C2003/5379, Transcript of Proceedings [2003] AIRCTrans 4335 (1 October 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 4689

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C2003/5379
C2003/5380

AIRLINE OPERATIONS (TRANSPORT WORKERS')
AWARD 1998

AIRLINE OPERATIONS (DOMESTIC AIRLINES)
AWARD 2000

Application pursuant to section 113 of the Act
by the Transport Workers' Union of Australia to vary
the above awards re clause 16.3.7, pay rate of
part time employees

MELBOURNE

10.08 AM, MONDAY, 15 SEPTEMBER 2003

PN1

MR L. DUFFIN: I appear on behalf of the Transport Workers' Union.

PN2

MR J. McKENZIE: I appear for Qantas Airways Limited and Qantas Flight Catering.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Duffin.

PN4

MR DUFFIN: Thank you, your Honour. Your Honour, these matters deal with the establishment of certain minimum consecutive hours. They seek a variation of the two awards, those being the Airline Operations (Domestic Airlines) Award and also the Airline Operations (Transport Workers') Award. If I may - - -

PN5

THE SENIOR DEPUTY PRESIDENT: I perhaps should indicate in respect to one of the matters, the variation to the Transport Workers' Award, Airline Operations (Transport Workers') Award, I received correspondence from Clayton Utz on behalf of Virgin Australia. Have you received a copy of that, Mr Duffin?

PN6

MR DUFFIN: I have received a copy of that, your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: Perhaps I will mark that V1 for the record. Do you have that, Mr McKenzie?

PN8

MR McKENZIE: I don't. I don't, your Honour.

PN9

THE SENIOR DEPUTY PRESIDENT: Perhaps I will make a copy available to you, Mr McKenzie.

EXHIBIT #V1 CORRESPONDENCE FROM CLAYTON UTZ ON BEHALF OF VIRGIN AUSTRALIA RE AIRLINE OPERATIONS (TRANSPORT WORKERS') AWARD 1998

PN10

MR DUFFIN: Perhaps, your Honour, while we are doing that, I might seek to - if I can approach the bench, hand up statements of service in relation to both matters. I am happy to do that and also to provide to Mr McKenzie.

PN11

THE SENIOR DEPUTY PRESIDENT: Thank you for that.

EXHIBIT #TWU1 STATEMENT OF SERVICE RE AIRLINE OPERATIONS (TRANSPORT WORKERS') AWARD

EXHIBIT #TWU2 STATEMENT OF SERVICE RE AIRLINE OPERATIONS (DOMESTIC AIRLINES) AWARD 2000

PN12

MR DUFFIN: Now, your Honour, we have - I must confess I have been on leave for the last couple of weeks and haven't been completely across all developments in relation to this file. However, we have a draft amended order reflecting some of the comments that Virgin, through their solicitors, proposed and I would seek also to hand those draft amended orders up. Now they are not marked as amended orders at this stage. The original - if I could hand the original for the Commission's file.

PN13

THE SENIOR DEPUTY PRESIDENT: Very well, and they are together so I will mark them together.

EXHIBIT #TWU3 AMENDED ORDERS SOUGHT IN RESPECT TO EACH OF THE AWARDS

PN14

MR DUFFIN: Now, your Honour, in relation to the Domestic Airlines Award matter, the TWU has also received correspondence from the National Union of Workers. I don't know whether the Commission has received - - -

PN15

THE SENIOR DEPUTY PRESIDENT: No.

PN16

MR DUFFIN: I only have the original. If I may just hand that to your Honour. Perhaps if I can just read it for Mr McKenzie's benefit. It just advises that the NUW is unable to attend the matters today but the union has no objection to the variation as sought by the TWU.

PN17

THE SENIOR DEPUTY PRESIDENT: Very well.

EXHIBIT #TWU4 CORRESPONDENCE FROM THE NATIONAL UNION OF WORKERS RE AIRLINE OPERATIONS (DOMESTIC AIRLINES) AWARD 2000

PN18

MR DUFFIN: Now, your Honour, the union is seeking these variations largely to provide a degree of certainty in relation to part time workers in the airline industry. Your Honour would be aware that there has been some issues associated with the nature of the industry in recent months. This is partly, perhaps really in some respects slightly an issue tangentially connected with that. In some respects this is more something which had been an issue which the union probably should have addressed some time ago. We have sought to do it in the draft application in accordance with the objects of the Act and we, should it be necessary to run the matter at hearing, would be prepared to call evidence and provide such submissions as are necessary. We would say, your Honour, that the applications are consistent with many other awards, certainly in the transport industry and are not inconsistent with the majority of the certified agreements that operate in the industry in any case. It is not something which would run counter to those certified agreements.

PN19

I am unaware as to whether there has been any discussions between the TWU and Qantas in relation to this matter. I haven't really had an opportunity to discuss it with Mr McKenzie prior to your Honour coming onto the bench this morning.

PN20

THE SENIOR DEPUTY PRESIDENT: Well I am happy to deal with the matter however you please. If you wish to have a discussion with Mr McKenzie, if you wish to go into conference at the same time - - -

PN21

MR DUFFIN: I guess I would be interested in just hearing what Qantas' position is in relation to this.

PN22

THE SENIOR DEPUTY PRESIDENT: Very well. Well, Mr McKenzie, is there anything you wish to put on the record at this stage?

PN23

MR McKENZIE: If I may, your Honour. I guess the starting point from Qantas's and Qantas Flight Catering's point of view is that the award is a safety net which reflects a minimum standard. The award has been simplified, as the Commission would be aware. It was simplified in 1998. The provision was inserted which did not provide for any minimum term of engagement for part time employment. It does, however, cover in clause 16.3 quite an amount of detail in relation to the nature of engagement of part time employment and we would submit that if there was going to be a consideration of the length of time or minimum duration of part time employment on each day or shift, that perhaps would have been dealt with at the time of simplification. That is the first point.

PN24

Second point is that we do have, as the Commission would be aware, provisions in our existing enterprise agreements which provide for minimum terms of engagement on a daily basis for a part time employee. I might also add that it is a minimum term of engagement on a weekly basis as well.

PN25

In terms of the Commission principles, if I could take the Commission to that very briefly. The statement of principles in point 1 essentially says that as a result of the award simplification process, awards will, where necessary, be varied so that they act as a safety net of fair wages and conditions of employment and also are simplified and suited to the efficient performance of work according to the needs of particular workplaces or enterprises and encourage the making of agreements between employers and employees at the workplace or enterprise level.

PN26

Also, for the test to take into account whether the variation is above or below the safety net, is also covered in the wage fixing principles, as the Commission would be aware. We would say that what is before the Commission today in terms of the application is really not covered in there. It is not really about varying the award for the National Wage Case increase or test case standard or service increments or work value or 38 hour week or arbitrated safety net adjustments. It - - -

PN27

THE SENIOR DEPUTY PRESIDENT: So your position is it would involve a variation above or below the safety net.

PN28

MR McKENZIE: It is a small matter, your Honour, but it does deal with, in one sense, the safety net in the award as it was simplified in 1998. I understand the submissions of Mr Duffin and they relate to the fact that it is covered in a number of other industry awards. That is perfectly correct, however, the issue from our point of view is that this was probably taken into account at the time of the simplification of the award between the parties, bearing in mind the award simplification was actually a consent matter and wasn't arbitrated. So, your Honour, we would put our objection on the record in relation to what the TWU are seeking to do.

PN29

Mr Duffin alluded indirectly to the recent disputes between the parties in relation to Melbourne Airport but we would say that the award itself, in relation to part time employment, deals with the matter in quite detail and was taken into consideration, we would submit, by the parties at the time the award was simplified. If I can leave my submissions at that.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Well, you know the position of Qantas, how do you wish to proceed from here, Mr Duffin?

PN31

MR DUFFIN: Well, your Honour, if Mr McKenzie is making an objection or a submission that this is an above safety net standard, then obviously we have courses available to us in relation to that and in our view it would be a legitimate part of the safety net and it is not a situation where what the union is seeking is in our view above the safety net. We are seeking no more than the proper setting of the safety net in relation to this.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes, but the safety net prima facie is - - -

PN33

MR DUFFIN: Is constituted by the existing award. I am aware of the statement of principles, your Honour.

PN34

THE SENIOR DEPUTY PRESIDENT: So that would require reference to the President. As to what the President does - - -

PN35

MR DUFFIN: It may well be that the President refers the matter back, who knows. He may establish a Full Bench.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes.

PN37

MR DUFFIN: It is a matter for the President in those circumstances. But we would clearly have no difficulty with making such an application. I am - and in may well be that that is an appropriate course, your Honour, in relation to this, that it will give many the opportunity and possibly in the intervening period seeing whether Qantas' objections are meaningful or whether they are - we just don't like anything changing our existing situation, and so that may be something that we would seek to explore in that intervening period.

PN38

THE SENIOR DEPUTY PRESIDENT: And I suppose that would also provide an opportunity to speak to Virgin.

PN39

MR DUFFIN: Well, it certainly seems to me that Virgin is prima facie from that letter is unlikely to.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes, but that might be confirmed at least in any intervening period.

PN41

MR DUFFIN: Your Honour, my recollection of the statement of principles is not perfect but I think it is possible pursuant to section 107 for you to refer a matter to the President. It may be that that is an appropriate course in these circumstances.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes.

PN43

MR DUFFIN: And then allow the President to make his decision in the light of what you know from the material before you.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes. And then the matter would be relisted presumably before myself or a Full Bench.

PN45

MR DUFFIN: Appropriately constituted.

PN46

THE SENIOR DEPUTY PRESIDENT: Depending on the will of the President.

PN47

MR DUFFIN: Yes.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes. What sort of timeframe would you think appropriate for a relisting of the matter to allow for discussions with Qantas and the like?

PN49

MR DUFFIN: I would have thought 14 days, your Honour, subject to your availability. Perhaps - I know that I am unavailable that week so perhaps the week after that. I think the first week in October.

PN50

THE SENIOR DEPUTY PRESIDENT: The first week in October, yes. Well, I think I am bound by the principles to refer the matter to the President and it is ultimately a matter for him as to how the applications are further dealt with. It might be a useful interval in the sense that given a variation in the order sought it is probably appropriate that the order in those terms be served on those other parties in accordance with orders for substituted service and the like. Very well, I will refer the matter to the President. I take it, Mr McKenzie, you wouldn't have any difficulty with the first week of October as a timeframe.

PN51

MR McKENZIE: If I can clarify, your Honour, that that is the week commencing the 6th.

PN52

THE SENIOR DEPUTY PRESIDENT: Is that the week you had in mind, the first full week or the - - -

PN53

MR McKENZIE: Yes, that is correct.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes, very well. So the week commencing 6 October and I take it, Mr McKenzie, you would have no objection to conferring with the TWU in relation to the matter.

PN55

MR McKENZIE: No. No, your Honour.

PN56

THE SENIOR DEPUTY PRESIDENT: Yes.

PN57

MR McKENZIE: There is only one difficulty in that week, your Honour, and that is the 6th which is Labour Day in New South Wales.

PN58

THE SENIOR DEPUTY PRESIDENT: That is not a difficulty.

PN59

MR DUFFIN: The rest of us will be here, your Honour.

PN60

THE SENIOR DEPUTY PRESIDENT: I will seek to avoid that, Mr McKenzie, presuming the matter returns to myself.

PN61

MR McKENZIE: Thank you.

PN62

THE SENIOR DEPUTY PRESIDENT: Very well. Well, thank you for that, I think that is all that can be done on this occasion. I will refer the matter to the President. Parties will be advised of the President's decision and the matter will be relisted either before a Full Bench or myself - certainly if it is referred back to myself in the week that you have nominated - obviously I can't speak for a Full Bench. Very well. Thank you for that. I will now adjourn.

ADJOURNED INDEFINITELY [10.25am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #V1 CORRESPONDENCE FROM CLAYTON UTZ ON BEHALF OF VIRGIN AUSTRALIA RE AIRLINE OPERATIONS (TRANSPORT WORKERS') AWARD 1998 PN10
EXHIBIT #TWU1 STATEMENT OF SERVICE RE AIRLINE OPERATIONS (TRANSPORT WORKERS') AWARD PN12
EXHIBIT #TWU2 STATEMENT OF SERVICE RE AIRLINE OPERATIONS (DOMESTIC AIRLINES) AWARD 2000 PN12
EXHIBIT #TWU3 AMENDED ORDERS SOUGHT IN RESPECT TO EACH OF THE AWARDS PN14
EXHIBIT #TWU4 CORRESPONDENCE FROM THE NATIONAL UNION OF WORKERS RE AIRLINE OPERATIONS (DOMESTIC AIRLINES) AWARD 2000 PN18