D2005/17, Transcript of Proceedings [2005] AIRCTrans 1853 (7 September 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12597-1

SENIOR DEPUTY PRESIDENT KAUFMAN

D2005/17

APPLICATION/NOTIFICATION BY AUSTRALIAN AND INTERNATIONAL PILOTS ASSOCIATION
s.158(1) RAO Schedule - Application for alteration of eligibility rules
(D2005/17)

MELBOURNE

1.21PM, WEDNESDAY, 24 AUGUST 2005

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE

PN1

THE SENIOR DEPUTY PRESIDENT: Are there any changes to the appearances that were previously given to Ross VP?

PN2

MS C HOWELL: Yes, your Honour. I seek leave to appear for the Australian Federation of Air Pilots and with me is MR P PASFIELD. Mr Bornstein is briefed, but he's unavailable today, your Honour.

PN3

MR S ENSON: I seek leave to appear for Qantas Airways Ltd, Eastern Australian Airlines Pty Ltd, Sun State Airlines Queensland Pty Ltd and Jetstar Airways Pty Ltd, and with me is my instructing solicitor, MR N OGILVIE.

PN4

MS L WHITE: I appear for the Australian Municipal Administrative Clerical and Services Union.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, thank you Ms White. I take it there's no objection to the appearance of Counsel, so leave is granted. I think a couple of the objectors wish to withdraw their objections. I'll deal with that matter first. Ms White?

PN6

MS WHITE: Your Honour, yes, the ASU was an objector in this matter, and has now received an undertaking from the Australian International Pilots Association pursuant to section 158(5) of Schedule 1(b) of the Act, and I have a letter from the president of the association dated 23 August 2005, which I seek to tender along with a letter from the National Secretary of the Australian Services Union,
Mr Paul Slate, but a letter confirming the acceptance of the undertaking and the withdrawal of our objection, that letter dated, your Honour, 24 August 2005, and I seek to tender those.

PN7

THE SENIOR DEPUTY PRESIDENT: Thank you Ms White. It's a bit hard to show those in Sydney these documents.

PN8

MR ENSON: Perhaps if we could just have them confirmed later, but we'll assume that they're the same documents that we've got.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

EXHIBIT #ASU1 LETTER ON AIPA LETTERHEAD SIGNED BY ROBIN HOLT ADDRESSED TO MS WHITE DATED 23/08/2005

PN10

This provides an undertaking by the AIPA that it will not seek to enrol persons who are eligible to join the ASU, even if those employees hold pilot qualifications or licences, but are not employed as pilots or flight engineers.

EXHIBIT #ASU2 LETTER ON ASU LETTERHEAD SIGNED BY PAUL SLATE ADDRESSED TO AIPA PRESIDENT

PN11

That advises that the undertaking is acceptable to the ASU. On the basis of that undertaking, the ASU is prepared to withdraw its objection to the AIPA's proposed rule change. Yes, thank you, Ms White.

PN12

MS WHITE: Thank you your Honour. I wonder if I could be excused - - -

PN13

THE SENIOR DEPUTY PRESIDENT: You may

PN14

MS WHITE: Thank you.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes thank you, and the TWU's in a similar position is it?

PN16

MR LATHAM: Not quite, your Honour. Some of us have been registered in principle with the TWU, but they still have to take it to their federal executive. Upon that occurring, we'd assume the same process would occur.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes thank you. I couldn't see you on the screen. Who was speaking then please?

PN18

MR LATHAM: Sorry, Mr Latham.

PN19

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Latham. You're just out of range of the camera. Thank you. Yes very well. This matter was originally listed for mention this afternoon to arrange the order of appearances of the witnesses. Have the parties had discussions about that?

PN20

MR LATHAM: Not in relation to that matter your Honour, but there's been a number of discussions. Could I just say, one matter that we would like the Commission to think about, would be whether a conciliation might be an appropriate way to proceed. I know that my friends need some time to get instructions on it, but it seems to AIPA that it would be useful in terms of being able to possibly resolve some of the objections, and also in relation to reaching a mechanism to deal with some of the changes that have been announced in very recent times in relation to Jetstar.

PN21

In relation to the evidence itself, if I could just do it a very shorthand way. The statements of Holt, Alphandary, Welch and Gray have been filed, although you probably don't yet have them, but they have been filed today. We need to foreshadow that Mr Brook Armstrong and Mr Ben Campbell are currently both doing either assessment or training work, and will not be giving evidence. We'd be seeking leave to put on further evidence in relation to Jetstar and Eastern Airlines, and we'd seek an amendment to the directions earlier made for that to occur. There are also some summonses before the Commission, and there's an application by Qantas to set aside one of those summonses.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes, we’ll deal with that in due course if we get that far.

PN23

MR LATHAM: Certainly.

PN24

THE SENIOR DEPUTY PRESIDENT: But one thing at a time. I've received copies of statements from Marc Alphandary, Donald Gray, Robin Holt and Brian Welch. They're the ones to which you referred Mr Latham, is that right?

PN25

MR LATHAM: Yes they are.

PN26

THE SENIOR DEPUTY PRESIDENT: Have the other parties formed any views as to the appropriateness or otherwise of conciliation?

PN27

MS HOWELL: Your Honour, from the Apap's point of view, we've only just heard that proposal, and haven't had the opportunity to get instructions.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes.

PN29

MR ENSON: I think that is also the position of Qantas, your Honour.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes. How long will it take to get the instructions? It seems that if conciliation can assist to at least narrow the issues, that's a desirable course. Then the question arises as to if conciliation does take place, as to whether that should be conducted by me or by another member, given that I'll be arbitrating this matter.

PN31

MS HOWELL: Your Honour, I think we can state that our preliminary view is that if conciliation is to occur, it would be preferable for another member of the Commission to conduct that conciliation.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes.

PN33

MS HOWELL: To avoid any potential difficulties.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN35

MR ENSON: We would endorse that course and indeed from our discussions with Mr Latham, we would understand that that was the intention of AIPA in making that proposal.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes, very well

PN37

THE SENIOR DEPUTY PRESIDENT: What I can do while you're getting instructions is to find out when another member of the relevant organisations panel might be available to conduct conciliation conferences. What does that do with the hearing for next week?

PN38

MR LATHAM: Your Honour, it's a matter for the Commission. We'd be happy to continue, but we can see the logic in not continuing if a conciliation was likely to lead anywhere. It would be somewhat counter intuitive to have both running at the same time.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes, not necessarily. This matter has been listed for sometime. It's difficult to get all the parties and the Commission together on agreed dates. I'd be reluctant to vacate the dates, I must say, but we'll see. Are the parties available for conciliation if that can be arranged this week or in the first day or so of next week?

PN40

MR ENSON: Perhaps I should indicate that my appearance today is merely to cover the absence on leave of the Counsel for Qantas, Mr Michael McDonald, so he's not available until Monday at the earliest, and it would be preferable that he be involved in any such process.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes. It might be difficult to get anybody organised before next Monday. Why don't we tentatively look at next Monday for a conciliation process if I can find a member of the Commission available, and if the parties are agreeable to it. At least lets try to pencil that date in if we can. Is anybody not available for a conciliation process next Monday.

PN42

MS HOWELL: Your Honour, again we'd have to get instructions about
Mr O'Connell's availability. He is not here in the Court room and it really would be pointless to have conciliation without him being present, I think.

PN43

THE SENIOR DEPUTY PRESIDENT: Yes.

PN44

MR LATHAM: We're certainly available.

PN45

THE SENIOR DEPUTY PRESIDENT: Well, we can't take that matter much further, but I'd urge the parties to try to accommodate Monday if that's humanly possible. Do I take it that we are not in a position to discuss the order of evidence?

PN46

MR LATHAM: Your Honour, what we were proposing was, we were proposing to start with Mr Holt, whose going to be subject, we imagine, of some considerable cross examination. That will take up some considerable time we would have thought. And then, we think Alphandary will be the second most longest in the witness box. We suspect Mr Welch and Mr Gray will be much shorter, so we are proposing that order.

PN47

THE SENIOR DEPUTY PRESIDENT: So Alphandary, who next?

PN48

MR LATHAM: Welch and then Gray.

PN49

THE SENIOR DEPUTY PRESIDENT: Yes. Is that acceptable to everybody else?

PN50

MS HOWELL: Your Honour, the AFAP hasn't had a chance to look at and get instructions on the evidence in reply, so we just have to reserve our position as to whether the lateness of that material would cause any difficulty with the new witnesses, in particular, who are Mr Welch and Mr Gray. Otherwise, I don't think we have any difficulty except, your Honour, we should put on the record that we do not consent to any fresh evidence in chief being put on at this stage, because of the obvious potential for prejudice to us in that course.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes, what's the basis for the fresh evidence again please?

PN52

MR LATHAM: Your Honour, Mr Brook Armstrong is currently doing command assessment at Jetstar for promotion to Captain, and he's not prepared to give evidence. Mr Ben Campbell who is the - - -

PN53

THE SENIOR DEPUTY PRESIDENT: Just stopping you there. Is the evidence instead of Mr Armstrong's evidence of a similar nature?

PN54

MR LATHAM: It would be, your Honour.

PN55

THE SENIOR DEPUTY PRESIDENT: And that's the evidence of - whose evidence is in view of Mr Armstrong's?

PN56

MR LATHAM: It will be the evidence of Mr Howell.

PN57

THE SENIOR DEPUTY PRESIDENT: Yes, and in view of Mr Campbell's evidence, who is it proposed will give evidence?

PN58

MR LATHAM: There'll be an additional statement from Mr Alphandary.

PN59

THE SENIOR DEPUTY PRESIDENT: Will that be along the same lines as the evidence of Mr Campbell?

PN60

MR LATHAM: Yes, your Honour.

PN61

THE SENIOR DEPUTY PRESIDENT: Yes. Ms Howell, in that case, do you maintain your objection?

PN62

MS HOWELL: Yes your Honour, at least until we have seen the evidence, because "similar" is a relative term I suppose, your Honour.

PN63

THE SENIOR DEPUTY PRESIDENT: Well what I'll do Ms Howell, is I'll tentatively give the AFAP leave to adduce that evidence in view of the evidence that has been led. If you are prejudice or otherwise disadvantaged by it, you can raise that matter next week.

PN64

MS HOWELL: Yes, thank you, your Honour.

PN65

MR ENSON: Your Honour, may I also reserve the position of my client's
.....

PN66

THE SENIOR DEPUTY PRESIDENT: Yes certainly.

PN67

MS HOWELL: Could we just ask your Honour that AIPA give an indication of when we will receive that material?

PN68

THE SENIOR DEPUTY PRESIDENT: I'm sorry.

PN69

MS HOWELL: Could we have an indication from AIPA as to when that material will be provided to us.

PN70

THE SENIOR DEPUTY PRESIDENT: Yes, are you able to give that indication please Mr Latham?

PN71

MR LATHAM: Yes, your Honour. We anticipate late next week.

PN72

THE SENIOR DEPUTY PRESIDENT: Late this week?

PN73

MR LATHAM: No. We'll try and get it on as early as we can your Honour.

PN74

THE SENIOR DEPUTY PRESIDENT: Yes, well the hearing resumes next Wednesday does it not, or have I got my wires crossed?

PN75

MR LATHAM: No, that's correct, your Honour.

PN76

THE SENIOR DEPUTY PRESIDENT: Yes, well, it really is desirable that it be provided prior to the commencement of the hearing.

PN77

MR LATHAM: Very well. We’ll do our best, your Honour.

PN78

THE SENIOR DEPUTY PRESIDENT: Yes, and Ms Howell, if you receive it late, well of course you will say whatever you need to say about that.

PN79

MS HOWELL: Yes, thank you, your Honour.

PN80

THE SENIOR DEPUTY PRESIDENT: Does that deal with the witness evidence? No it doesn't, does it?

PN81

MR LATHAM: There is the issue of the summonses, your Honour.

PN82

THE SENIOR DEPUTY PRESIDENT: Yes, what about the AFAP witnesses? There are some thirteen of those, Ms Howell?

PN83

MS HOWELL: There are, your Honour. It's really difficult to talk about the order of witnesses, until we know exactly what the evidence is in the applicant's case. So we haven't really considered order, but they are all expected to be called.

PN84

THE SENIOR DEPUTY PRESIDENT: Yes, well at this stage, it looks as though we'll deal with the witnesses in the order of Holt, Alphandary, Welch and Gray at least, and we can just work out the remainder as we go along. Is that a satisfactory manner in which to proceed?

PN85

MR LATHAM: Yes, your Honour.

PN86

THE SENIOR DEPUTY PRESIDENT: Yes, very well. That brings us to the issue of the summons. There was a summons issued, I think by me - approved by me and signed by another member of the Commission last week, and that is a summons to the proper office of Qantas Airways Ltd. It's in relation to that summons that some submissions are sought to be made in relation to setting it aside. Is that correct?

PN87

MR LATHAM: Your Honour, we've had some discussions with Qantas, and we are confident that we can probably narrow the issues in debate, if not resolve them. We haven't yet been able to do so, but we can imagine we can do that within the next day or two. We can probably work out a way of having the documents produced before the Wednesday that are not in contest, but there may be documents that are still in contest, which perhaps might be more usefully dealt with on Wednesday.

PN88

THE SENIOR DEPUTY PRESIDENT: Yes, is that satisfactory to Qantas.

PN89

MR ENSON: It is, your Honour. Obviously, if the parties can, in discussion, clarify the particular documents that AIPA wants to have produced, then that would assist my Friday meeting and its obligations pursuant to the summons.

PN90

THE SENIOR DEPUTY PRESIDENT: Yes of course. Well that seems to be a satisfactory outcome. I doubt that I would have had the time available to me today to properly deal with the objection in any event.

PN91

MR LATHAM: Certainly, your Honour. There's also a summons to the AFAP to which we haven't yet had any discussions or any production.

PN92

MS HOWELL: Your Honour, I can say that our position is similar to Qantas in that it's probable that, on its face, there would be some objections to the terms of the summons, but we are also content to have discussions in the first instance to see if those issues can be resolved.

PN93

THE SENIOR DEPUTY PRESIDENT: Yes, is that satisfactory to AIPA?

PN94

MR LATHAM: Yes, your Honour. Perhaps if that matter could be stood over until Wednesday too?

PN95

THE SENIOR DEPUTY PRESIDENT: Yes. Very well, that will be done. Is there anything else that needs to be discussed at today's mention?

PN96

MR LATHAM: Just one final thing, your Honour. Perhaps just procedurally, it may be useful to at your convenience to deal with the questions of objections to all of the evidence at the beginning of the proceedings, rather than do each witness individually and have them waiting for that process to finish? We don't have a strong view, one way or the other, but that might be a more efficient way of dealing with things.

PN97

THE SENIOR DEPUTY PRESIDENT: There seems to be some merit in that suggestion. Is there any opposition to that? No. Very well. We will deal with the objections to evidence on that basis, once all the other preliminary matters have been disposed of, including the summonses if that becomes necessary. Each party that wishes to object to any portion of the witness statement of another party will do so before any witness is called. In that case, as I've indicated, I'll make enquiries as to the availability of somebody to conciliate this matter next Monday. Sydney would be the best venue would it not?

PN98

MR LATHAM: I think so, your Honour.

PN99

MS HOWELL: Yes your Honour.

PN100

THE SENIOR DEPUTY PRESIDENT: And my associate will notify the parties.

PN101

MR LATHAM: Thank you, your Honour.

PN102

THE SENIOR DEPUTY PRESIDENT: Unless there is anything else that anybody wishes to say, we'll adjourn - - -

PN103

MR ENSON: Your Honour?

PN104

THE SENIOR DEPUTY PRESIDENT: Yes.

PN105

MR ENSON: Your Honour, there is one matter, and that is whether it is timely to consider setting additional dates for hearing the matter. The indication is that there is only three days set down for hearing next week, and on my instructions, that's likely to deal with the applicant's witnesses, but little further, and I'm also instructed that a number of witnesses will be in Melbourne. So it might be appropriate to give consideration to setting some further dates, some in Sydney and some in Melbourne.

PN106

THE SENIOR DEPUTY PRESIDENT: Are the parties in a position to do that now?

PN107

MR LATHAM: We are, your Honour.

PN108

THE SENIOR DEPUTY PRESIDENT: Yes, well how many additional days do we anticipate might be needed.

PN109

MR ENSON: My instructions are that it might be as many as six.

PN110

MR LATHAM: I wouldn't disagree with that, your Honour.

PN111

THE SENIOR DEPUTY PRESIDENT: Okay, and how many days in each of the two cities please?

PN112

MR ENSON: Three days each.

PN113

THE SENIOR DEPUTY PRESIDENT: Very well. Let's see if we can find some dates. Have the parties considered any dates that are convenient to the parties?

PN114

MR ENSON: No, your Honour.

PN115

THE SENIOR DEPUTY PRESIDENT: Before I look at my diary.

PN116

MS HOWELL: Your Honour, is there any point in the parties trying to look at that before Wednesday and revisiting it on Wednesday.

PN117

THE SENIOR DEPUTY PRESIDENT: That's why I asked whether the parties were in a position to deal with it now and I was told they were.

PN118

MS HOWELL: We haven't discussed it today, your Honour, unfortunately.

PN119

THE SENIOR DEPUTY PRESIDENT: No, well let me tell you when I might be able to find at least three days in a row and that may guide you. The first three day period I have is 28 September, 28, 29 and 30 September, and then the next three day period I have is 4, 5 and 6 October or the following week in October. Indeed, October's pretty good for me generally, other than 19 October or perhaps 18, 19, 20 October may be cause some difficulties. 24 October I'm not available, and we've had this hearing scheduled for the 26th, and that'll obviously have to move up for submissions. So to the extent that that's of any assistance to the parties, there are some dates that I can give you, and I would urge the parties to see if they can find some dates that are convenient to them within that timeframe.

PN120

Is there anything else to discuss?

PN121

MS HOWELL: No, your Honour.

PN122

MR ENSON: No, your Honour.

PN123

MR LATHAM: No, your Honour.

PN124

THE SENIOR DEPUTY PRESIDENT: Very well. We'll adjourn this proceeding until next Wednesday in Sydney.

<ADJOURNED UNTIL WEDNESDAY 31 AUGUST 2005 [1.45PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ASU1 LETTER ON AIPA LETTERHEAD SIGNED BY ROBIN HOLT ADDRESSED TO MS WHITE DATED 23/08/2005 PN9
EXHIBIT #ASU2 LETTER ON ASU LETTERHEAD SIGNED BY PAUL SLATE ADDRESSED TO AIPA PRESIDENT PN10