C2005/4202, Transcript of Proceedings [2005] AIRCTrans 2563 (30 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13788-1

COMMISSIONER RICHARDS

C2005/4202

AUSTRALIAN LICENCED AIRCRAFT ENGINEERS ASSOCIATION, THE
AND
JET CARE PTY LTD
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/4202)

BRISBANE

11.51AM, FRIDAY, 16 DECEMBER 2005

PN1

MR G NORRIS: I appear on behalf of the ALAEA and I have with me MR T COOK and MR C RYAN.

PN2

THE COMMISSIONER: Good, thank you.

PN3

MS J GLYNN: I seek leave to appear on behalf of Jet Care Pty Ltd and with me I have MS V FAVARO of Freehills and MR L SMITH, employee relations manager, Patrick.

PN4

THE COMMISSIONER: Good, thanks, Ms Glynn. Mr Norris, is there any objection taken to Ms Glynn's appearance?

PN5

MR NORRIS: Commissioner, I though that was resolved in the first - - -

PN6

THE COMMISSIONER: Did we deal with that in our initial conciliation, did we? But, if it is resolved, is it?

PN7

MR NORRIS: I could lodge the same objection but I think we would get the same hours.

PN8

THE COMMISSIONER: Sorry, did we deal with this at the initial conciliation some months ago?

PN9

MR NORRIS: I believe before we went into conciliation we dealt with it and I think that given that it is a jurisdiction, if I recall correctly I think the Commissioner's view was that Freehills be allowed in, but we did object initially.

PN10

THE COMMISSIONER: Yes, well, I think in the context of jurisdictional application but also in Ms Glynn's participation over the course of these proceedings in any event I would, on that basis, see merit in granting leave for Ms Glynn to appear. That said, Mr Norris? Sorry, before we commence is it intent that Mr Ryan will be giving evidence in this matter? Is there anyone else?

PN11

MR NORRIS: Mr Ryan and Mr Cook, Commissioner. Unless the Commission was of a mind to, in hearing the jurisdictional issues, consider the circumstances and facts arising from Mr Cook's employment, we would be saying that there shouldn't be any objection to them staying.

PN12

THE COMMISSIONER: Ms Glynn, do you have any objection to that?

PN13

MS GLYNN: I don't, Commissioner, but it might be worthwhile just raising this point at this stage, Commissioner. I note that there have been extensive witness statements that have been filed on behalf of Mr Cook and Mr Ryan and Jet Care submits that a substantial proportion of those statements do not go to the jurisdictional issues but rather they go to the substantive merits of the case.

PN14

It is not my intention to cross-examine the witnesses at length about all of those substantive issues because I assume that we will be given the opportunity should our jurisdictional objection not be upheld to produce evidence in relation to the substantive issues of the merit claim and it is on that basis that I wouldn't be cross-examining and that I wouldn't have an objection to them staying in the hearing room.

PN15

THE COMMISSIONER: I think you also put that view in writing if I recall. On that basis they can stay in the proceedings. Mr Norris?

PN16

MR NORRIS: Thank you, Commissioner. Commissioner, just some issues arising from the procedures and the directions. There was certain material and it raises the threshold issue is that there was certain material that was placed in the submissions made by Jet Care or Freehills on behalf of Jet Care which, in our view, are inappropriate and inadmissible in regard to this matter and it goes down to the issue of without prejudice documentation and the material being admitted into the Commission. Albeit for a jurisdictional argument and as to whether that is appropriate or not and I think in our submissions we did allude to that problem.

PN17

THE COMMISSIONER: Yes, in your submissions in reply.

PN18

MR NORRIS: In reply, yes, Commissioner. And we went to an authority on it which was the Medtel Federal Court of Australia Medtel issue where - that was Courtney v Medtel Pty Limited [2001] FCA 1365 of 25 September 2001. If it pleases the Commission I do have a bundle of authorities that - copies that we were asked to supply and I have supplied those to the respondent.

PN19

The decision is in that bundle. But save to say, Commissioner, the issue is in effect that we contend that based on the authority of Medtel that the without prejudice material not be admitted in submission or in evidence and that we feel that it would be appropriate for the Commission to deal with that issue as a threshold issue because obviously the determination by the Commission in regard to that will assist the parties in regard to, in effect, what they maybe able to further elucidate on in their submissions today.

PN20

In the Medtel matter the without prejudice issue and the admission of without prejudice material and that privilege was canvassed in great detail and the court under the heading of Without prejudice privilege in paragraph 8 went to a number of precedent cases where the without prejudice principle was discussed and at nine they say:

PN21

At common law, privilege attaches to negotiations conducted "without prejudice" for the purpose of negotiating a settlement of a legal dispute. The rule, which governs the admissibility of evidence, is founded upon the public policy of encouraging litigants to settle their dispute

PN22

And that came from Cutts v Head of 1984. The court then went on to say:

PN23

It protects the parties to a dispute from the consequences of having concessions or admissions made for the purpose of settling the dispute put in evidence if the negotiations fail. The rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence.

PN24

Commissioner, in general in the industrial relations arena in Australia, some of those negotiations between parties in regard to try and settle disputes from time to time involve claims, counter-claims, arguments by one side to the other, sometimes the parties may exchange insults to that extent to further their point and it is with the appropriate respect of that argy bargy in effect in trying to reach a settlement that the without prejudice privilege applies because effectively if we didn't have that sort of protection parties may never canvass any obtuse area in regard to - or an appropriate arrangement or documentation to arrive at an appropriate agreement.

PN25

As to whether the parties decide in settlement of agreement whether it is a matter before the Commission or the court for that matter to provide someone with whatever reward or punishment or whatever is really not the matter for the court or for the Commission. If the parties decide to encapsulate their settlement in a particular manner whether that be in unfair dismissal matters, people walking away from a matter or people accepting some sort of payment or some sort of favour, that is not up to the Commission to consider and undo or for the Commission to even consider.

PN26

We would say in this particular matter where it was raised by Freehills in regard to AWA negotiations that in effect those AWA negotiations are private between a bargaining agent and their client and also between the company and the bargaining agent and whether a bargaining agent in what they put to a company to try and settle an AWA matter should be canvassed by the Commission we would say, well, the Act has something to say about that. And also we would say that it is basically inappropriate on the basis of a without prejudice privilege as well.

PN27

However, we will say in this particular matter, Commissioner, that the parties did go into conciliation in this matter before the Commission in the initial stages, the parties left that conciliation with an understanding that they would go away and have further discussions in an attempt to settle the matter. To then turn around for the other side to present before the Commission that material that was involved in trying to reach settlement away from the Commission is a gross abuse of a without prejudice privilege and we say that those submissions and that evidence that has been presented should not be allowed in at this stage and that we seek a direction from the Commission in regard to those particular bits of evidence, submissions and material that has been supplied, if the Commissioner pleases.

PN28

MS GLYNN: Thank you, Commissioner. There is two issues here as we see it, one is the admission of the without prejudice documents and as I understand it Mr Norris is also objecting to the admission of material generally in respect of the offering of the AWA.

PN29

MR NORRIS: That is correct.

PN30

MS GLYNN: I will firstly deal with the admission of what has been described as the without prejudice documentation. We would submit, with respect, that this is a situation where Mr Norris is attempting to have his cake and eat it too. ALAEA, in its submission in reply, makes the follows arguments regarding privilege and that is essentially that attachment LS2 to LS6 of the witness statement of Lachlan Smith relate to an attempted without prejudice settlement of the dispute currently before the Commission should be struck out and not considered by the Commission.

PN31

If we actually turn to those attachments to Lachlan Smith's affidavit which I understand is not marked at the moment and focus on attachment LS2 to LS6. The first one is LS2 being an email from Mr Norris to Lachlan Smith dated 22 August 2005 and I note that it is marked without prejudice but if you read that email, Commissioner, the majority of the email is about, and I refer specifically to the second paragraph in that email, is about the offering of an AWA as an avionic LAME.

PN32

MR NORRIS: Commissioner, I object. The premise of our submission in regard to without prejudice material, and Ms Glynn has admitted that these documents are headed without prejudice, the issue is whether the Commission should even look at these documents and entertain them on the basis that they are done without prejudice. If the company - - -

PN33

THE COMMISSIONER: Mr Norris, just a moment. I just might hear Ms Glynn's argument in reply to your initial submission then we will see where we go to from there.

PN34

MS GLYNN: Commissioner, simply because a document is marked without prejudice doesn't mean it is privileged, there are legal tests which is actually supported by the case of Courtney v Medtel Pty Limited that Mr Norris referred to about whether a document is in fact privileged or not. It is not sufficient that it simply be marked without privilege and the Medtel decision that Mr Norris referred to was based on the rule in section 131 of the Evidence Act and, Commissioner, I will come to later but I am sure that you are aware of the fact that the Commission is not bound by the rules of evidence under section 110 of the Act.

PN35

Section 131 or the Evidence Act which is outlined conveniently at the bottom of page 4 of that decision, the Medtel decision, it says:

PN36

"Evidence is not to be adduced of:

PN37

(a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute.

PN38

And that is the emphasis that we would put on it, Commissioner. It is an attempt to negotiate the settlement of the dispute and this is where Mr Norris is attempting to have his cake and eat it too. Under the characterisation that we understand that the union is putting on this matter this is a dispute over the application of the agreement. The email relates to the offering of an AWA. Now, Mr Norris has made clear in his submissions that ALAEA challenges the fact that this is a dispute over the offering of the AWA.

PN39

So given that we submit that the email relates to the offering of the AWA, we cannot see how it is a correspondence which is made in an attempt to negotiate the settlement of the dispute at issue in this case which relates to the certified agreement. It doesn't talk about the various terms of the certified agreement, it doesn't talk about the application of those terms, it doesn't talk about the rates of pay under the agreement or the various classifications, it talks about the AWA and I think it would be a departure from - I assume it would be a departure from the argument that ALAEA has been pushing, they now say that this is a dispute about the offering of an AWA.

PN40

So, Commissioner, we say that simply putting without prejudice on that email does not give it privilege because it is not an email which is sent in settlement of the dispute as they have characterised it. The other point I would make in relation to that, Commissioner, is in respect of the other emails as well.

PN41

THE COMMISSIONER: Tell, Ms Glynn, what weight could I reasonably attach to iterations between the parties following a conciliation conference about a means by which they might resolve the matter?

PN42

MS GLYNN: Well, Commissioner, we would say that rather than striking out this particular document and the others that it is a matter for the Commission to put the weight that they see fit on it. I mean, one of the limbs of our jurisdictional argument today is that this dispute is not properly characterised as a dispute over the application of the agreement because it is more genuinely a dispute over the terms of an offer of an AWA and we are entitled to lead evidence which supports that and really it is a matter for the Commission as to how much weight it puts to the material contained in that email and the subsequent emails but it is not a matter which should be struck out at this stage because it is relevant to the proceedings.

PN43

THE COMMISSIONER: Mr Norris do you want to reply in the manner you were in mid-stream?

PN44

MS GLYNN: Commissioner, sorry, can I just say I have got a bit more to say in relation to the other emails in the AWA issue generally.

PN45

THE COMMISSIONER: I will come to this matter without hearing further material. I am familiar with the documentation, it has been submitted to me, I have examined it and I do have a view about its role in these proceedings. I am going to allow the materials that have been submitted to take their place in these proceedings, but I have to emphasise to the parties, and I make it clear that in my view I do have grave issues about the weight that I should attach to these documents.

PN46

I will, over the course of these proceedings, give due regard to that matter as well as in my eventual decision so whilst these documents will play their role in these proceedings, I admit to my substantial reservations as to what possible weight they might have but having said that the reasons the Commission is not bound by the rules of evidence and is capable of enquiring into in seeking the information that it requires for purposes of its functions. I will hear the parties in relation to these documents but, again, I underline the fact that I have reservations about what potential weight they might be able to be afforded. So that said, continue.

PN47

MR NORRIS: Commissioner, obviously you have got the ALAEAs submissions in regard to jurisdiction. Commissioner, I might address the decision in regard to, and the issue of whether this is a dispute over someone becoming respondent or being deemed to be bound by a certified agreement or not, and address that issue firstly.

PN48

Commissioner, that is not the ALAEAs contention because there is no contention about that at all because the interim agreement is quite clear. The interim agreement quite clearly states that Jet Care and the ALAEA are bound by the agreement and it also states that the employees at Jet Care who work in maintenance are also bound by the agreement whether they are members of the ALAEA or not.

PN49

There is not contention, there is no ambiguity and there is no uncertainty about that clause, it is cut and dried, so there is absolutely no issue before the Commission about whether Jet Care are actually bound by the agreement or not because we know that they are and to that extent, Commissioner, if there was an argument about Jet Care being bound by the agreement there are a number of disputes that have come before this Commission that the Commission has ruled on under 170LW on in particular in regard to the training bond and another issue in regard to the application of the clause on the CPI rises that came before the Commission and at no stage has the company made a jurisdictional objection or made the objection that it is not in effect bound by the agreement.

PN50

The question of whether an employee is bound by the interim agreement or not arises out of whether they are employed as an AME or a licensed aircraft engineer in effect performing maintenance work on any aircraft that the company maintains. To that extent, Commissioner, in similar terms the General Aviation Award applies in a similar manner and the scope and coverage of the General Aviation Award is similar as well.

PN51

But if I could go to the cases that Freehills referred to in regard to this issue of the Commission being able to rule on whether a party is bound to a certified agreement or not, I think the initial case that Freehills alluded to, if I can just go to their submissions, which is the CPSU v Tenix Solutions Pty Ltd matter.

PN52

In the CPSU v Tenix Solutions Pty Ltd that matter, Commissioner, has no relevance to this matter whatsoever because that matter was about determining whether or not another legal entity was in fact going to be bound by the certified agreement in relation to transmission of business. There is no issue of transmission of business here before the Commission.

PN53

Freehills have taken the very, very large step of implying that restricts in some manner the way a Commissioner might determine along the way to determining an appropriate classification or rate of pay for a person who is bound by an agreement that the Commission cannot actually make some sort of observation that the person is bound by the agreement.

PN54

The Commission is not barred from doing that. The Tenix decision does allude to in part an appeal to the Full Bench in PR922053 of the Commission in the Australian Municipal Administrative Clerical and Services Union v Automated Meter Reading Services which was a Full Bench of Munro J, Kaufman SDP and Commissioner Cribb which dealt with a similar issue in regard to whether the determination of a employer bound by a certified agreement as a successor was whether it was an exercise of a judicial function or not.

PN55

Both Munro J and Commissioner Cribb in their joint decision agreed that in line with Cram and other authorities that the Commission could make such observations along the way to solving a genuine 170LW dispute. Commissioner, Kaufman SDP provided a dissenting view, but the characterisation of those two particular cases is in effect that they are dealing with successes of transmissions and whether in effect the Commission is exerting a judicial function in regard to those matter.

PN56

In Automated Meter Reading Services the Commission was of the view that because the dispute in effect was properly characterised by a dispute over the application of the agreement it could make in the same vein as Cram the observation along the way, yes, that the parties - or a determination that the parties were bound to deal with the dispute over the application of the agreement.

PN57

We say that in this particular matter that doesn't even arise. This dispute is rightfully characterised as a dispute over the appropriate classification, the rate of pay of Mr Cook given his qualifications, skills and competency.

PN58

THE COMMISSIONER: Can I just ask you there. What is the dispute that the Commission is on the way to resolving?

PN59

MR NORRIS: In this matter?

PN60

THE COMMISSIONER: Yes, and you say it is the appropriate classification and rates of pay which should be afforded to Mr Cook.

PN61

MR NORRIS: That is correct.

PN62

THE COMMISSIONER: That is the dispute?

PN63

MR NORRIS: Under the certified agreement.

PN64

THE COMMISSIONER: If there was no debate about the coverage of the agreement, what is being the dispute then about the application of the clauses in relation to classification remuneration?

PN65

MR NORRIS: The dispute over the application of the agreement effectively relates to the circumstances Mr Cook was placed in in regard to his training, qualifications and skill. The rates of pay applicable to the classifications in the certified agreement are based on, in particular, are based on whether a person is considered to be an AME, which is an unlicensed aircraft maintenance engineer, or a licensed maintenance aircraft engineer in various levels of classification, whether that be a mechanical licensed engineer or an avionics licensed aircraft engineer. In Mr Cook's case, he is a licensed aircraft maintenance engineer avionic and he became licensed aircraft maintenance engineer avionic during a period of time where, and I don't think the company will challenge this, during a period of time when the company had placed him in a position such as his classification of work would be covered and applied under the certified agreement.

PN66

The trigger to do that is in regard to the type of work that he was performing at the time and the type of work that the interim certified agreement qualifies to apply certain rates to is what the parties know as the Virgin Blue contract. The interim agreement if you look at the mechanism, the interim agreement effectively covers all maintenance people on the site.

PN67

The appropriate rate of pay argument is triggered by the type of work they do so that while the interim agreement covers everyone on the site what triggers an appropriate rate of pay and an appropriate person to be falling into an appropriate classification is in fact whether they work on Virgin Blue contract type work and as we understand the logic behind that, the logic behind that is that those rates can be paid because Jet Care directly bills those rates back to Virgin with some sort of mark up and I think the initial contract was what was known as a cost plus contract. In other words whatever was incurred there was a margin placed on top of that and Jet Care recovered that money.

PN68

Having said that, Commissioner, if you apply the interim agreement, the interim agreement invokes the previous certified agreement being the original Greenfield's agreement which was converted into an LJ and then was subsequently in all its terms and conditions incorporated into the interim agreement.

PN69

That in turn incorporates certain sections and parts of the General Aviation Award and cites those in clause 8 as to what the applicable clauses are in the General Aviation Award. It does say that certain rates will apply to people who perform work on Virgin Blue aircraft and we say that in Mr Cook's circumstances there were a number of periods of time where he was required to work on Virgin Blue aircraft and Virgin Blue componentry that obviously goes to the evidence of Mr Cook in the records of the company and that arising from that was the enactment then of that appropriate rate of pay to be paid to him by applying that clause in its appropriate manner.

PN70

The way these agreements are structured and the way this agreement was structured were to reward people for their skill and competency. It wasn't on the basis of effectively, the basis of piecework or the basis of a person performing particular tasks on a day-to-day basis. The reason being is that licensed aircraft engineers for a start have to undergo a large amount of training, they have to complete examinations, they are covered by statutory instrument in regard to those examinations and those qualifications and they have to renew those and have to maintain their competency to have those renewed by CASA every two years.

PN71

Whether or not when a person has that appropriate level of skill or competency whether or not the company then chooses to deploy them on whatever work doesn't detract from those people being paid for their skill and competency. The General Aviation Award is in effect structured in the same manner that while a person gains those qualifications under the General Aviation Award they attract certain payments because the General Aviation Award in itself is a skills and competency based award.

PN72

So in effect when a person does attract that rate of pay given their skill and competency it is then up to the company as to how they utilise that skill and competency. It is not up to the company to adjust their rate of pay once they are eligible to receive that rate of pay. Once those people have reached that appropriate level of skill and competency according to the definitions of the award and, in this case, the certified agreement, then those people maintain those rates of pay.

PN73

This is what happened to Mr Cook. Mr Cook was required to work on Virgin Blue aircraft and componentry on a number of occasions and that is matter of factual record. In the period of time where the company concedes that he was having the certified agreement in effect applied to his employment in that period of time he became a licensed aircraft engineer and he was working at the time he became licensed on Virgin Blue aircraft. So he quite clearly fell under the classification of the agreement. The company disagrees with that.

PN74

MS GLYNN: Commissioner, can I just raise an objection? To me we seem to be drifting into issues about the substantive merit of the case rather than addressing jurisdictional issues and if Mr Norris is going to continue, I guess, lead evidence from the bar table in relation to those issues then we would object.

PN75

THE COMMISSIONER: I am not sure whether we have drifted that far in submission as yet. I know Mr Morris is traversing a wide compass to come to his point but I am not too sure we are off into the merits argument as yet so, Mr Norris, you can continue and I will have regard to whether we are drifting too far.

PN76

MR NORRIS: Commissioner, it is necessary for us to look at the facts and circumstances that give rise to the dispute to determine in effect whether there is a dispute and whether then there is a dispute within the realms of section 170LW and which effectively enacts the disputes procedure and it would be necessary for the Commission to in effect recognise the dispute arises from the movement of a particular employee from one range of work to another and it would be, in our view, remiss to deal with this determination of whether there is actually a dispute over the application of the agreement or not in effect in a vacuum.

PN77

We say, Commissioner, that rightfully the dispute as it is in our submissions arises over the particular clauses that we have cited in our submissions, but the fundamental issue here and in dealing with the objections of Freehills and Jet Care in this matter in regard to the Commission exercising a judicial type function in regard to determining whether or not the particular class of employment or the classification of work arises out of the certified agreement can only relate to then the particular circumstances of the individual that is involved.

PN78

Other then that if it didn't involve a particular individual, yes, obviously a dispute wouldn't be there because we wouldn't have a claimant in the first place. Having said that, Commissioner, we did put to the Commission in regard to the operation of section 170LW in this matter and Freehills on behalf of Jet Care drew the Commission's attention to the decision in McMahon Contractors v CFMEU in regard to the private arbitration function whether or not that in effect is restricted by section 170LW in relation to division 2 agreements.

PN79

Commissioner, our submission was probably more in line with the submissions of the CFMEU made in the original matter before Commissioner Bacon. We note that on appear the Full Bench had a different view. I am informed by the CFMEU, Commissioner, that is going to the Federal Court and depending on what the outcome of the Federal Court matter is, we would reserve our rights if the Commission was going to entertain that particular matter which, given that it is a Full Bench decision, I suppose you are obliged to do, that we reserve our rights given the outcome of the Federal Court matter if the Commission was to make a determination based on that decision then we reserve our rights to come back in light of the Federal Court's decision.

PN80

Given, from we understand through the CFMEU that the ramifications of that decision is reverberating through most of the employers and unions at this point in time who have used disputes procedures which have similar words in regard to handling all grievances as a way of achieving industrial peace and resolving these matters over a number of years now it certainly does have significant ramifications for those disputes that have been resolved in the past and in effect may well be undone.

PN81

THE COMMISSIONER: The simple point is that for the Commission's purposes that Full Bench decision exists and that is the end of the story.

PN82

MR NORRIS: We concede that, but we reserve our rights to come back, Commissioner, if - - -

PN83

THE COMMISSIONER: You always have those, yes.

PN84

MR NORRIS: In regard to the rest of our submissions, Commissioner, we think this is a very simply straightforward consideration of a dispute over the application of the remuneration clauses and the classification clauses in the certified agreement. There is no and there should be no - - -

PN85

THE COMMISSIONER: I just stop you there again if you don't mind, Mr Norris. Again, I will ask you that question, that is, what is the dispute, what are the particulars of the dispute about those clauses you just referred to as opposed to the dispute about whether or not the agreement applies per se? What dispute have you been in with the employer in relation to those particulars that you cited that give me evidence that there has been a dispute about how those clauses apply?

PN86

MR NORRIS: Commissioner, if I can take you to the agreement? Commissioner, I might in a way work backwards in that the appropriate clauses we say the dispute arises is over part 4 of the Jet Care Aircraft Engineers Virgin Blue Agreement 2000-2002. I say that for the sake of referring to the document because effectively this certified agreement being past its nominal expiry date has been superseded by the Jet Care Aircraft Engineers Virgin Blue Interim Agreement 2003.

PN87

That Jet Care Aircraft Engineers Virgin Blue Interim Agreement 2003 invokes the terms and conditions of the Jet Care Aircraft Engineers Virgin Blue Agreement 2000-2002 and all the terms and conditions shall be imported in their entirety into this agreement save for the nominal expiry date which will not apply.

PN88

Effectively, Commissioner, if you go to the original agreement, part 4 of that contains a section on definitions, remuneration licenses and allowances and in it it contains in clause 28 definitions and we say that rightfully Mr Cook should be paid or his definition of employment falls into a LAME electrical instrument is an employee employed by the company as such who holds as a minimum qualification a license rating of B737, 300, 400 electrical and B737, 300, 400 instrument type rated.

PN89

That clause has been applied by the parties that the minimum qualification applies because the aircraft types, the 300, the 400, aircraft have been totally replaced by a more advanced aircraft being the 700, 800 type and the parties have applied that clause to those people who gained their 700, 800 licence and applied that same definition to those people basically because the aircrafts were substituted.

PN90

The parties over the years have in effect applied these rates in the certified agreement to those people who hold 700 and 800 because in years gone by and when Virgin Blue first commenced it was a prerequisite to gaining an 800 licence or an NG licence as it is called that a person would have already had a 737, 300, 400 licence so in effect it is considered to be the minimum qualification but the minimum qualification as such within the 800 is basically incorporated into the 800 or these days is considered to be the same as being incorporated into the 800 type licence.

PN91

Then in clause 29, under remuneration, it says:

PN92

Aircraft engineers engaged by the company perform aircraft engineering work in a classification class where it is specified in this clause shall be paid no less than a respective rate of remuneration, license claims and additional rates as paid per fortnight as follows.

PN93

These rates are then paid in accordance with the roster arrangements at the time which exists in clause 10 through to clause 15. It is an all up salary and it was paid for, basically, all purposes. When a person worked on Virgin Blue aircraft in the past prior to the company offering AWAs people who worked on Virgin Blue aircraft were paid in accordance with this agreement.

PN94

In Mr Cook's particular circumstances the company chose to have him work and engage him on working on Virgin Blue aircraft and change his initial employment from working on regional aircraft to working on Virgin Blue aircraft and at that time he then became a LAME and we say that they then should have applied this clause correctly in that he should have been classified under this clause and paid these appropriate rates in the agreement.

PN95

Having said that the company did not do that, what the company did was they changed Mr Cook's employment and his classification from a licensed aircraft maintenance engineer which they were paying him in accordance with the General Aviation Award and then when they moved him onto shift in regard to working on the Virgin Blue contract as such they then declassified him to an AME where in effect he was already a licensed aircraft engineer.

PN96

If he had maintained his rating as a licensed aircraft engineer under the General Aviation Award based on his general aviation award rate he would have received approximately 60-odd thousand a year based on the roster that is in - if you applied this roster in regards to the General Aviation Award provisions. However, the company acknowledges in their correspondence and they have also acknowledged that they placed him under the coverage of the certified agreement and applied him as a classification as an AME under the certified agreement and the agreed rate has flowed on from the initial base rate here for AMEs in Jet Care is fifty three thousand per year.

PN97

In moving Mr Cook over to doing this work they have effectively lowered his hourly rate by $2 an hour by asserting and conceding that he was covered by the certified agreement as an AME. That may all have been well and good and we don't know whether that was acceptable to Mr Cook or not at the time as that is not before you at this point in time, but the fact was that a reasonable employee would expect that, "Yes, I will go over there, do my work, do my training, I will receive the AME rate of pay and then when I get my licence I am going to be paid the higher rate of pay and, therefore, that is the reward for me doing this".

PN98

But that didn't happen. What happened was they continued to pay him the AME rate of pay even though he became a licensed aircraft maintenance engineering during that period of time when he was directly working within the classification of this agreement and paid as such. Then when that stint of work, instead of him gaining the reward for obtaining that qualification, when the company then when he raised this dispute with the company in not being paid the rate he was then moved back off the shift, back into the hangar purportedly to not work on the Virgin Blue contract, that's subject to contention on our part as well, and then in some magical way his hourly rate of pay then reverts to the higher LAME rate of pay of an increase of $2 an hour where he's recognised as a licensed aircraft maintenance engineer and what the company asserts is under the GA Award.

PN99

So here's the rub for Mr Cook, not only does he undergo the training and the examinations and does the appropriate hours of experience to gain his licence on the behest of the company, they transfer him in their jargon and not ours, from one agreement to another to in effect disadvantage him in both cases. Because if they had applied as they maintained that he's employed under the general aviation award, as an employee under that and they had applied the general aviation award provisions to this particular shift rotation, he would have in fact been entitled to a considerable amount of more money than what in effect he was paid and in our view the company has given - so the company either here as incorrectly applied the wrong classification either under the award, which is incorporated into this agreement, or they have incorrectly applied the appropriate classification of work, clause 28 and 29 in regard to when he became a LAME licensed whilst he was working and his employed was - he was engaged by the company to perform work on the Virgin Blue aircraft.

PN100

THE COMMISSIONER: So then the dispute that is before the Commission is a dispute about the appropriate rate of pay that should have been accorded to
Mr Cook upon him becoming a licensed AME during the period of his secondment, as the company put it, to under the Virgin Blue contract for a specified period of time, is that what's in dispute?

PN101

MR NORRIS: That's part of the dispute.

PN102

THE COMMISSIONER: Well, for the purposes of this hearing we need to identify all the matters that can be in dispute.

PN103

MR NORRIS: Yes.

PN104

THE COMMISSIONER: So that is a dispute.

PN105

MR NORRIS: That is a dispute.

PN106

THE COMMISSIONER: That is a matter in dispute.

PN107

MR NORRIS: Yes, and we say that that in effect, what arises from that, Commissioner, is then I suppose the issue of other circumstances and the merits of whether Mr Cook performing particular sort of work directly related to the Virgin Blue contract.

PN108

THE COMMISSIONER: Well, I will let you go on to specify these other disputes.

PN109

MR NORRIS: Yes. The other periods of employment that are under the contention is the - and the ALAEA, the scope of the ALAEAs claim I suppose is that Mr Cook in effect was made an authorised person in December 2003 when he was qualified as a licensed aircraft engineer and meeting the classification descriptions within the general aviation award. He became an authorised person by an authority to perform work on Virgin Blue aircraft componentry which involves him signing on a quality assurance and an authority basis that the components are in effect in a correct and maintained standard and airworthy to be fitted to an aircraft.

PN110

Now, all that work and obviously it's within the evidence that I will suppose we'll get to later is that all that work in effect is generated by a Virgin Blue work order and Mr Cook performs that work on a regular daily basis ongoing and has done from December 2003. So the question arises as to whether the company then has applied clause 28 - sorry, clause 29 in regard to the appropriate classification of an AME on the subsequently agreed rate of 53,000 per year while he has been performing that work and that was before he actually became licensed on the relevant aircraft type to Virgin.

PN111

The statutory nature of the scheme of things, Commissioner, is that the authority goes to those people who aren't licensed but are required to certify and effectively what it is is that - - -

PN112

THE COMMISSIONER: Sorry, is there a difference though between being an authorised person and certification?

PN113

MR NORRIS: Yes, there is.

PN114

THE COMMISSIONER: There is a licensed AMA who does the certification?

PN115

MR NORRIS: Yes.

PN116

THE COMMISSIONER: The authorised person is one step back in the chain?

PN117

MR NORRIS: The distinction is that a licensed aircraft engineer is authorised to certify for the airworthiness in regard to maintenance performed on aircraft. A person holding what's commonly known in the industry as a PE stamp or production examiner's stamp or this type of quality assurance authority is effectively to perform work on the components of the aircraft, to maintain them to a standard of airworthiness so they can be fitted back on the aircraft but once they are fitted to the aircraft the licensed aircraft maintenance engineer certifies in regard to the airworthiness of that work when it's fitted to the aircraft, that's the nature of the steps.

PN118

Having said that, Commissioner, all this work is related to the Virgin Blue contract. It's directly billed back to Virgin Blue and it's all authorised under a Virgin Blue work order to perform that work. Now, we say at that particular time that that's when Mr Cook should have been classified as a person engaged to perform aircraft engineering work in relation to the Virgin Blue contract and that in effect was a change to his employment contract because gaining a maintenance authority in relation to a particular AOC holder in the aircraft industry fundamentally changes your duties on a day to day basis and your responsibilities and your accountabilities.

PN119

If Mr Cook in effect certified for that particular componentry then it was appropriate to fit an aircraft and it subsequently turned out that that was not the case he would same the appropriate disciplinary action, not only by the company I would imagine but also by the statutory authority and his authority to do that work would be revoked and there may be other action to be able to be taken against him. Having said that, Commissioner, because Mr Cook is also licensed, whether he's licensed under the GA award or under the certified agreement, there are statutory ramifications and ramification in common law for him in that it's been well canvassed in this industry and a number of articles that have been published in regard to the LAMEs liability under the law that once a person becomes licensed and they hold a licence, whatever licence that may be, and whatever work they perform on an aircraft, they are still held accountable in regard to holding a licence.

PN120

It doesn't necessarily have to be an endorsement as such on a particular aircraft. So in the event that there was some sort of disaster happen arising from the work that any licensed aircraft engineer might have done in relation to that aircraft or whether they have worked on the aircraft componentry or certified, they can still have criminal brought against them in regard to the inappropriate - and had in effect have their licences revoked. Now, if that was the case obviously if that ever happened an aircraft engineer having his licence revoked is basically the death of a career in this industry. So they still have that same responsibility hence over the years the classifications in the awards and the certified agreements have been written in the terms of your skill and qualification and competence in regard to the licence.

PN121

The fact is that once a licensed aircraft engineer obtains that licence it has been the custom and practice amongst most companies in this industry that they maintain that payment. It's also the case under the general aviation award, Commissioner, that that principle applies because it's a payment for maintaining and skill and competency and your knowledge.

PN122

THE COMMISSIONER: I wonder whether you can just articulate the second element of the scope of the association's claim for me. You have said that since December 2003 Mr Cook was carrying out ongoing work, which is I presume not that it was all the work he did but he regularly did this work very - - -

PN123

MR NORRIS: He had an ongoing responsibility for that work.

PN124

THE COMMISSIONER: And did he carry out that work? He had responsibility for it and he carried out work on a - - -

PN125

MR NORRIS: And he carried out that work, yes.

PN126

THE COMMISSIONER: With what degree of regularity, is this his constant work stream or was this a - - -

PN127

MR NORRIS: As I understand it, it is on a daily basis.

PN128

THE COMMISSIONER: So your argument is that Mr Cook from December 2003 and that was at such time as he was qualified as a licensed aircraft maintenance engineer, is that right?

PN129

MR NORRIS: I will make a distinction there, Commissioner, in that he was qualified as a licensed aircraft maintenance engineer in relation to non Virgin Blue aircraft types. That might be the best way to distinguish that period. He became a licensed aircraft maintenance engineer in relation to Virgin Blue aircraft types in February 2005.

PN130

THE COMMISSIONER: So your argument is that during this period when he was carrying out componentry work under the Virgin Blue contract he was - sorry, from that point can you articulate exactly what - - -

PN131

MR NORRIS: Well, in our view he should have been classified as an AME pursuant to clause 29 of the 2000 agreement. I only refer to the 2000 agreement, Commissioner, on the basis that it's been imported into the interim agreement.

PN132

THE COMMISSIONER: And at the rates - yes.

PN133

MR NORRIS: Now, Commissioner, I might just clarify the issue of the - if you actually go to clause 29 of that agreement it says the AME rate is 38,000. What happened, Commissioner, is the parties at the commencement of this agreement, given the state of the industry at the time and the need to attract people - - -

PN134

THE COMMISSIONER: The rates were adjusted by the - - -

PN135

MR NORRIS: Well, they were, Commissioner. They were adjusted - - -

PN136

THE COMMISSIONER: I was going to go into it but I stopped myself.

PN137

MR NORRIS: They were actually adjusted under the agreement, under the provisions of the agreement. I am just trying to find the - - -

PN138

THE COMMISSIONER: That's all right. All those of us who have shared some of this history know what happened there in relation to those rates. But that’s the second element of your claim, is it, that when the componentry work was being undertaken. The rate of pay that was paid was not at the rate that was appropriate to the classification that Mr Cook was working under during that work.

PN139

MR NORRIS: That's correct, yes. Commissioner, if I can just deal with - - -

PN140

THE COMMISSIONER: You have told me that he should have been paid - can you tell me at which rate you allege he was paid at during that time and what you think he should have been at that time?

PN141

MR NORRIS: Commissioner, he was paid a rate derived from the general aviation award. Now, at that time that was the AME rate and I think it was something like $14.90 an hour. I would have to go to the witness statement of
Mr Cook on that. However later, after December 2003, because Mr Cook's overseas qualifications as a licensed aircraft engineer in South Africa weren't current or recognised in Australia he had to undergo what's called ..... assessment exams to have that licence recognised in Australia so there was a period of time after that that he became licensed and as such his pay was adjusted to the LAME rate or he was reclassified in effect under the general aviation award rate of pay to attract the licensed aircraft engineer rate.

PN142

The general aviation award doesn't distinguish between whether an aircraft is a Virgin Blue aircraft or a Qantas aircraft for that matter. The rates are set in more general terms and in accordance with the ratings that people hold and the licences that people hold in regard to particular streams of work. Commissioner, just in regard to that AME rate and how it came about, how the 53,000 came about, in clause 29, towards the end of that clause in the second last paragraph the result of that rate came out of this clause which says:

PN143

The company undertakes to review in conjunction with the ALAEA the salary classification of the AME under this agreement after a period of 12 months.

PN144

And that was the agreed rate after that and that’s what's been applied since. That's how we get from the 38 in the agreement to the 53. So in dealing with the second part of the scope of the claim in regard to the circumstances of Mr Cook we say that from December 2003 the company did not apply clause 28 appropriately and that he should have been classified in regard to that particular clause. The certified agreement doesn't provide any additional reward in regard to a person who becomes licensed in effect on non Virgin Blue aircraft types.

PN145

In other words, if you're working on Virgin Blue aircraft and you hold licences on say a Dash 8 or a Kingair for that matter, then you would still be classified as such as an AME under the certified agreement with the only qualification being that you are actually engaged to perform work on the Virgin Blue contract. Having said that, Commissioner, as a consequence of that inappropriate application of those clauses it then falls from that as a cascade that when Mr Cook was moved from performing that work that clause 3 of that agreement should have been applied as well in that what clause 3 says is that:

PN146

The agreement shall apply to all duties, functions and responsibilities undertaken by aircraft engineers identified within the agreement ...(reads)... provided under this agreement.

PN147

Now, in our view, Commissioner, where the company hasn't applied that clause appropriately is that in not applying the remuneration clauses appropriately they then subsequently have not applied clause 3 appropriately in that when Mr Cook was taken off on a day to day basis working on Virgin Blue aircraft and componentry as such, if he was, then they should have maintained his salary. They should have maintained his salary at what we say should have been the 53,000 level. Now, an important consideration here too is that in effect the componentry and the authority to sign off and certify for that componentry in the Virgin Blue contract, while he was moved from line maintenance as such back into the hangar he still continued to perform work, that authority work in relation to the Virgin Blue contract.

PN148

Now, the functionality of that, Commissioner, is that for whatever period of time on a day to day basis that Mr Cook actually works on the Virgin Blue componentry and he doesn't work all day on that, he may work part of the day but he has an ongoing responsibility on a day to day basis, he performs some work on that, on that basis all the work that Jet Care generates from Mr Cook in regard to that or the hours and the work that's done on that, is then charged back to Virgin on an appropriate rate with an appropriate mark up for the company. Now, this agreement, the certified agreement in effect in the principles of equity was, in the first place, was generated so that employees who did contribute to the operations of Virgin Blue would be rewarded accordingly.

PN149

It wasn't meant to be an instrument where the company could shuffle people around from time to time and in effect have the employees perform the work on the Virgin Blue and then the company reap the full benefit of that work that's performed to their own ends and not in effect reward the employees who have performed that work. But that's what's happened to Mr Cook in this case in the company not applying these particular clauses appropriately.

PN150

THE COMMISSIONER: Is your argument there, and we seem to be on perhaps a third point, a third area of dispute here, is your argument there that at all times following the conclusion of his secondment Mr Cook should have been continued to be paid the Virgin Blue agreement rates as a consequence of having worked on the Virgin Blue contract in the previous period?

PN151

MR NORRIS: I think there's two ways to look at this from our point of view. One is that he didn't cease working on Virgin blue componentry or in relation to the Virgin Blue contract. He still fulfilled that function and he was engaged to do so. They're required to do so by the company and obviously if that's the case then he would in our view still continue to attract that appropriate rate of pay.

PN152

THE COMMISSIONER: Yes.

PN153

MR NORRIS: Secondly, we say that even if he wasn't required to perform that work on a day to day basis clause 3 preserves the rate. Now, from time to time other aircraft engineers, both AMEs and licensed aircraft engineers who are remunerated in accordance - or used to be remunerated in accordance with this certified agreement, they're all on AWAs now, do work in the hangar which from time to time are required to assist on working on the regional aircraft which are the Kingairs and the Metros and I understand there's another contract that's recently come into the hangar as well because sometimes there's just not enough labour to complete the work in time.

PN154

But those people when they do come over and do that and when they are employed on that, clause 3 protects them and their rate doesn't drop. Now, that doesn't happen all the time and as I understand it's sporadic but it has happened. And the company doesn't drop their rate because they know full well that they are protected from that happening. I suppose the - I think we're up to number 3 are we?

PN155

THE COMMISSIONER: Well, I'm calling them 3(a) and 3(b).

PN156

MR NORRIS: Okay.

PN157

THE COMMISSIONER: There's two elements to that third argument. You have got two limbs to it, that at all times you remained under the agreement for reasons that you continued to do Virgin Blue contract work by virtue of doing componentry work or due to fulfilling the componentry duties, or else notwithstanding that the clause 3 preserved the operation of the application of the agreement to Mr Cook even upon the conclusion of the functions he was performing under the Virgin Blue contract.

PN158

MR NORRIS: Yes, that's our submission. The fourth issue or the fourth heading I suppose, Commissioner, is the issue over the appropriate payment for training and the training arrangements. Now, without pre-empting anything I understand and I might defer t Ms Glynn as to where we're up to with that issue, but as I understand it the company may be looking at that particular issue and attempting to resolve that. Mr Cook informs me that there's been some discussions on the site in regard to that part of the dispute so it may well suit the Commission to hear from the company at this point in time as to whether there is some possibility of settling that and we're happy to isolate that one if it means that it may facilitate a settlement.

PN159

THE COMMISSIONER: Well, can you just tell me firstly, is this issue an issue that arises in relation to the application of the agreement, that's what I - - -

PN160

MR NORRIS: In regard to the jurisdictional argument, yes, Commissioner. I have probably jumped way ahead with an attempt to resolve it. But by the nature of the certified agreements as they work, as I said before, the interim agreement imports the terms and conditions of the 2000 agreement. The 2000 agreement in turn in clause 8, to the parties' credit I think at the time, made an attempt to make it fairly clear as to what provisions of the award applied and what didn't apply, which is a good thing for employees to understand that.

PN161

Clause 8 relates to award based conditions and to which ones actually apply and clause 9 relates to awards, conditions excluded or varied. Now, in the list of the ones that still apply in clause 8 is a heading of Training Provisions and if we go then to clause 8 itself it explains that:

PN162

The conditions of employment, both remuneration and working arrangements and conditions are constructed using the safety net award, the Aircraft Engineers General Aviation Award 1999 as a base.

PN163

I just make the point, Commissioner, that the general aviation award applied to Jet Care previous to this certified agreement so it was obviously convenient for the parties to apply it as the safety net award. So in effect the GA award does apply across the site to everyone and it still applies as the safety net. It was also the safety net in regard to the round of AWA offers that the company made last year so it does apply to everyone on the site equally, as in our view does the interim agreement.

PN164

I will make the point here too, Commissioner, that they don't apply separately. They apply jointly to the level of inconsistency.

PN165

THE COMMISSIONER: Just coming back to the issue about the training and its relationship to the jurisdictional question, the issue of relevance for the Commission's task is whether or not the training arrangement is a provision in the agreement or whether these words in the agreement simply express the evident fact that the award provision continues to operate and that's a different matter for jurisdictional purposes.

PN166

MR NORRIS: Yes, I understand the argument, Commissioner. I think the answer to that is in the second sentence where the parties quite clearly made the award as an addendum to the agreement, as addendum A. So as an addendum to the agreement in effect the award is part of the certified agreement. Now, that doesn't necessarily mean that the award as an award is part of the certified agreement. What it means and I think it could be a reasonably implied term that what the parties in effect meant is that the words of the award apply. In other words, it was the intention of the parties at the time that where certain provisions were invoked by the certified agreement that we'd use those words in the certified agreement because they are in effect an addendum to the certified agreement and were in effect included in the certification. So it's the express intention of the parties in clause 8 where it says:

PN167

This award is an addendum to the agreement as addendum A and in effect it's incorporated into the certified agreement and applies.

PN168

Now, it also applies, the general aviation award obviously also applies as an entity on its own. However, the effect of it applying as an award in regard to Jet Care is probably a nullity in that the certified agreement because the interim certified agreement encompasses all maintenance employees and because the award is incorporated into this agreement, in effect what applies is the whole agreement because the award in effect would be blanked out by the operation of section 170LY. Section 170LY(1), a heading prevails over awards, et cetera. It says:

PN169

(1) While a certified agreement is in operation:

PN170

(a) subject to this section, it prevails over an award or order of the Commission, to the extent of any inconsistency with the award or order.

PN171

So I think it's solved the problem of any inconsistency, Commissioner, in that effectively all the terms of the award have been imported into the certified agreement. Having said that, the training provisions are specifically cited as condition of employment that apply. It's clause 26 of the general aviation award and if I could take you to that clause. For the sake of reference, Commissioner, I know technically I probably should be saying it's clause 26 of addendum A but for the sake of the jargon I'll refer to it as award clause 26. The training provisions, it says, 26.1:

PN172

Employees will be allowed time off without loss of pay for the purposes of attending examinations conducted by the employer and the ...(reads)... approved by the employer in advance.

PN173

Mr Cook was in effect required to undergo CTC training or exams in regard to converting his licence from a South African licence to an Australian licence. The company desired him to do that on the basis that they required to use his licences in Australia to work at that point in time on the regional aircraft and for him to certify for same. They then required him at a later date to sit examinations on behalf of the employer for his licensing requirements in regard to the CASA requirements for the B737, 600, 700, 800 series aircraft which is commonly known as the new generation aircraft or NG aircraft, which he subsequently did and passed.

PN174

The company did not give him the appropriate time off. They did not pay him for the purposes of attending the examination. They did not pay him in regard to the purposes of the examination and we say, Commissioner, that they haven't applied this clause correctly because the extent of our claim is that if the company requires a person to attend the examinations then the purposes - they shouldn't suffer any loss of pay for the purposes of attending. Well, we say the purposes include the preparation time that's necessary for the person to take off from work to prepare for those examinations as they required by the company.

PN175

So a dispute arises over the application of the agreement in regard to the issue of whether the company has correctly applied this clause in regard to the words for the purposes of attending examinations. There may be some ambiguity or uncertainty about those words. We're about to hear from the company in regard to that, but it's fairly common practice in this industry that people are given the appropriate paid time off and some leeway to prepare for these examinations and sit for them, being that Mr Cook was required to do that that suited the purposes of the company.

PN176

Mr Cook wasn't paid that. On one occasion I understand he was required to take annual leave to attend those examinations. That is not the appropriate way to apply this clause, and another occasion he was required to take leave without pay and that is not appropriate for the purpose of the application of this clause. In addition, Commissioner, it's only recently been brought to my attention and I apologise to both the Commission and to Jet Care for not raising this, but it appears that in regard to the training Mr Cook wasn’t paid the appropriate reimbursements for the use of his private motor vehicle to attend these examinations which is a matter that arises out of clause 28, however we have in a way grouped that under the training related issues.

PN177

Having said that, Commissioner, I did allude to that recently there's been some approaches in regard to how this part of the dispute over the application of the agreement may be settled and I won't say anything further in regard to that. You will notice too, Commissioner, in clause 26.2 there's an issue there in regard:

PN178

Any employee will not be required to attend for duty on any night shift which immediately precedes an examination.

PN179

We won't make an issue of that, Commissioner.

PN180

THE COMMISSIONER: Sorry, that late entry that you referred to, which clause does that arise under again?

PN181

MR NORRIS: 28.

PN182

THE COMMISSIONER: That's 28.4?

PN183

MR NORRIS: 28.2 is in our view the applicable clause. It was:

PN184

When an employee agrees to use their private vehicle for the employer's purposes the employee will be paid an allowance in accordance with the applicable ATO published rates per kilometre.

PN185

What we say is that if Mr Cook was required to attend the training and the exams by the employer they should have either provided the transport as per clause 26.4.1 or 26.4.2, or applied clause 28.2 and paid him the appropriate ATO rate. In regard to the periods of time that's involved in that particular issue, Commissioner, I don’t think it necessary to go into the exact detail at this stage.

PN186

THE COMMISSIONER: No, no, we don't need to.

PN187

MR NORRIS: Yes, because they are somewhat difficult to work out. Commissioner, so we say on those grounds that there is jurisdiction for the Commission to hear this matter. It's clearly a dispute that arises out of whether Mr Cook - whether the company, sorry, has applied the appropriate classifications of work given the circumstances of Mr Cook and the appropriate rates of pay for Mr Cook correctly. Having said that, Commissioner, I just clarify the application of the ALAEA. We are not asking for the Commission to make a binding declaration on Jet Care paying Mr Cook this amount of money.

PN188

We are asking the Commission to determine whether or not the company has applied those clauses correctly or not. Having said that, we suggest in our application that it would be appropriate for the Commission to make a recommendation or an order whether the Commission sees fit or not as in regard to what Mr Cook should be paid and that applies from now and into the future. In regard to any issue about back pay, breach of the agreement or anything like that, obviously that's not for this jurisdiction, obviously that's for a court of competent jurisdiction, but that is not the nature of our application.

PN189

The nature of our application is that we wish to have determined whether or not we wished to have determined whether or not the company has applied the clauses that we have nominated of the certified agreement in the appropriate manner.

PN190

THE COMMISSIONER: The submissions that you've given to me today, are they effectively, if I can say, to the extent necessary are they a modification of everything else that's been put to me in writing previously because what you’ve essentially done is rearticulate the grounds of your application today and you've essentially given me some four or five, depending how you want to break one of these issues down, four or five grounds for the application and then that's what you’ve given to me from the bar table. Are these the issues in dispute which compromise the application? That's what I do need to know and I suspect also that the other side might want to know if this is now the scope of the application to which they need to respond.

PN191

MR NORRIS: I understand.

PN192

THE COMMISSIONER: I think it's an important issue to clarify beyond all doubt.

PN193

MR NORRIS: I think in our submissions in reply there's no inconsistency in what I've said today in regard to our submissions in reply.

PN194

THE COMMISSIONER: Again if I can just repeat, I think what we need to know from you, Mr Norris, is whether the issues you've put to me today in submission constitute your application, the grounds for your application, that's what I need to identify because this will focus the Commission on trying to identify whether the jurisdictional task but it will also I presume provide some focus for the respondent to make submissions as well.

PN195

MR NORRIS: Commissioner, in our amended application or application in greater detail we request an order or direction or in the alternative a recommendation and we don't see them being as inconsistent although the wording may be poor, there being - - -

PN196

THE COMMISSIONER: I think they could be separate issues because they're issues I think that will arise that should there be matters that we then deal with the merit - - -

PN197

MR NORRIS: Yes, yes

PN198

THE COMMISSIONER: I mean I think it's at liberty for the parties to tell me how they want me to eventually deal with it when that arises.

PN199

MR NORRIS: When that arises, yes.

PN200

THE COMMISSIONER: But at the moment we're dealing with this narrow compass of identifying what is in dispute and that's all we're dealing with at the moment.

PN201

MR NORRIS: Yes.

PN202

THE COMMISSIONER: And we're trying to characterise those disputes to see whether they are indeed disputes that fall within or outside of jurisdiction.

PN203

MR NORRIS: Commissioner, I can't see any inconsistency with what I've put today in regard to our submissions in reply and I think the subsequent emails between the parties in relation to we were trying to clarify what was in dispute. The company has one view, obviously we have another and I think what we've articulated today that effectively the disputes are over whether or not the company has incorrectly or correctly applied the remuneration clauses in the certified agreement and the appropriate classification definitions in the certified agreement in part 4, clause 28 and 29, whether or not subsequent to that as a consequence the company has correctly or incorrectly applied clause 3 of the agreement and whether or not Mr Cook's classification should have been continued as the certified agreement one and the other nature of the dispute is what I've grouped together in the heading of the training issues. Is that - - -

PN204

THE COMMISSIONER: Well, I think they're generally - I mean the transcript will record that four or five grounds were identified but I think your summary touched on each of those matters that you have identified today. Sorry, go on,
Mr Norris.

PN205

MR NORRIS: Commissioner, if I might just deal briefly with the nature of the operation of the certified agreements. And it will probably pre-empt an argument that the company is going to run that there is this conception that effectively there's two separate agreements covering two separate bodies of work.

PN206

THE COMMISSIONER: Is this another dispute?

PN207

MR NORRIS: Commissioner, it goes to the manner in which - it goes to what we say is in dispute in regard to the certified agreements and the application of the certified agreement clauses, because it naturally follows that there is a concept that the two agreements exist separately. Well, effectively they don't. Effectively the interim agreement applies across the site and by its nature imports the second agreement.

PN208

MS GLYNN: Commissioner - - -

PN209

THE COMMISSIONER: Yes.

PN210

MS GLYNN: - - - I object to these submissions. We've stayed silent while Mr Norris made submissions about what is the effect of the certified agreement, but again we emphasise that in our view this goes to the substantive matters for determination before the Commission, not jurisdictional issues and we would take obvious issue with a lot of what Mr Norris has been saying in relation to how the agreement should be interpreted, but it's not relevant to - - -

PN211

THE COMMISSIONER: To get to identify the issues in dispute, we've had to climb through issues of that sort and it's hard to get there in an abstracted way. That's the difficulty that's arisen, but I think the benefit of what we've achieved to date is that we now seem to have defined the grounds for the application in terms of the alleged disputes, the matter that are in alleged dispute. Ms Glynn, what you're now saying is that we're now venturing into an area of interpretation, that it isn't germane to any particularised dispute?

PN212

MS GLYNN: Yes, Commissioner. I accept that there was a requirement for submissions to shed light on what the union says is the character of the dispute in question, but now we seem to be going into issues of how the agreement should be interpreted.

PN213

THE COMMISSIONER: Yes. I mean, look, Mr Norris, I take Ms Glynn's point that what we've attempted to do so far is identify the disputes, some of their particulars such that it would enable the parties to come to a view and ultimately allow the Commission to form a view as to how they're properly characterised for the purposes of the Act's requirements. We've now moved on to an issue of general discussion or general submission about the interpretation of the application of the agreement per se, so what I now need to know, are we venturing - are you now specifying another ground of dispute or what is the context of these submissions that are being advanced in relation to these other disputes that you've identified?

PN214

MR NORRIS: Commissioner, it was our view that it would be - in establishing whether there was actually a dispute over the application of the agreement that it would be necessary to put forward a view as to how those clauses within the agreement are enlivened and apply.

PN215

THE COMMISSIONER: I just wonder why isn't that a matter that is in effect, theoretically, let me say, if I can say it in that hesitant manner, why isn't that a matter that would be dealt with in what I've classified as ground 3A or 3B in effect? In that submission you claim that you're in dispute in relation to the fact that the agreement under which Mr Cook was working continued to operate. Now, in order to determine that dispute, if it's able to be appropriately characterised, wouldn't those issues that you're raising there be a matter dealt with along the way to resolving that dispute?

PN216

MR NORRIS: Well, they would be, Commissioner, because obviously the operation of how that works - - -

PN217

THE COMMISSIONER: Yes, contingent on that submission, isn't it?

PN218

MR NORRIS: It is. However, having said that, we thought it appropriate to raise the issue of how that works because in not raising it, we wouldn't like to be surprised by the other side in regard to that particular argument.

PN219

THE COMMISSIONER: But did you see my reasoning how it is embedded within the dispute?

PN220

MR NORRIS: Yes, there is scope to address it within that.

PN221

THE COMMISSIONER: Subject to it being appropriately found.

PN222

MR NORRIS: Commissioner, in regard to whether or not the dispute is in effect a dispute over the application of the agreement, we rely on the cases that we've cited in our outline of submissions. This in our view quite clearly a day to day bread and butter dispute over the appropriate classification first and the appropriate of pay that applies to that classification, something that's dealt with by the Commission on a day to day basis in 170LW matters and award matters and is not outside that realm. If it pleases the Commission.

PN223

THE COMMISSIONER: Well, we'd best deal - there's evidence by way of the statement of various persons that you're seeking to tender, Mr Norris?

PN224

MR NORRIS: Yes, Commissioner. Well, I am happy to go down that path now without hearing from - - -

PN225

THE COMMISSIONER: Well, Ms Glynn, do you have any preference to how you want to handle this, if we want to do it informally?

PN226

MS GLYNN: It might be preferable to have the witness - I don't intend to cross-examine either witness, so to have those witness statement - - -

PN227

THE COMMISSIONER: I think, Mr Norris, it would be your intention to bring that into evidence. Is that what you want to do?

PN228

MR NORRIS: Yes, Commissioner. It might be appropriate, too, just as a matter of procedure, because I was going to ask the question, anyway, and this might be an opportune time, you wouldn't be calling Mr Ryan today?

PN229

MS GLYNN: No, we're not intending to cross-examine either witness on the basis that we'll have the ability to lead evidence in relation to the substantive issues should our jurisdictional objection not be upheld.

PN230

THE COMMISSIONER: That's consistent with Ms Glynn's original submission earlier this morning, so what confronts you, Mr Norris, is simply that if you can hand up and I'll mark the relevant witness statements.

PN231

MR NORRIS: Commissioner, the witness statement of Thomas Leigh Cook was provided to the Commission as an attachment to the outline of submissions and we tender that statement.

PN232

THE COMMISSIONER: I will mark that A1.

PN233

MR NORRIS: And the witness statement of Christopher Lyndon Ryan is also attached to our outline of submissions and we tender that.

PN234

THE COMMISSIONER: I will mark that A2.

PN235

MR NORRIS: Commissioner, I might just for the sake of the witness statement going in on a sworn basis, I just might briefly, depending on how the Commission would like the procedures to go, because Mr Cook and Mr Ryan are here, they're quite happy to attest to the witness statements as sworn statements now, because I note that they're not signed or witnessed and Mr Cook has advised me this morning that he wishes to make some corrections, I think there's two corrections that Mr Cook wishes to make to his statement.

PN236

THE COMMISSIONER: Well, we may as well do that for purposes of formality. We will bring Mr Cook first of all into the box and we'll make those amendments and swear to the amended statement as necessary.

PN237

MR NORRIS: Thank you. I call Thomas Leigh Cook.

PN238

THE COMMISSIONER: Having been presented with this option, after I've accepted it into evidence, I will have to in effect, once they're amended, basically take them again, because I've already taken them in in their current form.

PN239

MR NORRIS: I understand. My apologies, Commissioner.

PN240

THE COMMISSIONER: Just as a matter of procedure, we'll essentially vacate those exhibit indicators I've given previously and we'll take them again once they're amended.

PN241

MR NORRIS: Thank you, Commissioner.

<THOMAS LEIGH COOK, SWORN [1.41PM]
<EXAMINATION-IN-CHIEF BY MR NORRIS

PN242

MR NORRIS: Mr Cook, will you state your full name and your residence?
---Thomas Leigh Cook.

PN243

Mr Cook, you have before you a witness statement?---That's correct.

PN244

Is there any amendments you'd like to make to that witness statement, Mr Cook?
---Yes.

PN245

THE COMMISSIONER: Sorry, you just need to speak up, Mr Cook, for the purposes of the recording?---Yes.

PN246

MR NORRIS: Could you refer to the paragraph number?---Yes, that will be on sheet two, that will be under item number 4. It states that:

PN247

On or about October 2003 -

PN248

that is actually November 2003 and then further down, that same item number 4:

PN249

I mentioned to him that I had already paid to do the preparation course for my radio, part of the category technical competency known as CTC assessment in the January/February 2004 and his words were to the effect you'll be allowed the two weeks off as leave to do it.

PN250

There was no agreement to that. The only agreement was that I would be allowed at the time to go and do the preparation.

PN251

For the purpose of the record, Mr Cook, which words do you wish to be deleted or added?---Well, I wouldn't have been allowed it as leave, because I wouldn't have accumulated enough annual leave to have done that, so the agreement was that I would be able to - I'd be allowed that time to do it, but there was no agreement on how it would happen, unpaid or paid.

PN252

Is there any need to amend those words at all, then, because it doesn't go to that?
---All right, that also - - -

PN253

THE COMMISSIONER: So you're not putting in any new words?---No, no new words, no.

**** THOMAS LEIGH COOK XN MR NORRIS
PN254

MR NORRIS: Is there any words you wish deleted?---No, that's fine.

PN255

Is there any further amendments or deletions?---Not as far as - I read through it and I didn't see any changes.

PN256

So with those changes, Mr Cook, do you swear that that's a true and correct record to the best of your recollection?---That's correct, yes, I do.

PN257

Thank you, Mr Cook.

PN258

MS GLYNN: No, cross-examination, Commissioner.

PN259

THE COMMISSIONER: Mr Norris, you're handing the signed witness statement up?

PN260

MR NORRIS: Yes.

PN261

THE COMMISSIONER: Mr Cook, do you want to sign the statement you've got there and hand it up and I'll duly mark it?

PN262

MR NORRIS: Just before you do, Mr Cook, is there any markings you've made?
---No, I haven't made any markings.

PN263

THE COMMISSIONER: We will mark that A1.

EXHIBIT #A1 STATEMENT OF THOMAS LEIGH COOK

PN264

THE COMMISSIONER: Thanks, Mr Cook, you're dismissed.

<THE WITNESS WITHDREW [1.47PM]

PN265

MR NORRIS: I call Mr Christopher Lyndon Ryan.

<CHRISTOPHER LYNDON RYAN, AFFIRMED [1.48PM]
<EXAMINATION-IN-CHIEF BY MR NORRIS

PN266

MR NORRIS: Mr Ryan, could you state your full name and address for the record?---Christopher Lyndon Ryan, (address supplied).

PN267

And, Mr Ryan, do you have a witness statement?---I do.

PN268

Is there any amendments or deletions you wish to make to that witness statement?
---No, there are not.

PN269

Mr Ryan, do you swear that that's a true and correct record to the best of your recollection?---I do.

PN270

Commissioner, we submit the witness statement of Mr Ryan.

PN271

THE COMMISSIONER: Yes, if Mr Ryan could sign the witness statement, hand it up and I'll mark it.

EXHIBIT #A2 STATEMENT OF CHRISTOPHER LYNDON RYAN

PN272

THE COMMISSIONER: Having done so, Mr Ryan is excused. Anything else, Mr Norris?

PN273

MR NORRIS: Nothing else, Commissioner.

PN274

THE COMMISSIONER: Mr Ryan, you're excused.

<THE WITNESS WITHDREW [1.49PM]

PN275

THE COMMISSIONER: Seeing that we've now been going for almost four hours, including the conciliation, we might just break for 30 minutes or would you prefer until 2.30?

PN276

MS GLYNN: 2.30 is fine, Commissioner. Can I just raise one procedural issue before we go?

PN277

THE COMMISSIONER: Yes.

PN278

MS GLYNN: Just to allow Mr Crawford to get away if he possibly can, I was going to tender his witness statement first off, but is it Mr Norris's intention to cross-examine him?

PN279

MR NORRIS: I'm not sure, Commissioner, until I hear the further submissions of Ms Glynn. If the issue is - - -

PN280

THE COMMISSIONER: Well, let's put it this way. If I can say that perhaps, bearing in mind that we're dealing with the jurisdictional question, Mr Norris, perhaps during the break until 2.30, you might just examine Mr Crawford's statement and come to a view as to what your intention is, given that we're dealing with the jurisdictional issue and if merit is involved, you'll have an
opportunity - - -

PN281

MR NORRIS: I can discuss that with Ms Glynn.

PN282

THE COMMISSIONER: Yes, and if you could let Ms Glynn know prior to the recommencement at 2.30. Ms Glynn, is that the best way to deal with it?

PN283

MS GLYNN: Yes. Thanks, Commissioner.

PN284

MR NORRIS: And, Commissioner, just in confirmation, Mr Ryan won't be required for the rest of the proceedings today?

PN285

THE COMMISSIONER: No. There's no intention to cross-examine either
Mr Ryan or Mr Cook. Anything else by way of procedure?

PN286

MS GLYNN: No, Commissioner.

PN287

THE COMMISSIONER: We're adjourned until 2.30.

<LUNCHEON ADJOURNMENT [1.51PM]
<RESUMED [2.32PM]

PN288

THE COMMISSIONER: Thanks, everyone. Has the issue of cross-examination been dealt with by the parties?

PN289

MR NORRIS: As I understand, Ms Glynn is going to call Mr Crawford probably first up, so we'll take the opportunity to cross-examine.

PN290

MS GLYNN: Thank you. Commissioner, just as a preliminary point, I might just hand up a list of authorities as well and, Commissioner, I call Glenn Crawford.

<GLENN ROBERT CRAWFORD, SWORN [2.34PM]
<EXAMINATION-IN-CHIEF BY MS GLYNN

PN291

MS GLYNN: Thank you. Mr Crawford, have you prepared a statement in these proceedings?---Yes, I have.

PN292

And do you have a copy of that in front of you?---No.

PN293

Could I hand up the statement to the witness? Is that a copy of your signature at page 6 of the statement?---Yes, it is.

PN294

And is the statement a true and correct recollection of the events contained in that statement to the best of your recollection?---Yes, it is.

PN295

I would seek to tender that statement, Commissioner.

EXHIBIT #R1 STATEMENT OF GLENN ROBERT CRAWFORD

PN296

MS GLYNN: No further questions, Commissioner.

PN297

MR NORRIS: Commissioner, we have objections to certain parts of
Mr Crawford's statement being admitted. Commissioner, we object to clause 23 and 24 on the grounds of relevance. What I say, Commissioner, is that these paragraphs allude to AWA offers which have nothing to do with this matter.

PN298

THE COMMISSIONER: Okay, look, the issue of relevance is a matter of weight for the Commission and falls into the same category as the determination made at the beginning of these proceedings.

PN299

MR NORRIS: Well, for the sake of expediency, Commissioner, rather than going through each clause thereafter - - -

PN300

THE COMMISSIONER: You may as well for the purposes of transparency just take me just quickly to those clauses which you do have difficulty with. You've cited 23 and 24.

PN301

MR NORRIS: Well, 24, Commissioner, we say that it's irrelevant as to on what basis?

PN302

THE COMMISSIONER: That's okay. Take me to the next ones.

PN303

MR NORRIS: It's irrelevant in 25 that the ALAEA is in effect appointed as a bargaining agent. 26 alludes to correspondence between the parties in regard to the making of an AWA and is irrelevant in this matter. 27 on the same grounds, that correspondence between the parties - the ALAEA as the bargaining agent and the employer in regard to AWA negotiations.

**** GLENN ROBERT CRAWFORD XN MS GLYNN
PN304

Sorry, 27 we'd allow in on the basis that it's relevant to this matter, 28 we'd allow in on the basis of its relevance, 29 we say is irrelevant to this matter in that it relates to AWA bargaining and the nature of discussions with the bargaining agent. 30 on the same grounds, that it relates to discussions between the employer and the bargaining agent. 31 on the same grounds. 32 on the same grounds, it relates to bargaining of an AWA. 33, sorry, Commissioner, we'd allow in. 34 we say is a statement about without prejudice negotiations in regard to settling this matter, shouldn't be allowed. 36, we say that LS4, that statement should not be allowed in that it relates to without prejudice discussions with the parties to settle this matter and clause 37 we say shouldn't be allowed as it relates to without prejudice discussions between the parties to settle this matter.

PN305

THE COMMISSIONER: Thanks, Mr Norris.

PN306

MR NORRIS: Commissioner, has the document been marked?

PN307

THE COMMISSIONER: Yes, it's R1.

PN308

MR NORRIS: I take it it's our go for cross-examination.

<CROSS-EXAMINATION BY MR NORRIS [2.41PM]

PN309

MR NORRIS: Mr Crawford, you say in your statement that you've been employed - you say that you've been employed prior to becoming the interim general manager as the southern regional maintenance manager for Jet Care. Now, prior to that employment, what company did you work for?---Ansett Airlines.

PN310

And in what capacity did you work for Ansett?---Various roles from apprentice through to licensed aircraft engineer, eventually into management and final role was line operations manager.

PN311

And what licences do you hold or did you hold then?---Boeing aircraft 73, 72, airbus aircraft A320, Fokker F28, F27, F27 mark 50, CSM56 engines, a range.

PN312

Now, at the time you worked as a LAME in Ansett, you were covered by the Ansett certified agreement?---Yes.

PN313

MS GLYNN: Commissioner, I object to this question. This isn't relevant to the question to be determined by the Commission which is what is the dispute before the Commission?

**** GLENN ROBERT CRAWFORD XXN MR NORRIS
PN314

THE COMMISSIONER: We have a witness statement and we have a jurisdictional question, so I'm not too sure where the Ansett issue is taking us,
Mr Norris.

PN315

MR NORRIS: Commissioner, it goes to the manner in which the agreements in the industry are applied to LAMEs. Now, it goes to then the manner in which the company applies the certified agreement within Jet Care and it goes to the principle in which it's applied in regard to skills and competence which is a fundamental issue in regard to the jurisdictional argument as to whether there is in fact a dispute over classification or not.

PN316

THE COMMISSIONER: Ms Glynn.

PN317

MS GLYNN: Commissioner, we'd submit it's not a fundamental issue to the jurisdictional argument. This is another example of the evidence going to the merits of the case which is an interpretation of the agreement and its clauses, rather than whether there's a dispute over the application of the agreement. It's simply not relevant how Ansett Airlines applies its agreements in relation to its LAMEs.

PN318

THE COMMISSIONER: Mr Norris, the issue is a substantive one and that is that the jurisdictional issue turns on the identification of the dispute and its characterisation and that's the focus of the task that's before all of us and I do fear that this is something of an excursion that may have relevance in some other context, but not necessarily in this particular context. Indeed, some of it might be the basis of submission. I'm not persuaded that it's the basis for cross-examination at this point. It may at some other point, but possibly not at this point, so if you can, I'd prefer if you stuck to the issue of identification of the issues in dispute and their appropriate characterisation, because that's the jurisdictional task.

PN319

MR NORRIS: Commissioner, if I may with respect say that it is cross-examination and obviously the Commissioner can place the appropriate weight on whatever questions or responses again. My line of questioning, Commissioner, is in relation to and gets to the manner in which the certified agreement classifications and definitions are applied and for what reason and I'm aware that Mr Crawford has industry experience and knowledge in the manner of the custom and practice as to the way these things are applied. Now, the dispute as we see it, Commissioner, arises out of the company incorrectly applying these clauses and Mr Crawford's evidence may well go to defining the dispute in regard to whether the clause has been applied correctly or not.

**** GLENN ROBERT CRAWFORD XXN MR NORRIS
PN320

THE COMMISSIONER: Well, you've given me the amended grounds for the application comprising of some five discrete, largely discrete alleged disputes which you claim can be appropriately characterised as disputes falling within the ambit of section 170LW. Are you taking Mr Crawford to those particular discrete disputes?

PN321

MR NORRIS: The line of questioning I was pursuing, Commissioner, was to go towards I think it might be item 1 which was the issue of the appropriate classification.

PN322

THE COMMISSIONER: This is about the context of the application of the agreement during the period of the secondment, the so called secondment.

PN323

MR NORRIS: If you could call it that.

PN324

THE COMMISSIONER: Yes, I know what you mean.

PN325

MR NORRIS: Yes.

PN326

THE COMMISSIONER: So that's what we're going to.

PN327

MR NORRIS: That's what I was getting to.

PN328

THE COMMISSIONER: So this is a question that's being asked in the context of how Mr Cook was remunerated during the period referred to by the company as the secondment?

PN329

MR NORRIS: That's correct.

PN330

THE COMMISSIONER: All right, Ms Glynn, that seems to have focused it somewhat.

PN331

MS GLYNN: Commissioner, we would still object on the basis that in these proceedings, with respect, it's not for the Commission to determine whether the clauses in the agreement have been correctly applied or not or whether Mr Cook has been correctly classified or not. Mr Norris will get his opportunity potentially later on if he needs to cross-examine about those issues. It's only in relation to whether there's actually a dispute between the parties about those clauses and I can't see how this line of questioning assists the Commission in that regard.

**** GLENN ROBERT CRAWFORD XXN MR NORRIS
PN332

THE COMMISSIONER: Well, it depends on how disciplined the line of questioning is. If the line of questioning is a line of questioning that focuses on the period during which Mr Cook was on secondment, as it's referred to and how during that period he was paid, then why isn't that a legitimate line of questioning for identifying any prospective dispute?

PN333

MS GLYNN: Because, Commissioner, that goes to whether - rather than whether there's a dispute between the parties about the application of that clause, it actually goes to the merits of whether the clause has been applied properly, not whether there's a dispute between the parties about that issue.

PN334

THE COMMISSIONER: Well, that is - it's a bit hard to distinguish, to neatly separate the two. I mean, what we're trying to identify is whether there is a dispute over those - whether there is a dispute over that particular issue. We're not trying to resolve it at this point. We're simply trying to identify whether there is a dispute over that particular issue. That's one step back from where you're suggesting we're going to.

PN335

MS GLYNN: I appreciate it's a fine distinction, Commissioner.

PN336

THE COMMISSIONER: Yes, because you'll end up overlapping to some degree, but I think a line of questioning that does go to the period of secondment and attempts to elucidate whether or not there is an issue in dispute is an appropriate line of questioning. Whether or not we're going to drift into a merits consideration of how that matter might be resolved is a question of discipline, but I think the line of questioning that goes to the period of secondment and attempts to identify where the dispute is during that period is appropriate, but, Mr Norris, I'll have to ask you to be aware of drifting into the merits consideration, given the narrow compass of the task that's before us.

PN337

MR NORRIS: Thank you, Commissioner. I'll do my best and I'm sure Ms Glynn will pull me up at the appropriate time.

PN338

Mr Crawford, in your experience in the industry, when a LAME achieves a licence, they are paid for that licence?---At my time at Ansett Airlines, yes.

PN339

And in your experience with Jet Care prior to you becoming the general manager, when Jet Care put someone on a course and they became licensed, they were paid according to the certified agreement?---If a position was available, yes, they would have been.

**** GLENN ROBERT CRAWFORD XXN MR NORRIS
PN340

And has there been an occasion when there wasn't a position available?---Not in the last four years due to the rapid growth of the business.

PN341

So this is one of the first occasions where it's arisen?---No.

PN342

Well, what other dispute have you had in regard to someone not being appointed to those positions?---Sorry, I may have misunderstood. It's not the first time that we've had a 737 NG rated LAME being paid as an AME. It's not the first time. It is the first time we've had a dispute about it, yes.

PN343

That's correct?---Sorry, yes.

PN344

Now, in regard to the appropriate classifications in the certified agreement, it's been the practice of the parties in applying the definitions within the certified agreement to apply the appropriate rates of pay in those definitions in regard to 600, 700, 800 aircraft as if they replaced 300, 400 aircraft?---It was an additional payment for the NG rating on the agreement.

PN345

Yes, but the base payment, the base payment apart from the 800 allowance?---It's not my understanding. My understanding was that there was an additional payment, I think 74.40 I believe was for NG rated engineers and they were paid that - - -

PN346

What was their base rate of pay?---I don't know what their base rate of pay was off the top of my head, unfortunately.

PN347

Was the base rate of pay paid in accordance - - -?---In accordance with that certified agreement.

PN348

Certified agreement?---Yes.

PN349

So as the replacement of the 300, 400 aircraft occurred, within Virgin, the base rate of pay was assumed to be for that type of aircraft, the next type of aircraft?
---Yes, that's correct.

PN350

In regard to - once a LAME is given a particular licence, is it true that from time to time the LAME will work as an AME?---Yes.

PN351

And is it true that from time to time, two LAMEs working together on an aircraft, only one will certify and therefore the other one is working as an AME?---I'll say yes.

**** GLENN ROBERT CRAWFORD XXN MR NORRIS
PN352

THE COMMISSIONER: Sorry, did you say I wouldn't say yes?---No. Yes.

PN353

You would say yes?---I would say yes.

PN354

MR NORRIS: Now, the liability of both of those LAMEs in regard to their licence is in effect the same, though, isn't it?---I would say no in that the person doing the certification has the ultimate responsibility for that work being conducted in that manner and done to air-worthy standard and so the person doing the certification takes on that responsibility, ultimate responsibility.

PN355

And the LAME working with them, if there was a case of ..... for instance, would still stand to lose their licence as a result of that action?---I don't know whether that's been tested. I wouldn't say, I couldn't say.

PN356

Well, on your understanding?---My understanding, no. The LAME doing the certification would be the responsible person in that situation and take on I guess that liability, for want of a better term, with regards to the work being conducted in that manner.

PN357

From time to time, the Virgin Blue type licensed LAMEs, NG LAMEs, they go and do work in the hangar, don't they?---Yes, occasionally, yes.

PN358

And from time to time over the period of years, depending on the work load, they would be deployed as the company sees fit?---Yes.

PN359

So if there's more work than the urgency in regard to the regional airlines' work, then those NG LAMEs would be deployed on that work?---If that was the priority for the business, yes.

PN360

Now, when they do that work, do they retain their licence payments?---They retain the payments of the agreement they've been employed under.

PN361

So they retain, in the case of the certified agreement, when they did work under the certified agreement, before the AWA, they retained the certified agreement rate?---If that's what they were employed under, yes.

PN362

Why is that?---Because that's what they were employed under. That was their initial agreement they were engaged with.

**** GLENN ROBERT CRAWFORD XXN MR NORRIS
PN363

Well, is it because clause 3 of that agreement says that?---Possibly, yes.

PN364

And in your statement in clause 7 - sorry, I'll take you to clause 8 first, you say in the last sentence:

PN365

The 2000 agreement was later extended by Commissioner Richards on
10 March 2003 to expire on 31 March 2003.

PN366

Now, are you meaning to say there that the agreement ceases or are you meaning to say that it would be past its nominal expiry date?---Yes, the latter, past its nominal expiry date.

PN367

Nominal expiry date?---Yes.

PN368

Now, you say in 7 that:

PN369

Since 2002, Jet Care has unsuccessfully been attempting to negotiate a certified agreement.

PN370

And then later on in your statement you include a letter from the ALAEA in regard to continuing the certified agreement negotiations. Now, that letter that you've attached to this statement being 29 July 2005, it's GC14, it's the case that this letter was in reply to a letter from yourself?---GC14, is it?

PN371

GC14?---Yes, you replied.

PN372

Is it the case that myself, G Norris, senior industrial officer, replied to correspondence from yourself which stated in effect that Jet Care did not wish to negotiate a new certified agreement?---Some time had elapsed from that first period, 2002 and, yes, I believe there's some correspondence in here from myself to you in regards to - - -

PN373

I don't see that included. Maybe I've missed it?---- - - us not wishing to proceed any further with a certified agreement, as we had the majority of our staff on AWAs in the business.

PN374

I see, yes?---We had a content workforce and there was really no need to proceed.

PN375

Now, in 9, your clause 9, you say that:

**** GLENN ROBERT CRAWFORD XXN MR NORRIS
PN376

There are two main areas of work within Jet Care covered by separate industrial instruments.

PN377

That's not the case, is it?---Well, that was my understanding until today.

PN378

What's your understanding now?---It still stands the same, that there are two agreements, the GA award which we employ our regional staff under, a certified agreement or there was a certified agreement that covered the Virgin Blue staff at the time and there were areas of the certified agreement which I guess as you said, the safety net, there was a safety net back to the GA agreement or GA award.

PN379

So in effect that's your understanding. It's not really a statement of fact?
---That's my understanding.

PN380

And I put to you that if it was shown to you that that understanding was in effect erroneous, would you take the appropriate steps to correct your erroneous understanding?

PN381

THE COMMISSIONER: That's an extremely hypothetical or other type of question. You're asking him to assume a particular situation, then indicate his course of conduct as a consequence of it.

PN382

MR NORRIS: Commissioner, if I may say that it goes to my next question, which is that does Mr Crawford believe that they've applied the appropriate clauses of the certified agreement correctly? Now, if it was so determined then that that wasn't the case - - -

PN383

THE COMMISSIONER: I think you're getting towards the end of, what you see as the end of the exercise about relief and so forth on merit. I mean, I don't think you can ask Mr Crawford to assume a particular situation, then indicate what his conduct would be. If you're seeing him to clarify what his conduct was in relation to how he applied, how he dealt with Mr Cook during the secondment period, that's well and good, but that line of questioning is straying somewhat.

PN384

MR NORRIS: Mr Crawford, in 11 you say that - you give the terminology general aviation work on the smaller regional airlines. When that work is done, and you've just given evidence that it's done by any type of employee there, whether they're licensed on the Virgin Blue and paid under the Virgin Blue banner or not, is that work directly billed back to the smaller regional airlines on the same rates as the Virgin Blue contract rates?---No.

**** GLENN ROBERT CRAWFORD XXN MR NORRIS
PN385

Well, what's the difference?---Its commercial-in-confidence what we charge each and we have various rates for different customers.

PN386

THE COMMISSIONER: I'm not sure Mr Norris wanted to know what the specific rate was did you?

PN387

MR NORRIS: I wanted to know what the difference is in the charging rates. Is it a different charging structure, is it a different method of charging?---Yes.

PN388

And what's the difference?---Well, lots of customers have different varying needs. It goes against the contract we have with individual customers.

PN389

Well Mr Crawford in 12 you make a statement that the difference in the amount that can be charged for this work is one of the reasons why there are separate industrial instruments. I'm trying to establish why that is the case. Can you tell us why that is the case?---Because it's a competitive market, far more competitive in the regional area of the business.

PN390

Well, what's the difference?---It's far more competitive.

PN391

Comprising?---I don't have all the contracts in front of me but they are all varying to different degrees.

PN392

Well, is there a difference in the manner in which you charge these things back?
---Yes. Some are fixed fees, some are fee for service, some are cost plus. Even in the Virgin Blue agreement itself there is different charging structures for different areas of the business.

PN393

And they all relate to cost numbers do they, you have some sort of system of tracking that?---Yes.

PN394

So when the engineers, LAMEs go over work on the regional aircraft do you charge back the regional aircraft those rates?---No.

PN395

Mr Crawford, were you present at the hearing in regard to the recommendations by consent?---No.

PN396

Were you aware that as a result of the, or were you informed that as a result of the agreed position of the parties, which is stated here in your statement, that there was agreement between the parties for Jet Care to continue to pay the increases on recommendation by consent?

**** GLENN ROBERT CRAWFORD XXN MR NORRIS
PN397

MS GLYNN: I object, Commissioner. I object on the basis that it's an unfair question and it doesn't properly state what was the agreement reached between the parties as detailed on the transcript. That may have been the union's understanding but it was not the agreement between the parties which was the outcome of that hearing.

PN398

MR NORRIS: Well, we dispute that.

PN399

MS GLYNN: Well, I don't say whether it's incorrect or not, but I do submit that it wasn't the agreement between the parties arising out of that hearing.

PN400

MR NORRIS: Mr Crawford, isn't a fact that after that hearing the recommendation by consent rises would still apply?---Yes.

PN401

Mr Crawford, if you weren't at that hearing, who got you to put in a statement clause 14?---It's more a statement of fact of what happened.

PN402

Well, you weren't there so how did you come to putting it in?---There was a hearing and it was my belief as to the outcome.

PN403

Were you told to put that in?---Told to put that in, no, we put it in.

PN404

Now, Mr Crawford, from time to time when you employ people into Jet Care you initially employ them as AMEs, is that correct?---Some if they're AMEs, yes.

PN405

And when they get their licence, ENG licence, you put them on a course and they get their ENG licence, you then assume, or on the understanding that they're covered by the certified agreement rates and they get paid in accordance with the certified agreement rates?---It depends what part of the business they've been employed on.

PN406

Well, in past practice Mr Crawford, you've already given evidence that when people have got their ENG licence it has been normally the custom and practice that they would get paid that as because in past custom and practice, in your words, there's been vacancies there?---That's right.

PN407

So when people are effectively deployed to line maintenance as such and they have their ENG licence they are paid in accordance with the certified agreement. Is their employment changed at that point in time?---If a shift across form one to the other, yes, there would be a new agreement, or in our case now it's a new AWA or whichever instrument they wish to be employed under.

**** GLENN ROBERT CRAWFORD XXN MR NORRIS
PN408

So their employment is varied at that point in time?---Yes.

PN409

Thank you. The work in the hangar that Mr Cook would normally perform on the regional aircraft is that continually available or does it come in fits and starts?---It is spasmodic.

PN410

Spasmodic?---Yes.

PN411

And the work in the hangar in regard to Virgin Blue aircraft that's available on a daily basis and a nightly basis isn't it?---Nightly, not daily in the hangar, no. Virgin Blue work aircraft work in the hangar, it's pretty spasmodic as well.

PN412

Well, aren't there regular checks that are carried out on those aircraft every night?
---Every night, yes.

PN413

Yes, in the hangar?---Yes.

PN414

And you're aware of the authorisation Mr Cook proposed and the AC19 form that Mr Cook holds in regard to - - - ?---Yes, the company authority, yes.

PN415

The company authority?---Yes.

PN416

Now, that authority authorises Mr Cook to sign off and it specifically relates to Virgin Blue components and parts?---Wholly ever authorities for any part of a business whether they be wheels, whether they be work for any customer they still need that company authority to perform that work.

PN417

But that specific authority that Mr Cook holds is only related to Virgin Blue work isn't it?---No. He could it for other work out of that area of the business because it's a company approval, it's not a Virgin Blue approval.

PN418

What, for Boeing 737 parts?---Yes. It could be for any customer.

PN419

But do you have any other customers that have got Boeing 737 parts?---Yes, Air Work.

PN420

And what sort of aircraft are they?---737.

PN421

What type?---737 300.

**** GLENN ROBERT CRAWFORD XXN MR NORRIS
PN422

Not 737 NG?---No.

PN423

So to do that componentry work Mr Cook would have to follow the maintenance manual?---Component overhaul manual possibly.

PN424

Under the Jet Care system of maintenance?---Yes.

PN425

For that particular type of aircraft?---Yes.

PN426

Because the maintenance manual relates wholly to that particular type of aircraft doesn't it?---Component overhaul manual, yes, as opposed to the maintenance manual.

PN427

Sorry, I stand corrected. Now, while we object to the attachments being - well, again I take, Commissioner, that they are leading on the basis of relevance or irrelevance.

PN428

Can I take you to, Mr Crawford, can I take you to - I don't know whether they're in your statement or Mr Smith's statement. They're in Mr Smith's statement so I'll make submissions on those. The discussions that you had with the ALAEA in regard to settling this matter, how many options were canvassed in regard to settling this matter?---The one that I recall, the main one was that you'd go away and reconsider the offer made to Thomas Cook, and my understanding was that you would come back with a yeah or nay.

PN429

And you're aware that - and I think it's in Mr Lachlan Smith's statement - that you're aware of the reply which raised a number of questions in regard to payment?---Yes, I have seen that.

PN430

And there were suggestions made on how to settle that matter in regard to those without prejudice documents?---I can't recall. I'd have to review that.

PN431

Did the ALAEA make suggestions on how to settle the matter in those documents?---I think all that came to mind was offer Thomas Cook an AWA under the Virgin Blue arrangements.

PN432

Was it not the case that the ALAEA requested that Mr Cook be made an offer in line with the certified agreement?---I can't recall that. The only one I recall is making him an AWA offer for Virgin Blue.

**** GLENN ROBERT CRAWFORD XXN MR NORRIS
PN433

In those without prejudice discussions?---That's my recall.

PN434

Thank you. I have no further questions, Commissioner.

PN435

MS GLYNN: No re-examination.

PN436

THE COMMISSIONER: Thanks witness, you can stand down.

<THE WITNESS WITHDREW [3.16PM]

PN437

MS GLYNN: Commissioner, I call Lachlan Smith into the witness box.

<LACHLAN HOWARD SMITH, SWORN [3.16PM]
<EXAMINATION-IN-CHIEF BY MS GLYNN

PN438

MS GLYNN: Mr Smith, do you have a copy of your witness statement?---I do.

PN439

And if I take you to page 3 of that witness statement, is that your
signature?---Yes.

PN440

And is this the witness statement that you've prepared in this matter?---It is.

PN441

And is the contents of that witness statement to the best of your knowledge true and correct?---It is.

PN442

I seek to tender that statement.

EXHIBIT #R2 STATEMENT OF LACHLAN SMITH

PN443

MS GLYNN: No further questions, Commissioner.

PN444

THE COMMISSIONER: Mr Norris?

PN445

MR NORRIS: Commissioner, for the sake of the record we object to - - -

PN446

THE COMMISSIONER: All paragraphs making reference to AWAs.

PN447

MR NORRIS: That's correct, Commissioner. Just to short circuit for expediency we object to 7 through to, I suppose 18, on two grounds. One, on the basis of relevance in regard to those clauses that relate to the attempted settlement of this matter, and also those clauses that relate to separate negotiations that have nothing to do with this matter which is the offering and negotiation of an AWA. And I note that the paragraphs are similar to, in a way similar to Mr Crawford's.

<CROSS-EXAMINATION BY MR NORRIS [3.19PM]

PN448

MR NORRIS: Mr Smith, after the conciliation conference on 19 August would you agree that both parties attempted to settle this matter?---Initially after the conciliation I think the efforts were to identify whether there was as particular avenue that might settle the matter but that didn't result in a settlement.

PN449

And the avenue that the parties embarked upon, now that it's in here, the avenues the parties embarked upon was initially to try and assess the quality of work that Mr Cook did?---It was initially a question of quality. It was also the nature of the work as I understand it as I recall, and that was reflected in the response that went to you on the 19th I think.

**** LACHLAN HOWARD SMITH XXN MR NORRIS
PN450

And where the settlement and negotiations basically fell down was that the ALAEA and the company fundamentally disagreed on the nature of the work and what classification it should be in?---Well, it went to an issue of the work being under the Virgin Blue certified agreement or under the General Aviation Award.

PN451

So it went to an issue of what his appropriate classification was?---It went to an issue of coverage as I recall, whether that work was appropriately covered by the Virgin Blue agreement or - - -

PN452

Weren't the discussion about what the appropriate rate of pay was?---Sorry?

PN453

Weren't the discussions about what the appropriate rate of pay was?---Not that I recall. The discussion as I recall it was about which agreement - or, sorry, whether the agreement or the award applied to the work that was being performed.

PN454

Mr Cook in LS4, he enclosed an email from myself to yourself in regard to trying to settle this matter. Have you got that?---That's correct.

PN455

Yes. And points through 1 to 2, would you agree that the ALAEAs claim was in relation to an appropriate pay and an appropriate classification?---If I can just take a minute to read it again?---It does go to issues of payment but those issues of payment fall from what was the appropriate instrument covering him at the time the work was performed as I read it.

PN456

Well, or vice versa?---Well, I think the one could only flow from the other. It can't flow back the other way.

PN457

So you'd say that the issue of whether a person was appropriately classified or not, one of the initial questions you'd have to determine along the way of doing that would be to determine what agreed he was covered by?---Yes.

PN458

I take you to (b) in that, 1(b) in that. Our claim there was that he commenced work unsupervised in the Virgin Blue cockpit door modifications for 11 aircraft and should be paid under the EBA and an AME. Do you disagree with that?---To be honest in terms of the detail of whether cockpit door work falls one way or the other I took advice on that from Jet Care.

PN459

But the response is, I mean, you fundamentally disagree with it don't you?---Yes.

**** LACHLAN HOWARD SMITH XXN MR NORRIS
PN460

And in (c) he worked permanent night shift on Virgin Blue aircraft and was made as an AME under the EBA agreed rate but was qualified as a LAME 3 under the GA award. That's more of a statement of fact from the ALAEAs point of view. Do you disagree with that?---No, I think that's factually correct.

PN461

In (d) on or about 18 February 2005 he gained his B737 NG licence avionics and should have been paid as a LAME EI&R under the EBA. Do you disagree with that?---I disagree with that on the basis that he was employed as an AME or he was engaged as an AME at that stage on his secondment to the Virgin Blue work. He wasn't engaged as a LAME.

PN462

So the disagreement arises from the fact that the ALAEA says that he should be classified under the EBA on a particular pay rate as a LAME EI&R, and you say that he shouldn't be, that's the disagreement isn't it?---In relation to that aspect of it, yes.

PN463

Down the bottom paragraph it says:

PN464

In addition whether or not the correct pay rate should have been EBA rates or not he is entitled under the award and EBA to have paid time off of approximately two weeks for the time he spent doing his CDC training and CASA exams which was not paid.

PN465

Do you disagree with that?---Yes, I think there's been a difference of interpretation of the award provision as it applies to paid time off for preparatory work, and we've been working our way through those issues separate from the proceedings if you like in relation to jurisdiction.

PN466

So that's on the basis to determine whether it's been correctly applied or not?---It's on the basis of what?

PN467

Well, I mean, you're working through that, that's on the basis to determine whether it's been correctly applied or not, those particular clauses?---Well, we've been working through to establish exactly what we did pay and what time off was given, yes.

PN468

Yes. In other words whether what you've paid has been correctly paid or not?
---Yes.

**** LACHLAN HOWARD SMITH XXN MR NORRIS
PN469

Now, you would have heard Mr Crawford's evidence in regard to the statement that he made that he was under the impression that the ALAEA had suggested that the appropriate settlement of this matter was that Mr Cook be paid or be given an appropriate AWA, you heard that?---Yes.

PN470

Now, the last paragraph of this email here, does that say that? This is in LS4. Where is it mentioned that he be paid an AWA or be given an AWA?---It certainly doesn't preclude that. A contract LAME had a rate at least equivalent to the EBA, to me would point to the AWA rate.

PN471

So are you saying - well, I'll put it to you this way. Did you take that to mean that it's an open offer in regard to what the appropriate instrument might be?---Well, I took it to be claiming that there should be a rate paid in excess of the certified agreement, and the only available instrument that we have for doing that is an AWA, that's how I interpret it.

PN472

So it was an attempt to settle this matter?---Well, again I interpret it as, you know, a further statement of - that ALAEAs position being that the appropriate settlement was to have him on an AWA rate that reflected the view that he was a Virgin Blue LAME.

PN473

Now, in LS5 you replied to that email of the ALAEA, and in that you say in the last paragraph, you say that:

PN474

Your proposal of a Virgin Blue contract equivalent to LAME AWA for Mr Cook is not acceptable.

PN475

But where was the proposal for the AWA?---Well, it's consistent with what I just said my interpretation of your paragraph was, I responded to it on that basis.

PN476

So in your head you wanted to construe our offer as being one for an AWA?---I suppose it was in my head, but yes, that's the way I read the settlement offer that was in your previous email.

PN477

And do you recall that I responded in the email and that email is LS6?---Yes.

PN478

That email says:

PN479

We do not agree with your assertions and will request the AIOC to re-issue directions.

**** LACHLAN HOWARD SMITH XXN MR NORRIS
PN480

That pretty well encapsulates the fact that we don't agree on those things doesn't it, or in the previous emails?---Yes, I suppose it does, yes.

PN481

And I think the next one says:

PN482

I did not propose an EBA equivalent AWA. I proposed on a without prejudice basis that Mr Cook should be appointed as a LAME under the EBA.

PN483

?---Well, that's what your email says, yes.

PN484

Yes. So consistent with the previous email there was no mention of making a settlement of this under an AWA?---Well, I don't detract, or retract my previous interpretation of what your original email advice was.

PN485

So what you're saying is that you - - - ?---What I'm saying is I interpreted it a particular way and you corrected me. I'm happy for that.

PN486

What you're saying is that in effect the interpretation you place on these words is that you have an impression that the only way to solve this problem is through an AWA?---No. I had an impression that your suggestion for resolving it involved an AWA.

PN487

Which it doesn't, does it?---Well, no. You corrected me in that correspondence of the 28th of the 10th.

PN488

And so whatever instrument we may arrive at or may have arrived at, at that point in time to settle this matter, is irrelevant isn't it?---Irrelevant to what?

PN489

Well, it's irrelevant on the basis that, I put it to you, is it not irrelevant on the basis that we could have settled this matter by using any instrument couldn't we if it was acceptable to the parties? We could have signed a deed of release for instance?---If it was acceptable to the parties we could have resolved the matter by doing anything, yes.

PN490

Thank you?---Whether it would have been acceptable to the parties is another matter.

PN491

A different matter. I have no further questions, Commissioner.

**** LACHLAN HOWARD SMITH XXN MR NORRIS
PN492

MS GLYNN: I have got one question, Commissioner.

<RE-EXAMINATION BY MR GLYNN [3.32PM]

PN493

MS GLYNN: Mr Smith, where did your understanding come from that it was ALAEAs view that this matter would be settled by the offering of a Virgin Blue AWA on a LAME rate?---Well, there were - well, I suppose two instances I suppose. One was my interpretation of that email as we've just discussed, the other was the meeting I think on 10 October that Mr Crawford and I had with Mr Norris, again at which we thought the upshot of that having gone through the AWA and the salary attached to it in a little bit of detail, that Mr Norris was going away to reconsider his position on that AWA.

PN494

No further questions, Commissioner.

PN495

THE COMMISSIONER: Thank you. The witness can stand down.

<THE WITNESS WITHDREW [3.33PM]

PN496

THE COMMISSIONER: Ms Glynn?

PN497

MS GLYNN: Thank you, Commissioner. Just for the Commission's convenience I anticipate probably being about 40 minutes. Commissioner, the Commission's arbitral power under section 170LW, which is what we're dealing with today, is limited to settling disputes over the application of an agreement, and it's submitted by Jet Care that the current dispute is not one over the application of the 2003 Virgin Blue agreement. That's the interim agreement, Commissioner, but I'll call it the 2003 Virgin Blue agreement. And therefore the Commission has no jurisdiction to determine this matter.

PN498

We say that the current dispute is not one over the application of the 2003 Virgin Blue agreement on three grounds. Firstly, that it's a dispute over whether or not the 2003 Virgin Blue agreement applies to Mr Cook and Jet Care in respect of Mr Cook, and a dispute that's primarily over whether or not a certified agreement applies to a particular employee or an employer in respect of a particular employee is not a dispute over the application of the agreement.

PN499

Now, Mr Norris has referred to a couple of clauses from the agreement which he says lays the basis for this dispute being about the application of the agreement. I'll go into more detail in relation to that, Commissioner, but we say that really he has picked the most obvious clauses in the agreement which would affect an employee such as remuneration and classification and used those as examples. But fundamentally the basis of this dispute is whether the Virgin Blue agreement applies to Mr Cook or not. And it's not a dispute over the operation or interpretation of those clauses.

PN500

To have a dispute over whether the agreement applies or not obviously the Commission has to look at the terms of the agreement itself. So the simple fact that a dispute involves a consideration of, for example, the scope clause or the classification clause in an agreement does not mean that it's not a dispute over whether the agreement actually applies or not, and therefore it's not a dispute within section 170LW.

PN501

We have got to look at something to determine whether the agreement applies or not. But simply by looking at those clauses doesn't mean that somehow it becomes a dispute over the operation of those clauses rather than whether the award applies.

PN502

THE COMMISSIONER: Can I just stop you there, Ms Glynn, can I just stop you and ask you, the amended ground for the application that Mr Norris made in essence in his initial submissions today established that it is his contention there are some four or five alleged loosely related disputes between itself and the company. And I'm wondering at what level are you actually approaching the characterisation of the dispute from? Is it from each of these particulars or is it at a broader level than that?

PN503

For example, the first dispute that Mr Norris alleged was in evidence was a dispute over the appropriate rate to be paid to Mr Cook whilst under what the company called the secondment upon such time as he became a licensed AME. And I'm wondering - you see, that was what Mr Norris said was the first ground for the application. Now, I'm just wondering at what level are you - are you focusing on these particular allegations of dispute?

PN504

MS GLYNN: I will make mention of the particular clauses which Mr Norris has gone to in the agreement to demonstrate that it's not a dispute over the operation of those clauses. But, Commissioner, I intended to characterise the nature of the dispute by reference to what has previously been submitted in the applications, submissions and also the material going between the parties. But I won't necessarily cast it in terms of those - I think we're up to five grounds now - that Mr Norris has articulated today.

PN505

I mean, the union's position it seems to us has changed on four different occasions now, so it's a somewhat challenging task to address every issue they've raised because their arguments are a moving feast. So we will address, Commissioner, at a broader level probably but will go to the particular clauses in the agreement.

PN506

THE COMMISSIONER: Yes. In any event those submissions which you intend may have application in relation to - well, in any event they may have application to the particulars in any event. But go ahead.

PN507

MS GLYNN: Commissioner, so we would say that this is not a dispute over the application of the agreement because it's a dispute over whether or not the certified agreement applies, and that can't form the basis of a dispute over the application of the agreement. We also submit that properly characterised this is not a dispute over the application of the agreement but rather a dispute over the terms of an offer of an AWA. And we'd also submit, Commissioner, that what the Commission has been asked to do is to exercise impermissible judicial power rather than arbitral power, and that effectively what the union is asking for is an interpretation of the certified agreement which is a declaration, a bare declaration of legal rights, which the Commission cannot do under section 170LW.

PN508

In terms of the issue in relation to it being a dispute over terms of an offer in an AWA, I intend to provide some context to the dispute and why that can't be a dispute over the application of the agreement in the same way that Mr Norris has provided context to why he says his issues are disputes over the application of particular clauses. Firstly, Commissioner, going to section 170LW which, as I've said, empowers the Commission to settle disputes over the application of the agreement, I turn firstly to the decision of CFMEU v McMahon Contractors. And I take it from the submissions which Mr Norris has made that he concedes that this is the current law on the point, and therefore in considering this issue we're looking at it must be that the dispute is over the actual application of the agreement and can't be any wider than that. It can't be any wider than the terms of section 170LW.

PN509

And I note in this regard that the union in its submissions in reply didn't distinguish or challenge the decision in McMahon Contractors in any way. Further to that, Commissioner, we would say that the decision in that case is consistent with a number of other decisions that the Commission has issued. I'll list them but I won't take the Commission to them. It's a decision of Senior Deputy President Cartwright in Mond Constructions Pty Ltd and Another, which is print PR937011 in our folder of authorities, CEPU v Telstra Corporation Limited, a decision of Vice President Lawler, print PR933892, a decision of the Full Bench in ASU v Automated Meter Reading Services in print PR922053, and also I think is one of your decisions, Commissioner, AFMEPKIU v Groote Eylandt Mining Company Pty Ltd, print PR964788, a decision on 7 November 2005.

PN510

And therefore, Commissioner, we submit that there's no contention at all that this must be a dispute over the application of the agreement for the Commission to have jurisdiction. Turning now to the proper characterisation of the dispute. Commissioner, in our submissions, and we have provided cases for this in the written submissions which we filed, these cases illustrate that it's the importance of the proper characterisation of the dispute before such time as the Commission exercises any power by way of section 170LW of the Workplace Relations Act.

PN511

Those cases support the proposition that it's the elemental task for the Commission in relation to applications made under section 170LW of the Act to characterise the dispute so as to demonstrate that it's a dispute that's over the application of the agreement. And in this regard the character of the dispute can be distinguishable from the orders that have actually been sought, and also in characterising the nature of the dispute the Commission is not confined to the dispute notification document. The entire factual background of the dispute is relevant.

PN512

In this regard, Commissioner, I'd refer you to a couple of decisions. Firstly a decision of MUA v Australian Plant Services Pty Ltd, which is at tab 6 of our folder of authorities. At page 15 of that decision near the footnote - it's actually paragraph 57:

PN513

An important limitation on the Commission's power under section 170LW is the kind of disputes that may be subject to resolution ...(reads)... in settlement of the dispute.

PN514

THE COMMISSIONER: What does that last sentence mean?

PN515

MS GLYNN: Commissioner, I think it's pertinent in this case where the union has framed its request for orders in such a way that it attempts to grasp a jurisdiction nexus essentially. It's saying, or as an example of that - but I'll come to this later on - it's saying that it's not asking for the Commission to make a binding application to pay, it's not asking for the Commission to make a binding application that the agreement applies. This is about the application of those particular clauses. But in fact that's exactly what it is asking the Commission to do.

PN516

It's asking the Commission to make a determination that the Virgin Blue agreement applies in this case and it's asking not just issues about what Mr Cook should be paid in the future but whether he has been correctly paid in the past. It also is relevant to our issue about this not truly being a dispute over the application of the agreement but being a dispute over the offering of the terms of an AWA. Even thought that may not form part of the orders sought by the union that does not mean that that's not the true character of the dispute.

PN517

THE COMMISSIONER: Were those matters in dispute before this application was lodged?

PN518

MS GLYNN: The dispute about the - well, yes, Commissioner, because the AWA was offered on 28 April.

PN519

MR NORRIS: Commissioner, if I may. There was no dispute over the AWA or the offering of it.

PN520

MS GLYNN: Well, that's a question of legal characterisation of this, of the dispute, of how it's correctly legally characterised. The second case that I go to, Commissioner, is a decision of the Full Bench in AMWU v Holden Limited, which is at tab 10, print PR940366 and at paragraph 47, Commissioner.

PN521

MR NORRIS: Commissioner, just a point of clarification. The previous quote from me - sorry.

PN522

MS GLYNN: At paragraph 47:

PN523

In characterising the nature of the dispute in this matter the Commission is not confined to the dispute notification document ...(reads)... and the power sought to be invoked.

PN524

On this basis, Commissioner, we'd say it's entirely appropriate that we lead evidence on issues such as whether this is properly characterised as a dispute over the terms of the AWA. Commissioner, as we've said, it's submitted that the dispute notified by the union is not one over the application of the agreement. This is because it's solely a dispute over whether the agreement applies to Mr Cook or Jet Care in respect of Mr Cook. A dispute over whether or not an individual employee is bound by a certified agreement or an employer in respect of that employee cannot be characterised as a dispute over an application of the agreement.

PN525

And, Commissioner, we'd say in this regard there's a distinction between, firstly, a dispute about how the agreement applies or operates, and secondly, about whether or not the agreement applies or operates. The first is a dispute over the application of the agreement within the meaning of section 170LW, but the second is not. We'd submit, Commissioner, that there is no dispute in the current case about the scope, classification or remuneration clauses in the 2003 interim agreement. They are perfectly clear, there's no ambiguity in relation to those clauses. They say what they say. It hasn't been an issue in correspondence between the parties except in the context of whether or not the agreement applies at all. And that is the heart of this dispute.

PN526

The issue here is about whether the agreement applies or not and whether the employee or Jet Care in respect of the employee is bound by the agreement or not. There's no dispute about how the terms of the agreement itself apply, and in this regard the Commission doesn't have any work to do. Commissioner, we'd say that support for this proposition is found in the decision of McCallum and CPSU v Tenix Solutions which is print PR940630, which is tab 12 in the folder of authorities.

PN527

In that case the Commission decided that the issue before the Commission was whether the employer was bound by a certified agreement and that this meant that the Commission had no jurisdiction to determinate a dispute under section 170LW. The Full Bench held that a dispute solely about whether the employer is bound by the agreement could not be a dispute over the application of the agreement. And, Commissioner, that's at paragraph 44 of that decision. The decision in that issue was not a necessary preliminary step in the process of settling a dispute about the application of the agreement, but was an attempt to persuade the Commission to undertake a judicial function in issuing the declaration.

PN528

Commissioner, it's clear that Mr Norris is attempting to characterise in this case that all the Commission does is have to interpret whether the agreement applies or not as one step in a larger dispute about the scope clause or the classification clause of the remuneration clause. But again we reiterate all that he has done is pick the most obvious clauses which would have an impact on an employee such as remuneration, and they're rather a manifestation of the question of whether the agreement applies or not. It doesn't escape the fact that the main issue in dispute here is whether the agreement applies or not.

PN529

And in fact Mr Norris has made submissions today on the merits of the case which is about exactly that point, whether the Virgin Blue agreement applies to Mr Cook or not or when it commenced applying. The decision in the Tenix Solutions case concerned an appeal against the decision at first instance to the effect that a determination by the Commission of whether or not a person was a successor to a party to an agreement pursuant to the provisions of section 170NB(2) of the Act was an exercise of judicial function. Now, Mr Norris has made the point that some of the cases in relation to this concern transmission of business issues, but they can’t be distinguished on that point.

PN530

Essentially they are decisions related to whether the agreement actually applied or not. The same legal reasoning and conclusions that the Commission arrived at in the Tenix Solutions case and others that I referred to are similarly applicable here, we would submit. For example, as in the Tenix case although the union is demanding that Jet Care accord Mr Cook the entitlements of the agreement, identification of those entitlements is not the issue in question and in that case we say that the issue is about whether the agreement applies or not. In that regard we invite the Commission to read paragraphs 30 to 44 of the Tenix Solutions decision.

PN531

THE COMMISSIONER: So are you therefore saying that there is, in essence, no dispute with the association on the particulars of the clauses because the dispute is only about whether or not they apply?

PN532

MS GLYNN: Yes. I mean, Commissioner, on one reading of some of the decisions the Commission has gone as far to say that even if there is a dispute over the operation of certain clauses the fact that you have to determine whether the agreement applies or not means it’s an issue that can’t be determined under section 170LW because that is there has to be a declaration of rights of whether the agreement applies or not, even if there is a dispute to be determined at the end of it.

PN533

THE COMMISSIONER: So which authority are you referring to? I mean, I presume the question is that there’s a dispute about whether the agreement applies as well as a dispute about these other matters?

PN534

MS GLYNN: Yes. I refer in that case specifically to the minority judgement of Kaufman SDP in the AMRS case. Commissioner, we say we don’t have to go as far as that because in this case it’s properly characterised as a dispute over whether the agreement applies or not. There is no genuine dispute over the operation of the scope clause, the remuneration clause or the classification clause. We also refer the Commission to the decision of Hamilton DP in AFMEPKIU v Fyna Foods (Vic) Pty Ltd PR948285. That case concerned a dispute notification under section 170LW as well seeking orders about whether an agreement transmitted to Fyna Foods through the purchase of part of the business of the previous employer.

PN535

In that case Hamilton DP also applied to Tenix Solutions case and held that the question of whether certain persons are entitlement to the benefit of a certified agreement is not a dispute over the application of the agreement, but an exercise of judicial power. It was held that the only real issue before the Commission was declaratory of legal rights, that is whether the employees were entitled to the benefits of the agreement. And again, Commissioner, we’d say that the essence of what ALAEA is saying is whether Mr Cook is entitled to the benefit of the remuneration clause or the benefit of being classified under the agreement or the benefit of the scope clause which is a more appropriately characterised dispute over whether the agreement applies or not rather than over the application of those clauses.

PN536

We’d submit that this case is analogist to that Fyna Foods case as well. Commissioner, another case that we would take you to is actually a decision which you gave in AFMEPKIU & Ors v EDI Rail Pty Ltd PR960290
18 July 2005 and that’s at tab 5 of our folder of authorities. In that case, Commissioner, I’m sure that you would recall that a dispute arose at the payment of employees during periods of purported industrial action and in that case the question was whether the conduct of the employees were valid in the definition of industrial action under the appropriate section of the Act.

PN537

In that case as well the parties had notified a dispute under the dispute resolution clause in the relevant agreement on the basis that the dispute was about the obligation to pay wages under the agreement. We’d say a similar tactic has been used in this case, that there has been an attempt to represent this is a dispute over the payment of remuneration, whereas again it’s a dispute over whether the agreement applies or not. Commissioner, we’d say that your characterisation of the dispute in that case was correct and that when you held that the Commission was not merely interpreting a provision of the Workplace Relations Act along the way of fulfilling it’s determinate function in relation to a differentiated dispute, but was interpreting the legislation as a means of determining the dispute itself.

PN538

In this case we say what the union is asking is an interpretation of the agreement as a means of determining the dispute itself. In the present case there’s no ambiguity about the remuneration clause in clause 29 or the classification clause in clause 29 or the scope clause in clause 3. The terms of those clauses are clear. There is a dispute over whether the agreement applies to Mr Cook or not or Jet Care in respect of Mr Cook. If the Commission made a determination about the rates of pay or classifications in clauses 28 and 29 of the agreement, that would not resolve the current dispute.

PN539

To resolve the current dispute requires a determination according to the union and their submissions and dispute notifications that they filed over whether the agreement applies or not. In this regard, Commissioner, we would say that both parties are at one in relation to the meaning of clauses 28 and 29 of the 2003 Virgin Blue agreement. In that where there is an entitlement to be paid by the employer the classifications and rates pursuant to the certified agreement do and must apply, but that’s not the real question which the union is seeking to have answered. The question that the union is seeking to have answered involves an impermissible exercise of judicial power and it’s not a dispute over the application of the agreement.

PN540

Commissioner, we would refer you specifically to paragraph 46 of the EDI decision. A further decision that we would say is also supportive of our view is CFMEU v Singleton Coal Haulage Pty Limited PR943155. We’ve overlooked including that in our list of authorities, so I do have a copy to hand up.

PN541

THE COMMISSIONER: Yes. I’m not too sure the Groote Eylandt decision that you referred to earlier is in there either. Not so much for my- - -

PN542

MS GLYNN: Sorry, Commissioner. I did have a copy to hand up as well.

PN543

THE COMMISSIONER: Well, it’s not so much to my disadvantage nor with Singleton.

PN544

MS GLYNN: I apologise, Commissioner. I realise that.

PN545

THE COMMISSIONER: Is this the Full Bench on the Singleton mine one, is it?

PN546

MS GLYNN: It’s not, actually. It’s a single Commissioner decision. I must admit I wasn’t actually aware of it being appeal, Commissioner, sorry.

PN547

THE COMMISSIONER: Yes, this was appealed.

PN548

MS GLYNN: Commissioner, in relation to that then I won’t do any more other than refer the Commission to paragraph 18 of that decision.

PN549

THE COMMISSIONER: I know that because I was on the appeal which is always helpful, but I'll leave it for others to do their homework on what it says and what it’s got to say.

PN550

MS GLYNN: Commissioner, in making submission that the dispute is solely about whether the agreement applies or not we refer you to parts of the union’s documentation. For example, Commissioner, paragraph 3 of the original dispute notice in this matter which was filed on 29 July 2005. In paragraph ALAEA states that the matter concerns whether or not Mr Cook’s employment is covered by the Jet Care Aircraft Engineers Virgin Blue Interim Agreement 2003 and its appropriate rate of pay. We say, Commissioner, that that’s a very clear signal that this is a dispute which is about whether the agreement applies or not.

PN551

We also note in paragraph 4 of that dispute notification, Commissioner - and I'll mention this later on - that it’s actually the union that brings up that the company has entered into and is currently in AWA bargaining negotiations and that the union has been appointed as a bargaining agent for Mr Cook and reference is made. So for the union to now turn around and take exception to that issue being raised by us as part of our jurisdictional argument and as a proper characterisation of the dispute in this matter we say is disingenuous, Commissioner, because they were the first one who raised it and presumably they’ve raised it in their dispute notification for a reason and on the contention that it’s relevant to these proceedings.

PN552

Commissioner, we’d also refer to the second dispute notification which was filed by the union. In paragraph 1 of that dispute notification there’s also suggestions that this is properly a dispute about whether the 2003 agreement actually applies or not. For example, paragraph 1(a):

PN553

At any time from 23 December 2003 -

PN554

So they’re not just seeking an order that the agreement applies from this date, they are seeking an order that it applies at any time from 23 December 2003 -

PN555

Mr Cook was respondent to the agreement. His terms and conditions of employment are covered by terms and conditions written in the agreement.

PN556

We say that paragraph 1(a) of the amended dispute notification clearly sets out what the true characterisation of this dispute is. Commissioner, we also make reference to the union’s submissions which were filed on 17 November 2003. paragraph 3 of those submissions we say set the position out quite clearly:

PN557

Jet Care and ALAEA, Mr Cook, disagree on the fundamental issue of whether all or some clauses of the two abovementioned agreements should apply to
Mr Cook.

PN558

That’s the fundamental issue as they characterise it, Commissioner, not just as we’ve characterised it. No reference to a dispute over the way in which the classification clause has been applied, no reference to whether there’s some ambiguity or dispute over what Mr Cook should be paid if he is a Virgin Blue LAME. There’s no dispute over that, Commissioner. It’s quite clear from the terms of the agreement. Additionally, even if there’s a dispute which is whether at some stage Mr Cook’s employment has change so that it’s enlivened the Virgin Blue agreement at some stage in his employment, that’s still a dispute over whether the agreement applies to him or not. It’s not properly characterised as a dispute over that particular clause in the agreement.

PN559

So, for example, at paragraph 6 of the union’s submissions:

PN560

Mr Cook’s employment changed in such a manner that would enliven payment of the rates and methods of remuneration in the agreement and consequently the recommendations.

PN561

That’s still a dispute over whether the agreement actually applies to Mr Cook or not. Additionally paragraph 4 of the union’s submissions:

PN562

The threshold disagreement being over the application of clause 2 of the interim agreement and clauses 2 and 3 of the agreement as they apply or not to Mr Cook’s employment. Hence the dispute is about the application of one or more terms of the agreement.

PN563

Commissioner, we would submit that you can’t say that the dispute’s not properly characterised as whether the agreement applies to Mr Cook or not because somehow it’s a dispute over the operation of the scope clause of the agreement. Those two things are the same, Commissioner. I mean, you’ve got to look at something when you’re determining whether the agreement applies. Again, Commissioner, we’d put to paragraph 55 as well of Thomas Cook’s statement where he says:

PN564

I claim that I should be paid as a B737NG Avionics LAME under the Jet Care Certified Agreements.

PN565

We say that that’s also supportive of the view that this is really a dispute about whether the agreement actually applies to Mr Cook. No mention in that of the particular clauses of the Virgin Blue agreement which Mr Norris has raised today. It follow from that, Commissioner, that this can’t be a dispute over the application of the agreement under section 170LW as required. I just turn to our issue about the proper characterisation of this dispute as being over the terms of an offer in an AWA. We’ve pointed out that it’s the job of the Commission to properly characterise the dispute. We’d also say that the identification of the matters in dispute is a question of fact and the Tenix Solutions case at paragraph 36 is authority for that.

PN566

Again we’ve referred to the disputes notifications filed by the union on
29 July 2005 and also their correspondence to leave little doubt about what is the proper characterisation of the dispute. Commissioner, there is a flavour going through the correspondence which is passed back and forward between the union and the company since April which indicates that there is a dispute over the terms the basis upon which the AWA has been offered and the rate of pay on which the AWA has been offered. In that regard, Commissioner, we refer to the statement of Glenn Crawford, specifically attachment GC8 which first indicated that there was an AWA offer on the table and that there were negotiations as it’s described by the union for the AWA.

PN567

Again there should be no controversy about that given that it’s in the union’s original dispute notification. Secondly, Commissioner, in attachment GC11 to Glenn Crawford’s statement a letter from Garry Norris which sets out terms and conditions in the AWA which he considers should be changed. And probably more relevantly, Commissioner, is GC13 a letter from Mr Norris to Mr Crawford dated 29 July 2005 and I'll just read that letter:

PN568

Thank you for your reply of 22 July 2005. It appears the fundamental issue to be resolved is what is the appropriate pay rate and whether or not that should be based on the certified agreement rates as where the AWAs for other NG licensed LAMEs.

PN569

And you have to read that paragraph in context with the heading which is AWA Bargaining. So certainly at 29 July 2005 - and that’s when the first dispute notification, the same day the first dispute notification was filed - the fundamental issue to be resolved was the appropriate pay rate in the AWA. Commissioner, we’d say that’s very persuasive evidence of both Mr Cook and the union’s state of mind at that time. We also refer to the evidence which has been given by
Mr Smith and Mr Crawford today about what their understanding was of the dispute with the union as evidenced by the meeting on 10 October this year and what their understanding of what would resolve the dispute.

PN570

On the basis of that, Commissioner, we’d say that this is not a dispute over the application of the agreement, but it’s more properly characterised as one over the terms of an offer of an AWA and therefore the Commission does not have jurisdiction to deal with this matter. Finally, Commissioner, I just want to touch on the issue that what the Commission’s being asked to do is an exercise of judicial power in the nature of a declaration or interpretation of the certified agreement or we’d say even in the nature of a de-facto recovery of wages action, but it’s probably more appropriately characterised as an interpretation of the certified agreement.

PN571

In this regard, we’d submit, if it does what the ALAEA is requesting then the Commission would be purporting to exercise judicial power in making a binding declaration and that this is beyond the jurisdiction of the Commission. The union appears to be contending that what it’s asking here is the Commission to do no more than ascertain what was the legal position as a step along the way of settling the dispute over the application of the agreement. But with respect, Commissioner, we disagree with this characterisation and as we’ve said, we submit that it’s about whether the actual agreement applies or not.

PN572

In order to invoke the operation of the classification and remuneration clauses in the agreement there must be a dispute over the application of the agreement. For example, there must be a dispute as to whether a particular employee should be classified in one category or another. We’d say that isn’t the case here. We’d say that in this instance the Commission is being asked to determine whether the agreement actually binds Jet Care, not as a step along the way to dealing with a dispute over the classification, for example, but as the actual nature of the dispute itself. If the agreement does not bind Jet Care then there can be no dispute.

PN573

Sorry - if it is accepted that this is a dispute over whether the agreement applies or not then there can’t be a proper exercise of the Commission’s power and it’s a question of law. To put that another way in this case we say that there’s no dispute over the application of the agreement because the real dispute is whether or not the agreement applies. It’s not about how the agreement applies or operates, but rather it’s about whether the agreement applies at all. Just in relation to the remuneration classification clauses which have been indicated, as we’ve said they are issues which are, I guess, examples of the outcome of whether the question of whether the agreement applies to Jet Care or not is actually determined. That’s not the actual dispute.

PN574

The training issue is probably something which is a little different. We would say that the training dispute, Commissioner, is an issue which has been tapped on at the last minute. It does not detract from the fact that the real issue to be determined in this case is whether the agreement applies or not. If the issue of the training clause was determined in this case it wouldn’t resolve the dispute between the parties and in this case the union is effectively searching for a jurisdictional talisman to give it some nexus or some jurisdictional basis.

PN575

THE COMMISSIONER: What instrument does the training issue arise?

PN576

MS GLYNN: Commissioner, we’d say the instrument that the training issue arises under is more appropriately characterised as the award because the agreement does not apply. We submit the agreement does not apply to Mr Cook’s employment, therefore if there’s any dispute over his payment for training or payment for attending examinations then it’s a dispute more appropriately characterised under the dispute resolution procedure under the award.

PN577

THE COMMISSIONER: Mr Norris in his first, as I call them amended ground, his application, there was a dispute over the appropriate rate of pay to Mr Cook upon being qualified as a licensed engineer during the period of the secondment. In that context there’s no dispute between the parties that for the period of the secondment the Virgin Blue agreement applies, is there? There’s no dispute that during the period of what the company calls the secondment that the Virgin Blue terms and conditions applied for that period?

PN578

MS GLYNN: That’s correct.

PN579

THE COMMISSIONER: And Mr Norris has said that there is a disagreement with the company over during that period whether Mr Cook should have been remunerated as an unlicensed engineer or a licensed engineer. Why is that?

PN580

MS GLYNN: Sorry, Commissioner, if I can just clarify what I said before. There was no dispute that the terms of the Virgin Blue were applied to Mr Cook.

PN581

THE COMMISSIONER: Yes, I’m conscious of that distinction between being employed and under having the terms and conditions apply for the purposes of the secondment in your argument. What I’m trying to get at then is the first amended ground that Mr Norris articulated was during the period of the secondment when the terms and condition of the Virgin Blue agreement applied so there’s no dispute between the parties that the terms and conditions of the Virgin Blue contract applied during that period, there is a dispute about whether the unlicensed or the licensed rate ought to apply upon that such time as when Mr Cook became qualified.

PN582

Now, what I’m interested in knowing is why is that particular question not a dispute about the application of the agreement?

PN583

MS GLYNN: There’s a dispute over whether - I mean, the terms of the agreement were applied to Mr Cook, but under the scope clause of the 2000 agreement imported into the 2003 agreement, the agreement can only apply if the employee is employed to perform Virgin Blue work.

PN584

THE COMMISSIONER: So your argument is that he was never employed under that agreement and therefore there can’t be an application concerning how that agreement applies to him.

PN585

MS GLYNN: Correct. The question has always been in relation to the first issue of whether the agreement actually applies or not, rather than take it as a given - the agreement applies, what classification should he be paid under? In relation to the training issue, Commissioner, the company has indicated that it has no problem with the terms of the actual clause, in clause 26 of the award, that it will pay Mr Cook in relation to the period that he has spent in examinations. So we say that there’s no dispute about that issue. The union may have another point of view in relation to that.

PN586

But if it’s accepted that there is actually a dispute in relation to the issue of training and payment for preparatory work for examinations then we would submit that the issue that should go forward and be determined on its merits should be limited to the issue of training only. I mean, we would argue that that’s not the real nature of this dispute and that this dispute is about whether the agreement applies or not and that it’s more appropriate for that matter to be dealt with under the disputes procedure in the award because the agreement does not apply to Mr Cook. But if those arguments are not accepted, Commissioner, then we would argue that the issue to be determined on its merits should be restricted to that.

PN587

THE COMMISSIONER: From my recollection there are now three elements to that are claimed as raised by Mr Cook. One is that there is an outstanding issue in relation to the payment for the period over which the examinations themselves were conducted, there is the dispute about whether or not the preparatory time in relation to those exams constitutes the purpose in relation to the clause and then thirdly the late amendment, if you like, the late listing, if you like, that there is a travel allowance issue arising as to allowances that are obliged to be paid in relation to work that has been carried out at the employers request. From memory it was clause 28.

PN588

MS GLYNN: Well, the travel allowance issue is a first time that we’ve heard about that.

PN589

THE COMMISSIONER: Yes, I did call it as a late listing. So there are some dimensions to that. I’m not going to the merits of it, but that’s sort of the dimensions of that dispute. But in any event you seem to be saying, your submission appears to be that that should be - on your submission - that the status of the agreement you’d be saying that this should be properly a dispute brought up perhaps eventually under the dispute resolution clause in the agreement and ultimately perhaps by way of a section 99 application to the Commission because it’s an award related dispute related context?

PN590

MS GLYNN: Yes. We’d say that it’s more appropriately determined in that way. It should be permissible, Commissioner, that a party is able to create a dispute over the application of one clause in the agreement which is not the main issue to be determined in order to give the whole issue some jurisdictional underpinning.

PN591

THE COMMISSIONER: That’s a distinct issue, but I understand.

PN592

MS GLYNN: The other point I guess we’d make about the training issue, Commissioner, is that the union has said that they’re not asking the Commission to make a binding application to pay money in relation to that. But if you look at all of their submissions, Commissioner, it’s all about requiring some interpretation or requiring some order that the company has incorrectly paid Mr Cook in relation to that. We say what they really are asking for is a claim for either interpretation of the agreement or a recovery of wages action. That’s essentially what they’re asking and there are other appropriate forums in which for them to pursue that.
If the Commission was to make orders in respect of that then that would be an impermissible use of judicial power.

PN593

Commissioner, I’d refer you to our written submissions in relation to the impermissible use of judicial power by the Commission and the underpinnings for that. Commissioner, in support of the proposition that what the union’s actually asking is for an interpretation of the agreement or some underpayment in respect of the agreement or some orders in relation that Jet Care has breached the agreement, there is also some other correspondence that we would refer to. We say that paragraph 3 of the original dispute notification which we’ve alluded to before clearly shows that this is a request for an interpretation of the agreement and that is that it applies to Mr Cook and Jet Care in respect of Mr Cook and again we’d refer to paragraph 1(a) of the second dispute notification which was filed on
11 November.

PN594

We’d also refer to a letter from Mr Norris to Mr Crawford dated 3 June 2005 which is referred to in paragraph 27 of Mr Crawford’s statement. That’s attachment GC10 to Glenn Crawford’s witness statement and that letter is headed Alleged Breach of Award and Certified Agreement. We say that the first paragraph is particularly relevant:

PN595

Please be advised we are acting on behalf of ALAEA member Thomas Cook who we believe, prima face, has a valid claim for payment of appropriate rates and back pay and if not paid may constitute breaches of the award and the certified agreements.

PN596

Commissioner, we’d say that’s a further indication of the true intention of what the unions are actually seeking in this claim and that it’s only been quite a recent matter that they’ve limited the order that they’re seeking today. Support for the proposition that interpreting whether a particular clause of an agreement applies to an employee or not is a judicial rather than an arbitral power. It can also be found in another one of your decisions, Commissioner. CPSU v Australian Customs Service which was again, in that case the Commission held that the relevant disputes procedure didn’t empower the Commission to arbitrate under section 170LW.

PN597

Commissioner, I apologise, that’s not actually in our bundle of documents, but I have a copy of it as I understand. In that case, Commissioner, you were considering the ability to arbitrate the matter in issue under section 99 and you held that the Commission could not arbitrate a dispute about the interpretation of an agreement because to do so would be a judicial rather than arbitral function. And in relation to that, Commissioner, we refer you to pay 18 of that decision. Finally, Commissioner, the last point I just want to make which we’ve made previously is there have been some submissions led today on the actual merits of the application.

PN598

For example, on the application of the interim agreement and that it applies to all employees. The 2003 interim agreement applies to all employees on site, but we certainly do dispute that, Commissioner. Again that’s a dispute over who the agreement applies to, but we would certainly be seeking to lead evidence on that if this matter proceeds further about the proper interpretation of that clause of the agreement. Commissioner, unless you’ve got any questions they’re my submissions.

PN599

THE COMMISSIONER: Good, thank you. Mr Norris.

PN600

MR NORRIS: With the indulgence, Commissioner, given the late hour of the day and given that we’ve adduced fresh evidence from Mr Crawford and
Mr Smith we’d seek the indulgence of the Commission as being able to lodge a written submission in reply, say by Tuesday, and whether the transcript could be made available to us because the evidence, in effect, of Mr Crawford and
Mr Smith go down to the nub of whether there is in fact a disagreement on the application of clauses in the agreement. If it is established on their evidence there is in fact disagreement between the parties then effectively there is a dispute over the application of the agreement. We’d like the opportunity to go back over that transcript and to summarise our submissions based on that evidence.

PN601

MS GLYNN: Commissioner, we strongly object to that as giving the union an unfavourable advantage. My clients have travelled from interstate to be here today. There’s no reason why we can’t conclude the hearing today and there wasn’t considerable evidence given. It’s not a matter which has hours of evidence which requires the use of transcript.

PN602

MR NORRIS: Commissioner, if I could, it wasn’t the intention to create a situation of disadvantage for the other side. Effectively if Freehills want to make some sort of response to ours I don’t object to that. It’s really a matter of expediency given that I’ve come from interstate today too and given daylight savings it’s very difficult to get back at the appropriate hour. Having said that we’d like the opportunity because this matter is particularly of importance and as you can see Freehills has raised some fairly technical legal arguments in regard to this and we’d like the opportunity to be able to adduce the evidence and respond to it appropriate.

PN603

I mean, I could stand here today and say that the evidence of Mr Smith and
Mr Crawford admitted that on each occasion there was a disagreement over the application of the dispute, but I’m afraid that might be as general as saying that’s a five. So we certainly would like that opportunity.

PN604

THE COMMISSIONER: So just to clarify, you’re seeking the opportunity to put your submissions in reply in writing and you’re also saying that the employer should consequently have an additional right of reply in writing if warranted?

PN605

MR NORRIS: Yes, Commissioner. I mean, the intention wasn’t to seek an advantage. The intention was to expedite the proceedings in relation to the late nature of the day. Again, given that from our view the evidence of Mr Smith and Mr Crawford is crucial because effectively no matter what spin Freehills want to put on it the understanding of Mr Crawford and Mr Smith in regard to what is actually in disagreement effectively coins the nature of the dispute. Now Freehills object to that. I mean it was their evidence.

PN606

MS GLYNN: Commissioner, we don’t object to any evidence that Mr Crawford or Mr Smith gave.

PN607

THE COMMISSIONER: No, the issue is about how we’re closing. Let’s not get into a debate about other matters, though. The issue really is how are closing submissions to be dealt with. Mr Norris has sought a delay, in effect, for the purpose of composing his response. An alternative would be that instead of parties being put to the requirements to produce further written materials that I take Mr Norris’ closing submissions and the company’s submissions in reply by video conference on Tuesday.

PN608

MR NORRIS: We wouldn’t object to that, Commissioner.

PN609

MS GLYNN: Commissioner, we would press for the matter to be finished today.

PN610

THE COMMISSIONER: Look, I take your point Ms Glynn. I have sympathy with it and it was my expectation also that in the normal course of events that the matter would conclude in the normal manner. It’s always the Commission’s endeavour to provide parties to put their best foot forward in making their submissions in relation to their particular clients an their interests and so on. It’s difficult to be put in a position to choose between preferred positions. As I said it causes me some degree of anxiety if the matter can’t be settled. I propose, however, that I don’t want to increase transaction costs for both parties, I don’t want to require them to put more submissions if it can be avoided in writing, particularly for closing submissions.

PN611

Can the parties give some thought to whether or not there would be a convenient time next week for closing submissions, that’s from Mr Norris, and final submissions in reply from Ms Glynn by video conference at a time that’s most convenient to themselves?

PN612

MS GLYNN: Commissioner, can I say if the Commission is minded to go down that path we probably would prefer written submissions rather than video conference simply because next week people are on annual leave and it’s a very difficult week.

PN613

THE COMMISSIONER: Okay then. If that’s easier. Is that the preferred position then, Ms Glynn?

PN614

MS GLYNN: It is, Commissioner. If we were going to do that if there is any way of prevailing for the day to be after Christmas?

PN615

THE COMMISSIONER: Well, I’m afraid, Mr Norris, you’re in the hands of the other side seeking the initial concession. So, Mr Norris, if you can - look, this all depends on whether - we just might adjourn if we work out some logistical issues for transcript.

<ADJOURNED INDEFINITELY [4.39PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

THOMAS LEIGH COOK, SWORN PN241
EXAMINATION-IN-CHIEF BY MR NORRIS PN241
EXHIBIT #A1 STATEMENT OF THOMAS LEIGH COOK PN263
THE WITNESS WITHDREW PN264
CHRISTOPHER LYNDON RYAN, AFFIRMED PN265
EXAMINATION-IN-CHIEF BY MR NORRIS PN265
EXHIBIT #A2 STATEMENT OF CHRISTOPHER LYNDON RYAN PN271
THE WITNESS WITHDREW PN274
GLENN ROBERT CRAWFORD, SWORN PN290
EXAMINATION-IN-CHIEF BY MS GLYNN PN290
EXHIBIT #R1 STATEMENT OF GLENN ROBERT CRAWFORD PN295
CROSS-EXAMINATION BY MR NORRIS PN308
THE WITNESS WITHDREW PN436
LACHLAN HOWARD SMITH, SWORN PN437
EXAMINATION-IN-CHIEF BY MS GLYNN PN437
EXHIBIT #R2 STATEMENT OF LACHLAN SMITH PN442
CROSS-EXAMINATION BY MR NORRIS PN447
RE-EXAMINATION BY MR GLYNN PN492
THE WITNESS WITHDREW PN495