C2007/2689, Transcript of Proceedings [2007] AIRCTrans 335 (12 July 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17081-1

VICE PRESIDENT WATSON

C2007/2689

s.170LW - prereform Act - Appl’n for settlement of dispute (certified agreement)
National Tertiary Education Industry Union
and
Kangan Batman Institute of TAFE
(C2007/2689)

MELBOURNE

FRIDAY, 29 JUNE 2007

Continued from 15/6/2007

Reserved for Decision

PN2196

THE VICE PRESIDENT: Ms Gale.

PN2197

MS L GALE: Your Honour, I have provided to your associate and to the Institute yesterday a short list of authorities.

PN2198

THE VICE PRESIDENT: Thank you.

PN2199

MS GALE: Your Honour, the issue to be determined in this is case is straightforward. It's a dispute about the proper application of clause 22 of the Kangan Batman Agreement in the circumstances of the restructure of the information services department.

PN2200

The evidence shows that a restructure of the Institute's IT department occurred. Mr Langarish has told us that he was asked to think about restructuring the department from the time of his appointment in September of last year and that he went through a process of designing a new structure, discussing the model with other members of the Institute's management team. Those discussions resulted in some minor revisions to his model and he got management approval for that model late in 2006.

PN2201

We know that during this period the restructure proposal was under wraps as far as staff and the union were concerned. It was announced to the union and simultaneously a document tabled at a meeting held on the afternoon of 21 December which was the Thursday of the Institute's last working week for 2006. Immediately after that meeting with the union an all staff meeting was held, at least all the staff who were not already on leave and the restructure was announced to those staff who were present. The document was also tabled at the all staff meeting.

PN2202

The evidence of Mr Johansen and Mr Ozturk is that this announcement came as a complete surprise and that its timing was unfortunate, leaving staff to go on their Christmas holidays uncertain about the future. It's arguable that the Institute, under clause 10 of the agreement ought to have begun consulting staff and the union earlier, at the stage when the proposal was in development. That's also arguable under clause 22.

PN2203

The restructure reorganised the department into three large teams, one team focused on infrastructure, one focused on applications and one providing professional and administrative services to both the other teams. Above all three teams sits Mr Langarish as the manager of the department.

PN2204

The restructure moved about, renamed and redesigned jobs. New position descriptions were developed for all positions below that of the manager. The evidence of Mr Langarish was that he developed the new position descriptions with the aid of a position description generator table from Flinders University.
Mr Langarish also told us that he was "not familiar with the legal requirements of PDs" and that's at paragraph 1317 of the transcript.

PN2205

Once the restructure was announced, two separate processes were undertaken. The first was that the points factor evaluation of the proposed new position descriptions was undertaken by a panel consisting of union and management nominees. This was a standing panel that met to deal with classifications and reclassifications at Kangan and so its composition was fairly quickly established. Mr Johansen was the union nominee on that panel.

PN2206

The PFES panel worked throughout early January to classify the new position descriptions. That was its job and its only job. We've heard from Mr Johansen that the PFES panel's first assessment of the new position descriptions was that a larger number of them described high classification level positions. The panel was then instructed to advise on changes to the position descriptions in order to bring a number of them down to a lower classification level. The panel did so and whatever reservations Mr Johansen may have had about the extent to which those changes would be reflected in practice, the panel agreed on the PFES classification of the proposed new position descriptions.

PN2207

It's important to understand that the panel's only power and role in the process was to assess the classification level of position descriptions. It was not a consultative forum, it did not consider the appropriateness of the proposed structure, it did not and was not asked to assess whether the new PDs constituted significantly different positions from the old PDs in the same organisational unit. Mr Johansen has told us that he keeps his hats very separate and that when sitting on the PFES panel he is careful to confine his considerations to the proper classification of the documents before the committee. The work of the PFES panel was completed by the middle of January.

PN2208

The second process was one of consultation with staff and the union.
Mr Langarish has said that some staff spoke to him directly about the proposal. He did not tell us how many, from what classification levels or what the substance of those discussions was. Consultation with the union occurred through the consultative committee in accordance with the agreement and Mr Langarish did not participate in that process.

PN2209

We know that there were five meetings held of the union-management consultative committee, established under clause 10 of the agreement. Those meetings were on 29 January, 5 February, 8 February, 22 February and 5 March and that's to be found in Mr Ozturk's witness statement G5 at paragraphs 5 and 6.

PN2210

The Commission has heard evidence that the union representatives on the consultative committee had a clear impression that management were consulting about the implementation of the new structure which they had decided upon and not about the development of a proposed structure. That's to be found, for example, again at G5, paragraph 7. Clearly, the discussions at the meetings in fact focused on implementation issues.

PN2211

The minutes of 8 February, which are attachment 1 to Mr Johansen's statement, that's exhibit G3, record agreement on some questions of implementation. It was agreed, for example, that a cascading approach would be taken to fill in positions in the new structure. At paragraph 4(a) of those minutes, it reads:

PN2212

It was further agreed that there would be a staged approach so that once the higher level positions are filled we would then proceed by having a further discussion as to how to proceed with filling the level CSO5, 4, and 3 positions and the AO5 position.

PN2213

That is, it was agreed that the CSO6 positions would be dealt with first and then the parties would come back together to discuss how to proceed with implementing the restructure for the lower position classification levels, including CSO5.

PN2214

It's common ground that, despite its location in a new organisational chart, and despite having a new position description, one position at CSO6 was agreed upfront by all parties to have been substantially unchanged. The agreement on this point is found in the minutes of the consultative committee meeting of
8 February and that is at paragraph 4(c) that the position of program office coordinator be exempt from the redeployment process and that James Hogan should retain this position in view of the fact that the position has not changed significantly and he was successful for the position via a recruitment process late last year. That agreement is reflected in the minutes, that position was dealt with by exempting the incumbent from the redeployment process.

PN2215

The evidence also shows that a second position was later amended and that on the request of the relevant staff member, was also treated similarly to that of Mr Hogan, that is, treated as a change to the old position such that no redundancy occurred and the employee was moved directly into the position in the new structure.

PN2216

On 13 February seven employees, including Mr Ozturk, were told that their positions were redundant and were invited to make expressions of interest - I'm sorry, I should correct that. I think I said that Mr Hogan's position was at CSO6, it was at CSO5. On 13 February seven employees, including Mr Ozturk, were told that their positions were redundant and were invited to make expressions of interest for some of the positions in the new structure. A copy of the letter to Mr Ozturk is attachment 3 to Mr Ozturk's witness statement, G4.

PN2217

The union contends that by sending that letter, the employer failed to properly apply clause 22 of the agreement. We say that a proper application of clause 22 requires first, that a genuine determination be made that one or more positions are no longer required in order for the Institute to achieve its goals. That is set out at clause 22.1. The whole of the redeployment process under clause 22 begins with the requirement that, where it is determined that some positions are no longer required in order for the Institute to achieve its goals, redeployment is an option which should be considered. We agree that that is a determination that rests with the employer, however, it is a determination which cannot be frivolously made but must be a view genuinely held.

PN2218

The second requirement in a proper application of clause 22 is that if and when such a determination is made, redeployment should be considered as an option. That again is in the words of clause 22.1. It's reinforced by the words of
clause 22.9 which states that when a management decision results in a position becoming surplus to requirements, the Institute will consider redeployment options. Redeployment does not automatically flow from a determination being made, it is one option to consider, not a necessary consequence.

PN2219

In fact, redeployment is narrowly defined by clause 22.2. For the purposes of this clause, for the purposes of the redeployment process set out in clause 22, redeployment is defined as the relocation of an employee to another position which is not incidental or peripheral to the employee's current position. That is the first dot point under clause 22.2. Incidental to is relevantly defined as liable to happen in connection with or naturally appertaining to by the Macquarie dictionary or naturally attaching to by the Oxford. Peripheral is relevantly defined as relating to, situated in or constituting the periphery. That's the Macquarie, or of, pertaining to or situated in or on the periphery, constituting or characteristic of the circumference or external surface, from the Oxford.

PN2220

The concept of a position which is incidental or peripheral to the employee's current position is therefore, we say, fairly broad. It includes positions which consist of duties which naturally attach to or naturally appertain to the existing position, that is duties which are incidental to the original position. But it goes beyond that to include even positions which consist of duties which are at the edges of the old position or peripheral to it. Taken together as a phrase, we say that incidental or peripheral to clearly goes beyond minor differences, to ensure that even quite significant changes to a position, such that the new position is on the edges or periphery of the old position, do not give rise to redeployment under this agreement. We say that those sorts of changes should be dealt with through a simple transfer, not redeployment.

PN2221

THE VICE PRESIDENT: Just in terms of the operation of the clause, and you've drawn attention to what you've described as the narrow definition of redeployment, do you say that that's relevant to both of the requirements in clause 22.1 if they are in fact requirements, that they might be alternatively described as a condition and then an option, rather than two requirements, where there's two steps of one sort or another, as you've identified them? Is the narrow definition relevant to both of those or simply the second one?

PN2222

MS GALE: It's clearly relevant to the second because it is in fact a direct definition of the term used in the second. The clause as a whole is headed Redeployment and the condition or the step in 22.1 which relates to determining that a position is no longer required is also repeated at 22.9. In both cases it's described as something which may lead to redeployment. We would say that the logical alternative to redeployment is continued employment in an amended position. Therefore, logically, that reflects upon the question of whether the position does in fact continue to be required or whether it - I'm sorry, whether it is no longer required or whether it is required in an amended form. We say that this definition is such that where a position is required in an amended form which leaves it within the range of positions which are the same as or incidental or peripheral to or substantially similar to the existing position, then logically, there should not be a determination that the position is no longer required.

PN2223

THE VICE PRESIDENT: The terminology, though, in 22.1 is different to the terminology in 22.9, is it not?

PN2224

MS GALE: It is.

PN2225

THE VICE PRESIDENT: No longer required is 22.1 and - - -

PN2226

MS GALE: And 22.9 refers to surplus to requirements.

PN2227

THE VICE PRESIDENT: Surplus to requirements.

PN2228

MS GALE: Yes.

PN2229

THE VICE PRESIDENT: You're suggesting that they're equivalent phrases.

PN2230

MS GALE: Yes.

PN2231

THE VICE PRESIDENT: You seem to be suggesting that the notion in the definition of redeployment has a relevance to the first part of clause 22.1.

PN2232

MS GALE: Yes. The employer's outline of submission contends at paragraph 5 that the purpose of clauses 22.1 and 22.2 is to preclude redeployment where an employee's role is changed in only incidental or peripheral ways and we say that indeed, the effect of 22.1 and 22.2 would preclude redeployment where an employee's role is changed in only incidental or peripheral ways, but that is not the full effect of those clauses.

PN2233

What the employer has done there is to turn the commonsense meaning of the words on their head. To achieve the meaning that the employer is contending, the clause would need to say at 22.2, relocation of an employee to another position which is more than incidentally or peripherally different from the employee's current position. It doesn't say that. The requirement is that the new position not be incidental or peripheral to the employee's current position. To be incidental it must be different in a way that naturally attaches to or appertains to the earlier position. To be peripheral it must be at the edges of the old position. These concepts do not imply the minimalist scope for change that the employer seeks to construe from the words.

PN2234

The agreement does not allow for redeployment to be used if a position has only changed in ways that do not take it beyond the scope of incidental or peripheral. If a position or a job remains unchanged, substantially unchanged, or not changed to the extent that would take it beyond the scope of incidental or peripheral positions, then Kangan Batman Institute has agreed in this agreement that it will not use redeployment in those circumstances.

PN2235

The implications that we contend for this definition at clause 22.2 are entirely consistent with what witnesses have said about past practice at Kangan, that prior to moving to place people in the redeployment pool, in the past Kangan has compared existing positions with new positions and simply moved people across into the new structure where positions have matched, though matching might be a term of art apparently. The practice was clearly explained by both Mr Johansen and Mr Ozturk.

PN2236

The union submits that a proper application of clause 22 requires that a genuine consideration be given to whether a position or positions in the new structure are the same as or incidental to or peripheral to the existing positions prior to offering any employee redeployment. We say that this genuine consideration did not occur.

PN2237

What would such an examination have shown? The union submits that there were at least three positions within the new structure to which Mr Ozturk could have been moved without requiring redeployment since each of them was significantly similar to or at least peripheral or incidental to his existing position in the old structure and these were at CSO6, a business services manager position, at CSO5, the project manager infrastructure and the project manager applications positions. Each of these three positions had a substantial overlap of duties and skill level with the position of senior project coordinator, which was Mr Ozturk's position prior to the restructure. The two CSO5 positions were so similar to his old job as to be effectively the same positions as those held by himself and the second senior project coordinator prior to the restructure.

PN2238

The CSO6 position, which incorporated some of the business analysis duties from his old position, was at a higher classification level and incorporated some other duties which did not fall within Mr Ozturk's old position but we say it was at least incidental or peripheral to his old position. If clause 22 had been properly applied, this comparison of positions should have been done. Mr Ozturk should have been moved into one of these three positions in much the same way as happened with Mr Hogan and no decision that Mr Ozturk's position was surplus to requirements should probably have been made by the Institute.

PN2239

THE VICE PRESIDENT: You obviously don't see any conceptual difficulty with one position being the same as three others or incidental or peripheral?

PN2240

MS GALE: We say that there were two project manager positions before the restructure and there are two after, that each of the two project manager positions after the restructure are substantially similar to Mr Ozturk's position before the restructure, if not identical. The business analyst position, we concede is different. It is not identical. The extent of the difference, we have some disagreement with the Institute about and that's reflected in the evidence, however, we say that it is sufficiently similar that it falls within the scope of what's caught by the concept of incidental and peripheral.

PN2241

We also say that even if a decision to declare the existing position surplus had been properly made, or a decision to declare the existing position to be no longer required had been properly made, Kangan should still have examined the possibility of direct transfer to a new position that was the same, substantially similar, incidental or peripheral to the existing position, in which case the redeployment process for Mr Ozturk would have ceased prior to redeployment in that he would have been placed directly into one of those positions.

PN2242

Unfortunately, what did happen is that an erroneous decision was made. Putting the most charitable construction on it, the relevant manager, Mr Langarish, was ignorant of the legal requirements of PDs and not involved in the consultation process with the union. He himself undertook no examination of which of the new positions were incidental or peripheral to the old positions in terms of the definition in the agreement. The HR director of the Institute, Mr Mackay, who was directly involved in consultation with the union, decided to simply rely on the manager's opinion without undertaking any checking of his own but whether through neglect or design we say Kangan failed to do what it ought to have done under the agreement. The transcript relating to Mr Mackay's failure to do any checking of his own, is found at paragraphs 2129 to 2142.

PN2243

Having been advised that his position was redundant and that he was then in the redeployment process, Mr Ozturk lodged an expression of interest in two of the three positions which most closely matched his existing position and his skills and experience. He was rejected without interview for one of them, interviewed for the second and eventually offered the third, the one he hadn't lodged an expression of interest for.

PN2244

These submissions are made on the basis that the Institute had at this stage advised Mr Ozturk that he was in the redeployment process, had advised him that his position was redundant. If that's the view that the Institute held, then it should have been complying with the provisions in clause 22 which relate to the offering of alternative positions.

PN2245

At clause 22.2 the third dot point under the definition of suitable alternative position sets out that that means a position whereby the position is equivalent to the position declared in excess of requirements in terms of salary and time fraction and where possible no less classification unless a variation is acceptable to the employee. In addition, at clause 22.5, alternative positions made available to staff should, where possible, be at least equal in terms of salary, time fraction, personal and professional status and classification.

PN2246

These provisions require the employer in a redeployment process to, where possible - and we say where possible is a strong expression, it does not mean where convenient, it does not mean where reasonably available in light of other circumstances, it is a very strong expression - where possible, an alternative position should be made available to be at least equal in terms of salary, time fraction, personal and professional status and classification. Again, at 22.12, alternative positions chosen by the employer will be of similar salary and time fractions and where possible, classification and be commensurate with the skill, qualifications and experience of the employee.

PN2247

These expressions go beyond asking that people be matched classification to classification. There is in each case a direct reference to salary as a separate criteria. There is in 22.5 a reference to personal and professional status. We say that the requirement to match salary where possible is stronger even than the requirement to match classification. For example, in 22.12, will be of similar salary and time fractions is a mandatory, whereas classification is characterised by the strong but nevertheless less mandatory where possible. Commensurate with skills, qualifications and experience goes beyond the question of what skill they are required to exercise in the position they currently occupy and asks the employer to consider the employee as a whole, including in Mr Ozturk's case quite obviously the fact that he had held CSO6 positions in the department prior to the restructure occurring, including most recently for 18 months in 2005 and 2006.

PN2248

We say that it was possible for Kangan to have offered Mr Ozturk a position which maintained his salary, his personal and professional status, that reflected his skills and experience and that was at least level in terms of classification and that was the CSO6 position. They did not do so. Mr Ozturk had been present at the consultative committee meeting on 8 February where it had been agreed that the CSO6 positions would be dealt with prior to the CSO5 positions. He received a letter from his employer saying that his CSO5 position was surplus to requirements and that he was now in the redeployment process and inviting him to express interest in a range of CSO5 positions.

PN2249

He drew attention to the provisions of clause 22 which refer to positions equivalent in terms of salary and professional status, commensurate with skills and experience of the employee. His salary was at the level of the top CSO6. His skills, qualifications and experience included past positions at CSO6 and manager levels. His personal and professional status within Kangan included access to an Institute vehicle arrangement, an entitlement usually reserved to managers. It was certainly possible for Kangan to have redeployed him to a position which maintained his salary, his time fraction, his status at no less classification level and commensurate with his skills by redeploying him to the position of business analyst.

PN2250

That this was possible is particularly clear in light of clause 22.2 which states that it would be expected that the employee could perform the duties of the position within a reasonable timeframe and that the Institute is able to offer appropriate training, counselling and support to the employee in the alternative position and 22.15, all offers of redeployment will include appropriate counselling, retraining and consultation processes. These provisions, we say, clearly envisage that redeployment offers should not be restricted to positions where the employee can fully perform the duties immediately on appointment, but encompasses the idea of training and support of employees into positions.

PN2251

Nevertheless, Kangan refused to even consider Mr Ozturk for the CSO6 position until the union pressed the point at a meeting on 20 February attended by the union organiser, Ms Bourke, and the notes of that meeting are at attachment 6 to Mr Mackay's statement. After that meeting, for the first time a superficial comparison of some elements of Mr Ozturk's old PD and the new CSO6, business analyst PD was done by Mr Langarish. Transcript at paragraphs 1436 to 1443, exhibit G8 and the transcript at paragraph 1710 to 1712 is where the history of that comparison can be found.

PN2252

In that comparison, which is exhibit G8, in fact the second page of exhibit G8, Mr Langarish describes Mr Ozturk's old position in the following terms. He says - this is in the first column in the second last paragraph:

PN2253

The previous role was focused on project management and no business analysis experience, qualifications or skills.

PN2254

In the second column at the top under the hearing of Gani's Present Position Description, referring to the old senior project coordinator position:

PN2255

Clearly a project management role and certainly not a business analyst's role.

PN2256

At the top of the first column, in the first paragraph, he says:

PN2257

The role in the old structure required wide experience in implementing and support of infrastructure, however, the new role requires experience in business analysis. Similarly the new role requires a depth of experience in building its applications capability.

PN2258

Interestingly, when trying to distinguish Mr Ozturk's old role from the business analyst's position, Mr Langarish's comparison described the old senior project coordinator role as being project management but not really business analysis, as being infrastructure focused but not really applications. Yet later, when the purpose of the comparison was to distinguish that same old role from the project manager infrastructure job, Mr Langarish gives evidence that the old job which was in the first comparison clearly project management and certainly not business analyst, is significantly different from the project manager infrastructure job because that is a project management role without a business analyst function and that the old job which didn't give Mr Ozturk the necessary grounding in applications because it was focused on infrastructure, according to his first comparison, now is apparently, on reflection, a broad role encompassing both applications and infrastructure making it essentially different from the new infrastructure focused role of project manager infrastructure.

PN2259

In fact, we say the Institute's tune has changed, depending on which of the new jobs they are trying to distinguish from Mr Ozturk's old job. Mr Langarish admits that his analysis was not as well done as he might have wished, yet at the time he did it, he knew that it was the basis on which an employee would be measured for the position. Either Kangan was gilding the lily in relation to the first comparison or they're gilding the lily in relation to the comparison they've presented in these proceedings.

PN2260

The Institute has failed, we say, to comply with clause 22.4 of the agreement which requires it to demonstrate a commitment to supporting employees in a time of change. Instead of supporting Mr Ozturk, Kangan put its efforts into refusing him opportunities and then added insult to injury by providing him with a dismissive and belittling statement about which essential criteria for the CSO6 position he'd failed to meet. That statement, we were told, was drafted by Mr Langarish. That's at paragraphs 1408 and 9 of the transcript and sent to Ms Bourke of the union by Mr Mackay, and that's at witness statement R3, attachment 13.

PN2261

The information that Mr Ozturk was given to the effect that he failed to meet a whole string of essential criteria for the CSO6 position without informing him in what manner he'd failed to meet them, bearing in mind that the first of those criteria he failed to meet itself contains something in the order of 20 separate
sub-criteria. We say that this demonstrates the way in which the redeployment process set out in clause 22 can be undermined by an arbitrary change to the structure of position descriptions.

PN2262

At the time clause 22 and the rest of the agreement was negotiated, the typical position descriptions at Kangan, taking Mr Ozturk's old position description as an example, had in the order of a dozen key selection criteria. In clause 22.2, suitable alternative position is defined as inter alia a position whereby the employee meets the primary requirements of the position as detailed in a new position description. What's happened in this case is that Kangan has adopted position descriptions which were developed using a guide designed for higher education for a university and which was accompanied by advice suggesting that use of that guide should result in position descriptions with around five to seven essential criteria and the evidence of that is at paragraphs 1381 to 1388 of transcript and G7, and ended up with position descriptions which had in the order of 40 essential criteria.

PN2263

By having so many allegedly key selection criteria, including some as vague as the 22 criteria encompassed in criteria 1, which Mr Langarish said "Pretty much described the culture and the way that we at Kangan want people to operate." That's at paragraph 1395. By having such list of allegedly key selection criteria in the position classification standard, the Institute can avoid the operation of clause 22.2 by asserting that someone doesn't meet one of those criteria and we say that's what they did in Mr Ozturk's case.

PN2264

We say it's not necessary in the resolution of this dispute to accept that all three positions contended by the union were the same, substantially similar or incidental or peripheral to Mr Ozturk's old position. It's sufficient to establish that one of them is. That is, if there's a single position in the new structure which is sufficiently similar to Mr Ozturk's pre-restructure job, as to fit the exclusion in clause 22.2, then the Institute failed to properly apply the agreement in relation to his circumstances.

PN2265

The NTEU argues that the position Mr Ozturk currently occupies, project manager infrastructure, or PMI, is the same or substantially similar or incidental or peripheral to that he occupied prior to the restructure, senior project coordinator or SPC and that it is therefore excluded from the remainder of the redeployment clause by the operation of the definition at clause 22.2. Further, we argue that even if the test were that proposed by the employer, whether the changes were merely incidental or peripheral in their nature, the conclusion would be the same. We say that is not the right test but even were it the right test, this position is the same position with merely incidental or peripheral changes.

PN2266

In comparing PMI and SPC, the two positions, there was considerable evidence led about the comparison between the two positions. There's compelling evidence, we say, that the position is the same or substantially similar and this includes evidence from two expert witnesses. There was uncontested evidence from Ms Denton, an expert in the application of the PFES system to the classification of positions in Victorian TAFE and in the factors to apply in the context of translations, restructures and job redesign. Ms Denton's witness statement, G1, reports her examination and comparison of the two position descriptions and the organisational charts for IS&S prior to and after the restructure. She sets out her experience and expertise in paragraphs 1 to 9. In paragraphs 11 to 25 she explains the basis for her comparison of the PMI and SPC positions. At paragraph 26 she concludes:

PN2267

Taking all these factors into account as well as the extent to which the detail of the two PDs match on a number of points ...(reads)... from that for senior project coordinator that it could be said to be a different job.

PN2268

There's also the evidence of Mr Johansen. It was uncontested that Mr Johansen has extensive experience and expertise in the classification of positions, using the PFES system, including at Kangan. His expertise in this area is set out at paragraphs 4 and 5 of his witness statement which is G3. His considered assessment of the SPC and PMI positions is set out at paragraphs 26 to 35 of the statement. He concludes at paragraph 36:

PN2269

On the basis of my considered analysis of the two PDs, I conclude that the changes are largely semantic and stylistic ...(reads)... from that of senior project coordinator that it could be said to be a different job.

PN2270

Mr Ozturk's own evidence shows that both in the position descriptions and in practice in the nature of the work he is expected to perform, the role is substantially the same. He continues to receive project requests in very general terms. He continues to develop project plans, to liaise with relevant applications and infrastructure specialists to identify and manage resources for the implementation of those plans and continues to be responsible for implementation within budgets and timelines. Mr Ozturk's evidence is set out at paragraphs 20 to 28 of his witness statement, G4, as well as in attachments 8 and 9 to that statement and in paragraphs 9 to 27 and attachments, 4, 5, 6, 7, 8 and 9 of that statement.

PN2271

Attachment 9 to Mr Ozturk's first witness statement contains examples of the project documentation, in the first case, the first half of that documentation relates to a project called the 100 PC Rollout Project which was conducted in 2001. The second half of that attachment contains project documentation associated with the 100 laptop rollout in 2007. How quickly the technology changes. An examination of those documents shows that Mr Ozturk's involvement, his level of planning and engagement and leadership in the 2007 project is directly comparable with his engagement in a directly comparable project conducted in his old position.

PN2272

What then are said to be the main differences between the PMI position description and the old SPC position description? From paragraph 38 to paragraph 66 of his witness statement, Mr Langarish explains why he sees the positions as no more than 60 per cent the same. By-the-by, we would say that 60 per cent the same is sufficient to fall within clause 22.2 but we don't accept a measure as low as 60 per cent. Mr Langarish says that some things previously required are not needed in the new PMI role. Specifically he points to business analysis, systems analysis, solutions architecture, the level and type of leadership and involvement in project initiation and planning.

PN2273

Specifically in relation to business analysis, systems analysis and solutions architecture, Mr Langarish provides - I'm sorry, I should have the attachment number here, but I don't, I believe it attachment 13 - a listing of elements that he associates with business analysis, systems analysis and solutions architecture which he says were present in the senior project coordinator position description and have been moved to another role in the new structure. However, he conceded that a large number of the dot points in the list of new functions in that table are in fact also found in the project manager infrastructure job.

PN2274

The following of the dot points are found in the project manager infrastructure position description. The first: coordinate the provision of new or modified software or application systems. In the project manager infrastructure position. there is a requirement to contribute to the provision of new or modified application systems which satisfy customer needs by, and then analysing customer requirements is there. Establishing short and long term objectives for application of software systems is not there in those words. Developing plans and policies and procedures which support the objectives of systems equipment and software is there. Scheduling and directing programming activities is there. Preparing project and/or customer documentation is there. Coordinating the designing and development of computer programs is accepted in transcript as being part of the role, not software but software to the extent that it deals with operating systems or the software side of applications.

PN2275

The second heading, Coordinate the Installation and Maintenance of Applications in the project manager infrastructure is actually Manage the Installation and Maintenance of Applications and Systems according to technical specifications, specifically establishing short and long terms customer support objectives is there. Identifying improvements to support services is there. Assisting with the production of customers and other systems reports is there. Encouraging customers to adopt new technologies is there. In the next set of dot points, undertaking systems equipment and software development, five of those seven dot points all occur in project manager infrastructure, and so it goes.

PN2276

The project manager infrastructure job also picks up many of the duties which Mr Langarish has relied upon to distinguish the old SPC role from the project manager infrastructure role in relation to the areas of business analysis, systems analysis and solutions architecture.

PN2277

At paragraph 46 of his witness statement Mr Langarish lists 10 primary objectives of the old SPC role. Those objectives were discussed in cross-examination and at paragraph 1479 of transcript Mr Langarish agrees that the requirement to management concurrent projects is common to both positions. At paragraph 1480 he agrees that the requirement to achieve excellent work in relationships and professional credibility with client groups, et cetera, is common to both positions. At paragraph 1481 to 3 of transcript Mr Langarish agrees that the requirement to provide leadership is common to both positions. There is some disagreement about the extent of leadership and I will come back to that.

PN2278

At paragraph 1484 Mr Langarish agrees that the requirement for a focus on the delivery of quality services and solutions is common to both positions. At 1485 he agrees that the requirement to proactively monitor progress and resolve problems and escalate issues as required was common to both positions. At 1486 to 89 Mr Langarish agrees that the requirement for implementation, maintaining and documentation are common to both positions but he puts the view that preparation and scoping of a project plan have now been removed from the role.

PN2279

At 1490 to 1492 he agrees that the requirement to operate within project budgets is common to both positions. At 1493 to 97 he agrees that the requirement to liaise with customers and internal and external providers is common to both positions. At 1498 to 1509 Mr Langarish agrees that the requirement for reporting to management is common to both positions, although the line of reporting has changed.

PN2280

At paragraphs 1510 to 1513, Mr Langarish agrees that the requirement for self-management and input into the strategic direction of the institution is common to both positions. At paragraph 1568 to 79 Mr Langarish confirms that his view that Mr Ozturk should not talk to senior managers about policy directions was a view he held while Mr Ozturk was in the SPC role as well as in relation to the PMI role and we say therefore that it does not reflect a change in expectation of the roles.

PN2281

Mr Langarish characterises the leadership role as having changed because and to the extent that there is a change in the PMI's engagement early in a project and in business analysis functions, otherwise he accepts that the leadership required of the two roles is the same and we say that transcript at paragraphs 1581 to 1597 supports that.

PN2282

The witness statement of Mr Ozturk, G5, at paragraph 24 asserts strongly that the leadership role is unchanged. It seems then that the question of the extent of leadership exercised in the new role is subsidiary or contingent on the view of at what point in a project the project manager becomes involved and the extent of involvement in initiating and developing project proposals is one of the key things that is put forward as a difference between the two positions. We say that there is no credible evidence that the extent of engagement in the development and initiation of projects has in fact changed in any significant way.

PN2283

Mr Langarish in his witness statement, starting at paragraph 13 and running through to paragraph 21 of R1, sets out some interesting but irrelevant views about various types of positions in abstract. The descriptions he sets out there are not asserted to be descriptive of the positions at Kangan Institute. It's notable that when describing his abstract or generic view of a project manager at paragraph 21 Mr Langarish includes words such as "selection, approval and initiation" as well as words such as "implementation, tracking, reporting and reviewing," only one of the three indicative duties he describes for an abstract or generic project manager, there's only three indicative duties listed there and one of them is drawing up a project plan.

PN2284

He's told us that he developed the IS&S positions based on his ideal rather than on working from the existing structure and that's R1, paragraph 22 and transcript at paragraph 1163. He's told us that the project manager infrastructure position description was not significantly changed from the draft that he prepared and that's at transcript 1144 to 45 so we might expect that the position description would reflect Mr Langarish's ideal of a project manager, however, we've also been told that Mr Langarish is not an expert in the area of position descriptions.
Mr Langarish was assertive in his view that a project manager should not be involved in the development stage of a project but only in implementation of what he called a predefined solution and he uses that expression at paragraph 55 of his witness statement, R1.

PN2285

We say that that if Mr Langarish's desire, it is not a desire which is reflected either in the position description which includes reference to the project manager's responsibility for the whole of a project and various references to initiation, nor is it reflected in the real world. When Mr Langarish was invited to give a real world example of what constitutes a predefined solution, he - I think if we turn to the transcript at paragraph 1534, Mr Langarish was asked:

PN2286

When you say that a predetermined solution will be provided to a project manager, what's the shape of that predetermined solution ...(reads)... so this is something we need done, the upgrade into XP?---Yes.

PN2287

And he's asked whether that would be infrastructure or applications and he said that's an infrastructure project. At 1538:

PN2288

What the project manager gets then is perhaps an email from you saying there's this project. Do you say we've got 2.8 million ...(reads)... and not Windows Vista or any other version of the operating system.

PN2289

We say that if that's what constitutes a predefined solution, it really places very little restriction on the point at which the project manager becomes involved in the project. The project manager takes that and in fact investigates, develops, prepares budget implications, timelines, et cetera, and that's the evidence of Mr Ozturk. We say that the evidence also shows that that has not significantly changed from before to after the restructure.

PN2290

In relation to the question of the extent of involvement in initiating and project development, we also point to the evidence of Ms Denton at paragraph 25 of her witness statement, of Mr Johansen at paragraph 30 of his witness statement and Mr Ozturk at paragraphs 12 to 24 of G5.

PN2291

In relation to business analysis responsibilities, we say that the Institute is overemphasising or exaggerating the extent of business analysis responsibilities required of Mr Ozturk prior to the restructure and that they are doing so is supported by the comparison that Mr Langarish did between the business analyst's position and the old SPC position in which he described the old SPC position as being project management, not business analysis.

PN2292

We say that the Institute is underestimating the amount of business analysis required of the current position description and again we say that Mr Langarish's wish to have created a position of a particular sort is an interesting piece of information but Mr Ozturk is entitled to consider the position description and what the position description says about the nature of the new position and how that compares to the old position and the question of whether a particular manager from time to time might ask him to work narrowly or broadly within his position description is really neither here nor there.

PN2293

In relation to business analysis responsibilities - sorry, have I given the reference to Ms Denton's witness statement at paragraph 24, Mr Johansen at paragraph 31 - I have, sorry. I'll give them again, okay.

PN2294

THE VICE PRESIDENT: I think you gave - - -

PN2295

MS GALE: In relation to the leadership - sorry, the engagement in the initiation and development of project proposals I gave references G1, Ms Denton at paragraph 25, G3, Mr Johansen at paragraph 30 and G5, Mr Ozturk at
paragraphs 12 to 24. In relation to business analysis, we rely on G1, Ms Denton at paragraph 24, G3, Mr Johansen at paragraph 31 and G4, Mr Ozturk particularly attachment 9.

PN2296

The other area of difference that was pointed to between the two positions is the express reference to training responsibilities in the new role. We say that Mr Langarish conceded that despite being a substantial part of the volume of the position description, it is not in fact a substantial part of the duties and that there is nothing in that - I think he estimated it as perhaps 5 per cent of the role.

PN2297

The witness statements of Ms Denton and Mr Johansen also address the question of the presence of express reference to training. Ms Denton states that in her opinion the inclusion of responsibilities in relation to training is a natural development of the role if it was not already there. Mr Johansen states that from his knowledge of the operations of IS&S that the engagement of trainers has been part of the project manager role since before the restructure. In Mr Johansen's statement that evidence is at paragraphs 34 and 35 and in Ms Denton's statement it is at paragraphs 18 to 22.

PN2298

The combination of Ms Denton's evidence and the remarks of Mr Langarish under cross-examination confirm that the training work is not such as has given rise to specific training related competencies being included in the position description. It's not a significant change from the old position in that sense.

PN2299

In summary, in relation to the comparison of the positions, we say that the evidence of Mr Ozturk should be preferred, that he has presented tangible examples comparing before and after, he has reported the nature of the duties that he has been asked to perform and how that has worked in practice. His evidence is supported by the expert assessments of Ms Denton and Mr Johansen in relation to the position descriptions and in Mr Johansen's case, the position descriptions and his knowledge of the way that the old position has operated and what he has seen of the department post restructure or during the restructuring process I think is probably more accurate.

PN2300

The evidence in relation to the two positions or the one position, depending on how you look at it, is that the project manager role remains the heart of the position. The project management role has not been narrowly constrained in the way contended by the employer. It continues as set out in the position description. It continues to carry responsibility levels, skill levels and a range of duties which are entirely consistent with the position prior to the restructure.

PN2301

There are changes. It is not an identical position description. It is changed in the way that the position description is laid out. It is changed in the use of language, in particular that phrases pulled from a manual developed at Flinders University have been preferred to the traditional way that such work has been described at Kangan and as far as the phrases go, we're neither critical nor supportive of the way that the work is described. We simply note that it remains the same work. The words used to describe it are different but as pointed out by Ms Denton and Mr Johansen, the differences are largely semantic. There are some changes in the actual work attaching to the position. The line of reporting is slightly different. Prior to the restructure Mr Ozturk reported directly to a manager. He now reports to a middle manager, that is the business analyst position.

PN2302

The position is described as being infrastructure focused. It's clear that there's some fuzziness on the edge of that in that Mr Langarish has conceded, reported by Mr Ozturk, as having been stated at a meeting when he was offered the infrastructure position and also confirmed by Mr Langarish in his evidence here that there will be from time to time a requirement for the infrastructure project manager to work across into the applications area. It was agreed that projects may involve some aspects of infrastructure and some aspects of applications in a single project but the position is clear in the position description and in its title that it is to be more focused on infrastructure than was clear from the position description of the SPC.

PN2303

We have, however, the remarks of Mr Langarish in his comparison of the SPC with the business analyst where he points out that the SPC position was infrastructure focused whereas in his view the business analyst position ranged more broadly across infrastructure and applications so we say that the apparent difference on paper is not reflected in practice in two ways, (1) that the focus on infrastructure will be less narrow than it appears on paper and (2) that the previous position was in practice largely an infrastructure position in any case, according to the evidence of Mr Langarish in G8.

PN2304

I would like to turn to the minutes of the consultative committee meeting of
8 February and these are the minutes at attachment 1 to G3, Mr Johansen's witness statement. It's been suggested that the minutes of 8 February are a comprehensive record of all matters that were agreed and disagreed between the parties at that time. I think Mr Mackay said - at paragraph 1864 of transcript he said they record the main areas of agreement and disagreement and if it was an issue it would have been in the minutes. He said at paragraph 1872 that up until that stage everything that was agreed upon was in those minutes, yet there is no positive record in those minutes of the supposed agreement on implementing the redundancy procedure for all staff other than James Hogan. It is faulty logic to impute the inclusive statement that all other staff will be declared redundant from the exclusive statement that James Hogan will not.

PN2305

The minutes are general in their terms and open to interpretation. They're not a forensic record of debate but a working document to record progress in relation to the ongoing consultation. To the extent that they reflect agreement about CSO5 positions such as that occupied by Mr Ozturk prior to the restructure and that occupied by Mr Ozturk after the restructure, the minutes clearly state at paragraph 4(a) that:

PN2306

Once the higher level positions are filled we would then proceed by having a further discussion as to how to proceed with filling the level CSO5, 4 and 3 positions and the AO5 position.

PN2307

That is, on the face of the minutes it is clear that the parties agreed to have further discussion at the consultative committee about how to proceed with filling the CSO5 positions prior to doing so. To the extent that these minutes reflect agreement and disagreement at the time of that meeting, we say they reflect agreement that no agreement had yet been reached about how to fill the CSO5 positions.

PN2308

Mr Johansen and Mr Ozturk, the union representatives on the consultative committee have given evidence that they repeatedly and consistently argued that instead of the spill and fill approach proposed by management there should be a process of matching existing staff to the new positions as the first step in the process. For example, Mr Ozturk said at paragraph 1510 of transcript:

PN2309

We've mentioned it in consultative committee meetings time and time again that people should be matched into positions and not have to reapply for their own jobs.

PN2310

This is supported by paragraph 8 of G5. That the union was still arguing that some staff ought to move directly into positions in the new structure without redeployment is also reflected in paragraph 5 of the minutes of 8 February where, in relation to an argument about salary and benefits maintenance, the phrase describing the union position refers to two groups of staff, those who are redeployed and those who are transferred across. The union was clearly still agitating at that time that some staff should be transferred across without redeployment. We've heard that management were unwilling to undertake a matching exercise and proceeded with the notifications of redundancy and the invitations for expression of interest, the internal advertising process.

PN2311

The evidence, including the minutes of 8 February supports the view that the NTEU and management differed about how staff and in what order staff would be placed into new positions. We've been told by Mr Mackay at paragraph 2021 of transcript that the HR department did not even take any steps to satisfy itself that the new PDs actually described new positions. Instead, they took the word of Mr Langarish that they were new positions. Mr Langarish himself has reported at paragraph 1317 that he is not familiar with the legal requirements of PDs.

PN2312

We say that the minutes do not support the proposition that the union agreed that all staff other than Mr Hogan would have their positions declared redundant. There is agreement at clause 4(b) of those minutes that the process of redeployment to be followed will be as per clause 22 of the PACCT EBA. We say the import of that agreement is simple. It refers to the redeployment clause and the redeployment process. It means nothing more than what it says on its face. To the extent that there is any redeployment going on, it will be done according to Hoyle.

PN2313

It says nothing as to how many positions may be caught up in a redeployment process, nor how many positions might get beyond the first clause of clause 22 and into the stage where incumbents are able to be redeployed. The redeployment process under clause 22 deals with more than redeployment per se but also includes preliminary considerations as to whether redeployment actually comes into effect in relation to particular positions. It also defines redeployment in a specific and narrow way. What the minutes show is that the union and management agreed to follow clause 22 in relation to the redeployment process.

PN2314

We say the minutes simply say nothing at all about any agreement as to what will happen to any specific positions other than that of Mr Hogan. There's no doubt that management indicated their intention to press ahead. It's also clear that union reps on the consultative committee didn't want the restructure process to be delayed indefinitely. We've heard that members were concerned that it should be resolved. Does this mean that the union agreed to management's intentions? No, it does not. We've been told that the union continued to agitate for a matching process while management proceeded to fill the remaining level 5 and 6 positions through a process of competitive expressions of interest and interview.

PN2315

There is documentary evidence to support this. Attached to Mr Mackay's statement is a trail of correspondence and meeting notes which shows that the question of moving staff into positions in the new structure without the need for redeployment continued to be agitated. Attachment 6 to his statement is notes of a meeting of 20 February, a meeting which Mr Mackay attended with the union and Mr Ozturk and it records discussion at that meeting of matching.
Attachment 7 to his witness statement dated 21 February is a dispute notification from the union complaining of the failure to offer a matching process.

PN2316

Attachment 15 to his statement dated 6 March, a further dispute notification from the union raising the failure to offer suitable alternative positions as was done for CSO6. Attachment 16 of 8 March, a reply from Mr Mackay acknowledging at
paragraph 2 that the CSO6 position had been dealt with on the basis that the position had not changed significantly, that is, had been dealt with in the same way as Mr Hogan and at paragraph 3 of his reply, rejecting the union's assertion that other staff were not afforded the same process or opportunity.

PN2317

Attachment 20 to his witness statement dated 22 March is an email from the union to Mr Mackay stating in the fourth paragraph that no pattern matching of existing staff was openly carried out, yet two positions were agreed to either not be redundant or directly appointed. If pattern matching had been carried out as per the redeployment procedure the whole redeployment process could have been completed now without the staff dissatisfaction that's now occurring.
Attachment 22 dated 13 April is an email from the union arguing that Mr Ozturk was not genuinely redundant and calling for him to be placed directly into the PMI job.

PN2318

It's simply not credible for Mr Mackay to claim that he thought there was unanimity about declaring all staff but one to be redundant. He himself has provided the evidence that there was ongoing contention between the parties over the issue of matching and the issue of whether staff should be placed into positions without going through the redundancy process.

PN2319

We also say that if the Commission were convinced that those minutes do reflect an agreement about all other positions being placed into the redundancy process, then those agreements would have to be taken as a whole. We say there is no such agreement but were the Commission so convinced it would have to be seen as a package of the elements in that document which include the proposition that at 4(a) we would then proceed by having a further discussion as to how to proceed with filling the level CSO5 positions. We say that by sending the redundancy notices to CSO5 staff a mere five days after that meeting and certainly before any further consultation with the union, the employer had by their own actions breached the terms of that agreement.

PN2320

Clause 22 requires the Institute, where possible, to make an offer of employment if they believe a position to be surplus to requirements which they have told us they do. They are required by the clause to make, where possible, an offer of employment that retains salary and status and at least classification level.

PN2321

An element of Mr Ozturk's employment conditions prior to the restructure was that he had access to an Institute vehicle. That access was provided for under a contract between himself and the Institute. I think Mr Mackay referred to it as salary maintenance but it clearly, on the evidence provided by Mr Ozturk, I think attachment 1 to his first witness statement, is a copy of the individual agreement which sets out his access to an Institute vehicle. It is a contractual entitlement. It is an entitlement which Mr Ozturk has been vigilant to protect such that when he moved on a temporary basis to a CSO6 position, for the duration of that move he agreed to give up the Institute vehicle but he has provided the email trail which shows that both at the time of moving and at the time of moving back, he was vigilant in ensuring that his right to an Institute vehicle in the CSO5 position would revive should he move back to the CSO5 position, which is in fact what he did.

PN2322

Mr Ozturk's CSO5 position prior to the restructure had a salary at the top of CSO6 and access to an Institute vehicle. The Institute vehicle is a status thing at Kangan. At paragraph 2093 that's confirmed by Mr Mackay. At paragraph 128 of transcript it's confirmed by Mr Johansen. Institute vehicles are generally only available to manager positions, that is positions that are classified above the top of this agreement. The Institute employed Mr Ozturk in a manager position many, many moons ago and he had an Institute vehicle at that time. There was a restructure in 2001 which resulted in him moving from that manager position to the SPC position and as part of the settlement of that restructure, Mr Ozturk negotiated a contract which retained his access to an Institute vehicle, not on a salary maintenance arrangement but as an ongoing entitlement and that is an entitlement attached to his position. It's written in on the contract. The Institute is attempting to use this restructure as an opportunity to remove the vehicle from
Mr Ozturk. They've told us the vehicle isn't needed for his new position but
Mr Mackay agreed in fact that the vehicle wasn't needed for his old position.

PN2323

The agreement requires the Institute to, where possible, move a redeployed employee into a position of equal personal and professional status and we say that that can be achieved. It is possible it can be achieved by continuing to recognise Mr Ozturk's contractual entitlement to the Institute vehicle arrangement and salary package that goes with it.

PN2324

THE VICE PRESIDENT: The basis for your argument is one of the alternative arguments.

PN2325

MS GALE: It is.

PN2326

THE VICE PRESIDENT: The second alternative argument, I take it.

PN2327

MS GALE: That's correct. We say if our first agreement or our first alternative argument are successful, then Mr Ozturk's contract of employment is not disturbed in any way by the salary maintenance provisions of the agreement, that if we are unsuccessful in those arguments and it is held that his position was genuinely redundant and that what has happened is a redeployment rather than a continuation of his earlier employment, then that still should be done according to the provisions of clause 22. It is possible for it to be done including a car and that indeed we would also argue that redeployment does not constitute a new employment relationship, it is a continuation of an existing employment relationship and therefore it is not a basis on which - there are specific provisions in the agreement which allow for salary to be frozen but there is nothing in the agreement which allows for other terms and conditions of employment which may have been entered into on a contractual basis to be removed from people merely on the pretext of a redeployment.

PN2328

THE VICE PRESIDENT: Is that a dispute then about the terms of a contract of employment or a dispute over the terms of the agreement?

PN2329

MS GALE: It is a dispute over the terms of the agreement and the way that they've been applied. The outcome of that dispute may have consequences for contractual entitlements. I'm not asking you to determine anything to do with the contract, whether or not Mr Ozturk has a contractual entitlement to a vehicle. We say by-the-by that he does and that if we are right in relation to the proper application of this agreement, then that has consequences in terms of Mr Ozturk's capacity to enforce that contractual entitlement.

PN2330

THE VICE PRESIDENT: You say the terms of the agreement on the basis of this alternative submission, that it is a redeployment, but there's an obligation to continue all benefits but it has not been reflected.

PN2331

MS GALE: We say that the agreement provides a basis on which some benefits and entitlements can be varied in a redeployment process but that that is the limit, what is expressly provided for in the agreement.

PN2332

THE VICE PRESIDENT: Where does it say that there can't be any changes of the nature of removing the entitlement to a car?

PN2333

MS GALE: Those entitlements don't arise under this agreement, they arise under separate arrangements and the extent to which those arrangements can be varied or not by a redeployment is a question of law that this agreement does not prohibit, through some other lawful means, those arrangements being varied. It does not provide a statutory entitlement for the employer to vary arrangements in the context of redundancy. The employer may or may not have that entitlement in some other form and we say in relation to this particular contract they do not but they do not have an entitlement to do so merely because it is not prohibited in this document.

PN2334

THE VICE PRESIDENT: The same could be said about the entitlement. It's not provided for in the agreement and there's nothing in the agreement that prevents a change in the entitlement.

PN2335

MS GALE: There is one thing in the agreement and that is the requirement that, where possible, the alternate position should be of at least equal personal and professional status.

PN2336

THE VICE PRESIDENT: Should, where possible.

PN2337

MS GALE: Yes.

PN2338

THE VICE PRESIDENT: You say that amounts to an obligation where it is practical to do so to continue entitlements that bear on personal and professional status?

PN2339

MS GALE: Yes, we do. For completeness in our second alternate submission, we say that in the circumstances of a position becoming redundant and an employee, as a result of that, moving to a new position within the employer's business, that that does not constitute a new employment relationship. We say it is a continuation of a single employment relationship. The extent to which an employee's position description, position, salary can be varied at the time of that move is regulated by the redeployment provisions in the agreement.

PN2340

There was some discussion with the witnesses as to whether Mr Ozturk applied first for one position or another. It was clear I think on the evidence that the train of events was that Mr Ozturk made an expression of interest in relation to two positions simultaneously, the business analyst and the project manager applications and that his initial interest was in obtaining the business analyst position, that when those attempts were rejected by the Institute and indeed the position was filled, Mr Ozturk was offered the infrastructure position at which point, on examining that position and that offer, he came to the conclusion and the union came to the conclusion that it was substantially similar to his previous position and that therefore it was not a circumstance where he should properly have been declared redundant - or his position had been declared surplus to requirements in the first place.

PN2341

We say this is entirely consistent with the position we have put that in fact Mr Ozturk could well have been matched with the CSO6 position, that in terms of the requirements of the agreement to maintain salary and status, where possible, and to reflect the experience of the employee, that he should have been matched to the CSO6 position. The union does not at this stage seek to reopen the CSO6 position, it has been filled and we do not seek to disturb that situation, not out of a technical view that the Institute acted properly, but out of a pragmatic view that in terms of settling a dispute, it's not our intention to cause further disruption within IS&S.

PN2342

However, we say that the Institute has not acted properly with respect to
clause 22. It has not properly considered whether in fact these positions designed by Mr Langarish are new in the sense envisaged by clause 22.2. They have simply operated throughout on the assumption that they are without actually putting their mind to the issue and as a result of that, they have committed further errors specifically in treating as a redeployment, moving an employee from senior project coordinator to project manager infrastructure when the two jobs are so similar as to be the ordinary incidental evolutionary changes that should be encompassed within the life of a single position. Certainly we say that the post restructure position is not so different that it is not incidental or peripheral to the pre-restructure position.

PN2343

The last point that I make, your Honour, is that the NTEU says that the evidence of Mr Mackay in general was unreliable, that on a number of points he conceded that statements he had made in his witness statement were incorrect, that it is on Mr Mackay's evidence that the employer must depend for its version of events that the union never raised a demand for matching, that the union had agreed without demur to redeployment notices being issued after 8 February. However, Mr Mackay's memory of the progress of the dispute and the issues in dispute was faulty. He had no recollection that the union had raised issues which he himself had presented in evidence in the attachments to his witness statement which set out the issues the union had raised with him. His proposition that as a manager of HR at the Institute for, I think he says 12 years, he had actually not understood what the union was putting to him or had not paid attention to what the union was putting to him, was inconsistent with his own witness statement where he asserted that the purpose of his engagement in the process was to iron out all the problems in the path of the restructure and all of the concerns of staff and the union.

PN2344

On this basis we say that Mr Mackay's evidence on the history of the dispute is not to be preferred. It is contradicted by the materials in his own witness statement, it is contradicted by the evidence of other witnesses and indeed it's contradicted by the minutes of the consultative committee meeting.

PN2345

In conclusion, your Honour, the union reaffirms all points made in our outline of submission.

PN2346

THE VICE PRESIDENT: Thank you, Ms Gale. MR RUSKIN.

PN2347

MR N RUSKIN: Your Honour, I have provided to the Commission the list of authorities upon which the Institute wishes to rely. Did you want to mark those authorities?

PN2348

THE VICE PRESIDENT: No, I won't mark the authorities, MR RUSKIN.

PN2349

MR RUSKIN: Your Honour, I want to hand up submissions to which I will talk to.

EXHIBIT #R5 MR RUSKIN'S SUBMISSIONS

PN2350

MR RUSKIN: Your Honour, I propose to go through the outline of final submissions that is set out there in that order and interweave into it matters which Ms Gale has mentioned and then I might just check that I have covered everything, if that would be all right.

PN2351

THE VICE PRESIDENT: Yes.

PN2352

MR RUSKIN: Your Honour, I will first start with the authorities. If I can start with the first four authorities which deal with estoppel by conduct. Those authorities set out what is an estoppel by conduct which is that an estoppel by conduct prevents an unjust departure by one party from the assumption of fact by holding the party estopped to that state of affairs. The rights of the parties are ascertained and declared by reference to the state of affairs at the point when the assumption of fact took place.

PN2353

In the fourth case of Thomson v Palmer, and it's restated in other decisions, the essential factors giving rise to an estoppel are the representational conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation is made, that is a representation by the NTEU and Mr Ozturk, to induce Kangan to a particular course of conduct. The second element of the estoppel by conduct is an act or omission resulting from the representation, that is not following it or departing from it and the third element is detriment, which I'll come to.

PN2354

Your Honour, the decision in Waltons Stores v Maher is an another example of estoppel by conduct. I won't go through it, but in the authorities provided to you are the relevant extracts of those four decisions that deal with estoppel. Unless your Honour has some questions I won't go through those and I'll come back to how this case fits with in with those authorities. I draw your attention to the particular parts of the decisions to which I refer on the front cover of the folder.

PN2355

The next set of authorities, your Honour, from numbers 5 to 10 of my authorities deal with what is a redundancy and I expect your Honour is well familiar with those authorities, but essentially they deal with the issue that a position can be redundant or surplus to requirements which is probably what the Kangan Batman agreement is referring to in the first part of clause 22.1 and then later in defining surplus. Those decisions say that a position might be broken up and if that occurs and the changes are significant, then that results in a redundancy of that position.

PN2356

As the decision in Quality Bakers notes on page 333, it is not necessary for the work to have disappeared altogether and then it quotes from Bunnett's case where organisational restructuring may result in a position being abolished and the functions or some of them being given to another or split amongst others.

PN2357

THE VICE PRESIDENT: Would you accept, MR RUSKIN, that here when we're talking about a dispute over the application of the agreement, the first port of call is the words in the agreement and here there's a notion of positions being no longer required in the context of redeployment as a condition of the redeployment clause applying, as it were.

PN2358

MR RUSKIN: Correct.

PN2359

THE VICE PRESIDENT: These authorities are talking about other words and the word "redundancy" and what that means and a redundancy can involve a position no longer being required so in that sense it's a similar concept, but we are talking about essentially the words of this agreement.

PN2360

MR RUSKIN: Yes, your Honour, we are and one looks for authorities to assist in the actual language of the agreement such as what does no longer required mean. One could do that. It's not very helpful. Surplus is a word which sometimes appears in these redundancy cases so I agree with your Honour they are not exactly on point and just to assist the Commission in looking at parallel authorities on what it means when a position is no longer required, even though the word "redundant" is used, I have relied upon those authorities.

PN2361

Ultimately, it is a matter for what do the words mean and we say the Commission will be assisted by some of those authorities on when does one determine when a position is no longer required, how does one determine that? When is a position no longer a position? It's a bit like the philosophy question, your Honour, which I think I did many years ago, which is when you have a chair and the leg of the chair changes, you replace the leg of the chair with a new leg, it's probably the same chair. You change the second leg of the chair, is that the same chair? The third leg of the chair, the fourth leg of the chair, the seat and the base, you do that over a period of time. Is it the same chair that was there at the beginning and I think redundancy cases, when one looks at change of duties, is a bit like that. What point is it no longer the same chair?

PN2362

THE VICE PRESIDENT: Or a case of musical chairs.

PN2363

MR RUSKIN: Or a case of musical chairs. Your Honour, I won't go further with the authorities on the cases of redundancy but just draw the Commission's attention to them. The last two authorities, the Shell case in 11 and 12 of the list of authorities, in the Shell case which was about whether a position changed or not, at paragraph 105, which is just before the paragraph I've referred to in my list of authorities, Commissioner Holmes says:

PN2364

In my view the various authorities to which the parties have referred concerning managerial responsibility ...(reads)... what work they will perform subject to constraints imposed by common law legislative law.

PN2365

That's pertinent to the issue of how this implementation will work out and what Mr Langarish's evidence has said about the functions of the positions.
Paragraphs 106 and 107 say that managerial prerogative is still a matter that can be taken into account in a case such as this.

PN2366

THE VICE PRESIDENT: Isn't this case more about the consequences of the management decision to restructure?

PN2367

MR RUSKIN: It is mostly about that, your Honour, but to the extent that there is a debate about how the implementation is going to work and what things mean, we rely upon those to say well, once you take account of what the manager in the position says, is the way in which he intends it to work should there be any doubt about it. There's a debate about what Mr Ozturk is doing in this early phase of the new structure and we say that weight should be given to what Mr Langarish says is the way that it will be implemented.

PN2368

Your Honour, if I could take you to R5, R5(b) sets out what the dispute is about and the second paragraph, this dispute is not about whether the consultative process was unfair or should have been different and it's not about whether Kangan should have adopted a different redeployment process, although we say that much of the dispute after 8 February is focused on what redeployment process should have been followed, but that's not got anything to do with whether the position was no longer required.

PN2369

Paragraph (c), operation of clause 22, in my earlier outline of submissions filed on 8 June I go through how we see clause 22 operating and the first issue is whether a position was no longer required. If a position was no longer required, that is when the redeployment process kicks in and in my submissions, your Honour, I deal with this issue of whether there's a two step process to determining when you are in the redeployment process. The union would say that - well, I think it would say that a position could be - I think I understand it to mean that a position could no longer be required but you're still not in a redeployment process because another position might be incidental or peripheral.

PN2370

We don't see that it works that way, your Honour, as those submissions explain. The reference to incidental or peripheral is a protection. In the language of industrial relations agreements, as opposed to other agreements, it is a protection in saying that you don't say the position is no longer required if the change to the position is incidental or peripheral. There's one test and the test is, is the position no longer required and in making that assessment one considers other changes peripheral or incidental. If they are not incidental, if they are not peripheral, then the position is no longer required.

PN2371

THE VICE PRESIDENT: You accept that the definition of redeployment has relevance and provides a gloss, as it were, to the concept of where the positions are no longer required in the first part of clause 22.1.

PN2372

MR RUSKIN: Yes. I think it's seeking to assist how you get to redeployment. You get to redeployment where a position is no longer required and that includes that any change is not merely incidental or peripheral. If the change to a position is incidental or peripheral, then there isn't a redeployment at play and the position is required.

PN2373

THE VICE PRESIDENT: The position is required, yes.

PN2374

MR RUSKIN: Your Honour, the definition of peripheral and incidental were - I think Ms Gale provided the Shorter Oxford and I provide the Macquarie and I think Ms Gale didn't mention that in the Macquarie definition of peripheral, peripheral means of minor importance, not essential, superficial and I think that's very important, whereas incidental is - if one looks at the Macquarie definition, it refers to liable to happen in connection with, natural, appertaining. Again, if you read it in the context of the word next to it, peripheral, it's a matter that is not significant.

PN2375

THE VICE PRESIDENT: Would you accept that terms such as that derive their meaning from the particular context they're talking about, so whether one position is incidental to another position actually requires an understanding of what a position is and what one - another that is incidental to it might be or something that actually can't be described as incidental to that position. The words have a general meaning but again their true meaning by the particular context.

PN2376

MR RUSKIN: Yes, your Honour, that's clear. One looks at the definition and then one attempts to apply it to the circumstances and I think if you read it in that way, not incidental or peripheral to the current position, I say that means if it is not incidental or peripheral, then it is a new position and the old position is no longer required. If it is incidental or peripheral, then it is to be treated as if it were the same position and therefore the old position is required.

PN2377

The key issue in this case, your Honour, is, are we past 22.1? When I say that I include that definition of redeployment which seeks to assist in what 22.1 means. If a position is no longer required, one is in the redeployment mode, in the redeployment process. If a position is required there is no issue of redeployment and that's very important.

PN2378

Moving to the next section, agreement notice under clause 22, your Honour, which should be marked (d), we say that for the purposes of clause 22 the parties agreed on 8 February that the senior project coordinator position and all other positions, save one at that time, were no longer required. For all the attempts to read the minutes of that critical meeting, one should read on the face of it and in the context of what followed it and on the face of it, firstly, paragraph 3 says that the positions were PFESED, points factor evaluated.

PN2379

Paragraph 4 says it was further agreed, so the parties agreed and one of the parties is the party - the two parties that agreed are the parties in dispute and the NTEU agreed that there would be a staged approach, that the process of redeployment will be as per clause 22 and that one position would be exempt from the redeployment process. The fourth agreement was about what Mr Johansen was to do. If you read those together, your Honour, the agreement was the redeployment process would begin, that all would be in it, bar one.

PN2380

It's particularly pertinent as to the way the exemption is described. The exemption is of James Hogan who was a CSO5 and it was held he should retain his position. He's exempted. If you're exempted from something, then you look at what it is that you're exempted from. He's exempted because he's retained his position. Everybody else who hasn't been exempted is the opposite, they haven't retained their position. There was agreement to that effect and there was no demur from that point on until 13 April. There were lots of disputes but not about this.

PN2381

Notwithstanding that agreement, a further position was exempted, which was something that Mr Johansen from the NTEU orchestrated, and sensibly so, where the network analyst position was exempted soon after because that job was changed so that it was reclassified and it was held to be the same position and therefore that was the only change.

PN2382

Thereafter, if I can read from the top of page 2, there was no contention that the redeployment process did not apply to Mr Ozturk. In fact, there is a continual reference in NTEU correspondence about Mr Ozturk being a redeployee. You can't be a redeployee and yet your old position exists. There was nothing in the correspondence and there's no evidence before the Commission that the NTEU or Mr Ozturk before 13 April alleged he was not a redeployee. In fact, it was the other way around, if one sees the correspondence from Ms Bourke.

PN2383

In the correspondence, for instance, of attachment 15 of Mr Mackay's statement, Ms Bourke says that the Institute has failed to apply clause 22, this includes failing to offer suitable alternative positions. One CSO6 was offered a suitable position, however, others were not afforded the same process. Further the Institute has advertised externally two CSO6 positions that could have been filled by redeployment, one of which is the subject of an earlier dispute. Mr Ozturk could have filled the CSO6 business analyst position, says Ms Bourke, by redeployment. You don't get that there other than when your position was no longer required. There's other correspondence about Mr Ozturk being a redeployee, not a redeployee under protest, but a redeployee.

PN2384

Accordingly, if I can move to paragraph 5, there is no dispute before the Commission as Kangan's actions were consistent with the agreement of the parties and thus there is no jurisdiction for the Commission under 170LW. We say, your Honour, that the parties determined that the positions were no longer required, Mr Ozturk's position was no longer required and it is with respect, of course, not open to the Commission to undo that. the Commission can't undo a naturally made agreement that positions were no longer required.

PN2385

The NTEU and Mr Ozturk, as party principal to that agreement, he was at the meeting and represented the NTEU, cannot recant on the agreement by
two months later claiming a dispute about that matter in fact now exists and I refer, your Honour, at paragraph 6 to the evidence about the agreement.
Mr Johansen accepts in the transcript at paragraph 56 to 59 - - -

PN2386

THE VICE PRESIDENT: Do you say that the consultative committee on 8 February had sufficient information to determine that all of the positions, apart from one, were no longer required?

PN2387

MR RUSKIN: It was open to the committee to - if it didn't feel it had enough information, to not make that agreement, to not strike that agreement.

PN2388

THE VICE PRESIDENT: Why wasn't it open to the committee to seek to have people placed in appropriate positions, regardless of the means by which they were placed, in mother words whether it is by a process of redeployment or a process of matching or reconsidering whether a position was no longer required, if particular outcomes were achieved as a result of further applications of the consultative process? Why should we read the minutes of the meeting as a decision on the technical application of clauses in a way that limits the parties' rights thereafter?

PN2389

MR RUSKIN: Your Honour, because an agreement is an agreement. The union doesn't say that we didn't have sufficient information at the time. The union reached an agreement and they should be held to it as parties should be held to an agreement. They don't say they were overborne. They don't say that they didn't have sufficient information. There had been, I think, two previous consultation meetings. The union had participated in the points factor evaluation process. Both parties wanted to proceed with the restructure. It was at that point open to the union to say what it is they disputed and they didn't so it isn't open to them to now say, because of the detrimented clauses, that that isn't so. We say that it was an agreement, it was made without pressure and they didn't seek to exempt Mr Hogan.

PN2390

THE VICE PRESIDENT: Were they making a clear agreement and a commitment or acceptance that all of the other positions were no longer required or were they simply acquiescing in the process of looking at redeployment that the Institute had proposed to embark on by its process - - -

PN2391

MR RUSKIN: No, your Honour.

PN2392

THE VICE PRESIDENT: - - - in sequential manner?

PN2393

MR RUSKIN: It didn't acquiesce because it agreed, the word "agreed" is used. You might remember that there was no doubt that these minutes are accurate because there is an email at attachment 3 of Mr Mackay's statement where Mr Ozturk says, "Minutes accepted as presented." He's asked, "Are you agreeable to the minutes?" "Yes, I am." So it isn't acquiescence, your Honour, it is an openly made agreement between the NTEU and Kangan that this is the way to proceed. Mr Mackay has given evidence that if there was not agreement about that, they would not have proceeded.

PN2394

THE VICE PRESIDENT: If you take paragraph 4(a), for example, this is where there was agreement that there be a staged approach that once the higher level positions are filled, will proceed to have further discussion as to how to proceed with filling the other positions. Why does that necessarily mean that that is a redeployment process as such? If a position was identified as being substantially the same as one of the lower positions then it could be filled.

PN2395

MR RUSKIN: Because of paragraph (b) and (c).

PN2396

THE VICE PRESIDENT: (b) says that the process of redeployment will be as per the agreement but where does it say that's the only process involved?

PN2397

MR RUSKIN: Because, your Honour, paragraph (c) says that someone is to be exempted from the process and that means everybody else is in it. If there was any doubt about it, it would have said that. It would say that Mr Hogan is exempt from the redeployment process and whether everybody is in the redeployment process will first be determined by having further discussions. It doesn't say that. It's clearly three things that it says, there will be discussion as to how to fill the positions and your Honour says, well, that could mean by any means, we'll come back to that. The process of redeployment will be followed. Why not mention anything else, why redeployment? Thirdly, there's an exemption of Mr Hogan.

PN2398

Putting those three together it is agreed that the redeployment process will now proceed. It will now proceed because only Mr Hogan is exempt from it. It will now proceed and that is why the process of redeployment must follow clause 22. That's a reminder to the parties now we'll follow redeployment in case of clause 22. It doesn't say we'll go back to clause 22.1 to see if the positions are the same. That's clearly connected with (c).

PN2399

THE VICE PRESIDENT: There is no other process. If a position is required on an ongoing basis, there' no alternative process, you don't have to refer to anything else.

PN2400

MR RUSKIN: Indeed you don't, your Honour, and therefore if there was a debate about that we were still in clause 22.1, that would have been mentioned. The reference to the filling of positions, after further discussion, is this continual reference in later material about how you fill the positions. Do you fill it by placing people into those positions or matching them, or do you do it by advertisement? The union didn't want the employer to simply work out what was the most suitable alternative - sorry, it wanted the employer to, in discussions with the union, to place redeployees in suitable vacant positions, not to require the employees to compete with one another. That was what that meant, your Honour.
This is borne out by what happened afterwards. There is no material that indicates that there was any disagreement about the interpretation of these minutes that I have presented to this Commission.

PN2401

THE VICE PRESIDENT: There is no express indication that there was agreement as to the interpretation that you're now putting. It might be that the Institute had a particular interpretation and a process and a belief and it is the case that minutes were drawn up and they were agreed but the proposition that you're putting that the union and Mr Ozturk agreed that none of the positions were the same, apart from Mr Hogan, is something you need to infer rather than something you can refer to expressly, is it not?

PN2402

MR RUSKIN: Your Honour, it isn't a legal document. It was drawn by industrial relations parties - sorry, it was drafted up. I don't know who drafted it but whoever drafted it was agreed it isn't a legal document. A legal document might have said what - I take the point you make about it but it does have the same effect. If one looks at it, if someone is exempt from the redeployment process, the process of redeployment is to be followed, that it is clear that it is about what stage of the process we're at.

PN2403

THE VICE PRESIDENT: Because it's not a legal document and it is minutes of a consultative meeting, wouldn't you properly interpret it by giving some latitude, not reading legal significance into things where that might not be an absolute necessary step.

PN2404

MR RUSKIN: If you did that, your Honour, there wouldn't be much left of industrial agreements. They would all have holes shot in them because one can find that it doesn't say explicitly what a legal document is.

PN2405

THE VICE PRESIDENT: If you're putting the proposition that the union and Mr Ozturk are hung by the wording of the minutes of a consultative committee meeting and precluded from raising a dispute over the matter because of the nature of the discussions and the nature of matters agreed at that meeting, what I'm suggesting to you is that what you're seeking to rely on is a matter of inferences in the minutes of a consultative committee meeting, not anything of more substance than that.

PN2406

MR RUSKIN: The first part, your Honour, is to look at the minutes and to say that was an agreement and then you look at the conduct of the parties afterwards, which assists in the interpretation of an agreement.

PN2407

THE VICE PRESIDENT: Yes, but - - -

PN2408

MR RUSKIN: If this matter was 9 February, your Honour, then I wouldn't be able to, that that might make it more open if the union on 9 February said, "Well, just a moment, we say that, you know, we still think the redeployment process hasn't begun in the case of Mr Ozturk." That would be a different matter. I'm not just relying on the agreement. I'm relying on what happened for two months afterwards. I'm relying on the actions of Mr Ozturk and the NTEU in raising all sorts of disputes, in raising all sorts of matters, but never, never raising the claim that is made till 13 April.

PN2409

I think one interprets an agreement, your Honour. I accept that we would have difficulties if it was 9 February but it's open to the Commission to determine that the parties agreed that the redeployment process for Mr Ozturk had begun. That's borne out by the minutes and the fact that Mr Ozturk calls himself a redeployee without demur until 13 April.

PN2410

THE VICE PRESIDENT: I don't disagree with that in the sense that the parties were clearly looking at whether Mr Ozturk was going to be redeployed into a particular position but whether that carries with it that he was precluded from raising any other dispute in relation to the application of the process and whether clause 22.1 had been satisfied or not, I find difficulty really.

PN2411

MR RUSKIN: That's what we put, your Honour. That's exactly how we put it, that if the Commission is to handle disputes, it should handle matters which are disputes and we say that the Commission can't go, with respect, and open a matter which has not been disputed and which there has been reliance on that agreement for two months or so.

PN2412

Perhaps if I could move to the estoppel point, your Honour. Might that assist? I'm happy to answer further questions.

PN2413

THE VICE PRESIDENT: Yes. It's related, is it not?

PN2414

MR RUSKIN: It is related. If there was no agreement, if your Honour concludes that the minutes are not definitive and the conduct of the parties is not inconsistent with the theme I'm putting as to the interpretation of the minutes, then we say estoppel by conduct comes into play. If there was no agreement, then for the purpose of exercising its rights and discharging its responsibilities, Kangan relied upon the conduct of the NTEU and Mr Ozturk. Mr Mackay gave evidence towards the end of proceedings, at 2179, when he says:

PN2415

If there had not been agreement on 8 February would you proceed with the redeployment process?---No, we would have continued with the consultative process to get agreement.

PN2416

It would be unjust for the NTEU and Mr Ozturk to resile from the position that there was an agreement about the abolition of certain roles, particularly
Mr Ozturk's role as at 8 February 2007 and that none of the roles being offered were either identical to or identical save for nothing more than incidental or peripheral changes. That was the position that they adopted. They did not demur from it and Kangan Batman TAFE relied upon that by dealing with all sorts of other matters by proceeding with the redeployment process by going through a process of matching to see whether Mr Ozturk was suitable for the position of business analyst by dealing with the disputes that the union had raised.

PN2417

But if it had known that all along Mr Ozturk claimed that his position had never been abolished, then it would not have gone down those paths.

PN2418

THE VICE PRESIDENT: Isn't there an ambiguity as to what the parties meant by matching?

PN2419

MR RUSKIN: There is an ambiguity, your Honour.

PN2420

THE VICE PRESIDENT: And it seems like the Institute from what you've just submitted is whether the skills of Mr Ozturk matched the needs to the suitable alternative employment. If the matching process is looking at a previous job, a previous position and a new position, then it seems like it's a process that's not involved in the redeployment clause.

PN2421

MR RUSKIN: But every time matching is used, it's in the context of redeployment, matching as a redeployee, not matching in terms of my old position. He never claims as one of his arguments my old position. He says I have the skills to perform it. He never and the NTEU never says that this position is the same position. The conduct upon which Kangan relied in the belief there was an agreement was the conduct of the NTEU after 8 February, 7.1, the minutes, the joint statement.

PN2422

Neither Mr Ozturk nor the NTEU demurring from Kangan's letter to Mr Ozturk of 13 February advising him that the SPC role was no longer required. He made other claims about it, he did indeed. He did dispute that he couldn't apply for the business analyst position, but he never demurred from the fact that he was a redeployee which is what the February letter did. In fact, he claimed the BA role was a suitable alternative position as well as a similar position. Mr Ozturk submitted on 16 February expressions of interest in the business analyst position and the project manager analyst role which is at 7.5 of my submissions, but never raises this job, the PMI role.

PN2423

There's other assertions that he claims that another position, not this one, was very similar which should be matched to the SPC role, but in the context of being a redeployee. That is, of course, entirely inconsistent with the claim now brought today. I will just expand on that, your Honour, that the union claimed the business analyst position was very similar, there doesn't seem to be a dispute about this, to his old SPC position and they say that the SPC position is similar to the PMI position. He simply can't be both. There's one piece of evidence on this and that's Mr Langarish.

PN2424

THE VICE PRESIDENT: But the way you've described in paragraph 7.6 what the union and Mr Ozturk were asserting, that the BA role and the SPC role were matched by reference to their respective duties, I take it, that is a process, that's describing matching in the sense of comparing positions rather than skills to a position and therefore undermines what you submitted earlier, that the parties were actually looking at and treating matching in the sense of matching skills to positions.

PN2425

MR RUSKIN: Well, your Honour, if one looks at the correspondence, the claim is made that the position is similar in the context of being a suitable alternative position, in the context of Mr Ozturk being a redeployee and there is reference at times to skill. There is no reference to it being that it's his old position. There's no claim in any of that that he should be given this position because it's his old position and so matching we say is in the context of - as a redeployee.

PN2426

THE VICE PRESIDENT: And the parties involved in a restructuring in the IT area of the tertiary institution should be required to identify the particular clauses and the way in which they put propositions with far greater precision if they are able to agitate those matters in the future under the disputes clause.

PN2427

MR RUSKIN: Could your Honour repeat that, please?

PN2428

THE VICE PRESIDENT: Yes. The proposition that you're putting is could I suggest a very high standard expected of those that are involved in the relocation, the restructuring process, that they need to understand the nuances of the operation of the clauses and use appropriate terminology, otherwise they're precluded from subsequently raising a dispute over the matter.

PN2429

MR RUSKIN: You look at the whole context of it, your Honour, but one point is that if the principal parties to this agreement, that made this agreement, that helped draft this agreement, the NTEU, operates on the proposition that one of its members is a redeployee and that nowhere until 13 February does he or the union claim otherwise, then, yes, one is precluded.

PN2430

THE VICE PRESIDENT: But on 20 February they are saying that the BA role is similar to the SPC role.

PN2431

MR RUSKIN: Yes, but in the context of it being a redeployment and that it should be a suitable alternative position for him, not that it is his old position, that the letter of 13 February should not have been sent because he was never a redeployee. In 7.7, your Honour, Mr Ozturk submitted in his covering letter that the SPC role more than matched the PMI position - sorry, the PMA position. We say that means that in the context of it being the same position, he sees the SPC role as more senior than the PMA position.

PN2432

At 7.8, Mr Ozturk notes time, submitted an expression of interest in the PMI position. Why would you not express interest in the position that was yours if you believed it? He never asserted it. The email from Ms Bourke, that goes to the same point we've been talking about, it should be matched to the similar position in the context of being a redeployee. At 7.10, the email from the NTEU that Mr Ozturk ought to be redeployed into the business analyst position. There was no doubt in the mind of the parties where we were in the process and so we say they are precluded from now saying all along the position was the same or similar when it was never asserted. 7.11 I think I've made previously.

PN2433

7.12, the conduct of the union at the meeting of 26 March in which they sought detailed reasons for Kangan's decision not to offer the BA role and by their request that Kangan supplement the PMI role so as to justify the existing salary. That's not an assertion that the position is the same, by neither the union nor Mr Ozturk asserting at any time before 13 April that the SPC role was the PMI role.

PN2434

THE VICE PRESIDENT: That is also seeking some variation to the position descriptions by adding things to the PMI role.

PN2435

MR RUSKIN: Yes, your Honour. Well, that could well happen in a process of determining a suitable vacant position or suitable alternative position. It doesn't go to the issue of redeployment.

PN2436

THE VICE PRESIDENT: And if the position descriptions are in a state of flux to that extent, then is it not open for positions to be seen to be sufficiently equivalent or still required as a result of changes?

PN2437

MR RUSKIN: They weren't in a state of flux, your Honour. This was a request by the NTEU and was accepted.

PN2438

THE VICE PRESIDENT: Yes, it was a request. Perhaps they thought it was still in a state of flux or the particular requests would be considered and changes could be made.

PN2439

MR RUSKIN: I come to why they request that, the motivating reason is the salary. The motivation in all of this is salary and they're seeking to find ways in which to retain the salary which would be by making Mr Ozturk a CSO6.

PN2440

THE VICE PRESIDENT: You don't get a salary until you get a position.

PN2441

MR RUSKIN: Well, he had been offered a position at that point. He just was trying to maintain his salary by being reclassified as a CSO6, but that request has got - doesn't take away from the argument that he thought he was a redeployee, he acted as a redeployee and the union acted as if he was a redeployee, but it does say that he didn't then claim that the position was - the PMI position was the same as the SPC position, so we say that the Institute relied upon the representations made by the NTEU. There were many disagreements and disputes, but there was no disagreement on this point and it would be to the Institute's detriment if the Commission - so there is detriment on the part of the Institute if the union is able to extract itself out of the representation made.

PN2442

It has implications for others, too, who will now be able to come and say, well, I've been put on salary - my salary has been frozen, I've accepted a position, I will now argue that maybe my position should be the same, was the same all along, I'll have a go because Ms Gale says a position could be the same even if it's more than 40 per cent different. Ms Gale says three positions were the same as Mr Ozturk's former position. This creates pandemonium if one accepts, if the union is able to extract itself from the representation, that opens up all sorts of future disputes for this Commission about what really should have happened to people back then, people who have in this new structure accepted positions and have been put on salary maintenance or who have had their salaries frozen, so there will be a detriment to the Institute if the union is allowed to extract itself that way. That's why we say, your Honour, that it should be held to the representation it made and by doing so, there can't be a dispute about this matter. There can be disputes about other matters, but not about this matter.

PN2443

THE VICE PRESIDENT: You say that once the union and Mr Ozturk jumped on the train which was redeployment which was the process the Institute was on, that they did so in a way which should be regarded as their agreement, that there were no positions that were still required apart from Mr Hogan's and it's not possible to get off the train and go back to the station or anything else. Once that happens, it's not possible as a matter of jurisdiction.

PN2444

MR RUSKIN: Yes, your Honour. We say that as a matter of jurisdiction, when one looks at the material, one shouldn't be able to get oneself out of the process that has been followed and where there has been no representation that the position is the same. This was a representation not just that Mr Ozturk was a redeployee, but by dint of claiming other positions were the same position, a representation that the position offered to him was not his old position, so I think it does create industrial disturbance if the Commission says in this case that despite all of this evidence, that an employee represented by a union can claim when all other attempts have failed to say notwithstanding the reliance you've placed on our representations, it conveniently suits us to now argue that the position is the old position. Why does Mr Ozturk claim this? It's clear why he claims it. It's a tactic to maintain his employment conditions and I will deal with that in my submissions later.

PN2445

THE VICE PRESIDENT: Is that a convenient time?

PN2446

MR RUSKIN: Yes, your Honour.

PN2447

THE VICE PRESIDENT: We will adjourn until 2 pm.

<LUNCHEON ADJOURNMENT [12.53PM]
<RESUMED [1.56PM]

PN2448

THE VICE PRESIDENT: Mr Ruskin.

PN2449

MR RUSKIN: Your Honour, I am about to begin from the top of page 4 of my submissions. I would just like to address some issues about the issue of the exemption from the redeployment process and you and I had a discussion about what the minutes meant and what all these things meant. If I could take you to the transcript of Mr Johansen's evidence as to whether the agreement reflected the fact that the parties agreed that the redeployment process would begin for everyone but Mr Hogan. The union said, well, it doesn't say, it doesn't put it in a positive, only in the negative. Mr Johansen said at paragraph 74 and I quote my question:

PN2450

But you agreed it was appropriate for staff to accept for Mr Hogan to be notified that the redeployment process was to begin after 8 February ...(reads)... about how you go about putting people in positions, is that
right?---Yes.

PN2451

And then at paragraph 85:

PN2452

There is no other disagreement reflected in these minutes, is there?---No, apart from the six.

PN2453

Which I think is a reference to paragraph 6 about income maintenance. There's a discussion at paragraph 90 about Mr Natschuv as to how he was classified and at 93 I say:

PN2454

And he was placed into it and he was placed into it directly without having to apply?---He was exempt from the redeployment process, yes.

PN2455

At paragraph 95:

PN2456

No-one else was exempt from the redeployment process?---No.

PN2457

Your Honour, an employer should be able to go through a process with a union and follow a logical process following an agreement and tick off the steps as you go along without going back and revisiting the steps in the process because those steps now don't achieve the end and the end is to maintain Mr Ozturk's salary, including increases and car. I will address that later on in the submissions, but it is that which drives this and there will be industrial disturbance if the union is able to use 170LW to pursue a matter which has been agreed and ticked off and find a loophole to achieve the very end which has been sought since January.

PN2458

That is a significant matter and we say that the principle of estoppel by conduct is one which the Commission should have regard to and not disturb the industrial arrangements which have been agreed. If I can move to paragraph 9 and this is about the differences in the position. The positions are different. How different are they? There's evidence from Mr Langarish that they are significantly different. They need only be different in the sense that the differences are not peripheral or incidental. If they are peripheral or incidental, then the agreement which is the instrument one looks at is what results in there being no redundancy or to use the language of the agreement, no issue about the position no longer being required.

PN2459

That is the test and the evidence shows they are different to the extent that the SPC position is no longer required. They are also different by - we will get to the actual evidence, but one looks at the conduct of the union and Mr Ozturk. At all times prior to 13 April, Mr Ozturk and the NTEU acted as though they were different and I have referred to earlier paragraphs in my submissions which refer to 6.4 to 6.13. I think it means 7.4, your Honour, I am sorry, and 7.13. Mr Ozturk raised many matters, but he never ever raised the fact that the position that he now says is the same was the same.

PN2460

He didn't apply for it, he didn't say it was the same. He and the NTEU were well capable of raising disputes about many matters, but never that. Mr Hogan was exempted. Mr Natschuv went with the encouragement of Mr Johansen to management to say change the position, change that position and it will be like my own and that was agreed. Mr Ozturk never does that, because it suited him not to. It doesn't now. Further, at relevant times prior to 13 April, the NTEU and Mr Ozturk asserted that the SPC position ought properly to be matched to and was similar to the business analyst position. It can't be both. There is a piece of evidence to that. One needs only to look at the different job descriptions, but if one looks at the only piece of evidence on this matter, one looks at paragraph 1715. This was to Mr Langarish:

PN2461

Are there differences between the business analyst professional services co-ordinator and the project manager infrastructure role in the new structure?

PN2462

So that is saying is the CSO6 position, is it different to the CSO5 position that Mr Ozturk was offered? Mr Langarish says they are vastly different and they are vastly different. The business analyst position has got nothing to do with implementation of project management. There's no reference to that at all. There is only responsibility for the preparatory steps before the project is implemented, so they are not similar and that's the evidence to support it and it is also a different classification to the SPC position.

PN2463

It would be very peculiar if a position that is at one classification could be similar to a position at another classification. That would be very odd, indeed. It would mean that an employer could effectively say that a position which was at CSO6 was the same as a position at CSO5, similar and the person stays in it because they're not redeployees and the position is still required because it's similar.

PN2464

THE VICE PRESIDENT: Is there any assistance from those authorities which deal with the proper way to classify a position by reference to its fundamental requirements as it were, rather than its range of duties or tasks, the real purpose, the substantial purpose of the role? Is that of any assistance in that context?

PN2465

MR RUSKIN: That is, your Honour, particularly in the context of this case such as leadership. Ms Gale says the leadership positions are similar, but she accepts that there's one fundamental difference which is that the position of SPC reported to a manager and in her words, the position of PMI reports to a middle manager. I think when you look at the substance of a position, that is a fundamental issue and one could take account of that. The leadership functions of this position are significantly different and they are not about so much duties and responsibilities as about the fundamentals of the position and there's one example of that, your Honour, at - if it would assist your Honour with the paragraph when we were in re-examination.

PN2466

Firstly, there was no leadership team as such in the old structure and there is in the new. If I could take your Honour to paragraph 1752. In that discussion which arose from a cross-examination by Ms Gale, there was a discussion about whether one of the functions in the SPC position was still required:

PN2467

Require self management, including influence in managing high IS&S strategic directions.

PN2468

And in re-examination, Mr Langarish was asked at 1756:

PN2469

So do you require the PMI role to manage high IS&S strategic directions?
---Certainly not.

PN2470

Now, that is about the fundamentals of the position being very different, however much one gets to the duties and responsibilities. The PMI position is not involved in the strategic direction of IS&S where under the SPC position, it was, so I think one is assisted by that, your Honour. My point about paragraph 11 is that if the business analyst position - if the SPC position ought properly be matched to the BA position which is a CSO6 and Mr Ozturk said could be and it was similar, how could it also be the case that the PMI position is similar to the SPC position?

PN2471

If Mr Ozturk asserts, as Mr Johansen said, that really the SPC position is sort of a CSO6 and that helped Mr Ozturk's argument in trying to say the BA position was similar, it's illogical to say now we say that the SPC position is similar to a lower classification, bearing in mind that both the BA and the PMI positions were only recently points factor evaluated. Ms Gale asserts that all these positions are similar. They can't be. You can't say a position is similar if it results - when two positions are of different classifications, because if you could, as I said earlier, it would be open to management, to the employer, to look at a position that is a 5, create a new structure, identify a position in the new structure which is not a 5, but a 4 and say it's a similar position, you stay in it and you lose classification, you are not a redeployee, not possible, contrary to all the meanings of positions no longer required.

PN2472

At paragraph 12, your Honour, the Commission should accept and where there is conflicting evidence, refer to the evidence of Mr Langarish as to his intention to start the structure with a clean plate. He did not create the PMI position out of the SPC position and he sought to create specialties in the structure. This is a completely new structure and he's given evidence about that and I've pointed you to the transcript. Take account of the fact that he as the manager, what he as the manager of the department intends for the PMI position, the fundamental restructure of the department, including the establishment of a leadership group that didn't exist before.

PN2473

There wasn't a leadership group and as Ms Gale says, Mr Ozturk was reporting to a manager, he now reports to a middle manager, Mr Ozturk had a role in strategic direction, he doesn't any more. He is not in the leadership group. That is a change to what he was doing previous. The different requirements of the SPC and PMI positions, the difference in the WBOA project in relation to the old structure and the new structure. In final submissions, Ms Gale and I was going to take you there, but I could do it now, talked about the fact that the XP project was - I will just take you there, your Honour.

PN2474

The way that that was going to be implemented was not very different from the project back in 2001, I think it was said. If one goes to paragraph 1541, we have a discussion about the Windows XP upgrade and Ms Gale says, well, it's not really very different, it's not different to what would have happened in the old structure as opposed to the new structure. Ms Gale might be right, because it's a very small project. It's a project that does not require the elements of the SPC position which we say are no longer in the PMI position and as Mr Langarish says, it's a very small project, so I took him to the WBOA project which is at 1782 and from 1782 to 1785, there's evidence about how different that would be in the old structure compared to the new structure and that's the sort of project that will be significant, which is a significant example of how the roles are different.

PN2475

Paragraph 13 of my submissions, I state again that they argue the SPC was similar to the BA role. It can't be both. The NTEU also argued that the SPC position was a higher responsibility position, a CSO6 in reality. Mr Johansen said that and therefore it cannot be similar to a position which has been points factor evaluated as CSO5. At paragraph 14, Mr Ozturk himself said in cross-examination that matching would not necessarily have resulted in him being appointed to the PMI role. That's astounding.

PN2476

If matching means, if one concedes which I don't that matching is seeing if the old position is the same as the new position, how could it be that it might not necessarily have resulted? The other evidence about the position being different, your Honour, is to harp on to this - my submissions about the reference to Mr Ozturk being a redeployee which meant that the position he has occupied was no longer required and I've taken you to what Mr Johansen said about the fact that there was no other disagreement. Well, I will take you there. He was asked:

PN2477

Was there any other disagreement reflected in the minutes?

PN2478

He says:

PN2479

No, there isn't.

PN2480

At paragraph 15 of my submissions, there is unchallenged evidence that a number of the responsibilities of the SPC position have been transferred to several other more senior positions within the new structure and that's in Mr Langarish's witness statement, leaving the PMI position with significantly different responsibilities from the SPC position. I believe that's at around paragraph 49 to 55, your Honour, describing how the jobs - the elements that were in the SPC job have moved to the more senior roles within the organisation.

PN2481

These key responsibilities are no longer required because this is what it all boils down to. The PMI will implement projects. The scope of the SPC position involved duties and responsibilities such as business analysis, business plan, cost benefit analysis, systems design and these are not in the new position. These are significant differences and on Mr Langarish's evidence, the duties not only represent a change of 40 to 60 per cent, but as your Honour may have adverted, one doesn't look at just the duties, one looks at the context of the new structure and the actual functions of the position and if senior functions of the position has been removed, I think an expression is used, small, but significant, then this changes the nature of a position such that it is no longer a position. It has been abolished.

PN2482

The structure, your Honour, is being implemented at the moment. It is a transitional period. Mr Ozturk acknowledged this. He said it's being implemented. The offering of the position on 19 March to Mr Ozturk, one which he never sought expression of interest in, this dispute which has taken up a lot of time and gone for a period of time and the bedding down of the new structure, as all new structures must be bedded down, I think Mr Johansen says in his evidence, well, we'll see how it works out, it's all in the lap of the gods. Firstly, we should see how it goes, but it might have led to a cross-over of responsibilities where Mr Ozturk says I am doing my same old job, after all, it's only 10 to 12 weeks of the new structure.

PN2483

I will have a little bit more to say to that, your Honour, when I skip through the issues that were raised by Ms Gale in her final submissions. I want to deal with motive very quickly, your Honour. If one looks at whether the positions have been abolished, that position has been abolished or not, whether it's similar, one looks at the evidence, but one can draw inferences from the evidence about the motive and this is not just a case of a party at an early point in the process saying my job is the same, I wish to bring it to the Commission to have the dispute determined, that is on 8 February or 13 February, Mr Ozturk says, look, you can't make me a redeployee, I've got my old job to go to and if you don't agree, we'll have a dispute and then it will come to the Commission.

PN2484

This dispute would then be, your Honour, simply a matter of is it a different position or not. We could hardly rely upon the agreement on its own, but that is not what this case is about. We've had two months since that time at which Mr Ozturk and others, Mr Ozturk and the NTEU have asserted all sorts of other things, I am a redeployee, my position is really the business analyst position, I will apply for the project manager applications position, but I don't give any consideration to the PMI position, so one looks at motive.

PN2485

The motive behind the actions of Mr Ozturk from January and the NTEU is to maintain his salary and his motor vehicle, maintain the salary differential and his motor vehicle. It is clear from the minutes of January and February that they were issues of concern to the union, nothing wrong with that, but at each step along the way is the protection of these conditions which have been pursued by the NTEU and Mr Ozturk. It wasn't a bad thing to be made a redeployee. It enables you to get some preference in obtaining other positions with the organisation.

PN2486

Under the EBA, if you are not a redeployee and you remain in your old position, you wouldn't be considered for other positions within the structure that are new, because you're in your position. Preference would have to be given to redeployees, so it suits Mr Ozturk to be a redeployee and he can have a crack at a more senior position, a CSO6 position, but that doesn't work. He then says, look, I will take the PMI job, but change a few of the duties and make me a CSO6 or maintain my salary that way.

PN2487

That is not accepted, so then when all else fails, an idea erupts, claim it is the same position or similar position and I won't be the business analyst, but it's the only way I can obtain the conditions I want to retain, so we say, your Honour, the claim is a disingenuous attempt to maintain those employment conditions. The NTEU and Mr Ozturk are using the argument that the two positions are similar for the sole purpose of protecting Mr Ozturk from the effects of the Kangan NTEU agreement, an agreement that the NTEU made, it wasn't imposed. The terms of that agreement are such that in a redeployment situation, an employee does not maintain the conditions that Mr Ozturk considers should be retained.

PN2488

Other people do not have the conditions such as a car. Other staff have had their salaries frozen in a restructure. Having not obtained the business analyst position, as a last resort a claim has been formulated which is contrary to the body of evidence that the union and Mr Ozturk created before 13 April. A lot of it the employer didn't create, it is the union that has created a rod for its own back by describing Mr Ozturk as a redeployee, by pursuing other avenues.

PN2489

Next, your Honour, the Jones v Dunkel point that the Commission should draw an adverse inference as to the failure of the NTEU to call Ms Bourke as a witness. She was the primary NTEU representative on behalf of Mr Ozturk. She was the author of emails and she was the key protagonist on behalf of the NTEU. The Commission should draw an adverse inference that her evidence would have fortified our contention in relation to an agreement being reached or reliance being placed on the representation made by the NTEU and Mr Ozturk or as to why she employed the language of redeployment and such other arguments and claiming the business analyst position was the similar position in her correspondence.

PN2490

The NTEU through Ms Bourke raised many disputes about the redeployment process, many disputes. If one looks at the correspondence in the attachments to Mr Mackay's statement, Ms Bourke says we want to notify a dispute, we're setting up a dispute committee, we're setting up another dispute committee and another one, but the one matter in her able representation of Mr Ozturk she did not raise was the matter that's now before this Commission. Your Honour, imagine if Kangan had determined that it was the same position back in February or January.

PN2491

Imagine they said, well, Mr Ozturk, we've put in a new structure and we find your position is the PMI position, so you can't be a redeployee, you won't get preference for any position in the new structure until such time as other redeployees have had an opportunity to be considered for it or expressed interest in it and, yes, when we analyse the position, we see that there are these differences, but they're not so similar, we want you to implement projects and that's sort of what you've been doing and we don't want you in the business analyst function, we don't want you to be doing cost benefit analysis, we don't want you to do systems design or have anything to do with it, you just implement the project.

PN2492

You are not going to be part of the leadership team, you will report to a middle manager, not a manager and we've got the right under the agreement to put you into that position. In fact, your Honour, one could take it a bit further as I said earlier and say that if as the union asserted, the business analyst position was the same as the SPC position, a higher classification, then as I said earlier, it could enable an employer to say, look, we've looked at the SPC position, we've switched it around a bit, we've removed the business analyst elements of it, it's the same position, it's a CSO4, it's your job, you take it.

PN2493

Imagine if that had happened, your Honour, or I will take you one step back. If Kangan had done what the union says it should have done, there would have been a dispute, because it is inevitable that if you strip the sorts of responsibilities of that position and say it is a similar position and an employee who does not want it does not have a choice, does not have access to redundancy should there be no other position, then that indeed would create a dispute. Of course, it would have prevented Mr Ozturk from seeking to get some preference for the business analyst position.

PN2494

If one puts it on that footing, your Honour, it cannot be contended that that is what the management should have done. I know the union said, well, that's what ultimately they could have done, but there should have been consultation. Even accepting that, if the management had taken the footing that it was a similar position, had lots of consultation with the union and the union said, no - sorry, I withdraw that. If the management had said that and consulted as much as was appropriate, at the end of the consultation, placing Mr Ozturk in that position would have created a different sort of dispute.

PN2495

At paragraph J, your Honour, the dispute was about the process of redeployment, not the fact of redeployment. We say that there were several disputes about how people would be placed into new positions, but the real issue was whether they were placed in those positions as suitable alternative positions or whether they were interviewed and had to apply. It is the expression of interest and the interviewing process to which the NTEU objected, but not the fact of redeployment. It wanted people to be placed into positions after redeployment, not have to apply for them.

PN2496

That was the dispute and if that was the dispute, your Honour, and if that is right, it is not open to the union to now say that the position was really similar and it should never have been in the - Mr Ozturk shouldn't have been in the redeployment process. At paragraph K, Mr Ozturk does not need a car for his job. Indeed, he didn't need it for his old job, but I raise this point, your Honour, because if he did need his car for his old job, that might be a different issue. He doesn't need it. He lives five minutes from Kangan. One might have some sympathy for him as might the Institute if there was different factors at play.

PN2497

He gave it up for 18 months when he was a CSO6. Your Honour, that should be CSO5 in paragraph 24, not CO6. He gave it up without any additional remuneration. He was in a more senior position, but he didn't get any more money. His remuneration will be frozen, that which he is on at the moment, in accordance with the Kangan EBA and I will come to the discussion that you had with Ms Gale about the operation of clause 22 and salary in a moment and then there's my conclusion, your Honour, but I won't read that. Your Honour, if I could just move through some of the matters that were raised by Ms Gale.

PN2498

THE VICE PRESIDENT: Just the conclusions, before you leave them, the first sentence is essentially the jurisdictional argument. The alternative is submissions on the merits and the alternative bases, A, B and C are alternatives. I need only find one of those in order to conclude the matter in your client's favour, don't I, or are they all required?

PN2499

MR RUSKIN: They are not all required. You only require C, but if you accept A and B, then it almost follows that C must occur. I don't say that they all must be found. They're not necessarily alternatives. C on its own is the end of the matter. A goes to the fact that the positions are different, because of the conduct of the union and B is in the same boat. A and B assist you, as well as the evidence about the differences.

PN2500

THE VICE PRESIDENT: But they're not essential to a finding in line with C?

PN2501

MR RUSKIN: No, your Honour. C can stand on its own without that evidence. As I said, your Honour, if this case had been brought at the appropriate time to protest, the case would be whether the job is different. It's very much clouded by what went on for two months.

PN2502

THE VICE PRESIDENT: It was probably a pretty cloudy time for everybody, I must say, that intervening period.

PN2503

MR RUSKIN: It was a cloudy time, your Honour, but it was not a cloudy time, it was not such a cloudy time that the union could not have advanced the argument they put on 13 April. They were well able to argue many things. They were not caught up in something else. The NTEU were very active at Kangan during the time, very willing to represent their members, spent a lot of time representing Mr Ozturk, but they have never raised this. Just going through the evidence of Ms Gale, she talks about the restructure being under wraps. Well, she also concedes there were five consultative committee meetings and the issue of consultation is not relevant. There was consultation after 21 December.

PN2504

There must be a point in time when you announce the proposed structure. There were questions about the structure at that meeting. There were opportunities for consultation. Staff could go to management and make inquiries and request things which is what Mr Natschuv did in relation to the network analyst position. It was not fixed in time, it was not the structure that would not change. There were several changes to it as evident from the documentation Mr Langarish provides and in the case of Mr Natschuv, he requested, not with the union involved, he requested that they should re-look at the structure and they did and they changed it and they kept the position as a CSO6 I believe, so the suggestion that this was a process that was predetermined and lacking in consultation is quite the opposite.

PN2505

Ms Gale talks about the fact that Mr Langarish was not familiar with the legal requirements of position descriptions. Well, your Honour, I have something to admit - neither do I. There are no such things as legal requirements for the creation of position descriptions. Position descriptions are position descriptions. There is no legal requirement for how they look and I don't understand the point. Ms Gale makes the point that Mr Natschuv was exempt from the redeployment process and indeed he was. He was exempt from it because the structure was changed and how did he become exempt from the redeployment process?

PN2506

He went to management and they changed it. Mr Ozturk did not go to management and he should have. One is placed in a position by redeployment. If you are in your old job, you're not placed anywhere, you just stay there. There seems to be a discussion about what peripheral and incidental means, as if a position might be a different position in a new structure so that you're not in your old position, but somehow, because the position is not peripheral - because the position is incidental or peripheral, you are placed into that position.

PN2507

There's no mechanism under the agreement to be placed into any other position but your own other than by redeployment, so either as we said in our opening submissions, either the position is no longer required or it is required, so it's a two-step, not a three-step process and the purpose of the reference to peripheral and incidental is to enable an employee not to be declared redundant in a position simply because the changes are peripheral and incidental, but if they are more than that, then the position is no longer required.

PN2508

I think I have made submissions, your Honour, about this notion that the SPC position has become like an amoeba. An amoeba splits I think into two parts. I think it can perhaps split into more, but somehow the SPC position has split into three different positions and all of them are similar and Mr Ozturk has the choice of which one he is to be placed into. It is not possible, your Honour, on the union's contention for the SPC position to be similar to three positions in the new structure, one focused on infrastructure, one focused on applications for project manager and one a business analyst position of a different classification.

PN2509

That is an utter flaw in the argument and fortifies the view that if it is the case that there are these parallels with the three positions, it just fortifies the view that the initial position is no longer required, because it has changed such that three new positions have been created. How do you get placed, your Honour, if it is the same position, how do you get placed into the CSO5 and the CSO6 position? How could that be? How would you be placed into them? Who would decide it? It's just impossible to understand, other than to accept that the first position was abolished, no longer required.

PN2510

THE VICE PRESIDENT: Wouldn't it be more plausible for the possibility that a position at one particular level, say a CSO5, could be replaced by two positions and the two positions might involve a focus of one part of the role, but still some overlap, not an exclusive operation in one part of the role and perhaps through greater work load or something of that nature, greater need for those particular things, that both of those positions are similar to the previous role?

PN2511

MR RUSKIN: Well, I think it's possible to have a position and create another position which is the same as that position. If you've got a security guard, you can have another security guard, your Honour, but if you have a security guard who has certain responsibilities and you split the job into two, it's difficult to say that it is the same position. Certainly the person shouldn't be made redundant, because they are suitable to perform either job, but I think it's still the case that the position that has been split is no longer required.

PN2512

THE VICE PRESIDENT: What if you say a security guard's role is to sit at a gatehouse and also to wander around the factory and it's determined that the size of the role is such that there should be two people and one stays at the front gate, but occasionally goes around the factory and the other walks around the factory, but occasionally sits at the gate? It's the same, the duties are of the same level as it were. There's perhaps a little focus and a difference in terms of geography, but not exclusively. It could be that that previous role is still required in effect. In fact, there are two roles when previously there was one in that sense.

PN2513

MR RUSKIN: Well, it may not be, your Honour, the nature of the duties may not have changed at all. It's just that where you go to do your duties would be different. In that case, it might not be a different position at all.

PN2514

THE VICE PRESIDENT: Yes, well, in that particular case and it may be that both positions are in essence the same nature, the same role as the previous role and there would be in effect under these types of provisions no application of redeployment because there is an ongoing role, being one role or the other in that situation.

PN2515

MR RUSKIN: It could be that when one looks at it, one of the positions is substantially the same as the other position and what you've really done is not split the job, but created a second position, your Honour. That is not the case here, but, yes, it's theoretically possible, but I think the outcome would be that you've actually not necessarily changed the first position, but added another similar position.

PN2516

THE VICE PRESIDENT: Your submission is as soon as you start having a mix or a change to the functions of a role which are at a different level, you confine the lower level functions to one role and expand the higher level roles or something of that nature, then necessarily you're looking at different roles.

PN2517

MR RUSKIN: That is certainly my submission, your Honour, as well as the fact that the PMI position is different from the project manager applications position. That makes it a different position which is not the same as the security guard, one is going to stay at the gate and one is going to walk around, taking away applications from - if the position was just called project manager and it did infrastructure and application, nothing else and you said the project manager applications and infrastructure position is too big for one person, we will create two positions, that would be splitting the job and arguably it would be a different position and I don't think it's the same as the security guard in the example we've discussed, but here we have a SPC position, a senior project co-ordinator position that had business analyst and cost benefits analysis and leadership functions, that position has been - elements have gone into the applications role, into the infrastructure, into the new position of infrastructure and other positions within the structure, so I think that makes it a different position, but I say, your Honour, it can't be all three. It couldn't be all three even if the business analyst position was a CSO5. If, indeed, it was a CSO5, then the argument about different classifications wouldn't pertain, but the fundamental change in the position would still be our submission.

PN2518

THE VICE PRESIDENT: Which takes you back to the test of the fundamental purpose of the role and the security guard role might be the same purpose even though there's a geographic difference, it's the same purpose.

PN2519

MR RUSKIN: Exactly, your Honour.

PN2520

THE VICE PRESIDENT: Whereas if there's a clearly different purpose with different roles in a new structure, then it's more likely to sustain a position that it is a new role and the old role is no longer required.

PN2521

MR RUSKIN: Yes, your Honour. Your Honour, there was a discussion about the operation of clause 33 - sorry, 22. That discussion was about the issue of salary and I would just like to make some points about it, 22.12:

PN2522

Any suitable alternative positions chosen by the employer will be of similar salary.

PN2523

Well, the offer made to Mr Ozturk was the same salary that was offered. That salary has been frozen under the second part of 22.12, so there's no issue, not that the case is about this, your Honour. This case is about whether the job is different, not whether there's been a breach of the EBA in relation to the offer or we hope that won't be the next case. Any suitable alternative position will be of similar salary, that's been met and clearly the agreement contemplates that there will be - a salary might not be maintained because of the salary maintenance provisions, so there's no doubt, your Honour, that the position offered by the employer is consistent with 22.12.

PN2524

The only protection and a very good protection is that the salary will be similar. There's no reference to conditions in the agreement. This is agreement made by the NTEU and it was concerned to freeze salaries, to ensure that people didn't lose out on salary and that's a laudable aim and they've achieved it, but the agreement doesn't deal with cars. We do not accept that 22.5 means that alternative positions made available to staff where possible be at least equal to terms of salary, time fraction, personal and professional status and classification, means that a person who has a car is entitled to retain it where possible, because that goes to his personal status.

PN2525

I don't think a car gives personal status, your Honour, or professional status and it is not possible in any event to continue to provide him with a car because of the inconsistencies that would create within the organisation. Mr Ozturk would now be the only person who did not have a car, other than the managers and general managers in IS&S. If Mr Ozturk retains his car, he would be the only person in IS&S to have a car, but for Mr Langarish. The issue of the contract of employment was raised, your Honour. This agreement provides that there will be an offer made.

PN2526

As Ms Gale says, the employment relationship is not ended and, indeed, the employment relationship has not ended with Mr Ozturk, but there's a new contract of employment. Mr Ozturk had a new contract of employment when he took an acting position as a CSO6. The old contract was suspended and he went on to another contract. When that contract came to an end, he returned to his SPC contract. With the abolition of Mr Ozturk's position, he either is retrenched with or without redundancy money or he is offered a new position and with a new position comes new conditions.

PN2527

One of the conditions that can't be changed is salary, time fraction and where possible classification, but it is a different contract of employment and Mr Ozturk has a choice. I am not sure if he has exercised it, but his choice is does he want the job, the new contract of employment, with the terms contained in it or not, but there's no issue that there's some breach of the contract, not that that is a matter before this Commission as such or, indeed, a breach of this agreement if it is a new position if the car is not contained in the package.

PN2528

THE VICE PRESIDENT: Just remind me, what level was the SPC?

PN2529

MR RUSKIN: CSO5.

PN2530

THE VICE PRESIDENT: And the new role that has been offered is CSO5 and therefore similar salary, but Mr Ozturk was paid at the top of CSO6.

PN2531

MR RUSKIN: He was paid a salary that was well above CSO5 and he wasn't paid a rate from the salary structure in CSO6, but it was, if you look at it, it was a similar rate of pay to near the top of CSO6, but it wasn't tied to CSO6.

PN2532

THE VICE PRESIDENT: So you say you don't look at the actual salary, you look at the salary of the relevant positions?

PN2533

MR RUSKIN: I think under the agreement you're obligated to maintain the person's - to offer the same salary and he was, so that if his salary was $7000 above the CSO5 salaries in the EBA, I think this agreement means he is to be offered his old salary, so if the top of CSO5 was 64,000, Mr Ozturk earned 71,000.

PN2534

THE VICE PRESIDENT: Yes, and that's the second sentence of clause 22.12. The first sentence is an obligation to offer a position of a similar salary and that's salaries attaching to the position, it's not the individual.

PN2535

MR RUSKIN: I am not sure about that, your Honour. I think it might actually be a reference to the - well, it's hard to read it, but it's possible that it could be - if Mr Ozturk was offered CSO4, that is a lower classification, because it wasn't possible to offer him a CSO5, I think that he is entitled to retain that to keep that particular salary. That is at least how the Institute has read it.

PN2536

THE VICE PRESIDENT: I certainly can see that from the second sentence.

PN2537

MR RUSKIN: Yes.

PN2538

THE VICE PRESIDENT: I am not too sure that is the effect of the first sentence.

PN2539

MR RUSKIN: Yes, it could be, sir, that the salary means just the classification attached to the salary.

PN2540

THE VICE PRESIDENT: As I understand the first sentence, it is an obligation actually for a suitable alternative position to be of a similar salary, not a lower salary to the position where the new position salary differs - well, maybe that is - it's still similar, not substantially different, not a significantly lower level, but if it differs in any way, such as in this case with the actual salary of the employee, then the employee's salary is retained at the higher salary.

PN2541

MR RUSKIN: Yes. Yes, the second sentence is clearly doing that and, in fact, by doing so it's clear that you don't maintain the salary differential. The salary is frozen at whatever it was until there is catch-up.

PN2542

THE VICE PRESIDENT: Yes.

PN2543

MR RUSKIN: Mr Ozturk was in a position with his salary which was $7000 or so different from CSO5, continued to increase whenever there was an EBA increase, but that is not provided for in this agreement and it's a different contractual offer and he has a choice of accepting it.

PN2544

THE VICE PRESIDENT: You say you're not sure whether he has or not.

PN2545

MR RUSKIN: Well, your Honour, you either accept an offer or you don't. Mr Ozturk was offered a position on 19 March. One of the terms of the offer was you don't retain your car and your salary will be frozen. That was the offer. It was the most viable option that the employer chose to offer, offered it. Now, when an offer is made, you either accept it or you reject it and put an alternative. I think Kangan and the NTEU and Mr Ozturk have agreed that that issue is suspended pending the outcome of this case and if your Honour dismisses the application, perhaps it would be prudent for Kangan to assume that Mr Ozturk then accepts the offer, because he said it was subject to the dispute, or whether perhaps he should let the Institute know whether he doesn't and if he doesn't accept the offer, then 22.16 or 22.17 will take effect. It might be a moot point, your Honour.

PN2546

THE VICE PRESIDENT: But that requires a positive step by the employee who does not accept the offer or it might involve a failure to accept.

PN2547

MR RUSKIN: Yes, your Honour, might involve a failure to accept, so I think that point is suspended. Your Honour, there was submissions by Ms Gale about the witness statements of Mr Johansen and Ms Denton. Now, the evidence of Mr Johansen and Ms Denton in relation to their expertise is that they're not experts and Ms Denton wasn't cross-examined and we were given that opportunity, I accept that, but the fact is that Ms Denton is an expert in points factor evaluation and she says as much.

PN2548

She doesn't produce any evidence or any statement or any assertion that her expertise is in understanding the differences in actual positions, so we say, your Honour, that in relation to her evidence, it should be disregarded, because if it is expert evidence, she professes no qualifications in being an expert in understanding differences in positions. She points factor evaluates positions and the same with Mr Johansen. As Mr Johansen agreed, points factor evaluation simply looks at the skills of a position and the like and ultimately one can be an engineer and a scientist with the same points factor evaluation.

PN2549

THE VICE PRESIDENT: Is that the effect of paragraph 1 of Ms Denton's statement?

PN2550

MR RUSKIN: Classification and job evaluation, points factor evaluation, that's how I read it, your Honour.

PN2551

THE VICE PRESIDENT:

PN2552

I am an expert in the classification of positions.

PN2553

MR RUSKIN: Yes, points factor evaluation. Classification is not whether the jobs are the same, but whether they're classified correctly. Is the scientist a 5 or a 4, that is my expertise. It is not her expertise to say the scientist is the same position as the engineer. She looks at the points that you evaluate to positions. The PMI position, your Honour, could have the same points as the SPC position based on the skills, et cetera. Indeed, perhaps it does, but that's got nothing to do with whether one job is materially different from another.

PN2554

THE VICE PRESIDENT: In order to apply a points factor analysis, you need to be able to compare requirements of different roles.

PN2555

MR RUSKIN: Yes, you do, your Honour, but the end result could be that they are similarly points factor evaluated, but different.

PN2556

THE VICE PRESIDENT: Yes, so you're looking at the nature of the role and how it should be classified in accordance with a particular system. It might be one that applies in the tertiary education sector or it might be a HAY system or something, whatever the system is, but in order to do that you need to understand the nature of the role and the duties within it, I would have thought.

PN2557

MR RUSKIN: Well, I think you have to understand the value you attach to functions, not whether the functions are different. In addition, I don’t think that she gives evidence of her expertise in being able to look at positions and determine whether they’re the same in accordance with a redundancy test or the like.

PN2558

THE VICE PRESIDENT: But if you’re looking at functions and you’re analysing the functions or the value to be attached to particular functions you might say function X should be within CSO5 and function Y should be CSO4. It’s actually evaluating each of the functions.

PN2559

MR RUSKIN: You’re determining whether the position, whether the functions of the position, have the same value. You might say business elements function is worth X number of points and so does cost benefit analysis and so does cost benefit analysis and so does - in fact there’s project manager and there’s this value as to supervisory responsibility in a particular position and there’s that value. But that doesn’t say whether that’s a different job, a different function from another function, only whether the value attached to it is different.

PN2560

THE VICE PRESIDENT: Right. I have some difficulty understanding how someone could be an expert in that function and not be in a position to determine whether roles are different.

PN2561

MR RUSKIN: Well, that’s not the job that Ms Denton performs when she is a member of a classification process. She’s given no evidence that she’s been involved, given any expertise in whether a position is redundant, she’s given any evidence in such a case, whether she has any expertise in it. She doesn’t look at the same thing, your Honour.

PN2562

THE VICE PRESIDENT: Well, she says she does. The factors to apply in the context of translations with structures and job redesign.

PN2563

MR RUSKIN: She didn’t - she doesn’t have expertise in IT, she doesn’t assert that she does and that will be a factor in looking at the different roles within the two positions. She points back to evaluate the position. That she may have done something else in this exercise, your Honour, and it appears she did, but her primary expertise is evaluating the position, not whether it’s different. She doesn’t get an engineer position told, she might be said is that a five, is that scientist position a five? But her task would not be to say how different is the responsibilities such that it’s a different position.

PN2564

She might be able to say the function of the scientist is a 6, it gives you this number, this part of it gives you this number of points, but not to compare them. That’s not her task. That’s what we assert, your Honour. Mr Langarish is in a better position to understand the two roles within IT than Ms Denton in any event. I dealt with the roll-out projects. I won’t return to that. Ms Gale made submissions about her cross-examination of Mr Langarish in terms of the differences as to whether the certain responsibilities in the SPC position was still in the PMI position and in that analysis she never took Mr Langarish to 46.1 of his statement which is the key difference in the responsibilities.

PN2565

If one looks at Mr Langarish’s witness statement at 46 there was discussion with Mr Langarish about 46.3, I think, onward but not 46.1 which is the key difference and it’s noteworthy she didn’t. If one goes to attachment 13 of Mr Langarish’s statement which Ms Gale took you to this morning the first responsibility in that says:

PN2566

Functions and responsibility to remove new function not included in the PMI position.

PN2567

I think Ms Gale asserted that the first dot point, Design Develop in the second column:

PN2568

New function not included in the PMI position, undertake systems, design, develop, construct and commission software systems.

PN2569

That’s not what the PMI position requires. It does not design, develop, construct and commission. It does not design and develop. Now, Ms Gale concedes of what the differences are in the positions. She says extent of leadership, I think she said preparation and scoping removed. Well, I can’t agree with her about that, but that’s an important change in the position in preparation. Scoping is removed from the functions of the position in relation to an overall project. Mr Ozturk’s project management functions are limited to implementation, not preparation and scoping as it was.

PN2570

There was some submissions by Ms Gale about there were certain functions that Mr Langarish asked Mr Ozturk not to do anymore back in January in terms of dealing with senior management. Now, we say two things about that, your Honour. Firstly there’s nothing that stops a manager in relation to an existing position requiring an employee not to perform an element of it. That’s this not ..... that doesn’t mean that you’ve changed the position, you just don’t require them for a certain time to perform a particular part of it. And that’s what happened in January.

PN2571

Perhaps it was also in anticipation of how the structure would work that
Mr Langarish made that statement, but it doesn’t bear upon whether the PMI or the SPC position descriptions are different. I think that Ms Gale said that
Mr Ozturk - indeed she did - that Mr Ozturk claims the leadership role is unchanged, he does say that. Well, there’s substantial evidence from
Mr Langarish about that and his evidence should be preferred over Mr Ozturk.
Mr Ozturk was not a forthcoming witness in these proceedings and if one looks at particularly as an example 644 to 648 of the proceedings there’s a question about the credit of Mr Ozturk given he couldn’t answer a simple question about whether the minutes were agreed or not.

PN2572

We say that the evidence of Mr Ozturk is not to be preferred to Mr Langarish when it comes to whether the positions are different. If I can move to another point, your Honour. Ms Gale talks about one looks at the PMI position in the real world, not in some other world. Well, when it comes to the real world it is from another world that Mr Langarish comes to create a structure. Mr Ozturk does not come from another world, so I’m not sure that one can assert that Mr Langarish somehow doesn’t come from a real world. I think he is in a better position to say how the structure should operate. And if this issue is about how will it operate in practice as opposed to on paper, then I think one must give preference to the orchestra leader, that is Mr Langarish who has created this structure and has a clear vision as to how it will operate.

PN2573

And if one goes beyond the position descriptions, goes beyond the functions and say but will it be any different, how will it actually work, we have two things to say. One it hasn’t operated long enough and secondly Mr Langarish’s evidence and managerial prerogative should be favoured. Just harp on the point that
Ms Gale talks about offering a suitable alternative position as a CSO6 and that again is language that applies to a redeployee and not a person whose position is no longer required. Sorry, not about a person whose position is still required. I think I’ve dealt with the issue about the offer of employment and how that new offer operates, so I won’t go back to that.

PN2574

Ms Gale says that one should treat the SPC and PMI roles as being part of an evolution that the SPC job has evolved into a PMI job. Well, your Honour, it is not evolutionary to remove the functions of the position which are described at 46.1 of Mr Langarish’s statement. It is dramatic. It is not evolutionary. When Mr Ozturk applied for the PMA position - sorry. When he expressed interest in the PMA position, which I think the union is now claiming is his old position as well as the other two positions, his submissions never said that’s my old job, just to reinforce that view as to the representations that were made or not made, the reliance placed on his representations.

PN2575

Now, lastly I deal with Mr Mackay who was an honest witness, your Honour. He did agree when he identified that his statement could have been expressed differently. He has 46 years in industrial relations and I think the import of his evidence which clearly came through was that we made an agreement and we expected the unions to stick to it and it was very important for the institute that when one phase was agreed that one moves on to the next phase and not welch on an agreement. And I think that it was abundantly clear as an experienced IR and HR practitioner that this case denotes the fact that that reliance appears now to be misplaced and that there was no doubt that the agreement or representation was made by the union. And it can’t now go back and undo it and disembowel the arrangements which are in place and create possible industrial disturbance.

PN2576

Your Honour, finally you talked about if someone’s on a train maybe you can get off it. Well, your Honour, this train trip had several stages and each stage was ticked off and the first train trip was to determine whether redeployment had been reached and that was the end of the trip. So the union isn’t still on the same train saying well, the same journey and we want to question part of the journey. We say there are particular phases in the EBA and the first journey was finished and done with and we are on the next phase of the journey and you can’t go and unpick the first journey, which is what this case is about.

PN2577

THE VICE PRESIDENT: Do you say that there was a notice at the first train station that once you get on this train you can’t get off at another station and come back?

PN2578

MR RUSKIN: Once you’re going in an particular direction, once you have an agreement and you’re moving onto the second journey which has been reliant on how you got there on the first journey, you can’t go back and say the first journey was wrong. No, you can’t. Not when you say it, not just after the journey finishes, but way after.

PN2579

THE VICE PRESIDENT: My question was, was that made clear to everybody?

PN2580

MR RUSKIN: Well, the agreement makes it clear, your Honour.

PN2581

THE VICE PRESIDENT: At the meeting? Was it made clear that you can’t go back? Once you go forward on redeployment there’s no way you can challenge whether the position is still required or not? Was it made clear that this is a permanent position you’re adopting in going into the redeployment area? Because the practice of changing a role and adding someone else later actually tells against that proposition.

PN2582

MR RUSKIN: Where it does so by agreement, your Honour, but in this case there was no - where someone requests it, but no one requested it. One person was deemed to be exempt from it, one person didn’t say actually I’m not a redeployee, Mr Natschuv said I think you should change the structure such that I won’t become a redeployee. That’s quite a different thing. Mr Natschuv never said don’t make me a redeployee because you got it wrong.

PN2583

THE VICE PRESIDENT: And what was Mr Johansen referring to when he said he tried to get a couple of others changed unsuccessfully?

PN2584

MR RUSKIN: Well, that might be that a couple of others sought to have the duties and responsibilities changed. We don’t know, your Honour. But in the case of Mr Natschuv if it’s the same that was in that case, that he wanted to change the duties, not claim his position is the same. And that’s quite a different thing from the parties agreeing to a particular arrangement, moving to the next phase of it and going well down the track in other directions and then when all else fails claim that really all along it was the same position, we just didn’t tell you. As I mentioned, your Honour, PN75 of Mr Johansen’s statement:

PN2585

But you agree it should be started?---We wanted to get it over and done with and sorted out people in their positions and functions. We wanted to get the redeployment process started.

PN2586

And the redeployment process was started and there was no hitch in the fact of being in the redeployment process. No one, once the redeployment process started, said they should be placed into their same or similar position and that the agreement is wrong, that the arrangements is wrong, or there’s been an error. No one claimed that. Mr Natschuv did not claim that. The only person that now claims it is Mr Ozturk. So I go back to this initial point, your Honour, about whether it is appropriate to disturb an arrangement which was entered into freely and which stuck for two months.

PN2587

Mr Ozturk didn’t bring his claim on 9 February, he brought it on 13 April when he claimed everything else but that. And that is what we say is something which the Commission should not disturb. Thank you, your Honour.

PN2588

THE VICE PRESIDENT: Thank you, Mr Ruskin. Ms Gale.

PN2589

MS GALE: Thank you, your Honour. The logic of Mr Ruskin’s proposition, we’ll take a train journey and turn it into a train wreck. The argument that he has put forward that I think is summarised in two ways in the conclusion. The first being that the application should be dismissed on the basis that it doesn’t give rise to a dispute I understand to be founded on the proposition of estoppel and the second way of putting the same argument is there’s a question of merit that the union’s conduct is such that we can’t now claim that it was the same or a similar position or that Mr Ozturk was not in the redeployment process.

PN2590

In relation to the estoppel argument, again without going to the detail of the authorities that Mr Ruskin has provided, looking at the key elements that he drew from the Thompson decision, that there has to be a representation intended to induce, that there has to be an act or omission on the other party, by the other party resulting from that representation and that detriment must flow. This hinges largely on the proposition that there was an agreement on 8 February. I have gone to that in some detail. We say that there was no representation by the union that the union agreed that all positions should be declared surplus to requirement other than the position of Mr Hogan.

PN2591

There is no express agreement of that point. There is strong evidence to the contrary and there is nothing on the face of the document itself which leads to that conclusion. In fact on the face of the document one reaches quite a different conclusion and I went to that earlier and I don’t think it needs to be revisited in detail. There was no inaction by the union, there was no pattern of behaviour after the meeting of the 8th which leads to a conclusion that the union was acting on the assumption that there was an agreement in place relating to the redeployment process, at least not an agreement of the character contended by
Mr Ruskin.

PN2592

We do accept that there was an agreement of the character set out in the minutes of 8 February and we say they do not support the reading that has been proposed. That agreement set out in the minutes of 8 February was very quickly breached by the employer. That agreement expressly states, and there’s no imputation or requirement to refer to subsequent conduct, to understand the meaning of the words that state that there will be no action on the CSO5 positions until there has been further discussion between the parties about the process by which that will occur. And yet before any further discussion between the parties the institute issued notices of redundancy to CSO5 employees.

PN2593

The agreement that was reached at that meeting was breached and it was breached by the employer. We say that in relation to any consideration of an equitable relief the employer certainly doesn’t come to the issue with clean hands. What actually happened at that meeting as has been attested by the witnesses is that the employer put the position that it was going to proceed with implementing the restructure. It was willing to talk to the union about how. The union representatives on that committee have told us that they argued time and again for a matching exercise for a process which involved some or all of the staff being moved directly into the new structure without the requirement for the redeployment process proposed by the employer.

PN2594

At the meeting on 8 February there’s an agreement that the redeployment process will be as per clause 22. There is agreement about the redeployment process. It’s been suggested that that is the same thing as agreement that positions will be redeployed or will be declared surplus to requirement. The redeployment process at clause 22 starts with the proposition that where it is determined that some positions are no longer required then all that follows, follows. An agreement to commence that process at the worst construction is a recognition that the employer has decided that some positions are surplus to requirements.

PN2595

There is no way to read it as saying that all positions bar one are surplus to requirements. Mr Johansen at paragraphs 56 to 59 of the transcript we were taken to and it was suggested that this showed the agreement from 8 February. In fact when the straight question was put to Mr Johansen at paragraph 55:

PN2596

There was an agreement reached, wasn’t there, as to which jobs would be exempt from the redeployment process, is that right?---No, that’s not correct.

PN2597

That’s not correct?---The agreement reached was that we would have a joint presentation to staff about what the situation was. What was left out of that statement was the fact that the union did not agree to the process that was being followed.

PN2598

The imputation that Mr Ruskin has put on that evidence we say is not supported by what is actually said. At paragraph 85 we were taken to Mr Johansen agreeing that there is no other disagreement reflected in those minutes other than the income maintenance issue at paragraph 6. There is no other disagreement reflected in those minutes. There’s no other agreement reflected in those minutes either. Mr Johansen says nothing there that supports the conclusion that there was no other disagreement. He has already said there was other disagreement and that it’s not reflected in the minutes.

PN2599

At paragraph 94 Mr Johansen points to the fact that he sought to negotiate or to promote exemptions for additional people and that was unsuccessful. The institute says that there was no action by the union which indicated it was not satisfied with the issuing of redundancy notices, and yet there is evidence that the union, through one of its workplace representatives was actively trying to have people moved into the new structure without redundancies, without redeployment. Mr Ruskin has placed considerable consequence on the fact that during the period immediately after the issuing of the redundancy notice to Mr Ozturk and others there is some correspondence, some from Mr Ozturk and some from the union, which refers to redundancy, refers to redeployment and that this is evidence that the union agreed and was acting pursuant to an agreement in relation to redundancy.

PN2600

What we say is that this is evidence that the employer had issued redundancy notices, had advised its employees that they were in a redeployment process and had given them some very tight timelines within which to respond to that advice. The employer issued the redundancy notices. That was a unilateral action of the employer. It was not the result of an agreement with the union about the redundancy process. The evidence shows that the union was consistently challenging the use of the redeployment process in relation to the restructure.

PN2601

There is no naturally made agreement between the parties for the Commission to undo, not is the union seeking to recant on any agreement now. There is not agreement. The employer declared people redundant, declared positions redundant, and advised employees that they were in a redeployment process and the union assisted its members in navigating that process. The union’s conduct throughout the period clearly raised concerns about the overall process and those concerns are inconsistent with the proposition that there was an agreement about process or an agreement about redeployment.

PN2602

Mr Ruskin pointed to the assertion about a meeting on 26 March where it was asserted that the union sought variations in the PMI position in order to enable it to retain the salary. That is not consistent with the evidence that Mr Ozturk gave. It is consistent with the proposition, the evidence that Mr Ozturk gave was that those negotiations were about reflecting his skills and experience and providing a career path, that it was not about some artifice to protect his salary. The union throughout has been looking for a practical solution to a dispute. It was suggested that our motivation in bringing this dispute is salary.

PN2603

I would have to say that we do have a percentage based membership fee, but the difference between Mr Ozturk on a salary maintenance arrangement and
Mr Ozturk on a continually increasing level 6 salary is not such a difference in the membership fee that we are motivated by that. We are actually motivated by protecting our members against unfair outcomes resulting from the failure to properly apply the agreement. The proposition that having dealt with the employer’s announcement of positions being surplus to requirements at face value puts us in a position where we can never challenge that decision is absurd.

PN2604

It is an absurd proposition to introduce into the industrial environment. To say that when an employer declares a person redundant and the union represents the employee in that redundancy process and later becomes aware of a flaw in the initial declaration they should do nothing about it, or are estopped from doing anything about it, is absurd. If Myers announce that they are closing their city store and declare several hundred stuff to be surplus to requirements, several hundred positions in the city store to be surplus to requirements, and their union engages actively with the process of redeployment to other stores, of looking at redundancy packages, of finding out comes for employees in that process and then it emerges that in fact Myers is not closing its city store but it is an artifice that the original declaration that those positions are surplus to requirements was not properly made, it is absolutely absurd to suggest that the union should be estopped from challenging that on the basis that it has begun to represent its members in the context of a purported redeployment process.

PN2605

To say that we should be estopped from raising a dispute because we took management at their word until we were part way through the process is a proposition that actually will undermine industrial common sense. There is no representation by the union to Kangan that can support the proposition that we agreed that any particular position was properly declared surplus to requirement. There is no representation that supports the proposition that we agreed that all positions are declared surplus to requirement. We acted as any union would on the basis of the information available to us.

PN2606

In the practical world of industrial disputes if we have to reserve our position on all technical issues and all potential breaches that we might not yet have come across the evidence for, then that simply will be an impediment to progressing and circling industrial disputes in a practical manner and it will impose an oppressive standard on local workplace representatives who often carry the burden of these negotiations. The minutes of the meeting of 8 February, as I said, don’t stand the construction that Mr Ruskin seeks to put on them. Beyond that they are not a contract. They are a record of a stage in an ongoing process of negotiation, consultation and industrial reality.

PN2607

They are a record of a stage in that process which the employer itself has repudiated through its actions. Mr Ruskin has suggested, he has submitted at paragraph 10 of his outline final submissions, that at all times prior to 13 April the NTEU and Mr Ozturk acted as though the old SPC position and the new PMI position are different. Given that Mr Ozturk and the NTEU had made no comment on the PMI position until it was offered to Mr Ozturk it is impossible to conclude that we acted as though they were different, the same or anything else up until the time that an offer of that position was made to Mr Ozturk.

PN2608

THE VICE PRESIDENT: I think the inference of the submission is that if they were thought to be the same job it would have been claimed that they were the same job much earlier.

PN2609

MS GALE: That may be the inference, your Honour. It’s certainly not the underlying fact that’s asserted. The proposition that the union or Mr Ozturk should from the outset have said this is the same job as my job is based on a different world than that which actually existed. We can come back to
Mr Ruskin’s real world. The employer issued advice to its employees, including Mr Ozturk, that his position was surplus to requirements. Mr Ozturk was entitled to take that advice at face value. Mr Ozturk was told he had a very short period, three days I believe, to lodge expressions of interest for other positions, that if he didn’t land another position that he was in a 12 week process which would see him out the door.

PN2610

His focus, quite understandably, was on that process. There is no evidence that at that stage he questioned whether his position was surplus to requirements. He’d been told that it was. He looked, he applied for other positions. Some of those positions, both of the positions he expressed interest in, ought to have been positions with which he had been through a matching process. He was agitating that there should be a matching process. He was agitating for that as a general entitlement for all staff. He was not at that stage attempting to conduct a matching process in relation to his own position.

PN2611

When he was not considered for the business analyst position he focused on that position, he understood he had entered into an agreement that the level 6 positions would be dealt with first, he understood that that position would be dealt with first and he sought to find a practical outcome to his circumstances and to the dispute. When that failed in relation to the level 6 position his attention turned to the level 5 positions. There were before the restructure two project managers. If you turn to Mr Langarish’s witness statement R1, and attachment 4 of that witness statement, in that attachment it starts with an email exchange and then there is a memorandum headed Without Prejudice which if you turn to page 5 of 8 of that memorandum you can see the old ISS organisational plan.

PN2612

In that plan in the third layer down, reading from the left, the first two positions are senior project co-ordinator. There were two senior project co-ordinator positions, one occupied by Jerry and one by Gani. Both of those positions reported, if you follow the line up, to the centralised infrastructure co-ordinator position. That position, you will see from the note there, was vacant, as a result of which those positions were not organised, not according to the organisational chart, but in practice reporting directly to the manager. Those two positions were the two people who were considered for the project manager, or two of the people considered for the project manager applications position and the person there labelled as Jerry was successful in that position and Mr Ozturk was offered the second project manager position, that of infrastructure.

PN2613

We say that it supports our contention that without even drawing up an application or an expression of interest for the position the institute could feel sanguine about moving Mr Ozturk into that position on the basis of presumably what they knew of his existing work as senior project co-ordinator and what he had put forward in relation to project manager applications. Those two positions were substantially similar to three positions in the new structure. The approach taken by the union throughout has not been to cause disruption or to stand on technical niceties.

PN2614

Our approach throughout the process has been to try to find a practical solution, a practical solution that has found homes for people in the new structure without unfairness or arbitrary results. If the train on its way to redeployment had resulted in a fair outcome that would not, in our view, have been in strict compliance with the agreement, but it would have been sufficient to resolve this dispute in practical terms. It did not result in a fair outcome. The dispute was raised from early in the process and was vigorously and continuously agitated. It’s been said that the position can’t be similar to both the business analyst and the PMI position and that certainly it can’t amoebalike turn into three positions.

PN2615

It’s important to realise that there were two project managers that have turned into two project managers and a significant proportion of the business analyst job. We say the business analyst job is one which falls into the group of positions to which Mr Ozturk should have been moved without redeployment because it is sufficiently similar and it includes some of the same or similar duties in a way which falls within what in this agreement is a broad scope of a definition of redeployment, a scope which does not allow redeployment where the position is incidental or peripheral to the original position.

PN2616

We say that the meaning of incident and peripheral applies to the position and the relationship between the positions. It is not, as has been suggested, an expression that the only changes that can occur before a job falls into the redeployment group are incidental and peripheral changes to the original position. That is not what it says and that is not what the parties have agreed to. We say that the business analyst position is incidental or peripheral. We say that the two project manager positions are more than incidental or peripheral. They are in fact substantially similar, if not the same, as the original two project manager positions.

PN2617

And in that context the example that your Honour gave of the security guards we say is a fairly direct parallel with the project manage positions. In this case, though, there were two before the restructure and two after the restructure. Rather than them both sitting at the front gate for half the day and wandering the worksite for the other half of the day, the job has now been divided in such a way that one spends most of their time, but not quite all, at the gate and the other most of their time, but not quite all, investigating security across the worksite. The jobs are at the same classification level.

PN2618

The fundamental purpose of the role is project management. It is the same job. It is simply slightly differently organised. You were taken to paragraph 1756 of transcript where Mr Langarish says that the PMI role certainly is not required to manage strategic directions. Mr Langarish did however concede that the PMI role has a role in strategic directions and Mr Ruskin’s assertion that it does not have such a role is not supported on the evidence. It’s been suggested that because the business analyst and the PMI positions are at different classification levels they can not both be substantially similar to the old SPC role.

PN2619

Again this comes back to the breadth of the expression incidental or peripheral. The employer has given evidence that the duties of the old position were distributed across the three new positions and we say that the evidence shows that sufficient overlap exists between those positions, that they are indeed all incidental or peripheral to the old SPC role. And we say that two of them, the two project manager roles, are far more than incidental or peripheral. Mr Ruskin referred to the WBOA project which I had asked Mr Langarish to give a real world example of a project design, a pre-designed project, that would be given to a project manager to implement and he gave one associated with the XP upgrade, I believe, and Mr Ruskin invited him to point to a more significant project and he pointed to the WBOA project.

PN2620

The evidence is that the WBOA project is an applications project rather than an infrastructure project. Nevertheless at G5 paragraph 11, which is Mr Ozturk’s statement in reply, we also heard evidence that Mr Ozturk prepared the submission for stage 2 of the WBOA project, a level of engagement which indicates more than waiting for the implementation stage. Mr Ozturk was said to have - sorry. At paragraph 14 of the outline of final submission Mr Ozturk said that inaction would not necessarily have resulted in him being appointed to the PMI role.

PN2621

If you examine the transcript that’s referred to there what Mr Ozturk said was that it wouldn’t necessarily have resulted in him being appointed to that role because there was more than one role that that matching might have led to. The imputation that he did not think he would be appointed to the PMI role or have any doubt that he could be matched to it is not supported by the evidence. It’s been suggested that Mr Ozturk’s motive throughout the process has been to go with the main charts, that it’s a handy thing to be a redeployee because you get a chance at a more senior position. When all else fails an idea erupts.

PN2622

The union absolutely rejects that imputation and asserts that the motive in this matter is a proper application of the agreement and a fair outcome for Mr Ozturk. The Jones v Dunkel argument was raised in respect of the failure by the NTEU to call Ms Bourke as a witness. The NTEU has provided witness evidence of all of the relevant aspects of the proceedings. The suggestion that there was no aspect of the disputes procedure or the subsequent meetings and negotiations that we did not make witness evidence available for is wrong. Mr Ruskin has a hypothetical what if the institute had done what the union is urging, but as a result of that had for example downgraded the project manager position to a CSO4.

PN2623

Well yes, he’s right, there would be a dispute about that because we would be disputing that it could possibly, that role could possibly be located at a CSO4. However, if the hypothetical situation applied to some other role which could be properly located anywhere between a 4 and a 6, for example, resulting in a downgrading from a 6 to a 4, there might well be a dispute but it would not be a dispute about the application of the agreement. We are not suggesting that there is no role for the union in agitating for the interests of its members. Mr Ruskin pointed out that Mr Ozturk doesn’t need the car for his job.

PN2624

We say that whether he lives near or far from the institute is a private matter and nothing to do with his conditions of employment. He is not looking for sympathy, he is looking for his entitlements. In his conclusion Mr Ruskin said that if you were to find (c) that the positions are materially different, that would be enough, but that (a) and (b) would, if you found either of those, it would support a finding in relation to (c), therefore that they were not essential. We say that they are not sufficient, that without (c) you can not dismiss the application.

PN2625

And materially different we say within (c) would have to be materially different to an extent which takes the position outside the exclusion. And what that would lead you to, we say, is to dismiss the primary and the first alternative submissions and then the second submission would need to be dealt with, the second alternative submission. Mr Ruskin said that Mr Ozturk did not go to management as Mr Natschuv had done and that he should have. Well, I think there’s fairly strong record of correspondence and notes of meetings to show that Mr Ozturk did in fact go to management.

PN2626

Mr Ruskin said that redeployment is what places a person in the new position and nothing else and made much of the casual language of placement, moving across, matching, redeployment. If redeployment is the only thing that places a person in a new position, how did Mr Hogan get there? The fundamental purpose of the role prior to the restructure was project management. The fundamental purpose of the role after the restructure is project management. Two experts have given evidence of that and have said that the fundamental purpose and primary functions of the roles before and after are the same.

PN2627

Mr Ozturk has given evidence of that and that view is supported by
Mr Langarish’s remarks about the SPC role in his comparison of that role with the business analyst. Mr Ruskin has said that maintaining the car is not possible because of the inconsistency it would create within the organisation and that
Mr Ozturk would then be the only employee below management level to have a car. We say where possible is a strong expression. It is possible to have inconsistency in the application of access to institute vehicles. The institute in fact has operated on that basis for some years. Mr Ozturk has had access to an institute vehicle without holding a management position.

PN2628

It is entirely possible and it is a wrong construction of the concept where possible to suggest that something as small as an inconvenience - sorry - an inconsistency in internal practices would make such an outcome not possible. The question arose of whether Mr Ozturk has accepted the offer of 19 March. At attachment 7 of his initial witness statement, G4, is Mr Ozturk’s acceptance of the position. He accepted the position on 20 April and noted that that acceptance is without prejudice to the current dispute. It’s not the other way around, your Honour. He has accepted the position on the basis that the fact of his accepting the position should not be used in these proceedings as in any way evidencing his acceptance that the terms of the offer were fair or appropriate.

PN2629

He has accepted the position without prejudice to the outcome of these proceedings. It is our expectation that if the union is successful in these proceedings then there will need to be a variation to that arrangement that
Mr Ozturk has accepted. He has returned the vehicle as requested and he has sought a status quo arrangement pending the resolution of the dispute which, given the car has been returned, generally I suppose envisages that if your Honour takes longer than August to reach a decision in this matter that the next salary increase under the agreement might apply.

PN2630

But we say that is an acceptance and that Mr Ozturk has accepted the position. Mr Johansen and Ms Denton gave evidence of their expertise. That evidence was not challenged in either case. Your Honour pointed to the parts of Ms Denton’s witness statement that established that her expertise goes well beyond points factoring and that she is expert in the application of the factors that are to be taken into account in restructures and redeployment. We also say that both Mr Johansen and Ms Denton through their expertise in points factoring have and must necessarily have expertise in looking at the way that duties are described in being able to compare the way that duties are described and being able to compare whether one description of a set of duties and another description of a set of duties describe the same or different duties.

PN2631

If they were unable to do that they would be unable to ascertain whether the duties described were at any particular level. You can’t evaluate the positions without analysing the functions. In relation to the comparison of the SPC and the PMI position descriptions Mr Ruskin pointed to the fact that I never took Mr Langarish to paragraph 46.1 of his with statement. I did take Mr Langarish to the issue embodied in paragraph 46.1 of his witness statement. I did take Mr Langarish to the question of the extent of business analyst functions in the PMI role and that can be found from paragraph 1659.

PN2632

Mr Ruskin said that I had said that preparation and scoping had been removed from the role. Just to be clear, I did not say that. I said that in my discussion with Mr Langarish about the differences between the roles, he had said that preparation and scoping were removed from the role. I said that Mr Langarish drew that distinction and I also said that Mr Ozturk’s evidence on that question should be preferred. It was suggested that Mr Ozturk was not a forthcoming witness because of his incapacity to answer a simple question at paragraph 644 to 648. We say that there should be no question as to Mr Ozturk’s credit. It was a long cross-examination and Mr Ozturk answered questions well and carefully.

PN2633

Mr Ruskin, I think ..... no. Mr Ruskin said that Mr Ozturk had never asserted that the project manager applications position which he did make an expression of interest for was his old job. Well, the letter of expression of interest that
Mr Ozturk wrote in relation to that position made the point that his old job more than matched the project manager applications. And we say that the concept of matching is well understood and widely used and of long standing at Kangan.
Mr Ruskin said that Mr Mackay was an honest witness, but I say that he was an unreliable witness. In addition to the errors in his witness statement which
Mr Mackay amended when they were drawn to his attention, he also had a very poor memory of the nature of the dispute and what had in fact ended up as attachments to his own witness statements.

PN2634

And in relation to that I point to paragraph 1823 of transcript, 1828 to 1829, 1835, 1836 and 1839 as examples of Mr Mackay having no memory of matters that had been raised by the union in documents attached to his own witness statement. Your Honour, in relation to the argument about the application of estoppel we say that the Commission should exercise extreme caution in placing an impediment in the path of industrial parties in bringing unresolved industrial disputes for resolution according to the terms of agreements and that is the consequence of what is urged by Mr Ruskin.

PN2635

We say there is no unconscientious conduct on behalf of the union in the terms of the decision in Verwayen. We say that the union has neither done nor omitted to do anything in order to induce the employer into declaring positions surplus to requirements. And the union is entitled at all times to represent its members as best as possible to achieve a practical outcome to industrial disputes and in doing so is entitled to rely upon the employer’s representation as to what procedures it is implementing until such time as we have cause to question those representations. The dispute is over the proper application of the agreement and we say the character of the dispute is distinguishable from the nature of the remedy.

PN2636

The nature of the remedy that we seek does directly reflect Mr Ozturk.
Mr Ozturk’s circumstances are an incident of the dispute, but the dispute is not between Mr Ozturk and Mr Langarish, the dispute is between the NTEU and Kangan Institute and it is about the proper application of the redundancy procedures, the redeployment procedures and what should happen in a restructure. Thank you.

PN2637

THE VICE PRESIDENT: I thank the representatives for their submissions. I'll reserve my decision. The Commission will now adjourn.

<ADJOURNED INDEFINITELY [4.24PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R5 MR RUSKIN'S SUBMISSIONS PN2349