C2002/6115, Transcript of Proceedings [2003] AIRCTrans 123 (14 January 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

C2002/6115

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION

and

QANTAS FLIGHT CATERING LIMITED

Notification pursuant to section 99 of the Act
of a dispute re return to work of a union member

SYDNEY

2.32 PM, FRIDAY, 20 DECEMBER 2002

PN1

THE COMMISSIONER: Can I have the appearances please?

PN2

MS E. MAIDEN: I appear for the Australian Services Union, Airlines Branch, and with me is MR A. BAYEH.

PN3

MR J. McKENZIE: If the Commission pleases I appear for Qantas Flight Catering Limited.

PN4

HIS HONOUR: Yes, Ms Maiden?

PN5

MS MAIDEN: Thank you, Commissioner. Mr McKenzie has foreshadowed that Qantas would be seeking to adjourn these proceedings and we would be opposing that application. What I would propose to do I'd like to make some brief submissions that go to the nature of the dispute notification today before Mr McKenzie goes to his matter in relation to the adjournment, if that is okay with the Commissioner.

PN6

THE COMMISSIONER: Yes.

PN7

MS MAIDEN: Thank you. We'd like to thank the Commission for listing this matter at short notice. It relates to matters that the Commission has been involved with previously, the standing down of Mr Tony Bayeh who's a supervisor with Qantas Flight Catering. Mr Bayeh was stood down following a recommendation by yourself on 30 May 2002 and he was stood down pending the outcome of an investigation by former SDP MacBean into four incidents at Qantas Flight Catering. Has the Commissioner got a copy of the transcript from that matter? I have copies with me.

PN8

THE COMMISSIONER: Yes, I think I have.

PN9

MS MAIDEN: I don't know whether it's appropriate for me to tender it as an exhibit or whether just to refer to it. I have a copy for Mr McKenzie.

PN10

THE COMMISSIONER: I think it is best if you tender it as an exhibit because while I have the other file that other file is not formally before me. We haven't called that on so - - -

PN11

MS MAIDEN: Sure. I'd like to tender that as an exhibit if I may?

PN12

THE COMMISSIONER: I'll mark that exhibit ASU 1.

EXHIBIT #ASU 1 COPY OF TRANSCRIPT DATED 30/05/2002

PN13

MS MAIDEN: Thank you. Commissioner, your recommendation is at paragraph number 1209 just right at the end of that transcript where you say:

PN14

Until that investigation is complete and those discussions occur involving the TWU and the ASU to discuss the findings -

PN15

This is the investigation of MacBean:

PN16

- and any recommendations that come out of that review it is my recommendation that Mr Bayeh not be allowed to return to his previous workplace.

PN17

That was the essence of your recommendation on that day. Qantas have indicated that they have accepted your recommendation and they did so in a letter to the TWU dated 8 August. If I could seek leave to tender that as well.

PN18

THE COMMISSIONER: I will mark that exhibit ASU 2.

EXHIBIT #ASU 2 LETTER FROM QANTAS TO TWU DATED 8 AUGUST

PN19

MS MAIDEN: Thank you. Commissioner, just the last paragraph there in this letter from Rob Harden where it summarises your recommendations, Commissioner, and then it says:

PN20

We accept these recommendations and will follow the process outlined above.

PN21

Qantas have subsequently in subsequent letters to Mr Bayeh's solicitors and more recently in a letter to the ASU interpreted your recommendation to mean that Mr Bayeh cannot return to his former duties but can undertake alternate duties and this is something that they made clear from the outset to Mr Bayeh's solicitors and possibly in a letter to us but they have definitely confirmed it more recently in a letter. I don't know whether it's necessary for me to tender that. I don't think that is necessarily controversial.

PN22

Mr Bayeh had been on workers' compensation from 17 June 2002 and he had been, because of that, unable to return to any duties be they his former duties or alternate ones at Qantas. However, Mr Bayeh's doctor has now cleared him to return to his former duties and there may be some minor outstanding matters in relation to that but that is what has prompted the ASU to do this notification of industrial dispute last Monday. Mr Bayeh is very keen to return to his former duties forthwith which I think is definitely something to be encouraged in relation to someone that has been on workers' compensation to be so keen to go back as soon as possible.

PN23

The dispute notification followed a meeting with Mr McKenzie of Qantas on Friday of last week where we formally requested that Qantas return Mr Bayeh to his former duties and Qantas declined to do so stating that Mr Bayeh would have to return to alternate duties consistent with their interpretation of your recommendation.

PN24

Commissioner, I don't want to go into too much detail about the history of this matter because we could be here for some time if I did that and you're probably in a better position to know a lot of that history than myself who is relatively new to the matter but there are just some relevant dates and incidents that I'd just like to refer to briefly just to give us a very quick background.

PN25

The four incidents that were referred to in the MacBean investigation, and I am going to the status of the MacBean investigation in a minute as well, and those incidents are a complaint by Tony Bayeh about an incident on 7 December 2001, secondly, a claim by TWU delegates in relation to Tony Bayeh regarding Erica Ryback on 28 December 2001, thirdly, a claim by TWU delegates, again in relation to Tony Bayeh, which is this level 2 air site incident which was from 3 January 2002 and, fourthly, a complaint by Tony Bayeh in relation to an incident on 26 February 2002. So those are the four incidents in chronological order, late 2001/early 2002, some time ago now.

PN26

Now these incidents have all been investigated by Qantas and those investigations have not substantiated any findings against Tony Bayeh. Alternatively, findings on some matters have been substantiated against TWU delegates. Tony Bayeh has never appealed those Qantas internal investigations and it's the TWU that has appealed those internal investigations in relation to those four incidents.

PN27

Now, another incident that I'd just like to remind the Commissioner of is an incident that occurred on 6 May 2002, not one of those four, and it was between Tony Bayeh and Jim Dionysopolous. He made a complaint against Tony Bayeh as a result of that incident. There was an investigation by Qantas and the findings were not substantiated against Mr Bayeh. Yourself, Commissioner, considered those matters in May of this year, all of them, the four and the later incident of 6 May. I believe there were hearings, conciliations conferences in May, 8 May, 16 May, 20 May and 30 May; I think those are the dates. My transcript records are incomplete unfortunately.

PN28

The Commission sitting arose out of threatened industrial action by the TWU due to Qantas' proposal to return Tony Bayeh to his former duties. So arising out of, and this is my understanding, the hearing on 20 May a proposal was put regarding how to move forward and a record of that is in a letter from Qantas to the unions dated 22 May and if I could jus seek leave to tender a copy of that. This letter was actually also written to the ASU but I have copied the one to the TWU.

PN29

THE COMMISSIONER: I will make that exhibit ASU3.

EXHIBIT #ASU3 LETTER FROM QANTAS TO THE UNIONS DATED 22/05/2002

PN30

MS MAIDEN: Thank you, Commissioner. If I could just refer the Commission to the first three paragraphs where Qantas make reference to a conference before yourself on 8 and 20 May in relation to the return to work of Tony Bayeh and they state:

PN31

The Commissioner was of the opinion that Tony Bayeh should be returned to his normal duties on a certain basis.

PN32

They go on to outline that. They say:

PN33

We will therefore return Tony Bayeh to his normal duties in accordance with our return to work plan and the Commissioner's suggestions.

PN34

And then they go on to say that they offered John MacBean to review the investigations into the four complaints and yourself was of the opinion that this process should involve the delegates concerns about complaint procedures, et cetera.

PN35

So that appears to be the status on 22 May. Then the TWU sought to have the matter relisted which occurred on 30 May which is the more important hearing in terms of these proceedings here today. At this hearing the TWU opposed Mr Bayeh returning to his duties and they brought evidence to support that. The evidence all concerned the incident on 6 May between Mr Bayeh and Mr Dionysopolous. Qantas didn't call any evidence from any witnesses and neither did the ASU and we were an intervener in those proceedings. It was on the basis of the TWUs uncontradicted evidence that the recommendation was made to stand Tony Bayeh down and the Commission made that very clear in the transcript.

PN36

Commissioner, I am new to this matter as I have said and it is difficult for me to say why the ASU didn't call evidence on that day. What I have managed to find out is I believe there may have been a problem with notification of the hearing on that day. We certainly don't say that in the transcript, I will concede, but it was a TWU relisting, the ASU was an intervener. I believe we may have only found out about it at the very last minute. The ASU were definitely present though, Commissioner, Tony Bayeh however was not. At that time lawyers were representing Tony in relation to many of those matters, not all of them, but many of those issues. Certainly neither Tony directly nor his lawyers were made aware of that dispute notification relisting.

PN37

Secondly, Mr Bayeh had cooperated with that Qantas investigation into 6 May incident and he had been exonerated. On the day Qantas did hand up a summary I believe of the outcome of their investigation which did exonerate him. The TWU were appealing the outcome of the Qantas investigation and the ASU really felt it was for Qantas to defend its investigation process not the ASU. Qantas did have in its possession, I understand, would have had, they are normally very thorough in relation to these investigations, witness statements and notes from the person who did the investigation that they could have tendered to the Commission and they did not which was to Tony Bayeh's detriment. Certainly the ASU did not expect Mr Bayeh to be stood down and I think if they had known that they would have taken a different course of action.

PN38

In any event, the ASU would today like the opportunity, subject to how the Commission would like to run things, to call evidence about 6 May incident. Mr Bayeh is here today and is Mr Peter Cavdarovski who is sitting at the back here and they are both willing to give evidence about what happened on that day. The ASU has also asked Qantas to make available three other witnesses and Mr McKenzie has informed me that they have chosen not to make those witnesses available for reasons that he can go into. I would like to say that we find that a frustration of our case which just happens to be very supportive of Mr McKenzie's argument that the matter should be adjourned to most inappropriate. Two of the people called are not operational in the sense that they would be needed to work in this busy Christmas period in relation to Qantas' operations.

PN39

The evidence will show, even from our two witnesses here today, although we would like to have called evidence from everybody concerned, that Mr Bayeh was ill on 6 May and that he had good reason to rest in Mr Cavdarovski's office for a short while and that Mr Bayeh wasn't abuse to Mr Dionysopolous or at the very least that we have conflicting evidence on that point that it isn't clear cut which appeared to be the case from the last Commission hearing on 30 May. Before we go to call that evidence and possibly hear from Mr McKenzie before we do that I would like to just talk briefly about the status of the McBean investigation. As I have said the recommendation from the Commissioner was that Tony Bayeh be stood down pending the outcome of that McBean investigation into those four incidents.

PN40

I think it is worth noting that the four incidents don't include 6 May incident which was the subject of that evidence on 30 May therefore Tony is being stood down pending an investigation by Mr McBean into matters that actually have nothing to do with the evidence that led to him being stood down. The McBean investigation, as I said, arises out of the TWUs decision to appeal the outcome of Qantas' investigations. Mr Bayeh is willing to cooperate with it but it is really the TWUs appealing of the investigations that is leading to that investigation happening and yet it is Tony Bayeh that is being stood down.

PN41

The process for the McBean investigation, which has now been agreed between the parties, says that the recommendations can't include any disciplinary action therefore we would also question the point of Tony being stood down pending the outcome of that investigation when it can't make recommendations of the nature of the penalty that is currently imposed on Mr Bayeh. Most importantly seven months have passed since the Commissioner recommendation that Tony may be stood down and the McBean investigation until last Friday was effectively stalled.

PN42

Now, the ASU as to take some responsibility for the delay in that I understand the very initial reason for the delay was the ASU not agreeing to be bound by the outcomes of that investigation but that has long since ceased to be the case. In August 2002 the parties got together again to try and kick start the process and the TWU objected to the McBean investigation taking place until Qantas reprimanded Mr Bayeh over 6 May incident. I believe at about that time as well they were bandying about the workplace copies of the transcript of 30 May to show that Tony Bayeh had been found to be wrong. There is a letter that I can tender if the Commission would like from Qantas to the TWU that outlines what the TWU said in relation to the McBean investigation. If I could seek leave to tender that.

PN43

THE COMMISSIONER: Exhibit ASU4.

PN44

MS MAIDEN: Thank you, Commissioner.

EXHIBIT #ASU4 - LETTER FROM QANTAS TO TWU DATED 28 AUGUST 2002

PN45

MS MAIDEN: This is the letter to Glen Nightingale of the TWU dated 28 August 2002 from Mr McKenzie and the position of the TWU is in paragraph 4 and as I have just stated on transcript that they wouldn't proceed with the McBean investigation until Mr Bayeh was counselled.

PN46

So, nothing happened, as I understand it, after this August stalling of the McBean investigation until early December when the ASU began agitating for the McBean investigation to get underway again. I mean it is not our investigation as I have said, it is the TWUs appeal but given that our member is the one being affected we began agitating for it to get underway. A meeting was held last Friday 13 December and I have a copy of an email from John McBean that sets out the agreed process. If I could seek leave to tender that.

PN47

THE COMMISSIONER: Thank you.

PN48

MS MAIDEN: Thank you. Might we have - - -

PN49

THE COMMISSIONER: Yes, exhibit ASU5.

EXHIBIT #ASU5

PN50

MS MAIDEN: Thank you, Commissioner. So, as that e-mail indicates we have our next meeting on 13 February with final documentation submission dates being the end of February 2003. That meeting on 13 February is to review documents and program the next stage of the investigation, so it is still at a very preliminary stage in just short of two months time. So the investigation really won't have even begun until at least March 2003 on that basis and possibly later. By that time Mr Bayeh would have been stood down for a period of 10 months.

PN51

The last McBean investigation that the parties took - the parties participated in - took about on year between the incident and the report and there weren't these kind of delays that we've experienced in this case. So, at that pace it would appear that Qantas are proposing that Tony Bayeh would be stood down for well over a year. They have foreshadowed to the TWU that they will want to revisit the situation in mid-February at the meeting on 13 February but the ASU submits, Commissioner, that that just simply isn't good enough.

PN52

We believe that it was never the Commission's intention for Mr Bayeh to be stood down for this length of time and that is just quite simply wrong for Mr Bayeh to be stood down for this or any length of time once the Commission hears the evidence that we have about the incident on 6 May. Tony Bayeh is being severely disadvantaged by being stood down and I believe Qantas actually said it probably best when they were arguing for his return to his former duties at the hearing on 30 May. If I could refer in exhibit ASU1, if I could refer the Commission to paragraph number 1193. This is the submissions of Mr Sek on behalf of Qantas. In paragraph 1192 he says:

PN53

At the same time Mr Bayeh is being significantly disadvantaged. He's been on ...(reads)... to earn overtime during that period.

PN54

Now every time an investigation seems to come up with findings and recommendations, it appears another complaint arises in relation to Mr Bayeh's conduct. There has been a number of complaints that seems to be ongoing and there is no short term end in sight in trying to resolve these particular disputes. They've certainly been borne out.

PN55

Paragraph 1194 says:

PN56

At the same time the outcome of those investigation processes has been that the complaints against Mr Bayeh have not been substantiated.

PN57

Now, the one issue which needs to be taken into account is the fairness to Mr Bayeh in these circumstances. At each and every turn when complaints have been made against him the complaints are found to be unsubstantiated and in those circumstances Mr Bayeh is entitled to expect that he could return to his normal duties in the work place.

PN58

Well, if Mr Bayeh was disadvantaged in May 2002 he is certainly is most seriously disadvantaged in December 2002. Further, and this isn't a minor point, Commissioner, Mr Bayeh's area is being restructured. It's been going on for some months. Crucial decisions in relation to that restructuring are already happening and I believe January is a very crucial month and by being stood down he cannot participate in the proper way that he should be able to participate in that restructuring process, which is from the position of his former duties.

PN59

This will be brief. Just to say this is what we are seeking from today's hearing. Obviously we would still like to call the evidence if the Commissioner believes that is appropriate but on 30 May 2002 when Qantas were arguing Mr Bayeh should return to his former duties it was proposed Mr Bayeh do so under return to work plan and I believe that was drafted by Mr Phil Hardy. I might only have an earlier draft but I do have a draft of that and I'd like to tender that if I could, Commissioner.

PN60

THE COMMISSIONER: Exhibit ASU6.

EXHIBIT #ASU6 DRAFT OF RETURN TO WORK PLAN

PN61

MS MAIDEN: Mr Bayeh remains amenable to return to his former duties under this plan and the ASU would be seeking today that the Commission make a finding that Tony Bayeh return to his former duties under the return to work plan that I've just tendered.

PN62

I don't perceive at this point to call the witnesses, although I will reiterate that I am very keen to do so but I do think that given Mr McKenzie has foreshadowed that he wants the matter adjourned now that we've laid out the basis for our claim, I think it is probably appropriate that he have the opportunity to put to the Commission what his arguments are.

PN63

THE COMMISSIONER: Yes, Mr McKenzie?

PN64

MR McKENZIE: Thank you, Commissioner. I have sent a copy of the correspondence to Ms Maiden in relation to this matter on 18 December. I understand that the registry would have received a copy.

PN65

THE COMMISSIONER: Yes.

PN66

MR McKENZIE: If I could have that marked, Commissioner.

PN67

THE COMMISSIONER: Exhibit QF1.

EXHIBIT #QF1 COPY OF CORRESPONDENCE TO MS MAIDEN SENT 18/12/2002

PN68

MR McKENZIE: Commissioner, I've been made aware that the ASU had notified of dispute, the company contacted the ASU to seek clarification as to what exactly the matter was about. I spoke to Ms Gladys Sharp in the office of the ASU and was advised it was in relation to the return to work of Tony Bayeh. I sought a copy of the dispute notification, having only received a listing from the Commission.

PN69

The ASU following the meeting that we had with John McBean last Friday, 13 December, I sought classification of what our understanding was of the recommendation, following the proceedings of 30 May this year and our understanding of the recommendation is the last sentence in the third paragraph. That whilst the investigation is taking place that Mr Bayeh remain on alternate duties.

PN70

We say in the letter in exhibit QF1 that it was our view that we have one party here which was party to those proceedings on 30 May. That if we are going to proceed and run this matter - in other words have Mr Bayeh return to work - in our view it would be appropriate to either relist the original matter which was C No 2002/1446 or have this matter joined with that particular dispute notification. The matter which was 2002/1446 was actually originally relisted at the request of the TWU and the union was advised that Mr Bayeh was going to be returning to normal duties. That followed his standing down with pay when the complaint in February this year was actually investigated.

PN71

You will recall there was a dispute in February where the company stood down both Mr Ball and the TWU delegate and Mr Bayeh to conduct an investigation into Mr Bayeh's plight. Subsequently there was a 4 hour stop work at the premises. We notified a dispute and also filed an application under section 627 of the Act. That matter was heard and dealt with by the Commission.

PN72

That particular matter then was, as I say, re-listed at the request of the TWU following advice that Mr Bayeh would be returned to work. Commissioner, in a sense the number of matters raised by Ms Maiden have been dealt with in those proceedings, the 6 May complaint, for example and Ms Maiden was right that QFCL was arguing that Mr Bayeh should be returned to his normal duties however, the Commission did recommend that the process which was outlined in these proceedings in exhibit ASU3 take place and as Ms Maiden has pointed out, there are various reasons for delays, including with the ASU and Mr Bayeh, Mr Bayeh being unwell for a period of time being unable to participate in the investigation of Mr MacBean and also, QFCL waiting on a response from Mr Bayeh's solicitors as to whether he was prepared to take part in the investigation.

PN73

Having said that, there was, as Ms Maiden has pointed out, an issue at the end of August in relation to whether the TWU would participate in the proceedings, given the Commission's comments about the 6 May incident and I'll leave it at that. In any event, Commissioner, we have advised both the ASU and the TWU that we would abide by the Commission's recommendation of 30 May and participate in the proceedings, in the meantime Mr Bayeh would remain on alternate duties.

PN74

It is important to note that Mr Bayeh has been off work since mid-June, he has in the last week or so, received a clearance to return to work. I would have to clarify and I couldn't clarify today but it is my understanding that Mr Bayeh would be required to undertake an assessment by Qantas Medical prior to the re-commencement on alternate duties. That was the case I might say, when Mr Baldon was off work for an extended period in 2001.

PN75

In 2001 Mr Baldon was off work for some four or five months and that was perhaps the reason for the delay of the first investigation. That related to Mr Bayeh's Duty Operations Supervisor's report and Mr MacBean issued his report to the parties in March of this year. Commissioner, the other point to note is that there is a time table for going forward with the investigation of Mr MacBean, the parties are planning to meet on 13 or 14 February, I just don't have the note in front of me but it's 13 February I believe.

PN76

There the parties will actually review the progress, as indicated in the e-mail which is exhibit ASU5. Mr MacBean has sought from both unions their positions in relation to the four complaints and also, their position in relation to the QFCL internal processes, if I might call it that. So that investigation is proceeding, Commissioner. In any event, it would be our submission that if the ASU sought to bring Mr Bayeh back to work, in other words, essentially looked at a separate recommendation or subsequent recommendation from the Commission to bring Mr Bayeh back to work, then it would be our submission that all parties should be present in the Commission to discuss that.

PN77

Given that at the time when the TWU were actually notified that Mr Bayeh was coming back to ordinary duties, they actually notified the Commission and went through the disputes procedures, that that would be our submission that perhaps that process would be best followed again to enable the TWU to put their side of the story in relation to that particular matter. Now, there is an argument to say, well, returning Mr Bayeh back to work, it's really a matter for the company and the ASU.

PN78

From the QFCLs point of view, Commissioner, if there is going to be any return to work of Mr Bayeh that we would essentially canvas the TWUs view about impending industrial action, given that the material has been determined or recommended that it follow a process, it would be our submission that the views of the TWU be canvassed in relation to whether there is any industrial action threatened or probable in relation to a return to work of Mr Bayeh.

PN79

In that event, Commissioner, we are in the Commission's hands to a certain extent, we have said that we would abide by the original recommendation of 30 May, we've said to the ASU that we really should have the TWU present in proceedings if we are actually going to change that and let them put their arguments as to why the Commission's original recommendation should be changed. I'll leave it at that, Commissioner.

PN80

Just in relation to the witnesses, again, it would be appropriate in that sense for any further evidence, particularly in relation to, for example, these witnesses to be dealt with if necessary in any proceedings which would involve the TWU. Again, I say that in a sense Mr Bayeh and Mr Kavroski are here to deal with a matter in relation to 6 May, in that sense the matter has already been dealt with, so I'll leave my submissions at that, Commissioner.

PN81

MS MAIDEN: Commissioner, might I make just a brief submission?

PN82

THE COMMISSIONER: No, not yet.

PN83

Sorry, Mr McKenzie, if I could ask you this: why has it taken so long for the MacBean investigation to commence?

PN84

MR McKENZIE: To commence?

PN85

THE COMMISSIONER: Well, we don't seem to be very far.

PN86

MR McKENZIE: I can take the Commission to the particular timing. The recommendation and the proceedings in the Commission were on 30 May, Qantas wrote to the ASU and the TWU on 14 June essentially requesting that the unions provide material in relation to the specific procedural concerns which are outlined in point 2 of exhibit ASU3. We also asked that the unions would accept any findings and recommendations which would arise from that process.

PN87

Commissioner, a date was set for 14 July and subsequent dates were 9 and 12 July and that is set out in correspondence to both the TWU and the ASU on 27 June. We again requested the points we raised in our earlier letter which was on 14 June about procedural concerns outlined in point 2 of the letter which is exhibit ASU3 and also, confirmation that the unions would accept any findings and recommendations.

PN88

Commissioner, we received a letter from the ASU on 19 July that Mr Bayeh was not able to participate in proceedings and he was on sick leave at least until 31 July. We then received a letter from his solicitor on 5 August advising that Mr Bayeh will particpate in proceedings, that was 5 August. The meeting was set with the parties and it was set for 27 August to go through the issues and start the process.

PN89

THE COMMISSIONER: Is that with Mr MacBean?

PN90

MR McKENZIE: That was Mr MacBean. The TWU delegates, as outlined and the letter which is exhibit ASU4 raised a number of issues but particularly, about the counselling issue of Mr Bayeh following the proceedings of 6 May and we sought response from the TWU on that. The matter there, as I understand, the TWU had advised the QFCL verbally some time later and I do not have that date but that the matter in relation to 6 May was resolved in their view.

PN91

The company in early November, 6 November, announced that it was proceeding with a restructure of QFCL middle management. The QFCL was - - -

PN92

THE COMMISSIONER: What date was that?

PN93

MR McKENZIE: It was 6 November, Commissioner, the restructure for the information of the Commission impacts 194 positions which are essentially Leading Hands, Supervisor, Administration and Support positions. And there are 169 positions removed and there are 110 new positions created. Since 6 November Commissioner the QFCL has been involved in discussions with all the four union represented at QFCL in relation to that restructure. As Ms Maiden has said, Mr Bayeh's position is affected and I might say that a number of other positions are affected in all areas of the operation, membership which includes the TWU, the ASU, the LHMU and the NUW.

PN94

Further meetings are planned with the ASU on Monday and with the TWU on 6 January. However, Commissioner the parties, that is both the TWU and the ASU contacted the company and advised in mid November, around that time that they wished to recommence the investigation by John MacBean and hence the date was arranged for 13 December and that process has commenced.

PN95

THE COMMISSIONER: What do you say about Mr Bayeh being adversely effected by the fact that he is not on the job and someone is going to look at his work or at his position?

PN96

MR McKENZIE: In terms of the adverse effect, following the meeting we had with Mr MacBean on 13 December, Mr Bayeh was advised that he should return to work as soon as possible. That he should be aware of what is occurring with the restructure in the workplace and get the information that is being made available to other staff. As I understand it Mr Bayeh is receiving some information that is sent to his home. There is a number of other staff that for example those that are on workers' compensation would be in a similar situation as Mr Bayeh.

PN97

However, in terms of the return to work of Mr Bayeh we would say that he would come to work and perform alternate duties. He is not receiving any less pay than what he normally received. What he may miss out on, and it is acknowledged in transcript by Mr Sett who represented Qantas at the time, was that access to overtime. The ASU have raised that with Qantas following the meeting with Mr MacBean last December.

PN98

As I understand it, it also raised it with the QFCL organisation with relevant management several weeks ago and are looking at appropriate compensation for that. That is being considered. I don't know if it is resolved, that is one thing I didn't get a chance to find out before today. However, as I said in a sense QFCL is in the commission's hands having said that we will abide by the original recommendation.

PN99

THE COMMISSIONER: Yes, thank you Mr McKenzie. Yes, Ms Maiden?

PN100

MS MAIDEN: Just in relation to the point about the TWU Commissioner, after I received the correspondence from Mr McKenzie indicated their belief that the matter should be joined. I contacted in fact Mr Glen Nightingale from the TWU and made him aware of this afternoon's hearing. He indicated to me that he was not available. I therefore faxed a copy of the notice of listing to the State Secretary of the TWU Mr Tony Sheldon with a cover fax sheet indicating the fact that Qantas believed that they had interest in this matter and they might be interested in coming along.

PN101

I didn't hear anything back from them in relation to that. So they were made aware of today's hearing and in relation to whether or not what the relevance is of the TWU to these proceedings, we would submit that it is entirely a matter within the purview of Qantas in terms of management, or it is not a matter anyway that relates to the TWU it is whether Mr Bayeh returned to work. I find it extraordinary that Mr McKenzie makes submissions that perhaps the TWU might want to actually come in here and threaten industrial action that perhaps that we might all just sit up and actually make that effect, Mr Bayeh's rights and entitlements.

PN102

So while we do concede that obviously the matters are related. The commission has before it everything the TWU wanted to put in relation to 6 May incident. There were witnesses that they called on those dates, there is all that evidence before the commission. The facts that have occurred since that time are not in disagreement between Mr McKenzie and I. I don't think the TWU would be able to provide any particularly different version of events. The reality is that barring according to Mr McKenzie's time frame, the ASU and Mr Bayeh delaying the MacBean inquiry in June and July for about a six week period.

PN103

From late August which has been a three months period absolutely nothing has happened and I actually find it incredible too that Mr McKenzie says the TWU all of a sudden requested the MacBean investigation start up again. I mean I called Mr McKenzie on I think my first or second of working with ASU to request a MacBean investigation start and I find it incredible that the TWU had exactly the same thought. It is the ASU I think that have been pressing for the matter to get going and I think if I hadn't made those phone calls nothing would have happened.

PN104

I don't see why the ASU and Mr Bayeh should have their case affected - Mr Bayeh's rights diminish by actually being diligent about chasing that matter up when it isn't even - when it is only a matter we're co-operating with not a matter we're instigating. So Commissioner we would still seek to press to have the matter heard today. We have two witnesses available, there are three more that we would seek to call if the commission felt that additional evidence would clarify things for yourself. The two witnesses we are able to call today are the two main witnesses in our case, about what happened on 6 May.

PN105

It may be that the commission doesn't feel that it is necessary to hear that evidence and can make a favourable finding without hearing that evidence but if the commission was inclined to not make a favourable finding for us we would hope that we would get the opportunity to put that evidence first as Mr Bayeh didn't have the opportunity to put that evidence previously. So we are really in your hands Commissioner as to what you believe the next appropriate step is.

PN106

THE COMMISSIONER: I propose to relist the matter on Wednesday 8 January. How does that suit you Mr McKenzie?

PN107

MR McKENZIE: 8 January, yes is suitable.

PN108

MS MAIDEN: I am sorry Commissioner, but as a part time industrial officer I only work on Thursdays and Friday.

PN109

THE COMMISSIONER: What about Thursday?

PN110

MR McKENZIE: Thursday is suitable.

PN111

THE COMMISSIONER: You will have to make some special arrangements Ms Maiden if the circumstances require it in due course, but what I prose to do is relist this matter together with the TWU matter which is C2002/1446 for 11.30 on Thursday 9 January. The purpose of the hearing will be to hear arguments for and against that, one, the commission rescinds its recommendation of 30 May that Mr Bayeh not be allowed to return to his former workplace and two, that Mr Bayeh be returned to his former workplace forthwith. They are the matters that will considered by me on that day. As I said the TWU will be informed of the resumption of their matter. Until then these proceedings are now adjourned, thank you.

ADJOURNED UNTIL THURSDAY 9 JANUARY 2003 [3.20pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ASU 1 COPY OF TRANSCRIPT DATED 30/05/2002 PN13
EXHIBIT #ASU 2 LETTER FROM QANTAS TO TWU DATED 8 AUGUST PN19
EXHIBIT #ASU3 LETTER FROM QANTAS TO THE UNIONS DATED 22/05/2002 PN30
EXHIBIT #ASU4 - LETTER FROM QANTAS TO TWU DATED 28 AUGUST 2002 PN45
EXHIBIT #ASU5 PN50
EXHIBIT #ASU6 DRAFT OF RETURN TO WORK PLAN PN61
EXHIBIT #QF1 COPY OF CORRESPONDENCE TO MS MAIDEN SENT 18/12/2002 PN68