C2002/4162, Transcript of Proceedings [2002] AIRCTrans 3383 (3 September 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

C2002/4162

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE,
CLERICAL AND SERVICES UNION

and

QANTAS AIRWAYS LIMITED

Notification pursuant to Section 99
of the Act of a dispute re alleged refusal
to allow members to meet and discuss workplace
matters

BRISBANE

3.48 PM, FRIDAY, 16 AUGUST 2002

PN1

THE COMMISSIONER: Could I have appearances, please?

PN2

MS J. JUSTO: I represent the Australian Municipal Administrative Clerical and Services Unions.

PN3

THE COMMISSIONER: Thank you.

PN4

MR A.J. SEE: With me is MR C. IPINOZA. We appear on behalf of Qantas Airways.

PN5

THE COMMISSIONER: Is there anybody here from Qantas, Mr See?

PN6

MR SEE: No, sir.

PN7

THE COMMISSIONER: So you're seeking leave?

PN8

MR SEE: We're seeking leave to appear on behalf of Qantas.

PN9

THE COMMISSIONER: Ms Justo, what's your attitude to leave being granted?

PN10

MS JUSTO: Commissioner, we, in the vested interests of resolving this dispute, are happy to proceed with this matter with Qantas' representatives, although we do note it's disappointing that somebody could not be here at this time. We would reserve our decision if there's any further disputation in this matter as to the representation here present today. If it pleases.

PN11

THE COMMISSIONER: You're consenting to leave, but that's limited to the extent of today's pleadings.

PN12

MS JUSTO: If it pleases, Commissioner.

PN13

THE COMMISSIONER: Very well. I'll grant you leave on that basis, Mr See.

PN14

MR SEE: Thank you, Commissioner.

PN15

THE COMMISSIONER: Ms Justo, can I ask you firstly, given there's a Section 99 notification, what is it that you believe the Commission can actually do?

PN16

MS JUSTO: Commissioner, if it pleases, I have an understanding from my members in regards to what's occurring in their workplaces today, as a result of notified protected industrial action that's occurring on Monday in the airports, that action in Brisbane is commencing at 2 am. Our members have been seeking to have what are regular scheduled meetings today of our delegates, which we have in writing, have had refused.

PN17

THE COMMISSIONER: And what were the issues that were going to be discussed today?

PN18

MS JUSTO: Normal workplace issues, Commissioner. I have the minutes that the company provided us of ongoing issues. It's a regular monthly meeting where we resolve all sorts of issues on a - - -

PN19

THE COMMISSIONER: A regular monthly meeting.

PN20

MS JUSTO: Yes, Commissioner, which we actually meet with - - -

PN21

THE COMMISSIONER: To deal with day to day issues.

PN22

MS JUSTO: Yes, Commissioner. And further we have notified - - -

PN23

THE COMMISSIONER: Just a second. So regular monthly meeting to deal with day to day issues and that was the intention of your organisation today.

PN24

MS JUSTO: Yes, Commissioner.

PN25

THE COMMISSIONER: And you say that Qantas have unilaterally cancelled that meeting contrary to the terms of the certified agreement. Isn't that - based on what I've read.

PN26

MS JUSTO: Yes, Commissioner, in two manners they have. They have done that directly in reference to our scheduled meeting today and they have also done so on a national basis. If I may, Commissioner, I believe you are in receipt of a notice from our national office authorising me to act on their behalf.

PN27

THE COMMISSIONER: Yes, I have that, thank you.

PN28

MS JUSTO: I only advise of that, Commissioner, on the basis that this same problem is occurring in several other places around the country. However, I'm happy to refer directly to our meetings today. I have copies for you if you wish, Commissioner, of the correspondence from Qantas.

PN29

THE COMMISSIONER: No, that's all right. But I still repeat my question to you: what is it that you want the Commission to do?

PN30

MS JUSTO: Commissioner, we're seeking your assistance in enabling us to have our certified agreement leave for consultation meeting right and our award right for the same meetings to occur - - -

PN31

THE COMMISSIONER: To occur when?

PN32

MS JUSTO: To occur within the 48 hours notice period that we've provided for Sunday of this week. We've as yet received no - - -

PN33

THE COMMISSIONER: So realistically - - -

PN34

MS JUSTO: Yes, Commissioner.

PN35

THE COMMISSIONER: - - - when could you meet with Qantas about - in the normal monthly meeting regime?

PN36

MS JUSTO: That monthly meeting; we've been prepared and ready to meet at any time today, Commissioner, and anywhere forward from that, and as well as today's regular monthly meeting - - -

PN37

THE COMMISSIONER: All right. But realistically, when?

PN38

MS JUSTO: Any time from now, Commissioner. Saturday, Sunday.

PN39

THE COMMISSIONER: Any time from now?

PN40

MS JUSTO: It's a seven day business. We've very happy to meet any time this week-end.

PN41

THE COMMISSIONER: Yes, but I've said realistically.

PN42

MS JUSTO: Yes, that is realistic, Commissioner. All of our delegates work across seven days. We can meet with Qantas at any time today.

PN43

THE COMMISSIONER: All right. So that's essentially what you are seeking from the Commission - - -

PN44

MS JUSTO: That's the first part, Commissioner.

PN45

THE COMMISSIONER: - - - without giving me a song and dance about everything else that's going on.

PN46

MS JUSTO: No, Commissioner. That's the first part. The second part is that we have requested meetings with the company following the guidelines as laid down in the enterprise agreement and the award to hold meetings of our members on Sunday. We've provided more than the 48 hours notice required. Qantas has provided the union a letter from a national perspective which has - which the letter states, as I've forwarded to you a copy of that letter, Commissioner - that the letter states that the company believes that any meetings held between now and 19 August will clearly relate to bans and limitations, therefore these meetings do not qualify.

PN47

THE COMMISSIONER: Is this the letter direct to Miss White, is it?

PN48

MS JUSTO: To Linda White, Commissioner. Yes.

PN49

THE COMMISSIONER: The letter of 14 August.

PN50

MS JUSTO: That's correct, Commissioner. It is our understanding, and I've handed to you, Commissioner, a copy of the agreement and the award - clauses which both clearly state the requirements for having meetings. We've met those requirements - - -

PN51

THE COMMISSIONER: Yes. No, that's fine, but it seems - - -

PN52

MS JUSTO: - - - and we're seeking your assistance to be able to have those meetings, Commissioner.

PN53

THE COMMISSIONER: It seems to me that what Qantas is endeavouring to rely upon is what's contained in the first full paragraph of the correspondence of 14 August.

PN54

MS JUSTO: Yes.

PN55

THE COMMISSIONER: Well, the second, the third and the fourth.

PN56

MS JUSTO: Yes, Commissioner.

PN57

THE COMMISSIONER: That's what it seems to say to me, that their view is that you can enact Clause 11.2 of the agreement or the award, whichever it may be, which provides for consultation meetings where no bans and limitations are imposed as a result of the meeting. Now, the position you're putting to me is that Monday's stoppage is extant of any of the matters that you want to raise with Qantas today.

PN58

MS JUSTO: Yes, Commissioner.

PN59

THE COMMISSIONER: Or you had wanted to raise with Qantas today.

PN60

MS JUSTO: Yes, Commissioner. That is correct.

PN61

THE COMMISSIONER: So can you give me the minutes or the proposed agenda for that meeting?

PN62

MS JUSTO: Yes, I can, Commissioner.

PN63

THE COMMISSIONER: Do you have a copy of that, Mr See?

PN64

MR SEE: No, I don't, sir.

PN65

THE COMMISSIONER: Qantas didn't send you very well armed, did they?

PN66

MS JUSTO: I'm sorry, Commissioner, I don't have extra copies of that.

PN67

THE COMMISSIONER: This seems to me to be the nub of this. Do you have this correspondence from Miss White?

PN68

MS JUSTO: You may refer to my copy.

PN69

MR SEE: Sir, we've had instructions given before we arrived here and we understand the nature of that communication.

PN70

THE COMMISSIONER: All right.

PN71

MS JUSTO: If I may, Commissioner, when you - - -

PN72

THE COMMISSIONER: So I've now got a copy of the issue that's being sought to be raised. The first one deals with establishment staff figures, then temporary coverage list, 24 hour part-timers, overtime allocation, long service leave, staffing levels, P and J rosters, Delta coverage, 48 hour notice, full-time versus part-time, transition from temporary to permanent. What are the issues which give rise to your industrial action on Monday?

PN73

MS JUSTO: The result of a log of claims in terms of enterprise bargaining for the purposes of enterprise bargaining agreement number 6, Commissioner, enterprise bargaining agreement 5 having expired on 31 June this year.

PN74

THE COMMISSIONER: So you have a log of claims as to proposed EB6?

PN75

MS JUSTO: Yes, Commissioner.

PN76

THE COMMISSIONER: Okay. Do you have a copy of that log of claims?

PN77

MS JUSTO: No, unfortunately I don't, Commissioner.

PN78

THE COMMISSIONER: Do you have a copy of that log of claims, Mr See?

PN79

MR SEE: No, I don't, I'm sorry, Commissioner.

PN80

MS JUSTO: I can - - -

PN81

THE COMMISSIONER: Gee, this is the blind leading the blind.

PN82

MS JUSTO: I can refer the national office to forward you a copy of that log of claims, Commissioner.

PN83

THE COMMISSIONER: Well, I need it now. I mean, if I've got to assist anybody in this, I need to know what it is that Qantas says they rely on and you say they can't rely on.

PN84

MS JUSTO: Okay. May I seek leave to obtain that log of claims for you, Commissioner?

PN85

THE COMMISSIONER: Where is it?

PN86

MS JUSTO: It will be located at the ASU office and can be faxed to you immediately.

PN87

THE COMMISSIONER: Here in Brisbane?

PN88

MS JUSTO: Yes, Commissioner.

PN89

THE COMMISSIONER: All right. Well, I'll adjourn and you - perhaps, Mr See, you might go and get some documents, too. So I'll adjourn for quarter of an hour to let the parties try and see if they can find some information for the Commission. On that basis, I'll adjourn.

SHORT ADJOURNMENT [3.56pm]

RESUMED [4.18pm]

PN90

THE COMMISSIONER: Okay. Ms Justo?

PN91

MS JUSTO: If it pleases, Commissioner. You've received a copy from our national office of the list of log of claims that was forwarded to the company.

PN92

THE COMMISSIONER: This is the one covered by correspondence from Ms White to Mr Schofield, is it?

PN93

MS JUSTO: Yes, Commissioner.

PN94

THE COMMISSIONER: I will make that ASU exhibit 1.

EXHIBIT #ASU 1 LIST OF LOG OF CLAIMS COVERED BY CORRESPONDENCE FROM MS WHITE TO MR SCHOFIELD

PN95

MS JUSTO: Commissioner, if it pleases - - -

PN96

THE COMMISSIONER: Now, just before we do that, the earlier piece of correspondence you gave me as to the proposed agenda for what was proposed as the meeting 19 July. No, that was held - I'm sorry. So this is for the meeting that was proposed for today?

PN97

MS JUSTO: Yes, Commissioner.

PN98

THE COMMISSIONER: That will become ASU exhibit 2.

EXHIBIT #ASU 2 CORRESPONDENCE OF PROPOSED AGENDA FOR MEETING ON 16 AUGUST 2002

PN99

THE COMMISSIONER: Yes?

PN100

MS JUSTO: Yes, Commissioner.

PN101

THE COMMISSIONER: Okay. Yes? Go ahead, thank you.

PN102

MS JUSTO: Commissioner, if it pleases did you wish to mark, Commissioner, the letters from Qantas to the ASU as exhibits?

PN103

THE COMMISSIONER: Well, they form part of the Bench file.

PN104

MS JUSTO: Certainly, Commissioner.

PN105

THE COMMISSIONER: They are part of the material - that's part of the Bench file, so they are before the Commission.

PN106

MS JUSTO: Certainly, Commissioner, if it pleases. We wish to contend that the award and the agreement clauses that provide the pathway for consultative meetings to occur between union and members or potential members in the workplace states very clearly in both cases that the purposes for having the meetings and the manner in which these meetings can be called is very clearly defined.

PN107

Including at least 48 hours notice. The period of the meeting being no greater than one hour. Minimum staffing levels agreed between the union delegates and the operational requirements of the business on the day.

PN108

And the last dot point, Commissioner, is that:

PN109

No bans and limitations are imposed as a result of the meeting.

PN110

Now, that is the only clearly defining clause which is in terms of the award, Commissioner, 11.2.1(d). You have a copy of that. That very clearly states, Commissioner, that no bans or limitations can be imposed as a result of these meetings. The meetings that we intended to have, Commissioner, the one scheduled today and the one we've notified for Sunday of our members, it clearly is about workplace issues and in terms of our members meeting on Sunday to discuss what has occurred today in terms of their delegate's meeting not being able to take place.

PN111

We put to the Commission very clearly that there is no intention of the ASU members to place bans and limitations as a result of these meetings. Those bans and limitations, in fact, were - that are in place for the purposes of Monday's protected industrial action were defined by the national negotiating team separate to any of our members on the ground. There was a completely separate process in terms of that and there is no anticipation of bans or limitations being placed as a result of today's meeting, which is a normal management operational requirements meeting and Sunday's meeting which, as we've complied with all of the dot points of both the award and the enterprise bargaining agreement, we believe we're entitled to have.

PN112

The correspondence on both occasions from Qantas very clearly suggests that - in paragraph 5 of the letter from Qantas of 14 August says:

PN113

We notify you that employees will not be allowed to attend workplace meetings as notified and no payment will be made in the event that employees do not attend such meetings.

PN114

We put to you, Commissioner, that that is clearly in breach of the award and the enterprise bargaining agreement so long as those dot points to that clause are met. We have no intention of doing anything other than meeting those clauses. We have many issues of an ongoing day to day operational requirement that need to be addressed and the holding of both today's meeting and the member's meetings on Sunday are a direct purpose in terms of operational requirements. We regularly have meetings on a weekend due to the level of travel, the level of passengers and the staffing arrangements because it has a less impact on the operational requirements.

PN115

Further to that, Commissioner, we wrote to Qantas today seeking leave for my ability to be present on the premises across Sunday and Monday, 18 and 19 August and we have not received a response from Qantas at this particular point in time.

PN116

THE COMMISSIONER: Do you need Qantas' approval to go on site?

PN117

MS JUSTO: No, not in general circumstances we don't, Commissioner, however on the basis of - because there is two areas basically at the airports, Commissioner. One is a public in front of the counters areas where you actually aren't able to have any sort of communication with the members because they are face to face with the passenger. There is behind the doors area which requires permission to be at.

PN118

Under normal circumstances, Commissioner - - -

PN119

THE COMMISSIONER: A security question?

PN120

MS JUSTO: - - - Qantas freely avails me of access to that area so I can speak to the members.

PN121

THE COMMISSIONER: Okay.

PN122

MS JUSTO: I was simply attempting to ensure that the appropriate access could be granted.

PN123

THE COMMISSIONER: Well, you've put Qantas on notice.

PN124

MS JUSTO: Yes, Commissioner, we have.

PN125

THE COMMISSIONER: Well, your union has put Qantas on notice about your intention to be there.

PN126

MS JUSTO: Yes, Commissioner.

PN127

THE COMMISSIONER: Okay.

PN128

MS JUSTO: And so we are - - -

PN129

THE COMMISSIONER: Now, you say Qantas hasn't responded to that?

PN130

MS JUSTO: Well, no, Qantas hasn't responded to that and due to the timing, Commissioner, that is why we raise this dispute as a matter of urgency with you because our need is to be able to attend to our members on Sunday, which is a normal working day for them.

PN131

THE COMMISSIONER: Okay.

PN132

MS JUSTO: And that is clearly what we're seeking your assistance in.

PN133

THE COMMISSIONER: Well, let me come back to my earlier question before Mr See gets up and raises jurisdiction?

PN134

MS JUSTO: Yes, Commissioner.

PN135

THE COMMISSIONER: What is it that you think the Commission can do about all this if it is a breach of the certified agreement?

PN136

MS JUSTO: All we are seeking, Commissioner, is that Qantas be instructed to abide by the enterprise bargaining agreement and award clauses.

PN137

THE COMMISSIONER: But under what power - what power can the Commission draw on to issue a direction of that order?

PN138

MS JUSTO: We would be seeking the assistance of the Commission through the raising of the section 90 dispute, Commissioner.

PN139

THE COMMISSIONER: All right, okay. Is that all you want to say?

PN140

MS JUSTO: Commissioner, if I may take one brief moment and we do appreciate your time today. Commissioner, all I would say to conclude our opening in this discussion is that our members were very disconcerted on the basis of Qantas withdrawing the right to these meetings today and not responding to the meetings on Sunday. It's very usual for Qantas to respond in a quick manner. It's a very normal process. I have our normal correspondence that we send off to Qantas for these meetings.

PN141

Our members are very concerned that they are being not allowed to participate in what is their normal lawful right and they do seek your assistance, if it pleases.

PN142

THE COMMISSIONER: Okay. Mr See?

PN143

MR SEE: Thank you, Commissioner.

PN144

THE COMMISSIONER: Mr See, what instructions do you have from Qantas about this?

PN145

MR SEE: Sir, essentially Qantas at the moment is running its tail off trying to just ensure that come Monday it can provide some level of service to the people in Brisbane who - you don't have to be Einstein to realise if you go to a domestic terminal these days they are struggling to service our business and tourist travel throughout Queensland and internationally.

PN146

THE COMMISSIONER: That's with normal staff levels.

PN147

MR SEE: That's so.

PN148

THE COMMISSIONER: I've experienced that.

PN149

MR SEE: The problem at the moment is that the managers are flat out just trying to minimise the damage that's going to obviously be occurring across the country on Monday. And the instructions that we've received are quite clear and the instructions essentially go to two issues. Firstly, in terms of this meeting which was cancelled today that so much is made of by the ASU, so much so that they include in their correspondence to the airlines that they retaliate to the cancellation of the meeting by seeking meetings of the members on Sunday at both the international and domestic terminal.

PN150

But these monthly meetings have been a longstanding practice at the airlines. Qantas did decide not to proceed with the meeting and gave the ASU the reason for that, but my friend from the ASU - - -

PN151

THE COMMISSIONER: That's a bit different, though, to what is said in the correspondence.

PN152

MR SEE: Well, it says in the correspondence that - - -

PN153

THE COMMISSIONER: Your opening comments about they are struggling obviously to service the number of customers they have now both domestically and internationally and that they are running their tails off, I assume - I'm not sure what they are going to do on Monday. They won't have any tail left on Monday.

PN154

MR SEE: And that's the primary purpose of wanting to resist or expose this stunt today for being what it is.

PN155

THE COMMISSIONER: Well, let me put this to you. Ms Bustle tells Ms White on 14 August that the reason that these meetings aren't going to proceed - no, rather that employees won't be allowed to attend workplace meetings as notified because of the fact that Qantas is of the view that the consultation meetings in some way have attracted bans and limitations or will attract bans and limitations as a result of the meetings.

PN156

MR SEE: Commissioner - - -

PN157

THE COMMISSIONER: And then they have reached a conclusion that any meetings held with staff between now and 19 August 2002 will clearly relate to bans or limitations and therefore they would be outside of the bounds of clause 11.2. I mean, that's the Qantas position as to why these meetings have been cancelled.

PN158

MR SEE: The first meeting that my friend refers to is the meeting that was cancelled today.

PN159

THE COMMISSIONER: Yes.

PN160

MR SEE: Now, as I indicated that meeting is one which is scheduled for the last couple of years. It's a regular meeting.

PN161

THE COMMISSIONER: Yes.

PN162

MR SEE: The issue really is, Commissioner, and the fact of the matter is this, that these meetings are rescheduled all the time. They take place - - -

PN163

THE COMMISSIONER: What, at the behest of both sides?

PN164

MR SEE: At the behest of both sides. If there is a union organiser who can't attend they contact the organisation and they say, "We can't make it today. Can we make it another day". If the HR Manager for Qantas in Brisbane isn't available the same deal applies. If there's not a union - - -

PN165

THE COMMISSIONER: Okay. So these meetings are rescheduled at the behest of either side.

PN166

MR SEE: And have been since their inception.

PN167

THE COMMISSIONER: Well, I'd say that there is nothing in concrete that says there has to be a meeting today of the order that's complained of here.

PN168

MR SEE: Not at all, sir.

PN169

THE COMMISSIONER: And even though it might have been ostensibly programmed for today it's one that's capable of being rescheduled by either side subject to their circumstances.

PN170

MR SEE: And Qantas is more than happy once it gets Monday out of the road of rescheduling the meeting.

PN171

THE COMMISSIONER: So it's a time constraint for Qantas staff; is it?

PN172

MR SEE: It's a time constraint, sir.

PN173

THE COMMISSIONER: That applies to today's meeting and the meeting for Sunday? Was it Sunday, Ms Justo, that you were trying to hold another meeting?

PN174

MS JUSTO: Yes, Commissioner, it is, Sunday afternoon.

PN175

THE COMMISSIONER: Which meeting would that be, today's meeting?

PN176

MS JUSTO: No, they're meetings of members, Commissioner at the domestic airport and at the international airport as notified in our letter to Qantas.

PN177

THE COMMISSIONER: Two as different meetings. One is the scheduled meeting - - -

PN178

MS JUSTO: Yes, Commissioner.

PN179

THE COMMISSIONER: - - - which on the basis of Mr See's submission is one that's capable of being rescheduled at the behest of either side. At times has it been rescheduled because you haven't been able to make it?

PN180

MS JUSTO: No, Commissioner, it has not. In general, I may state that I would have to check my diary to confirm that absolutely, but I can assure you in the majority that if I'm unable to attend our delegates proceed with the meeting.

PN181

THE COMMISSIONER: All right. But to your knowledge, is what Mr See says accurate in terms of these meetings having been rescheduled at times?

PN182

MS JUSTO: They are rescheduled from time-to-time, Commissioner, yes.

PN183

THE COMMISSIONER: Okay. So it's not set in concrete?

PN184

MS JUSTO: No, Commissioner. It is actually is set six months in advance the dates for these meetings, so to a certain degree, yes, they are set in concrete and they are agreed to six months in advance.

PN185

THE COMMISSIONER: That's pretty loose concrete.

PN186

MS JUSTO: It is fairly loose concrete, Commissioner, but I contend it's the reasons in Qantas' letter for why they have cancelled the meeting that is at issue, not necessarily the cancellation of the meeting.

PN187

THE COMMISSIONER: Well, that's what I'm trying to flesh out now.

PN188

MS JUSTO: Thank you, Commissioner.

PN189

THE COMMISSIONER: Yes, thank you, Mr See.

PN190

MR SEE: Mr Commissioner, the second issue then relates to their conducting of the meetings that are scheduled then for the domestic and international terminal for Sunday in response to the cancellation for those meetings. Now, again, Qantas is quite happy to have the union exercise its rights under - its entry powers under the provisions of section 285C of the legislation.

PN191

THE COMMISSIONER: So there's no estoppel on Ms Justo going to the airport on Sunday?

PN192

MR SEE: Not at all, sir.

PN193

THE COMMISSIONER: For the purpose of holding a meeting which he may or may not be able to attract enough of her members to hold one, given they won't be paid for any of the time involved.

PN194

MR SEE: That's right, sir. The issue simply is that Qantas does not want to see further disruption and so asks that the union recognise the situation, precarious situation it's placed in, and ask that it rely on its usual entry and inspection rights under the law in order to consult with the employers, if that's the issue that they're willing to consult about, the fact that there wasn't a meeting today.

PN195

THE COMMISSIONER: But Qantas isn't going to allow a meeting to proceed on Sunday in place of the one that wasn't held - it's a different style of meeting, isn't it, Sunday?

PN196

MR SEE: Different style, sir, yes.

PN197

THE COMMISSIONER: And, Ms Justo, what's the purpose of the meeting on Sunday?

PN198

MS JUSTO: The purpose of the meeting on Sunday, Commissioner, is to consult with our members in regards to the workplace issues. We normally have meetings of members after we have our monthly delegate meetings but we notified this meeting on the basis today that the members were overwhelmingly alarmed at the cancellation and the wording used by Qantas of what is considered our normal monthly meeting today, and therefore requested that we have meetings of members to discuss this issue.

PN199

THE COMMISSIONER: Well, you certainly won't be discussing anything that came out of today's meeting then, will you?

PN200

MS JUSTO: No, Commissioner, we won't be able to. Very clearly the members have requested that due to the cancellation - because there are some serious ongoing matters there that they wish to have addressed.

PN201

THE COMMISSIONER: So what, this is a normal function, is it? Following one of these consultation meetings you have a report back style meeting to your members. In which manner is that conducted?

PN202

MS JUSTO: How do you mean, Commissioner? In terms of how physically does the meeting occur?

PN203

THE COMMISSIONER: Yes.

PN204

MS JUSTO: Commissioner, we notify the organisation. Sometimes at the delegates meeting we say we'll have - we actually determine amongst ourselves then which is the appropriate time in terms of the business arrangements, when to have our next lot of members meetings, based on rostering, delegates availability etcetera, because the delegates do all the liaising with management in terms of least impact on the business and then we physically hold meetings in the lunch room at the domestic terminal and the - - -

PN205

THE COMMISSIONER: But isn't that by agreement, that meeting?

PN206

MS JUSTO: The numbers of people who attend at that meeting is by agreement, Commissioner, but in terms of notification of the meeting and having paid meetings, no, Commissioner. It's my understanding that as long as we abide by those clauses determining our ability to have consultative committee meetings under the enterprise agreement and the award, that they can proceed.

PN207

THE COMMISSIONER: Well, this wouldn't be a consultative committee meeting on Sunday, would it?

PN208

MS JUSTO: Sorry, no, Commissioner, the award and the EBA refers to them as consultative meetings.

PN209

THE COMMISSIONER: I see. So you're saying you need to have a meeting on Sunday to tell your members why Qantas wouldn't let you have a meeting today?

PN210

MS JUSTO: That's part of the reason, Commissioner, and they order for Sunday because Saturday is a particularly busy day and those times nominated by the delegates are going to be least impacting on the company. We get reasonably small response to those meetings but we have a communications structure which people then have discussions about the incidents.

PN211

THE COMMISSIONER: Well, what are you going to tell them on Sunday if you do have a meeting?

PN212

MS JUSTO: Well, we're going to have a discussion about the issues that were to be raised and what members' intention is as to how those matters are going to proceed in terms of who is going to be responsible for what issues. There's a lot of research goes into some of these things, and specialised - - -

PN213

THE COMMISSIONER: But that would have all been done, wouldn't it?

PN214

MS JUSTO: To a certain degree it would have, Commissioner, but it had to come to the table to have it resolved. Our members are all very clearly involved in the processes that are engaged in running the operation at both airports.

PN215

THE COMMISSIONER: But haven't you really only got - in real terms, all you've got is the delay in having the initial meeting which would lead to the need for the consultative meeting to discuss the issues raised in ASU exhibit 2.

PN216

MS JUSTO: Commissioner, I need to put to you fairly clearly that Qantas has put in their correspondence to us very clearly and succinctly that the reasons they have cancelled these meetings have nothing to do with operational needs or a need to delay because the manager is not available. They very clearly state in both correspondence of 14 and 15 August that the reasons that they wish to - well, in terms of the letter of 14 August, that employees will not be allowed to attend workplace meetings. They say it very clearly in direct relation to there being protected industrial action on Monday; and the same applies to the letter of the 15th, that given the pending industrial action they feel its inappropriate to continue with this meeting - nothing to do with what is normally required for us to cancel or reschedule.

PN217

THE COMMISSIONER: I hear what you're saying.

PN218

MS JUSTO: Thank you, Commissioner.

PN219

THE COMMISSIONER: Mr See, that's not an unreasonable interpretation of what Qantas is saying. I mean, we're really back to why the meeting on Sunday can't proceed because it's a follow-on to the meeting that didn't occur today. I know that sounds a bit strange but this is the meeting about the meeting that didn't happen. It's about the Claytons meeting.

PN220

MR SEE: Commissioner, we would submit that you don't need to stop the only viable airline operating in Brisbane to have that meeting. If the issues contained in this exhibit - - -

PN221

THE COMMISSIONER: That's ASU2.

PN222

MR SEE: ASU2, genuinely and fairly need to be put to the members of the ASU at Qantas, one would be very, very shocked to know that they couldn't be done in a manner in accordance with section 285C of the Workplace Relations Act.

PN223

THE COMMISSIONER: Now, just explain to me what that manner would mean?

PN224

MR SEE: That would be to have the discussions with employees, discussions to be held during their breaks. It's just so as the organiser for the ASU is quite free to conduct meetings with the members, the organisation simply asks that any notion that rights are being violated by the ASU on the eve of a national stoppage are just ludicrous and we submit that there's no breach of any agreement or award clause as it applies to consultation rights; that the spirit of those rights has been enshrined in employer participation clauses for the last 30 years, industrial relations certainly wouldn't envisage sabotage tactics which are only now at the last moment designed to frustrate the operations of the airlines.

PN225

THE COMMISSIONER: Wait on. On 14 August Qantas had made its mind up that the meeting wasn't going to proceed today or Sunday and the reasoning behind that decision was that they were of the view that what the ASU proposed was in conflict with clause 11.2, given that it provides leave for consultation meetings where no bans and limitations are imposed as a result of the meeting. Tell me, what bans and/or limitations are imposed as a result of the meeting that will occur on Sunday.

PN226

MR SEE: Well, I don't think, sir, that the intention of the provision is to predict those, that it goes to the intent of the imposition of the ban or limitation. Now, we know already - - -

PN227

THE COMMISSIONER: Which ban or limitation are you talking?

PN228

MR SEE: Well, we've been notified, sir, and - - -

PN229

THE COMMISSIONER: This is the protected action on Monday?

PN230

MR SEE: Protected action on Monday.

PN231

THE COMMISSIONER: Now, that's to do with enterprise bargaining. Now, the last time I looked there was a difference between enterprise bargaining and the normal discourse which goes on between employer and employee about issues other than enterprise bargaining, unless something has changed. Just show me how that has changed.

PN232

MR SEE: The ASU have been put on notice that the company does not intend recognising stoppages or meetings that take place supposedly under the guise of either of those clauses, whilst those bans and limitations are scheduled for Monday.

PN233

THE COMMISSIONER: Well, how do they come to that conclusion? Supposedly under the guise. Now, just tell me, what's the hard evidence that supports that? Supposedly under the guise.

PN234

MR SEE: Commissioner, for the last two years, Qantas Airlines have been having monthly meetings with the delegates. Now, on 15th or 16th of - 16 August - - -

PN235

THE COMMISSIONER: That's today.

PN236

MR SEE: - - - in a letter that's sent by the Branch Secretary to the Acting Airport Manager, the union advises airlines that in response to a cancellation of a regular meeting that they now request a meeting of their members at 2 o'clock at the International Terminal and 4.30 at the Domestic Terminal. And this is on the eve of a stoppage that's going to take place across Australia. Now, we say to you, Commissioner, it's a sham, that the only purpose of that meeting, which is a routine meeting normally that would have been cancelled today, the only purpose then of a meeting in response to that is to do a couple of things, basically to advance and marshal up the troops ready for Monday.

PN237

THE COMMISSIONER: Well, you know, as an innocent bystander, I'd say you're both playing games. I mean, I know what's going on here and so do you. This is just the tactics. You both applying to one another in relation to the whole of these issues. I mean, Qantas, on 14 August, decides there won't be any meeting and it will be because of bans and limitations which - the only bans and limitations which it seems to me you could logically point to on 14 August are those associated with Monday's stoppage.

PN238

MR SEE: That's right.

PN239

THE COMMISSIONER: Now - so Qantas then makes a little bit of a quantum leap and says, well, those bans on Monday are ones that we say catch every other meeting or every other potential issue between us and the ASU. Is that what they're saying?

PN240

MR SEE: They're simply saying that, in terms of any benefit that should be enjoyed whilst there are bans and limitations in place, stoppages in place, that the - - -

PN241

THE COMMISSIONER: But I might say, Mr See, industrial action, protected industrial action under the enterprise bargaining regime under the Workplace Relations Act, is legal. I mean, once upon a time, if you had bans and so forth in place, it was pretty hard to get anybody, including the Commissioner, to do too much until the bans were removed. But nowadays, of course, all sorts of things happen whilst you've got industrial action surrounding protected action.

PN242

MR SEE: Sir, the issue is that the union asserts there's been a breach or a proposed breach of an award clause.

PN243

THE COMMISSIONER: Yes.

PN244

MR SEE: And of the certified agreement. Now, we simply say that those clauses don't envisage stoppages that are proposed for Sunday afternoon. Meetings that are proposed for Sunday afternoon are not intended to be catered for in the current enterprise agreement.

PN245

THE COMMISSIONER: Well, let's have a look at clause F(iv), leave for consultation meetings. It says:

PN246

No bans and limitations are imposed as a result of the meeting.

PN247

Now, this is all anticipatory, isn't it? What - I mean - or are you saying that the bans and limitations that Qantas can call to account are those related to Monday's industrial action, and apply that to this particular aspect of this - is this - this is part of the agreement. Yes. The EBA. EBA5. Is that what you say?

PN248

MR SEE: That's what we're saying, sir.

PN249

THE COMMISSIONER: It's a little bit of cart before the horse, isn't it? "No bans and limitations are imposed as a result of the meeting." Which meeting are we talking about?

PN250

MR SEE: We're talking about the meeting which is being sought for Sunday.

PN251

THE COMMISSIONER: All right. Now - well, how - and that's a report back meeting. Miss Justo says she needs to talk to her members about the meeting that didn't happen today.

PN252

MR SEE: And we know that's a sham, sir.

PN253

THE COMMISSIONER: Yes.

PN254

MS JUSTO: If it pleases the Commission, can I direct my friend here to the first clause in - the first paragraph in both the enterprise bargaining agreement and the award, Commissioner, which clearly states - in terms of the award it's 11.2.1, and in terms of the EBA it is F and the first paragraph:

PN255

The company must allow employees to attend workplace meetings including involving the union to discuss industrial matters without loss of pay and provided the following conditions are observed.

PN256

Commissioner, in terms of 11.2.1D:

PN257

No bans and limitations are imposed as a result of the meeting.

PN258

We have given you a very clear undertaking that we have no intention of placing bans or limitations as a result of our members' meetings on Sunday. The clause very clearly states that the company must allow employees to attend these meetings at no loss of ordinary pay. We understand that we can engage in entering the workplace, as we have done freely and very appreciatively with Qantas's assistance, to discuss issues with our members in the workplace in their lunch hour, etcetera. However, both the award and the enterprise bargaining agreement clearly state that the company must allow these meetings to occur, provided that the four following points are met. Those four following points have been met in terms of the Sunday meetings.

PN259

THE COMMISSIONER: I hear what you're saying.

PN260

MS JUSTO: Commissioner, further we also noted to you in our dispute notification that we understand that the company has, indeed, be holding meetings of groups of employees today, providing them information in regards to the industrial action on Monday and their stated position in terms of asking people will they or won't they attend.

PN261

THE COMMISSIONER: Is that contrary to something, is it?

PN262

MS JUSTO: I don't believe it's contrary, Commissioner, but in terms of discriminating against our capacity to be able to meet with our members of the company and using the industrial action on Monday, the protected industrial action as the reason, the company is able to engage with meeting its employees, which we in no way wish to, under normal circumstances, say they can't do that. Of course they're entitled to do that.

PN263

THE COMMISSIONER: But you can't say they can't do it.

PN264

MS JUSTO: But they are meeting with people - - -

PN265

THE COMMISSIONER: But you can't say they can't do it under any circumstances.

PN266

MS JUSTO: No, Commissioner, I can't say that, but what I can suggest to you, Commissioner, is that the purpose of these meetings today is particularly in regards to the industrial action on Monday. We are stating to you very clearly that, according to the agreement, our provision allows us to have meetings for the purposes as stated, as long as we follow those conditions. We see it to be reasonably discriminatory, Commissioner, that the company can, in fact, hold these meetings today and suggest, because of the industrial action, that we can't hold our regular lawful authorised meetings. If it pleases.

PN267

THE COMMISSIONER: All right. Mr See.

PN268

MR SEE: Sir, I think we can go backwards and forwards until the cows come home but the - - -

PN269

THE COMMISSIONER: I know we can, but I asked you a simple question and I think you answered it. So I need to have this clear in my mind. Qantas's position is that the bans and limitations which will apply on Monday are ones capable of being extended to clause 11.2.1D, or clause 11.2 of the - is that from the award, is it, Miss Justo?

PN270

MS JUSTO: Commissioner, you have two pages. The page headed Part 3 Communication, Consultation and Dispute Resolution is from the award, Commissioner, and the enterprises agreement - - -

PN271

THE COMMISSIONER: Okay. And then the clause F Leave for Consultation Meetings which resides within Qantas ASU EB5A part A, clause F, is from the certified agreement. So Mr See says that Qantas is entitled to take the view that the disputation on Monday has application to 11.2.1D and F(iv). That's their position. That's your position, Mr See, is it?

PN272

MR SEE: That's right, sir. We'd rely, though - I mean, primarily we're relying on the fact that we're speaking of the enterprise agreement clause, and the Commission did turn to the issue initially, but we don't see the matter that's located in this dispute application as one that sits neatly within the jurisdiction of an allowable award.

PN273

THE COMMISSIONER: Yes, I was waiting for you to raise the Commission's jurisdiction, Mr See. And you're right; we could talk about this all afternoon. And that's the reason, Ms Justo, I did ask you earlier what it was you thought the Commission could do. What essentially - and correct me if I'm wrong. What you want the Commission to do is direct Qantas to allow the meeting to proceed on Sunday the 18th, a meeting of the nature that you've earlier described to me. I'm to direct Qantas that that's to go ahead under the terms of either the award or the certified agreement. Is that your position?

PN274

MS JUSTO: Yes, Commissioner.

PN275

THE COMMISSIONER: All right. Now, just tell me where I'd get the power to enforce the award or the agreement.

PN276

MS JUSTO: I would seek leave to have your advice on that matter, Commissioner.

PN277

THE COMMISSIONER: Well, not my advice. You're the one that's - I'm asking you the question. The Commission has no enforcement powers.

PN278

MS JUSTO: Well, then, Commissioner, I would - - -

PN279

THE COMMISSIONER: I mean, if your position is that Qantas is in breach of the award, the place for you to go is very quickly this afternoon to the Federal Court, not here, if you want it enforced. It's not a dispute. It's clearly, you say, a breach of the award or the enterprise agreement.

PN280

MS JUSTO: We would seek in the first instance, Commissioner, that Qantas' activities, as provocative as they are, and I'm not going to respond to the comments of my friend in terms of Qantas being the only viable airline flying out of Brisbane. Currently I think Virgin would have a bit to say about that. But I would - - -

PN281

THE COMMISSIONER: Well, I don't think Virgin is capable of handling the passengers that Qantas does. Let's get realistic.

PN282

MS JUSTO: No, that's exactly right, Commissioner, but I'm not going to engage in a discussion so that we do not hold the Commission any longer where required. However, I would seek to take you, Commissioner, to Section 101 of the Act in terms of findings as to industrial disputes. We would seek - - -

PN283

THE COMMISSIONER: But this isn't an industrial dispute.

PN284

MS JUSTO: We seek, Commissioner, in the first instance, a resolution through the disputes procedure which we believed would be able to be found in this forum this afternoon in simple terms - - -

PN285

THE COMMISSIONER: Well, you should have come here under Section 170LW, not Section 99. One of these days you people are going to learn about notifications to the Commission under 99 as opposed to 170LW.

PN286

MS JUSTO: If I may, Commissioner, beg some of your time as I am under instruction from national office to seek leave as to determine their instruction to me as to where to proceed from this moment.

PN287

THE COMMISSIONER: Okay. All right. I'll adjourn. How long do you want?

PN288

MS JUSTO: Five minutes, Commissioner.

PN289

THE COMMISSIONER: Okay. I'll adjourn for five minutes - - -

PN290

MS JUSTO: Thank you.

PN291

THE COMMISSIONER: - - - for you to get instructions as to the ASU's position.

SHORT ADJOURNMENT [4.54pm]

RESUMED [5.05pm]

PN292

THE COMMISSIONER: Ms Justo.

PN293

MS JUSTO: Thank you, Commissioner. If it pleases, I appreciate the opportunity to seek advice from our national office, who have requested that in terms of the jurisdictional matter, Commissioner, that we seek leave to make application on record for the Commission to settle this dispute as a Section 170LW, and as such, Commissioner, we advise that Qantas has no discretion in regards to the holding of these meetings. The award and the enterprise agreement show very clearly that the company must permit those meetings to take place.

PN294

THE COMMISSIONER: So let's deal with your application firstly.

PN295

MS JUSTO: Yes, Commissioner.

PN296

THE COMMISSIONER: You now say that you want to file a Section 170LW application?

PN297

MS JUSTO: Yes, Commissioner, if it pleases.

PN298

THE COMMISSIONER: By doing what with this notification?

PN299

MS JUSTO: By withdrawing the present notification, Commissioner; the Section 90 notification - - -

PN300

THE COMMISSIONER: Well, then, there's nothing before the Commission if you do that.

PN301

MS JUSTO: - - - that replaces that, if I can on record make that application, Commissioner.

PN302

THE COMMISSIONER: All right. Mr See?

PN303

MR SEE: Sir, we'd object to the late shift in strategy by the applicant. We've indicated to the Commission today that we're quite happy to have the ASU meet with its members. The meeting that was scheduled today which seems to be the source of the problem, Qantas are quite happy to reschedule that meeting.

PN304

THE COMMISSIONER: Till when?

PN305

MR SEE: Well, obviously some time after the existing turmoil, but my instructions were any time in the first week of September would be fine. That's the usual practice that these meetings, as I've indicated, have been reschedule previously. Our submissions are that there are no special circumstances or reasons which would justify an application of this type being made at 5 past 5 on a Friday afternoon where the parties are just given no notice. When one looks at ASU exhibit 2 and considers the scope that potentially the issue would have addressed, it would seem that the fairer course would be if the applicant fulfilled its usual requirements by making any application that it seeks to the Commission by the usual means. And if there's really meat on the bones, then the employer is more than happy to address that application and respond to it in kind.

PN306

THE COMMISSIONER: All right. Now, Ms Justo, in any event, even if, for argument's sake, Mr See stood up and said, "Yes, we have no objection to the conversion of the current notification before the Commission being converted to a Section 170LW notification," that's not going to take me any further in terms of the issues between the parties. The jurisdictional barrier is still there. Whilst the Commission is able to - I don't know what the disputes avoidance procedure is, in any event - - -

PN307

MS JUSTO: I can provide you with that, Commissioner.

PN308

THE COMMISSIONER: - - - to the extent of the Commission's powers, but in any event all of that does empower the Commission to settle disputes between the parties arising within the terms of the certified agreement. Now, all we've got here is clearly Qantas and you have a different interpretation of the intent and meaning of either the award or the certified agreement as to the leave for consultation meetings. For the Commission to resolve that the Commission would have to interpret the agreement and then issue orders to enforce the interpretation, both of which are beyond the powers of this Commission.

PN309

MS JUSTO: Commissioner, we understand that at this point in time we appreciate your advice in that matter, that this is an extraordinary - - -

PN310

THE COMMISSIONER: Well, it's not advice. It's just my view as to the powers the Commission has.

PN311

MS JUSTO: It is indeed your view, Commissioner. It is our view that under section 170LW that in order to settle a dispute the disputes procedure needs to be followed and undertaking that Qantas were the first to provide us with the documentation alerting us to the fact that they were not going to comply with the agreement, we've responded and had no notification back from the company in terms of being able to fulfil that procedure and in earnest of the time factor that is compacting this matter, Commissioner, we understand that there is a number of difficulties in terms of interpretation.

PN312

However, in reading the clauses in both the award and the enterprise agreement, they make very clear statements in regards to the holding of meetings and the requirements that allow the holding of those meetings and neither of those clauses provide for crystal ball gazing into the future and determination of what cannot and can be held. We are seeking, Commissioner, that through the section 170 and the disputes procedure over the application of the agreement that the agreement very clearly states that the company must allow these meetings to proceed without loss of ordinary earnings to the employee provided that those four parts to that clause are met.

PN313

Those are requirements that need to be met prior to the holding of those meetings. We have met those four conditions, Commissioner, and there is no further interpretation to be had in terms of the application of that clause or of this agreement in terms of us holding what would be not unusual in any other circumstance, outside of the fact that there is protected industrial action on Monday which is protected, and we aren't in a position and we have given that undertaking to this Commission that there will be no bans and limitations brought forward as a result of the meeting.

PN314

That is the only requirement of application for this clause in the agreement, and on that basis, Commissioner, we seek leave for you to instruct that Qantas proceed to abide by the clause as it is read and written and that their actions are extremely provocative in light of what is occurring on Monday. We are simply seeking leave to entertain what is our just and proper right under a very straightforward clause in the enterprise agreement. If it pleases, Commissioner.

PN315

MR SEE: Sir, we would respond by simply asking that the Commission order that the applicant union recognise the importance of the principal objects of the Workplace Relations Act in terms of section 3, having regard to the fact that they are encouraging the pursuit of high employment, improved living standards, low inflation, and international competitiveness through higher productivity and flexible and fair labour market. We would ask that the Commission recommend to the applicant union to withdraw the pressing of its present application at this stage in order that the events of - - -

PN316

THE COMMISSIONER: Which one is that? The 99 or the flagged 170LW?

PN317

MR SEE: Well, sir, at the present time, we are only speaking of the section 99.

PN318

THE COMMISSIONER: Yes.

PN319

MR SEE: Until such time as the events of this coming Monday, 19 August 2002, are disposed of. At that stage, Qantas Airways undertakes to ensure that it will meet with the union delegates in accordance with the usual custom and practice of conducting its monthly meeting for Brisbane Airport, and it will go about addressing those issues as flagged in the exhibit that has been tendered by Ms Justo, ASU 2, in relation to the status in responding to the issues from the previous meeting of 19 July 2002. That is the undertaking that Qantas gives to the Commission in relation to the application today, and for all the other arguments that we've already put to the Commission, including this question of jurisdiction, we would ask that the Commission recommend that the ASU cease the pressing of these issues for the time being. If it please the Commission.

PN320

THE COMMISSIONER: Well, realistically, this Commission doesn't believe it has any jurisdiction, either under a section 99 or section 170LW notification to resolve the issues in the manner the ASU seeks. I don't believe - and maybe somebody could disabuse me of that view by way of an appeal, but I would be happy for a Full Bench to tell me just where the Commission get the power to interpret and enforce by way of order on either party, given the nature of the issues that are before me. I am well aware of the tactics that both parties are involved in. This Commission is not going to be used as some sort of punching bag, or as a policeman on the beat. If you think they have breached the award, or the agreement, you take them to the Federal Court. I am not going to order Qantas to do anything other than what Mr See has said. I am certainly not going to order the ASU to take note of section 3 of the Act, Mr See. They are big boys and girls now. They can please themselves about that. But realistically, I don't believe the Commission has got any authority.

PN321

Your offer that following Monday's meeting that - I don't think the first week in September is appropriate. I think if Qantas's concern is about Monday, and about bans and limitations on Monday, which they say, in some way - that is not totally clear to me - has some implications in terms of the provisions provided for consultation meetings under the certified agreement, that is up to them, but, essentially, I think you should be meeting with the ASU delegates - if Qantas is genuine about this - you should be meeting with them as soon after Monday as is humanly possible. Not the first week in September.

PN322

MR SEE: Yes, Commissioner.

PN323

THE COMMISSIONER: And Ms Justo, you want to go out to the airport on Sunday, you can do so under the terms of the Act, but obviously if you involve and engage your members in meetings of the nature that you say you want the meeting for, it won't be with the approval of this Commission, and that is a gauntlet that you will have to run, if you want to do that.

PN324

MS JUSTO: Yes, Commissioner.

PN325

THE COMMISSIONER: But, essentially, I don't believe, frankly, that the Commission is able to separate the parties today on the basis of what is before me now. If you want to file the section 170LW on Monday or whenever, and have the Commission endeavour to deal with it under the dispute avoidance procedure, that is fine, but to try and convert your section 99 to a section 170LW now still doesn't convince me that I've got any authority or power to determine the matter in the way that you want. As I said, maybe somebody can show me that I'm wrong, but they will have to do that before I'm willing to do that. So, at this point in time, I simply intend to adjourn these matters, and subject to any further application by either party, the Commission will consider those applications on their merit.

PN326

MS JUSTO: If I may, Commissioner, seek leave to have a clearer understanding of your interpretation of our having meetings not being within the wishes of the Commission on Sunday?

PN327

THE COMMISSIONER: Well, if you hold meetings contrary - you say you are going to try and hold meetings consistent with the terms of the certified agreement. Qantas says that you can't do that. If you do that, and Qantas takes some action against you, well, that will be on your head. That is what I'm trying to imply to you.

PN328

MS JUSTO: Certainly, Commissioner, that is fine. The only way we can hold those meetings is actually in consultation with the company. So that is fine, Commissioner. That is not going to take place.

PN329

THE COMMISSIONER: Okay.

PN330

MS JUSTO: But I seek your leave, then, Commissioner, that I have full access as normal in terms of the notification under the Act to seek leave to approach my members and potential members in the workplace during working time, during their lunch breaks - - -

PN331

THE COMMISSIONER: Well, as long as you do that consistent - - -

PN332

MS JUSTO: - - - etcetera.

PN333

THE COMMISSIONER: - - - with the Act, there is nothing Qantas can do about that. I mean, your access hasn't been denied. In fact, I think Mr See said earlier that Qantas has no objection to you visiting the workplace on Sunday, and acting consistent with your right of - of requirements and obligations under that section of the Act, but that wouldn't entail you holding meetings of your members. I assume you could hold meetings with those members that you could gather in the lunch room during their lunch break, which is a normal - which is normally available to you.

PN334

MS JUSTO: If it pleases, yes, Commissioner, they don't normally have lunch breaks as such, Commissioner, but that is fine. We will work through that process. I was simply flagging, I suppose, as my learned friends were, in terms of crystal ball gazing, that, as security guards have been placed around the country, and several areas already refusing access to organisers, that I'm simply ensuring that that is not going to occur in Brisbane - in all Qantas sites, Commissioner.

PN335

THE COMMISSIONER: Mr See, what is the position on Sunday for Ms Justo?

PN336

MS JUSTO: And Monday, as I have notified, Commissioner.

PN337

THE COMMISSIONER: Well, there won't be much going on there Monday, will there?

PN338

MS JUSTO: No, but we will be - sorry, Commissioner, I have notified the company of my intention to be on the premises both on Sunday and Monday.

PN339

THE COMMISSIONER: Okay. Mr See?

PN340

MR SEE: Sir, the rights of entry to organisations, as set out in section 285(c), in terms of the power to enter premises to hold discussions, there's a couple of qualifiers, I suppose, in that construction. At 285(c)(i), those powers are:

PN341

For the purposes of holding discussions with any of those employees who wish to participate in those discussions

PN342

and then at subsection (ii):

PN343

The person may only enter the premises during working hours, and may only hold discussions during the employees meal time or other breaks.

PN344

THE COMMISSIONER: Yes.

PN345

MR SEE: Now Qantas is more than happy and it is a recognised right and it has offered this all along, and it is - - -

PN346

THE COMMISSIONER: Well, that is different to Ms Justo or any other ASU official attending for the purpose of attending consultative meetings, isn't it?

PN347

MR SEE: That is right.

PN348

THE COMMISSIONER: Because there is an hour provided there. Now is that paid time that hour, is it?

PN349

MR SEE: The consultation meetings with - - -

PN350

THE COMMISSIONER: Yes, for the duration of an hour.

PN351

MR SEE: In circumstances where no bans and limitations would otherwise exist, that is right.

PN352

THE COMMISSIONER: But under the circumstances, Qantas's position is that that is not the case, but, however, Ms Justo is entitled under section 285(c) to enter the premises on Sunday and Monday if she wants to for the purpose of holding discussions with employees - that is employees who are members or eligible to become members of the ASU, and she can hold discussions with any of those employees who wish to participate in those discussions, but she is confined to only entering the premises during working hours. What are working hours at the airport, 18 hours a day?

PN353

MS JUSTO: If I may, Commissioner, from 3.30am - at the domestic airport from 3.30am until 2.00am the following morning, and at the international airport, from 2.00am to 2.00am, Commissioner.

PN354

THE COMMISSIONER: Okay, so we have almost got a round the clock operation?

PN355

MS JUSTO: Yes, Commissioner.

PN356

THE COMMISSIONER: But obviously you can only hold discussions during employee's mealtimes and other breaks?

PN357

MS JUSTO: That is correct, Commissioner. If I may, the lunchroom where I am able to hold those discussions with members is actually behind - a person requires authority to move behind those areas where those lunch breaks are, and that is why I have notified, so that the intention is clear that - - -

PN358

THE COMMISSIONER: So there is no estoppel by Qantas on Ms Justo doing that on Sunday and Monday, Mr See, is there?

PN359

MR SEE: My instructions are, sir, that Qantas have made available certain meeting rooms in order that Ms Justo may pursue her rights under section 285(c).

PN360

THE COMMISSIONER: Has she been made aware of where they are?

PN361

MS JUSTO: No, Commissioner, that is the first I've heard of that matter.

PN362

THE COMMISSIONER: When is she going to be told about that?

PN363

MR SEE: I'm happy to do that - - -

PN364

THE COMMISSIONER: Now?

PN365

MR SEE: - - - this afternoon, Commissioner.

PN366

THE COMMISSIONER: Okay. When we adjourn with these proceedings?

PN367

MR SEE: That is right.

PN368

THE COMMISSIONER: Okay. Will that satisfy you then, Ms Justo?

PN369

MS JUSTO: That will, Commissioner, and I assume that is the Qantas position in general seeing as access has already been denied today, before the weekend commences for organisers in other Qantas sites around the country.

PN370

MR SEE: I have no instructions in relation to any other activity other than Brisbane airport, sir.

PN371

THE COMMISSIONER: Well, Mr See, you are standing up here; your words to me are Qantas's words, and I will hold Qantas to those words.

PN372

MR SEE: Sir, the dispute notification relates to Brisbane airport, and my instructions are confined to Brisbane airport.

PN373

THE COMMISSIONER: That is fine.

PN374

MS JUSTO: If I may, Commissioner, the only other thing that I would request, if it is possible, and I don't wish to take up any more of the Commissioner's time than is absolutely necessary in this matter, but I think it is fairly important considering the provocative nature of events prior to Monday taking place that we actually determine on record where those rooms are that I am able to access the members because there are rooms, Commissioner, that are not on - - -

PN375

THE COMMISSIONER: Are you in a position to do that now, Mr See, on the record?

PN376

MR SEE: Sir, I would need about a 5 minute adjournment in order to confirm.

PN377

THE COMMISSIONER: Okay, I will adjourn for 5 minutes for you to be able to comply with that. On that basis, I will adjourn.

SHORT ADJOURNMENT [5.25pm]

RESUMED [5.40pm]

PN378

THE COMMISSIONER: Yes, thank you, Mr See.

PN379

MR SEE: Sir, we've been able to identify the rooms which would be available to Ms Justo to perform her discussions with employees in accordance with section 285(c) of the Act. At the domestic terminal, those facilities would be the Landside Conference Room, which is on the ground floor of the - - -

PN380

THE COMMISSIONER: Landside, is it?

PN381

MR SEE: Landside Conference Room, which is on the ground floor of the domestic terminal.

PN382

THE COMMISSIONER: Do you know where that is, Ms Justo?

PN383

MS JUSTO: If I may, Commissioner, I have never seen it or heard of it and I've walked every inch of that airport, and I am completely unfamiliar with any ground floor, land - land side being the side on which the public enters the building, and I am completely unaware of that conference room.

PN384

MR SEE: Sir, I will endeavour to give Ms Justo further more specific instructions at the termination of this matter.

PN385

THE COMMISSIONER: All right. Well, what Ms Justo will need is a contact person who will accompany her and show her where that room is or any other rooms - and, Ms Justo, what time are you intending to go to the airport on Sunday?

PN386

MS JUSTO: I have notified the company, Commissioner, that I will be on the premises from 3am until close of business on both days.

PN387

THE COMMISSIONER: 3am, Sunday morning?

PN388

MS JUSTO: Yes, Commissioner.

PN389

THE COMMISSIONER: You will be there at 3am Sunday morning?

PN390

MS JUSTO: Yes, Commissioner.

PN391

THE COMMISSIONER: Okay. Well, we need somebody to show Ms Justo to these various locations so that she knows where she can go during the various meal or non-working time periods.

PN392

MS JUSTO: Commissioner, if I may, I need to advise the Commission of my complete objection to this location because if that is the location in - somewhere I've no idea even physically to imagine now where that could be located, completely removes me from any working area where any employee will actually be, and unless a manager comes, of which there is none directly available at that site, and they don't work on the weekends - there is a level 5 and a level 7 person and a duty manager located at the International Airport - persons have to be directed from a complete far distance in their 10 minute break, it would take them five minutes to walk from wherever their break area is, or wherever they are located in the terminal, to my whereabouts, and I have to say - and I don't wish to drag this out, Commissioner, but if somebody is on the furtherest gate, and they have got a 10 minute break, it takes them 5 minutes to walk to their lunch room, let alone 5 minutes to find me.

PN393

THE COMMISSIONER: All right. Look, if that is going to be a

PN394

problem - - -

PN395

MS JUSTO: I always meet in the lunch room, Commissioner.

PN396

THE COMMISSIONER: Well, what is the problem with it being in the lunch room, Mr See?

PN397

MR SEE: Well, I mean, the advocate for the union indicated what that problem was before we sought the adjournment: that it was in a secure area. The purpose of this adjournment was, as I understood it, for the company to make available facilities. Now Ms Justo is complaining about the location of the facility. She doesn't even know where it is located. So I would - - -

PN398

THE COMMISSIONER: Well, she is taking a guess that it is going to be in an isolated area in the airport, where it is pretty unlikely that if you were firing a shotgun up and down the corridors, you wouldn't hit anybody. That is what she is, in effect, saying.

PN399

MR SEE: Well, sir, I mean, the employer, as we all know, has obligations under these provisions as well, in terms of obstruction and hindering the union undertaking their lawful activity, and they have got no intention of doing that whatsoever. Now I've indicated that we - - -

PN400

THE COMMISSIONER: So, what, Qantas is happy - if she wants to go to the lunch room, albeit that she mightn't see many people there - Qantas doesn't have a problem with that?

PN401

MR SEE: Sir, I have identified the first room facility that Qantas are happy to make available to Ms Justo in the domestic terminal. As I've indicated, they are quite happy, after this matter is disposed of - I'm sure my friend now is getting further instructions as to the exact location - - -

PN402

THE COMMISSIONER: Okay, well, give us the other location.

PN403

MR SEE: The second location is at the International Terminal, the Red Room - meeting room - which is on level 3 of the International Terminal.

PN404

THE COMMISSIONER: Do you know where the Red Room is, Ms Justo?

PN405

MS JUSTO: Yes, indeed, I do, Commissioner. In fact, that is the room where we usually hold our delegates and members meetings. It is behind the so-called barrier between public access and - - -

PN406

THE COMMISSIONER: Well, you shouldn't have any problem with the Red Room?

PN407

MS JUSTO: - - - and employee only access. I have no problem with the Red Room, Commissioner, and I presume that Qantas is intending to escort me from the door to the Red Room, and ensures that I don't depart from that room unless I'm going to the ladies, and she will escort me back to the barrier, to the outside world. But it is the normal place I'm at, Commissioner, and I can assure you the people are too busy, in fact, to engage in anything other than their work during work time.

PN408

THE COMMISSIONER: All right. So the Red Room is okay.

PN409

MS JUSTO: Yes.

PN410

THE COMMISSIONER: Can we just - Mr See, do you have any further advice on the Landside Conference Room?

PN411

MR SEE: No, sir, but I believe it is just coming through now, that information. I'm sorry for the delay.

PN412

THE COMMISSIONER: All right. So they are the two locations, are they?

PN413

MR SEE: That is right, sir.

PN414

THE COMMISSIONER: Is there anything further that you wish to place on the record?

PN415

MR SEE: No, sir, we have made our submissions.

PN416

THE COMMISSIONER: All right. Ms Justo?

PN417

MS JUSTO: Commissioner, you asked of my friend earlier a question in regards to his representation of Qantas, and I understand that he was going to seek advice on that response to you as well.

PN418

THE COMMISSIONER: His representation of Qantas: in which sense?

PN419

MS JUSTO: Yes, if I may, Commissioner, you suggested to him that he spoke on behalf of Qantas, and his - - -

PN420

THE COMMISSIONER: Yes. And his words are Qantas's words is the point that I'm making, as your words are the ASU's words.

PN421

MS JUSTO: Yes, that is correct, Commissioner.

PN422

THE COMMISSIONER: So people who give me undertakings standing down there, I expect them to commit to them and to comply with them; it is as simple as that.

PN423

MS JUSTO: As the whole of Qantas, Commissioner?

PN424

THE COMMISSIONER: Well, no, we are talking about Brisbane. We are not dealing with the whole of Qantas. I'm talking about the issues that arise at the Brisbane Airport.

PN425

MS JUSTO: That is fine. Thank you, Commissioner. That was the question that you asked of him.

PN426

THE COMMISSIONER: Okay. I don't know what is going on in the other states, and I'm sure you don't either.

PN427

MS JUSTO: I have been informed, Commissioner.

PN428

THE COMMISSIONER: But they are not issues before me.

PN429

MS JUSTO: No, indeed, they are not.

PN430

THE COMMISSIONER: Thankfully.

PN431

MS JUSTO: Though certainly some of those that gave rise to the points in my correspondence to the company.

PN432

THE COMMISSIONER: All right. So all we are waiting for now is confirmation of the locality of Landside. I understand that some arrangements have been made as to having some extract of the transcript made available to the parties.

PN433

MS JUSTO: Yes, Commissioner.

PN434

THE COMMISSIONER: Which particular extracts are they?

PN435

MS JUSTO: Those are the extracts, I understand, Commissioner, from approximately 10 past 5 onwards, the last part of the conversation for today. I stand to be corrected, if that is not accurate, Commissioner.

PN436

MR SEE: Sir, my instructions are that the Landside Conference Meeting Room is opposite the lunch room on the ground floor of the domestic terminal. The airport operations co-ordinator is more than happy to, either through that role, or through one of that person's delegates, assist Ms Justo locate either of those facilities.

PN437

THE COMMISSIONER: Okay. Who is the airport co-ordinator?

PN438

MR SEE: Sir, there is a rostering arrangement, depending on the shift, but - - -

PN439

THE COMMISSIONER: Are you aware of the location of those people?

PN440

MS JUSTO: Yes, they are easily accessible, Commissioner.

PN441

THE COMMISSIONER: So the arrangement is you will approach the airport co-ordinator, who will either take you, or delegate somebody to take you to the respective areas.

PN442

MS JUSTO: Yes, Commissioner.

PN443

THE COMMISSIONER: Is that at both terminals, Mr See?

PN444

MR SEE: Yes, sir, and we will provide Ms Justo with a telephone number if that person is - well, he will be on call.

PN445

THE COMMISSIONER: Does that satisfy you?

PN446

MS JUSTO: Thank you, Commissioner, it does. It needed clarifying, so it generally means in the general public area, which is not where this conference room is.

PN447

THE COMMISSIONER: Well, I don't believe there is anything further the parties need to tell the Commission, is there, at this stage?

PN448

MS JUSTO: Thank you for your time, Commissioner.

PN449

MR SEE: No, sir.

PN450

THE COMMISSIONER: Okay. On that basis, I will adjourn these proceedings.

ADJOURNED INDEFINITELY [5.50pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ASU 1 LIST OF LOG OF CLAIMS COVERED BY CORRESPONDENCE FROM MS WHITE TO MR SCHOFIELD PN95
EXHIBIT #ASU 2 CORRESPONDENCE OF PROPOSED AGENDA FOR MEETING ON 16 AUGUST 2002 PN99