C2002/1993, Transcript of Proceedings [2003] AIRCTrans 21 (6 January 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

C2002/1993

THE AUSTRALIAN LICENSED AIRCRAFT
ENGINEERS ASSOCIATION

and

QANTAS AIRWAYS LIMITED

Application under section 170LW of the Act for
settlement of dispute (certification of agreement)

SYDNEY

2.40 PM, THURSDAY, 7 NOVEMBER 2002

Continued from 2.5.02

PN233

THE COMMISSIONER: Could have the appearances, please?

PN234

MR G. NORRIS: I appear for and on behalf of The Australian Licensed Aircraft Engineers Association. With me I have Mr William Gamma and Mr Ian Hambly.

PN235

MR D. MILLS: May it please the Commission, I appear for and on behalf of Qantas Airways Limited. To my immediate left I have Mr J Clerke, who is the manager of heavy maintenance lines and on my far left I have Ms V Collins, who is the human resources manager for heavy maintenance.

PN236

MR NORRIS: Commissioner, this matter came before you on 2 May 2002 and involved at that point in time the company's attempts to terminate Mr Gamma's employment in regard to a medical condition, medical grounds. At that time, Commissioner, the parties left the Commission with a clear understanding that there would be some further medical assessment and, hopefully, that could be a bit more specific as to Mr Gamma's capabilities and then at paragraph 193 of that transcript Mr Mills has said:

PN237

I assume we would undertake to do all that in relation to the medical reports ...(reads)... Mr Norris is correct, he has been rehabilitated.

PN238

And obviously if he was not suitable for employment, then that would require some other action. On that day, Commissioner, we were on the clear understanding that the parties would go away. We would go through the process and then when the medical reports were made available we would get a copy of those and then we would have further discussions with the company in regard to whether there was suitable alternative employment for Mr Gamma and then after that exercise, if that was exhausted then the company would have to make a decision. That was referred to in some comments by yourself in paragraph 178 where, in part, you say:

PN239

I understand for this kind of, you know, that they probably examine Mr Gamma ...(reads)... there would be discussions between Qantas and Mr Gamma and yourselves, the ALAEA.

PN240

Well, what happened, Commissioner, was that Mr Gamma did go through some further assessments and some workplace assessment reports were made. They were not made available to the ALAEA. They were then made available to the ALAEA on 25 October when we met with the company and the company advised immediately on that day that they were proceeding to terminate Mr Gamma's employment without any further consultation with the ALAEA or whether he would be suitable for alternative duties or not.

PN241

Commissioner, the documents that were supplied to us on that day, I would like to hand up copies of those if I could, if we could have those marked, Commissioner.

EXHIBIT #ALAEA 2 DOCUMENT FROM WORKRIGHT

PN242

MR NORRIS: Commissioner, the first document there dated the - it is from Workright, an occupational rehabilitation service, who have done an assessment of the job description, I take it, as supplied by the company in regard to the type of work that Mr Gamma would be needed to carry out for different periods of time. We will take issue with some of the parts of the job description as to whether they are essential requirements for a LAME and we will be calling on evidence from Mr Hambly in regard to that, but at the end of the day, Commissioner, the recommendation from the rehabilitation coordinator - that is at page 5 of the fax pages of that document prepared by Paul Gann. It says:

PN243

The rehabilitation coordinator sent a copy of the workplace assessment ...(reads)... whether Mr Gamma is fit to perform these duties.

PN244

Now around about the same time, I take it - that document has a fax heading on it. It was obviously faxed to someone in Qantas on 15 May. The next document in that bundle is dated 14 August 2002. It is from a Dr Bryan J. Stephenson, if you have got that one, Commissioner.

PN245

THE COMMISSIONER: Yes. I will mark that Exhibit ALAEA 3.

EXHIBIT #ALAEA 3 DOCUMENT FROM DR STEPHENSON DATED 14/08/2002

PN246

MR NORRIS: Commissioner, I take it that Dr Stephenson has made his assessment on the information provided to him by the company. We are not aware of what documents were supplied to him, but in essence, Commissioner, that short paragraph there of Dr Stephenson, who says:

PN247

Based on the history and findings I would assess the impairment at 12 per cent permanent loss of use of the right arm at or above the elbow related to the right shoulder injury.

PN248

So in effect what he is saying, Commissioner, is that he has assessed Mr Gamma with Dr Viglione's assistance and the assessment is that Mr Gamma had a partial disability of approximately 12 per cent in his right shoulder. He then goes on to say:

PN249

I note the history of injury elsewhere which could be work related, but in my opinion ...(reads)... at or above the elbow which is work related.

PN250

Commissioner, also attached then to that bundle of documents is another correspondence from Dr Bryan J Stephenson and it is dated 14 August as well. It is to Mr McLellan and this is apparently a more detailed report on Mr Gamma.

PN251

THE COMMISSIONER: I will mark this Exhibit ALAEA 4.

EXHIBIT #ALAEA 4 CORRESPONDENCE FROM DR STEPHENSON DATED 14/08/2002

PN252

MR NORRIS: I just refer you to the last page of that, Commissioner, where he says at the top of the page:

PN253

Therefore more selective duties would be appropriate because of the right shoulder ...(reads)... as well as some loss of some rotation movements related to the right shoulder condition.

PN254

He has obviously made the assessment of the impairment after that document. The last piece of correspondence in that bundle is from a Dr Wayne Viglione. It is dated 20 September 2002.

PN255

THE COMMISSIONER: I will mark that ALAEA 5.

EXHIBIT #ALAEA 5 CORRESPONDENCE FROM DR VIGLIONE DATED 20/08/2002

PN256

MR NORRIS: If we go to the first paragraph, it seems to us from the reading of that obviously he has been supplied with some documentation from the company. It assume it is the Workright assessment report, but I am not quite sure and he notes:

PN257

The duties are in fact working overhead for prolonged periods of time, lifting ...(reads)... if he is not required to do work at or above shoulder height.

PN258

Commissioner, we accept the reports of the doctor. However, we do not accept the assumption by the company that because a person has a 12 per cent disability in one arm that they are incapable of fulfilling their employment contract. This company has a custom and practice of assisting those people who do have some sort of disability and impairment, are an equal opportunity employer so I'm informed, and we are aware that they can't discriminate on the basis of physical disability or impairment, otherwise they may be in breach of course of the anti discrimination legislation that exists in New South Wales. Having said that, we have a very very serious problem for the ALAEA. This matter has been considered by a federal executive and the ALAEA cannot tolerate a situation where a company could terminate an employee purely because they have a minor, absolutely minor disability.

PN259

This company has working in it now and has a custom and practice of making positions available for people or have people working in positions who have greater disabilities. On the evidence that we will present to you through Mr Hambly a lot of those people are people who have suffered non work related injuries, but Mr Gamma has been singled out and discriminated in this matter and in our view because he has workers compensatable injuries. There are other people involved here who have not work related injuries and the company has gone out of their way to accommodate them. So the current custom and practice within the company is that people with some sort of disability are catered for, but for some reason they have singled Mr Gamma out who has a minor disability and a slight physical impairment to not do his work.

PN260

THE COMMISSIONER: The disability that you say is minor, do you accept that that disability are at odds with the requirements of a licensed engineer?

PN261

MR NORRIS: No, not at all, and we will bring evidence from Mr Hambly - - -

PN262

THE COMMISSIONER: So they don't have to do any work above shoulder height?

PN263

MR NORRIS: The fact is that they work in crews and Mr Hambly's evidence will go to the veracity of how their work is carried out and how they cater for these people. The fact is that there are a number of people that can be identified within Qantas who have been treated in a particular manner. Mr Gamma is the only person who is being treated in this manner and on that basis it's discrimination. Commissioner, obviously there will be some great difficulty for the ALAEA to have access to all the personal records of those people who may have suffered some injury in Qantas, but if needs be then we won't have any problem with seeking discovery orders through the Commission if that's necessary for that to be disclosed.

PN264

Commissioner, I must say that the ALAEA executive is of the view that this particular treatment of Mr Gamma sets a grave precedent. It exposes a number of our members to termination and there is a great deal of uncertainty in the work place at this point in time as to which way the company is going on these sort of issues. We see this as a massive shift in the company's custom and practice. It appears to be driven from some area that we're unaware of, that we haven't been consulted about, and if this was the case our federal executive has informed me that they may have to call stop work meetings to discuss the serious occupational health & safety ramifications.

PN265

THE COMMISSIONER: Mr Gamma has been terminated?

PN266

MR NORRIS: He was terminated on 25 October.

PN267

THE COMMISSIONER: On that day that you mentioned, yes.

PN268

MR NORRIS: Yes, Commissioner. He was given a months notice with pay. I must say though, Commissioner, Mr Gamma's financial situation at this point in time is he is severely financially disadvantaged, he hasn't been paid for the past four weeks, he hasn't been paid his termination pay, and that's causing him some difficulty with his current situation.

PN269

Commissioner, we are aware of one of our members, a Mr Ken Hoy, who effectively has one withered arm. He suffered a water skiing accident some 15 years ago. He works in base maintenance and we 're informed that when he returned to work he was given a workplace assessment whereby his peers and leading hands accompanied him in the work that was to be done and that work was in base service in maintenance and a lot of that work is fitting of overhead lockers and working above their head, which Mr Hambly will be able to five evidence on. He has been allowed to continue to work in that capacity for many, many years. There are other people who have been treated in a similar manner.

PN270

Mr Gamma along the way has sought to alleviate his circumstances by applying for a number of positions. I would like to hand up the replies that he has received from the positions that he has applied for over that period of time. It might be appropriate to have that marked, Commissioner. The documents are from Qantas to Mr Gamma, addressed to Mr William Gamma, from various managers.

PN271

THE COMMISSIONER: I will mark it all as one document, I think it's all from Qantas. I will mark that exhibit ALAEA6.

EXHIBIT #ALAEA 6 REPLIES FROM QANTAS MANAGERS TO W. GAMMA RE APPLICATIONS FOR VARIOUS POSITIONS

PN272

MR NORRIS: Commissioner, the position of technical assistant, it's the sixth document in, that position of technical assistant required the qualifications of a trade certificate plus one years experience as a tradesperson. Mr Gamma's qualifications are such that he has been with the company for over 20 years, he is an experienced LAME, he has worked in all capacities as a tradesperson. For some reason in applying for a position that requires one years experience as a tradesman and the salary remuneration for this position that Mr Gamma applied for dropped him from his current salary down to a salary of an approximate rate of about $30,000 a year, which is a huge drop in his pay, he didn't even get an interview for it.

PN273

One would have to ask the question, Why not? Why would a person in Mr Gamma's position who is quite capable of performing that job, why would Mr Gamma or any person with some sort of disability not be afforded an interview? Out of all those positions Mr Gamma assures me he has only had one interview out of all these applications.

PN274

Commissioner, it's our view that Mr Gamma has been treated grossly unfairly and unreasonably. Even if you were to accept the proposition probably put forward by the company that he can't perform the full range of his duties and therefore he's unemployable, but that's not the case. The case is that he is employable, there are a number of positions going within this company that he can fulfil, and it's really only a matter of people being appointed to those positions to take up one of those positions.

PN275

Commissioner, there is no suggestion that work is not available for Mr Gamma. Work is available for him but for some reason or other the company just chooses not to allow him to do it. The company chooses not to provide him with meaningful work. That's through no fault of Mr Gamma. Mr Gamma was performing selected duties in the stores area and there is no suggestion that that work is not still available. All it means is that someone else will come and do it, but Mr Gamma can do that work. It appears that the only bar that Mr Gamma has to doing that work is the company is reluctant to pay him his LAME rate while he's performing that work. However, there is work available for Mr Gamma within the company which would suit his particular physical capabilities.

PN276

We would maintain, Commissioner, through evidence from Mr Hambly, that he is quite capable of performing his LAME duties within a crew environment in heavy maintenance and therefore he is quite capable of fulfilling his employment contract, similar to or equal to other people who are involved in those crews. Without further ado we would like to call Mr Ian Hambly to the stand to provide evidence.

PN277

MR MILLS: Commissioner, I've got to object. One, I had absolutely no knowledge at all that Mr Hambly was going to be brought as a witness until Mr Norris made some representation about it before you. That's the first issue. Two, one would assume that Mr Hambly may in fact have a statement or in effect natural justice suggests that we should be provided with a statement. I certainly, without being able to properly understand what are the questions that are going to be asked, will not be able to properly cross-examine Mr Hambly today. I need to speak to Mr Clerke.

PN278

Can I further say, on what basis or what is Mr Norris seeking, what is the dispute between the parties? That Mr Gamma's been terminated? He has been terminated, that's correct. Mr Norris is taking you to certain passages within the transcript and has failed to take you to other passages in the transcript where the company made no secret of the fact that it would go through a proper and due process. We made that commitment five months ago and made it quite clear on transcript that if we had a record that said Mr Gamma was unable to perform the duties to which he was employed by the company that we would follow our due process and we would terminate him on the basis of medical grounds.

PN279

We have done that, we've made no secret of that, so I have to object strongly to both Mr Hambly being called and secondly, what is it that we're trying to achieve? Is Mr Norris trying to get you to put Mr Gamma back on? We make it very clear, and we'll go to the enterprise agreement which Mr Norris has a copy of, that says that that's not the role of the Commission in this process. That role is undertaken by the Commission under section 170CE of the Act. Make the application under that particular provision. Under this particular provision of the Act in reference to enterprise agreement or certified agreement the Commission does not have, we would argue, the power to reinstate Mr Gamma. The company has a right to terminate. Whether the company's decision is right or wrong is to be determined under a separate application by either Mr Gamma, a solicitor to Mr Gamma, or Mr Norris.

PN280

THE COMMISSIONER: Mr Norris?

PN281

MR NORRIS: I take it, Commissioner, that Mr Mills is making some jurisdictional objection.

PN282

THE COMMISSIONER: Well, apart from the jurisdictional objection, there is the procedural one which, you know, probably if you wanted to call Mr Hambly, good and well. I do not think he should object to that, or he might, but that is a different thing, but I certainly expect Mr Mills to be in a position to cross-examine Mr Hambly and the matter would have to be stood over for him to prepare his questioning on the next occasion, which delays the matter, but that can only be fair.

PN283

In your letter to the Commission which was c.c. to Mr Mills it talks about the termination of Mr Gamma and to seek the re-listing to enable the parties to determine whether there is any scope for satisfactory resolution. There is nothing apparent in that that suggests that we must somehow proceed down the path of what might be called an arbitration of the matter and the parties were going to come in with all guns blazing with all their material. I apprehend that if Mr Hambly is heard and then Mr Mills delays cross-examination to another time, Mr Mills may also then say, "There are also a few other witnesses that we would like to call". I mean that is the other thing. He has been unaware of witnesses being called. He may very well have other people that he would bring along to tell me how unsatisfactory it is to have people who are not fully fit doing LAME work.

PN284

I mean it is still in your hands. Whether you want to call Mr Hambly today or not, let us just leave it to one side, but Mr Mills, can I just ask you what do you want to say in response, leaving aside the calling of Mr Hambly.

PN285

MR MILLS: Generally?

PN286

THE COMMISSIONER: Yes. Well, Mr Norris has made a number of points as to why Mr Gamma could be still utilised. It is unfair that Qantas did what it did because he could be well and truly used, utilised. He has also made the point that he has been badly treated because he is a workers' comp person rather than another type of injured person. What is your response to all of that?

PN287

MR MILLS: I would start by saying I would just like to make sure Mr Norris has finished his general submissions. Even if he has not, he may have more he would like to conclude with and I am happy for Mr Norris to finish. If Mr Norris has finished, then the company clearly has a view that it wants to present to the Commission in relation to this matter. So I really leave it to Mr Norris at this stage in that regard. If he is finished I am happy to speak.

PN288

MR NORRIS: Commissioner, I think it would be appropriate to determine whether Mr Mills is seeking to make some point of jurisdictional objection.

PN289

MR MILLS: It is something like the chicken before the egg.

PN290

THE COMMISSIONER: What exactly is it that you seek that the Commission do?

PN291

MR NORRIS: Commissioner, our view is that the employer is obligated to make meaningful work available for Mr Gamma. He is quite capable of performing that meaningful work. We say that meaningful work is available and we say in relation to his partial disability that he is quite capable of carrying out that work. Now the issue that we come to the Commission here with today in principle is whether an employer should make work available that it has to someone who has a minor impairment.

PN292

THE COMMISSIONER: Well, it is a bit more than a minor impairment, isn't it?

PN293

MR NORRIS: I think it is a matter of relativity.

PN294

THE COMMISSIONER: I am sorry?

PN295

MR NORRIS: It is a matter of relativity, Commissioner.

PN296

THE COMMISSIONER: Well, except that you - - -

PN297

MR NORRIS: We are talking about a 12 per cent lack of mobility of the right shoulder.

PN298

THE COMMISSIONER: Yes, but the doctor says if he is required to work, to lift up to 10 kilos overhead he is not able to do his work.

PN299

MR NORRIS: The fact is, Commissioner, there are a number of people in Qantas who are LAMEs who cannot do that anyway for a start and there are a number of people within Qantas who the company has allowed and provided work for who have greater disabilities than Mr Gamma and on that basis, if they act any differently to Mr Gamma, they are discriminating against him.

PN300

THE COMMISSIONER: Yes. All I am saying is, I am just picking up about the word "minor". I do not know if it is minor.

PN301

MR NORRIS: Well, Commissioner, sorry, if the company determines that a person who has one arm and who is a LAME can carry out to their satisfaction the full extent of his duties, which is obviously laid out here and I would take it that that physical disability of having the whole arm gone or withered, as in the case of Mr Ken Hoy, then that is a far greater disability, whatever percentage you might put on it, I would say that arm is 100 per cent disabled; that shoulder is, whereas what we are talking about here is whether the company should then make work available for someone, the same work available for someone who has a lesser disability of 12 per cent because it is grossly unfair and unreasonable to disadvantage Mr Gamma because he has a 12 per cent impairment compared to someone who has a 50 per cent impairment.

PN302

Now we are prepared to bring evidence on other people who are in similar situations, but really it is the job of the leading hand LAME on every shift to take into account the abilities and the capabilities of those people on his crew and say, "Okay, you do this work tonight; you do this work tonight" or "You do this work today; you do this work today". When they do fuel tank work, for instance, Mr Gamma was the only person on the crew who did all the fuel tank work and confined spaces work because he is of slight stature and he is a smaller person. It was easy for him to get into those spaces. There were other people on that crew, and Mr Clerke did work with Mr Gamma at different times, who chose not to go into those confined spaces for one reason or another, whether it was for claustrophobic reasons, whether it was because they could not fit, but the fact of the matter is the leading hands, like Mr Hambly, allocate the work accordingly.

PN303

Now if there is heavy overhead locker type work to be done, they invariably get the taller blokes to do it, people to do it, who have some strength. They do not really allocate shorter people to do it because it is too hard to do. So I mean it is really a matter of horses for courses on the job on the day and that is the way it is.

PN304

We are quite happy for the Commissioner to visit the workplace and see exactly what these people do and see how the different and varying physical sizes of people are selected for certain jobs, but the fact is that Mr Gamma can perform overhead work. He cannot perform it for prolonged periods of time. What they are saying is that there is a risk to him of an injury re-occurrence. There is also a risk of injury re-occurrence or injuries for different people in the workplace every day, depending on the work they do.

PN305

We are saying that Mr Gamma should be treated no differently than other people. That is the issue at this point. The issue in principle here for the union is can the company turn around and not provide meaningful work for people who are capable of doing that work albeit not all of it and is the issue the ALAEA faces and that is why our federal executive is saying me, as the industrial officer, if this is the case then we have a serious occupational health problem. We need to find out what direction Qantas is heading in the future in regard to our members and if that is the case we need to seek direction from our members as to what we will do about it.

PN306

THE COMMISSIONER: Yes, Mr Mills?

PN307

MR MILLS: Well, Commissioner - - -

PN308

THE COMMISSIONER: Do not worry about the jurisdiction and Mr Hambly, but what do you say about the fact that if - well, how realistic is it or how operationally possible is it for the company to operate on the basis that some people may not be able to do everything all the time, but within a group situation they could do it and, much how that might not be at the optimum, the fact is you do, they say, you in fact do that and, to your credit, you do carry people who have shortcomings, but overall the work gets done and everyone is happy. I mean that, I guess, is the broad position of Mr Norris and he says, well, why not on this occasion was not that examined.

PN309

MR MILLS: Commissioner, it is probably appropriate for me, before I get into any lengthy debate about whether you have or whether the Commission has any right to intervene in this matter in its current form, because we will leave that aside. You have asked me to do that, but it is a very strong view that we have. There is nothing in the enterprise agreement that allows you to do that and we continue to say that 170CE is the appropriate application, but I think we need to be very very clear about the process the company has taken and the transcript from the proceedings before you on 2 May where we went into great detail about what had occurred and the history behind Mr Gamma's injury.

PN310

I mean Mr Gamma has had right shoulder surgery in the year 2000. He has then had on numerous occasions has been on light duties. At one stage he was declared to be fit again for work. He was then put back to work as a licensed engineer. It was then he re-injured himself. So he has effectively been on light duties for some time. The real issue here and this is where Mr Norris gets a little bit excited, is that what we took you to and in fact I think you will find its QF1. QF1 was a letter that Mr Norris wrote to the company on 19 June 2001. On 19 June, the reference - and I'll just read straight from the transcript. It is paragraph 90 where Mr Norris said:

PN311

Mr Gamma's specialist is Mr Wayne Viglione, orthopaedic surgeon of 4 Short Street, Kogarah, and if the company wishes opinion from him in regard ...(reads)... the appropriate channels.

PN312

Now, if you do recall when we were last before you as well, Commissioner, we took you at some length to some of the medical reports that Mr Viglione had provided to the company at the beginning of this year where he had initially said that Mr Gamma would not be fit to perform the duties of a licensed engineer.

PN313

He then, when asked by IRS, who are a rehabilitation provider, as to whether they felt whether in Dr Viglione's opinion he could perform the duties of an aircraft engineer I note that Mr Norris made a comment there about the fact licence as opposed to aircraft but I think we know what they're talking about. Dr Viglione again said that in that report but no he did not believe that Mr Gamma could perform those functions.

PN314

You do recall, we then had a situation where there are two conflicting medical certificates that were presented at the time in which we said to Mr Gamma we're going to terminate your employment on the basis of medical grounds in accordance with our standard policies and procedures. I will get to the issue of the policies and procedures at some stage during my submission.

PN315

The initial medical certificate said that he'd examined Mr Gamma's knee and he was right for duty. Now, as far as we know whilst there may be some injury to Mr Gamma's knee it is the shoulder that concerned us. A couple of days later we get another medical certificate. Well that issue has been rectified and Dr Viglione says Mr Gamma's shoulder is okay he needs some physiotherapy work and he's right to perform his duties as a licensed engineer. So, if you do recall, we noted there was some confusion in the certificates. We made it quite clear that we would undertake a further examination of Mr Gamma, that we would get medical reports, and in particular we relied very much on Dr Viglione and in fact I think you will find, Commissioner, that at paragraph of the transcript. At paragraph 183, at the last sentence there:

PN316

In the end Dr Viglione would be the one whose opinion worth something both to you and to the company.

PN317

I understand that would have been the assessment that you made from hearing what the two parties had to say. The company is acutely aware of the relevance that a treating physician has particularly a specialist. It is all right for the company to send an employee off to the company's own doctor, generally that doctor does not have a history with that particular patient, has no personal record with that particular patient and in many instances it is wise if you take a very close look at what the treating physician - and in this case the orthopaedic surgeon - has to say about the employee's injury.

PN318

Now, Mr Gamma has been on sick leave, paid sick leave I understand, from 20 May 2002 up until the date upon which his employment was terminated. There may be some conjecture about that. The company makes his point quite clear. If for a particular point in time which I think there may be some confusion over the last couple of weeks, if Mr Gamma has an entitlement to that sick leave and has not been paid through whatever fault of ours, then he is entitled to that sick leave.

PN319

We make that point on the basis that it is an entitlement he has to have. If he hasn't used it all then he's got that entitlement. I also note that Mr Norris makes a comment that he hasn't received his termination pay. If that's a fact, well that's a mistake that we have made and of course he's entitled to his termination pay. Of course he is entitled to any outstanding long service leave, any outstanding annual leave that he may have. That's his statutory entitlements and if we haven't made those, then that is a fault and we must make preparations to that effect.

PN320

The picture that Mr Norris is trying to paint for you, Commissioner, is that we as a company have acted capriciously. We as a company have acted poorly. Mr Gamma has been on sick leave. He has not been at work since 20 May 2002. Now, he has reasons for that, that's not an issue before us at all. An employee has a certified illness and pay the sick leave that he has owing to him.

PN321

We asked him to attend on two separate occasions an appointment with Dr Stephenson. He did not attend. We had to cancel the appointments. It cost us $1,000 each time for cancellation fees. Now, there's a further appointment with Dr Stephenson and he sees Dr Stephenson. He then sees Dr Viglione. Now this is the key issue here. Dr Stephenson himself says that because of the heavy repeated lifting and overhead work of the upper limb that he would not be able to perform those duties.

PN322

The key issue is Dr Viglione's report. Dr Viglione's report at ALA5 is clear. He is not able to perform that work. Now, what is the company going to do? Does the company say well we ignore the report of Dr Viglione, you can go back and do the duties as a licensed engineer and we place ourselves, the company, at significant risk, as we do for Mr Gamma. He is not fit to perform those duties. We have his own treating doctor making that point and this is consistent with the point that he has made on numerous occasions over the last 12 months save for those two medical certificates that were somewhat conflicting in the way in which they were presented.

PN323

So on that basis the company says - and when the matter because no doubt as Mr Norris has told you the ALA executive is very upset about this matter, they will probably take it to the Commission under section 170CE if it gets that far, because there is another point that we want to make as a final point. We have all the evidence that we made it clear quite we were going to achieve. It's taken us 6 months to do that. Why has it taken us that long?

PN324

The two sessions that Mr Gamma did not attend with Dr Stephenson. When we advised Mr Gamma that we have the report of Dr Viglione on 20 September 2002 he advised that he could not come to Sydney until it coincided with an appointment he had with his psychologist because he couldn't afford the fare to come up from where he lives. He's on the South Coast.

PN325

The company continued to apply his provisions in accordance with the enterprise agreement. Has the company acted without reason? Has the company acted without due consideration? The company has taken its time. The company has waited until Dr Viglione in particular presented us with a report about his fitness. That report was presented on 20 September 2002. There have been no other reports from Dr Viglione to that effect. Dr Viglione makes this statement after seeing inherent requirements of the job. He knows the history of Mr Gamma. He's the treating surgeon. The one that Mr Norris referred us to on 19 June 2001 we act in accordance with that advice and on the basis that the treating doctor, be it surgeon, be it practitioner, is the person who understands the personal history of the individual. Dr Viglione is Mr Gamma's surgeon, he's not his consulting physician, he is his surgeon.

PN326

Now, Mr Norris has really had a big swipe at the company in relation to the manner in which it has conducted its rehabilitation policy. Is there work for Mr Gamma? There may very well be work for Mr Gamma in a support role but there are also standard procedures when it comes to the re-employment of individuals and an employee has every opportunity - and Mr Gamma has had that opportunity for a long period of time. We could successfully argue that he has had that opportunity since at least the commencement of this year. Certainly throughout most of last year.

PN327

Now, we note that he's made applications. I can't attest to reasons why Mr Gamma was not successful in obtaining employment in those positions. That was not a sort of issue that I have the knowledge to provide but one would assume that it was on the basis through a proper merit selection process that any employee has to undertake before they can be successfully redeployed into a permanent position. Not into a rehabilitation position which is a position that Mr Gamma was in, which is there for the purpose of providing Mr Gamma with the opportunity to undertake work whilst he's being rehabilitated. It is the standard policy and procedure put forward by this company.

PN328

He had numerous opportunities to apply. He applied for positions. He was unsuccessful. It is a merit based selection process. Those people make those assessments on the basis of the people that they also have to consider and one can only assume that the employees who went for these positions had the appropriate skills that the people who were selecting for those positions required. We don't create positions for people on a long term basis where they cannot perform the job for which they were originally hired by the company. We're not in a position to carry people for any longer than we have past the 12 month period.

PN329

In fact Mr Gamma's employment history will show that he was on rehabilitation for a far longer period than 12 months because there were times when he looked like he was going to get closer to be able to return to his former duties and that was the company's priority, rehabilitation to the duties for which you were employed. In the event that you cannot be rehabilitated you have the opportunity to seek redeployment and that redeployment is done on the basis of merit. It's not done on the basis there's a job down here, let's give Mr Gamma a job. We don't have that luxury because if we do then everybody else is going to make a further complaint about the fact that it's not a merit based selection process.

PN330

So the company has acted well and truly in accordance with its policies and procedures. It accords with its responsibilities in the contract of employment that it has with Mr Gamma. It has not acted capriciously. It has not moved on Mr Gamma. It has allowed Mr Gamma the flexibility in the sense of taking his sick leave when he had certifiable sick leave. We have made it quite clear that in the event that he may not have received his benefits, because we understand there may be an issue about whether he still has an entitlement to sick leave on the basis that he may have used it all, then we'll pay him what he's entitled to. We're not sure about the issue of his termination pay but if it hasn't been paid well of course it should be paid.

PN331

We're not making an issue for Mr Gamma about anything other than the fact that we have a report from Dr Viglione who makes it quite clear to us that to put Mr Gamma back into his role as a licensed engineer we do so against sound medical advice and against our own knowledge that he is not fit to perform those duties. Now, Mr Norris has gone to some length about the fact that he wants Mr Hambly to come forward and he wants Mr Hambly to tell you what actually happened. We're not in a position to be able to respond to that today as we've made quite clear. But should we even get to that point we will also seek to call evidence that suggests that these are key roles that an employee must perform and more importantly that we as a responsible management group do not place people who are not cleared to work in a particular area to perform those functions into that area. We just don't do that. It's a complete breach of any occupational health and safety legislation that we may have.

PN332

Fundamentally there's a couple of points I'd like to make in conclusion to the court. No doubt Mr Norris will want to get up and have say and that is this. We have made it quite clear in correspondence to Mr Norris today that he can avail himself or he and Mr Gamma can avail themselves of an internal appeal in accordance with the company's policies and procedures. Now, in doing that we will not - if that appeal determines that Mr Gamma will not be reinstated through the internal appeal then as far as we're concerned should Mr Gamma advise the ALAEA that he wants to make a further application under section 170CE we say that the 21 day period commences from the date upon which the decision on the appeal is presented to Mr Gamma and his representatives.

PN333

Mr Gamma has been terminated since 25 October. The 21 days we say hasn't started yet. There's an internal appeal process that Mr Norris has asked for. Let that matter be heard. If that matter is unsuccessful then they avail themselves of section 170CE of the Act. Now, I'm happy to have a debate about whether this is the appropriate matter or the appropriate section of the Act upon which this matter can be brought to you because I think you will find, in fact I don't think you will find, I know that you will find that there is nothing in the enterprise agreement that allows the Commission under section either 170LW or section 99 to reinstate the employee once the decision to terminate has been made.

PN334

The decision to reinstate should it be made is best left to an independent member of the Commission who hears the matter under section 170CE and were an independent - Commissioner, I don't make any reference at all to yourself, the process is more correctly followed in that forum, may it please the Commission.

PN335

THE COMMISSIONER: Yes. Mr Norris?

PN336

MR NORRIS: Commissioner, if I deal with the medical assessments first. It's quite clear that the medical assessments at the end of the day after we've been through all this process, and it has been quite lengthy, the medical assessments say that Mr Gamma can perform his duties as a LAME but there are some duties that he can't perform. It's as simple as that or there are some duties he can't perform for prolonged periods of time. Now it will come back as to whether it's a custom and practice in Qantas or a work practice in Qantas for people to actually do prolonged work overhead for long periods of time because I'm informed that actually they only do overhead work for short periods of time because they can take a break whenever they like. The issue in principal is still that someone has been assessed as having a very slight partial disability and the question is whether that should effectively give the company a valid reason to terminate an employment contract.

PN337

We say it doesn't on past custom and practice because if they do adopt that stance that's going to create larger industrial problems. It will also create, Commissioner, a great deal of uncertainty in the work force as to whether they should perform any work at all for the fear of having some sort of disability happen to them where they might lose their position which would be an untenable situation for both sides. I just have to clear up a couple of things in regard to Mr Gamma's sick leave. It's our understanding that he has exhausted his sick leave.

PN338

It's also our understanding that he's on paid sick leave due to another condition which there is some argument about in other jurisdictions in regard to the cause of that. A workers compensation claim has been made for that and it's subject to an appeal. Now, Mr Mills made the allegation that Mr Gamma didn't turn up for two medical appointments. There's very good cogent reasons for that. Firstly, the initial appointment with Dr Stephenson, Mr Gamma was informed on the day after by the company of an appointment they'd made for him the day before. Now, Mr Gamma lives at Ulladulla which requires some four hours travel.

PN339

At this point of time they're not in a very good financial position, so he's travelling by bus to get to these things and secondly, on the second appointment that was made he informed the company that he couldn't make it on the day and informed Dr Stephenson because he had a workers compensation hearing on that day. He subsequently attended the next appointment that was made for him and we negotiated that with the company to sort that problem out and I had a discussion with Ms Collins about that. So, as far as we were concerned it wasn't an issue. So, for Mr Mills to get up and make some sort of point scoring about that today is quite inappropriate.

PN340

Thirdly, the company made an appointment for Mr Gamma to see a consultant psychiatrist in regard to his latest situation. The company gave Mr Gamma a time of 2.30 and when he rocked up to the psychiatrist at 2.30 they told him no, the company had made the appointment at 10.00 am and they sent him home all the way back to Ulladulla. Mr Gamma is doing all this out of his own pocket. He hasn't been paid for attending these things.

PN341

THE COMMISSIONER: That will all be fixed.

PN342

MR NORRIS: Well, I hope so.

PN343

MR MILLS: He's been paid sick leave to - he's been paid as if he was at work but sick leave. I mean he's been paid twice.

PN344

THE COMMISSIONER: Those aspects aren't why we're here, are they?

PN345

MR NORRIS: They aren't, Commissioner. It goes fundamentally down to the principle of whether the employer who has a custom and practice of providing meaningful work for people with partial disabilities shouldn't apply that same custom and practice to Mr Gamma.

PN346

THE COMMISSIONER: Mr Norris, has Mr Gamma lodged that internal appeal?

PN347

MR NORRIS: We lodged the internal appeal this morning.

PN348

THE COMMISSIONER: What is he doing about section 170CE?

PN349

MR NORRIS: Commissioner, I did have some discussions with Mr Mills and we take in good faith that there will not be any objection to the 21 day period coming off from here. However, we do have a problem and I raised that problem with the Commission in transcript in our first submissions.

PN350

There is an implication in regard to the way the certified agreement works and the way the Act works in regard to that and, in particular, the power of the Commission in regard to a disputes procedure where unfair dismissal provisions are invoked within the certified agreement. Now the Qantas EBA4 laming program has a provision for unfair dismissals to be referred to the Commission. Within the EBA4 as well the dispute settlement procedure basically gives the Commission the power of private arbitration and probably the real question is to whether section 170HB of the Act precludes us from making a 170C(e) application because of an adequate alternative remedy available which is through the certified agreement procedure. We may be precluded from a 170C(e) application.

PN351

THE COMMISSIONER: But that is not the internal appeal, is it?

PN352

MR NORRIS: No, that is not the internal appeal, but I was just addressing that point that Mr Mills made in regard to whether we should make a 170C(e) application or not. So we have some difficulty with that.

PN353

THE COMMISSIONER: Well, the problem with going down - are you saying that under the certified agreement there is jurisdiction for the Commission to arbitrate the matter?

PN354

MR NORRIS: We believe so; albeit it will be a private arbitration in the Commission. What may help the Commission is the CFMEU and Castrol - - -

PN355

THE COMMISSIONER: Look, I have not seen the cases about what private arbitration means and their effect, but where is it - where is this thing? I have got the disputes procedure; I have got the EBA4.

PN356

MR NORRIS: You have got EBA4, Commissioner, in front you. It is paragraph 4.

PN357

THE COMMISSIONER: Yes.

PN358

MR NORRIS: Did you want me to read the, Commissioner?

PN359

THE COMMISSIONER: Well, I have got it.

PN360

MR NORRIS: Yes, Commissioner, essentially it seems to us that the certified agreement puts an estoppel on anyone raising a jurisdictional objection for a start.

PN361

THE COMMISSIONER: Yes, but - - -

PN362

MR NORRIS: And then it says:

PN363

To the extent necessary to do so the parties are therefore committed ...(reads)... if necessary on matters contained in this agreement.

PN364

THE COMMISSIONER: Yes, but it starts off:

PN365

The parties agree that any matter contained in this agreement shall be processed.

PN366

Now is the dismissal of somebody contained in the agreement?

PN367

MR NORRIS: Yes, Commissioner.

PN368

THE COMMISSIONER: Right. That is what I was asking.

PN369

MR NORRIS: And Commissioner, that is in clause 3.6 and 3.7. It is in the annexure, part C General Conditions.

PN370

THE COMMISSIONER: Yes, okay. What do you say about that, Mr Mills?

PN371

MR MILLS: Well, Commissioner, I don't think the enterprise agreement - we have appeared before you on a similar matter in the past and, to be quite frank, there is nothing at all, nothing at all, in what Mr Norris takes you to that precludes the company from terminating an employee.

PN372

THE COMMISSIONER: No, it does not preclude.

PN373

MR MILLS: That's right, but more importantly, what Mr Norris has failed to take you to is he takes you to stage - he has forgotten to take you to the other fundamental investigation discipline and grievance procedure, which is at clause 31 or part C of EBA4 which I think he made reference to.

PN374

THE COMMISSIONER: Yes.

PN375

MR MILLS: Where he says - in particular he take you to 1.5 and it says that any disciplinary action shall include dismissal. We say that in relation to the disputes procedure at 31 and the disputes procedure that Mr Norris refers to, that the Commission does not have or does not have the power within this matter to determine under this particular section of the Act whether the dismissal is harsh and unfair and if we are going to have a debate about that then the company is going to want to bring submissions to that effect and we are in a position to do that today.

PN376

THE COMMISSIONER: At first blush it says:

PN377

The parties agree that any matters contained in this agreement shall be processed.

PN378

Right and by the way that the agreement seems to add Annexure C, part C, whatever it is, it seems as if - yes, part C General Conditions of Employment - it seems as if - - -

PN379

MR MILLS: Well, I think we need to look at clause 3.7 in particular.

PN380

THE COMMISSIONER: Where is that?

PN381

MR MILLS: Followed by part C, which says:

PN382

Subject to the provisions of the Workplace Relations Act 1996 ...(reads)... should be dealt with in conformity with clause 29, Settlement of Disputes and Disagreement.

PN383

And I have taken you to that. Now Mr Norris is trying to in a sense make a case for himself and what he is trying to put to you is that by making reference to clause 3.6 and 3.7 you have to tie that back to clause 29. They don't act independently of each other. I mean the history of the whole enterprise agreement was the company agreed to place the award into the agreement.

PN384

I just want to finish by saying the company wants to reserve its position in relation to jurisdiction in this matter should you determine that you believe that the Commission has jurisdiction in this particular instance, but I say it, and I couch it quite carefully, because I don't want the ALAEA to get the impression that the company is running a jurisdictional argument generally about the application of the agreement because that is not our intention. If it was a matter that pertained to the operation of the agreement, then I think you would find that we would be limited by the nature of the clause that Mr Norris taken you to. I just want to make that quite clear because that in a sense would be a misconception.

PN385

We say that where Mr Norris has taken you in relation to clause 4, the dispute settlement procedure, that is where the Commission is asked to determine the agreement and its application. We say it is not intended to preclude the company from exercising its fundamental legal right, which is to sever the termination - which is to terminate an individual's employment where it believes it has grounds to do that.

PN386

We simply state quite clearly we want to be heard on jurisdiction if you determine that you may have that on this particular matter and this particular matter alone, not in the general application of the agreement itself. We say you need to see and look at the way in which that particular provision was established and in particular how it relates to clause 29, which I took you to, but more importantly, we want to make it quite clear that this application or any application for the reinstatement of Mr Gamma, should the internal appeal be unsuccessful, is best addressed under section 170C(e) and, furthermore, as we made quite clear when we said this to Mr Norris, both verbally and I made it quite clear when I stated it publicly, the 21 day period for that application to be made commences from the date upon which the determination of that appeal, if it determines that Mr Gamma will not be reinstated, the 21 day process takes effect from the date upon which that appeal is handed to Mr Gamma and his representatives.

PN387

MR NORRIS: Commissioner, if I may, what Mr Mills has raised as another concern is that if it was the case that the company can terminate someone while they are before the Commission in a dispute over whether medical work shall be made available for them, we believe there would be some difficulties in the section 298K and L. Because Mr Gamma has in effect the benefit of an agreement, he is subject to a dispute through the procedures of the agreement. That's been before the Commission - it 's in hearing - yet the company decided to go and terminate the person because he is the subject of that dispute.

PN388

MR MILLS: I've got to object, Commissioner - - -

PN389

THE COMMISSIONER: No, that's all right - yes?

PN390

MR NORRIS: We would be looking at, if that was the case, the company wouldn't go down that path, we would have to investigate those areas as well, Commissioner.

PN391

THE COMMISSIONER: Thank you, Mr Norris. I don't propose to do anything today for this reason. I don't propose to hear Mr Hambly, although he probably has got important evidence to give, but if he is to give evidence then it should be done properly and perhaps in the form of a witness statement circulated to the other side, and the other side of course being able to circulate their counter to the ALAEA in due course.

PN392

It may be that the certified agreement does contain within it the ability for the Commission to arbitrate on the dismissal of Mr Gamma, or at least to make appropriate orders on the basis of some of the things in the agreement, including that it says that Qantas will not dismiss somebody harshly, unjustly or unreasonably. They're words referred to, so if in fact that does occur then I would have thought it's possible that the Commission has the power to deal with that matter, being a matter referred to in the agreement. What remedy comes out of that is probably unclear.

PN393

There is an advantage, of course, in going down that path for an applicant that wins in that it may be that there is no six month cap to compensation, there may not be any restriction as to the sort of orders that the Commission might give, whereas under the 170CE path there are restrictions. Certainly I think Mr Mills is right; you can't have both. I think that therefore the Association needs to think what its next step should be. First of all I understand there is an internal appeals process which in my experience doesn't take that long to get up and running and the outcome known, and that might clarify the situation for all concerned. If on the other hand the ALAEA wishes to progress the matter further then it can go down the 170CE path.

PN394

Mr Mills has already indicated the company's attitude to any extension of time bar that they would raise, they've indicated what their position would be, and in some ways these proceedings here are evidence of the desire of the company to settle the matter. They certainly haven't just forgotten about it so I'm sure the extension of time issues, if it should arise, will not be a damning one for the applicant, so you might choose to go down that path. If on the other hand the union decides to chance its arm and pursue the dispute or a resolution of the dispute pursuant to section 170LW then so be it, but I predict that there will be an argument that in fact that should not occur for jurisdictional issues.

PN395

So there is first of all the jurisdictional hurdle and then if you get over that then there is just the merit argument which presumably would have been dealt with under 170CE, but as I said, there may be different outcomes possible under LW as opposed to the 170CE. You might explore that or consider that. I don't propose to do anything today except adjourn. It doesn't seem as if the company is in the mood to change its mind, Mr Norris, and the only way they would change their mind I guess is if they somehow were happy to receive an order from the Commission or a position from the Commission, but they just don't accept that they should do so.

PN396

I don't take offence at that, they've made their decision, they think they're right and if someone is to interfere with that or seek to change it then what they're saying is they're happy to have it done through the appeal process or through 170CE. If push comes to shove they would have to respond to 170LW but they're certainly not going to this afternoon reinstate Mr Gamma. I think we can only leave it to see how developments go and as I said, if it has to come back before me under LW then we can predict that there will be a jurisdictional argument.

PN397

Let me just make one comment - I hope it doesn't indicate my attitude to the merit of Mr Gamma's position - but I must say, Mr Norris, your organisation seems to have a commitment to aircraft safety, higher even I would have thought, than even Qantas. I'm not belittling Qantas. Qantas has a very high commitment to safety of its aircraft and your organisation seems to have an ever better record of coming out and making necessary statements and the importance of trained and competent LAMEs that make sure that every bolt is affixed properly, etcetera, etcetera.

PN398

All I can say is there are always dangers in promoting an argument to say, well, we're happy to carry people in certain circumstances, if the rest of the crew is happy to do it, why can't it be done. It seems to me that may fly in the face of the sort of very strong status that LAMEs seem to have in the community that they won't compromise on safety. They're just matters that you might have to consider. That's not to say Mr Gamma doesn't have an argument and that would obviously be developed, but again, given the doctor's statement, I also am a bit concerned, not only myself but perhaps the Commission generally would be concerned in saying to Qantas, well, you engage the person anyway and trust that his leading hands, people like Mr Hambly, don't direct him to do things that he's supposed to not do, because if he ends up doing something that's contrary to what Dr Viglione says I can see Qantas getting itself into all sort of problems. Whether leading hands have given the wrong directions or not, they're not going to be the ones that are subject to some serious ramifications.

PN399

So, I think it is - unfortunately the Association represents people in very critical areas where issues of safety and the competence of their people is really foremost and any suggestion that that can be somehow compromised or that the Commission will second guess the company's following of doctor's orders and its own policies I think is, you know, it may be somehow fraught with some difficulties. But in any case they're all very nice words. They're probably not going to settle the matter but I just suggest the matter should now proceed hopefully through the internal process.

PN400

If that doesn't settle the matter then if you choose to go down the 170LW path, Mr Norris, we will relist the matter possibly for programming because of the complexities of the jurisdictional question but in any case that is what we will end up doing. On that basis these proceedings are now adjourned.

ADJOURNED ACCORDINGLY [3.55pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ALAEA 2 DOCUMENT FROM WORKRIGHT PN242
EXHIBIT #ALAEA 3 DOCUMENT FROM DR STEPHENSON DATED 14/08/2002 PN246
EXHIBIT #ALAEA 4 CORRESPONDENCE FROM DR STEPHENSON DATED 14/08/2002 PN252
EXHIBIT #ALAEA 5 CORRESPONDENCE FROM DR VIGLIONE DATED 20/08/2002 PN256
EXHIBIT #ALAEA 6 REPLIES FROM QANTAS MANAGERS TO W. GAMMA RE APPLICATIONS FOR VARIOUS POSITIONS PN272