C2003/6327, Transcript of Proceedings [2003] AIRCTrans 5538 (11 December 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C2003/6327

APPLICATION FOR AN AWARD

Application pursuant to section 111(1)(b)
of the Act by the Australian Municipal,
Administrative, Clerical and Services Union
and Another for an award by consent of the
parties

SYDNEY

11.03 AM, THURSDAY, 27 NOVEMBER, 2003

PN1

MS L. WHITE: I appear on behalf of the Australian Municipal, Administrative, Clerical and Services Union.

PN2

MR J. FARROW: I seek leave to appear as an agent for Australian Airlines. I understand that my colleague from the ASU has no objection to that.

PN3

THE SENIOR DEPUTY PRESIDENT: No objection?

PN4

MS WHITE: No objection.

PN5

THE SENIOR DEPUTY PRESIDENT: Very well, Mr Farrow, that is granted. We might go off record.

OFF THE RECORD [11.04am]

RESUMED [11.07am]

PN6

THE SENIOR DEPUTY PRESIDENT: Ms White?

PN7

MS WHITE: Thank you, your Honour. Firstly, we would like to thank you for bringing this matter on at short notice and also for contacting us on Tuesday regarding some matters that you wanted the parties to address on the record and so as part of this application for the consent award I will address all of the matters that might have been outstanding. Certainly, the matters before the Commission today are addressed at establishing a Federal award and certified agreement to govern the terms and conditions of the clerical and administrative employees soon to be employed by Australian Airlines Limited.

PN8

Your Honour has been already involved in the making of award and a certified agreement between the company and the Flight Attendants Association of Australia and also the Australian International Airline Pilots Association, that was last year, your Honour, and your Honour will probably be familiar with the background to the company's operations from those award creation and agreements. But briefly by way of background, Australian Airlines is a wholly owned subsidiary of Qantas Airways Limited, but it is managed quite separately and it is operating independently of Qantas and it is a business that is only a year old and it is a full service international leisure carrier, but only operating one aircraft type, and flying from very limited locations in Australia.

PN9

It is still a new business and in the terms of the industry a start-up airline and although the company has done arrangements with the flight attendants and pilots, we are seeking to establish a new award and agreement to cover the administrative and clerical staff that will be employed by the new airline. Although it has been flying for just over a year, to date it has not directly employed any employees in the ASU coverage areas covered by the agreement and the award, rather small numbers of staff have worked for a labour hire company and provided services to the airline and there have been some staff who are Qantas employees or from the Qantas group of companies who have been seconded but have remained as employees of those companies, so no one has been directly employed.

PN10

The negotiations between the parties have been ongoing and we now seek to finalise with the Commission and formalise the arrangements to cover these clerical employees so they can be employed directly very soon. The applications have been made by consent and I will make the majority of the submissions. However, Mr Farrow, for Australian Airlines, may add a couple of matters as he too has been involved in the negotiations and drafting of the award and the agreement over a period of time. Your Honour, first if I take you to the dispute notification on 11 June 2003 a finding was made by Commissioner Eames in a matter C2203/2548 that an industrial dispute within the meaning of the Act existed between the parties. I have a copy of the record of findings if - - -

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, I would appreciate that. I will mark that record of findings of 11 June 2003 exhibit ASU1.

EXHIBIT #ASU1 RECORD OF FINDINGS DATED 11/06/2003

PN12

MS WHITE: So the dispute having been made by the Commission, our application is pursuant to section 111(1)(b) of the Act and the Commission is being asked by the parties to the dispute in the matter 2003/2548 to make an award to settle the dispute. The award sought was in the form of the proposed award filed with the Commission on 17 November 2003, however after suggestions by your Honour the parties have made a few changes to the form of the award and I now seek to tender the revised award which I have in two forms for your Honour. One is a marked up copy, which is this copy, against - and it is marked up against what was filed on 17 November and the other copy is a copy which is the final version almost.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, a clean copy.

PN14

MS WHITE: And at the same time, your Honour, I will also hand up to you a revision of clause 14.5. Both Mr Farrow and I are not skilled enough to have put it in but there is a change to the marked copy - so that is the marked up copy and this one is the unmarked up copy.

PN15

THE SENIOR DEPUTY PRESIDENT: I will mark these documents. The marked up copy of the proposed award I mark exhibit ASU2.

EXHIBIT #ASU2 MARKED UP COPY OF THE PROPOSED AWARD

PN16

THE SENIOR DEPUTY PRESIDENT: And the, what I call, clean copy of the proposed award is marked exhibit ASU3.

EXHIBIT #ASU3 CLEAN COPY OF PROPOSED AWARD

PN17

THE SENIOR DEPUTY PRESIDENT: Do you want me to mark the replacement table for clause 14.5?

PN18

MS WHITE: Yes, your Honour, I will refer to it.

PN19

THE SENIOR DEPUTY PRESIDENT: All right, the replacement table for clause 14.5 I mark exhibit ASU4.

EXHIBIT #ASU4 REPLACEMENT TABLE FOR CLAUSE 14.5.

PN20

MS WHITE: So, your Honour, the final - I will take you in a moment through the changes between the 17 November 2003 copy and the marked up copy but the award is to be known as the Australian Airlines ASU Award. Filed with the proposed award also were a letter dated 17 November 2003, signed by Michael O'Sullivan, National Executive President of the ASU, containing the statement required by rule 22, indicating that the terms of the proposed award by consent have been approved by the ASU. Similarly a letter was filed, dated 13 November, signed by Mr Gordon McKirdy who is the head of Customer Service, and people at Australian Airlines, also containing the required statement under rule 20(2).

PN21

THE SENIOR DEPUTY PRESIDENT: Yes, I acknowledge those documents.

PN22

MS WHITE: It is submitted that the proposed award that I will take you through in its final form, tendered today, complies with the requirements of section 143(1)(c) and section 143(1)(d) of the Act and we also will submit that the award consists only of allowable matters under section 89A(2) and incidental matters that are necessary for the effective operation of the award pursuant to section 89A(6). So, your Honour, if I take you now to the marked up copy of the award and take you through the changes that we have made. Your Honour, the first change is at clause 3.3.2 where we have deleted some surplus words that were no longer necessary. We then make changes at clause - sorry, we have also re-ordered that clause so it is - sorry, back again.

PN23

Then to clause 4 which we have done two things to, which we have re-ordered so it is now alphabetical, and we have made changes to what is the now clause 4.5, we have changed Australian Airlines to comply with the definition in 4.4. Then, your Honour, if I take you to clause 8.23. The previous word at 8.23 was "may" and we have substituted the word "will". Then at 8.4.3 and 8.4.4, these new clauses have been added because of some changes I will take you to at clauses 18 and 19. These new provisions are consistent with the provisions in the Metal and Engineering and Associated Industries Award, a 1998 decision, in relation to facilitative clauses.

PN24

Your Honour, it is not the full clause but it is a clause that is very similar to the clauses in there in effect and suits the purposes of the parties in this matter. At 8.4.5 - 8.4.4 I think it should be - - -

PN25

MR FARROW: 8.4.4?

PN26

THE SENIOR DEPUTY PRESIDENT: Yes, it has been renumbered, hasn't it?

PN27

MS WHITE: 8.4.5, the numbering - and the numbering has been changed because it has been added and in the body of the subject matter facilitative clause numbers have been changed and added - changed the numbers of the clauses to correctly reflect the clauses. The next is at 12.1.3.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes.

PN29

MS WHITE: To that we have added the words "and 12.1.2" in the first line. At 12.1.6, which is the next change, that has been deleted as it was not allowable. At 14.5, the next change, we have moved - in the previous proposal there was a schedule and we have now moved the rates into the body of the award and, your Honour, those rates in the marked-up copy ASU2, the rates should be substituted with ASU4.

PN30

THE SENIOR DEPUTY PRESIDENT: I see, yes, even what is in ASU2 has to be changed.

PN31

MS WHITE: It does, your Honour.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes.

PN33

MS WHITE: Our skill as word process operators was not sufficient to put it in; and, your Honour, so it has changed. The reason for the change, your Honour - I might address that matter here now - is that we had incorrectly - the intention of the parties was to have at level 2 the 100 per cent metal trades rate and we had put the wrong rate in; and so the relativities in this table for the rates are fixed to the actual rates, C10, being 100 per cent in the Metal Industry Award.

PN34

THE SENIOR DEPUTY PRESIDENT: I see.

PN35

MS WHITE: So the relativities are correct and reflect what is in that award.

PN36

THE SENIOR DEPUTY PRESIDENT: Good.

PN37

MS WHITE: Also in 14.5, your Honour, we have made an adjustment to the second line and just referred only to the May 2003 safety net review decision rather than what was there previously. The next clause is 15.4.1. At that clause, which deals with uniforms, we have recast the wording of that to make it allowable.

PN38

THE SENIOR DEPUTY PRESIDENT: That is right. It is a pedantic point, that one, but it is so well-entrenched that you can't ignore it.

PN39

MS WHITE: Yes, it was a problematic clause initially, too, your Honour, so - - -

PN40

THE SENIOR DEPUTY PRESIDENT: Was it?

PN41

MS WHITE: Yes, but we have certainly cast it in a way that it is now allowable.

PN42

THE SENIOR DEPUTY PRESIDENT: You have.

PN43

MS WHITE: At 17.1.3 we have now added the word "consecutive".

PN44

THE SENIOR DEPUTY PRESIDENT: That was just missing.

PN45

MS WHITE: Yes. At 18.2 we have deleted reference to an agreement with the ASU and changed the words slightly. Similarly, at 18.4 we have deleted the word "ASU" and also made reference to the agreement of the majority of the group of employees, which links into the previous facilitative clause. At 19.2 we have changed the word "subsection" in the second line to "provisions". At 19.3.1 we have again deleted the references to the agreement with the ASU. Similarly, in 19.3.2 we have deleted the agreement with the ASU as well.

PN46

At 20.6, in the fourth line we have changed the word "has" to "have". Then at 22.3.3. we have changed the word "a" to "an". At 22.5.2, "a" in the first line, we changed the word "a" to "an employee". Then at 23.1.1 we have added a definition of spouse to this clause. And if I deal with this clause, this clause is not the test case standard exactly but it is a clause that the parties are happy with between us and reflects closely what the flight attendants have to a significant extent and the parties are happy and would submit that we would prefer this version of this parental leave clause in our award. It has also been changed to comply with the casual employees receiving parental leave as well.

PN47

In relation to 23.5, in the first line the word "a" has changed to "an". At 23.7.2 we have deleted the word "to" in the last line, and at 24.1, in the first line the word "a" has been changed to "an". Finally, the schedule A is deleted and, as previously indicated, moved to clause 14.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes. I think when it is such a simple provision it is better for it to be in the body of the award.

PN49

MS WHITE: Yes, it certainly looks better that way.

PN50

THE SENIOR DEPUTY PRESIDENT: Some of those rates schedules are very complicated and you can understand them being hauled out of the award, but that one is quite straight forward.

PN51

MS WHITE: So, your Honour, that is the matters that I had proposed to address in relation to the changes that have been made to the award and the substantive submission. Unless there is something further that your Honour - - -

PN52

THE SENIOR DEPUTY PRESIDENT: No, Ms White, I don't have anything of you. Mr Farrow?

PN53

MR FARROW: Your Honour, I don't have anything to add to the submissions of my colleague.

PN54

THE SENIOR DEPUTY PRESIDENT: All right. I don't know. We will go off record.

OFF THE RECORD [11.25am]

RESUMED [11.26am]

PN55

THE SENIOR DEPUTY PRESIDENT: I am satisfied by what has been put in a documentary fashion and on the submissions made this morning that the award should be made. I will publish my reasons, which will be relatively brief. The award will take effect on and from today's date and will remain in force for a period of six months. I can now move to the second matter involving these two parties. I will have it called.

ADJOURNED INDEFINITELY [11.27am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ASU1 RECORD OF FINDINGS DATED 11/06/2003 PN12
EXHIBIT #ASU2 MARKED UP COPY OF THE PROPOSED AWARD PN16
EXHIBIT #ASU3 CLEAN COPY OF PROPOSED AWARD PN17
EXHIBIT #ASU4 REPLACEMENT TABLE FOR CLAUSE 14.5. PN20