C2011/5138, Transcript of Proceedings [2013] FWCTrans 12 (22 January 2013)

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 1035415-1

COMMISSIONER ROE

C2011/5138

s.739 - Application to deal with a dispute

United Firefighters' Union of Australia
and
Metropolitan Fire and Emergency Services Board
(C2011/5138)
Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2010

(ODN AG2010/14662)
[AE881005 Print PR501990]]




Melbourne

9.45AM, WEDNESDAY, 16 JANUARY 2013

Continued from 09/10/2012

PN2508

THE COMMISSIONER: Thank you. Sorry about the confusion about the time. I am assuming there is no change in appearances today?

PN2509

MS FORSYTH: No, Commissioner.

PN2510

MR J. TUCK: Mr J. Tuck, appearing the MFB with MS S. KILLACKEY.

PN2511

THE COMMISSIONER: Yes, thank you. I have had a look through the draft provided. I have got preliminary views about all of the sort of matters but it seems to me the most efficient way to proceed would be to ask Mr Tuck to just identify those matters that have been raised by the UFU that the MFB don't agree with so that I can then - perhaps if you go through that.

PN2512

MR TUCK: We can list those - - -

PN2513

THE COMMISSIONER: Sorry?

PN2514

MR TUCK: We can list them, Commissioner, it's more way of our comment on them as opposed to whether we agree or not agree.

PN2515

THE COMMISSIONER: Yes, you give us your response.

PN2516

MR TUCK: It's not meant to be sort of adversarial but we will just put our position about why the changes are there.

PN2517

THE COMMISSIONER: Yes.

PN2518

MR TUCK: I am going to ask Ms Killackey to just go through them.

PN2519

THE COMMISSIONER: That's fine.

PN2520

MR TUCK: She has had the opportunity to do that in some detail.

PN2521

THE COMMISSIONER: That's fine.

PN2522

MR TUCK: So she will just put our comments on the record for you, Commissioner.

PN2523

THE COMMISSIONER: All right, that will be good, thank you.

PN2524

MS KILLACKEY: Thank you, Commissioner. In relation to the tracked changes to the order as provided by the UFU I'll just work through from number one onwards.

PN2525

THE COMMISSIONER: Yes.

PN2526

MS KILLACKEY: In relation to paragraph 1A, "The proposed tracking by the UFU proposes that the transitional period shall apply to all operational employees." We would object to that word "all" being included in both paragraphs 1A and 1B and that is because of the proposed paragraph 13 which is the carve out of, "Training employees who do not have a relevant training qualification and who were engaged by the MFB to meet short term specialist needs." We say that that carve out is consistent with your decision, "Accordingly 1A and 1B do not apply to all operational employees," to the extent that those employees would forward them those paragraphs.

PN2527

THE COMMISSIONER: There are a couple of those people, are there?

PN2528

MS KILLACKEY: We would have to get instructions but that would be consistent with which the way in which training has occurred.

PN2529

THE COMMISSIONER: Very well.

PN2530

MS KILLACKEY: In relation to table one the proposal put by the MFB under the heading, "Station officers who," and these are the group of station officers who would or would not be transitioned to senior instructor or instructor. The UFU objected to the qualification on the second bullet point where a station officer who had less than five years experience as an instructor, the MFB had included the words "in the training department" but those words were removed by the proposed UFU order. We would object to that on the basis that the words "in the training department" are actually consistent with paragraph 73 item 10 of your decision and also paragraph 65 of your decision. Accordingly we say both the qualification and the training department remain and both the station officer - - -

PN2531

THE COMMISSIONER: Have you had a chance to check whether it would make any difference?

PN2532

MS KILLACKEY: No, we have not.

PN2533

THE COMMISSIONER: Does the UFU think it will make a difference?

PN2534

MS FORSYTH: Commissioner, we don't intend to press it but it is of concern when the data hasn't been presented, so there is every possibility that there could be a material difference. Even when the data comes to light there's not obviously we won't - - -

PN2535

THE COMMISSIONER: I understand, thank you for that. Go on.

PN2536

MS KILLACKEY: Thank you, Commissioner. In relation to paragraphs 1C(ii) we have no issue with the proposed change by the UFU, however we would object to both the proposed changes in (iii) and (iv) to the extent that we say those proposed changes are inconsistent with your decision which provided specific time frames by which operational employees had to obtain particular qualifications. In relation to paragraph 2 the proposed change that all training employees are expected to acquire we concede as a change that would be suitable. However, we do not agree to the proposed change or equivalent as determined through consultation in relation to clause 13 of the agreement. Equivalence is a question of fact, not something that should be determined through consultation and in relation to the further change, in the event that a training employee does not hold this qualification the training employee is expected to acquire we do not have any issues with that proposed change.

PN2537

THE COMMISSIONER: Which bit?

PN2538

MS KILLACKEY: The last tracked change on paragraph 2 in the last sentence.

PN2539

THE COMMISSIONER: Yes, yes, sorry, that's pretty clear.

PN2540

MS KILLACKEY: In relation to paragraphs 4 and 5 the MFB maintains that they are appropriate paragraphs to be included in the proposed order. They reflect the powers of the chief officer and his obligations with respect to operational requirements of the MFB. In relation to paragraph 8 that would be consistent with your decision. Paragraphs 9 and 10 are consistent with paragraphs that were inserted into the latter parts of the order.

PN2541

THE COMMISSIONER: Yes.

PN2542

MS KILLACKEY: In relation to paragraph 11 the vocational competencies, we object to the words, "together with broad industry knowledge," that's inconsistent with paragraph 48 of your decision.

PN2543

THE COMMISSIONER: Sorry, the words "together with broad industry knowledge", you say that that's not consistent with - - -

PN2544

MS KILLACKEY: We say that in paragraph 48 of your decision you say, "I am satisfied that the following requirements accepted by the MFB should be specified as part of the position requirements. The vocational companies are those in the public safety training package and the MFB response training framework."

PN2545

THE COMMISSIONER: Yes,

PN2546

MS KILLACKEY: In relation to paragraph 13 which has been objected to by the UFU, we say that that paragraph should remain as it is consistent with paragraph 73 item 10. I think also item 1 paragraph 73 of your decision. Turning to the second half of the proposed order. The UFU objects to the inclusion of an additional effectively I guess role within the instructor stream on the basis that you determined there were only three levels to the instructor stream and they propose that it be dealt with as a note under "instructor". Practically we would have no issue with that, save that we would ask that the terms as we have prepared them that would apply to acting instructor are replicated as the notes within the instructor stream and they be replaced with the proposed changes by the UFU.

PN2547

THE COMMISSIONER: Can I just make a comment there. I couldn't see the substantive difference between the way you've drafted it and the way the UFU drafted it. It seems to me the issue of making it clear that otherwise you have to meet the same conditions for appointment as an instructor, so in other words the issues of there has got to be a vacancy, the points in 1, 2 and 3.

PN2548

MS KILLACKEY: That's correct.

PN2549

THE COMMISSIONER: I mean that's the difference of substance, the rest seems to me to be just draft.

PN2550

MS KILLACKEY: That's exactly correct. We say that in terms of if someone is to be appointed as an acting instructor it is critical that the role of instructor has been declared vacant, otherwise you would end up with a bunch of acting instructors who are automatically (indistinct) instructor.

PN2551

THE COMMISSIONER: Sure.

PN2552

MS KILLACKEY: In relation to the senior station officer, the amendments to paragraphs 2 and 3 are consistent with paragraph 74(1) of your decision and that same comment goes through to the commander, the (indistinct) proposed and the commander row.

PN2553

THE COMMISSIONER: Yes.

PN2554

MS KILLACKEY: Paragraph 15 we say should remain within the order as it's consistent with paragraph 45 of your decision. In relation to paragraph 17 we say that practically that's how streaming should operate and that that was always the intention of streaming is to provide people who were unable to perform full operational duties because of illness or injury would be given priority, however that is a matter for you Commissioner. In relation to paragraphs 20 we do not concede. In relation to paragraphs 22, 23, 24, coupled with paragraphs 30 and 31 we say that that all reflects matters that were put by the MFB through the course of the hearings, they reflect the chief officer's powers under the MFB Act and the requirements he has to allocate operational resources.

PN2555

THE COMMISSIONER: Sorry, I just lost you for one moment there. If you go to 20 you are saying that that should be retained - sorry, no, you - - -

PN2556

MS KILLACKEY: Subject to paragraph 19 which acknowledges that there are instances where an employee might not have the vocational competency.

PN2557

THE COMMISSIONER: Yes, so it would read, "For the avoidance for doubt and subject to paragraph 19."

PN2558

MS KILLACKEY: And subject to paragraph 19.

PN2559

THE COMMISSIONER: Okay, and then you are saying that 22 and 23 - - -

PN2560

MS KILLACKEY: 24.

PN2561

THE COMMISSIONER: Yes.

PN2562

MS KILLACKEY: And then 30 and 31 are all paragraphs which the UFU have suggested be deleted.

PN2563

THE COMMISSIONER: Yes.

PN2564

MS KILLACKEY: We say that those paragraphs should remain within the order as they reflect the chief officer's powers under the MFB Act and his requirements to allocate resources according to operational need and we say those were matters put to the Commission in the course of the hearings, they were reflected in both the MFB proposal and through evidence given by Mr Shane Wright. Paragraphs 25 we say is consistent with your decision, paragraph 26 we do not agree with. It seems that the UFU is trying to include employees who are appointed to meet short term and specialist needs but have training qualifications to be part of the instructor stream and we say that is not consistent with your decision.

PN2565

THE COMMISSIONER: 26 says if you are appointed to meet short term - - -

PN2566

MS KILLACKEY: "And who have relevant training qualifications will form part of the instructor stream and will be paid accordingly."

PN2567

THE COMMISSIONER: I see, yes.

PN2568

MS KILLACKEY: In effect that brings in a class of employees which we say were expressly excluded from your decision. Paragraph 27 we say is not necessary for your decision. That is a finding that was made by you in paragraph 47 of your decision. However, we do not consider it is necessary. Furthermore the last section which says, "Any changes to such work organisation, management organisational structure will be subject to consultation in accordance with the agreement," we say is not an appropriate inclusion in this order, matters that fall within consultation requirements of the agreement are in accordance with the agreement and they do not need to be specified in this order. Paragraph 28, appointments (indistinct) proposed change by the UFU that provides appointments to a stream position will be on merit and will be made at the discretion of the CO is appropriate.

PN2569

There's next, proposed change appointments to the instructor stream position shall be internal and not external reflects evidence that was provided during the course of the hearing. And paragraph 29 I'm not quite sure what the proposed change the UFU is trying to achieve in their last sentence which says, "As indication this order, appointment and progression will be determined according to vacancies and to fulfilment of position requirements." We don't believe that those words are necessary. And I just repeat obviously our earlier comments in relation to paragraphs 30 and 31, that is the changes - - -

PN2570

THE COMMISSIONER: Yes, because they are the same as in the other part.

PN2571

MS KILLACKEY: Those are the comments in relation to the proposed order.

PN2572

THE COMMISSIONER: Thank you, that was very helpful. Perhaps if you might give us an indication of your views about a couple of those things?

PN2573

MS FORSYTH: The first point, Commissioner, is that that relates to paragraph 1A and B. We say that this relates to the issue that is raised at paragraph 13 which on the MFBs proposal would read we say paragraph 74.7 of your decision as retrospective. We see it as prospective, in other words what's captured in paragraph 13 which is paragraphs 1 to 12 of this order do not apply to any training employee who does not have the relevant qualifications and who is engaged by the MFB to meet short term specialist needs, reflects your decision but that it should only apply to those going forward.

PN2574

THE COMMISSIONER: Yes, I understand the issue.

PN2575

MS FORSYTH: Which is why we include "all" in paragraphs 1A and 1B. The second sort of relates to data. We simply say look, we don't press the issue of instructors having to have had experience as an instructor in the training department if in fact that's what the data reflects. There may be no practical difference but we say that change shouldn't be made until such data is forthcoming so that it can be clear that there is no unintended consequence based on the data that formed the basis of the decision. In relation to 1C I understand that (iii) and (iv) are objected to by the MFB, we simply say they are provisos in the event that practically such qualifications can't be obtained within the specified time periods. They are not meant as a way of avoiding those time periods.

PN2576

In relation to paragraph 2 we say that the issue of equivalence did form part of your decision and as the UFU understands it specifically paragraph 74.4 where you found that the process of recognition for prior learning and equivalent qualifications should be subject to further consultation in accordance with the agreement. We therefore say that what the UFU proposes in paragraph 2 is consistent with your decision which should be maintained. In relation to paragraphs 4 and 5 we say that regardless of whether or not the CO may have the powers contained in the content of those paragraphs, those should be deleted but first regarding duration is quite a specific matter and we say that whilst the CO may well have the power to determine duration it was not discussed as part of the nature of how the stream would or would not function, we say duration specifically goes to the issue of the way in which the training departments where organisation, management and organisational structure is determined and it should be something that is subject if necessary to consultation.

PN2577

It is not necessary for your order, Commissioner, we say to include that. The chief officer has the powers the chief officer has. The issue of duration is very specific, it was not contested, there is no evidence (indistinct) sufficient (indistinct) the party as to the way in which duration may or may not affect the training employees or future employees that form part of the stream. Equally in paragraph 5 we say there is no need for you to include specific reference to the issue of recalling to operational duty. If anything this confuses what is currently provided for under the agreement. The chief officer may well - we are not contesting the chief officer's power to do any of these things. The fact is there are provisions under the agreement to deal with issues of recall and those should remain standing without interference of any order, particularly where recall to operational duty wasn't the subject of discussion. Reversion to substantive operational rank was but the actual recall wasn't.

PN2578

THE COMMISSIONER: Yes.

PN2579

MS FORSYTH: In relation to paragraph 7 we understand that there was no objection to the track changes made by the UFU but we just seek clarification in that regard.

PN2580

THE COMMISSIONER: Yes, I don't think there was any objection.

PN2581

MS FORSYTH: Paragraph 8 and 9 I understand weren't objected to.

PN2582

THE COMMISSIONER: No.

PN2583

MS FORSYTH: Paragraph 10 simply reflects your decision and I understand wasn't objected to.

PN2584

THE COMMISSIONER: No.

PN2585

MS FORSYTH: I understand paragraph 11 was.

PN2586

THE COMMISSIONER: Just the last phrase.

PN2587

MS FORSYTH: My understanding was that the UFU didn't - although it looks as though it did - change the content of what was originally proposed by the MFB and the equivalent paragraph of the original order.

PN2588

THE COMMISSIONER: Yes, I think that's correct.

PN2589

MS FORSYTH: I apologise, it looks as though we have but we haven't. Just by nature of the track changes. Paragraph 13 we say should be deleted on the same basis as I have previously discussed and that is that - - -

PN2590

THE COMMISSIONER: That's about whether it's retrospective or prospective.

PN2591

MS FORSYTH: Precisely. Commissioner, we then go to paragraph 14. We maintain that the acting instructor shouldn't be positioned as the instructor stream title. I think that is accepted by the MFB. We would say in that regard that it is for you, Commissioner, in relation to the way in which you view it should be worded. Our concern is primarily with replacing the note for the instructor stream was that it wasn't a separate stream title.

PN2592

THE COMMISSIONER: Yes.

PN2593

MS FORSYTH: In relation to the changes to senior station officer and commander we understand they're accepted.

PN2594

THE COMMISSIONER: Yes.

PN2595

MS FORSYTH: Which takes us to paragraph 15. This is a significant issue for the UFU. If I can take you to paragraph 43 to 45 just to clarify what we say was determined in relation to leading firefighters and what we say wasn't. This is your second decision, Commissioner. There are two particular areas to highlight. The first is that what is determined in paragraph 43 as we understand it is that - I beg your pardon, at paragraph 44, that - and this is starting mid-way through paragraph 44, "In my view it isn't appropriate to specify the relevant work organisation in the training department.

PN2596

It is only necessary to specify what is the minimum vocational qualification, in this case that which is associated with obtaining rank of leading firefighter and to require the appropriate vocational competence relevant to the particular competency be delivered and/or assessed," and then at 45, "It is not necessary or appropriate to include any other particular requirement, such as the requirement that leading firefighters cannot deliver and assess (indistinct) training course unsupervised." We equally say that to remain consistent with your reasoning in paragraph 44 that it's not appropriate to specify the relevant work organisation in the training department is all that was determined by you was that leading firefighters be the minimum operational rank required for entry into the stream. You did not determine that they could perform work unsupervised.

PN2597

THE COMMISSIONER: Yes, I hear what you say.

PN2598

MS FORSYTH: Paragraph 17 is the next area of contention. This relates to the issue really we say of merit appointment. Your decision didn't at any point deal with the issue of the employees who because of injury or illness may be unable to perform full operational duties. In fact what your decision did say was that any appointment would be on a merit basis. We say it excludes prioritisation of any form.

PN2599

THE COMMISSIONER: I agree that I didn't specifically deal with the matter, I think that's quite clear. It is true that the MFB raised the matter in a number of different forms but I didn't specifically deal with it. So really my question is do you object to it or don’t you? What I'm saying is it seems to me that it's not an uncommon thing to have provisions to give some sort of priority to those who are suffering illness or injury in respect of day work opportunities, that doesn't seem to be such a silly idea. But I agree with you, there wasn't a specific decision about it but I want to know, do you object to it or not?

PN2600

MS FORSYTH: We do object to it, Commissioner, I won't push it any further other than to say that.

PN2601

THE COMMISSIONER: That's fine.

PN2602

MS FORSYTH: Paragraph 20.

PN2603

THE COMMISSIONER: The addition of those words, "and subject to paragraph 19."

PN2604

MS FORSYTH: Acceptable.

PN2605

THE COMMISSIONER: That's sensible.

PN2606

MS FORSYTH: It is and I understand that the slight change to paragraph 19 is not in contest.

PN2607

THE COMMISSIONER: No.

PN2608

MS FORSYTH: That then takes us to 22, 23 and 24. Again we say that in relation specifically to the issue of vacancy that - - -

PN2609

THE COMMISSIONER: You have already given us your arguments about that one, haven't you?

PN2610

MS FORSYTH: Yes, paragraph 16 is the appropriate wording which really deals with paragraph we say 22 and 23. And in relation to the issue of nothing preventing ESP from appointing operational employees according to operational ranking, circumstance for the MFB (indistinct) a short term need. That we say doesn't form part of your decision. We don't understand the intent of that provision. It is of some concern to the UFU that that is a mechanism to avoid application for this stream and we say that 25 and 26 appropriately deal with that issue, depending on what, Commissioner, you say about the prospective or retrospective operation of paragraph 74 of your decision in relation to short term or specialist training needs. We say that 27 should remain. There is perhaps an area of compromise here. We did agree with the MFB that the last sentence isn't entirely necessary, but certainly the first is. I understand that other than that - - -

PN2611

THE COMMISSIONER: 29, fulfilment of the position requirements, why did you want that - - -

PN2612

MS FORSYTH: That was simply for the purposes of clarification, both with the issue of (indistinct) being filled.

PN2613

THE COMMISSIONER: But isn't the meeting the fulfilment of the position requirements covered by the point about merit?

PN2614

MS FORSYTH: Well, perhaps it's covered better by the point about the specific qualifications required by virtue of the table. It was really just there for clarification and emphasis rather than anything else. The other two paragraphs 30 and 31 had previously been dealt with, Commissioner.

PN2615

THE COMMISSIONER: Thank you for your assistance.

PN2616

MR TUCK: Commissioner, can I just make some brief comments in response just to finish our position in relation to this matter?

PN2617

THE COMMISSIONER: Yes, that's okay.

PN2618

MR TUCK: Just to draw your attention in relation to the powers of the chief officer. They were part of our submissions and we say arise from the second statement of Chief Officer Wright, so that's the reason from the basis upon which we have included them, that's now a matter for you as to whether you choose to adopt them or not.

PN2619

THE COMMISSIONER: Yes.

PN2620

MR TUCK: In relation to paragraph 15 equally it's an important matter for the MFB to have that clarified, that that is our understanding and the conclusion we draw from paragraph 45 of the further decision and it's clearly a matter on which the parties have different views and for that reason it would be of some import to both of us to understand whether they can or cannot do that. I suspect from what we have heard today that the UFU would take the view that they cannot. We had the understanding given that we are paying them at the operational equivalent of station officer that they could do that work without direct supervision, so it is a critical issue for us to understand and we have put our submissions on that. Equally in relation to paragraph 17 we have put our position on that, it's a matter for you now. I think I'll just indicate Ms Forsyth has highlighted some of the matters we did raise objection to, such as paragraph 11 which obviously is our drafting not a matter on which they seek to change and we withdraw any issues we have raised in relation to those matters.

PN2621

THE COMMISSIONER: Very well.

PN2622

MR TUCK: I think we have put all our positions to you now, Commissioner.

PN2623

THE COMMISSIONER: That's very helpful, thank you. I was acting under the assumption that - and it may have been an error on my part or a misunderstanding on my part - but I was acting on the assumption that my expression "five or more years experience as an instructor in the training department" was a reflection of the data that had been provided by the MFB. My intention was to ensure that those who were in the data that the MFB had provided that were in the line five or more years would be covered. So that was what I in - because that was the basis on which I made the judgement.

PN2624

MS FORSYTH: And to that end, Commissioner, we wouldn’t press it, it was just really for the purposes of clarifying it.

PN2625

THE COMMISSIONER: That was my intention but it is possible now it's been raised that I could be wrong, that's the point.

PN2626

MS FORSYTH: I can say this, it was our understanding of the data that we requested and provided that that's what it does reflect.

PN2627

THE COMMISSIONER: In that case based on that understanding then I think we should put the words - retain the MFBs words, "in the training department". In respect of this issue of all or not all, that really revolves around paragraph 13 and it is certainly my intention that if there are people that are in the department on a short term or specialist basis, that they are not covered by the transitional process. But it's obviously not my intention that just because you don't have the relevant training qualification you'd be excluded because we made specific provisions to deal with transition for people who don't have the training qualifications. So I think there just needs to be some adjustment to reflect that intention.

PN2628

In 1C(ii), (iii) and (iv) I think the qualification that the union's proposed in C(iii) and (iv) is appropriate and is consistent with my intentions. I mean my intention was clearly that you had to do the training and you had to complete it within a certain time frame, but I didn't mean that to the extent that if there was something totally beyond the control of the employee that caused some delay that that wouldn't be able to be dealt with. So I think those qualifications are appropriate and sufficiently narrow. In point 2 I think as determined the reference to consultation is consistent with my decision but I don't think the words "through consultation" because consultation is not a determinative process. So I think it should be, "As determined following consultation."

PN2629

In respect of points 4 and 5, I think that point 4 - and they are duplicated at 30 and 31, so I think paragraph 30 is appropriate, I think for future appointments, that is for future appointments I think it's appropriate to make it clear that the MFB determines the duration of the appointment and that seems to me to be consistent with paragraph 74(3) of my decision. I don't think that it's appropriate - I think it could cause confusion to include it at paragraph 4 for the transition because presumably in respect of the transition individual employees understand the duration of their tenure in the training department and to the extent that they do it's not my intention in the decision to disturb those arrangements. So I think by putting it in I'm not trying to in any way suggest any change to the chief officer's powers, and I agree with the UFU about that, but I just think to put it in the order for the transitional point could produce confusion so I wouldn’t include it at point 4 but I would include it at point 30.

PN2630

I think in respect of point 5 the same point arises, that is I don't think it's appropriate to put it in respect of the transitional position because whatever the current position is remains the position after transition, so I don't think it's appropriate there. I think that in respect of point 31 I don't think it's necessary to include it at point 31 either. It seems to me that issue is covered by the agreement and by the MFB Act. So I don't think it needs to be there specifically. I think the changes proposed by the UFU in paragraph 7, 8, 9, 10, 11, 12 are all appropriate. I have already explained that I think paragraph 13 is appropriate but it needs modification to remove the reference to the training qualifications.

PN2631

I think the changes in the table at paragraph 14 proposed by the UFU are all fine, with the exception that the note under "instructor", the first sentence should read, "An employee without a certificate 4 in training and assessment or equivalent qualification and who otherwise meets the conditions for appointment as instructor may be designated acting instructor."

PN2632

MS FORSYTH: Commissioner, may I ask you to repeat that?

PN2633

THE COMMISSIONER: Yes, I have drafted this point on the run so if you don't think it achieves the objective I am happy to have your comment. So I am just suggesting add in after the words, "training and assessment or equivalent qualification," the words, "and who otherwise meets the conditions for appointment as instructor." It seems to me that clearly means you've got to otherwise meet points 1, 2 and 3. It the parties can suggest a way of making that tighter I am happy to hear that, but I think that probably does deal with that. I will come back to point 15 in a moment. Point 17 I don't think we can include that because I didn't deal with it and there is an objection to it. Point 20 would read, "For the avoidance of doubt and subject to paragraph 19."

PN2634

I think in case I didn't say it that should also be in paragraph 10 and in that case it will be, "and subject to paragraph 9." I agree with the inclusion of paragraphs 22 and 23. It seems to me that I specifically referred to paragraph 16 of the MFBs proposal and I have also made reference elsewhere about the need for - in a number of places about the need for vacancy, so I think that 22 and 23 are appropriate. I don't think paragraph 24 is needed, it seems to me that to the extent it's necessary it's covered by other points. Paragraph 25 should be included. I agree with the MFB that paragraph 26 could potentially lead to some confusion and so I don't think paragraph 26 is required. I think that paragraph 27 first sentence is probably helpful, depending on what I say about paragraph 15. So I'm not making any - but certainly the second sentence of paragraph 27 shouldn’t be included, but I will leave the issue of paragraph 15 and the first sentence of paragraph 27 at this stage and come back to that in a moment.

PN2635

I think the change to paragraph 28 is appropriate. In respect of paragraph 29 we should delete, "To fulfilment of the position requirements and," and I have already explained I think that paragraph 30 should be included but paragraph 31 should not be included. Leaving aside the point about paragraph 15 and the first sentence of paragraph 37, have I covered all of the necessary points because I am going to ask the MFB to give us a new version just to assist us if that's possible, but have I given you sufficient information to do that?

PN2636

MR TUCK: Commissioner, just table 2 in relation to the note, just to clarify what isn't to be included and what is?

PN2637

THE COMMISSIONER: The acting instructor part comes out and it's replaced by the note and then the other changes are I think not in contention.

PN2638

MR TUCK: So the, "Within three months," remains, is that right? So the note reads, "An employee without a certificate 4 in training and assessment or equivalent qualification may be designated acting instructor."

PN2639

THE COMMISSIONER: Yes, that's - - -

PN2640

MR TUCK: "Otherwise it meets the conditions in 1, 2 and 3 above, and then within three months of being designated acting instructor must acquire the certificate 4 in training and assessment or equivalent qualification with the assistance of the MFB."

PN2641

THE COMMISSIONER: Yes, do you think there's something missing there?

PN2642

MR TUCK: No, no, I was clarifying exactly what - we're we had landed at.

PN2643

THE COMMISSIONER: Yes, that's right. Otherwise is that all reasonably clear?

PN2644

MR TUCK: Yes, we will have the benefit of the transcript and we can work up a new clean version, we can undertake to do that.

PN2645

THE COMMISSIONER: Is that all clear from your perspective?

PN2646

MS FORSYTH: It is thank you, Commissioner.

PN2647

THE COMMISSIONER: In respect of the issue about paragraph 15 and the first sentence of 27, I just wanted the opportunity to think through that a little bit more. I mean I definitely know what I think about it but I just need the opportunity to consider a little bit more what the best way to proceed in respect of that is. So what I think we'll do is we'll order the transcript as quickly as possible. We will ask the MFB to produce a revised order to assist us and if they could kindly let the UFU have a look at that as well.

PN2648

MR TUCK: Yes, we will send it to Ms Forsyth today.

PN2649

THE COMMISSIONER: Then we can do that - I don't intend to issue a decision that deals with the other matters that we've dealt with today because I think I've sufficiently explained the approach to those issues, but I may either by form of a decision or if necessary a further hearing I'll deal with this issue of paragraph 15 and the first sentence of paragraph 27. Does that seem a reasonable way to proceed and then we can get the order out without too much further delay.

PN2650

MR TUCK: Thank you, Commissioner.

PN2651

MS FORSYTH: Thank you, Commissioner.

PN2652

THE COMMISSIONER: Thank you for you assistance.

<ADJOURNED INDEFINITELY [10.38AM]