C2005/112, Transcript of Proceedings [2005] AIRCTrans 1341 (16 June 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11793-1

COMMISSIONER WHELAN

C2005/112

APPLICATION BY TRANSPORT WORKERS' UNION OF AUSTRALIA
s.113 - Application to vary an Award
(C2005/112)

MELBOURNE

10.07AM, FRIDAY, 03 JUNE 2005

PN1

THE COMMISSIONER: Good morning. I will take the appearances in relation to this matter. This is the application in relation to the Australian Air Express Award which I am calling on first and I will deal with the others after that as I understand, apart from the union, all those that are present, their interest is in this award.

PN2

MS A RICHARDS: I appear on behalf of the Transport Workers' Union of Australia.

PN3

THE COMMISSIONER: Thank you, Ms Richards.

PN4

MS L WHITE: I appear on behalf of the Australian Municipal Administrative, Clerical and Services Union.

PN5

THE COMMISSIONER: Thank you, Ms White.

PN6

MR R RONDINELLI: I appear for Australian Air Express and appearing with me this morning is MR DOMENICIC ANDREACCHIO of the company.

PN7

THE COMMISSIONER: Thank you, Mr Rondinelli. Okay. Right,
Ms Richards, this is your application.

PN8

MS RICHARDS: Thank you, Commissioner. This is an application in accordance with Section 103 of the Workplace Relations Act to vary the Australian Air Express Award 2004. Copies of the application, draft order and hearing notice were sent via facsimile to the award respondents on the 19 May 2005. I have got a copy of the statement as to service and a draft order to hand up for the Commission files.

EXHIBIT #TWU1 STATEMENT OF SERVICE SIGNED 19/05/2005
EXHIBIT #TWU2 DRAFT ORDER

PN9

MS RICHARDS: Thank you, Commissioner. Aviation security legislation requires that employees who work at Australian airports are required to possess an aviation security identity card, otherwise known as an ASIC. The Department of Transport and Regional Services website states, and I quote:

PN10

Everyone who works in the air site area or land site security zone of an airport with an ASIC scheme must wear an ASIC.

PN11

The legislation has recently been extended and that scheme now covers all airports where passenger screening is requiring and also for access to other airport related security sensitive areas such as fuel facilities and critical air control facilities. ASIC holders must undergo security checking by the Australian Security Intelligence Organisation, ASIO, and that is to supplement existing criminal history checks.

PN12

We believe that the provision of the reimbursement allowance of expenses occurred in obtaining a government required security card which is needed and necessary for the performance of employment duties is justifiable on the merits and is consistent with section 89(A)(2)(j) of the Workplace Relations Act. We would be seeking an operative date of today's date, 3 June 2005.

PN13

THE COMMISSIONER: Ms White?

PN14

MS WHITE: Commissioner, the ..... supports the application made by the Transport Workers Union of Australia, a timely application given the issues of security that are swirling in the media currently at airports. It is our view that this is a reasonable expense that should be paid for by the employee and is within the allowable matters under the Workplace Relations Act and we support the application here today.

PN15

THE COMMISSIONER: Mr Rondinelli?

PN16

MR RONDINELLI: Commissioner, we confirm that both our group and the company, received by way of service from the TWU, application and a draft order in relation to this matter on the 19 May 2005. The company's position has been expressed to the TWU in a couple of conversations I have had directly with
Ms Richards over the last couple of weeks. In essence, the company has no objection to the inclusion in the award to the payment of the cost of the application fee and in fact has been making those payments to date, including any renewals, but does object to the insertion in the clause of reimbursement by the company of what some noted as any other related expenses. The reference to any other related expenses is a problem from the company's view because it's really quite ambiguous as to what that actually means.

PN17

The company is not in a position to be able to quantify exactly those expenses, what they are, and how frequent they will be and high wide do they extend and it is on that basis which the company has expressed to the TWU that whilst it has o issue with respect to the application fee and I can say to date that that application fee is $130 to apply for one, and it needs to be renewed every two years at a cost of $70 and the company has been doing that to date. In fact, there has been 623 ASIC passes issued at the moment for employees air site and we understand that given the state of play at the moment, the security at airports have been a high priority. That is probably to extend to all employees irrespective of whether they are working air site or not.

PN18

We estimate that that in fact then will double the amount of applications, and obviously renewals, at a significant expense to the company which they don't object to payment but we do obviously have some serious concerns about the notion of any other related expenses. We don't know where that starts and where it ends. So, that view has been expressed to the TWU in conversation I have had and that is the position of the company. It clearly understands the reasons for the ASIC passes and has no objection as to why they have been introduced.

PN19

THE COMMISSIONER: It couldn't do much about it anyway.

PN20

MR RONDINELLI: No it couldn't, that's right. But obviously understands the significance of the security issues and is happy to go along with it. But, as I have already indicated, the other related expenses is a problem which we have with the way the draft order has been drafted and prepared, if the Commission pleases.

PN21

THE COMMISSIONER: Thank you, Mr Rondinelli. Ms Richards, what do you say in relation to the drafting of the order?

PN22

MS RICHARDS: I have had discussions with Mr Rondinelli and the TWU would be willing and amenable to perhaps a tidy up of the wording and insert the words "other reasonable related expenses" so we note that this is a reimbursement allowance. Those expenses need to be incurred before they would be reimbursed. Considering this a relatively new scheme we understand that perhaps details are a little bit sketchy at the moment but the types of expenses that we would be attempting to encompass in this particular type of clause would be, for example, if there is expenses needing renewing, the card, whether perhaps there might be expenses incurred in having to obtain additional security checks, police checks, those type of things.

PN23

So, that's why we have inserted the words "other related expenses" but we would be willing to tighten it up to say reasonable or actually incurred or something like that, if that may allay with the concerns of the employer, but we just do know at the moment, that considering it is a relatively new scheme, we are not 100 per cent sure as to how the scheme will develop and whether additional costs may need to be incurred.

PN24

THE COMMISSIONER: So when you were talking about the other related expenses, your actually not in a position to say what they might be, is that what you are saying?

PN25

MS RICHARDS: That is correct at the moment. I mean, as I have mentioned, the types of things that we would be foreseeing would be if there were renewals or additional security checks. We haven't been able to obtain detailed information from the Department of Transport and Regional Services as to how they will see that the scheme may be developed in the future and whether there may need to be other expenses incurred as the scheme develops.

PN26

THE COMMISSIONER: So, I am just trying to get an idea of what you are saying, so you are talking about only expenses which, because of the requirement by law, the employ incurs. So that, for example, the cost of a renewal, which would be part of the legislative requirements or are you talking about - I mean, the difficulty I have with other related expenses is are you talking about the cost of transport to go to the place where they have to go to get the actual pass or something, I mean, it is a very wide term.

PN27

If you are talking about expenses that are incurred by the legislation, such as the application fee and the renewal fee, I can understand that, but other related expenses incurred could be, you know, the cost of the bus fare to go and pick up your pass.

PN28

MS RICHARDS: I suppose, perhaps, Commissioner, if I could just indicate that we were of the view that it would encompass expenses that would be directly necessarily incurred as a requirement of the legislation .....

PN29

THE COMMISSIONER: So it is the cost of the application fee and other expenses provided for in the legislation, is that what you are saying?

PN30

MS RICHARDS: That is correct.

PN31

THE COMMISSIONER: Mr Rondinelli?

PN32

MR RONDINELLI: Yes, Commissioner, the clause talks about application fee and also, I mean, the company has been paying renewals as well and they are requirements under the Act.

PN33

THE COMMISSIONER: That is what I was trying to get. I mean if we are talking about, if in the legislation it says, you know when you make an application to pay this fee and for renewal you pay this fee, to get a copy of your police certificate, you pay this fee. I mean, if we are talking about things that the actual legislation imposes, I think, that's fairly clear but if we are going outside of that then it could become quite vague.

PN34

MR RONDINELLI: Yes, that's right.

PN35

THE COMMISSIONER: If what the union is saying, is that anything that the legislation imposes on the employee that they had to pay for, that they should be able to be reimbursed for, that's seems to me to be different to like, related expenses, which as I said, could be your bus fare to go and pick up your pass and I don't think that the employer should be responsible for that. But if the legislation says, when you lodge your application, you lodge this, if you renew it, you pay this, if they require, you know, if there is a - to get paper work you have pay something, whatever, if there are fees imposed by the legislation then that's a better way of phrasing it.

PN36

MR RONDINELLI: My understanding is, that it is in the legislation that the application fee and the renewal fee which is set out and that is what is being paid anyway at the moment.

PN37

THE COMMISSIONER: Yes.

PN38

MR RONDINELLI: But then it's so suggestive but what might be, for example, if you had said the word reasonable, the problem, we would suggest - - -

PN39

THE COMMISSIONER: You would get them arguing about what reasonable is.

PN40

MR RONDINELLI: Well that's right, what is reasonable to the employee might not necessarily be reasonable for Australian Air Express. Then you have the issue as well is, for example, someone applies and they don't receive a pass for whatever reason or there is additional checks that have to be done, does the company have to pay for those if issuing checks or an appeal process if there is one of the employees not satisfied that they haven't been dealt with properly. None of that is really envisaged or set out and for that reason and the reasons already expressed we just can't, we can't come to agreeance with that being inserted at the moment.

PN41

THE COMMISSIONER: No. But if it said, other expenses provided for in the legislation, would that satisfy you?

PN42

MR RONDINELLI: It may, Commissioner, but probably what we would do is certainly go back and look through the legislation closely and see what all those potential expenses would be. I don't have it in front of me now what they all could be, but certainly that will begin to provide a greater definition and parameters, rather than - - -

PN43

THE COMMISSIONER: Rather fees provided for in the legislation, something like that might define it more.

PN44

MR RONDINELLI: And obviously fees related to its initial application and renewal. I think we may need to look closely at whether there is any appeal processes built into that and how far they extend.

PN45

THE COMMISSIONER: Well, I am not sure what the legislation provides for either but I am assuming that it does provide fees for certain things and, as I said, I can understand that those fees should be subject to reimbursement because they are a requirement to carry out the job effectively. They are like, in the same way, as a tool allowance or something like that. They are something that is necessary and essential to be able to perform the job.

PN46

MR RONDINELLI: Yes, and I think it might be that, once we review the legislation even more closely, I think at the moment the understand is that it only relates to the application renewal fee and if that is the case then it may be that we just confine or we should confine the variation to those particular matters.

PN47

THE COMMISSIONER: Yes, although there is - potentially they could vary it, that's all, and from what ever reasons, that would also, I think, do I have to come back and vary the order every time, if you vary the order every time they change the fees.

PN48

MR RONDINELLI: Yes. I understand. I mean that, it may be though that in this instance, it is a bit too premature to set in - include a phrase which could be so wide as that, and I know that it is not probably the ideal situation for the both parties to have to come back every time but it may be that over a passage of time when it would be clear if the legislation or the regulations get amended where there is an ongoing expense that relates to the application or renewal that is clear and defined and is accepted by both. It may be that a later variation needs to occur, but I think at this time, it's not appropriate, because we just don't know what they are and it can cause all sorts of the problems down the line, if the Commission pleases.

PN49

THE COMMISSIONER: Ms Richards?

PN50

MS RICHARDS: Perhaps, Commissioner, if I could just indicate, the Transport Workers Union view would be that they would be amenable to a phrase that facilitates any fees which are provided for under the legislation. That is the basis of our application. This card is required. It is necessary for the performance of duties and it is required by legislation so we would be of the view that, I think, perhaps it would be appropriate, as you suggested, to have a clause in there that is wide enough that it provides for developments in the legislation, should they occur, so we need not to come back and have to vary this every time the legislation changes but have it tied sufficiently enough that they need to be required by the legislation before the reimbursement allowance, which, it would seem, would probably be the most appropriate situation given the information at hand at the present moment.

PN51

THE COMMISSIONER: Yes. Well, it seems to me that if the clause was confined to the cost of the application fees and other fees required by the legislation, that at the moment we know what that applies to, that is the application fee and the renewal fee. Now, if there is going to be additional fees that the employee is legally required to pay in order to perform their duties, then I think they fall into the same category. If we confine the clause to the fees that are legally - that are required by the legislation then that is a fairly precise definition.

PN52

MR RONDINELLI: Well, it may be then, Commissioner, that it is appropriate that the union and the company have a closer look at the legislation and then have some discussions in the next couple of weeks to see if we can nut out an appropriate wording of the clause which would meet some of the recommendations you made today.

PN53

THE COMMISSIONER: All right. Well, what might be an appropriate thing for me to do is this. My suggestion is that the wording of the clause says:

PN54

Where an employee is required by law to obtain an Australian Security identity card to access the Australian airport facilities to perform their work, the cost of the application fee and other fees required by the legislation will be reimbursed by the employer.

PN55

Now, how about I give you 14 days to get back to me on that?

PN56

MS RICHARDS: Certainly, Commissioner, I mean, we would be happy to accept that recommendation and have orders issued in those terms sought.

PN57

THE COMMISSIONER: Okay. Well I think it might be usual if you have a bit of a discussion with Mr Rondinelli and the company anyway in relation to that. Do you have any problem with that, Ms White?

PN58

MS WHITE: No. We agree with the wording that you have proposed and we will have discussions, if necessary, as well.

PN59

THE COMMISSIONER: All right then. Okay. Well, what I will do is, I will leave it on the basis that, that's my suggestion as to how the clause is worded and the parties can get back to me in 14 days to see if they have got agreement on that or some other form of words if they reach agreement on some other form of words. Okay. All right. Well those who were only interested in this particular application are excused, and I will continue to deal with the other applications. Thank you.

<ADJOURNED INDEFINITELY [10.28AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #TWU1 STATEMENT OF SERVICE SIGNED 19 MAY 2005. PN8
EXHIBIT #TWU2 DRAFT ORDER. PN8