C2004/6201, Transcript of Proceedings [2004] AIRCTrans 4151 (27 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 14306

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

C2004/6201

FLIGHT ATTENDANTS' ASSOCIATION OF AUSTRALIA

and

QANTAS AIRWAYS LIMITED

Notification pursuant to Section 99 of the Act
of an industrial dispute re engagement of long
haul flight attendants on a fixed term basis

SYDNEY

10.35 AM, MONDAY, 18 OCTOBER 2004

PN1

THE COMMISSIONER: Could I have the appearances please?

PN2

MS V. SKINNER: May it please the Commission, I appear on behalf of the Flight Attendants' Association and with me is MR M. WARBURTON and MR M. MIJATOV, Divisional Secretary of the FAAA.

PN3

MR F. PARRY: If the Commission pleases, I seek leave to appear for Qantas Limited, with me is MS R. ROCHE, of Qantas.

PN4

THE COMMISSIONER: Yes, Ms Skinner, what attitude do you have?

PN5

MS SKINNER: Sorry?

PN6

THE COMMISSIONER: What attitude do you have to Qantas being represented by Mr Parry?

PN7

MS SKINNER: I have no objection, Commissioner.

PN8

THE COMMISSIONER: Leave is granted, Mr Parry. Yes, Ms Skinner, it's your application.

PN9

MS SKINNER: Thank you, Commissioner. As set out in the dispute notice, this issue concerns the engagement of fixed term flight attendants. The Long Haul Enterprise Agreement provides that fixed term flight attendants may be engaged. The clause is set out in the dispute notification. It is clause 16 of EBA5 replacing clause 10 of EBA4. Commissioner, by way of background, on 25 May 2004, Qantas wrote to the FAAA advising it that it would be engaging 150 fixed term flight attendants. At subsequent meetings the company explained that due to the proposed operation of a London base to commence in April/May 2005, the 150 fixed term flight attendants would be engaged to operate flying based in Australia until the London base was proposed to commence.

PN10

The FAAA made no objection to the engagement of these fixed term flight attendants. We agree with the company that fixed term flight attendants may be engaged to essentially service what is typically known as a spike in the flying where it's not known that the demand may or may not be sustained. Indeed, the FAAA submits that this is the nature of the fixed term provisions. It enables Qantas to engage fixed term flight attendants on the same terms and conditions as a permanent long haul flight attendant but it does not require that they be engaged permanently. They can be engaged up to 12 months or longer than 12 months with the consent of the Association.

PN11

On 9 September, 2004, Qantas notified the FAAA that it would be engaging 150 fixed term flight attendants for a period of up to three months. Now, Commissioner, the difference with this engagement is that when the company wrote to us they advised us that the nature of this engagement would be that the flight attendants would have initial training and then the fixed term of three months would start subsequent to that training. Now, this, Commissioner, is a break with the normal engagement of the fixed term flight attendants. We wrote to the company and asked as to the nature of this engagement: Why was it necessary to employ flight attendants in this manner?

PN12

We met with the company and were given the reasons that it may be that additional annual leave slots will be made available for more FAAA long haul members to take leave over Christmas or it may be due to higher than usual sick leave is experienced over the Christmas period. However, to date, no additional annual leave slots have been issued and we have received no further information as to why the three month six term flight attendants are required in this period. Additionally, we, as you are aware, have been meeting with these fixed term flight attendants in our access visits to induct them with the FAAA.

PN13

We are hearing from these flight attendants the nature of the contract of their engagement. We, in fact, believe they are given a contract at the initial training session that seems to imply that perhaps industrial disputation may be arising and that these flight attendants may be working. We can't believe that the company would be providing such a document to fixed term flight attendants. There is secondly a document being provided on the last day of training setting out the nature of the three month engagement for these fixed term flight attendants.

PN14

We do not agree that these two documents accord with the nature and spirit of the EBA obligations. We have asked the company initially for a copy of the contract. They have refused to provide it. So what I'd be seeking from you this morning, Commissioner, is to issue a summons to Qantas to produce both the training contract for the engagement of these 150 fixed term employees and the three month fixed term contract for the 150 fixed term employees to ascertain the nature of whether the representation that these flight attendants are telling us in the training sessions accord with the EBA provisions and this is because the company will not provide these documents.

PN15

THE COMMISSIONER: What are the documents that you seek from a summons?

PN16

MS SKINNER: The initial training contract.

PN17

THE COMMISSIONER: Right and then the contract itself.

PN18

MS SKINNER: Yes, because we believe there are two documents in existence.

PN19

THE COMMISSIONER: Why do you seek it?

PN20

MS SKINNER: Because when we are meeting with the fixed term flight attendants, we are advised that the contract is able to be terminated on four weeks notice. We do not agree that this is - - -

PN21

THE COMMISSIONER: The training contract or the contract of service?

PN22

MS SKINNER: The three month contract. We do not agree that this is a true fixed term contract within the provisions of the enterprise agreement.

PN23

THE COMMISSIONER: Yes, that's one reason.

PN24

MS SKINNER: Yes, and the contract does not set out any stand-by obligations or anything like that. We don't understand that the contract sets out the full entitlements that the three month fixed term employees are being advised orally about their - what they are indicating to us orally is that they are advised that they are effectively on stand-by, not in accordance with the terms of our enterprise agreement and we want to ascertain what the so-called stand-by provisions are for these fixed term employees.

PN25

THE COMMISSIONER: Yes.

PN26

MS SKINNER: Additionally, Commissioner, when we have met with the fixed term employees they were advising us they have only been trained on one aircraft type. Long haul flight attendants are currently trained on three aircraft types and it would be our case, Commissioner, that in the event that a long haul flight attendant is only trained on one aircraft type, they're not able to effectively bid for work as a long haul flight attendant and the ability to bid for work is one of the key provisions contained in our enterprise agreement. So I would be seeking from you an indication from the company advising whether they intend to train these fixed term flight attendants on all three aircraft in order that they may bid for work.

PN27

THE COMMISSIONER: Is it 10.6 that you're looking at?

PN28

MS SKINNER: Yes, Commissioner.

PN29

THE COMMISSIONER: What is it about 10.6 that you don't know or that's not - - -

PN30

MS SKINNER: Sorry?

PN31

THE COMMISSIONER: All the rest of 10 or 16, I don't know why it's called clause 10, but anyway, what does 10.6 - are you saying the company has not consulted?

PN32

MS SKINNER: Yes, Commissioner, we say the company has not consulted adequately to provide the information as outlined in 10.6. We're not satisfied as to why the work cannot be reasonably and economically performed by the existing work force. We're not satisfied as to the proposed numbers of fixed term employees and may I add there, Commissioner, that additionally the company has written to us advising us that there will be another 187 three month fixed term contract employees engaged. They wrote to us on, I think, 30 September advising us of another 187 fixed term employees.

PN33

Again, there has not been consultation on the nature of the need to employ another 187 fixed term employees for such a short period of time.

PN34

THE COMMISSIONER: Yes. What steps have you taken to have the company consult with you? You've written and they've said, we don't want to talk to you?

PN35

MS SKINNER: No, we've had a meeting with them where the reasons were given about the perhaps additional annual leave slots would be made available and the fixed term employees would be engaged to cover higher levels of sick leave over the Christmas period.

PN36

THE COMMISSIONER: I see, yes.

PN37

MS SKINNER: Additionally, we wrote two letters to the company on 7 October asking as to when the company would be making any additional annual leave slots available, when they would be varying any schedules or rosters in accordance with making these additional slots available, whether there were any unexpected or special circumstances and additionally we wrote advising as to the training issues, a separate letter, of the concerns I have jus raised with you.

PN38

THE COMMISSIONER: This is about one aircraft only?

PN39

MS SKINNER: Yes.

PN40

THE COMMISSIONER: You wrote that when?

PN41

MS SKINNER: 7 October. We received a response from the company on 8 October in relation to this. We received no response as to the issue of the annual leave slots, variations to schedules and rosters, unexpected or special circumstances. We did, however, receive minimal responses to our request about the lack of training on all three aircraft type. Again, the company has said that crew will not be trained on all aircraft at this time. We consider that an unsatisfactory response.

PN42

THE COMMISSIONER: All right.

PN43

MS SKINNER: So, Commissioner, with the provision of those documents I believe that that would help the Association prepare its case in order to understand the nature of the engagement of these fixed term employees because, Commissioner, you must understand that we are receiving contradictory reports when we meet with these fixed term employees and there are concerns about the nature of the oral representations made to these employees as to the type of engagement they will have from Qantas and we want to verify that with the actual written documents that are provided to these long haul fixed term employees. Additionally, the Association, of course, remains willing to conciliate if you consider that it may assist the parties in relation to this matter.

PN44

THE COMMISSIONER: Thank you, Ms Skinner. Yes, Mr Parry?

PN45

MR PARRY: If the Commission pleases. We have attended here today in response to a notification from the Flight Attendants' Association notifying us and the Commission, of course, of the existence of an industrial dispute and requesting that the Commission provide assistance in resolving the dispute.

PN46

Of course, the Commission has certain powers in respect of industrial disputes having presumably found such an industrial dispute and has limitations on the matters that can ordered and the relief that can be granted. The Commission is no doubt familiar with the provisions of section 89A.

PN47

The union today have made a number of allegations and statements and it's probably not appropriate just at this stage to contest each and every one but it should be noted that we don't necessarily accept the version of events that's been given but in amongst those allegations it's been said that a subpoena is sought, that there are allegations of non-compliance with the enterprise agreement and the union wants the Commission's assistance to prepare its case.

PN48

At this stage, Commissioner, we're not exactly sure at all what the case is that is being advanced against us. It's all very well to turn up and ask for subpoenas but as the Commission would well be aware the issue of a subpoena isn't relief in itself. I think the Act, section 111(1)(s) refers to providing subpoenas if those subpoenas assist in the hearing or determination of the industrial dispute.

PN49

At this stage we say it's premature to be considering the issue of subpoenas. We don't have a form in front of us. The matters that have been described appear to encompass a large number of documents generally considered to be private between the company and the individuals that have entered into those contracts of employment so we would certainly oppose the issue of a subpoena in circumstances where it's unclear what relief is ultimately being sought and what case is to be advanced against us.

PN50

It seems to be the position that the union is going to present or mount some sort of case or argument. I do indicate that there have been meetings between Qantas and the Flight Attendants' Association about these very issues. There has been, as has been advised to the Commission, some correspondence. It appears to be the position that the union want to use the processes of this Commission to obtain more than their entitlements under the enterprise agreement. The Commission I think is familiar with the terms of I think 10.6, Commissioner, and that 10.6 makes a provision and has certain obligations.

PN51

The obligations contained therein don't do as far as those that are sought to be utilised by Commission order today so what the union are attempting to do is supplement the agreement they've entered into with some sort of process in the Commission to add to that and we say what they've agreed to is what they've agreed to. We're happy to consult and continue to consult with them about it but to start using the processes of the Commission in those circumstances we will strongly oppose.

PN52

I'm not sure I can add a lot further to that, Commissioner. I'm not sure precisely what the FAAA see as the next step in this proceeding, whether it's articulating their case, whether it's presenting a draft summons, whether it's going into conciliation or whether it's preparing some advice on what relief and what case is going to be run before the Commission. In those circumstances I will leave it at that for the time being until we're in a position to respond properly to the sort of wide range of matters that have been put before the Commission.

PN53

THE COMMISSIONER: Thank you. Ms Skinner, what do you say about that?

PN54

MS SKINNER: Thank you, Commissioner. I would say that in respect to the issuing of the summons or the subpoena the authority from the Commission says that it is clearly an ability of the Commission to issue such an order while the parties are still in conciliation in order to go to the factual basis on which the industrial dispute is alleged to exist and can help formulate the parties to ascertain the nature of that dispute. In relation to that I could hand up an authority of the Commission saying that it's clearly within the conciliation powers of the Commission under 111(1)(s) if that would please the Commission.

PN55

THE COMMISSIONER: It seems to me that you're using the summons to find out whether in fact there is a problem. A summons is normally used when we know what the problem is or the disagreement is. I don't want to use the words "fishing expedition" because I know the Association and Qantas are not in a sort of - there have been some serious discussions between them about a range of matters but all I am told is that there is some information from some persons who may or may not be members of the Association yet but anyway, be that as it may, who say perhaps this thing can be terminated after four weeks, etcetera, etcetera.

PN56

We don't know if that's the case or not but in any case no the face of it clause 10.6 merely requires consultation. They may not have consulted to the extent that you want but there is no suggestion that they haven't consulted is there?

PN57

MS SKINNER: Commissioner, we say that they haven't consulted fully in providing an explanation for the reasons that the Association has sought but, moreover, we say it's clear on the face of clause 10.2 that the flight attendants are engaged under the terms of the enterprise agreement and that when we are meeting with these fixed term employees it does not appear to us that they are being engaged under the terms of the enterprise agreement and without the ability to know the written contracts that these fixed term flight attendants are engaged we're not in a position to determine whether that is the case or not.

PN58

THE COMMISSIONER: Have you asked Qantas if they are engaged under the terms of the Enterprise Agreement?

PN59

MS SKINNER: They say that the engagement of the fixed term employees accords with clause 10 of well, clause 16 of EBA5, I mean that is the response we've received.

PN60

THE COMMISSIONER: Yes, I understand that.

PN61

MS SKINNER: But, Commissioner, if I put it to you that we are meeting with approximately 10 classes of fixed term trainees and they are all telling us contradictory things about oral representations made to them when they engage in the training and then the documents that they are being asked to sign which provides for termination provisions which we don't agree accord with the EBAs and Qantas have refused to provide that document under request.

PN62

THE COMMISSIONER: When was the last time you met with Qantas about this?

PN63

MS SKINNER: On 5 October.

PN64

THE COMMISSIONER: Right and that was subsequent to the meetings with the employees that you are talking about?

PN65

MS SKINNER: No, prior, prior.

PN66

THE COMMISSIONER: Well, why wouldn't there be a meeting between the association and Qantas and for Qantas to association to put squarely to Qantas the information that seems to be coming from those trainees.

PN67

MS SKINNER: Well, Commissioner, we have asked for responses in writing and we find that the responses that the company has provided are far from satisfactory.

PN68

THE COMMISSIONER: I think you had better show them to me, I haven't got copies. I don't mean show them to me, I mean present them and we will mark them. We'll mark them, so if you can just take me - just deal with one after another.

PN69

MS SKINNER: Sorry?

PN70

THE COMMISSIONER: Well, tell me about them and I will mark them and we will deal with one after the other.

PN71

MS SKINNER: The first document, if we can mark it FAAA1 is a document dated 7 October to Qantas referring to the meeting held on 5 October and asking whether the company can provide any more information on the reasons it outlined in those four bullet points as to the nature of the engagement - - -

PN72

THE COMMISSIONER: This is the fourth bullet point letter, right, that will be exhibit FAAA1. Let me just read it for a second. Yes, okay.

EXHIBIT #FAAA1 DOCUMENT DATED 7 OCTOBER TO QANTAS REFERRING TO MEETING HELD ON 5 OCTOBER

PN73

MS SKINNER: Secondly, you should have another letter on FAAA letterhead dated 7 October with approximately seven bullet points.

PN74

THE COMMISSIONER: Yes, that will be exhibit FAAA2.

EXHIBIT #FAAA2 LETTER ON FAAA LETTERHEAD DATED 7 OCTOBER

PN75

THE COMMISSIONER: Yes?

PN76

MS SKINNER: That letter sets out the concerns the association has about in particular, the training of long haul flight attendants and whether they will be trained on all of the long haul aircraft and this letter relates to the specific issues that were being raised in meetings with the fixed term trainees themselves.

PN77

THE COMMISSIONER: I see, yes.

PN78

MS SKINNER: In particular you will see there the last bullet point, under what circumstances can the fixed term contracts be terminated.

PN79

THE COMMISSIONER: Yes.

PN80

MS SKINNER: You will note the response that the company received on 8 October 2004 - - -

PN81

THE COMMISSIONER: Which will be, sorry, FAAA3. Yes?

EXHIBIT #FAAA3 RESPONSE RECEIVED BY THE COMPANY ON 08/10/2004

PN82

MS SKINNER: Does not appear to address any of the concerns raised in the initial letter marked as FAAA1 and it answers the seven bullet points in brief form there or attempts to answer it. We say this is not a satisfactory response from the company.

PN83

THE COMMISSIONER: Yes, thank you, Ms Skinner.

PN84

Mr Parry, there has not been a response to exhibit FAAA1? Well, it seems as if Mr Parry whether you want to respond, there doesn't seem to have been a response to FAAA1 and in respect of FAAA2 Qantas' response seem a little bit brief and somewhat unhelpful, particularly the first question is: will the flight attendants be allocated a flying time or a reserve line and the answer is, they will be allocated a flying line or a reserved line. It is difficult to see how that is helpful. I am not necessarily saying it's contrary to the agreement but it is a less than informative response, isn't it?

PN85

MR PARRY: As you rightly note, Commissioner, we have an obligation under our Enterprise Agreement to consult, there have been meetings, there have been discussions and there has been the exchanges of correspondence. The position of Qantas is that it has complied with the obligations it has. I am not sure I can add a lot to that.

PN86

THE COMMISSIONER: Yes, thank you, Mr Parry.

PN87

MR PARRY: If the Commission pleases.

PN88

THE COMMISSIONER: What the union seeks or the association seeks at the moment doesn't seem to be strictly referrable to their original notification, that's not the reason why I don't propose to issue any subpoena or summons to provide information but it's just an observation that I make. However, I do say this and that is that I am not sure that Qantas' response is in accordance with its obligation to consult with the association in respect of a number of matters, in particular, the term of the employment of persons is clearly set out in 10.6, the responses are, as I observed, fairly brief and not particularly informative.

PN89

The provisions don't require Qantas or the FAAA to agree to what Qantas decides to do in this respect but, nonetheless, I think there needs to be some information and discussion and that's implicit in the agreement. So what I do propose to do is to direct that the parties confer and in particular that the subject of those discussions be responses that in any practical view would amount to consultation in respect of those matters that are set out in 10.6 and also in particular to respond to the questions both those raised in FAAA1 and FAAA2, that is, the two items of correspondence of 7 October 2004.

PN90

I would expect that those discussions could proceed almost immediately and the facilities of the Commission could be provided to the parties. Alternatively, if they want to go somewhere else and meet later that might also be appropriate. If the Commission's assistance is required you might communicate that to my associate but I would have thought that it's possibly matters that Qantas and the Association should talk party to party at this stage but anyway I'll leave that with you and the Commission will be informed as to what your immediate desires are. I need not say any more. These proceedings are now adjourned.

ADJOURNED INDEFINITELY [11.08am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #FAAA1 DOCUMENT DATED 7 OCTOBER TO QANTAS REFERRING TO MEETING HELD ON 5 OCTOBER PN73
EXHIBIT #FAAA2 LETTER ON FAAA LETTERHEAD DATED 7 OCTOBER PN75
EXHIBIT #FAAA3 RESPONSE RECEIVED BY THE COMPANY ON 08/10/2004 PN82