on the evidence. The DHS is relying on a temporal approach if you like, looking at the issue of the dates and saying that they have discharged their duties. Our answers to that, sir, are in paragraph 107 and 108 of our submission, final submission, and I would also just like to make these two very brief comments. The matters in relation to this timing should have been sought to be adjudicated in the jurisdictional hearing or at the commencement of the substantive hearing.

PN4083

If the DHS submission is true then almost all of the material that's been put before this Commission is irrelevant and the CPSU claim is based upon a breach of an alleged provision. If this didn't apply then what have we been here for? We have submitted that in our final submission that at all times the DHS have been active in relation to the operation of the WRA and certainly the process that led to the situation we're in commenced during the maternity leave times.

PN4084

THE COMMISSIONER: Sorry, Mr Backwell.

PN4085

MR BACKWELL: Yes, sir.

PN4086

THE COMMISSIONER: Look, I note you have also sent answers to a number of questions that I asked both the CPSU and yourselves. Would you like to formally tender your answers to those questions as well?

PN4087

MR BACKWELL: Yes, thank you, sir. Yes, if I may formally tender the document entitled Answers to the Questions.

PN4088

THE COMMISSIONER: Yes, thank you.

EXHIBIT #CPSU6 ANSWERS TO QUESTIONS FROM THE COMMISSION

PN4089

THE COMMISSIONER: Does Mr D'Abaco have a copy of those?

PN4090

MR BACKWELL: Yes.

PN4091

THE COMMISSIONER: Yes, thank you. Yes.

PN4092

MR BACKWELL: Commissioner, also in relation to this issue of timing, it is not consistent in relation to future harmonious relations between the CPSU and the DHS in that this is a dispute arising from an agreement between those two parties. The disputes procedure in the certified agreement should be approached and as a matter of sorting out differences in opinions shouldn't be approached in an overly legalistic manner and we therefore urge you to be cognisant of the evidence - actually I'm repeating myself, that the DHS has in evidence submitted that they have acted at all times under the WRA.

PN4093

Sir, if we were to look at the CPSU if I made an overall comment it is that we are relying on an interpretation of the Workplace Relations Act to support our claim. This interpretation is important to believe it has a precedent in case law. We also believe it has merit in relation to this case. I won't go into the matter as it is within our submission but to say that it will obviously have an important implication to the way that these provisions may be read in the future as that there has not been an extraordinary amount of case law in relation to schedule 14 of the Workplace Relations Act.

PN4094

Sir, there's just a number of very specific issues that I wish to use this hearing to articulate. In relation to our submission which is labelled as 1(b) I wish to pause on this for a short moment. We leave the analogy of non genuine redundancy just as that, as an analogy rather than specifically applicable to the case at hand. Redundancy cases spend considerable amount of time talking about the word position so they may be instructive, but we mention the process of - or the issue of non genuine redundancy in relation to specifically the claim and submission by the respondent that the higher burden of proof will be required in relation to our submission in 1(b) and my friend has put forward Briginshaw v Briginshaw.

PN4095

To that we would answer that if we were to use the non genuine redundancy aspects as an analogy there is no level of test of that requirement of the Briginshaw v Briginshaw within that. Now, to the DHSs submission, paragraph 25, this relates to a question of relevance of evidence. To this submission the CPSU replies that Ms Robertson has been involved in the area since 1999 which is less than Ms Callister. The CPSU submits that Ms Robertson is very qualified to give an assessment as to the nature of the positions that are in question.

PN4096

In relation to paragraph 33 to 37 we would like to draw your attention, sir, to transcript PN745 to 770, PN2817 to 2821 and PN2861. These are in regard to the bullying issues. The CPSU agrees that this is not part of the 170LW application. However, it has been included in evidence as a demonstration of the environment in the period in question. Ms Robertson's evidence details her experiences including isolation, conflicting information, humiliation, intimidation and undermining. The allegations if the Commission finds on the balance of probability that it had occurred, constitute unacceptable behaviour we'd seek no particular finding or order in that but we do say that it is relevant for your considerations to the background of how we have entered into this situation.

PN4097

We would of course submit that those sort of behaviours would amount to the concept of bullying, repeated unreasonable behaviour has an occupational health and safety concern, bullying of a person in a vulnerable situation that arises from her maternity leave and proposed changes to her work environment with inadequate consultation and information. Paragraph 50, in relation to the statement that the position, the VP6 position was anomalous within the nature of staffing, that it had an extraordinary number of staff and therefore it is anomalous if needed to be tackled.

PN4098

Sir, the situation arose from a very long thought out restructure that involved the senior members of the DHS. It took four months. It came with a structure which we assume that they were quite happy. To propose that it is otherwise seems to reflect to the CPSU that the restructuring is done in an inappropriate way in the DHS. The other issue that's important about concept of the anomalous structure in paragraph 50 is that the matter is irrelevant in relation to the Workplace Relations Act and the provisions thereof. The schedule 14 provisions go to the position that the mother held and if it no longer exists then the position nearest in status and remuneration of that position, not a generic position or otherwise, it was that position that is before you, sir.

PN4099

Now, sir, I would like to actually spend a very short time talking one off our favourites in the Commission, re AEU, and there has been consideration of it in regards to the DHS submissions and we need to answer those points. The DHS is relying on the words senior officer holders in the submission and that re AEU prevents the Commission from making an order that the CPSU is seeking. To that we reply that this requires some analysis and it's our submission that the High Court did not define senior officer holders as being executive officers within the concept that we have been considering and if we look closely to the decision we do see that the previous paragraph relied on by the DHS within their submission, if I might just quickly take you to it, sir.

PN4100

Sir, I am going from page 20 of the DHS final submissions which is paragraph 40 of the reply. But it makes the comments:

PN4101

Hence minister, ministerial advisers and advisers, heads of departments and high level statutory office holders, parliamentary officers and judges would clearly fall within this group.

PN4102

We suggest that if you read that in relation to the latter phrase senior office holders then that is what the High Court was mentioning. They weren't adding another group in, they were just reiterating the concept of high level statutory office holders and they are of course people that are subject to the ombudsman.

PN4103

THE COMMISSIONER: The Commission is an Industrial Relations Commission.

PN4104

MR BACKWELL: Yes, sir, and hopefully for longer, depending on what the future outcomes in the parliament.

PN4105

THE COMMISSIONER: Well, I will be here long enough to make a decision about this matter anyway, Mr Backwell.

PN4106

MR BACKWELL: Yes. So really it is not as perhaps clear cut as the DHS would have it. There are some ambiguities, albeit with all respect to their Honours, as the one I've just considered above, plus also importantly in re AEU it does say things like that many aspects were not considered and they were left for later discussion and I can refer you to paragraph 50 of that decision which is on page 23 of the copy that I handed up. Clearly the High Court was not making total definitive positions as he could not have in that case.

PN4107

So the final reason why we would say that our reading of re AEU is important and is the correct one is to look at the whole purpose of the implied limitation of the constitution as re AEU found it and the implied limitation is to protect the state's capacity to function as a government. The CPSU submits that the capacity of the Commission to arbitrate on a dispute involving clause 14 of the Workplace Relations Act is not one that's going to affect the capacity of the state to function as a government. Sir, just to assist you further in meeting some of the points that are within the DHS submissions so that you may consider them against where ours are and this is just, as I say, an assistance, in regards to paragraphs 20 to 28 of the DHS submission I refer you to paragraphs 41 to 69 of our submission.

PN4108

In regards to paragraphs 29 to 32 we refer you to paragraphs 72 to 83 of our submission. I have mentioned already the issue of the bullying ones and re AEU we have covered. In relation to status and remuneration there is one very specific point that we would like to raise which is the statement that the nearest in status and remuneration somehow contemplates an inferior in terms and - sorry, in terms of both status and remuneration and we would then submit that the Illawarra Council case which we referred to in our letters, clearly answers that issue.

PN4109

So in relation to paragraphs 42 to 52 of the DHS submission you will find our approach in paragraphs 89 to 102, paragraph ..... in relation to the Illawarra Council decision that I've mentioned. Sir, I'm of course available for questions should you have any.

PN4110

THE COMMISSIONER: Yes, thank you. Yes, thank you, Mr D'Abaco.

PN4111

MR D'ABACO: Thank you, sir. May I formally tender the closing on behalf of the respondent?

PN4112

THE COMMISSIONER: Yes, I will mark those.
MR D'ABACO: And annexed to that, sir, should also be a document entitled Chronology of Respondent's Evidence which I don't believe that requires a separate exhibit number, that can be attached. It's referred to at paragraph 9 of the submissions, Commissioner. And may I also formally - - -

PN4113

THE COMMISSIONER: Yes, just a moment. I might mark that DHS20.

EXHIBIT #DHS19 CLOSING SUBMISSIONS AND CHRONOLOGY OF RESPONDENT'S EVIDENCE

PN4114

MR D'ABACO: Finally if I can tender the further closing submissions in response to your questions?

PN4115

THE COMMISSIONER: Yes, thank you. You have got those there, do you?

PN4116

MR D'ABACO: Yes. Do you have a copy before you, sir?

PN4117

THE COMMISSIONER: No, I don't.

PN4118

MR D'ABACO: If you would just bear with one moment. I understand that it was emailed to you by your associate.

PN4119

THE COMMISSIONER: No, we have been tied up in a case, that's probably waylaid it.

PN4120

MR D'ABACO: Sir, I will formally tender the copy that I have. If I could mark that as an exhibit? I will hand that to you, sir.

PN4121

THE COMMISSIONER: Yes.

EXHIBIT #DHS21 RESPONSE TO QUESTIONS FROM THE COMMISSION

PN4122

THE COMMISSIONER: Yes, Mr D'Abaco.

PN4123

MR D'ABACO: Finally, sir, can I hand up a series of authorities. These are copies of the authorities we have referred to in exhibit DHS19. I have provided a copy to Mr Backwell.

PN4124

THE COMMISSIONER: Yes, thank you.

PN4125

MR D'ABACO: Sir, I propose to adopt the same approach which has been approached by my friend. Exhibit DHS19 sets out in some detail the submissions on behalf of the respondent and in particular we have gone to some lengths to analyse the evidence and I will have references to transcript to support the arguments which we advanced therein.

PN4126

THE COMMISSIONER: Yes.

PN4127

MR D'ABACO: Unless the Commission has any questions in particular to those submissions I don't propose to address them in terms. What I propose to do this afternoon is to take you to exhibit CPSU5, the final submissions which have been filed on behalf of the applicant and to indicate our points of disagreement with those, sir.

PN4128

THE COMMISSIONER: Yes.

PN4129

MR D'ABACO: Paragraph 16 of the CPSUs submissions says that one of the basic questions which is to be answered for the purpose of this application is whether Ms Robertson's position still exists and the submissions proceed on that basis and then proceed to analyse that particular basic question.

PN4130

THE COMMISSIONER: Yes.

PN4131

MR D'ABACO: The submission of the respondent is that the issue is not whether Ms Robertson's position still exists today or whether Ms Robertson's position existed at the time when this application was brought before the Commission. The question to be asked is whether Ms Robertson's former position of manager out of home care and specialist services existed at the time when she returned from maternity leave, ie. 29 March 2004.

PN4132

THE COMMISSIONER: Well, can I just say, Mr D'Abaco and Mr Backwell, the question I ask is, and the purpose of the questions that I sent out is it appears from all of the prior submissions that indeed it appears now from exhibit CPSU6 and DHS21 that Ms Robertson's position at 29 March 2003 was manager service developments, VPS5 with a remuneration of $80,869.

PN4133

MR D'ABACO: Yes, that's correct, sir, and as both the respondent and the applicant have indicated to you in the questions which have been answered there was a retitling of the position.

PN4134

THE COMMISSIONER: No, but if I look at the wording of the relevant provisions of the legislation I'm pointed to the position which she held at the time she went on maternity leave.

PN4135

MR D'ABACO: Yes.

PN4136

THE COMMISSIONER: That was the position of manager service development at the level of VPS5.

PN4137

MR D'ABACO: Yes.

PN4138

THE COMMISSIONER: Subsequent to her going on maternity leave on all of the evidence, the title of the position changed, the level of the position changed and the duties of the position changed and when she returned from maternity leave on 29 March 2004 she went into a position of manager out of home care
and specialist support at the VPS6 level with a different array of duties, or a broader range of duties than were held by the manager service development at
29 March 2003.

PN4139

MR D'ABACO: Yes, and the evidence which fell out from both parties and to this extent my reflection is that it's no great difference, is that the process of the retitling of the position firstly was to a large extent a consolidation of what had already occurred up until that time.

PN4140

THE COMMISSIONER: All right. But is it your submission, and I'm interested in Mr Backwell's response to this, that the position nearest in status and remuneration to the position of manager service development, VPS5, at 29 March 2003, at 29 March 2004 was the position of manager out of home care and specialist support at the VPS6 level.

PN4141

MR D'ABACO: Yes, that is the submission of the respondent and that was the position to which Ms Robertson was returned.

PN4142

THE COMMISSIONER: Yes. Mr Backwell, what do you say with regard to that particular - - -

PN4143

MR BACKWELL: Sir, our position is that a positive position should be looked at in relation to the duties and that the shaping of it in relation to the titling or otherwise is not he focus of what the Workplace Relations Act refers to. Rather we say that the position still existed as a discrete set of duties.

PN4144

THE COMMISSIONER: No, the position she held you have agreed in your response to my questions, as you have outlined in exhibit CPS6, is the position title she held at the time she went on maternity leave on 29 March 2003 was manager service development. That's your evidence, isn't it? And that's her evidence, that's the evidence. The reason I have asked the question is because there were inconsistencies in the evidence but it appeared clear to me that that's what the evidence really in the end was saying, the change of title after she went on maternity leave.

PN4145

MR BACKWELL: Sir, I suppose the defining point there might be the issue of position title as opposed to the position as defined within the Workplace Relations Act section 14.

PN4146

THE COMMISSIONER: Yes.

PN4147

MR BACKWELL: Sir, we submit that the reading should be in accordance with the case law that we have referred to, that the position is a discrete set of duties but the labelling of it may very well change but that we should be looking at what is those discrete set of duties.

PN4148

THE COMMISSIONER: Yes. Well, the other thing which I think is common to both parties is that there is no duty statement available for the position of manager service development.

PN4149

MR BACKWELL: Yes, sir, and my instructions are that there was attempted to be found under freedom of information and it was not delivered and although I would say that this needs confirmation from the DHS, is that they are unable to locate one - - -

PN4150

THE COMMISSIONER: Yes, a response to exhibit DHS21, the response is:

PN4151

The respondent is unable to locate a position description for the manager service development position.

PN4152

So the only position description I have is the position description that was developed for the position of manager out of home care and specialist support. I think, Mr D'Abaco, that's the evidence before me, isn't it?

PN4153

MR D'ABACO: Yes, that's correct, sir.

PN4154

THE COMMISSIONER: Yes. Mr Backwell, do you agree that's the evidence before me?

PN4155

MR BACKWELL: Yes, sir.

PN4156

THE COMMISSIONER: Yes, fine, thank you. Sorry, Mr D'Abaco, it's just I just have to deal with the facts as they are.

PN4157

MR D'ABACO: Yes. Well, in respect to the questions which the Commission has asked and to return to point 1 of paragraph 16 of the applicant's submissions, what is submitted on behalf of the department is at the relevant point in time which the Commission is required to be concerned for in discharging its obligation to resolve a dispute regarding the application of the agreement is the time at which Ms Robertson returned from her period of maternity leave.

PN4158

THE COMMISSIONER: Well, actually strictly speaking I think that the legislation points me to two dates, the date she went on maternity leave and the date she returned.

PN4159

MR D'ABACO: Yes, that's right, sir, but the application alleges that the breach of the agreement as it were took place at the time of maternity leave.

PN4160

THE COMMISSIONER: Well, that's right.

PN4161

MR D'ABACO: Yes. And we say, sir, that in those circumstances at that point in time Ms Robertson did return to the position which was nearest available in status for remuneration as she left some 12 months previously and we go on to submit that Ms Robertson continued to occupy that position and discharged the duties of those positions, the exception of when she was on periods of sick leave, for a period of over two months and she continued to do so until 6 June 2004. Now, in paragraph 19 of the CPSUs submissions it is submitted that if the Commission does not accept the basic proposition which is advanced by the CPSU and that is she did not return to her former position, that the Commission should be able to find or ought nominate another position which is nearest available to the status of remuneration and the position which is proffered by the applicant is the position of manager placement and support.

PN4162

Now, this requires some analysis, sir. The respondent does not deny and has never denied that a fundamental component of the executive officer position are some of the management and responsibilities and duties which were undertaken in a former VPS6 position.

PN4163

THE COMMISSIONER: In the position of manager out of home care specialist support.

PN4164

MR D'ABACO: Correct, sir.

PN4165

THE COMMISSIONER: As indicated in the duty statement for that position.

PN4166

MR D'ABACO: That's correct. But what we go on further to say, sir, is that the executive officer position, and you will recall this is the substance of some evidence by Mr Hall which is referred to in our submissions, that the new position involved a level of executive management, leadership and participation in the management of the affairs of the particular division which was not the case in respect of the former position. Moreover we say that it cannot be sustained or cannot be argued by the applicant that the executive officer position with a salary of some $20,000 - a greater salary of $20,000, a position which is not covered by the terms of the relevant 2004 VPS agreement can be the position which is the nearest available in terms of remuneration and status.

PN4167

At paragraph 25 of the CPSUs submissions my friend makes reference to the purpose of clause 12 of the maternity leave provisions and in particular says that the purpose of the provision is to restore the status quo ante. I don't ..... rough but I think ante means beforehand. That status quo, sir, must be the status quo at the time of the departure of the employee on maternity leave and in this case 29 March 2003, but what is being sought by the applicant in this case is not to restore that status quo. It is in fact to restore a position or restore a situation where
Ms Robertson were to be appointed to an executive officer position which is a position she has never occupied and indeed you will recall the evidence, although she made application for it, ultimately chose not to attend an interview and when she was informed that her application was unsuccessful she conceded that that was no surprise to her.

PN4168

We say, sir, in those circumstances the principal obligation which fell upon the respondent pursuant to the relevant maternity leave provisions was discharged. At page of the CPSU positions - - -

PN4169

THE COMMISSIONER: Well, you say in fact that the position of the requirement of DHS was discharged on 29 March 2004.

PN4170

MR D'ABACO: That's correct, sir. At the top of page 5 of CPSU5 the question is posed by my friend:

PN4171

Does Ms Robertson's position still exist and if it does then she should return to it in accordance with the Act.

PN4172

As I have submitted, sir, that is not the relevant issue. It is not a matter for the Commission and indeed evidence wasn't led to the extent of whether the former position of the VPS5 position continues to exist now some almost three years after the event. The relevant point of time for the Commission's consideration is in my submission March 2004. The applicant in its submissions has taken the Commission to a number of authorities in relation to the approach which you ought to adopt in considering the term position and essentially, sir, we're in agreement with those authorities. We don't take any point to them and we agree that broadly those are the correct principles.

PN4173

But where we do take issue with the applicant is a statement which is contained at the top of page 5 of CPS5 where the CPSU invites the Commission to consider the phrase no longer exists and to interpret that in the following terms, in relation to a position that would mean that the duties and the task of the job no longer exists. Now, what we say, sir, is that there is no doubt that a number of the duties and tasks of the position which Ms Robertson formally occupies, VPS5/VPS6 position, do continue to exist and a large component of those duties are being performed by the incumbent of the executive officer level 3 position. But by simply saying that the duties and tasks and continue to exist and hence the position continues to exist is in our submission a simplistic argument and an argument which should not be accepted.

PN4174

My friend has submitted it by way of analogy that the Commission can have account to redundancy situations. Can I hand to your Honour a copy a decision of Moore J of the Federal Court. It's a decision of the Finance Sector Union of Australia v Commonwealth Bank of Australia. I don't have an authorised copy I'm afraid, sir. If I could ask you, sir, to turn in particular to paragraph 81 of the decision. What his Honour was considering at that point in time, sir, was the situation where there will be many instances where in what are characterised as redundancy situations the actual duties which are performed the employee in their position continue to exist and must still be performed on behalf of the employer, but the employer makes a decision that those duties and tasks may well be performed by other employees which result in the redundancy of the former employee who is performing those duties.

PN4175

The fact that the duties and responsibilities continue to exist into the future does not mean as a matter of night following day that as a result the position is no longer redundant and his Honour makes that very clear, we say, in paragraph 81. We say that in response to the submission which was put by the applicant, the fact that an element of duties and responsibilities formerly performed by
Ms Robertson continue to exist, continue to need to be performed and are still being performed does not mean that the position she performed when she was performing some of those duties must be the same position as the position where those duties and responsibilities are now being performed. There's a clear change.

PN4176

It's interesting to note, sir, that in the submissions which have been advanced on behalf of the applicant there was no analysis whatsoever of the situation which existed following Ms Robertson's return from maternity leave on 29 March 2004. Certainly that was the subject of evidence in relation to the allegations of harassment and bullying and I won't detail those or deal with those specifics, we have dealt with those in the submissions, but there's also evidence that
Ms Robertson continued to perform the duties and responsibilities of the VPS6 position.

PN4177

That is not dealt with at all in the submissions which have been filed on behalf of the applicant and we say that your Honour should take account of that in considering the submissions which are ultimately put before you. We say it goes to the essential issue as to whether the department fulfilled its obligations at the time when those obligations arose, ie. on 29 March 2004. At paragraph 72 of the submissions it is put that the legislation must provide protection against non genuine or unreasonable changes in work practices. Again, we don't cavil with that proposition.

PN4178

What we do take issue with however is what goes on from there where it's submitted by the applicant that the procedure of creating the executive officer position was, to use a term which arose during the proceedings, of sham, or to put it the way which is now being put by the applicant, it was an endeavour to avoid the obligations contained in schedule 14, in particular clause 12. The respondent takes issue with that argument. We say that there is no evidence before the Commission where you can be reasonably satisfied that the process followed in the creation and fitting the executive officer position was other than a genuine and proper process.

PN4179

There is no evidence whatsoever of any form of collusion or conspiracy to deny Ms Robertson her rights pursuant to the agreement and the Act and indeed those sorts of allegations were not put to either Ms Callister or Mr Hall and one would expect that as a matter of fairness those allegations need to be put to them for them to have the opportunity to respond to them and they weren't. The applicant says that there was a failure to consult. You may recall, Commissioner, and this was subject to some questions which you raised of Mr Hall on the final day, we say and the evidence indicates that approval for the creation of the executive officer position was granted on 29 November 2004 and consultation, the respondent submits, in accordance with the agreement commenced at the beginning of January through the telephone call which Ms Callister made to
Ms Robertson - - -

PN4180

THE COMMISSIONER: Yes, at the very moment that Ms Callister was going.

PN4181

MR D'ABACO: Yes.

PN4182

THE COMMISSIONER: Would be away for five weeks and wouldn't be able to have any further conversation - - -

PN4183

MR D'ABACO: No, we appreciate that, sir.

PN4184

THE COMMISSIONER: For five weeks, yes.

PN4185

MR D'ABACO: Yes, and that may well have been the circumstances that would have been desirable time to be given, but - - -

PN4186

THE COMMISSIONER: I don't think Mr Hall's evidence, Mr D'Abaco, was that it would really have been appropriate that the requisite consultation with
Ms Robertson to have occurred really any time from 29 November.

PN4187

MR D'ABACO: That's correct, sir, and we say that immediately or shortly after the discussion which was held between Ms Callister and Ms Robertson on
9 January 2004 there was a number of items of correspondence, both by way of letters and emails which passed between Ms McKinnon on behalf of the department and Ms Robertson and then following on from that, Mr Hall and
Ms Robertson.

PN4188

THE COMMISSIONER: Well, whatever else I might find, I don't find that the department had initiated the requisite discussions required by the agreement with Ms Robertson in a particularly timely fashion. But what bearing that has on my decision in this matter I don't know.

PN4189

MR D'ABACO: Well, in my submission, sir, it ought have limited if any bearing on your decision in circumstances where the applicant has expressly pursued any argument that this application has as part of its consideration any alleged breach of the agreement in respect of consultation, that was expressly pursued by my friend during the running of the matter and nothing contrary has been indicated today.

PN4190

THE COMMISSIONER: Yes, because I know Mr Hall is a very experience person in these matters I just hope that they come forward in future in such situations that the consultation will occur in a timely fashion, because that's part of what comes out of these cases, is that we all learn to do our jobs better.

PN4191

MR D'ABACO: Yes. Well, we would say - - -

PN4192

THE COMMISSIONER: What bearing that has on this case is another matter.

PN4193

MR D'ABACO: Yes. Well, we would say this, the Commission should have regard to what we submit was certainly appropriate and timely and quite comprehensive consultation after 9 January and what transpired from that and what utility if any did it have in resolving the concerns which Ms Robertson had and that had the process commenced on 30 November or 1 December there's obviously no evidence before the Commission ..... speculation. We would say that ultimately it probably wouldn't have made a difference to the ultimate result and what ultimately transpired.

PN4194

THE COMMISSIONER: No. I just make the observation of course that that very long period of time simply allows more time for gossip than speculation to develop rather than - - -

PN4195

MR D'ABACO: Well, that may be the case, sir, but I don't think there's any suggestion certainly from Ms Robertson that that was the case here, that she had received rumours ..... in the time from 29 November when she was first contacted by Ms Callister on 9 January.

PN4196

THE COMMISSIONER: No. Well, Mr Clements had been in touch with her.

PN4197

MR D'ABACO: Yes, that's correct.

PN4198

THE COMMISSIONER: And he had more information than Ms Robertson did when he got in touch with her.

PN4199

MR D'ABACO: Well, that was simply, we would say, sir, by virtue of the fact that Ms Callister spoke to him first rather than speaking to Ms Robertson first, in circumstances where Mr Clements was in the workplace. That may well not be a surprising result.

PN4200

THE COMMISSIONER: My observation is just about the way these things are handled.

PN4201

MR D'ABACO: Yes, certainly, sir. I appreciate what you're putting to me. In relation to paragraph 75 of the CPSU submissions it is put that there was lack of consultation, mixed message and deliberate or accidental delay in finally appointing Mr Clements and that that leads to a conclusion that the actions of the department were taken to avoid the obligations under the Workplace Relations Act. We take issue with each of those propositions, sir, and I've already taken you to the issue of the lack of consultation. In relation to the mixed messages we say that the Commission can have regard to the written correspondence which followed 9 January when we say is abundantly and unequivocally clear there are no mixed messages.

PN4202

The deliberate or accidental delay in finally appointing Mr Clements, we're not quite certain what that refers to. What he is referring to is the delay between the announcement of the successful applicant in June and he's finally appointed in August. The reason for that is because of the grievance hearing which had been lodged by Ms Robertson. If it's in relation to the delay from 9 January to the appointment in June that was because the respondent was bending over backwards to try to get Ms Robertson to attend an interview and to pursue and continue with her application for the position, that there are any delays we say they were entirely the responsibility of Ms Robertson, certainly not the responsibility of the department.

PN4203

We say that none of those items either singularly or in conjunction lead to any conclusion that the department was endeavouring to avoid its obligations pursuant to the Act. Paragraphs 95 and following the applicant deals with the issue of a return to the nearest position, the position nearest in status in remuneration and they take the Commission to the authorities of Thompson ..... Firstly we say in respect of those authorities, sir, is that those authorities are in the context of sexual harassment and ..... complaint pursuant to federal legislation, the Sex Discrimination Act in particular, and we say, sir, that those authorities are of very, very limited assistance if any to the Commission because clause 12 does not have you inserting that magical word comparable and we say that on that basis the Commission is not required to actually compare positions as is suggested in those cases.

PN4204

But we go further and we say this, that the positions which were offered to
Ms Robertson upon her being informed that the position which she formerly occupied, the VPS6 position, would no longer continue to exist in that current guise because of ..... new position and this is some two and a half months after she had returned from maternity leave, we say that the position which were offered to her were certainly the nearest available remuneration, the VPS6 level with the rate of remuneration accompanied with that. Certainly also we submit, say in terms of status in terms of reporting relationships and in terms of the responsibilities and duties involved and we refer in particular to three of the positions which were offered, the positions of manager support services unit, manger family services and principal policy adviser, which whilst having a differing staffing complement we say were in her area of expertise, were positions reporting to a director level and otherwise had similar attributes to the position which she formerly occupied.

PN4205

At paragraph 101 of the CPSUs submissions the applicant turns to the issue of what would be the consequences or result of its order. It's a request for an order that Ms Robertson be appointed to the executive officer position of manager placement and support and they say that, well, that's a matter for the department to have regard to and view that that shouldn't provide any impediment whatsoever to the Commission in so ordering. The respondent's submission is that that is a flippant submission and that in exercising its discretion the Commission ought have regard to the fact that Mr Clements has now been occupying that position for in excess of 15 months.

PN4206

Ms Robertson obviously has not been in that position for that period of time, she's never been in that position, and in circumstances where Ms Robertson did not attend the second interview for the position and freely conceded in evidence that she wasn't surprised when she was told she was not the successful appointee, it would be a travesty of the selection process and the merits assessment taken by the respondent for her to expect the Commission to so order in circumstances where the Commission has not had the opportunity to consider all the various applicants, to make a competing assessment and to determine who is the appropriate person for that.

PN4207

The selection panel has made the decision and unless Ms Robertson could indicate and show that there was a clear breach of the Act, and we say there wasn't, to grant this sort of order which is sought we would say would be highly inappropriate.

PN4208

THE COMMISSIONER: Mr D'Abaco, I think my understanding from the evidence is that there are a limited number of executive officer positions in the department. That's the evidence?

PN4209

MR D'ABACO: Yes, the current executive envelope is 119 and my instructions are that that envelope at the moment is full, is complete.

PN4210

THE COMMISSIONER: Yes, all right.

PN4211

MR D'ABACO: Is completely full.

PN4212

THE COMMISSIONER: Yes. There appears to be no suggestion that I should issue an order that Mr Clements ceased to be the holder of an executive officer 3 position? Mr Backwell, you're not seeking - you're not asking to - - -

PN4213

MR BACKWELL: No, sir. To do so would breach his contract of employment and we as a union we would never advocate that.

PN4214

THE COMMISSIONER: Yes, all right. So it appears that what I'm being asked to do by the CPSU is to order the appointment of an additional executive officer above and beyond the complement of executive officers for the Department of Human Services?

PN4215

MR D'ABACO: Well, no, what they ask is that you order that she be appointed the position of manager placement and support.

PN4216

THE COMMISSIONER: Yes, but if I do that it's as an executive officer 3.

PN4217

MR D'ABACO: Yes.

PN4218

THE COMMISSIONER: And the quota for the department for executive officer is full, is that not right?

PN4219

MR D'ABACO: Yes, sir.

PN4220

THE COMMISSIONER: All right, thanks.

PN4221

MR D'ABACO: And we would submit, sir, on the basis of re AEU, with all due respect, that the Commission does not have the power to so order. If I could pick up a comment which has been made by my friend in relation to the application of re AEU, we say that senior office holder encompasses the executive officers of the Victorian Public Service because they ultimately are the executives who put in place the policy directions set by government and that that was the concept which was clearly in the mind of the High Court at the time when re AEU was handed down. Unless the Commission has any further questions, they are the submissions of the respondent.

PN4222

THE COMMISSIONER: Yes, Mr Backwell.

PN4223

MR BACKWELL: Yes, thank you, your Honour. Sorry, sir, Commissioner.

PN4224

THE COMMISSIONER: I'm not your Honour.

PN4225

MR BACKWELL: I beg your pardon, Commissioner. In the future perhaps.

PN4226

MR D'ABACO: He may well know something that we don't know, sir.

PN4227

MR BACKWELL: Sir, in relation to the absence of the duty statement your concern that arises through the submissions that you have requested, we would say that there is an element of submission there from the CPSU, if I might just take you to it.

PN4228

THE COMMISSIONER: The reason for my concern is because I want to focus on what actual the duty statement was in the position she actually held at
29 March 2003. So at this stage it appears there isn't a duty statement for that and the only thing that is therefore before me is the duty statement for the position manager out of home care.

PN4229

MR BACKWELL: Yes, sir. However, in the absence of a document such as this I think we can look at the archaeology of the circumstance.

PN4230

THE COMMISSIONER: Yes.

PN4231

MR BACKWELL: You do have a submission there from us that Mr Robertson recollects that she used the position description for manager service improvement and amended it slightly, including change the title to develop the new position description of manager out of home care. She refers to the fact that the PD4 manager OHC and SS was a typographical error in referring to the youth and family services, which it was when she was appointed to manager service development. So, sir, I am submitting that the archaeology of the position description may be found through that statement and which is in the submission and so therefore the manager service development would be the closest position that would be referred to.

PN4232

THE COMMISSIONER: Sorry, what exhibit number was that?

PN4233

MR BACKWELL: This arises from the answers to the directions, CPSU6.

PN4234

THE COMMISSIONER: Yes.

PN4235

MR BACKWELL: In relation to the 03 issues and the fundamental components of it, it was clearly stated there about the similarity of duties and I don't wish to go over that again except to note one very specific thing that is in the material is that the budgetary responsibilities are incredibly similar to the two positions.

PN4236

THE COMMISSIONER: When you say incredibly similar, how incredibly similar?

PN4237

MR BACKWELL: The budgets are not actually spent, if I could use that crude term, by either the VPS6 position or the EO3. It's under the regional directors to do so. And perhaps if I might apologise to the Commission, that perhaps we should have been more specific and we started to use that and you will notice in the transcript later on, it's really about program budget is the issue, is the question, and certainly it's not the delegation which is clearly different in the EO to - - -

PN4238

THE COMMISSIONER: But it's also about staff budget as well.

PN4239

MR BACKWELL: Yes, that's right, sir, and we note that they are very similar in relation to that.

PN4240

THE COMMISSIONER: Am I correct in my recollection that it's the difference between a million dollars and 1.7 million? Is it 1.7 to two million, the staff budgets?

PN4241

MR BACKWELL: I will just gain some instructions, your Honour.

PN4242

MR D'ABACO: That evidence was given by Ms Callister, Commissioner, in response to a number of questions I think you asked her after the lunch adjournment when she gave evidence.

PN4243

THE COMMISSIONER: Yes, that's correct. Yes. No, that's right. No, I have looked at the evidence more recently that but I'm just now simply attempting to recollect, but it was the difference between the staff budget of a million and a staff budget of 1.7 million to two million.

PN4244

MR BACKWELL: I think, sir, the issue we would like to emphasise is the number of staffing. The budgets will naturally increase with pay increases and the like and it's the number of line reports that I think is relevant there.

PN4245

THE COMMISSIONER: Yes.

PN4246

MR BACKWELL: Sir, in relation to the whole issue of the duties and tasks and the way that an employer may move employees around in the duties and tasks and we refer to this FSU case. In my submission, sir, you need to read it in relation to the mandatory provisions of schedule 14 and the objectives of the Act and the objectives of schedule 14 to protect women in taking maternity leave, so they're very, very serious provisions - - -

PN4247

THE COMMISSIONER: No doubt about that, Mr Backwell.

PN4248

MR BACKWELL: Yes, and as a result, sir, you need to read that concept of the duties through that framework.

PN4249

THE COMMISSIONER: And that was reflected in my decision that applies to the jurisdiction.

PN4250

MR BACKWELL: Yes, sir. In relation to the delay in appointment which has ultimately resulted in the DHS now being able to rely on the time out, if I may us that phrase, that they had discharged their duties and that the delay in the appointment was caused by the grievance from Ms Robertson, to that we would say first of all that it is inappropriate to rely on that time frame as the delay has occurred not through any form of illegitimate activity. A grievance of a selection matter is entirely available within the VPS and within the DHS and to then rely on he subsequent delay that occurred from that as an effort to say that there is no longer a duty under the WRA goes to our whole point of why you should reject the submission of the department that the duties have been discharged.

PN4251

Of course Ms Robertson has not been responsible for the delays that have occurred via appropriate procedure before this Commission, including the jurisdictional hearing and all the rest and so while we do have a person who has been in the position for 15 months it is not through a fault of Ms Robertson and we really need to go back to the timing of the application of the 170LW and perhaps where we are today. In relation to the quota, and this will be my final point, sir, and that the quota will therefore be above the envelope should Ms Robertson be appointed to that position and Mr Clements would be therefore in excess, the position there is twofold. (1), there is an obligation on Mr Clements through his contract of employment.

PN4252

I can't make a submission on that, sir, because I don't have it because clearly the DHS would be bound by it, and secondly, in relation to - this goes to my applications on hierarchy of instruments which is contained in my submission and a state governmental policy we would say should not be read as trumping, if I can use a crude word, an order of this Commission in relation to the hierarchy of them. We have an award now, we have a certified agreement, you are empowered to make a dispute finding in relation to that agreement. That should conclude my submissions, if the Commission pleases.

PN4253

THE COMMISSIONER: Thank you. If you just refresh my memory as to when Ms Robertson is due back at work, is it 5 November? 7 November. Can we just absolutely confirm that? I have got no doubt about the year, it's the date.

PN4254

MR D'ABACO: My instructions are it's 4 November.

PN4255

THE COMMISSIONER: 4 November. The 4th or 5th rang a bell. Yes, all right. Nothing further, Mr D'Abaco? Yes, I reserve my decision and I will issue it as quickly as I possibly can, being conscious of that imminent return date. I thank the parties for their submissions and I now adjourn.

<ADJOURNED INDEFINITELY [5.11PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CPSU5 FINAL SUBMISSIONS OF MR BACKWELL PN4076
EXHIBIT #CPSU6 ANSWERS TO QUESTIONS FROM THE COMMISSION PN4088
EXHIBIT #DHS19 CLOSING SUBMISSIONS AND CHRONOLOGY OF RESPONDENT'S EVIDENCE PN4113
EXHIBIT #DHS21 RESPONSE TO QUESTIONS FROM THE COMMISSION PN4121