C2005/470, Transcript of Proceedings [2005] AIRCTrans 2504 (12 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13559-1

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

C2005/470

TRANSPORT WORKERS’ UNION OF AUSTRALIA
AND
WESTAFF PERSONNEL CONSULTANTS QANTAS FLIGHT CATERING LIMITED
s.99 - Notification of an industrial dispute
(C2005/470)

ADELAIDE

10.03AM, MONDAY, 28 NOVEMBER 2005

PN1

MR A GALLAGHER: I appear on behalf of the Transport Workers' Union of Australia. Appearing with me is MR S DONNELLY.

PN2

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Gallagher. It might be best if we start with some background information to ensure that you have at least access to the material that I have got, Mr Gallagher. I am aware that the union sought to involve, in effect, three businesses in this hearing this morning. One was Qantas Flight Catering, one was an organisation known as Westaff, and the other was an organisation known as Ready Workforce.

PN3

In email correspondence between my associate and the TWU, or through that process, I raised a question about the extent to which Ready Workforce could be involved in these proceedings, and I have left that matter on the basis that I cannot see that organisation as a party to the dispute finding which underpins this application, but I am very happy to hear you on that issue today.

PN4

MR GALLAGHER: If I may, basically, the federal office of the TWU sought to involve Westaff and Ready Workforce. That wasn't my intent. We basically wanted a simple section 99 to deal with a pressing industrial situation at Qantas Flight Catering. Subject to the hearing today, we may have reserved our right to take whatever action under the Workplace Relations Act in respect to the other entities.

PN5

THE SENIOR DEPUTY PRESIDENT: In terms of Westaff, I expected that organisation to be here today. In terms of Qantas, I received correspondence on 25 November from Qantas which sets out their position. Surprising as it maybe, Mr Smith, the Qantas industrial relations manager, is both not able to attend these proceedings and apparently not able to find someone else to represent Qantas. He did set out his position in correspondence to the Commission. Have you received a copy of that letter, Mr Gallagher?

PN6

MR GALLAGHER: No, your Honour. I did receive a communication from our federal office indicating that Mr Smith may have some difficulty with today's hearing. I said the matter was of pressing industrial importance and that surely there would be someone who could appear and, in my view, the person who should be here is the Qantas catering manager in Adelaide. I don't think it is an industrial technical matter at all, it is just simply a matter of dealing honestly with a couple of workers.

PN7

THE SENIOR DEPUTY PRESIDENT: It might be best if I read that letter to you just so you are aware of what Qantas have told me. Mr Smith's letter indicates that the matter is listed for hearing before me on Monday, 28 November. He advises he is the industrial relations manager for the Qantas group with responsibility for Qantas Flight Catering Limited's operations at the Adelaide catering centre.

PN8

He continues to say:

PN9

Unfortunately, I am not able to attend the Commission in Adelaide on Monday. I am required in Cairns to meet with the Queensland branch of the TWU for the purpose of negotiating an enterprise agreement for our Cairns Catering Centre on both Monday and Tuesday next week. I have contacted the TWU to seek a relisting of this matter; however, I have been advised that the TWU does not consent to a relisting of the matter. Notwithstanding my availability, QFCL submits that this matter is not one which can give rise to an industrial dispute between QFCL and the TWU under the Workplace Relations Act of 1996. Further, insofar as QFCL is concerned, it is not a dispute between an employer and employee under the scope of clause 14 which is the procedures for settlement of industrial disputes of the Airlines Operations Transport Workers' Award of 1998. This is clear from the dispute notification filed by the TWU. The notification identifies the alleged industrial dispute is concerning "refusal by Qantas Flight Catering Limited to allocate work to labour hire employees". By way of background in October this year the Qantas group made a decision to identify a preferred supplier for the provision of casual labour for its QFCL and Caterair operations nationally. This resulted in a change from the existing casual labour hire providers at the Adelaide catering centre -

PN10

Mr Smith then identifies Westaff and Regency:

PN11

- to the new preferred supplier, Chandler Macleod, through their Ready Workforce Business Unit. Information sessions were held in Adelaide in late October 2005 for all existing agency casual staff and during the following three weeks they were invited to apply for positions with Ready Workforce. Mr Smith has been advised that the Ready Workforce recruitment process involved an application, interview and assessment, a medical, a criminal history check and a reference check. Secondly, the employees of Westaff and Regency were advised whether or not they were successful with their application to Ready Workforce on or around 20 November 2005. Thirdly, 22 agency casuals were successful with Ready Workforce, five agency casuals elected not to apply with Ready Workforce and eight Westaff casuals were unsuccessful with their application with Ready Workforce. Any decision to employ or not to employ the agency casual was a decision made by Ready Workforce, not QFCL. QFCL was not previously and is not now the employer of the agency casuals that are the subject of the alleged industrial dispute. Even if the TWU has a concern with reference checking process, and QFCL's involvement in that process, that is not a matter that can be the subject of an industrial dispute between the TWU and Qantas under the Workplace Relations Act. The employment or otherwise of the agency casuals is a matter of Ready Workforce. QFCL submits that a "refusal by Qantas Flight Catering Limited to allocate work to labour hire employees" cannot give rise to an industrial dispute that is about matters pertaining to the employment relationship between QFCL and its employees. As I have explained above, I am unfortunately unable to attend the hearing listed before SDP O'Callaghan on Monday. I am currently exploring other options to see if QFCL can be represented at the hearing. However, if this matter is not relisted and proceeds on Monday, QFCL will rely on the content of this letter in these proceedings.

PN12

Mr Smith continues to provide a contact telephone number. Now, at the conclusion of the hearing today I will ask my associate to ensure you are given a copy of that letter but that more or less represents the sum total of my knowledge of the content of the matter to date, Mr Gallagher.

PN13

MR GALLAGHER: Your Honour, if you see fit I could basically touch on the matter where Qantas don't see that there is an industrial dispute and give you some background information in respect to that to sort of get us over that threshold issue. I mean, basically the - - -

PN14

THE SENIOR DEPUTY PRESIDENT: I am in your hands as to what you want to put to me this morning, Mr Gallagher, I will listen carefully.

PN15

MR GALLAGHER: Basically, the TWU notified a section 99 consistent with the Act that we believed that it was an impending situation which may have involved a number of meetings, it may have involved some withdrawal of labour and in accordance with the Act we sought section 99 application and would have then put this morning had the company been present that we would attempt to deal with that through conciliation.

PN16

But the nub of the issue is that I have been contacted by our delegates, a number of individual members of the Transport Workers' Union who have been upset and are seeking some meetings in respect to the failure by two of the eight people who are not picked up in this exercise, and I can only represent two of those eight people as only two are members of the Transport Workers' Union.

PN17

Basically, the situation is that for the last 18 months the two persons that are members of ours have complied with the contract of employment and worked at Qantas for the appropriate security clearances - - -

PN18

THE SENIOR DEPUTY PRESIDENT: Can I interrupt you? Have those two people over the last 18 months been employees of Qantas Flight Catering Limited?

PN19

MR GALLAGHER: They have been employees of Westaff which is the organisation which for quite a number of years has provided the labour hire.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN21

MR GALLAGHER: Quite frankly it has been the normal entrance into the industry, you go through a labour hire company then you go into part-time, then you go into full-time, that is the situation, it has worked well for Qantas and ourselves for the last 15 years.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes, but they are actually employees of Westaff?

PN23

MR GALLAGHER: Employees of Westaff in a Qantas uniform, with Qantas passes, with Qantas security clearances, abiding by Qantas occ health and safety procedures, Qantas trained and licensed where appropriate and for 18 months they have been in that role. They have no disciplinary record or any incidences where they have failed to meet the standards for the job. They were approached and told that there would be a transmission of labour hire providers from Westaff and Regency to Ready Workforce, that people need not worry about that process, they were the doing the job well now and it would simply be a matter of going through another medical, another police check, which there was a small cost of $149 for the medical and $50 for the police check.

PN24

They were advised by the company there was no issues with their work and that they would simply go through and pay these costs and things would continue on as normal. They both tell me that they were told by Ready Workforce that they met the requirements of the act in respect of the medical, the aptitude tests and the like and they left their with a roster due to commence on the Monday for another six weeks worth of work.

PN25

Basically, on the Sunday night they were rung up and told that they were unsuccessful. When asked the reasons why, the person said they were just the messenger and were not able to go into the reasons why, and they contacted their direct supervisor at Qantas, that person said it is a matter for Ready Workforce and when they contacted Ready Workforce they were told that Ready Workforce is not legally obligated to give them a reason.

PN26

So it is in this process that the dispute arises, that our members are aware of all of this, they think it is a gross ..... of natural justice, terribly unfair. If people are not going to be employed tell them why. I think any worker anywhere labour hire, casual or permanent who is not continuing in employment in these sorts of processes is basically entitled to natural justice, why haven't I been employed, can I fix it up.

PN27

The reality is that an additional number of labour hire people have been put on the job at Qantas, there is an additional number of approximately two who have been employed in the place of the eight that are not, they are doing like for like work, there is no diminution in the rate of pay or the grade of work. Essentially, eight people have not been picked up in this process, ten people have, and it is an extremely unusual set of circumstances which, I think, Mr Smith probably couldn't answer so in one respect him not being here today is not all that much of an impediment, but the catering centre manager should and would be able to explain these sorts of questions or answer these sorts of questions.

PN28

To be perfectly frank, your Honour, it is a known practice that to get a job at Qantas someone tells you to enrol at a labour hire company, you go and enrol at a labour hire company and then Qantas requests you by name. That is the way the world works in Adelaide and that is the way it has always worked.

PN29

THE SENIOR DEPUTY PRESIDENT: But, Mr Gallagher, if at this point any rate Qantas are not the employer, and that is what I understand you to be telling me that Qantas is not the employer, then a process of attrition in terms of what section 99 allows the Commission to do would be such that it would be difficult for me to see how I could regard the union as being in dispute with Qantas in this matter. You may have a dispute but whether I could characterise that as an industrial dispute for the purposes of section 4 of the Act.

PN30

MR GALLAGHER: Perhaps I have made a mistake, your Honour, maybe we should have just gone ahead with the disputes on the job and were to come here in respect of some orders against us and perhaps then it would have been conciliated in a moderate and fair manner.

PN31

THE SENIOR DEPUTY PRESIDENT: You see what I am just trying to establish is what capacity the Commission has got to act in relation to the current section 99 notice, and if Qantas is not the employer then you will need to help me in terms of what capacity I have got to maintain their involvement in this matter, and that the second issue is that that gives rise to a question as to with whom your union, on behalf of its two members, is actually in dispute. It seems, if I have understood the situation correctly, you are not really in dispute with Westaff because they don't have a contract anymore. That is if I have understood the scenario correctly.

PN32

MR GALLAGHER: That is correct.

PN33

THE SENIOR DEPUTY PRESIDENT: The question then arises as to how you are in dispute with Ready Workforce, and the issue that then arises is in terms of those two persons they are not employees, and that gives rise to the third issue that I need to clarify with you, if they are not employees that represents a reasonably fundamental impediment in terms of how I could describe the matter as an industrial dispute for the purposes of section 4 again. So you will need to help me in terms of those three categories of issue.

PN34

MR GALLAGHER: In terms of an industrial dispute the section 99 is quite clear that if there is going to be a dispute, and my definition of a dispute is a series of meetings, failure to work, refusing to work, people standing outside the catering centre instead of standing in it even in very short timeframes where they have report back meetings, that would be construed very clearly by Qantas as an industrial dispute, they would notify this Commission and they would be seeking a remedy under the Act. All we have done is sought to have the notification of that impending dispute, to have some conciliation in hand, get some commonsense back into the argument.

PN35

THE SENIOR DEPUTY PRESIDENT: But you see Qantas would have the same difficulty that I am eluding to here. Let's say, and I am not suggesting it or encouraging it in anyway, but if there was industrial action occurring in relation to some of those people who are now presumably employees of Ready Workforce, and Qantas sought to bring the matter into the Commission as a section 99 application, they would have to climb over the hurdle called what is their role in the employment relationship if I am understanding it correctly.

PN36

MR GALLAGHER: With respect, it won't be the employees of Ready Workforce only, it will be the employees of Qantas that are in dispute and there are a 100 plus people who are awaiting a report back out of this attempt to get some commonsense into this pitch.

PN37

THE SENIOR DEPUTY PRESIDENT: How do you say that I have got to act in the matter, and I am not trying to put road blocks up in front of you, but I think it is obvious in that if I act without power I am probably not doing too many people many favours and the issue that I am struggling with is what power I have got.

PN38

MR GALLAGHER: I accept that, your Honour, it is totally bemusing to me that there is no one here from the company, there are appropriate people who deal with these issues on a daily basis in Adelaide, there are a number of authorised people who would have a better and more complete picture of what has transpired here then Mr Smith. It would appear to me as if the company is just taking the view that it is an industrial matter, I am the only one that deals with it, and everybody else can wait.

PN39

I don't think our members will wait for that, and if you want to adjourn these proceedings then c'est la vie, we will adjourn today and we will go off and see what happens and then if we reconvene at a later date and it is a different application or a different subject matter so be it. I simply wanted to avoid a situation where there could have been and probably will be some dislocation to QFCL services by using the Commission's ability to refer to conciliation an impending issue. If they choose not to see that way that is fine and I can't demonstrate to you that you have power to deal with this matter then so be it.

PN40

THE SENIOR DEPUTY PRESIDENT: You see, I am all ears to try to hear how I have the capacity to do it, but the issue that I am really struggling with is if I have properly understood the issue it is that the essence of your dispute is with an organisation called Ready Workforce who haven't employed two people who you reasonably expected to be employed. If those two people had been employed you wouldn't have been here today, is that correct?

PN41

MR GALLAGHER: That is absolutely correct. The essence of our dispute though we do not say is with Ready Workforce although we have some issues with Ready Workforce particularly not being legally obligated to advise people of their success or otherwise and I will get legal advice on that, but my issue is with Qantas and whilst you say that the direct employment is with Ready
Workforce - - -

PN42

THE SENIOR DEPUTY PRESIDENT: I think you are telling me that the employer is Ready Workforce and formerly Westaff. I am not telling you anything, I am trying to listen to understand the issue.

PN43

MR GALLAGHER: The facts are quite simple, Westaff has lost the contract, they are attempting to find alternative employment for these people. Ready Workforce has the contract, they haven't picked these people up, we are saying to the employer, your process has caused our membership to have considerable disquiet about this.

PN44

THE SENIOR DEPUTY PRESIDENT: You are saying to the employer the employer being?

PN45

MR GALLAGHER: QFCL.

PN46

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN47

MR GALLAGHER: QFCL.

PN48

THE SENIOR DEPUTY PRESIDENT: This is where I am confused. Are you saying now that Qantas are in fact the employer?

PN49

MR GALLAGHER: In the minds of our members and in the minds of the people that work there, they wear a Qantas uniform, they wear a Qantas ID, they have a Qantas clearance to go airside, they abide by all of the rules of Qantas but they are de facto employed by Ready Workforce, it is an arrangement that has worked well, there are 30 people in this situation out of the 100 plus that work at QFCL. If you ask people where they work they will say, I work for Qantas through Ready Workforce.

PN50

Our members take them in as Qantas workers and over time most of the established members of Qantas have ..... through labour hire company's casual, part-time, full-time Qantas jobs. It is a feature of the enterprise agreement, it is a flexibility that is nationally available to Qantas to tune up and tune down their workforce, is a labour hire company, in a strict legal technical sense Qantas isn't their employer but in every other sense they believe they are Qantas employees and they are treated by the existing Qantas employees as one of the family and that is what is causing the potential for disputation here.

PN51

I accept all of the points that you have made and I am not qualified to argue or put better submissions in respect to that, we certainly have plenty of people that can do that in our federal office and in our legal support areas, but I came here with clean hands to try and sort out a dispute. Qantas has sort to wash their hands of it, now, there is either going to be a dispute or there isn't a dispute and we will probably find out in the next 24 hours or so.

PN52

So I don't really think much more can be gained here today because of what I would have put had the company been appropriately represented, can we not adjourn into conference and go through these issues, and the guts of it is tell people why they haven't been employed, give them a reason. That is not unusual or unfair after 18 months of satisfactory service, after being told that it is a transmission of labour hire companies to be not picked up and told at 8 o'clock on a Sunday night when you were given a roster for six weeks on the Friday night is just unfair and that is giving rise to our concern in our membership.

PN53

THE SENIOR DEPUTY PRESIDENT: Can I ask, what award or agreement do you say governs the employment of the employees now engaged by Ready Workforce?

PN54

MR GALLAGHER: They are paid consistent with EBA five or six of the Qantas Flight Catering. They are paid at that grade plus the loading.

PN55

THE SENIOR DEPUTY PRESIDENT: All right, but are they paid in accordance with that agreement because Ready Workforce is a party to that agreement or is it simply the case that they are paid that rate or those rates as a result of some administrative arrangement.

PN56

MR GALLAGHER: My understanding is that there is an administrative arrangement and quite frankly what has happened is Ready Workforce has become the labour hire provider nationally up until the recent retirement of a Qantas flight centre manager here, he has had an arrangement with Westaff which has worked for him, he has gone in the last month or so and now the translation to Ready Workforce who are the deemed national labour entity has happened.

PN57

So it is an administrative arrangement, we actually nutted it out in the EBA that they needed to be able to tune up and down their workforce without redundancies so we said you can have x number of labour hire people at x number of sites a percentage to.

PN58

THE SENIOR DEPUTY PRESIDENT: There is no dispute that Ready Workforce are not party to that agreement?

PN59

MR GALLAGHER: No, they are not party to the agreement.

PN60

THE SENIOR DEPUTY PRESIDENT: It is obvious that given that you are the only one here today, we are not really going to advance the matters very far today.

PN61

MR GALLAGHER: I understand that.

PN62

THE SENIOR DEPUTY PRESIDENT: Can I say I think there are two or three options that might be worth considering. If, indeed, you say that in reality Qantas are the employer then you have got the opportunity to advise me of that position in which case I will take steps to try to make sure that Qantas do in fact attend a further relisted hearing. At that hearing you need to be on notice that you would need to be able to establish that Qantas is in fact the effective employer and that the labour hire arrangement is in effect nothing more than a facility for payment of persons through a labour hire contractor.

PN63

In that regard I am in your hands, it might be a question that you want to take some advice on in terms of the employment status of those employees. If you say that Ready Workforce is in fact the employing entity then the second set of options relate to the enforceable vehicle which governs the employment of those employees and it could be that Ready Workforce are, at the end of the day, obligated to comply with a relevant state common rule award. It could be that they are respondent to one or more federal awards or, indeed, an agreement. I simply don't know.

PN64

If it is the case that you want to take action under a federal award or agreement that you say is binding of Ready Workforce, then I am very happy to convene a further hearing or conference depending on the provisions of that instrument at very short notice. If it is a state common rule award that you say regulates the employment of Ready Workforces employees, then can I suggest that you might alert my office to that, but you would need to put in a dispute notification under the state act. The purpose of alerting my office is I will then talk to the relevant state Commission member to try to expedite an early hearing of the matter.

PN65

The third option is one that you have alluded to and that is to the potential for some form of industrial action. Now, to the extent that that industrial action involves employees other than employees of Ready Workforce you will obviously need to pay very careful attention to the potential that that action would be unprotected industrial action and would put your members at risk.

PN66

I don't see all that many other alternatives. Please don't take that as licence to proceed with the industrial action, in fact, it is the opposite as I am concerned that that could very quickly disadvantage your members but I can't see too many other alternatives, Mr Gallagher. I am very happy to act on those that are within my domain, but I do need advice from you in terms of where you think the matter is going to go from there.

PN67

MR GALLAGHER: No, your Honour, I think you have summed up the situation very clearly. We came here simply with a view that there is potential for industrial action, we realise it is unprotected, we sought to avoid that. With perhaps a brief hearing and statement from either side we could have adopted or adjourned into conference and got some plain talking going and sorted the issue out. That hasn't eventuated and your options are very clear to us, we will take advice on that. Basically, I would just like to thank you for bringing the matter on so quickly and we will see what happens.

PN68

THE SENIOR DEPUTY PRESIDENT: All right. I will leave the Commission's file in the matter open for another fortnight on the basis that if I have not heard from you within that time I will close the file and live on in hope that you folks would have sorted the matter out through co-operative discussions.

PN69

MR GALLAGHER: Thank you.

PN70

THE SENIOR DEPUTY PRESIDENT: If I do hear from you in that time then I think you know what it is you will need to establish and come prepared to argue.

PN71

MR GALLAGHER: No worries, thank you, very much.

PN72

THE SENIOR DEPUTY PRESIDENT: I will adjourn the matter on that basis.

<ADJOURNED INDEFINITELY [10.34AM]