C2005/5446, Transcript of Proceedings [2005] AIRCTrans 2649 (30 December 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 13622-1

SENIOR DEPUTY PRESIDENT DRAKE

C2005/5446

MEDIA, ENTERTAINMENT AND ARTS ALLIANCE
AND
AUSTRALIAN BROADCASTING CORPORATION
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/5446)

SYDNEY

10.16AM, TUESDAY, 06 DECEMBER 2005

PN1

MR M RYAN: I appear on behalf of the Media Entertainment Arts Alliance with MS M JONES.

PN2

MR L CARUSO: I appear on behalf of the ABC with MR P McINTYRE.

PN3

THE SENIOR DEPUTY PRESIDENT: I apologise for keeping you waiting. Yes, Mr Ryan.

PN4

MR RYAN: Your Honour, when this matter was on for mention you requested a chronology of events, if I could tender that document.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. What did you give me then?

PN6

MR RYAN: A chronology of the contracts Ms Sedgman has had with the ABC. It's in the form of an email to you of Ms Jones and Ms Sedgman, your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: I see. Yes, Mr Ryan, so this is an email dated 5 December.

PN8

MR RYAN: Yes.

PN9

MR CARUSO: Before Mr Ryan continues, your Honour, we've also done a chronology and I'm not sure whether you requested it from both parties.

PN10

THE SENIOR DEPUTY PRESIDENT: I was hoping you would have a joint one, but anyway, I'll have yours too.

PN11

MR CARUSO: We've done a separate one.

EXHIBIT #MEAA1 EMAIL DATED 5/12/2005
EXHIBIT #ABC1 ABC CHRONOLOGY

PN12

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Ryan.

PN13

MR RYAN: There's a matter of some concern, your Honour, which may well have to be decided in another place if we can't resolve it between us and it's borne out by both chronologies, that since the Alliance took up Ms Sedgman's matter, she has been put on the casual roster. As far as I can see on first glance, her removal from the roster in terms of the timeline gives rise to proceeding under section 298L of the Act in that she has been prejudiced by seeking the benefit of an award or an agreement. That is borne out in MEAA1 in that she has been dropped a loss of eight shifts that she was set up for in December and January, being reduced to two, although I note in ABC1 at the very end, they say a possible four shifts in January.

PN14

We take an extremely dim view, your Honour, that when a member comes to us for assistance and we exercise our right to firstly negotiate with the employer and where that's unsuccessful, exercising rights pursuant to either section 99 of the Act or the disputes settling procedures in certified agreements, that the member is prejudiced by the union acting on her behalf. We certainly expected something better from a body such as the ABC. Be that as it may, we are at the moment trying to solve another problem but it just seems more than coincidental that since the involvement and the notification to the Commission, that casual shifts have disappeared at a rate of knots.

PN15

THE SENIOR DEPUTY PRESIDENT: Thank you. Could you tell me what the payroll reconciliation is for, Mr Caruso?

PN16

MR CARUSO: Your Honour, that's in regard to when someone leaves the organisation, whether it's through a resignation or whatever reason. Payroll go through a process where they need to ensure that there are no other payments outstanding, there are no materials or tools owing, et cetera, et cetera. On that basis we use an exit clearance form.

PN17

THE SENIOR DEPUTY PRESIDENT: What are the accruals?

PN18

MR CARUSO: Sorry?

PN19

THE SENIOR DEPUTY PRESIDENT: What are the accruals?

PN20

MR CARUSO: The accruals?

PN21

THE SENIOR DEPUTY PRESIDENT: Yes, that make up the $7418.96.

PN22

MR CARUSO: That would be all the leave entitlement.

PN23

THE SENIOR DEPUTY PRESIDENT: Do you have, as part of this, copies of correspondence and how that's calculated?

PN24

MR CARUSO: The annual leave entitlements?

PN25

THE SENIOR DEPUTY PRESIDENT: Yes. Could you provide that in the course of the matter.

PN26

MR CARUSO: Sorry, your Honour?

PN27

THE SENIOR DEPUTY PRESIDENT: Could you provide that in the course of the matter?

PN28

MR CARUSO: Yes, I could.

PN29

THE SENIOR DEPUTY PRESIDENT: Sorry, I'm softly spoken. I'm just going to have to learn to throw my voice.

PN30

MR CARUSO: You just want the basis of how we calculated that leave entitlement?

PN31

THE SENIOR DEPUTY PRESIDENT: Yes, just in case it's relevant in the determination of the matter. I don't know if it is or not, but - - -

PN32

MR RYAN: I actually have a copy of it, your Honour.

PN33

THE SENIOR DEPUTY PRESIDENT: Do you? Thank you.

PN34

MR RYAN: That's the only one. It gives a figure of 7400-odd dollars.

PN35

THE SENIOR DEPUTY PRESIDENT: Perhaps I could have my staff photocopy it at morning tea.

PN36

MR RYAN: One little minor housekeeping matter with the application, your Honour, is that Ms Sedgman is going to give evidence. I understand Mr McIntyre also is going to give evidence. Some of the evidence will consist of conversations between the two. We request that Mr McIntyre not be present while Ms Sedgman gives her evidence.

PN37

THE SENIOR DEPUTY PRESIDENT: Right. Do you intend to open with a summary of the matters you wish to put or not?

PN38

MR RYAN: Yes.

PN39

THE SENIOR DEPUTY PRESIDENT: When Ms Sedgman gives her evidence he can leave, but until then he can remain since he's instructing Mr Caruso.

PN40

MR RYAN: Your Honour, Ms Sedgman commenced employment first with the ABC back in 1999 and then continued until sometime in 2003 where she resigned, took up a position elsewhere and then returned to the ABC at the beginning of 2004 on the basis set out in both documents.

PN41

Her last contract was a specific task contract which was in the nature of backfilling for a Mr Peter Hughes who was a reporter in the Sydney newsroom, while Mr Hughes was backfilling for an editorial management position while the incumbent in that position was on maternity leave. During the period of that contract Mr Hughes applied for and was successful in being given a promotion to another editorial management position and as the initial contract was to expire at the end of October, but no specific date, 2005 on the basis that the woman would return from maternity leave, Mr Hughes would go back to his substantive position as a reporter in the newsroom. That did not happen because Mr Hughes was promoted to another position.

PN42

Ms Sedgman continued working until Friday, 28 October, as she appeared on the roster and that week she was covering the court round for the ABC. She was not paid for the period from 24 to 28 October and she went to see payroll as to why she was not paid for that particular week and was told at that stage that her contract actually finished on 23 October. There had been no discussion as to an exact end date of the 23rd. The first that Ms Sedgman knew about it was when she queried the non-payment for that week from 24 to 28 October. She then reluctantly continued work on a casual basis from 31 October and you can see in ABC1, at the bottom of that page, a number of casual shifts that she received after that. Up until 13 November there's consistent work, week in and week out.

PN43

To the best of our knowledge, your Honour, Mr Hughes' reporting position has not been filled in the ABC since he got his promotion, and that was the position that the contract was given to Ms Sedgman, that she would be doing the reporting role in the Sydney newsroom because of Mr Hughes acting up.

PN44

We say that in relation to the terms of our agreement in clause 16.2.2 that:

PN45

If a fixed term employment is extended beyond the date of termination or completion of a specified task ...(reads)... then the onus shall be on the ABC to establish that the employment is not in fact ongoing employment.

PN46

What we say there is that it's not possible for the ABC to say post 28 October, where she worked up till, then in fact her employment had been terminated on 23 October and that somehow that working week from the 24th to the 28th wasn't covered by her contract, it was under some other unilaterally imposed employment relationship, that that working week triggers the operation of 16.2.2. The fact that Mr Hughes' position has still not been filled means that there was an ongoing role for Ms Sedgman in the newsroom and the fact that that is coupled with her being forced to sign a casual employment engagement, which was signed, as we say, under duress because the only way of getting employment was on that basis and without prejudice her rights in the Commission means that she should be kept on in accordance with clause 16.2.2 of the agreement. The evidence that Ms Sedgman will give will bear out that fairly succinctly.

PN47

That's the nuts of the case, your Honour.

PN48

THE SENIOR DEPUTY PRESIDENT: It's a very short factual matter.

PN49

MR RYAN: It is. I think we noted that at the mention that the facts really aren't in any doubt. They are clear facts, if you like, and the question to be determined is whether on the facts before you, that triggers the operation of 16.2.2, either that she should be made ongoing or that the onus on the ABC to prove to you that there was no ongoing role is what lays with the ABC in terms of our agreement.

PN50

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Caruso, do you want to provide me with a short summary of the ABC's position in relation to this notification?

PN51

MR CARUSO: Yes, thank you, your Honour. Ms Sedgman has been on three specified task contracts, all for what we submit were temporary vacancies. The first one, which started in March 2004 and was expected to end in March 2005, was to backfill for someone on maternity leave, and that was with our radio current affairs department.

PN52

Before the expiration of that contract Ms Sedgman was offered a separate contact, again a specified task, for a temporary vacancy, this one starting from 24 January and ending in May 2005. That was offered to her and she accepted that. Before the expiration of that contract, Ms Sedgman then applied for an expression of interest in radio news and that's her position that Mr Hughes was in and she was backfilling behind Mr Hughes while Mr Hughes was on a temporary transfer.

PN53

The contract clearly states that the specified task was anticipated to conclude in October 2005. It doesn't specifically give a date as the department wasn't exactly sure on the exact date that Mr Hughes would be returning, but they expected that it would end in October 2005. Mr Hughes did return at the end of October and I believe Ms Sedgman was paid up until 31 October.

PN54

We submit, and our evidence will show that those contracts were separate temporary vacancies, unrelated, and that certainly for the first two contracts, either Ms Sedgman herself terminated those contracts by either voluntarily accepting another temporary vacancy, or as the case is in the last contract, applying for and accepting a temporary vacancy in radio news. That position was advertised as a temporary vacancy. The contract that was given to Ms Sedgman, which she signed stipulates that it was a temporary vacancy, it was a specified task employment with an anticipated end date of October 2005.

PN55

Our submission is that 16.2.2 doesn't apply because each contract was not extended beyond the termination or completion of that specified task, except for that last one. That last contract was not extended, it was completed at the anticipated end date, which was October 2005. Really, that's our evidence. Subsequent to that she has been employed as a casual and we believe, and our evidence is that it is genuine casual employment.

PN56

THE SENIOR DEPUTY PRESIDENT: I've marked the cessation of pay form, non-redundancy, ABC2. I've marked it as your exhibit, Mr Caruso, simply because it's your document and it's easier to keep it that way.

EXHIBIT #ABC2 CESSATION OF PAY FORM NON-REDUNDANCY

PN57

THE SENIOR DEPUTY PRESIDENT: I don't think it arises in consideration of this issue for me to comment on the matters you've raised as to the unavailability of casual work, Mr Ryan. They're matters of concern if they're accurate but they're not a matter that I can deal with, unless those matters were referred to me as well and they haven't been in the notice. Do you agree, Mr Caruso, that the factual ambit of this dispute is a very narrow one? It seems to me the question is, what was the end date of this contract and how is that affected by the application of the clause in the agreement.

PN58

MR CARUSO: Your Honour, I agree with that.

PN59

THE SENIOR DEPUTY PRESIDENT: Do you agree with that, Mr Ryan?

PN60

MR RYAN: Yes. Unlike most disputes, Commissioner, it's very narrow and focused.

PN61

THE SENIOR DEPUTY PRESIDENT: They're rare. In that case, all other factual matters being matters really agreed as to the existence of the contract and it's commencement date, et cetera, we should confine the evidence to those matters.

PN62

MR RYAN: Could I just say, we make an admission to this extent, your Honour, in relation to the first two contracts, they're not relevant to this particular case, just to show that Ms Sedgman has been at the ABC for some time.

PN63

THE SENIOR DEPUTY PRESIDENT: Yes, they're history and they provide the context but they're not - - -

PN64

MR RYAN: No, they're not germane to actually what we seek to prove.

PN65

THE SENIOR DEPUTY PRESIDENT: Do you wish to call Ms Sedgman?

PN66

MR RYAN: Yes, thanks, your Honour.

PN67

THE SENIOR DEPUTY PRESIDENT: Mr McIntyre, would you mind leaving the room? Thank you. Nothing personal. Could you shut the door on your way out.

<JAYNE MAREE SEDGMAN, SWORN [10.36AM]
<EXAMINATION-IN-CHIEF BY MR RYAN

PN68

MR RYAN: Ms Sedgman, I want you to state your full name and address for the Commission, please?---Jayne Maree Sedgman (address supplied).

PN69

Can you briefly outline your employment with the ABC?---Certainly. I joined the ABC's Sydney newsroom back in May 1999. I was employed as - on a full time basis but as a casual and on a series of short term contracts. That period spanned about 2 and a half years. It took me 2 and a half years to gain permanent employment, although I was employed full time throughout that period. I was then given a permanent position in October 2001. I was a general reporter and had a number of rounds, courts rounds, Police Integrity Commission, HRH Royal Commission during that time. I left the ABC in September 2003 to go off and try something else. It wasn't to my liking and I received a phone call in early 2004 from the then head of current affairs saying, we hear you've left. Are you interested in coming back? We've got a maternity leave position that will need backfilling. You could come and start work as a casual with us, then apply for the maternity leave position and if you were successful, you know, you would be set. So I did come, I began in February 2004. I was a casual for three weeks and then was the successful applicant for the maternity leave position, that backfill position. So I filled that position for 12 months, then as has been stated, I received another contract effectively extending that initial contract by three months because someone was being transferred to Canberra temporarily. As that was nearing an end and it was unclear whether there would be further work with radio current affairs, and a position came up in radio news, I applied for that position. It was a six month contract backfilling for Peter Hughes. I was employed by both radio and television news. I did a mixture of both and was with the ABC in that capacity, I thought, until the end of October, not having been given any indication otherwise, and worked till the end of October, had discussions with Paul McIntyre along the way as to whether - further opportunities that might be coming up, people who'd left, Peter Hughes' position, and was told at that time that he wouldn't be employing any more senior journalists and that I might like to start looking elsewhere, that there would be some casual work available. That pretty much brings us up to date. I have - I became casual at the very, very end of October. I think my first casual shift was 31 October. There was that last week that was in dispute. I thought I was under contract, apparently I wasn't, but nobody - the rosterer didn't seem to know that either so - and as a result I didn't get paid. I was subsequently paid I want to point out, but I had to chase it up and that's when it emerged that my contract was in fact due to have ended on the 23rd. So that's where we are.

**** JAYNE MAREE SEDGMAN XN MR RYAN
PN70

Can we just be clear on the nature of what shall we call the Peter Hughes' contract, Peter Hughes' replacement contract. What was the need for you to fill Mr Hughes' position?---Peter Hughes was a general reporter in the radio newsroom and he was temporarily promoted, if you like, or asked to backfill a national editing role that was vacated by someone in Brisbane who had gone off on maternity leave. During that time Peter also applied for a new position that was created, which was the Sydney editor's position, and was the successful applicant. So when he - at some point he morphed from the national editor into the Sydney editor.

PN71

Are you aware whether Mr Hughes has taken up that position?---Yes. Yes, he has been, you know, in that position for sometime now.

PN72

Approximately when did he start in the Sydney editor's position?---I - look, he's been in it for a couple of months I think, but the exact date I couldn't be sure of.

PN73

Was it sometime in September or earlier?---He was - he was certainly - the announcement was certainly made - gosh, look - - -

PN74

You may not be able to answer that?---Yes. No. I would dare say it would have been October at the latest.

PN75

Did Mr Hughes ever return to the Sydney newsroom as a general reporter?---No.

PN76

Are you aware has that position been filled, that general reporter's position that was previously held by Mr Hughes. Has that been filled?---Not that I'm aware and when I asked Paul McIntyre about that position, he said, well, there's no way that we're going to be offering it at Peter's level. Any positions that are advertised will be advertised at a junior level. So.

PN77

Although Mr Hughes was a more senior journalist - is that correct?---Yes.

PN78

That you were - - -?---I would say that Peter and I are in the same band. I obviously don't know his exact pay but we're of a similar sort of level.

PN79

You're a band 6, as I understand it?---Yes.

PN80

As a band 6 you were filling Mr Hughes' position?---Yes.

PN81

As a general reporter?---Yes.

**** JAYNE MAREE SEDGMAN XN MR RYAN
PN82

Your evidence is that Mr Hughes never returned to the newsroom as a general reporter?---That's correct.

PN83

But you've had discussions with Mr McIntyre. What's Mr McIntyre's title?---He's - God, what is it - New South Wales state editor.

PN84

With responsibility to both TV and radio?---That's correct.

PN85

You had discussions about your future in the knowledge that Mr Hughes' position had not been filled?---That's right. There was also someone else who had left, thereby creating a vacancy but Mr McIntyre informed me that someone else had been slotted into that position.

PN86

But not Mr Hughes'?---No.

PN87

When you had the discussion about Mr Hughes, it's your evidence that
Mr McIntyre said, we would be not employing at senior level?---That's right.

PN88

Do you know the difference in salary between the bottom of band 6 and the top of band 4?---Off the top of my head, no, but I can't imagine it's huge. The top of band 6 and the bottom of band 4, I guess it's six grand.

PN89

You are $229 out, it's exactly $6229?---Okay.

PN90

Can I just go then to the week commencing 24 October. You worked that week?
---I did.

PN91

How did you know to work that week?---Because I was placed on the roster. I was court reporter for that particular week filling in for the court reporter who was off doing some television training.

PN92

Is it common for general reporters to replace rounds people?---Yes, and particularly where you have experience in that field, which I do have.

PN93

Had you at any time prior to 24 October been told that the fixed term contract to replace Mr Hughes had expired?---No. No one ever gave me a date and everyone seemed to work on the assumption of the end of October so I did as well and the first I knew that it was in fact the 23rd was when I had to go and query why I hadn't been paid for that week and the person who, you know, takes out the details from the roster and enters them into the system said, I didn't see you and as far as I was aware your time with us ended on the 23rd, which was news to me.

**** JAYNE MAREE SEDGMAN XN MR RYAN
PN94

Mr McIntyre never told you?---No.

PN95

Did he tell you after the event when your contract was supposed to have ended?
---No. The only person who mentioned the 23rd was the pay person.

PN96

You wouldn't have been surprised, would you, if you worked on the 24th to the 28th, that Mr Hughes still hadn't been replaced?---No, no.

PN97

Are you aware if there are still vacancies amongst general reporters in the newsroom?---We have filled a number of the overnight positions recently at a very, very junior level. I would think that Peter's position would still be up for grabs. It's difficult to know. If a job isn't advertised at the band that you expect it to be advertised at, then it's often difficult to know who it might be replacing, but I haven't seen any jobs advertised at anywhere near a senior level for radio news in quite some time.

PN98

There's no set salary, is there, for a general news reporter?---No, no. It's done entirely on - well, theoretically, on your experience and what-not but also on what salary they want to pay, what - you know - and it's been very much rammed home to me that money is at the centre of this decision because at no point has the quality of my work been called into question. I've never been, you know, disciplined or picked up in any way. I've been told that it is financially driven, that we are over budget and the - and top heavy with senior reporters and - which is categorically not true of the reporting floor. There may be seniors elsewhere in the newsroom but not out in the field reporters and that, you know, this is financially driven and they just want to employ junior people and that's what's been happening. We've taken on a slew of casuals who are very junior and in some cases it's their first job.

PN99

In the context of you backfilling for Mr Hughes, you in fact, if I'm not mistaken, went from a band 5 and your previous contracts were band 6?---I did manage - I hadn't had a pay rise in quite some time so I did manage to negotiate going up into the bottom of band 6 in securing that contract with radio news. I hadn't had a pay rise for a couple of years and said, look, I have - you know, I was able to negotiate that on the basis that I had completed a stint in current affairs and therefore had new skills under my belt.

PN100

THE SENIOR DEPUTY PRESIDENT: Ms Sedgman, yes would have done?
---I'm sorry. I'm sorry.

**** JAYNE MAREE SEDGMAN XN MR RYAN
PN101

MR RYAN: I just ask the questions, your Honour.

PN102

THE SENIOR DEPUTY PRESIDENT: I know.

PN103

THE WITNESS: Sorry.

PN104

MR RYAN: Who represented the ABC in those discussions about your salary for replacing Mr Hughes?---Me.

PN105

I expect there was somebody from the ABC - - -?---Sorry, it was a discussion between myself and Paul McIntyre.

PN106

I have no further questions, your Honour.

PN107

THE SENIOR DEPUTY PRESIDENT: Mr Ryan - doesn't matter. We'll see how it goes. Yes, Mr Caruso.

<CROSS-EXAMINATION BY MR CARUSO [10.47AM]

PN108

MR CARUSO: Ms Sedgman, could I just hand you a copy of the last specified task employment contract?---Certainly.

PN109

I also have a copy for the court. Have you got a copy of that?

PN110

MR RYAN: Yes, thanks.

PN111

MR CARUSO: Ms Sedgman, if you look at the contract, under number 1, task, it says:

PN112

Your employment is anticipated to commence on 25 April 2005 and will continue for the duration of the temporary transfer of the incumbent which is anticipated to conclude in October 2005.

PN113

When you signed that contract, did you understand that it was for a temporary vacancy and that it would conclude in October 2005?---I did.

PN114

You did?---I did. I also worked on the basis that I would obtain another contract or a position would come up subsequent to that that I would be able to fill.

**** JAYNE MAREE SEDGMAN XXN MR CARUSO
PN115

On what basis did you - - -?---Because I had been with the ABC 6 and a half years and was assured by a lot of senior people that they couldn't afford to let me go and that there would be something else, someone else will leave - will have left, moved on, got pregnant.

PN116

But not necessarily - - -?---No, no. I concede that, you know, I signed this knowing it was going to October and it would be up to me to find something else subsequent to that.

PN117

Did you actually apply for a job that was advertised?---I did, yes.

PN118

Did you apply for it?---Yes.

PN119

As you said earlier you had discussions with Paul McIntyre about negotiating salary?---Yes.

PN120

You agreed that for the duration of this period your salary would be at band 6?
---That's right.

PN121

You've said that you understood that this role or the job you were performing in this role would end in October 2005. What made you think then that you would be considered as an ongoing employee after the expiration of this contract?
---Well, I was advised that because of the fact that I had had three contracts back to back and there was a particular issue with the last one, I was advised to seek advice, which I did, and that's how we came to be here today. I guess I'm here because I have a long history with the ABC and very comprehensive experience and a good record with them and it was somewhat galling to find that the only reason I wasn't going to be further employed, that I wouldn't gain any further positions, was because of my salary, where I was on the salary scale, that I would be replaced by a 21-year-old who - - -

PN122

But surely that's a decision for Mr McIntyre to make.

PN123

THE SENIOR DEPUTY PRESIDENT: I don't think any of this goes to the matter in dispute before me, does it?

PN124

MR CARUSO: I'm just trying to set the platform, your Honour.

PN125

THE SENIOR DEPUTY PRESIDENT: I know the matter comes up but it seems to me that the narrow compass is, did it expire on the 23rd or not.

**** JAYNE MAREE SEDGMAN XXN MR CARUSO
PN126

MR CARUSO: I'll try to go back to the straight and narrow, your Honour.

PN127

You said you did have a conversation with Mr McIntyre before the end of October?---I certainly did.

PN128

Did Mr McIntyre tell you why he couldn't employ you beyond October?---Yes. He said it was financially driven and that he was top heavy and he wasn't going to be employing any senior - any further senior reporters.

PN129

There was no indication from Mr McIntyre that your employment would be continued beyond October 2005?---Beyond in a casual capacity, no.

PN130

THE SENIOR DEPUTY PRESIDENT: Mr Caruso, I'm going to stop this matter for one moment and have a talk to both advocates because there's an issue that arises and I'll get Ms Sedgman to go outside.

PN131

Would you mind waiting outside with Mr McIntyre?---No, not at all.

PN132

If you happen to negotiate a settlement of the matter while you're out there, feel free to let me know.

<THE WITNESS WITHDREW [10.52AM]

PN133

THE SENIOR DEPUTY PRESIDENT: We'll just go off the record for a moment.

<SHORT ADJOURNMENT [10.52AM]
<RESUMED [11.27AM]

PN134

THE SENIOR DEPUTY PRESIDENT: What are you doing?

PN135

MR RYAN: I've just found the others, told them you're ready.

PN136

THE SENIOR DEPUTY PRESIDENT: No, no. We are proceeding on?

PN137

MR RYAN: It might be advisable to go back off the record, your Honour. I did consider those questions.

PN138

THE SENIOR DEPUTY PRESIDENT: Thank you. Are we off?

<SHORT ADJOURNMENT [11.28AM]
<RESUMED [11.43AM]

PN139

THE SENIOR DEPUTY PRESIDENT: We've had an interruption whilst I've had discussions with the parties and the parties have had discussions with each other. There has been an exchange of some information. We're now ready to recommence the section 170LW application. Ms Sedgman will resume her evidence.

<JAYNE MAREE SEDGMAN, ON FORMER OATH [11.43AM]
<CROSS-EXAMINATION BY MR CARUSO, CONTINUING

PN140

MR CARUSO: Just a couple more questions, Ms Sedgman. Did you have a conversation with Mr McIntyre around September in regard to any further employment with the ABC?---Yes.

PN141

Did he say to you there would be no further employment beyond the expiration of the contract in question?---Well, he said that there would be no more senior positions advertised. So effectively that was yes, that, you know, he wasn't looking to extend my contracts, any others that I was inquiring about.

PN142

He didn't give you a specific date as to when that contract would end?---No.

PN143

What normally happens as far as rosters are concerned, are they put up for all employees to see?---Yes.

PN144

The rosters put up for the last, say, fortnight of your employment, did you see those rosters?---Yes.

PN145

Were you included in the roster for the last week in October?---Yes, I was. Yes.

PN146

You understood that you were expected to work for that?---Yes.

PN147

No further questions, your Honour.

PN148

THE SENIOR DEPUTY PRESIDENT: Thank you. Re-examination?

PN149

MR RYAN: No, your Honour.

PN150

THE SENIOR DEPUTY PRESIDENT: Thank you, you're excused.

<THE WITNESS WITHDREW [11.45AM]

PN151

THE SENIOR DEPUTY PRESIDENT: Is that your evidence?

PN152

MR RYAN: Yes, it is, your Honour.

PN153

THE SENIOR DEPUTY PRESIDENT: Do you wish to call your witness?

PN154

MR CARUSO: Yes.

<PAUL DAVID MCINTYRE, SWORN [11.46AM]
<EXAMINATION-IN-CHIEF BY MR CARUSO

PN155

MR CARUSO: Could you just state your name and address for the Commission?
---Paul David McIntyre (address supplied).

PN156

What is your role at the ABC?---I'm the state news editor to New South Wales.

PN157

Can you tell us when you first employed Ms Sedgman?---Sometime in 2000, I think, 2001.

PN158

Was that employment continued with you?---Up to a point where she resigned and went to work for another employer for about three months or so.

PN159

What happened after that? Did she return?---After that she came to see me and said that she would like to be taken on as a casual and we had a discussions and I said, "Sure" and put her on for, I think it was three months.

PN160

How long was she with you then?---It wasn't very long, it was only a matter of weeks and she took up a role with radio current affairs.

PN161

When did she return to you?---It wasn't really a matter of return, we put out an expression of interest, and that would be sometime late 2004, and that was to backfill behind Peter Hughes.

PN162

Did you have contract negotiations with Ms Sedgman?---We offered her a contract which was a fixed term specified task to backfill Peter Hughes.

PN163

What was your understanding of that specified task contract?---That was to backfill Peter. We had put on the contract that we didn't specify an end date, end of contract, other than to say October because we weren't sure exactly what would happen with Kim Scanlon, whether she was going to come back after how many months, whether it was six or 12 or whatever, but when the paperwork was filled out we did have the 23rd of the 10th on it.

PN164

Did you have any conversations with Ms Sedgman in regard to her employment at that stage?---At which, at the stage of the fixed - when we offered her the fixed term?

PN165

Yes?---Basically, this is who you're backfilling behind and, you know, what can happen from time to time is you get one specified task and then another one may come up. This was in this case the third one that had come up for Jayne Maree and I think that at the time, you know, she was hoping that if a full time position didn't come up, that there might be another fixed term task or casual work until there was something in the future. I was aware that Jayne Maree was very keen to get back into the ABC.

**** PAUL DAVID MCINTYRE XN MR CARUSO
PN166

Did she raise any concerns with you in respect to her employment and probable ongoing employment?---Yes. That was raised - I'm a little bit fudgy on the dates. It was sometime near the end of September, I think, because we'd done a wee bit of a re-org on the editorial side and we no longer had a supervising producer and instead we took on the Sydney radio new editor role which Peter Hughes applied for and got and the Peter Hughes' position was one that Jayne Maree was backfilling. She came to see me to see what was going, whether that was going to be advertised and the like, and I said, well, what we're looking to do at the moment is tidy up overnight reporting roles and junior roles, and I'd combined two senior roles, that was Peter Hughes and Dick Lopes and I was advertising three junior roles because we're fairly top heavy. I wanted to get some more people at junior level and to take care of overnights and to train them up for other roles. So at that point we were talking about what's going to happen at the end of this. Well, at the end of the specified tasks I was going to let that run and then there would be casual work. At that point things can change quite quickly, whether someone goes on maternity leave or leaves so I was really trying to keep an open door to see if something did come up. A few weeks later - I'm pretty sure this is on a separate occasion because I remember Lauren Martin's name being raised. Lauren, who was a bi-media reporter and resigned and gone to another job and Jayne Maree came to ask me about that particular role. I said, unfortunately, with the changes with the supervising producer position being pretty much abolished - the person that was in that role, Michael Gleeson, was going to take over the reporting role of Lauren Martin. So at that point in time we didn't have any ongoing vacancies, but who knows what might come up and in the meantime I'm happy to give you casual work.

PN167

Were any specific daters discussed as to when her specified task employment would end?---Not that I recall, not at that point and it's not something that I would generally have off the top of my head. I pretty much rely on my production manager to let me know or let the rosterers know.

PN168

What normally happens with the rosters in terms of when they're posted and when journalists - - -?---They're generally put up about three weeks in advance. We try and give them plenty of warning. We do try and make the casual arrangements that far out so that casuals have got the opportunity to accept or decline the work and some of the casuals might work at one of the newspapers or something like that so, yes, it's to give them the best opportunity to organise their lives as far as casual work goes.

**** PAUL DAVID MCINTYRE XN MR CARUSO
PN169

Can you recall what dates Ms Sedgman would have been included in the rosters for October?---I think she may have been - I remember, and I'm not quite sure of the sequence here, being drawn to my attention that we've got her rostered till the end of October but the specified task ends on the 23rd, what did I want to do about it and I said, Well - and this was a conversation with probably the rosterer and more than likely Chrissie Henebery, my production manager, was, well, we've put the roster up, let's honour that. We do have a bit of casual work going at the moment, it's not a problem, we can find that. We had already advertised three junior positions at the end of September. We were anticipating those coming on line in probably late November, somewhere in December, so casual work would dry up a fair bit at that point.

PN170

When you say the specified task, you mentioned 23 October?---Yes.

PN171

What significance does that date have?---That was - when you fill out your original - there are two forms, one is a contract that would have gone to Jayne Maree and that's the one that would have said anticipated finish in October, and then there's one that the production manager, just to do all the paperwork, would have put an end date on.

PN172

What document would Ms Sedgman have looked at and realised what rosters she would have had?---She should have - she would have got the contract. I wouldn't have expected her to have seen the one that said 23/10. That's an internal sort of admin document. She may have asked the - you know, someone, what's the end date of my contract? and Chrissie could have told her that or I could have said, I'll get back to you and asked Chrissie and given that, but that's not something that we normally hand on to the person.

PN173

In your view, when did you expect Ms Sedgman's employment to cease as a specified task employee?---My view - mine was the 23rd of the 10th behind Peter Hughes because we were letting that roll on because there was a shortage and then once she'd been rostered to the end of October and I talked to the rosterer about it and we thought, well, are we short? Yes, we are. Okay, we'll honour that and there are a few holes that we could fill in early October as well. So we gave her that work. I was completely relaxed about that purely because we'd had discussions that once that's finished, you go back to casual employment and from there if another opportunity comes up, put your hand up and we'll see what happens.

**** PAUL DAVID MCINTYRE XN MR CARUSO
PN174

What would you have told Ms Sedgman in respect to when - - -

PN175

MR RYAN: With respect, it's either what was told or wasn't told, your Honour.

PN176

MR CARUSO: Did you have any discussions with Ms Sedgman specifically in regard to the rosters and when her employment as a specified task employee - - -?
---I remember having a couple of discussions with Ms Sedgman that got rather animated when she realised that she was going to go from a fixed term to a casual. So it was very clear in my mind that she understood that at the end of the specified task that she would become a casual.

PN177

THE SENIOR DEPUTY PRESIDENT: I think you need to locate those conversations in time.

PN178

MR CARUSO: Sorry?

PN179

THE SENIOR DEPUTY PRESIDENT: I think you need to locate those conversations in time.

PN180

MR CARUSO: When was that conversation? Is that the same one you had - - -?
---We had several conversations running through from the middle to September until the - it can't have been too much in October because I was away for quite a period of October. I think I only four days in the office. I think that was from the - I flew back in on the morning of the 11th from New Zealand and then on the Saturday I flew out again and I wasn't back until November. So I don't recall - I only recall one conversation in October and that was as I was rushing to catch my plane. I'd popped in for a few minutes on the Saturday. Jayne Maree came in, she wanted to know would she be getting the 20 per cent loading and would she be remaining on point 27 as a casual and I said yes, she would.

PN181

No further questions, your Honour.

<CROSS-EXAMINATION BY MR RYAN [11.57AM]

PN182

MR RYAN: I wonder if I could show the witness a document, having confirmed it's Ms Sedgman's contract. I would also tender one for your benefit.

PN183

Could you just go to the last page, please, Mr McIntyre.

PN184

THE SENIOR DEPUTY PRESIDENT: It's already ABC3. I marked that. I don't know if I told you before I marked the letter dated 11 April 2005. ABC3.

**** PAUL DAVID MCINTYRE XXN MR RYAN

EXHIBIT #ABC3 MS SEDGMAN'S CONTRACT

PN185

MR RYAN: That's your signature, Mr McIntyre?---Of course it is.

PN186

That's, to the best of your belief, the contract which governed Ms Sedgman's last period of fixed term employment with the ABC?---Yes.

PN187

If you go to the start of it, that was for the period 25 April 2005:

PN188

And will continue for the duration of the temporary transfer of the incumbent which is anticipated to conclude in October 2005.

PN189

?---That's correct.

PN190

That's the reason for that contract being - - -?---It is indeed. Yes.

PN191

We've confirmed, have we not, that the incumbent was Peter Hughes?---We have.

PN192

That he was backfilling a - - -?---We have.

PN193

Which was on the basis that a woman was on maternity leave and thus there was some flexibility as to her return date?---Yes, indeed.

PN194

It's also true, isn't it, that Mr Hughes applied for and was appointed to a new position in editorial management?---He was, yes.

PN195

I put it to you that announcement was made in August of this year, that he had been successful in the position?---Sure, somewhere around there. I'm not sure of the exact date, but you know.

PN196

Are you aware that Mr Hughes took leave in September of this year?---Yes, I am.

PN197

Would it be correct to say that he actually commenced his new duties as state editor?---No, no.

PN198

Sydney editor?---Sydney radio news editor, yes. That's the one.

PN199

There are more editors at your place than a newspaper?---I don't know. I've never worked at a newspaper, sorry.

**** PAUL DAVID MCINTYRE XXN MR RYAN
PN200

On 4 October?---That's correct.

PN201

I want to put to you that when Mr Hughes was permanently appointed to the Sydney editor's position, his temporary transfer came to an end?---Yes. I would have to agree with that. No problems.

PN202

Since the basis for the fixed term contract was to cover Mr Hughes for the period of his temporary transfer, you kept Ms Sedgman on past the conclusion of the specified task?---The reason that we - - -

PN203

Well, it's a simple yes or no answer?---Yes, but there is a very logical explanation for that which I would like to be able to put forward if that's at all possible.

PN204

THE SENIOR DEPUTY PRESIDENT: Not unless he wants to hear it.

PN205

MR RYAN: I just want to go back to the basics of the contract which was for
Ms Sedgman filling for the period of Mr Hughes' temporary transfer his position in Sydney newsroom?---Sorry, can you repeat that. I just lost track.

PN206

The purpose of the contract that you've just cited was that Ms Sedgman perform the duties of Mr Hughes - - -?---Yes, it was.

PN207

- - - while he was on temporary transfer covering maternity leave for the Brisbane based position?---Yes, it was.

PN208

You've admitted that that temporary transfer came to an end upon his appointment to the new Sydney news editor's position?---Yes, I have.

PN209

You've also admitted, have you not, that Ms Sedgman remained in employment with the ABC on the basis of that contract until 30 October?---I had already explained to Ms Sedgman that at the conclusion of that that we would be giving her casual work. We had rostered her and that was the basis that she continued to have work.

PN210

Let's forget about casual work for the moment. The question is a simple one. Ms Sedgman continued in employment - - -?---Yes, she did.

PN211

- - - on a full time basis after the temporary transfer of Mr Hughes came to an end on his appointment to his new position, until the end of October?---She was filling shifts that were there available to be filled for any casual. She hadn't finished, we hadn't said, your contract has now been terminated 4 October, here are the casual shifts, but we had made it abundantly clear to Ms Sedgman that in September, that at the conclusion of the contract, that she would be given casual work.

**** PAUL DAVID MCINTYRE XXN MR RYAN
PN212

The legally binding contract was only entered into on the basis that she was doing Mr Hughes' work while he was on a temporary transfer?---That's what the contract says.

PN213

THE SENIOR DEPUTY PRESIDENT: Where does it say that? It says:

PN214

Your employment is anticipated to commence on 25 April and will continue for the duration of the temporary transfer of the incumbent.

PN215

I see:

PN216

Which is anticipated to conclude in October 2005.

PN217

MR RYAN: The end date is unclear because it's dependent upon the woman returning from maternity leave. The specified task which allows this form of contract was backfilling for Mr Hughes while he was on a temporary transfer.

PN218

The only document, apart from 11 April contract, was after October when Ms Sedgman signed for casual engagement, or whatever the technical term is. Is that correct?---Yes. That's the only document she signed after that point and that was to enable her to be paid.

PN219

There's no other document that Ms Sedgman signed between Mr Hughes' appointment to his new position and the end of October this year?---No, nor would I be aware of any reason why she should sign something else unless I was going to offer her - - -

PN220

THE SENIOR DEPUTY PRESIDENT: Mr McIntyre, just answer the question you're asked, not what it is. I cannot get a journalist to answer a simple question, something they often complain about the persons they interview about. If it's yes or no, just yes or no. If anyone wants to know anything else, they'll ask you to add to it.

PN221

MR RYAN: It's true to say that Mr Hughes never returned to the Sydney newsroom as a reporter after Ms Sedgman entered into the fixed term contract?
---Yes, it's fair to say.

PN222

You also made it clear to Ms Sedgman during discussions about her future that you would be appointing more reporters in the Sydney newsroom. Is that correct?
---At a junior level, yes.

**** PAUL DAVID MCINTYRE XXN MR RYAN
PN223

Is there a set salary under the agreement for general reporters?---I'm not quite sure what we're talking. We start with cadets, we start in band 2 and then we work our way on up, depending on what grade they are, whether they're junior, intermediate, senior.

PN224

There's no set rate, is there, for a general reporter?---Depending on experience, no, there's not.

PN225

You could, when looking at filling those vacancies, have appointed, if you wished to, a journalist at any level within the structure?---No, I couldn't. I need to gain approval from the director for that and that comes back to based on what my staffing level numbers are, what my balance of staff are. I couldn't - I wouldn't be allowed to have all junior staff, I wouldn't be allowed to have all senior staff.

PN226

There's nothing in the agreement which says you can only appoint at a certain level?---To the best of my knowledge, no.

PN227

I have no further questions, your Honour.

<RE-EXAMINATION BY MR CARUSO [12.05PM]

PN228

MR CARUSO: Just a couple of questions. We've established that Mr Hughes returned to Sydney to take up his new role on 4 October. Why did you continue Ms Sedgman in a band 6 role?---Basically, there were some shifts available and I felt that, well, if it's not finishing till the end of October, rather than cutting her short because I'd intended and indeed committed to giving her some casual shifts in the future, why would I cut that short there and go, no, that's where it ends and here's the odd shift. I had some shifts available as I was going through the advertising process for the junior positions, so why not use Ms Sedgman.

PN229

Why couldn't that task continue beyond the end of October?---At that point we'd advertised the junior positions, Peter Hughes and the Dick Lopes' position when he was on radio had been merged. They had been advertised, I think, at the end of September, 30th, on the AB - that's our internal advertising thing - and with - due to a point, we wanted to have everything tidied up so from there on we'd agreed to give some casual work and we have a number of casuals and Jayne Maree was one of the people that we were giving work to.

PN230

No further questions, your Honour.

**** PAUL DAVID MCINTYRE RXN MR CARUSO
PN231

THE SENIOR DEPUTY PRESIDENT: Mr McIntyre, can you tell me, would she have been paid any differently in her work up to the end of her contract and her work as a casual?---Yes. She gets a 20 per cent loading.

PN232

What was she paid between 4 October and the end of October?---She was paid minus the 20 per cent loading, so she was paid straight point 27, plus any shifts that she did.

PN233

Anything arising out of my questions?

PN234

MR RYAN: No, your Honour.

PN235

THE SENIOR DEPUTY PRESIDENT: You may resume your seat?---Thank you.

<THE WITNESS WITHDREW [12.07PM]

PN236

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Ryan.

PN237

MR RYAN: Thank you, your Honour. I think it's important that we cite what the agreement actually says and how it applies in this particular set of circumstances. If we look at clause 16.2.2, what is the trigger for why we're here is:

PN238

If fixed term employment is extended beyond the date of termination -

PN239

That's not relevant:

PN240

Or the completion of a specified task.

PN241

That is relevant:

PN242

Then the subsequent employment will in most cases in fact be ongoing employment.

PN243

And on it goes. The evidence - - -

PN244

THE SENIOR DEPUTY PRESIDENT: Is there any precedent or decisions about what "in most cases" means?

PN245

MR RYAN: Not as far as my union is concerned and I'm unaware from the CPSU whether there's ever been a situation like this.

PN246

THE SENIOR DEPUTY PRESIDENT: I haven't heard of one and I've been in the panel for a while. I was just wondering.

PN247

MR RYAN: I think in most cases it's sorted, your Honour, or has been one way or the other. The evidence has shown through both Mr McIntyre on behalf of the ABC and Ms Sedgman our own witness, that the specified task was a backfilling for Mr Hughes while he was on a temporary transfer. That's contained in exhibit ABC1, it's contained, without mentioning Mr Hughes, in the contract itself but it's a matter of notoriety that Mr Hughes was the person that Ms Sedgman was replacing in the Sydney newsroom.

PN248

The evidence will also show that that temporary transfer came to an end when Mr Hughes was appointed to his new and substantive position of Sydney news editor. The date of that is an announcement, we think, in late August. Certainly there's a period of leave in September and actual duties are commenced on 4 October by Mr Hughes in his new position.

PN249

We say that the trigger for invoking clause 16.2.2 has been shown. The contract has extended past the reason it came into existence. The specified task had been completed and Ms Sedgman had been kept on in her role as a general reporter in the Sydney newsroom. So what flows from that? We have in most cases that employment would be ..... ongoing and the employer being formally notified as such by the ABC. Like all agreements, there's an out clause:

PN250

If the ABC asserts that any such sequential employment is not in fact ongoing employment, then the onus shall be on the ABC to establish that the employment is not in fact ongoing employment.

PN251

That they have not done so far, not through their evidence, not through Mr Caruso's opening statement.

PN252

On the contrary, what has been shown is that Mr McIntyre sought and was given approval to advertise for general reporters within the Sydney newsroom after Mr Hughes had been appointed to his substantive position. Nothing could be clearer than if the ABC has kept on Ms Sedgman as a general reporter after Mr Hughes' temporary transfer had come to an end and had taken steps to advertise for general reporters, there was an ongoing role in accordance with the agreement for Ms Sedgman. Of course, the evidence also shows that the salary that can be paid to any of these general reporters is within the full range of the salary - - -

PN253

THE SENIOR DEPUTY PRESIDENT: Yes, but does that matter, Mr Ryan? Sure, there was a role there for her to continue once Mr Hughes' temporary transfer was over, but they didn't have to keep filling it, did they, or have her in the role. They could advertise it or not have someone ..... at their discretion, couldn't they?

PN254

MR RYAN: I think not in this case. The situation is that she's working as a general reporter, her salary level is irrelevant to that. It's the position of a general reporter which is important because she's kept on working in that role after Mr Hughes' temporary transfer comes to an end. They could have said, look, I'm sorry, this position is now gone, we're going to have one less in the newsroom. We wouldn't quibble about that, but at the end of the day that's their decision they can take. We would have nowhere to go, we would have to accept that. They didn't, in fact they did the opposite. They expanded the size of the newsroom for general reporters in the full knowledge that Ms Sedgman is there working week in and week out after the reason for her being there has come to an end.

PN255

THE SENIOR DEPUTY PRESIDENT: What do you say about the conversations Mr McIntyre had with Ms Sedgman, advising her that there wouldn't be such a position for her and there would be casual work available? My concern is whether that comes within the - what were those words - "in most cases" were those conversations taken outside the usual case where nothing was said, she just continued on? Do those conversations make the difference?

PN256

MR RYAN: I think nothing much turns on it. I think that would just be the normal banter, Ms Sedgman being concerned about what's going to happen to her without having detailed knowledge of what rights she may have and there goes
Mr McIntyre being aware of the fact that, well, Ms Sedgman has been with the ABC the second time around since she came back after resigning, precariously, but in a practical sense there all the time, Mr McIntyre, doing what you expect any reasonable employer to do, saying, look, if the fixed term contract comes to an end, there is still going to be some work there for you on a casual basis and who knows what will turn up in the future.

PN257

Of course, we know the experience of Ms Sedgman has been previously that something has always turned up during the life of a fixed term contract to keep her within the ABC but this time it's even better because there are permanent positions being created for general reporters. That's what that whole clause is there for. It is legitimate for fixed term employment to be undertaken. On the other side of the coin, if it really isn't fixed term employment, then the ABC continue to freely agree that people would then convert to ongoing in certain circumstances.

PN258

We say this is one of those circumstances that triggers this particular clause because there were vacancies acknowledged and sought to be filled by people doing the work of Ms Sedgman in that newsroom while she was there on a form of employment under a contract which had continued past the reason for the completion of that specified task for a period of almost a month at the very least and more likely some two months.

PN259

That's why we say this contract in the circumstances triggers, we would say, the operation of this clause and that on the facts before you, which ..... each case is trite to say, but I think it's true, each case stands on its own facts. We say the facts in this particular case are ones that trigger the operation of 16.2.2 to convert Ms Sedgman to ongoing employment. If the Commission pleases.

PN260

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, Mr Caruso.

PN261

MR CARUSO: Thank you, your Honour. I might just go to clause 16.2.2, the second part of that clause where Mr Ryan just said that we haven't provided any evidence to establish that the employment was not in fact ongoing employment in Ms Sedgman's case. In fact, in Ms Sedgman's evidence and in Mr McIntyre's evidence it was both their evidence that it was understood that come the end of October, at the completion of that specified task, there would be no ongoing work beyond the completion of that specified task.

PN262

Mr McIntyre explained to Ms Sedgman that there would be other jobs but they would be lower level jobs and some of them for overnight reporting. There was nothing stopping Ms Sedgman applying for those jobs and it was Ms Sedgman's evidence again that, even in discussions that she'd had with other people in the organisation that it's possible that after this specified contract, there might be other things come up. But there was no guarantee given to her either by Mr McIntyre or anyone else in the organisation that that specified task would continue beyond the anticipated end date and that she would become an ongoing employee simply because there might be other jobs around after that.

PN263

THE SENIOR DEPUTY PRESIDENT: I should tell you, Mr Caruso, that I'm not troubled about that aspect of it. What troubles me is whether or not the task finished on the 4th.

PN264

MR CARUSO: We say the task was for a general reporter band 6 and Mr McIntyre as the manager believed that that task at band 6 would be required at the end of October.

PN265

THE SENIOR DEPUTY PRESIDENT: That isn't how the task is described in the document that the task is to fill in a position for a band 6 arising out of the temporary transfer of an incumbent and to a date which is convenient to the employer arising out of that transfer. It's simply for the duration of the temporary transfer of the incumbent which, the evidence is, ceased on the 4th. Mr McIntyre may have erred on the side of generosity in thinking that he would extend the period to the end of October, that being what was anticipated would be the date that Mr Hughes would return. I'm just worried about what the effect of that is.

PN266

MR CARUSO: I suppose the counterargument to that is if we had terminated her employment on 4 October and said that that was the end of the specified task, there's also the fact that there were rosters put up which had Ms Sedgman on the roster until the end of October. I would argue that there's also an obligation there - I think the MEAA would be coming back to us in a different way if we had terminated her on 4 October.

PN267

THE SENIOR DEPUTY PRESIDENT: They wouldn't get very far though, just in case you're thinking of it, Mr Ryan.

PN268

MR RYAN: No, no, enough work in our place already, your Honour.

PN269

MR CARUSO: Our argument is simply the fact that Mr Hughes returned on 4 October doesn't automatically stop that specified task contract. In Mr McIntyre's position he decided to continue her on in the band 6. After the end of October he didn't require a band 6 any more, he decided that there were vacancies but they would be filled at a lower level as is his right, editorially right to do so. Ms Sedgman could have applied for them.

PN270

THE SENIOR DEPUTY PRESIDENT: Where do you get the definition of the task as being filling in a band 6 job? Where is that in the contract? What is the contract? Find it. Does it arise out of the position and duties clauses?

PN271

MR CARUSO: It just simply says - - -

PN272

THE SENIOR DEPUTY PRESIDENT:

PN273

The position will be a program maker band 6 schedule B and your task is commencing on 25 April and continue for the duration of the temporary transfer of the incumbent.

PN274

Does 2.2 refer to the duration of the task?

PN275

MR CARUSO: 2.2 refers to the duration of the task.

PN276

THE SENIOR DEPUTY PRESIDENT: Do you have a copy of that clause there for me? I just don't have it in front of me. Do you, Mr Ryan?

PN277

MR RYAN: I think I've given all mine away, your Honour.

PN278

THE SENIOR DEPUTY PRESIDENT: I'm sorry, Mr Caruso, I've interrupted you.

PN279

MR CARUSO: Even in the event if we were to say that the specified task completed on 4 October, I think also, as I said earlier, we need to look at the last clause, whether in fact the employment was ongoing. I can't see how we can determine that the employment is ongoing if I think the evidence is that all parties were in agreement and understood, that come the end of October Ms Sedgman will no longer be employed as - - -

PN280

THE SENIOR DEPUTY PRESIDENT: When you say the last clause, what's that?

PN281

MR CARUSO: Sorry, not the last clause, the last paragraph in 16.2.2, that the onus is on the ABC to establish that in fact the employment is not ongoing. Our argument is, there is no ongoing role, we don't need a general reporter at band 6, beyond the end of October. That was Mr McIntyre's evidence that we don't need an ongoing - if Mr McIntyre required her role on an ongoing basis, then the agreement puts an onus on him to advertise it and he would have to advertise it if he wanted a band 6 or any kind of a level and Ms Sedgman would have to apply for it and win it on merit.

PN282

Our argument is, even if we were to say the specified task ended on 4 October, that doesn't establish it is ongoing employment for Ms Sedgman in any event, that there is an obligation on the organisation to advertise and for employees to apply and win it on merit.

PN283

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, I understand. I interrupted you, I'm sorry, Mr Caruso.

PN284

MR CARUSO: That's all right. I don't think I have that much more to say, your Honour. I think the argument hinges on the end date and my point is that I think there was understanding between the parties that 4 October was not the end date, that in fact the end date was the end of October and the rosters reflected that, your Honour. If the Commission pleases.

PN285

THE SENIOR DEPUTY PRESIDENT: Thank you. Have you got anything to say in reply?

PN286

MR RYAN: Just one thing, we're not in agreement about what the end date
was, your Honour. The end date was coming to the end of Mr Hughes' temporary transfer. The October was only an indicative date because at that stage it was dependent on the person returning from maternity leave. That was altered by the temporary transfer coming to an end when Mr Hughes got a new substantive position. There was no other temporary transfer and in fact Ms Fiona Reynolds took over backfilling a maternity leave position in September when Mr Hughes was on leave.

PN287

THE SENIOR DEPUTY PRESIDENT: Thank you. I'm concerned that there should be no alteration in the offering of shifts to Ms Sedgman whilst I am considering this matter or at all arising out of these proceedings, Mr Caruso. Can I have your undertaking that you sought instructions and that that will be the case?

PN288

MR CARUSO: Absolutely, your Honour.

PN289

THE SENIOR DEPUTY PRESIDENT: Should Ms Sedgman want to access her accumulated funds without prejudice to the determination of this matter by me, do you have any objection to it being without prejudice?

PN290

MR CARUSO: Sorry?

PN291

THE SENIOR DEPUTY PRESIDENT: Her access to her entitlements if she wishes to use them, do you have any objection to that access being without prejudice to the outcome in these proceedings?

PN292

MR CARUSO: No, your Honour, I have no objection.

PN293

THE SENIOR DEPUTY PRESIDENT: Would that suit you?

PN294

MR RYAN: Yes, your Honour.

PN295

THE SENIOR DEPUTY PRESIDENT: Given the upcoming Christmas period, I thought that might be convenient, it won't put any pressure on anybody about it.

PN296

MR CARUSO: Yes, your Honour.

PN297

THE SENIOR DEPUTY PRESIDENT: Is there anything else?

PN298

MR RYAN: No, thank you, your Honour.

PN299

THE SENIOR DEPUTY PRESIDENT: The Commission is adjourned. If I don't see you before, have a Merry Christmas.

<ADJOURNED INDEFINITELY [12.27PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #MEAA1 EMAIL DATED 5/12/2005 PN11
EXHIBIT #ABC1 ABC CHRONOLOGY PN11
EXHIBIT #ABC2 CESSATION OF PAY FORM NON-REDUNDANCY PN56
JAYNE MAREE SEDGMAN, SWORN PN67
EXAMINATION-IN-CHIEF BY MR RYAN PN67
CROSS-EXAMINATION BY MR CARUSO PN107
THE WITNESS WITHDREW PN132
JAYNE MAREE SEDGMAN, ON FORMER OATH PN139
CROSS-EXAMINATION BY MR CARUSO, CONTINUING PN139
THE WITNESS WITHDREW PN150
PAUL DAVID MCINTYRE, SWORN PN154
EXAMINATION-IN-CHIEF BY MR CARUSO PN154
CROSS-EXAMINATION BY MR RYAN PN181
EXHIBIT #ABC3 MS SEDGMAN'S CONTRACT PN184
RE-EXAMINATION BY MR CARUSO PN227
THE WITNESS WITHDREW PN235