<MARK STROPPIANA, RECALLED [10.01 AM]

EXAMINATION-IN-CHIEF BY MS FAWCETT [10.01 AM]

PN411

THE COMMISSIONER: Mr Stroppiana, can I thank you for returning here today?‑‑‑Sure.

PN412

I have previously administered the affirmation to you and you are still bound by that, having been recalled as a witness. We should, as a housekeeping matter, deal with your supplementary witness statement. Do you have a copy of that there with you?‑‑‑I do.

PN413

Are there any amendments you would like to make to the witness statement?‑‑‑No, Commissioner.

PN414

Are its contents true and correct?‑‑‑They are.

PN415

Would you have me receive it as your evidence in these proceedings?‑‑‑Yes.

PN416

The advocates can correct me if I'm wrong, but I think we are up to exhibit 41. Exhibit 41 will be the supplementary witness statement of Mark Stroppiana.

EXHIBIT #41 SUPPLEMENTARY WITNESS STATEMENT OF MARK STROPPIANA

PN417

If you just wait there, Ms Fawcett has some questions for you.

PN418

MS FAWCETT: Thank you, Commissioner.

PN419

Good morning, Mr Stroppiana, can you hear and see me okay?‑‑‑Yes, I can, I can hear you and see you.

PN420

Thank you. If I could firstly take you to paragraph 6 of your supplementary statement?‑‑‑Yes.

PN421

Can you confirm that in September last year, there were 46 employees who met the eligibility criteria of section 66B(1) of the Fair Work Act for conversion who were sitting in active merit pools at the time of assessment?‑‑‑Yes, that's correct.

*** MARK STROPPIANA XN MS FAWCETT

PN422

Just moving on to paragraph 7, of those 46, there were 19 who weren't made an offer because there was no existing vacancy at the time they were assessed?‑‑‑That's correct.

PN423

I think that's some 41 per cent of the 46, the casual - - -?‑‑‑Yes, sounds correct, yes.

PN424

Thank you. Since that time, your statement says that 12 of those 19 were made an offer of ongoing employment but not through the casual conversion process, through some separate process?‑‑‑That's right, through normal merit-based recruitment processes.

PN425

If I can take you to the spreadsheet attached to your statement at MS1?‑‑‑Yes.

PN426

Just looking at the current employment status column?‑‑‑Yes.

PN427

Where you have included the dates the ongoing offers were made?‑‑‑Yes.

PN428

Many of those offers separate to the casual conversation process, through some separate process, those offers were quite recent, weren't they?‑‑‑That's right, yes. As I just mentioned, the offers that have been made to these 12 employees subsequent to the casual conversion process in September were all made through merit-based recruitment processes because, remember, these employees are sitting in merit pools and that's where these offers have come from.

PN429

THE COMMISSIONER: Mr Stroppiana, if you make seven more offers, there will be no meat on the bone in this proceeding?‑‑‑Indeed, that's correct.

PN430

MS FAWCETT: So those 12 offers, they were not at all connected to the agency's obligations under the NES for casual conversion?‑‑‑That's correct.

PN431

If we can just stay with that spreadsheet at MS1 and just looking at the remaining seven?‑‑‑Yes.

PN432

You have one on line 1, a casual who has not received an offer as part of the casual conversion process or any other process?‑‑‑Yes.

*** MARK STROPPIANA XN MS FAWCETT

PN433

They had, at the time the spreadsheet was collated, one year and 10 months' service?‑‑‑That's correct. So, that's one year and 10 months' service as at 31 January 2022, so we could now say one year and 11 months' service.

PN434

Okay, thank you, that's helpful. That's the same for the casuals on lines 2, 4, 6 and 12, they also, as at 31 January 2022, had one year and 10 months' service with the agency?‑‑‑On line 2, yes, that's right, and then there's one on line 4, is it, who's got one year and 10 months, and line 6, yes.

PN435

And line 12, I think?‑‑‑Line 12, yes, I agree there's one there, a casual with one year and 10 months' service. I'm not counting, but I'm sure you're correct that that's line 12.

PN436

So, we have line 1, line 2, line 4, line 6, line 12?‑‑‑Yes.

PN437

Casuals on those lines have received no offer, not as part of the casual conversion process or any other process, who have a length of service of one year and 10 months with the agency?‑‑‑That's correct.

PN438

Thank you. Then if we turn to line 17, a casual on line 17 who also has no offer of any kind?‑‑‑Yes, this - - -

PN439

They have three years and five months' service with the agency?‑‑‑That's correct.

PN440

Then the casual on line 19 who has received no offer of any kind, neither through casual conversion or any other process, had five years' service with the agency?‑‑‑That's correct.

PN441

THE COMMISSIONER: And they are currently sitting in a merit pool; is that right?‑‑‑They were sitting in a merit pool as at September 2021. Whether they are - because that merit pool expired, its 12 months expired, I think, in November or December, so I can't say for certain whether all or each of those casuals we have just talked about, those seven casuals, whether they are sitting in the current APS 3/4 merit pool. Certainly they were in September and certainly the ones who have been made offers, you know, particularly the ones this year, obviously are sitting in the new updated APS 3/4 merit pool.

PN442

Yes, I understand.

*** MARK STROPPIANA XN MS FAWCETT

PN443

MS FAWCETT: But, at the time of assessment, Mr Stroppiana, the time they were assessed for casual conversion, they were sitting an in active merit pool, they met the eligibility criteria under the Act and they had just shy of five years' service with the agency?‑‑‑That's correct.

PN444

Those employees that we have just been through on lines 1, 2, 4, 6, 12, 17 and 19, they met the eligibility criteria at section 66B(1), they were sitting in active merit pools at the time of assessment, they have not received an offer of any kind, whether through casual conversion or some separate process, and their length of service ranges from one year 10 months to three to five years?‑‑‑Yes, that's correct.

PN445

Thank you, those are my questions, Mr Stroppiana. Thank you.

PN446

THE COMMISSIONER: Thank you. Any cross-examination, Ms Sekler?

PN447

MS SEKLER: No, Commissioner.

PN448

THE COMMISSIONER: All right, thank you. Mr Stroppiana, you are now properly excused as a witness?‑‑‑Thank you.

<THE WITNESS WITHDREW [10.09 AM]

PN449

THE COMMISSIONER: Ms Fawcett, Ms Sekler, what do you want to do from here? Do you want an opportunity to file further written submissions, or I think we were just going to go into oral submissions, weren't we?

PN450

MS FAWCETT: Thank you, Commissioner. The CPSU made closing remarks at the last hearing. I do have some short closing remarks following Mr Stroppiana's evidence, but we would be content to leave it at oral submissions (indistinct) the resolution of - - -

PN451

THE COMMISSIONER: Yes, I agree. Do you need a break or should we get straight into it?

PN452

MS FAWCETT: I'm fine to get straight into it, thank you, Commissioner.

PN453

THE COMMISSIONER: All right, we will hear from you first, Ms Fawcett.

*** MARK STROPPIANA XN MS FAWCETT

PN454

MS FAWCETT: Thank you. So the employees that are subject to this part of the dispute are 19 employees who were eligible for conversion under section 66B(1), who were sitting in active merit pools at the time of assessment, who were told they would not be made an offer because there was no existing vacancies at that point.

PN455

Now, those 19 employees of the 46 are 41 per cent of the casuals who were sitting in active merit pools, who were eligible, who should have been made an offer but were not. Those casual employees are not new employees, their length of service, as you can see from Mr Stroppiana's evidence, is extensive, from, you know, close to two years to five years. They are long-term committed employees who should have had the opportunity of being offered ongoing employment in Services Australia.

PN456

Services Australia will say, 'Well, 12 of the 19 were actually made an offer' and, look, that is no small thing for those employees who finally had the opportunity of job security in the agency that they are so committed to. But, frankly, it's not good enough because those offers came through not as a result of the agency's correct application of the casual conversion term but through some separate other process.

PN457

It is imperative for the remaining seven, who were long-term employees who have had no offer of any kind and, indeed, for the 12, who should have received an offer back in September, and for the many thousands of casual employees who are currently in the employment of the agency that Services Australia applies that casual conversion term correctly in the way that parliament has legislated for.

PN458

Thank you, Commissioner, I will leave my remarks there.

PN459

THE COMMISSIONER: Yes. Ms Sekler, anything further?

PN460

MS SEKLER: Yes, Commissioner, I also have a few brief remarks, and thank you for the opportunity to provide them.

PN461

Public sector employment, particularly in the Commonwealth, is different to private sector employment. It is statutory, and that's well recognised in the CPSU's submissions and also in cases such as The Director General of Education v Suttling [1987] HCA 3, and so a direct analogy can't be made between the two. That itself is recognised, we submit, in section 66C(2)(d) of the Fair Work Act and it's also recognised in the Explanatory Memorandum, both of which make it clear that parliament intended to provide public sector employers, including the Commonwealth, with a reasonable ground not to make an offer that is specific to public sector employment, namely that the offer doesn't need to be made where it would not comply with a recruitment or a selection process required by law.

PN462

Of course, the Commonwealth also retains the ability to rely on other reasonable grounds. That's not the case here, but it does retain that ground. That is set out in section 47 of Service Australia's submissions.

PN463

Section 66C(2)(d) picks up those recruitment and selection processes that are set out in the APSC Directions. It picks up all of them, not just specific parts and, therefore, it picks up the need for the existing vacancy before an offer of casual conversion must be made, and that itself is part of the merit processes in Commonwealth Public Service law, directed to ensuring the most suitable members of the Australian community secure the vacancy.

PN464

The Directions are neither expressly inconsistent with section 66B and C of the Fair Work Act when those are read together, nor is there a clear implication of inconsistency available, and that's because 66C(2)(d) provides for the direct and unambiguous preservation of the recruitment and selection processes in the Directions as being a reasonable ground to decide not to make an offer.

PN465

Due to that, it can't, as a matter of parliamentary intention, be said that there is inconsistency that, say, covers the field because the Fair Work Act somehow covers the field or because the Directions impermissibly impair or detract from the operation of the Fair Work Act. They are picked up and preserved by the Fair Work Act, and cases that deal with the sort of inconsistencies that are addressed there include Gentle v Racks [1902] 1 KB 160 at 166, which talks about repugnancy occurring if something inconsistent with the provisions of the statute is added, and State of South Australia v Tanner (1989) 166 CLR 161 at paragraphs 14 to 19, where the plurality really stress the need for a reason to suppose that there is an inconsistency.

PN466

Here the Fair Work Act, the Public Service Act and the Directions are all part of a single body of Commonwealth law and they should be construed accordingly, and if a reasonable construction can be put on them which causes that to happen, that's the construction which should be adopted in line with what His Honour Justice Wells said in Myer Queenstown Garden Plaza Pty Ltd v Port Adelaide Corporation (1975) 11 SASR 504 at 540 to 542 and we submit that that's the construction that the Commonwealth has put forward.

PN467

The existing Commonwealth merit recruitment or selection processes in the Directions, including the vacancy requirement, do not have the consequence that casual conversion can't occur or doesn't occur either as a matter of statutory interpretation or as a matter of fact. Your Honour has heard the evidence of Mr Stroppiana, which shows that casual conversion has occurred where a vacancy existed at a site or an adjacent site to where the casual worked, and a majority of the casuals who were eligible were offered casual conversion. Most of the remainder have subsequently been offered ongoing employment in line with Service Australia's constant reassessment of its workforce needs.

PN468

The evidence of Ms Houghton and Mr Stroppiana shows that the engagement needs of the Commonwealth as they pertain to Services Australia are fluid to try to meet operational demand and they are consequently subject to that process of reassessment.

PN469

Sections 66B and C indicate that casual conversion requires also the point in time assessment. This is supported by section 66F, which then permits an employee to request casual conversion at intervals after they have been denied it.

PN470

No further submissions, Commissioner.

PN471

THE COMMISSIONER: Thank you. Anything in reply, Ms Fawcett?

PN472

MS FAWCETT: Thank you, Commissioner, just briefly. I would stress that the Commonwealth here is a national system employer. That much is clear from the terms of the Fair Work Act. What is also clear is the provisions of the Public Service Act at section 8, which clearly states that the Public Service Act and its delegated legislation is subject to the Fair Work Act.

PN473

Now, section 66D does not allow the Commonwealth to go so far as to circumvent the very purpose of the casual conversion term. It's not so broad that it provides the Commonwealth as an employer with a veto. Section 66B requires the employer, whether they are private sector, whether they are the Commonwealth, but all national system employers, to create and offer ongoing positions where casuals are eligible. Dealing with the APS, the language that is relevant is the creation of a vacancy. That is what is required of the Commonwealth here. Section 66C only provides reasonable grounds if an offer cannot be made that is consistent with the recruitment and selection process that is required under Commonwealth law.

PN474

The CPSU says, and we might agree with the Commonwealth here, that there is in fact no inconsistency, that the Fair Work Act and the current Directions actually can be read consistently. These employees were sitting in active merit pools at the time they were assessed for conversion. The evidence of Ms Houghton and Mr Stroppiana shows that those employees sitting in those active merit pools were capable of being made an offer by the agency, so there is no inconsistency here that the Commonwealth can rely on to say that an offer cannot be made.

PN475

So, there is nothing to stop the agency from making an offer back in September. Those are the ways the provisions should be read together so that there is no inconsistency. Those employees should have been made an offer and that is the only way the Commonwealth can be seen to be upholding its obligations under section 66B.

PN476

Thank you, Commissioner.

PN477

THE COMMISSIONER: Can I thank both you, Ms Fawcett, and you, Ms Sekler, for those submissions. I have been greatly assisted by them. It is necessary for me to reserve my decision and I do so. The Commission is adjourned. Good morning.

ADJOURNED INDEFINITELY [10.20 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MARK STROPPIANA, RECALLED.............................................................................

EXAMINATION-IN-CHIEF BY MS FAWCETT.........................................................

EXHIBIT #41 SUPPLEMENTARY WITNESS STATEMENT OF MARK STROPPIANA PN416

THE WITNESS WITHDREW............................................................................. PN448