AG2002/1265, Transcript of Proceedings [2002] AIRCTrans 664 (4 March 2002)

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TRANSCRIPT OF PROCEEDINGS


O/N VT02578

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

AG2002/1265

ANSETT AUSTRALIA UNION COLLECTIVE
BARGAINING AGREEMENT 1999

Application pursuant to section 170MD of the Act
by Ansett Australia Limited for a variation of
the above agreement re extension of clause 25A,
Stand Down during period of administration

MELBOURNE

1.17 PM, FRIDAY, 15 FEBRUARY 2002

PN1

MR D. McLAUGHLIN: I seek leave to appear for Ansett Australia Limited, Administrators appointed.

PN2

MS L. RUBINSTEIN: I appear for the ACTU and for all the union parties which appeared on the last occasion.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes.

PN4

MS RUBINSTEIN: I could attempt to read them all out to you, if that was necessary.

PN5

THE SENIOR DEPUTY PRESIDENT: I think we have been through this process often enough to be familiar with them.

PN6

MS RUBINSTEIN: I thought that might be the case.

PN7

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Rubinstein, there is no objection to Mr McLaughlin's leave for him.

PN8

MS RUBINSTEIN: No, no, your Honour, there is no objection.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes, very well, leave is granted, Mr McLaughlin.

PN10

MR McLAUGHLIN: Your Honour, you have given me the lead-in to my submissions in that I am sure you are more than familiar with the circumstances leading up to this application. Just very briefly, as you are aware, a stand-down clause was placed in the Ansett Australia Union Collective Bargaining Agreement 1999 on 14 September. It was since varied by yourself on 21 December and again on 1 February. And in those proceedings on 1 February the clause was given a further life until 15 February 2002.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes.

PN12

MR McLAUGHLIN: Your Honour, in that order there were, whilst the clause itself was given a life to 15 February, there were various exemptions made to that with the clause having an earlier expiry date for various identified parts of the Engineering Business Unit. This application when it was filed sought to extend the operation of the clause to 28 February 2002 and virtually to do very little else. Since that time there have been discussions with the ACTU.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes.

PN14

MR McLAUGHLIN: And I can report that agreement has been reached on the form of variation that is sought today.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes.

PN16

MR McLAUGHLIN: I have given to your associate two documents. One is headed Attachment, Ansett Australia Union Collective Bargaining Agreement 1999. It is an amended attachment to the application that was filed earlier this week.

PN17

THE SENIOR DEPUTY PRESIDENT: So you would seek to have that treated as the active attachment to the application?

PN18

MR McLAUGHLIN: To the application, that is correct, your Honour.

EXHIBIT #A1 AMENDED ATTACHMENT TO APPLICANT'S APPLICATION

PN19

MR McLAUGHLIN: Thank you, your Honour, and I have also handed a document headed, Order, which should also be, I think, marked as an exhibit.

EXHIBIT #A2 ORDER SOUGHT

PN20

MR McLAUGHLIN: Yes, your Honour, and A2, in fact, sets out the way the stand-down order should look as a result of the application, today's application. That is, it sets out in full clause 25A(6) with the amendments as sought in the application and also the new sub-clause which is also sought as part of the application, 25A(7).

PN21

THE SENIOR DEPUTY PRESIDENT: So, in effect, the variation could be affected by deleting clause 25A(6) and replacing it with clauses 25A(6) and A(7) as appear in exhibit A2?

PN22

MR McLAUGHLIN: Yes, your Honour.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN24

MR McLAUGHLIN: Yes, and that, in fact, might be neater way of putting the application into effect.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN26

MR McLAUGHLIN: The effect of the variations is that the clause will cease to have effect at midnight on 22 February 2002, except that in the case of employees in the Engineering Business Unit who are subject to the Ansett Australia National Union of Workers Functional Appendix where the clause has already ceased to have effect from 4 February 2002. In relation to employees in the Engineering Business Unit in Melbourne, Sydney and Perth, subject to the Ground Support Equipment Functional Appendix where the clause shall cease to have effect from midnight tonight.

PN27

In the case of employees employed in Brisbane in the Engineering Business Unit who are subject to the Ground Support Equipment Appendix, the clause shall cease to have effect in line with the general final date of midnight on 22 February 2002. And then in all other respects in relation to the Engineering Business Unit, where again the clause has already ceased to have effect as at midnight on 1 February 2002.

PN28

Also as part of the agreed variation following the discussions with the ACTU, we are proposing to put in clause 25A(7) which is, in fact, in effect, an automatic extension of the clause to 28 February 2002 provided there is no objection lodged by the ACTU in writing to the Administrator and the Commission by 20 February.

PN29

THE SENIOR DEPUTY PRESIDENT: Which in practical terms means if it were necessary a further agreed extension, presumably on the basis that in the absence of agreement such objection would be made.

PN30

MR McLAUGHLIN: I mean, the - - -

PN31

THE SENIOR DEPUTY PRESIDENT: Well, in - - -

PN32

MR McLAUGHLIN: - - - intent is there is no need to come back to the Commission - - -

PN33

THE SENIOR DEPUTY PRESIDENT: Yes, that is right.

PN34

MR McLAUGHLIN: - - - unless there has been an objection raised.

PN35

THE SENIOR DEPUTY PRESIDENT: Yes, that is - - -

PN36

MR McLAUGHLIN: That there will be an automatic extension.

PN37

THE SENIOR DEPUTY PRESIDENT: That is right.

PN38

MR McLAUGHLIN: Yes.

PN39

THE SENIOR DEPUTY PRESIDENT: But in practical terms, presumably unless there was agreement to further extension, such objection would be made so the automatic extension would, for all practical purposes, be by agreement. Because absent agreement, such objection would be made and the clause would not - - -

PN40

MR McLAUGHLIN: And we will be back here if need - - -

PN41

THE SENIOR DEPUTY PRESIDENT: Yes. Yes.

PN42

MR McLAUGHLIN: Well, if need be.

PN43

THE SENIOR DEPUTY PRESIDENT: Yes. Very well.

PN44

MR McLAUGHLIN: Yes. Yes, that is right, your Honour. And the position is that the Administrators have determined that the sale must be concluded by 28 February 2002 and that is why that extension, possible extension is sought to that date.

PN45

THE SENIOR DEPUTY PRESIDENT: Yes, but plainly the Administrator and the union parties are hopeful that clause 25A(7) will not have any practical effect.

PN46

MR McLAUGHLIN: Yes, your Honour, certainly I think everyone is working towards concluding the matter as quickly as possible.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes. Yes. Very well.

PN48

MR McLAUGHLIN: Your Honour.

PN49

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr McLaughlin. Yes, Ms Rubinstein.

PN50

MS RUBINSTEIN: The ACTU and the unions agree with the position that has been put and to the form of the order, your Honour.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Ms Rubinstein. Yes. This is an application pursuant to section 170MD(6) by Ansett Australia Limited Administrators Appointed to vary the Ansett Australia Union Collective Bargaining Agreement 1999. That agreement has previously been varied initially by Boulton J in September 2001 to insert stand-down provisions during the period of administration.

PN52

It was subsequently varied by myself in December 2001 and February 2002 to extend the period of operation of a stand-down provision. The present application seeks to further extend the stand-down provision until 22 February. In addition, it provides a provision that a further extension to 28 February 2002 shall apply unless the Australian Council of Trade Unions on behalf of the various union parties or one of them to the agreement notifies the Administrator and the Commission in writing by 20 February 2001 that it objects to a further extension to 28 February 2002.

PN53

The application in those terms is consented to by the union parties through the ACTU. I am satisfied that I should vary the agreement in the form sought. To do so would be consistent with the rationale of the stand-down provision and its prior extensions and in the interests of seeking to allow the continuation of employment of as many as possible of the former Ansett employees through the commercial arrangements being entered into between the Administrator and APESMA. I will vary the order in the terms sought.

PN54

The order shall operate - come into force from today's date and shall remain in force for a period of three months. I will now adjourn these proceedings.

ADJOURNED INDEFINITELY [1.27pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 AMENDED ATTACHMENT TO APPLICANT'S APPLICATION PN19
EXHIBIT #A2 ORDER SOUGHT PN20