B2016/1232, Transcript of Proceedings [2017] FWCTrans 548 (29 December 2017)

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PN6060

VICE PRESIDENT CATANZARITI: Thank you, Mr Slevin.

PN6061

MR SLEVIN: Thank you. Before I call our next witness there's a document that I'd like to tender in our case that arises from events of last week. The minister assisting the prime minister for the public service issued a further determination under section 24 of the Public Service Act. It's a determination that's associated with the announcements that have been referred to in these proceedings of the formation of the Department of Home Affairs.

PN6062

From my client's point of view, we can't assist the Commission other than to provide the document and give you some brief background facts to the document. I'm instructed that there hasn't been any consultation in accordance with the machinery of government policy about this determination. It was something that was simply made last week. We understand the circumstances to be this, that the Department of Immigration and Border Patrol will be the receiving agency for the purpose of these changes, or this integration. That there will be employees moving from the departments described in 3.1(e) of the determination on the second page, and there will be employees moving in from the Attorney-General's Department, the Department of Infrastructure and Regional Development, the Department of Prime Minister and Cabinet and the Department of Social Services.

PN6063

This determination preserves the terms and conditions for those employees at 5.1 for a brief period until 8 February next year. We understand that it's around 1000 employees who will be moving. Consequences appear to us to be that the workplace determination being made here is going to have some impact, not simply on the 14,000 or so we've been talking about but this further 1000 employees. So I thought it important that I bring that to your attention at this stage of the proceedings.

PN6064

VICE PRESIDENT CATANZARITI: Yes. Clause 2.2 this determination will remain in effect until a new workplace determination made by the Fair Work Commission becomes operational in the Department of Home Affairs.

PN6065

MR SLEVIN: Yes. So - - -

PN6066

DEPUTY PRESIDENT KOVACIC: It strikes me that the integration will pay parity as the challenge becomes potentially much more difficult as a result of these potential machinery government changes.

PN6067

MR SLEVIN: Yes, and after receiving this we've had some - our people have had discussions and we'll be seeking instructions as to what approach we may take in submissions about these sorts of - this in particular, and that may change our position in the proceedings. But I don't have those instructions yet. Steps are being taken to see if we can address this in some way. I can't say more because I don't have instructions at this stage.

PN6068

VICE PRESIDENT CATANZARITI: Have you got have anything to say on this, Mr O'Grady, any instructions?

PN6069

MR O'GRADY: What I can say is that I understand that there is an announcement that is imminent in relation to the Department of the Home Office. Employees will come into what will be called the Department of the Home Office. Obviously what is in the determination is an accurate account of what's to occur with the terms and conditions and those employees of course will be employees who will be covered by the workplace determination that you make as a Full Bench, and as a result of the scheme of the Act you're required to have regard to their interests.

PN6070

VICE PRESIDENT CATANZARITI: How do we do that by submissions only without any evidence? Isn't that going to be a bit of a difficulty for us?

PN6071

MR O'GRADY: Well, yes, what I can do is undertake to provide the Full Bench with the numbers of the employees and where they come from and what instruments they're under. At least as a starting point and - - -

PN6072

DEPUTY PRESIDENT KOVACIC: The instruments are referred to in clause 5.1 of the determination.

PN6073

MR O'GRADY: In there but, yes, provides you with the instruments I suppose is probably something that we might be able to assist you with, Kovacic DP, and the numbers - - -

PN6074

DEPUTY PRESIDENT KOVACIC: Well, I think is - from a personal perspective, is really about the differences in terms of the pay spines. I mean it has potentially significant implications for the submissions of all of the parties as to how those different pay spines might be. And whether indeed the objective of moving to a single pay spine remains the Commonwealth's - or the views of both parties. If so, what is that? The issues to which some of the allowances that might be applicable in some of the other instruments might also be relevant considerations and how they may alter some of the thoughts. It's basically in a worst case scenario it's back to square one in some respects.

PN6075

MR O'GRADY: I understand. I understand.

PN6076

COMMISSIONER JOHNS: We sort of need to know who they are and what they do and how it all fits together, and it's difficult to see how we can deal with that without evidence.

PN6077

DEPUTY PRESIDENT KOVACIC: To the extent that any of the parties may wish to lead further witness evidence around particular issues and just - it's, yes.

PN6078

MR O'GRADY: I appreciate the gravity of what you're saying and my own mind is working towards how we deal with that.

PN6079

VICE PRESIDENT CATANZARITI: We'll make this CPSU31.

EXHIBIT #CPSU31 DETERMINATION DOCUMENT

PN6080

MR SLEVIN: I call Susan Jones.

PN6081

THE ASSOCIATE: If you'd just state your full name and address please.

PN6082

MS JONES: My full name is Susan Fay Jones and my address for work purposes is 10 Cooks River Drive, Mascot, in New South Wales.

<SUSAN FAY JONES, AFFIRMED [10.12 AM]

EXAMINATION-IN-CHIEF BY MR SLEVIN [10.13 AM]

PN6083

MR SLEVIN: Is your full name Susan Fay Jones?‑‑‑Yes.

PN6084

Your business address is 10 Cooks River Drive, Mascot?‑‑‑Yes.

PN6085

You're an investigator employed in the Department of Immigration and Border Protection?‑‑‑Yes.

PN6086

Ms Jones, have you prepared a witness statement for use in these proceedings?‑‑‑Yes, I have.

PN6087

Do you have a copy of it with you?‑‑‑Yes, I do.

*** SUSAN FAY JONES XN MR SLEVIN

PN6088

If we can identify that document, is the document that you have 45 pages in length with 244 paragraphs?‑‑‑It is 45 pages and 244 paragraphs, correct.

PN6089

There are a number of annexures taking the statement to 101 pages, page numbering in the bottom right-hand corner on that last page?‑‑‑Yes, there is one annexure, it is one complete document, taking it to 101 pages.

PN6090

Thank you. Do you have any changes to that statement before I ask you if it's true and correct?‑‑‑Yes, I do.

PN6091

What are they?‑‑‑So some minor changes revolve around my son is now eight not seven, my living circumstances have changed slightly and I now longer rent, I've been able to purchase a property. I say in one part that I haven't planned on taking a trip for a long time, I'm finally taking a one week holiday to Hamilton Island in January, and the more important part is at paragraph 230 in relation to operational trainer separation allowance, I make a statement that the allowance was not preserved. That's an error, it actually is preserved. I'm not aware if any of the staff currently occupying those roles are eligible for the allowance, so I'm not sure whether it's been paid to anyone, but it is actually preserved under the S24 determination.

PN6092

With those clarifications, is the content of that statement true and correct?‑‑‑Yes, I believe it is.

PN6093

I tender the witness statement of Susan Jones.

PN6094

VICE PRESIDENT CATANZARITI: CPSU32.

EXHIBIT #CPSU32 WITNESS STATEMENT OF SUSAN JONES

PN6095

MR SLEVIN: That's the evidence‑in‑chief.

PN6096

VICE PRESIDENT CATANZARITI: And we have the objections from Mr O'Grady?

PN6097

MR O'GRADY: I think they've been sorted out through your Honour's associate. Thank you, sir.

CROSS-EXAMINATION BY MR O'GRADY [10.15 AM]

*** SUSAN FAY JONES XXN MR O'GRADY

PN6098

MR O'GRADY: Ms Jones, do you mind just having a quick look at paragraph 18 of your statement? I just wondered whether there was a mistake made in that paragraph where you say that - the words in brackets - "The staff voted to reject the proposed agreement in the lead up to integration." My understanding is that the first valid agreement was not until September 2015, after integration?‑‑‑I believe what I'm referring to there is the former Immigration Department, prior to integration; I believe they had a ballot.

PN6099

Are you sure about that? I don't think there has been anywhere in evidence in this case of a ballot for a separate Department of Immigration agreement?‑‑‑If I'm incorrect then I'm incorrect. That was my understanding at the time I wrote the statement.

PN6100

I just want to ask you a couple of questions about flex‑time, and in particular, flex‑time debit and flex‑time credit. I'm right in saying this, am I not, that any overtime that is performed under the Department's proposed enterprise agreement will be offset at the rate the overtime was payable, for example, on a weekend and the like? It's one of the matters that you take issue with, I think, is that right?‑‑‑I'm not sure I completely understand - well I need to perhaps clarify your question a little bit.

PN6101

Let's go back to the start. Under the Department's proposal, where an employee has a flex‑time debit, that is, the employee essentially owes the Department hours, under the Department's proposed workplace determination, any overtime that is then worked will be offset against the debit that the employee has, at the overtime rate?‑‑‑If it qualifies the overtime?

PN6102

Yes?‑‑‑I'm not sure if, given that the Department's proposal was that you need to work eight hours and 30 minutes with an unpaid meal break of 30 minutes before overtime would begin to accrue, changes your question slightly.

PN6103

No, I'm just talking about the concept of offsetting a flex‑time debit. As I understand it, your position is employees should be entitled to be paid for overtime worked, even in circumstances where they have a flex‑time debit, is that right?‑‑‑Yes.

PN6104

And the Department's position is the Department should be entitled to set that overtime off against the debit before the employee is paid. Do you understand the difference between the two?‑‑‑Yes.

*** SUSAN FAY JONES XXN MR O'GRADY

PN6105

Isn't it the reality that the employee, having accumulated a flex‑time debit, has already been paid for the hours that they are being asked to work by way of overtime?‑‑‑I'm not sure that I'd characterise it as being paid, but yes, they have worked the hours and been paid their base wage - sorry, they've not worked the hours and been paid their base wage.

PN6106

Yes, so they've been paid for the hours that they are yet to work?‑‑‑Yes.

PN6107

And so if you offset at the overtime rate, all they're doing is absorbing the amount that they've already been paid, aren't they?‑‑‑I would agree with that.

PN6108

In terms of a flex‑time credit, one of the issues that arises is - I think it's the position of the CPSU that there is a preference to allow employees to cash out a flex‑time credit where there's an excess of hours secured, is that right?‑‑‑Under certain circumstances, correct.

PN6109

Whereas the Department's position is that all flex‑time credits are to be consumed by taking time off, if you like?‑‑‑Correct.

PN6110

Isn't it right that the whole idea of the flex‑time system is such that where employees do work excessive hours, they should be allowed to have time off so that they can be fresh and ready to go for their future work?‑‑‑That is ideally; however, operationally, there are circumstances where that doesn't occur.

PN6111

I understand that, but the proposition is this: one can choose to engage in the flex‑time structure, in which case there are these flexibilities that the employee has, or one can choose to be paid on the normal overtime structure with fixed hours?‑‑‑It's not a choice of the employee. It's dependent on the work area that you - or the job role you are currently in. The Department has made decisions about which areas will be flex‑time and which area will be standard time and which area will be shift work.

PN6112

You give some evidence in your witness statement about car parking at airports. I think you also give evidence about an arrangement that has been negotiated between the Department and Sydney Airport Corporation Limited?‑‑‑Yes.

PN6113

You have no reason to believe that those arrangements are going to cease at any time, do you?‑‑‑I have no knowledge of their intentions in that regard.

*** SUSAN FAY JONES XXN MR O'GRADY

PN6114

So, so long as the arrangement continues, you're satisfied with the current arrangements for parking at Sydney Airport, is that right?‑‑‑Correct, which is why we're seeking the commitment that they continue to try and forge that arrangement with SACL.

PN6115

You also give evidence in your witness statement about an example of a need for you to travel from Sydney to Canberra around the cents per kilometre allowance. Can the witness be shown a copy of exhibit 4, please, which is the Department's workplace determination? Can you go to clause 9.25, please, Ms Jones?‑‑‑Yes.

PN6116

You'll see that that gives the Secretary the ability to give approval to an employee to use their own vehicle - - -?‑‑‑Yes.

PN6117

- - - for work purposes and pay a cents per kilometre amount for that travel?‑‑‑Correct.

PN6118

In the example that you give, I think it's in essence that it would be silly to go to Sydney Airport, then get on a plane, fly to Canberra and then go to where you have; it's quicker just to drive your car, isn't it?‑‑‑For me it is, yes.

PN6119

So in that example, it would be in the Department's interest to pay you a cents per kilometre allowance, wouldn't it?‑‑‑I can't say what's in the Department's interest.

PN6120

Well it's pretty obvious, isn't it, that it would be in the Department's interest to pay you a cents per kilometre allowance for that time, rather than have you incur the burden of having to go to Sydney Airport, take longer to get to Canberra; that's your point, isn't it?‑‑‑I think the point I'm making in my statement is that it's a mutually beneficial arrangement that I have a choice about how to travel, and our current agreement allows that.

PN6121

And so mutually beneficial means it's in the Department's interest as well, doesn't it?‑‑‑Yes. I think so, yes.

PN6122

You also give some evidence about the domestic care support scheme, which is actually an arrangement under the CPSU proposed workplace determination. I think your evidence is that that is an entitlement that is critical, is that your evidence, I think at paragraph 181 of your statement?‑‑‑Yes, that's correct.

PN6123

The fact though is, isn't it, that under the CPSU's proposed workplace determination, that entitlement is not an entitlement as such at all; it's a discretion that can be exercised by the Department, isn't it?‑‑‑I don't have a copy of it in front of me.

*** SUSAN FAY JONES XXN MR O'GRADY

PN6124

If you could be shown a copy of exhibit 5, please, which is the CPSU‑proposed workplace determination? The relevant clause is 616.

PN6125

DEPUTY PRESIDENT KOVACIC: What's the clause number again, Mr O'Grady?

PN6126

MR O'GRADY: I'm sorry, Deputy President. It is 616.

PN6127

DEPUTY PRESIDENT KOVACIC: Thank you.

PN6128

MR O'GRADY: I dare not offer a page number on the version that I've got. You see, that's a discretion that's conferred upon the Department, isn't it?‑‑‑With the use of the word, "may", I assume you're referring to?

PN6129

Yes?‑‑‑Yes.

PN6130

Nothing further. Thank you.

PN6131

MR SLEVIN: No re-examination.

PN6132

VICE PRESIDENT CATANZARITI: Thank you. You're excused.

<THE WITNESS WITHDREW [10.26 AM]

PN6133

MR SLEVIN: I call Amanda Kumar.

PN6134

THE ASSOCIATE: If you could just state your full name and address, please?

PN6135

MS KUMAR: It's Amanda Khamani(?) Kumar, and it's 300 Elizabeth Street, Surry Hills, NSW.

<AMANDA KUMAR, SWORN [10.27 AM]

EXAMINATION-IN-CHIEF BY MR SLEVIN [10.27 AM]

PN6136

MR SLEVIN: Is your full name Amanda Khamani Kumar?‑‑‑Yes.

PN6137

Have I pronounced your middle name correctly?‑‑‑Not quite.

*** AMANDA KUMAR XN MR SLEVIN

PN6138

My apologies?‑‑‑That's all right.

PN6139

And your business address is 300 Elizabeth Street in Surry Hills in NSW?‑‑‑Yes.

PN6140

You're a forensic document examiner employed by the Department of Immigration and Border Protection, is that right?‑‑‑Yes.

PN6141

You've prepared a witness statement for these proceedings?‑‑‑Yes.

PN6142

Do you have a copy of that with you?‑‑‑I do.

PN6143

Is the document that you have 11 pages in length with 62 paragraphs?‑‑‑Yes.

PN6144

There are no annexures to your statement, is that correct?‑‑‑No.

PN6145

Before I ask you if the contents are true and correct, do you have any changes to the statement?‑‑‑Yes.

PN6146

What are they?‑‑‑At - sorry, I did have it marked - so at paragraph 43.

PN6147

What change do you have to that paragraph?‑‑‑At the time I wrote the statement I have said that I am not aware if individual flexibility arrangements have been used to pay for any forensics or business in the Department and that has since changed.

PN6148

What has changed?‑‑‑A number of people have been offered individual flexibility arrangements, including myself.

PN6149

What is the nature of the individual flexibility arrangement that you were offered?‑‑‑It's an additional payment as salary.

PN6150

What's the amount of the payment?‑‑‑It's $8000 per annum.

PN6151

When was that offered?‑‑‑20 June this year.

PN6152

Did you accept that offer?‑‑‑Yes.

PN6153

What changed in your work to give rise to that offer being made?‑‑‑Nothing.

*** AMANDA KUMAR XN MR SLEVIN

PN6154

Are there any other changes to your statement?‑‑‑There was somewhere where I put a number of document examiners and now I can't find where it is.

PN6155

Is it paragraph 9?‑‑‑Thank you. Yes.

PN6156

What's the change you'd like to make?‑‑‑So there are currently 19 active document examiners.

PN6157

With those clarifications are the contents of your witness statement true and correct?‑‑‑Yes.

PN6158

I tender the witness statement of Amanda Kumar.

PN6159

VICE PRESIDENT CATANZARITI: CPSU33.

EXHIBIT #CPSU33 WITNESS STATEMENT OF AMANDA KUMAR

PN6160

MR SLEVIN: That's the evidence-in-chief of this witness.

PN6161

VICE PRESIDENT CATANZARITI: Thank you. Mr Meehan, do you have a similar objection document?

CROSS-EXAMINATION BY MR O'GRADY [10.31 AM]

PN6162

MR O'GRADY: If it please the Commission. Ms Kumar, do you recall on what date you made your witness statement?‑‑‑I don't recall what the final date of this statement was.

PN6163

Do you know what month it was made?‑‑‑I think all of our witness statements had to be filed in – at the beginning of May, so it would've been finalised then.

PN6164

So some time before then?‑‑‑Yes.

PN6165

So the case is that there are about 18 or 20 document examiners within the Department, the integrated Department?‑‑‑As of yesterday when I looked there were 19.

*** AMANDA KUMAR XXN MR O'GRADY

PN6166

Nineteen?‑‑‑Active.

PN6167

All right. How many, if you know, forensic specialists are there?‑‑‑I believe we currently have six facial comparison specialists and four fingerprint examiners or five fingerprint examiners.

PN6168

Thank you. Are there any digital forensic specialists?‑‑‑I believe there are but they're part of the ABF, and I had no contact with any of them.

PN6169

COMMISSIONER JOHNS: Sorry, Ms Kumar, you'll just have to speak up a little bit?‑‑‑Sorry.

PN6170

Maybe come a bit forward. Yes?‑‑‑Sorry.

PN6171

That's all right.

PN6172

MR O'GRADY: Your background is with the DIAC side of the Department?‑‑‑The Department, yes.

PN6173

Yes. Currently employees covered by the DIAC agreement, so those from the side of the pre-integrated business you came from, they don't have an entitlement to a forensic specialist allowance under the agreement, do they?‑‑‑No. No.

PN6174

Are you familiar at all with the former Customs enterprise agreement?‑‑‑In that I have read parts of it as it pertains to bargaining, yes.

PN6175

You're familiar enough to be able to accept that there is no entitlement in that enterprise agreement to a forensic specialist allowance?‑‑‑May I refer to my statement?

PN6176

If you need to to answer that question?‑‑‑Yes, please. So I'm aware that in the former Customs and Border Protection that there was a clause that said that there would be a review looking at forensic specialist allowance.

PN6177

If you can't answer the question just say so. What I'm asking is, are you aware whether there was an entitlement under that agreement to a forensic specialist allowance?‑‑‑No.

*** AMANDA KUMAR XXN MR O'GRADY

PN6178

You're not aware or you know there isn't?‑‑‑It was not as part of the agreement as it was signed.

PN6179

All right. The CPSU proposed workplace determination, if accepted by this Commission, would create a new entitlement for forensic specialists covered by the DIAC agreement. Do you agree?‑‑‑Yes.

PN6180

That is to three possible tiered allowances that they currently have no entitlement to; correct?‑‑‑Yes.

PN6181

Those proposed allowances, as at 1 July 2017, are for these amounts: tier 1 $3306 per annum; tier 2 $6777 per annum; and tier 3 $9917 per annum. You're familiar enough with the proposal to confirm that?‑‑‑If those figures are as is in the proposal.

PN6182

As to which of those tiers apply that is to be determined under the CPSU proposal according to experience in digital forensics; correct?‑‑‑It was based on the arrangement that was made in the former Customs for the digital forensic specialists.

PN6183

So those requirements are experience in digital forensics, document examination, facial recognition, and in the case of tier 3, fingerprint comparison; correct?‑‑‑Yes.

PN6184

I just want to suggest by way of example how the CPSU proposal if accepted would operate in practice. I want to use an example of a DIAC employee currently at the top of APS level 5 under the DIAC agreement, and that is a classification, do you accept, in which document examiners are currently employed?‑‑‑At the present time I don't believe we have any document examiners at the APS5 level.

PN6185

Are they in the SES band?‑‑‑No.

PN6186

You have said in your statement that they're earning between 70 and $80,000; correct?‑‑‑I believe I said in my statement that ‑ ‑ ‑

PN6187

Let's have a look at paragraph 55. You say there:

PN6188

When most of us in the forensic specialist area were on salaries of about 70 to $80,000.

*** AMANDA KUMAR XXN MR O'GRADY

PN6189

Is that still the position?‑‑‑No, that's not. This was at the time that I used that example of someone who left the Department.

PN6190

An example of someone who has left?‑‑‑As I said in my statement there was a staff member who left the Department for a more lucrative position in the same field and at the time that that occurred we were on between 70 up to 80,000 for most of the document examiners.

PN6191

Let's be clear. That's your position as an example. Leaving aside that your evidence about the IFA that you've just given, what was your base salary. I withdraw that. What is your base salary?‑‑‑Eighty-five thousand, three hundred and one dollars.

PN6192

Eighty-five thousand. And in what classification under the DIAC agreement are you employed?‑‑‑I'm an APS6.

PN6193

APS6. This is the position, isn't it, in respect of the CPSU proposal that upon the making of the determination proposed by the CPSU you would receive increases to your base salary?‑‑‑Yes.

PN6194

Yes. And in addition to that you would, under the determination, be entitled to either tier 1, tier 2, or tier 3 forensic specialist allowances depending upon which of those tiers you qualify for?‑‑‑Yes.

PN6195

Have you done a calculation as to what that increase would result in by way of percentage increase upon the making of this determination as proposed?‑‑‑No.

PN6196

I think you said your level was APS level 6?‑‑‑Yes.

PN6197

Right. Your current salary, I didn't know precisely, was 80 ‑ ‑ ‑?‑‑‑5301.

PN6198

5301?‑‑‑Which is the top of the DIAC rate.

PN6199

So it's the top of the – it's presently at the top of APS level 6?‑‑‑Yes.

*** AMANDA KUMAR XXN MR O'GRADY

PN6200

Correct. If you need to look at the proposed determination say so, but the proposal is that the salary for the top of the range in APS level 6 would in effect from 1 July 2017 move to 95,946?‑‑‑I don't have a copy of the determination, but if you say so.

PN6201

Just make that assumption. In rough terms that's a 10,000 dollar per annum increase and on top of that you say you would qualify for tier 1, tier 2 or tier 3 in the allowance regime?‑‑‑For myself, probably tier 2.

PN6202

Tier 2. That is $6777 per annum?‑‑‑Yes, if that's what it says.

PN6203

So again in rough terms around 16-and-a-half thousand dollar increase per annum?‑‑‑I wouldn't say per annum.

PN6204

Ten thousand dollars – I've asked you to make the assumption about the increase of base salary under the determination, that was from 85,000 to 95,000?‑‑‑Yes.

PN6205

Or closer to 96,000. On top of that you would get a further $6777 per annum?‑‑‑Yes.

PN6206

Just to round things out but isn't that in the order of 16-and-a-half thousand to $17,000 per annum?

PN6207

COMMISSIONER JOHNS: Seventeen thousand four hundred and twenty-two.

PN6208

MR O'GRADY: I'm indebted to the Commission. Thank you. There's seventeen thousand four hundred-odd dollars on top of $85,000. That gives one the percentage increase that you would receive under the CPSU proposal. Do you accept that?

PN6209

VICE PRESIDENT CATANZARITI: 20.4 per cent increase.

PN6210

MR O'GRADY: Again indebted to the Commission?‑‑‑Thank you.

PN6211

Is there anything that I've put to you in terms of the mathematical propositions that you suggest I've got wrong?‑‑‑No.

*** AMANDA KUMAR XXN MR O'GRADY

PN6212

So under the CPSU proposal you would get from the date of commencement of the determination a 20 per cent uplift in your salary including the allowance?‑‑‑Given that I'm currently in receipt of an allowance it would not be that much in terms of the difference.

PN6213

But I'll come to that, because I've heard your evidence. But a person in your position who currently doesn't get the allowance, that would be the effect of the CPSU proposal?‑‑‑If they were to receive it at that – at tier 2.

PN6214

At tier 2, yes?‑‑‑Yes.

PN6215

And tier 1 would be, again, in very much rounded terms, $3000 less per annum?‑‑‑Yes.

PN6216

Yes. And if they were tier 3 it would be, again in rounded terms, $3000 more per annum?‑‑‑Yes.

PN6217

The proposal of the CPSU is, am I right, in relation to the allowances they would increase by two-and-a-half per cent on each of 1 July 2018 and 2019; correct?‑‑‑I don't have a copy of the determination in front of me, but I believe so, yes.

PN6218

The position with some of the former Customs employees is that they have been in receipt of allowances of this type pursuant to what you described earlier as an IFA. Are you aware of that?‑‑‑I am not aware of that currently in existence, but if you say it is I will agree with that.

PN6219

In paragraph 43 you say, in the second sentence:

PN6220

However I am aware that previous practice in the ACBPS prior to the recommendations of the joint working party was such that individual flexibility arrangements were used to enhance the salary for forensic officers, but I am unsure if this practice is adopted in the DIBP.

PN6221

So do I take it from that you were aware there was a previous practice within Customs?‑‑‑Yes.

PN6222

All right. Your evidence you've given today is that that practice, at least in your case, and that of a number of people is to the same effect, that is, an IFA has been offered?‑‑‑Yes.

*** AMANDA KUMAR XXN MR O'GRADY

PN6223

There's no compulsion, do you accept, for the Department to enter into any such IFA with any employee in respect of a specialist forensic allowance?‑‑‑No.

PN6224

So in truth do you accept this; what is being proposed by the CPSU is the introduction of a legally enforceable entitlement under the workplace determination in respect of which neither former DIAC employees or Customs employees presently have?‑‑‑Not under the current arrangements, no.

PN6225

The CPSU proposal, which you've set out in paragraph 35 of your statement ‑ ‑ ‑?‑‑‑Yes.

PN6226

I suggest that paragraph 640, just pause there to suggest you can see that in the last subparagraph of paragraph 36, do you see that?‑‑‑Yes.

PN6227

It provides for the extension of eligibility for this proposed allowance to other employees if the Department expands its forensic capability to additional fields?‑‑‑Yes.

PN6228

That's the proposal. What fields do you understand are being referred to there?‑‑‑If the Department decided to employ forensic experts in any other field other than document examinations, visual forensics, facial comparison or fingerprint.

PN6229

All right. So any other field that one might describe as a forensic capability the proposal is that the same tiered allowances would apply; is that it?‑‑‑Following consultation with the affected employees to determine the appropriate requirements.

PN6230

Yes. Yes?‑‑‑Yes.

PN6231

You can't identify any particular forensic capability that is contemplated?‑‑‑I'm not aware of what the Department is contemplating however given the moves towards home affairs that are proposed it is possible that other forensic specialties such as DNA or biology or trace evidence may – experts may be employed by the Department.

PN6232

But at the moment you are unable to identify any particular skill or qualification which would engage what is contemplated in clause 640?‑‑‑As I said I'm not aware of what the Department plans to do in this space.

*** AMANDA KUMAR XXN MR O'GRADY

PN6233

All right. Can you explain to the Commission what the rationale is for those three specific amounts in tiers 1, 2 and 3 to expand to other forensic capabilities in those circumstances?‑‑‑Sorry, can you repeat the question?

PN6234

I'll put it differently. You don't know, as you sit here today, what forensic capabilities are being contemplated?‑‑‑At a high level, no.

PN6235

I understand that you advance as the principle behind these allowances are to recognise special skill and experience or qualifications; correct?‑‑‑Yes.

PN6236

But you can't identify any particular skill or qualification in relation to which clause 640 would apply?‑‑‑As I said I'm not aware of if the Department plans to expand into other fields.

PN6237

Nothing further.

PN6238

VICE PRESIDENT CATANZARITI: Thank you.

RE-EXAMINATION BY MR SLEVIN [10.50 AM]

PN6239

MR SLEVIN: Ms Kumar, you were taken through your current base salary arrangements?‑‑‑Yes.

PN6240

Yes. As I understand your evidence your base salary is $85,301 at the APS6 level?‑‑‑Yes.

PN6241

And you were getting the allowance, or you've been getting that allowance since June of a further $8000?‑‑‑Yes.

PN6242

What's your understanding as to what will happen to that $8000 if the CPSU proposal is granted?‑‑‑I would imagine that the IFA would cease.

PN6243

So the $8000 would become the tier 2 payment; is that your understanding?‑‑‑Yes.

PN6244

You'd receive a pay increase in the order that Mr Meehan explained to you. You understand that?‑‑‑Yes.

*** AMANDA KUMAR RXN MR SLEVIN

PN6245

How long has it been since you've had a pay increase?‑‑‑The last pay increase was 5 July, I believe, 2013.

PN6246

You were asked some questions about skill and qualification. I'm not sure whether you answered this earlier when I asked, so I'll – just to clarify. In the IFA that you referred to did it identify the reason that you were given that allowance?‑‑‑It said in recognition of the specialist skills and experience that I hold.

PN6247

Nothing further. Thank you.

PN6248

VICE PRESIDENT CATANZARITI: Thank you, Ms Kumar. You're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [10.52 AM]

PN6249

MR SLEVIN: I call Mark Fontana.

PN6250

THE ASSOCIATE: Just state your full name and address.

PN6251

MR FONTANA: Mark Fontana, 300 Elizabeth Street, Sydney, Level 7.

<MARK FONTANA, AFFIRMED [10.54 AM]

EXAMINATION-IN-CHIEF BY MR SLEVIN [10.54 AM]

PN6252

MR SLEVIN: Is your name Mark Fontana?‑‑‑Yes.

PN6253

Your business address is level 4, 300 Elizabeth Street in Sydney?‑‑‑No, I correct that. It's now level 7, sir.

PN6254

Seven. You're a leading border force officer/sponsor monitoring officer; is that correct?‑‑‑That's correct.

PN6255

You're employed in the Department of Immigration and Border Protection?‑‑‑Yes.

PN6256

You've prepared a statement for these proceedings, Mr Fontana?‑‑‑Yes.

*** MARK FONTANA XN MR SLEVIN

PN6257

Do you have a copy of the statement?‑‑‑Yes, I do.

PN6258

So you have two documents. What's the second ‑ ‑ ‑?‑‑‑I have a visual impairment, so I have to go and print one up in a larger font for myself.

PN6259

One document is the document as filed?‑‑‑Yes, that's that one there.

PN6260

And the other document is in the larger ‑ ‑ ‑?‑‑‑And that's mine in a larger size font so that I can read it a bit better. I went through the transcript and I found that I needed to make a couple of amendments.

PN6261

When you say the transcript you're talking about the statement?‑‑‑Sorry, my statement.

PN6262

Yes. That's all right?‑‑‑Yes. I noticed that at 42 it doesn't read correctly. It should read, "I am" at the start.

PN6263

So, it should read at paragraph 42:

PN6264

I am not confident that the DIBP draft WD proposal on pay equity will facilitate this.

PN6265

?‑‑‑Yes.

PN6266

You said there were two changes?‑‑‑Yes.

PN6267

What's the other one?‑‑‑So paragraph number 61.

PN6268

VICE PRESIDENT CATANZARITI: Just one second. The document that we have is completely blacked out to the words "not confident".

PN6269

MR SLEVIN: Yes. And so the words "I am" go before the words "not confident".

PN6270

VICE PRESIDENT CATANZARITI: So this is where the ‑ ‑ ‑

*** MARK FONTANA XN MR SLEVIN

PN6271

DEPUTY PRESIDENT KOVACIC: Preceded by the full stop half-way through it.

PN6272

MR SLEVIN: And the second change, Mr Fontana?‑‑‑It's at 61 and it's "I am concerned" because otherwise it sort of doesn't flow. It doesn't make sense, because I ‑ ‑ ‑

PN6273

No, that's fine. Thank you, Mr Fontana. So with those two changes are the contents of that statement true and correct?‑‑‑Yes.

PN6274

I tender the witness statement of Mark Fontana.

PN6275

VICE PRESIDENT CATANZARITI: CPSU 34.

EXHIBIT #CPSU34 WITNESS STATEMENT OF MARK FONTANA

PN6276

MR SLEVIN: That's the evidence-in-chief of this witness.

PN6277

VICE PRESIDENT CATANZARITI: Yes. We don't have any objections on the file from Mr Meehan.

PN6278

MR SLEVIN: If it please the Commission.

CROSS-EXAMINATION BY MR O'GRADY [10.57 AM]

PN6279

MR O'GRADY: Mr Fontana, do you see paragraph 18 of your statement on page 3?‑‑‑Yes.

PN6280

Perhaps just if you wouldn't mind reviewing paragraph 17?‑‑‑Mm-hm. Have you read paragraph 17?‑‑‑Yes.

PN6281

And 18?‑‑‑Yes, I have. Yes.

PN6282

Thank you. In paragraph 17 you're referring to what you describe as an interesting term in the bargaining process in July 2015. Do you see that?‑‑‑Yes.

*** MARK FONTANA XXN MR O'GRADY

PN6283

I just want to be sure it's July 2015, is it, in respect of which you are giving the evidence concerning the presence of Mr Stokes who you identify in both paragraph 17 and 18?‑‑‑Yes. I have to be honest with you, I've gone with July, but it may have preceded that. I think so. Only that we had patchy bargaining over long periods ,so it was around that time, because I recall that the messaging was the Department was integrating and may have been a month or two earlier. I'm not sure. But I think it was July. I mean, I ‑ ‑ ‑

PN6284

You've described Mr Stokes as one of the senior negotiators?‑‑‑Mm.

PN6285

He was involved in negotiations in early 2015 in a technical capacity; do you accept that?‑‑‑I don't think that's the view I held.

PN6286

He was led, was he not, by Marion Grant?‑‑‑Well, we had Marion Grant and we had a couple of others along the way.

PN6287

David Leonard?‑‑‑David Leonard.

PN6288

And Judith O'Neal(?)?‑‑‑Yes, I think at ‑ sorry, my mouth's a bit dry. I have medication so ‑ ‑ ‑

PN6289

In all the bargaining in which Mr Stokes was involved there was someone from a senior SES position leading him at all material times, agreed?‑‑‑Yes, yes, I would say so, yes, yes, yes.

PN6290

What I want to suggest to you is there was, in fact, no bargaining meetings in July 2015?‑‑‑Well, as I suggested to you, it may have been a bit earlier than that. One recollection that it may have been May. When I talk about ‑ here I say, "Integrated on July 2015." That was the point in time at which the messaging ‑ well, the official date of the commencement of our two departments becoming one, the Immigration and Border Force and we had bargaining around that time. On recount it was probably a bit before that. I know that we were there in around Easter time in May and probably into June. So I think my statement ‑ in this respect I'm referring to DIBP integrating in 2015 and whatever bargaining was around that time. That's my recollection.

PN6291

The true position is this, Mr Fontana, that Mr Stokes never made the comments that you suggest he made in July 2015 or at all, did he?‑‑‑He did.

*** MARK FONTANA XXN MR O'GRADY

PN6292

You just can't remember when?‑‑‑Well, I don't remember the exact date. I can tell you the office that we did it in and I can tell you the context of the situation. That was on the ground floor at Constitution Avenue because we weren't familiar with those offices. We had conducted all of our bargaining previous to that at Belconnen, a couple of other rooms in other areas. But we'd come to this new room area and the Department had turned up with a bunch of paperwork with policies and their version of the agreement and every clause that we went through, Mr Stokes was handing out revisions of the clauses and such, and that's when it happened. And as I say, it may have been prior to July. I'm referring to July there as when we integrated so my recollection, you know, is probably a bit hazy but around about that time. It could have been June or the end of May, I'm not sure.

PN6293

COMMISSIONER JOHNS: But if it happened post‑integration it would have been after July, is that right?‑‑‑I think so. Maybe my wording here is not clear enough. In my mind I'm referring to when we integrated and the bargaining at that time. So it was an impending thing and I know that prior to the 2015 integration we'd already agreed to come together in a collaborative team and so, you know, I think it might have kicked off in February and then we did some in April and then May and then maybe June. And maybe we didn't go in July because it was, like, school holidays or whatever but that's my recollection.

PN6294

MR O'GRADY: There weren't meetings in June or July. Your recollection is a bit hazy, is it ?‑‑‑My recollection about the date is hazy because the amount of times that we skipped up and down to Canberra and, you know, like ‑ you know, you're down for a few days, you're back home again, you're whatever. I recall the actual meeting when the ‑ where the place was that it was said and the inference that it was said with because I picked up my pen and I wrote on my pad, "RORTS!" with exclamation marks. And later on I had a discussion with my colleagues about, you know, feeling offended about, you know, a claim by my employer being made like that about something that had been ratified by a Commission previously that we had in an agreement. It's like, "Well, they're obviously not here to, you know, bargain with us."

PN6295

How long after the bargaining commenced for a single portfolio EO were you involved in the negotiation?‑‑‑For a single portfolio EA? Well, most of the time I don't ‑ I may have had an absence, I'm not sure. I don't think I had any until we ceased negotiation although I did ‑ I went on leave in 2016 and I did a trip around Australia with my wife. And I'm not sure that there may have ‑ whether we ceased at the beginning of 2016 or whether there was some other meetings while I was away and somebody stood in for me or not. I was more interested on my round Australia holiday at the time.

PN6296

Did you come across Mr Stokes again in bargaining after whatever date it is you say this comment was made?‑‑‑No, he got knocked off the team. I think they put him into a different job or something and they had a different secretariat. They moved a couple of other people in and eventually Murali came along and we went and had the meetings at a different location. There was another lady in between who came from ‑ I can't think of her name at the Secretary came across.

*** MARK FONTANA XXN MR O'GRADY

PN6297

Thank you. Now, I want to ask you about flexible working arrangements. You deal with this in paragraph 57 and following?‑‑‑Yes, okay.

PN6298

One of the criticisms you make in particular arises in ‑ well, you deal with it in paragraph 62 of your statement. It relates to clause 3.19 of the Department's proposed determination. Just take a moment to read that.

PN6299

VICE PRESIDENT CATANZARITI: Do you need any assistance in reading that?‑‑‑No, I've ‑ yes, thank you, I've got to the bottom of it now, yes.

PN6300

MR O'GRADY: Your criticism, am I right, is that the Department seeks a provision that makes flex-time arrangements subject to approval by the secretary conditional upon operational requirements being met and an efficient service continuing to be provided to the public, is that right?‑‑‑That's the view I hold, yes.

PN6301

You take the view, do you, that the approval of the secretary should be given unless, I think in your words, there are genuine reasons for not doing so? Is that the point of difference?‑‑‑I take the view that a determination should be made based on whatever those reasons are, depending on the situation. If the Secretary were to have an absolute mandate about whether people had flex-time or not in this instance, in my understanding of it, it would pretty much mean that they could say, "We've now determined that you will go to standard hours and we're not offering you flex-time anymore."

PN6302

Well, you say in paragraph 63:

PN6303

Any attempt to remove it would put a great deal of disadvantage on those who use its facility to manage their work/life balance.

PN6304

You don't give any evidence of any suggestion or motive on the part of the Department to do away with flexible working arrangements, do you?‑‑‑My statement is as I wrote it at the time and, you know, I've affirmed my statement. My view is ‑ and looking at that, in respect of that matter, during the process I heard things about operational requirements come up all the time. So I do hold a concern that, given the former Customs environment having an operational environment that requires fairly standardised hours and not a great deal of flex workers, that potentially that by that determination, by the way that determination is written in respect of those flexible working arrangements, that the Secretary could potentially deem that flex-time hours were no longer required and standard operational hours would be required.

*** MARK FONTANA XXN MR O'GRADY

PN6305

Do you say the Secretary should be restricted from making a determination to require standard hours, notwithstanding that operational requirements might dictate that is necessary? Is that the position?‑‑‑Can you point to me where you're ‑ what part of my clause you're saying?

PN6306

Your criticism is ‑ ‑ ‑?‑‑‑Which clause are you talking about?

PN6307

Clause 3.19 of the Department's proposal?‑‑‑Right, okay, yes.

PN6308

Which provides that the Secretary's approval is conditional upon operational requirements being met and an efficient service continuing to be provided to the public. I put the suggestion another way. What is wrong with those criteria governing the question of whether flexible working arrangements should be available?‑‑‑I think what's wrong is that in my view that if it's not absolutely clear about how those things might differ from portions of the workforce, that there may be a great number of staff impacted by a decision to remove flex‑time arrangements.

PN6309

You say, do you ‑ does it follow from that that your concern is that the determination should avoid any adverse affectation on employees irrespective of the operational requirements of the Department or whether the efficient service to the public will be impaired?‑‑‑Well, I don't read the same words you just said so ‑ ‑ ‑

PN6310

I'm not talking about words. I'm asking you to explain the view you have?‑‑‑No, I think operational requirements might be a ‑ well, might be required in particular work areas where a service delivery standard is required to meet public expectations, to meet the Department's overall production of whatever that work is. So an airport officer at the airport, you know, marshalling passengers or stamping passports, checking identity of people as they come through, that type of work, they run shifts and there's an operational requirement for those positions, those jobs.

*** MARK FONTANA XXN MR O'GRADY

PN6311

Well, just pausing there. That example you've given, what is wrong with the notion that operational requirements should be a criteria taken into consideration in determining whether the Secretary should approve flexible working arrangements?‑‑‑Well, in my view, not every ‑ well, I see, not everybody does those jobs in the Department. A lot of people sit behind desks where they could work from 6 o'clock in the morning until midday or whatever. So if the view was held that the determination was made as a blanket decision for everybody in the Department to abide by strict operational requirements or a strict determination that there will only be, you know, standardised hours then I think it would disadvantage a lot of people that already use flex‑time and use it to attain work/life balance. And I hear that concern come to me from union members quite often.

PN6312

Am I right then, your opinion is premised on the notion that the Secretary would make a blanket determination across the entire Department?‑‑‑The Secretary could make a blanket determination if the workplace determination said he could. I don't know what's in the mind of the Secretary.

PN6313

I want to ask you about Christmas close down arrangements. You deal with those in paragraph 74, do you see that?‑‑‑Yes.

PN6314

You've attempted, I think, in that paragraph to mark out what you see as the difference between the competing proposals. Do you see that?‑‑‑Mm‑hm.

PN6315

The CPSU provision provides that where at least 75 per cent of the employees in a team or work group agree, and the Secretary approves, the team or work group can observe a close down over Christmas?‑‑‑Yes, that's right.

PN6316

Is the essence of what is being sought that the majority of employees should have the say via reason of a majority vote as to whether the Department can close down a part of its operations over the Christmas period?‑‑‑I think where it's operationally possible, absolutely, yes. It may not be operationally possible everywhere, but that's a key clause in our agreement and it stemmed from not being able to get a mandated Christmas close down from a couple of agreements ago where we sought a mandated Christmas close down and the Department didn't want to agree to that. So we agreed to a 75 per cent vote for the work area, and then work out your arrangements - flex‑time or rec leave, or whatever you wanted to take - if the work group decided that they wanted to do that.

PN6317

Fundamentally, you don't accept, am I right, that the employer has the right to determine whether or not it operates its business over Christmas?‑‑‑No, I wouldn't say that at all. I wouldn't characterise it like that. I'd actually say that the premise of what we operate under, the agreement at the moment, allows work groups that are not, you know, essential to operation to be able to make their own determination about being able to have a Christmas close down should the majority of the group wish to have a Christmas close down.

*** MARK FONTANA XXN MR O'GRADY

PN6318

Isn't that another way of saying if a group of employees, by majority, vote to take the close down, then the business has to close down in respect of at least those employees?‑‑‑Well, my view is no, because that's really about a work group that's able to do that. You clearly can't do it in a shift environment that already has an existing roster and a requirement to cover a 24‑hour day period, or a 12‑hour a day period; or two shifts - one morning, one afternoon shift, whatever; you can't do that, because you need to cover those time. But in a work environment where you've got administrative officers that principally - and I was an administrative officer before I became a uniformed officer - where people work flexible working hours from 7 to 7, you could do that quite easily, and as long as you have a contingency plan in place, and the Department holds contingency plans for every business area to operate on minimal and skeleton staff, and that's the same contingency plan that you'd apply for a Christmas close down. So you'd have one or two people available to do reporting and whatever in a business area, and to ensure that if there's anything that needs further referral or needs to be dealt with in a quick and responsive manner that it would be dealt with.

PN6319

What I want to try and elucidate for the benefit of the Commission is precisely where the parties are apart, and I want you to tell me if I'm wrong: is the fundamental issue that you contend for the entitlement of a majority of the employees to determine when the area in which they work should close down, or if it should close down over Christmas, and further, that that not be a matter for the determination of the Department alone?‑‑‑Well, I think I've tried to explain to you what my view is of this, and that is that given my past experience with the Department in an administrative area and dealing with those matters and not being operational, that to maintain that access for employees within our agreement to be able to make those decisions, in areas where they're not operationally required to be on duty, that it would be my position that we do maintain a clause in our agreement that allows for those work areas to vote on it and decide whether they have a Christmas close down.

PN6320

DEPUTY PRESIDENT KOVACIC: Mr Fontana, who makes the decision as to whether an area needs to work or not?‑‑‑Again, as I elucidated before, your Honour, it was in respect of whether you're an operational area or a non‑operational area.

PN6321

But who makes that decision?‑‑‑I think those things are already pre‑determined in respect of the business needs and outcomes; for instance, it wouldn't be possible - and usually it's a senior management decision I would say - so putting my administrative service officer hat on back again - I'm only new to operational work - an SES or from whatever division or program area you work within would probably make that decision and say that, but - - -

PN6322

Aren't they invariably making that decision under a delegated authority from someone such as the Secretary?‑‑‑Yes, I assume so.

*** MARK FONTANA XXN MR O'GRADY

PN6323

So in those circumstances, how is what you say in paragraph 75 where in essence you've conceded that it's the Secretary or his delegate - or her delegate, depending on whoever is the Secretary - that makes the decision, how is that problematic, given that that seems to be the scenario as to how it works now?‑‑‑Well, I guess I was considering in respect of those people that had had access to that ability to make that determination within their work group in our current agreement, our current environment.

PN6324

Thanks.

PN6325

MR O'GRADY: Nothing further.

PN6326

VICE PRESIDENT CATANZARITI: Any re-examination, Mr Slevin?

PN6327

MR SLEVIN: No re-examination, thank you.

PN6328

VICE PRESIDENT CATANZARITI: We will take a short adjournment before the last witness. Have the parties had a discussion about the timetable for submissions?

PN6329

MR O'GRADY: Certainly Mr Slevin and I have had a discussion, your Honour, and I think as a result of that discussion we are in broad agreement, but we'll take the opportunity over the break to confirm that that's the case.

PN6330

VICE PRESIDENT CATANZARITI: Thank you. We'll take a 20‑minute adjournment.

<THE WITNESS WITHDREW [11.23 AM]

SHORT ADJOURNMENT [11.23 AM]

RESUMED [11.50 AM]

PN6331

VICE PRESIDENT CATANZARITI: Yes, Mr Slevin, who is the next witness?

PN6332

MR SLEVIN: I call Stacey Harris.

PN6333

VICE PRESIDENT CATANZARITI: Is this the last witness?

PN6334

MR SLEVIN: It is. There's three documents that I will tender and close my case.

<STACEY HARRIS, AFFIRMED [11.53 AM]

*** MARK FONTANA XXN MR O'GRADY

EXAMINATION-IN-CHIEF BY MR SLEVIN [11.53 AM]

PN6335

MR SLEVIN: Is your full name Stacey Harris?‑‑‑Yes.

PN6336

And your business address is Level 15 Casselden Place, 2 Lonsdale Street in Melbourne?‑‑‑Yes.

PN6337

And you're a branch coordinator/case management and status resolution officer working for the Department of Immigration and Border Protection?‑‑‑Yes.

PN6338

You have prepared a statement, Ms Harris, for these proceedings?‑‑‑Yes.

PN6339

Do you have a copy of that with you?‑‑‑Yes.

PN6340

I just ask you to identify the document. That's 25 pages and 152 numbered paragraphs?‑‑‑Yes.

PN6341

The annexures take it to 130 pages, is that correct?‑‑‑Yes.

PN6342

The page numbers are on the bottom right-hand side?‑‑‑Yes. Yes.

PN6343

Before I ask you whether the contents are true and correct do you have any changes to that?‑‑‑Yes, I do.

PN6344

What are those?‑‑‑Paragraph 6 and 7 states my title in the union as section secretary. That was correct at the time, but since 1 July it's now changed to section president. Paragraph 8, the second sentence, delete "of" and add "the" after within, so it reads "changes in workload within the branch". Paragraphs - - -

PN6345

I am sorry, I will just take them one at a time. So it's the second line in paragraph 8 you want to delete the word "of"?‑‑‑Yes, and add "the" after within and before branch.

PN6346

And the next one?‑‑‑Is paragraphs 22 and 23, change the acronym DIPB to DIBP.

*** STACEY HARRIS XN MR SLEVIN

PN6347

I think we might all be guilty of that once or twice, Ms Harris?‑‑‑Paragraph 27, the first sentence, delete "and" before about, "I'm particularly concerned", delete that next "and".

PN6348

Yes?‑‑‑Paragraph 38, in the second line it says "strategic border command", it needs to be changed to "border management division". Paragraph 59, the second sentence is a little bit unclear, it needs to be changed to "as and when consultation is required during these changed processes it is entered into".

PN6349

I am sorry, so "as and when consultation" - - -?‑‑‑Is required during these changed processes it is entered into.

PN6350

It is entered into?‑‑‑Yes. And in the fourth line there's another DIPB. 65B there's a superfluous semi-colon, that needs to be removed otherwise it doesn't make any sense.

PN6351

Thank you?‑‑‑Paragraph 70 on the third line you've got a change "affect" to "affected". Paragraph 72 in the first line change "if" needs to be "it".

PN6352

Thank you?‑‑‑Paragraph 73 in the first - the last word of the first line and the first word of the second line needs to be changed from "may not" to "need not", because that's the exact words in the Department's WD.

PN6353

Yes?‑‑‑And then the last one is paragraphs 132, 133 and 136. Where it says "flex debts" it needs to be "flex debit" because they're two different things. Yes.

PN6354

I am sorry, what were those paragraph numbers?‑‑‑Paragraph 133 - 132, sorry - 133 and 136 where it says "flex debt" it's "flex debit". It just needs - that's it.

PN6355

So with those clarifications, Ms Harris, are the contents of your witness statement true and correct?‑‑‑Yes.

PN6356

I tender the witness statement of Stacey Harris.

EXHIBIT #CPSU35 STATEMENT OF STACEY HARRIS

PN6357

MR SLEVIN: That's the evidence-in-chief of this witness.

*** STACEY HARRIS XN MR SLEVIN

PN6358

VICE PRESIDENT CATANZARITI: Do we have any objections? Yes, Mr O'Grady.

CROSS-EXAMINATION BY MR O'GRADY [11.59 AM]

PN6359

MR O'GRADY: Ms Harris, you give some evidence about an incident at an early stage during the bargaining concerning a Mr Farrell - there's no need for you to go to your statement - concerning Mr Farrell?‑‑‑Okay. Yes.

PN6360

The fact is that was a one off incident that was sorted out between Ms Cosson and Ms Hartman at the time, wasn't it?‑‑‑Yes.

PN6361

No further questions. Thank you.

PN6362

MR SLEVIN: Nothing in re-examination.

PN6363

VICE PRESIDENT CATANZARITI: Thank you, you're excused.

<THE WITNESS WITHDREW [11.59 AM]

PN6364

MR SLEVIN: At the close of the Department's evidence changes were made to the economic evidence. Our expert witness on those matters, Professor Watts, has consider that material and provided a third statement. I have provided that to my friend. I understand there are no objections. So I tender the third statement of Professor Watts.

EXHIBIT #CPSU36 THIRD STATMENT OF PROFESSOR WATTS

PN6365

VICE PRESIDENT CATANZARITI: Is that correct, Mr O'Grady, no objections?

PN6366

MR O'GRADY: No, there's no objections and there's no requirement for Professor Watts to attend for cross-examination, your Honour.

*** STACEY HARRIS XXN MR O'GRADY

PN6367

MR SLEVIN: On the last occasion or the last set of hearing dates I indicated that we would do some further work on exhibit CPSU8. That further work involved breaking down the matters sought in the - actually I withdraw that. Exhibit CPSU8 is the DIAC agreement marked up to identify the existing content of the agreement, the agreed content and the modifications sought by the CPSU. We have broken down the modification sought by the CPSU to identify which of those are actually provisions from the Customs agreement. So it's just a further clarification of the changes that our workplace determination seeks. I tender that as a replacement to CPSU8.

PN6368

VICE PRESIDENT CATANZARITI: All right. So you want CPSU8 replaced?

PN6369

MR SLEVIN: Yes.

PN6370

VICE PRESIDENT CATANZARITI: Have you had a chance to look at this one, Mr O'Grady?

PN6371

MR O'GRADY: No, I haven't, your Honour, it has just been given to me now, but really it's a matter for submissions. I am happy for it to be marked, but it's really going to be a matter for submissions.

PN6372

MR SLEVIN: Finally in the cross-examination of Mr Loughnan my learned friend Mr Meehan tendered an email chain between his instructing solicitor and my instructing solicitor. The email chain was incomplete and so I seek to tender the final email in that chain of emails, which is an email from my instructor Mr Rich to Ms Futol on 4 April 2017. I tender that.

PN6373

MR O'GRADY: Can I just confirm that that is an email from Ms Futol to Mr Rich, copied to Mr Vermeesch, subject "Re release of delegates" dated 4 April 2017 at 9.49 am.

PN6374

VICE PRESIDENT CATANZARITI: Yes, is that - - -

PN6375

MR SLEVIN: That's correct.

EXHIBIT #CPSU37 EMAIL FROM MS FUTOL TO MR RICH DATED 04/04/2017

PN6376

MR SLEVIN: That's the evidential case of the CPSU.

PN6377

MR BAKHAAZI: If it please the Bench I will tender the statement of Christopher Noel George Regan which contains five pages and annexures of 367 pages. I will also tender the submission of Dominic Worthington which contains six pages. This is material already filed. There's no cross-examination by the Department.

EXHIBIT #AIMPE2 STATEMENT OF CHRISTOPHER NOEL GEORGE REGAN AND ANNEXURES

PN6378

MR BAKHAAZI: Thank you. That's the case for AIMPE.

PN6379

MR O'GRADY: Your Honour, there are schedules of outcomes of the objections process which are quite important in respect of both witnesses which we will arrange to have given to your associate.

PN6380

VICE PRESIDENT CATANZARITI: Thank you.

PN6381

MR O'GRADY: The key thing being that paragraph 8 of Mr Regan's statement goes only in as submission and the entire statement of Mr Worthington only goes in as submission.

EXHIBIT #AIMPE3 STATEMENT OF DOMINIC WORTHINGTON

PN6382

MR BAKHAAZI: That's the case for AIMPE.

PN6383

VICE PRESIDENT CATANZARITI: Thank you, Mr Bakhaazi.

PN6384

MS RYAN: Thank you, your Honour. I have prepared a statement for these proceedings. The statement consists of five pages, 26 paragraphs with attachments, it's a total of 159 pages. I tender that.

EXHIBIT #RYAN1 STATEMENT OF MS RYAN WITH ATTACHMENTS

PN6385

MR O'GRADY: Your Honour, just again the statement of Ms Ryan was subject to objections and there were outcomes that a number of parts of the statement, the whole of paragraph 16, one sentence in paragraph 19 and some words in paragraph 20 are all received as submission rather than evidence and I will have that schedule handed to Your Honour's associate.

PN6386

COMMISSIONER JOHNS: Ms Ryan, have we already marked your outline of submissions?

PN6387

MS RYAN: Yes, we have.

PN6388

COMMISSIONER JOHNS: Have we already marked that? I don't know that we have.

PN6389

MS RYAN: No. Sorry, my apologies.

PN6390

COMMISSIONER JOHNS: So maybe your outline of submissions should be separately marked to your witness statement.

PN6391

MR O'GRADY: I don't think any of the outlines are marked, your Honour. Can I also just make a correction. I think I identified the three parts of Ms Ryan's statement to which objection is taken. I indicated that they were received as submission. I correct that, they were received as opinion and belief only. I do apologise.

PN6392

VICE PRESIDENT CATANZARITI: Thank you, Mr O'Grady. Mr Holmes?

PN6393

MR HOLMES: I wasn't sure whether you wanted mine because Mr O'Grady (indistinct) submitted as a submission and not as evidence, and you just said that you weren't taking submissions.

PN6394

MR O'GRADY: Just to assist Mr Holmes there, your Honour, the outcome of the objections process was that Mr Holmes's witness statement in full is regarded as submission rather than evidence.

PN6395

VICE PRESIDENT CATANZARITI: That's okay, it won't be put in until we get to the submission stage. The parties were having discussion about a timetable. We will entertain the timetable, but then I will follow with some comments.

PN6396

MR O'GRADY: Thank you, your Honour. Subject obviously to the availability of the Full Bench the parties had in mind that there be a suitable date on which all parties file comprehensive written submissions being 1 March 2018, and again subject to the availability of the Commission that the matter be then listed for two days, hopefully on 19 and 20 March.

PN6397

VICE PRESIDENT CATANZARITI: Yes. The Full Bench is not minded at this point for the reasons I will make in a moment to actually list 19 and 20 March.

PN6398

MR SLEVIN: There is another matter and that arises from the Public Service Act determination that I handed you this morning.

PN6399

VICE PRESIDENT CATANZARITI: I am going to make a comment about that in a moment. So why don't I make my comment first and see where we are at. This statement will be subsequently published. With regard to the Australian Institute of Marine and Power Engineers application for an interim wage increase of 2 per cent pending finalisation of the workplace determination for the Department of Immigration and Border Protection we thank the parties for their detailed written and oral submissions.

PN6400

We have had regard to those submissions, but in view of the Home Affairs Non-SES Moving Employees Determination 2017, the Home Affairs determination, we consider that granting an interim increase would effectively be a leap into the unknown, given that there is no material presently before the Commission regarding the terms and conditions of employment of those employees who will be covered by the determination. We have therefore decided not to grant the application.

PN6401

Our reasons for not granting the application will be detailed in our decision regarding this workplace determination. Finally, in view of the Home Affairs Department we propose that DP Kovacic convene a conference of the parties in early 2018 to explore in further detail the implications of the establishment of the Department of Home Affairs for the future progress of this matter. Yes, Mr O'Grady.

PN6402

MR O'GRADY: That is an advisable course and we take that on board of course, your Honour, thank you. We are indebted to the Full Bench.

PN6403

VICE PRESIDENT CATANZARITI: It obviously won't interfere with your preparation to the 1 March date. We think because of other events we need to keep everything more fluid.

PN6404

MR O'GRADY: Very much so, sir, and we will be in touch with Kovacic DP's chambers about an appropriate date.

PN6405

VICE PRESIDENT CATANZARITI: Thank you. Anything further, Mr Slevin?

PN6406

MR SLEVIN: No, that covers what I was going to say.

PN6407

VICE PRESIDENT CATANZARITI: Any other parties?

PN6408

MR BAKHAAZI: Given the circumstances say after 1 March and after my understanding the Department of Home Affairs will be announcing some other determination in the next two days, is the Commission mindful of revisiting this application after 1 March and after - what we know about (indistinct) Home Affairs?

PN6409

VICE PRESIDENT CATANZARITI: What we have done is we are relisting the matter, Mr Bakhaazi, for early in the new year and have an opportunity to look at the implications of what's happened with Home Affairs. That's the relevant time to have those discussions.

PN6410

MR BAKHAAZI: As the Commission pleases.

PN6411

VICE PRESIDENT CATANZARITI: Anything, Ms Ryan?

PN6412

MS RYAN: No.

PN6413

VICE PRESIDENT CATANZARITI: Mr Holmes? Thank you. It then remains to wish everybody a good Christmas and a good new year and hopefully 2018 will be good for everyone. The Commission is adjourned.

ADJOURNED TO A DATE TO BE FIXED [12.12 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CPSU31 DETERMINATION DOCUMENT ............................ PN6079

SUSAN FAY JONES, AFFIRMED.................................................................. PN6082

EXAMINATION-IN-CHIEF BY MR SLEVIN............................................... PN6082

EXHIBIT #CPSU32 WITNESS STATEMENT OF SUSAN JONES........... PN6094

CROSS-EXAMINATION BY MR O'GRADY................................................ PN6097

THE WITNESS WITHDREW.......................................................................... PN6132

AMANDA KUMAR, SWORN.......................................................................... PN6135

EXAMINATION-IN-CHIEF BY MR SLEVIN............................................... PN6135

EXHIBIT #CPSU33 WITNESS STATEMENT OF AMANDA KUMAR... PN6159

CROSS-EXAMINATION BY MR O'GRADY................................................ PN6161

RE-EXAMINATION BY MR SLEVIN........................................................... PN6238

THE WITNESS WITHDREW.......................................................................... PN6248

MARK FONTANA, AFFIRMED..................................................................... PN6251

EXAMINATION-IN-CHIEF BY MR SLEVIN............................................... PN6251

EXHIBIT #CPSU34 WITNESS STATEMENT OF MARK FONTANA.... PN6275

CROSS-EXAMINATION BY MR O'GRADY................................................ PN6278

THE WITNESS WITHDREW.......................................................................... PN6330

STACEY HARRIS, AFFIRMED...................................................................... PN6334

EXAMINATION-IN-CHIEF BY MR SLEVIN............................................... PN6334

EXHIBIT #CPSU35 STATEMENT OF STACEY HARRIS......................... PN6356

CROSS-EXAMINATION BY MR O'GRADY................................................ PN6358

THE WITNESS WITHDREW.......................................................................... PN6363

EXHIBIT #CPSU36 THIRD STATMENT OF PROFESSOR WATTS....... PN6364

EXHIBIT #CPSU37 EMAIL FROM MS FUTOL TO MR RICH DATED 04/04/2017............................................................................................................................... PN6375

EXHIBIT #AIMPE2 STATEMENT OF CHRISTOPHER NOEL GEORGE REGAN AND ANNEXURES...................................................................................................... PN6377

EXHIBIT #AIMPE3 STATEMENT OF DOMINIC WORTHINGTON..... PN6381

EXHIBIT #RYAN1 STATEMENT OF MS RYAN WITH ATTACHMENTS PN6384

Fair Work Commission Transcripts

B2016/1232, Transcript of Proceedings [2017] FWCTrans 548 (29 December 2017)