C2005/2654, Transcript of Proceedings [2005] AIRCTrans 1074 (5 May 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11399-1

SENIOR DEPUTY PRESIDENT WATSON

C2005/2654

QANTAS AIRWAYS LIMITED
AND
TRANSPORT WORKERS' UNION OF AUSTRALIA
s.127(2) - Appln to stop or prevent industrial action
(C2005/2654)

MELBOURNE

2.58PM, WEDNESDAY, 27 APRIL 2005

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

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<EXTRACT OF TRANSCRIPT OF PROCEEDINGS [2.58PM]

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PN1

THE SENIOR DEPUTY PRESIDENT: I have an application before me for the making of an order pursuant to section 127 of the Workplace Relations Act by Qantas Airways Limited seeking to operate in respect to members of the TWU engaged at Melbourne airport within the ramp section of ramp services operations in Melbourne. The matter has been brought on at short notice and the union and its representative, Mr Mader, are at some disadvantage in terms of being able to bring evidence. In those circumstances the company has sought at this stage that an interim order be made pursuant to section 127(3A) of the Act to operate in effect until the final determination of its application.

PN2

I will re-list the substantive application at 10 o'clock on Monday, 9 May. In the event that following discussions between the parties either or both of them are of the view that directions are required in respect to any evidentiary materials in relation to that hearing, then contact should be made with my chambers to facilitate such directions. I would hope the parties would be able to themselves agree on some process for the timely exchange of evidence in advance of the hearing. I do direct them to have discussions as to that matter within the next 48 hours in case there are any issues of directions which need to be addressed by the Commission.

PN3

The interim order sought by the company is sought on the basis of probable industrial action which the company indicates is evidence from a pattern of behaviour of relevant employees over the period July 2001 to March 2004 which was considered and decided upon by Deputy President Ives in print PR944931. It is further evidenced in the company's submissions by strike action which has occurred today. The company also referred to threatened industrial action which led to an earlier application which was not proceeded with before Senior Deputy President Lloyd in March 2005.

PN4

Bearing in mind that my conclusions and findings for the purpose of the interim order are made in that context and not final conclusive findings, subject to further evidence which will no doubt be brought in the substantive proceedings, I find on the materials put to me today that industrial action is probable and the jurisdictional basis for the making of an interim order exists. In doing so I rely on the findings of Deputy President Ives in print PR944931. The further action which has occurred today is in my view consistent with what the Deputy President found in March 2004 was a pattern of behaviour of resort to industrial action in a manner inconsistent with the relevant award and agreement disputes procedures.

PN5

I place no weight for the purpose of the interim order on the Jetstar position. On the limited material before me I am not satisfied that the posters were evidence of industrial action given the possibility that they simply reflected an agreed position between the employer and the union which would fall within the exclusion in the definition of industrial action in subsection (e). Having found that there is sufficient basis for a finding on an interim basis of probable industrial action, I am of a view that an interim order should be made having regard to the past and now renewed pattern of resort by the relevant employees to industrial action rather than the pursuit of grievances and concerns through the disputes procedure of the relevant award and agreement and in order to ensure that there is no further industrial action pending the determination of the substantive 127 application by the Commission.

PN6

In reaching that view I have had regard to the significant disruption caused by the industrial action today, both to the employer Qantas and its passengers, both international and national, both in respect to the port of Melbourne and indirectly in relation to other flights affected by the industrial action which has occurred in Melbourne. I am conscious that since the directions of Deputy President Ives of 23 March 2004 there has been no further actual industrial action until today. However, I am conscious also that the period of respite of a year or so coincided with three or four months when the question of a section 127 order was before Deputy President Ives and for six months afterwards the operation of the direction made by him.

PN7

The order will be made in the terms submitted by Qantas save that it shall be referred to as an interim order. The parties bound in clause 2.2 will refer to TWU members employed in ramp section in ramp services operations, Melbourne airport, and is not intended either by the company or the Commission to apply to other areas of TWU membership including cleaning operations, carousel operations and aircraft movement. It is intended in effect to apply to the baggage loading and unloading onto aircraft.

PN8

The order will operate from one minute past midnight tonight to allow service to be effected and shall remain in force until the substantive application in C2005/2654 is disposed of by the Commission, or alternatively, withdrawn by the company. I would have thought the relevant employees would have paid careful regard to the observations of Deputy President Ives at paragraph 49 of print PR944931. Failure to do so and the recourse to industrial action rather than the disputes procedures of the relevant awards and agreements has been significant in my decision to grant the interim order sought by the company.

PN9

The order will be issued as quickly as possible today and provided to the parties. I will now adjourn these proceedings until 10 o'clock Monday, 9 May.

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