C2004/2018, Transcript of Proceedings [2004] AIRCTrans 1082 (24 March 2004)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL O/N 9954

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

C2004/2018

NATIONAL UNION OF WORKERS

and

QANTAS FLIGHT CATERING LIMITED

Application under section 170LW of the Act
for settlement of dispute re the engagement
of casual employees and alleged incorrect
payment of wages and allowances

SYDNEY

2.50 PM, WEDNESDAY, 10 MARCH 2004

PN1

MR P. RICHARDSON: I appear for the National Union of Workers with MR S. CAIN.

PN2

MR J. McKENZIE: I appear for Qantas Flight Catering Limited. I understand the notice is directed at Qantas Airways but the substantial dispute in relation to the casuals is actually with Qantas Flight Catering Limited, Commissioner.

PN3

THE COMMISSIONER: Yes. Yes, Mr Richardson?

PN4

MR RICHARDSON: Thank you, Commissioner. Commissioner, at the outset if I could express the appreciation of the union of the listing this matter at a time that was convenient so that I could attend the hearing and could I indicate that in respect of the two matters, the second of which went to the incorrect payment of wages and allowances, that I have been advised earlier today that the specifics referred to in the notice as to the incorrect payment of certain allowances has been rectified in employees pay today.

PN5

However, I have also been advised that some 50 or so employees of the company engaged in Melbourne have not been paid their overtime or shift loadings, however discussions are occurring as we appear before you in respect of that matter and as such the union doesn't seek to press that part of its application. Put another way, we seek to simply address the issue of the engagement of casual employees within Qantas Flight Catering Limited in this afternoon's proceedings.

PN6

Commissioner, at the outset, I note Mr McKenzie's point about for whom it appears. It does appear that Mr McKenzie did not receive a copy of the union's notice nor a copy of the Commission's notice of listing. However, for the record the notice as filed indicates that the dispute is with Qantas Flight Catering Limited and simply identifies Mr McKenzie as the appropriate manager who normally has carriage of those matters.

PN7

Commissioner, I don't seek to make lengthy submissions however it would be known to the Commissioners presently constituted that there were several occasions during 2003 during which we appeared before you over various matters including the engagement of casuals and temporary employees within the catering centre. The Commission may recall that in a sense those matters culminated in a decision of the company in the second half of last year to out-source the significant part of its stores operations and there was some degree of disagreement between the parties about that out-sourcing should occur.

PN8

However, on a number of occasions and I will refer to them in brief shortly, the Commission made observations as for the need for the parties to regularise or formalise arrangements in respect of casual and temporary employees and that has not occurred. I would seek to tender a bundle of letters, or a bundle of correspondence between the parties from 2 February onwards.

PN9

THE COMMISSIONER: Yes.

PN10

MR RICHARDSON: I am not sure if one wishes to mark that as one exhibit or as separate exhibits?

PN11

THE COMMISSIONER: We will do it as one exhibit, exhibit NUW1.

EXHIBIT #NUW1 BUNDLE OF LETTERS BETWEEN THE PARTIES FROM 2 FEBRUARY ONWARDS

PN12

MR RICHARDSON: Thank you, sir. The exhibit NUW1 is correspondence between Qantas and the union and Qantas Flight Catering and the union and also the union back to the company. The first letter which is dated 2 February is and is signed by Ms Sue Bussell the head of industrial relations of Qantas, advises the union that with effect from approximately the end of May 2004 that the duty free service currently performed by employees within Qantas Flight Catering Limited will cease and that that work will be out-sourced to a provider known as Alpha In-flight Retail.

PN13

The correspondence provides some detail as to the rationale for that decision and indicates that it is not anticipated that any redundancies would occur as a result of the change. The second piece of correspondence with is the third page of the exhibit is a letter addressed to myself and signed by Mr Rob Harden, the Human Resource General Manager for Qantas Flight Catering and dated 23 February. In that letter Mr Harden refers to Ms Bussell's letter of 2 February and indicates that there is a need or desire to retain two casuals to continue to provide a service within the in-flight operation until or at least it is implied, the end of May when that work will be assumed by the successful tenderer.

PN14

Importantly, in our submission, Mr Harden goes on at the last paragraph to say, and I quote:

PN15

Since the break-up of the former stores department in March 2003 it has been alleged that we have been breaching the casual agreement. It is our view that the break-up of stores has rendered that agreement null and void. We need to discuss a new arrangement with you that suits the revised structure of the business. In the meantime we are applying the same casual arrangements that apply in the rest of the business.

PN16

I end the quote there.

PN17

Upon receipt of that letter I had a phone conversation with Mr Harden where I took issue with the fact that the existing casual agreement no longer applied, but also indicated that if the business sought to discuss a new arrangement it should provide detail of such. Subsequently on 26 February Mr Harden provided the next piece of correspondence which was some seven or eight claims or issues that the company sought to discuss in respect to its operational requirements which included - or predominantly was focused upon the needs for casual labour going forward.

PN18

The union responded on the same day and a copy of that letter appears. That indicates that prima facie the union agrees - or the National office I should say, agrees with allegations that have been made by the New South Wales branch of the union that the company was in breach of the current arrangement and that the union did not agree that the existing agreement was null and void. More importantly though, we say, that the union also sought specific details in respect of the two casuals that Mr Harden had indicated that he - or the business, wish to retain and specifically we sought details as to the duties they would perform, the classification level that they would be paid at and confirmation that it was assumed that they would remain employed until the end of May 2004.

PN19

Mr Harden then provided a further response on 27 February which indicated that contrary to his earlier advice there not two casual employees engaged, but eight. In the second paragraph of that letter he characterised as "a pool of eight casuals" but then goes on to detail the various departments within which those casuals work. I could summarise the letter this way. Mr Harden says that there are two casuals engaged within the stores operation performing the duty free services, there are two casuals within the in-flight operation and that is the operation that is referred to in the prior correspondence contained within the exhibit.

PN20

There are three casuals engaged on the second page of the correspondence within the production area and there is one engaged within the supply chain area. So there are in fact eight casuals working within the business, not two as indicated in the earlier correspondence of 23 February. Sir, in other proceedings copies of the agreement between the company and the union in respect of casuals has been referred to, and I think tendered, but I would seek to tender a copy of that again. I would ask that that be marked as an exhibit as well.

EXHIBIT #NUW2 AGREEMENT BETWEEN THE COMPANY AND UNION

PN21

MR RICHARDSON: Thank you. Without going to the detail of the exhibit, this is an agreement that has been in place since early 1999. I note that the copy that I tendered is only signed by one of the two parties, but if need be, I can refer the Commission to other proceedings where the status of this agreement has not been disputed by the company. In essence, it provides for up to five casuals to be employed, and for those casuals to be employed within the in-flight section of the catering store, and also prescribes in some level of detail and, in fact, no doubt, the company will say restriction, the duties that those casuals can employ.

PN22

That appears generally at clause 2 of the agreement, and at clause 5. In addition in clause 5 there is a provision that allows for an increase or an easing of the restriction on the number of casuals, but subject to agreement between the delegates and the company. No such agreement exists on this occasion, sir, and we would say based on the material before you that the company is acting contrary to the existing agreement.

PN23

Towards the end of the exchange of correspondence between Mr Harden and the union there are also discussions between Mr McKenzie and myself, and one particular issue that was discussed between Mr McKenzie and myself was the fact that Mr Harden's letter of 27 February not only disclosed that there were more casuals working within the business than the agreement provided for, but on each occasion indicated that the company would convert those positions to temporary positions.

PN24

If I could be colloquial, sir, the response of the union was: well, the union has found you out, and so now what you are seeking to do is get around that by converting those positions to temporary positions. Again, without seeking to test too far the memory of the Commission, in the proceedings before you last year, and specifically one of those proceedings which occurred over three dates in C755 of 2003, and the dates to which I'm referring were 21 February, 21 March and 12 May.

PN25

There was a consensus between the parties and, in fact, on one occasion observations from the Bench that the terms of the current certified agreement required the agreement of the union in respect of the engagement of casual employees, required the agreement of the union in respect of part-time employees, but required no more than a process of consultation in respect of the engagement of temporary employees.

PN26

The concern that the union has, and the concern that the union raised with Mr McKenzie was that Mr Harden's correspondence simply sought to overcome the alleged breach of the casual agreement by converting those positions to temporary positions. That broke down into two parts. Firstly, that Mr Harden's correspondence did not constitute proper consultation prior to the introduction of temporary employees, and was effectively designed to minimise or avoid any argument about the company's obligations under the existing agreements.

PN27

Mr McKenzie and I, in one of those discussions, exchanged proposed dates for meetings and, I think, at one stage, although Mr McKenzie may seek to correct me, the earliest that the relevant personnel from the company were available to meet was on or around 25 of this month. The union indicated that whilst the 25th presented no substantial difficulties for it, that there needed to be some understanding of what would occur between them then and that date. Mr McKenzie then came back and proposed a meeting for tomorrow. That is 11 March, which the union indicated was accepted to it.

PN28

Again, beyond not processing the placing of these casual employees as temporary employees, was not prepared to alter the situation as to the number of casuals within the business. Sir, the dispute settlement procedure within this agreement empowers the Commission to resolve disputes. That has not been an issue in previous proceedings between the parties presently before you, but also we say needs to be read in conjunction with the award. The award provision does not contain a provision in respect of status quo.

PN29

So the ability for the union to discuss the issues with the company without its position, and the position of its members, being prejudiced by the actions of the company is limited. That is why we come before you today. We say that the company is acting outside of the existing casual agreement. The company has indicated that it will avoid that ongoing breach by simply making these people temporary. It initially sought to do that without consultation. It has now offered some consultation, but certainly hasn't provided any detail as to what it requires.

PN30

Throughout this whole course of events it has been the union that has been initiating the dialogue. It is the union that has been making the phone calls. It is the union that has been chasing the company to try and establish dates for meetings, and the like. I would seek to tender a set of draft directions which we would ask the Commission to entertain that these have been provided to Mr McKenzie.

EXHIBIT #NUW3 DRAFT DIRECTIONS

PN31

MR RICHARDSON: Thank you, sir. In essence, these directions seek to do two things: to provide some form of interim relief to the union and its members, and then to set out a process for potential resolution of these issues. The first direction seeks that the company adhere to the terms of the relevant certified agreement and also the agreement as tendered, which is exhibit NUW2 with effect from the first shift tomorrow. That would have the practical effect of the company not being able to engage more than five casuals within the scope referred to at clause 2 of exhibit NUW2.

PN32

The second is that the company effectively be restrained from engaging or proceeding to engage any temporary employee as would otherwise be contemplated under clause 10 of the certified agreement pending proper consultation with the union. Sir, our concern is, and our concern has been, that the company will simply seek to convert the status of these employees and therefore avoid any argument as to for each of the agreement, or at least, limit it to a retrospective argument.

PN33

The third, fourth, and fifth directions go to the provision of information to the union, and an obligation upon the union to provide a written response within a total of a 14 day in time period and, of course, seeking that the rights of the parties are reserved to seek further assistance of the Commission, if necessary. Sir, in support of those draft directions we direct your attention to various statements made by the Commission as presently constituted in the matters last year.

PN34

Firstly, in the proceedings, and these are in 755 of 2003, on 21 February, and the Commission as presently constituted said, and I quote:

PN35

I must say the use of temporaries and casuals, or whatever, cannot be the ultimate solution to the proper employment of appropriate numbers in a workplace ... (reads)... is aware with the MMR -

PN36

that was the Middle Management Review from early last year, and then I quote again -

PN37

currently not completed a full and final picture of employment requirements is not possible at this stage, yet I consider that much can be settled ...(read)... so that the parties can exchange their views.

PN38

There were meetings between the parties, and as a consequence of that, the company sought to convert a number of people from casual to temporary. Those persons were underpaid, those persons were not employed in a manner consistent with clause 10 of the agreement, and on 21 March, the Commission issued four directions, most of which went essentially to ceasing the employment or directing the company to cease the employment of a number of temporary employees that have engaged contrary to the agreement, and directed that the parties meet again on 24 March with a view to resolving their differences.

PN39

Again, several meetings between the parties occurred but, again, it was recoursed to the Commission and in a further hearing on 12 May the Commission made, from approximately paragraph 505 through to 514, a number of observations, including the observation that whilst the employer had the right to seek amendments to the existing casual agreement - that was exhibit NUW2 - it needed to do that first. Then there was obviously a question of whether he union would agree to those changes or not, but that the rights of the parties were reserved under the dispute settlement procedure.

PN40

Sir, the union does not deny that the relationship between the parties has not been an easy one. In fact I think we have said that before. But on each of those occasions the union has indicated a willingness to discuss the needs of the business. The union acknowledges that the ability to deliver an agreement on those needs has not been easy. It has not been easy because of the views of many of the employees who are or were members of the union, but it has also not been easy because of the continued change that the company embarks upon.

PN41

The Commission will hopefully recall that there were a number of initiatives last year, including the middle management review, that consistently meant that the company needed to change its operational requirements. However, we find ourself now, having experienced some 50 or so redundancies, that there are still a number of casuals engaged in the business, despite the fact that we were told that those positions would cease on or around the end of November, and a tender process would occur. We find ourselves in the position where not only are those casuals still engaged, but they are engaged contrary to the agreements applicable to the parties.

PN42

The patience of the union is exhausted. We would strongly encourage that directions or recommendations in the form as tendered be issued so that some relief is afforded to the organisation that is the applicant in these proceedings. If the Commission pleases.

PN43

THE COMMISSIONER: Mr McKenzie?

PN44

MR McKENZIE: Thank you, Commissioner. Firstly I wish to apologise for the late attendance. It appears that some items of correspondence have either not been received or been misplaced in the office. I will obviously have to remedy that. It certainly is not our practice to be late in these types of proceedings. When we are advised, we made every attempt to get in here as quickly as possible. The issue that Mr Richardson raises, as indicated in the correspondence, has been discussed between the parties. You will notice that most of the correspondence has come from Mr Harden, who is the General Manager of Human Resources at QFCL.

PN45

The issue of engagement of casuals has come about following changes in circumstances of the operation following the outsourcing processes which is effectively complete. If I can take you to the letter of Mr Harden to Mr Richardson on 27 February, which is essentially the key piece of correspondence, as we would see it. The number of two was actually corrected, so when it was noticed that the actual numbers of casuals employed wasn't correct, then it was corrected by QFCL in its correspondence.

PN46

What Mr harden sets out is a number of reasons why we would be seeking to have additional labour. They relate to circumstances around either employees being absent on leave or operations being needed to be covered for a specified period. I had a discussion with Mr Richardson around this piece of correspondence and suggested to him that given that there are eight casuals, they are best employed as temporary employees. As I recall the discussion, the discussion was along the lines: well, if you actually engage these as temporary employees you are actually skirting around the casual agreement. We had agreed to meet.

PN47

It was then agreed that we would maintain these eight as casuals until we would be in a position to meet tomorrow and discuss the reasons why the company wanted to effectively renegotiate the existing casual agreement. The original proposal from the company was therefore to change the status of employment of these as temporary employees. That is acknowledged. Because that is more effectively what they would be, given the length of time they would be engaged. What was then proposed by the union was: no, leave it as it is until we have discussions. Those discussions were to proceed tomorrow.

PN48

That is the reason, Commissioner, why the company is somewhat surprised as to why we are here, when we say we had an agreed process for discussion. Obviously the notification is partly designed to put the union in a better position in negotiations tomorrow. The company believes it has a case to renegotiate the casual agreement. That case will be put to the union tomorrow. There are cases, we would submit, why it would want to employ temporary employees. Those reasons are partly dealt with in the letter of Mr Harden of 27 February.

PN49

What has been sought by the union in terms of a direction, we would think, is perhaps heavy handed and also premature, given that discussions have actually not even commenced yet in relation to this. What the union is seeking, we know, is an adherence to the existing casual agreement until those discussions take place. We also note, Commissioner, in the casual clause in the existing enterprise agreement in clause 9 at 9.5, the second paragraph:

PN50

The union will not unreasonably withhold agreement to amendments sought by the employer.

PN51

What, obviously, the company would be seeking, would be either to renegotiate or seek amendments to the casual agreement. It would be in a position to put those reasons to the NUW tomorrow. The second part of what it is seeking is essentially that there be no temporary employees until proper consultation takes place. Tomorrow is an opportunity for that to take place. The discussions around why they would want supplementary labour either temporary or casuals. So that is why we would submit if the Commission is considering issuing any directions, we would say that that is not necessary, because certainly the discussions will take place tomorrow in relation to both the casuals, and we would say, temporary employees.

PN52

The company is prepared to agree to a process of consultation, if necessary. In point 5, what we think the union is seeking to do - that is point 3 and 4, I'm sorry - point 5 in relation to the requirement to reach agreement on the use of non-permanent labour, we would say that the union is seeking to extend the operation of the existing EBA provisions to what they weren't intended. What they are seeking to do there is really - essentially get the QFCL to agree on the engagement of temporary employees. That is not what the enterprise agreement says in clause 10.

PN53

The temporary agreement clause requires the parties to consult. We would think that what the union is seeking, obviously, is to put the QFCL in the position where it one, probably doesn't get anywhere with its negotiations for a revised casual agreement and two, attempts to seek more control over the employment of temporary employees. Certainly, Commissioner, as stated by Mr Richardson, it has not been an easy road at QFCL as it relates to the employment of casual and temporary employees. We would say the circumstances in relation to why we have the number of casuals in the business we have at the moment relate to what has occurred since the outsourcing. They relate to those issues which were outlined in Mr Harden's letter.

PN54

If it is a point of getting to seeking some commitment to process, then the company is prepared to commit to process. What is required from the parties in relation to the revised casual agreement is just that. To sit down and, obviously, consult. I think the application today is also designed to perhaps put the company on the back foot as it relates to any business proposals it might want to put in relation to negotiating the casual agreement, recognising that the union can't unreasonably withhold its consent to changes to the casual agreement.

PN55

So, Commissioner, we would say that the parties had already agreed to a process. The process is that the discussions will take place tomorrow on those issues. I am happy to include the discussion around temporary employees in that process of discussion tomorrow. We think the union's application to the Commission is perhaps premature. If there is a dispute about employment of casuals after tomorrow's meeting, then obviously the union is at liberty to bring the matter back before this Commission. That may be the appropriate place to have either conciliation or, if necessary, an arbitration under section 170LW, but certainly it is premature at this stage, Commissioner.

PN56

THE COMMISSIONER: Mr McKenzie, there used to be a whole range of storemen 2FCO - bond stores and then food, frozen food etcetera, and then ..... this in-flight. What does all that mean exactly?

PN57

MR McKENZIE: The operations in stores has traditionally been broken up into two different areas prior to the middle management review and also to the outsourcing. There were a number of areas which were referred to colloquially as in-flight, as duty free, as bond store, as bulk store, as kitchen store and also what is called level 1 dock. They were actually all restructured in the middle management review when lines of responsibility were actually moved to what is now called production, pre-production and post-production.

PN58

Whilst those functions still may be referred to there are probably less levels - what happened of course at the time was a number of leading hands were made redundant so the levels of responsibility were moved. So most of in-flight has been outsourced. In-flight included areas which has now been outsourced essentially. Duty free, as Mr Richardson has indicated, will go at the end of May which is involving the packing of duty free cars essentially.

PN59

THE COMMISSIONER: Thank you, Mr McKenzie. Mr Richardson, how many members did the NUW have, let us say, at this time last year?

PN60

MR RICHARDSON: At this time last year - - -

PN61

THE COMMISSIONER: 2FCL, I mean.

PN62

MR RICHARDSON: Yes. At this time last year including the five casuals, approximately 90.

PN63

THE COMMISSIONER: That is right, yes; 90 is a figure that we looked at - some relevance, I can't remember what it was. And how many is there now?

PN64

MR RICHARDSON: Approximately 30 permanent weekly employees.

PN65

THE COMMISSIONER: When this change occurs with in-flight in May how many will you have then?

PN66

MR RICHARDSON: Based on Ms Bussell's letter of 2 February and assuming no other change, still approximately 30. The company's advice is no redundancy as a consequence of that change.

PN67

THE COMMISSIONER: There's eight casuals that are currently engaged. You say that as per the agreement there should only be five?

PN68

MR RICHARDSON: Correct.

PN69

THE COMMISSIONER: You say that what the Commission should do, you are happy to have discussions with the company about the numbers of casuals and anything else, and if they want to raise temporary employees they can do so, but I take it you are saying that at least until those discussions occur the casual number should be five?

PN70

MR RICHARDSON: That is correct, sir.

PN71

THE COMMISSIONER: And temporaries - if you have got temporaries now, good luck to them but no more at this stage. Right?

PN72

MR RICHARDSON: That is correct.

PN73

THE COMMISSIONER: What would happen to the work if instead of being eight casuals there's only five?

PN74

MR RICHARDSON: I'm not sure that I'm in a position to answer that fully other than to say obviously there would be a shortage of labour or it would create some operational difficulties for the business, and the union would acknowledge that point. But we would say that is why we seek relief. Currently the company says: we need eight people to do this work. The union is effectively coming here and saying no more than five should be allowed to do that work. On the face of it that presents a difficulty.

PN75

But to simply go into discussions whether it is tomorrow or next week and allow the company to continue to avoid its obligation under the existing agreement is a position that is not fair and is prejudicial to the union. If anything it would hasten the company to come to a view about what its requirements on non-permanent labour are if it faced those operational difficulties. So I accept the proposition that there are eight people there today and the Commission recommended or directed that only five should be there tomorrow but that presents difficulties for the business. I'm not sure that those difficulties are insurmountable though but I think that needs to be weighed against the business's obligations under the existing certified agreement.

PN76

MR McKENZIE: Commissioner, I can answer that question that you posed to Mr Richardson. My instructions are that there actually will be an impact on the operations if the additional labour was actually taken out for a period, and that would directly impact on client airlines and also Qantas. That is my instructions.

PN77

THE COMMISSIONER: What concerns me is that - I'm concerned about the travelling public yet here is Qantas who walked into this contracting out with its eyes wide open and I'm assuming, by the lack of files that have come to the Commission, that reluctant as they might have been the NUW have accepted that outcome. They might not have been happy about it, maybe there was some disputation but nothing that I know of. So you are getting it all your way and then we are supposed to turn a blind eye to the fact that you seem to be breaching the agreement.

PN78

MR McKENZIE: Commissioner, perhaps if I go back to what I said earlier, we had proposed in our process to the NUW which we thought was accepted - which was leave the numbers as they are until we discuss this tomorrow, acknowledging that the company wanted to renegotiate the casual agreement but also the original proposals put by the company that affect these people - they should really be engaged as temporary given the nature of the period of time they are going to be employed, but leave that aside for one time until we actually have the discussions. That was our understanding of the agreed process.

PN79

We had a notification before the Commission which the union are effectively asking for relief on that position which they effectively had agreed to. So hence we are somewhat concerned that we are here given that we are actually talking about this issue tomorrow. What arises out of tomorrow, and if there's no agreement - as I said if there's still a dispute then obviously the union has its rights to come back here before the Commission - we obviously are - - -

PN80

THE COMMISSIONER: Why should they? Why should unions do what you are supposed to do?

PN81

MR McKENZIE: I understand that, Commissioner.

PN82

THE COMMISSIONER: One outcome is if you can't service your client airlines and Qantas you will just have to put on three permanents. Why should I care about that?

PN83

MR McKENZIE: That is one option, Commissioner, that is correct. I go back to what I said, that is that the original proposal in relation to employing these people as temporary employees was suggested by the union: don't go through that process at this stage, leave them as casuals, then we will sit down and have a discussion. That is our understanding of the process but the union have stepped away from what we say was the agreed process and brought us here. So in one sense that - - -

PN84

THE COMMISSIONER: In a way - Mr Richardson can agree to a process of whatever he wants but if there's an agreement neither he nor Mr Cain nor anybody else - - -

PN85

MR McKENZIE: I understand that, Commissioner. One of the reasons to get a meeting quicker than what was originally proposed was because we actually - there's a recognition that the agreement is not being complied with. The NUW had been threatening to take - and I will be open about this - the NUW had threatened Qantas Industrial Relations to notify a dispute and bring it to the Commission. Then obviously the issue is that - resolve this matter rather than coming to the Commission, and resolve it in a way which the parties can be satisfied with given that the outcome which the company is actually seeking is to renegotiate the casual agreement.

PN86

We can go back to the starting point, however what the company will seek to do is obviously in its discussions seek to renegotiate the casual agreement. Commissioner, I understand the views clearly in relation to adherence to existing agreements but those discussions Commissioner, will be tomorrow.

PN87

THE COMMISSIONER: Yes, Mr Richardson?

PN88

MR RICHARDSON: Commissioner, rise to make a brief right of reply if I may. Firstly, Mr Cane advises me that there are other employees within QFCL and they would be those 30 or so members of the NUW who could perform those duties that would otherwise be performed by the additional casuals tomorrow. I don't seek to put too much on that because I certainly have conceded that there would be an operational difficulty for the business if the relief sought by the union were granted.

PN89

But I seek to clarify this, that the union acknowledges and I acknowledge personally that in a discussion with Mr McKenzie towards the end of last week we agreed to meet tomorrow. Stress the point though that originally the company wanted to meet on 25 March and that was because one of its participants was not available. There was no agreement beyond that though. Now the afternoon of last Friday, having discussed the matter with Mr Cain - and I add that I don't have any issue with Mr McKenzie. Upon reflection the union decided to proceed with this notice.

PN90

Now the Commission can draw its only conclusions and I appreciate that Mr McKenzie hasn't seen the notice, but I direct the Commission's attention to the fact that the notice is dated and signed by Mr Sword on 27 February, yet the covering letter is dated 1 March. Yet I don't believe it was received by the Commission until last Thursday. I think it was actually incorrectly forwarded to the Melbourne registry because his Honour, Deputy President Ives' associate originally contacted me and there was some confusion about a number of filed.

PN91

The reason I raise that is that going back in several discussions that I have had with Mr McKenzie I flagged to him that a notice of dispute was ready to be filed and Mr McKenzie's colleagues have taken their time to get back to us and that is of continued frustration to the union and dare I say, other unions. The other point that I seek to make and I simply make it in a rhetorical sense is this, I referred earlier to the fact that there was some discussions occurring in Melbourne today over the second part of this notice which relates the incorrect payment of wages.

PN92

The union has noticed an increased tendency on the part of Qantas to file for relief under section 127 when they believe that they are suffering disadvantage through action that is inconsistent with an agreement. there have been two matters before the Commission this year as I have always constituted between Qantas and other unions. One before Commissioner Richards in Brisbane and one before and I would stand to be corrected, Deputy President McCarthy in Perth. In other words, when the company believes that it is being prejudiced it seeks the relief that is available to it under the Act.

PN93

The union remains prepared to meet tomorrow but not in the context of the company being able to escape its obligations. Particularly, given that as early as February of last year this Commission had made recommendations and one occasion directions requiring the parties to address these issues. Now if need be, the union can lead evidence that would in our submission, prove the point that whilst there have been difficulties the union has never denied the company an opportunity to meet in an attempt to resolve these issues and I made some concessions earlier in by submissions to that effect.

PN94

But if we are going to proceed to hold discussions they should be on the basis that existing agreements are honoured and that the actions of both parties do not prejudice those discussions. I am happy given that Mr McKenzie seems to interpret it to mean something else. I am happy to amend the directions that we should seek at point 5 to simply indicate that leave is reserved to either party. In other words, it is not our intention that the company in respect of temporary employees does anything more than meets its obligations under the agreement. We do not seek - it is not our intention at point 5 in exhibit NUW3 to extend the rights that either party currently has, if the Commission pleases.

PN95

THE COMMISSIONER: What did you say about point 5, Mr Richardson of late?

PN96

MR RICHARDSON: It seems that Commissioner, Mr McKenzie thought that the construction of point 5 would mean that the parties meet to reach an agreement on temporary employment. That is what I understood Mr McKenzie to be saying. That is not the intent, the intent was simply that if we can't reach an agreement we return to the Commission if need be. My amendment is simply - I suppose in essence to delete point 5 and just have general leave reserved to the parties, if the Commission pleases.

PN97

THE COMMISSIONER: Yes. Well, I think I have made reference to some of my concerns and they are essentially that there is an agreement. An agreement and then a separate - what I might call Sydney site arrangements in relation to casuals. The company is well aware of that. The circumstances concerning the situation which it faces largely between now and May are of its own doing. I am not critical of it but it took the initiative of out-sourcing the certain of its work and then we find that in clear breach of the agreements, it is in fact, engaging more casuals than it is allowed and in circumstances where it is certainly aware of what the agreements say about the numbers of casuals and the Commission has had on a number occasions matters before it about that very issues.

PN98

I think it is a clear case of a breach. If this was the Court we wouldn't worry too much about how you fix it. We would just expect you to fix it. I just think that no matter how dramatic the consequences, there is labour at QFCL that is capable of doing - of meeting any shortfall. Now if there is a problem, if existing permanent staff put on some or indicate some lack of keenness to work as directed and perform reasonable shifts etcetera that puts Qantas in a difficulty, well then that is a different thing. But I see no evidence of that at least at this stage.

PN99

Consequently, I think I am persuaded and I will issue directions in accordance with exhibit NUW3 accepting that there will not be paragraph 5 and also that paragraph will just say that, would read:

PN100

that Qantas Flight Catering adhere to both agreements. There is now reason to say that it should occur with effect from tomorrow. I would just expect the company to do what it needs to do. Now, I recognise in saying that there is a meeting tomorrow. I trust that that will resolve the issue. If it doesn't however, then I expect the agreements to be adhered to.

PN101

There are means by which refusal by the union to agree to changes unreasonably can come back to the Commission or can be litigated just like there are proposals for extensions of temporary employees to be effected without agreement but after consultation. I would have thought that the time frame for the consultations which I think are partly entertained in items 3 and 4 of the directions address that. On that basis, therefore as I said, directions of the kind will issue shortly and will probably be afforded to you by tomorrow morning. On that basis these proceedings are now adjourned.

ADJOURNED INDEFINITELY [3.42pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NUW1 BUNDLE OF LETTERS BETWEEN THE PARTIES FROM 2 FEBRUARY ONWARDS PN12
EXHIBIT #NUW2 AGREEMENT BETWEEN THE COMPANY AND UNION PN21
EXHIBIT #NUW3 DRAFT DIRECTIONS PN31