C2002/1446, Transcript of Proceedings [2003] AIRCTrans 217 (24 January 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

C2002/1446
C2002/6115

QANTAS FLIGHT CATERING LIMITED

and

TRANSPORT WORKERS UNION OF AUSTRALIA

Notification pursuant to section 99 of the Act
of a dispute re indefinite stoppage of work at
the company's operations at Mascot

AUSTRALIAN 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

11.35 AM, THURSDAY, 9 JANUARY 2003

PN1

THE COMMISSIONER: Yes, could I have the appearances please?

PN2

MS E. MAIDEN: If it please the Commission, I appear for the Australian Services Union, and with me, MR T. BAYEH.

PN3

MR J. McKENZIE: If it please the Commission, I appear for Qantas Flight Catering Limited, and with me, MS S. CADET from the company.

PN4

MR G. NIGHTINGALE: I appear for the Transport Workers Union of Australia, New South Wales Branch, and with me, MR M. BALZAN, the delegate from the QFCL.

PN5

THE COMMISSIONER: Yes, this was before me just before Christmas and at which time the ASU sought that the Commission revise or revisit its recommendation which had been that a member of theirs, Mr Bayeh, not be returned to his former workplace pending a whole range of investigations. When the matter was dealt with before Christmas it became clear that the Transport Workers Union had an interest in the matter and that a lot of this relates to notifications from Qantas citing the TWU as the respondent and I think the ASU were only a bystander in some of those proceedings. So the Commission felt that all better be here to hear what the ASU wants now to do.

PN6

Remind me, Ms Maiden, I think we mentioned this on the last occasion, there was a fracas between Mr Bayeh and a delegate of the TWU in someone's office and Mr Bayeh said he had been sick and he was angry and said something to - - -

PN7

MS MAIDEN: The 6 May incident, Commissioner, is what I refer to it as between Mr Bayeh and Mr Dionysopoulos.

PN8

THE COMMISSIONER: That's it. Now, I think you said on the last occasion that something about that issue whether that had been investigated and whether there had been an outcome. Do you recall?

PN9

MS MAIDEN: The matter has been investigated by Qantas, Commissioner, and the outcome was to find that there were no findings substantiated against Mr Bayeh in relation to that investigation and that report, as I understand it, was handed down on 24 May 2002. As a result of that the TWU sought the re-listing that led to the hearing on 30 May which was the hearing at which you issued the recommendation to stand down Mr Bayeh pending the MacBean investigation. Mr Bayeh did not at that hearing have the opportunity to put his version of events and that's what we were seeking to do.

PN10

We also at the last hearing put a number of submissions about why Mr Bayeh should be returned to work really in any event and if it would assist the TWU I could go through a brief summary of what submissions we did in relation to those kind of matters from 20 December. The transcript isn't available yet as I understand, I certainly haven't got it. So I don't know whether that would assist the Commission and certainly informing the TWU of where the ASU is coming from in relation to our dispute notification.

PN11

THE COMMISSIONER: Yes, thank you, Ms Maiden.

PN12

MS MAIDEN: Thank you, Commissioner. A lot of our submissions at the last hearing did attempt to give a bit of a potted history of this matter that's been running for some time and, Commissioner, I've now had the opportunity to prepare a time line of the events and if I could seek leave to tender that as an exhibit. I think we're up to seven, Commissioner.

PN13

THE COMMISSIONER: Yes, I mark that exhibit ASU7.

EXHIBIT ASU7 TIME LINE OF EVENTS

PN14

MS MAIDEN: Now, as the time line shows and it is near the bottom of page 2 and I've got in a lot of the preliminary dates as well because it does all seem to be related, but at the bottom of page 2 there there's a date there 30 May 2002. This is the hearing where the recommendation to stand Mr Bayeh down arose and that matter, the dispute notification has now been re-listed today with this matter. As we noted previously Mr Bayeh was stood down pending the outcome of an investigation by former Senior Deputy President MacBean into four incidents in late 2001 and early 2002 and those incidents have been bolded and starred on the bottom of page 1. So those are the four incidents that are before the MacBean investigation itself.

PN15

The ASU submissions also referred to the incident of 6 May between Mr Bayeh and Mr Dionysopoulos and that's on page 2 near the top there. As the time line indicates there have been a number of Commission hearings dealing with matters that involved Mr Bayeh and Mr Balzan other than that matter last December, namely, in May 2002 most recently but then also in 2001 in relation to a supervisor's report issue that was before this Commission as presently constituted. So there were a number of hearings in May last year and it appeared following a hearing on 20 May 2002 that Mr Bayeh was on the brink of returning to his former duties.

PN16

There was talk of return to work plans and these kind of things and then on 24 May Qantas handed down their findings about 6 May incident which, as I said before, it was found the allegations against Tony Bayeh were unsubstantiated and it was then that the TWU sought to have the matter relisted. We submit that this shows a continual pattern of behaviour by the TWU in that at every turn they seem to be trying to keep Mr Bayeh out of the workplace and this also happened in 2001 with Mr Bayeh's supervisor's report which is on page 1 of the time line.

PN17

On 18 May the TWU threatened industrial action and so Mr Bayeh and Mr Balzan agreed to stand themselves down, both of them they agreed to do that voluntarily. But then on 29 May Qantas had to do a dispute notification because the TWU were threatening industrial disputation if Mr Bayeh returned to the workplace. So this is a continual situation that Mr Bayeh is being confronted with. The TWU, I think, also have a pattern of behaviour. I mean it is their right but they are continually challenging the decisions of Qantas that don't go their way. They did it in relation to the supervisor's report.

PN18

Now, they agreed to mediation but then when it seemed that wasn't going their way they no longer cooperated with that process and we ended up with the MacBean investigation. Every time they don't like the outcome of Qantas investigations they come running to the Commission and on at least two instances that I'm aware of an opportunity is only had for one side of the story to be put. It happened with the supervisor's report and it happened on 30 May in relation to the Jim Dionysopoulos matter.

PN19

So there is a continual pattern of behaviour there and at the hearing on 30 May the TWU opposed Mr Bayeh returning to his duties and they brought evidence to support that. As I have indicated before the evidence primarily concerned the incident on 6 May. Qantas didn't call evidence and neither did the ASU as an intervener and it was on the basis of the TWUs uncontradicted evidence that the recommendation was made to stand Tony Bayeh down. Now, the four incidents that I've referred to before, the bolded and starred incidents have all been investigated by Qantas and those investigations haven't substantiated any findings against Tony Bayeh. But there have been findings on some matters, not all, against TWU delegates.

PN20

I'd just like to reiterate as I said on 20 December that Tony Bayeh does not take issue with any of the Qantas internal investigations and it's the TWU that's appealing the outcome of Qantas' investigations into those four incidents and therefore it is the TWU that has an interest in getting the current MacBean investigation completed. But instead, because of the Commission's recommendation of 30 May, it's Mr Bayeh that's in what I think is quite an usual situation of trying to get the MacBean investigation completed so he can get back to his job and we submit that this is most unfair to Mr Bayeh and I think it's particularly so when it's considered that the MacBean investigation only relates to the four incidents, not the 6 May incident.

PN21

Therefore Tony Bayeh is being stood down pending an investigation by Mr MacBean as a result of evidence about an incident that isn't even part of

PN22

that MacBean investigation. We submit that that's a nonsense and it is also a denial of natural justice to Tony Bayeh because even after the MacBean report comes out it provides Tony Bayeh with no opportunity whatsoever to clear his name about the 6 May incident for which he has been stood down. So, on 20 December last year the ASU referred to the process for the MacBean investigation that's been agreed between the parties about how it's going to continue. The process says that the recommendations can't include any disciplinary outcome and so we questioned at the time and we continue to question the point of Tony Bayeh being stood down pending the outcome of an investigation that cannot make any disciplinary recommendations against him.

PN23

We also made submissions on 20 December last year about the status of the MacBean investigation. We noted that seven months have passed since the Commission's recommendation that Tony Bayeh be stood down and that until mid December 2002 that MacBean investigation was in effect stalled. Now, at the end of the time line there's reference to the current timetable for the MacBean investigation at the end of page 3 and the Commission would note from those dates that are listed there that under the current timetable the MacBean investigation won't even have begun until at least March this year and possibly later and at this time Tony Bayeh will have been stood down for 10 months and by the time the investigation is finished we submit it's likely that Tony Bayeh will have been stood down for well over a year.

PN24

The ASU submitted last December that it was never the Commission's intention for Tony Bayeh to be stood down for this length of time. As we noted last December Mr Bayeh was on Workers Compensation but he's now been cleared by his doctor to return to his former duties which he is very keen to do and which he should be encouraged to do in the context of Workers Compensation and the nature of the scheme in terms of encouraging people to return to work. On 20 December last year the ASU made submissions that Tony Bayeh was being severely disadvantaged by being stood down and we quoted Qantas' arguments regarding Tony Bayeh's disadvantage at the hearing on 30 May when they were at the time arguing for Tony Bayeh's return to work. I won't repeat those, Commissioner, but they were in paragraphs 11.93 and 11.94 for the benefit of the TWU if they wish to look those up.

PN25

If Qantas thought Mr Bayeh was disadvantaged in May 2002 he is most certainly seriously disadvantaged in January 2003 and as we noted at the last hearing Qantas has announced a restructure at QFCL. They announced that on 5 November last year and as they said in their submissions last December there are 169 positions being removed and 110 new positions being created. Tony's is one of the positions that's been removed and he is now in a competition with those other 168 people and apparently some outside the organisation that have been affected by other restructures as well that will be applying for these 110 new positions and without any recent experience in his old position he is surely disadvantaged in that competition.

PN26

Further, if he is unsuccessful in that competition he will have no recent work experience as a duty operations supervisor for his resume unless he is returned to work. So, as we indicated on 20 December we would like the opportunity to call evidence about the 6 May incident as it does appear that the TWUs evidence about that incident was the primary reason for the Commission making the recommendation on 30 May. Now, Mr Tony Bayeh is here and willing to give evidence as is a Mr Peter Cavdarovski. We did write to Qantas last year and again before this hearing asking them to make available three other witnesses. Qantas sent me a fax late yesterday afternoon indicating they do not intend to make those witnesses available to us which we are most disappointed at and believe it is a frustration of our case. Those witnesses were Phil Hardy, Barbara Searle and Vicki Stephens. They have evidence.

PN27

They weren't present at the actual incident but they were there shortly after and can give evidence as to the demeanour of Mr Bayeh and other matters that we believe are highly relevant to Mr Bayeh's version of events on 6 May and we are most disappointed with Qantas' decision to not make those people available apparently for operational reasons. We also asked Qantas to make available to us, and we asked the TWU this as well, to recall the four witnesses that appeared before the Commission on 30 May 2002 to give us the opportunity to briefly cross-examine them and they are Martin Balzan, Jim Dionysopoulos, Andrew Jones and Charlie Josa.

PN28

I sent a fax to the TWU late last week requesting that as well as to Qantas and Qantas have advised that they have passed on that request to the TWU delegates and have left it up to them as to whether or not they wish to attend and the TWU have indicated to me this morning that they do not intend to call evidence even from - they don't intend to re-present those witnesses for us to cross-examine even from Mr Balzan who's here today and in fact Mr Nightingale even suggested that Mr Balzan might want to go and get a coffee, I think, just so he couldn't be called. We find this matter to be completely frustrating. We are trying to present our version of events and I would have expected a bit more cooperation particularly from Qantas in relation to this matter and we would foreshadow that if the Commission believes this evidence is necessary that we would seek to subpoena those witnesses.

PN29

We are willing to go ahead with the witness evidence from Mr Bayeh and Mr Cavdarovski if the Commission feels that may be of assistance in him making a recommendation today. However, if the Commission wants to hear from all the witness evidence before he makes a recommendation we think it should probably all be presented on the one day. Obviously there is some urgency, so we are quite keen to press ahead if the Commission believes it might put him in a position to make a recommendation today. So we would like to call our two witnesses unless the Commission has thoughts on a different approach and I think Mr Nightingale might be quite desperate to make some submissions.

PN30

THE COMMISSIONER: Mr Nightingale, did you want to say something?

PN31

MR NIGHTINGALE: Thank you, Commissioner. This could be a long winded submission and you know never let the truth get in the way of a good story and you may be aware of the history. This goes back probably 18 months other than being a bag of the TWU. Now the TWU progressed through this issue in the correct and proper manner through the Commission, not running to the Commission. Now last year, I might just give a little recap, there was some industrial action on 14 March and appeared before yourself and we were given a shellacking, we were outside of the disputes procedure. We gave an undertaking to follow the disputes procedure. There was a position that we were discussing with Mr Bayeh and the company through the delegates. There was various issues that Mr Bayeh had been involved in. There was the 7th of the 12th '01, issue of harassment.

PN32

There was the 28th of the 12th '01 with Erica Ryback about lifting some stuff up onto the ladders onto the plane just to refresh your memory. There was the 1st of the 1st '02 where some untrained people were allowed to go on the tarmac with the sanction of Mr Bayeh. On 28th of the 2nd there was another harassment charge of Mr Bayeh against Mr Balzan and then whilst we were in the Commission and we had Commission hearings on 2 May 2002. We had Commission hearings on 8 May, 16 May, 20 May and 30 May which we'd followed appropriate processes and recommendations and eventually on 30 May findings. You may remember on 20 May we brought 17 witnesses. So again it's not attacking Mr Balzan, there is other issues.

PN33

On 16 May and approximately in your words and I have evidence to run through your transcripts, on 16 May you said, get Mr Bayeh to change his mind about the MacBean arrangement to run through these matters and I'll hear the arguments on Monday with Mr Bayeh, Mr Dalton who is a representative from the ASU who had been in every Commission hearing and Mr Dionysopoulos. He also said Mr Bayeh must come to the Commission and bring all the ladies and all your witnesses and then you said, we will deal with Qantas and obviously Mr Bayeh has a right to refuse but they were approximately your words on 16 May.

PN34

So we brought 17 witnesses on 20 May to have our say about all the issues with Mr Bayeh and how he treated these particular people and the women were scared and they were quite worried for their safety. Mr Bayeh was at that hearing as well. It was quite clear that Qantas didn't want to run that case on that particular day. We agreed we'd give them some time and hence you set down the date of 28 May.

PN35

I have some correspondence where I communicated with the Commission and it was eventually brought on on the 30th. During those Commission hearings, 6 May, another issue happened with one delegate and two other people that weren't delegates. Hence, 30 May, we indicated to the company in writing and I have evidence to prove that, that we'll be calling three witnesses on 30 May.

PN36

So we'd followed all the processes, we've gone on all the recommendations, followed the disputes procedure. The ASU, Mr Dalton, was in agreeance with everything that went through. He had his opportunity to have his say and for some unbelievable reason, Qantas did not call any witnesses. We had not hoodwinked anybody and it was all prepared to condense it down to the 6 May incident.

PN37

Now, I take offence that the TWU is running to the Commission. We have the QF5 document that was developed around about 8 May. Do you need a copy of that QF5?

PN38

THE COMMISSIONER: No, Mr Nightingale.

PN39

MR NIGHTINGALE: There were three main points that we had to work through and at no time had the TWU asked to stand Mr Bayeh down. If anything, we were sympathetic and we're not after his job and you were quite aware of that but this morning, Ms Maiden has been saying he's been stood down. Now, he can return to work, he's been on workers comp. What actually is happening to Mr Bayeh?

PN40

The recommendations again on 30 May that he was not to be demeaned in any way and he was to be employed and he was not to return to that floor until the process, the MacBean process had gone forward and also evidence which I can hand up and at this stage I don't think we should, that he did threaten those three guys on the day on 6 May. That was your finding. Now, that was eight months ago and we find this is a little bit late in the day to be bringing it up.

PN41

Ms Maiden is new to the ASU and she wants to rewrite the whole history of this particular case. We don't accept it and we totally object. It has been sorted through the Commission, through section 99. We're happy with the outcome. Qantas was happy with the outcome and so was the ASU. So after eight months, if they wish to appeal, they can go through the right process and through the relevant sections of the act.

PN42

So as far as we're concerned, 1146 is basically closed and we're satisfied with the outcome, so was Qantas, we've agreed on it and the ASU and that's our position, Commissioner.

PN43

THE COMMISSIONER: Yes, thank you, Mr Nightingale. Yes, Mr McKenzie?

PN44

MR McKENZIE: Commissioner, in many respects, the submissions which I would make today are very similar to what we put to the Commission on 20 December that in many respects we're in the Commission's hands in relation to this particular matter. The ASU are seeking, as I understand it, that Mr Bayeh return to full duties. The recommendation from the Commission on 30 May was that Mr Bayeh remain on alternate duties until the investigation which is to be conducted by retired Senior Deputy President MacBean be completed. That's my summary of it.

PN45

Commissioner, if the Commission is going to change that recommendation or alter it in any way, then I understand in a sense we're in the hands of the Commission. In many respects, our views in relation to the recommendation has been conveyed to the unions. That is that we have previously advised the union that we are prepared to accept the original recommendation of 30 May.

PN46

As indicated by Ms Maiden in the proceedings before Christmas on 20 December, we did say to the Commission that it was our view at the time that Mr Bayeh should return to full duties. In relation to the investigation that Ms Maiden has referred to concerning the 6 May complaint, our view at the time was and it remains that our internal processes have been completed appropriately and adequately and that the outcomes of that investigation are outlined in exhibit QF3 in relation to those proceedings which is a letter to Mr Jim Dionysopoulos from the investigator, Mr Nuttall.

PN47

It was also conveyed to Mr Allan on the same day which is exhibit QF4 but having said that, Commissioner, Qantas is in essence in the Commission's hands should it wish to change the recommendation and return to Mr Bayeh to full duties. I might say one thing for the assistance of the Commission and that is that we received today from a specialist a report which indicates that Mr Bayeh is able to return to full duties. I foreshadowed that before Christmas that we were waiting on that specialist advice. I don't have a copy of that, Commissioner, but it's been conveyed to me by QFC workers compensation manager that Mr Bayeh has been cleared to return to full duties. In relation to the advice to Mr Bayeh, that will be then conveyed to him formally from the local QFCL management.

PN48

THE COMMISSIONER: I needn't hear from you any more, Ms Maiden. I must say, I find it extraordinary that this thing has taken so long, that is the MacBean investigation and the whole circumstances relating to Mr Bayeh and Mr Balzan. When the Commission made its recommendation, it did not anticipate that this thing would drag on this long or that Mr Bayeh would be so prejudiced that he's still out on the grass as it were, albeit on pay, for six, seven months later.

PN49

The Commission as a consequence now indicates that it's recommendation of 30 May 2002 that Mr Bayeh be not allowed to return to this previous workplace is now withdrawn forthwith. The Commission recommends to Qantas or Qantas Flight Catering that Mr Bayeh be returned to his former workplace on full duties from the first shift commencing Friday, 7 January 2003.

PN50

Any failure by the company to reinstate Mr Bayeh to his old workplace in accordance with my recommendation will be Qantas' decision and not the decision of the Commission. Should Mr Bayeh's return to his employment result in any industrial action whatsoever, the Commission will entertain an urgent notification by Qantas including one pursuant to section 127 and the matter will be relisted as quickly as practicable. The listing will not be limited to Monday to Friday normal hours of the Commission. On that basis, these proceedings are now adjourned.

ADJOURNED INDEFINITELY [12.05pm]