C2002/1930, Transcript of Proceedings [2002] AIRCTrans 1800 (23 May 2002)

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TRANSCRIPT OF PROCEEDINGS


O/N VT03877

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER ROBERTS

C2002/1930

CIVIL AIR OPERATIONS

and

AIRSERVICES AUSTRALIA

Notification pursuant to section 99 of the
Act of a dispute re the Airport Services
Group's Career Development Program and
specifically the transfer of a member from
Brisbane to Bankstown without consent

MELBOURNE

11.17 AM, THURSDAY, 9 MAY 2002

PN1

MS J. PONTON: I appear for Civil Air Operations. I may have with me MR P. McGUANE who is the Executive Secretary of the union who is delayed at a meeting with our legal advisers. We are sorry about that but - - -

PN2

THE COMMISSIONER: Do you want to proceed without him?

PN3

MS PONTON: Yes. I don't know how delayed he will be.

PN4

MR K. O'BRIEN: I appear for Airservices Australia.

PN5

THE COMMISSIONER: This application is from which one of you?

PN6

MS PONTON: Civil Air.

PN7

THE COMMISSIONER: I will hear you, Ms Ponton. Now can I just tell you that I intend to conciliate the matter in accordance with section 100 of the Act so what I would like are brief - I mean brief - outlines. I don't want anybody running their case before the conciliation.

PN8

MS PONTON: No. I have got one page - - -

PN9

THE COMMISSIONER: Thank you.

PN10

MS PONTON: - - - prepared for me so I might be reading it. We actually were going to ask the Commission to exercise conciliation powers so we have hit that on the head.

PN11

THE COMMISSIONER: You have won the first round.

PN12

MS PONTON: Civil Air are seeking a commitment for Airservices, the employer, to pay transfer allowances in accordance with the terms contained within the Melbourne industrial instruments, that is the Airservices Australia Award 2000 and the staff policy manual. The situation that has brought about this matter to the Commission is a direction from Airservices to a number of its employees to transfer to other locations in circumstances where it is unclear, even ambiguous, as to whether the provisions of the staff policy manual will be applied. These employees are involved in what is called the Airport Services Career Development Program.

PN13

This program was developed last year and was described to the trainees as career progression through GAAP, which is General Aviation Procedures, regional and eventual return to a radar tower, radar control tower. In accordance with the dispute resolution process we endeavoured to resolve the matter on the ground between delegates and group leaders. When no firm answers were resolved we sought clarification from the relevant HR manager who is here with us today, Mr Kevin O'Brien. We can provide details of all this communication. All of it left us decidedly underwhelmed as to Airservices' commitment to pay these employees the appropriate transfer allowances.

PN14

We then proceeded to take the matter to the manager of Airport Services, Mr Daryl Cathrow. We wrote to him on 3 December 2001. The answers we received to date have been equivocal. These employees are entitled to be paid in accordance with the terms and conditions of the award and the staff policy manual and we seek the assistance of the Commission in ensuring that these employees will be transferred with the entitlements contained in these instruments. We note that the Commission has jurisdiction to hear the matter - I don't know that we need to get into that - as allowances form part of the allowable matters under section 89A(2)(j) of the Act and I also note there is some urgency for a clear outcome from this hearing as one member, for example, has been directed to transfer and report for work at a new location on 20 May 2002. If the Commission pleases.

PN15

THE COMMISSIONER: Ms Ponton, just before you sit down, so you allege a breach of the award or the agreement?

PN16

MS PONTON: I don't know that I can allege that in this Tribunal.

PN17

THE COMMISSIONER: That is why I am asking you?

PN18

MS PONTON: Yes, well, it is very unclear about what is being offered to them in relation to transfer and allowances and the problem is this gentleman has just had a baby, or his wife has just had a baby. All the things about packing up and moving, they haven't had quite, you know - the offer of allowances is a bit vague about the removal, meal and accommodation, rental subsidy. There was meant to be assistance with the sale of their home but they are renting from what I can gather in Brisbane. Also they have got to move to, well, Bankstown which is Sydney area so a bit expensive.

PN19

THE COMMISSIONER: All right. Well, before we get to that detail I will hear from Mr O'Brien and we will see what the problem is, if there is a problem.

PN20

MR O'BRIEN: Thank you, Commissioner. I had prepared some basic documents because it basically relies on the documentation which we have followed. We certainly do not believe that there has been any breach of the award or the enterprise agreement which are the two certified documents that are notified in the dispute notification. In actual fact we could almost say that there is a consideration of a breach almost by the employee in declining to move to another location because there is a longstanding commitment as an air traffic controller to transfer to locations where operational requirements are met. That is - - -

PN21

THE COMMISSIONER: I take it those are the provisions that you allege in your letter - sorry, Mr Abberton's letter of 2 May to CAOOAA?

PN22

MR O'BRIEN: Yes. There is, prior to an air traffic controller - I don't want to get into it at this stage because you want it brief, but we don't believe there is any breach and I will explain that further, I can support that - - -

PN23

THE COMMISSIONER: Can I ask you another question at this stage?

PN24

MR O'BRIEN: Yes.

PN25

THE COMMISSIONER: This gentleman is refusing to go or disputing the terms under which he is going?

PN26

MR O'BRIEN: Well, that is unclear because we have - as part of this program, which I will explain later, they are required to do Radar, GAAP and Tower and I think from your background you probably know what most of our - the different environments they are, and each of those, they have a period of time where they learn skills and the knowledge within those towers and then move on because basically they are straight out of college and the intention is to provide them with as much experience as quickly as possible basically so that they have this opportunity. So a period of roughly close to - up to 12 months in each of those locations and then they start to move, but it is - it is an issue because when they joined as an air traffic controller they join as a tower person these days or as an en route person, they don't cross over like years ago which you may be aware.

PN27

So with Airport Services we are the body that the government said that is open to competition and if anybody gets pushed away it is our body, basically, that gets pushed away - the air traffic controllers and the fire service we have. So it is strictly our towers where they would operate throughout.

PN28

THE COMMISSIONER: Just to avoid you possibly shooting some bullets you mightn't have to, Ms Ponton, can I ask you at this stage is this a dispute over the terms under which this person moves or is he, through you, refusing to move?

PN29

MS PONTON: Well - - -

PN30

THE COMMISSIONER: I got the impression from what you said - - -

PN31

MS PONTON: I will read you the wording of an e-mail I got. Our delegate suggested to him rather than say no to the transfer - what he has been saying is that his personal situation precludes his immediate transfer. He has only had five weeks or something notice of it, if that, and that they have just had the baby. They will have to cancel lease, a rental lease and all that kind of stuff.

PN32

THE COMMISSIONER: I understand his difficulties but is he saying - - -

PN33

MS PONTON: He would probably go if he had - - -

PN34

THE COMMISSIONER: - - - he won't go or is he saying I will go but later or is he disputing the terms under which he goes or some combination?

PN35

MS PONTON: Yes, we are all disputing the terms. The fact that he is directed to go rather than - the career development program was meant to be a voluntary thing to, you know, progress your career and now he is being directed to go. He is being told you are going and you are turning up on 20 May, pack up your stuff, get organised. So I - - -

PN36

THE COMMISSIONER: It still doesn't answer my question.

PN37

MS PONTON: Yes, well, from what I can gather he will go - - -

PN38

THE COMMISSIONER: If you don't know without Mr - - -

PN39

MS PONTON: He will go but he wants more time to sort it out and proper notice and the thing is Bankstown is probably a better place, he is getting into Sydney and there is a higher attainable salary eventually and also the experience of working around Sydney, even though there is a bit of trouble at Bankstown at the moment. So people aren't opposed to it. It is the fact that they - you know, there is probably plenty of people out there who would like to go to Bankstown, or before this week-end - - -

PN40

THE COMMISSIONER: I don't want you to argue it now because I have interrupted Mr O'Brien but let us be clear on this, he says that he will go?

PN41

MS PONTON: I think he would go - he will go with more notice - - -

PN42

THE COMMISSIONER: How about I put this to you and you can tell me yes or no - he will go but he doesn't want to go on the timeframe that the employer wishes him to go and there is some dispute over the financial terms of him going?

PN43

MS PONTON: Yes, yes.

PN44

THE COMMISSIONER: Okay. Mr O'Brien.

PN45

MR O'BRIEN: Well, there was a matter just raised then that the career development program is voluntary etcetera. The enterprise agreement, the contract of employment, both state that the person transfers as required. The career development program is designed basically to enable these people to obtain this experience which they would - and I could almost guarantee in a normal sense would not occur these days and it makes them a more complete controller is what we are after and on an individual basis it must be what they are after and for the aviation public it is a must with respect to that. Look, I might just leave it there and if you wish - - -

PN46

THE COMMISSIONER: All right. Are there any documents you do want to hand up, perhaps have marked now?

PN47

MR O'BRIEN: Yes. I would - it may help if I give you some - - -

PN48

THE COMMISSIONER: I don't have the award or the agreement before me.

PN49

MR O'BRIEN: Yes. I have got the extracts from the EBA, the award, etcetera, and the contract, career development program.

PN50

THE COMMISSIONER: Could you show those documents to Ms Ponton first?

PN51

MR O'BRIEN: I will give Ms Ponton a copy. I have got a copy for her.

PN52

THE COMMISSIONER: But before they are tendered I would like her to have a look. So you have no problem, do you, with the tendering of thee documents?

PN53

MS PONTON: No, no, I don't think so.

PN54

THE COMMISSIONER: They appear to be straightforward.

PN55

MR O'BRIEN: I think she may have seen them once or twice before.

EXHIBIT #R1 BUNDLE OF DOCUMENTS INCLUDING SECTIONS FROM THE EBA, THE RELEVANT AWARD, STAFF POLICY MANUAL AND CORRESPONDENCE AND MEMORANDA

PN56

THE COMMISSIONER: That being said and with the concurrence of both of you we will adjourn into conference. Is that okay?

PN57

MR O'BRIEN: Fine, thank you.

PN58

THE COMMISSIONER: That being so we adjourn into conference.

SHORT ADJOURNMENT [11.30am]

RESUMED [1.15pm]

PN59

THE COMMISSIONER: This matter is now resumed. During the break I have had the opportunity of conferring with the parties together and separately and the parties have had extensive discussions between themselves in my absence. I now direct the parties to further conciliation between themselves on this matter and failing settlement of the matter it will be set down for arbitration in Melbourne at 10 am on 28 May 2002. Directions orders to the parties will follow this hearing. We are now adjourned until 28 May.

ADJOURNED ACCORDINGLY [1.16pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R1 BUNDLE OF DOCUMENTS INCLUDING SECTIONS FROM THE EBA, THE RELEVANT AWARD, STAFF POLICY MANUAL AND CORRESPONDENCE AND MEMORANDA PN56