C2005/26, Transcript of Proceedings [2005] AIRCTrans 685 (21 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10867

SENIOR DEPUTY PRESIDENT LLOYD

C2005/26

s.99 - notification of an industrial dispute

Transport Workers' Union of Australia
and
Qantas Airways Limited
(C2005/26)
Airline Operations (Transport Workers') Award 1998

MELBOURNE

2.59PM, THURSDAY, 10 MARCH 2005

Continued from 21/2/2005

TECHNICAL MALFUNCTION 90 SECONDS NOT RECORDED

PN27

MS RICHARDS: I would like to seek to make one amendment to that. In relation to point 4 on the first page, I would seek to draw a line through that first dot point, Airline Operations Qantas Airways Limited Award 2000, that is actually a typographical error and that award does not exist, so I would seek to make that amendment. And I would also seek, in accordance with directions, to hand up a copy of the authority relied in our submissions entitled in re Shift Workers Case 1972, and that marked as well.

EXHIBIT #R2 AMENDED DOCUMENT

PN28

MS RICHARDS: Perhaps, your Honour, my suggestion would be to agree with Mr Mills in relation to how we proceed. Perhaps if I can just provide for transcript purposes just a brief outline of the history of the dispute and what the Transport Workers Union are seeking to how to proceed in relation to this matter. The dispute relates to the interpretation of clause 27.4.7 of the Airline Operations Transport Workers Award 1998. I won't seek to read out that clause as both parties are quite aware of how that clause reads, and I am sure, your Honour, you have a copy of that.

PN29

Both parties have generally found that there has been some dispute at different sites across Australia over history in relation to this clause, and the parties both thought that it best to seek to have the matter listed with yourself to seek to - if the parties aren't able to come to some type of arrangement, seek a recommendation from your Honour in relation to how this clause is best interpreted, so both parties can move forward and hopefully prevent any further disputation in relation to this particular clause.

PN30

On page 3 of my submissions I outline the Transport Workers Union's claim. That claim is argued in the alternative, but I basically just seek to highlight the pertinent aspects of each of the claims. In relation to the claim that we submit at point 11(a), the basis of that claim is that the clause should be read based on an individual entitlement based on an individual's working roster, so we seek the basis of that claim to be that it be determined on a single employee's shift work, and whether they work in an international operation, a Qantas operation where the work is integrated between international and domestic. My understanding would be that would be the situation that would occur at most operations in Melbourne.

PN31

The final point there provides for work from the domestic operations, but is also required on occasion to perform duties in the international operation. That has been drafted that way to provide for circumstances where, for example, you might have employees who work in the light aircraft area, who are generally engaging in domestic duties, but for a portion of that particular shift they would be assisting in international operations. So that clause has been drafted that way by the parties in recognition of that type of work.

PN32

And also the clause, our interpretation provides that it be based on where any shift work does not continue for at least five consecutive afternoons in a roster week, or night shift does not continue for at least five consecutive nights in a rostered week. Our other claim in the alternative, point B on page 4, is that if the Commission decides that the clause should be read based on a shift roster, so that would be based on a roster and not on an individual's entitlement, and based on a work group, then we would seek to provide that where employees in those operations are, as stipulated in the previous claim, engaged in shift work and the roster does not provide for five consecutive afternoon shifts over a period of five consecutive days over a roster week, or where the company does not publish a roster which provides for five consecutive night shifts over a period of five consecutive days in a roster week, then the entitlement would be paid.

PN33

In the alternative, we have provided at point C that if the Commission determines that the entitlement is paid based on a work group and, again, for the same types of operations, then we would concede that the entitlement should be paid over five consecutive afternoon shifts or five consecutive night shifts. I have just noticed an error in my submissions, if I could seek just to correct that on the record. At point C, point number (iii), if you could delete the words "to be worked over a roster week" in the last sentence.

PN34

THE SENIOR DEPUTY PRESIDENT: This is on?

PN35

MS RICHARDS: This is on page 4, point C (iii), the second last line of the last sentence, if you delete the words "to be worked over a roster week." I just noticed that. Our submission goes into detail of the rationale of our claim. Unless there is anything that the Commission would seek to clarify, I think that's the basis of our submissions, and we would be happy to hear from Qantas on the record. I don't seek to go into conference or anything.

PN36

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Richards.

PN37

MR MILLS: Thank you very much, your Honour. The company filed and served in the Commission and the Transport Workers Union on 3 March 2005 Mr Avalon's submissions in this matter. (3.08.40) If we could have that tendered.

EXHIBIT #M1 COMPANY SUBMISSIONS

PN38

MR MILLS: Further to that position the company made reference to a particular decision of the Federal Court of Australia, and made some implied reference to a sitting also of the New South Wales Industrial Relations Commission, a decision of Sheedy J in 1970. I will provide a copy of those references for the Transport Workers Union.

EXHIBIT #M2 DECISION OF SHEEDY J (1970)

PN39

MR MILLS: Your Honour, we rely obviously on our submissions. Ms Richards has taken you in some part to some very brief history of disputation in relation to the matter. I think it's fair to say that the matter has attracted an unusually large amount of disputation in its interpretation, and one could argue that part of it is because of the particular ambiguity of the way in which the clause is drafted. The draft of the clause, however, should come as no surprise to any individual who has some work history, is the best way of putting it, within industrial relations. As Ms Richards has effectively gone to in her own submissions, the clause itself has a long genesis and is consistent with, should I say, the standard clause that exists in the Metal Industry Award, and it is obviously clearly covered off in a number of other awards that bind Qantas and its employees, almost in, you could say, exact format.

PN40

And I might add, the interpretation that the company applies only seems to cause problems in relation to the application in this award. The application of the same clause in other parts such as engineering, where this matter has come up previously, the matter then would particularly fail once the explanation particularly contained in the decision of Sweeney J dated 8 November 1978, is debated and discussed between the parties.

PN41

In relation to the TWUs submissions we just make a couple of very brief points. At point 11, where Ms Richards has taken you to, we simply refer the company to our submissions at point 7, and particularly the decisions of Sweeney J and Sheedy J that we have handed up to you at exhibit M2. And in particular if you go to point 7 of M1, which is the company's submissions, it is fairly critical there because Sweeney J adopts in part the words of Sheedy J in the decision in 1970 in the Kembla Coal matter, Kembla Steelworks matter, and Sweeney J simply says:

PN42

Observe the provision concerned does not refer to weekly periods, and the condition for the payment of time and a half is simply that the shift does not continue for at least five ...(reads)... cases.

PN43

That is the clear distinction. The term continuous work is (1) actually about the work performed by an individual. It's actually work performed within the operation. So if the operation has a continuous shift operation which would be five continuous afternoons and five continuous nights, it doesn't necessarily mean that an employee doesn't work those five continuous afternoons or five continuous nights, that they trigger the 50 per cent penalty. And, in fact, I think you will find, if you look a little bit more closely in the decision of Sweeney J, which referred actually to security guards employed by Qantas at the time, that it was acknowledged that 50 per cent penalty is to be paid in instances where the company requires people to do work that has never been performed on that particular shift. So that work is not performed on that particular day or that particular situation, say afternoon or night, then therefore that is when it is triggered.

PN44

Now, an important point we could go to further here is, the submission the TWU makes would actually be, in our view, seeking the Commission to make a determination, recommendation, decision or whatever, that in effect overturns what has been a fairly well established principle as opposed to practice for at least nearly 25 years. And one would assume that the Commission is not really in a position to do that. Further to that at point 11(b) of the submissions of the TWU, there is reference to the issue of roster period. This is really an important point here because it's a twofold argument in effect.

PN45

Firstly, if you accept the argument that the word continuous refers to company operations as to opposed to the individual, which we say the decision that Sheedy gave clearly outlines, the question then becomes, well, the question the TWU is putting to you for consideration is to what effect does that actually mean in relation to the word consecutive? And the argument from the TWU is that in a roster cycle that, for example, we have at Melbourne Airport that runs from a Wednesday through to a Tuesday, if the work is not continuous within that particular roster period, then therefore this clause is triggered. We say that that is incorrect. We say, more importantly, if you read at point 2 of the submissions of the company, that there is no reference whatsoever to roster cycle, pay period. It simply refers to the important point of consecutive.

PN46

So it doesn't matter where those five afternoon shifts and five nights appear in any one consecutive period. The bottom line is, consecutive means at a logical sequence, one after the other, for the simple fact that the company runs a continuous operation from Sunday through till Thursday five afternoons or five nights. There can be no payment made in that regard or, in effect, it is not triggered. Now, I don't choose to go to any issue around the history, and Ms Richards has give you a reasonably good history of the reason why the shifts are a partnership - I think it's an important point to make, but I don't necessarily see if they are material to the actual application and interpretation of this particular clause.

PN47

Suffice to say that employees engaged under the terms and conditions of this award are paid the penalty provisions that apply for work they perform, and that in itself is not an issue. So the issues of health, sociability, are already compensated for in effect by the way in which the award has been structured. And clearly we are not here - there is not an application before you today in relation to a variation to the shift penalties. I don't seek to go to that too much because I don't want to give people the thought that that might be an option.

PN48

There is an important point, and the TWU make take you to it, is that they haven't - they have raised it certainly in their submissions. There is an important point at point 25 where we had a circumstance where the TWU opening submissions say "We submit that it has been custom and practice for Qantas to interpret the eligibility for payment in accordance with clause 27.4.7(a) based on the rostered work." And the example being Melbourne Airport up until June 2003. We would in some way not necessarily disagree, but we would reject it as on this basis.

PN49

One of the reasons why it has been custom and practice is because employees had exercised or had taken, what we would say, industrial action previously in relation to this matter. And in particular I refer to a letter - and I don't have a copy here, but can obviously make it available when we go into conference - on 31 July 2001 from the then manager of Melbourne Airport, Mr Eisenmenger who said:

PN50

As an outcome of discussions held with TWU delegates at Melbourne Airport, it is therefore agreed that Qantas will, without prejudice -

PN51

And Mr Eisenmenger was of the view that the interpretation that the company is putting to you today is the correct interpretation. There was disputation around the matter, he was prepared on a without prejudice basis to avoid industrial disputation to concede to that point. More importantly, there was a significant matter of industrial disputation between the parties, where a section 127 application was made before this Commission in September or October 2003. Mr Eisenmenger gave transcript evidence to that effect to say that the industrial disputation had occurred in relation to this particular issue, where the company had conceded the interpretation of the TWU on the basis of industrial - threatened or happening industrial action.

PN52

So that I think probably covers off a little bit more of the point that Ms Richards was making, which is, it has been the source of some significant disputation between the parties for some time. And we would say that on occasions, be it right or wrong, with our arm up behind our back, it's conceivable. The company's position on this is fairly clear. We would rely back on the opening submissions, in particular M1, and we just make the point, as we make in our final point, that the clause contains no reference to any term referring to roster week or roster cycle.

PN53

To read down the clause means the 50 per cent allowance would apply in every case when afternoon or night shift is worked on five of seven days in a week, unless the days where the afternoon or night shift is not worked at the beginning or end of the roster week, it is just a nonsensical proposition. Finally, in previous decisions which we have taken you to, the Federal Court have considered the history of the clause and have made it clear that its interpretation - the system of work itself, not the work done by an individual employee.

PN54

In relation to light aircraft, that is a singular point. But we would say that where employees work predominantly in domestic operations at Qantas, and on occasions are required as part of their work in domestic operation that Qantas utilise, then the provision that covers off the provision of the award not applying to the domestic operations of Qantas Airways Limited would suffice, as we maintain. Subject to anything further the union wish to offer, we seek to go into conference in this matter with some assistance to allow the Commission to ask any questions that your Honour deem necessary. May it please the Commission.

PN55

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Mills. Is there anything you want to say, Ms Richardson, before we go into conference?

PN56

MS RICHARDS: No, I don't think there is anything, your Honour.

PN57

THE SENIOR DEPUTY PRESIDENT: We will adjourn now into private conference.

<SHORT ADJOURNMENT [3.20PM]
<RESUMED [5.33PM]

PN58

THE SENIOR DEPUTY PRESIDENT: The conference with the parties has concluded. I thank the parties for the constructive approach they took during that conference in an attempt to resolve this matter. The parties agree that I should make a recommendation, which I will now make. In recommending that approach, I consider that the decision of the Federal Court of Australia in November 1978 was instructive. I particularly refer to the observation made by Sweeney J in that decision, that the condition relates to the shift, not to the work done by an individual employee, and one must therefore look to a system of working itself, as was done in the first mentioned case.

PN59

Given that I am of the view that the interpretation which the company has been adopting in this area since April 2003, is an appropriate approach to apply in the relevant subclause, it is the company's submission that it is the system of work that is to be continuous, and not the shift patterns undertaken by the individual employees, and I recommend and adopt that as the appropriate interpretation. This means that the entitlement is to be paid to all employees covered by a work group shift roster, where the company does not roster at least five consecutive afternoon or five consecutive night shifts over any five consecutive day period.

PN60

The parties are to continue to consult on identifying the actual groups and how the recommendations apply to them. If the parties have any issues that arise in those consultations they are invited to refer the matter back to the Commission for assistance. That is the recommendation I propose to make.

PN61

Are the parties satisfied with that, or anything they want to add or clarify in relation to that recommendation?

PN62

MS RICHARDS: No, your Honour.

PN63

MR MILLS: The only issue for the company is what the definition of work shift area means. And we are going to be having some discussions with the TWU in relation to that, and we will take up on the offer to come back before you given if we are unable to reach agreement on that point. Thanks for your assistance in that area.

PN64

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Mills. I thank the parties. They have helped the Commission gain a better understanding of some issues about rostering, which was very challenging. The Commission is adjourned.

<ADJOURNED INDEFINITELY [5.37PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R2 AMENDED DOCUMENT PN27
EXHIBIT #M1 COMPANY SUBMISSIONS PN37
EXHIBIT #M2 DECISION OF SHEEDY J (1970) PN38