C2004/2187, Transcript of Proceedings [2004] AIRCTrans 3193 (16 August 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 12886

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

C2004/2187

THE AUSTRALIAN LICENSED AIRCRAFT
ENGINEERS ASSOCIATION

and

QANTAS AIRWAYS LIMITED

Application under section 170LW of the Act
for settlement of dispute re duty travel,
etcetera

SYDNEY

1.36 PM, THURSDAY, 5 AUGUST 2004

Continued from 1.6.04

PN678

THE COMMISSIONER: Can I have the appearances again, please?

PN679

MR C. RYAN: Commissioner, I appear for the Australian Licensed Aircraft Engineers Association and with me today is MR D. BURRELL, if the Commission pleases.

PN680

MR D. MILLS: If it please the Commission, Qantas Airways Limited and appearing with me I have MR P. COUSINS, who is the Manager of Line Maintenance for Queensland for Qantas Airways Limited.

PN681

THE COMMISSIONER: Yes, Mr Ryan, did you ask for it to be re-listed?

PN682

MR RYAN: Yes, Commissioner.

PN683

THE COMMISSIONER: Where are we?

PN684

MR RYAN: Just to recap briefly on history. Initially in terms of the Commission involvement the ALAEA lodged an application under section 170LW seeking the involvement of the Commission on 5 March 2004 and subsequent to that application proceedings took place in Brisbane in early May, I believe it was the 4th or 5 May, at which proceedings took place in conference before yourself, Commissioner and arising out of that there was an undertaking given by the employer that they would communicate sometime after those proceedings with the association and be proposing some mechanism to resolve the matters that had given rise to the issue before you.

PN685

Subsequent to that hearing and this correspondence I've actually provided previously to the Commission. On 3 June I received a letter from Mr Mills which was the letter that had been essentially talked about in terms of the proceedings earlier in May in Brisbane. In that letter, which you have so I won't read through it, but in that letter there is a proposed, or what purports to be a proposed mechanism for resolving the issue.

PN686

In the view of the ALAEA, Commissioner, it fails to resolve the matter in an unacceptable way and I subsequently wrote to Mr Mills on 18 June 2004 in response to his letter and indicated that in our view his proposal did not provide a satisfactory mechanism to achieve a resolution. In fact the resolution of the matter to do with Mr Burrell and Mr Stevens in our view should have been dealt with as a stand-alone issue, it revolves around the payment of overtime for travel on a rostered day off, for payment of overtime for travel on that day.

PN687

There was a separate issue that was related and tied up with this which was the matter of travel where the airline - travel on the airlines flights where the airline did not have available the class of travel which is that which is defined in the awards and agreements as being the appropriate class of travel when people are travelling on company business, on duty for the company. We indicated in Brisbane, and we've indicated subsequently to the company that we are, and I said in that letter - I will take you to the second last paragraph, Commissioner - we reiterated our willingness to engage in discussions on that particular issue with the company. However, we were not inclined to accept the situation where - and we are still not inclined - to accept a situation where the matter of an award which we say is a clear award agreement based entitlement for the two members concerned. The resolution of that matter is made contingent on the acceptance by the association of an outcome in a different matter which has not even been discussed with the association, let alone agreed, as I say in the letter. That essentially is where we are up to today.

PN688

In discussions prior to proceedings commencing this afternoon, Commissioner, I did indicate to my colleague Mr Mills that we were anxious on the basis that this matter has now been on foot for a considerable period of time since the middle and latter stages of last year, that the issues surrounding the appropriate level of payment from Mr Burrell and Mr Stevens should be resolved and we would like to see those resolved today, we would hope in an amicable fashion. However, if the company is not prepared to resolve in that fashion we would be seeking to proceed to have the matter determined in terms of the application of the agreement this afternoon and certainly we are prepared to engage in a process or to commence a process of discussions on the broader issue of the travel where the company does not available to it on a given day the travel at the class required or indicated under the award and the agreement that the members of the ALAEA employed by Qantas work under.

PN689

By way of preliminary comments that's essentially where the ALAEA is, Commissioner, and that's what I expressed to Mr Mills prior to commencing proceedings today. I think I will just leave it there for the time being, Commissioner.

PN690

THE COMMISSIONER: Yes, Mr Mills?

PN691

MR MILLS: Commissioner, I'm reasonably comfortable learning of the history of the matter and that is that Mr Burrell on advice from the Australian Licensed Aircraft Engineers Association chose not to fly home on a seat that was available in economy class and chose to wait for a flight later in the day where there were business class seats but by the time he went to get that flight were no longer available and he then sought to get on a flight economy that afternoon and there were no longer any seats available at all and therefore he stayed overnight at the company's expense which included accommodation and allowances in accordance with relevant provisions of the enterprise agreement and agreed processes between the company and the ALAEAs members. Then flew out the next day back to Cairns. The company provided obviously payment for accommodation and allowances and also provided an additional day off.

PN692

He claimed for overtime and one of the things we discussed last time was overtime including the day off and there would be to be given up. That was off the record, that was in a conciliation so if Mr Ryan wants to respond to that then he can and I don't seek to raise things publicly that were necessarily addressed in conference but I think it is appropriate just to by way of allowing for history and as I said I will allow Mr Ryan to respond to that particular point if he so chooses.

PN693

To our understanding the key provision that the parties is relying on is clause 26, travelling and accommodation of Part C conditions of employment of the relevant enterprise agreement which is enterprise agreement 4. The parties have always acknowledged that it was their choice that previous EBAs would continue. I know there has been some conjecture about that particular issue in discussions or matters before the Commission previously but for this particular process I think both parties would concede that clause 36 certainly the EBA 4 would apply and in the event that the Commission was of a view that EBA 4 may not be comfortable with the application of EBA 4 a similar provision certainly exists in the 1994 Licensed Aircraft Engineers Award. I think the flavour of the clause is consistent regards of which industrial instrument we deem applies appropriately for these proceedings.

PN694

In clause 26.1 of Part B - Commissioner, do you have a copy of it?

PN695

THE COMMISSIONER: No.

PN696

MR MILLS: Mr Ryan has kindly provided with an excerpt, I appreciate his assistance in this matter. He may not wish that to be placed on the record.

PN697

THE COMMISSIONER: Yes.

PN698

MR MILLS: The key point is outward and home bound travel shall be at the same priority level and the standard shall be in accordance with existing procedures pending Qantas rationalisation of travel. Now, there is a key point here and we don't choose to necessarily go through it at this particular stage but rather address it in conference and then if need be placed it back on the record and that is, whatever class or whatever priority an employee was booked in on the way to a particular training which I think in this case is the class that an employee would be booked on in return.

PN699

That's the key issue between the parties in the sense that the argument from us is that there is a difficulty that we have in relation to this and that is that all economy class aircraft where there is a seat available for an employee to return then the employee should take the opportunity to return because that is the key issue, they key issue is employees to and from particular locations.

PN700

The key point raised in the correspondence of 3 June 2004, I don't know if particular attended, the matter is on the Commission's file by virtue of Mr Ryan having sent it to you and I think both parties are familiar with that particular correspondence, it would be the company's view in particular in the second paragraph, we have made an offer to pay the overtime but what we are seeking to do is where possible there may be a need to travel on one of these flights unless there is a two configuration flight with available J class seats scheduled to operate within two hours of the proposed duty travel departure time.

PN701

We've looked at Mr Burrell's Mr Stephen's circumstances independently of this request, okay, but then assume that this request was to apply. If the ALAEA were to concede that this was appropriate then Mr Burrell and Mr Stephens would still require to be paid because the key point here is they did wait for up to two hours and unfortunately for them that aircraft no longer had business class seats available. We would say that we could have forced them once again to take economy and we didn't.

PN702

So, even if the ALAEA agreed to this Mr Burrell and Mr Stephens would not be disadvantaged, they would still receive payment under this particular understanding. We are saying we are quite happy to make payment but payment is made on the basis that the ALAEA acknowledge that what is proposed is something that the company can apply if necessary because it's the company's view and it's the company's concession that it has an obligation to get employees home. It must make seats available.

PN703

By virtue of the fact that the ALAEA had been able to win certain priorities in relation to priority upgrades or seating priorities on the basis of their membership gives them access to a business class seat. That's not denied but the key fact is that all the company is asking for is that Mr Burrell and Mr Stephens can be paid. An offer is very clear. We are just seeking some flexibility around the operation or being able to get people home or to and from wherever they are required to be, where there is an all economy class configuration.

PN704

The matter can be resolved quite simply on that basis, that's really the company's position. In relation to what else we may choose to argue it's our view that the parties need to go into conciliation before we proceed too much further to thrash some of these issues out and if the parties want to continue then they are free to make representations to you as a result of that. Mr Ryan may wish to respond to my comment about taking the RDO back or he may wish to canvass that before you in conference but I think that articulates the company's position.

PN705

We have made a genuine offer to resolve the matter by making payment contingent upon some flexibility around the operation of moving people to and from when we have an issue around all economy class configuration aircraft. Even if you look at the letter of 3 June we are not suggesting that employees can't wait for additional two hours of they know there are business class seats on the flight after that, they still have that capacity to make that choice which, as I indicated to you would not have in any way disadvantaged Mr Burrell or Mr Stephens in the event that it occurred.

PN706

However, the situation that we had that the company would be faced on a regular basis if there was not agreement from the ALAEA with a circumstance where employees could wait at the company's expense for a business class seat for a lengthy period of time which is an event what happened to Mr Burrell despite the fact that there were economy class seats available to him on two separate flights before they realised that there were not seats available on the evening. May it please the Commission.

PN707

THE COMMISSIONER: Thanks. Should we go into conference, Mr Ryan.

PN708

MR RYAN: Commissioner, could I just say a few words because I think there are some factual inaccuracies or rubberiness in what Mr Mills has said quite inadvertently. I understand from Mr Burrell that this issue of the RDO, I don't understand how it has come up. As far as Mr Burrell is concerned he hasn't been given an RDO so there is no real purpose, there is no question in having to give it back. The question has always been one of an overtime payment in accordance with the award and agreement provisions that apply in these circumstances.

PN709

As for outward and home bound travel be at the same priority level, that provision is actually designed with a view to preventing an employer should they so choose sending an aircraft engineer out to rescue an aircraft or to perform some duty on behalf of the company at a high priority level to make sure they get there to attend to that work and then bringing them back at a lower priority or wait listed or whatever because that work has now been performed and the engineer getting back to the home port is not really that important for the employer at that time.

PN710

That's the basis of that provision and I understand on this occasion Mr Burrell chose for reasons that were to do with the timing of the training to accept travelling down from Cairns at economy That's quite a different thing from the intent of the provision in 26 that Mr Mills referred to. Essentially, I would like to reiterate that our position is that the two matters should be separate.

PN711

We have throughout this whole process indicated a willingness to discuss from a clean sheet basis with the company the matter of travel on flights where or on occasions be it days or hours when there is no appropriate standard or level of class of travel is not available for engineers who are travelling on duty and that duty arrangement - the standard of travel is not something which has been won, as I think Mr Mills said, it is a matter of a company policy that has been developed over many years. There is a define procedure and policy and we are merely seeking that that be applied in this case.

PN712

I would submit, Commissioner, that it's becoming, the drawn out nature of this matter is becoming unduly burdensome on both Mr Burrell and Mr Stephens and the matter should be resolved as far as those individuals are concerned and as I have said to Mr Mills we are quite happy and prepared to go into detailed negotiations with the company on a clean sheet basis on the matter of travel when there single class aircraft are the only aircraft that may be available in given circumstances.

PN713

That would be all I want to say at this stage, Commission and maybe if we could move into conference.

PN714

THE COMMISSIONER: Yes, we will go into conference.

SHORT ADJOURNMENT [1.57pm]

RESUMED [2.31pm]

PN715

THE COMMISSIONER: Yes, Mr Mills.

PN716

MR MILLS: Commissioner, thank you for the opportunity to break into conciliation. The parties have had a chance as a result of that conciliation process to have a discussion about the appropriate resolution of this matter and deal with ongoing issues that come out of the matter itself. There are two issues at hand, one is the immediate issue of the resolution of the payment of overtime for Mr Burrell and Mr Stephens. The company made an offer to resolve that matter on the basis of the ALAEA conceding a position around the category of flight where there is an over excess of economy class aircraft.

PN717

The company is prepared to make payment to Mr Stephens and Mr Burrell, split the issues apart and let that matter be dealt with and reparation will be made and then the company will endeavour to have discussions with the ALAEA about the wider issue of how to deal with a growth of movement towards economy class configuration aircraft. May it please the Commission.

PN718

THE COMMISSIONER: Mr Ryan.

PN719

MR RYAN: Commissioner, from the ALAEA perspective we wish to put on record our appreciation of the time, the assistance of the Commission in the conciliation process. We understand Mr Mills to be saying that Qantas will resolve the issue of Mr Burrell and Mr Stephens specific issue which is a claim for overtime for a day travelling on a rostered date in its own right.

PN720

For its part as outlined in previous correspondence to the company the ALAEA is prepared and willing to sit down and discuss with the company the other issue which is to do with the travel, class of travel on occasions when on a given day there may not be travel available at the class of travel which is usually provided for licensed aircraft maintenance engineers travelling on duty travel, be that before or after training or be that on aircraft rectification or be that on other company business purposes.

PN721

We would await correspondence or contact from the company to initiate those discussions and we will, I will then discuss or raise that matter with the Federal Executive Officers of the Association and I indicate that advice to the executive will be that we each could sit down and have those discussions in the spirit in which it is appropriate which is recognising some of the developmental issues within the airline industry and some of the difficulties the company faces in providing the usual class of travel in specific circumstances and we will engage in those discussions in the way we normally do with the company which is on a clean sheet basis and on a good faith basis. If the Commission pleases.

PN722

THE COMMISSIONER: The Commission notes the agreement between the parties and in the circumstances the matter is now adjourned without a further date being set. Thank you.

ADJOURNED INDEFINITELY [2.36pm]