C2013/6401, Transcript of Proceedings [2014] FWCTrans 68 (19 February 2014)

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 1049515-1

COMMISSIONER WILLIAMS

C2013/6401

s.739 - Application to deal with a dispute

Mr Brett Ebbett
and
City of Wanneroo
(C2013/6401)





Perth

9.59AM, TUESDAY, 11 FEBRUARY 2014

THE COMMISSIONER: Yes, good morning. If I can take appearances, please?

MR A JOHNSON: Good morning, Commissioner, Andrew Johnson, appearing on behalf of the applicant.

THE COMMISSIONER: Yes, thank you, Mr Johnson.

MR B TAYLOR: Good morning, Commissioner, Brendon Taylor, agent for the respondent. I have with me MS CAROL LONEY for the instructing agent for the respondent.

THE COMMISSIONER: Yes, thank you, Mr Taylor. Gentlemen, before we get too far into this, I was to just raise a general issue with you just about the application. I'll give you the shorthand version and, perhaps, take you through what my concern is in a little more detail and then we'll discuss how we deal with it.

The long story short is this: the current agreement that, as I understand it, continues to operate as the City of Wanneroo Infrastructure Projects Building and Maintenance Enterprise Agreement 2012. That was approved and operated from 23 November 2012. The long story short, much of the materials that have been filed by the parties deal with - in Mr Ebbett's instance, his original employment under the previous agreements.

The concern I have is that this application made today in 2014, I don't think can deal with what occurred under the previous agreements. And, again, the short version of that is I think I'm going to be limited in what I'm empowered to do to make decisions about what should have occurred only from 23 November 2012 onwards.

The reason I say that is this - and this is probably the technical version - and what I propose is we might just adjourn and let you digest what I've said for a little while and we'll, perhaps, have a chat off transcript.

I'm not seeing this as being fatal to the application, by the way, I think it just needs to be clear on what we can and can't do at the outset, given I've got this view and you may disagree with me, which is fine.

The originating application, which is C2013/6401, identifies that it's an application made under an enterprise agreement and then it identifies in part 3 the 2011 agreement and clause 9, disputes procedures, and the 2012 agreement, again, clause 9, the dispute resolution procedures.

The application, of course, is made under section 739 of the Act. Importantly, and I think this is the problem, the interactions of section 58 and section 54, and particularly, section 58(2) which in shorthand says that where there's a later agreement, which would be the 2012 agreement, then the earlier agreement, which would be the 2011 agreement, ceases to apply to an employee when the later agreement comes into operation - assuming that's after the expiry date of the earlier agreement, which it is. So in colloquial terms, when you make a new agreement the previous agreement ceases to apply from that point.

And then that's probably sufficient, but section 54 makes it plain that where an earlier agreement applies to no employees at the point you arrive at that, then that earlier agreement has ceased to operate. So there's two issues: (1) I think the 2011 agreement ceased to apply to Mr Ebbett on 23 November 2012; and separately, the 2011 agreement ceased to operate, I think, on the same date.

That being the case I don't think the union can bring an application to the Commission under section 739 which deals with a dispute under an agreement that ceases to apply or ceased to apply and has ceased to operate. However, the application, as I said, also identified the 2012 agreement and there are no such difficulties, I think, with the 2012 agreement.

So the point of all of this, I think, is whilst there's obviously relevant history about how Mr Ebbett was first employed and all of those issues, which I think continues to be relevant, the scope of the question I'm empowered to determine, I think, is limited to - and this is my shorthand, what classification should Mr Ebbett have been in under the 2012 agreement, which, in practice, means from 23 November 2012 onwards.

I'll just make that observation off to the side on this. Of course, Mr Ebbett's right, if there is an argument, if he's been under paid, exists in another jurisdiction and exist - I haven't looked at it carefully but I think for many years. So that is not effective. But, of course, where the Commission is used as a shorthand way of dealing with those matters there are, perhaps, some limitations.

So I think, perhaps, it might be useful at this stage if we just get first reactions by going into conference and have a chat about it. So, if we could go off the record, please, for a few moments. Thank you.

OFF THE RECORD [10.07AM]
ON THE RECORD [10.13AM]

THE COMMISSIONER: Just in shorthand what we've discussed. All right. We're back on the record and we've just had five or 10 minutes private discussion and both parties are indicating to me that they're willing to proceed on the understanding that the Commission's capacity to make any determination on this application is limited to a determination of what classification Mr Ebbett should have been placed in from 23 November 2012 under the current 2012 agreement.

And there has been some discussion that the history of Mr Ebbett's employment prior to that - how he came to be employed, and the parties' views about the history of the classification structure under previous agreements may well be relevant dependent upon whether I form the view that the classification structure or the 2012 agreement is ambiguous in some way. So, in that sense, it's generally accepted and I agree that the case both parties have put in their written materials is largely still relevant.

So with that background - before we begin - we proceed, let's just talk about any other procedural issues. Mr Ebbett is here as your witness, Mr Johnson. He's your only witness?

MR JOHNSON: That's correct, Commissioner.

THE COMMISSIONER: Right. You've got a number of witnesses including - and I appreciate your previous advice - Mr Kent, who is not available today for medical reasons which I accept on the face of that. Mr Johnson, do you need to cross-examine Mr Kent?

MR JOHNSON: It would be fortuitous to be able to do so, your Honour. I've had some discussions with Mr Taylor with respect to that.

THE COMMISSIONER: Yes.

MR JOHNSON: Obviously, the applicant's view would be that if the opportunity to cross-examine is not available then we would - we have the view that the witness statement that the Commission is able to make whatever it wants of that witness statement in the absence of cross-examination of what's been said.

THE COMMISSIONER: Well, there's two courses of action really available to us, and really in that sense it becomes your call, Mr Taylor. He's your witness. The union wants to cross-examine Mr Kent. We can either proceed on the basis that he won't be cross-examined and that then leaves some doubt about his evidence. Or alternatively, we're just going to have to had to accept it - given there's five, six, seven witnesses in total, it's not unusual that, unfortunately, some of them aren't available on the day - that we deal with all of the other evidence today and tomorrow, however, long it's going to take, and we adjourn and we're going to have to come back when Mr Kent is fit and able to give his evidence and allow him to be cross-examined. It would delay things, but that may be inevitable.

Mr Taylor, what's your view about Mr Kent's evidence and the importance, I guess, to your case?

MR TAYLOR: Commissioner, my view is that Mr Kent, unfortunately, is unavailable for cross-examination and for the Commission to - I accept that the Commission will hear his evidence (indistinct) because of that - and I'll leave that to the Commission to determine how much weight that evidence is given.

THE COMMISSIONER: Right. Thank you for that, that's helpful, Mr Taylor. We'll proceed on the basis that we'll accept Mr Kent's witness statement. Whilst we're talking about it, let's do that now and mark that as an exhibit, and on the understanding Mr Kent won't be cross-examined and will continue accepting that that is the limitation.

Now, we've got a witness statement of Mr Peter Kent, Consultant Acumen Alliance, it's two pages, signed apparently by him on 28 January 2014, and we'll mark the witness statement as exhibit R1.

EXHIBIT #R1 WITNESS STATEMENT OF PETER KENT, DATED 28/01/2914

THE COMMISSIONER: And in due course, whatever needs to be said about that witness statement can be said in submissions, Mr Johnson.

MR JOHNSON: I wonder, for the sake of expediency of the case, would it be prudent for the exhibits to all be marked before we enter into the witness phase of the proceeding?

THE COMMISSIONER: A number of the documents you provided, Mr Johnson, I'm not sure they're contentious, but are any of them contentious in terms of their existence for identity of documents, Mr Taylor? Because I'm conscious Mr Johnson, I suspect, Mr Ebbett can only identify a few of them.

MR TAYLOR: I don't believe their contentious, Commissioner. What I was going to say is that the respondent has a prepared a bundle of documents. Each of he union's documents are actually in this bundle, and I was wondering if this bundle could be tendered as one bundle.

THE COMMISSIONER: That will be more convenient all round. Are you happy with that, Mr Johnson?

MR JOHNSON: Yes, Commissioner. We notice that to the extent of - now that the proceedings have narrowed somewhat, that quite a number - probably 75 to 80 per cent of the actual documents we tendered do relate to the 2012 agreement. So we're quite happy - - -

THE COMMISSIONER: Yes. If you'd like to pass that up, Mr Taylor. Thanks for that.

MR TAYLOR: I'll just take you through these, Commissioner. I have one for the witness box.

THE COMMISSIONER: Great. Thank you. Right. I think just again for reference purposes, what we might do is just identify the bundle of what we're not going to just refer to as the respondent's documents, as exhibit R2. And exhibit R2 for the record has an index and includes, I think, 24 documents. So each of those documents can be identified by their number as part of exhibit R2.

EXHIBIT #R2 BUNDLE OF RESPONDENT'S DOCUMENTS

THE COMMISSIONER: All right. Are there any other procedural matters that need to be addressed before we proceed, gentlemen?

MR JOHNSON: No, Commissioner.

MR TAYLOR: The only would be the order of the witnesses. I informed your associate this morning on that. So there was a slight change to the order that they were emailed into the Commission, so the first witness that the respondent will call will be Gee, followed by Watson, followed by Worley, followed by Gillespie, followed by Singh.

THE COMMISSIONER: Thanks for that, Mr Taylor. Right. Mr Johnson, if you'd like to begin, please?

MR JOHNSON: If it please the Commission, I'd seek leave to call Mr Ebbett to the stand.

THE COMMISSIONER: Yes.

THE ASSOCIATE: Please state your full name and address?

MR EBBETT: Brett Shaun Ebbett, (address supplied)

<BRETT SHAUN EBBETT, SWORN [10.22AM]
<EXAMINATION-IN-CHIEF BY MR JOHNSON [10.22AM]

MR JOHNSON: Mr Ebbett, if I may - Mr Ebbett, the document before you which indicates is your witness statement. Could you please confirm for the record that you have - are familiar with that document and that the contents of that document are true and accurate?---Yes, that's correct.

Mr Ebbett, in terms of the information contained in that - sorry, Commissioner, I wonder whether that witness statement can be marked?

THE COMMISSIONER: Yes. We'll mark the witness statement of Mr Brett Ebbett as exhibit A1.

EXHIBIT #A1 WITNESS STATEMENT OF BRETT EBBETT

MR JOHNSON: Mr Ebbett, just to assist the Commission in respect of the content of that document, is there any additional aspects of what's contained in there you would like to provide information to the Commission regarding your work experience?---Well, it's all basically there. So, not really.

Commissioner, I have no further questions.

THE COMMISSIONER: Cross-examination, Mr Taylor?

MR TAYLOR: Thank you, Commissioner.

<CROSS-EXAMINATION BY MR TAYLOR [10.23AM]

MR TAYLOR: Mr Ebbett, I've just got a few questions for you?---That's fine.

Could you please flip to document number 8 of the respondent's documents there?---Yes.

**** BRETT SHAUN EBBETT XXN MR TAYLOR

So, Mr Ebbett, this is the ad that you answered for your position in early 2012, is it?---The ad?

The advertisement - - - ?---Yes.

- - - that relates to your employment as a general hand irrigation fitter of The City?
---This is actually what I do for a living.

Yes?---Yes.

Okay?---That wasn't actually stated in the ad. It was for an irrigation fitter.

Sure?---It did not list all that there.

Okay. Well, this is the ad that The City put out?---Yes.

And advertised for, for your position, is it not?---This here?

Yes?---I'm really not too sure if that's the ad.

Well, this is the ad from The City's records?---Okay.

So it says here, second paragraph, under the irrigation fitter role, it says, "The experience operation, maintenance and repair of commercial irrigation systems is required." Does it not?---I think we're looking at something different here.

Have you got - are you looking at tab 8?---Of my witness statement?

No, not your witness statement, sir?---Sorry.

**** BRETT SHAUN EBBETT XXN MR TAYLOR

The bundle of documents that - - - ?---I’m sorry. I'm there now. Sorry, the question was again?

The question was, this is the ad that you answered in early 2012?---Yes, that's correct.

Okay. Second paragraph of the irrigation fitter paragraph there?---Yes.

It says, "Experience in the operation, maintenance and repair of commercial irrigation systems is required." Does it not say that?---Yes.

Okay. Mr Ebbett, can you please turn to document 11 of that same bundle?
---Yes, I've go that.

This the CV that you handed into The City when you applied for the job, is it not?
---That's correct.

Can you tell me where on that CV it says that you've got some experience in the operation and maintenance of commercial irrigation systems?---It doesn't.

It doesn't?---No.

So you didn't have experience in that regard?---No, which I made aware of at my interview.

Yes?---Yes.

Yes, that's right?---In the refit side of things, yes.

Yes. Okay. I might take you now to paragraph 6 of your statement. So paragraph 6 lists your prior experience to joining The City, does it not?---Yes.

**** BRETT SHAUN EBBETT XXN MR TAYLOR

Can you tell me where you've listed that you've got experience in the operation and maintenance of commercial irrigation systems?---It doesn't.

It doesn't. Okay. Is there anything at all relevant here to - - - ?---To my job?

Well, to the operation and maintenance of commercial irrigation systems? Did you have the experience to do the role that you were applying for, or was it the case that you were interviewed - you stated that you had no experience in the interview, and you were placed in the category A in the enterprise agreement?
---Yes.

Yes. Okay. Paragraph 7 of your statement, sir, that lists your qualifications, does it not?---That's correct.

Yes. Can you please tell the Commission which of these qualifications you had when you joined The City?---I had my construction green card.

Okay. But you didn't put that - - - ?---Which is your white card.

Yes. And did you put that on your CV?---Yes.

Okay?---That would have expired. That's when they first came into play - - -

Yes?--- - - - when I was working in the building industry.

Okay. I just want to ask you another question: paragraph 10 of your statement, just the very last line of that statement it says you should have been B3 level from commencement, is that your belief, sir?---Yes, at least B2.

Because I was just a little bit confused when I read the documents that came over from the union, because your statement says that you should have been B3, but the submissions that we've seen from your union say that you should have been in the B level, which is less specific than B3. So would you mind telling the Commission what your case actually is?---As to - - -

**** BRETT SHAUN EBBETT XXN MR TAYLOR

As to - you're here for a classification - - - ?---Okay.

a reclassification, you believe you're misclassified. What classification do you think you should be?---I think I should have been in the mid Bs when I was employed, just through the duties I actually have to perform by myself, sort of - even though I did not have the relevant experience in commercial irrigation I still brought other things by my driver's licence, the abilities to work with people, work unsupervised, to replant, problem solve. The actual irrigation side of it - it's constantly (indistinct) it always changes.

Okay. So maybe I can take you back around to another document. Can I take you to document 12? Now, this is a very interesting document. You may not have seen it before these proceedings. It's actually what they said about you after you interviewed - - - ?---Okay.

Not many people get to see this after they've - - - ?---Okay. Right.

- - - applied for a job. So, Brett Ebbett, on the second page. "Brett interviewed well and explained himself clearly. He was open and honest and informed us that he had no previous irrigation experience but indicated that he's a quick learner and willing to undertaken training." Is that what you told them at your interview?
---Yes, that's correct.

Yes. Okay. All right. Moving along from that - what I might do now is take you to the 2011 enterprise agreements that you were employed under. So that's document 3. Unfortunately, when this document was put together The City didn't do a good particularly good job of numbering it, and I apologise for that. So it's - what category somebody is put into is in that classification structure at the back in the appendix. So if you go to 0 if you go to page 24 of that, that's B3. Now, you'll notice that it's blank but I just want to take you there anyway just for the exercise.

**** BRETT SHAUN EBBETT XXN MR TAYLOR

THE COMMISSIONER: Sorry, which document are we looking at, Mr Taylor?

MR TAYLOR: Document 3, Commissioner.

THE COMMISSIONER: Document 3, is it?

MR TAYLOR: Yes.

So the way it works, Mr Ebbett, is that B3 is an increment point. So you progressed through the increments starting off at A2, quite often, all the way to B3, as a general hand irrigation fitter. B3, is an increment point, which is why that's blank. You say you should have been B3. The best thing to do really is to go back to B2, because B2 has got - lists the relevant experience and qualifications and competencies for an irrigation fitter in the B level. So if you go - that's on page 21?---21, is it? This is 3, is it? In here?

B3 is what you say you should be?---Well, what number is it I'm looking at, I’m sorry?

Yes. Number 21 - page 21?---Under - - -

THE COMMISSIONER: Let's start with the document. We're looking at the - behind tab 3?---Okay, yes.

Okay. Just so we know you've got the right one - it's the 2011 agreement?---Yes, that's correct.

So behind tab 3, and then when you got agreement, turn it around sideways, and the numbers are at the bottom right hand corner and we're looking at page 21, I think. Yes, that's right?---No.

**** BRETT SHAUN EBBETT XXN MR TAYLOR

I think we've got the wrong document.

Madam Associate, could you just help Mr Ebbett? The document which is behind tab 3?---Tab 3.

So behind tab 3. It should be the 2011 agreement?---I see.

And then page 21 of that.

MR TAYLOR: So can you see - - -

THE COMMISSIONER: Have you got page 21, Mr Ebbett?---Yes, I have it.

Okay. I just want to make sure of that. All right.

MR TAYLOR: Okay. Can you see how for a B2 employee under the agreement where you're employed, it says you need two years of experience?---Yes.

It says you need two years of experience?---Yes, that's correct.

So can you understand - perhaps, you can help me. You've gone to an interview, you've answered a role for an irrigation fitter?---Yes.

And you've told them in your interview that you have no experience, and they've put you into the A category, which is the category for people who don't have experience. We've now heard submissions after the fact a couple of years later
- - - ?---Yes.

- - - saying that you should have been B3 or - - - ?---Well - - -

**** BRETT SHAUN EBBETT XXN MR TAYLOR

- - - you look the enterprise agreement, in fairness - - - ?---Yes.

- - - you look at it, and it says you need two years experience to go into B2?---B2. That's correct.

So can you - can you understand how The City might have placed you into the A category?---Yes, I sort of can. But if you go to page 19, if I was put into the B1 level I would obviously be a B2 now, and it says 12 months experience.

Yes. Sure, it does. But it also says - I'm glad you pointed that out, sir, because it also says a number of other things on that page 19. It says, you can perform tasks of medium competency. It says you're responsible for the quality and completion of your own work subject to routine direction?---Yes.

It says, "The individual must supply existing known techniques to the work with decision making being within existing routines, procedures and practices." It says you need a number of accreditations: you need traffic control; first aid; providing of (indistinct) plants; manual hand tools; and OH&S induction. So you've said before that you only have a white card - - - ?---Green card.

when you came to The City, so there are a number of things that are missing from here. Now, Harminder Singh, from The City has given evidence that you needed everything in B1 to be B1. That's Harminder's evidence. So he's the manager infrastructure and maintenance of The City. I mean, in fairness, he does say that perhaps, you know, if somebody was missing one of these accreditations, one or two of these accreditations they could be put in the B1 on the proviso that they got those accreditations fairly quickly after - - - ?---After - - -

Yes. You know, which- in fairness to you, you've worked hard, you've worked for The City, and you've attained a number of these accreditations, you know, to your credit, sir. But when you were employed, you admit, don't you, that the majority of this stuff that I've pointed out, you didn't have experience in? I mean, you say that you were willing to learn, but you didn't actually have experience applying existing known techniques, for example. How could you? You haven't done the irrigation fitting before?---By reading (indistinct) plans. By actually being able to read a plan - - -

**** BRETT SHAUN EBBETT XXN MR TAYLOR

Sure. But that's - - - ?--- - - - of my work is actually, like, reading a plan to find out where the faults are in the ground.

Sure?---Which I have had experience with through my carpentry experience.

Sure. Sure. But you didn't actually have - I mean, I'll go back to the advertisement: "Experience in operation, maintenance, and repair of commercial irrigation systems." Now, it would seem that you didn't have that experience - you couldn't do that at a commercial level?---No.

Because you hadn't been doing it before - which is fair enough?---Yes.

You know. And in terms of the stuff that's listed here in B1, you couldn't do a lot of it. I mean, you weren't responsible for the quality and completion of your own work. Sure, I mean, you know, that would involve surely somebody saying, "Go and prime that (indistinct), or set up a reticulation system here, do all the wiring, set up the controller, set up the plumbing, join the pipes." You wouldn't have been able to do that straight away from day 1, would you, by yourself?---No.

No. Okay. I think I'm done, Commissioner.

THE COMMISSIONER: Any re-examination, Mr Johnson?

MR JOHNSON: Yes. Thank you, Commissioner.

<RE-EXAMINATION BY MR JOHNSON [10.39AM]

MR JOHNSON: Mr Ebbett, the respondent has taken you through that document. If you could remain at document 3 and on that document go to page 19?---Yes, I'm still on that.

**** BRETT SHAUN EBBETT RXN MR JOHNSON

Do you have that in front of you at the moment? The document is a - what we commonly call broadbanded classification document. If I taken you down the characteristics of that document and you if could answer these questions it would be appreciated. At the time - the job that was offered to you, did the job require you to have a C class licence?---Yes.

Did you have a C class licence?---Yes.

The job that was offered to you, did the employer indicate that you had to have more than 12 months experience?---No.

How much working experience had you had prior to going into the job?---Years?

Yes?---I left school when I was 17, and I'm 49 now and I was 47 when I applied for the job.

Okay. And you're - in your statement of evidence you've indicated the background of those jobs?---Yes.

If we keep going down the criteria, the general characteristics regarding machinery talk about use of variety of selected hand tools and minor plan requiring basic operation rather than technical skills. It also says safe operation and user maintenance and minor plant safe operation user maintenance of vehicles defined by licence. In terms of the job that you were appointed to, from day 1, could you tell the Commission the types of tools and equipment that you were using and had been using?---Prior to starting at The City of Wanneroo?

No, no, from when you started with The City of Wanneroo. Could you explain to the Commission the types of tools, equipment, and vehicles that you were using from day 1?---(indistinct) saws, turf cutters, trench and excavators but I haven't got a ticket to use that. The vehicle for getting to work, the wiring things we need - wire cutters, metal detectors, that's basically it really.

**** BRETT SHAUN EBBETT RXN MR JOHNSON

And if I can take you down to the next one, Mr Ebbett, in terms of having to read maps or plans from you've entered into the job, what were you required to do in terms of reading documents? What does the job - what does the job entail?---To read plans and as constructed plans, just to find the faults in the ground where the pipes are.

So you can locate them?---Yes.

And after you commenced employment, how long was it before you had to start reading plans and locating faults and - - - ?---Well, it was instant.

And it indicates - were you required to be able to read other maps as well as the plans for reticulation?---Yes.

Okay. The criteria for interpersonal skills talks about the ability to work within a team. Could you explain to the Commission how the irrigation crew is actually set up? Explain to the Commission the structure of the crew from the top - in effect, the top dog to the bottom dog within the crew?---Within the crew we have a senior leading hand, although Central does not have leading hand at all now.

Do you know what classification the senior leading hand is?---He's E level. My last leading hand, Steve Pozzi, was E3.

And was the person you'd generally report to on a daily basis?---Yes, I report to Steve Pozzi.

Okay. Can you keep explaining to the Commission the rest of the structure of the crew?---Then there was another irrigation fitter called Brett Ormsby and myself. Brett's no longer with irrigation, but we would communicate in the mornings. If someone needed a hand or anything we'd go and help them. If there was a major problem and we needed an excavator or the maintenance truck and we'd all meet with them to help someone, to make it quicker. And apart from that, we'd normally, like, work by ourselves because we all had our set amount of parks. Usually around 25, 26 parks to maintain and check every day. We'd try and get through those as quick as we could and then if someone else needed a hand we we'd go and help them, sort of, get on with their route.

**** BRETT SHAUN EBBETT RXN MR JOHNSON

How often did you see Mr Pozzi?---I saw Steve every day. I saw him in the muster room every morning and we'd usually catch up for lunch to see if pipe needed a hand with anything or give a hand with anything. In some parks the bore and the controller is not where the water ought to be - it can be down in a streetscape or something and they'd need someone there.

So in terms of your interaction with Mr Pozzi, is was a two-way situation, is that correct?---Yes, correct.

So you advised him - what sort of advice did you provide to Ms Pozzi?---Well, he was my senior leading hand so from the technical advice I would get off him - that's how you learn - but I could advise him if I wanted to run a certain park and if he could check the water by the street, where it was running, to help things go through smoother.

If we can keep moving down. The description at B1 talks about tasks of limited complexity and medium competency. The actual agreement document gives no guidance in the 2012 document as to what that means. In terms of what you were doing on a daily basis, can you just walk the Commission through that a little further and explain that sort of tasks that you undertake?---Okay. You go to a park, you check your controller to check for faults. You might have to reprogram it, put on extra day on or take days off depending on weather. If you found a fault, high pressure or low pressure, then you’d have to drag your Ascon constructed map and any information that you've gathered from that park, because the transcoder has gone out, to find the valves - to locate the valves. And then you pick out the wiring fault, if it was a coil or a transcoder, and you make the right adjustments, and then you move onto the next park and check that. And when you've checked all your controllers then you'll start running parks, you'll usually run quite a few: three or four, on a daily basis to make sure that all the sprinklers are turning, working, and the arc is right.

**** BRETT SHAUN EBBETT RXN MR JOHNSON

If I can keep moving you down to page 20, there is a reference to accreditations with respect to traffic control. After commencing employment, how long was it before you did a traffic management - - - ?---It was very quick. All the accreditations they offered me and gave me were very quick within, say, the first three months of working.

All right. And at any point, did they indicate to you that you must have those accreditations - - - ?---No.

- - - to require higher qualifications - higher classification?---No, that was - no, they never told me that at all.

Just going back, Mr Ebbett, to the respondent's document 8, which is the recruitment advertisement. It's in that same folder. If you go to tab 8?---Yes.

The second part of the first paragraph talks about the duties including safe use of operation of plant and equipment but not limited to trucks, irrigation vans, and trenching equipment and other small plant. To the extent that that part of the job advertisement describes the nature of the job you were applying for, when did you start to use those bits of equipment and material? So when did you start to use the equipment? Was it from day 1, or did you have to wait a couple of weeks, or three months?---I was with another senior leading hand from the North for the first 10 days, and then I was transferred down to Central instantly. Had my own van.

So after that you were, essentially, working as a single person unit?---Yes, that's correct.

And you indicated earlier in re-examination, that you interacted with the senior leading hand on that - maybe, once or twice a day?---At that time we did not have a senior leading hand. There was only Brett Ormsby and myself at Central, and he allocated me my parks. I followed him around to find out where they were so I could locate them. He showed me the controllers, what to look for, and then he went to look after his other parks. Steve Pozzi came from South to Central, probably a couple of months after I started in Central.

**** BRETT SHAUN EBBETT RXN MR JOHNSON

All right. Now, in respect of the job, is there any requirement or at any point has the job also required you to deal with external clients in the City of Wanneroo?
---Contractors?

Clients, contractors?---Yes, quite often we deal with contractors from landscaping firms.

Right. What does that involve?---Just if they're putting in playground equipment in, you have to locate the reticulation sprinklers, make an modifications - they'll mark out where they want to put trees or playground equipment, or paths, and we have to modify the system to suit them.

After commencement of employment, how long was it before you were doing those sort of activities?---It actually happened the first week I was in Central, they put a playground in one of my parks.

During the period from when you commenced employment in April through to today, has the employer invited you or offered you the opportunity to do any higher duties at a higher level?---Yes. When Steve Pozzi left, resigned, retired, or whatever you like, I was put into D1, which is leading hand - acting leading hand not senior, because I was actually in charge of training someone else from an employment agency in reticulation so they could help us through summer.

When was that, Mr Ebbett?---It was towards the end of last year.

How long for?---Roughly two months.

And you were paid at that - I was paid at D1.

You were paid at the current level for that level?---Yes.

**** BRETT SHAUN EBBETT RXN MR JOHNSON

So to the extent that your claims before the Commission, you're not seeking to, in effect, double dip for that period are you?---No.

I have no further questions, Commissioner.

THE COMMISSIONER: Before you step down, I just want to clarify. Looking at your witness statement - you're right, Mr Johnson, sit down - at paragraph 7 - have you got that in front of you there?---Yes.

You've got, you say, "During the period of employment prior to my employment the City of Wanneroo, after leaving school I attained the following accreditations in skills." Can you just tell me the first one, the Cert III in irrigation substantial, completed a Cert IV in irrigation: when did you do that?---This was completed at The City of Wanneroo.

Okay?---Yes. This was last year. The irrigation or refit fitters were offered a chance if they want to do Cert III or IV in irrigation.

Okay?---I decided to do Cert III and IV because a lot of the boys I work with have got 20 years' experience, so I wanted to cover everything.

That's helpful. Thanks for that, Mr Ebbett, I just wanted the context there.

Any questions that arise, Mr Johnson?

MR JOHNSON: No, Commissioner.

THE COMMISSIONER: Mr Taylor?

MR TAYLOR: No, Commissioner.

**** BRETT SHAUN EBBETT RXN MR JOHNSON

THE COMMISSIONER: Thanks for your evidence, Mr Ebbett. You can step down?---Thank you.

<THE WITNESS WITHDREW [10.52AM]

THE COMMISSIONER: All right, Mr Johnson, that's your witnesses?

MR JOHNSON: That's correct, thank you, Commissioner.

THE COMMISSIONER: All right. Mr Taylor over to you?

MR TAYLOR: Thank you, Commissioner. Commissioner, just before I call The City's witnesses, I've just got a few points that I'd like to make.

THE COMMISSIONER: Yes.

MR TAYLOR: Commissioner, it's my understanding that Mr Ebbett's submissions in this matter really boil down to three key propositions. It's my intention to state each of these propositions and provide some competing oppositions on behalf of The City. The first proposition seems to be that all irrigation fitters at The City who are not specialists are placed in the category B3.

It's said by the union that Commissioner Cloghan said so in a previous case. That's the LGRCU v City of Wanneroo case cited in our submissions. I'll call this argument the Charles and Tucker argument, after the employees who brought that application.

So this case, Commissioner, Charles and Tucker, were two general hand irrigation fitters who were at the time classified as B3. Mr Charles and Tucker believed that their roles were specialist roles and that they should have been classified as B4, which at the time was the classification for specialists. Commissioner Cloghan looked at the evidence and found that Mr Charles and Mr Tucker were not, in fact, B4. Now, the result of this finding was that Mr Charles and Mr Tucker simply continued as B3.

But I think the point is that Commissioner Cloghan didn't actually make a finding that they were B3. Mr Charles and Mr Tucker simply defaulted back to B3. So it's submitted that Mr Charles and Mr Tucker, in their case, actually doesn't assist Mr Ebbett in any way.

Commissioner, it's The City's submission that at the time of Mr Ebbett's employment, irrigation fitters were classified as general hands parks under the applicable 2011 agreement. Harminder Sing, a senior member of management, has given evidence that in early 2012 general hands in the parks division were categorised anywhere in the spectrum A2, A3, A4, B1, B2 and B3. Specialists are general hand irrigation fitters who are classified as B4.

Employees with little to no experience started at A2 and progressed to A4. An employee needed to meet all the required skills to gain entry into the B1 category. They needed to meet a more rigorous skill set to get into the B2 category. Employers would then naturally increment into the B3 category after satisfactory performance in the B2 category and progression through the increments is normally a yearly event.

Commissioner, the union have led no evidence about the lengths of service and the skill set of Mr Charles and Mr Tucker to enable any meaningful comparison of them with Mr Ebbett. What the Commission does have before it now is a whole raft of evidence about the skill set of Mr Ebbett when he joined The City in April 2012, being his CV; his cover letter; and notes from his interview.

In this situation, the most logical option for the Commission is to compare these documents with the enterprise agreement, being the 2011 agreement. It is submitted that when this is done, Mr Ebbett, in April 2012, simply did not have the skill set to be placed in B, because he had no relevant experience at the time.

When this same exercise is done in respect of the agreement that was registered later in 2012 around November, the same - the Commission will get the same result that in November 2012 the - Mr Ebbett could also not have made it into B1. So it's submitted that in April 2012, The City correctly placed Mr Ebbett into the A3 category.

So the second proposition that the union put is that Mr Ebbett performs the same role as other irrigation fitters in The City, who are also classified as B3. It's said that Mr Ebbett should also be classified B3 and it's unfair that he isn't. So I'll call this the union's equity argument in a sense.

I've got a couple of points about this proposition. The first one is the union haven't led any evidence about who the comparable employees are, their skill set, their length of service, and so on. The Commission is, therefore, not in a position to make any meaningful comparison.

The other point I'll make is that The City's evidence is quite clear that the classification system for general hands allows for gradual progression between A2, A3, A4, B1, B2 and B3 as an employee gains more experience, knowledge and skills. Now, we've heard from Mr Ebbett that as time went on he has gained more experience, knowledge and skills, however, I think the point is that it would not be fair to compare Mr Ebbett as a new starter in 2012 to an experienced general hand with many years of experience who may have worked their way up all the way to B3.

The third proposition that the union put is that category A was always intended for positions that were for trainees, juniors and unskilled staff members. It's said that Mr Ebbett was never a trainee, junior or unskilled. In support of this proposition, we've seen a number of documents from the union which are relevant to the negotiation of the 2012 agreement. These documents use the same language to describe level A general hands: trainee, junior, unskilled, et cetera. However, what the employer says in response to this really the notes from Mr Ebbett's interview indicate that he could have easily been described as a junior, trainer, or unskilled.

I'll quote from the notes from the evidence, Commissioner. It says, "Mr Ebbett was open and honest and informed us that he had no previous irrigation experience." So that's document 12, Commissioner. Also the same documents that have been led by the union also indicate that the level B category was for the experienced general hand. At the time he commenced, Mr Ebbett, was clearly not experienced.

Commissioner, it's submitted that Mr Ebbett has not satisfied the onus of proving that he was incorrectly placed at A3. It's also submitted that the Commission is only required to alter a classification decision if the Commission is presented with a manifest and obvious error. Commissioner, there was no manifest classification error on the face of the evidence.

We also submit that the Commission exercise caution in altering the decisions of The City's management. For these reasons it's our case that the application should be dismissed. That is all I intended to say in opening. I think that we've Mr Gee. So he's outside.

THE COMMISSIONER: Yes. We'll call him.

THE ASSOCIATE: Please state your full name and address?

MR GEE: My name is Brian James Gee (address supplied)

<BRIAN JAMES GEE, AFFIRMED [11.02AM]
<EXAMINATION-IN-CHIEF BY MR TAYLOR [11.03AM]

MR TAYLOR: Madam Associate, I have Mr Gee's statement here?---Thank you.

Mr Gee, do you recognise that?---I do, yes.

Mr Gee, before I get started, would you tell the Commission, I suppose, a little bit about our position and your role at The City?---Yes, I'm the coordinator of engineering maintenance. I've been at The City since December 2006. I've been in local government for the last 20 years - 13 of which was in the UK.

Yes. Do you recognise that document that I've handed up?---I do, yes.

What is that document?---This is the statement that I gave regarding this issue that's before the Commissioner now.

And do you affirm that its contents are true and correct to the best of my knowledge?---Yes, I do.

No further questions?---Thank you.

THE COMMISSIONER: Yes. I'll mark the witness statement of Brian James Gee as exhibit R3.

EXHIBIT #R3 WITNESS STATEMENT OF BRIAN JAMES GEE

THE COMMISSIONER: Cross-examination, Mr Johnson?

MR JOHNSON: Thank you, Commissioner.

<CROSS-EXAMINATION BY MR JOHNSON [11.04AM]

MR JOHNSON: Mr Gee, you indicate in your statement that you're involved in the development of a new classification structure. Can you tell the Commission, from your knowledge and recollection when negotiations for that structure started?---I'm not sure of the exact date of when those negotiations started. It would have been around, probably 2008 or 2009 when I was not long into The City in my role as coordinator engineer and maintenance.

**** BRIAN JAMES GEE XX MR JOHNSON

Did you attend all the negotiations involved in that first agreement negotiations?
---I can't recall if I attended all negotiations, I'd be surprised if I did.

The union has evidence or has - would it surprise you that at least on two occasions in October and November 2009 you weren't present - - - ?---I - that wouidn't surprise me at all, yes.

In terms of your table 6, that, in effect, is your interpretation of what you had put on the table, isn't it?---That's my understanding, yes.

So it's not actually a direct reflection. Now, you make a statement here in number 7 that is your understanding that employees were required to meet all the required skills and attributes to be placed in a particular classification. Do you stand by that?---Yes.

What I'd like you to do. I don't know whether you have in front of you your advocate's exhibit R2. I have a copy - I'll provide you an identical copy of that document. I'd like you to look at - do you - - -

MR TAYLOR: I think it's number 2 in the folder?---Number 2 in the folder.

MR JOHNSON: If I can take you to - - - ?---Yes.

- - - document 2, and the starting page of that has got the notation Confidential, and then it says City of Wanneroo Development of a Classification Schedule. Have you got that document in front of you?---Is there a - - -

It should be tab 2?---Yes, tab 2 I'm on.

If I can take you, firstly - - - ?---Was there a page number?

**** BRIAN JAMES GEE XX MR JOHNSON

Sorry? Was there a page number?

Yes. If I can take you to page 7 in tab 2?---Yes.

You should see down the bottom there there is a description by - in the document regarding classification relativities. So if I can take you down to the light green?
---Yes.

Do you see there that it sets out that in respect of level 4 construction maintenance parks, do you see the proposed level in the new structure there?---That's a level 4 construction parks, I see, level B1.

All right. Thank you. And you don't dispute that this document is the document that was before you in the negotiation phase?---Yes. I also see level 3 parks as A2.

And are you aware that the positions that were being considered as part of review of reticulation operators or fitters positions were previously level 4A?---To be honest, I have no involvement in parks - - -

So you don't have any knowledge - - - ?---My role is engineering. My understanding is that irrigation fitters were general hands, but it's purely my understanding.

So you don't have actual - you can't provide any further evidence?---No.

Okay. That's fine. If I can go a little bit further in the document with you. I wonder if I could take you to page 12?---12. Yes.

And if I can get you to read onto the record from the second paragraph down to the bottom of the page, please?---"From these characters" - - -

**** BRIAN JAMES GEE XX MR JOHNSON

Correct?--- - - - "form the basis of a framework that allows all operational jobs to be established within one classification framework or hierarchy. The classification schedule is largely achieved by using standard characteristics across all jobs (indistinct) job and trade specific attributes." Sorry, did you say the whole page?

Yes. Keep going?---"This process includes the initial ranking of key common jobs to service the basic eight points of the proposed grade structure. Initial development of standards drawn from awards and agreements to establish the characteristics for determining the worth of jobs in terms of a framework, establishing a grading method that ensures consistency in the application of characteristics and a plan for consistent naming of job types. The framework establishes a method for grading jobs, in turn, the job grading standards help to define grade levels in keeping with existing arrangements without limiting the need to address anomalies the characteristics of immediate yardsticks or tools used for establishing grade levels of the jobs to which they apply. Under the job grading method used the grade of a job is decided by comparison of the whole job with the characteristics. This approach provides a means for analysing and comparing jobs with similar characteristics and ensuring jobs involving the same level of work can be consistently assigned for same grade. Under this job grading system jobs with sufficient similar levels of work are placed in the same grade. Jobs with significantly different levels of work are placed in different grades based on the extent of the differences."

So, Mr Gee, just reading that on its face is there anywhere there that it talks about classifying a person?---Not that I can recall. It's talking about the process.

And what's the key word there? The key word is the job, isn't it? This is a procedure for classifying jobs?---I would believe so.

So this initial transition took up the operational structure of the City of Wanneroo from old classifications, and determined classifications on transition into the new structure?---Mm'hm.

You've already given evidence, of course, that you can't talk about the parks because you don't actually know?---I don't know. No.

But in a general sense this structure does not say anything about classifying persons. It says classifying jobs?---Yes.

Right, and in respect of your statement that to be in level B1 - you say in your statement that it's your understanding that a person, an employee, has to meet all the required skills. How does that fit against this?---The jobs that the classification structure relate to within the defined - back in 2009, are you talking about when they was transferred over, or are you talking about - - -

**** BRIAN JAMES GEE XX MR JOHNSON

Well in fact there are two different things and I will come to that point, because there is a transitional mechanism - - -?---Yes.

- - - in that document?---Yes.

Which is quite different to the mechanisms in the 2011 and 2012?---Yes.

And quite a different scenario there. But coming back to this, you've made a statement that an employee would need to meet all the required skills and attributes to gain a classification?---Yes.

How does that marry up with what the actual document that was certified by the Commission actually says?---I believe they say the same thing. This is a mechanism, a tool, to be able to get a group of people, employees, from their existing levels to the new structure that would've been put in place.

But it doesn't talk about that. It talks about the jobs?---Yes, the employees - - -

They're two different things?---- - - obviously operate the jobs so you take on board what the employees bring to the table and where they fit within the structure, and transfer them across.

But that's not what the document says. The document says - - -?---That's my understanding.

- - - jobs. Right. Correct. And that's the key word; it's your understanding. Can you find - you're familiar with this document, aren't you?---The one in front of us here?

Yes. Yes, during the - you made a statement that you were involved in - - -?
---Back in 2009, yes.

**** BRIAN JAMES GEE XX MR JOHNSON

So you're very familiar - you should be reasonably familiar with the document?
---Yes.

Where does it say within that document that to gain a level, a person has to have all the skills for that particular level in the broad banded description?---I believe it's towards the back of the document. If you - basically point 5 talks about the movement through and across classification levels.

Point 5? What page are you on there, Mr Gee?---48.

Page 48?---I mean it - - -

Well in fact that talks about moving incremental points within the classification level, doesn't it?---Through and across classification levels. There's information in there with 5.1, 5.2, "Employee will move to a higher increment point within the classification level based on years of experience with the City and satisfactory performance. In this respect, after one year at the first increment point an employee is able to move to the second increment point, and after two years' experience move to the third increment point. In order for an employee to move from one classification level to a higher classification level they have to apply for an advertised position and be selected on merit, or an employee has to apply for a re-classification on the basis of meeting the requirements of the higher level".

Right. Now - - -?---So that was obviously to do with the movement and re-classification.

If we take you back?---Yes.

If we take you back to that, though, that talks about an employee moving increments within the level that's allocated?---Yes.

**** BRIAN JAMES GEE XX MR JOHNSON

Correct?---Yes.

Now that document operates in - if I take you back one page?---Okay, yes.

It operates in conjunction with transition arrangements to the new classification schedule?---Yes.

But we're not actually talking about that here with Mr Ebbett, are we, because he was appointed in April of 2012?---I don't know when he was appointed, to be honest.

Okay?---That's not my field.

So you can't offer anything there?---No.

But to the extent you're reading that, what you see in front of you, the words are "transition to the new classification schedule"?---Yes.

And then it says, "Process for transitioning"?---Mm'hm.

And then there's a further commentary regarding the movement within the classification levels. So in effect this document, which I believe you said you were familiar with, set up a basis for people to come across from the old Municipal Employees Western Australia Award?---Yes.

And then also set up a process which described how they could move within that level in the new structure, correct - once that position is allocated?---Yes, so there was two - - -

All right?---- - - two phases. Yes.

**** BRIAN JAMES GEE XX MR JOHNSON

So if I take you - the respondent has tabled at tab 16 an organisation flowchart?
---Okay. Tab 16?

And it's a multicolored document?---It is, yes.

Okay, so if I take you across the page, just take a look at the blue area and starting from the left, the third box - sorry, underneath, "The coordinator parks maintenance north" working from the left to right, the third box down, the second column. Do you see a description of the irrigation fitters' positions there?
---Irrigation fitters I've got for a - - -

Yes?---- - - Andrew Tucker. Is that the one?

Yes. Yes?---Yes.

And Mr Peade and Mr Rawlins?---Yes, Mike Peade and Peter Rawlins - - -

And then if you go across and you'll see the same again under, "Park maintenance central". Do you see - - -?---Yes, irrigation for central - - -

And then again under, "Parks maintenance south". Do you know - have you ever sighted this document, Mr Gee?---I haven't. No.

All right, so you're not really in a position to comment about its authenticity or when it was in - - -?---No.

- - - fact established?---No, I'd only look at my engineering structure in that detail.

Did you have any involvement in the negotiations for the 2012 agreement?---I didn't have any involvement in that that I can recall.

**** BRIAN JAMES GEE XX MR JOHNSON

So just coming back to your key statement?---Yes.

You can't actually identify that an employee is able - is required to have all the skills to be placed in a classification?---Yes. I can only go on what I recall, and that's from the engineering maintenance perspective. We transferred people that had met the criteria to be able to go across.

Yes, transferred from the old structure to the new?---From the old structure.

Yes?---Correct. To the new structure.

Yes, so to the extent that the new structure's up and operating, you can't actually comment on what that new structure requires of people coming in that apply for jobs under it?---I can comment on that in respect of the engineering maintenance, where I've employed staff since under that agreement, and that would be that if they don't meet the criteria of a level 3 or a level 4 we would accordingly place them in the structure that suits. There's obviously key things that we look for to be able to put them into the correct level for performing their job, their role.

I've got no further questions, Commissioner.

THE COMMISSIONER: Any re-examination, Mr Taylor?

<RE-EXAMINATION BY MR TAYLOR [11.19AM]

MR TAYLOR: Thank you, Commissioner.

Mr Gee, if I could take you back to document 2?---Yes.

I take you back to page 48 of that document?---Yes.

**** BRIAN JAMES GEE RXN MR TAYLOR

So 5.2 - tell me if you agree with this - 5.2.2 says:

An employee has to apply for a reclassification on the basis of meeting the requirements of the higher level and this reclassification is approved by the PEAT. It is envisaged that 5.2.2 will only apply to level A employees meeting the requirements for level B.

That's consistent with what you said in your statement, isn't it?---Yes.

Isn't that consistent with - it was always the intention that all the requirements of level B needed to be met before an employee could be placed in B1?---That's correct, and if not, there was a scope for them to seek re-classification. But the transfer was from an A to the equivalent of a level B.

But we're not talking about the re-classification from the Municipal Employees Award?---Mm'hm.

Are we talking about that or are we talking about movement, just general movement into the B category?---Prior to this agreement being in place there was no movement between an A and a B.

Yes?---If you was an A you was - you remained an A.

Yes?---After the agreement - and I think this is why we went through the process of establishing the new agreement - - -

Yes?---- - - was to give employees an opportunity to progress if they met the criteria.

Yes, and 5.2.2 read together with 5.3 - - -?---Yes.

**** BRIAN JAMES GEE RXN MR TAYLOR

Does that not mean that all the criteria of B1 would need to be met before anybody - - -?---That - - -

- - - could be progressed into B1?---Absolutely. That was always my understanding. If you didn't meet the criteria, you couldn't progress. You had to meet the criteria to be able to progress.

Excellent.

No further questions.

THE COMMISSIONER: Thank you for your evidence. You may step down?
---Thank you.

And you are excused.

<THE WITNESS WITHDREW [11.22AM]

THE COMMISSIONER: Yes, your next witness Mr Taylor?

MR TAYLOR: I call Mr John Watson, Commissioner.

<JOHN WATSON, AFFIRMED [11.23AM]
<EXAMINATION-IN-CHIEF BY MR TAYLOR [11.23AM]

MR TAYLOR: Mr Watson, do you recognise the document that Madam Associate has given to you?---Yes I do. Yes.

What is that document?---It's my statement.

And do you affirm that its contents are true and correct?---Yes I can. Yes.

Would you please tell the Commissioner a little bit about your role, what your position is and just sort of briefly how you fit in to the City's management structure?---Sure. I'm one of a coordinator parks maintenance and I sit below the manager. Then there's myself as a coordinator, then there's a supervisor, leading hand and general hand. And I sit within that structure.

Thank you. I've no further questions.

THE COMMISSIONER: Thank you. We'll mark the witness statement of John Watson as exhibit R4.

EXHIBIT #R4 WITNESS STATEMENT OF JOHN WATSON

THE COMMISSIONER: Any cross-examination, Mr Johnson?

<CROSS-EXAMINATION BY MR JOHNSON [11.24AM]

MR JOHNSON: Mr Watson, I just want to reaffirm in your statement at item number 6, you weren't involved in the recruitment or placement of Mr Ebbett?
---That is correct. Yes.

I've no further questions.

THE COMMISSIONER: Any re-examination, Mr Taylor?

**** JOHN WATSON XX MR JOHNSON

MR TAYLOR: No further questions.

THE COMMISSIONER: Thanks for your evidence, Mr Watson. You can step down and are excused?---Thank you.

<THE WITNESS WITHDREW [11.25AM]

THE COMMISSIONER: Who's next, Mr Taylor? Mr Whalley?

MR TAYLOR: Mr Whalley, Commissioner.

THE COMMISSIONER: Whalley, sorry.

<WILLIAM WHALLEY, SWORN [11.25AM]

THE COMMISSIONER: Carry on, Mr Taylor.

<EXAMINATION-IN-CHIEF BY MR TAYLOR [11.25AM]

MR TAYLOR: Thank you Commissioner.

Mr Whalley, do you recognise the document that the Madam Associate has handed to you?---Yes I do.

And what is that document, sir?---It's this - the statement regarding the - from the coordinator park maintenance, myself.

Yes?---Regarding the reason we're here with - between the City and Mr Nesbett - Mr Ebbett.

Very good, and do you affirm that its contents are true and correct to the best of your knowledge?---Absolutely.

And are you able to tell the Commissioner a little bit about your role, your position title, how you fit in and how it relates to Mr Ebbett?---Sure. I'm the parks coordinator for the south area, City of Wanneroo. That's responsible for areas south of Joondalup Drive to Beach Road. Mr Ebbett comes under my wing, I suppose, as an irrigation fitter within that - those zones of the southern area. And is that all?

Yes, that's all your required to give, unless you've got anything more to add?
---No. I suppose the geographical areas within that zone are broken up to where the irrigation fitter is responsible for sections, roughly probably 13 to 20 parks each, for Fair Work. And within that zone Mr Ebbett is responsible and accountable for the irrigation within those passive and active sports fields.

**** WILLIAM WHALLEY XN MR TAYLOR

Thank you Mr Whalley. No further questions.

THE COMMISSIONER: Thank you. We'll mark the witness statement of William Whalley as exhibit R5.

EXHIBIT #R5 WITNESS STATEMENT OF WILLIAM WHALLEY

THE COMMISSIONER: Any cross-examination, Mr Johnson?

<CROSS-EXAMINATION BY MR JOHNSON [11.28AM]

MR JOHNSON: Yes. Thank you Commissioner. Mr Whalley, do you have the respondent's exhibit book in front of you?---I - - -

There should be a big folder?---This - yes.

Yes, that looks like the appropriate document?---The grey one? Yes.

Mr Whalley, you say in your statement of evidence that you were involved in the negotiation of the 2009 agreement. How many meetings did you attend of those negotiations?---Probably official negotiation meetings, Andrew, probably zero. But I basically consulted by the manager, the HR coordinator and the HR manager, over that process.

So you weren't actually at the table with the joint negotiations between the unions and the council?---That is correct.

You also indicate in your statement at number 9 that - and based on what you've just said, it's your opinion or you contemplated that an employee would need to satisfy all the criteria of B1 to progress into the B category. If I can just take you to the document, the initial classification document, and it's at tab 2 in that exhibit book, and I just take you down at tab 2 to - if I can take you to page 12 in tab 2. I'll give you a chance, Mr Whalley, if you just take your time to read down that, from about the second paragraph to the bottom.

**** WILLIAM WHALLEY XX MR JOHNSON

THE COMMISSIONER: Which document am I supposed to be looking at in the folder, Mr Johnson?

MR JOHNSON: It's tab 2 in - - -

THE COMMISSIONER: Yes, page number?

MR JOHNSON: Page number 12, exhibit R2, Commissioner.

THE COMMISSIONER: Thank you.

MR JOHNSON: Have you had an opportunity to read that?---Thank you.

Mr Whalley, in that page where does it refer to classifying persons?---It doesn't.

So it talks about classifying the jobs, doesn't it?---Yes.

Okay, and from your experience of the indirect feedback you got from the human resources - I presume there's a human resources department brief you on these negotiations with this document?---Correct.

You would have been advised that the union and the council were negotiating to transit the job classifications from the old award to this new structure?---Correct.

Is that the general thrust? Right, okay, and this document, was that provided to you before the employees actually registered, or certified, or voted to accept the document? Did you have a copy of it?---Yes.

Right, and did you read the document at that time?---I would assume so. Yes.

**** WILLIAM WHALLEY XX MR JOHNSON

You assume that you did. So we can take it that you read it and were familiar with it?---Probably. Yes.

So your understanding would have been that all the jobs that you had under your control were going to move from an old classification structure to a new one?
---Correct.

And that in fact occurred, didn't it?---Yes it did.

And the jobs within the irrigation department at that time, how many jobs were there at that time?---How many positions - - -

How many irrigation - - -?---- - - vacant, sorry?

Yes, how many irrigation fitters' jobs were there at the time?---I can't answer that correctly. So I don't know.

All right. The ones that you do know, do you know - can you recall from what level they transferred? What they had prior to this coming into place to the new classifications they attained?---No, I don't recall.

All right, so you can't actually state that. The respondent has tabled an organisational flowchart. It's at tab 16. The colour chart there and the tab number is 16, if I can turn you to that? It folds out, Mr Whalley. Do you have that document in front of you now?---Yes I do.

If I can just go - if we can go outwards starting on the left-hand side, the first column, and work our way across to the second column from the left. And then you'll see a description of irrigation fitters within that structure, and all of those classifications there are level 4A, is that correct?---Yes it is.

**** WILLIAM WHALLEY XX MR JOHNSON

Yes. Now some of those people - - -?---Sorry, I do apologise. Excluding the team leader, irrigation.

Yes, who may well have been some other classification level, yes?---Correct.

Mr Whalley, have you seen this document before?---Yes, I produced this document.

Okay, can you tell the Commission when you produced it?---Accurately no, but obviously it would've been prior to the 2009 agreement, working off the - well, prior to the 2009 agreement we assessed that all outside workforce employees were based on individual levels of 3, 4, 4A, 5 and 6.

Right?---Prior to the 2009 agreement.

And in fact some of the people there, they've moved on from the council now, haven't they?---Yes, they have.

So if we look at the retic fitters, for example, under "Supervisors park maintenance north", Mr Peade and Mr Rawlins are no longer there?---That's correct.

So you had to fill other people in those positions?---That's correct.

And the same would apply - is Mr Pearce still there in central?---Pearce? No, he isn't.

Okay, and Mr Rolliston, Mr Heneghan, Mr Childs, are they there?---They're not employed at the City. No.

**** WILLIAM WHALLEY XX MR JOHNSON

So all of those positions after transition were filled by other people, correct?
---Yes.

Yes?---Yes.

And in terms of this structure that you've got here, is that still essentially the structure you have for the irrigation section now?---Yes.

Right. Thank you. So when one of these positions becomes vacant you advertise to try and fill that position?---Yes. Correct.

Thank you. Just as a matter of course, is it unusual in your experience for employees to be employed within a particular job, but not necessarily have all the requirements at the time that you put that person into a job?---Yes.

Do you know an employee by the name of Barry Coo?---Yes I do. He's currently employed at the City.

And is it not true he's employed as a leading hand?---Current - yes, that's correct.

And at the point of employment one of the criteria was to have a HR licence. Is that correct?---That is correct.

And in fact the City enabled him to get that after he was appointed to the job?---It was - yes, that is correct.

Thank you. I have no further questions.

THE COMMISSIONER: Any re-examination, Mr Taylor?

**** WILLIAM WHALLEY XX MR JOHNSON

<RE-EXAMINATION BY MR TAYLOR [11.39AM]

MR TAYLOR: Thank you, Commissioner.

Mr Whalley, just while we've got you on tab 16, the document that you produced, you were asked whether everybody under your command, as it were, was classified as 4A under the old structure and I believe you said, "Yes". However there's a number of employees under this structure, if you can see it also says the number 3, number 5, number 4A. Is that actually correct or were there other employees that were classified as lower than 4A who were irrigation fitters?---I don't believe there is any irrigation fitters on this sheet less than 4A.

Can I ask then if a person left the position as an irrigation fitter and they were 4A, am I understanding from this table that the union showed you under - behind tab 2, is that 4A equates to around B2? So if somebody left and they were classified B2 and then someone presented to the City with no experience, would that person be presented to the City with no experience automatically be put into B2?---No.

Where would they be put?---Well the new structure - and I can't compare the new structure with the previous structure - was that there was room for broad banding, I suppose is the word, or movement - - -

Yes?---- - - across levels A - B were gelled together - - -

Yes?---- - - to assist in the employment of staff in the appropriate manner based on their experience and knowledge.

What was the starting point for a new staff with no experience?---Level A2.

Yes, okay?---General hand.

**** WILLIAM WHALLEY RXN MR TAYLOR

All right. We've heard a little bit - a little bit has been made by the union of this point about, sort of, the difference between classifying jobs and classifying a position. I just wanted to point out this document here - if you go to page 48 of the document behind tab 2. So if you look at 5.2.2 which is halfway down the page. I'll just read it out to you, sir:

An employee has to apply for a re-classification on the basis of meeting the requirements of the higher level and this re-classification is approved by the PEAT.

At 5.3:

It is envisaged that 5.2.2 will only apply to level A employees meeting the requirements for level B.

Now that does - I mean, that really - the approach then is that you look at the individual, isn't it?---That's correct.

Yes. You look at the individual and you see what skills and attributes that individual has got?---That's correct.

And from there management makes a determination as to whether they fit into B1, for instance?---Correct.

And all the requirements of B1 need to be met?---Correct.

And it wouldn't matter whether a previous incumbent, say somebody who had a lot of experience and was classified as 4A or B2, or whatever it may be, it wouldn't matter that that left person had left and that a replacement was coming in and they were put at A2 or A3, would it?---Not at all.

**** WILLIAM WHALLEY RXN MR TAYLOR

Not at all.

I have no further questions, Commissioner.

THE COMMISSIONER: Thank you for your evidence. You can step down and are excused.

<THE WITNESS WITHDREW [11.43AM]

MR TAYLOR: Commissioner, Anna Gillespie is the next witness.

<ANNA-MARIE GILLESPIE, AFFIRMED [11.44AM]
<EXAMINATION-IN-CHIEF BY MR TAYLOR [11.45AM]

MR TAYLOR: Miss Gillespie, do you recognise the document that the Madam Associate has provided?---Yes.

What is that document?---That's the statement that I've provided.

And do you affirm that its contents are true and correct?---Yes.

Are you able to tell the Commissioner a little bit about your current role and your previous role at the Commission - sorry, at the City. Sorry?---The City. I've been seconded to be the project manager of OHS for a period of 12 months, and prior to that for eight or nine years I was a coordinator of HR.

Excellent. Are you able to turn to paragraph 10 of your statement?---Yes.

It says:

My understanding from the negotiations was that the level A classification was for the unskilled infrastructure and maintenance employees.

Does that include anybody else?---Infrastructure and maintenance is parks maintenance, engineering maintenance and building maintenance.

All right. Thank you. And where was Mr Ebbett under that?---At the time I don't think Mr Ebbett was working at the City but I think Mr Ebbett is a parks maintenance employee from memory.

No further questions?---Thanks.

THE COMMISSIONER: We'll mark the witness statement of Anne-Marie Gillespie as exhibit R6.

**** ANNA-MARIE GILLESPIE XN MR TAYLOR

EXHIBIT #R6 WITNESS STATEMENT OF ANNE-MARIE GILLESPIE

THE COMMISSIONER: Any cross-examination?

<CROSS-EXAMINATION BY MR JOHNSON [11.47AM]

MR JOHNSON: Thank you Commissioner.

Miss Gillespie, do you have the respondent's exhibit book in front of you?---Yes. My statement?

Do you have a folder there as well?---Yes I do.

If I can just turn to your statement first. You say at point 11 in your statement that an employee could progress through the A classification. I presume you're referring to the A classification in the 2009 document. Is that correct?---What, the A classification as it was?

Yes, in your statement which document were you referring to there? The 2009 and 2011 documents or the 2012 document?---I think I was referring at that particular point to 2009.

Yes?---When we developed the classification structure.

And in fact if you look at Commission records I think the initial document that was registered in the Commission didn't have the transition and classification structure. It wasn't until 2011 that was formally registered. Is that correct?---Yes. There was an issue previously at the Commission where the classification structure wasn't - it was attached but the Commission withdrew it because it was commercial in confidence. So it wasn't actually attached but it was registered by the Commission.

**** ANNA-MARIE GILLESPIE XX MR JOHNSON

Right. Yes, correct. So it doesn't show, but in 2011 that document is the one that was negotiated in 2009?---Mm'hm.

So, Miss Gillespie, you were involved in the negotiations from 2008 - - -?---Yes.

- - - through to 2012?---Yes.

So you've been with all of the negotiations, so are you deeply familiar with the content of it? You're deeply familiar with most of the grumbles that the union put forward and the employee bargaining representatives as well?---Correct.

Just in relation to the document which is referred to in the respondent's folder. It's at exhibit - I'm sorry, Commissioner, exhibit R2, tab 2, which evidence has already been given that that is the correct classification document attached.

Can you locate anywhere in that document where it talks about classifying the persons rather than the jobs?---Sorry, what was that again, Mr Johnson?

I'll just go back. Within that classification document developed by the consultants that was subject to negotiation between the employee union bargaining representatives and the council?---Mm'hm.

Within that document can you see - could you find anywhere in that document where it talks about classifying persons rather than jobs?---Is it page 47, three, the transition arrangements to the new classification structure?

Okay. Yes, so page 47 talks about the transitional arrangements, correct. So that transitional arrangement - and you were involved in the PEAT?---The - - -

The PEAT was - - -?---- - - (indistinct) PEAT. Yes.

**** ANNA-MARIE GILLESPIE XX MR JOHNSON

- - - set up to review specifically any grievances that employees had with respect to the transitional arrangements, correct?---Yes.

So then you go on to the next page. It talks about the procedure for them to deal with that. So we're clearly talking about what happened with people coming from the Municipal Employees Western Australia Award 1999 into this new 2009 Wanneroo document?---Mm'hm.

Evidence has been led about - and put at five with regard to movement through and across the classification levels. If I can take you down to that?---Sorry, is that on page 48 and 45?

Sorry. Yes, sorry Miss Gillespie. On page 48?---Yes.

So at 5.1 it talks about how an employee moves within a classification. Is it your understanding that that addresses what happens once a person - sorry, once the position the person has been allocated under this structure, how they would move within that classification level. That's the purpose of that clause, isn't it?---Sorry just - - -

So just looking at 5.1?---Yes.

At subclause 5.1 that's talking to incremental movements once the level is established?---My understanding is that that is - this is a transitional arrangement. So moving through and across classification levels.

Right?---5.1.

Yes, and then it goes down and it talks about at two that - and 5.2 and 5.3 that to actually go from one level to another you have to satisfy a number of criteria, and they are that the position is advertised and the person be selected on merit. Correct? That's right?---Yes.

**** ANNA-MARIE GILLESPIE XX MR JOHNSON

And it also goes on to say an employee has to apply for re-classification on the basis of meeting the requirements of the higher level. Correct?---Sorry, run that by me again?

5.2.2 - - -?---5.2.2.

- - - talks about:

An employee has to apply for a reclassification on the basis of meeting the requirements of the higher level and this reclassification is approved by the PEAT.

?---Yes.

Now all of this here that's described here, that was set up for the transitional process. Correct?---Correct.

Okay, so once those positions were bedded down in the new structure, we don't go back through that structure, do we? Once those positions have been allocated, determined, there's no opportunity to go back again unless there is a dispute settlement procedure and we end up coming here. Correct?---So you say if somebody wanted to reclassify a position they'd have to go through that process. So if a - once again, if it was a level AB and they thought that it had a higher level and it should be a level C, they'd have to go through that process to get to the level C.

And you're very familiar with industrial agreements, correct?---Mm'hm.

So once the council - there's evidence been given here, Mr Whalley gave evidence that he determined - he gave evidence regarding a flow chart which is actually contained in this exhibit book, and it's contained at number 16. And he confirmed that that was a correct flowchart with respect to the parks department?---I couldn't say that but if Mr Whalley said that, then.

**** ANNA-MARIE GILLESPIE XX MR JOHNSON

Right. So he actually - and that one appears to have been done around about - and his evidence was about the time of the transition. So it said, "Well, here we are" and in the irrigation area it talks about a whole lot of level 4A positions and they've come across. And based on what this document provides, the transitional document, the positions came across at a minimum of level B2. That's already in the evidence. That's what the transitional document says. Do you want me to take you to that page?---Yes please.

Yes? So just go back. You'll see level 4A and it's on page 46 in the light green colour code, and there you have it, "Level 4A, waste construction maintenance / parks"?---Yes.

"Level B2"?---Yes.

So that's where the irrigation fitters went?---Right.

Now for that to change in terms of a later structure - not that Mr Whalley gave any evidence that there was any structural change - the council would have needed to follow the consultation provisions of the agreement, at the very least with the employees, to indicate that they were structurally changing those positions. Is that correct?---My understanding of the page 46, the transition to a new classification structure, was the current level. So if it was the level 4 - 4A has gone across at that point in time, there was no disadvantage to an employee. So if they were already a level 4A in waste, that they would go across to a level B2 in the new structure because there was no disadvantage to that employee on salaries. The new classification structure was developed, taking into consideration the skills and experience and qualification of the positions, which was done by the employees. And under that arrangement a irrigation fitter or a general hand was in the level AB.

**** ANNA-MARIE GILLESPIE XX MR JOHNSON

It doesn't show that anywhere within this document. All it talks about is - and also the organisational flowchart that - well, the flowchart doesn't actually have anything to that extent other than describing that prior to transition they were 4A?---Can I suggest, Mr Johnson, that at point 1 it's got, "Transition to the new" - "The transition of - - -

Correct. Yes?---- - - an operational employee from current level to proposed level and wages within the new classification structure is as follows".

Well, that's right. It's the transitional structure so it was - - -?---Yes.

- - - dealing with it at that point in time?---Yes.

And then once they're bedded down, those positions - again bearing in mind that the classification descriptions here - - -?---Yes.

- - - are designed to describe the jobs?---Correct.

That's what this says. Not the individuals, but the jobs. Did you have any involvement in the advertisement for Mr Ebbett's position at all?---When was the job advertised?

Well based on the material that the respondent has tabled, if I take you - it says, "February 2012". Did you have any involvement? It's at tab 8?---February 2012? I would've been the coordinator of HR at that point in time and responsible for the recruitment area, but I wouldn't have had specific involvement in the production of the ad.

So you didn't sign off on this job advertisement?---Well I can't recall.

**** ANNA-MARIE GILLESPIE XX MR JOHNSON

Okay?---I can't recall.

All right. So you wouldn't be able to advise the Commission why it was advertised as an irrigation fitter's position rather than general hand or unskilled labourer position?---I couldn't, no.

All right. Thank you. If I can take you to tab 9. Did you have any involvement in the drawing up of the position identification document?---Again that would've been - I would've been the coordinator of that area at that point in time. But - and I suppose developing the key accountabilities for all positions at certain levels. But not, I don't believe, in relation to this particular PD.

All right. So you can't really assist the Commission in advising how that and why that position description was put together in that way?---Other than it looks like a standard template. A standard template that HR has provided, and the selection criteria has obviously been inputted by somebody.

So you didn't have oversight of this or any analysis of this PD before it was established within council?---Not this particular position, no. The template, yes.

Is it unusual - if I can just keep you on that page?---Yes.

Is it unusual to talk about multiple positions within a particular position description or job area?---Yes.

If I can just take you to tab number 6. It's a colour-coded document. Were you present at that meeting when that was tabled?---Yes.

And within that broad yellow area, is it your recollection that it was intended by all the parties, certainly after agitation by the union and employees, that within that level there would be flexibility to be able to move through those levels anywhere within that structure?---Between A and B?

**** ANNA-MARIE GILLESPIE XX MR JOHNSON

Yes?---Yes.

Yes, all right?---But this wasn't the final document.

No, no?---Okay.

Not at all. Not at all. In fact if I can take you to the final document for 2012, which is quite relevant to this structure, to this application, that's at tab 4. And that takes on a fair degree of significance for this application in terms of what Mr Ebbett is seeking to achieve. If I can take you to firstly to level A which is on page 54, starting at appendix 2. Mr Ebbett has given evidence that when he commenced the job, within 10 days he was working unsupervised. Would you find people on level A working under - unsupervised or with minimal supervision?---To be honest, Mr Johnson, I don't have knowledge of what the level As on the ground actually do. My involvement was the development of the structure.

All right. So in effect any questions about what Mr Ebbett's actual job involves, you're not in a position to answer?---I don't remember Mr Ebbett or his role, so I couldn't answer.

All right. Thank you very much. I have no further questions.

THE COMMISSIONER: Any re-examination, Mr Taylor?

<RE-EXAMINATION BY MR TAYLOR [12.02PM]

MR TAYLOR: Thank you, Commissioner.

Just while I've got you on that document, because it's convenient, Madam. "Level B1. One year recognised relevant industry experience" is what it says. I'm on page 55?---Mm'hm.

**** ANNA-MARIE GILLESPIE RXN MR TAYLOR

That necessitates, does it not, an assessment of the individual?---The individual need - yes. It's because it's relevant to that individual, whether they've got the industry experience or not.

That's right. So while it is the case that the job is in a sense classified, it's more about an assessment of the individual and what they can do, whether they could get into B1, isn't it, under this agreement?---Yes. The purpose of the structure - of the classification structure was to align positions on a new classification structure to allow - to give employees an opportunity to progress, develop their skills and be recognised through length of service to progress through. So it was that it - the position is classified and then that person is classified within that range of that level. So there needs to be a personal review of those people's skills and ability as to whether they should be classified in the classification structure.

So the position is really A / B, isn't it?---Correct.

And then within A / B you look at the individual and see where they fit in that, and how they develop through that over time?---Correct.

It provides incentive, does it not, for employees to want to join the City of Wanneroo to be able to work at a place where they can start with limited experience and work hard and progress through level A / B. Is that - would you agree with that?---That was the intention, yes.

Excellent. I might just take you back now to - I think it was document 2 that you spent some time on with Andrew Johnson. If I could take you to page 46 of the appendix? It's the coloured document?---Mm'hm.

So I'm just reading at point 1. This document contemplates, does it not, that - it says, "Level 3 parks" so that presumably is a reference to the old award?
---Mm'hm.

**** ANNA-MARIE GILLESPIE RXN MR TAYLOR

And that carries over to A2. Would that apply to an irrigation fitter? Are irrigation fitters in the parks division?---I'm not - at the time when we developed the classification structure in 2009 my understanding was that the current irrigation fitters were classified at 4A.

Yes?---So under the proposed transition they would come across as a minimum B2 at the transition of the classification structure, so that no current employee was disadvantaged.

That was the employees that were getting transitioned. But what about new employees?---New employees would come into the level A / B classification.

Right, and what would be the starting point of that classification?---It would be the lower of the parks, so it would be level A2, I believe.

A2. And then what would be the process of somebody progressing through that A / B position through the A / B increments? How would that work?---It is on obtaining the skills, experience, qualifications, attributes for the next level, satisfactory performance and length of service. So every 12 months somebody would be considered for an increment providing they had the qualifications, skills and attributes.

Right?---So they could progress to the next level.

So for instance say you start at A2. How would you increment into or how would you progress into A3?---You would need to look at what the characteristics for A3 are.

Right?---And make sure that the employee met those characteristics, reviewed their performance, make sure they had a satisfactory performance.

**** ANNA-MARIE GILLESPIE RXN MR TAYLOR

Yes?---And that they were eligible for an increment. And then you could progress to an A2[sic].

So there's no real list of characteristics differing between A, A2, A3 and A4. There are listed characteristics for B1?---Yes.

Would an employee need to satisfy all of those criteria to get into B1?---Yes. So if there's no characteristics between - difference between A2, A3 and four, it would be satisfactory performance and length of service.

Yes?---But there is differences between A4 and B1. So the employee would need to meet all the knowledge, skills, attributes of a B1, plus length of service plus satisfactory performance, to progress to a B1. It wasn't - it wouldn't be automatic, and it's not something that we would expect every employee to progress every year.

Yes, okay. All right. I might take you to the next page then, Miss Gillespie, 3.3. That's talking about transitional arrangements to the new classification schedule, so that was in 2009 it appears?---For existing employees, yes.

And it's talking about your existing employees that were categorised as 4A that were moving over?---Mm'hm.

But it's also talking generally about those in the parks and gardens crew and how they would progress over. And it says:

Meeting all competency requirements, accreditations of the new classification level. Meeting all the experiential requirements of the of the new classification level. Satisfactory performance -

**** ANNA-MARIE GILLESPIE RXN MR TAYLOR

And so on?---Mm'hm.

Now if you go to page 48, 5.2.2, again talking about an employee has to apply for a re-classification:

It is envisaged that 5.2.2 will only apply to level A employees meeting the requirements for level B.

Now this understanding of how the increments within the A / B position worked, that you had to - any employee transitioning over into, whether B1 or B2 as it might be, needed to have all the skills and attributes. Did that understanding continue throughout the life of this classification structure, so from 2009, 2011 to 2012, as the three agreements came in?---Sorry, can you run that - I just got lost halfway through.

Yes. Sure?---Can you just run that through for me again?

I suppose what I'm getting at is that there was a pattern, and the pattern was established right at the beginning, that you needed all the attributes to get into B1 or B2?---Mm'hm.

And that that pattern continued and was applied equally then to the 2011 agreement and then to the 2012 agreement; would you agree with that?---Yes.

Yes. No further questions.

THE COMMISSIONER: Thank you for your evidence. You can step down and are excused?---Thank you.

<THE WITNESS WITHDREW [12.09PM]

THE COMMISSIONER: Before you call Mr Singh I think we might just have a five minute break, Mr Taylor, and then we'll resume.

MR TAYLOR: Thank you Commissioner.

<SHORT ADJOURNMENT [12.09PM]
<RESUMED [12.17PM]

THE COMMISSIONER: Yes, carry on, Mr Taylor.

MR TAYLOR: Thank you, Commissioner. I call Harminder Singh.

<HARMINDER SINGH, AFFIRMED [12.18PM]
<EXAMINATION-IN-CHIEF BY MR TAYLOR [12.18PM]

MR TAYLOR: Mr Singh, do you recognise the document that you have in front of you?---Yes.

What is it, sir?---It is my witness statement.

Do you affirm that its contents are true and correct?---Yes.

So I just want to clarify just one matter in particular about your statement. Are you able to go to paragraph 8? There appears to be an error. It says, "I refer to page 86 of document X". What document were you referring to there, sir?---That is the document 1, I think it is. There is just a document - page 35 or 36 in that one which describes a table of various levels with salaries.

Is that page 35 or 36 of the appendix or page 35 or 36 of the document itself? If you just flip to the document itself, it will tell you?---It is of the appendix, page 35 of the appendix.

No further questions, Commissioner.

THE COMMISSIONER: Yes, thank you. We'll mark the witness statement of Harminder Singh as exhibit R7.

EXHIBIT #R7 WITNESS STATEMENT OF HARMINDER SINGH

THE COMMISSIONER: Any cross-examination, Mr Johnson?

MR JOHNSON: Thank you, Commissioner.

<CROSS-EXAMINATION BY MR JOHNSON [12.20PM]

**** HARMINDER SINGH XXN MR JOHNSON

MR JOHNSON: Mr Singh, in your statement, you indicated that you were involved in negotiations for the 2009 document. Were you also involved in the negotiations for the 211 and 212 document?---That's true.

My recollection is that you were in attendance at the vast majority of those negotiations, so you were quite familiar with the documents being tabled?---That's right.

If I can just take you - do you have the respondent's exhibit folder there?---Yes.

If I can take you to, firstly, tab 1, which is the 2009 document, with - so it's marked out in - you just spoke to it in examination. Can you identify anywhere in that document where it actually spells out absolutely clearly that a person must have all the competency requirements to be able to enter into the B1 level?
---Without going through the whole document in detail, I won't be able to find out, but generally the intention was that the person needs to meet the requirements of the position to be assigned a level.

But not necessarily all the requirements?---Depends on the requirements. If something is of a nature which can be easily attainable, such as basic traffic management, that can be discussed and the position can be offered at the level that - the prospective employee need to obtain that certificate of training.

So if a requirement of a position for a level said that it was a requirement you had a C-class licence, would that be, in your opinion, a critical requirement to be able to obtain that position to attain that classification level?---Yes.

To operate a variety of hand tools?---Again, this document refers to the requirements of the position.

Yes, there's no argument there?---This document is across a variety of positions: parks (indistinct) and construction and maintenance, so it's relevant to the job. So the hand tools could be different for different areas.

**** HARMINDER SINGH XXN MR JOHNSON

So in fact - I mean, in your statement, you actually say at number 18, "If an employee had not achieved a required skill set for B1, for example the required licence, they could not progress into B1". So in fact your evidence is that there are certain things that are necessary there but not necessarily all of them?---For the purpose of the positions, it will be all, as I said before. If it is something - as I said, basic traffic management or a licence which is easily attainable at short duration, that can be considered to meet the requirements of that level.

Well, if the person had - say for example, if we look at the criteria in the 209 document, then we go to the 212 document, which is going to be more relevant here - have you read the 212 document?---Yes, I was - - -

Can you identify anywhere in that document with the broaded descriptions where it says the person must have all of those qualifications?---Again, I would need to read the whole document to pinpoint that one.

So at this point in time, you can't actually say that: that to classify that job, that job requires the person to meet all the requirements of that job?---But as a practice with the city of Wanneroo, these are the requirement classifications, job requirements, and they must - we need to report these to - - -

Do you have any direct input into the position descriptions for the jobs?---Yes, I do sign position descriptions. As a manager of the unit, I sign them. I authorise them, yes.

You review them?---Yes.

So are you familiar with the position description for Mr Ebbett's position?---I'd need to see that again, but I know the position description, all position descriptions in my unit authorised by me.

**** HARMINDER SINGH XXN MR JOHNSON

So did you read the position description for Mr Ebbett's position?---Can't confirm at the moment.

Did you read the job advertisement for Mr Ebbett's position; did you have any input into it or read it or were you aware of it?---I can't answer specifically whether I read it or not at the time. It's been over two years, close to two years.

I just would like you to look at an exhibit tendered by the respondent and I'd just like you to look specifically - this exhibit is identified as exhibit R1. I'd like you to look at the comments made by consultant or the person who is the identified author of the document, a Mr Peter Ken. I'd like you to just read onto the record his statements identified at number 9, number 11 and number 12. So just those specific statements by Mr Ken. If you can read it onto the record, please?
---(indistinct)

Yes, please. Number 9, number 11 - - -

MR TAYLOR: Surely Mr Kevin's evidence speaks for itself, Commissioner. We can't get Mr Singh to be giving evidence that Mr Kent has given.

THE COMMISSIONER: Well, he's not. He's just reading out the document Mr Johnson is asking him to read out. Mr Johnson, I assume you want to ask Mr Singh some questions about Mr Kent's evidence?

MR JOHNSON: Yes. More to the extent of the statements made by Mr Kent, given that it's been accepted as an evidentiary document.

THE COMMISSIONER: All right. I think the proper way to do it - sit down gentlemen - is to provide Mr Singh the opportunity to read what you believe are the relevant parts of Mr Kent's evidence and once he's had an opportunity to read those and consider them, you can then ask him questions about those elements of Mr Kent's evidence.

**** HARMINDER SINGH XXN MR JOHNSON

MR JOHNSON: So, Mr Singh, just going back to the question, could you please read statement number 9, number 11 and number 12 of Mr Kent's evidence. Would you agree with the sentiments expressed by Mr Kent?---Not in its entirety.

You, as one of the key persons authorised by the city, were involved in the appointment of Mr Kent and his partner, weren't you; so you had a say in the appointment of Mr Kent and his partner and acumen as consultants to the city for this document. Is that correct?---No, I wasn't involved in authorising his appointment. He was appointed by a different service unit of the city to prepare the (indistinct) instruction, and I was involved in the development - of later stages of development and (indistinct)

So to the extent that Mr Kent has expressed in that statement that there were very few level A's there - that's a question of fact though, isn't it?---That's what I don't agree with the statement.

Well, how many level A's were there at the time that the transition occurred, can you tell the Commission that?---Not without looking at my files or looking at the records. At that time - 2009 was the first time when level A's were created. Before that was level 3, 4, 5's and the previous structure.

So you can't really assist the Commission in saying how many level A's there were or weren't?---Not without looking at my records.

Now, if you look at Mr Kent's statements in number 11, number 12, he doesn't say anywhere there that one of the requirements is the positions require all of the requirements for that position be allocated at B1 or B2, does he?---What he's saying here - the qualification and experience are the most important factors, and no doubt they are the most important factors, but there are other requirements to go with it.

**** HARMINDER SINGH XXN MR JOHNSON

But he doesn't say that there must be all of the qualifications and requirements met; he identifies some aspects of it?---That's what his statement is.

Mr Singh, you're familiar with broad banded classification description structures in enterprise agreements, aren't you, so you're familiar with what's being done here, you're familiar with the inside staff agreement as well or do you not have any involvement?---No, I don't have much involvement with that one.

So you're familiar with the concept though, and in terms of practical industrial relations, have you ever come across any documents which say that, in a broad banded description, a person must have every single qualification and criteria to get that classification?---I don't have the exposure to too many documents myself. It's mainly the City of Wanneroo's enterprise agreement or UCA and this one, so without looking at documents, I can't say yes or no.

So if I take you back to the respondent's exhibit and we go to the 2012 document - and that's at tab number 4 - I'll take you to, in tab number 4 - are you familiar with that document?---Yes.

In fact, that document - have you had a look to see anywhere in there where it says, "In the classification descriptions, the person must have all of these criteria to get that classification"?---I'm familiar with the document, but having to find that one, I need to read the whole document to pinpoint that if it isn't there. I'm not familiar with the document.

So if I take you to page 55, it describes at level B1, "general hand" and - we'll start with B1. It talks about "interest and aptitude, and working knowledge of practical application". It then goes on to say that, "To the extent that it applies at qualifications and licence, a C-manual and/or MO is required for the job", so if a person had a C-class manual licence, they'd tick off - that's one criteria they're needing there. Correct?---It will depend upon if the person is required to operate a - - -

**** HARMINDER SINGH XXN MR JOHNSON

Yes, as part of that job?--- - - - as required for the job, yes.

So are you familiar that the reticulation fitters are required to operate a - have a C-class vehicle to operate - to get to and from the job?---That's right.

Are you familiar with Mr Ebbett's job specifically?---Yes, he does irrigation maintenance.

He does that over - are you familiar - there was evidence given earlier that it's over I think approximately 20-odd parks. Are you familiar with his job to that extent?---That's the operational matter. I don't - I look at work at an operational level so I can't answer that question.

So in terms of the plant operation, evidence was given that there was a variety of selected hand tools and minor plant use to operate in that job. So to the extent we're reading that, that fits with that criteria, doesn't it, so pulp finders, pipe locators, those types of things, ditch diggers; they would fit within that category of small machinery, wouldn't they - cutters, saws?---I can't confirm that because, as I said, I don't supervise operational work directly. So I'm - - -

So to that extent, you can't really talk about the attributes that are required in the job that Mr Ebbett is currently - - -?---That's right.

Are you aware - I mean, based on the statement that - to hold a specific classification - this has been the thrust of the respondent's argument: that you must meet all the criteria to get a classification. So if you get appointed to do higher duties, then that follows, doesn't it, that to do those higher duties, you must be able to do all the things on that line of argument?---Not necessarily. The reason for that is - high duties are given to existing employees for two reasons: one is obviously to expose them to the responsibilities of those positions and develop them into that position. So we give opportunities to our own staff to act at higher level positions. They may not be able to - they may not be able to do a hundred per cent of the position but we still pay them the next step so they are able to develop that - into their position.

**** HARMINDER SINGH XXN MR JOHNSON

So your evidence is that, as it suits the city, you can vary these criteria depending on where the person is appointed to?---Look, suitability point of view - that's your view but obviously we look at both ways. There is an operational requirement to fill that position and at the same time, this gives the opportunity for our people to develop into senior positions.

But the fact of the matter is that your evidence is that, for example, in Mr Ebbett's case, he would work for two months at a level D and was paid at level D and he certainly didn't meet all the criteria for a level D, yet the city paid him at that level?---That's true, but that's an only ad hoc temporary arrangement, but for permanents, requirements need to be met to be appointed permanently for that level.

Where is that requirement expressed in the 2012 document that every criteria must be met; can you show the Commission where it is?---As I said before, I need to read the whole document to pinpoint that one.

Well, you gave a witness statement saying that you were familiar with it?---Being - familiarity and remembering every page of what's in there is two different things.

Well, the obligation is on you, Mr Singh, to be familiar. So you can't identify in that document one way or the other whether a person needs to meet all the criteria to meet that classification?---Certainly, I can confirm that as manager of - and those recommendations for staff to be appointed, we look at all the criteria to be met.

Did you confirm an appointment for a Mr Barry Khoo to a leading hand position?
---I can't confirm. As I said, there are a number of appointments made throughout the unit. It's quite large (indistinct)

**** HARMINDER SINGH XXN MR JOHNSON

So you can't confirm whether you dealt with his appointment to a leading hand position?---Again, as I said, the number of appointments made throughout the year and potentially - again, I can't confirm one way or the other.

So you don't know the basis on how he's appointed or what qualifications he had at the time, getting that position?---As I said - look, I can't confirm Mr Khoo or any other appointment without looking at - unless I've dealt something more recently which I may remember.

No further questions, Commissioner.

THE COMMISSIONER: Any re-examination, Mr Taylor?

<RE-EXAMINATION BY MR TAYLOR [12.38PM]

MR TAYLOR: Thank you, Commissioner. Mr Singh, document 4 - this is the 2012 agreement, page 55. Length of experience that's required to get into B1, it says one year's recognised industry experience. Is that required of somebody to get into the B1 category?---Yes.

Is three months good enough?---No, one year is - at least one year.

Now, I might take you also - if you go on that document - page 50 of the body of the document - okay. 43.3, "Following a satisfactory performance review and obtaining the relevant skills outlined in the classification structure, an employee will be eligible for an annual increment". Does that mean all the experience?
---Yes, experience and the requirements of the position as defined on page 55 or similar documents in there. They need to be met before an employee is recommended for increment.

No further questions, Commissioner.

THE COMMISSIONER: Thank you for your evidence, Mr Singh. You can step down and are excused.

<THE WITNESS WITHDREW [12.40PM]

THE COMMISSIONER: Now, gentlemen, in terms of submissions, are you happy to go ahead now or would you like to go ahead now or would you like a break? Do you want to do it after lunch? What's your situation?

MR TAYLOR: I was chatting to Mr Johnson in the break, Commissioner, and what Mr Johnson propose jointly is that closing submissions be given in writing given, I suppose, the events of this morning and the Commission's view on its jurisdiction and so on.

THE COMMISSIONER: Mr Johnson, you're of the same view?

MR JOHNSON: Yes, Commissioner, in light of the, in effect, de facto variation to the application on the Commission's own motion, I think it would be appropriate to give the parties the opportunity to order transcript and make proper detailed submissions on the evidence that's been given.

THE COMMISSIONER: All right. I'm happy to allow that. The transcript, in the usual course of events, will be available to the parties within three or four days' time. After that, Mr Taylor, assuming we're starting with yourself then, in the normal course, what length of time do you need for your written submissions beyond that?

MR TAYLOR: I would say around the week mark, Commissioner.

THE COMMISSIONER: You, Mr Johnson? Another week after that?

MR JOHNSON: I think that's reasonable, Commissioner, after the transcript is made available.

THE COMMISSIONER: Yes.

MR JOHNSON: Thank you.

THE COMMISSIONER: All right. What I propose then is that we adjourn on this basis: that the respondent's submissions be made available to Mr Johnson and the Commission within two weeks from today and then a further one week after that, the applicant's closing submissions are similarly made. In fairness to Mr Taylor, you can have another three days after those are received from the applicant to put anything in reply. On that basis, we'll adjourn. I'll wait until I've received those submissions obviously and in due course provide you with detailed written reasons for my decision. Thank you for your time and your submissions and the evidence.

<ADJOURNED INDEFINITELY [12.42PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R1 WITNESS STATEMENT OF PETER KENT, DATED 28/01/2914 PN29
EXHIBIT #R2 BUNDLE OF RESPONDENT'S DOCUMENTS PN38
BRETT SHAUN EBBETT, SWORN PN7
EXAMINATION-IN-CHIEF BY MR JOHNSON PN46
EXHIBIT #A1 WITNESS STATEMENT OF BRETT EBBETT PN49
CROSS-EXAMINATION BY MR TAYLOR PN53
RE-EXAMINATION BY MR JOHNSON PN134
THE WITNESS WITHDREW PN183
BRIAN JAMES GEE, AFFIRMED PN207
EXAMINATION-IN-CHIEF BY MR TAYLOR PN207
EXHIBIT #R3 WITNESS STATEMENT OF BRIAN JAMES GEE PN215
CROSS-EXAMINATION BY MR JOHNSON PN217
RE-EXAMINATION BY MR TAYLOR PN293
THE WITNESS WITHDREW PN312
JOHN WATSON, AFFIRMED PN314
EXAMINATION-IN-CHIEF BY MR TAYLOR PN314
EXHIBIT #R4 WITNESS STATEMENT OF JOHN WATSON PN320
CROSS-EXAMINATION BY MR JOHNSON PN321
THE WITNESS WITHDREW PN326
WILLIAM WHALLEY, SWORN PN329
EXAMINATION-IN-CHIEF BY MR TAYLOR PN330
EXHIBIT #R5 WITNESS STATEMENT OF WILLIAM WHALLEY PN339
CROSS-EXAMINATION BY MR JOHNSON PN340
RE-EXAMINATION BY MR TAYLOR PN387
THE WITNESS WITHDREW PN407
ANNA-MARIE GILLESPIE, AFFIRMED PN408
EXAMINATION-IN-CHIEF BY MR TAYLOR PN408
EXHIBIT #R6 WITNESS STATEMENT OF ANNE-MARIE GILLESPIE PN419
CROSS-EXAMINATION BY MR JOHNSON PN420
RE-EXAMINATION BY MR TAYLOR PN485
THE WITNESS WITHDREW PN519
HARMINDER SINGH, AFFIRMED PN523
EXAMINATION-IN-CHIEF BY MR TAYLOR PN523
EXHIBIT #R7 WITNESS STATEMENT OF HARMINDER SINGH PN530
CROSS-EXAMINATION BY MR JOHNSON PN532
RE-EXAMINATION BY MR TAYLOR PN584
THE WITNESS WITHDREW PN589