C2005/5531, Transcript of Proceedings [2005] AIRCTrans 2499 (9 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13546-1

COMMISSIONER RAFFAELLI

C2005/5531

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION
AND
QANTAS AIRWAYS LIMITED
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/5531)

SYDNEY

10.36AM, FRIDAY, 25 NOVEMBER 2005

PN1

MR I GALLOWAY: I appear for the Australian Services Union and appearing with me is MR D QUIGLEY.

PN2

MR P SMITH: I appear for Qantas Airways Ltd and with me is MS M KAPP customer services manager from the business. There is also in attendance a number of other people from the business, I will introduce them if required, Commissioner.

PN3

THE COMMISSIONER: Yes. Yes, Mr Galloway.

PN4

MR GALLOWAY: Yes, Commissioner. This dispute concerns a dispute that the union has with Qantas in respect to a redundancy which the company is implementing at Sydney International Airport and in particular a dispute concerning the manner in which Qantas is implementing that program and the particular concern we have is that contrary in our view to the provisions of the agreement and the award Qantas is offering voluntary redundancy to employees but only accepting expressions of interest from full time employees. In effect Qantas is using the process of voluntary redundancy to engage in a restructuring of its workforce and in so doing discriminating against particular employees of the company who are part time employees.

PN5

The process or a considerable part of the process is leading up to this situation that's outlined in the dispute resolution including attempts to have a meeting between the union and the company on 20 October to resolve the matter. On
24 October the company advising the union that no part time employees would be offered voluntary redundancy. On 27 October and on 8 November the union writing to the company explaining its difficulties with the company's program including its concern about discrimination of its part time employees and asking for the company to implement the redundancies on the basis of seniority and finally on 1 November the union receiving a response from the company that denied that there was any discriminating in accepting volunteers for redundancies as the company determines it and the company refusing to agree to requests in the union's correspondence requests that the provisions of the program be applied on a non discriminatory basis.

PN6

Now, in relation to the instruments that cover employment of Qantas employees in this area the enterprise agreement provides, Commissioner, and this is at clause 44.4(f), includes a provision that the company can offer redundancy to volunteers. I might say 44 as a whole is the part of the agreement that covers compulsory redundancies but down at 44.4(f) we find the words:

PN7

A process of expressions of interest in which a suitable number of volunteers may be found -

PN8

And this is the provision that enables voluntary as well as compulsory redundancy to be offered and indeed at the beginning of 44.4 the agreement between Qantas and the ASU provides that:

PN9

Before implementing compulsory redundancies Qantas will investigate, provide information to and consult with the ASU on the following options.

PN10

Now, the particular part of the agreement then goes on to provide at 44.5:

PN11

The redundancy program shall have regard to -

PN12

And under part 2 of that clause, again amongst other things, no discrimination against employees. In relation to, just to give you an idea of the numbers, in relation to the implementation of the program Qantas we understand has received 67 and accepted 67 expressions of interest from employees. Of these 67 we understand some six of the 67 expressions of interest were part time. Of those six none of the expressions of interest, and it's less than 10 per cent of the numbers, were accepted by Qantas as being acceptable for the voluntary redundancy programs.

PN13

THE COMMISSIONER: So 67 applied for VR?

PN14

MR GALLOWAY: No, we understand more than 67 applied. We don't know the exact numbers because although we asked Qantas for this information Qantas has not provided it. But we understand that 67 were accepted. I mean perhaps Qantas would like to provide - sorry. So 67 applied and - - -

PN15

MR GALLOWAY: No, no.

PN16

THE COMMISSIONER: No, no. sorry, sorry.

PN17

MR GALLOWAY: We understand more than 67.

PN18

THE COMMISSIONER: Of those who applied 67 were accepted for VR.

PN19

MR GALLOWAY: Yes, as we understand.

PN20

THE COMMISSIONER: And amongst those who applied there were six part timers and none of those were successful?

PN21

MR GALLOWAY: That's correct, that's our understanding. Sorry, I stand corrected, Commissioner. Some 67 applied; of the 67 that applied six were part timers. Of the total 67 full time and part time applicants 30 were accepted. All of the 30 were full time employees.

PN22

THE COMMISSIONER: Yes, I see.

PN23

MR GALLOWAY: Now, in addition to the provisions of the agreement that provide particularly in part 7 that the company not discriminate against employees, clause 3.1 of the award, and this is Airline Officers Qantas Airways Ltd Award 2000, provides at 3.1 standards required by the Act, provision in relation to anti discrimination and amongst things, states that Qantas will respect, value and diversity of the workforce. Well, our view would be of course that Qantas is doing anything but respecting diversity of the workforce in the manner in which it's implementing its voluntary redundancy program.

PN24

There is some correspondence in relation to this matter which will assist yourself, sir, in getting a better understanding. I would like to table initially some correspondence of Qantas in relation to this matter. There are three documents in this first exhibit.

EXHIBIT #ASU1 CORRESPONDENCE FROM QANTAS

PN25

MR GALLOWAY: Thank you. They consist of, first of all, a memorandum from Melinda Kapp on behalf of Qantas to staff and the subject is Expressions of Interest for Redundancy Customer Service Staff Only and inviting staff to apply and the key words are in the second paragraph in accordance with in bold:

PN26

Full time staff in customer services can apply for the redundancy package.

PN27

The date of this first memorandum is 29 August. That was subsequently followed by another memorandum on 1 September also from Melinda Kapp and once again if I can take you down to the third dot point, below the heading, "Expressions of Interest for Redundancy and to the words:

PN28

Expression of interest is only open to full time staff. Job share staff can register an interest.

PN29

Finally the last document is headed Expressions of Interest. This document which does not bear a date but which I'm advised is subsequent to Melinda Kapp's memorandum on 1 September. Following representations from the ASU Qantas agreed to extend the offer to all employees full time and part time. It's just that in the upshot no part timers were accepted and we cannot discover from Qantas why none of the six part time employees did not fulfil - were not acceptable to Qantas for their program. I would like to table a further document in relation to the matter.

EXHIBIT #ASU2 LETTER FROM ASU TO QANTAS AND PETITION FROM QANTAS STAFF TO QANTAS MANAGEMENT

PN30

MR GALLOWAY: And this document has two parts to it, Commissioner. The first is a letter from Gabi Wynhausen on behalf of the ASU dated 31 October to Sue Busser who is the head of industrial relations of Qantas, asking Qantas to provide to the ASU the names of the people lodging an expression of interesting in being made redundant were made redundant, including information on gender, full time, part time employment and the date of joining. We are still waiting for a response to that letter to say that contrary to the provisions of the agreement that talk about the provision of information, consultation, there are lapses in relation to that.

PN31

The document attached, which I might say I have only received this morning which is why it has not as yet been presented to Qantas but will be presented to Qantas, is a petition by more than 80 Qantas staff working in the area asking for Qantas to apply the voluntary redundancy program on the basis of seniority and expressing a variety of concerns to Qantas including the fact, and I will take you to the second dot point, Ms Rose is an employee of Qantas:

PN32

Ms Rose indicated that she would be unable to make part time employees redundant because in the near future she would need to hire part time employees to address losses through attrition.

PN33

We would ask today, Commissioner, for the Commission to use its good officers to conciliate in relation to this matter. We haven't had any success with Qantas in resolving the matter, or indeed in receiving all the information that was from Qantas. There is provision under clause 19 of the enterprise agreement and clause 11 of the award and indeed both these clauses are part of the dispute resolution provisions of the instruments are linked, and one triggers the other, in particular the one starting at clause 19 of the dispute resolution clause and as you see, you will see in reading it, that the parties agree to use the dispute resolution in accordance with the procedures contained in the dispute in either the award - and there is a linkage between the agreement and the award.

PN34

I would also draw your attention, and I hope that Qantas shares my view that in the penultimate sentence:

PN35

Consequently neither party will pursue a jurisdictional objection that would have the effect of preventing this process occurring.

PN36

We're committed to settling this matter, Commissioner, and we'd hope that Qantas is as well for the benefit of our members and for its employees particularly, its part time employees. May it please the Commission.

PN37

THE COMMISSIONER: Yes, thank you, Mr Galloway. Yes, Mr Smith.

PN38

MR SMITH: Thank you, Commissioner. Commissioner, by way of introduction it may assist if we explain the context in which this voluntary redundancy program was affected given the significant impacts that the business faced as a result of the loss of the Singapore Airlines ground handling contract which meant a significant reduction in demand for airport services across Australia and including at Sydney international terminal. I would like to walk through a chronology of events that starts with that, indicated how we've consulted extensively with employees and the ASU in relation to this change on the business and how to implement measures to minimise and avert any redundancies or adverse impact on employees.

PN39

There's a number of things that have occurred which the ASU haven't taken the Commission to yet which I would be pleased to. I would emphasise in opening that there were no compulsory redundancies, we were able to manage this change with voluntary redundancies and also by taking a number of measures to avert the need to exit employees from the business. That included extending maternity leave, extending leave without pay, all by way of expression of interest for those that were looking to have those benefits afforded to them.

PN40

Now, we would say that there was, in the broad, no business requirements to exist part time employees. We would say that there was no discrimination. There's been no discrimination. There's been no determinant to part time employees, indeed part time employees continue to have good and valuable and secure employment at Sydney international terminal notwithstanding the loss of the Singapore work, and we would say that in any case there was a compelling and reasonable business case for the need to look to accept full time redundancies as opposed to part time redundancies, given the need to build rosters that manage the necessary and inevitable peaks and troughs that the airline faces on a daily basis.

PN41

Commissioner, with that opening in mind I might make one other point which is that we do not admit that the applications presented to the Commission is competent to attract its jurisdiction. We say that this matter being a dispute over the non acceptance of expressions of interest in voluntary redundancy made by part timers can properly be characterised as a dispute over the application of the agreement. I mention that today at the first opportunity lest it be said we sat on our hands in relation to that, but we're prepared to walk through in more detail the underlying merits of the matter, if I could put it that way, whilst reserving our rights in relation to that threshold jurisdictional issue and we'd also be prepared after I've had the opportunity to conclude my opening comments to participate in the conciliation as proposed by the ASU and that would assist in progressing the matter.

PN42

Commissioner, on 26 August this year Singapore Airlines gave the business notice that it would cease to require Qantas ground handling services in Australia effective 31 October 2005. Now, on that day, 26 August, the business contacted the assistant national secretary of the ASU, Melinda White, and informed her of that development and shortly after that there was correspondence from the executive general manager airports and catering, Grant Fenn, to Ms White and what I would like to do would be to provide the Commission if I may with a copy of that correspondence.

EXHIBIT #QF1 CORRESPONDENCE FROM THE EXECUTIVE GENERAL MANAGER AIRPORTS AND CATERING TO
MS WHITE

PN43

MR SMITH: Thank you, Commissioner. If I may take the Commission to the second paragraph which reads, and I comment the quote:

PN44

The termination by Singapore Airlines of the ground handling contract with Qantas will cause a significant loss of demand for our ...(reads)... significantly affect employees.

PN45

So I end that quote there. So what's driven this process, Commissioner, is a very real and disappointing event being the loss of a client contract. You will see in the second paragraph that reference is made to approximately 150 positions in ASU categories being affected by this loss of work. Now, that would be Australia wide. The numbers peculiar to Sydney national terminal would be somewhat less. As I go down the letter it continues and I commence the quote:

PN46

The company will also continue to consult with affected employees and their unions in accordance with applicable legislation and industrial ...(reads)... expressions of interest in voluntary redundancy.

PN47

And I end the quote there. The letter goes on to identify aspects of that voluntary expression of interest process and concludes by indicating that there will be further discussions planned, both directly between, as I understood it, Mr Fenn and Ms White, but also at national meetings which commenced on 6 September which I participated in a number of them. Now, information about the redundancies was out as early as that and the potential impact on employees and indeed the ASU was in a position to issue a newsletter as early as
6 September 2005. I have a copy of that here as well, Commissioner, if I may take you to it.

EXHIBIT #QF2 ASU NEWSLETTER

PN48

MR SMITH: Thank you, Commissioner. The first thing to note about QF2, Commissioner, is it's dated 6 September 2005, so it's within a handful of days after the correspondence to the assistant national secretary and also on the same day as - or immediately prior to a first national consultation meeting. Now, the newsletter is quite detailed. There's a significant amount of information that's available to the ASU even at this early stage, keeping in mind that the contract doesn't cease until the end of October. It indicates to employees in the second paragraph that all Sydney airport staff domestic and international will receive a letter being a letter dealing with this impact, being the loss of the Singapore Airlines contract.

PN49

Some of the information dealing with the contents of the letter which Mr Fenn sent is set out in this communication to employees and then importantly, under the heading of the Expression of Interest Redundancy Process and I go to this paragraph, Commissioner, because it indicates just how early there was no confusion in the ASUs mind as to what Qantas' position was as a whole on the issue of whether part timers and full timers could participate in the process and I commence the quote and it says:

PN50

Despite what some airport managers have been saying, all staff whether part time or full time should receive the letter explaining the process for ...(reads)... posted to their homes.

PN51

I end the quote there. So as early as 6 September the ASU was clear that part timers and full timers could participate in the process and that was made clear to members and reinforced by management. The newsletter goes on to talk about certain alternatives to redundancy which would be explored as well in tandem, with the request for expressions of voluntary redundancy, the objective of course being is to minimise the number of people that would be necessary to exit the business and thereby avoid any compulsory redundancies, which I'm pleased to say, Commissioner, on this occasion we were successful in achieving.

PN52

Commissioner, on 8 September 05 there was a national consultation meeting. It was attended by national ASU representatives, delegates from the branches around Australia and by senior management including the head of industrial relations and the head of people in airports and catering of the business. I was also in attendance at that series of meetings. I think Mr Quigley here was at least at some or all of them, and many issues were discussed about the redundancy process, the numbers, what categories, how we were going to go about it, how we could minimise. All those things were discussed at a national level and there were a series of meetings where this was supplemented at the local level, where there was consultation with local management and the local delegates about how this process would go.

PN53

So we would say and I don't look to bog down the Commission in excessive detail at this preliminary stage, but there was an extensive and transparent consultative process that occurred in relation to this round of redundancies of the business. If I move through to the issue which seems to be the focus of the notification today, Qantas received a letter from Ms Gabi Wynhausen being an advocate of the ASU NSW branch on 27 October 2005. It may assist if I take the Commission to this letter.

EXHIBIT #AF3 LETTER FROM MS WEINHAUSEN, ASU TO QANTAS, DATED 27/10/2005

PN54

THE COMMISSIONER: Yes.

PN55

MR SMITH: Thank you, Commissioner. What this letter discloses, Commissioner, is that there was some discussions at the local level in relation to whether or not the business would be accepting any of the expressions of interest made by part time employees in voluntary redundancy as opposed to the alternatives to redundancy and in that letter the ASU sets out a number of concerns. The first dot point and I commence the quote:

PN56

The work being lost is performed predominantly by part time employees, many of whom who are on permanent lines scheduled at Singapore Airlines.

PN57

I end the quote there. Now, Commissioner, what we would say about that is that whilst it was the Singapore work that was lost, the approach that was taken and indeed in agreement with the ASU at the national level - - -

PN58

THE COMMISSIONER: Are you going to turn off? Yes, Mr Smith.

PN59

MR SMITH: Yes, thank you, Commissioner. That was background thinking music, was it, Commissioner. I was making the point that the ASU has put to the business that the work being lost was performed predominantly by part time employees and that would somehow feed into the process to enhance the capacity of part timers to somehow have a preferred status to be selected for these redundancies. Now, the approach that was taken by the business in consultation with the ASU was to not limit our focus to just those employees who happened to be performing Singapore work at the time that that contract ceased to exist.

PN60

We directly explored this issue in discussions and the approach was no, we'll take a broad view, that is, everyone that performs this category of work at the airport can participate in the process, that way we can avoid compulsory redundancies of those who specifically do Singapore work in order to first take those who may wish to exit the business who are working somewhere else and then we could redeploy those who want to stay that are otherwise doing Singapore work. Now, it might have been an easier process for the business to just to hone in on those that were doing the Singapore work at the time, if I can continue the reference the music stopped, and just take those employees out of the business and effectively exercise a compulsory redundancy process.

PN61

Well, we didn't want to do that, the ASU didn't want to do that and we didn't do that. We broadened the scope and we did that in Melbourne, we did it in Sydney and we did it in Brisbane. Now, the ASU goes in their letter to state further down and I commence the quote:

PN62

The redundancy issue should not be used as an opportunity to alter the make up of the workforce to include more part timers.

PN63

This process has not resulted in an increase in the number of part timers as I understand it but what the business has done is seek to get, consistent with the operational need, an efficient rostering system and that that's best facilitated in this round by accepting the full timers and not on this occasion the part timers at Sydney international. Now, that allows us to build sufficient rosters that match the peaks and the troughs that occur on either of the day as I understand it and that that is what we sought to achieve and that that was a fair and reasonable business decision to make and not one that cut across anyone's enforceable rights to employment or that cut across anyone's ongoing employment against their will,
because the whole process was voluntary as I keep emphasising. Now, Commissioner, the business responded to Ms Weinhausen's letter by a letter dated 1 November 2005.

EXHIBIT #QF4 LETTER FROM QANTAS DATED 01/11/2005

PN64

MR SMITH: Thank you, Commissioner. Exhibit QF4 is a letter from Qantas dated 1 November 2005 to Ms Gabby Weinhausen at the Australian Services Union, New South Wales branch. The letter is signed by the head of industrial relations at Qantas, Ms Sue Bussell. If I can take the Commission to some key paragraphs in the letter, commencing the quote in the second paragraph:

PN65

The business is currently implementing the voluntary redundancy process following the loss of the Singapore Airlines ground handling contract. The expressions of interest were broadly sourced and were not limited to employees performing affected Singapore Airlines work. This broad approach assisted in averting any potential requirement for compulsory redundancies and was supported by the ASU at our various consultation meetings.

PN66

The letter then goes on to confirm that:

PN67

We have received more expressions of interest in voluntary redundancy than is required on this occasion. Consequently, not every expression of interest could be accepted. The business confirms that no unlawful or discriminatory criteria were applied when accepting volunteers for redundancy.

PN68

And I stop there, Commissioner. I'll make some further submissions in relation to the discrimination claims that are being made as we move through my opening, but keeping on with this letter, returning to the quote:

PN69

In relation to part-time employees, it is confirmed that not less than the existing numbers are currently required to assist in maintaining a viable ground handling business. Therefore, on this occasion there was no operational requirement to go beyond the expressions of interest made by full-time employees as Sydney international terminal. Had there not been sufficient interest expressed by full-time employees, then it may have been necessary to accept expressions of interest from part-time employees.

PN70

I end the quote there. However, that didn't occur on this occasion because there were sufficient full-timers expressing interest. Ms Bussell concludes her letter by noting that:

PN71

If any opportunities for redundancy are raised in the future, employees including part-time employees, would have the opportunity to express interest in redundancy.

PN72

But obviously the business's focus is to try and minimise and avert the need for that. Commissioner, employees have been informed of whether or not they were successful or not successful by the end of October in their expressions of interest, so those employees being the full-time employees that were accepted are aware of that and they are no charting the course of their lives in relation to that advice which they've received and they will commence exiting the business in the next couple of weeks. I think the first go on 6 December from memory and then there are further exits in the middle and towards the end of January.

PN73

Commissioner, there was some discussion about the numbers. I can clarify what I understand to be the position. It's not wildly different to what the ASU put to you, but if I can just confirm shortly. In the end there was a requirement to reduce 33 full-time equivalents from the business. Sixty-eight staff expressed interest in voluntary redundancy, 58 of those were full-time and 10 of those were part-time.

PN74

I think Mr Galloway referred to a figure of six, but without wanting to fuel his concerns, I can indicate it was 10 part-timers that applied for voluntary redundancy which was about 15 per cent of the total expressions of interest on my mathematics. In light of the number of measures that were taken, 27 full-time employees finished up being accepted for voluntary redundancy.

PN75

The equivalent of three full-time employees being made up of six job sharers were accepted for redundancy, the job sharers being regarded by the industrial parties as occupying a single position. The Commission has been familiarised with the job share arrangements previously.

PN76

THE COMMISSIONER: Six job sharers were successful covering three positions?

PN77

MR SMITH: That's correct.

PN78

THE COMMISSIONER: Where are the six job sharers in your group of 58 full-timers and 10 part-timers?

PN79

MR SMITH: They're in the 58.

PN80

THE COMMISSIONER: As six or as three?

PN81

MS KAPP: As individuals, Commissioner, they're in as six individuals, equating to three positions.

PN82

THE COMMISSIONER: Yes, so when you say 68 applied, you mean 68 individuals applied?

PN83

MS KAPP: Sixty-eight individuals applied.

PN84

THE COMMISSIONER: Of which 58 happened to be full-timers and of those 58, six were in fact job sharing people?

PN85

MS KAPP: Correct.

PN86

THE COMMISSIONER: Yes, Mr Smith.

PN87

MR SMITH: One full-timer has gone on leave without pay and then there were two full-time job share lines that were created and they were made up of four positions.

PN88

THE COMMISSIONER: I see, yes.

PN89

MR SMITH: And that gave us a total of 33 full-time equivalents. There was also the question, a number of women on MAT leave elected to extend up to two years the period of their MAT leave and that assisted in reducing the need for redundancies. Commissioner, I'd like to develop a couple of points about the applicable enterprise agreement, being the Australian Services Union Qantas Airways Ltd Enterprise Agreement 7.

PN90

THE COMMISSIONER: I don't have a copy of that.

PN91

MR SMITH: I can provide you with one. If I could first take you to the dispute settlement procedure on page 10. It's clause 19. Mr Galloway took the Commission to this as well in his opening, but if I could go to the last sentence or rather the second last sentence I think was the one Mr Galloway read:

PN92

Consequently, neither party will pursue a jurisdictional objection that would have the effect of preventing this process occurring.

PN93

Mr Galloway stopped there. The clause goes on and I commence the quote:

PN94

To the extent that it's necessary to do so, the parties are therefore committed to the IRC performing a private arbitration function if necessary on matters contained in this agreement.

PN95

I end the quote there, the emphasis being on those last words, being on matters contained in this agreement and note that. If I could return then to page 6 which is part 3, communication, consultation and dispute resolution. It would be our respectful submission that this provision, clause 9, was the relevant provision that applied in the circumstances of the voluntary expression of interest process on this occasion in relation to the Singapore work, that is the company consistent with this clause consulted with the employees in relation to the significant effect, being the loss of the Singapore work on operation and size of the company's workforce. All that we say was done in spades.

PN96

We then also consulted with the ASU as per paragraph 9.3 on the effects, the changes likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and we give prompt consideration to matters contained by the employees and/or the ASU in relation to these changes and, indeed, we say we did that, but no-one is exiting the business against their will or embarking upon the various measures to avert or minimise a need for redundancies and the appropriate provisions in the agreement being those embodied in clause 9 were complied with.

PN97

Now, Commissioner, what we say about part 7, compulsory redundancy, is that this section is not applicable - sorry, part 7 is on page 24 - in the circumstances of this voluntary round of expressions of interest. Part 7 is headed up compulsory redundancy. There's been no compulsory redundancies. There's no compulsory redundancies proposed. In any case, the ASU takes us to paragraph 44.4 and it sets out a range of potential options which are designed to minimise the need for compulsory redundancy.

PN98

The business has explored all those in consultation with the ASU and 44.4(f) being the provision that the ASU took us to earlier this morning, a process of expressions of interest in which a suitable number of volunteers may be found is to be followed. Now, that occurred. When we got to the end of that process, Commissioner, there was no need to proceed any further. There was no need to proceed with compulsory redundancies. We don't get into part 7.

PN99

THE COMMISSIONER: But 44.4(f) is part of part 7, isn't it?

PN100

MR SMITH: It is, Commissioner, and we say that whilst we have in effect complied with that, we haven't moved to compulsory redundancies. We haven't in fact got into this provision as a compulsory requirement on these facts. Even if the Commission was against us on that and says, well, look, perhaps we got as far as 44.4(f), we would say on any view that the process ended there and that you don't get to 44.5.

PN101

So hence our submission that the application as drafted is misconceived and it cannot be a dispute over the application of the agreement, because it's relying on provisions that deal with a compulsory round of redundancies which didn't occur on this occasion. Now, there may be other submissions that we'd want to develop to say that this cannot be properly construed as a dispute over the application of an agreement and we'd reserve our rights to do that.

PN102

But I just develop that point at this stage, to put the ASU on notice that that's where we're coming from in the event that we don't get a satisfactory resolution to this matter, but for practical purposes today, even if you did get, which we say you don't, to 44.5, we would say that the business's conduct in the context of this matter has not offended anything in 44.5, in particular in relation to the reference to (b) where it says there'll be no discrimination against employees when effecting a round of the redundancy program, being a compulsory redundancy program.

PN103

We'd say in any case that an employee's part-time status is not a basis or a ground for discrimination, so unless it is that the ASU is putting some alternative position that there is some indirect discrimination by way of carer's responsibilities, the fact that employees are part-timers cannot be a basis or ground for discrimination. If you go to clause 3 in the award which Mr Galloway took us to, it sets out in 3.1 - sorry, I don't have an extra copy of the award, Commissioner.

PN104

THE COMMISSIONER: It's okay.

PN105

MR SMITH: But a very familiar provision which I'm sure the Commission has seen on many occasions and it lists the various bases upon which discrimination may occur, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

PN106

What it doesn’t say is part-time status, part-time employment, so unless it is that the ASU and perhaps once they've had the opportunity, they'll say we're actually talking about indirect discrimination by way of carer's responsibilities, we say there's no discrimination as known or identified by the award that could occur here.

PN107

In any case, we would say that there's been no - even if there was a basis on which these employees could be identified as being potentially the subject of a discrimination ground, be it indirect discrimination or direct discrimination, we would say there's been no detriment to them. They were simply not selected for termination and made redundant.

PN108

They continue to have employment. We would say there's been no detriment. We would also say that Qantas has acted reasonably in this regard and has a demonstrated operational need to maintain their employment and the positions which they occupy and that it's a reasonable requirement to continue with that employment, even if we did get into this dialogue about discrimination.

PN109

There were a number of points the ASU made as we move through, a number of which I think I might have addressed as I've gone through my opening, but the ASU I think has had some complaint that they perhaps have not received all the information that they would have liked to have received in relation to some aspects of the process.

PN110

I'm not too sure what that information is that they're seeking. I know that there's been extensive exchange of information at the national level and also a series of meetings locally where information was exchanged. I note the letter which was marked ASU2. I don't know as I stand here today whether a written response was provided to that.

PN111

THE COMMISSIONER: Well, it was, wasn't it? Isn't that QF4?

PN112

MR SMITH: QF4 is a written response to the ASU letter dated 27 October.

PN113

THE COMMISSIONER: I see, yes.

PN114

MR SMITH: I don't know as I stand here whether a written response was made to this letter dated 31 October 2005. It's been suggested to me that there may have been. I just can't recall. That doesn't mean it hasn't occurred. Certainly this information that's been sought was the subject of discussions of meetings that I was at and where numbers and figures were exchanged in relation to it is my recollection. Mr Quigley might say in a variable fashion, but I think that there was definitely discussions about it and there were numbers put forward and there were attempts to have meetings at a local level to illuminate the process in relation to these things, but if there needs to be more illumination around factual material, well, then we'd be pleased to participate in a consultation process and try and facilitate that would be a response I'd make in the broad to it and I can dig further with the assistance of my colleagues as to whether or not a written response went out to that letter after these proceedings.

PN115

Without wanting to go into an unnecessary level of detail at this preliminary stage, Commissioner, we'd simply say that we've followed a fair and transparent process in managing the adverse impact of the loss of the Singapore Airlines contract, that we have done so in a way which will best place the business to be a viable ground handling provider and that has involved in part, amongst many other things, focusing on our capacity to build rosters that meet the flow of work which tends to be hard at the beginning and the end of the day as I'm advised and that is assisted by part-time work, that we would reserve our rights in relation to threshold jurisdictional issues concerning the competency of the application to attract the jurisdiction, but other than that, we'd be prepared to participate on a without prejudice basis in discussions with the Commission. Absent any questions, that is my opening.

PN116

THE COMMISSIONER: Thank you, Mr Smith. Happy to go into conference, Mr Galloway?

PN117

MR GALLOWAY: There's just a couple of points I'd like to put on the record, Commissioner. Listening to Mr Smith, I got the impression that Qantas believes that because it's not implementing compulsory redundancies, the ASU should take no offence to the program. That, of course, isn't the point of our notification. Rather, the point of our notification is that in implementation a voluntary redundancy program, Qantas is using it as a vehicle to restructure their workforce and discriminating against its part-time employees.

PN118

Perhaps we would be able to provide Qantas, perhaps we'd be able to amplify on our view that their conduct has been discriminatory, Commissioner, if we had had a response to our letter of 31 October asking for, amongst other things, the names of the people who'd lodged expressions of interest in their voluntary redundancy program, including information on the gender and whether they were full-time or part-time employees.

PN119

Today is 24 December. We're still waiting for a response from Qantas in relation to that. We would say that, just for the record, the application is competent to attract the jurisdiction of the Commission and in relation to part 7 of the agreement which is headed compulsory redundancy, includes amongst other things at 44.4(f) - at 44.4 I should start with:

PN120

Before implementing compulsory redundancy, Qantas will investigate -

PN121

and, of course, there aren't any compulsory redundancies. This is a voluntary redundancy program, so it should be read in terms of the application of the agreement. This dispute is about the stage prior to the implementation of any compulsory redundancy program. That hasn't been necessary because Qantas has attracted sufficient expressions of interest in voluntary redundancy, but in going through those expressions of interest, it has clearly made a decision.

PN122

And there are in some of the exhibits that we tabled previously instances where Qantas has said we will only accept expressions of interest from full-time employees and even after talking to the ASU and agreeing that we will put out an invitation for people to give expressions of interest, regardless of what we say to you, ASU, we are going to go ahead and implement it on the way we see fit, anyway, and if you're part-time at Qantas, you miss out.

PN123

You might believe it's in your interests as a part-timer to get a voluntary redundancy package, the same as a full-time colleague working side by side, but you are second class when it comes to Qantas implementing a voluntary redundancy program. In 44.4(f) it says:

PN124

A process of expressions of interest in which a suitable number of volunteers may be found.

PN125

Now, the heading compulsory redundancy in some ways is I guess misleading in that the part 7, clause 44, amongst others, includes - part 7 includes a scheme of compulsory redundancy and if you like as 44.4 points out, before Qantas proceeds, before the employer proceeds to implement compulsory redundancies, it must do these things, including attracting expressions of interest from volunteers prior to implementing it and relevant as well in attracting jurisdiction we say and relevant to the application of provisions of the agreement is 44.5, the redundancy program, not the compulsory only redundancy program, the whole scheme is redundancy shall have regard to, amongst other things, (b), no discrimination against employees and it might be relevant to point out under (a), retain an age, skill and experience balance within the areas of employment in each employment category.

PN126

Employment category clearly in our view contemplates full-time, part-time. We know from Qantas that people occupying job share employment have been included in the program and in effect a job share employee may not be categorised as a part-time employee, but is clearly working part-time hours, so Qantas seems to draw a distinction and a discriminatory distinction depending on which category of employment you are in, so that is if you are a full-time employee, they are very anxious to get you out the door. If you are occupying part of a job on a job share basis, equally they're very happy to see the last of you.

PN127

However, if you're a part-time employee and our understanding, although we do not have the information because Qantas has still not supplied it, our understanding is that the majority of part-time employees are women and some of those women have child care responsibilities, but as I said, despite asking for information on amongst other things the name and the gender of these employees, we're still waiting for those from Qantas, so I just seek to put those points to the Commission's attention. May it please the Commission.

PN128

THE COMMISSIONER: We will adjourn into conference.

<SHORT ADJOURNMENT [11.32AM]
<RESUMED [12.29PM]

PN129

THE COMMISSIONER: Yes, the parties have conferred with the Commission in relation to this matter. At least one thing is proposed and that is that Qantas will make certain information available to the union in response to a request and that material is to be, Mr Smith?

PN130

MR SMITH: Yes, Commissioner, the ASU has requested a response to the document marked ASU2 in proceedings earlier this morning. The company has indicated in private conference that we will indeed provide that information on the basis that it doesn't identify any individuals, so individuals' privacy is respected, but we will otherwise provide the information they seek.

PN131

THE COMMISSIONER: Yes. Mr Galloway.

PN132

MR GALLOWAY: Yes, could we have an indication, Commissioner, from Qantas of when we're likely to receive that information? That's the first thing and secondly we don't see this matter as being concluded and so we'd seek at this stage to have the matter stood over generally.

PN133

THE COMMISSIONER: Yes. Mr Smith.

PN134

MR SMITH: Commissioner, the business would look to provide that information by close of business Friday next week which is - I don't have my diary in front of me.

PN135

THE COMMISSIONER: The 2nd.

PN136

MR SMITH: 2 December. Thank you, Commissioner.

PN137

THE COMMISSIONER: On that basis, these proceedings are now adjourned and the file will be kept open for further listing should it be necessary. On that basis, these proceedings are adjourned. Thank you.

<ADJOURNED INDEFINITELY [12.31PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ASU1 CORRESPONDENCE FROM QANTAS PN24
EXHIBIT #ASU2 LETTER FROM ASU TO QANTAS AND PETITION FROM QANTAS STAFF TO QANTAS MANAGEMENT PN29
EXHIBIT #QF1 CORRESPONDENCE FROM THE EXECUTIVE GENERAL MANAGER AIRPORTS AND CATERING TO
MS WHITE PN42
EXHIBIT #QF2 ASU NEWSLETTER PN47
EXHIBIT #AF3 LETTER FROM MS WEINHAUSEN, ASU TO QANTAS, DATED 27/10/2005 PN53
EXHIBIT #QF4 LETTER FROM QANTAS DATED 01/11/2005 PN63