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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 18283-1
COMMISSIONER SMITH
C2007/3792
s.170LW - prereform Act - Appl’n for settlement of dispute (certified agreement)
Civil Air Operations Officers’ Association of Australia, The
and
Airservices Australia
(C2007/3792)
MELBOURNE
10.02AM, TUESDAY, 18 MARCH 2008
Reserved for Decision
Continued from 17/3/2008
PN548
THE COMMISSIONER: We'll keep shuffling until we find a cooler room.
PN549
MR DOWLING: Certainly an improvement, yes.
PN550
THE COMMISSIONER: Yes, Mr Dowling.
MR DOWLING: I call Peter Sweeney.
<PETER BERNARD SWEENEY, SWORN [10.02AM]
<EXAMINATION-IN-CHIEF BY MR DOWLING
PN552
MR DOWLING: Mr Sweeney is your full name Peter Bernard Sweeney?---Yes, it is.
PN553
Your address (address supplied)?---Yes, it is.
PN554
You are an employee of Airservices Australia?---Yes.
PN555
You've prepared a statement for the purposes of this proceedings?---Yes.
PN556
Is that the document you have with you?---Yes, it is.
PN557
Is that a document of 18 paragraphs?---Yes.
PN558
With two exhibits?---Yes.
PN559
If I could take you to paragraph 1 of that statement?---Yes.
PN560
Should the reference to 29 years there be 28 years?---Yes, it should be 28 years.
PN561
Apart from that correction is that statement true and correct?---Yes.
I tender that Commissioner.
EXHIBIT #CIVIL AIR 8 STATEMENT OF PETER SWEENEY
PN563
MR DOWLING: If I can take you to paragraph 3 of your statement?---Yes.
PN564
You there refer to a duty statement for the position of operation supervisor and you have attached that as the first exhibit which is marked at the very top as PDS1, you see that exhibit?---Yes.
PN565
Can you explain to the Commissioner where that duty statement comes
from?---It's an Airservices document from the roles, responsibilities and accountabilities for supervisors including Sydney traffic
managers, effective
21 October 2004 and I think it was also part of CATSA.
PN566
You just read that, where were you reading that from?---On the first page under 2.4.
**** PETER BERNARD SWEENEY XN MR DOWLING
PN567
Thank you. If I can hand you a copy of the statement of Brian Joiner have you seen that statement of Mr Joiner before?---Yes.
PN568
If I can ask you to turn to paragraph 36 of that statement?---Yes.
PN569
The first sentence of paragraph 36 Mr Joiner says:
PN570
Have you been redeployment of the position of CNS ATM specialist -
PN571
The second sentence he says, but reading the relevant words:
PN572
Between 2003 and late 2007 he has spent most of his working time on the development of airborne separation standards in conjunction with NASA.
PN573
What do you say in response to that sentence?---I would say I haven't spent most of my working time, I have spent some of my time working with NASA. The rest of the time has been in the operational centre as a track master. Track master, check controller, assessor and also working as an operational supervisor.
PN574
THE COMMISSIONER: What's a track master?---Track master is a position in the ATM centre developing the way aircraft track between Singapore and Bangkok to Melbourne, Sydney and Brisbane every night.
PN575
Thank you.
PN576
MR DOWLING: You said in your answer to my question or in answer to that sentence, you haven't spent most of your time you've spent some of your time. Can you give a rough estimation of the - - -?---Okay, it started in about 2005, at that time it was probably one day a week and then in late last year, I spent two or three weeks solid doing it because we did exercises in the HS simulator to validate the separation standard.
PN577
Apart from what you've just described you were doing the other duties that you describe?---At the same time.
PN578
You see the sentence that follows that one is the sentence that reads:
PN579
That work is the same - is of the same nature draws on the same skills and capabilities as the work of the CNS ATM specialist.
**** PETER BERNARD SWEENEY XN MR DOWLING
PN580
What if anything do you say in response to that?---Not really knowing what the CNS ATM specialist would be doing precisely, the stuff I have been working on is five years in the future. The equipment and the procedures we're working on, the aircraft haven't got the equipment on board to use them. So I don't think that it would be the same.
PN581
In terms of the work you have done on secondment, what's been your expectation upon completion of the secondment work?---I was to return to the centre as an operational supervisor.
PN582
What are you doing now?---At the moment I'm still finishing up the work with NASA. I'm working as a track master, track master assessor I'm the check controller for track masters, and have also begun training on Canberra approach.
PN583
By training Canberra approach, what's it mean?---To re-get an endorsement on Canberra approach. You need to have a traffic - or you needed to have a traffic endorsement to keep your operational supervisor qualifications going.
PN584
So can you just explain the need for that? The training of Canberra approach is to do what actual work?---To do Canberra approach itself, and then to help out with the supervisory roles in row one.
PN585
THE COMMISSIONER: That's all right I know, unless you don't.
PN586
MR DOWLING: I don't need to.
PN587
If I can take you lastly to paragraph 56 of Mr Joiner's statement?---Yes.
PN588
The first sentence of that paragraph it states:
PN589
Throughout the whole process of managing potentially surplus employees those affected have been engaged by their service delivery line managers.
PN590
What if anything, do you say in response to that?---I wasn't actually given a service delivery line manager to start with and so the only person I talked to was somebody who did the interviews for ALM's and the only response I got was, I'll pass this on.
Thank you, no further questions Commissioner.
**** PETER BERNARD SWEENEY XN MR DOWLING
<CROSS-EXAMINATION BY MR MUELLER [10.09AM]
PN592
MR MUELLER: Mr Sweeney you described briefly the work that you did in relation to track master?---Mm.
PN593
Where do you do that work?---In the operational centre.
PN594
Yes, where in the operational centre?---Just next to row three.
PN595
Yes, do you have a - is it work that's done at the desk is it?---No, it's done at the Doss Plus computer equipment.
PN596
So what you sit in front of computer equipment, does it include screens I take
it?---Yes.
PN597
Yes but they are not - they are screens that track actual flights between the destinations?---No, no.
PN598
What is it?---Okay what happens is the machine gets an update of the weather at 3 o'clock in the afternoon. That update of the weather is then fed into the machine, we ask the machine to show us the best possible fuel saving tracks that the aircraft can use between Singapore and Bangkok and Melbourne, Sydney and Brisbane. We then edit those tracks so they comply with ATC rules and separation standards, we make them ATC friendly, that's why all the people doing it are ATC's. Those tracks are then published and the airlines then fly those tracks, tracks of an evening.
PN599
When they're published, I got the impression just now that they are published to the airlines, is that right?---They are sent to the airline flight navigation computers.
PN600
Yes?---They are also to the NOTAM office to be published, the NOTAM is the legal instrument that the airlines fly under.
PN601
Who publishes the NOTAMs?---The NOTAM office.
PN602
Yes, is that Airservices function?---Yes, Airservices.
PN603
Does that line of communication, does that pick up air traffic controllers at any point?---Yes, the ALMs. The ALMs in aisle three and the ALM in aisle one I think it is in Brisbane, have to approve the tracks that they are ATC compliant.
**** PETER BERNARD SWEENEY XXN MR MUELLER
PN604
Yes so is there interaction between you and them?---Yes.
PN605
How does that happen?---In Melbourne obviously it's face to face because we're there. In Brisbane we publish a test track which comes up on the ATC screens and the ALMs look at them on the screens and then coordinate with us to change any of it.
PN606
Yes so it's the ATC line managers who take it into the sort of operational environment?---They approve it, they approve it.
PN607
Yes okay, does it then go on to the air traffic controllers themselves?---Yes, the tracks are published an hour before they actually become active, because they are only active from 2200 UTC, I mean from 1300 UTC till 2200 UTC.
PN608
You work shifts do you?---Yes.
PN609
As far as that track master work that you've just described, over the last 12 months or say in the last 12 months, what proportion of your work has been involved in that?---Usually two shifts a week.
PN610
Yes?---But that increased sometimes if I was doing the checks or assessments on the other track masters.
PN611
Okay you mention the work of assessor is that bound up in what you've just been describing or is that distinct?---Yes, no it's the same - it's like a check controller. The track master qualification the - each track master the same as an air traffic controller has to be checked and do a rating paper every 12 months and a check every six months.
PN612
Yes and what's your involvement in that?---I'm the one who does the checks.
PN613
THE COMMISSIONER: The check master got to be rated?---Say again?
PN614
The checking have you got to be rated for that? The tracking I'm sorry?---Yes, track master is a qualification on your licence but to check track masters you have to have a workplace assessor qualification, which I've got.
PN615
MR MUELLER: You mentioned that you were doing what's necessary to achieve your endorsement for - did you say Canberra?---Canberra approach.
**** PETER BERNARD SWEENEY XXN MR MUELLER
PN616
Approach yes, is that an endorsement that you've had before?---Yes.
PN617
But I take it that it's not that - you haven't held that endorsement for a period of time?---Yes.
PN618
How long is that?---Since 2003 I think.
PN619
Now you've mentioned the amount of work that you do in relation to the track master and assessor work, you also gave some evidence about the fact that at the beginning of the work that you were doing in relation to the NASA project you were doing initially one day a week?---Yes, thereabouts.
PN620
I wasn't sure from your answer whether you - whether it followed from that that you continued over the period of time, to be doing
about one day a week on
that project, is that correct?---Yes.
PN621
And there'd been from time to time, bursts of activities where you'd have to concentrate most of your time during the week on that?---Correct.
PN622
Yes and there'd been a recent example of that?---Correct.
PN623
Have you done any travel associated with that work?---Yes.
PN624
Can you describe what you've done in that respect?---I've attended two requirements focus group meetings which is a meeting between NASA, the FAA and Euro Control. In January last year that was in Brussels and in January this year it was in Florida.
PN625
Yes and I take it that you acquired a substantial amount of knowledge and information from the exchanges of those forums?---Well actually it was going back the other way. They wanted a rated air traffic controller there to give them a perspective of how their procedure was - or how their separation standard would work.
PN626
I see and so the - by virtue of your experience and knowledge of an air traffic controller you were able to give them perspectives that they otherwise would not have?---Correct.
PN627
I'm right in thinking that that project the ultimate objective is the development of new types of procedures?---Well that's the development of a new separation standard which can be eventually go through ICAO so everybody throughout the world can use it once the equipment is given in the aircraft.
**** PETER BERNARD SWEENEY XXN MR MUELLER
PN628
If there are new separation standards, does it follow that there will have to be procedures that reconcile with the separation standards?---I'm not sure. I can see what you mean by that, if it's a separation standard it goes into MATS and it's applied.
PN629
Yes I see but you might have to help me a bit here. If there are new separation standards putting it simply, the actual operational air traffic controllers will need to appreciate those standards?---Correct.
PN630
And there would be procedures developed for the delivery of the air traffic control services that are consistent with those separation standards?---Not necessarily. There would be training involved, once a separation standard is in MATS we then train the controllers whether it's just a computer type training thing or in the simulator, depending on the separation standard, that's usually all we do. Unless a separation standard is peculiar to a unit that can't be used throughout the centre then there could be something made up for it. But under this case I don't think that would be the - because it's based on ADSP.
PN631
Yes I follow. Just pausing there could you just describe what ADSP is?---In relation to ITP which is what we're talking about?
PN632
Yes?---Okay, what happens is we get two aircraft, both aircraft are ADSP equipped. One aircraft is ADSP in and out equipped. So the aircraft that is ADSP in equipped can give the controller a distance from other aircraft that it is flying around. The controller can then make a decision whether he can approve a level change using that information.
PN633
How much life do you think the project, the NASA project has in it
Mr Sweeney?---We finished with the RFG meetings in January. We're developing at the moment the report for our ATC simulations, which
will go in conjunction with the NASA airborne simulations and that should go to ICAO later this year. Then it's up to ICAO to develop
the separation standard itself.
PN634
Is that a project that you've found - would I be putting it too high to say that it was involving and engrossing?---It was interesting.
PN635
Now I think you are 48 years old is that right Mr Sweeney?---Correct.
PN636
Do I take it that you want to retire from working with Airservices?---Eventually yes.
**** PETER BERNARD SWEENEY XXN MR MUELLER
PN637
When you say eventually when?---Well I think we have to retire - well we can't retire until we're 55.
PN638
But you see yourself as having plenty of working years left?---Yes.
PN639
By virtue of your work as an active air traffic controller, then as an op supervisor and recently doing the types of work that you've
just recently described in your evidence you've acquired a large amount of knowledge and experience both on the operational side
and the technical side as far as air traffic control is
concerned?---Yes.
PN640
I just want to get this part clear, is it correct to say that unless the alternative position that is offered to you by Airservices involves operation supervision, you would be determined to leave the employment of Airservices?---Yes.
PN641
So that would be bringing your working life in Airservices at least to an end very shortly?---Possibly yes.
PN642
If you were offered, I should have said, a voluntary termination?---Yes.
PN643
All right and did you obviously a person who is - who sees yourself vocationally as attached to air navigation and air traffic control?---Yes.
PN644
If you leave Airservices are there other opportunities in - for you to apply your vocation in Australia?---Honestly I don't know, I haven't sort of looked that far ahead.
PN645
I see.
PN646
THE COMMISSIONER: I think you corner the market, don't you Mr Mueller?
PN647
MR MUELLER: Yes, we do there, I think we do, yes. We're a monopoly provider as they say although subject to close ACCC scrutiny.
PN648
THE COMMISSIONER: Competition and airspace management doesn't thrill me very much.
PN649
MR MUELLER: No.
**** PETER BERNARD SWEENEY XXN MR MUELLER
PN650
You've still got Brian Joiner's statement in front of you?---Yes.
PN651
When you received the offered position of CNS ATM specialist I take it that you had a pretty close look at the position description?---Yes.
PN652
Perhaps just to shorten things, it would be pretty clear to you wouldn't it that you have skills and capability that could be deployed
in the work that's
described?---Yes, I do.
PN653
THE COMMISSIONER: Did you apply for the ALM role Mr Sweeney?---Yes, I did.
PN654
MR MUELLER: You were unsuccessful is that right or - - -?---Yes.
PN655
Just if you could turn to your own statement and just have a look at page 3 paragraph 13?---Yes.
PN656
This is where you actually say you had looked at the position description of the position offered?---Yes.
PN657
You describe it in the second sentence as an administrative role?---Yes.
PN658
You would accept wouldn't you that the work that a procedure specialist does is vital and important work to the delivery of air traffic control services?---Yes, I suppose so.
PN659
Yes it's a bit more than an administrative role isn't it?---Well not necessarily. If you go to - compared to the operational supervisor's position which I had, if you go to my attachment there the top of 2.1 it says:
PN660
The overall responsibility of an operational supervisor is the provision of air traffic services and this does require the supervision of operational staff -
PN661
Now that's the primary role I've been doing and anything apart from that as far as I am - think and I think you'll find most of the operational supervisors, if you weren't supervising controllers we call it admin time.
PN662
I see that's the - - -?---I would say that this is just admin time.
**** PETER BERNARD SWEENEY XXN MR MUELLER
PN663
That's the - when you say administrative you mean it's not of the operational supervisor type of work?---No.
PN664
According to that definition the work that you've been doing on the NASA project and perhaps even on track masters, would attract a description administrative as well wouldn't it?---Possibly yes.
PN665
Yes that's all thank you.
PN666
THE COMMISSIONER: Yes, any re-examination?
PN667
MR DOWLING: One matter Commissioner.
THE COMMISSIONER: No, Mr Dowling's just got one issue to address to you.
<RE-EXAMINATION BY MR DOWLING [10.27AM]
PN669
MR DOWLING: Mr Sweeney you were asked some questions about the NASA project and the level of interest you had in it. Did you choose
to do that
project?---I was asked if I wanted to do it and I accepted it yes.
PN670
On a project basis?---Yes.
PN671
Nothing further.
THE COMMISSIONER: You are free to go now, thank you for your evidence.
<THE WITNESS WITHDREW [10.27AM]
PN673
THE COMMISSIONER: Yes, Mr Dowling.
MR DOWLING: I'll call Mr Andrew Dixon.
<JAMES ANDREW STEADMAN DIXON, SWORN [10.28AM]
<EXAMINATION-IN-CHIEF BY MR DOWLING
PN675
MR DOWLING: Mr Dixon, is your full name James Andrew Steadman
Dixon?---It is.
PN676
Your address (address supplied)?---Yes.
PN677
You've prepared a statement for the purposes of this proceeding?---Yes.
PN678
Do you have a copy of that with you?---I do.
PN679
Is that a statement of 22 paragraphs?---Yes.
PN680
With three exhibits marked as JSAD1, 2 and 3?---Correct.
Are the contents of that statement true and correct?---Yes, they are.
EXHIBIT #CIVIL AIR 9 STATEMENT OF JAMES DIXON
PN682
MR DOWLING: You should also have there in front of you a statement of
Mr Joiner, do you have that?---I do.
PN683
Have you seen that before?---I have.
PN684
If I can ask you to turn to, or if you could turn to paragraph 49 of that statement, which commences at page 13 and the third sentence of that paragraph begins:
PN685
In order to perform this role -
PN686
Referring to you:
PN687
-he was given extensive training in the operating system above and beyond that required by a normal ATC.
PN688
What do you say in response to that?---I was given training above a normal ATC, however this training was nine years ago. A fair bit of it has ratified with the years gone by, some of what I can still remember is incorrect because the system has changed. My knowledge at the moment would probably be at a level perhaps just above normal ATC.
**** JAMES ANDREW STEADMAN DIXON XN MR DOWLING
PN689
If I can ask you to have a look at the two preceding sentences in that paragraph the one referring to local operating constructor and the one referring to "he worked to deliver the TATS theory", firstly can you just explain to the Commissioner what the TATS theory is?---We were changing to a new system and that required instruction for the controllers in the new system so a group of instructors were sent to France to learn the new system. They were TATS operations instructors and then controllers from within each local area were taught a level of knowledge enough to pass on that to the controllers by these TATS instructors.
PN690
What if anything do you say in response to those sentences, I note that he was trained as a local operating officer, operating instructor my apologies and he worked to deliver the TATS theory?---Yes, I delivered the TATS theory to staff between 1996 and mid 1999. Brian says that most people who fill these roles have taken up positions within the SS area. I know of no local operations instructors that have taken up a SS position, in either Melbourne or Brisbane.
PN691
He also says the SS role here's being offered requires a high level of knowledge of TATS, what do you say in response to that?---It does it has, it requires a high level of knowledge of TATS because it's mainly a system as well.
PN692
Okay thank you. If I can ask you to turn over to page 16 and to paragraph 56. Firstly in response to the first sentence of that paragraph it says:
PN693
Throughout the whole process of managing potentially surplus employees those affected have been engaged in by their service delivery line managers.
PN694
What do you say in response to that?---There was very little engagement as far as I'm concerned. Passing conversations, at best that I can recall was my manager said he was going to keep me on the line if that's what I wanted. There was no discussion with him of what roles I might take up.
PN695
And in the same paragraph Mr Joiner sets out in the last sentence the sentence beginning:
PN696
Each of the employees concerned in this proceeding indicated preference for voluntary redundancy well before the final redeployment offers were made -
PN697
He goes on, what do you say in response to that?---I didn't indicate a preference, only to perhaps an interest in that the leave I should be offered because the process should be gone through. Even now if offered redundancy I don't know that I would take it. I certainly did not indicate a preference for it I must say.
**** JAMES ANDREW STEADMAN DIXON XN MR DOWLING
PN698
Thank you, nothing further Commissioner.
THE COMMISSIONER: Thank you. Mr Mueller?
<CROSS-EXAMINATION BY MR MUELLER [10.34AM]
PN700
MR MUELLER: When you say that you are not sure in your own mind about whether you'd take voluntary termination with the redundancy benefits, that's what I understood you just to say?---Yes.
PN701
Is that associated with what you say is a lack of information about the terms of the redundancy or the effect of the redundancy payments?---No.
PN702
What is it about?---I would like to - I will consider my options if I do get offered redundancy but there a number of factors, including the fact that I still quite enjoy being an air traffic controller.
PN703
All right but what - apart from the actual receipt of the invitation to voluntarily terminate, what other factors are involved in your decision?---It will be a calculation of consideration of what the payment for redundancy would be, I have not made any calculation of what that would be. It would be a decision as I've said which I've deliberately put off until giving an offer whether I want to continue with as an air traffic controller. Things at work are changing on a constant basis, with the - how the organisation is being run at the moment. I've no intention - if I'd made a decision - let's say six months ago the organisation has changed greatly in the last six months. So I've no intention of making a decision until the time comes.
PN704
But if you had at your fingertips information about the benefits that would be paid in association with the voluntary termination wouldn't that be about the only other matter that you need to arrive at a decision on what you've just said?---That and the fact that I would want to see, the latest information about the organisation and the working within it. Things have changed greatly, for instance, the lack of AWAs the new government, a number of things have changed with the way the organisation is being run, so I would want to make the decision when the offer is made and not until then.
PN705
Yes all right now you know don't you that the position that is offered to you is the one that is described in the offer that you received?---Yes, there's some, I can say it's only rumour at the moment, but some changes maybe the SS operational director at one stage, the offer appeared when I got it that they were going to combine the roles. They now appear as though they are going to separate them again but in essence yes it is the offer that was made.
**** JAMES ANDREW STEADMAN DIXON XXN MR MUELLER
PN706
You know what a system supervisor currently does don't you?---Yes, not having received the training so I can I know what he does from outside.
PN707
Do you know any system supervisors?---I know lots of system supervisors.
PN708
You know what they do?---I know what their role contains from looking without actually performing it, yes.
PN709
What sort of interaction have you had with system supervisors in the work
sense?---As an operational supervisor we would look - do fault reporting through them. They would deal with the technical staff and
we reported faults and it sort of goes with them when you do that. They manage the system.
PN710
Now just going back to where I was. You know what a system supervisor does and you know that that's the redeployment offer that you've received. Isn't it correct to say that if you were minded otherwise to stay in the organisation that's a job that you could do?---With sufficient training yes. However, most FBC's could do the same.
PN711
So your decision about whether you would if offered voluntary termination would be dictated about your view at the moment that you receive, or around the time that you receive the offer about the nature of the organisation at that time?---I'm sorry, could you ask that question again?
PN712
Yes if you received an offer to voluntarily terminate you would make that decision primarily by reference to how you regarded the, if I could put it this way, the ethos or culture of the organisation at that time?---No, no.
PN713
MR DOWLING: Well I think Mr Dixon has already given the answer to this question. He said the factors that he would take into account if an offer is made to him. He certainly hasn't indicated - - -
PN714
MR MUELLER: That's okay I won't press on with that question, I think that's probably right.
PN715
Now just going back to some questions were directed about the TATS
system?---Yes.
PN716
That's the system that, would it be correct to say it currently underpins the air traffic control in Australia at least?---It is the computer system that we use, so in that case, yes.
**** JAMES ANDREW STEADMAN DIXON XXN MR MUELLER
PN717
In that instance, yes all right. Now in your work as an op supervisor did you do what I think is typically described as portfolio work?---Yes, I had an admin portfolio.
PN718
Yes and what are the types of things that fall within that portfolio?---I had training experience in the past so I did, responsible training for the group, ensuring that recent training and refresher training was conducted by the group. I had an overseeing role when trainees came within the group to ensure they got given an instructor to check on their progress they'd do the course.
PN719
When you're undertaking that training work where is that done?---Combination within the room and outside the room, outside the centre.
PN720
If it is outside the centre where is it happening?---In an office which would have been designated either the Barossa Group office, or now, it's the Adelaide Melbourne ST airline Airservices unit.
PN721
All right thank you.
PN722
THE COMMISSIONER: Any re-examination?
MR DOWLING: Only one matter again Commissioner.
<RE-EXAMINATION BY MR DOWLING [10.43AM]
PN724
MR DOWLING: In answer to some questions about the system supervisor, you indicated in your answer that there was some discussion about the combining or the separation of the roles, can you explain to the Commission what you mean by that?---There was a system supervisor at the moment manages the system. Its -manages the TATS system ensures that the computers are working and liaises with the technical staff, spends a lot of time managing the system and to my mind no that much on air traffic control itself. The operational director has operational command authority for the flight out of region, which involves Sydney, Adelaide, Canberra, and does a fair bit of liaison with airlines and command authority of the whole room. At the moment there's two positions and to my mind their roles are fairly separate. There was discussion that they were going to combine the roles, give people a rating that would cover both positions and they would alternate, or they would - there was some rumour that they might just combine the role into one position, and have one person do it. That's the last official information that I've got, but certainly rumours which I do not know whether correct or not, but certainly from talking to the SS's they've indicated that the plan as of last Thursday was to keep them apart.
**** JAMES ANDREW STEADMAN DIXON RXN MR DOWLING
PN725
So that the offer you've been given is the separate, what you're calling the - - -?---I suspect it's the SS although the description indicated it was a combination of the two, but I suspect it would be the SS role and not that.
PN726
Nothing further.
THE COMMISSIONER: Thanks for your evidence Mr Dixon.
<THE WITNESS WITHDREW [10.45AM]
MR DOWLING: I call Wayne Ayliffe.
<ANTHONY WAYNE AYLIFFE, SWORN [10.46AM]
<EXAMINATION-IN-CHIEF BY MR DOWLING
PN729
MR DOWLING: Mr Ayliffe is your full name Anthony Wayne Ayliffe?---It is
PN730
Your address is (address supplied)?---That's correct.
PN731
You're an employee of Airservices Australia?---I am.
PN732
You have prepared a statement for the purposes of this proceeding?---Yes, I have.
PN733
Do you have a copy of that with you?---I do.
PN734
Is that a statement of 21 paragraphs with two exhibits marked AWA1 and AWA2?---Yes.
PN735
Are the contents of that statement true and correct?---Yes, they are.
I tender that Commissioner.
EXHIBIT #CIVIL AIR 10 WITNESS STATEMENT OF ANTHONY AYLIFFE
PN737
MR DOWLING: You should also have in front of you Mr Ayliffe a copy of a statement of Mr Brian Joiner do you have that there?---Yes, I do.
PN738
Have you read that statement?---I have.
PN739
Can I ask you to look at paragraph 56 of that statement? The first sentence in that paragraph sets out:
PN740
Throughout the whole process of managing potentially surplus employees those affected have been engaged in by their service delivery line managers.
PN741
Do you see that sentence?---Yes.
PN742
What do you say in response to that?---I've never spoken to my service delivery line manager about this matter.
PN743
Nothing further, thank you Commissioner.
THE COMMISSIONER: Thank you.
**** ANTHONY WAYNE AYLIFFE XN MR DOWLING
<CROSS-EXAMINATION BY MR MUELLER [10.48AM]
PN745
MR MUELLER: Mr Ayliffe I take it from that last answer, that you haven't raised it with your service delivery line manager?---That's correct.
PN746
Now could I ask you to look at your own statement of paragraph 13, you'll see there that you give an abbreviated description of the - what's involved in the offered position and you say in the second last sentence for example:
PN747
I will be told I will have to develop procedures for something and this will then be issued under the auspices of the standards manager.
PN748
Now when you say something, you know what the subject matter of procedures will be in the air traffic controllers don't you?---No, no, I don't. It could be any number of hundreds of items that I may have to develop.
PN749
Yes are they to do with procedures that are followed by air traffic controllers in the operational environment Mr Ayliffe?---I guess they would be.
PN750
You are not able to guess it, you know it don't you?---No, I guess they would be. I've not done the job.
PN751
Yes I follow that, but for how long have you been employed by Airservices?---25 years in July.
PN752
Yes you know about the way in which the operational side of air traffic control is organised?---I'm an operational air traffic controller so I understand how operationally it works.
PN753
You know about the areas that provide the direct support for the delivery of air traffic control services, surely I suggest to you?---I understand there are areas, how they all work I'm not aware of how they all work.
PN754
You understand that procedure specialists develop procedures for that air traffic controllers follow?---Yes.
PN755
As an active controller over those 25 years that you've spoken about you have daily dealt with those procedures?---I've had to interpret and apply the procedures.
PN756
Yes, which means reading them and understanding them?---Yes.
**** ANTHONY WAYNE AYLIFFE XXN MR MUELLER
PN757
And applying them in the operational environment?---Yes.
PN758
Now you I think noticed and remarked on the fact in paragraph 13 that the position that you've been offered amongst other things involves supporting check and standardisation staff?---Yes.
PN759
Can you tell the Commission what the role of a check and standardisation officer staff member is concerned?---Yes a check and standardisation officer checks air traffic controllers on a minimum very six months to ensure that the air traffic controller is still performing to a correct standard.
PN760
Amongst other things they check to see that they have the appropriate level of knowledge and familiarity with procedures that have to be followed?---I believe I just said that.
PN761
Yes all right now you're putting your evidence forward in this proceeding to support a contention that you should be offered voluntary redundancy that's correct isn't it?---As one of the options.
PN762
Well you're confronted only with two options aren't you? You accept the offered re-deployment position or depending on the outcome of these proceedings you are given the opportunity to voluntarily terminate with redundancy benefits?---That's correct.
PN763
All right well you - could I suggest to you, you must know which way you're going to go if you receive an offer of voluntary termination?---I have already rejected the offer to the manager ATC Ken McLean in writing.
PN764
Does that mean the answer is yes you know the way you're going to go, you are going to elect to accept the invitation if it be given to you?---No, I wouldn't say that's fully correct I would say that I would certainly want to continue to explore that option.
PN765
Okay, I just want to understand this, does that mean that you might yet decide that you would accept the redeployed position and not elect to voluntarily?---I would not accept the redeployed position of CNS ATM.
PN766
Okay so you would, if you received an offer for voluntary termination then you would then come back to Airservices and say look, I'm going to accept this and let you give me another job which I prefer, is that what you're saying?---No, that's not what I'm saying. If I was given the offer I would then discuss it with my wife before I proceeded further.
**** ANTHONY WAYNE AYLIFFE XXN MR MUELLER
PN767
Yes I see so you haven't had those types of discussions yet?---What with my wife or with my employer?
PN768
With whoever you seek your counsel from let me put it that way?---I've - my wife and I are still exploring our options.
PN769
Yes now you're 47 years of age I think?---Correct.
PN770
Your work, your professional life has been in working with Airservices in air navigation?---Correct.
PN771
Now in paragraph I think 19 of your statement you say that shift work is a way of life for you?---Correct.
PN772
Do I take it that, this is in paragraph 19, I take it there putting that forward as a reason why you would, as one of several reasons I should say, you don't like the idea of taking up the position that's been offered to you?---That's one of the reasons, yes.
PN773
Of course that will be a way of life that as far as air traffic control will be lost to you if you leave Airservices?---That's correct also.
PN774
Now can I ask you just to look at paragraph 17 of your statement here you refer to the matter of early retirement benefit, you see that?---Yes.
PN775
Again are you putting this forward, the uncertainty that you speak about in that paragraph about that subject as another reason why you would not accept the offered position?---Yes, it's another one of many.
PN776
You were one of those air traffic controllers who satisfied the requirement to carry with you an early retirement benefit?---Yes.
PN777
You haven't commuted that into something else as some air traffic controllers have done?---I receive it as a part of my salary.
PN778
I see well you're not entitled to an early retirement benefit in that case?---Well I am I'm being paid that fortnightly.
PN779
But correct me if I'm wrong, I don't think there is any controversy about this, that payment that you receive is a payment, or the arrangement under which you receive it extinguished your entitlement to an early retirement benefit that's the way it works?---As a lump sum, I still have the option of an early retirement benefit fortnightly, which is not offered in the job description as maintaining my salary.
**** ANTHONY WAYNE AYLIFFE XXN MR MUELLER
PN780
I see?---It forms an extra on top of my salary.
PN781
Yes I see, but have you got any reason to believe that whatever form in which you see it would somehow be prejudiced by taking up this position?---Yes, I do.
PN782
What is that reason?---The job offer itself offers to maintain my salary only, it makes no mention of any additional payments that I currently receive.
PN783
I see can I ask you whether that's a matter that's been taken up with senior management by you?---No.
PN784
Well it's one of the reasons that you advance for amongst many that you advance for not accepting the position? Was it not sufficiently important that you take it up and clarify that?---I've listed as an uncertainty.
PN785
An uncertainty?---Not a given.
PN786
Sorry, an uncertainty that could be cleared up if you asked them questions about it?
PN787
MR DOWLING: It can be cleared up in evidence.
PN788
MR MUELLER: Well with respect the facts that he has just given don't allow me to do that on my feet. I can clear that up but there will be no prejudice to whatever entitlements there are I can clear that up in submissions but okay.
PN789
Now have you in your consideration of the matter of whether you would accept an offer to voluntarily terminate if it was made, laid some plans as to what you would do as an alternative to working with Airservices?---No, I haven't, no.
PN790
Yes, that's all thank you.
THE COMMISSIONER: Any re-examination?
<RE-EXAMINATION BY MR DOWLING [11.01AM]
PN792
MR DOWLING: Mr Ayliffe you were asked some questions about the choices that currently faces you in terms of the CNS ATM position or the voluntary redundancy. Are there other options or other ways that you envisage you could remain at Airservices?---Not in the same job role that I had, no.
PN793
But other ways that you could remain?---Yes, I could remain as an active air traffic controller.
PN794
Hs that been offered to you?---Not formally, no.
PN795
Nothing further Commissioner thank you.
THE COMMISSIONER: Thank you for your evidence.
<THE WITNESS WITHDREW [11.02AM]
PN797
THE COMMISSIONER: Now we've got Mr Joiner next have we? Do you want to take five minutes?
PN798
MR DOWLING: That's our case Commissioner.
PN799
THE COMMISSIONER: Yes, do you want to take five minutes to arrange for Mr Joiner?
PN800
MR MUELLER: Yes.
PN801
THE COMMISSIONER: All right we'll adjourn for five minutes.
<SHORT ADJOURNMENT [11.03AM]
<RESUMED [11.17AM]
PN802
THE COMMISSIONER: Yes.
PN803
MR MUELLER: If the Commission pleases. Commissioner I would propose, virtually to go straight into evidence. The contentions that are contained in ASA1 carry the way in which we put the case as a matter of construction and then after that it's a matter of assimilating the ultimate facts to whatever construction is adopted. The only point that I do make is that there is an element of ships passing in the night here as far as the construction question is concerned. My learned friend has consistently put the case from the basis that the matter is ruled exclusively, exhaustively by the principle in clause 7.10(1)(b) and you will see from our contentions that we say that on a construction of the provision as a whole, what is stated in that principle is not the, by any means the sole or the exhaustive determinant of the question but we will come to develop that in our submissions.
PN804
THE COMMISSIONER: Yes.
MR MUELLER: As far as evidence is concerned we will be calling one witness and that will bee Mr Joiner and I'd ask him to go to the witness box.
<BRIAN WILLIAM JOINER, AFFIRMED [11.20AM]
<EXAMINATION-IN-CHIEF BY MR MUELLER
PN806
MR MUELLER: Mr Joiner could you tell the Commission your full
name?---Brian William Joiner.
PN807
Your address?---(address supplied).
PN808
You are the manager of National ATC Service support in Airservices
Australia?---That is correct.
PN809
You have made a statement in relation to this proceeding?---That is correct.
PN810
Do you have a copy of it with you?---Yes.
PN811
Could I ask you to look at it and it is a statement of 56 paragraphs signed and dated 28 February 2008?---That is correct.
PN812
It has a number of annexure to it and before I ask you to affirm its contents there are just several matters that require amendment. Could I ask you to look at paragraph 5 going to the second sentence that begins "National ATC service support has a budget of approximately $40m and" and the next word is "employees" I think the approximate number of employees has been omitted, what is that number?---It should state 230.
PN813
Yes and if I could ask you to look at paragraph 12 you will see that there's a reference to an annexure BJ3 which is a table and indeed there is an annexure BJ3 to that statement but there is also a reference in paragraph 19(c) of your statement to another annexure BJ3, which is a different document. Would you, with the Commission's leave if the witness could be allowed to amend that second reference to read (a) "Annexure BJ3A"?---Yes.
PN814
Now one other matter in terms of accuracy. In paragraph 7 of your statement you refer to various functions that are conferred on Airservices by the Airservices regulations is that - is what is said in that paragraph entirely accurate?---That paragraph implies that we still have the responsibility for regulation of air space and that responsibility has gone to CASA as of July last year.
PN815
I see if that paragraph could be read in that way.
PN816
THE COMMISSIONER: You put it as a clarification of series?
**** BRIAN WILLIAM JOINER XN MR MUELLER
PN817
MR MUELLER: Yes. With those corrections and amendments are the contents of your statement true and correct?---Yes.
PN818
Now just two questions. Mr Boxall who is one of the employees concerned in this proceeding works in Perth and he had been offered one of the CNS ATM specialist positions. In terms of the location of his work, what is proposed in that respect?---We've got a lot of problems in Perth and we've got a lot of work that we need to do with industry in Perth itself, so John's responsibility would be in relation to the WA route review project and also some other initiatives that we're taking over there to alleviate the traffic problems that we've got at Perth airport, so we need someone there who's familiar with the town and TCU because of their location.
PN819
What do you envisage as far as any requirement to commute back and forth to Melbourne?---It's always better to have face to face but we've just set up extensive video conference facilities throughout Australia, so I don't think travel is that necessity any more with video conferencing.
PN820
One other matter there I think has been a question raised about the possible combination of the roles of system supervisors and operations director, are you able to tell the Commission what the current position is as far as that is concerned?---The original intention was to combine the two positions up, but we had an independent review which was completed about two weeks ago by Third Horizon and their recommendation is that we don't combine the positions now that we leave the systems supervisor separate, and that we use the ATC line managers siphon through the operations director position to man that position. However, there's still work ongoing as to how the room supervision will end up being conducted.
PN821
Yes all right and I should ask you, Third Horizon is an external consultancy company?---Yes, they're an external consultancy company mainly dealing in change management and organisational structure.
Thank you, yes I tender his statement.
EXHIBIT # AIRSERVICES 2 STATEMENT OF BRIAN JOINER
THE COMMISSIONER: Yes Mr Friend?
<CROSS-EXAMINATION BY MR FRIEND [11.27AM]
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN824
MR FRIEND: Can you go to your statement please Mr Joiner, I take it you wrote this statement?---Yes sir.
PN825
Look at paragraph 27(b) this is where you're dealing with Mr Smith and you say that the position offered is a suitable position for him at the same level and it's important to Airservices air traffic control no less important than an operations supervisor's role and his experience is matched with the position, and it's for those reasons in respect of Mr Smith which you say it's a reasonable alternative position, is that right?---Yes, sir.
PN826
Those are the tests that you're applying in putting that forward correct?---Yes.
PN827
All right now in relation to Mr Ayliffe, paragraph 31 that's in precisely the same terms you accept that?---Yes.
PN828
Mr Grant paragraph 34, aside from the last sentence, that's in the same
terms?---Yes.
PN829
Mr Sweeney, the same as the others at 38?---Yes.
PN830
Mr Patterson at 42 and Mr Boxall at 47?---Yes.
PN831
You don't have the same paragraph in relation to Mr Dixon, is that right?---That's correct.
PN832
Can I ask you to have a look at a document please? Now I don't know whether you've seen this, I don't think you're on the list of recipients this is an email from Mr Welch, at least the email but it has a document attached headed "operation supervisor redeployment process" are you familiar with that document?---Yes, I've got the document.
PN833
Are you familiar with it?---I don't think that I have.
PN834
Well let me put this to you. Go down to the fifth paragraph on the first page it starts:
PN835
It's possible that an employee may for one reason or another say they do not want any position offered to them. In this regard Airservices takes the basic view that an employee does not accept redeployment with the position offered is at the same base level of remuneration at the same location and to which the employee is suited in terms of skills and capacity, or would be so suited through undertaking training would not be entitled to redundancy payment should they leave or have their employment terminated.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN836
Is that your understanding of the position at Airservices?---I have to say I'm not an expert in the human resources aspect but this is made in consultation with the human resources people so I accept that position.
PN837
Well but that's pretty much on all fours with what you've said in those paragraphs that I took you to in your statement isn't it?---Sorry in agreement or?
PN838
Yes, pretty much the same?---Yes.
Can I tender that document.
EXHIBIT #CIVIL AIR 11 DOCUMENT ATTACHED TO EMAIL FROM MR WELCH HEADED OPERATION SUPERVISOR REDEPLOYMENT PROCESS
PN840
MR FRIEND: Now would you accept that it's always been the position of Airservices that it should avoid voluntary redundancies in this process?---I would accept that it's the position of Airservices that we avoid redundancies where possible.
PN841
Can the witness be shown exhibit Civil Air 6?
PN842
THE COMMISSIONER: Yes, of course.
PN843
MR FRIEND: Mr Ken McLean was until recently manager air traffic controller?---That's correct yes, general manager.
PN844
General manager, turn to the second document an email from Mr McLean "given the staffing situation as you acknowledge we would be foolish to terminate either voluntary or involuntary any of our ATCs", correct?---Yes.
PN845
You'd read that - that's consistent with the Civil Air, sorry Airservices
position?---The position that was given to me was that the process that we went through was not about getting people out of the organisation
I can't comment on the state of play by Mr McLean.
PN846
All right, it's not inconsistent with the position that you have?---No.
PN847
In terms of your own personal position you've given evidence that you are the manager national ATC service support?---That is correct.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN848
How long will you remain in that role?---Another two days.
PN849
Two days, right and what role are you moving to?---Manager of major projects and commercial operations within business development.
PN850
Business development and does that deal with people external to the organisation?---That is correct yes.
PN851
Is that a promotion?---I guess so in the organisational hierarchy it's a sideways.
PN852
Mr Boxall you've given some evidence about the work that you want him to do. Can you have a look at your exhibit BJ3 please?---Can you just confirm that this is 3 or 3A?
PN853
It's 3, now that's a table that sets out where people are to go?---Yes.
PN854
You see the bottom row there's a list of boxes?---Yes, sir.
PN855
Specialist procedures east coast services?---Yes.
PN856
That's the job you want him to do?---The Perth terminal area and the Perth tower will be put into east coast services even though the actual work group is within regional services, it's just an internal thing within my organisation so it works better.
PN857
So the Perth tower isn't becoming part of east coast services?---No.
PN858
Just in terms of your organisation Perth is going to be part of east coast
services?---That is correct because of the - - -
PN859
Even though they are dealing with things at Perth?---That's correct but their work type is similar to a place like Sydney, Melbourne and Brisbane so it's easier for standardisation to have them with the same people, the same type of people.
PN860
How many people at Perth in your organisation?---In total I would have probably about half a dozen.
PN861
How many ATM specialist procedure people?---None at this time.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN862
So you're going to have one of them and they will be in east coast services dealing with matters to do with regional services?---Correct.
PN863
Do you have ATM specialist procedures persons in regional services?---In regional services?
PN864
Yes?---Yes.
PN865
So why would you have a person who's dealing with regional services matters and is based in Perth in regional services?---For the purposes of our group we've put Perth within the same group as east coast services because of the nature of the work.
PN866
What about the other people in regional services dealing with regional services matters - sorry - the other people based in Perth dealing with regional services matters are they going to go to east coast services as well?---Yes, some of them are and some aren't.
PN867
Some are and some aren't and how do you distinguish between them?---Just depends on the nature of the work. For example, the person within my group who works at Jandakot who's within the regional services group with all the rest of the towers, the person who works at Perth TCU is within the east coast services group with the other terminal control units.
PN868
Do you understand it would have assisted Mr Boxall to know that he was going to be dealing with regional services matters over in Perth, rather than east coast services matters?---I can't comment on the dialogue that went on between him and his - - -
PN869
I didn't ask you to comment on the dialogue, I'm asking you that - - -
PN870
MR MUELLER: Well with respect I do object because there is a premise in Mr Friend's question.
PN871
THE COMMISSIONER: It wasn't discussed.
PN872
MR FRIEND: I'll do it the slow way.
PN873
Mr Boxall has given evidence that the first time he knew he was going to work in east coast services was when he saw this document BJ3. Do you understand that it might have assisted him to consider whether or not he wanted the job if he had known he was dealing with Perth matters rather than east coast services?---Yes sir.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN874
All right now these jobs are within the national ATC service support unit?---That is correct.
PN875
Correct at paragraph 19(c) of your statement you deal with a review of the check and standardisation supervisor function, correct?---That's correct.
PN876
Now you talk in the second sentence of the key recommendations of the report. One of the key recommendations of the report and it's
derived from a finding that employees in CNSS were isolated from other tasks. Now BJ3A is the report, can you firstly direct me
to the finding you refer to and then the
recommendation?---I'll go through the report.
PN877
Well the report sets out findings at the conclusion of each section and then sets out recommendations and I'm just wondering which
one's you're referring to. I think you'll find to save you some time that the findings commence at
page 11?---The page 20.
PN878
Page 20, the one at the bottom of the page there?---You'll find in the second paragraph after point one, CNSS structure, second sentence, in the current structure of NASA there is a national procedures unit but no national CNSS unit.
PN879
Sorry I haven't followed where we are. Are we under the CNSS structure is that right?---Second paragraph after that.
PN880
Second paragraph:
PN881
In the current structure of NASA there is a national procedures unit but no national CNSS unit.
PN882
?---Sorry I was looking at page 20.
PN883
Yes, it's the second sentence of the middle paragraph on the page?---Sorry yes.
PN884
Is that the finding you're referring to?---Yes.
PN885
Well what you put in your statement is the finding is that it be isolated from other key tasks associated with the role such as procedures development?---That's correct.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN886
I suggest that that sentence says nothing like that do you agree with me?---If that's the way that you read it I agree with you.
PN887
Well?---I'm not trying to be smart, I had a lot of time with the people that wrote this report to get their intention of what the report was trying to bring across.
PN888
All right so it's not something contained in the report?---The way I read the report it was in there so.
PN889
So you're telling the Commission the sentence:
PN890
In the current structure of NASA there is a national procedures unit but no national CNSS unit.
PN891
Is equivalent to a finding that employees in CNSS were isolated from other key tasks associated with that role such as procedures development, is that what you're saying?---Yes, the way it goes on, there's no nationally focussed CNSS input into national procedures development.
PN892
Yes, is that all? I'm just asking what you rely on?---I was relying on this whole report not just any one isolated sentence.
PN893
With respect Mr Joiner you talk about a finding and the report actually has findings, you don't actually rely on any of those do you? The things that are called findings in the report?---I'd have to go back through the report.
PN894
Well please tell me which finding of the ones that are there that you rely
on?---Are you happy for me to sit down and read the report for the next five minutes.
PN895
I don't think it will take you five minutes to read the findings?---I'll take recommendation 12 as well.
PN896
Well can we focus just on - - -
PN897
MR MUELLER: Well he's been asked a question and as I understand it he's answering it.
PN898
MR FRIEND: Well perhaps Mr Mueller should perhaps pay more attention to the question. The question was which findings, the ones that are listed in the report which is what I asked the witness to read.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN899
THE COMMISSIONER: Which one were you referring to so that we can clear this up? Just in case there's been a misunderstanding.
PN900
MR FRIEND: I think I will repeat the question first?---I think my wording is probably confusing there, within my statement.
PN901
The wording of your statement is confusing okay, it's something that gets us a little way. So when you say the finding that employees at CNS were isolated from other key tasks associated with that role, such as procedure development you don't the mean the findings that are formally referred to in the report, you mean other parts of the report?---Well it says one of the key recommendations and I don't think it's actually a recommendation within the report, but it's what comes out of the report that was the recommendation.
PN902
So the evidence you give is that one of the key recommendations with the report wasn't actually listed in the report?---Not in the terms that that's written in paragraph (c) there.
PN903
No, the report actually has a page where it lists all of its recommendations doesn't it?---Mm.
PN904
The one that you call key there is not listed in those recommendations is
it?---That's my terms of how I've written that statement and it's not actually - - -
PN905
Follow the question please Mr Joiner, the one that you refer to as a key recommendation is not listed as a recommendation ion the report is it?---No.
PN906
You say that it derives from the paragraph you took us to on page 20, is that right your comment?---Well I - - -
PN907
Sorry I'll rephrase it to make it completely clear, it's a little unclear. The sentence that we're dealing with, one of the key recommendations up to procedures, development, derives from that paragraph on page 20?---Amongst the rest of the report as well.
PN908
Can you point to anything or is it just the whole report?---I point to the whole report.
PN909
You point to the whole report and you say that as a result of that key recommendation which we can find in the whole report, a decision was taken to create within the reformed ATC structure a unit that would stand by the procedures and operational behaviour. Now who made that decision?---Myself in conjunction with the general manager.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN910
When did you make that decision?---After we got this report. It was also - - -
PN911
When, when?---I can't quote exact dates, just sitting here at the moment, but I think we got this report around February, so it would have been some time after that.
PN912
Some time after that, when you say the general manager, the general manager ATC or general manager of Airservices?---General manager ATC.
PN913
That's Mr McLean?---That's correct.
PN914
Now you're aware that documents concerning that decision have been summonsed to this Commission?---Yes, I believe that they are summons documents.
PN915
You didn't record that decision in the document?---No, Mr McLean's office was next door to mine, I used to just go in and talk to him.
PN916
What so you make a decision to create a new unit within the ATC structure and you don't record it in a document is that right?---We'd virtually already had the unit there from the Third Horizon review of the ATC structure which was conducted in November 2006.
PN917
I see so you didn't make a decision after the report you had the unit there already, is that right?---No, we had the structure for the unit in place already.
PN918
All right, so you decided to make the unit something different than what it had already been, is that right?---No, the report wasn't really inconsistent with where we were going anyway at that time.
PN919
Well Mr Joiner your evidence is as a result of the report a decision was taken, now you're saying the report didn't make any difference, is that right?---No, not really at the time we were heading down that path the report was commissioned and we didn't progress any further with the work. When the report came out with its recommendations it was not inconsistent with where we'd started going in November 2006.
PN920
So the highest you put it now is that it wasn't inconsistent with what you'd already previously decided?---No, I was told to not go any further until this report came out, so therefore a decision was taken to continue with that after the report.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN921
All right so you and Mr McLean make a decision and nowhere do you record it in writing at all?---No.
PN922
And that's just normal procedure in Airservices is it?---Sorry is that a question?
PN923
Yes, it's normal procedure to make decisions like - of this nature and not record them in writing, is it?---Some management decisions don't get recorded in writing.
PN924
This is not an insignificant decision is it?---It was not inconsistent with where we were going at the time.
PN925
That's not my question Mr Joiner, it's not an insignificant decision is it?---I didn't consider it to be significant.
PN926
So it's not an important decision at all? This change isn't at all important?---It wasn't my view that it was important because it was where we were going at the time before the report was commissioned.
PN927
All right well if that's the case all this evidence about the decision being taken as a result of the report is just wrong isn't it?---That's not correct sir. I explained myself in regards to that word decision.
PN928
Well you're saying that the report didn't make any difference and so the decision is not an important thing and yet your written evidence is that the decision was made as a result of the report which is right?---As I explained before - - -
PN929
Which is right Mr Joiner?---As I explained before we were heading that way before the report was commissioned and I was told not to continue until the report had come out in case it was inconsistent with where we were going.
PN930
I understand you've said that Mr Joiner but do you see that there's an inconsistency between the things you're saying here now under cross-examination and what you've put in your written document do you see the inconsistency?---No.
PN931
As a result a decision was taken, doesn't that mean the decision was taken because of the report?---As I explained to you before I was told not to continue with the works - - -
PN932
That's a yes or no answer Mr Joiner, doesn't it mean the decision was taken as a result of the report?---A decision to continue yes.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN933
Then you take a first key step is that right?---Sorry is this in my statement.
PN934
Just tell us from your memory, you take a first key step after that decision?
PN935
MR MUELLER: Well with respect you've got to ask it a real clear question. Key step, I object on the basis that that question is unintelligible.
PN936
MR FRIEND: It is not unintelligible, they either take the step or not. The witness might quibble whether they take a key step but he can tell us what he did. Did you take the first key step after that Mr Joiner?---The first key step to continuing work yes.
PN937
The first key step to continue, all right. So that's the creation of the national ATC service support standards improvements unit is that right?---That's correct yes.
PN938
That's divided into east coast services and regional services?---Yes.
PN939
Was that recorded in documents, or is that just another decision which you didn't bother to write down?---I can't say, I don't know all the documents that you're holding there.
PN940
It's not about what I'm holding, it is not a test, I'm not trying to trick you, I'm just asking you questions Mr Joiner?---Yes. The decision to split the two units to east coast and regional services UAS was taken in November 2006 following the Third Horizon report into the ATC group that's when the structure was first developed. So there was no decision taken following this report to split the units because they were already there in the structure.
PN941
I see just have a look at your statement again?---Sorry which page do you want me to look at?
PN942
The creation of the national, page 6, the creation of the national ATC service support standards improvement units divided into east coast services and regional services upper air space services was the first key step?---Sorry this is page 7 do you mean?
PN943
Page 6 over to page 7?---Okay. Sorry what was the question.
PN944
I may have misunderstood your last answer, but I thought you said that they were already divided?---Yes the Third Horizon recommendation had them there, this report came out and we ratified that and continued with that work, which was the first key step.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN945
So what you should have said here rather than what you did say, was that these - this division between east coast services and regional services upper air space was already there but following the report we continued with that?---The recommendation was already there to split those and that was in the Third Horizon report, which I'm not sure if you've got a copy of that, which came out in November 2006.
PN946
Okay so there was a recommendation and it was implementing the recommendation of the Third Horizon report, not the CNS review?---It was ratified within the CNS review.
PN947
So what you should have said was, as a result of the CNS review the recommendation to divide east coast services and regional services was undertaken as a result of the Third Horizon report recommendation and the CNS review didn't convince us to do anything different, didn't suggest we should do anything different?---True.
PN948
Then there's a decision to appoint between six and nine procedure
specialists?---Correct.
PN949
Who made that ?---That was made by my managers that were working with me, that was Peter Martland, Paul Reidy-Crofts, John Moore, they got together and decided what sort of structure they needed and how many people they needed.
PN950
When was that?---They were appointed in early April, so it would have been some time after April between April and July I would anticipate.
PN951
So and is that decision recorded in writing?---Yes, I believe it is.
PN952
Six of those positions were offered to the potentially surplus employees?---That's correct, yes.
PN953
Now you already had people working as CNS ATMS?---That's correct.
PN954
Were their jobs the same as those that were offered?---Some are slightly different, some work within the projects area, but the broad scope of their job is the same, yes.
PN955
That's writing procedures?---No, it's not just writing procedures.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN956
What else is it?---They are involved with a lot of initiatives that we have, one example would be the rmp roll out, the rmp trial roll out, WA RU produce is another one, some of my people sit on service management groups for particular pieces of technology that we have.
PN957
Can I just stop you there, the first two that you mentioned, with the roll outs, are they projects?---Once again I'm not trying to be smart, it depends on your definition of a project.
PN958
Sure?---One is and one I would say is an ongoing trial of technology which has become a roll out into normal business.
PN959
When it's rolled out will that job continue?---Eventually no, not on that specific task.
PN960
All right can I ask you to turn to your attachment BJ1. Now this is the organisational structure starting at the general manger ATC level?---Yes.
PN961
That's the existing structure is it?---Yes, that is correct.
PN962
At the far right is the manager national ATC support?---That's correct.
PN963
That's you?---Yes.
PN964
Annexure BJ2 that's headed recommended structure, is that a recommended structure or an existing structure?---That was the recommended structure that came out of Third Horizon, it's almost exactly the same as the existing structure except for one area which isn't relevant to this proceedings.
PN965
Okay so is there not a chart with the existing structure in it?---The way that it sits on ADNET at the moment there's no charts on there, there's links through SAT which go to the different work areas.
PN966
Okay and if we look at this one, manager national ATC support is in view, do we then go across to the left-hand side to see standards implementation manager and then CNS support UAS and EOS and regional services?---Yes.
PN967
Is that where the CNS and ATM people are going?---Yes, there's some in that area there's also some in the ATC projects implementation manager area.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN968
Okay so how many are in - are they in this box or beneath it CNS support
ECS?---How many are in there now?
PN969
No, how many of the people that are potentially surplus going into that one. I can go through the names if that will make it easier for you?---Yes, can I just refer to this table here.
PN970
Yes?---We had all except for two were going into east coast services. So four were going to east coast services, two to regional services, or is it five, five and one sorry.
PN971
Five in east coast services and is that within that box, CNS support or is it beneath that box?---In addition to that box.
PN972
What does that mean, beside it or?---Yes, it's beside it, there's CSS supervisors and the CNS ATM specialists.
PN973
So there'd be another box beside that and is that beneath, east coast services beneath standards implementation manager east coast services?---Correct.
PN974
Okay that's with the five and one is regional services in the same
position?---That's correct.
PN975
Okay and the systems supervisor, Mr Dixon just goes into the box that says system supervisor?---That's correct yes.
PN976
Okay now so this was the recommended the structure by Third Horizon, they obviously didn't recommend those particular additions?---They did I think through their report. I don't have a copy with me, but I think they did.
PN977
Well when they recommended it they didn't bother to put it in their recommended chart is that right?---It's not in their chart, no.
PN978
Is that a recommendation like the recommendation you referred to from the other, the CNSS review report one that you draw from the report but which isn't actually listed there?---Sorry I'm not sure what the question is on that one.
PN979
Well we can say this at least, that they haven't put these positions in their recommended structure correct?---Correct.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN980
I just want to clarify this. In that box second from the top on the far left, CNS supervisors, is it supervisor or supervision ECS or supervisors?---Check and standardisation supervisors.
PN981
The CNS ATMs do they go below that or next to it?---Next.
PN982
Next to it so in the same position?---Same level yes.
PN983
That's what I thought you said, all right now can I ask you - we had some confusion about copying some documents I'm sorry I've only got one spare, which I'll hand to the witness. I'll try and assist Mr Mueller at least Commissioner. This document comes from Mr Boxall's statement proceedings that were in the Commission last year, if you can turn through the statement at the every end of what's extracted from the statement, is a document headed Airservices Organisational Chart. I think the evidence was this is the position prior to the SDE changes, do you have that?---Which chart did you want me to refer to? That one?
PN984
No, it's the first one, now that has chief executive officer and then next reporting to him Mr McLean at air traffic control, then
turning over the page we go to air traffic control and we have, if we go to the next page, if we take you through this very quickly.
I don't think it's contentious. ATS service support which is you and then if we turn to the very back page this is the old structure,
Mr Welch?---That's correct yes.
PN985
So that's the general manager at the top of ATC, now you weren't in that structure is that right?---Very shortly before we reorganised for about a month or two months.
PN986
They had some CNS ATM specialists in that structure on the SDE project, you see that on the far right?---Yes.
PN987
What was their role do you know?---I couldn't comment exactly, Mr Welsh could comment better than me on that one, I wouldn't even hazard a guess.
PN988
All right we'll leave that alone and so your area was separate from that and you had CNS ATM specialists in that?---Correct yes.
PN989
Now many of those people if not all of them did those jobs on secondment?
---Sorry I don't quite understand.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN990
You've got a number of CNS ATM specialists now?---Yes.
PN991
How many have you got?---At the moment probably six or seven.
PN992
Six or seven?---I couldn't give you an exact number.
PN993
Are any of these permanent appointments?---Some are permanent appointments, some are on secondments.
PN994
How many are permanent appointments?---Probably five, four or five would be permanent.
PN995
Yes and what roles do they have?---They are senior CSSA specialists.
PN996
Yes what do they do individually, we are only talking four or five?---Well individually I mean each person has a different skill set, I have one person in Melbourne he's largely responsible for team A procedures terminal area procedures. Another person in Brisbane he's involvement more along the towers environment because of the nature of his experience and also he sits some service management groups. I have two people who are a hang over from the previous structure of air space military liaison and they still take the bulk of that function at the moment, until we integrate that to the other roles. One person who largely deals with requests for change and the applications that we use for that. One person in Melbourne one who deals with documentation type issues. That's about it - sorry, one person in Sydney as well who looks after all the stuff in Sydney projects et cetera.
PN997
These are the people, these are the types of work that you intend - sorry this is the type of work that you intend that the six CNS ATM people undertake with their appointment?---Yes it depends on their skill set what we'd have them doing within the group.
PN998
All right now if the witness could be shown attachment the one to Mr Dixon's statement I think it is. Sorry it's Mr Ayliffe's is probably easiest AWA1, Civil Air 10 attachment (1) to Civil Air 10?---Yes.
PN999
We've had evidence from Mr Ayliffe and I think Mr Dixon this is the in a sense the position description of an operation supervisor,
are you familiar with that
all?---Yes.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN1000
You agree that the primary role of a supervisor operations is the overall responsibility for the division and air traffic service in his or her particular group?---It's a joint primary role within their group.
PN1001
So they have - I'm talking about the role the operation supervisor, is it that person's primary role whether somebody else has responsibility as well?---No, I don't agree that it's their primary role.
PN1002
I see?---Operation supervisor endorsement on their licence it would be their primary role but as the position within the organisation may have a dual function and one of those functions is procedures within their group, within a set portfolio.
PN1003
Do you disagree with the fact that this is the in effect, position description for operation supervisors in Airservices?---No, I don't disagree with that.
PN1004
Right and it's published by Airservices all right, so you say that where this document describes the primary role of a supervisor operations, it's deficient and defective because it doesn't, it's only one of the primary roles?---I'm sorry - we've I'm not trying to be confusing, but when we talk operation supervisor within the ATC environment, we're either talking about the role or the role that they perform within the ops room, which are - they are both called the same, but they are two separate things. If you're talking about the role as a job, yes it's correct. If you're talking about the op supervision within the room, as the operation supervisor qualification, then that's a different thing.
PN1005
So if we're talking about the job that they do, this document sets it out accurately?---Correct, yes.
PN1006
It sets out their primary role accurately?---Correct.
PN1007
Thank you, all right now just looking at 2.1 the CNS ATMS people won't do any of that at all will they?---They won't do the second sentence no.
PN1008
They won't do the first sentence either will they?---I disagree, a CNS ATM specialist are responsible for the provision of air traffic services within a particular work group. The work that they do supports the - - -
PN1009
You've left a word out though haven't you, they won't have overall responsibility for the provision of air traffic services in the work will they?---I guess it depends how you read it, in the strict way that it's written yes I agree with you.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN1010
Thank you, what they do is we'll write some procedures which will be relevant to the work that's done and which will be used by them
now we know the
AON's?---They don't just write procedures but yes I see your point.
PN1011
All right now apart from writing procedures what do they do?---Involved in project work and in order of the safety work, involved with the groups, procedures development, which is not writing procedures.
PN1012
They don't do any air traffic control work?---They don't work as an air traffic controller at the console, no.
PN1013
In fact, they are not required to hold a licence?---Not required to hold a valid one no.
PN1014
They don't need any of the ratings or endorsements?---Not current ratings or endorsements no.
PN1015
No and they don't supervise any air traffic controllers doing air traffic control work?---No.
PN1016
Just looking down at the breakdown of responsibilities, there in 2.2 if one leaves out writing and I think you said developing procedures, we'll come back to that in a minute, the CNS ATM people won't do any of those things, will they?---No, that's incorrect.
PN1017
Yes?---Following responsibilities they have responsibilities for safety, operations manual compliance, environment, administration.
PN1018
And those responsibilities are in relation to development procedures?---In relation to their work, yes, not as a core air traffic controller sitting at a console no.
PN1019
So they are - they have things which touch on all of these things, because they write procedures about them, but they don't have to
do with these things in relation to hands on air traffic control or supervision of air traffic
controllers?---Not controllers sitting at a console doing their day to day work, no.
PN1020
In terms of the systems supervisor they don't supervise people, they supervise the system, correct?---No, that's not strictly correct. They don't supervise air traffic controllers, they supervise the TATS flight data coordinators, on a day to day basis they sit by with the admin staff within the room as well, they hold operational command authority for the whole FIR within an ops centre.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN1021
What's FIR?---Flight information region, we have two, one in Brisbane and one in Melbourne.
PN1022
So they don't have the close contact with again the air traffic control at console level that the operational supervisors have?---They have close contact, they don't supervise air traffic controllers directly, if that's the question that you ask.
PN1023
Can I ask you to look at this document please? Now I don't know that you've seen this either. This commences at the bottom of the second page with an email from Mr Welch to a number of people on the subject of opportunities for ATC staff outside the ATC group. Mr Welch says he's been defining opportunities for operations supervisors who've decided not to apply for the new role within the ATC group and wish to further expand on opportunities that might exist outside the group, with training safety and management systems project manager and such like. Now there's then attached to the document a number of references to various different types of positions. Were you aware that this was going on? There was a sweep across the organisation looking for positions?---I assumed it would have been going on, it's a requirement of the certified agreement to find to search for suitable - - -
PN1024
So you're familiar with the certified agreement?---Correct.
All right can I tender that Commissioner.
EXHIBIT #CIVIL AIR 12 EMAIL FROM MR WELCH TO STAFF RE OPPORTUNITIES FOR ATC STAFF
PN1026
MR FRIEND: Can I show you another document now this one you did get. Now this is in July 2007, 12 July from Mr Welch, he says he's attached a letter for use to those operations supervisors who applied and were successful don't have to use it - do you recall seeing this?---Yes.
PN1027
Over the page attached to the back of the letter, are the OS employment opportunities. As I read it what Mr Welch is suggesting to tell the surplus operational supervisors that these are the possible employment opportunities that might be available for them, is that correct?---I read that as well, yes.
PN1028
Now is there anything about the ANS jobs CNS, I can't see it?---Mr Welch is writing procedures as being CNS ATM specialist job.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN1029
Where is that?---Dot point two under ATC group.
PN1030
Yes, standards, the word procedures?---There's three parts in there, standards, procedures and project management.
I see all right. Can I tender that Commissioner.
EXHIBIT #CIVIL AIR 13 LETTER FROM MR WELCH TO STAFF RE OS EMPLOYMENT OPPORTUNITIES
PN1032
MR FRIEND: At that stage did you have any jobs in mind? Did you send this out to anyone, this letter?---This letter came out to most of the people from SDL managers, I didn't send it out because I didn't have any of these people working for me at the time.
PN1033
Yes, I see. Did you have any - - -?---Sorry I did have one person working for me at the time, Rob Grant, who we didn’t realise at the time that he was part of that group.
PN1034
Did you have any positions in mind when you read this?---I had quite a few, yes.
PN1035
Were they - quite a few, how many?---Well from the AOM selection out of the system supervisors we lost quite a few out of that area. So that was one, we needed people into the ATM specialist roles, we're very proficient in those areas as well.
PN1036
Those were the ones that you were thinking of at that stage?---Correct, yes.
PN1037
So this must have been before you made the decision to appoint six to nine to the CNS ATM positions?---I don't know the date trail on that I can't say yes or no at this point in time.
PN1038
But we do know that you didn't from what you've just said, you didn't have the CNS ATM positions in mind around July when you got this letter?---I can't comment on that, I don't think we - I had a date on that, I didn't have a date given to me. We had the CNS ATM positions in mind from the appointment of my managers in April, when we were working on the structure which was putting the procedures, the ATM specialist roles in the check and standards.
PN1039
Yes?---They worked on the exact numbers I don't know what they came up with, what numbers they required. It would have been around a similar time.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN1040
All right but when you gave your answer just a moment ago about what was in your mind you didn't mention the CNS ATM specialist did you?---Yes, that was in my mind at the time.
PN1041
You didn't mention it.
PN1042
MR MUELLER: Well before my friend goes on I don't want to develop this objection perhaps in the witness' presence, but I have a quite different recollection of what Mr Joiner said in response to the question that my friend is inferring - in fact I wrote it down.
PN1043
MR FRIEND: It's sufficiently developed to make it useful for me to pursue it any further.
PN1044
THE COMMISSIONER: Yes.
PN1045
MR FRIEND: It may be a question of reference to the transcript.
PN1046
THE COMMISSIONER: Can I indicate to you that I propose to rise at 12.30 today, so at a convenient time in your cross-examination.
PN1047
MR FRIEND: Yes, thank you. Can I ask you to look actually that might be a convenient time, because it will take a little while on the next document Commissioner I think that would be better to break now.
PN1048
THE COMMISSIONER: Very well, yes I'm sorry I've just got to attend to another matter. We'll resume at 2.15.
<LUNCHEON ADJOURNMENT [12.22PM]
<RESUMED [2.21PM]
PN1049
THE COMMISSIONER: Sorry to keep you waiting.
PN1050
MR FRIEND: Thank you Commissioner.
PN1051
Can you have a look at this document please Mr Joiner. Now I think we can ignore Mr Joiner the first part of this document which seems to have been generated perhaps in the anticipation of the summons. But I want you to look at the next part from Peter Martland at the bottom of the page to Brian Joiner, first page you see that?---Yes.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN1052
This check and standardisation review conducted by operational team we made recommendations to more closely align CNSS with procedures development, do you see that? And there's a recommendation:
PN1053
Now we need to advertise for procedure specialists for individual groups. Three for ECS, three for UAS/RS-
PN1054
You see that? Then the second last point:
PN1055
Term transfer two to three years is desirable-
PN1056
Yes, now these are the positions that were offered to the surplus employees, the genesis of them is that right?---That's correct, yes.
PN1057
So when we're looking at that we're look at three ECS employees, what was thought to be desirable, correct?---That's correct, yes.
PN1058
A term transfer of two to three years was suggested to be desirable,
correct?---Correct.
PN1059
So that's not permanent appointments, correct?---Not in this email, no it doesn't touch that point.
PN1060
The pay scale to be FPC, form performance controller plus 10 per cent?---Yes.
PN1061
Yes and so that's not operational supervisor band is it?---Yes, it is.
PN1062
Form performance controller?---Plus 10 per cent.
PN1063
Or equivalent band progression to attract suitable applicants and it's in fact a release. Then attached to that is a position description, do you have that?---Yes.
PN1064
The date on the bottom right-hand corner of that page is 26 April 2006 which is the date on the bottom of all but one of the positions that have been offered to the relevant employees, is that when the document was initially issued?---I would say, I'm making a supposition here that that's when the template was issued that the document was put up.
PN1065
I see all right and that describes the level as relative to ATC band?---That's correct yes.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN1066
What does that mean?---Depends on what level the person is, is what we paid if they came across into this position.
PN1067
So if they were an ATC they'd get paid ATC?---Yes, what band they were within the pay range, they get paid at that level when they came across.
PN1068
Turning over the page, you've got essential qualifications, hold an ATC
licence?---Yes.
PN1069
Recent experience in ATC operations relevant to ECS or UAS/RS service delivery, those were things that were seen as important at that stage?---In this one it's got hold an ATC licence, I think subsequently it was hold or have held an ATC licence.
Yes will you have a look at this one while you've got that with you. I'm sorry I should tender that first Commissioner.
EXHIBIT #CIVIL AIR 14 POSITION DESCRIPTION
PN1071
MR FRIEND: Now that of course has got the same date at the bottom of the page. From the title, is that the same job?---The only difference with this one is the reporting to the projects implementation manager rather than the standards improvement managers.
PN1072
Right so the standard improvement procedures specialist is the same as the CNS ATM specialists?---They should be the same, I believe that subsequent to these they became one position description rather than two.
PN1073
Can you tell us which of these documents was created first?---No, I can't.
PN1074
All right the one which I recently gave you has spaces for applications to and closing date, does that indicate anything to you?---No.
PN1075
No, all right that one has also as qualifications hold or have held an ATC licence, does that indicate anything about the timing?---No.
PN1076
You said before in relation to the first that you changed, that hold an ATC licence was changed to hold or have held?---Yes, I'm not sure which came first. I would assume that the one if the first document you gave me came first. I can't swear under oath that that came first because that might have been prepared by Peter or Paul, as opposed to this one being prepared by John in isolation so they would have been coincident with each other.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN1077
Yes and what about the fact that one is referring to ATC projects, does that give you any indication?---Yes, that's why I'm saying that's why I assume that the second one you gave me was being prepared by John Law.
PN1078
Who is?---Who is the projects manager.
PN1079
The second one has an essential qualification, have a thorough understanding of safety management system, change management requirements with Airservices Australia?---Mm.
PN1080
All right now this is the type of job that eventually became the jobs that were offered to employees correct?---That's correct, yes.
I tender the second one.
EXHIBIT #CIVIL AIR 15 SECOND POSITION DESCRIPTION
PN1082
MR FRIEND: Can the witness be shown - well we'll give him one of the PDs offered, given to these employees, for instance the one to Mr Patterson, if the Commission wants to turn that up, save for one word I think in Mr Boxall's inclusion of the word "Perth" I think they're all the same. So this is the position ultimately offered?---That's correct, yes.
PN1083
You see there qualifications, it's got demonstrated experience in ATC
operations?---That's correct.
PN1084
Now what's the difference between that and having a thorough understanding of the safety management system and change management requirements within Airservices Australia?---Sorry, I'm not quite - - -
PN1085
Yes in the second document which is - I gave you this afternoon which is Civil Air 15, the one which has hold or have held, the second essential qualification there is have a thorough understanding of safety management system and changed management requirements?---Yes.
PN1086
Whereas in the one that was ultimately offered, we have demonstrated experience in ATC operations, is there a difference in those qualifications?---In the one you've just handed me under the desired qualifications has a thorough understanding of the changed management processes and requirements within Airservices Australia.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN1087
So they are different things, yes?---Yes.
PN1088
Yes so having a thorough understanding of safety management at some stage, became more essential?---No, the - - -
PN1089
A desire?---Yes, that's correct.
PN1090
Right thank you. Now could I next ask you to look at this document in fact it's two documents together. The first one is an email from Lauren Benson to Brian Mueller to which you are copied of 17 August 2007. Do you recall that?---Yes.
PN1091
It has a list of attachments, one of which is procedure specialist list, SLS, do you see that?---Yes.
PN1092
Now I think you can tell me if I'm wrong and Mr Mueller might correct me as well we've been given a document this morning which is the second document the spread sheet, which is procedure specialist list doc XL which is the attachment is that correct?---Sorry this one here that I've got?
PN1093
Yes, it is?---Yes.
PN1094
All right now it says in the email that you were looking to review your team of procedure specialists who are on varying agreements with position descriptions, that was right at that time was it in August last year?---That's correct, we were looking at the pays for those particular people.
PN1095
Is this a list of all the procedure specialists, the attachment?---At that time, yes.
PN1096
Okay and so these are the people that were doing the sort of work that the CNS ATM people will be doing?---That's correct, bar two people in that list.
PN1097
Are they the two senior managers?---No, Ken Hickey and Damien Vale were - they were - they're space military liaison specialists when they came across to me. Mr Hickey retires at the end of this year, Mr Vale different qualifications.
PN1098
Okay so the current level of those people sets out the level, the position that they held substantively, is that right?---Yes, that's correct.
PN1099
Some of them I think you said before lunch were on secondment and some were not?---That's correct, yes.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN1100
So Mr Kevin Carey we can leave out the people on AWA's, Mr Kevin Carey, he is category B level 13?---That's correct, yes.
PN1101
So he's come from a category B work site and at the level 13 for an ATC?---That's the position within the certified agreement yes.
PN1102
Yes and that's the basis of his pay?---Yes.
PN1103
Peter Close, category A Sydney level 2?---That's correct.
PN1104
ATC level 2, Nicole Morrow Woods category D level 3 ATC non shift. Now so she's paid at an ATC rate, level 3?---Yes. I'm assuming these are right on the table, so I agree.
PN1105
Well you've got no reason to doubt them? If this, we've been given this table as the attachment to this email, is there any reason to suspect that it might not be correct?---All I'm saying is I don't know the individual pays of people at any particular point in time, so I'm assuming that it's correct yes.
PN1106
Yes all right and do you know what non shift means there?---It's just a classification they get paid the ATC rates but they don't get the same leave entitlements that an ATC on shift would get.
PN1107
Lindsay Bishop category B level 13, ATC non shift?---Yes.
PN1108
Now Mark Hind is a team leader?---Yes team leader pay.
PN1109
Team leader is equivalent to operations supervisor?---Correct, yes.
PN1110
But all of the others at one or other levels are the ATC rate?---Correct yes, except one who is at the ASA.
PN1111
But that's one we've already got rid of because you said ignore Damien Vale and Ken Hickey?---Correct.
PN1112
Okay so before they came to this job each and everyone of them, apart from Mark Hind was an ATC not an operations supervisor or a team leader?---On this list, that's correct.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN1113
These were all the ones that you had at that time?---In August 2007 that's correct.
I tender, I don't know Commissioner if you prefer they were tendered as a set.
EXHIBIT #CIVIL AIR 16 PROCEDURES SPECIALIST LIST WITH ATTACHMENT
PN1115
MR FRIEND: All right Mr Joiner now you recall that the document I showed you a moment with a position description attached which is the one with the heading, rather the email from a few days ago, do you have that there?---Yes.
PN1116
Indicated that it was thought there'd be three people in the eastern unit can you have a look at this document please? This deals with and you may not have been aware of this, this deals with the direct appointment of people to the CNS positions. Are you aware of that being an issue?---Sorry I'm not quite sure of the question on that one.
PN1117
Yes, rather than advertising the jobs, picking some people and appointing them directly?---There was discussion about whether that was an appropriate way to go about that.
PN1118
Yes and eventually approval was given to appoint people directly?---That's correct yes.
PN1119
In fact as you've said it was decided to appoint five of the six to ECS?---That's correct yes.
PN1120
Had anything changed between July when there was a document that says it was proposed to have three persons appointed to ECS and October when you decided to appoint five?---Yes, there were two things that changed. One was we decided that having a person in Perth would be advantageous because of the amount of work that we were doing, and the second is that a managers meeting that we had within my group, that we didn't need three for regional services we needed more for east coast services, that's where the bulk of the work was.
PN1121
Can you tell me if there were any of these decisions that you made about this were documented anywhere?---They may be on the minutes from the meeting I can't say at this time.
PN1122
Because we haven't seen any documents that show those decisions were minuted in any way. It looks I suggest to you rather like you've got the eight positions that need to be filled and decided to slot a couple more of them into the CNS position, would you accept that?---I would take a couple of extra people if they were available, yes.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN1123
All right can I tender the email of 25 October.
EXHIBIT #CIVIL AIR 17 EMAIL DATED 25/10/2007
PN1124
MR FRIEND: If you go back the statement you say in paragraph 51 that what's been offered to employees is the same salary as was prescribed to their field position?---That's correct, yes.
PN1125
You suggest that that was the practise in the past?---That's correct.
PN1126
That's consistent with the table I've just taken you through which shows people all bar one, being paid at the ATC rate?---That's correct, yes.
PN1127
So that insofar as Airservices is concerned the work warrants payment at the substantive rate of the employee doing it?---That is correct, yes.
PN1128
In other words, it is not work that ordinarily attracts the rate of an operations supervisor?---That is not correct.
PN1129
You pay people on the basis of the ATC rate don't you,?---We pay people on the basis of the rate that they are getting paid in the field, because that's normally reflective of their experience that they have, they bring into the roles.
PN1130
Yes so that's the type of - that's the value that you give the work, the ATC
work?---Once again I say we pay it at the rate that people are there. They bring different skills in so different people have a different
value, so we don't pay any one particular rate in that role.
PN1131
You pay them what they are paid on the certified agreement?---Or their contracts.
PN1132
Or their contracts now can you have a look at one of the letters of offer turn to that of Mr Patterson for example, in Civil Air 4, again using him again, I'll hand that up to you. It's true to say that what you've offered Mr Patterson - have you got that letter?---Yes.
PN1133
First page fourth paragraph down, is level 13 category B plus 10 per cent, which is the rate that he had before. It is also true to say that that's above the standard remuneration for the position?---It's true to say that that's what's in the letter, yes.
PN1134
Did you write the letter?---I didn't write the letter, but I signed it, so therefore it's my letter, yes.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN1135
You didn't sign something that you thought was wrong did you?---I didn't sign something I thought was wrong, but yes it is wrong.
PN1136
It is wrong, you've discovered it's wrong since you got the Civil Air submissions in this case did you? Is that when you found out it was wrong?---No, I think it might have been before the Civil Air submissions.
PN1137
It was before that, so what did you do about telling the employees?---I wasn't the general manager at the time, when it was found out to be wrong. As you'll see from the signature, I was the acting general manager at the time.
PN1138
I see, so when you found out you told the general manager?---I don't know if it was told to him or not.
PN1139
No when you found out, did you tell the general manager?---No.
PN1140
How did you find out?---I can't say, I'm not 100 per cent sure, it might have been verbal, it might have been written.
PN1141
Well you've just told us that you think it was before the Civil Air submissions?---I don't know.
PN1142
You don't know, it might have been it might not have been?---I don't know.
PN1143
Does it trouble you to have signed a letter that contains a falsehood like
that?---Yes.
PN1144
So but you don't remember when you found out?---Pardon me?
PN1145
It troubles you but you don't remember when you found out?---No sorry, I don't.
PN1146
Is it something that happens all the time?---What inaccuracies in letters or finding out about inaccuracies?
PN1147
Finding out that you made a fairly significant mistake in a letter?---Sometimes you make mistakes.
PN1148
Is it something that happens all the time?---No.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN1149
Yet you can't remember when you found out?---No, I can't remember.
PN1150
What did you do when you found out?---Just stated I don't know.
PN1151
You don't know what you did, does that mean you did nothing?---I'm not sure what you're asking by the question. My assumption was the general manager knew as well.
PN1152
All right who authorised you to make a commitment to pay above standard remuneration?---The offer isn't above standard remuneration as the jobs have been scoped by the people in change.
PN1153
Have a look at the second sentence in the letter, the paragraph where you told the employees the wrong thing. This is a commitment which is made above standard remuneration for this position. You made that commitment on behalf of Airservices correct?---That's what is written in the letter, yes.
PN1154
Who Mr Joiner, you made that commitment on behalf of Airservices didn't
you?---That's what's written in the letter, yes.
PN1155
Yes who authorised you to make that commitment?---There was no need for authorisation the jobs are scoped up to team leader level. So I needed no authorisation to make an offer at that level.
PN1156
So where you say this is a commitment that is made above standard remuneration, you knew at the time that it wasn't above standard remuneration?---The remuneration for the positions is up to team leader levels, so as I stated before the letter is inaccurate, yes.
PN1157
But you've told - you knew at the time it was inaccurate though?---Yes, I must have known at the time.
PN1158
You must have known at the time it was inaccurate. You knew at the time you were lying to these employees didn't you? You've told them we're going to pay you extra above the remuneration for the position and you knew that was wrong at the time, didn't you?---I can't answer that one.
PN1159
You can't answer that because the only answer that is consistent with what you've said already, is yes, isn't it?---Yes, the letter is inaccurate.'
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN1160
Yes we know the letter is inaccurate and you've just told the Commission that you didn't have to have authorisation to pay at supervisor level because that was within the standard remuneration for the position, but you've told the employees at the time that it was above standard remuneration. You knew at the time that you were telling them something that wasn't true?---That's not correct, no.
PN1161
Okay so it was true that the offer was made above standard remuneration?---No, that's not true.
PN1162
What does it say? Mr Joiner can I suggest to you that you are desperately trying to avoid stating the obvious, which is that you've changed your story when you found out how important this issue was to this case?---No, that's not correct.
PN1163
All right look at paragraph 56 of your statement you say that:
PN1164
Throughout the whole process of managing potentially surplus employees those affected have been engaged by their service to rely on management.
PN1165
You don't have any personal knowledge of that apart from what's been told to you I assume?---That's correct.
PN1166
So if employees have given evidence to say that that hasn't happened, then you can't dispute it from your own personal knowledge, correct?---Correct.
PN1167
You made some comments about Mr Sweeney saying that between 2003 and 2007 he spent most of his time on the development of airborne
separation standards, he disputes that, he says he spent some of his time doing that? Do you accept
that?---Yes, that would have been part of his job.
PN1168
In relation to Mr Dixon you say at paragraph 49 that:
PN1169
As a local operating instructor from Perth TATS transition he was given extensive training in the operating system above and beyond that required for a normal ATC.
PN1170
He says that you're confusing TATS operations instructor with local operations instructor?---That could be correct, yes.
PN1171
Mr Dixon has given evidence that he knows of no one who has taken up, no local operations instructors who has taken up the ECS role, would you agree with that, not that Mr Dixon knows of no one, but do you know of anyone that's taken it up?---My understanding is and I'd have to check to confirm for validity that there's a couple of people that either are TATS operating instructors or local cooperating instructors within those roles.
**** BRIAN WILLIAM JOINER XXN MR FRIEND
PN1172
The point Mr Dixon makes is that TATS operating instructors has got a lot more training , he wasn't one of them, he was a local operations instructor and what you're really talking about is people moving into system supervisor are the TATS people not the LOIs?---That may be correct.
PN1173
That may be correct. Nothing further.
PN1174
THE COMMISSIONER: Right before you sit down, can I ask you two questions please. I heard in earlier evidence that an op supervisor could decline to implement a procedure that was passed down on the basis that they considered it to be unsafe and then they could refer it back up for there considerations, is that right?---That's an accountability of anyone within the organisation, yes.
PN1175
With anybody?---Within the organisation.
PN1176
So it could be an ATC as well?---Correct yes.
PN1177
Secondly, just looking at that attachment, Civil Air 16 the various rates, part of the questioning that you've received has been about the number of people that have been seconded?---Yes.
PN1178
If I look at that it seems to be based upon giving you some flexibility in the past to actually second people from any level so that you could fill vacancies rather than having a structure in place? Have I put the question, you see what I mean?---I can answer the question yes.
PN1179
Would that be a correct impression?---It was also to get a balance between experienced people and less experienced people, so you could give less experienced people some development as well outside of just purely doing ATC.
I see thank you. Mr Mueller?
<RE-EXAMINATION BY MR MUELLER [2.56PM]
PN1181
MR MUELLER: Just in relation to that last question might there yet be occasion to do that within the new structure as it exists?---Sorry to second people?
PN1182
Yes?---Yes we quite often second people also when they lose their licence on medical reasons for a period of time to give them alternative valuable employment.
**** BRIAN WILLIAM JOINER RXN MR MUELLER
PN1183
I take it that in that case they work side by side with the others?---That is correct, yes.
PN1184
Now I think a question was put to you along the lines that either explicitly or implied the suggested that the work of the specialist jobs that have been offered, consistent of just procedures work and I think the answer that you gave was that there was more involved and you gave some instances of the work. You referred to RMP and the W, Western Australia route review and you also mentioned project work safety and procedures development. When you referred to safety what were you alluding to?---There's a couple of things, one they might be involved in actually doing the safety assessment themselves on the change or they could be involved as part of a team looking at the hazards and mitigations for implementing change.
PN1185
Yes now what is your expectation about the need for ongoing work to be performed in this group?---The ongoing work is more and more every day, it's always there and since we originally scoped the groups back in the start of last year, it's a lot more than what I actually thought as well.
PN1186
Now do you still have with you in witness box there a copy of Civil Air 12 which is a copy of an email I think from Mr Welch which - - -
PN1187
THE COMMISSIONER: Dated 6 July 2007?---Yes to - from Wayne - - -
PN1188
MR MUELLER: Yes, that's right, that's all I need to know. Mr Emery what's his position?---General manager of business development.
PN1189
That's one of the business groups within Airservices?---That's correct, yes.
PN1190
Do you know whether or not similar canvassing was done amongst other general managers of other business groups?---I can't swear under oath that it was, but I assume that it was, yes.
PN1191
Okay just a matter of clarification the email that you were taken through which has become Civil Air 14 and that's the one which at the top is from Mr Reidy, there's an email from Mr Paul Reidy Crofts of 12 March. It's a Mick Welch document?---It will take me a moment I've got so many here now.
PN1192
It's the one that has the numbers of proposed appointments?---Yes, yes.
**** BRIAN WILLIAM JOINER RXN MR MUELLER
PN1193
Who is Mr Reidy Crofts first?---Mr Reidy Crofts is the standards improvement manager for regional services and operative space services.
PN1194
Yes and did he have a role in relation to the check and standardisation review report?---No, he wasn't in the position at the time that report was written.
PN1195
Who is Mr Martland?---He's the standards improvement manager for east coast services.
PN1196
Was he involved in the compilation of the unit?---No, he was appointed in April as well.
PN1197
Did they have a role in relation to implementation of - or taking action pursuant to the report?---Yes.
PN1198
What was that role?---All the recommendations out of the report were put into CEA which is a register of action items arising from such reports and audits and those recommendations get assigned to a particular person. Most of those recommendations were assigned to those two gentlemen.
PN1199
Do you know whether that process happened in this case?---It's happened to a certain extent, we haven't been able to progress fully the recommendations out of the report, due to the fact that we haven't got the staff in place that we are required to do that.
PN1200
Yes, I think you will have amongst the documents with you, that you have in the witness box, an example of the position description that was actually issued to the employees with whom we are concerned in this proceeding?---Yes.
PN1201
Yes you have that one and that's the one that on the second page under the heading "Qualifications", the subheading, Essential, the second dot point refers to:
PN1202
Demonstrated experience in ATC operations relevant to ECS or UAS/RS service delivery.
PN1203
?---Yes.
PN1204
Can I ask you do you agree with the proposition that that is an essential qualification?---Yes.
**** BRIAN WILLIAM JOINER RXN MR MUELLER
PN1205
Yes, I think that's all I have thank you.
THE COMMISSIONER: Yes, thank you for your evidence Mr Joiner.
<THE WITNESS WITHDREW [3.04PM]
PN1207
MR MUELLER: That is our evidence. There is one matter that I did mention to my learned friend that I will assert from the bar table and about which I think there is no controversy. I might as well mention it now and that is that there is a group of operations supervisors, five in number in Sydney and one in Cairns who were the subject of the terms of settlement that involved making a redeployment offer by a prescribed date, which is now past. I just wish to indicate that no such final redeployment offers were made in respect of those employees and the intention which has been put into effect in the case of one of them already, is to make offers of voluntary termination. Now I suppose it falls to me to make submissions .
PN1208
THE COMMISSIONER: Or not.
PN1209
MR FRIEND: Usually in the Commission it goes the other way.
PN1210
MR MUELLER: I'm not fussed. Well as I - - -
PN1211
THE COMMISSIONER: I'm sure Mr Friend wouldn't mind if you have two goes at it or three.
PN1212
MR FRIEND: Yes, can I hand up an outline. The errors of which I apologise for in advance, they came down here in draft and I thought it might take a little longer in the hearing, but they are not very substantial.
PN1213
THE COMMISSIONER: Yes.
MR FRIEND: I don't know if you want to mark that Commissioner, if you have a moment to read it.
THE COMMISSIONER: Better to mark it.
EXHIBIT #CIVIL AIR 18 OUTLINE OF SUBMISSIONS
PN1215
MR FRIEND: My learned friend said in his opening remarks that you get the odd ships that pass in the night, and to some extent I think that's true, if one looks at the outline of submissions of Airservices they really to a large extent ignore the provisions of 7.10.1(b) and seek to substitute a test on the basis of whether or not the position that's offered is suitable and if one looks at their evidence and the cross-examination of our witnesses that's been made over the last two days, it all goes to the question in this regard of whether the jobs that are offered to the potentially surplus employees are suitable for them.
PN1216
THE COMMISSIONER: Or whether they can do them.
PN1217
MR MUELLER: Or whether they can do them, but that's not the test. The test is it's got to be the same level, the same geographical location, which we don't have to weigh out and the same job function. Really Airservices submissions on same job function they should be all the words and of course, you can't do that. The starting point is obviously the agreement itself. We accept that you read the agreement as a whole but you start with the words that you're dealing with. The whole of 7.10 is directed to determine whether or not an employee is entitled to a redundancy payment and in that circumstances that entitlement arises and how much that payment is.
PN1218
Again, some of the Airservices submissions we rather apprehend are going to talk - make the submission that it's about ensuring people have the maximum opportunity for redeployment. It certainly contains within it provisions that allow for people to be redeployed and to give them an opportunity for redeployment into appropriate positions. But it also, and its, the real point of it is to give them a redundancy payment and an offer of voluntary redundancy if they prefer the requirements. 7.10.5 if you like is the verb of the whole thing because that says that once all the other options have been completed and we accept that they have to be completed, then the employees must be offered voluntary redundancy.
PN1219
So as I said in opening the options, the matters available have to be dealt with are really all contained in 7.10.3, apart from the step of having employees declared potentially surplus and we don't need to deal with that here, that's been done. The first thing is Civil Air has to take steps to ensure that they consist in non affected areas, affected areas are filled by redeployment and some of the evidence that we've received today in that case, sorry Airservices took some steps to cast around and see what positions could be found. (b) we don't need to worry about in 10.3. 7.10.3(c) where you are able to perform duties if a vacancy sufficiently either immediately or within a reasonable period or after training you should be redeployed. Will take all reasonable steps consistent with the interests, to - of Airservices to redeploy into suitable vacancies of equal classification.
PN1220
Then employees may be placed at their higher duties allowance and get promotion. They can apply for suitable advertised vacancies and get considered in isolation. Redeployment is voluntary and matters in regard to new duties relative, efficiency, job swapping and training. But all of that is subject to a principle and it's expressed as such and it's unusual Commissioner to have this sort of glossy provision like this in a certified agreement because what we've in effect got is something like the object session of a piece of legislation. This is a principle that you apply in looking at all of this. It is that a person can't get a redundancy entitlement if they haven't been redeployed. If they've refused a reason for an offer of reasonable alternative employment.
PN1221
If it stopped there the argument would be about suitability and a whole range of other things. But it doesn't stop there, it says exactly what reasonable alternative employment is. Same level, same job function and same geographical location. In their submissions Airservices rely upon the previous version of the agreement and the history of the provision and say that at paragraph 19:
PN1222
At 7.10.1(b) was not a feature of the redeployment redundancy provisions previously.
PN1223
Then they seek to avoid same function by saying it means something else. Well and I don't fully understand what they say, so I'll have to hear what Mr Mueller says, but so far as we can deal with the matter, it's our submission that the same job function, is an expression which is newly inserted into the agreement and therefore must be given some meaning. Just on the ordinary principles it should be given meaning anyway. But if the parties have consciously changed what previously existed, one would be even more careful to ensure that it's given some meaning.
PN1224
As we understand the evidence the CNS ATMS positions were pre-existing. That they were on the whole, project related and as we understood it, and there is some conflict on this with Mr Joiner, as we understood it mostly on a seconded basis. Now there are a number of areas where there is conflict with Mr Joiner's evidence Commissioner. We are driven to the submission I think on the basis of that evidence Mr Joiner was not prepared to make what were obvious concessions, he was not prepared to accept things which were on their face, obviously correct and sought to prevaricate a number of his answers in areas where the documents were against him.
PN1225
I don't put it any higher than prevarication Commissioner but it is a conflict and it's my submission that the evidence of the Civil Air witnesses should be preferred. It's clear in any event that the salary paid to the people in the CNS ATMS positions is that the same as their substantive position. In paragraph 9 we've got a word left out, refer to February 2007 report it should be, at the beginning of the paragraph on the first page. Although Mr Joiner says that that had a finding and a recommendation about the creation of these provisions it probably didn't. That we - Mr Welch sought throughout the organisation positions that might be suitable for redeployment. An example of that is the letter of 12 July 2007.
PN1226
He came up with a number of them and they are identified in the undated letter of 2007. You will see in paragraph 13 you've got the words "query does" crossed out and in fact, it doesn't - it's Civil Air 13 and when Mr Welch wrote in July to people about the possible prospects of redeployment, he didn't refer to any of these positions. That's the history, if Airservices created real positions, the same level, same job function its true then there would be no argument. But we think there's a question mark over these positions, given the history and the way the documents show they've been created. That may be relevant to considering whether they truly are at the same level and truly are at the same kind of function and I don't put it any higher than that.
PN1227
We then look at and I should say that system supervisor position is not in the same category, that evidence is not relevant. The question of whether the jobs are at the same level we say that level means classification level and also includes things like authority, responsibility, seniority and salary. Now it seems - it's not necessarily clear, but the letters of offer are very clear, saying that this is payment and at a higher level than it should be. It's very odd in our submission for Airservices come here and say that that was just an error and nothing more. In my submission clearly unsatisfactory evidence about how it occurred. It seems clear that the work that is to be done, by people, is the same work as is currently done by CNS actions and that that is remunerated at any air traffic controller.
PN1228
Now the fact that a person is paid at a rate which is higher than the value that the organisation assesses the job at, doesn't mean that the job is at the same level. The organisation assesses these jobs at anything when you have air traffic control level. In those circumstances it seems clear in our submission that they're at a lower level than operation supervisors and merely having salary maintenance which may go on forever, doesn't change the level of the job. It doesn't say in the provision same remuneration for the same pay. It says same level and level has to do with status in the organisation.
PN1229
THE COMMISSIONER: But if I look at the attachment to Civil Air 16, can I form any view as to what the level is?
PN1230
MR FRIEND: Yes, you can form a view that the level is at any ATC level. In other words, these jobs are not specific and if you look at the Civil Air 14, I think it is, Civil Air 14 Commissioner. We've got the bullet point there, pay scale to be FPC plus 10 per cent or equivalent then progression to attract suitable applicants. They give a plus 10 per cent to attract people across but they keep them at their same, their ordinary level when they go across. Now that suggests that the roles within the organisation are seen at the ATC level but the people are given a pay that they are already on to get them to go across to them. Because what's happening with the surplus employees is that they're not getting the choice of being attracted into the job, they're being told you have to take it.
PN1231
These are jobs that most of those people were doing it in August were at ATC, one of them was a team leader. There is really no satisfactory explanation for saying they now need a whole group of extra people and not just people like that. People do the same work and Mr Joiner's evidence was that it was the same work but they've all got to be at operation supervisor level and that frankly, doesn't make sense.
PN1232
THE COMMISSIONER: Sorry, what was the last bit?
PN1233
MR FRIEND: It doesn't make sense.
PN1234
THE COMMISSIONER: But yes, you say that they've all go to be at operational supervisor level?
PN1235
MR FRIEND: That's all of the six people that are offered these jobs.
PN1236
THE COMMISSIONER: Yes.
PN1237
MR FRIEND: Yes are operation supervisors.
PN1238
THE COMMISSIONER: Yes, but I thought the impact of the evidence was that it doesn't exclude operation supervisors?
PN1239
MR FRIEND: Correct it doesn't exclude them, it doesn't exclude them, but it doesn't mean that the job, the substantive job is at that level just because an operation supervisor can do it.
PN1240
THE COMMISSIONER: Yes.
PN1241
MR FRIEND: You expect them to be able to do it, but the substantive job and Mr Joiner's evidence was quite clear, that those people are doing the same job, that's at ATC level. If they happen to be an operation supervisor they got that remuneration, but that doesn't make the job at op supervisor level and that's the real point.
PN1242
THE COMMISSIONER: Well one of those answers that I got to - a question that I put in relation to the attachment to Civil Air 16, was that the reason there's such a variance in rates, part of the reason I suspect one of the reasons was the history of the secondment project.
PN1243
MR FRIEND: Yes.
PN1244
THE COMMISSIONER: But part of the reason was that you bought in people with different levels of skill as a way of also training them.
PN1245
MR FRIEND: Yes.
PN1246
THE COMMISSIONER: So if you had somebody fresh and new and excited about the profession they could work with someone who was very experienced.
PN1247
MR FRIEND: Well that's certainly a possible scenario, but it's not the evidence that you have before you that all of a sudden they needed six people at this level and if you look how those jobs arose we've got the February 2007 report, which really doesn't establish anything. Then a decision which isn't minuted and then a document which says well we need three people here, three people there, the same level, for performance controller plus 10 per cent within the classification. Then all of a sudden when it's about offering to the surplus employees it becomes an operation supervisor level. If that scenario was correct, that's what we would have to say. But there's no evidence to suggest that there was a stop along that road to Damascus and Mr Joiner said what I really need are operation supervisors.
PN1248
THE COMMISSIONER: Didn't he say it was scoped up to team leaders?
PN1249
MR FRIEND: That's - all he meant by that was that you could be paid up to team leader, because I was questioning him about why he had said this is above the pay for the position and he said I didn't need to say that - well I'm not going to go over that evidence it spoke for itself. But the point was there was a stoke, they could pay up to it but it doesn't mean they need people with that experience in the jobs and that's the evidence that's not been put, that we needed people at op supervisor level.
PN1250
These jobs could be anyone between if we look at the attachment to Civil Air 16, a level 2 air traffic controller, and a team leader which is not the supervisor. But there is - you oughtn't to make the jump of saying that these are real operation supervisor level jobs, given the history of the position and what we've been able to ascertain about how these particular positions came into existence.
PN1251
THE COMMISSIONER: It's an absurd example I suppose but would you put in a partner of a law firm can be an associate to a country court judge, but it doesn't mean that that's that level.
PN1252
MR FRIEND: That's right. If we look at some of the other differences and there may be some overlap between say the job function and the same level obviously the issues would only come into account once. We would perhaps say well we'd add our submissions a little bit.
PN1253
THE COMMISSIONER: No, no job function is an interesting concept isn't it, because it can't be the exact work otherwise you wouldn't have the redundancy?
PN1254
MR FRIEND: Exactly and that was our outline, it can't be the exact same work, so you have to find out how you really delineate it and we in our opening submissions what I want to say now is that it's got to be really the same type of thing. Of course to take the example of the partner in the law firm and the associate of a country court judge, it might be to do with the law but it's not the same job function. A partner of a law firm and junior solicitor perhaps a little closer, but it's certainly not the same job function. So then we look at what the operation supervisors do and ask what their functions are and if you look at the attachment of Mr Ayliffe's statement AWA1, I chose it because of the AWA.
PN1255
THE COMMISSIONER: Yes, it hadn't escaped me.
PN1256
MR FRIEND: Not that we get to say it very much more often. But if you look at the role and it is a role that involves a number of very important and central tasks. That they are tasks about supervision of air traffic controllers, operational staff, overall responsibility for the provision of ATC in a particular unit, operational command authority. These are at the coalface, these are real air traffic control jobs, that's the function that we are focusing on. Now another job which involved supervision management in an air traffic environment may well fulfil the definition. But a position which is totally different, drafting procedures, and the witnesses, a number of them called it administrative, is not doing the same function.
PN1257
It would be like saying to take another example like you Commissioner saying that the parliamentary council who drafts the legislation does the same job as a member of the Commission who interprets it. One applies it - --
PN1258
THE COMMISSIONER: Not even close.
PN1259
MR FRIEND: No and each think they could do it better than the other if they've swapped - but - I'm sorry - that's not right - we all live with the right legislation.
PN1260
THE COMMISSIONER: Yes.
PN1261
MR FRIEND: But they are different functions and it was a slightly light hearted comparison, but there's actually a gem of truth in it because there's a real analogy. So if you look at AWA1 and you look at those parts of the job which are really there, you really need to be looking at involvement with air traffic control. Now an ALM, ATC line manager that's the same job function for sure. It's not the same job, it's certainly not the same job, but if someone came here and said I don't want to be an ALM even though I was offered, I want the voluntary redundancy they wouldn't get there. But that's an example of how it works. They are involved in air traffic control management and supervision but it's a different job.
PN1262
I don't say it has to be that close, Commissioner, but it might have been said against us how could you without having the same job where's the line? Well that's the wrong side of the line, we're never going to be able to draw the exact line with precision. We might have arguments about but these ones we say there really shouldn't be too much of an argument because it's clearly the case that there's quite a distinction. One also needs to look at going back to level and taken at an - the availability of overtime and annual leave. It's all very well to say well people don't have to do the hours to get the overtime, but actually people might actually want to and be used to it that it might - their remuneration and the way their life is conducted.
PN1263
It is part of the level or perhaps it's part of the function to put it in the level, and we think it should come in at the level, but the availability of overtime is an important part and aspect of the role that these operation supervisors are paid. It's no answer to say to someone you suffer no loss, you're doing the same job, you're at the same level, it's just now you're on 30 hours a week instead of 40 hours of week. Now you've got no access to overtime, previously you did have access to overtime. That's the sort of change which you wouldn't force upon anyone, and that's what is sought to be done. They either take the substantial reduction and all the evidence is in the tens of thousands of dollars a year. No evidence from Airservices contradicting that. They take it or they resign.
PN1264
We've pointed to some of the differences about supervision work as an air traffic controller management role. There was some evidence from Mr Ayliffe I think it was this morning about the early retirement benefit and it became clear that what he was talking about was the addition to his salary that an allowance for as it were, trading his early retirement and his right to retire at 54 so much per week. We don't know what the position is in regard to that but if that's lost, that's also a significant matter.
PN1265
THE COMMISSIONER: Am I correct in assuming that's only available to ATCs because of the nature of the law?
PN1266
MR FRIEND: Yes, those are my instructions. I don't think it's all ATCs I think it's a closed one - it happened in the past people who were employed after a certain date don't get it.
PN1267
THE COMMISSIONER: Yes, I think I was involved in something, yes, it's coming back to me.
PN1268
MR FRIEND: Somethings, if we look at paragraph 18 something might be sort to be made of - there was cross-examining a few people about how they use procedures, sometimes they have some input into them, sometimes well they say we're not going to apply for the position, I think Commissioner you asked the question if people could do that, any ATC could do that. We don't submit - we submit that that doesn't get anywhere near the same job Commissioner. The fact that they had some involvement with them at some stage, doesn't mean that that's their substantive position.
PN1269
Paragraph 19 Mr Boxall it arose yesterday and I - after he gave evidence about his concerns about travelling to the east coast and he said something to Mr Mueller this morning that we may wish to make a submission about geographical location. I think the way the evidence has come out today we don't persist that, so we agree with paragraph 19. There's clearly been no consultation in relation to all this. That really goes to the point we say, where these jobs have been if one looks at it they would seem to have been a flurry of activity on the documents, these jobs have been artificially created they are not real. Had they been real, one would have expected some consultation, maybe not with the union, although it's required under the certified agreement but at least with individuals.
PN1270
Relief is the final matter we seek to address. We would anticipate that if our arguments are successful Commissioner that what you would do is similar to what you did in the first case last year and made a determination or a series of determinations. The first being the positions are not reasonable alternative employment. We would ask you not to leave it there because we think the matter goes further and what's before you goes further and that it should be determined that the employees the seven who are potentially surplus, should be invited to volunteer to termination under 7.10.5(a). Thank you, unless there is anything further Commission those are our submissions.
PN1271
THE COMMISSIONER: Thank you, Mr Mueller.
PN1272
MR MUELLER: I'll just deal with the question of relief first actually because it's fresh in my mind. As we would see it the Commission's task in applying it's dispute settlement - or exercising its dispute settlement powers in this matter would be or would involve a ruling on the construction question. Then depending on what that ruling is, an application of it to the facts of the - and circumstances of each of the employees concerned. I do agree with my friend that should his argument on construction be successful and if the Commission was to also conclude that the offers were not offers of reasonable alternative employment then it would follow that on a proper application of the provisions of the certified agreement then theses particular employees or the ones in respect of whom you made a favourable ruling would be entitled to receive an offer of voluntary termination.
PN1273
THE COMMISSIONER: Unless you made them another offer.
PN1274
MR MUELLER: Unless we made them another offer, yes which was informed by what the Commission had said about the incidence that offer features that that offer needed to have. Now having said that there was just a couple of other particular matters I did wish to indicate to the - - -
PN1275
THE COMMISSIONER: I should add, I said that because assuming I make such a finding, you've got a range of evidence from persons over the last two days ranging from if I can't do this I want to go, to I think it's appropriate that I go, to even people who said look, I'm not sure whether I would go.
PN1276
MR MUELLER: Yes, yes in fact that was the one aspect of those categories that I was going to mention. For instance I think Mr Ayliffe, the thrust or I may be overstating it slightly was that he was still interested in, although had not come to a concluded decision about, doing active control work and there was an exchange at the bar table about that and I have had my instructions confirmed that we would certainly be interested in deploying him in such work. But that's an option that has always been available and we have made it clear to employees and to Mr Ayliffe as well, that that was available.
PN1277
The problem with that is that we could not contend that it was an offer that met either of the competing criteria because it was definitely a job at a lower level and the provisions of the certified agreement actually deal with that circumstance and say you can accept a job at a lower classification, in which case you will have 13 months salary maintenance in Mr Ayliffe's case and that would be what would apply in his case.
PN1278
THE COMMISSIONER: But without wishing to attribute any finding at this stage, until I read it more thoroughly, if the communication had of been more accurate between the parties solutions may have been found for some people, it may not have for others.
PN1279
MR MUELLER: Yes, yes I understand what the Commission says about that. Now I first wan to make some observations about the overall effect of the evidence. I want to submit that in each case the positions that have been offered to the employees concerned it can be readily seen are a step removed from operational supervision and active control. There couldn't be a contention to any opposite effect. But we submit that the work or the subject matter of the work of the employees concerned in the procedure specialist role, would be amongst other things the development of material that is used and applied by active air traffic controllers.
PN1280
What they would do and the product of their work in the positions is something that is essential to the safe provision of the air traffic navigation in air space controlled by Airservices and secondly, the work is intimately connected with the direct operational side of air traffic control. Now - - -
PN1281
THE COMMISSIONER: I can't see any daylight between the parties on those propositions.
PN1282
MR MUELLER: No and that's why I do have to take you fairly exhaustively to the submission that we make about the same job function aspect of this provision and the proper approach to it. Just staying with the evidence for a moment. I'd submit that the evidence of each of the employees concerned would - it could be fairly said that none of them, perhaps with the exception of Mr Boxall, expressed or genuinely expressed a real doubt about their capability to do the work of the positions concerned or to their capacity in a professional sense to adapt to the role.
PN1283
I submit that the highest that it could be put was the way in which Mr Boxall put it and his matter that loomed large in his case, was the question of the adaptability of his relatively confined experience in tower, regional tower services to what he might be asked to do, but that's a matter which his concern would be obviated by the evidence that Mr Joiner gave this afternoon in that respect. Now I also want to say in regard to the evidence that some mild criticism could be levelled about Airservices not actively selling these positions to the offerees concerned.
PN1284
But I submit that the Commission should bear in mind that there was - and I think it's I submit that it is clear from the evidence of each of the employees concerned a pretty clear determination on the part of each of them, not to entertain the idea that a position of this type, that is a position that didn't have active controlling or a significant supervisory content. They did not entertain, at all entertain the idea that that could be a offer of redeployment that they should seriously consider and might be obliged to accept. That was clear probably before the offers were made. Could I say I just make a couple of miscellaneous observations about the effect of some of the evidence that was given by the employees concerned.
PN1285
Mr Patterson for instance, had as I recall it, no doubt that he could with training do the job that was offered, capably and well. His attitude to resisting it seemed to stem to a significant degree from a premise that because his operation supervisor job was being made redundant it followed that he should be invited to terminate on a voluntary redundancy basis. There was a thread really and that was a thread that ran through each of the employee's evidence.
PN1286
THE COMMISSIONER: Would I be correct in my assumption that they saw it as career changing?
PN1287
MR MUELLER: I think that that is the way they saw it, I wouldn't argue with that. I would argue - - -
PN1288
THE COMMISSIONER: Whether it is or not.
PN1289
MR MUELLER: Yes.
PN1290
THE COMMISSIONER: But that's the way they viewed it as career changing.
PN1291
MR MUELLER: Yes I wouldn't resile from that. They clearly have an embedded view that they are front line operational people and that they are - - -
PN1292
THE COMMISSIONER: So that comes down then to the job function doesn't it?
PN1293
MR MUELLER: That's right, that's right and perhaps the only other specific reference I want to make to the evidence is you will
recall the evidence from
Mr Smith who was probably the most frank in freely acknowledging the value and importance of the role that was being offered to him.
Interestingly he seemed to have a probably had the best perspective on the content of the role and had no hesitation in giving the
evidence in cross-examination, that the job was objectively important and vital. Now that conveniently brings me to saying a couple
of things on the issue of same function, if that is a component of the test that is to be applied.
PN1294
I should say same level and there's been some concentration in Civil Air's submissions on this on what I call the pay rate issue. In fact it was given a large amount of significant in my learned friend's submission. Now one piece of evidence that with respect I think was passed over very quickly when this matter was being canvassed with Mr Joiner is that he said quite plainly this afternoon that the pay rate and the attribution of a pay rate which was equivalent to the ops supervisor role, was appropriate having regard to the long time experience and knowledge of these employees concerned and that that was the way in which remuneration for roles within that group was determined.
PN1295
Of course that's not by picking up a certified agreement and looking at a classification and finding a single rate of pay. There's a particular mind set involved in that but it's not the mind set that is brought to the determination of remuneration for these positions and nor is there any compulsion on us to do so.
PN1296
THE COMMISSIONER: But you'd do it on work value basis, wouldn't you?
PN1297
MR MUELLER: Yes but in doing it on a work value we would make an assessment of the capability of the particular person concerned.
PN1298
THE COMMISSIONER: Irrespective of the job they're asked for that to be performed?
PN1299
MR MUELLER: No, no.
PN1300
THE COMMISSIONER: No.
PN1301
MR MUELLER: Not at all, not at all, but the evidence I think is clear that there has always been a number of occupants of this position who have received a salary at that level and it has been regarded as appropriate that that be so.
PN1302
THE COMMISSIONER: But that raises that whole question you pay for the skills held, or the skills used.
PN1303
MR MUELLER: Yes.
PN1304
THE COMMISSIONER: That's what prompted me to ask the question about the table, it seems to have the characteristics of job functions that have traditionally been filled by taking ATCS out saying we need you to look at these areas now for a period of time, putting them back and the way you manage that is by maintaining salaries. It doesn't seem to have a focus whereby you say, here is the work we're asking you to do and here is the value of that work.
PN1305
MR MUELLER: Yes. I suppose what I'd say about that is that I would say it is clear from the evidence that we are at the frontier of dealing with these positions in a different way. We've established a particular unit and decided that there ought to be permanent employees in that unit. But as Mr Joiner said that doesn't necessarily mean that there won't be secondees there as well. It is just that having regard to what is now an assessment of the nature of this work and the importance of this work, there ought to be permanent appointments, it should no longer be done on an ad hoc way that's unsatisfactory.
PN1306
It is true that there is a convergence between reaching that frontier and making these offers and my friend has made a lot of that to the extent of suggesting that the positions are artificially created at least as permanent positions. But I would submit that the Commission should reject that proposition.
PN1307
THE COMMISSIONER: No, but my mind was going to things like this, and I suppose it's an unavoidable history that I have to deal with. If I was looking for work value, where am I going to be impressed by somebody who may have done this job and then says, now I need a wage increase because I am now am rated in this way and I can do this and I can do that and the work value of having that capacity is above the work value of having the capacity of deciding procedures and processes and other issues which can be done administratively that don't require and I use the term very broadly, that don't require the specialist skills for an ATC.
PN1308
MR MUELLER: Well I mean it's probably no accident there's no classification in the agreement for this and it's clear that some work needs to be done, but I simply say that the Commission should reject the proposition that the salaries here have been sort of artificially uplifted to satisfy the same level of criteria or aspect and in that regard I wanted to make another sort of separate but related submission and say that typically one would approach the question of level in the context of the organisation concerned and that when one has what is clearly a stratified organisation like Airservices that the natural first port of call to determine whether a job is at the same level is to look at it in that organisational sense and the effect of the evidence in that regard is that these positions, in terms of level GM, general manager, ops director and then next level down, it's equivalent and we do place reliance on that.
PN1309
It is true, I think it is plain from the evidence and almost the atmosphere of the matter that the employees concerned and perhaps air traffic controllers generally don't look at it that way. They have a different frame of reference, but again I'd submit that that's not an objective one and it's not the way we look at it organisationally and the way it ought to be looked at. So for that reason we do say that the positions were at the same level. Now could I turn to our outline of contentions itself. This is not an easy question to resolve.
PN1310
THE COMMISSIONER: If it was it wouldn't be here.
PN1311
MR MUELLER: Yes, at the beginning I've got to make this contention that really when you get down to it and look at what is being said on behalf of Civil Air and employees here, you look at it historically and in the context of the other words that appear in the certified agreement. What is actually being said is that by the insertion of the text of what is described as a principle in 10.1(b) that Airservices effectively agreed to give up the right to redeploy experienced air traffic controllers and operational supervisors whose particular jobs had become redundant because of the restructure, that they gave up the right to redeploy them to jobs that needed to be done, within its core functions and which the employees are capable of doing.
PN1312
That's the effect of the submissions remembering that this principle did not appear in the preceding certified agreement. In other words that it - and I'll show why this is so, but I'll say it now, that it turned around the whole emphasis and direction of the clause without making any material amendment to the actual operative provisions in the clause. I say that that gives one a certain perspective on the dimensions of the submission that is made in that respect. How we actually put it is, is put in paragraph (1) of the outline, then I do wish to remind the Commission about what has been said about the determination of construction issues such as this in the case of an instrument like this which has it's - will often have inherent flaws or difficulties because of it's nature and the way in which it comes together.
PN1313
I refer to what is said by several of the High Court Judges in the Amcor case, which remind us that we have to have regard to the language of the entire document in the light of its industrial context and purpose. Then I also refer to what was said by Justice Madgwick in Lecuk's case and it's worth just pausing and looking and rehearsing that, that taking it up from the second sentence:
PN1314
The searches for the meaning intended by the framers of the document bearing in mind that such framers were likely of a practical bent of mind, they may well have been more concerned with expressing an intention of ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon - - -
PN1315
THE COMMISSIONER: Yes, well have to remember that in award modernisation.
PN1316
MR MUELLER: Yes, one of a host of things you'll need to remember I think. And the passage goes on to say:
PN1317
Thus for example it's justifiable to read the award to give effect to its evident purposes having regard to such context which is the relevant industry and the industrial relations environment, despite mere inconsistencies or infelicities of expression which might tend to some other reading and meanings which avoid inconvenience or injustice may be reasonably strained for. For reasons such as these expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
PN1318
So it's a pretty robust approach and there is an emphasis upon the industry setting and the industrial relations setting which is why in I think we say, in paragraph 3 and I don't think there'd be any contention about this, it is appropriate to have regard to the relevant history of the provisions. But then we go on to say picking up the thrust of the passage which I've just read, we then spend just a little bit of time stating what we say is the true industrial context and industrial relations context. The particular things that I want to draw attention to is to recall as was fixed upon during the course of today's hearing, we are dealing with a monopoly provider here.
PN1319
We are dealing with the organisation that trains air traffic controllers and it is a career organisation. There are a number of implications of that, but an important one in the context of this case, is that really the pool of people from which we draw to fill real and substantive positions that go to our core functions, is those who are employed by us and those who we train. That's the relevant matter to take into account in setting this particular industry agreement in context. The second matter is merely - well it's important to take note of the fact that we are dealing with a - as it were an essential service and Airservices government owned, has to perform it.
PN1320
So we have to draw on our workforce to perform it and really that is the - and the third point is saying that and this is I submit supported by the evidence that the constitution of a national ATC service support unit, can be seen as an integral part of that. Now the next point that I make in these submissions in paragraph (5) is that if the provisions are shorn of the effect of the principle - or the possible effect of the principle in clause 7.10.1(b) I do say that it is quite plain that the objective of the provisions is to preserve the employment of permanent employees. It is not to set up a system leading to the granting of redundancy.
PN1321
The preservation serves two interests. It serves the interests of Airservices in being able to draw on its pool of employees to redeploy and it serves the interests of the employees by ensuring that we are under an imperative obligation to keep them employed with us, having regard to the fact that they are in a career with a monopoly provider in Australia. That is I'd say with respect is a very suitable object and whatever one might say about the difficulties in the mechanics of some of the clauses, it's plain that that's the objective and so in paragraph (6) we do go on to say that as a starting point the provisions ought to be given a construction that promotes the apparent object that is contained in the operative provisions and that the submission that is put on behalf of Civil Air, as I think is unashamedly acknowledged by my friend, that his submission is that the clause has been converted by the insertion of the principles to something else that in effect confers a right on a employee who is declared potentially surplus to insist on termination on a redundancy basis, unless the job is of the same function relevantly in this case.
PN1322
Now then in paragraph (7) to (10) I refer to a number of other indications within the clause itself which in my submission reinforce that proposition, I don't stop to dwell on them. I simply say that when one does look at those provisions one sees quite clearly that the thrust of the provision is about redeployment of potentially surplus employees to suitable vacancies of equal classification or level. Now could I just move to the paragraphs under the heading consistency with other provisions? This is in my submission quite important in the resolution of the question. If the Commission turns to clause 5.6 of the agreement of the certified agreement.
PN1323
THE COMMISSIONER: Yes.
PN1324
MR MUELLER: In particular at the foot of the page 5.6.3:
PN1325
You may be transferred to any position at level for the purposes of operational efficiency, development, equal opportunity reasons, in the event of being potentially surplus as a result of a selection exercise, or in accordance with transfer arrangements.
PN1326
So two things about that clause, in the normal course of affairs where one hasn't got a restructure or a redundancy question there is a right to transfer employees whose employment is covered by this agreement to any position at levels for the purposes of operational efficiency and so forth.
PN1327
THE COMMISSIONER: These persons would be covered by this agreement?
PN1328
MR MUELLER: Yes, yes there's no argument about that.
PN1329
THE COMMISSIONER: In part (5) remuneration, where would you place that? Under what category?
PN1330
MR MUELLER: Yes, well that's the - there isn't a classification as such in the attachment (1) which contains what can be called the classifications.
PN1331
THE COMMISSIONER: Can they be placed there by exclusion? Say for example if I take the various streams, there's air traffic controller, simulator support officer, and flight data coordinator is that the three streams?
PN1332
MR MUELLER: Yes, that's right and that's again reflected in the attachment (1).
PN1333
THE COMMISSIONER: Yes.
PN1334
MR MUELLER: At the back.
PN1335
THE COMMISSIONER: And if I take the definitions ATC means air traffic controller so they couldn't be in that stream could they?
PN1336
MR MUELLER: It would be a stretch I think.
PN1337
THE COMMISSIONER: I think so. Simulator support officers, means a simulator support officer?
PN1338
MR MUELLER: It's clear - I'd submit this and I don't know whether there'd be an argument on the other side. But there is not a classification as such within the agreement. But I think the principle would be, and we don't for the purposes of this proceeding put the contrary that simply because there's not a classification or a salary which is specified for the position, it does not follow that they're not covered by the agreement and when one looks at the scope of the agreement the position we take in these proceedings and I think Civil Air take the same position, is that they're covered by the operative positions.
PN1339
THE COMMISSIONER: Even that would be no doubt one of the reasons why the current level is described by a level contained in the agreement?
PN1340
MR MUELLER: Yes.
PN1341
THE COMMISSIONER: You don't have to agree with me it was just a question.
PN1342
MR MUELLER: I'm not sure I was necessarily agreeing with you.
PN1343
THE COMMISSIONER: Was yes an acknowledgement or yes agreement, yes.
PN1344
MR MUELLER: Yes.
PN1345
THE COMMISSIONER: You see that arouses the question as to whether what's the function, what's the job function?
PN1346
MR MUELLER: Well it's not a function that is described here in that, in the agreement.
PN1347
THE COMMISSIONER: Yes, well if you looked at the agreement it certainly couldn't be regarded as an air traffic controller function.
PN1348
MR MUELLER: Not particularly when you look at the classifications themselves in attachment (1) because that at least is confined to operational and team leader, operational supervisor people.
PN1349
THE COMMISSIONER: Yes, all right thank you.
PN1350
MR MUELLER: Now so the point that I was making is that, well two things. One just in the normal course we have the ability to transfer to any position and then interestingly, clause 5.6.3 also deals with our capacity to do that in the event of someone being potentially surplus. Now my friend might say well, you know perhaps not much attention was paid to that at the time the principles were inserted.
PN1351
THE COMMISSIONER: He's more likely to say the specific overrides the general.
PN1352
MR MUELLER: Indeed, he will, he will say that, he will say that but the proposition I make is that it does show it's one of several things that I mention, that shows that the breath taking change in the nature of this provision which my friend would have the insertion of the principles affecting has not in fact been picked up elsewhere. Now and this is slightly out of order but you'll see it reflected in the outline of contentions. If you look at clause 7.9 the clause that precedes the redeployment and redundancy provision, you'll see that in clause 7.9.3 - I'll go back a step.
PN1353
This clause is dealing with the position that exists if Airservices itself establishes a wholly owned subsidiary and an employee of Airservices becomes an employee of a subsidiary. A narrow circumstance and then in 7.9.3 it says this:
PN1354
If an Airservices employee refuses a reasonable offer of employment by a subsidiary then Airservices may terminate the employee's employment and the employee will not be entitled to any payments.
PN1355
In other words, it's the same, it's the principle that has come to be in a slightly abbreviated way reflected in clause 7.10(1)(b), you'll see that the concluding words of clause 7.9.3 are:
PN1356
Reasonable means at the same level, same job function and same physical location.
PN1357
Now that the incorporation of that provision in that clause makes, I won't say perfect sense, but it makes good sense and it would not, one would not resile from it because what it appears to be saying is that if Airservices decides to you know, take one unit put it in a subsidiary rather than containing it within the company proper, then in order to be relieved of the obligation to make a redundancy payment in that circumstance then the position has to meet that criteria. Now that provision as I read the history, and I think I'll be able to demonstrate this, was inserted at exactly the same time as the principle that is introduced in 7.10(b).
PN1358
It is my submission as I put it in the contentions that when that is appreciated in the context of all the other considerations that I put forward, there is a good reason to believe that the insertion of that definition of reasonable in 7.10.1(b) was done in a reflective way, without careful consideration to its impact or reconciliation with the actual operative provisions.
PN1359
THE COMMISSIONER: What would same job function mean then?
PN1360
MR MUELLER: Well you would read it right down, you would appreciate immediately that perhaps those who have been concerned with the introduction of the provision did not turn their mind to the impact of that phrase at all.
PN1361
THE COMMISSIONER: Is 7.9.3 a new provision in itself?
PN1362
MR MUELLER: Yes, well it's new in this agreement just as 7.10.1(a) and (b) are new. They weren't in a previous certified agreement.
PN1363
THE COMMISSIONER: It could apply to something like if Airservices set up the south pacific air traffic controllers company to deal with all the south pacific islands and took over the contract of running air traffic control for them? You could transfer your air traffic controllers to the subsidiary and not be up for redundancy?
PN1364
MR MUELLER: Yes, yes or perhaps even an example closer to home. We set up a subsidiary to run air traffic control in each state, not a conceivable idea but yes that sort of thing.
PN1365
THE COMMISSIONER: I think you're more likely to get overseas contracts.
PN1366
MR MUELLER: Yes, yes I'm not sure what our appetite is at the moment for overseas contracts although I suspect. Now I simply point out in paragraphs 14 and 15 that there are other provisions in the agreement that are consistent with the idea that in the general run of things, Airservices has the capacity to redeploy it's workforce, its air traffic control air force to positions at level in particular circumstances without a super added requirement of any kind to the effect of same function.
PN1367
THE COMMISSIONER: Can you draw anything from what you've just drawn to my attention the loss of essential qualification?
PN1368
MR MUELLER: That's a circumstance where say for a medical reason, an air traffic controller cannot maintain their licence, yes. That's one of the provisions we - - -
PN1369
THE COMMISSIONER: You can redeploy them anywhere?
PN1370
MR MUELLER: Yes, that's right and equally the same circumstance applies in the case of fitness for duty.
PN1371
THE COMMISSIONER: Yes.
PN1372
MR MUELLER: So there is a theme within the certified agreement which my friend submission would overturn in relation to the specific circumstance of employees becoming potentially surplus. The next aspect of the argument I wanted to go to was what I've called in the contentions, the anomalous operation of clause 7.10. I notice the time Commissioner.
PN1373
THE COMMISSIONER: That's all right, how long will you be I'm content to?
PN1374
MR MUELLER: I would be about 20 minutes.
PN1375
THE COMMISSIONER: I'm content to sit on if you're happy to do that and we could finish today here I'm committing both my associate and the court reporter, but I would have been glared at if there was a problem.
PN1376
MR MUELLER: Yes. Commissioner you'll remember that from the passage that I've set out in the contentions, that one of the matters that can guide construction in a context like this is the fact that it's justifiable to read the award and one can say agreement, to give effect to its evident purposes and so forth and then it says:
PN1377
And meanings which avoid inconvenience or injustice may be reasonably strained for.
PN1378
Now that's a proposition that's well known in the construction legal instruments generally including statutes and we invoke and say that principle applies here and what we say about it is that the reference to same job function in clause 7.10.1(b) is anomalous and would create a paradox. My friend appeals to the words in the document that was his first starting point. The language of the document as if that was a matter that determined all.
PN1379
THE COMMISSIONER: That's where you start normally isn't it?
PN1380
MR MUELLER: Well - - -
PN1381
THE COMMISSIONER: Words mean what they say in regard to look at context and setting.
PN1382
MR MUELLER: No, no, with respect no. It's my submission that the task of construction is more dynamic and integrated than that and you see that reflected in judgments every day. You see it reflected in the fact that the starting point in construction is different all the time because all the indicia from the context from the words is drawn together to ascertain the true intended meaning and proper effect. It's of course one in a temporal sense starts with the words, and an impression of what those words mean in language. But that doesn’t mean that there's a level of precedence as far as the considerations are concerned.
PN1383
Now and I think the paradox of applying as it were the literal meaning of the words is evident and it's acknowledged by Civil Air it can't mean what it apparently means it has to be, even in their submission, read down to cure the paradox. They say that, they say that quite directly. You can't have a redundant position and then say that the offer of the alternative position must have the same functional aspects, that would be absurd. Civil Air recognises that and this is what they say about it.
PN1384
They say look therefore you have to read down same job function as meaning a position that involves, as I think my friend modified it slightly in his submissions this afternoon, but one that involves similar tasks, or tasks that are similar to the tasks that are significant in the role that's become redundant. Like to put it in concrete terms, the supervisory aspect of the operation supervisor role, which of course is not it's only aspect, but a significant one. Or in the case of where these employees have been doing operational air traffic control, then that direct interface.
PN1385
We contend that that submission ought to be rejected because it's not anchored or supported in the language of the provisions elsewhere in the clause. My friend would have some ground to make if he could point to provisions elsewhere, in that provision or even elsewhere in the agreement that supported that. They can't. Now the second thing is that when one comes to appreciate the evidence that's been given in the case, it does become clear that in it's the sort of rider, or the nuance that they seek to give to same job function, in order to save it from this anomalous operation is merely another way of saying exactly what one would think the words literally mean. Namely that the tasks have to be pretty much of the same type and same nature as that performed by an operation supervisor.
PN1386
Now that is no solution to the anomaly and my friend skirted around the question by saying well facts and circumstances where do you draw the line, it's a bit grey but this case falls on one side of the line. That is not a legitimate way of reaching a view about the proper construction of the agreement. That is throwing one's hands in the air and saying let's forget the difficulty of construction let's just look at the facts and import and form a impressionistic rough justice view. That's what my submission about that is.
The last aspect of the written contentions is the history of the provisions and I just thought that I would hand up relevant extracts from - this is extracts from the immediately preceding certified agreement.
EXHIBIT #AIRSERVICES 3 EXTRACTS
PN1388
MR MUELLER: You will see that clause 22 is the redeployment redundancy retirement and resignation provision. That's on the third page of the extract. But the important thing is that you'll see that it also refers to attachment (3) and attachment (3) is attached. I won't spend time taking the Commission chapter and verse through these provisions but what I say is - well the two salient points are of course it didn't contain the principle that is now relied upon. But in as I read it, its provisions are - it's actual operative provisions are not materially different from the current provisions and one discerns from them, the emphasis upon Airservices having the capacity to redeploy and provision having the interests of both the employer and employee at heart in preserving the employment.
PN1389
It is on that basis that I made the submission before about the insertion of the principle in 7.10.1(b) being quite conceivably a reflex to its insertion in the preceding clause. I don't mean this in a pejorative way but not in a thinking way if I could put it that way and that the implications of it which are now being played out in front of the Commission not being thought through. I also wish to tender a copy of the Airservices award 2000.
PN1390
THE COMMISSIONER: Is it extracts or the full award?
PN1391
MR MUELLER: Extracts, I just need to make sure that - the current award of course doesn't contain a redundancy provision because it's been modernised.
PN1392
THE COMMISSIONER: Simplified.
PN1393
MR MUELLER: Simplified.
PN1394
THE COMMISSIONER: It's yet to be modernised.
MR MUELLER: Yes, we're not there yet are we? So what I'm handing up is the award in its condition before it was simplified.
PN1396
MR MUELLER: The provision as - I think I haven't handed up the full extract.
PN1397
THE COMMISSIONER: No.
PN1398
MR MUELLER: What I've handed up was the title page and the index, I'm now handing up the actual provision about redundancy and redeployment.
PN1399
THE COMMISSIONER: Thank you it will just be attached to Airservices 4.
PN1400
MR MUELLER: The submission I make about that is that historically the provision has appeared in a form which is consistent with the contentions that I am putting forward about how it should be construed. Now I know my friend will say, look you know one can't simply ignore the fact that the words appear, but with that generosity of approach to construction and all the other indications within the text of the provision itself, I say that the Commission is perfectly entitled to reach that conclusion.
PN1401
Now I did want to make a couple of other distinct submissions in closing. The first is that my friend said that - or gave a characterisation to Mr Joiner's evidence and he said that he was not prepared to make obvious concessions and to prevaricate interestingly, he did not identify any area in the evidence where that occurred. I think the closest he got was to refer to the exchanges about the salary level and the letter that contained that spruiking statement about it being commitment that was made. If I haven't already said this, I meant to say it at the outset it is my instructions that the positions that are offered are - and the level of salary that are offered are real positions, substantive positions, and there is the salary that is specified is the salary for those positions and it's not planned - - -
PN1402
MR FRIEND: This is evidence from the bar table at this stage, I mean given Mr Mueller's position in the organisation and that's how - we don't accept that it be given in that way.
PN1403
MR MUELLER: I only remark that my friend kept steadily away and this is a very interesting way of dealing with a proposition which he was prepared to make in submissions that these jobs are jobs that have been moulded or artificially created in order to accommodate these employees. A pretty serious proposition, what is most interesting about it, is that in the course of cross-examination of Mr Joiner and this is rather telling, Mr Friend was not prepared at any point to put that allegation squarely to him and he did that and this is surprising if I may say so, in the context where he had a statement from Mr Joiner and he had Mr Joiner in the box for some time which contained an emphatic denial of the assertion that these jobs were artificially created.
PN1404
My friend apparently is comfortable about making a submission to the Commission which suggests that in dealing with this matter, the Commissioner should in some way or another take into account a lingering doubt that these positions are not real positions. I submit that having regard to the course that my friend has taken in that respect, the Commission should have no truck with that submission. Now those are the matters that I wanted to put forward, if the Commission pleases.
PN1405
THE COMMISSIONER: Thanks Mr Mueller, Mr Friend?
PN1406
MR FRIEND: Yes, it is my recollection that I put those matters in an appropriate way that's just been referred to Mr Joiner. If anything turns on it, it will be a matter for the transcript. The whole of the submissions that we have just heard is directed at one thing, it is asking the Commission to ignore the existence of certain words in the provision and you simply can't you can't even get to that point. It's not a question of not starting there, but you can't even get to that point, you have to give the words some meaning and when put to it, Commissioner you asked Mr Mueller what was involved in the job function, he didn't answer that question and he can't.
PN1407
On his submission you've got to ignore those words. Put simply his submissions is those words are a mistake. They were put in there reflexively and they shouldn't be there and if they weren't everything would be easy. Well if they weren't there we agree with that we wouldn't be here. Because 7.10.1(b) doesn't just define what reasonable alternative employment is, it says something which contains a whole basis of what has to be Airservices case here. You will not be entitled to any redundancy entitlement under this clause and not for a reason that employment is refused. Now if 7.10.1(b) weren't there, where would we be? We'd be looking at 7.10.3(f). Redeployment should be on a voluntary basis.
PN1408
End of story, employees potentially in surplus refuse to be redeployed voluntarily. End of story, if they can't be redeployed and they are potentially surplus they have to be terminated under the permanency provisions. 7.10.5 Once we're satisfied after consultation and consideration, employees who are potentially surplus will be invited to volunteer for termination, if you are invited to volunteer. Now the matters that are referred to in 7.10.5(a) are the matters above, include the possibility of voluntary redeployment. There is no compulsory redeployment. Then if we look at the previous agreement - clause 4 of the appendix, or attachment. 4.1 has the potentially surplus employees, 4.7 has voluntary redeployment.
PN1409
5.2 employees who are potentially surplus will be asked to express an interest in voluntary redundancy and 6.1 once it's clear that there are going to be any redundancies all employees who are potentially surplus have to be asked to volunteer. Of course we now know that that didn't happen in this case Commissioner. We know now from what was said this afternoon that are redundancies but all employees who were potentially surplus were not invited to volunteer. Be that as it may - - -
PN1410
THE COMMISSIONER: Well you say why is because?
PN1411
MR FRIEND: Because of the agreement was not - - -
PN1412
THE COMMISSIONER: Because of the operation of 1(b)?
PN1413
MR FRIEND: Sorry? Well that may be right, that may be right, although they are still in a position of being potentially surplus. But in any event Commissioner it's not just a simple question of saying cross out 1(b), it's a mistake. 1(b) has been put there to give rights to Airservices. It strengthens this position in this whole thing, because if it weren't there, redeployment would be voluntary. But in any event you can't pick and choose which words in the provision you include. The real vice in the Airservices submissions is that they just can't give meaning to the words, job function. They're real driven to what they did do was saying, it's a mistake.
PN1414
In circumstances such as that one would have expected a little more in terms of evidence about the making of the agreement rather than just the previous agreements, or even a statement that there was no evidence but there's no evidence about what went between the parties. No evidence about - all of those things could be used to help construe, if they were helpful to advocates - if they want to say it was a mistake there might be something there, nothing Mr McGuane of course was a negotiator of the agreement, nothing was put to him about it being a mistake.
PN1415
Now can I go back to some earlier things Mr Mueller said same level means same level in organisation chart. Well that can't be right because if that's right the ATC level 2 is working as a CNS ATMS is it the same level as an operations supervisor, because they're going to be in the same place on the chart. 5.6.3 Quite a lot was made of that. If one goes to it, I don't know how much I need to dwell on this but it really is an enabling provision which says there can be transfers if someone is potentially surplus. One obviously then has to wonder what potentially surplus means, you then go to 7.10 and that tells you how all of those transfers work. 5.6.3 doesn't mean that everyone who is potentially surplus can be transferred and really, that seemed to be the purport of the Airservices argument.
PN1416
If it wasn't that, they were saying well it could mean that and if it did mean that well then you use it to construe 7.10 down and with respect it's hard to see how that can be consistent with the authorities. But at the end of the day Commissioner, you've got to find some meaning for the words, same job function and if you can't - if the best you can do is blue pencil them, it's not consistent with all the caverns of construction and the instruments. Those are our submissions.
PN1417
THE COMMISSIONER: Thank you very much. Thank you gentlemen for your submissions I'll reserve. The matter is adjourned.
<ADJOURNED ACCORDINGLY [4.48PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
PETER BERNARD SWEENEY, SWORN PN551
EXAMINATION-IN-CHIEF BY MR DOWLING PN551
EXHIBIT #CIVIL AIR 8 STATEMENT OF PETER SWEENEY PN562
CROSS-EXAMINATION BY MR MUELLER PN591
RE-EXAMINATION BY MR DOWLING PN668
THE WITNESS WITHDREW PN672
JAMES ANDREW STEADMAN DIXON, SWORN PN674
EXAMINATION-IN-CHIEF BY MR DOWLING PN674
EXHIBIT #CIVIL AIR 9 STATEMENT OF JAMES DIXON PN681
CROSS-EXAMINATION BY MR MUELLER PN699
RE-EXAMINATION BY MR DOWLING PN723
THE WITNESS WITHDREW PN727
ANTHONY WAYNE AYLIFFE, SWORN PN728
EXAMINATION-IN-CHIEF BY MR DOWLING PN728
EXHIBIT #CIVIL AIR 10 WITNESS STATEMENT OF ANTHONY AYLIFFE PN736
CROSS-EXAMINATION BY MR MUELLER PN744
RE-EXAMINATION BY MR DOWLING PN791
THE WITNESS WITHDREW PN796
BRIAN WILLIAM JOINER, AFFIRMED PN805
EXAMINATION-IN-CHIEF BY MR MUELLER PN805
EXHIBIT # AIRSERVICES 2 STATEMENT OF BRIAN JOINER PN822
CROSS-EXAMINATION BY MR FRIEND PN823
EXHIBIT #CIVIL AIR 11 DOCUMENT ATTACHED TO EMAIL FROM MR WELCH HEADED OPERATION SUPERVISOR REDEPLOYMENT PROCESS PN839
EXHIBIT #CIVIL AIR 12 EMAIL FROM MR WELCH TO STAFF RE OPPORTUNITIES FOR ATC STAFF PN1025
EXHIBIT #CIVIL AIR 13 LETTER FROM MR WELCH TO STAFF RE OS EMPLOYMENT OPPORTUNITIES PN1031
EXHIBIT #CIVIL AIR 14 POSITION DESCRIPTION PN1070
EXHIBIT #CIVIL AIR 15 SECOND POSITION DESCRIPTION PN1081
EXHIBIT #CIVIL AIR 16 PROCEDURES SPECIALIST LIST WITH ATTACHMENT PN1114
EXHIBIT #CIVIL AIR 17 EMAIL DATED 25/10/2007 PN1123
RE-EXAMINATION BY MR MUELLER PN1180
THE WITNESS WITHDREW PN1206
EXHIBIT #CIVIL AIR 18 OUTLINE OF SUBMISSIONS PN1214
EXHIBIT #AIRSERVICES 3 EXTRACTS PN1387
EXHIBIT #AIRSERVICES 4 EXTRACT OF THE AWARD WITH ATTACHMENT PN1395
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