C2007/2783, Transcript of Proceedings [2008] AIRCTrans 24 (21 January 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 18002-1

COMMISSIONER LEWIN

C2007/2783

s.170LW - prereform Act - Appl’n for settlement of dispute (certified agreement)
United Firefighters’ Union of Australia
and
Emergency Services Telecommunications Authority
(C2007/2783)

MELBOURNE

10.05AM, WEDNESDAY, 09 JANUARY 2008

Continued from 30/11/2007

PN99

THE COMMISSIONER: Good morning. Do you have any preferences to how we should proceed today, Mr Clarke?

PN100

MR CLARKE: Yes, thank you, Commissioner, I do. There's been no objection to my involvement in the informal stages over the last six months or so of this matter, but now that we're going on the record for an arbitration I think I should formally seek leave.

PN101

THE COMMISSIONER: Yes, all right. Is there any objection?

PN102

MR COULTER: No objection, Commissioner.

PN103

THE COMMISSIONER: Very well, leave is granted, Mr Clarke.

PN104

MR CLARKE: Thank you, Commissioner. I'd just intended to give a brief opening. I wasn't going to take the Commission through the written material that's already been filed.

PN105

THE COMMISSIONER: I read it last night.

PN106

MR CLARKE: And I was then going to call Ms Pike, a couple of supplementary questions, she could then be cross-examined, and I imagine that Mr Coulter would open his case and put his witnesses on.

PN107

THE COMMISSIONER: Very well.

PN108

MR CLARKE: I imagine we'll be approximately half a day if that, Commissioner.

PN109

THE COMMISSIONER: That's what I was anticipating.

PN110

MR CLARKE: Okay, thank you. Just a minor housekeeping matter if I may. Exhibit JP3 to the first statement of Ms Pike filed in the proceedings, owing to a problem with the photocopying, if one goes to page 4 of that exhibit, if your copies have the same problem that I do the page after page 4 will be business record of Slater and Gordon.

PN111

THE COMMISSIONER: Just one moment please.

PN112

MR CLARKE: Yes. And the same will be the case for the page following the page numbered page 7, the page following the page numbered 13, I might ask the respondent and the Commission to exhume those.

PN113

THE COMMISSIONER: This is JP4 you're talking about?

PN114

MR CLARKE: Yes. Just to remove those papers from the exhibit. They're obviously not intended to be part of the exhibit, it was a photocopying mistake.

PN115

THE COMMISSIONER: I'm not sure or not whether I'm looking at the same document. All I have is an SES events type.

PN116

MR CLARKE: Yes. After following page 4 of the exhibit does it go on to page 5 or is there an email message?

PN117

THE COMMISSIONER: You're looking at exhibit JP4?

PN118

MR CLARKE: No, sorry, JP3, sorry, Commissioner.

PN119

THE COMMISSIONER: JP3, I beg your pardon. So it's page 4 of JP3?

PN120

MR CLARKE: Yes, the page following page 4 and the page following page 7.

PN121

THE COMMISSIONER: There's some documents that aren't paginated, but you were referring to the ones that are?

PN122

MR CLARKE: Yes, and the page following page 13. They're all email messages.

PN123

THE COMMISSIONER: Yes, I see. All right, yes, we'll just remove those included inadvertently.

PN124

MR CLARKE: Thank you, Commissioner, correct.

PN125

THE COMMISSIONER: Probably some sort of collecting things from the photocopier type scenario.

PN126

MR CLARKE: That's right, yes, thank you. This dispute, Commissioner, was notified to the employer, the Emergency Services Telecommunications Authority pursuant to a dispute resolution procedure contained at clause 43 of the ESTA, if I might call it that, enterprise agreement 2006. Do you have a copy of the agreement there?

PN127

THE COMMISSIONER: I don't actually in front of me right now.

PN128

MR CLARKE: There's a spare copy.

PN129

THE COMMISSIONER: I have a document which is the certification of the agreement and an attached version of it which I assume is what has been published, so that's PR971097.

PN130

MR CLARKE: Yes.

PN131

THE COMMISSIONER: So you want to take me to the dispute resolution?

PN132

MR CLARKE: Yes. So the dispute resolution clause is clause 43 of the agreement appearing on page 23. The first statement of Ms Pike in the proceedings which I'll tender formally through the witness in a moment deposes to compliance with the various sequential requirements in that dispute procedure, namely at 43.1(a) to (c).

PN133

THE COMMISSIONER: It might be useful if we dispose of the question of whether there's any controversy about that now. Is there any suggestion that the procedures have not been complied with up to the point of arbitration?

PN134

MR COULTER: Not from my perspective, Commissioner, no.

PN135

THE COMMISSIONER: Good, thank you, all right.

PN136

MR CLARKE: Yes, okay. So clause 43.2, Commissioner, of the agreement provides a dispute may come to the Commission for conciliation, if necessary arbitration to determine where it's not resolved as between the parties or the representatives, and that's the point we're at here pursuant to item 2 of schedule 7 of the Act, which is essentially that part of the Act that allows section 170LW and related sections to continue to operate in relation to pre reform agreements. This is a pre reform agreement certified post Work Choices, but the application for certification was made before Work Choices. The mechanism behind that is explained in the submissions but just for completeness I refer to it now.

PN137

It's a dispute about the application of the agreement. It's best described as a classification dispute arising out of the application of clause 19.3 of the agreement to a change in the work of persons who I've referred to in the written material as the fire dispatchers employed by the employer. The fire dispatchers perform what's really a front line role in terms of their criticality for the purpose for which the employer, a statutory corporation, was created, that is, they despatch the emergency resources in response to 000 phone calls. The attachment to the submissions shows an extract from ESTAs website, which has a nice little picture of people on the phones and a fire truck and shows where they fit in. But the point really is if they don't do the job then emergency response doesn't happen, and we say that that carries a high burden of responsibility in their work by any measure.

PN138

We say the fire dispatchers work has changed, and the issue before the Commission is how that change interacts with the classification structure set out in clause 19 of the agreement. If one looks to clause 19.2, relevantly there you see the differing pay rates for people employed as dispatchers, and there's dispatchers at level 1, 2, 3 and 4. The fire dispatchers which this matter concentrates on are currently paid by the employer at the dispatcher level 2 rate in that table for post
1 January 2007.

PN139

The applicant is seeking in these proceedings that the employer be required to pay the fire dispatchers at dispatcher level 3, which is an increase of approximately $54 per week. Clause 19.3 which is headed salary criteria sets out discriminators between different levels of employees at different levels of the classification. Parties were free to choose any discriminator they liked including various levels in accordance with the Australian Qualification Framework such as I, II, III diploma, et cetera, but they didn't obviously. However, a continuing theme in the classification descriptors is the number of services the employees are able to and required to call take or dispatch for, and that theme is clear in the subparagraphs of clause 19.3, particularly (e) to (l) inclusive and (n) when it speaks of dispatching for at least X number of emergency services. The emergency services themselves are set out in clause 19.4, and relevantly include the Country Fire Authority, the Metropolitan Fire Emergency Services Board and the State Emergency Service.

PN140

The significance of the change in the work of the fire dispatchers is in dispute, but the applicant says that the fire dispatchers have been trained to and now do dispatch to three emergency services, being the CFA, the MFB and the SES. The applicant does not say that the fire dispatchers have been trained to or required to perform dispatching of all the SES resources or all SES events, but we don't accept that that in itself prevents the fire dispatchers from being remunerated at the dispatcher level 3 level. We say that it needed additional condition in the agreement to make that so.

PN141

THE COMMISSIONER: To make what so?

PN142

MR CLARKE: To preclude the fire dispatchers from being elevated to level 3 on the basis of dispatching some but not all of the SES. You would require something in the agreement to say that it's only open to people who would dispatch the full gamut.

PN143

THE COMMISSIONER: Well, that's the core device in your argument isn't it?

PN144

MR CLARKE: Sorry?

PN145

THE COMMISSIONER: That is the core device in your argument isn't it?

PN146

MR CLARKE: That's a significant part of our argument, Commissioner.

PN147

THE COMMISSIONER: Because what you do, you say you look for words which somehow or other constrain your interpretation, and if they're absent therefore your interpretation is correct?

PN148

MR CLARKE: That's the reason, yes. We say and refer to this in our second submissions that there are four pathways open to dispatchers to progress from level 2 to level 3, but you'll see in our written submissions that we concede that only two of those are open to the fire dispatchers, and we refer to those as the second pathway and the fourth pathway. What we say is the second pathway - - -

PN149

THE COMMISSIONER: Just bear with me, I'd like to look at your written submissions while you're addressing me.

PN150

MR CLARKE: This is the second submissions.

PN151

THE COMMISSIONER: Yes, this is your more recent submission. What page is that on again, just take me to it?

PN152

MR CLARKE: Page 6. So there we say what we're calling the second pathway we say arises pursuant to clause 19.3(j) of the agreement, that is, that the fire dispatchers have gained and maintained their accreditation in dispatching for at least three emergency services. And what we call the fourth pathway we say arise under clause 19.3(o), that is, the fire dispatchers are required to apply the competency associated with dispatching to a third emergency service and the appropriate increment is an increase from level 2 to level 3.

PN153

So if you look to those clauses and particularly 19.3(j) the more intricate level of dispute if you like is around the notion of accreditation.

PN154

THE COMMISSIONER: Well, doesn't it arise in relation to (o) as well, because the word accredited is used?

PN155

MR CLARKE: What's referred to is competencies and requisite competencies in (o).

PN156

THE COMMISSIONER: But the words which actually give rise to the application of an increment. Are we talking about an increment, or am I misunderstanding?

PN157

MR CLARKE: The part of clause 19.3(o) that I draw your attention to is the last sentence, Commissioner.

PN158

THE COMMISSIONER: Yes, that's what I'm referring to.

PN159

MR CLARKE: So you have a - - -

PN160

THE COMMISSIONER: It only applies to accredited employees.

PN161

MR CLARKE: That's right. And I'm saying that we have to get to the bottom of what this issue of accreditation means.

PN162

THE COMMISSIONER: I couldn't agree more. I must say when I read your submissions it seemed to me that's pretty much the nub of things.

PN163

MR CLARKE: Yes.

PN164

THE COMMISSIONER: It seems impossible to decide this matter without deciding the meaning of accreditation within the context of the agreement, and that things will turn essentially on that.

PN165

MR CLARKE: Yes.

PN166

THE COMMISSIONER: It's difficult to see how unless one - sorry, I withdraw that. It's difficult to see how the matter can be decided except on the basis of the meaning of accreditation.

PN167

MR CLARKE: I agree.

PN168

THE COMMISSIONER: And whichever the decision is about that meaning will determine the matter effectively.

PN169

MR CLARKE: I agree, Commissioner, yes.

PN170

THE COMMISSIONER: And I don't think there's anything before me that could lead to another means of producing an outcome either consistently with your case or that of ESTA. Do you accept that?

PN171

MR CLARKE: I accept that, Commissioner, yes.

PN172

THE COMMISSIONER: All right.

PN173

MR CLARKE: But we say that the answer to what accreditation is, is simply that accreditation is recognition by the employer that the employee successfully completed the training the employers required them to undergo. We don't accept accreditation in the context of the agreement requires completion of a training course which forms part of the scope of registration of ESTA as a registered training organisation.

PN174

THE COMMISSIONER: And that seems to me to be the difference between the parties. Do you accept that?

PN175

MR CLARKE: Yes, I accept that.

PN176

THE COMMISSIONER: It seems to me that your case is that accreditation is to be applied in a broad sense, whereas ESTAs case is that it's to be applied having regard to the full extent of training completion in relation to the whole of the services listed. I don't expect you to speak for them, but am I missing something from your perspective?

PN177

MR CLARKE: You're not missing anything from my perspective, no. That was the sort of brief introduction that I intended to give given that we've already filed the written material. I was intending now to call Ms Pike, but I think it's perhaps appropriate, there are other witnesses in the room, that they not remain.

PN178

THE COMMISSIONER: Yes. There doesn't seem to be any need for any witnesses to remain, Mr Coulter, they've all given statements.

PN179

MR COULTER: No, there's no reason why they have to be if it's the Commission's wish that they not be here.

PN180

THE COMMISSIONER: Well, it's usual practice because there may be some conflict in the evidence. Well, that doesn't appear so from the statements. So if any person who is to give evidence in this matter is present other than Ms Pike, who is shortly to take the stand, could they please leave the hearing, and you will be called as required, thank you. Yes, Ms Pike.

PN181

MR CLARKE: Yes, thank you, I'd like to call Ms Pike.

<JANENE PIKE, SWORN [10.24AM]
<EXAMINATION-IN-CHIEF BY MR CLARKE

PN182

MR CLARKE: Thank you, Ms Pike, if you could just state your name and address for the record?---Janene Pike (address supplied).

PN183

And have you prepared two witness statements for use in these proceedings?---I have.

PN184

Do you have those with you?---I have my copies, yes.

PN185

Yes, okay. Are they true and correct?---They are.

PN186

I'd like to tender those two statements if I may.

PN187

THE COMMISSIONER: Yes.

EXHIBIT #A1 STATEMENT OF JANENE PIKE WITH ATTACHMENTS
EXHIBIT #A2 SUPPLEMENTARY STATEMENT OF JANENE PIKE

PN188

MR CLARKE: I'd like to hand you two documents if I may, also copies to Mr Coulter and to your associate, Commissioner. Are you able to identify those documents, Ms Pike?---Yes. they're the documents I received when I completed my training with my original employer Intergraph.

PN189

THE COMMISSIONER: Do you seek to exhibit these?

PN190

MR CLARKE: Yes.

PN191

THE COMMISSIONER: I'll put them together as exhibit A3.

EXHIBIT #A3 CERTIFICATES

PN192

MR CLARKE: Did you undergo training to acquire those certificates, what appear to be certificates in call centre operation, public safety?---I did.

PN193

And after you obtained those qualifications what was your role with the employer?---I was an operational Country Fire Authority and Melbourne Metropolitan Fire and Emergency Services Board dispatcher at the Tallyho centre.

PN194

Okay. Dispatching to how many emergency services?---Two emergency services.

**** JANENE PIKE XN MR CLARKE
PN195

Being?---The MFESB and the CFA.

PN196

Now, at the bottom of those documents there's a list in the left hand corner saying units of competency, can you see that?---Yes.

PN197

Recalling your training as best as you can do you recall if all of those units of competency related exclusively to work in relation to the MFB and the CFA?
---The exclusive ones, Certificate II, process agency calls specific to fire, Certificate III, the bottom two, which repeats process agency calls and facilitate event response.

PN198

Right. So of the Certificate II there was one unit of competency that related specifically to emergency services?---Correct.

PN199

And the Certificate III there were two?---That's correct. The second one built upon the first one.

PN200

Were you issued any other document that stated that you were accredited to dispatch to two emergency services?---No. These are my documents.

PN201

And how many emergency services do you dispatch to now?---Three.

PN202

Can I ask you to turn to paragraph 14 of your first statement? There you're referring to your role under CAD 7.7 in relation to the State Emergency Services, yes?---Yes.

PN203

Now, you say your sole responsibility was to contact the SES dispatcher at the Victoria Police Centre?---That's correct.

PN204

Right. Do you now actually perform SES dispatch yourself?---I do.

PN205

At paragraph 11 of your statement there are references to communicating with the MFB and the CFA over the radio, subparagraph (d), subparagraph (d)(i) and the final statement under paragraph 11?---Mm.

PN206

Do you communicate with the SES over the radio now too?---No.

PN207

Can I take you to paragraph 5 of your first statement? You've got a table set out in that statement, the locations of various employees who dispatch to emergency services?---That's correct. Other than the ones I dispatch there, that's them there.

**** JANENE PIKE XN MR CLARKE
PN208

Okay. On the second row do you make reference to SES dispatch, State Emergency Services dispatch being carried out at the Victoria Police Centre in Melbourne and Mount Helen, Ballarat? Does SES dispatch at Mount Helen involve communication with SES over the radio?---No.

PN209

It doesn't?---No.

PN210

Can you tell the Commission what road rescue is?---It's a generic term for SES rescue response. It's not always road rescue, it's just a generic term that's used in the business as it were.

PN211

THE COMMISSIONER: What are the range of rescues that you're familiar with?

PN212

MR CLARKE: I'm coming to that?---Okay. Anything from aircraft incidents, crashes or imminent crashes, rescues other than road rescues.

PN213

THE COMMISSIONER: People trapped in houses?---People trapped in cars certainly, and that's about - - -

PN214

Cars. What about houses?---Any trapped environment, any industrially trapped environment, aircraft crashes, anything that requires a rescue response from the SES. So it's a false term, road rescue.

PN215

Could it be for instance a bush walker lost?---If the type of event is - if we know he's trapped or she's trapped.

PN216

Right. There has to be entrapment of - - -?---There has to be a trapped component to require the SES to come along.

PN217

So if they were trapped on a cliff for instance because they were afraid to move?
---Absolutely right, yes.

PN218

MR CLARKE: Can I take you to paragraph 16 of your statement?---Yes.

PN219

You make reference to SES event types that you dispatch to as being part of an exhibit JP4 to that statement?---Yes.

PN220

Do you have a copy of exhibit JP4?---I don't.

**** JANENE PIKE XN MR CLARKE
PN221

You don't. If I may provide the witness with a copy of exhibit JP4?---Thank you.

PN222

Now, you go on to say in paragraph 17 that, in bold text of that exhibit, the event types, the SES event types that you dispatch for?---Yes. I became responsible for these event types when 7.9 was introduced, and they're all the rescue type incidents that the SES respond to.

PN223

So looking at the description there, there's aircraft accidents, there's rail accidents and car accidents, industrial accidents and rescue of a person trapped?---Correct.

PN224

But you're saying nonetheless road rescue is a generic term?---That's found its way into the vernacular but it really is SES rescue.

PN225

Okay, all right. There's no further questions from me, Commissioner.

PN226

THE COMMISSIONER: Thank you. Mr Coulter?

<CROSS-EXAMINATION BY MR COULTER [10.34AM]

PN227

MR COULTER: Ms Pike, you've mentioned - throughout your statement you refer to SES dispatch?---Yes.

PN228

I just want to make it clear that the correct reference here isn't in fact SES dispatch, it is road rescue dispatch, so we're clear we're talking about only, absolutely only road rescue dispatch, is that correct?---Road rescue is just a term meaning SES rescue.

PN229

Road rescue as defined in your document I accept to a degree. I challenge one part of it, but I accept your statement in relation to the number of items that are defined under the generic term road rescue, that we're talking about road rescue as in those event types that you've identified?---I call it SES.

PN230

I think we've got to be clear, it's a very important one. We're talking about SES road rescue?---I don't know - - -

PN231

I think we know what the definition of road rescue is because you've provided that definition, so is that what we're talking about?---Sorry, where is my definition provided?

PN232

You just talked - Mr Clarke just gave it to you?---As I said, it's a generic term. It's actually SES rescue response.

**** JANENE PIKE XXN MR COULTER
PN233

That's generically termed. I think you use the statement yourself, that is generically called road rescue is it not?---It's known in the industry as road rescue, but it's an SES rescue response.

PN234

Okay, it's road rescue absolutely. There are 17 items there, is that correct, nine of which are now done by dispatchers?---Correct.

PN235

And how many of those events had SES recommended under CAD 7.7?---The SES dispatcher recommended all of those events under 7.7.

PN236

So it had the - - -?---There's a couple of new ones with 7.9 actually, but generally speaking all of those were done by the SES dispatcher.

PN237

So how many were done by the fire dispatchers?---None.

PN238

And you didn't recommend any under 7.7? How many were recommended under 7.7?---Well - - -

PN239

I'm talking about recommended?---Our system, when we got a multi agency event, recommended a dummy unit, but that wasn't necessary. The unit that was sent out by the SES dispatcher in live.

PN240

The point is you were still involved in all those events, and the difference is, as I understand it, that in your terminology now you recommend, previously you dispatch rather, and now you - previously you recommended?---Previously all of those events were recommended because they elicited an MFB or CFA response regardless.

PN241

So they're not a novelty?---As an adjunct to that a dummy response unit, if it was appropriate, was recommended by the 7.7 system. It wasn't live, it didn't have any effect on anything, and we rang the SES dispatcher in order to let them know what our system recommended regardless of whatever theirs did.

PN242

So my point here is that they're not a novelty, you were always involved in those?
---Always we were involved in all of these, yes.

PN243

Correct. Are the MFB and CFA also dispatched to those events?---That's what I said, all of those types of events we are always responding appliances.

**** JANENE PIKE XXN MR COULTER
PN244

So you've always dispatched MFB and CFA as distinct from SES to those type of events?---As appropriate, yes.

PN245

And now you're dispatching SES?---That's correct, we are dispatching live SES.

PN246

Okay. So again these things are not novelty, you've always done them before but in relation to MFB and CFA?---In relation to the two services I've been accredited, that I have worked for CFA and MFB I've always responded for those.

PN247

You indicated that trapped in houses was also one of those events, is that correct?
---Well, if there's anything, a rescue, possible person trapped.

PN248

Okay. I'm not certain of that. I'll just go back to some other points. In your role as a fire dispatcher what are your most significant functions in your view, take into consideration your total fire dispatcher role? And I'm not just talking about road rescue here, I'm talking about your total role as a fire dispatcher, what are your most significant functions do you think?---As a fire dispatcher if I am working on the phones I accept a call, I take a call, accept a call and then recommend the appropriate units, which now include CFA, MFB and SES depending on the circumstances.

PN249

Would you say fire, the actual fire events are more significant than the road rescue events?---I think if any service is recommended they're recommended for a reason, they're all as important as each other. If a rescue is responded it has to get there as quickly whether it's a fire one or an SES one. If they're the appropriate response they're as important as anybody else.

PN250

Would you regard the fire events as more detailed, more involved - - -

PN251

THE COMMISSIONER: I think she's answered that question with respect, Mr Coulter. She said they're all of equal importance.

PN252

MR COULTER: There's a level of - it may well be important. We're not saying that individual events are not important.

PN253

THE COMMISSIONER: Sorry.

PN254

MR COULTER: I'm not saying that individual events are not all important.

**** JANENE PIKE XXN MR COULTER
PN255

THE COMMISSIONER: No. I think the question that you asked earlier was to do with the dispatch, which service.

PN256

MR COULTER: There's an issue of what is complexity, where the point that we make is that road rescue is a relatively simple task - - -

PN257

THE COMMISSIONER: Well, that may be a point that you can elucidate by your evidence, but the issue at hand instantly is simply whether or not the witness has been asked the question and answered it. Procedurally that's the only issue. And I thought she gave a very clear answer that she considered them all of equal importance.

PN258

MR COULTER: But she didn't say whether one was more complex than the other.

PN259

THE COMMISSIONER: You wish to ask her about the complexity?

PN260

MR COULTER: Correct.

PN261

THE COMMISSIONER: Very well, that's different. But you used the word important.

PN262

MR COULTER: Yes, I beg your pardon.

PN263

In terms of complexity which would be regarded as being the more complex, the fire activities or the road rescue activities?---As a dispatcher you're saying?

PN264

Yes?---Initially they're all exactly the same. The dispatch component for each service, MFB, CFA and SES is very similar. The only difference is whether they're paged or whether a station announcement happens in order to notify the brigades that they have to attend. After that it's also the same, I have to note the times on my job that each appliance turns out, CFA, MFB and SES, and if there's non compliance of any of those my response is similar, I have to re-page CFA, MFB or SES, so all the way through it's the same level until such time as there's a radio turnout or an acknowledgement from any of those. I can see - I can hear the acknowledgement from the CFA and the MFB on the radio when I'm a radio dispatcher and I can see the acknowledgement of the SES on my screens, so it's pretty much the same all the way through, my responsibilities, and the gravity of each is the same all the way through to that point. After that point my response on radio only, not dispatch, but radio is the CFA and MFB, typing everything they say onto the screen onto the event, and from that point of radio work on for acknowledgement from SES on I don't have anything to do with SES.

**** JANENE PIKE XXN MR COULTER
PN265

Okay, thank you. Comparing - - -

PN266

THE COMMISSIONER: Sorry, just before you proceed, Mr Coulter.

PN267

When you say from the point of view of acknowledgement on you don't have anything to do with SES?---Correct.

PN268

From the point of view of acknowledgement on in relation to the two services in which you are unquestionably accredited do you have responsibility?---I do, sir. I have a responsibility of responding to the radio.

PN269

So your interaction continues after dispatch with the other two services but ceases at dispatch with the SES rescue?---No. It actually ceases at acknowledgement, which can be some minutes down the track.

PN270

Sorry, I beg your pardon, it ceases at acknowledgement?---Correct. So if there is no acknowledgement I have a whole process of things to do for SES. CFA - - -

PN271

But that appears to me to be the difference as between the two services in respect of which you are unquestionably accredited?---That's right. So my dispatch is the same all the way through for all of the services as a dispatcher, but my radio work continues for MFB and CFA, and there is none for SES.

PN272

Very well.

PN273

MR COULTER: Thank you. Ms Pike, you're comparing the road rescue function for SES and the road rescue function that you've always performed for MFB and CFA. Is there much difference between those two?---Well, just as I described. If they're recommended they do what they do on the road and I do what I just described.

PN274

But as I would understand the difference is you're going through much the same process. On one situation you're dispatching, or the system indeed dispatches an MFB or CFA appliance and the other is an SES appliance?---The dispatch component is exactly the same for all three, CFA, MFB and SES, so the actual dispatch component is exactly the same, my responses are exactly the same. The timing may be different, two minutes for MFB, four minutes for SES, six minutes generally speaking for CFA, but I have to keep my eye on the non response. I've got a whole series of things to do for non response, but once they're acknowledged they're the difference happens. I stop with SES and I keep going with CFA until it closes, and MFB.

**** JANENE PIKE XXN MR COULTER
PN275

Thank you. You work as a fire dispatcher at Tallyho. Have you ever worked as an SES dispatcher at the VPC where they do the full SES activity?---No.

PN276

You're aware of the SES functions performed by the VicPol operators?---Not really. I haven't had an opportunity to go over there and have a look.

PN277

So it would be unfair to ask you what the comparison between what they do and what you do?---I've read information, I believe what I do and what they do is similar up to acknowledgement, and I believe the only difference is that they answer the phone to acknowledge a call, and if there is any radio content they will deal with that on the radio, but most often there isn't any radio content. I think that's the difference.

PN278

All right. But you don't know.

PN279

THE COMMISSIONER: What I'm thinking - correct me if I'm wrong - is that if one were to make a comparison between the role and function that you perform from your perspective and that performed at the World Trade Centre is that it's largely in the area post acknowledgement?---Correct.

PN280

Thank you?---Whereas the one in Ballarat is pretty much what we do. The SES component of Ballarat is pretty much what we do. There's no radio activity, but they answer the phone to acknowledge, which is the one thing we don't do, and take messages relating to - specifically as it relates to an event. So they may have to action stuff from that point, but that's what we don't do.

PN281

MR COULTER: You stated in item 20 of your statement, I think your initial statement, and I quote "The SES unit is paged via the fire dispatcher." Would it not be more accurate to state that the CAD system initiates a page to a recommended rescue unit regardless of agency and does that automatically once turnout is initiated?---That's right. It's my responsible to recommend and dispatch what the CAD system generates.

PN282

That the CAD system in fact dispatches does it not?---Yes. I don't go and personally ask them to attend an event, the CAD system does it, yes.

PN283

THE COMMISSIONER: But do you have to activate that, Ms Pike?---I have to activate it. I recommend the event, the recommend the appliances or the units.

**** JANENE PIKE XXN MR COULTER
PN284

But the communication is via the CAD system?---Of course.

PN285

But you are the initiator of that?---Yes. Nothing happens unless I press that button.

PN286

MR COULTER: Doesn't that process make it easier for you to initiate a turnout for SES rather than the old system of making telephone calls?---The old system of making telephone calls bore no effect whatsoever on the event. For us it was just a work flow that we had to comply with but it bore no relation to - it had no effect on the event at all because the SES dispatcher had already done what we were telling them to do. As soon as a multi agency event is accepted into CAD new system or old system all of the agencies involved with it automatically have the event appear on their screen and automatically the dispatchers start dealing with it. The dummy event was just like a big red herring for us that we had to deal with in a work flow. The SES operator had already 99.9 per cent of the time sent out the page to the SES units precisely as we do now. We do exactly what they did. Before they pressed the button to recommend and dispatch, now we press the button to recommend and dispatch.

PN287

Whereas previously you pressed the button and recommended to a dummy unit?
---That's right, whether it was the unit that was actually sent by SES or not, it wasn't always the case, but yes, it was a dummy unit that was recommended on our system, which meant we had to ring the SES dispatcher.

PN288

Your statement refers to the agreed work flow contained in the flowchart which is paragraph - - -?---I'm sorry, where were you looking?

PN289

At paragraph 8 of your JP2?---Paragraph 8 of JP2.

PN290

Which is the agreed work flow?---The one that's in my previous statement I made?

PN291

Yes, it is. You don't need to refer to it in this question. That clearly indicates that there was CAD operation required both pre and post dispatch assigning dummy units, which you do?---Sorry, is this in paragraph 8 of the second statement?

PN292

THE COMMISSIONER: I think it's in paragraph 8 of JP2, which is an attachment to your statement?---Where am I?

**** JANENE PIKE XXN MR COULTER
PN293

JP2 is a work flow diagram.

PN294

MR COULTER: I beg your pardon, I assumed that you had JP2?---No, I'm sorry, I don't have the attachments.

PN295

THE COMMISSIONER: Has it got paragraph numbers?

PN296

MR COULTER: Sorry, it's paragraph 8 of your statement, I beg your pardon, so correct.

PN297

THE COMMISSIONER: That's the first statement?

PN298

MR COULTER: Yes, paragraph 8 relates to JP2?---This is the agreed work flow that we worked on.

PN299

Yes, that's correct?---If I could have a look at it, I think the only difference was where dispatch line went - - -

PN300

I don't think you need to look at it for the sake of this. Just let me finish the question first. If you wish to that's fine. I'm just asking would it be correct to say that you have underestimated your role in CAD 7.7 in what you say in paragraph 8?---Well, let me look at it and I'll - - -

PN301

You state in your first statement at paragraph 14, where you say - - -

PN302

MR CLARKE: Commissioner, if I may?---So paragraph 14, sorry, go on.

PN303

MR CLARKE: Sorry, Commissioner, if I may?

PN304

THE COMMISSIONER: I think we're going a little bit too fast. Are we talking about paragraph 8 of Ms Pike's original witness statement?

PN305

MR COULTER: Yes.

PN306

THE COMMISSIONER: Let's see. Do you have that in front of you, your original statement?---I have the witness statement but - I have the statement.

PN307

Do you have paragraph 8?---Yes, I do, sir, but I don't have JP2 with me, the agreed work flow chart.

**** JANENE PIKE XXN MR COULTER
PN308

All right. Yes, Mr Clarke.

PN309

MR CLARKE: Paragraph 8 simply refers to the exhibit and says how it comes about. I don't think it's fair to ask the witness about the exhibit without it being near her.

PN310

THE COMMISSIONER: I agree with that. It's really just a question of ensuring that she's provided with a copy in the witness stand, and my associate will take one?---The only difference with this is that the line between call taking and dispatch goes above, one box above where it is.

PN311

MR COULTER: I'm just saying, your statement that "My responsibility was solely to contact the VPC." What my suggestion - - -?---Now where's that, sorry?

PN312

That's in paragraph 14 of your statement?---Yes.

PN313

You say, and I quote "My responsibility was solely to contact the VPC"?---Yes, that's it.

PN314

Do you think that understates your involvement under the CAD 7.7 arrangements?---No.

PN315

You don't? Well, it would seem to contradict what you said in paragraphs 11(a) (b) and (c) which goes into far greater detail in telling you what you do in relation to CAD 7.7?---Once it's been recommended that was my sole responsibility, dispatch.

PN316

That's all, that's all you did?---To ring up the SES.

PN317

THE COMMISSIONER: Sorry, can I just interpose for a moment? Paragraph 11 deals with the fire services doesn't it?

PN318

MR COULTER: I think it includes the totality of the service.

PN319

THE COMMISSIONER: Well, what's stated however in paragraph 11 refers to the fire services. Now, it may - - -

PN320

MR COULTER: Well, it's headed both Fire/SES.

**** JANENE PIKE XXN MR COULTER
PN321

THE COMMISSIONER: What, in paragraph 11?

PN322

MR COULTER: The first line of it does, yes.

PN323

THE COMMISSIONER: I beg your pardon?

PN324

MR COULTER: Dispatch function under CAD 7.7 for both fire - sorry, I'm reading it incorrectly. I beg your pardon, sorry, I was reading that as SES.

PN325

THE COMMISSIONER: But there is also a reference to the SES system in the subparagraph (c).

PN326

MR COULTER: There is. All I am suggesting to Ms Pike is that there is suggestion in there, there was greater detail in terms of what she did for road rescue, SES road rescue under CAD 7.7.

PN327

THE COMMISSIONER: Well, you might point that out to her where it appears in paragraph 11, because it seems to me that subparagraph (c) and in particular the last sentence thereof is consistent with what it was that you referred to a moment ago.

PN328

MR COULTER: Well, I think the important point to note here is that the only real change in terms of what's happening is that previously where they were dispatching to a dummy unit they're now dispatching to a live unit, so there's - - -

PN329

THE COMMISSIONER: Well, I understand that, but at the moment we're really just concerned with the order of the evidence of the witness, and you were putting it to her that there was some contradiction in her evidence, and in order for that to be fairly put to her I think you need to point out what that contradiction is otherwise it becomes - - -

PN330

MR COULTER: I can't go to level detail.

PN331

THE COMMISSIONER: Well, what I'm suggesting to you is that in fact the question does lack foundation, because a proper reading of clause 11 is that the statement was addressed to the fire services. It does in subparagraph (c) make reference to, in the case of the SES system, and is consistent with the remainder of the statement.

**** JANENE PIKE XXN MR COULTER
PN332

MR COULTER: I accept that. I may just read - - -

PN333

THE COMMISSIONER: Well, I mean, it's important because essentially it's a challenge to the credit of the witness and, as such, a proposition that a witness has internal contradictions within their evidence, and in particular in their witness statement, is potentially quite damaging to whether or not their evidence will be accepted at all. And so in those circumstances it is necessary to be very rigorous about the question of whether or not it's accepted that there is or isn't a contradiction and the way in which the witnesses are required to respond.

PN334

MR COULTER: Can I just say I'm not suggesting that Ms Pike has done anything deliberately to give something which is wrong or misleading. All I'm suggesting is that maybe she's undecided - - -

PN335

THE COMMISSIONER: Well, that's a different thing. That's perjury you're talking about, not credit.

PN336

MR COULTER: No. There's no, I suggest, nothing improper as far as - - -

PN337

THE COMMISSIONER: No, I wasn't suggesting that you were asserting that, but I'm simply making the distinction that the credit of the witness is always an important question where there's conflict in the evidence or conflict in a case. When you get to that point where credit is being raised the process becomes very rigorous.

PN338

MR COULTER: Yes. But it's not uncommon I guess for somebody to build up or glorify if you like a function and not build up the old, the previous function the same way.

PN339

THE COMMISSIONER: The issue here is whether or not the evidence is of such a nature.

PN340

MR COULTER: I'll rephrase the question if you wish and just ask Ms Pike if
she - - -

PN341

THE COMMISSIONER: What was the paragraph number where you said that you thought that the evidence in the witness statement was underestimating the role?

**** JANENE PIKE XXN MR COULTER
PN342

MR COULTER: Fourteen, which says "My responsibility was solely to contact the VPC." What we're suggesting is, is that a responsibility - - -

PN343

THE COMMISSIONER: Isn't that consistent with the last sentence in 11(c)? It seems to me to be consistent, except the use of the word solely, but is there something else that was done?

PN344

MR COULTER: No. All I'm saying is, and it goes back to the point which I'll make again later on, you know, there's not a great change in what's being done here.

PN345

THE COMMISSIONER: Well, that's a submission obviously. I'm just concerned with what you're putting to Ms Pike, whether you're suggesting to her indirectly that in fact her evidence is wrong in paragraph 14, and that it's also wrong insofar as 11(c) in the last sentence is an underestimation of the roles that were played prior to the 7.9 version.

PN346

MR COULTER: Yes. I make no comment in relation to 11, but certainly in relation to 14 I think it's incorrect to say the word solely.

PN347

THE COMMISSIONER: Well, in that case I think you're obliged to put to the witness what there was other than her evidence that she was responsible for.

PN348

MR COULTER: Look, I don't have that detail. I need my witnesses to address that.

PN349

THE COMMISSIONER: Well, you see, that's the whole point. Whilst I'm not strictly bound by the rules of evidence, if you follow the rules of evidence, and you are contesting the contents of paragraph 14, you should properly be contesting it on the basis of evidence that will be led on your part. And if it is your intention to lead evidence that what Ms Pike describes as her sole responsibility was not her sole responsibility, and you intend to rely on the evidence to that effect you are obliged to put to Ms Pike what evidence will be brought on your part to disprove her assertion of that being her sole responsibility. And that is a very fundamental rule of procedural fairness.

PN350

Otherwise Ms Pike simply doesn't have the opportunity to comment on evidence that you will be calling. She will have been cross-examined, you will have put to her that she is wrong. You won't have put to her why she is wrong. She won't have had the opportunity to say whether she agrees or disagrees with you. She will have given no evidence on that point. And then you potentially call a raft of witnesses which attempt to prove that she is wrong.

**** JANENE PIKE XXN MR COULTER
PN351

MR COULTER: I accept that.

PN352

THE COMMISSIONER: I mean, that's a sort of laborious explanation of the principle at stake but it is pretty fundamental to any evidence which is in conflict.

PN353

MR COULTER: I accept that and I apologise for any misunderstanding.

PN354

THE COMMISSIONER: No, there's no need for an apology. It's just that in monitoring the proceedings I'm obliged to ensure that both parties get a fair go.

PN355

MR COULTER: Perhaps I could just leave it by asking Ms Pike if she believes that there is more than just, my words, where she has stated that her responsibility is solely to contact the VPC.

PN356

THE COMMISSIONER: Under CAD 7.7.

PN357

MR COULTER: Under CAD 7.7.

PN358

THE COMMISSIONER: Does she affirm that?

PN359

MR COULTER: Do you affirm that, correct?---In relation to the SES.

PN360

Is that all you did?---The CFA function as I described in 11, that was a CFA and MFB work flow, it's a fire work flow.

PN361

Yes. The question is - - -?---My responsibility to the SES was simply to contact the SES dispatcher.

PN362

That's all you did?---With a recommend function and a dummy unit, the dummy unit was just a work flow. My responsibility to the actual SES dispatcher was to tell him what that work, you know, what the response was to that dummy work flow, and so as far as my live communication with the SES it was simply to ring them and say this is what my CAD has recommended.

PN363

But you're narrowing it down. In terms of your total SES road rescue function there was more than just contacting the Victoria Police Centre, that's my point?
---Well, just within the fire work flows?

PN364

No. I'm saying for SES road rescue under 7.7 there is a range of work that you do?---Yes.

**** JANENE PIKE XXN MR COULTER
PN365

And there is more in that range of work than just contacting the VicPol operator?
---Within the fire work flow that recommended a dummy SES, then my responsibility, my sole responsibility if it did that was to contact the SES dispatcher and tell them what the recommended dummy unit was, whether that was what was recommended in the end or not.

PN366

No, you've missed the point. I may well just drop off it because I'm not getting anywhere here. You have a - I don't care about the work flow, but in terms of what you do for dispatching road rescue for SES under CAD 7.7, was there more than just contacting VicPol operator?---I had no dispatch function for SES, no live dispatch function whatsoever with 7.7.

PN367

I'll drop off the question.

PN368

THE COMMISSIONER: You see, the difficulty here, Mr Coulter, is I don't want you to feel aggrieved if, as one might reasonably anticipate, you call a witness that is going to give evidence specifically about any additional functions to those that have been described by Ms Pike.

PN369

MR COULTER: That's okay.

PN370

THE COMMISSIONER: And Mr Clarke says, well, I object. If this person says, well, these are the additional functions 1 through 10, because what Mr Clarke would rightly say is, well, Ms Pike was in the witness stand, this could have been put to her, it wasn't. Now, the alternative of course is that Ms Pike will be called to rebut the evidence when it does appear, and that will be available to Mr Clarke to seek, but one way or the other that is going to depend upon the case and your perception of it as well. So it's not just consequences for Ms Pike's case, it's consequences for yours as well that arise.

PN371

I mean, this isn't a criminal trial obviously and we shouldn't manage it anything like that now, but if someone was accused of crime and they're never given an opportunity to answer questions about the evidence that's going to be brought against them they can hardly be said to have had a fair process.

PN372

MR COULTER: I understand what you're saying.

PN373

Ms Pike, in your second witness statement you concentrate on the audit and assessment processes. Leaving aside the fact I understand that they have changed slightly, but that's not important here. I'm wondering what your point is in providing that information given that all call taking and dispatch functions are audited?---Sorry?

**** JANENE PIKE XXN MR COULTER
PN374

What is the point in - - -

PN375

THE COMMISSIONER: I think that's for Mr Clarke, with all due respect, Mr Coulter. It's simply factual material, it should be treated as such for the purposes of the evidence.

PN376

MR COULTER: I'll change the question. Are you aware, Ms Pike, that all functions, all call taking and all dispatch functions are audited, not just those of SES or road rescue?---Yes, everything's audited.

PN377

During your work years with ESTAs predecessors you have completed a number of training including training for new processes, new equipment or whatever the case might be, I assume that's correct?---That's right.

PN378

You're aware that training would have been properly recorded and acknowledged as required to the arrangements?---Every time I undergo training if I pass it I get a signature of me and my trainer and then it goes into the training department somewhere.

PN379

Have you ever received a formal accreditation for any of that training?---Well, I figure once I've done the training and the signatures are on the thing I'm accredited to work there, I am accredited to work the machine, and if I wasn't I wouldn't be able to work on the floor.

PN380

You have not received a certificate such as this for any of that training?---I'm sorry, what's that?

PN381

That's the certificate that Mr Clarke handed previously?---No. That's the only certificate I've received from the company as far as my fire services training was concerned.

PN382

That provides your accreditation. So you've not received anything like that for any other training. You didn't receive any of that for the CAD 7.9 upgrade training?---No. I just passed and was assessed and signed off on whatever - whenever I've been trained I have to pass, be assessed, be signed off, I have to sign it, they have to sign it, and unless I've passed and become accredited in that sort of, whatever the training is, I can't work on the floor.

PN383

THE COMMISSIONER: When you say you signed off on something, there is a document in existence is there?---There is for every component of training that is new or changed we have to be - - -

**** JANENE PIKE XXN MR COULTER
PN384

Do you remember what it said?---Sorry?

PN385

Do you remember what it says?---No.

PN386

The particular document that is relevant to SES road rescue dispatch?---No. We don't get to keep a copy, we just sign it, our trainer signs it.

PN387

All right. So you can't recall what it said?---No. But it's very clear that nobody can work on the floor unless they've been trained, assessed and signed off by the trainer and the training department to make you accredited in that particular aspect. If you're not accredited in everything you just - you're simply not allowed to work on the floor.

PN388

MR COULTER: What I meant though is you haven't got a certificate, you haven't got an accreditation certificate as this is?---Not that formal document, no.

PN389

THE COMMISSIONER: But the issue in this case is what the meaning of accreditation is. That document may be expressed in terms that use the word accredited or it may not, and that may be a matter of some importance, because if the word accreditation is used in the document that Ms Pike signed that is a matter of fact which would have to be taken into account. If it is not used that is a matter of fact that would have to be taken into account.

PN390

MR COULTER: I can state, and I do have a copy which I can provide, which is the sign off certificate.

PN391

THE COMMISSIONER: That might be useful if we have it. If you show it to Ms Pike she'll have to identify it.

PN392

MR COULTER: I'll just read it in the first place. It states:

PN393

The operator below -

PN394

And there's a space for the operator to sign:

PN395

- has undertaken the required training session and associated session and has been deemed competent.

PN396

THE COMMISSIONER: Do you recognise that, Ms Pike?---It hasn't got my signature on it or anything else so I don't think it's my document.

**** JANENE PIKE XXN MR COULTER
PN397

MR COULTER: I've said it's not yours. It's a blank that everybody has signed as far as I'm aware.

PN398

THE COMMISSIONER: No doubt Ms Pike's will be on the record.

PN399

MR COULTER: Yes, it could be.

PN400

THE COMMISSIONER: Do you recognise that document at all, does it look familiar to you?---Look, it's similar in that, as I said, the boxes are there that I have to sign, my work trainer has to sign, and then disappears off to training department.

PN401

It looks like the document, or does it not look like the document you signed?---It does.

PN402

Right, okay. I don't think we'll exhibit this. Well, perhaps we will if you wish.

PN403

MR COULTER: We will go - one of my witnesses who is a training manager will go to it in detail.

PN404

THE COMMISSIONER: All right. Well, we'll leave it until that point.

PN405

MR COULTER: So it's a relevant document at that time.

PN406

THE COMMISSIONER: Mr Clarke, I'm going to assume as a matter of fact that it's more probable than not that Ms Pike signed a document of this nature in relation to the training that she received in relation to SES, road rescue and "dispatch."

PN407

MR CLARKE: I don't dispute that.

PN408

MR COULTER: I just add one point. That's a document we are required to do as a formal component of our RTO status and associated arrangements.

PN409

There's one further question. You stated in your, I think your initial statement, and I quote?---Sorry, which paragraph?

PN410

You will recall this, "The training department were of the opinion that the level progression would take place"?---Sorry, where are we looking?

**** JANENE PIKE XXN MR COULTER
PN411

This is the paragraph 26 of your initial statement, and I quote, "The training department were of the opinion that the level progression would take place." I'm just wondering who made that statement and what authority did you understand them to have made that statement?---I'm just not quite there on my 26. My 26 starts "On 30 April 2007."

PN412

It's in that statement on the third last line - sorry, yes, the second last line?---Yes. "I informed Mr Don Diego that it was my view that I and other fire dispatchers who were trained to dispatch SES resources should be progressed to level 3 dispatcher."

PN413

Yes, keep going?---"I also informed from Don Diego that the training department were of the opinion that the level progression would take place."

PN414

My question to you therefore is who made the statement and with what authority did you understand them to have made that statement?---It was general knowledge because our training document said that we would be recommending and dispatching SES, and I don't know specifically who said it from the training department but it was general understanding that the training department at Tallyho were of the opinion that we would progress to level 3 because we were going to be recommending and dispatching on SES events.

PN415

THE COMMISSIONER: How did you come by this knowledge if you can't recall anybody telling you?---It's a very small workplace and - - -

PN416

So do you say that somebody told you this?---This is a huge amount of talk over the time when we were required to dispatch SES.

PN417

But you can't identify anybody who told you?---Not in particular, sir. It was just a general knowledge that SES training would give us the dispatch, and that training thought so too. But I don't know, I didn't specifically speak with anybody who said. It was just generally spoken about.

PN418

All right. So you can't identify the source of this knowledge?---No, sir.

PN419

MR COULTER: So there's only two people in the training section in fact it is.

PN420

THE COMMISSIONER: Mr Coulter and Mr Clarke, I'm not going to put any weight on this part of the evidence.

**** JANENE PIKE XXN MR COULTER
PN421

MR CLARKE: Well, I just point out that the statement doesn't say that the training department were of the opinion. It says that Ms Pike informed Mr Don Diego that the training department were of the opinion.

PN422

THE COMMISSIONER: That's correct. That's another reason why I don't think I should place any weight upon it.

PN423

MR CLARKE: Yes.

PN424

THE COMMISSIONER: So you accept that?

PN425

MR CLARKE: I understand your reluctance, Commissioner, yes.

PN426

THE COMMISSIONER: So you don't need to press it, Mr Coulter. It will be given no weight for the purpose of the decision.

PN427

MR COULTER: I have no further questions of Ms Pike, thank you, Commissioner.

PN428

THE COMMISSIONER: Any re-examination, Mr Clarke?

PN429

MR CLARKE: Some minor matters, a couple of questions.

<RE-EXAMINATION BY MR CLARKE [11.15AM]

PN430

MR CLARKE: Ms Pike, you were questioned by Mr Coulter in relation to - early in his questioning in relation to the recommendation of SES units?---Yes.

PN431

Under CAD 7.7?---Yes.

PN432

Is recommendation, is any significance attached to that word recommendation in terms of your processes?---Once the event is received I have to effect a recommendation for CFA and MFB, but on occasion it would recommend an SES unit as well, a dummy, a non active, non working dummy.

PN433

So are recommendation and dispatch the same thing?---No. A recommendation puts onto your screen what the computer aided dispatch says should go to that event, then I have to decide whether the appropriate appliances are going to the event depending on the circumstances, and then I either leave it the same, take something away, add something on to it, and then I press the button to dispatch which effects the page or the station turnout notification for the appropriate response. So recommendation is one aspect, and then you follow it with dispatch depending on the circumstances of keeping it the same or changing it.

**** JANENE PIKE RXN MR CLARKE
PN434

There was also some questioning both from Mr Coulter and the Commissioner in relation to the work done if you like in relation to SES before they acknowledge the call, before they acknowledge the dispatch?---Is this in point 9?

PN435

Under 7.9, yes?---Yes.

PN436

Before the point of acknowledgement versus after the point of acknowledgement?
---Yes.

PN437

And I think you said that from the point of acknowledgement onwards with SES you don't interface with the SES?---Correct.

PN438

And you conceded that you didn't know about all aspects of what was happening at the Victoria Police Centre?---Yes.

PN439

But you indicated that from the point of acknowledgement onwards at least in some cases they were involved in radio work?---In some cases at VPC in Melbourne.

PN440

And prior to CAD 7.9 when it was CAD 7.7 is it your understanding that the employees at the Victoria Police Centre performed some work prior to the point of acknowledgement for SES?---They did what we do.

PN441

And do they still do that?---No, we do it. That's completely cut out of their work flow, they can't do what we do.

PN442

So is it correct to say that there is a component of SES dispatch that the Victoria Police Centre SES dispatchers no longer do?---Correct. Everything I do they no longer do, they're not allowed to do it, they can't touch the system. Only I can dispatch that SES for those, more than half the events which form the SES event types.

PN443

THE COMMISSIONER: I'm not quite sure I follow that.

PN444

MR CLARKE: Perhaps I'll put it another way.

PN445

THE COMMISSIONER: Is your evidence that since the CAD 7.9 upgrade around half of the dispatch function which was previously performed by SES at Tallyho is no longer performed by them?---No. It previously was performed by SES at the Victoria Police Centre, that's correct.

**** JANENE PIKE RXN MR CLARKE
PN446

Sorry, so let's be very clear. You're saying that at Victoria Police Centre half of the SES dispatch function is no longer performed by them?---Correct. I perform it. Tallyho - - -

PN447

Performed at Tallyho, I beg your pardon, yes?---Yes. So what they - where they previously recommended in dispatch on 17 event types or so, with the advent of 7.9 they now dispatch on less than half of that. The sole responsibility for recommendation and dispatch lies with the operators at Tallyho, not with the SES at all.

PN448

In relation to half the events?---Correct. All of the rescue events - - -

PN449

I beg your pardon?---All of the rescue events which - - -

PN450

All of the rescue events which constitute approximately half of the total?---Just over half, that's right, are now solely dispatched by the operators at Tallyho, and the SES cannot do it.

PN451

Understood.

PN452

MR CLARKE: And from the point of acknowledgement onwards where you say you don't have a role with SES in relation to these events?---That's right, yes.

PN453

The SES dispatchers at Ballart from the point of acknowledgement onwards, what do you understand their work to be with SES?---I understand their work to be, if the SES in the field contact them by phone then they do whatever is asked of them. And if they don't hear anything from acknowledgement, I think it's about an hour after the event is created, they just remove it from the screen, because quite often they don't hear anything at all from them.

PN454

I have no further matters in re-examination.

PN455

THE COMMISSIONER: Very well. Thank you for your evidence, Ms Pike, you're released for the time being at least from giving evidence, but not from attendance. You may be required to give evidence later depending on how the matter evolves.

<THE WITNESS WITHDREW [11.22AM]

PN456

THE COMMISSIONER: That's your case in evidence is it?

PN457

MR CLARKE: That's the case in evidence, Commissioner.

PN458

THE COMMISSIONER: All right. We'll take a brief break before ESTAs case in evidence is brought forward, thank you.

<SHORT ADJOURNMENT [11.22AM]
<RESUMED [11.30AM]

PN459

THE COMMISSIONER: Yes, Mr Coulter?

PN460

MR COULTER: Thank you, Commissioner. Like Mr Clarke I'll just go through a presentation and then call three witnesses.

PN461

THE COMMISSIONER: Very well.

PN462

MR COULTER: Commissioner, ESTAs prime role is to undertake emergency calls, 000 calls that is, dispatch emergency vehicles, police, ambulance, fire and SES, and manage emergency events. The operational component of taking the calls and dispatching services is performed by ESTAs call takers and dispatchers. Police and SES call taking and dispatch is performed at the ESTA State Emergency Communications Centre, the SECC as we call it, located at the World Trade Centre, ambulance, metropolitan fire, MFB, CFA, which the country fire call taking and dispatch for those is performed at the ESTA SECC located at Burwood East where you recently visited, Commissioner.

PN463

Rural fire call taking dispatch for CFA regional areas is performed at the ESTA SECC located at Mount Helen in Ballarat. This matter today relates to the fire dispatchers at Tallyho who, unlike other dispatchers, perform both call taking and dispatch for MFB and CFA. This includes road rescue for MFB and CFA. They also perform road rescue for the SES which is a specific issue for consideration in this dispute as you know.

PN464

I need to point out initially that the submission from the UFU continually refers to SES dispatch. It is important to note that the issue in dispute is not the overall SES dispatch function, it is the road rescue function only which is merely a small component of the SES dispatch function. It's also important to note that as far as SES activity is concerned the fire dispatchers only perform road rescue. There are a number of other SES functions. I should add there too that the definition of road rescue which is a generic definition which was provided by Ms Pike previously is something that we would agree with.

PN465

There are a number of other SES functions greater in number and complexity in our view which comprise a complete SES service. These are performed by the police SES dispatchers at the World Trade Centre. They are described in detail in the witness statement from ESTAs training manager at the World Trade Centre, Peter Phillips. I would add also that the police SES operators do all the radio activity for the road rescue for SES which is dispatched by the fire operators, and the radio is a significant component of that work.

PN466

The issue in dispute arose following a recent software operator for ESTAs computer aided dispatch system where we changed from version 7.7 to 7.9, and the fire dispatchers who previously dispatched SES road rescue to a dummy unit now dispatch SES road rescue to a live unit. The union claims that that change means the fire dispatchers, despite the fact that there are no substantial changes to their functions in our view, are now dispatching to three emergency services in accordance with clause 19.4 of the enterprise agreement, those services being MFB, CFA and now, in the union's view, SES, and therefore justify in their view advancement to dispatcher level 3 in accordance with clause 19.3 of the enterprise agreement. ESTA of course does not share that view.

PN467

Components of the enterprise agreement which are relevant to this claim at clause 18.5, training accreditation, this relates to ESTAs training commitment to its employees in ESTAs role as a registered training organisation. It is a key component of ESTAs case. It reads as follows:

PN468

As a registered training organisation ESTA will accommodate the training and accreditation of all ESTA employees ...(reads).... Australian qualifications framework is a key component of ESTAs RTO arrangements.

PN469

Clause 19.3 is salary criteria, is also relevant. This provides the criteria for the payment of salaries and the movement between classification levels. I don't need to read that. I'll refer to particular parts of that later on. Clause 19.4, emergency services, is also relevant. This specifies the emergency services for the purpose of the classification determination and it specifies Victoria Police, ambulance, ERCOM, NETCOM, State Emergency Service, Metropolitan Fire and Emergency Services Board, which is the MFB, and Country Fire Authority.

PN470

Clause 19, I've got 19(j), it's 19(3)(j) is it not? Yes, it is, 19(3)(j) of the enterprise agreement states clearly that:

PN471

The salary for level 3 dispatchers shall be paid to employees who gain and maintain their accreditation in dispatching for at least three emergency services.

PN472

THE COMMISSIONER: What I'm hearing you say is that if you look at 18.5 it's clear that for the purpose of the agreement the word accreditation means accreditation in certificate levels.

PN473

MR COULTER: Correct. I'll just go on and explain. Accreditation is defined by virtue of clause 18.5 of the enterprise agreement. That clause is clearly related to ESTAs registered training organisation status and associated requirements, which are covered in detail in the witness statement from ESTAs Tallyho training manager, Kerri Bingham. The UFUs claim therefore the enterprise agreement does not define accredited or accreditation or that accreditation is not linked to ESTAs RTO arrangements is clearly not correct. Accreditation clearly means accreditation under ESTAs RTO arrangements. This is fundamental.

PN474

THE COMMISSIONER: Well, that might be the case in very general terms and unassailable as a matter of fact, but our concern is entirely with the intention and meaning of the agreement isn't it?

PN475

MR COULTER: It relates back to the - - -

PN476

THE COMMISSIONER: The agreement is a sort of an overlay on the operations of the business or the service rather, and as I understand your case, where the word accreditation appears in the agreement it should be given the meaning which is expressed in clause 18.5, and that for the purpose of the agreement the only thing that is accredited is something which involves certification of levels II, III and IV.

PN477

MR COULTER: That is correct.

PN478

THE COMMISSIONER: And that it is impossible to elevate accreditation or to spread it any higher or wider respectively than the terms of the agreement.

PN479

MR COULTER: Yes, we are a registered training organisation, we are required, compelled in fact to upgrade the arrangements.

PN480

THE COMMISSIONER: I understand that. I think perhaps the distinction or the difference between us is that I'm looking purely and simply at the words of the agreement and interpreting the words of the agreement in their context, because that's what I am directed to do in terms of how I am supposed to decide this matter. I have to find, if I can, the meaning of the word accreditation for the purposes of the agreement within the agreement, not by reference to the Australian qualifications framework unless it's mentioned in the agreement, not by reference to registered training organisation status unless it is referred to in the agreement necessarily. I mean, you might turn to it if you couldn't find within the agreement the meaning of the word accreditation.

PN481

MR COULTER: Well, it does - talks about accreditation as determined by the Australian qualifications framework, which is the RTO arrangements.

PN482

THE COMMISSIONER: That's right.

PN483

MR COULTER: There's a clear link.

PN484

THE COMMISSIONER: That's perfectly relevant because it's the agreement talking.

PN485

MR COULTER: It's the agreement talking, and the agreement, what I'm trying to say here is the agreement takes us back to the requirements of us under our RTO arrangements, and that's the basis on which this part has been framed. If indeed we were not a registered training organisation clause 18.5 would be totally different.

PN486

THE COMMISSIONER: Well, it might be, but that's not really to the point. The only thing that matters is what it says. And what I understand you to be putting to me is that what it says is very clear, the only type of accreditation contemplated by the agreement on its terms is certificate level accreditation.

PN487

MR COULTER: Yes.

PN488

THE COMMISSIONER: And that training and accreditation are not necessarily one and the same thing.

PN489

MR COULTER: That's correct.

PN490

THE COMMISSIONER: They are two distinct categories and field of knowledge and activity, training being broader than accreditation.

PN491

MR COULTER: Yes, and we'll get to that point also. Just on that issue I note that in point 16 of the union's supplementary submission it's stated:

PN492

This particular clause -

PN493

Which is 18.5:

PN494

- refers to successful completion or accreditation.

PN495

THE COMMISSIONER: So contemplates training completed and, as distinct from that, accreditation to a particular level of the training.

PN496

MR COULTER: It says successful completion or accreditation. The actual word for the document, successful completion and accreditation. So the point I make, which is different to the point made by the union, is that successful completion is only relevant when it is accompanied by accreditation.

PN497

THE COMMISSIONER: Well, (j) is entirely contingent upon accreditation isn't it?

PN498

MR COULTER: It is. If you allow me to go on I'll explain that relationship, Commissioner.

PN499

THE COMMISSIONER: It seems pretty clear that this whole thing is going to turn on the meaning of accreditation. Mr Clarke conceded that.

PN500

MR COULTER: Yes.

PN501

THE COMMISSIONER: Has anybody done a string search on the words accredited and accreditation in the agreement?

PN502

MR CLARKE: Sorry?

PN503

THE COMMISSIONER: Have either of the parties done a string search on the words accredit, accredited and accreditation where the appear in the agreement?

PN504

MR COULTER: No.

PN505

MR CLARKE: As a string search you mean just look to where the word appears? Right. Only with my eyes, not with the computer.

PN506

THE COMMISSIONER: We'll do it at lunch time for your information.

PN507

MR CLARKE: Okay.

PN508

MR COULTER: In fact there is no accreditation of the road rescue component, the function does not qualify for the issue of a certificate under the RTO conditions, there is not even a separate road rescue module in the fire training course or separate training documentation. Via comparison SES components of the VicPol course is supported by separate training manuals. Therefore because there is no accreditation there is no eligibility for the provision of clause 19.3(j) to be applied, which, as we know, is salary for level 3 dispatchers shall be paid to employees who gain and maintain the accreditation in dispatch of emergency services. Also at paragraph 19.3(h) of the enterprise agreement states that:

PN509

Employees will be eligible for advancement to the higher level after completing their three month period of consolidation from the date of which training finished.

PN510

That is signed off as having successfully completed a classroom and on the job training. It should be noted there was no consolidation period required in relation to the road rescue training and there was no formal on the job training with the CAD 7.9. Paragraph 9.4 of the enterprise agreement refers to SES as an emergency services for the purpose of determining classification. The union claim suggests that is sufficient for classification purposes for the fire operators to perform only part of an SES role, that is, road rescue. Now, that qualifies as a service under clause 19.4.

PN511

SES in the enterprise agreement means the full SES service or at least a major part of it and not a small or comparatively minor part of it. There is a significant difference between the SES road rescue activities performed by the fire dispatchers and the full functions performed by the VicPol SES dispatchers which is regarded as a separate service, and this is evidenced by the extent of the training materials and the duration of the training as detailed in the witness statements from ESTAs training managers, Kerri Bingham and Peter Phillips, and which are highlighted in ESTAs submission to the Commission.

PN512

The enterprise agreement does not say or indicate that it relates to part of a service or a small part of a service. It was never envisaged that an employee who would perform a small part of the service as the fire dispatchers do with road rescue for SES would be eligible to be remunerated at the same level as an employee who is performing all the functions of a service as the VicPol dispatchers do with SES. Indeed all staff are trained but not accredited to perform call taking or dispatch activities in services for which they are not accredited in order to cater for such things as redundant situations.

PN513

The functions they would be required to perform temporarily in a redundant situation represent a small component of the total service, and there is no argument nor has there been an argument in relation to ESTA or its predecessors that such training or the performance of those functions where required would qualify for higher classification. Similarly it is noted that the fire dispatchers have always taken calls for road rescue, and that has not changed, however there is no argument nor has there been an argument in relation to ESTA or its predecessors that in such cases where staff would be required to perform a part of that role they would qualify for a higher classification.

PN514

Similarly staff involved in other services, police, fire and ambulance, are trained in and perform the work, either call taker or dispatcher, for all the components of that service, not just a part of them. Those functions are far more comprehensive and complex than even the total SES functions let alone the road rescue component. It would not make sense to take a different and inconsistent approach in relation to SES road rescue.

PN515

The UFU submits that employees may qualify for advancement through the isolated application of paragraph 19.3(j) of the enterprise agreement. This is not the case. Paragraph 19.3(j) as well as (i) (k) and (l) merely serve to explain the relationship between the various salary levels and the number of services. They clearly state that payment is subject to, and in inverted commas, gain and maintain their accreditation. It is not therefore as the UFU suggests a pathway by itself to advancement. It must be read in the context with other relevant provisions of the enterprise agreement.

PN516

The classification structure for call takers and dispatchers was introduced to acknowledge and compensate for an increase in complexity and skill that came with a requirement to dispatch for additional services, full services, not parts of services.

PN517

MR CLARKE: Commissioner, there isn't actually any evidence about the negotiations of the agreement or the objective facts surrounding the negotiation of the agreement, so to assert what was the intention - - -

PN518

THE COMMISSIONER: I think it's a matter for submission in reply isn't it?

PN519

MR CLARKE: Okay, sure.

PN520

THE COMMISSIONER: And it's a submission about the interpretation of the agreement in light of any alleged ambiguity.

PN521

MR COULTER: At paragraph 18.3 of the enterprise agreement states that:

PN522

Employees will be notified in writing of successful completion of training programs and resultant accreditation.

PN523

It clearly does not mean and was never intended to mean that all training will be accredited, that is, as I have previously defined. Refresher training, updates, training in relation to changed procedures, et cetera, including the training required to cater for the introduction of CAD version 7.9 will need to be recorded and may result in a letter confirming that the training has been completed and employee acknowledgement, but that is not accreditation or re-accreditation. It is mere recognition and recording of the maintenance of a competency level and is consistent with our RTO requirements and arrangements.

PN524

So ESTA believes it is very clear that it is not appropriate to interpret the enterprise agreement in a way that would allow a fire operator to have their SES road rescue dispatch functions classified as an additional service, nor has it ever intended that it should be possible. The following is also relevant, Commissioner. The road rescue function does not add any new responsibility and does not represent an increase in work value because road rescue dispatch for the MFB and CFA is a function already being performed by the fire dispatchers. That has always been the situation with ESTA and with its predecessors.

PN525

The function is insignificant when compared to the overall fire call taking and dispatch functions performed by the fire dispatchers. If indeed there is an increase in responsibilities, absolutely clear that the new responsibility is no more, indeed is significantly less than that accepted in normal fire call taking and dispatch functions in our view. This is evidenced by the witness statement from ESTAs customer service managers, Anthony Jones and Kerri Bingham.

PN526

The union has indicated there are new duties associated with road rescue SES dispatch. It is important to bear in mind that fire dispatchers have always dispatched road rescue to live units for MFB and CFA, and their work load, the number of calls there is three times that of the road rescue for SES. Under CAD 7, version 7.7 dispatchers were required to monitor MFB and CFA road rescue dispatchers like SES. They will now be monitoring SES road rescue under 7.9. So the function they're doing now is the same as they've always been doing for MFB and CFA.

PN527

Under CAD 7.7 dispatchers were required to undertake fail to respond activities in relation to MFB and CFA road rescues, but not SES. They will now undertake fail to respond activities in relation to SES. The change that has occurred with CAD 7.9 therefore is effectively to regularise the SES road rescue activities with the corresponding MFB and CFA road rescue activities, which are clearly the majority of the events. The functions are not new, they are already being performed but for a different service.

PN528

It is also of interest to point out that the approximate volume of events for the fire dispatchers at Tallyho annually are as follows. Road rescue events for SES, this is annual and they're approximate, a little over a thousand, which is two per cent of their work volume. Road rescue for MFB and CFA 3000, which is about five per cent of their total work, and three times the SES activity. And fire events, which is 59,000, which is 93 per cent of their total activity. By comparison there are 11,500 SES events handled by the VicPol dispatchers at the World Trade Centre, around 10 times the road rescue events handled by the SES fire dispatchers.

PN529

In summary therefore, Commissioner, in our view there's no justification for an increase in classification based on the application and interpretation of the enterprise agreement. There's no real work value increase with a minor change for road rescue dispatch function for the fire dispatchers. And furthermore, Commissioner, ESTA has a pretty good record of being a good employer and is not averse to the right event if it's beyond the specified provisions of the agreement where there is real merit. In this case however we don't believe there is real merit. Thank you, Commissioner. I now wish to call the ESTA witnesses.

PN530

THE COMMISSIONER: Yes. Ms Bingham?

PN531

MR COULTER: The first will be Mr Phillips.

<PETER ANDREW PHILLIPS, SWORN [11.54AM]
<EXAMINATION-IN-CHIEF BY MR COULTER

PN532

MR COULTER: Mr Phillips, thank you. Can you inform the Commission what your responsibilities are at the World Trade Centre please, your role and responsibilities?---My role at the World Trade Centre with ESTA at present is the training manager for police and SES. Prior to my current role I have been a call taker, a dispatcher and a workplace trainer, which does qualify me for my role that I hold at present. I also hold a Certificate IV in Workplace Training and Assessment which I'm required to hold as well.

PN533

So you have taken calls and dispatched for SES?---That is correct, for police and SES, and I still currently perform those functions at time.

PN534

Your role as training manager has a fair bit to do with ESTAs registered training organisation arrangements. Can you explain how the RTO arrangements impact on what you do training wise?---Well, as ESTA is a registered training organisation the training that we do perform and the way we conduct our business is under the Australian Qualifications and Training Framework. We're also overseen by the Victorian Registration and Qualifications Authority. They oversee what we do and we are subject to audits from that government department.

PN535

So in terms of our training is it fair to say that all our training is dictated by the framework and our RTO status?---That is correct. The call function of training new and existing staff, we train new staff as per our scope of registration in Certificate II emergency communications. Existing staff are also, when they move on to dispatching, are trained in Certificate III, emergency communications, and also we do conduct periodically refresher training and other training as required when changes occur in the workplace. Part of that requirement is we do keep records of all training that we do perform.

PN536

Okay. So what training is formally accredited under our RTO arrangements?
---The training that is formally accredited is the Certificate II and Certificate III of emergency communications. Under those certificates we have eight core units that we deliver and then a stream depending on which centre the employee is working at.

PN537

Is any other training accredited under RTO arrangements?---No.

PN538

Are we allowed to accredit any other training under our RTO arrangements?---No, we're not. We're only allowed to accredit the training that's listed on our scope of registration. If we do - if we did try to accredit any other training we would actually be in non compliance with the AQTF framework.

**** PETER ANDREW PHILLIPS XN MR COULTER
PN539

Each of the road rescue functions and the SES work - how much of the SES dispatch functions include road rescue events? So the SES dispatchers do a lot of things and we - where I should provide you with a copy, which I don't have, of a statement which outlines the event types that are - - -

PN540

THE COMMISSIONER: It's contained in Mr Phillips's statement isn't it?

PN541

MR COULTER: Sorry. Yes, JP4. Can I provide to you a copy of statement JP4 which is provided by Ms Pike.

PN542

THE COMMISSIONER: Mr Phillips deals with this at the third to last page in his statement.

PN543

MR COULTER: I beg your pardon, I'm sorry?

PN544

THE COMMISSIONER: Mr Phillips deals with this in the third to last page of his statement.

PN545

MR COULTER: He does. But I'm just getting to the point of how much of that work is done by the SES operators at the World Trade Centre, and on that list there are I think nine items which are in bold at the top.

PN546

THE COMMISSIONER: Which list? That's the list you've just handed him?

PN547

MR COULTER: That's the list which is exhibit JP4?---From what I can see on this list of the nine or so event types listed, in total the SES dispatch it does action and assist with 19 event types including those nine listed there.

PN548

Okay. So for the nine listed for the fire operators at Tallyho what involvement does the VPC operators have with those events? They used to do the dispatch of those as I understand. What do they now do?---Now what they do is they don't do the initial actioning on CAD or request CAD to determine who should be responding to that event and sending out that notification. What we do currently still do is that once the SES unit is responded we deal with the call back from the SES unit to acknowledge that they've received the page and they're responding. We deal with the radio communications associated with that event. We perform notifications, their supervisors, their duty officers as the like. We liaise as the facilitator of communications between the SES units and other responding agencies, being police, fire or ambulance. And general monitoring of the event and actioning any further resources that the SES may require once on scene.

**** PETER ANDREW PHILLIPS XN MR COULTER
PN549

So it would be incorrect to say that the fire operators at Tallyho have taken the work away from the operators at the World Trade Centre?---That would be correct. The only part that has been removed from the role that we perform or still perform is the initial actioning of CAD to ask CAD to determine who is responding and to send that out, initial notification out.

PN550

Yes. So still a substantial role just in terms of the road rescue component?---Most definitely.

PN551

Yes. And of the total activity of the VicPol operators would you have an idea how much would be road rescue and how much would be the other activity of flood damage, et cetera?---That would call for pure speculation. From experience as an operator and also as the training manager and from still operating in that role I would not think that it would equate to perhaps more than maybe 10 to 15 per cent of the total work load that the SES dispatcher performs. The vast majority of the work load is storm and flood, asset protection, tree down events and the like.

PN552

And from your knowledge both with CAD 7.7 and 7.9 is there any difference in complexity between the road rescue component and the other activities of the SES operators at the World Trade Centre?---There is. Just to elaborate on the other functions that the SES do perform, there's a storm and flood response, there's salvage, there's the road rescue component, there's search and rescue, there's also asset protection, public safety events as well, and also responding to requests from the fire brigade, the ambulance service, the Victoria Police as well as Department of Human Services, and also the occasional request from the Department of Sustainability and Environment.

PN553

And these are all functions done exclusively by the operators at the World Trade Centre?---Most definitely.

PN554

In terms of radio activity for the road rescue events how many of the road rescue events would involve radio activity?---All of them?

PN555

All of them?---It's a requirement that once the SES unit receives the initial notification for a road rescue event that they must liaise with the SES dispatcher at the VPC, and that may very well be via phone initially, but it must - they also must back that up with radio and they must be within radio communications with us at all times. They must under their requirements advise us of all their status changes once they attend the station, once they respond in the truck, once they're booking on scene and any functions they perform at the scene.

**** PETER ANDREW PHILLIPS XN MR COULTER
PN556

In your knowledge is that similar to the radio activity performed by the fire dispatchers at Tallyho in relation to normal fire events?---I couldn't comment on what a fire dispatcher does in the performance of their role as a fire dispatcher at a fire event.

PN557

When staff are required to undertake training that isn't a certificated training course, whether it be for an upgrade such as with the CAD 7.9 upgrade, if I can provide you with this copy. It may well be appropriate to enter this as an exhibit, Commissioner. It's headed CAD 7.9 upgrade and connectivity work flows sign off. Do you provide a statement of that sort to employees who complete training such as the CAD 7.9 upgrade training?---Yes. With the CAD 7.9 training all operators that undertook the training were required to complete such a form, which is recorded on their training file held at the centre as per our requirements under the AQTF, which is also audited. Any training that someone does undertake, you know, if it's a formal off the floor training they complete such a record or we may use a training feedback report which is recorded as well.

PN558

THE COMMISSIONER: Well, that can be exhibited. I think before doing that we'll exhibit the witness statement unless there's any objection.

EXHIBIT #R1 STATEMENT OF PETER PHILLIPS
EXHIBIT #R2 CAD 7.9 UPGRADE AND CONNECTIVITY WORK FLOWS SIGN OFF

PN559

MR COULTER: On that form, Mr Phillips, that doesn't represent accreditation does it?---No. It fully serves as an official record, an ESTA document which details the operator who undertook the training, the trainer who facilitated the training and the coordinator, in my case a manager, to acknowledge that that training has been conducted, that it's recorded as per our AQTF requirements and put on their file.

PN560

THE COMMISSIONER: Well, it may be accreditation in general language, but the question here is whether it's accreditation within the meaning of the agreement isn't it?

PN561

MR COULTER: Yes. I'll just add to that, the word accreditation does not appear on that form does it?---Not at all. It's a record.

PN562

THE COMMISSIONER: It may be an accreditation of the fact that that training has been undertaken, but whether or not that constitutes accreditation within the meaning of the words of the agreement is another question.

**** PETER ANDREW PHILLIPS XN MR COULTER
PN563

MR COULTER: Little a, it's distinct from a big A perhaps.

PN564

THE COMMISSIONER: Perhaps. I'm not quite sure whether the agreement uses a capital or not, which actually could, without being too pedantic about it, be significant.

PN565

MR COULTER: They're all the questions I have of you thank you, Mr Phillips. Thank you, Commissioner.

PN566

THE COMMISSIONER: Very well. Mr Clarke?

<CROSS-EXAMINATION BY MR CLARKE [12.07PM]

PN567

MR CLARKE: Now, Mr Phillips, you say in your statement that you hold yourself a Certificate II and a Certificate III?---That is correct, yes.

PN568

And you continue to perform the duties of a call taker and a dispatcher on occasions to, and you say to maintain your proficiency?---That is correct.

PN569

You don't occasionally perform those functions because ESTA as an RTO is entitled to cancel your qualifications do you?---No.

PN570

It's more a case of maintaining a skill that you've been trained for?---Can you clarify if you're asking me as my role as a training manager, if that's why I'm performing it?

PN571

No. I'm asking you whether you occasionally perform the duties of a call taker and a dispatcher to maintain a skill that you've been trained for?---Yes.

PN572

As distinct from doing it because ESTA will tear up your Certificate II and Certificate III if you don't?---That is correct, that's to remain proficient.

PN573

Now, you say in paragraph 5 of your statement that ESTAs conduct and activities in the qualifications it produces are regulated by the VRQA, if I can refer to it in the shorthand, but not all training that ESTA does is regulated by the VRQA is it?---The way that we conduct any training that we do do and the way that we record such training, whichever level it is or to whatever detail, any functions that we do perform as a registered training organisation are under their guidance and regulation. Any function that we do perform is audited by that government department.

**** PETER ANDREW PHILLIPS XXN MR CLARKE
PN574

Is it audited as to - exclude Certificate II and Certificate III for a moment, just talk about the training. Is it audited in relation to the process, the way in which it's conducted or its content, for instance, sexual harassment training, is it audited in relation to its content or the process of, as you say, recording that the person has been trained?---From their point of view they're interested in the way that the training is facilitated, the records that we do keep, not necessarily the content.

PN575

THE COMMISSIONER: So if all your content was considered by the authority to be wrongly founded they wouldn't be concerned?---They would be - - -

PN576

So for instance, if I can just elaborate a little further, if in the case of the sexual harassment training, the training that you were providing to employees with inconsistent with the decisions of the courts in relation to what constituted sexual harassment, the training authority wouldn't be concerned?---I am aware that when an audit is conducted that if they do become aware of the extent of our training perhaps being lacking to what they understand it should be, that they do make observations within the audit process.

PN577

And does that constitute some remedial requirement on their part for the continuation of your status as a registered organisation providing training?
---During the audit the main two classifications, there's an observations with room for improvement or there is a clear non compliance. I couldn't comment on which way they would decide but whatever the comments that they do make, then we take those comments on board and make changes as necessary.

PN578

MR CLARKE: Now, ESTA is accredited in the general sense to deliver - or, sorry, in the specific sense as an RTO by the VRQA?

PN579

THE COMMISSIONER: It's authorised isn't it?

PN580

MR CLARKE: Yes, to deliver two courses. It's a Certificate II - - -

PN581

THE COMMISSIONER: It's authorised to accredit isn't it?

PN582

MR CLARKE: It's authorised to - - -

PN583

THE COMMISSIONER: To award the certificates.

PN584

MR CLARKE: To, yes, to award certificates to - - -

**** PETER ANDREW PHILLIPS XXN MR CLARKE
PN585

THE COMMISSIONER: And they are certificates of accreditation are they not? And they are certificates of accreditation are they not?

PN586

MR CLARKE: Well, they're qualifications.

PN587

THE COMMISSIONER: All right. It just occurs to me that what we're getting into here is some, indirectly perhaps, or directly - - -

PN588

MR CLARKE: I'm not going to ask the witness what accredited means if that's the - - -

PN589

THE COMMISSIONER: No, I'm not concerned about that. I wouldn't in the circumstances actually find that exceptional because there may be some other facts within the records of the training area of the service's operation which relate to accreditation within the meaning of its operation. I mean, in the context it's the sort of question that I think would be permissible of someone who is managing training as to what is issued in the form of accreditation. No, it's referring to something else, in particular the words in between the commas which immediately precede "during the life of this agreement" in 18.5.

PN590

You see, if you read the clause it's clearly irresistibly inferred that an accreditation for the purposes of that clause of the agreement is something as determined by the Australian Qualifications Framework.

PN591

MR CLARKE: Yes.

PN592

THE COMMISSIONER: And, I mean, if you don't go there I intend to shortly, and that is how does the Australian Qualifications Framework express itself in relation to accreditation?

PN593

MR CLARKE: Do you want me to - - -

PN594

THE COMMISSIONER: No. I'm just putting you on notice that, you know, you can handle it the way you want to. It just seems to me that it's inescapable for the purpose of these proceedings to determine what the meaning of those words are, or is rather.

PN595

MR CLARKE: It's within ESTAs scope of registration to deliver two courses at Certificate II and Certificate - one course at Certificate II level and one course at Certificate III level, is that correct?---That is correct.

**** PETER ANDREW PHILLIPS XXN MR CLARKE
PN596

And I think you said in response to Mr Coulter's questions that the courses that result in the granting of those certificates comprise core competency units and stream competency units?---Correct.

PN597

Now, you've named the stream competency units in relation to SES at paragraph 9 of your statement, and in relation to dispatch does it facilitate event response?
---That is correct. VBPE 999 facilitate event response, metropolitan Victoria Police, State Emergency Service.

PN598

Yes, okay. So that would include, completing that stream competency unit would include the use of the CAD system?---Yes.

PN599

And the paging system?---Yes.

PN600

And radio communications just to name a few things?---Yes.

PN601

Relative to the State Emergency Services?---Correct.

PN602

And completion of the stream competency unit alone doesn't result in a Certificate II or Certificate III does it?---On its - in its isolation, no. It needs to be - well, let me clarify. To partake in the Certificate III course which consists of that unit a prerequisite is that you must have successfully achieved Certificate II level and be in the stream that you have chosen - the Certificate III that you are undertaking it's a requirement that you have completed the Certificate II, your eight core competencies, as well as the stream for the same agency that you're doing your Certificate III training in. So if you want a Certificate III in police and SES you must have completed Certificate II police SES, that's a prerequisite.

PN603

Okay. So it's a progression of your qualification?---Yes.

PN604

But the competency unit in itself, if one were to just do for instance the Certificate II stream competency unit relative to SES, would not result in the granting of a Certificate II if all that was done was the stream competency level?---No.

PN605

So when you say in paragraph 9 that SES is not a separately accredited course, that's also true of ambulance or fire isn't it?---The intention of that statement is that SES alone is not a unit separately offered, it doesn't have its own separate unit code, whereas ambulance service does.

**** PETER ANDREW PHILLIPS XXN MR CLARKE
PN606

Ambulance unit has a - - -?---Metropolitan Ambulance Service does have its own unit code, being VBPU 998.

PN607

Okay. So you're talking about here about the sharing between Victoria Police/State Emergency Service, you're drawing a distinction between, in the ambulance case it's not shared with police?---Correct.

PN608

Or other services, it's just - okay?---It's a requirement that the police, an operator performing the dispatch role is required to do police and SES.

PN609

Okay. But nonetheless the SES in itself is not a separately accredited course?
---Correct.

PN610

And there's specialised units of study within an accredited course, there are layers if you like?---Yes.

PN611

Do you dispute that after completing CAD 7.9 training fire dispatchers at Tallyho were assessed in relation to that training?---They would have been, yes.

PN612

And you don't disagree that the assessment involved some assessment of SES dispatching functions?---Part of the function of SES, yes.

PN613

In paragraph 9 of your statement you refer to SES dispatchers at the World Trade Centre being trained for the complete range of SES events, and you use the expression not merely road rescue events?---Yes.

PN614

Can I just provide the witness, unless he's still got it, a copy of exhibit JP4?---Yes, I do.

PN615

If you look at the events - sorry, the lines of the document that are highlighted in bold text, do those together comprise what is referred to as road rescue?---Yes, it does.

PN616

That's in spite of the fact that, for instance, at first blush, if one were asked whether an aircraft accident with road rescue, is it correct to say it's a term used within the industry to call this group of things road rescue although they may not necessarily involve rescue of someone on the road?---That is correct, but also I wouldn't like to make the distinction that the SES do also respond to - the last event type listed here, other rescue persons trapped, I don't recognise that. That's not a term on our CAD system, so I'm not sure exactly which one that's referring to. I do, however, note that there is a rescue response that SES do respond to. That is more of a trapped, threatened search and rescue type event that they do respond to, so I'm not sure if that is - that wording is not correct.

**** PETER ANDREW PHILLIPS XXN MR CLARKE
PN617

But the remaining ones covered in bold, although they might not be immediately obvious to somebody standing outside as being a road rescue event, you nonetheless refer to them as road rescue?---Yes, we would and SES do respond to one other type of rescue event, that rescue, trapped, threatened which isn't a road rescue response. However, it is deemed as rescue.

PN618

It's correct, isn't it, that fire dispatchers at Tallyho have been trained to and do dispatch to three emergency services?---To use the understanding of an agency is where someone is trained in that totality of what that function requires, then I would have to say no. If someone is to perhaps cross-train to work at the World Trade Centre and be trained as a police SES dispatcher, then they're trained in all facets of the course and the way they function and they have been then recognised as three agencies. It's never been the case that performing part of the role or being trained in a certain component would be regarded as a third agency or an extra agency.

PN619

The fire dispatchers at Tallyho do dispatch some SES resources, do they not?---I would describe it as they perform functions on CAD for CAD to determine what agencies are required to respond to an incident, so they perform functions on CAD to determine an event response and put the steps in motion for that unit to respond or to be initially notified of that event.

PN620

So that's the essence of dispatch, isn't it?---It's the initial step of dispatch.

PN621

It's your position, isn't it, that the fire dispatchers don't do all of what could be described as SES dispatch? That's right, isn't it?---That's correct.

PN622

They do some of that, but not all of it?---They do a component of, yes.

PN623

They do a component of it, but not all of it?

PN624

THE COMMISSIONER: But only in relation to some events, isn't that right?
---That is correct.

PN625

The correct picture is if you assume that whatever the shape of the representation, whether it be a square or a circle or whatever, of the SES rescue function or the SES function shall we say, that the employees at Tallyho perform part of a part of the totality?---That is correct.

**** PETER ANDREW PHILLIPS XXN MR CLARKE
PN626

MR CLARKE: And since the fire dispatchers at Tallyho have taken on that component, that's a component that the VPC operators no longer do?---Under standard ideal operation, that is correct. As soon as there are issues with telephony, issues with the CAD system, we do continue to perform that role, so as soon as there is an issue with the paging system or an issue with the CAD system and its operation, we take all those operations back and perform that initial notification and facilitation of that event. Whilst the CAD system is in operation, that allows - the CAD system is determining the unit response and which agency should go, dependent on the road network, so whilst that's operating then, yes, they do do the initial steps to determine that.

PN627

And the normal state of ESTAs operations is that the CAD system is operating, isn't it?---Yes.

PN628

So what you're referring to, when the CAD system isn't operating, is a redundancy system or a contingency plan for what happens if the system fails, is that correct?
---That is correct, but I believe your question was does the fire operator perform that function. They do do, but it still needs to be recognised that, yes, the SES dispatcher does perform that function at times.

PN629

Yes, I understand. Thank you. And in Ballarat, there are SES dispatchers at Ballarat, too, aren't there?---I don't have a great visibility of the operations at Ballarat and as I'm not operating at the Ballarat centre and responsible for their training, I couldn't comment.

PN630

So if I were to - you wouldn't be in a position to dispute an assertion that SES dispatchers at Ballarat don't do any radio work. You couldn't say whether that was right or wrong?---I am aware that - I'm generally aware that the radio component - that the SES units don't respond via radio due to geographical reasons, that, for instance, if a road rescue event was to occur perhaps in Horsham, then radio communications wouldn't reach Ballarat, so that would perhaps be true.

PN631

When did you become first aware of the dispute that's in the Commission now?
---Perhaps last year, but I can't be - towards the end of last year.

PN632

In your role and at that time last year, were you in a position to delay the implementation of the CAD 7.9 system?---Solely the decision-maker, no.

**** PETER ANDREW PHILLIPS XXN MR CLARKE
PN633

No further questions.

PN634

THE COMMISSIONER: Any re-examination, Mr Coulter?

PN635

MR COULTER: Yes, just one issue, Commissioner.

<RE-EXAMINATION BY MR COULTER [12.29PM]

PN636

MR COULTER: You indicate in relation to the VicPol operators that they still did dispatch activities from time to time?---Yes.

PN637

And Mr Clarke referred to redundant situations. The CAD system has been down a bit in recent times. We've had a fair bit of bad press about it, so we know exactly what's happened there, but does that still mean that those operators had to be fully trained in all activities of road rescue irrespective that they may well have theoretically lost for a time some functions that they were doing on the 7.7, so they're still full operators as though 7.7 was still as it is?---Yes.

PN638

Fully trained? So their training hasn't changed, nothing has changed for them except they don't do that function quite as often?---The core unit that an operator is trained in has not changed at all. It's still the full function of an SES operator. In conjunction, or perhaps one change or an inclusion or addition to the training as a result of CAD 7.9 was the awareness that these perhaps changes in the initial notification would occur, but the full function and the performance of that role they understand and they're trained in.

PN639

That is all. Thank you.

PN640

THE COMMISSIONER: Thank you for your evidence, Mr Phillips. You're released from your oath. You're free to come and go as you please.

<THE WITNESS WITHDREW [12.30PM]

PN641

MR COULTER: I call Ms Bingham as a witness, please.

PN642

THE COMMISSIONER: Just while Ms Bingham is on her way in, I might just mention I intend to have a little bit of an investigation at least through the net of the Australian qualifications framework. I will provide the parties with an opportunity to put material and address me on the subject if necessary. I just put you on notice of that. My intention is to try and establish whether or not the word accreditation has a meaning within the context of that framework.

<KERRI BINGHAM, SWORN [12.32PM]
<EXAMINATION-IN-CHIEF BY MR COULTER

PN643

THE COMMISSIONER: Thank you, Ms Bingham. Yes, Mr Coulter.

PN644

MR COULTER: Ms Bingham, you have a copy of your witness statement?---I do.

PN645

Do you agree that's a true copy?---I do.

PN646

I tender that as an exhibit, Commissioner.

PN647

THE COMMISSIONER: You testify to that?---I do, yes.

EXHIBIT #R3 WITNESS STATEMENT OF KERRI BINGHAM

PN648

MR COULTER: Ms Bingham, would you tell the Commission what your role and responsibilities are within ESTA, please?---Yes. I am the training manager at the Tallyho site of ESTA which incorporates the Metropolitan Ambulance Service and Fire Services Victoria which is the Country Fire Authority metropolitan fire brigade.

PN649

That involves what precisely?---In my role I'm responsible for the development of training material, ensuring that new updates and the curriculum are updated, the maintenance of the registered training organisation status, the maintenance and accreditation of courses, development of training strategies and solutions to meet the needs of the environment and the production of the qualifications as per our courses.

PN650

ESTA is a registered training organisation. I understand that you've had a significant role in achieving that status for ESTA. Can you explain to the Commission what your role has been?---That's correct. To obtain registration as a training organisation, one needs to put forward a proposal to the Victorian Registration Qualifications Authority of which I was a partnership in authoring that document. The submission is then reviewed. After researching the requirement to be a training organisation, you also need to have an intention to accredit what courses you will be delivering as part of your scope of registration. An independent auditor then will come in and ensure that you are meeting the standards as per the Australian quality training framework. They will then either confirm or refuse that registration. Ours was confirmed and has been for some time. That registration lasts for a period of five years. During that time, those associated with training which is myself and my training manager colleagues are responsible for ensuring that those standards are upheld at all times and maintaining that accreditation through constant quality assurance and review. We do internal audits, plus we're also needing to do external audits from an independent auditor will come in. We produce qualifications associated with the courses as per our accreditation as well.

**** KERRI BINGHAM XN MR COULTER
PN651

Thank you. In terms of ESTAs training and operation, what does it mean to be a registered trainer for that organisation? How does that dictate what the organisation does, can do, can't do, et cetera?---To be a registered training organisation, it means that you are nationally recognised and accredited, so the qualifications that you produce can be transferred to and recognised by other registered training organisations Australia-wide. It means that you come under a quality assurance guide which is the Australian quality training framework. That is a set of standards that you must adhere to. To adhere to those standards, any curriculum or documentation that you produce, any record keeping, any qualifications as such always must meet the needs of those standards.

PN652

What certificate can we issue in relation to Tallyho?---As per the scope of registration, it's Certificate II and III in call centre operations. Specifically at Tallyho, that means that the enterprise specific competencies which is the process agency calls for Metropolitan Fire and the facilitative response for Metropolitan Fire and the same with ambulance, so they're the two that we deliver.

PN653

To focus on the word accreditation, what does the word accreditation mean in the context of the framework and our status? Is that a formalised thing?
---Accreditation is a formal process. It's an extensive, complex process. The term to be accredited means that you have gone through a formalised submission through the Victorian Registration - - -

PN654

THE COMMISSIONER: That's the accreditation of ESTA as a training paragraph, isn't it?---As a registered training organisation and the course accreditation.

PN655

I think what Mr Coulter might be asking you about is something different.

PN656

MR COULTER: Accreditation of courses as distinct from the organisation, both important?---Correct.

PN657

THE COMMISSIONER: I understand what you say about how as a registered training organisation, accreditation for that purpose is achieved and what is necessary to maintain it. What is of interest in this matter is accreditation of employees?---To be accredited as an employee means that you have undertaken the required training course and have been produced with a relevant qualification, for example you have undertaken the training component of the fire course, for example, being seven weeks off shift and on shift training component, you've undertaken the associated assessments and met the competency standards to then achieve that qualification.

**** KERRI BINGHAM XN MR COULTER
PN658

And what is that qualification?---That qualification would be Certificate II in emergency communications and then Certificate III when you do the dispatch component.

PN659

MR COULTER: The point here is accreditation is a formal requirement of the framework. It's not something that we've dreamed up ourselves?---Correct. It's formally recognised.

PN660

THE COMMISSIONER: Are you familiar with the way in which the Australia qualifications framework deals with accreditation of persons who are issued with certificates?---You have certain standards relating to the production of certificates, hence there are certain standards you need to meet in order to produce that certificate. For example, as per what is accredited under your scope of registration, it clearly states what units of competency that you are allowed to deliver and hence produce a qualification for.

PN661

So in the framework there is a clear expression of the relationship between training and the qualification?---Correct.

PN662

Do you know, you may not know, this might be an unrealistic question, whether or not the terms of expression in the framework refer to the issuance of the qualification such as Certificate II or III as accreditation?---Correct. In the Australian quality training framework standards there is an actual glossary that defines what accreditation is and that is the recognition of a training and assessment course with the production of the qualifications associated with that.

PN663

Would I be right in my understanding of your evidence that you say that if you investigated the documentation and the framework, what you would find is a glossary that said that accreditation involves the issuance of identified certificates?---Correct, in relation to, yes, having an accredited course.

PN664

Within the framework?---Yes.

PN665

Thank you.

PN666

MR COULTER: Thank you, Commissioner.

PN667

You issue certificates for fire and for ambulance, for METCOM and for ERCOM?---Correct.

**** KERRI BINGHAM XN MR COULTER
PN668

You don't issue certificates for SES?---I don't, no.

PN669

At Tallyho, we don't?---No.

PN670

We don't issue therefore for road rescue?---There's no recognition of road rescue as being a separate agency. It's a component of a service.

PN671

If we were to issue a certificate or accreditation, whatever you like to call it, for road rescue, what would happen in relation to RTO status?---If we were to produce a qualification that we're not authorised to under our scope of registration, we would either receive a non-compliance from - - -

PN672

THE COMMISSIONER: There is no such thing as far as the framework is concerned? Is that the correct answer?---Basically, and they also say that because we get audited, we would be in breach of that which would then put at jeopardy we would be suspended.

PN673

You were purported to issue an accreditation that didn't exist as far as they were concerned?---Correct.

PN674

Mr Coulter, ESTA must have all this framework documentation in its possession.

PN675

MR COULTER: We have, yes.

PN676

THE COMMISSIONER: It must have the glossary that Ms Bingham is referring to.

PN677

MR COULTER: I think the answer to that is yes.

PN678

THE COMMISSIONER: I think the familiarity of your witnesses with these facts would indicate that these materials are at hand and are as a matter of practical necessity - - -

PN679

MR COULTER: I would just point out that Ms Bingham is our expert in relation to RTO and associated arrangements.

PN680

THE COMMISSIONER: Exactly.

PN681

MR COULTER: We're provided with all the information we need from - - -

**** KERRI BINGHAM XN MR COULTER
PN682

THE COMMISSIONER: What I am suggesting to you is that I require production of the relevant materials associated with the framework.

PN683

MR COULTER: We're able to do that.

PN684

THE COMMISSIONER: It seem to me that it's going to inform, it has to by virtue of the fact that clause 18.5 includes the words -

PN685

as determined by the Australian qualifications framework.

PN686

The words as determined are rather significant in this context, so in other words accreditation within the meaning of 18.5 on the surface would seem to me accreditation as determined by the Australian qualifications framework, so if the Australian qualifications framework refers to accreditation and defines by whatever means what the framework determines to be accreditation, then that would seem to be the meaning that has to be attributed to the words in the agreement, so the documentation of the framework is important because it may evidence that determination.

PN687

MR COULTER: Yes, I agree.

PN688

THE COMMISSIONER: I don't require you to do it now, but if you wish to do it while Ms Bingham is giving evidence, that may be convenient both to your case and to Mr Clarke's for the purpose of his cross-examination of Ms Bingham.

PN689

MR COULTER: I might just need a moment to - this document is - - -

PN690

THE COMMISSIONER: It might be convenient to take the luncheon adjournment now. We're obviously not going to finish before one, so we will resume at 2 o'clock.

<LUNCHEON ADJOURNMENT [12.44PM]
<RESUMED [2.08PM]

PN691

THE COMMISSIONER: Thank you. Mr Coulter.

PN692

MR COULTER: Thank you, Commissioner. In the break we have obtained a copy of the document titled TF2007 users' guide to the essential standards for registration. It's basically the bible in terms of what accreditation means and what I will do is through Ms Bingham get some of the relevant components of that explained.

**** KERRI BINGHAM XN MR COULTER
PN693

Ms Bingham, you have a copy of that document I just referred to?---I do.

PN694

If I could tender it as an exhibit, Commissioner. We have a number of copies.

PN695

THE COMMISSIONER: Is there any objection to that?

PN696

MR CLARKE: No objection, Commissioner.

PN697

MR COULTER: I have provided a copy to Mr Clarke.

EXHIBIT #R4 USERS' GUIDE TO ESSENTIAL STANDARDS FOR REGISTRATION

PN698

MR COULTER: Ms Bingham, could I refer you to page 42 of the document, point 6 or part 6 which is headed certification, issuing of qualifications and statements of attainment. I just wonder if you could read that, please?---

PN699

The RTO must issue to people it has assessed as competent in accordance with the requirements of the training package or accredited course a qualification or statement of attainment as appropriate that meets the Australian qualifications framework requirements, identifies the RTO by its national provider number from the national training information service, includes the national recognised training logo in accordance with the current conditions of use. The RTO must retain learners' records of attainment of units of competence and qualifications for a period of 30 years.

PN700

Thank you. Can I now take you to section 7, page 44 and in this section there are a range of definitions which are relevant matters referred to in that part 6 that was just read. If you could go to page 44, there is a definition of accredited course. Could you read that definition, please?---

PN701

Accredited course, a structured sequence of vocational education and training that has been accredited by a state or territory course accrediting body and leads to an Australian qualifications framework qualification or statement of attainment.

PN702

That refers to a couple of things, qualification and statement of attainment. The definition of qualification is on page 49, the third part. Could you read that definition, please?---

**** KERRI BINGHAM XN MR COULTER
PN703

Qualification, formal certification in the VET sector by an RTO that a person has satisfied all requirements of the units of competency or modules that comprise an AQF qualification as specified by a nationally endorsed training package or an accredited course that provides training for that qualification.

PN704

Can you just also confirm and I think we've mentioned before, but we issue qualifications which are Certificates II and III?---Correct.

PN705

And what is the definition of those certificates?---Certificate II and III in emergency communications.

PN706

THE COMMISSIONER: And they are AQF qualifications, are they?---Correct.

PN707

MR COULTER: It refers there to statement of attainment and training package. The definition of statement of attainment is on page 50. Actually, maybe it will be easier to go to the training package first. Training package is the second last item on page 50. Could you read that definition, please?---

PN708

Training package, a nationally endorsed integrated set of competency standards, assessment guidelines and AQF qualifications for a specific industry sector or enterprise.

PN709

Does ESTA have training packages and can you explain what they are?---The qualifications that ESTA offers, Certificate II and III in emergency communications, is a combination of three training packages, public safety, hospitality and business services which is then combined with our specific enterprise units of competency for our own environment.

PN710

THE COMMISSIONER: And is the process that you submit that to the Victorian - - -?---The Victorian Registration Qualifications Authority is our registered body.

PN711

So you submit that to them for recognition as a Certificate II or III, do you?
---They allow us and endorse us to produce that as our qualification, correct.

PN712

But for them to do so, they must have something proposed to them?---Correct. We need to submit to them an intention to accredit which is the lengthy, complex process where we have to have researched our industry to see if there is a training package that meets our standards.

**** KERRI BINGHAM XN MR COULTER
PN713

So that's your intention to accredit your employees?---Intention to accredit the course and the qualifications that we offer, that qualify our employees.

PN714

And hence to accredit your employees as completing that correct?---Yes, correct.

PN715

So you go to the Victorian body, you make a proposal, you show them what you propose to deliver and how?---Correct.

PN716

And you tell them that you propose to issue on completion a Certificate II or III, is that right?---Correct.

PN717

They endorse that, they give you formal endorsement of that, do they?---That's correct.

PN718

MR COULTER: Just to follow on from that, how do they provide that formal endorsement for us?---The formal endorsement is an independent quality auditor and an accreditation panel that we need to sit in front of and provide evidence of the submission.

PN719

THE COMMISSIONER: Is there a documentation of the outcome of that process in relation to your Certificate II and III courses?---Yes, we have an accreditation to submission paperwork.

PN720

You receive something from the Victorian authority?---We receive a letter acknowledging that we are an RTO with the approved accredited courses and we have submitted that to them.

PN721

They identify the courses?---Yes, they do.

PN722

Would it be possible to obtain those letters of accreditation?

PN723

MR COULTER: Yes, it is. We've just recently been reaccredited.

PN724

THE COMMISSIONER: I beg your pardon?

PN725

MR COULTER: We've recently been reaccredited, so that's easy to do. I can't do it right now, unfortunately.

PN726

THE COMMISSIONER: No, but in due course?

**** KERRI BINGHAM XN MR COULTER
PN727

MR COULTER: Yes.

PN728

THE COMMISSIONER: There is one thing I am not entirely clear on. Ms Pike has exhibited two certificates, level 2 and level 3, call centre operations, public safety?---They were our - - -

PN729

She received those from Intergraph?---Correct. You have an accreditation for a period of five years. Certificate II and III in call centre operations, public safety, was our prior qualifications under our scope of registration which came up for expiration so we had to apply for reaccreditation. As they were courses, the move was towards training packages. As I mentioned earlier, you needed to research to see if there was any existing training packages that would meet your needs. A selection of eight units of competency were found amongst the three training packages I mentioned earlier, the public safety, hospitality and business services. There were no existing units of competency to meet the needs of the emergency communications environment. As the course had expired which was the call centre operations, public safety, we needed to reapply to develop our own units of competency, hence getting reaccreditation for the new course, Certificate II and III in emergency communications.

PN730

When did that happen?---That was mid-2005/2006 that went through to. I believe we have accreditation until 2011, so it would have been 2006 we received authorisation. Our intention to accredit in the submission and in our subsequent training policies and procedures, allowances were made to recognise those current certificates in call centre operations.

PN731

The reason I ask this question is because there are a number of emergency services and the agreement refers to one, two or three services for the purpose of the classification of employees. Are you familiar with that?---I am.

PN732

I am not quite sure how that connects with if we assume that accreditation means getting Certificate II, III or something else. Are you familiar with that?---My interpretation of that section regarding accreditation is directly the reference to the training accreditation as I know it to be, which is our scope of registration.

PN733

I hear what you say about that. It doesn't actually address my lack of understanding or information about this. There are a list of emergency services, there are various emergency services and some people are trained in some and some people are trained in others, isn't that right?---Correct.

**** KERRI BINGHAM XN MR COULTER
PN734

Ms Pike is trained in the Metropolitan Fire Brigade Service and the Country Fire Service, is that right?---Correct, in the metropolitan fire service unit.

PN735

If another employee, for instance, was trained in metro fire service, for instance, would they achieve a Certificate II or III?---For the fire services, the operators at Tallyho specifically, they are different to any other call taker in dispatch in the other disciplines in the regard that they need to do call taker and dispatch, hence they need to do Certificate II and III in the emergency communications, so they commence with a Certificate II, have a consolidation period and then move straight into the Certificate III. They need to be successful in both.

PN736

So they achieve both of these certificates in relation to one service?---Correct. The Certificate II is in reference to the call taking component in regards to the fire service operations at Tallyho. The Certificate III is in regards to their radio operation dispatch functions as a fire operator.

PN737

So that whether you're trained in one or two services is not necessarily the determination of whether or not you will receive Certificates II and III?---You could be what we term as a multi-skilled operator.

PN738

I beg your pardon?---A multi-skilled operator, so you could have a fire operator that has Certificate II and III in emergency communications. As per their qualification, the specific enterprise unit of competency on there would state Metropolitan Fire Services. That person could then move over to the Victorian Police centre and also undertake Certificate II in emergency communications, but the unit of competency noted on that qualification would be in reference to the Victorian Police.

PN739

The reason I ask these questions is because there seems to be a little bit of a gap, if you like, between the integration of the issuance of the certificates and the concept of being proficient across more than one service. You don't have to be proficient across more than one service to hold a Certificate III, do you?---I'm not sure I follow you, sorry.

PN740

You said that people at Tallyho, for instance, they just do fire service activities, but they hold Certificate III?---Correct.

PN741

So there doesn't seem to be a relationship between being trained in more than one service and the level of accreditation under the framework?---In that regard, there are always Certificates II and III, correct. The distinction is always what specialist module that they are actually being trained in which makes the distinction between the services.

**** KERRI BINGHAM XN MR COULTER
PN742

Yes, I appreciate that. I guess what I am saying is now self evident and I am really giving you the opportunity to contribute any information you think is relevant. If we take accreditation to mean being awarded a Certificate II or III, both, then that doesn't seem to bear any relationship to the number of services that you are trained in?---It's a record of the number of services you are trained in because it has the distinction on the qualification.

PN743

Yes, but to actually receive the certificate to be accredited doesn't rest on being trained in more than one service?---I'm trying to work it - - -

PN744

MR COULTER: The certificates that they receive do specify on the certificate itself what the units of competency are, so a person can have a number of certificates in different units of competencies. They might have two or three Certificate IIIs.

PN745

THE COMMISSIONER: They might, but they don't need to in order to achieve Certificate II or III?

PN746

MR COULTER: That is correct.

PN747

THE COMMISSIONER: So to become accredited within the framework does not require multiple service qualification?

PN748

MR COULTER: No. That's right.

PN749

THE COMMISSIONER: It may be the case as a matter of fact that that occurs and people are awarded certificates in different services.

PN750

MR COULTER: Yes.

PN751

THE COMMISSIONER: But it is not a prerequisite to achieving the certificates.

PN752

MR COULTER: No.

PN753

THE COMMISSIONER: Do you accept that?---I think I understand where you're coming from. You can only ever get Certificate II or III because that's all that we ever offer and, yes, you only have to ever be trained in one service. You don't have to become accredited in other agencies. If you don't, that will not affect your classification. If you do elect to work in other agencies, yes, you will again get another Certificate II or III with the distinction of the competency and that will then potentially impact on your classification.

**** KERRI BINGHAM XN MR COULTER
PN754

MR COULTER: You can't work in another service without having the appropriate certificate for that service.

PN755

THE COMMISSIONER: Is that correct?---Correct.

PN756

So let's put it this way or perhaps we could inquire into it in another way. How is it that Ms Pike and dispatch SES rescue - - -?---Road rescue is a component of the fire training module.

PN757

I see. What you said is not strictly true, is it?

PN758

MR COULTER: It depends on the definition. Our definition of service, yes, it's true, the service is the complete SES service. The union's definition - - -

PN759

THE COMMISSIONER: According to your definition, how you define it, but the fact of the matter is that work in the SES service, a part of a part which has already been agreed is true is performed without Certificate II or III in that service.

PN760

MR COULTER: A specific certificate for that service, yes?---If I may say from the AQTF perspective that governs us, there is no provision to get recognition for a partial completion of a unit, so you can complete a unit and get recognition for that and get a statement of attainment, but to partially complete one unit, hence one chapter out of an entire unit, there is no allowances to get recognition.

PN761

THE COMMISSIONER: Understood, so is there such a thing as a Certificate II or III in SES rescue?---No, no, there's not.

PN762

Well, insofar as the SES is concerned - - -?---As far as the SES is concerned, there are specialist modules that SES is combined with the Victorian Police service. Victorian Police and SES is in the one unit.

PN763

I see, so Victorian Police and SES completion as a combined course of training leads to Certificate II or III?---Correct.

PN764

Understood. I think that actually unwraps the gap. Go ahead, Mr Coulter.

PN765

MR COULTER: I will just lead on this to say we may well have answered some of these things, but I will just progress nevertheless. The certificate of attainment is defined in this document also and that being on page 50. Would you read out the definition of certificate of attainment, please?---Statement of attainment.

**** KERRI BINGHAM XN MR COULTER
PN766

Sorry. I beg your pardon, statement of attainment?---

PN767

Formal certification in the VET sector by an RTO that a person has achieved part of an AQF qualification or one or more units of competency from a nationally endorsed training package or all the units of competency or modules comprising an accredited short course, meaning an accredited course that does not meet requirements for a full AQF qualification.

PN768

There are a couple of bits in there which need to have some further explanation. Can you explain to the Commission why road rescue doesn't therefore - sorry, SES road rescue doesn't therefore qualify for a statement of attainment under part A of that which is part of an AQF qualification, that does not qualify?---To qualify for a statement of attainment, you needed to have completed part of the AQF qualifications. As stipulated, the qualification in this regard is the modules pertaining to Victorian Police and SES, hence as I stated before doing one component of that unit has not had any allowances made for that to be given any qualification or recognition.

PN769

I understand. Similarly, the second part of that which talks about one or more units of competency from a nationally accredited training package, why then would SES road rescue not qualify for a statement of attainment under that part of the definitions?---As per our scope of registration, SES road rescue is not a unit of competency. It's a component of a unit.

PN770

THE COMMISSIONER: Which unit is that?---For the road rescue component, it's currently captured in the Metropolitan Fire Services. SES is captured in the Victorian Police and SES unit.

PN771

So isn't it somewhere it's not a unit of competence? Is that correct?---Correct. It's not.

PN772

Road rescue?---Correct.

PN773

It must be part of a unit of competence?---Correct.

PN774

Which is that unit?---That's the Metropolitan Fire Services. It's under the two. Process agency calls and facilitative response is made mention within that module.

**** KERRI BINGHAM XN MR COULTER
PN775

MR COULTER: Can I just drop off that booklet for the moment? Thank you. Just a couple of other brief questions. I think you may have explained some of those. I just need to think about this. The only other issue I will address, where staff are required to undertake training for such things as new functions, changed processes, et cetera, is that training accredited under this framework?---No, it's not.

PN776

I think we tendered a document, Commissioner, which is headed CAD 7.9 on upgrade and connectivity work flows sign off. I can't recall what the reference to that was.

PN777

THE COMMISSIONER: That's exhibit R2.

PN778

MR COULTER: You're aware of that document, Ms Bingham?---I am.

PN779

They are issued by ESTA to people who complete training other than certified courses?---Correct.

PN780

They don't represent accreditation at all?---No, they don't.

PN781

It's noted that there is no reference on there to the AQTF logos or any recognition from the AQTF or the framework at all?---No, there's not.

PN782

It's just an internal ESTA document?---Correct.

PN783

What are the only circumstances where we can use that qualifications framework logo formally?---We're only allowed to use the nationally registered training logo as per the AQTF standards upon issuing of their recognised qualifications, so it's the Certificate II and III in emergency communications.

PN784

Which was tendered earlier as exhibit A3. That will be all the questions I have. Thank you, Ms Bingham. Thanks, Commissioner.

PN785

THE COMMISSIONER: Thank you. Mr Clarke.

<CROSS-EXAMINATION BY MR CLARKE [2.33PM]

PN786

MR CLARKE: You said a moment ago that the road rescue training was an element of a unit of competency in facilitative response fire?---And process agency calls, Metropolitan Fire Service.

**** KERRI BINGHAM XXN MR CLARKE
PN787

And process agency calls?---Correct.

PN788

And they're what you've called streamed competencies that are offered to employees who wish to work as fire dispatchers?---Correct. To do Certificate II and III, it's a requirement that you undertake what we call the eight generic units, so everybody doing Certificate II and III will do the eight generic units irrespective of agency, then depending on which agency you've been specifically recruited for will depend on which enterprise specific unit of competency you do, so in regards to Tallyho in this instance, it's process agency calls, Metropolitan Fire Service and facilitative response, Metropolitan Fire Service.

PN789

How long has road rescue been a component of those units of competency?
---Road rescue has always been in those units.

PN790

How many emergency services are involved in road rescue?---In those modules or in - - -

PN791

In those modules?---There's reference to Metropolitan Fire Brigade, Country Fire Authority and State Emergency Service road rescue.

PN792

And those are the unit competencies one needs to acquire if they are to ultimately perform a role dispatching road rescue?---They are qualifications required to dispatch fire services in general, of which road rescue is a component of that, correct.

PN793

The successful completion of a stream competency unit without core competency units doesn't result in a Certificate II or Certificate III, does it?---Correct, but it will result in a statement of attainment.

PN794

A statement of attainment?---Correct.

PN795

You took us to the definition of that before?---Correct.

PN796

You make reference in your statement to statements of attainment at paragraph 9. You refer to employees being issued with a certificate qualification or a statement of attainment. Can you see that?---I do.

PN797

You say that this is reflected in clause 18.5 of the enterprise agreement. Do you have the enterprise agreement with you at the moment?---No, I don't.

**** KERRI BINGHAM XXN MR CLARKE
PN798

I wonder if the witness may be shown the relevant clause 18.5 from the agreement? Does that say anything about statements of attainment?---No, it doesn't. My statement is in reference to defining the accredited training course in that paragraph. Where we have certificate qualifications, as I stated before, that's what we offer. As part of being an AQTF and an RTO, we must and are obliged to offer statements of attainment for any unit that they complete.

PN799

But clause 18.5 of its own says nothing about statements of attainment?---Correct.

PN800

But you do offer statements of attainment?---Correct.

PN801

Clause 18.5 says nothing about training is sexual harassment matters.

PN802

THE COMMISSIONER: Well, that's self evident?---Not that I can see, no.

PN803

MR CLARKE: Yet the organisation presumably provides some training?
---The organisation provides training in a multitude of aspects, but as per the scope of registration, it's Certificate II and III that we only produce qualifications for.

PN804

THE COMMISSIONER: I don't know where that takes us, really. There doesn't need to be any compatibility between - there doesn't need to be absolute congruence between the training activities of the organisation and the terms of the agreement. The agreement overlays the operations of the service and only touches upon some of them, isn't that right?

PN805

MR CLARKE: Yes.

PN806

THE COMMISSIONER: The agreement doesn't deal with each and every operational detail of the functioning of the service on a daily basis.

PN807

MR CLARKE: No, and to say that it offers certificates is not to preclude it from offering other things.

PN808

THE COMMISSIONER: Exactly. I understand the point you're making, but just for the sake of Ms Bingham to understand it's not as if there's any contradiction here.

PN809

MR CLARKE: No.

**** KERRI BINGHAM XXN MR CLARKE
PN810

THE COMMISSIONER: We're focused on the terms of the agreement because that's what is at issue, not the training provided by the organisation.

PN811

MR CLARKE: The Certificate II or Certificate III in emergency communications, is that a Certificate II or a Certificate III in dispatching to the MFB and the CFA?---Certificate II is the process agency calls, Metropolitan Fire Service, which is the call taking aspects of the Metropolitan Fire Brigade and Country Fire Authority and the Certificate III is the facilitative response in Metropolitan Fire Service which is the training aspect for the dispatch radio operations.

PN812

But the Certificate II and the Certificate III are something more than that, aren't they? They're a combination of core competency units and stream competency units?---Correct.

PN813

And if you only do the core competency units, presumably you don't have a Certificate II or III?---Correct. To get a certificate, you needed to have completed all nine units of competency. You get a statement of attainment for whether you do one or two.

PN814

THE COMMISSIONER: As required?---As required.

PN815

Of you not because of the agreement, but because of your status in relation to your registration as a training organisation?---That's correct.

PN816

MR CLARKE: If an employee wanted to multi-skill as you referred to before, to learn how to dispatch to another emergency service, they're presumably required to study further stream competency units?---That's correct.

PN817

Would they be required to do the entirety of Certificate II or Certificate III training over again?---Not necessarily. If they had already undertaken those units, then we have internal recognition as such, so there's no need for them to repeat.

PN818

Would they be given an additional Certificate II and an additional Certificate III?
---They would be given a statement of attainment for the specific enterprise unit of competency they've just completed. For example, it would state process agency calls, Victoria Police, State Emergency Service.

PN819

That's because the knowledge, the only additional knowledge that they would require to do the job is that that pertains to the new agency that they're dealing with?---That's correct.

**** KERRI BINGHAM XXN MR CLARKE
PN820

So the employees only doing the additional training that ESTA requires of them to do the new work?---They're doing the training required to meet the competencies of the role of that position as per the training dictates.

PN821

The work that they're asked to perform?---Correct.

PN822

They're trained to do the job that you want them to perform?---Correct.

PN823

If I could take you to paragraph 20 of your statement, the fire dispatchers were trained to do some dispatching for SES in conjunction with the CAD 7.9 software, weren't they?---They were trained in the road rescue component which included SES units, yes.

PN824

But not all SES dispatching?---Correct.

PN825

In fact, they now do some things that the SES dispatchers at the Victoria Police centre would have done before, don't they?---Correct.

PN826

Nobody is suggesting that because the Victoria Police centre SES dispatchers don't do that any more that they've ceased to be SES dispatchers? Nobody is saying that?---No.

PN827

So the Tallyho fire dispatchers currently are dispatching to three emergency services?---The road rescue component.

PN828

As is clear from paragraph 20, there's some assessment component to the training which included some assessment of the role they performed with SES?---That's correct.

PN829

If a person has a Certificate II or a Certificate III, can it be taken away from them?
---No.

PN830

Does it expire?---No.

PN831

But an employee of ESTA might reach a stage where they're not performing to ESTAs requirements?---Through performance management? Is that what you mean?

PN832

Well, there's a distinction, I suppose. I am trying to draw your attention to a distinction that you might as an employer form the view that Mr Smith is no longer performing to your requirements, but that's something different to the qualification, the Certificate II, Certificate III ceasing to exist, if you like?
---Correct. Anyone can obtain a qualification in the first instance which is distinct from then maintaining a standard brought on by your employer which I believe comes under performance management, if that's what you're referring to.

**** KERRI BINGHAM XXN MR CLARKE
PN833

Thank you, and ESTA takes steps to monitor employees' performance?---That's correct.

PN834

To ensure adherence with the standards that you expect of them?---The performance management standards or the training standards? Are you talking about the RTO standards or the performance management?

PN835

In her second statement, Ms Pike described a process of what she called random audits, exception audits and monthly assessments. Are those elements of ESTAs performance monitoring?---They come under the operational department which is responsible for performance management. The training department involvement in that is merely the referral. We are the resource utilised.

PN836

Sorry, I don't understand?---Well, I have no direct involvement in the performance management. It's a referral service to training, if you like. The operational department is - - -

PN837

They pick up a problem and they come to you and say Mr Smith needs some help?---Under the guidelines that they have stipulated, because it's not on every occasion they wouldn't come to us.

PN838

But the purpose of that monitoring, given that it may result in some element of retraining as you've said?---Correct.

PN839

The purpose of that monitoring is to ensure that employees remain competent, isn't it?---Correct, yes.

PN840

That their skills are maintained?---Correct.

PN841

Which is a different thing to needing to take some active steps to renew or maintain the Certificate II or Certificate III?---We don't renew Certificate II or III. Once you are accredited, you remain accredited. What we are obliged to do under a training standard as per our continuous improvement processes, we are required to ensure they have currency of knowledge. We are required to ensure that at all times our training resources, including our staff, our training equipment, our content knowledge is always updated and current, reflective of the current environment, so that is the refresher training component. It does not result in a reaccreditation nor a reproduction of the qualifications.

**** KERRI BINGHAM XXN MR CLARKE
PN842

When did you first become aware of the dispute that's in the Commission today?
---I couldn't put an exact date on it, some months ago.

PN843

Were you in a position at any time to delay the implementation of the CAD 7.9 system?---Was I in a position? No.

PN844

Nothing further.

PN845

THE COMMISSIONER: Thank you. Re-examination, Mr Coulter?

PN846

MR COULTER: Thank you. There's only a couple of things.

<RE-EXAMINATION BY MR COULTER [2.48PM]

PN847

MR COULTER: Mr Clarke referred back to clause A in point 5 of the enterprise agreement, stating that the statement of attainment wasn't referred to there, but accreditation is, is that correct?---Correct.

PN848

Did you not when you read out the definition in the framework document on page 44, talking about accredited course, did that not refer to qualifications or statement of attainment?---It did.

PN849

So there's no real need to refer to statement of attainment in that part of the enterprise agreement, is there?---No.

PN850

MR CLARKE: I don't think that's a reasonable question, Commissioner.

PN851

THE COMMISSIONER: I think it's suggested that at long last you're facing an objection for leading the witness, Mr Coulter.

PN852

MR COULTER: It's a good answer, though.

PN853

THE COMMISSIONER: In that case, you've upheld the objection.

PN854

MR COULTER: A couple of other points. Mr Clarke indicated that some functions that are now done by the fire dispatch operators in relation to SES road rescue are now no longer done by the VPC operators. To your understanding, are the full functions of SES operations as done by fire operators still required to be done by VPC operators in such situations as redundant arrangements, et cetera?
---The CAD component which is the initial dispatch is now the component conducted by the fire dispatcher now for road rescue, not the SES dispatcher.

**** KERRI BINGHAM RXN MR COULTER
PN855

Would the SES dispatcher at VPC perform those functions in a redundancy situation?---Yes, they would.

PN856

And they would need to be trained in those functions?---Sorry?

PN857

They would need therefore to be trained and maintain their skills in those functions?---Correct, yes.

PN858

MR CLARKE: Commissioner, I've got a reasonable tolerance for - - -

PN859

THE COMMISSIONER: You're very tolerant and I thought I would leave it to you, given your eminent qualifications in this subject.

PN860

MR CLARKE: I don't want to be difficult about it. It's just going on.

PN861

THE COMMISSIONER: It's up to you. I wouldn't perceive an objection based on appropriate questioning as being difficult.

PN862

MR CLARKE: The objection is very clear.

PN863

THE COMMISSIONER: Very well.

PN864

MR COULTER: I have no further questions. Thank you, Commissioner. Thank you, Ms Bingham.

PN865

THE COMMISSIONER: Very well. Thank you very much, Ms Bingham, for your evidence. You're released from your oath and you're free to come and go as you please.

<THE WITNESS WITHDREW [2.51PM]

PN866

MR COULTER: I'd like to call Mr Anthony Jones as a witness, please.

PN867

THE COMMISSIONER: Mr Jones, please stand in the witness box for a moment, if you would, and give either the oath or the affirmation, as you prefer.

<ANTHONY JONES, SWORN [2.52PM]
<EXAMINATION-IN-CHIEF BY MR COULTER

PN868

THE COMMISSIONER: Thank you. Please be seated. Mr Coulter.

PN869

MR COULTER: Mr Jones, can you inform the court what your position is in ESTA and what that entails, please?---My position at ESTA is as the customer service manager for the fire services who operate out of the Tallyho State Emergency communications centre. Basically, I am the central point for supporting the operations of the fire services at Tallyho, look after operating procedures, looking after relationships with customers, fault reporting and fixing, quality assurance in some respects, to make sure that what they are looking at to occur occurs and look at issue investigation and resolution as well, just making sure we meet the ESOs needs, the emergency service organisation's needs in what we do at the centre on a day to day basis.

PN870

Are you also a qualified fire call-taker dispatcher?---I am.

PN871

How long have you been a customer service manager?---I've been the customer service manager since May last year.

PN872

You were a fire dispatcher prior to that?---Correct.

PN873

THE COMMISSIONER: Are you going to exhibit the statement?

PN874

MR COULTER: Beg your pardon. Yes, I should tender that as an exhibit, please, Commissioner.

PN875

THE COMMISSIONER: Mr Jones, do you have a copy of your witness statement?

PN876

MR COULTER: I beg your pardon and you understand that to be a true and correct copy of your document?---I do.

PN877

THE COMMISSIONER: You testify to that, do you?---Yes, I do.

EXHIBIT #R5 WITNESS STATEMENT OF ANTHONY JONES

PN878

MR COULTER: Can you, Mr Jones, outline for us the full role of the fire dispatcher?

PN879

THE COMMISSIONER: There's no need to reiterate what you say in your statement. That would be a waste of time.

**** ANTHONY JONES XN MR COULTER
PN880

MR COULTER: We will take that as read. In your view, what are the most significant functions of the fire dispatcher?---The most significant functions of a fire dispatcher in their role as a call taker and dispatcher, probably the most important is the receipt of the 000 call from a member of the public who requires assistance, obtaining the information in a timely manner, making sure that it's accurate and dispatching the fire services and other organisations as generally required to any event in a timely and correct manner. Following that, there is also co-ordination of requests from the services and that would be via radio or via telephone and actioning non-emergency type notifications, to ensure that the services run smoothly as they're required.

PN881

In your view, how does the road rescue function for SES rate in terms of complexity compared with the road rescue function for MFB and CFA which is undertaken by the fire dispatchers?---The road rescue function for SES is, there's no real complexity involved in that. What we do with SES is the application of exactly the same procedures in regards to recommending the unit. Before the unit is dispatched, the dispatcher would have no idea unless they're well aware of the area, of whether it's going to be MFB, CFA or SES, so there's no change of procedure for dispatch. The paging of the unit is accomplished by the CAD system automatically through the station turn-out and the acknowledgment of the unit and the turning out of the unit is accomplished through the communication by the SES unit with the Victoria Police centre's SES dispatcher.

PN882

MR COULTER: I could make a statement here.

PN883

THE COMMISSIONER: I think those opportunities have probably dried up now, Mr Coulter.

PN884

MR COULTER: You're aware of the changes that have occurred in CAD 7.9, 7.8 and 7.9?---Yes, I am.

PN885

Can you outline the nature of those changes as far as road rescue to SES is concerned?---As per the statement, there was a slight change to the way SES was dispatched by the CAD system to facilitate that the closest road rescue unit, no matter what service would be dispatched, was sent to a rescue call and to do that, we have to have an integrated set-up inside the CAD system as a multi-agency environment, so that all the systems work together for the different emergency service organisations and with the introduction of CAD 7.9, the CAD system works out who is the closest road rescue unit, whether it be MFB, CFA or MFB within their area or CFA of SES outside that gazetted district as per my statement and it then notifies them as per the required method. The main differences in the turn-out screen which I am aware the Commissioner saw on his visit to Tallyho, shows that now it says that there is a page being sent out on that screen by the CAD system at the same time and that would be the difference in the dispatch process, anyway.

**** ANTHONY JONES XN MR COULTER
PN886

There are a number of event types, SES event types and I will provide you with a copy of a document which was part of the statement provided by Ms Pike. There are 17 or so event types on that document. Do you understand those to be the event types currently performed for road rescue?---The event types that are listed in bold are the SES event types or the rescue event types that SES may attend. The other event types there that are not emboldened would be the general SES unit event types which we do not dispatch at Tallyho and therefore have no region.

PN887

Under CAD 7.7, how many of those in bold would the SES road rescue have attended?---Those ones that are listed specifically, all bar the two which state police not attending. The police not attending were introduced with CAD 7.9 during an update in the ambulance call taking system which was inconsequential to the services.

PN888

What is the difference in operation between how each of those events would be processed by the fire dispatcher?---Could you clarify slightly?

PN889

When one of those events comes along, a certain process is followed. Is the process different for each of those events or are they basically the same?---The process once again as outlined in my statement would be the same. What we're looking at here is the dispatch would have a quick review of the event, they put a comment on the event for the pager message which goes to the services. From there they would select recommend dispatch and turn-out and that would be for the dispatch of the units. The process would be the same for each one of those.

PN890

For those events, does the MFB and CFA also dispatch to those events?
---Correct.

PN891

To all of those events?---Yes.

PN892

I have no further questions in that case. Thank you, Mr Jones. Thank you, Commissioner.

PN893

THE COMMISSIONER: Thank you. Mr Clarke.

<CROSS-EXAMINATION BY MR CLARKE [3.01PM]

PN894

MR CLARKE: You were asked by Mr Coulter what the most important or significant, I don't recall the word, functions were, complex, in the fire dispatcher's work and you made reference to eliciting information from the caller and ensuring it was accurate and ensuring a response was activated to that?---Yes.

**** ANTHONY JONES XXN MR CLARKE
PN895

Is that any more or less important because a fire truck is going to end up going rather than an SES unit?---No, but in all cases we will make a fire response. There will always be a fire brigade unit attending.

PN896

But the importance of doing that work or the responsibility of the employee to do that work is not lower because it's an SES truck who also responds, is it?---No. That's correct.

PN897

The function under CAD 7.7 for the fire dispatcher involved something that's been referred to today as a dummy response. Are you familiar with that term?---Yes, I am.

PN898

So a dummy unit on the screen is what? A dummy SES unit occasionally appeared in a road rescue scenario on the screen, did it?---No. To clarify, the dummy SES unit, before we had CAD 7.9, the agencies were very separate in the way they were represented on the screen and fire services always dispatch to a road rescue and in the result of that, if it was inside - they used to run on a boundary based response and to clarify that there wasn't the closest available unit, there was actually lines drawn on a map within which certain units would respond and within those boundaries, if it was an SES responsibility area, then CAD would give us an SES unit as the fire dispatcher to say, yes, there is a rescue going, it just doesn't happen to be a CFA or an MFB rescue.

PN899

The difference now is that when an SES unit appears on the recommend screen and the dispatch button is pressed, that there is some contact from the system if you like directly to SES before, whereas before, it was not the fire dispatcher's action that resulted in the SES responding. There's a distinction between the dummy and the live?---Technically speaking, yes, there is obviously a distinction between a dummy and a live unit. We wouldn't send a page to no-one.

PN900

The list that you've got in front of you there with some items in bold and some items not in bold, you also use the description road rescue in your statement. You say:

PN901

Other than road rescue, initial event notification, all Vic SES unit movements are the responsibility of VPC and Vic SES dispatcher.

PN902

But when you use road rescue there, you're referring to this what we call road rescue includes those bold things?---It doesn't mean someone is trapped in a car, no. That's correct. It's a generic term for what they call a road rescue accredited SES unit which has certain equipment on board which will affect these type of rescues.

**** ANTHONY JONES XXN MR CLARKE
PN903

Under CAD 7.9, a fire dispatcher now having pressed the dispatch button, monitors a page in accordance with certain time criteria to ensure it's acknowledged. That's correct, is it?---Correct.

PN904

That's not something that they did under CAD 7.7?---Not for SES, no.

PN905

THE COMMISSIONER: They as I understand it rang somebody up?---Yes, correct. Under CAD 7.7 the fire dispatcher would ring the SES dispatcher at the police centre and ensure that they had received the event on their screen and that it had been dispatched.

PN906

Do they do anything else?---If the events hadn't been dispatched from the SES unit because we weren't aware of whether or not they were available back under CAD 7.7, they would actually advise us if there was a back-up rescue unit to be dispatched and that could be MFB, CFA or SES again as per the current standards.

PN907

MR CLARKE: If I might show the witness exhibit JP3 to the first statement of Ms Pike which I think was exhibit A1, page 55 I should say, that section is from the CAD 7.9 training manual. Have you seen that manual before?---Yes. I had to complete it as part of my accreditation as a dispatcher.

PN908

That particular section is talking about what we just spoke about before which was monitoring to ensure there is a particular response or acknowledgment within a certain period of time, is that right?---That would be correct, yes.

PN909

It also says at the bottom it's the responsibility of the primary dispatcher, THO or bell, to ensure the rescue response plan is met. That's at the bottom of page 55, yes?---Yes.

PN910

The primary dispatcher THO, that's a reference to a fire dispatcher like Ms Pike?
---Correct.

PN911

That is not a responsibility that she had or other fire dispatchers had in relation to SES units under CAD 7.7?---No. Correct. It was a shared responsibility under 7.7 between fire and SES, depending on who was responding.

PN912

Depending on what service was attending?---What service was responding, that's correct.

**** ANTHONY JONES XXN MR CLARKE
PN913

So there is a follow-up work flow if you like that the dispatcher goes through to ensure the rescue response plan is met?---Yes, the same as with the fire service response, yes.

PN914

And with the SES response, the process of ensuring it within a certain time, there has been an acknowledgment?---Yes.

PN915

And if there hasn't been an acknowledgment or I think what is referred to as some kind of a handshake failure or time out error or confirmation to air failure, that requires the fire dispatcher in the event of an SES response to do something?
---Yes, an identical work flow once again to what the fire dispatchers do for a fire response. The system is working the same way.

PN916

Yes, except the actual time is different?---Yes. Can I clarify times just quickly?

PN917

Yes?---The times can be different between CFA integrated or permanent staff fire stations. Volunteer stations according to what they call their hazard class and SES units, they will all have different times which are recorded in the system and prompted by the system.

PN918

So do the fire dispatchers at Tallyho dispatch to three emergency services?---In my opinion, the fire dispatchers at Tallyho can dispatch to three emergency services in 7.7 and 7.9 because they would be ensuring a response through the phone on 7.7 for a rescue event. Under 7.9, the system is taking over that role halfway.

PN919

And under 7.7, was the purpose of the phone call made by the fire dispatcher to directly generate a response by the SES or was there an intermediary involved?
---The role of the phone call as it currently stands right now as well is to ensure that the SES dispatcher is aware that there is a rescue event and that a response has been actioned.

PN920

But it was a dummy unit under CAD 7.7?---Under CAD 7.7, it was a dummy unit. Under CAD 7.9, the system sends the paging data directly out.

PN921

And under CAD 7.7 it was the VPC operators who needed to convert that dummy let's call it to what you just referred to as a response?---Yes.

PN922

When did you become aware of the dispute that's before the Commission today?
---I have to think about that, probably a couple of months ago, I just head a whisper.

**** ANTHONY JONES XXN MR CLARKE
PN923

Were you in a position to delay the implementation of the CAD 7.9 system at any time?---No.

PN924

Because that's not within your realm of responsibility?---No, the upgrade was planned to take place in I think it was April or May of 2007 and I came on as the customer service manager, previously being a dispatcher, in that month. I was still in a learning and consolidation phase in my position.

PN925

It wasn't within your authority to say hold it?---No, definitely not.

PN926

Thank you. I have no further questions.

PN927

THE COMMISSIONER: Thank you. Mr Coulter.

<RE-EXAMINATION BY MR COULTER [3.12PM]

PN928

MR COULTER: Just a couple of issues. Mr Clarke has referred to a couple of functions which you relate as new functions, namely monitor the page and the not yet respond. Are those functions done by the fire dispatchers in relation to MFB and CFA?---Yes.

PN929

And the functions now done by the fire dispatchers in relation to SES road rescue, are they the same as those functions for MFB and CFA road rescue?---Yes, they are.

PN930

On that list of events, do the fire operators respond to people trapped in houses?
---Sorry, can you repeat that?

PN931

Do fire operators respond to - SES, rather, to people trapped in houses?---It depends on the event type that's been assigned, whether it generates to the fire dispatchers.

PN932

Do the fire operators dispatch to three full services?---No.

PN933

That's all from me. Thanks, Mr Jones, Commissioner.

PN934

THE COMMISSIONER: Thank you, Mr Jones, for your evidence. You're free to come and go as you please. You're released from your oath.

<THE WITNESS WITHDREW [3.14PM]

PN935

THE COMMISSIONER: I think I would prefer you to give your final submissions in writing.

PN936

MR CLARKE: I am sorry, I didn't hear you.

PN937

THE COMMISSIONER: I would prefer it if you filed your final submissions in writing.

PN938

MR CLARKE: I don't propose to take that long, Commissioner.

PN939

THE COMMISSIONER: I would like you to in any event. It's not going to cause any delays. If your claim is successful, the effect of the decision is that the money will be payable from the date of the introduction of the 7.9. If you're unsuccessful, well, the delay doesn't matter and I won't be able to turn my attention to this until the end of the month in any event, due to other commitments and I would also like you to address this whole question of the framework and I will in fact provide you with a opportunity if you want to file any additional material in relation to the framework, to do so. There may be more information publicly available and I must say I am surprised that a commonwealth department of state can get away with putting something like this out without explicitly taking responsibility for the publication. I search in vain for the identity of the publisher. You can infer - copyright is vested in the commonwealth, but one would have thought that the Department of Education, Science and Training might take responsibility for the document if they are indeed the publishers.

PN940

MR CLARKE: Just by way of background, there is a new body called Government Skills Australia, Commissioner, that has some involvement in tinkering with qualifications and training packages, as I understand it. I don't know if they've got a web site yet.

PN941

THE COMMISSIONER: As I say, I leave the opportunity open, if you want to introduce any material relating to the framework, because it has arisen today spontaneously, just apply for that opportunity and I will deal with it by a direction.

PN942

MR CLARKE: It would be my intention to be responsive to the exhibit that was filed today.

PN943

THE COMMISSIONER: It wouldn't be?

PN944

MR CLARKE: It would be, Commissioner.

PN945

THE COMMISSIONER: Yes. That is one of the reasons why I would prefer to put your submissions in writing about that and if you could also focus on the point that I raised with Ms Bingham about the interaction between the certificate levels and the services.

PN946

MR CLARKE: It may be of benefit, Commissioner, if we're addressing you only in writing in conclusion, that the transcript be made available in order that those submissions - - -

PN947

THE COMMISSIONER: It will be. The one thing I will hear you on now if you wish is the proposition that there should be an interim order.

PN948

MR CLARKE: Yes, that was what I was coming to.

PN949

THE COMMISSIONER: Go ahead.

PN950

MR CLARKE: In relation to that point, Commissioner, none of ESTAs witnesses appeared from my questioning to be in a position of responsibility to withhold the role out of CAD 7.9. However, we say that the requirements of the agreement in clause 43.6 are clear. It is in some ways sort of difficult to do this if we're closing, but I put the submission which is already in the written material filed thus far that there has been a change to the work of the fire dispatchers which is not work continuing normally in accordance with the existing work practices before the dispute arose. The dispute which arose was in relation to the introduction of those new practices and in the ordinary course - - -

PN951

THE COMMISSIONER: I am a little bit surprised you want to pursue this course of action because it does seem with all due respect, either you're right or wrong and everybody will get paid or they won't get paid and if they get paid, they will get paid from when 7.9 came in, so what purpose is served given the nature of the service by the disruption that's entailed in the making of such an interim order?

PN952

MR CLARKE: The compliance with the agreement.

PN953

THE COMMISSIONER: True, if you agree.

PN954

MR CLARKE: And I accept that an application for an interim order is normally determined on the basis of the serious question and the balance of convenience. I imagine Mr Coulter has some things to say about that, but - - -

PN955

THE COMMISSIONER: I am not addressing the proposition that you can make it. I am not addressing the proposition that prima facie there may be something to it. I am addressing something quite different which is who benefits by the making of the order?

PN956

MR CLARKE: It's a question of the benefit or removal I suppose of a prejudice or an entitlement. There's an entitlement under the agreement to prevent situations like this arising where the employees or their representatives are arguing for a compensation if you like of a change in what we call the work value equation in our submissions from a position where - - -

PN957

THE COMMISSIONER: Well, I have got some difficulty with that. This is all about entitlements under the agreement, not work value changes.

PN958

MR CLARKE: Yes, and the agreement envisages - - -

PN959

THE COMMISSIONER: That is an important distinction. Either the agreement confers an entitlement to what you're seeking or it doesn't and it may be the case that it doesn't, notwithstanding the significant addition of work value.

PN960

MR CLARKE: No, I understand that point.

PN961

THE COMMISSIONER: You accept that proposition as logical because this is not a question of the Commission exercising a jurisdiction at large. It's to make a decision as to whether or not the remuneration of the employees concerned ought to be increased.

PN962

MR CLARKE: No, I accept that, I accept that.

PN963

THE COMMISSIONER: That's not on the radar at all, but what is on the radar is whether or not the agreement requires that it be increased.

PN964

MR CLARKE: That's correct.

PN965

THE COMMISSIONER: And that's simply an interpretation of the criteria applied by the agreement to the changed factual circumstances of the work and there are changed factual circumstances, but the agreement regulates by its terms what shall occur in relation to these changed circumstances one way or the other.

PN966

MR CLARKE: I concur with what you're saying, Commissioner. I suppose if we look at what the dispute is about, it is a classification dispute and if the applicant is correct, presumably the result of the application or the notification to the Commission will be a decision the effect of which is to reclassify the fire dispatchers to a level higher.

PN967

THE COMMISSIONER: The decision would be the agreement requires the employees to be paid at a different rate of pay.

PN968

MR CLARKE: That's right.

PN969

THE COMMISSIONER: And it would be based on the proposition that at a certain time the movement to the work practices required with the CAD 7 upgrade to 7.9 was such as to create that entitlement so the date from which any entitlement, if such exists, would operate would be the date of the upgrade. It's inescapable that that's got to be the case.

PN970

MR CLARKE: I concur with that, Commissioner.

PN971

THE COMMISSIONER: What is the point, then?

PN972

MR CLARKE: The point is that the employees and their representatives are entitled to dispute a matter like this, a matter whereby on their view of it, the employer if you like is extracting more work from them and not paying them for it when they should be. The employee under the agreement in those circumstances is entitled to say I've lodged a dispute, the agreement requires that you not extract this from me until we've resolved the position or the Commission has resolved the position if we can't as to whether or not we're entitled to the increase.

PN973

THE COMMISSIONER: I understand what it means. I am assuming all that to be true, that employees are in a position to assert that. Let's assume that you're correct and that is the effect of the agreement. Who benefits in the circumstances where the dispute will be disposed of by arbitration one way or the other?

PN974

MR CLARKE: The only benefit, this is really coming to the balance of convenience issue, Commissioner, and the only benefit that I am attempting to demonstrate is the benefit granted by the industrial instrument to not be put in the position where one is required to do this, where one is required to if you like
have - - -

PN975

THE COMMISSIONER: I understand that perfectly.

PN976

MR CLARKE: I take it no further than that.

PN977

THE COMMISSIONER: Is that really of benefit?

PN978

MR CLARKE: I think it is.

PN979

THE COMMISSIONER: Isn't it really just a sort of rather perverse approach to the particular circumstances of this case? If the agreement confers an entitlement upon the employees to a higher rate of pay at the 7.9 upgrade, then so be it. If it does not, then so be it. What is the point of now, after the 7.9 upgrade has been introduced, of aborting that only on one basis or another to reinstate it once the Commission has been able to produce its decision? What is the benefit of that?

PN980

MR CLARKE: As I say, the only benefit that I am relying on is the benefit of being entitled to what the agreement prescribes.

PN981

THE COMMISSIONER: Yes, but the interim order doesn't confer a benefit.

PN982

MR CLARKE: It confers a substituted - - -

PN983

THE COMMISSIONER: In relation to rate of pay, it doesn't.

PN984

MR CLARKE: No, it doesn't in relation to rate of pay. It doesn't affect their rate of pay at all. What it does affect is their work.

PN985

THE COMMISSIONER: Correct, so that somehow or other, there's an aborting of this 7.9, go back to 7.7. Presumably if the employees are entitled to what they're seeking, they wouldn't be entitled to it for the period of time that this interim order would operate.

PN986

MR CLARKE: Yes.

PN987

THE COMMISSIONER: It seems self defeating. You're saying I am doing this work that under the terms of the agreement entitles me to a greater rate of pay, but I don't want to do it until I find out whether I am entitled to that rate of pay and if I am, I won't get it for the period that I won't be performing it during the interim order.

PN988

MR CLARKE: Yes.

PN989

THE COMMISSIONER: It seems a remarkably convoluted course of action and one which just from the point of view of the relationship between the parties is arguably perverse.

PN990

MR CLARKE: It may be described as perverse. I am not putting the submission highly, Commissioner. I am just putting that in the ordinary course, that is what ought to have flowed from the moment the dispute was notified. Now, I understand what you say about the utility of that and where the balance of convenience may lie in those circumstances. I take it no further, but I wish to point out that in the ordinary course, that's what ought to have happened and invite you to make a ruling about that aspect, should you choose to.

PN991

THE COMMISSIONER: I guess part of it is, I think prima facie there's something to be said for your argument, but I just find it difficult to see what the efficacy of the interim order would be.

PN992

MR CLARKE: I don't take it any further.

PN993

THE COMMISSIONER: You may put me in a position where if I have to ask and answer the question of whether or not by not suspending the 7.9 procedure at the point the dispute arose, the service was not applying the agreement as required and making an order, that I would be performing a function which I consider to be perverse in the circumstances, but one which might be required on a strict and literal application of the agreement, but I wouldn't be required to do it except for your application. I do hope you understand why I would be reluctant to make such an order. Do you see why I might be reluctant to make such an order?

PN994

MR CLARKE: I understand why you may be reluctant to make the order, Commissioner. I merely wanted to put on the record that my instructions - - -

PN995

THE COMMISSIONER: The objectives of the agreement aren't going to be served terribly well by this, are they? Clause 5 I am referring to. Is it likely that this is going to help the provision of a first class service designed to exceed the expectations of customers to public and world best practice?

PN996

MR COULTER: Perhaps, Commissioner, I could say something to help the situation. I would suggest that reverting back to 7.7 is technically probably not possible.

PN997

THE COMMISSIONER: I will hear you on that in due course, but I have a point to raise with Mr Clarke which is frankly what on earth are you pursuing this for?

PN998

MR CLARKE: We're raising the issue because and I should say that it was raised from the very beginning, it's not something that's come out of thin air, that we believe that the operation of the agreement was being subverted.

PN999

THE COMMISSIONER: Let's assume you're right in that if it was raised at any point when the 7.7 module was still around and available, could have been activated and let's assume that there was some unreasonable refusal to acknowledge the requirements of the dispute settlement procedure on the part of ESTA by not continuing with the 7.7 arrangements until the dispute was resolved, even so in the circumstances and I underline in the circumstances, it seems perverse to press the matter because it doesn't take your case any further. It's not as if anybody is going to miss out if you're right. Its practical efficacy is arguably counter-productive.

PN1000

If you are successful, for instance, and let's say I got run over by a car or something like that and had to spend three months in hospital and this interim order was in operation until I made a decision and I made a decision in your favour, what's happened is the workers have missed out on three months' pay at the higher level, because what is up for determination is going to apply from whenever 7.9 came in, whether it be what you seek or what ESTA says is the case, so in those circumstances, it provokes my response as saying, well, it's perverse. If I could see some practical protection of the interests of the employees arising that wasn't otherwise going to be dealt with by the dispute settlement process, I wouldn't describe it as perverse.

PN1001

MR CLARKE: No, I understand why you're describing it as perverse and I understand - - -

PN1002

THE COMMISSIONER: If there were foreshadowed redundancies, I would be perfectly understanding of why the organisation would wish the full value of the dispute settlement procedure to be realised, to protect the employees from adverse consequences. If the view, for instance, was that the agreement prohibited the redundancies and they had been notified, I can see why you would want work to continue normally until the dispute was resolved, whether or not the agreement did or did not prohibit redundancies.

PN1003

MR CLARKE: Yes. To take it to its most basic level, Commissioner, it seems to me that we have a substantive dispute and a procedural dispute that we've notified to the Commission.

PN1004

THE COMMISSIONER: Correct.

PN1005

MR CLARKE: The answer to the substantial dispute is going to be one of two things. Either they get paid or they don't.

PN1006

THE COMMISSIONER: Yes.

PN1007

MR CLARKE: The answer to the procedural dispute is a bit more of an issue and what do you do about it and I suppose perhaps I am putting it too highly by saying that I am inviting you to make an interim order to restore the status quo.

PN1008

THE COMMISSIONER: Yes, I note what you're seeking. It's the efficacy of it that I'm questioning.

PN1009

MR CLARKE: I suppose I am just perhaps seeking the assistance of the Commission.

PN1010

THE COMMISSIONER: But how does it assist you? I can't see that it's assisting anybody. If your case is you're entitled to this higher rate of pay, why do you want an order that would disqualify employees until such time as a decision to that effect was made?

PN1011

MR CLARKE: We're seeking a form of relief from the Commission in relation to the procedural aspect of the dispute. What is suggested in the submissions and I don't press this is an interim order is one way of doing that. I don't know what other ways there are of doing it, Commissioner, but I wish to draw it to your attention that my client - - -

PN1012

THE COMMISSIONER: I think you are doing it, frankly. You're doing it in the substantive part of the dispute. What you're saying is that the employees concerned should be paid the higher level rate of pay from the day that they started the 7.9. That is the solution and if you achieve that, you've solved the problem. You don't need an interim order to have that question answered. All the interim order does, even if it was technologically possible, is create some disruption to the existing arrangements and potentially disadvantage the employees on your own case.

PN1013

MR CLARKE: It may do that, yes.

PN1014

THE COMMISSIONER: And that's why I describe it as perverse, perverse vis a vis the employer because you're cross with them that they didn't stay with 7.7 until this was resolved in the first place, so now there's a little bit of payback. What that adds to anything, who knows. It's hard to see that it actually adds anything, any value to the employment relationship or the industrial relationship or, secondly, why have the employees withdraw from doing the work that you consider that they're entitled to a higher rate of pay to perform, so there are two dimensions of which I perceive it to be perverse, but I will hear Mr Coulter on it.

PN1015

MR CLARKE: Yes.

PN1016

THE COMMISSIONER: Mr Coulter.

PN1017

MR COULTER: Commissioner, we don't support this order obviously. I've addressed some of these issues in item 34 of ESTAs submission to you. The point you make is quite correct. If a decision is made in favour of the claim, then payment is to be expected and understand it to be from the date of implementation of CAD 7.9. I would point out that the road rescue component isn't the only part change that occurred with CAD 7.9. It's a fairly complex system change and it took a long time to successfully become operational without adverse impacts and to wind that back to any degree, as I've indicated previously, I understand from people in our organisation it would be impossible. At the very, very least it would present a risk to public health and safety which is something which is just too silly to contemplate in the overall circumstances and I am sure the union is not willing to be a party to anything which would have any adverse impact or a possible adverse impact on public health and safety.

PN1018

THE COMMISSIONER: Could I just ask you a question about this issue and the history of it? Obviously now you're asked to cease and desist 7.9. The logic is you have to revert to 7.7. Was that put to you previously?

PN1019

MR COULTER: I recall it was mentioned to us.

PN1020

THE COMMISSIONER: Do you recall when?

PN1021

MR COULTER: In the discussions we had and you may recall better than me, but it was some time ago. I think CAD 7.9 was pretty well down the track at that stage.

PN1022

THE COMMISSIONER: How long after to your recollection to the introduction of 7.9 was the proposal put to you that you should revert to 7.7?

PN1023

MR COULTER: I can't recall off the top of my head, but the 7.9 has been progressing for a long time before this dispute arose and a lot of work had gone into - - -

PN1024

THE COMMISSIONER: How long has it been since the Tallyho dispatchers have been carrying out the SES road rescue dispatch function under 7.9?

PN1025

MR COULTER: I think probably August last year. I would stand corrected on that.

PN1026

THE COMMISSIONER: How long after that were you asked to cease and desist and go back to 7.7?

PN1027

MR COULTER: I can't recall.

PN1028

THE COMMISSIONER: I might just ask Mr Clarke if he has any instructions on that.

PN1029

MR CLARKE: For my own part, I recall mentioning it when we came for our first conciliation conference.

PN1030

THE COMMISSIONER: In that context I don't know that you made the demand, did you?

PN1031

MR CLARKE: I am sorry?

PN1032

THE COMMISSIONER: I am not quite sure whether you made the demand as opposed to pointing out the term, but do you have any instructions as to prior to that conciliation conference when the matter was raised?

PN1033

MR CLARKE: I am just trying to find something now, Commissioner. Perhaps I can short circuit that by saying aside from addressing this issue of when the status quo argument was raised, we're not in a position to dispute anything that Mr Coulter has said in response to our argument. Yes, the notification to the Commission put the status quo issue in issue. That was 29 May of 2007 which was obviously filed in the Commission and served on ESTA.

PN1034

THE COMMISSIONER: Was that before the 7.9 operation began in August?

PN1035

MR COULTER: Commissioner, we were actually scheduled to go ahead in May, but for a variety of reasons, we didn't get to full implementation until August.

PN1036

THE COMMISSIONER: But you didn't apply for an order until recently.

PN1037

MR CLARKE: No. You're quite correct, Commissioner, we didn't. It was merely raised where one is asked to identify the clauses of the agreement and the matters in dispute. One of the matters in dispute was and I will quote:

PN1038

The employer's introduction of disputed changes during the dispute resolution process.

PN1039

THE COMMISSIONER: My understanding is that if you wanted to revert to the pre-existing instruction, you would have to change the software. Am I wrong?

PN1040

MR CLARKE: I would expect that that would be the case, Commissioner, and Mr Coulter has indicated that that is not possible.

PN1041

THE COMMISSIONER: Certainly you haven't examined the witnesses on the possibility that you could revert otherwise.

PN1042

MR CLARKE: No, I've not. I don't take the matter any further, Commissioner.

PN1043

THE COMMISSIONER: Just as a matter of interest, Mr Clarke, have you given any thought, apart from the interim order, as to what sort of remedy is appropriate in relation to any breach of that term of the agreement or mis-application of it on the part of ESTA? In other words, if I upheld your submission and it might be difficult on the evidence because I don't think you've satisfied me that you sought that 7.9 not proceed and that that was unreasonably refused prior to August, let's assume you had satisfied me or you have that the UFU sought to have that term of the agreement applied in such a way as the progress to 7.9 did not take place until the dispute was resolved, what do you do about that?

PN1044

MR CLARKE: Aside from specific relief, there's little you can do other than
to - - -

PN1045

THE COMMISSIONER: Except make a declaration.

PN1046

MR CLARKE: Exactly, Commissioner, which is usually the second order remedy when one doesn't succeed.

PN1047

THE COMMISSIONER: I just wanted to hear from you whether you had any other thoughts on it. The reason why is this. What is the point of making an interim order this late in the day if ultimately the appropriate relief is a declaration?

PN1048

MR CLARKE: There is no point, Commissioner.

PN1049

THE COMMISSIONER: I wouldn't have thought so. If the ultimate remedy could be, for instance, to require ESTA to do something, then as an interim step towards that, some sort of relief might be appropriate.

PN1050

MR CLARKE: But where the issue is essentially a pay dispute and the final resolution would see the prejudice if you like resolved by back pay in the event we were successful - - -

PN1051

THE COMMISSIONER: A declaration is the only potential outcome.

PN1052

MR CLARKE: Yes, also discretionary, but - - -

PN1053

THE COMMISSIONER: Yes, and to be exercised according to the evidence which in this case would seem to require for active engagement with that sort of remedy some evidence that propositions were advanced by the other party to the agreement that the clause 43 provision ought to be honoured in a particular way and applied in a particular way.

PN1054

MR CLARKE: I wouldn't concur with that, Commissioner. I'd say it's probably sufficient that the evidence records that the dispute resolution procedure was followed and that the employer can be assumed to be familiar with the requirements of the agreement.

PN1055

THE COMMISSIONER: I hear what you're saying, that once the dispute was alive, then it was a reasonable expectation that the employer would diligently attend to the requirements of the dispute settlement procedure.

PN1056

MR CLARKE: Yes, Commissioner.

PN1057

THE COMMISSIONER: On its own reconnaissance.

PN1058

MR CLARKE: Yes.

PN1059

THE COMMISSIONER: Mr Coulter, do you want to say anything further about that?

PN1060

MR COULTER: No. I think I've said enough, Commissioner.

PN1061

THE COMMISSIONER: In your submissions you should address this question because I think there is something in the proposition that if this dispute was alive prior to the movement to 7.9, ESTA has not conformed with the dispute settlement procedure. I think that's a live issue in relation to the need to work according to the 7.7 protocol. Now, I don't know what the outcome of it should be. I am simply saying it's a live issue and I am assuming that compliance with the dispute settlement procedures of the agreement is a matter of deep interest to ESTA and that if it is of the view that it has complied, it would resist any finding by this Commission that it hasn't, even if it's simply a declaration, so you should address that matter as you should, too, Mr Clarke. I also ask you, Mr Clarke, to address that point that I made during your other submission that you hadn't sought an order until now.

PN1062

MR CLARKE: Yes.

PN1063

THE COMMISSIONER: I think the only remaining thing to do is to allow a certain amount of time for the applicant to file their final submissions and any other additional material. If you do seek to file additional material, directions in relation to doing so should be sought. That additional material would be limited exclusively to the question of the operation of the AQTF and in particular in relation to accreditation within the structure of the - as determined by the AQTF, to use the words of the agreement. I will allow until the close of business on the 18th for the UFU and the close of business of 1 February on the part of ESTA. Subject to there being no further need of any hearing of the parties, I will reserve my decision after the receipt of those submissions. Thank you.

<ADJOURNED INDEFINITELY [3.47PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

JANENE PIKE, SWORN PN181
EXAMINATION-IN-CHIEF BY MR CLARKE PN181
EXHIBIT #A1 STATEMENT OF JANENE PIKE WITH ATTACHMENTS PN187
EXHIBIT #A2 SUPPLEMENTARY STATEMENT OF JANENE PIKE PN187
EXHIBIT #A3 CERTIFICATES PN191
CROSS-EXAMINATION BY MR COULTER PN226
RE-EXAMINATION BY MR CLARKE PN429
THE WITNESS WITHDREW PN455
PETER ANDREW PHILLIPS, SWORN PN531
EXAMINATION-IN-CHIEF BY MR COULTER PN531
EXHIBIT #R1 STATEMENT OF PETER PHILLIPS PN558
EXHIBIT #R2 CAD 7.9 UPGRADE AND CONNECTIVITY WORK FLOWS SIGN OFF PN558
CROSS-EXAMINATION BY MR CLARKE PN566
RE-EXAMINATION BY MR COULTER PN635
THE WITNESS WITHDREW PN640
KERRI BINGHAM, SWORN PN642
EXAMINATION-IN-CHIEF BY MR COULTER PN642
EXHIBIT #R3 WITNESS STATEMENT OF KERRI BINGHAM PN647
EXHIBIT #R4 USERS' GUIDE TO ESSENTIAL STANDARDS FOR REGISTRATION PN697
CROSS-EXAMINATION BY MR CLARKE PN785
RE-EXAMINATION BY MR COULTER PN846
THE WITNESS WITHDREW PN865
ANTHONY JONES, SWORN PN867
EXAMINATION-IN-CHIEF BY MR COULTER PN867
EXHIBIT #R5 WITNESS STATEMENT OF ANTHONY JONES PN877
CROSS-EXAMINATION BY MR CLARKE PN893
RE-EXAMINATION BY MR COULTER PN927
THE WITNESS WITHDREW PN934