C2006/2878, Transcript of Proceedings [2006] AIRCTrans 1266 (6 December 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 16177-1

DEPUTY PRESIDENT HAMILTON

C2006/2878

CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION
AND
DEPARTMENT OF JUSTICE
s.170LW -prereform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/2878)

MELBOURNE

10.26AM, THURSDAY, 23 NOVEMBER 2006

Continued from 12/10/2006

PN1

MR P HANLEY: I appear for the CPSU and with me is MR C MCLOUGHLIN.

PN2

MR N HARDING: I appear your Honour.

PN3

THE DEPUTY PRESIDENT: Okay written submission and written statements have been provided thank you for that. I guess the first thing to do is set procedure. First of all do we need to call – first of all clearly witnesses will be called, will have to be called if the other side wishes to cross-examine them. Which witnesses do we need to call if any? Or do we simply admit the witness statements?

PN4

MR HANLEY: I had some discussion with Mr Harding about the question of witnesses and he’s advised that he only needed the one witness from the statements would be submitted and with me is Charlie McLoughlin.

PN5

THE DEPUTY PRESIDENT: Okay that’s fine.

PN6

MR HARDING: With me I have Mr Walker.

PN7

THE DEPUTY PRESIDENT: How many of the applicant’s witnesses do you wish to cross-examine.

PN8

MR HARDING: It would have been nice to have had at least the witnesses attending, but one will suffice.

PN9

THE DEPUTY PRESIDENT: Okay, sorry Mr Hanley of the employer’s witnesses do you wish to cross-examine if any?

PN10

MR HANLEY: Your Honour, both.

PN11

THE DEPUTY PRESIDENT: All right perhaps what we’ll do is call the – first starting with the applicant and then the employer and then go into submissions. Would that be an appropriate way to proceed, or someone got a better idea?

PN12

MR HANLEY: No, that’s fine thank you your Honour.

PN13

THE DEPUTY PRESIDENT: Is that fine with you?

PN14

MR HARDING: That’s fine, your Honour. If I could trouble the Commission one of my witnesses has an appointment at the Melbourne airport and it would be very good for him to go early, if that wouldn’t upset proceedings.

PN15

THE DEPUTY PRESIDENT: Well I don’t know, what do you want?

PN16

MR HANLEY: No objection to that.

PN17

THE DEPUTY PRESIDENT: Well should we put him on first and get it over would that be the way to go?

PN18

MR HANLEY: Yes, I think that’s best.

PN19

THE DEPUTY PRESIDENT: And the other thing is would the other witnesses leave the room perhaps.

PN20

MR HARDING: I’m actually comfortable for them to remain if that doesn’t upset the Commission.

PN21

THE DEPUTY PRESIDENT: All right I have no difficulty if that’s your view as well.

PN22

MR HANLEY: That’s fine.

PN23

THE DEPUTY PRESIDENT: Okay all witnesses will stay, marvellous then we will start with the first witness.

PN24

MR HARDING: Mr Eyre-Walker please.

<DAVID NORMAN EYRE-WALKER, SWORN [10.29AM]
<EXAMINATION-IN-CHIEF BY MR HARDING

PN25

THE DEPUTY PRESIDENT: Sorry which witness is this?

PN26

MR HARDING: Mr David Eyre-Walker.

PN27

THE DEPUTY PRESIDENT: Right Mr Harding.

PN28

MR HARDING: Would you please state your full name?---David Eyre-Walker.

PN29

Is there any aspect to this statement that you wish to either amend or correct?
---No, I don’t need to amend or correct anything.

PN30

If the Commission pleases I don’t have any questions in relation to the - - -

PN31

THE DEPUTY PRESIDENT: Do you want him ask him about he witness statement?

PN32

MR HARDING: Would you like to tender the witness statement?

PN33

THE DEPUTY PRESIDENT: No, you tender it.

PN34

MR HARDING: Sorry.

EXHIBIT #J1 WITNESS STATEMENT OF DAVID NORMAN EYRE-WALKER

PN35

MR HARDING: Could I draw your attention to exhibit DW1.

PN36

THE DEPUTY PRESIDENT: An attachment is it?

PN37

MR HARDING: Yes.

PN38

THE DEPUTY PRESIDENT: I have it.

PN39

MR HARDING: Is that an extract from the former public service determinations?---It certainly is.

PN40

Could I take you to exhibit DW2 please.

PN41

THE DEPUTY PRESIDENT: Are they referred to in the witness statement itself?

**** DAVID NORMAN EYRE-WALKER XN MR HARDING
PN42

MR HARDING: Yes.

PN43

THE DEPUTY PRESIDENT: Well there’s no need then.

PN44

MR HARDING: No, need okay.

PN45

THE DEPUTY PRESIDENT: I mean unless someone has a difficulty, I don’t. Is the statement true and correct?---It is.

PN46

Anything else.

PN47

MR HARDING: I have no further questions.

PN48

THE DEPUTY PRESIDENT: Thank you for that. Mr Hanley?

<CROSS-EXAMINATION BY MR HANLEY [10.31AM]

PN49

MR HANLEY: Mr Eyre-Walker, you and I have both been around for a long time to remember the personnel management manuals and public service determinations and regulations but there have been some subsequent changes to those and I note in your statement in regard to travel time, and suggesting that should be at ordinary rates of pay and that arises as I understand and you probably do as well from the old time in lieu provisions. The old time in lieu provisions that provided where a public servant took time in lieu of overtime that that time was hour for hour and that was the arrangement up until the 2003 agreement is my understanding, is that your understanding?---Well what the old determination actually said was that in respect of any period of excess travelling time, it would be granted an equivalent period of time off during normal hours of duty.

PN50

Yes that’s right and that was based on the time in lieu provisions that existed at that time, it was time for time, rather than an overtime payment and excess travel time was always dealt with in that context. In regard to the travel component and the EB, the enterprise agreement provides that prior approval from the employer what form does that prior approval take, in a prescribed form?---I think there’s a confusion of two issues here. What I was talking about before was excess travelling time and excess travelling time provision in the VPS agreement 2006 provides that for the - - -

PN51

THE DEPUTY PRESIDENT: Where are you reading from?---From the Victorian Public Service agreement.

**** DAVID NORMAN EYRE-WALKER XXN MR HANLEY
PN52

What clause?---Clause 60.2 your Honour.

PN53

Thank you very much?---And there are two issues.

PN54

I have that?---Yes, the clause 60.2 specifically provides that for excess travelling time any period of additional time is regarded as time worked. So that is what a person gets for excess travelling time.

PN55

Sorry say that again could you?---Yes, the excess travelling time provision under 60.2 where an employee qualifies for excess travelling time that is what they get under the agreement. The get for any period of additional travel time it is not just travel time, it has to be additional to what is normal. That would – they would then - that additional travelling time would be regarded as time worked and that is what we negotiated for both the 2004 and 2006.

PN56

MR HANLEY: We have no argument with that?---Yes, that differs very much from the private motor vehicle use, which your Honour is clause 31.4.

PN57

THE DEPUTY PRESIDENT: Bear with me while I mark these clauses again. Sorry clause what?---Clause 31.4, your Honour and clause 31.4 specifically provides for the private – for use of a private motor vehicle and it’s in the course of his or her employment and it’s specifically provides that there must be prior approval by the employer before it can be used and that the employee must also submit a declaration statement, the date, the purpose of the trip, and the number of kilometres travelled and that was also negotiated for the 2004 agreement and the same clause was put into the 2006 agreement.

PN58

MR HANLEY: We have no - - -

PN59

THE DEPUTY PRESIDENT: It’s not very useful for people to read out clauses.
MR HANLEY: Yes.

PN60

THE DEPUTY PRESIDENT: I mean if you’ve got a question to ask Mr Hanley, that’s - - -

PN61

MR HANLEY: I’ll refer to the clause, yes.

PN62

THE DEPUTY PRESIDENT: But it’s new and different please do so.

**** DAVID NORMAN EYRE-WALKER XXN MR HANLEY
PN63

MR HANLEY: Just and I want to deal with time component, travel time component separate to the travel cost component. With clause 60.2 and we have no objection to that it regards the time as time worked. That’s the additional travel time, the time over and above the usual time that it would have taken to get to work and there’s no argument on that your Honour on same.

PN64

With regard to the time, and the time being regarded as time worked, in your witness statement you alluded to the fact that it should be at ordinary rates of pay?---Well it says - - -

PN65

THE DEPUTY PRESIDENT: Where does it say that? When people are mentioning paragraphs in witness statements or clauses of the agreement I want to be told what they are, all right?

PN66

MR HANLEY: Okay.

PN67

THE DEPUTY PRESIDENT: Thank you, where is it?

PN68

MR HANLEY: It’s in reference clause 7 where the former public service determinations are clause 10.10 provide guidance on the historical application of excess travel time and at the attachment clause 10.10 – excess travel time, 10.10, 10.10.2:

PN69

The total period of time off duty other than time off in lieu of overtime to which an officer or employee shall be entitled whether wholly or in respect of excess travelling time or in conjunction with leave credits under scheme of flexible working hours shall be limited to a maximum of seven hours 36 in any fortnightly period.

PN70

I’m just trying to find there, there’s a reference in here to that being at hour for hour.

PN71

THE DEPUTY PRESIDENT: You know, can I make this comment, if we are dealing with issues of legal interpretation, I’m not entirely sure the witness evidence actually takes much further, it may be a matter for submissions subject to what anybody says. I mean I am making no criticism of anybody.

PN72

MR HANLEY: Yes, and I guess the determinations are historical documents but there are points here that are relevant subsequent to that which I guess can be covered in the opening submissions.

**** DAVID NORMAN EYRE-WALKER XXN MR HANLEY
PN73

THE DEPUTY PRESIDENT: I think that’s right.

PN74

MR HANLEY: So the only questions I have are in relation to clause 31 prior to the motor vehicle use clause being 1.4 and at 31.4.2 the provision provides:

PN75

That the employee must obtain prior approval of the employer before using the private motor vehicle during the course of their employment.

PN76

My question is what does that mean? What constitutes prior approval?---What it means then we specifically negotiated this and we actually spent quite some time negotiating the clauses relating to the private vehicle use. In those negotiations the employer took the very firm view which was finally agreed in the negotiations that we should continue with a provision that before there is private motor vehicle use, during the course of employment it must be approved – there must be prior approval by the employer.

PN77

So am I right in saying you continue with the provision and having prior approval?---Correct.

PN78

THE DEPUTY PRESIDENT: Sorry, so the point is that an earlier provision has continued is that it?

PN79

MR HANLEY: That’s right.

PN80

THE DEPUTY PRESIDENT: If the earlier provision had those words, I can just look at the two provisions and I’ll find that for myself won’t I?

PN81

MR HANLEY: Yes.

PN82

THE DEPUTY PRESIDENT: I don’t need evidence about that.

PN83

MR HANLEY: Now and so going back to the question of what that prior approval what form that takes, that’s my question, is how does an employee achieve prior approval?---Well the agreement actually – we didn’t specifically go into those details in the agreement, what we negotiated was a principle to be put into the agreement that there must be prior approval. We would then leave it to the employer to determine what the administrative arrangements would be for this prior approval. We decided not to be those sort of administrative arrangements into the agreement.

**** DAVID NORMAN EYRE-WALKER XXN MR HANLEY
PN84

No further questions.

PN85

THE DEPUTY PRESIDENT: All right. Any re-examination?

PN86

MR HARDING: No, thank you, your Honour.

PN87

THE DEPUTY PRESIDENT: Thank you for giving evidence you are excused.

<THE WITNESS WITHDREW [10.41AM]

PN88

THE DEPUTY PRESIDENT: Right I think we return to the applicant’s evidence, don’t we, Mr Hanley?

PN89

MR HANLEY: Yes, I call Charles McLoughlin.

<CHARLES VINCENT MCLOUGHLIN, SWORN [10.42AM]
<EXAMINATION-IN-CHIEF BY MR HANLEY

PN90

MR HANLEY: Mr McLoughlin, can you state for the record your name?
---Charles Vincent McLoughlin.

PN91

Have you submitted a witness statement for the Commission?---Yes, I have.

PN92

I will tender that.

EXHIBIT #C1 WITNESS STATEMENT OF CHARLES VINCENT MCLOUGHLIN

PN93

MR HANLEY: Are there any amendments or alterations you wish to make to your witness statement?---No.

PN94

Just a couple of points to cover in relation to some of the responding witness statements?

PN95

MR HARDING: Excuse me, should statements be confined to the nature of the witness’s statement?

PN96

THE DEPUTY PRESIDENT: Well Mr Hanley?

PN97

MR HANLEY: Perhaps if I ask the question your Honour and then if Mr Harding has an objection he can raise it then.

PN98

THE DEPUTY PRESIDENT: Yes, sure. If evidence is put against them they’re allowed to – they need to respond.

PN99

MR HANLEY: You were based at Barwon prison?---Yes.

PN100

You were advised of a start date which is part of your witness statement to begin employment at the Metropolitan Remand Centre on what date?---23 January.

PN101

23 January and were there any other MRC employees who were assigned to work Barwon prison during the time that you were?---There were quite a number, I think it was over 20 odd.

**** CHARLES VINCENT MCLOUGHLIN XN MR HANLEY
PN102

Were there any travel arrangements made for those officers?---No, what we did we put in applications for the travel, but we are still waiting on an outcome, that’s what we did. We make waiting on the outcome of that. So we’ve made application for the claim in but it’s still been on hold since that time.

PN103

So have you ever made any other - - -?---We did that probably a fortnight afterwards.

PN104

So you made a travel finding?---Yes, I think a lot of staff were supposed to transfer to MRC and had placed the claims in but there’s no response to it, to my knowledge.

PN105

All right are you aware of what prior approval arrangements existed for private travel?---My knowledge was you put in your application and it would be authorized in due course for this.

PN106

THE DEPUTY PRESIDENT: So there’s a specific form is there?---There’s a specific - - -

PN107

It’s got a name hasn’t it?---It’s just travel claim expense form.

PN108

Thank you, right?---I’m not sure what number it has sir.

PN109

MR HANLEY: Indeed there is a copy of some of the originals there. Have you ever claimed any other personal expense?---About two years I had to travel to the Primus court in Geelong, because it is only 10 ks further down the road Barwon I only just claimed parking for a few dollars and I just went to the staff office with the receipt and they just paid me out of petty cash for it. It was just the coroner’s court in Geelong, so I wasn’t travelling to the city or anything.

PN110

So you’ve not had another occasion where you’ve had prior to motor vehicle use and needed to make a claim? This is the first time you’ve made a claim for private motor vehicle use?---Only when for taxation purposes when I’m doing training courses et cetera.

PN111

Were there any other officers who were deployed from MRC to Barwon prison while you were still working there who had to make their own travel arrangements? Are you aware of any other officers who were deployed?
---Deployed, from – who were supposed to be at the MR site.

**** CHARLES VINCENT MCLOUGHLIN XN MR HANLEY
PN112

From the Melbourne Remand Centre?---Other training staff who attend prison for training purposes and their instructors, not to my knowledge.

PN113

So there were trainees who came from - - -?---MRC and other prisons.

PN114

How did they travel?---I believe most of them travelled by a bus from MRC to Barwon or a government vehicle.

PN115

Were they required to travel in their own time?---No they are allowed travel time in the eight hour period to my knowledge.

PN116

Just a question about your rosters whilst you remained at Barwon, were you still working in your usual location at Barwon were you’d previously been working? Or what was the rostering arrangements?---What happened I was supposed to start on the Monday, sorry Sunday and my roster finished on the Saturday because it starts Saturday Sunday.

PN117

So where were you just - - -?---I finished my roster Saturday, so my last day of the leave was Friday at Barwon.

PN118

Friday 20 January?---Yes, but then I got a phone call from the staff office saying I was required to return to Barwon on Monday and there was just a phone call saying you have to return to work at Barwon on Monday, so I had two days - - -

PN119

THE DEPUTY PRESIDENT: So prior approval for travel arrangements was never given, is that right?---Sorry sir?

PN120

Prior approval to travel arrangements was never given, is that right?---Not really sir. I was - - -

PN121

MR HANLEY: The question for us more is what constitutes prior approval.

PN122

THE DEPUTY PRESIDENT: Right, yes.

PN123

MR HANLEY: In relation to rosters whilst you remained at Barwon prison, did you work – prior to 20 January whereabouts did you work at Barwon prison?---I was in Diosma at that stage.

PN124

At that stage and what was your classification?---I was a senior prison officer.

**** CHARLES VINCENT MCLOUGHLIN XN MR HANLEY
PN125

Following the 20 January, where did you work at Barwon prison?---My first few weeks just at place stays, contractor escorts, all over the place. Wherever there was a vacancy or a sickie they just put me there in the position available at the time.

PN126

So you didn’t work in Diosma unit?---Later on I did.

PN127

THE DEPUTY PRESIDENT: In what unit?

PN128

MR HANLEY: Diosma, each of the prison locations has units in the prison and there are unit staff assigned to those units and Mr McLoughlin was a unit staff member at Diosma whilst he was at Barwon prison.

PN129

THE DEPUTY PRESIDENT: Diosma short for something?

PN130

MR HANLEY: No, that’s just the name of the unit.

PN131

THE DEPUTY PRESIDENT: No, that’s fine, it’s just that when you use these names, you know what they mean, but I may not know necessarily.

PN132

MR HANLEY: Yes?---But to further that some of the duties I was passed to carry out – I was a senior prison officer and still am, I was asked to do prison officer duties such as contract escorts, bits and pieces whatever is available. So I wasn’t fulfilling my designated position at the time.

PN133

No further questions.

PN134

THE DEPUTY PRESIDENT: Thank you. Mr Harding?

<CROSS-EXAMINATION BY MR HARDING [10.49AM]

PN135

MR HARDING: I only have a few your Honour, I must apologise I’ve come with the wrong glasses today, these are slightly tinted so I’m not being discourteous deliberately.

PN136

THE DEPUTY PRESIDENT: I have no difficulty with that.

PN137

MR HARDING: Thank you your Honour.

PN138

Mr McLoughlin, I just want to ask a couple of questions. Before Friday,
20 January, how far were you travelling to work on a daily basis?---It was probably about 52 kilometres roughly.

**** CHARLES VINCENT MCLOUGHLIN XXN MR HARDING
PN139

On 23 January, which was the day that you sort of recommenced, how far were you travelling?---The same distance. It’s always been 52, 54 depending on which way you have to go.

PN140

So in fact between the 20th and the 23rd there was no difference in the distance that you were travelling on a daily basis?---No distance?

PN141

No difference between the distances you travel on either the 20th and 23rd?---In between I’ve got rostered days off.

PN142

What date did you start at the MRC, I should point out that it’s the Melbourne Remand Prison?---In June.

PN143

Beg your pardon?---In June.

PN144

THE DEPUTY PRESIDENT: Isn’t it called the Metropolitan Remand Centre?

PN145

MR HARDING: Sorry, Metropolitan Remand Centre. How far, following your commencement at the MRC how far were you travelling to work on a daily basis?---To the Metropolitan Remand Centre, it’s around the 20 kilometre mark. But there are various ways to go there, depending on the traffic conditions. The back way you can cut by Werribee, which cuts down about 17 kilometres, there is a longer way via Deer Park which is about 24, 25.

PN146

Which option did you opt to take?---I go, depending on the traffic flow, I go the quickest way I can get there, the quickest way possible. When you had discussions with your supervisor about or the staff office, in terms of your re-commencement at Barwon, was there any discussion or approval given for payment of excess travelling time or mileage?---At the time I was very upset about it because I virtually that day they - - -

PN147

THE DEPUTY PRESIDENT: Just answer the question please. Listen to the question and answer it?---Sorry.

PN148

That’s all right.

PN149

MR HARDING: It was just a question as to whether or not in those discussions the issue of travelling time and mileage was canvassed and whether or not specific approval was given?---No not to my knowledge.

**** CHARLES VINCENT MCLOUGHLIN XXN MR HARDING
PN150

If the Commission pleases I have no further questions.

PN151

THE DEPUTY PRESIDENT: Sorry, I have one question. So you were based at Barwon, is that right?---Yes, sir.

PN152

Then at what date you got a job at the MRC, that’s right you were advised to start on 23 January 2006?---I had a letter of offer which I’d signed and sent back with a start date of 23 January sir.

PN153

Okay then that was then cancelled is that right and then you continued on at Barwon for what period,?---Until I was transferred in June, I think it was 16 June.

PN154

Sorry?---16 June.

PN155

I see and the travel time claim you’re making is for that period?---Yes sir.

PN156

Between 23 January and 16 June is that right?---Yes.

PN157

Terrific thanks for that. Nothing further?

<RE-EXAMINATION BY MR HANLEY [10.53AM]

PN158

MR HANLEY: On Friday 20 January, that’s the day you became aware that you weren’t going to start at Mr C?---Yes.

PN159

You weren’t going to go to MRC?---Yes.

PN160

What action did you take on that day?---I was upset about it naturally so the first thing I thought I rang myself and asked what was happening because there was no information given to me other than be back at Barwon Monday. It was very short to the point conversation on the phone.

PN161

How were you advised again?---I was told that my transfer wasn’t happening and I was to start work on Monday back at Barwon.

PN162

Who advised you?---Sue Blackett the staff office at Barwon. Immediately I then phone myself about it to find out what’s going on.

PN163

No further questions your Honour.

**** CHARLES VINCENT MCLOUGHLIN RXN MR HANLEY
PN164

THE DEPUTY PRESIDENT: Right thanks very much for giving evidence, you are excused.

<THE WITNESS WITHDREW [10.54AM]

PN165

THE DEPUTY PRESIDENT: Now do we tender the rest of the witness statements or not? Do we throw them in the bin? I mean are you seeking to tender them?

PN166

MR HANLEY: I will seek to tender all the remaining seven witness statements?

PN167

THE DEPUTY PRESIDENT: Any objection? Yes or no is the answer.

PN168

MR HARDING: No, I don’t have any objections.

PN169

THE DEPUTY PRESIDENT: Right.

EXHIBIT #C2 WITNESS STATEMENT FOR CHARLES BALAZS
EXHIBIT #C3 WITNESS STATEMENT FOR BRETT BURQUEST
EXHIBIT #C4 WITNESS STATEMENT OF MALCOLM CHARLES FRAME
EXHIBIT #C5 WITNESS STATEMENT OF MICHAEL G HAYES
EXHIBIT #C6 WITNESS STATEMENT PETER KENNEDY

PN170

THE DEPUTY PRESIDENT: That’s it is it? Have I missed any?

PN171

MR HANLEY: There were two further.

PN172

THE DEPUTY PRESIDENT: Sorry I missed.

EXHIBIT #C7 WITNESS STATEMENT OF CHARLES GOODIN

PN173

MR HANLEY: Was Balazs?

PN174

THE DEPUTY PRESIDENT: Yes, Balazs is there he’s C2.

PN175

MR HANLEY: That will be sufficient thanks your Honour.

PN176

THE DEPUTY PRESIDENT: Okay, marvellous. Next employer witness I think.

PN177

MR HARDING: Mr Rod Wise please.

<RODERICK JOHN WISE, SWORN [10.56AM]
<EXAMINATION-IN-CHIEF BY MR HARDING

PN178

MR HARDING: Could you please state your full name?---Roderick John Wise.

PN179

You have prepared a statement in this matter?---I have.

PN180

Are there any corrections, variations or alterations you wish to make?---There are two minor alterations your Honour if I may. On paragraph 15 on re-reading it this morning I thought the second sentence was probably unclear, when I talk about for privacy reasons, the email was sent as a blind copy to the staff so email addresses did not become public what I was trying to say is that it was sent as a blind copy so that the circumstances of those staff members weren’t disclosed to other people.

PN181

THE DEPUTY PRESIDENT: Do you want me to add in those words?---If you wouldn’t mind sir.

PN182

Okay, so that the circumstances of those people were not- - -?---Were not disclosed.

PN183

Do I remove the other words?---You may your Honour yes.

PN184

So the words, so staff email addresses did not become public, CER2 I deleted is that right?---That’s correct your Honour.

PN185

MR HARDING: And in paragraph 16, this is a very minor typographical error the last dot point, in the last line of that dot point, the word should be transfer, not transferred, it makes more sense

PN186

THE DEPUTY PRESIDENT: Transfer.

PN187

MR HARDING: Transfer. If the Commission pleases I would like to tender that statement and the attached.

EXHIBIT #J2 WITNESS STATEMENT OF RODERICK JOHN WISE

PN188

MR HARDING: I have no questions in the examination.

<CROSS-EXAMINATION BY MR HANLEY [10.58AM]

PN189

MR HANLEY: If I take you to paragraph 6 of your statement Mr Wise?---Yes.

**** RODERICK JOHN WISE XXN MR HANLEY
PN190

If I just go through that:

PN191

In September 2005 Corrections Victoria commenced examination of staffing levels at various prison locations in the lead up to commencing operations in early 2006 of the new prisons at Lara that being Marnganeet and Truganina being the Metropolitan Remand Centre. In the lead up to commencing operations at these new prisons, Corrections Victoria had been operating with temporary beds at the number of locations and the examining of staffing levels enabled identification of staff funding specifically attached to those temporary beds and enabled the transfer of that funding to and so called staffing of the new locations as those new prison beds came on line.

PN192

These been some difficulty I guess in projecting prisoner numbers in the Victorian prison system?---These always some difficulty yes.

PN193

So the need for temporary beds was faced previously with the establishment of the new prisons, was to do away with the temporary beds that currently existed within the system?---The demand exceeded the supply and we had the need for around 900 temporary beds in the system in the system at that time.

PN194

Were there projections made about what the prison populations - - -

PN195

MR HARDING: Is that entirely relevant to this matter?

PN196

THE DEPUTY PRESIDENT: I’m not entirely sure. Mr Hanley do you want – I’m happy to rely on you to be relevant, I just ask it to be relevant if that’s all right. Will it be relevant will it to the ultimate issue at question?

PN197

MR HANLEY: I guess the relevance goes to the issue of planning and the difficulty of planning based on the fact that ultimately planning can only be based on forward projections and if those forward projections aren’t accurate then the planning aspect has an affect on the operations.

PN198

THE DEPUTY PRESIDENT: How does that relate to whether an entitlement to an allowance under the agreement exists or not, which is the issue which I have to try and determine? I’m not sure I see the relevance I may be a bit slow.

PN199

MR HANLEY: I guess it goes to paragraph 12, or paragraph 12.12 of the witness statement.

**** RODERICK JOHN WISE XXN MR HANLEY
PN200

THE DEPUTY PRESIDENT: Do you want to discuss this in the absence of the witness feel free to do so.

PN201

MR HANLEY: No, I’ll leave that your Honour.

PN202

THE DEPUTY PRESIDENT: That’s fine okay. All right if you are coming to it I will rely on your - - -

PN203

MR HANLEY: No it was simply an acknowledgement of the difficulties in planning due to the opening of the new prisons and the prisoner projection numbers. But in early 2006 it became apparent that the new prisons would not be ready for commencement of operations. Can you tell us when in 2006, or what too early means?---Well there were different issues for both of the new prisons, but there were some delays relating to the physical build of the new prisons. The security systems and we weren’t absolutely sure how long it would take to resolve those issues at either of those two locations.

PN204

So was that in January, or was that in February?---Well in January and February it become increasingly evident that there would be delays yes.

PN205

What the original planned operational commencement for having prisoners at the Metropolitan Remand Centre?---I can’t recall anymore I’m sorry.

PN206

In commissioning a prison what processes are undertaken prior to taking in prisoners?---Well there’s a range of planning requirements and testing requirements so we stagger the introduction of staff into a new prison, where a small team gets together to work out operating procedures and so on, develop emergency plans, ensure that the operational requirements of the prison are ready upon the introduction of prisoners into the site and then there’s a whole heap of physical aspects of the prison that need to be tested.

PN207

When was it planned that the Metropolitan Remand Centre would be full, at capacity?---I think we allowed three months from the first prisoner. So there would be a staggered introduction of prisoners, building up to full capacity over a three month period.

PN208

So in your statement here that commencement of operations, did that mean commencement of operations with prisoners, or the preliminary operations of trying out the systems to be a commissioned prison?---I think it means first prisoner. So that would suggest that that would be a first prisoner date.

**** RODERICK JOHN WISE XXN MR HANLEY
PN209

So based on that and filling up over a three month period you were expecting to have the Metropolitan Remand Centre full by the end of June?---I think that’s right, yes.

PN210

Can I tender a document, your Honour.

PN211

MR HARDING: Perhaps it should have been tendered during the evidence.

PN212

THE DEPUTY PRESIDENT: Look show the documents to Mr Harding and then put it to the witness if it’s relevant. He’s allowed to ask relevant questions from it.

PN213

MR HANLEY: I have no objection.

PN214

THE DEPUTY PRESIDENT: You are entitled to a copy as well Mr Harding.

PN215

MR HARDING: It’s a document that’s well known.

PN216

THE DEPUTY PRESIDENT: You know it, do you, okay. Go on.

PN217

MR HANLEY: I wish to tender that.

PN218

THE DEPUTY PRESIDENT: Well you have to ask the witness if he knows what it is and so on.

PN219

MR HANLEY: Are you familiar with this document Mr Wise?---I am familiar with it, yes.

PN220

THE DEPUTY PRESIDENT: What is it?---It’s a document that looks at the projected movement of prisons from existing prisons and the fill up of the new prisons and it was a one version of this document that appeared to have been prepared on 15 November 2005.

PN221

MR HANLEY: According to that document when was the Metropolitan Remand Centre was expected to be filled as at 1 July,?---By the end of June, yes.

PN222

Did the Metropolitan Remand Centre - - -

**** RODERICK JOHN WISE XXN MR HANLEY
PN223

THE DEPUTY PRESIDENT: Sorry, where’s that in the document?

PN224

MR HANLEY: Sorry your Honour if we look at the top columns you’ll see prison names and capacities in the first – on the third line below it’s got Metropolitan, MRC the abbreviation, is a maximum security prison with a capacity of 600 beds.

PN225

THE DEPUTY PRESIDENT: Right I see it.

PN226

MR HANLEY: So as far as operationally, MRC was able to fill as planned on 25 November?---Operationally the prison wasn’t ready to fill as planned on 25 November.

PN227

I’m sorry this document was prepared on 15 November?---Yes.

PN228

And it projected that the Metropolitan Remand Centre would be full as at 1 July 2006?---Yes.

PN229

You previously said that prisoners began coming into the prison in March and it filled over three months?---No, no I don’t think I said that Mr Hanley. I said that it was originally envisaged that we would commence operations in March and that there would be a gradual fill which would take three months. Now this bottom table indicates that we would start filling the MRC with permanent beds by the end of April you can see the plus 200 in that section by the end of April. By the end of June it says MRC plus 200 that should have filled the gaol. So as I said, three month fill period, 200 by the end of April, 200 by the end of May, 200 by the end of June, which should have had it full by 1 July.

PN230

Yes and that came in pretty well on target as I understand?---The prison didn’t open until 31 May.

PN231

THE DEPUTY PRESIDENT: So there were no prisoners – so by the end of April 2006 they didn’t have 200 prisoners there, is that right?---That’s correct it didn’t open until Marnganeet, the other new prison opened in March 2006. But the Metropolitan Remand Centre didn’t open until May.

PN232

Right was it plus 200 by the end of May ?---No, it opened very late in May so it took some time to fill.

**** RODERICK JOHN WISE XXN MR HANLEY
PN233

Okay, I understand thanks.

PN234

MR HANLEY: In fact we had a meeting on 23 May and at that meeting we were told that the Metropolitan Remand Centre would begin to take prisoners tomorrow, being 24 May and they were taking 60 prisoners in that first intake?
---No, I think that was further delayed, my recollection, I might be wrong was that it opened on 31 May.

PN235

The plan was that then there would be a build up to fill to capacity over the following nine weeks?---Yes.

PN236

Which will take it through till around the end of July?---Because of the delays we tried to fill it up more quickly than had originally been planned.

PN237

So essentially it was a month behind based on the original projections?---A month and a half.

PN238

The projections that were made in 15 November - - -?---Well the start date was originally anticipated to be March and then we didn’t open until the end of May so it was several months in the delay of opening and then we filled it up more quickly than we had originally anticipated.

PN239

So that given the capacity was delayed by a month many of the officers that were held back were held back for a longer period than that?---Some people were yes.

PN240

In November when you set down the plan about filling up the Metropolitan Remand Centre it was soon after that the documents were sent out to prison officers who had positions at the Metropolitan Remand Centre?---We sent them out some time after that, I can’t remember exactly when they were sent out.

EXHIBIT #C8 PROJECTIONS FOR OPENING OF THE MRC

PN241

MR HANLEY: Just going to the question of the formal letters that were sent to officers advising them that they would begin work or where there work location would be or their new work location or whatever you like to call it, there were letters sent to all the employees who currently worked at prison locations in Victoria, if we look at exhibit C1 the witness statement of Charlie
McLoughlin?---I don’t have that I’m sorry.

**** RODERICK JOHN WISE XXN MR HANLEY
PN242

Sorry, attached to that - - -

PN243

THE DEPUTY PRESIDENT: There is nothing attached to my C1.

PN244

MR HANLEY: The last page on C1 there’s a letter dated 13 December.

PN245

THE DEPUTY PRESIDENT: I’ve got a C1 in front of me I don’t have anything to attached to it.

PN246

MR HANLEY: Does it go to six pages your Honour?

PN247

THE DEPUTY PRESIDENT: No, exhibit C1 is two pages with no attachments. Exhibit C2 is the same, exhibit C3 is the same, exhibit C4 is one page – two pages, I think I have the attachments to C4.

PN248

MR HANLEY: So C4 is one page your Honour.
THE DEPUTY PRESIDENT: I’ll tell you what, I’ll adjourn I’ll give you the file and you can sort it out and then we can reconvene because I’m not going to sit here for 25 minutes trying to sort it out in open hearing, would that be all right?

PN249

MR HANLEY: Okay, yes, your Honour.

<SHORT ADJOURNMENT [11.12AM]
<RESUMED [11.27AM]

PN250

THE DEPUTY PRESIDENT: Right thanks for doing that, now where were we?

PN251

MR HANLEY: Your Honour that document was further on within the file.

PN252

THE DEPUTY PRESIDENT: Thank you for that.

PN253

MR HANLEY: Mr Wise, do you now have a copy?---I do now have a copy.

PN254

I take you to the attachment on C1 which is a letter dated 13 December and addressed to Charles McLoughlin, and Mr Wise that’s a letter that’s been signed by you?---It’s been signed on my behalf.

PN255

Signed on your behalf yes, and does that letter constitute formal advice to on behalf of Corrections Victoria to Mr McLoughlin?---Yes, it does.

**** RODERICK JOHN WISE XXN MR HANLEY
PN256

Just going back to commissioning a new prison.

PN257

THE DEPUTY PRESIDENT: Look this letter wasn’t in contention, so unless there’s something arising out of it we don’t need to discuss it further?

PN258

MR HANLEY: No, I’m finished with the letter your Honour.

PN259

Now just in relation to private motor vehicle usage, is there an approval method that is used by Corrections Victoria or the Department of Justice as the employer?---Not a single method that I’m aware of.

PN260

Could you describe what methods are available?---I would expect in most cases a brief memorandum or an email to the general manager of the prison would be acceptable.

PN261

In situations where people are required to be at a certain place and there’s no travel arrangements made, how are they to arrive at that location?---Well whenever someone is in those circumstances we endeavour to provide government transport. If that’s not feasible, then public transport might be provided and money might be provided to the staff member to attend using public transport or the staff member might request to use his or her private vehicle. That would either be approved or no approved.

PN262

Was any communication made with you prior to or on 20th in relation to expense arrangements with those who weren’t able to take up their duties as at their, as arranged in the formal notification?---Not on the 20th that I’m aware of, nor prior to that.

PN263

Was there any communication on the 23rd?---Not that I’m aware of. Subsequent to that I became aware of the issue.

PN264

Do you recall a conversation that we had, you and I on the telephone?---I can remember a conversation, but I wouldn’t have thought it was on the 23rd.

PN265

That was on the 20 June?---Was it, okay, I don’t dispute that.

PN266

On the issue of expenses or costs for the employees was raised in that conversation?

**** RODERICK JOHN WISE XXN MR HANLEY
PN267

MR HARDING: You’re entitled to present evidence Mr Hanley I would think.

PN268

THE DEPUTY PRESIDENT: Sorry I missed that?

PN269

MR HARDING: Mr Hanley is entitled to present evidence on that matter if he so desires.

PN270

THE DEPUTY PRESIDENT: Well he is entitled to ask relevant questions of this witness. He has to be given some latitude if that’s all right.

PN271

MR HARDING: Thank you.

PN272

MR HANLEY: No further questions your Honour.

PN273

THE DEPUTY PRESIDENT: Any re-examination?

PN274

MR HARDING: No, thank you your Honour.

PN275

THE DEPUTY PRESIDENT: Thank you for giving evidence you’re excused.

<THE WITNESS WITHDREW [11.31AM]

PN276

THE DEPUTY PRESIDENT: Thank you for that, does that complete the evidentiary case of each side? Better say yes for the purposes of transcript.

PN277

MR HARDING: Yes, your Honour.

PN278

MR HANLEY: Yes, your Honour.

PN279

THE DEPUTY PRESIDENT: Right now we are into submissions, so starting with the applicant, I have your submission in front of me Mr Hanley. All right shall we first mark the submissions.

EXHIBIT #C9 WRITTEN SUBMISSIONS OF THE CPSU

PN280

THE DEPUTY PRESIDENT: Mr Hanley, you’ve checked the witness statements and attachments and they are all in order are they?

PN281

MR HANLEY: Yes, your Honour some of the attachments had gone to the back, but it appears that it was only on the witness statement that we were looking at.

PN282

THE DEPUTY PRESIDENT: All right thank you very much for that advice.

EXHIBIT #J3 WRITTEN SUBMISSION OF THE DEPARTMENT OF JUSTICE

PN283

THE DEPUTY PRESIDENT: Mr Hanley, I think you have the floor, do you need five minutes to look at your notes, or are you right?

PN284

MR HANLEY: No, I’m right your Honour. I’ve only got a couple of points to cover and I guess the fundamental issue in this matter which goes to in my written submission is clause 60.

PN285

THE DEPUTY PRESIDENT: That’s where the entitlement arises is it?

PN286

MR HANLEY: That’s right your Honour.

PN287

THE DEPUTY PRESIDENT: It is an entitlement is it?

PN288

MR HANLEY: It is an entitlement.

PN289

THE DEPUTY PRESIDENT: It’s 60.2 is that right?

PN290

MR HANLEY: Clause 60 goes to temporary transfer between work locations and what cluse 60.1 establishes is usual place of work. The employer must determine a usual place of work for the employee. Now if we go to clause 12.2 of the enterprise agreement that also provides for the employer and employee duties employment relationship and related matters and sets down at clause 12.2 job information. I won’t go through the whole clause, but it essentially says, job title, job statement et cetera and then as well as that with the provision in clause 60.1 a statement as to determining the usual place of work for the employee.

PN291

THE DEPUTY PRESIDENT: Sorry where’s that in 12.2?

PN292

MR HANLEY: 12.2 if we look at 12.2.1, job information:

PN293

As soon as practicable after the commencement of employment the employee will be provided in writing or electronically with details of the job title, classification level and job statement of his or her position.

PN294

THE DEPUTY PRESIDENT: That doesn’t mention the usual place of work, does it?

PN295

MR HANLEY: No, it doesn’t it. The only other provision that goes with that job information comes about through clause 60, where it says at 60.1.1 that:

PN296

The employer must determine a usual place of work for the employee.

PN297

THE DEPUTY PRESIDENT: 60.1.1?

PN298

MR HANLEY: Yes, your Honour.

PN299

THE DEPUTY PRESIDENT: So and the employer did that in this case?

PN300

MR HANLEY: The employer did that in this case.

PN301

THE DEPUTY PRESIDENT: They are the letters of offer for the MRC?

PN302

MR HANLEY: Yes, and as the attachment to C1, the letter from Mr Rod Wise to Charles McLoughlin was setting down the usual work location.

PN303

THE DEPUTY PRESIDENT: So I’ve got that in front of me.

PN304

MR HANLEY: Letter dated 13 December 2005.

PN305

THE DEPUTY PRESIDENT: 19 September 2005? Dear Charles McLoughlin – it’s 19 September, isn’t it?

PN306

MR HANLEY: Does that read, thank you for your application in relation to an ongoing – there is another piece of correspondence.

PN307

THE DEPUTY PRESIDENT: Yes, I see you’re right, no, no you’re correct my mistake. So there’s two letters 13 December and then there’s 19 September 2005.

PN308

MR HANLEY: That’s right. Your Honour that sets down the usual work location as provided under clause 60.1.

PN309

THE DEPUTY PRESIDENT: I understand so with that letter they established the usual work location as from 23 January 2006.

PN310

MR HANLEY: As per 23 January 2006.

PN311

THE DEPUTY PRESIDENT: Okay now the letter of 19 September 2005?

PN312

MR HANLEY: The letter of 19 September that was the one that Mr McLoughlin responded to in accepting the original position and that’s set down in the attachment to that letter as schedule 1, which was a statement of employment. The date of commencement had left that open January 2006, February 2006 at that time it was too far off to be able to determine, to determine the specific date.

PN313

THE DEPUTY PRESIDENT: Then there’s the earlier letter advising that he’d been successful?

PN314

MR HANLEY: That’s correct your Honour.

PN315

THE DEPUTY PRESIDENT: The one you’re relying on is 13 December?

PN316

MR HANLEY: Yes, but the other information as provided under clause 12.2 had been provided in the letter of September.

PN317

THE DEPUTY PRESIDENT: I see.

PN318

MR HANLEY: So the provisions or the information required under clause 60.1.1 was provided in the letter of 13 December.

PN319

THE DEPUTY PRESIDENT: I take it those were form letters and were provided to all the seven or eight witnesses you have, were they?

PN320

MR HANLEY: That’s right, they were provided to all the people who were affected.

PN321

THE DEPUTY PRESIDENT: So there’s no difference it was a standard?

PN322

MR HANLEY: No, there’s some difference in who has signed some of the letters but they are still signed by a senior.

PN323

THE DEPUTY PRESIDENT: But the words are identical are they?

PN324

MR HANLEY: The wording is pretty much identical yes.

PN325

THE DEPUTY PRESIDENT: I presume it’s a form letter, wasn’t it Mr Harding?

PN326

MR HARDING: Largely a form letter, they differed in terms of dates and names, addresses, commencement dates.

PN327

THE DEPUTY PRESIDENT: Dates?

PN328

MR HARDING: The commencement dates at the various locations differed.

PN329

THE DEPUTY PRESIDENT: That’s fine.

PN330

MR HARDING: Yes, because you understand it was a staggered start.

PN331

THE DEPUTY PRESIDENT: Yes, thank you. Sorry for interrupting Mr Hanley. Okay so we look to each of those three letters do we? Those are the three letters in virtually identical form?

PN332

MR HANLEY: That’s right your Honour.

PN333

THE DEPUTY PRESIDENT: This claim relates to the eight witnesses, or seven witnesses that you’ve provided is that right?

PN334

MR HANLEY: The claim relates to a group of employees there’s around about 25 in total, we didn’t provide witness statements from all of them and in earlier discussions with Mr Harding he suggested one or two would be sufficient. There were eight who provided statements so I presented all eight.

PN335

THE DEPUTY PRESIDENT: No, thank you. So you want me to determine that essentially pursuant – just let me ask this question. That pursuant to clause 60.2, employees made an offer and advised of a usual place of work in the form of a letter dated 13 December 2005 are entitled to excess travelling time in clause 60.2. That is the form of determination that you see, is it?

PN336

MR HANLEY: That’s correct yes.

PN337

THE DEPUTY PRESIDENT: What does that arithmetically add up to?

PN338

MR HARDING: It is different for each employee.

PN339

MR HANLEY: We’re prepared to accept the methodology that was put forward by Mr Wise in his witness statement.

PN340

THE DEPUTY PRESIDENT: Right, okay.

PN341

MR HANLEY: The where is it calculation, it is not 100 per cent, but I think that it reasonably determines the additional travel time for the employees.

PN342

THE DEPUTY PRESIDENT: Marvellous we just then add a clause to be calculated in accordance with that methodology in Mr Wise witness statement?

PN343

MR HANLEY: Yes, thank you. In relation to and I guess hinging on a determination on clause 60.2 excess travel time, that that additional travel time be regarded as time worked I guess answers a lot of questions. Well it answers the question in relation to dealing with the additional time. But it also deals with the question in relation to private vehicle travel that be work related because if it’s deemed to be time worked then that also would – it would also then be work related as provided for in clause 31 of the enterprise agreement.

PN344

THE DEPUTY PRESIDENT: Okay, so you are seeking to determination pursuant to clause 31.4 simultaneously and in addition, is that right?

PN345

MR HANLEY: That is correct.

PN346

THE DEPUTY PRESIDENT: So you also want me to make the same form of determination to the effect that the travel time for that group of employees between home and work, to and from is in the course of his or her employment within clause 31.4.1.

PN347

MR HANLEY: That’s correct.

PN348

THE DEPUTY PRESIDENT: And that the employer must reimburse those employees in accordance with that clause.

PN349

MR HANLEY: In accordance with that clause and that’s for additional travel time, only in accordance with clause 60.2 which provides only for the additional travel time.

PN350

THE DEPUTY PRESIDENT: So what do we do about Mr McLoughlin who had no additional travel time?

PN351

MR HANLEY: Mr McLoughlin did have additional travel time, your Honour.

PN352

THE DEPUTY PRESIDENT: Correct me if I’m wrong, didn’t he give evidence that he drove 52 kilometres from home to Barwon for the transfer to MRC and after because he continued to work at Barwon, so what’s the additional travel time?

PN353

MR HANLEY: Mr McLoughlin is a resident at Melton. Truganina or Metropolitan Remand Centre is at Truganina.

PN354

THE DEPUTY PRESIDENT: I see, so what we do is we look at the travel time between Melton and Truganina to the extent that that’s in excess – less than the travel time between Melton and Barwon and that’s the – how you calculate it is it?

PN355

MR HANLEY: That’s correct your Honour. As I understand from
Mr McLoughlin I think that was around 50 minutes per day.

PN356

THE DEPUTY PRESIDENT: Which was?

PN357

MR HANLEY: To and back the additional travel time is 50 minutes for each trip to and return.

PN358

THE DEPUTY PRESIDENT: Just let me get this straight in my mind, if this is correct. So the travel from Melton to Barwon is 50 minutes in excess of the travel time from Melton to the MRC?

PN359

MR HANLEY: That’s correct your Honour, that’s in both directions returning.

PN360

THE DEPUTY PRESIDENT: In both directions?

PN361

MR HANLEY: Yes.

PN362

THE DEPUTY PRESIDENT: So it’s to and from is 50 minutes a day, 25 minutes each travel?

PN363

MR HANLEY: That’s correct your Honour.

PN364

THE DEPUTY PRESIDENT: And a similar calculation exists for each of the other group.

PN365

MR HANLEY: That’s correct your Honour and if we look at Mr Wise’s statement and at the back of Mr Wise statement there’s an attachment. An internet site with step by step directions in that.

PN366

THE DEPUTY PRESIDENT: Yes.

PN367

MR HANLEY: That’s set down and we are happy to accept that for a methodology for determining the differences.

PN368

THE DEPUTY PRESIDENT: I see.

PN369

MR HANLEY: One of the witnesses home location was Bootlin Crescent, Corner Greensborough - - -

PN370

THE DEPUTY PRESIDENT: We don’t need to go into that, we leave that to you to work out.

PN371

MR HANLEY: That worked out as - - -

PN372

THE DEPUTY PRESIDENT: The fundamental question is this Mr Hanley, did they at any time change the usual place of work?

PN373

MR HANLEY: Yes.

PN374

THE DEPUTY PRESIDENT: So on 13 September or whatever the date was, they advised that the usual place of work was MRC okay?

PN375

MR HANLEY: That’s correct.

PN376

THE DEPUTY PRESIDENT: I’m sorry December 2005, they advised that.

PN377

MR HANLEY: That’s correct.

PN378

THE DEPUTY PRESIDENT: Subsequently they advised the start date at MRC would be delayed. Did those letters constitute a change to the usual place of work in your view?

PN379

MR HANLEY: Your Honour we heard evidence from Mr McLoughlin as to how he was advised. He was advised orally by telephone from the staff office at Barwon prison and I guess the question for us goes to the question of status. There is provision to have temporary transfer between work locations and we deem that that instruction deemed was to be a temporary transfer. The usual work location would continue from that time 23 January to be the Metropolitan Remand Centre and the oral instruction and the email advice that was sent out generally, would constitute a change to – would constitute a temporary transfer.

PN380

THE DEPUTY PRESIDENT: Where’s that email?

PN381

MR HANLEY: If we go to clause 60 - - -

PN382

THE DEPUTY PRESIDENT: Sorry, just show me this email.

PN383

MR HANLEY: The email is also an attachment to Mr Wise statement.

PN384

THE DEPUTY PRESIDENT: To Mr Wise, okay, let’s just look at it can we?

PN385

MR HANLEY: And I think it’s at attachment 1.

PN386

THE DEPUTY PRESIDENT: Attachment 1 is it, so this is the email which delayed the transfer or whatever it did?

PN387

MR HANLEY: That’s correct.

PN388

THE DEPUTY PRESIDENT: So that email group are the group of people affected are they, or your claim?

PN389

MR HANLEY: The email according to Mr Wise statement was sent to the general managers, they are the people that are at the top of the page. It is dated 3 February and that was following discussions that we’d had in relation to the change or to the temporary relocation. In just setting down some parameters because people at already attended send offs and had actually had their rostering arrangements changed in anticipation that they wouldn’t be back on the following Monday.

PN390

THE DEPUTY PRESIDENT: Just let me get this straight. So this is the only written advice to each of this group of employees following the December 2005 letter which you say set the usual work location, is that right?

PN391

MR HANLEY: That’s correct and this email was forwarded on as I understand it and from Mr Wise evidence it was sent in the blind copy format to each of the people who received the formal letter.

PN392

THE DEPUTY PRESIDENT: This letter doesn’t change the usual work location back to Barwon?

PN393

MR HANLEY: No it doesn’t change the usual work location.

PN394

THE DEPUTY PRESIDENT: Why doesn’t it do that?

PN395

MR HANLEY: Because it refers to the proposed transfer. The formal letter, if we go through the formal letter.

PN396

THE DEPUTY PRESIDENT: Which formal letter, the email or the?

PN397

MR HANLEY: 13 December, they were signed and they were posted out and they were posted out on letterhead.

PN398

THE DEPUTY PRESIDENT: Yes.

PN399

MR HANLEY: Signed by senior people within the department and it established the work location and it also established the commencement date, in this case being 23 January. Subsequent to 23 January – well on 20 January Mr McLoughlin simply received a telephone call advising that that wasn’t to happen. We interpret that as being a temporary transfer between work location which brings about the excess travel time claim and subsequent to that Mr Wise sent advice to the general managers at each prison location that was affected. As I understand that email advice was forwarded on to groups.

PN400

THE DEPUTY PRESIDENT: Did each of the other employees get the same phone call, or a different one?

PN401

MR HANLEY: I can’t comment on that your Honour as far as I’m aware.

PN402

THE DEPUTY PRESIDENT: So we have to rely on the email essentially?

PN403

MR HANLEY: It was a telephone call – if they were – depended on their start time. Some of them had a later start date at the remand centre, so therefore received the advice via email, but those that were due to start on the Monday were contacted by telephone. The and I guess in the context - - -

PN404

THE DEPUTY PRESIDENT: Okay, let’s read this email okay, this is the written advice. It says first of all, proposed transfer is deferred. All right is there anything else you want to say about the wording or not? You don’t have to I’m just asking.

PN405

MR HANLEY: I guess in the context of this email, it does say transfer and Mr McLoughlin as an example is a senior prison officer at Barwon prison and also a senior prison officer at the Metropolitan Remand Centre. So in that context he is transferring from one location to the other.

PN406

THE DEPUTY PRESIDENT: All right, thanks.

PN407

MR HANLEY: His work location had been determined in the formal letter and it was saying that the transfer had been deferred. Whether that changes the date on the formal letter is one of the questions that we are seeking you to determine.

PN408

THE DEPUTY PRESIDENT: Was there any prior approval within clause 31.4.2?

PN409

MR HANLEY: As far as the motor vehicle use, no there was no – well if we can determine what the prior approval arrangements are and I was a public servant myself for a number of years and worked for the Rural Water Commission and the approval I don’t think I ever had prior approval, is was about whether the travel constituted – was work related or in the course of employment and subsequently putting in the claim form.

PN410

THE DEPUTY PRESIDENT: Well look just let me get this straight. If you’re making a claim under 31.4 that’s fine, but the requirements of 31.4 have to be met. Now it’s in 31.4.2 the employee must obtain the prior approval, okay? Then the employee must submit a declaration stating the date. Has that been done in each of the cases or not?

PN411

MR HANLEY: I guess your Honour - - -

PN412

THE DEPUTY PRESIDENT: It hasn’t has it?

PN413

MR HANLEY: No, it hasn’t in the case of submitting the declarations, yes the declarations have been submitted.

PN414

THE DEPUTY PRESIDENT: They have, so it’s the prior approval, that has to be.

PN415

MR HANLEY: It’s the prior approval that’s the issue and that’s the vexed question of what constitutes approval, simply because of the fact that they were then rostered.

PN416

THE DEPUTY PRESIDENT: What do you say is the prior approval?

PN417

MR HANLEY: We say that based on the circumstances the rostering of those employees to work is what we deem to be - - -

PN418

THE DEPUTY PRESIDENT: So the phone call and the email constitute prior approval?

PN419

MR HANLEY: And rostering of the employees.

PN420

THE DEPUTY PRESIDENT: And rostering?

PN421

MR HANLEY: Yes.

PN422

THE DEPUTY PRESIDENT: What’s the evidence about rostering? You get sent a roster at some stage.

PN423

MR HANLEY: I beg your pardon your Honour. If we go to Mr Wise statement.

PN424

THE DEPUTY PRESIDENT: Okay I have it.

PN425

MR HANLEY: If we go to paragraph 18 it says:

PN426

Staff remained at their original location experience some benefit over the staff at the new but yet not functioning location, as they were working on a fully operational seven day rotating shift roster with shift weekend and overtime penalties available.

PN427

THE DEPUTY PRESIDENT: Okay, so that’s the prior approval you say?

PN428

MR HANLEY: That’s the prior approval the fact that they were rostered.

PN429

THE DEPUTY PRESIDENT: Okay.

PN430

MR HANLEY: I guess the only other point I’d like to cover your Honour is in relation to time worked. Prison officers work an 80 hour fortnight and any time in excess of 80 hours, can either be taken as time in lieu or paid as overtime. The changes to time in lieu arrangements are that there is it’s not hour for hour as provided under the enterprise agreement time and a half for each hour.

PN431

THE DEPUTY PRESIDENT: Time and a half.

PN432

MR HANLEY: For each hour, yes.

PN433

THE DEPUTY PRESIDENT: So an overtime hour is an hour and a half of work, is it?

PN434

MR HANLEY: Yes, your Honour and what we submit is that we are happy to accept either time in lieu for the excess travel time as the old arrangement or the payment whichever - - -

PN435

THE DEPUTY PRESIDENT: The time in lieu provisions in the agreement are where?

PN436

MR HANLEY: Time in lieu that comes under - - -

PN437

THE DEPUTY PRESIDENT: You are probably better able to find it Mr Hanley.

PN438

MR HANLEY: Beg your pardon your Honour.

PN439

THE DEPUTY PRESIDENT: You are probably better able to find it than me.

PN440

MR HANLEY: Yes. Clause 35.

PN441

THE DEPUTY PRESIDENT: That’s fine thank you.

PN442

MR HANLEY: The overtime rates of payment are at clause 35.6 and that’s all your Honour.

PN443

THE DEPUTY PRESIDENT: Thank you very much Mr Hanley. Mr Harding?

PN444

MR HARDING: Thank you, your Honour. I would like to first off tender - you will note by email of 31 October I revised the last paragraph of my submission.

PN445

THE DEPUTY PRESIDENT: Okay.

PN446

MR HARDING: For the convenience of the Commission I’m prepared to hand a full revised copy that is the substantive change.

PN447

THE DEPUTY PRESIDENT: Why don’t I just use it and work off that then and call that the - - -

PN448

MR HARDING: Paragraph 22, a word was deleted from the initial paragraph and I sought to include it.

PN449

THE DEPUTY PRESIDENT: Right let’s go through it.

PN450

MR HARDING: The amended outline of submissions.

PN451

THE DEPUTY PRESIDENT: Is the usual place of work Barwon or the MRC?

PN452

MR HARDING: We say that the usual place of work as varied by the phone conversations and the email are of the - - -

PN453

THE DEPUTY PRESIDENT: Did they expressly vary it.

PN454

MR HARDING: We say it was expressly varied.

PN455

THE DEPUTY PRESIDENT: Where’s the evidence of that?

PN456

MR HARDING: The email of I think 2nd or 3 February provided by the Director of Prison to each and everyone of the officers.

PN457

THE DEPUTY PRESIDENT: This is the email attached to Mr Wise’s statement?

PN458

MR HARDING: That’s right we say that the Department was permitted to.

PN459

THE DEPUTY PRESIDENT: This is the email dated 2 March 2006?

PN460

MR HARDING: Yes.

PN461

THE DEPUTY PRESIDENT: Right, where in that email does it vary the usual place of work?

PN462

MR HARDING: What it says in the very first sentence is the variation clause and what it actually says is that your proposed transfer has been deferred. We say that the employer is at liberty to do with appropriate compensation and adjustment and recognition and what have you. But we say that the location of employment remained at Barwon and at MAP as per the original employment arrangements. We’ve heard statements from Mr - - -

PN463

THE DEPUTY PRESIDENT: Okay, there’s no express power to vary the usual place of work, is that implicit in the sensibly operating and agreed - - -

PN464

MR HARDING: That’s right operational requirements. It comes out of the secretary’s power under the public administration act to allocate staff.

PN465

THE DEPUTY PRESIDENT: Well if you are going to start relying on the Public Service Act, you better tender it and show me the provisions and put a decent legal argument. I’m not going to have regard to that unless you do all that.

PN466

MR HARDING: I have no – thank you I note your comment.

PN467

THE DEPUTY PRESIDENT: So you are just saying it’s implicit in the – in clause 60 that the determination and the usual place of work in 60.1.1 maybe deferred in the way you’ve done it is that right?

PN468

MR HARDING: We do.

PN469

THE DEPUTY PRESIDENT: Okay and you say that email amounts to that?

PN470

MR HARDING: And the telephone conversation.

PN471

THE DEPUTY PRESIDENT: And the telephone conversation, so there’s no liability you say under 60. What about clause?

PN472

MR HARDING: 31.4?

PN473

THE DEPUTY PRESIDENT: Yes.

PN474

MR HARDING: We say that that doesn’t come into the calculation. We say first off there isn’t an entitlement under clause 60 and that certainly under 31.4 a claim does not automatically arise under 31.4 by deed of operation of clause 60. Secondly, in the adverse on that particular point we say that clause 31.4 is most specific in that it requires approval.

PN475

THE DEPUTY PRESIDENT: 31.4, not 30.4.

PN476

MR HARDING: 31.4, that’s correct. We say the specific requirement is that approval be given. In fact Mr Wise did during his evidence indicate that the appropriate process for that would be a letter, an email from the relevant general manager of the prison agreeing to such a claim in advance.

PN477

THE DEPUTY PRESIDENT: I’m not sure that he quite put it that way, he said that would be an appropriate circumstance he didn’t say that’s the only way of doing it.

PN478

MR HARDING: No, that’s right.

PN479

THE DEPUTY PRESIDENT: Well is that it? do you need to say anything else?

PN480

MR HARDING: Secondly, we’ve heard evidence from Mr Eyre-Walker from Industrial Relations Victoria as to custom and practice the negotiating process of agreements and what his understanding of the operation of the provisions is and have heard no further evidence in terms of advice on that particular question. I just want to clarify that that letter of 3 – sorry the email of the 3rd was actually sent to the staff specifically, it wasn’t just sent to the general managers, it did go to all the staff. I have a complete list of the staff and you will see from the attachment to Mr Wise’s evidence that there was an email in which the block names of all the participants was actually deleted. I’m prepared to show the Commission but for the sake of the officers concerned.

PN481

THE DEPUTY PRESIDENT: Well look I don’t think it’s in contention that that email in the form attached to Mr Wise’s statement is said to be each of the individuals of the group, so I understood Mr Hanley’s submissions.

PN482

MR HARDING: Thank you. On the last particular question and that’s the, that is very much in the averse argument on the question of the calculation of time in lieu. The evidence from Mr Eyre-Walker was that it would be calculated at single time, also I understand.

PN483

THE DEPUTY PRESIDENT: Not time and a half.

PN484

MR HARDING: Not time and a half.

PN485

THE DEPUTY PRESIDENT: Doesn’t the overtime talk about time and a half?

PN486

MR HARDING: It does in respect of authorized overtime, but the provision relating to excess travelling time, is dealt with in a separate section of the agreement. Were it to be treated as overtime, it would be within the overtime clause of the agreement.

PN487

THE DEPUTY PRESIDENT: All right so the overtime clause is - - -

PN488

MR HARDING: Our understanding is that it doesn’t. I think at that particular point I would let the matter rest from my perspective.

PN489

THE DEPUTY PRESIDENT: Thank you very much. Mr Hanley, do you want to respond briefly to any of that? You don’t have to.

PN490

MR HANLEY: Simply one point your Honour and just going to
Mr Eyre-Walker’s evidence and the time, and it does – the clause 60.2.1 simply says time worked. Whether that time worked is then dealt with through other parts of the enterprise agreement if it is in excess of 80 ordinary hours and my submission would be that it should be dealt with in accordance with the rest of the enterprise agreement.

PN491

THE DEPUTY PRESIDENT: Thank you very much. Right thank you for those submissions and evidence, I need to reserve my decision. I will publish it as soon as possible, before Christmas I expect. This matter stands adjourned.

<ADJOURNED ACCORDINGLY [12.02PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

DAVID NORMAN EYRE-WALKER, SWORN PN24
EXAMINATION-IN-CHIEF BY MR HARDING PN24
EXHIBIT #J1 WITNESS STATEMENT OF DAVID NORMAN EYRE-WALKER PN34
CROSS-EXAMINATION BY MR HANLEY PN48
THE WITNESS WITHDREW PN87
CHARLES VINCENT MCLOUGHLIN, SWORN PN89
EXAMINATION-IN-CHIEF BY MR HANLEY PN89
EXHIBIT #C1 WITNESS STATEMENT OF CHARLES VINCENT MCLOUGHLIN PN92
CROSS-EXAMINATION BY MR HARDING PN134
RE-EXAMINATION BY MR HANLEY PN157
THE WITNESS WITHDREW PN164
EXHIBIT #C2 WITNESS STATEMENT FOR CHARLES BALAZS PN169
EXHIBIT #C3 WITNESS STATEMENT FOR BRETT BURQUEST PN169
EXHIBIT #C4 WITNESS STATEMENT OF MALCOLM CHARLES FRAME PN169
EXHIBIT #C5 WITNESS STATEMENT OF MICHAEL G HAYES PN169
EXHIBIT #C6 WITNESS STATEMENT PETER KENNEDY PN169
EXHIBIT #C7 WITNESS STATEMENT OF CHARLES GOODIN PN172
RODERICK JOHN WISE, SWORN PN177
EXAMINATION-IN-CHIEF BY MR HARDING PN177
EXHIBIT #J2 WITNESS STATEMENT OF RODERICK JOHN WISE PN187
CROSS-EXAMINATION BY MR HANLEY PN188
EXHIBIT #C8 PROJECTIONS FOR OPENING OF THE MRC PN240
THE WITNESS WITHDREW PN275
EXHIBIT #C9 WRITTEN SUBMISSIONS OF THE CPSU PN279
EXHIBIT #J3 WRITTEN SUBMISSION OF THE DEPARTMENT OF JUSTICE PN282