C2001/4229, Transcript of Proceedings [2001] AIRCTrans 2110 (29 August 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DRAKE

C2001/4229

COMMUNICATIONS, ELECTRICAL, ELECTRONIC,
ENERGY, INFORMATION, POSTAL, PLUMBING
AND ALLIED SERVICES UNION OF AUSTRALIA

and

AIRSERVICES AUSTRALIA

Notification pursuant to section 99 of the
Act of a dispute re alleged unlawful standing
down/lockout of SYRM members etcetera

C2001/4230

COMMUNICATIONS, ELECTRICAL, ELECTRONIC,
ENERGY, INFORMATION, POSTAL, PLUMBING
AND ALLIED SERVICES UNION OF AUSTRALIA

and

AIRSERVICES AUSTRALIA

Application under section 170LW of the
Act for settlement of dispute re alleged
unlawful standing down/lockout of SYRM
members etcetera

C2001/4232

CPSU, THE COMMUNITY AND PUBLIC
SECTOR UNION - PSU GROUP

and

AIRSERVICES AUSTRALIA

Notification pursuant to section 99 of the
Act of a dispute re union members and breach
of award etcetera

C2001/4237

CPSU, THE COMMUNITY AND PUBLIC SECTOR
UNION - PSU GROUP

and

AIRSERVICES AUSTRALIA

Application under section 170LW of the
Act re union members and breach of
award etcetera

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

SYDNEY

WEDNESDAY, 8 AUGUST 2001

EXTRACT OF TRANSCRIPT OF PROCEEDINGS [1.00pm]

PN1

THE SENIOR DEPUTY PRESIDENT: This decision which I'm about to deliver is an interim decision concerning issues which arise from a section 99 notification involving implementation of a new five-shift roster by Airservices Australia on 1 August 2001 and the consequences of that implementation. These consequences include employer directions to work the new roster, employee refusals to work the new roster, a series of warnings issued to employees which refer to the possibility of termination of employment and a general industrial situation involving conflict and heightened tension between the parties.

PN2

The notification has a long history before the Commission and a longer history between the parties. The matter has been conciliated by Commissioner Wilks. It has been listed before me on a number of occasions. A section 127 application was lodged by Airservices Australia and heard by me on 5 July 2001 following a prior attempt at implementation of the roster. On that occasion, set out at paragraph number 80 in the transcript of that proceedings, I said the following:

PN3

I'm not persuaded that I should issue the orders sought by Airservices. The roster sought to be implemented is the subject of an industrial dispute which is listed before me for resolution by arbitration on 13 July 2001. Given that the roster that is being worked is one that has been place since April 1989, I'm not persuaded that there is any justification or advantage in the forced introduction of a new roster in the fashion sought prior to the arbitration before me.

PN4

In less than perfect grammar, I then said:

PN5

It may very well be that the result of that arbitration is that the roster that is sought to be introduced by Airservices will be the roster. That is a matter to be determined on its merits before me in the proper fashion at the arbitration on 13 July 2001. I recommend that Airservices should desist from seeking to implement the new roster until the matter is dealt with by the Commission. If Airservices is not of a mind to do this, from such action the consequences that they refer to in their application will be the natural consequences of such a forced introduction and not something that they ought to complain of. I am not persuaded that the order sought should be issued.

PN6

and I then refused the application. The matter was listed before me on 17 July 2001. I was informed on that occasion that a proposed certified agreement had been placed before the workforce for their consideration and that the acceptance of the terms of that agreement would be likely to make the arbitration redundant.

PN7

Whilst I was pressed to proceed in any event, I decided that that was not appropriate and I stood the matter over for hearing on Monday, 13 August 2001 which of course is now four and a half working days away, including the weekend. This was a date which was one week later than the date on which the results of the workers consideration of the agreement was likely to be known. After 17 July 2001, Airservices Australia decided to implement the new roster as of 1 August 2001 contrary to my recommendation and obviously prior to the date on which the matter has been set down for hearing.

PN8

Mr Prendergast who is the Senior Manager of Airservices Australia, I'm sorry to say that I don't recall his exact title, was the decision-maker in relation to the implementation of that roster and for that decision relied on what he saw and I accept that he holds that view, as the overwhelming occupational health and safety concerns that were presented to him. The consequences I have referred to earlier in this decision and which I anticipated on 25 July 2001 have materialised.

PN9

The proposed agreement was rejected and the matter is still contentious and I have retained the hearing date on 13 August 2001 to resolve the substantive issues concerning this conflict. I understand and Mr Frew has confirmed today that Airservices Australia relies not only on occupational, health and safety concerns for the implementation of the roster but operational requirements and management's prerogative in relation to management of rosters and other matters.

PN10

I do not intend to deal today with the substantive issues for hearing for resolution before me on Monday 13 August. I intend to only deal with the Airservices Australia's occupational, health and safety concerns and the consequences of the implementation of the roster on 1 August 2001 in this decision today. This hearing has dealt with that interim question only and this decision which I'm now delivering is an interim decision only. I am not persuaded that there is any justification for the urgency felt by Mr Prendergast and on which he relied for the introduction of the new five shift roster on 1 August 2001.

PN11

He confirmed that that urgency that he felt about those occupational, health and safety concerns was the motivation for his early implementation of the roster. I say "early" in a very relative sense. Nothing about the resolution of this issue could have possibly be characterised as prompt. So early is a very relative consideration. The matters raised by management are serious issues. However, the opposing views of the workers seem to be reasonably based although I reach no conclusion as to whether or not they are correct.

PN12

The basis for urgent implementation seems to have been motivated also by an apprehension that something needed to be done and also to be seen to be done so that Airservices Australia was in a position to respond to the senate report, the minister's concerns which I am told he has expressed but I haven't seen any correspondence about - well, at least none directed to me - and as the response to properly held public concerns following Ansett's recently publicised safety issues.

PN13

The parties should remember that the critical issue concerning the eventual implementation of the new roster will not necessarily be the occupational, health and safety concerns which have been discussed at length before me during the last three days. There are other issues which will affect the resolution of the dispute. However, in this instance and for this purpose only, the issue has become the main focus of these hearings because of the employers focus on the issue as a justification for the 1 August 2001 implementation.

PN14

In my opinion, the conflict and anxiety generated by Airservices Australia's decision to implement this roster on 1 August 2001 has been unnecessary and the process confrontational. In all respects, it has as a result caused a greater risk to safety than any danger apparent to me of continuing the previous roster until 13 August 2001. This is a roster that has been in place since April 1989 and apart from some very sparse evidence about the effects of a quick change shift, there is no risk apparent to me on the evidence that I have heard to date which justifies the promotion of this conflict which has taken place because of the forced introduction of the roster.

PN15

I recommend and I do no more than recommend that Airservices Australia ceases the implementation of its new roster which was implemented on 1 August 2001. If Airservices Australia decides not to accept this recommendation, then I intend to make the following orders which shall apply until resolution of the issue by the Commission, that is the matters in dispute between Airservices Australia and its employees in Sydney, Radio Maintenance concerning the implementation of the roster.

PN16

These orders are that:

PN17

1. Any relevant employee who attends or has attended work since 1 August 2001 ready, willing and able to perform work on the basis of the old roster shall be deemed to have attended work in accordance with the relevant award and agreement whether Airservices Australia allowed that employee to proceed to perform his or her duties or not or whether because of the employees involved in the industrial dispute currently before me, the employee decided not to perform that work.

PN18

2. All warnings issued to employees arising from any such employees failure to work the new roster and which have been identified as a lawful direction by the employer shall be withdrawn, In relation to and irrespective of whether the old or the new work roster is worked and that will depend on a decision of Airservices Australia as a temporary measure and as contemplated by the occupational health and safety agreement between Airservices Australia and the unions, a document which is exhibit CPSU1. Any employee who has fatigue concerns which he or she feels may affect the performance of his or her work to the detriment of his or her safety or the safety of the public shall notify the next most senior person on shift in management and shall immediately seek a replacement or relief.

PN19

Airservices shall issue a direction to employees to engage in that conduct. Also for the duration of the period of the application of these orders, that is until resolution of this dispute by the Commission, the relevant managers shall take any precautions that they deem necessary to ensure all employees are alert and within safe fatigue requirements. They are undoubtedly matters that have been dealt with in the various reports that I haven't seen. That is the conclusion of my decision and orders.

END OF EXTRACT