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Australian Industrial Relations Commission Transcripts |
3274 
, Transcript of Proceedings [2007] AIRCTrans 199 (20 April 2007)
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 16762-1
SENIOR DEPUTY PRESIDENT HARRISON
C2006/ 3274
AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION
AND
RAIL CORPORATION NEW SOUTH WALES (RAILCORP)
s.170LW -prereform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/ 3274 )
SYDNEY
10.05AM, THURSDAY, 05 APRIL 2007
PN1
MR M CARRICK: I am a solicitor and I appear for the Australian Rail Tram and Bus Industry Limited.
PN2
MR T WOOD: I am a solicitor seek leave to appear on behalf of RailCorp.
PN3
THE SENIOR DEPUTY PRESIDENT: I take it that there’s no opposition to leave being granted- I’m so sorry Mr Ellery?
PN4
MR M ELLERY: I appear on behalf of the Australian Municipal, Administrative, Clerical and Services Union and appearing here to support the applicant.
PN5
THE SENIOR DEPUTY PRESIDENT: I take it there’s no opposition to both
Mr Carrick and Mr Wood to appear? Right and it is granted. Let me tell you what I received and read prior to this morning. At some
stage I assume you’ll seek to tender it, but let’s just make sure that I’ve received everything I should have.
From the RTBU under cover of a letter dated 9 March a statement of Mr Panigiris dated the same day. From RailCorp a letter from
you Mr Wood dated 26 March, annexing submissions of some three pages. Prior to that on 23 March an affidavit of Mr Greenhalgh sworn
on 22 March. From the ASU a letter dated 14 March 2007.
PN6
I know that there’s been some documents filed earlier, but subject to what either of you want to tell me, I suspect I can disregard them. So at some stage you can both address that matter but perhaps – well let’s address that first, should I have received any other documents from your side Mr Carrick?
PN7
MR CARRICK: Your Honour there was a letter by the RTBU dated 20 February addressed to you?
PN8
THE SENIOR DEPUTY PRESIDENT: Yes.
PN9
MR CARRICK: That appears to have a brief submission attached and then a series of documents that are headed Annexure (1), (2), et cetera.
PN10
THE SENIOR DEPUTY PRESIDENT: Yes, I have that document.
PN11
MR CARRICK: Your Honour, as I understand those documents are subsumed into Mr Panigiris’ statement, but for the submissions, and I will make submissions to account for the submissions here, so I don’t think we need to tender this document.
PN12
THE SENIOR DEPUTY PRESIDENT: No, no, that is what I had assumed would be the case.
PN13
MR CARRICK: Your Honour, can I just add this on my quick look this morning, I think the statement Mr Panigiris may be missing annexure 13. I will try and correct that during the morning.
PN14
THE SENIOR DEPUTY PRESIDENT: I didn’t think that was an oversight, I was going to ask him a question about that. I didn’t think it was an oversight, but I noted that.
PN15
MR CARRICK: We also want to tender annexure (13) and perhaps I’ll do it through him at the appropriate time.
PN16
THE SENIOR DEPUTY PRESIDENT: Yes, indeed. Mr Wood?
PN17
MR WOOD: Nothing further at the moment, your Honour.
PN18
THE SENIOR DEPUTY PRESIDENT: Again in the case of RailCorp anything filed earlier I can disregard?
PN19
MR WOOD: Yes.
PN20
THE SENIOR DEPUTY PRESIDENT: Good. Have you had some discussion about how you wish to proceed, this strictly speaking really is an applicant respondent issue, but if that’s the way you want to – the terms you want to use, well that’s fine, Mr Carrick?
PN21
MR CARRICK: Probably makes it easier to deal with things having that sort of motion of the proceedings, we are content to go first, I anticipate – well I will call Mr Paigiris, my friend says he will cross-examine him briefly, we will take it from there.
PN22
THE SENIOR DEPUTY PRESIDENT: Yes, very good, so any other preliminary matters, housekeeping matters I need to attend to before you start. Mr Wood?
PN23
MR WOOD: There is only one thing and there’s a motion of Mr Ellery in the carriage of the case just to clarify prior to any cross-examination I might have, the position would be if he was to - - -
PN24
THE SENIOR DEPUTY PRESIDENT: You would want me to call on him first?
PN25
MR WOOD: Or if he indicated that he won’t be doing anything either way.
PN26
THE SENIOR DEPUTY PRESIDENT: No problems, that’s the procedure I will adopt.
PN27
MR ELLERY: As I said, we are here to support the applicant in that position and the carriage of the case.
PN28
THE SENIOR DEPUTY PRESIDENT: You shouldn’t fell constrained though if you wish to ask any question of cross-examination but it is likely that you would need to do so immediately after Mr Carrick, so in effect I hear all the union evidence before Mr Wood is called on I think that’s what he is asking me. All right, Mr Carrick.
MR CARRICK: Thank you, your Honour I call Mr Panigiris.
<GEORGE PANIGIRIS, AFFIRMED [10.11AM]
<EXAMINATION-IN-CHIEF BY MR CARRICK
PN30
MR CARRICK: Mr Panigiris, just state your name and address for the record please?---George Panigiris, (address supplied).
PN31
I will show you a statement – is that a statement prepared by you?---It is.
PN32
Just go to the back there, you signed that?---I have.
PN33
You state that it’s true and correct to the best of your knowledge and belief?---I do.
PN34
Your Honour, I tender the statement of Mr Panigiris dated 9 March 2007. Your Honour has a copy on the file, I have a spare copy if your Honour wishes us to hand it up.
THE SENIOR DEPUTY PRESIDENT: No, I’m happy to use the copy as filed.
EXHIBIT #RTBU 1 STATEMENT OF MR PANIGIRIS DATED 09/03/2007
PN36
MR CARRICK: Mr Panigiris in your statement if you could go to paragraph 23?---Yes.
PN37
There’s reference there to attached (13), I understand that document isn’t in fact attached to your statement?---That’s correct.
PN38
I will show you a statement. Is that the document that you refer to in your statement as attached 13?---Yes, it is.
PN39
It’s the?---It’s a letter dated 11 September 2006 sent to me by Mr Greg Greenhalgh.
PN40
Thank you, I tender that your Honour. My friend has asked for a copy, I’ve got a spare copy.
PN41
THE SENIOR DEPUTY PRESIDENT: Can I have a copy? Do you want me to mark that separately, or just have the transcript note that I’ll place it in RTBU 1 as attachment 13?
PN42
MR CARRICK: I think that’s correct your Honour, that’s where it should be.
**** GEORGE PANIGIRIS XN MR CARRICK
PN43
That’s the evidence-in-chief.
PN44
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Ellery, any cross-examination?
PN45
MR ELLERY: No your Honour.
THE SENIOR DEPUTY PRESIDENT: Mr Wood?
<CROSS-EXAMINATION BY MR WOOD [10.15AM]
PN47
MR WOOD: Mr Panigiris you have annexed to your statement, what we call RailCorp Selection Policy as attachment 1?---I have.
PN48
You’re aware are you not that there were meetings between the then State Rail Authority and the Service Unions, RTBU and others with respect of the introduction in respect of the introduction of that policy in 2001?---Yes.
PN49
Now you’re aware and the policy as annexed September 2001, hasn’t changed as far as you are aware has it?---It hasn’t changed to date.
PN50
To date?---No, it hasn’t.
PN51
You acknowledge that the – in part 2.6.2 of that policy, on page 3 of that policy, that assessment centres are set out as an option for the selection process?---As determined by the selection panel yes.
PN52
Yes, that’s right, and you are referring then to the paragraph beneath the dot points in 2.6.2 are you, where the panel must consider the essential criteria before making a decision regarding the most suitable selection method?---That’s correct.
PN53
Then if I take you to 2.6.5 on page 7 of that policy, you are aware that the text that’s set out in the document about the rating and decision making in respect of applicants?---Yes.
PN54
The decision making then being expanded in 2.6.7?---Yes.
PN55
Now you are aware that prior to May 2006, if we go back to May 2006, you are aware that RailCorp have been using assessment centres for the selection process in respect of various positions since 2004?---I am aware that they have been using assessment centres for entry level type positions, in other words, people coming into the organizations and I’m also aware that there were discussions taking place with our wages division in relation to the introduction of assessment centres for wages employees. I’m not aware of any agreement that was reached in relation to that process.
**** GEORGE PANIGIRIS XXN MR WOOD
PN56
Were you aware that prior to May 2006, that the assessment panel, sorry the assessment centre process, had been used for a variety of positions, other than entry level?---No, I wasn’t.
PN57
Have you had a look at the affidavit of Mr Greenhalgh?---Yes, I have.
PN58
Have you looked at what is annexure A to that agreement?---Yes.
PN59
Are you now aware that there had been prior to May 2006, the use of assessment centres in respect of positions other than entry level?---Again I say to you, no I wasn’t we had discussions with your management, the people you represent in relation to the introduction of assessment centres for network operations superintendents. There was some discussions and some consultation and involvement of my delegates in relation to that process. There was also discussions again in relation to assessment centres for people in the RailCorp training division at our Petersham. The process for the network operation superintendents as far as I’m aware was never signed off and we never proceeded with finalisation of those discussions. In relation to the assessment process for training officers, the agreement there was that the assessment centre would play a role. However, at the end of that assessment the applicants would reappear before the selection process – sorry the selection panel, and the selection panel would make the final decision. They’re the only two areas that I was involved in where the employer felt they should come to me and talk to me about those changes. Any other area I have not been involved in other than station managers and duty managers.
PN60
THE SENIOR DEPUTY PRESIDENT: Can I just interrupt? What was the first group?---Network operation superintendents.
PN61
Network operation superintendents and the second group?---The second group go out - - -
PN62
The second group was training officers?---Second group is training officers.
PN63
Good thank you.
PN64
MR WOOD: My question was Mr Panigiris are you now aware that prior to May 2006 assessment centres have been used for a variety of positions, not solely entry level positions?---Since I saw that documentation, yes.
**** GEORGE PANIGIRIS XXN MR WOOD
PN65
Yes, thank you. I think can I take it from both your statement I think you address it in paragraph 7 and also your answer to my previous question, that you have not previously been involved in positions in which the assessment centre has not been utilised is that correct?---Yes, that’s correct.
PN66
Now the – you’ve talked about consultation, can I take you to paragraph 18 just so I’m not misleading you in your statement. You talk there in that paragraph of the meeting of your members and the rejection of the proposal and to short circuit the earlier parts of the statement you’ve annexed and referred to various correspondence with RailCorp about the use of the assessment centre as the option for these positions, and you are talking there in terms of the proposal?---That’s correct.
PN67
I take it that your position is that your members had to agree to the use of the assessment centre before RailCorp could implement it is that right?---Well no, that’s not my position. We were going through a process of consultation and the employer put a proposal to us, we put that proposal to our membership, our membership raised some concerns about that proposal and through the consultative process we said to the employer we had some concerns about what they were putting to us through our membership. Now that’s the normal course, that’s the normal course.
PN68
It’s not true is it that RailCorp at any time put this to you to seek your concurrence with it?---I’m not suggesting that at all, that they have.
PN69
But my question was that you saw that before it could be adopted, your members had to agree to that process?---No, I’m not suggesting that either. What I’m suggesting is that there’s a course that one follows through these processes and we’ve got a dispute settlement procedure and clearly our view is that you consult, if you don’t reach an agreement you go through the dispute settlement procedure. There’s certain steps within that procedure that you follow. We got to the stage where we told the employer that we had not reached an agreement. We are still going through that process and we said we want 8.6 of the procedure toe put in place.
PN70
But ultimately it was a matter of acceptance before it could go ahead?---I never suggested that at all.
PN71
It’s never been the case that the way in which an interview panel approaches – sorry a selection panel approaches how to conduct the interview has been a matter where there’s been required consultations has there?---Well in relation to the policy we have some very clear views about in particular station managers and duty managers and if you read the notices of dispute and where we were coming from in relation to that, our view is simply that in our functional agreement we had provisions in that about changes to the selection processes, the employer was aware of that and when the employer put us on notice that they were going to make the changes I assumed that they were also aware of the same arrangements in our functional agreement. I suppose that’s why they came to us and said hey, we seek to make a change. Now to pass custom and practice in relation to how these processes were taking place were clearly established and our members were fully aware of those processes. This assessment process was totally new. It meant that people appeared before a group of individuals and as we understood it they were actors and maybe one person from the business unit, and they had to perform in front of this particular group. That was completely different to the way we had done selection under the merit principles.
**** GEORGE PANIGIRIS XXN MR WOOD
PN72
Mr Panigiris if we just go back to my question?---Yes.
PN73
My question was, was any change in the way in which an interview was conducted by a selection panel was not a matter which required consultation with the unions did it?---Well I disagree with that, in this instance yes, there would have been because there was a clear practice in relation to how we did business in relation to selecting the most meritorious person for the job.
PN74
Can I take this stand? If there had been a practice of asking six questions in an interview?---Yes.
PN75
And a decision was made by the selection panel to ask seven questions, is that something you would have had to be consulted about?---No.
PN76
As to the nature of the questions, that is not something that you are consulted about?---No.
PN77
As to any weighting that might be applied to answers that’s not something that you get consulted about?---That’s correct.
PN78
Yes, nothing further.
PN79
THE SENIOR DEPUTY PRESIDENT: Mr Carrick, any re-examination?
MR CARRICK: Just one aspect your Honour.
<RE-EXAMINATION BY MR CARRICK [10.26AM]
PN81
MR CARRICK: Mr Panigiris my friend took you to annexure A to Mr Greenhalgh’s statement, do you have a copy of that in front of you?---No, I don’t but I’m familiar with it.
PN82
Perhaps I can hand you a copy. Before I give that to you, just let me ask you this just to short circuit it. Are you able to go through annexure A, and indicate which of the positions are entry level positions?---Very confidently.
PN83
I’ll hand you a copy of annexure A of Mr Greenhalgh’s statement. Your Honour just in a practical way of dealing with this evidence, can I suggest this, and I hope it doesn’t become too onerous. I propose to run down the list with Mr Panigiris that’s the list that’s in the document headed, assessment centre summary and just have him indicate which of those position names in the second column are entry level positions. If I could be so bold, perhaps your Honour could indicate on a copy which ones he says, because I’m not able to hand up a copy at this stage.
**** GEORGE PANIGIRIS RXN MR CARRICK
PN84
THE SENIOR DEPUTY PRESIDENT: What’s say I adjourn for five minutes. Mr Panigiris goes through that exercise marking off a document in his possession, shows it to Mr Wood and I come back again.
PN85
MR CARRICK: That’s very simple thank you, your Honour.
PN86
THE SENIOR DEPUTY PRESIDENT: and I might then even return – I haven’t marked Mr Greenhalgh’s affidavit yet, so I can hand it back to you. The position might be agreed and then you can mark off mine and as the question for the purpose of transcript, but it will shorten it.
PN87
MR CARRICK: Thank you, your Honour that’s suitable, it may be easier just to hand up the copy he has as well as the document.
PN88
THE SENIOR DEPUTY PRESIDENT: Yes, true, five minutes.
PN89
MR CARRICK: Thank you, your Honour.
<SHORT ADJOURNMENT [10.28AM]
<RESUMED [10.47AM]
PN90
THE SENIOR DEPUTY PRESIDENT: Mr Carrick?
PN91
MR CARRICK: Thank you, your Honour. Mr Panigiris has marked off on that document annexure A, the positions that in his evidence are the positions that are entry level positions, in respect of assessment centres. Can I tender that document?
PN92
THE SENIOR DEPUTY PRESIDENT: Yes.
PN93
MR CARRICK: There is no agreement, but we’ve tried to – well my friend has had the document and they’ve discussed it he tells me there’s not an agreement, but I’ll tender it as Mr Panigiris’ evidence.
PN94
THE SENIOR DEPUTY PRESIDENT: All right well there’ll be time for the two of you to see if you can narrow down the areas of disagreement, but for the time being I’ll mark this evidence and it reflects Mr Panigiris view of which of those positions are properly described as entry level positions.
PN95
MR CARRICK: Can I say about that your Honour. I wouldn’t be putting this to you as something that you need to decide, if there’s a contest on it. The point is a simple one that the number that’s put forward is not a number that is just promotions, there’s a significant number in there that are entry level and that’s the simple point.
**** GEORGE PANIGIRIS RXN MR CARRICK
PN96
THE SENIOR DEPUTY PRESIDENT: Well subject to hearing Mr Wood I understand this is probably not going to be a finding – and in fact I’d run a mile before I had to make a finding of all of these.
PN97
MR CARRICK: Yes, indeed, well I wouldn’t wan to put your Honour to that trouble because it really is not necessary in this matter.
THE SENIOR DEPUTY PRESIDENT: But it is, it really picks up earlier comments made by Mr Panigiris about the extent to which – I understand now this document comprising eight pages I will mark RTBU 2, but I do know it’s a reproduction of a document that probably will be before me a little later from RailCorp and annexure A, part of annexure A to Mr Greenhalgh’s statement. But this document reflects Mr Panigiris view as to what can probably be described as entry level positions.
EXHIBIT #RTBU 2 ENTRY LEVEL POSITIONS 8 PAGE DOCUMENT
PN99
MR CARRICK: What is your entry level position in your – what’s your definition of an entry level position Mr Panigiris?---Well my definition is those positions that are at the base grade of the classifications.
PN100
The applicants are person who are outside the workforce or internal or a mixture of both?---I would say that probably 90 per cent of the applicants would be external at the interview stage.
PN101
Thank you Mr Carrick?
PN102
MR CARRICK: Thank you, your Honour that’s the only re-examination.
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Panigiris you are now free to leave the witness box.
<THE WITNESS WITHDREW [10.50AM]
PN104
THE SENIOR DEPUTY PRESIDENT: Any other witness evidence or documentary evidence from your side Mr Carrick?
PN105
MR CARRICK: No, your Honour, I have a written submission that I will deal with later.
PN106
THE SENIOR DEPUTY PRESIDENT: All right, Mr Wood?
PN107
MR WOOD: Your Honour, can I just have a moment to perhaps end that issue with Mr – how we are going to deal with that issue with Mr Carrick, if I just have a - - -
PN108
THE SENIOR DEPUTY PRESIDENT: You don’t want me to leave again?
PN109
MR WOOD: No.
PN110
THE SENIOR DEPUTY PRESIDENT: All right.
PN111
MR WOOD: Having had that discussion, could I have a short adjournment for 10 minutes?
PN112
THE SENIOR DEPUTY PRESIDENT: Of course, let my associate know when you are ready to resume.
<SHORT ADJOURNMENT [10.51AM]
<RESUMED [11.05AM]
PN113
THE SENIOR DEPUTY PRESIDENT: Yes, where are we, Mr Wood?
MR WOOD: Can I call Mr Greenhalgh?
<GREGORY ROBERT GREENHALGH, SWORN [11.06AM]
<EXAMINATION-IN-CHIEF BY MR WOOD
PN115
MR WOOD: Your name is Gregory Robert Greenhalgh, spelt,
G-r-e-e-n-h-a-l-g-h?---Yes.
PN116
18 Leigh Street Chippendale is your address?---Yes.
PN117
Did you swear an affidavit for the purposes of these proceedings?---Yes, I did.
PN118
Do you have a copy of that in front of you?---Yes.
PN119
Is that an affidavit sworn 22 March 2007?---Yes.
PN120
It bears your signature at the base of the first four pages and above your name on the fifth page?---Yes, Mr Wood.
Yes, I tender that affidavit.
EXHIBIT #RAILCORP 1 AFFIDAVIT OF MR GREGORY GREENHALGH
PN122
MR WOOD: Mr Greenhalgh if I just take you to paragraph 9 on the third line, I think there’s a correction to be made there, is that correct?---That is correct, the word should be, been, instead of be after the word not.
PN123
MR WOOD: On the third line of paragraph 9.
PN124
THE SENIOR DEPUTY PRESIDENT: Assessment centre had?
PN125
MR WOOD: Not been used.
PN126
THE SENIOR DEPUTY PRESIDENT: Not been, thank you.
PN127
MR WOOD: I just seek to ask some questions arising out of the evidence today. Mr Greenhalgh what do you describe as a base entry
level position for RailCorp?
---Base level position would be a position that a person comes into at the bottom level of the grade. Normally base level positions
would be like CSA 1 in the stations area. Presentation service attendant in the presentation area, apprentice in the trades area,
and grades of that like. But sometimes we do external recruitment and people come in at a level above those specific examples.
**** GREGORY ROBERT GREENHALGH XN MR WOOD
PN128
In the case of station managers there are a number of grades within station managers aren’t there?---Station manager one to seven.
PN129
One to seven, and do you – is one of those a base grade position for a station manager classification?---The base of the station manager grades would be station manager one. It’s in the award but we don’t have any persons currently in that grade.
PN130
Right if you were filling station manager positions could applicants go into anywhere between one and seven as an entry point?---If they demonstrate that they have the skills and meet the criteria and through merit process they could move anywhere within that range yes.
PN131
So it’s possible?---It’s possible, yes.
PN132
In you have as annexure A to your affidavit a document that is assessment centre summary data?---Yes, Mr Wood.
PN133
From that can I just take you to the first page – sorry before I do that, within RailCorp there are a number of different categories of drivers for example, is that right?---Correct.
PN134
So if you just run through some of the different categories?---Well we have driver and that driver could work in the ETR network, that’s the electric-trade running area and that could be an inter-urban driver. We also have the classification of country driver which is remunerated above the inter-city and ETR drivers and there’s the classifications like principle driver.
PN135
Now if you just turn to the second page of that assessment centre summary data which starts at 2004 and if we went for example to the second last line where it says driver, does that – do you know what type of driver that document relates to?---Not specifically no.
PN136
So it could be any of the types of drivers that you refer to?---It could be.
PN137
In terms of again, just taking that position of drivers, are you aware what is a standard proportion between internal and external
applicants for driver
positions?---I can’t give you a statistical breakdown but it’s my background knowledge that we have more people promoted
to the driver ranks internally than externally.
**** GREGORY ROBERT GREENHALGH XN MR WOOD
PN138
Right so existing employees?---Existing employees, predominantly coming from the guards ranks.
PN139
Right, and if we just for example on the second page, third entry relates to guards, you have a view in respect of guards for example?---Yes, again similarly most people are promoted to the guards ranks coming up through the CSA grades on the stations. We do have people going from other areas, but predominantly through the stations area.
PN140
Compared to external applicants, the majority?---The majority would be internal.
PN141
Yes, nothing further.
THE SENIOR DEPUTY PRESIDENT: Mr Carrick?
<CROSS-EXAMINATION BY MR CARRICK [11.12AM]
PN143
MR CARRICK: Mr Greenhalgh just on that point, many of the people who were included in this document, that is annexure A to your statement, are people who are not only entry level but have come into the organization from outside their external.
PN144
MR WOOD: Objection your Honour. I don’t think the document refers to people to identify people.
PN145
MR CARRICK: I withdraw that.
PN146
THE SENIOR DEPUTY PRESIDENT: Positions?
PN147
MR CARRICK: I will withdraw that.
PN148
THE SENIOR DEPUTY PRESIDENT: Is that your concern?
PN149
MR WOOD: I’m not sure what it is, that’s what I raised it. It’s not people it could be another question, that could be rephrased.
PN150
THE SENIOR DEPUTY PRESIDENT: Do you want to rephrase it?
PN151
MR CARRICK: I will rephrase it, I will re-ask it.
**** GREGORY ROBERT GREENHALGH XXN MR CARRICK
PN152
THE SENIOR DEPUTY PRESIDENT: All right, yes.
PN153
MR CARRICK: On the document the fourth column is headed candidates assessed?---Yes, Mr Carrick.
PN154
It has numbers under that, are they the number of people, people been for candidates?---I believe so, Mr Carrick.
PN155
So they’re numbers of people in that column?---Yes, based on data I received from our HR area.
PN156
So back to my question, it’s the case isn’t it that many of the people reflected in this document, that is candidates, are external to the organization?---Some would be and some would be internal, I can’t - - -
PN157
Some are internal and some are external can you – I put it to you that there’s a significant number of them are external?---I don’t know.
PN158
Well can you go to page 2 the second page at the top of that page if I’m on the correct page is CRO and VET training positions,
is that right, are you with
me?---Correct yes.
PN159
Run down that column for me to 12 down which is customer service attendant, the 12th entry?---Both could be internal and external. We might advertise internally for presentation service attendants.
PN160
I put it to you it’s the case isn’t it, the majority of customer service attendants that would be candidates listed there, the 60 of them, the majority of them would be external?---I would expect so.
PN161
Then go down another three, graduate program, there’s 72 candidates there, the majority would be external?---I would expect so, yes.
PN162
Then go down another one, two three, customer service attendants, there’s 48 candidates there, the majority would be external?---On the same basis yes.
PN163
The one just below that, graduate program again, 84 the majority external?---Yes, I would expect so.
**** GREGORY ROBERT GREENHALGH XXN MR CARRICK
PN164
Then down one, two, five more columns customer service attendant which is the second last column, second last row, I should say, 102 candidates, the majority would be external of those wouldn’t they?---Again I would expect so, yes.
PN165
Looking at those particular ones I’ve picked out, that the number of candidates, I’ll just run through them, you can see as I do it, 60, 72, 48, 84, 102, just those ones there that I’ve pulled out by way of example, they are the – you would conceded wouldn’t you that they represent a large bulk of the numbers in here? I mean I can go on if you like, let’s go over the next page, second last from the bottom presentation service attendants, are you with me?---Yes.
PN166
The majority external?---Yes.
PN167
110?---Yes.
PN168
One of the bigger numbers, so would you concede then, a significant number of the people represented on this document, are external?---On those ones that we just went through I would say yes.
PN169
But given that those ones that we went through represent the bigger numbers overall would you agree ?---Again, yes on those ones that we went through.
PN170
Have you – I presume you’ve worked on a selection panel – been on a selection panel?---Yes.
PN171
Were you at work when you did?---Yes.
PN172
So you were working when you were on the selection panel?---Of course.
PN173
Can I take you to in your statement paragraph 13 – put that aside – this selection process that’s been introduced and the assessment centres, the people on the selection panel are told that with respect to station masters and duty managers, that the candidates are going to the assessment centre, aren’t they?---The selection panel make the decision and determine that it would be an appropriate method of selecting staff to use assessment centres, that’s what occurred in this situation.
PN174
I’m talking general terms, you say the selection panel determined that the assessment centre is the correct, or the appropriate method?---Was an appropriate method to use and decided to do so.
**** GREGORY ROBERT GREENHALGH XXN MR CARRICK
PN175
Just excuse me for a second – in general terms the selection panel is required to make a decision each time, isn’t it?---Make a recommendation.
PN176
No I’m talking about the method of dealing with the selection process, the selection panel has to use which method, doesn’t it?---There are nine methods included in the 2001 policy, yes.
PN177
And the selection panel has to choose which method is the appropriate method to use?---The selection panel has that responsibility amongst other things, yes.
PN178
But it’s the case they’ve been directed how to choose isn’t it?---I don’t know, I can only quote to you what the policy says and it says there are nine methods available.
PN179
When in RailCorp correspondence – in RailCorp’s letter dated 8 May to Mr Panigiris tell me if you need to see this letter I’ll tell you what it says and I can show you.
PN180
THE SENIOR DEPUTY PRESIDENT: Perhaps identify where it can be found.
PN181
MR WOOD: It is annexure 3 to Mr Panigiris statement.
PN182
THE SENIOR DEPUTY PRESIDENT: Annexure 3 to RTBU 1?
PN183
MR WOOD: Yes.
PN184
THE SENIOR DEPUTY PRESIDENT: Yes.
PN185
MR CARRICK: That letter to Mr Panigiris reads:
PN186
After the implementation of station reform it is RailCorp’s intention to adopt a new merit selection process within the station of operations.
PN187
THE SENIOR DEPUTY PRESIDENT: Would you like a copy of the letter in front of you Mr Greenhalgh?---Yes, I don’t have Mr Panigiris’ statement with me.
PN188
MR CARRICK: See that second paragraph of that letter?---Yes.
PN189
The new merit selection process is using assessment centre isn’t it?---Well it’s not a new process per se because it’s in policy, but it was the first time it was intended to be used for station managers.
**** GREGORY ROBERT GREENHALGH XXN MR CARRICK
PN190
Well I’m reading off the RailCorp letter and it says, RailCorp’s intention – I’m halfway through the second paragraph here:
PN191
It is RailCorp intention to adopt a new merit selection process.
PN192
So that’s what the letter says, what it is referring to is the assessment
centre?---Yes.
PN193
Use of the new assessment centre?---Yes.
PN194
So how is it that RailCorp can be certain on 8 May 2006 that each selection panel will choose that as the appropriate?---The word there says intention.
PN195
So your evidence is that each selection panel has – it’s completely up to them whether they use an assessment centre or not?---I’m not saying that. I’m saying that the selection panel is responsible is that the methods of available under policy are appropriate.
PN196
Isn’t it the case though, that selection panels for SMs and DMs will be told that candidates are to be sent to the assessment centre?---Candidates are told at the appropriate time, yes.
PN197
THE SENIOR DEPUTY PRESIDENT: Is that the question?
PN198
MR CARRICK: It’s not the question?---Could you repeat the question please Mr Carrick?
PN199
THE SENIOR DEPUTY PRESIDENT: Ask the question again.
PN200
MR CARRICK: Thank you. Isn’t it the case that selection panels are told that the candidates they are seeing for DM and SM positions, must be sent to the assessment centre?---I can’t answer yes or no Mr Carrick.
PN201
Can you try and answer this then. How is it that this new policy that’s been implemented will work?---It’s not a new policy it goes back to 2001.
PN202
It’s new – I don’t think there’s any doubt that it’s new with respect to SMs and DMs?---No, it’s generic policy across the entire organization and has been in place for some six years.
**** GREGORY ROBERT GREENHALGH XXN MR CARRICK
PN203
Are you suggesting that it’s been in place for six years with respect to SMs and DMs?---With everybody within the organization, yes. We don’t have separate policies for SMs as opposed to other classifications.
PN204
Let me clarify what I am saying. I’m talking about the way the policy is implemented with respect to SMs and DMs are you saying that that policy has been implemented by the use of assessment centres over the past six years, is that your evidence?---No, what I would say Mr Carrick this is the first time that the assessment centre method was adopted for station managers. I said that earlier.
PN205
So back to my question – you’ve just said that the assessment centre method has been adopted for station managers?---Yes.
PN206
How has that adoption taken place with respect to informing selection
panels?---In terms of the selection panel, the selection panel was drawn from representative from our corporate area. We had a station
operations management representative and an external representative.
PN207
Sorry to interrupt you there I’m talking in general terms now not about one particular instance, but just the way the policy will operate generally?---It’s the organization’s call as to determine what appropriate method apply and if it’s in accordance with the policy then the selection panel is formed and the selection panel goes forward on that basis. In terms of being directed I can’t specifically say they were directed to use that particular method, although that method was in place and used in many other areas of the organization over the last number of years.
PN208
What I’m asking you about Mr Greehalgh is how is it conveyed to the selection panel that the organization now wants candidates for SM and DM positions to go to the assessment centre?---Mr Carrick, I honestly cannot answer you.
PN209
Can you answer me this? You presume don’t you that something is conveyed to the selection panels?---Presumably, yes.
PN210
You would agree wouldn’t you, it would have to be otherwise we all wouldn’t be here, if you understand what I mean by that?---I’m not quite sure of the line of the question.
PN211
I’ll ask that question again. If it wasn’t the case that the organization was conveying to selection panels how to – sorry I withdraw that – if it wasn’t the case that the organization was conveying to selection panels that candidates had to be sent to the assessment centre, there would be no dispute would there?---In specific to station managers if we weren’t going through the path of using the assessment matters, that would be correct yes.
**** GREGORY ROBERT GREENHALGH XXN MR CARRICK
PN212
Now can you tell me after a station manager, or a SM or DM has gone to the assessment centre, who ranks them?---The selection panel makes the determination and does that ranking. They receive reports from the assessment centre and those reports along with other checks that are undertaken by the selection panel the judgment is made on that basis. The buck stops with the selection panel.
PN213
I’ll ask you again, who ranks them? That is who ranks the candidates?---They – the assessment centres provide individual reports and the selection panel makes the determination.
PN214
Well I’ll be a little more direct then. Does the assessment centre rank the candidates?---I don’t know.
PN215
Can you go to - - -
PN216
THE SENIOR DEPUTY PRESIDENT: Just pause for a moment would you. Yes proceed.
PN217
MR CARRICK: Can you go to annexure 7 of Mr Panigiris’ statement?---Yes.
PN218
Do you have that document?---I do Mr Carrick.
PN219
It’s your letter to Mr Panigiris dated 15 August 2006?---Yes.
PN220
If you can go to section 7, or paragraph 7 of your letter on the second page down the bottom?---Reading starts with “this is not a new process”.
PN221
That’s correct then it has a table that compares the merit selection in the panel process and the newer process, turn over the page please?---Yes.
PN222
Starting at the top of that page in the right-hand column, it reads “successful applicants invited to the assessment centre and advised of assessment”. What happens if a candidate says I’d rather not go to the assessment centre?---They are not forced to do so Mr Carrick.
PN223
Do they have any prospect of getting the job if they didn’t go to the assessment centre?---I believe not.
**** GREGORY ROBERT GREENHALGH XXN MR CARRICK
PN224
The next line, or next box down, applicants assessed in the assessment
centre?---Yes.
PN225
Then the next box down, applications, ranked on merit?---Yes.
PN226
Now it seems from reading that doesn’t it, that they are ranked following the assessment centre process based on what happened in the assessment centre process?---Yes, but it doesn’t say there that the assessment centre does the ranking.
PN227
But there’s no intervening step that allows anyone other than the assessment centre to do the ranking is there?---Yes, but the next point says, selection report prepared nominating recommended applicant, that’s done by the selection panel, it doesn’t say so in this document, it doesn’t say so in this document just like the point above. The applicants are ranked to my understanding by the selection panel.
PN228
My recollection of your evidence previously is that you didn’t know? I might be incorrect about that, but I believe a little while ago you said you didn’t know where they were ranked. Is that what your evidence was a little earlier?---I did say that it was my understanding that the selection panel made the decision in terms of assessing all candidates based on documentation they received both from the assessment centre and the checks they undertake as part of the selection process.
PN229
The reality is that they are ranked in the assessment centre process aren’t they?---I don’t know.
PN230
THE SENIOR DEPUTY PRESIDENT: Do you have a problem with the word ranked as opposed to assessed? When I say ranked as opposed to assessed?---I know you - - -
PN231
When I say problem as in you can’t speak of it from your own direct
knowledge?---Your Honour I haven’t gone through the assessment centre myself, but it’s my understanding that individual
reports are prepared on candidates and if you present individual reports I don’t know how a ranking could occur within an individual
report.
PN232
Well I can understand that people could be assessed highly and not so high and it’s not very hard then to look at that and rank them yourself?---Yes.
**** GREGORY ROBERT GREENHALGH XXN MR CARRICK
PN233
But you are only doing that because you understand either arithmetic or a system that goes from low to high. Now that might be ranking?---It might be your Honour.
PN234
It might be another internally understood meaning of the word ranking, I don’t know. Is that behind your concern of the use of the word ranking?---Ranking to me is 1 to 100.
PN235
But assessment – well they must be doing something otherwise it’s a waste of time so presumably the assessment comes back with some indication of who’s at the high end and who’s at the low end?---Presumably yes, your Honour.
PN236
All right?---I don’t mean to be difficult Mr Carrick, but that’s my understanding.
PN237
MR CARRICK: Thank you, your Honour, we are all doing our best.
PN238
Now in that Page 3 of your letter at the top, in the left-hand column at the
top?---Yes.
PN239
It says, successful applicants invite to an interview, it’s the case isn’t it, that there is no interview of the applicant in the new process that involves assessment centres?---I won’t agree with you on new process but the assessment centre process, yes, my understanding is there is no interview that’s correct.
PN240
That’s the examination your Honour.
PN241
THE SENIOR DEPUTY PRESIDENT: Yes, I just have a couple of queries Mr Greenhalgh and it might be appropriate that I raise them now Mr Carrick if anything arises out of them, you can let me know if you wish to further cross-examine.
PN242
Mr Greenhalgh I’ve got a little note next to 13(l), but I better look at it now to understand - - -?---My affidavit your Honour.
PN243
I thought it was, 13(l), but I’m just trying to – yes, I know, the last line. What’s train crew attestation?---Signing on and signing off of train crew at the end and beginning of shifts.
PN244
A duty that might be peculiar say to the Penrith level 7?---It’s done at a number of locations where there are train crew. Such as Campbell Town, Penrith, Gosford and those locations.
**** GREGORY ROBERT GREENHALGH XXN MR CARRICK
PN245
Thank you. Annexure 7 to Mr Panigiris’ statement question (5)?---Yes, your Honour.
PN246
Assist me with that would you? Let me just read it again and I’ll remember why I had a query to ask you a question about it?---What the assessment centre does is suss out job related – key skills in job specific activities, like I think attached to this letter also is a one pager, which is two pages beyond that page your Honour and it talks about what the assessment centre for station management recruitment is about. It goes on and talks about the skills that are assessed such as conflict resolution and problem solving. It could well be a station manager has to deal with a situation where there’s conflict between a customer at the booking office and a sales person. The station manager has to resolve that conflict situation and we ask through the assessment centres how he’d best deal with that situation.
PN247
All right now what does it mean when there is no job related testing of applicants for SM and DM positions?---Yes, the term above in the heading is the term psychometric testing and we’re saying that there’s no such psychometric type testing undertaken.
PN248
I see. So there’d be no job related testing relates to psychometric testing, not anything broader than that answer?---That's correct.
PN249
All right. Now, that document, two pages on, that you mentioned titled Assessment Centre for Station Manager Recruitment, who prepares that document to your knowledge? Who has prepared that document?---That document, that document was developed by our corporate job assessment group, the professional area in corporate HR who developed that to map it out and we used that document as one of the attachments that we presented to the unions when we first commenced the consultative process back in July of last year.
PN250
Now, who’s the job related assessment unit again?---It’s part of our corporate HR area and they’re responsible for the assessment centre function. Some of the people in the assessment centres are external specialist contractors, others are our own permanent staff and that unit is responsible for the overall running of the centres and the quality control and the activities that they have to perform.
PN251
And that page there is just one page document, is it?---Just to explain, yes.
PN252
Yes, I see?---The sorts of role plays and the activities and what the assessment centre does.
**** GREGORY ROBERT GREENHALGH XXN MR CARRICK
PN253
Yes, thank you. Mr Carrick, anything arising?
PN254
MR CARRICK: Nothing, your Honour, no.
PN255
THE SENIOR DEPUTY PRESIDENT: Mr Wood, any re-examination?
PN256
MR WOOD: No, your Honour.
THE SENIOR DEPUTY PRESIDENT: Thanks, Mr Greenhalgh?---Thank you, your Honour.
<THE WITNESS WITHDREW [11.37AM]
PN258
THE SENIOR DEPUTY PRESIDENT: Any further witness evidence?
PN259
MR WOOD: No further evidence.
PN260
THE SENIOR DEPUTY PRESIDENT: Any further documentary evidence?
PN261
MR CARRICK: No.
PN262
THE SENIOR DEPUTY PRESIDENT: All right. Who wants to go first? Well, shall I mark your letter, Mr Ellery, or are you happy just to have it transcribed that you support or you propose to support the position of the RTBU?
PN263
MR ELLERY: I think that’s all right.
PN264
THE SENIOR DEPUTY PRESIDENT: Yes, all right. So you don’t need me to mark that?
PN265
MR ELLERY: No, that’s not required.
PN266
THE SENIOR DEPUTY PRESIDENT: Very good. Well now, Mr Carrick.
PN267
MR CARRICK: I have a written submission, your Honour. I might contend to, just in the interest of moving on, to hand it up to your Honour and speak to it now without your Honour reading it, but if your Honour wants to take a pause and read it that’s a matter for your Honour.
PN268
THE SENIOR DEPUTY PRESIDENT: Well, let me just see it. We are going to complete this by lunch time quite comfortably, aren’t we? I might take a 10 minute break to read this. Are you going to be handing anything further up to me other than the submission?
PN269
MR WOOD: No, your Honour.
PN270
THE SENIOR DEPUTY PRESIDENT: Right, no. I have read that. I'll mark it later, but I'll take a 10 minute break.
<SHORT ADJOURNMENT [11.38AM]
<RESUMED [11.49AM]
THE SENIOR DEPUTY PRESIDENT: Yes. I read those, thank you.
EXHIBIT #RTBU 3 SUBMISSIONS OF RTBU
PN272
THE SENIOR DEPUTY PRESIDENT: Mr Carrick.
PN273
MR CARRICK: Thank you, your Honour. Your Honour, I certainly don’t mean to take you through everything in the submissions. It’s there in writing. So in brief terms obviously what we’re talking about today or dealing with today is the meaning of clause 8.6 of the agreement. We say there are real problems with this assessment centre process. As it’s carried out now there’s problems with transparency, there’s problems with appeal. That’s nothing to do with what you have to deal with today, but they’re legitimate concerns. The employer, RailCorp, assert initially it seems to me in their submission, that this process of assessment, the process of selecting candidates for jobs, is at work. It seems they’re trying to assert and trying to avoid the effect of clause 8.6 by that means.
PN274
My submission on that is straight forward. I mean, that just simply can’t be the case and Mr Greenhalgh’s evidence, I think, deals with that apart from common sense dealing with it. Obviously the people who are on a selection panel are at work and doing work. The next step is then is there, as per clause 8.6, are there procedures being followed, that is procedure and practices in place? Well, clearly there were procedures and practices in place, but this is the important thing - you have to distinguish procedures and practices from the policy. We don’t say that the policy wasn’t in place. What we say is that there were procedures and practices in place. Quite a different thing.
PN275
And those procedures and practices were changed and that’s what’s led to this dispute. Now, I won’t do it laboriously, but in my submission in paragraph 8 you can go through those letters and clearly on RailCorp’s own documentation they’re introducing a change to procedures and practices. Again we don’t assert that they’ve changed the policy. The issue about annexure 8 of Mr Greenhalgh’s statement, I think the respondent would have you think that this use of assessment centres is ubiquitous or almost entirely prevalent. That’s not the case and it’s certainly not the case with respect to station managers and DMs and SMs. They will make the point presumably that there’s no change because this process using the assessment centres, they say, is so often used or so commonly used.
PN276
Well, we reject that and we point out in particular that there’s a very different thing talking about the promotion of the DMs
and SMs as to employ new people at entry level jobs. They also assert that they haven’t departed from the selection policy
and this, I think, fits into their argument where they say we haven’t changed anything. We’re using the policy, the
policy has been there and they say we haven’t changed anything, we haven’t departed from it. Well, that’s not
the case either. They’ve clearly departed from the selection policy. The selection policy is clear. It requires at point
- and this is annexure, probably the simplest way and the fullest version is annexure 8 of Mr Greenhalgh’s statement, it’s
in
Mr Panigiris’s statement as well - that annexure 8, 2.6.2 selection process, after the list of dot points there it says this:
PN277
The panel must carefully consider the essential selection criteria before making a decision regarding the most suitable selection method.
PN278
Now, according to this policy, rightly or wrongly, that is a matter for the selection panel to consider on each occasion.
PN279
THE SENIOR DEPUTY PRESIDENT: What do you mean when you say on each occasion?
PN280
MR CARRICK: Well, each time the selection panel is convened according to this panel that selection panel must apply the policy and in doing that it considers what’s in 2.6.2. The selection panel, also in 2.6.2, the last section or paragraph of that the selection panel must agree on the most appropriate selection method to be used prior to the cull. So for each job or jobs being advertised with a particular selection panel, that selection panel is required to choose the proper selection method and it may be one or a number of those things that are listed there. But the point is this, clearly the organisation, RailCorp, are not applying the selection process or the selection policy document because what clearly has happened is that they’ve made a management decision to change the process and take away the discretion and the required discretion of the selection panel to choose which process.
PN281
Clearly now the process to choose which process is applied and clearly now the process that will be applied is the assessment centre process. Now, I’m not putting that to you in terms of that’s good, bad or indifferent, I’m simply making the point - and I think it’s an inescapable point - that they’re not applying their own policy. So the procedure and practice has changed. There’s no doubt about that. And secondly, they can’t rely on the fact that there was a policy that they have stuck to all this time because they’re not even applying their policy now. So applying the correct application of 8.6 is, in my respectful submission, reasonably simple. While the dispute process is unfolding the status quo remains.
PN282
The status quo stays in place. That is the procedure and practice prior to the new or proposed, however you want to put it, merit selection process should remain. They are my submissions. Thank you.
THE SENIOR DEPUTY PRESIDENT: Mr Woods. Shall I mark your submissions, Mr Woods?
PN284
MR WOOD: Yes. Thank you, your Honour. I hope that in the submissions that I’ve put in writing I’ve got a clear and succinct proposition that we put forward and there are two propositions contained within that. The first proposition is whether or not ultimately this is a matter that falls within the scope of 8.6. We accept that the matter is a matter that can come before the Commission for arbitration, but ultimately just being here doesn’t mean that it falls within the scope of the operation of the provision. The second argument is that if it does there has not been any change that would mean that there is inconsistency with the application of 8.6.
PN285
The first point as addressed by both parties now in their written submissions indicates a need to look at what is met by 8.6 and it’s quite clear the parties are in issue about that. There’s no real dispute about looking at the language and trying to work out what it ordinarily means. In his written submissions Mr Carrick has gone through some history, that the history is of some relevance, but ultimately you have to look at the words in issue. What is important out of the history that Mr Carrick has left out is that in looking at what is the dispute settlement procedure now in clause 8, there is clearly a difference between that and what has gone before it and Mr Carrick has extracted some comments from the Full Bench when they were certifying the agreement.
PN286
To illustrate my point I’m happy to take you to paragraph 23 of Mr Carrick’s submissions when he extracts some alternative clauses in the past and this is simply to note the difference between past and the present. If you look at the extract from 9.7 of the Salaried Officers Award 2002 down to the relevant bit near the end of the second line:
PN287
The parties will return to the situation arrangements that existed prior to the issue.
PN288
Now, that is a different phrase to what we have now. The next one:
PN289
No changes will be implemented.
PN290
That’s a different phrase to what we have now. So just looking at those two, for example, they, I would submit, would be more akin to what I have extracted as an alternative set of words in 3.5 of my submissions, ie. basically yes, you can do nothing. Mr Carrick purports to say that the current clause means you can do nothing because otherwise there would be a loss of rights and therefore that must be the case, but it’s quite clear in looking at the dispute settlement procedure that different types of disputes are dealt with differently. The clause is certainly very broad to bring up the fact that any dispute, any issue as identified in 8.2, may start to fall within the scope, but when you get to step 6 in 8.2 you have very much a narrowing of issues and it’s got to come back to the agreement.
PN291
So when you look at that in the context and if you wish to go to things in the past to look at what the meaning of 8.6 now is, then it’s clear that while there is a procedure for discussion and consultation there is a difference as to what ultimately falls out through that consultation process and what can go on to arbitration. So in that sense it is not surprising that the parties would look to limit the concept of what is caught by the status quo concept as we have submitted. The outcome is that some things will stop and some things will not stop within the scope of that because otherwise the parties could have easily adopted wording such as in that 9.7 and the clause which Mr Carrick has referred which shows that nothing is to change.
PN292
So that then means you need to look at what amounts to work procedures and practices in place in that clause. Mr Carrick has purported to say that because somebody is at work that that amounts to something that can be stopped. If we go back - and it falls within this issue - if we go back to the evidence of Mr Panigiris, though, I asked him a few questions about changes to what happens at an interview and if new questions were put, extra questions were put contrary to what had been happening before - no, that was not a matter about which there would be consultation and a therefore an issue that might give rise to the agreement. He didn’t say that, but I draw that from that.
PN293
They weren’t consulted about the questions when someone decides on a question, they are at work about that. There is no involvement in the issue of waiting. Well, a discussion about what waiting to give to a question is something that people are doing at work. So when you simply look at that, just because somebody is at work does not give rise to a reason for something to stop. It’s a question of looking at the practice and what practices and procedures are involved in which they do their work. So that let’s take some other examples to give this some further real life.
PN294
If you had a situation let’s say, for example, where RailCorp said that the Citirail trains would be operated by one person, the driver, who would fulfil the guard and driver roles, that would be a significant change for work practice and procedure. If there’s a dispute about that then that would be clearly something that would be changed. If a station manager changed, worked out in consultation with management a new procedure for some safe working elements on a station and they are implemented, then if the manager then decided to say well, I think having done all that, that that results in my job needing to be regraded and there is a dispute about whether or not there is regrading, the work procedures that relate to that safe working which is the colonel to this issue is not something which would not stop while that dispute was being looked at.
PN295
But to go otherwise then you end up in a whole range of absurdities. If you wanted to change the colours of pens that people were using at work, well you can’t do that until you go through the entire dispute settlement procedure. So when you think about it in those terms those words have got a real meaning and a real live activity to be done and that’s why it’s put forward in the way that we submit. If you apply that then to the issue at hand, the issue of deciding to use an assessment centre in this instance is not something that amounts to that type of work practice or procedure and for that reason we say this issue falls outside of the scope of the termination about whether there has been or has not been a breach of clause 8.6.
PN296
Turning to that one distinct submission it appears that in the submissions that
Mr Carrick has put there seems to be a mixing of the two, but I think you need to see them as two distinct submissions between the
second one which is relating back to the use of the assessment centre. There is no question that the use of assessment centres as
an option is in a policy that’s been there since ’01 and there is no question that the use of assessment centres has
occurred prior to May 2006 in a variety of positions across the organisation. About that there is no dispute. Mr Panigiris may
not have known about the extent prior to looking at
Mr Greenhalgh’s affidavit, but the fact that it’s been used is not put into contention.
PN297
We accept that the use of it for a station manager and duty manager position is new, new only to the extent that it hasn’t been
done for that position before. But if you take then the proposition that is put by the unions, the fact that you’ve got a
policy that applies across every employee in the organisation and the fact that the implementation of an aspect of the policy has
not been required in a particular area before they would say that that means that you’ve got to go and make a decision and
consult about whether or not that policy can be applied. Let’s take, for example, a different policy: the secondment of an
employee. And in
Mr Greenhalgh’s affidavit, mainly for reference purposes, but at annexure C he’s extracts just two pages of an index of
policies to give you a feel for different policies.
PN298
Let’s look at, for example, item 5, or what is B5 which is of course regarding secondments. Now, if you take the proposition put forward by the union, if there was ever a - well, the first time a decision is made to apply a secondment policy to an SM position, well the fact that the policy has been there for years is irrelevant. We’ve got to go back and start from scratch again because it hasn’t applied to that position. Do you expand that to say - - -
PN299
THE SENIOR DEPUTY PRESIDENT: No it’s not, no. It’s not irrelevant and you don’t have to go back to scratch. What you do need to consider is whether what you’re proposing to now implement, and you have the right to implement it, but what you’re now proposing to implement must be done conscious of 8.6. No one is suggesting that what I call the underlying dispute here, nor an underlying dispute in the secondments policies are applied for the first time to these people can’t be the subject of a dispute and it might be a dispute that’s not resolved. But once it is finished, once it’s gone through each of the steps, that’s the end of it and that’s the extinguishment of the status quo.
PN300
So I’m just a little concerned about the comment about back to scratch, there being some suggestion that you can be required to revisit your secondments policies.
PN301
MR WOOD: Well, in looking at the proposition put in his affidavit by
Mr Panigiris that the members didn’t agree about the application of the policy. I did ask him about that and he talked about
the disputes procedure. But the - - -
PN302
THE SENIOR DEPUTY PRESIDENT: The selection process.
PN303
MR WOOD: The selection process, that's right. And I would submit that there is clearly a proposition that if we go down that track of no agreement, then the fact that you go through a process still means that things may not be applied because there’s no agreement because the inherent proposition, I would say, from his evidence is really that there has to be agreement.
PN304
THE SENIOR DEPUTY PRESIDENT: I don’t think it’s inherent at all. I think expressly he did not accept what you were suggesting to him, that they could for all time decline to agree with you as to how the assessment centres were to be used in the process of selecting DMs and SMs and for all time you stopped in your track and did not accept that.
PN305
MR WOOD: Your Honour, he did say that you go through that dispute process.
PN306
THE SENIOR DEPUTY PRESIDENT: Yes.
PN307
MR WOOD: We didn’t get to the point of what happens at the end if there’s no agreement. I think it’s probably a position that was put in terms of looking at his evidence. I guess I didn’t put that, that proposition wasn’t put to him in either sense in the - - -
PN308
THE SENIOR DEPUTY PRESIDENT: Well, let’s just take the hypothetical. Why isn’t the answer that ultimately it ends up before the Commission which you concede, you say, the status quo is the end vote, but the underlying dispute is one that can ultimately end up in accordance with step 6, resolved by the Commission? One resolution might be go full steam ahead, continue to do what you’re doing, the Commission’s not going to stop you? That could be a resolution. It’s one that mightn’t make the union happy, but it’s been resolved in accordance with the DSP. It’s just that whilst you’re awaiting the Commission choosing the status quo has put into a holding pattern the requirements for this group of persons to be subject to an assessment centre step.
PN309
MR WOOD: And it may well be that we don’t ever get to step 6 in the process because the matter stops at step 5.
PN310
THE SENIOR DEPUTY PRESIDENT: What’s step 5?
PN311
MR WOOD: Which is the conciliation step because a matter doesn’t arise as something that is capable of arbitration in step 6.
PN312
THE SENIOR DEPUTY PRESIDENT: Well, again I’m just using the hypothetical in this case, that it seems in your submissions unlikely this seems to be, the underlying dispute, seems to be a matter that could go all the way through to step 6.
PN313
MR WOOD: I would not concede that this could go to step 6.
PN314
THE SENIOR DEPUTY PRESIDENT: I thought that you had?
PN315
MR WOOD: No, no.
PN316
THE SENIOR DEPUTY PRESIDENT: All right.
PN317
MR WOOD: I have not conceded that what’s in issue here - - -
PN318
THE SENIOR DEPUTY PRESIDENT: All right. No, we might be at the underlying dispute could go to step 6 I understood you conceded. You say that the relevance of the status quo and the words in 8.6 isn’t one that can go through to step 6?
PN319
MR WOOD: No, sorry. I'll clarify that then. What I say is that because of the breadth of 8.2, it being any dispute about absolutely anything, the colour of paper or whatever, is something that could come within the dispute procedure. Whether or not that matter ends at step 5 or step 6 depends upon an analysis of the particular dispute and the words of step 6 because if it doesn’t arise out of - and I can turn to the words - a matter that’s interpretation of application of the terms of the agreement, then you don’t get to step 6. The matter would be a dispute which is incapable of arbitration in those terms. So my concession is only in respect of this, that this may be something that can start off within the procedure, but it may stop at step 5 and not be able to go to step 6.
PN320
THE SENIOR DEPUTY PRESIDENT: The first sentence in paragraph 3.8 of your written submission shouldn’t be seen then as a concession consistent with what I had earlier understood was a concession? The underlying dispute is one capable of going through step 6.
PN321
MR WOOD: No, it shouldn’t be read in that way.
PN322
THE SENIOR DEPUTY PRESIDENT: I did not understand that to be RailCorp’s position, but I now understand it to be.
PN323
MR WOOD: Yes.
PN324
THE SENIOR DEPUTY PRESIDENT: Then whilst you’re there may I take you to the EBA and in particular one of the matters dealt with by the EBA, the consultation process. One of the matters that can be the subject of a consultation process whereby a consultative committee might become involved is under clause 7.1(viii)(j), human resource policies and arguably the selection process is one such policy?
PN325
MR WOOD: A selection process policy is one such policy.
PN326
THE SENIOR DEPUTY PRESIDENT: Yes, the existing.
PN327
MR WOOD: Yes, the existing policy.
PN328
THE SENIOR DEPUTY PRESIDENT: I'll make sure I use the correct term. The selection policy is one such policy found within the human resource policies. Now, if there’s a problem about trying to resolve those matters clause 7.3 says the dispute will be dealt with in accordance with the dispute settlement procedure at clause 8.
PN329
MR WOOD: Yes.
PN330
THE SENIOR DEPUTY PRESIDENT: Let’s assume that there is such a dispute about a human resource policy and let’s assume for the time being I was persuaded by the union that the policy as reflected in the 2001 policy is not being observed, there’s been changes to it that are significant and arguably at odds with it. Why could not a dispute about that matter which could be described as the dispute, grievance or problem, be one that could go all the way through the steps including, whilst it’s going all the way through the steps to step 6, the subject of the invocation of clause 8.6?
PN331
MR WOOD: I’m sorry. If I understand your question, does 8.6, whether there’s an application of 8.6 involve the use of step 6? Is that in respect of that matter?
PN332
THE SENIOR DEPUTY PRESIDENT: I don’t know the answer to that.
PN333
MR WOOD: That’s in part, we say there is a legitimate basis to be here before you today to decide whether or not there has been consistent application of clause 8.6. Step 6 gives the Commission, step 6 in 8.2, gives the Commission jurisdiction to sit today and determine whether or not in the current matter 8.6 has been breached, interpret how 8.6 applies to that - - -
PN334
THE SENIOR DEPUTY PRESIDENT: I don’t like that term, by the way. Breached suggests what I often find comes in these matters, a suggestion about the exercise of a judicial function. Don’t tell me that at any stage, Mr Woods.
PN335
MR WOOD: I’m not raising that. Perhaps compliance? Application?
PN336
THE SENIOR DEPUTY PRESIDENT: Whether the circumstances, the facts here are such that whilst going through the disputes settlement procedure is appropriate to invoke 8.6. That’s what I think I’m doing.
PN337
MR WOOD: Yes. And you get there because there is a power in step 6 in the procedure to do so. Because ultimately it’s a question of a dispute or interpretation application of 8.6.
PN338
THE SENIOR DEPUTY PRESIDENT: Yes, I'll think about that. I just don’t know. Often the situation will be the Commission has nothing to do with 8.6 because the two of you decide yes this is a status quo position and this is what we’ll do in the interim. We don’t know anything about it. Don’t ever need to know anything about it because the obligation to observe 8.6 is on you two, not on me.
PN339
MR WOOD: Correct.
PN340
THE SENIOR DEPUTY PRESIDENT: The peculiarity is that this situation has made a ruling on 8.6 necessary when normally one would only think the ruling comes because I’m dealing with the underlying dispute at step 6.
PN341
MR WOOD: That’s quite true and the Commission is never asked to deal with a whole range of things that might fall within the scope of an 8.2 dispute because it just never comes before you.
PN342
THE SENIOR DEPUTY PRESIDENT: Of course not, yes.
PN343
MR WOOD: But that’s consistent with that question, if there is a disagreement or a dispute between the parties about the application of 8.6 to this issue. So that’s, in effect, a dispute within a dispute and out of step 6 comes the jurisdiction to make that determination, we say. So that’s the point that I make in relation to that. Whether or not the postulated issue that you raised about the human resources policy and those issues are a matter that as an underlying dispute, if we relate it to this, is a matter that can be determined under step 6. I make no submission either way about whether or not it does or does not fit within the wording of step 6. It may depend upon what ultimately falls in a particular dispute, and we’re talking hypothetical’s so you’re getting into a potential problem in that regard in dealing with that.
PN344
So that’s where perhaps what I put in 3.8. Hopefully we’ve now dealt with the understanding of the distinction through that. But what we then say in respect of the selection policy, if you determine that the selection policy amounts to a practice or procedure, that is one that falls within the scope of 8.6, Mr Carrick says that there has been a departure from it. We say there has been no departure from it. We say there’s no departure from it because the option of having an assessment centre is one of the options that’s applied in the policy and to draw out distinctions for application of a policy to one part of an organisation or another and result in ability to apply something like 8.6 to it is not what it is there to do.
PN345
What we say in respect of this policy is that we are following and implementing it. Now, Mr Carrick seeks to say that it’s not being used and seeks to rely upon some evidence of Mr Greenhalgh. Now, Mr Greenhalgh in my view in his evidence does not say that the policy is not being followed. Mr Carrick seeks to go to the question of whether or not the selection panel has determined that assessment centres are appropriate. Now, Mr Greenhalgh in his affidavit has made the statement that that has been done by the selection panel. The organisation may have a view about whether or not an assessment centre is the most appropriate method.
PN346
The selection panel has to agree on what is the most appropriate method and if they agree with the organisation then so be it and that’s a proposition that is outlined in the evidence of Mr Greenhalgh in terms of what has occurred.
PN347
THE SENIOR DEPUTY PRESIDENT: Why isn’t the evidence such that at the very least I could infer selection panels are required to invoke the assessment centre option in each and every occasion when they are selecting applicants for duty manager and station manager positions?
PN348
MR WOOD: Well, your Honour, the fact - - -
PN349
THE SENIOR DEPUTY PRESIDENT: Who would have been in the best position to have called evidence to say that there is no such direction? And I use the direction in the sense that there is nothing in writing, there is no indication that this will, without exception, be used, there is no suggestion that it should be the preferred option to be invoked? Indeed the comparison schedules is the two steps, an annexure to Mr Panigiris’s statement and paragraph 13 of Mr Greenhalgh’s, I would have thought would have allowed me on the evidence as it stands clearly toward that inference.
PN350
MR WOOD: Well - - -
PN351
THE SENIOR DEPUTY PRESIDENT: Somehow some way along the lines the selection panel know that with each and every occasion they are considering these candidates the assessment centre option will be invoked.
PN352
MR WOOD: Your Honour, we haven’t put evidence before you addressing that.
PN353
THE SENIOR DEPUTY PRESIDENT: And you could have?
PN354
MR WOOD: Well, I must admit that’s not an issue that we had considered was necessary to put before you. So if that be the case that’s where it’s been left. We would say that it’s not a proper inference to draw on the state of the evidence because the evidence that you actually have before you includes a statement by Mr Greenhalgh that that is not what has occurred, but that the selection panel made the determination to use the - - -
PN355
THE SENIOR DEPUTY PRESIDENT: I don’t doubt what Mr Greenhalgh has put and what is within his knowledge. I have no doubt about that. It’s just that I think the additional step from the documentation gives rise to my question, why shouldn’t I infer that that is now the ..... that’s the story, that’s the vibe at the very least, that the selection panel know they invoke that option? No discretion, no consideration, that will be invoked when they’re looking at candidates for SMs and DMs. And if that is so, isn’t it unarguable that it’s at odds with the selection process that’s been in operation since 2001?
PN356
MR WOOD: Well, in terms of the two propositions, clearly there was discussion before a selection panel was convened about use of the assessment centre, but to say that the selection panel did not make a decision which the policy says is what’s to happen I would say is a much bigger step to infer that they did not actually make a decision and to draw the inference that your Honour is postulating, that is what would have been necessary to do.
PN357
THE SENIOR DEPUTY PRESIDENT: I understand.
PN358
MR WOOD: As to whether there is a departure I still don’t see that there is a departure just because there has been on prior occasions the use of an interview panel technique or assessment because if you look at a practice and procedure in that context you have to look at the whole policy. What is the entirety of the practice and procedure that’s open and the assessment centre process, to use process in a different sense, is one of those things that is open to the application of the policy. So I don’t submit that it’s a departure in any way from what is the relevant practice and procedure, if you make that decision, and that relevant practice and procedure is the overall policy that is applicable.
PN359
Because if you were to go down that track and then follow that to every instance then you inevitably get to the area which I raised
before and cross-examined
Mr Panigiris about and which he conceded that changes in the questions or the waiting which is a practice and procedure that is involved
in a selection panel interview something about which there would need to be consulting if there was a change in respect of, in this
instance, a particular position just because on a prior selection panel there had been six questions asked for a category position
and the next time there is nine, you end up - - -
PN360
THE SENIOR DEPUTY PRESIDENT: The selection process doesn’t refer to how many questions you can ask within the development o the types of questions that are to be asked and who asks them. There’s nothing in the selection process that constrains there is something about this matter. So it’s not an example that I find very useful, the six or nine questions example.
PN361
MR WOOD: Your Honour, in trying to draw some line as to where this operates which is the purpose of doing so, if you say that something is a practice and procedure just because someone is at work then you get into the potential to have to make decisions about that. That is the point at which I am drawing that conclusion. So once you start down that track, where does it lead you? And I accept that - - -
PN362
THE SENIOR DEPUTY PRESIDENT: It will not be the first time that those in this court room, at least most of them, have heard me say I have generally avoided as far as possible publishing reasons for decision on status quo. This is an occasion I couldn’t avoid it. I understand that you say ..... I understand the submission you make. This is the first time I am called on to publish reasons for decision on status quo. I will do so, but I think it fair to say that many in this court room have heard me say that on more than one occasion, and probably twice in this very dispute.
PN363
MR WOOD: And it does as in terms of - - -
PN364
THE SENIOR DEPUTY PRESIDENT: It’s your agreement and I’ve got to make a finding what the facts are and a finding then on the applicability on 8.6, on what the words in 8.6 mean.
PN365
MR WOOD: Yes, that's right. And it’s only at that point that you then come to, if you are against us in terms of 8.6, you then come to the question of what happened in this particular case.
PN366
THE SENIOR DEPUTY PRESIDENT: Yes, I understand the - - -
PN367
MR WOOD: The process.
PN368
THE SENIOR DEPUTY PRESIDENT: Yes, the two submissions you make,
Mr Wood. I understood that.
PN369
MR WOOD: So in terms of enlivening the policy, I think that ultimately once you decide, if you decide to do so, to look at the operation of the policy, you must look at it with from a reasonable height and application because if you go down to too great a detail in terms of absolutely everything that happens just because it involves employees, then that’s when you get into problematic areas.
PN370
THE SENIOR DEPUTY PRESIDENT: Again I know that.
PN371
MR WOOD: And for that reason - - -
PN372
THE SENIOR DEPUTY PRESIDENT: Those in this court room know it even better. Many of those in this court room know it even better than I do.
PN373
MR WOOD: And that’s why I say that when you look to do that task with this selection policy then you must look at is what has occurred something that is consistent with the policy because it’s only by dealing with it at that point that there is a level of consistent clarity which the parties can understand. So that if a dispute arises in respect of a policy, is a question of looking at what are ..... and because that policy amounts to a practice and procedure it’s a question of what is allowed by that policy because there will be safety in the written word about that, that it becomes applied which is why we say that since the assessment centre option is part of the policy and that we say it is applied across a range of position and we say it has been applied in this case, that that is the point at which the line should be drawn. Just excuse me for a moment. There’s nothing further, your Honour.
PN374
THE SENIOR DEPUTY PRESIDENT: Mr Carrick, anything in reply?
PN375
MR CARRICK: Just very briefly, your Honour. Just picking up on Mr Wood’s last point. He says that the question has to be posed, is it consistent with the policy. We say that’s not the question. The question is, is there a change of practice and procedure. But even if you were to think the question is, is it consistent with the policy, I'll go back to the matter you raised, your Honour, about the inference that you could draw and say you certainly can draw the inference you suggested for these reasons. Mr Greenhalgh’s evidence would lead you to that inference.
PN376
He did concede at one point that it was a decision - using the assessment centres we’re talking about - it was a decision that the corporation was going to make, or it’s a corporation decision. He then went backwards and forwards a little bit, but beyond that just if I could - - -
PN377
THE SENIOR DEPUTY PRESIDENT: I don’t know that he went backwards and forwards. His evidence went as far as that which he knew of his own knowledge. I am going further again and saying why can’t I draw an inference from what is in writing and the absence of any other evidence? Why can’t I draw an inference that someone has got the story through to selection panels that without exception you use assessment centres?
PN378
MR CARRICK: Indeed, your Honour, and my point is that - and I think I’m just endorsing your Honour - that is that Mr Greenhalgh’s evidence didn’t take you away from that direction, if you know what I mean. But just quickly, paragraph 8 of my submission, the letters, the documentation that is what I was going to go on to say, is Mr Greenhalgh’s evidence is one thing, but then probably even more than that you have this documentation that says on 8 May RailCorp’s intention to adopt a new merit selection process, 1 June regarding the proposed selection process and then 15 August, the list the new process and distinguish it from the other, then 23 August - this is in paragraph 8 - following the introduction of the new assessment process.
PN379
So clearly there is a corporate decision to introduce a new assessment process. I mean, that is just on those documents. That’s the only thing I was going to add.
PN380
THE SENIOR DEPUTY PRESIDENT: If I was with you, what do you say about the consequences of a ruling that this was a situation that was appropriate to invoke 8.6 and that 8.6 wasn’t properly applied? Let’s assume that I did make that ruling. I am conscious of the matters deposed to in Mr Greenhalgh’s affidavit, particularly at paragraphs 14 and 17 how far down the track the selection process has now gone further for station managers than for duty manager. Do you want to take some instructions?
PN381
MR CARRICK: I would have to get instructions about that, your Honour.
PN382
THE SENIOR DEPUTY PRESIDENT: This is an egg that can not be unscrambled. If you think it can be and that will be the position you will be asserting if successful on status quo, I want to know that now. I'll take a short break for you to get instructions.
<NO FURTHER PROCEEDINGS RECORDED
LIST OF WITNESSES, EXHIBITS AND MFIs
GEORGE PANIGIRIS, AFFIRMED PN29
EXAMINATION-IN-CHIEF BY MR CARRICK PN29
EXHIBIT #RTBU 1 STATEMENT OF MR PANIGIRIS DATED 09/03/2007 PN35
CROSS-EXAMINATION BY MR WOOD PN46
RE-EXAMINATION BY MR CARRICK PN80
EXHIBIT #RTBU 2 ENTRY LEVEL POSITIONS 8 PAGE DOCUMENT PN98
THE WITNESS WITHDREW PN103
GREGORY ROBERT GREENHALGH, SWORN PN114
EXAMINATION-IN-CHIEF BY MR WOOD PN114
EXHIBIT #RAILCORP 1 AFFIDAVIT OF MR GREGORY GREENHALGH PN121
CROSS-EXAMINATION BY MR CARRICK PN142
THE WITNESS WITHDREW PN257
EXHIBIT #RTBU 3 SUBMISSIONS OF RTBU PN271
EXHIBIT #RAILCORP 2 SUBMISSIONS OF RAILCORP PN283
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