C2004/293, Transcript of Proceedings [2004] AIRCTrans 3992 (15 October 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 14102
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

C2004/293
C2004/294
BP2004/236

THE AUSTRALIAN WORKERS' UNION

and

QANTAS AIRWAYS LIMITED

Application under section 170LW of the Act
for settlement of dispute re alleged failure
of the company to apply the terms and conditions
of the Qantas Airways Limited (AWU, AMWU)
Enterprise Agreement to employees at Hangar
131 at Sydney Airport

THE AUSTRALIAN WORKERS' UNION

and

QANTAS AIRWAYS LIMITED

Notification pursuant to section 99 of the Act
of an industrial dispute re alleged failure of the
company to apply the terms and conditions of the
Qantas Airways Limited (AWU,AMWU) Enterprise
Agreement to employees at Hangar 131 at Sydney Airport

NOTICE OF INITIATION OF
BARGAINING PERIOD

Application under section 170MI of the Act
by The Australian Workers Union re initiation
of bargaining period

SYDNEY

11.10 AM, WEDNESDAY, 6 OCTOBER 2004

PN1

MS M. LAMBERT: I appear for the Australian Workers' Union, also with me appearing today is MR J. FREUDENREICH, union delegate from Hangar 131 and also MR V. RASCHELLA, the other union delegate from Hangar 131.

PN2

MR P. STYLES: I appear for Qantas Airways Pty Limited.

PN3

MS R. FLANAGHAN: I appear for the Liquor Hospitality and Miscellaneous Union.

PN4

THE COMMISSIONER: Yes. Thank you. Yes, Ms Lambert.

PN5

MS LAMBERT: Thank you, Commissioner. First of all, I would like to thank you for listing these three matters today. These three matters are totally different in relation to the Act. They are, in substance related to the same dispute and if the Commission pleases, I would like to take you briefly to a time line of events that have led us to this position today. The Australian Workers' Union represents 25 people who work in Hangar 131 at the Mascot Airport in Sydney. In Hangar 131 there are two groups of workers. There is actually a physical division down the centre of it.

PN6

On one side are our members who belong to the fabric section, are aircraft workers and deal with the maintenance, repair and other means of attending to the seat covers on aircraft. On the other side of the division are largely members of the LHMU, who have a different set of duties to those that our members do. Traditionally, we believed that our members in Hangar 131 have come under the Australian Workers' Union/AMWU Qantas Enterprise Bargaining Agreement and it was in relation to this matter that we have put the three disputes in before you today. When the company first indicated that our members employed in Hangar 131 at Sydney Airport, Mascot were not to be regarded as coming under our agreement, the union delegate who is here with me today, Jason Freudenreich, approached the local Site Manager, Graham Johnson, and the matter was placed in dispute.

PN7

The disputes procedure as per both the relevant award and agreement have been complied with and there have been a number of meetings, letters, telephone calls and communications between the company and the union in relation to this matter since late 2002. The company have maintained their position that they wish our members to come under the LHMU Agreement which is a totally different agreement to the AWU/AMWU Agreement. Now, I would like to take you through some of the incidents which give rise to why the Australian Workers' Union and our members in Hangar 131 believe that we are covered by the AWU/AMWU Agreement.

PN8

One of the delegates here today, Mr Freudenreich, was in fact on the negotiating committee for the AWU/AMWU Agreement, which was certified in June this year and Mr Freudenreich was in fact given leave - paid leave from the company to attend negotiating committee meetings. The people in this area's payslips until the last pay referred to classifications as per the AWU/AMWU classification structure, however, we do acknowledge that many but not all of the people there were actually paid the rate of pay which came under the LHMU Agreement. Nevertheless, payslips were structured in such a way - and I have some of them here today, Commissioner - which would indicate to our people that they were being paid under that agreement.

PN9

The Australian Workers' Union have traditionally had membership in this area and we have no disagreement or problems with the LHMU over who has coverage in which part of Hangar 131. We have always believed that these people were covered by our agreement and we are very unhappy that these people are now being regarded by the company as not coming under that agreement. There were a number of options open to us when the company decided that there was no way they would give our members the benefits of our agreement and one of those options was to seek to bargain as part of the LHMU Agreement, which is near finalisation, I believe.

PN10

I'm not 100 percent certain. I'm sure that their representative here today can talk about that. It was not our first point of resolution for this matter. Our desired remedy is that our people there remain, as they believe they have remained, and as we believe the coverage as per the two agreements which I'll take you to covers them, that they should be allowed to continue to come under the AWU Agreement. If we look at the coverage under the LHMU Agreement, and I'm sorry to take this to you because I do not have a spare copy for you, Commissioner and I apologise for that, but I can read just a section to you if that's - - -

PN11

THE COMMISSIONER: Yes.

PN12

MS LAMBERT: - - - all right with you. Thank you. Under clause 3 of the Qantas Airways Limited and LHMU Enterprise Agreement No. 6 it says:

PN13

Parties bound and incidents of agreement.

PN14

3.1 Parties bound: This agreement will be binding on Qantas Airways Limited. The ALHMWU and all persons whose employment is at any time subject to this agreement.

PN15

3.2 Scope and application: This agreement ...(reads)... at attachment 1.

PN16

Attachment 1, Commissioner, just deals with the rates of pay. If we go back to:

PN17

A. Are employed as aircraft workers in the utilities or steam clean areas.

PN18

We would say that our members in Hangar 131 are employed as aircraft workers but they are neither in the utilities nor the steam clean areas. If we go to the AWU/AMWU Agreement certified by yourself on 7 June this year and we look at parties bound, which is clause 3 - - -

PN19

THE COMMISSIONER: Four.

PN20

MS LAMBERT: Four. I apologise, Commissioner:

PN21

This agreement will apply to and be binding on Qantas Airways -

PN22

which is 4.1.1, 4.1.2:

PN23

The Australian Workers Union herein AWU and the Automotive etcetera Union herein AMWU -

PN24

and it goes on further to state:

PN25

In relation to employees of Qantas or QDS who are covered by one of the awards referred to in clause 4.3 below -

PN26

And taking the Commissioner to 4.3 below, we would like refer the Commission to Airline Operations Qantas Airways Limited Award 1999 but I'll come back to that in a minute Commissioner but I just take you to that.

PN27

Further down we say our members are covered by 4.1.5, are members or eligible to be members of the AWU or AMWU, and we believe that the people in Hangar 131 certainly are eligible to be members of the AWU. But going further down to the Airline Operations Qantas Airways Limited Award 1999, that particular award refers to fabric workers. It refers to fabric workers under - - -

PN28

THE COMMISSIONER: Where is that, sorry?

PN29

MS LAMBERT: The Airline Operations Qantas Airways Limited Award 1999, AW765516. In clause 20 of that award, to which we are referred by the AWU/AMWU EBA, it refers to fabric workers in a number of subclauses. Clause 20 is classifications, and aircraft workers are referred to in clause 20.13.1, 20.14.1, 20.15, 20.30 and 20.31. So we believe that under the award, under the AWU/AMWU EBA6 that our members in Hangar 131 are indeed covered.

PN30

We also believe that under the ALHMWU EBA6 our members are excluded, and what we would like to do when it pleases the Commission, is to go into conciliation and explore these issues further. I have a number of letters and communications between ourselves, the company and the Liquor Trades Union, but I don't want to drag this part of the hearing on and on, but it is the Australian Workers' Union preference that we do go into conciliation and attempt to resolve this matter further there.

PN31

THE COMMISSIONER: Yes, Mr Styles.

PN32

MR STYLES: Thank you, Commissioner. It's an interesting argument Ms Lambert puts up, and let's go to some of the essence of the argument because I think a few things do need to be on transcript before going into conference. Let's extend the logic of what she is saying to us here. These people are my members. They are paid under a different agreement. I want them to be paid under another agreement. I believe they should be paid under that agreement and she's put some arguments and I'll come to it, but let's go to the essence.

PN33

If I belong to a union, in this case the AWU, I should be allowed to pick the industrial instrument that I can be covered by. Let's just extend that logic out. Let's say they decided to join the Pilots' Federation; does that mean we've got to pay these people as pilots; because that's the next logical step. Whatever union I belong to I can pick my industrial instrument.

PN34

As you know, under the Act there is the issue of freedom of association, and this I think is where, in the sense, in the classic term, "where the rubber hits the road", a little bit here, where the employer has to respect the rights of the people's freedom of association. As I've said to the unions here, you can belong to the brain surgeons' union for all I care. If you have the right to be represented, we'll listen to you, but there are appropriate industrial instruments that we will pay you under.

PN35

If I use the classic case, there are people who are non-members who are often represented by legal advisers or consultants from outside who will come and deal with claims, but we don't change the jurisdiction that we administer people under. So I think that's a very important point that the Commission should keep in mind. Let me look at some of the arguments that have been put up. One of the delegates here attended in relation to the metal trades negotiations, therefore the assumption is, and can I just say it is an assumption, that therefore I thought that we were going to be covered by the metal trades agreement. Well, we don't specifically go around and check to see where everyone comes from.

PN36

If the EBA says they have a number of delegates who want to attend, we will release them for their negotiation. It does not imply, and should not imply to Qantas Airways, that therefore somehow or other we have conceded coverage because, and I'll go back to my example, they could be a pilot that we've released. Does that mean we've conceded AWU coverage to the pilots? We haven't. In a sense the unions can pick their delegates who they want to attend.

PN37

The next issue that's raised is a matter that deals with payslips. It's conceded by the AWU that the rate of pay correctly reflects what the company says is the right industrial instruments for these people to be paid under. That is, and I'll use the term, the Miscellaneous Workers' EBA rather than the Metal Trades EBA to guide us through, and they rely upon, "But there was an administrative error in terms of title on the payslip but the rate of pay was right". So that's a reason for coverage. I'd just say that's a spurious argument. It's nearly as spurious as the membership argument which is, and I'll take the Commission back to my points.

PN38

There's then a reliance upon the EBA which says, and I'll take you to the clauses again that Ms Lambert took you to. Commissioner, I don't know whether it will assist you, I've only brought my copy. If you want the number for your reference I can hand that up to your Associate.

PN39

THE COMMISSIONER: What are you referring to?

PN40

MR STYLES: I'll referring to the ETOMs, I'll say the Miscellaneous Workers' Qantas Airways Enterprise Agreement 6. It's the clause that Ms Lambert took you to. But can I say if you look at 3.2, and in the conference I'll make sure you can have a look at it during that period, she particularly talks about:

PN41

On or after certification this agreement is employed in the Aircraft Worker classification structure included in attachment 1.

PN42

She glosses over the point that attachment 1s rates of pay are different from the metals rates of pay, so we say in relation to these people that she refers to as her members and also the people that are covered outside that are not her members, that by this EBA, by attaching the rate of pay we pay them appropriately under this EBA.

PN43

She then extends the argument out to say: but you have to look at the Airline Operations Award, and refers to the fact that fabric workers are covered under there, and that's quite correct. It's quite correct that fabric workers are covered under there, but also the miscellaneous workers can cover fabric workers under there too, because there are number of respondents to that particular award, which you'd be familiar with. There's the Miscellaneous Workers, there's the NUW, there's the AWU, there's the AMWU, and I think off the top of my head the CEPU as well.

PN44

So it's a multi-union award underneath. In fairness, if we take the logic of her argument, the Airline Operations Award of course is referred to in the Miscellaneous Workers' EBA. So I don't think that the AWU can rely upon award coverage argument in their EBA when it's a multi-respondent award. It's not an exclusive award. And also, the same awards are referred to in the Miscellaneous Workers' EBA as well.

PN45

It is quite correct for Ms Lambert to say: this is a matter that has been disputed back over the last two, maybe three years between the companies and the AWU. The company has stood fast in its position. That is: you can belong to whatever union you want to belong to but we will pay you under what we think are the appropriate industrial instruments, and we have been paying these people under it.

PN46

There's a major issue that Ms Lambert hasn't referred to but should be put on the record. If we were to accept just for a moment, and we don't accept the logic of her position, there have been additional conditions in relation to shift allowances paid to these employees in relation to a 15 per cent shift penalty and higher rates of pay. So the company has also been reluctant, put the union agenda aside for a minute, to transfer people into an EBA which will cause a reduction in their shift penalties and a reduction in their rates of pay.

PN47

The AWU has some fabulous ideas that we'll red circle these people and we'll look after them and that will fix them up. The ramifications across the rest of our EBA, for which the AMWU are party to, is enormous because we get claims like this all the time: resisting one claim at Qantas Defence Services in relation to this issue, from people that were brought into the EBA other circumstances.

PN48

So what we would be seeking before the Commission is this issue that the coverage question, in our view, is not in doubt. They are paid under the appropriate industrial instruments. There is then the next step which Ms Flanaghan might come to in the conference but they have taken a course and one course is the present 99 disputes between you and we say, on the face of it, those matters should be resolved and it's not appropriate to extend the coverage.

PN49

On the second basis, what I would say is the secondary argument put by the AWU in this matter, is that they have members in this area. They have a right to represent them and they have used the appropriate measures under the Act to initiate a bargaining period which will require the employer to talk to them about the proposals they have before the other union and the Miscellaneous Workers Union about changes to that EBA.

PN50

Now, we think that that's the appropriate course and in actual fact we were proposing a meeting to discuss those issues with the AWU today, but this matter was brought on before the Commission. So unless the Commission has any questions of me, we're happy to go into conference, but we are concerned about this fundamental principle is whatever union I belong to, I can pick the industrial coverage that I can have. We don't think that that's an appropriate course. That has the potential ramifications creating serious demarcation disputes across the organisation if that principle was to be adopted.

PN51

The company has been consistent in its approach in how it's paid these employees. We think the appropriate course is they have members, we'll have to deal with that in the initiation of the bargaining period, if the Commission pleases.

PN52

THE COMMISSIONER: Yes, Ms Flanaghan, do you have anything to say?

PN53

MS FLANAGHAN: Thank you, Commissioner. I just have a brief submission to put forward today. As you may be aware, the traditional and constitutional coverage of the Liquor Hospitality and Miscellaneous Union concerns workers engaged in aircraft cleaning classifications. We do not believe that there exists a demarcation dispute between the LHMU and the AWU. It is our understanding that workers engaged in Hangar 131 as fabric workers are members of the AWU and representatives from this area have participated in negotiation discussions and have voted on the AWU, AMWU Enterprise Agreement 6.

PN54

It is our view that this agreement is binding on AWU members including those working as fabric workers. We do not wish for the dispute between the AWU and Qantas Airways concerning their appropriate coverage to interfere with our negotiations with Qantas regarding the renewal of our agreement which, incidentally, has all but concluded. We seek to keep our negotiations limited to LHMU members and will resist any attempts to prejudice our agreement through drawing in the AWU as a party to our agreement.

PN55

THE COMMISSIONER: Yes, thank you.

PN56

MS FLANAGHAN: Thank you, Commissioner.

PN57

THE COMMISSIONER: We'll adjourn into conference.

NO FURTHER PROCEEDINGS RECORDED [11.35am]