C2003/3915, Transcript of Proceedings [2003] AIRCTrans 2866 (9 July 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

C2003/3915

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under section 127(2) by Qantas
Flight Catering for orders in respect of
industrial action at Mascot Sydney

SYDNEY

9.35 AM, WEDNESDAY, 4 JUNE 2003

PN1

MS H. McKENZIE: I appear for Qantas Flight Catering Limited. Appearing with me is MR J. McKENZIE from Qantas.

PN2

MR L. DUFFIN: I appear together with MR J. DIONYSOPOULOS and MR F. EXPOSTHO.

PN3

THE COMMISSIONER: Yes. Thank you, Mr Duffin. No objection to Ms McKenzie being - - -

PN4

MR DUFFIN: I should say, no objection.

PN5

THE COMMISSIONER: Yes. Thank you. Leave is granted, Ms McKenzie. Yes?

PN6

MS McKENZIE: Commissioner, Qantas Flight Catering Limited makes an application this morning for orders pursuant to section 127(2) of the act. The orders that we seek are set out in draft form in the application, and the grounds upon which is the application is made are summarised in the application. Perhaps by way of expansion on those grounds can I say that the orders are sought in response to a pattern of industrial action which has been taken by members of the TWU who are employed at QFCL.

PN7

The industrial action has been in the form of a series of unauthorised stop work meetings, commencing on last Friday with a meeting in the morning of approximately 20 to 30 minutes duration. There was a further meeting on Saturday, a further meeting on Sunday. This application was filed in the Commission on Monday afternoon, and served on the TWU's Federal and State offices on Monday afternoon, notwithstanding that there was a further stop work meeting yesterday morning, and that one was the longest of the meetings. That one went for approximately 90 minutes.

PN8

In each case management has not been given prior notice of the stop work meeting being held. In each case there has been no attempt to either seek permission or authority from the company as to the holding of the meeting. In each case management has not been advised in any formal way of either the reason for the meeting or the outcome of the meeting, and in those circumstances QFCL can only conclude that there is a rolling campaign under way in the form of instant stop work meetings, which are designed to, and clearly have the effect of, interfering with or obstructing in some other way QFCLs business.

PN9

I am instructed that on each occasion the effect of the stop work meeting, insofar as it has involved approximately 50 employees - the numbers have varied - but approximately 50 employees on each occasion have stopped work to attend the meetings. Their stoppage of work has led directly to services to flights being delayed. On some occasions the flights have been delayed, or on other occasions flights have had to go without their full passenger services being provided. That has led to QFCL being in breach of its obligations to its client airlines, the largest one of which is Qantas, but there are some 11 other client airlines for whom QFCL provide services.

PN10

And that has led to a significant degree of discontent and unhappiness, as you could imagine, from those client airlines, and, of course, the people at the end of the chain who ultimately feel the effect of it are the passengers. And, given the very difficult environment within which QFCL and the airline industry is operating at the moment, the industrial action is having a significant prejudicial effect on QFCLs operations.

PN11

The Commission may be aware that in November of last year QFCL made an application for section 127 orders. That matter was C5714 of 2002, and the matter was heard by Commissioner Lawson. The applications were made in respect to industrial action which was being taken by the TWU, the ASU and the NUW, in protest to QFCLs announced restructuring of its middle management review, and I know the Commission is well aware of some of the detail now of that restructure. And that restructure has been implemented and there has been ongoing discussions with each of the three unions since November about that.

PN12

On the occasion the matter was heard before Commissioner Lawson on 25 November, and on that occasion QFCL explained the need for these matters to be implemented without the threat of industrial action. The Commissioner was minded to make the orders sought, but declined to do so on the basis that each of the unions involved were prepared to give commitments or undertakings that for the future any disputes or issues about the restructure would be dealt with in accordance with the applicable certified agreements.

PN13

And the TWU, along with the other unions, provided confirmation that that would be the position, and it might be appropriate, Commissioner, to tender the letter which Qantas received from John Allen, the Federal Secretary of the TWU, dated 28 November.

PN14

THE COMMISSIONER: Yes. Thank you. I will mark it QF1.

EXHIBIT #QF1 LETTER FROM TWU TO QANTAS DATED 28/11/2002

PN15

MS McKENZIE: I think you will find that the TWU agreed - it referred to confirmation of an agreement that had been reached following a meeting held between TWU and QFCL, and confirmed that the TWU agreed to act in accordance with the dispute resolution procedure in relation to the above matter. The above matter being the restructuring, the MMR occurring at QFCL. And I think it is fair to say that in the last few months that commitment had been honoured by the TWU and there had not been industrial action.

PN16

But in the last few weeks the position has changed, particularly culminating in the series of stop work meetings which commenced last Friday, and continued yesterday. And in that regard, Commissioner, can I perhaps also record - on my instructions industrial action is continuing, at least in this sense that there are apparently four delegates who are present in the Commission this morning, who I am instructed are rostered for normal work at QFCL and who have not sought or obtained any permission or consent to be absent from work to attend these proceedings.

PN17

So there is unauthorised absences from work occurring now, and in the context of the 127 application it is not insignificant to ask that industrial action is continuing at least in that form. And it is indicative of the prevailing attitude of the TWU at the moment in relation to these matters. In relation to any evidence that the Commission might need as to the nature of the industrial action and the consequences of the industrial action for the QFCLs business, I can call Mr Skinner, who is the General Manager of the Sydney facility of QFCL, and I foreshadow that I will do that if the Commission requires it, and/or if the TWU requires it, because my instructions are to press for the orders today, and subject to what the TWU has to say we would wish to go into evidence about the effect of the industrial action.

PN18

In relation to the reasons for the industrial action, QFCL has been advised in an informal way variously by delegates attending the meeting of a number of issues, and I think it is fair to say that we would not say with any real certainty that we know that there is one particular issue, in relation to which the industrial action has occurred. But it appears from the reasons that have been offered to us to relate to variously the notification which QFCL has given Mr Balzan and other TWU employees of their redundancy arising out of the implementation of the restructuring.

PN19

Mr Balzan was advised formally on 28 May that the redundancy which he has previously advised of in April was to be brought forward, and his employment was to terminate with effect from 25 June, unless redeployment had been provided for him prior to that date. But the position at the moment is, as far as QFCL is concerned, that Mr Balzan has not formally sought redeployment in accordance with the procedures required.

PN20

That is to be one reason for the industrial action. It has also been suggested that it is related to the decision to out-source the stores department, and I know the Commission is aware of that in the context of proceedings involving the ASU. And there has also been a suggestion that it relates to, or is in reaction to an incident which occurred on Friday, during the holding of the stop work meeting on Friday. That of course would not explain the reason for the stop work meeting on Friday, but it appears to have been offered as an explanation for the stop work meeting on successive or subsequent days.

PN21

In relation to the meeting which took place on Tuesday, we are not aware of the reason for that, except that we are aware that one of the delegates, Mr Dionysopoulos, was requested by Mr Skinner to attend a meeting with him at 9 o'clock yesterday, at which Mr Skinner was proposing to discuss with him the recent stop work meetings and the reasons for them. Mr Dionysopoulos refused to attend that meeting, and advised the manager that the TWU and he would not be meeting with Mr Skinner until Mr Balzan was returned to work, and following that communication the 90 minute stop work meeting took place.

PN22

So it appears at least that yesterday was in some way a reaction to, or a protest about the requirement that one of the delegates attend a meeting with the facility manager to discuss the situation. So there appears to be some various ingredients behind the industrial action, and that of course is of concern to QFCL, because what it says to QFCL is that there is a mood within the TWU that they will simply take industrial action, rather than deal with the issues.

PN23

It is the case that the work of these employees is covered by a certified agreement, which is within its nominal term, and it is the case that the unauthorised industrial action is contrary to the dispute settlement procedure of that agreement. And given that there is an agreement within its nominal term, the action is clearly not protected action in any shape or form. That is action which could potentially give rise to more serious sanctions by the company, in the form of injunctions or the like, for breaches of the Workplace Relations Act.

PN24

In that context QFCL sees that the only sensible way forward is for orders to be made which will deal with the industrial action, and which will ensure, or allow, any matters which are of substance between the parties to be dealt with in the normal manner. There is settlement procedures in the applicable certified agreement. There is the provisions of the act, and there is just no reason why these matters can't be brought to the Commission, and dealt with, if that is what the TWU wants.

PN25

It is the case that none of the issues which appear to have been behind the industrial action have been the subject of any initiative by the TWU to involve the Commission. There is no notification the TWU has brought to the Commission, or no other appropriate action which they have taken in relation to these issues. So in that context, Commissioner, we seek the orders set out in the application, and if it is either convenient now to call Mr Skinner, or to hear from Mr Duffin first. I am in the Commission's hands.

PN26

THE COMMISSIONER: Yes. We will hear from Mr Duffin first.

PN27

MS McKENZIE: Yes. If it please the Commission.

PN28

THE COMMISSIONER: Yes, thank you. Yes, Mr Duffin?

PN29

MR DUFFIN: Thank you, Commissioner. I think I am in a position of not in complete understanding of all the matters, and I am still - have been trying to obtain instructions in relation to all those this morning. What I can say is the following. Firstly, I should point out, Commissioner, that Mr Allen has been in contact with Ms Sue Bussell, the General Manager for IR at Qantas. There were discussions between them yesterday.

PN30

Ms Bussell had advised Mr Allen, on my instructions, that she would be in a position to deal with this matter this afternoon, and the TWU in that sense - I will need to get some instructions. But my expectation is, Commissioner, that we will be in a position to, once we find out Ms Bussell's response to Mr Allen's discussions with her, we can certainly give effectively an undertaking that there wouldn't be any industrial action until we find out precisely what her response to those matters are.

PN31

In relation to the remainder of the matters that Ms McKenzie has discussed with you this morning, perhaps the first I might say is that the - whilst she mentioned that the orders, or the application was sent on Monday, I believe she referred to, that was somewhat after 5 o'clock when we received it. And in fact I didn't get it until the Wednesday morning, or, indeed, anyone from my office didn't get it until the Wednesday morning.

PN32

THE COMMISSIONER: Tuesday morning.

PN33

MR DUFFIN: Tuesday morning. My apologies. This week has been a bit confused as the result of various things. The second thing that we would say, Commissioner, Ms McKenzie has raised the issue of Mr Balzan. Perhaps I should indicate firstly that it is just simply untrue that he has not attempted to obtain redeployment. It is just not true. That has been something that has been the subject of extensive discussions between QFCL management and Mr Allen. I haven't been privy to all of those, but I have seen numerous correspondence in relation to that matter.

PN34

As I said, I haven't been handling this matter, but I know that that is just not true. It is further the case, in relation to Mr Balzan, that an agreement was made in the Commission, pursuant to the earlier matter that Ms McKenzie referred to, that Mr Balzan would not - the training unit of QFCL would not be out-sourced until appropriate alternative training arrangements were put in place. That has not happened. There is this repeated rejection of agreements made by QFCL in the history of this matter. Mr Skinner, in his witness evidence in that previous matter that Ms McKenzie referred to, and I think it may well have been in this room, said there would be no redundancies.

PN35

That has certainly not come to pass. Mr Balzan was - it was said that he was going to stay certainly until 30 September, less than a week or so ago. That was changed. He was stood down, notwithstanding the fact that he is seeking redeployment, he was stood down, away from the work place, with the termination to be effectively, as Ms McKenzie indicated, 25 June this year. Ms McKenzie further raised the issue of a meeting yesterday, which the TWU delegate, Mr Dionysopoulos, did not attend the meeting with Mr Skinner.

PN36

It had been made perfectly clear to Mr Skinner, arising out of this brought forward termination of Mr Balzan, it had been made perfectly clear to Mr Skinner that any further negotiations between the TWU and QFCL management were to be conducted through he national office of the TWU. In relation to - Ms McKenzie has further referred, albeit briefly, to the events on Friday. On Friday two managers sought to enter the stop work meeting, and on my instructions, and it is a little hazy as to exactly what happened, but my instructions are that in the process of the employees seeking to close a door one of the managers assaulted one of the employees.

PN37

The TWU has alerted Mr Skinner to this issue. Traditional company policy, as I understand it, and in fact, as I understand, the Commission may be well aware of it, is that a person in that situation would be stood down. That has not occurred in this instance. There is, frankly, a great deal of concern about repeated double standards are being used in this company. There is one rule repeatedly for management. There is quite a separate rule, and quite a separate way of dealing with employees, both in terms of human resource management, in terms of application of policies, in terms of the way the company has dealt with this issue.

PN38

And that really has been a significant concern for, on my instructions, all of the kitchen staff since Friday. I should also point out two further things, that Ms McKenzie hasn't touched on, but have been a significant contributor to the degree of dissatisfaction that has emerged in the last couple of weeks. The first is in relation to a matter which I - I have only been given the one copy, Commissioner, and so I don't have a copy for my friend. Perhaps it might appropriate if I just show it to her first.

PN39

To give the Commission understanding before I hand it up to you, as part of the redeployment process, Commissioner, the TWU and QFCL HR had involved themselves - as I said, I don't have any spare copies, Commissioner, so while I would - perhaps I would tender it, it is a little bit difficult under the circumstances. The TWU and QFCL HR had discussed, and we thought we had reached an agreement on the basis of what sort of letters would be sent to employees who were part of the redeployment exercise.

PN40

The material you have in front of you is, in no way, on my instructions, material that was agreed to by the TWU, and it is made perfectly clear in that material that if the documents are not signed by this Friday, 6 June, the employee shall be considered to have rejected the redeployment offer and will be effectively terminated in accordance with the redundancy provisions. That is a matter of great concern to the employees.

PN41

It is a matter of - we are now three days from that coming into effect in a situation where it is just not something that was ever agreed between the TWU and has, on my instructions, involved a - frankly nothing can be put more simply than a reneging of what was agreed between Mr Allen and Mr Harden in terms of what sort of documentation would be provided to the employees. I should say, as a final matter, which is again something of significant concerns, which has been - a matter which has been debated long and hard over the last months or so, leading to a final situation where, on my instructions, Mr Skinner yesterday indicated that he no longer intended to abide by an agreement that had been made by the TWU with QFCL.

PN42

This agreement concerns, and there was previously, and I may not explain this with perfection, Commissioner, because I don't have 100 per cent grasp of it myself, but there was previously an agreement where what was called the one per cent overtime calculation. As to exactly how it operates I am not certain. I am sure the company will be able to advise the Commission. The company in this difficult time, as Ms McKenzie said, came to the union and said, "Look, we can't continue on this one per cent. It is too expensive. We can't do it at the moment."

PN43

The union said, "Look, we understand your issue. We understand it. Let us make a deal." The union made a deal whereby - it is a slightly difficult thing to comprehend, but they went to a 12 per cent calculation. Now for various reasons that is a lesser figure than the one per cent. And the issue there really was that that overtime calculation is that the employees were to receive this as overtime payment prior to the use of casual employees.

PN44

Now, the problem is the company has basically not abided by that agreement for some several months, on my instructions. The overtime calculation has really been between sort of five and seven per cent. And that has a - I mean, obviously has very significant ramifications on all employees. On my instructions, again, Mr Skinner yesterday informed the employees that the whole deal with off. They no longer have any intention in dealing with this agreement.

PN45

Simply put, Commissioner, there are a vast range of issues at this work place, which are dealt with through management fare, and the union has attempted, over a period of some several months now, to negotiate, to participate, to be part of this, and has been either stymied or frustrated or deliberately told untruths. And our position, Commissioner, as I said at the outset, is that while I need sort of further instructions to understand everything that has happened over the last period, for me to provide you with proper submissions, or indeed it might be more appropriate to go off the record, so that some of the employees are in a position to do so.

PN46

Our primary position is that, as I said, Mr Allen has been in contact with Ms Bussell. We are prepared to provide an undertaking until we find out the results of those discussions. On my instructions, notwithstanding Ms McKenzie's somewhat elaborate efforts to describe the four delegates here today as being a continuation of some sort of industrial action of enormous ramifications, our position would be that there is no essential industrial action happening at the present time.

PN47

Upon receiving the response from Ms Bussell, they are not putting any prejudice in relation to that issue. They can, for better or worse, it seems like I am going to be here for at least the next little while dealing with this matter in part, so would be our submission that, in the light of that, that the appropriate thing to do would be to adjourn this matter until such a time as that comes about.

PN48

THE COMMISSIONER: Yes. Thank you. Oh, Mr Duffin, the discussions that Mr Allen is having with Qantas, with Ms Bussell and others perhaps, that is not only about Mr Balzan?

PN49

MR DUFFIN: No.

PN50

THE COMMISSIONER: No. It is about a whole range of issues which you have touched on?

PN51

MR DUFFIN: Yes. I mean, for example, it deals with the issue of that contract, the terms of that issue.

PN52

THE COMMISSIONER: Yes. Yes. The one per cent. Yes. Okay. Yes, thank you. Yes, Ms McKenzie?

PN53

MS McKENZIE: Yes, Commissioner, perhaps I can deal with some of those matters by way of response. I am instructed that the discussions that Mr Duffin is referring to between Ms Bussell and Mr Allen was in effect a telephone conversation which the two of them had at about 9 o'clock yesterday morning, and that the subject matter of that telephone conversation was Mr Balzan's position, and perhaps more broadly than that, Mr Allen's complaint or allegation that there has not been appropriate consultation about the training positions.

PN54

That conversation took place in circumstances where both Mr Allen and Ms Bussell were unaware that industrial action was occurring as they spoke, in the form of the 90 minute stop work meeting which took place yesterday. And Ms Bussell simply said to Mr Allen that in relation to the consultation she would make inquiries and get back to Mr Allen. Now, Mr Duffin, I think has attempted to try and elevate this discussion to the level of some commitment by Ms Bussell to provide some formal response to the TWU on matters, and that it would be somehow appropriate for that response to be provided before these matters proceeded.

PN55

But on my instructions it was no more than a telephone conversation about Mr Balzan's position, and Ms Bussell said that she would look into the suggestion that there hadn't been adequate consultation about the training positions, and get back to Mr Allen. But Ms Bussell was not aware at the time she spoke to Mr Allen that industrial action was taking place at that time, and my instructions are, as they come through QFCL and Qantas Industrial, from where Mr McKenzie is, that Qantas seeks the orders.

PN56

Now, with respect to Mr Duffin, there really is nothing that he has said, by way of his submissions, which address the issue of whether or not it is appropriate for orders to be made. There has been no suggestion that the industrial action did not occur. There is no challenge factually to what has been put about the industrial action which has occurred. There seems to be no contest or challenge to what has been put about the consequences to the business of the action. No comfort could be provided to the Commission or to QFCL as to the likely probability of further industrial action occurring.

PN57

On the contrary, Mr Duffin has raised all sorts of complaints and grievances which the TWU has with Qantas, and some allegations have made, some of which are quite serious, about QFCL not complying with agreements and the like. Which seem to provide fertile ground for ongoing discontent or disputation between the parties, in circumstances where no acknowledgment has been made that the agreement has been breached in terms of the dispute settlement procedure.

PN58

No explanation has been provided to the Commission as to why unauthorised industrial action needed to take place. No explanation has been given to you as to why the TWU could not have raised these matters in the appropriate forum and aired them. If we get into these matters at some point down the track, as no doubt we will, I am confident that the facts will show that there has been a significant amount of consultation throughout the whole of this restructure between QFCL and the TWU, and indeed with the other unions. And I know you are aware of some of that.

PN59

There has been a myriad of issues raised along the way, and there has been extensive consultation, and there is a process in place whereby that consultation is continuing. As recently as 30 May there was discussion with the TWU about some of the matters Mr Duffin touched on, the casuals and the part time. 27 May, I am sorry. The TWUs position on that occasion is that they would not talk to QFCL until Mr Balzan was returned to the work place. Now, that is a little bit at odds with the suggestion now that QFCL is not responding to these issues.

PN60

But in any event, even if there are issues which still need to be talked through and discussed with the parties, and if they can't reach agreement ultimately determined in some other way. None of that is any explanation or reason why industrial action needs to occur, and, in our submission, the balance of convenience is clearly in favour of QFCL being given some protection from the ongoing threat of unauthorised illegal industrial action, which will disrupt its business, and only deteriorate the very difficult circumstances which it faces, which is in part the reason for the significant restructuring and changes to the business which have been occurring.

PN61

And the Commission is aware of some of the context of those. The power to make orders under section 127 is there to protect employers from unauthorised illegal industrial action, and it is there in one sense as a trade off for the right that the act also give unions to take protected industrial action in certain circumstances. But once the parties have reached agreement, once an agreement is within its nominal term, and there is a dispute settlement procedure, which the act requires to be there in the agreement, in circumstances where industrial action occurs, without there being any good reason or explanation, which the Commission would take into account in the exercise of its discretion, in our submission an employer is entitled to get some protectional relief from that sort of industrial action.

PN62

The act gives the Commission the power to make orders where industrial action is happening, threatened, impending or probable. In our submission the evidence would clearly - although it is from the bar table at the moment, but we will put Mr Skinner in the box if it is necessary - the facts will clearly demonstrate that there has been a pattern of industrial action occurring over the last five days. There is nothing coming from the TWU which would give any indication that that will not continue, indeed to the extent that what Mr Duffin says can be relied upon. It is all to the contrary.

PN63

Industrial action is clearly threatened, impending or probable, and, in our submission, the appropriate circuit breaker for this particular situation is for the orders to be made, and then the parties can sit down and address, in the more appropriate matter, how the underlying issues can be resolved and worked through. If there is an issue at the heart of this concerning Mr Balzan's redundancy, or the redundancy of any other of the employees who have been made redundant, and Mr Balzan is not the only one, then part 6A of the act clearly deals with the right of employees and unions to challenge terminations of employment.

PN64

And if there is a complaint or allegation that there is not a genuine redundancy, or the reason is not valid, then that is absolutely what the termination of employment provisions are designed to address. And applications under that part of the act can be made in relation to a threatened termination, as well as an actual one. So there is absolutely no barrier to those issues being ventilated, if that is one of the reasons at the heart of the industrial action.

PN65

But absent the TWU taking the initiative and dealing with whatever the substantive grievances or issues may be, QFCL is in the position where it is just the victim of industrial action, it and its customers, and ultimately the passengers, and no good reason has been volunteered from the TWU as to why that situation should continue. So on my instructions, Commissioner, we wish to proceed with the application, press for the orders, and if it is considered appropriate or necessary to call Mr Skinner to give evidence in relation to matters that I have traversed in my submissions from the table.

PN66

THE COMMISSIONER: Are you saying you have no information that Ms Bussell and Mr Allen are talking this afternoon?

PN67

MS McKENZIE: My instructions, Commissioner, are that there was - Ms Bussell undertook, or said that she would investigate the suggestion about the consultation and respond. But it was not something that was held out in any way to be a reason why the TWU should await that response. It was simply a, "I will look into it and get back to you," but it was not something that was of any great assistance than that.

PN68

Perhaps, it might be just for completeness, useful, Commissioner, also to tender the letter that was provided to Mr Balzan confirming the effective date of his redundancy, which was 28 May, and I am instructed that on the day that this letter was sent Mr Skinner had a discussion with Mr Allen and advised him of this action, and that there was also discussion with Mr Balzan and the relevant HR people at QFCL about this issue. So that occurred on 28 May.

PN69

Mr Duffin made some mention about Mr Balzan's desire for redeployment, and in that context can I just draw the Commission's attention to the fourth paragraph of this letter, which advises Mr Balzan of the need to complete the blue form, the redeployment preferences form, and, on my instructions, Mr Balzan has not completed that form, and that is the basis upon which I submitted that he has not applied in the usual - in accordance with the required procedures he has not applied for redeployment.

PN70

THE COMMISSIONER: These things have "strictly confidential" on them. I mean, am I to disregard that? I say that Mr Duffin's letter had the same thing. It is not a problem with those becoming exhibits?

PN71

MS McKENZIE: Well, perhaps if they can be marked confidential exhibits, Commissioner, I would certainly not have any difficulty with the Commission having access to them.

PN72

THE COMMISSIONER: Okay. Well, the first one, Ms Clark's, we will mark that confidential and it will be exhibit TWU1, and this other one of Mr Balzan will be exhibit TWU2, confidential.

EXHIBIT #TWU1 REDUNDANCY LETTER TO MS CLARK

EXHIBIT #TWU2 REDUNDANCY LETTER TO MR BALZAN DATED 28/05/2003

PN73

MS McKENZIE: Sorry, what was the exhibit number of this one, Commissioner?

PN74

THE COMMISSIONER: QF2.

PN75

MS McKENZIE: QF2, sorry. Perhaps if we could obtain a copy of TWU1 at some point too?

PN76

THE COMMISSIONER: Yes. We will. Ms McKenzie, can I take it, without calling Mr Skinner, he was going to tell us that industrial action has occurred, and that it has had an impact on his business?

PN77

MS McKENZIE: And what the ongoing adverse effect would be of any future industrial action.

PN78

THE COMMISSIONER: Yes.

PN79

MS McKENZIE: That it would effectively be a compounding effect in terms of the position of the client airlines that these things have a compounding effect, and there has now just been four stop work meetings. If there were to be more, on each occasion it would be more serious. So he was going to address the future effect of ongoing industrial action, had the industrial action occurred, and that flights had been - he could evidence in relation to the particular delays or damage to the business of the action which has occurred. But, as I have previously submitted, that doesn't seem to be an issue. It hasn't been put in issue by the TWU.

PN80

THE COMMISSIONER: So we can accept your - - -

PN81

MS McKENZIE: Well, I would be more than happy if you do accept it, and it doesn't appear to be factually in contest. I just wanted to make it clear - - -

PN82

THE COMMISSIONER: Yes.

PN83

MS McKENZIE: - - - to the extent that there was any contest we would deal with it with sworn evidence.

PN84

THE COMMISSIONER: Yes. Thank you, Ms McKenzie. I have heard the parties on this issue. I am satisfied that the jurisdictional requirements for the issuing of 127 orders, as applied for by Qantas, have been made out. With reference to the award the employees employed under it and the agreement and industrial action occurring, and it having some impact, although I don't think the impact is necessarily relevant.

PN85

That really brings me to whether I should exercise my discretion. I am a bit aware of the difficulties that the company has had in getting some change and getting some necessary developments proceeding at Qantas Flight Catering for some time, and I am somewhat sanguine to comments about supervisors assaulting other people. I have heard all that before. I am not minimising this instance, but I have heard it all before from both sides. So I don't know if I am all that impressed by that.

PN86

And I think there is always a lack of appreciation by TWU members that somehow they can take action, and it is only the company that suffers, and I wouldn't be - I am not saying I am dismissive of Qantas' interests, but I am particularly interested in the effect on the travelling public. They are not just numbers. They are actually men, women and children, who pay a lot of money to travel on various planes, not necessarily Qantas planes, and I think they have got a right to be fed and have food and drink given to them.

PN87

And so I think everybody should be aware that these stoppages do come at a cost. I am not talking about dollars, I am just talking about discomfort. And it is not - like all sorts of delays they do cause problems, and, as I said, I consider that, and I don't treat it lightly in any way. A number of issues have arisen as to what is behind all of this, and in fact Qantas, before I say that, Qantas has indicated that for quite a number of months now there has been no conduct by the TWU members that would have indicated a breach of Mr Allen's undertaking of November of last year.

PN88

A number of things have arisen. If - I am not accepting what Mr Duffin says, and in fact he is a bit unsure of the specifics of it, but anything that goes to a suggestion that Qantas has breached undertaking as to overtime agreements, or that its process of making people redundant is a process that has not been fully agreed, and perhaps should have required more consultation, and also the fate of Mr Balzan, who, while the Commission has had some difficulties with him itself, the fact is he is the chief delegate of the TWU, or has been for a number of time, and while he is not to be protected because he is the chief delegate, he is also not to be targeted.

PN89

And I am not suggesting he has been targeted, but obviously the employees have some interest in his fate. Now, that has not justified the industrial action, but I think it is to put some basis to why it may have been occurring. I am not persuaded that I should issue the orders. I have got some confidence that these issues, complex as they are, need to have some formality brought to them, and I don't expect that to be through stop work meetings.

PN90

But I am, although the company doesn't seem to be particularly hopeful, or know much about it, I am comforted by Mr Allen's interest in the matter and I don't know what the level of the discussions are, but I would say that - well, I would recommend that Mr Allen or persons in lieu of him continue to hold meetings with senior persons at Qantas and of Qantas Flight Catering to discuss a number of these issues, to see if there is some kind of way of regulating the change, including redundancy can be better worked through.

PN91

In the meantime I would issue a strong recommendation that no industrial action of any kind, including these stop work meetings, occur by members of the TWU, until and unless specific notification is given to Mr Allen. That doesn't mean Mr Allen will be able to stop industrial action, but I just think that if Mr Balzan and Mr Dionysopoulos or the State Branch of the TWU want to call a stop work meeting because they think everything is terrible, and they want to do something.

PN92

All I suggest is that they bring it formally to the attention of Mr Allen, call him up, speak to him, and just see what he has to say, because the chances are that he will either be able to talk them out of it, or give them information and make sure the matter is kept on the rails. Now, should that not occur, and industrial action does re-appear, then the Commission will probably take a different attitude to an application such as this. On that basis these proceedings are now adjourned.

ADJOURNED INDEFINITELY [10.25am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #QF1 LETTER FROM TWU TO QANTAS DATED 28/11/2002 PN15
EXHIBIT #TWU1 REDUNDANCY LETTER TO MS CLARK PN73
EXHIBIT #TWU2 REDUNDANCY LETTER TO MR BALZAN DATED 28/05/2003 PN73