C2014/6672, Transcript of Proceedings [2015] FWCTrans 397 (6 July 2015)

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PN1

THE COMMISSIONER: Thank you. I will take appearances.

PN2

MR M PRICE: Matthew Price, CPSU.

PN3

THE COMMISSIONER: Thank you.

PN4

MR W WYATT: Wyatt, W, from CPSU.

PN5

THE COMMISSIONER: Thank you, Mr Wyatt.

PN6

MR P CLARKE: Clarke, P, from the Department of Health and Human Services.

PN7

MR N RICHMOND: Nick Richmond from the Department of Health and Human Services.

PN8

THE COMMISSIONER: Thank you, Mr Richmond. Mr Price - sorry, just before we launch into things, I understand that one of your witnesses is unwell and unable to attend, and the Department had intended to cross-examine that witness. That was Ms Hubbard, is that right, which creates a bit of a problem for you. Is it possible for Ms Hubbard to appear by phone? Sorry, my question to the Department too is whether that would cause a problem or whether you would be happy to cross-examine by phone?

PN9

MR PRICE: I don’t know that it is. I certainly hadn’t prepared for her to do that. I think she has quite a serious medical condition at the moment.

PN10

THE COMMISSIONER: Okay, thank you. We will have to do without her then.

PN11

MR PRICE: Okay.

PN12

THE COMMISSIONER: Unless - - -

PN13

MR CLARKE: Commissioner, I mean I can get to this in our submissions, but I appreciate what Mr Price is saying that the witness has a serious illness. The witness statement will be unsworn.

PN14

THE COMMISSIONER: Yes.

PN15

MR CLARKE: And we won’t have a chance to have it cross-examined, so just to make those notes, Commissioner, thank you.

PN16

THE COMMISSIONER: Yes, okay. The witnesses who are appearing are both in the court room. Does anyone have objection to them remaining during the hearing – during the other evidence? In particular the questions directed more to you, Mr Price, whether you object to Mr O’Kelly being in the court room while Ms - is it Haouchar?

PN17

MR PRICE: It is Ms Haouchar. No, I don’t object to him being here.

PN18

THE COMMISSIONER: Okay, the witnesses can stay.

PN19

MR CLARKE: Commissioner, just as a matter of process as well, I have some documents which are essentially the submissions of the Department and the witness statement of Mr O’Kelly to put to the witness, and I have some common folders if that’s of any value.

PN20

THE COMMISSIONER: Yes, certainly.

PN21

MR CLARKE: Okay.

PN22

THE COMMISSIONER: Thank you.

PN23

MR CLARKE: I understand you’ve got your tabulated version as well. Thank you, Commissioner.

PN24

THE COMMISSIONER: Thank you. Mr Price?

PN25

MR PRICE: Thank you, Commissioner. I would like to make a brief opening statement and then submit the statement of our other witness, Ms Haouchar, if you’re happy for me to proceed that way?

PN26

THE COMMISSIONER: Yes, certainly.

PN27

MR PRICE: Thank you. So, in your decision issued on 25 March 2015 which is attachment 10 in our submissions, you directed the respondent to “set out in detail the work requirements of the area, how the current arrangement does not support those requirements and how the proposed flexitime arrangement will enable these work requirements to be met.” The respondent subsequently provided a document entitled Rationale for Flexitime Change, which is attachment 5 of our submissions.

PN28

THE COMMISSIONER: Mm-hm.

PN29

MR PRICE: This document describes changes that have occurred to the team in recent years, such as, that there are fewer in-office staff, but does not demonstrate why this means that the existing flexitime arrangements cannot be accommodated. This document also contains a snapshot of 3 days in the Sunshine office, and the witness statement of Ms Haouchar shows that these days are not typical days at the office. The respondent’s primary line of arguments, as set out in their outline of submissions in paragraph 3(a), is that the reduction in staff since the 2012 restructure has meant that absences are harder to cover, but conceded that the patches, as in the amount of work per staff member, will remain the same, so they have not presented any evidence that staff absenteeism has increased, so if the workload per staff member is more or less the same size as it was prior to the restructure, and staff are not taking any more leave per person than they were previously, it is unclear why absences would be more difficult to cover.

PN30

There is nothing in their submissions that explains why operationally one flexiday per month can be accommodated but one per fortnight cannot. The respondent also asserts that the staff have unreasonably withheld agreement to proposed changes. The staff affected by those proposed changes have complied with the direction set out in paragraph 55 of your decision, specifically that “employees who consider they have personal/family circumstances such that the proposed arrangements will create difficulties for them will be required to articulate the difficulties, including what alternative arrangements they have considered and why these are not workable.” They did say through statements that are included in attachment 6 of our submissions and that were also provided to the employer.

PN31

The respondent asserts that despite these submissions that go to personal individual circumstances that they are nonetheless unreasonably withholding agreement. The union rejects this assertion and submits that the applicants have detailed compelling personal and family reasons for their stated positions.

PN32

I’d now like to call our witness, Ms Haouchar, to be sworn in.

<ZEINA HAOUCHAR, SWORN [10.10 AM]

EXAMINATION-IN-CHIEF BY MR PRICE [10.11 AM]

*** ZEINA HAOUCHAR XN MR PRICE

PN33

MR PRICE: Thank you. Ms Haouchar, have you prepared a witness statement in this proceeding dated 9 June 2015?‑‑‑Yes, I have.

PN34

Is that statement true and correct?‑‑‑Yes, sir.

PN35

I’d now like to tender that statement as evidence.

PN36

THE COMMISSIONER: Thank you.

PN37

MR PRICE: Thank you, Commissioner.

PN38

THE COMMISSIONER: I will mark the statement of Zeina Haouchar dated 9 June consisting of 21 paragraphs as exhibit A1.

EXHIBIT #A1 STATEMENT OF ZEINA HAOUCHAR DATED 09/06/2015 CONSISTING OF 21 PARAGRAPHS.

PN39

THE COMMISSIONER: Any examination-in-chief, Mr - - -?

PN40

MR PRICE: No, Commissioner.

PN41

THE COMMISSIONER: Thank you. Mr Clarke?

CROSS-EXAMINATION BY MR CLARKE [10.12 AM]

PN42

MR CLARKE: Thank you, Commissioner. Good morning, Ms Haouchar?‑‑‑Good morning.

PN43

Ms Haouchar, in your statement you state that you use the current flexitime arrangements to work a 9‑day fortnight, is that correct?‑‑‑I was - just to clarify, I’m currently on restricted hours, but prior to that I have been, so yes.

PN44

So prior to that, you essentially used flexitime arrangements - - -?‑‑‑Correct. I’m currently on - - -

PN45

- - - to take a day off a fortnight?‑‑‑Yes.

PN46

That’s correct? Thank you. In your statement you say you used the work hours, and specifically the taking of the day off a fortnight to attend some medical and physiotherapy appointments, and also your osteopath, is that correct?‑‑‑Yes.

*** ZEINA HAOUCHAR XXN MR CLARKE

PN47

Ms Haouchar, can I ask why would you need to have a full day off work a fortnight to attend these appointments? Wouldn’t it be more convenient to be able to leave earlier and commence later be more conducive to attending these appointments?‑‑‑Well, I’m currently on a WorkCover - I’ve got a WorkCover claim that has been proven, so I’m working four days a week.

PN48

Yes?‑‑‑And it does require me to attend at least two to three appointments per week, which are not always feasible after work hours, and they do at times clash with my working arrangements.

PN49

So prior to your WorkCover arrangement, were you using - - ----I was using my flex leave.

PN50

And for the purposes - in that period prior to your WorkCover arrangement, were you attending appointments in that time as well?‑‑‑Using my flex‑time? Yes.

PN51

So I ask the question again, why would you need a full day off work a fortnight to attend those appointments?‑‑‑Well, some of my medical appointments are based in the city, so that will require me at least a three‑hour block to be away from the office. Other appointments sometimes can exceed that period of time.

PN52

Did you - and I’ll come to this later – no, perhaps I’ll come back to that point?‑‑‑Okay.

PN53

Thank you. You also say that you use your flex‑time arrangements to help your 18‑year‑old son with the signing of documents, and to help familiarise himself with various services and systems?‑‑‑Correct.

PN54

And you also transport him to sports and part‑time work. So I say again to you, why would you need a day off a fortnight to be able to do those sort of functions, to transport your son to sports and part‑time work? Wouldn’t again a more flexible arrangement where you can perhaps start later or come in or leave earlier be more conducive or be better for you to attend to those matters?‑‑‑Well, given that I’m a single parent and my son does depend on me - he does not drive - so there are, you know, circumstances where I’m required to be with him, and some appointments can take half a day, a full day, depending on what those activities are. It is not always feasible for me to take a half an hour block or work a half day to attend to those appointments, so in that circumstance I do play an active role with him, and it’s in, your know, our best interest and his best interest that I attend to those appointments and be with him.

*** ZEINA HAOUCHAR XXN MR CLARKE

PN55

I’m presuming that matters such as attending various services and so forth don’t arise that often. If you had a full‑day appointment there are other arrangements you could make, such as use of your recreational leave or your annual leave, to attend a full‑day appointment, would that be correct?‑‑‑We do have that option of utilising it, however, that would mean that I would (indistinct) all those - - -

PN56

Yes. Ms Haouchar, has Mr Price shown you the materials submitted by the Department in this matter?‑‑‑Yes, I have a copy of those.

PN57

In front of you there there’s a folder, and just so we’re working with the same document - there, that white folder?‑‑‑Yes.

PN58

And I’ve given a copy to the Commissioner and also to Mr Price. Can I ask you to turn to tab 5, which is Mr O’Kelly’s statement marked as POK3. Just take your time. Yes?‑‑‑Yes.

PN59

Do you recall receiving an email from Mr O’Kelly on 2 April detailing the proposed flexitime arrangement, and management asking you to submit your individual circumstances?‑‑‑Yes.

PN60

Is that a copy of that email, as far as you’re aware?‑‑‑Yes.

PN61

So would you agree that Mr O’Kelly has provided you and the other housing services officers with sufficient material to understand the reasons why the Department is seeking to change the flexitime arrangement?‑‑‑Yes.

PN62

You would agree with that?‑‑‑Yes.

PN63

Okay. Could you turn to tab 6, which is Mr O’Kelly’s statement marked as number 4? That there, is that a collective response by you and your colleagues to the matters set out by Mr O’Kelly?‑‑‑Yes.

PN64

Are you sure about that? Are you happy with that?‑‑‑I have to just have a quick look over it.

PN65

Yes, take your time. What I’m saying to you, Ms Haouchar, is that there’s a collective response signed by - - -?‑‑‑Yes, that is.

PN66

- - - yourself and your colleagues?‑‑‑ Yes, correct.

*** ZEINA HAOUCHAR XXN MR CLARKE

PN67

On page 5 of your collective response - so this is numerated as page 5, if you go to there - there’s a heading called summing up?‑‑‑Yes.

PN68

The document states there in the first paragraph that the times of 8.45 to 5 pm, ten in contact, is at its optimum. Do you agree with that?‑‑‑Yes.

PN69

This is a document submitted by staff, so you’re agreeing that the busiest times, if you like, are between 8.45 and 5 pm?‑‑‑Correct, that’s our working hours.

PN70

And then you say, at the bottom of that same page, the very last sentence, or last paragraph, it says that “staff are choosing to keep their current flexitime arrangements believing the option of one flexiday a fortnight does not interfere with the daily business needs of the office.” Do you agree with that?‑‑‑Correct.

PN71

Immediately after that collective response, there are a number of individual responses and yours is there as well, and I think - actually yours is the first one immediately after the signed documents, yes? Have you got your response?‑‑‑Yes.

PN72

As you said, that was sent directly to Mr O’Kelly--Correct.

PN73

Did anywhere in that collective response, or indeed in your own response, did you at any time propose an alternative flexitime arrangement for management to consider? That’s a different one to what was the proposed management flexitime arrangement, and that was put to you as part of those materials that you received on 2 April?‑‑‑Not in my current response, but my understanding was that there was an alternate proposal put forward which was - - -

PN74

But in those documents you’ve got, no?‑‑‑-Not in these particular documents, no.

PN75

So, not in the initial response, and not in your own response, you never proposed any alternative arrangements?‑‑‑My understanding is that there were discussions that were held and it was put forward.

PN76

But not at that first instance?‑‑‑Correct, not in this particular document.

*** ZEINA HAOUCHAR XXN MR CLARKE

PN77

So you didn’t put back to Mr O’Kelly any alternative to a 9‑day fortnight arrangement, effectively, a day off a fortnight?‑‑‑No, as I said, my understanding was that alternative proposal was put forward prior and that was not accepted, so we didn’t really see the need to reiterate that again.

PN78

In your own statement there, Ms Haouchar - I don’t know if you’ve got a copy of your own statement, if I can refer you back to that, at paragraph 16(a)?‑‑‑Yes.

PN79

You state that on occasion you have excess workload, for example, between September 2014 and December 2014, that’s correct?‑‑‑Yes, that was the period of time that I was not at work.

PN80

Yes. So, you were the one that - - -?‑‑‑I apologise - yes, I was on leave I believe at that particular - I went from end of September, returning at the end of December.

PN81

But you say in your statement that there was excess workload there. So that’s a period of time you weren’t at work?‑‑‑Yes. So upon my return, the work that was not covered during that period of time, or distributed, I dealt with upon my return, hence the reason why I have a WorkCover claim.

PN82

I see. But it’s fair to say that it’s a busy time - that was a busy time?‑‑‑It was a busy time because the fact that I was not there for a prolonged period of time, and my position could not be backfilled even though I had given 2 months’ prior notice.

PN83

And at 16(b) in your statement, I think you say, well you say something to the effect that the Sunshine office, there has been an increase in issues when dealing with clients. So, again, that’s another example of where - it’s a very busy office is what we’re talking about at Sunshine. You say, 16(b), “in reference to point 6, it has been highlighted that despite the reduction of tenants the Sunshine office, there has been an increase in issues?‑‑‑That was in response to management putting forward that there has been an increase in issues raised, and my response to that was it’s never been brought to our attention.

PN84

That there has been an increase in issues?‑‑‑Well, in issues I guess that have been raised to a management level, in a sense that we have not acted within our role, or that we haven’t responded accordingly; it’s never been brought to our attention individually or as a team collectively to indicate that we haven’t responded or acted within our duties as a housing officer.

PN85

But it’s fair to say it’s a busy office?‑‑‑Well, across the board it is a busy office, yes.

*** ZEINA HAOUCHAR XXN MR CLARKE

PN86

So it’s a reasonable response of management to look at ways to address overburdening the staff and also providing a good service. Do you think management has a responsibility to look at those options?‑‑‑Yes, they do.

PN87

So would you agree that looking at the way flexitime is used is one way that management might seek to address the overburdening of staff and providing a service to clients? Do you think that’s reasonable that management would look at that?‑‑‑It’s reasonable that they look at it, but it’s not to say that it’s the most practical.

PN88

But you don’t dispute that management would look at all options, and that would include the flexitime option?‑‑‑Well, that’s within their rights to look at it, yes.

PN89

Okay. Could I take you back to the folder, I’m sorry, tab 5, POK3? In that first part of that tab, or the first part of that attachment to Mr O’Kelly’s statement, is the proposed flexitime arrangement. You’ve seen that document?‑‑‑Yes.

PN90

You’ve stated that you’ve seen that document?‑‑‑Yes.

PN91

It’s fair to say that that document, and the current arrangement and what has been proposed, are not that dissimilar, other than this document doesn’t give you access to a 9‑day fortnight, would you agree with that?‑‑‑Yes, if that’s what has been proposed as the alternative, yes.

PN92

So it’s not that different?‑‑‑Sorry?

PN93

It’s not that different to the current arrangement, other than the 9‑day fortnight?‑‑‑I guess, well, there’s some discrepancy in the roles and what it actually entails, but on the whole - - -

PN94

It’s on the whole it’s not dissimilar?‑‑‑Mm.

PN95

So, clearly, the main change is that under this arrangement you don’t get access to a day off a fortnight; you get access to a day off every four weeks?‑‑‑Well, that’s what’s been disputed, yes.

*** ZEINA HAOUCHAR XXN MR CLARKE

PN96

Yes. We’ve already spoken about what you use a flex day for, primarily, or that you use it to attend appointments and so forth. So I put it to you again that under this arrangement that has been proposed, you would still be able to attend to those appointments, and you would still be able to take your son to his sporting functions and his part time work, so I’m putting it to you that this arrangement would still allow you to do those types of endeavours?‑‑‑Not really, because as I said due to my WorkCover claim that I have in place I do require considerable time away from the workplace where I attend medical appointments, and prior to utilising or in having the option of utilising the flex, if I don’t have sufficient hours I’ve been using my sick leave or rec leave to cover that.

PN97

So I’m going to give you a question - you may not be able to answer this one but - so taking out your WorkCover claim and whether it’s you or other staff members, if you didn’t have that WorkCover claim in place, that you would be able to attend to many or most to all of those matters that have been raised, such as appointments and so forth - - -?‑‑‑No.

PN98

So for yourself and I’m also suggesting that other staff as well?‑‑‑No, as I said, you know, some of the appointments I guess - well speaking on behalf of the team also, a lot of their appointments or commitments outside of work do clash within work hours, so having the 9‑day fortnight will allow them the option to attend to those appointments rather than utilising their rec leave or extended leave that they would have to use as a fall‑back plan.

PN99

For example, someone like myself who works the full 10 days, I’d have to make other arrangements, you’d agree with that, if I don’t have access to a flexitime arrangement?‑‑‑Yes, and most often it will resort to using recreational leave or sick leave.

PN100

So myself and my colleague, Mr Richmond, we’d have to do that?‑‑‑If that’s an option that you choose that’s - - -

PN101

Could I take you to paragraph 16(d) of your statement? You speak there that you use flexitime to prepare for VCAT hearings, is that correct?‑‑‑Correct.

*** ZEINA HAOUCHAR XXN MR CLARKE

PN102

As we’ve said, you’ve seen the proposed flexitime arrangement. How would the proposed flexitime arrangement not allow you to prepare for VCAT hearings as you say there at your clause (d) there – it’s your clause 16(d)?‑‑‑Well, in preparation, as I’ve indicated in my statement, preparation for VCAT requires us to attend the office and be there prior to, or around, 8.30 if not prior; it is not always possible, if we were to stick to the proposed current flexi arrangements that has been indicated or highlighted, will not allow us to accrue enough hours. Our work is very unpredictable; I could have, you know, one hearing one day and in a space of a week I can have in excess of ten, so there’s no really way of predicting what the workload will be like, and we need sufficient time to prepare for those, in conjunction to accommodating to all the rosters that we have, so it’s not always feasible for us to come in at 8.30 or 8.45, or the 9 o’clock that is being proposed, and give us sufficient time to prepare the case load, so we would require - we would, you know, utilise our flex in that instance.

PN103

Ms Haouchar, sorry, I didn’t mean to cut you off there - a little while ago I asked you if the proposed flexitime arrangement and the current arrangement if there was any substantial difference, and I think we agreed that the only substantial difference was under the proposed arrangement you didn’t get access to a 9‑day fortnight; you said there’s no substantial difference between the two arrangements. So I say to you again, if there’s no substantial difference between the two arrangements other than access to a 9‑day fortnight, how would you not be able to use the flexitime arrangement that’s proposed to prepare for those VCAT hearings?‑‑‑Well we wouldn’t be able to accrue sufficient hours to be able to do our work and our function as a housing officer, so if we were only provided the option of one day a month where we would have that option of utilising the flexi leave that will allow us to maybe accumulate no more than half an hour per day, if that was the case to build up that one day a month, which is not viable for us as housing workers to actually carry out the function of our role.

PN104

In your statement you also say that you use the flexitime arrangements to re‑energise and to be able to physically, mentally and emotionally be fit for work. Do you agree with that? I think that’s - - -?‑‑‑I mean, that was one aspect of why I utilise it, yes.

PN105

So it’s fair to say that having a day off is – it’s nice to have a day off a fortnight, isn’t it? It’s convenient?‑‑‑It’s not a matter of convenience, it’s more a matter of, given that our role itself is quite complex and we do have commitments outside of work, and to maintain that work/home wellbeing, it’s required within the workplace, and it has been something that has been operational, and it has been quite successful.

PN106

So you do have - as you said you do have some work/life balance and that day a fortnight gives you that opportunity?‑‑‑Yes, and that’s if we choose to utilise it. Not all staff utilise it every fortnight. It’s an option to have in the event that it is required. It’s not to say that everyone takes it every fortnight without a doubt.

PN107

Can I take you to, in that folder again, tab 12, which is marked as POK7?‑‑‑Yes.

PN108

These are emails, they’re addressed from Mr O’Kelly to the staff, sent on 27 April. You may not recognise all of them but you may recognise one to you?‑‑‑Yes.

*** ZEINA HAOUCHAR XXN MR CLARKE

PN109

In that email Mr O’Kelly provided quite an amount of detail, that came out of the response that he had received from both the collective response and the individual response, and then Mr O’Kelly has sent emails to all staff, or to those staff that responded individually, which included you, yes? And would you agree that Mr O’Kelly - so you speak about some of those family work/life balance matters - would you agree that Mr O’Kelly invited you, if you had any matters such as that, to meet with him, to speak specifically to Mr O’Kelly?‑‑‑Yes.

PN110

Would you agree with that?‑‑‑The outlines in his email?

PN111

Yes?‑‑‑Yes.

PN112

Did you take up that option?‑‑‑No.

PN113

So you didn’t feel it necessary to meet with Mr O’Kelly to put forward your own circumstances as to why you may need to have a - - -?‑‑‑My personal circumstances were outlined in the earlier email, and it has been raised collectively as a team on prior occasions. Did not see the need to meet with Mr O’Kelly one-on-one to outline in further or, I guess, try and convince him why, you know, going into depth about my personal circumstances any more than what has already been outlined.

PN114

Did you at any time take the opportunity to present why you needed a 9‑day fortnight?‑‑‑As I indicated, my statement on my earlier email had been sent through at the time of these proceedings had commenced or - I was overseas for that 3‑month period so hence why I didn’t initially submit a statement earlier or late last year, but upon my return I participated in meetings where Mr O’Kelly was present, as was a CPU representative. I didn’t see the need to again meet with him on an individual basis.

PN115

So all those meetings and so forth, and discussions with your representative, the reasons why the Department wanted to change the arrangement was put to you, and you understood what was being put to you, and you had opportunity to comment on those changes, so it would be fair to say that the Department informed you satisfactorily of the reasons why it wanted the change to flexitime arrangements?‑‑‑Upon my return I became aware of the circumstances, and just before I went on leave that’s when it had all started.

PN116

But you agree the Department has informed you of its reasons?‑‑‑Yes, we’ve been made aware of the circumstances, yes.

*** ZEINA HAOUCHAR XXN MR CLARKE

PN117

Yes. And as I said, just to reiterate, no other alternative to the 9‑day fortnight other than the current arrangement, or reiteration of the current arrangement, was put back to Mr O’Kelly?‑‑‑I disagree, as I indicated.

PN118

Yes?‑‑‑A proposal was put forward initially earlier on, and it was proposed by the team that an alternative was that we have one day every three weeks rather than one day every month.

PN119

Yes. Is that in - if you go to tab 8 – no, tab 7, I’m sorry, which is POK5 - is that the document you’re talking about? That was the document submitted on 29 May so that’s not the document you’re talking about there, is it?‑‑‑No, there were prior discussions, and I believe there’s discussions also took place whilst I was overseas during that September to December period.

PN120

Okay. Have you had a chance to look at that document there that I’m referring to, that one at tab 7, POK5? Have you seen that document?‑‑‑Yes.

PN121

None of those suggestions there - or those suggestions, I’m putting to you - those suggestions there are all what’s currently in place now, aren’t they? There’s nothing different there to what’s being proposed - to what’s currently in place?‑‑‑I guess the only thing that hasn’t been brought up in here is the fact that we have a staff member who is - one of the points that if working part‑time no flexi leave is allowed, we have two staff members that are job sharing that will be carrying out the role of a housing worker over a 4‑day week, that entails them working the 38 hours which is almost a 10‑hour day. So if we were looking at it from a flexi point of view they are getting the 9‑day fortnight.

PN122

Can you just take me to where you’re talking about there, please, Ms Haouchar?‑‑‑If working part‑time no flexi leave is allowed, sort of mid‑point - - -

PN123

Is that the current situation?‑‑‑Well it’s one that is about to be or has been implemented. My colleague who’s due to medical reasons not been able to attend today, but it was an arrangement with one of the staff who’s come back from leave, and that arrangement has been put in place to take effect next week.

PN124

For that staff member?‑‑‑For the staff member that is on leave and Janine Hubbard who couldn’t be here today.

*** ZEINA HAOUCHAR XXN MR CLARKE

PN125

But it’s fair to say that this document you’ve got here doesn’t substantially change the way that flexitime is applied at the moment? It’s really just a re-statement of the current arrangement, isn’t it?‑‑‑Yes.

PN126

It is?‑‑‑All right, yes.

PN127

So the answer was yes. It’s just a re-statement of the current arrangement. What I’m suggesting, Ms Haouchar, is it’s not an alternative, is it? I think you’ve already answered yes there, Ms Haouchar, so I’ll take that as a yes?‑‑‑Yes.

PN128

Ms Haouchar, look, I’ve only just a couple more questions really. I’m putting it to you that the staff at the Sunshine office have unreasonably withheld an agreement to introducing a new flexitime arrangement. What do you have to say to that?‑‑‑Well, I disagree. It’s an option that was put forward. Some staff chose to continue utilising the 9‑day fortnight, other staff have opted to work within the core hours and accrue no flexitime, and we have seen that the impact that has had. We’ve had staff absences, we’ve had staff leave, and we’ve had staff step in other positions that has impacted the team as a whole, and without the opportunity to actually accrue additional flexitime we can’t function or continue to carry out our duties as a housing officer.

PN129

I just put it back to you that you did agree that the proposed arrangement and the current arrangement don’t substantially differ other than the opportunity to take a 9‑day fortnight, so I put it to you again that those matters that you’re raising that limit your capacity to use flexitime, none of those are not available to you under the proposed arrangement? We’ve already agreed that there’s not a substantial difference between the two arrangements, on two occasions?‑‑‑Again, I guess, the proposal or what is outlined in there, it is not feasible to continue carrying out our role. So there might be a - they don’t take into account the variations - the complexity of our role, and the unpredictability in our role.

PN130

I’ll just re-state to you that under the proposed arrangement staff can still start early, build up flexitime, they can still leave early, build up flexitime, so there’s still that flexibility in the proposed arrangement, I’m putting that to you. Do you agree or disagree with that?‑‑‑It’s limited.

PN131

Okay, thank you, Ms Haouchar. I have no more questions, Commissioner?‑‑‑Thank you.

PN132

THE COMMISSIONER: Your re-examination, Mr Price?

RE-EXAMINATION BY MR PRICE [10.43 AM]

PN133

MR PRICE: Yes, Commissioner. Ms Haouchar, can I take you to your witness statement, paragraph 16, subparagraph 6?‑‑‑Paragraph 16, did you say?

*** ZEINA HAOUCHAR RXN MR PRICE

PN134

Yes, sorry, paragraph 16 subparagraph (b), sorry. So in that statement you’re referring to Mr O’Kelly’s document that was provided to you on 2 April, and point 6 of that document says it has been highlighted that despite the reduction of tenants in the Sunshine office there has been an increase in issues. So, just to clarify, was that ever raised with you before you saw that document?‑‑‑No.

PN135

Okay, thanks for that. Could I now take you to tab 12 of the folder, and in particular the email that was sent to you from Mr O’Kelly on 22 June? And so he’s made an offer to speak with staff individually. Was the reason that you declined to accept that offer to speak to him individually that we were dealing with this collectively as a union rather than as individuals?‑‑‑Yes.

PN136

Okay, thank you.

PN137

THE COMMISSIONER: Thank you, Ms Haouchar, you’re excused.

<THE WITNESS WITHDREW [10.44 AM]

PN138

THE COMMISSIONER: Thank you, that’s the end of your evidence, Mr Price?

PN139

MR PRICE: Yes, it is, Commissioner. Thank you.

PN140

THE COMMISSIONER: Mr Clarke?

PN141

MR CLARKE: Thank you, Commissioner. I’ll just make some brief opening comments, Commissioner, look, perhaps for my benefit as much as anyone, that I understand that this matter was first raised last year and that it was raised by the union because staff apparently - my understanding is that some staff who were accruing their flexitime were unable to take it because of workload, so I think the notion that it is a busy office was not in question.

PN142

Mr O’Kelly drafted something in August 2014 that was sent around. The CPSU, Ms Cassell I understand, was involved at that early stage. Some changes were made to the document sent by Mr O’Kelly, and essentially that change, or essentially the proposal of management was that flexitime could not be used to take a day off a fortnight. What was proposed effectively meant a day off every four weeks, or a half day every two weeks, and that’s noted in the previous decision, or the decision of March 2015 at paragraph 18 of your decision, Commissioner.

*** ZEINA HAOUCHAR RXN MR PRICE

PN143

Staff rejected the proposal, consultation continued to occur, and this was recognised in your decision again at paragraph 20, and then also that at paragraph 51 of that previous decision that nothing was put to Mr O’Kelly to find an equitable solution. Essentially, staff seemed to be of the view that they didn’t agree with the management’s operation requirements and that they enjoyed the 9‑day fortnight and wished to maintain that arrangement. Mr Price has outlined in your previous decision you asked some specific questions, and most pertinent, at paragraph 55, were how the current arrangement does not support those requirements and how the proposed flexitime arrangement will enable those work requirements to be met. They were the matters that you wished dealt with.

PN144

The Department provided the operational reasons to individual staff of how the business matters have changed and how this affects staff. We say that we’ve done that; we’ve provided the information to the staff. The document that was provided on 2 April 2015 sought feedback from staff. That document noted that the coverage between 8.45 and 5 pm when it’s at its peak was lacking, and staff were asked to respond to these details, however, rather than putting forward an individual response a collective response was put forward. That collective response did note that the tenant contact work is at its optimum between 8.45 and 5 pm. Mr O’Kelly then provided individual responses, and that was POK7 of Mr O’Kelly’s statement. And I should remiss to say thank you for accepting that attachment, Commissioner, after submissions had closed.

PN145

A collective meeting was held on 8 May and then again on 29 May, and this will be in Mr O’Kelly’s evidence. But essentially the outcome, we find ourselves is, that staff wish to retain the current arrangements which have been in place since at least 2009, however, throughout the whole process there has not been a viable alternative put to Mr O’Kelly to consider. In our view, it’s an argument of convenience over necessity. No one is disputing that it’s nice to have a 9‑day fortnight, however, the business needs of the Sunshine office are such that an arrangement adversely affects the functioning of that office. The Department relies on the submissions and the evidence of Mr O’Kelly, whom I now call Mr O’Kelly to the stand.

PN146

THE COMMISSIONER: Mr O’Kelly.

<PAUL O'KELLY, AFFIRMED [10.49 AM]

EXAMINATION-IN-CHIEF BY MR CLARKE [10.50 AM]

PN147

MR CLARKE: Mr O’Kelly, can I ask what position you hold with the Department of Health and Human Services?‑‑‑Sorry, I missed that.

*** PAUL O'KELLY XN MR CLARKE

PN148

Can I ask what position you hold with - - -?‑‑‑I’m the residential client services manager for the Brimbank mountain area in the West division.

PN149

I see you have some papers there with you? So you’ve made a statement in regard to this matter, have you?‑‑‑I have.

PN150

Does that statement run to 19 paragraphs with seven attachments, sir?‑‑‑Yes.

PN151

Have you had an opportunity to read your statement recently?‑‑‑Yes.

PN152

Are there any amendments or corrections you wish to make to that statement?‑‑‑No, other than the individual emails I sent to employees, which you’ve already addressed, Commissioner.

PN153

That’s attachment POK7 there, Commissioner, thank you. So is that statement true and correct to the best of your knowledge?‑‑‑Yes.

PN154

Commissioner, I seek to tender that statement into evidence.

PN155

THE COMMISSIONER: Thank you. I’ll mark the statement of Paul O’Kelly dated 18 June consisting of 19 paragraphs and seven attachments as DHHS3.

EXHIBIT #DHHS3 STATEMENT OF PAUL O'KELLY DATED 18/06/2015 CONSISTING OF 19 PARAGRAPHS AND SEVEN ATTACHMENTS.

PN156

MR CLARKE: Thank you. Mr O’Kelly, I understand that you gave evidence to the Commission at the previous arbitration?‑‑‑I did.

*** PAUL O'KELLY XN MR CLARKE

PN157

The decision in that previous arbitration asked management to provide details to the housing services officers about how the current arrangement does not support your workload requirements, and how the proposed flexitime arrangement will enable those to be met. Can you provide some brief comment to the Commission about those matters?‑‑‑So following the last hearing and following the direction of the Commission, there was a requirement that we outlined the workload issues that I’d raised at the hearing, so we did that via email. There was also a subsequent action from it, and if I use the wrong terminology I apologise, but that was around individual employees coming to me and advising what alternatives they’ve sought in addressing some of the issues, because as I said at the first hearing a lot of the comments that had come up around the reason and the rationale people wanted to have a 9‑day fortnight were around things that I believe are covered in other forms of leave, so we do have leave to cater for a range of things, and just to clarify too for people that, you know, in no stage were we - you know, the intention from day one was to minimise from one day a fortnight to one day a month, not to remove flexitime, so, in short, people were very clear they could still come in late and finish early, within a boundary, as long as we had a core coverage during that 8.45 to 5 pm period.

PN158

And Mr O’Kelly, you also provided the opportunity for staff to come to you and discuss any personal issues that they may have. Can you provide some comment to the Commission about that?‑‑‑So, what I basically did was write to each individual, because I was provided a - I think the guys used the term ‘a group response’ to the initial hearing, and within that there was attachments from individuals outlining what their rationale and reasons were for why they were wanting a 9‑day fortnight. Those rationales required further questions, like, they lead to further questions, so there was things like, for example - and again this is why I sent it individually; I didn’t think it was - some of the information was personal for people, so I thought it was inappropriate to send a global response so I sent it individually. Some of those responses were around caring for loved ones and assisting them with appointments and things like that, so subsequently my response to that was, look, I’m more than happy to sit down with you and talk more about what these appointments are, and perhaps we can look at rearranging your work requirements under a flexible working arrangement, and I actually stated that in the email, and I actually went through what I believed were the correct responses and the correct use of leave for the types of things they put up. Only one person initially had probably outlined things that I believe we could’ve really sat down and nutted out a flexible working arrangement, but unfortunately no one came and actually saw me.

PN159

You heard the evidence of Ms Haouchar?‑‑‑Yes.

PN160

Ms Haouchar talked about a typical days - as part of the response or putting together your materials, you looked at three typical days in the office?‑‑‑Yes.

PN161

Ms Haouchar disputed that they were typical days?‑‑‑Yes.

*** PAUL O'KELLY XN MR CLARKE

PN162

Do you have any comment about that?‑‑‑I’ll go back on what Ms Haouchar said in relation to - it is unpredictable, the nature of what we do is unpredictable, and we - you know, we don’t make appointments for our tenants to come in, so when I talk about a predictable day, you know, the average day, I could have also used, in the last two weeks we’ve had days where we’ve had periods because of sick leave and unplanned leave, and I appreciate people have the entitlement and the right to that so by no means am I saying that’s the issue, but there’s days where we’ve been left in the office with one person for a period of time, and that person’s required to answer the phones, answer the front. The team do do an amazing job with that, I’m not here to slam that, but I think what the team does do well is cater for when we have the peaks and troughs. I know there was a mention of VCAT. We actually have a roster for VCAT, so I’d like to think it’s generally not that unpredictable. I appreciate there will be times where things are unpredictable in that space, but I think we have sufficient preparation time for those sorts of things.

PN163

I heard Ms Haouchar also talk about a proposal where staff would take a flexiday off every three weeks. Do you have any recollection of that or would you like to provide some comment on that?‑‑‑No, and, look, I’m not - I’m a little bit confused by it, I’ve never received anything formally to advise this. I know that very early on in this journey we had a conciliation I think you call it here, and there was the actual Commissioner that was here on that day proposed what about some - - -

PN164

THE COMMISSIONER: I don’t think it’s appropriate to raise matters that were dealt with in conciliation.

PN165

MR CLARKE: No, sorry, I should advise – I’m sorry?‑‑‑Okay, I apologise.

PN166

I do apologise, Commissioner?‑‑‑My fault. The reality is, no, I haven’t had anything until I received the document on the 29th, which was hand-delivered from CPSU. So I was hand‑delivered that, and then I subsequently responded to that, but in saying that I, again, I wouldn’t call that an alternative proposal; it really just outlined what’s currently in place. And there were some interesting statements in there that I believe I responded to; I challenged back and said, look, the reality is that is the expectation now. So I wouldn’t consider that an alternative proposal but that’s the only time I’ve ever been offered an alternative proposal.

PN167

Thank you, Commissioner.

PN168

THE COMMISSIONER: Thank you. Mr Price?

CROSS-EXAMINATION BY MR PRICE [10.57 AM]

PN169

MR PRICE: Yes, thank you, Commissioner. Mr O’Kelly, I draw your attention to paragraph 7 of your witness statement, which is now I think DHHS3?‑‑‑Yes, 2 April?

PN170

Yes?‑‑‑Yes.

*** PAUL O'KELLY XXN MR PRICE

PN171

Yes, you refer to the document that you provided to staff on 2 April. So, referring to the loss of staff from the 2012 restructure - - -?‑‑‑Sorry, can you say it again, mate?

PN172

I said in referring to the loss of staff from the 2012 restructure in subparagraph (c), the document stated that although there was a reduction in employee numbers, employees still maintained roughly the same number of tenants in their patches as those employees who left the Sunshine office and took their tenant patch with them, is that correct?‑‑‑Yes, correct.

PN173

Yes. So then in subparagraph (d), you state that the document stated that although the patch numbers are roughly the same for individual employees, there are nonetheless a reduced number of employees to cover employee absences, whether planned or unplanned, and the work associated with those absences. That’s correct?‑‑‑Correct.

PN174

Okay. So is it the case that the amount of leave taken and the rate of absenteeism per staff member has not changed since the restructure?‑‑‑I would debate that, and I can’t sit here and, you know, say exact figures.

PN175

Okay?‑‑‑Can I clarify what I meant by that statement too?

PN176

Yes?‑‑‑I think what I need to be really clear on is when we talk about patch sizes and things like that, we need to be really clear, tenants don’t – just because someone’s HSO works in Sunshine doesn’t mean they’re going to go to Sunshine office; they may go the Footscray office. Unfortunately for us in Sunshine, we still have a lot of those tenants that left, so to speak, from the HSOs. Those tenants still come in to our office and still require service from our office in that sense. We seem to have addressed that; I think we’ve addressed that pretty well. What I was trying to get at in that is previously, when you had so many numbers, if someone wasn’t there, you know, there was ample people to pick up the slack. Now, with the reduced team, there is, you know, when there’s a couple of people on sick leave, which happens, a couple of people on rec leave or a person on rec leave, or as Zeina highlighted before when we’ve had positions that we weren’t able to fill because someone was on rec leave – I need to be clear, we always attempt to fill them; unfortunately, you know, like any industry we can’t fill them, but that’s through no means of trying. So there is periods where workload increases for a period of time and the numbers are dramatically different. Is that - - -

PN177

Yes, but it’s your evidence that the patch sizes per staff member have remained - - -?‑‑‑Remained the same.

*** PAUL O'KELLY XXN MR PRICE

PN178

- - - more or less the same?‑‑‑Yes, absolutely.

PN179

Yes. And you haven’t submitted anything in evidence that suggests that there’s been an increase in absenteeism or anything like that?‑‑‑No.

PN180

Okay. So, whether you have, say, 20 or eight staff, the quantity of days lost per patch would remain roughly the same? Days lost in terms of – you’ve got people taking annual leave, sick leave, flexi days, that kind of thing?‑‑‑I don’t understand – no, I don’t think so. Sorry?

PN181

As a proportion, so - - -?‑‑‑So the way I understand it – sorry, let’s say I had 20 people previously - - -

PN182

Yes?‑‑‑And I had two on flex and two on sick, I’m down to, what’s that, 16 people. Now, I’ve got let’s say eight or nine people - - -

PN183

Yes?‑‑‑I have two away on flex, I’m down to four people in the office. It is a difference.

PN184

But each person isn’t taking any more leave, be it flex leave, annual leave, sick leave, than they were previously, per person?‑‑‑Look, I haven’t got any data, or they haven’t provided any data to argue that.

PN185

Yes. But they still have the same entitlement to four weeks’ annual leave per year each and everything?‑‑‑Yes, absolutely, and we also have people who have got purchase leave as well.

PN186

Yes. And so with the reduction in staffing levels, has there been a corresponding proportion of reduction in workload, for the whole team?‑‑‑Look, I think there would’ve been a reduction to workload, and that was purely around our rostering; I think we had that conversation at the last time we were here where we talked about previously there was rosters - there was additional rosters - but I think people are still on the same amount of rostered time, but I could be wrong. I don’t pretend to be an expert. The guys would know.

PN187

But would you say that it’s the case that with fewer staff you have a corresponding reduction in the total amount of flexi days taken?‑‑‑With fewer staff? Yes, of course, sorry, yes.

*** PAUL O'KELLY XXN MR PRICE

PN188

All right. So would you say it’s true then that you now have fewer staff members to cover absences but you have an equal and proportionate reduction in the amount of absences you need to cover?‑‑‑Yes, I guess so.

PN189

So, all things being equal, so with eight staff members on an given day you might perhaps have one staff member absent, whereas with 20 staff you might have two or three staff members absent?‑‑‑Yes.

PN190

Okay. And so regardless of whether staff take one flexi day per fortnight or one flexi day every four weeks, each staff member is still working the same total amount of hours, is that correct?‑‑‑I think I’m following it.

PN191

Yes?‑‑‑Sorry, I don’t mean to be - - -

PN192

THE COMMISSIONER: The question is people are still working on average 36 and three-quarter hours a week?

PN193

THE WITNESS: Yes, if that’s the question, yes.

PN194

MR PRICE: Yes, 76 hours per fortnight?‑‑‑Yes.

PN195

Yes, okay. So in paragraph 16 you state that since proposing the new flexitime arrangement in August 2014, after a meeting with the CPSU the applicant has not put forth one alternative proposal. Can you explain why that’s significant?‑‑‑Why?

PN196

Yes?‑‑‑Because we’ve made an attempt to resolve the issue and I’ve said from day one that my issue has never been around removing flexitime – I want people to have the flexitime – but I stand by the fact that, you know, having people – if I have eight people out of the office an extra eight days a fortnight where I’ve got one person down, and that’s what I’ve stated, so all through this process I have looked to resolve the matter and try to come up with a compromise of what’s reasonable - - -

PN197

Have you submitted an alternative proposal?‑‑‑I think I have from day one.

*** PAUL O'KELLY XXN MR PRICE

PN198

I’m trying to get at where does this obligation for the staff to submit an alternative proposal come from?‑‑‑Because part of the proposal was that I’m open to seek other – so one of the things was I outlined what my rationale and reasons were, but I also said I’m very happy to have individual conversations or as a group, look at other proposals that people have. Following that, we were also told when we were here, one of that was to, you know, have we looked at other proposals.

PN199

Okay. I think I asked you this last time, but has this process ever been carried out in accordance with clause 10 implementation of change in the VPS determination?‑‑‑And I’ll say the same thing I said last time, I believe I have.

PN200

Have you sent a formal clause to an implementation of change notification?‑‑‑I think we went through this last time where I said that this initial issue came up from the fact that CPS brought the matter to me because they weren’t happy with the current arrangement around – and one of the clauses within the agreement that said that staff that accrue over 10 hours will forfeit those hours; that’s where the initial issue started.

PN201

Well, we’ve never received a clause 10 implementation of change notification.

PN202

THE COMMISSIONER: Mr Price, didn’t I deal with this in the last decision?

PN203

MR PRICE: Partially. I don’t think we fully explored it. The issue is, and the point that I’m trying to raise, is around the alternative proposal and the requirement within clause 10, or the capacity within clause 10 for there to be an alternative proposal.

PN204

THE COMMISSIONER: Well, let’s talk about the alternative proposal. Keep going, but if you’re straying into this question of who had to go first, that was dealt with in the jurisdictional question in the last - - -

PN205

MR PRICE: Well, yes, what I’m getting at is whether there was or wasn’t a formal clause to an implementation of change notification from the Department.

PN206

THE COMMISSIONER: Doesn’t that go to the issue of who raised the issue in the first instance and - - -

PN207

MR PRICE: There’s a normal process. We get these all the time from the Department where when they’re proposing a major change they send us through a formal clause 10 notification around that.

PN208

THE COMMISSIONER: Yes, I understand that but didn’t I decide last time that you had commenced the process, so why did they need to notify you of the process that you started?

*** PAUL O'KELLY XXN MR PRICE

PN209

MR PRICE: I’m just trying to establish that they didn’t, because within that process there’s a capacity for us to submit an alternative proposal.

PN210

THE COMMISSIONER: Okay, keep going.

PN211

MR PRICE: Well, yes, that was the last of my questions anyway, so thank you, Mr O’Kelly.

PN212

THE COMMISSIONER: Sorry, I’m not quite sure whether Mr O’Kelly actually answered your last question.

PN213

MR PRICE: Okay.

PN214

THE COMMISSIONER: Did he? If he did that’s fine but I can’t recall.

PN215

MR PRICE: I believe he did, thank you.

PN216

THE COMMISSIONER: Okay, thank you. Re-examination?

RE-EXAMINATION BY MR CLARKE [11.06 AM]

PN217

MR CLARKE: Just a couple of points, Commissioner. Mr O’Kelly, Mr Price asked you about the impact if you like of having – or your response of having eight staff as opposed to 20 staff. Am I right in thinking that what you’re saying is the relativities don’t stack up, like, you’ll always need somebody there at the front counter, whether you’ve got eight staff or 20 staff, and the capacity to do that is diminished with eight staff?‑‑‑Correct.

PN218

And in terms of Mr Price also asked you about the alternative proposal, why you were seeking an alternative proposal. Are you familiar with the determination we’re working under and matters raised under clause 32.2.2(a), and in that it talks about that the actual days and hours of work will be those agreed between the employer and the employee, so it would be fair to say that the word ‘agreed’ implies that you are able to do other options?‑‑‑Absolutely.

PN219

I was going to look at that jurisdictional matter, Commissioner, but you were a little bit quick for me with it, so, I think that was raised in your previous decision.

*** PAUL O'KELLY RXN MR CLARKE

PN220

THE COMMISSIONER: My last decision says - well it says so. I think I dealt with the jurisdictional issue then, but I understand the question that Mr Price asked.

PN221

MR CLARKE: Thank you, Commissioner, nothing further.

PN222

THE COMMISSIONER: Thank you. Mr O’Kelly, you’re excused, thank you.

<THE WITNESS WITHDREW [11.08 AM]

PN223

THE COMMISSIONER: Mr Price?

PN224

MR PRICE: Thank you, Commissioner, I just have a brief closing statement to make. It’s the applicant’s position that the respondent has failed to set out in detail how the current arrangements do not support the requirements of the area, and how the proposed flexitime arrangement will enable these work requirements to be met.

PN225

Ms Haouchar’s witness statement makes a number of crucial points in regards to the rationale for flexitime change document provided to staff by Mr O’Kelly on 2 April 2015. Ms Haouchar’s statement shows that the claimed increase in issues has never been previously raised with staff, either individually or collectively.

PN226

The statement shows that by accruing flexitime and working slightly longer hours, staff are able to efficiently carry out in‑office tasks and prepare out‑of‑office functions. It has shown that the need to do home visits is not impacted by the existing arrangements. It has also shown that flexi leave does not have a direct impact on the day‑to‑day performance of an HSO as the office tasks are fulfilled regardless of staff presence and the staff currently work well together to ensure that all tasks are completed under the current arrangements.

PN227

Crucially, Ms Haouchar’s statement demonstrates that the snapshot provided in Mr O’Kelly’s document is not represented in the typical period in the Sunshine office. This was a very unusual time in that one staff member was on WorkCover while another was on extended sick leave. Despite all this, all the required work was completed on those days. Her statement shows once again that despite claims that business needs are not being met, the crucial rent arrears figures show continuous improvement over recent times.

*** PAUL O'KELLY RXN MR CLARKE

PN228

Contrary to the assertions made in the respondent’s submissions in paragraphs 8, 9 and 14, Ms Haouchar demonstrates clearly that a fortnightly flexi day is important to her personal needs.

PN229

The central claim of Mr O’Kelly’s evidence is the current practice of allowing one flexi day per fortnight makes it difficult to cover staff absences, and that this has become a problem since the reduction of staff in 2012; however, this does not stand to reason. The reduction in staff numbers has seen a corresponding reduction in workload and total days lost to flexitime, annual leave and absenteeism. There is no obvious reason why a reduced team is less able to cover absences than a larger team.

PN230

Nothing in the evidence submitted by the respondent proves that the current flexitime arrangements do not support the operational requirements nor how the proposed flexitime arrangement will enable these work requirements to be met. The union therefore submits there is no compelling reason to change the existing arrangements and that they remain as they are. Thank you.

PN231

THE COMMISSIONER: Thank you. Mr Clarke?

PN232

MR CLARKE: Thank you, Commissioner. Commissioner, you tasked the parties, or you asked the parties to address some specific questions in your previous decision: how the current arrangements do not support those requirements, and how the proposed flexitime arrangements will enable those work requirements to be met, and we say we’ve met those directions that you sought from the Department.

PN233

Commissioner, clause 32.2(a) of the VPS workplace determination states that either party may seek to alter the days or hours of duty and that agreement to such alterations should not be unreasonably withheld. In our view, the staff have unreasonably withheld their agreement to the change.

PN234

Commissioner, I have provided a couple of cases; they’re in the material. While they’re not strictly on point they are instructive. In the case of Jeffrey Lamb vs Bunnings Group Limited, in this case Bunnings wanted the changes rostered to have employees working across the busiest sales days of Thursday, Friday and Saturday. Mr Lamb gave specific reasons why he could not work Fridays and Saturdays. The Full Bench held that Bunnings could implement its roster noting that Bunnings had regard to family circumstances and offered the proposal that Lamb rejected.

PN235

In the case of the ASU against Mildura Rural City Council, Smith DP considered the words unreasonably withheld in that matter. The circumstances of that case were that a single parent, Mr Hickey, wished to relieve his own parents of taking his son to school. This would involve a change to Ms Hickey’s start and finish times. Because Mr Hickey worked in a team that was structured around a 7.30 am start to a 4 pm finish, the city council refused that request. His Honour, or Smith DP I should say, stated that the city council decision to refuse the request of an employee should not be for artificial or capricious reasons, and Smith DP found that the city council had acted reasonably, and properly considered the request of Mr Hickey.

PN236

As I said, while they were matters where staff had come to seek flexible working arrangements, they are still instructive, in particular, those matters or what was said by Smith DP that the actions of the employer should not be for artificial or capricious reasons. And we say very clearly that the reasons the Department is seeking change for the current arrangement are not artificial or capricious but based on the sound business requirements of the unit, and that has been articulated, or that has been put forward to the staff and to the union throughout this process.

PN237

It is important to note the Department is not seeking to do away with flexitime arrangements but rather to put in place an arrangement that better suits the demands of the Sunshine office, and as we say, it was said and heard Ms Haouchar agreed to, that there’s not a substantial difference between what had been proposed and the current arrangement. Clearly, the point in issue is that under the proposed arrangement, the 9‑day fortnight would not be available but rather that an option of taking a day off every four weeks.

PN238

Commissioner, if my arithmetic is correct here, in a 48‑week year, that’s 24 fortnights; if a staff member takes a day off a fortnight this will equate to 24 days – I’m using a 48 week less the annual leave – so there’s 24 fortnights in that period, that’s 24 days away from the office, and while I appreciate, as we’ve heard, not all eight staff may utilise the flexitime in this way, that does give the potential to take up to nearly 200 days a year off work.

PN239

We’ve heard Mr O’Kelly say that the relativities of having 20 staff to having eight staff just don’t stack up, in that there’s always a need to have somebody for example in front of office, and so that creates with less staff more staff away. We’ve heard in the evidence that sometimes staff are on sick leave, sometimes staff are on WorkCover, and so that reduces that eight even further and a flex day per fortnight is adding to the pressure to have the office operate in a reasonable way.

PN240

Commissioner, the remedy that we’re seeking is to have the proposed flexitime arrangement that was put forward by Mr Price to be implemented, and we ask that that is taken into account. Thank you, Commissioner.

PN241

THE COMMISSIONER: Thank you. Anything in reply, Mr Price?

PN242

MR PRICE: No, Commissioner.

PN243

THE COMMISSIONER: Good, okay. I thank the parties and the witnesses for the assistance they have provided today. I will reserve my decision.

ADJOURNED INDEFINITELY [11.16 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

ZEINA HAOUCHAR, SWORN............................................................................ PN32

EXAMINATION-IN-CHIEF BY MR PRICE..................................................... PN32

EXHIBIT #A1 STATEMENT OF ZEINA HAOUCHAR DATED 09/06/2015 CONSISTING OF 21 PARAGRAPHS....................................................................................................... PN38

CROSS-EXAMINATION BY MR CLARKE..................................................... PN41

RE-EXAMINATION BY MR PRICE................................................................ PN132

THE WITNESS WITHDREW............................................................................ PN137

PAUL O'KELLY, AFFIRMED........................................................................... PN146

EXAMINATION-IN-CHIEF BY MR CLARKE.............................................. PN146

EXHIBIT #DHHS3 STATEMENT OF PAUL O'KELLY DATED 18/06/2015 CONSISTING OF 19 PARAGRAPHS AND SEVEN ATTACHMENTS........................................... PN155

CROSS-EXAMINATION BY MR PRICE........................................................ PN168

RE-EXAMINATION BY MR CLARKE........................................................... PN216

THE WITNESS WITHDREW............................................................................ PN222

Fair Work Commission Transcripts

C2014/6672, Transcript of Proceedings [2015] FWCTrans 397 (6 July 2015)