C2001/5586, Transcript of Proceedings [2002] AIRCTrans 3247 (23 August 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, MLC Court 15 Adelaide St BRISBANE Qld 4000
(PO Box 38 Roma St Brisbane Qld 4003) Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HODDER

C2001/5586

QANTAS FLIGHT CATERING LIMITED

and

TRANSPORT WORKERS UNION OF AUSTRALIA

Notification pursuant to Section 99 of the Act
of a dispute re employment of casual labour

BRISBANE

10.40 AM, WEDNESDAY, 7 AUGUST 2002

PN138

THE COMMISSIONER: Could I have appearances, please.

PN139

MR J. McKENZIE: I appear for Qantas Flight Catering Limited. I have with me MR P. BREEN and J. McDONALD from the company.

PN140

THE COMMISSIONER: Thank you.

PN141

MR D. PRIOR: I am the industrial officer for the Transport Workers Union of Australia, Queensland Branch. With me I have delegates to my right, PAULA STEVENS, TONY SORANSON and BRETT MUIRHEAD.

PN142

THE COMMISSIONER: Well, you've had a bit of fun since I saw you last. I notice there's a decision of Commissioner Bacon which prefaces the orders that he issued under Section 127 of the Act, and it appears that there's a matter which I have to determine in relation to the extent of the use of casuals. Is that the question?

PN143

MR McKENZIE: Perhaps I might clarify the situation from our part, Commissioner, and also give some further background, which we would think would assist you in this particular matter. We were last before you on 22 July in conference in this Commission, the C number being the one that we're currently before you today on. We, that is QFCL, sent a letter to State Secretary - Branch Secretary of the TWU as requested in that conference outlining essentially the company position and responding to matters raised by the TWU in their correspondence which I understand may be on file but not actually marked as an exhibit. I can tender a copy for your information, Commissioner.

PN144

THE COMMISSIONER: That might assist, Mr McKenzie. Yes.

PN145

MR McKENZIE: Commissioner, in that letter we respond to a number of points raised by the TWU, including a note under the heading "Employment." The fact that there will be a number of full-time positions advertised and a number of temporary employees put into relief positions and further vacancies advertised which relate to natural attrition. That's a total of almost 50 full-time positions being advertised with nine temporary employees. Now, Commissioner, you will recall that one of the issues in discussion at the conference was the issue of casuals, and new casuals in fact coming in to the workplace to replace those casuals that have actually left, and the undertaking was given in that conference by the company that it would keep the casual pool at the existing level, which was 100. There would be no net increase in the number of casuals and that there will be 13 casual positions replaced.

PN146

In addition to that, I think you will recall, Commissioner, that there was a undertaking that a number of casual positions will be transferred to temporary positions to deal with some shortfalls which the company needed to address. That is outlined in a letter in the last dot point under the heading "Employment," as our understanding of that position was agreed in that conference. I also - - -

PN147

THE COMMISSIONER: Can I just ask you to pause there? That's not my understanding there was any agreement.

PN148

MR McKENZIE: The position was put, Commissioner - - -

PN149

THE COMMISSIONER: The position was put but - - -

PN150

MR McKENZIE: - - - that there'll be no net increase in the number of casuals.

PN151

THE COMMISSIONER: The position was put, but I don't recall there being any agreement. In fact, I think if anything the TWU delegates put the company on notice about that, that there was no agreement. That's my recollection.

PN152

MR McKENZIE: It was actually put by the delegates before the position about net casuals. What the company sought was employ additional 13 casuals. The delegates, if you recall, Commissioner, sought to have a limit on - or a percentage of the number of casuals which they would employ, and after some discussion there was actually a position put by the company that there will be no net increase in the number of casuals in the casual pool.

PN153

THE COMMISSIONER: Well, we're starting to get into issues which were dealt with in conference and I think it might be better if we go into private conference, frankly.

PN154

MR McKENZIE: There are some other points which we'd like to place on the record - - -

PN155

THE COMMISSIONER: Okay.

PN156

MR McKENZIE: - - - Commissioner, if we may. One of the points was of course that it was - the issues of the casual levels would be actually determined by the labour mix, and I think that was accepted by all the parties. What was put by the union to the company on Tuesday of last week was that unless the company gave an undertaking that there was no new faces in the building, and that period being until 5 October, that there would essentially be some disputation. The company suggested that the parties go back before this Commission as presently constituted to clarify that particular point and that was rejected by the union organiser of the delegates and the employees subsequently went on a 24 hour stoppage.

PN157

In the Commission last week it's referred to in Commissioner Bacon's decision. The company undertook not to employ any new casuals until the matter is clarified before Commissioner Hodder. In other words, this Commission as presently constituted, and that's in fact expressed in the order and it's one of the terms of the order. I might say, Commissioner, that if - I understand you may have a copy of the order on file.

PN158

THE COMMISSIONER: Yes, I do have copies of the order and of the decision.

PN159

MR McKENZIE: Yes. Point 6 in the order says that leave is reserved. The order is also based on the understanding given by QFCL in transcript during the proceedings.

PN160

Should during the life of this order the TWU believe that the undertaking is not being followed, leave is reserved to the TWU to make application to have this order varied or revoked.

PN161

Now, Commissioner, I might say that in a newsletter from the union to its members which was given to its members in a meeting last Thursday, and I'd seek to tender that, a statement was made in that newsletter which causes the company some concern and I would submit should cause the Commission some concern.

PN162

THE COMMISSIONER: Now, I see - I think I know what you're talking about.

PN163

MR McKENZIE: Yes. Underneath point 6:

PN164

Should QFCL break this agreement TWU members are able to take further industrial action.

PN165

THE COMMISSIONER: Well, I mean, at the end of the day anyone can take industrial action. It's a question of whether it's legal or not - - -

PN166

MR McKENZIE: Well, this is in the context of - - -

PN167

THE COMMISSIONER: - - - which would be contrary to the orders of Commissioner Bacon if that occurred.

PN168

MR McKENZIE: That's correct, and this is, we would submit, in the context of an order just being issued by the Commission, which in our submission misrepresented what the Commissioner said - what the effect of the order was.

PN169

THE COMMISSIONER: Yes, well, I have to agree with that.

PN170

MR McKENZIE: And, Commissioner, in our submission whilst this matter, we say, perhaps can be further discussed in conference, we would say these main points: that QFCL has complied with the disputes procedure, it has participated in three conferences in the Commission over a period of three weeks to bring this matter to a conclusion, the matter was in fact brought back before this Commission at the request of the TWU. QFCL has given an undertaking in relation to finalising the labour mix review and also employing new permanent employees as outlined in correspondence, Commissioner, so the industrial action obviously causes the company a lot of concern.

PN171

We would be seeking as part of these proceedings, Commissioner, an undertaking from the TWU that there will be no industrial action during the review period, and I've indicated to Mr Prior from the TWU last week that we've actually prepared a new Section 127 application ready to file if necessary. In other words, if we're not satisfied with undertakings that we're seeking from the TWU in relation to no further industrial action for this period. If the Commissioner pleases.

PN172

THE COMMISSIONER: Okay. Mr Prior?

PN173

MR PRIOR: Thank you, Commissioner. We certainly respond in relation to where we were last before you on the 22nd of last month, to say that, indeed, in relation to discussions about what was happening in relation to the numbers of casuals in the work-place, indeed no agreement was reached and we did put the company on notice on that aspect. The company has written to us on 29 July 2002, which is the document that they have just tendered.

PN174

THE COMMISSIONER: Yes.

PN175

MR PRIOR: There are some problems on-going in relation to the employment as per the dot points that the company have outlined, Commissioner. Perhaps it's more appropriate if we break into conference and have the delegates take you through the problems in relation to the casuals, leading up to the matters that came to a head last week. And Commissioner, in response, we would only say one thing, and this was put on transcript last week, that the two points that the company made during the hearing after the meeting which lead to their filing of a section 127 - firstly, that no further casuals would be employed whilst the matter is referred back to yourself to assist the parties, was the first point.

PN176

And secondly, that temporary employees - 12 employees that I understand were casual, were to be transferred to temporary employment. That was not communicated at the meeting round about 12.30 to 1 o'clock on that day last week. That, however, was communicated here and we did make quite a bit of mention of that on transcript, though quite frankly, if that had have been communicated, there would have been no industrial action last week. However, we're here before you today to discuss the matter further and to seek your assistance in relation to the matter with the casuals.

PN177

THE COMMISSIONER: All right. Mr McKenzie, are you - - -

PN178

MR McKENZIE: Yes.

PN179

THE COMMISSIONER: I notice you take issue with what fell from Mr Prior.

PN180

MR McKENZIE: Yes. It was responded to in the proceedings last week before Commissioner Bacon. That's not what was put by Mr Poulos from the union to the company in relation to casuals. What was put by Mr Poulos, and I said it earlier in my submissions, was that the company should give an undertaking that there will be no new faces and no new casuals in the business until 5 October. What was put by the company was that there will be no casuals until this matter comes before this Commission as currently constituted. Two certainly - two entirely different set of circumstances, Commissioner.

PN181

THE COMMISSIONER: Okay, all right. We'll adjourn into private conference.

OFF THE RECORD [10.55am]

RESUMED [12.35pm]

PN182

THE COMMISSIONER: The parties have met in private conference under the chairmanship of the Commission and have discussed a number of issues which raise - consistent with previous proceedings before this Commission, and have bearing upon the orders issued by Commissioner Bacon on 31 July 2002 found in print 920743. Now, at this point in time, the parties are considering their respective positions, and responses and documentation is to be exchanged. At an appropriate time, the parties are given leave to have this matter further re-listed, at which time the Commission will consider whether or not the section 127 orders of Commissioner Bacon are to be effected in the manner provided for within the Commissioner's decision.

PN183

At this point in time, the orders will be maintained until this Commission has an opportunity to hear further from the parties with a view to the situation which gave rise to the industrial disputation which lead to the issue of such orders having been resolved. Now, having said that, is there anything further the parties wish to place on the record? Mr Prior?

PN184

MR PRIOR: Nothing further at this point, Commissioner - only to ask that your concluding comments be released to the parties on transcript.

PN185

THE COMMISSIONER: Yes. Mr McKenzie?

PN186

MR McKENZIE: Yes. Thank you, Commissioner. Several points - firstly, we understand that a clarification will be made by the Transport Workers Union in relation to the newsletter which was distributed into the work-place last Thursday - - -

PN187

THE COMMISSIONER: Yes.

PN188

MR McKENZIE: - - - which refer to the industrial action being taken should the agreement be broken. I understand that matter will be clarified by the union. Secondly, as I pointed out in my opening submissions earlier, the company has sought an undertaking that while the labour mix review is being completed, that there will be no industrial action and it's our understanding that the TWU will respond to this in accordance with the matters which - the other points, I should say, that they have raised, and clarified by the company. The company will clarify the points raised in conference with the union in writing as soon as possible.

PN189

THE COMMISSIONER: Yes. Do you have anything to say in response, Mr Prior?

PN190

MR PRIOR: Only that our correspondence on the points raised in conference today will be to the company in time for a - - -

PN191

THE COMMISSIONER: Very well.

PN192

MR PRIOR: - - - meeting which I understand will take place on Friday.

PN193

THE COMMISSIONER: Okay. Well, as long as the parties understand the orders of Commissioner Bacon are still in place and won't be removed until this Commission is satisfied that the issues which gave rise to those matters have been resolved between the parties, or until such time as the Commission, subject to the circumstances, has to take some further action. So on that basis I shall adjourn these proceedings.

ADJOURNED INDEFINITELY [12.40pm]