C2005/3930, Transcript of Proceedings [2005] AIRCTrans 2437 (29 November 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 13460-1

COMMISSIONER RAFFAELLI

C2005/3930

FLIGHT ATTENDANTS’ ASSOCIATION OF AUSTRALIA
AND
QANTAS AIRWAYS LIMITED
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/3930)

SYDNEY

10.05AM, THURSDAY, 17 NOVEMBER 2005

Continued from 31/10/2005

Reserved for Decision

PN3077

THE COMMISSIONER: Yes, Mr McInerney.

PN3078

MR McINERNEY: Commissioner, if I could call Peter Lapka.

<PETER ALEXANDER LAPKA, SWORN [10.06AM]
<EXAMINATION-IN-CHIEF BY MR MCINERNEY

PN3079

MR McINERNEY: Thank you, Mr Lapka. Mr Lapka, have you prepared a statement for the purposes of these proceedings?---I have.

PN3080

Do you have a copy of that statement with you there?---Yes, I do.

PN3081

Do you wish to make any changes to that statement?---No, I don't.

PN3082

So, the contents of that statement are true and correct in every particular?---Yes, it is.

PN3083

Commissioner, I tender this statement.

EXHIBIT #FAAA11 WITNESS STATEMENT OF PETER ALEXANDER LAPKA

PN3084

MR McINERNEY: Mr Lapka, could I take you to paragraph 16 of your statement?---Yes.

PN3085

And you say there that you've stayed in many hotels around the world and that you consider that the Bonaventure is the most dangerous location of all crew hotels. Since preparing this statement have you flown to Los Angeles and stayed in the Bonaventure?---Numerous time.

PN3086

I'm sorry?---Numerous times. Like I said in the statement that was my first trip there and I have been there probably a dozen times, minimum.

PN3087

And do you still consider that the Bonaventure is in the most dangerous location of all crew hotels?---Of all my 26 years of flying I would say that's the area that I feel the most unsafest, that surrounding area around that hotel.

PN3088

So, it's not just in terms of all current hotels, it's also in terms of - - -?---My past history.

PN3089

So in that case then, why is it that you continue to fly to Los Angeles?---The type of trip that it is, being a 4 and 5-day trip or more, it just - with the long-range allowance, with my financial matters with my family, supporting my family, it's my responsibility to take a trip such as the ones to Los Angeles.

PN3090

MR McINERNEY: Thank you, Mr Lapka, I have no further questions.

**** PETER ALEXANDER LAPKA XN MR MCINERNEY
PN3091

THE COMMISSIONER: Yes, Ms McKenzie.

<CROSS-EXAMINATION BY MS MCKENZIE [10.09AM]

PN3092

MS McKENZIE: Mr Lapka, can I ask you some questions in relation to the incident that happened to you on 29 May. You say you were approximately half a block from the hotel when a white male walked in front of you. Do you recall what age the male was roughly or how - did you get a sense of how old he was?
---I'd say he'd be in his 30s, early 30s, late 20s.

PN3093

How was he dressed?---I remember he had a light blue beanie on, a grey hood with a warmish jacket - or being cold weather he had a warm jacket on. And I could tell he had long pants on. He had the cutoff gloves.

PN3094

Was there anything about his appearance that may have led you to believe that he was a homeless person or a vagrant?---Being familiar with Los Angeles in the United States having gone to school there and lived there, I could tell that - and being around a lot of homeless people, I could tell this was fellow wasn't and if I may stand up - - -

PN3095

He wasn't - I'm sorry, he wasn't or was?---He wasn't a homeless person, okay. He was - I mean, you know, he wasn't on the shelf to start with and he came towards me, he had his arms out like this, like a homeless person is not going to walk and ask you for money like that. You know, usually homeless people are - can I have some money, something like this. This guy was coming towards me like that. I had my backpack on my left shoulder and hand in my pocket and I looked at him and I said, all right, this is going to be something.

PN3096

THE COMMISSIONER: Are you picking this up?

PN3097

COURT MONITOR: Yes.

PN3098

MS McKENZIE: Thank you. You say he walked in front of you. Does that mean he was approaching you from the - - -?---I was walking in one direction, he was walking in the other direction.

PN3099

Yes. Was he on the same side of the footpath as you?---The footpath was maybe 6 feet wide or whatever it was and I was going towards the hotel, he's coming in the opposite direction and we were just meeting each other. And he was - I was walking down the middle of the sidewalk and he was more on that side of the sidewalk towards the middle and then as he said, "Have you - do you have any" and he walked towards me and as he said "money" that's when he made his move.

**** PETER ALEXANDER LAPKA XXN MS MCKENZIE
PN3100

How far away was he from you when he started to speak to you?---A couple of steps because as he was saying it, he says, "Do you have any" - and as he's taken those two steps, when he said "money" and his hands were on top of my head and his knee came up.

PN3101

You were able to fend him off by pushing him in the chest?---Well, it was more than a push.

PN3102

THE COMMISSIONER: Mr Lapka, it might be difficult but instead of showing us you'll have to just describe it?---Sorry.

PN3103

Otherwise it's just - so I you sit down and - - -?---All right.

PN3104

- - - and just describe it rather visually because we don't pick that up?---Okay.

PN3105

But anyway proceed.

PN3106

MS McKENZIE: Yes. Perhaps if you could talk us through your recollection of it?---After that part, when he had his hands on top of my head, and his - I can't remember if it was his left knee or his right knee, it happened that fast. I just thrust my right fist into his chest rather vigorously and the force knocked him back into a small shrub lining the sidewalk, on the building side of the street.

PN3107

You refer to a brief verbal confrontation after this. What was the nature of that confrontation?---I don't think I can repeat that here in front of ladies but I stood over top of him and - - -

PN3108

You can repeat it in front of me?--- - - - and I just held my fist back and I just said - do you want me to repeat it? I mean, I can't remember it word for word because it mainly all just - - -

PN3109

Perhaps I can ask it this way. Who initiated the verbal confrontations? Did you say something to him after you'd pushed him back in the hedge?---Well, I - he didn't have his breath so he wasn't speaking.

PN3110

Yes?---And his eyes were as wide - he just stands and I just held my face - my fist above my head and I just said, listen - to be honest and I'm the ..... I remember word for word what I said but I know I swore at him and I said, you know, get up and I stood back after maybe 15 seconds or something like that and he just took off.

**** PETER ALEXANDER LAPKA XXN MS MCKENZIE
PN3111

Yes. Was there anybody else in the vicinity that you recall?---No, but as I walked down towards the hotel which was - took me a minute or so, the crew were getting onto the bus for going back to Sydney and I just walked on the bus and I just said, listen, this has just happened to me, make sure you're really careful because if it happens to you, you know be careful in this area.

PN3112

And you suffered a cut to your ear and a cut beside your left eye but I take it that that was caused when he grabbed you on the head?---Well, I'm assuming. I didn't see any weapon in his hand or anything like that but I did notice that he had the cutoff gloves so I'm just assuming it was his thumb nail or something like that.

PN3113

I see. Now, you say in paragraph 10 that you reported the incident to Samantha Taranto. I want to suggest to you that it's not correct to say that you reported it. You happened to bump into Ms Taranto and in response to a question from her about how were you, you volunteered the information about the incident. Do you agree with that?---Well, volunteer, report - I mean she being a manager for me I feel as though I did volunteer a report to her.

PN3114

Have you had a chance to read Ms Taranto's statement at all?---No, I didn't know she had one.

PN3115

Has that not been shown to you?---N.

PN3116

Perhaps if I can read out what Ms Taranto says and then I can ask you whether you agree with that or not. Ms Taranto is responding to paragraphs 9 and 10 of your statement and she says that she was staying at the Bonaventure on 30 and
31 May and she bumped into you outside the crew lounge on 31 May "and in response to a general inquiry from me", being Ms Taranto, he meaning you referred to the incident. She said:

PN3117

I was concerned when Mr Lapka told me that hotel security had not followed up on his report so I contacted hotel security to follow up. I was advised that Mr Lapka had been asked by the hotel duty manager to meet with hotel security in person to provide a report of the incident and that Mr Lapka had failed to attend. As Mr Lapka had not provided his name to the hotel reception, hotel security was unable to -

PN3118

?---Excuse me, just take that back two sentences, I did not give my name, did you say?

**** PETER ALEXANDER LAPKA XXN MS MCKENZIE
PN3119

MS McKENZIE:

PN3120

I was advised that Mr Lapka had been asked by the hotel duty manager to meet with hotel security in person to provide a report of the incident and that Mr Lapka had failed to attend. As Mr Lapka had not provided his name to the hotel reception, hotel security was unable to press the matter.

PN3121

I'll come back to this. But I'll just finish what Ms Taranto says:

PN3122

In the course of my conversation Mr Lapka told me that he was on his way to Macys to return an item. I express surprise particularly in light of the attack he had experienced 2 days earlier and given that it was dark outside and I said to him words to the following effect, "Are you sure you're comfortable with that?" He replied with words to the effect of, "Yes, I'm fine".

PN3123

Do you recall, first of all, whether Ms Taranto - whether you were going to Macys that evening when you bumped into Ms Taranto?---It wasn't evening. It was still daylight.

PN3124

Yes?---And I was going back to Macys to return something. I was just coming back from that when I bumped into her.

PN3125

And do you agree that Ms Taranto expressed some concern or surprise that you were going to Macys by yourself after the incident that happened 2 days earlier?---Well, being a female I could maybe understand that but it doesn't mean - I'm not going to stop going to LA or walking around that hotel or anything like that. I mean, an incident happened and it's not going to deter me in any way or other way at all.

PN3126

Yes?---When I called down - you were referring to my name being not given at the hotel. When the receptionist picks up the phone after I call them, they know where that room is calling from so they would have known my name and when they pick up the phone and they said, "Mr Lapka, is there anything I can do for you?"

PN3127

Yes, do you agree that the reception asked you to come down and report the matter - - -?---I did come down.

PN3128

- - - to security? Sorry?---I did come downstairs.

**** PETER ALEXANDER LAPKA XXN MS MCKENZIE
PN3129

You went down to reception?---Yes, I wanted to get the number for my customer service manager and they don't give that information over the phone so you have to go down and receive the numbers so I went down to get - looking at the crew list to get the number.

PN3130

Did you speak to anybody from hotel security about the incident?---No.

PN3131

Were you asked to speak to anyone from hotel security by the reception staff?
---Yes.

PN3132

MS McKENZIE: Yes, I have got no further questions, Mr Lapka.

PN3133

THE COMMISSIONER: Mr McInerney?

<RE-EXAMINATION BY MR MCINERNEY [10.18AM]

PN3134

MR McINERNEY: Mr Lapka, was there a reason why you didn't go and speak to the hotel security?---Yes, because starting with the whole incident and before that - arriving that day, I arrived early in the morning, had my sleep, woke up having some of the - and I stayed in my room that whole afternoon and the early part of the evening watching the National Basketball League playoffs which I enjoy watching and after that I got up to go to the gym. Well, that whole time, you can hear sirens going around whether they're fire engines, police cars, ambulances, whatever, but it's non-stop all through the whole day. And I thought for an incident like this to involve the police with matters such as this scratch on my ear I thought that was, you know, being pretty weak, getting somebody to come up here and involve a couple of hours or an hour - probably 2 hours of their time filling up reports with me and then back at the office, and I thought, oh, jeez, you know, I'm not going to do something like that and they're going to come up to me and say, why have you got a scratch on your face and there's people down there getting shot and knifed and whatever? That's beyond me. But then again, in hindsight, now that I know I should have called the police or something like that, I mean - I don't know. Would I still do it? To me it seems like a waste of time, you know what I mean? I thought - and I wasn't aware that I was supposed to call the police. I reported the incident, made an ICAN to the company and that's as far as I thought I was supposed to do. So at the time I thought I was doing the right thing but it still seems pretty weak of me to call the police over a matter such as this. I mean it happened, I dealt with it, you know, I'll still keep flying and I'll still walk the streets like I normally do. It's not going to deter me.

**** PETER ALEXANDER LAPKA RXN MR MCINERNEY
PN3135

MR McINERNEY: Thank you, Mr Lapka. Commissioner, I have no further questions.

PN3136

THE COMMISSIONER: Yes, thank you, Mr Lapka, you can go?---Thank you very much.

<THE WITNESS WITHDREW [10.19AM]

PN3137

THE COMMISSIONER: That's the end of the evidence?

PN3138

MS McKENZIE: Yes.

PN3139

MR McINERNEY: Yes, Commissioner, that's the end of our evidence. I would be happy to move into our closing submissions.

PN3140

THE COMMISSIONER: Yes.

PN3141

MR McINERNEY: Commissioner, I have prepared a write outline of our submissions which I would just like to hand up.

PN3142

THE COMMISSIONER: Yes, thank you.

PN3143

MR McINERNEY: Commissioner, I just apologise for the writing on the page there.

PN3144

THE COMMISSIONER: It's okay.

PN3145

MR McINERNEY: Commissioner, basically there's been three issues in dispute between the FAAA and the company, one obviously being the Bonaventure Hotel in downtown Los Angeles; secondly, the Radisson-Lexington Hotel in New York; and the third issue that we raised was the issue of the inspection of hotels used to accommodate flight attendants in Singapore. I think we have agreed that in terms of the New York issue that that issue wasn't going to be pressed following comments made by Qantas in relation to that matter and the fact that crew are not currently being accommodated at that hotel.

PN3146

Commissioner, I will just briefly just touch on the inspection procedure firstly. Our submissions are on page 25 of the outline that I have just provided and then I'll move onto our submissions in relation to Bonaventure Hotel. In terms of the inspection procedure, it is our submission that it's the implicit understanding of the parties to this matter that clause 17 requires that the FAAA is entitled to inspect hotels used to accommodate cabin crew supports. This has been the custom and practice of the parties since the inception of that provision.

PN3147

It is our submission that there would be no other way for clause 17 - I'm sorry, for the parties to - for the FAAA to ensure that the standards set out in clause 17 are met. Furthermore, clause 17.1.4 provides that:

PN3148

Either party may proposed a change to the existing arrangements being the hotel accommodation.

PN3149

This provision again, Commissioner, would require - that to be of any effect would require that the FAAA be entitled to inspect crew hotels.

PN3150

THE COMMISSIONER: Where is there a copy of the agreement? I'm sure it's attached to someone but - - -

PN3151

MR McINERNEY: I'm sorry, the clause that - - -

PN3152

THE COMMISSIONER: Well, the relevant clause - this will due, yes.

PN3153

MR McINERNEY: That's set out in the dispute notice, Commissioner.

PN3154

THE COMMISSIONER: Yes, that's right. There doesn't - why do you say that there's - the FAAA has other than custom and practice it has a role in inspecting hotels?

PN3155

MR McINERNEY: Commissioner, basically on two matters. We note that there's no actually specific provision there in that clause setting out an inspection right as such. However, it's our position that there's no way of insuring that that provision is met or the standard set out in that provision is met unless the FAAA indeed can inspect the hotel. And secondly, the provisions set out there in clause 17.1.4 which effectively grants a right for either party to propose a change to the hotel management, that again would require that the FAAA have the right of inspection of the accommodation.

PN3156

THE COMMISSIONER: Well - yes, okay.

PN3157

MR McINERNEY: Commissioner, I guess just on that as well, in terms of the custom and practice I guess the way that that's been interpreted by the parties is set out in the statement of Mark Agar.

PN3158

Commissioner, in relation to the Bonaventure Hotel clause 17 sets out that cabin crew must be accommodated in first class accommodation as defined in that clause. We submit that the Western Bonaventure Hotel in downtown Los Angeles does not meet the first class standard set out in that clause for a number of reasons. Firstly, we submit that the hotel is not of a high security standard with regard to the location of the hotel premises as required by clause 17.1.2(a). Secondly, many of the hotel room in which cabin crew are accommodated are not free of extraneous noise and other factors which provide adequate rest as required by clause 17.1.2(b).

PN3159

Thirdly, and probably most significantly, Qantas has not paid due regard to the locality, the environment inside and outside of the hotel, noise and the availability of acceptable standards for meals and services as required by clause 17.1.3. If I could just deal with that last issue first, Commissioner, that is clause 17.1.3, this is the most significant issue that has been presented. It's clear that Qantas has not paid attention to this provision of clause 17 in selecting this hotel.

PN3160

The environment outside of the hotel, Commissioner, is particularly a problem after normal business hours and on weekends when the area is deserted of people. Cabin crew have raised numerous issues including physical assaults, threats of sexual assault. There have been crew witnessing drug dealing and drug taking. The crew have been subject to harassment, intimidation and aggressive approaches for money.

PN3161

Now, this has been set out, not only through the witnesses that we have brought before you over the past few weeks but it's also been set out in the attachment to Ms Taranto's statement where she details the ICANs and also the attachment to Mr Agar's statement. He also details the ICAN reports. And Ms Taranto also in her own oral evidence also confirmed that crew had raised these issues with the company.

PN3162

Commissioner, this is not an acceptable environment for cabin crew to be located. It certainly cannot be the classed as first class accommodation in such circumstances. Peter Green and Len Morrison, both former police officers, have identified that this is a dangerous area. They have both witnessed drug dealers near to the hotel and aggressive behaviour of locals. Peter Green described the drug deals that he saw as being very heavy. He saw bags of white powder and very menacing looking people. He says that this was a dangerous situation.

PN3163

Mr Green also considers that it is only a matter of time before a crew member is a victim of crime. He recognises that the behaviour experienced by crew on the streets of downtown Los Angeles can occur in other cities but not with the same frequency as occurs in downtown Los Angeles. Mr Green also notes that outside of normal business hours and on weekends the city empties out. He notes the large number of beggars and homeless persons in this area and identifies that cabin crew stand out. They typically - that is cabin crew - are typically white skinned, well dressed with a fair amount of cash on them , compared with the predominant local population of a poorer socio-economic group and racially a large portion of Latin Americans and Afro Americans. Mr Green also notes that cabin crew are conspicuous on public transport.

PN3164

Ms Cecchin experienced being followed by a person on the street. The person would not let up following her and this was a weekend with no one else around. Ms Young and two of her colleagues experienced a serious threat of sexual assault travelling on a bus back to the hotel. Ms Young has also been approached by numerous people heckling her and asking her for money on the streets. She notes that this occurs every time she leaves the hotel. Mr Green also observes that it's not easy to avoid the dangers of walking on these streets. He notes that you basically have to walk everywhere, to the supermarket, to get some fresh air or to use public transport.

PN3165

Mr Barnett experienced a man coming up to him at the bus stop and blowing crack cocaine smoke all over him. Mr Barnett has also been subject to verbal abuse on the streets typically after refusal to provide money. Mr Morrison was accosted by a woman for money that became agitated and began swearing at him following her refusal to provide money. Mr Morrison also saw three men who appeared to be assaulting a young person. Mr Morrison also experienced another woman becoming abusive after he did not provide any money. Mr Morrison did not see any police in that area. In my Mr Morrison's experience in select ports you are not normally the subject of this form of behaviour.

PN3166

Mr Kenny was threatened with a large hunting knife near to the hotel. Mr Kenny has never encountered the extent of harassment and intimidation that occurs on the streets around the Bonaventure. Whenever Mr Kenny goes outside he is confronted by beggars and drug dealers. He considers it such a regular occurrence that to consider writing further ICANs or reporting to the police would not be of any assistance. Mr Kenny identifies that on weekends the area is like a ghost town, no people on the streets except beggars and drug dealers. He has been harassed and intimidated on the streets around the hotel. Last time he was there he saw a drug deal within 3 metres of himself. He notes that it did not make him feel comfortable.

PN3167

Vanessa Dunn found in her inspection that it's not safe to go outside of the hotel after normal hours and on weekends. Her inspection found that during the week between 9 to 5 there are lots of people there. However, after that time the place becomes deserted and on the weekend it's like a ghost town. Mr Mackey in his evidence acknowledged that drug using and drug dealing occurs in the area of downtown Los Angeles near to the hotel.

PN3168

The downtown area provides a security service commonly referred to as the "purple shirts". No witness brought before this Commission has ever experienced the private security service of this kind in any other port. There can be no need for such a security service unless there is in fact a problem with security in this area. Mark Agar notes that the purple shirts do not operate on weekends or at night. Paul Menzies also confirms that the purple shirts do not work in evenings. Mr Mackay also provided evidence that there are abusive vagrants in the area of this hotel.

PN3169

Commissioner, the experience of the crew as reported in their ICANs and annexed to Ms Taranto's and Mr Agar's statement are consistent with the experiences of the witnesses brought before his Commission.

PN3170

Commissioner, a number of the witnesses also classified this hotel as the most dangerous or the worst hotel that they have stayed at. Ms Cecchin has 10 years of flying experience and considers this hotel to be the most dangerous of all current hotels. As a consequence she doesn't bid for LA trips as a result of the safety concerns.

PN3171

Mr Green, 18 years flying experience, considers that it's the worst and most dangerous location of all crew hotels in the US. Mr Green consequently did not bid for LA trips whilst he was located in the Sydney base. Mr Barnett, 12 and a half years' flying experience, also considers that this is the most dangerous area in which cabin crew are located. Mr Kenny, 31 years of flying experience - he says this is worst of all current crew hotels. We have just heard from Mr Lapka who also confirms that in his flying experience this is the most dangerous location of all crew hotels. Commissioner, there has been no evidence to dispute these assertions.

PN3172

As a consequence of the environment in which this hotel is located, cabin crew have been required to modify their behaviour. At the Bonaventure crew have to back in the hotel before it gets dark and they are extremely cautious about going out on the weekend. They also have to make sure that they can find another crew member to go outside with. Commissioner, in our submission, these modified behaviours are inconsistent with a standard of first class accommodation and inconsistent with the purpose and intent of clause 17.1.3. The purpose of this clause is to ensure that cabin crew are accommodated in appropriate environments such that crew may lead an ordinary life during their rest break. This includes being able to do the most simplest of ordinary life tasks such as going for a walk without fear of their safety, or going to a supermarket to get supplies.

PN3173

For cabin crew hotel accommodation becomes their home away from home. They spend much of their lives staying in hotels across the globe. It's important for crew that the area in which a hotel is located makes it possible for them to adopt an ordinary life while in port. Ms Cecchin noted that if she runs out of water she can't simply go out and buy more water. She can't go out and get fresh air. She likes to walk around and just feel normal for a while but feels that it's impossible to do this in Los Angeles for fear of her safety. Mr Barnett also noted he's distressed and nervous about going outside, out of normal business hours. He finds this difficult to organise a day-to-day routine, to get some fresh air or something to eat.

PN3174

Len Morrison, a former police officer, only travels outside of the hotel in a car because he feels it's much safer. Mr Kenny won't go outside of an evening for fear of his safety. He will always be back by dark. He stresses in his evidence the ability to be independent is very important for crews in port. Ms Young brings her own food and supplies from Australia to avoid having to leave the hotel. Commissioner, Ms Taranto in her evidence acknowledged the group reported that they feel they cannot go outside for fear of their safety. She also acknowledges that crew report feeling trapped inside their hotel.

PN3175

Commissioner, Qantas knows that there are problems with the location of this hotel. This is the only reason why they went to the trouble of providing such an extensive information pack for crew which I believe is the attachment to Ms Taranto's statement. This is something which has never been done before. Qantas knows that there are problems in the downtown area and they accept these problems.

PN3176

Cabin crew managers don't feel it necessary to immediately contact staff about their incidents. For example, Peter Green was not contacted until 4 months after submitting his ICAN. Richard Barnett was contacted 4 months after his reports. Ms Cecchin was contacted 5 months after her report.

PN3177

Qantas maintains that it has investigated the serious safety issues and that this does not change their view of the security level. Qantas does not however provide any evidence to back this assertion. There is no evidence of these investigations or their findings. There is no evidence to show that the crew reports have no basis. We also note that Qantas chose not to bring before the Commission the Qantas security officer who supposedly conducted these security investigations, Mr Andrew Stewart. We submit that adverse inferences must be drawn from the failure to provide this witness.

PN3178

Commissioner, the only information that Qantas has brought to dispute the issues that have been raised by crew include: firstly, the operations manual. Qantas asserts that crew did not follow their personal safety policy but there's no evidence that's been supplied of how and when they did not follow this policy, not even in relation to the witnesses that have been brought before the Commission by the FAAA.

PN3179

The only part of the safety policy that appears not to have been followed relates to the carrying of a torch and a whistle and it seems that all Qantas personnel including Mr Mackay, the Qantas security officer himself were guilty of this breach. In such circumstances, it's not possible for Qantas to seek to rely on this policy. Mr Green and Ms Cecchin also informed the Commission that Qantas does not issue torches and whistles, except torches for night patrols on the aircraft. In any event, Commissioner, the Qantas operations manual should not dictate how crew should have to behave during their rest break. For example, Peter Green acknowledges the problem of what clothes he should wear. Should crew have to dress to the point where they feel dirty just to fit it with the local crowd?

PN3180

Qantas also suggests that because crew did not report their issues to the LAPD that the concerns are somehow not real and cannot be relied upon. There's no basis to this assertion. Ms Taranto indicates that Qantas security discussed the issues raised by cabin crew with the LAPD. However, this fact is disputed by
Mr Mackay. Mr Mackey said that the issues are left for the so-called victim to discuss with the LAPD.

PN3181

Mr Green says the drug dealers are operating so openly that he assumed police would be aware of them. He says that he did not contact police because he escaped without injury. Ms Cecchin did not report to the police because she also was not injured; similarly, with Mr Barnett. Mr Morrison says he didn't contact the police because he didn't see any around. He was just happy to make it back to the hotel.

PN3182

Mr Kenny notes that he has never encountered the extent of harassment and intimidation that goes on around the Bonaventure. He says that whenever he goes outside he is confronted by beggars and drug dealers. He says it's too regular an occurrence to consider writing further ICANs or reporting to the police. Mr Kenny also replies that Qantas has not made crew aware of the location of the LAPD or indeed the Los Angeles County Sheriff's office.

PN3183

Qantas also has raised the issue of the bidding system that suggested that cabin crew can avoid going to Los Angeles by use of the bidding system. Well, Commissioner, this is just not possible for a number of reasons. Firstly, the reserve line: cabin crew on reserve line can't dictate where they go on a slip port. Ms Cecchin noted that she was required to do a few trips to Los Angeles while she was on reserve. Secondly, the Brisbane and Melbourne bases, the majority of their flying is to Los Angeles. In any event, the issue of bidding should not be the basis upon which an environment is determined satisfactory. It's not set out in clause 17 and the assertion would also mean that it's okay for junior crew to be subject to inappropriate environments and this is not acceptable.

PN3184

Commissioner, Qantas also says that crew are including standing bids to Los Angeles. However, standing bids are not easily changed by crew. In any case, the evidence of Ms Cecchin was that everyone has Los Angeles in their standing bids. It's simply a matter of prior which is assigned to those bids. Qantas has also suggested that other ports are similarly as dangerous and they suggested Jakarta. They suggested Manila. However, crew stay in the safest parts of Johannesburg. The security is significantly enhanced at this hotel. There are men in uniforms carrying guns inside of the hotel.

PN3185

Qantas also suggests that crew are not reporting these issues to the hotel. Well, we say, Commissioner, that it's not the duty of cabin crew to assist hotels with their security function. It's inconsistent with their role as guests of the hotel. Qantas also suggests that if crew had concerns about the area they would have attended the crew forums. However, in Cheryl Young's case there was no crew forum to go to before her incident. More importantly, Commissioner, the reason that was advertised for the forums was to discuss Qantas business-related matters. They were not advertised as forums for crew to provide feedback. To attempt to give these meetings some new meaning is misleading.

PN3186

Furthermore, the crew forums were on at a time when crew would normally be waking from their rest. There's only a short period of daylight between that time and when they must return to the hotel for fear of their safety. This would certainly be a further reason why crew did not attend these forums.

PN3187

Qantas has also made suggestions that crew can avoid the dangerous area of Los Angeles by catching taxis. We submit, Commission, that crew should not have to rely on catching taxis to insure their safety in Los Angeles. Furthermore, if indeed this is the type of place it is, then Qantas is clearly agreeing that this is not a safe area. Again, this is not consistent with the requirements of clause 17.
Ms Young notes that she has never been told about a requirement to catch taxis and neither has Mr Green. Ms Young and Mr Green both know the difficulties in catching taxis in Los Angeles in any event. Commissioner, there's also been no evidence brought before the Commission to suggest that Qantas has provided cabin crew with information about catching taxis in downtown Los Angeles. We also note that Qantas does not provide crew with an allowance for catching taxis in the area.

PN3188

Commissioner, Qantas has also raised the suggestion that cabin crew receive sufficient allowances whilst they're in Los Angeles to catch taxis and avoid this issue. However, the suggestion that the purpose of this allowance can somehow be reliant to address the issues in this dispute is absurd and is rejected. The allowances that are provided to crew are for matters that don't come under the scope of this dispute. The allowances are provided and are calculated for matters that are unrelated. The allowances are set out elsewhere in the EBA. They are not provided for the pos of catching taxis so that crew may avoid walking in the dangerous environment which is downtown Los Angeles. Ms Taranto has also suggested that somehow the exchange rate comes into play here. Again, we submit this is an absurd argument which has no basis either in fact or upon the evidence that has been brought before this Commission.

PN3189

Commissioner, Qantas relies on the security investigation in determining that this is a safe environment or that there is a low risk in this environment but has refused to table any information about this investigation. Mr Mackay had certain assertions about crime statistics in this area but again we have not seen these statistics. If indeed the crime statistics are so remote, Qantas would have surely tabled this information. There has been no adequate reason provided to explain why Qantas did not present this information in evidence. Adverse inferences can only be drawn from the refusal by Qantas to table this information. Ms Taranto also says that Qantas was feeding information back to the LAPD. However, this is contradicted by Mr Mackay who says that it's the so-called victim who is required to take up issues with the LAPD.

PN3190

In terms of the issue of ICANs and FAAA newsletters, the issues in this dispute have been set out clearly in the ICANs submitted by crew. Ms Taranto attached a summary of the ICANs and Mr Agar has also attached a summary of the ICANs as they relate to security issues and to noise issues. It does not appear that the issues that have been raised by cabin crew in their ICANs is in dispute. Ms Taranto has confirmed that these matters were raised by crew in their ICANs. The evidence contained within the ICANs should be accepted by the Commission.

PN3191

Ms Taranto suggests that the reason for all these ICANs is because it is top of mind for crew but there's no evidence to support this, Commissioner. There were numerous FAAA letters detailing a variety of issues that were distributed during the relative period. Furthermore, the articles in Cabin Crew News to which
Ms Taranto referred were but only a small portion of the information contained within that publication.

PN3192

Peter Green notes that it's only second every ICAN on hotel security in his 18 years that he submitted. Mr Green only writes ICANs if he feels there is a serious issue. Furthermore, he can't recall seeing the FAAA newsletter to which Ms Taranto referred as he notes that "we flew without a lot of information". Richard Barnett also informed the Commission that the FAAA have asked for any incidents anybody to any hotel to be reported, not just the Bonaventure.

PN3193

Mr Barnett said in evidence that he felt that the company was not taking any interest in the ICANs that were submitted so he gave up writing them. This is the real reason for any drop off in the number of ICANs as suggested by Ms Taranto. Mark Agar from the FAAA indicates he's never seen this level of response before and probably nothing comes really close. He notes that it is significant to receive this number of ICANs. He compared it with Shanghai and Bombay where he's only received four or five ICANs in relation to those hotels and they were also new hotels. Mr Agar says quite clearly that these ICANs were not solicited by the FAAA as suggested by Ms Taranto. He notes that in his newsletters he always includes a reference asking crew to report problems about hotels.

PN3194

Commissioner, what's become apparent is that Qantas chooses when it is suitable for itself to take into account crew feedback. Paul Menzies agreed that he has taken into account ICANs from crew in relation to the Anaheim property and in terms of the crew transport issues. Ms Taranto suggests, Commissioner, that the actual number of ICANs received is not significant. She compares the number of ICANs received as against the number of room nights. All we suggest, Commissioner, is that this item has no basis. The suggestion is extremely misleading and misrepresents the true significance of the number of ICANs that have been reported.

PN3195

A proper comparison is against the number of ICANs submitted on hotel issues or even the number of ICANs submitted on any issue. Ms Taranto suggested that there have been large numbers of ICANs in relation to a galley curtains issue. However, this has not been supported by the evidence. Ms Taranto also says that multiple crew have not signed individual ICANs. This is inconsistent with the evidence of Mark Agar and his attachment. There are a number of matters - or ICANs in that attachment which show that numerous had signed that ICAN.

PN3196

Qantas suggests that the ICANs have dropped off and that this means that crew are not concerned about the issues any more. This assertion again is not supported by any evidence. Rather, a more appropriate inference would be that crew felt that once they had reported the issue that this was sufficient for the company to be aware of the issue and deal with it. As I noted, Mr Barnett said that he did not write subsequent ICANs because he felt the company was not listening to his ICANs.

PN3197

Qantas also suggested the FAAA had a predetermined view about this hotel, that the issues were only raised because Qantas and the FAAA were in dispute over the hotel inspections arrangements. Well, Commissioner, this is just clearly not supported by any evidence. In terms of this clause 17.1.3 we would also submit that there is an ongoing obligation upon the company to monitor the matters raised. It would be an absurd position to propose that this provision is somehow extinguished upon a first inspection and/or selection of a hotel. There will always be circumstances which may change from time to time. Despite all of these issues being raised by crew, particularly in relation to the area outside of the hotel after hours and on weekends, Qantas did not inspect the hotel or the area at this time. Qantas security undertook a second inspection of the hotel. However, this was during the daytime midweek.

PN3198

Commissioner, a further requirement of this clause is that there be availability or that Qantas - I apologise - that due regard must be given to the availability of acceptable standards of meals and services. This availability is a problem particularly on Sundays. Cheryl Young noted the difficulties in obtaining supplies on weekends. Crew should not be limited to Subway sandwiches, Commissioner. This is not the intention of this provision. Mr Barnett noted that virtually was open on weekends. There is nowhere to obtain food other than junk food.

PN3199

Ms Dunn identified in her inspection report that there are various restaurants in the hotel but many of these close at night and outside of business hours. Crew therefore have to go outside the hotel to access food and this is particularly problematic given the safety concerns. Paul Menzies also identified that some of the restaurants close on Sunday. He says that most are open Monday to Saturday.

PN3200

Mark Agar identified that only 25 per cent of retail outlets are currently open. He further suggested that perhaps this could be up to 40 per cent. Paul Menzies says that it's 75 per cent. However, this was based upon his inspections in November and January. Mark Agar has clearly been there more often than Mr Menzies, more recently than Mr Menzies and is in a better position to assess this. His evidence should be preferred.

PN3201

Paul Menzies also confirms in his evidence that when he does his inspections he's not measuring standards of meals and services. It's a requirement of clause 17.1.3 that in selecting hotels and accommodation due regard should be given to the availability of acceptable standards of meals and services and this is clearly not being done.

PN3202

Commissioner, the second issue or a further issue in relation to the hotel is the security of the hotel. Clause 17.1.2(a) requires that the hotel must be of a high security standard with regard to the location of the hotel premises. As we have just described, the location of this hotel is dangerous. At first class establishments crew should not be required to personally monitor their security. Mr Green noted that this hotel in his view does not provide sufficient security having regard to its location. The hotel is open, anyway can enter as they please. He's not seen any doormen or any security. He's not seen any security on the lift towers and he's not seen any - and he observes that any person can access any of the floors.

PN3203

Mr Green has never seen any security on the hotel entrances or at all, not even after hours. Mr Agar has never seen any security at the hotel. Ms Young has never seen a security guard at the hotel. Mr Barnett was harassed in the hotel coffee bar. He didn't see any hotel security and this is despite the fact that
Mr Mackay advises that the majority of security staff wear uniforms of this hotel.

PN3204

Ms Cecchin was subject to a serious threat of sexual assault within the hotel itself. She was subsequently rostered to do two trips to LA and paid particular attention to security at the hotel. She noted that the front entrance at least had doormen only and no security. She noted that there was no security on the other entrances. The public can access the rest of the hotel via these other entrances. Ms Cecchin also identifies that first class hotels generally have people walking around the areas so if people are simply lounging around in chairs, such as in the experience that she had, then they are asked what they are doing there. Ms Cecchin has 8 years' hotel experience and she notes she's never experienced a situation where a supposed guest would harass another.

PN3205

Mr Agar does not consider that the hotel is safe and he has stayed at this hotel on numerous occasions. Other crew have similarly reported security incidents within the hotel. Vanessa Dunn identified through her evidence and her inspection that the Flower Street entrance to the hotel has a doorman until 11 pm and then a security guard but she also notes that the security guard leaves the post to do roving patrols.

PN3206

Vanessa Dunn during her inspection was also made aware that a female flight attendant was sexually assaulted at this hotel in 2001 after being forced into her room. John Marco was the head of security at the Bonaventure at that time. Information was not provided to Qantas security when they performed their security inspection of the hotel about this incident despite Mr Mackay meeting with Mr Marco. This is a significant incident which would clearly have particular resonance with cabin crew staying at this hotel. This matter should have been brought to the attention of Qantas.

PN3207

Vanessa Dunn was also made aware in 2004 that there was a shooting in the bar located at the ground level of this hotel and that a rag dripped in chemicals was tied to the door. This information was also not provided to Qantas security when they performed their security inspection of the hotel. In terms of the layout of the hotel, Mr Agar notes that the design is unique. He's never seen so much access to the hotel from outside. Most hotels he has stayed at, you go past the reception to the lift where there are bell people. In this hotel however, it's easy for the public to access the guest elevators, the pool area and the foyer.

PN3208

Ms Dunn identified that the safety of crew is compromised by the fact that there are three or four levels of general public access to this access. The public can enter the hotel premises and therefore enter the hotel lifts and the guest floors without any kind of screening. There are no cameras on the guest floors. Richard Barnett also identified that the elevators in hotels are usually in a secluded area past reception. However, this hotel has numerous elevators spread out over a large area. Mr Barnett also noted that he was also able to travel on lifts between the foyer and the room level without problems despite signage to the contrary.
Mr Menzies noted that it's unusual to have retail outlets within a hotel. He notes that there are many properties with shopping centres adjacent to hotels or to the Qantas hotels but not actually within the complex.

PN3209

Qantas relies upon the investigations conducted by Mr Mackay in relation to the hotel's standard of security. Mr Mackay's assertions in relation to the hotel security are in the most part based upon the discussions he had with the hotel representatives. These representatives did not provide Mr Mackay with all relevant information in relation to security incidents at the hotel. The hotel representatives and the Downtown Business Improvement District, who both informed Mr Mackay in his security inspections, both have a vested interest in advising Qantas that the hotel and its location are secure.

PN3210

Mr Mackay was informed that there are 30 hotel security staff. This, however, is inconsistent with advice provided to Vanessa Dunn by the hotel that there are 20 security staff and that there are six on at any time. Mr Mackay is not aware of the exact number of security staff on at any time. Mr Mackay was also not aware of the security arrangements at the pool area. We also note that Mr Mackay did not stay at the hotel on any of the inspections. It is also apparent that the hotel's CCTV security coverage is inadequate.

PN3211

Commissioner, Qantas has not provided any other evidence to establish in these proceedings that the hotel is of a high security standard. Qantas has failed to provide a copy of its security report prepared by Mr Mackay. Adverse inferences should be drawn against this failure. In view of the evidence that has been presented to this Commission, we submit that there is no basis upon which Qantas can rely to assert that this hotel is in fact of a high security standard.

PN3212

Commissioner, we also note the contradiction of Qantas security warnings themselves. Qantas Security has issued warnings to crew to, during periods of heightened alert, avoid prominent buildings and monuments that could be potential terrorist targets, and care should be taken in business districts in popular tourist areas. Paul Menzies for Qantas confirmed that the Bonaventure is in fact a prominent building and that it was in fact one of the most photographed buildings in Los Angeles. He also confirms that the area is a business district. Consequently, on this issue it is not possible for Qantas to assert that this hotel is of a high security standard in regard to its location.

PN3213

Commissioner, a further issue relates to the privacy in the crew rooms. Mr Agar stated that the hotel rooms lacked privacy. Ms Cecchin stated that every room she stayed at at the Bonaventure has not offered sufficient privacy from persons arriving in the elevators. Mr Menzies suggests that perhaps 10 to 20 per cent of rooms at the hotel face these lifts. It's not possible, Commissioner, in our submission, to assert that the hotel rooms are first-class accommodation if they do not afford privacy to occupant unless black-out curtains are fully drawn. It's not sufficient to meet the standard of this clause for Qantas to assert that most flight attendants receive private rooms or that the hotel will consider changing rooms where rooms are available. The clause applies to every room that is utilised by cabin crew.

PN3214

Commissioner, a further issue relates to noise. Qantas is required to have due regard to noise in accordance with clause 17.1.3. Commissioner, Qantas was aware that noise was an issue prior to accommodating crew at this hotel.
Mr Menzies made this clear in his statement and his oral evidence. They were aware of the proximity of this hotel to the major freeways and they were aware of the extent of adjoining rooms. Despite this, in determining whether noise would be an issue for cabin crew, Qantas relied upon only the experience of the chief pilot, and this was on one occasion that the chief pilot stayed there. The chief pilot was not even called as a witness by Qantas in this matter, and this evidence must be given little weight. Consequently, in selecting this hotel, Qantas has not had due regard to the noise as required by this clause.

PN3215

Commissioner, clause 17.1.2(b) also requires that rooms in which cabin crew are accommodated are free of extraneous noise and other factors which prevent adequate rest. Noise is a significant issue at this hotel and is impacting upon crew rest requirements. The sources of noise include and result from the location of the hotel alongside a major freeway which takes large volumes of traffic at all hours. The traffic noise, including regular sirens from emergency vehicles, is clearly audible from crew rooms regardless of the height or level of the room but particularly in those rooms facing the freeway.

PN3216

Crew rooms also have adjoining doors which are not adequately insulated from noise from the adjoining guest rooms. Consequently, crew have been exposed to noise from people talking, people watching television, people going to the toilet, having a shower, and cleaners, among other things. This is particularly problematic given the different sleeping patterns of crew to other travellers and even between crew themselves.

PN3217

Crew who have been located in rooms near to the elevators have complained about the constant sound of elevators travelling up and down the outside of the building. A number of crew have also indicated that they have resorted to sleeping tablets, simply because of the level of noise. Ms Cecchin considers that the rooms are subject to higher noise levels, which disturb her rest. She considers that the hotel is probably the noisiest hotel of all crew hotels and that placing cabin crew in adjoining rooms does not defeat noise issues, as cabin crew typically have different sleeping patterns.

PN3218

The issue of noise has also impacted upon the rest of Richard Barnett. He also considers that the hotel is the noisiest of all hotels he stays at frequently. Vanessa Dunn identified the issue of noise during her inspection of the hotel. Mark Agar also noted the issue of noise as significant. In fact, more than 90 crew have complained about noise during the period 17 March to 16 July.

PN3219

Numerous crew have reported the issue of noise to Qantas. Ms Taranto in her evidence acknowledged that noise is the second most significant issue that has been raised by crew in relation to this hotel. She confirms that there have been two primary noise issues: adjoining doors and freeway noise. Qantas suggests that the hotel will not allocate crew to adjoining rooms where possible. However, this is not good enough. The requirement in the EBA applies to all rooms within the hotel in which cabin crew are accommodated. It's not the case that this provision only requires that most of the rooms are not affected by noise which disturbs rest. The requirement applies to all rooms and cabin crew.

PN3220

Qantas also suggests that, where it's not possible to give crew rooms which are not adjoining rooms, then it will allocate crew members to adjoining rooms.
Ms Cecchin noted that this does not defeat the issue given the different sleeping patterns of crew. Crew are still being allocated rooms with adjoining doors, which is affecting rest. This can be seen in Ms Taranto's exhibit, QF4, particularly on the last page. Qantas is aware that rooms are being allocated to crew despite the fact that Qantas had asked the hotel not to accommodate crew in rooms with adjoining doors.

PN3221

Accordingly, Commissioner, in our submission, all rooms in which cabin crew are accommodated at this hotel are not free of extraneous noise which prevents adequate rest. As a consequence, this hotel is not first-class accommodation within the meaning of that term in clause 17. Commissioner, for the abovementioned reasons, it is our submission that this hotel does not meet the standard of first-class accommodation set out in clause 17. Thank you, Commissioner.

PN3222

THE COMMISSIONER: What order is it that you seek?

PN3223

MR McINERNEY: Commissioner, we seek an order that this hotel is not first-class accommodation within the meaning of that term in clause 17.

PN3224

THE COMMISSIONER: Yes.

PN3225

MR McINERNEY: And that cabin crew should be relocated to a hotel which is first-class accommodation within the meaning of that term in clause 17.

PN3226

THE COMMISSIONER: Thank you. Yes, Ms McKenzie?

PN3227

MS McKENZIE: The proceedings before the Commission arise by way of the dispute settlement provision in the enterprise bargaining and under section 170LW and, accordingly, the Commission is being asked to settle a dispute over the application of the agreement. As Mr McInerney said, there were initially three issues in dispute. One concerned the standard of accommodation in New York. We note the position of the FAAA, with which we agreed, that that has been put to one side.

PN3228

The second issue concerns the Bonaventure, and the third issue concerns the complaint about the inspection process and the FAAA's role in inspecting future hotels. As we foreshadowed earlier on in the proceedings, in our submission, the Commission does not have jurisdiction to deal with that part of the dispute which concerns the inspection process, because that is not a matter which can arise within the scope of the dispute settlement procedure provision because that clause must by virtue of section 170LW be confined to disputes over the application of the agreement, and the agreement does not contain any provisions which deal directly or indirectly, in our submission, with the actual procedures by which hotels are selected and, more specifically, the role the FAAA would have in any inspection of hotels.

PN3229

To the extent that the dispute concerns the inspection process and the FAAA's participation in that and the way in which the hotel is selected, that cannot be something which is capable of being a dispute arising under the dispute settlement procedure clause. We did reserve our position in the event that the Commission found it had jurisdiction in relation to the inspection process - we would then like an opportunity to call any further evidence and put submissions in relation to that, because the way in which the case proceeded was that there was not any real attention given in the proceedings to the issues of the inspection having regard to the threshold jurisdiction issue that we raised.

PN3230

The live issue which remains in the proceedings concerns the Bonaventure and whether it is a first-class hotel within the meaning of the agreement. The standard of accommodation applicable to crew is dealt with in clause 17.1 of EBAIV, which because of its incorporation or reference in subsequent EBAs remains the current provision, and 17.1 deals with accommodation generally. There is a general statement that flight attendants must be provided with first-class accommodation and there is a provision which is not relevant for present purposes which gives the company the option of paying an allowance in lieu of the provision of accommodation. The agreement doesn't define the term first-class accommodation as such but it goes on to say in clause 17.1.2 "for the purposes of this clause first-class accommodation includes but is not limited to", and there are then a number of particular matters, (a) through to (k).

PN3231

In our submission, these matters do not carry any particular weight in respect of each other. They are matters which are factors to be taken into account in considering overall whether there is first-class accommodation. But they are not preconditions or tests in respect of which the standard of accommodation stands or falls. They are matters which are relevant to the overall consideration and they need to all be considered as a whole in their total context, and it will always be the case that the degree of compliance or the relevance of any one of those factors to any particular hotel will vary having regard to the particular circumstances of the hotel.

PN3232

The matters which the FAAA rely on primarily to support the claim that the Bonaventure is not first-class accommodation is, as we understand, the way the evidence and the submissions have fallen, subparagraph (a), that the hotel be of a high security standard with regard to the location of the hotel premises, the hotel security procedures and the individual room protection. We understand that the first part of that requirement, that the hotel comply with fire safety and hygiene standards, is not relevant and that the only alleged non-compliance with (a) relates to the requirement that it be of a high security standard.

PN3233

We understand that (b) is not in issue except in relation to a requirement that accommodation be free of extraneous noise and other factors which prevent adequate rest. (c) is not in issue in the sense that there is no dispute that the Bonaventure complies with the requirement in (c). It complies with (d). It complies with (e), it complies with (f), it complies with (g), it complies with (h). There has been some issue in relation to the degree of compliance with (i). In our submission, there can be no doubt that restaurant facilities are provided with within the hotel and room service is available, but there has been some evidence directed to the sufficiency or adequacy of those facilities. But on the face of it, in our submission, (i) has been complied with, (j) has been complied with, (k) has been complied with.

PN3234

Then separate to the list of factors which are relevant to the consideration of first-class accommodation, there is a requirement in 17.1.3 that in selecting hotel accommodation due regard must be given to the locality, environment inside and outside of the hotel, noise, transport, availability to an acceptable standard of meals and services.

PN3235

In our submission, it is clear from clause 17.1.3 that it is the responsibility of Qantas to select hotel accommodation. But in doing so, it is to have due regard. Of course, the agreement doesn't attempt to define and nor could any agreement, attempt to define what would constitute due regard. In our submission, the appropriate approach would be to treat due regard as akin to taking reasonable steps or use reasonable endeavours or take into account in a reasonable way. That, in our submission, is the sense that "due regard" should be given. And then 17.1.5 and .6 are not relevant.

PN3236

The question then, having regard to the particular very specific confined issues of the dispute that arise, is what is the nature of the obligations that the EBA imposes on Qantas when it is providing crew accommodation and how does one properly and reasonably determine whether those obligations have been met? In simple terms, the debate about whether the Bonaventure is first-class accommodation really narrows down to whether the location of the hotel affects adversely whether the hotel is or is not of a high security standard, and whether the hotel is free of extraneous noise or whether the rooms are free of extraneous noise and other factors which prevent adequate rest.

PN3237

In assessing those and giving consideration to those, in our submission, the Commission has to take into account that the accommodation is being provided by a commercial premises. It is a hotel and of necessity first-class accommodation or hotels which meet all of the requirements in 17.1.1 - or point 2 - will almost always be large hotels, will almost always be hotels which have at any one time a reasonably large population of guests, and a hotel which is going to contain the facilities which the EBA requires be considered as relevant to first-class accommodation, such as restaurant facilities, recreational facilities, 24-hour open facilities. It is going to be the case that the hotel is also going to be a hotel which is going to be open to the public for much, if not all, of the time, because they are the characteristics of a hotel which will contain or have those features.

PN3238

In considering the adequacy or level of standard of the amenities set out in the EBA, in our submission, the Commission has to consider those in the context that I've described, that the premises will be large, they will be commercial premises, they will be available to the public, they will have large populations. When one is considering factors such as, for example, and I will come to this later, the degree of noise, one also has to take into account that there is a degree of noise which is generated by those essential characteristics or features of a hotel which cannot in any reasonable way be expected to be eliminated or removed or absent from the hotel which is being considered.

PN3239

The second guiding principle, in our submission, that the Commission should have regard to, particularly in circumstances where there is conflicting or competing evidence, is to consider and give preference to evidence which is by way of factual evidence which is objective and stating facts which are relevant to the consideration as against opinion or subjective evidence which is really descriptive of people's feelings or opinions or views, unless that opinion or view is substantiated by some factual basis. Because one of the features of these proceedings has been that the FAAA's case has relied substantially, if not wholly, on the subjective opinion evidence of flight attendants who stay at the hotel.

PN3240

Although flight attendants are necessarily those people who have the most interest in the outcome because the hotel and the accommodation is provided for them, and they are obviously very important people in the consideration of the adequacy of the hotel, it is also going to be the case that their opinions are necessarily subjective and motivated by some degree of self-interest. I don't say that in a critical way. It is a fact, though, that the opinions of the flight attendants who are staying at the hotels will be coloured very much by, and is coloured in our submission very much by, their own personal desire or view about where they would like to stay.

PN3241

That evidence is of little assistance to the Commission in considering whether the requirements of the EBA have been met, unless they are substantiated or supported by some objective factual material which the Commission can have regard to, particularly when one has to weigh up conflicting evidence, and there are some areas in the evidence which are very much at odds with each other or in conflict. As a guiding principle, in our submission, the Commission should prefer and should rely or base its findings on the factual objective evidence as opposed to the opinion evidence.

PN3242

In considering, then, the evidence that has been before the Commission, if I can turn first to the evidence of Qantas and say by way of general introduction that the evidence of Qantas should be regarded as expert evidence in the sense that it was given evidence from Mr Menzies, who is the Procurement Manager Commercial, and Mr Menzies is the person who has responsibility for, along with the rest of the procurement department, for selecting crew hotels and other premises.

PN3243

Mr Menzies's statement sets out in some detail the experience and background that he has had in procuring crew accommodation, in paragraph 4. QF1 is his statement. He has personally conducted sourcing, evaluating and conducted process of crew accommodation for Narita, Mumbai, Shanghai, Hong Kong, London, Frankfurt, Jakarta, Melbourne and Los Angeles. It is not irrelevant that in the course of these proceedings, to the extent that evidence has fallen from cabin crew about comparisons with other hotels, none of the hotels mentioned there that Mr Menzies has had involvement would have been the subject of any criticism or complaint as far as the adequacy or suitability of the accommodation goes.

PN3244

Mr Menzies clearly has significant experience in sourcing crew accommodation which has been accepted as meeting all of the requirements of the EBA. Mr Menzies explains the reasons for the need to change crew accommodation in LA and he sets out in his statement - this is evidence which was not contested - that there have been significant capacity problems since there has been an increased frequency of flights from Qantas to the US. He has set out some of the difficulties that have arisen in the past with the existing crew accommodation or the previous crew accommodation in Pasadena, in particular that the numbers of crew required there to be multiple hotels used and the logistical problems that the use of multiple hotels created both in terms of transport and in managing overflow and at particular times of the year, if the Rose Parade was on.

PN3245

So he sets out the fact that they were also some distance from the hotel and that created some further problems. He then sets out in some detail the evaluation process that procurement undertook to assess crew accommodation, and he explains how the process has changed from since 2003 - I'm sorry, prior to 2003, there was a different process in place. He details the steps taken in the new process and he sets out in attachments to his statement the relevant documents in relation to the new process.

PN3246

He says that the Bonaventure or the LA crew accommodation was really the first major accommodation project to be done under the new process and he sets out the procedures that were undertaken in terms of evaluating the initial proposals. He says in paragraph 29 that the search narrowed down to only two viable hotels that could accommodate the high crew numbers and which were on their face identified as fulfilling the requirements. They were the Hilton Anaheim and the Westin Bonaventure. Airport hotels were rejected at that point. He explains that the Hilton Anaheim at that point was rejected because of concerns that Qantas had about service issues, security and complaints from crew who had stayed at that hotel in an overflow capacity in the past, and he explains that the process then focused on the Bonaventure.

PN3247

He then sets out and attaches the very detailed checklists that procurement generate under the process. He explained that the process is initially a self-checking process and that these very detailed checklists were sent to the hotel and they were asked to complete it. There was an initial evaluation and then Qantas subjected that initial assessment to a more exhaustive evaluation, part of which was a site inspection which was attended by representatives of both procurement and cabin crew management, Jane Brunette, and they then commented on the particular features and he sets out in paragraphs 42 continuing all of the findings that that site inspection made in relation to all of the relevant amenities and then he says at paragraph 26:

PN3248

Because LA represents Qantas's second largest accommodating port, in January 2005 a second site inspection was conducted attended by commercial procurement, Mr Menzies himself, in conjunction with both flight operations, Captain Coombs and cabin crew manager, and Mark Hassall, the general manager.

PN3249

It is not correct as Mr McInerney submits that only the chief pilot's view was relied upon. Mr Menzies was part of that. Captain Coombs was there because the technical crew are also staying at the hotel so he was there in a representative capacity of pilots and Mr Hassall, the general manager was there representing or focusing on the interests of cabin crew. And, as he says in paragraph 63:

PN3250

The intent of that evaluation was to allow crew and customer service management to experience the hotel and to ask questions and do a walk around.

PN3251

He says importantly at paragraph 64:

PN3252

At the time of the second inspection they were aware of particular concerns which had been raised by crew, in particular the issue of noise and that each of the three people carrying out the inspection were located in different parts of the hotel, all in rooms overlooking the main freeway.

PN3253

None of that three person inspection experienced any disturbance to sleep through noise and Mr Menzies gives as his own experience that during his time with Qantas he stayed in many of the hotels which accommodate crew and in his view the Bonaventure was more than acceptable. He then details the recommendation that procurement then made to cabin crew and flight operations management that the Western Bonaventure was the most appropriate accommodation option and that recommendation was then accepted. It is important to note that pilots stay at the Bonaventure, that APA, the union which represents pilots, undertook an inspection of the Western Bonaventure in response to an invitation from Qantas. That invitation was also extended to the FAAA but they did not take it up because they had some concerns about the inspection process. But APA has inspected the hotel and flight crew are content to stay at the Bonaventure.

PN3254

The relevance of the lack of concerns and issues by flight crew has particular significance in relation to the complaint about noise because flight crew, unlike cabin crew, are subject to CASA regulations which insure that when they get behind the cockpit they are fit and able to fly and they have quite important requirements on them that they get adequate rest and that they have the minimum break before they fly and no issue has been raised by pilots that the Bonaventure in any way compromises the adequacy of rest which pilots need before they continue on their flying patterns. So, in relation to noise, it is, in other submission, significant that there is an absence of concerns or complaints concerning this hotel raised by or on behalf of any of the pilot crew who stay at the hotel.

PN3255

Mr Menzies deals finally with some misrepresentations or incorrect allegations which had been around in relation to the use by other airlines of the Bonaventure and in response to a particular allegation that the FAAA had made that Air New Zealand crew were withdrawn from the Bonaventure he is able to confirm that Air New Zealand crew had never stayed at the Bonaventure and that was also a position I think Mr Agar addressed in his evidence.

PN3256

So, Mr Menzies's evidence, in our submission, is very important evidence which should be given considerable weight because it comes from somebody whose job it is to assess and evaluate accommodation for crew having regard specifically to the requirements in the EBA. That is Mr Menzies's job and he sets out in quite some detail how he approached that job in relation to the assessment of the LA hotel.

PN3257

The second witness which was called on behalf of Qantas was Mr Mackay.
Mr Mackay is the security manager international operations. Again, Mr Mackay has as part of his job and core part of his job, the requirement to assess and have responsibility for the security of Qantas's air operations outside Australia and he says - QF3 is his statement:

PN3258

This includes the airports used by the Qantas group, crew hotels and crew transportation.

PN3259

Mr Mackay is clearly a expert security specialist and his evidence should be given the weight of an expert witness. He details his experience and his background in assessing matters to do with security. He goes into some considerable detail to explain that Qantas Aviation security risk assessment process, QASRAP, and how that process is applied in relation to the assessment of new premises. He then details his particular involvement in the evaluation of security issues concern the Bonaventure include a site inspection which he undertook in November at which time he met with the general manager of the hotel and the director of security of the hotel.

PN3260

He sets out in paragraph 24 all of the matters which he takes into account in assessing or evaluation security risk and he prepared a report following that and although he explained both in his statement and in his cross-examination that it is not Qantas security policy to make public the reports. He is able to give and does give any statement, direct evidence about the contents of his report relevant to the issues in these proceedings. And he deals for security controls, that he found the hotel had, including that the hotel has been found to by the US Secret Service. And in his cross-examination he detailed the number of occasions where congressmen and indeed the president have stayed at the Bonaventure.

PN3261

In paragraph 6 he talks - gives evidence about the number of security guards at the Hotel, employees and their job. That evidence is in stark contrast to the evidence of many of the flight attendants who in their statements express opinions about the inadequacy of the security arrangements in the hotel. But when he was asked, "Did they know what the security workforce was in the hotel?" He said, "No". Then:

PN3262

Had they taken any steps to find out what the security resources?---No.

PN3263

Did they know anything about whether the security guards were uniformed or non-uniformed?---No.

PN3264

Had they taken any steps to inform themselves as to the security measures at the hotel?---No

PN3265

And I'll take the Commission to the transcript references but the commission may recall I asked most of the witnesses questions about their own personal knowledge of the facts. What were the security resources at the hotel? None of them knew and none of them had taken any steps to find out. But all of them were prepared to give opinion evidence about the standard of security in the hotel. Mr Mackay is the security expert. Mr Mackay deals with the facts. He informed himself as to the security resources in the hotel, what the security procedures were, what the measures were, what the access arrangements were, what the video camera control room facilities were, and it was those facts which he used as a basis for his own conclusions and findings; and that approach is in stark contrast to the opinions expressed by flight attendants in relation to this very important issue of the security.

PN3266

Mr Mackay also gave some evidence about the other measures that Qantas security took to try and insure that crew or any other Qantas personnel travelling overseas were able to take reasonable measures themselves to insure their own security and safety and he referred to the port briefs and also the crew operation manual which contain some suggestions and recommendations. Mr Mackay's evidence is important in relation to this issue of security because he explains that the approach that Qantas take is to identify risk so that risk can be managed and the emphasis in assessing whether a facility such as a hotel has adequate security standards all turns on the actual risk assessment process. It's a matter of identifying risk and then putting in place measures to manage that risk.

PN3267

It's to a question of trying to find somewhere which meets some absolute test of safe or not safe. It's not possible to do that. You can never say that a hotel or a location or a particular environment is safe or not safe. What you do from a professional perspective, as Mr Mackay says, is to identify all of the risks, assess those risks, and then put in place any appropriate measures to manage that risk. And he goes into some detail about the steps that were taken in relation to the Bonaventure, not just in relation to the hotel itself but to the whole surrounding environment to identify the risk, to assess the risks and to manage the risks. And Mr Mackay's evidence was that the key risks identified relevant to the choice about the Bonaventure were in fact the risk of natural disaster through earthquake and particularly in relation to Bonaventure risks that might arise in times when the hotel was used by VIP visitors.

PN3268

The overall risk assessment for the Bonaventure from Qantas security was low and Mr Mackay's evidence was that it was not considered necessary for any additional measures or steps to be put in place to manage the risks identified other than to have a management plan in the event of earthquake and to ask the hotel for further information as to how the risk would be managed in the event of VIP visits. But he did not consider that it was necessary for any particular measures to be taken in relation to any other risk which was assessed as being relevant to the Bonaventure and he deals with that issue through to paragraphs 41 of his statement.

PN3269

Mr Mackay goes on to say though that Qantas security doesn't have a closed mind. A risk assessment is not an absolute thing. It's something that is constantly kept under review and because of the high level of ICANs and the ongoing concerns he returned to Bonaventure in May 2005 to undertake an inspection of the security arrangements and to consider generally the overall security of the hotel and its surrounding areas. In that second visit, and this is in paragraph 49, he met again with the general manager and the director of security and he also met with the commanding officer of the LAPD, the lead officer for the central area of the LAPD and the director of operations for the downtown business district group, the group that operate the purple shirts group.

PN3270

So, again, facts - Mr Mackay met with these people and ascertained the facts. He did not simply base it on his own opinions or assessments. He further studied the security arrangements in place within the hotel and then conducted a walk around as well and again he prepared a report; again - although the report was not released he summarised his key findings through from - paragraph 54 sets out his findings based on those first-hand discussions with the relevant people, people who are in a position to know the facts. He says first of all that that second report - his findings and observations were entirely consistent with the conclusions reached in the earlier risk assessment. He comments specifically on the issue of the vagrant population, the homeless population and he acknowledges that in the downtown area, as in many other large urban environments there are people who are homeless, there are people who engage in begging or panhandling.

PN3271

He records in subparagraph (d) of paragraph 54 that according to the LAPD the vast majority of vagrants who exist in downtown LA do not represent a threat to anybody and the small number who do are well-known to police. These more threatening vagrants are known as aggressive panhandlers and aggressive panhandling is a criminal offence in California. And he talks about some of the measures that are in place through social welfare schemes and intensive policing to manage this issue. He records the view of the LAPD that it is quite rare for a vagrant to assault a member of the public. The vast majority of violence is vagrant upon vagrant. Mr Mackay was cross-examined in some detail by Mr McInerney about that observation and he explained in more detail why the LAPD is of the view that violence by vagrants on non-vagrants is relatively rare and I'll give the paragraph references to that.

PN3272

Mr Mackay then goes to talk about the actual crime levels in LA. He says they are trending downwards and consistent with this trend crime levels in downtown LA, particularly in the areas around the hotel, are also trending downwards. Crime in LA, according to the LAPD, is now at similar levels to what it was in 1973. Downtown LA is in the advanced stages of being gentrified and there are currently 106 residential and commercial developments in progress which, according to the LAPD and the BDIB, will serve to accelerate the transformation of downtown LA. Many parts of downtown LA are considered desirable areas in which to live and work. The financial district of downtown LA in which the hotel is located is, according to the LAPD, one of the safest areas in downtown LA.

PN3273

He then refers to a letter which the FAAA sent to the Western Bonaventure. This was a letter sent on 26 May. It's attachment GM5 to Mr Mackay's statement, which is a letter that - I'm sorry, the letter is from the Bonaventure, GM5, to
Mr Mitchitoff responding to a letter that the FAAA had sent regarding security measures. In this letter the general manager of the hotel sets out in some detail the steps that the hotel itself had taken in relation to security.

PN3274

Now, it doesn't appear as though anybody from the FAAA - none of the witnesses have given any weight to that or even paid the slightest attention to that view.
Ms Dunn, who is the member of the accommodation committee who was charged with the task of inspecting the hotel, who carried out an inspection and concluded that the hotel was unsafe and the area was unsafe, Ms Dunn was not aware of this letter apparently. And this letter was received or sent only days before Ms Dunn carried out her inspection. She was unaware, she said, that Mr Mitchitoff had even written to the hotel.

PN3275

So there is a pattern in the FAAA's evidence of people not in fact actually wanting to know what the facts are in relation to security. They formed a view very early on and they have been unshaken from that view in the face of quite compelling to the contrary and in the face of all of the assurances and all of the expert communications and information from the hotel itself and form Qantas through Mr Mackay and from bodies such as the LAPD and the BDIB through Mr Mackay and through the hotel.

PN3276

The Commission is asked instead to prefer the personal experiences and opinions of the cabin crew and in an area such as security and safety the Commission can really only be properly guided by the evidence of those people who have some particular expertise and knowledge about these matters and those people, in other words, are Mr Mackay and the bodies that Mr Mackay spoke to to inform himself before forming his own view.

PN3277

Then Mr Mackay confirms that the opinions expressed by the hotel by the general manager in fact concurred with his own observations carried out during his two inspections and he also refers and attaches - and this is another example of information being provided which should allay concerns which is just ignored, he attaches a letter which Mr Hassall sent to Mr Mitchitoff from the FAAA on
7 June 2005. It's attachment GM6, which goes into some considerable detail to respond to and answer the concerns about safety and security in the district, safety and security in the hotel and the noise issues. And that is a quite detailed response which appears to have just been rejected or just been put to one side and instead the opinions of the flight attendants preferred.

PN3278

The third witness which Qantas called was Ms Taranto, and Ms Taranto is the cabin crew manager, Sydney long haul base. Ms Taranto has responsibility for any problems and issues which crew have, the crew within her responsibility. In that capacity she became involved in the issue of the Bonaventure because it was obviously an issue which generated some considerable concerns and issues by the crew. Ms Taranto has been to the Western Bonaventure on four occasions. She stayed in the hotel on three of those occasions and on two of those occasions she was there specifically with a view to both assisting crew in any concerns that they had and also to experience the hotel and the surrounding district from the perspective of somebody who was perhaps more typical of the profile of a cabin crew who might have concerns about the hotel being young and female.

PN3279

Ms Taranto provides some relevant factual material which the Commission, in our submission, should give some weight to in considering the overall evidence. Attachment ST1 is first of all some data that Ms Taranto has extracted about the demographics of the crew, the profile of the crew that go to LA and relevantly
Ms Taranto's evidence is she has assessed what the demographics are in the bid period immediately before crew were all located at the Bonaventure and then for bid periods later in the most recent bid period and she observed from that that there is no significant change in the profile of crew who stay in Bonaventure relevantly either in relation to the gender split or the age split, or the seniority.

PN3280

And the relevance of that is that because LA trips are generally regarded as desirable they're ones that are bid for and competed for and more senior crew generally go to LA and that is reflected in the - if the witnesses who have given evidence are typical of the crew member that goes to LA they are all very senior experienced crew with considerable experience both as crew and staying in LA. Ms Taranto says in paragraphs 10 through to 13 - she comments on the relevance of ST1 and she should:

PN3281

If crew had serious concerns relating to their safety and wellbeing as depicted by the volume and nature of the ICANs -

PN3282

In her view you would have seen some changes either in the seniority or at least in a ship of less females travelling to Bonaventure. In attachment ST1 Ms Taranto has also set out the comparable comparison for Singapore just to give a comparison to show that in fact there's probably been more deviation or movement in the statistics in Singapore, in LA and she notes that the reason why she's put Singapore there is to offer a comparison of a similar sized port which is also popular with crew.

PN3283

Ms Taranto then has as ST2 a summary of the ICANs, the 260 ICANs which she reviewed and assessed and she separated them into a number of headings being relevant to the subject matter of the ICAN and those headings are set out in paragraph 16. Attachment ST3 is an analysis of the ICANs and in our submission it is relevant to and necessary indeed for the Commission to have regard to the volume of ICANs in the context which is explained or portrayed in attachment ST3. In ST3 Ms Taranto identifies first of all the number of ICANs is issues raised in the ICANs and she charges the number of issues raised through from March of 2005 through to September.

PN3284

ST3 demonstrates that there has been a significant drop off in the number of ICANs. They peaked in May 2005 and just to the right of that third column which represents the number in May, the black line is the date at which crew - all crew in fact were located to the Bonaventure. So the highest number of ICANs were actually reported at a time when not all of the crew were staying in the Bonaventure. On the left-hand side of the black line, during that period when those ICANs were logged, 5,202 room nights were used by Qantas crew and that's when you get the most number, particularly in April.

PN3285

Since 1 June when all crew have been staying at the Bonaventure the number of room nights has increased substantially. There's now 25,731 room nights during that 4-month period but the number of ICANs has dropped dramatically and is decreasing so in the overall context of the number of room nights and the number of crew who have stayed at the Bonaventure the number of ICANs which have been generated or which have been reported raising issues relevant to these considerations is, in our submission, relatively insignificant and the very number of ICANs, insignificant as they are in the overall context, also need to be viewed in the context of the industrial dispute which was underway at the time at which the ICANs were being logged.

PN3286

I'll come in a moment to the significance which we say the Commission should give to the open invitation for requests from the FAAA to its members to report incidents by way of ICAN and the advertisement or call to members to do so, so that it could be the basis of or create evidence to be used in proceedings directed at overturning the decision by Qantas to stay at the Bonaventure. In our submission, those surrounding circumstances go a long way towards explaining the existence of most if not all of the ICANs around this issue.

PN3287

Ms Taranto then makes her own observations in relation to that analysis report in ST3. She says at paragraph 21:

PN3288

The ICAN levels were at their highest in the months after crew began moving to the Bonaventure but while many were still staying in Pasadena when compared with the crew room nights accommodated per night at the Bonaventure versus the amount of reporting -

PN3289

The 260 is not, in her opinion, a large number and in cross-examination I think she said that there was approximately crew during this period, individual crew members as opposed to room nights that would have stayed at the Bonaventure, over 10,000 separate visits. So the room nights need to be broken down into the number of separate visits and then the number of crew and that the volume of ICANs has been reducing significantly.

PN3290

In relation to the question of the relevance of the FAAA's communication to its members and the ICANs, Ms Taranto observed at paragraph 22 that:

PN3291

The reporting of ICANs appears to be at their highest when the number of communication events from the FAAA is at its peak.

PN3292

And in particular she refers to the first relevant communication which is attached ST4. First of all, this is a Qantas announcement in its Cabin Crew News on 17 March that there will be a change in overflow accommodation and that some crew will be going to the Western Bonaventure. The next day - and this is ST5 - there is a FAAA international newsletter put out dated 18 March headed, "Attention all Qantas Long Haul Flight Attendants, Accommodation Allowance Newsletter", and the first item:

PN3293

Los Angeles: as many of you are aware Qantas wants all crew to move from our "safe" environment at Pasadena to downtown LA at the Western Bonaventure Hotel. The FAAA and Qantas are in dispute over the hotel inspection process and until such time as this has been rectified this hotel will remain a non-approved property.

PN3294

So it's very clear from 18 March that the FAAA was going out to its members and first of all saying, we have not approved this hotel. We're in dispute with Qantas about it over the inspection process and, more importantly, Qantas wants all of our crew to move from our safe environment. Now, it's implicit in that that it is the view of the FAAA that the move is to an environment which is not safe or at best which is less safe.

PN3295

Crew are being alerted to the fact on 18 March that it is the view of the FAAA that their safety is somehow going to be compromised or diminished by Qantas's decision to move to downtown LA. That, in our submission, may well have been a factor which at least coloured or influenced the views of crew or even created concerns or raised existing concerns in relation to issues of safety. That newsletter went out before a single ICAN was filed with Qantas. The Commission may recall the cross-examination of Mr Agar where he was cross-examined in relation to his statement where he said, "As a result of a large number of ICANs the FAAA responded" - in paragraph 14 of Mr Agar's statement he said:

PN3296

In or around March Qantas began relocating some crew.

PN3297

Then in paragraph 15:

PN3298

Officials of the FAAA began receiving alarming reports via crew feedback forms and emails -

PN3299

Et cetera. And he was cross-examined about that and he conceded that no - in terms of the attachment to his statement which is the summary of all of the ICANs which the FAAA had, which he relied on very much as the evidence of all of these alarming reports and concerns, he was only able to identify two which could even conceivably have been generated before the 18 March date but also considered that he couldn't say with any certainty that either of those two were generated prior to the FAAA newsletter because of the length of the patterns that the flight attendants fly and because the ICANs only disclose the date of which the pattern commenced rather than the date of the incident. So even an ICAN dated 19 March is not evidence in itself that the incident occurred on 19 March. It's only evidence of the fact that the person's pattern of duty commenced on 19 March.

PN3300

So the fundamental premise which the FAAA has used to justify all of its subsequent actions including these proceedings, which is that it is responding to spontaneous genuine concern by flight attendants in relation to security and safety concerns about the Bonaventure, has to be treated with significant caution and considerable salt in circumstances where it was the FAAA which first went out to its members and raised the issue of security or the comparative security of the Bonaventure as opposed to the Pasadena hotels. And Ms Taranto demonstrates or refers to that in the statement.

PN3301

She says at paragraph 24 that within 3 days of the 18 March newsletter she received 25 ICANs. In our submission, the Commission should at least consider it reasonably likely that those ICANs were in direct response to the invitation in effect from the FAAA to lodge ICANs, the purpose of which was to persuade Qantas to change the hotel, not because it was important that Qantas were aware of security issues but so that you could influence the decision and possibly reverse the decision. That has been what most of the ICANs have been directed towards, trying to have the decision changed rather than trying to improve security or trying to insure that appropriate measures were put in place to manage risks.

PN3302

The improvement of security, the management of the risk, the increased information to the hotel, to Qantas, to the LAPD about the risks, is spectacularly absent from any of the ICANs. Time and time again the witnesses gave evidence about things that happened, about ICANs that they completed but that they didn't report it to the hotel, but that they didn't report it to the LAPD, but that they failed to follow up with hotel security, but they didn't report it to Qantas other than through the ICAN.

PN3303

So it's not the case that you could say that right from the outset either the FAAA or its members had any real concern or demonstrated any real concern to actually improve the standard of security for them at the Bonaventure or to insure that better measures were put in place or that risks were more accurately identified and assessed. They had no interest in that. It was all about trying to have the decision reversed and that is quite in contrast to the approach that Mr Mackay details about how security matters ought to be dealt with.

PN3304

A number of the witnesses in fact say, "It's not my responsibility to have to worry about the security. Qantas ought to take responsibility for this". So even the proposition or suggestion that they themselves have some responsibility and have some control over their own personal safety and security when they're on slip is rejected by some of the witnesses - "I shouldn't have to do that, that's for Qantas to do and the solution is to put me in a nicer place. Put me back at Pasadena". And that really is a bit head in the sand.

PN3305

When one looks at the overall context in which this decision had to be made, the significant logistic exercise, the fact that only two hotels even got down to the shortlist and the not irrelevant cost savings that flow to Qantas from being able to locate all crew in the one hotel in a premise nearer to the airport which can accommodate everybody and remove the logistical difficulties that get experienced with Pasadena.

PN3306

Ms Taranto then relevantly and consistent with the submission that I have just put about the disinterest on the part of many crew to themselves taking responsibility or assist in improving the security, Ms Taranto details the steps that were taken to provide crew communications to provide information to crew in LA about the facilities, about the services available, about support and assistance that they could get. She says that those communication sessions were extremely poorly attended.

PN3307

In paragraph 38 she said:

PN3308

An average of only six crew attended per communication session. At one session there was only one person and at another session there was a no-show altogether.

PN3309

She compares that level of attendance with other presentations which had gone on in the hotel business presentations run by the executive general manager September around about the same time where 65 crew attended the sessions. So the lack of attendance at the sessions in relation to assisting people to settle in, to feel comfortable at the Bonaventure, to enjoy the surrounding area, can only be consistent with people either not wanting to be assisted or not needing to be assisted.

PN3310

Either way crew did not take up the significant offer of assistance and the resources that were put in place to assist them to assimilate and settle into the Bonaventure. But Ms Taranto goes on to say that even though Qantas stopped doing those sessions she arranged for the hotel to continue to conduct those sessions going forward.

PN3311

Ms Taranto then refers to subsequent newsletter which were being - continued to be published by the FAAA during this period, all of which continued to exhort crew to keep sending in the ICANs. The attachment ST14, which as an international crew letter of 14 July, is one which in our submission is clearly highly prejudicial to any possibility of crew forming a balanced and objective view about the adequacy or suitability of the Bonaventure particularly from a security and safety perspective.

PN3312

First of all, it says that the FAAA is preparing for its hearing in the Commission and it's been a painstaking, complex and lengthy process. It tells crew to continue to exercise extreme care and caution in the downtown area until the matter has been resolved. It says:

PN3313

We are confident that when all the facts are known and assessed a solution will be found.

PN3314

Then it goes on to talk about the content of the ICANs, the 200 copies of the ICANs and it says:

PN3315

Some of the more serious reports that have been submitted to crew include -

PN3316

It then goes on to, in our submission, completely overstate if not misrepresent the position at least as evidenced - at least in relation to the evidence that's been brought in the proceedings:

PN3317

Several crew have been physically assaulted. Several female crew have been threatened with serious sexual assault, subjected to vicious sexual harassment both within the hotel itself and near to the hotel.

PN3318

Now, on the evidence in the proceedings the only instance that that could possibly relate to is Ms Cecchin in the hotel and Ms Young and the other two flight attendants on the bus coming back from the Grove. But to say that that constitutes serious sexual assault and vicious sexual harassment is, in our submission, going a little bit over the top:

PN3319

Several crew have been threatened with knives and guns near the hotel.

PN3320

Now, presumably that is a reference to Mr Morrison who had a man pull out a knife while he was walking towards him. Mr Morrison and someone else continued to walk towards the man and went around him. No report, no follow up - that is crew members being threatened with knives. There was no direct evidence of anybody being threatened with a gun near the hotel:

PN3321

Several crew have been harassed within the hotel.

PN3322

Presumably that is a reference to a beggar walking into a coffee shop and asking for money of Mr Green:

PN3323

Several crew have been witness to murder scenes near to the hotel.

PN3324

We had no evidence of that:

PN3325

Numerous crew have reported witnessing drug dealings, drug taking and other criminal behaviour.

PN3326

Now, we had Mr Green and Mr Morrison who hired a car, drove a car out to an area, observed alleged dealing from 20 metres away, from the window of the car and then went back the next day, felt extremely nervous and extremely distressed about this observation that they'd seen 20 metres away from the car window but drove back the next day with some other crew members to see if it would all happen again. That's the extent of crew witnessing "drug dealing, drug taking and other criminal behaviour":

PN3327

And then:

PN3328

Numerous crew members have been subjected to abuse, harassment, intimidating behaviour ... gang members both within the hotel itself and near to the hotel.

PN3329

Again, the only evidence of that is the evidence given in the statements which is not capable of being substantiated in any way because in every case the crew member made a decision not to report the incident, to either the police or the hotel security staff. So, these incidents are completely incapable of being substantiated or corroborated in any way so they are just a series of opinions expressed by people.

PN3330

But this is what crew are told goes on at the Bonaventure. This is the newsletter that they get. Then:

PN3331

Hotel staff have been advising crew not to venture outside of the hotel alone especially after dark.

PN3332

Notwithstanding the fact that Qantas has told the FAAA on several occasions that is not the position of the hotel, and notwithstanding the fact that the hotel manager has made it clear to the FAAA that that is not the position of the hotel, there has never been any attempt to communicate to cabin crew that that is not the position of the hotel. They continue instead to report that hotel staff say to you, don't go out of the hotel alone.

PN3333

Then on the next page:

PN3334

Other airlines including Air New Zealand have removed flight attendants from the Western Bonaventure.

PN3335

This is the statement which is made to crew on 14 July at a time when Mr Agar knew that that was not correct. Mr Agar's statement gave evidence about the discussions that he had had with Air New Zealand some months earlier. He knew that it was not correct that Air New Zealand had removed its crew from the Bonaventure but it finds its way into a newsletter, high prejudicial, intended to plant in the minds of flight attendants the fact that other airlines are not game to use the Bonaventure.

PN3336

There is something wrong with Qantas because Air New Zealand and United Airlines, they have taken their flight attendants away from that hotel. Highly prejudicial, not substantiated by the facts and either careless of the truth or a deliberate misrepresentation of the truth. Either way hard to understand given the seriousness of the issues and given the fact that proceedings were well and truly underway at the time this newsletter was written.

PN3337

And then it goes on again to set out all the reports that have been received. It says it’s the FAAA’s position that Qantas is in breach of the EBA. Qantas has failed in these respects, and makes it very clear that:

PN3338

Unfortunately, the company does not consider that crews should be relocated to other hotels and we’re going into the Commission.

PN3339

So the approach that the FAAA took through all of this dispute was not a constructive one. It was not a Let’s work with you to really try and ensure that we can satisfy our members that the work of the experts, in assessing the security risk, is valid, is viable. We disagree. We don’t want to stay at the Bonaventure and we disagree with the expert evidence of Mr Mackay, with the views of the hotel, with the views of the LAPD, with the assessment and evaluation process that procurement has carried out. We prefer the views of our members, which of course - and this, again, is not a criticism - are self-interested views because they would perhaps prefer not to stay at the Bonaventure.

PN3340

But that’s not a valid approach to take to something as important as assessing whether or not the requirements of the EBA have been met, particularly in relation to something as important as the standard of security at the hotel. So that’s the evidence that Qantas called in relation to support its view that the requirements of the EBA had been met. In addition to the evidence that’s in the statements, each of the Qantas witnesses were cross-examined about their evidence in some detail and particularly in relation to Mr Mackay. He was able to expand significantly on some of the reasoning and explanation for the views that he expressed, and I won’t take the Commission in detail to that part.

PN3341

Mr Mackay confirmed again why he thought the overall risk assessment was low, that the risk assessment did not warrant the introduction of any specific measures. He was asked what that actually meant, at paragraph 1902, and he explained that the only measures that were relevant to - the only risks, I’m sorry, that were relevant to any specific measures were the risk of earthquake and VIP visits. He confirmed that his whole risk assessment process had taken into account the location of the hotel and the surrounding environment, not just the premises itself, and importantly, he took into account the risks arising from crew using the hotel through normal use in slip time. That’s at paragraph 1925.

PN3342

He said the overall risk of crime threats was low and he explains why he came to that view, at paragraph 1975 onwards. He says risks just - you can’t remove risks, but you need to properly assess them. He expanded on his explanation of the hotel security control measures, at paragraph 2069, and he also expanded in some detail about the relevance of the crime statistics for the downtown area and expressed the view that based on his discussions with the LAPD, those crime statistics compared very well to other areas of LA. That’s at paragraph 2111-2119. He also gave some further explanation for the role of the purple shirts. They’re not just a private security force. He said they also have a social welfare role. They’re actually there to increase people’s feeling of safety and security.

PN3343

It’s not the case that their presence in itself is evidence of a threat to security. Their presence is actually a reduction or a measure to reduce risk, and they also have a business development role as well. They’re not just there as some sort of private security force. He also expresses the view by way of comparison that the number of ICANs that relate to vagrant crime is surprising, given that in Mumbai, where there are over a million people homeless on the streets, Qantas gets no ICANs from crews staying in Mumbai, where there are significantly more beggars on the streets.

PN3344

He says if there is a sensitivity or a concern about people coming up and begging for money, it is surprising that that is not reflected in some level of reporting from crew in other, poorer cities where there are significantly greater beggars and Mr Mackay refers specifically to the position in Mumbai and the immediate surrounding area of the crew hotel in Mumbai. That’s at paragraph 2173. Mr Mackay was asked some questions particularly in relation to whether he felt that crew were making up the incidents that they refer to in the ICANs, and he says, no, he doesn’t believe that they’re making it up, but he’s able to say from his perspective, as someone with some particular expertise in risk assessment and security, that what he thinks in his view the ICANs are reporting is not danger or a threat to security as such, but it’s an apprehension of fear. It’s apprehension or fear.

PN3345

People are recalling and explaining in the ICANs how they feel about things, rather than specific things that have occurred to them. He says that at paragraph 2231. He said:

PN3346

My interest was to develop an appreciation of totality. I was interested in being absolutely sure that our initial risk assessment was correct.

PN3347

He’s asked a question at 2233:

PN3348

So the fact that there were so many people that had expressed their fear, you didn’t give that much weight?---No, I gave it weight, but there are, with respect, explanations for why so many people can be fearful. Fear can be passed through a number of means. I was interested in fact. I was interested in what these ICANs, taken in totality, were saying about downtown LA, particularly the area around the hotel.

PN3349

He says at 2234:

PN3350

My approach to dealing with them was to go back and explore the issue of vagrancy and aggressive vagrancy directly with LAPD, to get to the core of the issue. The core issue is vagrancy and the impact that it was allegedly having upon the security of crew.

PN3351

And he goes back and discusses specifically with the LAPD those issues. In re-examination, I asked him just to expand on that, his evidence about the perceptions of fear as opposed to the actual risk. At 2401 I said:

PN3352

Do you have any view yourself about why so many crew members who stay at the Bonaventure are communicating feelings of fear about the location of the hotel?

PN3353

Mr Mackay says:

PN3354

A couple of possible reasons. One is downtown LA has had a poor reputation in the past and it’s perhaps perpetuated in the media and unfairly perpetuated in the media. Possibly as a result of that, there’s a general view that it’s not an appropriate area to be. I also think that one flight attendant is communicating to another about their general feeling of unease in this area and that’s perhaps causing flight attendants, even before they go there, to have a general sense of foreboding, and any event that is seen, anything that is seen during their slip is interpreted in the context of this general foreboding. So everything is said as being an example of a possible threat, although vagrants in themselves, even panhandling vagrants, don’t constitute a threat to one’s security. They can be confronting, but they don’t necessarily constitute a threat.

PN3355

In our submission, the Commission should give some weight to Mr Mackay’s assessment about perhaps why so many ICANs were generated and why there is this theme about people feeling extreme danger or apprehension, which is not consistent with or not borne out by the actions which they actually took by way of dealing with their fear, and in particular, the lack of responsibility that the flight attendants then took for their subsequent security or safety, or a lack of action that they took in terms of reporting these incidents to appropriate authorities so that they could be verified or substantiated or, importantly, so that some further action could be taken.

PN3356

Can I just turn briefly now to put it in contrast, in effect, to the evidence that has been brought, the evidence of the cabin crew. I won’t take the Commission in detail obviously to the transcript, but only to say by way of a general comment that much of the evidence of the flight attendants is unsubstantiated. It’s uncorroborated and it’s untested material. In many cases it’s hearsay material; in many cases it’s “Somebody told me that this is what happened to them” or evidence of that kind. The Commission should take the view that it is at least, if not solicited evidence, it is evidence that was influenced by a desire to assist the FAAA in its efforts to have the decision to relocate crew to the Bonaventure overturned.

PN3357

So in that sense, it is self-serving evidence which is designed to assist an outcome rather than to bring before the Commission facts which can be relevantly taken into account in the Commission’s assessment and it is, of necessity, very subjective evidence. When one is dealing with issues such as security or safety, it is very difficult to deal with subjective evidence. Mr Mackay says security is a very personal thing. What one person is safe with, another person will not be, and it doesn’t at the end of the day assist the Commission to have 10 people or 20 people of 50 people say that, I feel unsafe or I feel anxious or I don’t feel secure. The Commission can only deal with whether there’s a reasonable basis in fact for that feeling.

PN3358

In fact, the problem of relying on subjective evidence is demonstrated in part by the witnesses themselves, although Mr Kenny gave evidence about the knife that was pulled on him, but the ICAN that Mr Kenny filed actually says, “I think the Bonaventure’s a very fine hotel. It’s a bit old, but I’m perfectly happy with it, except for this issue about the location”. So Mr Kenny’s view is the hotel’s fine, but the area is dangerous. Other people say very emphatically the hotel is not fine, I can’t sleep. There’s no noise, there’s no facilities, so what is the Commission to do? It’s not a matter of putting on the scale, 10 people say this, therefore it must be right.

PN3359

The Commission has to look at the underlying facts and if the Commission does that, in our submission the Commission will see that there’s no basis for coming to the view other than that the hotel is first class accommodation. Just briefly, in relation to the particular incidents which I relied upon as being either representative or indicative of the threats to security and safety, not one of these incidents were reported in a way which enabled them to be substantiated or confirmed. Mr Lapska said in relation to his incident he didn’t think it was worth reporting, at paragraph 12, to the police. Mr Barnett, who had the incident in relation to the vagrant come into the coffee shop, said, “I couldn’t see any security people around, but we told the waitress”.

PN3360

When he was asked:

PN3361

Did you go and report this to the hotel security?---No.

PN3362

Did you follow up with security?---No, I thought it was sufficient to tell the waitress about it.

PN3363

Ms Cecchin was followed when she went out of the hotel. At paragraph 13, she didn’t think it was necessary to tell the police or the hotel security. In relation to the assault, or alleged assault that happened to her in the foyer on level 5, there is conflicting evidence about whether or not Ms Cecchin attempted to report that incident. Ms Taranto took steps to follow up with the hotel security why there had been no action in relation to that incident and the reports of the hotel security were that the person would not give their name and did not come down to follow up on it. Ms Cecchin is adamant that she did give her name, but she agreed that, at least in her ICAN which she filled in, the ICAN itself does not say that she provided the name.

PN3364

So whether or not Ms Cecchin actually took any steps to follow up is at least an open question, but the ICAN doesn’t support her own version of events now. Importantly, she agreed in cross-examination that she didn’t take any subsequent step after the incident herself to follow up with security. She was content to sit back and say the hotel didn’t follow up. She didn’t herself take any steps to ensure that something was done about the incident. On the evidence at least of the hotel security log the people involved were juveniles who were spoken to and removed from the hotel, and there’s no evidence that the exchange, as Ms Cecchin reports, in fact occurred.

PN3365

Mr Green; again, Mr Green did not feel the need to report it, didn’t think there was any purpose in going to either the police or the hotel. Mr Green described himself as some expert witness in issues of security because he’d been a former policeman. He expresses an opinion in his statement that the security measures at the hotel are poor, but in cross-examination, agreed that he had no knowledge of what those security measures were. He had not taken any steps to find out what the security staff was, what the measures were, what the processes were, but he expresses an opinion that the security is poor.

PN3366

Mr Morrison; there’s no reference in his statement to any steps being taken to report the incident. Mr Morrison and Mr Green both give evidence about the same incident in relation to observing the drug dealing, but there are some significant conflicts in their version of events. Mr Green says, for example, that when they were in the car - sorry, when they got out of the car, he said:

PN3367

We pulled up at a shop about three blocks from the Bonaventure to purchase some drinks. I was fearful from the intensity of the stares that we received. There were a number of people who were yelling at us, “What the fuck are you doing here?” It was clear that we didn’t fit in and were not welcome. In fact, it was dangerous for us to be there. Shortly thereafter, whilst driving away, I witnessed a drug deal. I felt extremely fearful as a result of this incident and felt that we needed to get out of the area as soon as possible. I did not contact the police about these matters as we managed to escape without injury.

PN3368

Mr Morrison gives a very different version of events. Mr Morrison says:

PN3369

In the early evening, at around 6 pm, I parked a hire car 50 metres north. We alighted from the vehicle and walked south towards the supermarket. As we walked towards the supermarket, we were accosted by a woman who asked for money. I ignored her, she became agitated and began swearing. We walked - waited for the traffic lights. On the opposite corners were two groups of men. They appeared to be selling drugs. We crossed the road. They watched our movements closely. We returned, we were abused by the same woman. We went back in the car. We passed the park. There were people yelling at passing traffic, but they did not take any notice of us.

PN3370

So, the particular incident that Mr Green says made him absolutely fearful, which he had to - was dangerous and he had to escape from is not mentioned in Mr Morrison’s statement and when I cross-examined Mr Morrison about whether there were people yelling at them or anything else he said, “No, no one else. Just the woman”. So there are a few - even in relation to incidents that are relied upon, there are some inconsistencies. Mr Kenny, the hunting knife, felt extremely, extremely nervous and anxious, but didn’t report the incident, and walked back the same direction, walked back the same way, 20 minutes after he’d seen the man there.

PN3371

He describes the weapon, somewhat pejoratively, as a hunting knife, but says it was a 5 centimetre blade. A 5 centimetre blade is really more like a fruit knife than a hunting knife. So again, it’s people conveying how they felt, feelings rather than facts. Ms Young, who was subjected to the serious sexual assault on the bus, Ms Young’s evidence in cross-examination was that she’s been back to The Grove a number of times. She’s done it by bus and occasionally by herself on the bus. So, Ms Grove did not, at least, see any need to take any steps to modify her behaviour in the light of the incident that happened to her.

PN3372

So the Commission needs to obviously weigh up the evidence. In our submission there is factual evidence and there is opinion evidence. Most of the evidence relied upon by the FAA falls into that category. The Commission should satisfy as to the facts. In particular when assessing matters such as the suitability of the restaurant facilities the Commission should be influenced by the facts, as evidence in QF2 which is the email about the actual opening and closing times, rather than the opinions and views of people that they couldn't get anything to eat. The fact of the matter is that the hotel has extensive food outlets and restaurant facilities and the brochure attached to Mr Menzies statement sets all of those out.

PN3373

In response to concerns expressed about the availability of food Qantas went back to the hotel and Mr Menzies got confirmation, which is QF2, to the 17 restaurants and food outlets and the various opening times and it is simply not correct to say that one cannot get food in the hotel when one checks in at the early hours of a Sunday morning or whatever time crew arrive. Room service is 24 hours and there is always somewhere open where crew can get some of the basics. So again the facts belie a lot of the evidence.

PN3374

Just turning finally to the terms of the enterprise agreement, in our submission when one looks at 17.1.2 the Commission should be satisfied that the hotel is of a high security standard having regard to the location, the security procedures and the room protection and in particular we direct the Commission to Mackay's evidence in relation to that. The accommodation in terms of the noise levels one needs to have regard to the fact that the pilots don't have a problem, the relatively small number of ICANs which deal with noise, the fact that the second inspection carried out by the procurement department and Mr Hassel and Mr Kearns did not report any noise issues, Mr Menzies own experience about the absence of noise and importantly, the context.

PN3375

This is a hotel, there will be some degree of noise, it can't be entirely removed, but there is no evidence that people are prevented from having the sufficient rest that they need in order to resume their pattern in duty and in relation to 17.1.3, again having regard to the extensive steps that Qantas took to evaluate, assess and finalise its choice in relation to hotel, the Commission should be satisfied that due regard was given to the locality and the environment inside and outside of the hotel and all of those other factors there.

PN3376

By way of guidance and it's guidance only, we would refer the Commission to a decision of Vice President Ross on 5 March 1999 which is document R2796 and this is a consent arbitration that the Vice President conducted in relation to a dispute over the standard of the crew hotel selected for crew when Qantas flew to Buenos Aires and in that matter both APA the FAAA were in dispute with the company in relation to the choice of the Hotel Quillian. Much of the evidence concerned issues which are not directly relevant to this matter because it was to do with fire safety exists and security matters concerning that aspect of it rather than the environment and location. But in our submission it is a relevant indication of an approach taken to assessing whether accommodation is first class accommodation within the meaning of clause 17.1 of the EBA. So perhaps I can provide a copy of that decision.

PN3377

THE COMMISSIONER: Yes.

PN3378

MS McKENZIE: I don't wish to take the Commission to it other than to refer the Commission to it generally and the approach taken therein.

PN3379

THE COMMISSIONER: Yes.

PN3380

MS McKENZIE: So for those reasons we would submit that no finding should be made along the lines requested by Mr McInerney and that the Commission should determine that there is no basis to intervene in the decision which Qantas has made to locate crew at the Bonaventure Hotel.

PN3381

THE COMMISSIONER: Yes, thank you. Anything in reply, Mr McInerney?

PN3382

MR McINERNEY: Commissioner, if I may make a few further comments.

PN3383

THE COMMISSIONER: Yes.

PN3384

MR McINERNEY: Commissioner, I'm concerned about some of the misleading information from Ms McKenzie. Ms McKenzie made some comments there about Mr Kenny attributing the incidents that he faced. She suggested that he'd only encountered a 5 centimetre knife. It's clear in Mr Kenny's statement that in fact it was a 10 centimetre hunting knife and at no point in his oral evidence did he change that view.

PN3385

MS McKENZIE: I'm sorry, if it was 10 centimetres I didn't mean to misrepresent what he said. If it was 10, then it was 10. It's only 3 inches.

PN3386

MR McINERNEY: Commissioner, I also noted that Ms McKenzie made some comments about that opinion evidence should not be utilised and that facts should be preferred. Well, if that's the case then I think that you might wish to be cautious about the evidence of Qantas. Ms Tarranto's evidence, her statement is littered with opinion, in fact she uses that term quite frequently in her statement. Furthermore, Ms McKenzie also suggested that Mr Mackay's opinion of reasons why cabin crew submitted ICANs should be taken into account, Mr Mackay's evidence on the whole is opinion. He has provided no facts at all to back up his assertions. There is no statements there about - or no attachments which detail crime statistics or any other factual information.

PN3387

Commissioner, also just in terms of an issue about expert witnesses, when it comes to hotel accommodation flight attendants should be regarded as expert witnesses. They stay in hotels for a good part of the year so they do have in fact expert knowledge about the standard of hotels, certainly more so than either
Mr Menzies, or Mr Mackay, or indeed Ms Tarranto. There were also two former police officers, we would regard these experts in their field and in terms of the inspection of the hotel, two FAAA officials who have experience in inspecting hotels provided their evidence.

PN3388

We also made reference to the fact that the chief pilot was the only person who was taken into account in terms of noise at the hotel and Ms McKenzie referenced that. I think in fact if you look at the transcript Mr Menzies makes it clear that the chief pilot was in fact the only person amongst that group that was sleeping in the day and who was operating and who would have the experience of a cabin crew member in relation to noise at the hotel. Ms McKenzie also referred to the Pilots Association and suggested that they are content to stay there. There's been no evidence whatsoever about the position of the Pilots Association in this matter.

PN3389

Ms McKenzie also referred to the Pilots Association having a CASA requirement to have adequate request and similarly for cabin crew there is a Qantas policy that they have adequate rest. I also note that Ms McKenzie made reference to the President of the United States of America staying at this hotel. Well, I guess we could probably assume, Commissioner, that the President would come with his own security. Indeed you're probably well aware that the President even went and visited Bagdad. There was also some comments about the issue of ICANs being high, that the level of high - sorry, excuse me. The high level of ICANs when the cabin crew first stayed at the hotel.

PN3390

The evidence that was adduced through Ms Tarranto and Mr Agar was that crew would more than likely not have been aware of the newsletter at the time of staying at this hotel. Indeed there was evidence that there is a process by which FAAA newsletters are approved by the company and this may take up to a week before those newsletters are in fact distributed to crew. Ms McKenzie also made reference to an FAA newsletter referring to the cabin crew moving from the safe environment of Pasadena. The evidence of Mr Green was that prior to staying at Pasadena the cabin crew were located in San Pedro. Mr Green referred to incidents there of assaults, of robberies and he referred to an incident where he himself was subject to - had an air pistol pointed at him.

PN3391

We would suggest that any reference to safe in that context should be related more to the previous accommodation in Los Angeles rather than any subsequent accommodation. Ms McKenzie also suggested that the ICANs that were submitted were about trying to have the decision changed in terms of this hotel. Well, it was clear from Ms Tarranto's evidence in terms of the content of these ICANs that there is commonality of issues there. It's not the case that these ICANs were simply about trying to change the decision to stay at this hotel. They were representing genuine views of flight attendants.

PN3392

Ms McKenzie also suggested that the FAAA have not been trying to improve security at the Bonaventure Hotel, again that the FAAA is simply trying to have cabin crew removed from this hotel and perhaps go back to Pasadena. Well, both Mr Menzies and Mr Mackay for Qantas detailed several meetings that the FAAA has had with Qantas over this hotel and the issues presented. They both confirmed the content and the issues raised through this process that were discussed at that meeting. It would appear from the evidence that's been provided that in fact nothing has been done about these issues notwithstanding these meetings with Qantas and the FAAA.

PN3393

In terms of Pasadena Mr Menzies made it clear that in his view Pasadena was only a three and a half start hotel compared with a four or five star hotel at the Bonaventure. So to suggest that crew were somehow trying to seek some additional benefit or move onto some better hotel doesn't seem to be consistent with the evidence provided by Qantas. Commissioner, just in terms of the FAAA newsletters and the references that Ms McKenzie made to that and she made reference to the content of those newsletters, based upon Ms McKenzie's suggestions, the FAAA effectively should not be in a position to communicate with its members. The issues that have been detailed and described in those newsletters effectively represent good communication about issues facing cabin crew who are members of the FAAA.

PN3394

Ms McKenzie also referred to a particular newsletter, I believe it was dated
14 July where it made reference to numerous issues to which crew had been subject or crew had reported, including threats of physical assaults, knives, drug taking, et cetera. Ms Tarranto for Qantas has confirmed that these matters were in fact reported to Qantas through the ICAN process. She confirmed that in oral evidence and the matters are also contained in her attachment. The ICANs are the basis of the content of that newsletter.

PN3395

Furthermore, Commissioner, Mc McKenzie also suggested that this newsletter dated 14 July somehow influenced crew in their reporting. Well, according to
Ms Tarranto's evidence most of the ICANs had already been received so again this issue or this point of view should really be given no weight. Commissioner,
Ms McKenzie also made reference to the evidence of Danila Checchin. She referred to the conflicting evidence between that obtained by Ms Tarranto in terms of a log from hotel security and suggested that Ms Checchin had not in fact provided her name or room number. As we heard from Mr Lapka today, hotel security would indeed have had access to a person's room name - sorry, their name and room number from when they rang, it would appear on their phone.

PN3396

If they did not have this information, well, clearly this is a flaw or an inherent problem with the security arrangements at this hotel and the fact that the security is prepared to mislead Qantas in relation to this issue is even of greater concern. Commissioner, if indeed the security was appropriate at this hotel there would have been CC TV footage of the incident. Thank you, Commissioner, nothing further.

PN3397

THE COMMISSIONER: Yes. Well, in the circumstances the Commission will reserve its decision and it will issue in due course. Thank you.

<ADJOURNED INDEFINITELY [12.51PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

PETER ALEXANDER LAPKA, SWORN PN3078
EXAMINATION-IN-CHIEF BY MR MCINERNEY PN3078
EXHIBIT #FAAA11 WITNESS STATEMENT OF PETER ALEXANDER LAPKA PN3083
CROSS-EXAMINATION BY MS MCKENZIE PN3091
RE-EXAMINATION BY MR MCINERNEY PN3133
THE WITNESS WITHDREW PN3136