AG2001/5770, Transcript of Proceedings [2001] AIRCTrans 2621 (3 October 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 0255
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

BOULTON J

AG2001/5770, AG2001/5772-5787

APPLICATION FOR VARIATION OF
CERTIFIED AGREEMENT

Application under section 170MD(2) of the Act
by the National Union of Workers to vary the
Ansett Australia Union Collective Bargaining
Agreement 1999

APPLICATION FOR VARIATION OF
CERTIFIED AGREEMENT TO REMOVE
AMBIGUITY

Applications under section 170MD(6) of the Act
by Ansett Australia Ltd and Others re stand down
clause

MELBOURNE

7.40 PM, FRIDAY, 14 SEPTEMBER 2001

PN1

MR R. WATTS: I appear on behalf of the Australian Council of Trade Unions.

PN2

DR G. SMITH: I seek leave to appear for the Administrator of Ansett Holdings Limited and the same subsidiaries that - perhaps for the benefit of this new matter, I should name them.

PN3

HIS HONOUR: Yes.

PN4

DR SMITH: Kendell Airlines Australia Pty Limited, Hazelton Limited, Aeropelican Air Services Pty Limited, Skywest Airlines Pty Limited, Ansett International Limited, Showgroup Pty Limited and Traveland Pty Limited and I think I mentioned Ansett Australia Limited already.

PN5

HIS HONOUR: Yes, thank you.

PN6

MR P. RICHARDSON: I appear for the applicant, the National Union of Workers.

PN7

HIS HONOUR: Yes.

PN8

MR WATTS: Your Honour, there is another matter that has been lodged and it may be more convenient that this matter be stood aside whilst we deal with the second matter, I presume we have before us. The applications that are made on behalf of a variety of employers and that they are - it may be best that we deal with those in the first instance.

PN9

HIS HONOUR: We will go off the record for a moment.

OFF RECORD [7.42pm]

RESUMED [7.47pm]

FOUR NEW APPLICATIONS: [7.47pm]

PN10

HIS HONOUR: Dr Smith.

PN11

DR SMITH: Thank you, your Honour. If I could hand up four applications which may well be with the Commission already - filed applications I am sorry. There is an application in relation - by Ansett - in relation to the Ansett Union Collective Bargaining Agreement 1999. There is an application by Hazelton in relation a number of Hazelton agreements, an application by Kendell in relation to a number of Kendell agreements and an application by Aeropelican in relation to two Aeropelican agreements and an application by Skywest Airlines Pty Limited in relation to four Skywest agreements.

PN12

The proposal is that those applications have not yet been lodged with the registry, that we seek relief from the rules under rule 6 in relation to the requirements to file and serve the applications. In relation to the issue of service, we have at the bar table, representatives of all the unions involved in relation to the applications.

PN13

HIS HONOUR: Yes.

PN14

DR SMITH: If you want me to proceed with an outline of the base of the applications, I am happy to do that or to - - -

PN15

HIS HONOUR: Yes, I am not sure if we have taken the appearances, so perhaps if we can go through the appearances and I can clear as to who is represented here.

PN16

MR R. WATTS: I appear on behalf of the ACTU and the various affiliates of the ACTU which responded - which are respondent to the Ansett Australia Collective Bargaining Agreement 1999. At clause 5 of that agreement there is a range of unions and it may be best if I read them out onto transcript, your Honour.

PN17

They are: the Licensed Aircraft Engineers Association, the Association of Professional Engineers Scientists and Managers of Australia, the Australian Workers Union, the Automotive Food Metals Engineering Printed and Kindred Industries Union, the Communication - or its successors, the Communication Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia, the Ansett Pilots Association, the Australian Municipal and Administrative Clerical and Services Union, the Transport Workers Union of Australia, the National Union of Workers, the Australian Liquor Hospitality and Miscellaneous Workers Union, the Community and Public Sector Union and finally, your Honour, the Flight Attendants Association of Australia.

PN18

Your Honour, the intention is if any are inadvertently missed, that we have the authority of the - all the affiliates respondent to the or employed by the companies which are in - currently in administration within the Ansett group other than those which - that are affiliated to the ACTU.

PN19

HIS HONOUR: Yes.

PN20

MR L. COX: I appear for the Australian Federation of Air Pilots in these matters.

PN21

DR SMITH: Thank you, your Honour, the basis of the applications are set out in identical terms in each of the applications. Your Honour would be and is fully apprised of the circumstances of Ansett, that it has been placed into voluntary administration and overnight, ceased operations. The industrial instrument or many of the industrial instruments that apply to employees of Ansett and its regional subsidiaries, do not contain stand-down clauses or do not contain stand-down clause which would apply in the circumstances, the unfortunate circumstances that the parties find themselves in today.

PN22

There are insufficient funds immediately available to the Administrator to allow the company to pursue other options such as directing employees to take annual leave, which is commonly available, and if the company or the Administrator cannot stand-down employees it is likely to be faced with no other option but to terminate the employees immediately and - so the parties have agreed that it would be most appropriate to vary all of the certified agreements relying on section 170MD subsection 6(b) of the Act in the terms of the applications but with one minor variation which is not in the document that I have handed but I will address your Honour in a moment.

PN23

Now section 170MD(6) allows the Commission on application by any person bound by certified agreement which the Administrator is authorised under the Corporation of Law to bring such applications in the name of the companies to vary a certified agreement for the purpose of including, omitting or varying a term however expressed that authorises an employer to stand-down an employee. It would be our submission that the - the requirements of the Act in relation to any other form of variation of an agreement to have a valid majority and the like are not required in relation to an application of this kind.

PN24

The clause is a stand-down clause, it deals with stand-downs. The proposed clause would allow the Administrator to stand-down any employee without pay in the event that the employee cannot be usefully employed due to predominantly - and I will not read the whole of the clause but to the circumstances of the administration and/or because if there is insufficient work. Time spent on stand-down whilst stood down will not be deemed as service for the purposes of the accrual of leave or severance entitlements, there is a requirement for the employer to give employees as much notice as possible in circumstances of a stand-down.

PN25

And then there is a provision which Mr Watts will speak to in a moment about its intent and I will leave that to him and then there is some provisions of the clause which deal with the circumstances that an employee who has been stood down may, in fact, find other employment or wish to resign and not be deprived of their retrenchment entitlements should the administration or other sources - or other applications, perhaps, before this Commission finds such funds. And then there is an additional sentence which we would propose be added to each of the clauses at the bottom which would say:

PN26

Notwithstanding the above, this clause will cease to operate on 21 December 2001.

PN27

Just in terms of the proposed - yes, it would be proposed that the orders provide for a commencement date of the clause, the commencement of business on 15 September 2001.

PN28

In relation to the Hazelton application, the attachment in the third paragraph makes reference to the Australian Federation of Air Pilots. Your Honour has that?

PN29

HIS HONOUR: Yes.

PN30

DR SMITH: There would only be a reference in the Hazelton Airlines Pilots Agreement to the AFAP, the other three Hazelton agreements which do not have the AFAP as a respondent, would - there would be a deletion of the reference to the AFAP because the effect of that paragraph which Mr Watts will expand on in a moment is that if - well in the case of the Hazelton Pilots Agreement, the AFAP would be able to give notice in writing effectively to terminate the clause.

PN31

Now the same situation applies in relation to the Kendell application where the only - of the five Kendell agreements referred to, the only one that would - the only clause that would contain a reference to the AFAP would be the Kendell Airlines Pilots Enterprise Agreement 1998 and I think in relation to the Aeropelican application, the attachment does not make reference to the AFAP but it should in relation to the Aeropelican Air Services Pty Limited Pilots Enterprise Agreement 1999 because the AFAP, I believe - well if the AFAP are a party to that agreement, then the order we will put before your Honour on Monday will contain a reference to the AFAP. Mr Cox is shaking his head. We might be able to check.

PN32

HIS HONOUR: Yes. The application states that these are certified agreements.

PN33

DR SMITH: Yes.

PN34

HIS HONOUR: If they are not certified agreements then we should not be acting under these provisions.

PN35

DR SMITH: That is right.

PN36

HIS HONOUR: So that is something that you will check.

PN37

DR SMITH: We will check that. Yes, it is a certified agreement, your Honour, I have been shown it but it appears to be a non-union agreement so Mr Cox might not have known about it. But in that event, it perhaps ought to be - there ought to be no reference to either the - I think we will leave the ACTU in and take out the reference to the AFAP, your Honour.

PN38

HIS HONOUR: Yes. Well the reference, there was not a reference, I think, to the AFAP.

PN39

DR SMITH: No. So we will not include a reference.

PN40

HIS HONOUR: Yes.

PN41

DR SMITH: So those are the applications we would propose to provide to your Honour on Monday morning. The variations in the form of an order that can be signed.

PN42

HIS HONOUR: Yes.

PN43

DR SMITH: Those are my submissions.

PN44

HIS HONOUR: Thank you. Mr Watts.

PN45

MR WATTS: Thank you, your Honour. We concur with those submissions and the - these are extraordinary circumstances and they require extraordinary responses. I think the only thing that is flying at the moment is us by the seat of our pants. The - your Honour, the - we concur with the submissions made. In relation to the third paragraph, I would like to make some submissions, some explanatory view on the intent of the parties in relation to the third paragraph of the proposed clause. It relates in particular to the first sentence that deals with a view being formed by the parties and in particular the third - in the third paragraph there is mention of the word, well, perhaps if I read it in full:

PN46

This stand-down clause will operate from the date of the order inserting the stand-down and until such time as the Administrator and/or the Australian Council of Trade Unions or the AFAP where appropriate notifies the other parties in writing that is the view that there is no useful purpose to be served by the continuance of the stand-down clause -

PN47

your Honour, the intent there is that basically either party has an opt-out clause and that that be an automatic opt-out clause that once a party has formed a view that that view, once expressed, translates to a right to opt out of this clause and therefore would no longer operate. That is our submission, that is the intent of the parties in reaching consent over this matter. I have no further submissions in this matter, your Honour, other than to once again concur with Dr Smith and to thank the Commission for their time in this great hour.

PN48

HIS HONOUR: Mr Cox.

PN49

MR COX: Your Honour, just in relation to the orders in relation to the pilots agreements, obviously because the Australian Federation of Air Pilots are not affiliates to the Australian Council of Trade Unions and we operate in our own way that where those words appear, the Australian Council of Trade Unions in our pilots agreement, it would be the Australian Federation of Air Pilots be the active party. And that is our understanding of the agreement.

PN50

HIS HONOUR: Yes.

PN51

MR WATTS: That is correct.

PN52

DR SMITH: Your Honour, I did omit one thing. There may be a number of parts of the businesses that are covered only by awards rather than certified agreements or we indeed have missed some certified agreements and I am simply foreshadowing that we may need to come back to the Commission on this C number, I think it would be appropriate, with further applications, and concur with Mr Watts' statement about the intent of the paragraph. I think he did forget to say, though, that there was a requirement to - which is stated anyway, that the parties must notify the other parties in writing but I think he did not say it because it is written, so we concur with his statements.

PN53

MR WATTS: There is just one more thing, perhaps, your Honour, and that - if there are any subsequent applications to clarify these issues, that the intent would be that the operative date would in fact be the same as the operative date of these applications.

PN54

HIS HONOUR: Yes, thank you. There will be files made up in relation to each of these matters. I am satisfied having regard what has been put that the Commission should by order vary the various certified agreements to include the stand-down provision as outlined in the applications and as amended in the course of submissions.

PN55

The Administrator of Ansett and its various companies should file draft orders in relation to the matter as early on next Monday as possible. The operative date for the orders will be the commencement of business tomorrow morning. Perhaps it is appropriate that it commence at - - -

PN56

DR SMITH: Midnight.

PN57

HIS HONOUR: Midnight tonight or whatever is the appropriate way of describing it.

PN58

DR SMITH: I think midnight tonight.

PN59

MR WATTS: Midnight.

PN60

HIS HONOUR: There might be some issue about when the commencement of business is. The orders will have an operative date of that time and will apply for a period of three months. They will be amended as you have outlined, which I assume is an amendment to take them up to the same nominal expiry date as the agreements?

PN61

DR SMITH: Your Honour, not quite as simple as that but very close to the nominal expiry date.

PN62

HIS HONOUR: Yes. Well as close is probably as good as we can get it at this time of the evening after a long day. Yes, well, I will sign those orders on Monday with those operative dates. Thank you.

PN63

DR SMITH: Thank you.

PN64

HIS HONOUR: That concludes the proceedings.

ADJOURNED ACCORDINGLY [8.09pm]