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Interpretive Decision??

Email September 2012

I must say ***** I was surprised to learn that you were at a meeting where the new Category Lowering option was discussed. I know you said it was only a discussion and not set in concrete, but at some stage – it was. Again, the timing of this bothers me, but more so now is the discussion itself.

Experienced operators were fully aware of the power that the Department have and the probability of them eventually deciding their own rules. Therefore, most operators went into this RFT trying to anticipate those likely changes. This is why so many operational questions were asked at the briefings though some were not addressed at all.  I believe these questions became quite a problem preventing you from fully explaining the Tender process and so Department staff were prevented from attending after the second brief. Being from Procurement, you may not have realized their importance.

Of course those reasons have now presented themselves. We NEEDED to know what type of interpretations they would make and what types of changes they would apply because we NEEDED to base our prices on these possibilities.  Can you appreciate how frustrating it is to find that even with all our forethought and planning in an attempt to  foresee all possibilities (in particular the Category lowering) they still manage to change whatever they like, even after denying it would happen? The question was asked and answered. Really, how much more could we have done?

Two people from management were present at this briefing. Were they also present at the meeting you speak of? How can a discussion take place on a subject when at least 3 people present were aware of the already given answer? Did they simply ‘forget’ they had answered this, also adding examples for emphasis? Why was this topic even mentioned at the meeting? Why was it not halted by someone when it was? Why would a discussion proceed knowing it would jeopardize the integrity of the Tender? At any time in this discussion did anyone even question the validity of changing that which had been answered? Did anyone even purport that it would be wrong to now introduce this? Did anyone even consider the ethics involved?  I have to wonder *****, was it operators posing the question in the first place that effectively brought it about?

Who collaborated over which clause they could slip this under in the contract? And why has this clause been denied to operators after continual requests? If this method of payment is validated as such by being transparent in the contract why do they flatly refuse to volunteer the information to us? Are they afraid it would have caused even more turmoil in those early months? Did they presume by stalling with answers that we would settle back and accept this method? Do they think that by simply applying a new procedure it gives them the right to do so? Do they believe its application over a period of time would suggest its accepted legitimacy?

At NO time have the Department communicated any information to operators about this extreme change in their interpretation. They have not had the decency to even reply to these requests and it is now September. Possessing no compassion is one thing, but surely the Manager can show a bit of common courtesy. I really try hard not to judge people, especially those I don’t know, but I must admit it is becoming awfully difficult to separate the problems we experience from the person behind them. Unless mistaken, and these problems are caused by another, then perhaps all the dialect coming my way may be justified in me believing.

In the meetings prior to the release of the Tender, it was noted that the manner in which runs are allocated is the best way to achieve savings rather than cutting costs. I don’t disagree. Please note the timing here – PRIOR to the release of the RFT. Either the idea of the ‘Pay per Pupil’ method had not been dreamed up then, OR, the answers given at the Tender brief were outright lies. Do you know which *****?

How can this NOT be seen as deliberate deceit? How can any trust whatsoever be felt by operators? Are we obliged to just sit back and accept any change they decide upon at any time? While I believe it important to correct as much as possible through your contract disambiguation, I realize now that it will ultimately be impossible to change anything between the Department and the Operators. The very thing needed and the hardest to gain, is trust. Yet, with the Department’s history of continually reinterpreting clauses benefiting them and disadvantaging operators I wonder just what impact your new transparent contract will actually have. If a change can be made so easily to a clause that is already transparent, well explained, well understood, accepted, and contains adequate examples, then ANY clarity you bring will only be of benefit as long as it is suitable to them. Once another method to retract payments is discovered, those clauses will be useless.

While polite of you to call it this, and beneficial for the Department to accept your label, it is NOT an interpretive issue. Management may feel this term appears to decorate their decision but this is only semantics. To us it spanks of cunning. It is nothing but a contrived and methodical manoeuvre from people bent on keeping operators humble. To us it is morally and legally wrong and symptomatic of the superiority culture rife throughout AST. Their callous intent to intimidate operators into submission then justify it as efficiency is anything BUT an interpretive issue.

The clauses are clearer to operators than the “Mystery of 4.5 Part B” – and that was a stretch. I believe the saying goes, “All of the people can’t be wrong all of the time”, yet apparently, the interpretation of about 650 operators is wrong while a few Public Servants are right. Go figure the odds on that!






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