C2002/3519, Transcript of Proceedings [2002] AIRCTrans 3981 (7 October 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

C2002/3519

THE AUSTRALIAN LICENSED AIRCRAFT ENGINEERS
ASSOCIATION

and

JET CARE PTY LTD

Application under section 170LW of the Act
for settlement of dispute re shift work - rosters
and roster changes

BRISBANE

12.06 PM, MONDAY, 23 SEPTEMBER 2002

Continued from 23.7.02

PN13

THE COMMISSIONER: Could I have appearances, please?

PN14

MR D. WILLIAMS: I am a solicitor with Minter Ellison. I seek leave to appear for Jet Care Pty Limited.

PN15

THE COMMISSIONER: I'll deal with that application shortly. Thank you, Mr Williams.

PN16

MR WILLIAMS: Thank you, Commissioner.

PN17

MR G. NORRIS: On behalf of the ALAEA, Commissioner, and may I offer my apologies in confusing the two matters today. I transposed both matters into the 1.30 timeslot. My apologies.

PN18

THE COMMISSIONER: Very well. Now, your attitude to Mr Williams being granted leave?

PN19

MR NORRIS: We have no objection, Commissioner.

PN20

THE COMMISSIONER: Very well. There is no objection: on that basis, I'll grant you leave. Thank you, Mr Williams.

PN21

MR WILLIAMS: Thank you, Commissioner. Commissioner, I think that technically I believe there are two matters before you. One is a dispute notification by my client - - -

PN22

THE COMMISSIONER: Wait on. This application as I understand it, is by ALAEA.

PN23

MR WILLIAMS: There is an application before ALAEA before you. The sequence of event was that my client through my office notified a dispute about a rostering issue and that was originally listed for 1.30 today. Mr Norris then asked - - -

PN24

THE COMMISSIONER: Well, it still is.

PN25

MR WILLIAMS: Well, Commissioner - - -

PN26

THE COMMISSIONER: Well, it still is.

PN27

MR WILLIAMS: - - - our understanding was that we'd reached an agreement I thought with your office that they'd both be - - -

PN28

THE COMMISSIONER: No.

PN29

MR WILLIAMS: - - - listed together.

PN30

THE COMMISSIONER: There's been no agreement with my office at all. What I said was that I would hear the parties when this matter was brought on, and then we'd determine as to whether or not the matters should be joined or heard together or heard conjointly or whatever.

PN31

MR WILLIAMS: Yes, all right. I - - -

PN32

THE COMMISSIONER: So the matter before me is the ALAEA application. Mr Norris?

PN33

MR NORRIS: Yes, Commissioner. If I may, Commissioner, this matter was before the Commission some time ago in March. And on that day, we had some prior discussions with the company before that hearing and we agreed to notify the Commission that we'd adjourn or seek adjournment of the matter on that day after having put what the issues in dispute were on transcript. Now, Commissioner, that agreement we had with the company was basically that they were undergoing a CASA audit and those circumstances arose after our application.

PN34

We agreed that in the light of the CASA audit, and knowing full well that CASA may issue certain directions both to the AOC holder being Virgin and to Jet Care which may affect manning, may affect rosters, hours of work and the manner and way in which work is done, we agreed with the company that it would be more appropriate to reconvene at a later date at a meeting with the company through our consultative committee to discuss the results of that audit. Now, Commissioner, that meeting hasn't taken place. We haven't been briefed in a manner in which we can address the roster issue. And our members would require that - or our reps in Brisbane have notified me that they require - that they'd be happy to sit down with the company at the company's earlier convenience. But the sort of information that they would need to have tabled would be - - -

PN35

THE COMMISSIONER: Well, why hasn't that happened before today?

PN36

MR NORRIS: Well, we were unaware of this application, Commissioner, and - - -

PN37

THE COMMISSIONER: Which application?

PN38

MR NORRIS: Well, the section 99 application.

PN39

THE COMMISSIONER: Well, you're aware of it once you've received it: once we listed it.

PN40

MR NORRIS: We were, Commissioner, and we have approached the company as I did in correspondence of 16 September 2002 which I sent a copy through to the Commission and I take it that that would be in the Commission's file.

PN41

THE COMMISSIONER: Yes.

PN42

MR NORRIS: It's addressed to Brian Fraser, the Managing Director of Jet Care, a copy to Mr Dennis Cavanagh. It's dated 16 September 2002 and, Commissioner, we quite - - -

PN43

THE COMMISSIONER: Well, I certainly have that.

PN44

MR NORRIS: We quite clearly say in the second paragraph that we understood the company's need and co-operated by agreeing to put the roster matter on record and seek adjournment. And it was our clear understanding that we would revisit the roster issue through the consultative committee after the results of the CASA audit was known and what manning and licence requirements were required for the future. Now, Commissioner, if it pleases the Commission, we might have that correspondence marked.

PN45

THE COMMISSIONER: Well, it forms part of the bench file.

PN46

MR NORRIS: Oh, if that's the case. Now, since then, Commissioner, I have had a phone conversation with the representatives of Jet Care in regard to the way it might progress and we're quite happy to organise a local meeting with our reps and management as soon as possible. The types of information that they would need would be the implications of the CASA order on manning, licence coverage and that requirement. And we also understand that there may be in the light that Virgin was involved in the CASA audit as well, that there may be certain commercial requirements placed on Jet Care by Virgin as well. And our members are quite happy to address those issues, as they did previously in the previous environment, by putting forward a roster proposal.

PN47

THE COMMISSIONER: This sounds like you've all been out of the country. Nobody is talking to one another.

PN48

MR NORRIS: Well, that is basically what has happened, Commissioner. We've had informal contact with the company in regard to various matters. But in regard to this particular matter, it was our clear understanding that we were basically in a holding pattern until we could be fully informed and briefed on the new environment that Jet Care are facing and we haven't got a problem with that. I will say though, Commissioner, that it's quite clear by the Certified Agreement that any roster issues would be dealt with - - -

PN49

THE COMMISSIONER: Just take me to that.

PN50

MR NORRIS: If I could take you to clause 9, Commissioner, of the Certified Agreement.

PN51

THE COMMISSIONER: We've probably been down this road before but just refresh my memory.

PN52

MR NORRIS: That was the intention, Commissioner. Clause 9 of the Certified Agreement basically is a heading which said:

PN53

Award Conditions Excluded Or Varied -

PN54

and says:

PN55

The following safety net award clauses are excluded either because of relevancy or variation by replacement provisions outlined under special conditions of employment.

PN56

Now, Commissioner, if you go through that list it starts:

PN57

Introductory Clauses -

PN58

but it quite clearly says:

PN59

Hours of duty day shift clause 16 and hours of duty shift work clause 17 have been excluded or varied.

PN60

And, Commissioner, there is clauses further on in the Certified Agreement. In clause 10, hours of duty; clause 11, hours of duty day work and clause 12, hours of duty shift work. And, of course, clause 14, shift work and rosters and roster changes which are covered in the Certified Agreement. Commissioner, it would be our submission that section 170LY of the Act was quite clear in that the award terms and conditions don't apply if the Certified Agreement is not inconsistent with the - if on purpose the parties have varied those clauses in the award.

PN61

We don't see any inconsistency, Commissioner, because these clauses were designed to over write those clauses in the award. And particularly, Commissioner, the company has maintained from day one that they have unilateral right to tell their employees what hours of work and what roster pattern and what roster changes they can make once a roster pattern is agreed. Now, Commissioner, the way this agreement was structured: it set up a standard roster at the time of the commencement of the agreement, and that goes to clause 12 where it says:

PN62

And for the duration of the agreement until notice is given in terms of clause 14, the following arrangements shall apply to shift work arrangements which shall span the major part of a calendar day.

PN63

And those shift work arrangements are basically a four on, four off roster which are outlined in clause 12. But what has happened in the history of this, Commissioner, is that under the previous Manager of Engineering, Mr Graeme Rosemond, the company initiated a review of the roster on or about February 2001. And Mr Rosemond with Mr Roud and Mr Arden discussed a number of incidents being safety incidents, their investigation and some complaints and mistakes involving LAMEs on shift. For example, one instance occurred with a hydraulic connection being forgotten and the complaints revolved around mistakes that were made by engineers due to tiredness and insufficient rest away from the workplace.

PN64

THE COMMISSIONER: Well, let us have a look at the Certified Agreement.

PN65

MR NORRIS: Yes, Commissioner.

PN66

THE COMMISSIONER: Looking at clause 14; are we dealing with shift work rosters and roster changes; is that the issue that you bring to the Commission?

PN67

MR NORRIS: That's correct, Commissioner.

PN68

THE COMMISSIONER: All right. Well, I mean, both parties seem to have some rights under this proposition but ultimately it seems to me that if you look at the first paragraph of clause 14:

PN69

At least one month's notice shall be given by the company if because of variations to the contract by Virgin Airlines the company wishes to change the arrangements provided in clause 11 -

PN70

MR NORRIS: That's correct, Commissioner.

PN71

THE COMMISSIONER:

PN72

... involving total day work or alternative shift arrangements encompassing a variable spread of hours ...(reads)... if requested by any party.

PN73

MR NORRIS: That's correct, Commissioner.

PN74

THE COMMISSIONER: So that seems clear enough on its face that there needs to be some consultation. And then it goes further - - -

PN75

MR NORRIS: In relation to clause 11, Commissioner.

PN76

THE COMMISSIONER: Yes. Then it goes further:

PN77

Shift work rosters will specify the commencing time of shifts ...(reads)... between the company and a majority of employees affected.

PN78

Well, that seems to be clear on its face. And then:

PN79

At least 24 hours notice will be required for any change within an established roster ...(reads)... in the case of changes involving 24 hours notice the company will first seek volunteers.

PN80

Now, what is the company telling you they want to do that you're complaining about?

PN81

MR NORRIS: Well, Commissioner, we maintain that they can't vary the standard - they can't vary the pattern of the shift work or the hours of the shift work unless it's by agreement of a majority of employees affected. The company is saying, no, that they have a right to just decree what the roster is and revert to that. Now, we understand that the company is relying on the first paragraph of clause 14 which basically says they only have to give one notice but, however, Commissioner, that clause - that part of clause 14 only relates to clause 11. Now, clause 11 - - -

PN82

THE COMMISSIONER: That's day work.

PN83

MR NORRIS: Well, it's hours of duty day work. It doesn't pertain to this matter at all. So we say clause - the first paragraph is not relevant to what we're talking about today and we do acknowledge that the second paragraph, which relates to specifically the changes to a roster, provide, however, that the standard shift work roster may be varied by agreement between the company and a majority of employees affected.

PN84

THE COMMISSIONER: All right, well, so has the company indicated to you and your members what it desires or requires in terms of a change for the shift work roster?

PN85

MR NORRIS: Well, we understand, Commissioner, that by the nature of section 99 application that they wish to revert from the four on, five off roster, which is now the agreed standard in Brisbane back to a four on, four off roster.

PN86

THE COMMISSIONER: They want to - you say they want to revert back to which roster?

PN87

MR NORRIS: From a four on, five off roster to a four on, four off roster.

PN88

THE COMMISSIONER: Okay. And you're saying they can't do that unless they have got the majority consent - - -

PN89

MR NORRIS: That's right, Commissioner.

PN90

THE COMMISSIONER: - - - of the employees who will be affected by any such change.

PN91

MR NORRIS: That's correct, Commissioner. Commissioner, there may be some conjecture over what the standard roster is in regard to clause 12, because clause 12 does outline the four on, four off roster. However, in Brisbane that was changed because of safety and health reasons to a four on, five off roster.

PN92

THE COMMISSIONER: When?

PN93

MR NORRIS: That was in June of 2001.

PN94

THE COMMISSIONER: Was that by agreement, was it?

PN95

MR NORRIS: That was by agreement, Commissioner. And that's the current roster that is in place and has applied since then.

PN96

THE COMMISSIONER: That was in June of 2001.

PN97

MR NORRIS: That's right, Commissioner.

PN98

THE COMMISSIONER: And you say that was approved by a majority of the employees affected.

PN99

MR NORRIS: That's correct, Commissioner.

PN100

THE COMMISSIONER: Yes.

PN101

MR NORRIS: I was saying, Commissioner, that that roster came about because of some safety incidents and some fatigue related incidents where the complaints revolved around mistakes that were being made by engineers due to tiredness or insufficient rest away from the workplace.

PN102

THE COMMISSIONER: Well, I'm not concerned about that. I'm concerned about what the dispute is about.

PN103

MR NORRIS: Well, I suppose - - -

PN104

THE COMMISSIONER: The dispute is about - in reality the dispute is about the company says it wants to work particular shift rosters and you say they can't.

PN105

MR NORRIS: Well - - -

PN106

THE COMMISSIONER: Unless they get your agreement.

PN107

MR NORRIS: That's correct, Commissioner. That's what we say.

PN108

THE COMMISSIONER: That's the long and short of it, isn't it?

PN109

MR NORRIS: That's the long and short of it. Commissioner, I might just say in relation to this 170LW application, if we go to clause 32, the disputes avoidance and settlement procedure, that says:

PN110

Subject to the Workplace Relations Act 1996 as amended from time to time any - - -

PN111

THE COMMISSIONER: Well, that's probably why I've got section 99.

PN112

MR NORRIS: That could be correct, Commissioner, however - - -

PN113

THE COMMISSIONER: Without being facetious.

PN114

MR NORRIS: Yes.

PN115

... as amended from time to time any dispute, claim or grievance shall be dealt with in the undermentioned matter.

PN116

And then we've been through probably most of this disputes procedure, Commissioner, but item 4 is:

PN117

If the dispute is not settled it may be submitted to a Member of the Australian Industrial Relations Commission ...(reads)... with the Act be filed and shall be accepted by the parties.

PN118

Now, Commissioner - - -

PN119

THE COMMISSIONER: Well, we haven't reached that stage yet, have we?

PN120

MR NORRIS: We haven't, Commissioner, and we don't propose that we're in arbitration stage at all. We believe there's one more step to go and that is that the employees should be given the opportunity to consider the commercial implications of what the company is proposing in regard to the company's operations.

PN121

THE COMMISSIONER: All right. So what are you saying that - you're saying that the company might be able to convince the workforce by majority - - -

PN122

MR NORRIS: Well, they are a logical workforce, Commissioner.

PN123

THE COMMISSIONER: - - - that there's a need for this change to the shift rosters to be made and it's in the best interests of both the company and its workforce.

PN124

MR NORRIS: That may be the case, Commissioner, but at this point in time we're unsure of that.

PN125

THE COMMISSIONER: All right. Mr Williams?

PN126

MR WILLIAMS: Thanks, Commissioner. Commissioner, the matters before you - - -

PN127

THE COMMISSIONER: The matter.

PN128

MR WILLIAMS: The matter - I think I said "matter". The matter or at least the issues before you, because it's at the company's request and also at the - intended to be the company's request, although that matter is not formally before you at the moment. And it was at the union's request because it's urgent and important. Commissioner, Mr Norris took you to provisions in the certified agreement. Originally when the certified agreement was first certified the roster arrangement - the standard roster arrangement was set out in clause 12 and that was a four by four roster.

PN129

So the certified agreement provides for a four by four roster. Can I say that that appears to be the industry standard, one which is recognised by every airline company and in particular, of course, by Virgin, but also by CASA and other stakeholders across Australia and I think in other parts of the world as well. Now, as Mr Norris says, in around about June of last year that was varied to a four by five roster. Mr Norris says it was by agreement.

PN130

There doesn't appear to be any evidence of any formal kind of agreement but that's - I'm not concerned about that. There's no doubt that the change was made. Now, since then, Commissioner, the matter has been before you and Mr Norris has perhaps put on the record his view that really we should have come back to you in his application rather than ours. Commissioner, there is a reason for that and that is because the four by five roster has excited a deal of concern both with Virgin and also with CASA.

PN131

And, in fact, CASA - an undertaking has been given to CASA to bring the matter to a resolution quickly, so the company was under some obligation to do that. Having said that it doesn't really matter how the matter is resolved but there is a need - and we need to express this in a most serious way, there is a need for a quick resolution to it. Now - - -

PN132

THE COMMISSIONER: We sound like we've got a Mexican stand-off at the moment.

PN133

MR WILLIAMS: Well, we might have. Up to now, Commissioner, we have. The matter has been discussed between the parties and all or most of the dispute resolution procedure was followed and that was following a directive. Perhaps that puts it a bit highly but a direction to the workforce that there would be a return to the four by four roster on a month's notice.

PN134

Now, Commissioner, can I say - and I'm not sure if it needs to be or can be determined now, but on my reading of the certified agreement there just can be no doubt that the company has the right, with appropriate consultation we accept, to vary the roster arrangement on one month's notice, and clause 12 seems to make that abundantly clear. It says:

PN135

If at least one month's notice shall be given if because of variations to the contract by Virgin Airlines the company wishes to change clause 14 the arrangements provided in clause 11, involving total day work or alternative shift work arrangements.

PN136

So the shift work arrangements are certainly the subject of that notification and that seems clear also from clause 12 which says:

PN137

That for the duration of this agreement or until notice is given in terms of clause 14.

PN138

So notification or notice under clause 14 certainly applies to the shift work clause in clause 11. Now, equally, there's no doubt that Mr Norris' union takes a different view and when the matter was last the subject of a notification what Mr Norris tried to do, and nobody can blame him for acting in at least the perceived best interests of his members, but first of all he said, no, and he's expressed a view expressed to you today that agreement is needed of a majority and for reasons which we can elaborate on that can't be right, but also sought to resolve or to bring into that dispute, or as a resolution of that dispute, a couple of other unrelated matters including a pay issue and also a uniform issue.

PN139

And that was as a pre-conditioned even to a - on the face of the correspondence - even to a discussion of the matter. Now, I appreciate that Mr Norris has said that he's open for further discussion and we welcome that and we might be able to pursue that today, but really the union had sought to put obstacles in the way of the company and to tie the resolution of that issue - obviously an important one for the company - to some unrelated issues. Now, I guess when you think you've got the whip hand you may as well make the most of it, but if that's continued, if that attitude persists, then both the company, and, therefore, the work-force is going to be in some serious difficulty shortly.

PN140

And I say that because although Mr Norris may well be right that there were some perceptions of fatigue management issues and perhaps some other problems with the four by four and there was an alternative tried, it hasn't worked. The four by four is the standard, so if the company has got that wrong, well, so has the whole industry. The four by five has two significant problems associated with it - probably three - but the first one is that operationally it doesn't work because it doesn't guarantee availability of labour at peak times to put it simply.

PN141

As a result of that when the peak times come around there is an unacceptable requirement on the work-force to work overtime. Now, that's good for them in a money sense but bad for them in other ways and not only Virgin, but CASA, have now formed the view that particularly that overtime issue is causing unacceptable fatigue management issues, so, ironically, what was hoped to be the solution has, in fact, turned out to be a greater problem.

PN142

But irrespective of all of those things, whether those views are accurate or not, they're views which CASA apparently holds and they're views which the client, Virgin, apparently hold and not in a particularly negotiable or flexible way. What they want is for this company to return, immediately, to the four by four arrangement. Now, Commissioner, if we have to do that, or secure that by an arbitration of the dispute which has apparently arisen out of the certified agreement, then that's what we will have to do and we may have to do that quickly. Alternatively, of course - - -

PN143

THE COMMISSIONER: Well, let me tell you when we're going to do it, Mr Williams. I'm going to adjourn very shortly and give you parties the opportunity to talk. If you don't resolve it at 1.30 I'm going to hear that.

PN144

MR WILLIAMS: Yes.

PN145

THE COMMISSIONER: And so we will get something resolved quickly one way or the other.

PN146

MR WILLIAMS: Yes.

PN147

THE COMMISSIONER: All right?

PN148

MR WILLIAMS: Yes, we certainly need a resolution.

PN149

THE COMMISSIONER: Okay. Well, I'm going to adjourn now. I'm going to direct the parties into conference and I will get a report back at 1.30 and subject to the outcome of that conference I'm going to then deal with this dispute consistent with the terms of the certified agreement and subject to the section 170LW application.

PN150

MR NORRIS: Commissioner, if I may say just before that happens. There's a few statements that Mr Williams has made that - - -

PN151

THE COMMISSIONER: Well, I'm not interested in statements, Mr Norris. I want to see if you parties can fix this. Right? This isn't about Brownie points and scoring points, it's about whether you can fix it or not and if you can't the Commission will have to. That's what it is down to. So I will adjourn now and I will resume at 1.30 for report back and failing the matter not being settled at 1.30 we will proceed to arbitration. On that basis I will adjourn.

LUNCHEON ADJOURNMENT [12.30pm]

RESUMED [1.35pm]

PN152

THE COMMISSIONER: Mr Williams?

PN153

MR WILLIAMS: Yes, thanks, Commissioner. Commissioner, the company's position is that we don't, in principle, see any difficulty with you dealing with the matter now. As far as we are concerned, it's a straight interpretation of the agreement, what the company's rights are and what they aren't and we don't think there is any need for any further ceremony about that. So we would be prepared to proceed.

PN154

However, the company also recognises that if it is a decision which is made, even reluctantly, by agreement, it is probably more likely to be an harmonious one thank one which is directed. So, having discussed the matter with Mr Norris, Mr Norris has given us some comfort - some real comfort - that if there is a further very short period of time for the parties to try and sort it out, as I think you put it, that might give us what we want. So the company's position is that we are prepared to do that but only on particular terms and conditions and I did say that the matter was urgent and it genuinely is.

PN155

Commissioner, a meeting has been proposed for tomorrow with the relevant people and, at that point, it would be the company's intention to put the proposal - in some sense, I suppose, put it again - but put it in the context of the commercial and regulatory pressure which is building up - Mr Norris says that his opinion of the workforce is that they will be receptive to that - and to see if the proposal can be granted, or to return to the certified agreement arrangement by agreement. Commissioner, we are optimistic that will achieve a result. We hope it does but if you are minded to go down that course which, I think, will be urged by Mr Norris, could we have a date next week where, if that fails, we can undertake the course you propose?

PN156

THE COMMISSIONER: What about this Thursday?

PN157

MR WILLIAMS: That will be fine by us, I think. It is only a question of whether it would give Mr Norris' process a chance to work properly but, in principle, we would be happy with that.

PN158

THE COMMISSIONER: Well, the Commission has Thursday available.

PN159

MR NORRIS: Commissioner, we would be happy with Thursday, preferably - - -

PN160

THE COMMISSIONER: Thursday at 10 am?

PN161

MR NORRIS: Commissioner, preferably if it was in the afternoon. We have our national conference on on the Wednesday and I will have to get back from Adelaide.

PN162

THE COMMISSIONER: To where?

PN163

MR NORRIS: To here.

PN164

THE COMMISSIONER: Well, planes fly at night time, Mr Norris.

PN165

MR NORRIS: They do, Commissioner, but - - -

PN166

THE COMMISSIONER: Well, 10.15 Thursday. All right. So the parties are of one mind on that, are they, that they want the opportunity to meet tomorrow. In the event that that fails to resolve their differences, the parties are committed to appear before this Commission at 10.15 am on Thursday, 26 September, with a view to the Commission hearing the parties in terms of evidence, if necessary, and submissions, and determining the matter consistent with the disputes avoidance clause which, I think, is at clause 32 of the certified agreement known as Jetcare Aircraft Engineers Virgin Blue Agreement 2000-2002 which is currently in term having been certified by this Commission on 7 March 2001. On that basis, I will adjourn these proceedings.

ADJOURNED UNTIL THURSDAY, 26 SEPTEMBER 2002 [1.40pm]